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ARTICLES
Deliberating the Divine
ON EXTENDING THE JUSTIFICATION FROM TRUTH
TO RELIGIOUS EXPRESSION
John M. Kang†
The justification from truth represents the most
prominent basis of legal support for the right of free speech.1
President Lee Bollinger at Columbia University, a First
Amendment scholar and a former law school dean at the
University of Michigan, has stated that the search for truth is
†
Assistant Professor of Law, St. Thomas University, Miami ([email protected]).
B.A., University of California, Berkeley; J.D., University of California, Los Angeles;
M.A., Ph.D., University of Michigan, Ann Arbor. I would like to thank the following
people who have either read the manuscript or discussed some of the ideas therein with
me, although none should be understood as necessarily endorsing anything in the
Article: Monsignor Andy Anderson, Steve Clark, Lauren Gilbert, Dan Gordon, Brad
Joondeph, Jeremy Paul, and Kim Smith. Amanda Bell and Damaris Rosich-Schwartz
provided research assistance. Lynn Bridgers, Don Herzog, and Lenora Ledwon helped
me with secondary sources, and Scott E. Page kindly gave me access to the galley
proofs for his then forthcoming book on diversity and deliberation. I presented a
version of this Article at the 2006 meeting of the Association for the Study of Law,
Culture and Humanities at Syracuse University. This Article is for Jung Won Kwak,
with whom I have argued many times about truth, religious and otherwise.
1
See William P. Marshall, In Defense of the Search for Truth as a First
Amendment Justification, 30 GA. L. REV. 1, 1 (1995) (“The most influential argument
supporting the constitutional commitment to freedom of speech is the contention that
speech is valuable because it leads to the discovery of truth.”). The First Amendment
scholar Frederick Schauer has also commented: “Throughout the ages many diverse
arguments have been employed to attempt to justify a principle of freedom of speech.
Of all these, the predominant and most persevering has been the argument that free
speech is particularly valuable because it leads to the discovery of truth.” FREDERICK
SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 15 (1982). C. Edwin Baker also
writes: “Marketplace notions are not the only strains to be heard in the chorus of Court
pronouncements on the first amendment. . . . Nevertheless, the marketplace theory
dominates; and its rejection would have major implications for first amendment
interpretation.” C. Edwin Baker, Scope of the First Amendment: Freedom of Speech, 25
UCLA L. REV. 964, 973-74 (1978); see also infra notes 2-3 and accompanying text.
1
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the “dominant value” of free speech in our contemporary
democracy.2 He explains:
In today’s discourse about free speech, the dominant value
associated with speech is its role in getting at the truth, or the
advancement of knowledge. Speech is the means by which people
convey information and ideas, by which they communicate
viewpoints and propositions and hypotheses, which can then be
tested against the speech of others. Through the process of open
discussion we find out what we ourselves think and are then able to
compare that with what others think on the same issues. The end
result of this process, we hope, is that we will arrive at as close an
approximation of the truth as we can.3
In the passage, the justification from truth appears to be
underwritten by a degree of agnosticism or a temporary
suspension of belief regarding normative matters, that is, ideas
2
3
LEE C. BOLLINGER, THE TOLERANT SOCIETY 45 (1986).
Id. Thomas Emerson explains:
[F]reedom of expression is an essential process for advancing knowledge and
discovering truth. An individual who seeks knowledge and truth must hear
all sides of the question, consider all alternatives, test his judgment by
exposing it to opposition, and make full use of different minds. Discussion
must be kept open no matter how certainly true an accepted opinion may
seem to be; many of the most widely acknowledged truths have turned out to
be erroneous. Conversely, the same principle applies no matter how false or
pernicious the new opinion appears to be; for the unaccepted opinion may be
true or partially true and, even if wholly false, its presentation and open
discussion compel a rethinking and retesting of the accepted opinion.
THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970); see also
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 785-86 (2d ed. 1988) (discussing
the potential for speech to contribute to truth).
Of course, the justification from truth is not without its critics. Stanley
Ingber remains skeptical about the basic assumptions inherent in the justification from
truth. Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J.
1, 1. His criticisms deserve the kind of careful replies that would take me outside the
scope of this Article, although I do address some of the objections. C. Edwin Baker also
writes that the “hope that the marketplace leads to truth, or even to the best or most
desirable decision, becomes implausible” given that, among other things, the economic
and social resources necessary to spread one’s ideas are not distributed equally in
society. Baker, supra note 1, at 974, 978. For more criticisms of the justification from
truth, see C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 12-17 (1989); see
also infra notes 112-125 and accompanying text.
For the moment, however, perhaps it will suffice to say that the
justification from truth is the dominant view in the Supreme Court with regard to the
right of free speech. Even critics of the justification from truth feel compelled to
acknowledge this fact. Professor Baker thus declares that the “marketplace of ideas
theory consistently dominates the Supreme Court’s discussions of freedom of speech.”
BAKER, supra note 1, at 7 (footnote omitted). In this Article, I work from the premise
that the search for truth is the dominant justification for the right of free speech in the
Supreme Court, and I examine the ways in which it can be applied to religious
expression.
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DELIBERATING THE DIVINE
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about what is right and wrong.4 The right of free speech under
this justification is not logically tied to any particular
substantive outcome of public discourse. The right is, as a
formal matter, only committed to a process whereby we
“communicate viewpoints and propositions and hypotheses,
which can then be tested against the speech of others.”5 Under
this justification from truth, we value the right of free speech
not principally for the speaker’s sake but for that of the
audience. For it is the audience that wishes to be exposed to
viewpoints and ideas about which they can deliberate.6
The justification from truth possesses a majestic and
rich history in both Western political theory as well as federal
Supreme Court cases, and it has enlisted the considerable
powers of figures like John Stuart Mill and Oliver Wendell
Holmes, Jr.7 So attractive has been the justification that it has
been conscripted by judges in the areas of political speech,8
commercial speech,9 and even pornography.10 Curiously,
4
Similarly, Bollinger has suggested that the toleration demanded of us by
the First Amendment requires “a willingness to compromise and a willingness even to
accept total defeat. . . . Democracy, like literature, it may be said, requires a kind of
suspension of disbelief.” BOLLINGER, supra note 2, at 117. Frederick Schauer has also
stressed the fallibilism of the justification of truth by clarifying that the justification
seeks “knowledge,” which can be provisional as opposed to “certainty” which cannot.
SCHAUER, supra note 1, at 16, 18.
5
BOLLINGER, supra note 2. Robert Post offers a similar treatment of public
discourse and the First Amendment. ROBERT C. POST, CONSTITUTIONAL DOMAINS:
DEMOCRACY, COMMUNITY, MANAGEMENT 277-78 (1995). Frederick Schauer also argues
that according to the argument from truth, “[o]pen discussion, free exchange of ideas,
freedom of enquiry, and freedom to criticize . . . are necessary conditions for the
effective functioning of the process of searching for truth.” SCHAUER, supra note 1, at
15.
6
Perhaps the most well known presentation of this view in the legal
literature comes from Alexander Meiklejohn’s justification for free speech in a
democracy. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELFGOVERNMENT 24-27 (Kennikat Press 1972) (1948); see also OWEN FISS, THE IRONY OF
FREE SPEECH 2-3 (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE
SPEECH 18-20 (1993).
7
See infra Part I.
8
See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,
concurring) (urging a judicial attitude toward political speech that has faith in “the
power of reason as applied through public discussion”), overruled in part by
Brandenburg v. Ohio, 395 U.S. 444; Gitlow v. New York 268 U.S. 652, 673 (1925)
(Holmes, J., dissenting) (advocating that competing political perspectives “should be
given their chance and have their way”); Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J., dissenting) (defending political speech on the view that “the best
test of truth is the power of the thought to get itself accepted in the competition of the
market”).
9
See Linmark Assocs., Inc. v. Twp. of Willingboro, 431 U.S. 85, 95 (1977)
(rejecting a prohibition on commercial speech that tries to achieve “its goal by
restricting the free flow of truthful information”); Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, 425 U.S. 748, 770 (1976) (justifying commercial speech on
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however, it has made relatively little ingress into the area of
religious expression, as the subject of either the Court’s
jurisprudence11 or the scholarly literature.12 I believe that the
the premise 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 to close them”).
10
See Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 331 (7th Cir. 1985)
(arguing that the government should permit a diversity of viewpoints about
pornography and that “the government may not restrict speech on the ground that in a
free exchange truth is not yet dominant”).
11
The Court has offered a glimmer of what an extension of the justification
from truth to religious expression might look like. Justice Roberts for the Court in
Cantwell v. Connecticut provided just two sentences:
To persuade others to his own point of view, the pleader, as we know, at
times, resorts to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the people of
this nation have ordained in the light of history, that, in spite of the
probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of the citizens
of a democracy.
310 U.S. 296, 310 (1940). So, too, Justice Black wrote only brief remarks alluding to the
justification from truth in his majority opinion in Marsh v. Alabama, 326 U.S. 501
(1946), in which he rejected a company town’s efforts to preclude Jehovah’s Witnesses
from entering the town and distributing leaflets to the company workers: “To act as
good citizens they must be informed. In order to enable them to be properly informed
their information must be uncensored.” Id. at 508. For further discussion of Marsh, see
infra notes 286-294 and accompanying text.
The Supreme Court has traditionally framed the right of religious
expression in terms of whether a government statute violates a person’s right to
religious conscience or belief. See Lee v. Weisman, 505 U.S. 577, 597 (1992) (rejecting a
state-sanctioned religious exercise “in which the student was left with no alternative
but to submit”); Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872,
877 (1990) (“The free exercise of religion means, first and foremost, the right to believe
and profess whatever religious doctrine one desires.”), superseded by statute, Religious
Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488; Wallace v.
Jaffree, 472 U.S. 38, 52-53 (1985) (The “[c]ourt has unambiguously concluded that the
individual freedom of conscience protected by the First Amendment embraces the right
to select any religious faith or none at all.”); Thomas v. Review Bd. of the Ind.
Employment Sec. Div., 450 U.S. 707, 717-18 (1981) (“Where the state conditions receipt
of an important benefit upon conduct proscribed by a religious faith, or where it denies
such a benefit because of conduct mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his behavior and to violate his beliefs, a
burden upon religion exists.”); Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16
(1947) (arguing that neither the state nor the federal government “can pass laws which
aid one religion, aid all religions, or prefer one religion over another”); United States v.
Ballard 322 U.S. 78, 86 (1944) (citation omitted) (“Freedom of thought, which includes
freedom of religious belief, is basic in a society of free men. It embraces the right to
maintain theories of life and of death and of the hereafter which are rank heresy to
followers of the orthodox faiths.”); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in . . . religion, or other
matters of opinion . . . .”); Cantwell, 310 U.S. at 303 (“Freedom of conscience and
freedom to adhere to such religious organization or form of worship as the individual
may choose cannot be restricted by law.”); Watson v. Jones, 80 U.S. 679, 728 (1871) (“In
this country the full and free right to entertain any religious belief, to practice any
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DELIBERATING THE DIVINE
5
religious principle, and to teach any religious doctrine which does not violate the laws
of morality and property, and which does not infringe personal rights, is conceded to
all.”).
Law professors have also commented on the view that the Supreme Court’s
religion clauses are used to protect the right of religious belief and conscience.
Laurence Tribe explains:
Allocating religious choices to the unfettered consciences of individuals under
the free exercise clause remains, in part, a means of assuring that church and
state do not unite to create the many dangers and divisions often implicit in
such an established union. Similarly, forbidding the excessive identification
of church and state through the establishment clause remains, in part, a
means of assuring that government does not excessively intrude upon
religious liberty. Thus the Supreme Court has frequently recognized that “the
two clauses may overlap.”
TRIBE, supra note 3, at 1156-57 (quoting Abington Sch. Dist. v. Schempp, 374 U.S. 203,
222 (1963)); see also DAVID A. J. RICHARDS, TOLERATION AND THE CONSTITUTION 12833, 141-49 (1986) (arguing that the Supreme Court’s interpretation of the religion
clauses reflect a Western tradition of protecting the right to conscience); Arlin M.
Adams & Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. PA. L. REV.
1559, 1643 (1989) (“The core value of the religion clauses is liberty of conscience in
religious matters, an ideal which recurs throughout American history from the colonial
period of Roger Williams to the early national period of the Founders.”); Noah
Feldman, From Liberty to Equality: The Transformation of the Establishment Clause,
90 CAL. L. REV. 673, 676-77 (2002) (“For the Framers, the [Establishment] Clause was
understood to protect religious conscience, and so the answer was straightforward:
religion deserved special protection from alliance with government because, more than
other forms of action or belief, religion required free choice to be meaningful.” (footnote
omitted)); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77
N.Y.U. L. REV. 346, 398 (2002) (“In the time between the proposal of the Constitution
and of the Bill of Rights, the predominant, not to say exclusive, argument against
established churches was that they had the potential to violate liberty of conscience.”);
Kent Greenawalt, Common Sense About Original and Subsequent Understandings of
the Religion Clauses, 8 U. PA. J. CONST. L. 479, 492 (2006) (“Whatever may be true
about the Establishment Clause, the Free Exercise Clause seemed a natural way to
protect liberty of religious conscience.”); Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1480-99,
1511-13 (1990) (arguing that the original understanding of the free exercise clause was
based exclusively on the right of religionists to be faithful to their consciences); Jay
Alan Sekulow, James Matthew Henderson, Sr., & Kevin E. Broyles, Religious Freedom
and the First Self-Evident Truth: Equality as a Guiding Principle in Interpreting the
Religion Clauses, 4 WM. & MARY BILL RTS. J. 351, 387 (1995) (“Under the equality
understanding, the Establishment Clause protects every citizen’s right to make
voluntary choices regarding religion by forbidding the government from using its power
to join the marketplace of ideas on the side of any belief, regardless of whether it favors
or disfavors religion.”); Rodney K. Smith & Patrick A. Shea, Religion and the Press:
Keeping First Amendment Values in Balance, 2002 UTAH L. REV. 177, 202 (“The
Establishment Clause limitation protects against a particular religion or group of
religions commandeering the state in a manner that infringes on the liberty of
conscience of others” and the “free exercise limitation, in turn, protects the right to act
upon one’s religious conscience unless, in the words of James Madison, ‘the
preservation of equal liberty, and the existence of the State be manifestly
endangered.’ ”).
12
Professor William P. Marshall has offered a suggestive but underdeveloped
and at times problematic argument for applying the justification from truth to religious
expression. William P. Marshall, Truth and the Religion Clauses 43 DEPAUL L. REV.
243, 244, 255-60 (1994). In this Article, I will sometimes explicitly mention our
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justification from truth, given its heuristic power, deserves to
be applied to religious expression, and I try to offer a robust
account of what that would look like.13 In Part I, I distinguish
what I call the minimalist and deliberative approaches of the
justification from truth. The former, I argue, lacks the
insistence on deliberation over a diversity of viewpoints that
defines the latter. For this reason, I recommend the application
of the deliberative version to religious expression. I clarify in
Part II what challenges, if any, religious expression might
present for the justification from truth given that the
justification has been generally applied to secular speech. In
Part III, I urge the merits of applying the deliberative version
of the justification from truth by enlisting examples from
religious conversion.
I begin in Part IV the needful work of explaining how
the Supreme Court has provided a long line of case law that
can be conscripted to bolster my efforts to extend the
justification from truth to discourses pertaining to religion. The
Court has applied the justification from truth to political
speech and commercial speech based partly on the assumption
that politics and commerce are such important subjects that
the audience deserves access to a diversity of viewpoints and
ideas. So, too, the Court has also concluded, as I show in Part
IV, that religion is at least as important as politics and
commerce, a conclusion that has provided a path for me to
extend the justification from truth to religion. I explain in
Part V that the religion clauses, as interpreted by the Court,
forbid the state from invading the privacy necessary for
individuals to weigh competing religious perspectives, and,
accordingly, the Court has afforded the legal means by which
people may, without undue interference from the state,
deliberate about a diversity of viewpoints and ideas about
religion. In Part VI, I apply the justification from truth to a set
of test cases to demonstrate how it can be used: cases involving
proselytism, unemployment benefits, the flag salute, religious
differences; other times I will simply offer, for efficiency’s sake, my own competing
argument without referencing his. For instance, he does not differentiate between the
two versions of the justification from truth. I consider the distinction crucial and
explain why, albeit with only a passing reference to the fact that he makes no such
distinction. See infra Part I. For an example of where I explicitly address our
differences, see infra Part VI.C.1.
13
This does not mean that I necessarily seek to preempt other justifications
for religious speech. My chief aim is to describe in detail one plausible justification for
it which has been given relatively little attention.
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DELIBERATING THE DIVINE
7
fundamentalism, and the teaching of creation science. I
conclude in Part VII.
Before I begin making a case for applying the
justification from truth to religious expression, I should more
fully define the justification. I can begin by borrowing from
Professor Frederick Schauer’s definition of the justification
from truth:
Throughout the ages many diverse arguments have been employed
to attempt to justify a principle of freedom of speech. Of all these, the
predominant and most persevering has been the argument that free
speech is particularly valuable because it leads to the discovery of
truth. Open discussion, free exchange of ideas, freedom of enquiry,
and freedom to criticize, so the argument goes, are necessary
conditions for the effective functioning of the process of searching for
truth. Without this freedom we are said to be destined to stumble
blindly between truth and falsehood. With it we can identify truth
and reject falsity in any area of human enquiry.14
This account of the justification from truth is a standard one
and is relatively uncontroversial as far as the faithfulness of its
description. But there is disagreement about what qualifies as
truth and what are the expectations for free speech to help the
audience arrive at it.
This disagreement has organized itself in the Supreme
Court’s jurisprudence around two dominant approaches to the
justification from truth: the minimalist approach and the
deliberative approach. I will explain both approaches in the
next section.
I.
DELIBERATION IS AT THE CORE OF THE JUSTIFICATION
In this section, I will summarize and assess what I call
the Supreme Court’s minimalist and deliberative approaches to
secular free speech, and then I will argue in Section III that the
latter approach is more likely to help us arrive at better
conclusions about religious truth. The minimalist approach
does not assume that deliberation over competing viewpoints is
necessary or perhaps even useful for arriving at the truth. By
contrast, the deliberative approach, as its name suggests,
values such deliberation.
The history of the justification from truth in the United
States Supreme Court finds its initial form in the minimalist
approach and the topic of its consideration in political speech.
14
SCHAUER, supra note 1, at 15.
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And the minimalist approach, like other significant modes of
thought in American jurisprudence, begins for the Court with
the towering authority of Oliver Wendell Holmes, Jr.
Representative is his dissent in Gitlow v. New York.15 Gitlow
was, in the words of the Supreme Court, “a member of the Left
Wing Section of the Socialist Party, a dissenting branch or
faction of that party formed in opposition to its dominant policy
of ‘moderate Socialism.’”16 The lower court convicted him of
“advocacy of criminal anarchy,” a decision upheld by the
Supreme Court, which found that Gitlow’s speech posed a
“clear and present danger” that could be lawfully prohibited.17
Dissenting, Holmes first summarized the position of Justice
Sanford who wrote the majority opinion: “It is said that this
manifesto was more than a theory, that it was an incitement.”18
But according to Holmes, Sanford’s description was unduly
expansive because “[e]very idea is an incitement.”19 Every idea,
he announced, “offers itself for belief and if believed it is acted
on unless some other belief outweighs it or some failure of
energy stifles the movement at its birth.”20 And Holmes wrote
that the “only difference between the expression of an opinion
and an incitement in the narrower sense is the speaker’s
enthusiasm for the result. Eloquence may set fire to reason.”21
These remarks probably appear to afford great
protection for free speech, but the logic of Holmes’s opinion,
when carefully considered, presents a troubling upshot. While
Holmes felt that the subversive speech in this case “had no
chance of starting a present conflagration,” he nonetheless
asserted that “[i]f in the long run the beliefs expressed in
proletarian dictatorship are destined to be accepted by the
dominant forces of the community, the only meaning of free
speech is that they should be given their chance and have their
way.”22 Notice the breezy, if indifferent, attitude of the
statement. According to Holmes, the “only meaning of free
speech” is that people be permitted to hear a particular
perspective, not that they mull over it or compare it with other
15
16
17
18
19
20
21
22
268 U.S. 652 (1925).
Id. at 655.
Id. at 654, 671-72.
Id. at 673.
Id.
Id.
Id.
Id. at 673.
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options.23 On offer by Holmes is a formulation of the
justification from truth that does not insist on the usefulness of
deliberation and, accordingly, it also does not insist on a
diversity of viewpoints, for deliberation is the “consideration
and discussion of the reasons for and against a measure by a
number of councilors.”24 Holmes’s version of the justification
from truth is perfectly willing to ascribe political legitimacy to
a superficial conclusion derived from glossing over a set of
numbingly similar ideas and viewpoints.25
While the justification from truth, on Holmes’s account,
need not logically require deliberation, conclusions that are
drawn without the benefit of seriously weighing competing
arguments are potentially unsound because they have failed to
withstand meaningful scrutiny. The nineteenth-century
23
Gitlow, 268 U.S. at 673; see also SUNSTEIN, supra note 6, at 26 (“In all his
writings on free speech, Holmes pays little attention to the appropriate conditions
under which free trade in ideas will ensure truth, a gap that is probably attributable to
his skepticism about whether truth, as an independent value, is at issue at all.”). Some
scholars have ascribed Holmes’s experience in the Civil War to his seeming apathy or
skepticism concerning the existence of objective truths. See BOLLINGER, supra note 2,
at 162 (arguing that Holmes’s contempt for intolerant men is “in part the product of
Holmes’s experience as a soldier in the Civil War—that belief is a straight road to
killing one another”).
24
4 OXFORD ENGLISH DICTIONARY 414 (J. A. Simpson & E. S. C. Weiner eds.,
1989).
25
Some scholars have awkwardly associated Holmes with the philosophers
John Stuart Mill and John Milton in that all three are said to be dedicated to the
justification from truth. Stanley Ingber, for example, writes:
Scholars and jurists frequently have used the image of a “marketplace of
ideas” to explain and justify the first amendment freedoms of speech and
press. Although this classic image of competing ideas and robust debate dates
back to English philosophers John Milton and John Stuart Mill, Justice
Holmes first introduced the concept into American jurisprudence in his 1919
dissent to Abrams v. United States.
Ingber, supra note 3, at 2-3 (footnotes omitted). Similarly, William Marshall explains:
According to seminal case law interpreting the Speech Clause, freedom of
expression promotes truth by fostering a “marketplace of ideas” which
enables truth to ultimately prevail over falsity. The source of this theory is
traditionally thought to be a famous passage from John Milton’s work
Areopagitica. . . . The source of the truth rationale in First Amendment
doctrine in turn may be found in Justice Oliver Wendell Holmes’s classic
dissent in Abrams v. United States . . . .
Marshall, supra note 12, at 256-57 (footnotes omitted). These associations between
Holmes, on the one hand, and Milton and Mill, on the other, can be somewhat
misleading. For Milton and Mill offered a distinctly different version of the justification
from truth than the one announced by Holmes. Specifically, the former emphasized the
need for deliberation over a diversity of viewpoints whereas the latter two did not. See
infra note 27 and accompanying text (discussing Mill); see also infra Part III.B.1
(discussing Milton).
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English philosopher John Stuart Mill is helpful on this score.26
Mill offered four arguments for why a diversity of ideas and
viewpoints is essential for arriving at close, albeit provisional,
approximations of the truth:
First, if any opinion is compelled to silence, that opinion may, for
aught we can certainly know, be true. To deny this is to assume our
own infallibility. Second, though the silenced opinion be an error, it
may, and very commonly does, contain a portion of truth; and since
the general or prevailing opinion on any subject is rarely or never
the whole truth, it is only by the collision of adverse opinions that
the remainder of the truth has any chance of being supplied. Third,
even if the received opinion be not only true, but the whole truth;
unless it is suffered to be, and actually is, vigorously and earnestly
contested, it will, by most of those who receive it, be held in the
manner of a prejudice, with little comprehension or feeling of its
rational grounds. And not only this, but, fourthly, the meaning of the
doctrine itself will be in danger of being lost, or enfeebled, and
deprived of its vital effect on the character and conduct: the dogma
becoming a mere formal profession, inefficacious for good, but
cumbering the ground, and preventing the growth of any real and
heartfelt conviction, from reason or personal experience.27
In proffering these arguments, Mill does not suggest that a
diversity of views will necessarily lead to truth but that a
paucity of them will almost surely doom us to half-truths and
ignorance.
While Holmes’s minimalist approach to the justification
from truth is absent Mill’s insights, the emphasis on
deliberation over a diversity of viewpoints does find root in a
different version of the justification from truth, what I call the
deliberative approach. This approach tries to use the law to
foster and protect a diversity of viewpoints, and it expects
people to deliberate about them to arrive at better conclusions
about truth.
While he is certainly not the only person in history to
have advocated the deliberative approach, Justice Louis
Brandeis, Holmes’s good friend and frequent interlocutor, is
26
The Supreme Court justices have sometimes explicitly invoked Mill as
authority for their use of the justification from truth. See McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 357 (1995); Holder v. Hall, 512 U.S. 874, 900 (1994); Columbia
Broad. Sys. v. Democratic Nat’l Comm., 412 U.S. 94, 189 (1973) (Brennan J.,
dissenting); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 392 (1969); New York Times
Co. v. Sullivan, 376 U.S. 254, 272, 279 (1964); Poe v. Ullman, 367 U.S. 497, 514-15
(1961) (Douglas, J., dissenting); Barenblatt v. United States, 360 U.S. 109, 151 (1959)
(Black, J., dissenting); Jordan v. De George, 341 U.S. 223, 241 (1951).
27
JOHN STUART MILL, ON LIBERTY AND OTHER WRITINGS 53-54 (Stefan
Collini ed., Cambridge Univ. Press 1995) (1859).
2007]
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one of the first on the Supreme Court to do so.28 Brandeis joined
some of Holmes’s memorable First Amendment opinions and
vice versa,29 but the former advanced a decidedly different
justification from truth. Most importantly, while Holmes had
advocated a marketplace of ideas where consumers act, and
perhaps act impulsively, on their varied and subjective
preferences, Brandeis envisions a world where free speech can
theoretically enlighten civil society. The difference between
Holmes and Brandeis is most evident in the latter’s
concurrence in Whitney v. California.30 Brandeis wrote, “Those
who won our independence believed that the final end of the
state was to make men free to develop their faculties, and that
in its government the deliberative forces should prevail over
the arbitrary.”31 Implicit here is the aspiration that people will
bring to bear their deliberative faculties to adduce the truth.
By contrast, Holmes had remarked in Abrams v. United States
that “the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth
is the only ground upon which their wishes safely can be
carried out.”32 Missing in this formulation of the justification
from truth is the insistence that people deliberate about an
issue at any length.33 Read straightforwardly, the only thing
that Holmes’s position requires is that the idea “get itself
accepted in the competition of the market,” even if the idea
commends its merits through little more than cheap emotional
pleas and a busy swirl of sound bites. Furthermore, Holmes
does not define what constitutes a properly functioning market
or even that he requires the market to be functioning
28
For considerably earlier intimations of the deliberative approach in a
religious setting, see John Milton’s work discussed infra Part III.B.1.
29
E.g., Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes, J., dissenting).
30
274 U.S. 357, 372 (1927) (Brandeis & Holmes, JJ., concurring), overruled
in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).
31
Id. at 375.
32
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
33
Cass Sunstein makes the following remarks about Holmes’s account of the
justification from truth:
Truth itself is defined by reference to what emerges through “free trade in
ideas.” For Holmes, it seems to have no deeper status. The competition of the
market is the governing conception of free speech. On his view, politics itself
is a market, like any other. Holmes does not appear to place any special
premium on political discussion.
SUNSTEIN, supra note 6, at 25.
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properly.34 He thus fails to explain if the justification from
truth can, for example, reduce the volume of speech by
financially powerful groups that can drown out their
competitors’ voices, or if the state may limit a parade of
salacious gossip about celebrities’ lives in favor of more
substantial information about the countless pressing issues in
politics and social welfare.
Unlike Holmes, Brandeis justifies free speech as a way
to help people arrive not simply at any conclusion about truth,
but at a more deliberative, more informed—and hence
presumably better—conclusion. His attitude is encapsulated in
these statements: “Men feared witches and burnt women. It is
the function of speech to free men from the bondage of
irrational fears.”35 Accordingly, Brandeis writes that “no danger
flowing from speech can be deemed clear and present, unless
the incidence of the evil apprehended is so imminent that it
may befall before there is opportunity for full discussion.”36 So
too: “If there be time to expose through discussion the falsehood
and fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence.”37
The references to “full discussion” and “more speech” would
seem to suggest the importance of a diversity of viewpoints in
the search for truth whereby “the deliberative forces should
prevail over the arbitrary.”38
The landmark case of New York Times v. Sullivan39
captures the spirit of the deliberative approach. In that case,
the Times had run an advertisement declaring that peaceful
34
Sunstein writes: “In all his writings on free speech, Holmes pays little
attention to the appropriate conditions under which free trade in ideas will ensure
truth, a gap that is probably attributable to his skepticism about whether truth, as an
independent value, is at issue at all.” Id.
35
Whitney, 274 U.S. at 376. For useful discussions of the Brandeis opinion,
see generally Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The
Brandeis Opinion in Whitney v. California, 29 WM. & MARY L. REV. 653 (1988) and
JOHN RAWLS, POLITICAL LIBERALISM 351-56 (1993). Justice Frankfurter subsequently
announced a similar observation:
The history of civilization is in considerable measure the displacement of
error which once held sway as official truth by beliefs which in turn have
yielded to other truths. Therefore the liberty of man to search for truth ought
not to be fettered, no matter what orthodoxies he may challenge.
Dennis v. United States, 341 U.S. 494, 550 (1951).
36
Whitney, 274 U.S. at 377.
37
Id.
38
Id. at 375.
39
376 U.S. 254 (1964).
2007]
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efforts at civil rights reform in Montgomery, Alabama and
elsewhere were being met “by an unprecedented wave of terror
by those who would deny and negate [the Constitution].”40 The
advertisement did not mention who specifically was responsible
for such terror, but one L. B. Sullivan, a city official responsible
for the Montgomery police, argued that he was falsely depicted
and sued the Times for libel. An Alabama jury awarded what
was then an exorbitant sum for libel in the amount of
$500,000.41 The Alabama Supreme Court affirmed.42 The United
States Supreme Court reversed the Alabama Supreme Court in
one of its most important First Amendment decisions. Justice
Brennan for the Court held that a public official like Sullivan
was subject to an “actual malice” standard, whereby he could
recover damages for libel only if he could show that the
defendant had made a false statement regarding the public
official acting within his official capacity and that the
statement had been made “with knowledge that it was false or
with reckless disregard of whether it was false or not.”43 Merely
publicizing some factual inaccuracy was thus insufficient to
establish liability, and even doing so “negligently” (that is,
below the standard of responsibility for a reasonable person)
was not enough.44 While the Court thus made public officials
remarkably vulnerable in the realm of public discourse, it did
so in order to ensure that “public issues should be uninhibited,
robust, and wide-open, and that [public discourse] may well
include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.”45 The diversity of
40
41
42
Id. at 256.
Id.
N.Y. Times Co. v. Sullivan, 144 So. 2d 25, 52 (1962), rev’d, 376 U.S. 254
(1964).
43
44
Sullivan, 376 U.S. at 280.
Id. at 262. The Court clarified this aspect in St. Amant v. Thompson:
[R]eckless conduct is not measured by whether a reasonably prudent man
would have published, or would have investigated before publishing. There
must be sufficient evidence to permit the conclusion that the defendant in
fact entertained serious doubts as to the truth of his publication. Publishing
with such doubts shows reckless disregard for truth or falsity and
demonstrates actual malice.
390 U.S. 727, 731 (1968).
45
Sullivan, 376 U.S. at 270; see also William J. Brennan, Jr., The Supreme
Court and the Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1,
18-20 (1965) (relating the argument that the First Amendment right of free speech is
grounded in the people’s right of access to competing perspectives for purposes of
deliberation about self-government).
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viewpoints and ideas that the Court expected to be generated
by the protectiveness of the New York Times rule would
presumably help the audience arrive at better conclusions
about the truth.
A similar logic animates Red Lion Broadcasting Co. v.
46
FCC. In Red Lion, a radio station had personally attacked a
writer, calling him a liar and a communist.47 The writer sought
a right of reply under the personal attack rule of the FCC’s
Fairness Doctrine.48 In turn, the radio station argued that the
right of reply violated the First Amendment because it
impermissibly coerced the station to give air time to those
whom the station had refused.49 Justice White for the Court
upheld the personal attack rule because it was necessary for
people in a democracy to hear different sides of an issue. He
wrote that the
people as a whole retain their interest in free speech by radio and
their collective right to have the medium function consistently with
the ends and purposes of the First Amendment. It is the right of the
viewers and listeners, not the right of the broadcasters, which is
paramount. . . . It is the purpose of the First Amendment to preserve
an uninhibited marketplace of ideas in which truth will ultimately
46
395 U.S. 367 (1969). Owen Fiss has commented on the connection between
Sullivan and Red Lion:
Sullivan sought to enhance the capacity of the press to report widely and
fully on matters of public importance by shielding the press from a form of
state action—libel judgments—that might otherwise discourage such
reporting. The Fairness Doctrine [as construed by Red Lion] also sought to
broaden the coverage of the press, to make certain that the all-powerful
broadcast medium covered issues of public importance and gave listeners or
viewers all sides of the story. In upholding that doctrine and the power of the
FCC to regulate the press for the purpose of broadening public debate, Red
Lion affirmed the very same values proclaimed by Sullivan.
FISS, supra note 6, at 58.
47
Red Lion, 395 U.S. at 371-72.
48
The rule states:
When, during the presentation of views on a controversial issue of public
importance, an attack is made upon the honesty, character, integrity or like
personal qualities of an identified person or group, the licensee shall, within a
reasonable time and in no event later than 1 week after the attack, transmit
to the person or group attacked (1) notification of the date, time and
identification of the broadcast; (2) a script or tape (or an accurate summary if
a script or tape is not available) of the attack; and (3) an offer of a reasonable
opportunity to respond over the licensee’s facilities.
Id. at 373-74 (quoting 47 C.F.R. § 73.1920(a) (1996)).
49
Id. at 386.
2007]
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prevail, rather than to countenance monopolization of that market,
whether it be by the Government itself or a private licensee.50
The dedication to maintaining a marketplace of ideas helps to
justify the Court’s familiar prohibition against viewpoint
discrimination and, to a lesser degree, content discrimination.
To quote the Court, “above all else, the First Amendment
means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content.”51 The Court would therefore prohibit the government
from permitting speakers to criticize the Republican Party but
not the Democratic party, for this would amount to
discrimination against a person’s political viewpoint. In fact,
the Court would also probably prohibit the government from
punishing any discussion of politics because the government
would be punishing people for the content of their speech. As
the Court explains, “Any restriction on expressive activity
because of its content would completely undercut the ‘profound
national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.’”52
But the justification from truth in its deliberative form
is not exclusive to political speech. It also applies to commercial
speech. Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc.53 established the Court’s recognition
that commercial speech deserves First Amendment protection.
The case relies on the principle that consumers should have
access to diverse information that will help them arrive at
better conclusions about truth. Virginia’s legislature had
passed a statute that restricted pharmacists from advertising
or publishing, inter alia, the prices of the drugs that they sold.54
A group of consumers challenged the statute as violating their
First Amendment right to receive information about drug
prices, especially given that drug prices in Virginia, “for both
prescription and nonprescription items, strikingly vary from
outlet to outlet even within the same locality.”55 Justice
Blackmun for the Court struck down the statute as
unconstitutional. He offered the following justification:
50
51
52
53
54
55
Id. at 390.
Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972).
Id. at 96 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964)).
425 U.S. 748 (1976).
See VA. CODE ANN. § 54-524.35 (1974).
Va. State Bd. of Pharmacy, 425 U.S. at 754.
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As to the particular consumer’s interest in the free flow of
commercial information, that interest may be as keen, if not keener
by far, than his interest in the day’s most urgent political debate. . . .
Those whom the suppression of prescription drug price information
hits the hardest are the poor, the sick, and particularly the aged. A
disproportionate amount of their income tends to be spent on
prescription drugs; yet they are the least able to learn, by shopping
from pharmacist to pharmacist, where their scarce dollars are best
spent.56
To this pressing interest by drug consumers, Blackmun added
a more general reason:
Advertising, however tasteless and excessive it sometimes may
seem, is nonetheless dissemination of information as to who is
producing and selling what product, for what reason, and at what
price. So long as we preserve a predominantly free enterprise
economy, the allocation of our resources in large measure will be
made through numerous private economic decisions. It is a matter of
public interest that those decisions, in the aggregate, be intelligent
and well informed. To this end, the free flow of commercial
information is indispensable. And if it is indispensable to the proper
allocation of resources in a free enterprise system, it is also
indispensable to the formation of intelligent opinions as to how that
system ought to be regulated or altered.57
Of course, the state may sometimes regulate commercial
speech to ensure the safety of the consumers, but Blackmun
explained that in this instance the statute was “highly
paternalistic.”58 Here, he concluded, we should assume that the
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 to close them.”59 Phrased more
directly in terms of the deliberative approach, Blackmun’s
justification for protecting commercial speech presupposes that
consumers are likely to make better decisions if they have
access to competing advertisements.
Blackmun’s opinion, like the opinions of the other
justices that I examined, turns on cases in which the First
Amendment’s right of free speech is front and center. But the
justification in its deliberative form is present elsewhere, too,
and a most conspicuous place is the Court’s college and
56
57
58
59
Id. at 763.
Id. at 765 (citations omitted).
Id. at 770.
Id.
2007]
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university affirmative action cases. While the Supreme Court
in these cases focused mostly on the Fourteenth Amendment’s
Equal Protection Clause rather than the First Amendment’s
right of free speech, what deserves attention is that the Court’s
support of affirmative action in this context is premised on
creating conditions that will be favorable for the exchange and
deliberation of diverse ideas and viewpoints.
This thesis was first offered in Justice Powell’s plurality
opinion in Regents of University of California v. Bakke.60 In that
case, the University of California, Davis Medical School
reserved a number of admissions seats for those candidates
who belonged to certain racial groups.61 Justice Powell rejected
this policy as violating the Fourteenth Amendment’s Equal
Protection Clause.62 He subjected the quota policy to strict
scrutiny because it contained a suspect classification in race.63
Under strict scrutiny, the medical school was required to show
that there existed a compelling government interest for its
policy and that the policy’s means were necessary.64 After
rejecting three of the four justifications presented by the
medical school as failing to demonstrate a compelling
government interest for the racial quota, Powell accepted as a
compelling government interest the university’s goal of
furthering a diversity of viewpoints on its campus. He wrote:
The fourth goal asserted by petitioner is the attainment of a diverse
student body. This clearly is a constitutionally permissible goal for
an institution of higher education. Academic freedom, though not a
specifically enumerated constitutional right, long has been viewed as
a special concern of the First Amendment. The freedom of a
university to make its own judgments as to education includes the
selection of its student body.65
Powell elaborated on this point:
Thus, in arguing that its universities must be accorded the right to
select those students who will contribute the most to the “robust
exchange of ideas,” petitioner invokes a countervailing constitutional
60
438 U.S. 265, 312 (1978) (Powell, J., concurring).
Id. at 289.
62
Id. at 309-10 (Powell, J., concurring).
63
“We have held that in ‘order to justify the use of a suspect classification, a
State must show that its purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is “necessary . . . to the
accomplishment” of its purpose or the safeguarding of its interest.’ ” Id. at 305 (quoting
In re Griffiths, 413 U.S. 717, 721-22 (1973) (footnotes omitted)).
64
Id.
65
Id. at 311-12.
61
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interest, that of the First Amendment. In this light, petitioner must
be viewed as seeking to achieve a goal that is of paramount
importance in the fulfillment of its mission.66
To explain how this exchange of ideas might occur, Justice
Powell quoted from an article by President William Bowen of
Princeton University:
[A] great deal of learning occurs informally. It occurs through
interactions among students of both sexes; of different races,
religions, and backgrounds; who come from cities and rural areas,
from various states and countries; who have a wide variety of
interests, talents, and perspectives; and who are able, directly or
indirectly, to learn from their differences and to stimulate one
another to reexamine even their most deeply held assumptions about
themselves and their world. As a wise graduate of ours observed in
commenting on this aspect of the educational process, “People do not
learn very much when they are surrounded only by the likes of
themselves.”67
One finds in this passage a reiteration of the justification from
truth. For the diversity of viewpoints helps students “to learn
from their differences and to stimulate one another to
reexamine even their most deeply held assumptions about
themselves and their world.”68
In the subsequent cases of Grutter v. Bollinger69 and
Gratz v. Bollinger,70 the Court reaffirmed Justice Powell’s signal
66
Id. at 313.
Id. at 312 (quoting William Bowen, Admissions and the Relevance of Race,
Princeton Alumni Wkly., Sept. 26, 1977, at 9); see also Keyishian v. Bd. of Regents of
the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (“The classroom is peculiarly
the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through
wide exposure to that robust exchange of ideas which discovers truth ‘out of a
multitude of tongues, [rather] than through any kind of authoritative selection.’ ”). For
a similar treatment, see the Court’s opinion in Sweezy v. New Hampshire:
67
The essentiality of freedom in the community of American universities is
almost self-evident. No one should underestimate the vital role in a
democracy that is played by those who guide and train our youth. To impose
any strait jacket upon the intellectual leaders in our colleges and universities
would imperil the future of our Nation. No field of education is so thoroughly
comprehended by man that new discoveries cannot yet be made. Particularly
is that true in the social sciences, where few, if any, principles are accepted
as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and
distrust. Teachers and students must always remain free to inquire, to study
and to evaluate, to gain new maturity and understanding; otherwise our
civilization will stagnate and die.
354 U.S. 234, 250 (1957).
68
Bakke, 438 U.S. at 313 n.48 (Powell, J., concurring).
69
Grutter v. Bollinger, 539 U.S. 306, 325 (2003).
70
Gratz v. Bollinger, 539 U.S. 244, 271 (2003).
2007]
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appreciation for the value of promoting a diversity of
viewpoints in colleges and universities. Grutter involved a
challenge to the admissions policy of the University of
Michigan Law School, which took race into consideration, and
Gratz involved a similar challenge to the admissions policy of
Michigan’s College of Letters, Science, and the Arts, which also
accepted racial minority status as a positive factor, albeit, to
the Court’s chagrin, much more heavily than did the law
school.71 While the Court upheld the law school’s policy and
rejected the college’s policy, it endorsed in both cases Powell’s
aspiration to create a diversity of viewpoints in colleges and
universities. In Gratz, the Court rejected the admissions policy
of the College of Letters, Science, and the Arts because, in the
Court’s view, instead of trying to promote a diversity of
viewpoints, it was an obvious attempt at social engineering by
giving disproportionate advantages to members of certain
racial groups.72 In Grutter, the Court stated that it “endorses
Justice Powell’s view that student body diversity is a
compelling state interest in the context of university
admissions.”73 In fact, there was a sustained concurrence by
Justice O’Connor that built upon Powell’s reasoning. She
wrote:
[T]he Law School defines its critical mass concept by reference to the
substantial, important, and laudable educational benefits that
diversity is designed to produce, including cross-racial understanding
and the breaking down of racial stereotypes. The Law School’s claim
is further bolstered by numerous expert studies and reports showing
that such diversity promotes learning outcomes and better prepares
students for an increasingly diverse work force, for society, and for
the legal profession. Major American businesses have made clear
that the skills needed in today’s increasingly global marketplace can
only be developed through exposure to widely diverse people,
71
72
Id. at 253-54; Grutter, 539 U.S. at 314-17.
Chief Justice Rehnquist, writing for the majority, explained:
Even if student C’s “extraordinary artistic talent” rivaled that of Monet or
Picasso, the applicant would receive, at most, five points under the LSA’s
system. At the same time, every single underrepresented minority applicant,
including students A and B, would automatically receive 20 points for
submitting an application. . . . Instead of considering how the differing
backgrounds, experiences, and characteristics of students A, B, and C might
benefit the University, admissions counselors reviewing LSA applications
would simply award both A and B 20 points because their applications
indicate that they are African-American, and student C would receive up to 5
points for his “extraordinary talent.”
Gratz, 539 U.S. at 273 (citation and footnote omitted).
73
Grutter, 539 U.S. at 307.
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cultures, ideas, and viewpoints. High-ranking retired officers and
civilian military leaders assert that a highly qualified, racially
diverse officer corps is essential to national security. Moreover,
because universities, and in particular, law schools, represent the
training ground for a large number of the Nation’s leaders, the path
to leadership must be visibly open to talented and qualified
individuals of every race and ethnicity.74
As the passage suggests, Grutter, along with most of the other
cases that I have examined, stands for the proposition that a
diversity of viewpoints and ideas is more likely than their
paucity to lead to truth. The cases suggest, then, that the
deliberative approach is more likely than the minimalist
approach to help the audience arrive at better conclusions
about the truth.
But all of the cases that I have examined thus far
concerned secular speech. The question remains: Is the
deliberative approach a better alternative than the minimalist
approach in helping people to make more justifiable
conclusions about religious truth? I make the case that it is in
Parts II and III.
II.
COMPARING SECULAR AND RELIGIOUS SPEECH
Before I directly discuss whether a diversity of
viewpoints and ideas concerning religion can lead to more
justifiable conclusions about religious truth, I will first offer
what I think are easier examples outside of religion. Using
these easier examples, I will explain later what is potentially
different about religion, and thus, what adjustments, if any,
should be made in applying to religion the deliberative version
of the justification from truth.
The work of political scientist Scott Page is a good place
to begin to think about how a diversity of viewpoints and ideas
can help people to arrive at better conclusions about some
truth.75 Page argues that we should imagine different
viewpoints and ideas as “tools” by which we can arrive at better
approximations about the truth.76 He suggests that we are
more likely to arrive at accurate conclusions if we possess a
74
Id. at 308 (O’Connor, J., concurring).
See generally SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF
DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES (2007).
76
Page calls his argument the “diversity conjecture” and holds that “diversity
leads to better outcomes.” Id. at 4.
75
2007]
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21
diversity of mental tools with which we can examine an issue.77
Among the tools are “diverse perspectives” that are “ways of
representing situations and problems.”78 “Informally speaking,
perspectives represent solutions to a problem. When we say
that people have diverse perspectives, we mean that they see or
envision the set of possibilities differently.”79
As an example, Page uses directions to the venerable
Zingerman’s Delicatessen in Ann Arbor, Michigan:
Isabelle, an Ann Arbor resident, might represent a location relative
to her home—“To get to Zingerman’s, go down State Street and take
a left in front of the big Catholic Church.” Her brother, Nicky, might
represent those same locations using a mental map of city streets—
“Zingerman’s sits on the corner of Kingsley and Detroit.” Given their
perspectives, Nicky would prove far more capable of telling a visitor
how to get from Zingerman’s to the Brown Jug, another Ann Arbor
landmark.80
We can embellish this example. Elise, a graphic artist, might
believe that Zingerman’s is a little difficult to spot without a
good illustration and so may draw the orange façade of the
building that houses it. Or, Samson, who is blind, might tell
you that when his roommate drives him there, Samson knows
that he is getting close to Zingerman’s because about five
hundred feet from the deli, the smooth asphalt suddenly
changes to a bumpy brick road with a couple of small potholes.
These examples are not meant to imply that one perspective is
better than another, but to suggest that someone looking for
directions to Zingerman’s is likely to find a diversity of
perspectives to be more useful than just one.81 And notice how
one perspective builds on another: Isabelle’s perspective would
get you started on State Street and past the big Catholic
Church; then Nicky’s would help you to locate Kingsley Street;
then as you keep going on Kingsley, you notice that Samson
was right and that the asphalt has changed to an uneven brick
road; and then you notice near Detroit Street the only orange
brick building. And there you are at Zingerman’s.
77
Id. at 9-11.
Id. at 7.
79
Id.
80
Id.
81
This is probably why Google and Yahoo print out driving directions that
contain both maps and written directions. http://maps.google.com/maps and
http://maps.yahoo.com/index.php (both last visited Feb. 23, 2007).
78
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But different perspectives can help us with more than
driving directions. They can help us with something as
formalistic as math, too. Professor Page offers this example
from an IQ test82:
In each sequence, replace the X with the unique number that makes
the sequence logically consistent.
Sequence 1:
1
4
9
16
X
36
Sequence 2:
1
2
3
5
X
13
Sequence 3:
1
2
6
X
1,806
The first sequence is a sequence of squares.83 “The square of 1
equals 1, the square of 2 equals 4, and so on. The missing
number is 25.”84 But the perspective in Sequence 1—the
sequence of squares—cannot help us with Sequence 2. That
requires a different perspective:
The perspective that makes sense of this sequence is to recognize
each number as the difference of the two that follow it. The first
number equals the third number minus the second (1 = 3 – 2), the
second number equals the fourth minus the third (2 = 5 – 3), and so
on. It follows that the fifth should be such that it minus the fourth
number, 5, equals the third number, 3. Therefore, the missing
number is 8.85
Sequence 3 is much harder than Sequences 1 and 2: How is it
possible to go from the small numbers of 1, 2, and 6 and then
jump suddenly to the large number of 1,806? Page responds,
“We can find the answer by combining the perspectives
developed to solve the first two sequences.”86 To wit:
First, apply the perspective used in the second sequence: Look at the
differences between numbers. The difference between the first two
numbers equals 1 (2 – 1 = 1). The difference between the second two
numbers is 4 (6 – 2 = 4). This suggests a pattern. That pattern is the
perspective used to solve the first sequence: squares. Each number
differs from the number after it by an amount equal to its square 1 =
2 – 12, and 2 = 6 – 22. This idea seems cute, but it doesn’t seem as
though it will get us to 1,806. And yet it does. Using this rule, the
next number would be 42, 6 = 42 – 62, and the number after 42
would be (guess what) 1,806: 42 = 1,806 – 422 (422 = 1,764).
82
83
84
85
86
PAGE, supra note 75, at 42.
Id.
Id.
Id.
Id. at 43.
2007]
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23
Combining our two perspectives, we can make sense of the third
sequence.87
There are more examples of times when a diversity of
perspectives helped people to better discern the truth. During
World War II, Britain vexed over how to crack the Nazi’s secret
code by which, among other things, German submarines were
communicating with each other to track and destroy Ally
supply ships.88 Realizing that a team of expert cryptographers
was inadequate to solve the code, the British government
sought to exploit what Page has called the diversity of
perspectives.89 It assembled a motley group in Bletchley Park:
Many of the people brought to Bletchley Park—Brits, Americans,
Poles, Aussies—had training we might think appropriate for code
breaking. These included mathematicians . . . , engineers, and
cryptographers. But other people working in secrecy in the James
Bond-like trappings of Room 40 and Hut 8 had been trained as
language experts, moral philosophers, classicists, ancient historians,
and even crossword puzzle experts.90
The end result was that the diverse lot twice cracked the Nazi
code.91
In private industry, there is the example of
InnoCentive.92 In 2001, Alpheus Bingham, the vice president of
Eli Lilly, created a website called InnoCentive where large
pharmaceutical companies could post problems for anyone, not
just scientists who specialize in drugs, to solve for a monetary
reward.93 “Solvers included dentists from the Far East and
physicists from the Midwest.”94 By 2005, “more than eighty
thousand solvers had registered[,]”95 hailing “from more than
170 countries and span[ning] the scientific disciplines.”96 These
nonexperts solved nearly one-third of the problems,97 an
impressive number considering that their services were
typically sought by “a company like Proctor and Gamble, which
87
88
89
90
91
92
93
94
95
96
97
Id.
Id. at 3.
Id.
Id.
Id. at 4.
Id. at 1.
Id.
Id.
Id. at 2.
Id.
Id.
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has nine thousand people as its R&D staff and spend nearly
two billion dollars a year on research and development.”98
Similarly, the discovery of the structure of DNA was
achieved by an unlikely team whose members held perspectives
that differed sharply from each other’s and from those of others
deemed experts in the field. Francis Crick and James Watson
would eventually win the Nobel Prize for their discovery, but
their intellectual backgrounds would not have suggested they
would.99 For Crick’s training did not focus solely on biology but
also on physics and chemistry; perhaps because of his diverse
interests, he had never earned a Ph.D.100 Watson did have a
Ph.D., but it was in zoology with an emphasis on the study of
birds.101 These unorthodox backgrounds were not debilitating to
their research and in fact “[h]istorians of science assign credit
to . . . their diverse skills.”102
Such stories of diverse perspectives are telling, but are
the lessons gleaned from them useful for my topic of religious
truth? I believe they are, but I should now explain their
limitations and thus begin to outline how a diversity of
viewpoints and ideas should be properly understood in the
context of religious truth.
All of the examples from Page that I have used involve
people trying to solve puzzles which admit of answers that are
formally logical, as in the mathematical sequence and the
cracking of the Nazi code, or they are empirically testable, as in
the InnoCentive website and the directions to Zingerman’s. But
questions about a truth concerning religion are not generally
amenable to formal logic or empiricism. This is so for at least
two reasons. First, religion deals with questions of moral value,
whereas all of the examples that I have borrowed from Page
deal with questions of fact.103
98
99
100
101
102
103
PAGE, supra note 75, at 2.
Id. at 29.
Id.
Id.
Id.
The zoologist Stephen Jay Gould explains:
I do not see how science and religion could be unified, or even synthesized,
under any common scheme of explanation or analysis; but I also do not
understand why the two enterprises should experience any conflict. Science
tries to document the factual character of the natural world, and to develop
theories that coordinate and explain these facts. Religion, on the other hand,
operates in the equally important, but utterly different, realm of human
purposes, meanings, and values—subjects that the factual domain of science
might illuminate, but can never resolve. Similarly, while scientists must
2007]
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Second, religion tends to rest on faith in the existence of
a Higher Being or Beings whose very definition resists and
transcends the properties of formal logic and empirical
reality.104 So Charles Darwin wrote six months after his Origin
of Species105 and after the death of his beloved daughter:
There seems to me too much misery in the world . . . . On the other
hand, I cannot anyhow be contented to view this wonderful universe,
and especially the nature of man, and to conclude that everything is
the result of brute force. I am inclined to look at everything as
resulting from designed laws, with the details, whether good or bad,
left to the working out of what we may call chance. Not that this
notion at all satisfies me. I feel most deeply that the whole subject is
operate with ethical principles, some specific to their practice, the validity of
these principles can never be inferred from the factual discoveries of science.
STEPHEN JAY GOULD, ROCKS OF AGES: SCIENCE AND RELIGION IN THE FULLNESS OF LIFE
4-5 (1999). On the other end of the spectrum from Gould is the self-styled agnostic
Keith Ward, an ordained minister of the Church of England as well as a theology
professor at Oxford. Yet the latter’s remarks are largely consistent with the former’s:
Modern science begins with the ejection of purpose, value and significance
from the universe. This is one main reason why the “scientific worldview”
fails to deal with all aspects of reality. The “disenchantment of nature,” the
stripping away of all personal properties from the mechanisms of nature, was
important to the birth of modern science.
KEITH WARD, PASCAL’S FIRE: SCIENTIFIC FAITH AND RELIGIOUS UNDERSTANDING 116
(2006).
104
Here, it is worth considering the following examples in which religious
founders have discovered God:
The founders of all the great religious traditions are said to have experienced
“knowing” in the form of revelations which guided or confirmed them in their
mission. Moses talked with Jehovah, Christ heard the voice of God at his
baptism, Mohammed was visited by the Angel Gabriel. Even the Buddha,
whose enlightenment is reported as arising from his own Buddha nature
rather than from heavenly grace, is described in the early Pali text, the
Ariyapariyesana Sutta, as having overcome his reluctance to teach others the
way to enlightenment—teachings which he considered lay beyond their
understanding—only in response to the repeated appeals from Brahma, one
of the supreme gods, who came down from heaven for this very purpose.
Other, lesser figures, have also claimed knowledge conveyed through divine
revelation, sometimes with consequences that have changed the whole course
of human history as in the case of Joan of Arc’s voices and St. Paul’s
experiences on the road to Damascus.
DAVID FONTANA, PSYCHOLOGY, RELIGION, AND SPIRITUALITY 21 (2003). Keith Ward also
observes that religions “can differ greatly from one another, but a central, if not
absolutely universal, theme is the existence of a supernatural realm in relation to
which some form of human fulfillment can be found.” KEITH WARD, THE CASE FOR
RELIGION 21 (2004).
105
CHARLES DARWIN, THE ORIGIN OF SPECIES (Julian Huxley ed., Signet
Classics 2003) (1859).
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too profound for the human intellect. A dog might as well speculate
on the mind of Newton.106
Thus, Darwin acknowledged the existence of a higher being
beyond comprehension by the human mind.
True, scientific theories like evolution do challenge
biblical accounts of human origins and do possess empirically
testable properties.107 Yet such theories, even if accurate,
cannot logically begin to refute the existence of a Higher Being
who has made such evolution possible.108 Moreover, some
106
Quoted in GOULD, supra note 103, at 35-36. So, too, the theologian Keith
Ward also explains:
What scientists deal with is the measurable, predictable and regular
operation of objects, as such objects exercise their natural powers in
interaction with other objects . . . . What science cannot do is prove that no
other sorts of reality exist, or prove that physical objects only ever act in the
predictable and regular ways with which science deals.
There are, then, very real limits to science. This is not a matter of things
science cannot yet do but might one day do. It is a matter of the limits science
imposes upon itself, in confining itself to public observation, repeatability,
law-like regularity and measurability. One extreme form of the scientific
worldview is the belief that this is the only sort of knowledge there is and the
only sort of reality there is. But that could not be a scientific statement, since
it is meta-scientific, a statement about what science is and deals with.
Perhaps there are other sorts of reality than the public and physical, and
perhaps even the public and physical contains supra-scientific elements. Most
religious views do take that alternative view. In doing so, they do not conflict
with science. They conflict with reductive materialism, with the belief that
nothing exists except matter.
WARD, supra note 103, at 127.
107
See infra Part VI.C.2.
108
Pope John Paul II, for instance, believed that evolution and Catholicism
were conceptually compatible. He wrote: “[M]y predecessor [Pope] Pius XII had already
stated [in 1950] that there was no opposition between evolution and the doctrine of the
faith about man and his vocation.” Quoted in GOULD, supra note 103, at 80-81. John
Paul also declared:
The Bible itself speaks to us of the origin of the universe and its make-up, not
in order to provide us with a scientific treatise but in order to state the
correct relationships of man with God and with the universe. Scared
Scripture wishes simply to declare that the world was created by God, and in
order to reach this truth it expresses itself in the terms of the cosmology in
use at the time of the writer. The Sacred Book likewise wishes to tell men
that the world was not created as the seat of the gods, as was taught by other
cosmogonies and cosmologies, but was rather created for the service of man
and the glory of God. Any other teaching about the origin and make-up of the
universe is alien to the intentions of the Bible, which does not wish to teach
how the heavens were made but how one goes to heaven.
Pope John Paul II, Address to the Pontifical Academy of Science (Oct. 1981) quoted in
Michael Ruse, Introduction to The Creationist Challenge, in BUT IS IT SCIENCE? THE
PHILOSOPHICAL QUESTION IN THE CREATION/EVOLUTION CONTROVERSY 225, 225
(Michael Ruse ed., 1996) [hereinafter BUT IS IT SCIENCE?]. And, perhaps surprisingly,
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religionists may refuse altogether to entertain the theory of
evolution because they are adamantly confident that the
epistemic resources of faith alone can answer questions about
the meaning of human existence.109
Religious truth, then, unlike the truths that were
sought by Watson and Crick or the Bletchley Park code
breakers, does not necessarily lend itself to the possibility of
universal assent.110 While everyone knows that a given number
is X in a mathematical sequence or that we have arrived at the
orange brick building that is Zingerman’s, we have
fundamental differences about whether we have found God or
Charles Darwin also believed that evolution did not logically dislodge the existence of a
god. The philosopher of science Michael Ruse, an authority on the evolution debate, has
remarked:
Given that religion provided such a barrier to evolutionism for everyone else,
why should it have been no barrier to Darwin? Remember, this was a young
man who [during his college years] had intended to be a parson, no less . . . .
[U]ltimately Darwin did not see religion and evolution in conflict! Rather, at
the time of becoming an evolutionist and indeed right through the period
until after the writing of the Origin [of the Species], Darwin was quite happy
to hold simultaneously to his scientific beliefs and to some rather lukewarm
kind of belief in a creator.
MICHAEL RUSE, DARWINISM DEFENDED: A GUIDE TO THE EVOLUTION CONTROVERSIES
26-27 (1982) [hereinafter RUSE, DARWINISM DEFENDED]. More strongly, Ruse writes:
“Can a Darwinian be a Christian? Absolutely! Is it always easy for a Darwinian to be a
Christian? No, but whoever said that the worthwhile things in life are easy?” MICHAEL
RUSE, CAN A DARWINIAN BE A CHRISTIAN? THE RELATIONSHIP BETWEEN SCIENCE AND
RELIGION 217 (2001). The psychologist Gordon Allport similarly believes that religion
and the empirical demands of psychology need not be mutually exclusive:
As every reader knows, modern empirical psychology initially separated itself
sharply from religion. “Psychology without a soul” became its badge of
distinction and of pride.
....
At the same time there is inherent absurdity in supposing that psychology
and religion, both dealing with the outward reaching of man’s mind, must be
permanently and hopelessly at odds. As different as are science and art in
their axioms and methods they have learned to co-operate in a thousand
ways—in the production of finer dwellings, music, clothing, design. Why
should not science and religion, likewise differing in axioms and method, yet
co-operate in the production of an improved human character without which
all other human gains are tragic loss?
GORDON W. ALLPORT, THE INDIVIDUAL AND HIS RELIGION: A PSYCHOLOGICAL
INTERPRETATION v-vi (1950).
109
See infra Part VI.C.2 (discussing “scientific creationism” and its logical
defects). Stephen Jay Gould observes that such rejection of evolution constitutes “a
marginal belief among all major Western religions these days, and a doctrine only well
developed within the distinctively American context of Protestant church pluralism.”
GOULD, supra note 103, at 130.
110
The term “universal” however will be qualified later. See infra notes 112125 and accompanying notes.
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gods or His or Her or Its or Their Message or whether there is
any message at all to be found.111 When we conceive a diversity
of viewpoints and ideas in the context of religion, it is therefore
important to realize that we should not realistically expect
some collective “a-ha!” moment when all parties converge on an
indisputable answer.
Given this condition, the justification from truth would
seem an inappropriate fit for religious expression, at least if we
accept the characterization of the justification by some
scholars. For the justification from truth, according to these
scholars, must logically presuppose that there are “objective
truths” which can theoretically admit of uniform agreement.
Consider Professor Stanley Ingber’s account of the justification
from truth, which he subsequently used to criticize the
justification’s entire enterprise:
In order to be discoverable, however, truth must be an objective
rather than a subjective, chosen concept. Consequently,
socioeconomic status, experience, psychological propensities, and
societal roles should not influence an individual’s concept of truth. If
such factors do influence a listener’s perception of truth, the
inevitable differences in these perspectives caused by the vastly
differing experiences among individuals make resolution of
disagreement through simple discussion highly unlikely. And if the
possibility of rational discourse and discovery is negated by these
entrenched and irreconcilable perceptions of truth, the dominant
“truth” discovered by the marketplace can result only from the
triumph of power, rather than the triumph of reason.112
These needlessly austere expectations for the justification from
truth merit a response.
Ingber assumes that the justification from truth
promises to render truths devoid of “socioeconomic status,
111
The psychologist David Fontana has stated, “Beliefs and practices vary so
much between the major traditions that any attempt at defining religion can never be
wholly successful.” FONTANA, supra note 104, at 6. He continues, “Individual religions
not only differ considerably from each other in their understanding both of God or the
gods and of the soul . . . but also in a number of other important ways.” Id. at 7. Indeed,
for Fontana, the differences among religions “are so extreme that we may again
question whether all the traditions concerned should come under the one category of
religion . . . .” Id. at 8. See generally KEITH WARD, GOD: A GUIDE FOR THE PERPLEXED
(2002) (discussing the differences in religious beliefs among various religions
throughout Western history); OUR RELIGIONS (Arvind Sharma ed., 1993) (discussing
the differences among Hinduism, Buddhism, Confucianism, Taoism, Judaism,
Christianity, and Islam); HUSTON SMITH, THE WORLD’S RELIGIONS: OUR GREAT
WISDOM TRADITIONS (1991) (discussing the differences in religious meaning among
Hinduism, Buddhism, Confucianism, Taoism, Islam, Judaism, Christianity, and the
“primal religions”).
112
Ingber, supra note 3, at 15 (footnotes omitted).
2007]
DELIBERATING THE DIVINE
29
experience, psychological propensities, and societal roles.” But
this expectation, taken straightforwardly, is completely
implausible on its face. For there is no such truth. Even in
science, a field where one might anticipate only the cold
objectivity of facts, we encounter resistance to a conception of
truth that presumes the unassailability of its epistemology.
Indeed, as Thomas Kuhn has remarked in his famous work on
the history of science, the ostensibly objective truths that are
the products of science are necessarily influenced by the
contingencies
of
culture,
experience,
and
personal
idiosyncrasies.113 Accordingly, Kuhn is reluctant to ascribe
“objective truth” to any particular scientific discovery. He offers
the example of how Galileo’s description of motion differed from
that of the Aristotelian physicist:
Since remote antiquity most people have seen one or another heavy
body swinging back and forth on a string or chain until it finally
comes to rest. To the Aristotelians, who believed that a heavy body is
moved by its own nature from a higher position to a state of natural
rest at a lower one, the swinging body was simply falling with
difficulty. Constrained by the chain, it could achieve rest at its low
point only after a tortuous motion and a considerable time. Galileo,
on the other hand, looking at the swinging body, saw a pendulum, a
body that almost succeeded in repeating the same motion over and
over again ad infinitum. And having seen that much, Galileo
observed other properties of the pendulum as well and constructed
many of the most significant and original parts of his new dynamics
around them. From the properties of the pendulum, for example,
Galileo derived his only full and sound arguments for the
independence of weight and rate of fall, as well as for the
relationship between vertical height and terminal velocity of motions
down inclined planes. All these natural phenomena he saw
differently from the way they had been seen before.114
In explaining Galileo’s “discovery,” Kuhn points to those very
contingencies in perspective that Ingber finds so troubling:
Why did that shift of vision occur? Through Galileo’s individual
genius, of course. But note that genius does not here manifest itself
in more accurate or objective observation of the swinging body.
Descriptively, the Aristotelian perception is just as accurate. When
Galileo reported that the pendulum’s period was independent of
amplitude for amplitudes as great as 90°, his view of the pendulum
led him to see far more regularity than we can now discover there.
Rather, what seems to have been involved was the exploitation by
113
THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (3d ed.
114
Id. at 118-19 (footnote omitted).
1996).
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genius of perceptual possibilities made available by a medieval
paradigm shift. Galileo was not raised completely as an Aristotelian.
On the contrary, he was trained to analyze motions in terms of the
impetus theory, a late medieval paradigm which held that the
continuing motion of a heavy body is due to an internal power
implanted in it by the projector that initiated its motion.115
Galileo’s experience and training, as influenced by the
contemporary views of his society, caused him to adopt a new
scientific theory that replaced what had long been understood
to be truth.
Thus, even in science, a field that we conventionally
associate with objective truths, there are disagreements
engendered by what Ingber identified as “experience,
psychological propensities, and societal roles.” The result is one
that is disheartening for those who long for “objective truths”
that are invulnerable to debate. Kuhn explains:
To the extent, as significant as it is incomplete, that two scientific
schools disagree about what is a problem and what a solution, they
will inevitably talk through each other when debating the relative
merits of their respective paradigms. In the partially circular
arguments that regularly result, each paradigm will be shown to
satisfy more or less the criteria that it dictates for itself and to fall
short of a few of those dictated by its opponent.116
What Kuhn suggests in the passage is that any given scientific
discipline has already predetermined what sorts of “truth” it
seeks to find simply by defining the tests and methods that will
be employed. With this in mind, I need to revisit this statement
by Professor Ingber: “And if the possibility of rational discourse
and discovery is negated by these entrenched and
irreconcilable perceptions of truth, the dominant ‘truth’
discovered by the marketplace can result only from the
triumph of power, rather than the triumph of reason.”117 The
logic of scientific discovery described by Kuhn suggests that
“reason” does not (and cannot) exist outside the particular
scientific theory or paradigm which constitutes it, and that
there is no universal, overarching scientific theory that can
settle their disputes as a matter of principle.118
115
116
117
118
Id. at 119 (footnote omitted).
Id. at 109-10.
Ingber, supra note 3, at 15 (footnote omitted).
Kuhn explains:
2007]
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But surely we should not therefore condemn science as
ineffectual in helping us to arrive at better conclusions about
the truth. That is, we can sensibly argue that the justification
from truth should underwrite the legal right to scientific
discourse. Similarly, we should not condemn non-scientific
speakers in the marketplace of ideas because they also lack an
overarching objective truth waiting to be discovered. Recall the
Court’s application of the justification from truth to race-based
affirmative action in college admissions. Justice Powell, writing
a plurality opinion in Bakke, quoted from President William
Bowen of Princeton that the purpose of a college education is
not necessarily to find some ultimate truth but to be exposed to
the truths of others, which can challenge and enrich one’s
understanding.119 There is no expectation that students will
learn “objective” truths from engaging those who are different
from them. What is hoped is that students will “learn from
their differences” and “stimulate one another to reexamine
even their most deeply held assumptions about themselves and
their world.” It is quite unlikely that the students will, after
meeting or living with those who are different, arrive at the
same conclusions about cultural truths or arrive at conclusions
that others will necessarily regard as admirable. The
affirmative action policy, according to the Court, is meant
simply to provide for conditions where students are encouraged
to acquire information about others’ worldviews and to
deliberate about them, especially in relation to their own.
When paradigms enter, as they must, into a debate about paradigm choice,
their role is necessarily circular. Each group uses its own paradigm to argue
in that paradigm’s defense.
The resulting circularity does not, of course, make the arguments wrong or
even ineffectual. The man who premises a paradigm when arguing in its
defense can nonetheless provide a clear exhibit of what scientific practice will
be like for those who adopt the new view of nature. That exhibit can be
immensely persuasive, often compellingly so. Yet, whatever its force, the
status of the circular argument is only that of persuasion. It cannot be made
logically or even probabilistically compelling for those who refuse to step into
the circle. The premises and values shared by the two parties to a debate over
paradigms are not sufficiently extensive for that. As in political revolutions,
so in paradigm choice—there is no standard higher than the assent of the
relevant community.
KUHN, supra note 113, at 94.
119
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (Powell, J.,
concurring) (quoting William Bowen, Admissions and the Relevance of Race,
PRINCETON ALUMNI WKLY. Sept. 26, 1977, at 9).
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A similar understanding of the justification from truth
informs other cases that I have discussed. In Whitney, Justice
Brandeis protected the public’s right to speech that was
subversive of the state, but he did not make it contingent on
the public being able to arrive at the objectively correct
conclusion
that
such
speech
was
dangerous
and
unpersuasive.120 Instead, he protected it because he believed
that deliberation by the public was a valuable end in itself. He
stated, “Those who won our independence believed that the
final end of the state was to make men free to develop their
faculties, and that in its government the deliberative forces
should prevail over the arbitrary.”121 Justice Brennan in New
York Times also did not stipulate that the public would
necessarily arrive at the objectively correct conclusion about
libel or politics or racism.122 All that he wanted was for the
public to deliberate seriously over a diversity of competing
viewpoints: “[P]ublic issues should be uninhibited, robust, and
wide-open, and . . . [public discourse] may well include
vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials.”123 Similarly, in Virginia
State Board of Pharmacy, Justice Blackmun could not possibly
be sure that the consumers would arrive at some unequivocal
truth regarding whether brand name drugs were better than
cheaper generic substitutes.124 But, again, the point was not to
ensure that the public finds some objective truth but that they
make informed decisions borne of deliberation over an array of
competing advertisements. So Justice Blackmun explained, “It
is a matter of public interest that those decisions, in the
aggregate, be intelligent and well informed. To this end, the
free flow of commercial information is indispensable.”125 All that
the justification can be expected to do under such
circumstances is to generate a diversity of viewpoints and ideas
and to afford the audience the time and resources to deliberate
about them in a meaningful fashion. “Truths” about politics,
economic theory, and affirmative action are inherently
120
See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,
concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444.
121
Id.
122
See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
123
Id. at 270; see also William J. Brennan, The Supreme Court and the
Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1, 15 (1965).
124
See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S.
748, 765 (1976).
125
Id.
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DELIBERATING THE DIVINE
33
contestable, but this conclusion should not cause us to cease
trying to argue about these things, as if, since there are no
unequivocal truths, it is useless to even deliberate about them.
Similarly for religion, we should explore competing and
alternative arguments even though the possibility of arriving
at a steady parade of objectively agreeable answers is quite
unlikely.
III.
THE MERITS OF A DIVERSITY OF VIEWPOINTS AND
IDEAS CONCERNING RELIGION
In urging the merits of a diversity of viewpoints and
ideas concerning religion, I want to sketch my arguments, for
reasons that I explain below, from the categories of religious
conversion and biblical exegesis.
A.
Skepticism and the Supernatural
The subject of conversion brings to the fore the merits of
how a diversity of viewpoints and ideas can help people to
arrive at better conclusions about the truth. For conversion is
the radical adoption of some new religious truth and the
complete abandonment of some other conception of truth.126 Is
such conversion more justified if based on deliberating over a
126
Lewis Rambo defines conversion as
change from the absence of a faith system . . . to another, or from one
orientation to another within a single faith system. It will mean a change of
one’s personal orientation toward life, from the haphazards of superstition to
the providence of a deity; from a reliance on rote and ritual to a deeper
conviction of God’s presence; from belief in a threatening, punitive,
judgmental deity to one that is loving, supportive, and desirous of the
maximum good. [Conversion also means] a spiritual transformation of life,
from seeing evil or illusion in everything connected with “this” world to
seeing all creation as a manifestation of God’s power and beneficence; from
denial of the self in this life in order to gain a holy thereafter; from seeking
personal gratification to a determination that the rule of God is what fulfills
human beings; from a life geared to one’s personal welfare above all else to a
concern for shared and equal justice for all. [Conversion means too] a radical
shifting of gears that can take the spiritually lackadaisical to a new level of
intensive concern, commitment, and involvement.
LEWIS R. RAMBO, UNDERSTANDING RELIGIOUS CONVERSION 2 (1993); see also Richard
Travisano, Alternation and Conversion as Qualitatively Different Transformations, in
SOCIAL PSYCHOLOGY THROUGH SYMBOLIC INTERACTION 594, 594 (Gregory P. Stone &
Harvey A. Farberman eds., 1970) (defining conversion as “a radical reorganization of
identity, meaning, life”); Max Heirch, Change of Heart: A Test of Some Widely Held
Theories about Religious Conversion, 83 AM. J. SOC. 653, 673-74 (Nov. 1977) (defining
conversion as “the process of changing a sense of root reality” and “a conscious shift in
one’s sense of grounding”).
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diversity of viewpoints and ideas or is it more justified if based
on dismissing those options? I want to argue for the former. In
Part III.A.1, I examine the case of a young Japanese student
and in Part III.A.2, that of the great Protestant leader Martin
Luther, as examples of radical religious conversions in which
the subject did not deliberate over a diversity of viewpoints.
Without denying the validity of the divine intervention as
recounted in these two conversion experiences, I suggest that a
deliberative approach might have provided for them more
justified conclusions.
1. From Divine Emperor to Holy Father
The most famous instance of conversion in the Bible is
that of Saul of Tarsus.127 Saul began as a relentless persecutor
of Christians but later converted to Christianity. In the Bible,
we are told that Saul never had to search for religious truth; it
came searching for him. Here follows the relevant biblical
passage:
Meanwhile, Saul was still breathing out murderous threats against
the Lord’s disciples. He went to the high priest and asked him for
letters to the synagogues in Damascus, so that if he found any there
who belonged to the Way, whether men or women, he might take
them as prisoners to Jerusalem. As he neared Damascus on his
journey, suddenly a light from heaven flashed around him. He fell to
the ground and heard a voice say to him, “Saul, Saul, why do you
persecute me?”
“Who are you, Lord?” Saul asked.
“I am Jesus, whom you are persecuting,” he replied. “Now get up
and go into the city, and you will be told what you must do.”128
When a light from heaven flashes around you and you
find yourself having a literal conversation with God, you
probably know that you are being treated to something special
by way of religious truth.129 So it is no surprise that Saul
converted instantly to Christianity.130 Later, Saul would
127
The Acts 9 (New International Version).
Id. at 1-6.
129
This type of experience, where a person suddenly converts to a faith
because of some divine intervention, is sometimes called a “Damascus Road”
conversion. John Lofland & Norman Skonovd, Conversion Motifs, 20 J. SCI. STUD.
RELIGION 373, 377 (1981).
130
The Bible tells us:
128
Saul spent several days with the disciples in Damascus. At once he began to
preach in the synagogues that Jesus is the Son of God. All those who heard
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consummate the conversion process by rejecting his identity as
Saul of Tarsus (the enemy of Christ) and becoming Paul the
Apostle (the servant of Christ).131 John Lofland and Norman
Skonovd call this “mystical” conversion and, in their view, it
“has in a sense functioned as the ideal of what conversion
should be in the Western world.”132
Yet ideal and practice are not the same thing: If you are
like me—and I suspect that you probably are—you have not
been blessed with dazzling heavenly lights and you have not
found yourself having a conversation with God, where God
talks back in coherent full sentences, gives traveling
instructions, and tells you that he will get back to you later.133
By saying this, I do not mean to offer myself as validation for
the snide skepticism that has figured in what one prominent
law professor has rebuked as the “culture of disbelief.”134 My
statement is instead meant to suggest that our faiths are often
mediated by books, sermons, culture, conversations (with other
human beings, not God), and other ordinary earthly
experiences. Therefore, unlike Paul, we will probably never be
absolutely sure that we are in possession of some immaculate
divine truth. This is why I believe that deliberation over
diverse viewpoints and ideas is crucial, or at least very useful,
for helping people to ascertain whether their religious beliefs
are rooted in truth or whether they are principally the products
of their culture, their parents, their psychological conditions, or
some other non-religious source.
Here, it is worth considering Mill’s observation about
the provisional nature of beliefs. Many claims, Mill declares,
have been subject to revision and rejection, and “other ages,
countries, sects, churches, classes, and parties have thought,
him were astonished and asked, “Isn’t he the man who raised havoc in
Jerusalem among those who call on this name? And hasn’t he come here to
take them as prisoners to the chief priests?” Yet Saul grew more and more
powerful and baffled the Jews living in Damascus by proving that Jesus is
the Christ.
The Acts 9:19-22 (New International Version) (footnotes omitted).
131
RAMBO, supra note 126, at 145.
132
Lofland & Skonovd, supra note 129, at 377; see also RAMBO, supra note
126, at 145 (“Many scholars consider Paul’s conversion to be the paradigm of the
sudden conversion in Christianity.”).
133
Lewis Rambo writes after an extensive study of conversion that “[f]or most
people, conversion is not so dramatic or intense [as for Saul].” RAMBO, supra note 126,
at 145.
134
STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND
POLITICS TRIVIALIZE RELIGIOUS DEVOTION 3 (1993).
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and even now think, the exact reverse” of what Mill’s
nineteenth century Englishmen accepted as the truth.135 Mill
continues that “it never troubles [the ostensibly infallible] that
mere accident has decided which of these numerous worlds is
the object of his reliance, and that the same causes which make
him a Churchman in London, would have made him a Buddhist
or a Confucian in Pekin [sic].”136 According to this view, the
claim of infallibility cannot be sustained given that much of our
knowledge is the product of historical and cultural contingency.
This is not to suggest that all answers are necessarily equally
bad (or good), but that no one should consider personal views to
be presumptively entitled to a claim of infallibility.
Consider this example. There are no identifying names
and no source is cited as reference in the passage that follows,
but I think the example will suffice for my purposes. Walter
Farrell, a Catholic priest, relates the story of a non-Christian
Japanese man who came to realize soon after World War II
that his belief in the divinity of the Japanese Emperor was
false and that Christianity was the only religious truth:
In a recent issue of one of our national magazines there is an
interesting account of a young Japanese student’s experiences
during World War II. He was in his second year at Tokyo University
when war broke out and “swept along on the surging wave of
patriotism, (he) enlisted in the Submarine Corps of the Japanese
Imperial Navy.” . . .
“At this time,” the young man writes, “I believed with all my heart in
the divinity of the Emperor. To die for him was the supreme glory of
the Japanese fighting man. To sacrifice one’s life in the Imperial
service was undoubted assurance of an eternal reward.”137
But the young man’s chance to die for the Emperor never
arrived. Japan surrendered to the United States, and the
young man surrendered to Christianity:
A short time after we stood and listened to the Emperor declare over
the radio in his own voice that he was not divine. This denial of his
heavenly origin and attributes was almost more than I could bear.
Lost in my thoughts, I wandered through the debris. My most
frightening nightmares were nothing compared with the crushing
loneliness and fear that I felt in my heart.
135
MILL, supra note 27, at 21.
Id.
137
Walter Farrell, Introduction to VINCENT V. HERR, RELIGIOUS PSYCHOLOGY
13-14 (1966).
136
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I don’t know how long I wandered aimlessly through the streets. My
first moment of awareness came when I heard the laughter of a
group of children who were leaving the remains of a bombed-out
building. The knowledge that anyone could laugh happily in such
circumstances piqued my curiosity. After much hesitation, I
approached the ruined building and entered.
The first words I heard were, “Jesus Christ, true God and true man,
loved us before we came to be, and died for each one of us that we
may save our souls.”
At the sight of Christ on the cross, my empty heart was filled and I
was overwhelmed by what I now know to be the power of grace. In
that moment of discovery, I felt the reality of Christ and His love.138
The account here broadly parallels Paul’s conversion on the
Damascus Road in that the Japanese student’s experience was
also rather instantaneous and, hence, suggestive of the
miraculous in its revelations.
But there are differences, too. Whereas we are told that
Paul was able to receive his religious truth through the
unmediated voice of God and accompanied by a portentous
spectacle of heavenly lights, the young Japanese man’s
acquisition of truth might have been less straightforward. After
all, the latter never heard the voice of God or saw heavenly
lights. All that was offered to him was the laughter of children,
another human being’s declaration that Christ was the Lord,
and some kind of artistic representation of Jesus on the cross.
None of these things, without considerable embellishment, is
divine or supernatural.139 Therefore, how did the young man
know that his sudden turn to Christianity was not a reaction to
non-religious stimuli? As Lewis Rambo has suggested in his
extensive study of conversion, motives for conversion “are not
simple and single.”140 Instead, he explains:
Context is the integration of both the superstructure and the
infrastructure of conversion, and it includes social, cultural,
religious, and personal dimensions. Contextual factors shape
avenues of communication, the range of religious options available,
and people’s mobility, flexibility, resources, and opportunities. These
factors have a direct impact on who converts and how conversion
138
Id. at 14.
While a concept of religion need not require that a person experience
something supernatural, the concept would seem to presuppose the existence of the
supernatural at the core of any religion. See WARD, supra note 104, at 21 (“Religions
can differ greatly from one another, but a central, if not absolutely universal, theme is
the existence of a supernatural realm in relation to which some form of human
fulfillment can be found.”).
140
RAMBO, supra note 126, at 140.
139
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happens. People can often be induced, encouraged, prevented, or
forced to either accept or reject conversion on the basis of factors
external to the individual.141
Let us examine these different factors, or to employ Professor
Page’s terminology from Part II, perspectives, in the context of
the Japanese student’s conversion.142 Is it possible that
stunning political changes, rather than Jesus, may have caused
the young man to believe that Christianity was the truth?
There is at least a plausible case to be made. First, the young
man’s conversion experience differs from that of Paul’s because
the former never experienced anything like the supernatural
intervention that caused the latter’s conversion. True, the
catastrophe of war is no prosaic event, but it is not
supernatural like heavenly lights and the voice of God. And
then there is the matter of the Japanese student’s horrific
realization that his Emperor was merely a political prop meant
to reinforce an ideology of patriotism. The young man saw
around him further evidence of Japan’s failures in the random
debris and bombed-out buildings, testaments to American
domination. Emperor worship had been literally discredited by
a country whose emblematic religion is Christianity. It was an
apt situation for Professor Rambo’s observation that “[d]uring a
severe crisis, the deficiencies of a culture become obvious to
many people, thus stimulating interest in new alternatives.”143
And specifically, “the perceived strength of a colonial power is a
crucial variable.”144 These circumstances raise questions about
the young man’s conclusion that Christianity is the religious
truth: Was it influenced unduly by the literal collapse of the
Japanese nation and the perceived dominance of the United
States? We do not know for sure, but it would seem desirable
for the Japanese convert to have considered these other factors
so that he may have arrived at a more accurate conclusion
about his new found truth, just as it is desirable in the
interests of finding religious truth that he have had access to a
greater diversity of viewpoints before he accepted the belief
that the Japanese Emperor was God incarnate.145
141
Id. at 20-21.
Rambo divides the factors into those that derive from “macrocontext” or
“microcontext.” Id. at 20-22. For me, the categories seem too interdependent and
porous, and I thus avoid introducing them.
143
Id. at 41.
144
Id.
145
One thing that comes to my mind with regard to the Japanese student’s
conversion is religion’s power of consolation, especially after traumatic events like war.
142
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DELIBERATING THE DIVINE
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There are other perspectives concerning religion that
are external to religion itself but which can potentially help a
person to assess the legitimacy of her prospective religious
beliefs. For example, did the young man consider the
perspective that his family, not his epiphany, is principally
responsible for his religious disposition?146 The founder of
psychoanalysis, Sigmund Freud, posits in his The Future of an
Illusion that those individuals inclined toward religions like
Christianity and Emperor-worship are less interested in the
religion per se than in a desire for a strong father figure who
can lay to rest the individual’s relentless anxiety about the
uncertainty of life.147 Freud begins his argument in the
following manner.148 He first describes man’s perception of
nature as the antithesis of order and safety as represented by
civilization.149 For nature in Freud’s view symbolizes a world
where death is inevitable and the promise of an afterlife is
altogether uncertain; it is also a world ruled by forms of
suffering that are absent moral meaning and distributed
arbitrarily.150 In their attempt to comprehend these powerful
and mysterious forces, people seek the “humanization of
The philosopher of science Richard Dawkins argues that this power causes many
people to believe illogically that God in fact exists. He writes:
It is time to face up to the important role that God plays in consoling us; and
the humanitarian challenge, if he does not exist, to put something in his
place. Many people who concede that God probably doesn’t exist, and that he
is not necessary for morality, still come back with what they often regard as a
trump card: the alleged psychological or emotional need for a god.
....
The first thing to say in response to this is something that should need no
saying. Religion’s power to console doesn’t make it true. Even if we make a
huge concession; even if it were conclusively demonstrated that belief in
God’s existence is completely essential to human psychological and emotional
well-being; even if all atheists were despairing neurotics driven to suicide by
relentless cosmic angst—none of this would contribute the tiniest jot or tittle
of evidence that religious belief is true. It might be evidence in favour of the
desirability of convincing yourself that God exists, even if he doesn’t.
RICHARD DAWKINS, THE GOD DELUSION 352 (2006).
146
The Yale psychologist Joel Allison has suggested that “sudden and
dramatic conversion” within a male divinity student might be attributable to the
student’s desire to substitute a weak father for a divine one that can offer firm
judgment and guidance. Joel Allison, Religious Conversion: Regression and Progression
in an Adolescent Experience, 8 J. SCI. STUD. RELIGION 23, 24, 28, 30, 32 (1969).
147
SIGMUND FREUD, THE FUTURE OF AN ILLUSION (James Strachey ed., W.D.
Robson-Scott trans., Anchor Books 1964).
148
Id. at 22.
149
Id.
150
Id. at 20-21.
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nature.”151 As helpless children, Freud argues, people identify
their fathers as the embodiment of nature in its scariest forms;
at the same time, the father comes to represent a protection
against the unknown.152 This same anthropomorphism was
evident in a person’s understanding of God. Freud elaborates
this view:
In the function [of protection] the mother is soon replaced by the
stronger father, who retains that position for the rest of childhood.
But the child’s attitude to its father is colored by a peculiar
ambivalence. The father himself constitutes a danger for the child,
perhaps because of its earlier relation to its mother. Thus it fears
him no less than it longs for him and admires him. The indications of
this ambivalence in the attitude to the father are deeply imprinted
in every religion . . . . When the growing individual finds that he is
destined to remain a child forever, that he can never do without
protection against strange superior powers, he lends those powers
the features of belonging to the figure of his father; he creates for
himself the gods whom he dreads, whom he seeks to propitiate, and
whom he nevertheless entrusts with his own protection. Thus his
longing for a father is a motive identical with his need for protection
against the consequences of his human weakness. The defense
against childish helplessness is what lends its characteristic features
to the adult’s reaction to the helplessness which he has to
151
152
FREUD, supra note 147, at 22.
Freud explained:
Impersonal forces and destinies cannot be approached; they remain eternally
remote. But if the elements have passions that rage as they do in our own
souls, if death itself is not something spontaneous but the violent act of an
evil Will, if everywhere in nature there are Beings around us of a kind that
we know in our own society, then we can breathe freely, can feel at home in
the uncanny and can deal by psychical means with our senseless anxiety. We
are still defenseless, perhaps, but we are no longer helplessly paralyzed; we
can at least react. Perhaps, indeed, we are not even defenseless. We can
apply the same methods against these violent supermen outside that we
employ in our own society; we can try to adjure them, to appease them, to
bribe them, and, by so influencing them, we may rob them of a part of their
power. A replacement like this of natural science by psychology not only
provides immediate relief, but also points the way to a further mastering of
the situation.
For this situation is nothing new. It has an infantile prototype, of which it is
in fact only the continuation. For once before one has found oneself in a
similar state of helplessness: as a small child, in relation to one’s parents.
One had reason to fear them, and especially one’s father; and yet one was
sure of his protection against the dangers one knew. Thus it was natural to
assimilate the two situations . . . . [A] man makes the forces of nature not
simply into persons with whom he can associate as he would with his
equals—that would not do justice to the overpowering impression which
those forces make on him—but he gives them the character of a father.
Id. at 24.
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acknowledge—a reaction which is precisely the formation of
religion . . . .153
....
As we already know, the terrifying impression of helplessness in
childhood aroused the need for protection—for protection through
love—which was provided by the father; and the recognition that
this helplessness lasts throughout life made it necessary to cling to
the existence of a father, but this time a more powerful one. Thus the
benevolent rule of a divine Providence allays our fear of the dangers
of life; the establishment of a moral world-order ensures the
fulfillment of the demands of justice, which have so often remained
unfulfilled in human civilization; and the prolongation of earthly
existence in a future life provides the local and temporal framework
in which these wish-fulfillments shall take place. Answers to the
riddles that tempt the curiosity of man, such as how the universe
began or what the relation is between body and mind, are developed
in conformity with the underlying assumptions of this system. It is
an enormous relief to the individual psyche if the conflicts of its
childhood arising from the father complex—conflicts which it has
never wholly overcome—are removed from it and brought to a
solution which is universally accepted.154
In this way, God serves as a means to resolve an individual’s
most intimate familial crises.
Perhaps it is unrealistic to expect the young Japanese
man in our example to have read Freud. But it would seem
useful if the young man had considered something like the
Freudian perspective, especially given the former’s unswerving
dedication to the supreme patriarchal figure of his Japanese
Emperor-God and then his equally unswerving and stunningly
abrupt dedication to another supreme patriarchal figure, the
Christian Holy Father. And if we may add perspectives, as
Professor Page does in his examples involving mathematical
sequences, is it possible that the perspective derived from the
trauma of war compounded the perspective derived from one’s
desire for an omnipotent father figure? Freud, after all,
describes an existence that, without the psychological
consolations of an invented divine father, would lead many to
trudge along in lives that failed to offer redemptive meaning
for their endless sufferings. According to the Freudian account,
the Japanese Emperor Father gave the young man a purpose
for and meaning to his military sacrifice during the severe
uncertainties of war, while the Christian Holy Father supplied
153
154
Id. at 35.
Id. at 47-48.
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a purpose for and meaning to the devastation and terror that
he had experienced at the hands of the Americans.
The absolute obedience that the young man exercised
toward these two divinely powerful patriarchal figures would
seem to recall the intriguing remarks of Freud’s fellow
psychoanalyst Erich Fromm. Whereas Freud’s Future of an
Illusion did not deal explicitly with political issues, Fromm’s
Psychoanalysis and Religion does.155 Fromm invokes a political
reference to the Fuhrer-worshipping fascism of World War II
Germany, an example that should call to mind the Emperorworshipping fascism that organized the nation of the young
Japanese man. Fromm explains that, like fascism,
“authoritarian religions” require that the individual surrender
power to some “transcending man.”156 In surrendering, a person
relinquishes his independence and integrity as an individual
but acquires a sense of being protected by some supernatural
power of which he has, in a sense, become a part.157
Authoritarian religion is thus not unlike authoritarian political
regimes such as the one commanded by the fascist Emperor to
whom our Japanese student had initially pledged his utter
obedience: “Here the Fuhrer or the beloved ‘Father of His
People’ or the State or the Race or the Socialist Fatherland
becomes the object of worship; the life of the individual
becomes insignificant and man’s worth consists in the very
denial of his worth and strength.”158
By saying this, Fromm does not mean in any way to
condemn Christianity,159 but means rather to shed light on a
particular kind of psychological disposition. Given the young
Japanese student’s swift shift in obsession from one divine
155
See generally ERICH FROMM, PSYCHOANALYSIS AND RELIGION (Yale Univ.
Press 1950).
156
Id. at 35.
157
Id.
158
Id. at 36.
159
Unlike Freud, Fromm believes that religion could have ameliorative moral
effects on both the individual and society. For example, Fromm praises the ethos of
early Christianity:
That early Christianity is humanistic and not authoritarian is evident from
the spirit and text of all Jesus’ teachings. Jesus’ precept that “the kingdom of
God is within you” is the simple and clear expression of nonauthoritarian
thinking. But only a few hundred years later, after Christianity had ceased to
be the religion of the poor and humble peasants, artisans, and slaves . . . and
had become the religion of those ruling the Roman Empire, the authoritarian
trend in Christianity became dominant.
Id. at 48.
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DELIBERATING THE DIVINE
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father figure to another, it would have been useful for him, in
the interests of truth, if the young man had deliberated about
Freud’s and Fromm’s psychological perspectives, as there is no
indication in the quoted passage that he did.160
2. From Repressive Father to Holy Father
Even the conversion experiences of the most famous of
religious figures can be described in psychoanalytic terms in a
way that questions whether they have found religious truth.
Erik Erikson’s classic study of Martin Luther is a good
example.161 Luther would eventually become the founder of
Lutheran Protestantism, but as a young man he had resigned
himself to the insistent expectations of his coal miner father,
Hans, who longed for his talented son to gain entrance into the
profitable and respectable world of lawyers and their
professional class.162 But something would change all that. One
night, so the official story goes, a “bolt of lightning struck the
ground near him, perhaps threw him to the ground, and caused
him to be seized by a severe, some say convulsive, state of
terror.”163 Luther felt as if he was “completely walled in by the
painful fear of a sudden death” and before he knew it, “he had
called out, ‘Help me, St. Anne . . . . I want to become a monk.’”164
And so he did: “On his return . . . he told his friends that he felt
committed to enter a monastery. He did not inform his
father.”165
Luther’s rejection of his father’s authority was not quite
complete, however, for the young man continued to live in
dread of his father’s power and authority. Hans was a
160
In making these suggestions, I do not mean to suggest that religious beliefs
necessarily harbor some psychological malady. Instead, I am inclined to agree with the
conclusions of psychologist Gordon Allport:
Many personalities attain a religious view of life without suffering arrested
development and without self-deception. Indeed it is by virtue of their
religious outlook upon life—expanding as experience expands—that they are
able to build and maintain a mature and well-integrated edifice of
personality. The conclusions they reach and the sentiments they hold are
various, as unique as is personality itself.
ALLPORT, supra note 108, at viii.
161
See ERIK H. ERIKSON, YOUNG MAN LUTHER: A STUDY IN PSYCHOANALYSIS
AND HISTORY (Norton 1958).
162
Id. at 50, 56.
163
Id. at 91.
164
Id. at 91-92.
165
Id. at 92.
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vindictive and harsh father who routinely threatened and
bullied his son Martin. Worse, Hans rationalized his abuse as
the moral righteousness of an upright judge of character.166
After a lifetime of intimidation, Martin believed that he could
not resist his father without emasculating him; on the other
hand, Martin did not believe that he could obey his father
without emasculating himself.167 He was stuck in a terrible
paradox.168
Erikson proposes that Martin was able to resolve this
dilemma by turning to what he perceived as a higher father—a
Holy Father—to whom the young man had to submit as a
matter of authority. The evidence on offer begins with the
recognition that Martin’s conversion, like that of the Japanese
student, was impelled by a set of nonsupernatural events, not
the divine intervention that defined Paul’s experience on the
Damascus Road. First, Christ himself had spoken to Paul and
others had witnessed it.169 But Martin never had any witnesses
and he never claimed to have seen or heard anything
supernatural.170 Professor Erikson writes,
We must say, therefore, that while Paul’s experience must remain in
the twilight of biblical psychology, Martin can claim for his
conversion only ordinary psychology attributes, except for his
professed conviction that it was God who had directed an otherwise
ordinary thunderstorm straight toward him.171
Notwithstanding these pedestrian renderings of
Luther’s religious experience, the storm and the lightning, from
a psychoanalytic perspective, were useful symbolic resources to
resolve the problems with his father:
There remains one motive which God and Martin shared at this
time: the need for God to match Hans, within Martin, so that Martin
would be able to disobey Hans and shift the whole matter of
obedience and disavowal to a higher, and historically significant,
plane. It was necessary that an experience occur which would
convincingly qualify as being both exterior and superior, so that
166
ERIKSON, supra note 161, at 92.
Id. at 67.
168
Id.
169
Id. at 93.
170
Id. at 92.
171
Id. at 94. Erikson qualifies that he does not mean to reduce Martin’s beliefs
to mere psychology: “We are not in the least emphasizing the purely psychological
character of the matter in order to belittle it: Martin’s limited claims, coupled with a
conviction which he carried to the bitter end, show him to be an honest member of a
different era.” Id.
167
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either Hans would feel compelled to let his son go (and that,
remember, he never could and never would do) or that the son would
be able to forswear the father and fatherhood. For the final vow
would imply both that Martin was another Father’s servant, and
that he would never become the father of Hans’ grandsons.
Ordination would bestow on the son the ceremonial functions of a
spiritual father, a guardian of souls and a guide to eternity, and
relegate the natural father to a merely physical and legal status.172
Again, as in my discussion of the Japanese student, I cannot
say with certainty that Luther’s religious conversion is without
justification. My aim is rather to invite consideration of an
alternative perspective in psychoanalysis in order to enrich our
deliberative possibilities for arriving at the truth of some
religious belief.173
In the next section, I sketch examples of people who
deliberated about different religious perspectives in order to
arrive at a more justifiable conclusion about truth.
B.
Deliberation Over a Diversity of Viewpoints and Ideas
I want to sketch in this section two perspectives on the
uses of deliberation for purposes of discovering religious truth.
One is by the Protestant philosopher John Milton in his
Areopagitica, a pamphlet he wrote in 1644 to challenge
Parliament’s censorship against certain religious books. What
makes Milton’s argument intriguing for my purposes is that it
is derived from a perspective that is itself religious. On the
other hand, the second figure to whom I turn is Thomas
Jefferson, a man whose skepticism about religion could never
be confused with Milton’s religious zeal. I discuss Jefferson’s
letter to his nephew in which the former president outlines his
arguments for the sort of deliberation that I am commending.
By offering the arguments of the faithful Milton and the
skeptical Jefferson, it is my hope that the reader will gain a
fuller sense of the merits of deliberation for the discovery of
truths pertaining to religion.
172
Id. at 94-95. For a similar conclusion regarding the conversion experiences
of some contemporary theology students, see Allison, supra note 146.
173
I do not, therefore, agree with Freud’s adamant declaration that it would
be an illusion “to suppose that what science cannot give us we can get elsewhere.”
FREUD, supra note 147, at 92. I am inclined to sympathize with Erikson’s more modest
understanding of the relationship between psychoanalysis and religion. ERIKSON,
supra note 161, at 21 (arguing that psychoanalysis and religion pursue different
objectives and that neither one need not logically take priority over the other).
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1. A Perspective of the Faithful: The Case of
John Milton
I began this Article with a discussion of Justices Holmes
and Brandeis as the forerunners of the justification from truth
within the American judicial context. Yet while both justices
restricted their discussion to secular speech, the most famous
argument in Western culture for what contemporaries style the
justification from truth was offered by the deeply religious
John Milton, who sought to employ the justification to support
religious, not secular, speech.174 Furthermore, unlike Holmes
and Brandeis, Milton’s version of the justification from truth is
underwritten almost entirely by religious arguments.175
Professor Vincent Blasi has therefore wisely cautioned
contemporaries against conscripting Areopagitica, Milton’s
famous defense of religious speech, as a straightforward
defense of expression generally.176 Consider what is surely the
most widely cited quotation from Areopagitica. Milton declares
with an optimism seemingly bordering on the naïve: “Let
[Truth] and Falsehood grapple; who ever knew Truth put to the
worse, in a free and open encounter.”177 As anyone today knows,
however, there is no guarantee that truth will win in a battle
with falsehood. Therefore, to make serviceable Milton’s oftquoted line, it is useful to consult the context. Milton is
confident that truth will prevail over falsehood because God is
on the side of truth. Milton’s declaration is less a prediction
about psychology than a faith in divine providence. He “knows”
that truth will prevail because God wills that it should.178
174
JOHN MILTON, AREOPAGITICA 6 (Cambridge Univ. Press 1918) (1644).
See Vincent Blasi, Milton’s Areopagitica and the Modern First
Amendment, Ralph Gregory Elliot First Amendment Lecture (Mar. 1995), available at
http://www.law.yale.edu/documents/pdf/Milton.pdf.
176
Id.; see also Francis Canavan, John Milton and Freedom of Expression, 7
INTERPRETATION 50 (1978).
177
MILTON, supra note 174, at 58.
178
Milton writes: “For who knows not that Truth is strong next to the
Almighty; she needs no policies, no stratagems, nor licencings to make her
victorious . . . .” Id. at 59. He also elaborates:
175
For when God shakes a Kingdome with strong and healthful commotions to a
general reforming, ‘tis not untrue that many sectaries and false teachers are
then busiest in seducing; but yet more true it is, that God then raises to his
own work men of rare abilities, and more then common industry not only to
look back and revise what hath bin taught heretofore, but to gain further and
go on, some new enlightened steps in the discovery of truth. For such is the
order of God’s enlightening his Church, to dispense and deal out by degrees
his beam, so as our earthly eyes may best sustain it.
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But if Milton is confident in the broad outlines of God’s
plans, he nonetheless urges humans themselves to do their
part and deliberate over religious truth. For “God uses not to
captivate [a man] under a perpetual childhood of prescription,
but trusts him with the gift of reason to be his own
chooser . . . .”179 And being one’s own chooser involves having to
choose in a world where good and evil are mutually
constitutive.180
In fact, according to Milton, man’s knowledge of good
begins with his knowledge of evil. He explains that Adam ate
the forbidden fruit and thus at once acquired knowledge of both
good and evil, and it was only by knowing evil that he came to
know good, and vice versa.181 Instead of dodging the spectacles
of evil, then, a dutiful Christian must vigorously seek them out
so as to refine his conception of that which is divine and good:
He that can apprehend and consider vice with all her baits and
seeming pleasures, and yet abstain, and yet distinguish, and yet
prefer that which is truly better, he is the true wayfaring Christian.
I cannot praise a fugitive and cloistered virtue, unexercised and
unbreathed, where that immortal garland is to be run for, not
without dust and heat.182
Here, Milton’s rhetoric of virtue, while situated squarely in
religious discourse, resonates with the language of Justice
Brandeis in Whitney, because both men identify as a threat to
the discovery of truth a passive audience that is indifferent to
the obligations of deliberation, whether those obligations derive
Id. at 61-62. When necessary, I have for clarity’s sake silently modernized Milton’s
spelling and grammar.
179
Id. at 19.
180
Milton writes:
Good and evil we know in the field of this World grow up together almost
inseparably; and the knowledge of good is so involved and interwoven with
the knowledge of evil, and in so many cunning resemblances hardly to be
discerned, that those confused seeds which were imposed on Psyche as an
incessant labor to cull out, and sort asunder, were not intermixed.
Id. at 19-20.
181
Milton explains:
It was from out of the rind of one apple tasted, that the knowledge of good
and evil as two twins cleaving together leapt forth into the World. And
perhaps that is that doom which Adam of knowing good and evil, that is to
say of knowing good by evil. As therefore the state of man now is; what
wisdom can there be to choose, what continence to forbear without the
knowledge of evil?
Id. at 20.
182
Id.
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from religion, as they did for Milton, or, in Brandeis’s case,
from the civic requirements of democracy. And in the following
passage, Milton sounds like the nineteenth century pragmatist
Mill, who argued that even false ideas can help the audience to
refine and confirm its assumption of truth:
Since therefore the knowledge and survey of vice is in this world so
necessary to the constituting of human virtue, and the scanning of
error to the confirmation of truth, how can we more safely, and with
less danger scout into the regions of sin and falsity than by reading
all manner of tracts, and hearing all manner of reason? And this is
the benefit which may be had of books promiscuously read.183
Notwithstanding (or, I suppose, because of) Milton’s
staunch faith in Christianity, the above passage is impressive
in its open-mindedness. It goes beyond his earlier argument
that good is mutually constitutive of evil. Here, Milton
broadens his purview of the acceptable by urging his readers to
reflect on “all manner of tracts” and “all manner of reason” and
to raid a “promiscuous” stock of books. In this way, as much as
Milton abhorred what he perceived as the intolerance of the
Catholics of his day,184 his disposition bears a resemblance to
that of the Catholic Church. The Catholic Church provides
another example of the benefit of the deliberative approach to
religious truth: the use of the devil’s advocate. Consider once
again Mill’s defense of a diversity of viewpoints and ideas.
While generally considered to be the bastion of secular
enlightenment, Mill’s On Liberty contains the telling example
of the Catholic Church’s use of the devil’s advocate, an example
that is all the more interesting because of Mill’s jaundiced
reference to the Catholic Church as the “most intolerant of
churches”:185
The most intolerant of churches, the Roman Catholic Church, even
at the canonization of a saint, admits, and listens patiently to, a
“devil’s advocate.” The holiest of men, it appears, cannot be admitted
183
MILTON, supra note 174, at 21.
Despite his tolerance for religious diversity, Milton refused to tolerate
Catholics for he felt that they refused to tolerate anyone else: “I mean not tolerated
Popery, and open superstition, which as it extirpates all religions and civil
supremacies, so itself should be extirpated, provided first that all charitable and
compassionate means be used to win and regain the weak and the misled . . . .” Id. at
60.
185
MILL, supra note 27, at 24.
184
2007]
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to posthumous honours, until all that the devil could say against him
is known and weighed.186
This passage can be read for the proposition that even if a
priest feels himself called by God to advocate a nominee for
sainthood, both the priest-advocate and those priests in the
audience can benefit from deliberation over different
viewpoints. Indeed, the original name of the “devil’s advocate”
was the “general promoter of the faith,” for it was the devil’s
advocate who urged Catholics to carefully deliberate about
whether a candidate for sainthood was worthy of their religious
faith.187
I have conscripted Milton’s ideas as well as the devil’s
advocate of the Catholic Church to show that even religionists
can benefit enormously from a deliberative approach to
religious truth. In the next section, I offer an example from a
secular perspective, that of Thomas Jefferson.
186
187
Id.
4 New Catholic Encyclopedia 705 (2d. ed. 2003).
The Promoter of the Faith was entrusted with opposing the claims of the
patrons of the cause and those of the “saint’s advocate,” thereby earning for
himself the easily misunderstood title of “devil’s” advocate. In actual fact, he
was rather the advocate of the Church, which must be extremely severe in
the investigation directed to establish whether or not a baptized person is
truly qualified to be beatified or canonized. Statistical data on such causes
clearly show that several processes, apparently very promising at the
beginning, had to be abandoned later because of difficulties, raised by the
promoter of the faith, that could not be satisfactorily answered. In these
cases, the critical and seemingly negative work of the promoter of the faith
undoubtedly had a great positive value, inasmuch as it prevented the Church
from pronouncing a certain and favorable judgment on the life and works of a
person without possessing unquestionable proof. The function of the promoter
of the faith proved itself most useful in the processes that were successfully
concluded. Not only did he guarantee that the proceedings were conducted
according to law, but the objections raised by him . . . compelled the patrons
of the cause to perform an ever more profound and complete examination of
the person in question.
Id. at 705-06. Especially interesting is how the Catholic Church, like Milton, views
deliberation as logically conducive to discovering the divine:
Consequently, [the promoter of the faith’s] activity contributed to the effort of
presenting the servant of God in his true image, so that the faith may come to
know the Christian richness of his soul and look on him as a person selected
by God for the Church and worthy of beatification and canonization.
Id. at 706.
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2. Skepticism Toward Religion: The Case of
Thomas Jefferson
A diversity of perspectives concerning the nature of
religion can help people to arrive at more justifiable
conclusions about religious truth. While he is generally
remembered as the President of the United States, Thomas
Jefferson was a thoughtful student of religion, and his
arguments deserve to be considered because he illustrates how
a diversity of viewpoints can be used to analyze the integrity of
a faith from a perspective outside the religious canon. During
his presidency, Jefferson was condemned by some religionists
as a stubborn atheist,188 but he took religious faith quite
seriously and insisted that people’s religious choices should be
respected, especially if they were the product of careful
deliberation over competing viewpoints, including competing
viewpoints that were grounded in those modes of logic and
deduction characteristic of secular enlightenment inquiry. A
sustained explanation of his position is found in his letter to
Peter Carr, his nephew. Jefferson writes to him:
Your reason is now mature enough to examine this object [of
religion]. In the first place, divest yourself of all bias in favor of
novelty and singularity of opinion. Indulge them in any other subject
rather than that of religion. It is too important, and the
consequences of error may be too serious. On the other hand, shake
off all the fears and servile prejudices, under which weak minds are
servilely crouched. Fix reason firmly in her seat, and call to her
tribunal every fact, every opinion. Question with boldness even the
existence of a God; because, if there be one, he must more approve of
the homage of reason, than that of blindfolded fear.189
Striking in the passage is its employment of those tropes that
structured Justice Brandeis’s Whitney concurrence: reason,
fear and courage.190 Like Brandeis, Jefferson contrasts reason,
which does not come naturally but must be propelled by
courage, against prejudice, which is a byproduct of fear.
Reason, as Jefferson conceives it, resembles Brandeis’s
188
So write Adrienne Koch and William Peden: “The financial bigwigs of New
York and New England still feared and opposed [Jefferson]; nor had reactionary and
orthodox churchmen completely abandoned their habit of tongue-lashing the ‘Atheist.’ ”
Adrienne Koch & William Peden, Introduction to THE LIFE AND SELECTED WRITINGS OF
THOMAS JEFFERSON xxxv (Adrienne Koch & William Peden eds., Random House 1993)
(1944) [hereinafter THE LIFE].
189
Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in id. at 399.
190
See Whitney v. California, 274 U.S. 357, 376 (1927), overruled in part by
Brandenburg v. Ohio, 395 U.S. 444; see also Blasi, supra note 35.
2007]
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conception in that it is meant to evoke a posture of critical
inquiry, not necessarily a deeper philosophical commitment
that rejects religion or considers reason incompatible with
religion. Indeed, the lens of reason could, according to
Jefferson, theoretically steer its possessor to admit the
existence of God.191
We are afforded an example of the importance Jefferson
placed on deliberation in his discussion of the book of Joshua in
the Christian Bible. He admonishes Carr:
But those facts in the Bible which contradict the laws of nature,
must be examined with more care, and under a variety of faces. Here
you must recur to the pretensions of the writer to inspiration from
God. Examine upon what evidence his pretensions are founded, and
whether that evidence is so strong, as that its falsehood would be
more improbable than a change in the laws of nature, in the case he
relates. For example, in the book of Joshua, we are told, the sun
stood still several hours. Were we to read that fact in Livy or
Tacitus, we should class it with their showers of blood, speaking of
statues, beasts, etc. But it is said, that the writer of that book was
inspired. Examine, therefore, candidly, what evidence there is of his
having been inspired.192
Although the trajectory of his discussion appears to discount
the veracity of the biblical miracles, Jefferson ultimately
remains agnostic, accepting his own advice to Carr to “divest
yourself of all bias in favor of novelty and singularity of
opinion.”193 So he tells Carr that the account of the sun standing
still for several hours is “entitled to your inquiry, because
millions believe it.”194 “On the other hand,” Jefferson qualifies,
you are astronomer enough to know how contrary it is to the law of
nature that a body revolving on its axis, as the earth does, should
have stopped, should not, by that sudden stoppage, have prostrated
animals, trees, buildings, and should after a certain time have
191
Jefferson writes:
Do not be frightened from this inquiry by any fear of its consequences. If it
ends in a belief that there is no God, you will find incitements to virtue in the
comfort and pleasantness you feel in its exercise, and the love of others which
it will procure you. If you find reason to believe there is a God, a
consciousness that you are acting under his eye, and that he approves you,
will be a vast additional incitement . . . . If that Jesus was also a God, you
will be comforted by a belief of his aid and love.
Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in THE LIFE, supra note
188, at 397, 400.
192
Id. at 399.
193
Id.
194
Id.
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resumed its revolution, and that without a second general
prostration.195
Jefferson takes a similarly skeptical but non-preemptive
approach of bringing to Carr’s attention the competing views
regarding whether Jesus was actually the Son of God.196
True, many people will reject this sort of counsel to
deliberate, and I am sure that many people believe that we
attain religious truths by way of things like the heavenly lights
and the literal conversation with God that transformed Paul on
the Damascus Road. But as one who has yet to be blessed with
such extraordinary experiences, I find useful a measured
skepticism, whether it be of the sort associated with Jefferson
or Milton, toward the discovery of some truth regarding
religion.
With this observation, I devote my time in the
subsequent sections to outlining the legal dimensions of
extending the justification from truth to religious expression.
IV.
IMPORTANCE OF RELIGION IN THE SUPREME COURT
The Supreme Court in New York Times reasoned that
the public’s right to a diversity of political speech was
warranted partly by the formal assumptions of democracy.
Similarly, in Virginia State Board of Pharmacy, the Court
reasoned that the public’s access to a diversity of commercial
speech was warranted partly by the people’s desire for less
expensive prescription drugs. If we are to extend the
justification from truth and its attendant insistence on a
diversity of views, we should clarify the ways in which religion,
like democratic politics and consumer consumption, warrants
application of the justification. It is my intent to show that
religion, according to the Supreme Court, occupies or can
195
196
Id.
Jefferson advises Carr:
You will next read the New Testament. It is the history of a personage called
Jesus. Keep in your eye the opposite pretensions: 1, of those who say he was
begotten by God, born of a virgin, suspended and reversed the laws of nature
at will, and ascended bodily into heaven; and 2, of those who say he was a
man of illegitimate birth, of a benevolent heart, enthusiastic mind, who set
out without pretensions to divinity, ended in believing them, and was
punished capitally for sedition, by being gibbeted, according to the Roman
law, which punished the first commission of that offence by whipping, and
the second by exile, or death in furea . . . .
Id. at 399-400.
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DELIBERATING THE DIVINE
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occupy a place in a person’s life that is theoretically at least as
important as democratic politics or consumer consumption.
In New York Times and Virginia State Board of
Pharmacy, the Supreme Court appears to believe that the
audience is entitled to hear a diversity of viewpoints and ideas
for speech that is either political or commercial because there is
something worthy, even compelling, about being presumptively
well-informed in the arena of democratic politics or commercial
consumption. Yet if politics or commercial consumption
represents a potentially important endeavor where a person
can benefit from access to a diversity of viewpoints and ideas,
so too does religion. For while democratic politics and
commercial consumption are important, it is hard to justify
why religion is somehow less important in people’s lives. The
very idea of religion, after all, presupposes a set of beliefs about
an individual’s deepest moral convictions, the meaning of her
existence, the origins of her creation, and the possibility of
afterlife.197 And this premise is shared by not just religionists or
students of divinity. It finds support in a domain that is hardly
an exemplum of religiosity—the legal canon of the Supreme
Court. There, religion is defined as a source of one’s
profoundest meditations about the meaning of life as well as
the highest moral authority. Such characterization goes beyond
suggesting that religion should be viewed as at least as
important as politics or commercial consumption in a person’s
life. It suggests also that religionists deserve a right of
autonomy that is free from undue state regulation, and this
autonomy in turn implies that people should be able to get
access to religious expression, including a diverse array of
expression, to make better approximations about some
religious truth.
Even as the Supreme Court has ruled against particular
religious practices, it has consistently recognized the signal
importance of religion as an abstract idea. Justice Frankfurter,
197
Professor Marshall offers apt statements:
Religion is concerned centrally with the understanding of a transcendent
reality that explains and defines human existence. Whether God exists, for
example, is very much the question of what is transcendent truth. Similarly,
even for those religions which do not use a godhead, the essential religious
question of understanding one’s place in the universe is indivisible from the
question of what is truth.
Marshall, supra note 1, at 16. The psychologist Erich Fromm has also written that for
all major religions “man’s obligation to search for the truth is an integral postulate.”
FROMM, supra note 155, at 19.
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although deciding against a claim for exemption by Jehovah’s
Witnesses in Minersville School District v. Gobitis, nonetheless
asserted, “Certainly the affirmative pursuit of one’s convictions
about the ultimate mystery of the universe and man’s relation
to it is placed beyond the reach of law. Government may not
interfere with organized or individual expression of belief or
disbelief.”198 More emphatically, Justice Jackson in overturning
Frankfurter’s opinion announced in West Virginia State Board
of Education v. Barnette, “One’s right to . . . freedom of worship
and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no
elections.”199 Yet the Court’s recognition of religion as a
significant enterprise deserving of constitutional protection
preceded the twentieth century opinions of Justices Jackson
and Frankfurter. In an early example from the nineteenth
century, even as he rejected the Mormon’s arguments, Justice
Field for the Court stated in Davis v. Beason that the term
“‘religion’ has reference to one’s views of his relations to his
Creator, and to the obligations they impose of reverence for his
being and character, and of obedience to his will.”200
United States v. Seeger201 encapsulates for the
contemporary Supreme Court the concept of religion as
addressing ultimate questions and as constitutive of a
comprehensive worldview. The Seeger Court defined religion by
way of statutory interpretation rather than the First
Amendment, and thus we are not afforded a direct statement
about religion’s constitutional meaning. However, the
discussion in Seeger is still profitable because it represents the
closest attempt by the Court at a sustained definition of
religion. Daniel Seeger was convicted for refusing induction
into the armed forces. His refusal was not straightforward,
though. On the one hand, he sought under section 6(j) of the
Universal Military Training and Service Act an exemption for
those who “by reason of their religious training and belief are
conscientiously opposed to participation in war in any
form . . . .”202 On the other hand, Seeger “preferred to leave the
198
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 593 (1940), overruled by
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
199
Barnette, 319 U.S. at 638.
200
Davis v. Beason, 133 U.S. 333, 342 (1890).
201
380 U.S. 163 (1965).
202
Id. at 164-66.
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DELIBERATING THE DIVINE
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question as to his belief in a Supreme Being open.”203 While
Seeger harbored a “skepticism or disbelief in the existence of
God,” he did “not necessarily mean lack of faith in anything
whatsoever.”204 Instead, his was a “belief in and devotion to
goodness and virtue for their own sakes, and a religious faith in
a purely ethical creed.”205 The Court was thus confronted with
deciding whether the term “religious belief” in section 6(j) of
the federal statute was capacious enough to accommodate
Seeger’s views. Although this task necessitated statutory
interpretation, it also permitted the Court an opportunity to
make indirectly some telling remarks about the meaning of
religion in the First Amendment.
In interpreting the statute’s reference to “religious
belief,” the Court spoke of the need to embrace “the everbroadening understanding of the modern religious community,”
but one common thread among these religions, according to the
Court, was an engagement with an ultimate being or some
metaphysical truth from which derived the highest moral
duties. Justice Clark for the Seeger Court quoted the dissenting
opinion of Chief Justice Hughes in United States v.
Macintosh.206 It was Hughes, Clark wrote, who “enunciated the
rationale behind the long recognition of conscientious objection
to participation in war accorded by Congress in our various
conscription laws when he declared that ‘in the forum of
conscience, duty to a moral power higher than the state has
always been maintained.’”207 According to Clark, the
Congressional statute at issue in Seeger “adopted almost intact
the language of Chief Justice Hughes in United States v.
Macintosh,” which stated that the “essence of religion is belief
in a relation to God involving duties superior to those arising
from any human relation.”208 With these premises in mind,
Clark permitted under section 6(j) “all sincere religious beliefs
203
Id. at 166.
Id.
205
Id.
206
Id. at 169 (quoting United States v. Macintosh, 283 U.S. 605 (1931)).
207
Id. at 169-70 (quoting Macintosh, 283 U.S. at 633).
208
Id. at 175 (quoting Macintosh, 283 U.S. at 633-34). So, too, Justice Clark
believed that Congress “must have had in mind the admonitions of the Chief Justice
when he said in the same opinion that even the word ‘God’ had myriad meanings for
men of faith: ‘[P]utting aside dogmas with their particular conceptions of deity, freedom
of conscience itself implies respect for an innate conviction of paramount duty.” Id. at
175-76 (quoting Macintosh, 283 U.S. at 634). Seeger referred to religion as involving
the “fundamental questions of man’s predicament in life, in death or in final judgment
and retribution.” Id. at 174.
204
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which are based upon a power or being, or upon a faith, to
which all else is subordinate or upon which all else is
ultimately dependent.”209 This is a striking claim, for I suspect
that no one on the Court would say that participation in
politics or commercial consumption makes all else
“subordinate” or is that “upon which all else is ultimately
dependent.”
Also worth considering is the Court’s discussion of the
theologian Paul Tillich. The Court quoted with approval the
following passage from one of Tillich’s books:
And if that word (God) has not much meaning for you, translate it,
and speak of the depths of your life, of the source of your being, or
your ultimate concern, of what you take seriously without any
reservation. Perhaps, in order to do so, you must forget everything
traditional that you have learned about God . . . .210
In the passage, the definition of religion need not be restricted
to a standard Western Christian model. But according to both
Tillich and the Court it does have to speak to an individual’s
greatest existential concerns: the “depths of your life, of the
source of your being, or your ultimate concern, of what you take
seriously without any reservation.” Again, we cannot similarly
announce that, as a general matter, voting for a mayoral or
even a presidential candidate or buying cheaper prescription
drugs goes to the “depths of your life, of the source of your
being, or your ultimate concern, of what you take seriously
without any reservation.”
The Supreme Court expanded its definition of religion in
Welsh v. United States.211 Like Seeger, this case finds the Court
having to grapple with the terms of section 6(j) of the Universal
Military Training and Service Act. But unlike Seeger, who at
least professed the possibility that he might be considered
religious under section 6(j), Elliot Welsh flatly disclaimed any
belief in God.212 His moral resistance to war was instead formed
by “reading in the fields of history and sociology.”213 Yet the
Court concluded that Welsh’s morals were sufficiently
analogous to the statute’s definition of religion, partly because
the Court of Appeals decided that Welsh’s beliefs were
209
210
Seeger, 380 U.S. at 176.
Id. at 187 (quoting PAUL TILLICH, THE SHAKING OF THE FOUNDATIONS 57
(1948)).
211
212
213
398 U.S. 333 (1970).
Id. at 341.
Id.
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analogous to “the strength of more traditional religious
convictions . . . .”214 Again, what I wish to stress is how the
Court views religion as an important and even paramount
moral enterprise, for Welsh would not have been permitted an
exception under section 6(j) had he merely asserted that he
sincerely held moral beliefs against war that bore no structural
correspondence to religion.215 In this way, the concept of
conscientious objector status illustrates how religious
expression under some circumstances appears to draw greater
constitutional protection than secular speech alone. Given that
according to the Supreme Court religion is analogous to and
expressive of our deepest moral convictions, it seems
reasonable to suggest that the right of free exercise should be
justified in part by the right of people to have access to
religious expression.216
V.
HOW THE RELIGION CLAUSES PROMOTE DELIBERATION
If deliberation over a diversity of views is a potentially
useful means to arrive at the truth about religion or a
particular religion, does the Constitution afford the means by
which people can so deliberate? I believe it does. Specifically,
the two religion clauses, especially when read together, forbid
the state from invading the privacy that one needs in order to
weigh competing religious perspectives.217
214
Id. at 337.
Here, it is worth considering Chief Justice Burger’s majority opinion in
Wisconsin v. Yoder where he distinguished the constitutional status of religious
expression and secular speech:
215
Although a determination of what is a “religious” belief or practice entitled to
constitutional protection may present a most delicate question, the very
concept of ordered liberty precludes allowing every person to make his own
standards on matters of conduct in which society as a whole has important
interests. Thus, if the Amish asserted their claims because of their subjective
evaluation and rejection of the contemporary secular values accepted by the
majority, much as Thoreau rejected the social values of his time and isolated
himself at Walden Pond, their claims would not rest on a religious basis.
Thoreau’s choice was philosophical and personal rather than religious, and
such belief does not rise to the demands of the Religion Clauses.
Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972) (footnote omitted).
216
Or, stated differently, if commercials for five different brands of toothpaste
can be justified by the Court in terms of informing the audience, surely we could say
the same for religious expression.
217
Professor Marshall has made a complementary argument but he argues
that the religion clauses forbid the state to monopolize a truth concerning religion.
Marshall, supra note 12, at 255-60. I make the different argument that the clauses
tend to promote a diversity of viewpoints. In this way, I am inclined to believe that he
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The Free Exercise Clause
In order to deliberate on a diversity of viewpoints
concerning religion, one needs a legal space that is sufficiently
free from state interference, whether that interference
manifests itself as informal coercion or formal penalties. The
Free Exercise Clause provides protection against such
interference. For inherent in the Free Exercise Clause is a
commitment to a liberty of conscience, which, “as understood at
American law today, embraces the freedom of the person to
choose or to change religious beliefs or practices without
coercion or control by government and without facing
discrimination or penalties for the religious choices once
made.”218 This right of freedom of conscience has been protected
on both an organizational and an individual level.
On the organization level, the Supreme Court has
protected the right of churches and religious corporate bodies
to be shielded from states’ attempts to impose their views of
religion. An early iteration of this commitment was announced
by the Court in Watson v. Jones.219 In Watson, two rival
Presbyterian factions in Kentucky disagreed about which
should own a church.220 One faction argued that its teachings
were most consistent with the church’s original intent.221 The
Court refused to adjudicate the matter based on interpretations
about religious doctrine.222 Its rationale read:
In this country the full and free right to entertain any religious
belief, to practice any religious principle, and to teach any religious
doctrine which does not violate the laws of morality and property,
and which does not infringe personal rights, is conceded to all. The
law knows no heresy, and is committed to the support of no dogma,
the establishment of no sect. The right to organize voluntary
religious associations to assist in the expression and dissemination
of any religious doctrine, and to create tribunals for the decision of
controverted questions of faith within the association, and for the
ecclesiastical government of all the individual members,
is making an argument that is conceptually similar to Holmes’s version of the
justification from truth while I am making an argument that is closer to the logic of
Brandeis’s version. For the distinction between the Holmes and Brandeis, see supra
Part I.
218
JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL
EXPERIMENT: ESSENTIAL RIGHTS AND LIBERTIES 130 (2000); see also supra note 11
(para. 2).
219
80 U.S. 679 (1871).
220
Id. at 703.
221
Id. at 698.
222
Id. at 727-29.
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congregations, and officers within the general association, is
unquestioned.223
While Watson concerned a mainstream group in the
Presbyterians, United States v. Ballard showed a Supreme
Court willing to extend the protection of religious free exercise
to more exotic churches and thus signaled the Court’s
recognition of the value of religious diversity.224 The leaders of a
church in Ballard were charged with violating a federal statute
that prohibited the use of the mail to conduct fraud.225 They
were said to have misrepresented themselves by way of absurd
and inconsistent promises. For example, Guy Ballard, the
church leader, had called himself Saint Germain, Jesus, and
George Washington.226 He also claimed to possess supernatural
powers to heal those afflicted with “any diseases, injuries, or
ailments.”227 In the face of these eccentric, if not absurd, claims,
the Court nonetheless asserted that the Free Exercise Clause
must protect even the strangest of religious beliefs. Justice
Douglas remanded the case and stressed to the lower court the
importance of protecting the freedom of religious belief, even
those beliefs that may be “incomprehensible” to some.228
The Court continued to protect the free exercise rights
of religious organizations in other cases by protecting the
rights of their members to deliberate about their spiritual
issues. In Kedroff v. Saint Nicholas Cathedral,229 the Court
invalidated a New York statute that sought to prevent the
Russian Orthodox Church in Moscow from appointing a bishop
in New York who would take possession of a Russian Orthodox
church in that state.230 The rather unusual legislative
prohibition was the result of a conflict between Communistappointed Russian Orthodox leaders and some of their
American counterparts who, contrary to tradition, no longer
wanted to be under the former’s jurisdictional control.231 Trying
to strike a blow for patriotism, New York passed legislation
223
224
225
226
227
228
229
230
231
Id. at 728-29.
United States v. Ballard, 322 U.S. 78, 86 (1944).
Id. at 79.
Id.
Id. at 80.
Id. at 86.
344 U.S. 94 (1952).
Id. at 107.
Id. at 95-108.
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that sided with the American members of the church.232 Kedroff
argued that the Free Exercise Clause forbade such legislation.
Justice Reed stated for the Court that in this case there is “a
transfer by statute of control over churches” which therefore
“violates our rule of separation between church and state.”233
The Court emphasized the “spirit of freedom for religious
organizations, an independence from secular control or
manipulation—in short, power to decide for themselves, free
from state interference, matters of church government as well
as those of faith and doctrine.”234
The Court has also sought to protect the free exercise
rights of individuals. In Cantwell v. Connecticut, the first case
in which the Court analyzed the right of religious exercise with
respect to a state law, Justice Roberts wrote that the right of
religious free exercise for individuals as such “forestalls
compulsion by law of the acceptance of any creed or the
practice of any form of worship” and that “[f]reedom of
conscience and freedom to adhere to such religious organization
or form of worship as the individual may choose cannot be
restricted by law.”235 Similarly, three years later, Justice
Jackson in Barnette extended protection to the religious
practices of Jehovah’s Witnesses with the following words: “If
there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe which shall be
orthodox in . . . religion, or other matters of opinion . . . .”236
Some of the Court’s most prominent free exercise
decisions involved individuals who sought exemptions from
generally applicable laws in the area of unemployment
benefits. Sherbert v. Verner237 was one of the first of such cases.
After being fired for refusing to work on Saturday, her Sabbath
Day, a Seventh Day Adventist was denied unemployment
benefits by a state agency.238 Justice Brennan for the Court
remanded the decision but left little doubt as to how he wanted
the lower court to decide.239 According to Brennan, “to condition
the availability of benefits upon this appellant’s willingness to
232
233
234
235
236
237
238
239
See Kedroff, 344 U.S. at 97-99.
Id. at 110.
Id. at 116.
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
374 U.S. 398 (1963).
Id. at 399-401.
Id. at 402.
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violate a cardinal principle of her religious faith effectively
penalizes the free exercise of her constitutional liberties.”240 The
Court rendered a philosophically consonant opinion in Thomas
v. Review Board.241 Here, too, a person refused work because he
saw it as violating his religious beliefs. After being discharged
for his refusal to work building gun turrets for tanks, a
Jehovah’s Witness, like Sherbert’s Seventh Day Adventist, was
denied unemployment benefits by a state agency. Chief Justice
Burger for the Court found the denial to be a violation of the
Free Exercise Clause. Burger explained:
Where the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies such a
benefit because of conduct mandated by religious belief, thereby
putting substantial pressure on an adherent to modify his behavior
and to violate his beliefs, a burden upon religion exists. While the
compulsion may be indirect, the infringement upon free exercise is
nonetheless substantial.242
Thomas, like Sherbert, stands for the proposition that the state
should not impose a monopoly of truth about religion by
coercing people to violate their beliefs or impairing the
deliberative processes that produce them.
Yet if Thomas represented a high mark of contemporary
judicial protection for free exercise, Employment Division v.
Smith243 represented a decidedly low one. Oregon had a statute
that prohibited “the knowing or intentional possession of a
‘controlled substance’ unless the substance has been prescribed
by a medical practitioner.”244 A member of the Native American
Church, Alfred Smith ingested peyote, a controlled substance
under the statute, as part of his religious practices.245 Smith’s
employer found out and became angry, for Smith worked as a
240
Id. at 406. The Court reiterated this statement in Hobbie v. Unemployment
Appeals Commission of Florida. 480 U.S. 136, 146 (1987) (“Here, as in Sherbert and
Thomas, the State may not force an employee ‘to choose between following the precepts
of her religion and forfeiting benefits, . . . and abandoning one of the precepts of her
religion in order to accept work.’ ”).
241
Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707
(1981).
242
Id. at 717-18.
243
Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872
(1990), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No.
103-141, 107 Stat. 1488, invalidated in part by City of Boerne v. Flores, 521 U.S. 507
(1997) and recognized in part by Gonzales v. O Centro Espirita Beneficente Uniao Do
Vegetal, 546 U.S. 418 (2006).
244
Id. at 874.
245
Id.
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counselor at a drug rehabilitation center and his employer felt
that the activity, while performed outside the workplace, was
nonetheless incompatible with the duties of a drug counselor.246
After being fired, Smith sought but was denied unemployment
benefits from the state because he “had been discharged for
work-related ‘misconduct.’”247 He sued the state unemployment
agency for violating his right of free exercise. The case
eventually made its way to the United States Supreme Court.
Justice Scalia for the majority rejected Smith’s
argument and offered what many regard as a surprisingly
unsympathetic view of religious liberty. He began with the
relatively uncontroversial statement that the justices “have
never held that an individual’s religious beliefs excuse him
from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate.”248 This banal
pronouncement soon gave way to more elaborate and
restrictive reasoning, a move foreshadowed by Scalia’s
resurrection of Justice Frankfurter’s opinion in Gobitis.249
Scalia announced a controversial interpretation of the case law
by declaring that the “only decisions in which we have held
that the First Amendment bars application of a neutral,
generally applicable law to religiously motivated action have
involved not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional
protections . . . .”250 He also rejected the argument that the
protectiveness of the Sherbert test should govern this case.251
246
247
248
249
Smith, 494 U.S. at 872.
Id. at 874.
Id. at 878-79.
Scalia invoked the following language from Frankfurter’s opinion:
Conscientious scruples have not, in the course of the long struggle for
religious toleration, relieved the individual from obedience to a general law
not aimed at the promotion or restriction of religious beliefs. The mere
possession of religious convictions which contradict the relevant concerns of a
political society does not relieve the citizen from the discharge of political
responsibilities (footnote omitted).
Id. at 879 (quoting Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594-95 (1940),
overruled by W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)).
250
Id. at 881. The Court decided that Oregon’s prohibition on peyote was a
generally applicable law that merited nothing higher than rational review, which it
passed. Id. at 878-81.
251
Scalia wrote:
Under the Sherbert test, governmental actions that substantially burden a
religious practice must be justified by a compelling governmental interest.
Applying that test we have, on three occasions, invalidated state
2007]
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Through these two maneuvers, Scalia drew considerable
criticism from other justices and legal scholars as well as from
Congress.252 It is not my aim to evaluate these criticisms but
rather to clarify and underscore how Scalia’s opinion, despite
its reputation in some quarters as unresponsive to religionists
who belong to minority faiths,253 nonetheless rejected the view
that the state may compel affirmation of some truth about
religion. For he wrote:
The free exercise of religion means, first and foremost, the right to
believe and profess whatever religious doctrine one desires. Thus,
the First Amendment obviously excludes all “governmental
regulation of religious beliefs as such.” . . . The government may not
compel affirmation of religious belief, . . . punish the expression of
religious doctrines it believes to be false, . . . impose special
disabilities on the basis of religious views or religious status, . . . or
lend its power to one or the other side in controversies over religious
authority or dogma . . . .254
While many religionists were dismayed by Scalia’s opinion,
what remains clear is that Smith is dedicated in principle to
the position that the state should permit people the space in
which to deliberate about a diversity of beliefs.
B.
The Establishment Clause
Like the Free Exercise Clause, the Establishment
Clause also preserves a space in which the individual can,
without undue state interference, deliberate about a diversity
of views on religion. Explicating this position however is not a
straightforward task, given that there is disagreement about
unemployment compensation rules that conditioned the availability of
benefits upon an applicant’s willingness to work under conditions forbidden
by his religion. We have never invalidated any governmental action on the
basis of the Sherbert test except the denial of unemployment compensation.
Although we have sometimes purported to apply the Sherbert test in contexts
other than that, we have always found the test satisfied. In recent years we
have abstained from applying the Sherbert test (outside the unemployment
compensation field) at all.
Id. at 883 (citations omitted).
252
Congress, in an attempt to overturn Scalia’s opinion, passed the American
Indian Religious Freedom Act Amendments of 1994. Pub. L. No. 103-344, 108 Stat.
3125 (1994) (codified at 42 U.S.C. § 1996a (2000)).
253
See, e.g., CARTER, supra note 134, at 128-29 (“The judgment against the
Native American Church [in Smith], however, demonstrates that the political process
will protect only the mainstream religions, not many smaller groups that exist at the
margins.”).
254
Smith, 494 U.S. at 877.
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what is the proper test to adjudicate a violation of the
Establishment Clause. I will not attempt to settle the debate, a
job that would take me outside the aims of this Article. But I
will argue that under all of the prominent judicial tests, the
Court has made clear that the Establishment Clause prohibits
the state from claiming a monopoly on religious truth. There
are essentially three255 prominent judicial theories for
underwriting the Establishment Clause256: strict separation,
neutrality, and accommodation.
The strict separation theory aspires to the maximum
separation of church and state. Its most famous American
expositor is Thomas Jefferson, who made clear his advocacy for
the separation of church and state in his letter to the Danbury
Baptist Association in 1802. There, he penned his famous
metaphor of a “wall of a separation between church and state”:
I contemplate with sovereign reverence that act of the whole
American people which declared that their legislature should “make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof,” thus building a wall of separation between
church and State.257
In the case law, Everson v. Board of Education258 represents the
single most emphatic endorsement of this strict separation
theory.259 While Justice Black wrote the majority opinion and
Justice Rutledge the dissent, both subscribed to a version of
strict separation that denied the state’s ability to monopolize
religious truth. Black initially wrote: “The ‘establishment of
religion’ clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a
church.”260 What followed was an illuminating commitment to
protecting opportunities for people to deliberate about a
diversity of views regarding religion. Black asserted that
255
While some scholars might argue that there are more, mostly for purposes
of convenience, I will bypass some of the subtler differences.
256
Professor Witte has identified additional judicial theories for
disestablishment: separationism, accomodationism, neutrality, endorsement, and equal
treatment. WITTE, supra note 218, at 152-63.
257
Letter from Thomas Jefferson to Messrs. Nehemiah Dodge, Ephraim
Robbins, and Stephen S. Nelson, A Committee of the Danbury Baptist Association, in
the State of Connecticut (Jan. 1, 1802), in THE LIFE, supra note 188, at 307, 307.
258
330 U.S. 1 (1947).
259
In Everson, the state permitted school boards to reimburse parents who
sent their children to private schools, including Catholic schools, for the cost of
transportation to and from the school. Id. at 16-18.
260
Id. at 15.
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neither the state nor the federal government “can pass laws
which aid one religion, aid all religions, or prefer one religion
over another.”261 By adopting this position of neutrality, one can
read the Establishment Clause as affording equal opportunities
for all religionists to deliberate about their faiths. Black’s
commitment to neutrality animated his other statements:
[Neither state nor federal government] can force nor influence a
person to go to or to remain away from church against his will or
force him to profess a belief or disbelief in any religion. No person
can be punished for entertaining or professing religious beliefs or
disbeliefs, for church attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion. Neither a state nor
the Federal Government can, openly or secretly, participate in the
affairs of any religious organizations or groups and vice versa.262
Although dissenting in the same case that contains this
passage, Justice Rutledge was no less committed to the
abstract proposition of strict separation, and, accordingly, his
justifications can also be interpreted as supporting protection
for the deliberation of diverse faiths.263 He wrote:
The Amendment’s purpose was not to strike merely at the official
establishment of a single sect, creed or religion, outlawing only a
formal relation such as had prevailed in England and some of the
colonies. Necessarily it was to uproot all such relationships. But the
object was broader than separating church and state in this narrow
sense. It was to create a complete and permanent separation of the
spheres of religious activity and civil authority by comprehensively
forbidding every form of public aid or support for religion.264
This staunch commitment to separation of church and state
characterized the Court’s Establishment Clause jurisprudence
from Everson to the 1980s.265
What has come to partly replace the strict separation
approach is the neutrality approach. The neutrality approach
261
Id. at 15-16. For similar views, see, e.g., Epperson v. Arkansas, 393 U.S.
97, 103-04 (1968) (“Government in our democracy, state and national, must be neutral
in matters of religious theory, doctrine, and practice.”).
262
Id. at 15.
263
Of course, “the very fact that Justices who agreed on the governing
principle could divide so sharply on the result suggests that the principle evoked by the
image of a wall furnishes less guidance than metaphor.” TRIBE, supra note 3, at 1166.
264
Everson, 330 U.S. at 31-32.
265
Ira C. Lupu, The Lingering Death of Separationism, 62 GEO. WASH. L. REV.
230, 233-34 (1994) (Strict separation “became the ‘official’ history of the
[establishment] clause until challenged by scholars and Justices in the early 1980s.”).
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to the Establishment Clause seeks to ensure that the state
neither advances one religion over another nor advances
religion over secularism or secularism over religion. In the
Supreme Court, this approach has taken the form of an
endorsement test, and Justice O’Connor assumed the role of
one of its main articulators. In Lynch v. Donnelly, she began
her concurring opinion with the announcement that the
“Establishment Clause prohibits government from making
adherence to a religion relevant in any way to a person’s
standing in the political community.”266 She further explained:
Government can run afoul of that prohibition in two principal ways.
One is excessive entanglement with religious institutions, which
may interfere with the independence of the institutions, give the
institutions access to government or governmental powers not fully
shared by nonadherents of the religion, and foster the creation of
political constituencies defined along religious lines . . . . The second
and more direct infringement is government endorsement or
disapproval of religion. Endorsement 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.
Disapproval sends the opposite message.267
What chiefly distinguishes the endorsement test from the strict
separation test, then, is the former’s commitment to social
inclusion and equal citizenship.268 Here too, however, the
endorsement test, like the strict separation test, can be
interpreted as an attempt to protect spaces for religionists to
deliberate about a diversity of views. For no matter the view,
the state is prohibited from stigmatizing, and thus coercing,
people on the basis of what they choose to deliberate.
The accommodation approach, compared to the
neutrality approach, is less protective of the religionist; for
while the latter requires the religionist to show that the law
makes her feel unwelcome, the former requires the religionist
to show that the law goes further by coercing her to conform
her beliefs to those privileged by the state. Lee v. Weisman269 is
a prime example of this approach. In that case, the principal of
a public middle school invited a rabbi to deliver a
266
Lynch v. Donnelly, 465 U.S. 668, 687 (1984).
Id. at 687-88 (citation omitted).
268
For a complementary perspective, see KENNETH L. KARST, BELONGING TO
AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989).
269
505 U.S. 577 (1992).
267
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nondenominational prayer at the graduation ceremony.270 The
prayer was prepared by the National Conference of Christians
and Jews and was meant to be governed by a spirit of
“inclusiveness and sensitivity.”271 Justice Kennedy for the Court
found the prayer to violate the Establishment Clause because
it had the tendency to coerce students who did not wish to
participate in the prayer.272 According to Kennedy, “It is beyond
dispute that, at a minimum, the Constitution guarantees that
government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which
‘establishes a [state] religion or religious faith, or tends to do
270
Id. at 581.
Id. There were two prayers, an Invocation and a Benediction. The
Invocation read:
271
God of the Free, Hope of the Brave:
For the legacy of America where diversity is celebrated and the rights of
minorities are protected, we thank You. May these young men and women
grow up to enrich it.
For the liberty of America, we thank You. May these new graduates grow up
to guard it.
For the political process of America in which all its citizens may participate,
for its court system where all may seek justice we thank You. May those we
honor this morning always turn to it in trust.
For the destiny of America we thank You. May the graduates of Nathan
Bishop Middle School so live that they might help to share it.
May our aspirations for our country and for these young people, who are our
hope for the future, be richly fulfilled.
Amen.
The Benediction read:
O God, we are grateful to You for having endowed us with the capacity for
learning which we have celebrated on this joyous commencement.
Happy families give thanks for seeing their children achieve an important
milestone. Send Your blessings upon the teachers and administrators who
helped prepare them.
The graduates now need strength and guidance for the future, help them to
understand that we are not complete with academic knowledge alone. We
must each strive to fulfill what You require of us all: To do justly, to love
mercy, to walk humbly.
We give thanks to You, Lord, for keeping us alive, sustaining us and allowing
us to reach this special, happy occasion.
Amen.
Id. at 581-82.
272
Id. at 589-94.
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so.’ ”273 However, there was a danger that such coercion would
occur at the public school, where the state had such complete
control over the graduation ceremony that the prayer became
“a state-sanctioned religious exercise in which the student was
left with no alternative but to submit.”274
While there may be disagreement, as there was on the
Court itself, about whether the school prayer rose to the level of
coercion, what remains clear is that the Court’s preoccupation
with coercion under the accommodation approach reflects a
strong commitment to protecting people’s rights to deliberate
about a diversity of religious views without undue state
intervention. Thus, the Constitution’s religion clauses, as
interpreted by the Supreme Court, provide protections that
allow for the deliberation of religious truth, thereby making the
justification from truth a viable possibility in the context of
religion.
VI.
APPLICATIONS
Thus far, I have tried to formulate the legal foundations
of the justification from truth for purposes of religious
expression. Now I want to explain how this justification would
possibly manifest itself in the case law. In doing so, I try to
explain first how the justification would articulate its terms in
a given set of case facts, and second, how the justification
would serve as an adjudicative principle by deciding in favor of
one party and against another. To offer as lucid of an account
as possible, I begin with some relatively easy cases where the
Supreme Court itself appeared to be applying a version of the
justification from truth. I then move to cases where application
of the justification from truth can generate new arguments for
cases in which the Supreme Court relied on a different
justification.
A.
Religious Proselytism
I want to start with the relatively easy cases where the
Supreme Court itself has at least hinted that it was applying
the justification from truth to religious expression. What
makes these cases so amenable to this justification is that they
involve proselytizing, that is, efforts to persuade the audience
273
274
Lee, 505 U.S. at 587 (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)).
Id. at 597.
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that a given religion is the truth.275 Cantwell v. Connecticut276 is
an excellent example. A Jehovah’s Witness named Newton
Cantwell, along with his two sons, played a phonographic
record in an area where “about ninety per cent of the residents
are Roman Catholics.”277 The record “included an attack on the
Catholic religion.”278 Cantwell asked two men walking the
street whether they would be interested in hearing the record,
and they acquiesced.279 Upon hearing the record, both men
“were incensed by the contents of the record and were tempted
to strike Cantwell unless he went away.”280 Cantwell and his
sons were charged with and convicted of invoking or inciting
others to breach of the peace.281
Their case eventually made its way to the Supreme
Court.282 Writing for the Court, Justice Roberts overturned
Cantwell’s conviction by offering a justification that departed
in crucial ways from the Court’s standard justification for
religious conscience. He wrote:
We find in the instant case no assault or threatening of bodily harm,
no truculent bearing, no intentional discourtesy, no personal abuse.
On the contrary, we find only an effort to persuade a willing listener
to buy a book or to contribute money in the interest of what
Cantwell, however misguided others may think him, conceived to be
true religion.
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation have
ordained in the light of history, that, in spite of the probability of
excesses and abuses, these liberties are, in the long view, essential to
275
The Oxford English Dictionary defines “proselyte” as “to cause to come over
or turn from one opinion, belief, creed, or party to another; esp. to convert from one
religious faith or sect to another.” 12 OXFORD ENGLISH DICTIONARY, supra note 24, at
664.
276
310 U.S. 296, 310 (1940).
277
Id. at 301.
278
Id.
279
Id. at 302-03.
280
Id. at 303.
281
Id.
282
This was also the first Supreme Court case that made the right of free
religious exercise applicable to states by incorporating the right through the
Fourteenth Amendment’s Due Process Clause. See id.
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enlightened opinion and right conduct on the part of the citizens of a
democracy.283
What is intriguing about this opinion is Roberts’s apparent
suggestion that the right of religious free exercise is not simply
relevant for the religionist who wishes to espouse her faith.
According to Roberts, religious expression can also profit the
audience: “But the people of this nation have ordained in the
light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of the
citizens of a democracy.”284 Here, Roberts seems to suggest that
religious expression goes beyond being merely tolerated as an
inevitable, if quirky, anomaly in a predominantly liberal
secular culture.285 Rather, Roberts emphasizes the positive
impact of religious expression by alluding to what I have called
the justification from truth.
A similar application of the justification from truth to
religious expression appears in Marsh v. Alabama.286 In Marsh,
a Jehovah’s Witness sought to distribute religious literature in
a company town named Chickasaw.287 The stores in the town
had posted the following sign: “This Is Private Property, and
Without Written Permission, No Street, or Horse Vendor,
Agent or Solicitation of Any Kind Will Be Permitted.”288 After
the Jehovah’s Witnesses refused to comply with this sign, they
were arrested for violating a state statute that made “it a crime
to enter or remain on the premises of another after having been
warned not to do so.”289 The Jehovah’s Witnesses eventually
appealed their case to the Supreme Court.290 Justice Black for
the Court phrased the issue in a way that alluded to his
reliance on the justification from truth. He wrote, “Our
question then narrows down to this: Can those people who live
in or come to Chickasaw be denied freedom of press and
religion simply because a single company has legal title to all
the town?”291 Tellingly, Black located the right of religious free
283
284
285
286
287
288
289
290
291
Cantwell, 310 U.S. at 311.
Id. at 310.
So bemoans Stephen Carter. See CARTER, supra note 134, at 21-22.
326 U.S. 501, 508-09 (1946).
Id. at 502.
Id. at 503.
Id. at 503-04.
Id. at 503.
Id. at 505 (emphasis added).
2007]
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exercise not just in the speaker but also in the audience, and
thus implied that the audience has a right to hear and read
religious expression, including a diversity of such expression.
Black made this assumption explicit later in his opinion. After
rejecting the arrests as violative of the right of free exercise, he
wrote:
Many people in the United States live in company-owned towns.
These people, just as residents of municipalities, are free citizens of
their State and country. Just as all other citizens they must make
decisions which affect the welfare of community and nation. To act
as good citizens they must be informed. In order to enable them to be
properly informed their information must be uncensored.292
Just as Justice Roberts in Cantwell explained that religious
expression is necessary for “citizens of a democracy” to form
“enlightened opinions,” Black reasoned that religious
expression is important in order for people “to act as good
citizens” who are “informed.”293 Cases like this involving
religious proselytizing have marshaled some version of the
justification from truth, although without elaborating its logic
and foundations.294 But what should we make of those cases
that do not involve proselytizing? I take them up next.
B.
Non-Proselytizing and No Intent to Persuade
The previous discussion might lead one to believe that
the justification from truth is inappropriate for speech that
does not deliberately seek to proselytize. Indeed, all of the
political speech and commercial speech cases that I have
discussed involved speakers who were deliberately trying to
persuade others through speeches, leaflets, and the like. Yet, as
I argue later, even if someone has no intent to persuade others,
her speech or expression can inform an audience and stimulate
deliberation. Therefore, the justification from truth should be
applied to these examples as well.
When speakers have not deliberately sought to
communicate a message to others, the Supreme Court, if it
292
Id. at 508.
Id.
294
See, e.g., Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620,
632 (1980) (“Soliciting financial support is undoubtedly subject to reasonable
regulation but the latter must be undertaken with due regard for the reality that
solicitation is characteristically intertwined with informative and perhaps persuasive
speech seeking support for particular causes or for particular views on economic,
political, or social issues . . . .”).
293
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wishes to protect the expression, might be tempted to apply
what I call the justification from conscience. According to this
justification, the Court protects the First Amendment rights of
a speaker so that she may be faithful to her conscience.295 An
example of such a speaker is found in Henry David Thoreau.
Thoreau urged people to accept jail confinement rather than
underwrite through their taxes a government that sanctions
slavery:
I know this well, that if one thousand, if one hundred, if ten men
whom I could name,—if ten honest men only,—ay, if one HONEST
man, in this State of Massachusetts, ceasing to hold slaves, were to
[refuse to pay his taxes] and be locked up in the county jail therefore,
it would be the abolition of slavery in America. For it matters not
how small the beginning may seem to be: what is once well done is
done forever.296
Here, the act of civil disobedience is performed not primarily to
benefit the community, for one man’s lone decision to serve jail
time hardly signals “the abolition of slavery in America.”
Rather, the dramatic gesture is meant to cleanse one’s
conscience.297 It is an act to demonstrate both to the community
and to one’s self what one is really made of. The speech act is
thus not simply expressive but also affirmative of one’s moral
conscience.
A similar understanding regarding the significance of
speech acts informs the Supreme Court’s opinion in Cohen v.
California.298 There, the Court reversed the prosecution of one
Robert Cohen who violated a disturbance of the peace statute
for wearing in a Los Angeles courthouse a jacket emblazoned
with the words “Fuck the Draft.”299 Justice Harlan for the Court
reasoned that the First Amendment protected Cohen’s
expression, and part of his justification stemmed from the view
that Cohen’s message contained “inexpressible emotions.”300 In
thus characterizing Cohen’s speech, Harlan did not appear to
regard the speech as trying to convey a meaning to an
audience, for the emotion in Cohen’s speech was said to be
295
See supra note 11 (2d paragraph).
Henry David Thoreau, Civil Disobedience, in COLLECTED ESSAYS AND
POEMS 203, 212 (Elizabeth Hall Witherell ed., Library of America 2001) (1849).
297
For related discussion, see HANNAH ARENDT, CRISES OF THE REPUBLIC 5868 (1972).
298
403 U.S. 15 (1971).
299
Id. at 16.
300
Id. at 26.
296
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“inexpressible.” Pregnant with inexpressible emotions, the
speech was better understood as trying to affirm the nonverbal
passions of Cohen’s conscience, and Harlan’s opinion is best
interpreted as an attempt to make legal space for such
affirmation.
But there is an important ambivalence that complicates
the assumption that Cohen is merely a case about affirming
one’s conscience. Harlan wrote that Cohen’s speech also
involved a “communicative function” and his profanity might
have been “the more important element of the overall message
sought to be communicated.”301 Furthermore, Harlan stated
that the right of free speech is “designed and intended to
remove governmental restraints from the arena of public
discussion . . . .”302 This sort of conceptual ambivalence is
reproduced in other examples involving political speech that
are partially underwritten by the justification from conscience.
Consider Thoreau’s decision to go to jail rather than to
pay taxes that would indirectly support slavery. As I have
suggested, his jail time could not, as he claimed, amount to “the
abolition of slavery in America” and is better understood as an
act of moral self-fulfillment, a cleansing of his conscience. But
it was more than that. For Thoreau attempted to justify, not
simply to himself, but to others, his refusal to pay taxes, and he
attempted to urge other men to follow his lead as a means of
asserting their morally informed manhood against an evil
state. That Thoreau’s rhetoric is sometimes shrill and
indignant must not obscure his desire to urge others to political
action.303
301
Id. at 25-26 (citing Baumgartner v. United States, 322 U.S. 665, 673-74
(1944)).
302
Id. at 24.
An important reason why political speech tends to resist classification as
nothing other than the affirmation of one’s conscience is because politics is not
conventionally understood as an enterprise that involves a single individual, nor one
where the value of expression resides solely in the lone individual. Politics necessarily
involves living and working with others, as suggested by its definition. The Oxford
English Dictionary defines “political” as follows: “Of, belonging, or pertaining to the
state or body of citizens, its government and policy . . . .” 12 OXFORD ENGLISH
DICTIONARY, supra note 24, at 32. Also, an erstwhile definition of “politics” is given as
the “public or social ethics, that branch of moral philosophy dealing with the state or
social organism as a whole (obs.).” Id. These descriptions suggest an association with
others, and hence a working together with them.
This concept is captured well in Aristotle’s observation that “man is by
nature a political animal,” meaning that the human being by nature desires to live
with others. ARISTOTLE, THE POLITICS 37 (Carnes Lord trans., Univ. of Chi. Press,
1984). For one “who is incapable of participating nor who is in need of nothing through
being self-sufficient is no part of a city, and so is either a beast or a god.” Id. Tellingly,
303
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In the context of religious acts, the Court has sometimes
justified the right of religious expression in terms of the
justification from conscience. Consider once more Thomas v.
Review Board of the Indiana Employment Security Division.304
While factually quite different from the profanity of Cohen, the
religious dimension in Thomas was regarded by the Court as
presenting a similar question of conscience. One Eddie Thomas
was a foundry worker in Indiana who was transferred from
making steel sheeting to making tank gun turrets.305 As a
Jehovah’s Witness, he refused to participate in activities that
would contribute to war. Thomas quit his job and sought
unemployment benefits.306 The Indiana Supreme Court refused
to permit the dispensing of such benefits because “‘although
the claimant’s reasons for quitting were described as religious,
it was unclear what his belief was, and what the religious basis
of his belief was.’”307 The confusion or doubt is quite excusable,
for how could producing steel sheeting that could be added to a
tank’s armor differ morally from building its turret in terms of
leading to its construction and hence its availability for
assault? Besides, the Indiana Supreme Court could point to
another Jehovah’s Witness who had no qualms about making
turrets.308 Still, on appeal, Chief Justice Burger, writing for the
United States Supreme Court, reversed the Indiana Supreme
Court, stating that
Thomas drew a line, and it is not for us to say that the line he drew
was an unreasonable one. Courts should not undertake to dissect
religious beliefs because the believer admits that he is “struggling”
with his position or because his beliefs are not articulated with the
clarity and precision that a more sophisticated person might
employ.309
Aristotle points to “speech” as the defining characteristic of man’s status as a political
animal, because “man alone among the animals has speech,” and it is speech that
permits us to communicate to each other the “advantageous and the harmful, and
hence also the just and the unjust.” See id. What makes speech political here is its
capacity to communicate ideas to others. This is not to say that your criticizing the
president while you are on a deserted island is not political speech; in terms of its
content, it obviously is. It is instead to suggest that we tend to value political speech
because such speech can persuade and inform an audience.
304
450 U.S. 707 (1981).
305
Id. at 709.
306
Id. at 710.
307
Id. at 741 (quoting Thomas v. Review Bd. of the Ind. Employment Sec.
Div., 391 N.E.2d 1127, 1133 (Ind. 1979)).
308
Id. at 715.
309
Id.
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Here, Chief Justice Burger does not justify Thomas’s
expression as constitutionally protected because it is likely to
persuade or cause to reflect anyone who witnesses it; Burger
thus avoids the justification from truth. Burger instead
justifies his decision by turning to the justification from
conscience. He seems to imply that no one—including other
Jehovah’s Witnesses—would necessarily even understand
Thomas’s actions as coherent. The action is constitutionally
protected, it seems, largely because it is the way that Thomas
himself has come to terms with his religion.310 It seems
instinctively right to justify religious expression in terms of the
justification from conscience.
On the other hand, there is something curious about
justifying the right of religious expression exclusively in terms
of conscience and not the justification from truth. For religious
speech, like political speech, can inform and persuade its
audience. And here we need not just invoke the familiar idea of
religious proselytism. We can also imagine how the audience
can learn from the religious expression of someone whose
primary motivation is not to educate others. Recall that Chief
Justice Burger justified Thomas’s right of religious expression
as a means of being faithful to the latter’s religious conscience,
but he could have just as well invoked the justification from
truth. While Burger conceded that Thomas’s refusal might not
have been necessitated by his religion and might have been
wanting in coherence, the message was nonetheless clear in its
general meaning: helping to build military weapons violates
the Jehovah’s Witness commitment to pacifism and it is better
to lose one’s job than to betray God’s wishes. Even if Thomas
did not intend to inform or persuade others, it is possible for
some to infer and reflect upon the meaning of his resistance.
People may be inspired—or angered—by Thomas’s religious
expression, and they may come to realize, for example, that
they are insufficiently serious about their own religions, or that
they should not be zealous like Thomas. Either way, people
might find reflecting about Thomas’s religious expression to be
theoretically more rewarding and intense than the sort of
political speech and commercial speech that is underwritten by
310
This justification must logically depend on the assumption that Thomas’s
religious expression is a means of being faithful to his conscience, and that it does not
stem from a desire to avoid strenuous or dangerous activity or to avoid being under the
control of an overbearing supervisor.
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the justification from truth.311 Indeed, it seems inaccurate to
classify Thomas’s expression as merely religious, as if religious
speech were somehow concerned only with religious topics.
Thomas’s speech is also pregnant with political meaning: he
would prefer to lose his job than to do the government’s
military bidding. It is therefore not entirely clear why the
Court justified Thomas’s expression as simply an exercise in
religious conscience. Furthermore, similar to political speech,
Thomas’s expression is fully capable of helping the audience to
arrive at some conclusion about truth, namely, that statesponsored violence is unacceptable to those who take seriously
their religiously informed pacifism.
A similar kind of inference can be derived from West
Virginia State Board of Education v. Barnette, a case where the
Court recognized religious speech as protected by both the right
of religious expression and the right of free speech.312 As in
Thomas, the Court relied on the justification from conscience,
not truth, but the justification from truth would have been
perfectly serviceable. Like Thomas, Barnette involved
religionists who sought to be faithful to their consciences. The
West Virginia State Board of Education had passed a
resolution that required students and teachers to salute the
American flag as a regular part of classroom business.313 This
rule conflicted with the religious convictions of the Barnette
children who were Jehovah’s Witnesses.314
Justice
Jackson
for
the
Court
rejected
as
unconstitutional the compulsory flag salute, reasoning that it
unjustifiably coerced the Jehovah’s Witnesses into doing
something that contradicted their religious consciences. The
required salute, Jackson announced, “invades the sphere of
intellect and spirit which it is the purpose of the First
311
Imagine viewing a series of dull political sound bites for a series of
indistinguishable candidates or, worse, viewing a steady stream of commercials for five
different kinds of light beer.
312
Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34 (1943).
313
Id. at 626.
314
The beliefs of the Jehovah’s Witnesses
include a literal version of Exodus, Chapter 20, verses 4 and 5, which says:
“Thou shalt not make unto thee any graven image, or any likeness of
anything that is in heaven above, or that is in the earth beneath, or that is in
the water under the earth; thou shalt not bow down thyself to them nor serve
them.” They consider that the flag is an “image” within this command. For
this reason they refuse to salute it.
Id.
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Amendment to our Constitution to reserve from all official
control.”315 Jackson also proclaimed, “If there is any fixed star
in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein.”316 By
“invading the sphere of intellect and spirit” and by “forcing
citizens to confess” to practices that they find to be sinful, the
compulsory flag salute punishes a commitment to one’s
conscience in two respects: It compels the Jehovah’s Witnesses
to express a meaning which directly violates their religious
consciences and it prohibits them from expressing what they
believe their religious consciences tell them is right.
While the Jehovah’s Witness children may not have
sought to convey any meaning to their classmates or to the
school staff, their refusal was nonetheless clearly expressive: A
close reading of the Bible should preclude responsible
Jehovah’s Witnesses from paying homage to any graven image
of state-sponsored nationalism, and not even the threat of
school expulsion should deter them. Like the case of Eddie
Thomas, even if the Barnette children did not intend to inform
or persuade others, it is possible for some to infer and reflect
upon the meaning of their resistance. Their expression is
relevant to the audience’s process of deliberating about some
truth, namely, that one’s devotion to God must be complete and
is not compatible with an extant devotion to emblems of a
coerced nationalism. Thus the justification from truth could
have persuasively been applied in this case, just as it could
have been applied in many other cases involving nonproselytizing speech.
C.
Public Elementary, Middle, and High Schools
Applying the justification from truth to the religious
expression of the Barnette children, as I did previously, would
seem especially apt given that schools are places that the
Supreme Court has recognized as valuable, and perhaps
uniquely so, for the exchange of diverse ideas and viewpoints.
315
Id. at 642.
Id. Jackson also wrote: “To sustain the compulsory flag salute we are
required to say that a Bill of Rights which guards the individual’s right to speak his
own mind, left it open to public authorities to compel him to utter what is not in his
mind.” Id. at 634.
316
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In Ambach v. Norwick, the Supreme Court spoke of “the public
schools as inculcating fundamental values necessary to the
maintenance of a democratic political system . . . .”317 This may
involve recognizing public schools “as an ‘assimilative force’ by
which diverse and conflicting elements in our society are
brought together on a broad but common ground.”318 And in
Bethel School District v. Fraser, the Court similarly observed
that the public schools should aspire to teach the “fundamental
values of ‘habits and manners of civility’ essential to a
democratic society [which] must, of course, include tolerance of
divergent political and religious views, even when the views
expressed may be unpopular.”319
But if the justification from truth were to be employed
to defend a government law that requires public school
students to learn about religious diversity, how deeply should
the justification cut against a right to resist such exposure?
The answer to this question obviously depends on the facts.
Mozert v. Hawkins County Public Schools provides a usefully
heuristic example where the justification would survive
scrutiny.320 In 1983, the Hawkins County School Board in
Tennessee voted to require all students to take “character
education” courses.321 The purpose of the courses was “to help
each student develop positive values and to improve student
conduct as students learn to act in harmony with their positive
values and learn to become good citizens in their school,
community, and society.”322 The school board specifically
intended for the courses to use a textbook published by the
Holt Rinehart company in a manner that instilled critical
reading.323 Vicki Frost agreed that critical reading was
important but argued that her children’s First Amendment
rights of free exercise were being infringed upon by being
required to learn material that was “in violation of their
317
318
Ambach v. Norwick, 441 U.S. 68, 77 (1979).
Id. (citing JOHN DEWEY, DEMOCRACY AND EDUCATION 26 (Macmillan
1929)).
319
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (citing
CHARLES A. BEARD & MARY R. BEARD, A BASIC HISTORY OF THE UNITED STATES 228
(1944)).
320
Mozert v. Hawkins County Pub. Sch., 827 F.2d 1058, 1063-64 (6th Cir.
1987).
321
Id. at 1060.
322
TENN. CODE ANN. § 49-6-1007 (Supp. 1986).
323
Mozert, 827 F.2d at 1060.
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religious beliefs and convictions.”324 As a born-again Christian,
Frost condemned the Holt textbook mainly because it contained
“stories that develop ‘a religious tolerance that all religions are
merely different roads to God.’”325 She announced, “We cannot
be tolerant in that we accept other religious views on an equal
basis with ours.”326 Hence, Frost essentially rejected the
justification from truth as inapplicable in this instance. She
insisted that she and her children were already in possession of
the truth about religion and a diversity of competing religious
views would only confuse and subvert her children.
Chief Judge Lively for the Sixth Circuit Court of
Appeals did not agree and he provided persuasive reasons for
his conclusion. He reasoned that the Supreme Court’s reference
to the “tolerance of divergent . . . religious views” in Bethel
School District was a “civil tolerance, not a religious one.”327 As
such, the tolerance taught by the teachers in the Hawkins
County School District “does not require a person to accept any
other religion as the equal of the one to which that person
adheres.”328 All that it requires is “a recognition that in a
pluralistic society we must ‘live and let live.’”329 Lively added
that if “the Hawkins County schools had required the plaintiff
students either to believe or say they believe that ‘all religions
are merely different roads to God,’ this would be a different
case.”330 But there was no evidence to suggest that the school
compelled such affirmation.331 Rather, Chief Judge Lively
stated that the “only conduct compelled by the defendants was
reading and discussing the material in the Holt series, and
hearing other students’ interpretations of those materials,” and
it was this “exposure to which the plaintiffs objected.”332 In
other words, the Frost children were never coerced to accept
the “truth” on offer in the textbook. They were theoretically
free to criticize whatever ostensive truth was brought before
324
Id. at 1061.
Id. at 1068.
326
Id. at 1069.
327
Id.
328
Id.
329
Id.
330
Id.
331
The Court noted with regard to Frost’s concern “that she did not want her
children to make critical judgments and exercise choices in areas where the Bible
provides the answer. There is no evidence that any child in the Hawkins County
schools was required to make such judgments.” Id. at 1069.
332
Id.
325
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them. The justification from truth, then, is most appropriate
when it invites perusal over different options, not when it
compels affirmation of those options.
1. When the Majority Coerces the Minority
Lest my rendering of Mozert appear to evince a hidden
sympathy for the state, I want to clarify that the justification
from truth also prohibits the state from infringing on people’s
opportunities to retain the psychological resources necessary
for ascertaining some truth about religion. In contrast to
Mozert, Lee v. Weisman333 represents a case in which the
justification from truth would be insufficient to overcome a
student’s resistance to religious expression. Recall that the
principal of a public middle school had asked a rabbi to give a
nondenominational prayer during a graduation ceremony.334
Though the school had sought to convey a feeling of
“inclusiveness and sensitivity” through the prayer, Justice
Kennedy rejected the prayer as a violation of the
Establishment Clause. For in “this atmosphere the stateimposed character of an invocation and benediction by clergy
selected by the school combine to make the prayer a statesanctioned religious exercise in which the student was left with
no alternative but to submit.”335 As stated before, the
justification from truth is most appropriate in those settings
where the audience is being challenged to consider competing
or alternative viewpoints and where the audience feels
comfortable enough to deliberate about those viewpoints.336 In
Mozert, the audience, including the Frost children, had access
to a diversity of viewpoints about religion, especially those
viewpoints that would have been considered culturally outside
the norm for many children reared in a place like Hawkins
County, Tennessee,337 and the students were permitted and, at
least in theory, even invited to challenge those viewpoints.
The facts of Lee are different, however. First, unlike the
educational enterprise of Mozert, the school prayer in Lee was
333
505 U.S. 577 (1992).
See supra notes 270-274 and accompanying text.
335
Lee, 505 U.S. at 597.
336
See supra Part I.
337
Hawkins County had a population of 53,563 in 2000, of which 60% was
rural and only 3.3% comprised racial minorities. Hawkins County Industrial Board,
http://www.hawkinscounty.org/development/population.html (last visited Aug. 25,
2007).
334
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primarily, if not solely, a ceremonial event meant to enshrine a
set of religious truths. The prayer was comprised of an
“Invocation” and a “Benediction,” and the language in both
gives away the ceremonial nature of the prayer.338 Even the
part of the prayer that recognizes the importance of protecting
diversity, including presumably atheism and agnosticism, is
regarded as the product of God’s beneficence: “For the legacy of
America where diversity is celebrated and the rights of
minorities are protected, we thank You.”339 To be sure, the
nature of the religious expression in Thomas and Barnette is
similar to the prayer in Lee in that all three never consciously
sought to educate the public. However, unlike Lee, the
expressions in Thomas and Barnette were those of a religious
minority. Whereas the prayer in Lee had the support of the
school and the majority of the student body and the parents,
the expressions in Thomas and Barnette provoked
bewilderment and dismissal in the former and an angry
intolerance in the latter.340 Furthermore, the Jehovah’s
Witnesses in both cases provoked such responses precisely
because they refused to acquiesce to the wishes of the majority
and the state. Perhaps most importantly, whereas those who
belonged to the mainstream religions would not have felt
coerced to believe or disbelieve the meaning of the Jehovah’s
Witness expressions in Thomas and Barnette, those nonbelievers in Lee would have been much more likely to have felt
coerced into outwardly participating in the religious ceremony.
This conclusion tends to distinguish my formulation of
the justification from truth from that of Professor Marshall,
who is one of the few professors to have applied the
justification to the religion clauses. He argues:
[A] search for truth rationale would undercut the religious claims of
some groups that they have a constitutional right to be insulated
from societal forces that affect all other ideologies. Specifically, it
would suggest that . . . the fundamentalist claim in Mozert v.
Hawkins County Public Schools [is] seriously weakened if not
entirely misplaced. [For] the religious claim being advanced was that
there was a free exercise right not to be exposed to ideas that would
purportedly threaten the integrity of the religious community. The
338
339
340
See supra note 271 and accompanying text.
For the full text, see supra note 271.
See supra Part VI.B.
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validity of this argument would be very much in doubt if the Religion
Clauses were premised on a search for truth rationale.341
Under my approach, what makes Vicki Frost’s claim in Mozert
untenable is not that it rests on a desire to be immune from
“ideas that would purportedly threaten the integrity of the
religious community.” The claim is untenable for other reasons:
first, because it rejects participation in a setting where
religionists are required to consider a diversity of viewpoints
about religion; and, second, because the setting in which they
are so required lasts for the duration of a single class period in
a public school that is formally dedicated to broadening the
social outlook of its students. Neither of these two factors was
present in Lee. Instead, Lee did the opposite in consolidating
familiar religious perspectives that were prepared by a
mainstream religious coalition of Christians and Jews.342 And
the religious truths awaiting announcement in the school’s
Invocation and Benediction were not introduced in a setting of
tentative inquiry like in Mozert but were meant to be
consecrated through collective ritual.
For similar reasons, Bowers v. Hardwick343 and Harris v.
344
McRae also cannot be underwritten by the justification from
truth. Professor Marshall writes that
the search for truth rationale supports the Supreme Court’s
conclusion in cases such as Bowers v. Hardwick and Harris v. McRae
that there is no constitutional violation in prohibitions against
sodomy or abortion, respectively, solely because those prohibitions
reflect religious principles. If there are to be limitations on the role of
religion in the public sphere, those restrictions must be based on
something other than the substance of religious ideas.345
Quite true, but those restrictions would seem to inhere in the
justification from truth itself, or at least the deliberative
version that I defend. That is, the logic of the justification from
truth, as I have defined it, contains normative restrictions on
what forms of actions the state may express: actions that
promote deliberation are justified, while those that undermine
it are not. Bowers and Harris, like Lee, represent cases where
the state has not produced the effect of inviting its audience to
341
342
343
344
345
Marshall, supra note 12, at 267-68 (footnotes omitted).
Lee, 505 U.S. at 581.
478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
448 U.S. 297 (1980).
Marshall, supra note 12, at 266-67 (footnotes omitted).
2007]
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deliberate about a diversity of viewpoints or has no interest in
doing so. Rather, the state in both cases was instead
determined to transform its religious preferences into the force
of legal sanctions.
In Bowers, Georgia had passed an anti-sodomy statute
that its attorney general acknowledged would be applied only
to homosexuals.346 Concurring, Chief Justice Burger upheld the
law as speaking to our traditional Judeo-Christian abhorrence
of homosexuality.347 If the Georgia statute were indeed
prompted by such dread, it could not in my view find support
from the justification from truth. For, like the school-mandated
prayer in Lee, the anti-sodomy statute was not meant to
introduce a provocative minority perspective that would induce
public deliberation. The statute was meant to stifle such
deliberation by simply asserting the rightness of its own
religious preferences, and, worse, it wielded the threat of
criminal conviction and public humiliation against those who
refused to obey it.
A similar dynamic was at play in Harris. There,
Congress passed a law prohibiting the federal government from
funding abortions except to save the life of the mother or for
victims of rape or incest.348 If the law were passed to further a
Christian condemnation of abortion, the statute would not be
defensible under my version of the justification from truth.
Analogous to the state’s conduct in Lee and Bowers, the state in
Harris had little, if any, desire to provoke deliberation about
some minority perspective, nor can we seriously assume that
such deliberation was the statute’s probable effect. The state’s
aims are better described as principally administrative in
placing potentially debilitating obstacles before those who seek
abortions. Thus, the justification from truth should not be
applied in all cases in which speech is religious, especially
when the majority is imposing its views on the minority.
2. A Limited Diversity: Why Creation Science Can
Be Excluded
I have argued for a diversity of religious viewpoints, but
a boundless diversity cannot be managed in practice because
346
347
348
926 (1979)).
Bowers, 478 U.S. at 201.
Id. at 196-97 (Burger, J., concurring).
Harris, 448 U.S. 297, 302 (1980) (citing Pub. L. No. 96-123, § 109, 93 Stat.
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there are not enough resources to accommodate them all. There
are some viewpoints that must be excluded or given low
priority even if they represent minority perspectives. On a
certain level of abstraction, the process of ranking viewpoints
is, I suppose, normatively inconsistent with the project of
encouraging a diversity of viewpoints that I have espoused thus
far. Yet such tension need not condemn us to utter confusion,
either. The Supreme Court illustrates how one can embrace a
diversity of viewpoints without affording legal protection for
every single viewpoint. Even under the justification from truth
as applied to secular speech, the Court has denied
constitutional protection, for example, to fighting words,349
libel,350 and obscenity.351 In each of these settings, the Court has
stated that the speech, while bursting with meaning, possesses
the sort of meaning that is incompatible with the
administrative and normative priorities of civil society.352
Like the Court, I can provide reasons for excluding some
viewpoints and, thus, preferring one conception of diversity
over another. I can illustrate this practice by trying to justify
the exclusion of creation science and intelligent design as
meaningful scientific theories from public high schools, middle
schools, and elementary schools. Whereas evolutionists believe
that humans evolved from natural causes, advocates for
creation science and intelligent design argue that some
intelligent Being that was anterior to the existence of anything
is responsible for the creation and evolution of humans.353
349
Chaplinsky v. New Hampshire, 315 U.S. 568, 568 (1942).
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (“[T]here is no
constitutional value in false statements of fact.”).
351
Miller v. California, 413 U.S. 15, 15 (1973).
352
Justice Murphy alluded to a consonant theme in Chaplinsky:
350
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or “fighting” words-those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.
315 U.S. at 571-72 (footnotes omitted).
353
Duane T. Gish, an advocate for creation science, juxtaposes his position
with that of evolutionists: “Creation theory postulates . . . that all basic animal and
plant types (the created kinds) were brought into being by the acts of a preexisting
Being by means of special processes that are not operative today.” Duane T. Gish,
Creation, Evolution, and the Historical Evidence, in BUT IS IT SCIENCE?, supra note
108, at 266, 266. William Dembski, a believer in intelligent design, also subscribes to a
similar view: “From observable features of the natural world, intelligent design infers
to an intelligence responsible for those features. The world contains events, objects and
structures that exhaust the explanatory resources of undirected natural causes and
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85
Creation scientists tend to differ from believers in intelligent
design in that the former sometimes assert that science can
support a literal interpretation of the Bible,354 whereas the
latter claim more guardedly that science points to an
intelligent Being, whose aims or values are unknowable, as the
cause of the universe.355 I dwell on their similarities, though,
because there is a fatal flaw in their common premise that
science points to a Higher Being as the creator of our known
universe and everything in it.
To return to the Article’s theme, I want to argue in this
section that creation science can be rejected on the grounds of
that can be adequately explained only by recourse to intelligent causes.” WILLIAM A.
DEMBSKI, INTELLIGENT DESIGN: THE BRIDGE BETWEEN SCIENCE AND THEOLOGY 107
(1999).
354
Henry M. Morris, the Director of the Institute for Creation Research, is a
good example. He states: “The Bible is the Word of God, absolutely inerrant and
verbally inspired . . . The Bible gives us the revelation we need, and it will be found
that all the known facts of science or history can be very satisfactorily understood
within this Biblical framework.” HENRY M. MORRIS, EVOLUTION AND THE MODERN
CHRISTIAN 55 (1967), quoted in Joel Cracraft, The Scientific Response to Creationism,
in CREATIONISM, SCIENCE, AND THE LAW: THE ARKANSAS CASE 138, 139 (Marcel
Chotkowski La Follette ed., 1983). Elsewhere, Morris writes that creation science
supports the Bible’s account of Genesis and Noah’s Flood. SCIENTIFIC CREATIONISM
205-08, 213 (Henry M. Morris ed., 1974).
355
William Dembski, a proponent of intelligent design, writes:
In the past design was a plausible but underdeveloped philosophical
intuition. Now it is a robust program of scientific research. Consequently
intelligent design is under no obligation to speculate about the nature, moral
character or purposes of any designing intelligence it happens to infer. (Here
rather is a task for the theologian—to connect the intelligence inferred by the
design theorist with the God of Scripture.) Indeed this is one of the great
strengths of intelligent design, that it distinguishes design from purpose. We
can know that something is designed without knowing the ultimate or even
proximate purpose for which it was designed.
DEMBSKI, supra note 353, at 107-08. Still, in other places, Dembski clearly evinces his
prioritization of Christianity, and thus implies that his “scientific” endeavors are
meant less to find the truth, whatever it may be, than to vindicate his religious faith:
If we take seriously the word-flesh Christology of Chalcedon (i.e., the doctrine
that Christ is fully human and fully divine) and view Christ as the telos
toward which God is drawing the whole of creation, then any view of the
sciences that leaves Christ out of the picture must be seen as fundamentally
deficient.
Id. at 206 (footnotes omitted). And the self-styled creation scientist Henry Morris
sometimes poses like a more dispassionate advocate of intelligent design when he
writes that the purpose of “scientific creationism” “is, first, to treat all of the more
pertinent aspects of the subject of origins and to do this solely on a scientific basis, with
no references to the Bible or to religious doctrine.” SCIENTIFIC CREATIONISM, supra note
354, at 3. This is the sort of promiscuous affinity between intelligent design and
creation science that leads me to believe that, notwithstanding the differences in their
names, their advocates are often people who share more or less the same aspirations
and beliefs about their work.
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employing a diversity of viewpoints to discover the truth. For it
is my contention that creation science fails to contribute to a
meaningful diversity of views in public schools insofar as it is
presented as a legitimate or potentially legitimate statement
about “science.” As I will show, creation science, like libel, has
the tendency to mislead the audience with false statements
because it styles itself a science but contains none of the
standard indicia of science. In this way, just as we may exclude
libel from constitutional protection even though it may
contribute to a diversity of viewpoints, so we may also exclude
creation science from being taught in public elementary,
middle, and high schools.
I can begin to explain my argument by turning to
McLean v. Arkansas Board of Education.356 In 1981, Arkansas
passed the “Balanced Treatment for Creation-Science and
Evolution-Science Act.”357 As its name suggests, the Act
appeared to make a formal bid for a diversity of viewpoints—a
“balanced treatment” of opposing perspectives—an assumption
reinforced by its professed aims. In solemnly progressive tones,
the statute is studded with the tropes of innocent intellectual
curiosity. It makes reference to respect for different values,
aspirations to epistemic neutrality, and even a desire for the
“search for truth”:
This Legislature enacts this Act for public schools [with] the purpose
of protecting academic freedom for students’ differing values and
beliefs; ensuring neutrality toward students’ diverse religious
convictions; ensuring freedom of religious exercise for students and
their parents; guaranteeing freedom of belief and speech for
students; preventing establishment of Theologically Liberal,
Humanist, Nontheist, or Atheist religions; preventing discrimination
against students on the basis of their personal beliefs concerning
creation and evolution; and assisting students in their search for
truth. This Legislature does not have the purpose of causing
instruction in religious concepts or making an establishment of
religion.358
Section 1 of the Act continues this endorsement of
diversity and balance of viewpoints, requiring that public
schools give “balanced treatment” to both theories of
evolution.359 Such language would imply that the Arkansas
356
529 F. Supp. 1255 (E.D. Ark. 1982).
Balanced Treatment for Creation-Science and Evolution-Science Act, ARK.
CODE ANN. § 80-1663 (Supp. 1981).
358
Id.
359
The law reads:
357
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DELIBERATING THE DIVINE
87
legislature was merely interested in doing what I have sought
to do throughout the Article: urge the merits of deliberation
about a diversity of viewpoints. But upon closer inspection this
conclusion is not quite right. For the statute misleadingly
ascribes the characteristics of that which is properly called
science to “creation science.” So declares section 7(j):
Creation-science is an alternative scientific model of origins and can
be presented from a strictly scientific standpoint without any
religious doctrine just as evolution-science can, because there are
scientists who conclude that scientific data best support creationscience and because scientific evidences and inferences have been
presented for creation-science.360
Section 4(a) outlined the scientific qualities of creation
science:
“Creation-science” means the scientific evidences for creation and
inferences from those scientific evidences. Creation-science includes
the scientific evidences and related inferences that indicate: (1)
Sudden creation of the universe, energy, and life from nothing . . . .361
To assess the scientific merits of this claim, Judge Overton for
the district court first provided a definition of science by which
they could be compared. After deliberating the expert
testimony, he summarized “the essential characteristics of
science”:
(1) It is guided by natural law; (2) It has to be explanatory by
reference to natural law; (3) It is testable against the empirical
world; (4) Its conclusions are tentative, i.e., are not necessarily the
final word; and (5) It is falsifiable.362
The claims by creation science in McLean could not comport
with these requirements. Most damagingly, creation science
could not be justified as based on “natural law.” For the
Arkansas statute insists in section 4(a)(1) that the “[s]udden
Public schools within this State shall give balanced treatment to creationscience and to evolution-science. Balanced treatment to these two models
shall be given in classroom lectures taken as a whole for each course, in
textbook materials taken as a whole for each course, in library materials
taken as a whole for the sciences and taken as a whole for the humanities,
and in other educational programs in public schools, to the extent that such
lectures, textbooks, library materials, or educational programs deal in any
way with the subject of the origin of man, life, the earth, or the universe.
Id.
360
361
362
Id.
Id.
McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1267 (E.D. Ark. 1982).
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creation of the universe, energy, and life” derives from
“nothing,” and thus insists too that a force that is anterior to
nature itself has created human beings and the universe which
they know. What the logic of creation science relies on, then, is
an appeal to divine intervention, the only force that can create
the universe out of “nothing.”363 As such, there is no way to test
the conclusion that God created the universe since there is
literally “nothing” to test as a proposition about physical
matter.364 Therefore, creation science, unlike conventional
science, is not falsifiable.365 For the same reason, it is not
363
Judge Overton explained that creation science “is not science because it
depends upon a supernatural intervention which is not guided by natural law. It is not
explanatory by reference to natural law, is not testable and is not falsifiable.” Id.
364
As Judge Overton stated: “If the unifying idea of supernatural creation by
God is removed from Section 4, the remaining parts of the section explain nothing and
are meaningless assertions.” Id.
365
The zoologist Stephen Jay Gould, a trial witness against Arkansas in
MacLean, delivered an especially keen critique of creation science:
“Scientific creationism” is a self-contradictory, nonsense phrase precisely
because it cannot be falsified. I can envision observations and experiments
that would disprove any evolutionary theory I know, but I cannot imagine
what potential data could lead creationists to abandon their beliefs.
Unbeatable systems are dogma, not science. Lest I seem harsh or rhetorical, I
quote creationism’s leading intellectual. Duane Gish, Ph.D., from his recent
(1978) book, Evolution? The Fossils Say No! “By creation we mean the
bringing into being by a supernatural Creator of the basic kinds of plants and
animals by the process of sudden, or fiat, creation. We do not know how the
Creator created, what processes He used, for He used processes which are not
now operating anywhere in the natural universe [Gish’s italics]. This is why
we refer to creation as special creation. We cannot discover by scientific
investigations anything about the creative processes used by the Creator.”
Pray tell, Dr. Gish, in the light of your last sentence, what then is “scientific”
creationism?
STEPHEN JAY GOULD, HEN’S TEETH AND HORSE’S TOES, 253-62 (1983) (quotation on
256-57); Joel Cracraft, a science adviser to the American Civil Liberties Union who
challenged the Arkansas statute describes the operations of the statute as follows:
No longer can science construct explanatory hypotheses about events having
a time dimension—to creationists, science must study only the observable,
only that which can be verified in a laboratory experiment. No longer must
scientific ideas, or conjectures, be subject to criticism and eventual rejection—
some statements, such as those derived from revelation, are not only to be
considered scientific in their content, but also impervious to criticism.
Joel Cracraft, The Scientific Response to Creationism, in CREATIONISM, SCIENCE, AND
THE LAW: THE ARKANSAS CASE 138, 139 (Marcel C. La Follette ed., 1983). The
philosopher of science Michael Ruse was an expert witness against Arkansas. During
cross examination, Ruse responded:
First, and most importantly, creation science necessarily looks to the
supernatural acts of a Creator. According to creation-science theory, the
Creator has intervened in supernatural ways using supernatural forces.
Moreover, because the supernatural forces are the acts of a Creator, that is,
the acts of God, they are not subject to scientific investigation or
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89
tentative in its conclusions, as is science, but instead provides
that God is the final word.366 Creation science can thus be
rejected as something that students should learn in public
schools in order to enrich their knowledge of science. This is not
to suggest that there is no cultural or religious value to
creationism or that those who believe it are necessarily wrong.
Rather, it is to suggest that an inherently religious account of
the origins of the universe should be regarded as founded on its
unique epistemic resources of faith, not empirical science. Or,
to state the objection in terms of my discussion of scientific
paradigms,367 creation science attempts to conscript the
paradigm of science to make sense of claims that are inherently
resistant to the logic of science.368
understanding. This nonscientific aspect of creation science emerges quite
clearly from the creation-science literature I have read.
Michael Ruse, Witness Testimony Sheet, McLean v. Arkansas, in BUT IS IT SCIENCE?,
supra note 108, at 287, 304. Ruse has made similar arguments elsewhere. See RUSE,
DARWINISM DEFENDED, supra note 108, at 322 (arguing that the reliance on miracles
by creation scientists “lie[s] outside of science, which by definition deals only with the
natural, the repeatable, that which is governed by law”). For an argument about how
Darwinism provides a heuristic of falsifiability, see Sir Karl Popper, Darwinism as a
Metaphysical Research Program, in BUT IS IT SCIENCE?, supra note 108, at 144, 145-47.
366
See supra notes 363-365 and accompanying text.
367
See supra notes 113-118 and accompanying text.
368
The theology professor Langdon Gilkey at the University of Chicago, a
witness against Arkansas, explains:
The creation-science “model” is . . . not an example of science at all; it
involves a supra-natural cause, transcendent to the system of finite causes; it
explains in terms of purposes and intentions; and it cites a transcendent,
unique, and unrepeatable—even in principle, uncontrollable—action. It
represents, therefore, logically and linguistically, a re-edition of a familiar
form—that is, “natural theology,” which argues that certain data point
“rationally” to a philosophical/religious conclusion, namely, to the agency of a
divine being.
Second, the creationists fail to distinguish the question of ultimate origins
(Where did it all come from?) from the quite different question of proximate
origins (How did A arise out of B, if it did?). They ignore the (scholastic)
distinction between the primary causality of a First Cause, with which
philosophy or theology might deal, and secondary causality, which is
causality confined to finite factors. Assuming that it is science’s role to deal
with the truth and, therefore, with all of the truth, they conclude that a
scientific explanation of origins must be an exhaustive explanation and must
be inclusive of all possible related factors or causes. If evolution theory deals
with proximate origins, it must also deal with the question of ultimate
origins. If, in this process, evolution theory has left out God, then it must be
asserting that there is no God, or that the divine is in no way the Creator of
the process of secondary causes. At the Arkansas trial, the creationists
therefore interpreted the scientific witnesses’ demurrals that “science does
not raise the question about God at all” as meaning that science rules out the
presence of God in any way.
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The justification from truth, then, need not and, indeed,
cannot accept every expression as equally likely to help the
audience arrive at some truth.
VII.
CONCLUSION
The justification from truth can boast a distinguished
pedigree and its theoretical potential is, in my view, powerful.
It is also, as I have shown, the dominant basis of support in the
Supreme Court for the right of free speech. Curiously, the
justification has gone relatively ignored in the realm of
religious expression. I have tried in this Article to apply the
justification to religious expression, and I have suggested that
by doing so we can arrive at better conclusions about the truth.
Langdon Gilkey, The Creationist Controversy: The Interpretation of Inquiry and Belief,
SCI., TECHNOLOGY, & HUMAN VALUES, Summer 1982, at 67, 68.
Buy, Sell, or Hold?
ANALYST FRAUD FROM ECONOMIC AND
NATURAL LAW PERSPECTIVES
Ronald J. Colombo†
INTRODUCTION
What are the fundamental purposes of U.S. securities
regulation? To foster efficient capital markets? To protect the
individual investor? To promote virtue in the securities
industry? The question is an important one, as its answer
ought to frame the legislative, regulatory, and judicial
responses to the numerous issues and challenges confronting
the field of securities law. By ignoring the full set of
fundamental purposes of securities regulation, we run the risk
of fashioning remedies inconsonant with the regulatory regime
and hence more likely to undermine, rather than promote, a
consistent, coherent approach to securities regulation. This
Article posits that not all the fundamental purposes of U.S.
securities regulation have been honored equally. Moreover, this
Article suggests that a way of recapturing respect for the full
range of aims that gave rise to the U.S. securities laws is to
replace (or at the very least augment) the prevailing analytical
approach employed in securities law thinking (namely, that of
law and economics) with a different approach (namely, that of
natural law theory).
If one looks at the inspiration behind the 1933 and 1934
Securities Acts, one quickly finds that, contrary to popular
belief and the focus of current scholarly wisdom, the promotion
of virtue and the extirpation of vice were central to both the
President’s and Congress’s conceptualization of these acts.
Indeed, it was understood and expected by President Roosevelt
and the 72nd Congress that the promotion of virtue in the
†
Associate Professor of Law, Hofstra University School of Law. I am
grateful for the helpful suggestions and comments provided by Joanna Grossman,
Charles E. Rice, and Robert T. Miller on earlier drafts, and for the research assistance
of Morgan McCord.
91
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securities industry would best serve to protect the individual
investor and resuscitate the capital markets.1
Today, very few understand the securities laws as did
President Roosevelt and Congress in the 1930s. Perhaps the
single most influential reason for the divergence of today’s
understanding of securities regulation and the understanding
of its progenitors is the successful advance of “law and
economics” thinking, which has come to dominate many fields
of study, most especially those concerning economic regulation.
For, under law and economics thinking, the seemingly
subjective concerns of morality and normative values are
displaced by the seemingly objective concerns of economic
reasoning.2
The successful advance of law and economics should not
be surprising given today’s diverse, pluralistic society in which
it is difficult to achieve consensus on arguments that are moral
or normative in nature. 3 For law and economics purports to put
aside those things over which individuals disagree and instead
to focus on those things upon which individuals can agree: that
efficiency should be preferred to inefficiency and that societal
wealth should be maximized.4
Despite the appeal of law and economics, the movement
has had its detractors. One line of criticism levied against it is
that law and economics elevates a societal means (namely,
efficient laws) over more ambitious (and more important)
societal ends. Put differently, law and economics is viewed as
deficient in failing to recognize that law does not exist for its
own sake, but rather to further greater societal goals, such as
the common good. Although individuals might disagree over
what these goals should be, the whole enterprise of using law
to achieve such goals should not be abandoned.5
The second line of criticism takes an opposite tack. To
these detractors, law and economics’ shortcoming is not that
the movement divorces law from normative ends, but rather
that law and economics substitutes the traditional normative
ends of law with its own norms and values: namely, those of
1
See infra Part III.A.
See Richard A. Posner, Law and Economics Is Moral, 24 VAL. U. L. REV.
163, 166-73 (1990).
3
Cf. ALASDAIR MACINTYRE, AFTER VIRTUE (1981) (arguing that Western
Civilization no longer possesses a means of resolving disputes of an ethical or moral
nature).
4
See, e.g., Posner, supra note 2, 166-73.
5
See infra notes 243–244 and accompanying text.
2
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93
the free market. That is, the problem is not that law and
economics is “value neutral,” but rather that law and economics
is heavily value laden (with efficiency and wealth maximization
serving as its primary values).6
Whatever deficiencies law and economics may suffer
from, it is not unfair to demand, as its proponents often do,
that discourse over law and public policy be on terms that are
based on reason and logic (such as the terms of economic
reasoning), rather than on feelings and opinion (which are
often the bases, actual or perceived, of moral and normative
arguments).7 Therefore, the challenge to those who would
confront law and economics from a normative or moral
perspective is to provide objective, reason-based justifications
for such a perspective. I suggest that natural law theory
provides a philosophical framework, if not the philosophical
framework, most up to this challenge.
A thorough elucidation of the merits of natural law
reasoning per se is beyond the scope of this Article. (Moreover,
others have effectively done this.) Instead, this Article
examines what the application of natural law thinking to
securities regulation would accomplish. This Article shall
demonstrate that the application of natural law thinking to
securities regulation generates results that hew more closely to
the original intent of the securities laws than do those
generated via a law and economics approach. Thus, on at least
this ground, natural law reasoning can be proclaimed as the
superior analytical approach to securities regulation. Moreover,
as stated previously, application of natural law reasoning to
securities law issues can also serve as a means of restoring
respect for an original, driving objective of the Securities Acts
that has largely been forgotten: to help mold a more virtuous
securities industry.
This Article shall utilize a specific securities law
problem to illustrate the promise and potential of a natural law
approach to securities regulation: research analyst conflicts of
interest. Part I of this Article sets forth the background to this
particular problem, reviewing the role of research analysts and
identifying the conflicts in question. Part II discusses why the
primary antifraud mechanism of the securities laws (Rule
10b-5) is inadequate to address this problem, hence prompting
6
7
See infra note 219.
See Posner, supra note 2, at 166-73.
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calls for (and attempts at) other solutions. After reviewing the
goals and values of U.S. securities law in general, Part III
proceeds to analyze the solutions (proposed and potential) to
the analyst problem, first from a law and economics perspective
and then via a natural law approach. A juxtaposition of these
two approaches reveals that the insights and solutions offered
by natural law reasoning are superior to those offered by an
economic approach to the law because, at a minimum, they are
more harmonious with the complete set of goals and values
that define the U.S. securities regulatory regime.
I.
BACKGROUND
The research analyst conflict-of-interest scandal has led
to increased litigation concerning, and regulation of, these
specialized market participants. Research analysts, who issue
widely followed research reports recommending whether a
particular security should be bought or sold, were found to
have issued reports and recommendations inconsistent with
their own true opinions. Additionally, most analysts failed to
disclose in their research reports the existence of substantial
conflicts of interest that could reasonably be expected to
influence their recommendations. Investors, relying on these
reports and recommendations, claimed injury by virtue of their
purchase of a misrepresented or overpriced security (which
subsequently declined in value). This Part of the Article shall
explain more fully the role of research analysts within the
securities industry, the nature of their conflicts of interest, and
the nature of their misconduct as alleged by investors and
regulators.
A.
The Role of Research Analysts
The U.S. Supreme Court has remarked that research
analysts are “necessary to the preservation of a healthy
market.”8 The Securities and Exchange Commission (“SEC”)
has similarly observed that “[t]he value to the entire market of
[analysts’] efforts cannot be gainsaid; market efficiency in
pricing is significantly enhanced by [their] initiatives to ferret
out and analyze information, and thus the analyst’s work
8
Dirks v. SEC, 463 U.S. 646, 658 (1983).
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95
redounds to the benefit of all investors.”9 What exactly do
research analysts do that is so important?
Research analysts “perform research and analysis on
companies in order to evaluate securities and estimate their
value as investments.”10 This research and analysis is then
typically presented in a report, along with a recommendation
regarding whether the covered company’s security should be
bought, sold, or held.11 “Sell-side” analysts, who comprise about
a third of all analysts, are typically employed by brokerage
firms or investment banks.12 These analysts produce their
research reports for their firm’s customers and other investors,
ordinarily free of charge and/or contingent upon a certain
minimum level of investing with the analyst’s firm.13 As a
result, the information produced by sell-side analysts becomes
“widely disseminated in the financial markets.”14 The
dissemination of this information is valuable to the investing
9
Id. at 658 n.17 (quoting SEC’s brief, 21 S.E.C. Docket 1401, 1406 (1981))
(alterations in original).
10
Jill E. Fisch & Hillary A. Sale, The Securities Analyst as Agent: Rethinking
the Regulation of Analysts, 88 IOWA L. REV. 1035, 1040 (2003).
11
Id. at 1040-41. As Professors Fisch and Sale explain in detail:
In theory, [research analysts] serve as information conduits . . . between the
companies they investigate and actual or potential investors in those
companies. Their work involves collecting and processing information from a
variety of sources, both inside and outside of the company. As a result of their
research, analysts typically produce two products: a “report” and a
“recommendation.” In the report, analysts offer facts and opinions about the
subject company and its securities. The recommendation, which is generally a
selection from a series of rating categories, advises the investing public to
buy, sell, or continue to hold the securities in question . . . . Analysts read and
digest company reports and other secondary sources, speak with company
officers and employees, and, where appropriate, visit company sites to help
them form an independent impression of the business. Analysts review
company documents filed with the SEC . . . and secondary sources like
Standard & Poor’s that compile, summarize, and republish it. Analysts also
may review trade publications, including industry-specific magazines.
Id. (citations omitted); see also John Jacob, Steve Rock & David P. Weber, Do Analysts
at Independent Research Firms Make Better Earnings Forecasts? 7 (July 2003),
available at http://ssrn.com/abstract=434702.
12
See Fisch & Sale, supra note 10, at 1040-41. There are other kinds of
analysts, such as “independent analysts” (who are not associated with investment
banks and who sell their research to the investing public) and “buy-side analysts” (who
provide their research to the investment banks that employ them, and not to investors
or the public at large), but these analysts do not share the same conflicts that sell-side
analysts do. See id. at 1041 & n.18. Thus, independent and buy-side analysts are not
the focus of this Article and, unless otherwise indicated, the terms “analysts,”
“securities analysts,” and “research analysts” shall be used interchangeably in
reference to sell-side analysts alone.
13
See id. at 1040-41.
14
Id. at 1041.
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public not only insofar as individual investors might rely
directly upon the analysis or recommendations contained in a
particular analyst’s reports,15 but, moreover, insofar as the
dissemination of this information contributes to the efficiency
of the market, thereby helping to foster the accurate pricing of
securities.16
B.
The Conflicts of Interest
As indicated, sell-side analysts are typically employed
by brokerage firms or investment banks.17 Since it is the desire
of such firms to attract and retain investment banking clients,
institutional pressures toward this end unsurprisingly come to
bear upon sell-side analysts.18 This is problematic because
investment banking clients (current and potential) can be
expected to favor positive research coverage over accurate
coverage, and thus analysts are pressured to skew their reports
15
See Robert P. Sieland, Note, Caveat Emptor! After All the Regulatory
Hoopla, Securities Analysts Remain Conflicted on Wall Street, 2003 U. ILL. L. REV. 531,
544 (2003).
16
See Kelly S. Sullivan, Comment, Serving Two Masters: Securities Analyst
Liability and Regulation in the Face of Pervasive Conflicts of Interest, 70 UMKC L. REV.
415, 424 (2001); see also Robert Brooks & Huabing Wang, The Securities Litigation
Reform and Its Impact on Analyst Research 7-8 (2004), available at
http://ssrn.com/abstract=606822 (setting forth results of a study that “highlights
analysts’ role as an information intermediary in the financial market, especially when
information in the market tends to be complex” and how such a role is “increasingly
important” following the Private Securities Litigation Reform Act of 1995); Fisch &
Sale, supra note 10, at 1061 (referring to the work of the sell-side research analyst as a
“public good”). This understanding is grounded upon the efficient market hypothesis,
which, in its widely applied “semi-strong” form, theorizes that “stock price will
incorporate all publicly-available information relevant to the valuation of the stock.”
See Stephen J. Choi, Behavioral Economics and the Regulation of Public Offerings, 10
LEWIS & CLARK L. REV. 85, 97 n.59 (2006); see also Robert J. Shiller, From the Efficient
Market Theory to Behavioral Finance 4 (Cowles Found. Discussion Paper No. 1385,
2002), available at, http://papers.ssrn.com/abstract_id=349660. Thus, the more
information of relevance regarding a security that is made available to the market, the
more accurately that security’s price will reflect its value. See Richard C. Strassner,
How Much Information Is Enough: Securities Market Information and the Quest for a
More Efficient Market, 5 TRANSACTIONS: TENN. J. BUS. L. 5, 9-12 (2003).
17
See supra note 12 and accompanying text.
18
See Barbara Moses, They Were Shocked, Shocked: The “Discovery” of
Analyst Conflicts on Wall Street, 70 Brook. L. Rev. 89, 97 (2004); see also Fisch & Sale,
supra note 10, at 1045-54. Investment banking clients typically include companies
seeking to raise capital via the sale of securities to investors. This business—
underwriting—is highly lucrative because the investment bank selected to lead the
underwriting sales effort typically earns a fee of approximately 7% of the total amount
of equity securities sold in the underwriting. See George J. Papaioannou & Adrian
Gauci, Deregulation and Competition in Underwriting: Review of the Evidence and New
Findings, 5 J. INT'L BUS. & L. 47, 59 (2006).
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
97
in a positive direction.19 A textbook conflict-of-interest case
arises: on the one hand, the analyst is expected to produce a
fair, objective research report for the benefit of investors, but
on the other hand the analyst has an interest in producing a
report that portrays the covered company in a positive light in
order to generate (or maintain) lucrative investment-banking
revenue for the benefit of his or her firm.20
And the conflict in question is not just theoretical—its
existence, and its effects, have been empirically demonstrated.21
“According
to
the
SEC,
downgrades
[in
analyst
recommendations]22 occurred in only 1% of the securities
covered for the year 2000.”23 Some firms adopted official policies
forbidding analysts from “making negative or controversial
comments” about investment banking clients.24 Further still,
many firms linked an analyst’s salary, and/or the analyst’s
bonus, to his or her contribution to the firm’s investment
banking business.25 As Laura Unger, then acting Chairwoman
of the SEC, testified before Congress on July 31, 2001:
First, an analyst’s salary and bonus may be linked to the
profitability of the firm’s investment banking business, motivating
analysts to attract and retain investment banking clients for the
firm. Second, at some firms, analysts are accountable to investment
banking for their ratings. Third, analysts sometimes own a piece of
the company they analyze, mostly through pre-IPO share
acquisitions.26
Thus, structural conflicts of interest exist for many analysts,
and several have clearly allowed their research to be affected
by these conflicts.27 An investigation of Merrill Lynch, for
example, revealed an analyst who publicly recommended
certain securities for purchase, but privately described these
19
20
21
See Fisch & Sale, supra note 10, at 1047.
See id.
See, e.g., Moses, supra note 18, at 95-99; Fisch & Sale, supra note 10, at
1047-54.
22
That is, where an analyst changed a recommendation from more favorable
to less favorable.
23
Fisch & Sale, supra note 10, at 1047.
24
Id. at 1049.
25
See id. at 1052-54; see also RICHARD ROBERTS, WALL STREET 60 (2002).
26
Conflicts of Interest Faced by Brokerage Firms and Their Research
Analysts: Hearing Before the Subcomm. on Capital Markets, Insurance and
Government Sponsored Enterprises of the H. Comm. on Financial Services, 107th Cong.
(2001) (testimony of Laura S. Unger, Acting Chair, SEC), available at
http://www.sec.gov/news/testimony/073101ortslu.htm.
27
See infra text accompanying notes 28-29.
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same securities as “junk”;28 an analyst at Salomon Smith
Barney who rated an issuer as a “buy” was discovered to have
indicated to two colleagues that the company was a “pig” and
should instead be rated “underperform.”29
C.
Claims Against Research Analysts
While the market was performing favorably in the
1990s, relatively scant serious attention was paid to the issue
of analyst conflicts of interest.30 Even less litigation was
generated over the issue.31 But as the market began to falter in
1999, and as stock prices began to drop, analysts became the
focus of scrutiny and litigation.32
The New York Attorney General, the SEC, the National
Association of Securities Dealers (“NASD”), the New York
Stock Exchange, and the North American Securities
Administrators Association all launched investigations into the
conduct of research analysts, which resulted in a “Global
Settlement” among the regulators and ten Wall Street firms.33
Under the terms of the settlement, “the settling firms agreed to
pay a total of approximately . . . $875 million in penalties and
disgorgement . . . , $433 million to fund independent research,
and $80 million to fund and promote investor education.”34
28
See Fisch & Sale, supra note 10, at 1049.
See Christine Hurt, Moral Hazard and the Initial Public Offering, 26
CARDOZO L. REV. 711, 757 (2005).
30
See Moses, supra note 18, at 97-98.
31
See id.
32
See Jill I. Gross, Securities Analysts’ Undisclosed Conflicts of Interest:
Unfair Dealing or Securities Fraud? 2002 COLUM. BUS. L. REV. 631, 631-33 (2002); see
also Moses, supra note 18, at 97-104.
33
See Moses, supra note 18, at 99-103; see also SEC Launches Inquiry into
Research Analyst Practices, 7 No. 22 Andrews’ Bank & Lender Liab. Litig. Rep. 11
(May 16, 2002).
34
Moses, supra note 18, at 102-03. Additionally,
29
the Global Settlement requires the brokerage firms to insulate their research
analysts from investment banking pressure by: (i) physically separating the
departments; (ii) requiring senior management to determine the research
budget without input from investment banking; (iii) prohibiting any
investment banking role in evaluating analysts or determining their
compensation; (iv) requiring the managers of the research group alone to
make all decisions to initiate or terminate company-specific coverage; and (v)
keeping analysts out of ‘beauty contests’ and roadshows. In addition, the
firms agreed to purchase independent research from at least three outside
firms, to furnish that research to its customers for the next five years, and to
make its own analysts’ historical ratings and price forecasts publicly
available in order to enable investors to compare analyst performance
throughout the industry.
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
99
Additionally, by November 2002, “over 150 securities
fraud class actions were pending against Merrill Lynch alone,
based primarily on analyst conflict-of-interest allegations.”35
These actions were typically brought under section 10(b) of the
Securities and Exchange Act of 1934 and SEC Rule 10b-5
promulgated thereunder, which “prohibits fraud in connection
with the purchase or sale of a security.”36 The crux of these
complaints is that an analyst’s failure to disclose conflicts of
interest constitutes a material omission and/or that an
analyst’s publishing of a disingenuous opinion constitutes a
material misstatement.37 This, in turn, renders the analyst’s
research report(s) false or misleading, and thereby constitutes
a fraud in connection with plaintiff’s purchase of the security
(or securities) that are the subject of the research report.38
What makes these cases particularly interesting is that, in
many ways, they test the limits of existing securities law.39
II.
ANALYST LIABILITY UNDER THE SECURITIES LAWS
A.
Rule 10b-5
Section 10(b) of the Securities Exchange Act of 1934
prohibits the use of “any manipulative or deceptive device or
contrivance of such rules and regulations as the Commission
may prescribe as necessary or appropriate in the public
interest or for the protection of investors” in connection with
the purchase or sale of a security.40 SEC Rule 10b-5,
promulgated pursuant to § 10(b) of the Securities Exchange
Act, has been the principal mechanism by which investors have
challenged the alleged misrepresentations and/or omissions in
research reports.41 Although multiple theories of liability can be
formulated pursuant to Rule 10b-5 (such as liability on the part
of those who “employ any devise, scheme, or artifice to
defraud,” or who “engage in any act, practice, or course of
Id. at 103.
35
Id. at 104. As of November 2007, a large number of these have been
settled. See Cohen Milstein Hausfeld & Toll, Securities Fraud/Investor Protection,
Merrill Lynch Co. and Henry Blodget, http://www.cmht.com/cases_merrilllynch.php.
36
Securities and Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b) (2000); 17
C.F.R. § 240.10b-5 (2006); see also Moses, supra note 18, at 104.
37
See Moses, supra note 18, at 104-05.
38
See id. at 105.
39
See id. at 114-15; see also Fisch & Sale, supra note 10, at 1057-58.
40
Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78(j) (2000).
41
See supra text accompanying note 36.
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business which operates or would operate as a fraud or deceit
upon any person”42), the primary means by which alleged
analyst misconduct has been challenged has been via the
assertion of liability based upon “misstatements or omissions”
within the context of a private right of action, and thus this
shall be the focus of this Article.43 Additionally, this Article
shall assume that all of the factual information contained in an
analyst’s report concerning the covered issuer and security is
accurate and complete. This is because, as commentators have
pointed out, the issue of liability for false factual information
contained in a research report (such as misstating the revenue
of a covered company) is not a particularly difficult one to
resolve.44 Furthermore, this assumption allows one to focus on
the more difficult questions of analyst liability arising from
(1) misstatements concerning the analyst’s opinions and
recommendations as set forth in his or her report, and/or (2)
omissions concerning the analyst’s conflicts of interest.
To state a valid claim for violation of Rule 10b-5 based
upon a misstatement or omission, a plaintiff must allege that
the defendant “(1) made a misstatement or omission, (2) of
material fact, (3) with scienter, (4) in connection with the
purchase or sale of securities, (5) upon which the plaintiff
relied, and (6) that reliance proximately caused the plaintiff’s
injury.”45 These elements of Rule 10b-5 liability shall be
examined in turn.46 With regard to omission-based liability,
this section shall also briefly examine whether an analyst must
42
43
17 C.F.R. § 240.10b-5 (2006).
See Moses, supra note 18, at 105. The theory of these lawsuits is as follows:
When analysts, with the intent to gain business through manipulation of
security prices, yield to the pressures of investment banking conflicts, they
have perpetrated fraudulent activity in connection with the purchase or sale
of securities. . . . Section 10(b) of the Securities Exchange Act and its
corresponding Rule 10b-5 make these behaviors unlawful.
Sullivan, supra note 16, at 427.
44
See, e.g., Shirli Fabbri Weiss, Securities Analysts in Securities Class
Actions, in SECURITIES LITIGATION 1999, at 431, 454 (P.L.I. Corp. Law and Practice
Course Handbook Series No. 1136, 1999).
45
Kevin P. Roddy, Eight Years of Practice and Procedure Under the Private
Securities Litigation Reform Act of 1995, in POSTGRADUATE COURSE IN FEDERAL
SECURITIES LAW, at 141, 177 (A.L.I.-A.B.A. Course No. SK027, 2004). It should also be
noted that in an enforcement action undertaken by the SEC, the elements of reliance
and loss causation need not be demonstrated. See SEC v. Blavin, 760 F.2d 706, 711
(6th Cir. 1985).
46
The jurisdictional requirement that defendant made “use of any means or
instrumentalities of interstate commerce, or of the mails, or of any facility of any
national securities exchange” shall be assumed. 17 C.F.R. § 240.10b-5 (2006).
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
101
owe a duty to a plaintiff in order for that plaintiff to maintain a
Rule 10b-5 cause of action.47 As shall be seen, there are
significant ambiguities concerning the application of Rule
10b-5 to analyst misconduct.
1. Misstatement or Omission
The first element of a Rule 10b-5 claim is that the
defendant in question made a misstatement or omission.48
Despite the oft-repeated characterization of Rule 10b-5 liability
as simply pertaining to “misstatements or omissions,”49 the
actual text of Rule 10b-5 does not impose liability upon
“misstatements” or “omissions” generally, but rather upon “any
untrue statement of material fact” or the omission of “a
material fact necessary in order to make the statements
made . . . not misleading”:50
It shall be unlawful . . . [t]o make any untrue statement of material
fact or to omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they
were made, not misleading . . . .51
The omission in a research report of a statement revealing an
analyst’s conflicts of interest would certainly constitute the
omission of a “fact.” With regard to misstated opinions,
however, this text provides some difficulty in that it requires us
to consider whether an analyst’s opinion or recommendation
could ever constitute an “untrue statement of . . . fact.”52
As opinions are, by definition, not statements of fact, it
could seem to follow, a fortiori, that an analyst’s opinions
(including his or her recommendations) could not, by definition,
constitute an untrue statement of fact.53 However, at issue is
47
See infra Part II.A.7.
See Roddy, supra note 45, at 177.
49
See id.
50
17 C.F.R. § 240.10b-5 (2006).
51
Id.
52
Id. (emphasis added).
53
See, e.g., In re Boston Tech., Inc. Sec. Litig., 8 F. Supp. 2d 43, 64 (D. Mass.
1998) (“[A] ‘recommended’ or ‘buy’ rating is not actionable because opinions generally
do not provide sufficient basis for 10b-5 liability. . . . A recommendation or rating by an
independent securities firm is the purest of opinions.”) (citation omitted); see also
Wright v. IBM, 796 F. Supp. 1120, 1124-25 (N.D. Ill. 1992) (stating that “actions for
violations of the federal securities laws typically may not be predicated on mere
opinions or projections,” although acknowledging that “the recent trend . . . has moved
toward recognition of an expanding range of opinions and projections as potentially
actionable”); see also Moses, supra note 18, at 112.
48
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not the correctness of the analyst’s opinion or recommendation
per se, but rather whether what is set forth as the analyst’s
opinion or recommendation is truly the analyst’s opinion or
recommendation. That is, although an opinion is not the same
thing as a statement of fact, whether or not an individual
possesses a particular opinion is itself a factual question.54
Thus, to the extent that an analyst declares that “my opinion
is x” or “my recommendation is y,” he or she is fairly
characterized as making a factual assertion as to what his or
her opinion or recommendation is.55 While some courts have
held that “analysts’ optimistic statements can be actionable if
not genuinely and reasonably believed,”56 others “have found
that recommendations and statements in analysts reports are
inactionable statements of opinion.”57
The U.S. Supreme Court grappled with the actionability
of disingenuous opinions, albeit within the context of proxy
solicitation, in Virginia Bankshares, Inc. v. Sandberg.58 In
Virginia Bankshares, plaintiffs alleged that defendant’s proxy
solicitation materials were materially misleading in violation of
§ 14(a) of the 1934 Securities Exchange Act.59 The bases of
plaintiffs’ allegation in Virginia Bankshares were statements
contained in the proxy solicitation materials regarding
defendant’s directors’ stated beliefs that (1) minority
shareholders would receive a “fair” price and “high” value for
their shares under the terms of a merger proposal under
consideration, and that (2) the directors recommended adoption
of the merger proposal for these reasons.60 Plaintiffs alleged
that these statements did not reflect the directors’ true beliefs,
54
See Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (Ch. App. 1885) (“[T]he
state of a man’s mind is as much a fact as the state of his digestion.”).
55
See In re Apple Computer Sec. Litig., 886 F.2d 1109, 1113 (9th Cir. 1989)
(holding that a “projection or statement of belief contains at least three implicit factual
assertions,” including the assertion that “the statement is genuinely believed”); see also
Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 295 (1892) (acknowledging that
one’s state of mind can be “a material fact to be proved”) (non-securities law context);
Vulcan Metals Co. v. Simmons Mfg., 248 F. 853, 856 (2d Cir. 1918) (Hand, J.) (“An
opinion is a fact. . . . When the parties are so situated that the buyer may reasonably
rely upon the expression of the seller’s opinion, it is no excuse to give a false one.”)
(non-securities law context).
56
Weiss, supra note 44, at 441; see also Fisch & Sale, supra note 10, at 1083
(recommending “a rule that treats analyst recommendations as factual statements and
holds analysts accountable if they do not actually believe those statements”).
57
Weiss, supra note 44, at 454; see also supra note 53.
58
501 U.S. 1083 (1991).
59
Id. at 1086-87.
60
Id. at 1088.
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
103
hence rendering the proxy literature materially misleading.61
The Court concluded that although both such statements were
indeed “factual”62 (as well as material63), they would only be
actionable under § 14(a) if they could be deemed to “expressly
or impliedly assert[] something false or misleading about” their
underlying subject matter.64 That is, “disbelief or undisclosed
motivation, standing alone” was deemed “insufficient to satisfy
the element of fact that must be established under § 14(a),”65
but a falsely presented opinion coupled with “something false
or misleading in what the statement expressly or impliedly
declared about its subject” would be actionable under § 14(a).66
The Court resisted the recognition of liability “on mere disbelief
or undisclosed motive without any demonstration that the
proxy statement was false or misleading about its subject,”
noting that it would not permit litigation “confined solely to . . .
the ‘impurities’ of a director’s ‘unclean heart.’”67
Virginia Bankshares, then, recognizes the correct
characterization of feigned opinions and/or recommendations:
such statements are properly deemed untrue statements of
fact. However, Virginia Bankshares adds to the complexity of
the issue by proceeding to hold that, even though factual, such
statements are nevertheless not necessarily actionable per se
(at least within the context of § 14(a) actions). Whether the
reasoning of Virginia Bankshares will be applied to research
analysts statements challenged under Rule 10b-5 (and, if so,
how) remains to be seen. If it were applied, actions against
analysts who issued otherwise-accurate reports containing
misstated opinions might be characterized as grounded upon
“mere disbelief,” and thus not capable of entitling plaintiffs to
relief. On the other hand, a better argument could be made in
favor of the proposition that an analyst’s opinion “impliedly
asserts something false or misleading” about the underlying
security itself, and is not, therefore, properly characterized as
61
Id. at 1088-89
Id. at 1092.
63
Id. at 1090-91.
64
Id. at 1096.
65
Id. at 1090-91.
66
Id.
67
Id. The Court acknowledged that “it would be rare to find a case with
evidence solely of disbelief or undisclosed motivation without further proof that the
statement was defective as to its subject matter.” Id. Nevertheless, the Court felt it
important to circumscribe liability in such cases given that “the temptation to rest an
otherwise nonexistent § 14(a) action on psychological enquiry alone would threaten . . .
strike suits and attrition by discovery.” Id.
62
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merely a statement of personal belief divorced from the subject
matter at issue (that is, the covered securities). This is because
a “buy” rating, for example, impliedly—if not expressly—
asserts that the security in question is going to perform well,
regardless of the analyst’s own personal beliefs. Under such a
line of reasoning, the analyst’s false opinions would be
actionable as per the logic of Virginia Bankshares.
2. Materiality
“A fact is material if it is substantially likely that the
fact would be viewed by a reasonable investor as significantly
altering the ‘total mix’ of information available, and if there is
a substantial likelihood that a reasonable investor would
consider it important to the investment decision.”68 As the
continuum of potential misstatements and omissions is a long
one, the question of materiality is ordinarily considered a
question of fact.69
In some instances, however, the question of materiality
would seem resolvable as a matter of law. For example, it is not
difficult to imagine a misstatement or omission that would be
immaterial as a matter of law by virtue of its marginality, such
as an opinion that is only slightly exaggerated or a conflict that
is quite attenuated. A more interesting question is whether
even egregious misstatements of a research analyst’s opinion,
or the omission of very clear and serious conflicts of interest on
the part of the analyst, might be properly considered
immaterial as a matter of law. Put differently, perhaps, as a
matter of law, analyst opinions and analyst conflicts should be
deemed per se immaterial.70 For it is not altogether obvious that
a reasonable investor could ever view an analyst’s opinion as
“significantly altering” the “total mix” of information available
regarding a given security or company. In the case of an
analyst’s opinion in line with those of all (or most) other
analysts, how would such a redundant opinion “significantly
68
Roddy, supra note 45, at 178; see also Basic, Inc. v. Levinson, 485 U.S. 224,
231-32 (1988) (adopting as materiality standard for Rule 10b-5 the standard previously
set forth by the Court within the proxy solicitation context in TSC Industries, Inc. v.
Northway, Inc., 426 U.S. 438, 449 (1976)).
69
See Roddy, supra note 45, at 178.
70
As one court observed: “a statement of opinion emanating from a research
analyst is far more subjective and far less certain [than a statement of fact from an
issuer], and often appears in tandem with conflicting opinions from other analysts as
well as new statements from the issuer.” DeMarco v. Lehman Bros., 222 F.R.D. 243,
246-47 (S.D.N.Y. 2004).
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
105
alter” the “total mix” of information available? With regard to
an outlier opinion by an analyst, how could an outlier—by
definition, almost—ever be viewed as significantly altering the
total mix of information available? And, if the opinions of
covering analysts are split as to a particular security or
company, again, how could the opinion of one additional
analyst significantly alter the total mix of information?
Regarding an analyst’s failure to disclose his or her
conflicts of interest, the general presumption has been that
such an omission would be material71 and, consequently,
actionable under Rule 10b-5.72 The prevailing assumption
notwithstanding, the conflation of “materiality” with
“actionability” is suspect. A strict textual analysis of Rule 10b-5
reveals that not every omission of a material fact is unlawful,
but rather only the omission of “a material fact necessary in
order to make the statements made, in light of the
circumstances under which they were made, not misleading” is
unlawful.73 The type of omission contemplated by Rule 10b-5,
then, would be one in which a communication states that the
company should perform well next year on account of an
expected doubling of revenue, without mentioning that a
tripling of expenses is also expected.74 Omission of information
concerning an analyst’s conflicts of interest, however, does not
so clearly make the other statements in a research report
misleading. Courts and commentators have not generally
focused on this issue, but, as indicated, have rather presumed
that so long as the omitted information is material, its
71
See Sullivan, supra note 16, at 428 (2001) (“Based on the assumption that
conflicts of interest influence the objectivity of research reports and recommendations
made by analysts, conflicts of interest appear to be factors that the reasonable investor
would consider when making an investment decision.”).
72
See Chasins v. Smith, Barney & Co., 438 F.2d 1167, 1172 (2d Cir. 1970)
(“[F]ailure to inform the customer fully of its possible conflict of interest, in that it was
a market maker in the securities which it strongly recommended for purchase . . . was
an omission of a material fact in violation of Rule 10b-5.”).
73
17 C.F.R. § 240.10b-5 (2006).
74
See, e.g., Wallace v. Sys. & Computer Tech. Corp., No. 95-CV-6303, 1997
WL 602808, at *11 n.30 (E.D. Pa. Sept. 23, 1997).
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nondisclosure is unlawful under Rule 10b-5.75 This presumption
may be unwarranted.76
Additionally, assuming that all the underlying facts
concerning the covered company and security are complete and
accurate, are not reasonable investors armed with all the
information they need to make an investment decision,
regardless of the analyst’s own opinions, recommendations, and
biases? And is this not especially the case if, as in many cases,
investors rely upon their brokers’ advice (who apply expertise
in sifting through research reports and other market
information) in deciding upon which securities to buy, sell, or
hold? And what if, added to this information, the report also
fully discloses whatever conflicts of interest the analyst has?
Would this tip the materiality balance regarding misstated
opinions in favor of immateriality? A strong argument could be
made that it would.77 And arguments such as these (albeit
outside of the specific context of research analyst reports) have
led to the development of the judicially crafted “bespeaks
caution” doctrine,78 which Congress codified, in limited form, as
a safe harbor under the Private Securities Litigation Reform
Act, 79 each of which is addressed below.
a. Safe Harbor of the Private Securities
Litigation Reform Act
In 1995, Congress passed the Private Securities
Litigation Reform Act (“PSLRA”), which includes a “safe
harbor” provision eliminating liability for certain forwardlooking statements.80 The applicability of the safe harbor
provision on analyst reports is uncertain.81
75
But see In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 277 (3d Cir. 2004)
(“A determination that information missing from a registration statement is material
does not end our analysis. We must also decide whether the issuer had the duty to
disclose that material fact such that its omission made the statement misleading.”).
76
Of course, failure to disclose a conflict of interest would be actionable
under Rule 10b-5 if the research report affirmatively touts its objectivity. See Shah v.
Meeker, 435 F.3d 244, 248 (2d Cir. 2006).
77
But see DeMarco v. Lehman Bros., 222 F.R.D. 243, 246 (S.D.N.Y. 2004)
(noting that empirical evidence suggests that “some research analysts may have the
ability to influence market prices on the basis of their recommendations”).
78
Alan R. Palmiter, Toward Disclosure Choice in Securities Offerings, 1999
COLUM. BUS. L. REV. 1, 71 (1999).
79
Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109
Stat. 737 (1995) (codified in scattered sections of 15 U.S.C.).
80
Id. at § 102 (codified at 15 U.S.C. §§ 77z-2, 78u-5).
81
See Weiss, supra note 44, at 442-44.
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
107
By its terms, the safe harbor excludes as a basis of
liability “any forward-looking statement” that is either
immaterial or, more importantly, is “accompanied by
meaningful cautionary statements identifying important
factors that could cause actual results to differ materially from
those in the forward-looking statement.”82 Thus, it appears as
though the PSLRA’s safe harbor could provide a “Joe Isuzu”83
defense for research analysts who issue reports containing
biased, exaggerated, or otherwise dishonest opinions and
recommendations, but who also include in their reports
accurate and complete information regarding the covered
company and its securities, as well as an accurate and complete
disclosure concerning whatever conflict(s) of interest the
analyst has (for this information and disclosure, properly
presented, would arguably constitute “meaningful cautionary
statements identifying important factors that could cause
actual results to differ materially from those” expressed in the
analyst’s opinions and recommendations).84 Indeed, “Congress
specifically intended that application of the safe harbor should
be determined without any inquiry into the defendant’s state of
mind.”85 However, the utility of the safe harbor to lying
analysts would be limited if one takes the position that the only
82
15 U.S.C. § 78u-5(c)(1) (2000). The safe harbor provision also excludes from
liability forward-looking statements regarding which scienter cannot be proven, but
because of the disjunctive nature in which the safe harbor was drafted, the question of
scienter need not be reached if the conditions regarding “meaningful cautionary
statements” are satisfied. Id.
83
“Joe Isuzu” was a fictional salesperson, portrayed by actor David Leisure,
in a television ad campaign launched by American Isuzu Motors, Inc. in the mid1980s. See Cullen Thompson, Isuzu Case Study (Nov. 26, 2000), available at
http://www.unc.edu/~cullent/isuzu.html. In the commercials, Joe Isuzu “would say
anything to get consumers to buy his car” and “outright lied to his audience.” Id.
However, as he was doing this, “the words ‘He’s lying’ ran across the bottom of the
screen followed by the actual facts.” Id.
84
15 U.S.C. § 78u-5(c)(1). I am assuming here that an analyst’s opinion
regarding the future prospects of a particular security is indeed a “forward-looking
statement” as that term is understood under the safe harbor.
85
John F. Olson et al., Recent Developments in Disclosure and Dealing with
Analysts and the Financial Press, in POSTGRADUATE COURSE IN FEDERAL SECURITIES
LAW, at 313, 346-47 (A.L.I.-A.B.A. Course No. SE10, 1999). See also Brooks & Wang,
supra note 16, at 4 (noting that Senator Joseph Biden remarked that the PSLRA’s safe
harbor grants corporations “a license to lie”). But see ROBERT J. HAFT & MICHELLE H.
HUDSON, LIABILITY OF ATTORNEYS AND ACCOUNTANTS FOR SECURITIES TRANSACTIONS §
7.5 (2005) (“Many commentators believe that the courts will not protect the
dissemination of knowingly false statements accompanied by literally compliant
cautionary statements.”); In re Enron Corp. Sec., Derivative & ERISA Litig., 235 F.
Supp. 2d 549, 576 (S.D. Tex. 2002) (“The safe harbor provision does not apply where
the defendants knew at the time that they were issuing statements that the
statements contained false and misleading information . . . .”).
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disclosure capable of constituting a “meaningful cautionary
statement[]” with regard to an analyst’s misstated opinion
would be one indicating that the research analyst was, in fact,
misstating his or her opinion.86
Another question concerning the availability of the
PSLRA safe harbor is whether its limited applicability even
extends to research analysts. For the safe harbor only applies
to forward-looking statements made by (1) an issuer; (2) a
person or entity acting on the issuer’s behalf; and (3) “an
underwriter, with respect to information provided by such
issuer or information derived from information provided by
such issuer.”87 The only category into which a research analyst
might reasonably fall is the third.
Although an analyst’s report is based largely on
information “provided by [an] issuer” and/or “derived from
information provided by [an] issuer,” whether the analyst
constitutes an “underwriter” is far from clear.88 The term
“underwriter” in the PSLRA has “the same meanings as in the
Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.],”89
which is:
“Underwriter” means any person who has purchased from an issuer
with a view to, or sells for an issuer in connection with, the
distribution of any security, or participates or has a direct or indirect
participation in any such undertaking, or participates or has a
participation in the direct or indirect underwriting of any such
undertaking; but such term shall not include a person whose interest
is limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributor’s or seller’s
commission.90
In those cases where the analyst’s own firm is engaged
in the underwriting of the security covered by the analyst’s
reports, such analysts could be deemed (depending on the facts)
to have participated in the underwriting. Indeed, a key
contention in many of the Rule 10b-5 actions against analysts
is that analysts have had indirect (if not direct) participation in
their firm’s banking activity via their role in touting the
86
See supra note 83; see also infra Part II.A.2.b (discussing “meaningful
cautionary statements” within the context of the bespeaks caution doctrine).
87
15 U.S.C. § 78u-5(a) (2000).
88
See HAFT & HUDSON, supra note 85, at 552 n.164 (opining that the safe
harbor “would only apply, if at all, to an investment bank that underwrote securities of
the issuer. It would not apply directly to analysts.”).
89
15 U.S.C. § 78c(a)(20).
90
Id. § 80b-2(a)(20).
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
109
underwritten securities in their research reports.91 Moreover,
regardless of his or her actual role in the underwriting effort,
the mere fact that the analyst is an employee of the
underwriting firm could arguably transform him or her into an
“underwriter” for purposes of the PSLRA under agency
principles.92
In the Joint Explanatory Statement of the Committee of
Conference which recommended passage of the PSLRA, the
“muzzling effect of abusive securities litigation” was discussed
prominently.93 The Committee explained that it “adopted a
statutory ‘safe harbor’ to enhance market efficiency by
encouraging
companies
to
disclose
forward-looking
information.”94 The Committee’s comments on the provision’s
applicability to underwriters does not, however, shed much
light on whether an analyst would be covered.95 Thus, even if
Rule 10b-5 liability were found applicable to a research analyst
accused of including misleading opinions in his or her report,
whether such analyst could avail himself or herself of the
PSLRA’s safe harbor by revealing his or her conflicts of interest
is itself an open question.
b. “Bespeaks Caution” Doctrine
In promulgating the PSLRA’s statutory safe harbor, the
Conference Committee explicitly noted that it did not intend
for the safe harbor “to replace the judicial ‘bespeaks caution’
doctrine or to foreclose further development of that doctrine by
the courts.”96 The bespeaks caution doctrine has been applied to
analyst statements in securities litigation brought against
91
See Fisch & Sale, supra note 10, at 1047; cf. Olson et al., supra note 85, at
371.
92
See RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. C (2006).
Joint Explanatory Statement of the Committee of Conference, in SAILING IN
“SAFE HARBORS”: DRAFTING FORWARD-LOOKING DISCLOSURES, at 39, 52-53 (P.L.I.
Corporate Law and Practice Course Handbook Series No. 1020, 1997) [hereinafter
Joint Statement].
94
Id. at 53.
95
See id. at 55 (“The safe harbor covers underwriters, but only insofar as the
underwriters provide forward looking information that is based on or ‘derived from’
information provided by the issuer. Because underwriters have what is effectively an
adversarial relationship with issuers in performing due diligence, the use of the term
‘derived from’ affords underwriters some latitude so that they may disclose adverse
information that this issuer did not necessarily ‘provide.’”).
96
Id. at 56.
93
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research analysts97 and may approximate the “Joe Isuzu”
defense contemplated earlier, regardless of the availability of
the statutory safe harbor.98
The judicially created bespeaks caution doctrine
essentially
reduces
otherwise-material
statements
to
99
immaterial under certain circumstances. Under the doctrine,
“forecasts, opinions, or projections do not amount to ‘material
misrepresentations’ if ‘meaningful cautionary statements’
accompany the forward-looking statements.”100 As with the
PSLRA’s safe harbor, the definition of “meaningful” is not
entirely clear, but will depend on the circumstances. Again,
Virginia Bankshares might be instructive here, as in that case
the Supreme Court addressed the closely related issue of
materiality within the context of a proxy statement containing
both accurate data and misleading statements:
[P]etitioners are on perfectly firm ground insofar as they argue that
publishing accurate facts in a proxy statement can render a
misleading proposition too unimportant to ground liability.
But not every mixture with the true will neutralize the deceptive. If
it would take a financial analyst to spot the tension between the one
and the other, whatever is misleading will remain materially so, and
liability should follow.101
In the case of those analysts who have fully disclosed
their conflict(s) of interest, it becomes difficult to see how such
analysts’ opinions could ever have a substantial likelihood of
being considered important to the investment decision of a
reasonable investor. For would not a reasonable investor,
informed of an analyst’s conflicts, appropriately discount the
importance of that analyst’s opinion as subject to potential
bias? Thus, full disclosure of an analyst’s conflict(s) of interest
could be deemed to put investors on notice that, at a minimum,
the opinions and recommendations contained in the analyst’s
report are subject to bias and are not to be relied upon as an
“important” factor in a reasonable investor’s research decisions,
97
See In re Salomon Analyst AT&T Litig., 350 F. Supp. 2d 455, 467 (S.D.N.Y.
98
See supra text accompanying note 83.
See Roddy, supra note 45, at 218.
Id.
Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1097 (1991).
2004).
99
100
101
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
111
thereby defeating any argument that such opinions are
material.102
Taken to its logical conclusion, then, the bespeaks
caution doctrine would appear to insulate analysts from
liability for false opinions, so long as the reader of the analyst’s
reports has sufficient disclosure of the analyst’s conflicts along
with complete and accurate information regarding the company
as outlined above—in other words, disclosure that would
enable the investor to (1) grasp the incongruity between the
analyst’s recommendations or opinions and the condition
and/or prospects of the covered company, and (2) discount the
analyst’s opinions on account of clear grounds for bias.103 As
Professor Palmiter has explained:
Federal courts in securities fraud cases have declared that
disclosures must be read in their context and if forecasts, opinions,
or projections are accompanied by sufficiently clear warnings so that
no reasonable investor would rely on them, they are not
actionable.104
Since the bespeaks caution doctrine, unlike the PSLRA’s
safe harbor, is not limited to issuers and underwriters,105
research analysts should not have much difficulty invoking its
potential applicability to their statements. However, some have
argued that “all the cautionary language in the world does not
remove the taint of fraud from statements of opinion that are
actually false.”106 To that end, there does not appear to be any
decision in which a court applied the bespeaks caution doctrine
to protect a defendant who was accused of making a knowingly
false statement. Thus, as with the safe harbor provision of the
PSLRA, the bespeaks caution defense is ultimately of
questionable utility to a research analyst who includes
102
This understanding of the expected effect that knowledge of analyst
conflicts can be expected to have on investors presents, in turn, a strong argument in
favor of finding the omission in a research report of such conflicts to be itself material.
And it certainly is fair to say that regulators apparently find such omissions important
(and, as can be safely assumed, material as well), as evidenced by their aggressive
prosecution of those research analysts whose firms entered into the aforementioned
Global Settlement. See supra text accompanying notes 33-34.
103
Cf. Weiss, supra note 44, at 454-55 (observing that sufficient warnings and
disclaimers “may insulate the analyst from liability”); Virginia Bankshares, 501 U.S. at
1097 (“publishing accurate facts in a proxy statement can render a misleading
proposition too unimportant to ground liability.”).
104
Palmiter, supra note 78, at 71 (addressing the bespeaks caution doctrine).
105
See supra note 87 and accompanying text; id. at 71-73.
106
In re Salomon Analyst AT&T Litig., 350 F. Supp. 2d 455, 468 (S.D.N.Y.
2004).
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dishonest statements of opinion in a report, even if the report
is otherwise complete and accurate, and contains sufficient
disclosure of the analyst’s conflicts.
3. Scienter
Scienter for Rule 10b-5 purposes encompasses an
“intent to deceive, manipulate, or defraud,” or recklessness to
that same end.107 Intentionally misportrayed opinions on the
part of analysts satisfy the element of scienter by definition.
Scienter would most likely be difficult to prove within the
context of an omission concerning conflicts of interest,
especially in the absence of any accompanying false or
misleading statements.108 For, in the absence of a skewed
research report that contained false or misleading statements,
the omission of a statement regarding the analyst’s conflicts of
interest would appear to be unintentional rather than
purposeful. However, it could be argued, perhaps, that even a
completely honest analyst has an incentive to keep secret any
conflicts of interest in order to bolster the credibility of his or
her reports, and the factual record could potentially bear that
argument out. In any event, difficulty in demonstrating the
existence of scienter goes to questions of proof, and not
whether, theoretically, this particular element could ever be
satisfied. Thus, the element of scienter does not pose a
theoretical challenge to the applicability of Rule 10b-5 liability
to analysts whose reports include misstatements and/or
omissions.
4. In Connection with the Purchase or Sale of Securities
The courts have interpreted the element of “in
connection with the purchase or sale of any security” quite
broadly, encompassing practically everything that played a role
in a reasonable investor’s decision to purchase or sell a
security.109 Thus:
107
See Elizabeth A. Nowicki, A Response to Professor John Coffee: Analyst
Liability Under Section 10(b) of the Securities Exchange Act of 1934, 72 U. CIN. L. REV.
1305, 1317 (2004) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 (1976)).
108
See Gross, supra note 32, at 664.
109
See, e.g., SEC v. Tex. Gulf Sulphur Co., 401 F.2d 833, 860 (2d Cir. 1968)
(en banc); see also Superintendent of Ins. of N.Y. v. Bankers Life & Cas. Co., 404 U.S.
6, 12 (1971).
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
113
In cases involving the public dissemination of false and misleading
information, courts have held that “where the fraud alleged involves
the public dissemination of information in a medium upon which an
investor would presumably rely, the ‘in connection with’ element
may be established by proof of the materiality of the
misrepresentation and the means of its dissemination.”110
In light of the standard applied, this element of Rule
10b-5 liability would readily be satisfied in the case of a
securities analyst whose reports included material omissions or
misstatements, and, as with scienter, does not present a
theoretical ambiguity with regard to the Rule’s applicability.111
5. Reliance
A Rule 10b-5 plaintiff must prove that “defendant’s
misrepresentation or omission caused him to purchase the
recommended security.”112 This element is known as reliance,
sometimes referred to as “transaction causation.”113 Within the
context of an omission, the Supreme Court has essentially
dispensed with the reliance requirement, holding that so long
as the omission was material, a presumption of reliance will be
made.114 Within the context of an affirmative misstatement,
reliance can be demonstrated by evidence showing that the
analyst’s report played a role in plaintiff’s decision to purchase
(or sell) the security in question.115 Absent such evidence, a
plaintiff could possibly enjoy a presumption of reliance under
the “fraud-on-the-market” doctrine.116 “Under this doctrine,
plaintiffs are entitled to a rebuttable presumption of direct
reliance if they relied on the integrity of an efficient market
where face-to-face transactions do not occur.”117 An efficient
market, as explained previously, is one in which the price of a
security is affected by all publicly available material
information.118 By relying on the stock price, an investor in an
efficient market is (the argument goes) relying, in part, on
110
See Nowicki, supra note 107, at 1345 (citing Semerenko v. Cendant Corp.,
223 F.3d 165, 176 (3d Cir. 2000)).
111
See id.
112
See Gross, supra note 32, at 671.
113
See id.
114
See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153-54
(1972).
115
See Gross, supra note 32, at 671.
116
See id. at 672.
117
See id.
118
See supra Part I.A.
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analyst reports, even if he or she never read them, because the
information contained in such reports would have been
assimilated into the stock price.119 And, as one commentator
has concluded, “[s]ince virtually all securities covered by a
research analyst are traded in an efficient market, a plaintiff
could sue an analyst without the need to prove reliance.”120
Others, however, have questioned the availability of the
fraud-on-the-market doctrine to analyst statements.121 As
Judge Rakoff of the Southern District of New York explained:
[T]here is a qualitative difference between a statement of fact
emanating from an issuer and a statement of opinion emanating
from a research analyst. A well-developed efficient market can
reasonably be presumed to translate the former into an effect on
price, whereas no such presumption attaches to the latter. This, in
turn, is because statements of facts emanating from an issuer are
relatively fixed, certain, and uncontradicted. Thus, if an issuer says
its profits increased 10%, an efficient market, relying on that
statement, fixes a price accordingly. If later it is revealed that the
previous statement was untrue and that the profits only increased
5%, the market reaction is once again reasonably predictable and
ascertainable. . . .
As a result, no automatic impact on the price of a security can be
presumed and instead must be proven and measured before the
statement can be said to have defrauded the market in any material
way that is not simply speculative.122
Thus, for the largest class of potential plaintiffs (those
purchasers of a security who did not rely directly on the
defendant-analyst’s research report), the question of reliance is
119
See Basic Inc. v. Levinson, 485 U.S. 224, 241-47 (1988).
See Gross, supra note 32, at 672-73.
121
See, e.g., DeMarco v. Lehman Bros., 222 F.R.D. 243 (S.D.N.Y. 2004)
(questioning applicability of fraud-on-the-market theory in context of non-issuer
statements). In 2005, the Second Circuit indicated that it would review the
applicability of the fraud-on-the-market doctrine to non-issuer statements. Pamela A.
MacLean, Investor Suits May Face New Challenge, NAT’L L.J., July 18, 2005, at 1. But
the court ultimately based its subsequent ruling on a finding that the IPO market
should not be considered efficient, and not on whether non-issuer statements can serve
as the basis of a fraud-on-the-market theory of reliance. In re Initial Public Offerings
Sec. Litig., 471 F.3d 24, 42-43 (2d Cir. 2006). The court did opine, however, that “[i]t is
also doubtful whether the Basic [v. Levinson] presumption can be extended, beyond its
original context, to tie-in trading, underwriter compensation, and analysts’ reports.” Id.
at 43 (citing West v. Prudential Sec., Inc., 282 F.3d 935, 938 (7th Cir. 2002)).
122
DeMarco, 222 F.R.D. at 246-47. But see id. at 246 (acknowledging that
there is evidence to suggest that “some research analysts may have the ability to
influence market prices on the basis of their recommendations”); SEC, Securities
Analyst Recommendations, http://www.sec.gov/answers/analyst.htm (last visited Sept.
10, 2007) (noting that “[a]nalyst recommendations can significantly move a company’s
stock price”).
120
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
115
unsettled. But for investors who could prove that they did in
fact rely directly on an analyst’s reports, the reliance element
would clearly be met.
6. Loss Causation
Loss causation, for purposes of Rule 10b-5, is a “causal
link between the alleged misconduct and the economic harm
ultimately suffered by the plaintiff.”123 Ordinarily, loss
causation is calculated by examining the reaction of stock price
to the announcement or news rectifying the actionable
misstatement or omission in question.124 However, in most
analyst-conflict cases, the conflicts of interest and/or the
disingenuousness of opinions are discovered well after a
security’s price drops for other reasons.125 This makes it
exceedingly difficult for Rule 10b-5 plaintiffs to demonstrate
loss causation within the context of analyst misconduct.126
Notwithstanding this difficulty, however, the element of loss
causation poses only a factual/pleading problem and does not
present a conceptual obstacle as applied to research analyst
misconduct.
7. Duty
Most courts and commentators have presumed that a
duty to disclose must exist before an investor can recover
damages under § 10(b) premised upon the omission of a
material fact.127 This presumption is based on the general
understanding that one ordinarily does not have a duty to
speak, and thus a lawsuit alleging fraudulent silence requires
the presence of some pre-existing duty.128 The basis of such a
duty within the context of analyst omissions is unclear.129
123
Emergent Capital Inv. Mgmt., LLC v. Stonepath Group, Inc., 343 F.3d 189,
197 (2d Cir. 2003).
124
See Moses, supra note 18, at 108.
125
See id. at 108-09.
126
See id. at 109-10; Dura Pharm. v. Broudo, 544 U.S. 336, 346 (2005).
127
E.g., In re Enron Corp. Sec., Derivative & ERISA Litig., 235 F. Supp. 2d
549, 574 (S.D. Tex. 2002).
128
See John J. Clark, Jr. & William F. Alderman, Potential Liabilities in
Initial Public Offerings, at 319, 347 (P.L.I. Corp. Law & Practice, Course Handbook
Series No. 1518, 2005) (“A defendant cannot be held liable for a failure to disclose
information allegedly withheld from the market unless the defendant was under a duty
to disclose the information at the time.”); see also Chiarella v. United States, 445 U.S.
222, 234-35 (1980) (“Section 10(b) is aptly described as a catchall provision, but what it
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Other commentators, however, have pointed out that
the text of §10(b) does not require liability for an omission to be
conditioned upon a duty.130 As Professor Elizabeth Nowicki has
explained:
A close look at Section 10(b) . . . makes clear that Congress never
spoke of duty when crafting Section 10(b). There is no “duty”
prerequisite to the applicability of Section 10(b), nor is “duty” an
element of a successful Section 10(b) claim. . . . When Congress
drafted Section 10(b), Congress did not speak to the characteristics
of the target of Section 10(b)’s application. . . . All that matters is
that the . . . elements of a Section 10(b) claim are satisfied,
regardless of who is the defendant satisfying the elements.131
Regardless of whether such a duty exists, however, it is
fairly well established that once a party elects to make a
statement, Rule 10b-5 requires that such statement not omit
whatever material facts are necessary in order to make the
statement not misleading.132 Therefore, once an analyst decides
to communicate to investors (and potential investors) via a
research report, that report must not omit anything that would
cause its content to be misleading.133
B.
Analyst-Specific Regulatory Requirements
Prompted, in part, by the limitations of, and difficulties
of recourse to, Rule 10b-5 to address the problem of analyst
conflicts, the SEC and NASD have enacted regulations to
govern the conduct of research analysts: SEC Regulation AC
and NASD Rule 2711. As shall be seen, SEC Regulation AC
closes whatever loopholes might exist that would permit a
catches must be fraud. When an allegation of fraud is based upon nondisclosure, there
can be no fraud absent a duty to speak.”).
129
See Sullivan, supra note 16, at 428 (“The extent of an analyst’s duty to
disclose conflicts of interest to potential investors is unclear.”). It should be noted that
when the investor in question is a client of the analyst’s firm, the duty would appear to
exist. See id. As Professor Gross has explained, broker-dealers, including sell-side
analysts employed by them, “have a duty to deal fairly with their customers. This duty
of fair dealing encompasses the duty to give customers their undivided loyalty.” See
Gross, supra note 32, at 636.
130
See Nowicki, supra note 107, at 1314.
131
See id. at 1314, 1324. But see Sieland, supra note 15, at 550 (“[B]ecause
section 10(b) alleges fraud, there must be a duty extending from the defendant to the
plaintiff.”).
132
See THOMAS LEE HAZEN, THE LAW OF SECURITIES REGULATION § 12.19 (5th
ed. 2005).
133
Id. As explained previously, whether an analyst’s failure to disclose a
conflict of interest constitutes an actionable omission under Rule 10b-5 is not entirely
certain. See supra text accompanying notes 71-76.
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
117
research analyst to evade potential liability for issuing false
opinions and recommendations (by, for example, attempting to
rely on either the PSLRA’s safe harbor or the bespeaks caution
doctrine), and NASD Rule 2711 requires (of NASD members)
that companies adopt policies and procedures to address those
factors that give rise to an analyst’s conflicts of interest.
1. Regulation AC
SEC Regulation AC (“Analyst Certification”) requires
“all brokers, dealers, and certain other persons associated with
brokers and dealers to add certifications to their research
reports stating that the research analyst believes that the
report accurately reflects his or her personal views and
disclosing any compensation or other payments received in
connection with the recommendations or views.”134 Regulation
AC, therefore, addresses the dishonesty issue squarely, and
positively precludes a research analyst (via the certification
requirement) from setting forth an opinion or recommendation
that runs counter to his or her true beliefs—regardless of the
accuracy or completeness of the factual information contained
in the report, and regardless of any disclosure of the analyst’s
conflict(s) of interests. In light of Regulation AC, a research
analyst could not issue a fraudulent opinion and successfully
hide behind the fig leaf of full disclosure in an attempt to evade
sanction.
2. Rule 2711
Implemented in 2002 by the NASD, following SEC
approval, Rule 2711 mandates that NASD members implement
certain structural safeguards to diminish a research analyst’s
potential conflicts of interest.135 These safeguards include
prohibitions on promises of favorable research coverage by
investment banks to their clients (or potential clients),
prohibitions on submission of research reports to covered
company’s before publication, and prohibitions on investment
banking “supervision or control” over research analysts.136 Also
prohibited is basing analyst compensation on “any relationship
between the analyst’s research reports and investment banking
134
135
136
See Fisch & Sale, supra note 10, at 1069.
See Hurt, supra note 29, at 779-81.
See id. at 780-81.
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clients.”137 Additionally, Rule 2711 requires an analyst to
disclose certain conflicts of interest in his or her research
reports, but it does not require the analyst to affirmatively
vouch for the authenticity of his or her opinions and/or
recommendations, as does SEC Regulation AC.138 Thus, Rule
2711 attempts to minimize the fundamental conflicts of interest
that give rise to research analyst misconduct via structural
changes and disclosure, but stops short of demanding that an
analyst certify the honesty and truthfulness of his or her
published recommendations and opinions.
C.
The Need for a Normative Analysis
Due to questions regarding, among other things, the
actionability of opinions in general, the materiality of analyst
opinions in particular, and the applicability of the fraud-on-themarket presumption in place of individualized reliance, Rule
10b-5’s ability to serve as a vehicle for imposing liability on
analysts for misstated opinions is questionable. This
questionability gave rise to the flurry of regulatory activity that
brought about Regulation AC and Rule 2711—each designed to
fill the perceived gap created by Rule 10b-5’s apparent inability
to police analyst conflicts of interest. But this begs an
interesting question: is Rule 10b-5’s apparent inability truly a
shortcoming? Perhaps the failure of the traditional elements of
Rule 10b-5 to cover the phenomenon of analyst fraud suggests
that such fraud ought not be subject to sanction. And, if not,
then Regulation AC and Rule 2711 could arguably cause more
harm than good. For these and similar questions, a normative
lens is needed through which securities law and policy can be
analyzed.
III.
NORMATIVE ANALYSIS OF SOLUTIONS TO RESEARCH
ANALYST CONFLICTS OF INTEREST
The inadequacy of Rule 10b-5 to address the issue of
analyst conflicts of interest invites a discussion of other
potential solutions to this perceived problem. It also invites a
discussion of whether any solution should be adopted at all.
The business of dividing wheat from chaff, of judging various
solutions for appropriateness and efficacy, is obviously
137
138
See id. at 781.
See id. at 781-82; 17 C.F.R. § 242.501 (2005).
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predicated upon some standard (or set of standards) that
enables such judgments to be made. Economic analysis has
been heavily relied upon by those considering questions of
securities law, and such reliance seems most reasonable given
the direct role of U.S. securities law in regulating an important
part of the U.S. (and, indeed, the world’s) economy. In keeping
with this practice, this Part shall provide an economic analysis
of the problem of analyst conflicts (and of solutions proposed
thereto). But in a break from the common, this Part shall also
review the problem of analyst conflicts from another source of
standards and norms—those of the natural law tradition. As
indicated at the outset of this Article, this demonstration shall
reveal that a natural law approach to the problem of analyst
misconduct yields results and recommendations that comport
better with the philosophy of U.S. securities regulation than
does the law and economics approach.
Preliminary to a comparison of economics-based and
natural law-based approaches to the problem of analyst
conflicts, and an assessment of how these approaches comport
with the underlying philosophy of U.S. securities regulation, is,
of course, an identification of this underlying philosophy. Thus,
this Part commences with a brief review of the history of U.S.
federal securities regulation and an identification of the values
that undergird the regulatory approach.139
A.
Objectives and Values of U.S. Securities Laws
On the heels of the Stock Market Crash of the 1929 and
the Great Depression that followed, Franklin D. Roosevelt ran
a 1932 presidential campaign that included an attack on Wall
139
The federal securities laws (as do virtually all substantive laws) both
reflect and effectuate certain values or norms. See H.L.A. HART, THE CONCEPT OF LAW
203-04 (2d ed. 1994) (“The law of every modern state shows at a thousand points the
influence of both the accepted social morality and wider moral ideals.”); see also
CHARLES E. RICE, 50 QUESTIONS ON THE NATURAL LAW 95 (1999). Thus, when
ambiguities in the law must be resolved, or when decisions must be made regarding
the appropriate scope or application of the law, it is inevitable, fitting, and proper to
consult a broader source of norms to supplement, to the extent necessary, the moral
framework of the particular law in question. Cf. id. at 95 (observing that “all human
law enforces morality of some sort . . . . The question is therefore not whether the
human law should enforce morality but rather which morality it will, and should,
enforce.”); Jack Balkin, The Proliferation of Legal Truth, 26 HARV. J.L. & PUB. POL’Y 5,
8 (2003) (“[L]aw does shape what people believe and what they understand. Law has
power over people’s imaginations and how they think about what is happening in social
life. Law in this sense is more than a set of sanctions. It is a form of cultural software
that shapes the way we think about and apprehend the world.”).
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Street’s “unscrupulous money changers” who knew “only the
rules of a generation of self-seekers.”140 He pledged to “restore
[the] temple to the ancient truths,” including “honesty,”
“honor,” “the sacredness of obligations,” “faithful protection,”
and “unselfish performance.”141 Only upon such a restoration,
Roosevelt argued, could investor confidence, and thus the
capital markets, be resuscitated.142
Shortly after his inauguration, President Roosevelt
went to work on the “moral reform of Wall Street,” and early
SEC officials sought to restore “traditional standards of right
and wrong.”143 In Congress he had a willing partner and, in
short time, the 1933 Securities Act and the 1934 Securities
Exchange Act were passed.144 In passing this legislation,
Congress, as one commentator has remarked, “was attempting
to improve the morality of the marketplace.”145 And as John H.
Walsh (former Chief Counsel in the SEC’s Office of Compliance
Inspections and Examination) explains, the moral vision that
inspired the Securities Acts were not lost upon those initially
chosen to oversee the newly implemented regulatory regime:
•
Baldwin B. Bane, Chief of the Securities Division of
the Federal Trade Commission (the agency initially
responsible for administering the Securities Act),
stated that the recently passed securities legislation
was “based on a ‘moral ideal.’ It was the ‘realization
that [the economy’s] ills [were] due . . . to the
weakening of [the nation’s] moral fibre, [and] to easy
temporizing with traditional and tried standards of
right and wrong.’”146
•
Joseph P. Kennedy, the first Chairman of the SEC,
said that the SEC’s most important objective was
140
John H. Walsh, A Simple Code of Ethics: A History of the Moral Purpose
Inspiring Federal Regulation of the Securities Industry, 29 HOFSTRA L. REV. 1015, 1036
(2001).
141
Id.
142
See id.
143
Id. at 1037-42, 1070.
144
Id. at 1042-52.
145
David Ferber, The Case Against Insider Trading: A Response to Professor
Manne, 23 VAND. L. REV. 621, 622 (1970).
146
See Walsh, supra note 140, at 1054 (alterations in original) (citations
omitted).
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“spiritual,” and that it sought “to prevent vice” in the
securities industry.147
•
John Burns, the first General Counsel of the SEC,
proclaimed that the “failure of morals and religion to
put a bridle to the acquisitive motive[s] of . . .
business . . . made the intervention of the law
inevitable.”148
A moral prescription for economic ills was not seen as
inapposite given the understanding that a more ethical
securities industry would improve investor confidence and, in
turn, improve the capital markets.149 As the drafters of the 1934
Securities Exchange Act explained:
[i]f investor confidence is to come back to the benefit of exchanges
and corporations alike, the law must advance. . . . [I]t becomes a
condition of the very stability of that society that its rules of law and
of business practice recognize and protect . . . ordinary citizen’s
dependent position. Unless constant extension of the legal
conception of a fiduciary relationship—a guarantee of “straight
shooting”—supports the constant extension of mutual confidence
which is the foundation of a maturing and complicated economic
system, easy liquidity of the resources in which wealth is invested is
a danger rather than a prop to the stability of that system. When
everything everyone owns can be sold at once, there must be
confidence not to sell. Just in proportion as it becomes more liquid
and complicated, an economic system must become more moderate,
more honest, and more justifiably self-trusting.150
From this statement can be gleaned the interrelated
concerns and insights of the architects of the U.S. securities
regulatory regime. Investor protection and the health of the
capital markets were objectives of paramount concern;
necessary to the ascertainment of these objectives was the
restoration of certain virtues to the U.S. economic system—
namely, moderation, honesty, and trustworthiness.151 More
recently, the Second Circuit has opined that Congress passed
147
Id. at 1053.
Id. at 1052-53.
149
See id. at 1036.
150
Nowicki, supra note 107, at 1312 (quoting Report to Accompany S. 3420,
Federal Securities Exchange Act of 1934, 72d Cong., S. Rep. No. 792 (Apr. 17, 1934))
(alterations in original).
151
See id. As recently as 1997 Congress echoed the fundamental purposes of
U.S. securities regulation: “to protect investors and to maintain confidence in the
securities markets, so that our national savings, capital formation and investment may
grow for the benefit of all Americans.” Joint Statement, supra note 93, at 41.
148
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the 1934 Securities Exchange Act “to prevent inequitable and
unfair practices and to insure fairness in securities
transactions generally, whether conducted face-to-face, over
the counter, or on exchanges”152—thereby summarizing a
primary purpose of the securities laws as the achievement of
“fairness.” 153
Pursuant to the wisdom that “[s]unlight is said to be the
best of disinfectants; electric light the most efficient
policeman,”154 Congress opted, primarily, for a regime of
mandatory disclosure to achieve its legislative ends.155 As one
commentator has explained:
When promulgating the federal securities acts, Congress examined
different theories of securities regulation, and ultimately chose a
licensing scheme that embraced a fundamental purpose . . . to
substitute a philosophy of full disclosure for the philosophy of caveat
emptor and thus achieve a high standard of business ethics in the
securities industry.156
Full disclosure, however, for all its fundamentality to
the U.S. approach to securities regulation is, of course, not the
sole mechanism relied upon by Congress to protect investors.
At the forefront of enactments supplementing the disclosure
regime are Section 10(b) of the 1934 Securities Exchange Act
and SEC Rule 10b-5 promulgated thereunder.157 These
antifraud provisions go beyond disclosure alone and directly
ban the issuance of false statements and deceptive omissions in
securities trading—regardless of whether these statements and
omissions concern mandatorily disclosed information.158 Thus,
152
SEC v. Tex. Gulf Sulphur Co., 401 F.2d 833, 847-48 (2d Cir. 1968).
Id.
154
LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY, AND HOW THE BANKERS USE
IT 92 (1914).
155
See Leonard J. DePasquale, Helping to Ameliorate the Doctrine of Caveat
Emptor in the Securities Market: Reves v. Ernst & Young, 26 NEW ENG. L. REV. 893,
896 (1992).
156
Id. (internal quotations omitted) (alterations in original).
157
See supra Part II.A.
158
It could be asserted that the prevailing modern approach to securities
regulation cares less about truthfulness per se in light of the advent of the bespeaks
caution doctrine and the PSLRA’s safe harbor (especially within the context of “soft”
information such as opinions and forecasts). However, one must be careful not to read
too much into the safe harbor and bespeaks caution doctrine. Although they may
technically grant a “license to lie,” see Brooks & Wang, supra note 85, at 4, they more
properly are read as efforts at encouraging the dissemination of non-required
disclosure by creating a zone of safety to protect against litigation and liability. Akin to
“good Samaritan laws,” the purpose of which is not to protect those who would literally
kick a victim while he or she was down, but rather to free would-be rescuers from the
153
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although eschewing an approach of requiring minimum
solvency standards for companies whose securities are
purchased and sold (which characterized the approach taken by
state securities laws at the time), Congress did require that
investors be provided with certain key pieces of information,
and that all the information furnished to investors (whether
required or not) in connection with the purchase or sale of
security be complete and accurate.159
Applying the objectives, values, and philosophy of the
securities laws to the question of research analyst conflicts
certainly confirms that the issue is correctly identified as a
problem to be addressed. Investors have been hurt, confidence
in the market has been compromised, and whether long-term
harm to economic growth shall result from this remains to be
seen. As for the most appropriate response to this problem, we
shall now turn to the analytic tools of the economics and
natural law reasoning.
B.
Law and Economics Analysis
1. Law and Economics Generally
One of the most powerful approaches in the analysis of
law in recent decades is that offered by economics, commonly
referred to as “law and economics” or an “economic analysis of
the law.” Few such approaches have had such impact on legal
scholarship and thought, and few subjects are more
risk of liability, the safe harbor and bespeaks caution doctrine aim at removing the
liability-risk disincentive against those who, in good faith, would like to go beyond the
bare minimum disclosure requirements of the securities laws but are fearful of doing
so. Understanding this context helps disabuse one of any notion that Congress and the
courts have moved away from a model of investor protection based on the coupling of
disclosure with an antifraud rule; rather, Congress and the courts are merely seeking
to promote the release of supplemental, “soft information” by making it more difficult
to hold good faith suppliers of such information liable merely for estimating or
forecasting incorrectly. Indeed, Congress’s expressed purpose in passing the PSLRA’s
safe harbor was, in part, to “enhance market efficiency.” Joint Statement, supra note
93, at 52. As the promulgation of false or misleading information does not enhance
market efficiency (and may, in fact, harm market efficiency, see Fisch & Sale, supra
note 10, at 1086), the arguable protection of authors of such information from liability
should be interpreted as a necessary evil at best, and not as a statement of change in
philosophy or policy.
159
See Steven L. Schwarcz, Rethinking the Disclosure Paradigm in a World of
Complexity, 2004 U. ILL. L. REV. 1, 26-27.
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appropriately analyzed under the lens of economics than the
securities laws.160
The economic approach to the law embraces, as given,
the fundamental premises of the free market economy: that
individuals are rational beings who predictably pursue their
self-interest and, in doing so, generally serve to maximize
society’s creation of wealth.161 The objective of law, therefore
(under a law and economics approach), is to establish rules that
assist society to so function (largely by addressing market
failures and minimizing transaction costs) in order to maximize
societal wealth (often referred to as promoting “efficiency”).162
This line of reasoning has led some scholars to argue that
“properly understood, securities regulation is not a consumer
protection law,” but rather a regime concerned with
“facilitate[ing] a competitive market for information traders.”163
Thus, applied to the research analyst conflicts-ofinterest issue, the law and economics approach frankly
suggests disregarding the promotion of virtue, the extirpation
of vice, even “investor protection” as goals per se, and instead
aims simply at increasing market efficiency by reducing
transaction costs and correcting for market failures.164
2. Law and Economics Applied
In order to facilitate a law and economics review of the
research analyst conflict-of-interest problem, solutions (both
potential and applied) to the problem have been sorted into
160
Cf. David B. Sentelle, Law and Economics Should Be Used for Economic
Questions, 21 HARV. J.L. & PUB. POL’Y 121, 121 (1997) (arguing that the judiciary’s use
of economic analysis should be limited to questions properly pertaining to economics).
161
See A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 1011 (3d ed. 2003); J.M. ROBERTS, THE PELICAN HISTORY OF THE WORLD 675 (1983).
162
See Francesco Parisi & Jonathan Klick, Functional Law and Economics:
The Search for Value-Neutral Principles of Lawmaking, 79 CHI.-KENT L. REV. 431, 44445 (2004); Annalise E. Acorn, Valuing Virtue: Morality and Productivity in Posner’s
Theory of Wealth Maximization, 28 VAL. U. L. REV. 167, 171 (1993); POLINSKY, supra
note 161, at 7.
163
Zohar Goshen & Gideon Parchomovsky, The Essential Role of Securities
Regulation 1 (Am. Law & Econ. Ass’n 15th Annual Meeting Working Paper No. 9,
2005), available at http://law.bepress.com/alea/15th/art9. Lending anecdotal support to
this position (within the context of research reports, at least), is the proclamation of at
least one prominent analyst that her audience is not the individual investor, but rather
“professional money managers” and institutions. See Sieland, supra note 15, at 545.
164
See POLINSKY, supra note 161, at 7. A dichotomy exists between positive
(purely descriptive) and normative (prescriptive) approaches. See id. at xvii. As may
have already been discerned, the approach taken (and critiqued) in this Article shall be
normative (prescriptive).
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four general categories: (1) a laissez-faire approach, (2) an
antifraud rule, (3) mandatory disclosure, and (4) a structural
approach. The merit of each of these categories shall be
assessed, in turn, from a law and economics perspective.
a. Laissez-Faire Approach
Under a laissez faire approach to the problem of analyst
misconduct, no legal rule would be adopted to address the
conflict of interest problem. Instead, the market would be
expected to most efficiently address this issue.165
As there are costs associated with the disclosure of
information, any fixed rule regarding disclosure is bound to
require either too little or too great an amount of disclosure.166
This is because rules are bound to be imperfect, if for no other
reason than the fact that rules are fairly static and the
demands of the market are dynamic.167 Sub-optimal levels of
disclosure extract an unnecessary cost on disclosing parties
and, consequently, on the market as a whole. Assuming a
properly functioning, competitive market, the optimal level of
disclosure, just as the optimal price of a good or service, should
be set by the market through competition.168
Much literature has been generated over the issue of the
optimal level of corporate disclosure under the securities
laws.169 The focus of this literature, however, has almost
invariably been disclosure on the part of issuers of securities
for the purpose of attracting investment (either primarily,
through disclosure sufficient to support an offering, or
secondarily, through disclosure sufficient to maintain a healthy
secondary market for the issuer’s securities).170 The need to
attract investment (and maintain a healthy secondary market)
creates competition among corporate issuers for investors.171
This competition encourages issuers to disclose the optimal
165
Cf. Giuseppe Dari Mattiacci, Tort Law and Economics, in ECONOMIC
ANALYSIS OF LAW: A EUROPEAN PERSPECTIVE 6 (forthcoming).
166
See Stephen M. Bainbridge, Mandatory Disclosure: A Behavioral Analysis,
68 U. CIN. L. REV. 1023, 1034 (2000).
167
Cf. David Van Drunen, Aquinas and Hayek on the Limits of Law: A
Convergence of Ethical Traditions, J. MARKETS & MORALITY, Fall 2002, at 315, 327
(observing the inability “to legislate a system of law that cleanly resolves all future
matters of conflict” ).
168
See id.
169
See, e.g., id.; see also Palmiter, supra note 78.
170
E.g., Palmiter, supra note 78.
171
See id.
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level of information necessary to investors—that is, just enough
information to attract the required amount of investment.172
The provision of less information would cause investors to
eschew the putative issuer in favor of competing issuers’
securities; the provision of more information would be
unnecessary and therefore wasteful at best.173 As for the quality
of the information provided (in terms of accuracy and honesty),
the market would punish an issuer who disclosed false or
misleading information by devaluing the price of its future
offerings on account of a lack of trust. Thus, there is an
economic incentive for issuers to make disclosures that are
accurate as well as sufficient.
With regard to research analyst reporting, a threshold
question from a law and economics perspective is whether
circumstances exist so as to justify departing from the
conclusion that market forces should result in an optimal state
of affairs. Put differently, one must consider whether research
reporting takes place within a properly functioning,
competitive market—an assumption that forms the basis for
the law and economics conclusion that market forces alone
should maximize societal wealth. The existence of serious
conflicts of interest challenges these assumptions.174
As explained previously, sell-side analyst reports are
usually provided free of charge to a bank’s customers.175 Thus,
such reports are part of the total mix of goods and services that
banks use to attract and maintain investor clients. The greater
the value that the market for investors assigns to these
reports, the more effective these reports will be in attracting
and maintaining investor clients and, consequently, all things
being equal, the more competitive their issuing bank will be.
However, as has also been previously discussed, analyst
reports serve (or traditionally have served) at least one
additional purpose: the promotion of the securities offerings of
a bank’s investment-banking clients in order to attract and
maintain such clients.176 Again, the investment-banking market
will assign a value to these reports relative to their worth to
investment banking clients, and the higher the value, all
172
See id.
See id.
174
See generally John C. Coffee, Jr., Market Failure and the Economic Case
for a Mandatory Disclosure System, 70 VA. L. REV. 717 (1984).
175
See supra text accompanying note 13.
176
See supra Part I.B.
173
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things being equal, the more competitive the investmentbanking franchise of the bank issuing the research reports will
be.
Conventional wisdom posits that the cross-purposes
served by research reports give rise to a classic conflict of
interest.177 However, scrutiny reveals that the dual purposes of
the research reports arguably work in tandem to compel
optimal levels of disclosure and accuracy. For what
distinguishes a research report from mere marketing material
is its aura of objectivity and the quality of data contained
therein (especially the underlying factual data). The only
divergence created by the different purposes of research
reporting is that whereas investor clients want objective,
honest research reports, investment-banking clients care more
about the perception of objective, honest research reports
(coupled with their more pressing desire for positive research
coverage). Since, presumably, the best way of developing and
maintaining such a perception is to actually publish objective,
honest research reports, banks have an incentive to act
accordingly for the benefit of each identified category of clients.
To the extent that an analyst is caught behaving dishonestly,
his or her personal integrity would be tarnished, along with
(possibly) the integrity of the bank for which he or she works.
The result would be a decline in the market value of the bank’s
research reports to both investor and investment-banking
clients. In short, as “[r]eputation remains the lifeblood for [the
financial
industry]
firm,
often
overwhelming
other
incentives,”178 it appears as though the market should
sufficiently check egregious analyst misbehavior.
And to the extent that analysts spin or skew their
reports in order to satisfy their banking clients, it could be
argued that the cost of this dishonesty is more than offset by
the tremendous market benefits provided by the voluminous
accurate financial and statistical data that research analysts
unearth and include in their reports.179 Moreover, research
suggests that market participants are largely aware of this
lack of complete candor on the part of sell-side research
analysts, as reports issued by bank-affiliated analysts are
valued less by individual investors than reports issued by
177
See Fisch & Sale, supra note 10, at 1047.
See Palmiter, supra note 78, at 112.
179
Perhaps such spin or skew could be analogized to the commercials that one
must endure in order to enjoy the desired content contained in free radio broadcasts.
178
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independent research firms.180 This is despite the fact that, as
research also suggests, analyst reports issued by bankingaffiliated analysts are of higher quality than reports issued by
independent research firms.181 Additionally, through the use of
brokers, investors should be able to avoid investing on the basis
of unsupportable recommendations and instead invest upon
quality factual data. Thus, it could be argued that the conflicts
of interest commonly alleged are largely illusory and, in any
event, result in negligible harm to the market.
However, notwithstanding the market incentives in
favor of honest research reporting, and notwithstanding the
ability of investors (and brokers) to discount for the possibility
of bias, the fact remains that certain analysts have published
persuasively dishonest research reports, and apparently
certain individual investors, perhaps unaware of the conflicts
of interest on the part of the researcher whose report they are
reading, claim to have placed unwarranted (in retrospect)
levels of reliance on these reports. Additionally, some scholars
have argued that false opinions and recommendations are not
properly discounted by the market, but rather do harm to the
accuracy of stock pricing (and therefore undermine market
efficiency).182
But simply with regard to the issue of misled investors:
can such investors be sacrificed even if this redounds to the
greater good of the securities market as a whole (that is, even if
the optimal level of disclosure and honesty can be established
by the market)? Perhaps here the potential advice of the
economist and the mandates of the securities laws most clearly
diverge. For it was Congress’s explicit desire to displace the
“laissez-faire” model that predated the 1933/1934 Securities
Acts with one that mandated fixed disclosure and required
certain minimum levels of investor protection.183 A laissez-faire
approach, therefore, fails to honor either concern. Thus, even if
such an approach may indeed maximize wealth (itself a goal of
the securities laws), it does so at the expense of other, more
pressing goals (primarily, investor protection), and is in
contravention of the fundamental values (such as honesty and
fairness) inherent in the securities laws.
180
181
182
183
See Moses, supra note 18, at 90-91.
See Jacob et al., supra note 11, at 32.
See Fisch & Sale, supra note 10, at 1086.
See supra text accompanying note 156.
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b. Antifraud Rule Approach
One alternative to a laissez-faire approach would be the
imposition of an antifraud rule applicable to fraudulently
issued analyst opinions.184 Whether via the imposition of civil,
regulatory, or criminal liability, the rule would simply punish
(in one way or another) a research analyst who sets forth
opinions and/or recommendations that he or she does not
actually believe. Because of their functional equivalency,
certification requirements, such as Regulation AC, are included
in this category,185 along with Professors Fisch and Sale’s
suggestion that a “duty of reliability” for research analysts be
recognized.186 The rule could also force research analysts to
disclose their conflicts of interest, out of fear that neglecting to
do so could constitute a fraudulent omission.187
An antifraud rule could reasonably be expected to
reduce the issuance of false opinions on the part of analysts, as,
in economic terms, it increases the cost of issuing such opinions
via the threat of punishment and/or liability for such
opinions.188 But, as indicated earlier, market forces alone
should also serve to reduce, to an extent, the issuance of false
opinions.189 Thus, the marginal benefit of an antifraud rule,
with regard to its role in reducing the issuance of false
opinions, appears likely to be small.
A more substantial benefit, perhaps, flowing from an
antifraud rule would be the enhanced credibility (and thus
increased value) it would arguably bestow upon analyst
opinions. For in the presence of an antifraud rule applicable to
analyst opinions, investors would be able to rely more heavily
upon such opinions, thereby increasing the value of these
opinions.190
Weighed against the potential benefits of an antifraud
rule applicable to analysts are its significant costs: the
184
See, e.g., Goshen & Parchomovsky, supra note 163, at 27-29.
See supra Part II.B.1.
186
See Fisch & Sale, supra note 10, at 1081-88 (recommending liability for
research analysts whose reports contain recommendations “that would not have been
issued by a reasonable person”).
187
See supra Part II.A.1. For a discussion of the costs and benefits of
compelling such disclosure, see infra Part III.B.2.c.
188
See, e.g., Goshen & Parchomovsky, supra note 163, at 27-29.
189
See supra Part III.B.2.a.
190
See Frank H. Easterbrook & Daniel R. Fischel, Mandatory Disclosure and
the Protection of Investors, 70 VA. L. REV. 669, 673-80 (1984) (discussing economic effect
of antifraud rules).
185
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potential chilling effect on the issuance of research reports that
such a rule would likely have.191 Exposure to potential liability
for fraudulent opinions (or material omissions) in research
reports can be expected to decrease the issuance of such
reports, by both banks responsible for the issuance of reports
that contain exaggerated or otherwise dishonest statements of
opinion and by banks responsible for the issuance of reports
that are completely genuine. With regard to the latter, an
inevitable fear will develop on the part of banks that
statements of opinion in research reports, even if entirely
honest and truthful, may nevertheless subject the bank to
litigation if time were to demonstrate that the opinion was illfounded or mistaken. Regardless of the likely failure of such
litigation (as we are assuming here that the opinions in
question were genuine and published in good faith), the mere
commencement of even an unsuccessful litigation can be
expensive and time consuming, and this risk of litigation
becomes a cost associated with the promulgation of research
reports.192 Of course, this is a cost that accompanies practically
any antifraud rule and not one unique to its application within
this context. However, given the precarious economics of the
research analyst business model, under which the full value of
research reports to the marketplace arguably exceeds the
revenues they are able to generate for their sponsoring firms,
the additional costs imposed by an antifraud rule could tip the
balance against their continued sponsorship to the detriment of
the market as a whole.193
With regard to research reports that contain
disingenuous statements of opinion, an antifraud rule will, of
course, deter the publication of these as well. And although
that is instinctively viewed as a good thing, additional scrutiny
will reveal that even this effect is not without certain potential
negative consequences. As has been discussed previously,
banks have traditionally issued research reports with two key
191
See Joint Statement, supra note 91, at 52-53 (expressing concern over the
“muzzling effect of abusive securities litigation”).
192
See S. Rep. No. 104-98, at 4 (1995), as reprinted in 1995 U.S.C.C.A.N. 679,
683 (Senate Report accompanying passage of PSLRA addressing problem of “frivolous
‘strike’ suits alleging violations of the Federal securities laws in the hope that
defendants will quickly settle to avoid the expense of litigation”: “These suits, which
unnecessarily increase the cost of raising capital and chill corporate disclosure, are
often based on nothing more than a company’s announcement of bad news, not
evidence of fraud.”).
193
Cf. Stephen J. Choi & Jill E. Fisch, How to Fix Wall Street: A Voucher
Financing Proposal for Securities Intermediaries, 113 YALE L.J. 269, 274-76 (2003).
2007]
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audiences in mind: their investor clients and their investment
banking clients.194 Since these reports are ordinarily provided
free of charge, the costs of their production are indirectly
covered by the revenues they assist in generating from each of
these client groups.195 As precluding exaggeration, hyperbole,
and other disingenuous statements of opinion diminishes the
value of these reports to the bank’s investment banking clients,
banks may be less inclined to issue these reports,196 thereby
reducing the dissemination of the otherwise valuable
accompanying factual information regarding the covered
company. In short, it might be better in general for the market
to have more reports circulating (including tainted reports that
contain an admixture of accurate factual data alongside
disingenuous opinions and recommendations) versus a smaller
number of completely trustworthy (or more trustworthy)
reports.197
These concerns suggest that, from an economics
perspective, efforts to curb research analyst dishonesty resist
resorting to antifraud rules.198 But the absence of an antifraud
rule directed against dishonest analysts seems incongruous
with the philosophy of federal securities regulation on at least
two grounds. First, given the importance of honesty, fairness,
and trustworthiness to the drafters of the U.S. Securities
Acts, the absence of any rule prohibiting fraudulent misconduct
on the part of analysts, so as to allow a modicum of dishonesty
in research reporting, would appear to be a glaring
inconsistency. Second, reliance on market mechanisms to
minimize fraudulent analyst misconduct, although wellfounded, nevertheless appears insufficient; although market
mechanisms would most likely serve to protect most investors,
knowledge of the fact that an antifraud rule would serve to
further reduce fraudulent misconduct, and serve to protect all
(or at least more) investors199 from such misconduct, makes it
194
See supra Part III.B.2.a.
See Choi & Fisch, supra note 193, at 274-76 (2003).
196
Unless, perhaps, their enhanced value to their investor clients, as a result
of the antifraud rule, outweighs this diminishment in value to the investment banking
clients. See Goshen & Parchomovsky, supra note 163, at 28-29.
197
But see Fisch & Sale, supra note 10, at 1086 (arguing that analyst reports
that contain misstatements of opinions distort stock prices (rather than enhance
market efficiency)).
198
But see Palmiter, supra note 78, at 135.
199
Either prospectively, via the reduction of fraud, or retrospectively, via the
provision of clear and certain remedies to victims of fraud.
195
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difficult to square the absence of such a rule with the strong
(if not overriding) concerns over investor protection that
characterize the U.S. regime of securities regulation.
c. Mandatory Disclosure
Another approach to the problem of analyst conflicts is
to mandate the disclosure of conflicts of interest.200 In the
absence of an antifraud rule extending to analysts’ opinions,
mandatory disclosure could approximate a regime in which the
bespeaks caution doctrine and/or the safe harbor of the PSLRA
foreclosed liability for those analysts who issued false or
misleading opinions, but who also fully (and truthfully)
disclosed their conflicts of interest.201 Coupled with an antifraud
rule, mandatory disclosure is likely to have little marginal
effect if, as expected, the antifraud rule would serve to compel
disclosure of conflicts of interest out of a fear that
nondisclosure of such conflicts would be actionable.202 However,
if, as suggested, the nondisclosure of an analyst’s conflicts of
interest might not actually be properly considered an omission
which makes the other statements contained in the research
report misleading,203 then a disclosure rule would close this
loophole and clearly expose to liability those analysts who did
not disclose their conflicts (similar to the effects of Regulation
AC and NASD Rule 2711).204
Although mandatory disclosure has been widely
criticized from an economics perspective as generating
inefficiencies,205 some have justified mandatory disclosure from
an economics perspective as a means of reducing wasteful
“agency costs”206 and duplicative research efforts on the part of
200
See Gross, supra note 32, at 661-62.
See supra Part IIA.2.
202
See supra Part III.B.2.b.
203
See supra text accompanying notes 73-76.
204
See supra Part II.B.
205
See supra Part III.A.1
206
See Fisch & Sale, supra note 10, at 1039. Agency costs are those costs
associated with, among other things, monitoring and verifying the behavior of those
individuals who are purportedly acting on one’s behalf. These costs are not otherwise
productive, and the benefit of their reduction via a rule of mandatory disclosure would
rebound to the market as a whole. See id.; see generally Eric A. Posner, Agency Models
in Law and Economics (U Chi. Law Sch. John M. Olin Law & Econ. Working Paper No.
92, 2000), available at http://papers.ssrn.com/paper.ta?abstrat_id=204872.
201
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investors.207 And unlike mandatory disclosure in the context of
a stock issuer’s financial reporting (which is the focus of most
economic-based criticism concerning mandatory disclosure
rules), the cost of disclosing the existence of possible conflicts of
interest on the part of a research analyst would be relatively
small. A rule requiring mandatory disclosure of analyst
conflicts would reduce the need for investors to do their own
investigation regarding such conflicts before relying upon
research reports.208 The greater and more specific the
mandatory disclosure, the less work an individual investor
would have to do (and the less agency costs he or she would
have to bear) to uncover the same information. And because
the disclosure contained in one report could, arguably, reduce
agency costs for thousands of individual investors, the
argument in favor of such mandatory disclosure is compelling:
the costs of its inclusion in the report would appear to be
outweighed by the benefits bestowed upon the investing
public.209
As previously discussed,210 a regime of mandatory
disclosure is precisely the means selected by Congress to
regulate the securities industry. Therefore, requiring analysts
to disclose their conflicts of interest would be a solution that
apparently passes muster under the philosophy of U.S.
securities regulation and, as has been seen, can be justified
from an economics perspective.
d. Structural Approach
A fourth approach suggested by some is structural: to
attack the analyst’s conflict of interest directly by forcing
structural changes to the securities industry that minimize the
factors giving rise to the conflict.211 This is the approach
embodied in NASD’s Rule 2711.212
Obviously, the structural approach proceeds under the
assumption that by eliminating conflicts of interest, research
analysts will be made more independent and the quality of
207
See Stephen J. Choi, Behavioral Economics and the Regulation of Public
Offerings, 10 LEWIS & CLARK L. REV. 85, 89 (2006).
208
See Posner, supra note 206, at 1.
209
See Goshen & Parchomovsky, supra note 163, at 24-27.
210
See supra Part III.B.1.
211
See, e.g., Sullivan, supra note 16, at 433.
212
See supra Part II.B.2.
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opinions and recommendations contained in their research
reports will improve. Although this assumption may be
intuitive, at least one study suggests that analysts at
independent research firms make earnings forecasts that are
inferior to those of analysts associated with investment
banks.213 This may be because bank-affiliated researchers have
more resources at their disposal214—resources generated, in
part, by the bank’s calibration of their research reports to
optimize value among both their investor clients and
investment banking clients.215 And by inefficiently decreasing
the value that a bank can obtain for its banking clients by
removing (or reducing) investment banking considerations
from the production of research reports, a structural approach
may share the same basic deficiency of the antifraud rule
approach: it decreases the value of analyst reporting to banks,
which in turn will diminish the sponsorship of reporting on the
part of banks, ultimately decreasing the flow of valuable
information to the market.216 Thus, as with an antifraud rule, a
structural remedy would most likely be disfavored under a law
and economics approach. This is because other solutions
(namely, either a market solution or a rule mandating
disclosure of conflicts) appear to offer similar benefits, while
imposing lower potential costs on the securities markets.
Reliance on a structural remedy to the problem of
analyst conflicts is neither compelled, nor precluded, by the
philosophy of U.S. securities regulation. As Congress opted
largely for disclosure and antifraud rules in promulgating a
scheme of securities regulation, it cannot be said that failure to
promote a structural solution is at odds with the U.S.
regulatory approach. On the other hand, the Glass-Steagal Act
(the Banking Act of 1933), which precluded commercial banks
from engaging in investment banking and brokerage activities,
provides clear precedent for a structural remedy were such a
remedy deemed advisable.217
213
See Jacob et al., supra note 11, at 32; see also Choi & Fisch, supra note 193,
at 274-76, 285.
214
See Jacob et al., supra note 11, at 32.
215
See supra Part III.B.2.a.
216
See Choi & Fisch, supra note 193, at 274 (“Eliminating intermediary
conflicts is a flawed solution . . . . Someone has to pay for intermediary services, and
eliminating conflicts may block an important source of financing.”).
217
Banking Act of 1933, ch. 89, 48 Stat. 162 (1933).
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
135
3. Summary of the Law and Economics Approach
A law and economics approach could be expected to
embrace a laissez-faire approach to analyst fraud, which would
equate to a regime under which Rule 10b-5 liability would not
be applicable to research analyst misstatements of opinion, and
under which Regulation AC and Rule 2711 would not be
present. That said, a rule of mandatory disclosure, under which
analysts would be obliged to disclose their conflicts of interest,
could be justified under law and economics grounds, given the
benefits of such disclosure in comparison to its costs. A general
antifraud rule applicable to analyst opinions and
recommendations would be disfavored due to its chilling effect
on analyst speech (both generally and, arguably, even with
regard to the skewed opinions that help make the preparation
and promulgation of research reports beneficial to the banks
that issue them), and a structural remedy would most likely be
rejected as violating the presumptively most efficient way (that
is, the market-derived way) of generating research reports.
C.
Natural Law Analysis
As previously acknowledged, the securities laws invite
an economically oriented review by virtue of the important
role they play in regulating the U.S. economy.218 There are,
however, numerous other sources of reasoning or norms 219
to which one may turn for assistance in the interpretation and
formulation of securities law.220 Of these, “natural law”
is particularly appropriate and helpful. Although a
comprehensive articulation and defense of natural law theory221
218
See supra Part III.B.
See Posner, supra note 2, at 166-67. See generally Robert H. Nelson,
Economic Religion Versus Christian Values, 1 J. MARKETS & MORALITY 142, 154 (1998)
(“Economics offers a worldview of its own . . . . Economics is thus part of an overall
value system, really a theology of a secular sort.”).
220
See, e.g., Basant K. Kapur, Harmonization Between Communitarian Ethics
and Market Economics, 2 J. MARKETS & MORALITY, (1999) 35, 38-39, 50 nn.18-22
(identifying Biblical, Islamic, Hindu, Buddhist, and Confucian sources of ethics).
221
At this point, a distinction should be noted between “natural law” on the
one hand and natural law theories, perspectives, reasoning, and thinking on the other.
It is one thing to assert (or assume) that natural law exists, it is quite another to assert
(or assume) that certain principles, values, or norms are part of, or derived from, the
natural law. This Article assumes that natural law exists, and shall draw upon the
thinking of those who have articulated the traditional understanding of what the
content and implications of the natural law are believed to be. Thus, properly speaking,
this final part of this Article discusses and applies natural law theory and natural law
219
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is beyond the scope of this Article, a brief overview of natural
law theory, along with a more thorough presentation of those
components of natural law thinking most applicable is in order
and shall be provided.222 As shall be seen, a natural law
approach to the problem of analyst conflicts differs significantly
from a law and economics approach, in terms of both the ends
pursued and the means employed. With regard to ends,
although a natural law approach does not dismiss the
important objectives of wealth maximization and efficiency,223
natural law does not view wealth maximization as the ultimate
(or only) societal goal. With regard to means employed,
although a natural law approach does not dispute the force of
self-interest, it recognizes other motivating factors upon
human behavior and, as such, considers a wider range of
possible mechanisms for influencing behavior. Taken together,
the natural law approach provides a broader set of factors to
consider in analyzing problems and proffering solutions.
Moreover, as the values and objectives of a natural law
approach are more congruent with the full set of values and
objectives that originally animated the securities laws, so too
are the solutions and approaches derived and endorsed via a
natural law perspective.
1. Why Natural Law?
Before delving into a substantive overview of natural
law theory, first consider the appropriateness of applying
natural law thinking to a securities law analysis. There are at
least five reasons for reviewing the problem of analyst conflicts
in particular, and issues of securities law in general, via a
natural law approach:
First, it is not unfair for proponents of law and
economics to demand a sparring partner whose arguments are
predicated upon reason and objectivity rather than feelings,
opinion, and subjectivity.224 Given the intellectual rigor and
thinking, and does not purport to discuss or apply natural law per se. See JOHN FINNIS,
NATURAL LAW AND NATURAL RIGHTS 25 (1980).
222
For an overview of natural law methods of analysis, see generally Randy E.
Barnett, A Law Professor’s Guide to Natural Law and Natural Rights, 20 HARV. J.L. &
PUB. POL’Y 655 (1997). For a lengthier (but not too lengthy) defense of a natural law
approach to 21st century legal problems (albeit in the context of Contract law), see
HENRY MATHER, CONTRACT LAW AND MORALITY 173-78 (1999).
223
Indeed, the efficient allocation and utilization of resources, ceteris paribus,
is promoted by natural law proponents. See, e.g., FINNIS, supra note 221, at 111-12.
224
See, e.g., Posner, supra note 2, at 166-73.
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
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rationality of natural law theory, and given the fact that for
centuries it has been subject to scrutiny, evaluation, and reevaluation by some of the greatest minds the world has ever
produced, no person of good will who professes a loyalty to
reason can deny that natural law philosophy meets this
standard.225
Second, natural law reasoning has been a force in
American political philosophy and jurisprudence since the
inception of the United States to the present,226 and this alone
suggests its appropriateness as a reference to assist in the
understanding and resolution of American legal controversies.
As Professor Kmiec has explained, “the American democracy
is . . . rooted in the natural law.”227
Third, although admittedly controversial in its
application to certain other fields of law,228 natural law thinking
is not often applied to economic-related fields of law such as
securities regulation, nor, moreover, can natural law readily be
categorized as “conservative” or “liberal,” “progressive,” or
“reactionary” with regard to its application in such an area.
Thus, application of natural law to the problem of analyst
conflicts offers a perspective that is challengingly unfamiliar to
many (if not most) in the field of securities law and, perhaps,
less likely to be viewed askance or otherwise discounted as a
vehicle for a particular political agenda.
Fourth, as one proponent of natural law reasoning has
explained, the use of natural law philosophy in legal analysis is
a refreshingly ambitious alternative to those more “realistic”
approaches to legal analysis employed in our “age of prosaic
undertakings.”229 Put differently, a natural law approach, as
opposed to a law and economics approach and some other
modern theories of jurisprudence, allows us to once again focus
the law explicitly on normative ends.
Fifth, and perhaps most compelling, natural law
thinking meshes extraordinarily well with the seminal values
that produced the securities laws.230 For the virtues identified
225
See infra note 234 and accompanying text.
See RUSSELL KIRK, THE ROOTS OF AMERICAN ORDER 402-12 (3d ed. 1991).
See generally Douglas W. Kmiec, Natural-Law Originalism—Or Why Justice Scalia
(Almost) Gets It Right, 20 HARV. J.L. & PUB. POL’Y 627 (1997) (discussing the natural
law underpinnings of the U.S. Constitution).
227
See Kmiec, supra note 226, at 636.
228
See, e.g., RICE, supra note 139, at 25.
229
See A.P. D’ENTRÈVES, NATURAL LAW 93-94 (2d ed. 1970).
230
See supra Part III.A.
226
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by Congress as necessary to the ends of the securities laws
(namely, moderation, honesty, and trustworthiness231), and the
Second Circuit’s summary of the securities laws as ordered to
“fairness,”232 echo principles of natural law (even if not
consciously based upon such principles). And, whereas there
are multiple methods of achieving the ends of the securities
laws, the means chosen should be consonant with the values
inherent in these laws. Since natural law philosophy shares the
values previously identified as central to the securities laws,
under a natural law approach, one shall be spared the
predicament of a solution that furthers one of the ends of the
securities laws while simultaneously undermining the laws’
other ends, values, or philosophical underpinnings.
2. Natural Law Generally
a. Natural Law Defined
There are multiple competing theories of natural law.233
Fortunately, much of what follows is shared by most (if not all)
of these theories. Where divergences do occur, I have adopted
what is commonly characterized as the “virtue ethics” school of
natural law, which was originally developed by Aristotle and
the ancient Greeks, and most thoroughly expounded upon and
augmented by St. Thomas Aquinas.234
At the core of natural law philosophy is the notion that
reason can lead us to grasp certain fundamental truths about
ourselves as human beings and, consequently, about society as
well.235 Armed with the knowledge of these truths, further
reasoning should enable us to derive rules and principles of
conduct best suited to our human nature—that is, rules and
principles of conduct that will promote individual virtue (or
231
See supra note 151 and accompanying text.
SEC v. Tex. Gulf Sulphur Co., 401 F.2d 833, 847-48 (2d Cir. 1968).
233
See generally Brian Bix, Natural Law Theory: The Modern Tradition, in
JURISPRUDENCE AND PHILOSOPHY OF LAW 61-103 (Jules Coleman & Scott Shapiro eds.,
2002) (providing an overview of the various theories of natural law).
234
For a short summary of virtue ethics, see Virtue Ethics, in STANFORD
ENCYCLOPEDIA OF PHILOSOPHY (2007), available at http://plato.stanford.edu/entries/
ethics-virtue/. For a more thorough treatment of the subject, see generally ALASDAIR
MACINTYRE, A SHORT HISTORY OF ETHICS (2d ed. 1998); RAYMOND J. DEVETTERE,
INTRODUCTION TO VIRTUE ETHICS (2002).
235
See FINNIS, supra note 221, at 23-24.
232
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morality) and societal justice.236 And by complying with these
rules and principles (and only by complying with these rules
and principles), human beings are capable of achieving
“eudaimonia”—true human flourishing.237
Natural law’s pedigree is long and illustrious; its
various permutations can trace their roots back to ancient
Greece, and its influence continues to be felt over the most
important issues of our present day:
[Natural law is] a philosophical theory stretching back to Socrates,
Plato and Aristotle, propounded by the Stoics, developed anew by
medieval churchmen like Aquinas, elaborated in secular terms by
Protestant jurists like Grotius and Pufendorf, reshaped238 to justify
“natural rights” by Locke, Montesquieu, Jefferson and Adams, and
invoked in the cause of racial equality by Abraham Lincoln, the Rev.
Martin Luther King Jr. and . . . Thurgood Marshall.239
Finally, it should be noted that, although perhaps most
often associated with Aquinas (who set forth the most
complete, systematic exposition of natural law in the Summa
Theologica240), natural law philosophy need not be predicated
upon, and is not dependent upon, any particular religion or
theology,241 as even natural law’s critics have come to observe.242
236
See D’ENTRÈVES, supra note 229, at 92-93, 110-11; see also FINNIS, supra
note 221, at 23-24.
237
See Stephen M. Feldman, Republican Revival/Interpretive Turn, 1992 WIS.
L. REV. 679, 689.
238
Arguably, “reshaped” is a euphemism here; perhaps a better term would be
“radically transformed.” See, e.g., JACQUES MARITAIN, NATURAL LAW AND NATURAL
RIGHTS 59 (Doris C. Anson trans., 1943) (commenting that eighteenth-century natural
law theory “more or less deformed” classical natural law theory). Nevertheless, the key
point remains: the concept of a natural law, in its various permutations, has served as
a wellspring of Western thought and inspiration.
239
Peter Steinfels, Beliefs, N.Y. TIMES, Aug. 17, 1991, at 9; see also Bix, supra
note 233, at 61-63.
240
See Bix, supra note 233, at 61-62; see also Michael P. Zuckert, Do Natural
Rights Derive From Natural Law?, 20 HARV. J.L. & PUB. POL’Y 695, 704 (1997) (“There
were, to be sure, natural-law doctrines prior to Thomas Aquinas, but none so elaborate,
so detailed, or so philosophically successful.”).
241
See A.P. D’ENTRÈVES, supra note 229, at 53 (noting Grotius’s “famous
dictum that natural law would retain its validity even if God did not exist”).
242
See H.L.A. HART, THE CONCEPT OF LAW 187 (2d ed. 1994) (“Natural Law
has, however, not always been associated with belief in a Divine Governor or Lawgiver
of the universe, and even where it has been, its characteristic tenets have not been
logically dependent on that belief.”).
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b. Virtue and Eudaimonia
As stated, from a natural law perspective, the ultimate
goal (or end) of human existence is “eudaimonia”—a term used
by Aristotle to denote true human flourishing (sometimes
translated more simply as “happiness”).243 This immediately
presents a contrast with the focus of law and economics, which
does not recognize a unique end of human existence, but rather
strives toward whatever ends an individual (or collection of
individuals) chooses to pursue.244 Although both economics and
natural law assume that individuals pursue “the good,” each
defines “the good” quite differently. Under natural law
philosophy, the good is an objective truth knowable by reason
that is independent of an individual’s personal preferences;
under economic theory, only preferences are knowable, and the
good is defined as that which satisfies an individual’s
preferences. Thus, the good has no meaning in economics
without reference to preferences, whereas to natural law
theorists what an individual prefers is not the same as what is
truly good for him or her. So, although under natural law
thinking, one can state that a particular individual prefers a
particular thing that is not truly good for him or her, under
economic thinking such a statement would be paradoxical.245
Regarding the concept of efficiency, although a natural
law approach would generally eschew wastefulness and share
in the economist’s desire to promote efficiency and maximize
wealth,246 natural law theory does not elevate efficiency and
wealth maximization to the status that law and economics
elevates them; rather, natural law theory subordinates the
concerns of efficiency and wealth maximization to the
243
Mark A. Sargent, Utility, The Good, And Civic Happiness: A Catholic
Critique of Law and Economics 19 (Villanova University School of Law, Public
Law and Legal Theory, Working Paper No. 2005-6, 2005), available at
http://ssrn.com/abstract=700684.
244
See supra text accompanying notes 162-164. Or, as some have suggested,
law and economics generally views wealth (or utility) maximization as the end to which
all human undertakings are (or should be understood to be) directed. E.g., Herbert
Hovenkamp, Positivism in Law and Economics, 78 CAL. L. REV. 815, 825-30 (1990).
245
See MacIntyre, supra note 3, at 140-41 (“An Aristotelian theory of the
virtues does therefore presuppose a crucial distinction between what any particular
individual at any particular time takes to be good for him and what is really good for
him as a man.” Professor Joseph Burke suggests that in economic parlance the natural
law approach essentially separates an individual’s preferences from that individual’s
welfare.
246
See supra note 223.
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A NATURAL LAW ANALYSIS OF ANALYST FRAUD
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furtherance of objective happiness (eudaimonia).247 Similarly,
under natural law thinking, happiness and true human
flourishing “does not consist in amusement” (or material
goods),248 but rather in living a life in accord with virtue.249
To better understand why a virtuous life leads to true
human flourishing (versus the satisfaction of subjective
preferences or the maximization of wealth or utility), it helps if
one is aware of the definition of virtue in the natural law
tradition: the habit of doing “good.”250 “Good,” in turn, refers to
that which is “to be done and aspired after” because of its
consistency with human nature (and, consequently, its
tendency to further humans toward their natural ends):251
[G]ood is the first thing that falls under the apprehension of the
practical reason, which is directed to action: since every agent acts
for an end under the aspect of good. Consequently the first principle
in the practical reason is one founded on the notions of good, viz.,
that good is that which all things seek after. Hence this is the first
precept of law, that good is to be done and pursued, and evil is to be
avoided. All other precepts of the natural law are based upon this: so
that whatever the practical reason naturally apprehends as man’s
good (or evil) belongs to the precepts of the natural law as something
to be done or avoided.252
As alluded to previously, the ends of human existence
under natural law thinking (and unlike law and economics)
“are not arbitrary but rather determined by the dispositional
247
See Sargent, supra note 243, at 19; see also Luigino Bruni, The “Technology
of Happiness” and the Tradition of Economic Science, 26 J. HIST. ECON. THOUGHT 19,
27 n.13 (2004).
248
ARISTOTLE, NICOMACHEAN ETHICS 194 (Roger Crisp trans. & ed.,
Cambridge Univ. Press 2000) [hereinafter NICOMACHEAN ETHICS].
249
See id.; see also Bruni, supra note 247, at 26-29, 40; Sargent, supra note
243, at 19. It should be noted, however, that there is nothing necessarily inconsistent
between the goal of natural law (eudaimonia) and the goals of wealth creation (or,
moreover, the economic goals of securities regulation); a society in which investors are
protected, confidence in the markets is maintained, and national savings, capital
formation, and investment grow, is arguably establishing, at a minimum, the
preconditions of true human flourishing. See John E. Coons & Patrick E. Brennan,
Nature and Human Equality, 40 AM. J. JURIS. 287, 304 (1995) (noting the role of
material goods in the achievement of human happiness); ALEJANDRO A. CHAFUEN,
FAITH AND LIBERTY 7 (2003) (“One of the commonplaces in Aristotle is that most men
need a certain amount of material goods in order to practice virtue.”); ARISTOTLE,
POLITICS [1253b] 31 (reprint of 1905 Benjamin Jowett tr., Dover 2000) (“for no man can
live well, or indeed live at all, unless he be provided with necessaries”).
250
THOMAS AQUINAS, SUMMA THEOLOGIAE, I-II, Q. 55, Art. 1.
251
Id. Q. 94, Art. 2.
252
Id.
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properties which make up a human nature.”253 Via the
application of “right reason,” individuals can distinguish
between those acts that are good (i.e., in conformity with
human nature and therefore lead toward true happiness)
versus those acts that are evil (i.e., not in conformity with
human nature and therefore lead away from true happiness).254
In sum, therefore, natural law reasoning posits that:
(1) human beings
(eudaimonia),
are
naturally
oriented
toward
an
end
(2) action taken in furtherance of this end is objectively good (and
action taken in contradiction to this end is objectively evil);
(3) via the use of reason, individuals can come to recognize that
which is good from that which is evil;
(4) the habit of choosing good (and avoiding evil) is called virtue (and
its opposite called vice); and
(5) living a virtuous life is living a life in accord with human nature;
thus, the more virtuous an individual is, the more fully human that
individual is, and the more he or she maximizes his or her human
potential (and, consequently, his or her true happiness).255
c. Social Virtues and Truth
Particularly relevant to this Article is the natural law
observation that “man by his nature is a social animal.”256 From
this flows the understanding that many virtues are “social
virtues” (since “it is by reason of them that man behaves
himself well in human affairs”).257 As such, it is virtuous for
human beings to act “in the service of the common weal,” and
“to do well not only towards the community, but also towards
the parts of the community, viz., towards the household, or
even towards one individual.”258 It is not surprising, therefore,
253
ANTHONY J. LISSKA, AQUINAS’S THEORY OF NATURAL LAW 108 (Clarendon
Press 1996).
254
Id. at 108-09. Although the application of right reason to particular
situations is not always readily apparent, natural law theorists posit that certain broad
generalizations can nevertheless be made. See D.Q. MCINERNY, A COURSE IN
THOMISTIC ETHICS 242, 256 (1997). Thus, at a very high level, Aquinas identifies
eternal happiness, self-preservation, procreation, community, and education as human
“goods,” the pursuit of which “man has a natural inclination” and are “naturally
apprehended by reason as being good, and consequently as objects of pursuit.”
AQUINAS, supra note 250, Q. 94, Art. 2; see also RICE, supra note 139, at 52.
255
See NICOMACHEAN ETHICS, supra note 248, at 16.
256
AQUINAS, supra note 250, Q. 61, Art. 5.
257
Id.
258
Id.
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to count among the virtues articulated within the natural law
tradition exactly those same features that Congress
highlighted as essential to properly ordered securities markets:
moderation, honesty, trustworthiness, and/or fairness.259
Additionally, the sina qua non of a securities market that is
characterized by moderation, honesty, trustworthiness, and/or
fairness is truth. With regard to truth, the Aristotelian natural
law tradition condemns, as a perversion of communication that
undermines the fabric of society, all forms of prevarication.260
This condemnation results from a consideration of the purpose
of communication and its role in society, along with an
estimation of the consequences to a society that suffers from a
lack of truthfulness.261 Thus, it can safely be concluded that
259
See C.S. LEWIS, ABOLITION OF MAN 51-61 (MacMillan 1947) (setting forth
“illustrations of the Natural Law” that include admonitions concerning general
beneficence, honesty, good faith and veracity, and justice). Because, as explained, right
reason enables human beings to comprehend conduct proper to their end, it comes not
as a surprise to the natural law theorist that so many peoples, across continents and
centuries, have come to recognize these (and other) virtues as such. See id; Linda M.
Sama & Victoria Shoaf, Reconciling Rules and Principles: An Ethics-Based Approach to
Corporate Governance, 58 J. BUS. ETHICS 177, 183 (2005) (identifying truth, honesty,
and fairness as “global hypernorms”); George Bragues, The Ancients Against the
Moderns: Focusing on the Character of Corporate Leaders 27 tbl.1 (2006) (Paper
Presented at the IESE Bus. School, Univ. of Navarra, 14th Int’l Symposium on Ethics,
Business and Society, May 18-19, 2006) (setting forth Benjamin Franklin’s recognition
of moderation, sincerity, resolution, and justice, among others, as virtues).
260
See Lying, in IX THE CATHOLIC ENCYCLOPEDIA 469-70 (1910), available at
http://www.newadvent.org/cathen/09469a.htm (“Aristotle, in his Ethics, seems to hold
that it is never allowable to tell a lie, while Plato, in his Republic, is more
accommodating; he allows doctors and statesmen to lie occasionally for the good of
their patients and for the common weal. Modern philosophers are divided in the same
way. Kant allowed a lie under no circumstance.”).
261
Natural law theory is not alone in condemning deceit, which can also be
condemned from perspectives of consequentialist and Kantian moral reasoning as well:
Truth consists in a correspondence between the thing signified and the
signification of it. Man has the power as a reasonable and social being of
manifesting his thoughts to his fellow-men. Right order demands that in
doing this he should be truthful. If the external manifestation is at variance
with the inward thought, the result is a want of right order, a monstrosity in
nature, a machine which is out of gear, whose parts do not work together
harmoniously.
....
The absolute malice of lying is also shown from the evil consequences which
it has for society. These are evident enough in lies which injuriously affect
the rights and reputations of others. But mutual confidence, intercourse, and
friendship, which are of such great importance for society, suffer much even
from officious and jocose lying. In this, as in other moral questions, in order
to see clearly the moral quality of an action we must consider what the effect
would be if the action in question were regarded as perfectly right and were
commonly practiced. Applying this test, we can see what mistrust, suspicion,
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natural law theorists would find research analysts who
prevaricate or otherwise mislead the investing public in breach
of the natural law.
d. Positive Law and the Common Good
It should not be concluded that the natural law’s
imprecation of deceit demands an absolute prohibition on all
false statements or opinions contained in research reports,
regardless of the quantity and quality of accompanying
disclosures. This leap—from natural law’s condemnation of
prevarication to legal prohibition of prevarication—fails to
recognize the important distinction between the natural law
per se and positive (human) law within natural law theory.262
Indeed, the proper role and scope of positive law under natural
law theory is limited.263
As expounded by Aquinas, human law exists not to
prohibit every vice or wrongful act, but rather for the more
modest purpose of promoting the “common good.”264 As with an
individual, the “common good” does not consist merely of
wealth or utility maximization, but rather, as Antonio
Genovesi put it, a society that exhibits “pubblica felicita”
(genuine public happiness).265 Given the interplay between
virtue and happiness, the common good could also be thought
of as “the creation of an economy and society that is more
virtuous rather than less.”266 Again, the critical role that virtue
plays here stems from the communitarian understanding of the
individual in the natural law tradition: “No [person] is an
island, sufficient unto himself . . . . All of the key social units
and utter want of confidence in others would be the result of promiscuous
lying, even in those cases where positive injury is not inflicted.
Id.
262
See Barnett, supra note 222, at 667 (“While a natural-law analysis could be
applied to a variety of questions, including the question of how human beings ought to
act (for example, vice and virtue), the question of how society ought to be structured is a
separate and quite distinct inquiry.” (emphasis in original)).
263
See AQUINAS, supra note 250, Q. 96, Art. 1-2.
264
See id. Q. 96, Art. 1; see also D’ENTRÈVES, supra note 229, at 84 (“[H]uman
laws cover only those aspects of human behavior which imply a co-ordination with
other men.”).
265
Bruni, supra note 247, at 26.
266
Mark A. Sargent, Utility, the Good and Civic Happiness: A Catholic
Critique of Law and Economics, 44 J. CATH. LEGAL STUD. 35, 55 (2005).
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are very closely interrelated, and the moral health of any one of
them depends upon the moral health of the others.” 267
Since it is the common good that is the proper focus of
the positive law, and since not every vice or wrongful act
disturbs the common good to the same degree,268 enacted law
ought to focus on forbidding only the “more grievous” vices,
only those wrongful acts that threaten the common good.269 As
Aquinas explained:
Now human law is framed for a number of human beings, the
majority of whom are not perfect in virtue. Therefore human laws do
not forbid all vices, from which the virtuous abstain, but only the
more grievous vices, from which it is possible for the majority to
abstain, and chiefly those that are to the hurt of others, without the
prohibition of which human society could not be maintained; thus
human law prohibits murder, theft and the like.270
With regard to the inculcation and development of
virtues, here too the role of positive law from a natural law
perspective is limited. For it is understood that “[l]aws cannot
make men moral.”271 However, as discussed, it is also
understood that individual virtue furthers the common good,
and thus “the laws have a legitimate subsidiary role to play in
helping people to make themselves moral.”272 To this end,
proponents of natural law have argued that
laws forbidding certain powerfully seductive and corrupting vices . . .
can help people to establish and preserve a virtuous character by (1)
preventing the (further) self-corruption which follows from acting out
a choice to indulge in immoral conduct; (2) preventing the bad
example by which others are induced to emulate such behavior; (3)
helping to preserve the moral ecology in which people make their
morally self-constituting choices; and (4) educating people about
moral right and wrong.273
It is also worth mentioning at this point the comments
of the SEC’s first Chairman, Joseph P. Kennedy, whose
267
See MCINERNY, supra note 254, at 241; see also FINNIS, supra note 221, at
165 (“Few will flourish, and no one will flourish securely, unless there is an effective
collaboration of persons, and co-ordination of resources and of enterprises . . . . Such an
ensemble of conditions of collaboration which enhance the well-being (or at least the
opportunity of flourishing) of all members of a community is, indeed, often called the
common good.”).
268
See ROBERT P. GEORGE, MAKING MEN MORAL 47 (1993).
269
See AQUINAS, supra note 250, Q. 96, Art. 2.
270
Id.
271
GEORGE, supra note 268, at 1.
272
Id.
273
Id.
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assessment probably still holds true today: “character exists
strongly in the financial world,” and that the SEC need not
“compel virtue,” but rather must “prevent vice.”274 The point
being, the raw material of virtue is already present in the
security industry’s participants; law is needed primarily to
protect, preserve, and foster this virtue, largely by preventing
its corruption—and not to create it out of whole cloth.
Such efforts to use the law to help “people to make
themselves moral” would appear particularly justified within
the context of the social virtues. As touched upon previously,
“[m]an is by nature a social animal, and this fact has
immediate implications for the moral life”: 275
Every man is a member of a community, and he is perfected in and
through that community. And it is just here where the influence of
law comes in. . . . Any community is a good community by reason of
the fact that it has good laws. And a good community, St. Thomas
argues, plays a vital role, especially through the medium of laws, in
fostering, supporting, and sustaining the moral goodness of its
individual members.276
A final relevant implication flowing from an
acknowledgment of the force of virtue is an appreciation of the
fact that economic self-interest is not the only influence upon
human activity.277 That is, a natural law theorist views virtue,
and the tendency toward the good (including a tendency toward
the common good), as fundamentally innate and therefore
capable of motivating human conduct.278 Thus, in seeking
solutions to problems, a natural law perspective would go
beyond the paradigm of motivations based solely upon selfinterest and cost-benefit analysis—beyond “the economist’s
standard reliance on a variety of taxes, subsidies, regulatory,
and other pecuniarily oriented measures.”279 The natural law
theorist would explore, for example, “[t]he government’s role in
moral suasion, and [seek its] influence [to] mold the ethical
274
See Walsh, supra note 140, at 1058.
MCINERNY, supra note 254, at 246 (quoting AQUINAS, supra note 250,
Q. 92, Art. 1).
276
Id. at 246 (quoting AQUINAS, supra note 250, Q. 92, Art. 1).
277
See Kapur, supra note 220, at 9 (“[T]here is a strong normative
prescription of non-purely self-interest behavior in the great religious and cultural
heritage of the world.”); see also Stephen M. Bainbridge, Catholic Social Thought and
the Corporation 5, UCLA Sch. of Law Research Paper No. 03-20, 2003), available at
http://ssrn.com/abstract=461100.
278
See AQUINAS, supra note 250, Q. 63, Art. 1.
279
See Kapur, supra note 220, at 37.
275
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climate of the society generally.”280 He or she would consider
the capabilities of business leaders to set “the moral tone” of
their respective industries.281 In short, a broader array of means
would be considered under a natural law approach, not merely
those means which appeal to an individual’s self-interest.
Thus, in scrutinizing the problem of analyst conflicts of
interest, a natural law approach will first consider whether the
problem requires legislative circumscription, and, if so,
whether the misconduct at issue would best be curbed by (1)
simple prohibitions, and/or (2) efforts to increase the virtues
and/or decrease the vices that are at the root of the misconduct.
3. Application of Natural Law
Not surprisingly, applying natural law principles to the
problem of analyst conflicts yields results different from the
application of law and economics. Whereas the economist views
the problem as fundamentally one of inefficiency and/or market
failure arising from competing interests, the natural law
theorist views the problem as fundamentally a moral one: that
of research analysts succumbing to temptations to prevaricate
for profit.282 (Note the confluence of this diagnosis with that of
the progenitors of the Securities Acts to the securities industry
problems of their day.283) The natural law theorist will suggest
solutions that protect the common good directly, by seeking to
prevent the harm threatened by analyst misconduct, and
indirectly, by seeking to inculcate or strengthen the virtues
necessary to prevent such misconduct from reoccurring.284
However, it should be noted at the outset that this
difference does not necessarily indicate a trade-off of “wealth”
in favor of “virtue,” for the economic benefits promised by a
successful natural law approach would be significant. A regime
280
Id. at 38.
Id. at 47; see also Bragues, supra note 259, at 8.
282
Cf. Michael Prowse, Why Plastering over Capitalism’s Cracks Won’t Work,
FIN. TIMES (London), July 13, 2002, at 2 (“The root problem is a loss of belief in
objective ethical standards.”); William J. Bennett, Editorial, Capitalism and a Moral
Education, CHI. TRIB., July 28, 2002, at C9 (identifying problems of corporate America
as stemming from a mentality of “putting profits ahead of principle”).
283
See supra Part III.A.
284
According to the former President and CEO of the Federal Reserve Bank of
New York, corporate America’s problems and scandals stem primarily from a failure to
abide the fundamental commandment to “love thy neighbor.” William J. McDonough,
Remarks at the September 11 Commemorative Service at Trinity Church (Sept. 11,
2002), available at http://www.ny.frb.org/newsevents/speeches/2002/mcd020911.html.
281
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characterized by increased virtue would “conduce considerably
to the more efficient functioning of the economic system,
especially when informational asymmetries are pervasive, as
they invariably tend to be in modern, complex economies.”285
And, as referred to previously, President Roosevelt and
Congress, in addressing the economic crisis of the Great
Depression, explicitly identified moral rehabilitation of the
securities industry as a necessary prerequisite to the economic
restoration of the securities markets.286 Indeed, studies have
identified “the apparent decline in the ability to rely on the
honesty of other people (including employees) as a factor in
reduced U.S. productivity growth in the late 1970s.”287
Therefore, there are even purely economic reasons for
policymakers to seriously consider the insights of natural law.
The ultimate natural law solution to the problem of
research analyst conflicts of interest, therefore, even if merely
aspirational, would be a regime in which regulation were
unnecessary on account of the virtue of research analysts.
Research analysts would continue to do their best to please
their firm’s investment clients, but would resist the temptation
of issuing reports that contain feigned opinions and fraudulent
recommendations. But of course, if men were angels, we would
need neither law nor government.288 Virtue, therefore, becomes
a two-fold objective, pursued both because of its corrective
function within the context of securities law and as a
desideratum of natural law generally. Thus, a natural law
approach would seek means to inculcate such virtue. As virtue
is internal and choice-driven, it rarely (if ever) can be
developed through coercion, and so an array of incentives
conducive to its development would be preferable to injunctive
measures.289 To that end, broader means of encouragement and
exhortation, as discussed previously, would be mobilized.290 The
hope would be that, via a sustained and coordinated appeal to
the law already inscribed in the hearts of the market’s
285
See Kapur, supra note 220, at 45-46.
See supra note 145 and accompanying text.
287
See Kapur, supra note 220, at 36-37.
288
Cf. THE FEDERALIST NO. 51 (James Madison). But see ROBERT P. GEORGE,
IN DEFENSE OF NATURAL LAW 107 (1999) (“[L]aw would be necessary to coordinate the
behavior of members of the community for the sake of the common good even in a
society of angels.”).
289
See GERMAIN GRISEZ, CHRISTIAN MORAL PRINCIPLES 58-59 (1997).
290
See text accompanying notes 277-281.
286
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participants,291 more punitive, coercive action to resolve the
problem of analyst misconduct would be unnecessary.
The failure of a system of such “virtue ethics,” based
upon the natural law, would cause society instead (as it has) to
resort to a system of ethics in which “the moral life . . . consists
mainly of complying with society’s mandated code of
conduct.”292 This is the legislative equivalent of stationing a
police officer on every corner—a situation that is impracticable
logistically, burdensome in cost, and awkward to free
societies.293 Moreover, such rule-based ethical regimes have
increasingly exhibited shortcomings, calling into question their
efficacy to regulate conduct.294 Nevertheless, it has long been
recognized that, as Professor Koniak has explained, “[n]orms
maintained by private means (morality, ethics, religious
principles) do not exist in a vacuum. They coexist, affect, and
are affected by the norms of law.”295 The solution to societal
problems, therefore, lies in fashioning the optimal mix of
incentives and disincentives, coercive and non-coercive, in
pursuit of the ends sought.296
In the absence of an effective voluntary ethics regime, or
some other non-coercive solution to the problem of analyst
conflicts, the next question becomes whether the false
portrayal of a researcher’s opinions is a wrongdoing of such
magnitude that it justifies the imposition of legal
intervention—including all the costs associated with such an
291
See supra note 274 and accompanying text.
See Bainbridge, supra note 277, at 5. For an explanation of the distinction
between a rules-based versus a principles-based system of ethics (which this statement
implicates), see Sama & Shoaf, supra note 259, at 179-82.
293
Cf. HART, supra note 139, at 162 (“There is a limit to the amount of law
enforcement that any society can afford, even when moral wrong has been done.”);
1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 288-330 (Phillips Bradley ed.,
Knopf 1993) (1835) (addressing “[p]rinciple causes which tend to maintain the
democratic republic in the United States”).
294
See Susan P. Koniak, Corporate Fraud: See, Lawyers, 26 HARV. J.L. & PUB.
POL’Y 212-14 (2003). See generally Maurice E. Stucke, Morality and Antitrust, 2006
COLUM. BUS. L. REV. 443 (2006) (addressing the repercussions of neglecting the role of
morality in antitrust enforcement).
295
Koniak, supra note 294, at 225.
296
An example of creative, non-coercive means that could be employed to
assuage the problem of analyst conflicts is provided by the aforementioned Global
Settlement, which directed a portion of settlement proceeds to the funding of investor
education and independent research. See supra text accompanying note 34. A better
educated investing public, coupled with the provision of more independent research,
could serve to temper bias in research reporting by reducing the effectiveness of
disingenuous opinions; by virtue of their increased understanding coupled with more
widely-available “second opinions” from independent research analysts, the public
would, arguably, be less susceptible to fraudulent opinions.
292
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imposition. Intentional deceit known to have such serious,
harmful consequences for as many victims as analyst fraud
ostensibly has had would, I suggest, readily cross the threshold
of grievousness to justify legal intervention under natural law
principles.297 And, assuming the failure of other means to curb
the problem, it would seem that legal intervention over the
issue would not only be justified, but essential.
The last issue to consider, therefore, is the nature of the
legal intervention most fitting to address the problem of
analyst conflicts under a natural law approach.
a. Laissez-Faire Approach
A laissez-faire approach, relying upon market forces to
check dishonesty, would not be favored because such an
approach contemplates (and permits) the persistence of a
certain amount of deception and dishonesty. The long-term
impact of such a regime on society cannot be expected to be
good, for it (1) acknowledges a role for dishonesty in the
professional work of an entire class of individuals (research
analysts) and (2) broadcasts the message that dishonesty is an
expected part of certain commercial activity.
b. Mandatory Disclosure
It is unlikely that a natural law theorist would be
comfortable with a rule protecting analysts from liability for
dishonest opinions so long as full and accurate disclosure of
their conflicts and all the underlying factual data accompanies
such opinions. An argument justifying such a rule in terms
palatable to a natural law proponent would stress that in the
context of a full disclosure rule any harm to society resulting
from feigned analyst opinions and recommendations would be
minimal, and therefore not grievous enough to warrant
legislative intervention.298 But the justification behind this
approach focuses solely on the economic consequences of such
deception, without regard to the severity of the moral
implications to society. For the very fact of circumscribing the
limits of the deception arguably institutionalizes it, implying
297
Cf. Bainbridge, supra note 277, at 4 (noting that “there is a limit at which
forbearance ceases to be a virtue” and at which point “the state properly steps in. The
prudential question is when forbearance becomes a vice.”) (internal quotations
omitted).
298
See supra Part III.C.2.d.
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state approval thereof if contained within the established
bounds. The coarsening effect of such a situation, both upon the
individuals concerned and on society at large, would appear to
warrant state intervention given the importance of
truthfulness to the proper functioning of society.299
Additionally, a disclosure-alone regime300 would also
conflict with natural law principles by placing the common
good (that is, the good of all investors and that of society as a
whole) second to the particular good (that is, the benefit of
those investors sophisticated enough to avail themselves of full
disclosure and avoid being deceived by dishonest analyst
opinions—even if these investors happen to be in the
majority).301 From a natural law perspective, a regime designed
merely to blunt the effects of deception (such as a disclosure
rule by itself) would be inferior to a regime that prohibited
deception per se.
c. Antifraud Rule
In light of the preceding, it unsurprisingly follows that
a natural law approach would favor an antifraud rule
applicable to analyst statements (including opinions and
recommendations) over a rule simply mandating the disclosure
of conflicts. And although this was not the conclusion reached
as optimal under the general law and economics approach set
forth previously (largely because of its costs, including the
perceived threat to the vitality of the research-analyst
industry),302 it should be noted that such an approach is
nevertheless a recommendation made by some who subscribe to
an economic approach to the law.303 For application of a strict
antifraud rule to analyst statements could reap the benefits of
a market-derived quantity of disclosure and provide a
299
See supra Part III.C.2.c. Admittedly, the argument in favor of state
intervention becomes much weaker if the purported economic harms to society of
analyst misconduct are significantly diminished.
300
Or, put differently, a regime in which analysts are shielded from liability
for their feigned opinions if their research reports also contained sufficient cautionary
disclosure as per the bespeaks caution doctrine and/or the PSLRA’s safe harbor rule.
301
Although it is laudable for an individual or group of individuals to
voluntarily make personal sacrifices for the common good, it is not laudable to wrong a
minority for the sake of the majority under natural law principles. Indeed, this would
seem to violate the natural law prohibition on using the ends intended to justify the
means employed. See McInerny, supra note 254, at 80.
302
See supra Part III.B.2.c.
303
See, e.g., Bainbridge, supra note 166, at 1024.
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safeguard against disclosure that was fraudulent or otherwise
misleading.304
d. Structural Approach
Finally, a natural law theorist could be expected to
heartily endorse structural correctives to the problem of
analyst conflicts, such as those set forth by NASD’s Rule
2711,305 in addition to other market-influencing efforts, such as
the funding of investor education and independent research (as
per the Global Settlement306). As explained, a natural law
approach seeks to fashion an environment that encourages,
rather than undermines, virtue.307 Investor education, and the
increased availability of independent research, both serve to
reduce the effectiveness (and harm) of biased research
reporting and, consequently, should diminish the allure of
dishonest reporting.308 And absent a structural solution, the
analyst’s conflicted situation presents a constant and forceful
temptation to falsify his or her opinions and recommendations
in order to advance his or her own pecuniary self-interest.
Although the ability of the law to coerce virtue is questionable
to say the least,309 the law can certainly remove certain
impediments to the development of virtue. Freed from such
impediments, individuals are more likely to develop the habits
of virtue, or at the very least are less likely to succumb to the
temptations of vice.310 For this reason, a structural solution to
the problem of analyst conflicts would coincide nicely with the
ends of both the securities laws and natural law philosophy.
304
See Fisch & Sale, supra note 10, at 1086.
See supra Part II.B.2.d.
306
See supra text accompanying notes 34, 296.
307
See supra Part III.C.2.d; see also GEORGE, supra note 268, at 44-45;
cf. Pope John Paul II, Sollicitudio Reis Socialis ¶ 36 (Dec. 30, 1987),
available at http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/
hf_jp-ii_enc_30121987_sollicitudo-rei-socialis_en.html (“ ‘Sin’ and ‘structures of sin’ are
categories which are seldom applied to the situation of the contemporary world.
However, one cannot easily gain a profound understanding of the reality that confronts
us unless we give a name to the root of the evils which afflict us.”).
308
See supra note 296.
309
See supra note 289 and accompanying text. The concept of “coerced” virtue
is arguably a contradiction in terms. Cf. Barnett, supra note 222, at 669 (“Although
principles of natural-law ethics can be used to guide one’s conduct, they should not be
enforced coercively by human law if doing so would violate the moral space or liberty
defined by natural rights.”).
310
See GEORGE, supra note 268, at 27, 44.
305
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4. Summary of the Natural Law Approach
Thus, from a natural law perspective, a laissez-faire
solution to the problem of analyst conflicts would be rejected,
and a rule merely requiring disclosure of such conflicts would
likewise be deemed insufficient. Instead, the natural law
theorist would endorse an antifraud rule barring the
misstatement of analyst opinions and, perhaps even more
enthusiastically, endorse a structural remedy that would
reduce, if not eliminate, the problematic conflicts of interest
themselves.
Lastly, one cannot ignore those who have questioned the
utility of natural law reasoning on the ground that it fails to
provide a certain, clear method of generating solutions to realworld problems.311 It is admittedly the case that “the natural
law does not determine once and for all the perfect scheme
of . . . regulation. A number of different schemes . . . are
consistent with the natural law.”312 However, natural law
philosophy does provide the policy maker with principles that
guide his or her decision-making, and application of these
guiding principles can lead a policy maker to favor one
potential remedy to a problem over another. In light of this, the
flexibility left open to the policy maker by natural law
reasoning is an advantage rather than a disadvantage to its
use. Finally, it should be noted that, at least based upon an
examination of the research analyst conflicts of interest
problem, the mainstream law and economics approach does not
appear any more determinate than the natural law approach.
CONCLUSION
The U.S. securities laws were predicated upon an
appreciation of virtue and vice. Their interrelated objectives
and concerns included (1) the promotion of a fairer, more
virtuous securities industry, (2) the protection of the individual
investor, and (3) the good health of capital markets. Over time,
in no small part due to the advance of law and economics
thinking, the first of these objectives has been all but forgotten,
and some scholars today even question the second. What is
needed in order to recover respect for the entirety of concerns
311
See, e.g., Walter J. Walsh, The Fearful Symmetry of Gay Rights, Religious
Freedom, and Racial Equality, 40 HOW. L.J. 513, 548 (1997).
312
GEORGE, supra note 288, at 108 (using “traffic regulation” as an example).
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that spawned the U.S. securities regulatory regime is an
approach to securities regulation that shares these concerns. In
natural law philosophy we have such an approach.
Via the examination of a particular securities law
problem—that of research analyst conflicts of interest—this
Article has attempted to demonstrate the benefits of a natural
law approach to securities regulation. Unlike the economic
approach, which favored solutions not entirely consonant with
the values or full range of objectives of U.S. securities law, the
natural law approach favored solutions consistent with all
these values and objectives. The high value placed on veracity
within the natural law tradition, in addition to the tradition’s
recognition that efforts should be undertaken to remove or
reduce those root influences that tempt wrongdoing, coincide
well with U.S. securities regulation in both theory and practice.
Also coinciding is the perceived importance of moral character
and virtue.
But the differences between a natural law approach and
a law and economics approach should not be unduly inflated.
As each approach is grounded in an understanding of human
nature and behavior (albeit, an understanding that at times
diverges), there is room for significant agreement between
them. Additionally, the analytical power of the law and
economics approach cannot be gainsaid. Perhaps the optimal,
eventual result of this inquiry would be the proper integration
of the economic approach to law within the broader framework
of natural law thinking.
Reconciling Individual and Group
Justice with the Need for Repose in
Nazi-Looted Art Disputes
CREATION OF AN INTERNATIONAL TRIBUNAL
Jennifer Anglim Kreder†
Nazi-looted art has been the subject of much recent
litigation1 and many news reports.2 Given both the vast
†
Associate Professor of Law, Salmon P. Chase College of Law, Northern
Kentucky University; J.D. Georgetown University Law Center; B.A. University of
Florida. The Author was a litigation associate at Milbank, Tweed, Hadley & McCloy
LLP where she worked on art disputes and inter-governmental Holocaust negotiations
and litigation before entering academia. The Author wishes to thank Carol
Bredemeyer, Amy Diers, Shirley Ketron, Kristin Messer, and Megan Mersch for their
assistance. Special thanks to Derek Fincham, Tom Kline, Norman Palmer, Randy
Schoenberg, Kurt Siehr, and Matthias Weller for their comments and suggestions. A
draft of this Article was presented at the Association of American Law SchoolsAmerican Society of International Law Joint Conference on International Law in
Vancouver, Canada on June 18, 2007, at Chase on November 8, 2007, at Washington
University School of Law on November 30, 2007, and at the Association of American
Law Schools Annual Meeting to the Section on International Human Rights on
January 4, 2008. Thanks to all those who offered comments. This Article is dedicated to
Alex and Brodie. The author may be contacted via e-mail at [email protected].
1
See Stephen W. Clark, World War II Restitution Cases, SL077 A.L.I.-A.B.A.
541 (2006) (describing numerous Nazi-looted art claims faced by American
institutions); see also Austria v. Altmann, 541 U.S. 677, 680-81 (2004); Orkin v. Taylor,
487 F.3d 734, 735-36 (9th Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3073 (Aug. 16,
2007) (No. 07-216); Max Stern Estate v. Bissonnette, No. 06-211 (D. R.I. filed May 8,
2006); Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802, 804-05 (N.D. Ohio 2006);
Schoeps v. Andrew Lloyd Webber Art Found., No. 06-12934 (S.D.N.Y. filed Nov. 6,
2006); United States v. Painting Entitled “Femme en Blanc,” 362 F. Supp. 2d 1175,
1178 (C.D. Cal. 2005); Alsdorf v. Bennigson, No. 04-5953, 2004 WL 2806301, at *2
(N.D. Ill. Dec. 3, 2004); United States. v. Portrait of Wally, 105 F. Supp. 2d 288, 289
(S.D.N.Y. 2000); Rosenberg v. Seattle Art Museum, 42 F. Supp. 2d 1029, 1031 (W.D.
Wash. 1999); Bennigson v. Alsdorf, No. B168200, 2004 WL 803616, at *1 (Cal. Ct. App.
Apr. 15, 2004); In re Grand Jury Subpoena Duces Tecum Served on Museum of Modern
Art, 719 N.E.2d 897, 899 (N.Y. 1999); Peters v. Sotheby’s Inc. (In re Peters ex rel.
Estate of Ash), 821 N.Y.S.2d 61, 63 (App. Div. 2006); Warin v. Wildenstein & Co., 746
N.Y.S.2d 282 (App. Div. 2002); Wertheimer v. Cirker’s Hayes Storage Warehouse, Inc.,
No. 105575, 2001 WL 1657237, at *1 (N.Y. Sup. Ct. Sept. 28, 2001).
2
The following are just a few articles from 2006: Martin Bailey, Revealed:
National Gallery’s Cranach Is War Loot, THE ART NEWSPAPER, Nov. 27, 2006, available
at http://www.theartnewspaper.com/article01.asp?id=520 (describing discovery in
London museum concerning Cupid Complaining to Venus); Kelly Crow, The Bounty
155
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magnitude of unrestituted Nazi-looted art3 and the revival of
research into newly opened World War II-era governmental
archives,4 the rise in interest in Nazi-looted art is not
surprising even though sixty years have passed since the end of
the war. Most legal academic literature on the subject focuses
on statute of limitations issues, concludes that the statute of
limitations would be an insurmountable hurdle in many cases,
and either advocates in favor of tolling the limitations period5
or encourages voluntary submission to alternate dispute
resolution for Solomonic decree.6 This Article proposes that the
Hunters, WALL ST. J., March 23, 2007 (describing soaring art prices creating a boom
market in reclaiming stolen works); Anemona Hartocollis, Judge Refuses to Halt
Auction of Picasso, N.Y. TIMES, Nov. 8, 2006, at B6 (describing dismissal of suit for
Portrait of Angel Fernandez de Soto brought by family of Jewish banker persecuted by
the Nazis and noting plaintiff’s intent to re-file in state court); Robin Pogrebin, Met
Won’t Show a Grosz at Center of a Dispute, N.Y. TIMES, Nov. 15, 2006, at E1 (describing
Met’s refusal to display painting with Nazi-era provenance problem); Carol Vogel, $491
Million Sale at Christie’s Shatters Art Auction Record, N.Y. TIMES, Nov. 9, 2006, at B1
(reporting on Christie’s withdrawal of painting from auction despite dismissal of
lawsuit and Christie’s consideration of suing the plaintiff); Brigitte Werneburg, Raiders
of the Lost Art, DIE TAGESZEITUNG, Nov. 6, 2006, translated in SIGNANDSIGHT.COM,
Nov. 7, 2006, http://www.singandsight.com/features/1036.html (reviewing the dispute
surrounding the sale of Ernst Ludwig Kirchner’s Berlin Street Scene).
3
See Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining
Title to Valuable Artwork, 23 SEATTLE U. L. REV. 631, 660 (2000) (“According to Ronald
Lauder, a former U.S. ambassador to Austria and now chairman of the Museum of
Modern Art in New York, ‘more than 100,000 pieces of art, worth at least $10 billion in
total, are still missing from the Nazi era.’ Mr. Lauder believes that ‘because of these
large numbers, every institution, art museum and private collection has some of these
missing works.’” (citations omitted)); see also Julia Parker, World War II & Heirless
Art: Unleashing the Final Prisoners of War, 13 CARDOZO J. INT’L & COMP. L. 661, 663
(2005) (“Some scholars purport that approximately fifty percent of the works displaced
during the Nazi era remain unfound.”).
4
See generally Paulina McCarter Collins, Has “The Lost Museum” Been
Found? Declassification of Government Documents and Report on Holocaust Assets
Offer Real Opportunity to “Do Justice” for Holocaust Victims on the Issue of Nazi-Looted
Art, 54 ME. L. REV. 115 (2002); Robert Schwartz, The Limits of the Law: A Call for a
New Attitude Toward Artwork Stolen During World War II, 32 COLUM. J.L. & SOC.
PROBS. 1 (1998) (discussing European governments’ opening of archives and first-time
admissions of possession of Nazi-looted art); see also Mark Landler, Documents from
Vast Nazi Archive to Be Made Available to Scholars, N.Y. TIMES, May 16, 2007, at A3;
Associated Press, New Nazi Files on Holocaust to Be Opened, N.Y. TIMES, May 17,
2006, at A5; David Stout, After Resisting for Decades, Germany Agrees to Open
Holocaust Archive, N.Y. TIMES, Apr. 19, 2006, at A11.
5
E.g., Stephanie Cuba, Note, Stop the Clock: The Case to Suspend the
Statute of Limitations on Claims for Nazi-Looted Art, 17 CARDOZO ARTS & ENT. L.J.
447, 450 (1999).
6
E.g., Rebecca Keim, Filling the Gap Between Morality and Jurisprudence:
The Use of Binding Arbitration to Resolve Claims of Restitution Regarding Nazi-Stolen
Art, 3 PEPP. DISP. RESOL. L.J. 295 (2003) (discussing how the judicial system is illequipped to handle Nazi-looted art claims and advocating for resolution via
arbitration); Alan G. Artner, Ethics and Art: Museums Struggle for Correct Response to
Stolen Art Claims, CHI. TRIB., Aug. 16, 1998, at 6 (quoting Constance Lowenthal, then
Director of the Commission for Art Recovery of the World Jewish Congress in New
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
157
most just and effective solution would be to create an
international tribunal with compulsory jurisdiction to resolve
all such disputes and clear title to artwork. This Article
proposes criteria to reconcile the tension between (1) the desire
to restitute art to deserving claimants who likely could
overcome traditional legal hurdles without forcing them to
incur the agony and expense of U.S. litigation;7 (2) the desire to
provide justice to those claimants who could not launch
successful litigation but who seem to have valid claims
nonetheless;8 and (3) the need of museums, galleries, auction
houses, and individual bona fide purchasers of art for repose.9
From 1998 to 1999, the creation of a restitution
commission to resolve Nazi-looted art disputes was discussed—
at least peripherally—in art law circles.10 To date, no such
York, as stating that “[arbitration] certainly is a possibility, because these cases—
which keep arriving with alarming regularity—and the laws that have been made with
them, particularly those involving World War II, are not well-known by most judges.”).
7
Litigating even strong Nazi-looted art claims usually is very time
consuming, aggravating, and expensive because of their complexity. Monica Dugot,
International Law Weekend Panel on Litigating the Holocaust in U.S. Courts, 12 ILSA
J. INT’L & COMP. L. 389, 390 (2006) (“The emotional and financial costs associated with
litigation are high. The legal costs can easily end up being a sizable percentage of the
actual value of the work. Indeed, the legal costs can easily exceed the value of the
work.”); Ralph E. Lerner, The Nazi Art Theft Problem and the Role of the Museum: A
Proposed Solution to Disputes over Title, 31 N.Y.U. J. INT’L L. & POL. 15, 36 (1998) (“[A]
matter involving a claim for an artwork stolen during World War II will take between
seven and twelve years to resolve.”); Carol Vogel, Driven by International Bidders,
Prices Soar at Sotheby’s Sale with No Blockbuster, N.Y. TIMES, May 9, 2007, at B4
(describing the increasing value of the art market generally as new international
wealth drives prices to new heights). See generally HOWARD J. TRIENENS, LANDSCAPE
WITH SMOKESTACKS: THE CASE OF THE ALLEGEDLY PLUNDERED DEGAS (2000)
(describing financial realities of bringing a successful claim). Thomas Kline, a
successful plaintiffs’ attorney in the field, has reportedly stated: “I am almost at the
point where I would say that if the art is worth less than $3 million, give up.” Marilyn
Henry, Holocaust Victims’ Heirs Reach Compromise on Stolen Art, JERUSALEM POST,
Aug. 16, 1998, at 3.
8
This concept is akin to the idea of “rough justice” used by Ambassador
Stuart Eizenstat as a guiding light in the slave and forced labor negotiations, which led
to the signing of treaties and creation of tribunals in European nations to compensate
Holocaust survivors. STUART EIZENSTAT, IMPERFECT JUSTICE: LOOTED ASSETS, SLAVE
LABOR, AND THE UNFINISHED BUSINESS OF WORLD WAR II 129-30, 353 (2003); see also
Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical
Wrongs, 103 COLUM. L. REV. 689 (2003) (analyzing ethical individualism versus group
reparations theories).
9
See John G. Petrovich, The Recovery of Stolen Art: Of Paintings, Statues,
and Statutes of Limitations, 27 UCLA L. REV. 1122, 1127-28 (1980); see also, e.g., Adam
Zagorin, Saving the Spoils of War, TIME, Dec. 1, 1997, at 87 (reporting defense lawyer’s
simple statement of the problem: “At what point is it safe for an honest man to buy a
painting from a reputable dealer?”).
10
Owen Pell, The Potential for a Mediation/Arbitration Commission to
Resolve Disputes Relating to Artworks Stolen or Looted During World War II, 10
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[Vol. 73:1
commission exists.11 The “professional art world leaves each
defendant who unluckily ends up with Nazi-stolen artwork to
fend for itself.”12 The push in the late 1990s for Holocaust
reparations also did not resolve the Nazi-looted art problem.13
It seems that the momentum was lost after the signing of the
“French Agreement,” which established a new survivor fund in
France, on President Clinton’s last day in office.14 U.S.
Ambassador Stuart Eizenstat, who spearheaded the
agreement’s negotiations, has lamented the “unfinished
business” of the Holocaust reparations movement.15
Research over the past nine years exposing the quantity
and value of art for which claims remain calls for
reconsideration of the idea to create a commission.16 This
commission would have compulsory, not voluntary, jurisdiction
to resolve Nazi-looted art disputes. With the prospect of an
DEPAUL-LCA J. ART & ENT. L. 27, 46-47 (1999) [hereinafter Pell 1999]; Lerner, supra
note 7, at 36.
11
Pell’s proposal, which he later modified to contemplate utilizing the
Permanent Court of Arbitration, was considered by the European Parliament, but
never implemented. See Owen Pell, Using Arbitral Tribunals to Resolve Disputes
Relating to Holocaust-Looted Art, in RESOLUTION OF CULTURAL PROPERTY DISPUTES
307, 325 (The Int’l Bureau of the Permanent Court of Arbitration ed., 2004)
[hereinafter Pell 2004]; EUR. PARL. DOC. A5-0408/2003 (2003) (adopting COMM’N ON
LEGAL AFFAIRS AND THE INTERNAL MARKET, REPORT ON A LEGAL FRAMEWORK FOR FREE
MOVEMENT WITHIN THE INTERNAL MARKET OF GOODS WHOSE OWNERSHIP IS LIKELY TO
BE CONTESTED (2002/2114(INI) (2003))). For additional information about the
Permanent Court of Arbitration, see generally THE PERMANENT COURT OF
ARBITRATION, PERMANENT COURT OF ARBITRATION: BASIC DOCUMENTS (2005), available
at http://www.pca-cpa.org/showpage.asp?pag_id=1030; INT’L COUNCIL FOR COMMERCIAL
ARBITRATION, NEW HORIZONS IN INTERNATIONAL COMMERCIAL ARBITRATION AND
BEYOND (Albert Jan Van Den Berg ed., 2005); H.M. HOTZMANN & B.E. SHIFMAN,
DISPUTE SETTLEMENT: GENERAL TOPICS: 1.3 PERMANENT COURT OF ARBITRATION
(U.N. Course on Dispute Settlement in Int’l Trade, Investment and Intellectual
Property 2003), available at http://www.unctad.org/en/docs/edmmisc232add26_en.pdf;
INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION: PAST, PRESENT AND FUTURE (The
Int’l Bureau of the Permanent Court of Arbitration ed., 2000); THE PERMANENT COURT
OF ARBITRATION: INTERNATIONAL ARBITRATION AND DISPUTE RESOLUTION (P. Hamilton
et al. eds., 1999).
12
Michael J. Bazyler & Amber L. Fitzgerald, Trading with the Enemy:
Holocaust Restitution, the United States Government and American Industry, 28
BROOK. J. INT’L L. 683, 711 (2003).
13
See infra Part II.A.
14
See generally EIZENSTAT, supra note 8; see also infra Part II.A.
15
EIZENSTAT, supra note 8, at 359 (referring primarily, but not exclusively, to
Central and Eastern European property claims).
16
E.g., Rachel Lasserson, Art Restitution Cases to Rocket, JEWISH CHRON.,
Jan. 18, 2007, available at http://www.thejc.com. A prospective administration change
in the White House in 2008 could also lend support to the creation of a commission. See
id. (quoting Ambassador Eizenstat, “Art restitution has not been a focus of the Bush
administration.”).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
159
explosion of claims,17 the art community of museums, collectors,
dealers, and galleries needs an effective remedy—and
Holocaust survivors and their families deserve the highest
measure of justice achievable.18
This Article proposes the creation of a Nazi-Looted Art
Tribunal (“Tribunal”). Section I demonstrates the need for the
Tribunal. Section II outlines the basic blueprint for creating
the Tribunal. Section III concludes that creating the Tribunal
is superior to the current ad hoc manner of resolving claims
through individually fueled litigation, mediation, arbitration,
and negotiation. This Article does not lay out the dense factual
background of Nazi looting, which has been discussed
extensively in numerous books and articles, many of which are
cited herein.19
I.
A TRIBUNAL IS NEEDED
Before reaching the conclusion that an international
tribunal should be created, one must conclude that disputes
concerning artwork are worthy of such an extraordinary
remedy.20 It may seem a bit callous to be so concerned about
lost art when so many people perished.21 Even within the
Jewish community, creating a tribunal to resolve Nazi-looted
art disputes would not be without controversy.22
17
See generally GUNNAR SCHNABEL & MOIKA TATZKOW, NAZI LOOTED ART:
HANDBUCH KUNSTRESTITUTION WELTWEIT (2007).
18
One recent proposal by European scholars mirrors the sentiment to create
an international Nazi-Looted Art Tribunal. See Anne Niethammer & Maria O.
Wantuch, Compensation for Nazi Wrongdoing: The Case for an Integrated Approach 12
ART, ANTIQUITY & LAW 29, 29-30 (2007).
19
E.g., THE SPOILS OF WAR: WORLD WAR II AND ITS AFTERMATH: THE LOSS,
REAPPEARANCE, AND RECOVERY OF CULTURAL PROPERTY (E. Simpson ed., 1997);
JEANETTE GREENFIELD, THE RETURN OF CULTURAL TREASURES (2d ed. 1996); LYNN H.
NICHOLAS, THE RAPE OF EUROPA: THE FATE OF EUROPE’S TREASURES IN THE THIRD
REICH AND THE SECOND WORLD WAR (1994).
20
“The unprecedented scale of the tragedy of the Holocaust requires
extraordinary methods to remedy its effects, and this also applies in the field of
culture.” Wojciech W. Kowalski, Claims for Works of Art and Their Legal Nature, in
RESOLUTION OF CULTURAL PROPERTY DISPUTES, supra note 11, at 31, 42.
21
See Pell 1999, supra note 10, at 27 (“It can be indelicate, perhaps even
crass, to speak publicly about art looted during World War II because the loss of art, on
its face, relates to money and property, losses that are insignificant when compared to
the lives lost during the Holocaust.”).
22
Neal M. Sher et al., The Search for Nazi Assets: A Historical Perspective, 20
WHITTIER L. REV. 7, 11 (1998) (“There is concern that the final Holocaust issue will be
about assets, which are merely tangible remnants of intangible, insufferable human
loss.”); see generally Michael J. Kurtz, Resolving a Dilemma: The Inheritance of Jewish
Property, 20 CARDOZO L. REV. 625 (1998) [hereinafter Kurtz 1998] (discussing
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It must not be forgotten, however, that one core part of
the Nazis’ proposed Final Solution was the destruction of
Jewish culture and the targeted pillaging of its art.23 The Nazis
maintained “that Jews had intentionally duped the German
people into embracing nontraditional aesthetic styles” and
“that they had promoted modern art as a ploy to reap huge
profits.”24 Hitler sought to eliminate Jewish culture from the
Third Reich, including modern art, which he deemed
“degenerate.”25 The Nazi regime targeted such art initially to
destroy it, and then after recognizing its value in the market,
to trade it for other works or sell it to raise capital to fuel its
racist regime.26 Post-war governments in Germany, Austria,
and France passed legislation to invalidate such racially
motivated transactions entered into under the Nazi and Vichy
regimes.27 Post-war claims tribunals were created in European
nations for victims to reclaim lost and stolen property, but did
not always operate to effect justice.28
controversies over distribution of heirless art after the war). Controversy generated
immediately after the war by Israeli-German reparations negotiations is discussed in
ELAZAR BARKAN, THE GUILT OF NATIONS: RESTITUTION AND NEGOTIATING HISTORICAL
INJUSTICES 25 (2000) (“The right-wing opposition in Israel led the political fight against
German reparation. Menachem Begin, still a young leader, led mass demonstrations
against the Israeli government and called it an accomplice to German blood money,
while supporters of the government characterized him and the violent street
demonstrations as Fascist. Never has Israeli society been so fractured, or the
government so close to succumbing to direct political action, as it was during this
debate. But because it was taking place against the background of an urgent need for
economic relief, the eventual outcome of the moral and ideological debate was
determined by material necessities.”).
23
MICHAEL J. KURTZ, AMERICA AND THE RETURN OF NAZI CONTRABAND: THE
RECOVERY OF EUROPE’S CULTURAL TREASURES 15 (2006) [hereinafter KURTZ 2006]; see
generally HECTOR FELICIANO, THE LOST MUSEUM: THE NAZI CONSPIRACY TO STEAL THE
GREATEST WORKS OF ART 185 (1997).
24
JONATHAN PETROPOULOS, ART AS POLITICS IN THE THIRD REICH 54 (1996).
25
Id. at 9.
26
See NORMAN PALMER, MUSEUMS AND THE HOLOCAUST: LAW, PRINCIPLES
AND PRACTICE 7-8 (2000).
27
See id. at 122-23 (Germany), 119-20 (Austria), 121-22 (France).
28
See, e.g., Constance Lowenthal, Edited Presentation, 31 N.Y.U. J. INT’L L. &
POL. 133, 135 (1998). One also must not overlook that soldiers engaged in some looting
as well. E.g., KURTZ 2006, supra note 23, at 15; see also Kunstsammlungen zu Weimar
v. Elicofon, 536 F. Supp. 829, 830 (E.D.N.Y. 1981) (involving defendant’s 1946 purchase
of paintings from an American serviceman); Martin Bailey, Revealed: Six Paintings in
Maritime Museum Were Seized by British Troops from Nazi Germany, THE ART
NEWSPAPER, Feb. 1, 2007, available at http://www.patrimoniosos.it/rsol.php?op=
getarticle&id=27160; Glenn Collins, New Hopes of Finding Lost and Looted Art, N.Y.
TIMES, June 20, 1990, at C11 (quoting Ely Maurer, an assistant legal advisor on
cultural property for the State Department: “After the war, the Army prosecuted
‘dozens of soldiers for taking stolen property and trying to sell it . . . .’ ” Maurer
estimated that the State Department brought about restitution of 300 looted objects in
the United States.); William H. Honan, It’s Finally Agreed: Germany to Regain a Stolen
2007]
A.
RESOLVING NAZI-LOOTED ART DISPUTES
161
Recent Litigation and Mass Settlements
Although Germany in the 1950s paid out an estimated
DM 100 billion in accordance with its post-war compensation
laws and several bilateral treaties,29 these agreements were
interpreted by many as not having provided a final,
comprehensive settlement—hence the recent litigation. For
example, survivors east of the Iron Curtain could not assert
valid claims pursuant to West Germany’s Federal
Compensation Law of 1956.30 Similar gaps existed in the postwar reparations mechanisms of other European nations,31 but
the onset of the Cold War and implementation of the Marshall
Plan seem to have allowed the need for Western European
economic revival to overshadow the call for full post-war
reckoning for survivors’ claims.32
In 1997, the German Federal Constitutional Court
decided a landmark case. Krakauer v. Germany33 has been read
by many to have “abrogate[d] the temporary immunity from
suit for claims arising out of World War II that had been
granted to German industry by the London Debt Agreement of
1953.”34 As a consequence of the case, plaintiffs’ lawyers in the
Trove, N.Y. TIMES, Feb. 26, 1992, at C15 (“After a year and a half of wrangling,
representatives of the German Government and the heirs of Joe T. Meador, an
American Army officer who stole a nearly priceless collection of medieval treasures
from a mineshaft outside of Quedlinburg in the final days of World War II, completed
an agreement yesterday to return the artworks to Germany.”).
29
Detlev Vagts & Peter Murray, Litigating the Nazi Labor Claims: The Path
Not Taken, 43 HARV. INT’L L.J. 503, 507 (2002).
30
See id. at 508. It must be noted that the post-war German government
returned located property to those who asserted valid claims. See Kurtz 1998, supra
note 22, at 652.
31
See, e.g., ROBBERY AND RESTITUTION: THE CONFLICT OVER JEWISH
PROPERTY IN EUROPE 99-258 (Martin Dean et al. eds., 2007) (describing post-war
property claims practices in multiple countries).
32
E.g., Kurtz 1998, supra note 22, at 626 (“Though the commitment to
restore cultural property was supposedly absolute and unconditional, the political
failure of the Allied Control Council (‘ACC’) in Germany and the onset of the Cold War
in Eastern Europe raised significant barriers to a successful cultural restitution
effort.”).
33
Landgericht [LG] [trial court] 1*134/92 (1997), rev’d on other grounds,
Oberlandesgericht [OLG] [Court of Appeals] 7 U. 222/97 (1998) (F.R.G.).
34
E.g., Burt Neuborne, Preliminary Reflections on Aspects of Holocaust-Era
Litigation in American Courts, 80 WASH. U. L.Q. 795, 813 (2002) [hereinafter Neuborne
2002]. Neuborne further commented:
The London Debt Agreement of 1953 was, in effect, an international
bankruptcy workout plan for postwar West German industry, deferring
judicial consideration of liability for wartime behavior until the negotiation of
a peace treaty at some indefinite time in the future. By 1953, the
international community had realized that an economically viable West
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[Vol. 73:1
U.S. felt that it was possible to assert a wide range of suits
against German and other European companies.35 Thus,
lawsuits seeking compensation for slave and forced labor,
dormant bank accounts, unpaid insurance policies, and other
assets and obligations were filed.36
The first of the modern-era Holocaust class actions were
filed in the U.S. against Swiss banks in 1996 and 1997 and
consolidated before Judge Edward R. Korman in the Eastern
District of New York (in Brooklyn).37 As part of the $1.25 billion
settlement of those suits,38 more documents were released,
which assisted the plaintiffs’ lawyers in their lawsuits against
German, Austrian, French, and Italian governments,
industries, and banks.39
The Swiss bank settlement has been lauded by some,
but also criticized on many grounds—most recently because
much of the $800 million allocated for payment of dormant
bank accounts was not distributed to account holders.40 Instead,
Germany was a crucial link in Cold War efforts to contain Soviet expansion.
The fear was that immediate imposition of liability for wartime actions would
make it impossible for a strong postwar German economy to flourish. The
London Debt Agreement was designed to defer liability until the signing of a
formal peace treaty, at which time West German industry would be stronger
and the precise details of reparations could be provided for in the treaty.
Unfortunately for Holocaust victims, the Cold War made it impossible to
complete a peace treaty with Germany, rendering the deferral of German
industrial liability for wartime actions virtually permanent. The 1991 TwoPlus-Four Treaty . . . that paved the way for German reunification, was as
close to a peace treaty as the Allies managed to achieve. The importance of
the Krakauer opinion was its recognition that the deferral provisions of the
London Debt Agreement had been lifted by the signing of the Two-Plus-Four
Treaty, which was treated by the German Court as a de facto peace treaty.
Id. at 813 n.62.
35
Id. at 814; Robert A. Swift, Holocaust Litigation and Human Rights
Jurisprudence, in HOLOCAUST RESTITUTION: PERSPECTIVES ON THE LITIGATION AND ITS
LEGACY 50, 53-60 (Michael Bazyler & Roger P. Alford eds., 2006).
36
Neuborne 2002, supra note 34, at 814.
37
Melvyn I. Weiss, A Litigator’s Postscript to the Swiss Banks and Holocaust
Litigation Settlements: How Justice Was Served, in HOLOCAUST RESTITUTION, supra
note 35, at 103, 103-15; see also Edward R. Korman, Rewriting the Holocaust History of
Swiss Banks: A Growing Scandal, in HOLOCAUST RESTITUTION, supra note 35, at 115,
115-32. The first Holocaust-era class action actually filed in the United States was
Handel v. Artukovic in the Central District of California on behalf of survivors from
Yugoslavia against a former pro-Nazi Croatian official. 601 F. Supp. 1421, 1424 (C.D.
Cal. 1985). The suit was dismissed. Id. at 1437.
38
See generally Roger P. Alford, The Claims Resolution Tribunal and
Holocaust Claims against Swiss Banks, 20 BERKELEY J. INT’L L. 250 (2002).
39
HOLOCAUST RESTITUTION, supra note 35, at 53-56.
40
See Bazyler & Fitzgerald, supra note 12, at 712-14 (describing
disappointments with the Swiss Bank settlement); Burt Neuborne, A Tale of Two
Cities: Administering the Holocaust Settlements in Brooklyn and Berlin, in HOLOCAUST
2007]
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pursuant to the cy pres41 doctrine, Judge Korman allowed the
undistributed funds to be paid to Jewish nongovernmental
organizations to benefit needy survivors worldwide.42
In contrast to the Swiss bank settlement administered
under the aegis of a U.S. court, other class actions ended in the
creation of new institutions designed to compensate survivors.
For example, in 1998 the International Commission for
Holocaust-Era Insurance Claims (“ICHEIC”) was created to
provide a “swift track” for resolving claims utilizing “relaxed
levels of evidentiary proof.”43 The ICHEIC and founding
insurance companies have been criticized for failing to make
account information public or subject to independent review,
denying too many claims, processing claims too slowly, and
incurring $40 million in administrative costs, which diminish
the funds available for survivors and their heirs.44
National funds were created in Germany, Austria, and
France to compensate survivors for forced and slave labor
during the war, as well as for confiscated property and bank
The
German
foundation
“Remembrance,
accounts.45
Responsibility and the Future” (“German Foundation”) was
RESTITUTION, supra note 35, at 70 [hereinafter Neuborne 2006] (court-designated lead
settlement counsel describing process of administering Swiss settlement as
“Herculean”); Neuborne 2002, supra note 34, at 805-10 (providing a favorable view);
Benjamin E. Pollock, Comment, Out of Night and Fog: Permitting Litigation to Prompt
an International Resolution to Nazi-looted Art Claims, 43 HOUS. L. REV. 193, 199
(2006) (providing an objective view).
41
“The equitable doctrine under which a court reforms a written instrument
with a gift to charity as closely to the donor’s intention as possible, so that the gift does
not fail.” BLACK’S LAW DICTIONARY 415 (8th ed. 2004).
42
In re Holocaust Victim Assets Litig., 319 F. Supp. 2d 301, 303 (E.D.N.Y.
2004).
43
Funding for the ICHEIC was provided by a handful of major European
insurance agencies facing regulatory inquiries in the United States. Lawrence Kill &
Linda Gerstel, Holocaust-Era Insurance Claims: Legislative, Judicial, and Executive
Remedies, in HOLOCAUST RESTITUTION, supra note 35, at 239, 241. The insurers signed
a Memorandum of Understanding (MOU) with Jewish nongovernmental organizations,
the State of Israel, and U.S. state insurance regulators. Id. “The MOU was, in effect, a
nonbinding ‘agreement to agree’ on a framework for resolving claims.” Id.
44
See In re Assicurazioni Generali, S.p.A. Holocaust Ins. Litig., 228 F. Supp.
2d 348, 357 (S.D.N.Y. 2002) (referring to ICHEIC as a “company store”); Sidney
Zabludoff, ICHEIC: Excellent Concept But Inept Implementation, in HOLOCAUST
RESTITUTION, supra note 35, at 260, 260 (referring to “inept governance and poor
management”); Too Late, Too Slow, Too Expensive, THE ECONOMIST, Aug. 2, 2003, at
14; Editorial, The Holocaust Endures, BALT. SUN, July 14, 2002, at 4F (concluding,
based on reports by an investigative journalist, that the “ICHEIC is in need of
immediate and deep reform”); Richard Wolffe, Belief Wanes in Holocaust Insurance
Process, FIN. TIMES, Jan. 25, 2002, at 8 (“Both [U.S. and German] governments
admitted the system of settling claims was failing.”).
45
See generally HOLOCAUST RESTITUTION, supra note 35.
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established through agreements signed by various nations and
organizations, including the United States, Germany, Israel,
Jewish nongovernmental organizations, plaintiffs’ lawyers in
the U.S. litigation, and German industry and banking leaders.46
Groundwork for the funds in Austria and France followed a
similar diplomatic course.47 Unlike the ICHEIC and Swiss bank
settlement, these funds were created pursuant to national
legislation passed in each individual nation, and each is a
governmental institution run by national governmental
agencies. Most commentary about the distribution of
compensation through the funds has been positive48—albeit not
universally so.49 Finally, it must be noted that a condition for
collecting from any of the newly created funds, including the
Swiss bank settlement and ICHEIC, is that the claimant
forfeits the right to sue in any other forum.50 The nations and
institutions involved in establishing the funds and settlements
would not have been willing to make such large monetary
contributions—over $8 billion in all—had they not been
virtually guaranteed the end of all litigation against them
stemming from the Holocaust.51
Meanwhile, on the U.S. legal front, not all lawsuits were
stayed and not all plaintiffs voluntarily dismissed their cases.
New Jersey Federal District Court Judges Dickenson R.
Debevoise and Joseph A. Greenaway agreed with the defense
view of the litigation, and on September 13, 1999, both judges
dismissed the slave and forced labor suits pending before
46
Neuborne 2006, supra note 40, at 65-66.
Eric Freedman & Richard Weisberg, The French Holocaust-Era Claims
Process, in HOLOCAUST RESTITUTION, supra note 35, at 135, 135 (creation of France’s
Matteoli Commission); Hannah Lessing & Fiorentina Azizi, Austria Confronts Her
Past, in HOLOCAUST RESTITUTION, supra note 35, at 226, 230-31 (creation of Austria’s
General Settlement Fund).
48
E.g., Stuart Eizenstat, The Unfinished Business of the Unfinished Business
of World War II, in HOLOCAUST RESTITUTION, supra note 35, at 297, 298-301.
49
See NORMAN G. FINKELSTEIN, THE HOLOCAUST INDUSTRY: REFLECTIONS ON
THE EXPLOITATION OF JEWISH SUFFERING 151-53 (2d ed. 2000) (a widely criticized,
highly controversial book, see, e.g., Andrew Ross, “The Holocaust Industry” by Norman
G. Finkelstein, Salon.com, http://archive.salon.com/books/review/2000/08/30/finkelstein/;
see also Patricia Cohen, Outspoken Political Scientist Denied Tenure at DePaul, N.Y.
TIMES, June 11, 2007, at E2); Libby Adler & Peter Zumbansen, The Forgetfulness of
Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced
Laborers of the Third Reich, 39 HARV. J. ON LEGIS. 1, 1 (2002). For example, disputes
arose concerning contribution obligations with respect to a currency swap and interest
payments. See Gross v. German Found. Indus. Initiative, 456 F.3d 363, 371-74 (3d Cir.
2006); Neuborne 2006, supra note 40, at 72-73.
50
Neuborne 2006, supra note 40, at 61-62.
51
See, e.g., id.; Bazyler & Fitzgerald, supra note 12, at 82-91.
47
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
165
them.52 Plaintiffs appealed to the Third Circuit Court of
Appeals, but the appeals were adjourned in deference to the
imminent creation of the German Foundation.53 The vast
majority of the slave and forced labor plaintiffs across the
country voluntarily dismissed their claims to receive
compensation from the newly created funds.54
B.
Gap in Coverage as to Art
None of the recent agreements deals with the Nazilooted art problem. The Swiss bank class action allocated
money specifically for looted assets that were “stolen by the
Nazis and knowingly fenced through a Swiss bank,” but never
expressly addressed artwork or gave a definition of “fenced.”55
The German Foundation set aside DM 1 billion (approximately
$500 million) for the payment of property claims, but the
documents leading to the Foundation’s creation never mention
artwork.56 The French Agreement pertains exclusively to the
settlement of dormant bank accounts and does not mention
art.57 The ICHEIC agreement pertains only to unpaid
insurance policies and thus does not cover art, barring perhaps
a suit concerning a policy on artwork.58 Annex A to the
international treaty relevant to the Austrian National Fund
and General Settlement Fund expressly excludes actions as to
“in rem claims for works of art.”59 The result is a significant gap
52
Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 282 (D.N.J. 1999) (J.
Debevoise); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 460-61 (D.N.J. 1999) (J.
Greenaway).
53
Neuborne 2002, supra note 34, at 815.
54
See e.g., id.; see also In re Nazi Era Cases Against German Defendants
Litig., 198 F.R.D. 429, 430-31 (D.N.J. 2000) (approving voluntary dismissals by class
representatives).
55
See Neuborne 2002, supra note 34, at 808. Additional information related
to the Swiss bank settlement can be found at http://www.state.gov/p/ert/hlcst/
c11378.htm (last visited Aug. 20, 2007).
56
See Neuborne 2002, supra note 34, at 801.
57
Agreement Concerning Payments for Certain Losses Suffered During
World War II, U.S.-Fr., Jan. 18, 2001, State Dep’t No. 01-36, 2001 WL 416465,
available at http://www.ambafrance-us.org/news/statmnts/2001/civs2.asp [hereinafter
French Agreement].
58
See generally Kill & Gerstel, supra note 43 and accompanying text.
59
Exchange of Notes Constituting an Agreement, Annex A, ¶¶ 1, 2(a), 10,
U.S.-Austria, Jan. 17, 2001, 40 I.L.M. 565, 570-71, 577; see also Agreement Concerning
Austrian Fund “Reconciliation, Peace and Cooperation,” U.S.-Austria, Oct. 24, 2000,
40 I.L.M. 523 [hereinafter Austrian Agreement]. For additional documents related to
the Austrian Agreement, see http://www.usembassy.at/en/policy/restitution.htm. This
exclusion is related to the then-pending Altmann claims to the paintings by Gustav
Klimt. See infra Part II.B.
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in coverage under the new international agreements—and thus
substantial litigation potential.
One could surmise a few of the reasons for the exclusion
of art from the agreements. First, the value of the looted art
was so extremely high that art claims could potentially outstrip
the amount of funds allocated for all lost property.60 For
example, the value of two families’ claims, those of the BlochBauers (Altmann) and the Rothschilds, which were well-known
by the time of the signing of the Austrian Agreement, exceeded
half the total amount (approximately $800 million) allocated
for all claims within the Austrian Foundation.61 Second, the
idea of dedicating significant resources to compensation of
outstanding art claims would not be without controversy, with
many people feeling that compensation for slave and forced
labor is more important than compensation for “luxury” items.62
That is not to say, however, that the subject was forgotten or
not considered at the time negotiations to create the tribunals
were proceeding—the contrary is true, as explained in the next
section.
C.
Revival of Looted Art Awareness
In 1997, the Austrian Leopold Museum-Privatstiftung
(the Leopold) lent Egon Schiele’s Portrait of Wally to the New
York Museum of Modern Art (“MOMA”) for exhibition. MOMA
received letters from two individuals claiming to be heirs of the
rightful owner.63 Before the painting was to be returned to
Austria in 1999, the U.S. government caused the painting to be
seized because of its Nazi taint.64 During or before 1938,
Portrait of Wally was housed in the apartment of a Viennese
60
See, e.g., supra note 56 and accompanying text; see also Hannah Lessing et
al., The Austrian General Settlement Fund: An Overview, in REDRESSING INJUSTICES
THROUGH MASS CLAIMS PROCESSES 95, 103-04 (Permanent Court of Arbitration ed.,
2006) (explaining problems posed by moveable property).
61
See infra Part II.B (discussing Altmann arbitration and Rothschild claims).
62
E.g., Pell 1999, supra note 10, at 1 (“It can be indelicate, perhaps even
crass, to speak publicly about art looted during World War II because the loss of art, on
its face, relates to money and property, losses that are insignificant when compared to
the lives lost during the Holocaust.”).
63
See United States v. Portrait of Wally, No. 99 Civ. 9940, 2002 WL 553532,
at *1 (S.D.N.Y. Apr. 12, 2002); United States v. Portrait of Wally, 105 F. Supp. 2d, 288,
288-90 (S.D.N.Y. 2000); see also In re Grand Jury Subpoena Duces Tecum Served on
the Museum of Modern Art, 719 N.E.2d 897, 897-99 (N.Y. 1999).
64
Portrait of Wally, 105 F. Supp. 2d at 288-90.
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RESOLVING NAZI-LOOTED ART DISPUTES
167
gallery owner, Lea Bondi Jaray, an Austrian Jew.65 After
Germany annexed Austria in the Anschluss,66 Friedrich Welz,
an Austrian who later became a member of the Nazi party,
aryanized67 Ms. Bondi’s gallery and coerced her to give him
Portrait of Wally as well.68 After the war, the painting was
returned to the wrong family and subsequently sold to the
Galerie Belvedere (the Belvedere).69 The Belvedere essentially
subsequently sold the paining to the Leopold.70
Ms. Bondi took various steps short of a formal claim to
recover Portrait of Wally, but to no avail.71 Ms. Bondi passed
away in 1969.72 Efforts to recover Portrait of Wally seemingly
remained dormant until her heirs had an opportunity to have
the U.S. government seize the painting in late 1997.73 The case
is still pending. The seizure caused quite a stir in the art
world.74
In response to Portrait of Wally, the American
Association of Museum Directors (“AAMD”) attempted to
address the Nazi-looted art problem.75 In late 1997, the AAMD
created the Task Force on the Spoliation of Art during the
Nazi/World War II Era (1933-1945), which on June 4, 1998,
published guidelines for museums to deal with the Nazi-looted
65
All facts are taken as stated in the Third Amended Verified Complaint,
Portrait of Wally, 2002 WL 553532.
66
“Anschluss” can be defined generally as “the historical euphemism
describing Nazi Germany’s bloodless annexation of the post-World War I Austrian
Republic.” Brian F. Havel, In Search of a Theory of Public Memory: The States, the
Individual, and Marcel Proust, 80 IND. L. J. 605, 621 n.28 (2005).
67
“Aryanization” can be defined generally as the process “whereby Jews were
forced to sell their property to ‘Aryans’ at artificially low prices.” Portrait of Wally, 2002
WL 553532, at *1.
68
Id.
69
Id. at *2.
70
Id. at *3.
71
Id. at *3-4.
72
Id. at *4.
73
Id.
74
See, e.g., Jennifer Anglim Kreder, The Choice Between Civil and Criminal
Remedies in Stolen Art Litigation, 38 VAND. J. TRANSNAT’L L. 1199, 1226-31 (2005)
(providing extensive analysis of Portrait of Wally).
75
For background information about the American Association of Museums
(AAM) and the American Association of Museum Directors (AAMD), see Predita C.
Rostomian, Note, Looted Art in the U.S. Market, 55 RUTGERS L. REV. 271, 289-91
(2002). The “American Association of Museums (AAM) Board of Directors and the
International Council of Museums (ICOM) formed a joint working group in 1999 to
study issues of cultural property, particularly the Nazi looting of cultural property” and
issued guidelines similar to those of the AAMD. Marilyn Phelan, Cultural Property,
34 INT’L LAW. 697, 701 (2000); see also American Association of Museums, Nazi
Era Provenance, http://www.aam-us.org/museumresources/prov/index.cfm (last visited
Sept. 10, 2007).
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art issue.76 The guidelines provide, in part, that museums
should investigate their collections and “facilitate access” to
information about any works that seem to have gaps in
provenance related to World War II.77 The guidelines call for
76
See Phelan, supra note 75, at 701; see also Report of the AAMD Task Force
on the Spoliation of Art During the Nazi/World War II Era (1933-1945) [hereinafter
AAMD Report], http://www.aamd.org/papers/guideln.php (last visited Aug. 25, 2007).
77
AAMD Report, supra note 76, ¶ II(C)(1). Other relevant provisions
concerning provenance research and publication include the following:
II. Guidelines
....
A. Research Regarding Existing Collections
1. As part of the standard research on each work of art in their collections,
members of the AAMD . . . should begin immediately to review the
provenance of works in their collections to attempt to ascertain whether any
were unlawfully confiscated during the Nazi/World War II era and never
restituted.
2. Member museums should search their own records thoroughly and, in
addition, should take all reasonable steps to contact established archives,
databases, art dealers, auction houses, donors, art historians and other
scholars and researchers who may be able to provide Nazi/World-War-II-era
provenance information.
3. AAMD recognizes that research regarding Nazi/World-War-II-era
provenance may take years to complete, may be inconclusive and may require
additional funding. The AAMD Art Issues Committee will address the matter
of such research and how to facilitate it.
....
C. Access to Museum Records
1. Member museums should facilitate access to the Nazi/World War II-era
provenance information of all works of art in their collections.
2. Although a linked database of all museum holdings throughout the United
States does not exist at this time, individual museums are establishing web
sites with collections information and others are making their holdings
accessible through printed publications or archives. AAMD is exploring the
linkage of existing sites which contain collection information so as to assist
research.
....
III. Database Recommendations
A. [] AAMD encourages the creation of databases by third parties, essential
to research in this area. AAMD recommends that the databases being formed
include the following information (not necessarily all in a single database):
1. claims and claimants
2. works of art illegally confiscated during the Nazi/World War II era
3. works of art later restituted
B. AAMD suggests that the entity or entities creating databases establish
professional advisory boards that could provide insight on the needs of
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
169
extensive investigation and publication, but bemoan the fact
that there is limited funding for this work, particularly in
light of the absence of a central database of looting data.78
Under the AAMD guidelines, if a legitimate claimant to looted
art comes forward, the museum “should offer to resolve the
matter in an equitable, appropriate, and mutually agreeable
manner.”79 The guidelines also encourage the use of mediation80
and “encourage[] the creation of databases by third parties.”81
The AAMD guidelines greatly influenced the
Washington Conference on Holocaust-Era Assets (“Washington
Conference”), which was hosted by the United States in 1988
and was attended by forty-four nations and thirteen
various users of the database. AAMD encourages member museums to
participate in the work of such boards.
Id. ¶¶ II-III.
78
Id. ¶¶ II-III.
79
Id. ¶ II(D)(2), II(E)(2). The guidelines provide:
D. Discovery of Unlawfully Confiscated Works of Art
1. If a member museum should determine that a work of art in its collection
was illegally confiscated during the Nazi/World War II era and not restituted,
the museum should make such information public.
2. In the event that a legitimate claimant comes forward, the museum
should offer to resolve the matter in an equitable, appropriate, and mutually
agreeable manner.
3. In the event that no legitimate claimant comes forward, the museum
should acknowledge the history of the work of art on labels and publications
referring to such a work.
E. Response to Claims Against the Museum
1. If a member museum receives a claim against a work of art in its
collection related to an illegal confiscation during the Nazi/World War II era,
it should seek to review such a claim promptly and thoroughly. The museum
should request evidence of ownership from the claimant in order to assist in
determining the provenance of the work of art.
2. If after working with the claimant to determine the provenance, a member
museum should determine that a work of art in its collection was illegally
confiscated during the Nazi/World War II era and not restituted, the museum
should offer to resolve the matter in an equitable, appropriate, and mutually
agreeable manner.
3. AAMD recommends that member museums consider using mediation
wherever reasonably practical to help resolve claims regarding art illegally
confiscated during the Nazi/World War II era and not restituted.
Id.
80
81
Id. ¶ II(E)(3).
Id. ¶ III(A).
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nongovernmental organizations.82 The conference, which
concerned Nazi-looted art, led to the formation of the
Washington Principles.83 The Washington Principles establish
general goals and guidelines to generate research and
publication of Nazi-era provenance data and “encourage[]”
82
See Bazyler & Fitzgerald, supra note 12, at 710; PROCEEDINGS OF THE
WASHINGTON CONFERENCE ON HOLOCAUST-ERA ASSETS, app. F (J.D. Bindenagel, ed.,
1999), available at http://www.state.gov/www/regions/eur/holocaust/heac.html.
83
The complete Washington Principles read as follows:
In developing a consensus on non-binding principles to assist in resolving
issues relating to Nazi-confiscated art, the Conference recognizes that among
participating nations, there are differing legal systems and that countries act
within the context of their own laws.
1. Art that had been confiscated by the Nazis and not subsequently
restituted should be identified.
2. Relevant records and archives should be open and accessible to
researchers, in accordance with the guidelines of the International Council on
Archives.
3. Resources and personnel should be made available to facilitate the
identification of all art that had been confiscated by the Nazis and not
subsequently restituted.
4. In establishing that a work of art had been confiscated by the Nazis and
not subsequently restituted, consideration should be given to unavoidable
gaps or ambiguities in the provenance in light of the passage of time and the
circumstances of the Holocaust era.
5. Every effort should be made to publicize art that is found to have been
confiscated by the Nazis and not subsequently restituted in order to locate its
pre-War owners or their heirs.
6. Efforts should be made to establish a central registry of such information.
7. Pre-War owners and their heirs should be encouraged to come forward and
make known their claims to art that was confiscated by the Nazis and not
subsequently restituted.
8. If the pre-War owners of art that is found to have been confiscated by the
Nazis and not subsequently restituted, or their heirs, can be identified, steps
should be taken expeditiously to achieve a just and fair solution, recognizing
this may vary according to the facts and circumstances surrounding a specific
case.
9. If the pre-War owners of art that is found to have been confiscated by the
Nazis, or their heirs, can not be identified, steps should be taken
expeditiously to achieve a just and fair solution.
10. Commissions or other bodies established to identify art that was
confiscated by the Nazis and to assist in addressing ownership issues should
have a balanced membership.
11. Nations are encouraged to develop national processes to implement these
principles, particularly as they relate to alternative dispute resolution
mechanisms for resolving ownership issues.
Washington Conference Principles, http://www.lootedartcommission.com/lootedart_
washingtonprinciples.htm (last visited Aug. 25, 2007).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
171
claimants to “come forward.”84 They also call for “just and fair”
resolution of such claims.85 The Washington Principles do not
establish a uniform policy for the signatory nations. In fact, the
preamble expressly notes that “among participating nations,
there are differing legal systems and . . . countries act within
the context of their own laws.”86 Because of the wide-ranging
differences between the forty-four nations’ legal systems—in
particular concerning statutes of limitations and bona fide
purchaser issues—it is not surprising that a uniform approach
was not forthcoming.87
Even within the United States, for example, there are
disparate views as to what should happen to looted art found in
museums. The most common opinion seems to be that
restitution should be made if it is clear that the art was looted
and a valid claim is asserted,88 but that view is not universally
held. In contrast, Ralph E. Lerner, who wrote an article in 1998
calling for the creation of a Nazi-looted art commission,
maintained:
Works of art, even stolen works, should remain—under all
circumstances—in the American museum where they are now
located. This will eliminate the emotional issues involved in a
dispute over possession and ownership, and will encourage
museums’ cooperation in opening their records for the purpose of
tracing provenance.89
Although the AAMD guidelines and Washington
Principles were a good start for dealing with the Nazi-looted
art problem, they were only that. For example, rather than
firmly agreeing to create a central registry, the Washington
Principles provide: “Efforts should be made to establish a
84
Id. ¶ 7.
Id. ¶¶ 8-9.
86
Id. at Preamble.
87
See infra Part II.C.
88
See, e.g., Lawrence M. Kaye, Looted Art: What Can and Should Be Done, 20
CARDOZO L. REV. 657, 660-64 (1998).
89
Lerner, supra note 7, at 36. Israeli experts suggested a similar solution:
that all artworks remain in the museum in which they are found, but that the
victimized family’s loss be noted along with the art. Israeli Experts Propose Museums
Keep
Looted
Art,
Mar.
8,
2000,
available
at
http://www.museumsecurity.org/00/042.html#6. It was widely rejected as insufficient on the ground that it
would allow a museum that may have actively engaged in profiteering, or turned a
blind eye, to benefit at the expense of victims of the Nazis’ persecution and looting. Id.
85
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central registry of such information.”90 Additionally, the final
two sentences refer to “[c]ommissions or other bodies
established to identify art that was confiscated by the Nazis”
and states that such bodies should have “balanced
membership,” but does not call for the creation of such bodies
in nations where they did not already exist and does not
establish any other firm provisions for such bodies.91 Rather
than establish any firm obligations, the final sentence states:
“Nations are encouraged to develop national processes to
implement these principles, particularly as they relate to
alternative dispute resolution mechanisms for resolving
ownership issues.”92
There was one more significant international push to
deal with the problem. Nations met again in 2000 to build upon
the Washington Principles in Vilnius, Lithuania, under the
auspices of the Parliamentary Assembly of the Council of
Europe.93 The Vilnius Forum generated a declaration
expressing continued support of the Washington Principles
without significantly refining them or expanding upon them.94
90
Washington Conference Principles, supra note 83, ¶ 6. To be fair, it should
be noted that creating one worldwide registry does not appear to be feasible. See
Lowenthal, supra note 28, at 137-38.
91
Washington Conference Principles, supra note 83, ¶¶ 10-11.
92
Id. ¶ 11.
93
The Assembly’s web site states:
The Parliamentary Assembly of the Council of Europe (PACE), which held its
first session on 10 August 1949, can be considered the oldest international
parliamentary Assembly with a pluralistic composition of democratically
elected members of parliament established on the basis of an
intergovernmental treaty. The Assembly is one of the two statutory organs of
the Council of Europe, which is composed of a Committee of Ministers (the
Ministers of Foreign Affairs, meeting usually at the level of their deputies)
and an Assembly representing the political forces in its member states.
Parliamentary Assembly of the Council of Europe, Historical Overview,
http://assembly.coe.int/Main.asp?Link=/AboutUs/APCE_ history.htm (last visited Aug.
26, 2007).
94
The full declaration reads:
The Vilnius Forum,
Recognizing the massive and unprecedented looting and confiscations of art
and other cultural property owned by Jewish individuals, communities and
others, and the need to reach just and fair solutions to the return of such art
and cultural property,
Referring to Resolution 1205 of the Parliamentary Assembly of the Council of
Europe and the Washington Conference Principles of Nazi-Confiscated Art,
Noting in particular their emphasis on reaching just and fair solutions to
issues involving restitution of cultural assets looted during the Holocaust era
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RESOLVING NAZI-LOOTED ART DISPUTES
173
In fact, the preamble reaffirms the deference to national
differences because it calls for “just and fair solutions,” which
“may vary according to the different legal systems among
and the fact that such solutions may vary according to the differing legal
systems among countries and the circumstances surrounding a specific case,
Makes the following declaration:
1. The Vilnius Forum asks all governments to undertake every reasonable
effort to achieve the restitution of cultural assets looted during the Holocaust
era to the original owners or their heirs. To this end, it encourages all
participating States to take all reasonable measures to implement the
Washington Conference Principles on Nazi-Confiscated Art as well as
Resolution 1205 of the Parliamentary Assembly of the Council of Europe.
2. In order to achieve this, the Vilnius Forum asks governments, museums,
the art trade and other relevant agencies to provide all information necessary
to such restitution. This will include the identification of looted assets; the
identification and provision of access to archives, public and commercial; and
the provision of all data on claims from the Holocaust era until today.
Governments and other bodies as mentioned above are asked to make such
information available on publicly accessible websites and further to cooperate in establishing hyperlinks to a centralized website in association with
the Council of Europe. The Forum further encourages governments,
museums, the art trade and other relevant agencies to co-operate and share
information to ensure that archives remain open and accessible and operate
in as transparent a manner as possible.
3. In order further to facilitate the just and fair resolution of the above
mentioned issues, the Vilnius Forum asks each government to maintain or
establish a central reference and point of inquiry to provide information and
help on any query regarding looted cultural assets, archives and claims in
each country.
4. Recognizing the Nazi effort to exterminate the Jewish people, including
the effort to eradicate the Jewish cultural heritage, the Vilnius Forum
recognizes the urgent need to work on ways to achieve a just and fair solution
to the issue of Nazi-looted art and cultural property where owners, or heirs of
former Jewish owners, individuals or legal persons, cannot be identified;
recognizes that there is no universal model for this issue; and recognizes the
previous Jewish ownership of such cultural assets,
5. The Vilnius Forum proposes to governments that periodical international
expert meetings are held to exchange views and experiences on the
implementation of the Washington Principles, the Resolution 1205 of the
Parliamentary Assembly of the Council of Europe and the Vilnius
Declaration. These meetings should also serve to address outstanding issues
and problems and develop, for governments to consider, possible remedies
within the framework of existing national and international structures and
instruments.
6. The Vilnius Forum welcomes the progress being made by countries to take
the measures necessary, within the context of their own laws, to assist in the
identification and restitution of cultural assets looted during the Holocaust
era and the resolution of outstanding issues.
Vilnius Forum Declaration, Commission for Looted Art in Europe, available at
http://www.lootedartcommission.com/ viniusforum (last visited Nov. 3, 2007).
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countries and the circumstances surrounding a specific case.”95
On the call for publishing searchable information, the Vilnius
Principles are firmer than the Washington Principles in
that they call on “governments, museums, the art trade and
other relevant agencies” to make information concerning
looted assets in their collections “available on publicly
accessible websites and further to co-operate in establishing
hyperlinks to a centralized website in association with the
Council of Europe.”96 Further, “the Vilnius Forum ask[ed] each
government to maintain or establish a central reference and
point of inquiry to provide information and help on any query
regarding looted cultural assets, archives and claims in each
country.”97 Finally, Paragraph 5 called for periodic meetings to
continue dialogue about the Nazi-looted art problem,98 but since
2000 no new meetings appear to have been held or at least
none that have resulted in public reports.
Various nations have taken some steps in the spirit of
the Washington and Vilnius conferences. For example, the U.S.
Congress passed the Holocaust Victims Redress Act in 1998,
which recognizes that “[t]he Nazis’ policy of looting art was a
critical element and incentive in their campaign of genocide
against individuals of Jewish and other religious and cultural
heritage.”99 The Act further states that
all governments should undertake good faith efforts to facilitate the
return of private and public property, such as works of art, to the
rightful owners in cases where assets were confiscated from the
95
Id. at Preamble, ¶ 3.
Id. ¶ 2.
97
Id. ¶ 3.
98
Id. ¶ 5.
99
Holocaust Victims Redress Act, Pub. L. No. 105-158, § 201(4), 112 Stat. 15,
18 (1998). The full purposes of the Act are:
96
(1) To provide a measure of justice to survivors of the Holocaust all around
the world while they are still alive.
(2) To authorize the appropriation of an amount which is at least equal to
the present value of the difference between the amount which was authorized
to be transferred to successor organizations to compensate for assets in the
United States of heirless victims of the Holocaust and the amount actually
paid in 1962 to the Jewish Restitution Successor Organization of New York
for that purpose.
(3) To facilitate efforts by the United States to seek an agreement whereby
nations with claims against gold held by the Tripartite Commission for the
Restitution of Monetary Gold would contribute all, or a substantial portion, of
that gold to charitable organizations to assist survivors of the Holocaust.
Id. § 101(b).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
175
claimant during the period of Nazi rule and there is reasonable proof
that the claimant is the rightful owner.100
The Act also allocated $5 million for research into
unresolved Holocaust-era property claims.101 The Parliamentary
Assembly of the Council of Europe passed a resolution
mirroring the Vilnius Principles.102 Germany’s Handreichung
reflects ideals similar to those in the Washington Principles,
and in 2003 Germany established the Advisory Commission on
the Return of Cultural Property Seized as a Result of Nazi
Persecution, Especially Jewish Property, to mediate Nazilooted art claims if both sides agree to submit the dispute to
the commission.103 Austria enacted a law that allows it to waive
the statute of limitations defense in actions seeking recovery of
looted or aryanized art now located in public museums and
galleries.104 The French Foreign Ministry in 1998 published the
“MNR”105 catalog identifying almost 61,000 artworks that were
looted by the Nazis during World War II and never returned to
their rightful owners.106 Just over 2,000 of these works were
100
Id. § 202.
Id. § 103(b). California also passed a law extending the statute of
limitations in Holocaust-era art litigation against museums and galleries until 2010.
CAL. CIV. PROC. CODE § 354.3 (West 2004).
102
Looted Jewish Cultural Property Resolution, Parliamentary Assembly
of Europe Council Resolution No. 1205, November 4, 1999, available at
http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta99/eres1205.htm.
103
Matthias Weller, The Return of Ernst Ludwig Kirchner’s Berliner
Straßenszene—A Case Study, KUNSTRSP 2007, Feb. 2007, at 51. The Handreichung
seems to implement the rather rigid burden of proof rules from the Allied Forces
Restitution Legislation enacted shortly after World War II. See generally Harald König,
Claims for the Restitution of Holocaust-Era Cultural Assets and Their Resolution in
Germany, 12 ART, ANTIQUITY & LAW 59 (2007).
104
Rückgabe
von
Kunstgegenständen
aus
den
Österreichischen
Bundesmuseen [Federal Act on the Return of Cultural Objects from Austrian
Federal Museums and Collections] Bundesgesetzblatt Teil I [BGB1] No. 181/1998,
§ 1 (Austria) (cited in PALMER, supra note 26, at 178-79), available in English at
http://www.lootedart.com/MFEU4438589 (last visited Nov. 3, 2007).
105
MNR is an abbreviation of Musées Nationaux Récupération. The database,
which is solely in French, contains approximately 2000 objects and can be found at
Musées Nationaux Récupération, Catalogue des MNR, http://www.culture.gouv.fr/
documentation/mnr/pres.htm (last visited Aug. 25, 2007).
106
Musées Nationaux Récupération, Oeuvres récupérées apres la Seconde
Guerre mondiale, http://www.cnac-gp.fr/musee/mnr/index.htm (last visited Nov. 1,
2007); see also FELICIANO, supra note 23, at 216 (describing the discovery of looted art
in French collections); Prime Minister’s Decree, Decree Creating a Commission for the
Compensation of Victims of Spoliation Resulting from the Anti-Semitic Legislation in
Force During the Occupation, Decree 99-778 (1999) (Fr.), available in English at
http://www.civs.gouv.fr/download/uk/decrees/10_09_99.pdf; Agreement Concerning
Payments for Certain Losses Suffered During World War II, U.S.-Fr., Annex B, Jan.
18, 2001, State Dep’t No. 01-36, 2001 WL 416465 (describing the functioning of The
Commission for the Compensation of Victims of Spoliation Resulting from Anti-Semitic
101
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identified as being in French museums at the time the report
was published.107
France also committed significant funding to the
Matteoli Commission, a “historical commission”108 established
“to investigate various sectors of the French economy and
determine the property confiscated during the German
occupation.”109 Other countries and companies have created
similar historical commissions.110 Moreover, Germany,111 the
Netherlands,112 Austria,113 Russia,114 the Czech Republic,115
Legislation in Force during the Occupation) available at http://www.ambafranceus.org/news/statmnts/2001/civs2.asp. The resulting body is known as the Drai
Commission. Eric Freedman & Richard Weisberg, The French Holocaust-Era Claims
Process, in HOLOCAUST RESTITUTION, supra note 35, at 133, 138-40. Not all news
reports about the Drai Commission have been positive. E.g., Press Release, Regine
Elkan, Holocaust Art Claimant Files Suit Against French Prime Minister over a Major
Paris Museum Collection (Feb. 24, 2006), available at http://pressreleaseforum.com/
viewtopic.php?p=5089 (reporting on filing of law suit after denial of claim as to
furniture collection at Carnavalet Museum by the Drai Commission).
107
See Musées Nationaux Récupération, supra note 105.
108
Bazyler & Fitzgerald, supra note 12, at 712 (“European governments and
private companies have [as a consequence of the recent mass litigation] been forced to
examine and expose the truth about their histories during the Nazi era.”).
109
Pell 1999, supra note 10, at 47 (citing Samer Iskandar, French Bankers to
Support Government’s Plans, FINANCIAL TIMES UK, Dec. 2, 1998, at A12). It would be
neglectful not to mention that the Commission was created in the wake of the pressure
generated by U.S. litigation.
110
Bazyler & Fitzgerald, supra note 12, at 712-23; Michael Berenbaum,
Confronting History: Restitution and the Historians, in HOLOCAUST RESTITUTION,
supra note 35, at 43, 45.
111
The Lost Art Database is maintained by the Koordinierungsstelle für
Kulturgutverluste. Lost Art Internet Database, http://www.lostart.de (last visited Aug.
25, 2007).
112
The Netherlands maintains the “Origins Unknown” database of unrepatriated objects, which contains approximately 4000 objects. Origins Unknown,
http://www.herkomstgezocht.nl/eng/index.html (last visited Aug. 25, 2007).
113
The National Fund of the Republic of Austria maintains a database of an
unknown number of objects that are likely to have been looted during World War II.
Kunst-Datenbank des Nationalfonds [Art Database of the National Fund],
www.kunstrestitution.at (last visited Mar. 2007); see also infra notes 191-201 and
accompanying text (concerning creation of the Austrian fund).
114
Russia maintains a database searchable only in Russian. Fyedyeral’noye
Agyentstvo po Kul’turye i Kinyematografii [Federal Agency on Culture and Cinema],
Kulturye Tsyennosti: Zhyertvi Voyni [Cultural Treasures: Victims of War],
http://www.lostart.ru/ru/ (last visited Aug. 25, 2007). The criteria for inclusion in the
database is not clear, but presumably would exclude trophy art brought back by the
Soviet military as compensation for destruction of Slavic cultural property by the
Germans and still not returned. See generally KONSTANTIN AKINSHA & GRIGORII
KOZLOV, BEAUTIFUL LOOT: THE SOVIET PLUNDER OF EUROPE’S ART TREASURES (1995).
115
The Czech Republic maintains a registry of works that may have been
taken from Holocaust victims. Restitution-Art, http://www.restitutionart.cz/english/
main.html (last visited Aug. 25, 2007). The English web site has not been updated
since 2000. Id.
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RESOLVING NAZI-LOOTED ART DISPUTES
177
Hungary,116 and Poland117 established databases in addition
to the databases established by the Art Loss Register,118
Commission for Looted Art in Europe,119 the American
Association of Museums (“AAM”),120 and most recently
MyThings Inc.121 All told, however, governmental action to
identify and return Nazi-looted art to families, many of
whom may be unaware of their claims through no fault of their
own, has not been uniformly progressive, as evidenced by
recently asserted successful claims like the Altmann claim
discussed in Section II.B, infra.122 It appears indisputable that
116
Hungary seems to have a database, but its web site is not functioning:
http://www.koi.hu/restitucio/index.html (last visited Mar. 2007). See Konstantin
Akinsha, The Temptations of the ‘Total’ Database, in RESOLUTION OF CULTURAL
PROPERTY DISPUTES, supra note 11, at 162-63.
117
Poland maintains a database of over 400 oil paintings, pastels, and
watercolors lost between 1939 and 1945 within post-1945 borders of Poland. Wartime
Losses: Polish Painting, http://www.polamcon.org/lostart (last visited Aug. 25, 2007).
118
The Art Loss Register (“ALR”) lists stolen art of all types, not just art
looted during World War II, and is headquartered in London with offices in New York,
Germany, the Netherlands and India. Steven Swanson, Loss Database One Answer to
Art Thievery, CHI. TRIB., Oct. 4, 2006, at C12. As of October 2006, the ALR database
contained over 175,000 listings and claims to be the largest database in the world. Id.
The ALR has helped recover more than 1000 pieces of art worth upward of $100
million. The Art Loss Register, History and Business, http://www.artloss.com/content/
history-and-business (last visited Aug. 25, 2007).
119
The Central Registry of Information on Looted Cultural Property 19331945 was established by the Commission for Looted Art in Europe and is
headquartered in London. It maintains a database of 20,000 seemingly looted objects
and maintains links to information and web sites concerning forty of the countries
that participated in the Washington Conference. Press Release, The Central Registry
of Information on Looted Cultural Property 1933-45, http://www.lootedart.com/
PressRoom/PressRoom.asp (last visited Aug. 25, 2007). See also Lasserson, supra note
16.
120
The AAM has registered approximately 25,000 suspect objects identified by
museums around the world on its Nazi-Era Provenance Research Portal. Nazi-Era
Provenance Internet Portal, The Nazi-Era Provenance Internet Portal Project,
http://www.nepip.org (last visited Aug. 25, 2007).
121
See Trace, Looted Art, http://www.tracelootedart.com/index.asp?page=
about (last visited Oct. 31, 2007) (claiming to be “the most comprehensive database of
Nazi Era looted art available”).
122
In addition, the lack of full restitution must be viewed in light of the recent
trend to curtail jurisdiction over such claims, thereby reducing the number of possible
fora to hear them. This development further demonstrates the need for a neutral,
international tribunal so that valid claims may have a place to be heard. Rachel
Lasserson, The Scramble for Looted Art, JEWISH CHRON., Jan. 18, 2007, available at
http://www.thejc.com/ (quoting Norman Palmer, member of the United Kingdom’s
Spoliation Advisory Panel, as having stated: “If the UK adopts an anti-seizure statute,
other countries are likely to follow. The result will be to disqualify more and more
national courts as competent tribunals before which title claims can be brought.”);
Marilyn Henry, An Artful Dilemma, JERUSALEM POST, Jan. 23, 2007, at 14 (reporting
that the Israeli Knesset is considering adopting a controversial immunity from seizure
law to encourage international art loans to Israel).
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justice has not been done with regard to many families’ claims
to artworks.
D.
Financial Considerations
Justification for the creation of a tribunal also is
financial. Looking at the value of simply one looted painting
restituted last year—$135 million123—demonstrates the
importance of creating a tribunal to assist victims and help
museums, galleries, auction houses, and private bona fide
purchasers close this chapter on liability exposure. Although
$135 million is close to the highest reported price ever paid for
a painting,124 valuable looted art seems to be located more and
more frequently and eventually awarded to claimants.125 In
fact, art historians are being hired by plaintiffs’ lawyers to
search archives and discover claims of which families are not
presently aware.126 One expert in the area has estimated that
123
Carol Vogel, Lauder Pays $135 Million, a Record, for a Klimt Portrait,
N.Y. TIMES, June 19, 2006, at E1 (describing sale of Klimt restituted to Ms. Maria
Altmann from the Belvedere Gallery in Austria). The total for all paintings restituted
to Ms. Altmann from the Leopold Gallery was $327 million. Anna Schumann,
Tech Museum Brings Study of Stolen Art and Law Together, DAILY TOREADOR
(Texas Tech. Univ. student newspaper), Nov. 20, 2006, available at
http://media.www.dailytoreador.com/media/storage/paper870/news/2006/11/20/News/Te
chMusem.Brings.Study.Of.Stolen.Art.And.Law.Together469101.shtml?.
124
See Ben Sisario, Sale of Pollock Painting Becomes a Mystery, N.Y. TIMES,
Nov. 11, 2006, at B8 (reporting private sale of Jackson Pollock’s No. 5, 1948 for $140
million as the highest price ever paid for a painting).
125
MICHAEL J. BAZYLER, HOLOCAUST JUSTICE: THE BATTLE FOR RESTITUTION
IN AMERICA’S COURTS 205 (2003) (Austrian claims); PALMER, supra note 26, at 158
(same); Jeevan Vasagar, Art Looted by Nazis Handed Back to Czech Family, THE
GUARDIAN, Jan. 25, 2007, at 4; UK Gallery to Return Looted Art, BBC NEWS, Jan. 24,
2007, available at http://news.bbc.co.uk/2/hi/entertainment/6296007.stm; Philip Smet,
WWII Art: Looted, But from Whom?, RADIO NETHERLANDS, Nov. 30, 2006, available at
http://www.radionetherlands.nl/currentaffairs/ned061130mc; Martin Bailey, Revealed:
National Gallery’s Cranach Is War Loot, THE ART NEWSPAPER, Nov. 26, 2006, available
at http://www.theartnewspaper.com/article01.asp?id=520; Alan Riding, After 60 Years,
Austria Will Return a Munch Work to a Mahler Heir, N.Y. TIMES, Nov. 9, 2006, at
E8; Lawrence Van Gelder, Canada to Return Looted Vuillard, N.Y. TIMES, Aug. 21,
2006, at E2; Julie Mollins, Gallery Returns Painting Looted by Nazis, REUTERS,
Aug. 19, 2006; Germany Returns Painting to Jewish Heir, JEWISH WORLD, Dec. 6,
2006, available at http://www.ynetnews.com/articles/0,7340,L-3336763,00.html; Etgar
Lefkovits, News in Brief, JERUSALEM POST, Mar. 23, 2005, at 6 (Israeli Museum); see
also supra note 2 (providing additional news reports).
126
See, e.g., Carol Vogel, Art Looted, Then Recovered, Put Up for Bid, INT’L
HERALD TRIB., Feb. 23, 2007, at 2 (quoting Lawrence Kaye as stating: “We have
researchers working round-the-clock.”); see also Swiss Raid Bank Safe Belonging to
Late Nazi Art Thief, PR-INSIDE.COM, http://www.pr-inside.com/swiss-raid-bank-safebelonging-to-r141298.htm, June 1, 2007 (describing Swiss blackmail investigation in
connection with a request by a dealer and well-known art historian for finders fee to
broker return of Pissarro’s Le Quai Malaquais Printemps, which was looted by Bruno
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
179
$700 million of art has been restituted in the last five years.127
The trend is on the rise128—to the point that the creation of an
extraordinary international tribunal now is warranted.129
Further, although the AAMD, the AAM, and the
International Council of Museums have publicly advocated
for extensive provenance research, these organizations
predominantly represent the largest, most well-funded
museums in the Western world.130 Moreover, museum efforts
Lohse for Hermann Goering from Jewish publisher Samuel Fischer); accord Catherine
Hickley, Nazi-Looted Pissarro in Zurich Bank Pits Heiress Against Dealer,
BLOOMBERG.COM, June 6, 2007.
127
Schumann, supra note 123 (referring to Marc Masurovsky, co-founder of
the Holocaust Art Restitution Project); see also Museum Security Network Mailing
List, Czechs Lift Deadline for Holocaust Claims, Nov. 10, 2006, http://msnlist.te.verweg.com/2006-November/006296.html (noting the large amount of art to
which claims may be asserted); Sabina Casagrande, Germany Aims for Better
Restitution Process for Nazi-Looted Art, DEUTSCHE WELLE, Nov. 19, 2006, available at
http://www.dw-world.de/dw/article/0,2144,2242811,00.html (same); Sue Choi, The
Legal Landscape of the International Art Market After Republic of Austria v. Altmann,
26 NW. J. INT’L L. & BUS. 167, 191 (2005) (noting reports that over 2000 works have
been restituted since the Holocaust reparations movement began in the mid-1990s)
(quoting MICHAEL J. BAZYLER & KEARSON G. EVERITT, HOLOCAUST RESTITUTION
LITIGATION IN THE UNITED STATES: AN UPDATE, INTERNATIONAL CIVIL LIBERTIES
REPORT 11 (2004) (ACLU), available at http://www.aclu.org/iclr/bazyler.pdf).
128
Dugot, supra note 7, at 391. Dugot states:
Not surprisingly, as additional information continues to become available . . .
the number of Nazi-era claims is increasing. Moreover, these displaced works
are likely to surface more frequently in the next few years as collections are
passed on from one generation to the next. As children and grandchildren
inherit these objects, some will end up selling them, in all likelihood . . .
unaware of the complete provenance and therefore totally unaware of a
possible restitution problem.
Id. (paragraph break omitted).
129
Lasserson, supra note 16 (quoting Mark Stephens, an art lawyer at Finers
Stephens Innocent in London, commenting on the recent restitution of Ernst Ludwig
Kirchner’s Berlin Street Scene to Anita Halpin: “Now claims are doubling year on year
with concomitant levels of restitution. We are looking at large amounts of
compensation. Every year we are going to see bigger cases as governments formalise
their positions on this issue and put their national collections in order. It’s much less
clear what’s going to happen to those paintings in private collections, as detection isn’t
as good at private sales and auction houses.”).
The article also reported that the Albertina Museum in Vienna “is
currently dealing with around 4,000 claims, and the Leopold Museum is ‘rammed with
stolen Schieles’, according to sources. Switzerland, too, is vulnerable.” Id. See also
Riding, supra note 125 (Austria returning Munch work); Mollins, supra note 125
(Canada returning Vuillard painting); Vasagar, supra note 125 (British museum
returning multiple works to Czech family); Germany Returns Painting to Jewish Heir,
supra note 125; UK Gallery to Return Looted Art, supra note 125.
130
See American Association of Museums, http://www.aamus.org/aboutaam/
index.cfm (last visited Oct. 7, 2007); Association of Art Museum Directors,
http://www.aamd.org/about/ (last visited Oct. 7, 2007); International Council of
Museums, http://icom.museum (last visited Oct. 7, 2007).
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have not been universally thorough.131 According to
Ambassador Eizenstat, as recently as January 2007, “German
museums have performed and published disappointingly little
provenance research,” and France, Italy, Spain, Switzerland,
“and a host of other countries in Europe” have not undertaken
any provenance research into their public collections.132 The
international nature of the art market during the war and ever
since has caused much of the missing art to be scattered
throughout the world, and thus requires a global solution.133 As
stated by Owen Pell: “As a result of [the Nazi] looting program,
art was dispersed across Europe and/or was fed into a market
of dealers who bartered with the Nazis and then moved art out
of Nazi-controlled territory to neutral nations and beyond.”134
Finally, it also should be noted that smaller museums in
the United States and abroad, as well as quite large museums
in Australia, New Zealand, Asia, Latin America, the Middle
East, South Africa, and the former Soviet bloc, have not
committed in any significant way to Nazi-era provenance
research.135 Many would not have sufficient resources to
131
Randy Kennedy, Museums’ Research on Looting Seems to Lag, N.Y. TIMES,
July 25, 2006, at E1; Casagrande, supra note 127 (quoting Ute Haug, the only full-time
provenance researcher hired by a German museum as stating: “For eight years, these
difficulties have been known, for eight years there has been no money for provenance
research, and for eight years there have been restitutions which could have gone
better.”); Czechs Lift Deadline for Holocaust Claims, supra note 127 (“Last week, the
government agreed to extend funding for the Czech center that researches the
provenance of artworks and identifies Nazi-stolen art.”).
132
Lasserson, supra note 16.
133
See BAZYLER, supra note 125, at 210. One commentator noted:
I speak from experience when I tell you that restituting a painting is not a
simple task. Holocaust-era provenance research is time-consuming. Often
this is due to the paucity of published and accessible provenance information.
It is very labor-intensive. The information needed to resolve a case is usually
in more than one place. Pre-war collections have not survived in their
entirety—they have been dispersed and consequently items can surface
anywhere—presenting considerable logistical challenges and making it a
global issue.
Id. (quoting Monica Dugot).
134
Pell 1999, supra note 10, at 27 (citing FELICIANO, supra note 23 and Georg
von Segesser, Switzerland and the Art Trade 1939-1945 (address given at the 1997
Annual Meeting of the International Academy of Estate & Trust Law in Paris)); see
also Foreign Economic Administration: Enemy Branch: External Economic Staff,
Looted Art in Occupied Territories, Neutral Countries and Latin America: Preliminary
Report (May 5, 1945), available at http://docproj.loyola-edu/laiot.html.
135
PALMER, supra note 26, at 129-49; see also Kurt G. Siehr, Globalization
and National Culture: Recent Trends Toward a Liberal Exchange of Cultural Objects,
38 VAND. J. TRANSNAT’L L. 1067, 1077 (2005) (discussing a similar lack in the use of
legislative approaches). Additionally, it is well known that Russia retains trophy art
from World War II. See generally AKINSHA & KOZLOV, supra note 114.
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
181
undertake this research.136 Recent news reports have indicated
that valuable art in collections in Australia, Israel, and South
Africa, for example, had been looted and never restituted.137
E.
Factual Complexity of Looted Art Cases
There is another dimension to understanding the Nazilooted art problem that is difficult to broach. Often overlooked
in the debate over Nazi-looted art is that each case is very
different, with some being meritorious and others not. It is not
the case that every piece of art that went missing during
World War II was stolen by the Nazis from the hands of
survivors and never restituted. It is undisputed that the art
market continued to thrive throughout the war,138 and although
many sales were conducted in a criminal and unethical way,
not all of them were.139 Of course, some art was sold in forced
sales for low prices,140 and some was sold at the infamous “Jew
auctions” now universally recognized as illegal,141 but quite a
few sales were legitimate.142 In fact, some survivors were able to
sell art on the open market at fair prices, which enabled them
to obtain safe passage for themselves and their families to the
United States and other countries.143 The factual complexity of
136
See AAMD Report, supra note 76, Addendum (“The Commission recognized
that provenance research is difficult, expensive and time-consuming, often involving
access to records that are hard or impossible to obtain, and that most museums lack
the resources to accomplish this.”).
137
See, e.g., reports cited in supra note 125. In fact, a recent report about a
demand on the National Gallery of Victoria noted that if the “claim is successful,
the painting would be the first looted work in Australia to be returned to its
Jewish owners.” Rick Wallace, Claim on Gallery’s “Nazi-loot” Art, THE AUSTRALIAN,
Feb. 13, 2007, available at http://www.news.com.au/story/0,23599,21215397-2,00.html.
Additionally, it has recently been alleged that Finnish museums have a significant
amount of non-restituted art. See Researchers Believe Nazi-looted Art Could Be Found
in Finland, HELSINGIN SANOMAT, available in English at http://www.hs.fi/english/print/
1135225787506.
138
PETROPOULOS, supra note 24, at 5.
139
PALMER, supra note 26, at 60.
140
See, e.g., Douglas C. McGill, Met Painting Traced to Nazis, N.Y. TIMES,
Nov. 24, 1987, at C19.
141
See, e.g., PALMER, supra note 26, at 17.
142
Id. at 59-60; JONATHAN PETROPOULOS, THE FAUSTIAN BARGAIN: THE ART
WORLD IN NAZI GERMANY (2000).
143
PALMER, supra note 26, at 59-60; see also Zagorin, supra note 9 (discussing
opposition to compensating claimants for works sold in the 1930s at what seem to have
been fair prices in that market and noting that the art market in New York “continued
to function even as fighting raged in Europe”; also quoting Willi Korte, a consultant on
Holocaust losses to the Senate Banking Committee, as having stated: “The paintings
came to America because for more than 10 years during and after the war there was no
place else to sell them.”).
182
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a sixty-year-old claim should not be understated. One litigator
has described the complexity of investigating allegations that
particular paintings were looted as follows:
Art that was taken illegally during the War, for example in France,
may have found its way back to the original owner after the War and
may have been sold, unbeknownst to his own family, by that owner.
That work may be in commerce today. Owners of art that was taken
by the Germans and eventually sold to third parties may have been
compensated by those third parties; there are several examples of
that. In other words, someone who had bought looted art found out
subsequently that it was looted and made amends with either the
owner or the owner’s heirs. So if we show a taking, we do not
necessarily show an entitlement; it is much more complex than
that.144
The movement in the mid- to late 1990s for
compensation of individual victims of the Nazi regime was
groundbreaking and commendable. None of the funds created,
however, deals with the issue of Nazi-looted art. Just as the
post-war gaps in restitution programs justified the creation of
national funds, the gaps in restitution of artwork justify this
Article’s call for the creation of a Nazi-Looted Art Tribunal. The
Tribunal would achieve some measure of justice for those
families that were targeted by the Nazis’ attempt to rid Europe
of Jewish culture. Similarly, the Tribunal would alleviate the
uncertainty in the art market that looms because of potential
liability, particularly in the United States.145 Finally, creating
the Nazi-Looted Art Tribunal would fulfill the commitments
made at the Washington and Vilnius conferences. Now that the
need for the Tribunal has been demonstrated, this Article will
turn to how to structure the Tribunal.
II.
STRUCTURING THE TRIBUNAL
Any dispute resolution tribunal that is created must be
structured to promptly and fairly resolve most existing Nazilooted art claims and reconcile the differences between common
law and civil law traditions concerning property ownership.
This Section provides new ideas for how to achieve these goals.
Moreover, to engender participation by art market
stakeholders, there must be a definite point in the future when
144
Richard K. Bernstein, Art Wars: International Art Disputes: Edited
Presentation, 31 N.Y.U. J. INT’L L. & POL. 127, 130 (1998).
145
See, e.g., Lasserson, supra note 16 (reporting foreign attorneys stating that
the United States is the best place to file Nazi-looted art cases).
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the uncertainty in the market created by gaps in provenance
from the Nazi era will be definitively resolved.146
Simply creating the Tribunal would be a step toward
that goal, but more should be done. For example, any tribunal
created should have a claims resolution mechanism, a
prospective title clearing mechanism, and a theft registry to
finally reach closure on the problem.147 The case for creating a
title clearinghouse and theft registry has been made quite
effectively by other scholars since the mid-1990s, and thus
extensive treatment is beyond the scope of this Article. This
Article echoes the sentiment of those scholars that a
clearinghouse and registry mechanism should be created, and
calls for its establishment in conjunction with the Nazi-Looted
Art Tribunal.
A.
Prompt and Fair Resolution of Most Remaining Claims
Few would disagree that prompt and fair resolution of
disputes is a laudable goal, but the issue of how to achieve that
goal would certainly provoke disagreement. In any event, any
proposal to deal with the problem of Nazi-looted art must
“provide a substantial degree of certainty in result and
simplicity in application, without unduly sacrificing fairness.”148
Mass claims treatment is the only way to accomplish this
goal.149
146
See, e.g., Phelan, supra note 3, at 660.
See Ashton Hawkins et al., A Tale of Two Innocents: Creating an Equitable
Balance Between the Rights of Former Owners and Good Faith Purchasers of Stolen
Art, 64 FORDHAM L. REV. 49, 89-90 (1995); Lerner, supra note 7, at 35; Pell 2004, supra
note 11, at 315-16; Pell 1999, supra note 10; Steven A. Bibas, Note, The Case Against
Statutes of Limitations for Stolen Art, 103 YALE L.J. 2437, 2460-65 (1994).
148
Hawkins et al., supra note 147, at 89-90.
149
As stated by one scholar providing a comprehensive analysis of mass
claims:
147
In a mass claims situation, all claims arise out of one basic set of facts, such
as a war, a revolution or another event causing widespread harm. This
implies that “practically all of the claims arise at around the same time and
are very similar in terms of the legal and factual issues they raise.”
This does not mean that all questions of law or fact need to be common. In
many cases, there will be a pattern of harmful conduct, consisting of separate
though related incidents, rather than one particular harmful event. Such a
pattern might have affected various claimants in different ways, leaving
considerable scope for individual issues to arise in mass claims. This is
illustrated by the claims dealt with by the CRPC [Commission for Real
Property Claims of Displaced Persons and Refugees in Bosnia and
Herzegovina] in Bosnia and the HPCC [Housing and Property Claims
Commission] in Kosovo. The losses of property were all based on separate
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As stated by Lawrence Kaye, a well-known litigator in
the field, “One principle to be embraced should be that
restitution and repatriation must be available to all claimants,
not only to those who can afford private litigation.”150 It would
be impossible, however, to resolve all remaining individual
claims to “works of art” broadly defined; there simply are too
many claims and too many uncertainties. Nonetheless, the
attempt to rectify the taking of property must be made on a
broad scale.151 One way to achieve the correct balance of the
desire to do widespread justice, on the one hand, and
practicality in its administration, on the other, is to set a
minimum jurisdictional threshold for the Tribunal. In 1999,
Pell suggested a minimum of $250,000 such that a commission
would deal exclusively with very high-end artwork.152 This
Article proposes that a $100,000 present-day fair market value
(“FMV”) minimum would bring most potential art disputes of
which families are aware under the Tribunal’s jurisdiction
without overwhelming it. In addition, claims at that value
would not likely be asserted in a judicial forum because of the
prohibitive cost of bringing such suits with a sixty-year
facts and attributable to different individuals. There was, however, a general
pattern of taking of property, which means that the claims all raised very
similar legal issues.
Hans Das, The Concept of Mass Claims and the Specificity of Mass Claims Resolution,
in REDRESSING INJUSTICES THROUGH MASS CLAIMS PROCESSES, supra note 60, at 1,
7-8. For additional sources providing lessons from existing mass claims tribunals,
see generally INTERNATIONAL MASS CLAIMS PROCESSES: LEGAL AND PRACTICAL
PERSPECTIVES (Howard M. Holtzmann & Edda Kristjánsdórttir eds., 2007);
REDRESSING INJUSTICES THROUGH MASS CLAIMS PROCESSES, supra note 60;
INSTITUTIONAL AND PROCEDURAL ASPECTS OF MASS CLAIMS SETTLEMENT SYSTEMS (The
Int’l Bureau of Permanent Court of Arbitration ed., 2000).
150
Kaye, supra note 88, at 667.
151
Id. It must be remembered that the Nazis’ widespread theft of property
constituted a war crime:
The strongest international condemnation of the destruction and plunder
of cultural property during wartime appeared in the Charter of the
International Military Tribunal at Nuremberg in 1945. Article VI(b) states
that the “plunder of public or private property . . . not justified by military
necessity” is a war crime. Several years after the war, the characterization of
the plunder of public or private property as a war crime was confirmed in the
1949 Geneva Convention. Article 147 designates the wanton destruction and
appropriation of property during war as a “grave breach” of the Convention.
In addition, Protocols I and II to the Convention, adopted in 1977, specifically
make it a “grave breach” of the Convention to destroy clearly recognized
historic monuments, works of art, and places of worship.
Id. at 664-65; see also, e.g., Pollock, supra note 40, at 203-04 (outlining international
law dating back to 1907 violated by the looting).
152
Pell 1999, supra note 10, at 60.
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RESOLVING NAZI-LOOTED ART DISPUTES
185
history.153 Moreover, an artwork trading today at $100,000
would justify a fair degree of due diligence by the buyer.154
Because few works by 1945 were valued at $100,000, the
increase in value would allow room for compromise restitution
awards to accommodate both the theft victim’s entitlement to
justice and the bona fide purchaser’s investment-backed
expectations.155
Some might argue that an attempt to resolve disputes
as to so many works of art could prejudice claims of survivors
and their heirs because they may not receive notice of the
existence of their claims until the Tribunal’s limitations period
expires.156 The same type of argument has been raised in
conjunction with statutes of limitations as applied to Nazilooted art in general.157 Worldwide notice, however, would not
be as difficult for the Nazi-Looted Art Tribunal as it was for the
Swiss bank settlement, German Foundation, or other recently
created tribunals to compensate Holocaust victims and their
heirs. This is because the Swiss bank litigation already
engaged in a “massive, worldwide notice program designed to
inform Holocaust victims of the contours of the settlement and
of their right to opt out, followed by a fairness hearing under
[Federal] Rule [of Civil Procedure] 23(e).”158 Mailings were sent
to more than one million persons, and questionnaires were
returned by approximately 580,000 persons in the Swiss bank
litigation alone.159 A massive database of potential claimants,
that is, Holocaust survivors and heirs, needed to be created to
affect such notice.160 Similarly, potential claimants of the
German, Austrian, French, and ICHEIC funds also were
notified.161 Notice about the funds was worldwide, with massive
153
See, e.g., supra note 7. Another consideration is whether to allow a
claimant to petition a national government to pursue lower value claims with
particularly strong factual evidence. Alternatively, a screening mechanism in the
Tribunal could serve the same function. See generally THE IRAN-UNITED STATES
CLAIMS TRIBUNAL AND THE PROCESS OF INTERNATIONAL CLAIMS RESOLUTION (David D.
Caron & John R. Crook eds., 2000) [hereinafter IRAN-U.S. CLAIMS TRIBUNAL].
154
See generally Phelan, supra note 3.
155
See infra Part II.C.
156
See, e.g., Cuba, supra note 5 (arguing for suspension of statute of
limitations in Nazi-looted art cases).
157
Id.
158
See Neuborne 2002, supra note 34, at 809.
159
Id. at 810.
160
Morris Ratner of Lieff Cabraser Heimann & Bernstein, LLP supervised the
worldwide notice program. Id. at 810 n.44.
161
See generally Bazyler & Fitzgerald, supra note 12; HOLOCAUST
RESTITUTION, supra note 35.
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mailings, newspaper and radio advertisements in many
countries in varying languages, posting of useful information
on the web, and establishing toll-free telephone numbers.162
Limited personal contact also was made available in offices of a
few Jewish organizations.163 Simply based on the numbers of
claims received by the tribunals,164 it can hardly be doubted
that the notice was effective. Presumably, the Nazi-Looted Art
Tribunal need only gain access to the previously generated
databases, engage in an admittedly very large mailing, run
newspaper and radio announcements, establish a toll-free
number, create a web site, and work with a few Jewish
organizations to achieve the same widespread notice. After an
initial burst of advertising, the announcements should be run
once per year for the duration of the Tribunal’s existence.
Effective notice is essential because the Tribunal should
allow claims to be registered by citizens of signatory nations for
the next five years—more than three generations after the war.
The registration process should be mandatory regardless of
whether the work of art has yet been located. Such massive
registration will develop the critical mass of information
necessary to more efficiently match claims with tainted
artworks.165 Registering the claim should toll the applicable
limitations periods, as discussed below.166
The treaty establishing the Tribunal should provide
that claims under its jurisdiction will be excluded from the
jurisdiction of domestic courts or commissions in the signatory
nations.167 This policy mirrors that of the Iran-United States
Claims Tribunal foundational documents168 and is more
162
E.g., French Agreement, supra note 57, exhibit 1.
See, e.g., Weiss, supra note 37, at 106.
164
See Neuborne 2006, supra note 40, at 70. Additionally, various national
commissions, such as the Drai Commission, have undertaken extensive notice
campaigns. See Freedman & Weisberg, supra note 47, at 133, 138-40.
165
The matching process would be greatly expanded via the title
clearinghouse, which would generate registration by possessors of art, and thus data
collection. See infra Part II.F.
166
See infra Part II.C.
167
Ralph E. Lerner’s proposal contemplated voluntary submission to a
commission: “Filing a claim with the restitution commission would bar any lawsuit
against any museum for the return of artwork.” Lerner, supra note 7, at 39.
168
See THE HAGUE: LEGAL CAPITAL OF THE WORLD 245-46 (Peter J. Van
Krieken & David McKay eds., 2005) [hereinafter THE HAGUE]. Establishing the
Tribunal as the sole forum for resolution of Nazi-looted art claims would not constitute
a taking by the U.S. government. Cf. RAHMATULLAH KHAN, THE IRAN-UNITED STATES
CLAIMS TRIBUNAL, 7-23 (1990) (extensively discussing U.S. lawsuits challenging the
163
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restrictive than the approaches utilized by any of the newly
created Holocaust funds. For a survivor or heir to collect from
any of the new funds, he or she must make a voluntary choice
to dismiss any pending litigation and agree not to bring
additional litigation.169 In contrast, jurisdiction of the Tribunal
should be compulsory for all plaintiffs and defendants,
regardless of the nationality of either. Although compulsory
jurisdiction no doubt would be highly controversial,170 it would
offer the most complete, cost effective, and fair resolution for
the following reasons.171
First, art claims are different from slave and forced
labor claims in that the claimants of art may not know the
correct entity to sue until the art comes on the market, which
tends not to happen regularly.172 Moreover, lawsuits over works
of art tend to be very fact specific. Thus, unlike claimants of
dormant bank accounts or unpaid insurance policies from the
Nazi era, a class action settlement would be inappropriate for
the Nazi-looted art problem. The class certification criteria of
Federal Rule of Civil Procedure 23(a) could not be satisfied in
light of the fact-sensitive nature of each claim.173
Furthermore, the amount of a class action settlement,
once finalized, is fixed save for rare conditions.174 The
settlement amount proved to be significantly mistaken in the
Swiss bank settlement.175 The Nazi-Looted Art Tribunal could
avoid this problem by establishing a sizeable reserve payable
by the signatory nations, but not establishing a fixed
“settlement.”176 Rather, the Tribunal’s foundational documents
establishment of the Iran-United States Claims Tribunal on takings grounds, all of
which failed).
169
See supra note 54 and accompanying text.
170
See, e.g., Jacob Katz Cogan, Competition and Control in International
Adjudication, 48 VA. J. INT’L L. (forthcoming 2008) (discussing negative effects of
limiting the number of tribunals that could resolve a dispute).
171
This approach also would avoid the “dual national” problem that plagued
the Iran-United States Claims Tribunal. See, e.g., KHAN, supra note 168, at 120-53; see
also WAYNE MAPP, THE IRAN-UNITED STATES CLAIMS TRIBUNAL, 61-81 (1983); JOHN A.
WESTBERG, INTERNATIONAL TRANSACTIONS AND CLAIMS INVOLVING GOVERNMENT
PARTIES: CASE LAW OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL 7 (1991); THE IRANUNITED STATES CLAIMS TRIBUNAL: 1981-1983, 59-81 (Richard B. Lillich ed., 1984).
172
See Collins, supra note 4, at 119.
173
See Bazyler & Fitzgerald, supra note 12, at 711 (“Since each [art] lawsuit
involves a specific work of art, all were individual lawsuits, rather than class action
litigation.”).
174
FED. R. CIV. P. 23(e) & 60(b).
175
See supra notes 40-42 and accompanying text.
176
This approach also would avoid underfunding problems like those
experienced by the Iran-United States Claims Tribunal. See generally IRAN-U.S.
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should establish that its judgments would be treated by all
signatory nations as enforceable arbitral awards under the
1958 United Nations Convention for the Recognition and
Enforcement of Foreign Arbitral Awards (New York
Convention).177 This is the same approach of the Iran-United
States Claims Tribunal.178 Thus, individual defendants would
shoulder the impact of the final judgment when warranted, but
a tribunal would allow both the claimant and the defendant to
dramatically reduce litigation costs and risk, particularly with
the allowance of compromise cash awards, commissions, and
tribunal cost shifting.179 The risk of an “all-or-nothing” verdict,
the only option available in a court of law,180 would be greatly
reduced because it should be awarded in only the strongest of
cases and where the possessor does not appear to qualify for
bona fide purchaser status.181
Finally, unlike the documents at issue in the bank and
insurance cases, it is fairly certain that many of the artworks
will resurface in future years—often in the hands of innocent
bona fide purchasers.182 Thus, to avoid perpetual disputes and
uncertainty in the market, repose for the art community must
be achieved—albeit in a manner that is fair to the theft
victims. The Nazi-Looted Art Tribunal with a title
clearinghouse would achieve that goal.
B.
Independence from National Oversight
An identity distinct from any national body is essential
for the Nazi-Looted Art Tribunal to maintain neutrality in
deciding disputes against institutions or persons in any
CLAIMS TRIBUNAL, supra note 153, at 60 (“The gross inadequacy of the $1 billion
Security Fund was of universal concern, which was not much relieved by Iran’s paper
obligation to replenish it as needed.” (citation omitted)); accord THE IRAN-UNITED
STATES CLAIMS TRIBUNAL: ITS CONTRIBUTION TO THE LAW OF STATE RESPONSIBILITY
15-16, § 1.3.3 (Richard B. Lillich & Daniel Barstow Magraw eds., 1998) [hereinafter
Lillich & Barstow Magraw].
177
U.N. Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York June 10, 1958), 21 U.S.T. 2517, 330 U.N.T.S. 38.
178
THE HAGUE, supra note 168, at 264 (“[T]he Iran-United States Claims
Tribunal is the only international multiclaims tribunal whose awards are covered by
the New York Convention . . . and thus potentially subject to enforcement by national
courts.” (citations omitted)).
179
See infra Part II.C.
180
Pollock, supra note 40, at 231.
181
See infra Part II.C.
182
See Petrovich, supra note 9, at 1124.
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RESOLVING NAZI-LOOTED ART DISPUTES
189
particular state.183 One reason is that disputes concerning
artwork, as opposed to those related to other types of property,
tend to generate more emotion on both sides of the dispute.184
This has been particularly true in relation to Nazi-looted art:
“Indeed, art and cultural objects can be viewed as a tangible
connection to those who perished in the Holocaust and to the
suffering they endured.”185 The connection would be
particularly strong with regard to portraits of family members
who perished. There are a number of tales of children having
promised their parents that they would do all they could to
recover the family’s property, particularly art.186 Perhaps the
sentiment was best expressed by Neal M. Sher, President of
the International Association of Jewish Lawyers and Jurists
American Section, in speaking about the “quest” for restitution
and money damages for Nazi-era property losses: “The quest
183
See Pell 1999, supra note 10, at 59 (stating that any commission should be
a “non-governmental ‘person’ at international law (i.e., by treaty and treatment the
[tribunal] should have appropriate and useful immunities under international law).”).
184
Lionel Trilling, one of the “New York Intellectuals,” reportedly once
remarked that “a work of art is both a source of power and an object of knowledge.”
Paul M. Bator, An Essay on the International Trade in Art, 34 STAN. L. REV. 275, 295
(1982). “Legal problems are further magnified by the passionate feelings aroused by
attachment to a work of art, as well as by overwhelming revulsion at the horror of the
Holocaust.” Lerner, supra note 7, at 15.
185
Pell 1999, supra note 10, at 45; see also Zagorin, supra note 9, at 87
(quoting Simon Goodman who is suing for recovery of the Degas monolithe, Landscape
with Smokestacks: “My family was murdered, their possessions destroyed or stolen . . . .
These works are all that is left of our heritage, so we want the painting back.”).
186
See, e.g., Monica Dugot, The Holocaust Claims Processing Office: New York
State’s Approach to Resolving Holocaust-Era Art Claims, in HOLOCAUST RESTITUTION,
supra note 35, at 271, 271. Dugot quotes Jane Lerner:
Ismar Littmann was my grandfather. I never got to know him. Ismar
Littmann committed suicide in 1934, when the world as he knew it was
crashing down around him. Within five years of his death, his family home
was abandoned, his children fled Germany for different continents, his wife
escaped to England, and his life’s treasure, his art collection, had
disappeared: lost, looted, confiscated, stolen. . . . What a tragedy that his
collection was dispersed, and that his reputation as a great collector was
never recognized or acknowledged. I am therefore so grateful . . . to the
museums that have willingly come forward in Emden, Cologne and Berlin, to
return pieces from our family collection and to connect Ismar Littmann’s
name to the ownership. . . . We are only one family looking for our heritage;
there are many others. And there’s still so much left to be done.
Id.;
see
also
Glittering
Prize,
TELEGRAPH.CO.UK,
Oct.
7,
2006,
http://www.telegraph.co.uk/arts/main.jhtml?xml=/arts/2006/07/10/baklimt.xml
(reporting that Ferdinand Bloch-Bauer wrote after the war to his friend, artist Oskar
Kokoschka, that he hoped “with all [of his] heart to be able to recover the portraits of
my darling Adele” and left his claims to the paintings to his heirs); Dugot, supra, at
271.
190
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for reparations is not only a matter of justice, but also a matter
of morality.”187 He continued:
As Holocaust issues are brought to the forefront, people must always
remember there will never be perfect justice. Many Nazi war
criminals will not stand accountable for their insidious crimes.
Similarly, many stolen Jewish assets will never be reclaimed.
Nevertheless, these criminals and stolen assets must be pursued to
the ends of the earth.188
Emotion has not only been felt on the part of victims’
families seeking full restitution of art. For example, one
claimant who reached a settlement whereby a looted painting
would remain in the British Museum stated:
This is in a way our thanks to the British people who enabled my
parents; my then 2-year-old sister; and a couple of other members of
our family to find refuge from the Nazis. If not for the British people,
my younger sister and I wouldn’t be here today, let alone have found
the drawings. So in a way, the circle is closed.189
The proceedings in Austria prior to the final arbitration
in the Altmann Klimt dispute drive the point home. It seems
that emotion and politics infiltrated the Austrian process of
deciding whether the Klimts should have been restituted.190 A
bit of history is necessary to understand what happened. The
Austrian government established programs after the war in an
effort to return aryanized property to its rightful owners
pursuant to the Austrian State Treaty of 1955.191 Under Article
26 of the Treaty,
Austria was obligated to restore the legal rights and interests of the
true owners of such property where possible . . . [and] if property
remained unclaimed or heirless six months after the Treaty came
into force, Austria “agreed to take under its control all [such]
property” and “transfer such property to the appropriate agencies or
187
Neal M. Sher et al., The Search for Nazi Assets: A Historical Perspective, 20
WHITTIER L. REV. 7, 9 (1998).
188
Id. at 10.
189
S.F., British Museum Exhibits 5 Drawings Once Looted from Feldmann
Collection, 9 IFAR J. 13, 13 (2006).
190
“It is widely believed that the Austrian government is reluctant to [lose]
the Bloch-Bauer paintings as they are so important a part of the Austrian State
collection.” Burris & Schoenberg, LLP, Nazi Loot Claim Goes to Court in US,
http://www.bslaw.net/news/010701.html (Jan. 7, 2001); see also E. Randol Schoenberg,
The Recovery from Austria of Five Paintings by Gustav Klimt, 9 IFAR J. 28, 36-37
(2006) (providing background on the arbitration).
191
See United States v. Portrait of Wally, No. 99 Civ. 9940, 2002 WL 553532,
at *7 (S.D.N.Y. Apr. 12, 2002) (discussing Austrian claims mechanisms).
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RESOLVING NAZI-LOOTED ART DISPUTES
191
organizations to be used for relief and rehabilitation of victims of
persecution.192
As a matter of context, it is important to realize that “in the
eighteen months preceding the invasion of Poland, the
Germans allowed more than eighty thousand Jews to leave
Austria, but only by buying their way out through the
surrender of all personal possessions to the Office of
Emigration.”193 The post-war statutory framework for claiming
such property contemplated that survivors or their heirs would
file claims with statutorily created Restitution Commissions
that adjudicated claims.194 In 1998, a series of articles by
journalist Hubertus Czernin revealed post-war impropriety on
the part of the Bundesdenkmalamt (“BDA”), the Austrian
agency that collected property for processing by the Restitution
Commissions.195 Under the Austrian Ban on Export of Cultural
Assets Code, the BDA would consult with museums to decide
whether to exercise its shocking power to “impede the return of
artwork to successful claimants residing abroad when it found
that the ‘public interest’ required the preservation of such
cultural assets in Austria.”196 “Often the BDA would grant
export approval for certain works of art on the condition that
the owner would sell at a low price or make a gift of other
works of art to Austrian museums.”197 It should also be noted
that Austria at the time still viewed itself as the first nation to
have been invaded by Nazi Germany, a view that was endorsed
by the Allies.198
On December 4, 1998, the Austrian Parliament enacted
legislation to provide for “restitution notwithstanding such
legal obstacles as the statute of limitations.”199 “Elisabeth
192
Id. (quoting the Austrian State Treaty art. 26, May 15, 1955, 6 U.S.T.
2369, 217 U.N.T.S. 223).
193
Pell 1999, supra note 10, at 32 (citing Nicholas, supra note 19, at 39).
194
Portrait of Wally, 2002 WL 553532, at *2. For a description of limitations
in the post-war claims process in Austria, see Hannah Lessing et al., The Austrian
General Settlement Fund: An Overview, in REDRESSING INJUSTICES THROUGH MASS
CLAIMS PROCESSES, supra note 60, at 95, 98-99.
195
See Portrait of Wally, 2002 WL 553532, at *1 (describing the BDA);
Lowenthal, supra note 28, at 135.
196
Portrait of Wally, 2002 WL 553532, at *2 n.2 (citing Friedrich Welz’s
declaration).
197
Id.
198
See, e.g., Lessing & Azizi, supra note 47, at 226.
199
PALMER, supra note 26, at 178–79; see also supra note 104;
Landesverfassungsgesetz vom 14. März 2000 über die Rückgabe oder Verwertung von
Kunstgegenständen und Kulturgütern, die während der nationalsozialistischen
Gewaltherrschaft ihren Eigentümern entzogen worden sind [Styrian Provincial Law of
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Gehrer, Austria’s Minister of Culture, . . . set up a museum
panel to identify works that [should] be returned.”200 Based
upon the number of recent valid claims asserted against
Austrian institutions, it seems that post-war impropriety was
widespread.201
The Klimts dispute highlights the problem and its
emotional aspects. In 1999, Ms. Maria Altmann, the heir of a
Czech sugar magnate, Ferdinand Bloch, sought five Gustav
Klimt paintings painted for Ferdinand’s wife, Adele BlochBauer.202 Adele died in 1925 of natural causes, and her will,
drafted long before the Nazis came to Austria, “kindly”
requested that Ferdinand donate the paintings to the Austrian
National Gallery upon his death.203 When the Nazis annexed
Austria in the Anschluss, Ferdinand was forced to flee to
Switzerland without his possessions.204 His possessions were
aryanized by a Nazi official, and some of the paintings came to
be housed in the Austrian Gallery Belvedere (“Belvedere”).205
The Belvedere failed to return the paintings after the war,
citing Adele’s will.206 Moreover, in 1948, an agent of the
Austrian Federal Monument Agency informed the family’s
lawyer that “it would grant export permits on some of the
family’s other recovered artworks in exchange for a ‘donation’
of the Klimt paintings.”207
14 March 2000 on the Return or Taking to Account of Works or Art or Cultural Assets
Confiscated from their Owners During the Nazi Regime] Landesgesetzblatt [LGBl] No.
46/2000 (Austria), available in English at http://www.lootedart.com/MFEU4498720;
Beschluss des Gemeinderates der Bundeshauptstadt Wien vom 29. April 1999 über die
Rückgabe von Kunst und Kulturgegenständen aus den Museen, Bibliotheken,
Archiven, Sammlungen und sonstigen Beständen der Stadt Wien [Vienna City Council
Resolution on the Return of Artistic and Cultural Property from the Museums,
Libraries, Archives, Collections and other Holdings of the City of Vienna], available in
English at http://lootedart.com/MFEU4487209. Additionally, the Austrian government
enacted legislation in 1995, giving the Austrian Jewish community ownership of
“heirless” art looted by Nazis, which had been simply sitting in storage since the war.
Kelly Ann Falconer, Note, When Honor Will Not Suffice: The Need for a Legally
Binding International Agreement Regarding Ownership of Nazi-Looted Art, 21 U. PA. J.
INT’L ECON. L. 383, 416 (2000).
200
Lowenthal, supra note 28, at 135.
201
See supra note 61 and accompanying text (discussing the Rothschild and
Altmann claims); Schoenberg, supra note 190, at 41; S.F., Austria’s Belvedere Loses
Another Painting to Claimant, 9 IFAR J. 10, 10 (2006).
202
Altmann v. Republic of Austria, 317 F.3d 954, 958 (9th Cir. 2002), aff’d on
jurisdictional grounds, Republic of Austria v. Altmann, 541 U.S. 677 (2004).
203
Id. at 959.
204
Id.
205
Id. at 959-61 (providing a detailed account of the paintings’ fates).
206
Id. at 960.
207
Id.
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
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The case was dormant until the aftermath of Portrait of
Wally and Czernin’s exposé of Austrian post-war practices.
Nonetheless, the Belvedere decided not to return the
paintings.208 Nor was restitution recommended by the new
Austrian advisory committee set up pursuant to Austria’s
Federal Act on the Return of Cultural Objects from Austrian
Federal Museums and Collections.209 The committee’s purpose
is to advise the Minister for Education and Culture as to which
artworks in public collections with problematic provenance
should be returned.210 The committee seems to have completely
precluded participation by Ms. Altmann or her attorney to the
point that her evidence was ignored.211 Emotional attachment to
the world-renowned Klimts, often referred to by Austrians as
208
Id. at 961.
Rückgabe
von
Kunstgegenständen
aus
den
Österreichischen
Bundesmuseen [Federal Act on the Return of Cultural Objects from Austrian
Federal Museums and Collections] Bundesgesetzblatt Teil I [BGB1 I] No. 181/1998,
§ 3 (Austria).
210
Id.
211
See Schoenberg, supra note 190, at 36 (“I had sent the commission several
legal opinions that I had obtained from an Austrian lawyer, Dr. Andreas Lintl, about
Adele Bloch-Bauer’s will, which, I figured, would be the real issue. I later found out
that the head of the commission did not share the opinions with all of the other
members. I called one of the lawyers on the commission, Dr. Manfred Kremser, to offer
to come to Vienna and meet with him to discuss whatever issues they may have. I was
told that they decided not to have any external discussions. I said that sounded a little
unfair; I was not just somebody, I was the lawyer for Maria Altmann and shouldn’t she
have a right to participate? He said, ‘No, we are doing this all internally.’ He added:
‘Mr. Schoenberg, you can come and meet with me at any time, but we cannot talk about
the case.’”).
An Austrian art restitution board in November 2003 recommended the
return to Ferdinand’s heirs of another Klimt, Portrait of a Woman, from the Austrian
Gallery. Ein Weiterer Klimt Wird Restituiert [Klimt Painting to Be Restituted to
Heirs of Bernhard Altmann], DER STANDARD, Nov. 21, 2003, available at
http://www.bslaw.net/news/031121.html. Other families have had success with the
board. See Alexander Kaplan, Note, The Need for Statutory Protection from Seizure for
Art Exhibitions: The Egon Schiele Seizures and the Implications for Major Museum
Exhibitions, 7 J.L. & POL’Y 691, 740 n.227 (1999) (providing an outline of the
commission and noting that the Austrian “government hoped to return 400-500 items
whose provenance had been fully investigated by the end of 1998 to some 20 families”)
(citing Judith Dobrzynski, Austria to Return Some Art Seized by Nazis, But Disputes
Remain, N.Y. TIMES, Nov. 23, 1998, at A6); S.F., supra note 201, at 10-11 (describing
the Mahler family claim to Munch’s Summer Night on the Beach). Ms. Altmann’s
claims to another Klimt, Portrait of Amalie Zuckerkandl, were ruled against in
arbitration, and the paintings were awarded to the Belvedere instead because of
evidentiary issues. See Schoenberg, supra note 190, at 43. Another family, the
Zuckerkandls, also has claimed the painting. Id. Both families filed claims to set aside
the arbitration ruling. The lower court denied the claims and the decision was affirmed
by an intermediate appellate court in November 2007. One family already has
expressed intent to appeal to the Austrian Supreme Court. E-mail from E. Randol
Schoenberg, Partner, Burris & Schoenberg, L.A., Cal., to Jennifer Kreder, Associate
Professor of Law, Salmon P. Chase College of Law (Nov. 7, 2007) (on file with author).
209
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their Mona Lisa, seems to have influenced the Austrian
position.212
Ms. Altmann first attempted to sue the gallery in 1999
in Austria, where the paintings were located. The filing fee,
however, based on the amount in controversy, was initially $1.6
million but was later reduced to $135,000.213 Thus, Ms.
Altmann, a U.S. citizen, filed suit in California, where she
resides.214 The case, Atlmann v. Republic of Austria, wound its
way through the U.S. District Court for the Central District of
California215 and the Ninth Circuit Court of Appeals216 on
jurisdictional issues. The U.S. Supreme Court granted
certiorari to decide whether the Foreign Sovereign Immunities
Act could be applied retroactively to allow suit against the
Austrian Gallery for acts committed before the Act was adopted
by Congress.217 The U.S. Supreme Court ruled that the suit was
not barred in U.S. courts by the Foreign Sovereign Immunities
Act.218
After the Supreme Court ruling, the parties in Altmann
agreed to binding arbitration in Austria.219 Typical
appointments procedures were used with each side appointing
one arbitrator and those two arbitrators selecting a third.220
Without jurisdictional and procedural issues in the case, the
arbitration centered on the merits—Adele Bloch-Bauer’s will.221
The arbitration was conducted in September 2005, and in midJanuary 2006, the arbitrators issued a unanimous opinion in
favor of Ms. Altmann.222 Ms. Altmann desired that the
paintings would remain in Vienna, but the Republic of Austria
212
See Stevenson Swanson, It’s Our Mona Lisa, CHI. TRIB., July 14, 2006, at 1;
Josh Kun, The Art of Memory, L.A. MAGAZINE, Oct. 2006, at 1 (describing emotional
and political attachment to the works in Austria); see also Glittering Prize, supra note
186 (describing Ms. Altmann’s shock at learning of the restitution committee’s denial of
the claim and Ms. Gehrer’s public denial of the looting when Ms. Gehrer had admitted
the previous year that Adele’s will was not binding).
213
Altmann, 317 F.3d at 961.
214
Id.
215
Altmann v. Republic of Austria, 142 F. Supp. 2d 1187 (C.D. Cal. 2001).
216
Altmann, 317 F.3d at 954.
217
Republic of Austria v. Altmann, 541 U.S. 677, 677 (2004).
218
Id.
219
Howard Reich, Austrian Panel, Not U.S. Courts, Will Decide Who Owns
Looted Art, CHI. TRIB., May 18, 2005, available at http://www.adele.at.
220
See Schoenberg, supra note 190, at 40. See also, e.g., UNCITRAL Rules
§ II, art. 7, in IRAN-U.S. CLAIMS TRIBUNAL, supra note 153, at 442-43.
221
Schoenberg, supra note 190, at 39.
222
Id. The full arbitral opinion is available at http://www.adele.at (last visited
Aug. 25, 2007).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
195
did not raise the funds to make a reasonable offer.223 Thus, the
paintings were shipped to the United States and auctioned.224
The most famous, Adele Bloch-Bauer I, was purchased by
Ronald Lauder of the cosmetics family for the newly created
Neue Gallerie museum in New York.225 The remaining works
were sold to as-of-yet anonymous telephone bidders.226 In all,
the paintings sold for approximately $327 million.227
Shockingly, just before completing the sale, Ms.
Altmann was criticized in the New York Times for selling the
artwork, which rightfully belonged to her, instead of donating
it to a museum.228 The Rothschilds’ auction of $90 million of
artwork restituted by Austria in 1999 met with similar
criticism.229 The Goudstikker family also has begun to auction a
large art collection restituted to it by the Dutch.230 As was wellstated by E. Randol Schoenberg, Ms. Altmann’s attorney:
Rich Austrians hawk their property all the time, but Jews can’t? . . . .
What do you do when you’ve inherited ten suits of armor and a
collection of old Roman coins and you’re living in a small apartment?
One of the possibilities is that you call Christie’s and have the
biggest single collection sale that there’s been, and then we put the
money in more valuable things than suits of armor. It’s always a
matter of putting yourself in the person’s shoes. You can’t
understand the Rothschild’s [sic] position if you’re an Austrian who
thinks they’re rich, greedy Jews.231
223
Schoenberg, supra note 190, at 40; Christopher Reynolds, Austria Bows
Out of Klimts’ Future, L.A. TIMES, Apr. 9, 2006, at 33.
224
Christopher Michaud, NY Fall Auctions Feature Prizes and Altruism,
REUTERS, Nov. 3, 2006.
225
See Carol Vogel, $491 Million Sale Shatters Art Auction Record, N.Y.
TIMES, Nov. 9, 2006, at B1.
226
Id.
227
Schumann, supra note 123.
228
Michael Kimmelman, Critics Notebook; Klimts Go to Market; Museums
Hold Their Breath, N.Y. TIMES, Sept. 19, 2006, at E1. Just as the paintings’ fame and
beauty were reasons for Austrian resistance to a valid reading of Adele’s will, the fame
and beauty of the paintings were an excuse for the criticism of Ms. Altmann.
229
Kun, supra note 212, at 8 (“A similar moment occurred in 1999 when the
new restitution law returned property to the heirs of the Rothschild fortune. When
they turned around and put it all up for auction, the Austrians went wild with
criticism.”).
230
Carol Vogel, Recovered Artwork Heading to Auction, N.Y. TIMES, Feb. 22,
2007, at E1.
231
Kun,
supra
note
212,
at
8;
see
also
CultureGrrl,
http://www.artsjournal.com/culturegrrl/2006/09/cashing_in_on_restituted_nazi.html
(Sept. 28, 2006) (“[R]ushing to auction rather than cherishing objects that were once
important to lost loved ones reinforces the pernicious stereotype that we Jews are
always up against—that we are enamored of money.”); Casagrande, supra note 127
(quoting German Museums Association President, Michael Eissenhauer, as referring to
196
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One objection that often is raised against art restitution
from a museum is that it necessarily means that the public will
not have the opportunity to enjoy the work.232 It is often stated
that the “restitution movement” will lead to “bare walls.”233 This
objection, however, seems to be based more on emotion than
reality. First, very few private collectors can purchase
paintings of extremely high values.234 Second, most prized
collections eventually will be found in public collections—either
by donation, loan, or sale.235 Finally, when it comes to art looted
by the Nazis, it can hardly be fairly said that the public has a
right to the enjoyment of the work.236 If anything, the public
has been unjustly enriched by being able to enjoy the art for
sixty years without compensating the true owner.237
the restitution movement as “big business”: “It’s worth it to go out and look for prey, to
see which works can bring new blood to the art market.”).
232
See generally Daniel Range, Note, Deaccessioning and Its Costs in the
Holocaust Art Context: The United States and Britain, 39 TEX. INT’L L.J. 655 (2004).
233
See Tony Paterson & David Cox, German Crisis Meeting Called on Nazi
Art Sales, TELEGRAPH.CO.UK, Nov. 15, 2006, http://www.telegraph.co.uk/ (describing
German museum community’s publicly stated fears that its heritage is being “spirited
away from public view and sold off for millions to private collectors” at the expense of
the public’s right to view the work).
234
See Modern Art Notes, http://www.artsjournal.com/man/2006/09/ (Sept. 19,
2006) (“[I]f you want to be angry at someone for not ensuring that the Klimts ended up
in private collections, what about the wealthy trustees at major museums?”).
235
See, e.g., John Follain, Trader of Lost Art, SUNDAY TIMES, Sept. 24, 2006,
available at http://stolenvermeer.blogspot.com/2006/09/sunday-times-september-242006-feature.html (quoting Clemens Touissant, Nazi-looted art “bounty hunter,” as
stating that repatriated “works go back on show sooner or later—the Klimt never went
into a bank vault, it’s already on show in New York”); AAMD Newsletter, Art Museums
and Private Collectors, and the Public Benefit, Jan. 2007 (“More than 90% of the art
collections held in public trust by America’s art museums were donated by private
individuals.”). Recent tax code amendments enacted as part of the 2006 Pension
Protection Act may have the potential of discouraging donations to museums. See, e.g.,
Anne Tergesen, These Gifts Don’t Keep on Giving, BUSINESS WEEK, Nov. 27, 2006, at
18.
236
See Eric Gibson, With Klimt Comes Condemnation, WALL ST. J., Sept. 29,
2006, at W13 (“Long-denied heirs like Ms. Altmann should be allowed to do as they
please with their property once they have recovered it. Isn’t that, so to speak, the whole
point?”); accord Steven E. Thomas, Due Diligence and How to Avoid Acquiring
Holocaust Looted Art, and What to Do If You Own Art with Uncertain Provenance for
WWII Years, in ENTERTAINMENT, ARTS, AND SPORTS LAW, at 481, 484 (A.L.I.-A.B.A.
Course of Study No. SK035, 2005) (“Title is ownership—the right to possess, control,
use, transfer and/or dispose of an object.”).
237
See Paterson & Cox, supra note 233 (quoting Ronald Lauder: “Remember
how [the art] got [in the museums] in the first place . . . . The owners were either killed
or sent to Auschwitz. German museums were only too ready to buy this stuff. These
were people who died because they were Jewish.”). See generally KARL E. MEYER, THE
PLUNDERED PAST (1973) (discussing public and private benefits of an increasingly highpriced art market).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
197
In conclusion, the Nazi-Looted Art Tribunal must
remain independent from national oversight to prevent
emotional attachment to art from infiltrating the decisionmaking process. Accordingly, straightforward arbitration
procedures for appointing arbitrators should be used, as under
the UNCITRAL Rules.238 The UNCITRAL Rules were designed
for commercial arbitration, but were modified for use in the
Iran-United States Claims Tribunal.239 Similarly, the Rules
would need to be modified for the Nazi-Looted Art Tribunal to
render them appropriate “for claims by private parties against
sovereign states.”240
Finally, it should be noted that creating the Nazi-Looted
Art Tribunal would vitiate the need for parallel domestic
restitution commissions and panels.241 Thus, money saved on
238
The UNCITRAL Rules can be modified as necessary, as was done in the
Iran-United States Claims Tribunal. See, e.g., THE HAGUE, supra note 168, § 8.1.4.
Moreover, The Permanent Court of Arbitration likely could be relied upon at least for
early assistance in operating the Tribunal. See id. § 6.1.6.5. The typical arbitration
appointment process should be utilized. See, e.g., id. § 8.1.2. One issue that will need to
be considered is to what extent arbitral awards are published. The art world is
notoriously secretive. E.g., Hawkins et al., supra note 147, at 92 (“To encourage use of
[a looted art] registry, it is crucial that the information provided be kept confidential,
with [limited] exceptions . . . .”). But secrecy in the context of World War II profiteering
is no longer accepted by the survivor community or historians—although some
commissions’ reports, such as those of the Drai Commission are confidential. See supra
Part II.B (discussing creation of historical commissions); BARKAN, supra note 22, at xvi
(“The demand that nations act morally and acknowledge their own gross historical
injustices is a novel phenomenon.”); French Agreement, supra note 57, at Annex B ¶ J.
Moreover, the art community’s sense of entitlement to secrecy also has been questioned
specifically in the context of Nazi-looted art. See, e.g., Menzel v. List, 24 N.Y.2d 91, 96
(1969). Compromise positions are possible that would allow for the creation of Tribunal
precedent, but whether they are desirable constitutes a serious policy decision.
Compare Hawkins et al., supra note 147, at 92 (calling for strict confidentiality of
proceedings) with Pell 1999, supra note 10, at 61 (calling for publication of precedent
with parties’ names redacted) and THE HAGUE, supra note 170, § 8.1.4 (“[T]he fact that
all of the Tribunal’s awards and decisions and many of its more significant procedural
orders have been published has contributed to a wider appreciation of the Tribunal’s
role in acting as a primary source of interpretive rulings on the UNCITRAL Rules.”).
See generally Sarah Williams, Confidentiality in Mediation: Is It Encouraging Good
Mediation or Bad Conduct?, 2005 DISP. RESOL. 209 (discussing pros and cons of
confidential ADR); Vilnius Forum Declaration, supra note 94, ¶ 2 (“The Forum further
encourages governments, museums, the art trade and other relevant agencies to cooperate and share information to ensure that archives remain open and accessible and
operate in as transparent a manner as possible.”).
239
Paul D. Friedland & Lucy Martinez, The UNCITRAL Arbitration Rules: A
Commentary, By David D. Caron, Lee M. Caplan, and Matti Pellonpää, 101 AM. J.
INT’L L. 519, 519 (2007) (book review).
240
Id.
241
One example is the United Kingdom’s Spoliation Advisory Panel,
established in April of 2000. See, e.g., Range, supra note 232, at 669. This panel seems
to be handling claims very well. At first blush, this might seem to indicate that the
United Kingdom should opt out of any treaty creating the Nazi-Looted Art Tribunal,
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domestic commissions and judicial resources could be used to
help continue archival research and fund the Nazi-Looted Art
Tribunal.
C.
Rectifying the Differences Between Common Law and
Civil Law
Now that almost sixty years have passed since the war
ended, most of the litigation is brought by heirs of survivors,
not survivors themselves.242 Understandably, those heirs do not
always have complete information about what happened to the
art during or immediately after the war.243 In some cases, those
proclaiming to be heirs are not actually entitled to the art,244
and in other cases, the survivors have already reached a
settlement with people or entities holding the art.245
but to do so would deny its museums and collectors the multi-jurisdictional repose
offered by the title clearinghouse aspect of the Tribunal.
242
Pell 1999, supra note 10, at 53. One commentator addressed the effect of
the passage of time on Nazi-looted art litigation, particularly with regard to a laches
defense:
In addition to evidentiary issues and concern about the harm caused to the
defendant, the policy arguments that favor plaintiffs also weaken over the
course of time. Currently, the plaintiffs in these cases are Holocaust
survivors, their children, or their grandchildren. The defendants are
frequently the initial good-faith purchasers who purchased the artworks
shortly after the war. As both parties become more remotely connected to the
original parties to the dispute (both the actual theft victim and the Nazis or
the thief), the policy of reuniting Holocaust victims with their stolen property
becomes weaker and the interest in quieting title becomes stronger. . . . It is
unclear why, under equitable principles, the original owner’s distant
descendants would be any more entitled to the stolen works than the equally
blameless good-faith purchasers who currently possess stolen works. Courts
may find the policy of returning property stolen by the Nazis to its original
owners less compelling when the plaintiff is several generations removed
from the original owner, never knew the original owner, and has no
connection with the stolen property.
Alexandra Minkovich, The Successful Use of Laches in World War II-Era Art Theft
Disputes: It’s Only a Matter of Time, 27 COLUM. J.L. & ARTS 349, 380-81 (2004).
243
PALMER, supra note 26, at 53.
244
Bernstein, supra note 144, at 128-29; see also Holocaust Assets Hearings
Before the H. Comm’n on Banking and Fin. Servs., 106th Cong. 177 (2000) (testimony
of Glenn D. Lowry, Director of Museum of Modern Art, New York, with regard to the
Portrait of Wally litigation: “Although we had assumed from the start the good faith of
the people claiming the pictures, it now appears likely that neither family has a bona
fide claim. In the case of one of these two claims, the painting was claimed by a former
reporter for the New York Times. As it turned out, her claim was based upon her being
the widow of a son of the pre-War owner’s cousin, who, in turn, was not an heir to the
painting.”).
245
PALMER, supra note 26, at 55; Bernstein, supra note 144, at 128-29; see
also Stephan J. Schlegelmilch, Note, Ghosts of the Holocaust: Holocaust Victim Fine
Arts Litigation and a Statutory Application of the Discovery Rule, 50 CASE W. RES. L.
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
199
Statutes of limitation exist, in part, to protect current
possessors of art against fading memories and lost evidence.246
As stated by Ralph E. Lerner:
The public policy objectives for having a statute of limitations
include: (1) the prompt filing of suit by a party, on the premise that
those with valid claims will not delay in asserting them; (2) the
protection of a defendant from having to defend a claim after a
substantial period of repose, where evidence may have been lost or
destroyed; and (3) the promotion of the free trade of goods, by
making sure that those who have dealt with property in good faith
can enjoy secure and peaceful possession after a certain, specified
time period.247
That does not, however, tell the whole story, especially
in the context of art theft. Fairness to a plaintiff is a
consideration in how U.S. courts determine when the
limitations period begins to run. This principle bears out
slightly differently from state to state within the United States.
Most states follow the “discovery rule,” whereby the limitations
period begins to run when the true owner knew or reasonably
should have known the correct person or institution to sue.248
New York follows the “demand and refusal” rule, which
dictates that the limitations period begins to run only when the
true owner demands the artwork’s return from the current
possessor and is refused.249 This rule may sound extreme, but it
is greatly tempered by the applicability of the laches defense,
whereby a plaintiff’s claim will be barred if the plaintiff
unreasonably delayed bringing the claim and such delay
caused the defendant to suffer “prejudice.”250 Finally, regardless
REV. 87, 117 (1999) (“The publicity of such high profile cases, such as the Seattle [Art
Museum] case, will encourage plaintiffs with tangential and weak cases to sue
museums, realizing that public sentiment is likely to push the museum toward
settlement.”).
246
PALMER, supra note 26, at 54-55; see also Suzette M. Malveaux, Statutes of
Limitations: A Policy Analysis in the Context of Reparations Litigation, 74 GEO. WASH.
L. REV. 68, 76 (2005).
247
Lerner, supra note 7, at 17 (citing John G. Petrovich, The Recovery of
Stolen Art: Of Paintings, Statues and Statutes of Limitations, 27 UCLA L. REV. 1122,
1127-28 (1980)).
248
E.g., O’Keefe v. Snyder, 416 A.2d 862, 870 (N.J. 1980).
249
E.g., Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 430 (N.Y.
1991).
250
E.g., id.; see also Patty Gerstenblith, Cultural Property and World War II:
Some Implications for American Museums: A Legal Background, in LEGAL PROBLEMS
OF MUSEUM ADMINISTRATION, at 17, 23 (A.L.I.-A.B.A. Course of Study No. SC40, 1998);
Alexandre A. Montagu, Recent Cases on Recovery of Stolen Art—The Tug of War
Between Owners and Good Faith Purchasers Continues, 18 COLUM.-VLA J.L. & ARTS
75, 77 (1994); Hawkins et al., supra note 147, at 66-69. It should also be noted that
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of which time-bar principle applies in a given state, one thing
remains true in the United States: “[T]he principle has been
basic in the law that a thief conveys no title as against the true
owner.”251 Thus, unless the original owner’s claim is timebarred, a plaintiff who can prove ownership and theft should
prevail in litigation against a bona fide purchaser.252
There are valid criticisms of this approach. A Nazilooted artwork may have passed through many individuals in
different nations and
ended up in the hands of good faith purchasers who had no
knowledge that the work they acquired ten years ago or more, from a
reputable gallery, might have a tainted provenance and may have
been stolen property. As a result, one often ends up with two victims:
the original owner and the unknowing purchaser.253
In contrast to the U.S. approaches, civil law nations tend to
favor bona fide254 purchasers to promote commercial
certainty.255
Some jurisdictions, like Italy, absolutely protect such purchasers,
recognizing that they have lawful title from the instant the item is
purchased. Other countries, including France, Germany and
California seems to follow a modified approach to the due diligence element such that
the statute of limitations would not begin to run until the claimant actually found the
object. See CAL. CODE CIV. PROC. § 338(c) (West 2007); Nafziger v. Am. Numismatic
Soc’y, 49 Cal. Rptr. 2d 784, 786 (Ct. App. 1996); Soc’y of Cal. Pioneers v. Baker, 50 Cal.
Rptr. 2d 865 (Ct. App. 1996). Additionally, the doctrine of adverse possession may
present another nuance to the statute of limitations inquiry. E.g., Collins, supra note 4,
at 130-31.
251
Menzel v. List, 267 N.Y.S.2d 804, 819 (Sup. Ct. 1966), modified, 279
N.Y.S.2d 608 (App. Div. 1967), rev’d on other grounds, 246 N.E.2d 742 (1969). The
U.C.C. follows the same principle, see U.C.C. § 2-312, but would provide for
reimbursement of the bona fide purchaser by the seller if the seller is a merchant
regularly dealing in such goods. Id. The term “merchant” would apply to “a commercial
art gallery, an art auctioneer, and a private art dealer,” but would not apply to “a
collector whose occupation is not related to art.” See 1 ART LAW: THE GUIDE FOR
COLLECTORS, INVESTORS, DEALERS, AND ARTISTS 77 (Ralph E. Lerner & Judith Bresler
eds., 2d ed. 1997). “This provision [of the U.C.C.] seemingly encourages a buyer to
purchase goods from a reputable dealer where title may be dubious, and provides
dealers with economic incentive to make the greatest efforts to ensure proper title.”
Kaplan, supra note 211, at 725-26 n.164. English common law is similar. See id.
252
See Gerstenblith, supra note 250, at 23; Montagu, supra note 250, at 75;
Hawkins et al., supra note 147, at 95.
253
See Dugot, supra note 7, at 390-91.
254
European law tends to use the term “good faith” purchaser. See id.
255
See, e.g., John Henry Merryman, American Law and the International
Trade in Art, in INTERNATIONAL SALES OF WORKS OF ART 425, 428 (Pierre Lalive ed.,
1985).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
201
Switzerland allow such purchasers to acquire good title to looted or
stolen goods once the applicable limitations period has run.256
Moreover, a successful plaintiff must reimburse the bona fide
purchaser the purchase price paid.257 This difference between
the U.S. and European approaches to stolen art cases is “one of
the few examples of precisely contrary rules in Common Law
and Civil Law systems.”258
In the context of Nazi-looted art, the morality dimension
should cause us to reconsider the definition and ramifications
of bona fide purchaser status. Although the point may be
arguable, the law of many civil law nations would have allowed
title to pass unless the purchaser should have known the art
was looted—not merely suspected the possibility of Nazi taint
simply because the art predated World War II.259 Today,
however, after the Washington Conference and Vilnius Forum,
the world has recognized that the breadth of targeted, racially
motivated looting led to widespread injustice. Strict adherence
to the U.S. discovery-type approaches, however, proves too
much for many nations accustomed to the civil law approach.
Thus, any remedy today should make some accommodation for
one who at the time of purchasing had bona fide purchaser
status. That accommodation, however, should not extend to the
full length that would be afforded under civil law.
Tribunal awards should take into account history and
the information that was available at the time of the
purchase.260 Thus, just as in evaluating bona fide purchaser
256
Parker, supra note 3, at 691 (citations omitted); accord Kaplan, supra note
211, at 728 n.165 (providing extensive citations to European laws and stating: “In
many European nations, a cause of action accrues [at least with regard to claims to be
brought against bona fide purchasers] the moment the theft occurs.”). Switzerland, in
particular, has come under great criticism for the ease of its laws concerning bona fide
purchaser status. E.g., FELICIANO, supra note 23, ch. 11. This was particularly true in
light of its short limitations period. Id. Switzerland recently amended its law. Federal
Act on the International Transfer of Cultural Property (June 20, 2003), available in 12
INT’L J. CULTURAL PROP. 467 (2005). Japan still follows a strict two-year statute of
limitations. Charles Palmer, Recovering Stolen Art: Avoiding the Pitfalls, MICH. BAR J.,
June 2003, at 20, 22.
257
E.g., Merryman, supra note 255, at 428; Alejandro M. Garro, The Recovery
of Stolen Art Objects from Bona Fide Purchasers, in INTERNATIONAL SALES OF WORKS
OF ART 503, 505 (Pierre Lalive ed., 1985).
258
Merryman, supra note 255, at 428.
259
See, e.g., Parker, supra note 3, at 691; Kaplan, supra note 211, at 726
n.165. But see Declaration and Expert Report of Dr. Ulf Bischof, Max Stern Estate v.
Bissonnette, No. 06-211 (ML) (D.R.I., June 8, 2007) (on file with author) (stating that
title cannot pass through a thief under German law despite the passage of the statute
of limitations).
260
See Lerner, supra note 7, at 36-37.
202
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status under either common law or civil law, the circumstances
of the transaction, to the extent that they can now be known,
should be considered. The benchmark should not be rigidly
legalistic and focus solely on whether the applicable law would
have allowed title to pass.261 Rather, the focus should be on
whether, under the circumstances of the transaction, the
purchaser should have suspected that there was a reasonable
chance that the art had been looted. Thus, transactions
completed during or shortly after the war, particularly after
the Nuremberg Laws in 1935, which laid bare the extent of
racially motivated persecution in the Third Reich,262 should be
viewed through a more critical lens.
Moreover, transactions completed after the publication
of widely known and relatively accessible lists of Nazi-looted
art263 should be viewed in light of the availability of that
information. For example, purchases of artwork listed in the
French Spoliation List (Répetoire des biens spoliés),264 after its
publication and dissemination in 1947,265 should be viewed
through a highly critical lens. The same is true of art with a
provenance indicating that it passed through the hands of Nazi
dealers or their suspected conspirators when that information
could have been fairly easily checked by referencing the Final
Report issued by the Office of Strategic Service’s Art Looting
Investigation Unit.266 More recent transactions should be
viewed in light of the availability of catalogues raisonnés267 and
searchable databases.268
261
See Lalive, supra note 257, at 728 n.165.
See generally SCHNABEL & TATZKOW, supra note 17.
263
Thomas, supra note 236 (describing the scope of due diligence and various
research sources and databases).
264
Marie Hamon, Spoliation and Recovery of Cultural Property in France,
1940-94, in THE SPOILS OF WAR, 63, 64 n.3 (Elizabeth Simpson ed., 1997).
265
Id.
266
The Final Report was disseminated in arts circles after the war and
provides extensive information about the art market during the war, including the
names of individuals and galleries known or suspected to have trafficked in Nazi-looted
art. According to the United States Holocaust Memorial Museum, the World Jewish
Congress Commission has published an index of the names appearing in the Final
Report for Art Recovery and by the Art Newspaper. Resources and Information: List, by
Country, of Governmental and Private Attempts to Trace Holocaust Assets, Including
Historical Commissions, and Forced and Slave Labor, UNITED STATES HOLOCAUST
MEMORIAL MUSEUM, available at http://www.ushmm.org/assets/. The Final Report is
available at http://docproj.loyola.edu/oss1/toc.html (last visited Nov. 3, 2007).
267
See generally Catalogues Raisonnés and the Authentication Process: Where
the Ivory Tower Meets the Marketplace, 8 IFAR J. Nos. 3 & 4 (2006) (double issue
publishing IFAR Conference proceedings) [hereinafter IFAR Catalogues Raisonnés].
268
See supra notes 111-120 and accompanying text.
262
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
203
It also must be noted that the circumstances of the
transaction would be deeply affected by the market value of the
work at the time of sale, as well as the buyer’s level of
sophistication.269 Low-value objects purchased by dabblers in
the art market simply would not render themselves suitable to
exhaustive due diligence.270 In contrast, sophisticated parties
would have known of the resources available to search for Nazitainted provenance information.271 Thus, flexible evaluation of
and implication of bona fide purchaser status is important to
achieve a fair evaluation of claims.
One particular time period poses an interesting moral
conundrum for evaluating the claims. Some time after the war
(at a point that should be refined through additional historical
research), the art world seemed to stop thinking about the
likelihood of Nazi-tainted provenance.272 The art world was
renowned for its practice of fostering multi-million dollar
transactions with little or no questions asked about the
provenance of the work.273 Or, when provenance was a concern,
it was most likely in regard to the authenticity of the work, not
whether it had ever been looted.274 Thus, assurances that a
work of art was from an “old European collection” were enough
for the market to allow the seller to remain anonymous.275
Art purchased in 1975 or later poses the conundrum.
The French statute of repose as applied to practically all Nazilooted art disputes would have run in 1975.276 While there is no
available data on whether there was a dramatic upsurge in the
art market that year, such information could prove to be very
informative. For example, should such an upsurge be
attributed to “legal rationality” in the art market? In other
269
E.g., Thomas, supra note 236.
E.g., MARIE C. MALARO, A LEGAL PRIMER ON MANAGING MUSEUM
COLLECTIONS (2d ed. 1998) (“In acquisitions, whether by purchase or donation,
museums should . . . make reasonable efforts to probe for indications of trouble (the
level of efforts should be commensurate with the value of the material).”).
271
See Thomas, supra note 236.
272
See Emily J. Henson, Note, The Last Prisoners of War: Returning World
War II Art to Its Rightful Owners—Can Moral Obligations Be Translated into Legal
Duties?, 51 DEPAUL L. REV. 1103, 1149 (2002).
273
See Schwartz, supra note 4, at 21 (quoting Hector Feliciano, Op-Ed.,
Confront the Past, Search for Provenance, L.A. TIMES, Mar. 15, 1998, at M2).
274
See id.
275
See Menzel v. List, 246 N.E.2d 742, 745 (N.Y. 1969) (Well-known gallery
owner Perls, who purchased a Chagall painting in 1955 that turned out to have been
looted, testified that it would be an insult to question a reputable dealer selling a
painting about its provenance.).
276
See Kreder, supra note 74, at 1221.
270
204
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words, if there were an upsurge, would it be attributable to
absorption by the market of the legalistic view that purchasers
could rest assured that pre-war art provided a safe investment?
Or should such an upsurge be viewed with a more cynical eye?
Should we surmise that unscrupulous dealers—and perhaps
some clients—were waiting to take advantage of the thirtyyear benchmark to knowingly profit from Nazi looting and
Jewish suffering?277 As stated by one scholar:
Even assuming, for present purposes, that the present owners were
unaware at the time of acquisition of the murky provenance of the
cultural items they obtained, one would still have to question
seriously whether in this context the normal meaning of good faith
has any validity. The great quantities of valuable paintings and even
more so of Jewish cultural and religious artifacts that suddenly
surfaced after World War II and flooded world markets must have
raised—or at the very least should have raised—some very difficult
questions in the minds of all those involved in the deals connected
with them, including some globally renowned auction houses.278
Without extensive proof of such malicious intent, however, it
seems that transactions concluded after May 7, 1975, should be
afforded more deference than those entered into earlier.279
Currently, wide disparities in legal systems promote
instability in the market for pre-war art. “A chorus of observers
has concluded that the lack of uniformity among various
nations’ laws on the transferability of title to chattels sold by a
thief facilitates the laundering of stolen art.”280 The
international “legal framework, made up of nonharmonized
national laws . . . enables calculating dealers or purchasers to
buy or sell in countries whose solutions favor their personal
277
See Henson, supra note 272, at 1148-49 (“Many art dealers were eager to
profit from the Nazi sales of ‘degenerate art’ and most knew exactly where it was
coming from.”); accord Kelly Diane Walton, Leave No Stone Unturned: The Search for
Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9
FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 549, 563 (1999). But see Lee Rosenbaum,
Will Museums in U.S. Purge Nazi-Tainted Art?, ART IN AMERICA, at 37, 39 (May 1998)
(“American museums are at pains to point out that their situation differs from that of
various European museums, which knowingly acquired large numbers of art works
soon after they were seized by the Nazis through theft or forced sales.”).
278
Yehuda Z. Blum, On the Restitution of Jewish Cultural Property Looted in
World War II, 94 AM. SOC’Y INT’L L. PROC. 88, 89-90 (2000).
279
The war in Europe ended May 7, 1945 with the signing of the “German
Surrender Documents.” The text of these documents can be found at the following web
site: http://www.historyplace.com/worldwar2/timeline/surrender.htm (last visited Aug.
28, 2007). See also James J. Hastings & Goodard Winterbottom, Introduction,
GERMANY SURRENDERS, 1945 (1976).
280
Steven F. Grover, Note, The Need for Civil-Law Nations to Adopt Discovery
Rules in Art Replevin Actions: A Comparative Study, 70 TEX. L. REV. 1431, 1445 (1992).
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
205
transactions, thus potentially enhancing the black market.”281
Regardless of the widespread belief that the panoply of
national laws creates problems for theft victims to recover their
property, it is highly unlikely that individual nations will
disregard firmly entrenched laws that favor either the victim or
the market.282 Creating the Nazi-Looted Art Tribunal to make a
decision on the facts, instead of formalistic interpretations of
vague legal principles such as bona fide purchaser status,
jurisdiction, choice of law, and statute of limitations, would
decrease the legal uncertainty surrounding claims283 and allow
decisions to be made that fairly consider both the theft victim
and the honest purchaser.
In light of the inability of nations to reach consensus on
the legal standards applicable to Nazi-looted art claims,
compromise is necessary. In his 1999 article calling for the
creation of a Nazi-looted art commission, Ralph E. Lerner
stated that “the commission should possess the authority to
award reasonable compensation . . . .”284 His statement was in
accordance with the vague AAMD guidelines. He went on to
clarify his interpretation of what would be “reasonable” as
follows:
I underline that the commission’s authority for awarding restitution
would be confined to providing reasonable compensation, not the
current fair market value of the stolen artwork. The amount of
compensation would be determined under guidelines developed by
the commission which would balance competing needs, and most
likely award a value appropriate at some time in the past or some
percentage of current value.285
281
Quentin Byrne-Sutton, Who Is the Rightful Owner of a Stolen Work of Art?
A Source of Conflict in International Trade, in INTERNATIONAL SALES OF WORKS OF ART
500, 500 (Pierre Lalive ed., 1985).
282
See, e.g., Grover, supra note 280, at 1457-58 (explaining entrenchment of
repose doctrine in civil law nations).
283
E.g., Pell 1999, supra note 10, at 43-44. Moreover, in determining whether
a purchaser qualifies for bona fide purchaser status, courts inherently impose some
degree of duty on buyers, but no one can be sure exactly what standard a court will
apply until a suit is filed and decided. Generally, the duty imposed is one of diligence,
and it requires that a buyer do some “requisite checking” to find out if the work being
bought was stolen. The law, however, usually does not require that a buyer actually
learn the truth. The problem is that most buyers (excluding those in the art industry)
lack the sophistication or the means to do this sort of research before making a
purchase. Rostomian, supra note 75, at 288 (citing Solomon R. Guggenheim Found. v.
Lubell, 569 N.E.2d 426, 431 (N.Y. 1991); Linda Pinkerton, Due Diligence in Fine Art
Transactions, 22 CASE W. RES. J. INT’L L. 17 (1990)).
284
Lerner, supra note 7, at 36.
285
Id. at 36-37.
206
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This Article seeks to reign in Mr. Lerner’s proposal in that
100% restitution should be awarded where warranted, as
under the Altmann facts, but should not be awarded in most
cases involving a good faith purchaser. What is “reasonable”
must turn on all circumstances of a given case. Leaving art
that deserves full restitution where it lies is not the right
solution because it cannot be denied that a significant number
of “museums, art dealers and collectors, through their postwar
practice of turning a blind eye towards art with suspicious
provenance that suddenly appeared on the marketplace, are
responsible for creating a market that permits looted art to be
purchased by innocent buyers.”286 In conclusion, reasonableness
is relative.
D.
Post-War Settlements and Res Judicata Principles
While the art never should have been looted, and the
Nazis never should have committed atrocities, it nevertheless
seems that fair settlements reached after the war should be
honored.287 Failure to honor fair post-war settlements would
undermine the commercial certainty necessary for a viable
market in pre-war art.288 More historical research is required to
286
Bazyler & Fitzgerald, supra note 12, at 711-12 (citing Judith Dobrzynski,
Loot-Holders Learn that Honesty Can Be Tricky, RALEIGH NEWS & OBSERVER, Sept. 13,
1998, at G3: “When the idea of levying a tax on dealers and auction houses, or their
transactions, has come up at symposiums and conferences, it has not won resounding
support from the art trade, with few people in the business feeling a responsibility for
what happened in the war.”); see also Rosenbaum, supra note 277, at 39.
A comparison can be drawn to post-war views concerning heirless property.
After the war, Jewish leaders felt quite strongly that “heirless property should not
revert to the local government, as was customary under international law, because
many of these governments had committed crimes against the Jews.” KURTZ 2006,
supra note 23, at 154.
287
Cf. David Rising, German Panel Rules Against Return of Nazi-Looted
Posters, CHI. TRIB., Jan. 26, 2007, at 9 (describing the German Limbach Commission’s
panel ruling against a Holocaust victim’s heir who sought his father’s poster collection
held by Berlin’s Historical Museum and now estimated to be worth between $10
million and $50 million, partially on the ground that his father received $50,000 in
compensation from the West German government in 1961 when it was believed that
the collection had been destroyed in the war). But see Germany to Return Presidential
Painting
to
Jewish
Heirs,
Feb.
22,
2007,
available
at
http://msnlist.te.verweg.com/2007-February/006933.html (describing a family’s recent successful
effort for restitution despite the failure of a post-war compensation claim). The Drai
Commission offsets previous compensation, but such compensation does not preclude
an award. French Agreement, supra note 57, at Annex B, ¶ I(C). The same is true of
the Austrian Agreement, supra note 59, at Annex A, ¶ 2(f).
288
Bazyler & Fitzgerald, supra note 12, at 710 (quoting Norman Kempster,
Tracking the Nazi Plunder, L.A. TIMES, Nov. 30, 1998, at F1); Georgina Adam, The
Nazi Bounty Hunters, THE ART NEWSPAPER, Dec. 1, 2006, available at
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
207
determine whether the Tribunal should presume that post-war
settlements were fair. At least in the case of the Austrian postwar mechanism, such a presumption does not seem
warranted.289 As to other post-war settlements, without
compelling evidence of governmental misconduct after the war,
it seems that post-war settlements should be given deference.
Perhaps those settlements that exceeded 50% of the higher of
either the work’s post-war or pre-1945 market value should be
presumptively deemed “fair” and given res judicata effect.
E.
Summary of Considerations for the Tribunal
In conclusion, arbitrators for the Tribunal should
consider the following non-exclusive factors:
1. Strength of the factual evidence that the artwork at
issue was looted from the claimant (or that the
claimant is the valid heir of a proven art theft victim).
2. Whether any post-war compensation paid on the
claim was reasonably fair at the time.
3. The extent of the claimant’s attempts to find and
claim the artwork after the war, and the extent of
publication of the claim which would avoid
prejudicing bona fide purchasers who had conducted
provenance research at the time of purchase.
4. Circumstances of the purchase.
5. Level of publication of the artwork after the war such
that one searching for the artwork could have located
it and identified the possessor.
The table on pages 208-209 depicts potential Tribunal
awards in light of the relevant circumstances of a case. It is not
intended to depict all possible equitable solutions. The
arbitrators would need a wide degree of equitable discretion to
decide cases. Thus, their decision-making process would be a
hybrid between the flexibility of mediation and the finality of
binding arbitration.
http://www.theartnewspaper.com/article01.asp?id=526 (“The increasing number of
Nazi loot claims and the shifting legal ground on which they are based is worrying
museums as well as art market professionals. At stake are works of art worth
hundreds of millions of dollars; many have been hanging in major museums for
decades, others belong to owners who bought them in good faith on the open market.”).
289
See supra Part II.B.
Active search immediately after
the war, but no active search
since expiration of period for
asserting claims to relevant
national post-war tribunal(s).
Active search after the war but
abandoned after ten years.
Received compensation of less
than 50% of the higher of postwar or pre-1945 market value
from any post-war national
tribunal (overcomes any
fairness presumption).
Subsequent to claimant’s search,
work was listed in catalogues
raisonnés or very visible
catalogs such as globally
distributed fliers from very
large museums highly likely to
be seen by one performing
diligent search.
Listed in few sources not highly
likely to be found by purchaser
or claimant doing diligent
search.
75% restitution.
Purchased before 1975.
Paid 75% or more of FMV at time
of purchase.
Possible remainder warrantytype claim against gallery or
other intermediary if still in
existence.
Purchase from questionable (but
not listed) dealer.
Paid less than 75% of FMV at
time of purchase.
Concealment of claim and/or
purchase by sophisticated
party from dealer on U.S.
military list of dealers in
looted art.
Purchase price and timing of
purchase irrelevant.
Circumstances of
Defendant’s Purchase
BROOKLYN LAW REVIEW
3% commission if present FMV
over $500,000;
2% commission if present FMV
between $200,000–$500,000; or
1.5% commission if present FMV
under $200,000.
Shared equally by both parties.
50% restitution, less the sum of
(1) post-war compensation
from a national tribunal, and
(2) bona fide purchaser purchase
price up to 25% of present FMV.
3% commission if present FMV
over $500,000; or
1.5% commission if present FMV
under $500,000.
Payable by defendant.
3% commission payable by
defendant.
Active search after the war that
did not reveal location of art or
correct defendant.
“Laches” Criteria
Concerning Plaintiff’s
Search and Other Facts in
Plaintiff’s Possession
Listed in Repertoire or other
widely distributed post-war
listing of looted art highly
likely to be seen by a
sophisticated purchaser or
claimant doing a diligent
search.
Objective “Due Diligence”
Criteria Concerning
Publication of Looting by
Time of Defendant’s Purchase
100% restitution; conveyance of
actual art (or cash if both parties
agree).
Tribunal Award
Including Commissiona
Paid to Tribunal
Sample of Potential Tribunal Awards
208
[Vol. 73:1
b
a
Never listed in Repertoire, any
post-war list of looted art, Art
Loss Register, or any other
post-war database.
Never listed in Repertoire, any
post-war list of looted art, Art
Loss Register, or any other
post-war database.
Objective “Due Diligence”
Criteria Concerning
Publication of Looting by
Time of Defendant’s Purchase
No evidence of knowledge of or
cause to suspect theft.
Purchased before 1975.
No evidence of questionable
purchase or purchased after
1975.
Cannot prove with any certainty
that the painting was looted or
subjected to forced sale
although it went missing in
the war.b
Circumstances of
Defendant’s Purchase
Peremptory search after the war;
no recovery from any post-war
national tribunal.
Painting of relatively low present
FMV (under $100,000).
“Laches” Criteria
Concerning Plaintiff’s
Search and Other Facts in
Plaintiff’s Possession
All commissions would be based on present fair market value (FMV).
One scholar would disagree with this proposal. See Andrew Adler, Expanding the Scope of Museums’ Ethical Guidelines with Respect to NaziLooted Art: Incorporating Restitution Claims Based on Private Sales Made as a Direct Result of Persecution, 14 INT’L J. CULT. PROP. 57 (2007).
$3000 commission payable by
plaintiff.
No compensation.
1% commission payable by plaintiff
or defendant, as is equitable.
25% restitution.
Tribunal Award
Including Commissiona
Paid to Tribunal
Sample of Potential Tribunal Awards (continued)
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
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210
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The table also reflects recommended commission
payments to help fund the Tribunal, which the arbitrators
should have flexibility in assessing. Besides this source of
funding, signatory nations should provide a significant reserve
for the Tribunal’s administrative budget.290
Any arbitral awards could be enforced against the losing
party by the claimant under the New York Convention.291 This
financing structure would avoid underfunding problems, such
as those experienced in the Iran-United States Claims
Tribunal.292
F.
Database Searching and Title Clearinghouse
In 1980, the New Jersey Supreme Court, in deciding a
dispute involving Georgia O’Keefe, bemoaned the absence of “a
reasonably available method for an owner of art to record the
ownership or theft of paintings.”293 We have already seen the
resolution of some stolen art claims because of the existence of
the Art Loss Registry (“ALR”). The ALR may be searched for a
fee and remains private to prevent thieves from profiting from
knowing which thefts have not yet been reported.294 Its success
stories include the recovery of works by Claude Monet, Pierre
Bonnard, Alfred Sisley, Max Liebermann, Karl Hofer, Camille
Pissarro, and Ferdinand Georg Waldmuller.295 The ALR
reunites claimants with their stolen works when the claimants
register the theft and a potential purchaser performing due
diligence searches the database to make sure that the purchase
can be completed in good faith.296
In 1998, the Art Loss Registry (“ALR”) dedicated a portion of its site
to a listing of works of art missing since World War II. Here,
290
See supra note 176 and accompanying text.
See supra note 177 and accompanying text.
292
See generally Lillich & Barstow Magraw, supra note 176, at 13-14, § 1.3.1.
293
O’Keefe v. Snyder, 416 A.2d 862, 872 (N.J. 1980).
294
Since the project started, the ALR has been responsible for identifying
twenty-one works stolen during World War II, found in auction house catalogs or with
art dealers. The Art Loss Register, http://www.artloss.com/Default.asp (last visited
Aug. 28, 2007).
295
Id.
296
Although the potential purchaser paying for the search may not disclose
the identity of the seller, it seems that many cases that raise a red flag lead to
resolution. E.g., id. But see Amiram Barkat, Lawyers Halt Auction House Sale of
Nazi-Looted Paintings, HAARETZ, Jan. 12, 2006, available at http://www.haaretz.com/
hasen/spages/795066.html; Howard Reich, Answers Just Out of Reach in Art Hunt:
Christie’s Won’t Reveal Possible Holder of Painting, CHI. TRIB., Dec. 22, 2002, available
at http://www.museum-security.org/02/154.html#5.
291
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
211
interested parties can search the database in French, German,
Italian, Czech, Hebrew and Spanish. The site encompasses art works
that have been reported missing from collections in France,
Germany, Belgium, Hungary, Russia, Italy, Austria, Poland and
Holland. To maintain this effort, representatives of the ALR visit art
trade fairs in Holland, Switzerland, Germany, France, Italy and the
United States, comparing the dealers’ stock to the database to
identify stolen and looted art. Claims are also compared to museum
records, Nazi confiscation lists, catalogue raisonnés, exhibition
catalogues and other literature to locate missing works.297
The ALR and other databases are essential for restitution of
Nazi-looted art, but more needs to be done. Unfortunately, the
creation of one comprehensive database would be impossible
for many reasons, including the vastness of the information.298
The Nazi-Looted Art Tribunal should therefore hire and train
individuals to research all publicly available and fee-based
databases.299 One example of untapped information that could
be cataloged systematically is provided by members of the
American Association of Museums and located on the
individual museums’ web sites. In September 2003, AAM
launched the Nazi Era Provenance Internet Portal (“NEPIP”),
“an online searchable database of Nazi-looted artworks that
made their way into the collections of U.S. museums.”300 A
widespread problem with much of the information, however, is
the absence of search engines to search the information.301
297
See Dugot, supra note 7, at 390.
Konstantin Akinsha, supra note 116, at 159, 162-63 (describing the
impossibility of the effort and the inadequacy of one such attempt by the Central
Registry of Information of Looted Cultural Property 1933-1945, which was created by
the Looted Art Research Unit in Europe of the Commission for Looted Art in Europe).
The Central Registry of Information web site, which is managed by the Coordination
Office for Lost Cultural Assets, is located at: http://www.lootedart.com (last visited
Aug. 28, 2007).
299
Some authors have proposed that one central database be created to deal
with the problem of Nazi-looted art or even all looted art worldwide. Hawkins et al.,
supra note 147, at 88-89 (proposing legislatively creating a central stolen art registry
that “should cover as much of the stolen art universe as is feasible”); Dugot, supra note
7, at 389, 393 (Director of Restitution at Christie’s commenting on “the lack of one
single repository of archival information or central global database which would greatly
facilitate and expedite provenance research”); Collins, supra note 4, at 117, 153-55
(calling for the creation of a central registry); Pell 1999, supra note 10, at 56. Although
this seems ideal, it is not practicable in light of the volume of data involved and the
amount of work already done in different languages and different formatting schemata
used in developing existing governmental (including those of the FBI and Interpol),
museum and private databases. See Akinsha, supra note 298, at 162-63.
300
Parker, supra note 3, at 678 (referencing The Nazi-Era Provenance
Internet Portal Project, http://www.nepip.org); see also Kennedy, supra note 131.
301
For example, in 2003, the Ministry of Culture of the Russian Federation
published a database of “cultural trophies” within many public institutions, including
298
212
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Thus, finding information within the jumble of photos,
descriptions, and data can be close to impossible.302 A trained,
funded, and committed staff employed by the Nazi-Looted Art
Tribunal to correct these problems would be an essential step
toward resolving remaining claims to Nazi-looted art.
First, the Tribunal’s staff could more effectively assist
claimants in finding their art than any existing organization or
national governmental office.303 Efforts to raise funds for
private restitution databases have not led to overwhelming
success;304 thus governmental funding is necessary to fulfill the
promises made in Washington and Vilnius. In addition to
funds, each participating nation could provide staff for the
Tribunal, ensuring a diverse array of language abilities to
allow for more efficient research across databases. For the
Tribunal’s staff to perform these searches in the most
the Pushkin State Museum of Fine Arts, the Hermitage Museum, the State Historical
Museum, the Schusev State Research Museum of Architecture, as well as various
libraries, archives, and provincial museums. See Akinsha, supra note 298, at 165. The
information on the web site “is published only in Russian, and the website does not
have a search engine, which makes any search extremely time consuming.” Id. “Hours
of browsing can yield unexpected results however: immediately after the publication of
information about the ‘replaced’ paintings kept in the Pushkin Museum in Moscow,
Polish experts recognized an important painting by Daniel Schultz that was looted by
the Nazis from the City Museum in Gdansk.” Id. at 165-66 n.10. The website is known
as the “Internet Project Restitution.” See Fyedyeral’noye Agyentstvo po Kul’turye i
Kinyematografii [Federal Agency on Culture and Cinema], Kulturye Tsyennosti:
Zhyertvi Voyni [Cultural Treasures: Victims of War], http://www.lostart.ru/ru/ (last
visited Aug. 28, 2007).
302
For example, although the German Lost Art Internet Database is regarded
as “probably the best of the national databases, as it is fully searchable,” its
organization can be troubling. Akinsha, supra note 298, at 164-65; see Lost Art Internet
Database, http://www.lootedart.de (last visited Oct. 12, 2007). Akinsha notes:
It appears that classification of the listed objects has been designed not by art
experts but by software designers. The “generic terms system” designed for
the classification of paintings by subject uses such sub-categories as:
“Allegory, Architecture, People / figure, Still-life, Coats of arms / Emblem,
Landscape, Animal motif, Person / figure Male person / figure Child /
adolescent person / Female person, etc.”
Akinsha, supra note 298, at 164-65 n.8 (quoting the Lost Art Internet Database); see
also Michael Franz, Four Levels and a Database: The Work of the Koordinierungsstelle
für Kulturgutversluste and www.lostart.de, in RESOLUTION OF CULTURAL PROPERTY
DISPUTES, supra note 11, at 169.
303
Cf. Pell 2004, supra note 11 (suggesting establishing a claims intake
process modeled after that of the Drai Commission to assist claimants); see also Hans
Dans, Claims for Looted Cultural Assets: Is There a Need for Specialized Rules of
Evidence?, in RESOLUTION OF CULTURAL PROPERTY DISPUTES, supra note 11, at 193. In
creating the Tribunal, the signatory nations should also consider whether to allow
claimants to petition their governments or the Tribunal during the claim intake
process to permit a claim that falls below the jurisdictional threshold when the facts
are extremely strong.
304
See Akinsha, supra note 298, at 168.
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
213
competent manner, they need access to information housed in
governmental archives.
Only nations that have opened their archives to
generate databases in accordance with the promises made in
Washington and Vilnius should be eligible to sign the treaty
establishing the Tribunal. Although in the past reaching
international agreement on firm principles was diplomatically
impossible, the passage of time has demonstrated that signing
on to the Tribunal would carry a significant benefit because it
would insulate a signatory nation’s nationals from litigation305
and enable them to take advantage of certain market benefits
discussed below. Thus, full compliance with the non-binding
resolutions reached in Washington and Vilnius should be
demanded before granting immunity from litigation.
Second, individuals considering whether to purchase art
can pay a relatively small fee to search the database.306
Currently, a purchaser seeking to buy any significant preWorld War II work in good faith would most certainly search
the artist’s catalogue raisonné307 to investigate the work’s
provenance, as well as its authenticity.308 Most present-day
purchasers of pre-war works above $100,000 probably would
pay for a search of the ALR, and perhaps other databases and
resources depending on the circumstances.309 Nonetheless,
searches would not be conducted as to all purchases:
The extent of due diligence a purchaser can perform as part of the
purchase of art will vary from transaction to transaction based on
several different factors—time, value of the art, seller and buyer
demands and available resources. The collector should be certain
that the art can be transferred by the seller free of title defects. In
short, what “diligence” is “due” in each transaction will be a product
of the factors involved in the respective transaction.310
These first two functions (assisting claimants searching
for art and assisting purchasers with provenance research) of
305
See supra Part I.C.
The ALR currently charges a $45 fee per search. http://www.artloss.com/
content/searching (last visited Aug. 28, 2007).
307
See, e.g., Thomas, supra note 236.
308
Cf. Charlotte Higgins, The Auction House, the Fashion Designer, and the
$78,000 Refund, THE GUARDIAN, Nov. 8, 2006, at 9 (describing authenticity scandal).
309
Thomas, supra note 236; see generally IFAR Catalogues Raisonnés, supra
note 267.
310
Thomas, supra note 236, at 485. It also should be noted that only recently
have insurers offered title insurance. See Steve Yahn, An Idea Whose Time Has Come?
The Model for Art Ownership Protection: Real-Estate Title Insurance, WALL ST. J.
ONLINE, June 2, 2007, http://online.wsj.com/public/article/SB118074570591822171.html.
306
214
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the proposed title clearinghouse are served to a certain degree
by existing databases, as well as a few organizations such as
the New York State Banking Department’s Holocaust Claims
Processing Office,311 the International Foundation for Art
Research,312 and national bodies assisting claimants in
European countries.313 As such, they are fairly uncontroversial.
More controversial, however, is the third way in which
the Tribunal’s database should be utilized: those already in
possession of art with unexplained gaps in provenance
seemingly related to World War II should be able to register
their art and title should be deemed to pass after a certain
amount of time from registration if no claims are matched to
the artwork.314 As an incentive for registration, only those who
register their artwork should be entitled to repose after a fiveyear period. Pre-war art offered for sale without clearance from
the Tribunal would be suspect.
Establishing a registry and clearinghouse “would have a
positive affect on the market”315 because it would provide the
repose so desperately needed—more so than an arbitral
tribunal alone. Additionally, a nation’s fine arts collectors (and
museums deaccessioning artwork) would benefit because
processing artwork through the Tribunal would render
currently tainted artworks readily saleable on the
international market, which often will bear a significantly
higher price than a strictly domestic market. Thus, the
international agreement establishing the Nazi-Looted Art
Tribunal also should effectuate the call of scholars from the
mid-1990s to create a registry and title clearinghouse. As for
the small window of purchases after the creation of the
Tribunal, and before the claimant registration deadline, a
database search that returns a clean provenance should be a
complete bar to claims filed after the search unless a remainder
claim for the full purchase price can be asserted successfully by
the present-day possessor against the seller.
Without enabling the art market to purge potential
claims, lawsuits for Nazi-looted art will continue to be filed in
311
See Dugot, supra note 7, at 389.
See id.
313
See supra notes 111-120 and accompanying text.
314
Cf. Hawkins et al., supra note 147, at 88-93 (calling for legislative creation
of international art registry). Heirless art held by national museums may need
different treatment. See supra notes 22, 99, 199, 286 and accompanying text.
315
Pell 1999, supra note 10, at 51.
312
2007]
RESOLVING NAZI-LOOTED ART DISPUTES
215
the United States in perpetuity.316 “It has become clear that the
World War II spoliation issues are with the art world for the
long term.”317 Thus, an extraordinary, comprehensive solution
is appropriate. The Nazi-Looted Art Tribunal provides the
appropriate remedy.
CONCLUSION
Since the art reparations movement began in the early
1990s, massive funds have been created to pay claimants for
slave and forced labor, dormant bank accounts, unpaid
insurance policies and other assets. Looted art, however, has
not been met with the same internationally concerted effort to
remedy past injustice. Efforts within individual nations to
research and publicize provenance information also have not
been universally satisfactory. Moreover, the art world seems to
be on the cusp of a possible backlash to restitution of Nazilooted art—with survivors being criticized for auctioning newly
restituted art on the grounds that such sales are harmful to the
public’s interest in enjoying art. Establishing the Nazi-Looted
Art Tribunal would provide the necessary independence to
resolve these claims without emotional attachment to the
artwork interfering with what is just.
Additionally, common law and civil law limitations and
repose doctrines, as well as rights of bona fide purchasers, are
in stark contrast. It seems highly unlikely that national laws
on these issues will change. Thus, litigation in the United
States will be filed in perpetuity, continuing to undermine the
international market in pre-war art. Moreover, widespread
injustice will continue to go unremedied unless the artwork in
question is worth a substantial amount of money and the
claimants are able to locate the art and identify the correct
entity to sue. Establishing the Tribunal would provide justice
while stabilizing the market in pre-war art, and the Tribunal
could be funded in large part by payment of commissions based
on awards.
The complexity and non-uniformity of Nazi-looted art
cases should not be underestimated. A solution that provides
for flexibility is therefore desirable to reach fair decisions in
316
Bazyler & Fitzgerald, supra note 12, at 711-12; Lasserson, supra note 16.
Dugot, supra note 7, at 391; see also Parker, supra note 3, at 693 (stating
that a “binding international agreement” to resolve claims to heirless works would
“bring closure to countries still grappling with displaced Holocaust assets”).
317
216
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light of all circumstances of the case, including the strength
of the looting evidence, the payment of any post-war
compensation, the diligence of the claimant’s post-war search
for the work, the circumstances of the purchase, and the ability
of the purchaser to search for tainted provenance evidence. The
Nazi-Looted Art Tribunal should be created to allow for binding
arbitration in a flexible manner that takes these facts into
account. Moreover, to increase the impact the Tribunal can
have on the market, scholars’ proposals to create stolen art
registries and clearinghouses should be adopted as well. This
proposal is not inexpensive, but allowing for commissions on
restitutions will help decrease the cost while prompting nations
to fulfill the promises made in Washington and Vilnius.
Unlike the works of earlier scholars, this Article
proposes that use of the registry, clearinghouse, and Tribunal
should be mandatory, not optional, for claimants and
purchasers. Considering all of the options available, a
mandatory forum would likely generate the most participation
by both the survivor and art communities—and only
widespread participation can calm the present instability in
the market for pre-war art. Moreover, in light of the
effectiveness of past mass notice campaigns, notice is
achievable, and a mandatory forum would be fair.
As this Article draws heavily from the work of Owen
Pell, an early proponent of a Nazi-looted art commission, it
seems appropriate to conclude with his words spoken almost
ten years ago:
A mediation or arbitration commission designed to create a property
registration system with binding legal effect and to resolve disputes
relating to title, formed pursuant to treaty or some other form of
collective State action would provide the surest, most efficient and
most consistent way under international law to resolve claims
relating to art works looted or stolen during World War II. This
approach is particularly appropriate now, in light of the strong
consensus that has emerged for an organized, just and fair
resolution of the Holocaust-looted art problem.318
318
Pell 1999, supra note 10, at 28.
The Crucible,
Harvard’s Secret Court, and
Homophobic Witch Hunts
Amy D. Ronner†
INTRODUCTION
In Arthur Miller’s The Crucible, Danforth, chief jurist in
the Salem witch trials, admonishes:
But you must understand, sir, that a person is either with this court
or he must be counted against it, there be no road between. This is a
sharp time, now, a precise time—we live no longer in the dusky
afternoon when evil mixed itself with good and befuddled the world.
Now, by God’s grace, the shining sun is up, and them that fear not
light will surely praise it. I hope you will be one of those.1
Judge Danforth fanatically heeds a view of the world as tidily
partitioned into deific benevolence and diabolical evil. At the
end of the play, triumphant Danforth, in the name of absolute
morality, executes John Proctor, Rebecca Nurse, and other
innocent people.
Although Miller’s tragedy occurs in seventeenth-century
Salem, it is also intended to be a critique of the atrocities
committed by Miller’s contemporaries. In the 1950s, when the
†
Professor of Law, St. Thomas University School of Law. J.D., 1985,
University of Miami; Ph.D. (English Language and Literature), 1980, University of
Michigan; M.A., 1976, University of Michigan; B.A., 1975, Beloit College. I dedicate
this Article to Brett Barfield to thank him for having been my special student, for
becoming such a superb lawyer and loving father, and for continuing to be my loyal
friend. I also would like to thank John Hernandez for giving me a copy of William
Wright’s Harvard’s Secret Court and for nagging me to read it. I would also like to
thank not only my research assistant, Elizabeth Matherne, for her patience and
dedication, but also my mentor, Professor Bruce Winick, for helping me integrate
therapeutic jurisprudence into my thought process. Most importantly, I thank the love
of my life, my husband, Michael P. Pacin, M.D., who not only encourages and supports
all of my endeavors, but also respects all of the time I spend behind closed doors
writing.
1
Arthur Miller, The Crucible, reprinted in THE CRUCIBLE: TEXT AND
CRITICISM 94 (Gerald Weales ed., Penguin Books 1996) (1953) [hereinafter Miller, The
Crucible; subsequent citations to this collection (hereinafter WEALES ANTHOLOGY) refer
to the pagination therein].
217
252
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Court and also for the Secret Court as fused law, morality, and
religion, with Roberts and his gay “conspirators” as criminal
sinners, charged and convicted of Satanic acts. While those
accused at Harvard are not Salem’s naked girls gyrating in the
forbidden woods, they are, as men loving other men in the
unlicensed bacchanalia of Roberts’ pad, just as seemingly lifethreatening.
As discussed above, another stereotype that the Secret
Court and the Bowers Court endorsed is an equation of
homosexuality with a vile, contagious illness.191 They also
shared an irrational belief that homosexuals are actively
seeking to infect others. For the Harvard judges, Roberts
epitomized the view of the homosexual as the propagator of the
same-sex orientation bug:
[T]he judges had come to believe that Roberts was not just guilty of
homosexual acts himself: he was a diligent proselytizer and had
corrupted many students into the despicable practices. They saw
him as an agent of evil on the Harvard campus, a spreader of
insidious contagion. They had no choice but to deal severely and
promptly with their primary adversary, a student who was working
as hard to promote homosexuality as they were to eliminate it.192
The court saw Roberts not just as the leader of some
cult hungry for disciples, but also as the symbol of a lifestyle
antithetical to marriage or family.193 The same view existed in
the Bowers decision and its homophobic progeny, which
fostered the notion that gay men lack stable relationships,
parlay from partner to partner, party to party, boudoir to
boudoir, and immerse themselves in an ongoing orgy.194 As such
(1993) (The Bowers Court portrays “sodomy as transhistorically stable and identical to
homosexual identity.”).
191
See RONNER, supra note 15, at 4-5 (discussing the treatment of
“homosexuality as some kind of dreaded plague that must be extinguished before it
spread[s]” and “the related, irrational belief that homosexuals are converters seeking
disciples”); see also Amy D. Ronner, Scouting for Intolerance: The Dale Court’s
Resurrection of the Medieval Leper, 11 LAW & SEXUALITY 53, 54-55 (2002) (discussing
the connection between the legislative and judicial condemnation of homosexuality and
the irrational laws mandating the isolation of those afflicted with Hansen’s disease
(leprosy) in the Middle Ages).
192
WRIGHT, supra note 14, at 112.
193
See Ronner, The Lesbian Mother, supra note 186, at 356 (“What
exacerbates the image of the dangerous malum in se criminal is its coexistence with
another separate judicial tendency, the refusal to attribute familial attributes to the
homosexual household.”).
194
See High Tech Gays v. Defense Indus. Sec. Clearance Office, 668 F. Supp.
1361, 1369 (N.D. Cal. 1987), rev’d in part, vacated in part, 895 F.2d 563 (9th Cir. 1990)
(“Many people erroneously believe that the sexual experience of lesbians and gay men
represents the gratification of purely prurient interests, not the expression of mutual
NOTES
Applying United States v. Stein to
New York’s Indigent Defense Crisis
SHOW THE POOR SOME LOVE TOO
I.
INTRODUCTION
Visualize for a moment that you are a criminal defense
attorney at the Legal Aid Society and represent indigent
defendants in Queens, New York.1 Despite the fact that you
currently are more than busy working sixty to seventy hours
per week2 to manage your open caseload representing 100
defendants, forty-five of whom have been indicted for felonies,3
your supervisor hands you a file to represent yet another client.
Your new client, Francisco Rodriguez, has been accused of
robbing an elderly lady in a busy part of town. Unfortunately,
because of your overwhelmingly demanding schedule, you are
unable to approach Francisco until the day of his first court
1
“Each year, the [Criminal Practice of the Legal Aid Society of New York]
represents clients in approximately 220,000 indigent criminal cases in trial, appellate
and parole revocation proceedings and serves as the primary public defender in New
York City. The Criminal Practice handles criminal cases at the trial level, ranging in
seriousness from disorderly conduct to non-capital first degree murder.” The Legal Aid
Society Criminal Practice, http://www.legal-aid.org/en/whatwedo/criminalpractice.aspx
(last visited Nov. 7, 2007).
2
Public defenders in Monroe County, New York, report that on average they
work sixty to seventy hours per week, including nights and weekends. THE
SPANGENBERG GROUP, STATUS OF INDIGENT DEFENSE IN NEW YORK: A STUDY FOR
CHIEF JUDGE KAYE’S COMMISSION 46 (June 16, 2006), available at
http://www.courts.state.ny.us/ip/indigentdefensecommission/
SpangenbergGroupReport.pdf [hereinafter SPANGENBERG REPORT].
3
In Queens, attorneys at the Legal Aid Criminal Defense Division have on
average an open caseload of 90-100 cases. This is in line with the average caseloads of
attorneys with other Divisions in New York City, such as Brooklyn and the Bronx.
SPANGENBERG REPORT, supra note 2, at 131.
299
2007]
U.S. V. STEIN AND INDIGENT DEFENSE
331
criminal proceeding outweighs the state’s interest in
effectuating fewer cases.193
Finally, a third legitimate state interest put forth to
justify the prosecutors’ conduct is the desire to simultaneously
prosecute and deter crime, effectively punishing the accused
by making the criminal process as difficult and as trying
as possible. However, under Judge Kaplan’s rationale, any
government conduct having the purpose of punishing the
defendant before that defendant is found guilty is analogous to
the federal prosecutors’ unconstitutional use of the Thompson
Memorandum as a mechanism to punish the accused.194 Such a
desire is an impermissible “abuse of power” that does not pass
a strict scrutiny analysis.
Even if the government’s goal is the efficient
prosecution of crime without any desire of punishment,
common sense dictates that under strict scrutiny analysis, the
most narrowly tailored approach to put those who commit
crimes behind bars is to do so with as great a degree of
accuracy as possible, ensuring that those who plead guilty are
in fact guilty. Violating ethical standards that have been put in
place by both the ABA and the New York State Disciplinary
Board does not most narrowly accomplish this objective.195
Despite the presumption of innocence that is the credo
in the United States, an indigent defendant who has a criminal
background and who faces potentially biased witnesses, a
potentially biased jury, and counsel who lacks the time or
resources necessary to investigate the credibility of those
witnesses might reasonably believe that the cards are stacked
so high against him that the best strategy is to plead guilty to a
lesser sentence despite his innocence.196 Nevertheless, if state
prosecutors were made to be more forthcoming in their
discovery disclosure procedures, an indigent’s counsel might
learn important information, such as evidence concerning a
193
See E. Donald Shapiro et al., The DNA Paternity Test: Legislating the
Future Paternity Action, 7 J.L. & HEALTH 1, 42 (1992-93) (“[I]ntermediate judicial
scrutiny is enacted . . . so that a needless waste of resources is avoided.”) (emphasis
added).
194
See supra note 147 and accompanying text.
195
See supra note 48 and accompanying text.
196
As stated earlier, agreeing to a plea bargain under such dire
circumstances, where the defendant does not have access to various forms of material
information cannot truly be considered “voluntary.” See supra notes 117-122 and
accompanying text.
336
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the restrictive Rosario rule currently allows.219 In fact, an
excellent model for discovery rules that are more in line with
current ethical standards is located just across the river—the
state of New Jersey’s criminal procedure law, which, for
example, compels mandatory discovery at the time of a pretrial plea offer.220
Such mandatory discovery rules meet the ABA’s
recommendations of providing for discovery at an earlier stage
of the criminal proceeding.221 Such rules would also mitigate
the inequitable differences between the prosecution and public
defenders.222 Regardless of the specifics of the rules ultimately
settled upon, if a judge following United States v. Stein has the
vision to create a new set of criminal discovery laws that
comport with Judge Kaplan’s notions of fairness under the
Fifth and Sixth Amendments of the Constitution, indigents
such as Francisco Rodriguez will finally have the opportunity
to get a fair shake.
Marc Sackin†
219
See supra notes 44-47.
See N.J. CT. R. 3:13-3(a) (2003) (“Where the prosecutor has made a preindictment plea offer, the prosecutor shall upon request permit defense counsel to
inspect and copy or photograph any relevant material which would be discoverable
following an indictment . . . .”); see also N.J. CT. R. 3:13-3(c)(6) (“The prosecutor shall
permit defendant to inspect and copy or photograph . . . names and addresses of any
persons whom the prosecutor knows to have relevant evidence or information including
a designation by the prosecutor as to which of those persons may be called as
witnesses.”).
221
See ABA STANDARDS, supra note 43, Standard 11-4.1(a).
222
See ABA STANDARDS, supra note 43, Standard 11.1.1(a)(v).
†
B.A., University of Michigan, 2003; J.D. candidate, Brooklyn Law School,
2008. Thanks to everyone at the Brooklyn Law Review for their endless efforts. Special
thanks to Stuart and Sharon Sackin, and especially Erin Hendriks, for their love and
support.
220
Jurisdictional Donnybrook
DECIPHERING WETLANDS
JURISDICTION AFTER RAPANOS
I.
INTRODUCTION
Over the past decade, a multitude of appellate courts
have debated the precise boundaries of the Army Corps of
Engineers’ (“Corps”) jurisdiction to enforce the Clean Water Act
(“CWA”).1 This debate recently culminated with the Supreme
Court addressing the issue of the Corps’ wetlands jurisdiction
for the third time in the CWA’s thirty-year history.2 In Rapanos
v. United States, a split decision and the subject of this Note,
the Supreme Court presented three tests for determining
wetlands jurisdiction under the CWA, but no test commanded a
majority of justices’ approval.3 This Note will argue that the
Rapanos court should have applied the agency deference
approach—upholding an agency’s construction of a statute so
long as the construction was reasonable4—to determine the
appropriateness of the Corps’ jurisdiction over the property at
issue. This Note will further argue that all courts addressing
the appropriateness of the Corps’ wetlands jurisdiction should
implement this approach.
1
See United States v. Phillips, 367 F.3d 846, 849 (9th Cir. 2004); In re
Needham, 354 F.3d 340, 343 (5th Cir. 2003); Tracey v. Newdunn Assocs., LLP., 344
F.3d 407, 408 (4th Cir. 2003); United States v. Rueth Dev. Co., 335 F.3d 598, 600 (7th
Cir. 2003); United States v. Deaton, 332 F.3d 698, 699 (4th Cir. 2003); United States v.
Krilich, 303 F.3d 784, 785 (7th Cir. 2002); United States v. Interstate Gen. Co., No. 014513, 2002 WL 1421411, at *1-2 (4th Cir. July 2, 2002); Rice v. Harken Exploration
Co., 250 F.3d 264, 264 (5th Cir. 2001); Headwaters, Inc. v. Talent Irrigation Dist., 243
F.3d 526, 527 (9th Cir. 2001).
2
See Rapanos v. United States, 126 S. Ct. 2208, 2208 (2006); Solid Waste
Agency of N. Cook County v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159, 159
(2001).
3
See Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring); see also id. at
2265 (Stevens, J., dissenting) (arguing that the courts on remand should reinstate the
judgments if either the “significant nexus” or plurality test is met).
4
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984) (“[T]he question for the court is whether the agency’s [interpretation] is based
on a permissible construction of the statute.”).
337
338
BROOKLYN LAW REVIEW
[Vol. 73:1
The source of the Corps’ jurisdiction over wetlands is
the CWA. The CWA provides that the Corps may issue permits
for the discharge of pollutants or fill material into “navigable
waters,”5 and further defines “navigable waters” as “waters of
the United States.”6 While Congress left “waters of the United
States” undefined within the CWA, it evinced an intent that
jurisdiction under the CWA be “the broadest constitutional
interpretation.”7 In response, courts construed the definition of
“navigable waters” broadly to include waters that are not
actually navigable in the traditional sense.8 Under this logic,
the Corps issued a regulation defining “waters of the United
States” to include waters used in foreign or interstate
commerce; all interstate waters and wetlands; intrastate lakes,
rivers, and streams; tributaries;9 and wetlands adjacent to any
of these waters (“adjacent wetlands”).10 Unlike other features
5
The statute reads:
(a) Discharge into navigable waters at specified disposal sites.
The Secretary may issue permits, after notice and opportunity for public
hearings for the discharge of dredged or fill material into the navigable
waters at specified disposal sites. Not later than the fifteenth day after the
date an applicant submits all the information required to complete an
application for a permit under this subsection, the Secretary shall publish the
notice required by this subsection.
33 U.S.C. § 1344(a) (2000).
6
“The term ‘navigable waters’ means the waters of the United States,
including the territorial seas.” 33 U.S.C. § 1362(7) (2000).
7
S. REP. NO. 92-1236, at 144 (1972) (Conf. Rep.), as reprinted in 1972
U.S.C.C.A.N. 3776, at 3822.
8
See Int’l Paper Co. v. Oulette, 479 U.S. 481, 486 n.6 (1987).
9
The term “tributary” is left undefined by the Code of Federal Regulations
and the CWA, but is generally understood to mean “[a] stream flowing directly or
indirectly into [a body of water].” BLACK’S LAW DICTIONARY 1545 (8th ed. 2004).
10
33 C.F.R. § 328.3 (2006). For the purpose of this regulation,
(a) The term waters of the United States means
(1) All waters which are currently used, or were used in the past, or may be
susceptible to use in interstate or foreign commerce, including all waters
which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes . . . ;
(4) All impoundments of water otherwise defined as waters of the United
States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1) through (4) of this
section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (a)(1) through (6) of this section.
2007]
WETLANDS JURISDICTION AFTER RAPANOS
339
mentioned in this regulation, wetlands are constantly changing
eco-systems, which may be wet for only part of the year.11
Therefore, some wetlands are difficult to designate as within
the Corps’ jurisdiction because these wetlands may not be
adjacent to another “water of the United States” for an entire
year.12
In Rapanos, the Supreme Court reversed the Sixth
Circuit’s decisions in two consolidated cases that had upheld
the Corps’ jurisdiction to deny permits to two parties wishing
to build on privately owned wetlands.13 The plurality decision
to remand the case produced three conflicting positions for
assessing the Corps’ right to regulate private wetlands and,
thus, the propriety of the Corps’ definition of “waters of the
United States.”14 First, in the plurality opinion, Justice Scalia
limited his interpretation of “waters of the United States” to
waters that are relatively permanent, standing, or flowing
bodies, and restricted adjacent wetlands covered by the CWA to
those wetlands with a continuous surface connection to “waters
of the United States.”15 Second, Justice Kennedy’s concurring
opinion proposed that a significant nexus must be satisfied
33 C.F.R. § 328.3 (2006).
11
U.S. Environmental Protection Agency, What Are Wetlands?,
http://www.epa.gov/owow/wetlands/vital/what.html [hereinafter What Are Wetlands?].
Wetlands are a vanishing element of the global ecological community yet the definition
of wetlands is so technical that reasonable minds differ on what it is they wish to
protect. One legal definition of wetlands requires soil covered by water for all or part of
the year. Wetlands, however, cannot be determined through a legal test, as these
features are eco-systems, which are more extensive than their component parts. Like
coral reefs and rainforests, wetlands support a variety of plant and animal life forms.
Both aquatic and terrestrial creatures live on wetlands depending upon whether the
region consists of coastal or inland wetlands. Id. Skeptics who refer to wetlands as
isolated, disease-ridden swamps overlook their value in contributing water
purification, water storage, flood prevention, erosion control, timber production,
recreation, and several other natural products to the surrounding environment and
human society. U.S. Environmental Protection Agency, Wetlands and People,
http://www.epa.gov/owow/wetlands/vital/people.html.
Wetlands vary tremendously between coastal and inland regions. Coastal
regions often consist of a mix between salt and fresh water and are located on the
Atlantic, Pacific, and Gulf coasts. What Are Wetlands?, supra. Many parts of these
regions are unvegetated because the salt water extinguishes the lives of the plants. On
the other hand, inland wetlands are almost entirely freshwater and are located near
moving bodies of water on floodplains. These wetlands frequently involve groundwater
or precipitation reaching the surface on a seasonal basis. In some cases, the ground
may be wet for only a few months per year. Id.
12
What Are Wetlands?, supra note 11.
13
Rapanos, 126 S. Ct. at 2235.
14
See id. at 2215, 2236 (Kennedy, J., concurring), 2252 (Stevens, J.,
dissenting).
15
Id. at 2221, 2226.
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between the wetlands at issue and navigable-in-fact waters to
confer jurisdiction under the CWA, and provided several
factors for determining which wetlands had this nexus.16
Finally, Justice Stevens—joined by three dissenting justices—
advocated deference to the Corps’ jurisdiction, so long as its
interpretation of the CWA was reasonable.17 In response to
Rapanos, several courts have applied Kennedy’s significant
nexus test with reservation.18 A few courts have declared this
test too ambiguous, and have chosen instead to use their own
precedent on a case-by-case basis.19 As a result, the precise
boundaries of the Corps’ jurisdiction under the CWA remain
unclear.20
This Note will argue that Justice Stevens’ agency
deference approach provides the correct standard for
examining the Corps’ jurisdiction under the CWA and that the
plurality and significant nexus tests advocated in Rapanos by
Justices Scalia and Kennedy, respectively, inappropriately
impose unnecessary judicial constraints on the Corps. While
the plurality test provides a plausible definition of the phrase
“waters of the United States,” this definition fails to recognize
the Corps’ administrative role in construing the statute, the
CWA’s thirty-year history of legislative and judicial precedent,
and the harmful effects that this definition would impose on
the environment through its practice. The significant nexus
test, in contrast, recognizes the importance of the CWA’s
thirty-year history and purpose of environmental protection,
but the concept of a “significant nexus” in practice would lead
to disparate outcomes and uncertainty for private property
16
Id. at 2248 (Kennedy, J., concurring). “Navigable in fact” refers to waters
considered navigable in the traditional sense of capability for interstate commerce. The
Daniel Ball, 77 U.S. 557, 563 (1870). The factors suggested by Kennedy consisted of
“the statute’s goals and purposes. . . . [o ‘restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.’” Rapanos, 126 S. Ct. at 2248 (Kennedy,
J., concurring) (quoting 33 U.S.C. § 1251(a) (2000)).
17
Rapanos, 126 S. Ct. at 2252 (Kennedy, J., concurring).
18
United States v. Johnson, 467 F.3d 56, 59 (1st Cir. 2006); N. Cal. River
Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007), superseding 457
F.3d 1023 (9th Cir. 2006); United States v. Cundiff, 480 F. Supp. 2d 940, 943 (W.D. Ky.
2007); United States v. Fabian, No. 2:02-CV-495, 2007 WL 1035078, at *14-15 (N.D.
Ind. Mar. 29, 2007); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 824
(N.D. Cal. 2007); United States v. Evans, No. 3:05 CR 159 J 32HTS, 2006 WL 2221629,
at *20-21 (M.D. Fla. Aug. 2, 2006).
19
E.g., United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613
(N.D. Tex. 2006); see also United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25
(7th Cir. 2006) (discussing the limitations of applying Rapanos).
20
See Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring).
2007]
WETLANDS JURISDICTION AFTER RAPANOS
341
owners and the government. Unlike these two previous tests,
the agency deference approach allows the Corps to further the
purposes and history of the CWA within its discretion and
provides for courts to intervene to enjoin an unreasonable
construction. In suggesting that the Rapanos Court reached an
improper result, this Note argues that agency deference should
be applied to the Corps’ jurisdiction over the property at issue
in that case, and, by extension, to all cases concerning the
Corps’ ability to regulate wetlands regardless of the presence or
absence of any surface connection to “waters of the United
States.”
Part II will describe the history behind the CWA and its
deference to the Corps on rule-making. Part III will then
demonstrate that the reasoning embodied in the plurality test
is not only flawed and strained, but also inconsistent with prior
Supreme Court precedent, CWA legislative history, and the
purposes of environmental protection behind the CWA. Next,
Part IV will contend that the significant nexus test
misinterprets relevant precedent and thwarts the interests of
both private property owners and the government. Finally,
Part V will argue that the agency deference position correctly
provides reasonable boundaries to the Corps’ jurisdiction
because the CWA’s structure, purpose, and thirty-year history
of jurisprudence—along with the strong policies of
administrative
efficiency,
economic
concerns,
and
environmental protection—trump the whims of individual
property owners.
II.
THE HISTORY BEHIND THE WETLANDS
JURISDICTION ISSUE
A.
The Clean Water Act
In 1972, Congress passed the CWA after a disastrous
pair of decades.21 Over the previous twenty years, Congress had
left water pollution regulation mostly to the states, and the
states had failed to adequately enforce any uniform policy
against interstate water pollution.22 This local experiment
21
S. REP. NO. 92-414, at 1-2 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3672.
22
Id. The states actually had full power over enforcement until 1956, when
Congress authorized federal grants to be issued for pollution control and to help build
treatment plants. Id. This federal assistance through grants could not adequately
satisfy the needs of states, so Congress attempted to provide more federal support by
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resulted in several environmental disasters of the late 1960s
and early 1970s, which garnered national and congressional
attention.23 In response, Congress enacted the CWA.24 Through
the CWA, Congress sought to ameliorate concerns of future
disasters by attempting “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.”25 As
the Supreme Court recognized, Congress saw the need for the
federal government to regulate water pollution because it
believed controlling the discharge of toxins into water at the
source would prevent them from traveling great distances
through the natural water system.26
creating a new federal agency in 1966 and adopting amendments in 1970 to add new
areas of federal liability. Id. at 1, 1972 U.S.C.C.A.N. at 3669-70.
23
The most famous of these events was the Cuyahoga River catching fire due
to excessive pollution in 1969, discussed infra note 25. EPA, A BENEFITS ASSESSMENT
OF THE WATER POLLUTION CONTROL PROGRAMS SINCE 1972, 1-2 (2000), available at
http://yosemite.epa.gov/ee/epa/eermfile.nsf/Attachment+Names/EE-0429-01.pdf/$File/EE
-0429-01.pdf?OpenElement [hereinafter BENEFITS ASSESSMENT]. In addition, a 1971
senate report noted that there was only one litigated case in the previous twenty years
under the abatement procedure of the Federal Water Pollution Control Act. See S. REP.
NO. 92-414, at 5 (1971); as reprinted in 1972 U.S.C.C.A.N. 3668, 3672. In that case,
more than four years elapsed between the initial conference and the consent decree,
while more than five million tons of raw sewage was being dumped into a midwestern
city’s river each day. Id.
In 1970, the Senate Subcommittee on Air and Water Pollution spent
fourteen days conducting public hearings on water pollution abatement and control.
S. REP. NO. 92-414, at 3-4 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3670. These
hearings culminated in eighteen Senate bills on water pollution, four of which
recommended amendments to the current law on construction grants, standard setting,
and enforcement. The Subcommittee, however, was too busy in 1970 developing the
Clean Air Act, so the actual drafting of the CWA was postponed until the 95th
Congress could take up the issue. BENEFITS ASSESSMENT, supra, at 1-1, 1-2.
24
See What Are Wetlands?, supra note 11.
25
33 U.S.C. § 1251(a). In addition, the CWA’s passage in 1972 evidenced a
broad purpose to reduce and eliminate pollution, create a new federal regime to
supplant the state administration system, and respond to several environmental
events garnering public attention. Rapanos, 126 S. Ct. at 2265 (Stevens J., dissenting)
(citing BENEFITS ASSESSMENT, supra note 23). The EPA’s assessment discusses the
act’s provision regarding elimination of pollution discharges by 1985, and it cites the
improvements along the Cuyahoga River as benefits reversing the trend of
industrialization that led to the river catching fire in 1969. Id. at 1-1, 1-2.
26
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985)
(citing S. REP. NO. 92-414, at 1-2 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3742) (“Water moves in hydrologic cycles and it is essential that discharge of pollutants
be controlled at the source.”). The hydrologic cycle, also known as the
water cycle, generally “describes the continuous movement of water on, above, and
below the surface of the Earth.” U.S. Geological Survey, The Water Cycle,
http://ga.water.usgs.gov/edu/watercycle.html (last visited Oct. 3, 2007). As this term
describes a literal cycle, it refers to water in all three of its states: liquid, vapor, and
ice. Id.
2007]
B.
WETLANDS JURISDICTION AFTER RAPANOS
343
The Army Corps of Engineers and the Clean Water Act
The Corps’ enforcement of the CWA profoundly reversed
a progressive loss of wetlands. At the time Congress enacted
the CWA, annual wetlands loss was about 500,000 acres per
year.27 Since that time, the annual wetlands loss has become a
slight annual gain in recent years.28 The Corps accomplished
this reversal through Section 404 of the CWA.29 The Section
404 program requires property owners to obtain a permit from
the Corps if they plan to carry out activities involving disposal
of dredged or fill materials into “waters of the United States.”30
While the EPA and other agencies31 play different roles in the
Section 404 program, the Corps is the sole administrative
agency with jurisdiction to issue permits.32 The Corps broadly
27
JEFFREY A. ZINN & CLAUDIA COPELAND, CRS REP. NO. RL33483,
WETLANDS: AN OVERVIEW OF ISSUES, at 5 (June 20, 2006) (on file with author), updated
version available at http://www.cnie.org/nle/crs/abstract.cfm?NLEid=1647 (July 26,
2007) [hereinafter ZINN & COPELAND I]. When European explorers landed in North
America in the seventeenth century, over 220 million acres of wetlands existed in the
lower forty-eight states. Id.; see also EPA, Wetlands: Status and Trends,
http://www.epa.gov/owow/wetlands/vital/status.html. Three centuries later, less than
fifty percent of these lands remained. Id.
28
The U.S. Fish and Wildlife Service (“FWS”) estimates this annual gain to
be about 32,000 acres per year between 1998 and 2004. ZINN & COPELAND I, supra note
27. Several environmentalists, however, dispute the gains in acreage as flawed data
representing the expansion and development of small private ponds, instead of natural
wetlands. Id. The FWS estimates 105.5 million acres remain in the forty-eight
contiguous states. Alaska currently encompasses an additional estimated 170-200
million acres of wetlands. EPA, Wetlands: Status and Trends, supra note 27. Louisiana
suffers 80% of the total loss of coastal wetlands in the United States and has recently
become a focus of potentially $14 billion in wetlands restoration legislation proposed
since the devastation of Hurricane Katrina. JEFFREY A. ZINN & CLAUDIA COPELAND,
CRS ISSUE BRIEF NO. IB97014, WETLAND ISSUES (Aug. 7, 2001), available at
http://www.ncseonline.org/NLE/CRSreports/Wetlands/wet-5.cfm [hereinafter ZINN &
COPELAND II]. The Gulf of Mexico Energy Security Act, introduced by United States
Senator Mary Landrieu of Louisiana, would provide revenues from new oil and gas
production in the Gulf of Mexico in part to benefit coastal restoration along the
shorelines of Louisiana, Mississippi, Alabama, and Texas. N.Y. Times Reverses Stand
on LA’s Sen. Mary Landrieu Oil Royalty Bill, NEW ORLEANS CITYBUSINESS, Oct. 30,
2006.
29
ZINN & COPELAND I, supra note 27, at 6.
30
Id. “Waters of the United States” refers to the terms of 33 U.S.C. § 1362(7),
which defines “navigable waters” as “waters of the United States.” 33 U.S.C. § 1362(7).
The Corps’ authority to regulate dredging and filling derives from and relates back to
its jurisdiction to enforce the River and Harbors Act of 1899. ZINN & COPELAND I, supra
note 27, at 6. If a state’s governor wishes the state to implement its own permit
program in lieu of the Corps’, the governor must submit to the Administrator of the
EPA a description of the proposed state program. 33 U.S.C. § 1344(g)(1).
31
Most notably, the FWS, the Natural Resources Conservation Service, and
the National Marine Fisheries Service (“NMFS”) also administer portions of Section
404. ZINN & COPELAND I, supra note 27, at 6.
32
Id.
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defines this jurisdiction to include waters used in foreign or
interstate commerce; all interstate waters and wetlands;
intrastate lakes, rivers, and streams; tributaries;33 and
wetlands adjacent to any of these waters.34 Congress’
subsequent refusal to amend the CWA suggests its intent for
the Corps’ jurisdiction to remain broad.35
C.
The Congressional Acquiescence of 1977
In 1977, Congress considered amending the CWA
because critics of the Section 404 program had claimed that the
Corps overreached its authority to regulate wetlands not
“navigable-in-fact.”36 In the House, the Committee on Public
Works and Transportation reported a bill that limited the
Corps’ jurisdiction to navigable-in-fact waters.37 By contrast,
the Senate bill out of committee38 included only minor specific
exemptions from the Corps’ authority with no direct limit on
jurisdiction.39 Ultimately, after much debate, the Joint
Conference Committee acquiesced and allowed the broader
33
The term “tributaries” is left undefined by the regulations and the CWA,
but “tributaries” is generally understood to mean “a stream flowing into [a body of
water].” BLACK’S LAW DICTIONARY 1545 (8th ed. 2004).
34
33 C.F.R. § 328.3. For the relevant text, see supra note 10.
35
See discussion infra Part II.C.
36
United States v. Riverside Bayview Homes, 474 U.S. 121, 135-36 (1985)
(citing H.R. REP. NO. 95-139, at 1-2 (1977)). Many of these critics were actually from
farm, forestry, and land development groups that pressured Congress to amend the
CWA so that they would not have to apply to the Corps for permits to develop certain
types of lands. See, e.g., United States v. Pozsgai, 999 F.2d 729, 729-30 (3d Cir. 1993);
Avoyelles Sportsmen’s League, Inc. v. Alexander, 511 F. Supp. 278, 288 (W.D. La.
1981).
“Navigable-in-fact” refers to waters considered navigable in the traditional
sense of capability for interstate commerce. Once, the standard for wetlands
jurisdiction depended on whether a body of water was “navigable-in-fact.” The Daniel
Ball, 77 U.S. 557, 563 (1870) (“Those rivers must be regarded as navigable rivers in law
which are navigable in fact.”) The Daniel Ball court further held that “navigable in
fact” waters were those capable of being used as “highways for commerce, over which
trade and travel are or may be conducted.” Id. When the focus of environmental
regulation changed from promoting navigability to reducing pollutants, however, the
navigability requirement was dropped with the creation of the CWA. ZINN & COPELAND
I, supra note 27, at 6.
37
H.R. 3199, 95th Cong., at 80-81, 102-04 (1977) (cited in Riverside Bayview,
474 U.S. at 136).
38
The Senate committee reporting this legislation was the Senate Committee
on Environment and Public Works. Riverside Bayview, 474 U.S. at 136.
39
See generally S. 1952, 95th Cong., at 63-76 (1977) (cited in Riverside
Bayview, 474 U.S. at 136). In the Senate, the narrow House definition was defeated in
favor of the older definition. Riverside Bayview, 474 U.S. at 136-37.
2007]
WETLANDS JURISDICTION AFTER RAPANOS
345
construction of “navigable waters” to endure.40 Since this
acquiescence, Congress has not reconsidered limiting the
Corps’ jurisdiction.41
D.
The History of Agency Deference
If a party challenges the Corps’ jurisdiction, courts
traditionally use agency deference as the standard of review.
This standard derives from Chevron v. Natural Resources
Defense Council.42 Under the agency deference approach, also
known as Chevron deference, a court must first ask if Congress
has expressed its intent on the issue.43 If Congress’ intent
is not clear, the court should not try to create its own
interpretation of the statute.44 Instead, the court must
determine whether the agency’s construction of the statute was
reasonable.45 Since Chevron, courts have utilized agency
deference to resolve countless issues relating to administrative
agencies’ jurisdiction.46 Thus, courts have typically used agency
40
Riverside Bayview, 474 U.S. at 136-37. Senator Baker even remarked that
the CWA “retain[ed] the comprehensive jurisdiction over the Nation’s waters exercised
in the 1972 Federal Water Pollution Control Act.” Id. (citing 123 CONG. REC. 39209
(1977)); see also 123 CONG. REC. 38950-39210. The CWA is also known as the Federal
Water Pollution Control Act. Brian Knutsen, Asserting Clean Water Act Jurisdiction
Over Isolated Waters: What Happens After the SWANCC Decision, 10 ALB. L. ENVTL.
OUTLOOK 155, 157 (2005).
41
See 33 U.S.C. §§ 1344(a), 1362(7) (2000); see also 33 C.F.R. 328.3 (2006).
42
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). In
Chevron, the large oil company sought review of a D.C. Circuit decision that upheld a
Natural Resources Defense Council (“NRDC”) challenge to the EPA regulations of the
Clean Air Act. Id. at 844. In a 6-0 decision, the Supreme Court held the EPA
regulations should be upheld as a permissible construction of the Clean Air Act. Id. at
866.
43
“First, always, is the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43.
44
“If . . . the court determines Congress has not directly addressed the
precise question at issue, the court does not simply impose its own construction on the
statute, as would be necessary in the absence of an administrative interpretation.” Id.
at 843.
45
“Rather, if the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id.
46
See Chem. Mfrs. Ass’n. v. NRDC, 470 U.S. 116, 125 (1985); Train v. NRDC,
421 U.S. 60, 75, 87 (1975); Piney Run Pres. Ass’n v. County Comm’rs of Carroll County,
Md., 268 F.3d 255, 267 (4th Cir. 2001); United States v. Pozsgai, 999 F.2d 719, 729 (3d
Cir. 1993).
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deference as the standard to resolve issues regarding the
Corps’ and the EPA’s jurisdiction.47
E.
Pre-Rapanos Jurisprudence
Between the congressional acquiescence in 1977 and the
Rapanos decision, the Supreme Court addressed the issue of
the Corps’ jurisdiction twice: in United States v. Riverside
Bayview Homes (“Riverside Bayview”)48 and in Solid Waste
Agency of Northern Cook County v. United States Army Corps
of Engineers (“SWANCC”).49 In Riverside Bayview, the Corps
sought to enjoin the filling of property on what the Corps’ own
regulation defined as an “adjacent wetland.”50 The Sixth Circuit
narrowly construed the Corps’ jurisdiction over adjacent
wetlands to exclude “wetlands that were not subject to flooding
by adjacent navigable waters at a frequency sufficient to
support the growth of aquatic vegetation.”51 Reversing the
Sixth Circuit, the Supreme Court used agency deference to hold
that the legislative history and environmental policy behind
the CWA commanded a broad interpretation of the Corps’
powers.52 The Riverside Bayview Court did not attempt to
47
“Accordingly, our review is limited to the question whether it is reasonable,
in light of the language, policies, and legislative history of the Act for the Corps to
exercise jurisdiction over [adjacent wetlands].” United States v. Riverside Bayview
Homes, 474 U.S. 121, 131 (1985).
This view of the agency charged with administering the statute is entitled to
considerable deference; and to sustain it, we need not find that it is the only
permissible construction that EPA might have adopted but only that EPA’s
understanding of this very ‘complex statute’ is a sufficiently rational one to
preclude a court from substituting its judgment for that of EPA.
Chem. Mfrs. Ass’n, 470 U.S. at 125.
48
Riverside Bayview, 474 U.S. at 126.
49
SWANCC, 531 U.S. 159, 176-77 (2001).
50
Riverside Bayview, 474 U.S. at 124. The Corps’ regulation provided “[t]he
term ‘wetlands’ means those areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions.” 33 C.F.R. § 323.2(c) (1978). The Corps had sued a developer
in District Court to enjoin its construction of a housing development on wetlands,
which were inundated with ground water. Riverside Bayview, 474 U.S. at 124, 130-31.
The District Court had granted the relief sought by the Corps, but the Sixth Circuit
reversed, and the Corps petitioned the United States Supreme Court. Id. at 125.
51
Riverside Bayview, 474 U.S. at 125. The Sixth Circuit’s holding that a
narrow construction must apply to the Corps’ authority under the CWA to avoid a
regulatory taking was quickly dismissed by the Supreme Court. Id. at 126-27.
52
Id. at 132-33.
Faced with such a problem of defining the bounds of its regulatory authority,
an agency may appropriately look to the legislative history and underlying
2007]
WETLANDS JURISDICTION AFTER RAPANOS
347
construe the CWA or determine whether the Corps’ regulation
was the most beneficial means of enforcing the CWA’s
purposes.53 Instead, the Court recognized that the Corps’
definition of adjacent wetlands was reasonable, and held that
therefore it was improper to subject the issue to further judicial
scrutiny.54
In SWANCC, the Court denied the Corps’ wetlands
jurisdiction for the first time in the CWA’s history.55 The Corps
had enacted the Migratory Bird Rule,56 a regulation that
extended the Corps’ jurisdiction over “navigable waters” to
include all habitats of migratory birds in intrastate waters.57
When a state commission informed the Corps that a proposed
disposal site for solid waste was also the nesting site for 121
bird species, the Corps forbade any development on the site
claiming that a group of abandoned gravel mining depressions
constituted “waters of the United States.”58 In affirming the
Corps’ jurisdiction, the Seventh Circuit noted the Corps’
authority under the CWA to regulate any waters within the
scope of the Commerce Clause and concluded that the site at
policies of its statutory grants of authority. Neither of these sources provides
unambiguous guidance for the Corps in this case, but together they do
support the reasonableness of the Corps’ approach . . . .
Id. at 132.
The Court went on to note that Congress recognized broad federal
authority in enacting the CWA and defining “waters of the United States.” Id. at 133.
Further, the Court mentioned the congressional concern for water quality, and noted
the weight of the Corps’ ecological judgment, as an expert agency in the field. Id. at
133-34. Finally, the Court discussed the 1977 congressional acquiescence and
amendment of the CWA to show that “Congress expressly stated that the term ‘waters’
included adjacent wetlands.” Id. at 136-39.
53
See id. at 138-39.
54
Id., 474 U.S. at 139 (“We are thus persuaded that the language, policies,
and history of the [CWA] compel a finding that the Corps has acted reasonably in
interpreting the Act . . . .” ).
55
SWANCC, 531 U.S. at 170-71.
56
Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg.
41,206, 41,217 (Nov. 13, 1986).
57
SWANCC, 531 U.S. at 164-65.
58
Id. at 164. The Court noted:
[T]he Corps formally ‘determined that the seasonally ponded, abandoned
gravel mining depressions located on the project site, while not wetlands, did
qualify as “waters of the United States” . . . based upon the following criteria:
(1) the proposed site had been abandoned as a gravel mining operation; (2)
the water areas and spoil piles had developed a natural character; and (3) the
water areas are used as habitat by migratory bird [sic] which cross state
lines.’
Id. at 164-65.
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issue fell within these bounds.59 The Supreme Court reversed.60
Writing for the majority, Justice Rehnquist held that the
gravel mining depressions at issue were not “navigable waters”
or adjacent wetlands, but failed to settle on one definition for
the critical link needed to classify wetlands as “waters of the
United States.”61 In response to the Corps’ argument for agency
deference, the SWANCC Court held that this approach was
inapplicable when an administrative interpretation reached
the limits of Congress’ power.62 Rehnquist also reasoned that
the 1977 congressional acquiescence63 did not apply to
“nonnavigable, isolated, intrastate waters” because this
acquiescence resulted from a concern for wetlands
preservation, not a concern for migratory birds, and occurred
nearly ten years before the Corps issued the Migratory Bird
Rule.64 Thus, the SWANCC Court held that the land at issue
was not subject to the Corps’ jurisdiction because of its isolated,
intrastate, and non-navigable nature.65
59
SWANCC, 531 U.S. at 166. The Commerce Clause of the United States
Constitution states, “The Congress shall have Power . . . [t]o regulate Commerce with
foreign Nations, and among the several States . . . .” U.S. CONST. art. I, § 8, cl. 1, 3. The
Supreme Court has held this clause gives Congress the expansive power to pass
legislation regulating any commerce that is “interstate” in nature. See Gibbons v.
Ogden, 22 U.S. (9 Wheat.) 1 (1824). Between 1937 and 1995, the Supreme Court failed
to declare any federal law unconstitutional as exceeding Congress’ scope under the
Commerce Clause. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND
POLICIES § 3.3, at 239 (2d ed. 2002). The Rehnquist Court, however, twice employed the
Commerce Clause to strike down two federal laws as unconstitutional. See United
States v. Morrison, 529 U.S. 598 (2000) (Violence Against Women Act); United States
v. Lopez, 514 U.S. 549 (1995) (Gun Free School Zones Act). Under Lopez and Morrison,
Congress may regulate (1) the channels of interstate commerce, (2) the
instrumentalities of interstate commerce and persons or things in interstate commerce,
and (3) activities that have a substantial effect on interstate commerce. Morrison, 529
U.S. at 609; Lopez, 514 U.S. at 558-59.
60
SWANCC, 531 U.S. at 174.
61
Id. Rehnquist described the requisite link in different parts of the opinion
as “wetlands ‘inseparably bound up with the “waters” of the Unites States,’” “wetlands
that actually abutted on a navigable waterway,” and wetlands possessing a “significant
nexus” with navigable-in-fact waters. Id. at 165-67.
62
“Where an administrative interpretation of a statute invokes the outer
limits of Congress’ power, we expect a clear indication that Congress intended that
result.” Id. at 172.
63
This term refers to Congress’ failure to amend the Corps’ jurisdiction with
a proposed amendment in 1977. United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 136-39 (1985); see also supra Part II.C.
64
SWANCC, 531 U.S. at 170-71.
65
Id. at 171-72. After SWANCC and before Rapanos, most appellate courts
limited SWANCC’s holding to waters that were isolated, intrastate, and non-navigable.
Robert R.M. Verchick, Toward Normative Rules for Agency Interpretation: Defining
Jurisdiction Under the Clean Water Act, 55 ALA. L. REV. 845, 866 (2004) (“Several
federal courts have now examined the impact of SWANCC on Clean Water Act
2007]
F.
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349
The Rapanos Decision
The Rapanos Court issued the Supreme Court’s third
decision on the scope of the Corps’ wetlands jurisdiction in the
CWA’s thirty-year history.66 The opinion consolidated the
appeals of two Sixth Circuit decisions, Rapanos v. United
States67 and Carabell v. United States,68 which involved
disputes between two property owners and the Corps over the
denial of permits to develop four plots of land.69 Each of the four
plots at issue contained wetlands and some connection to a
river or tributary of another body of water.70
Rapanos, a real estate developer, initiated construction
on wetlands at the various sites without applying to the Corps
for permits.71 Despite receiving several administrative
compliance orders from the EPA directing him to cease work
immediately, Rapanos continued to build on the sites and
performed extensive clearing and filling activities at these
locations.72 The United States brought criminal and civil
actions against Rapanos for illegally discharging fill material
into protected wetlands under the CWA, failing to respond to
requests for information, and ignoring the administrative
compliance orders.73 After a bench trial, the United States
District Court for the Eastern District of Michigan found that
Rapanos filled twenty-two acres of wetlands in violation of 33
jurisdiction. Most of these cases limit SWANCC’s effect to waters that are isolated,
intrastate, and non-navigable, although a few do not.”).
66
Rapanos, 126 S. Ct. 2208.
67
376 F.3d 629 (6th Cir. 2004), vacated, 126 S. Ct. 2208.
68
391 F.3d 704 (6th Cir. 2004), vacated, Rapanos, 126 S. Ct. 2208.
69
Rapanos, 126 S. Ct. at 2238-39 (Roberts, CJ., concurring). In Rapanos, four
pieces of land were at issue: (1) a plot of 230 acres, known as the Salzburg site,
including 28 acres of wetlands; (2) a plot of 275 acres, known as the Hines Road site,
including 64 acres of wetlands; (3) a plot of 200 acres, known as the Pine River site,
with 49 acres of wetlands; and (4) a parcel of 19.6 acres, the Carabell site, including
15.9 acres of wetlands. Id.
70
Id. at 2239. The District Court found that the Salzburg site had a surface
water connection to “tributaries of the Kawkawlin River which, in turn, flows into the
Saginaw River and ultimately into Lake Huron.” Id. The Hines Road site connected to
a drain that carried water into the Tittabawassee River, while the Pine River site’s
wetlands connected through surface water to the Pine River and also flowed into Lake
Huron. Id. In Carabell, the property was separated by a man-made berm from a ditch
that connected to a drain which empties into a creek that empties into Lake St. Clair.
Carabell v. United States, 257 F. Supp. 2d 917, 923 (E.D. Mich. 2003).
71
Rapanos, 126 S. Ct. at 2253. (Stevens, J., dissenting).
72
Id.
73
Id. at 2239 (Kennedy, J., concurring).
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U.S.C. §1311.74 Rapanos subsequently appealed to the Sixth
Circuit, which affirmed the findings of the District Court on the
grounds that Rapanos filled lands that contained “adjacent
waterways” to “navigable waters.”75
Unlike Rapanos, the Carabells apparently did not
attempt to develop their lands.76 The Carabells twice applied
for a permit to build condominium units on their land between
1993 and 1994.77 Upon the Corps’ second denial, the Carabells
brought an administrative appeal to the United States District
Court for the Eastern District of Michigan.78 The District Court
found that the Corps was within its jurisdiction to deny the
permit and was not arbitrary and capricious in doing so, and
the Sixth Circuit affirmed.79
The Supreme Court reversed the Sixth Circuit on both
cases and remanded to the District Court.80 However, the Court
was divided on the proper test to be applied. Four justices
(Scalia, Thomas, Alito, and Roberts) agreed that “waters of the
United States” should be limited in application to “only
relatively permanent, standing, or flowing bodies of water” and
that only wetlands with a continuous surface connection to
“waters of the United States” may be classified as adjacent
wetlands.81 Four justices (Stevens, Souter, Breyer, and
Ginsburg) agreed that the Court should have deferred to the
Corps’ jurisdiction as an executive agency with a broad
congressional delegation of authority.82 In a concurring opinion,
Justice Kennedy argued that the case should be remanded on
the grounds that neither the plurality nor the dissent applied a
74
Rapanos, 126 S. Ct. at 2252 (Stevens, J., dissenting). This conclusion was
based largely on the “highly credible” testimony of Dr. Daniel Willard, an expert in
wetlands whom the District Court found to be “eminently qualified.” Rapanos, 376 F.3d
at 644 (“The district court found Dr. Willard to be ‘eminently qualified’ as an expert in
wetlands and concluded that his testimony was ‘highly credible.’”).
75
Rapanos, 376 F.3d at 639. The Court of Appeals pointed out that “adjacent
waterways” include any branch of a tributary system that eventually flows into a
navigable body of water. Id.
76
See Carabell v. U.S. Army Corps of Eng’rs, 257 F. Supp. 2d 917, 920-23
(E.D. Mich. 2003), aff’d, 391 F.3d 704 (6th Cir. 2004), rev’d, Rapanos, 126 S. Ct. at
2208.
77
Id. at 919.
78
Id. at 921.
79
Id. at 933-34; Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704, 710
(6th Cir. 2004).
80
Rapanos, 126 S. Ct. at 2208.
81
Id. at 2221, 2226.
82
Id. at 2265 (Stevens, J., dissenting).
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WETLANDS JURISDICTION AFTER RAPANOS
351
significant nexus test.83 According to Kennedy, wetlands have a
“significant nexus” when they, alone or in combination with
nearby lands, “significantly affect the chemical, physical, and
biological integrity” of navigable-in-fact waters.84 Courts must
then assess the significant nexus in terms of the CWA’s goals
and purposes to determine whether the wetlands are “waters of
the United States.”85
G.
Cases Since Rapanos
Since Rapanos, courts have disagreed over the proper
test to apply.86 Some courts have chosen to apply the significant
nexus test as the narrowest grounds to follow Rapanos.87 Other
courts have held that the Corps has wetlands jurisdiction if the
wetlands at issue satisfy either the plurality or significant
nexus tests.88 Finally, a few courts have disregarded the
83
Id. at 2250 (Kennedy, J., concurring).
Id. at 2248.
85
Id.
86
See United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir.
2006); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir.
2007), superseding 457 F.3d 1023 (9th Cir. 2006); United States v. Johnson, 467 F.3d
56, 63-64 (1st Cir. 2006). United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605,
613 (N.D. Tex. 2006).
87
See S.F. Baykeeper v. Cargill Salt Div., 481 F.3d 700, 707-08 (9th Cir.
2007); N. Cal. River Watch, 496 F.3d at 999-1000; Gerke Excavating, 464 F.3d at 725;
United States v. Fabian, No. 2:02-CV-495, 2007 WL 1035078, at *15 (N.D. Ind. Mar.
29, 2007); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 824 (N.D.
Cal. 2007). These courts follow the precedent of Marks v. United States, which states,
“[w]hen a fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on the narrowest
grounds.” Marks v. United States, 430 U.S. 188, 193 (1977).
88
See Johnson, 467 F.3d at 63-64; United States v. Cundiff, 480 F. Supp. 2d
940, 944 (W.D. Ky. 2007); Simsbury-Avon Pres. Soc’y v. Metacon Gun Club, Inc., 472 F.
Supp. 2d 219, 226-27 (D. Conn. 2007); United States v. Evans, No. 3:05 CR 159 J
32HTS, 2006 WL 2221629, at *18 (M.D. Fla. Aug. 2, 2006). These courts follow a
suggestion from Justice Stevens’ dissent in Rapanos:
84
It has been our practice in a case coming to us from a lower federal court to
enter a judgment commanding that court to conduct any further proceedings
pursuant to a specific mandate. That prior practice has, on occasion, made it
necessary for Justices to join a judgment that did not conform to their own
views. In these cases, however, while both the plurality and Justice Kennedy
agree that there must be a remand for further proceedings, their respective
opinions define different test to be applied on remand. Given that all four
Justices who have joined this opinion would uphold the Corps’ jurisdiction in
both of these cases--and in all other cases in which either the plurality’s or
Justice Kennedy’s test is satisfied--on remand each of the judgments should
be reinstated if either of those tests is met.
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plurality and significant nexus tests, choosing instead to apply
their own precedent.89 Thus, the extent of the Corps’ wetlands
jurisdiction remains unclear.90
III.
THE ILLOGIC OF THE PLURALITY TEST
The plurality test presents a flawed approach to
limiting the Corps’ jurisdiction for several reasons. First, the
plurality test threatens to defeat the purposes of the CWA by
excluding wetlands necessary to preserve water quality and
produce natural products.91 Second, this test presents an
implausible and self-contradicting construction of “waters of
the United States.”92 Third, the plurality test misconstrues
congressional intent and legislative history.93 Finally, the test
misreads prior Supreme Court precedent, and it fails to accord
agency deference.94 Most courts after Rapanos have disregarded
the plurality test.95 This Section will discuss the illogic of this
test and suggest that future courts also decline to accept the
Rapanos plurality’s constructions of “waters of the United
States” and adjacent wetlands.
A.
Environmental Effects of the Plurality Test
The environmental implications of adopting the
plurality test could be devastating. While natural wetlands
continue to disappear and the realm of private property
Rapanos, 126 S. Ct. at 2265 (footnotes omitted). But see King v. Palmer, 950 F.2d 771,
783 (D.C. Cir. 1991) (“[W]e do not think we are free to combine a dissent with a
concurrence to form a Marks majority.”). The King Court held that an opinion can only
be regarded as “narrower” when it is a subset of broader opinions. Id. at 781. The First
Circuit in Johnson, however, distinguished King because it noted that none of the tests
from Rapanos were a subset of another test. Johnson, 467 F.3d at 64 (“[The King
Court’s] understanding of ‘narrowest grounds’ . . . does not translate easily to the
present situation. The cases in which Justice Kennedy would limit federal jurisdiction
are not a subsidy of the cases in which the plurality would limit jurisdiction.”).
89
See Gerke Excavating, 464 F.3d 723 at 725; Chevron Pipe Line, 437 F.
Supp. 2d at 613.
90
Charles Lane, Justices Rein in Clean Water Act; Still-Divided Court Leaves
Reach of the Law Unclear, WASH. POST, June 20, 2006, at A1.
91
See infra Part III.A.
92
See infra Part III.B.
93
See infra Part III.C.
94
See infra Part III.D.
95
See infra Part III.E.
2007]
WETLANDS JURISDICTION AFTER RAPANOS
353
expands,96 the Corps may be unable to regulate several types of
waters under this test. The plurality test forbids waters that
are not “relatively permanent, standing, or flowing bodies” and
wetlands lacking a “continuous surface connection” to “waters
of the United States” from ever being considered “waters of the
United States.”97 Waters falling outside the Corps’ jurisdiction
would thus include intermittent streams, seasonal rivers, and
periodically-dry river beds.98 Wetlands falling outside the
Corps’ jurisdiction would include wetlands near, but not
directly touching, a relatively permanent, standing, or flowing
body of water.99 These natural features would then become
unregulated candidates for development or the deposit of
dredge due to one of two arbitrary facts: (1) water was not
present for a sufficiently large number of days, or (2) the
wetland was close, but not directly touching, “water of the
United States.” Two polluters that cause the same amount of
damage to the environment might face disparate degrees of
liability based solely on a percentage of days or the proximity of
a connection.100 Developers, polluters, and property owners
would be encouraged to alter the nature of their property in
order to exempt their lands from the Corps’ jurisdiction.101
Plant and animal life forms that rely on intermittent bodies of
water and non-continuous wetlands for subsistence would be
forced to find other habitats or die off in the face of
development.102 In essence, eco-systems would die.103 While
96
ZINN & COPELAND II, supra note 28. A FWS study estimated an annual
loss of wetlands in the continental United States of 58,000 acres per year between 1986
and 1997. Id.
97
Rapanos, 126 S. Ct. at 2221, 2224.
98
See id. at 2259-60 (Stevens, J., dissenting).
99
Id. at 2262.
100
In his dissent, Justice Stevens discusses a hypothetical stream that flows
for 290 days of the year and another stream that flows for the entire year to illustrate
that polluters in both streams could cause the same effect on downstream waters,
while realizing disparate levels of liability under the plurality test. Id. (“Under the
plurality’s view, then, the Corps can regulate polluters who dump dredge into a stream
that flows year round but may not be able to regulate polluters who dump into a
neighboring stream that flows for only 290 days of the year—even if the dredge in this
second stream would have the same effect on downstream waters as the dredge in the
year-round one.”).
101
For example, a developer could block the inundation of water onto his
property in order to prevent it from including a relatively permanent, standing, or
flowing body of water. This step would remove the Corps’ jurisdiction over the property,
and thus allow the property owner to proceed with development.
102
What Are Wetlands?, supra note 11. Both aquatic and terrestrial creatures
live on wetlands, and some species’ habitat depends upon whether the area consists of
coastal or inland wetlands. Id. “Destruction of wetlands eliminates or severely
minimizes their function and value. Drainage of wetlands prevents surface water
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developers may argue the necessity of sacrifices to prevent the
Corps from overreaching its authority, statistics indicate the
Corps’ permit process is far from highly selective.104 In reality,
the Corps denies less than 1% of fill permits.105 Finally, as
Justice Stevens points out, the large investments necessary for
such development show that the property owners affected by
the Section 404 program106 are quite capable of lobbying their
representatives for a change in congressional policy.107 The
effects of the plurality test would work cruel and unnecessary
destruction on the environment in the name of needlessly
Therefore,
the
promoting
economic
development.108
environmental consequences of the plurality test suggest that a
harsh standard for establishing the Corps’ jurisdiction would
be inappropriate.
B.
The Plurality Test as a Matter of Statutory Construction
The plurality test, as a matter of statutory construction,
suffers from inconsistency and implausibility. The first holding
of the plurality’s opinion—that “only relatively permanent,
standing or flowing bodies of water” make up “waters of the
United States”109—results from a thorough tour of the Webster’s
New International Dictionary (“Webster’s Second”), which
Scalia separately cites to define such ambiguous terms as “the,”
“waters,” and “waters of the United States.”110 Somehow, Scalia
storage and reduces their water quality enhancement function. Wetland filling does
likewise as well as destroying vital habitats for native fish and wildlife species.” NWI
Values of Wetlands for Flood and Storm Surge Attenuation, U.S. Fish & Wildlife
Service, http://www.fws.gov/nwi/stormvalues.htm.
103
What Are Wetlands?, supra note 11; see also U.S. Fish & Wildlife Service,
National Wetlands Inventory: Developing and Providing Wetlands Information,
http://www.fws.gov/fisheries/CD/Programs/National_Wetlands_Inventory.pdf
(last
visited Nov. 13, 2007) (noting the ecological and economic importance of preserving
wetlands as eco-systems). For further information on eco-systems, see discussion supra
note 11.
104
U.S. GEN. ACCOUNTING OFFICE, WATERS AND WETLANDS: CORPS OF
ENGINEERS NEEDS TO EVALUATE ITS DISTRICT OFFICE PRACTICES IN DETERMINING
JURISDICTION 8 (GAO-04-297, 2004), http://www.gao.gov/new.items/d04297.pdf.
105
In 2002, for example, the Corps denied 128 Section 404 permits out of
85,445 applications. Id.
106
The Section 404 program is the process employed by the Corps to issue
permits under Section 404 of the Clean Water Act. ZINN & COPELAND I, supra note 27,
at 2.
107
Rapanos, 126 S. Ct. at 2259 (Stevens, J., dissenting).
108
See id.
109
Id. at 2221 (plurality opinion).
110
Id. at 2220.
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WETLANDS JURISDICTION AFTER RAPANOS
355
concludes that the use of the definite article “the” and the
plural version of “waters” links the terms of 33 U.S.C. § 1311
with the definitions in Webster’s Second, which refer to water
“[a]s found in streams and bodies forming geographical
features such as oceans, rivers, and lakes” or “the flowing or
moving masses, as of waves or flood, making up such streams
or bodies.”111 Next, Justice Scalia takes the awkward step of
equating the preceding definitions with his own requirement of
“relatively permanent, standing, or flowing” water without
111
Id. Justice Scalia continued:
The Corps’ expansive approach might be arguable if the CSA [sic] defined
‘navigable waters’ as ‘water of the United States.’ But ‘the waters of the
United States’ is something else. The use of the definite article (‘the’) and the
plural number (‘waters’) show plainly that § 1362(7) does not refer to water in
general. In this form, ‘the waters’ refers more narrowly to water ‘[a]s found in
streams and bodies forming geographical features such as oceans, rivers,
[and] lakes,’ or ‘the flowing or moving masses, as of waves or floods, making
up such streams or bodies.’
Id. (citing WEBSTER’S NEW INTERNATIONAL DICTIONARY 2882 (2d ed. 1955) [hereinafter
Webster’s Second]). Scalia’s distinction between “waters” and “water” would therefore
remove the Corps’ jurisdiction from several types of natural features based on the
presence of a single letter, when Congress’ express purposes and legislative history
counsel for the opposite conclusion.
Further, Scalia supplies no reason for citing the Webster’s Second beyond
his conclusion that it provides “the only natural definition of the term ‘waters.’” Id. at
2220. Judging by his abandonment of Webster’s Second when he defines “adjacent
wetlands,” Scalia must have chosen this source because it was most advantageous to
support a conclusion he had already reached. Thus, the definitions of ‘waters’ cited by
Scalia within Webster’s Second do not connote the significance of a controlling rule of
law.
Finally, Webster’s Second’s definitions of “waters” provide inadequate
support for Scalia’s conclusion. Even if “waters” refers to ‘[a]s found in streams and
bodies forming geographical features such as oceans, rivers, [and] lakes” or “the flowing
or moving masses, as of waves or floods, making up such streams or bodies,” these
definitions do not mandate that waters be permanent, standing, or flowing bodies. Id.
at 2220 (citing Webster’s Second). At most, these definitions connote that some waters
have these qualities, but others may lack these qualities. Therefore, the plurality test’s
first conclusion lacks support in the cited definitions.
One can only guess why Scalia attempts this strained construction of
“waters,” and why the other three members of the plurality subscribe to it, when these
Justices could have adopted the more obvious position: Congress intended to give the
Corps broad discretion to define the Corps’ jurisdiction. A potential explanation can be
given by a quote from Chief Justice Roberts’s brief concurring opinion: “[After
SWANCC], the Corps chose to adhere to its essentially boundless view of the scope of
its power.” Id. at 2236 (Roberts, C.J., concurring). Roberts use of the words “essentially
boundless” indicates an ideological belief, possibly held by other members of the
plurality, that the Corps’ jurisdiction is too large, and must be reduced at all costs. If
this belief is the real motivation behind the plurality’s “revisionist reading” of the
CWA, the Court’s agency jurisprudence has taken a shameful turn beyond impartiality
into ideology, and the Court is lucky this view does not command majority approval. Id.
at 2255 (Stevens, J., dissenting).
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defining any of these terms.112 Although Scalia points out that
“[n]one of these terms encompasses transitory puddles or
ephemeral flows of water,” the conclusion that all “waters of
the United States” therefore must be relatively permanent
lacks a logical basis.113 As Justice Stevens points out in his
dissent, Webster’s Second says nothing about whether waters
can be intermittent or ephemeral and yet be classified as
“waters.”114 Therefore, the plurality test’s first element lacks
foundation.
In the second part of the plurality test—that “adjacent
wetlands” must have a “continuous surface connection” to
“waters of the United States”—Justice Scalia abandons the
counsel of his “preferred” source, Webster’s Second, to read in
an “amendment” to the CWA.115 Delving immediately into the
case history of Riverside Bayview and SWANCC for foundation,
Scalia fails to conduct any investigation on a linguistic
meaning of “adjacent,” “wetlands,” or “adjacent wetlands.”116
One potential reason for this omission might be the definition
of “adjacent” in Webster’s Second, which defines “adjacent” as
“nearby” or “close,” and explicitly states “[o]bjects are adjacent
when they lie close to each other, but not necessarily in actual
contact.”117 This definition squarely conflicts with any
requirement of a connection. Under the Corps’ definition,
“adjacent” means “bordering, contiguous, or neighboring,” and
“adjacent wetlands” include non-contiguous wetlands.118 This
112
Rapanos, 126 S. Ct. at 2220-21 (plurality opinion).
Id. at 2221.
114
Id. at 2260 (Stevens, J., dissenting).
115
Id. at 2226 (plurality opinion), construed in id. at 2262 (Stevens, J.,
dissenting). By “amendment,” Stevens is referring to Scalia’s logic formulating the
plurality test. In creating this test, Scalia devised a definition for two terms in the
CWA. Thus, Scalia amended the CWA by promulgating these two definitions. See id.
Stevens also notes that the two canonical principles that the plurality test relies
upon—concern over intrusion on state power and constitutional avoidance—are
inapplicable to the issue of adjacent wetlands. Id. at 2261. On the state power intrusion
issue, “Congress found it ‘essential that discharge of pollutants be controlled at the
source,’ and the Corps can define ‘waters’ broadly to accomplish this aim;” and on the
constitutional avoidance issue, “[t]he wetlands in these cases are not ‘isolated’ but
instead are adjacent to tributaries of traditionally navigable waters and play important
roles in the watershed . . . .” Id. at 2261-62.
116
Id. at 2225-27 (plurality opinion).
117
Webster’s Second defines adjacent as “[l]ying near, close, or contiguous;
neighboring; bordering on.” See id. at 2263 (Stevens, J., dissenting) (quoting Webster’s
Second 32).
118
33 C.F.R. § 328.3(c) (2006) (“Wetlands separated from other waters of the
United States by man-made dikes or barriers, natural river berms, beach dunes and
the like are ‘adjacent wetlands.’”).
113
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WETLANDS JURISDICTION AFTER RAPANOS
357
definition is both consistent with the delegation of authority in
the CWA and other legal and nonlegal definitions of
“adjacent.”119 Therefore, the plurality test’s requirement of a
“continuous surface connection” implausibly fails to consider
accepted definitions of “adjacent” and conflicts with the
methods of construction used to construe “waters of the United
States.”
C.
The Plurality Test Versus Congressional Intent and
Legislative History
The plurality test fails most, perhaps, in its attempt to
reflect consistency with congressional intent. Congress made
no mention of permanence, connections, or Webster’s Second
when it promulgated § 1311 in 1972.120 At the time, Congress’
intent was to eliminate pollution and resolve the problems
caused by the states’ failure to regulate their own programs.121
The CWA, as a result, gave broad power to the federal
government, allowing the Corps to define “waters of the United
States.”122 In contrast, the plurality test’s interpretations of
“waters of the United States” and “adjacent wetlands” would
limit federal power and frustrate this intent.123 Moreover, the
plurality test conflicts with Congress’ 1977 acquiescence.124
While Scalia “ha[s] no idea whether the Members’ failure to act
in 1977 was attributable to their belief that the Corps’
119
See, e.g., Rapanos, 126 S. Ct. at 2262 (Stevens, J., dissenting) (quoting
Webster’s Second 32); BLACK’S LAW DICTIONARY 44 (8th ed. 2004) (defining “adjacent”
as “[l]ying near or close to, but not necessarily touching”).
120
See Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.
92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251-1376 (2000)).
121
S. REP. NO. 92-414, at 1-2 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3675-76.
122
See Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.
92-500, § 404, 86 Stat. 816, 884 (codified at 33 U.S.C. § 1344 (2000)).
123
By specifying that “waters of the United States” must be “relatively
permanent, standing, or flowing” bodies and holding that adjacent wetlands must
include a “continuous surface connection,” the plurality test specifically removes
certain wetlands from the jurisdiction of the federal government. Rapanos, 126 S. Ct.
at 2221, 2226. Ironically, this removal occurs against the explicit wishes of most state
governments, as 33 states petitioned the Rapanos Court in support of the Sixth
Circuit’s decision. Id. at 2224 n.8.
124
In 1977, Congress decided not to amend the CWA to reduce the Corps’
jurisdiction. H.R. REP. No. 95-139, at 54 (1977). By removing specific wetlands and
waters from the Corps’ jurisdiction, the plurality test also works in contravention of the
congressional intent, which this acquiescence conveys. Rapanos, 126 S. Ct. at 2264
(Stevens, J., dissenting). See supra Part II.C.
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regulations were correct,”125 the congressional record indicates
that the Corps’ jurisdiction was specifically debated and
resolved in favor of an expansive definition.126 Therefore, the
plurality test conflicts with both the legislative intent at the
drafting and through the subsequent history of the CWA.
D.
The Plurality Test’s Treatment of Prior Supreme
Court Precedent
Similarly, the plurality test fails to properly interpret
the prior case law on the Corps’ jurisdiction. Under Chevron,
when congressional intent is ambiguous, courts must defer to
an agency’s construction of a statute so long as the construction
is reasonable.127 In Riverside Bayview, the Court applied agency
deference to uphold the Corps’ jurisdiction over adjacent
wetlands.128 The SWANCC Court, in contrast, denied the Corps
agency deference because the intrastate, isolated nature of the
land at issue “invoke[d] the outer limits of Congress’ power”
under the Commerce Clause.129 The wetlands at issue in
Rapanos, however, significantly differed from the gravel pit in
SWANCC because the Rapanos wetlands held connections to
various bodies of water, which directly affected interstate
commerce.130 Therefore, upholding the Corps’ jurisdiction in
125
Rapanos, 126 S. Ct. at 2230.
123 CONG. REC. 39,209 (1977) (“[T]he conference bill retains the
comprehensive jurisdiction over the Nation’s waters . . . .”). Specifically, the record
shows that the 1977 House passed a bill limiting the Corps’ wetlands jurisdiction to
navigable-in-fact waters and their adjacent wetlands. See H.R. 3199, 95th Cong., at 8081, 102-04 (1977). Next, the Senate passed a bill that contained no redefinition. S.
1952, 95th Cong., at 63-76 (1977). Finally, the record shows the Conference Committee
of both houses adopted the Senate’s approach. 123 CONG. REC. 39,209 (1977) (“The
solution presented in the Senate Bill was adopted with only minor changes.”).
127
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43
(1984).
128
United States v. Riverside Bayview Homes, 474 U.S. 121, 138 (1985).
129
SWANCC, 531 U.S. 159, 172 (2001). The Commerce Clause, in Article I,
Section 8 of the Constitution, expressly gives Congress “power . . . [t]o regulate
commerce with foreign nations, and among the several States.” U.S. CONST. art. I, § 8,
cl. 3. The SWANCC Court held, “[w]here an administrative interpretation of a statute
invokes the outer limits of Congress’ power, we expect a clear indication that Congress
intended that result.” SWANCC, 531 U.S. at 172. This court went on to explain that its
requirement was derived from “[its] prudential desire not to needlessly reach
constitutional issues and our assumption that Congress does not casually authorize
administrative agencies to interpret a statute to push the limit of congressional
authority.” Id. at 172-73.
130
See Rapanos, 126 S. Ct. at 2239. The District Court found that the
Salzburg site had a surface water connection to “tributaries of the Kawkawlin River
which, in turn, flows into the Saginaw River and ultimately into Lake Huron.” The
Hines Road site connected to a drain that carried water into the Tittabawassee River,
126
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Rapanos would not have raised the “significant constitutional
questions”131 cited in SWANCC, and the Rapanos plurality
should not have abrogated agency deference.
1. The Plurality’s Misapplication of SWANCC
Instead of recognizing the lack of “constitutional
questions” in Rapanos, Scalia relied heavily on SWANCC to
redefine “adjacent wetlands” under an inappropriate standard.
In Scalia’s opinion, though disputed by several other courts,
SWANCC held that adjacent wetlands directly abut “waters of
the United States.”132 SWANCC, however, denied the Corps
jurisdiction under a “heightened concern” evoked by
“constitutional questions” relating to the isolated, intrastate
lands at issue in that case.133 In contrast, the plurality in
Rapanos did not consider any “constitutional questions”
because the Rapanos wetlands were not isolated.134 The
Rapanos plurality did, however, apply the same heightened
concern of SWANCC to impose that Court’s construction of
adjacent wetlands upon the Corps.135 As the SWANCC standard
while the Pine River site’s wetlands connected through surface water to the Pine River
and also flowed into Lake Huron. Id. at 2239. In Carabell, the property was separated
by a man-made berm from a ditch that connected to a drain, which empties into a creek
that empties into Lake St. Clair. Carabell v. United States, 257 F. Supp. 2d 917, 923
(E.D. Mich. 2003).
131
SWANCC, 531 U.S. at 174.
132
Rapanos, 126 S. Ct. at 2218. Most appellate courts have limited the
holding of SWANCC to the intrastate, isolated land at issue in that case. Verchick,
supra note 65. Further, while mentioning “wetlands that actually abutted on a
navigable waterway” as one of three definitions for adjacent wetlands, the SWANCC
court never required direct abutment as a condition precedent for adjacency. SWANCC,
531 U.S. at 167.
133
SWANCC concerned pools created in abandoned sand and gravel pits
where migratory birds nest. SWANCC, 531 U.S. at 174. These pits, unlike the waters
at issue in Rapanos, were wholly intrastate. See id. Thus, the land at issue in
SWANCC evoked the outer limits of Congress’ power under the Commerce Clause,
causing the court to evaluate the Corps’ jurisdiction under a “heightened concern.” Id.;
see also John D. Ostergren, SWANCC in Duck Country: Will Court-Ordered Devolution
Fill the Prairie Potholes?, 22 STAN. ENVTL. L.J. 381, 396-99 (2003) (discussing the effect
of SWANCC on federal jurisdiction over intrastate, non-navigable isolated wetlands).
For a discussion on the scope of the Commerce Clause, see discussion supra note 59.
134
See Rapanos, 126 S. Ct. at 2225.
135
Specifically, the court held that the Corps’ definition of “waters of the
United States” was impermissible, under Chevron, and applied the direct abutment
requirement of SWANCC, instead of deferring to the Corps. Id. The court’s conclusion
that the definition was impermissible, however, is largely founded upon the court’s
reading of Webster’s Second for the requirement of “relatively permanent, standing, or
flowing bodies of water” and SWANCC for the requirement of a “direct surface
connection.” Id. at 2221, 2224-25. Thus, the court renders an agency’s construction of a
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was intended to address constitutionally invasive exercises of
federal power and not all of the exercises of the Corps’
wetlands jurisdiction, the plurality’s use of SWANCC was
improper.
2. The Plurality’s Erroneous Distinction of
Riverside Bayview
In addition, the plurality erroneously distinguished
Riverside Bayview. Riverside Bayview supported deferring to
the Corps as long as its jurisdiction was reasonable and
provided the controlling precedent on the central issue in
Rapanos—adjacent wetlands.136 Arguing to the contrary,
Justice Scalia held that Riverside Bayview was irrelevant
because “the definition of tributaries was not at issue in that
case.”137 Scalia’s logic, however, is misplaced. While tributaries
were not at issue in Riverside Bayview, this fact is de minimus
because this precedent was intended to apply to all wetlands,
including those with a tributary connection to “waters of the
United States.”138 In Rapanos, tributaries connected the
wetlands at issue to “waters of the United States.”139 Therefore,
Riverside Bayview provided the controlling precedent, and the
plurality improperly distinguished this case. 140
E.
Post-Rapanos Courts Have Disregarded the
Plurality Test
Several lower courts have entirely snubbed the strict
nature of the plurality test.141 These cases have either followed
statute “impermissible” based on the weight of a dictionary and an irrelevant
precedent. Id. at 2224.
136
United States v. Riverside Bayview Homes, 474 U.S. 121, 123 (1985).
137
Rapanos, 126 S. Ct. at 2229.
138
Id. at 2255 (Stevens, J., dissenting).
139
Id. at 2256-57.
140
Essentially, the test renders the determinations of Riverside Bayview and
SWANCC insignificant by creating an entirely new standard that conflicts with the
underlying premises of these cases.
141
N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th
Cir. 2007) (holding that the “significant nexus” test “provides the controlling rule of
law”); United States v. Cundiff, 480 F. Supp. 2d 940, 944 (W.D. Ky. 2007); United
States v. Fabian, No. 2:02-CV-495, 2007 WL 1035078, at *15 (N.D. Ind. Mar. 29, 2007);
Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 824 (N.D. Cal. 2007)
(holding that satisfaction of the plurality test is “not necessary” for jurisdiction under
the CWA); United States v. Evans, No. 3:05 CR 159 J 32HTS, 2006 WL 2221629, at *19
(M.D. Fla. Aug. 2, 2006) (allowing the jurisdictional requirement to be met if either the
plurality or “significant nexus” test was satisfied). An EPA administrative decision also
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Justice Kennedy’s significant nexus test142 as the controlling
rule of law or awarded jurisdiction to the Corps if the property
at issue met either the plurality or significant nexus tests’
criteria.143 As these decisions concerned the Corps’ wetlands
jurisdiction, the unwillingness of these courts to apply the
plurality test indicates the impracticality of categorically
applying this standard.
In conclusion, the plurality test consists of two arbitrary
definitions,144 both of which lack consistency and foundation.
These constructions fail to comport with congressional intent,
subsequent legislative intent, both of the prior Supreme Court
cases involving the subject matter at issue, and the
environmental concerns expressed in thirty-three amici briefs,
none of which advocated the plurality’s test.145 In addition, the
test sharply contradicts the proper deference owed to the Corps
under Chevron and Riverside Bayview.146 Moreover, the test
would
yield
unnecessary
and
harsh
environmental
consequences, such as the arbitrary destruction of eco-systems
and the death of plant and animal life.147 For these reasons and
others, lower courts since Rapanos facing similar issues have
recognized that the plurality test was “at odds with the [CWA’s] concern with
downstream water quality.” In re J. Phillips Adams, No. CWA-10-2004-0156, 2006 EPA
ALJ LEXIS 33, *71 (EPA Oct. 18, 2006). This tribunal employed Justice Kennedy’s
significant nexus test to uphold CWA jurisdiction over the property at issue. Id.
142
See discussion infra Part IV.
143
N. Cal. River Watch, 496 F.3d at 999-1000; Cundiff, 480 F. Supp. 2d at
944; Fabian, 2007 WL 1035078, at *15; Envtl. Prot. Info. Ctr., 469 F. Supp. 2d at 824;
Evans, 2006 WL 2221629, at *19.
144
The first part of the plurality test states “‘waters of the United States’
include only relatively permanent, standing or flowing bodies of water.” Rapanos, 126
S. Ct. at 2221. The second part of the plurality test states “the phrase ‘the waters of the
United States’ includes only those relatively permanent, standing or continuously
flowing bodies of water ‘forming geographic features’ that are described in ordinary
parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’” Id. at 2225 (citing Webster’s
Second, at 2882).
145
Id. at 2224 n.8; id. at 2259 n.9 (Stevens, J., dissenting (“[T]he Corps’
approach has the overwhelming endorsement of numerous amici curiae, including 33
States . . . .”). An amicus curiae is an entity “who is not a party to a lawsuit but who
petitions the court or is requested by the court to file a brief in the action because that
person has a strong interest in the subject matter.” BLACK’S LAW DICTIONARY 93 (8th
ed. 2004).
146
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 138-39
(1985). The Riverside Bayview Court held the Corps’ construction of the CWA
interpreting “waters of the United States” to include adjacent wetlands was
reasonable, and therefore permissible under Chevron. Id.
147
As discussed above, the arbitrary nature of the plurality test’s two
requirements would categorically exclude certain wetlands, and force plants and
animals depending on these lands to either die off or relocate. See discussion supra
Part III.A. Further, this result is unnecessarily harsh because the Corps only denies
1% of permits. Id.
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sidestepped or avoided the plurality test.148 This Note argues
that courts should continue to disregard the plurality test as an
implausible, inconsistent standard, which fails to accord
appropriate deference to legislative intent, prior case law, the
views of state governments, or the Corps’ judgment.
IV.
AN EXAMINATION OF THE SIGNIFICANT NEXUS TEST
The significant nexus test, already the most frequently
applied standard of the Corps’ jurisdiction in the post-Rapanos
era,149 is likely to be the most influential test deriving from
Rapanos. This test requires that property exhibit a “significant
nexus” between the wetlands at issue and navigable-in-fact
waters for the Corps to have jurisdiction.150 This nexus is
“assessed in terms of the statute’s goals and purposes,” as
outlined in 33 U.S.C. § 1251.151 For the nexus to exist, either
the wetlands or a combination of the wetlands and surrounding
lands must “significantly affect the chemical, physical, and
biological integrity” of navigable-in-fact waters.152 Justice
Kennedy further notes that wetlands whose effects on water
quality are “speculative” or “insubstantial” fall outside the
Corps’ regulatory jurisdiction.153 On its face, the significant
nexus test may seem reasonable through its balancing of
interests and respect for both congressional intent and prior
case law. This test, however, is far from the most logical or
148
E.g., N. Cal. River Watch, 496 F.3d at 999-1000; United States v. Johnson,
467 F.3d 56, 66 (1st Cir. 2006) (suggesting that on remand the district court could base
jurisdiction on either the plurality’s or Justice Kennedy’s standard); Fabian, 2007 WL
1035078, at *15; Envtl. Prot. Info. Ctr., 469 F. Supp. 2d at 824; Evans, 2006 WL
2221629, at *19; United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir.
2006); United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex.
2006).
149
Since Rapanos, two courts have disregarded the Rapanos decision. See
Gerke Excavating, 464 F.3d at 725; Chevron Pipe Line, 437 F. Supp. 2d at 613. Other
courts addressing this issue have either applied the “significant nexus” test, as the
narrowest grounds of the Rapanos holding, or allowed the Corps jurisdiction if the
wetlands at issue met either the plurality or “significant nexus” test. See Fabian, 2007
WL 1035078, at *15; Envtl. Prot. Info. Ctr., 469 F. Supp. 2d at 824; Evans, 2006 WL
2221629, at *19; N. Cal. River Watch, 496 F.3d at 999-1000; Johnson, 467 F.3d at 6364.
150
Rapanos, 126 S. Ct. at 2248 (Kennedy, J., concurring) (“Consistent with
SWANCC and Riverside Bayview and with the need to give the term ‘navigable’ some
meaning, the Corps’ jurisdiction over wetlands depends upon the existence of a
significant nexus between the wetlands in question and navigable waters in the
traditional sense.”).
151
Id.
152
Id.
153
Id.
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WETLANDS JURISDICTION AFTER RAPANOS
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proper one due to its incredible ambiguity and the
complications it creates for both government enforcement and
private property owners in the permit process.
A.
The History of the Significant Nexus Test
The significant nexus test originated in Justice
Rehnquist’s opinion in SWANCC.154 The Riverside Bayview
Court failed to mention the term “significant nexus” and
concluded that the Corps’ jurisdiction over adjacent wetlands
was reasonable under agency deference.155 In SWANCC,
however, Justice Rehnquist noted that “[i]t was the significant
nexus between the wetlands and ‘navigable waters’ that
informed our reading of the CWA in Riverside Bayview.”156 This
“significant nexus” was one of three potential definitions of the
requisite link suggested by the SWANCC Court, which never
decided upon one definition.157 Therefore, as read by SWANCC,
the significant nexus of the property at issue in Riverside
Bayview was a factor permitting that Court to hold that agency
deference was appropriate.158 In contrast, the Court in
SWANCC held that the property at issue lacked this nexus, but
the Court’s holding did not turn on this determination.159
Instead, the Court concluded that an expanded definition of
“navigable waters” to include isolated ponds would rob the
term “navigable” of any effect.160 Rehnquist also concluded that
the constitutional questions generated by the property’s
isolated, intrastate nature required a clear intent from
154
SWANCC, 531 U.S. 159, 167 (2001).
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985).
The Riverside Bayview Court recognized that agency deference, under Chevron, was
the appropriate standard for evaluating the Corps’ wetlands jurisdiction. Id.
156
SWANCC, 531 U.S. at 167.
157
Rehnquist described the requisite link in different parts of the opinion as
“wetlands ‘inseparably bound up with the “waters” of the Unites States,’” “wetlands
that actually abutted on a navigable waterway,” and wetlands possessing a “significant
nexus” with navigable-in-fact waters. Id. at 165-67; see also Verchick, supra note 65, at
865 (“In distinguishing Riverside [Bayview from] its current case, the SWANCC
majority described ‘adjacent’ waters in various ways . . . . But however one defined the
critical link to navigable waters, the Court was sure it was absent from those Illinois
gravel pits.”).
158
SWANCC, 531 U.S. at 167.
159
Id. The Court’s determination, in fact, turned on the effect of the Migratory
Bird Rule on “navigable waters” and the constitutional questions raised by the isolated,
intrastate nature of the property at issue. Id. at 171-72.
160
Id. at 172 (“We cannot agree that Congress’ separate definitional use of the
phrase ‘waters of the United States’ constitutes a basis for reading the term ‘navigable
waters’ out of the statute.”).
155
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Congress to uphold the Corps’ jurisdiction.161 Thus, the
SWANCC holding rested on an unwillingness to misconstrue
“navigable” and a belief that the property at issue in that case
was invoking the outer limits of Congress’ power.
Justice Kennedy created the significant nexus test out
of a factor from SWANCC’s reading of Riverside Bayview.162
These cases, however, relied on other factors to reach their
conclusions. While Riverside Bayview rested on agency
deference, SWANCC denied the Corps’ jurisdiction based on
congressional intent and constitutional implications.163 In the
following subsections, this Note will suggest the impropriety of
the significant nexus test, due to its failures as a matter of
congressional intent, ambiguity, and economic efficiency.
B.
The Significant Nexus Test Versus Congressional
Intent and Legislative History
The significant nexus test addresses the congressional
intent examined in SWANCC and Riverside Bayview by
requiring courts to assess the nexus in terms of the statute’s
goals and purposes.164 Three questions, however, arise over
whether this assessment is actually a furtherance of Congress’
intent. First, the test’s consideration of the CWA’s initial “goals
and purposes” leaves no room for consideration of subsequent
legislative history.165 Second, the test defeats Congress’ intent
to provide broad federal regulatory authority because the test
requires a “significant nexus” as a condition precedent to any
161
SWANCC, 531 U.S. at 172 (“Where an administrative interpretation of a
statute invokes the outer limits of Congress’ power, we expect a clear indication that
Congress intended that result.”).
162
Justice Kennedy introduces the concept of a “significant nexus,” without
any context beyond stating its “[c]onsisten[cy] with SWANCC and Riverside Bayview
and with the need to give the term ‘navigable’ some meaning.” Rapanos, 126 S. Ct. at
2248 (Kennedy, J., concurring). The SWANCC Court’s reading of the Riverside Bayview
opinion, however, was flawed, because Riverside Bayview upheld the Corps’ jurisdiction
based on agency deference, and never mentioned the term “significant nexus.” United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 138-39 (1985). Therefore, the
“significant nexus” in Riverside Bayview was, at most, only a factor in that Court’s
holding.
163
SWANCC, 531 U.S. at 171-72; see also Rapanos, 126 S. Ct. at 2248
(Kennedy, J., concurring).
164
Rapanos, 126 S. Ct. at 2248 (Kennedy, J., concurring) (“The required nexus
must be assessed in terms of the statute’s goals and purposes.”).
165
Id. Kennedy’s annunciation of the significant nexus test mentions that
courts should consider the CWA’s goals and purposes, but does not mention whether
the 1977 congressional acquiescence should be considered. Id.
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consideration of congressional intent.166 Finally, the test
misleads courts into disregarding the part of the test calling for
an assessment of congressional intent.167
Although the significant nexus test recognizes
congressional intent, this test abandons consideration of the
CWA’s legislative history. In CWA jurisprudence, the CWA’s
legislative history is just as important as the initial goals and
purposes of Congress.168 While Congress thoroughly considered
the CWA before its enactment in 1972, the congressional
acquiescence to the Corps’ jurisdiction in 1977 provided
perhaps a more focused analysis on wetlands preservation.169
Both houses debated proposals for a more limited Section 404
jurisdiction,170 and the House passed a bill limiting the Corps’
jurisdiction, but the old definition was ultimately retained.171
Without considering these deliberations, courts may ignore
specific evidence of express congressional intent acknowledging
the validity of the Corps’ interpretation of its jurisdiction.172
Therefore, the absence of consideration for legislative history in
the significant nexus test detracts from a court’s ability to
166
Id. (“The required nexus must be assessed in terms of the statute’s goals
and purposes.”).
167
Though courts have implicitly followed congressional intent since Rapanos,
the omission of any discussion of congressional intent within these decisions could
prove troublesome. This omission would be troublesome because it might cause future
courts to disregard the assessment of congressional intent, even though the significant
nexus test explicitly calls for an assessment of this intent. See N. Cal. River Watch v.
City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007); United States v. Johnson,
467 F.3d 56, 59 (1st Cir. 2006); United States v. Fabian, No. 2:02-CV-495, 2007 WL
1035078, at *15 (N.D. Ind. Mar. 29, 2007); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co.,
469 F. Supp. 2d 803, 824 (N.D. Cal. 2007); United States v. Evans, No. 3:05 CR 159 J
32HTS, 2006 WL 2221629, at *21-22 (M.D. Fla. Aug. 2, 2006).
168
Congress’ intent through its 1977 acquiescence to the broader definition of
the Corps’ jurisdiction should be just as important to a court’s analysis as Congress’
original intent behind the act. See Riverside Bayview, 474 U.S. at 137-38 (discussing
the importance of the congressional acquiescence to the Corps).
169
See id. at 136-37 (discussing the congressional acquiescence after
arguments were made for and against a narrower interpretation of jurisdiction).
170
Section 404 jurisdiction refers to the Corps’ jurisdiction to issue or deny
permits to deposit dredge or fill material on “waters of the United States.” ZINN &
COPELAND I, supra note 27, at 6.
171
Riverside Bayview, 474 U.S. at 137. The House bill would have narrowed
the Corps’ jurisdiction to govern only wetlands that were navigable-in-fact. See H.R.
3199, 95th Cong., at 80-81, 102-04 (1977). The Joint Conference Committee, however,
retained the broad definition of jurisdiction, allowing the Corps to continue
interpreting the CWA’s language—“waters of the United States.” See S. 1952, 95th
Cong., at 63-76 (1977).
172
The 1977 congressional acquiescence to the Corps’ jurisdiction presents the
only moment in CWA history when Congress has acknowledged with approval the
Corps’ past interpretations of its jurisdiction. United States v. Pozsgai, 999 F.2d 719,
729 (3d Cir. 1993); Riverside Bayview, 474 U.S. at 137-38.
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analyze all the factors that may have contributed to Congress’
intent behind the CWA.
The significant nexus test raises a second congressional
intent issue concerning the worth of this intent when a
significant nexus is a condition precedent.173 By requiring a
significant nexus before any analysis of legislative intent, this
test immediately imposes a burden on the Corps to prove that
the lands at issue “significantly affect the chemical, physical,
and biological integrity” of navigable-in-fact waters.174 In
contrast, the congressional “goals and purposes” that must be
considered in light of the “significant nexus” support broad
federal authority and seem to contradict any judicial
requirement beyond the Corps’ obligation to reasonably
construe the CWA.175 Therefore, Justice Kennedy’s test will
consider congressional intent once the Corps has cleared a
much higher hurdle than Congress intended.176 This procedure
is far from a thorough and deferential evaluation of
congressional intent.
The third issue the significant nexus test presents is
whether courts will erode the relevancy of congressional intent
given its limited role in many of the lower court cases since
Rapanos.177 To an extent, congressional intent has been
mentioned and then quickly disregarded in the cases since
Rapanos.178 As pointed out below, the lack of consideration for
173
“The required nexus must be assessed in terms of the statute’s goals and
purposes.” Rapanos, 126 S. Ct. at 2248 (Kennedy, J., concurring). This statement
indicates that courts must first find the “significant nexus,” and then assess the nexus
according to Congress’ intent behind the CWA.
174
Id. at 2248.
175
Congress evinced its intent that CWA jurisdiction be “the broadest possible
constitutional interpretation unencumbered by agency determinations which have been
made or may be made for administrative purposes.” S. REP. NO. 92-1236, at 144 (1972)
(Conf. Rep.), as reprinted in 1972 U.S.C.C.A.N. 3776, 3822. This broad interpretation of
federal jurisdiction resulted from the failures of states to implement their own
programs. S. REP. NO. 92-414, at 1-2 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3675 (“[M]any states do not have approved standards. Officials are still working to
establish relationships between pollutants and water uses. Time schedules for
abatement are slipping away because of failure to enforce, lack of effluent controls, and
disputes over Federal-State standards.”).
176
Id.
177
See N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th
Cir. 2007); United States v. Johnson, 467 F.3d 56, 59 (1st Cir. 2006); United States v.
Fabian, No. 2:02-CV-495, 2007 WL 1035078, at *15 (N.D. Ind. Mar. 29, 2007); Envtl.
Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 824 (N.D. Cal. 2007); United
States v. Evans, No. 3:05 CR 159 J 32HTS, 2006 WL 2221629, at *21-22 (M.D. Fla.
Aug. 2, 2006).
178
See N. Cal. River Watch, 496 F.3d at 999-1000 (briefly mentioning Justice
Kennedy’s requirement to assess congressional goals and purpose, but failing to
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congressional intent in these cases may be irrelevant because
lower courts using the ambiguous significant nexus test have
consistently supported Congress’ intent without explicit
discussion.179 The omission of such discussion, however, could
prove troublesome for congressional intent if future courts
disregard the test’s assessment of goals and purposes
completely and focus solely on the existence of a nexus.180 If
such cases arose, courts would be deciding the Corps’
jurisdiction solely based on a scientific judgment, which the
Corps is better equipped to make than a court.181 Therefore, the
significant nexus test has led lower courts to briefly discuss
congressional intent, but the brief nature of this discussion
may cause future courts to abandon any consideration of this
intent.
C.
The Ambiguity of the Significant Nexus Test
A profound question surrounds the significant nexus
test: What really is a “significant nexus?” Lower courts are now
mention the CWA’s goals and purposes again); Johnson, 467 F.3d at 59 (discussing
Justice Kennedy’s significant nexus test and omitting any mention of assessing the
goals and purposes of the Clean Water Act); Fabian, 2007 WL 1035078, at *15 (same);
Envtl. Prot. Info. Ctr., 469 F. Supp. 2d at 824 (discussing Justice Kennedy’s test
without referring to his assessment of congressional intent); Evans, 2006 WL 2221629,
at *21-22.
179
N. Cal. River Watch, 496 F.3d at 999-1000 (upholding the Corps’
jurisdiction despite limited discussion of congressional intent); Fabian, 2007 WL
1035078, at *15 (holding the wetlands at issue subject to the CWA despite brief
discussion of congressional intent); Envtl. Prot. Info. Ctr., 469 F. Supp. 2d at 824
(upholding CWA jurisdiction under Kennedy’s standard despite no mention of
congressional intent); Evans, 2006 WL 2221629 at *23 (same).
180
Frank H. Easterbrook, Text, History, and Structure in Statutory
Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 69-70 (1994).
Judges are overburdened generalists, not philosophers or social scientists.
Methods of interpretation that would be good for experts are not suitable for
generalists. Generalists should be modest and simple. While recognizing that
specialists might produce a more nuanced approach, generalists must see the
process and error costs are much higher when they try to do the same thing.
Id. If future courts disregard congressional intent, these courts would ignore an
intended element of the significant nexus test, and reach their holdings based solely on
a scientific judgment. This would be troublesome because experts are better at making
scientific decisions than courts. Id.
181
The Corps is better equipped to make decisions concerning the existence of
a nexus because the Corps’ day-to-day activities involve making scientific judgments,
and because the Corps issues a manual defining which wetlands fall under its
jurisdiction. See discussion infra Part IV.D; see also Easterbrook, supra note 180, at 6970.
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asking this question, yet few reach a consistent definition.182
Justice Kennedy explains that, in terms of wetlands, they must
“significantly affect the chemical, physical, and biological
integrity” of navigable-in-fact waters.183 Kennedy further allows
establishment of a nexus for adjacent wetlands when the Corps
can establish adjacency to navigable-in-fact waters.184 In the
case of adjacency to non-navigable waters, however, “[a]bsent
more specific regulations . . . the Corps must establish a
significant nexus on a case-by-case basis.”185 While the Ninth
Circuit found no trouble in holding that a man-made levee does
not bar a significant nexus between a wetland and a river,186 a
Texas District Court entirely dismissed the significant nexus
test.187 The district court complained that Justice Kennedy
failed to provide sufficient details to resolve the ambiguity of a
“significant nexus.”188 Thus, there is great potential for
disparate outcomes in the practical application of the
significant nexus test. In addition, the ambiguity of the
significant nexus test allows Justice Kennedy, its creator, to
command a majority of the Supreme Court on any conclusion
he reaches regarding the existence of a significant nexus.189
182
See N. Cal. River Watch, 496 F.3d at 1000 (concluding that a pond held a
significant nexus despite minimal discussion of the significant nexus test); Johnson,
467 F.3d at 59 (discussing the ambiguous nature of the significant nexus test); United
States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006) (“Because
Justice Kennedy failed to elaborate on the ‘significant nexus’ required, this Court will
look to the prior reasoning in this circuit.”).
183
Rapanos, 126 S. Ct. at 2248 (Kennedy, J., concurring). Beyond the subject
of wetlands, the application of the significant nexus requirement to determine Corps
jurisdiction is likewise unclear, because Kennedy fails to explain whether or not his
test is an exception applicable only to wetlands. See id. at 2236-52.
184
Id. at 2249.
185
Id.
186
N. Cal. River Watch, 496 F.3d at 1000. The facts in River Watch indicated
several hydrologic connections between the waters at issue and “waters of the United
States” despite the existence of the levee, so the Ninth Circuit had no trouble declaring
the existence of a “significant nexus.” Id. Even this court, however, did not define
“significant nexus.” See id.
187
Chevron Pipe Line Co., 437 F. Supp. 2d at 613.
188
Id. The court also stated its disapproval for the “significant nexus” test. Id.
(“Justice Kennedy . . . advanced an ambiguous test—whether a ‘significant nexus’
exists to waters that are/were/might be navigable. This test leaves no guidance on how
to implement its vague, subjective centerpiece. That is, exactly what is ‘significant’ and
how is ‘nexus’ determined?”) (citations omitted). The court further stated, that
“[b]ecause Justice Kennedy failed to elaborate on the ‘significant nexus’ required, this
Court will look to the prior reasoning in this circuit.” Id.
189
This conclusion assumes that Justices Scalia, Thomas, Roberts, and Alito
will continue to adhere to the plurality test and that Justices Stevens, Ginsburg,
Breyer, and Souter will continue to adhere to the agency deference approach. On this
issue, the Seventh Circuit commented, in most cases “any conclusion that Justice
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Thus, on the Supreme Court at least, the ambiguity of the
significant nexus test gives Justice Kennedy unitary power
over most cases involving federal authority over wetlands.190
Therefore, the ambiguity of the significant nexus test presents
a challenge to its practical application.
D.
The Necessity and Cost Implications of the Significant
Nexus Test
The significant nexus test suffers further by creating
the same standard as agency deference but with additional
procedural hurdles.191 To its credit, the test reaches the same
result as the plurality in Rapanos, while suggesting a more ecofriendly standard for evaluating the Corps’ jurisdiction.192 As
the plurality disapprovingly notes, however, “Justice Kennedy
tips a wink at the agency, inviting it to try its same expansive
reading again.”193 This “wink” means that, although the
significant nexus test may be different in form from an agency
deference approach, the practical results of employing the two
tests will almost always be the same.194 In fact, nearly all of the
lower courts applying the significant nexus test have
Kennedy reaches [with respect to] federal authority over wetlands will command the
support of five Justices.” United States v. Gerke Excavating, Inc., 464 F.3d 723, 725
(7th Cir. 2006).
190
The exception, as pointed out in Gerke, would occur in the case of a “slight
surface hydrological connection,” allowing the Rapanos plurality and dissenters to vote
to uphold federal jurisdiction, but the connection is too small for Justice Kennedy to
consider that a “significant nexus” exists. Id.
191
The test is essentially the same standard as agency deference because most
wetlands where the Corps’ jurisdiction would be reasonable also have a “significant
nexus” to traditionally navigable waters. Rapanos, 126 S. Ct. at 2264 (Stevens, J.,
dissenting). Though “significant nexus” is an ambiguous term, most lower courts since
Rapanos have upheld the Corps’ jurisdiction using this test. See N. Cal. River Watch,
496 F.3d at 1000; United States v. Johnson, 467 F.3d 56, 59 (1st Cir. 2006); United
States v. Fabian, No. 2:02-CV-495, 2007 WL 1035078, at *15 (N.D. Ind. Mar. 29, 2007);
United States v. Evans, No. 3:05 CR 159 J 32HTS, 2006 WL 2221629, at *21-22 (M.D.
Fla. Aug. 2, 2006). Justice Stevens further recognizes, “Justice Kennedy’s ‘significant
nexus’ test will probably not do much to diminish the number of wetlands covered by
the [CWA] in the long run.” Rapanos, 126 S. Ct. at 2264 (Stevens, J., dissenting).
192
Rapanos, 126 S. Ct. at 2264 (Stevens, J., dissenting). While a more ecofriendly standard than the plurality test is hardly an accomplishment, the significant
nexus test does assess the goals and purposes of the CWA. See id. at 2248 (Kennedy, J.,
concurring). These goals and purposes include seeking “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a).
193
Rapanos, 126 S. Ct. at 2235 n.15 (plurality opinion).
194
Id.
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eventually “deferred” to the Corps’ interpretation of the CWA.195
Two practicalities, however, are different beyond the similar
results in court holdings. First, the significant nexus test
imposes additional costs for property owners who must assess
their properties both in terms of the Corps’ regulations and
under a new judicial standard.196 Second, the significant nexus
test creates uncertainty for a property owner who either does
not understand the meaning of “significant nexus” or does not
know of the additional judicial definition.197
The costs of hiring wetlands experts, known as
hydrologists, to assess property will increase under the
significant nexus test.198 Usually, a developer will consult such
a hydrologist before filling a plot including potential wetlands
in order to determine whether the wetlands meet the Corps’
existing regulations for jurisdiction.199 In Rapanos, the property
owner asked a Michigan Department of Natural Resources
inspector to look over the site and discuss the feasibility of
195
See N. Cal. River Watch, 496 F.3d at 1000; Johnson, 467 F.3d at 59; United
States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006); Fabian, 2007 WL
1035078, at *15; Evans, 2006 WL 2221629, at *21-22.
196
Property owners must pay for experts to assess their lands to determine
compliance with the Corps’ regulations, and then must pay for further assessments in
the event they choose to challenge the Corps’ jurisdiction to deny their permits.
197
A property owner wishing to challenge the Corps’ jurisdiction to deny a
permit cannot be expected to understand the judicially-constructed meaning for
“significant nexus.” Rapanos, 126 S. Ct. at 2264-65 (Stevens, J., dissenting).
198
If the significant nexus test becomes the standard for wetlands
jurisdiction, property owners will be forced to further employ wetlands experts to
evaluate the property for compliance with this additional test.
199
See 33 C.F.R. § 328.3 (2006). A wetlands manual provided by the Corps
further advises property owners of the following qualities that confer jurisdiction on
the Corps:
(1) prevalence of plant species typically adapted to saturated soil conditions,
determined in accordance with the United States Fish and Wildlife Service’s
National List of Plant Species that Occur in Wetlands;
(2) hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient
time during the growing season to become anaerobic, or lacking in oxygen in
the upper part; and
(3) wetland hydrology, a term generally requiring continuous inundation or
saturation to the surface during at least five percent of the growing season in
most years.
Wetlands Research Program Technical Report, Y-87-1, 9-10 (Jan. 1987), available at
http://citeseer.ist.psu.edu/617377.html
[hereinafter
Technical
Report].
These
regulations provide precise, scientifically-determined definitions for the Corps’ exercise
of jurisdiction. Therefore, these regulations provide adequate limits on the Corps’
jurisdiction, supply definitions capable of a lay person’s understanding, and should not
be supplanted by a judicial construction like the significant nexus test. Rapanos, 126 S.
Ct. at 2264 (Stevens, J., dissenting).
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building a shopping center.200 The government also used an
expert to testify at trial on the ecological functions of the
wetlands at issue.201 Hydrologists are a necessary and
indispensable part of any CWA case, but their work is not
cheap.202 Instead of assisting the developers with this burden,
however, the significant nexus test increases the burden by
imposing additional work on the hydrologists.203 If, indeed, the
significant nexus test is more than “a wink to the agency,” the
hydrologist must first assess whether the property contains the
applicable plant species, the soil, and inundation or saturation
of water.204 The hydrologist must then assess whether the
property significantly affects the chemical, physical, or
biological integrity of navigable-in-fact waters.205 If this test is
meant to reduce the burdens of overreaching jurisdiction by the
federal government, it does so by burdening the individual
property owner with higher costs of both wetlands experts and
attorneys fees to make the necessary determinations.206 If,
instead, the standard is meant to provide executive agencies
with a workable definition of what they can regulate, the test
again fails by imposing greater costs on the agencies to make
these same determinations.207 As Justice Stevens points out,
these costs are exactly what Riverside Bayview attempted to
avoid.208 Therefore, the dual standard of the significant nexus
200
Id. at 2253.
Id.
202
The cost of hiring a hydrologist is comparable to the cost of hiring any
other expert. For example, the Anoka Conservation District, a Minnesota nonregulatory state government subdivision, provides “water monitoring services”
to private landowners at costs ranging from $800 to $2700. Anoka Conservation
District’s Services Guide for 2007: Routine Water Monitoring Services,
http://www.anokaswcd.org/info/2007_fee_schedule.pdf.
203
Experts must additionally assess land to determine compliance with the
significant nexus test, whereas they would otherwise assess wetlands based only on the
standards in the Corps’ manual. See Technical Report, supra note 199.
204
Id.
205
Rapanos, 126 S. Ct. at 2248 (Kennedy, J., concurring).
206
Rapanos, 126 S. Ct. at 2264-65 (Stevens, J., dissenting) (“Justice
Kennedy’s approach will have the effect of creating additional work for all concerned
parties.”); see also Easterbrook, supra note 180.
207
Agencies, such as the Corps, will have the same additional costs as
property owners of hiring attorneys and wetlands experts to assess the additional
implications of the significant nexus test’s requirements. For the Corps, this burden
will be especially significant given its currently extensive involvement in several highprofile projects. See discussion infra note 213.
208
Rapanos, 126 S. Ct. at 2265 (Stevens, J., dissenting) (“And the Corps will
have to make case-by-case . . . jurisdictional determinations, which will inevitably
increase the time and resources spent processing permit applications. These problems
are precisely the ones that Riverside Bayview’s deferential approach avoided.”).
201
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test creates unnecessarily high costs for private property
owners and the federal government that could be lowered by
adhering to agency deference.209
The significant nexus test also adds greater uncertainty
to the permit process for both property owners and the Corps.
The Corps’ definitions manual is extensive but not legal.210 This
allows a curious property owner to decipher its language as he
chooses. In contrast, the significant nexus test proposes a legal
standard for evaluating federal jurisdiction over wetlands,
which would prevent or at least make it difficult for a
layperson to discover on his own whether his property includes
wetlands.211 In addition, this test adds to both sides the
uncertainty of increased litigation.212 If the significant nexus
test is, in substance, the same as agency deference, why
provide property owners an added incentive to take these
matters to court under an illusory hope the Corps will be
unable to prove a “significant nexus?” From the Corps’
perspective, the significant nexus test burdens a government
agency, which is already overburdened in other areas, with
increased litigation.213 Thus, the additional costs and
209
The significant nexus test creates both additional litigation and expert fees
that would not be incurred with the agency deference approach. See discussion infra
Part V.B. In addition, there are further process and error costs associated with
increased judicial determinations. See Easterbrook, supra note 180.
210
The Corps issues this manual to provide guidance to property owners on
the terms of 33 C.F.R. § 328.3. See Technical Report supra note 199.
211
Rapanos, 126 S. Ct. at 2265 (Stevens, J., dissenting) (“Developers wishing
to fill wetlands adjacent to ephemeral or intermittent tributaries of traditionally
navigable waters will have no certain way of knowing whether they need to get § 404
permits or not.”).
212
With agency deference, the outcome would be more certain because the
Corps’ jurisdiction would be upheld, so long as its construction of the CWA was
reasonable. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985).
213
The Corps has recently taken significant stakes in the rebuilding efforts
within Iraq and Afghanistan, and the clean-up after Hurricane Katrina. While the
cost of litigation is unlikely to make a difference in these areas, the costs incurred
by litigation could always be used to assist with other projects in the absence of
the litigation. See generally Press Release, Gerry J. Gilmore, American Forces
Press Service, U.S. General: Afghan Road, Electricity Projects Move Ahead, Oct. 18,
2006, http://www.defenselink.mil/News/NewsArticle.aspx?ID=1676 (discussing the
Corps’ $170 million investment in construction of infrastructure within Afghanistan);
Press Release, Norris Jones, U.S. Army Corps of Eng’rs., Baghdad Counts on Local
Improvements, Dec. 4, 2006, http://www.grd.usace.army.mil/news/releases/NR06-1204.html (discussing 150 projects worth $500 million in Iraq for which the Corps
provides oversight); Press Release, White House Office of the Press Secretary, Press
Briefing on Gulf Coast Rebuilding, Aug. 22, 2006, http://www.whitehouse.gov/news/
releases/2006/08/20060822-5.html (officials from the Office of Gulf Coast Rebuilding,
FEMA, and the Corps discussing the rebuilding costs for parts of Louisiana and
Mississippi after Hurricane Katrina).
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uncertainty associated with the significant nexus test suggest
courts should rethink using this test.
E.
Post-Rapanos Judicial Treatment of the Significant
Nexus Test
The significant nexus standard will control future cases
unless a new standard is enunciated. As Justice Kennedy will
submit the fifth and deciding vote on most Supreme Court
cases involving wetlands jurisdiction, the only wetlands over
which this justice will not provide the controlling rule of law
will be: (1) all continuous, yet slight, surface connections to
navigable waters214 and (2) Justice Kennedy’s own property.215
As Justice Stevens notes, and as subsequent lower courts’
opinions have shown, the practical results to the environment
and the litigants of the significant nexus test are negligible in
comparison with an agency deference approach.216 The costs
and uncertainty that follow as a necessary result of the test’s
ambiguity, however, create powerful arguments against the
test’s merit.217 Therefore, the significant nexus test may be the
present standard for federal wetlands authority, but the
additional costs and uncertainty this test creates suggest
agency deference could more efficiently accomplish the same
results.
V.
THE AGENCY DEFERENCE APPROACH
Agency deference is the most appropriate standard for
CWA jurisdiction. In Chevron, the Supreme Court recognized
that cases concerning administrative agencies establish
principles of law in areas where judges are not typically
experts.218 Thus, courts must defer to the agency’s construction
of a statute when that construction is reasonable.219 This
214
United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006).
One would hope Justice Kennedy would choose to recuse himself if such a
matter arose.
216
Rapanos, 126 S. Ct. at 2264 (Stevens, J., dissenting) (“Justice Kennedy’s
‘significant nexus’ test will probably not do much to diminish the number of wetlands
covered by the Act in the long run.”).
217
See discussion supra Part IV.D.
218
See Rapanos v. United States, 376 F.3d 629, 640 (6th Cir. 2004).
219
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984).
The Court instructed:
215
First, always, is the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end of
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interpretation of agency jurisprudence was not present when
the CWA was passed in 1972.220 The Riverside Bayview and
SWANCC decisions, however, each recognize the importance of
this mechanism.221 Moreover, deference makes economic sense,
saving time and money that would be unnecessarily wasted on
a judicial inquiry into a matter best reserved to experts in the
particular field.222 Although skeptics argue that deference gives
too much authority to agencies and opens the door to the
possibility of overreaching, several checks, including judicial
intervention when an agency’s interpretation is unreasonable,
prevent these fears from reaching fruition.223 Therefore, agency
deference should be applied to the exclusion of the plurality
and significant nexus tests in cases concerning federal
authority over wetlands.
A.
The History of the Agency Deference Approach
Since the inception of administrative agencies in the
late nineteenth century, courts have deferred to agencies’
the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise question at issue,
the court does not simply impose its own construction on the statute, as
would be necessary in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.
Id. at 842-43 (footnotes omitted).
220
Chevron was decided in 1984. Id.
221
The Riverside Bayview Court reached its holding based on agency
deference. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985).
The SWANCC Court recognized that agency deference would normally be the standard
of review for the Corps’ jurisdiction, if not for the “heightened concern” resulting from
the “constitutional questions” in that case. SWANCC, 531 U.S. 159, 172-73 (2001).
222
Rapanos, 126 S. Ct. at 2264-65 (Stevens, J., dissenting).
In view of the breadth of federal regulatory authority contemplated by the
[CWA] itself and the inherent difficulties of defining precise bounds to
regulable waters, the Corps’ ecological judgment about the relationship
between waters and their adjacent wetlands provides an adequate basis for a
legal judgment that adjacent wetlands may be defined as waters under the
[CWA].
United States v. Pozsgai, 999 F.2d 719, 729 (3d Cir. 1993); see also Easterbrook, supra
note 180. The judicial inquiry would be unnecessarily wasted because the same
result—upholding the Corps’ jurisdiction—could be reached simply by deferring to the
Corps’ jurisdiction. Under the agency deference approach, property owners could also
avoid uncertainty over whether the CWA gave the Corps’ jurisdiction over their land.
Rapanos, 126 S. Ct. at 2264-65 (Stevens, J., dissenting). For a more detailed discussion,
see infra Part V.B.
223
Pozsgai, 999 F.2d at 729.
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constructions of their statutory authority.224 In Chevron, the
Supreme Court noted the weight of these holdings, especially
when the regulatory interpretation at issue was considered
ambiguous.225 The Chevron Court then applied this precedent to
formulate a test: when a statute is “silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.”226 Courts that follow this position
recognize that judges are ill-equipped to issue policy-related
statutory definitions and to trust the elaborate system of
checks and balances that govern executive agencies.227 This is
the case because the federal government’s executive branch is
directly accountable to the public, while the agency is not.228
Since Chevron, courts have widely followed the Supreme
Court’s approach to agency interpretations of federal statutes
224
Webster v. Luther, 163 U.S. 331 (1896). The Webster Court, for example,
stated,
The practical construction given to an act of Congress, fairly susceptible of
different constructions, by one of the Executive Departments of the
government, is always entitled to the highest respect, and in doubtful cases
should be followed by the courts, especially when important interests have
grown up under the practice adopted.
Id. at 342. The Supreme Court also noted the deference owed to administrative
agencies in several other decisions before Chevron. See FEC v. Democratic Senatorial
Campaign Comm., 454 U.S. 27, 31-32 (1981) (“The interpretation put on the statute by
the agency charged with administering it is entitled to deference.”); NLRB v. Brown,
380 U.S. 278, 292 (1965) (“Of course due deference is to be rendered to agency
determinations of fact, so long as there is substantial evidence to be found in the record
as a whole.”); Burnet v. Chicago Portrait Co., 285 U.S. 1, 16 (1932) (“The familiar
principle is invoked that great weight is attached to the construction consistently given
to a statute by the executive department charged with its administration.”).
225
Chevron U.S.A., 467 U.S. at 843. On this issue, the Chevron Court
remarked, “[t]he judiciary is the final authority on issues of statutory construction and
must reject administrative constructions which are contrary to clear congressional
intent.” Id. at 843 n.9.
226
Id. at 843.
227
Verchick, supra note 65, at 861 (suggesting that agencies interpreting law
for a national program should favor their own views “over that of a single district or
appellate court”).
228
“Presidential control also leads to better political accountability.” Verchick,
supra note 65, at 857. Additionally,
Any president is likely to seek assurance that an unwieldy federal
bureaucracy conforms its actions to his or her basic principles. Any president
is likely to be concerned about excessive public and private costs. And any
president is likely to want to be able to coordinate agency activity so as to
ensure consistency and coherence . . . .
Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L.
REV. 1, 16 (1995), quoted in Verchick, supra note 65, at 855.
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and have referred to agency deference as Chevron deference.229
Thus, an agency’s constructions of the CWA still need only be
“rational” to be permissible.230
Since the adoption of the CWA, several Supreme Court
justices have employed agency deference to reach their
holdings. Chemical Manufacturers Association v. Natural
Resources Defense Council provides one of the first postChevron examples of agency deference used in connection with
the CWA.231 Upholding the EPA’s jurisdiction, the Supreme
Court held that an agency’s construction of the CWA need not
be the most permissible, but rather sufficiently rational to
prevent a court from substituting its judgment for that of the
agency.232
Next, Riverside Bayview became the first Supreme
Court case to use agency deference to address the Corps’
authority over wetlands.233 Courts have described the CWA as
“very complex.”234 These same courts, however, recognized that
agencies held broad jurisdiction under the CWA.235 Again
upholding an agency’s jurisdiction, the Riverside Bayview
Court held that the Corps’ definition of navigable waters was
reasonable as applied to adjacent wetlands.236 In the process,
229
Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, Md., 268 F.3d
255, 267 (4th Cir. 2001) (applying agency deference to the EPA’s interpretation of the
CWA); Pozsgai, 999 F.2d at 729-30 (deferring to the Corps’ construction of “water”
within the CWA); Chem. Mfrs. Ass’n v. NRDC, 470 U.S. 116, 125 (1985) (holding that
the EPA’s understanding of the CWA is entitled to “considerable deference”); Train v.
NRDC, 421 U.S. 60, 75, 87 (1975) (deferring to the EPA’s interpretation of the Clean
Air Act).
230
Piney Run Pres. Ass’n, 268 F.3d at 267; Pozsgai, 999 F.2d at 729; Chem.
Mfrs. Ass’n, 470 U.S. at 125.
231
Chem. Mfrs. Ass’n, 470 U.S. at 125. In this case, an EPA practice of issuing
fundamentally different factor variances, a practice on which congressional intent had
been silent, was challenged as exceeding the limits of its jurisdiction under the Clean
Water Act. Id. at 124.
232
Id. at 125.
This view of the agency charged with administering the statute is entitled to
considerable deference . . . to sustain it, we need not find that it is the only
permissible construction that EPA might have adopted but only that EPA’s
understanding of this very “complex statute” is a sufficiently rational one to
preclude a court from substituting its judgment for that of EPA.
Id.
233
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985).
Piney Run Pres. Ass’n, 268 F.3d at 267; Pozsgai, 999 F.2d at 729; Chem.
Mfrs. Ass’n, 470 U.S. at 125.
235
Piney Run Pres. Ass’n, 268 F.3d at 267; Pozsgai, 999 F.2d at 729; Chem.
Mfrs. Ass’n, 470 U.S. at 125.
236
Riverside Bayview, 474 U.S. at 139.
234
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the Court recognized that its review was “limited” by Chevron,
especially when express congressional intent counseled
deference to the Corps.237 The Riverside Bayview Court’s use of
agency deference also indicates that such deference is
necessary to preserve the Corps’ authority to interpret the
CWA, as this approach is the only position advocated in
Rapanos that allows courts to assess legislative history.238
Subsequently, several lower courts deferred to the Corps’
wetlands jurisdiction under the CWA.239 Therefore, the history
of agency deference indicates that this approach was the
standard for assessing wetlands jurisdiction before Rapanos.
B.
The Cost Implications of the Agency Deference Approach
The Corps’ wetlands manual provides the most efficient
method for determining CWA coverage in most cases. 240 This
manual includes a test—focusing on the present plant species,
the qualities of the soil, and the specific water connections
involved with the lands at issue—that provides a reasonable
method for determining which lands are covered without
additional litigation costs.241 Moreover, this test is
understandable to a layperson and therefore promotes both
efficiency and resource allocation.242 One may argue that a
237
Id. at 131 (“An agency’s construction of a statute it is charged with
enforcing is entitled to deference if it is reasonable and not in conflict with the
expressed intent of Congress. Accordingly, our review is limited to the question
whether it is reasonable, in light of the language, policies, and legislative history of the
[CWA] for the Corps to exercise jurisdiction . . . .”).
238
Id. at 131-32. This Court recognized that an agency may look to underlying
policies of its statutory grant and legislative history in arriving at a reasonable
construction of its jurisdiction. Therefore, legislative history can be used to assess an
agency’s jurisdiction under the agency deference approach, but not under either the
plurality or significant nexus tests. Because the congressional acquiescence to the
broader definition of the Corps’ jurisdiction provides unique evidence of express
congressional intent, the agency deference approach becomes a necessity to preserving
the Corps’ intended jurisdiction. Id. at 132.
239
United States v. Deaton, 332 F.3d 698, 708 (4th Cir. 2003) (using agency
deference to uphold the Corps CWA jurisdiction); Baccarat Fremont Developers, LLC v.
U.S. Army Corps of Eng’rs, 425 F.3d 1150, 1155 (9th Cir. 2001) (employing the
Riverside Bayview Court’s test of an “adequate basis” for the Corps’ legislative
construction).
240
See Technical Report, supra note 199.
241
Id.
242
By using terms such as “prevalence of plant species,” “saturated soil,” and
“wetland hydrology,” as opposed to “significant nexus,” the Corps’ wetlands manual
provides a definition of its jurisdiction to property owners in terms that can be
understood by a layperson. In contrast, the term “significant nexus” is a judiciallycrafted term, which no court has precisely defined. Rapanos, 126 S. Ct. at 2264
(Stevens, J., dissenting). Since the property owner is better informed under agency
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property owner who wishes to determine the CWA’s
applicability to his land faces the fees from consulting wetlands
experts and attorneys, regardless of which test a court may
apply.243 The Corps’ manual, however, provides property owners
with a definite idea of wetlands for which the Corps can
regulate development, thereby reducing the risk that a
property owner will make an uninformed decision to expend
time and money.244 If courts adopt an additional judicial test,
the Corps’ manual will lose this function, and property owners
will have to pay for additional wetlands assessments and
attorneys costs out of the resulting uncertainty from the
additional test.245 Therefore, the agency deference approach is
the most preferable standard from an economic perspective
because it minimizes property owners’ costs and provides them
with certainty over which wetlands are regulated.
C.
The Existence of Adequate Checks and Balances
In addition to the Corps’ existing test within the
wetlands manual, there are other checks on the Corps’
authority. First, one might question whether the Corps
jurisdiction is even a controversial issue, as the Corps approves
more than 99% of approximately 85,000 permits submitted.246
deference, logical extension suggests the property owner will allocate his resources in a
more efficient manner under this approach than under an additional judicial test,
where additional factors create uncertainty about the wetlands manual’s definition of
the Corps’ jurisdiction.
243
The argument would be that a property owner must still consult wetlands
experts and attorneys regardless of which test the court applies for the Corps’
jurisdiction.
244
Technical Report, supra note 199. By focusing on the present plant species,
the qualities of the soil, and the specific water connections involved with the lands at
issue, the wetlands manual uses terms that property owners can understand, thereby
giving them a definite idea of which wetlands are regulated. See Rapanos, 126 S. Ct. at
2264 (Stevens, J., dissenting).
245
See Rapanos, 126 S. Ct. at 2264-65 (Stevens, J., dissenting). In order to
learn whether his property had a “significant nexus” to navigable-in-fact waters, a
property owner would have to retain an attorney, incurring significant costs. See WalMart Watch—Battle-Mart: Hiring an Expert, http://walmartwatch.com/battlemart/
go/cat/expert__testimony__whistleblower (last visited Nov. 11, 2007) (“Land use
attorneys can cost more than $275 per hour.”). In addition, a property owner would also
need to retain a wetlands expert, also known as a hydrologist, to evaluate the property
and to determine the existence of a significant nexus. Id.; see also discussion supra note
203.
246
See ZINN & COPELAND I, supra note 27, at 7. The Corps authorizes about
90% of these permits under a general permit where the Corps estimates the proposed
activity to have a minor impact. About 9% of these permits undergo a more detailed
evaluation, but the Corps usually denies only about 0.3% of total permits. Property
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WETLANDS JURISDICTION AFTER RAPANOS
379
Moreover, the EPA holds a veto power over every proposed
Corps permit, enabling the Agency to block any decision that
may result in jurisdictional overreach.247 Some commentators
claim the Fish and Wildlife Service (“FWS”) and other agencies
also hold unofficial veto powers over the Corps’ decisions and
exercise them through threats of delay.248 Structurally,
executive agencies are accountable to the executive branch,
which is accountable to the political system.249 Finally,
executive agencies also hold a duty of loyalty to Congress,
which creates laws and delegates authority to agencies.250 If
judicial tests and statutory constructions interfere with this
delicate system of checks and balances, courts may frustrate
the original goals of the CWA and its broad federal authority to
ensure comprehensive environmental legislation.251 Further,
existing restrictions placed on executive agencies by the
political system, the executive, and fellow environmental
agencies already provide oversight for the Corps’ jurisdiction.252
Therefore, adequate checks and balances suggest that courts
should adopt the agency deference approach with respect to
federal authority over wetlands.
owners typically withdraw approximately 5% of applications prior to permit decisions.
Id.
247
See id. at 7. The EPA, the only federal agency with a veto power over the
Corps’ permitting decisions, has used its veto power 11 times over the CWA’s thirtyyear history. Id.
248
See id. The Reagan, George H.W. Bush, and Clinton Administrations
attempted to reduce these unofficial veto powers in order to expedite the Section 404
program, but some critics claim these attempts did not completely fix the problems. Id.
249
Verchick, supra note 65, at 857; see also Elena Kagan, Presidential
Administration, 114 HARV. L. REV. 2245, 2347 (2001) (discussing the intricacies of
agency’s relationships with Congress, the President, and the judicial branch). In
addition, Congress in 1996 passed the Congressional Review Act (CRA), requiring
agencies promulgating most new rules to submit a report and a copy of the rule to each
House of Congress. Both houses then have the authority to disapprove a rule, even if
the rule has already gone into effect. For a detailed discussion of the CRA and its
legislative history, see generally Morton Rosenberg, Whatever Happened to
Congressional Review of Administrative Rulemaking?: A Brief Overview, Assessment,
and Proposal for Reform, 51 ADMIN. L. REV. 1051 (1999).
250
See supra note 249.
251
33 U.S.C. § 1251 (2000). The statute states that the purposes of the CWA
are “to restore and maintain the chemical, physical, and biological integrity of the
Nation’s waters.” Id. These goals would be frustrated by additional judicial tests, which
impede on the Corps’ authority to restore and maintain these waters. Rapanos, 126 S.
Ct. at 2264 (Stevens, J., dissenting).
252
See Verchick, supra note 65, at 857; ZINN & COPELAND I, supra note 27,
at 7.
380
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Environmental Effects of the Agency Deference Approach
Agency deference is also a superior standard from an
environmental policy perspective. This approach’s greatest
benefit to the environment is that it places most decisions
regarding environmental policy in the hands of the agency best
qualified to make the decisions.253 Thus, when a court assesses
an environmental agency’s interpretation of its governing
statute, the agency deference approach commands courts to
defer to the decision of the Corps, the EPA or the FWS, so long
as the decision is reasonable.254 In general, executive agencies
receive this deference because they benefit from scientific
expertise with respect to practical functions, like reducing
discharges of pollutants and preventing groundwater
contamination.255 The Corps has technical experience and
access to resources that no other agency or body of government
possesses, allowing it to make informed decisions about
environmental issues.256 In contrast, the Supreme Court rarely
hears cases involving environmental law or the Corps’
jurisdiction.257 Thus, the Corps, not courts, should be the
primary decision-makers on issues of environmental policy,
such as those issues involved with the Section 404 program.258
When the Corps’ jurisdiction is left as broad as possible under
the agency deference approach, fewer wetlands are
253
By deferring to the agency’s construction of a statute when its construction
is reasonable, courts allow agencies to make decisions based on their scientific
expertise. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 864-66 (1984); see also
Easterbrook, supra note 180, at 69-70 (discussing the inappropriateness of judges
deciding matters of scientific judgment).
254
See Chem. Mfrs. Ass’n. v. NRDC, 470 U.S. 116, 125 (1985); United States
v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985); Chevron, 467 U.S. at 84243; Train v. NRDC, 421 U.S. 60 75, 87 (1975); Piney Run Pres. Ass’n v. County
Comm’rs of Carroll County, MD, 268 F.3d 255, 267 (4th Cir. 2001).
255
Verchick, supra note 65, at 862-63.
The scientific expertise within the EPA and the Army Corps justifies, in part,
Congress’ [sic] decision to delegate administrative powers to those agencies.
The courts have also acknowledged the specialized expertise of many
agencies and have cited such expertise as a basis for deferring to
administrative judgments when cases are close.
Id.
256
Id.
Rapanos was the only case on the Court’s 2006 docket involving
environmental law or the Corps’ wetlands jurisdiction. See Rapanos, 126 S. Ct. at 2208.
Further, the Corps’ wetlands jurisdiction has only arisen before the Supreme Court
three times in the CWA’s thirty-year history. See id. See generally SWANCC, 531 U.S.
159 (2001); Riverside Bayview, 474 U.S. 121.
258
United States v. Pozsgai, 999 F.2d 719, 729 (3d Cir. 1993).
257
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WETLANDS JURISDICTION AFTER RAPANOS
381
categorically excluded from the Corps’ jurisdiction, and the
Corps considers more permits on a case-by-case basis.259
Considering that most scientifically qualified agencies on
environmental issues make most of the jurisdictional decisions
under the agency deference approach, this approach is the
superior standard for courts to review the Corps’ wetlands
jurisdiction from an environmental policy perspective.
VI.
CONCLUSION
The logic behind a proper approach to judicial
assessment of the Corps’ wetlands jurisdiction is not as
complicated as the sharp divisions within the Rapanos Court
seem to indicate. The plurality test presents an implausible,
inconsistent, and revisionist reading of the CWA’s history. This
test categorically excludes classes of wetlands and likely will
not gain widespread approval from lower courts.260 The
significant nexus test is an intermediate standard that most
courts now apply, but the ambiguous mechanics of this test
create uncertainty and fail to ultimately constrain the Corps’
jurisdiction.261 In contrast, the agency deference approach is a
standard that has worked for thirty years, reduces uncertainty,
leaves adequate checks and balances in place, and allows more
environmental decisions to be made by the most scientifically
qualified body.262 The Corps in Rapanos reasonably construed
the CWA; therefore, the Court should have deferred to its
construction and upheld jurisdiction. Likewise, future courts
should return to evaluating the Corps’ wetlands jurisdiction
under the agency deference approach without employing
additional judicial tests.
Brandon C. Smith†
259
This assertion is supported by the logical extension that the agency
deference approach would not categorically exclude wetlands failing to possess a
“significant nexus,” a “continuous surface connection” to “waters of the United States,”
or “relatively permanent, standing, or flowing bodies of water.” Rapanos, 126 S. Ct. at
2221, 2224, 2248.
260
See discussion supra Part III.
261
See discussion supra Part IV.
262
See discussion supra Part V.
†
I thank my parents, Steven and Nicolette Smith, for their love and
support. Further, I thank my great legal writing professor, Dr. James Brecher. Finally,
I thank Jennifer Williams, Lisa Miller, and the staff of the Brooklyn Law Review for
their invaluable assistance editing this Note.
The Electronic Communications
Privacy Act and Cell Location Data
IS THE WHOLE MORE THAN
THE SUM OF ITS PARTS?
I.
INTRODUCTION
Cellular phones permit law enforcement to identify
their users’ locations and track their movements.1 This is an
enormously powerful tool in the hands of police and
prosecutors, who have recently used the technology to solve
and prosecute high profile crimes.2 In New York City, the police
arrested a night club bouncer after calls from his cell phone
placed him near where the body of a murder victim was
dumped.3 In California, the evidence used to convict Scott
Peterson of murdering his wife included location data gleaned
from his cell phone that undermined his alibi.4 Perhaps more
importantly, other crimes have been prevented from
happening.5 In one case, a thief stole a woman’s car with her
child and her cell phone inside.6 The police were able to stop
1
See James X. Dempsey, Digital Search and Seizure: Updating Privacy
Protections to Keep Pace With Technology, in SEVENTH ANNUAL INSTITUTE ON PRIVACY
LAW: EVOLVING LAWS AND PRACTICES IN A SECURITY-DRIVEN WORLD 505 (PLI Pat.,
Copyrights, Trademarks, and Literary Prop. Course Handbook Series No. 8966, 2006).
This data is collectively referred to as “cell site data” or “cell site information” by
various cases and commentators. This Note will refer to data taken from the
transmissions of a cell phone that reveal the phone’s physical location as “cell location
data.” There are different types of this data, each of which has different features and
may require its own legal analysis. When referring to these specific types of cell
location data, this Note will use a term that indicates what type is being discussed. See
infra Part II.
2
Stephen V. Treglia, Trailing Cell Phones, N.Y. L.J., July 18, 2006, at 5.
3
Nancie L. Katz, Bouncer Pleads Not Guilty in Death of Graduate Student,
N.Y. DAILY NEWS, Mar. 23, 2006.
4
Diana Walsh & Stacy Finz, The Peterson Trial: Defendant Lied Often,
Recorded Calls Show Supporters Misled About Whereabouts, S.F. CHRON., Aug. 26,
2004, at B1.
5
Treglia, supra note 2.
6
Girl, 5, Found Safe as Man Steals Car, ROCKY MOUNTAIN NEWS, Apr. 22,
2004, at A18 [hereinafter Girl, 5]; see also Treglia, supra note 2 (citing this incident as
an example of how “cell phone mapping” has prevented crimes in progress).
383
384
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the car and rescue the child within thirty minutes by tracking
the woman’s cell phone.7 Yet with each increase in law
enforcement’s power to conduct surveillance comes an
increased concern for individual privacy. Numerous
commentators have expressed concern over the ease with
which the government has accessed data from individuals’ cell
phones that reveals their whereabouts and permits real-time
tracking.8
There is currently no federal statute that explicitly
strikes the balance between privacy and the needs of law
enforcement in the context of cell phone tracking.9 Moreover,
unless police surveillance discloses that the target was at home
when his or her cell phone transmissions were monitored, the
Fourth Amendment appears to provide no protection.10 It seems
that prior to August of 2005 law enforcement agencies
requested, and were routinely granted, the authority to access
cell location data with minimal judicial oversight.11 In that
month, a federal district court in New York, after soliciting an
amicus brief from privacy advocates, issued an opinion denying
the government’s application for access to an individual’s cell
location data and stated that it would not grant any such
application without a showing of probable cause.12 Since then, a
slew of district courts have considered whether the Electronic
7
Girl, 5, supra note 6.
See Dempsey, supra note 1, at 529, 537 (noting that until recently the
government routinely received cell site information on a less than probable cause
basis); JAY STANLEY, THE SURVEILLANCE-INDUSTRIAL COMPLEX: HOW THE AMERICAN
GOVERNMENT IS CONSCRIPTING BUSINESS AND INDIVIDUALS IN THE CONSTRUCTION OF A
SURVEILLANCE SOCIETY 14 (2004), available at http://www.aclu.org/FilesPDFs/
surveillance_report.pdf; Steven B. Toeniskoetter, Preventing a Modern Panopticon:
Law Enforcement Acquisition of Real-Time Cellular Tracking Data, 13 RICHMOND J.L.
& TECH. 16, 16 (2007); see also M. Wesley Clark, Cell Phones as Tracking Devices, 41
VAL. U. L. REV. 1413, 1413 (2006) (noting the advantages of cell phone tracking for law
enforcement); Stephanie Lockwood, Recent Development, Who Knows Where You’ve
Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators, 18
HARV. J.L. & TECH. 307, 311 (2004).
9
See Dempsey, supra note 1, at 533.
10
See infra notes 44-47 and accompanying text.
11
Dempsey, supra note 1, at 537.
12
In re Application of the United States for an Order (1) Authorizing the Use
of a Pen Register and a Trap and Trace Device and (2) Authorizing Release of
Subscriber Information and/or Cell Site Information (E.D.N.Y. I), 384 F. Supp. 2d 562,
563-64 (E.D.N.Y. 2005). At the very least, prior to E.D.N.Y. I, there were no published
opinions denying such applications. Because the names of the published cases are
extremely unwieldy, this Note will refer to the cases by the jurisdiction in which they
were decided. Where a single jurisdiction has produced more than one published
opinion, a Roman numeral will indicate the opinion’s chronological position within that
jurisdiction’s published opinions.
8
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THE ECPA AND CELL LOCATION DATA
385
Communications Privacy Act of 1986 (“ECPA”), taken together
with the Communications Assistance for Law Enforcement Act
of 1994 (“CALEA”) and the Stored Communications Act
(“SCA”), permits the government to compel a phone company to
disclose such information on a lesser showing than probable
cause, or whether the government must obtain a warrant to
access cell location data.13 A majority of the cases have held
that a warrant is required for the contested types of data,
although they have produced varying analyses of the issue.14
This Note argues that a warrant issued upon probable
cause is the appropriate form of authorization for law
enforcement to conduct certain types of surveillance made
possible by cell location data.15 To reach that conclusion, this
Note analyzes the leading opinions to date and concludes that
the government’s argument is irredeemably flawed. Part II of
this Note discusses the technology of cellular telephony, with a
special emphasis on the features of cellular phones that reveal
their users’ locations. Particular emphasis is placed on
identifying the different kinds of data that can be gleaned from
cell phone transmissions. Part III explains the statutory and
13
See, e.g., In re Application for Pen Register and Trap/Trace Device with
Cell Site Location Authority (Texas I), 396 F. Supp. 2d 747, 765 (S.D. Tex. 2005)
(denying government request); In re Application of the United States for an Order (1)
Authorizing the Use of a Pen Register and a Trap and Trace Device and (2) Authorizing
Release of Subscriber Information and/or Cell Site Information (E.D.N.Y. II), 396 F.
Supp. 2d 294, 295 (E.D.N.Y. 2005) (denying government request); In re Application of
the United States for an Order: (1) Authorizing the Installation and Use of a Pen
Register and trap and Trace Device, and (2) Authorizing Release of Subscriber and
Other Information (Texas II), 433 F. Supp. 2d 804 (S.D. Tex. 2006) (granting
government’s request); In re Application of the United States of America for an Order
Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or
Process, (2) Access to Customer Records, and (3) Cell Phone Tracking (Texas III), 441
F. Supp. 2d 816, 837 (S.D. Tex. 2006) (denying government request); In re Application
of the United States of America for an Order for Disclosure of Telecommunications
Records and Authorizing the Use of a Pen Register and Trap and Trace (S.D.N.Y. I),
405 F. Supp. 2d 435, 436 (S.D.N.Y 2005) (approving government request). For a
discussion of probable cause and the warrant requirement, see infra note 51.
14
This Note will confine its discussion, to the extent possible, to the opinions
of Magistrate Judge Smith in the Southern District of Texas (Texas I and Texas III),
and the single opinion of Magistrate Judge Gorenstein (S.D.N.Y. I). These opinions
offer the most cogent analyses of the competing theories. For a discussion of these
cases, see infra Part IV. As of this writing, the other cases that have rejected law
enforcement’s arguments include: In re Application of the United States of America for
an Order Authorizing the Disclosure of Prospective Cell Site Information (E.D. Wis.),
No. 06-Misc-004, 2006 WL 2871743, at *5 (E.D. Wis. Oct. 6, 2006); In re Application for
an Order Authorizing the Installation and use of a Pen Register and Directing the
Disclosure of Telecommunications Records for the Cellular Phone Assigned the
Number [Sealed] (Maryland III), 439 F. Supp. 2d 456, 456-57 (D. Md. 2006).
15
For a discussion of tracking devices and the probable cause requirement,
see infra note 51 and accompanying text.
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constitutional context of the “cell site cases.” This discussion
highlights the features of federal legislation that law
enforcement and privacy advocates have used in making their
respective arguments. Part IV analyzes the cases that have
considered law enforcement applications to obtain cell location
data and offers a critique of the analyses the cases have
produced. Part V concludes the Note by suggesting statutory
amendments that would remediate the ambiguities in the
statutes and address the policy concerns raised by warrantless
cell phone monitoring.
II.
TECHNOLOGICAL BACKGROUND
Wireless telephony operates through a network of cell
towers that emit radio frequencies capable of carrying the
human voice and other data.16 Cell towers operate much like a
conventional radio tower, but emit radio frequencies at a
comparatively low power.17 The same frequencies, therefore,
can be used by a nearby tower without having the signals from
one tower interfere with those of another.18 This innovation is
at the core of cellular technology, permitting many people in a
relatively small area to communicate using the same radio
frequencies.19 Because there will be a greater number of users
in densely packed urban areas than in rural and suburban
areas, cell towers are much closer together in big cities.20 The
cells themselves are thought of as hexagonal zones, with a cell
tower sitting wherever three hexagons meet.21 The spot at
which the cell tower sits is referred to as the “cell site.”22 Each
cell might therefore be serviced by six different towers, any one
or all of which could pick up the signal of a phone located
16
See Marshall Brain & Jeff Tyson, How Cell Phones Work, available at
http://www22.verizon.com/about/community/learningcenter/articles/displayarticle1/0,,
1008z1,00.html (last visited Sept. 8, 2007). The present controversy deals with police
surveillance via conventional wireless telephony and does not involve Global
Positioning Systems (“GPS”) technology. Although related, the legal questions those
technologies pose are distinct from the ones present in the cell location cases.
17
Id.
18
Id.
19
Id. Radio frequencies are a naturally limited resource. Id.
20
See Tom Farley & Mark van der Hoek, Cellular Telephone Basics, Jan. 1,
2006, http://www.privateline.com/mt_cellbasics/index.html.
21
Id.
22
Id.
2007]
THE ECPA AND CELL LOCATION DATA
387
within the cell.23 The area within a cell that is serviced by a
particular tower is a “cell sector.”24
Cell phones are in near-constant communication with
surrounding cell towers.25 When turned “on” a cell phone
automatically searches for the strongest signal available.26
Once the phone selects the best signal, it transmits the user’s
identifying data (the subscriber’s ten-digit phone number and a
thirty-two-digit number unique to the phone itself), so that the
subscriber’s network knows how to route incoming calls, and so
that the cell tower can “hand off” the user’s phone to another
tower if that tower can provide better reception.27 This process
is called “registration” and takes place every seven seconds.28
Data generated during registration (“registration data”) is one
of several kinds of cell location data that law enforcement
might use to locate an individual without listening in on any of
her communications.29 Cell site data, because it only identifies
the individual cell tower with which the phone is
communicating, can reveal only the general location of the
user.30 Other features of wireless telephony, however, permit
law enforcement to pinpoint the user with much greater
accuracy.
One of these features is the “facing.” The typical cell
tower has three sets of panels, each of which sends and receives
signals in a 120-degree arc.31 It is possible to determine which
set of panels, or “face” is communicating with a subscriber’s
cell phone, thereby indicating which third of the tower’s
circumference contains the target phone (“facing data”).32 Law
enforcement can also ascertain the strength of a cell phone
signal (“signal strength data”), which increases as the phone
23
Id.
Id.
25
Id.
26
Id.
27
Id.
28
Id. Registration establishes the “control channel,” the two frequencies the
phone and tower use to guide incoming and outgoing calls through the network. It is
important to note that the control channel does not carry any content of the
communications sent by the cell user. Even once the phone is registered, the phone
continues to send its identifying information every seven seconds, in part to make sure
that the hand off to another cell tower is seamless. See Texas I, 396 F. Supp. 2d at 75051.
29
See Texas I, 396 F. Supp. 2d at 751.
30
S.D.N.Y. I, 405 F. Supp. 2d at 449; see also Farley & van der Hoek, supra
note 20.
31
Farley & van der Hoek, supra note 20.
32
Id.
24
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gets nearer to the tower and decreases as it goes farther away.33
A cell phone’s location can be determined still more precisely by
a process called “triangulation.”34 Triangulation compares
information from multiple towers, measuring either the angle
at which the phone’s signal strikes the towers’ faces or the
difference in time it takes the signal to reach the different
towers.35 All of this data is produced as the phone registers and
reregisters, as well as at the beginning and end of each call
made and received (“initiation/termination data”).36
There is one final aspect of the technology that is
crucially important: cell phone companies store all this data.37
Law enforcement may request that a service provider turn over
the cell location data it has stored among its subscriber records
(“historical data”) or that the service provider turn over records
on an ongoing basis (“prospective data”).38 It is this latter type
of data that permits real-time tracking of individuals.39
In sum, cell location data can reveal a user’s position
with varying degrees of precision depending on the
concentration of cell towers in a given area and the type of
information that law enforcement is able to access.40 Law
enforcement can request data sets defined by the precision with
which they can locate the subject phone (cell site, facing, signal
strength, and triangulation data) or based on the process that
generated the signals (initiation/termination data and
33
34
See Brain & Tyson, supra note 16.
Lockwood, supra note 8, at 308 (cited in Texas I, 396 F. Supp. 2d at 751
n.5).
35
Id. at 308-09. It is important to note the differences in precision with which
each data set is capable of locating a phone. The government has argued, and some
courts have accepted, that a warrant is not required to locate and/or track suspects if
the monitoring is done with less precision. See S.D.N.Y. I, 405 F. Supp. 2d at 449; see
also Dempsey, supra note 1, at 537. (Data taken from triangulation techniques will be
referred to as “triangulation data.”)
36
Farley & van der Hoek, supra note 20. As with data produced during
registration, the signals at the beginning and end of the call do not carry any content of
the communications. If law enforcement were to access call initiation/termination data,
but not registration data, then it could only spot check a person’s whereabouts, rather
than monitor his or her movements for an extended period of time.
37
See In re Application of the United States of America for an Order
Authorizing the Installation and Use of a Pen Register and a Caller Identification
System on Telephone Numbers [Sealed] and [Sealed] and the Production of Real Time
Cell Site Information (Maryland I), 402 F. Supp. 2d 597, 599 (D. Md. 2005).
38
Id.
39
Id. (noting that “real-time data” is a subset of prospective data).
40
Because there are several different types of data sets at issue in this
controversy, “cell location data” will be used as a blanket term to refer to any data that
permits law enforcement to locate or track an individual using cell phone signals. “Cell
site data” will refer to cell location data from a single cell tower.
2007]
THE ECPA AND CELL LOCATION DATA
389
automatic registration data.)41 A data set that includes
triangulation and signal strength data permits the tracking of
an individual with the greatest possible degree of precision,
while cell site data can indicate only generally where a target
is or was located. Initiation/termination data can reveal the
phone user’s location at the time he or she made or received a
call, while registration data can betray the user’s location at all
times the phone was turned on. Finally, all of the data sets can
be made available as historical data (data which exists in
phone company records prior to the time a court order
compelling its disclosure is issued) or as prospective data (data
not in existence when the order is issued, but which is turned
over to law enforcement on an ongoing basis throughout the
time period set out in the order).42 The types of data law
enforcement sought in the various published decisions have
affected the courts’ decisions to grant or deny law enforcement
access to it, although as this Note argues, the only distinction
that matters under the ECPA, properly construed, is the
distinction between historical and prospective data.43
III.
THE LEGAL FRAMEWORK
The Fourth Amendment does not protect information
that is voluntarily disclosed to third parties.44 Because cell
phone users disclose their location to the phone company in
order for the company to process their calls, there is probably
no constitutional protection for most cell location data.45 The
Fourth Amendment only prohibits warrantless surveillance of
41
See supra notes 31-36 and accompanying text.
See Maryland I, 402 F. Supp. 2d at 599.
43
See infra notes 160-171 and accompanying text.
44
See, e.g., Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (records of phone
calls held by phone company); United States v. Miller, 425 U.S. 435, 443 (1976)
(financial records held by bank); Couch v. United States, 409 U.S. 322, 335 (1973)
(financial and tax records held by accountant); Hoffa v. United States, 385 U.S. 293,
302 (1966) (statements made to confidential informant); see also Orin S. Kerr, A User’s
Guide To The Stored Communications Act, and a Legislator’s Guide To Amending It, 72
GEO. WASH. L. REV. 1208, 1210 (2004).
45
One magistrate involved in this controversy adopted a rather narrow view
of the voluntarism of cell site transmissions, stating that at least with regard to
automatically generated registration data, the phone user cannot be said to have
“voluntarily conveyed” cell site data to the phone company. Texas I, 396 F. Supp. 2d at
756-57. Another court differed, noting that “the individual has chosen to carry a device
and to permit transmission of its information to a third party, the [phone service]
carrier.” S.D.N.Y. I, 405 F. Supp. 2d at 449-50. If the former analysis is correct, there
may be a cognizable Fourth Amendment claim to protect registration data.
42
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suspects in their homes.46 Constraints on government
acquisition of cell location data (and many other forms of
electronic surveillance) are therefore primarily statutory—a
state of affairs that is consistent with the history of electronic
surveillance law.47
Given the lack of constitutional protection, one might
find it surprising that there is currently no statute that
explicitly regulates governmental access to cell location data.48
Grappling with the ambiguities in existing electronic
surveillance laws, courts have asked whether prospective cell
location data should be treated like the data provided by a
tracking device installed by the police, or rather, whether the
data should be treated like subscriber records, such as the
record of numbers dialed by the target phone.49 If cell location
data is treated like a tracking device, then governmental access
to it is governed by 18 U.S.C. § 3117, enacted as part the
ECPA.50 A warrant issued pursuant to probable cause would
then be required (in most instances) to locate or track an
individual using his or her cell phone.51 If cell location data is
better analyzed as a form of “subscriber record,” then law
46
Compare United States v. Karo, 468 U.S. 705, 716-17 (1984) (Fourth
Amendment requires a warrant to monitor a tracking device that is within the target’s
home), with United States v. Knotts, 460 U.S. 276, 282 (1983) (no warrant required if a
tracking device is monitored while the target in on public roads.).
47
See Susan N. Herman, The USA PATRIOT Act and the Submajoritarian
Fourth Amendment, 41 HARV. C.R.-C.L. L. REV. 67, 72 (2006) (noting that, although the
customary view is to see the judiciary turning the “constitutional ratchet” to provide
greater protection for civil liberties than legislatures would require, Congress found
itself providing more privacy protection from electronic surveillance than the Fourth
Amendment required throughout most of the Twentieth Century.)
48
See Dempsey, supra note 1, at 533.
49
See, e.g., Texas I, 396 F. Supp. 2d at 750, 753. What might have been a
more straightforward debate over the proper statutory interpretation is complicated by
the fact that cell location data provides the same information as tracking devices while
taking the form of subscriber records. Cell location data is therefore amenable to both
analogies.
50
Pub. L. No. 99-508, 100 Stat. 1848 (1986).
51
The law governing tracking devices is not entirely settled. Although a
warrant is not constitutionally required to install and monitor a tracking device so long
as the target remains in the public realm, it is usually impossible for government
agents to know in advance whether a tracking device will disclose that the target is in
a space, such as the home, where he or she enjoys a reasonable expectation of privacy.
The Fourth Amendment requires the government to obtain a warrant issued pursuant
to probable cause in order to engage in such surveillance. Karo, 468 U.S. at 716-17.
Because of the uncertainty over what the tracking device will reveal, the prudent
magistrate will insist on a showing of probable cause before authorizing the
installation of such a device. See Texas I, 396 F. Supp. 2d at 751-52; JAMES G. CARR &
PATRICIA L. BELLIA, 1 THE LAW OF ELECTRONIC SURVEILLANCE § 4:83, at 4-207 (West
2007).
2007]
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391
enforcement needs only to obtain a court order upon a showing
of “specific and articulable facts” demonstrating relevance to an
ongoing criminal investigation, per the terms of the SCA.52 This
is a much lighter burden for law enforcement to meet.53 Law
enforcement agencies argue for the lighter burden of proof,
advancing a “hybrid theory” that combines two distinct grants
of authority found in different statutes to authorize cell
location/tracking, which neither statute recognizes on its own.54
A final consideration when analyzing the appropriate
legal framework is that the provisions of the SCA alone appear
to be sufficient to grant law enforcement access to historical
cell location data.55 The present controversy therefore deals
with a question that is significantly narrower than whether
law enforcement may access cell location data without a
warrant. More precisely, the question is whether prospective
cell location data (from the very general “cell site data” to the
very precise “real-time triangulation data”) is accessible by law
enforcement subject to the same strictures that govern the use
of conventional tracking devices.56 The arguments advanced by
law enforcement agencies and by privacy advocates have
addressed this precise question.
A.
Law Enforcement’s “Hybrid Theory”
The government has claimed statutory authority to
access cell location data under a theory that combines the
authority granted by multiple statutes.57 The hybrid theory
posits that federal district courts have the authority to compel
the disclosure of prospective cell location data when they issue
an order for a pen register58 in conjunction with an order for
stored subscriber records.59 Advocates of this theory argue that
it fulfills the intent of Congress as expressed in the ECPA and
52
18 U.S.C. § 2703(d) (2006).
See infra notes 64-69 and accompanying text.
54
See Texas I, 396 F. Supp. 2d at 758 n.13; see also infra Part IV.A.
55
See Maryland I, 402 F. Supp. 2d at 600.
56
For a discussion of the law regarding tracking devices, see supra note 51
and accompanying text.
57
The term “hybrid theory” was first used in Texas I, see 396 F. Supp. 2d 747,
758 n.13.
58
A pen register is the device that law enforcement agents use to record the
“dialing, routing, addressing, or signaling information” transmitted by the target
phone. Texas I, 396 F. Supp. 2d at 761 n.17 (quoting 18 U.S.C. § 3127(3) (2006)).
59
Id. at 761.
53
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harmonizes the text of the relevant statutes to form a coherent
scheme of surveillance regulation.60
The first building block of the hybrid theory is the
Pen/Trap Statute.61 The Pen/Trap Statute is part of Title III of
the ECPA.62 It governs the installation and use of pen registers
and trap/trace devices.63 The USA PATRIOT Act added the
term “signaling information,” expanding the pen register’s
previous scope to encompass all signaling information
transmitted as part of an electronic communication.64 The
Pen/Trap Statute provides that a judge “shall enter an ex parte
order” compelling the cooperation of an electronic
communications service provider where a government attorney
has certified that the information likely to be obtained from the
pen/trap device is “relevant to an ongoing criminal
investigation.”65 This limited form of review exists “merely to
safeguard against purely random use of [pen and trap/trace]
device[s],”66 while ensuring that the devices are promptly
available to law enforcement agencies.67 “Certified relevance” is
the lowest evidentiary burden the ECPA imposes upon law
enforcement.68 Orders for pen/trap devices are the only ones
that may be issued on such a minimal showing.69 Pen/trap
authority is granted with minimal judicial oversight because
60
S.D.N.Y. I, 405 F. Supp. 2d at 448-49.
See id. at 438.
62
Texas I, 396 F. Supp. 2d at 752.
63
Id. A pen register records the numbers of all outgoing calls made by the
target phone, as well as the time and duration of those phone calls. A trap/trace device
records the numbers of all phones that place calls to the target phone. Id.; see also 18
U.S.C. § 3127(3)-(4) (2006).
64
USA PATRIOT ACT of 2001, Pub. L. No. 107-56, § 216(c)(2), 115 Stat. 272,
288-90 (codified as amended at 18 U.S.C. § 3127(3) (2001)). (“USA PATRIOT Act” is an
acronym for the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act.) This amendment is important to
hybrid theory advocates, because “signaling information” can potentially cover
automatic registration data, whereas dialing, routing and addressing information
cannot. Because registration data permits law enforcement to track cell phones even
when there is no call in progress, its accessibility greatly increases the government’s
power to engage in surveillance. See S.D.N.Y. I, 405 F. Supp. 2d at 438-39; see also
supra notes 25-36 and accompanying text.
65
18 U.S.C. § 3123(a)(1) (2006).
66
United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990).
67
CARR & BELLIA, supra note 51, § 4:81, at 4-200 to -201; see also In re
Application of the United States of America for an Order Authorizing Installation and
Use of a Pen Register and Trap and Trace Device, 846 F. Supp. 1555, 1559 (M.D. Fla.
1994).
68
Texas I, 396 F. Supp. 2d at 753.
69
See id.
61
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THE ECPA AND CELL LOCATION DATA
393
Congress believed that the disclosure of this information is
minimally invasive.70
Because the target phone transmits cell location data,
pen registers, not trap/trace devices identify the phone user’s
location.71 If the hybrid theory correctly asserts that cell
location data is “dialing, routing, addressing, or signaling
information,”72 then the terms of the Pen/Trap Statute alone
permits law enforcement to access cell location data on a
showing of certified relevance. There is, however, an exception
to the Pen/Trap Statute, codified elsewhere in the United
States Code, which regards cell location data.73 The language of
this exception clearly prevents cell location data from being
disclosed to law enforcement under the authority of the
Pen/Trap Statute and, therefore, on the minimal showing of
certified relevance:
[W]ith regard to information acquired solely pursuant to the
authority for pen registers and trap and trace devices (as defined in
section 3127 of Title 18), such call-identifying information shall not
include any information that may disclose the physical location of
the subscriber (except to the extent that the location may be
determined from the telephone number) . . . .74
The hybrid theory relies on the language “solely
pursuant to” for the assertion that Congress intended the
Pen/Trap Statute, supplemented by some other, unspecified
form of authority, to permit cell phone location and tracking.75
The semantic implication of the term “solely” becomes the
lynchpin in the government’s argument; if the word were not
there, it would be clear that Congress forbade the use of pen
registers to obtain cell location data. Because Congress did
include the phrase “solely pursuant to,” the government’s
argument that “signaling information,” per the Pen/Trap
Statute, is accessible by law enforcement when conjoined with
some other statutory grant of authority has a plausible textual
70
See Texas III, 441 F. Supp. 2d at 830 (“Legal process [under the ECPA] is
calibrated to the degree of intrusion. So ‘the greater the privacy interest at stake, the
higher the [evidentiary] threshold Congress uses.’” Id. at 829 (quoting Orin S. Kerr,
Internet Surveillance Law After the USA PATRIOT ACT: The Big Brother That Isn’t, 97
NW. U. L. REV. 607, 620-21 (2003)).
71
See S.D.N.Y. I, 405 F. Supp. 2d at 439 n.2.
72
See 18 U.S.C. § 3127(3) (2006).
73
Id. at 440.
74
47 U.S.C. § 1002(a)(2)(B) (2006) (enacted as part of CALEA) (emphasis
added).
75
S.D.N.Y. I, 405 F. Supp. 2d at 442.
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basis.76 The other grants of authority that the ECPA provides
are included in the provisions governing wiretaps,77 tracking
devices78 and stored communications and subscriber records
such as email.79 Proponents of the hybrid theory argue that the
SCA provides the compliment to pen register authority, as
required by the “exception clause.”80 From the government’s
perspective, the SCA is an attractive candidate for this role
because, after the Pen/Trap Statute, the SCA places the lowest
evidentiary burden on the law enforcement agency seeking
such an order.81 It is also a textual fit; the critical section
providing in pertinent part:
[A governmental entity may require a provider of electronic
communication service] to disclose a record or other information
pertaining to a subscriber to or customer of such service (not
including the contents of communications) . . . if the governmental
entity offers specific and articulable facts showing that there are
reasonable grounds to believe that . . . the records or other
information sought, are relevant and material to an ongoing criminal
investigation.82
This final step in the hybrid theory fits together with the
Pen/Trap Statute because of the breadth of the terms “records
or other information.” Cell location data could fairly be
conceptualized as “other information.”83 Various federal courts
have accepted this theory, issuing orders for the release of
stored communications (under the SCA) and for the use of a
pen register (under the Pen/Trap Statute) to access prospective
cell location data.84
In summary, the government’s hybrid theory seeks the
authority to locate and track individuals on a prospective basis
(as opposed to simply determining where they have been in the
past) by accessing the data gleaned from their cellular phone
transmissions. Although it is conceptually coherent to think of
this data as analogous to the dialing and addressing records
76
S.D.N.Y. I, 405 F. Supp. 2d at 443.
18 U.S.C. §§ 2510-2522 (2006); see also Kerr, supra note 69, at 620
(referring to the authority for a wiretap as a “superwarrant”).
78
18 U.S.C. § 3117; see also Texas I, F. Supp. 2d at 752.
79
18 U.S.C. § 2703(d) (requiring an intermediate showing of “specific and
articulable facts”) (enacted as part of the SCA).
80
S.D.N.Y. I, 405 F. Supp. 2d at 448-49.
81
Texas I, 396 F. Supp. 2d at 753
82
18 U.S.C. § 2703(c)-(d) (2006).
83
See S.D.N.Y. I, 405 F. Supp. 2d at 444-48.
84
See infra Part IV.
77
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THE ECPA AND CELL LOCATION DATA
395
accessible by a pen register, Congress has unambiguously
forbidden the Pen/Trap Statute, standing alone, to authorize
cell phone tracking. The SCA (the Stored Communications Act),
clearly authorizes the disclosure of historical cell location data
but cannot, by its terms, compel the disclosure of prospective
data.85 Because prospective cell data, especially data obtained
in real-time, is much more valuable to law enforcement, the
government has sought to combine the forward-looking grant of
authority found in the Pen/Trap Statute with the authority to
access “subscriber records” granted by the SCA in order to
overcome the prohibition against using the Pen/Trap Statute as
the sole authority for locating individuals.86 Accepting the
hybrid theory means accepting that the Pen/Trap Statute and
the SCA, taken together, grant the government more power to
conduct electronic surveillance than either statute grants on its
own.
B.
Privacy Advocates’ Tracking Device Theory
Those who oppose law enforcement access to cell
location data on a showing of specific and articulable facts
argue very simply that, “[w]hile the cell phone was not
originally conceived as a tracking device, law enforcement
converts it to that purpose by monitoring cell [location] data.”87
Under this theory, the portion of the ECPA dealing with
tracking devices governs access to prospective cell location
data.88 The term “tracking device” is defined in that section as
“an electronic or mechanical device which permits the tracking
of the movement of a person or object.”89 As noted by one
magistrate, the statute regulating the use of tracking devices
applies to a device even if it is not designed to be a tracking
device and even if it serves some purpose other than the
locating or tracking of individuals; the statute applies so long
as a device permits the tracking of the movement of a person or
object.90 The same judge observed that 18 U.S.C. § 3117 makes
no mention of the precision with which law enforcement may
85
86
87
88
89
90
Texas I, 396 F. Supp. 2d at 759, 759 n.16.
Id. at 761.
Id. at 754.
18 U.S.C. § 3117 (2006).
Id.
Texas I, 396 F. Supp. at 753.
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locate the device in question.91 It is therefore irrelevant, for the
purposes of § 3117, whether law enforcement applies for realtime triangulation data or cell site data turned over on an
ongoing basis.92 It might also be noted that the definition of a
tracking device covers a device used simply to locate a target,
as long as the device permits the tracking of the target’s
movement. Once a court accepts that a cell phone is converted
to a tracking device when law enforcement accesses the user’s
cell location data, § 3117 is triggered and law enforcement
should apply for a warrant to obtain the data.93
The preceding discussion delineated the relevant
contours of federal electronic surveillance law and offered a
summary of the two theories competing to govern cell location
data. The plain language of the relevant statutes makes cell
location data amenable to both the hybrid and the tracking
device theories of the ECPA. A decision about which theory
produces the rule that strikes the right balance between
privacy and the needs of law enforcement requires a closer
examination of the opinions that have analyzed the competing
theories.
IV.
THE CELL LOCATION CASES
The difficulty that courts face in the cell location cases
would be understandable if they were confronted only with the
vagaries of the ECPA. The cases are more vexing still because
law enforcement has sought various different types of cell
location data in different cases, and certain courts have found
the differences persuasive.94 Courts on both sides of the
controversy have been embroiled in an effort to produce the
correct textual analysis of the relevant statutes, combining
interpretive virtuosity with a growing record of legislative
history. The following is a closer analysis of the two theories,
viewed through the opinions adopting and rejecting them.
91
92
93
94
827.
Texas I, 396 F. Supp. at 753.
See supra notes 40-42 and accompanying text.
See supra note 51.
See Dempsey, supra note 1, at 537; see also Texas III, 441 F. Supp. 2d at
2007]
A.
THE ECPA AND CELL LOCATION DATA
397
Cases Accepting the Hybrid Theory
Magistrate Judge Gorenstein in the Southern District of
New York decided the primary case accepting the hybrid
theory.95 This is the minority rule, with only four other federal
magistrates joining the analysis in published opinions.96 Cases
following this opinion have made little use of the tools of
statutory interpretation other than a plain reading of the
statutory texts. They do rely to some extent on the legislative
history behind the statutes, including the testimony of former
FBI Director Louis Freeh, appearing before Congress to
support the passage of CALEA.97 Yet the success of the hybrid
theory seems to depend primarily on its textual analysis of the
relevant statutes. This textual analysis needs to demonstrate
that the transmissions from cellular phones are best thought of
as being both “dialing, routing, addressing, or signaling
information” in order for the Pen/Trap Statute to apply and as
a form of “[subscriber] record or other information” in order for
the SCA to apply.98 Courts in the hybrid camp also need to
interpret the “exception clause” as the link that combines the
authority granted by the two statutes.99
An order for the installation of a pen/trap device permits
the capture of all “dialing, routing, addressing, or signaling
information” transmitted by the target phone for a period of up
95
S.D.N.Y. I, 405 F. Supp. 2d at 439.
In re Application of the United States for an Order for Prospective Cell Site
Location Information on a Certain Cellular Telephone (S.D.N.Y. III), 2006 WL
3016316, No. 06 Crim. Misc. 01 (S.D.N.Y. Oct. 23, 2006); Texas II, 433 F. Supp. 2d 804
(S.D. Tex. 2006); In re Application of the United States of America for an Order
Authorizing the Installation and use of a Pen Register with Caller Identification Device
and Cell Site Location Authority on a Certain Cellular Telephone (W. Va. Opinion), 415
F. Supp. 2d 663 (S.D. W. Va. 2006); In re Application of the United States for an Order:
(1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device;
and (2) Authorizing Release of Subscriber Information and/or Cell Site Information
(La. Opinion), 411 F. Supp. 2d 678 (W.D. La. 2006). The W.Va. Opinion is exceptional
for recognizing that the exception clause in 47 U.S.C. § 1002 does not apply to the
tracking of an individual who is carrying a cell phone but is not the subscriber of the
phone service. Id. at 665-66. In jurisdictions accepting the hybrid theory, law
enforcement may therefore track a phone that is not in the possession of the subscriber
pursuant to the authority in the Pen/Trap Statute and on the minimal showing of
certified relevance required by that statute. For a full discussion of this point, see infra
notes 153-159 and accompanying text.
97
See, e.g., S.D.N.Y. I, 405 F. Supp. 2d at 443; La. Opinion, 411 F. Supp. 2d
at 681. For a discussion of Director Freeh’s testimony, see infra text accompanying
notes 177-191.
98
See S.D.N.Y. I, 405 F. Supp. 2d at 438-40; 18 U.S.C. §§ 2703(c), 3127(3)
(2006).
99
Id. at 440-43; see also supra text accompanying notes 71-76.
96
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to 60 days from the date the order is issued.100 Courts upholding
the hybrid theory must first accept that cell location data
qualifies as such information. The support for this first step, as
analyzed in S.D.N.Y. I, comes from the fact that cell phones
transmit a signal to cell towers.101 The term “signaling
information,” then, covers “information on the location of cell
towers used by a cellular telephone.”102 The court in S.D.N.Y. I
used the legislative history of the USA PATRIOT Act, which
added the term “signaling information” to the definition of a
pen register, in order to buttress its conclusion that the term
was meant to cover signals transmitted by cell phones.103 That
history reveals an intention that the term would have a broad
sweep, stating that “‘signaling information’ would ‘apply across
the board to all communications media.’”104
The court’s other argument for bringing cell location
data under the aegis of the Pen/Trap Statute stems from a
pre-USA PATRIOT Act case from the Court of Appeals for
the District of Columbia, in which the court found that
signals from a cell phone “which are necessary to achieve
communications between the caller and the party he or she is
calling, clearly are ‘signaling information.’”105 The court in
S.D.N.Y. I presumed that Congress was aware of the
interpretation that the U.S. Telecom court gave to the term
“signaling information” and intended to incorporate that
interpretation into the USA PATRIOT Act.106
100
18 U.S.C. §§ 3123(c), 3127(3) (2006); see also S.D.N.Y. I, 405 F. Supp. 2d at
438 n.1 (noting that in the past the use of a pen register required the actual
installation of a physical device, but that, at least in the Southern District of New
York, the same information is conveyed by the telephone service provider in a digital
format, and that the same standards govern, regardless of the form the data takes).
101
S.D.N.Y. I, 405 F. Supp. 2d at 438-39.
102
Id. at 439.
103
Id.
104
Id. (citing H.R. Rep. No. 107-236(I), 107th Cong., 1st Sess. (2001.)). This
reading of the legislative history is contrary to the analysis performed by the court in
Texas I, which “note[d] an absence of legislative history indicating that Congress
intended cell data to be included in this term when it enacted the USA PATRIOT Act.”
Id. at 439 (citing Texas I, 396 F. Supp. 2d at 761).
105
S.D.N.Y. I, 405 F. Supp. 2d at 439 (citing U.S. Telecomm. Ass’n v. FCC,
227 F.3d 450, 464 (D.C. Cir. 2000)). At issue in the U.S. Telecom litigation, inter alia,
was the FCC’s interpretation of this term—in accepting this definition, the D.C. Court
upheld the FCC interpretation. U.S. Telecom Ass’n, 227 F.3d at 453.
106
S.D.N.Y. I, 405 F. Supp. 2d at 439 (citing and quoting Lorillard v. Pons,
434 U.S. 575, 581 (1978) for the proposition that “[w]here . . . Congress adopts a new
law incorporating sections of a prior law, Congress normally can be presumed to have
had knowledge of the interpretation given to the incorporated law, at least insofar as it
affects the new statute.”).
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399
The next step in the hybrid theory analysis is to find the
authority needed to supplement the Pen/Trap Statute in § 2703
of the SCA.107 The broad language contained in that section of
the SCA makes this step a fairly easy one, and there is little
dispute that historical cell location data could be accessed with
this authority alone.108
The final step for law enforcement to take in order to
gain access to prospective cell data on a showing of “specific
and articulable facts” is to interpret the exception clause
codified by CALEA.109 It is critical to the success of the hybrid
theory that the language “solely pursuant to the authority for
pen registers” be read to mean “pen registers and some other
form of authority in the ECPA.”110 This is so because the
S.D.N.Y. I court, and those that follow it, state not only that
the hybrid theory is a plausible interpretation of the electronic
surveillance laws, but also the only one possible.111 It appears
that the advocacy group appearing as amicus in S.D.N.Y. I had
argued that the exception clause in § 1002 should be read as “a
simple direction that no cell site information may be obtained
pursuant to the Pen Register Statute.”112 The structural
problem with this argument, according to the court, is that if
cell location data is not accessible via a pen register, then it
must not be accessible by law enforcement at all, an obvious
absurdity.113 The court’s thinking goes as follows: a pen register
(or its digital counterpart) is the mechanism by which law
enforcement ascertains the cell site being activated by the
target phone, and if a pen register cannot be involved in
ascertaining the cell site, then Congress has forbidden law
enforcement from using a very powerful tool without explicitly
saying so.114 Although the S.D.N.Y. I court found the “idea of
combining some [statutory] mechanism with as yet
undetermined features of [electronic privacy law] . . . an
unattractive choice,” it saw no other alternative but to accept
the hybrid theory.115
107
108
See supra text accompanying notes 75-83.
See supra text accompanying notes 82-83; see also Texas I, 396 F. Supp. 2d
at 759 n.16.
109
110
111
112
113
114
115
See supra note 72.
See supra text accompanying notes 82-83.
S.D.N.Y. I, 405 F. Supp. 2d at 443-44.
Id. at 441-42.
Id.
Id. at 441.
Id. at 443-44.
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The court in S.D.N.Y. I provided a plausible reading of
the language in the relevant statutes, yet, as the opinion itself
indicates, “the plain meaning of the words” of an ambiguous
statute is not a strong foundation upon which to ground a
statutory construction.116 Because S.D.N.Y. I and those opinions
adopting its reasoning made little use of the other tools of
statutory construction, and completely ignored the policy
implications of the hybrid theory, its validity remains
questionable. Furthermore, the cases upholding the hybrid
theory do very little to explain why privacy advocates’ theory
is unattractive. At most, the courts accepting the government’s
theory point to the limited precision with which law
enforcement can track an individual, using the crudest form
of cell location data.117 The implication appears to be that,
because certain types of cell location data do not permit the
tracking of a target with the same precision as a conventional
tracking device, the analogy, and the privacy advocates’
argument, must fail.118
Whereas the hybrid theory relies almost entirely on a
tenuous but plausible interpretation of several statutory
sections regulating electronic surveillance, the alternative
theory, which analogizes cell location data to the data derivable
from a conventional tracking device, provides a cogent textual
analysis, and, more importantly, situates that analysis in the
overall structure of electronic surveillance law.
B.
Cases Rejecting the Hybrid Theory
The line of cases that rejects the hybrid theory and
analogizes cell location data to the data taken from a
traditional tracking device has provided a thorough critique of
the hybrid theory and offered its own interpretation of the
relevant statutes.119 The courts falling into this camp have
grounded their decisions in a reading of the statutory texts and
their legislative history that is contrary to the one provided by
the hybrid theory, and, more importantly, in a structural
argument that considers the framework of the ECPA as a
116
S.D.N.Y. I, 405 F. Supp. 2d at 438.
See id. at 437-38. For a discussion of cell location data, see supra notes 3136 and accompanying text.
118
For a more complete discussion of this point, see infra text accompanying
notes 160-171.
119
See, e.g., Texas III, 441 F. Supp. 2d at 827-37; E.D.N.Y. II, 396 F. Supp. 2d
at 305-08.
117
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whole.120 In seeking congruence with the basic design of the
ECPA, these cases produce a more coherent interpretation of
the ambiguous texts than does the ‘plain meaning’ approach
taken by hybrid theory advocates. The overall soundness of this
holistic approach is evidenced by the fact that the cases
adopting it are by far the majority.121 Yet despite an
increasingly sophisticated and powerful critique of the hybrid
theory, the hybrid’s resilience was demonstrated in October of
2006, when a district judge in the Southern District of New
York joined the hybrid camp.122 The following is a discussion of
the majority line of cases, which supplies various critiques of
the hybrid theory and advances a more coherent alternative.
In light of the pervasive ambiguity in the statutes
relied upon by the two competing theories (none of them
actually mentions locating or tracking cellular phones by their
transmissions), it should come as no surprise that the majority
line of cases can also claim support for its analysis in the
text of the relevant statutes.123 The textual support for the
‘tracking device theory’ is quite sound: it is indisputable that
cell phones “permit the tracking of the movement of a person or
thing.”124 Courts accepting this position have also buttressed
their holdings by referencing legislative history which is—
admittedly—just as ambiguous as the statutes themselves.125
Perhaps most importantly, the majority line of cases has
produced a powerful critique of the hybrid theory. The
following is a discussion of the hybrid theory’s shortcomings
120
See Texas III, at 827-37.
In addition to the E.D.N.Y I and II; Texas I and III; Maryland I and III;
and E.D. Wis. courts, district court opinions rejecting the hybrid theory have been
handed down in the Western District of New York, In re Application of the United
States of America for an Order Authorizing Installation and Use of a Pen Register
(W.D.N.Y.), 415 F. Supp. 2d 211 (W.D.N.Y 2006); the District of Columbia, In re
Application of the United States for an Order Authorizing the Release of Prospective
Cell Site Information, 407 F. Supp. 2d 134 (D.D.C. 2006); In re Applications of the
United States of America for Orders Authorizing Disclosure of Cell Cite Information,
2005 WL 3658531 (D.D.C. Oct. 26, 2005); the Southern District of New York, In re
Application of the United States for an Order for Prospective Cell Site Location
Information on a Certain Cellular Telephone, 2006 WL 468300, No. 06 CRIM. MISC.
01 (S.D.N.Y. Feb. 28, 2006); and in the District of Maryland, In re Application of the
United States of America for Orders Authorizing the Installation and Use of Pen
Registers and Caller Identification Devices on Telephone Numbers [Sealed] and
[Sealed] (Maryland II), 416 F. Supp. 2d 390 (D. Md. 2006).
122
S.D.N.Y. III, 460 F. Supp. 2d at 454.
123
See, e.g., Texas III, 441 F. Supp. 2d at 832.
124
See supra text accompanying notes 87-93; 18 U.S.C. 3117 (2006).
125
See Texas III, 441 F. Supp. 2d at 832; E.D.N.Y. I, 384 F. Supp. 2d at
565-66.
121
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identified in the opinions that have rejected it. These
deficiencies are (1) the lack of any text instructing the
combining of the essential statutes; (2) the period of years
separating the enactment of the three critical statutes; (3) the
hybrids’ reliance on the Pen/Trap Statute as the exclusive
source of authority for cell location data; (4) the theory’s
interpretation of the exception clause codified by CALEA; (5)
the significance attached by the hybrid courts to the measure of
precision with which a cell phone user can be tracked; (6) the
lack of persuasive legislative history; (7) inconsistency with the
basic design of the ECPA.126
1. The Lack of Internal Cross-Referencing
Courts rejecting the hybrid theory have questioned the
validity of the theory’s textual analysis. Several courts opposed
to the hybrid theory have pointed out that none of the statutes
that the government claims are meant to be combined even
mentions another.127 Although Congress’ failure to explicitly
instruct the necessary combination is not fatal to the hybrid
theory, it is highly unusual for such a large grant of authority
to law enforcement to receive no explicit mention from either
the statutes alleged to grant such authority or from their
legislative history. As the Supreme Court recently stated while
rejecting an executive-branch claim to broad authority
purported to be nestled in ambiguous statutory language,
“Congress . . . does not, one might say, hide elephants in
mouseholes.”128 To date, no court putting its imprimatur on the
hybrid theory has offered an explanation for this anomaly.129
2. The Question of the Hybrid Theory’s “Birthday”
One court noted that, in addition to the difficulty in
determining how the ECPA brought the hybrid authority into
being, there is the question of when that authority first
existed.130 The Pen/Trap Statute was enacted as part of the
126
See Texas III, 441 F. Supp. 2d at 827-37; W.D.N.Y., 415 F. Supp. 2d at 21719, 218 nn.4-5.
127
See, e.g., Texas I, 396 F. Supp. 2d at 761. (There is one cross-reference, but
it is the negative instruction found in 47 U.S.C. § 1002.)
128
Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (quoting Whitman v. Am.
Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)).
129
See Texas III, 441 F. Supp. 2d at 835.
130
Texas I, 396 F. Supp. 2d at 765.
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ECPA in 1986.131 CALEA, which contains the exception clause
with its critically important phrase “solely pursuant to,” was
enacted in 1994. The USA PATRIOT Act, which purportedly
expanded the scope of the Pen/Trap Statute to cover
registration data, was not passed until 2001.132 Given this
timeline, accepting the hybrid theory requires accepting that in
1994 CALEA permitted the Pen/Trap Statute (in conjunction
with the SCA) to access cell location data, even though cell
phones were not in widespread use and even though the
Pen/Trap Statute did not authorize the police to engage in
meaningful surveillance of cell location data.133 As with the lack
of internal cross-referencing, hybrid theory proponents have
not made an effort to explain this glitch.134
3. The Pen/Trap Statute as the Exclusive Source for
Cell Location Authority
One of the assertions made by the leading case
accepting the hybrid theory is that the Pen/Trap Statute is the
only possible source of authority by which law enforcement can
access cell location data.135 The faulty syllogism that produces
this conclusion runs as follows: Cell location data is “signaling
information” within the meaning of the Pen/Trap Statute and
therefore accessible via a pen register. The Pen/Trap Statute
states that “no person may install or use a pen register . . .
without first obtaining a court order under [the authority
granted by the Pen/Trap Statute].”136 Because only a pen
register can provide the government with “signaling
information,” it must be that an order for a pen register is a
necessary component of any court order providing cell location
data.137 If this were true, it would greatly undermine the
tracking theory because it would mean that “[a warrant issued
pursuant to probable cause] cannot by [itself] provide authority
131
Pub. L. No. 103-414, Title I, § 103.
Id.
133
See id. (arguing the converse, that is, if cell location data were already
covered by the Pen/Trap Statute, then the 2001 amendment was unnecessary). But see
supra note 64 and accompanying text (noting that the government has argued
explicitly that the USA PATRIOT Act added “signaling information” so as to include
cell location data).
134
See Texas III, 441 F. Supp. 2d at 835.
135
S.D.N.Y. I, 405 F. Supp. 2d at 441.
136
Id. at 441; see also 18 U.S.C. §§ 3123, 3127(3) (2006).
137
S.D.N.Y .I, 405 F. Supp. 2d at 441.
132
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for the Government’s application because any warrant . . . must
necessarily authorize the installation of a ‘pen register.’”138 In
other words, given that only a pen register has the
technological capability to obtain cell location data, to hold that
an order for a pen register is insufficient legal authority to
obtain the same information would mean that the government
cannot obtain cell location data by any means. Such a result,
the court rightfully concludes, cannot be squared with the clear
intention of the relevant statutes.139
Another court responded to this argument, vigorously
attacking the syllogism.140 This second court stated that if the
hybrid theory is correct in this regard, then the “pen/trap
standard is not only a threshold, but also a ceiling,” an equally
bizarre result.141 It then demonstrated that the hybrid court’s
conclusion contravenes some of the basic principles of the
ECPA. The court stated, “One feature of ECPA is that through
use of greater legal process officials can gain access to any
information that they could obtain with lesser process.”142 Even
more convincingly, the court cites the manual published by the
Department of Justice’s Computer Crime and Intellectual
Property Section for the proposition that “a § 2703(d) court
order can compel everything that a subpoena can compel (plus
additional information), and a search warrant can compel the
production of everything that a § 2703(d) order can compel (and
then some.)”143 If still more authority were required, the court
critiquing the syllogism discussed a Supreme Court opinion
written before the enactment of the ECPA, which specifically
stated that a warrant could obtain the type of information later
covered by the Pen/Trap Statute.144
There is another serious problem with trying to argue
that a pen register is the exclusive method for accessing cell
location data. First, it is not exactly accurate to state that a pen
register is the device that captures cell location data. The court
in S.D.N.Y. I itself noted that, at least in its own district, a
“pen register” no longer refers to a physical device that agents
138
S.D.N.Y .I, 405 F. Supp. 2d at 441.
Id. at 441-42.
140
Texas III, 441 F. Supp. 2d at 829-32.
141
Id. at 829.
142
Id. (quoting J. CARR & P. BELLIA, supra note 51, § 4:77, at 4-193 internal
quotes omitted).
143
Id.
144
Id. at 830 (discussing United States v. N.Y. Tel. Co., 434 U.S. 159 (1977),
and noting that it has not been overruled in light of the ECPA).
139
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install on a subscriber’s line.145 On the contrary, data from a
“pen register” now exists in the form of a digital record, which
the phone company provides to law enforcement after receiving
a court order.146 The court noted that in the context of digital
telephony, “[t]he Government has properly assumed that,
despite this change in technology, it is bound to follow the Pen
Register Statute to obtain information otherwise covered by the
statute.”147 The court lost itself in its own fictions when it
asserted that a pen register is the only “device” by which the
government can obtain cell location data.148 By defeating the
argument that only a pen register can access cell location data,
the hybrid theory’s detractors open the possibility that a
warrant issued in accordance with 18 U.S.C. § 3117 is the
appropriate form of authority.
4. Reading “Solely Pursuant to” in 47 U.S.C. § 1002
Closely tied to its reading of the Pen/Trap Statute, the
court in S.D.N.Y. I read the exception clause in 47 U.S.C.
§ 1002 to mean that an order for a pen register was a necessary
component of an order for cell location data.149 The court stated
that “‘[s]olely’ means ‘without another’ or ‘to the exclusion of all
else.’ If we are told that an act is not done ‘solely’ pursuant to
some authority, it can only mean that the act is done pursuant
to that authority ‘with[] another’ authority.”150 In drawing that
conclusion, the court mistook one possible meaning for the only
available meaning.
The court in Texas III responded by asking us to
“[c]onsider the statement ‘A barrel of oil cannot be purchased
solely with a $5 bill.’”151 The logic employed by the New York
court would lead to the conclusion that no amount of currency
and no property offered as barter could secure the purchase of
a barrel of oil unless it included or was accompanied by a $5
bill. The court in Texas III reached a different conclusion—one
that is amply supported by the design of the ECPA: although
“some amount of legal process” is necessary to obtain cell
145
146
147
148
149
150
S.D.N.Y. I, 405 F. Supp. 2d at 438 n.1.
Id.
Id.
See id. at 441.
Id. at 440-44.
Id. at 442 (internal citations omitted) (alterations and emphasis in
original).
151
Texas III, 441 F. Supp. 2d at 833.
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location data, the authority granted by the Pen/Trap Statute is
not enough.152 The Texas court’s barrel of oil example
demonstrates that the exception clause can be read to mean
that greater legal process could ‘purchase’ greater powers of
surveillance. The court thereby demonstrated that the hybrid
theory’s essential claim—that the exception clause requires pen
register authority for law enforcement to access cell location
data—is not the only possible reading of that section.
Another odd result produced by reading the exception
clause as the hybrid theory requires was manifested in a case
from the Southern District of West Virginia (“West Virginia
Opinion”).153 That court noted that the exception clause
prohibits a pen register from disclosing the physical location of
the subscriber to a telephone service.154 Because the target of
the police surveillance in the West Virginia Opinion was not
the subscriber to the phone company’s service, but rather was
using another person’s phone, the court held that the phone
user’s cell location data was accessible on the minimal showing
of certified relevance.155 This is problematic for three reasons.
The first is obvious. By accepting the hybrid theory’s initial
premise, that cell location data is accessible via a pen register,
a court is forced to conclude that there is only minimal
procedural protection available for cell phone users who are
not the service subscriber. If this were true, it would mean that
an individual’s privacy interest in being free from having the
government track his or her movements is created by
contracting for cellular telephone service. The second problem
compounds the first. Under the “certified relevance” standard,
a district court could not question law enforcement’s assertion
that the target of the surveillance is not the service
subscriber.156 The West Virginia Opinion exemplified this exact
152
Texas III, 441 F. Supp. 2d at 833; see also supra notes 40-41 and
accompanying text.
153
In re Application of the United States of America for an Order Authorizing
the Installation and use of a Pen Register with Caller Identification Device and Cell
Site Location Authority on a Certain Cellular Telephone (W. Va. Opinion), 415 F. Supp.
2d 663 (S.D. W. Va. 2006).
154
Id. at 665-66; see also 47 U.S.C. § 1002 (2006).
155
W. Va. Opinion, 415 F. Supp. 2d at 665-66. The court did note that it would
not follow the hybrid theory where a subscriber’s location was sought. In drawing its
distinction, it accepted the premise that a pen register is the proper source of cell
location data, but rejected in dicta the hybrid theory’s applicability to service
subscribers.
156
See Texas I, 396 F. Supp. 2d at 753 (stating that when considering an
application where the government is held to the evidentiary burden of certified
relevance, “the judge need not—and, indeed, cannot—independently assess the factual
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concern when it stated “[t]he United States certifies that the
fugitive is using another person’s cellphone.”157 The practical
effect of such a rule would permit the government to engage in
warrantless, real-time tracking of individuals anytime a
government agent represents that a suspect is carrying the cell
phone of another.
It is no less invasive of one’s privacy to have one’s
movements tracked when carrying someone else’s cell phone
than it is to be tracked with one’s own cell phone; this is a
necessary result of accepting the hybrid theory and is
inconsistent with the feature of the ECPA that calibrates the
amount of required legal process to the degree of intrusion into
one’s privacy.158 Moreover, if the hybrid interpretation of the
ECPA is the correct one, then the statute is unconstitutional to
the extent it permits the government to monitor cell phone
users’ movements within their homes but without a warrant.159
5. The Precision of Tracking Made Possible by Cell
Location Data
Cell location data can be grouped into various types,
some permitting more precise tracking than others, and some
involving a different amount of voluntarism on the part of the
user.160 For instance, in the first published opinion to reject the
hybrid theory, the government requested prospective cell
location data, but only regarding the individual cell site
activated by the target phone.161 In an application before a
different court, the government requested prospective data, but
from multiple cell sites, susceptible to triangulation, as well as
the signal strength data from each cell site.162 The government
application before that magistrate requested the most precise
data set possible from conventional wireless telephony.163 Had
the request been granted, it would have allowed ongoing, real-
predicate for the government officials’ certification”) (quoting CARR & BELLIA, supra
note 51, § 1:26, at 1-25); see also supra text accompanying notes 65-70.
157
W. Va. Opinion, 415 F. Supp. 2d at 664.
158
See supra note 70.
159
See supra note 46 and accompanying text.
160
See supra note 45.
161
E.D.N.Y. I, 384 F. Supp. 2d at 563; see also E.D.N.Y. II, 396 F. Supp. 2d at
295.
162
Texas I, 396 F. Supp. 2d at 749; see also supra text accompanying notes
31-38.
163
See supra text accompanying notes 41-42.
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time tracking of the subject phone with a high degree of
precision.164
By contrast, in the leading case to accept the hybrid
theory, the government sought, on a prospective basis, cell site
data and facing data generated at the beginning and end of
calls, but not triangulation data, signal strength data, or
automatically generated registration data.165 The split among
the courts cannot be explained by the differences in the data
sets requested by law enforcement in the various cases.
Pointing to the differences in precision made possible by the
data is at best a partial explanation for the split, evidenced by
the split between the Eastern District of New York and
Magistrate Judge Gorenstein’s opinion in S.D.N.Y. I. The
opinions handed down in the Eastern District denied a
government application for less invasive data than the
application which was granted in S.D.N.Y. I.166
Moreover, if the cases accepting the hybrid theory are
best understood as permitting the warrantless locating or
tracking of cell phones when that surveillance is conducted
with limited precision, then their deciding rationale is
unsound; it is certainly not rooted in the text of the ECPA.167 As
one court that rejected the hybrid theory has noted, the federal
statute defining tracking devices does not include a precision
requirement in its definition.168 Yet, every one of the cases that
has accepted the hybrid theory has limited its holding to cell
location data that reveals only generally the location of its
target.169 Those courts’ reluctance to grant law enforcement the
full measure of surveillance capability that the hybrid theory
authorizes is understandable, but there is no principled basis
for limiting the theory’s reach in this way.170 The hybrid courts’
unease suggests that, however convincingly the hybrid theory
might account for the text of the relevant statutes, what it
proposes is just bad policy.
164
It is unclear exactly how precisely the government would have been able to
track the phone; that can never be known unless the concentration and arrangement of
cell towers activated by the phone is also known. See supra text accompanying notes
20-38.
165
S.D.N.Y. I, 405 F. Supp. 2d at 437; see also Dempsey, supra note 1, at 537.
166
Compare E.D.N.Y. II, 396 F. Supp. 2d at 295-96, with S.D.N.Y. I, 405 F.
Supp. 2d at 437-38 (denying the same application on rehearing).
167
See supra text accompanying notes 89-93.
168
Texas I, 396 F. Supp. 2d at 753.
169
See Texas III, 441 F. Supp. 2d at 827.
170
See W.D.N.Y., 415 F. Supp. 2d at 218 n.5.
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6. The Lack of Persuasive Legislative History
Both sides of the debate claim to have found support in
the language of the legislative histories of the various statutes
involved in the debate.171 Although there is a significant
amount of skepticism regarding the value of legislative history,
Justice Scalia being its foremost critic, the history of the
statutes relevant to the present debate has been the topic of
constant skirmishing between the two camps in the
controversy.172 Hybrid theorists offer the legislative history of
the USA PATRIOT Act to reinforce their argument’s essential
claim that “signaling information” includes “cell location
data.”173 The quoted history supports the assertion that the
Pen/Trap Statute authorizes the use of pen registers to capture
data from cellular phones in addition to other electronic
communication media, such as email, but it does not shed
much light on whether cell location data should be construed as
“signaling information.” Because this is the only legislative
history that putatively supports the argument that cell location
data is “signaling information,” this appeal to the statute’s
history is hardly convincing. One court that rejected the hybrid
theory likely had this point in mind when it declared that
“[n]othing in the admittedly abbreviated legislative history of
the PATRIOT Act suggests this new definition would extend
the reach of the Pen/Trap Statute to cell phone tracking.”174
The hybrid proponents’ most convincing use of
legislative history regards their interpretation of the exception
clause, codified as part of CALEA.175 Hybrid proponents point to
the first round of testimony given before Congress by former
FBI director Louis Freeh, who was appearing to urge the
enactment of CALEA.176 He stated, “Even when such
generalized location information . . . is obtained from
communications service providers, court orders or subpoenas
171
See, e.g., S.D.N.Y. I, 405 F. Supp. 2d at 439-41, 443; Texas I, 396 F. Supp.
2d at 752 n.7, 753-54, 758, 761-65.
172
See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW (1997).
173
See S.D.N.Y. I, 405 F. Supp. 2d at 438-39; see also supra text accompanying
notes 101-104.
174
Texas I, 396 F. Supp. 2d at 761.
175
S.D.N.Y. I, 405 F. Supp. 2d at 442-43.
176
See id. at 443.
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are required and are obtained.”177 At first blush, the FBI
director’s use of the words “court orders or subpoenas” and not
“warrants issued pursuant to probable cause” seems to bolster
the hybrid argument. This conclusion is significantly
undermined if Director Freeh was only referring to historical
data or to a person’s actual, physical address (readily
identifiable in the erstwhile era of wireline telephony, the
predominant mode of telephony at the time Freeh made these
statements) when he used the term “generalized location
information.”178 Perhaps more to the point, the leading opinion
to adopt the hybrid theory only used the Freeh statement to
support its argument that the exception clause contained in
CALEA can’t be read to “bar[] law enforcement agencies from
obtaining cell site information entirely,” a point not seriously
contended in the opinions rejecting the hybrid theory.179
Courts rejecting the hybrid theory have also relied on
the statements Freeh made before Congress. In one portion of
testimony, he stated that the purpose of CALEA was to
“maintain technological capabilities commensurate with
existing statutory authority.”180 Freeh’s concern was that, as
digital telephony—both wireless and wireline—came to replace
traditional analogue telephony, the existing statutes
authorizing the compelled cooperation of phone companies
would be eroded, and that law enforcement would lose the
ability to “install” pen registers and wiretaps.181 In an attempt
to allay the concerns of privacy advocates, Freeh stated that
CALEA “ensures the maintenance of the status quo,” and
that “the legislation does not enlarge or reduce the
government’s authority to lawfully conduct court-ordered
electronic surveillance.”182 This use of legislative history, while
it tends to strengthen the argument against the hybrid theory,
is ultimately inconclusive. Relying on this testimony to
demonstrate that CALEA was not meant to authorize the use
177
S.D.N.Y. I, 405 F. Supp. 2d at 443 (quoting Police Access to Advanced
Communications Systems: Hearing Before the Subcomm. on Technology and the Law of
the S. Comm. on the Judiciary and the Subcomm. on Civil and Constitutional Rights of
the H. Comm. on the Judiciary, 103d Cong. 2d Session (1994) (statement of Louis
Freeh, Director of the FBI) (emphasis added).
178
See id.
179
Id.; see infra text accompanying notes 181-184.
180
Wiretapping Access: Hearing Before the Subcomm. on Telecommunications
and Finance of the H. Comm. on Energy and Commerce, 103d Cong. (1994).
181
Id.
182
Id.
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411
of pen registers to track cell phones simply begs the question of
whether such use of pen registers is an expansion of the
government’s pre-digital powers of surveillance or simply
maintenance of the status quo.
The fact that both sides of this debate claim the support
of the same legislative history is not surprising; nor is the fact
that neither snippet of Freeh’s testimony definitively answers
the question of what the critical terms mean. Justice Scalia has
argued that the law is manifested by the “objective indication
of the words [of a statute], rather than the intent of the
legislature.”183 He points out that the attempt to discern
congressional intent from legislative history is flawed in at
least three related ways. First, it invites judges to implement
their own policy preferences under the guise of legislative
intent.184 Second, to suppose an actual intent shared by a
majority of Congress behind any given statute (to say nothing
of such statutory minutiae as is involved in the present
controversy) is to indulge an enormous fiction.185 Indeed, it is
difficult to imagine that a majority of the members of Congress
actually thought about and shared an opinion as to how the
terms “signaling information” or “solely pursuant to” should
apply to cell location data. Finally, the sheer volume of
documentation produced in passing new laws means that
litigators and judges turning to legislative history will find
“something for everybody.”186 Rather than asking what
Congress intended but failed to express, the proper inquiry into
legislative intent asks what Congress’ intentions were, as
objectively manifested in the words they actually used.187 The
reasoning in some of the cell location cases exemplify the
problems inherent in relying on legislative history, and
validate Justice Scalia’s critiques of the practice.188
The theory of textualism advanced by Justice Scalia
offers an alternative interpretive technique for resolving
ambiguities such as the ones at the heart of the present
controversy. It urges that words have a limited range of
possible meanings and seeks to determine the most reasonable
183
184
185
186
187
188
SCALIA, supra note 172, at 29.
Id. at 30-31.
Id. at 31-32.
Id. at 36.
Id. at 16-17
See supra text accompanying notes 171-172.
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interpretation of the words themselves.189 While textualism
does not resort to legislative history, it does consider the
context in which ambiguous words are situated to determine
their meaning.190 Whatever may be said of textualism
generally, relying on the “‘objectified’ intent—the intent that a
reasonable person would gather from the text of the law, placed
alongside the remainder of the corpus juris,” produces a
decisive insight in the cell location cases.191 Courts accepting
the hybrid theory have analyzed the critical statutory sections
only in isolation from the body of federal electronic surveillance
law. Those courts’ conclusions, though credible on their own
terms, are inconsistent with the basic design of the ECPA and
counter to the policies embodied in that statute.192
7. The Structural Inconsistencies Created by the
Hybrid Theory
Considering the texts of the three statutory provisions
essential to the hybrid theory within the context of the ECPA’s
regulatory scheme fatally undermines the government’s
argument. As noted in one prominent opinion rejecting the
hybrid theory, the provisions of the ECPA that explicitly
govern access to forms of prospective data contain sealing
requirements and time limits.193 The SCA contains none.194 The
court reasoned that these features of the Pen/Trap Statute and
the SCA indicate that they were tailored to different purposes
and meant to operate separately rather than in tandem.195
Another court noted that accepting the hybrid theory requires
accepting that the “two statutes together accomplish what
neither can alone.”196 This is especially odd given that the
statutory ingredients in the hybrid theory were enacted over a
189
190
191
192
SCALIA, supra note 172, at 24.
See id. at 20-21, 23-24.
Id. at 17 (citations omitted).
See Texas III, 441 F. Supp. 2d at 829; see also Kerr, supra note 70, at 608-
09.
193
See Texas III, 441 F. Supp. 2d at 833-36 (noting that wiretaps, which are
inherently prospective, can be authorized for a maximum of thirty days at a time, that
pen/trap authorizations expire after sixty days, and that both wiretap and pen/trap
orders are automatically sealed while orders under the SCA trigger none of these
privacy protections).
194
Id. at 833.
195
Id. at 835.
196
E.D.N.Y. II, 396 F. Supp. 2d at 316.
2007]
THE ECPA AND CELL LOCATION DATA
413
fifteen-year period, and that, with one exception, they do not
cross-reference one another.197
Another anomaly that the hybrid theory produces in the
structural coherence of the ECPA was noted by Magistrate
Judge Smith in the Southern District of Texas: the warrant
requirement for a tracking device would be redundant if law
enforcement can effectively track an individual with a cell
phone.198 While the court’s opinion may have overstated the
case by suggesting that law enforcement could simply install
cell phones on people’s cars instead of actual tracking devices
(thereby obviating the need for a warrant), the point is welltaken that given the ubiquity of cell phone usage, a tracking
device would seldom be necessary if the cell phone could
perform a tracking function while not requiring a warrant.199
Finally, it has been observed that the ECPA requires
greater legal process in order for the government to access data
that is more invasive of an individual’s privacy.200 As part of
this basic design, the authority for pen registers is quite easy to
exercise, representing a judgment on the part of Congress that
phone users have a limited privacy interest in the record of
phone calls they have made.201 At the other end of the ECPA’s
spectrum is the authority for wiretapping, requiring what Orin
Kerr has called the “‘super’ search warrant.”202 Just below the
super warrant in the hierarchy of legal process is the warrant
issued pursuant to probable cause, the normal form of
authorization for installing a tracking device.203 The fact that a
warrant is normally required to track an individual’s
movement suggests that a significant privacy interest is
invaded when law enforcement engages in this type of
surveillance.
One potential response from advocates of the hybrid
theory maintains that traditional pen registers revealed the
location of phone users at the time they were on the phone,
usually in their homes and offices, the very places that the
Supreme Court has held deserve the greatest privacy
197
Texas I, 396 F. Supp. 2d at 764-66. The one cross-reference is a limiting
reference, located within the exception clause of § 1002. Id. at 764; see also supra notes
130-134 and accompanying text.
198
Texas I, 396 F. Supp. 2d at 756.
199
See id.
200
Kerr, supra note 70, at 620-21.
201
See supra text accompanying notes 65-70.
202
Kerr, supra note 70, at 620.
203
Id.; see also supra note 51.
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protections. That this information was and is accessible
without a warrant suggests that the ECPA also permits cell
location data to be accessible without a warrant, even when it
reveals the phone user is inside his or her home. This
argument fails to acknowledge that technology which permits
the real-time tracking of individuals is clearly more powerful
and more invasive than technology that merely determines a
person was at home or in their office at the time they made a
phone call. The differences are important. First, the cell phone
service subscriber is typically the exclusive user of her cell
phone, whereas ten or fifteen years ago, an entire household
shared a single phone line. This development increases the
certainty—to nearly one hundred percent—that the
government can locate an individual by locating a particular
phone. Second, pen registers on a landline could disclose the
person’s whereabouts only at the time they were making a call,
as opposed to the constant monitoring that cell location data
makes available. This is not a quantitative but a qualitative
difference. The difference is so great that it makes cell location
data functionally indistinguishable from data derived from a
tracking device and completely unlike the list of dialed
numbers derivable from a pen register. Under the ECPA,
whenever the government seeks a greater intrusion into a
person’s privacy, greater legal process is required.204 This
observation suggests that emerging forms of electronic
surveillance—such as cell phone monitoring—should be
regulated according to function and not according to strained
linguistic analyses.
The previous discussion recounted the various critiques
of the hybrid theory offered by the majority line of cases. Of all
the conceptual problems posed by the government’s theory, the
most serious is the observation that the constituent sections of
the ECPA be interpreted with regard to their function.205 The
hybrid theory apparently has no answer to this insight; the
theory’s best defense is a brittle insistence upon one very
particular reading of the relevant statutory sections. This
reading studiously ignores the fact that the government
monitors the movements of a person or thing when it accesses
prospective cell location data, regardless of whether that data
is called “signaling information,” “subscriber records” or “data
204
205
Kerr, supra note 70, at 620-21.
Id.
2007]
THE ECPA AND CELL LOCATION DATA
415
from a tracking device.” Even the cases accepting the hybrid
theory have limited its impact in a manner that suggests its
central premise—that law enforcement can use electronic
surveillance to monitor a person’s whereabouts with a minimal
amount of judicial oversight—is inconsistent with the policies
behind the ECPA.206
V.
CONCLUSION
The debate over cell location data reflects a general
truth about the current state of electronic media law—it is
outdated and falling further behind.207 The proliferation of
Internet traffic and technological advances in such areas as
data storage and wireless telephony that have taken place in
the last ten years have profoundly changed the way human
communities exchange, store, process, and commodify
information.208 The startling speed of these changes made it
inevitable that the laws regulating the flow of information
would lag behind.209 The Internet, now the most important
information medium for individuals, corporations and
government, is regulated—to the extent it is regulated at all—
by laws modeled on telephonic communications media.210 The
awkward fit between those laws and their new subject has not
gone unnoticed.211 In the context of electronic privacy, courts
have been left to apply a regulatory framework designed for the
previous epoch. The controversy over cell location data takes
place in one small corner of this broad frontier. Striking the
right balance between the values to which we as a free people
are committed and the need to protect ourselves from domestic
and foreign threats is perhaps the most important task facing
our lawmakers.
It is by no means clear where that balance is to be
found, but in our institutions are policies and practices that
have served us throughout our history and that continue to
find application to contemporary problems. Foremost among
them is the doctrine of the separation of powers. Because each
206
See supra note 70 and accompanying text.
See Lockwood, supra note 8, at 317.
208
Dempsey, supra note 1, at 516-18, 529-33.
209
See Susan P. Crawford, The Ambulance, the Squad Car & the Internet, 21
BERKELEY TECH. L.J. 873, 876 (2006).
210
Id. at 889-94.
211
See Lockwood, supra note 8, at 317.
207
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branch of our government is given a limited sphere of
influence, each serves as a check on the power of the others in
order to preserve the rights and liberties of the sovereign
American people.212 Updating the Executive’s tool kit in its
struggle against both the common criminal and sophisticated
enemies of the state is an important task, but the judiciary has,
since the time of the founding, provided the check that protects
Americans’ privacy from government overreaching.213 Although
the Supreme Court has not extended the Fourth Amendment’s
warrant requirement to many forms of electronic
surveillance,214 Congress has legislated in this area and
imposed greater privacy protections than are required by the
Constitution.215 The following are some suggestions for
amendments to the existing statutes that would explicitly
create a role for judicial oversight regarding cell location data.
1. Clarifying the Scope of the Pen/Trap Statute. The
first step in the hybrid theory posits that cell location data is
accessible via the device (or process) that creates a record of all
numbers dialed by the target phone and that the government
may therefore use the legal authorization for such a record to
locate and track individuals.216 Because of the breadth of its
terms, the Pen/Trap Statute’s application to cell location data
is at least plausible.217 Perhaps Congress used such broad terms
out of a concern that pen registers would be made obsolete by
the change from analogue to digital and from wireline to
wireless telephony. Or perhaps they were concerned that
unforeseen technological changes would quickly render the new
amendments obsolete. Such an interpretation of the Pen/Trap
Statute is at least as plausible as the interpretation of the one
advanced by the hybrid theory.
Congress should amend 18 U.S.C. § 3127(3) by inserting
language such as “nor shall such information include any data
that would reveal the physical location of the phone user
(except to the extent that the location may be determined from
a wireline-connected telephone number)” after the language in
that subsection that prohibits intercepting the content of
212
Erwin Chemerinsky, The Assault on the Constitution: Executive Power and
the War on Terrorism, 40 U.C. DAVIS L. REV. 1, 4-5 (2006).
213
See Freytag v. Comm’r, 501 U.S. 868, 870 (1991) (stating that the
separation of powers is the “central guarantee of a just government”).
214
See supra notes 44-45 and accompanying text.
215
See supra note 47 and accompanying text.
216
See supra notes 61-65 and accompanying text.
217
See supra notes 80-83 and accompanying text.
2007]
THE ECPA AND CELL LOCATION DATA
417
communications.218 This amendment would preclude the use of
pen registers to track cell phones, leaving a warrant issued
under the authority of 18 U.S.C. § 3117 as the appropriate form
of authority for compelling the disclosure of cell location data.219
Such an amendment would also leave intact the “status quo” to
which Director Freeh referred in his testimony before
Congress—law enforcement agencies could still access pen
register data without learning anything about a cell phone
user’s location.220
2. Rewording the “Exception Clause.” Another possible
amendment would more clearly define Congress’ intention
behind the phrase “solely pursuant to” in the exception clause
of 47 U.S.C. § 1002. If Congress wanted to prohibit the
warrantless tracking of cell phones, this section could be
amended simply by excising the word “solely.” Such change
would end any speculation that this part of CALEA is an
implicit instruction to combine two statutes conveying different
forms of authority so as to authorize a third, remarkably more
powerful form of surveillance. As it reads now, the most
natural reading of the phrase “solely pursuant to” supports the
hybrid theorists’ textual arguments.221 The term “solely” does
indeed suggest the meaning “with another,” even if it is not (as
some courts have held) the only possible meaning.222 In the
absence of some text specifying what that other authority
should be, it is reasonable to expect law enforcement to select
its preferred form of authority and equally reasonable to expect
courts to be divided by the questions raised by government
applications for cell location data. At the very least, if Congress
does intend for § 1002 to act as the bridge between the
Pen/Trap Statute and the SCA, they should amend the section
by replacing the term “subscriber” with “user” in order to avoid
the bizarre result in the West Virginia Opinion.223
218
See 18 U.S.C § 3127(3) (2006).
See supra note 51.
220
See supra notes 175-182 and accompanying text. Note also that at least one
other commentator has suggested amending the Pen/Trap Statute, albeit in a slightly
different fashion. Rickey G. Glover, Note, A Probable Nightmare: Lifting the Fog from
the Cellular Surveillance Statutory Catastrophe, 41 VAL. U. L. REV. 1543, 1581-83
(2007). Regardless of the actual wording, any amendment to the Pen/Trap Statute
should explicitly prohibit the disclosure of an individual’s location via Pen/Trap
authority.
221
See supra notes 110-115 and accompanying text.
222
See supra notes 149-159 and accompanying text.
223
See supra notes 153-159 and accompanying text.
219
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3. Amending the Stored Communications Act. Congress
could amend the SCA section that completes the hybrid theory
in much the same way as the Pen/Trap Statute if it wanted to
prohibit warrantless cell phone tracking.224 The phrase “or any
information regarding the physical location of the user of such
service” could be inserted into the parentheses excepting the
contents of electronic communications from the aegis of 18
U.S.C. § 2703(c)(1). Such an amendment would be a good
idea regardless of whether the other amendments are made.
As one commentator noted, the SCA deals with stored
communications, but is susceptible to the argument that a
communication is “stored” the moment its existence is recorded
by phone company computers.225 The success of such an
argument would turn the statute—with its focus on making
records stored in phone company computers accessible to law
enforcement—into a prospective grant of authority to note calls
as they take place, provided they are “stored” for some trivial
amount of time before being disclosed.226 If the record of cell
towers activated by cell phone transmissions is cognizable as
“other information,” then the government could, in theory,
achieve the same result under the SCA that it sought under
the hybrid theory.227 An amendment that clearly forbade the
release of a phone user’s physical location would prevent this
crafty argument from authorizing cell phone tracking.
Whether or not Congress would want to prohibit
warrantless cell phone tracking is unclear. The legislature
could, of course, explicitly authorize the government to conduct
warrantless cell phone tracking. As long as the target phone is
never carried into an area where its user enjoys a reasonable
expectation of privacy, there would be no constitutional defect
in the application of such a statute.228 This Note has argued,
however, that such a change in the country’s electronic
surveillance regime would be a regression. Congress has
promulgated a scheme that requires a degree of judicial
oversight, commensurate with the inherent invasion of privacy,
by requiring the government to obtain an order authorizing
224
See 18 U.S.C. § 2703(c)(1) (2006).
Dempsey, supra note 1, at 539.
226
See id. By simply keeping a record in their computers for five or ten
minutes, phone companies would convert what is essentially real-time data into
“stored” communications. This information would then be disclosed to the government
on an ongoing basis.
227
See 18 U.S.C. § 2703(c)(1) (2006).
228
See supra note 46 and accompanying text.
225
2007]
THE ECPA AND CELL LOCATION DATA
419
such surveillance.229 This is good policy, respecting as it does
the tension between liberty and order that must always exist
where a people choose to live freely in a perilous world.
The hybrid theory presents a textual analysis of federal
electronic surveillance laws that is plausible on its own terms,
but fails to explain why cell location data is better analyzed as
pen register data than as data from a tracking device. It cannot
account for the regulatory design of the ECPA, discernible in
the graduated levels of judicial oversight required for more
invasive forms of surveillance230 nor for the fact that once the
government can ascertain an individual’s general location with
cell site data, there is no principled way to prevent the
government from using more sophisticated data sets to track
individuals in real time and with a high degree of precision.231
The alternative theory, by contrast, can account for the
language in the relevant statutes, support the policies
embodied in the ECPA, and retain a meaningful role for the
judiciary in determining, ex ante, how much surveillance the
executive branch may lawfully conduct.232
Law enforcement’s ingenuity is on display in the cell
location cases, and there is cause for satisfaction in the idea
that police agencies are adapting their techniques to take
advantage of emerging technologies. Yet, if we are to preserve
the right to be free from pervasive governmental intrusion in
our private lives, we must be careful how much deference we
accord to law enforcement’s claims of authority.233 Treating cell
location data as analogous to data from a tracking device
imposes a neutral and detached decision-maker between the
police, “engaged in the often competitive enterprise of ferreting
out crime,” and private citizens.234 A careful reading of the
relevant statutes demonstrates that this conclusion is not only
preferable, it is the one required by the will of Congress.
Timothy Stapleton†
229
CARR & BELLIA, supra, note 51, § 4:77, at p. 4-193.
Id.
231
See supra notes 167-170 and accompanying text.
232
See supra Part IV.B.
233
See Johnson v. United States, 333 U.S. 10, 14 (1948) (“When the right of
privacy must reasonably yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or Government enforcement agent.”).
234
Id.
†
The author would like to thank Professors Susan Herman and Wendy
Seltzer for their invaluable contributions to this Note.
230
You Say Yes, But Can I Say No?
THE FUTURE OF THIRD-PARTY CONSENT
SEARCHES AFTER GEORGIA V. RANDOLPH
I.
INTRODUCTION
The Fourth Amendment to the United States
Constitution protects against unreasonable searches and
seizures.1 One way in which courts have applied this provision
is by asserting that government agents generally cannot search
a person’s home and seize his belongings without a proper
search warrant.2 Nevertheless, a warrantless search and
seizure is considered reasonable when the person whose
belongings are being searched properly and voluntarily
consents to the search3 or when that person’s co-occupant
consents to the search.4 When a co-occupant of the search
target provides his consent, the warrantless search is valid as
long as the police reasonably believe that this person shares
authority over the common area5 of the premises.6 The next
question becomes: is a search of the common area of a home
reasonable under the Fourth Amendment when both cooccupants are physically present at the time of the search and
one gives consent while the other contemporaneously refuses to
consent? For decades, the federal circuit and state courts were
split over this issue, with most courts answering in the
1
U.S. CONST. amend. IV.
Illinois v. McArthur, 531 U.S. 326, 330 (2001); United States v. Place, 462
U.S. 696, 701 (1983).
3
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (holding that a
warrantless search was valid where the subject of a search voluntarily consented to the
search) (citing United States v. Davis, 328 U.S. 582, 593-94 (1946)).
4
United States v. Matlock, 415 U.S. 164, 171 (1974) (holding that consent to
a warrantless search by a third party possessing common authority over the premises
was valid against the absent, nonconsenting person with whom that authority was
shared).
5
A common area might be a living room, for example.
6
Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (holding that a
warrantless search was valid where it was based upon consent by a third party whom
police, at the time of entry, reasonably believed possessed common authority over the
premises).
2
421
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affirmative.7 In 2006, the United States Supreme Court took
the opposite position, holding in Georgia v. Randolph that
when one co-occupant of a common area consents to a
warrantless search of the area “a physically present cooccupant’s stated refusal to permit entry prevails, rendering
the warrantless search unreasonable and invalid as to him.”8
The Court’s holding, however, was not strong enough to provide
lower courts with a uniform answer to this question.9 While
Randolph commendably sought to protect Fourth Amendment
constitutional rights, its holding has been interpreted so
narrowly by lower courts that the rule needs further
clarification to have any significant effect on Fourth
Amendment jurisprudence.10 This Note will argue that in the
context of a search and seizure in which one co-occupant gives
consent and another is physically present and expressly refuses
to consent, the Supreme Court needs to define the terms
“physically present” and “express refusal” more clearly to
ensure that lower courts apply Randolph consistently when
analyzing the constitutionality of such searches under the
Fourth Amendment.
Part II of this Note will discuss the rule on warrantless
searches and seizures under the Fourth Amendment and the
consent exception to this rule. Part III will focus on third-party
consent to warrantless searches, with a discussion of Supreme
Court precedent on the issue prior to Georgia v. Randolph.
Next, Part IV will compare the approaches the federal circuit
courts and the state courts have taken when one co-occupant
refuses consent in the presence of a third party who grants
consent. These approaches created the split of authority that
Georgia v. Randolph sought to resolve. Part V will thoroughly
discuss the recent Supreme Court decision of Georgia v.
Randolph. Part VI will address the issue of a co-occupant’s
refusal in the presence of third-party consent to warrantless
searches since Randolph. This Part will also discuss the effects
of Randolph on lower courts and argue that the law should be
changed to reflect concerns about a defendant’s rights, the risk
7
See, e.g., United States v. Morning, 64 F.3d 531, 537 (9th Cir. 1995);
United States v. Hendrix, 595 F.2d 883, 885 (D.C. Cir. 1979) (per curiam); United
States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977); Love v. State, 355 Ark. 334, 341-42
(2003); Laramie v. Hysong, 808 P.2d 199, 203-04 (Wyo. 1991).
8
Georgia v. Randolph, 547 U.S. 103, 106 (2006).
9
See infra Part VI.A.
10
See infra Part VI.
2007]
YOU SAY YES, BUT CAN I SAY NO?
423
to domestic abuse victims, and the preservation of peace in the
home.
II.
RULE ON WARRANTLESS SEARCHES AND THE
CONSENT EXCEPTION
A.
Unreasonableness of Warrantless Searches Under
the Fourth Amendment
The Fourth Amendment provides that “the right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause. . . .”11 The “central requirement” of the Fourth
Amendment is one of reasonableness.12 Searches and seizures
of personal property are unreasonable under the Fourth
Amendment “‘unless . . . accomplished pursuant to a judicial
warrant’ issued by a neutral magistrate after finding probable
cause.”13 The warrant requirement is based on the Fourth
Amendment’s essential purpose of protecting citizens from
intrusions of privacy by the government.14 Thus, the entry into
a person’s home by the government without a warrant is a
physical intrusion that is “unreasonable per se,”15 “whether to
11
U.S. CONST. amend. IV.
Illinois v. McArthur, 531 U.S. 326, 330 (2001) (citing Texas v. Brown, 460
U.S. 730, 739 (1983)).
13
Id. (citing United States v. Place, 462 U.S. 696, 701 (1983)). This Note will
focus particularly on the reasonableness of conducting warrantless searches. For the
purposes of this Note, seizures of property only become an issue where the government
wants to use such property as evidence against the defendant as a result of such
searches.
14
Jones v. United States, 357 U.S. 493, 498 (1958). The Fourth Amendment’s
protection of a person’s privacy is based on a subjective expectation of privacy exhibited
by the person, and an objective expectation of privacy that society is prepared to
recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring); see also McDonald v. United States, 335 U.S. 451, 455-56 (1948) (stating
that “[t]he right of privacy was deemed too precious to entrust to the discretion of those
whose job is the detection of crime and the arrest of criminals. Power is a heady thing;
and history shows that the police acting on their own cannot be trusted. And so the
Constitution requires a magistrate to pass on the desires of the police before they
violate the privacy of the home.”).
15
Georgia v. Randolph, 547 U.S. 103, 109 (2006) (citing Payton v. New York,
445 U.S. 573, 586 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)).
The per se rule is derived from combining the reasonableness requirement of the
Fourth Amendment’s first clause with the warrant requirement of the Fourth
Amendment’s second clause. See Sharon E. Abrams, Comment, Third-Party Consent
Searches, the Supreme Court, and the Fourth Amendment, 75 J. CRIM. L. &
CRIMINOLOGY 963, 963 n.3 (1984).
12
424
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make an arrest or to search for specific objects.”16 Ultimately,
under our current constitutional understanding, when a
defendant challenges the validity of a warrantless search, a
court’s
analysis
begins
with
the
presumption
of
unreasonableness.17
B.
Consent Exception
Despite the per se rule that warrantless searches are
unreasonable, the Supreme Court has recognized a number of
exceptions. These exceptions occur mostly under exigent
circumstances, such as danger to the public and hot pursuit of
a suspect18 or during a search incident to arrest.19 Warrantless
searches also may be considered reasonable under the Fourth
Amendment where courts find diminished expectations of
privacy.20 Some view the exceptions, however, in a much more
narrow light. As Justice Douglas wrote, “[O]nly the gravest of
circumstances could excuse the failure to secure a properly
issued search warrant.”21
16
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (citing Payton v. New York,
445 U.S. 573 (1980); Johnson v. United States, 333 U.S. 10 (1948)).
17
Katz, 389 U.S. at 357 (holding that a government agent’s electronic
surveillance of the defendant’s conversation in a telephone booth was unconstitutional
without a proper search warrant); see, e.g., FED. R. CRIM. P. 41; Jones, 357 U.S. at 49799; Agnello v. United States, 269 U.S. 20, 33 (1925).
18
Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (holding that the Fourth
Amendment did not require police officers to delay an investigation where to do so
could gravely endanger human life).
19
Chimel v. California, 395 U.S. 752, 762-63 (1969); Jones, 357 U.S. at 499
(stating that “[t]he exceptions to a rule that a search must rest upon a search warrant
have been jealously and carefully drawn, and search incident to a valid arrest is among
them.”). Other exceptions include “investigatory detentions, warrantless arrests,
seizure of items in plain view, vehicle searches, container searches, inventory searches,
border searches, searches at sea, administrative searches, and searches in which the
special needs of law enforcement make the probable cause and warrant requirements
impracticable.” Thirty-Second Annual Review of Criminal Procedure, 91 GEO. L.J. 36,
36 (2003).
20
Illinois v. McArthur, 531 U.S. 326, 330 (2001). Some examples of
circumstances or places in which diminished expectations exist are “searches of
automobiles, drunk-driving checkpoints, temporary seizure of luggage, and a
temporary stop and limited search for weapons.” Frank J. Eichenlaub, Carnivore:
Taking a Bite out of the Fourth Amendment?, 80 N.C. L. REV. 315, 332 n.121 (2001).
21
United States v. Matlock, 415 U.S. 164, 183 (1974) (Douglas, J.,
dissenting); see also McDonald v. United States, 335 U.S. 451, 455-56 (1948) (“Absent
some grave emergency, the Fourth Amendment has interposed a magistrate between
the citizen and the police. . . . We cannot be true to that constitutional requirement and
excuse the absence of a search warrant without a showing by those who seek
exemption from the constitutional mandate that the exigencies of the situation made
that course imperative.”).
2007]
YOU SAY YES, BUT CAN I SAY NO?
425
One Fourth Amendment-based exception to the rule on
warrantless searches that has been the source of much
controversy is the consent exception.22 As set forth in
Schneckloth v. Bustamonte, the search of property, without a
warrant and without probable cause, but with proper and
voluntary consent, is valid under the Fourth Amendment.23
Proper consent must be obtained from an individual possessing
authority over the property being searched.24 To determine
whether consent is voluntary, courts use a totality of the
circumstances test, considering factors such as
(1) knowledge of the constitutional right to refuse consent; (2) age,
intelligence, education, and language ability; (3) the degree to which
the individual cooperates with the police; (4) the individual’s attitude
about the likelihood of the discovery of contraband; and (5) the
length of detention and the nature of questioning, including the use
of physical punishment or other coercive police behavior.25
To determine whether a search is reasonable based on
consent, courts use an objective standard.26 A police officer is
required to “ask him or herself what the typical, reasonable
person would have understood by the exchange between
the officer and the suspect” and to conclude whether or not
the suspect gave his consent.27 Arguably, the voluntariness of
the defendant’s consent does not have as much weight today as
it did when the Court created the consent doctrine in
Schneckloth. While a defendant’s consent must still be
voluntary, the Supreme Court’s paradigm for the consent
search doctrine has become less focused on the subjective test
of the defendant’s voluntariness and more concerned with the
22
See Note, The Fourth Amendment and Antidilution: Confronting the
Overlooked Function of the Consent Doctrine, 119 HARV. L. REV. 2187, 2187-88 (2006)
(arguing that while the Supreme Court has favored consent searches, commentators
have denounced their use and several states have banned their use because of
“controversies about racial profiling”) (citation omitted).
23
412 U.S. 218, 248 (1973).
24
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).
25
Douglas K. Yatter et al., Twenty-Ninth Annual Review of Criminal
Procedure, Warrantless Searches and Seizures, 88 GEO. L.J. 912, 946-49 (2000)
(citations omitted).
26
Rodriguez, 497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)
(“[D]etermination of consent to enter must ‘be judged against an objective standard.’”).
27
Nancy J. Kloster, Note, An Analysis of the Gradual Erosion of the Fourth
Amendment Regarding Voluntary Third Party Consent Searches: The Defendant’s
Perspective, 72 N.D. L. REV. 99, 103 (1996) (citing Florida v. Jimeno, 500 U.S. 248, 251
(1991)).
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objective test of whether the officer compelled the defendant’s
consent.28
The consent exception initially derived from the theory
that a defendant could waive his Fourth Amendment rights,29
either directly or though an agent.30 Over time, however, the
consent doctrine has broadened beyond the bounds of waiver
and agency principles.31 It has been held that a defendant’s
waiver of a constitutional right must be made knowingly and
intelligently.32 In Schneckloth v. Bustamonte, however, the
Court held that providing consent could be voluntary without
the defendant knowing that he had the right to refuse to do
so.33 The reason for this comes from balancing the need to
protect an individual’s constitutional rights while also allowing
for effective law enforcement.34 In this situation, law
enforcement purposes win out over constitutional protections
because the consent to search is not a trial or pre-trial right on
which the defendant’s “knowledge and intelligence” can easily
be judged.35 Because it was not required that defendants be
aware of their Fourth Amendment right, some justices and
commentators saw this as an erosion of constitutional
protections.36 Despite such criticism, the Supreme Court
generally favors the consent exception.37
28
Ric Simmons, Not “Voluntary” But Still Reasonable: A New Paradigm for
Understanding the Consent Searches Doctrine, 80 IND. L.J. 773, 776 (2001); see also
United States v. Drayton, 536 U.S. 194, 206-07 (2002) (noting that where an exchange
takes place between police officer and citizen in which a police officer asks a citizen for
his consent, “it dispels inferences of coercion.”).
29
Kloster, supra note 27, at 104-05 (citing Stoner v. California, 376 U.S. 483,
489 (1964)).
30
Id.
31
Id. at 105-06.
32
Illinois v. Rodriguez, 497 U.S. 177, 183 (1990) (citing Colorado v. Spring,
479 U.S. 564, 574-75 (1987)); Johnson v. Zerbst, 304 U.S. 458 (1938).
33
Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973) (“There is a vast
difference between those rights that protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment. Nothing, either in the purposes behind
requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical
application of such a requirement[,] suggests that it ought to be extended to the
constitutional guarantee against unreasonable searches and seizures.”); see also
Kloster, supra note 27, at 107.
34
INGA L. PARSONS, FOURTH AMENDMENT PRACTICE AND PROCEDURE 101
(National Institute for Trial Advocacy, 2005).
35
Id.
36
Kloster, supra note 27, at 107 (citing Schneckloth, 412 U.S. at 226
(Brennan, J., dissenting)). For a discussion on the criticism of consent searches, see
generally Note, supra note 22.
37
Note, supra note 22; see also WAYNE R. LAFAVE, 4 SEARCH AND SEIZURE: A
TREATISE ON THE FOURTH AMENDMENT § 8.1, at 5 (4th ed. 2004); United States v.
2007]
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Thus, the “strict requirement” of a warrant to conduct a
search under the Fourth Amendment is not as strict as it
seems. The Supreme Court has judicially created a number of
exceptions to the per se rule, mostly for safety and law
enforcement purposes, but also to allow an individual
possessing authority to permit the search if he voluntarily
consents. Accordingly, because any individual possessing
common authority can give consent,38 the target of the search
does not always need to consent in order for a consent search to
be reasonable and valid against him.
III.
THIRD-PARTY CONSENT SEARCHES
Under the consent exception to the Fourth Amendment,
the Supreme Court has recognized that consent may properly
be obtained from a third party if it is not obtained from the
subject of the search.39 For the purposes of this Note, the person
who is the target or subject of the search will be referred to as
the primary party.40 This is the person for whom the evidence is
being sought and whose constitutional rights are at stake. A
third party is an individual who possesses common authority to
consent to a search but who does not become a defendant
challenging the admission of evidence that is the fruit of the
search.41
Less stringent constitutional protections are afforded to
primary parties in the context of consenting to a warrantless
Drayton, 536 U.S. 194, 207 (2002) (“In a society based on law, the concept of agreement
and consent should be given a weight and dignity of its own. Police officers act in full
accord with the law when they ask citizens for consent. It reinforces the rule of law for
the citizen to advise the police of his or her wishes and for the police to act in reliance
on that understanding. When this exchange takes place, it dispels inferences of
coercion.”).
38
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).
39
United States v. Matlock, 415 U.S. 164, 170-71 (1974). The Supreme Court
had implicitly validated third-party consent searches in previous cases. See, e.g.,
Bumper v. North Carolina, 391 U.S. 543 (1968); Chapman v. United States. 365 U.S.
610 (1961); Amos v. United States, 255 U.S. 313 (1921); Weeks v. United States, 232
U.S. 383 (1914).
40
The term “primary party” has not been used by courts. Elizabeth Wright
adopted the phrase for the convenience of discussing third-party consent searches. See
Elizabeth A. Wright, Note, Third Party Consent Searches and the Fourth Amendment:
Refusal, Consent, and Reasonableness, 62 WASH. & LEE L. REV. 1841, 1843 n.13 (2005).
41
Matlock, 415 U.S. at 171 (stating that the justification of a warrantless
search is not limited to proof of voluntary consent given by the defendant, but also
extends to permission to search obtained from a third party). Of course, evidence as a
result of the search can be used against the third party. See Donald v. State, 903 A.2d
315, 318-21 (Del. 2006).
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search than in other aspects of a criminal prosecution, such as
the waiving of trial rights.42 Defendants cannot effectively
waive their trial rights unless the waiver is “knowing and
intelligent,” whereas the validity of a consent to a warrantless
search requires only voluntariness, evaluated on a variety of
factors.43 Given that the target of a search lacks the heightened
constitutional protection of a defendant waiving a trial right, it
is perhaps not surprising that a third party can effectively
consent to a search against the defendant without the
defendant’s participation.
A.
Matlock Rule: Common Authority and Assumption
of Risk
United States v. Matlock has been at the core of
Supreme Court jurisprudence on the third-party consent
exception for roughly the last three decades.44 The Matlock
Court developed the rule that “consent of one who possesses
common authority over premises or effects is valid as against
the absent, nonconsenting person with whom that authority is
shared.”45 In Matlock, the police arrested the defendant
Matlock in the front yard of the house where he and Mrs. Gayle
Graff lived.46 When the police officers went to the door, where
Mrs. Graff stood, they asked her if they could search the
house.47 The officers entered and searched the house based on
Mrs. Graff’s consent without asking the defendant for his
consent, despite knowing that Matlock lived there as well.48
After Mrs. Graff told the officers that she shared the east
bedroom with the defendant, the police entered that bedroom
and found evidence to be used against the defendant.49 The
Court held that Mrs. Graff’s voluntary consent validated the
warrantless search against Matlock because she had common
authority over the bedroom.50
42
Schneckloth, 412 U.S. at 245-46; see also, Abrams, supra note 15, at 967.
See supra Part II.B; see also Illinois v. Rodriguez, 497 U.S. 177, 183 (citing
Colorado v. Spring, 479 U.S. 564, 574-75 (1987); Johnson v. Zerbst, 304 U.S. 458
(1938)).
44
Abrams, supra note 15, at 969.
45
Matlock, 415 U.S. at 170.
46
Id. at 166.
47
Id.
48
Id.
49
Id. at 166-67.
50
Id. at 164, 177.
43
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YOU SAY YES, BUT CAN I SAY NO?
429
In order for a third party to have the authority to
properly give consent, he must share common authority over
the area or have some other sufficient relationship with the
primary party over the premises being searched.51 The two
main rationales behind the Matlock “common authority” rule
are: (1) the third party has mutual use of the property being
searched because he has joint access or control with the
primary party52 and (2) the primary party has assumed the risk
that a person with whom he shares an area will allow visitors
into that area.53 Several commentators have referred to the
Matlock rule as the “possession and control” or “access and
control” test.54
Even before Matlock, many lower federal and state
courts had used “common authority” principles to judge the
validity of third-party consent searches; the Matlock decision
was the Supreme Court’s ratification of this approach.55 Despite
this ratification, Matlock did not clearly articulate the
parameters and constitutional justifications for its third-party
consent exception.56 Although the Matlock Court included an
express reference to the “absent nonconsenting person,”57 its
“common authority” analysis did not mention Matlock’s
51
See id. at 171. For an example of the factors courts have used to determine
whether a third party had common authority, see United States v. Groves, 470 F.3d
311, 319 (7th Cir. 2006).
52
This principle is not based on rules of property. Rather than giving the
authority to consent to the person who owns the property being searched, this principle
gives only the persons who use the property the right to decide if they want to permit
visitors to enter and search the area. Matlock, 415 U.S. at 171 n.7. It has been held
that if a third party, even the property owner, does not share mutual use of the
property with the defendant, this does not create the common understanding of
authority to permit guests to enter without the consent of the occupant of the premises.
See Georgia v. Randolph, 547 U.S. 103, 112 (2006). For the proposition that a landlord
cannot by right give valid consent for a search of a tenant’s area, see Chapman v.
United States, 365 U.S. 610, 616-17 (1961). For the proposition that a hotel manager
cannot give valid consent to search a guest’s room, see Stoner v. California, 376 U.S.
483, 489 (1964).
53
The “assumption of risk” theory, derived from tort law, espouses that
“when two or more co-occupants share a space in common, each one accepts the
possibility that another may permit a search.” Wright, supra note 40, at 1857-58; see
LAFAVE, supra note 37, § 8.3(a), at 148-49; Frazier v. Cupp, 394 U.S. 731, 740 (1969)
(holding that the consent to search a duffel bag given by petitioner’s cousin was valid
because petitioner allowed his cousin to use the bag and therefore assumed the risk
that his cousin might allow someone else to look inside).
54
E.g., Abrams, supra note 15, at 967-68.
55
Id. at 967-69.
56
Id. at 966 (quoting John B. Wefing & John G. Miles, Jr., Consent Searches
and the Fourth Amendment: Voluntariness and Third Party Problems, 5 SETON HALL L.
REV. 211, 261 (1974)).
57
Matlock, 415 U.S. at 170.
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particular facts. Thus, the rule does not necessarily require
that the primary party be absent for the third-party consent
search to be valid.58 In addition, because the defendant in
Matlock was arrested in the front yard and detained in a squad
car near the house when the police obtained consent,59 lower
courts disagree as to whether Matlock’s absence was truly a
deciding factor in the Court’s holding.60
Despite the problems courts face in interpreting the
scope of the ruling, Matlock clearly allows warrantless searches
of a common area to be constitutional if a third party having
common authority consented to the search.
B.
The Illinois v. Rodriguez Rule: Apparent Authority
About fifteen years after Matlock, the Supreme Court
held that a third party did not necessarily need to have
common authority over the premises in order for a third-party
consent search to be valid. Generally, under the Fourth
Amendment, police officers do not need to be factually correct
in their assessment of what evidence a search will produce in
order for a search to be reasonable.61 In Illinois v. Rodriguez,
this principle was extended so that police officers do not need to
be factually correct about who has common authority to
consent to a search.62
Rodriguez held that if the police reasonably believe,
even if erroneously, that a person who consents to a
warrantless police entry is a resident of (or has common
authority over) the premises, the search is valid and its fruits
may be used as evidence against the defendant.63 In Rodriguez,
Gail Fischer told the police that Edward Rodriguez assaulted
58
See Matlock, 415 U.S. at 968; see also Matlock, 415 U.S. at 169-72; Wright,
supra note 40, at 1872 (explaining that “[i]f common authority is the basis for third
party consent searches, then the primary party’s location is irrelevant”).
59
See Georgia v. Randolph, 547 U.S. 103, 109-10 (2006).
60
Abrams, supra note 15, at 970; see also id. at 977 (arguing that “[a] theory
that would allow a defendant’s presence during and objection to a third-party consent
search to invalidate that search . . . finds no theoretical support in the Matlock
decision”); Wright, supra note 40, at 1871 (explaining that “[c]ourts that allowed third
party consent to trump the primary party’s refusal concentrated on the fact that the
defendant [in Matlock] was actually present in his front yard, though the police failed
to ask his permission to search, and, instead, received permission from a co-occupant of
the house”) (citing United States v. Sumlin, 567 F.2d 684, 687 (6th Cir. 1977)).
61
Illinois v. Rodriguez, 497 U.S. 177, 184 (1990).
62
Id. at 184.
63
Id. at 186-89.
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YOU SAY YES, BUT CAN I SAY NO?
431
her.64 Fischer consented to take the police to an apartment
where she said Rodriguez was asleep so they could arrest him.65
Fischer referred to the apartment as “our apartment” and told
the police that she had clothes and furniture there.66 The
police entered the apartment without obtaining an arrest
warrant or a search warrant; upon entering, they found
contraband in plain view and proceeded to arrest Rodriguez,
who was sleeping in the bedroom.67 The Court remanded for a
determination of whether the police officers reasonably
believed that Fischer had the authority to consent to a search
of the apartment.68 If the lower court found that the police
reasonably believed she had common authority, then the
search would be valid.69 The issue in Rodriguez was not
whether the defendant waived his Fourth Amendment right,
but whether the police violated his right to be free from
unreasonable searches.70 Therefore, the focus of reasonableness
is no longer on the defendant’s actions or inactions to
determine whether he subjectively consented, but rather on the
police officer’s objective factual determination of whether a
reasonable officer would believe properly authorized consent
has been given.71
In effect, the Rodriguez Court adopted the doctrine of
apparent authority to apply to third-party consent searches.72
Under agency law, apparent authority allows an agent to bind
his principal where it appears that the agent has authority to
act for the principal, even if the agent does not actually have
authority.73 Accordingly, if a third party does not actually have
common authority to give consent to the police, then an absent
64
Id. at 179.
Id.
66
Id.
67
Id. at 180.
68
Id. at 189.
69
Id. at 188-89.
70
Id. at 187.
71
Id. at 188 (“Determination of consent to enter must ‘be judged against an
objective standard: would the facts available to the officer at the moment . . . ‘warrant a
man of reasonable caution in the belief’ that the consenting party had authority of the
premises?”) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)); see also Kloster, supra
note 27, at 103.
72
The Court had previously rejected the applicability of this doctrine in
Stoner v. California. 376 U.S. 483, 488 (1964) (stating that Fourth Amendment rights
“are not to be eroded by unrealistic doctrines of ‘apparent authority’ ”).
73
See W.W. Allen, Annotation, Doctrine of Apparent Authority as Applicable
Where Relationship Is that of Master and Servant, 2 A.L.R. 2D 406, § 1 (1948) (citations
omitted).
65
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primary party is still vulnerable to a warrantless search. As a
result of Rodriguez, a third-party consent search can be valid
without a primary party necessarily assuming the risk that
this person might permit someone to enter and search.74 Thus,
the apparent authority rule of Rodriguez undercuts the key
principle of “assumption of risk” in the Matlock rule.75 Justice
Marshall noted this problem in his dissent, arguing that the
constitutionality of the Matlock “assumption of risk” rule rested
on the idea that a person had voluntarily given up his
expectation of privacy when he shared access or control of a
common area with a co-occupant.76 If police officers are
mistaken about a third party’s authority to consent, the search
loses its “constitutional footing” because the defendant may not
have shared access or control with that person, and thus the
defendant would not have a diminished expectation of
privacy.77 After Rodriguez, one commentator argued that the
apparent authority test does not properly shield citizens from
privacy intrusions by the government as required by the
Fourth Amendment.78 Another commentator, not expecting the
“apparent authority test” to be adopted, hypothesized several
years before Rodriguez that “[i]f searches are validated merely
because police think that they are reasonable, very few
searches will be found constitutionally invalid.”79 Thus, there is
a strong argument that the Rodriguez rule is a violation of the
Fourth Amendment.
Nevertheless, the Supreme Court was clearly moving in
the direction of expanding the third-party consent exception.
The lower federal courts and the state courts accordingly
expanded this exception as well.
74
Wright, supra note 40, at 1858. For example, if the police reasonably
believe that a landlord has common authority over a tenant’s apartment, his consent
will validate a warrantless search of the apartment despite the fact that the tenant did
not give the landlord the authority to permit the police to enter. See supra note 52; see
also Gregory S. Fisher, Search and Seizure, Third-Party Consent: Rethinking Police
Conduct and the Fourth Amendment, 66 WASH. L. REV. 189, 200 (1991) (“Rodriguez
effectively destroys the common authority test.”).
75
See supra note 53 and accompanying text.
76
Rodriguez, 497 U.S. at 194 (Marshall, J., dissenting).
77
Id.
78
Fisher, supra note 74, at 198-99; see also Kloster, supra note 27, at 112-13
(arguing that by validating warrantless searches where a consenting party does not
have at least some actual control over the premises, “the Court took a final bite from
the already devoured Fourth Amendment”).
79
Abrams, supra note 15, at 977-78 (arguing that a theory in which the
reasonableness of a search depends on the police officers’ perceptions at the time of the
search has major flaws).
2007]
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YOU SAY YES, BUT CAN I SAY NO?
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THIRD-PARTY CONSENT SEARCHES AND PRESENT
PRIMARY PARTY REFUSAL BEFORE RANDOLPH
Arguably, the Matlock and Rodriguez holdings only
resolved the issue of third-party consent when the primary
party is absent. The Supreme Court had not expressly
addressed the question of whether a warrantless search is valid
when the police allow a third party’s consent to override a
nonconsenting primary party who is present at the time of the
search. Matlock left courts with two possible interpretations.
First, Matlock could be interpreted to imply that a search is
valid whenever a third party with common authority consents
to a search, even if his co-occupant is present and objects.80
Second, under a more literal interpretation of the Court’s
ruling, Matlock could be read to limit the validity of third-party
consent only to searches against the “absent, nonconsenting
person.”81 The latter interpretation requires the consent of both
present co-occupants under the rationale that both have equal
rights over the home and one co-occupant’s consent should not
have more weight than the other’s refusal.82 This interpretation
is more consistent with the objective of the Fourth Amendment:
to protect against an intrusion by the government on one’s
expectation of privacy.83 While it is reasonable to believe that a
co-occupant assumes the risk of such an intrusion when he is
absent and leaves his property in the hands of his co-occupant,
it is not reasonable to do so when he is present and objects to
the intrusion.84 To undermine one’s refusal because of another’s
consent is to undermine his or her personal autonomy.
Nevertheless, despite “the latter [interpretation’s]
somewhat greater appeal,”85 most federal and state courts had
adopted the former view.86 The clear majority held that Matlock
allows third-party consent to trump primary party refusal
regardless of whether the primary party was present or absent
80
This is because of the fact that the defendant in Matlock was present in the
front yard just before the search and in the squad car near the house at the time of the
search. See id. at 975; United States v. Matlock, 415 U.S. 164, 179 (1974) (Douglas, J.,
dissenting).
81
Matlock, 415 U.S. at 170.
82
Id. at 170 (emphasis omitted); LAFAVE, supra note 37, at 159, § 8.3(d)
(citations omitted).
83
See supra note 14 and accompanying text.
84
See infra notes 119-120 and accompanying text.
85
LAFAVE, supra note 37, at 159, § 8.3(d).
86
See Georgia v. Randolph, 547 U.S. 103, 108 n.1 (2006).
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at the time of the search.87 All the federal circuit courts that
had addressed this question had taken this position.88 Nearly
all the state courts had reached the same conclusion as well.89
A minority view, however, had interpreted Matlock narrowly
by invalidating third-party consent when the primary party is
present and nonconsenting.90 The few state courts that had
adhered to this view gave more weight to the present primary
party’s refusal than to the third party’s consent.91 Thus, some
disagreement had existed among the courts over the
reasonableness of third-party consent in the situation of a
“disagreeing co-occupant.”92
A.
Majority View
All the federal circuit courts that had addressed this
question had held that third-party consent trumps primary
party refusal.93 In the Ninth Circuit case of United States v.
Morning,94 for example, the defendant answered the door to
federal agents and objected to a search before the defendant’s
co-occupant came to the door and provided the agents with
consent.95 The court determined that the federal agents’ search
of the defendant’s house was valid against the defendant
despite his presence and objection to the search because his cooccupant had consented.96 The court struggled with applying
Matlock because the defendant in Matlock was on the scene
when the police asked the third party for consent, and the
Court was unclear about the significance of the primary party’s
location in this situation.97 Prior Ninth Circuit cases had
interpreted Matlock to imply that it did not matter if the
87
See Randolph, 547 U.S. at 108 n.1.
Id.; see also Linda Greenhouse, Roberts Dissent Reveals Strain Beneath
Court’s Placid Surface, N.Y. TIMES, Mar. 23, 2006, at A1.
89
See Randolph, 547 U.S. at 108 n.1; Greenhouse, supra note 88.
90
See, e.g., State v. Randolph, 604 S.E.2d 835 (2004); State v. Leach, 782
P.2d 1035 (Wash. 1989); Silva v. State, 344 So. 2d 559 (Fla. 1977).
91
Cf. Abrams, supra note 15, at 975 (arguing that, despite the author’s
disagreement with the principle, the Matlock test seems to mandate the result that
one’s objection to a police search of one’s own home can be overridden by the consent of
another occupant of that home).
92
Id. at 969.
93
See infra notes 94-107.
94
64 F.3d 531 (9th Cir. 1995).
95
Id. at 532.
96
Id. at 537.
97
Id. at 534 (“[W]hile Matlock rendered the law in this area translucent, it
did not render it transparent”).
88
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defendant was present or absent, but only whether the third
party had common authority over or other sufficient
relationship to the premises.98 Ultimately, the Morning court
applied the Matlock rule to find that the defendant assumed
the risk by sharing the house with another occupant, and
therefore his Fourth Amendment rights were not violated
because there was a reasonable expectation that the cooccupant could allow someone to enter.99
To reach its conclusion, the Morning court looked to how
other federal circuits had addressed the issue.100 The Sixth
Circuit, in United States v. Sumlin, had held that a defendant’s
presence and refusal to consent did not matter, noting that in
Matlock the defendant was in the front yard at the time of the
search.101 As in Matlock, the defendant in Sumlin was first
arrested, but unlike Matlock, Sumlin was asked for his consent
before the police obtained consent from his female
companion.102 The Sumlin court determined that the
defendant’s refusal to consent did not overcome the assumed
risk that a co-occupant would expose common private areas to
a search; thus, he did not have a reasonable expectation of
privacy.103 Similarly, in United States v. Donlin, the First
Circuit held that “[v]alid consent may be given by a defendant
or a third party with ‘common authority’ over the premises”
and that “[t]hird party consent remains valid even when the
defendant specifically objects to it.”104 The D.C. Circuit held in
United States v. Hendrix that consent obtained from a thirdparty joint occupant was valid when another occupant had
been present and objected to search.105 The Eleventh Circuit
held in Lenz v. Wilburn that the consent of a third party with
common authority is valid, “even when a present subject of the
search objects.”106 The Fifth Circuit held in United States v.
Baldwin that third-party consent trumps primary party refusal
98
E.g., id. at 536; United States v. Childs, 944 F.2d 491, 495 (9th Cir. 1991);
United States v. Canada, 527 F.2d 1374, 1379 (9th Cir. 1975).
99
United States v. Morning, 64 F.3d 531, 534, 537 (9th Cir. 1995).
100
Id. at 534.
101
United States v. Sumlin, 567 F.2d 684, 687 (6th Cir. 1977).
102
Id.
103
Id. at 688.
104
United States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992).
105
United States v. Hendrix, 595 F.2d 883, 885 (D.C. Cir. 1979) (per curiam).
106
Lenz v. Wilburn, 51 F.3d 1540, 1548 (11th Cir. 1995).
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in an automobile search.107 In sum, no federal circuit court
before Randolph had held that a search is unreasonable where
the police rely on the consent of a third party in the face of an
objection to the search by a physically present co-occupant.
Most state courts had agreed with the federal circuit
courts. These courts admitted evidence against a defendant
who was present and who objected at the time of a warrantless
search if a co-occupant gave consent.108 In the Arkansas case of
Love v. State, for example, the defendant refused consent, but
his co-occupant consented, and as a result of the permitted
entry, the police officers saw contraband in the defendant’s
bedroom from the living room.109 The court admitted the
contraband into evidence over the defendant’s objection.110 On
both the state and federal circuit court levels, the majority view
had been that third-party consent trumps present primary
party refusal.
B.
Minority View
However, not all state courts agreed. A minority of state
courts has held that a present primary party’s refusal can
trump a third party’s consent. The leading post-Matlock case
that adheres to this view is Florida’s Silva v. State.111 There,
Mrs. Brandon, who lived with the defendant, called the police
from outside the home after the defendant had hit her.112 When
the police arrived, she let them in and informed them about the
defendant’s guns kept in a hall closet.113 Mrs. Brandon
consented to a search of the closet, and, despite the present
defendant’s objections, the police searched the closet and found
the guns.114 The Silva court held that the search was
unconstitutional on the theory that it is reasonable for a person
whose property is being searched to have “controlling authority
to refuse consent” and that “a present, objecting party should
107
United States v. Baldwin, 644 F.2d 381, 383 (5th Cir. 1981); see also United
States v. Morales, 861 F.2d 396, 400 (3d Cir. 1988).
108
See Georgia v. Randolph, 547 U.S. 103, 108 n.1 (2006).
109
Love v. State, 138 S.W.3d 676, 680-81 (Ark. 2003).
110
Id. at 681; see also Laramie v. Hysong, 808 P.2d 199, 203-04 (Wyo. 1991).
111
344 So. 2d 559 (Fla. 1977); see also Lawton v. State, 320 So. 2d 463, 464
(Fla. Dist. Ct. App. 1975) (“[T]he search cannot stand because appellant was physically
present on the premises and affirmatively objected to the search.”).
112
Silva, 344 So. 2d at 560.
113
Id.
114
Id.
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YOU SAY YES, BUT CAN I SAY NO?
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not have his constitutional rights ignored because of a
leasehold or other property interest shared with another.”115
Similarly, the Supreme Court of Washington had held
in State v. Leach that the police must obtain the consent of a
cohabitant who is present and able to object.116 In Leach, the
evidence was not even clear that the defendant objected to the
search.117 The Washington court, however, interpreted Matlock
only to refer to “absent, nonconsenting persons,” and sought to
decide whether the rule was applicable to present primary
parties.118 The court examined both positions and ultimately
held that an individual does not assume the risk that a
cohabitant will permit someone’s entrance over his objection
when he is present. The assumption of risk principle is only
reasonable, and thus applicable, when the individual is
absent.119 The court’s majority reasoned that to rule otherwise
would be placing “expediency over an individual’s Fourth
Amendment guarantees,” and the court “refuse[d] to beat a
path to the door of exceptions.”120
While a small minority of state courts had invalidated
third-party consent searches in cases of present primary party
refusal, the majority of courts in this country had refused to
apply the Fourth Amendment in these situations. Instead,
most courts had interpreted Matlock to mean that third-party
consent takes precedence over a primary party’s refusal,
whether or not the primary party is physically present at the
time of the search. Although the minority view was not widely
held, a lack of unanimity had developed over the issue prior to
the Supreme Court’s consideration of Georgia v. Randolph.
115
Id. at 562. However, under facts quite similar to Silva, the New York Court
of Appeals held to the contrary, finding that “where an individual shares with others
common authority over premises or property, he has no right to prevent a search in the
face of the knowing and voluntary consent of a co-occupant with equal authority.”
People v. Cosme, 397 N.E.2d 1319, 1322 (1979).
116
State v. Leach, 782 P.2d 1035, 1036 (Wash. 1989).
117
Id. at 1038. When a detective came to search the defendant’s office with
the defendant’s girlfriend, the defendant was present and was then placed under arrest
and seated in an office chair. Id. at 1036.
118
Id. at 1038.
119
Id. at 1039.
120
Id. at 1040; see also People v. Mortimer, 361 N.Y.S.2d 955, 958 (App. Div.
1974) (“[I]f the Fourth Amendment means anything, it means that the police may not
undertake a warrantless search of defendant’s property after he has expressly denied
his consent to such a search. Constitutional rights may not be defeated by the
expedient of soliciting several persons successively until the sought-after consent is
obtained.”). Georgia was also one of the states that adhered to the minority view. See
infra Part V.B.
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V.
THE UNITED STATES SUPREME COURT ADDRESSES
THE ISSUE IN GEORGIA V. RANDOLPH
When a Georgia Supreme Court case dealing with this
issue reached the United States Supreme Court in 2005, the
Court granted certiorari to resolve the split in authority.121
Despite the existence of a clear majority view, the Supreme
Court resolved the issue in favor of the minority view.122
Although the Court had expanded the consent exception in
recent years,123 in 2006 it took a step back by restricting the
validity of third-party consent searches in Georgia v.
Randolph.124 As a result, warrantless searches are
unreasonable and invalid against a primary party who is
present and expressly refuses consent, even if a third party
having common authority gives his consent.125
A.
The Facts of Randolph
Scott Randolph and his wife Janet were separated in
May 2001, when Janet left their marital residence in Georgia
with their son to stay with her parents in Canada.126 Two
months later, Janet returned with their child to their home in
Georgia.127 One morning, not long after having returned, Janet
called the police complaining that after a domestic dispute with
her husband, Scott took away their son.128 When the police
arrived at the house, Janet accused Scott of using cocaine.129
When Scott arrived at the house, he denied being a cocaine
user and accused his wife of having drug and alcohol
problems.130 Janet then volunteered information to the police
that there were drugs in the house.131 When one of the officers
asked Scott for permission to search the house, “he
unequivocally refused,” but when the officer subsequently
121
122
123
124
125
126
127
128
129
130
131
Georgia v. Randolph, 547 U.S. 103, 108 (2006).
Id.
See supra Part III.
Randolph, 547 U.S. at 108.
Id. at 120.
Id. at 106.
Id.
Id. at 107.
Id.
Id.
Id.
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asked Janet for consent, she provided it.132 The officer entered,
and Janet showed him to a “bedroom that she identified as
Scott’s.”133 In the bedroom, the officer found a drinking straw on
which he suspected there was cocaine.134 The officer then left
the house to apply for a warrant, but when he returned Janet
withdrew her consent.135 The police then obtained a search
warrant and conducted a search from which they found
evidence leading to Scott Randolph’s indictment for possession
of cocaine.136
B.
The Georgia Courts’ Decisions
The defendant argued that the warrantless search was
unauthorized because, despite his wife’s consent, he expressly
refused the search.137 The trial court denied his motion to
suppress evidence on the grounds that the search was valid
based on his wife’s common authority to consent.138 The Georgia
Court of Appeals reversed, and the Georgia Supreme Court
affirmed,139 thereby applying the minority view on the issue.
Georgia’s highest court found Matlock distinguishable because
Randolph was not absent in this case as the defendant was in
Matlock.140
C.
The Supreme Court’s Decision
With a 5-3 majority141 opinion written by Justice Souter,
the Supreme Court affirmed the Georgia Supreme Court’s
decision in favor of the defendant.142 The majority noted that
widely shared social expectations have traditionally had a
great significance when assessing the reasonableness of Fourth
132
Id.
Id.
134
Id.
135
Id.
136
Id.
137
Id. at 107-08.
138
Id.
139
Id. at 108. The Georgia Supreme Court stated, “[T]he consent to conduct a
warrantless search of a residence given by one occupant is not valid in the face of the
refusal of another occupant who is physically present at the scene to permit a
warrantless search.” State v. Randolph, 604 S.E.2d 835, 836 (Ga. 2004).
140
State v. Randolph, 604 S.E.2d at 837.
141
Justice Alito did not participate in the opinion because he was newly
appointed and did not join the bench until after the Court had heard oral arguments on
the case. See Randolph, 547 U.S. at 123; Greenhouse, supra note 88.
142
Randolph, 547 U.S. at 122-23.
133
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Amendment consent search cases.143 Under the Matlock rule,
these social expectations, which are influenced by property
laws but not controlled by them, allow co-occupants to have
certain authority over their shared property that may affect
each other’s interests.144 The Court agreed with Matlock that it
would be extraordinary for visitors to make sure that all
cohabitants of a household do not object to their entry before
accepting an invitation to come in the house.145 Nevertheless,
the majority stated that the issue of the reasonableness of a
search where the police rely on the consent of one co-occupant
in the face of an objection by another had not yet been
addressed.146 According to the majority, because co-occupants
generally do not have superior rights over other co-occupants,
Matlock’s common authority principle does not apply to
situations where a co-occupant’s consent would override the
express objection of another co-occupant.147 The Court noted
that it had previously used customary social expectations to
assert that “overnight houseguests have a legitimate
expectation of privacy in their temporary quarters.”148
Accordingly, it follows that a resident of the home should have
this expectation as well.149 Therefore, a primary party’s
objection to a search should be respected because he has an
expectation of privacy as one of the co-occupants of the home
being searched.150
The Court applied the long-held principle of respecting
the privacy of one’s home151 as well as the old adage that a
man’s home is his castle152 to support its reasoning.153 The Court
143
Randolph, 547 U.S. at 111.
Id.
145
Id. at 111-12.
146
Id. at 109.
147
Id. at 114 (“[T]here is no common understanding that one co-tenant
generally has a right or authority to prevail over the express wishes of another,
whether the issue is color of curtains or invitations to outsiders.”).
148
Id. at 113 (citing Minnesota v. Olson, 495 U.S. 91 (1990)).
149
Id.
150
See id.
151
Id. at 115 (quoting Wilson v. Layne, 526 U.S. 603, 610 (1999)).
152
Id. (quoting Miller v. United States, 357 U.S. 301, 307 (1958)).
153
Id. (asserting that “[d]isputed permission is thus no match for this central
value of the Fourth Amendment, and the State’s other countervailing claims do not add
up to outweigh it”). The majority reasoned that an alternative to allowing a third-party
consent search would be for the co-occupant to deliver evidence or information to the
police. Id. at 115-16 (citing Coolidge v. New Hampshire, 403. U.S. 443, 487-89 (1971)).
The police could also rely on information given by a co-occupant to obtain a warrant,
144
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441
recognized that certain situations create exigencies that may
justify immediate action by the police,154 but emphasized that
there needs to be a clear justification for government searches
over a resident’s objection.155
On the other hand, the majority was not completely
deferential to the defendant.156 The Court was careful not to
overrule the holdings of Matlock or Rodriguez, making it
particularly clear that Matlock’s rule that a third-party consent
search is reasonable over an absent, nonconsenting co-habitant
still stands firmly.157 Therefore, if a primary party is not
present and does not make an express objection to the search,
the third party’s consent is valid. Moreover, the police do not
need to take affirmative steps to obtain the primary party’s
permission even if he is nearby, as long as the police do not
remove the potentially objecting co-occupant from the entrance
to avoid a possible objection.158 Thus, under the facts of
Matlock, in which the defendant was in a nearby squad car, or
under the facts of Rodriguez, in which the defendant was
asleep in the apartment, the Randolph holding would still
deem the searches in both cases reasonable.159
D.
Justice Breyer’s Concurrence
Although Justice Stevens and Justice Breyer both joined
the majority’s judgment, each wrote his own concurring
opinion.160 Justice Breyer’s opinion set forth the idea that there
should be no “bright-line rules” to determine whether
which is preferable to conducting a warrantless search. Id. at 116-17 (citing United
States v. Ventresca, 380 U.S. 102, 107 (1965)).
154
Id. at 116 n.6 (citing Illinois v. McArthur, 531 U.S. 326, 331-32 (2001)).
Examples of such exigencies include preventing the objecting tenant from destroying
evidence while police get warrant, or to provide protection in domestic violence
situations. See id.
155
Id. at 120.
156
See id. at 121-22.
157
Id. at 121 (“[I]f a potential defendant with self-interest in objecting is in
fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable
search, whereas the potential objector, nearby but not invited to take party in the
threshold colloquy, loses out.”). Cf. Abrams, supra note 15, at 968-69 (arguing that
Matlock’s “final formulation” does not mention a nonconsenting party’s absence, and
thus the defendant’s location does not limit the third-party consent exception).
158
Randolph, 547 U.S. at 120-23.
159
Id. at 121. See supra Part III.A-B.
160
Justice Stevens’s concurrence focused on the principle that neither spouse
has the power to override the other’s constitutional right to deny entry to their castle.
Id. at 123-25 (Stevens, J., concurring).
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warrantless searches are valid.161 Instead, he argued that the
Court must examine the “totality of the circumstances” in order
to decide whether the search is reasonable under the Fourth
Amendment.162 A situation in which a possible domestic abuse
victim invites a police officer into the home or consents to the
officer’s entry would be a circumstance in which one cooccupant’s consent would be reasonable in the face of another’s
objection.163 Justice Breyer concluded that in this case, the
totality of circumstances did not justify the search.164
E.
Chief Justice Roberts’s Dissent
Each of the three dissenters in Randolph wrote a
separate opinion.165 Chief Justice Roberts, joined by Justice
Scalia, wrote his first dissenting opinion since joining the
Supreme Court. Roberts criticized the majority for providing a
“case-specific” holding instead of a rule that would provide
practical guidance for the police in the field and for the lower
courts.166 Accordingly, his dissent also contrasted with Justice
Breyer’s “totality of circumstances” approach.167
Chief Justice Roberts disagreed with the majority’s
interpretation of the assumption of risk principles applied in
Matlock, arguing that a defendant’s protection of privacy
161
Randolph, 547 U.S. at 125 (Breyer, J., concurring); see also id. at 121
(majority opinion) (stating that “we have to admit that we are drawing a fine line” by
finding a search unreasonable as to the potential defendant who is at the door and
objects, but not unreasonable as to “the potential objector nearby but not invited to
take part in the threshold colloquy”).
162
Id. at 125 (Breyer, J., concurring) (“[T]he Fourth Amendment does not
insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can
capture the ever changing complexity of human life.”).
163
Id. at 127.
164
Id.
165
Justice Scalia’s separate dissenting opinion was a direct response to
Justice Stevens’s concurrence. See supra note 160; Randolph, 547 U.S. at 142-45
(Scalia, J., dissenting) (arguing that, although Justice Stevens seemed to be concerned
about the relative rights of women to their husbands, the “effect of [the] decision . . . is
to give men the power to stop women from allowing police into their homes—which
is . . . precisely the power that Justice Stevens disapprovingly presumes men had in
1791”). Justice Thomas’s dissent argued that when Janet Randolph led the police
officer into the house and showed him the evidence of drug use, this was not a search
under the Fourth Amendment. Id. at 145-46 (Thomas, J., dissenting); see also Coolidge
v. New Hampshire, 403 U.S. 443, 487 (1971) (holding that when a citizen led police into
a house to show them evidence relevant to the investigation of a crime, the citizen was
not acting as an agent of the police, and no Fourth Amendment search had occurred).
166
Randolph, 547 U.S. at 142 (Roberts, C.J., dissenting) (citing id. at 126-27
(Breyer, J., concurring)).
167
Id. at 126-27 (Breyer, J., concurring).
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cannot depend upon whether or not he is present at the door at
the time of the search, as the majority maintains.168 The Chief
Justice argued that a third party’s consent is valid even when
the primary party is present and objects because the police
would only be searching common areas over which both
residents have authority.169 If a person does not want to assume
the risk that a co-occupant might consent to a police search, he
can place his belongings “in an area over which others do not
share access and control.”170 This search was also justified,
Roberts argued, on grounds that the majority’s rule would
hinder the police from entering houses where domestic violence
is occurring.171 This is because, under the majority rule, the
police cannot enter a home to assist with the dispute if the
abuser objects to the police’s entry.172
VI.
POST-RANDOLPH ANALYSIS
According to a Northern District of California court,
“Randolph does not represent a great change in Fourth
Amendment jurisprudence.”173 Since Randolph, very few state
or federal courts have used its holding to rule that third-party
consent searches are unreasonable where the primary party is
physically present at the time of the search. There are two
reasons why this is so. First, the fact-specific and narrow
holding of Randolph marginalizes its importance as a Fourth
Amendment case.174 Second, even if Randolph does apply
factually, public policy arguments may weigh in favor of state
and federal courts adhering to the pre-Randolph majority view
that these types of warrantless searches are reasonable. A
solution to this problem is to modify the definitions of
“physically present” and “express refusal” so that they can be
interpreted more uniformly while also compromising between
conflicting policy considerations.
168
Id. at 134-35, 134 n.1 (Roberts, C.J., dissenting).
Id. at 133-36.
170
Id. at 135.
171
Id. at 139.
172
Id.
173
United States v. McGregor, 2006 U.S. Dist. LEXIS 22503, at *15 n.4 (N.D.
Cal. Apr. 17, 2006).
174
David A. Moran, The End of the Exclusionary Rule, Among Other Things:
The Roberts Court Takes on the Fourth Amendment, 2006 CATO SUP. CT. REV. 283, 293
(2006).
169
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Randolph’s Narrow Holding and Lack of
Factual Applicability
Since the Supreme Court’s decision, many state and
federal courts have distinguished their cases factually from
Randolph, finding it to be inapplicable.175 These courts have
interpreted the decision quite narrowly, as if it has “almost no
precedential value.”176 In theory, of course, Randolph
represents a marked change and provides a new restriction to
the third-party consent exception to Fourth Amendment search
and seizures.177 In practice, however, the Randolph holding
applies only in factually limited situations in which three
distinct events must occur: (1) a third party must properly give
consent to the search; (2) the defendant must be physically
present at the time of the search; and (3) the defendant must
expressly refuse to give consent to the search. While the first
event is not much of an issue because Randolph does not
change the third party’s authority to consent, the other two
events can only occur in limited circumstances. As a result,
these lower courts are finding that, despite the Supreme
Court’s response to this issue, Randolph simply does not apply
in many third-party consent cases. Courts consistently
distinguish Randolph in one of two ways: they either find that
the defendant did not expressly object to the search, or that the
defendant was not physically present at the time of the search.
1. Express Refusal Distinctions
One group of courts has distinguished Randolph on the
grounds that the defendant did not expressly object or refuse to
consent to the search. These courts have held that a
warrantless search conducted with the consent of a third party
is valid. The Supreme Court in Randolph did not elaborate on
the extent of the refusal of consent necessary other than to
state that it must be expressly given.178 In United States v.
175
See infra Part VI.A.1-2.
Moran, supra note 174, at 284-85. But see, e.g., United States v. Groves,
470 F.3d 311, 318-20 (7th Cir. 2006) (using Randolph as current precedent to address
the issues within the third-party consent doctrine).
177
See supra Parts III and IV.
178
Randolph, 547 U.S. at 120 (“We therefore hold that a warrantless search of
a shared dwelling for evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on the basis of consent
given to the police by another resident.”).
176
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McKerrell, the Tenth Circuit strictly interpreted this to mean
that implied refusal by a physically present primary party is
insufficient to trump a third party’s consent.179 In United States
v. Murphy, the Kansas District Court found that it did not have
to analyze the case under Randolph because the defendant
waived his reliance on this case.180 The court stated in dicta,
however, that if it were to analyze the case under Randolph, it
would find that the Supreme Court case was distinguishable
because there was not an unequivocal refusal of consent by the
defendant.181 In Murphy, when the agent entered the home, the
defendant stated, “You cannot go in there. It’s not my home,
but none gave you permission. It belongs to my mother.”182 The
court stated that this would not be a personal objection.183 In
United States v. Reed, the Northern District of Indiana also
differentiated between objecting to consent and declining to
consent.184 For example, when asked for consent to search his
house, the defendant in Reed told the police, “[T]hat’s not my
place, I can’t give you permission for that.”185 The court found
that the defendant did not expressly refuse to consent in the
manner that Randolph requires.186
Similarly, in United States v. Dominguez-Ramirez, the
Middle District of Florida held that “consent with qualification”
is not a refusal to consent.187 There, the defendant was arrested,
179
United States v. McKerrel, 491 F.3d 1221, 1227 (10th Cir. 2007).
United States v. Murphy, 437 F. Supp. 2d 1184, 1192 (D. Kan. 2006). The
Randolph decision came down after this case was briefed, but before the evidentiary
hearing. The defendant chose not to rely on this case because he believed he had no
right to relief under Randolph. Instead of arguing the lack of valid third-party consent,
he contended that no one consented to the search at all. Id. at 1189 n.4.
181
Id. at 1193.
182
Id. at 1192.
183
Id. at 1193.
184
United States v. Reed, No. 3:06-CR-75, 2006 WL 2252515, at *5 (N.D. Ind.
Aug. 3, 2006) (holding that a search was reasonable where the defendant’s co-occupant
gave consent while the defendant was in police custody and had earlier declined the
police officer’s request for his consent).
185
Id. The fact that the police believed and later confirmed that it was in fact
the defendant’s premises did not change the court’s ruling that the defendant’s
response was not an objection. Id. at *5.
186
Id. at *4-5.
187
United States v. Dominguez-Ramirez, No. 5:06-CR-6-OC-10, 2006 WL
1704461, at *9 (M.D. Fla. June 8, 2006); see LAFAVE, supra note 37, at 8, § 8.1
(explaining that a consent may be expressly or implicitly limited by terms such as time,
duration, area, or intensity, and police officers must take these limitations into
account); see also Model Code of Pre-Arraignment Procedure § SS 240.3 (1975)
(providing that a consent search “shall not exceed, in duration or physical scope, the
limits of the consent given”); Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir. 1977)
(“Nothing in Schneckloth suggests . . . that a consent which waives Fourth Amendment
180
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and he told agents during an interview that they could search
his residence but not until the morning because he did not
want them to disturb his sickly wife.188 The agents
subsequently went to the defendant’s house and asked the
defendant’s wife for permission to search the house then or, if
she would prefer, they would come back in the morning. She
told the police that it was fine for them to search then.189 The
defendant relied on Randolph to argue that by telling the
agents to wait until the morning he had made a refusal.190 The
court disagreed, ruling that this was merely “a time frame on
the consent” and not a refusal to consent.191 The DominguezRamirez court noted, however, that even if the defendant’s
refusal to consent to the search were valid, his absence from
the premises at the time of the refusal distinguishes the case.192
In sum, lower courts have been very strict about what
they consider “express refusal” in these situations. As a result,
Randolph is typically distinguished and third-party consent
searches—even where the primary party is present—have
seldom been found unreasonable.
2. Physically Present Distinctions
Another group of cases has distinguished Randolph on
the grounds that the defendant was not present at the time a
third party gave consent. This is a result of the Supreme Court
majority’s unwillingness to undermine the Matlock rule to the
extent that a person who is nearby but not actually part of the
conversation with the police officers is not physically present,
but is instead an “absent, nonconsenting person.”193 While
determination of consent is based on an objective standard,194
rights cannot be limited, qualified, or withdrawn”); United States v. Griffin, 530 F.2d
739, 744 (7th Cir. 1976) (finding that limitations placed on consent were valid, but
holding that the officers acted within those limitations); United States v. Miller, 491
F.2d 638, 650 (5th Cir. 1974) (finding that any limitations on the consent given were
withdrawn by the defendant’s later actions); United States v. Dichiarinte, 445 F.2d 126
(7th Cir. 1971) (stating that consent searches are reasonable only if they kept within
the bounds of the consent given).
188
Dominguez-Ramirez, 2006 WL 1704461, at *2.
189
Id. at *2-3.
190
Id. at *9.
191
Id.
192
Id. (stressing that Randolph had “left intact the rule that the consent of
only one co-tenant is sufficient so long as the objector is not present”).
193
Georgia v. Randolph, 547 U.S. 103, 121-22 (2006); see United States v.
Matlock, 415 U.S. 164, 170 (1974).
194
See supra Part II.B.
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YOU SAY YES, BUT CAN I SAY NO?
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the determination of “physically present” or “nearby but not
part of the colloquy” is not.195 Randolph did not define these
terms other than to say that one making an objection at the
door would be considered physical present.196 Yet the door
cannot be the only valid place to object, since a colloquy
regarding consent can easily take place elsewhere, such as the
front yard or backyard. Thus, despite the Court’s bright-line
rule, there is still room for interpretation over what is close
enough to be “at the door,” and what is required to be “part of
the colloquy.” Without further guidance, it is utterly subjective
whether a suspect is sufficiently close to the door to be entitled
to participate in the colloquy regarding consent. The police and,
ultimately, the prosecutor might perceive the defendant to be
at a far enough distance so as to be considered merely “nearby”
at best. The defendant, in contrast, could perceive his distance
at the time he objects to be close enough to be considered part
of the colloquy.
In United States v. Reed, the Northern District of
Indiana found that Randolph was distinguishable on the
ground that the defendant was not physically present at the
time of the search, even though the police knew he declined
consent earlier.197 Because Randolph did not discuss other
types of withheld consent, such as where the primary party
makes his objection to a search before the police arrive at the
home, the Court found no reason to apply the Randolph
holding.198 The court argued that Randolph does not require the
police to obtain affirmative consent from all known occupants
of a residence.199 In United States v. Davis, the defendant was
asleep in the house and did not object when the police knocked
on the door and shouted into the house; therefore, the court
found Randolph inapplicable because he was not physically
present at the door.200 In Davis, the court did not have to
195
Randolph, 547 U.S. at 121.
The closest the Court comes to explaining how these terms should be
defined is the majority’s distinction between the facts of Randolph and those of Matlock
and Rodriguez. See Randolph, 126 U.S. at 121.
197
United States v. Reed, No. 3:06-CR-75, 2006 WL 2252515, at *4-6 (N.D.
Ind. Aug. 3, 2006).
198
Id. at *5.
199
Id. at *6.
200
United States v. Davis, No. 1:06-CR-69, 2006 WL 2644987, at *2 (W.D.
Mich. Sept. 14, 2006); see also United States v. Crosbie, 2006 WL 1663667 at *1-2 (S.D.
Ala. June 9, 2006) (declining to extend Randolph’s “narrow holding” where defendant
claimed he did not have an opportunity to object after his wife ordered him out of the
home, and a subsequent search was conducted pursuant to the wife’s consent); Starks
196
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factually distinguish Randolph because the Supreme Court
specifically stated that a potentially objecting co-occupant does
not override the consent of a third party if the objecting cooccupant is nearby but not at the door and objecting.201
Thus, in addition to their strict construal of “express
refusal,” lower courts interpret Randolph’s definition of
“physically present” very narrowly as well. This is not
surprising, however, because under Randolph a third-party
consent search could be reasonable even where the primary
party is not very far from the search.
3. The Randolph Precedent Still Results in Some
Invalidation of Searches
Not all courts, however, have refused to find a thirdparty consent search unreasonable under Randolph. In United
States v. Hudspeth, the Eighth Circuit originally held that a
third party’s consent was invalid where the defendant
expressly objected to consent even though he was not present
at the time of the search.202 This would have expanded the
Randolph holding and would have been contrary to Reed,203 but
the court vacated its opinion after a rehearing en banc. In
Hudspeth, the police asked the defendant for consent to search
his home computer, which he refused to give.204 Subsequently,
he was arrested and taken to jail while the police went to the
defendant’s home and obtained consent to search from his
wife.205 Distinguishing the hypothetical situation discussed in
Randolph, in which a “potential objector” is not asked for his
consent,206 the court held that, because “[the defendant] was
invited to participate and expressly denied his consent to
search,”207 there was a disputed invitation that made the search
v. State, 846 N.E.2d 673, 677-78, 682 n.1 (Ind. Ct. App. 2006) (distinguishing Randolph
on the basis that, where police were informed the suspect was in the house and police
subsequently entered the house to find the suspect, the defendant was not physically
present at the time a third party consented).
201
Randolph, 547 U.S. at 121.
202
United States v. Hudspeth, 459 F.3d 922, 930-31 (8th Cir. 2006), vacated
2007 U.S. App. LEXIS 16854 (8th Cir. Jan. 4, 2007).
203
United States v. Reed, No. 3:06-CR-75, 2006 WL 2252515, at *10 (N.D. Ind.
Aug. 3, 2006).
204
Hudspeth, 459 F.3d at 925.
205
Id.
206
Randolph, 547 U.S. at 121-22.
207
Hudspeth, 459 F.3d at 931 (citing Randolph, 547 U.S. at 121).
2007]
YOU SAY YES, BUT CAN I SAY NO?
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unreasonable.208 A dissenting opinion argued that Randolph
should not apply because the defendant was not physically
present, and that to hold otherwise would mean that Randolph
overruled Matlock, which it expressly did not do.209
Relying on the original Hudspeth opinion (before it was
vacated), the Northern District of Illinois in United States v.
Henderson suppressed evidence that was the fruit of a thirdparty consent search.210 In Henderson, after the police entered
the defendant’s house, the defendant told them to get out, but
the police obtained consent to search the house from the
defendant’s wife.211 Under Randolph, because the defendant
was physically present when he objected to the search, a search
based on the subsequent third-party consent was
unreasonable.212 A Texas Court of Appeals, in Odom v. Texas,
also held that a third party’s prior consent was invalid when
the appellant, a guest at the third party’s home, was present at
the time of the search and expressly objected to it.213
B.
Public Policy Implications
Although courts distinguish Randolph on an objective,
factual basis, there are also subjective, public policy reasons
that make the Randolph holding undesirable. The public policy
implications of the Randolph rule include, ironically, the risk of
infringing a defendant’s constitutional rights as well as the risk
posed to domestic violence victims. Because there was such a
clear majority view among the courts before Randolph, it is not
surprising that various public policy considerations support the
pre-Randolph majority position, which deemed a search
reasonable and valid when a third party consents while a
physically
present
primary
party
refuses
consent.
Nevertheless, other public policy arguments favor adopting
what had been the minority view, as Randolph did, that such
searches should be deemed unreasonable and therefore invalid.
208
209
210
211
212
213
Id. (citing Randolph, 547 U.S. at 113).
Id. at 933 (Riley, J., concurring in part and dissenting in part).
United States v. Henderson, 2006 WL 3469538, at *2-3 (N.D. Ill. 2006).
Id. at *1.
Id. at *2.
Odom v. Texas, 200 S.W.3d 333, 335-37 (Tex. App. 2006).
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1. Infringing a Physically Present Defendant’s Rights
Due to Law Enforcement Objectives
Although, ideally, Randolph should serve to benefit
suspects, in reality a suspect’s Fourth Amendment rights are
more likely to be infringed in these types of third-party consent
situations. As the Randolph majority acknowledges, it may be
too difficult or impractical for the police to obtain consent from
a suspect in the vicinity of the premises being searched.214 The
Court insisted that the police do not have to take affirmative
steps to find a potentially objecting co-occupant if they already
have the consent of another co-occupant, as long as the police
do not deliberately remove the potential objector from the scene
to avoid an objection.215 Yet the police are not prohibited from
avoiding an objection by excluding the potential objector from
the dialogue in which the police seek consent. With respect to
what is considered an objecting co-occupant, the Court drew
the line at a co-occupant who is nearby but not part of the
colloquy with the police regarding consent.216 The co-occupant
who talks to one police officer on the driveway while his cooccupant gives consent to another police officer at the door is
not physically present, and a search would be reasonable as to
him. Thus, despite the “bright-line” rule,217 law enforcement
agents still have the flexibility not to engage the suspect in a
conversation in order to avoid an objection to a third party’s
consent. As a result, defendants in these situations could easily
be precluded from the opportunity to object to a search, which
would interfere with their expectation of privacy and Fourth
Amendment rights if the fruits of that search were admitted as
evidence against them at trial.
Articulating this point, the dissent in Hudspeth stated
that finding these types of searches unreasonable will
encourage the police to avoid obtaining the defendant’s
consent.218 By not asking a primary party for his consent, the
police will avoid the problem of his potential objection and thus
render the search reasonable under Matlock if they obtain
214
Georgia v. Randolph, 547 U.S. 103, 122 (2006).
Id.
216
Id. at 121.
217
Id. at 125 (Breyer, J., concurring).
218
United States v. Hudspeth, 459 F.3d 922, 933-34 (8th Cir. 2006) (Riley, J.,
concurring in part and dissenting in part).
215
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YOU SAY YES, BUT CAN I SAY NO?
451
consent from a co-occupant.219 Worried about this “troubling
situation,” one commentator lamented that “police could
circumvent the ‘ask the present primary party’ rule simply by
taking the primary party into custody and removing him from
the scene, as they did in Matlock.”220 In United States v.
DiModica, this situation confronted the Seventh Circuit.221 The
defendant’s wife called the police to report domestic abuse and
gave permission to search her home.222 When the police arrived
at the house, they arrested the defendant based on probable
cause of abuse.223 The defendant’s wife was not present at the
time of the search.224 The defendant analogized the facts of this
case to Randolph and argued that the police arrested him to
avoid his potential objection to the search.225 Nevertheless, the
court easily distinguished Randolph because here the police
never asked the defendant for his consent as they had in
Randolph, nor did the defendant voluntarily express his
objection to a search.226 DiModica, however, is an example of a
court relying on the subjectivity of the police’s judgment.
Because they already had the consent of a third party through
the defendant’s wife, the police decided to arrest the suspect
instead of attempting to obtain his consent to search.227
Alternatively, the police could have attempted to obtain a
search warrant before arriving at the suspect’s home.
Nevertheless, the court in DiModica ratified the police’s
decision to arrest the defendant by rejecting his Randolph
argument that the police deliberately avoided his potential
objection; thus the court found that the defendant’s Fourth
Amendment rights were not violated even though he was
present.228
219
Id.
Wright, supra note 40, at 1871 (citing United States v. Matlock, 415 U.S.
164, 170 (1974) (Douglas, J., dissenting)).
221
United States v. DiModica, 468 F.3d 495 (7th Cir. 2006).
222
Id. at 496-97.
223
Id. at 497.
224
Id.
225
Id. at 500. The majority in Randolph expressly noted that the police cannot
remove a potentially objecting co-occupant for the sake of avoiding a possible objection.
Georgia v. Randolph, 547 U.S. 103, 121 (2006).
226
DiModica, 468 F.3d at 500.
227
Because the defendant’s wife was not home with the defendant at the time,
she was not at risk of further harm, unlike other situations of domestic violence.
228
DiModica, 468 F.3d at 500.
220
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2. Protecting Defendants’ Rights at the Expense of
Possible Domestic Violence Victims
A second public policy reason that may make the
Randolph decision unappealing to lower courts is the fear that
domestic violence victims will not be protected because of the
new constitutional protections given to the defendant.229 There
is a concern about protecting a domestic violence victim in a
situation where the victim calls the police but the alleged
abuser does not allow the police to enter and stop the abuse.230
Although Randolph recognizes domestic violence as an
exigency that may justify a warrantless search despite a
primary party’s objection over a third party’s consent,231 the
new doctrine could cause the police to hesitate before entering
or searching a house when it is not clear that domestic violence
is occurring.
When it is not clear that domestic violence is taking
place, it will not be clear whether exigent circumstances are
present. In Randolph, Chief Justice Roberts found the
majority’s reliance on exigent circumstances insufficient to
justify an entry during a domestic dispute.232 Scholars have
different views about the efficacy of the exigent circumstances
exception to the warrant requirement under circumstances
indicating domestic violence. One Fourth Amendment scholar,
Wayne LaFave, supports the proposition that “‘where the
defendant has victimized the third party . . . the emergency
nature of the situation is such that the third-party consent
should validate a warrantless search despite defendant’s
objections.’”233 Other commentators complain that a court’s
decision on third-party consent searches where there is
disputed permission will depend on the court’s degree of
understanding of domestic violence.234 Roberts argued that it
229
See Randolph, 547 U.S. at 139-42 (Roberts, C.J., dissenting).
Id.
231
Id. at 118-19 (majority opinion) (stating that certain exigencies may justify
immediate action by the police).
232
Id. at 139-40 (Roberts, C.J., dissenting) (arguing that the majority’s rule
would prohibit the police from entering to assist during a domestic dispute if the
potential abuser who had prompted police involvement objected to the entry).
233
LAFAVE, supra note 37, at 161, § 8.3(d) (quoting Comment, 41 U. CHI. L.
REV. 121, 136 n.88 (1973)); see also United States v. Donlin, 982 F.2d 31 (1st Cir. 1992);
United States v. Hendrix, 595 F.2d 883 (D.C. Cir. 1979); People v. Sanders, 904 P.2d
1311 (Colo. 1995). But see Silva v. State, 344 So. 2d 559 (Fla. 1977).
234
E.g., Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for
Battered Women: An Analysis of State Statutes and Case Law, 21 HOFSTRA L. REV. 801,
230
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YOU SAY YES, BUT CAN I SAY NO?
453
would be better to “give effect to a consenting spouse’s
authority to permit entry into her house to avoid such
situations.”235 However, the difference between justifying the
search upon a domestic violence exigency and effectively
allowing the victimized spouse’s consent to override the other
spouse’s objection may prove to be insignificant in practice.236
One way or another, the police will find a way to protect
victims of domestic violence in these situations. Although
courts and the government should be wary of how it plays out,
it is unlikely that the result of Randolph will have much of an
effect on this issue.
3. Arguments Supporting Randolph: Preserving
Peace and Possessory Interests
Despite arguments against the adherence to Randolph,
there are also public policy considerations that support the
Randolph holding. One policy is the preservation of possessory
interests in the property.237 The Randolph majority based much
of its reasoning on the theory that no one occupant should have
a superior property right over the other.238 The Court in
Randolph also opined that it is not reasonable to recognize a
greater expectation of privacy for overnight houseguests than
for the co-occupant of a home.239 With these ideas in mind,
consider this hypothetical situation: Michael and Jennifer are
husband and wife and share a house together. Their friend
1156 (1993) (arguing that in Commonwealth v. Rexach, 20 Mass. App. Ct. 919 (1985),
the court “demonstrated an in depth understanding of the dynamics of domestic
violence” as it held that a warrantless search was valid on the wife’s consent because
“following the defendant into the bedroom” despite his objections “was justified by the
exigent circumstances exception to the warrant requirement”).
235
Randolph, 547 U.S. at 140.
236
Because Randolph still allows the police to enter over a resident’s objection
in the case of an emergency situation, Randolph does not have much of a practical
impact. Moran, supra note 174, at 292; see also Stephen Henderson, Justices Limit
Home Searches, PHILA. INQUIRER, March 23, 2006, at A01 (quoting a Burlington
County prosecutor, “I don’t think this [decision] will hamper police. . . . [They]
presently have the authority to enter when there is evidence of domestic violence
occurring or having occurred.”); Charles Lane, High Court Restricts Right of Officers to
Enter Homes, BATON ROUGE ADVOC., March 23, 2006, at A1 (quoting a chief criminal
deputy, “[A]s far as this Sheriff’s Office is concerned, our duty to protect life in an
emergency will always win out over the possible suppression of evidence.”).
237
Abrams, supra note 15, at 973.
238
Randolph, 547 U.S. at 114 (majority opinion); see also LAFAVE, supra note
37, at 160, § 8.3(d) (explaining that there are no superior property rights only where
occupants have equal use of place, and that this principle does not apply to children).
239
See supra Part V.
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Thomas, their houseguest, is sleeping on the living room sofa
for the night. The police knock on the door, and Michael,
Jennifer, and Thomas all answer the door. The police do not
have a warrant, but they ask all three occupants whether they
can enter and search the living room. Thomas, the houseguest,
refuses to give consent. Michael also refuses. Jennifer,
however, does give consent. The Court suggested that if it did
not rule the way it did, then this search could be valid as to
Michael, a resident of the house, but not valid as to Thomas,
the houseguest.240 The absurdity of recognizing a greater
expectation of privacy for a houseguest than for a co-occupant
undermines the protection of privacy rationale behind the
Fourth Amendment.
Another policy reason in favor of Randolph is that it
promotes peace and tranquility among joint occupants.241 By
invalidating searches in which there is a dispute between the
two occupants over whether to allow the police to enter, the
Court created a rule that minimizes interference in such
private disputes. There will be less chance of increasing the
flare-up between the two occupants by respecting the wishes of
the objector rather than the consenter. An objector may be
furious at a consenter for allowing the police to invade the
privacy of his home, whereas the consenter would typically be
only frustrated at most. Even so, the consenter is not hindered
from providing the police with evidence or information to assist
them in obtaining a search warrant.242 The Randolph holding
protects the sanctity of the home and continues to demonstrate
that our society favors searches pursuant to a warrant.243 It is
important to remember that the presumption is that
warrantless searches are unreasonable under the Fourth
Amendment.244 Thus, there are strong reasons to support and
adhere to the holding of Randolph.
240
Randolph, 547 U.S. at 113 (explaining that if that our society gives a
legitimate expectation of privacy to an overnight houseguest, “it presumably should
follow that an inhabitant of shared premises may claim at least as much, and it turns
out that the co-inhabitant naturally has an even stronger claim”).
241
Abrams, supra note 15, at 973.
242
See Coolidge v. New Hampshire, 403 U.S. 443, 487-89 (1971).
243
Timothy H. Everett, Developments in Connecticut Criminal Law: 2005, 80
CONN. B.J. 185, 189 (2006).
244
See supra Part II.
2007]
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YOU SAY YES, BUT CAN I SAY NO?
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Modifying Randolph by Defining “Physically Present”
and “Express Refusal”
The fact that many federal and state courts have
distinguished Randolph within a year after it was decided
indicates that there is a problem with its holding. Either
Randolph is objectively narrow and only applies in certain
factual situations, or the lower courts are subjectively reluctant
to apply Randolph because of public policy reasons. Instead of
providing uniformity on the issue, Randolph’s case-by-case
formula maintains the split in authority that existed before the
case was decided.245 There are two main issues on which lower
courts distinguish the Supreme Court’s decision: (1) what is an
express refusal of consent and (2) what is the meaning of being
“physically present” in a warrantless search scenario?246 The
Supreme Court did not fully clarify either of these terms in its
holding, which gives lower courts flexibility in defining them.
As some courts uphold these types of warrantless searches
while other courts invalidate them, our constitutional law is
inconsistent. The Court should address both questions to
ensure uniformity. By interpreting “physically present” broadly
and “express refusal” narrowly, it will promote consistency
among future court rulings.
1. “Physically Present” Primary Parties
a. Physical Presence Should Be Defined Broadly
The physical presence of a primary party at the time the
police seek, obtain, or apply a third party’s consent is a crucial
factor in protecting the primary party’s personal autonomy.
Requiring the consent of both present co-occupants strikes the
appropriate balance between preserving individual liberties
and permitting police expediency.247 This approach reaffirms
that Matlock third-party consent searches are only valid
against “absent, nonconsenting persons.”248 Such an
interpretation incorporates the Randolph doctrine to the extent
245
See Randolph, 547 U.S. at 142 (Roberts, C.J., dissenting).
See supra Part VI.A.
247
State v. Brunetti, 883 A.2d 1167, 1181 (Conn. 2005) (reasoning that while
an assumption-of-risk analysis is reasonable when applied against an absent cooccupant, applying it against a present objecting co-occupant would render as inferior
that co-occupant’s constitutional rights, given the “manifest preference for warrants”).
248
United States v. Matlock, 415 U.S. 164, 170 (1974). See supra Part III.A.
246
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that third-party consent searches are invalid with respect to a
present and objecting primary party.249 Simultaneously, this
definition requires a significant deviation from the Randolph
holding, which validates searches where the same person is
“nearby but not invited to take part in the threshold
colloquy.”250
Although much of the pre-Randolph commentary and
many cases did not interpret Matlock this way, Randolph
surprisingly made it clear that physically present primary
parties are protected under the Fourth Amendment. However,
Randolph limited the significance of this holding by not
extending this protection to potentially objecting parties who
are merely nearby.251 The Randolph majority went too far to
preserve the holding of Matlock by allowing the police to bypass
nearby suspects without asking for their consent. Expanding
the term “physically present” in this context would not
undercut Matlock, as the Randolph court feared it might,252
because searches are still valid against absent, nonconsenting
co-occupants. For example, although the Court interpreted
Matlock as drawing a distinction between a present and an
absent primary party, it declared that the defendant in Matlock
who was in a squad car near the house during the search was
absent. That reasoning blurs the line between a primary party
who is absent and one who is present.
The significance of deeming searches unreasonable as to
a physically present co-occupant who expressly refuses consent
is meaningless unless the definition of physical presence gives
that co-occupant an opportunity to express his refusal. Nearly
all defendants will be considered absent if the definition of
physical presence does not include those who are “nearby but
not part of the colloquy.”253 Yet the Court did not define
“nearby” and only recognized objections made at the door.254 As
a result, the government can bypass the consent requirement
by instructing the police to only ask for consent when the
suspect is in very close proximity to the scene and to avoid or
249
250
251
252
253
254
Randolph, 547 U.S. at 120.
Id. at 121.
Id.
Id.
Id.; see supra Parts V.C, VI.A.2.
Randolph, 547 U.S. at 121.
2007]
YOU SAY YES, BUT CAN I SAY NO?
457
ignore him when he is a short distance away.255 Physical
presence should be defined broadly so as not to exclude a
nearby defendant from Fourth Amendment protection and to
respect his possessory interests when he is close enough to
object to the search. This would bolster the Fourth Amendment
protection that has been eroded by recent Supreme Court
jurisprudence.256
One possible definition for this term is to deem an
occupant to be physically present if he is visible to the police or
if the police know that he is on or near the premises (for
example, sleeping or in the yard). This is a subjective approach,
and the test would be whether the police officer actually knows
or should know where the primary party is at the time of the
search. The Randolph majority was concerned that requiring
the police to take affirmative steps would be impractical or too
complicated.257 However, for their own protection, it does not
seem too onerous a burden for the police to at least attempt to
learn the location of their suspect before attempting to enter
his residence. This approach would prevent law enforcement
agents from purposely remaining ignorant of a suspect’s
location as a way of circumventing the requirement of asking
for his permission. Even where the police knock on the door
and a co-occupant third party answers and readily consents,
the police are still likely to first ask where the suspect is before
entering.258 Presumably, the officers would want to protect
themselves from a possible attack by the suspect.
Albeit similar, this approach is not as strict as the one
proposed by Elizabeth Wright, where the police must make a
reasonable attempt to obtain the consent of the primary party
regardless of the primary party’s location.259 The key difference
here is that the police need only seek a primary party’s consent
if he is visible to the police or if the police know or should know
that he is physically present on the premises. Wright’s
255
See supra Part VI.B.1. Alternatively, the police could find that exigencies
were present that justified removing him from the scene by arresting him, or that
justified conducting an immediate search of the premises without his consent. See
Randolph, 547 U.S. at 118-19 (stating that certain exigencies may justify immediate
action by the police). Whether the police would contrive such exigencies is beyond the
scope of this Note.
256
See Kloster, supra note 27, at 104-15.
257
Randolph, 547 U.S. at 121-22.
258
John C. Klotter & Jacqueline R. Kanovitz, CONSTITUTIONAL LAW FOR
POLICE 214 (3d ed. 1977) (“It is quite common for the officer to arrive at the residence
of the suspect and find that the suspect is not home.”).
259
Wright, supra note 40, at 1873-76.
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approach goes too far by requiring that the police “take
reasonable steps to obtain consent from the party at whom the
search is directed, whether or not that party is present at the
scene.”260 The intermediate approach better balances the
conflicting policy interests.
b. A Physically Present Primary Party Must
Have an Opportunity to Refuse
Once the primary party is considered physically present,
he should be given an opportunity to express his objection to
the search. This would require the police to at least indicate to
the primary party that they will be conducting a search, but
not necessarily to ask him for permission. This prevents the
problem discussed earlier where the police purposely remove
the potential objector from the conversation with his cooccupant regarding consent.261 Instead of automatically “losing
out,” as Randolph suggests, he should be invited to take part in
the colloquy. If the primary party is considered to have a
reasonable expectation of privacy, which would invoke Fourth
Amendment rights, and if he is physically present at the time
of the search, then the police should make an effort to invite
either consent or a refusal to the search.
For example, consider a situation in which the primary
party is restrained by the police in the front yard about fifteen
feet from the front door and does not know that the police are
obtaining consent to conduct a search from his co-occupant. In
that situation, the primary party does not have the opportunity
to express his refusal to the search because he may not know
such a search is about to occur.262 If the police are successful in
obtaining consent from the third party, they should notify the
primary party that they are about to conduct a search. If the
primary party knows that the police are obtaining his cooccupant’s consent to conduct a search and the primary party
expresses his refusal from the yard, that refusal must be
260
Wright, supra note 40, at 1874-75.
See supra Part VI.B.1.
262
See Note, supra note 22, at 2203 (arguing that “courts stand unanimous in
finding consent invalid when individuals are not fully aware that consent was being
sought”). But c.f. Donald v. State, 903 A.2d 315, 318-21 (Del. 2006) (finding that a
defendant who had an opportunity to object to a search after answering the door to
probation officers did not express any objection when the officers began the search).
261
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YOU SAY YES, BUT CAN I SAY NO?
459
respected even though he is “nearby but not [taking] part in the
threshold colloquy.”263
A case in which this approach could have been applied
was Starks v. State, from the Indiana Court of Appeals, in
which the police were informed that the suspect, Starks, was in
the basement of the house prior to entering the residence.264
Knowing that Starks was armed, the police entered and placed
him in handcuffs.265 The police then conducted a search based
upon a third party’s consent without first discussing it with
Starks, who was clearly present and not about to go
anywhere.266 The court held that, under Primus v. State,267 it
was unnecessary for the police to ask for his consent when they
already had the permission of a third party.268 While Randolph
discounted the idea of requiring the police to take affirmative
steps to find a potentially objecting co-occupant, this approach
would only require affirmative steps to be taken when the cooccupant had already been found. The issues involved with
locating the co-occupant, such as time consumption,
impracticalities, and lack of clarity about whom to locate,269 are
limited when the potentially objecting co-occupant is within
feet of the police and when it would take seconds, or minutes at
most, to indicate that they will be conducting a search.
The Randolph majority feared that “every cotenant case
would turn into a test about the adequacy of the police’s efforts
to consult with a potential objector.”270 The Court reasoned
that, since most suspects actually give their consent when
asked for it,271 the police should not be required to ask the
primary party for his consent. Yet for this precise reason,
assuming that supposition is true, requiring the police to tell a
physically present suspect of an impending search would not
interfere with the goals of law enforcement. If the primary
party is likely to give consent and actually does so, no thirdparty consent is needed at all. If the primary party does not
consent but is at least informed of the impending search and
263
See Randolph, 547 U.S. at 121.
Starks v. State, 846 N.E.2d 673, 677 (Ind. Ct. App. 2006).
265
Id. at 677-78.
266
Id. at 678.
267
813 N.E.2d 370, 374 (Ind. Ct. App. 2004).
268
Starks, 846 N.E.2d at 681-82, 682 n.1 (distinguishing Randolph in that
Starks was not physically present or did not expressly refuse to consent to the search).
269
Randolph, 547 U.S. at 121-22.
270
Id. at 122.
271
Id.
264
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does not object, the prosecutor has a stronger argument that
the search was reasonable, rather than having to rely on the
adequacy of the third-party consent alone. By adopting this
approach, law enforcement agents do risk receiving an express
refusal to a search request, but in the more common scenario
where the primary party consents or acquiesces, the facts
would likely support a finding that the search was reasonable
under Randolph.
This approach can be illustrated through the example of
when the primary party is asleep. If the police know that the
primary party is asleep while the police obtain a third party’s
consent, an attempt to wake him should be made either by the
police or his co-occupant. The Randolph majority considered
this scenario, but rejected it so as not to undercut Rodriguez
and also to draw the “fine line” for reasonableness of these
searches when the defendant is at the door and objecting.272
This result, however, is too harsh for the primary party. In
United States v. Davis, for example, the defendant, who was
asleep in his house, was considered “absent” because he did not
come to the door after the police knocked and shouted before
entering.273 Even though the defendant was presumably not too
far from the door, this was still considered an absence under
Randolph.274 This further illustrates that the difference
between being considered absent or present is fundamental to
the protection of a defendant’s Fourth Amendment rights.
What would happen if the primary party woke up in the
middle of the search and objected to it? Would the police stop
the search and not use any evidence they found against him? In
order to maintain our “widely held social expectations,”275
someone should tell the primary party that his property is
being searched by the police instead of having the suspect wake
up to find the police rummaging through his belongings. Such
actions run counter to a person’s expectation of privacy and
thus are inconsistent with a key concept of the Fourth
Amendment. If no one is available to wake a primary party
before the search, the police should then obtain a warrant.
272
Randolph, 547 U.S. at 121. See Illinois v. Rodriguez, 497 U.S. 177 (1990)
(holding that a search was reasonable where the defendant was asleep and the police
did not rouse him before entering and searching the premises). See supra Part III.B.
273
United States v. Davis, No. 1:06-CR-69, 2006 WL 2644987, at *2 (W.D.
Mich. Sept. 14, 2006).
274
See Randolph, 547 U.S. at 121. See supra note 196.
275
Randolph, 547 U.S. at 111.
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Without such a requirement, the police may not bother making
any attempt to obtain a sleeping primary party’s consent and
instead begin the search before he awakes and has an
opportunity to object. This would be analogous to removing the
primary party to avoid his possible objection, which Randolph
prohibits.276
Therefore, the Randolph rule should be modified to
provide a more expansive definition of “physically present” and
to require the police to at least notify a physically present
primary party that they will be conducting a search. This is
necessary even though it undercuts the Matlock rule. The
Matlock rule should apply to absent primary parties, and the
Randolph rule should apply to present primary parties. As a
result, there would be less confusion about which case applies
under a given set of circumstances.
2. “Express Refusal” Should Be Defined Narrowly
Once the primary party is considered physically present
and the police have told him about the search, the primary
party then has the opportunity to make an express refusal to
the search. The determination of whether there is express
refusal by the primary party should be based on the objective
reasonableness of a police officer, as in any consent case.277 It
should be the responsibility of the defendant to expressly object
or make a refusal to the search when he is given the
opportunity to do so. Under Randolph, the police cannot validly
conduct a warrantless search where at least one present cooccupant expressly refuses to consent to the search.278 The
Court should continue to have a strict requirement of the term
“express refusal” because this will strike an appropriate
balance with a more expansive definition of physically
present.279 While law enforcement agents should be required to
maximize the number of co-occupants included in the consent
colloquy, agents should not be required to refrain from
276
Id. at 121.
See supra notes 26-28 and accompanying text; see also Florida v. Jimeno,
500 U.S. 248, 251 (1991) (citing, inter alia, Rodriguez, 497 U.S. at 183-89 (1990))
(noting that the “standard for measuring the scope of a suspect’s consent under the
Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the
suspect?”).
278
Randolph, 547 U.S. at 120.
279
See supra Part VI.C.1.
277
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searching where one co-occupant expressly consents and
another does not expressly refuse. The Court should go a step
further, however, by defining the parameters of express
refusal. Although Randolph did hold that the refusal must be
unequivocal, courts have been interpreting this phrase
differently, with some courts applying Randolph and others
not.280 A more uniform definition of express refusal will make it
simpler to determine if the search was reasonable under the
circumstances.
For example, the term “express refusal” could require
that a primary party clearly indicate his unequivocal objection
to the search in the negative. This does not require one
particular way for a primary party to express refusal, as long
as it is reasonable for an officer to understand that an objection
was made. For example, a primary party does not need to say
“I refuse to consent to a search” in order for an express refusal
to be recognized. A simple “No” or “I don’t want you to search”
should be sufficient. Thus, the police would have the simple
task of determining whether the primary party’s statement,
whether unsolicited or upon request, unequivocally objects to
the search.
There is a clear difference, however, between objecting
to a search and declining to consent.281 Declining to consent
should not be sufficient to create a dispute over permission to
enter or search, and therefore it should not invalidate a thirdparty consent search. For example, silence in response to a
request for consent should not be considered an express
refusal. Nor should any statement that the police could
reasonably understand to be an abdication of authority over
the premises being searched.282 If the primary party says to the
officer “It’s not my home; you can’t go in there,” this would not
be an express refusal because the primary party has not
unequivocally stated his personal objection to the search.283
280
See supra Part VI.A.1.
See United States v. Reed, No. 3:06-CR-75, 2006 WL 2252515, at *5 (N.D.
Ind. Aug. 3, 2006).
282
See United States v. Sandoval-Espana, 459 F. Supp. 2d 121, 136 (D.R.I.
2006); see also United States v. Jones, 184 Fed. Appx. 943, 947-48 (11th Cir. 2006)
(holding that the defendant did not have standing to challenge the validity of a search
because he failed to show a subjective expectation of privacy where he stated that he
had no authority to give consent to search the residence, despite having personal
effects there).
283
See United States v. Murphy, 437 F. Supp. 2d 1184, 1192-93 (D. Kan.
2006); see also Reed, 2006 WL 2252515 at *5 (citing Randolph, 547 U.S. at 113)
(reasoning that if a visitor is at the door of a residence, his confidence about whether he
281
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Similarly, if the primary party answers “It’s not mine” in
response to a request for permission to search the vehicle he is
operating after obtaining the consent of a co-passenger, this
also would not be an express refusal.284 Instead of expressing
his objection, such a statement merely indicates to the police
that the primary party does not believe the police have
permission. On the other hand, “consent with qualification”285
should be respected if the primary party makes clear that he
refuses and if it is reasonable for the police officer to
understand the limitations on the consent.286
There are several reasons why the standard for express
refusal should be defined more narrowly. First, in these
situations, there would already be third-party consent, which
has been recognized as valid consent for years in Supreme
Court jurisprudence.287 The express refusal must be sufficiently
clear to the police to render the permission disputed, which
would negate the validity of the third party’s consent.288 Just as
a warrantless consent search will only be reasonable with
clearly expressed consent from the primary party,289 a
warrantless third-party consent search should only be
unreasonable if the primary party expressly refuses in the face
of a third party’s express consent. Second, as mentioned above,
most suspects when asked for consent are likely to give it.290
Thus, where one co-occupant expressly gives consent, there is a
rebuttable presumption that another co-occupant will also
consent if given the opportunity. If the primary party objects,
he should be required to rebut this presumption with a clear
showing that he, unlike his co-occupant, is not the typical
suspect who gives his consent when asked. Third, the search
being done without the primary party’s consent is only of
has permission to enter “would be unshaken if one occupant said ‘come in,’ and the
other said, ‘this isn’t my place’ ”).
284
See Sandoval-Espana, 459 F. Supp. 2d at 136.
285
See, e.g., United States v. Dominguez-Ramirez, No. 5:06-CR-6-OC-10, 2006
WL 1704461, at *2, *8 (M.D. Fla. June 8, 2006).
286
See supra Part IV.A.1.
287
See supra Part III.
288
See Randolph, 547 U.S. at 113-20; see also Fisher, supra note 74, at 204-05.
289
See, e.g., Johnson v. United States, 333 U.S. 10, 12-15 (1948) (finding that
a search violated the Fourth Amendment when the defendant merely acquiesced to an
officer’s demand to enter); see also Note, supra note 22, at 2203 (noting that courts
consistently find consent searches invalid where there is “some indication [that]
consent is not clearly given”).
290
See Georgia v. Randolph, 547 U.S. 103, 122 (2006).
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common areas that the co-occupants share.291 Therefore, the
primary party has already assumed the risk that his cooccupant will expose that area to the police in his absence,292
and he must clearly cancel that assumption when he is present.
Thus, there should continue to be a strict requirement of
the defendant to expressly object to a search when a third
party has consented to it. The refusal should be sufficiently
clear to the police such that a reasonable law enforcement
agent would understand that the defendant disputes the
consent offered by a co-occupant.
VII.
CONCLUSION
The United States Supreme Court changed the
warrantless third-party consent search doctrine in Georgia v.
Randolph.293 Previously, under United States v. Matlock,294
warrantless consent searches of the common area of a home
were deemed reasonable if a person with common authority
over the premises consented to the search.295 A majority of
federal and state courts had interpreted Matlock to mean that
third-party consent searches are reasonable even if the
defendant is physically present at the time of the search and
objects to the search.296 A minority of state courts had
interpreted Matlock to mean that a third party’s consent is not
reasonable against the defendant if the defendant is present at
the time of the search and does not consent to it. Under
Randolph, the Supreme Court adopted the minority view by
holding that third-party consent searches are unreasonable as
to the defendant if the defendant is physically present and
expressly refuses to give consent to the search.297 Despite the
new doctrine, which in theory expands Fourth Amendment
rights, the Randolph holding has not had a substantial impact
on invalidating third-party consent searches as unreasonable
in lower federal and state courts. Randolph’s narrow holding
allows lower courts to maintain the previously existing
majority view by distinguishing Randolph on the basis that a
291
292
293
294
295
296
297
See Randolph, 547 U.S. at 133-36 (Roberts, C.J., dissenting).
See supra Part III.A.
Randolph, 547 U.S. at 108.
415 U.S. 164 (1974).
Id. at 171.
See Randolph, 547 U.S. at 108 n.1; see also supra Part III.A.
Randolph, 547 U.S. at 108, 120.
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defendant was either not physically present at the time of the
search or did not expressly object to the search.298 To remedy
this continuing lack of uniformity, the Supreme Court must
modify the existing doctrine. The term “physically present”
should be defined more broadly so that more suspects have the
opportunity to object to the search, and consequently more
defendants’ Fourth Amendment rights are protected.299 The
term “express refusal” should be defined more narrowly so that
when the police obtain the consent of a third party, an
ambiguous refusal by the defendant does not prevent a search
from being reasonable.300 As a result, lower courts will be less
likely to distinguish Randolph when it is appropriate, and
conflicting public policy concerns—such as permitting police
expediency while preserving defendants’ Fourth Amendment
rights—will be adequately balanced.
Jason E. Zakai†
298
See supra Part VI.A.
See supra Part VI.C.1.
300
See supra Part VI.C.2.
†
H.B.A. International Relations, University of Delaware, 2005; J.D.
Candidate, Brooklyn Law School, 2008. The author thanks the editors and staff of the
Brooklyn Law Review for their assistance, especially Jennifer Williams and Ilana
Miller for their crucial edits, comments, and suggestions. The author also thanks his
family and friends for their continuous support throughout the process of writing this
Note and throughout law school.
299