Over the past twenty years, specialized trial courts with dockets comprised primarily or exclusively of business cases—commonly known as business courts—have been established in nineteen states across the United States.¹ In these courts, cases are not subject to the master calendar system. Rather, a single judge will hear any qualifying case from start to finish. Policymakers and legal scholars who study business courts have advanced three primary rationales in support of their creation. First, such courts are said to result in higher-quality decisions in individual cases and to generate more and better-reasoned decisions in the fields of corporate and commercial law. Second, such courts are said to enhance the administrative efficiency of a state court system. Finally, business courts are said to facilitate the diversion of economic resources from one jurisdiction to another as part of a broader process of competition between the states. This Essay analyzes each of these rationales—with a particular emphasis on the third—and then draws upon this analysis to offer a number of suggestions as to how future business courts should be designed.

Quality of Decision-Making

With respect to the first rationale—that business courts render higher-quality decisions in business cases—the idea is that a specialized judge who hears only business cases is in a better position to resolve such disputes quickly and correctly than a generalist judge who may be unfamiliar with business concepts. Although it is always difficult to determine whether one court renders “better” decisions than another court in particular cases, there is some empirical support for the notion that business courts render more satisfying decisions in business cases. The Association of Corporate Counsel, a trade group for in-house lawyers, has taken the position that the use of business courts results in an “improvement in the quality of dispositions” in business litigation. Surveys of attorneys in Massachusetts and Philadelphia who have practiced before those states’ business courts reveal high levels of satisfaction with the courts. Although it is true that surveys of attorneys in South Carolina evidenced only lukewarm support for that state’s business court, there is a fair amount of evidence to support the contention that these courts are at least capable of producing better decisions than generalist courts in complex business cases.²

Administrative Efficiency

There is, by contrast, little to no empirical support for the notion that the creation of a business court enhances the overall administrative efficiency of a particular court system. The only hard evidence in support of this claim lies in the oft-cited statistic that the creation of the New York Commercial Division led to a significant reduction in the average number of days it took to resolve a contract claim in New York.³ This lonely statistic aside, there is no published study suggesting that the court systems in any of the nineteen states that have established business courts to date were able to resolve business cases more efficiently after the creation of the business court. Nor is there any published study that provides statistical support for the claim that business courts lead to the more efficient resolution of nonbusiness cases. Although the lack of published data to date does not mean that business courts do not enhance administrative efficiency, it does mean that there is currently a mismatch between the confident assertions by business court advocates that these innovations enhance judicial efficiency and the lack of empirical data to support this contention. Until more and better data are made available, it is difficult—if not impossible—to determine the actual impact of a business court on the administrative efficiency of any particular court system.

Competition

The third rationale—which emphasizes the ability of business courts to enable the states that create them to compete more effectively for scarce economic resources—is typically advanced in one of three forms. First, the creation of a business court is said to attract out-of-state businesses to a state or, alternatively, to dissuade in-state businesses from moving elsewhere, thereby growing the state’s economy. Second, the creation of a business court is said to attract out-of-state corporations to incorporate, or to reincorporate, under the law of the state that creates it, thereby generating franchise fees for the state. Third, the creation of a business court is said to make it more likely that out-of-state companies will choose to litigate their disputes before that court, thereby generating fees for local lawyers. The common thread uniting each of these arguments is the notion that a business court is a product that serves to facilitate the diversion of economic resources away from other states to the state that creates the business court. As discussed below, each of these competition-based arguments is flawed in some way.

Attracting Businesses to the State

Although it is commonplace for state officials to argue that the creation of a business court will attract jobs and investment to a particular state, there is little reason to believe that this is so. Indeed, there are many more reasons to believe that a business court is unlikely to attract out-of-state businesses to a particular state. Decisions relating to business expansion are, for example, typically dominated by economic factors such as market size, product demand, distribution channels, and the availability of capital. The presence or absence of a specialized system of dispute resolution—even one tailored to the needs of business—is unlikely to make a great deal of difference in this decision-making process. Companies are, moreover, likely to discount the importance of business courts in deciding where to expand for any number of reasons. These include, but are not limited to, the contingent nature of litigation generally, the fact that most business disputes are resolved by means other than litigation, the restrictions on the type of cases that can be heard by the typical business court, the availability of federal court and arbitration as alternatives to state court adjudication, and the fact that out-of-state companies may make use of the business court as plaintiffs regardless of whether they are actually doing business in the state. Accordingly, the claim that the creation of a business court will encourage economic development by attracting out-of-state companies to expand into the jurisdiction is largely unpersuasive.

Attract Corporate Charters

The notion that the creation of business courts is likely to attract chartering business from out-of-state corporations is likewise unpersuasive. To the extent that a business court is seeking to enable a state to compete more effectively for corporate charters, it is competing with Delaware. Delaware’s success in attracting such charters is frequently attributed to certain unique attributes that attach to its Court of Chancery. This trial court hears corporate cases primarily or exclusively, hears all cases without a jury, publishes its opinion in online repositories like Lexis and Westlaw, and benefits from a state statute requiring that directors of corporations organized under that state’s law consent to being sued in that state. Modern business courts, significantly, lack each of these attributes.⁴ They hear cases across the entire panoply of corporate and commercial law. They have retained jury trials. It can be difficult in some states to search, or even to locate, business court decisions. And most states that have established business courts have declined to enact statutes requiring that directors of corporations organized under that state’s law consent to being sued in that state. If modern business courts are to compete successfully with Delaware for corporate chartering business, then state officials would be well advised to revamp their institutional structure so that they more closely resemble the Delaware Court of Chancery. Unless and until these basic design elements are changed, it is highly unlikely that any business court will succeed in attracting incorporation business away from Delaware.

Attract Litigation Business

With respect to the claim that business courts serve to attract legal business to a particular jurisdiction, there are examples of cases in which these courts have done precisely that. Most famously, the various corporate parties to the FirstUnion-Wachovia-SunTrust merger litigation agreed in 2001 that their dispute would be resolved by North Carolina Business Court rather than the courts of Georgia.⁵ The fact that litigation business was successfully diverted from Georgia to North Carolina in this particular case, however, does not necessarily mean that such diversion is likely to occur on a regular basis. In order for a business court in one state to divert litigation business away from another state, there must be (1) an out-of state party to the litigation, (2) multiple fora with personal jurisdiction over the defendant, (3) mutual agreement as to the forum or a successful race to the courthouse, (4) a lack of a business court in the other state, (5) a claim eligible to be heard by a business court, and (6) proper venue. Although this combination of factors is not unheard of, it is likely not the norm. Given the atypical character of such cases, it is open to question whether the size and scale of litigation business capable of being diverted from one state court to another as a result of a business court is significant.

Summarizing the Case for Business Courts

To sum up, the best case for establishing business court lies in their ability to render high quality decisions in business cases and in their (limited) ability to attract litigation business to a particular jurisdiction. Such courts are, however, extremely unlikely to attract regular business to a particular state and are likewise unlikely to prompt out-of-state firms to reincorporate in that state. As to the claim that business courts serve to enhance the overall efficiency of a particular court system, there exists to date scant statistical evidence to support this claim.

Lessons for Institutional Design

The foregoing analysis has a number of implications for state officials considering how best to design a business court. Several states, for example, have considered creating business courts that have a special focus on technology issues. Maryland has actually created such a court—the Business and Technology Case Management Program—and Michigan has seriously considered the idea. Advocates for these courts contend that they will attract not just any business, but a particular type of business—technology companies—to the state that creates them. The analysis set forth above, however, suggests that it is unlikely that the establishment of a business court with a focus on technology issues will have a meaningful impact on the location decisions of technology companies. There are, to be sure, other reasons why a state may choose to create a business and technology court. It may want to generate better decisions, for example, or to attract litigation business from technology companies. State officials tasked with setting up these courts will be better equipped to make sound decisions about how precisely they should be designed if they have a realistic sense for what ends these courts are likely to achieve.

The foregoing analysis also suggests that if states truly wish to attract litigation business, they should consider adopting additional institutional reforms beyond merely establishing a business court. States could, for example, adopt laws guaranteeing that forum selection clauses selecting the business court will be enforced. They could seek to hire “superstar” commercial arbitrators—that is, those individuals with a reputation for fairness and expertise in the field of commercial law—as their business court judges. They could even take steps to make jury trials optional in certain business disputes. All of these reforms would supplement the capacity of the business court to divert litigation to the jurisdiction that created it.

Acknowledgments:

John F. Coyle is and Assistant Professor of Law at University of North Carolina at Chapel Hill.

A version of this article will appear in the May 2012 issue of the William and Mary Law Review.

Copyright © 2012 William and Mary Law Review.

The economic loss rule (ELR) precludes bringing a tort action for economic loss, such as lost profits, when the parties’ expectations are governed by a contract.  The thesis of this Note is that building damage caused by defective construction materials should not be considered economic loss under the ELR as it currently is in many states.  Instead, this damage should be recognized as property damage, notwithstanding the overarching construction contract.

Unlike product manufacturing, which places the manufacturer in the best position to guarantee the performance of its products, building construction relies on the cumulative effort of builders and designers, along with all their consultants and subcontractors, to erect a building.  Because the contractor and architect—the only parties likely to contract directly with the building owner—do not have an analogous ability to evaluate the quality of each construction material before incorporating it into the project, the ELR should not place the entire risk of product failure on their shoulders.  It should instead recognize that the architect and contractor are merely providing a service to the building owner to design and assemble the building from marketable products.  When one of these products fails and damages the rest of the building, the construction contract should not serve as an umbrella to conceptually unify the entire construction project into a single product.  Rather, the ELR should recognize that the defective construction material was the sole cause of the building owner’s loss.  In other words, the fact that a prime contractor warrants the quality of materials used in a project should not preclude the building owner from bringing a tort claim directly against the remote construction material manufacturer.  The prime contractor’s warranty may be valuable to the building owner, but it has no bearing on the manufacturer’s underlying duty to ensure that his product does not pose an unreasonable risk of harm to the owner’s other property—the rest of the building.

I.
The Construction Contract

Building construction often relies on a plethora of interrelated contracts, subcontracts, and sub-subcontracts, especially in the context of commercial construction projects. Despite this multitude of contracts, a building owner typically negotiates and contracts with only two distinct parties: (1) the architect, who is responsible for designing the project, and (2) the prime contractor, who is responsible for building the proposed design according to the architect’s drawings and specifications. Each of these parties subsequently delegates responsibility for design and construction through a series of subcontracts. It is therefore very unlikely that the building owner will ever have the opportunity, or knowledge required, to negotiate the risk of product failure directly with a construction material manufacturer, supplier, or product representative because those parties are so far removed.

II.
The Economic Loss Rule

The ELR distinguishes personal injury and property damage, which are recoverable in tort, from mere economic loss, which is recoverable only under the terms of a contract. Therefore, a contract action, such as breach of warranty, is the only way a building owner can recover damages that are classified as economic losses.  The following discussion traces the development of the ELR and begins to show how it fails to appreciate the practical realities of procuring construction materials and assembling them into a building.

A.     A. MacPherson v. Buick Motor Co.

MacPherson v. Buick Motor Co. established basic principles of modern products liability.¹ The plaintiff, MacPherson, was ejected from his car and injured after one of the wheels collapsed. MacPherson sued Buick, the car’s manufacturer, for negligence arguing that Buick would have discovered the defect if it had adequately inspected the wheel. Because MacPherson purchased the car from an intermediate dealer, he lacked any contractual privity with Buick. The question therefore became whether a remote manufacturer owes downstream consumers any duty that would support such a tort claim.

The court held that because many products are dangerous if they are negligently made, a manufacturer has a duty to make its products carefully. Privity of contract does not limit this duty; “the source of the obligation [is] where it ought to be … in the law.”² Although the court touched on the relevance of this products liability principle to property damage, its holding was limited to personal injury.³

B.     Seely v. White Motor Co.

Almost fifty years after MacPherson, the Supreme Court of California reconciled products liability with the warranty provisions of the Uniform Commercial Code in Seely v. White Motor Co.⁴ Seely, a trucker, purchased his truck through an intermediate dealer. The sales contract contained an express warranty by the manufacturer, White Motor Company (White). One day, as Seely drove his truck, the brakes gave out and the truck rolled over. Unlike in MacPherson, Seely did not suffer any personal injuries, but the Seely court extended the scope of Judge Cardozo’s MacPherson analysis by equating property damage with personal injury. Seely has therefore been understood to hold that the law of warranty trumps tort in the absence of personal injury or property damage. In other words, economic losses are governed by contract, not tort.

C.     East River Steamship Corp. v. Transamerica Delaval Inc.

Whereas Seely represented the majority view by denying recovery in tort for economic losses, Santor v. A. & M. Karagheusian, Inc. outlined the minority position.⁵ Santor interpreted strict liability as an appropriate method of shifting the total cost of a defect from the consumer to the manufacturer. In East River Steamship Corp. v. Transamerica Delaval Inc., the Supreme Court of the United States gave a unifying voice to the ELR in favor of the majority view.⁶

The claims in East River arose from defective turbines on four chartered ships. Each of the ships’ turbines malfunctioned and forced the charterers not only to pay the cost of repairs but also to lose profits while the ships were being restored. The charterers sued the turbine manufacturer for negligence and strict liability, arguing that the defective design of the turbines led to their repair expenses and lost profits.

The Court, however, reasoned that the charterers should not be permitted to sidestep their deliberate allocation of risk by bringing a tort claim against the manufacturer of a component of the overall product. The Court’s interpretation of the ELR barred the tort claim for repair costs and lost profits by characterizing these losses as disappointed expectations in the product itself. When a product component damages the larger product, as opposed to other property, a plaintiff must ground his claim in contract law and look to the product’s warranty for recovery. The problem after East River became how to define the scope of “other property,” which would support a products liability action.

D.     Saratoga Fishing Co. v. J.M. Martinac & Co.

In Saratoga Fishing Co. v. J.M. Martinac & Co.,⁷ the Court confronted the flaws of East River by looking to the practical realities of a commercial transaction. In Saratoga, a shipbuilder, Martinac, built a fishing vessel and sold it to a fisherman. This fisherman used the ship for several years. During that time, the fisherman installed nets and additional fishing equipment on the ship. He subsequently sold the ship to a fishing company, Saratoga. After the sale, a defect in the ship’s hydraulic system, which Martinac had installed, caused the ship to catch fire and sink. Saratoga sued Martinac for the cost of the added fishing equipment that sank along with the ship.

On appeal, the Ninth Circuit applied a textbook East River analysis, classifying Saratoga’s entire ship as the “product” and finding that the fishing equipment was merely a component of that product. To reverse the Ninth Circuit, the Supreme Court critically examined East River and the limits of warranty law. Although the Court acknowledged that Saratoga could have negotiated a warranty with the fisherman to cover both the ship and the equipment, it would be unreasonable to require such a warranty for recovery. The fisherman was distinguishable from a manufacturer or a component supplier because he lacked the ability to “systematically control the manufactured product’s quality or … systematically allocate responsibility for [the equipment he added] in similar ways” as those used in the manufacturing process.⁸ The Court explicitly held that once a buyer purchases a product from the manufacturer or distributor, any subsequently added equipment ought to be considered “other property” under the East River analysis.⁹

The Saratoga Court’s reasoning appreciates the purchase of a product from the marketplace as a demarcation between a product’s manufacture and its subsequent use. In the context of complex commercial transactions, such as building construction, this approach provides a logical distinction between service contracts with the consumer and sales contracts with the manufacturer. Most importantly, it suggests a clear limit to the product-component analysis of East River. As the Supreme Court reasoned, a re-seller’s warranty for a product should not eliminate the possibility of tracing a tort action back to the original manufacturer.

III. The Economic Loss Rule in Construction Material Defect Cases

A.     Application of the Economic Loss Rule in Construction Cases

States have independently adopted their own versions of the ELR, often including some form of the East River product-component analysis. Because construction law is a specialized subset of contract law, state courts frequently apply a previously established ELR to construction claims without evaluating the unique aspects of construction contracts. As a result, the East River product-component analysis, rather than the Saratoga marketplace analysis, tends to provide the framework for evaluating the ELR in construction law claims.

When applying the product-component analysis, courts will likely classify an entire building, defined by the contractual scope of work, as the product. Construction materials are therefore often classified as components of a unified product: the building. When these construction materials fail and damage the rest of the building, such building damage will likely be classified as economic loss, which is barred from recovery in tort.

B.     The Problem with Applying the Economic Loss Rule to Construction Material Defect Cases

As discussed above, a single contract rarely governs an entire construction project. Instead, a chain of contracts dictates each participant’s role in the project. These contracts include both service contracts and sales contracts. The building owner is only a party to a portion of these contracts and is rarely a party to the sales contracts for the construction materials.

This contractual paradigm severely limits each participant’s ability to negotiate the risk of defective construction materials. Although contractors typically provide a warranty to guarantee the quality of the materials used in the project, the building owner usually lacks any meaningful capacity to negotiate risk directly with a manufacturer or supplier. Liability for harm caused by defective materials is therefore forced to trickle through the chain of contracts, tracing individual warranties. Thus the ELR tends to encumber courts with complex, wasteful litigation.

To understand why this contractual structure does not represent the warranty theories of Seely or East River, one must distinguish a negotiated allocation of risk from a construction contract’s use of warranty to transfer the cost of defects back to the source of the defect. Consider Seely’s purchase of the truck. Seely approached the truck market with unilateral authority to evaluate the risk posed by each truck he encountered. He had the freedom to balance this risk against the sale price and his desire to purchase the truck. By purchasing White’s truck, Seely accepted a risk that reflected his personal valuation of these factors. The contract therefore adequately accommodated the possibility that the truck would not meet Seely’s expectations. In essence, the contract allocated risk.

As described above, construction projects use a different process. The selection of each product relies on the assent of multiple parties within the project. The contractor or subcontractor who purchases a product relies on the architect’s specifications to select adequate construction materials. Likewise, the building owner relies on the contractor or subcontractor to negotiate the purchase of the materials and screen for defects once the materials are delivered to the site. No single party has unilateral authority to make decisions about what product to use; the process is cumulative.

This lack of unilateral authority precludes any individual member of the project from conducting and overall cost-benefit analysis of a single manufacturer’s product relative to alternative products. Instead, each member must rely on the overall structure of the construction contract to transfer the potential cost of defective products to someone else. The individual construction contracts within the chain, therefore, do not represent a negotiated allocation of risk as envisioned by Seely or East River. Indeed, they merely establish a framework to transfer the cost of defects when a building owner triggers the warranty provisions.

This cost-transference role of construction contracts shows that the mere presence of a warranty should not represent the kind of deliberate contemplation and negotiation of risk that Seely or East River deemed appropriate to govern a purchaser’s expectations in a product. When warranty merely provides a structure of cost transference, contract law should not be considered superior to a legal allocation of risk in tort.

IV.
Proposed Solution

This Note criticizes the East River product-component analysis on the grounds that it relies too heavily on a desire to provide a bright-line separation of tort from contract.¹⁰ were allowed to progress too far, contract law would drown in a sea of tort.”).] This framework leaves little flexibility for complex agreements, such as construction contracts, that mix service contracts with sales contracts. Courts should distinguish the services in a construction contract from the sales contracts for construction materials. As described above, Saratoga provides a useful framework for this distinction. It appreciates the ultimate purchase of a product from the market as a static limit on the conceptual expansion of that product. Using the Saratoga analysis, courts should classify individual construction materials, rather than entire construction projects, as the products governed by the ELR.

Under this theory, an owner would be permitted to bring a tort action for the damage that a defective construction material caused to the building, regardless of the contractual fortuity surrounding the initial purchase of that material. The ELR would still apply to true economic losses, such as defective design or the harm an individual material caused to itself, because these are risks that are adequately allocated and governed by construction contracts.

Conclusion

Construction material defect claims show that the East River product-component analysis is not justified by the mere presence of an overarching contract or warranty. Courts should reevaluate this analysis to accommodate the practical application of warranty in complex contract structures, particularly in construction contracts. Saratoga has already established a useful framework to begin this reevaluation because it distinguishes between the strengths of contract and tort while appreciating the practical realities of warranty law in complex contractual relationships. Looking to Saratoga, courts should begin classifying building damage as “other property” when it is caused by defective construction materials.

Acknowledgements:

J. Brandon Sieg, J.D. Candidate 2012 William & Mary School of Law; B.S. 2005, Georgia Institute of Technology. Thank you Professor Peter A. Alces, Randy Wintory, and Pat O’Leary for your encouragement in the early stages of this Note.

A version of this article appeared in the October 2011 issue of the William and Mary Law Review: http://wmlawreview.org/files/Sieg.pdf.

Copyright © 2012 William and Mary Law Review.

Agencies are commonly assumed to have a straightforward goal when they punish – agencies penalize to induce compliance with their rules.  Penalties aim to curb violations and prevent their reoccurrence.  In the language of the criminal law, agencies are seen as consequentialists.  Penalties seek to achieve positive social outcomes.  For example, penalties might deter misconduct by raising the expected cost of violations above the cost of compliance, or might attempt to reinforce norms of compliance through punishment.

Criminal law, of course, recognizes a second primary aim of punishment: retribution.  The goal of retributivism is punishment itself – wrongdoers are punished because they deserve it, not to achieve some broader social end.  As a general matter, though, scholars have assumed that agencies are not trying to achieve retributive ends through their punishment schemes.¹ There are good reasons for this assumption.  Agencies generally disavow retribution as a goal of administrative enforcement and claim to only seek consequentialist results.

There is reason to be skeptical of this rejection of retribution.  A number of recent experimental studies have looked at punishment decisions to try to determine whether people primarily care about deterrence, retribution, or something else.  When asked to impose punishment, test subjects tend to focus on facts that are relevant from a retributive framework rather than a consequentialist perspective. These results hold even though test subjects identified deterrence as an important reason for punishment.  In short, people talk like consequentialists but act like retributivists.

Testing the Deterrence Claim

How can we tell whether agencies care about deterrence or retribution?  These different theories require punishers to emphasize different facets of the violation.  For example, theories of deterrence focus on the expected cost of the violation.  Penalties are set such that the expected value of the fine ensures that violators either bear the costs they impose or are deprived of any gains from misconduct.  As a result, penalties should be largely shaped by gain, harm or risk of harm, and the probability the penalty will be imposed.

Very different concerns shape retributive penalties.  Unlike the forward-looking approach of deterrence, retribution is backward-looking, focusing on the violator and his conduct.  Punishment is imposed because a wrongdoer deserves it, not to achieve some broader external goal.  For instance, while the probability of detection is a central concern for theories of deterrence, detection probability is irrelevant to retribution. Desert-oriented punishment gives no reason to incorporate the likelihood of a punishment into the calculation of its size.  In contrast to theories of deterrence, the mental state of the wrongdoer with respect to the wrongful conduct dominates the field for retributivists.  A more culpable mens rea increases the wrongfulness of the act and, as a result, the amount of punishment that is deserved.  Individuals that knowingly cause harm deserve greater punishment than those inflicting harm merely recklessly.

This Article looks at the civil penalty systems of four agencies with missions spanning the federal administrative state: the Mine Safety Health Administration (MSHA); the Office of Foreign Assets Control; the Federal Communications Commission; and the Nuclear Regulatory Commission (NRC).  It examines the factors that play a role in these agencies’ penalty schemes and attempts to classify them according to the theory of punishment – deterrence or retribution – that they primarily serve. After analyzing both the theory behind the aforementioned punishment concerns and each agency’s practice, the Article concludes that, for each of these agencies, retribution, not consequentialism, provides the best explanation of their civil penalty policies. Consistent with a retributivist approach, all of the agencies emphasize harm and the risk of harm, place culpability at the center of the penalty process, and exclude enforcement probability when calculating penalties.Similarly, gain is largely irrelevant to the penalty determination for all four agencies.  All other things being equal, extremely lucrative and difficult-to-detect rule violations are punished no more severely than those where compliance with the rule is cheap and violations are always punished.

In selecting these points of emphasis in their punishment decisions, agencies look like the rest of us.  Numerous experimental studies have demonstrated that individuals place little or no importance on the probability that the defendant’s conduct will be detected and punished.² Study participants do not adjust penalty amounts based on the probability of the misconduct being detected. These experimental results have also repeatedly demonstrated that the mental state behind a violation plays a key role in punishment determinations.  Additionally, harm matters for the public at large. Experimental studies find that when asked to punish, test subjects are strongly motivated by the outcome of the misconduct.  Behavior that causes harm is punished more severely than conduct that does not, and punishment severity increases as the magnitude of the harm increases.

Agency Retribution: A Reason for Concern?

Does it matter if agencies (like rest of us) talk about deterrence but engage in retribution? I think it does. As an initial matter, agency retribution raises questions of legitimacy.  Legitimate retribution requires transparency. By its very nature, in order to make retributive punishment legitimate, it must communicate condemnation.  As a result, retributive punishment has to be labeled as such.  Because penalties are not received as punishment when they are cloaked in the language of deterrence, hidden retribution does not communicate the appropriate message.

There is a second significant problem with agency retribution.  Agencies might not be very good at it.  We often assume that agencies are experts in their area of enforcement.  The NRC knows a great deal about nuclear power plants, so scholars and the courts generally assume that the NRC also knows what types of penalties are appropriate for which violations of nuclear safety regulations. If, in fact, agencies do primarily impose penalties for purposes of retribution, this assumption is dubious.  Agencies are unlikely to be able to claim any particular expertise in the allocation of desert-based punishment.  Compare agencies to the two natural alternatives: civil juries and district judges. Juries are well placed to mete out retributive justice.  If the goal of punishment is to reflect community desires, lay jurors have a far better claim of expertise on that subject than administrative agencies.  Similarly, federal district judges routinely impose retributive penalties in the course of criminal sentencing.  Both of these institutional actors seem more likely to impose accurate retribution than agencies.

In the end, perhaps the best argument for agency retribution is norm reinforcement.  An important body of criminal law scholarship argues that retribution not only can serve utilitarian ends, but is in fact the best way to do so.³ Retributive punishment can reinforce norms of compliance by punishing only those who truly deserve it.  In this sense, retribution may be better able to achieve compliance than classic deterrence theories.

In the administrative context, though, using desert to reinforce norms faces serious implementation problems.  The arguments that justify desert as a utilitarian approach in criminal law are much weaker when applied to administrative civil penalties.  Two important characteristics of the criminal law are largely absent in the administrative context – norms are weaker and the goals of punishment are less transparent.  As an initial matter, arguments about the consequentialist value of desert generally assume a preexisting set of norms.  These norms classify conduct as either acceptable or unacceptable regardless of the existence of punishment.  Criminal punishment can then respond to these preexisting norms in several important ways.  By focusing criminal punishment on conduct that already violated these norms, law enforcement can leverage the preexisting stigmatizing effect of norm violation to more cheaply obtain compliance,  and authorities can reinforce these norms by serving as the legitimate institutions that punish norm violation. Criminal law can also extend the boundaries of these norms by establishing its legitimacy in situations in which norms are clear. By gaining a reputation for fairness in the easy cases through reinforcing preexisting norms, the criminal law can set norms in the borderline cases.

If administrative civil penalties are aimed at norm reinforcement, the task is far more difficult because the norms do not necessarily exist prior to agency action.  The problem is clearest in the context of safety regulatory agencies.  Both MSHA and the NRC regulate highly dangerous conduct by drawing lines based both on the riskiness of the conduct and the cost of further safety measures.  The line dividing acceptable behavior (conduct that is sufficiently safe given the cost of additional preventative measure) and unacceptable conduct (behavior in which additional safety measures should be mandated given their cost) is hard to draw and is, in many ways, inherently arbitrary.  Entities that are regulated by these agencies learn the acceptability of conduct by looking at the rules themselves rather than drawing on a preexisting body of societal norms.  Agencies are thus forced to take on the difficult task of norm setting rather than the comparatively easier task of norm reinforcement.

Is Retribution Inevitable?

The presence of retribution in agency punishment provides an important data point on the plausibility of placing deterrence at the center of any punishment scheme.  Administrative agencies are perhaps better situated than any other actor to impose penalties in a manner consistent with deterrence theories.  Deterrence-based systems of punishment have struggled to achieve traction for a variety of reasons, but a key component is the real-world difficulties of the approach. Traditional deterrence theories make strong assumptions about how both enforcers and violators behave, assumptions that are frequently not true in practice.  For instance, deterrence theory assumes that the decisions about the level of punishment and the probability of detection are decided jointly and simultaneously.  In traditional criminal enforcement, law enforcement sets the probability of detection for violations, and a sentencing judge sets the level of punishment.  Administrative agencies are different.  Because of the blend between executive, legislative, and judicial roles in the administrative context, agencies oversee their inspection and enforcement functions (providing control over the probability of detection), issue rules establishing systems of penalties, and decide penalties in individual cases (providing control over the eventual punishment).  Because agencies can control all aspects of enforcement, they have a much greater opportunity to establish a deterrence-based system if they so choose.

Similarly, the information problems in administrative enforcement are far smaller.  In the traditional criminal context, the assumption of perfect information by defendants and enforcers is a dubious one.  Violators are unlikely to be aware of the situations under which fines might be imposed and what those fines are.   In contrast, in the civil regulatory environment, regulated entities not only have counsel, they are repeat players in the regulation game.  They have the opportunity to observe the rules as they develop.

Of course, an argument that administrative agencies are more able to implement a deterrence-based approach to punishment than other enforcement entities does not demonstrate that it is possible.  Even with the advantages agencies have over traditional law enforcement entities, punishment based on theories of deterrence might be out of reach.  If that is true, though, we should be skeptical of any system of punishment which claims to be designed to achieve deterrence rather than retribution.

Acknowledgements:

Max Minzner is an Associate Professor at University of New Mexico School of Law.

A version of this article appeared in the February 2012 issue of the William and Mary Law Review: Max Minzner, Why Agencies Publish, 53 WM. & MARY L. REV. 853 (2012).

Copyright © 2012 William and Mary Law Review.

Here we build upon this research by interviewing the most active and nationally prominent disability rights attorneys.  These interviews present a snapshot and help tell the story of disability cause lawyers’ activities.  We use these accounts to begin situating disability cause lawyers within the emerging literature on law and social movements. In both tactics and strategy, disability cause lawyers operate similarly to lawyers for other causes. Yet, given the unique political and historical context of the disability rights movement, some important differences emerge that enlarge the understanding of what it means to be a cause lawyer. Finally, these lawyers’ accounts force a reconsideration of academic critiques of the efficacy and transformative potential of the ADA by demonstrating the ways that disability cause lawyers have effectively used the statute to achieve social integration in the shadow of the Supreme Court’s restrictive jurisprudence.

Lawyer Interviews and Methodology

Consistent with our prior research, we focused on lawyers who primarily engage in litigation on behalf of people with disabilities, as opposed to lawyers whose main efforts are on other types of advocacy. Accordingly, we started with the evolving Disability Rights Bar Association (DRBA).² The DRBA originated with “a group of disability counsel, law professors, legal nonprofits and advocacy groups who share a commitment to effective legal representation of individuals with disabilities.”³ It describes itself as an online community of lawyers “who specialize in disability civil rights law” and facilitate the pursuit of stronger cases through information and strategy exchange, mentorship, and coordination efforts.⁴

We requested and received permission to contact members of the Executive Committee to see if they would interview for this project, but excluded several members of the Executive Committee who were not actively engaged in litigation. Using convenience sampling, we conducted semi-structured interviews of Executive Committee members in selected cities. We also interviewed several additional lawyers who were repeatedly recommended by the lawyers we first interviewed. This ultimately led to the interview of thirteen lawyers. Twelve were done in face-to-face interviews, and one was done via videoconferencing using the Internet-based program Skype. We asked questions about the following: the lawyers’ respective backgrounds; their current office and organization; the economic model on which such entities were based; the nature of the cases typically brought; their motivations for bringing cases; their views on and involvement with ADA employment litigation; what goals they sought subsequent to litigation and how they hoped to achieve those goals; their views on constitutional disability litigation and the Supreme Court; their views on the role of litigation in the disability movement; the use of the press and other media in their work; and finally, their connections with other disability cause lawyers and lawyers for other social movements.

Our interviewing methodology yielded access to lawyers in private law firms, lawyers affiliated with public interest organizations, and lawyers connected to different disability communities (including the Deaf, visually impaired, those with mental disabilities and psycho-social disabilities, and the mobility impaired), with some geographic diversity. Still, as an initial survey, the cohort we interviewed lacked several representative factors.⁵

Disability Cause Lawyers as Cause Lawyers

The classic archetype of cause lawyering remains the heroic struggles of the Legal Defense Fund against American apartheid culminating in Brown v. Board of Education,⁶ and depicts lawyers as the central actors who conceived and led the fight against segregation. This iconic view has been challenged on the ground that cause lawyers were overly optimistic for believing constitutional litigation would remedy their movement’s plight and furthermore were elitists who controlled and papered over schisms within their constituencies while striving to present their cases before the Supreme Court. More recent iterations of cause lawyering take into account the activities of attorneys acting, respectively, on behalf of politically conservative groups and gays and lesbians seeking equality. What emerges in these instances is a more complex dynamic that acknowledges the traditional role lawyers and litigation play while at the same time assessing the prospects for winning political victories through courtroom defeats. Modern social movement lawyers are also more successful in lobbying legislatures as an effective and nonlitigious means of serving their communities, while viewing advocacy as a multidimensional process.

In discussing their successes and failures, disability cause lawyers bear little resemblance to “single-minded and politically naive rights crusaders” who succumb to a myth of rights and a simplistic view of the interplay between litigation and social change.⁷ Rather, these lawyers closely dovetail with advocates for political conservatives and gay and lesbian groups who view litigation as one form of a larger mobilization strategy, engage in multiple forms of advocacy, and have real, sustained connections to the communities they serve.  In addition, disability cause lawyers resemble their movement advocate peers in that their work generates radiating effects on the targets of their litigation as well as potential allies and the public, mobilizes aligned constituencies within the movement, and generates media coverage with an eye toward raising public awareness and changing consciousness.   And like other groups, disability cause lawyers are deft in securing new rights and favorable interpretations of existing rights through legislative and regulatory processes.

The disability cause lawyer interviews also highlight distinctions from other social movement advocates that question and expand existing understandings of cause lawyers. If we consider Brown v. Board of Education as characterizing a “first wave” of cause lawyering, it presents an instance of a social movement in conflict with an oppressive governmental structure, with the goal of toppling formally instantiated inequality. Lawyers advancing gay and lesbian equality, as well as conservative causes—a “second wave” of cause lawyering—find themselves in consistent and repeated value clashes, popularly thought of as culture wars. For example, advocates for marriage equality consistently find themselves in conflict with advocates for socially conservative groups. Similarly, the pro-life and pro-choice movements are familiar adversaries, finding themselves in opposition against each other in multiple forums.

Post-ADA disability cause lawyers, however, find themselves in a different historical and political context. Unlike other groups, they began with an omnibus civil rights statute enforceable with a private right of action. Moreover, there is no entrenched, large, repetitive antagonist against which disability rights advocates consistently battle. Rather, their task involves educating—and litigating against when necessary—a broad range of employers, businesses, and public entities. Animus is not typically an issue, but bias, stigma, and concerns about cost are constant ideological adversaries.

Despite pursuing multilayered forms of advocacy, lawyers for political conservatives and gay and lesbian groups have focused to some extent on reaching the Supreme Court. In contrast, with less centralization and a better legislative starting place, disability cause lawyers are exceptional for the extent to which they eschew the Court. As one lawyer bluntly put it, “[I]f you don’t need the Supreme Court, don’t use it.” When these lawyers litigate, they are primarily interested in winning through settlement or at the district court level. This victory can then be leveraged to transform other industry actors, ultimately creating cultural changes in the entities they target. When polled about why they bring specific cases, the lawyers were uniformly uninterested in using the courts to dramatically change the landscape of disability law. Rather, the most common answer was some variation of litigating to “make a point.” These lawyers were most interested in bringing cases that changed not only the behavior of the given defendant in the case, but also that of other similarly situated defendants who were not parties to the lawsuit. As one lawyer stated, “We want to know that the work that we put into it—if we’re successful—is going to change society in a fundamental way, and remove barriers to not just the main plaintiff, but to an entire class of people with disabilities.”  Many disability cause lawyers thus avoid employment cases for the express reason that victories in that field, while important, will redound only to individuals seeking individual remedies and will not benefit the greater community of persons with disabilities. Moreover, our research revealed some instances where disability cause lawyers operate more like corporate lawyers in that they respond to the advocacy goals of their highly organized and well-resourced clients. Sometimes this requires litigation, but in other instances the legislature and administrative state are the preferred forums. Although scholars of other social justice groups have noted that lawyers operate in lawmaking arenas outside the courts, disability cause lawyers show particular deftness and comfort in securing new rights and favorable interpretations of existing rights through legislative and regulatory processes.

Disability Cause Lawyers and Disability Law

This research into the strategic motivations of modern disability cause lawyers also yields new insight into how American disability law functions in practice, and thereby both confirms and challenges existing scholarship. Commentators have argued normatively for the ADA’s progressive application and rebuked the Supreme Court’s narrow gatekeeping definition of disability.  Their assessments likewise have critiqued the ADA’s implementation and dourly assessed its efficacy as a civil rights statute. Despite the Court’s parsimonious ADA jurisprudence, the disability cause lawyer interviews revealed a strikingly different picture in practice. The lawyers generally disagreed with the Supreme Court’s ADA decisions. Indeed, many contributed to the ADA Amendments Act of 2008 (ADAAA) that eventually revised those rulings. Yet, the Court’s judgments did not impact their daily work. Simply put, the disability cause lawyers persisted in bringing public services and accommodations cases on behalf of people who met even restrictive definitions of disability and continued to secure meaningful changes in defendants’ programs and businesses.

In a similar vein, scholars have asserted that Supreme Court decisions have undermined ADA enforcement by mooting civil rights attorney fees.⁸ The disability cause lawyers we interviewed acknowledged that these rulings negatively affected their work, but also explained how they brought cases in states with generous attorney fees and intentionally tailored claims to negate the brunt of the Court’s decisions. Moreover, the lawyers were not inclined to push the limits of class action procedures to bring together diverse categories of people with disabilities, as commentators have championed. Rather, the disability cause lawyers used the class action device when it was expedient to achieve results on a disability-by-disability basis. Thus, even as the ADA and other civil rights statutes fared poorly in the Supreme Court and the resulting decisions were identified by academics as preventing societal transformation, disability cause lawyers achieved significant progress for their clients. As such, the disability cause lawyers incrementally manifest part of the movement’s long-held desire of social integration—the “right to live in the world.”⁹ Until now, this story has been overlooked amidst the academic assault on the Court’s ADA decisions.

Acknowledgements:

Michael E. Waterstone is the Howard Ziemann Fellow and Professor of Law, Associate Dean of Research and Academic Centers, Loyola Law School Los Angeles.

Michael Ashley Stein is the Cabell Research Professor, William & Mary School of Law, Executive Director, Harvard Law School Project on Disability, and Visiting Professor, Harvard Law School.

David B. Wilkins is the Lester Kissell Professor, Vice Dean for Global Initiatives on the Legal Profession and Director of the Program on the Legal Profession, Harvard Law School.

A version of this article appeared in the March 2012 issue of the William and Mary Law Review: Michael E. Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyers, 53 WM. L. REV. 1287 (2012).

Copyright © 2012 William and Mary Law Review.

Determining the First Amendment rights of public employees represents one facet of a larger jurisprudential difficulty created by the application of a sovereign-oriented Constitution to government instrumentalities that regularly operate through nonsovereign means. The familiar yet vexing question is how the customary panoply of speech protections should be adapted to the employment context, in which public institutions enlist citizens to pursue strategic operational objectives.

During the middle of the twentieth century, the U.S. Supreme Court expressly abandoned its former position that because citizens lack any entitlement to public employment, they also lack grounds for challenging employment conditions as unconstitutional. The intervening years have seen the Court struggling to balance the importance of employer efficiency against the individual and public benefits of free expression.¹

The Court, however, has never fully confronted the implications of its reversal of course. In declaring that citizens retain First Amendment rights against their government employers, the Court established a conceptual baseline of parity between employees and nonemployees. In order to overcome the presumption of parity and impose a restriction on public employees that would be unlawful if applied to other citizens, the government may not rest on the mere existence of the employment relationship. Rather, departing from parity requires a meaningful reason beyond the employment relationship itself for viewing public officials as situated differently than their peers who do not work for the government.

II.

Parity-based thinking is not entirely foreign to the existing jurisprudence of employee speech. Speech made in discharge of an employee’s official responsibilities currently receives no constitutional protection from employer control.² The underlying notion is that if the speaker were not employed by the government, and if he were not tasked with certain communications as part of his official duties, his expressions would not have come into existence in the first place.

That causal origination overcomes the presumption of parity, authorizing the government to treat the speaker differently than a nonemployee. A similar analysis would apply to a public employee’s rude or vulgar speech to customers. Though citizens have the right to speak coarsely in conducting their private lives, an employee’s professional interactions with patrons are derivative of and unique to the employment context. Government employers may legitimately exert control over the shape of those exchanges without violating the norm of parity. The converse is that when employees “make public statements outside the course of performing their official duties,” the prospect of First Amendment protection arises because “that is the kind of activity engaged in by citizens who do not work for the government.”³

III.

In contrast to the rules regarding speech in the discharge of official duties, some critical elements of employee-speech doctrine cannot be squared with the parity norm.

For starters, the Supreme Court has crafted a threshold inquiry that generally forecloses the possibility of constitutional protection unless an employee’s speech bears on a matter of public concern.⁴ Yet citizens who do not work for the government commonly speak with full protection on private matters that have no plausible claim to public-concern status. There is no legitimate basis for differential treatment of those citizens relative to their peers who work for the government. If private-concern speech is worthy of constitutional solicitude in the ordinary course, so, too, should it be deemed valuable when the speaker happens to be a government employee.

The modern doctrine’s central balancing test, which focuses on the competing values of unfettered expression and governmental efficiency, is equally problematic when viewed through the lens of parity. Within the universe of the First Amendment, listener disapproval seldom provides a valid basis for restricting speech. This principle extends to speech that is uncivil, upsetting, and offensive. Indeed, protecting speech that provokes vehement opposition is sometimes described as the highest purpose of the First Amendment. The individual’s right to express herself in her own terms provides part of the rationale for this view, as does the potential utility of even extreme or troubling viewpoints in contributing to the marketplace of ideas.

The employee-speech balancing test assumes a markedly different posture. Through its contemplation of scenarios in which the disruption caused by speech can provide a lawful basis for workplace discipline, the balancing test can be understood as constitutionalizing a “heckler’s veto” for controversial expressions.⁵ Speech that generates strong criticism from listeners is disruptive by definition, and avoiding disruption is a leading reason the Court has offered for permitting the restriction of employee speech.

A related problem stems from the modern doctrine’s paramount focus on operational efficiency. Though the Court has acknowledged that “[t]he government cannot restrict the speech of the public at large just in the name of efficiency,”⁶ it has departed from this principle in the employment context.⁷ The promotion of efficiency, however, does not provide an adequate basis for categorically distinguishing between employees and other citizens. Nonemployee speakers can and do create serious public disruptions and inefficiencies. The First Amendment’s customary response is that the government must tolerate these consequences in service of both individual liberty and a general climate of robust discourse.

The analysis might be different if public employees possessed a systematically greater ability to undermine efficiency relative to their nonemployee peers. I see little reason to suspect this is true as a universal matter. A public schoolteacher’s letter to the local newspaper expressing his views about school funding and tax policy might affect his employer by inviting public scrutiny, but the same could be said of letters from other concerned citizens who do not work for the government. A clerical worker’s critical statements about the President might sow discord within her workplace and exact a toll on institutional efficiency, but efficiency costs also arise when the government must strive to maintain order during a public speech by a controversial figure. Tumult is an unavoidable—and, some would say, vital—byproduct of the First Amendment. A mere preference for smooth operations should be no more capable of trumping citizen-speech by public employees than it is for the citizenry at large.

IV.

Stepping back, the most powerful basis for distinction between the government’s respective roles as sovereign and employer arises from the relevance of institutional mission. The very existence of government employers with specified operational missions implies the license for a certain amount of control over employee expression. If a public elementary school is to educate its students, it must be empowered to reprimand a teacher who, harboring a sincere belief that state-run education is the epitome of illegitimate governmental overreaching, sits silently at his desk in a showing of somber protest. Less fancifully, the same school must possess the authority to oversee the teacher’s presentation of curricular materials, even at the expense of his expressive liberty. A teacher retains the right to talk politics in his personal life, but he can be forbidden from doing so when he is supposed to be instructing his students about long division.

The schoolteacher example serves as a useful starting point for exploring the relevance of institutional mission to the constitutional calculus. Yet a teacher’s conduct inside the classroom is best understood as involving the discharge of official responsibilities, and we have already seen that such speech is subject to broad managerial discretion under a parity-based approach. The more difficult question is whether, under a parity-based model of speech protection, promotion of institutional mission can authorize an employer to restrict speech made outside the scope of professional responsibilities in an employee’s capacity as a citizen.

It seems to me that the answer is yes. The explanation owes to the evidentiary value of speech. An employee who makes a statement relevant to his employer’s mission does more than introduce an expressive utterance into the world of ideas. He also provides evidence that may reveal something about his workplace performance. The government ordinarily has no occasion to draw performance-related inferences from the speech of its citizens. But when the speaker is a government worker, his employer should be allowed to react to statements that cast doubt on his fitness for duty—just as the employer is free to react to other indicators of performance, such as workplace productivity. The Constitution does not require that an employee’s words be disregarded for purposes of evaluating his suitability and aptitude.

Some inferences about fitness for employment will be relatively uniform across different institutions. All government employers must be free to react to employee speech that demonstrates functional incompetence to perform assigned tasks. The government “as an abstraction could not penalize any citizen for misunderstanding the views of Karl Marx … but a Department of Political Science can and should show such a person the door,”⁸ even if the confusion was revealed through statements outside the employee’s professional duties. We might imagine a similar line of analysis for speech that suggests a tendency toward detrimental workplace conduct. When an employee posts on his personal webpage that “[e]veryone in [his] office is underpaid and entitled to steal what he can,”⁹ his employer should be permitted to infer that the employee is unfit for government work without waiting for corroborating evidence in the form of actual theft. Perhaps the inference is misguided, and the employee is actually a dedicated and productive official who was just blowing off steam after a particularly grueling day. But making that determination should be committed to the discretion of the employer, who is better positioned than the courts to determine the appropriate conclusion to be drawn from the employee’s statement. For First Amendment purposes, the salient point is that the employee’s speech meaningfully sets him apart from his fellow citizens, who owe no support to his employer’s institutional mission. The presumption of parity is overcome.

Raising the prospect of discipline based on an employee’s aptitude and fitness makes it imperative to identify effective constraints on managerial discretion; too capacious a conception of institutional mission could lead to undue interference with “employees’ freedom to believe and associate.”¹⁰ Parity-based thinking provides a framework for constructing appropriate safeguards. A government employer may prefer that its employees always refrain, even when off the clock, from criticizing the President, commenting on divisive social issues, or using foul language. But the government does not receive so broad a mandate simply by assuming its employer role. What makes the government-as-employer different from the government-as-sovereign is the former’s authorization to enlist citizens in pursuit of specified institutional objectives. Only when an employee’s speech casts doubt on his willingness or ability to promote those objectives does the presumption of parity yield.

Concerns about viewpoint discrimination and ideological coercion are pervasive in the case law on free speech, and they must be taken seriously. So, too, must the related principle that citizens generally should be secure in thoughts and beliefs that are not manifested in unlawful or detrimental action. One might draw on these considerations to argue that even an employee whose off-the-clock speech contradicts his employer’s mission should be protected from discipline unless there is some other evidence to cast doubt on his fitness. As noted, however, a government employee is situated differently from other citizens on matters of institutional mission. Inherent in the existence of goal-driven government institutions is the authority to ensure satisfactory employee performance in pursuit of legitimate institutional objectives. The managerial assessments necessary to evaluate professional performance may encompass an employee’s words as well as his acts; both provide relevant evidence of his likely contribution to the employer’s pursuits. When an employee’s utterances suggest a lack of commitment to the mission he was hired to assist in promoting, his employer should not be forced to search for additional evidence of a performance problem whose existence it can already reasonably infer.

V.

Given the importance that parity theory ascribes to institutional mission, it is fair to ask whether assessing an employer’s mission is the sort of undertaking properly committed to the judiciary. For the reasons expressed, and despite the analytical challenges, I view the inquiry into mission as an unavoidable element of adjudicating employee-speech disputes under the First Amendment.

But in the event that one perceives such matters as beyond the competence of the courts, intermediate options are available. Courts might afford some degree of deference to an institution’s own, good-faith description of its mission. Alternatively, courts might take a “least common denominator” approach by paring the institutional mission down to its core: for a school, the presentation of curricular materials but not the promotion of any ideological beliefs; for a police department, the evenhanded enforcement of the laws but not the promotion of societal perceptions regarding the qualities of law enforcement officers; and so on. Neither of these alternatives is perfect. The former risks allowing too much employer control over speech while the latter raises the opposite concern. Still, either approach would enhance the doctrine’s theoretical coherence relative to the status quo by preserving the essential link between institutional mission and the scope of permissible restraints on expression.

VI.

The presumption of parity implied by the rejection of the once-dominant Holmesian approach provides a new framework for public-employee speech jurisprudence. Parity theory suggests the need to rethink the centrality of both the public-concern requirement and the disruptive consequences of speech. At the same time, it pushes the existing doctrine toward a more deliberate engagement with the evidentiary function of speech as bearing on an employee’s suitability and fitness for government work. The dimensions of this mission-centric approach are nuanced and complex. Nevertheless, though the focus on institutional mission is not likely to make employee-speech cases any easier in the short run, it affords a more promising conceptual starting point for guiding the doctrine’s development.

Acknowledgements:

Randy J. Kozel is an Associate Professor of Law at Notre Dame Law School.

A version of this article will appear in the May 2012 issue of the William and Mary Law Review.

Copyright © 2012 William and Mary Law Review.

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Yet this conventional story is incomplete. The Amendment did not merely lower the voting age to eighteen – it also prohibited any age-based discrimination in voting rights and empowered Congress to police that prohibition through appropriate legislation. This becomes clear when we examine the Amendment’s text and history.

Looking just at the text, the Twenty-Sixth Amendment was not written as a simple limitation on the minimum age of enfranchisement, akin to the constitutional age limits for Congress or the Presidency. Instead it was modeled after the Fifteenth and Nineteenth Amendments, with a general prohibition on a type of voting discrimination (race-based, gender-based, and age-based) followed by a clause granting Congress enforcement power.

Reasoning intratextually, we can make two inferences about the Twenty-Sixth Amendment from this comparison. First, much like the Fifteenth and Nineteenth Amendments, it applies to both the group it was immediately enacted to help (those between eighteen and twenty-one) and any other group that might suffer age-based voting discrimination (young adults, the middle aged, the old). Second, much like all three of the Reconstruction Amendments, its Enforcement Clause empowers Congress to enact legislation that would preempt state laws in order to combat discrimination.

This second point about the Twenty-Sixth Amendment’s Enforcement Clause gains even more force when one looks at the history of the Amendment’s enactment. This is because the Twenty-Sixth Amendment was itself a product of the civil rights-era controversy over how far Congress’s Fourteenth and Fifteenth Amendment enforcement powers extended. Members of Congress had been proposing an amendment to lower the voting age every year since 1942, but those proposals nearly always died in committee. This dynamic finally changed in 1970, when Senator Ted Kennedy of Massachusetts proposed that Congress lower the voting age through a statute – the 1970 renewal of the Voting Rights Act. Kennedy based this proposal on a law review article written by Harvard Professor Archibald Cox. ¹ In the article, Cox argued that the Supreme Court’s holding in Katzenbach v. Morgan – that Congress receives broad deference under the Fourteenth Amendment’s Enforcement Clause when it protects voting rights – would permit Congress to lower the voting age statutorily in both state and federal elections.

Kennedy’s proposal was attached to the Voting Rights Act renewal and successfully enacted, but it was not without controversy. Leading members of Congress and the legal academy argued that it was unconstitutional, and President Richard Nixon even voiced his constitutional objections in a signing statement, noting that he signed the Voting Rights Act renewal “[d]espite my misgivings about the constitutionality of this one provision.”² All of these objectors acknowledged the correctness of the Morgan opinion, but they complained that lowering the voting age to eighteen took congressional power too far.

The statute soon went before the Supreme Court in Oregon v. Mitchell and, in a confusingly divided opinion, the Court upheld the eighteen-year-old vote provision as applied to federal elections but struck it down as applied to state elections. Four liberal Justices voted to uphold the provision in its entirety, four conservative Justices voted to strike it down in its entirety. Only the median vote of Justice Hugo Black supported the state/federal distinction, on the grounds that Congress generally has the power to regulate federal elections. On the Fourteenth Amendment question, Justice Black articulated the principle that the broad enforcement power established in Morgan only applied to the paradigm case of race discrimination, but not to other forms such as age discrimination. The Supreme Court in Mitchell also upheld several other provisions of the Voting Rights Act that combated racial discrimination, thus reaffirming the broad reach of the Fourteenth and Fifteenth Amendments per Morgan. Shortly after this opinion came down, Congress proposed and the states ratified the Twenty-Sixth Amendment. The rapid progress of the Amendment is usually attributed to the anticipated cost of maintaining dual voter registration systems for state and federal elections in the coming 1972 presidential contest.

To summarize, then, Congress took a broad view of the Fourteenth Amendment’s Enforcement Clause language when lowering the voting age statutorily. Justice Black’s plurality opinion confirmed this broad interpretation as applied to race, the Fourteenth Amendment’s paradigm category of discrimination, but not as applied to age. Congress then took the very same language, which had just been so prominently interpreted by all three branches of the federal government as granting Congress significant enforcement powers, and inserted it in a new constitutional amendment that dealt specifically with age discrimination. Given this history it is hard to dispute that the Twenty-Sixth Amendment gave Congress the power to override discriminatory state laws.

Several pieces of ancillary historical evidence confirm the view that Congress can enact legislation to enforce the Twenty-Sixth Amendment. First, the provision of the Voting Rights Act that lowered the voting age to eighteen only prevented the right to vote from being “denied” on the basis of age, while the Twenty-Sixth Amendment prevented it from being “denied or abridged.” This suggests that Congress anticipated that, unlike the statute, the Amendment would achieve more than merely enfranchising eighteen year olds. Second, the Twenty-Sixth Amendment was framed and debated at the same time as the Equal Rights Amendment, which had an identical enforcement clause. Indeed, prior to the proposal of the Twenty-Sixth Amendment there was a discussion in Congress over the framing of the Equal Rights Amendment’s Enforcement Clause, in which several Congressmen went on record discussing the breadth of the power that the enforcement clause language provides post-Morgan. Third, shortly after the enactment of the Twenty-Sixth Amendment, Senator Alan Cranston of California proposed a bill in Congress that would have granted college students the right to register to vote wherever they wanted. The bill was never enacted into law, but it cited the Twenty-Sixth Amendment as one source of constitutional authority. These three pieces of evidence all strongly suggest that Congress understood the Twenty-Sixth Amendment’s Enforcement Clause as granting it power similar to that available under the Reconstruction Amendments.

Once we have established that the Twenty-Sixth Amendment empowers Congress to enact remedial legislation, the next important question is what kinds of legislation it can enact. This turns in part on the standard of review that the federal courts will grant to Congress for such legislation. A constitutional originalist would look to the fact that the Amendment’s framers clearly had the deferential Katzenbach v. Morgan standard in mind when it was enacted, and the originalist would see that as evidence that the same standard should apply to contemporary Twenty-Sixth Amendment legislation. However since that time, the Supreme Court’s 1997 opinion in City of Boerne v. Flores has established a less deferential “congruence and proportionality” standard of review. The Supreme Court has permitted remedial legislation under Boerne as well (for example, the Family and Medical Leave Act in Nevada Department of Human Resources v. Hibbs), but it has required significant congressional fact-finding to establish evidence of discrimination. While the Morgan standard is plainly easier to meet, Twenty-Sixth Amendment legislation should pass muster even under the Boerne standard so long as Congress does its homework.

Finally, a revived Twenty-Sixth Amendment could be used to enact a wide variety of laws that would protect voting rights from age-based discrimination. Several examples follow. First, Congress could require that states change their absentee ballot procedures to better protect the voting rights of overseas soldiers in state elections. Congress already imposes this requirement in federal elections through the Uniformed and Overseas Citizens Absentee Voting Act, but no such requirement exists for state elections. Second, Congress could preempt a number of state laws that discriminate against the old or the young, for example strict ID requirements that disproportionately burden the voting rights of those without drivers’ licenses. Third, Congress could preempt state residency laws that discriminate against college students from out of state and prevent them from voting. Fourth, Congress could prohibit states from disenfranchising those who are suffering from age-related dementia, or perhaps even require states to provide transportation to the polls or other means of voting for those who are too elderly to transport themselves. This is by no means an exhaustive list.

The Twenty-Sixth Amendment is conventionally understood to do nothing more than lower the voting age. But the conventional wisdom is wrong. Properly interpreted, the Twenty-Sixth Amendment establishes a broad constitutional prohibition against age discrimination in voting rights and grants Congress extensive powers to ensure state compliance with that prohibition. These powers allow Congress to take bold action to protect the rights of soldiers, students, senior citizens, and any other group whose members suffer franchise discrimination on account of their age.

Acknowledgments:

Copyright © 2012 The Yale Law Journal Company, Inc.

Eric Fish is a Yale Law School Public Interest Fellow.

This Legal Workshop article is based on Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 YALE L.J. 1168 (2012), available at http://yalelawjournal.org/images/pdfs/1057.pdf.

Obscure constitutional provisions rarely give rise to serious questions: that is why they are obscure. Yet sometimes provisions spring quickly from obscurity to relevance. Never in the nation’s history has the scope and meaning of Congress’s power to “Define and Punish . . . Offenses Against the Law of Nations” mattered as much as now. The once seldom-used power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statute (ATS), to military commission trials in Guantanamo Bay, to the historic prosecutions being conducted against Somali pirates in federal courts. Yet it has not been recognized that these issues all potentially involve the Offenses Clause, and raise similar constitutional questions. Indeed, it has not been previously appreciated that these involve constitutional questions at all, because the Offenses Clause has hitherto received little use and less attention.

This Article is a sequel to The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009). That Article dealt with the extraterritorial scope of the clause, that is, the question of whether it entitles Congress to legislate for the whole world. This is precisely the question that the Supreme Court just asked for further briefing on in the ATS context in Kiobel v. Royal Dutch Shell. This Article speaks not to the geographic scope of the Offenses power, but to its substance. As the Court in Kiobel wrestles with the role of federal courts in determining international norms (the question for which certiorari was originally granted), and other federal courts in the ongoing case of Guantanamo detainee Salim Ahmed Hamdan wrestle with Congress’s ability to define war crimes, the time has come to closely examine Congress’s powers under the Offenses Clause. This once obscure clause, regarded by courts as the source of congressional authority to pass statutes like the ATS and the Military Commissions Act, is now one of the main sites of the fraught and much disputed interface between international law and the Constitution.

The Offenses Clause’s salience comes at a time of unprecedented, yet unheralded, developments in Offenses Clause jurisprudence. Hamdan v. Rumsfeld was the first case ever to find the government exceeded its Offences Clause powers.¹  This historic aspect of the case has been overlooked, perhaps because the case was mostly noted for its more newsworthy rebuke to the Bush Administration’s Guantanamo policies. Hamdan’s military commission and ATS litigation cases implicate the same two questions about the scope of the Offenses power; questionsthis Article seeks to resolve. First, can Congress “Define” only offenses that clearly already exist in international law, or does it also have discretion to codify debatable, embryonic, or even nonexistent norms? Second, what happens to whatever discretion Congress has to “Define . . . Offenses” when it delegates that power to a coordinate branch? This Article will explore both these questions.

II. What Can Be Defined?

The Article begins by surveying the evidence about the original meaning of the provision. Because of the lack of any substantial judicial precedents on the meaning of the Clause, the original sources are a natural place to begin even for those not philosophically committed to originalism. For the Offenses Clause, originalism and textualism are all there is. This Part concludes that the originalist evidence is too thin to be decisive, and not entirely unidirectional. On the whole, it supports the narrow, constrained version of the Congress’s ability to “Define” Offenses. The purposes and historical background of “Offenses,” its limited role in the ratification process, and the language itself tend to suggest a limited scope for “defining” and “offenses.” At the Constitutional Convention, the central notion behind the define power was to require that Congress act to bring certainty to preexisting but vague customary norms before anyone could be punished under them. International law in its raw form was too “deficient and vague” to be the basis of liability. The Offenses power was thought of and grouped with a few rather narrow criminal powers, all of which dealt with well-established wrongful conduct. Furthermore, the term “define” has a narrower meaning than those used to confer the plenary regulatory powers of Congress.

More decisively, the “define” power also applied, in the same constitutional clause, to piracy and high seas felonies, and in both those contexts was understood in a series of early Supreme Court decisions to be limited by the external legal content of those terms. The define power could be no broader than the objective external meaning of the category to be defined. Given the lack of early judicial precedent, or even extensive discussions, of the Offenses provisions, the high seas cases are perhaps the strongest available evidence about the contemporaneous meaning of the Define power. They show that Congress cannot define two plus two to be four, or murder plus high seas to be piracy. Moreover, in a case involving the piracy power, the Supreme Court echoed the views that John Marshall and some Framers had been expressing since the first years of the Republic—that only “real” piracies can be defined as such. Congress could not “define” something that did not have the objective status in clear international law. Similarly, in cases about felonies, the Court made clear that Congress’s definitions had to fit within some objective external definition both of felonies and the high seas.

The actions of the early Congresses are more equivocal. They focused their Offenses legislation on the most widely agreed upon international norms, but this does not disprove their potential power to have acted more aggressively. In the Alien Act controversy James Madison wrote strongly against the notion that Congress could establish offenses outside the clear core of the law of nations, and his position apparently received no rejoinder. Finally, the 1794 Neutrality Acts can be read as advancing a broad notion of “Offenses,” one that includes not just international law crimes, but any acts that for which the U.S. would be legally, or perhaps even only politically, responsible to foreign countries. Yet it is not clear from the historical evidence whether Congress considered the measure an exercise of the Offenses power at all. Also, one might note a tension between the Neutrality Act and the Alien Act. In the latter, it seems to have been agreed that being an enemy alien could be a status punishable as an “offense.” Yet under the U.S.-responsibility theory of Offenses (that it allows Congress to regulate any conduct for which foreign states might hold the U.S. to account), enemy aliens would be entirely outside the scope, as their actions would never be attributed to the U.S. Moreover, this theory would not provide any basis for military commission prosecutions of aliens for war crimes abroad.

Yet a narrow notion of define does not mean a lack of judicial deference to such definitions once made by Congress. Here, the particular character of international custom plays the decisive role. As Morris stressed at the Convention, the content of international custom is nebulous and changing. It cannot be determined by reference to any precise set of materials, to say nothing of materials in English. Thus, considerable deference is appropriate, not because the Offenses Clause is any kind of special or plenary power, but because the vagueness of the law of nations itself makes it difficult to determine if Congress has strayed beyond its Article I authorization. In this zone of vagueness, Congress’s decisions should not be easily second-guessed. Yet occasionally, international law is quite precise—such as about the substantive conduct constituting piracy. If deference to Offenses laws is a function of the inherent vagueness of international law, it would be inappropriate in such cases.

III. How Much Definition Can Be Delegated?

This Part shows that, even assuming Congress has significant discretion in defining offenses, this discretion disappears when it fails to provide any definition but rather leaves the determination of international offenses to other branches. The Offenses Clause expects Congress to provide the definition for customary international law norms actionable in U.S. courts. When Congress fails to define any norms, but leaves their identification and definition to the courts, they can only recognize those offenses that are universally agreed upon with an entirely noncontroversial international law definition. Several reasons support this position.

The first involves the policies that led to the inclusion of the word “Define” in the Art. I, § 8, cl. 10 – the only place in the Constitution the term appears. The reason was to require Congress to provide codified and clear regulations in place of the vagaries of international law. Given the indeterminacy of modern international law it would be hard for potential defendants to know in advance the rules that governing their conduct. International law is sufficiently vague that translating it into judicially administrable rules is essentially a legislative function. The federal judiciary, having only limited powers, lacks this common-law like legislative power.

The second reason involves the policies behind the so-called non-delegation doctrine. The ATS represents extraordinarily broad delegation of legislative powers. If such delegation is not limited by some intelligible principle, but instead further broadened by a notion of discretion—the idea that there is no standard against which a definition can be measured—it would go far beyond anything permitted even under the rather forgiving modern separation of powers doctrine. The Supreme Court’s holding in Sosa v. Alvarez-Machain required that ATS causes of action only be recognized for offenses that have a particularly clear definition and universal acceptance. For this class of cases, perhaps a congressional definition would be redundant. What this Article shows is that Sosa’s standard is not merely derived from the statute, but from the requirements of the Constitution itself.

Finally, foreign policy concerns suggest a narrower role for courts when exercising delegated “defining” power than when Congress uses that power. Choosing what norms to recognize as customary international law implicates America’s obligations to other countries, and raises a variety of foreign relations and diplomatic questions. The positions taken by the United States on the content of international law will in turn shape the external development of that law in ways that bind the U.S. Thus, defining “Offenses” can involve high questions of statecraft. The “vagueness” of international law leaves an unusual degree of room for politically guided judgments. The Framers understood the difference between core violations of international law and “novelties or pretensions of equivocal validity.”². These considerations explain why the Offenses power is given, in the first instance, to Congress, despite the judiciary’s presumptive role of saying “what the law is.”³ Congress’s involvement in foreign relations gives it both special expertise and additional authority.

IV. Implications for the ATS

Thus, regardless of what Congress’s power is under the Offenses Clause, the courts themselves can define only those offenses most clearly established in international law when delegated the power by Congress. This potentially has significant implications for ATS suits. These suits have invoked an increasingly broad set of international norms, of increasing non-obviousness and indefiniteness. When the suitability of a cause of action under the Sosa standard is questionable, doubts must be resolved in favor of caution. This is because the question of definiteness implicates not just the Court’s recent interpretation of the ATS, but also the limits on federal legislative authority and the separation of powers.

A full analysis of whether any particular norm is as definite and universal as piracy or assaults on ambassadors is beyond the scope of this Article. Yet the Court has given a template for analyzing these issues, most recently in Hamdan. To satisfy the Offenses Clause, an offense defined solely by the courts would have to meet the same kind of searching scrutiny given the conspiracy charge in Hamdan. It would have to be shown, for starters, that the same conduct has in fact been punished by other nations or international tribunals as an offense against the law of nations. Finally, one might briefly suggest some recent ATS causes of action are arguably examples of “novelties or pretensions of equivocal validity.” These include the alleged international offenses of child labor, forced labor, cruel and degrading treatment, pharmaceutical testing, and environmental torts.

Perhaps the most active issues in ATS litigation involve not the substantive definition of the crime, but second-order questions. The most contentious of these go to the scope of secondary liability, such as corporate liability and aiding and abetting liability. Yet answering these questions first requires determining where to look. In one view, only the primary conduct—the elements of the offense—comes from international law; all subsidiary questions would be decided by federal common law or some other non-international source, as in Bivens cases. In the other view, at least all matters required to establish liability (like the possibility of corporate culpability) are determined by international law. Under a broader version of this position, all questions, even those posterior to liability like punitive damages, derive from international law.

The analysis in this Article does not answer these questions. But it does suggest that these are not simply questions about the ATS, as they potentially implicate the Offenses Clause. If the ATS does require courts to take these “definitions” from international law, the Offenses Clause would presumably require the same clarity and definiteness for “secondary principles,” which nonetheless determine liability, as for norms of primary conduct. For it is the existence of liability that is characteristic of “offenses,” and those offenses that are against “the law of nations” are primarily for Congress to define.

Acknowledgments

Eugene Kontorovich, Professor, Northwestern University School of Law; Member, Institute for Advanced Study, School of Social Science.

Copyright © 2012 Northwestern University Law Review.

This Legal Workshop piece is based on the following Article: Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitution’s Offense Clause,  106 N.W. L. R. __ (forthcoming 2012).

In Samantar v. Yousuf, the Supreme Court held that the common law, not the Foreign Sovereign Immunities Act (FSIA), governs the immunity of current and former foreign officials from legal proceedings in U.S. courts.¹ Lower courts must now identify and apply these “common law” rules. In so doing, they must determine whether, and when, individuals may be subject to legal proceedings in U.S. courts for conduct performed under color of foreign law and how much deference to give the views of the executive branch about whether such conduct is entitled to immunity in a particular case.

Determining what the common law requires often begins with an assessment of historical practices and understandings. The danger in making such assessments is that unsupported assertions about historical practice can creep into judicial opinions and assume an unwarranted aura of authority by virtue of repeated and uncritical citation.For example, the United States filed a statement of interest in Matar v. Dichter, in which it cited a 1794 opinion by Attorney General William Bradford and a 1797 opinion by Attorney General Charles Lee as “recognizing immunity for the official acts of foreign officials.”² Professors Curtis Bradley and Jack Goldsmith subsequently published an article in which they cited Attorneys General Bradford and Lee’s opinions for the proposition that “suits against foreign officials for their official acts were considered suits against the foreign state and thus were subject to the state’s immunity.”³ The historical record does not support these assertions. Bradley and Goldsmith also speculated that the Executive’s refusal to intervene in early cases brought against foreign officials was due to federalism limits, rather than separation-of-powers concerns.⁴ In fact, the opposite is true.

A systematic search of Attorney General opinions, diplomatic correspondence, and available court records from the 1790s brings to light six civil suits in which defendants asserted “conduct-based” immunity; that is, immunity attached to the official nature of the defendant’s alleged conduct, as opposed to the “status-based” immunity accorded to the defendant by virtue of his or her official position at the time of the legal proceedings. By piecing together the stories of these early cases, this Article provides a more solid evidentiary basis for historical claims about foreign official immunity as understood and applied by U.S. courts.

Under the eighteenth-century law of nations, which was understood as binding on U.S. state and federal courts as part of the general common law, heads of state and diplomatic officials benefited from absolute, status-based immunity and could not be sued or prosecuted while in office. The research detailed in Part I of the Article indicates that other current or former foreign officials, by contrast, were on the same “footing” with “every other foreigner” who came within U.S. territory.⁵ A claim that a defendant acted in his official capacity—a claim to conduct-based immunity—did not operate as an automatic barrier to adjudication on the merits. Moreover, the Executive believed that it did not have constitutional authority to instruct a court to dismiss a private suit on conduct-based immunity grounds because of separation-of-powers—rather than federalism—concerns.

Part II details how, by the end of the nineteenth century, jurisprudence involving claims of conduct-based (or “ratione materiae”) immunity by current or former foreign officials began to merge into a separate but related line of cases involving so-called “acts of state”—that is, public acts a government performs within its own territory, insulated from judicial scrutiny by foreign courts. The continuity between ratione materiae immunity and the Act of State doctrine is significant because many consider immunity to be a defense against jurisdiction, whereas the act of state doctrine constitutes a substantive defense on the merits. Treating a claim of conduct-based immunity more like an affirmative defense would require a defendant to prove that he had acted within his “lawful powers” in order to have a case dismissed on immunity grounds.⁶ It would also preserve the judiciary’s role as the final arbiter of whether such a defense could succeed in specific instances.

Twenty-first century courts need not follow the practices of their eighteenth-century predecessors. However, a richer understanding of those practices can provide a more accurate starting point for evaluating alternatives as lower courts seek to identify and apply the common law rules governing immunity following the Samantar decision.

I. Eighteenth-Century Cases

Part I describes six civil suits brought against current or former foreign officials in U.S. courts in the 1790s. In each suit the defendant attempted to assert conduct-based immunity. Four of these cases were the subject of Attorney General Opinions (Waters v. Collot, Rose v. Cochrane, Parnell & Stewart v. Sinclair, and Jones v. Letombe);⁷ one was mentioned in diplomatic correspondence (Dunant v. Perroud);⁸ and two are included in the Documentary History of the U.S. Supreme Court (Yard v. Davis and Jones v. Letombe).⁹ These cases have not previously been examined together to discern governing principles of foreign official immunity and the separation of powers in eighteenth-century civil suits with foreign relations implications.

By way of example, Parnell & Stewart v. Sinclair illuminates prevailing understandings of conduct-based immunity, as well as the limited role of the Executive in suits against individuals who acted under color of foreign law. Although defendant Henry Sinclair was a privateer rather than a government official, he was acting under a commission from the British government, and he claimed that this official commission shielded him from the jurisdiction of U.S. courts. A letter of marque from King George III commissioned Sinclair to “cruise” against enemy ships.¹⁰ Sinclair, captain of the Swinger, captured the Atlantic, an American ship, while it was en route from a French port in the West Indies back to its home port of Baltimore, on the suspicion that it was carrying enemy property.¹¹ John Parnell and David Stewart, the Atlantic’s owners, brought a civil suit for damages against Captain Sinclair.

Sinclair expected that, having acted under a British commission, he could not be arrested or compelled to give bail even if he entered the United States. However, because he was not a diplomatic official, this expectation proved false. On December 1, 1797, the Alexandria Advertiser reported that “Henry Sinclair, captain of the British letter of marque Swinger, now in this port, was arrested, and imprisoned in the county gaol, on suits for damages amounting to 20,000 dollars, brought against him by Stewart and Son, of Baltimore.”¹² Sinclair later reported that he had been “confined in Gaole” for some time but had finally been able to give bail to guarantee his appearance in court.¹³

Fearing for his livelihood, Sinclair wrote a lengthy and detailed plea to Robert Liston, the British Minister to the United States. He complained to Liston that his arrest and trial would prevent him from commanding the Swinger and pursuing “his customary occupation,” thereby reducing him “to entire ruin, unless he is relieved by the Interposition of His Britannick Majetsy’s Minister Plenipotentiary.”¹⁴ On December 15, Liston transmitted Sinclair’s memorial to Secretary of State Pickering. Pickering forwarded Liston’s letter and Sinclair’s memorial to Attorney General Charles Lee and asked Lee to opine whether Sinclair was entitled to “an exemption from all responsibility in the case to the laws of any other country than his own.”¹⁵

Like his predecessor William Bradford had done in previous cases, Lee opined that Sinclair “ought to prevail” at trial before the court of law at Alexandria, because “it is as well settled in the United States as in Great Britain, that a person acting under a commission from the sovereign of a foreign nation is not amenable for what he does in pursuance of his commission, to any judiciary tribunal in the United States.”¹⁶ However, also like Bradford, Lee disclaimed any power of the Executive to intervene. He based this opinion on precedent, noting that the principle of executive nonintervention had “been settled in the case of General Collot, and I believe in some other cases.”¹⁷ This principle dictated that “the Executive cannot interpose with the judiciary proceedings between an individual and Henry Sinclair, whose controversy is entitled to a trial according to law.”¹⁸

Parnell & Stewart v. Sinclair, together with the other five suits examined in Part I, illustrates the following five principles and practices that should be taken into account in any historical assessment of common law immunity. First, the Executive believed that it did not have the constitutional authority to order a court to dismiss a civil suit brought by a private individual against a current or former foreign official on conduct-based immunity grounds. Second, foreigners who were not diplomatic officials were not personally immune from the jurisdiction of U.S. courts, and could therefore be arrested and compelled to give bail to secure their appearance in a civil suit. Third, individual foreign officials were not liable in U.S. courts for “mere irregularities” in the exercise of their lawful powers. Fourth, if the defendant could show that he or she had acted within his or her “lawful powers,” he or she would be discharged on a promise to appear. This showing required more than the mere assertion that the defendant held an official title at the time of the alleged misconduct. Finally, individuals acting as commercial agents of a foreign sovereign did not bear personal liability for debts incurred on behalf of the government; under applicable principles of agency law, the claim ran exclusively against the principal.

II. Nineteenth-Century Interpretations

Part II describes how legal actors in the nineteenth century interpreted and carried forward these original understandings of conduct-based immunity. For example, on November 5, 1893, the New York Times reported that former U.S. Consul George Underhill and his wife had filed a suit against Jose Manuel Hernandez, a Venezuelan General and Senator, and obtained an order for his arrest in New York.¹⁹ The Underhills alleged that Hernandez had imprisoned them in Ciudad Bolivar, where Underhill operated water works under a concession from the previous government, and that Hernandez had compelled Underhill to sell his plant and property “for a pittance.”²⁰ The Circuit Court for the Eastern District of New York directed a verdict for Hernandez at the conclusion of the trial “upon the ground that because the acts of the defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor.”²¹ Underhill appealed the directed verdict.

The Second Circuit affirmed. It found that the evidence presented at trial was “not sufficient to have warranted a finding by the jury that the defendant was actuated by malice, or any personal or private motive.”²² It also articulated the principle that “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers.”²³ (By then, the United States had recognized the revolutionary forces commanded by General Hernandez as the legitimate government of Venezuela.) In support of its decision to affirm the directed verdict, the Second Circuit cited the Attorney General’s 1794 and 1797 letters relating to the Collot and Sinclair cases for the proposition that “[t]he law officers of the United States have uniformly advised the executive department that individuals are not answerable in foreign tribunals for acts done in their own country, in behalf of their government, by virtue of their official authority”²⁴—even though, as detailed above, this did not mean that such individuals could avoid being arrested in the United States and compelled to respond to a suit. The Second Circuit held that, based on the trial record, “the acts of the defendant were the acts of the government of Venezuela, and, as such, are not properly the subject of adjudication in the courts of another government.”²⁵

The Supreme Court affirmed the Second Circuit’s decision. While Chief Justice Fuller wrote for the court that “acts of legitimate warfare cannot be made the basis of individual liability,”²⁶ his opinion is more often cited for its statement that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”²⁷

Limits on individual responsibility, judicial competence, and territorial jurisdiction thus became entwined with a broader principle of judicial nonintervention in cases involving “acts of the government of another, done within its own territory”—the affirmative defense now known as the Act of State doctrine. This principle of judicial noninterference also appears to have animated much of the questioning during oral argument in the twenty-first-century Supreme Court case Kiobel v. Royal Dutch Petroleum, which has been set for reargument on the question of the reach of U.S. prescriptive and/or adjudicatory jurisdiction over extraterritorial conduct.

The research presented in this Article contains at least two implications for the arguments on extraterritorial jurisdiction in Kiobel, which calls on the Court to interpret the Alien Tort Statute (ATS), a provision in the 1789 Judiciary Act.²⁸ First, five of the six cases involved conduct that occurred outside of the territorial United States; of those, three involved conduct at sea (the available records do not distinguish between conduct on the high seas and conduct within a country’s territorial waters) and two involved conduct within another country’s sovereign territory (Waters v. Collot, which involved conduct in the French colony of Guadeloupe, and Dunant v. Perroud, which involved conduct in the French colony of St. Domingo). The U.S. courts in question did not view the extraterritorial reach of their civil jurisdiction as inherently problematic; rather, diplomatic protests focused on whether or not U.S. courts should adjudicate conduct performed within a foreign official’s lawful powers. Second, the diplomatic correspondence in Yard v. Davis relating to Captain Davis’s potential criminal liability illustrates that U.S. civil jurisdiction could, and did, extend farther than U.S. criminal jurisdiction in certain cases. As the Supreme Court noted in Sosa v. Alvarez-Machain, Attorney General Bradford, writing several years after the ATS was enacted, “likely . . . understood the ATS to provide jurisdiction over what must have amounted to common law causes of action” even if U.S. criminal law would not reach the same conduct because it took place in a foreign country.²⁹ This interpretation of Bradford’s 1795 opinion about the potential civil liability of Americans who had aided and abetted a French attack on the British colony of Sierra Leone is consistent with the prevailing understandings of civil jurisdiction at the time, as reflected in the historical documents examined in this Article.

Conclusion

Absent further congressional action, the immunity of foreign officials not covered by applicable treaties or statutes will be determined under the “common law of official immunity,” not the FSIA.³⁰ The “common law,” understood broadly, comprises a series of choices by authoritative decision makers from which subsequent decision makers have constructed a set of constraints that relevant actors understand as legally binding. By chronicling early choices regarding foreign official immunity, this Article builds a foundation for a more informed conversation about the shape that the “common law of official immunity” can and should take going forward. It also provides a richer historical backdrop for cases such as Kiobel by reminding twenty-first-century judges that their eighteenth- and nineteenth-century predecessors did not doubt that they had adjudicatory jurisdiction over certain conduct performed by foreign officials overseas, even though they occasionally declined to exercise that jurisdiction on prudential grounds.

Acknowledgements:

Chimène I. Keitner is an Associate Professor of Law at the University of California Hastings College of the Law.

This Legal Workshop Editorial is based on the following Article: Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. (forthcoming June 2012).

Copyright © 2012 N.Y.U. Law Review.

The Alien Tort Statute (ATS)² has served as the starting point for many of these debates.  This is so because no other U.S. statute frames the issue of U.S. courts’ application of international law so starkly.  The ATS provides U.S. federal district courts with original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”³  From that sparse and opaque language, litigants have asked U.S. courts to interpret international law and questions related to it, creating a host of bewildering questions that have sprung from these courts’ decisions.  Put simply, the question is whether U.S. courts should be tasked with applying and developing international law and, if so, what are the appropriate constraints on the courts in so doing?  Phrased another more robust and critical way: should international law be part of U.S. law at all?

Of the many questions that have arisen, perhaps the most immediate and pressing ones relate to international-human-rights cases.  Over the past thirty years, the ATS has increasingly been used by human-rights activists and plaintiffs’ lawyers attempting to hold nonstate actors such as multinational corporations accountable for alleged human-rights violations committed outside of the United States.  The importance of the ATS in transnational human-rights litigation against such actors cannot be understated.  Since the modern resurgence of the ATS that began with the Second Circuit’s landmark decision in Filártiga v. Peña-Irala,⁴ which opened U.S. federal courthouse doors to foreign plaintiffs claiming international-human-rights violations, there have been approximately 173 judicial opinions regarding the ATS. One hundred fifty-five ATS cases have been filed against corporations in federal courts, with about six to ten ATS cases being filed annually.  While at least seventeen cases have settled, most ATS cases have resulted in rulings favorable to corporate defendants.  Although it has been challenging for plaintiffs to litigate ATS cases against corporations to a favorable judgment, plaintiffs have generally chosen to press ahead with ATS claims.  This choice and the number of cases generated by it have interposed federal courts into the international-law dialogue and has spawned a substantial academic literature.

ATS cases implicate important institutional and structural concerns at the very heart of our system of government—concerns such as separation of powers, democracy, federalism, and international relations. Concerns of judicial process and judicial competency in the area of foreign affairs are also raised, as well as questions about the extraterritorial application of U.S. law and the conflict between our law and foreign law that such application creates. In looking at ATS cases, therefore, one confronts many of the questions related to transnational litigation in U.S. courts.

The present ATS landscape is ripe for review and reconsideration.  This is so because the legal availability of the ATS to reach corporations for alleged international-human-rights violations occurring abroad is now unsettled.  Over the past several years, various federal appellate courts have issued opinions that intimate a more limited role for the ATS in policing the activities of corporations outside of the United States.  Most notably, in late 2010, the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. held that corporations are not subject to suit under the ATS because corporate liability for customary-international-law violations has not been specifically established as part of international law.⁵  Since that decision, the Seventh, ⁶ Ninth, ⁷ and D.C. Circuits ⁸  have held that corporations may be subject to suit under the ATS.  In light of this split, the Supreme Court’s recent grant in the Kiobel case creates the potential for a path-marking decision regarding the future of ATS claims against corporations for alleged human-rights violations occurring abroad. ⁹

Even putting aside the question of whether corporations are amenable to suit, and regardless of how the Supreme Court ultimately resolves the Kiobel case, recent federal appellate decisions, especially in the area of pleading standards and forum non conveniens, may themselves constrain the ability of plaintiffs to use the ATS to police the activities of nonstate actors occurring outside of the United States. These recent decisions threaten to undo a generation of work in transnational public-law litigation started and theorized in many ways by Harold Koh, former dean of the Yale Law School (and now legal advisor to the State Department).  These decisions also pose challenges for transnational litigation generally, as the legal doctrines announced therein are not limited to ATS suits.

This Article starts with one central question: What if we are witnessing the contraction of ATS litigation in federal court on account of these decisions?  Such a result would affect the scholarly debate as well as lead to further debates concerning other sources of law, such as state and foreign law, which will become the new battlegrounds for transnational litigation in U.S. courts. This Article shows that as the ATS debate regarding international and transnational law in U.S. courts moves away from federal law to state and foreign law, the debate will be refocused as one involving the appropriate relationship between federal and state law and federal and state courts in applying international law, especially in international human rights cases.  The next wave of transnational litigation and academic commentary about that litigation will focus on federalism concerns.

This Article makes three contributions to the debate about the role of international and transnational law in U.S. courts.  First, the Article provides clarity regarding the future of ATS litigation in federal courts, which, as discussed, is the primary vehicle through which scholars have approached the subject of international law in U.S. courts.  As the Article will show, federal appellate court decisions limiting ATS suits will not end the debate concerning what role international law should play in U.S. courts, but will instead create new issues that can be prospectively examined both as they apply to ATS cases and generally in transnational cases.  Second, the Article shifts the debate regarding transnational litigation in U.S. courts away from questions of federal law to questions of state and foreign law.  Third, the Article discusses the likely sources of debate surrounding transnational litigation in U.S. courts in the next decade—a debate that will be about federalism, choice of law, extraterritoriality, preemption, and due process in the context of state and foreign law.  The Article concludes by explaining why a congressional fix to the problem of pleading transnational cases in U.S. courts most appropriately balances the federalism issues at stake in international litigation in U.S. courts.

Acknowledgments:

Copyright © 2012 Donald Earl Childress III.

Donald Earl Childress III is an Associate Professor of Law at the Pepperdine University School of Law.

This Legal Workshop Article is based on Donald Earl Childress III, The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation, 100 Geo. L.J. 709 (2012), available at http://georgetownlawjournal.org/articles/the-alien-tort-statute-federalism-and-the-next-wave-of-transnational-litigation.

Oddly, Citizens United hardly mentions unions. It dealt with a small, conservative nonprofit corporation that sought to distribute via video-on-demand a documentary criticizing Hillary Clinton.   The organization would have been free to proceed with its plan but for the dual facts that it had received a small amount of corporate funding, and it sought to distribute the video within sixty days of the 2008 presidential elections; these factors, taken together, were sufficient to bring it under the Bipartisan Campaign Reform Act’s (BCRA) prohibition on certain corporate and union electioneering.  The same prohibition would have applied had Citizens United been a liberal advocacy group that had received partial funding from the Service Employees International Union (SEIU), and the decision is applicable to electioneering by unions as well as by corporations.

Citizens United is first and foremost a case about the First Amendment rights of corporations, and the archetypal corporation is a profit-seeking enterprise.  Nonetheless, the Court spent a great deal of time talking about the rights of non-profit advocacy organizations like the Sierra Club, the National Rifle Association, and the American Civil Liberties Union.  Like Citizens United, these associations were affected by BCRA because they accepted funding from corporations and unions.  Also like Citizens United—and unlike for-profit corporations—they exist primarily to engage in advocacy.

The distinction between corporations created primarily to engage in advocacy—though in part with contributions from corporations and unions—and corporations created primarily to make a profit might have propelled the Court’s analysis, resulting in a relatively narrow decision.  Notably, that approach had precedent in an earlier case, FEC v. Massachusetts Citizens for Life (MCFL), in which the Court struck down restrictions on electioneering speech by pure advocacy organizations that accepted no money from unions or corporations.² However, rather than extending MCFL to cover organizations that, like Citizens United, received only a small amount of corporate funding, the Court reversed the course it set in MCFL and held that an organization’s purpose—whether to engage in advocacy or to make money—is irrelevant to the First Amendment analysis.

In addition to holding that Citizens United’s organizational mission had no bearing on the outcome of its case, the Court also deemed the fact that BCRA allowed corporations to fund political speech through political action committees (PAC) insufficient to save BCRA.  The Court reasoned that creating a PAC and then complying with the various funding and reporting requirements to which PACs are subject were significant hurdles that impermissibly burdened speech.  Additionally, the Court easily dismissed the constitutional relevance of one seemingly important benefit of the PAC requirement:  that it allowed shareholders to avoid having their money spent on electioneering with which they disagreed.  Instead, the Court left dissenting shareholders two options: they could sell their shares; or they could attempt to harness the power of corporate democracy to stop the undesired electioneering.

With that, the Court freed unions and corporations from the challenged provisions of BCRA, and unions and corporations began using their newfound First Amendment rights to engage in previously prohibited election-related speech.  The mileage that each will gain from Citizens United is an empirical question.  However, there are reasons to anticipate that corporations’ gains in this area will outstrip those of unions.  For example, many unions already had in place PACs and mechanisms for complying with other aspects of election law; even newly created unions are likely to be affiliated with a parent union or federation that can help in this regard.  Perhaps more importantly, though, for-profit corporations, in the aggregate, are likely to have more money with which to engage in electioneering than do unions.  And, while Citizens United also opened up less expensive ways for unions to reach voters, such as canvassing non-union households, it seems doubtful that unions will be able to level the playing field by knocking on doors.  Finally, unions—but not corporations—are subject to additional use and reporting limitations, including requirements designed to ensure that dues and fees obtained from union-represented workers are not used for political advocacy over those workers’ objections.  Whether Citizens United undermines the constitutional justifications for these limits is discussed below.

Thus, it is doubtful at best that Citizens United’s direct effects on unions’ election-related speech will result in a net increase in unions’ influence, at least not relative to that of corporations.  One might be inclined to conclude that Citizens United is a loss for unions.  However, there remains the possibility that Citizens United’s broad articulation of First Amendment principles may expand unions’ speech rights outside the context of federal political elections.  Specifically, there are two main areas in which Citizens United stands in tension with current First Amendment doctrine governing unions:  first, statutory limits on unions’ rights to engage in certain forms of picketing and boycotting; and second, statutory and court-made restrictions on how unions may use dues and fees collected from represented workers to fund political advocacy.

The Court has previously upheld statutory limits on union picketing, boycotting, and striking against First Amendment challenges, even as it has held that similar activity is entitled to significantly more robust protection when engaged in by other types of advocacy groups.  For example, the Court has consistently rejected First Amendment challenges to the National Labor Relation Act’s (NLRA) prohibition on union secondary picketing.³  Secondary picketing seeks to draw a third party—the secondary target—into a labor dispute in order to put additional pressure on the real target of the dispute. For example, the NLRA ban on secondary picketing means that a union in the midst of a labor dispute with a wholesaler may not picket in support of a total consumer boycott of retailers that sell the wholesaler’s products. Secondary picketing is prohibited because of its potential to expand the disruption of a labor dispute. For example, a retailer in the above example might have significant leverage with the wholesaler, which it might bring to bear even though it is indifferent to the outcome of the labor dispute, or even actively opposed to the union’s goals.] In contrast, the Court has held that the First Amendment bars the imposition of civil liability on civil rights protestors who have engaged in similar conduct.⁴

Although the Court’s explanation for this seeming disparity in treatment has shifted over time, its most recent and consistent explanation is based on its perception that labor picketers have a different—and less important—purpose than do civil rights picketers.  Specifically, the Court regards much union picketing as essentially economic, in that it is aimed at procuring monetary benefits for workers.  In contrast, the Court considers other types of picketing to be aimed at more genuinely public purposes.  This view is perhaps most readily apparent in the case of civil rights picketing aimed at securing political and social equality, but the Court views even the Westboro Baptist Church’s picketing of military funerals as addressing “matters of public import.”⁵

The Court has been similarly hostile to assertions that the First Amendment should protect strikes, including strikes that have an expressive or political component.  Take, for example, the case of a group of Washington, D.C. lawyers who decided to stop accepting new appointments.⁶ The lawyers sought to make it politically feasible for the D.C. City Council to raise the rate of compensation for indigent criminal defense work, and their message focused in part on the public’s interest in better legal representation—a public interest reinforced by the Sixth Amendment’s guarantee of counsel.  Nonetheless, the Court deemed that fact irrelevant, focusing instead on the fact that the lawyers sought economic gain, and rejecting the argument that the First Amendment protected the boycott from antitrust enforcement.

This dispositive focus on whether particular speakers—either unions or non-unionized groups of workers—hope to gain economically as a result of their speech and other expressive activity appears to be flatly inconsistent with Citizens United’s reasoning.  Citizens United held conclusively that a speaker’s desire to make money is irrelevant to how robustly the First Amendment protects his, her, or its speech—even though Justice Stevens, in dissent, pointed out that publicly held corporations are bound by law to participate in the political process with the goal of improving their own bottom line.  Thus, post-Citizens United, the Court should assess unions’ invocations of the First Amendment without regard to what unions hope to gain from their speech—instead, if the NAACP’s speech would be protected in a particular circumstance, the SEIU’s speech should receive the same protection.  This does not mean that the Court could not limit unions’ rights to strike, boycott, and picket for other reasons, such as the potential disruptiveness of that behavior.  Rather, it means only that cases differentiating unions from other speakers based on unions’ economic goals must be reevaluated in light of Citizens United.

A second body of law that Citizens United has the potential to change significantly is that governing how unions must treat dues and fees paid by represented workers who object either to union membership generally, or to funding union political advocacy.  That issue encompasses two related questions:  first, whether objecting workers may ever be required to join a union or pay union dues as a condition of employment; and second, even assuming workers must pay for some aspects of union representation, whether they are entitled to exemption from funding union political speech.

As to those objecting employees, the Court has struck a compromise.  In order to prevent employees from freeriding on their dues-paying colleagues, objectors can be required to pay for certain core union activities like bargaining and representing employees in grievance proceedings.  However, objectors cannot be required to pay for other union activities, including political speech and new organizing.  To enforce that boundary, the Court has imposed a set of relatively onerous requirements on unions who want to both collect the fee for representational activities and also engage in political speech using dues paid by non-objecting members.⁷ And recently, the Court concluded that those procedures are merely a floor, leaving states free to impose greater requirements on unions representing public employees if they so choose.⁸

For some employees—public-sector employees and those covered by the Railway Labor Act—this compromise is a matter of constitutional law, meaning that the Court has concluded that compelling these workers to fund union political speech would violate their First Amendment rights.⁹ By contrast, for private-sector employees covered by the NLRA, the Court has imposed the same scheme as a matter of statutory construction.¹⁰ In both instances, though, the Court balanced the objectors’ rights—conferred either by the First Amendment or the NLRA—against the ways in which requiring employees to pay union dues and fees promoted the government’s compelling interest in labor peace.  Notably, though, the Court did not consider unions’ First Amendment rights to engage in political speech with minimal encumbrance.

The Citizens United Court’s approach to the rights of dissenting shareholders differs dramatically from its approach in the analogous union context.  Specifically, Citizens United weighed the First Amendment rights of corporations to engage in political speech against the rights of their shareholders to avoid funding that speech without having to sell their stock or prevail in the corporate election arena.  Further, the Court deemed the requirement that corporations create a PAC to engage in political speech to be a significant encumbrance on corporate First Amendment rights.  Importing these principles into the union context means that, at minimum, unions’ rights to engage in the political process must be part of the calculus, to be weighed against dissenters’ First Amendment or statutory rights.  Additionally, courts must consider whether administrative and accounting requirements designed to protect dissenters are themselves excessive burdens on unions’ First Amendment rights.  This new analysis of objectors’ rights has the potential to lessen the requirements imposed on unions who collect the “fair share fee” from objectors while engaging in political speech.

Of course it is not at all clear that the Court will apply Citizens United to labor unions as robustly as that opinion’s language suggests it should be applied.  First, the Court could say in a future case that Citizens United was never intended to apply outside of the campaign finance context.  Second, the Court could simply conclude that labor law as it stands now is narrowly tailored to achieve the compelling state interest of protecting commerce.  However, it is hard to take seriously the idea that some union speech—such as picketing in support of a consumer boycott—is genuinely likely to have a significant effect on American economic stability, particularly given private-sector unions’ modern day weakness.

Citizens United is far from a panacea for unions, but it has potential to prompt courts to confront the artificial distinction that the Supreme Court has drawn between unions and other types of associations engaged in advocacy.  Even if Citizens United is likely to mean little in terms of unions’ abilities to meaningfully counter corporate electioneering, it could prompt an expansion of unions’ First Amendment rights in other contexts.  Thus, Citizens United’s sweeping language and approach to the First Amendment may yet prove to contain a silver lining for unions.

Acknowledgements:

Charlotte Garden is an Assistant Professor at Seattle University School of Law.

A version of this article appeared in the October 2011 issue of the William and Mary Law Review: Charlotte Garden, Citizens, United and Citizens United: The Future of Labor and Speech Rights? 53 WM. & MARY L. REV. 1 (2011).

Copyright © 2011 William and Mary Law Review.