Institutions of American Law (Davies) 2016 (summer) textbook

Institutions of American Law

Textbook (Summer 2016 edition)

Ross E. Davies

Antonin Scalia Law School George Mason University

1

“nothing clears up a case so much as stating it to another person”

Sherlock Holmes, in Arthur Conan Doyle,

The Adventure of Silver Blaze (1892)

Copyright © 2016 Ross E. Davies

2

Contents page

Syllabus ........................................................... 4

Part 1: Optional Exercise, Just for Practice ................ 7

Part 2: The Assignments ..................................... 26

3

Institutions of American Law — Summer 2016 — syllabus (July 8 version) Professor Ross E. Davies ([email protected]; 703-993-8049). Office hours by appointment.

Classes: 7-9 p.m., Mon.-Fri., weeks of July 18 and July 25, in Room ___. I will hold open office hours in our classroom right after class every evening. There is also a series of excursions (the “treasure hunt”), the essentials of which will take about eight hours to complete, though students who would rather undertake more work may do so. On Saturday, July 23, I will be available in Room ___ to consult (in person and online) with students who work on the treasure hunt that day. So, you will be spending a good deal of time on this course: 28 official classroom and class activity hours (10 class sessions at 2 hours each, plus 8 hours on the treasure hunt), plus whatever it takes to read the assigned texts and prepare for the quizzes and class participation, plus the time to get to and from the school, plus whatever extra time you invest in the treasure hunt. Between us, I am sure we can make it worth the investment.

Sketch and purpose of the course: Here is the short version of what this course is and what it is not. This course is: a series of interesting and challenging (and, I hope, entertaining) plunges into just a few of the fabulously numerous and various aspects of a life in the law. Each class session will have some common themes, including attention to the simultaneously distinctive and in-terconnected fundamental practice areas of the modern lawyer — transactions, regulation, litigation, and counseling (if you’re not sure what those words mean, don’t worry about it, you will know by the end of the course) — and the roles of the lawyer both as a provider of services to clients and the public and as a participant in enterprise and governance. This course is not: (1) an orientation program, or (2) a “how to succeed in law school” seminar, or (3) remedial therapy for people who aren’t ready for law school. For #1 and #2 you will soon get plenty of excellent help from our faculty and administration at the start of the school year (and throughout your career here). And #3 would be a waste of time because we know you are already ready to suc-ceed here — that’s why you were admitted.

Learning outcomes: By the end of this course you should have a sense — part practical, part theoretical, part romantic — of how a life in the law fits together. More specifically, this course will help you to: (a) develop some useful points of reference for your own understanding of modern law and lawyering, and a sense of trends in the development of legal institutions and law practice; (b) practice the healthy skepticism and intellectual initiative that should be part of every lawyer’s professional habits of mind; and, finally and not least importantly, (c) enjoy one of the most enriching of lawyerly activities — reading about law and then probing its meaning and function with engaged colleagues.

Reading: The readings for each class session are about 20 pages long (give or take a few pages) — enough, I hope, to draw you into the subjects of the day without being enough to overwhelm you. All course materials — including a “Textbook” containing all the required reading — are available at www.rossdavies.org. Feel free to print them out or read them on an electronic gadget. Either way, bring them to class, along with your notes and research. Failure to bring your current reading, notes, and research to class will affect your grade. It is important that all of us have hands-on access to our work during class. If you have any trouble with the website or the documents you find (or don’t find) there, please do let me know.

Class sessions: Each class will begin with a short multiple-choice quiz (8 or 10 questions). You’ll have 10 minutes for that. The quizzes are designed simply to determine whether you have, in fact, done the reading, paid attention, and thought about it. For someone who has done the reading reasonably carefully the quizzes are nothing to fear, but for someone who has not done the reading they will be, well, painful. We will spend about 30 minutes talking about the reading, using quiz questions as starting points, with the me doing most but not all of the talking. Then for about 20 minutes (maybe more, maybe much more) one or more of our guest speakers (all of whom are reputable experts in their respective fields) will comment on and field questions about their own careers, the institutions in which they work or worked, and the roles of lawyers in those institutions. Then we will take a 10-minute break. We will devote the rest of the class to more discussion of the reading and your research, with you doing most but not all of the talking. First half of the course: After an overview opening class session (“Citizens,” in which we will work through several topics relating to individuals as actors in governance and as actors subject to law), there will be several ses-sions focusing mostly on institutions of governance (with the rather self-explanatory titles “Legislatures,” “Executives,” “Courts,” and “Regulators”). Midway: An all-day opportunity to get started on, or make progress on, or complete the “treasure hunt” that is designed, mostly, to acquaint you with the substantive, jurisdictional, and geographical range of legal institutions in our area. Second half of the course: Several sessions focusing mostly on institutions served by lawyers (“Enterprises” and “Associations”) and institutions organized by and for lawyers (“Law Firms, Bars & Public Service” and “Law Schools”), with a wrap-up session at the end.

Assignments: Please (1) do the assigned reading and come to class prepared to be quizzed on it and to discuss it, and (2) do no more than 20 minutes of outside research to support your contributions to the discussion. Make no mistake, the assigned readings are short but that does not mean they are easy, and doing that reading is only the first part of your mission. The second part is to engage in some investigation of the context and quality of the reading material. So, as you read, note points where you want to know more or feel a bit skeptical. Then follow up — do some research to satisfy your curiosity. If you come up with something good, please be ready to tell us about it in class (and feel free to email discoveries and thoughts to your classmates and me if that seems appropriate). Please do not overdo it — you need not come up with anything big or groundbreaking. Short, interesting

4

additions that will help all of us understand what we’re reading is what we need. Do not worry if 20 minutes of digging turns up nothing. Nothing is a perfectly acceptable result. Just be ready to describe how you went about it. This part of the coursework is as much about developing habits (reading with an eye for things that ought to be looked into further, flagging those things, and then doing the looking) and techniques (searching, sorting, and analyzing) as it is about substance. Do not underdo it either — you do need to be prepared to talk based on what you did or did not find, though it is unlikely you will be called upon to do so in every class session. Remarks unsupported by reference to passages in the reading or specific research work will be rejected — cut off as politely as possible. Think about it this way: This is a meeting of professionals where we share our expertise and research, not a book club where we spout reactions, opinions, and casual thoughts. If you have something to say, direct us to the relevant passage in the reading or summarize your relevant research effort. Assignments are, of course, subject to change based on the pace of the course and the whim of the instructor.

July 18: Citizens: guest speakers — Catherine Sevcenko (FIRE), Shawn Stout (Woolley Stout PLLC) July 19: Courts: guest speaker — Judge Penney S. Azcarate (Fairfax Circuit Court, 19th Judicial Circuit of Virginia) July 20: Executives: guest speaker — Greg Jacob (O’Melveny & Myers LLP) July 21: Regulators: guest speaker — Jennifer Bisk (USPTO) July 22: Legislatures: guest speaker — Jenifer Healy (Dentons) July 23: All day session (we will talk about the “treasure hunt” on the first day of class, but you can get started now, if you like) July 25: Enterprises: guest speaker — Joe Judge (Verisign) July 26: Associations: guest speakers — Brenda Leong (Future of Privacy Forum), Sarah Nash (Gov’t Accountability Project) July 27: Law Firms, Bars & Public Service: guest speaker — Kyung (Kathryn) Dickerson (SmolenPlevy) July 28: Law Schools: guest speaker — Dean and Professor Henry Butler (GMUSL) July 29: wrap-up: guest speakers — Jacquelyn Branscomb, Reily Inman, Nikki Snyder (current students who took this course)

Friendly advice:

(a) Stay an assignment or two ahead of schedule, just in case. (b) Note and follow in-class instruction. If you miss a class, you must get notes from a classmate. Make arrangements in advance as a precaution against unanticipated absences. There is a strong tradition in law of sharing notes with colleagues in need. Be a part of it. (c) Look up words you don’t know. Use a good dictionary or two. Interesting or important words are good quiz candidates. (d) Read the syllabus. If you ask me a question about something that is dealt with in the syllabus, my reply will be, “Please read the syllabus.”

Treasure Hunt: Some Law and Legal Institutions in the DC Area 1. Grades and hours: This project counts for 20% of your grade in this course, and 8 hours of class time. There are six topics (A–F), each with three levels (1–3). You must complete all six level 1 tasks. Completing level 2 and level 3 tasks will earn you bonus points (see also paragraph #7 below).

2. Topics and levels: They are listed in the table below. To complete a task, you must post two things — (1) the specified photo and (2) a caption with your name and the topic/level associated with your photo — to the “Institutions of American Law (Summer 2016)” Facebook group. Also, please feel free to add any appropriate comments that might be useful or entertaining for your classmates and me (for example, tips — a description of how you went about completing the task, warnings about problems you encountered, things you would do differently were you to do it again, etc. — and anecdotes — facts you learned, people you met, events you observed, etc.). I have posted a complete set of model photographs, with basic captions. You should take a look before you start, because your objective is for your photos to match mine as closely as is reasonably possible (and for your captions to be much more useful and entertaining).

3. Facebook uploading instructions: If you do not have Facebook account, set one up now. It’s easy, and you will need it in order to post your photos and captions. Request to join the “Institutions of American Law (Summer 2016)” Facebook group via this link: https://www.facebook.com/groups/InstitutionsofAmericanLaw/. Once you are on Facebook and a member of our Facebook group, you will be able to upload your photos and captions to the appropriate topic album within the group. To do that: (1) go to the “Institutions of American Law (Summer 2016)” Facebook group; (2) click on “Photos,” then “Albums,” then the appropriate “topic album”; and (3) upload your photos and captions that belong in that topic album. There are sample photos and captions in each topic album.

4. Collaboration: It is OK. Indeed, it is good. Feel free to engage in all or part of the hunt in the company of classmates. There are no tasks that require partners (you can do everything on your own), but there are also no tasks that preclude partners (you can do anything together). Just make sure that everyone and everything associated with the task is unmistakable in your photos, and that captions are complete. The only constraint is that all posts must be nice. Civility is the watchword.

5. Deadline: Saturday, July 30. Advice: Plan ahead, do not put anything off until the last minute, and do not imagine that there will be make-up opportunities if you don’t get this work done. Deadlines matter in the law more than they do in some other

5

contexts. Don’t believe me? Try googling “deadline is jurisdictional” and then poking around in the numerous judicial opinions (including some from the U.S. Supreme Court) rejecting appeals filed after deadlines have passed. Please consider this exercise an opportunity to practice being a good lawyer by taking steps to avoid missing a deadline. If you want to get a head start, feel free! You can join our Facebook group — “Institutions of American Law (Summer 2016)” — now (https://www.facebook.com /groups/InstitutionsofAmericanLaw/), and get started right away, if you like. If you need help, email Justin Aromas-Janosik ([email protected]).

6. Questions, and Saturday session: If you have questions, feel free to ask them on our Facebook page. I will answer as quickly as I can. In addition, I will be in our classroom at the law school from 10am to 6pm on Saturday, July 23, with an open conference call (Google or Skype or something else TBA) running. Anyone who wants to may stop by or call in with questions, and I will answer them live.

7. Treasure: A treasure hunt is only a fair treasure hunt if there is treasure to be had at the end of the hunt. There is. When you have completed all 18 tasks you will hear from me.

Topics (A–F) / Levels (1–3)

Level 1 tasks (required) Level 2 tasks (bonus) Level 3 tasks (bigger bo-nus)

Topic A: Congress photo of you in front of the Cannon House Office Building

photo of you in front of the Russell Senate Office Building

photo of you in front of the headquarters of the Gov’t Accountability Office

Topic B: Federal Agen-cies

photo of you in front of a horse statue at the Federal Trade Commission

photo of you in front of the United States Attorney’s Office for the District of Columbia

photo of you in front of the Patent and Trademark Office

Topic C: State Courts photo of you in front of the Arlington General District Court, 17th Judicial District of Virginia

photo of you in front of the Arling-ton County Detention Facility

photo of you in front of the Fairfax Circuit Court

Topic D: Federal Courts photo of you in front of the Superior Court of the District of Columbia

photo of you in front of the United States District Court for the Dis-trict of Columbia

photo of you in front of the United States Court of Appeals for the Federal Circuit

Topic E: Library of Congress

photo of your Library of Con-gress reader card (hint: you can get a card quickly and easily in the building where the Papers of Harry A. Blackmun are kept)

photo of your reader card with an “Opinion log sheet” (from the Pa-pers of Harry A. Blackmun) that no one else in our class has photo-graphed (don’t worry — there are hundreds of Opinion log sheets to choose from in boxes 118, 133, 149, 171, 193, 211, 235, 256, 278, 299, 319, 339, 364, 389, 411, 433, 460, 487, 511, 540, 563, 582, 606, 630 of the Blackmun Papers)

photo of your reader card with the first page of the official opinion of the Supreme Court (published in the “United States Reports”) in the case on the Opinion log sheet you photo-graphed for level 2 of this topic (hint: the “US Reports” are available in the law library in the building where the Blackmun Papers are, and at our law school)

Topic F: Law Firms photo of you in front of the building directory listing the offices of the firm of Sher, Cummings & Ellis

photo of you in front of the building directory listing the offices of O’Melveny & Myers LLP

photo of you with the model ship in the lobby of the building housing Bean, Kinney & Korman PC

Intellectual property: The instructor owns all course content, regardless of form. You may share copies with classmates dur-ing the course, but other than that you must keep all of it in any format to yourself forever.

Grades: This is a pass-fail course. Quizzes count for 50% of the grade: They are described in the “Class sessions” section above. There are no make-up quizzes: miss a class in which a quiz is administered, miss that quiz. Taking all the quizzes is good because for students who take all quizzes the lowest score is excluded from final grade calculations. Participation counts for 30% of the grade: Let’s be clear about this up front: The evaluation of participation is subjective, which means that if you do not like your participation grade there will be no basis for challenging it. Having said that, you are unlikely to get a bad grade if you come to class prepared to make useful contributions, do in fact make them, and respectfully listen to and comment on the contributions of others. Obviously, you will not be able to be a good participant if you are absent. The “treasure hunt” counts for 20% of the grade: It is described below, and on the class Facebook page. Attendance: You are responsible for attending the number of class sessions required by our school’s regulations (they are available on the law school website, and you are responsible for knowing and following them) to be eligible for course credit.

I have read and do understand the rules of this course, and I know that following them is part of class participation. I will follow them.

Name (print): __________________________ Signature (scribble): __________________________ Date: __/__/__

6

Part 1

Optional Exercise, Just for Practice

7

Institutions of American Law — Summer 2016 Professor Ross E. Davies ([email protected]; 703-993-8049).

Textbook Part 1: Optional Exercise, Just for Practice What you are looking at is truly optional work. You are not required to do anything with it, or even look at it. There is no extra credit (in grades or reputation) to be gained. I’ve put it together mostly because I recall being — long, long ago — a bit nervous about how my first law school class would go. This is my effort to relieve those nerves for those of you who may be feeling the same way. So, what is it? It is a sample set of readings (with some points that might be good for the 20 minutes of follow-up re-search called for in the syllabus) and a sample quiz (with the answers on the back). As you will see, the main purpose of the quiz is to inspire you to read closely and pay attention to every word (including looking up the ones you do not know), and to confirm that you have done so. The topic is an institution of American law — the Vice President (a mixed legislative-executive creature) — that we are unlikely to discuss much in class and that will not appear on any in-class quiz. Try it out if you like, or don’t if you don’t like. It is up to you. Personally, I think it’s pretty interesting and enjoyable stuff.

July 8 (or any other day): Vice President page

Constitution of the United States of America (1791) (excerpt) ............................................................................ 9 Some points that might be good for the 20 minutes of follow-up research called for in the syllabus:

1. Does the Vice President show up anywhere else in the Constitution? 2. Is there anything else in the Constitution that directly affects provisions about the Vice President? 3. Is there anything useful or interesting in the drafting or ratification of the Vice-Presidential provisions? 4. Has a Vice President ever said anything relating to any of the Constitution’s Vice-Presidential provisions? 5. Have any of the Vice-Presidential provisions ever resulted in any interesting statutes, or executive orders,

or judicial opinions, or regulations, or acts by any Vice Presidents, or anything else?

Senate Resolution No. 215, 71st Congress (1930) .......................................................................................... 10 Some points that might be good for the 20 minutes of follow-up research called for in the syllabus:

1. What is the legislative history of this law — previous versions, debates, reports, etc.? 2. What action was taken based on this law once it was enacted? 3. Did any similar laws precede or follow this one? 4. Did anyone in the Executive branch, or any court, ever do or say or decide anything related to this law?

Trial Proceedings, U.S. v. Agnew, Crim. No. 73-0535 (D. Md. Oct. 10, 1973) (excerpts) ....................................... 14 Some points that might be good for the 20 minutes of follow-up research called for in the syllabus:

1. Are there any later proceedings or judicial opinions that go with this proceeding? 2. Is this proceeding cited or mentioned in more recent cases? 3. Has this case been cited by any courts in more recent cases? 4. Why is Chief Judge Hoffman (from Virginia) presiding in a Maryland court?

And, finally, some general points for every reading assignment that might be good for the 20 minutes of follow-up research called for in the syllabus:

1. Did Davies give us the latest, most authoritative law, or have there been more recent developments, including: (a) changes in the Constitution; (b) actions by Congress, the President, or the courts; (3) anything else?

2. Have similar issues come up elsewhere, including: (a) in States; (b) in other countries; (c) in public or private en-terprises; (d) in other places; (e) in the past?

3. Was this important in other contexts at the time it happened, and if it was, how? How about now? 4. And please try to come up with others on your own. All I’ve given you are some places to start.

Remember: When you choose research topics, focus on the legal institution we are studying, and be specific. Search for — and bring with you to class — the best relevant laws and facts you can find. Thus, for example, a judicial opinion by a famous judge that merely mentions something in the assigned reading would be pretty use-less, but a judicial opinion by any judge (famous or not) that overrules or criticizes or deals in some other mean-ingful way with something in the assigned reading would be quite useful. Similarly, an editorial written by a ce-lebrity journalist or a hunger strike engaged in by a famous musician relating to the assigned reading might be an entertaining distraction, but it would not be as interesting and useful as an editorial written by an obscure junior Senator or a hunger strike by a party to a case relating to the same topic. Likewise, a general biographical sketch of a famous lawyer or politician whose name appears in the assigned reading would be pretty much useless, but details about the involvement of such a famous lawyer or politician in matters connected to or similar to the as-signed reading would be quite useful.

Practice Quiz (to be taken whenever you want to) .......................................................................................... 24 Practice Quiz (with answers in bold and underlined) .................................................................................. 25

8

Constitution of the United States of America (excerpt) Article 1 Section 3 (excerpt). . . . The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. . . .

9

71ST CONGRESS 2D SESSION S. EES. 215

IN THE SENATE OF THE UNITED STATES

JANUARY 6 (calendar clay, FEBRUARY 20), 1930

Mr. NORRIS submitted the following resolution; which was referred to the Committee on Privileges and Elections

APRIL 8 (calendar day, APRIL 10), 1930

Reported by Mr. SHORTRIDGE, with amendments; considered, amended, and referred to the Committee to Audit and Control the Contingent Expenses of the Senate

APRIL 8 (calendar clay, APRIL 10), 1930

Reported by Mr. FESS, without further amendment; considered, amended, and agreed to

^SOLUTION 1 Resolved, That a special committee consisting of five

2 Senators, to he appointed by the Vice President, is hereby

3 authorized and directed to investigate the campaign expendi-

4 tures of the various candidates for the United States Senate,

5 the names of the persons, firms, or corporations subscribing,

0 the amount contributed, the method of expenditure of said

7 sums, and all facts in relation thereto, not only as to the

8 subscriptions of money and expenditures thereof but as to

9 the use of any other means or influence, including the

10 promise or use of patronage, and all other facts in relation

11 thereto which would not only be of public interest but which

12 would aid the Senate in enacting any remedial legislation

10

1 or in deciding any contest which might be instituted involv-

2 ing the right to a seat in the United States Senate.

3 The investigation hereby provided for, in all the respects

4 above enumerated, shall apply to candidates and contests

5 before senatorial primaries, senatorial conventions, and the

6 contests and campaign terminating in the general election

7 in November, 1930.

8 No Senator shall be appointed upon said committee

0 from a State in which a Senator is to be elected in the gen-

10 eral election in 1930.

11 Said committee is hereby authorized to act upon its

12 own initiative and upon such information as in its judgment

13 may be reasonable or reliable. Upon complaint being made

14 before said committee, under oath, by any person, persons,

15 senatorial candidate, or "political committee, setting forth

16 allegations as to facts which, under this resolution it would

17 be the'duty of said committee to investigate, the said com-

18 mittee shall investigate such charges as fully as though it

19 were acting upon its own motion, unless, after a hearing

20 upon such complaint, the committee shall find that the

21 allegations in said complaint are immaterial or untrue.

22 Said committee is hereby authorized, in the performance

23 of its duties, to sit at such times and places, either in the

24 District of Columbia or elsewhere, as it deems necessary or

25 proper. It is specifically authorized to require the attend-

11

1 ance of witnesses by supoena or otherwise; to require the

2 production of books, papers, and documents; and to employ

3 counsel, experts, clerical, and other assistants; and to

4 employ stenographers at a cost not exceeding 25 cents per

5 one hundred words.

6 Said committee is hereby specifically authorized to act

7 through any subcommittee authorized to be appointed by

8 said committee. The chairman of said committee or any

9 member of any subcommittee may administer oaths to wit-

10 nesses and sign subpoenas for witnesses; and every person

11 duly summoned before said committee, or any subcommittee

12 thereof, who refuses or fails to obey the process of said

18 committee or who appears and refuses to answer questions

14 pertinent to said investigation shall be punished as prescribed

15 by law.

16 The expenses of said investigation, not exceeding in the

17 aggregate $100,000, shall be paid from the contingent fund

18 of the Senate on vouchers signed by the chairman of the

19 committee or the chairman of any subcommittee.

20 All hearings before said committee shall be public, and

21 itll orders or decisions of the committee shall be public.

22 The committee shall make a full report to the Senate

23 on the first day of the next session of the Congress.

12

W W W CD CD CD ™*

w « Hi o l-S rt- CD

rt- CD

4 2 CD 3. t!5 CD CD if

CD ^

CD i-j l-S CD

>

& > Q £ Pi rt- ** W o w O w < l-H d Pi s: M Ki i—'• H rt- rt [-1 rt rt-

d" 00 *2 rt S31

O - 00 PJ

CD as

p O OQ *-> 50 ,—^ B CD d

Pi c-l- o

p 1—t

CD d tt B

5 g P

O O 3

rt

CD Pi CD

P d

t-h d t-i rt- cr CD hi

CD d Pi P i-S

X CD d CO

dments

Com

mi

CD d P. P i-S

Pi

B 1—< <-t- rt CD CD

p Pi p

P- P

Pi P

P CD CO CD Ci

P O d

SB era CD CD

B CD

P>

> w

o

rt- CD

IK O P

rt CO 0 d#

fed

H W

Pi B M tr-i

t—i CD cl

O CD d rt- O CD

£ CD pi & O

a? CD CO

W CO

M

d P rt- £ B M

p d

K> O

a CD CD d CD CO pi o CO Pi d CO - d O P> O H l-a en O <£ CD CO & O Pi O CO CD d " rt 0

CD &

S" d CO

3 w M

>

p^g. CD P

^8 <-t- M

CD P

o

B £ CD N

O P

a.

CD E.

£ P- go a>

5 © ^ c CD P

a-B OQ CD

?o p

ff. ^ o o

pj I-J. SO

2. 5- w> * ° X W CD

Hs ^ S*

^B B CD 1 1

o cj

O

BO

to

13

Trial Proceedings, U.S. v. Agnew

Crim. No. 73-0535 (D. Md. Oct. 10, 1973) (Walter E. Hoffman, J., sitting by special designation)

excerpts (including facsimiles of pages 5-8 of the original transcript)

14

15

16

17

18

19

Elliot L. Richardson, Attorney General of the United States (transcript pages 11-15): . . . May it please the Court, I am, like every other participant in these proceedings, deeply conscious of

the critical national interests which surround them. The agreement between the parties now before the Court is one which must be just and honorable, and

which must be perceived to be just and honorable not simply to the parties but, above all, to the American people.

From the outset of the negotiations which have culminated in these proceedings, the Department of Jus-tice has regarded as an integral requirement of any agreement a full disclosure of the surrounding circum-stances, for only with knowledge of these circumstances can the American people fairly judge the justice of the outcome.

One critical component of these circumstances, as Mr. Topkis [defense counsel] has mentioned, is the government’s evidence.

In accordance therefore with the agreement of counsel, I offer for the permanent record of these pro-ceedings an exposition of the evidence accumulated by the investigation conducted by the Office of the United States Attorney for the District of Maryland as of October 10, 1973.

Because this exposition is complete and detailed, it is sufficient for present purposes simply to state that this evidence establishes a pattern of substantial cash payments to the defendant during the period when he served as Governor of Maryland in return for engineering contracts with the State of Maryland.

Payments by the principal in one large engineering firm began while the defendant was County Execu-tive of Baltimore County in the early 1960’s and continued into 1971.

The evidence also discloses payments by another engineer up to and including December 1972. None of the government’s major witnesses has been promised immunity from prosecution and each of

the witnesses who would testify to having made direct payments to the Vice President has signed a sworn statement subject to the penalties of perjury.

In the light of the serious wrongdoing shown by its evidence, the government might have insisted, if permitted by the Court to do so, on pressing forward with the return of an indictment charging bribery and extortion. To have done this, however, would have likely inflicted upon the Nation serious and permanent scars. It would have been the defendant’s right to put the prosecution to its proof.

The Department of Justice had conceded the power of Congress, once an indictment had been returned, to proceed by impeachment. The Congress could well have elected to exercise this constitutional power. If the Congress chose not to act, the defendant could, while retaining office, either have insisted upon his right to a trial by jury or have continued to contest the right of the government to try an incumbent Vice President. Whichever of these courses were followed, it would have consumed not simply months but years, with potentially disastrous consequences to the vital interests of the United States. Confidence in the adequacy of our fundamental institutions would itself have been put to severe trial. It is unthinkable that this Nation should have been required to endure the anguish and uncertainty of a prolonged period in which the man next in line of succession to the presidency was fighting the charges brought against him by his own government.

On the basis of these considerations, I am satisfied that the public interest is better served by this Court’s acceptance of the defendant’s plea of nolo contendere to a single-count information charging income tax evasion.

There remains the question of the government’s position toward the sentence to be imposed. One possible course would have been to avoid this difficult and painful issue by declining to make an af-

firmative recommendation. It became apparent, however, in the course of the negotiations that, without such a recommendation, no agreement could be achieved. No agreement could have been achieved, more-over, if that recommendation did not include an appeal for leniency.

20

I am firmly convinced that, under all the circumstances, leniency is justified. I am keenly aware, first, of the historic magnitude of the penalties inherent in the Vice President’s resignation from his high Office and his acceptance of a judgment of conviction for a felony. To propose that a man who has suffered these pen-alties should, in addition, be incarcerated in a penal institution, however brief, is more than I, as head of the government’s prosecuting arm, can recommend or wish.

Also deserving of consideration is the public service rendered by the defendant during more than four and one-half years as the Nation’s second highest elected official. He has been an effective spokesman for the Executive Branch in the councils of state and local government. He has knowledgeably and articulately represented the United States in meetings with the heads of other governments. He has participated actively and constructively in the deliberations of the government in a diverse range of fields.

Out of compassion for the man, out of respect for the Office he has held, and out of appreciation for the fact, by his resignation, he has spared the Nation the prolonged agony that would have attended upon his trial, I urge that the sentence imposed on the defendant by this Court not include confinement.

Spiro T. Agnew, defendant and former Vice President of the United States (transcript pages 16-18):

. . . May I say, at the outset, I want to express my appreciation for the courtesy and cooperation extend-ed to me through my counsel in their deliberations with the prosecutors and throughout the consultations on this matter.

My decision to resign and enter a plea of nolo contendere rests on my firm belief that the public interest requires swift disposition of the problems which are facing me. I am advised that a full legal defense of the probable charges against me could consume several years. I am concerned that intense media interest in the case would distract public attention from important national problems to the country’s detriment.

I am aware that witnesses are prepared to testify that I and my agents received payments from consulting engineers doing business with the State of Maryland during the period I was Governor.

With the exception of the admission that follows, I categorically deny the assertions of illegal acts on my part made by government witnesses.

I admit that I did receive payments during the year 1967 which were not expended for political purposes and that therefore these payments were income, taxable to me in that year, and that I so knew.

I further acknowledge that contracts were awarded by state agencies in 1967 and other years to those who made such payments, and that I was aware of such awards. I am aware that government witnesses are prepared to testify that preferential treatment was accorded to the paying companies pursuant to an under-standing with me when I was the Governor. I stress, however, that no contracts were awarded to contrac-tors who were not competent to perform the work and, in most instances, state contracts were awarded without any arrangement for the payment of money by the contractor.

I deny that the payments in any way influenced my official actions. I am confident, moreover, that testi-mony presented in my behalf would make it clear that I at no time conducted my official duties as County Executive or Governor of Maryland in a manner harmful to the interests of the county or state or my duties as Vice President of the United States in a manner harmful to the Nation; and, I further assert that my ac-ceptance of contributions was part of a long-established pattern of political fund-raising in the state. At no time have I enriched myself at the expense of the public trust.

Walter E. Hoffman, Chief Judge, United States District Court for the Eastern District of Virginia (tran-script pages 18-22):

For the past two days counsel for the defendant and the representatives of the Department of Justice have engaged in what is known as “plea bargaining,” a practice which has received the judicial approval of the Supreme Court of the United States.

21

As the Judge of the Court, I have refrained from making any recommendation to the parties involved as I was unaware of the facts involving the alleged charges.

The agreement finally reached between the parties, and which has been fully set forth by Mr. Topkis, one of the attorneys for the defendant, and Mr. Richardson, the distinguished Attorney General of the United States, was the result of some relinquishment of rights on both sides. We are all aware of the fact that some persons will criticize the result and the sentence to be imposed but, in a case such as this, it would be impossible to satisfy everyone.

Once the agreement was reached between the parties, it had to be submitted to the Judge for his ap-proval or disapproval. It was late yesterday afternoon when I learned the final details of the negotiations. I insisted that all details would have to be submitted in open court and in the presence of the defendant be-fore any formal approval or disapproval could be given. Such has now been accomplished and it becomes my duty to proceed.

Any judge must accept the final responsibility as to any sentence, but this does not mean that he should disregard the negotiations and advices of the parties who are far more familiar with the facts, the national interest, and the consequences flowing from any sentence to be imposed.

As far as the Court is involved, the defendant is on trial for willful evasion of income taxes for the calen-dar year 1967, which charge is a felony in the eyes of the law. He has entered a plea of nolo contendere which, so far as this criminal prosecution is concerned, is the full equivalent of a plea of guilty. Such a plea is frequently accepted in income tax evasion cases as there are generally civil consequences flowing therefrom, and the criminal court is not interested in the precise amount of taxes which may he due. The plea of nolo contendere merely permits the parties to further litigate the amount due without regard to the conviction following such a plea.

A detailed statement has been filed by the Department of Justice and refuted by the defendant, all of which are wholly unrelated to the charge of income tax evasion. These statements are the part of the under-standing between the parties and are submitted merely because of the charges and countercharges which have received so much advance publicity. Of course, the agreement further provides that the federal gov-ernment will take no further action against the defendant as to any federal criminal charge which had its inception prior to today; reserving the right to proceed against him in any appropriate civil action for mon-eys allegedly due. Furthermore, neither this Court nor the Department of Justice can limit the right of any state or organization to take action against the defendant. Since the Department of Justice, pursuant to its agreement, will be barred from prosecuting the defendant as to any criminal charge heretofore existing, the truth of these charges and countercharges can never be established by any judicial decision or action. It would have been my preference to omit these statements and end the verbal warfare as to this tragic event in history, hut I am not inclined to reject the agreement for this reason alone.

There is a fundamental rule of law that every person accused of a crime is presumed to be innocent until such time as the guilt is established beyond a reasonable doubt. It is for this reason that I must disregard, for the purpose of imposing sentence, the charges, countercharges and denials which do not pertain to the sin-gle count of income tax evasion. I have so advised counsel for the parties and they are in agreement that this is my duty.

We come then to the charge of income tax evasion which, as I stated, is a felony and a most serious charge in itself. In approving the plea agreement between the parties, I have not overlooked my prior writ-ings and sentences in other income tax cases. Generally speaking, where the defendant is a lawyer, a tax accountant, or a business executive, I resort to the practice of imposing a fine and a term of imprisonment, but provide that the actual period of confinement be limited to a period of from two to five months, with the defendant being placed on probation for the balance of the term. The reason for taking such action is that our method of filing income tax returns is fundamentally based upon the honor of the individual report-

22

ing his income, and a sentence of actual confinement serves as a deterrent to others who are required to file their returns.

But for the strong recommendation of the Attorney General in this case, I would be inclined to follow the same procedure. However, I am persuaded that the national interests in the present case are so great and so compelling — all as described by the chief law enforcement officer of the United States — that the ends of justice would he better served by making an exception to the general rule.

I, therefore, approve the plea agreement between the parties. Mr. Agnew, would you stand. . . .

23

your name: ___________________________


Quiz #0 (practice), July 8, 2016: Vice President INSTRUCTIONS: PLEASE READ THEM!

1. Do not begin until the instructor instructs you to do so. 2. You have the first 10 minutes of class to complete this quiz. 3. This is a closed-book quiz. 4. You may scribble anything anywhere on the quiz, but only clearly circled answers will be considered for your grade. 5. If you fail to put your name on this quiz you will receive a score of zero.

• • • • • • • Question 1: When the Vice President of the United States is absent from the Senate, who serves as President of the Senate?

a. Whoever the Senate chooses. b. The Senate majority leader. c. The President of the United States. d. The Secretary of State. e. A Senator designated by the Vice President.

Question 2: When does the Vice President have a vote in the Senate?

a. When it is equally divided. b. When necessary to form a quorum. c. Whenever it sits as a court of impeachment. d. Both (a) and (b) above. e. Both (a) and (c) above.

Question 3: In which Article of the U.S. Constitution does the section in the reading assigned for today appear?

a. Article 1. b. Article 2. c. Article 3. d. Article 4. e. None of the above.

Question 4: How many members was the Vice President authorized to appoint to the committee created by S. Res. 215?

a. Five. b. Six. c. Seven. d. Nine. e. None of the above.

Question 5: Which Senators were barred from membership on the special committee created by S. Res. 215?

a. Those from a State in which a Senator was to be elected in the general election in 1928. b. Those from a State in which a Senator was to be elected in the general election in 1929. c. Those from a State in which a Senator was to be elected in the general election in 1930. d. Those from a State in which a Senator was to be elected in the general election in 1931. e. None of the above.

Question 6: What was the special committee created by S. Res. 215 directed to investigate?

a. election campaign expenditures. b. Government Printing Office contracts. c. Post Office corruption. d. Vice Presidential patronage. e. None of the above.

Question 7: In U.S. v. Agnew, to what charged crime did Agnew plead nolo contendere?

a. Public contract fraud. b. Election fraud. c. Securities fraud. d. Tax fraud. e. None of the above.

Question 8: According to the presiding judge in U.S. v. Agnew, a plea of nolo contendere was the equivalent, insofar as that criminal proceeding was concerned, of “_______.”

a. A plea of guilty. b. A plea of no contest. c. A plea of not guilty. d. A plea of sapiento post eventum. e. None of the above.

Question 9: In the assigned transcript excerpts from U.S. v. Agnew, who questioned the defendant?

a. Defense counsel. b. Grand jurors. c. The judge. d. The prosecutor. e. None of the above.

Question 10: In U.S. v. Agnew, what was the maximum term of imprisonment to which Agnew could have been sentenced?

a. 1 year. b. 2 years. c. 3 years. d. 4 years. e. None of the above.

Bonus: Who is Jay Topkis? _____________________________________________ _____________________________________________ _____________________________________________

24

your name: ___________________________


Quiz #0 (practice), July 8, 2016: Vice President INSTRUCTIONS: PLEASE READ THEM!

1. Do not begin until the instructor instructs you to do so. 2. You have the first 10 minutes of class to complete this quiz. 3. This is a closed-book quiz. 4. You may scribble anything anywhere on the quiz, but only clearly circled answers will be considered for your grade. 5. If you fail to put your name on this quiz you will receive a score of zero.

• • • • • • • Question 1: When the Vice President of the United States is absent from the Senate, who serves as President of the Senate?

a. Whoever the Senate chooses. b. The Senate majority leader. c. The President of the United States. d. The Secretary of State. e. A Senator designated by the Vice President.

Question 2: When does the Vice President have a vote in the Senate?

a. When it is equally divided. b. When necessary to form a quorum. c. Whenever it sits as a court of impeachment. d. Both (a) and (b) above. e. Both (a) and (c) above.

Question 3: In which Article of the U.S. Constitution does the section in the reading assigned for today appear?

a. Article 1. b. Article 2. c. Article 3. d. Article 4. e. None of the above.

Question 4: How many members was the Vice President authorized to appoint to the committee created by S. Res. 215?

a. Five. b. Six. c. Seven. d. Nine. e. None of the above.

Question 5: Which Senators were barred from membership on the special committee created by S. Res. 215?

a. Those from a State in which a Senator was to be elected in the general election in 1928. b. Those from a State in which a Senator was to be elected in the general election in 1929. c. Those from a State in which a Senator was to be elected in the general election in 1930. d. Those from a State in which a Senator was to be elected in the general election in 1931. e. None of the above.

Question 6: What was the special committee created by S. Res. 215 directed to investigate?

a. election campaign expenditures. b. Government Printing Office contracts. c. Post Office corruption. d. Vice Presidential patronage. e. None of the above.

Question 7: In U.S. v. Agnew, to what charged crime did Agnew plead nolo contendere?

a. Public contract fraud. b. Election fraud. c. Securities fraud. d. Tax fraud. e. None of the above.

Question 8: According to the presiding judge in U.S. v. Agnew, a plea of nolo contendere was the equivalent, insofar as that criminal proceeding was concerned, of “_______.”

a. A plea of guilty. b. A plea of no contest. c. A plea of not guilty. d. A plea of sapiento post eventum. e. None of the above.

Question 9: In the assigned transcript excerpts from U.S. v. Agnew, who questioned the defendant?

a. Defense counsel. b. Grand jurors. c. The judge. d. The prosecutor. e. None of the above.

Question 10: In U.S. v. Agnew, what was the maximum term of imprisonment to which Agnew could have been sentenced?

a. 1 year. b. 2 years. c. 3 years. d. 4 years. e. None of the above.

Bonus: Who is Jay Topkis? He was Agnew’s lead counsel in U.S. v. Agnew. He is now retired from Paul, Weiss, Rifkind, Wharton & Garrison LLP.

25

Part 2

The Assignments

26


Textbook Part 2: The Assignments This is the material that you should: (a) read; (b) think and do follow-up research about before class; and (c) talk about (and listen to your peers talk about) in class. It is also the material on which you will take a quiz at the beginning of class.

July 18: Citizens page Constitution of the United States of America (1791, 1868, 1971) (excerpts) .......................................................... 28 Taylor v. Louisiana, 419 U.S. 522 (1975) (excerpt) ........................................................................................ 29 California Water Storage District Law, Cal. Water Code §§ 41000-41020 (2016) (excerpt) ....................................... 46 Citizen Petition Denial Response from FDA to Dr. Roberta Wyde and Mr. Richard Wyde (2015) ............................... 49

July 19: Courts Constitution of the United States of America (1788, 1795) (excerpts) .................................................................. 56 Virginia v. Copto-Lavalle, 58 Va. Cir. 148 (Va. Cir. Ct. – Fairfax – 2002) ............................................................ 57 Williams v. Pennsylvania, No. 15-5040 (U.S. 2016) (excerpt) ........................................................................... 61

July 20: Executives Constitution of the United States of America (1788) (excerpt) ........................................................................... 78 Executive Order 11246 (1965) (as amended) ................................................................................................ 79 Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971) ............................ 86

July 21: Regulators Safety Zone; Confluence of James River and Appomattox River, Hopewell, VA, 81 Fed. Reg. 43087 (2016) ................ 104 In re: Savoy Energy, L.P., UIC Appeal Nos. 16-01, 16-02 & 16-03 (Environmental App. Bd. June 3, 2016) ................. 107 Nixon Presidential Historical Materials: Opening of Materials, 80 Fed. Reg. 21266 (2015) ...................................... 113

July 22: Legislatures Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991) (excerpt) ....... 114

July 23: All day session (treasure hunt — no required reading)

July 25: Enterprises

Constitution of Virginia (1971) (excerpt) ................................................................................................... 140 Dodge v. Ford, 204 Mich. 459 (1919) (excerpt) .......................................................................................... 143

July 26: Associations NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................................................. 161 Kansas City Royals v. MLBPA, 532 F.2d 615 (8th Cir. 1976) .......................................................................... 180

July 27: Law Firms, Bars & Public Service W. Thomas Kemp, The American Bar Association, 7 Minn. L. Rev. 520 (1922) ................................................... 197 Code of Virginia §§ 54.1-3900 & 54.1-3910 (2016) (excerpts) ........................................................................ 207 Virginia State Bar, Professional Guidelines (2016) (excerpts) ........................................................................... 209

July 28: Law Schools

Charles Noble Gregory, A History and Estimate of the Association of American Law School[s], 19 Yale L.J. 17 (1909) .... 214 ABA Standards and Rules of Procedure for Approval of Law Schools (2015-2016) (excerpts) .................................... 223

July 29: wrap-up Schatz v. RSLC, 669 F.3d 50 (1st Cir. 2012) .............................................................................................. 243 Letter from Christy Susman, Senior Attorney, Jack Daniel’s Properties, Inc., to Patrick Wensink (2012) ..................... 249 Frank H. Easterbrook, Commencement Address (2012) ................................................................................ 251 Brief of Bob Kohn as Amicus Curiae, U.S. v. Apple Inc. (2012) ........................................................................ 253

27

Constitution of the United States of America (excerpts) Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment 6 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Amendment 14 (excerpt) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age [changed by section 1 of Amendment 26], and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

28

OCTOBER TERM, 1974

Syllabus 419 U. S.

TAYLOR v. LOUISIANA

APPEAL FROM THE SUPREME COURT OF LOUISIANA

No. 73-5744. Argued October 16, 1974-Decided January 21, 1975

Appellant, a male, was convicted of a crime by a petit jury selectedfrom a venire on which there were no women and which wasselected pursuant to a system resulting from Louisiana constitu-tional and statutory requirements that a woman should not beselected for jury service unless she had previously filed a writtendeclaration of her desire to be subject to jury service. The StateSupreme Court affirmed, having rejected appellant's challenge tothe constitutionality of the state jury-selection scheme. Held:

1. Appellant had standing to make his constitutional claim,there being no rule that such a claim may be asserted only bydefendants who are members of the group excluded from juryservice. Peters v. Kiff, 407 U. S. 493. P. 526.

2. The requirement that a petit jury be selected from a repre-sentative cross section of the community, which is fundamental tothe jury trial guaranteed by the Sixth Amendment, is violatedby the systematic exclusion of women from jury panels, which inthe judicial district here involved amounted to 53% of the citizenseligible for jury service. Pp. 526-533.

3. No adequate justification was shown here for the challengedjury-selection provisions and the right to a jury selected from afair cross section of the community cannot be overcome on merelyrational grounds. Pp. 533-535.

4. It can no longer be held that women as a class may beexcluded from jury service or given automatic exemptions basedsolely on sex if the consequence is that criminal jury venires arealmost all male, and contrary implications of prior cases, e. g.,Hoyt v. Florida, 368 U. S. 57, cannot be followed. Pp. 535-537.

282 So. 2d 491, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which DOUGLAS,BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ.,joined. BURGER, C. J., concurred in the result. REENQUIST, J.,filed a dissenting opinion, post, p. 538.

William McM. King argued the cause and filed a brieffor appellant.

29

TAYLOR v. LOUISIANA

522 Opinion of the Court

Kendall L. Vick, Assistant Attorney General of Louisi-ana, argued the cause for appellee. On the brief wereWilliam J. Guste, Jr., Attorney General, Walter Smith,and Woodrow W. Erwin.

MR. JUSTICE WHrIT delivered the opinion of theCourt.

When this case was tried, Art. VII, § 41,1 of the Loui-

siana Constitution, and Art. 402 of the Louisiana Codeof Criminal Procedure 2 provided that a woman shouldnot be selected for jury service unless she had previouslyfiled a written declaration of her desire to be subject tojury service. The constitutionality of these provisionsis the issue in this case.

' La. Const., Art. VII, § 41, read, in pertinent part:"The Legislature shall provide for the election and drawing of

competent and intelligent jurors for the trial of civil and criminalcases; provided, however, that no woman shall be drawn for juryservice unless she shall have previously filed with the clerk of theDistrict Court a written declaration of her desire to be subject tosuch service."

As of January 1, 1975, this provision of the Louisiana Constitutionwas repealed and replaced by the following provision, La. Const.,Art. V, § 33:

"(A) Qualifications."A citizen of the state who has reached the age of majority is

eligible to serve as a juror within the parish in which he is domiciled.The legislature may provide additional qualifications.

"(B) Exemptions."The supreme court shall provide by rule for exemption of jurors."2 La. Code Crim. Proc., Art. 402, provided:"A woman shall not be selected for jury service unless she has

previously filed with the clerk of court of the parish in whichshe resides a written declaration of her desire to be subject to juryservice."This provision has been repealed, effective January 1, 1975.The repeal, however, has no effect on the conviction obtained inthis case.

30

OCTOBER TERM, 1974

Opinion of the Court 419 I. S.

I

Appellant, Billy J. Taylor, was indicted by the grandjury of St. Tammany Parish, in the Twenty-second Judi-cial District of Louisiana, for aggravated kidnaping.On April 12, 1972, appellant moved the trial court toquash the petit jury venire drawn for the special criminalterm beginning with his trial the following day. Appel-lant alleged that women were systematically excludedfrom the venire and that he would therefore be deprivedof what he claimed to be his federal constitutional rightto "a fair trial by jury of a representative segment of thecommunity . .. .

The Twenty-second Judicial District comprises theparishes of St. Tammany and Washington. The ap-pellee has stipulated that 53% of the persons eligiblefor jury service in these parishes were female, and thatno more than 10% of the persons on the jury wheel inSt. Tammany Parish were women.' During the periodfrom December 8, 1971, to November 3, 1972, 12 femaleswere among the 1,800 persons drawn to fill petit juryvenires in St. Tammany Parish. It was also stipulatedthat the discrepancy between females eligible for juryservice and those actually included in the venire wasthe result of the operation of La. Const., Art. VII, § 41,and La. Code Crim. Proc., Art. 402.1 In the present case,a venire totaling 175 persons was drawn for jury servicebeginning April 13, 1972. There were no females on thevenire.

Appellant's motion to quash the venire was deniedthat same day. After being tried, convicted, and sen-tenced to death, appellant sought review in the SupremeCourt of Louisiana, where he renewed his claim that the

3 The stipulation appears in the Appendix, at 82-84, filed in Ed-wards v. Healy, No. 73-759, now pending before the Court.

4 Ibid.

31

TAYLOR v. LOUISIANA


petit jury venire should have been quashed. TheSupreme Court of Louisiana, recognizing that this claimdrew into question the constitutionality of the provisionsof the Louisiana Constitution and Code of Criminal Pro-cedure dealing with the service of women on juries,squarely held, one justice dissenting, that these pro-visions were valid and not unconstitutional under federallaw. 282 So. 2d 491,497 (1973).r

Appellant appealed from that decision to this Court.We noted probable jurisdiction, 415 U. S. 911 (1974),to consider whether the Louisiana jury-selection systemdeprived appellant of his Sixth and Fourteenth Amend-ment right to an impartial jury trial. We hold that itdid and that these Amendments were violated in this caseby the operation of La. Const., Art. VII, § 41, and La.Code Crim. Proc., Art. 402. In consequence, appellant'sconviction must be reversed.

II

The Louisiana jury-selection system does not disqualifywomen from jury service, but in operation its concededsystematic impact is that only a very few women, grosslydisproportionate to the number of eligible women in thecommunity, are called for jury service. In this case, nowomen were on the venire from which the petit jury wasdrawn. The issue we have, therefore, is whether a jury-selection system which operates to exclude from juryservice an identifiable class of citizens constituting 53%

5 The death sentence imposed on appellant was annulled and setaside by the Supreme Court of Louisiana in accord with this Court'sdecision in Furman v. Georgia, 408 U. S. 238 (1972), with instruc-tions to the District Court to impose a life sentence on remand.The Supreme Court of Louisiana granted a rehearing to appellanton certain other issues not relevant to this appeal, 282 So. 2d 491,500 (1973), and later denied a second petition for rehearing.

32

OCTOBER TERM, 1974

Opinion of the Court 419 U. S.

of eligible jurors in the community comports with theSixth and Fourteenth Amendments.

The State first insists that Taylor, a male, has nostanding to object to the exclusion of women from hisjury. But Taylor's claim is that he was constitutionallyentitled to a jury drawn from a venire constituting a faircross section of the community and that the jury thattried him was not such a jury by reason of the exclusionof women. Taylor was not a member of the excludedclass; but there is no rule that claims such as Taylorpresents may be made only by those defendants who aremembers of the group excluded from jury service. InPeters v. Kiff, 407 U. S. 493 (1972), the defendant, awhite man, challenged his conviction on the ground thatNegroes had been systematically excluded from juryservice. Six Members of the Court agreed that peti-tioner was entitled to present the issue and concludedthat he had been deprived of his federal rights. Taylor,in the case before us, was similarly entitled to tender andhave adjudicated the claim that the exclusion of womenfrom jury service deprived him of the kind of factfinderto which he was constitutionally entitled.

III

The background against which this case must bedecided includes our holding in Duncan v. Louisiana, 391U. S. 145 (1968), that the Sixth Amendment's provisionfor jury trial is made binding on the States by virtue ofthe Fourteenth Amendment. Our inquiry is whetherthe presence of a fair cross section of the community onvenires, panels, or lists from which petit juries are drawnis essential to the fulfillment of the Sixth Amend-ment's guarantee of an impartial jury trial in criminalprosecutions.

The Court's prior cases are instructive. Both in the

33

TAYLOR v. LOUISIANA


course of exercising its supervisory powers over trials infederal courts and in the constitutional context, theCourt has unambiguously declared that the Americanconcept of the jury trial contemplates a jury drawn froma fair cross section of the community. A unanimousCourt stated in Smith v. Texas, 311 U. S. 128, 130 (1940),that "[i]t is part of the established tradition in the useof juries as instruments of public justice that the jurybe a body truly representative of the community." Toexclude racial groups from jury service was said to be"at war with our basic concepts of a democratic societyand a representative government." A state jury systemthat resulted in systematic exclusion of Negroes as jurorswas therefore held to violate the Equal Protection Clauseof the Fourteenth Amendment. Glasser v. UnitedStates, 315 U. S. 60, 85-86 (1942), in the context of a fed-eral criminal case and the Sixth Amendment's jury trialrequirement, stated that "[o]ur notions of what a properjury is have developed in harmony with our basic con-cepts of a democratic society and a representative govern-ment," and repeated the Court's understanding that thejury "'be a body truly representative of the commu-nity' ... and not the organ of any special group or class."

A federal conviction by a jury from which women hadbeen excluded, although eligible for service under statelaw, was reviewed in Ballard v. United States, 329 U. S.187 (1946). Noting the federal statutory "design tomake the jury 'a cross-section of the community' "and thefact that women had been excluded, the Court exercisedits supervisory powers over the federal courts andreversed the conviction. In Brown v. Allen, 344 U. S.443, 474 (1953), the Court declared that "[o]ur duty toprotect the federal constitutional rights of all does notmean we must or should impose on states our conceptionof the proper source of jury lists, so long as the source

34

OCTOBER TERM, 1974


reasonably reflects a cross-section of the population suit-able in character and intelligence for that civic duty."

Some years later in Carter v. Jury Comm'n, 396 U. S.320, 330 (1970), the Court observed that the exclusionof Negroes from jury service because of their race "con-travenes the very idea of a jury--'a body truly represent-ative of the community' . . ." (Quoting from Smithv. Texas, supra.) At about the same time it was con-tended that the use of six-man juries in noncapitalcriminal cases violated the Sixth Amendment for failureto provide juries drawn from a cross section of thecommunity, Williams v. Florida, 399 U. S. 78 (1970).In the course of rejecting that challenge, we said thatthe number of persons on the jury should "be largeenough to promote group deliberation, free from outsideattempts at intimidation, and to provide a fair possi-bility for obtaining a representative cross-section of thecommunity." Id., at 100. In like vein, in Apodaca v.Oregon, 406 U. S. 404, 410-411 (1972) (plurality opin-ion), it was said that "a jury will come to such a [com-monsense] judgment as long as it consists of a group oflaymen representative of a cross section of the com-munity who have the duty and the opportunity todeliberate . . . on the question of a defendant's guilt."Similarly, three Justices in Peters v. Kiff, 407 U. S., at500, observed that the Sixth Amendment comprehendeda fair possibility for obtaining a jury constituting a repre-sentative cross section of the community.

The unmistakable import of this Court's opinions, atleast since 1940, Smith v. Texas, supra, and not repudi-ated by intervening decisions, is that the selection of apetit jury from a representative cross section of the com-munity is an essential component of the Sixth Amend-ment right to a jury trial. Recent federal legislationgoverning jury selection within the federal court systemhas a similar thrust. Shortly prior to this Court's decision

35

TAYLOR v. LOUISIANA


in Duncan v. Louisiana, supra, the Federal Jury Selectionand Service Act of 1968 6 was enacted. In that Act, Con-gress stated "the policy of the United States that alllitigants in Federal courts entitled to trial by jury shallhave the right to grand and petit juries selected atrandom from a fair cross section of the community in thedistrict or division wherein the court convenes." 28U. S. C. § 1861. In that Act, Congress also establishedthe machinery by which the stated policy was to beimplemented. 28 U. S. C. §§ 1862-1866. In passingthis legislation, the Committee Reports of both theHouse 7 and the Senate I recognized that the jury playsa political function in the administration of the law and

I Pub. L. 90-274, 82 Stat. 53, 28 U. S. C. § 1861 et seq.7 H. R. Rep. No. 1076, 90th Cong., 2d Sess., 8 (1968):

"It must be remembered that the jury is designed not only to under-stand the case, but also to reflect the community's sense of justicein deciding it. As long as there are significant departures from thecross sectional goal, biased juries are the result-biased in the sensethat they reflect a slanted view of the community they are supposedto represent."

See S. Rep. No. 92-516, p. 3 (1971).8 S. Rep. No. 891, 90th Cong., 1st Sess., 9 (1967): "A jury chosen

from a representative community sample is a fundamental of our

system of justice."Both the Senate and House Reports made reference to the de-

cision of the Court of Appeals in Rabinowitz v. United States, 366 F.2d 34, 57 (CA5 1966), which, in sustaining an attack on the compo-sition of grand and petit jury venires in the Middle District ofGeorgia, had held that both the Constitution and 28 U. S. C. § 1861,prior to its amendment in 1968, required a system of jury selection"that will probably result in a fair cross-section of the communitybeing placed on the jury rolls." See S. Rep. No. 891, supra, at 11, 18;H. R. Rep. No. 1076, supra, n. 7, at 4, 5.

Elimination of the "key man" system throughout the federalcourts was the primary focus of the Federal Jury Selection andService Act of 1968. See H. R. Rep. No. 1076, supra, at 4 and n. 1.

36

OCTOBER TERM, 1974


that the requirement of a jury's being chosen from a faircross section of the community is fundamental to theAmerican system of justice. Debate on the floors of theHouse and Senate on the Act invoked the Sixth Amend-ment,9 the Constitution generally,"0 and prior decisionsof this Court 1 in support of the Act.

We accept the fair-cross-section requirement as fun-damental to the jury trial guaranteed by the SixthAmendment and are convinced that the requirementhas solid foundation. The purpose of a jury is to guardagainst the exercise of arbitrary power-to make avail-able the commonsense judgment of the community asa hedge against the overzealous or mistaken prosecutorand in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v.Louisiana, 391 U. S., at 155-156. This prophylacticvehicle is not provided if the jury pool is made up ofonly special segments of the populace or if large, distinc-tive groups are excluded from the pool. Communityparticipation in the administration of the criminal law,moreover, is not only consistent with our democraticheritage but is also critical to public confidence in thefairness of the criminal justice system. Restricting juryservice to only special groups or excluding identifiablesegments playing major roles in the community cannotbe squared with the constitutional concept of jury trial."Trial by jury presupposes a jury drawn from a poolbroadly representative of the community as well asimpartial in a specific case.... [T]he broad representa-tive character of the jury should be maintained, partlyas assurance of a diffused impartiality and partly

9 114 Cong. Rec. 3992 (1968) (remarks of Mr. Rogers). See also118 Cong. Rec. 6939 (1972) (remarks of Mr. Poff).

10 114 Cong. Rec. 3999 (1968) (remarks of Mr. Machen).Id., at 6609 (remarks of Sen. Tydings).

37

TAYLOR v. LOUISIANA


because sharing in the administration of justice is a phaseof civic responsibility." Thiel v. Southern Pacific Co.,328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting).

IV

We are also persuaded that the fair-cross-sectionrequirement is violated by the systematic exclusionof women, who in the judicial district involved hereamounted to 53% of the citizens eligible for jury service.This conclusion necessarily entails the judgment thatwomen are sufficiently numerous and distinct from menand that if they are systematically eliminated from jurypanels, the Sixth Amendment's fair-cross-section require-ment cannot be satisfied. This very matter was debatedin Ballard v. United States, supra. Positing the fair-cross-section rule-there said to be a statutory one-theCourt concluded that the systematic exclusion of womenwas unacceptable. The dissenting view that an all-malepanel drawn from various groups in the communitywould be as truly representative as if women wereincluded, was firmly rejected:

"The thought is that the factors which tend toinfluence the action of women are the same as thosewhich influence the action of men-personality,background, economic status-and not sex. Yet itis not enough to say that women when sitting asjurors neither act nor tend to act as a class. Menlikewise do not act as a class. But, if the shoe wereon the other foot, who would claim that a jury wastruly representative of the community if all menwere intentionally and systematically excluded fromthe panel? The truth is that the two sexes are notfungible; a community made up exclusively of oneis different from a community composed of both;the subtle interplay of influence one on the other is

38

OCTOBER TERM, 1974


among the imponderables. To insulate the court-room from either may not in a given case make aniota of difference. Yet a flavor, a distinct qualityis lost if either sex is excluded. The exclusion ofone may indeed make the jury less representativeof the community than would be true if an economicor racial group were excluded." 329 U. S., at 193-194.12

:2 Compare Peters v. Kiff, 407 U. S. 493, 502-504 (1972) (opinionof MARSHALL, J., joined by DOUGLAS and STEWArT, JJ.):

"These principles compel the conclusion that a State cannot, con-sistent with due process, subject a defendant to indictment or trial bya jury that has been selected in an arbitrary and discriminatorymanner, in violation of the Constitution and laws of the UnitedStates. Illegal and unconstitutional jury selection procedures castdoubt on the integrity of the whole judicial process. They createthe appearance of bias in the decision of individual cases, and theyincrease the risk of actual bias as well.

"But the exclusion from jury service of a substantial and identifi-able class of citizens has a potential impact that is too subtle andtoo pervasive to admit of confinement to particular issues or particu-lar cases....

"Moreover, we are unwilling to make the assumption that theexclusion of Negroes has relevance only for issues involving race.When any large and identifiable segment of the community is ex-cluded from jury service, the effect is to remove from the jury roomqualities of human nature and varieties of human experience, therange of which is unknown and perhaps unknowable. It is notnecessary to assume that the excluded group will consistently vote asa class in order to conclude, as we do, that its exclusion deprives thejury of a perspective on human events that may have unsuspectedimportance in any case that may be presented." (Footnote omitted.)

Controlled studies of the performance of women as jurors conductedsubsequent to the Court's decision in Ballard have concluded thatwomen bring to juries their own perspectives and values that in-fluence both jury deliberation and result. See generally Rudolph,Women on Juries-Voluntary or Compulsory?, 44 J. Am. Jud. Soc.206 (1961); 55 J. Sociology & Social Research 442 (1971); 3 J.Applied Social Psychology 267 (1973); 19 Sociometry 3 (1956).

39

TAYLOR v. LOUISIANA


In this respect, we agree with the Court in Ballard: Ifthe fair-cross-section rule is to govern the selection ofjuries, as we have concluded it must, women cannot besystematically excluded from jury panels from whichpetit juries are drawn. This conclusion is consistentwith the current judgment of the country, now evidencedby legislative or constitutional provisions in every Stateand at the federal level qualifying women for juryservice."

V

There remains the argument that women as a, classserve a distinctive role in society and that jury servicewould so substantially interfere with that function thatthe State has ample justification for excluding womenfrom service unless they volunteer, even though theresult is that almost all jurors are men. It is true thatHoyt v. Florida, 368 U. S. 57 (1961), held that such asystem 1" did not deny due process of law or equal pro-

13 This is a relatively modern development. Under the Englishcommon law, women, with the exception of the trial of a narrowclass of cases, were not considered to be qualified for jury service byvirtue of the doctrine of propter defectum sexus, a "defect of sex."3 W. Blackstone, Commentaries *362. This common-law rule wasmade statutory by Parliament in 1870, 33 & 34 Vict., c. 77, and thenrejected by Parliament in 1919, 9 & 10 Geo. 5, c. 71. In thiscountry women were disqualified by state law to sit as jurors untilthe end of the 19th century. They were first deemed qualifiedfor jury service by a State in 1898, Utah Rev. Stat. Ann., Tit. 35,§ 1297 (1898). Today, women are qualified as jurors in all theStates. The jury-service statutes and rules of most States donot on their face extend to women the type of exemption presentlybefore the Court, although the exemption provisions of some Statesdo appear to treat men and women differently in certain respects.

14 Florida Stat. 1959, § 40.01 (1), provided that grand and petit ju-rors be taken from male and female citizens of the State possessed ofcertain qualifications and also provided that "the name of no femaleperson shall be taken for jury service unless said person has registered

40

OCTOBER TERM, 1974


tection of the laws because there was a sufficientlyrational basis for such an exemption."5 But Hoyt didnot involve a defendant's Sixth Amendment right to ajury drawn from a fair cross section of the communityand the prospect of depriving him of that right if womenas a class are systematically excluded. The right to aproper jury cannot be overcome on merely rationalgrounds." There must be weightier reasons if a dis-tinctive class representing 53% of the eligible jurors isfor all practical purposes to be excluded from jury service.No such basis has been tendered here.

The States are free to grant exemptions from juryservice to individuals in case of special hardship or inca-pacity and to those engaged in particular occupationsthe uninterrupted performance of which is critical to thecommunity's welfare. Rawlins v. Georgia, 201 U. S.638 (1906). It would not appear that such exemptionswould pose substantial threats that the remaining poolof jurors would not be representative of the community.A system excluding all women, however, is a wholly dif-ferent matter. It is untenable to suggest these daysthat it would be a special hardship for each and everywoman to perform jury service or that society cannot

with the clerk of the circuit court her desire to be placed on thejury list." Hoyt v. Florida, 368 U. S. 57, 58 (1961).

15 The state interest, as articulated by the Court, was based onthe assumption that "woman is still regarded as the center of homeand family life." Hoyt v. Florida, supra, at 62. Louisiana makesa similar argument here, stating that its grant of an automaticexemption from jury service to females involves only the State's at-tempt "to regulate and provide stability to the state's own idea offamily life." Brief for Appellee 12.

16 In Hoyt, the Court determined both that the underlying classi-fication was rational and that the State's proffered rationale forextending this exemption to females without family responsibilitieswas justified by administrative convenience. 368 U. S., at 62-63.

41

TAYLOR v. LOUISIANA


spare any women from their present duties.17 This maybe the case with many, and it may be burdensome tosort out those who should be exempted from thosewho should serve. But that task is performed in thecase of men, and the administrative convenience in deal-ing with women as a class is insufficient justification fordiluting the quality of community judgment representedby the jury in criminal trials.

VIAlthough this judgment may appear a foregone con-

clusion from the pattern of some of the Court's cases overthe past 30 years, as well as from legislative developmentsat both federal and state levels, it is nevertheless truethat until today no case had squarely held that the ex-clusion of women from jury venires deprives a criminal

17 In Hoyt v. Florida, supra, the Court placed some emphasis onthe notion, advanced by the State there and by Louisiana here insupport of the rationality of its statutory scheme, that "woman isstill regarded as the center of home and family life." 368 U. S., at62. Statistics compiled by the Department of Labor indicate that inOctober 1974, 54.2% of all women between 18 and 64 years of agewere in the labor force. United States Dept. of Labor, Women inthe Labor Force (Oct. 1974). Additionally, in March 1974, 45.7%of women with children under the age of 18 were in the labor force;with respect to families containing children between the ages of sixand 17, 67.3% of mothers who were widowed, divorced, or separatedwere in the work force, while 51.2% of the mothers whose husbandswere present in the household were in the work force. Even infamily units in which the husband was present and which containeda child under three years old, 31% of the mothers were in the workforce. United States Dept. of Labor, Marital and Family Character-istics of the Labor Force, Table F (March 1974). While these sta-tistics perhaps speak more to the evolving nature of the structureof the family unit in American society than to the nature of therole played by women who happen to be members of a family unit,they certainly put to rest the suggestion that all women should beexempt from jury service based solely on their sex and the presumedrole in the home.

42

OCTOBER TERM, 1974


defendant of his Sixth Amendment right to trial by animpartial jury drawn from a fair cross section of thecommunity. It is apparent that the first Congress didnot perceive the Sixth Amendment as requiring womenon criminal jury panels; for the direction of the FirstJudiciary Act of 1789 was that federal jurors were to havethe qualifications required by the States in which thefederal court was sitting ' 8 and at the time women weredisqualified under state law in every State. Necessarily,then, federal juries in criminal cases were all male, and itwas not until the Civil Rights Act of 1957, 71 Stat. 638,28 U. S. C. § 1861 (1964 ed.), that Congress itself pro-vided that all citizens, with limited exceptions, were com-petent to sit on federal juries. Until that time, federalcourts were required by statute to exclude women fromjury duty in those States where women were disqualified.Utah was the first State to qualify women for juries; itdid so in 1898, n. 13, supra. Moreover, Hoyt v. Floridawas decided and has stood for the proposition that, evenif women as a group could not be constitutionally dis-qualified from jury service, there was ample reason totreat all women differently from men for the purpose ofjury service and to exclude them unless they volunteered. 9

18 Section 29 of that Act provided that "the jurors shall have the

same qualifications as are requisite for jurors by the laws of theState of which they are citizens, to serve in the highest courts of lawof such State . . . ." 1 Stat. 88.

19 Hoyt v. Florida, as had Fay v. New York, 332 U. S. 261, 289-290(1947), also referred to the historic view that jury service couldconstitutionally be confined to males: "We need not, however, acceptappellant's invitation to canvass in this case the continuing validityof this Court's dictum in Strauder v. West Virginia, 100 U. S. 303,310, to the effect that a State may constitutionally 'confine' juryduty 'to males.' This constitutional proposition has gone unques-tioned for more than eighty years in the decisions of the Court, seeFay v. New York, supra, at 289-290, and had been reflected, until1957, in congressional policy respecting jury service in the federal

43

TAYLOR v. LOUISIANA


Accepting as we do, however, the view that the SixthAmendment affords the defendant in a criminal trial theopportunity to have the jury drawn from venires repre-sentative of the community, we think it is no longer ten-able to hold that women as a class may be excluded orgiven automatic exemptions based solely on sex if theconsequence is that criminal jury venires are almosttotally male. To this extent we cannot follow the con-trary implications of the prior cases, including Hoyt v.Florida. If it was ever the case that women wereunqualified to sit on juries or were so situatedthat none of them should be required to performjury service, that time has long since passed. If atone time it could be held that Sixth Amendment juriesmust be drawn from a fair cross section of the communitybut that this requirement permitted the almost total ex-clusion of women, this is not the case today. Communi-ties differ at different times and places. What is a faircross section at one time or place is not necessarily a faircross section at another time or a different place. Noth-ing persuasive has been presented to us in this case sug-gesting that all-male venires in the parishes involved hereare fairly representative of the local population otherwiseeligible for jury service.

Our holding does not augur or authorize the fashioningof detailed jury-selection codes by federal courts. The

courts themselves." 368 U. S., at 60. (Footnote omitted.) See alsoGlasser v. United States, 315 U. S. .60, 64-65, 85-86 (1942).

It is most interesting to note that Strauder v. West Virginia itselfstated:

"[T]he constitution of juries is a very essential part of the protectionsuch a mode of trial is intended to secure. The very idea of a jury isa body of men composed of the peers or equals of the person whoserights it is selected or summoned to determine; that is, of his neigh-bors, fellows, associates, persons having the same legal status insociety as that which he holds." 100 U. S. 303, 308 (1880).

44

OCTOBER TERM, 1974

REHNQUIST, J., dissenting 419 U. S.

fair-cross-section principle must have much leeway inapplication. The States remain free to prescribe relevantqualifications for their jurors and to provide reasonableexemptions so long as it may be fairly said that the jurylists or panels are representative of the community.Carter v. Jury Comm'n, supra, as did Brown v. Allen,supra; Rawlins v. Georgia, supra, and other cases, recog-nized broad discretion in the States in this respect. Wedo not depart from the principles enunciated in Carter.But, as we have said, Louisiana's special exemption forwomen operates to exclude them from petit juries, whichin our view is contrary to the command of the Sixth andFourteenth Amendments.

It should also be emphasized that in holding that petitjuries must be drawn from a source fairly representativeof the community we impose no requirement that petitjuries actually chosen must mirror the community andreflect the various distinctive groups in the population.Defendants are not entitled to a jury of any particularcomposition, Fay v. New York, 332 U. S. 261, 284 (1947) ;Apodaca v. Oregon, 406 U. S., at 413 (plurality opinion);but the jury wheels, pools of names, panels, or veniresfrom which juries are drawn must not systematicallyexclude distinctive groups in the community and therebyfail to be reasonably representative thereof.

The judgment of the Louisiana Supreme Court is re-versed and the case remanded to that court for furtherproceedings not inconsistent with this opinion.

So ordered.

MR. CHIEF JUSTICE BURGER concurs in the result.

MR. JUSTICE REHNQUIST, dissenting.The Court's opinion reverses a conviction without a

suggestion, much less a showing, that the appellant hasbeen unfairly treated or prejudiced in any way by the

45

7/8/2016 Codes Display Text

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=WAT&division=14.&title=&part=4.&chapter=1.&article= 1/3

41000.

41001.

41002.

41003.

41004.

41005.

41006.

41007.

Code: Select Code Section: Search

Up^ Add To My FavoritesWATER CODE WAT

DIVISION 14. CALIFORNIA WATER STORAGE DISTRICT LAW [39000 48401] ( Division 14 added by Stats. 1951, Ch.391. )

PART 4. ELECTIONS [41000 41905] ( Part 4 added by Stats. 1951, Ch. 391. )

CHAPTER 1. Voters and Qualifications [41000 41020] ( Chapter 1 added by Stats. 1951, Ch. 391. )

Only the holders of title to land are entitled to vote at a general election.

(Added by Stats. 1951, Ch. 391.)

Each voter may vote in each precinct in which any of the land owned by him is situated and may cast onevote for each one hundred dollars ($100), or fraction thereof, worth of his land, exclusive of improvements,minerals, and mineral rights therein, in the precinct.


Each male or female voter over the age of 18 years may vote in person or by proxy.

(Amended by Stats. 1971, Ch. 1748.)

Any guardian, conservator, administrator, or executor, of a person or estate owning land within thedistrict shall be considered the holder of title to land for the purposes of this division, where the owner in fee isnot entitled to vote.

(Amended by Stats. 1979, Ch. 730.)

Any corporation holding title to land within the district is entitled to vote through any officer or agentauthorized in writing under the seal of the corporation.


No person shall vote by proxy unless his authority to cast such vote is evidenced by an instrumentacknowledged and filed with the board of election.


Notwithstanding the provisions of any other section of this division, if a holder of title to land enters into acontract for the sale of the land on deferred installments of the purchase price, the purchaser named in thecontract is entitled to cast onehalf of the vote allotted to such land at any district election if all the following haveoccurred:

(a) The land is separately assessed on the county assessment roll.

(b) A copy of the contract of sale is filed with the secretary at least 30 days prior to the date of the election.

(c) The purchaser is not delinquent for more than six months in the payment of any sums required to be paidunder the contract.

For the purposes of this section, the county assessor shall, at the request of any purchaser, separately assess andseparately list all such lands upon the assessment roll.


At least 20 days prior to any district election, the secretary shall prepare a list for each precinct showing:46

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=WAT&division=14.&title=&part=4.&chapter=1.&article=&op_statues=&op_chapter=&op_section=

http://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?lawCode=WAT&division=14.&title=&part=4.&chapter=1.&article=&goUp=Y



41008.

41009.

41010.

41011.

41012.

41013.

41014.

41015.

41016.

41017.

41018.

(a) The names of the holders of title to land who enter into contracts of sale, as shown by the copies of thecontracts on file in his office.

(b) The name of the purchaser.

(c) A description of the land subject to each contract.


Each precinct list shall be delivered to the election board for the precinct prior to the election.


At least five days prior to each election, the secretary shall notify in writing each holder of title to landnamed as the seller in any contract on file in his office that the contract has been filed.


Any person entitled to vote at a district election may challenge the right of a purchaser to vote inaccordance with the provisions of Section 41006. Challenges shall be made and determined as nearly aspracticable in the manner provided by the Elections Code.


Where property has been conveyed prior to the election and the change of interest does not appear by theassessment roll, the original deed of conveyance or a copy thereof certified by the county recorder, or otherwiseauthenticated, shall be sufficient evidence to entitle the holder thereof to vote the acreage therein described.


Any person not legally qualified to vote who makes any false statement in respect to his right to vote shallincur all of the penalties provided in the Elections Code for persons illegally voting at elections.


The department prior to the formation election, and at all subsequent elections the board, shall prepare,certify, and furnish to the election board at each voting place in the district a copy of each of the assessment rollspertaining to any land in the precinct or, if applicable, the election roll prepared in accordance with Section41027.

(Amended by Stats. 1990, Ch. 1593, Sec. 5. Effective September 30, 1990.)

The department or the board shall likewise prepare and furnish to the election boards lists certified by theregister of the United States Land Office or the State Lands Commission, as the case may be, showing the landentered under the laws of the United States or of the State.


The lists shall contain the names of the persons entitled to possessory rights and the quantity of land heldby each.


The most recent county assessment rolls and lists, or, if applicable, the election roll prepared inaccordance with Section 41027, shall be used by the election boards in determining the qualifications of votersand the number of votes each voter is entitled to cast.

(Amended by Stats. 1990, Ch. 1593, Sec. 6. Effective September 30, 1990.)

Where a tract of land is situated partly within and partly without the boundaries of a precinct and theassessment roll contains a valuation of the tract as a whole, the tract must be apportioned according to thenumber of acres lying within and without the boundaries of the precinct.


If there is included in any assessment roll or list furnished to an election board any land which has no47



41019.

41020.

valuation assigned to it, the department or the board, as the case may be, shall request the county assessor tovalue the land and the county assessor shall prepare and furnish to the department or board requesting it astatement of the value of the land as appraised by him.


The value shall be arrived at as nearly as may be done in the same manner and upon the same basis aswas the valuation for purposes of taxation assessed upon other lands in the precinct similarly situated.


The valuation made by the county assessor shall be furnished to the election board of the precinct inwhich the land is situated and shall be used by the election board in determining the number of votes which theholder of title to the land is entitled to cast.


48

~~11.vrcz.r." +\i 'tr

( ~DEPARTMENT OF HEALTH AND HUMAN SERVICES

'+::::~~~ Public Health Service

Dr. Roberta Krauss Wyde

Mr. Richard S. Wyde

July 15, 2015

Food and Drug Administration Silver Spring, MD 20993

RE: Docket No. FDA-2006-P-0276 (previously 2006P-0126/CP1)

Dear Dr. and Mr. Wyde:

This letter responds to the citizen petition (FDA-2006-P-0276) you submitted to the Food and

Drug Administration (FDA) on March 17, 2006.

I understand that you resolved your dispute with S&M Nu-Tee, L.L.C., 1 and notified the agency,

by e-mail dated April 30, 2006, that you would not be participating further in the FDA

proceeding initiated by your citizen petition, but that you did not agree to withdraw your petition.

Your petition requests that FDA take the following actions:

"1. Initiate a formal investigation of and scientific research concerning the risks of injury or death that can result from ingestion of Greenies by dogs.

2. Due to the underreporting by S&M and by individuals in the general public of harms caused by Greenies, conduct a survey of all veterinarians in the United States about their experiences with harms caused by Greenies to dogs.

3. Depending on the results of such a survey, create an active surveillance system to gather the incidence of Greenie related injuries and deaths.

4. Request S&M to recall all Greenies or order such a recall pending completion of the survey and investigation requested in this petition.

5. Initiate a seizure of all Greenies from retailers and veterinarian offices if S&M will not issue a company recall of the product.

6. Initiate a formal investigation into and research of the color additive included in Greenies.

1 In May 2006, Mars Inc. acquired the Greenies line of products.

1

(b) (6)

(b) (6)

49

7. Publish a notice of this petition in the Federal Register and invite comments from interested persons.

8. Conduct a hearing or hearings under 21 C.F.R. Parts 13, 14, 15 and /or 16, as applicable, at which interested parties can present evidence relevant to the claims in this petition.

9. Require a correction in the Greenies' packaging and labeling to apprise consumers of the risks and dangers to their dogs associated with ingesting Greenies.

10. If the Agency determines that the Greenies formula and manufacturing process can or do create a risk of harm to dogs from their ingestion, order corrections to the formula and/or and (sic) the manufacturing process.

11. Require S&M to change its sales techniques to disclose to veterinarians, distributors and retailers accurate facts about the extent of the risks to dogs from ingesting Greenies.

12. Order disclosure by S&M of, and publish for public consumption, all studies it has conducted related to the potential negative effects on dogs from ingesting Greenies.

13. Initiate an investigation into the thoroughness of the research conducted for the endorsement of Greenies by the Veterinary Oral Health Council ("VOHC"), which is a group of veterinarians that issued a certificate of approval on which the public relies for its decisions to purchase this potentially dangerous product.

14. Order payment of damages to owners of dogs determined to be harmed by Greenies, using some of the $340 million in revenues earned by S&M in 2005 from the sale of Greenies as the basis of a constructive trust for these payments.

15. Fine S&M to the maximum extent permitted under applicable regulations if it is found to have failed to disclose material facts associated with Greenies or violated any regulations or statutes under the jurisdiction of the Commissioner.

16. Based on information obtained pursuant to Petitioners' other requested Agency actions, and if appropriate, pursue applicable remedies and procedures in accordance with 21 C.F.R. pt. 7, subpt. E."

We have considered your petition, and for the reasons explained below, we are denying your

petition under 21 CPR§ 10.30.

We note that your requests generally fall within the following categories: requests for the Agency to investigate the safety of the product (see request## 1, 2, 3, and 6); a request for the Agency to initiate recalls of the product (see request #4); requests for the Agency to order changes to the formulation and labeling of the product, including requiring warnings (see requests## 9, 10, 11, and 12); requests for the Agency to provide for public input on the petition

2

50

(see requests## 7 and 8); a request for the Agency to order damages be paid by the company

(see request# 14); requests for the Agency to initiate various types of enforcement action against the manufacturing firm and/ or the product (see request ## 5, 15, and 16); and a request to

investigate the thoroughness of the research conducted by the Veterinary Oral Health Council (VOHC) for the endorsement of the product (see# 13).

Since the time you filed your petition, the Greenies product line has been acquired by a different firm. The Greenies canine dental chews product was reformulated in September 2006, and the labeling was changed to reflect the new formulation. Consequently, many of the claims and requests for agency action in your petition do not apply to the currently marketed product. As such, FDA does not believe that it would be beneficial to the public health to use the agency's

limited resources to investigate the safety of the old formulation. Insofar that your claims and requests apply to the current formulation, we address them in more detail under the relevant general categories.

The response to your specific claims and requests are addressed under the general categories below.

Category 1: Requests to investigate the safety of the product.

Your petition requests that FDA initiate a formal investigation of Greenies, conduct a survey of all veterinarians in the United States about their experiences with harm caused by Greenies, and

create an active surveillance system to gather the incidence of Greenies-related injuries and deaths. The petition asserts that Greenies "can obstruct a dog's esophagus or intestines" and that "the obstruction creates secondary or subsequent health problems such as inflammatory bowel disease, ulcers, megaesophagitis, and esophagitis, and potentially death." (Petition, page 6)

The product, as formulated at the time of your petition, has not been manufactured for several years and is no longer marketed. FDA has compared the ingredients in the new and old formulations of the canine dental chews and notes that they are markedly different products. 2

According to the firm which acquired the Greenies product line, the formulation was changed to include ingredients selected for "high solubility and digestibility"; the reformulated dental chews were created in different sizes for dogs within respective weight ranges; and the product shape was changed to "encourage thorough chewing."3

Moreover, FDA has reviewed its complaint databases and found a substantial drop in complaints about Greenies products since the beginning of 2007, after the reformulated product went on the

2 This review was completed by the Division of Animal Feeds, Center for Veterinary Medicine and involved a comparison of ingredients listed on a label of the product collected during a February 2006 inspection, and the list of ingredients on the firm's website in June, 2013. 3 See http://vet.greenies.com/assets/pdf/en US/dentalchew soluble digestable.pdf.

3

51

market.4 During 2005 and 2006, the agency received 51 reports of choking, gastrointestinal (GI) obstruction, and GI non-obstruction associated with ingestion of Greenies dental chew type

products in dogs. However, since 2007, the agency has received only 6 complaints regarding Greenies dental chew type products in dogs. Only two of these complaints involved GI

obstructions, both of which were received in 2011. We believe that the difference in the number of safety reports shows a substantial decrease in complaints since the reformulated product was introduced. 5

Because the formulation of Greenies has changed and the number of adverse events reported regarding Greenies has substantially decreased since you filed your petition, we do not believe an investigation into the safety of the currently marketed product is warranted and we deny yom

requests to initiate a formal investigation of Greenies, to conduct a survey of all veterinarians in the United States about their experiences with harms caused by Greenies, and to create an active surveillance system to gather the incidence of Greenie-related injuries and deaths. Your petition also requested that FDA initiate a formal investigation into and research of color additives

included in Greenies. FDA denies this request. The label of the currently marketed product bears an ingredient list that includes sodium copper chlorophyllin. Although sodium copper chlorophyllin is approved for use to color citrus-based dry beverage mixes per 21 CFR § 73 .125( c ), it is not approved for use in animal food. FDA initiates investigations into the use of ingrec!_ients in animal food as resources and priorities permit. FD A's denial of your request is not a determination that the product is in compliance with the Federal Food, Drug, and Cosmetic Act, and should not be taken to mean that FDA has approved the use of the color additive in pet

food products, such as Greenies.

Category 2: Request for the Agency to initiate recalls of the product.

Your petition included a request that the Agency ask the company to recall all Greenies or order such a recall pending completion of a formal investigation. However, because we have denied your requests to conduct an investigation of the safety of Greenies, we do not have a basis upon which we could grant your request that we ask the company to recall or order a recall "pending completion" of such survey and investigation. Furthermore, the fonnulation of the product changed in 2006, and the product that was the subject of your petition is no longer being manufactured and has not been marketed for several years. Therefore, even if FDA thought a recall was appropriate for the previously marketed product, we do not believe there is any

product left to recall.

4 We note that the Greenies product line marketed for dogs now includes Greenies Canine Dental Chews, Greenies Hip & Joint Care Dental Chews, and Greenies Pill Pockets. Our review of our safety database included a search for complaints about Greenies Dental Chew type products (Dental Chews and Hip & Joint Care) in dogs, which are

most comparable to the product marketed prior to reformulation. 5 The agency cautions that a report of injury or illness does not establish causation.

4

52

For these reasons, FDA is denying your request for FDA to ask "S&M to recall all Greenies or

order such a recall pending completion of the survey and investigation requested in this petition."

Category 3: Requests for the Agency to order changes to the formulation and labeling of the product, including requiring warnings.

Your requests for the agency to order changes to the formulation and labeling are moot because, as explained above, Greenies canine dental chews has been reformulated to the extent that the

product that is the subject of your petition is no longer being marketed. Furthermore, FDA has

not determined that the current formula and manufacturing process for Greenies dental chews

create a risk of harm to dogs from their ingestion. Moreover, FDA is not aware of and has no

basis to believe that information or studies regarding adverse negative effects associated with

Greenies are being withheld from the public. Therefore, putting aside other issues raised about

the extent of FD A's authority to require your requested changes, FDA denies these requests.

Category 4: Requests for the Agency to provide for public input on the petition.

Your petition requests that FDA publish this citizen petition in the Federal Register and to hold a

hearing or hearings at which interested paiiies can present evidence relevant to the claims in this petition. FDA denies your request.

In denying this request to publish the petition as a proposal in the Federal Register and to hold

hearings, we considered whether such publication would assist us in responding to the particular

requests in your petition. FDA regulations at 21 CFR § 10.30(h) authorize the Commissioner to use several procedures in reviewing a petition, including the publication of a Federal Register

notice requesting information and views, or the holding of a hearing. These procedures are

discretionary, and in this case we determined that publishing your petition as a proposal in the

Federal Register and/or holding a hearing would not assist us in addressing the issues you

presented in your petition. Because the product that is the subject of your petition is no longer

marketed, FDA has decided not to expend its limited resources on an investigation of the

product. As such, public commentary regarding the the product will not assist FDA in responding to the particular requests in your petition.

FDA notes that the public has the ability to submit comments and other input on a citizen petition through the Division of Dockets Management as part of FD A's citizen petition process. FDA regulations provide that a citizen petition that appears to meet certain specified

requirements will be filed by the Division of Dockets Management, stamped with the date of filing, and assigned a docket number. 21 CFR § 10.30( c ). Your petition was filed by the

Division of Dockets Management on March 17, 2006, and assigned the Docket Number 2006PO 126/CPl. That Docket Number has since been renumbered as FDA-2006-P-0276. FDA

regulations further provide that an interested person may submit written comments to the

Division of Dockets Management on a filed petition, and that those comments will become part of the docket file. 21 CFR § 10.30(d).

5

53

FDA followed its normal procedures for accepting and filing your citizen petition, and has

considered all comments in responding to your petition. This response, which is being sent to

the Division of Dockets Management, will be placed in the docket and it, along with the petition,

all supporting documents, and all comments received on the petition, are part of the administrative record of the decision with respect to this citizen petition.

Category 5: Request for the Agency to order damages be paid by the company.

Your petition requests that FDA "order payment of damages to owners of dogs determined to be

harmed by Greenies, using some of the $340 million in revenues earned by S&M in 2005 from

the sale of Greenies as the basis of a constructive trust for these payments." This request is

denied. Ordering a firm to pay damages to private parties is outside the scope ofFDA's authority.

Category 6: Requests for the Agency to initiate various types of enforcement action against the manufacturing firm and/or the product.

Your petition requests that FDA initiate a variety of enforcement actions against the

manufacturer and the product. As explained above, the Greenies product line was acquired by another firm and has since been reformulated. Thus, the firm and product at issue in your

petition no longer exist, and FDA denies your requests to take enforcement action against them.

First, we deny your request that FDA initiate a seizure of all Greenies from retailers and veterinarian offices if the product is not voluntarily recalled. Although the agency has authority

under the Food, Drug, and Cosmetic Act to initiate enforcement action, including seizures of regulated products (see 21 U.S.C. § 334), such action is discretionary. Moreover, FDA could not

exercise its discretion to initiate a seizure in this case because the agency has not made any

compliance determinations that would justify seizure of the products. In addition, even ifFDA had made a compliance determination, FDA is not aware of the existence of products

manufactured from the old formulation and does not believe there is any relevant product

available to seize.

Second, we deny your remaining requests for enforcement action. 6 You requested that FDA fine the firm to the maximum extent permitted under applicable regulations if it is found to have

failed to disclose material facts associated with Greenies or violated any regulations or statutes under the jurisdiction of the Commissioner. You also requested that FDA pursue applicable remedies and procedures in accordance with 21 C.F.R. pt. 7, subpt. E." Because the product at

issue in your petition is no longer being marketed, FDA has decided not to allocate its limited

resources to conducting a compliance investigation.

6 Because FDA is denying these requests, we do not need to reach the issue of whether any of these remedies would be available or appropriate under the FD&C Act.

6

54

Category 7: Request to investigate the thoroughness of the research conducted by the Veterinary Oral Health Council for the endorsement of the product.

This request raises a number of issues which would need to be thoroughly researched, including

an investigation of which law or laws govern and which government agencies may share

jurisdiction. Because the product that is the subject of your petition is no longer marketed and

because the agency has not identified any safety concerns with the refmmulated product, we

decline to conduct an investigation of the research conducted by VOHC for its endorsement of

Greenies dental chews. Again, we have decided that it would be in the public interest to focus

our limited resources on addressing issues of current or greater public health concern. Therefore, we deny this request.

Conclusion:

For the reasons explained above, we are denying your petition under 21 CFR § 10.30.7 Although we are denying the requests in your petition, we sincerely appreciate your interest in ensuring the

safety of animal food products.

Sincerely,

Bernadette M. Dunham, D.V.M., Ph.D. Director, Center for Veterinary Medicine

7 We also want to take this opportunity to explain why you did not receive any documents in response to your request under the Freedom of Information Act. On October 15, 2008, FDA sent a letter to you inquiring whether you wanted us to continue processing your request, or whether you wanted to withdraw it. The letter stated, "If we do not receive a response from you by [November 15, 2008], we will assume that you no longer have a need for the requested records and that no further processing is necessary." Because you did not respond to this

inquiry, we closed out your FOIA request.

7

55

Constitution of the United States of America (excerpts) Article 3 Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2 (excerpt). [as changed by Amendment 11] The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;— to all Cases affecting Ambassadors, other public Ministers and Consuls;— to all Cases of admiralty and maritime Jurisdiction;— to Controversies to which the United States shall be a Party;— to Controversies between two or more States;— between a State and Citizens of another State,— between Citizens of different States,— between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Article 6 (excerpt) All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

56

Commonwealth of Virginia v. Victor D. Copto-Lavalle

No. M021435 58 Va. Cir. 148 (Jan. 10, 2002)

Circuit Court of Virginia. Penny Azcarate, Esquire, Office of the Commonwealth Attorney, Fairfax Bobby B. Stafford, Esquire, Alexandria

Opinion Klein, J. Dear Counsel:

Defendant Copto-Lavalle seeks to appeal the October 12, 2001 order of the Fairfax General District Court denying his Motion To Set Aside Judgment. He had been convicted of Driving While Under The Influence by the General District Court on August 3, 2001, but no appeal was noted to the underlying conviction. Copto-Lavalle claims that he is entitled to a de novo trial in this court based upon his appeal from the order denying his Motion To Set Aside Judgment. For the reasons set forth in this opinion letter, Defendant is not entitled to any relief in this court.

I. Background Copto-Lavalle was arrested on February 19, 2001, on a charge of Driving While Under The Influence in

violation of section 82-1-6 of the Fairfax County Code. He appeared with his prior attorney before the General District Court on August 3, 2001, and entered a plea of guilty. Pursuant to a plea agreement between the parties, the General District Court imposed its sentence on that date. No appeal was noted to the order of conviction entered on August 3, 2001.

On October 1, 2001, Bobby B. Stafford, present counsel for defendant, filed a Motion To Set Aside Judgment in the General District Court and noticed a hearing on the motion for October 12, 2001. On that date, the Honorable Michael J. Cassidy, who had presided over the original proceedings, denied the motion. Mr. Stafford noted an appeal to the ruling of the General District Court on October 12, 2001, seventy days after the date of the original conviction.

The parties appeared before this court on December 6, 2001. Defendant asserted that he was entitled to a trial de novo on the underlying charge because he had timely noted an appeal to Judge Cassidy's October 12, 2001 ruling denying his motion to set aside the conviction. The Commonwealth responded (1) that this court was without jurisdiction to entertain this appeal because Copto-Lavalle had not appealed his conviction within ten days of August 3, 2001, as required by Va.Code § 16.1-132; and (2) that if Defendant was entitled to be heard in this court, it was solely on the denial of the Motion To Set Aside Judgment, not for a trial de novo on the underlying charge.

II. Analysis

(A) Statutory Scheme Va.Code §§ 16.1-132 and 16.1-136 principally govern appeals of criminal proceedings from a district court to a

circuit court.1 Those sections read as follows. 16.1-132 Right of appeal.-Any person convicted in a district court of an offense not felonious shall have the right, at any time within ten days from such conviction, and whether or not such conviction was upon a plea of guilty, to appeal to the circuit court. There shall also be an appeal of right from any order or judgment of a district court forfeiting any recognizance or revoking any suspension of sentence.

1 Va.Code §§ 16.1-133 (Withdrawal of appeal), 16.1-134 (Appeal by Commonwealth in revenue cases), 16.1-135 (Bail and

recognizance; papers filed with circuit court) and 16.1-137 (Procedure on appeal when warrant defective) also apply to such cases but none of these code sections are implicated here.

57

16.1-136 How appeal tried.-Any appeal taken under the provisions of this chapter shall be heard de novo in the appellate court and shall be tried without formal pleadings in writing; and, except in the case of an appeal from any order or judgment of a court not of record forfeiting any recognizance or revoking any suspension of sentence, the accused shall be entitled to trial by a jury in the same manner as if he had been indicted for the offense in the circuit court.

Defendant concedes that he did not appeal the underlying conviction within the ten-day period set out in Code §

16.1-132. He asserts, however, that he is nonetheless entitled to a trial de novo in this court because (1) it has been the experience of his counsel that trials de novo have been granted to his clients who have appealed denials of motions for a new trial in the district courts; and (2) any other interpretation of the relevant statutes would deprive him of the right to a jury trial afforded to him by the Constitutions of the United States and the Commonwealth of Virginia. The Court disagrees.

Long-settled principles of statutory construction belie any claim that Va.Code §§ 16.1-132 and 136 afford Copto-Lavalle the right to a trial de novo in this court on the underlying charge. “The primary objective of statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395 (1998). When the language of a statute is clear and unambiguous, a court may consider only the words of the statue to determine its meaning. Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 339 (1998). “The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result.” Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26 (1998) (citations omitted). “A statute is not to be construed by singling out a particular phrase; every part is presumed to have some effect and is not to be disregarded unless absolutely necessary. Zamani, 256 Va. at 395 (citations omitted). “[W]hen two statutes seemingly conflict, they should be harmonized, if at all possible, to give effect to both.” Id. (citation omitted). “Thus, when the legislature has used words of a clear and definite meaning, the courts cannot place on them a construction that amounts to holding that the legislature did not intend what it has actually expressed.” Hubbard, 255 Va. at 339 (citation omitted).

There is no constitutional right to a trial de novo in a bifurcated trial court statutory scheme. See City of Seattle v. Hesler, 653 P.2d 631, 636 (Wash.1982) (holding constitutional a statutory scheme which authorized appeals from an inferior to a superior trial court solely on the record). Virginia's appellate courts have repeatedly stated that Va.Code §§ 16.1-132, et seq. afford a defendant a statutory right of appeal that is in effect a statutory grant of a new trial. See Buck v. City of Danville, 213 Va. 387, 388 (1972); Gaskill v. Commonwealth, 206 Va. 486, 490 (1965); Allen v. Commonwealth, 36 Va.App. 334, 341 (2001); Hill v. Middlesex County, 12 Va.App. 58, 59 (1991); Duck v. Commonwealth, 8 Va.App. 567, 572-73 (1989).

The plain and unambiguous language of Code § 16.1-132 sets forth the three determinations of a district court in a criminal case from which a defendant may exercise the statutory right to a de novo hearing in the circuit court: (1) conviction of an offense which is not a felony; (2) entry of an order or judgment forfeiting a recognizance; and (3) entry of an order or judgment revoking any suspension of sentence.2 Va.Code § 16.1-132. Nowhere in this statute does the General Assembly grant a defendant a statutory right to appeal an adverse ruling on a Motion To Set Aside Judgment. Nor does Code § 16.1-133.1, the statute that granted Copto-Lavalle sixty days to file his motion in the district court, contain any language authorizing an appeal from an adverse ruling.

In Ragan v. Woodcroft Village Apartments, 255 Va. 322 (1998), the Supreme Court decided the analytically identical issue of whether a litigant in a civil case in the general district court has the right to appeal the denial of a motion for new trial to the circuit court. Va.Code § 16.1-106, the civil case equivalent to Code § 16.1-132, reads in pertinent part as follows:

From any order entered or judgment rendered in a court not of record in a civil case ... there shall be an appeal of right, if taken within ten days after such order or judgment, to a court of record.

2 Va.Code § 19.2-124 affords a defendant an additional statutory right to appeal an adverse decision relating to the defendant's bail.

58

The Supreme Court interpreted this statute to authorize appeals from final orders or judgments only, reasoning as follows:

Ragan's argument would require us to interpret the phrase “any order entered or judgment rendered” as allowing an appeal from any order whatsoever. Such an interpretation would allow the appeal of countless interlocutory matters, including orders granting continuances, orders setting trial dates, orders determining venue, and orders providing for bills of particulars or the production of documents. Manifestly, the legislature did not intend such a result.

Ragan, 255 Va. at 327-28 (emphasis in original). Hence, the Court held that the circuit court was without jurisdiction to hear the appeal and ordered that the general district court's order denying the motion for a new trial be reinstated. Id. at 328.

The Supreme Court's analysis in Ragan is equally applicable here. The statutory right to appeal a ruling of a general district court in a criminal case is limited pursuant to Code § 16.1-132 in the same manner as the statutory right to appeal in a civil case is limited by Code § 16.1-106. As such, Copto-Lavalle had no right to appeal Judge Cassidy's denial of his Motion To Set Aside Judgment.

Copto-Lavalle argues that he is still entitled to a trial de novo in this court because the filing of his post-trial motion in the district court extended the time for him to appeal the court's original verdict and sentence until ten days after the denial of his motion. Copto-Lavalle is mistaken. Va.Code § 16.1-132 is clear and unambiguous. The Court must therefore look only to the words of the statute to interpret it. Harrison & Bates, Inc. v. Featherstone Assocs., 253 Va. 364, 368 (1997). That code section affords a statutory right to appeal “within ten days from such conviction.” Va.Code § 16.1-132. Conviction has a clear and definite meaning. Black's Law Dictionary defines conviction as “the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged.” BLACK'S LAW DICTIONARY 333 (6th ed.1990). The judgment and sentence in the General District Court were rendered on August 3, 2001. No appeal was noted until October 12, 2001, more than ten days after the judgment and sentence. This Court declines to interpret § 16.1-132 in a manner “that amounts to holding that the legislature did not intend what it actually has expressed.” Hubbard, 255 Va. at 339. Therefore, no appeal was filed in a timely manner pursuant to the controlling statutory scheme.

(B) Constitutional Right To Jury Trial

Copto-Lavalle next argues that the Court's interpretation of the relevant statutory scheme would violate his right to a jury trial under both the Federal and Virginia State Constitutions. Copto-Lavalle is again mistaken. In Manns v. Commonwealth, 213 Va. 322 (1972), the Virginia Supreme Court held that “[t]he Sixth Amendment guarantee of a jury trial ... is adequately satisfied by the appeal of right and trial de novo procedure provided under Virginia law.” Id. at 324; see also Ludwig v. Massachusetts, 427 U.S. 618 (1976). Further, the Virginia Constitution explicitly authorizes the enactment of laws “providing for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction.” VA. CONST. Art. I, § 8. The wisdom of the legislature in enacting Virginia's de novo appeal scheme was recognized by the Virginia Supreme Court in Saunders v. Reynolds, 214 Va. 697 (1974), when it opined as follows:

The courts not of record are instituted to handle with the greatest possible dispatch the numerous misdemeanors which constitute the bulk of criminal cases occurring in this state. To serve the state's objective of expeditious disposition of cases, trial by jury is not provided in courts not of record. However, to protect the misdemeanant's right to trial by jury, he is specifically granted an automatic appeal from a court not of record and a trial de novo in a court of record, where a jury trial is available to him. See Manns v. Commonwealth, 213 Va. 322, 324 (1972).

Saunders, 214 Va. at 703-04. Virginia's statutory scheme contains no unreasonable restrictions on the right to a jury trial. See Gaskill v. Commonwealth, 206 Va. 486, 491 (1965); Hill v. Middlesex County, 12 Va.App. 58, 59-60 (1991). All one must do to be afforded the constitutional right to a jury trial is to note an appeal within ten days of

59

the conviction in the district court. See Va.Code § 16.1-132. As Copto-Lavalle failed to comply with the clear language of this statute, he cannot be heard to claim that his constitutional rights have been abrogated.

I. Conclusion As Copto-Lavalle did not timely invoke his “statutory right to a new trial,” this court is without jurisdiction to

entertain his appeal. See Ragan, 255 Va. at 328. Accordingly, this appeal is dismissed for lack of jurisdiction. Enclosed is a copy of the order entered this date, dismissing the appeal. The defendant's exception is noted for each of the reasons ably articulated by his counsel.3

3 At the hearing, counsel for Copto-Lavalle expressed a desire to create a complete record so that he could properly advise his client of his rights concerning a potential appeal to the Virginia Court of Appeals. As a result, the Court allowed counsel to present the merits of the Motion To Set Aside Judgment that had been argued in the District Court. Mr. Stafford contended that his client had a viable defense to the underlying charge because he was asleep in the passenger side of the front seat of his car at the time that the police officer confronted him. According to Mr. Stafford's argument, the defendant contended that someone else had driven the motor vehicle to that place. He conceded, however, that the keys to the automobile were then in the ignition and that Copto-Lavalle was the only occupant of the car when the police arrived. Pursuant to Va.Code § 16.1-133.1, any conviction of a non-felonious offense in a district court may be reopened within sixty days of the conviction “upon the application of such person and for good cause shown.” (emphasis supplied). Copto-Lavalle was represented by an experienced defense attorney at the time that he entered his plea of guilty and was sentenced. Therefore, even if this court had jurisdiction to entertain the motion, it would find that Copto-Lavalle had failed to meet his burden to establish good cause to set aside his conviction and grant him a new trial.

60

1 (Slip Opinion) OCTOBER TERM, 2015

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WILLIAMS v. PENNSYLVANIA

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA

No. 15–5040. Argued February 29, 2016—Decided June 9, 2016

Petitioner Williams was convicted of the 1984 murder of Amos Norwood and sentenced to death. During the trial, the then-district attorneyof Philadelphia, Ronald Castille, approved the trial prosecutor’s re-quest to seek the death penalty against Williams. Over the next 26 years, Williams’s conviction and sentence were upheld on direct ap-peal, state postconviction review, and federal habeas review. In 2012, Williams filed a successive petition pursuant to Pennsylvania’sPost Conviction Relief Act (PCRA), arguing that the prosecutor had obtained false testimony from his codefendant and suppressed mate-rial, exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83. Finding that the trial prosecutor had committed Brady vio-lations, the PCRA court stayed Williams’s execution and ordered a new sentencing hearing. The Commonwealth asked the Pennsylva-nia Supreme Court, whose chief justice was former District Attorney Castille, to vacate the stay. Williams filed a response, along with amotion asking Chief Justice Castille to recuse himself or, if he de-clined to do so, to refer the motion to the full court for decision. Without explanation, the chief justice denied Williams’s motion forrecusal and the request for its referral. He then joined the State Su-preme Court opinion vacating the PCRA court’s grant of penalty-phase relief and reinstating Williams’s death sentence. Two weeks later, Chief Justice Castille retired from the bench.

Held: 1. Chief Justice Castille’s denial of the recusal motion and his sub-

sequent judicial participation violated the Due Process Clause of theFourteenth Amendment. Pp. 5–12.

(a) The Court’s due process precedents do not set forth a specifictest governing recusal when a judge had prior involvement in a case as a prosecutor; but the principles on which these precedents rest dic-

61

2 WILLIAMS v. PENNSYLVANIA

Syllabus

tate the rule that must control in the circumstances here: Under the Due Process Clause there is an impermissible risk of actual biaswhen a judge earlier had significant, personal involvement as a pros-ecutor in a critical decision regarding the defendant’s case. The Court applies an objective standard that requires recusal when the likelihood of bias on the part of the judge “is too high to be constitu-tionally tolerable.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872. A constitutionally intolerable probability of bias exists when thesame person serves as both accuser and adjudicator in a case. See In re Murchison, 349 U. S. 133, 136–137. No attorney is more integral to the accusatory process than a prosecutor who participates in a ma-jor adversary decision. As a result, a serious question arises as towhether a judge who has served as an advocate for the State in thevery case the court is now asked to adjudicate would be influenced byan improper, if inadvertent, motive to validate and preserve the re-sult obtained through the adversary process. In these circumstances, neither the involvement of multiple actors in the case nor the passage of time relieves the former prosecutor of the duty to withdraw in or-der to ensure the neutrality of the judicial process in determining the consequences his or her own earlier, critical decision may have set inmotion. Pp. 5–8.

(b) Because Chief Justice Castille’s authorization to seek thedeath penalty against Williams amounts to significant, personal in-volvement in a critical trial decision, his failure to recuse from Wil-liams’s case presented an unconstitutional risk of bias. The decision to pursue the death penalty is a critical choice in the adversary pro-cess, and Chief Justice Castille had a significant role in this decision.Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. Given the importance of this decision and the profound consequences it car-ries, a responsible prosecutor would deem it to be a most significantexercise of his or her official discretion. The fact that many jurisdic-tions, including Pennsylvania, have statutes and professional codes ofconduct that already require recusal under the circumstances of thiscase suggests that today’s decision will not occasion a significantchange in recusal practice. Pp. 9–12.

2. An unconstitutional failure to recuse constitutes structural error that is “not amenable” to harmless-error review, regardless of wheth-er the judge’s vote was dispositive, Puckett v. United States, 556 U. S. 129, 141. Because an appellate panel’s deliberations are generallyconfidential, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to ensure that jurists can reexamine old

62

3 Cite as: 579 U. S. ____ (2016)

Syllabus

ideas and suggest new ones, while both seeking to persuade and be-ing open to persuasion by their colleagues. It does not matter wheth-er the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositivemay mean only that the judge was successful in persuading mostmembers of the court to accept his or her position—an outcome that does not lessen the unfairness to the affected party. A multimember court must not have its guarantee of neutrality undermined, for theappearance of bias demeans the reputation and integrity not just ofone jurist, but of the larger institution of which he or she is a part. Because Chief Justice Castille’s participation in Williams’s case wasan error that affected the State Supreme Court’s whole adjudicatoryframework below, Williams must be granted an opportunity to pre-sent his claims to a court unburdened by any “possible temptation . . . not to hold the balance nice, clear and true between the State and the accused,” Tumey v. Ohio, 273 U. S. 510, 532. Pp. 12–14.

__ Pa. __, 105 A. 3d 1234, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. THOMAS, J., filed a dis-senting opinion.

63

_________________

_________________

1 Cite as: 579 U. S. ____ (2016)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 15–5040

TERRANCE WILLIAMS, PETITIONER v. PENNSYLVANIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT

[June 9, 2016]

JUSTICE KENNEDY delivered the opinion of the Court. In this case, the Supreme Court of Pennsylvania vacated

the decision of a postconviction court, which had grantedrelief to a prisoner convicted of first-degree murder and sentenced to death. One of the justices on the State Su-preme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case. The justice in question denied the prisoner’s motionfor recusal and participated in the decision to deny relief. The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participa-tion violated the Due Process Clause of the Fourteenth Amendment.

This Court’s precedents set forth an objective standardthat requires recusal when the likelihood of bias on the part of the judge “ ‘is too high to be constitutionally tolera-ble.’ ” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U. S. 35, 47 (1975)). Applying this standard, the Court concludes thatdue process compelled the justice’s recusal.

64



I Petitioner is Terrance Williams. In 1984, soon after

Williams turned 18, he murdered 56-year-old Amos Nor-wood in Philadelphia. At trial, the Commonwealth pre-sented evidence that Williams and a friend, Marc Draper, had been standing on a street corner when Norwood drove by. Williams and Draper requested a ride home from Norwood, who agreed. Draper then gave Norwood falsedirections that led him to drive toward a cemetery. Wil-liams and Draper ordered Norwood out of the car and into the cemetery. There, the two men tied Norwood in his own clothes and beat him to death. Testifying for theCommonwealth, Draper suggested that robbery was themotive for the crime. Williams took the stand in his own defense, stating that he was not involved in the crime and did not know the victim.

During the trial, the prosecutor requested permission from her supervisors in the district attorney’s office toseek the death penalty against Williams. To support the request, she prepared a memorandum setting forth the details of the crime, information supporting two statutoryaggravating factors, and facts in mitigation. After review-ing the memorandum, the then-district attorney of Phila-delphia, Ronald Castille, wrote this note at the bottom ofthe document: “Approved to proceed on the death penalty.”App. 426a.

During the penalty phase of the trial, the prosecutorargued that Williams deserved a death sentence because he killed Norwood “ ‘for no other reason but that a kind man offered him a ride home.’ ” Brief for Petitioner 7. The jurors found two aggravating circumstances: that the murder was committed during the course of a robbery andthat Williams had a significant history of violent felonyconvictions. That criminal history included a previous conviction for a murder he had committed at age 17. The jury found no mitigating circumstances and sentenced

65

3 Cite as: 579 U. S. ____ (2016)


Williams to death. Over a period of 26 years, Williams’sconviction and sentence were upheld on direct appeal,state postconviction review, and federal habeas review.

In 2012, Williams filed a successive petition pursuant toPennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa.Cons. Stat. §9541 et seq. (2007). The petition was based on new information from Draper, who until then had refused to speak with Williams’s attorneys. Draper told Wil-liams’s counsel that he had informed the Commonwealth before trial that Williams had been in a sexual relation-ship with Norwood and that the relationship was the real motive for Norwood’s murder. According to Draper, the Commonwealth had instructed him to give false testimony that Williams killed Norwood to rob him. Draper alsoadmitted he had received an undisclosed benefit in ex-change for his testimony: the trial prosecutor had prom-ised to write a letter to the state parole board on his be-half. At trial, the prosecutor had elicited testimony from Draper indicating that his only agreement with the prose-cution was to plead guilty in exchange for truthful testi-mony. No mention was made of the additional promise towrite the parole board.

The Philadelphia Court of Common Pleas, identified inthe proceedings below as the PCRA court, held an eviden-tiary hearing on Williams’s claims. Williams alleged in his petition that the prosecutor had procured false testi-mony from Draper and suppressed evidence regarding Norwood’s sexual relationship with Williams. At the hearing, both Draper and the trial prosecutor testified regarding these allegations. The PCRA court ordered the district attorney’s office to produce the previously undis-closed files of the prosecutor and police. These documents included the trial prosecutor’s sentencing memorandum,bearing then-District Attorney Castille’s authorization to pursue the death penalty. Based on the Commonwealth’s files and the evidentiary hearing, the PCRA court found

66



that the trial prosecutor had suppressed material, excul-patory evidence in violation of Brady v. Maryland, 373 U. S. 83 (1963), and engaged in “prosecutorial gamesman-ship.” App. 168a. The court stayed Williams’s execution and ordered a new sentencing hearing.

Seeking to vacate the stay of execution, the Common-wealth submitted an emergency application to the Penn-sylvania Supreme Court. By this time, almost three dec-ades had passed since Williams’s prosecution. Castille had been elected to a seat on the State Supreme Court and was serving as its chief justice. Williams filed a response to the Commonwealth’s application. The disclosure of the trial prosecutor’s sentencing memorandum in the PCRAproceedings had alerted Williams to Chief Justice Cas-tille’s involvement in the decision to seek a death sentence in his case. For this reason, Williams also filed a motion asking Chief Justice Castille to recuse himself or, if he declined to do so, to refer the recusal motion to the full court for decision. The Commonwealth opposed Williams’s recusal motion. Without explanation, Chief Justice Cas-tille denied the motion for recusal and the request for itsreferral. Two days later, the Pennsylvania Supreme Courtdenied the application to vacate the stay and ordered fullbriefing on the issues raised in the appeal. The State Supreme Court then vacated the PCRA court’s order granting penalty-phase relief and reinstated Williams’sdeath sentence. Chief Justice Castille and Justices Baer and Stevens joined the majority opinion written by JusticeEakin. Justices Saylor and Todd concurred in the resultwithout issuing a separate opinion. See ___ Pa. ___, ___, 105 A. 3d 1234, 1245 (2014).

Chief Justice Castille authored a concurrence. He la-mented that the PCRA court had “lost sight of its role as aneutral judicial officer” and had stayed Williams’s execu-tion “for no valid reason.” Id., at ___, 105 A. 3d, at 1245. “[B]efore condemning officers of the court,” the chief jus-

67

5 Cite as: 579 U. S. ____ (2016)


tice stated, “the tribunal should be aware of the substan-tive status of Brady law,” which he believed the PCRA court had misapplied. Id., at ___, 105 A. 3d, at 1246. In addition, Chief Justice Castille denounced what he per-ceived as the “obstructionist anti-death penalty agenda” ofWilliams’s attorneys from the Federal Community De-fender Office. Ibid. PCRA courts “throughout Pennsylva-nia need to be vigilant and circumspect when it comes to the activities of this particular advocacy group,” he wrote,lest Defender Office lawyers turn postconviction proceed-ings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” Id., at ___, 105 A. 3d, at 1247.

Two weeks after the Pennsylvania Supreme Court decided Williams’s case, Chief Justice Castille retired from the bench. This Court granted Williams’s petition for certiorari. 576 U. S. ___ (2015).

II A

Williams contends that Chief Justice Castille’s decision as district attorney to seek a death sentence against himbarred the chief justice from later adjudicating Williams’s petition to overturn that sentence. Chief Justice Castille, Williams argues, violated the Due Process Clause of theFourteenth Amendment by acting as both accuser andjudge in his case.

The Court’s due process precedents do not set forth a specific test governing recusal when, as here, a judge hadprior involvement in a case as a prosecutor. For the rea-sons explained below, however, the principles on which these precedents rest dictate the rule that must control inthe circumstances here. The Court now holds that under the Due Process Clause there is an impermissible risk ofactual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regard-

68



ing the defendant’s case. Due process guarantees “an absence of actual bias” on

the part of a judge. In re Murchison, 349 U. S. 133, 136 (1955). Bias is easy to attribute to others and difficult todiscern in oneself. To establish an enforceable and work- able framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to deter-mine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Caper-ton, 556 U. S., at 881. Of particular relevance to the in-stant case, the Court has determined that an unconstitu-tional potential for bias exists when the same personserves as both accuser and adjudicator in a case. See Murchison, 349 U. S., at 136–137. This objective risk ofbias is reflected in the due process maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Id., at 136.

The due process guarantee that “no man can be a judgein his own case” would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical deci-sion. This conclusion follows from the Court’s analysis in In re Murchison. That case involved a “one-man judge-grand jury” proceeding, conducted pursuant to state law, in which the judge called witnesses to testify about sus-pected crimes. Id., at 134. During the course of the exam-inations, the judge became convinced that two witnesseswere obstructing the proceeding. He charged one witnesswith perjury and then, a few weeks later, tried and con-victed him in open court. The judge charged the other witness with contempt and, a few days later, tried andconvicted him as well. This Court overturned the convic-

69

7 Cite as: 579 U. S. ____ (2016)


tions on the ground that the judge’s dual position as ac-cuser and decisionmaker in the contempt trials violateddue process: “Having been a part of [the accusatory] pro-cess a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those ac-cused.” Id., at 137.

No attorney is more integral to the accusatory processthan a prosecutor who participates in a major adversary decision. When a judge has served as an advocate for theState in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, evenwith the most diligent effort, could set aside any personalinterest in the outcome. There is, furthermore, a risk that the judge “would be so psychologically wedded” to his orher previous position as a prosecutor that the judge “would consciously or unconsciously avoid the appearance of having erred or changed position.” Withrow, 421 U. S., at 57. In addition, the judge’s “own personal knowledge and impression” of the case, acquired through his or her role in the prosecution, may carry far more weight withthe judge than the parties’ arguments to the court. Mur-chison, supra, at 138; see also Caperton, supra, at 881.

Pennsylvania argues that Murchison does not lead to the rule that due process requires disqualification of ajudge who, in an earlier role as a prosecutor, had signifi-cant involvement in making a critical decision in the case. The facts of Murchison, it should be acknowledged, differ in many respects from a case like this one. In Murchison, over the course of several weeks, a single official (the so-called judge-grand jury) conducted an investigation into suspected crimes; made the decision to charge witnesses for obstruction of that investigation; heard evidence on thecharges he had lodged; issued judgments of conviction; and imposed sentence. See 349 U. S., at 135 (petitioners ob-jected to “trial before the judge who was at the same time the complainant, indicter and prosecutor”). By contrast, a

70



judge who had an earlier involvement in a prosecution might have been just one of several prosecutors working on the case at each stage of the proceedings; the prosecu-tor’s immediate role might have been limited to a particu-lar aspect of the prosecution; and decades might havepassed before the former prosecutor, now a judge, is called upon to adjudicate a claim in the case.

These factual differences notwithstanding, the constitu-tional principles explained in Murchison are fully applica-ble where a judge had a direct, personal role in the de-fendant’s prosecution. The involvement of other actors and the passage of time are consequences of a complex criminal justice system, in which a single case may belitigated through multiple proceedings taking place over a period of years. This context only heightens the need for objective rules preventing the operation of bias that oth-erwise might be obscured. Within a large, impersonalsystem, an individual prosecutor might still have an influ-ence that, while not so visible as the one-man grand jury in Murchison, is nevertheless significant. A prosecutormay bear responsibility for any number of critical deci-sions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if dec-ades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects andcontinuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motiveto validate and preserve the result obtained through the adversary process. The involvement of multiple actorsand the passage of time do not relieve the former prosecu-tor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.

71

9 Cite as: 579 U. S. ____ (2016)


B This leads to the question whether Chief Justice Cas-

tille’s authorization to seek the death penalty against Williams amounts to significant, personal involvement ina critical trial decision. The Court now concludes that it was a significant, personal involvement; and, as a result,Chief Justice Castille’s failure to recuse from Williams’s case presented an unconstitutional risk of bias.

As an initial matter, there can be no doubt that the decision to pursue the death penalty is a critical choice in the adversary process. Indeed, after a defendant is charged with a death-eligible crime, whether to ask a juryto end the defendant’s life is one of the most serious dis-cretionary decisions a prosecutor can be called upon to make.

Nor is there any doubt that Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. The importance of this decision and the profound consequencesit carries make it evident that a responsible prosecutor would deem it to be a most significant exercise of his orher official discretion and professional judgment.

Pennsylvania nonetheless contends that Chief JusticeCastille in fact did not have significant involvement in the decision to seek a death sentence against Williams. The chief justice, the Commonwealth points out, was the headof a large district attorney’s office in a city that saw many capital murder trials. Tr. of Oral Arg. 36. According toPennsylvania, his approval of the trial prosecutor’s re-quest to pursue capital punishment in Williams’s caseamounted to a brief administrative act limited to “the time it takes to read a one-and-a-half-page memo.” Ibid. In this Court’s view, that characterization cannot be credited. The Court will not assume that then-District AttorneyCastille treated so major a decision as a perfunctory task

72



requiring little time, judgment, or reflection on his part. Chief Justice Castille’s own comments while running for

judicial office refute the Commonwealth’s claim that heplayed a mere ministerial role in capital sentencing deci-sions. During the chief justice’s election campaign, multi-ple news outlets reported his statement that he “sent 45people to death rows” as district attorney. Seelye, Castille Keeps His Cool in Court Run, Philadelphia Inquirer, Apr.30, 1993, p. B1; see also, e.g., Brennan, State Voters Must Choose Next Supreme Court Member, Legal Intelligencer,Oct. 28, 1993, pp. 1, 12. Chief Justice Castille’s willing-ness to take personal responsibility for the death sentencesobtained during his tenure as district attorney indicatethat, in his own view, he played a meaningful role in those sentencing decisions and considered his involvement to bean important duty of his office.

Although not necessary to the disposition of this case, the PCRA court’s ruling underscores the risk of permitting a former prosecutor to be a judge in what had been his or her own case. The PCRA court determined that the trial prosecutor—Chief Justice Castille’s former subordinate inthe district attorney’s office—had engaged in multiple,intentional Brady violations during Williams’s prosecu-tion. App. 131–145, 150–154. While there is no indication that Chief Justice Castille was aware of the alleged prose-cutorial misconduct, it would be difficult for a judge in his position not to view the PCRA court’s findings as a criti-cism of his former office and, to some extent, of his own leadership and supervision as district attorney.

The potential conflict of interest posed by the PCRAcourt’s findings illustrates the utility of statutes and professional codes of conduct that “provide more protection than due process requires.” Caperton, 556 U. S., at 890. It is important to note that due process “demarks only theouter boundaries of judicial disqualifications.” Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 828 (1986). Most ques-

73

11 Cite as: 579 U. S. ____ (2016)


tions of recusal are addressed by more stringent and detailed ethical rules, which in many jurisdictions alreadyrequire disqualification under the circumstances of this case. See Brief for American Bar Association as Amicus Curiae 5, 11–14; see also ABA Model Code of Judicial Conduct Rules 2.11(A)(1), (A)(6)(b) (2011) (no judge may participate “in any proceeding in which the judge’s impar-tiality might reasonably be questioned,” including where the judge “served in governmental employment, and in such capacity participated personally and substantially asa lawyer or public official concerning the proceeding”); ABA Center for Professional Responsibility Policy Imple-mentation Comm., Comparison of ABA Model JudicialCode and State Variations (Dec. 14, 2015), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2_11.authcheckdam.pdf (as lastvisited June 7, 2016) (28 States have adopted language similar to ABA Model Judicial Code Rule 2.11); 28 U. S. C. §455(b)(3) (recusal required where judge “has served ingovernmental employment and in such capacity partici-pated as counsel, adviser or material witness concerningthe proceeding”). At the time Williams filed his recusal motion with the Pennsylvania Supreme Court, for exam-ple, Pennsylvania’s Code of Judicial Conduct disqualifiedjudges from any proceeding in which “they served as alawyer in the matter in controversy, or a lawyer withwhom they previously practiced law served during suchassociation as a lawyer concerning the matter. . . .” Pa. Code of Judicial Conduct, Canon 3C (1974, as amended).The fact that most jurisdictions have these rules in place suggests that today’s decision will not occasion a signifi-cant change in recusal practice.

Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias. This risk so endangeredthe appearance of neutrality that his participation in the

74

http://www.americanbar.org/content/dam/aba/administrative



case “must be forbidden if the guarantee of due process isto be adequately implemented.” Withrow, 421 U. S., at 47.

III Having determined that Chief Justice Castille’s partici-

pation violated due process, the Court must resolve whether Williams is entitled to relief. In past cases, theCourt has not had to decide the question whether a due process violation arising from a jurist’s failure to recuseamounts to harmless error if the jurist is on a multimem-ber court and the jurist’s vote was not decisive. See La-voie, supra, at 827–828 (addressing “the question whether a decision of a multimember tribunal must be vacated because of the participation of one member who had an interest in the outcome of the case,” where that member’s vote was outcome determinative). For the reasons dis-cussed below, the Court holds that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.

The Court has little trouble concluding that a due pro-cess violation arising from the participation of an inter-ested judge is a defect “not amenable” to harmless-error review, regardless of whether the judge’s vote was disposi-tive. Puckett v. United States, 556 U. S. 129, 141 (2009) (emphasis deleted). The deliberations of an appellatepanel, as a general rule, are confidential. As a result, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to assure juriststhat they can reexamine old ideas and suggest new ones,while both seeking to persuade and being open to persua-sion by their colleagues. As Justice Brennan wrote in his Lavoie concurrence,

“The description of an opinion as being ‘for the court’ connotes more than merely that the opinion has been

75

13 Cite as: 579 U. S. ____ (2016)


joined by a majority of the participating judges. It re-flects the fact that these judges have exchanged ideas and arguments in deciding the case. It reflects the collective process of deliberation which shapes the court’s perceptions of which issues must be addressed and, more importantly, how they must be addressed. And, while the influence of any single participant inthis process can never be measured with precision, experience teaches us that each member’s involve-ment plays a part in shaping the court’s ultimate dis-position.” 475 U. S., at 831.

These considerations illustrate, moreover, that it does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean onlythat the judge was successful in persuading most members of the court to accept his or her position. That outcome does not lessen the unfairness to the affected party. See id., at 831–832 (Blackmun, J., concurring in judgment).

A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de-means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicialprocess, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the publiclegitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on thepart of a judge rises to an unconstitutional level, the fail-ure to recuse cannot be deemed harmless.

The Commonwealth points out that ordering a rehear-ing before the Pennsylvania Supreme Court may not provide complete relief to Williams because judges who

76



were exposed to a disqualified judge may still be influ-enced by their colleague’s views when they rehear the case. Brief for Respondent 51, 62. An inability to guaran-tee complete relief for a constitutional violation, however,does not justify withholding a remedy altogether. Allow-ing an appellate panel to reconsider a case without the participation of the interested member will permit judgesto probe lines of analysis or engage in discussions they may have felt constrained to avoid in their firstdeliberations.

Chief Justice Castille’s participation in Williams’s casewas an error that affected the State Supreme Court’swhole adjudicatory framework below. Williams must be granted an opportunity to present his claims to a court unburdened by any “possible temptation . . . not to hold the balance nice, clear and true between the State and the accused.” Tumey v. Ohio, 273 U. S. 510, 532 (1927).

* * * Where a judge has had an earlier significant, personal

involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicialproceeding rises to an unconstitutional level. Due processentitles Terrance Williams to “a proceeding in which he may present his case with assurance” that no member of the court is “predisposed to find against him.” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980).

The judgment of the Supreme Court of Pennsylvania isvacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

77

Constitution of the United States of America (excerpt) Article 2 Section 1 (excerpt). The executive Power shall be vested in a President of the United States of America. . . . Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

78

7/8/2016 U.S. Department of Labor - OFCCP - Executive Order 11246, As Amended

https://www.dol.gov/ofccp/regs/statutes/eo11246.htm 1/7

United States Department of LaborOffice of Federal Contract Compliance ProgramsOffice of Federal Contract Compliance Programs (OFCCP)

Executive Order 11246, As Amended

— DISCLAIMER —

Executive Order 11246 — Equal Employment Opportunity

SOURCE: The provisions of Executive Order 11246 of Sept. 24, 1965, appear at 30 FR 12319, 12935, 3 CFR, 19641965Comp., p.339, unless otherwise noted.

Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes ofthe United States, it is ordered as follows:

Part I — Nondiscrimination in Government Employment

[Part I superseded by EO 11478 of Aug. 8, 1969, 34 FR 12985, 3 CFR, 19661970 Comp., p. 803]

Part II Nondiscrimination in Employment by Government Contractors and Subcontractors

Subpart A Duties of the Secretary of Labor

SEC. 201.The Secretary of Labor shall be responsible for the administration and enforcement of Parts II and III of thisOrder. The Secretary shall adopt such rules and regulations and issue such orders as are deemed necessary andappropriate to achieve the purposes of Parts II and III of this Order.

[Sec. 201 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, l978 Comp., p. 230]

Subpart B Contractors' Agreements

SEC. 202. Except in contracts exempted in accordance with Section 204 of this Order, all Government contractingagencies shall include in every Government contract hereafter entered into the following provisions:

During the performance of this contract, the contractor agrees as follows:

1. The contractor will not discriminate against any employee or applicant for employment because of race, color,religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action toensure that applicants are employed, and that employees are treated during employment, without regard totheir race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include,but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitmentadvertising; layoff or termination; rates of pay or other forms of compensation; and selection for training,including apprenticeship. The contractor agrees to post in conspicuous places, available to employees andapplicants for employment, notices to be provided by the contracting officer setting forth the provisions of thisnondiscrimination clause.

2. The contractor will, in all solicitations or advancements for employees placed by or on behalf of the contractor,state that all qualified applicants will receive consideration for employment without regard to race, color,religion, sex, sexual orientation, gender identity, or national origin.

3. The contractor will not discharge or in any other manner discriminate against any employee or applicant foremployment because such employee or applicant has inquired about, discussed, or disclosed the compensationof the employee or applicant or another employee or applicant. This provision shall not apply to instances inwhich an employee who has access to the compensation information of other employees or applicants as a part

79

https://www.dol.gov/

https://www.dol.gov/dol/disclaim.htm#statutory



of such employee’s essential job functions discloses the compensation of such other employees or applicants toindividuals who do not otherwise have access to such information, unless such disclosure is in response to aformal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including aninvestigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information.

4. The contractor will send to each labor union or representative of workers with which he has a collectivebargaining agreement or other contract or understanding, a notice, to be provided by the agency contractingofficer, advising the labor union or workers' representative of the contractor's commitments under Section 202 ofExecutive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous placesavailable to employees and applicants for employment.

5. The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules,regulations, and relevant orders of the Secretary of Labor.

6. The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24,1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permitaccess to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes ofinvestigation to ascertain compliance with such rules, regulations, and orders.

7. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any ofsuch rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in partand the contractor may be declared ineligible for further Government contracts in accordance with proceduresauthorized in Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed andremedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, ororder of the Secretary of Labor, or as otherwise provided by law.

8. The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase orderunless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 ofExecutive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon eachsubcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase orderas may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions fornoncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with,litigation with a subcontractor or vendor as a result of such direction, the contractor may request the UnitedStates to enter into such litigation to protect the interests of the United States." [Sec. 202 amended by EO11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 19661970 Comp., p. 684, EO 12086 of Oct. 5, 1978, 43 FR 46501,3 CFR, 1978 Comp., p. 230, EO 13665 of April 8, 2014, 79 FR 20749, EO 13672 of July 21, 2014, 79 FR 42971]

SEC. 203.

a. Each contractor having a contract containing the provisions prescribed in Section 202 shall file, and shall causeeach of his subcontractors to file, Compliance Reports with the contracting agency or the Secretary of Labor asmay be directed. Compliance Reports shall be filed within such times and shall contain such information as tothe practices, policies, programs, and employment policies, programs, and employment statistics of thecontractor and each subcontractor, and shall be in such form, as the Secretary of Labor may prescribe.

b. Bidders or prospective contractors or subcontractors may be required to state whether they have participated inany previous contract subject to the provisions of this Order, or any preceding similar Executive order, and inthat event to submit, on behalf of themselves and their proposed subcontractors, Compliance Reports prior to oras an initial part of their bid or negotiation of a contract.

c. Whenever the contractor or subcontractor has a collective bargaining agreement or other contract orunderstanding with a labor union or an agency referring workers or providing or supervising apprenticeship ortraining for such workers, the Compliance Report shall include such information as to such labor union's oragency's practices and policies affecting compliance as the Secretary of Labor may prescribe: Provided, That tothe extent such information is within the exclusive possession of a labor union or an agency referring workers orproviding or supervising apprenticeship or training and such labor union or agency shall refuse to furnish such

80



information to the contractor, the contractor shall so certify to the Secretary of Labor as part of its ComplianceReport and shall set forth what efforts he has made to obtain such information.

d. The Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, aspart of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of anylabor union or any agency referring workers or providing or supervising apprenticeship or other training, withwhich the bidder or prospective contractor deals, with supporting information, to the effect that the signer'spractices and policies do not discriminate on the grounds of race, color, religion, sex, sexual orientation, genderidentity, or national origin, and that the signer either will affirmatively cooperate in the implementation of thepolicy and provisions of this Order or that it consents and agrees that recruitment, employment, and the termsand conditions of employment under the proposed contract shall be in accordance with the purposes andprovisions of the order. In the event that the union, or the agency shall refuse to execute such a statement, theCompliance Report shall so certify and set forth what efforts have been made to secure such a statement andsuch additional factual material as the Secretary of Labor may require.

[Sec. 203 amended by EO 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 19661970 Comp., p. 684; EO 12086 of Oct. 5,1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230, EO 13672 of July 21, 2104, 79 FR 42971]

SEC. 204

a. The Secretary of Labor may, when the Secretary deems that special circumstances in the national interest sorequire, exempt a contracting agency from the requirement of including any or all of the provisions of Section202 of this Order in any specific contract, subcontract, or purchase order.

b. The Secretary of Labor may, by rule or regulation, exempt certain classes of contracts, subcontracts, orpurchase orders (1) whenever work is to be or has been performed outside the United States and norecruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies orraw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to theextent that they involve subcontracts below a specified tier.

c. Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religiouscorporation, association, educational institution, or society, with respect to the employment of individuals of aparticular religion to perform work connected with the carrying on by such corporation, association, educationalinstitution, or society of its activities. Such contractors and subcontractors are not exempted or excused fromcomplying with the other requirements contained in this Order.

d. The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of acontractor that are in all respects separate and distinct from activities of the contractor related to theperformance of the contract: provided, that such an exemption will not interfere with or impede the effectuationof the purposes of this Order: and provided further, that in the absence of such an exemption all facilities shallbe covered by the provisions of this Order.''

[Sec. 204 amended by EO 13279 of Dec. 16, 2002, 67 FR 77141, 3 CFR, 2002 Comp., p. 77141 77144]

Subpart C Powers and Duties of the Secretary of Labor and the Contracting Agencies

SEC. 205. The Secretary of Labor shall be responsible for securing compliance by all Government contractors andsubcontractors with this Order and any implementing rules or regulations. All contracting agencies shall comply with theterms of this Order and any implementing rules, regulations, or orders of the Secretary of Labor. Contracting agenciesshall cooperate with the Secretary of Labor and shall furnish such information and assistance as the Secretary mayrequire.

[Sec. 205 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230]

SEC. 206.

a. The Secretary of Labor may investigate the employment practices of any Government contractor or81



subcontractor to determine whether or not the contractual provisions specified in Section 202 of this Order havebeen violated. Such investigation shall be conducted in accordance with the procedures established by theSecretary of Labor.

b. The Secretary of Labor may receive and investigate complaints by employees or prospective employees of aGovernment contractor or subcontractor which allege discrimination contrary to the contractual provisionsspecified in Section 202 of this Order.


SEC. 207. The Secretary of Labor shall use his/her best efforts, directly and through interested Federal, State, and localagencies, contractors, and all other available instrumentalities to cause any labor union engaged in work underGovernment contracts or any agency referring workers or providing or supervising apprenticeship or training for or in thecourse of such work to cooperate in the implementation of the purposes of this Order. The Secretary of Labor shall, inappropriate cases, notify the Equal Employment Opportunity Commission, the Department of Justice, or otherappropriate Federal agencies whenever it has reason to believe that the practices of any such labor organization oragency violate Title VI or Title VII of the Civil Rights Act of 1964 or other provision of Federal law.


SEC. 208.

a. The Secretary of Labor, or any agency, officer, or employee in the executive branch of the Governmentdesignated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, as theSecretary may deem advisable for compliance, enforcement, or educational purposes.

b. The Secretary of Labor may hold, or cause to be held, hearings in accordance with Subsection of this Sectionprior to imposing, ordering, or recommending the imposition of penalties and sanctions under this Order. Noorder for debarment of any contractor from further Government contracts under Section 209(6) shall be madewithout affording the contractor an opportunity for a hearing.

Subpart D Sanctions and Penalties

SEC. 209. In accordance with such rules, regulations, or orders as the Secretary of Labor may issue or adopt, theSecretary may:

1. Publish, or cause to be published, the names of contractors or unions which it has concluded have complied orhave failed to comply with the provisions of this Order or of the rules, regulations, and orders of the Secretaryof Labor.

2. Recommend to the Department of Justice that, in cases in which there is substantial or material violation or thethreat of substantial or material violation of the contractual provisions set forth in Section 202 of this Order,appropriate proceedings be brought to enforce those provisions, including the enjoining, within the limitations ofapplicable law, of organizations, individuals, or groups who prevent directly or indirectly, or seek to preventdirectly or indirectly, compliance with the provisions of this Order.

3. Recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropriateproceedings be instituted under Title VII of the Civil Rights Act of 1964.

4. Recommend to the Department of Justice that criminal proceedings be brought for the furnishing of falseinformation to any contracting agency or to the Secretary of Labor as the case may be.

5. After consulting with the contracting agency, direct the contracting agency to cancel, terminate, suspend, orcause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure ofthe contractor or subcontractor to comply with equal employment opportunity provisions of the contract.Contracts may be cancelled, terminated, or suspended absolutely or continuance of contracts may beconditioned upon a program for future compliance approved by the Secretary of Labor.

82



6. Provide that any contracting agency shall refrain from entering into further contracts, or extensions or othermodifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied theSecretary of Labor that such contractor has established and will carry out personnel and employment policies incompliance with the provisions of this Order.

(b) Pursuant to rules and regulations prescribed by the Secretary of Labor, the Secretary shall make reasonable efforts,within a reasonable time limitation, to secure compliance with the contract provisions of this Order by methods ofconference, conciliation, mediation, and persuasion before proceedings shall be instituted under subsection (a)(2) of thisSection, or before a contract shall be cancelled or terminated in whole or in part under subsection (a)(5) of this Section.


SEC. 210. Whenever the Secretary of Labor makes a determination under Section 209, the Secretary shall promptlynotify the appropriate agency. The agency shall take the action directed by the Secretary and shall report the results ofthe action it has taken to the Secretary of Labor within such time as the Secretary shall specify. If the contracting agencyfails to take the action directed within thirty days, the Secretary may take the action directly.

[Sec. 210 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p 230]

SEC. 211. If the Secretary shall so direct, contracting agencies shall not enter into contracts with any bidder orprospective contractor unless the bidder or prospective contractor has satisfactorily complied with the provisions of thisOrder or submits a program for compliance acceptable to the Secretary of Labor.


SEC. 212. When a contract has been cancelled or terminated under Section 209(a)(5) or a contractor has beendebarred from further Government contracts under Section 209(a)(6) of this Order, because of noncompliance with thecontract provisions specified in Section 202 of this Order, the Secretary of Labor shall promptly notify the ComptrollerGeneral of the United States.


Subpart E Certificates of Merit

SEC. 213. The Secretary of Labor may provide for issuance of a United States Government Certificate of Merit toemployers or labor unions, or other agencies which are or may hereafter be engaged in work under Governmentcontracts, if the Secretary is satisfied that the personnel and employment practices of the employer, or that thepersonnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices andpolicies of the labor union or other agency conform to the purposes and provisions of this Order.

SEC. 214. Any Certificate of Merit may at any time be suspended or revoked by the Secretary of Labor if the holderthereof, in the judgment of the Secretary, has failed to comply with the provisions of this Order.

SEC. 215. The Secretary of Labor may provide for the exemption of any employer, labor union, or other agency fromany reporting requirements imposed under or pursuant to this Order if such employer, labor union, or other agency hasbeen awarded a Certificate of Merit which has not been suspended or revoked.

Part III Nondiscrimination Provisions in Federally Assisted Construction Contracts

SEC. 301. Each executive department and agency, which administers a program involving Federal financial assistanceshall require as a condition for the approval of any grant, contract, loan, insurance, or guarantee thereunder, which mayinvolve a construction contract, that the applicant for Federal assistance undertake and agree to incorporate, or cause tobe incorporated, into all construction contracts paid for in whole or in part with funds obtained from the FederalGovernment or borrowed on the credit of the Federal Government pursuant to such grant, contract, loan, insurance, orguarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee,the provisions prescribed for Government contracts by Section 202 of this Order or such modification thereof, preservingin substance the contractor's obligations thereunder, as may be approved by the Secretary of Labor, together with such

83



additional provisions as the Secretary deems appropriate to establish and protect the interest of the United States in theenforcement of those obligations. Each such applicant shall also undertake and agree (1) to assist and cooperate activelywith the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisionsand with the rules, regulations and relevant orders of the Secretary, (2) to obtain and to furnish to the Secretary ofLabor such information as the Secretary may require for the supervision of such compliance, (3) to carry out sanctionsand penalties for violation of such obligations imposed upon contractors and subcontractors by the Secretary of Laborpursuant to Part II, Subpart D, of this Order, and (4) to refrain from entering into any contract subject to this Order, orextension or other modification of such a contract with a contractor debarred from Government contracts under Part II,Subpart D, of this Order.


SEC. 302.

a. "Construction contract" as used in this Order means any contract for the construction, rehabilitation, alteration,conversion, extension, or repair of buildings, highways, or other improvements to real property.

b. The provisions of Part II of this Order shall apply to such construction contracts, and for purposes of suchapplication the administering department or agency shall be considered the contracting agency referred totherein.

c. The term "applicant" as used in this Order means an applicant for Federal assistance or, as determined byagency regulation, other program participant, with respect to whom an application for any grant, contract, loan,insurance, or guarantee is not finally acted upon prior to the effective date of this Part, and it includes such anapplicant after he/she becomes a recipient of such Federal assistance.

SEC. 303.

a. The Secretary of Labor shall be responsible for obtaining the compliance of such applicants with theirundertakings under this Order. Each administering department and agency is directed to cooperate with theSecretary of Labor and to furnish the Secretary such information and assistance as the Secretary may require inthe performance of the Secretary's functions under this Order.

b. In the event an applicant fails and refuses to comply with the applicant's undertakings pursuant to this Order,the Secretary of Labor may, after consulting with the administering department or agency, take any or all of thefollowing actions: (1) direct any administering department or agency to cancel, terminate, or suspend in wholeor in part the agreement, contract or other arrangement with such applicant with respect to which the failure orrefusal occurred; (2) direct any administering department or agency to refrain from extending any furtherassistance to the applicant under the program with respect to which the failure or refusal occurred untilsatisfactory assurance of future compliance has been received by the Secretary of Labor from such applicant;and (3) refer the case to the Department of Justice or the Equal Employment Opportunity Commission forappropriate law enforcement or other proceedings.

c. In no case shall action be taken with respect to an applicant pursuant to clause (1) or (2) of subsection (b)without notice and opportunity for hearing.


SEC. 304. Any executive department or agency which imposes by rule, regulation, or order requirements ofnondiscrimination in employment, other than requirements imposed pursuant to this Order, may delegate to theSecretary of Labor by agreement such responsibilities with respect to compliance standards, reports, and procedures aswould tend to bring the administration of such requirements into conformity with the administration of requirementsimposed under this Order: Provided, That actions to effect compliance by recipients of Federal financial assistance withrequirements imposed pursuant to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with theprocedures and limitations prescribed in Section 602 thereof and the regulations of the administering department oragency issued thereunder.

84



Part IV Miscellaneous

SEC. 401. The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of theGovernment, any function or duty of the Secretary under Parts II and III of this Order.

[Sec. 401 amended by EO 12086 of Oct. 5, l978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230]

SEC. 402. The Secretary of Labor shall provide administrative support for the execution of the program known as the"Plans for Progress."

SEC. 403.

a. Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5, 1957), 10925 (March 6, 1961), 11114 (June22, 1963), and 11162 (July 28, 1964), are hereby superseded and the President's Committee on EqualEmployment Opportunity established by Executive Order No. 10925 is hereby abolished. All records and propertyin the custody of the Committee shall be transferred to the Office of Personnel Management and the Secretaryof Labor, as appropriate.

b. Nothing in this Order shall be deemed to relieve any person of any obligation assumed or imposed under orpursuant to any Executive Order superseded by this Order. All rules, regulations, orders, instructions,designations, and other directives issued by the President's Committee on Equal Employment Opportunity andthose issued by the heads of various departments or agencies under or pursuant to any of the Executive orderssuperseded by this Order, shall, to the extent that they are not inconsistent with this Order, remain in full forceand effect unless and until revoked or superseded by appropriate authority. References in such directives toprovisions of the superseded orders shall be deemed to be references to the comparable provisions of thisOrder.

[Sec. 403 amended by EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p, 264]

SEC. 404. The General Services Administration shall take appropriate action to revise the standard Government contractforms to accord with the provisions of this Order and of the rules and regulations of the Secretary of Labor.

SEC. 405. This Order shall become effective thirty days after the date of this Order.

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

43087 Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG–2016–0331]

RIN 1625–AA00

Safety Zone; Confluence of James River and Appomattox River, Hopewell, VA

AGENCY: Coast Guard, DHS. ACTION: Temporary final rule.

SUMMARY: The Coast Guard is establishing a safety zone on the navigable waters of the confluence of the James River and the Appomattox River in Hopewell, Virginia. This safety zone will restrict vessel movement within a 700-foot radius of the fireworks barge during the fireworks display for the City of Hopewell centennial celebration. This action is necessary to provide for the safety of life and property on the surrounding navigable waters during the fireworks display. DATES: This rule is effective and will be enforced from 8 p.m. through 10:45 p.m. on July 2, 2016. ADDRESSES: To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG–2016– 0331 in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this rule. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email LCDR Barbara Wilk, Waterways Management Division Chief, Sector Hampton Roads, U.S. Coast Guard; telephone 757–668–5580, email [email protected]. SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code

II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good

104


cause finds that those procedures are ‘‘impracticable, unnecessary, or contrary to the public interest.’’ Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because information about the fireworks on July 2, 2016 was not received by the Coast Guard until recently, which provided insufficient time to allow for an opportunity to comment on the proposed rule. The Coast Guard will provide advance notifications to users of the affected waterway via marine information broadcasts and local notice to mariners.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Due to the need for the safety zone to be in place on July 2, 2016, to protect life, property and the environment; therefore, a 30-day notice is impracticable. Delaying the effective date would be contrary to the safety zone’s intended objectives of protecting persons and vessels, and enhancing public and maritime safety.

III. Legal Authority and Need for Rule The Coast Guard is issuing this rule

under authority in 33 U.S.C. 1231. The Captain of the Port Hampton Roads (COTP) has determined that potential hazards associated with the fireworks display starting on July 2, 2016, will be a safety concern for anyone within a 700-foot radius of the fireworks barge. This rule is needed to protect the participants, patrol vessels, and other vessels transiting the navigable waters of the confluence of the James River and the Appomattox River, in Hopewell, VA, from hazards associated with a fireworks display. The potential hazards to mariners within the safety zone include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.

IV. Discussion of the Rule The Captain of the Port of Hampton

Roads is establishing a safety zone on the confluence of the James River and the Appomattox River in Hopewell, VA. The safety zone will encompass all navigable waters within a 700-foot radius of the fireworks display barge location at position 37°19′27.74″ N., 077°16′45.22″ W. (NAD 1983). This safety zone still allows for navigation on the waterway. This safety zone will be established and enforced from 8 p.m. through 10:45 p.m. on July 2, 2016. Access to the safety zone will be restricted during the effective period.

Except for participants and vessels authorized by the Captain of the Port or his Designated representative, no person or vessel may enter or remain in the regulated area.

The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice to the affected segments of the public. This includes publication in the Local Notice to Mariners and Marine Information Broadcasts.

V. Regulatory Analyses We developed this rule after

considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review Executive Orders 12866 and 13563

direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a ‘‘significant regulatory action,’’ under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the confluence of the James River and the Appomattox River in Hopewell, VA for less than 3 hours. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF–FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

B. Impact on Small Entities The Regulatory Flexibility Act of

1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term ‘‘small entities’’ comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a

significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1– 888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information This rule will not call for a new

collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes,

105


or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment We have analyzed this rule under

Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than 3 hours that will prohibit entry within a 700-foot radius of the fireworks barge. It is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities The Coast Guard respects the First

Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation

(water), Reporting and recordkeeping requirements, Security measures, Waterways.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T05–0331 to read as follows:

§ 165.T05–0331 Safety Zone, Confluence of James River and Appomattox River; Hopewell, VA.

(a) Definitions. For the purposes of this section—

Captain of the Port means the Commander, Sector Hampton Roads.

Designated representative means any Coast Guard commissioned, warrant or petty officer who has been authorized to act on the behalf of the Captain of the Port.

Participants mean individuals and vessels involved in explosives training.

(b) Location. The following area is a safety zone: All waters in the confluence of the James River and the Appomattox River, within a 700-foot radius of the fireworks display barge in approximate position 37°19′27.74″ N., 077°16′45.22″ W. (NAD 1983).

(c) Regulations. (1) All persons are required to comply with the general regulations governing safety zones in § 165.23.

(2) With the exception of participants, entry into or remaining in this safety zone is prohibited unless authorized by the Captain of the Port, Hampton Roads or his designated representative.

(3) All vessels underway within this safety zone at the time it is implemented are to depart the zone immediately.

(4) The Captain of the Port, Hampton Roads or his designated representative can be contacted at telephone number (757) 668–5555.

(5) The Coast Guard and designated security vessels enforcing the safety zone can be contacted on VHF–FM marine band radio channel 13 (165.65 Mhz) and channel 16 (156.8 Mhz).

(6) This section applies to all persons or vessels wishing to transit through the safety zone except participants and vessels that are engaged in the following operations:

(i) Enforcing laws; (ii) Servicing aids to navigation, and (iii) Emergency response vessels. (7) The U.S. Coast Guard may be

assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies.

(d) Enforcement period. This section will be enforced from 8 p.m. through 10:45 p.m. on July 2, 2016.

Dated: June 15, 2016. Christopher S. Keane, Captain, U.S. Coast Guard, Captain of the Port Hampton Roads. [FR Doc. 2016–15608 Filed 6–30–16; 8:45 am]

BILLING CODE 9110–04–P

106

107

108

109

110

111

112

21266 Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Notices

Dated: April 13, 2015. Rebecca J. Lent, Executive Director. [FR Doc. 2015–08771 Filed 4–15–15; 4:15 pm]


NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Nixon Presidential Historical Materials: Opening of Materials

AGENCY: National Archives and Records Administration (NARA). ACTION: Notice of opening of additional Presidential materials.

SUMMARY: The National Archives and Records Administration’s (NARA) Richard Nixon Presidential Library and Museum is opening additional Nixon Presidential Historical Materials for public access. These materials include previously restricted materials and select White House Central Files, Name Files. In accordance with section 104 of Title I of the Presidential Recordings and Materials Preservation Act (PRMPA, 44 U.S.C. 2111 note) and § 1275.42(b) of the regulations implementing the Act (36 CFR part 1275), NARA has identified, inventoried, and prepared for public access these additional textual materials with certain information redacted as required by law, including the PRMPA. DATES: The materials described in this notice will be available to the public on Wednesday, May 20, 2015, beginning at 9:30 a.m. PDT (12:30 p.m. EDT).

In accordance with 36 CFR 1275.44, any person who believes it necessary to file a claim of legal right or privilege concerning access to these materials must notify the Archivist of the United States in writing of the claimed right, privilege, or defense by May 18, 2015. ADDRESSES: The materials will be available for viewing at the Richard Nixon Presidential Library and Museum; 18001 Yorba Linda Blvd.; Yorba Linda, CA. Selections from these materials will also be available online at www.nixonlibrary.gov.

You must send any petition asserting a legal or constitutional right or privilege that would prevent or limit public access to the materials to The Archivist of the United States; National Archives at College Park; 8601 Adelphi Rd.; College Park, Maryland 20740– 6001.

FOR FURTHER INFORMATION CONTACT: Gregory Cumming, Richard Nixon Presidential Library and Museum, by telephone at 714–983–9131.

SUPPLEMENTARY INFORMATION: Researchers must have a NARA researcher card to view the materials; you may obtain a card when you arrive at the Library.

Description of Materials

The following materials will be made available in accordance with this notice:

1. Previously restricted textual materials. Volume: 2 cubic feet. A number of textual materials previously withheld from public access have been reviewed for release or declassified under the systematic declassification review provisions and under the mandatory review provisions of Executive Order 13526, the Freedom of Information Act (5 U.S.C. 552), or in accordance with 36 CFR 1275.56 (Public Access regulations). The materials are from integral file segments for the National Security Council (NSC Files and NSC Institutional Files); along with Henry A. Kissinger (HAK) Office Files; Kissinger Telephone Conversation Transcripts; the White House Special Files; and White House Central Files.

2. White House Central Files, Name Files: Volume: 4.5 cubic feet. The Name Files were used for routine materials filed alphabetically by the name of the correspondent; copies of documents in the Name Files were usually filed by subject in the Subject Files. Brosk Brown, Robert H–K Brown, William H–K Bryant, We Bush, G Bush, George (Cong.) Gov. Jimmy Carter Hon. Fletcher, Arthur (Art) Ford, Gerald Ford, Gerald (Cong.) Goldwater, Barry (Cong.) Goldwater, Barry (Sen.) Hoover, J. Edgar Humphrey, Hubert Kerne Linkletter, Art Luce, Clare Booth Marriott, J. Willard (Bill) McGovern, George S. (Sen) McHugh, A–E Meade, R. Meany, George (Hon) Murphy, Mr. Audie Nesse Orm Patman, Wright (Cong.) Payton, Q–T Pelles Peric Proxmire, William (Sen.) Wayne, John (Duke)

Dated: April 10, 2015. David S. Ferriero, Archivist of the United States. [FR Doc. 2015–08850 Filed 4–16–15; 8:45 am]


VerDate Sep<11>2014 19:08 Apr 16, 2015 Jkt 235001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\17APN1.SGM 17APN1tkel

ley

on D

SK

3SP

TV

N1P

RO

D w

ith N

OT

ICE

S

113

http://www.nixonlibrary.gov

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

CONSTITUTION OF VIRGINIA

Article VIII, Sections 10, 11; Article IX, Sections 1, 2

26

ARTICLE IX

Corporations

Section 1. State Corporation Commission.

There shall be a permanent commission which shall be known as the State Corporation Commission and which

shall consist of three members. The General Assembly may, by majority vote of the members elected to each house,

increase the size of the Commission to no more than five members. Members of the Commission shall be elected by

the General Assembly and shall serve for regular terms of six years. At least one member of the Commission shall

have the qualifications prescribed for judges of courts of record, and any Commissioner may be impeached or

removed in the manner provided for the impeachment or removal of judges of courts of record. The General

Assembly may enact such laws as it deems necessary for the retirement of the Commissioners, with such

conditions, compensation, and duties as it may prescribe. The General Assembly may also provide for the

mandatory retirement of Commissioners after they reach a prescribed age, beyond which they shall not serve,

regardless of the term to which elected or appointed. Whenever a vacancy in the Commission shall occur or exist

when the General Assembly is in session, the General Assembly shall elect a successor for such unexpired term. If

the General Assembly is not in session, the Governor shall forthwith appoint pro tempore a qualified person to fill

the vacancy for a term ending thirty days after the commencement of the next regular session of the General

Assembly and the General Assembly shall elect a successor for such unexpired term.

The Commission shall annually elect one of its members chairman. Its subordinates and employees, and the

manner of their appointment and removal, shall be as provided by law, except that its heads of divisions and

assistant heads of divisions shall be appointed and subject to removal by the Commission.

Section 2. Powers and duties of the Commission.

Subject to the provisions of this Constitution and to such requirements as may be prescribed by law, the

Commission shall be the department of government through which shall be issued all charters, and amendments or

extensions thereof, of domestic corporations and all licenses of foreign corporations to do business in this

Commonwealth.

140


Article IX, Sections 2, 3, 4, 5, 6

27

Except as may be otherwise prescribed by this Constitution or by law, the Commission shall be charged with

the duty of administering the laws made in pursuance of this Constitution for the regulation and control of

corporations doing business in this Commonwealth. Subject to such criteria and other requirements as may be

prescribed by law, the Commission shall have the power and be charged with the duty of regulating the rates,

charges, and services and, except as may be otherwise authorized by this Constitution or by general law, the

facilities of railroad, telephone, gas, and electric companies.

The Commission shall in proceedings before it ensure that the interests of the consumers of the Commonwealth

are represented, unless the General Assembly otherwise provides for representation of such interests.

The Commission shall have such other powers and duties not inconsistent with this Constitution as may be

prescribed by law.

Section 3. Procedures of the Commission.

Before promulgating any general order, rule, or regulation, the Commission shall give reasonable notice of its

contents.

In all matters within the jurisdiction of the Commission, it shall have the powers of a court of record to

administer oaths, to compel the attendance of witnesses and the production of documents, to punish for contempt,

and to enforce compliance with its lawful orders or requirements by adjudging and enforcing by its own appropriate

process such fines or other penalties as may be prescribed or authorized by law. Before the Commission shall enter

any finding, order, or judgment against a party it shall afford such party reasonable notice of the time and place at

which he shall be afforded an opportunity to introduce evidence and be heard.

The Commission may prescribe its own rules of practice and procedure not inconsistent with those made by the

General Assembly. The General Assembly shall have the power to adopt such rules, to amend, modify, or set aside

the Commission's rules, or to substitute rules of its own.

Section 4. Appeals from actions of the Commission.

The Commonwealth, any party in interest, or any party aggrieved by any final finding, order, or judgment of the

Commission shall have, of right, an appeal to the Supreme Court. The method of taking and prosecuting an appeal

from any action of the Commission shall be prescribed by law or by the rules of the Supreme Court. All appeals

from the Commission shall be to the Supreme Court only.

No other court of the Commonwealth shall have jurisdiction to review, reverse, correct, or annul any action of

the Commission or to enjoin or restrain it in the performance of its official duties, provided, however, that the writs

of mandamus and prohibition shall lie from the Supreme Court to the Commission.

Section 5. Foreign corporations.

No foreign corporation shall be authorized to carry on in this Commonwealth the business of, or to exercise any

of the powers or functions of, a public service enterprise, or be permitted to do anything which domestic

corporations are prohibited from doing, or be relieved from compliance with any of the requirements made of

similar domestic corporations by the Constitution and laws of this Commonwealth. However, nothing in this section

shall restrict the power of the General Assembly to enact such laws specially applying to foreign corporations as the

General Assembly may deem appropriate.

Section 6. Corporations subject to general laws.

The creation of corporations, and the extension and amendment of charters whether heretofore or hereafter

granted, shall be provided for by general law, and no charter shall be granted, amended, or extended by special act,

nor shall authority in such matters be conferred upon any tribunal or officer, except to ascertain whether the

applicants have, by complying with the requirements of the law, entitled themselves to the charter, amendment, or

extension applied for and to issue or refuse the same accordingly. Such general laws may be amended, repealed, or

modified by the General Assembly. Every corporation chartered in this Commonwealth shall be deemed to hold its

charter and all amendments thereof under the provisions of, and subject to all the requirements, terms, and

conditions of, this Constitution and any laws passed in pursuance thereof. The police power of the Commonwealth

to regulate the affairs of corporations, the same as individuals, shall never be abridged.

141


Article IX, Section 7; Article X, Sections 1, 2, 3

Section 7. Exclusions from term "corporation" or "company."

The term "corporation" or "company" as used in this article shall exclude all municipal corporations, other

political subdivisions, and public institutions owned or controlled by the Commonwealth.

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

N. A. A. C. P. v. ALABAMA.

Syllabus.

NATIONAL ASSOCIATION FOR THE ADVANCE-MENT OF COLORED PEOPLE v. ALABAMA

EX REL. PATTERSON, ATTORNEYGENERAL.

CERTIORARI TO THE SUPREME COURT OF ALABAMA.

No. 91. Argued January 15-16, 1958.-Decided June 30, 1958.

Petitioner is a nonprofit membership corporation organized under thelaws of New York for the purpose of advancing the welfare ofNegroes. It operates through chartered affiliates which are inde-pendent unincorporated associations, with membership thereinequivalent to membership in petitioner. It had local affiliates inAlabama and opened an office of its own there without complyingwith an Alabama statute which, with some exceptions, requires aforeign corporation to qualify before doing business in the Stateby filing its corporate charter and designating a 'place of businessand an agent to receive service of process. Alleging that peti-tioner's activities were causing irreparable injury to the citizens ofthe State for which criminal prosecution and civil actions at lawafforded no adequate relief, the State brought an equity suit in astate court to enjoin petitioner from conducting further activitiesin, and to oust it from, the State. The court issued an ex parteorder restraining petitioner, pendente lite, from engaging in fur-ther activities in the State and from taking any steps to qualify todo business there. Petitioner moved to dissolve the restrainingorder, and the court, on the State's motion, ordered the produc-tion of many of petitioner's records, including-its membership lists.After some delay, petitioner produced substantially all the datacalled for except its membership lists. It was adjhdged in con-tempt and fined $100,000 for failure to produce the lists. TheState Supreme Court denied certiorari to review the contemptjudgment, and this Court granted certiorari. Held:

1. Denial of relief by the State Supreme Court did not rest onan adequate state ground, and this Court has jurisdiction toentertain petitioner's federal claims. Pp. 454-458.

2. Petitioner has a right to assert on behalf of its members aclaim that they are entitled under the Federal Constitution to beprotected from being compelled by the State to disclose theiraffiliation with the Association. Pp. 458-460.

161

450 OCTOBER TERM, 1957.

Syllabus. 357 U. S.

3. Immunity from state scrutiny of petitioner's membership listsis here so related to the right, of petitioner's members to pursuetheir lawful private interests privately and to associate freely withothers in doing so as to come within the protection of the Four-teenth Amendment. The State has failed to show a controllingjustification for the deterrent effect on the free enjoyment of theright to associate which disclosure of petitioner's membership listsis likely to have. Accordingly,the judgment of civil contempt andthe fine which -resulted from petitioner's refusal to produce itsmembership lists must fall. Pp. 460-466.

(a) Freedom to engage in association for the advancement ofbeliefs and ideas is an inseparable aspect of the "liberty" assuredby the Due Process Clause of the Fourteenth Amendment. Pp.460-461.

(b) In the circumstances of this case, compelled disclosure ofpetitioner's membership lists is likely to constitute an effectiverestrcInt on its members' freedom of association. Pp. 461-463.

(c) Whatever interest the State may have in obtaining thenames of petitioner's ordinary members, it has not been shown tobe sufficient to overcome petitioner's constitutional objections: tothe production order. Pp. 463-466.

4. The question whether the state court's temporary restrainingorder preventing petitioner from soliciting support in the Stateviolates the Fourteenth Amendment is not properly before thisCourt, since the merits of t he controversy have hot been passedupon by the state courts. Pp. 466-467.

265 Ala. 349, 91 So. 2(1 214, reversed and cause remanded.

Robert L. Carter argued the cause for petitioner.With him on the brief were Thurgood Marshall, ArthurD. Shores, William T. Coleman, Jr., George E. C. Hayes,William R. Ming, Jr., James M. Nabrit, Jr., Louis H.Pollak and Frank D. Reeves.-

Edmon L. Rinehart, Assistant Attorney General ofAlabi.na, argued the cause. for respondent. With himon the brief were John Patterson, Attorney General, andMacDonald Gallion and James W. Webb, AssistantAttorneys General.

162


449 Opinion of the Court.

MR. JUSTICE HARLAN delivered the opinion of the Court.

We review from the standpoint of its validity underthe Federal Constitution a judgment of civil contemptentered against petitioner, the National Association forthe Advancement of Colored People, in the courts of Ala-bama. The question presented is whether Alabama, con-sistently with the Due Process Clause of the FourteenthAmendment, can compel petitioner to reveal to the State'sAttorney General the names and addresses of all its Ala-bama members and agents, without regard to their posi-tions or functions in the Association. The judgment ofcontempt was based upon petitioner's refusal to complyfully with a court order requiring in part the productionof membership lists. Petitioner's claim is that the order,in the circumstances. shown by this record, violatedrights assured to petitioner and its members under theConstitution.

Alabama has a statute similar to those of many otherStates which requires a foreign corporation, except asexempted, to qualify before doing business by filing itscorporate charter with the Secretary of State and desig-nating a place of business and an agent to receive serviceof process. The statute imposes a fine on a corporationtransacting intrastate business before qualifying and pro-vides for criminal prosecution of officers of such a corpora-tion. Ala. Code, 1940, Tit. 10, §§ 192-198. The NationalAssociation for the Advancement of Colored People is anonprofit membership corporation organized under thelaws of New York. Its purposes, fostered on a nation-wide basis, are those indicated by its name,* and it oper-

*The Certificate of Incorporation of the Association provides that

its ". . . principal objects . . . are voluntarily to promote equalityof rights and eradicate caste or race prejudice among the citizens ofthe United States; to advance the interest of colored citizens; to

163

OCTOBER TERM, 1957.

Opinion of the Court. , 357 U. S.

ates through chartered affiliates which are independentunincorporated associations, with membership thereinequivalent to membership in petitioner. The first Ala-bama affiliates were chartered in 1918. Since that timethe aims of the Association have been advanced throughactivities of its affiliates, and in 1951 the Association itselfopened a regional office in Alabama, at which it employedtwo supervisory persons and one clerical worker. TheAssociation has never complied with the qualificationstatute, from which it considered itself exempt.

In 1956 the Attorney General of Alabama brought anequity suit in the State Circuit Court, MontgomeryCounty, to enjoin the Association from conducting fur-ther activities within, and to oust it from, the State.Among other things the bill in equity alleged that theAssociation had opened a regional office and had organizedvarious affiliates in Alabama; had recruited members andsolicited contributions within the State; had given finan-cial support and furnished legal assistance to Negrostudents seeking admission to the state university; andhad supported a Negro boycott of the bus lines inMontgomery to compel the seating of passengers withoutregard to race. The bill recited that the Association,by continuing to do business in Alabama without com-plying with the qualification statute, was ". . . causingirreparable injury to the property and civil rights of theresidents and citizens of the State of Alabama for whichcriminal prosecution and civil actions at law afford noadequate relief . . . ." On the day the complaint wasfiled, the Circuit Court issued ex parte an order restrain-ing the Association, pendente lite, from engaging in

secure for them impartial suffrage; and to increase their opportunitiesfor securing justice in the courts, education for their children,employment according to their ability, and complete equality beforethe law."

164



further activities within the State and forbidding it totake any steps to qualify itself to do business therein.

Petitioner demurred to the allegations of the bill apr"moved to dissolve the restraining order. It contenAedthat its activities did not subject it to the qualificationrequirements of the statute and that in any event whatthe State sought to accomplish by its suit would violaterights to freedom of speech and assembly guaranteedunder the Fourteenth Amendment to the Constitutionof the United States. Before the date set for a hearingon this motion, the State moved for the production ofa large number of the Association's records and papers,inciuding bank statements, leases, deeds, and records con-taining the names and addresses of all Alabama "mem-bers" and "agents" of the Association. It alleged thatall such documents were necessary for adequate prepara-tion for the hearing, in view of petitioner's denial of theconduct of intrastate business within the meaning ofthe qualification statute. Over petitioner's objections,the court ordered the production of a substantial part ofthe requested records, including the membership lists, andpostponed the hearing on the restraining order to a datelater than the time ordered for production.

Thereafter petitioner filed its answer to the bill inequity. It admitted its Alabama activities substantiallyas alleged in the complaint and that it had not qualified todo business in the State. Although still disclaiming thestatute's application to it, petitioner offered to qualifyif the bar from qualification made part of the restrainingorder were lifted, and it submitted with the answer an exe-cuted set of the forms required by the statute. Howeverpetitioner did not comply with the production order, andfor this failure was adjudged in civil contempt and fined$10,000. The contempt judgment provided that the finewould be subject to reduction or remission if compliance

165

OCTOBER TERM, 1957.

Opinion of the Court. 357 U. S.

were forthcoming within five days but otherwise wouldbe increased to $100,000.

At the end of the five-day period petitioner producedsubstantially all the data called for by the productionorder except its membership lists, as to which it con-tended that Alabama could not constitutionally compeldisclosure, and moved to modify or vacate the contemptjudgment, or stay its execution pending appellate review.This motion was denied. While a similar stay application,which was later denied, was pending before the SupremeCourt of Alabama, the Circuit Court made a further orderadjudging petitioner in continuing contempt and increas-ing the fine already imposed to $100,000. Under Alabanalaw, see Jacoby v. Goetter, Weil & Co., 74 Ala. 427, theeffect of the contempt adjudication was to foreclose peti-tioner from obtaining a hearing on the merits of theunderlying ouster action, or from taking any steps todissolve the temporary restraining order which had beenissued ex parte, until it purged itself of contempt. Butcf. Harrison v. St. Louis & S. F. R. Co., 232 U. S. 318;Hovey v. Elliott, 167 U. S. 409.

The State Supreme Court thereafter twice dismissedpetitions for certiorari to review this final contempt judg-ment, the first time, 91 So. 2d 221, for insufficiency ofthe petition's allegations and the second time on proce-dural grounds. 265 Ala. 349, 91 So. 2d 214. We giantedcertiorari because of, the importance of the constitutionalquestions presented. 353 U. S. 972.

I.

We address ourselves first to respondent's contentionthat we lack jurisdiction because the denial of certiorariby the Supreme Court of Alabama rests on an inde-pendent nonfederal ground, namely, that petitioner inapplying for certiorari had pursued the wrong appellate

166



remedy under state law. Respondent recognizes that ourjurisdiction is not defeated if the nonfederal ground reliedon by the state court is "without any fair or substantialsupport," Ward v. Board of County Commissioners, 253U. S. 17, 22. It thus becomes our duty to ascertain,". .. in order that constitutional guaranties may appro-priately be enforced, whether the asserted non-federalground independently and adequately supports the judg-ment." Abie State Bank v. Bryan, 282 U. S. 765, 773.

The Alabama Supreme Court held that it could notconsider the constitutional issues underlying the con-tempt judgment which related to the power of the Stateto order production of membership lists because review bycertiorari was limited to instances ". . . where the courtlacked jurisdiction of the proceeding, or where on theface of it the order disobeyed was void, or where pro-cedural requirements with respect to citation for con-tempt and the like were not observed, or where the factof contempt is not sustained . . . ." 265 Ala., at 353,91 So. 2d, at 217. The proper means for petitioner toobtain review of the judgment in light of its constitutionalclaims, said the court, was by way of mandamus to quashthe discovery order prior to the contempt adjudication.Because of petitioner's failure to pur ue this remedy, itschallenge to the contempt order was restricted to theabove grounds. Apparently not deeming the constitu-tional objections to draw into question wheiher "on theface of it the order disobeyed was void," the court foundno infirmity in the contempt judgment under this limitedscope of review. At the same time it did go on to con-sider petitioner's constitutional challenge to the order toproduce membership lists but found it untenable sincemembership lists were not privileged against disclosurepursuant to reasonable state demands and since theprivilege against self-incrimination was not available tocorporations.

167

OCTOBER TERM, 1957.


We are unable to reconcile the procedural holding ofthe Alabama Supreme Court in the present case with itspast unambiguous holdings as to the scopeof review avail-able upon a writ of certiorari addressed to a contemptjudgment. As early as 1909 that court said in such acase, Ex parte Dickens, 162 Ala. 272, at 276, 279-280,50 So. 218, at 220, 221:

"Originally, on certiorari, only the question of juris-diction was inquired into; but this limit has beenremoved, and now the court 'examines the law ques-tions involved in the case which may affect itsmerits.'.

[T]he judgment of this court is that theproper way to review the action of the court in casesof this kind is by certiorari, and not by appeal.

"We think that certiorari is a better remedy thanmandamus, because the office of a 'mandamus' is torequire the lower court or judge to act, and not'to correct error or to reverse judicial action,'...whereas, in a proceeding by certiorari, errors of lawin the judicial action of the lower court may beinquired into and corrected."

This statement was in full accord with the earlier case ofEx parte Boscowitz, 84 Ala. 463, 4 So. 279, and the.prac-tice in the later Alabama cases, until we reach the presentone, appears to have been entirely consistent with thisrule. See Ex parte Wheeler, 231 Ala. 356, 358, 165 So. 74,75-76; Ex parte Blakey, 240 Ala. 517, 199 So. 857; Exparte Sellers, 250 Ala. 87, 88, 33 So. 2d 349, 350. Forexample, in Ex parte Morris, 252 Ala. 551, 42 So. 2d 17,decided as late as 1949, the petitioner had been held incontempt for his refusal to obey a court order to producenames of members of the Ku Klux Klan. On writ ofcertiorari, constitutional grounds were urged in part for

168

N. A. A. C. P. v. ALABAMA. 457


reversal of the contempt conviction. In denying the writof certiorari, the Supreme Court concluded that petitionerhad been accorded due process, and in explaining its denialthe court considered and rejected various constitutionalclaims relating to the validity of the order. There wasno intimation that the petitioner had selected an inap-propriate form of appellate review to obtain considerationof all questions of law raised by a contempt judgment.

The Alabama cases do indicate, as was said in the opin-ion below, that an order requiring production of evidence"... may be reviewed on petition for mandamus." 265Ala., at 353, 91 So. 2d, at 217. (Italics added.) See Exparte Hart, 240 Ala. 642, 200 So. 783; cf. Ex parteDriver, 255 Ala. 118, 50 So. 2d 413. But we can discovernothing in the prior state cases which suggests that man-damus is the exclusive remedy for reviewing court ordersafter disobedience of them has led to contempt judgments.Nor, so far as we can find, do any of these prior decisionsindicate that the validity of such orders can be drawn inquestion by way of certiorari only in instances where adefendant had no opportunity to apply for mandamus.Although the opinion below suggests no such distinction,the State now argues that this was in fact the situation inall of the earlier certiorari cases, because there the con-tempt adjudications, unlike here, had followed almostimmediately the disobedience to the court orders. Evenif that is indeed the rationale of the Alabama SupremeCourt's present decision, such a local procedural rule,although it may now appear in retrospect to form part ofa consistent pattern of procedures to obtain appellatereview , cannot avail the State here, because petitionercould hot fairly be deemed to have been apprised of itsexistence. Novelty in procedural requirements cannotbe permitted to thwart review in this Court applied forby those who, in justified reliance upon prior decisions,seek vindication in state courts of their federal constitu-

169

OCTOBER TERM, 1957.


tional rights. Cf. Brinkerhof-Fais Co. v. Hill, 281 U. S.673.

That there was justified reliance here is further indi-cated by what the Alabama Supreme Court said indisposing of petitioner's motion for a stay of the firstcontempt judgment in this case. This motion, whichwas filed prior to the final contempt judgment and whichstressed constitutional issues, recited that "[t]he onlyway in which the [Association] can seek a review of thevalidity of the order upon which the adjudication of con-tempt is based [is] by filing a petition for Writ of Cer-tiorari in this Court." In denying the motion, 265 Ala.356, 357, 91 So. 2d 220, 221, the Supreme Court stated:

"It is the established rule of this Court that theproper method of reviewing a judgment for civilcontempt of the kind here involved is by a petitionfor common law writ of certiorari ...."But the petitioner here has not applied for writ

of certiorari, and we do not feel that the petition[for a stay] presently before us warrants our inter-ference with the judgment of the Circuit Court ofMontgomery County here sought to be stayed."

We hold that this Court has jurisdiction to entertainpetitioner's federal claims.

II.

The Association both urges that it is constitutionallyentitled to resist official inquiry into its membership lists,and that it may assert, on behalf of its members, a rightpersonal to them to be protected from compelled dis-closure by the State of their affiliation with the Associa-tion as revealed by the membership lists. We think thatpetitioner argues more appropriately the rights of itsmembers, and that its nexus with them is sufficient topermit that it act as their representative before this

170



Court. In so concluding, we reject respondent's argu-ment that the Association lacks standing to assert hereconstitutional rights pertaining to the members, who arenot of course parties to the litigation.

To limit the breadth of issues which must be dealt within particular litigation, this Court has generally insistedthat parties rely only on constitutional rights which arepersonal to themselves. Tileston v. Ullman, 318 U. S.44; Robertson and Kirkham, Jurisdiction of the SupremeCourt (1951 ed.), § 298. This rule is related to thebroader doctrine that constitutional adjudication shouldwhere possible be avoided. See Ashwander v. TennesseeValley Authority, 297 U. S. 288, 346-348 (concurringopinion). The principle is not disrespected where con-stitutional rights of persons who are not immediatelybefore the Court could not be effectively vindicatedexcept through an appropriate representative before theCourt. See Barrows v. Jackson, 346 U. S. 249, 255-259;Joint Anti-Fascist Refugee Committee v. McGrath, 341U. S. 123, 183-187 (concurring opinion).

If petitioner's rank-and-file members are constitution-ally entitled to withhold their connection with the Asso-ciation despite the production order, it is manifest thatthis right is properly assertable by the Association. Torequire that it be claimed by the members themselveswould result in nullification of the right at the verymoment of its assertion. Petitioner is the appropriateparty to assert these rights, because it and its membersare in every practical sense identical. The Association,which provides in its conftitution that "[a]ny personwho is in accordance with [its] principles and pol-icies . . ." may become a member, is but the mediumthrough which its individual members seek to make moreeffective the expression of their own views. The reason-able likelihood that the Association itself through dimin-ished financial support and membership may be adversely

171

OCTOBER TERM, 1957.


affected if production is compelled is a further factorpointing towards our holding that petitioner has standingto complain of the production order on behalf of its mem-bers. Cf. Pierce v. Society of Sisters, 268 U. S. 510,534-536.

III.

We thus reach petitioner's claim that the productionorder in the state litigation trespasses upon fundamentalfreedoms protected by the Due Process Clause of theFourteenth Amendment. P~titioner argues that in viewof the facts and circumstances shown in the record, theeffect of compelled disclosure of the membership lists willbe to abridge the rights of its rank-and-file members toengage in lawful association in support of their commonbeliefs. It contends that governmental action which,although not directly suppressing association, neverthelesscarries this consequence, can be justified only upon someoverriding valid interest of the State.

Effective. advocacy of both public and private pointsof view, particularly controversial ones, is undeniablyenhanced by group association, as this Court has morethan once recognized by remarking upon the close nexusbetween the freedoms of speech and assembly. De Jongev. Oregon, 299 U. S. 353, 364; Thomas v. Collins, .323U. S. 516, 530. It is beyond debate that freedom toengage in association for the advancement of beliefs andideas is an inseparable aspect of the "liberty" assured bythe Due Process Clause of the Fourteenth Amendment,which embraces freedom of speech. See Gitlow v. NewYork, 268 U. S. 652, 666; Palko v. Connecticut, 302 U. S.319, 324; Cantwell v. Connecticut, 310 U. S. 296, 303;Staub v. City of Baxley, 355 U. S. 313, 321. Of course,it is immaterial whether the beliefs sought to be advancedby association pertain to political, economic, religious orcultural matters, and state action which may have the

172

N. A. A. C. P. v. ALABA1VA. 461


effect of curtailing the freedom to associate is subject tothe closest scrutiny.

The fact that Alabama, so far as is relevant to thevalidity of the contempt judgment presently underreview, has taken no direct action, cf. De Jonge v. Oregon,supra; Near v. Minnesota, 289 U. S. 697, to restrict theright of petitioner's members to associate freely, does notend inquiry into the effect of the production order.See American Communications Assn. v. Douds, 339 U. S.382, 402. In the domain of these indispensable liberties,whether of speech, press, or association, the decisionsof this Court recognize that abridgment of such rights,even though unintended, may inevitably follow fromvaried forms -of governmental action. Thus in Douds,the Court stressed that the legislation there chal-lenged, which on its face sought to regulate labor unionsand to secure stability in interstate commerce, wouldhave the practical effect "of discouraging" the exercise ofconstitutionally protected political rights, 339 U. S., at393, and it upheld the statute only after concluding thatthe reasons advanced for its enactment were constitu-tionally sufficient to justify its possible deterrent effectupon such freedoms. Similar recognition of possible un-constitutional intimidation of the free exercise of -theright to advocate underlay this Court's narrow construc-tion of the authority of a congressional committee inves-tigating lobbying and of an Act regulating lobbying,although in neither case was there an effort to suppressspeech. United States v. Rumely, 345 U. S. 41, 46-47;United States v. Harriss, 347 U. S. 612, 625-626. Thegovernmental action challenged may appear to be totallyunrelated to protected liberties. Statutes imposing taxesupon rather than prohibiting particular activity have beenstruck down when perceived to have the consequence ofunduly curtailing the liberty of freedom of press assuredunder the Fourteenth Amendment. Grosjean v. American

173

OCTOBER TERM, 1957.


Press Co., 297 U. S. 233; Murdock v.. Pennsylvania, 319U. S. 105..It is hardly a novel perception that compelled dis-closure of affiliation with groups engaged in advocacymay constitute as effective a restraint on freedom of asso-ciation as the forms of governmental action in the casesabove were thought likely to produce upon the particularconstitutional rights there involved. This Court hasrecognized the vital relationship between freedom to asso-ciate and privacy in one's associations. When referringto the varied forms of governmental action which mightinterfere with freedom of assembly, it said in AmericanCommunications Assn. v. Douds, supra, at 402: "A re-quirement that adherents of particular religious faiths orpolitical parties wear identifying arm-bands, for example,is obviously of this nature." Compelled disclosure ofmembership in an organization engaged in advocacyof particular beliefs is of the same order. Inviolability ofprivacy in group association may in many circumstancesbe indispensable to preservation of freedom of associa-tion, particularly where a group espouses dissident be-liefs. Cf. United States v. Rumely, supra, at 56-58(concurring opinion).

We think that the production order, in the respectshere drawn in question, must be regarded as entailing thelikelihood of a substantial restraint upon the exercise bypetitioner's members of their right to freedom of asso-ciation. Petitioner has made an uncontroverted showingthat on past occasions revelation of the identity of itsrank-and-file members has exposed these members toeconomic reprisal, loss of employment, threat of physicalcoercion,. and -other manifestations of public hostility.Under these circumstances, we think it apparent thatcompelled disclosure of petitioner's Alabama membershipis likely to affect adversely the ability of petitioner and

174



its members to pursue their collective effort to fosterbeliefs which they admittedly have the right to advocate,in that it may induce members to withdraw from theAssociation and dissuade others from joining it becauseof fear of exposure of their beliefs shown through theirassociations and of the consequences of this exposure.

It is not sufficient to answer, as the State does here,that whatever repressive effect compulsory disclosure ofnames of petitioner's members may haye upon participa-tion by Alabama citizens in petitioner's activities followsnot from state action but from private community pres-sures. The crucial factor is the interplay of govern-mental and private action, for it is only after the initialexertion of state power represented by the productionorder that private action takes hold.

We turn to the final question whether Alabama hasdemonstrated an interest in obtaining the disclosures itseeks from petitioner which is sufficient to justify thedeterrent effect which we have concluded these disclosuresmay well have on the free exercise by petitioner's mem-bers of their constitutionally protected right of associa-tion. See American Communications Assn. v. Douds,supra, at 400; Schneider v. State, 308 U. S. 147, 161.Such a ". . . subordinating interest of the State must becompelling," Sweezy v. New Hampshire, 354 U. S. 234,265 (concurring opinion). It is not of moment that theState has here acted solely through its judicial branch,for whether legislative or judicial, it is still the applicationof state power which we are asked to scrutinize.

It is important to bear in mind that petitioner assertsno right to absolute immunity from state investigation,and no right to disregard Alabama's laws. As shown byits substantial compliance with the production order, peti-tioner does not deny Alabama's right to obtain from itsuch information as the State desires concerning the pur-

175

OCTOBER TERM, 1957.


poses of the Association and its activities within the State.Petitioner has not objected to divulging the identity ofits members who are employed by or hold official positionswith it., It has urged the rights solely of its ordinary rank-and-file members. This is therefore not analogous to acase involving the interest of a State in protecting itscitizens in their dealings with paid solicitors or agentsof foreign corporations by requiring identification. SeeCantwell v. Connecticut, supra, at 306; Thomas v.Collins, supra, at 538.

Whether there was "justification" in this instanceturns solely on the substantiality of Alabama's interestin obtaining the membership lists. During the course ofa hearing before the Alabama Circuit Court on a motionof petitioner to set aside the production order, the StateAttorney General presented at length, under examinationby petitioner, the State's reason for requesting the mem-bership lists. The exclusive purpose was "to determinewhether petitioner was conducting intrastate business inviolation of the Alabama foreign corporation registra-tion statute, and the membership lists were expected tohelp resolve this question. The issues in the litigationcommenced by Alabama by its bill in equity were whetherthe character of petitioner and its activities in Alabamahad been such as to make petitioner subject to the regis-tration statute, and whether the extent of petitioner'sactivities without qualifying suggested its permanentouster from the State. Without intimating the slightestview upon the merits of these issues, we are unable toperceive that the disclosure of the names of petitioner'srank-and-file members has a substantial bearing on eitherof them. As matters stand in the state court, petitioner(1) has admitted its presence and conduct of activitiesin Alabama since 1918; (2) has offered to comply in allrespects with the state qualification statute, although pre-

176



serving its contention that the statute does not applyto it; and (3) has apparently complied satisfactorily withthe production order, except for the membership lists,by furnishing the Attorney General with varied businessrecords, its charter and statement of purposes, the namesof all of its directors and officers, and with the total num-ber of its Alabama members and the amount of their dues.These last items would not on this record appear subjectto constitutional challenge and have been furnished, butwhatever interest the State may have in obtaining namesof ordinary members has not been shown to be sufficientto overcome petitioner's constitutional objections to theproduction order.

From what has already been said, we think it apparentthat Bryant v. Zimmerman, 278 U. S. 63, cannot be reliedon in support of the State's position, for that case involvedmarkedly different considerations in terms of the interestof the State in obtaining disclosure. There, this Courtupheld, as applied to a member of a local chapter of theKu Klux Klan, a New York statute requiring anyunincorporated association which demanded an oath as acondition to membership to file with state officials copiesof its ". . . constitution, by-laws, rules, regulations andoath of membership, together with a roster of itsmembership and a list of its officers for the current year."N. Y. Laws 1923, c. 664, §§ 53, 56. In its opinion, theCourt took care to emphasize the nature of the organiza-tion which New York sought to regulate. The decisionwas based on the particular character of the Klan's activ-ities, involving acts of unlawful intimidation and violence,which the Court assumed was before the state legislaturewhen it enacted .the statute, and of which the Court itselftook judicial notice. Furthermore, the situation beforeus is significantly different from that in Bryant, becausethe organization there had made no effort to comply with

177

OCTOBER TERM, 1957.


any of the requirements of New York's statute but ratherhad refused to furnish the State with any information asto its local activities.

We hold that the immunity from state scrutiny ofmembership lists which the Association claims on behalfof its members is here so related to the right of the mem'bers to pursue their lawful private interests privately andto associate, freely with others in so doing as to comewithin the protection of the Fourteenth Amendment.And we conclude that Alabama has fallen short of show-ing a controlling justification for the deterrent effect onthe free enjoyment of the right to associate which dis-closure of membership lists is likely to have. Accord-ingly, the judgment of civil contempt and- the $100,000fine which resulted from petitioner's refusal to complywith the production order in this respect must fall.

IV.

Petitioner joins with its attack upon the productionorder a challenge to the constitutionality of the State'sex parte temporary restraining order preventing it fromsoliciting support in Alabama, and it asserts that theFourteenth Amendment precludes such state action.But as noted above, petitioner has never received a hear-ing on the merits of the ouster suit, and we do not con-sider these questions properly here. The Supreme Courtof Alabama noted in its denial of the petition for certiorarithat such petition raised solely a question pertinent to thecontempt adjudication. "The ultimate aim and purposeof the litigation is to determine the right of the stateto enjoin petitioners from doing business in Alabama.That question, however, is not before us in this proceed-ing." 265 Ala., at 352. 91 So. 2d. at 216. The propermethod for raising questions in the state appellate courtspertinent to the underlying suit for an injunction appears

178



to be by appeal, after a hearing on the merits and finaljudgment by the lower state court. Only from the dis-position of such an appeal can review be sought here.

For the reasons stated, the judgment of the SupremeCourt of Alabama must be reversed and the caseremanded for proceedings not inconsistent with thisopinion.

Reversed.

179

180

181

182

183

184

185

186

187

188

189

190

191

192

193

194

195

196

MINNESOTA LAW REVIEW

THE AMERICAN BAR ASSOCIATION

ITS ORGANIZATION, HISTORY AND ACHIEVEMENTS

By W. THOMAS KEMP*

T HE American Bar Association holds its forty-sixth annualmeeting in Minneapolis, Minnesota, August 29-31, 1923.

It is therefore appropriate that the whole bar of Minnesota,who have so courteously invited the National Association toMinneapolis this year, should know something about the or-ganization, history and achievements of the largest and oneof the oldest organizations of lawyers in the world. A consid-erable portion of the bar of Minnesota are already membersof the National Association, and to them many of the thingshereinafter stated are well known; but it is hoped that all reputablelawyers of the great state of Minnesota will be sufficiently in-terested in the affairs of the National Association to join itsranks, and thereby assist in the important work which the futurehas in store for the advancement of the profession and the wel-fare of the nation.

ORGANIZATION

On July 1st, 1878, Benjamin H. Bristow, Kentucky; WilliamM. Evarts, New York; George Hoadly, Ohio; Henry Hitchcock,Missouri; Carleton Hunt, Louisiana; Richard D. Hubbard, Con-necticut; Alexander R. Lawton, Georgia; Richard C. McMurtrie,Pennsylvania; Stanley Mathews, Ohio; Edward J. Phelps, Ver-mont; John K. Porter, New York; Lyman Trumbull, Illinois;Charles R. Train, Massachusetts and J. Randolph Tucker, Vir-ginia, issued a call for a conference to be held at Saratoga Springs,New York, August 21st, 1878, "to consider the feasibility andexpediency of establishing an American Bar Association." Itwas then stated that "a body of delegates, representing the pro-fession in all parts of the country, which should meet annually,for a comparison of views and friendly intercourse, might benot only a pleasant thing for those taking part in it, but ofgreat service in helping to assimilate the laws of the differentstates, in extending the benefit of true reforms and in publishingthe failure of unsuccessful experiments in legislation."

In pursuance of this call, seventy-five leading lawyers ofthe nation met at Saratoga Springs on August "21, 1878, andorganized the American Bar Association, and proceeded to hold

*Of Baltimore, Maryland; Secretary of the American Bar Asso-ciation.

197

AMERICAN BAR ASSOCIATION

its first annual meeting. Twenty-one states were represented,New York leading with ten lawyers, Connecticut following withnine, Massachusetts with eight, Maryland with seven, andLouisiana, Pennsylvania and Vermont with six each. The trans-Mississippi states had but a single representative, U. M. Roseof Arkansas, afterwards as President of the Association. Ofthese charter members of the Association, four alone survive,Simeon E. Baldwin of Connecticut, and Francis Rawle of Penn-sylvania, both of whom have since served as presidents of theAssociation, Edward T. Merrick of Louisiana, and Alfred Hem-enway of Massachusetts.

The organization meeting was presided over by BenjaminH. Bristow of Kentucky. Francis Rawle of Pennsylvania, andIsaac Grant Thompson of Albany, N. Y., were named secretariesof the conference. The constitution then adopted stated the pur-poses of the Association as follows:

"Its object shall be to advance the science of jurisprudence,promote the administration of justice and uniformity of legisla-tion throughout the Union, uphold the honor of the professionof the law, and encourage cordial intercourse among the mem-bers of the American Bar."

This expression of the purposes of the Association has re-mained without change throughout nearly a half century of itsexistence.

The permanent officers of the Association elected at thefirst annual meeting were James 0. Broadhead of Missouri,President, Edward Otis Hinkley of Maryland, Secretary, andFrancis Rawle of Pennsylvania, Treasurer. In addition to theseofficers, the Association selected in pursuance of its constitutiona vice-president from each state, a Council of one member fromeach state, and an Executive Committee of five members, in-cluding the secretary and treasurer ex officio. Standing com-mittees of five members each were also appointed by the presi-dent on jurisprudence; Judicial Administration and RemedialProcedure; Legal Education and Admission to the Bar; Com-mercial Law; International Law; Publications and Grievances.

HISTORYFrom 1878 to 1922, the Association has held forty-five suc-

cessive meetings. The first eleven of these meetings were heldat Saratoga Springs, New York, the maximum attendance beingone-hundred and forty-nine members. In 1889, the Association

198


met in Chicago, Illinois, and from that year until 1903, themeetings were held in even years at Saratoga Springs, and inodd years at some other place, varying from Boston, Massachu-setts, to Denver, Colorado. In 1904, the year of the World'sFair in celebration of the anniversary of the Louisiana Pur-chase, the meeting was held in St. Louis, in conjunction withthe International Congress of Jurists and Lawyers. Thereafter,the place of meeting swung to different parts of the nation, asfar East as Portland, Maine, as far West as Seattle and SanFrancisco, and as far South as Chattanooga, Tennessee. Onemeeting only has been held outside of the country. In 1913, theAssociation met at Montreal, Canada, where a meeting twice aslarge as any of its predecessors was held in the midst of the de-lightful hospitality of the Canadian Bar, with the Lord Chan-cellor of England delivering the annual address. In 1917, theAssociation celebrated the fortieth year of its existence by return-ing to Saratoga Springs. The largest meeting in the history ofthe Association was held in San Francisco in 1922. Four specialtrains were run from Chicago to the Pacific Coast, for the accom-modation of the Eastern members of the Association.

The Association has always pursued the policy of electingits president for a term of one year only. The roster of formerpresidents includes the names of Benjamin H. Bristow, WilliamAllen Butler, David Dudley Field, John F. Dillon, James C.Carter, Joseph H. Choate, Alton B. Parker and Elihu Root ofNew York, Francis Rawle, Walter George Smith and HamptonL. Carson of Pennsylvania, James 0. Broadhead, James Hager-man and Frederick W. Lehmann of Missouri, Frank B. Kelloggand Cordenio A. Severance of Minnesota, Alexander P. Law-ton and Peter W. Meldrim of Georgia, Thomas J. Semmes, Wil-liam Wirt Howe and Edgar H. Farrar of Louisiana, SimeonE. Baldwin of Connecticut, John Randolph Tucker and HenrySt. George Tucker of Virginia, Charles F. Manderson of Ne-braska, George R. Peck, J. M. Dickinson, Stephen S. Gregoryand George T. Page of Illinois, George Sutherland of Utah,Moorfield Storey of Massachusetts, and William H. Taft, nowChief Justice of the United States.

During the forty-six years of its existence, there have beenbut two treasurers of the Association, Francis Rawle of Phila-delphia, Pennsylvania, from 1878 to 1902, and Frederick E.Wadhams of Albany, New York, from 1902 to the present time.

199


During the same period, there have been four secretaries, Ed-ward Otis Hinkley, from 1878 to 1893, and his son, John Hinkley,from 1893 to 1909, George Whitelock, from 1909 to 1920, andhis partner, W. Thomas Kemp, from 1920 to the present time,all of Baltimore, Maryland.

It is impossible, within the limits of this paper, to makemore than a passing reference to the long list of addresses readat the various meetings of the Association. Usually, at eachmeeting, the addresses have included the president's address, theannual address and one or two other papers upon timelytopics. Until 1913,. the president's address each year discussedthe most noteworthy changes in the statute law on points ofgeneral interest, made in the several states and by Congressduring the preceding year. Thereafter, the president selectedhis own subject. In 1914, William Howard Taft delivered thepresident's address on "Some Needed Federal Legislation.' In1916, Elihu Root spoke on "Public Service by the Bar." In 1917George Sutherland discussed "Private Rights and GovernmentControl." In 1920, Hampton L. Carson spoke upon "The Evolu-tion of Representative Constitutional Government," and in 1921(in place of the deceased president) James M. Beck read a paperon "The Spirit of Lawlessness." The last president's addresswas by Cordenio A. Severance on "The Constitution and In-dividualism."

The list of annual addresses commences in 1879 with EdwardJ. Phelps, who spoke on "John Marshall," and continues to 1922when Calvin Coolidge discussed "The Limitations of the Law."During this period, annual addresses of interest and importancehad been delivered by John F. Dillon, Simeon E. Baldwin, James

C. Carter, William H. Taft, Lord Russell of Killowen, Joseph

H. Choate, George R. Peck, John G. Carlisle, Alfred Hemenway,

Alton B. Parker, Rt. Hon. James Bryce, Woodrow Wilson, Wil-

liam B. Hornblower, Frank B. Kellogg, Lord Chancellor Haldane,Elihu Root, Joseph W. Bailey, Albert J. Beveridge, Charles

Evans Hughes, John W. Davis, and others.

In recent years, the Association has selected many of its

speakers from foreign countries. Without attempting to furnish

a complete list, we have bad the pleasure of hearing Sir Wm.

Rann Kennedy and Sir Frederick Pollock, of England, Rt. Hon.

Sir Charles Fitz-Patrick, Chief Justice of the Dominion of

Canada, Rt. Hon. Romulo S. Naon, Ambassador from the Argen-

200


tine Republic to the United States, Gaston De Leval of Belgium,Tsunejiro Miyaoka of Japan, Emilio Guglielmotti of Italy, SirAuckland Geddes, Viscount Cave, and Sir John A. Simon, ofEngland, Lord Shaw of Dunfermline, Scotland, and M. HenryAubepin of Paris, France.

The Association has always closed its meetings with an annualdinner. In 1878, eighty-six members were present at SaratogaSprings; John B. H. Latrobe of Maryland presided. In 1922, tenhundred and thirty members were present at the annual dinnerat San Francisco. The speakers were Beverly L. Hodghead ofSan Francisco, Rt. Hon. Lord Shaw of Dunfermline, M. HenryAubepin, of Paris, John B. M. Baxter K. C. M. P., of St. John,N. B., John W. Davis of West Virginia, Senator Cornelius Coleof Los Angeles, and the Chief Justice of the United States.

A unique incident at the last annual dinner was the clearand forcible address of Senator Cole, delivered on the eve ofhis hundredth birthday. Coming to California with the 49'ers,Senator Cole began practicing law a year or two later in SanFrancisco. Some years later, he was elected to the United StatesSenate, and while in public service at Washington during theCivil War, traveled to Gettysburg with Abraham Lincoln, andsat on the platform with him when Lincoln delivered his im-mortal Gettysburg speech.

GROWTH OF TiE ASSOCIATION

The Association commenced its existence in 1878 with 75charter members, which was increased that year to 289. In1888, the total membership was 752. In 1898, the number was1496. In 1908, there were 3585 members. In 1918, there were10,995. And in 1923, approximately 20,000 active members.

As a further indication of the growth of the activities of theAssociation, the treasurer's report for 1878 shows total receiptsof $1,065.10, over two-thirds of which was unexpended, andcarried over for the next year. In 1922, the treasurer's totalreceipts amounted to $120,639.94, and disbursements $117,813.81.

PUBLICATIONS

From the beginning, the Association has published an annualreport. The first annual report is a volume of 49 pages. The lastannual volume contains 1028 pages.

In 1915, the Association commenced the publication of aquarterly Journal, which was continued in this form until 1920,

201


when the recommendation of a special committee was adoptedand a monthly periodical of much wider range was initiatedunder the direction of an editor-in-chief, and a board of fiveassociate editors. Great credit is due to the foresight and sagacityof the late Stephen S. Gregory of Chicago, first editor-in-chiefof the Journal, for the successful launching of this periodical,and the Association as well as the profession at large, owe a debtof gratitude to the present editor-in-chief, Edgar B. Tolman ofChicago, under whose administration, the scope and characterof the monthly journal has been extended and improved.

COMMITrEES, SECTIONS AND ALLIED BODIESThe American Bar Association functions largely through its

executive, standing and special committees, its various sectionsand its allied bodies.

The executive committee now is composed of eight electedmembers, and five ex officio members, including the president,last retiring president, chairman of the general council, secre-tary and treasurer, and is vested by the constitution with fullpower and authority in the, interval between meetings of theAssociation, to do all acts and perform all functions which theAssociation itself may do or perform, except to amend the con-stitution and by-laws of the Association. The last meet-ing of the executive committee, held at the Hot Springs,Arkansas, was in session three days, and the record shows thatover fifty distinct subjects were considered and acted upon bythe committee during that time. There are now standing com-mittees on Commerce, Trade and Commercial Law, InternationalLaw, Insurance Law, Jurisprudence and Law Reform, Legal Aid,Professional Ethics and Grievances, Admiralty and MaritimeLaw, Publicity, Publications, Noteworthy Changes in StatuteLaw, Memorials and Membership. There are special committeeson Uniform Judicial Procedure, Finance, Change of Date ofPresidential Inauguration, Classification and Restatement of theLaw, Law of Aeronautics, Removal of Government Liens onReal Estate, Federal Taxation, Law Enforcement, American Citi-zenship and Judicial Ethics. All of these committees conducttheir work on special subjects submitted to them throughout theyear, and many of them submit printed reports at each annualsession of the Association.

In 1893, the Association created its first section of the subjectof Legal Education. This was followed in 1895 by the section

202


of Patent Law, and in 1908, by the Comparative Law Bureau,in 1913, by the Judicial Section, in 1915, the section of PublicUtility Law, and in 1919 the section of Criminal Law andCriminology. All of these sections hold their meetings at thesame place and time, but not in conflict with the sessions of theNational Association. Any member of the Association is eligibleto membership in the sections, which deal respectively with thebranches of law indicated by the names of the sections.

In 1915, upon the suggestion of the then president of theAssociation, Elihu Root, the first conference of Bar AssociationDelegates was held on the day preceding the meeting of theAssociation. To this conference each State Bar Association wasinvited to send three delegates, and each local Bar Associationtwo delegates. The success of the Conference was instantaneous,and annual conferences of increasing importance have resulted.By the new constitution of the Association, adopted in 1919,the conference of Bar Association Delegates was admitted for-mally as a section of the Association.

All sections have a chairman and other officers as providedin the constitution. Each of them is permitted to adopt its ownby-laws and to conduct its own procedure, the only limitationbeing that action taken by a section must be reported to andapproved by the Association, before such action becomes bindingon the Association.

The National Conference of Commissioners on UniformState Laws held its first annual meeting in 1892 at SaratogaSprings, for three days immediately preceding the meeting of theAssociation. This conference is not a section of the Associa-tion, but its work in promoting the uniform legislation is infurtherance of one of the declared objects of the Association,and a close affiliation has always existed between the two or-ganizations. The conference has drafted and approved thirty-eight acts, some of which have been superseded, leaving at thepresent a total of thirty acts which have been recommended tothe states for adoption.

A summary of the proceedings of each of the sections aswell as of the conference of Commissioners on Uniform StateLaws, is published in each annual volume of the Associationreports.

SOME RECENT ACHIEVEMENTS

This article will be completed with a mere reference to some

203

AFRICAN BAR ASSOCIATION

of the more important achievements accomplished or fostered bythe Association:

Canons of Ethics. The American Bar Association hat for-mulated and promulgated the standard code of professional ethics.First adopted in 1908, the Canons of Ethics have appeared ineach succeeding annual report of the Association. Many thous-ands of copies of the canons have been furnished to the LawSchools, Bar Associations, Law Libraries, individual lawyers andall persons applying therefor. These Canons of Ethics have beenadopted by the authorities in many of the states, and they areuniversally recognized as the standard declaration of professionalconduct on the part of the lawyers of the country.

Code of Judicial Ethics. In response to a growing demand,the Association two years ago undertook the formation of a codeof judicial ethics, and for this purpose the executive committeeof the Association appointed a special committee, consisting of twojudges and three lawyers. The committee has adopted a pre-liminary draft of the code of judicial ethics, which have beenpublished in the February, 1923, Journal, pages 73 to 76. Allmembers of the Association have been invited to submit sugges-tions concerning the proposed code and it is understood that afinal report from Chief Justice Taft, as Chairman of the com-mittee, will be submitted at the Minneapolis meeting.

Judicial Recall Opposed. From 1911 to 1919, the Associa-tion, through its Special Committee to Oppose Judicial Recall,assumed a commanding position in opposition to the heresy ofjudicial recall and all kindred measures. By the instrumentalityof this committee, the Association conducted a vigorous cam-paign throughout the country, and particularly in those stateswhere the doctrine had obtained a foothold, with the result thatthe growing menace of an extension of this movement was com-pletely removed. By 1919 the movement itself had been so farfrustrated that with the submission of the report of the specialcommittee at the Boston meeting in 1919, it was deemed un-necessary to continue further the activities of the committee.During the eight years of active opposition to judicial recall,Rome G. Brown of Minneapolis, Chairman of the special com-mittee, directed the campaign in behalf of the Association.

Standards of Legal Education. In 1921 the Section of LegalEducation reported to the Association, and the Associationadopted with overwhelming approval, certain requirements relat-

204


ing to preliminary education and certain standards of legal in-struction, and also provided for the publication of a list of lawschools complying with such standards. The Association there-upon authorized the calling of a special conference on legal edu-cation at which the various state and local bar associations wereinvited to send delegates. This conference was held in Wash-ington, D. C., February 23-24, 1922, when, after a full discus-sion, the standards of legal education were adopted and recom-mended to the authorities in the various states for appropriatelegislation in support thereof.

Restatement of the Law. As above stated, the Associationhas a special committee on Classification and Restatement of theLaw. Spirited by the activities of this committee and sponsoredby the Association of American Law Schools, a voluntary com-mittee on the Establishment of a Permanent Organization forthe Improvement of the Law called together a representativegathering of the American Bar which was held in Washington,D. C.,. on February 23rd, 1923, to consider the report and rec-ommendations of the voluntary committee. The conference thuscalled resulted in the formation and incorporation of the AmericanLaw Institute of which Elihu Root is Honorary President,George W. Wickersham, President, and William Draper Lewis,Secretary. The Institute is governed by a council of twenty-onemembers under whose guidance this great and important workhas been undertaken. A meeting of the Council of the AmericanLaw Institute will be held at Minneapolis at the time of themeeting of the Association. The Institute is independently or-ganized and has been liberally endowed by the Carnegie Founda-tion.

Law Enforcement. The alarming growth of crime and theprevalence of increased lawlessness in this country was respon-sible for the recent creation of a special committee on Law En-forcement, and this committee submitted a preliminary reportwith certain recommendations at the 1922 meeting of the Asso-ciation. Since that meeting, the committee has continued itsinvestigations in this country and the merfibers thereof haverecently left on a European trip to study conditions abroad. Aspecial position on the program for the Minneapolis meetingwill be assigned to the further report of this important committee,which will be submitted by former Governor Charles S. Whitmanof New York, its present Chairman.

205


American Citizenship. As an antidote for the teachings ofdangerous fanatics and the resulting disrespect for law, the Asso-ciation has undertaken an active campaign designed to instillin the public mind an understanding of the fundamental prin-ciples of American Constitution and an appreciation of the bene-fits of American citizenship. This campaign has been con-ducted by a special committee appointed for that purpose, andthe Chairman of the committee-R. E. L. Saner of Dallas, Texas-will report on the activities and accomplishments of his com-mittee.

World Court. Upon the suggestion of James Brown Scott,chairman of the committee on International Law, the Associationat its 1922 meeting, adopted resolutions favoring participationby the United States in the permanent Court of InternationalJustice, and the committee was instructed to formulate and reportto the Association at its next meeting such amendments orchanges in the statute under which the said court is now consti-tuted as may, in the judgment of the committee, make it possiblefor the United States to accept membership therein. In pur-suance of this instruction, the Committee on International Lawwill submit its recommendations at the Minneapolis meeting.

The above enumeration of some of the achievements of theAssociation and certain of the problems still under considerationis largely b.y way of illustration, and is by no means completeor exclusive. Each and all of the standing and special committeesand sections of the Association have performed and are nowdoing importarit work in the development and reform of Amer-ican jurisprudence. The Association has grown rapidly notonly in numbers but in its activities and usefulness. Withoutindulging in political or controversial subjects, this great workingorganization of American lawyers has taken its proper placeon the firing line of civilization, and keeping pace with the generalprogress of the nation, it aims to promote and develop the scienceof government restrained by law.

206

Code of VirginiaTitle 54.1. Professions and OccupationsChapter 39. Attorneys § 54.1-3900. Practice of law; student internship program;definition Persons who hold a license or certificate to practice law under the laws of this Commonwealthand have paid the license tax prescribed by law may practice law in the Commonwealth. Any person authorized and practicing as counsel or attorney in any state or territory of theUnited States, or in the District of Columbia, may for the purpose of attending to any case he mayoccasionally have in association with a practicing attorney of this Commonwealth practice in thecourts of this Commonwealth, in which case no license fee shall be chargeable against suchnonresident attorney. Nothing herein shall prohibit the limited practice of law by military legal assistance attorneyswho are employed by a military program providing legal services to low-income military clientsand their dependents pursuant to rules promulgated by the Supreme Court of Virginia. Nothing herein shall prohibit a limited practice of law under the supervision of a practicingattorney by (i) third-year law students or (ii) persons who are in the final year of a program ofstudy as authorized in § 54.1-3926, pursuant to rules promulgated by the Supreme Court ofVirginia. Nothing herein shall prohibit an employee of a state agency in the course of his employmentfrom representing the interests of his agency in administrative hearings before any state agency,such representation to be limited to the examination of witnesses at administrative hearingsrelating to personnel matters and the adoption of agency standards, policies, rules andregulations. Nothing herein shall prohibit designated nonattorney employees of the Department of SocialServices from completing, signing and filing petitions and motions relating to the establishment,modification, or enforcement of support on forms approved by the Supreme Court of Virginia inDepartment cases in the juvenile and domestic relations district courts. Nothing herein shall prohibit designated nonattorney employees of a local department of socialservices from appearing before an intake officer to initiate a case in accordance with subsection Aof § 16.1-260 on behalf of the local department of social services. Nothing herein shall prohibit designated nonattorney employees of a local department of socialservices from completing, signing, and filing with the clerk of the juvenile and domestic relationsdistrict court, on forms approved by the Supreme Court of Virginia, petitions for foster carereview, petitions for permanency planning hearings, petitions to establish paternity, motions toestablish or modify support, motions to amend or review an order, or motions for a rule to showcause. As used in this chapter "attorney" means attorney-at-law. Code 1950, § 54-42; 1972, c. 391; 1974, c. 456; 1976, c. 277; 1988, c. 765; 1991, c. 650; 1994, c. 30;1998, c. 796;2008, cc. 136, 845;2016, c. 704.

1 7/8/2016

207

http://law.lis.virginia.gov/vacode/54.1-3926/

http://law.lis.virginia.gov/vacode/16.1-260/

http://lis.virginia.gov/cgi-bin/legp604.exe?941+ful+CHAP0030








Code of VirginiaTitle 54.1. Professions and OccupationsChapter 39. Attorneys § 54.1-3910. Organization and government of Virginia State Bar The Supreme Court may promulgate rules and regulations organizing and governing the VirginiaState Bar. The Virginia State Bar shall act as an administrative agency of the Court for thepurpose of investigating and reporting violations of rules and regulations adopted by the Courtunder this article. All advisory opinions issued by the Virginia State Bar's Standing Committeeson Legal Ethics, Lawyer Advertising and Solicitation, and Unauthorized Practice of Law shall beincorporated into the Code of Virginia pursuant to § 30-154. All persons engaged in the practiceof law in the Commonwealth shall be active members in good standing of the Virginia State Bar. Code 1950, § 54-49; 1974, c. 536; 1991, c. 564; 2002, c. 306.

1 7/8/2016

208

http://law.lis.virginia.gov/vacode/30-154/


The Virginia State Bar | Professional Guidelines

http://www.vsb.org/pro-guidelines/index.php//main/print_view 3/259

Rules of Professional Conduct

Preamble: A Lawyer's ResponsibilitiesA lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having specialresponsibility for the quality of justice.

A lawyer may perform various functions. As advisor, a lawyer provides a client with an informed understanding of the client'slegal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client'sposition under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistentwith requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergentinterests as an advisor and, to a limited extent, as a spokesperson for each client. As third party neutral, a lawyer representsneither party, but helps the parties arrive at their own solution. As evaluator, a lawyer examines a client's legal affairs andreports about them to the client or to others.

In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communicationwith a client concerning the representation. A lawyer should keep in confidence information relating to representation of aclient except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer'sbusiness and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass orintimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, otherlawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also alawyer's duty to uphold legal process.

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of servicerendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyondits use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should bemindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor,cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. Alawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive andprocedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyershould strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legalprofession's ideals of public service.

A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usuallyharmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and atthe same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarilyserves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, whenthey know their communications will be private.

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arisefrom conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining anupright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving suchconflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must beresolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.

209



The legal profession is largely selfgoverning. Although other professions also have been granted powers of selfgovernment,the legal profession is unique in this respect because of the close relationship between the profession and the processes ofgovernment and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession isvested largely in the courts.

To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated.Selfregulation also helps maintain the legal profession's independence from government domination. An independent legalprofession is an important force in preserving government under law, for abuse of legal authority is more readily challenged bya profession whose members are not dependent on government for the right to practice.

The legal profession's relative autonomy carries with it special responsibilities of selfgovernment. The profession has aresponsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or selfinterested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyershould also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independenceof the profession and the public interest which it serves.

Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers oftheir relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define thatrelationship.

ScopeThe Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legalrepresentation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These defineproper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and defineareas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyerchooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between thelawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that theydefine a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to theRules but provide guidance for practicing in compliance with the Rules.

These Rules follow the same format as the current American Bar Association Model Rules of Professional Conduct ("ABAModel Rules"), rather than the former American Bar Association Model Code of Professional Responsibility ("ABA ModelCode"), or the former Virginia Code of Professional Responsibility ("Virginia Code"). Although interpretation of similarlanguage in the ABA Model Rules by other states' courts and bars might be helpful in understanding Virginia's Rules, thoseforeign interpretations should not be binding in Virginia.

The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating tomatters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. Compliancewith the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance,secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinaryproceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for noworthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethicalpractice of law.

Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external tothese Rules determine whether a clientlawyer relationship exists. Most of the duties flowing from the clientlawyerrelationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. Butthere are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to considerwhether a clientlawyer relationship shall be established. Whether a clientlawyer relationship exists for any specific purpose

210



can depend on the circumstances and may be a question of fact.

These Rules apply to all lawyers, whether practicing in the private or the public sector. However, under various legalprovisions, including constitutional, statutory and common law, the responsibilities of government lawyers may includeauthority concerning legal matters that ordinarily reposes in the client in private clientlawyer relationships. For example, alawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether toappeal from an adverse judgment. Such authority in various respects is generally vested in the Attorney General and thecommonwealth attorneys in state government, and their federal counterparts, and the same may be true of other governmentlaw officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agenciesin intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients.They also may have authority to represent the "public interest" in circumstances where a private lawyer would not beauthorized to do so. These Rules do not abrogate any such authority.

Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. TheRules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances asthey existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain orincomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for aviolation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of theviolation, extenuating factors and whether there have been previous violations.

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has beenbreached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct throughdisciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can besubverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer'sselfassessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that anantagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in theRules should be deemed to augment any substantive legal duty of lawyers or the extradisciplinary consequences of violatingsuch a duty.

Moreover, these Rules are not intended to govern or affect judicial application of either the attorneyclient or work productprivilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on theattorneyclient privilege, clients are entitled to expect that communications within the scope of the privilege will be protectedagainst compelled disclosure. The attorneyclient privilege is that of the client and not of the lawyer. The fact that inexceptional situations the lawyer under the Rules has either a limited discretion or a limited obligation to disclose a clientconfidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that informationrelating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled onlyin accordance with recognized exceptions to the attorneyclient and work product privileges.

The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination.Permitting such reexamination would be incompatible with the general policy of promoting compliance with law throughassurances that communications will be protected against disclosure.

The Preamble and this note on Scope provide general orientation. The text of each Rule and the following Terminology sectionare authoritative and the Comments accompanying each Rule are interpretive.

Terminology"Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief maybe inferred from circumstances.

211



4.1(b) " " " " DR 7102 (A)(3); DR 7102 (A)(7)4.2 Ex Parte Communication With Represented Person DR 7103 (A)(1)

Rules 1.1 1.18 ClientLawyer RelationshipRule 1.1

CompetenceA lawyer shall provide competent representation to a client. Competent representation requires the legalknowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment

Legal Knowledge and Skill[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factorsinclude the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's trainingand experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it isfeasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. Inmany instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may berequired in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with whichthe lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Someimportant legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in alllegal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situationmay involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequaterepresentation in a wholly novel field through necessary study. Competent representation can also be provided through theassociation of a lawyer of established competence in the field in question.

[2a] Another important skill is negotiating and, in particular, choosing and carrying out the appropriate negotiatingstrategy. Often it is possible to negotiate a solution which meets some of the needs and interests of all the parties to atransaction or dispute, i.e., a problemsolving strategy.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skillordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in anemergency, however, assistance should be limited to that reasonably necessary in the circumstances, for illconsideredaction under emergency conditions can jeopardize the client's interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonablepreparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the

212



problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequatepreparation. The required attention and preparation are determined in part by what is at stake; major litigation andcomplex transactions ordinarily require more elaborate treatment than matters of lesser consequence.

Maintaining Competence[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areasof practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevanttechnology. The Mandatory Continuing Legal Education requirements of the Rules of the Supreme Court of Virginia setthe minimum standard for continuing study and education which a lawyer licensed and practicing in Virginia must satisfy.If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.

Virginia Code ComparisonRule 1.1 is substantially similar to DR 6101(A). DR 6101(A)(1) provided that a lawyer "shall undertake representationonly in matters in which . . . [t]he lawyer can act with competence and demonstrate the specific legal knowledge, skill,efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters." DR6101(A)(2) also permitted representation in matters if a lawyer "associated with another lawyer who is competent inthose matters."

Committee CommentaryThe Committee adopted the ABA Model Rule verbatim, but added the third paragraph of the Comment to make it clearthat legal representation, in which a lawyer is expected to be competent, involves not only litigation but also negotiationtechniques and strategies.

In addition, the Committee added the second sentence under Maintaining Competence Comment section to note Virginia'sMandatory Continuing Legal Education requirements.

The amendments effective March 1, 2016, added the language “in the areas of practice in which the lawyer is engaged.Attention should be paid to the benefits and risks associated with relevant technology.”

213

ASSOCIATION OF AMERICAN LAW SCHOOLS. 17

A HISTORY AND ESTIMATE OF THE ASSOCI-ATION OF AMERICAN LAW SCHOOL'

The report of the American Bar Association for 19oo (at p.569), records the following:

"Pursuant to the invitation extended by a committee of thesection of legal education of the American Bar Association,representatives from American law schools met at Saratoga onTuesday, August 28, i9oo, and held three sessions during thatday.

"Charles Noble Gregory, of the University of Wisconsin, waschosen chairman, and Ernest W. Huffcut, of Cornell University,was chosen secretary."

Thirty-five law schools were represented at the conference, buteleven others, "which had notified the committee of the appoint-ment of delegates, were not represented at the conference."

Judge George M. Sharp, of Baltimore, to whom more thanany other the meeting was due, for the committee of the section,submitted a draft of articles of association. These were dis-cussed section by section, it may be said, with some acrimonyand personal conflict. The weather was very warm,.and viewsand interests diverse, and the chairman fears that the vote ofthanks to him passed at the close of the session "for his uniformcourtesy and patience in presiding over the deliberations of theassociation," illustrated the patience and courtesy of his col-leagues rather than his own.

The articles as approved, were referred to a Committee onStyle, consisting of judge Sharp, the late judge William WirtHowe, and Dean James Barr Ames, and, as reported back by thatcommittee at the evening session with some verbal changes, "theywere adopted as read and ordered printed and sent to all lawschools."

So our association came into being. The simple and orderlyprocedure reminds us of that of the convention which framed ourFederal Constitution. The declared object of the associationwas: "The improvement of legal education -in America, es-pecially in the law schools."

At the end of nine years, the member at that time called topreside finfds himself, by the great kindness of his associates for

1Delivered as the President's address before the annual meeting ofthe Association of American Law Schools at Detroit, August 25, i9o9.214

YALE LAW JOURNAL.

which he is most grateful, chosen to the presidency of the asso-

ciation, and, by custom, required to deliver a president's address.

Under these circumstances it has seemed not inappropriate to

briefly review the history of those nine years' existence and to

seek to ascertain in what measure the association has fulfilled

its avowed object.The articles of association sought to fix a moderate standard

to which schools must within a limited time conform as a re-

quisite for membership. They provided:ist. That each school require of its students in preliminary

education "the completion of a high school course of study or itsequivalent."

2nd. That the course of study leading to its degree should

cover at least two years of thirty weeks, and after 1905 threeyears.

3rd. That the conferring of degrees "shall be conditionedupon the attainment of a grade of scholarship ascertained byexamination."

4th. Certain very limited library facilities.

It will be recalled that thirty-five schools were represented atthe first meeting. At the present time the association has thirty-sixmembers. Of these only eighteen, or exactly one-half, were repre-

sented at the initial meeting. Since the number represented atthat meeting was thirty-five, substantially one-half of those thereassembled are not now members.

The great endowed foundations of both the East and West, asHarvard, Yale, Columbia, Cornell, Pennsylvania, George Wash-

ington, Leland Stanford, Chicago, Northwestern are members,and the State universities which occupy a like position, west of

the tide water States, are also members.

The schools which failed. to become members, or to maintainmembership, did so in almost every case, if not always, becauseof inability or unwillingness to comply with the standard set.

The first subsequent meeting was held at Denver, Colorado, in

i9o. Twenty-seven schools had become members, but eighteenonly were represented. Five new schools were elected to mem-bership.

The next meeting was held at Saratoga in i9o2, and of the

thirty-two schools having membership, twenty-one were repre-sented, and five new schools were elected to membership. At the

third annual meeting at Hot Springs, Virginia, in i9o3, twenty-215

ASSOCIATION OF AMERICAN LAW SCHOOLS. i9

six of the thirty-seven schools enjoying membership were pre-sent. At the fourth annual meeting at St. Louis, in 19o4, of thethirty-five members, twenty-five were represented. At the fifthmeeting held at Narragansett Pier, in 1905, twenty-six schoolsin a membership of thirty-seven, were represented. Three schoolswere elected to membership at that meeting, raising the member-ship to forty. A resolution was adopted at this meeting requir-ing all candidates for its degree, in any school belonging to theassociation, at the time of their admission to the school, to havecompleted a four years' high school course or certain equivalents,such resolution to take effect September, i9o7.

This raised the standard doubly, in requiring a four years'course instead of the two or three years' courses which hadsufficed, and in that it required the completion of the prepara-tory studies before the law studies were begun, whereas, there-tofore, they could be finished at any time before the law degreewas conferred.

At the meeting at St. Paul, in i9o6, twenty-seven schools outof forty were represented.

At this meeting the resignation of the Baltimore, Buffalo andIllinois law schools were reported, (American Bar AssociationReport for 19o6, Part II, pp. 125-127), and no resignation hav-ing been received from another two year school (Tennessee) itwas "Resolved, That all law schools, members of this association,which maintain less than a three years' course in law shall be,and hereby are, dropped from the association."

Another school reported as failing to maintain the require-ments of the association in that it had "received and graduatedstudents who have not had a high school preliminary educationor the equivalent thereof" was, after hearing and protracted de-bate, dropped from membership in the association on a vote takenby schools of sixteen in favor to six against. This was our firstand last case of capital punishment. One new school (Texas)was admitted and we were left with thirty-six members.

At the seventh meeting held at Portland, Maine, in i9o7,twenty-five schools out of thirty-six were represented. The resig-nation of one school was accepted (Georgetown), and threeschools were elected to membership (South Dakota, South Cali-fornia and Creighton), leaving us with thirty-eight members.

The eighth annual meeting was held in i9o8 at Seattle, andonly sixteen schools were represented out of thirty-eight, the216

YALE LAW JOURNAL.

smallest meeting ever held, due doubtless, to the remoteness ofthe place of meeting from the schools.

The resignation of two schools of importance, Boston Univer-sity Law School and New York University Law School, wereaccepted. The resignations were understood to be on account ofthe unwillingness of the schools to accept the interpretation ofthe rule by which three years of law study was required, and thedoing of the three years' work in two years' time, was held notallowable. This left us with thirty-six members for the meetingof 1909.

I do not fail to appreciate that the number of schools which,in the nine years our association has existed, have advanced fromvery elementary standards to that moderate one prescribed formembership, is considerable, and that some have been able toadvance still further. It has been easier to advance in platoonsthan singly. Though not merely that, ours is largely a bureauof standards.

Our honored guest, Sir Frederick Pollock, in i9o3 told us,speaking of law teaching in his country: "In fact every teacherwho has taken up the matter seriously in England has not onlygone his own way, but had to go his own way because there wasno established system he could follow."

The public teachers of law in England and Wales have now,however, within the year effected an organization, and a repre-sentative of the drafting committee to shape and report on ruleshas requested from your president copies of our articles, and hehas been glad to furnish them. The objects of that society aresubstantially the same as of ours, and are declared to be "thefurtherance of the cause of legal education in England andWales, and of the work and interests of public teachers of lawtherein by holding discussions and enquiries, by publishing docu-ments and by taking such other steps as may, from time to time,be deemed desirable." This society, however, only admits to mem-bership teachers representing institutions "not established or ex-isting for the purpose of making pecuniary profit divisible amongtheir members." This organization of our brethren in GreatBritain has, I am sure, the best wishes of every one of us, andthe cordial good will of all who enjoy the benefits of that systemof law which is perhaps England's greatest gift to the world.

It is deemed worth while to analyze the statistics of our asso-ciation during the past nine years and at the present time.

217


The report of the United States Bureau of Education for 1899and i9oo, shows ninety-six law schools in the country. Of thesethirty-five were represented at our initial meeting, little m6rethan one-third in number.

The ninety-six schools had 12,516 students. The schools pre-sent at our meeting had 8,084, substantially two-thirds in num-ber of the whole body of students, though the schools were innumber only about one-third.

The like report for 19o8, which is the last in print, shows onehundred and eight law schools with 18,o69 students, an increasein number of schools of only one-eighth, but of students ofnearly one-half.

The rain has fallen upon the just and the unjust, but notalike. The increase in students in the schools represented at ourfirst meeting is 1,429, and in the other schools, 4,124. In otherwords, the thirty-five schools having two-thirds of the studentswhich founded this association, have since then had about one-fourth only of the growth, and the other schools, which had one-third of the students, have had three-fourths. I by no meansregret our standards, but I think it right that we should under-stand the sacrifice made.

The number of students in attendance is significant, but suchnumbers are only one of the indications to be considered. Thenumber of graduates is also significant as showing the effect ofour exactions for a degree.

In the year 19oo, with 12,512 students, our law *schools had3,241 graduates, substantially twenty-six per cent of those in at-tendance. In 19o8, with I8,o69 students, they had 3,999 grad-uates, a trifle over twenty-two per cent of those in attendance,showing a diminution of only four per cent in the annual pro-portion of all students in attendance who graduated.

These figures are disappointing in view of the radical increaseof requirements of our association as to the time of legal study.We do not seem to be affecting the body of students in our lawschools as we had hoped.

Of our thirty-five schools at our first meeting, twenty-one haveincreased their attendance, one has remained stationary, andthirteen have diminished their attendance in the past nine years;and in the thirteen are included some of the largest, oldest andmost favorably situated schools, as well as those of another type.The greatest number of law schools and law students is not218

YALE LAW JOURNAL.

found, as might be thought, in the North Atlantic division of

States, consisting of New England and the Middle States, where

there are eighteen schools with 3,483 students, but in the North

Central division, beginning with Ohio, including Michigan and

extending through the Dakotas, in which division there are forty-

three schools with 4,120 students. These divisions to which I

refer are reported by the Federal Commissioner for Education.

Of the schools which are now members of our association,

seven have come into existence since our meeting nine years ago,

and these seven have 1,oo6 students; thirteen schools show a smal-

ler attendance than at that time, and sixteen show an increase in

attendance. The schools now belonging to our association had

in 1898, 6,264 students. They now have 8,239 students. The

seven members which were not in existence at the earlier date

have 1,oo6 students. Deducting these, the schools which main-

tained their membership have 7,236 students, an increase in nine

years of 972 students in all.

These schools nine years ago had substantially fifty per cent

of the total number of law students in the country. They now

have a trifle over forty per cent. The increase in these schools

has been about fifteen per cent, in the whole body of law schools

substantially fifty per cent. In other words, we have had a little

less than one-third of our proportionate share in the growth of

law students shown in the whole country.

I submit these facts with no suggestion of turning backward.

Nulla vestigia retrorsum.

If our standards are desirable, it is lamentable that they apply

to only about four-ninths of the law students of the country,

and to a diminishing proportion. The progress that we have

made, from no requirements as to preliminary education to a

high school course, with no specification as to'length, and later

to a four years' high school course, to be accomplished before

law studies are begun; from no requirement as to law

studies, first to two years and then to three years, is very

great. It is suggested that all feasible efforts to induce other

schools to come to the desired standards e made and that they

be cordially welcomed to membership in the association, that the

bonds of friendly alliance between schools of the association be

strengthened in every way. It is believed that some practices

followed have a tendency to impair these good relations and

might therefore well be abandoned by mutual agreement. Such219


are the customs of advertising in the student publications of otheruniversities having law departments, and still more the customof requesting from a law school a copy of its catalogue and thenmailing to all students there listed the circulars and advertisingliterature of the rival school. There is no law against this and norule of our association, but the courteous traditions of the barwhich have resulted in England in making it a serious profes-sional misconduct for any lawyer to interfere between lawyer andclient indicate, it is believed, a safe rule for law schools, andwould prevent them from soliciting the students in attendanceupon another school. The American Bar Association at its lastsession approved a code of ethics. Perhaps a useful activity forthis association would be to appoint a committee to draft andreport a code of ethics for law schools, dealing with such ques-tions and with the receipt of students from other schools and allmatters of intercollegiate relation. The association need not feartoo many activities. The danger is that it will have too few.

In submitting this review of our nine years of existence, it isinteresting to observe that, although the statistics are not whollyexhilarating, yet there were in the past year, as shown by thereport of the Commissioner of Education, 1,515 fewer studentsin regular medicine, 575 fewer in homeopathic medicine, and1,4o8 fewer in dentistry than nine years ago, whereas, as wehave seen, there are 5,553 more law students than nine years ago.In fact, the growth in law schools in that period has vastly ex-ceeded that in any professional schools, except those in veterinarymedicine, a comparatively new branch of instruction in whichthere has been a marked and sudden development.

Professor Goudy of Oxford holds with high distinction theRegius Professorship founded by Henry VIII, with an originalendowment of forty pounds per annum. As president ofthe association of public teachers of law in England and Wales,in his introductory address he lately said, that in Rome "most ofthe great jurisconsuls were also teachers of law," and that thelaw teachers of to-day "are entitled to arrogate to" themselves"the language of one of the greatest of these (himself apparentlyin his younger days a teacher) and style ourselves the priests(sacerdotes) of justice and law."

He says with truth and cogency: "We must honestly endeavorto do what we can for our students, both by word and writing,but especially by word; because upon us undoubtedly rests, in220

YALE LAW JOURNAL.

considerable measure, responsibility for the future competencyof our judges and barristers and solicitors, and to some extentalso of our legislators, statesmen and administrators. We must,too, remember that the future reform of the laws, and conse-quent amelioration of the social and political conditions in thiscountry, may largely depend upon the knowledge we impart to,and the ideas we instill into, the minds of our pupils."

The duty, responsibility and influence of the law teachers in

this country are certainly not less, and I think we can maintainare far greater, than in England; if on no other basis, on that ofthe vastly larger number of both law teachers and law students.Moreover, lawyers are an important minority in Parliament, but

a dominant majority in Congress. The present prime min-ister is the first lawyer to attain that great place in a hundred

years, but all our presidents have been lawyers save for a fewmilitary leaders elected at the close of a war.

We have certainly never fallen into the condition shown in

the testimony before the first university commission in Eng-

land, which Professor Goudy quotes, where young law students"coming up from the university to London" after paying one

hundred guineas a year to eminent conveyancers, found them-

selves "walking blindfolded into a sort of legal jungle;" and

after repeating the fee the next year to an equity draftsman or

special pleader, with equally disappointing results, frequently

gave up the attempt as hopeless, and became clergymen. That is

seldom the fate of our students.

The rewards of the teacher are very limited, either in money

or in honor, and those lawyers who turn away from the shininglures of the practitioner to the sober paths of the law professor,must hope for their recompense in a sense of usefulness rather

than in wordly recognition, yet it is not without satisfaction that

at the present moment we see one of our profession advancedto be chief executive of the Nation and another to be the governorof our greatest state. There has been within the past decadea marked advance in the compensation and recognition of menin our profession, and it is believed that the acquaintance, consul-

tation and unity springing from our organization has tended topromote this consummation. The great hold which the bar has

so long maintained on English public life is always felt to be

largely due to the ancient, potent and inscrutable organization

of the inns of court. Lawyers standing together have accom-221


plished much. It is hoped that the associated law schools ofAmerica and the faculties, even though they proceed slowly, mayprove potent not merely for their own welfare and that of thecause of legal education, but for the wider and higher service ofjustice according to law:

"The hope of all who sufferThe dread of all who wrong,"

that enlightened justice which the late Lord Chief Justice Rus-sell called a prime necessity of mainkind to which all lawyers,whether on the bench, at the bar, or in the faculties, have pledgedthe labors of their useful lives.

Charles Noble Gregory.

222

2 0 1 5 – 2 0 1 6

ABA STANDARDS and RULES OF PROCEDURE

for APPROVAL OF LAW SCHOOLS

ABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd iABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd i 8/14/2015 11:10:10 AM8/14/2015 11:10:10 AM

223

Cover design by Jill Tedhams/ABA Design.

Page Layout by Quadrum Solutions.

The 2015-2016 ABA Standards and Rules of Procedure for Approval of Law Schools were adopted by the Council of the ABA Section of Legal Education and Admissions to the Bar and concurred in by the ABA House of Delegates in August 2015.

© 2015 American Bar Association. Permission is granted to reprint, but not for profi t, all or part of this publication, provided reference is made to this publication. All other rights reserved.

To order copies of this publication contact the ABA Service Center at 800.285.2221 or order online at www.ShopABA.org. The ABA product code number for this publication is 5290108. The price for this publication is $15.00.

This publication is also available in its entirety at the Section’s Web page: www.americanbar.org/legaled.

Printed in the United States of America.

19 18 17 16 15 5 4 3 2 1

Cataloging-in-Publication Data is on fi le with the Library of Congress

ISBN: 978-1-63425-352-9

Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 321 N. Clark Street, Chicago, Illinois 60654-7598.

www.ShopABA.org

ABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd iiABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd ii 8/14/2015 11:10:11 AM8/14/2015 11:10:11 AM

224

iii

Contents

Preface ........................................................................................................................................ v

Defi nitions ................................................................................................................................. ix

2015-2016 Standards for Approval of Law Schools (Revised Standards) ................................. 1

Rules of Procedure for Approval of Law Schools .................................................................... 47

Key Word Index ........................................................................................................................ 79

2013-2014 Standards for Approval of Law Schools ................................................................. 89

Criteria for Approval of Foreign Summer and Intersession ProgramsEstablished by ABA-Approved Law Schools ......................................................................... 145

Criteria for Approval of Foreign Semester and Year-Long Study AbroadPrograms Established by ABA-Approved Law Schools ........................................................ 153

Criteria for Accepting Credit for Student Study at a Foreign Institution ............................... 161

Section Bylaws ....................................................................................................................... 165

Internal Operating Practices ................................................................................................... 179

Appendix 1: Statement on Academic Freedom and Tenure ................................................... 189

Appendix 2: LSAC Cautionary Policies Concerning LSAT Scores ....................................... 191

ABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd iiiABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd iii 8/14/2015 11:10:11 AM8/14/2015 11:10:11 AM

225

v

Preface

Scope of Accrediting Authority

All jurisdictions have set minimal educational requirements to qualify a person for eligibility to sit for the bar examination. Almost all rely exclusively on ABA approval of a law school to determine whether the jurisdiction’s legal education requirement for admission to the bar is satisfi ed. In all states, graduation from an ABA-approved law school is suffi cient to meet these requirements although a small number of states have now added requirements in addition to the ABA requirements. Whether a jurisdiction requires education at an ABA-approved law school is a decision made by a jurisdiction’s highest court and its bar admission authority and not by the Council or the ABA. The Council and the ABA believe, however, that every candidate for admission to the bar should have graduated from a law school approved by the ABA and that every candidate for admission should be examined by public authority to determine fi tness for admission.

Since 1952, the Council of the Section of Legal Education and Admissions to the Bar (the Council) of the American Bar Association (the ABA) has been approved by the United States Department of Education as the recognized national agency for the accreditation of programs leading to the J.D. degree. United States Department of Education rules require an accrediting agency within a professional association to operate separately and independently from the association of which it is part. Therefore, it is the Council and its Accreditation Committee not the ABA that are the recognized accreditor. Nonetheless, for ease of reference, law schools accredited by the Council are referred to as “ABA-approved.”

In its role as the accrediting agency for legal education, the Council has promulgated the Standards and Rules of Procedure for Approval of Law Schools. The Standards contain the requirements a law school must meet to obtain and retain ABA approval. Interpretations that follow the Standards provide additional guidance concerning the implementation of a particular Standard. The Rules of Procedure govern the accreditation process and the process through which decisions concerning the status of individual schools are made. The Rules also contain provisions related to the operation of the Offi ce of the Managing Director.

History

The ABA in 1879 established the Standing Committee on Legal Education and Admissions to the Bar as one of the ABA’s fi rst committees. In 1893, the Section of Legal Education and Admissions to the Bar was established as the Association’s fi rst section. Recognizing the need to take further steps to improve legal education, the Section leadership played the major role in creating the Association of American Law Schools (AALS) in 1900. Today, the AALS is a law school membership organization with membership requirements different from the Standards. The AALS is not an accrediting agency.

In 1921 the American Bar Association promulgated it fi rst Standards for Legal Education. At the same time, the ABA began to publish a list of ABA-approved law schools that met the ABA Standards.

ABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd vABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd v 8/14/2015 11:10:11 AM8/14/2015 11:10:11 AM

226

9

CHAPTER 2Organization and Administration

Standard 201. LAW SCHOOL GOVERNANCE(a) The dean and the faculty shall have the primary responsibility and authority for planning,

implementing, and administering the program of legal education of the law school, including curriculum, methods of instruction and evaluation, admissions policies and procedures, and academic standards.

(b) The dean and the faculty shall recommend the selection, retention, promotion, and tenure (or granting of security of position) of members of the faculty.

(c) The dean and the faculty shall each have a signifi cant role in determining educational policy.

(d) The policies of a university that are applicable to a law school shall be consistent with the Standards. The law school shall have separate policies where necessary to ensure compliance with the Standards.

(e) A law school that is not part of a university shall be governed by a board with responsibility and authority for ensuring operation of the law school in compliance with the Standards.

ABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd 9ABA Standards for Approval of Law Schools 2015-2016_2nd pass.indd 9 8/14/2015 11:10:11 AM8/14/2015 11:10:11 AM

227

ABA Standards and Rules of Procedure for Approval of Law Schools 2015-2016 10

Standard 202. RESOURCES FOR PROGRAM (a) The current and anticipated fi nancial resources available to the law school shall be suffi cient for

it to operate in compliance with the Standards and to carry out its program of legal education.

(b) A law school that is part of a university shall obtain at least annually from its university an accounting and explanation for all charges and costs assessed against resources generated by the law school and for any use of resources generated by the law school to support non-law school activities and central university services.

(c) A law school is not in compliance with the Standards if its current fi nancial condition has a negative and material effect on the school’s ability to operate in compliance with the Standards or to carry out its program of legal education.

(d) A law school is not in compliance with the Standards if its anticipated fi nancial condition is reasonably expected to have a negative and material effect on the school’s ability to operate in compliance with the Standards or to carry out its program of legal education.

(e) A law school shall be given the opportunity to present its recommendations on budgetary matters to the university administration before the budget for the law school is submitted to the governing board for adoption.

Interpretation 202-1“Resources generated” includes law school tuition and fees, appropriated support, endowment restricted to the law school, gifts to the law school, and revenue from grants, contracts, and property of the law school.

Standard 203. DEAN (a) A law school shall have a full-time dean with the authority and support necessary to discharge

the responsibilities of the position.

(b) Except in extraordinary circumstances, a dean shall also hold appointment as a member of the faculty with tenure.

(c) The dean shall be selected by the university or the governing board of the law school, as appropriate, which shall have and follow a procedure for decanal appointment or reappointment that assures meaningful involvement by the faculty or a representative body of the faculty in the selection of a dean.

Interpretation 203-1Except for good cause, a dean should not be appointed or reappointed to a new term over the stated objection of a substantial majority of the faculty.

Interpretation 203-2In the appointment of an interim or acting dean, the university or the governing board of the law school, as appropriate, should follow a procedure that assures meaningful consultation with the faculty or a representative body of the faculty.


228

11 ABA Standards and Rules of Procedure for Approval of Law Schools 2015-2016

Interpretation 203-3The extension of an interim or acting dean’s service beyond two years is a regular decanal appointment or reappointment for the purposes of Standard 203(c).

Standard 204. SELF STUDYBefore each site evaluation visit the law school shall prepare a self-study comprised of (a) a completed site evaluation questionnaire, (b) a statement of the law school’s mission and of its educational objectives in support of that mission, (c) an assessment of the educational quality of the law school’s program, (d) an assessment of the school’s continuing efforts to improve educational quality, (e) an evaluation of the school’s effectiveness in achieving its stated educational objectives, and (f) a description of the strengths and weaknesses of the law school’s program of legal education.

Interpretation 204-1The evaluation of the school’s effectiveness and description of its strengths and weaknesses should include a statement of the availability of suffi cient resources to achieve the school’s mission and its educational objectives.

Standard 205. NON-DISCRIMINATION AND EQUALITY OF OPPORTUNITY(a) A law school shall not use admission policies or take other action to preclude admission of

applicants or retention of students on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability.

(b) A law school shall foster and maintain equality of opportunity for students, faculty, and staff, without discrimination or segregation on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability.

(c) This Standard does not prevent a law school from having a religious affi liation or purpose and adopting and applying policies of admission of students and employment of faculty and staff that directly relate to this affi liation or purpose so long as (1) notice of these policies has been given to applicants, students, faculty, and staff before their affi liation with the law school, and (2) the religious affi liation, purpose, or policies do not contravene any other Standard, including Standard 405(b) concerning academic freedom. These policies may provide a preference for persons adhering to the religious affi liation or purpose of the law school, but may not be applied to use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability. This Standard permits religious affi liation or purpose policies as to admission, retention, and employment only to the extent that these policies are protected by the United States Constitution. It is administered as though the First Amendment of the United States Constitution governs its application.

(d) Non-discrimination and equality of opportunity in legal education includes equal employment opportunity. A law school shall communicate to every employer to whom it furnishes assistance and facilities for interviewing and other placement services the school’s fi rm expectation that the employer will observe the principles of non-discrimination and equality of opportunity on


229


the basis of race, color, religion, national origin, gender, sexual orientation, age, and disability in regard to hiring, promotion, retention and conditions of employment.

Interpretation 205-1A law school may not require applicants, students, faculty or employees to disclose their sexual orientation, although they may provide opportunities for them to do so voluntarily.

Interpretation 205-2So long as a school complies with Standard 205(c), the prohibition concerning sexual orientation does not require a religiously affi liated school to act inconsistently with the essential elements of its religious values and beliefs. For example, Standard 205(c) does not require a school to recognize or support organizations whose purposes or objectives with respect to sexual orientation confl ict with the essential elements of the religious values and beliefs held by the school.

Interpretation 205-3 Standard 205(d) applies to all employers, including government agencies, to which a school furnishes assistance and facilities for interviewing and other placement services. However, this Standard does not require a law school to implement its terms by excluding any employer unless that employer discriminates unlawfully.

Interpretation 205-4 The denial by a law school of admission to a qualifi ed applicant is treated as made upon the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability if the basis of denial relied upon is an admission qualifi cation of the school that is intended to prevent the admission of applicants on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability though not purporting to do so.

Interpretation 205-5The denial by a law school of employment to a qualifi ed individual is treated as made upon the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability if the basis of denial relied upon is an employment policy of the school that is intended to prevent the employment of individuals on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability though not purporting to do so.

Standard 206. DIVERSITY AND INCLUSION(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate

by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.


230


Interpretation 206-1The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justifi cation for a school’s non-compliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.

Interpretation 206-2In addition to providing full opportunities for the study of law and the entry into the legal profession by members of underrepresented groups, the enrollment of a diverse student body promotes cross-cultural understanding, helps break down racial, ethnic, and gender stereotypes, and enables students to better understand persons of different backgrounds. The forms of concrete action required by a law school to satisfy the obligations of this Standard are not specifi ed. If consistent with applicable law, a law school may use race and ethnicity in its admissions process to promote diversity and inclusion. The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and fi nancial needs of many of these students and that create a favorable environment for students from underrepresented groups.

Standard 207. REASONABLE ACCOMMODATION FOR QUALIFIED INDIVIDUALS WITH DISABILITIES(a) Assuring equality of opportunity for qualifi ed individuals with disabilities, as required by

Standard 205, requires a law school to provide such students, faculty and staff with reasonable accommodations consistent with applicable law.

(b) A law school shall adopt, publish, and adhere to written policies and procedures for assessing and handling requests for reasonable accommodations made by qualifi ed individuals with disabilities.

Interpretation 207-1Applicants and students shall be individually evaluated to determine whether they meet the academic standards requisite to admission and participation in the law school program. The use of the term “qualifi ed” in the Standard requires a careful and thorough consideration of each applicant and each student’s qualifi cations in light of reasonable accommodations. Reasonable accommodations are those that are consistent with the fundamental nature of the school’s program of legal education, that can be provided without undue fi nancial or administrative burden, and that can be provided while maintaining academic and other essential performance standards.


231

15

CHAPTER 3Program of Legal Education

Standard 301. OBJECTIVES OF PROGRAM OF LEGAL EDUCATION(a) A law school shall maintain a rigorous program of legal education that prepares its students,

upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.

(b) A law school shall establish and publish learning outcomes designed to achieve these objectives.

Standard 302. LEARNING OUTCOMES A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:

(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.


232


Interpretation 302-1For the purposes of Standard 302(d), other professional skills are determined by the law school and may include skills such as, interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, confl ict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.

Interpretation 302-2A law school may also identify any additional learning outcomes pertinent to its program of legal education.

Standard 303. CURRICULUM(a) A law school shall offer a curriculum that requires each student to satisfactorily complete at least

the following:

(1) one course of at least two credit hours in professional responsibility that includes substantial instruction in the history, goals, structure, values, and responsibilities of the legal profession and its members;

(2) one writing experience in the fi rst year and at least one additional writing experience after the fi rst year, both of which are faculty supervised; and

(3) one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a fi eld placement. To satisfy this requirement, a course must be primarily experiential in nature and must:

(i) integrate doctrine, theory, skills, and legal ethics, and engage students in performance of one or more of the professional skills identifi ed in Standard 302;

(ii) develop the concepts underlying the professional skills being taught;

(iii) provide multiple opportunities for performance; and

(iv) provide opportunities for self-evaluation.

(b) A law school shall provide substantial opportunities to students for:

(1) law clinics or fi eld placement(s); and

(2) student participation in pro bono legal services, including law-related public service activities.

Interpretation 303-1 A law school may not permit a student to use a course to satisfy more than one requirement under this Standard. For example, a course that includes a writing experience used to satisfy the upper-class writing requirement [see 303(a)(2)] cannot be counted as one of the experiential courses required in Standard 303(a)(3).


233


Interpretation 303-2Factors to be considered in evaluating the rigor of a writing experience include the number and nature of writing projects assigned to students, the form and extent of individualized assessment of a student’s written products, and the number of drafts that a student must produce for any writing experience.

Interpretation 303-3Rule 6.1 of the ABA Model Rules of Professional Conduct encourages lawyers to provide pro bono legal services primarily to persons of limited means or to organizations that serve such persons. In addition, lawyers are encouraged to provide pro bono law-related public service. In meeting the requirement of Standard 303(b)(2), law schools are encouraged to promote opportunities for law student pro bono service that incorporate the priorities established in Model Rule 6.1. In addition, law schools are encouraged to promote opportunities for law students to provide over their law school career at least 50 hours of pro bono service that complies with Standard 303(b)(2). Pro bono and public service opportunities need not be structured to accomplish any of the outcomes required by Standard 302. Standard 303(b)(2) does not preclude the inclusion of credit-granting activities within a law school’s overall program of law-related pro bono opportunities so long as law-related non-credit bearing initiatives are also part of that program.

Interpretation 303-4Law-related public service activities include (i) helping groups or organizations seeking to secure or protect civil rights, civil liberties, or public rights; (ii) helping charitable, religious, civic, community, governmental, and educational organizations not able to afford legal representation; (iii) participating in activities providing information about justice, the law or the legal system to those who might not otherwise have such information; and (iv) engaging in activities to enhance the capacity of the law and legal institutions to do justice.

Standard 304. SIMULATION COURSES AND LAW CLINICS(a) A simulation course provides substantial experience not involving an actual client, that (1) is

reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member, and (2) includes the following:

(i) direct supervision of the student’s performance by the faculty member;

(ii) opportunities for performance, feedback from a faculty member, and self-evaluation; and

(iii) a classroom instructional component.

(b) A law clinic provides substantial lawyering experience that (1) involves advising or representing one or more actual clients or serving as a third-party neutral, and (2) includes the following:

(i) direct supervision of the student’s performance by a faculty member;

(ii) opportunities for performance, feedback from a faculty member, and self-evaluation; and

(iii) a classroom instructional component.


234


Standard 305. FIELD PLACEMENTS AND OTHER STUDY OUTSIDE THE CLASSROOM(a) A law school may grant credit toward the J.D. degree for courses that involve student participation

in studies or activities in a format that does not involve attendance at regularly scheduled class sessions, including courses approved as part of a fi eld placement program, moot court, law review, and directed research.

(b) Credit granted for such a course shall be commensurate with the time and effort required and the anticipated quality of the educational experience of the student.

(c) Each student’s educational achievement in such a course shall be evaluated by a faculty member. When appropriate a school may use faculty members from other law schools to supervise or assist in the supervision or review of a fi eld placement program.

(d) The studies or activities shall be approved in advance and periodically reviewed following the school’s established procedures for approval of the curriculum.

(e) A fi eld placement program shall include:

(1) a clear statement of its goals and methods, and a demonstrated relationship between those goals and methods and the program in operation;

(2) adequate instructional resources, including faculty teaching in and supervising the program who devote the requisite time and attention to satisfy program goals and are suffi ciently available to students;

(3) a clearly articulated method of evaluating each student’s academic performance involving both a faculty member and the site supervisor;

(4) a method for selecting, training, evaluating, and communicating with site supervisors;

(5) for fi eld placements that award three or more credit hours, regular contact between the faculty supervisor or law school administrator and the site supervisor to assure the quality of the student educational experience, including the appropriateness of the supervision and the student work;

(6) a requirement that each student has successfully completed suffi cient prerequisites or contemporaneously receives suffi cient training to assure the quality of the student educational experience in the fi eld placement program; and

(7) opportunities for student refl ection on their fi eld placement experience, through a seminar, regularly scheduled tutorials, or other means of guided refl ection. Where a student may earn three or more credit hours in a fi eld placement program, the opportunity for student refl ection must be provided contemporaneously.

(f) A law school that has a fi eld placement program shall develop, publish, and communicate to students and site supervisors a statement that describes the educational objectives of the program.


235


Interpretation 305-1Regular contact may be achieved through in-person visits or other methods of communication that will assure the quality of the student educational experience.

Interpretation 305-2A law school may not grant credit to a student for participation in a fi eld placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the fi eld placement.

Interpretation 305-3To qualify as an experiential course under Standard 303, a fi eld placement must also comply with the requirements set out in Standard 303(a)(3).

Standard 306. DISTANCE EDUCATION (a) A distance education course is one in which students are separated from the faculty member

or each other for more than one-third of the instruction and the instruction involves the use of technology to support regular and substantive interaction among students and between the students and the faculty member, either synchronously or asynchronously.

(b) Credit for a distance education course shall be awarded only if the academic content, the method of course delivery, and the method of evaluating student performance are approved as part of the school’s regular curriculum approval process.

(c) A law school shall have the technological capacity, staff, information resources, and facilities necessary to assure the educational quality of distance education.

(d) A law school may award credit for distance education and may count that credit toward the 64 credit hours of regularly scheduled classroom sessions or direct faculty instruction required by Standard 311(b) if:

(1) there is opportunity for regular and substantive interaction between faculty member and student and among students;

(2) there is regular monitoring of student effort by the faculty member and opportunity for communication about that effort; and

(3) the learning outcomes for the course are consistent with Standard 302.

(e) A law school shall not grant a student more than a total of 15 credit hours toward the J.D. degree for courses qualifying under this Standard.

(f) A law school shall not enroll a student in courses qualifying for credit under this Standard until that student has completed instruction equivalent to 28 credit hours toward the J.D. degree.

(g) A law school shall establish an effective process for verifying the identity of students taking distance education courses and that also protects student privacy. If any additional student charges are associated with verifi cation of student identity, students must be notifi ed at the time of registration or enrollment.


236


Interpretation 306-1Technology used to support a distance education course may include, for example:

(a) The Internet;

(b) One-way and two-way transmissions through open broadcast, closed circuit, cable, microwave, broadband lines, fi ber optics, satellite, or wireless communications devices;

(c) Audio and video conferencing; or

(d) Video cassettes, DVDs, and CD-ROMs, if the cassettes, DVDs, or CD-ROMs are used in a course in conjunction with any of the technologies listed in paragraphs (a) through (c).

Interpretation 306-2 Methods to verify student identity as required in Standard 306(g) include, but are not limited to (i) a secure login and pass code, (ii) proctored examinations, and (iii) other technologies and practices that are effective in verifying student identity. As part of the verifi cation process, a law school shall verify that the student who registers for a class is the same student that participates and takes any examinations for the class.

Standard 307. STUDIES, ACTIVITIES, AND FIELD PLACEMENTS OUTSIDE THE UNITED STATES(a) A law school may grant credit for (1) studies or activities outside the United States that are

approved in accordance with the Rules of Procedure and Criteria as adopted by the Council and (2) fi eld placements outside the United States that meet the requirements of Standard 305 and are not held in conjunction with studies or activities that are approved in accordance with the Rules of Procedure and Criteria as adopted by the Council.

(b) The total credits for student participation in such studies or activities may not exceed one-third of the credits required for the J.D. degree.

Interpretation 307-1The three Criteria adopted by the Council are the Criteria for Approval of Foreign Summer and Intersession Programs Established by ABA-Approved Law Schools, the Criteria for Approval of Foreign Semester and Year-Long Study Abroad Programs Established by ABA-Approved Law Schools, and the Criteria for Accepting Credit for Student Study at a Foreign Institution.

Interpretation 307-2For purposes of Standard 307, a brief visit to a country outside the United States that is part of a course offered and based primarily at the law school and approved through the school’s regular curriculum approval process is not considered to be studies outside the United States.

Standard 308. ACADEMIC STANDARDS (a) A law school shall adopt, publish, and adhere to sound academic standards, including those for

regular class attendance, good standing, academic integrity, graduation, and dismissal.

(b) A law school shall adopt, publish, and adhere to written due process policies with regard to taking any action that adversely affects the good standing or graduation of a student.


237


Standard 309. ACADEMIC ADVISING AND SUPPORT(a) A law school shall provide academic advising for students that communicates effectively the

school’s academic standards and graduation requirements, and that provides guidance on course selection.

(b) A law school shall provide academic support designed to afford students a reasonable opportunity to complete the program of legal education, graduate, and become members of the legal profession.

Standard 310. DETERMINATION OF CREDIT HOURS FOR COURSEWORK(a) A law school shall adopt, publish, and adhere to written policies and procedures for determining

the credit hours that it awards for coursework.

(b) A “credit hour” is an amount of work that reasonably approximates:

(1) not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week for fi fteen weeks, or the equivalent amount of work over a different amount of time; or

(2) at least an equivalent amount of work as required in subparagraph (1) of this defi nition for other academic activities as established by the institution, including simulation, fi eld placement, clinical, co-curricular, and other academic work leading to the award of credit hours.

Interpretation 310-1For purposes of this Standard, fi fty minutes suffi ces for one hour of classroom or direct faculty instruction. An “hour” for out-of-class student work is sixty minutes. The fi fteen-week period may include one week for a fi nal examination.

Interpretation 310-2A school may award credit hours for coursework that extends over any period of time, if the coursework entails no less than the minimum total amounts of classroom or direct faculty instruction and of out-of-class student work specifi ed in Standard 310(b).

Standard 311. ACADEMIC PROGRAM AND ACADEMIC CALENDAR (a) A law school shall require, as a condition for graduation, successful completion of a course of

study of not fewer than 83 credit hours. At least 64 of these credit hours shall be in courses that require attendance in regularly scheduled classroom sessions or direct faculty instruction.

(b) A law school shall require that the course of study for the J.D. degree be completed no earlier than 24 months and, except in extraordinary circumstances, no later than 84 months after a student has commenced law study at the law school or a law school from which the school has accepted transfer credit.

(c) A law school shall not permit a student to be enrolled at any time in coursework that exceeds 20 percent of the total credit hours required by that school for graduation.


238


(d) Credit for a J.D. degree shall only be given for course work taken after the student has matriculated in a law school. A law school may not grant credit toward the J.D. degree for work taken in a pre-admission program.

Interpretation 311-1(a) In calculating the 64 credit hours of regularly scheduled classroom sessions or direct faculty instruction

for the purpose of Standard 311(a), the credit hours may include:

(1) Credit hours earned by attendance in regularly scheduled classroom sessions or direct faculty instruction;

(2) Credit hours earned by participation in a simulation course or law clinic in compliance with Standard 304;

(3) Credit hours earned through distance education in compliance with Standard 306; and

(4) Credit hours earned by participation in law-related studies or activities in a country outside the United States in compliance with Standard 307.

(b) In calculating the 64 credit hours of regularly scheduled classroom sessions or direct faculty instruction for the purpose of Standard 311(a), the credit hours shall not include any other coursework, including, but not limited to:

(1) Credit hours earned through fi eld placements and other study outside of the classroom in compliance with Standard 305;

(2) Credit hours earned in another department, school, or college of the university with which the law school is affi liated, or at another institution of higher learning;

(3) Credit hours earned for participation in co-curricular activities such as law review, moot court, and trial competition; and

(4) Credit hours earned by participation in studies or activities in a country outside the United States in compliance with Standard 307 for studies or activities that are not law-related.

Interpretation 311-2Whenever a student is permitted on the basis of extraordinary circumstances to exceed the 84-month program limitation in Standard 311(b), the law school shall place in the student’s fi le a statement signed by an appropriate law school offi cial explaining the extraordinary circumstances leading the law school to permit an exception to this limitation. Such extraordinary circumstances, for example, might include an interruption of a student’s legal education because of an illness, family exigency, or military service.

Interpretation 311-3If a law school grants credit for prior law study at a law school outside the United States as permitted under Standard 505(c), only the time commensurate with the amount of credit given counts toward the length of study requirements of Standard 311(b). For example, if a student has studied for three years at a law school outside the United States and is granted one year of credit toward the J.D. degree, the amount of time that counts toward the 84 month requirement is one year. The student has 72 months in which to complete law school in the United States.


239


Standard 312. REASONABLY COMPARABLE OPPORTUNITIESA law school providing more than one enrollment or scheduling option shall ensure that all students have reasonably comparable opportunities for access to the law school’s program of legal education, courses taught by full-time faculty, student services, co-curricular programs, and other educational benefi ts. Identical opportunities are not required.

Standard 313. DEGREE PROGRAMS IN ADDITION TO J.D. A law school may not offer a degree program other than its J.D. degree program unless:

(a) the law school is fully approved;

(b) the Council has granted acquiescence in the program; and

(c) the degree program will not interfere with the ability of the law school to operate in compliance with the Standards and to carry out its program of legal education.

Interpretation 313-1Acquiescence in a degree program other than the J.D. degree is not an approval of the program itself and, therefore, a school may not announce that the program is approved by the Council.

Standard 314. ASSESSMENT OF STUDENT LEARNINGA law school shall utilize both formative and summative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback to students.

Interpretation 314-1Formative assessment methods are measurements at different points during a particular course or at different points over the span of a student’s education that provide meaningful feedback to improve student learning. Summative assessment methods are measurements at the culmination of a particular course or at the culmination of any part of a student’s legal education that measure the degree of student learning.

Interpretation 314-2A law school need not apply multiple assessment methods in any particular course. Assessment methods are likely to be different from school to school. Law schools are not required by Standard 314 to use any particular assessment method.

Standard 315. EVALUATION OF PROGRAM OF LEGAL EDUCATION, LEARNING OUTCOMES, AND ASSESSMENT METHODSThe dean and the faculty of a law school shall conduct ongoing evaluation of the law school’s program of legal education, learning outcomes, and assessment methods; and shall use the results of this evaluation to determine the degree of student attainment of competency in the learning outcomes and to make appropriate changes to improve the curriculum.


240


Interpretation 315-1Examples of methods that may be used to measure the degree to which students have attained competency in the school’s student learning outcomes include review of the records the law school maintains to measure individual student achievement pursuant to Standard 314; evaluation of student learning portfolios; student evaluation of the suffi ciency of their education; student performance in capstone courses or other courses that appropriately assess a variety of skills and knowledge; bar exam passage rates; placement rates; surveys of attorneys, judges, and alumni; and assessment of student performance by judges, attorneys, or law professors from other schools. The methods used to measure the degree of student achievement of learning outcomes are likely to differ from school to school and law schools are not required by this standard to use any particular methods.

Standard 316. BAR PASSAGE [See “Instructions for Charts Required in Standard 316” on the Guidance Memos page of the Section’s website: www.americanbar.org/legaled)(a) A law school’s bar passage rate shall be suffi cient, for purposes of Standard 301(a), if the school

demonstrates that it meets any one of the following tests:

(1) That for students who graduated from the law school within the fi ve most recently completed calendar years:

(i) 75 percent or more of these graduates who sat for the bar passed a bar examination; or

(ii) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.

In demonstrating compliance under sections (1)(i) and (ii), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.

(2) That in three or more of the fi ve most recently completed calendar years, the school’s annual fi rst-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average fi rst-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.

In demonstrating compliance under section (2), the school must report fi rst-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.

(b) A school shall be out of compliance with this Standard if it is unable to demonstrate that it meets the requirements of paragraph (a)(1) or (2).

(c) A school found out of compliance under paragraph (b) and that has not been able to come into compliance within the two-year period specifi ed in Rule 13(b) of the Rules of Procedure for Approval of Law Schools, may seek to demonstrate good cause for extending the period the law school has to demonstrate compliance by submitting evidence of:


241


(1) The law school’s trend in bar passage rates for both fi rst-time and subsequent takers: a clear trend of improvement will be considered in the school’s favor, a declining or fl at trend against it.

(2) The length of time the law school’s bar passage rates have been below the fi rst-time and ultimate rates established in paragraph A: a shorter time period will be considered in the school’s favor, a longer period against it.

(3) Actions by the law school to address bar passage, particularly the law school’s academic rigor and the demonstrated value and effectiveness of its academic support and bar preparation programs: value-added, effective, sustained and pervasive actions to address bar passage problems will be considered in the law school’s favor; ineffective or only marginally effective programs or limited action by the law school against it.

(4) Efforts by the law school to facilitate bar passage for its graduates who did not pass the bar on prior attempts: effective and sustained efforts by the law school will be considered in the school’s favor; ineffective or limited efforts by the law school against it.

(5) Efforts by the law school to provide broader access to legal education while maintaining academic rigor: sustained meaningful efforts will be viewed in the law school’s favor; intermittent or limited efforts by the law school against it.

(6) The demonstrated likelihood that the law school’s students who transfer to other ABA-approved schools will pass the bar examination: transfers by students with a strong likelihood of passing the bar will be considered in the school’s favor, providing the law school has undertaken counseling and other appropriate efforts to retain its well-performing students.

(7) Temporary circumstances beyond the control of the law school, but which the law school is addressing: for example, a natural disaster that disrupts operations or a signifi cant increase in the standard for passing the relevant bar examination(s).

(8) Other factors, consistent with a law school’s demonstrated and sustained mission, which the school considers relevant in explaining its defi cient bar passage results and in explaining the school’s efforts to improve them.


242

SCHATZ V. RSLC 669 F.3d 50 (1st Cir. 2012)

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

PROLOGUE

Campaigning for public office sometimes has the feel of a contact sport, with candidates, political organi-zations, and others trading rhetorical jabs and sound-bite attacks in hopes of landing a knockout blow at the polls. It is not for the thin-skinned or the faint-hearted, to use two apropos clichés. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 275-76 (1971). And because political speech is the life-breath of democracy, see Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989), the First Amendment — applied to the states via the Fourteenth — bars public figures from recovering damages under state defamation laws unless they show that the defamer acted with “actual malice,” see New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), legalese that might suggest ill will or evil motive to the uninitiated but really means knowledge of falsity or reckless disregard for the truth, see Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 509-11 (1991).1 Cases define “reckless disregard” variously as a defamer’s having “‘serious doubts’” about a state-ment’s falsity, or “actually” having “a ‘high degree of awareness of . . . probable falsity,’” or suspecting falsity and purposefully — not just negligently — avoiding the truth. Harte-Hanks Commc’n, Inc. v. Connaughton, 491 U.S. 657, 688, 692 (1989) (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968), and Garrison v. Louisiana, 379 U.S. 64, 74 (1964), respectively).

All this makes it quite obvious that defamation law does not require that combatants for public office act like war-time neutrals, treating everyone evenhandedly and always taking the high road. Quite the contrary. Provided that they do not act with actual malice, they can badmouth their opponents, hammering them with unfair and one-sided attacks — remember, speaking out on political issues, especially criticizing public offi-cials and hopefuls for public office, is a core freedom protected by the First Amendment and probably pre-sents “the strongest case” for applying “the New York Times rule.” See id. at 666 n.7, 686-87. And absent actual malice, more speech, not damages, is the right strike-back against superheated or false rhetoric. See id. at 686-87.

Today’s appeal — targeting speech critical of a candidate’s performance in public office and challenging the dismissal of his defamation-based complaint for failure to state a claim — brings these principles into bold relief. Finding no reversible error in the judge’s careful opinion, we affirm. The story follows.

HOW IT ALL BEGAN Having lost his bid for a Maine Senate seat in 2010, Democratic politician James Schatz brought this di-

versity suit (governed, all agree, by Maine law) against a slew of defendants for defamation libel, intentional infliction of emotional distress, and publicly placing him in a false light. Our case caption lists the complete cast of defendants. For simplicity’s sake, we follow the parties’ lead and refer to the defendants, collectively, as the “RSLC,” which is short for the Republican State Leadership Committee.

The gist of Schatz’s operative complaint was that the RSLC opposed his candidacy and supported his op-ponent’s with flyers, brochures, and radio and TV ads days before the election that conjured up imaginary wrongs that he had supposedly done as a selectman for the town of Blue Hill. He attached copies of the of-fending circulars to his complaint, and we quote from one of them, which is representative of the others.2 Emblazoned on the front are these words:

1 For a succinct summary of the history behind what is sometimes called the “New York Times rule,” see Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 11-14 (1st Cir. 2011). 2 The judge reproduced the flyer as Exhibit A to his decision. See Schatz v. Republican State Leadership Comm., 777 F. Supp. 2d 181, 192 (D. Me. 2011). To save trees, we refer the interested reader there rather than reproducing a copy here. As for the radio and TV ads, they basically parroted what the flyers said, Schatz alleged.

243

No Rockets’ Red Glare, No Bursting in Air. Thanks to JIM SCHATZ . . .

(Emphases removed.) And on the back:

Jim Schatz voted to cancel the $10,000 fireworks celebration for the Fourth of July — blaming it on a bad economy. However, before canceling the show, Schatz and the Blue Hill Selectmen gave 10,000 taxpayer dollars to a political organization. It’s wrong for Schatz to give your money to a political organization, and it was wrong for Schatz to cancel your 4th of July celebration. On November 2, Vote against Jim Schatz, because he’s wrong for Maine.

(Emphases removed.) A fine-print footnote in the flyers references two newspaper articles as the source for these assertions,

and Schatz appended both items to his complaint too. The first, from the July 2, 2009 edition of the Bangor Daily News, chronicled the financial difficulties confronting cash-strapped Maine towns in funding fireworks for the 2009 Independence Day celebration:

There will be no fireworks display in Blue Hill this Fourth of July due to the poor economic climate, but business is booming elsewhere as municipalities and private groups have worked hard to raise funds to pay for the fire that lights up the nation’s birthday.

It continued:

For the past two years the Hancock County town has fronted the money for the fireworks display for the Fourth to Remember celebration and paid the funds back through donations. There’s about $10,000 in the account, but the selectmen and the fireworks committee opted not to spend the funds this year.

And it noted:

“Given the economy, we felt that in good conscience we couldn’t do it this year,” said Selectman Jim Schatz. “We thought that to spend that much money on something that will light things up for a few se-conds and then is gone was not the thing to do. Unless we were sure we could pay the town back, we didn’t want to pull the trigger on it this year.”

The second piece, from the August 9, 2009 edition of the Kennebec Journal, highlighted how local com-munities “are being asked to help roll back school consolidation.” It started off:

Starved for cash, the advocates pressing for a repeal of Maine’s school district consolidation law are taking their fundraising appeal to the towns directly affected by the sweeping state mandate.

The Maine Coalition to Save Schools, which had $140 on hand at the beginning of July, is seeking cam-paign contributions from municipalities that turned down district mergers or are unhappy with the consoli-dation arrangements their voters approved.

It added:

Blue Hill approved a $3,000 contribution to the effort in January 2008 and $2,000 more in July of last year. James Schatz, a Blue Hill selectman and a state representative, said the town recently paid $5,000 to the coalition as the last installment of a $10,000 commitment.

And Danforth and Deer Isle residents each approved taking $3,000 out of town coffers to boost the ef-fort in January and October of last year, respectively.

After noting “Monmouth selectmen don’t have the power to contribute town funds to a political cause,” it informed:

While it’s legal for municipalities’ legislative bodies to dig into taxpayer funds to support political caus-es, the Maine Municipal Association, the lobbying arm for Maine cities and towns, advises against it.

“Expressing one’s view is one thing,” association spokesman Michael Starn said. “Expending town funds

244

to support their view is much more problematic.” A municipality should generally take a position of “more fact gathering and factual dissemination, not

advocacy as individual communities,” Starn said. But municipal officials, he noted, are free to express their opinions on pending political matters, and a

town’s legislative body can approve resolutions supporting or opposing particular causes. “You do have a responsibility as a government official to approach this whole advocacy thing in a very

responsible way,” Starn said.

And, finally, it reported:

According to [Dick] Dyer, [a repeal advocate,] there’s no reason that can’t involve committing town funds to advancing a political cause.

Town officials “make decisions all the time that are political in nature that involve spending taxpayers’ dollars,” he said.

Schatz, the Blue Hill selectman, acknowledged that questions come up when municipalities contribute to political causes.

But “a lot of the rural, small schools have been hurt” by consolidation, he said. “If (one) were to exam-ine the issue, it would seem appropriate” to contribute to the repeal campaign.

Getting back to the complaint, Schatz alleged that the RSLC had defamed him by falsely accusing him of a crime: having lobbed words like “wrong” and “misuse” while denouncing him for working both to give taxpayer money to a “political organization” and to squelch the 2009 fireworks display, the RSLC had smeared him as a stealer of public funds. Eager to set things straight, Schatz declared in his complaint that town voters had decided in January 2008 to make an up-to $10,000 contribution to the repeal-the-school-consolidation-law effort, though they apparently gave the selectmen the discretion to decide how much (if any) of the $10,000 to spend. Consistent with that vote, the selectmen paid the Maine Coalition to Save Schools (“Coalition,” for easy reading) $10,000 in three installments of varying amounts, Schatz said, with the final payment coming the day before the 2009 Independence-Day festivities. Speaking of Independence Day 2009, Schatz alleged that he himself had voted in March 2009 to fund fireworks for that day but was outvoted by the town’s other two selectmen. He also said that these funding decisions — the first, by the voters in January 2008 to kick into the repeal kitty; the second, by the selectmen in March 2009 not to spring for fireworks, after he lost 2-1 on that issue — were totally unrelated.

Schatz then used the words “actual malice” in his complaint, claiming that the RSLC knew based on the two articles that its defamatory statements were false or was recklessly indifferent to whether they were false. And, on top of that, he accused the RSLC of not bothering to confirm the truth of its assertions, fault-ing it for not doing anything to double-check the articles’ accuracy.

HOW THE CASE GOT HERE The RSLC promptly moved to dismiss Schatz’s complaint for failure to state a viable claim. See Fed. R.

Civ. P. 12(b)(6). Faced with that filing, Schatz dropped his intentional-infliction-of-emotional-distress claim and stated at a motion hearing that if his defamation claim failed so too would his false-light claim. Also im-portantly, Schatz agreed that the Coalition is a political organization, conceded that he was a public official for defamation purposes, and argued that the judge could identify actual malice by comparing what the newspapers said against what the flyers said.

After argument, the judge wrote a thoughtful opinion granting the RSLC’s motion. Even assuming that the RSLC’s statements were false and smacked of “‘gotcha’ politics” of a “juvenile” sort, the judge still had “serious doubts” about whether they were defamatory under Maine law — doubts that he did not resolve because he concluded that Schatz’s complaint did not plausibly allege that the RSLC had acted with actual malice. See Schatz, 777 F. Supp. 2d at 187-91. Unpersuaded, Schatz appeals.

OUR ANALYSIS

We give de novo review to a Rule 12(b)(6) dismissal, using the same criteria as the district judge. See, e.g., Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7, 11-13 (1st Cir. 2011). Ocasio-Hernández points the way to

245

the proper handling of a motion to dismiss. Step one: isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements. Id. at 12 (discussing, among other cases, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Step two: take the complaint’s well-pled (i.e., non-conclusory, nonspeculative) facts as true, drawing all reasonable inferences in the pleader’s favor, and see if they plausibly narrate a claim for relief. Id. (again, discussing Iqbal and Twombly, among others); see also S.E.C. v. Tambone, 597 F.3d 436, 441-42 (1st Cir. 2010) (en banc). Plausible, of course, means something more than merely possible, and gauging a pleaded situation’s plausibility is a “context-specific” job that compels us “to draw on” our “judicial experi-ence and common sense.” Iqbal, 129 S. Ct. at 1949, 1950. And in performing our review, we realize too that we can consider (a) “implications from documents” attached to or fairly “incorporated into the com-plaint,”3 (b) “facts” susceptible to “judicial notice,” and (c) “concessions” in plaintiff’s “response to the motion to dismiss.” Arturet-Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir. 2005); see also Haley v. City of Boston, 657 F.3d 39, 44, 46 (1st Cir. 2011).

Like the district judge, we skip over whether Schatz’s complaint plausibly alleges defamation and focus on whether it plausibly alleges actual malice — given that this is the simplest way to pinpoint Schatz’s prob-lem. Not so fast, Schatz says, suggesting that courts cannot take that tack. Unfortunately for Schatz, he cites no case for the point, and we are aware of none, so we need say no more about that. See Rodríguez v. Munici-pality of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011). But before we tangle with the actual-malice issue, we need to clear away some underbrush.

Schatz intimates that the RSLC should get less First Amendment protection than traditional members of the institutional press. Again, though, he makes the point in passing, with no case analysis, which does not put the matter in play here. Id. He also faults the judge for dismissing his complaint without giving him the chance to fire up the pretrial-discovery process and at least get to the summary-judgment stage. But to ac-cess discovery mechanisms, a plaintiff must first produce a complaint that passes the plausibility test — a test that helps keep defendants from wasting time and money in discovery on “largely groundless” claims. See Twombly, 550 U.S. at 558 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)) (internal quota-tion marks omitted). And it does no good to suggest, as Schatz seemingly does, that a judge can cast aside complaints “just shy of a plausible entitlement to relief” on summary judgment: because the high cost of liti-gation can scare defendants into settling even a weak case pre-summary judgment, a claim must have some degree of plausibility before the parties are put through their discovery paces. See id. at 558-59.

We turn our attention, then, back to whether Schatz’s allegations plausibly support an actual-malice claim. His complaint used actual-malice buzzwords, contending that the RSLC had “knowledge” that its statements were “false” or had “serious doubts” about their truth and a “reckless disregard” for whether they were false. But these are merely legal conclusions, which must be backed by well-pled facts. See, e.g., Ocasio-Hernández, 640 F.3d at 12. As for facts, the complaint alleged that the RSLC had basically branded him a criminal, falsely charging him with working with his co-selectmen to “wrong[ly]” divert $10,000 in “taxpay-er” funds to a “political organization” and then voting to kill a $10,000 fireworks celebration. The reality, at least according to his complaint, is that town residents had voted in January 2008 to contribute to the Coali-tion and that he had voted in March 2009 to fund the fireworks display. From these allegations Schatz fur-ther insists that the RSLC had portrayed him in a sinister light by connecting the two funding decisions (the one had nothing to do with the other) and by referring to the Coalition as a “political organization” rather than by its name (leaving the impression that maybe his “political organization” had gotten the 10 grand). Given what the newspapers had reported, which, according to the complaint, were the RSLC’s sole sources of information, the RSLC knew the offending statements were false or made them recklessly without any regard for the truth — or so Schatz argues. He also points out that his complaint alleged that the RSLC did not launch “any additional investigation” to determine whether what it said was true. And, reaching the ul-timate crescendo, he contends that the complaint’s allegations plausibly show that the RSLC acted with actu-

3 Knowing that the documents may trump the complaint’s allegations if a conflict exists, e.g., where a defendant has “excis[ed] an isolated statement from a document and import[ed] it into the complaint,” see Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000).

246

al malice. We think just the opposite. After comparing what the RSLC proclaimed with what the newspapers dis-

closed (as everyone agrees we should), we conclude that none of Schatz’s points, individually or collectively, can save the day for him.

Let us start with Schatz’s beef with the RSLC’s labeling “wrong” a “vote” by him and his selectmen-partners to hand $10,000 to a “political organization”:

1. The Kennebec Journal story spotlighted how some consider funding like that to be inappropriate. Yet it is all perfectly legal, the article pointed out. Schatz himself essentially seconded these sentiments. Yes, some people raise “questions” whenever a town contributes to a political cause, but “it would seem to be appropri-ate” to chip in town money to the repeal-the-school-consolidation-law campaign, he is quoted as saying. And a commonsense reading of that article suggests that words like inappropriate (and “wrong” surely is one) are not synonyms for criminal.

2. “Blue Hill approved” the contribution, the article added. But neither that tidbit nor anything else there identified Blue Hill voters as opposed to Blue Hill officials as the approvers. Also, Schatz concedes that he and his colleagues had voter-conferred discretion over whether to contribute any of the $10,000 in the first place, meaning that they did play a leading role in handing the Coalition $10,000. Undaunted, Schatz argues here that because the Kennebec Journal story said that residents in other towns had voted or needed to vote on the contribution question, one can infer that Blue Hill residents and not Blue Hill selectmen had to approve the appropriation too — given that (in the words of his brief) Maine residents “generally know” and Maine law generally provides “that selectmen can spend public funds only for purposes authorized by voters at a town meeting.” This is a nonstarter, however: the article said nothing about whether these supposed appro-priation rules apply uniformly across the state and, more importantly, to Blue Hill; also, at the risk of sound-ing like a broken record, even Schatz admits that he and his selectmen compatriots had the freedom to de-cide whether to contribute any money at all.

3. While we are talking about concessions, Schatz once again concedes that the Coalition is indeed a “po-litical organization.” And the inference that he asks us to draw — that “political organization” was code for a Schatz political organization that stood to reap the whole benefit from the $10,000 contribution — is simply too much of a stretch for us to credit, even at the pleading stage. See Gooley v. Mobil Oil Corp., 851 F.2d 513, 514, 515 (1st Cir. 1988) (explaining that while we must draw all reasonable inferences in the plaintiff’s fa-vor, we need not accept every imaginable inference).

As for his railing against the RSLC for saying he had voted not to fund the 2009 Fourth of July fireworks display and for tying the two spending decisions (contributing to the repeal campaign and cancelling the fireworks) together by their timing:

1. The Bangor Daily News story reported that “the selectmen and the fireworks committee” had decided not to fund the fireworks show. (Emphasis added.) And it provided not even the slightest possible hint of a sug-gestion that Schatz had bucked his colleagues and voted yes on the fireworks-funding issue. Actually, his quoted comments — e.g., that “we” could not “in good conscience” fund the fireworks “this year,” given the poor economic climate, and that “[w]e thought” that spending $10,000 “on something that will light” up the sky “for a few seconds . . . was not the thing to do” — gave the distinct impression that he had voted no too.

2. Neither article tied the fireworks funding to the contribution payments. But the Kennebec Journal story of August 9, 2009 — published hard on the heels of the 2009 July Fourth celebration that had no fireworks — paraphrased Schatz as saying that Blue Hill had “recently paid” the Coalition “$5,000 . . . as the last in-stallment of a $10,000 commitment.” (Emphasis added.) Schatz harps on the judge’s comment that the RSLC’s juxtaposing the contribution payments with the fireworks cancellation suggests “careless[ness]” and smacks of childish “‘gotcha’ politics” too. Schatz, 777 F. Supp. 2d at 189, 191. But that does not help Schatz, because carelessness “is an indication of negligence, not actual malice.” Levesque v. Doocy, 560 F.3d 82, 91 (1st Cir. 2009).

This spells doom for Schatz. By now it is plain that what the RSLC said synced up with or at least was not out of line with what the stories said. Most importantly for present purposes, none of Schatz’s allegations — singly or together — plausibly suggest that, given the articles’ reporting, the RSLC either knew that its statements were false or had serious doubts about their truth and dove recklessly ahead anyway. That his

247

complaint also alleged that the RSLC passed on doing “additional” legwork to verify the truth behind its statements does not change things. True, “[r]ecklessness amounting to actual malice may be found” where the defendant “relies on a source” when “there is an obvious reason to doubt its veracity . . . or deliberately ignores evidence that calls into question his published statements.” Id. at 90. But Schatz has not alleged enough to meet that standard. The bottom line, then, is that he has not “nudged” his actual-malice claim “across the line from conceivable to plausible,” so the judge rightly dismissed the complaint. See Twombly, 550 U.S. at 570.

As a last-ditch effort to save his case, Schatz suggests that if we do not reverse the judge we will be set-ting pleading standards higher than what Twombly and Iqbal require. Not so. Sure, malice is not a matter that requires particularity in pleading — like other states of mind, it “may be alleged generally.” See Fed. R. Civ. P. 9(b). But, to make out a plausible malice claim, a plaintiff must still lay out enough facts from which mal-ice might reasonably be inferred — even in a world with Twombly and Iqbal. See, e.g., Iqbal, 129 S. Ct. at 1954 (noting that “Rule 9 merely excuses a party from pleading [states of mind] under an elevated pleading standard” — it does not give him carte blanche “to plead the bare elements of his cause of action, affix the label ‘general allegation,’ and expect his complaint to survive a motion to dismiss”). Having followed Twombly and Iqbal to a T, we easily reject Schatz’s last line of attack.

EPILOGUE

Concluding, as we do, that the judge reached a correct result, we uphold his decision and judgment. Affirmed with costs to appellees.

248

EXEMPLARY LEGAL WRITING 2012

•MISCELLANY•

LETTER TO PATRICK WENSINK

Jack Daniel’s, July 12, 2012

Christy Susman & David Gooder†

Editor’s note: The letter on the next page addresses an issue related to the two images on this page — the classic American icon on the left and the more recent homage below.

† Christy Susman is Senior Attorney, Trademarks, and David Gooder is Chief Trademark Counsel at Jack Daniel’s Properties, Inc. Copyright © 2012 Jack Daniel’s Properties, Inc. Reprinted with the kind permission of Jack Daniel’s, the authors, the recipient. The trademark JACK DANIEL’S appears courtesy of Jack Daniel’s Properties, Inc. JACK DANIEL’S is a registered trademark of Jack Daniel’s Properties, Inc.

249

GREEN BAG ALMANAC & READER 2013

250

COMMENCEMENT ADDRESS Swarthmore College

www.swarthmore.edu/commencement-2012/frank-easterbrook-70.xml

Frank H. Easterbrook†

I am delighted to be back at Swarthmore, receiving another degree. My teachers, especially J. Roland Pennock and Frank Pierson, prepared me well for a career in a law school — and, as fate decreed, on the bench. I owe them more than any form of words can express.

Despite saying this, I want to use my brief time to disparage a dogma that is today common in the academy — the attitudinal model of judicial behavior, taught in both political science and economics, which asserts that decisions re-flect the judges’ background and politics (or perhaps the views of the President who appointed them).

We have about a month to go in the Supreme Court’s current term. Many 5-4 decisions are impending. The press will bemoan the Justices’ inability to agree and assert that the Justices’ ideology explain the divisions. Those of you who have encountered the attitudinal model in class will nod sagely. You, and the press, will be wrong.

Suppose the Justices who are usually called “conservative” were to resign tomorrow and be replaced by President Obama. The reconstituted Court still would find lots of cases to be hard. It would grant review of those hard cases and decide many of them five to four. Cases that the Roberts Court finds hard and decides 5-4, this hypothetical Court would find easy and decide 9-0; lawyers would stop presenting those disputes. But they would bring more and more of the disputes that divide the new Court.

To those who specialize in economic analysis of law, the effect is known as selection pressure in litigation. The choices made by lawyers, and the judges themselves, ensure substantial disagreement even when there is no ideologi-cal difference among the judges — which also makes it hard to blame politics for the disagreement we actually ob-serve. The rate of disagreement among the Justices has been stable for more than 70 years.1 The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President. Selection pressure is responsible for this stability.

Turn from law to science. Is Pluto a planet? Astronomers answered no by a closely divided vote. Is Einstein’s the-ory of general relativity right, or should it be replaced by modified Newtonian dynamics (MOND)? Should string theory replace the approach known as the standard model? Scientists disagree about these and many other questions. There’s no need to resort to ideology or politics to understand disagreement among specialists who tackle a disci-pline’s hardest questions — which is what the Supreme Court does.

Given selection pressure in litigation, the puzzling feature of the judicial system is agreement. There is much more agreement than the attitudinal model — or anyone who has read Wittgenstein and other language skeptics — can explain.

Judges of my court agree in 97 percent of all appeals.2 The Supreme Court decides about 40 percent of its cases unanimously — and these are the hardest cases in the legal system, which usually reach the Court because judges of other courts were at odds. It isn’t just technical disputes that end unanimously. Last January the Court decided Perry v. Perez,3 a reapportionment case that concerned how many districts in Texas would be drawn to favor Hispanic can-didates. All nine Justices rejected the contentions of both the Obama Administration (representing the political Left’s perspective) and the State of Texas (espousing the Right’s perspective). Both state and national politicians, and edito-rial writers, had strongly disagreed about what should be done in Perry; the Justices resolved the case unanimously.

Here’s another example. Last Monday, the Supreme Court considered whether a child conceived through in vitro fertilization, after the father’s death, is entitled to benefits on the father’s account under the Social Security program.

† Chief Judge, U.S. Court of Appeals for the Seventh Circuit. Reprinted with the kind permission of the author and Swarthmore College. Edi-tor’s note: Endnotes have been converted to footnotes. 1 See Frank H. Easterbrook, Agreement Among the Justices: An Empirical Note, 1984 S. Ct. Rev. 389; Paul H. Edelman, David E. Klein & Stefanie A. Lindquist, Consensus, Disorder, and Ideology on the Supreme Court, 9 J. Empirical Legal Studies 129 (2012). 2 See Frank B. Cross, Decision Making in the U.S. Courts of Appeals (2007). 3 Perry v. Perez, 132 S. Ct. 934 (2012).

251

This question had divided appellate judges. Many articles in the press — the legal press and legal blogs as well as the popular press — depicted the case as an opportunity for the Justices to express their preferences about religious ver-sus scientific views of conception and family status. But the Justices saw it only as a dispute about the meaning of stat-utory language. The case was resolved unanimously.4

Something other than ideology produces this remarkable degree of consensus in the legal system’s toughest cases. Judges reach agreement even when selection pressure says they shouldn’t be able to. You therefore should think bet-ter of the judicial system than the editorial pages do. In the United States, the Rule of Law really does differ from a Rule of Judges. Neutrality is a comfort to all who must stand before a court, and to all of us who favor equal justice under law. You should keep this in mind as you encounter the legal system, whether as a participant or as a reader. And if some day I meet some of you as advocates, students, or colleagues, I look forward to the opportunity.

4 Astrue v. Capato, 132 S. Ct. xxx (May 21, 2012).

252

EXEMPLARY LEGAL WRITING 2012

•MISCELLANY•

BRIEF OF BOB KOHN AS AMICUS CURIAE

U.S. v. Apple, Inc. Civil Action No.12-CV-2826 (DLC) (S.D.N.Y.) (filed Sept. 4, 2012)

Bob Kohn & Julia Alekseyeva†

Editor’s note: We cannot word-process this brief, and so we have done our best to provide instead a facsimile on the following pages.

† Bob Kohn is Chairman and CEO, RoyaltyShare, Inc. Julia Alekseyeva is an artist and a graduate student at Harvard University. See www.jalekseyeva.com. Reprinted with the kind permission of the artist and the author. Copyright © 2013 Julia Alekseyeva and Bob Kohn.

253

KOHN & ALEKSEYEVA, AMICUS BRIEF, U.S. V. APPLE, INC.

254


255


256


257


258


259


260


261

Documents

Institutions of American Law (Davies) 2016 (summer) textbook