ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME ELEVEN

ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME ELEVEN

FALL 2005

NUMBER ONE

TABLE OF CONTENTS ARTICLES Congressional Oversight of Counterterrorism and Its Reform………………………………….... Robert F. Blomquist Samaritans: Good, Bad and Ugly: A Comparative Law Analysis…………………………………….… Damien Schiff On Teaching Neo-Darwinism In Public Schools: Avoiding the Pall of Orthodoxy and the Threat of Establishment…………………………………...………………..… L. Scott Smith NOTES & COMMENTS Unlocking America’s Courthouse Doors: Restoring a Presumption of First Amendment Access as a Means of Reviving Public Faith in the Judiciary…….…………………… Nicole J. Dulude Atlantic States Marine Fisheries Commission: Getting a Grip On Slippery Fisheries Management………………………………….. Joseph A. Farside, Jr. Opening Ballot Access to Political Outsiders: How Third Parties Could Use Cook v. Gralike to Challenge the Dominance of America’s Two-Party System………..……...………………….. Matthew M. Mannix

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Articles Congressional Oversight of Counterterrorism and Its Reform Robert F. Blomquist*

I.

Introduction and Overview .................................................... 2 America the Vulnerable .................................................... 2 The Congressional Oversight of 9/11 and its Failure ..... 5 The Origins, Purposes, and Structure of the Joint II. Inquiry .................................................................................... 6 A. Origins and Purposes ....................................................... 6 B. The Structure of the Joint Inquiry Report....................... 8 III. The JIR’s Findings and Conclusions.................................... 17 A. The Forest Versus the Trees Problem............................. 17 B. The Right Hand Versus the Left Hand Problem ........... 20 C. The Chicken Little Problem............................................ 22 D. The “Who’s On First?” Problem...................................... 23 E. The “Show Me the Money” Problem ............................... 28 F. The Dueling Banjoes Problem........................................ 29 G. The Through the Glass Darkly Problem........................ 32 H. The Good Cop/Bad Cop Problem .................................. 32 I. The Catch-22 Problem.................................................... 34 IV. The JIR’s Recommendations ................................................ 37 A. Suggested Statutory or Budgetary Changes in National Security Laws.................................................. 38 B. Requested Reports From Executive Branch Agencies.... 43 A. B.

* Professor of Law, Valparaiso University School of Law. B.S., University of Pennsylvania (Wharton School), 1973. J.D., Cornell University, 1977. My thanks go to William Banks, Robert Turner, and Don Wallace for helpful and insightful comments regarding an earlier draft.

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C.

Mandates for Executive Action....................................... 47 Additional Views of Joint Inquiry Members of Congress.... 50 A. Senator Richard C. Shelby............................................. 51 B. Representative Mike Castle ............................................ 56 C. Senator Mike DeWine ..................................................... 57 D. Representative Jane Harman......................................... 60 E. Senator Jon Kyl & Senator Pat Roberts ........................ 61 1. A Perspective on Process.............................................. 61 2. Claimed Deficiencies in the JIR.................................. 64 3. Criticism of JIR Recommendations ............................ 66 VI. Congress and the Art of Oversight of Counterterrorism Policy ....................................................... 66 A. Congress’ Constitutional Role of Executive Oversight......................................................................... 66 B. The Lost Art of Congressional Oversight....................... 67 C. Improving Congressional Oversight of Counterterrorism ............................................................ 69 1. Consolidate Intelligence Functions ............................. 69 2. Foster Intelligence Expertise ....................................... 70 3. Experiment With More Decentralized and Indirect Forms of Intervention .................................................. 70 VII. Conclusion ............................................................................. 75 V.

I. INTRODUCTION AND OVERVIEW A. America the Vulnerable As Jonathan Raban wrote in a 2005 essay in the New York Review of Books: In its present form, the [American] War on Terror is a crippling, expensive, meagerly productive effort to locate, catch, and kill bad guys around the globe. Its successes are hardly less random, or more effective in the long-term, than those that might be achieved by a platoon of men armed with flyswatters entering a slaughterhouse whose refrigeration has been off for a week.1 Sobering

facts

support

Raban’s

flyswatters-in-a-

1. Jonathan Raban, The Truth About Terrorism, N.Y. REV. BKS. 22, 25 (Jan. 13, 2005).

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slaughterhouse metaphor. Stephen Flynn, a former Coast Guard commander and director of global issues on the National Security Council staff under President Bill Clinton, has written an entire book, published in 2004, on the subject: America the Vulnerable: How Our Government is Failing to Protect Us From Terrorism.2 Flynn argues that “[p]aradoxically, the United States has no rival when it comes to projecting its military, economic, and cultural power around the world,” yet “we are practically defenseless at home.”3 In sobering tones—linking our national unpreparedness for 9/11 to our homeland security at present—Flynn summarizes our current state of national vulnerability to terrorism in an extract worthy of complete quotation: If September 11, 2001, was a wake-up call, clearly America has fallen back asleep. Our return to complacency could not be more foolhardy. The 9/11 attacks were not an aberration. The same forces that helped to produce the horror that befell the nation on that day continue to gather strength. Yet we appear to be unwilling to do what must be done to make our society less of a target. Instead, we are sailing into a national security version of the Perfect Storm. Homeland security has entered our post-9/11 lexicon, but homeland insecurity remains the abiding reality. With the exception of airports, much of what is critical to our way of life remains unprotected. *** From water and food supplies; refineries, energy grids, and pipelines; bridges, tunnels, trains, trucks and cargo containers; to the cyber backbone that underpins the information age in which we live, the measures we have been cobbling together are hardly fit to deter amateur thieves, vandals, and hackers, never mind determined terrorists. Worse still, small improvements are often oversold as giant steps forward, lowering the guard of 2. See generally STEPHEN FLYNN, AMERICA THE VULNERABLE: HOW OUR GOVERNMENT IS FAILING TO PROTECT US FROM TERRORISM (2004). 3. Id. at 3 (emphasis added).

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average citizens as they carry on their daily routine with an unwarranted sense of confidence.4 In the American constitutional system, of course, matters of foreign policy and national security are delegated by the People principally to the president and executive agencies under his purview (e.g., the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the armed forces of the United States).5 Congress, however, has from the founding days of the Republic exercised “[a]ll legislative powers”—and related specific powers—forming a tradition of vigorous oversight of executive branch activities, in general, and of foreign policy oversight and national security policy oversight, in particular.6 Yet, how has Congress performed its oversight responsibilities in the wake of 9/11? And, how is it equipped to handle oversight of national counterterrorism policy and its implementation in the remainder

4. Id. at 1-2. See also AMITAI ETZIONI, FROM EMPIRE TO COMMUNITY 11820 (2004) (comparing “small-scale terrorism” with the “massive terrorism” risks of attacks on domestic populations with weapons of mass destruction (WMD), opining that “[t]he difference between small-scale and massive terrorism is as significant as the difference between a crime wave and genocide,” providing the horrific hypothetical of al Qaeda “[getting] its hands on a nuclear device” that could conceivably “obliterate Manhattan, Washington, D.C., or Tel Aviv”). 5. The principal Constitutional provisions which support presidential power over foreign policy and national security are: U.S. CONST. art. II, § 1, cl. 1 (“The executive power shall be vested in a President of the United States of America”), § 1, cl. 8 (prescribing a presidential oath to “preserve, protect, and defend the Constitution of the United States”), § 2, cl. 1 (the “President shall be commander in chief of the armed forces”), and § 2, cl. 2 (presidential power, with advice and consent of the Senate to “make treaties”). 6. The principal constitutional provisions which support the congressional power of oversight over the executive branch are: U.S. CONST. art. I, § 1 (“[a]ll legislative powers herein granted shall be vested in a Congress of the United States”), § 7, cl. 2 (passage of bills), § 8, cl. 1 (taxing power), § 8, cl. 2 (borrowing power), § 8, cl. 3 (regulation of foreign and interstate commerce), § 8, cl. 4 (naturalization power), § 8, cl. 5 (coinage and regulation of foreign coin value powers), § 8, cl. 10 (powers to punish piracies and “felonies committed on the high seas”), § 8, cl. 11 (power to “declare war” and related powers), § 8, cl. 12 (power to “raise and support armies”), § 8, cl. 13 (power to “provide and maintain a navy”), § 8, cl. 14 (power to “make rules for the government and regulation of the land and naval forces”), § 8, cl. 15 (powers to “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions”), § 8, cl. 16 (powers to organize army and discipline militia), and § 8, cl. 18 (“necessary and proper” power to make laws).

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of the first decade of the twenty-first century? Trying to provide some tentative answers to the two aforementioned questions will be the overarching purposes of this Article. B. Congressional Oversight of 9/11 and its Failure Just when the Nation needed adroit and resolute oversight of the causes and meaning of 9/11, the United States Congress botched the job. Although Congress went through the motions of overseeing how and why the executive branch—through such agencies as the CIA and FBI—neglected to anticipate and prevent the Attack on America on September 11, 2001, for reasons which I seek to explain in this Article, the congressional exercise was a charade, and the publication of its two-and-one-half inch thick, royal blue-covered report, entitled Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001 (hereinafter Joint Inquiry Report or JIR),7 was a dismal failure. As I will demonstrate, the 9/11 oversight failure of Congress was due to a deficiency of institutional competence in matching and reining in the executive branch’s effort to stonewall and obfuscate. While Congress tried to save face for its oversight failure by acquiescing to the creation of the National Commission on Terrorist Attacks Upon the United States (the “9/11 Commission”),8 this maneuver was not constitutionally contemplated congressional oversight but congressional abdication to executive branch manipulation. The central thesis of my Article, then, is that Congress must resuscitate its institutional competence for overseeing American counterterrorism policy and its implementation. As I will explain, Congress can accomplish renewed competence for oversight of national counterterrorism through three specific actions: (1) consolidating intelligence

7. U.S. SENATE SELECT COMM. ON INTELLIGENCE & U.S. HOUSE PERMANENT SELECT COMM. ON INTELLIGENCE, REPORT ON JOINT INQUIRY INTO INTELLIGENCE COMMUNITY ACTIVITIES BEFORE AND AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, S. REP. NO. 107-351, H.R. REP. NO. 107-792 (2002) [hereinafter JOINT INQUIRY REPORT]. 8. See Intelligence Authorization for the Fiscal Year 2003, Pub. L. No. 107-306, 116 Stat. 2383 (2002). The 9/11 Commission ultimately prepared a report. See NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT (2004).

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functions, (2) fostering intelligence expertise among its members, and (3) experimenting with more decentralized and indirect forms of intervention with executive branch counterterrorism agencies. Yet, since what is past is prologue to purposeful reform, a substantial part of my Article is devoted to unpacking and analyzing what Congress did and did not do leading up to its issuance of the Joint Inquiry Report. Indeed, the meaning of the Joint Inquiry Report can best be understood as a multi-flawed legal process. Indeed, one of the purposes of this Article is to analyze the Joint Inquiry Report from three process perspectives: (1) the process of congressional oversight of executive intelligence gathering activities in order to interpret the meaning of the terrorist attacks of 9/11; (2) the attempt to interpret the process failures of America’s intelligence agencies leading up to 9/11; and (3) the attempt to recommend new government processes of national intelligence and security. The remainder of the Article is divided into five parts. Part II describes the origins, purposes, and structure of the JIR—an undertaking by two permanent committees of Congress, one from the House of Representatives and one from the Senate.9 Part III discusses and interprets the findings and conclusions of the Joint Part IV examines the recommendations Inquiry Report.10 contained in the congressional document.11 Part V focuses on the additional views (in the nature of dissenting and concurring opinions) of members of the Joint Inquiry.12 Part VI discusses Congress’ constitutional responsibility for vigorous oversight of the executive branch, the lost art of congressional oversight, and some ideas for improving oversight of counterterrorism.13 II. THE ORIGINS, PURPOSES, AND STRUCTURE OF THE JOINT INQUIRY

A. Origins and Purposes In the words of the Joint Inquiry Report, “[i]n February 2002 the Senate Select Committee on Intelligence and the House

9. 10. 11. 12. 13.

See infra notes 14-55 and accompanying text. See infra notes 56-122 and accompanying text. See infra notes 123-77 and accompanying text. See infra notes 178-251 and accompanying text. See infra notes 252-304 and accompanying text.

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Permanent Select Committee on Intelligence agreed to conduct a Joint Inquiry into the activities of the U.S. Intelligence Community in connection with the terrorist attacks perpetrated against our nation on September 11, 2001.”14 According to the JIR, “[r]eflecting the magnitude of the events of that day, the Committees’ decision was unprecedented in Congressional history: for the first time, two permanent committees, one from the House and one from the Senate, would join together to conduct a single, unified inquiry.”15 The three key purposes of the Joint Inquiry were to: (1) “conduct a factual review of what the Intelligence Community knew or should have known prior to September 11, 2001, regarding the international terrorist threat to the United States, to include the scope and nature of any possible international terrorist attacks against the United States and its interests”;16 (2) “identify and examine any systematic problems that may have impeded the Intelligence Community in learning of or preventing these attacks in advance”;17 and (3) “make recommendations to improve the Intelligence Community’s ability to identify and prevent future international terrorist attacks.”18 The Joint Inquiry Report highlights the congressional oversight process which was pursued (in terms of documents considered, witnesses interrogated, and the like) to create a deceptive impression of thoroughness and completeness. In this regard, the JIR states:

14. JOINT INQUIRY REPORT, supra note 7, at 1. While the Senate Select Committee on Intelligence has no subcommittees, the name of one of the four subcommittees of the House Permanent Select Committee on Intelligence— Subcommittee on Terrorism and Homeland Security—reflects the post-9/11 national security context. See MICHAEL BARONE & RICHARD E. COHEN, THE ALMANAC OF AMERICAN POLITICS 2004 1799, 1806 (Charles Mahtesian ed., National Journal Group 2003). Interestingly, the House now has a separate committee that did not participate in the Joint Inquiry called the Select Committee on Homeland Security, which has five subcommittees: Cybersecurity, Science, Research and Development; Emergency Preparedness & Response; Infrastructure & Border Security; Intelligence & Counterterrorism; and Rules. Id. at 1807. 15. JOINT INQUIRY REPORT, supra note 7, at 1. There have been, however, joint committee undertakings in the past by both the House of Representatives and the Senate. See infra note 255 and accompanying text. 16. JOINT INQUIRY REPORT, supra note 7, at 1. 17. Id. 18. Id.

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During the course of this Inquiry, these Committees have held nine public hearings as well as thirteen closed sessions in which classified information has been considered. In addition, the Joint Inquiry Staff has reviewed almost 500,000 pages of relevant documents from the Intelligence Community agencies and other sources, of which about 100,000 pages have been selected for incorporation into the Joint Inquiry’s records. The Staff also conducted approximately 300 interviews and has participated in numerous briefings and panel discussions, that have involved almost 600 individuals from the Intelligence Community agencies, other U.S. Government organizations, state and local entities, and representatives of the private sector and foreign governments.19 B. The Structure of the Joint Inquiry Report The principal JIR consists of 435 pages (in addition to cover letters,20 a foreword,21 a summary table of contents,22 a detailed 19. Id. at 2. 20. Id. (following the title page). Interestingly, the transmittal letter of Dec. 20, 2002 to Robert C. Byrd, President Pro Tempore of the U.S. Senate, from Bob Graham, Chair of the Senate Select Committee on Intelligence, and Richard Shelby, Vice Chair, indicated that the “highly classified and sensitive information” not included in the JIR would be available to “all members of the Senate” for readings in “secure facilities of the Senate Select Committee on Intelligence.” Id. The House of Representatives transmittal letter was more restrictive. The transmittal letter of Dec. 20, 2002 to J. Dennis Hastert, Speaker of the House, from Porter Goss, chair, and Nancy Pelosi, ranking Democrat, while indicating that classified documents not included in the JIR would be held in “a Sensitive Compartmented Information Facility (SCIF),” made no mention in the transmitted letter to the Speaker of the House of reading access by other members of the House to the classified material. Id. 21. JOINT INQUIRY REPORT, supra note 7, at 1 (following the Senate and House transmittal letters). The foreword provides a three paragraph explanation for understanding additions and deletions to the original report (before classification review). The foreword describes the process of JIR writing, classification, addition, and redaction as follows: This is the declassified version of the Final Report of the Joint Inquiry that was approved and filed with the House of Representatives and the Senate on December 20, 2002. With the exception of portions that were released to the public previously (e.g., the additional views of Members, the GAO Anthrax Report,

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etc.), this version has been declassified by the Intelligence Community prior to its public release. That review was for classification purposes only and does not indicate Intelligence Community agreement with the accuracy of this report, or concurrence with its factual findings or conclusions. At appropriate points in the report, relevant information that developed after the report was filed, or that has appeared in other public sources, has been inserted and is denoted with an asterisk (*) and an accompanying footnote. Where necessary, information that the Intelligence Community has identified as classified for national security purposes has been deleted. Such deletions are indicated with brackets and a strikethrough [———————]. In other portions of the report, alternative language that the Intelligence Community has agreed is unclassified has been substituted for the original report language which remains classified. Paragraphs that contain alternative language, whether one word or several sentences, have been identified by brackets at the beginning and end of the paragraph. As a result of these changes to the text, the page numbers at the bottom of each page do not match those of the original report. In order to preserve a record of the original pagination, page numbers have been inserted in gray font [page xx] in the text to mark where the corresponding pages begin and end in the original report. Id. From the process perspective of congressional oversight of executive intelligence gathering, one is reminded of the M.C. Escher print depicting a hand drawing another hand drawing the original hand. 22. Id. at i. This is the first page of the JIR that contains capital letters in gray font with a strikethrough, at both the top and bottom of the page, with the words “TOP SECRET.” Every page of the JIR from i through 435 bears the same “TOP SECRET” strikethrough markings. See generally id. The summary table of contents reads as follows: Table of Contents Members of the Joint Inquiry Joint Inquiry Staff Abridged Findings and Conclusions Recommendations Final Report Part One-The Joint Inquiry • The Context • Factual Findings • Conclusions-Factual Findings • Systemic Findings • Related Findings Part Two-Narrative-The Attacks of September 11, 2001 Part Three-Topics-The Attacks of September 11, 2001

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table of contents,23 committee membership and staff rosters,24 nine separate pages of “[a]bridged [f]indings [a]nd [c]onclusions”25 incorporated into the document, and a 17-page errata set of recommendations).26 Part Two-Narrative-The Attacks of September 11, 2001 consists of nine principal headings: I. The Plot Unfolds for the Attacks of September 11, 2001.27 II. Pentagon Flight Hijackers Khalid al-Mihdhar, Nawaf alHazmi and Salem al-Hazmi.28 III. NASA Communication Intercepts Related to Khalid alMihdhar, Nawaf and Salem al-Hazmi.29 IV. Nawaf al-Hazmi and Khalid al-Mihdhar Had Numerous Contacts With an Active FBI Informant.30 V. Associates of the September 11, 2001 Terrorists in the United States.31

Part Four-Finding, Discussion and Narrative Regarding Certain Sensitive National Security Matters Glossary of Terms and Key Names Additional Views of Members of the Joint Inquiry Appendices Id. 23. Id. at ii-vii. 24. Id. at viii-x. 25. Id. at xi-xix. 26. U.S. SENATE SELECT COMM. ON INTELLIGENCE & U.S. HOUSE PERMANENT COMM. ON INTELLIGENCE REPORT ON JOINT INQUIRY INTO INTELLIGENCE COMMUNITY ACTIVITIES BEFORE AND AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, S. REPT. NO. 107-351, H. REPT. NO. 107-792 (Dec. 2002) (ERRATA PRINT) [hereinafter JOINT INQUIRY REPORT ERRATA PRINT]. From the process perspective of congressional oversight of executive intelligence gathering, one is reminded of the scene in the movie MR. SMITH GOES TO WASHINGTON (Columbia Pictures, 1939) involving the character of Jefferson Smith, played by Jimmy Stewart, being flustered and rattled by the august presence of the more senior senator and his wiley daughter. Stewart drops and fumbles with his hat throughout the scene, only to knock over a lamp at the end of the scene. 27. JOINT INQUIRY REPORT, supra note 7, at 128. 28. Id. at 143. 29. Id. at 155. A considerable portion of the content is deleted by brackets and strikethroughs. See id. at 155-57. 30. Id. at 157 (brackets omitted). A considerable portion of the content is deleted by brackets and strikethroughs. Id. at 157-68. 31. Id. at 168. A considerable portion of the content is deleted by

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VI. Germany-Investigation of the Hamburg Cell.32 VII. The Hijackers’ Visas.33 VIII. The Rising Threat and Context of the September 11 Attacks.34 IX. The Development of U.S. Counterterrorism Policy Before September 11.35

brackets and strikethroughs. Id. at 168-83. 32. JOINT INQUIRY REPORT, supra note 7, at 183. A considerable portion of the content is deleted by brackets and strikethroughs. Id. at 183-87. 33. Id. at 187. 34. Id. at 190. This heading of the JIR is subdivided into six subheadings: A. New Breed of Terrorists B. Emergence of Usama Bin Ladin and al-Qa’ida C. Attributes of Bin Ladin’s Terrorist Operations D. Intelligence about Bin Ladin’s Intentions to Strike Inside the United States E. Indications of a Possible Terrorist Attack in Spring and Summer 2001 F. Intelligence Information on Possible Terrorist Use of Airplanes as Weapons. Id. at 191, 194, 196, 198, 203, 209. It should be noted that the JIR uses different spellings for Al Qaeda. To the extent that I discuss matters in my own language I will utilize the aforementioned spelling. Otherwise, when I am quoting the JIR I will use the spelling provided by Congress. 35. Id. at 215. A considerable portion of the content is deleted by brackets and strikethroughs. See id. at 215-49. This heading of the JIR is subdivided into 19 sub-headings: A. Counterterrorism as an Intelligence Priority B. Growing Importance in the Clinton Administration C. Uncertainty During the Transition D. The George W. Bush Administration E. Competing Priorities F. Policy Measures to Fight Terrorism G. The Law Enforcement Approach H. Disruption and Renditions I. Afghanistan as a Terrorist Sanctuary J. The Intelligence Community K. The Declaration of War L. The Intelligence Community’s Response M. Shortcomings in the Intelligence Community’s Response

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Part Three—Topics—The Attacks of September 11, 2001 consists of fourteen principal headings: I. Counterterrorism Resources.36 II. Foreign Liaison.37 III. Covert Action and Military Operations against Bin Ladin.38 IV. Strategy to Disrupt Terrorist Funding.39 V. Khalid Shaykh Mohammed: The Mastermind of September 11.40 VI. The FBI’s Investigation of Zacarias Moussaoui before September 11.41 VII. The Phonemix Electronic Communication (EC).42 VIII. Strategic Analyses.43 IX. Views of Outside Experts on the Intelligence Community.44 N. The President and Senior Policy Advisor Responsibility O. Lack of an Integrated Response P. The Intelligence Community’s Failure to Establish a Coordinated Domestic Focus Before September 11, 2001 Q. Steps Taken to Fight International Terrorism at Home R. Lack of Focus on Domestic Threat S. Limited Counterterrorism by Other Intelligence Community Members. Id. at 216-20, 222, 225-26, 229-32, 234, 236, 241, 243, 247. 36. Id. at 250. 37. JOINT INQUIRY REPORT, supra note 7, at 270. A considerable portion of the content is deleted by brackets and strikethroughs. See id. at 270-78. 38. Id. at 279. The vast majority of the content is deleted by brackets and strikethroughs. See id. at 279-307. 39. Id. at 308. 40. Id. at 309. A considerable portion of the content is deleted by brackets and strikethroughs. See id. at 309-15. 41. Id. at 315. 42. JOINT INQUIRY REPORT, supra note 7, at 325. 43. Id. at 336. This heading of the JIR is subdivided into four subheadings: A. The Intelligence Community’s Lack of Strategic Analysis B. Analyst Qualifications and Training C. Analysts’ Access to Information D. Language Skills Id. at 336, 339, 341, 343. 44. Id. at 345. This heading of the JIR is subdivided into seven subheadings:

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X. XI. XII. XIII. XIV.

Information Sharing.45 Technology Gaps.46 Technical Collection of Terrorist Communications.47 Human Intelligence (HUMINT) Collection.48 Summary of Joint Inquiry Review of Anthrax Attacks.49 The final part of the JIR in chief, Part Four—Finding, Discussion and Narrative Regarding Certain Sensitive National Security Matters, is, perhaps, the most remarkable part of the Joint Inquiry Report. The simple reason for its remarkability is that, with the exception of a bracketed finding and bracketed discussion (indicating the alternative language of the original JIR language cleared by the Intelligence Community), virtually all twenty-seven pages of this part are deleted! 50 Following the JIR in chief is a “Glossary of Terms and Acronyms,”51 a table of “Key Names,”52 a table of “September 11, A. Setting Priorities B. Strategy and Organization C. Should a Strong Director of National Intelligence Be Established? D. Should the Same Person be both DNI and Director of the CIA? E. Counterterrorism Within the United States and Creation of a Domestic Intelligence Agency F. A Legislative Charter for the Intelligence Community G. Respect for the Rule of Law Id. at 346-49, 353. 45. Id. at 354. 46. Id. at 368. The vast majority of the content is deleted by brackets and strikethroughs. See id. at 368-73. 47. JOINT INQUIRY REPORT, supra note 7, at 373. The vast majority of the content is deleted by brackets and strikethroughs. See id. at 373-85. 48. Id. at 385. A considerable portion of the content is deleted by brackets and strikethroughs. See id. at 385-94. 49. Id. at 393. 50. See supra note 21, at 395-422 and accompanying text. 51. JOINT INQUIRY REPORT, supra note 7, at 424-33. Among the more fascinating definitions contained in this portion of the JIR are the following: Actionable Intelligence: Intelligence information that is directly useful to customers for immediate exploitation without having to go through the full intelligence production process; it may address strategic or tactical needs, close support of US negotiating teams, or action elements dealing with such matters as international terrorism or narcotics.

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Id. at 424. Asset: (1) Any resource—a person, group, relationship, instrument, installation, supply—at the disposition of an intelligence agency for use in an operational or support role. (2) A person who contributes to a clandestine mission but is not a fully controlled agent. Id. Clandestine Operation: A preplanned secret intelligence collection activity or covert political, economic, propaganda, or paramilitary action conducted so as to assure the secrecy of the operation; encompasses both clandestine collection and covert nation. Id. at 425. Classification: The determination that official information requires, in the interest of national security, a specific degree of protection against unauthorized disclosure, coupled with a designation signifying that such a determination has been made; the designation is normally termed a security classification and includes Confidential, Secret, and Top Secret. Id. Counterintelligence: Information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, persons, or terrorist activities, but not including personnel, physical, document, or communication security programs. Id. Counterterrorism: Offensive measures taken to prevent, deter, and respond to a terrorist act or the documented threat of such an act. Id. at 425-26. Domestic Collection: The acquisition of foreign intelligence information within the United States from governmental or nongovernmental organizations or individuals who are witting sources and choose to cooperate by sharing such information. Id. at 427. IC: Intelligence Community—the aggregate of the following executive branch organizations and agencies involved in intelligence activities: the Central Intelligence Agency; the National Security Agency; the Defense Intelligence Agency; offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs; the Bureau of Intelligence and Research of the Department of State; intelligence elements of the

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2001 Hijackers,”53 “Additional Views of Members of the Joint Inquiry,”54 and a number of appendices attached at the end of the JIR.55 military services, the Federal Bureau of Investigation, the Department of Treasury, and the Department of Energy; and staff elements of the office of the Director of Central Intelligence. Id. at 428-29. International Terrorism: Terrorist acts that transcend national boundaries in their conduct or purpose, the nationalities of the victims, or the resolution of the incident. Such an act is usually designed to attract wide publicity to focus attention on the existence, cause, or demands of the perpetration. Id. at 429-30. PDB: President’s Daily Brief (prepared by CIA for President and very small number of other senior officials)[.] Id. at 431. 52. Id. at 434. 53. Id. at 435. 54. Id. (consisting of separately paginated additional views of Senator Richard C. Shelby, Representative Michael N. Castle, Senator Mike DeWine, Representative Jane Harman, Senator John Kyl and Senator Pat Roberts, Senator Carl Levin, Senator Barbara Mikulski, and Representative Tim Roemer). 55. Id. The list of appendices to the JIR includes the following: • Initial Scope of Joint Inquiry. • Supplemental Joint Inquiry Rules. • Joint Inquiry Hearings. • List of Persons Interviewed. • Counterterrorism Organizations Within the Intelligence Community. • Evolution of the Terrorist Threat and the U.S. Response, 1983-2001. • Selected Events in the Chronology of Terrorism, 1982-2001. • CIA/FBI Failures in Regard to Two September 11 Hijackers, The Phoenix Electronic Communication. • Moussaoui Related FBI Field Agent Notes and Field Office/Headquarters E-mails. • General Accounting Office: Analysis of U.S. Anthrax Attacks. • CTC Watchlisting Guidance—December 1999. • The Joint Inquiry in Court. • Access Limitations Encountered by the Joint Inquiry.

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Id. (following page 435). While a detailed discussion of these voluminous appendices is beyond the scope of this Article, it is tempting to offer a few miscellaneous comments. First, most of the names on the Appendix List of Persons Interviewed are deleted by brackets and strikethroughs, although their official positions are referenced. See id. app. at 1-21. Second, the Appendix-Evolution of the Terrorist Threat and the U.S. Response, 19832001, provides a synoptical summary of “big picture” world events, “selected major terrorist events,” and “U.S. institutional responses to terrorism,” although a considerable portion of the content is deleted by brackets and strikethroughs. See id. app. at 1-49. Third, the Appendix-Selected Events in the Chronology of Terrorism, 1982-2001 offers a striking visual timeline of the following types of information: terrorist incidents, information indicating terrorist activity or intentions to strike inside the United States, information indicating terrorist activity or intentions to use airplanes as weapons, and communications intercepts suggesting possible imminent terrorist activities. See id. app. (consisting of eleven unnumbered pages). Fourth, the Appendix Joint Inquiry in Court details the tripartite branch processes of the executive, legislative and judicial branches surrounding the investigation and litigation involving Zacarias Moussaoui—the suspected “20th hijacker” on 9/11. See id. app. at 1-5. Legal counsel from the congressional offices of Senate Legal Counsel, House General Counsel, and General Counsel of the Joint Inquiry were involved in contesting a DOJ-sought judicial protective order in the Moussaoui case. See id. According to this Appendix: With the assistance of the Offices of Senate Legal Counsel and House General Counsel, the General Counsel of the Joint Inquiry . . . participated in the argument on August 29, 2002. The reply asked the District Court to deny the DOJ’s requested relief for three main reasons: (1) the protective order does not govern testimony before Congress, nor does it govern the production of documents to Congress, the use of documents by it, or the issuance of its reports; (2) Local Criminal Rule 57 specifically does not preclude the holding of legislative hearings or the issuance of legislative reports, and (3) the proposed expansion of the [protective] order by the Department of Justice runs afoul of the separation of powers. Id. app. at 3. The DOJ lost its motion to expand the scope of the Moussaoui judicial protective order to cover the Joint Inquiry legislative proceedings. Id. at 4-5. Yet, the following novel procedure was allowed by the Joint Inquiry: In accordance with its commitment to consult with the Department of Justice, the Joint Inquiry continued to allow DOJ to review and comment regarding the contents of staff statements related to the Moussaoui case and other matters. At the Joint Inquiry’s September 24 [2002] public hearing that followed concerning the Moussaoui matter, the Joint Inquiry permitted a DOJ representative to attend with FBI witnesses for the purpose of advising whether any question called for an answer that might impair the Moussaoui prosecution. Thus, the Inquiry was able to proceed with a full public exposition of the issues raised in the Moussaoui investigation without impeding the due process and fair interests of Moussaoui and the DOJ. Id. at 5.

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III. THE JIR’S FINDINGS AND CONCLUSIONS

The Joint Inquiry Report contains five key factual findings and conclusions about the events leading up to the terrorist attacks on September 11, sixteen “systemic findings” and conclusions about the American Intelligence Community’s deficient counterterrorist efforts before September 11, and four “related findings” and conclusions involving broader policy questions beyond the American Intelligence Community. The discussion that follows attempts to deconstruct this “bureaucratspeak” and to reconceptualize these twenty-five congressional oversight findings and conclusions into nine generic process failures of the American Intelligence Community. These nine process failures are as follows: (A) the Forest Versus the Trees Problem; (B) the Right Hand Versus the Left Hand Problem; (C) the Chicken Little Problem; (D) the “Who’s on First?” Problem; (E) the “Show Me the Money” Problem; (F) the Dueling Banjoes Problem; (G) the Through the Glass Darkly Problem; (H) the Good Cop/Bad Cop Problem; and (I) the Catch-22 Problem. As will be discussed in greater detail below, these nine generic process failures of the American Intelligence Community are interrelated and intergovernmental (horizontal as well as vertical) in nature. A. The Forest Versus the Trees Problem The bulk of the factual findings and conclusions of the JIR can be better understood as a problem of perspective: while the American Intelligence Community was obsessed with gathering discrete details, the process of intelligence lacked a strategic capability to put individual pieces of the terrorism puzzle into a coherent and holistic picture. Thus, the factual findings concerning intelligence on the threats posed by Osama Bin Ladin,56 the Spring and Summer of 2001 information on Al 56. This factual finding of the JIR states: While the Intelligence Community had amassed a great deal of valuable intelligence regarding Usama Bin Ladin and his terrorist activities, none of it identified the time, place, and specific nature of the attacks that were planned for September 11, 2001. Nonetheless, the Community did have information that was clearly relevant to the September 11 attacks, particularly when considered for its collective significance. Id. at xi.

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Qaeda,57 1998-2001 intelligence,58 aircrafts and weapons data,59 and the “collective significance” myopia60 essentially describe a 57. This factual finding of the JIR states: During the spring and summer of 2001, the Intelligence Community experienced a significant increase in information indicating that Bin Ladin and al-Qa’ida intended to strike against U.S. interests in the very near future. JOINT INQUIRY REPORT, supra note 7, at xi. 58. This factual finding of the JIR states: Beginning in 1998 and continuing into the summer of 2001, the Intelligence Community received a modest, but relatively steady, stream of intelligence reporting that indicated the possibility of terrorist attacks within the United States. Nonetheless, testimony and interviews confirm that it was the general view of the Intelligence Community, in the spring and summer of 2001, that the threatened Bin Ladin attacks would most likely occur against U.S. interests overseas, despite indications of plans and intentions to attack in the domestic United States. Id. 59. Factual finding 4 of the JIR states: From at least 1994, and continuing into the summer of 2001, the Intelligence Community received information indicating that terrorists were contemplating, among other means of attack, the use of aircraft as weapons. This information did not stimulate any specific Intelligence Community assessment of, or collective U.S. Government reaction to, this form of threat. Id. 60. Factual finding number 5 of the JIR consists of an overarching finding and ten sub-findings numbered 5a through 5j, inclusive. Overarching finding number 5 states: Although relevant information that is significant in retrospect regarding the attacks was available to the Intelligence Community prior to September 11, 2001, the Community too often failed to focus on that information and consider and appreciate its collective significance in terms of a probable terrorist attack. Neither did the Intelligence Community demonstrate sufficient initiative in coming to grips with the new transnational threats. Some significant pieces of information in the vast stream of data being collected were overlooked, some were not recognized as potentially significant at the time and therefore not disseminated, and some required additional action on the part of foreign governments before a direct connection to the hijackers could have been established. For all those reasons, the Intelligence Community failed to fully capitalize on available, and potentially important, information. Id. Five of the sub-findings relate to the Forest Versus the Trees Problem: sub-finding 5a, concerning “[t]errorist [c]ommunications in 1999” about persons who, after September 11, 2001, were connected with the terrorist attacks of that day, id. at xii (JIR brackets omitted); sub-finding 5b, concerning “Malaysia [m]eeting and [t]ravel of al-Qaida [o]peratives to the

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failure of the American Intelligence Community to appreciate the “forest” that its “trees” of intelligence suggested. Moreover, two of the four “related findings” in the Joint Inquiry Report are in the nature of a forest-versus-the-trees process failure of the American Intelligence Community: the failure of the U.S. Government to “undertake a comprehensive effort to implement defensive measures in the United States” despite intelligence information spanning the time of “1998 through the summer of 2001 indicating that Usama Bin Ladin’s terrorist network intended to strike inside the United States,”61 and the failure of the U.S. Government to benefit from “an alert, mobilized and committed American public” stemming from a lack of notice “to alert the American public to the reality and gravity of the threat” of terrorist attacks before September 11, 2001.62 Indeed, the general conclusion to the JIR factual findings consists of a lamentation over perspective failure before 9/11: In short, for a variety of reasons, the Intelligence Community failed to capitalize on both the individual and collective significance of available information that appears relevant to the events of September 11. As a result, the Community missed opportunities to disrupt the September 11 plot by denying entry to or detaining would-be hijackers; to at least try to unravel the plot through surveillance and other investigative work within the United States; and, finally, to generate a heightened state of alert and thus harden the homeland against attack. No one will ever know what might have happened had

United States” regarding a 2000 rendezvous between two individuals who had a key role in the September 11, 2001 terrorist attacks, id.; sub-finding 5c, dealing with [t]errorist [c]ommunications in [s]pring 2000 regarding known communication involving an individual who had attended the Malaysia meeting, id.(JIR brackets omitted); sub-finding 5g, concerning “[h]ijackers in [c]ontact [w]ith [p]ersons of FBI [i]nvestigative [i]nterest in the United States,” id. at xiv; and sub-finding 5h, concerning the CIA’s awareness, but missed opportunities, of the [h]ijackers’ [a]ssociation in Germany.” Id. (JIR brackets omitted). 61. Related finding 17 of the JIR, JOINT INQUIRY REPORT, supra note 7, at xviii. 62. Related finding 19 of the JIR, id. at xix.

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more connections been drawn between these disparate pieces of information. We will never definitively know to what extent the Community would have been able and willing to exploit fully all the opportunities that may have emerged. The important point is that the Intelligence Community, for a variety of reasons, did not bring together and fully appreciate a range of information that could have greatly enhanced the chances of uncovering and preventing Osama Bin Ladin’s plan to attack these United States on September 11, 2001.63 Importantly, the first systemic finding also speaks of the fundamental failure of the American Intelligence Community to perceive the forest from the trees, noting that “[p]rior to September 11, the Intelligence Community was neither well organized nor equipped, and did not adequately adapt, to meet the challenge posed by global terrorists focused on targets within the domestic Untied States” because of “[s]erious gaps [that] existed between the collection coverage provided by U.S. foreign and U.S. domestic intelligence capabilities” stemming from “inadequate attention” by the CIA “to the potential for a domestic attack” and the inability of the FBI “to identify and monitor effectively the extent of activity by al-Qa’ida and other international terrorist groups operating in the United States.”64 B. The Right Hand Versus the Left Hand Problem A central feature of the factual findings and conclusions of the Joint Inquiry Report is professed amazement by Congress at the two distinct cultures of the CIA, on the one hand, and the FBI, on the other hand. As one of the JIR’s factual findings expresses the problem, the right hand of the American Intelligence Community did not know what the left hand was up to in dealing with known terrorists in the United States before September 11: [Two key hijackers had] numerous contacts with a long time FBI counterterrorism informant in California and . . . a third future hijacker . . . apparently had more limited contact with the informant. In mid-to-late-2000,

63. Conclusion to factual findings of the JIR, id. at xv (emphasis added). 64. Systemic finding 1, id.

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the CIA already had information indicating that [two of the hijackers] had [been in the United States] but the two had not been watchlisted and information suggesting that two suspected terrorists could well be in the United States had not yet been given to the FBI. The San Diego FBI field office that handled the informant in question, did not receive that information [from the CIA] or any of the other intelligence information pertaining to [two terrorists in the country] prior to September 11, 2001. As a result, the FBI missed the opportunity to ask a uniquely well-positioned informant—who denies having any advance knowledge of the plot—to collect information about the hijackers and their plans within the United States.65 One systemic finding of the Joint Inquiry Report speaks of the two cultures dividing the CIA and the FBI and the attendant lack of information sharing between these agencies before September 11.66 A related right hand/left hand systemic finding addresses the divide between the American Intelligence Community versus the non-Intelligence Community.67 65. Factual sub-finding 5d, id. at xii-iii. 66. Systemic finding 9 of the JIR states: The U.S. Government does not presently bring together in one place all terrorism-related information from all sources. While the CIA’s Counterterrorist Center does manage overseas operations and has access to most Intelligence Community information, it does not collect terrorism-related information from all sources, domestic and foreign. Within the Intelligence Community, agencies did not adequately share relevant counterterrorism information, prior to September 11. This breakdown in communications was the result of a number of factors, including differences in the agencies’ missions, legal authorities and cultures. Information was not sufficiently shared, not only between different Intelligence Community agencies, but also within individual agencies, and between the intelligence and the law enforcement agencies. JOINT INQUIRY REPORT, supra note 7, at xvii. 67. Systemic finding 10 of the JIR provides: Serious problems in information sharing also persisted prior to September 11, between the Intelligence Community and relevant non-Intelligence Community agencies. This included other federal agencies as well as state and local authorities. This lack of communication and collaboration deprived those other entities, as well as the Intelligence Community, of access to potentially valuable

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C. The Chicken Little Problem The well-known children’s story about Chicken Little is a cautionary tale about the dangers of over-reaction.68 The deeper social problem illustrated by the Chicken Little parable, however, is when real dangers are underappreciated and under-deterred. Part of this problem might stem from past exaggerations. Alternatively, part of the problem might arise from too many tasks and not enough resources. In either case, it is apparent that the congressional investigation discerned a kind of problem where FBI superiors underappreciated real dangers of domestic terrorist attacks from domestically trained terrorist-pilots. According to an eerie JIR factual finding: On July 10, 2001, an FBI Phoenix field office agent sent an “Electronic Communication” to 4 individuals in the Radical Fundamentalist Unit (RFU) and two people in the Usama Bin Ladin Unit (UBLU) at FBI headquarters, and to two agents on International Terrorist squads in the New York Field office. In the communication, the agent expressed his concerns, based on his first-hand knowledge, that there was a coordinated effort underway by Bin Ladin to send students to the United States for civil aviation-related training. He noted that there was an “inordinate number of individuals of investigative interest” in this type of training in Arizona and expressed his suspicion that this was an effort to establish a cadre of individuals in civil aviation who would conduct future terrorist activity. The Phoenix [electronic communication] requested that FBI Headquarters consider implementing four recommendations: •

accumulate a list of civil university/colleges around the country;

•

establish liaison with these schools;

aviation

information in the “war” against Bin Ladin. The Inquiry’s focus on the Intelligence Community limited the extent to which it explored these issues, and this is an area that should be reviewed further. Id. (emphasis added). 68. For an updated version, see JAMES FINN GARNER, POLITICALLY CORRECT BEDTIME STORIES 57-62 (1994).

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discuss the theories contained in the Phoenix [electronic communication] with the Intelligence Community; and

•

consider seeking authority to obtain visa information concerning individuals seeking to attend flight schools.

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However, the FBI headquarters personnel did not take the action requested by the Phoenix agent prior to September 11, 2001. The communication generated little or no interest at either FBI Headquarters or the FBI’s New York field office.69 D. The “Who’s On First?” Problem While the late comedic team of Abbott and Costello achieved regular laughs in performing their play on words involving different baseball runners with pronouns for names,70 one way of interpreting their routine is as a moral tale of the organizational risks of widespread incompetence. Numerous findings of the Joint 69. Factual sub-finding 5e, JOINT INQUIRY REPORT, supra note 7, at xii. For a journalistic account of the FBI and international terrorism leading up to the events of 9/11, see generally PETER LANCE, 1000 YEARS FOR REVENGE: INTERNATIONAL TERRORISM AND THE FBI—THE UNTOLD STORY (2003). In the discussion supporting factual sub-finding 5e, the JIR suggests that the problem was, at bottom, a resource issue. Before the Joint Inquiry, the Phoenix agent who authored the Phoenix communication testified that: “What I wanted was an analytical product. I wanted this discussed with the Intelligence Community. I wanted to see if my hunches were correct.” He noted, however, that he also knew this type of analytical product took a back seat to operational matters at the FBI: But, I am also a realist. I understand that the people at FBI Headquarters are terribly overworked and understaffed, and they have been for years. And at the time that I am . . . sending this in, having worked this stuff for 13 years, and watched the unit in action over the years, I knew that this was going to be at the bottom of the pile, so to speak, because they were dealing with real-time threats, real-time issues trying to render fugitives back to the United States from overseas for justice. And again, it is a resource issue. The Phoenix agent was correct, and his communication did fall to the bottom of the pile. JOINT INQUIRY REPORT, supra note 7, at 20-21. 70. BUD ABBOTT AND LOU COSTELLO, Who’s On First?, in THE NAUGHTY NINETIES (Universal 1945).

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Inquiry Report portray an incompetent American Intelligence Community (an oxymoron of sorts) in disarray. In the first place, three JIR factual sub-findings relate to specific instances of organizational incompetence leading up to September 11. One sub-finding addresses the legal mistake of FBI officials investigating suspected confederates in the 9/11 hijackings;71 another sub-finding focuses on the maladroit manner in which American officials handled the mastermind of the September 11 attacks while he was awaiting a trial for an earlier act of terrorism;72 and a third sub-finding deals with bungling by the 71. Factual sub-finding 5f, JOINT INQUIRY REPORT, supra note 7, at xiiixiv. The sub-finding provides: In August 2001, the FBI’s Minneapolis field office, in conjunction with the INS [Immigration and Naturalization Service], detained Zacarias Massouri, a French national who had enrolled in flight training in Minnesota. FBI agents there also suspected that Moussaoui was involved in a hijacking plot. FBI Headquarters attorneys determined that there was not probable cause to obtain a court order to search Moussaoui’s belongings under the Foreign Intelligence Surveillance Act (FISA). However, personnel at FBI Headquarters, including the Radical Fundamentalism Unit and the National Security Law Unit, as well as agents in the Minneapolis field office, misunderstood the legal standards for obtaining an order under FISA. As a result, FBI Minneapolis field office personnel wasted valuable investigative resources trying to connect the Chechen rebels to al-Qa’ida. Finally, no one at the FBI apparently connected Moussaoui investigation with the heightened threat environment in the summer of 2001, the Phoenix communication, or the entry of al-Mihdhar and al-Hazmi into the United States. Id. 72. Factual sub-heading 5i, id. at xiv. The sub-finding states: Prior to September 11, the Intelligence Community had information linking Khalid Shaykh Mohammed (KSM), now recognized by the Intelligence Community as the mastermind of the attacks to Bin Ladin, to terrorist plans to use an aircraft as weapons, and to terrorist activity in the United States. The Intelligence Community, however, relegated . . . KSM to rendition target status following his 1996 indictment in connection with the Bojinka Plot and, as a result, focused primarily on his location, rather than his activities and place in the al-Qa’ida hierarchy. The Community also did not recognize the significance of reporting in June 2001 concerning KSM’s active role in sending terrorists to the United States, or the facilitation of their activities upon arriving in the United States. Collection efforts were not targeted on information about KSM that might have helped better understand al-Qa’ida’s plans and intentions and KSM’s role in the September 11 attacks was a surprise to the Intelligence Community.

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National Security Agency (NSA) in neglecting to translate and disseminate intercepted communications that indicated the threat of imminent terrorist attacks in September of 2001.73 In the second place, six systemic findings in the Joint Inquiry Report are properly categorized as “Who’s on First?” Problems. First, systemic finding 2 states: Prior to September 11, 2001, neither the U.S. Government as a whole nor the Intelligence Community had a comprehensive counterterrorist strategy for combating the threat posed by Usama Bin Ladin. Furthermore, the Director of Central Intelligence (DCI) was either unwilling or unable to marshal the full range of Intelligence Community resources necessary to combat the growing threat to the United States.74 Interestingly, the JIR discussion supporting this systemic finding notes that “[t]he Intelligence Community is a large distributed organism. It encompasses 14 agencies and tens of thousands of employees” and “[t]he number of people employed exclusively in the effort against Usama Bin Ladin and Al-Qaeda was relatively small.”75 Yet, revealingly, Congress found that “these people were operating in geographically dispersed locations, often not connected by secure information technologies, and within established bureaucracies that were not culturally or organizationally attuned to one another’s requirements,” while “[m]any of them had limited experience against the target and did not know one another[,]” but “[t]o achieve success in such an environment, leadership is a critical factor” and “the Intelligence Community’s structure made leadership difficult.”76 Moreover, in a searing indictment of the Director of Central Intelligence (DCI),

Id. 73. Factual sub-finding 5j, id. at xv. The sub-finding provides: In the period from September 8 to September 10, 2001, NSA intercepted, but did not translate or disseminate until after September 11, some communications that indicated possible impending terrorist activity. Id. (brackets omitted). The discussion supporting sub-finding 5j is largely deleted or bracketed. Id. at 32. 74. Id. at xvi. 75. Id. at 39. 76. JOINT INQUIRY REPORT, supra note 7, at 39.

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the Joint Inquiry Report discussion concludes that the record “indicates that the DCI did not marshal resources effectively even within the CIA against the threat posed by al-Qa’ida” and “[d]espite the DCI’s declaration to CIA officials that the Agency was at war with Bin Ladin . . . the DCI’s Counterterrorist Center needed additional personnel prior to September 11, and the lack of resources had a substantial impact on its ability to detect and monitor al-Qa’ida’s activities.”77 Second, systematic finding 5, at its heart, rails against the rampant incompetence of the American Intelligence officials, stating: Prior to September 11, the Intelligence Community’s understanding of al Qa’ida was hampered by insufficient analytic focus and quality, particularly in terms of strategic analysis. Analysis and analysts were not always used effectively because of the perception in some quarters of the Intelligence Community that they were less important to agency counterterrorism missions than were operations/personnel. The quality of counterterrorism analysis was inconsistent, and many analysts were inexperienced, unqualified, under-trained, and without access to critical information. As a result, there was a dearth of creative, aggressive analysis targeting Bin Ladin and a persistent inability to comprehend the collective significance of individual pieces of intelligence. These analytic deficiencies seriously undercut the ability of U.S. policymakers to understand the full nature of the threat, and to make fully informed decisions.78 The JIR’s discussion in support of this systematic finding points out the absence of dissenting opinions in the Intelligence Community’s analysis provided to government policymakers, quoting the testimony of the Deputy Secretary of State, Richard Armitage, who observed: I am the consumer. It’s very rare that we get the one off voice or the dissident voice . . . . For a policy maker, the

77. 78.

Id. at 41. Id. at xvi.

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dissident voice is very helpful to either confirm what you think or really open up a new area, and this is not generally done. If I had to say the one biggest weakness in the analysis area, I would say that’s it. Second, it’s the way analysis in the Intelligence Community is generally put forth, and it’s related, and that is consensus . . . . I really would just enforce this observation about the need to get alternative views up, because most everything that’s important here is shrouded in ambiguity and uncertainty. There is a tendency to want to get things scrubbed out to get the differences eliminated.79 Third, systemic finding 8 addresses a “Who’s on First?” Problem: “the continuing erosion of NSA’s [National Security Agency’s] program management expertise and experience has hindered its contribution to the fight against terrorism. NSA continues to have mixed results in providing timely technical solutions to modern intelligence collection, analysis, and information sharing problems.”80 Fourth, systemic finding 11 focuses on ineptness, stating: Prior to September 11, 2001, the Intelligence Community did not effectively develop and use human sources to penetrate the al-Qa’ida inner circle. This lack of reliable and knowledgeable human sources significantly limited the Community’s ability to acquire intelligence that could be acted upon before the September 11 attacks. In part, at least, the lack of unilateral (i.e., U.S.-recruited) counterterrorism sources was a product of an excessive reliance on foreign liaison services.81 Fifth, systemic finding 15 is related to the aforementioned systemic finding 11.82 According to systemic finding 15, the 79. Id. at 68. 80. JOINT INQUIRY REPORT, supra note 7, at xvii. The discussion in support of this systemic finding mentions a lack of basic skills by NSA personnel, “frustration regarding their current working environment,” and “a high level of frustration among contractors who do business with the NSA.” Id. at 76-77. 81. Id. at xvii. The discussion in support of this systemic finding has been sanitized by substantial deletion of national security sensitive information. See id. at 90-96. 82. See supra note 81 and accompanying text.

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American Intelligence Community “depended [too] heavily on foreign intelligence and law enforcement services for the collection of counterterrorism intelligence and the conduct of counterterrorism activities,” while “fail[ing] to coordinate their relationships with foreign services adequately.”83 Finally, systemic finding 16 also reminds one of Abbott and Costello’s famous routine. It states, in a sanitized version that had to be rewritten by congressional staffers to satisfy national security reviewers: The activities of the September 11 hijackers in the United States appear to have been financed, in large part, from monies sent to them from abroad and also brought on their persons. Prior to September 11, there was no coordinated U.S. Government-wide strategy to track terrorist funding and close down their financial support networks. There was also a reluctance in some parts of the U.S. Government to track terrorist funding and close down their financial support networks. As a result, the U.S. Government was unable to disrupt financial support for Usama Bin Ladin’s terrorist activities effectively.84 E. The “Show Me the Money” Problem The phrase “show me the money” was made popular in the film Jerry Maguire when co-star Cuba Gooding Jr., as Rod Tidwell, the pro football player/client, sticks by his sports agent, Jerry Maguire, and insists that Maguire “show me the money.”85 It is an apt phrase to remind us of the importance of money—and the converse situation of a lack of money—in carrying out the preSeptember 11 counterterrorism responsibilities of the United States Intelligence Community. Two systemic findings in the Joint Inquiry Report address “show me the money” problems: systemic findings 3 and 6. 83. JOINT INQUIRY REPORT, supra note 7, at xviii. The discussion in support of this systemic finding is mostly uninformative because of the substantial deletion of national security sensitive information. See id. at 10913. 84. Id. at xviii (brackets omitted). As one would expect in a situation where even the systemic finding, itself, was subject to revision on grounds of national security, the discussion supporting this finding is likewise sanitized. See id. at 113-17. 85. JERRY MAGUIRE (Columbia/Tristar 1996).

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Systemic finding 3 essentially blames inefficiencies in funding processes—involving both Congress and the Intelligence Community—coupled with a multiplicity of appropriation requirements and priorities in hindering an effective antiterrorism policy in the United States before 9/11.86 As explained in cleaned-up-for-national-security language supporting this systemic finding: “throughout the Joint Inquiry, numerous officials . . . testified that the greatest constraint in their effort against al-Qa’ida was the availability of too few resources, compounded by too many requirements and priorities.”87 Systemic finding 6 focuses on the lack of resources in translating foreign language terrorist information.88 The JIR discussion on this point simply observes: The language problem has been one of the Intelligence Community’s perennial shortfalls. Prior to September 11, the shortages of language specialists who would be qualified to process large amounts of foreign language data in general, and Arabic in particular, was one of the most serious issues limiting the Intelligence Community’s ability to analyze, discern, and report on terrorist activities in a timely fashion.89 F. The Dueling Banjoes Problem The 1973 film, Deliverance, introduced the “dueling banjoes”

86. JOINT INQUIRY REPORT, supra note 7, at xvi. Systemic finding 3 states: Between the end of the Cold War and September 11, 2001, overall Intelligence Community funding fell or remained even in constant dollars, while funding for the Community’s counterterrorism efforts increased considerably. Despite these increases, the accumulation of intelligence priorities, a burdensome requirement process, the overall decline in Intelligence Community funding, and reliance on supplemental appropriations made it difficult to allocate Community resources effectively against an evolving terrorist threat. Inefficiencies in the resource and requirements process were compounded by problems in Intelligence Community budgeting practices and procedures. Id. 87. Id. at 46 (brackets omitted). 88. Id. at xvi. 89. Id. at 70.

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scene and subsequent hit song featuring two banjo players trying to out perform and compete with one another.90 While this analogy to the American Intelligence Community and military is imperfect (in the film a certain synergy developed from the competition while the pre-9/11 era American governmental actions were discordant), the analogy is of use in depicting the degree of competitiveness between segments of the federal government in fighting terrorism. Two systemic findings in the Joint Inquiry Report deal with “dueling banjoes” issues: systemic findings 7 and 14. Systemic finding 7 highlights the friction between three key government intelligence agencies: the FBI, the CIA and the NSA.91 One type of ongoing conflict was between the NSA and the FBI over which agency should collect potentially terroristic communications between individuals within the United States. This created what the JIR calls a “gap . . . between the level of coverage of communications between the United States and foreign countries that was technically and legally available to the Intelligence Community and the actual use of that surveillance capability.”92 Another type of perennial friction was between the NSA and the CIA over “which agency was in charge of developing and using…technology when human intelligence and signals intelligence targets overlapped.”93 Specifically, the “CIA perceived NSA as wanting to control technology deployment and development, while NSA was concerned that CIA was conducting NSA-type operations.”94

90. ERIC WEISSBERG & STEVE MANDEL, Dueling Banjos, on THE ORIGINAL SOUNDTRACK: DELIVERANCE (Warner Brothers 1973). 91. JOINT INQUIRY REPORT, supra note 7, at xvii. Systemic finding 7, in sanitized language, provides: Prior to September 11, the Intelligence Community’s ability to produce significant and timely signals intelligence on counterterrorism was limited by NSA’s failure to address modern communications technology aggressively, continuing conflict between Intelligence Community agencies, NSA’s cautious approach to any collection of intelligence relating to activities in the United States, and insufficient collaboration between NSA and FBI regarding the potential for terrorist attacks within the United States. Id. (brackets omitted). 92. Id. at 74-75 (brackets omitted). 93. Id. at 75 (brackets omitted). 94. Id. (brackets omitted).

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Systemic finding 14 addresses the distrust and tension between the American military and the CIA in failing to better coordinate operations against Al Qaeda before September 11.95 From the CIA’s perspective, “the U.S. military often levied so many requirements for highly detailed, actionable intelligence prior to conducting an operation—far beyond what the Intelligence Community was ever likely to obtain—that the U.S. military units were effectively precluded from conducting operations against Bin Ladin’s organization” in south central Asia prior to September 11.96 A former Chairman of the Joint Chiefs of Staff, however, believed that it was not the military’s key mission to go after Bin Ladin; rather, he thought “that the CIA and FBI should have the lead roles in countering terrorism, and that military tools should be viewed as an extension and supplement to the leading roles played by the CIA and FBI.”97 Moreover, the former Chairman was of the view that “actionable intelligence” was too weak to outweigh the risks of military operations that would attempt to “swoop” and pursue terrorists in an undeclared war in another country.98 Despite these conflicting positions from top government officials, the JIR indicates that some cooperation between the CIA and the military directed at Bin Ladin did ensue prior to 9/11.99 95. See id. at xviii. Systemic finding 14, edited for reasons of national security, states: Senior U.S. military officials were reluctant to use U.S. military assets to conduct offensive counter-terrorism efforts in Afghanistan, or to support or participate in CIA operations directed against alQa’ida prior to September 11. At least part of this reluctance was driven by the military’s view that the Intelligence Community was unable to provide the intelligence needed to support military operations. Although the U.S. military did participate in [ —— ] counterterrorism efforts to counter Usama Bin Ladin’s terrorist network prior to September 11, 2001, most of military’s focus was on force protection. Id. (brackets omitted). 96. JOINT INQUIRY REPORT, supra note 7, at 107. 97. Id. at 106. 98. Id. 99. These included cruise missile attacks against Bin Ladin on August 20, 1998, “following the bombings of two U.S. embassies in East Africa,” id. at 108; positioning of U.S. naval vessels in the North Arabian Sea between 1999 and 2001 “to launch additional cruise missile strikes at Bin Ladin in the event the Intelligence Community was able to obtain precise information on

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G. The Through the Glass Darkly Problem According to scripture, some things we see “face to face” and completely; other things we see “through a glass, darkly” and know only in part.100 In other words, it is difficult to see through a turgid medium—even under the best of circumstances. Systemic finding 12 of the Joint Inquiry Report concentrates on the Through the Glass Darkly Problem in stating: During the summer of 2001, when the Intelligence Community was bracing for an imminent al-Qa’ida attack, difficulties with FBI applications for Foreign Intelligence Surveillance Act (FISA) surveillance and the FISA process led to a diminished level of coverage of suspected al-Qa’ida operatives in the United States. The effect of these difficulties was compounded by the perception that spread among FBI personnel at Headquarters and the field offices that the FISA process was lengthy and fraught with peril.101 This turgidness was one of law and the perception of law. Judicial interpretations of the Foreign Intelligence Surveillance Act (FISA) supposedly led to a chilling effect on FBI agents who stopped applying for electronic surveillance orders directed at Al Qaeda suspects.102 H. The Good Cop/Bad Cop Problem The “good cop/bad cop” paradigm is useful in describing scenarios where, on the one hand, rules and processes are scrupulously observed, and, on the other hand, these rules and processes are ruthlessly ignored.103 Systemic finding 18 of the his whereabouts in Afghanistan,” id.; and military assistance “in the development of the Predator unmanned aerial vehicle as a second source of intelligence on Usama Bin Ladin’s precise whereabouts in Afghanistan.” Id. 100. 1 Corinthians 13:12 states: “For now we see through a glass, darkly; but then face-to-face; now I know, in part, then shall I know even as also I am known.” 101. JOINT INQUIRY REPORT, supra note 7, at xvii. 102. Id. at 96-97. 103. My sense of using the term “good cop, bad cop” differs a bit from its typical use as “a psychological tactic, often used by police for interrogation.” Thus: Two ‘cops’ alternate their interviews. The ‘Bad Cop’ behaves

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Joint Inquiry Report can be understood as presenting a good cop/bad cop dichotomy. It states: Between 1996 and September 2001, the counterterrorism strategy adopted by the U.S. Government did not succeed in eliminating Afghanistan as a sanctuary and training ground for Usama Bin Ladin’s terrorist network. A range of instruments were used to counter al-Qa’ida, with law enforcement often emerging as a leading tool because other means were deemed not to be feasible or failed to produce results. While generating numerous successful prosecutions, law enforcement efforts were not adequate by themselves to target or eliminate Bin Ladin’s sanctuary. The United States persisted in observing the rule of law and accepted norms of international behavior, but Bin Ladin and al-Qa’ida recognized no rules and thrived in the safe haven provided by Afghanistan.104 The JIR expounds on this finding by pointing out the incredible naiveté, at best, or recklessness, at worst, of the executive branch of the United States government during the period between 1996 and 9/11. According to the report’s discussion, “[s]ome CIA analysts and operators . . . recognized as early as 1997 or 1998 that, as long as the Taliban continued to grant Bin Ladin’s terrorist organization sanctuary in Afghanistan, it would continue to train a large cadre of Islamic extremists and generate numerous terrorist operations.”105 Yet there was no systematic executive branch effort to use all available means to root out and disable Bin Ladin. As noted in the JIR: “Despite the Intelligence Community’s growing recognition that Afghanistan was churning out thousands of radicals, the U.S. government did not integrate all the instruments of national power and policy—

negatively toward the subject, making blatant accusations, derogatory comments, threats, and in general raising the subject’s antipathy. This sets the stage for the ‘Good Cop’ to deceptively act supportive, understanding, defensive, and in general show sympathy for the subject, which may make the subject cooperative towards the latter. Wikipedia, http://en.wikipedia.org/wiki/Good_cop/bad_cop (last visited Oct. 26, 2005). 104. JOINT INQUIRY REPORT, supra note 7, at xviii-xix (emphasis added). 105. Id. at 120.

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diplomatic, intelligence, economic, and military—to address this Moreover, the analysis goes on to state that problem.”106 “[p]ermitting the sanctuary in Afghanistan to exist for as long as it did allowed Bin Ladin’s key operatives to meet, plan operations, train recruits, identify particularly capable recruits or those with specialized skills, and ensure that al-Qa’ida’s masterminds remained beyond the reach of international justice.”107 The JIR’s most incisive support for its “good cop/bad cop” systemic finding culminates in the following discussion: The reliance on law enforcement when individuals can operate from a hostile country such as the Taliban’s Afghanistan appears particularly ineffective, as the masterminds are often beyond the reach of justice. One FBI agent, in a Joint [I]nquiry interview, scorned the idea of using the [FBI] to take the lead in countering al-Qa’ida. He noted that the FBI can only arrest and support prosecution and cannot shut down training camps in hostile countries. He added that, “it is like telling the FBI after Pearl Harbor, go to Tokyo and arrest the Emperor.” In his opinion, a military solution was necessary because, “the Southern District of New York doesn’t have any cruise missiles.”108 I. The Catch-22 Problem This “Catch-22” Problem, of course, is inspired by Joseph Heller’s famous post-World War II novel109 which describes an American military rule allowing airmen to contend that they were mentally unfit, and thereby unable to fly more missions, with a cognate rule that such a claim conclusively indicated that a complaining airman was not crazy and would, therefore, have to fly more missions.110 As I use this phrase, it seeks to convey the 106. Id. at 121 (brackets omitted). Tellingly, there is a bracketed and deleted two and a half sentences set forth in the JIR after the quoted sentence in the text—presumably a detailed assessment of specific executive branch failings to support the topic sentence of the paragraph—excised by national security censors. Id. 107. Id. 108. Id. at 123 (brackets omitted in last two sentences). 109. See JOSEPH HELLER, CATCH-22 45-46 (1961). 110. See id.

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absurdity of having the United States Congress, seeking to publicly assess and critique the executive branch’s intelligence failures in the years leading up to September 11, 2001, hamstrung by national security censors in the executive branch so that certain intelligence failures are unknowable by virtue of their deletion in the Joint Inquiry Report. The Catch-22 Problem is most prominently portrayed in JIR systemic finding 13, which consists of ten lines of bracketed and deleted text; not one word remains in the Joint Inquiry Report of systemic finding 13!111 We are given tantalizing hints of the content of systemic finding 13 in the discussion portion of the report. First, the JIR, in sanitized prose, indicates that “[d]uring his tenure, President Clinton signed documents authorizing CIA covert action against Osama Bin Ladin and his principal lieutenants.”112 This analysis is followed by twenty lines of deleted text (including two bulleted items amid this text). What are we to make of this? Like an archaeologist who finds a shard of pottery at an excavation site, we have little to go on other than the seeming relevance of presidentially-authorized CIA covert action. Second, we get another clue in the sanitized text which follows these deletions: Former National Security Advisor Sandy Berger testified to the Joint Inquiry . . . that, from the time of the East Africa U.S. Embassy bombings in 1998, the U.S. Government was: . . . embarked on an [sic] very intense effort to get Bin Ladin, to get his lieutenants, thorough overt and covert means . . . . We were involved—at that point, our intense focus was to get Bin Ladin, to get his key lieutenants. The President conferred a number of authorities on the Intelligence Community for that purpose [sic]. Senator Shelby: By “get him,” that means kill him if you had to, capture or kill him? Mr. Berger: I don’t know what I can say in this hearing, but capture and kill . . . . There was no question that the cruise missiles were not trying to capture him. They were not law 111. 112.

See JOINT INQUIRY REPORT, supra note 7, at xvii-xviii. Id. at 98 (brackets omitted).

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enforcement techniques . . . .”113 Aha! If we were archeologists that clue might be likened to finding the rest of the pottery such that we can now tell that the original shard came from a container which held precious potions. Systemic finding 13 must deal (we would surmise) with the CIA’s covert attempts to kill Bin Ladin and his henchmen! A third clue to the probable substance of the JIR systemic finding 13 is an unsanitized quote: “As former National Security Advisor Berger noted in his Joint Inquiry interview, ‘we do not have a rogue CIA.’”114 A “rogue” CIA? Does this mean that Congress was onto some misbehavior of CIA operatives in trying to “get” Bin Ladin? We are quickly disabused of this inference, however, in the fourth scrap of discussion commentary in the JIR that ostensibly supports the phantom systemic finding 13, quoting from the briefing provided by national security official Richard Clarke:115 I think if you look at the 1980s and 1970s, the individuals who held the job of DDO, one after another of them was either fired or indicted or condemned by a Senate committee. I think under those circumstances, if you become Director of Operations, you would want to be a little careful not to launch off on covert operations that will get you personally in trouble and will also hurt the institution. The history of covert operations in the 1950s and 1960s and 1970s was not a happy one, and I think that lesson got over-learned by people . . . . I think that they institutionalized a sense of covert action is risky and is likely to blow up in your face. And the wise guys at the White House who are pushing you to do covert action will be nowhere to be found when the Senate Select Committee on Intelligence calls you up to explain the mess that the covert action became.116 So we suppose—but really cannot be sure—that the JIR

113. Id. at 98-99 (brackets omitted). 114. Id. at 99. 115. As of April of 2004, Richard Clarke’s exposé book on pre-9/11 events was a national bestseller. Cf. RICHARD CLARKE, AGAINST ALL ENEMIES (2004). 116. JOINT INQUIRY REPORT, supra note 7, at 99-100 (emphasis added).

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concluded that the CIA did a lousy job of “getting” Bin Ladin because of a culture that had developed in the American Intelligence Community that disfavored and discouraged covert operations. The Catch-22 Problem is also apparent in the sketchy, sanitized related finding 20,117 and the breathtaking twenty-seven pages of backup discussion that is redacted and deleted in the Joint Inquiry Report!118 We know by reading a sanitized version of finding 20 at the back of the JIR that it deals with “information suggesting specific sources of foreign support for some of the September 11 hijackers while they were in the United States”119 and information “concerning these potential sources of support.”120 We also know that the JIR complained about the “gap in U.S. intelligence coverage,” and admonished that “[t]he Intelligence Community needs to address this area of concern as aggressively and as quickly as possible.”121 That’s it! Was it secret support from Saudi Arabian sources that is hinted at in the sanitized language of the Joint Inquiry Report?122 IV. THE JIR’S RECOMMENDATIONS

As a sign of the haste (and perhaps sloppiness) with which the Joint Inquiry Report was put together, nineteen specific recommendations were “inadvertently” left out of the JIR when they should have been included following the findings and

117. See id. at xix. The language of finding 20 in the summary findings simply states: “Located in Part Four entitled “Finding, Discussion and Narrative Regarding Certain Sensitive National Security Matters.” Id. A sanitized, expanded version of finding 20 is found buried at the end of the report. Id. at 395. 118. See id. at 296-422. Isolated, unhelpful words and phrases are sprinkled throughout these pages. See, e.g., id. at 406 (“The Joint Inquiry also found”), 413 (“In testimony before the Joint Inquiry”), 416 (“Finally”). Why did Congress bother to insert these inane phrases amid a sea of deleted pages? 119. Id. at 395 (brackets omitted). 120. Id. (brackets omitted). 121. JOINT INQUIRY REPORT, supra note 7, at 395 (brackets omitted). 122. See generally LANCE, supra note 69. Cf. BOB GRAHAM, INTELLIGENCE MATTERS: THE CIA, THE FBI, SAUDI ARABIA, AND THE FAILURE OF AMERICA’S WAR ON TERROR 168-69, 202, 216, 225, 229 (2004) (arguing financial support of Saudi Arabia for terrorists).

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conclusions portion of the congressional document.123 A cynic would be tempted to conclude that Congress had become so accustomed to having scores of pages of the JIR deleted by executive branch national security censors that they thought it would be a good idea to omit the Congressional recommendations as well. The congressional recommendations contained in the “errata print” addendum to the Joint Inquiry Report can be usefully divided into three overarching categories: (A) suggested statutory changes in national security laws, legislative budgetary changes, and the like; (B) requested reports from executive branch agencies on national security topics; and (C) suggested executive branch actions on national security. Some numbered recommendations in the JIR errata print contain more than one category of suggested governmental changes; therefore, I will not bother to reference recommendations by number, but will simply cite the relevant pages of the JIR errata print. A. Suggested Statutory or Budgetary Changes in National Security Laws The first and most prominent recommendation for statutory or budgetary changes in national security laws is that Congress should “amend the National Security Act of 1947 to create and sufficiently staff a statutory Director of National Intelligence who shall be the President’s principal advisor on intelligence,”124 with the Director—a “Cabinet level position”125—“hav[ing] the full range of management, budgetary and personnel responsibilities needed to make the entire U.S. Intelligence Community operate as a coherent whole.”126 As part of the JIR’s recommendation, the Director of National Intelligence would have the legal authority, presumably set by federal statute, for the: (1) “establishment and 123. JOINT INQUIRY ERRATA PRINT, supra note 26, at 1. Sloppiness is further apparent in the ERRATA print’s footnoted reference to a “[l]ist of previous commissions that addressed intelligence organizational issues, 1990-present” and its omission of these commissions from both the original JIR and the ERRATA print. Perhaps, the footnote is a sloppy reference to the “Appendix-Evolution of the Terrorist Threat and the U.N. Response, 19832001.” JOINT INQUIRY REPORT, supra note 7, at App. 5-49. 124. JOINT INQUIRY ERRATA PRINT, supra note 26, at 2 (footnote omitted). 125. Id. at 3. 126. Id. at 2.

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enforcement of consistent priorities for the collection, analysis, and dissemination of intelligence throughout the Intelligence Community;”127 (2) “setting of policy and the ability to move personnel between elements of the Intelligence Community;”128 (3) “review, approval, modification, and primary management and oversight of the execution of Intelligence Community budgets”;129 (4) “review, approval, modification, and primary management and oversight of the execution of Intelligence Community personnel and resource allocations”;130 (5) “review, approval, modification, and primary management and oversight of the execution of Intelligence Community research and development efforts”;131 (6) “review, approval, and coordination of relationships between the Intelligence Community agencies and foreign intelligence and law enforcement services”;132 and (7) “exercise of statutory authority to insure that Intelligence Community agencies and components fully comply with community-wide policy, management, spending, The JIR, and administrative guidance and priorities.”133 moreover, as part of the proposed establishment of this new supercoordinating management czardom, suggests that “[t]o insure focused and consistent Intelligence Community leadership, Congress should require that no person may simultaneously serve as both the Director of National Intelligence and the Director of the Central Intelligence Agency, or as the director of any other specific intelligence agency.”134 A second important proposal for statutory or budgetary changes suggested by the Joint Inquiry Report concerns a new national security institution. According to the JIR: “Congress and the Administration should ensure the full development within the Department of Homeland Security of an effective all-source terrorism information fusion center”135 (IFC), with the goal that this novel organizational innovation “will dramatically improve the focus and quality of counterterrorism analysis and facilitate 127. 128. 129. 130. 131. 132. 133. 134. 135.

Id. Id. JOINT INQUIRY ERRATA PRINT, supra note 26, at 2. Id. at 3. Id. Id. Id. JOINT INQUIRY ERRATA PRINT, supra note 26, at 3. Id. at 5 (emphasis added).

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the timely dissemination of relevant intelligence information, both within and beyond the boundaries of the Intelligence Despite its highfalutin name, the essential Community.”136 purpose of the “all-source terrorism information fusion center” appears to be the creation of a centralized intelligence agency. (Why, then, do we need both a CIA and an IFC?)137 The Joint Inquiry Report offers a third suggested statutory or budgetary action in the nature of oversight hearings. The JIR states in this regard: The House and Senate Intelligence and Judiciary Committees should continue to examine the Foreign Intelligence Surveillance Act and its implementation . . . particularly with respect to changes made as a result of 136. Id. 137. According to the JIR, the “information fusion center” (IFC) should be given legal authority and resources needed to: • have full and timely access to all counterterrorism-related intelligence information, including “raw” supporting data as needed; • have the ability to participate fully in the existing requirements process for tasking the Intelligence Community to gather information on foreign individuals, entities and threats; • integrate such information in order to identify and assess the nature and scope of terrorist threats to the United States in light of actual and potential vulnerabilities; • implement and fully utilize data mining and other advanced analytical tools, consistent with applicable law; • retain a permanent staff of experienced and highly skilled analysts, supplemented on a regular basis by personnel on “joint tours” from the various Intelligence Community agencies; • institute a reporting mechanism that enables analysts at all the intelligence and law enforcement agencies to post lead information for use by analysts at other agencies without waiting for dissemination of a formal report; • maintain excellence and creativity in staff analytic skills through regular use of analysis and language training programs; and • establish and sustain effective channels for the exchange of counterterrorism-related information with federal agencies outside the Intelligence Community as well as with state and local authorities. Id. at 5-6.

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the USA PATRIOT Act and the subsequent decision of the United States Foreign Intelligence Court of Review, to determine whether its provisions adequately address present and emerging terrorist threats to the United States. Legislation should be proposed by those Committees to remedy any deficiencies identified as a result of that review.138 As a fourth statutory or budgetary suggestion following up on other proposals for centralization and coordination,139 the JIR suggests that “Congress should consider enacting legislation, modeled on the Goldwater-Nichols Act of 1986, to instill the concept of ‘jointness’ throughout the Intelligence Community.”140 As revealed in the supporting language of this recommendation, the JIR appears to be simply calling for more, good-old-fashioned American teamwork: By emphasizing such things as joint education, a joint career speciality, increased authority for regional commanders, and joint exercises [the Goldwater-Nichols Act of 1986] greatly enhanced the joint warfighting capabilities of the individual military services. Legislation to instill similar concepts throughout the Intelligence Community could help improve management of Community resources and priorities and insure a far more effective “team” effort by all the intelligence agencies.141

138. Id. at 9-10. 139. See supra notes 124-38 and accompanying text. 140. JOINT INQUIRY ERRATA PRINT, supra note 26, at 11. 141. Id. The JIR recommendation continues by stating: The Director of National Intelligence should require more extensive use of “joint tours” for intelligence and appropriate law enforcement personnel to broaden their experience and help bridge existing organizational and cultural divides through service in other agencies. These joint tours should include not only service at Intelligence Community agencies, but also service in those agencies that are users or consumers of intelligence products. Serious incentives for joint services should be established throughout the Intelligence Community and personnel should be rewarded for joint service with career advancement credit at individual agencies. The Director of National Intelligence should also require Intelligence Community agencies to participate in joint exercises[.]

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Fifth, the Joint Inquiry Report recommends expansion and improvement of “existing educational grant programs focused on intelligence-related fields, similar to military scholarship programs” as a statutory and budgetary measure.142 As a sixth statutory/budgetary suggestion, the JIR recommends that “Congress should . . . review the statutes, policies and procedures that govern the national security classification of intelligence information and its protection from unauthorized disclosure.”143 Interestingly, as part of this proposal, the JIR suggests that “[a]mong other matters, Congress should consider the degree to which excessive classification has been used in the past and the extent to which the emerging threat environment has greatly increased the need for real-time sharing of sensitive information.”144 What does “real-time sharing” mean? The most plausible interpretation appears to be the sharing of raw intelligence data as soon as it is reasonably made available. Another interpretation might be access to a web-based data source where new intelligence information is regularly updated and revised. Finally, the Joint Inquiry Report indicates, as a seventh statutory or budgetary modification to existing national intelligence and security laws: “as part of the confirmation process for Intelligence Community officials, Congress should require from those officials an affirmative commitment to the implementation and use of strong accountability mechanisms throughout the Intelligence Community.”145 The language “strong accountability mechanisms” reminds one of Orwellian-speak in his book 1984.146 A draconian image that comes to mind is the kind of “accountability mechanism” practiced by Ian Fleming’s character, Goldfinger, when one of his agents has failed him—immediate A less horrific “accountability electrocution and disposal.147 mechanism” might simply include being fired from one’s job. Nonetheless, as usual, the JIR utilizes congressional jargon to

Id. at 11-12. 142. Id. at 12. 143. Id. at 14. 144. Id. 145. JOINT INQUIRY ERRATA PRINT, supra note 26, at 15. 146. GEORGE ORWELL, 1984 (Signet 1961) (1949). 147. See generally Ian Fleming’s classic book, GOLDFINGER (1959).

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make its points. B. Requested Reports from Executive Branch Agencies Numerous requests for reports are interwoven throughout the fabric of the Joint Inquiry Report’s recommendations. First, the JIR wants the president to “take action to ensure that clear, consistent, and current priorities are established and enforced throughout the Intelligence Community,” and to make certain that “[o]nce established, these priorities” are “reviewed and updated” annually “to ensure that the allocation of Intelligence Community resources reflect and effectively address the continually evolving threat environment.”148 Under separation of powers principles, of course, Congress cannot command the president to undertake his independent constitutional powers as commander-in-chief149 or as leader of the nation’s conduct in foreign affairs,150 but the JIR apparently contemplates that Congress could obtain access to the aforementioned intelligence priorities information through Congress’ power of the purse:151 “the establishment of Intelligence Community priorities…should be reported to the House and Senate Intelligence Committees [by the President] on an annual basis.”152 Second, the Joint Inquiry Report recommends a raft of reports from “the new Director of National Intelligence, the Attorney General, and the Secretary of the Department of Homeland Security,” to be issued to both Congress and the President “on a date certain,” and containing four specific matters: (1) an account of “the FBI’s progress since September 11, 2001 in implementing the reforms required to conduct an effective domestic intelligence program,” including the “adequacy” of “domestic intelligence authorities” regarding the pursui[t] [of] counterterrorism at home and ensuring the protection of privacy and other rights guaranteed under the Constitution”;153 (2) an analysis of “the 148. JOINT INQUIRY ERRATA PRINT, supra note 26, at 3-4. 149. See U.S. CONST. art. II, § 2, cl. 1. 150. See id. at art. II, § 2, cls. 4-5. 151. See id. at art. I, § 9, cl. 7. 152. JOINT INQUIRY ERRATA PRINT, supra note 26, at 4. 153. Id. at 8. The JIR goes on to request, by way of a prominent example, executive branch proposals on “whether the range of persons subject to searches and surveillances authorized under the Foreign Intelligence

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experience of other democratic nations in organizing the conduct of domestic intelligence”;154 (3) an appraisal of “the specific manner in which a new domestic intelligence service could be established in the United States, recognizing the need to enhance national security while fully protecting civil liberties”;155 and the somewhat repetitive request for a set of “recommendations on how to best fulfill the nation’s need for an effective domestic intelligence capability, including necessary legislation.”156 Third, the Joint Inquiry Report turns its attention to the NSA, presently lodged within the Department of Defense (DOD), seeking a “detailed plan,” by June 30, 2003, to the House and Senate Intelligence Committees, as well as to certain executive branch officials,157 which (1) describes solutions for the technological changes for signals intelligence; (2) requires a review, on a quarterly basis, of the goals, products to be delivered, funding levels and schedules for every technology development program; (3) ensures . . . accounting for program expenditures; (4) makes NSA a full collaborating partner with the CIA and the FBI in the war on terrorism, including fully integrating the collection and analytic capabilities of the NSA, CIA, and the FBI; and (5) makes recommendations for legislation needed to facilitate these goals.158 Fourth, the Joint Inquiry Report requests the State Department, “in consultation with the Department of Justice,” to report to both “the President and the Congress by June 30, 2003 Surveillance Act (FISA) should be expanded.” Id. 154. Id. Comparative law perspectives are usually helpful in pondering the content and structure of legislation. But query: have the domestic intelligence problems of the United States—the world’s sole “super-power” with the enmity of many groups from around the world—become sui generis? Perhaps the experience of Israel in conducting its domestic intelligence would be most apropos to the domestic intelligence program needed for the United States in the post 9/11 era. 155. Id. at 9. 156. Id. 157. JOINT INQUIRY ERRATA PRINT, supra note 26, at 10. 158. Id. The language used by the JIR is ambiguous and open to varying interpretations. As a final shot over the bow of NSA, the JIR in conjunction with the forthcoming requested report from NSA indicates as follows: “In evaluating the plan, the Committees should also consider issues pertaining to whether civilians should be appointed to the position of Director of National Security Agency and whether the term of service for the position should be longer than it has been in the recent past.” Id.

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on the extent to which revisions in bilateral and multilateral agreements, including extradition and mutual assistance treaties, would strengthen U.S. counterterrorism efforts.”159 Fifth, acknowledging the political reality of an independent investigative entity outside of the institutional structure of Congress brought about by the demands of relatives of 9/11 victims,160 the JIR requests that this entity, “the National Commission on Terrorist Attacks Upon the United States,” undertake “and make recommendations concerning how Congress may improve its oversight of the Intelligence Community,”161 including the following five policy and legal issues: (1) “changes in the budgetary process”; (2) “changes in the rules regarding membership on the [intelligence] oversight committees”; (3) “whether oversight responsibility should be vested in a joint House-Senate Committee or, as currently exists, in separate Committees in each house”; (4) “the extent to which classification decisions impair congressional oversight”; and (5) “how Congressional oversight can best contribute to the continuing need of the Intelligence Community to evolve and adapt to changes in the subject matter of intelligence and the needs of

159. Id. at 13. Interestingly, the JIR wants the State Department review to “address the degree to which current categories of extraditable offenses should be expanded to cover offenses, such as visa and immigration fraud, which may be particularly useful against terrorists and those who support them.” Id. 160. See JOHN W. DEAN, WORSE THAN WATERGATE 113 (2004) (“Because of the lack of White House cooperation with the joint inquiry, the families of 9/11 victims began lobbying Congress to create an independent commission, with subpoena power, to investigate 9/11, even before the congressional effort had been completed”). Of course, the Joint Inquiry, acting through the respective houses of Congress, could have subpoenaed all pertinent documents that it wanted from the executive branch. See LEGISLATIVE PROCESS 216-30 (Abner J. Mikva & Eric Lane eds., 2d ed. 2002) (discussing compulsory process before congressional committees). 161. JOINT INQUIRY ERRATA PRINT, supra note 26, at 13. In July of 2004 the commission issued its report. See supra note 8 and accompanying text. This report “concluded in its unanimous final report . . . that the attacks were a shock but they should not have come as a surprise.” Philip Shenon, We Are Not Safe: Commission Warns of Another Catastrophe Under Status Quo, N.Y. TIMES, July 23, 2004, at A1 (internal quotation marks omitted). For an account of the formation of the Commission because of the perceived lack of success of the Joint Inquiry by Congress, see CONGRESSIONAL QUARTERLY INC., 2002 ALMANAC 7-18-7-19 (2003).

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policymakers.”162 Sixth, concerned about what it perceived as the aggressive use of classified information by the executive branch during the course of its investigation—what Senator John McCain described as the administration having “slow-walked and stonewalled” the congressional inquiry163—the JIR makes the following remarkable request: the Director of National Intelligence, in consultation with the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, should review and report to the House and Senate Intelligence Committees on proposals for a new and more realistic approach to the processes and structures that have governed the designation of sensitive and classified information. The report should include proposals to protect against the use of the classification process as a shield to protect agency self-interest.164 Seventh, alarmed that the Intelligence Community had shrugged off responsibility for the terrorist attacks of September 11, the Joint Inquiry Report sought a report from the CIA director “to the House and Senate Intelligence Committees no later than June 30, 2003” regarding “the steps taken to implement a system of accountability throughout the Intelligence Community, to include processes for identifying poor performance and affixing responsibility for it, and for recognizing and rewarding excellence in performance.”165 As an eighth, and final, mandate for executive branch reporting back to Congress, the JIR focused on the President: The Administration should review and report to the House and Senate Intelligence Committees by June 30, 2003 regarding what progress has been made in reducing the inappropriate and obsolete barriers among intelligence and law enforcement agencies engaged in counterterrorism, what remains to be done to reduce those barriers, and what legislative actions may be 162. 163. 164. 165.

JOINT INQUIRY ERRATA PRINT, supra note 26, at 14. DEAN, supra note 160. JOINT INQUIRY ERRATA PRINT, supra note 26, at 15 (emphasis added). Id. at 15.

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advisable in that regard. In particular, this report should address what steps are being taken to insure that perceptions within the Intelligence Community about the scope and limits of current law and policy with respect to restrictions on collection and information sharing are, in fact, accurate and well-founded.166 C. Mandates for Executive Action The final category of congressional recommendations in the Joint Inquiry Report concerns suggestions (or demands) on executive branch agencies. Ten calls for further executive action can be discerned in the JIR: • National Security Council-led and presidentially-approved “U.S. government-wide strategy for combating terrorism, both at home and abroad, including the growing terrorism threat posed by the proliferation of weapons of mass destruction and associated technologies” with components of the strategy to include “foreign policy, economic, military, intelligence, and law enforcement elements that are critical to a comprehensive blueprint for success in the war against terrorism”;167 166. Id. at 16. In what may be called an omnibus reporting mandate, the following language appears at the close of the JIR’S recommendations: “The Intelligence Community should fully inform the House and Senate Intelligence Committees of significant developments [regarding evidence of state sponsored terrorism], through regular reports and additional communications” with the expectation that “the [congressional] Committees should, in turn, exercise vigorous and continuing oversight of the [Intelligence] Community’s work in this critically important area.” Id. at 17. 167. Id. at 4. The JIR goes on to specify how Congress would like this national counterterrorism strategy to look including discussion of the following: • develop[ing] human sources to penetrate terrorist organizations and networks both overseas and within the United States; • fully utilize[ing] existing and future technologies to better exploit terrorist communications; to improve and expand the use of data mining and other cutting edge analytical tools; and to develop a multi-level security capability to facilitate the timely and complete sharing of relevant intelligence information both within the Intelligence Community and with other appropriate federal, state, and local authorities;

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• The creation of a “National Intelligence Officer for Terrorism” within the “National Intelligence Council” who would be “a highly qualified individual appointed to prepare intelligence estimates on terrorism for the use of Congress” and executive branch policymakers”;168 • The implementation, by the FBI, of multiple measures to improve the Bureau’s conducting of domestic intelligence by: better prioritization and enforcement of field office compliance, developing independent career tracks for counterterrorism, better training of strategic analysts, establishing “a strong reports officer cadre at the FBI Headquarters” to ensure better dissemination of agents to analysts of key counterterrorism information, agent training for better use of strategic analysis, recruitment of agents with needed linguistic skills, increased penetration of terrorist organizations operating within the United States through “all available means of collection,” improved “national security law training” by FBI personnel, improved exchange of counterterrorism information between the FBI and other federal, state and local agencies, and remediation of “the FBI’s persistent and incapacitating information technology problems”;169

•

• • •

enhance[ing] the depth and quality of domestic intelligence collection and analysis by, for example, modernizing current intelligence reporting formats through the use of existing information technology to emphasize the existence and the significance of links between new and previously acquired information; maximize[ing] the effective use of covert action in counterterrorist efforts; develop[ing] programs to deal with financial support for international terrorism; and facilitate[ing] the ability of CIA paramilitary units and military special operations forces to conduct joint operations against terrorist targets.

Id. at 4-5. 168. Id. at 5. 169. JOINT INQUIRY ERRATA PRINT, supra note 26, at 7-8.

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• The accomplishment by the Attorney General and the Director of the FBI of expanded and improved intelligence data obtained by an aggressive use of the Foreign Intelligence Surveillance Act;170 • Transformation by the Intelligence Community led by the Director of National Intelligence, of the “recruitment and development of a workforce with the intelligence skills and expertise needed for success in counterterrorist efforts.”171 Greatly enhanced training programs should be launched and carried out in the following areas: “information sharing among law enforcement and intelligence personnel; language capabilities; the use of the Foreign Intelligence Surveillance Act; and watchlisting”;172 • Review and improvement under the direction of the President, of the budgeting process of implementing American counterterrorism policy including “consideration of a separate classified Intelligence Community budget,” flexible appropriations “subject to congressional oversight, to enable the Intelligence Community to rapidly respond to altered or unanticipated needs”; and contracting for a “rigorous cost-benefit analysis of the resources spent on intelligence”;173 • Consideration by the President of possible amendments to “Executive Orders, policies and procedures that govern the 170. See id. at 9. 171. Id. at 10. 172. Id. at 11. One of the more intriguing specific congressional recommendations is a “Civilian Linguist Reserve Corps” outside of the Intelligence Community “whose abilities are relevant to the needs of counterterrorism[.]” Id. Moreover, ever “politically correct” in its aspirations, the JIR directs that: the Intelligence Community should enhance recruitment of a more ethnically and culturally diverse workforce and devise a strategy to capitalize upon the unique culture and linguistic capabilities of firstgeneration Americans, a strategy designed to utilize their skills to the greatest practical effect, while recognizing the potential counterintelligence challenges such hiring decisions might pose. Id. at 12. 173. Id. at 12-13.

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national security classification of intelligence information” with an eye toward “expand[ing] access to relevant information for federal agencies outside the Intelligence Community, for state and local authorities, which are critical to the fight against terrorism, and for the American public,” while also reassessing existing presidential policy “to protect against the unauthorized disclosure of classified intelligence information”;174 • Reviews by the “Inspectors General at the Central Intelligence Agency, the Department of Defense, the Department of Justice, and the Department of State” of the factual findings of the JIR, coupled with further independent internal reviews, “to determine whether and to what extent personnel at all levels should be held accountable for any omission, commission, or failure to meet professional standards” dealing with “the identification, prevention, or disruption of terrorist attacks, including the events of September 11, 2001”;175 • Development, under direction of the President, of “a national watch list center that will be responsible for integrating all terrorist-related watch list systems,” while “ensuring a consistent and comprehensive flow of terrorist names into the center from all relevant points of collection”;176 • FBI and CIA coordination and “aggressive[e]” investigation of “the possibility that foreign governments are providing support to or are involved in terrorist activity targeting the United States and U.S. interests.”177 V. ADDITIONAL VIEWS OF JOINT INQUIRY MEMBERS OF CONGRESS

A remarkable aspect of the Joint Inquiry Report is the inclusion of some 190 pages of “[a]dditional views.”178 While the 174. 175. 176. 177. 178.

JOINT INQUIRY ERRATA PRINT, supra note 26, at 14. Id. at 15-16. Id. at 16. Id. See JOINT INQUIRY REPORT, supra note 7, following page 435. The

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use of additional views in congressional committee reports is well known,179 their significance is under-theorized. Are they in the nature of judicial dissenting or concurring opinions?180 Are they mere grandstanding? A review of some of the eight separate additional views filed by nine members181 of the Joint Inquiry will touch on these questions. In general, taken as a whole and considered together, these additional views highlight the multiflawed legal process of the Joint Inquiry. A. Senator Richard C. Shelby The most prominent of the additional views of the members of the Joint Inquiry is the filing of Senator Richard C. Shelby (R-AL). The prominence of Shelby’s additional views is premised on two reasons: (1) he is Vice Chairman of the Senate Select Committee on Intelligence,182 and (2) his views are spread out over 135

“additional views” are separately paginated. See id. Citation will be to the separately titled, separately paginated authors’ additional views. See infra notes 185, 204, 206, 222, 225. 179. See, e.g., LEGISLATIVE PROCESS, supra note 160, at 284-85. 180. Cf. Robert F. Blomquist, Dissent, Posner-Style: Judge Richard A. Posner’s First Decade Dissenting Judicial Opinions, 1981-1991—Toward An Aesthetics of Judicial Dissenting Style, 69 MO. L. REV. 73 (2004). See also CASS SUNSTEIN, WHY SOCIETIES NEED DISSENT (2003). 181. The additional views of members are as follows and appear in the following order: • Senator Richard C. Shelby (R-AL) (135 pages) • Representative Michael N. Castle (R-DE) (2 pages) • Senator Mike DeWine (R-OH) (16 pages) • Representative Jane Harman (D-CA) (5 pages) • Senator Jon Kyl (R-AZ) and Sen. Pat Roberts (R-KS) (21 pages) • Senator Carl Levin (D-MN) (3 pages) • Senator Barbara A. Mikulski (D-MD) (3 pages) • Representative Tim Roemer (D-IN) (5 pages) See JOINT INQUIRY REPORT, supra note 7, (separately paginated additional views attached to the JIR). A total of seventeen U.S. Senators and members of the Senate Select Committee on Intelligence were part of the Joint Inquiry. See id. at viii. A total of twenty U.S. Representatives and members of the House Permanent Select Committee on Intelligence were part of the Joint Inquiry. See id. at ix. Therefore, nine out of thirty-seven (or about twentyfour percent) of the Joint Inquiry members filed additional views. 182. See id. at viii.

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pages.183 Moreover, in a recent book, Shelby was quoted as saying this about the difficulty encountered in obtaining information during the Joint Inquiry: “You know, we were told that there would be cooperation in this investigation and I question that,” noting, “I think that most of the information that our staff has been able to get [from the executive branch] has had to be extracted piece by piece.”184 Shelby’s additional views contain several acerbic nuggets. First, drawing a historical parallel between the terrorist attacks on September 11, 2001 and the “devastating surprise attack the United States suffered at Japanese hands at Pearl Harbor on December 7, 1941,” Shelby urges the case for fundamental reform, stating that “too much has happened for us to be able to conclude that the American people and our national security interests can be protected simply by throwing more resources at agencies still fundamentally wedded to the pre-September 11 status quo.”185 Second, speaking of the structure and organization of the American Intelligence Community, Shelby lambasts the Director of Central Intelligence’s “at least partly rhetorical 1998 declaration of ‘war’ against Al Qaeda,” and criticizes “the centrifugal tendencies of bureaucratic politics” within the Intelligence Community with the upshot that the Community “responds too slowly and too disjointedly to shifting threats.”186 In this regard, he urges “organizational flexibility”187 and “a 183. 184. 185.

See supra note 181 and accompanying text. DEAN, supra note 160, at 113 (footnote omitted). SEN. RICHARD C. SHELBY, SEPTEMBER 11 AND THE IMPERATIVE OF REFORM IN THE U.S. INTELLIGENCE COMMUNITY: ADDITIONAL VIEWS OF SENATOR RICHARD C. SHELBY, VICE CHAIRMAN, SENATE SELECT COMMITTEE ON INTELLIGENCE 3 (Dec. 10, 2002) [hereinafter SHELBY]. 186. Id. at 4. In partial support of his reference to centrifugal tendencies, Shelby observed: “The most obvious problem with respect to the IC’s [Intelligence Committee’s] ability to act as a coherent and effective whole is the fact that more than 80 percent of its budgets and personnel resources are controlled by the Department of Defense (DOD).” Id. at 4. 187. Id. at 28. He elaborated on this point by observing: This is what might be called the “meta-lesson” of our current round of “lessons learned” studies of intelligence failures: we must not only learn the lessons of the past but learn how to keep learning lessons as we change and adapt in the future. Adopting uniform personnel standards would help the Community ensure that its personnel and organizational units remain unique and valuable individual resources but they would also become administratively fungible

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continual process of ‘creative destruction’ not unlike competitive corporate approaches used in the private sector.”188 Third, focusing on information-sharing concerns, Shelby goes to considerable lengths in his additional views to critique the Intelligence Community’s failure to “connect the dots” before 9/11;189 to describe the systemic and continual problems of information within the Intelligence Community;190 and to enthusiastically encourage future breakthroughs in innovative techniques of information sharing.191 Highlighting the paramount intelligence sharing failures that he believes the Joint Inquiry’s investigation revealed, Shelby opines at length: The CIA’s chronic failure, before September 11, to share with other agencies the names of known al-Qa’ida terrorists who it knew to be in the country allowed at least two such terrorists the opportunity to live, move, and prepare for the attacks without hindrance from the very federal officials whose job it is to find them. Sadly, the CIA seems to have concluded that the maintenance of its information monopoly was more important tha[n] stopping terrorists from entering or operating within the United States. Nor did the FBI fare much better, for even when notified in the so-called “Phoenix Memo” of the danger of al-Qa’ida flight school training, its agents failed to understand or act upon this information in the broader context of information the FBI already possessed about terrorist efforts to target or use U.S. civil aviation. The CIA watchlisting and FBI Phoenix stories illustrate both the potential of sophisticated information-sharing and good information-empowered analysis and the perils of failing to share information promptly and efficiently between (and within) organizations. They demonstrate the need to ensure that intelligence analysis is conducted on a truly “all-source” basis by experts permitted to assets, capable of being reorganized and redirected efficiently as circumstances demand. Id. 188. 189. 190. 191.

Id. at 29. Id. at 33-46. SHELBY, supra note 185, at 47-51. Id. at 52-70.

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access all relevant information—no matter where in the IC [Intelligence Community] it happens to reside.192 Fourth, Senator Shelby’s additional views raise some useful points about intelligence-law enforcement coordination. “The September 11 story,” as he puts it, “illustrates the tremendous problems of coordination between U.S. law enforcement and intelligence entities that developed out of a long series of misunderstandings, timorous lawyering, and mistaken 193 Even after 9/11 and the passage of the USA assumptions.” PATRIOT Act of 2001,194 which amended the Foreign Intelligence Surveillance Act (FISA),195 Shelby expresses frustrations that “[i]t took over a year . . . for the USA PATRIOT Act changes to penetrate the U.S. Government’s entrenched ‘no coordination’ bureaucratic culture.”196 Furthermore, in Shelby’s view, “[i]t was not until November 2002 that the FISA Court of Review—the never before-used appellate body created by the statute—issued an opinion” overruling the FISA trial court that “the law . . . stands today where Congress intended it to stand” in passing the USA PATRIOT Act in October 2001: “there is no restriction upon coordination between law enforcement and intelligence organs in connection with FISA surveillance or physical searches, and such activity can lawfully be undertaken even if primarily done with prosecutorial intent, provided that a ‘significant’ intelligence purpose remains.”197 Fifth, in strong language of rebuke, Senator Shelby castigates the domestic intelligence failures of the FBI leading up to September 11, 2001, concluding that the FBI’s “organizational and institutional culture is terribly flawed,” and that the FBI “is fundamentally incapable, in its present form, of providing Americans with the security they require against foreign terrorist and intelligence threats.”198

192. Id. at 6-7. 193. Id. at 8. 194. USA PATRIOT Act, Pub. L. 107-56, 115 Stat. 252 (Oct. 26, 2001). 195. 18 U.S.C. § 1801, et seq. (Supp. 2005). 196. SHELBY, supra note 185, at 86. 197. Id. at 89 (footnote omitted). 198. Id. at 10. He went on to contend: In light of the FBI’s dismal recent history of disorganization and institutional incompetence in its national security work, many of us

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Sixth, Shelby’s take on the CIA’s pre-9/11 human intelligence performance is caustic. As he sees it, the CIA “has been too reluctant to develop non-traditional” forms of human-collected intelligence and “has stuck too much and for too long with the comparatively easy work of operating under diplomatic cover from U.S. embassies.”199 Seventh, regarding the topic of covert action, Senator Shelby comments: [G]iven the unpleasant history of covert action scandals that have affected the CIA, one should not be surprised to find that—ironically, perhaps—the covert action infrastructure is a relatively cautious one. Intelligence officers will often, and with good reason, hesitate to take operational risks or to push aggressively to accomplish their missions if they are operating under ambiguous or convoluted legal authorities and always suspect that they may be prosecuted or hauled before a hostile inquiry for any actual or perceived missteps.200 Finally, Shelby offers separate remarks to the Joint Inquiry Report on the subject of accountability, “respectfully disagree[ing]” with the view, offered by some officials, that Congress “should postpone holding anyone accountable within the Intelligence Community until [the] war against al-Qa’ida is completed.”201 As Shelby puts it: “Precisely because we face a grave and ongoing threat, we must begin reforming the [Intelligence] Community

in Congress have begun to consider whether it might better serve the interests of the American people to separate the counterintelligence and counterterrorism functions of the [FBI] into an entirely separate organization—one that would be free of the structural, organizational, and cultural constraints that have greatly handicapped the FBI’s ability to conduct the domestic intelligence work our country depends upon it to perform. Id. at 98-99. 199. Id. at 12. 200. Id. at 129. A significant reason for this covert action timidity, from Shelby’s perspective, was a history, during the Clinton Administration, of legal authorizations contained in presidential Memoranda of Notifications (MONs) “as to what [covert] agents are permitted to do in pursuit of the stated aim—with absolute clarity.” Id. (footnote citing Joint Inquiry testimony of former National Security Advisor Sandy Berger). 201. SHELBY, supra note 185, at 13.

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immediately.”202 Speaking in a voice of agitated dissent, Shelby employs understated outrage in the failure of the Joint Inquiry to assess specific blame for the 9/11 disaster: The metaphor of “war” is instructive, for wise generals do not hesitate to hold their subordinates accountable while the battle still rages, disciplining or cashiering those who fail to do their duty. So also do wise Presidents dispose of their faltering generals under fire. Indeed, failures in wartime are traditionally considered less excusable, and are punished more severely, than failures in times of peace. Nor should we forget that accountability has two sides. It is also a core responsibility of all good leaders to reward those who perform well, and promote them to positions of ever greater responsibility. *** For these reasons, it is disappointing to me that despite the Joint Inquiry’s explicit mandate to “lay a basis for assessing the accountability of institutions and officials of government” and despite its extensive findings documenting recurring and widespread [Intelligence] Community shortcomings in the months and years leading up to September 11, the Joint Inquiry has not seen fit to identify any of the individuals whose decisions left us so unprepared. I urge President Bush to examine the Joint Inquiry’s findings in order to determine the extent to which he has been well served by his “generals” in the Intelligence Community.203 B. Representative Mike Castle Representative Mike Castle (R-DE) filed the functional equivalent of a short concurring opinion to the Joint Inquiry Report, focusing on two issues that he sought to highlight: (1) the need for significant improvement in the performance of the NSA

202. 203.

Id. Id. 13-14.

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in obtaining better signal intelligence concerning global terrorism, and (2) the need for substantial, immediate reform “with respect to the management, coordination and oversight of our Nation’s visa program.”204 Castle’s more telling comments concern the matter of visa reform. Alarmingly, as he explains: th

The majority of the September 11 hijackers were wrongly admitted to the United States—in violation of U.S. immigration laws—as a result of decisions made and errors committed by responsible State Department and Justice Department officers. The fact that many of them entered and operated in true name, further emphasizes the extent to which the current system is broken.205 C. Senator Mike DeWine Senator Mike DeWine (R-OH) crafted his separate remarks in the form of a partial concurring opinion and partial dissent from the Joint Inquiry Report.206 Even on those few points where he seems to be going against the grain of the JIR, DeWine’s dissenting comments are collaborative in nature.207 DeWine makes seven key arguments. First, he asserts that it was vital for the Intelligence Committees of Congress to “improve the quality and quantity of oversight” with regard to executive branch agencies seeking secret authorization pursuant to FISA to conduct domestic intelligence.208 204. REPRESENTATIVE MIKE CASTLE, ADDITIONAL VIEWS OF REPRESENTATIVE MIKE CASTLE (R-DELEWARE) TO BE APPENDED TO THE REPORT OF THE JOINT INQUIRY ON THE SEPTEMBER 11, 2001 TERRORIST ATTACKS ON THE UNITED STATES 1 (Dec. 2002). 205. Id. at 1-2. 206. See SENATOR MIKE DEWINE, ADDITIONAL COMMENTS JOINT INQUIRY STAFF REPORT 1 (Dec. 18, 2002) [hereinafter DEWINE]. 207. Id. at 2. Cf. Blomquist, supra note 180, at 91-92 (discussing the concept of a collaborative versus an oppositional judicial dissenting opinion). 208. DEWINE, supra note 206, at 2. Senator DeWine’s suggestions for additional congressional oversight activities are incisive and perspicacious. He proposes, for example: [T]he Intelligence Committees [of Congress] should hold regularly scheduled hearings to examine the FISA process and receive testimony from senior [executive branch] officials . . . . These hearings should explore the FISA process and provide information as

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Second, in an intriguing proposal, DeWine suggests the need for improving the FISA process by requiring the appointment, by the secret court administering the statute, of “advocates” chosen from a group of “pre-cleared attorneys with prior FISA experience”209 who, while not contacting or informing “the subject of the potential surveillance,” would, instead, “act as officers of the [secret] court, representing the legal position in opposition to the Justice Department’s application for a FISA warrant.”210 Third, Senator DeWine parts company with the JIR’s recommendation to create a separate position of Director of National Intelligence, untethered from the CIA, observing that a number of experts had concluded that this institutional isolation would be “counterproductive.”211 Fourth, he urges the need to emphasize that “the Intelligence Community needs to pay more attention to the collection and analysis of open-source information” derived from available unclassified information— such as a report, written in 1999, by a Library of Congress analyst regarding the risk of Al Qaeda suicide bombers flying airplanes into places like the White House and the Pentagon.212 Fifth, DeWine opines that the “Senate and House Intelligence Committees are asking for too many unnecessary reports” from members of the Intelligence Community.213 Sixth, he offers an innovative potential technique to enhance information-sharing among members of the sprawling and diverse

to how FISA is being implemented. For example, in order to better determine how the Executive Branch is utilizing FISA, the Committee should examine the number of FISA warrants issued during a given period of time and the general subject matter or issues those warrants were meant to address. Furthermore, these hearings should be used to explore a wide range of hypothetical situations—situations based on actual cases that demonstrate to [Congress] . . . how the law would be applied in certain scenarios. This would allow [Congress] to develop a better understanding of how FISA is being implemented in a practical, day-to-day manner and also alert [Congress] to any instances where the [relevant intelligence entities are] departing from Congressional intent. Id. at 3. 209. Id. at 4. 210. Id. at 4 n.2. 211. Id. at 5. 212. Id. at 6. 213. DEWINE, supra note 206, at 6.

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American Intelligence Community.214 According to DeWine: A relatively simple way to address this would be through the use of a technology known as “multi-level security” capability. Basically, the use of multi-level security allows computer users with different levels of security classification to get different levels of access to information contained and stored in a comprehensive intelligence database. In other words, database users would be able to access only the information in the database that their security clearances allowed them to view. This would allow the myriad of intelligence agencies to safely combine all of their databases, including those containing the most sensitive data and make the entire combined database accessible to a wide range of intelligence and law enforcement personnel, without sacrificing security for the most highly classified data. For example, a detective in Cincinnati who notices unusual activity around city hall could do a search of the comprehensive Community-wide database for “city halls in Ohio” and come up with some non-classified FBI information about possible attacks on city halls around the state or in other states. He then would get a notification from the system that there was more information about the topic, but that it was classified at a level above his clearance. At that point, he could go to his supervisor and begin the process of having that information sent to someone within the department who has the appropriate level of clearance. This would help resolve one of the many information-sharing problems facing the Intelligence Community.215 Finally, Senator DeWine’s separate filing contains a thoughtful and in-depth scenario for changing the existing American Intelligence Community’s “[b]roken [c]orporate [c]ulture,” which is risk-averse, rather than prudently risk214. Id. at 7. 215. Id. An obvious potential problem with this particular idea, however, is securing the combined intelligence database against computer hackers.

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taking.216 From his perspective: “A new organization must be built from the ground up as a small, agile, and adaptive organization with a corporate culture of taking prudent risks.”217 Moreover, it would have a limited list of targets: terrorists, proliferators, and ‘rogue states.’” 218 And its operations, according to DeWine, would emphasize “non-official operations or NOC’s” 219 unaffiliated with any official U.S. government “cover” job220 and operating over long stretches of time with considerable autonomy.221 D. Representative Jane Harman Representative Jane Harman (D-CA) offers a few nuggets of concurring insights which enlarge on the Joint Inquiry Report. First, she points out that the JIR recommendation for creating a Director of National Intelligence (DNI) would “empower” this official “to lead the [Intelligence Community] by pairing authority with responsibility.”222 By way of comparison, Harman points out that the Director of Central Intelligence “currently lacks the statutory authority” to provide “a coherent approach across agencies and overarching leadership.” 223 Second, offering a lighter touch than the tone of the Joint Inquiry Report, Representative Harman opines that while “[t]he investigation revealed that significant intelligence leads about some of the hijackers were available but did not get widely shared,” this lapse “was less a willful refusal to share information than it was a failure to grasp its significance.” 224

216. Id. at 8. 217. Id. 218. DEWINE, supra note 208, at 8. 219. Id. 220. Id. 221. See id. at 8-15. As explained by DeWine, this might include attendance at a radical Islamic mosque in the U.S., allowing the American operative to travel abroad, receiving training at a terrorist camp and to “infiltrate organizations like al Qaeda.” Id. at 14. 222. REPRESENTATIVE JANE HARMAN, JOINT INQUIRY REPORT ADDITIONAL VIEWS 1 (December 2002). 223. Id. 224. Id. at 2. In this regard, she went on to note that the “raw databases” of many American intelligence agencies like the CIA and the NSA “contain extremely valuable information that does not get noticed, shared, integrated, or acted upon.” Id.

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E. Senator Jon Kyl & Senator Pat Roberts In what is, in effect, a joint dissenting opinion from the JIR, Senators Jon Kyl (R-AZ) and Pat Roberts (R-KS) divide their concerns into three major headings: (1) “[t]he [n]eed for [a]dditional [v]iews,” 225 (2) “[d]efficiencies in the [r]eport,” 226 and (3) “[c]omments on [r]ecommendations.” 227 1. A Perspective on Process We gain a valuable insider’s peek on the Joint Inquiry process from the perspective of two relatively junior and conservative U.S. Senators. They begin their dissenting statement with a lament about how the content of the Joint Inquiry Report was assembled. Thus, by examining their opening salvo, we can discern that they were displeased with the way the staff and the combined committee’s leadership controlled things. They complain: The Report is a product of the Joint Inquiry Staff (JIS), not the Senators and the Representatives who sit, respectively, on the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). The Chairman and Vice Chairman of the SSCI and the Chairman and Ranking Member of the HPSCI (the “Big Four”) made most decisions and supervised the JIS. The JIS should be commended for putting together the first official account of events leading up to the terrorist attacks of September 11, 2001. It is difficult, however, for rank-and-file Members of the two Committees to know how thorough or accurate the Report is because of the way the JIS and the “Big Four” conducted the inquiry, withholding information and decisions from the Members and SSCI and HPSCI staff throughout the process. While the Report should be a useful historical document on which to base further

225. SENATOR JON KYL & SENATOR PAT ROBERTS, JOINT INQUIRY STAFF REPORT ADDITIONAL VIEWS 1 (December 2002) [hereinafter KYL & ROBERTS]. 226. Id. at 4. 227. Id. at 20.

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inquiries, we cannot vouch for its contents. 228 A second process-pique of Kyl and Roberts is that reasons why mistakes were made by the Intelligence Community were not emphasized. They note: After prodding by several Senators, some underlying causes of these failures were identified, but even then, they were not further probed to determine what might have been done differently. And the fact that the prodding was necessary illustrates our concern that the JIS either ran out of time or did not have the inclination or instruction to examine, for instance, why U.S. government agencies were risk-averse, who is responsible for the inadequate resources devoted to counter-terrorism efforts, why legal authorities were so confusing, and why leadership was so lacking. Without this examination, the Report will be of limited value in determining “lessons learned.” 229 Fascinating stuff! But there is more process vitriol. Third, Senators Kyl and Roberts groused that the Joint Inquiry process “was conducted and overseen in a way that left rank-and-file members at a distinct disadvantage, and left insufficient time to examine many relevant issues.”230 In this regard, they grumble that the voluminous final draft of the JIR “was delivered to Members four days before the one and only meeting scheduled for its consideration, when most Members were out of town.” 231 Moreover, they gripe that “[t]here was no debate about the Report, only the Recommendations. But there was little basis for debate since the product was strictly the work of the JIS—more like an Inspector General’s report than a typical congressional committee report.”232 Roberts and Kyl provide numerous details of what they perceived to be serious defects in the Joint Inquiry process that were labeled by the senators as “irregularities.” 233 These included the following:

228. 229. 230. 231. 232. 233.

Id. at 1. Id. KYL & ROBERTS, supra note 225, at 1-2. Id. at 2. Id. Id.

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• “Upon instructions from the Chairmen—and in violation of SSCI rules—the JIS often failed to tell Members and staff of important non-compartmented information it discovered in a timely manner.”234 • “Information relating to open hearings—such as the JIS staff statement and witness statements—were routinely provided only late on the night before the hearing.”235 • “Committee staff and sometimes even the staff directors, were often excluded from meetings of the “Big Four”, whose decisions were often made without consultation. Members’ liaison staff, and, therefore, the Members themselves, were in the dark about these decisions.”236 A fourth key process failure noted by the joint separate statement of Senators Kyl and Roberts deals with the holding of open hearings by the Joint Inquiry during the Autumn of 2002. As extensively explained by these gentlemen: The holding of open hearings was particularly frustrating. The decision to hold them was apparently made by the “Big Four” despite the concerns of the JIS and objections of other Senators. The JIS was forced to focus on them for three months, and from there had to go right into drafting the Report in order to meet the yearend deadline. Several Members voiced their opposition to holding open hearings before the investigative work was completed and the Report written (and, we had supposed agreed to). We objected, mostly in closed committee business meetings, that it was premature to convene open hearings before the investigation was complete. And indeed, at the point when the JIS began preparing for them (July, 2002), its investigations into the causes of 9/11 largely ground to a halt. Due to dramatic media leaks and the potential for

234. 235. 236.

Id. KYL & ROBERTS, supra note 225, at 2. Id.

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further compromise, intelligence agencies “pushed back” against open hearings, causing further friction with the JIS investigation. The hearings distracted these agencies, our “front line troops” on the war on terrorism, and they distracted Members and congressional staff from our traditional oversight responsibilities. They also, in our view . . . publicly revealed a lot of sensitive information from which our enemies could profit. Most of the information presented had already been revealed in closed hearings which were far more productive because those who participated could delve freely into classified information. Key figures in our counter-terrorism efforts were unnecessarily compromised by these public hearings. *** We should have been more circumspect about publicly releasing results before the investigation was complete and the two intelligence committees had had a chance to adequately review the final Report.237 2. Claimed Deficiencies in the JIR Senators Kyl and Roberts explicitly link the previouslydiscussed process failures238 to a resulting substantive Congressional report “that falls well short of addressing the core problems that led to 9/11.” 239 They confidently assert in support of this conclusion: “Because the fundamental problems that led to 9/11 are almost certainly rooted in poor policy and inadequate leadership, the investigation should have delved more deeply into conflicting interpretations of legal authorities (including presidential directives), budget allocations, institutional attitudes, and other key areas.” 240 As they explain in other words, “only such a thorough exercise will help us to make sure the failures [of

237. 238. 239. 240.

Id. at 3-4. See supra notes 228-37 and accompanying text. KYL & ROBERTS, supra note 225, at 4. Id.

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American counterterrorism policy] are not repeated.”241 Continuing to build on this assertion, the two senators observe that “[w]hat best shows the tendency of the JIS investigations to go to the water’s edge but no farther is that, in the Report, there is a pronounced tendency to identify problems as ‘facts,’ or ‘realities,’ rather than as matters to be plumbed for underlying causes.” 242 The example provided here is staff analysis that does not dig for the root causes of why the CIA did not make efforts to penetrate terrorist havens in Afghanistan and why the Pentagon did not attempt a “comprehensive response” to the terrorist bombings of American embassies in Africa in 1998 or the bombing of the U.S.S. Cole in 2000.243 The additional views of Senators Kyl and Roberts highlight five additional substantive deficiencies of the Joint Inquiry Report analysis and discussion: (a) “[r]isk [a]version,” 244 (b) “[i]nsufficient (c) “[a] [f]lawed [l]egal/[i]nstitutional [r]esources,245 [f]ramework,246 (d) “[l]eadership [f]ailures,247 and (e) the “[i]nadequate [s]cope” 248 of the JIR.

241. Id. 242. Id. 243. Id. at 4-5. 244. KYL & ROBERTS, supra note 225, at 5-8 (discussing a “legacy of caution” at key American intelligence agencies dealing with official concern about past congressional criticisms of civil liberties violations and a cultural ethos that was afraid to make mistakes). 245. Id. at 8-13 (discussing the “contradiction between high-ranking officials’ complaints about inadequate resources and the fact that, according to the Office Management and Budget, the intelligence agencies usually got what they asked for”). 246. Id. at 13-15 (criticizing ambiguous legal materials from presidential decision directives to the FISA statute). 247. Id. at 15-17. They note: al Qaeda’s attack on Washington and New York occurred after a long period of poor leadership at the highest levels of the U.S. Government regarding terrorism. Despite repeated assaults on the United States and its interests—the 1993 World Trade Center attack, the bombing of the American embassies in Kenya and Tanzania in 1998, the attack on the U.S.S. Cole in 2000, to name a few—the U.S. Government was still unwilling to treat terrorism as a true national security issue until 9/11. Id. 248. Id. at 17-20 (criticizing the failure of the JIR to fully discuss the failure of the U.S. State Department to deny visa access by 15 of the 19 hijackers from Saudi Arabia).

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3. Criticism of JIR Recommendations The Kyl-Roberts statement closes with two specific criticisms of the JIR recommendations and a general summary criticism of the failing of the JIR process. First, they dismiss the notion that an “intelligence czar” would be able to “succeed where the Director of Central Intelligence has not.” 249 Second, they object to the Joint Inquiry Report’s recommendation “calling for lower-level personnel to be held accountable by the various agencies’ Inspectors General” instead of pursuing “[a]ccountability of those at the very top” which would, in turn, “produce[ ] accountability at the intervening levels, and among officers in the field who run down leads to find terrorists.” 250 Finally, Senators Kyl and Roberts conclude: “Our duty to understand precedes our ability to improve. The [JIR], in not fully coming to terms with what produced the intelligence failures it identified, left that duty unfulfilled.”251 VI. CONGRESS AND THE ART OF OVERSIGHT OF COUNTERTERRORISM POLICY

A. Congress’ Constitutional Role of Executive Oversight Relatively little has been written on Congress’ constitutional responsibility to oversee the executive branch. Most commentators who have considered the subject have focused on the need to counterbalance the extraordinary power of the President and his executive branch officials in implementing and interpreting laws passed by Congress, the responsibility of Congress to assure that publicly appropriated funds are spent wisely and effectively and according to the intent of Congress, and the salutary effects of publicizing government operations in a free society. 252 Oversight by Congress of executive branch operations stems

249. KYL & ROBERTS, supra note 225, at 20. 250. Id. at 21. 251. Id. 252. For an excellent discussion of the constitutional and interactive problems of the congressional oversight of the executive branch, see WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRET, LEGISLATION AND STATUTORY INTERPRETATION 203-10 (2000).

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from the broad constitutional grant of “[a]ll legislative powers” to Congress,253 made more specific by the interconnected allencompassing web of Article I, Sections 8 and 9 powers dealing with the funding and structuring of executive activities.254 B. The Lost Art of Congressional Oversight While the tradition of vigorous congressional oversight of executive branch operations goes back in time more than 200 years,255 in recent decades there has been an “erosion of Congress’ 253. U.S. CONST., art. I, § 1. 254. Id. at art. I, § 8, art. I § 9. 255. David Nather, Congress As Watchdog: Asleep on the Job?, 62 CONG. QUART. WKLY 1190, 1190-93 (May 22, 2004). Prominent instances of past congressional oversight investigations include: the 1792 inquiry on the Indian attacks on American troops—the first congressional oversight inquiry—by a select House committee investigating the circumstances of an attack that killed about 600 U.S. troops commanded by Maj. Gen. Arthur St. Clair, id. at 1190; the first joint House-Senate investigative panel, conducted from December 1861 through May 1865, that examined “past and future battle plans, disloyal employees, navy installations, and war supplies and contracts” (considered “the worst-run congressional inquiry until the McCarthy hearings of the 1950s”), id.; the Financial Trusts investigation from February 1912 to February 1913 by a House Banking and Currency subcommittee looking into “the concentration of money and credit, especially the control exercised by two New York banks,” with the “panel’s report help[ing] [the] enactment of the Federal Reserve Act of 1913” among other legislation; id.; the investigations by the Senate Subcommittee on Public Lands and Surveys and the Senate Select Committee to Investigate the Justice Department, during 1923-24, into the “lease of naval oil reserves, including one called Teapot Dome under a Wyoming rock formation by the Harding Administration,” id. at 1190-91; the Defense Programs inquiry by the Special Senate Committee to Investigate the National Defense Program, during March 1941 to April 1948 (viewed as “the most effective congressional investigation ever”) into “the status of national defenses to a more specific review of war mobilization problems, shortages of critical materials such as aluminum, and fraud among contractors and lobbyists,” id. at 1191; the Kefauver Crime Hearings, from May 1950 to Summer 1951, being the Senate Special Committee to Investigate Organized Crime in Interstate Commerce, which was “the first congressional hearings to draw the rapt attention of television viewers across the nation as prominent gangsters and underworld leaders were paraded in front of the panel,” id.; the McCarthy Investigations, from January 1953 to December 1954, as the Senate Government Operations Committee’s Permanent Investigations Committee conducted “a sweeping array of probes of purported communist subversion of the U.S. government and the United Nations,” id. at 1191-92; the Watergate Hearings, during January 1973 to July 1974 of the Senate Select Committee on Presidential Campaign Activities and the House Judiciary Committee’s impeachment

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oversight skills” and inclination to investigate executive operations.256 Possible causes for this diminished effectiveness of congressional oversight include the packed schedules and shorter workweeks of Senators and Members of Congress, term limits on chairmanships of congressional committees, less funds for investigative staff, the hard-work and low-payoff of traditional oversight by legislators, the higher priority given by legislators to constituent services and legislative work, and political-pressure to go easy on the executive branch during a time of same-party control of Congress and the White House since George W. Bush became President in January 2001.257 With regard to the combined Senate-House Joint Inquiry into the September 11 terrorist attacks, knowledgeable observers contend that Congress has been “outperformed” by the National One commentator has Commission on terrorist attacks.258 concluded that the independent commission, turned over to commissioners outside of Congress: “has pried more disclosures about the 2001 terrorist attacks” than the congressional Joint Inquiry and “generated enough public pressure to force national security advisor Condoleeza Rice to testify publicly, and Bush and Vice President Dick Cheney to brief the panel in private—all witnesses that the congressional” Joint Inquiry “never heard Another observer, commenting on the seventeen from.”259 preliminary staff reports written by the independent commission on 9/11, noted in implicit criticism to the congressional Joint Inquiry Report: In contrast to the plodding or self-promoting style of so many government documents, the staff reports of the commission investigating the September 11, 2001 attacks

inquiry into President Richard M. Nixon’s illegal activities, id. at 1192; the Senate “Select Committee to Study Government Operations With Respect to Intelligence Activities,” from January 1975 to April 1976, chaired by Senator Frank Church (D-Idaho), focusing on the CIA’s domestic spying activities during the Vietnam War and leading to the formation of the Senate Select Committee on Intelligence, id. at 1192-93; and the Iran Contra hearings, from November 1986 to August 1987, before the jointly-convened House and Senate Intelligence Committees, id. at 1193. 256. Id. at 1191. 257. Id. at 1191-94. 258. Id. at 1193. 259. Id.

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have provided something Washington: a good read.

truly

rare

69 in

official

In 17 crisply worded reports, the commission staff laid out facts from the events that shook and marred the lives of millions. Using a style that is remarkably free of artifice, the authors achieved a high point in detail, clarity and coherence.260 C. Improving Congressional Oversight of Counterterrorism The conventional wisdom is that because of the profound distrust between Republicans and Democrats in Congress there exists “political paralysis” to conduct effective congressional oversight of executive counterterrorism activities and to implement the type of structural changes needed to improve postSeptember 11 national security.261 As this line of thinking goes, until the voters decide to create divided government between Congress and the Presidency, nothing much will happen to change the culture of counterterrorism policy in the CIA, the FBI, and the Pentagon.262 Perhaps this is correct. But looking to the long-term, there are some institutional improvements that Congress should consider. 1. Consolidate Intelligence Functions “Jurisdiction over the various intelligence agencies and their budgets is currently divided among a number of committees” in both the House and the Senate.263 Keeping up on the oceanic flow of twentieth century counterterrorism policy requires focus. “If lawmakers are going to try to consolidate the government’s intelligence gathering operations, as they should, they can set a good example by taking on the turf battles within their own ranks first.”264 260. Christopher Marquis, Reports On Attacks Are Gripping, Not Dry, N.Y. TIMES, June 20, 2004, at A23. 261. See Helen Fessenden, Intelligence Panels’ Mission Corroded by Air of Distrust, 62 CONG. QUART. WKLY. 730 (Mar. 27, 2004). 262. Id. at 733. 263. Editorial, Wake Up the Watchdogs, N.Y. TIMES, June 12, 2004, at A26. 264. Id. See also 9/11 COMMISSION REPORT, supra note 8, at 419-21 (recommending consolidation of congressional oversight over

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2. Foster Intelligence Expertise Under current congressional rules, individual members of the intelligence committees “may serve only a prescribed term.”265 This procedural restriction “was adopted in the 1970s to prevent lawmakers from being co-opted by the” executive branch’s intelligence agencies.266 In practice, however, members of the House and Senate are “driven from the committees just as they develop the necessary expertise to become . . . good overseer[s] of the intelligence community.”267 As a related reform, the House and the Senate “should consider limiting the number of other positions that the leaders of the intelligence committees may hold to make sure that they have all the time needed for their responsibilities.”268 3. Experiment with More Decentralized and Indirect Forms of Intervention While centralized statutory and budgetary changes in American executive branch intelligence activities and counterterrorism policies are appropriate (e.g., the recent congressional acquiescence to the JIR recommendations for a statutory change to create a new Director of National Intelligence, and the recommendation for a centralized all-source terrorism information fusion center (IFC)),269 innovative congressional initiatives that complement this fundamental restructuring are needed to make sure that the executive branch is vigorously following through on new counterterrorism reforms. The intelligence committees of the House and the Senate should consider drawing upon the model of “destabilization rights” in public law litigation, articulated by Columbia Law professors Sabel and Simon, whereby plaintiffs earn judicial approval “to disentrench or unsettle a public institution when, first, it is failing to satisfy minimum standards of adequate performance and, second, it is substantially immune from conventional political

counterterrorism and fostering expertise of specific members of Congress). 265. Editorial, supra note 263, at A26. 266. Id. 267. Id. (internal quotation marks omitted). 268. Id. See also 9/11 COMMISSION REPORT, supra note 8, at 419-21. 269. See supra notes 124-37 and accompanying text; infra note 304.

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mechanisms of correction.”270 While counterterrorist institutional failures of key national security agencies of the executive branch of the federal government, like the FBI, CIA, and NSA, fitfully uncovered in the Joint Inquiry Report, are different from institutional failures of public schools, mental health facilities, prisons, police departments, and housing authorities, these differences are in degree, not in kind.271 Institution building, maintenance, repair, and improvement have been a recurrent theme of American law and democracy since Hart and Sacks articulated their vision of legal process philosophy in the 1950s.272 They noted, in this regard: [T]o help in seeing that the principle of institutional settlement operates not merely as a principle of necessity but as a principle of justice this means attention to the constant improvement of all of the procedures which depend upon the principle in the effort to assure that they yield decisions which are not merely preferable to the chaos of no decision but are calculated as well . . . to advance the larger purposes of society.273 Indeed, Guido Calabresi has described the legal process school as primarily interested in “comparative institutional analysis,”274

270. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1062 (2004). 271. Cf. id. at 1021-53 (discussing the details of institutional breakdown in public schools, mental health facilities, prisons, police departments, and housing authorities). 272. See generally HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1-4 (10th ed. 1958) (William N. Eskridge, Jr. & Philip P. Frickey, eds. 1994) (theorizing that human conflict, in the satisfaction of human wants is an inescapable feature of human interdependence and in resolving this inherent and systemic conflict “affirmative and knowledgeable cooperation” through law is necessary. Moreover, Hart and Sacks recognized that as part of their fundamental interdependence with others, “people form themselves into groups for the protection and advancement of their common interests”; so, too, individuals establish “[t]he [i]nstitutionalization of [p]rocedures for the [s]ettlement of [q]uestions of [g]roup [c]oncern”). 273. Id. at 6 (emphasis added). 274. Guido Calabresi, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts, 55 STAN. L. REV. 2113, 2113 (2003).

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with new legal process theorists of the Columbia School, like Sabel and Simon, embracing “a spirit of Deweyen experimentalism by focusing on the development of new institutions”275 and institutional procedures. Just as courts in various types of public law litigation involving schools, prisons and the like have, with maturing experience, developed a general sense of the “inadequacy of command-and-control approaches”276 of highly prescriptive and detailed injunctive orders because they came to appreciate that “they lacked both the information and depth and range of control to properly formulate and enforce command-and-control while “command-and-control interventions injunctions”277 exacerbated resistance on the part of [institutional] defendants,”278 so should the United States Congress and its intelligence committees develop a general sense of the inadequacy of top-down, command-and-control statutory and budgetary measures to alter the behavior of executive branch intelligence and counterterrorism agencies. With the threat of imposing a “penalty of default”279 of fundamental restructuring of executive branch intelligence and counterterrorism executive branch agencies or appropriations riders, the intelligence committees of the House and the Senate should seek to experiment with three specific decentralized and indirect forms of congressional oversight borrowed from the SabelSimon new legal process insights about recent trends in judicial supervision of public interest litigation. First, the intelligence committees of Congress should seek to spur “stakeholder negotiation”280 superintended by a special mediator, with appropriate security clearance appointed by the relevant congressional committee. Conducted with the authority of an ongoing legislative oversight hearing, a congressional intelligence committee should mandate that all relevant stakeholders from the executive branch intelligence community 275. Id. at 2125 n.50 (internal quotation marks omitted). 276. Sabel & Simon, supra note 270, at 1053. 277. Id. 278. Id. 279. Id. at 1067. For a general theoretical discussion of the challenges and tools available for the conscientious American legislator, see generally Robert F. Blomquist, The Good American Legislator: Some Legal Process Perspectives and Possibilities, 38 AKRON L. REV. 895 (2005). 280. Sabel & Simon, supra note 270, at 1067.

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deliberate with each other (most frequently in secret closed sessions) “face to face” and be required to “defend their positions with reasons.”281 Intelligence committee-imposed stakeholder negotiations should require participants “to listen to each other in good faith and to remain open to learning”282 and, “[t]o the extent that a [stakeholder’s] proposals rest on factual premises, the [stakeholder] must make available relevant information within her control”283 without the excessive security blocks on sensitive information that has characterized past executive branch responses to congressional inquiries. The goal of these stakeholder negotiations under congressional oversight imprimatur should be consensus, to be achieved through “openness”284 and “mutual respect”285 within the confines of the (often secret) negotiations. The intelligence committees of Congress should strive to groom one or more of its members to develop the role as mediator between executive branch agencies because of the power and prestige this legislator would enjoy. However, a professional, non-legislative intelligence/counterterrorism mediator, under the control of the relevant congressional intelligence committees, might prove to be useful as well. Second, the intelligence committees of Congress should seek to instigate a “rolling-rule regime”286 where the norms of counterterrorism policy emerging from stakeholder negotiations with executive branch officials are “provisional,”287 “incorporate a process of reassessment and revision with continuing stakeholder Stakeholders would be urged by the participation.”288 congressional oversight mediators to develop “performance measures that are as specific as possible,”289 leaving to executive branch intelligence and counterterrorism agency officials “substantial discretion,”290 subject, however, to “precise targets.”291 281. Id. at 1068. 282. Id. 283. Id. 284. Id. 285. Sabel & Simon, supra note 270, at 1068. 286. Id. at 1069 (footnote omitted). 287. Id. 288. Id. 289. Id. 290. Sabel & Simon, supra note 270, at 1069.

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In addition, “some processes, most often including documentation and reporting, will be specified in detail.”292 With continuous feedback by the congressional mediators, the intelligence committees of Congress should develop interim oversight reports which include “general descriptions of the [intelligence/counterterrorism stakeholders’] goals, prescriptions for measuring their progress toward them, and commitments to make information available.”293 Moreover, these congressional interim intelligence oversight reports might also include “a variety of other norms that set out, perhaps in great detail, practices or operations procedures”294 of executive branch agencies. Third, the intelligence committees of Congress should try to attain “transparency”295 in the executive branch intelligence and counterterrorism operations, which, at a minimum, insists that “the policies and operating norms of the rolling-rule regimes must be explicit”296 and publicly declared to Congress (subject to reasonable national security blocks to public access). Transparency should be “both an accountability norm and a learning device,”297 which is “intended in part to facilitate practices of disciplined comparison.”298 Congress, when armed with these comparative metrics—which might include private sector assessments of performance of counterterrorism measures299—could reward those executive branch agencies which 291. Id. at 1070. 292. Id. 293. Id. at 1071. 294. Id. According to Professors Sabel and Simon: [W]hatever the technical legal status of the plans, their function is not so much to coerce obedience as to introduce internal deliberation and external transparency. Forcing the [stakeholders] . . . to agree on a clear description of their practices puts pressure on them to reflect on and explain what they are doing. Moreover, the practice norms enable outsiders to determine what the practitioners are up to. They complement the performance norms by describing the inputs that generate the outputs indicated by those norms. Id. (footnote omitted). 295. Sabel & Simon, supra note 270, at 1071. 296. Id. 297. Id. at 1072. 298. Id. 299. As an excellent model for private sector input into sensitive national security matters, see NATIONAL INTELLIGENCE COUNCIL, GLOBAL TRENDS 2015: A DIALOGUE ABOUT THE FUTURE WITH NONGOVERNMENTAL EXPERTS NIC 2000-

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achieve good performance with autonomy and recommendations for requested funding.300 “As for poor performance, the trick” for Congress would be “to balance remedial support, loss of control, and outright punishment” of deficient executive branch actions.301 But legislative oversight “[e]xperimentalism does not provide determinate guidance on the question of sanctions. It pins hopes largely on the effects of transparency”302 with a context of national security secretism. “By exposing poor performance as clearly as possible, it opens the system to general scrutiny and exposes it more readily”303 to congressional intervention. VII. CONCLUSION

The Joint Inquiry conducted by the intelligence committees of Congress to ascertain the causes of executive branch failures to anticipate and possibly prevent the terrorist attacks of September 11, 2001 was deeply flawed. Hobbled by secretism and obstruction by the executive branch, including the lack of cooperation by the President and Vice President, divided by partisan bickering within Congress, distracted by misguided public hearings and accompanying political grandstanding, and weakened by poor leadership of the Senate and House intelligence committees, the Joint Inquiry and its work product, the Joint Inquiry Report, suffered a lack of credibility. Moreover, the ineffectiveness of the Joint Inquiry on 9/11 can be understood as part of a steady erosion in recent decades of the art of congressional oversight of the executive branch of the federal government. Congress could help to rectify its lackluster performance of executive branch oversight, in general, and improve its oversight of executive agency counterterrorism performance, in particular, by considering three pragmatic internal congressional reforms304: 02 (Dec. 2000) (discussing, among other “drivers and trends,” the development of “transnational terrorism” and possible American responses). 300. Sabel & Simon, supra note 270, at 1072. 301. Id. 302. Id. at 1073. 303. Id. 304. The danger of these proposed reforms is that they will end up being more process than real congressional oversight of executive branch counterterrorism policy. Cf. Orde F. Kittrie, More Process Than Peace: Legitimacy, Compliance, and the Oslo Accords, 101 MICH. L. REV. 1661, 1663 (2003) (book review) (the reliance of the drafters of the Oslo Accords relied to

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(1) consolidating intelligence review functions into the intelligence committees; (2) fostering intelligence expertise of Senate and House intelligence committee members; and (3) experimenting with more decentralized and indirect forms of intervention by creating intelligence mediators who would be responsible to Congress and who would seek to spur (a) stakeholder negotiation, (b) a rolling rule regime of norms for counterterrorism performance and practice, and (c) transparency in executive branch intelligence and counterterrorism operations, subject to reasonable secrecy required by legitimate national security considerations.

an excessive degree “on open-ended gradualism and ambiguity in their efforts to turn peace negotiations into a legally binding, final settlement” which “reliance proved to be disastrously counterproductive”). For the rather tepid suggestions by the 9/11 Commission to improve congressional oversight of intelligence and homeland security, see THE 9/11 COMMISSION REPORT, supra note 8, at 419-21. For interesting recent articles discussing the constitutional dimensions of the post-9/11 terrorism environment—beyond the scope of this Article—see generally Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011 (2003); Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004). For an account of congressional bills to incorporate the 9/11 COMMISSION REPORT’s recommendations into legislation, see Philip Shenon, Bipartisan Bill Offered on 9/11 Panel’s Proposals, N.Y. TIMES, Sept. 8, 2004, at A1. See also Editorial, Duty Chafes on Capitol Hill, N.Y. TIMES, Sept. 8, 2004, at A26 (“The bipartisan Report’s parallel warning that Congress must reform itself to apply true intelligence oversight is flat-lining so far on Capitol Hill as rival committee leaders defend a checkerboard full of important fiefs.”). Congress, in late 2004, with prodding by President Bush, ended up passing legislation that encapsulated many of the 9/11 Commission’s recommendations—some of which had also been suggested by the congressional Joint Inquiry. Perhaps the most significant change in the intelligence law reforms was the creation of the position of National Intelligence Director. See Intelligence, 63 CONG. QUART. WKLY. 24 (Jan. 3, 2005) The first homeland security question to be resolved is whether the House will create a more powerful committee to oversee [intelligence] or continue to fragment oversight among dozens of panels. . . . Congress passed the intelligence overhaul bill, but now the Intelligence and Homeland Security committees will have to deal with what they wrought, overseeing yet another major government reorganization. Id.

SCHIFF

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Samaritans: Good, Bad and Ugly: A Comparative Law Analysis* Damien Schiff**

For two thousand years the story of the Good Samaritan has captivated the Western mind.1 As an explication of the divine *An earlier version of this article was presented in April, 2004, before a comparative law seminar led by Joseph Darby, J.D., Ph.D, Professor Emeritus, University of San Diego School of Law. I am grateful to Professor Darby for his encouragement. I thank David S. Moynihan, J.D., LL.M. (Int’l Law), LL.M. (Tax), and the Reverend Joseph N. Tylenda, S.J., for their helpful comments. ** Attorney, Pacific Legal Foundation, Sacramento, California. J.D., University of San Diego School of Law, 2004; B.A., Georgetown University, 2000; Law Clerk, Hon. Victor J. Wolski, United States Court of Federal Claims, 2004-05. The views expressed herein represent the opinions of the author only. 1. Luke 10:25-37. And behold, a certain lawyer got up to test him, saying, “Master, what must I do to gain eternal life?” He said to him, “What is written in the Law? How dost thou read?” He answered, “Thou shalt love the Lord thy God with thy whole heart, and with thy whole soul, and with thy whole strength, and with thy whole mind; and thy neighbor as thyself.” And he said to him, “Thou hast answered rightly; do thou this and thou shalt live.” But he, wishing to justify himself, said to Jesus, “And who is my neighbor?” Jesus answered, “A certain man was going down from Jerusalem to Jericho, and he fell in with robbers, who after stripping him and beating him went their way, leaving him half-dead. But, as it happened, a certain priest was going down the same way, and when he saw him, he passed by. And likewise a Levite also, when he was near the place and saw him, passed by. But a certain Samaritan as he journeyed came upon him, and seeing him, was moved with compassion, and he went up to him and bound up his wounds, pouring on oil and wine; and setting him on his own beast, he brought him to an inn and took care of him. And the next day he took out two denarii and gave them to the innkeeper and said, ‘Take care of him; and whatever more thou spendest, I, on my way back,

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command to love one’s neighbor, the parable represents Christ’s answer to a lawyer’s attempt at self-justification in asking who qualifies as a “neighbor.”2 The biblical account does not imply that the Levite and the Priest, both of whom passed by the injured man, had broken Hebraic law. That is its point. Charity begins where justice ends. The Good Samaritan parable teaches that justice alone is radically insufficient to bring human beings to the fullness of existence; that end can be achieved only when justice is supplemented by charity.3 In the West the primary purpose of justice was rendered in the maxim unicuique tribuere jus suum.4 The duties of justice could be compelled and were properly within the competence of the state, unlike the duties of charity; these the state left to “Him who searches the heart.”5 This was the universal opinion in the West until the late eighteenth century, when the first bad By the early Samaritan criminal statutes were enacted.6

will repay thee.’” “Which of these three, in thy opinion, proved himself the neighbor to him who fell among the robbers?” And he said, “He who took pity on him.” And Jesus said to him, “Go and do thou also in like manner.” Id. 2. Id. 3. See, e.g., Whitesides v. Southern R. Co., 38 S.E. 878, 880 (N.C. 1901) (“…suffering and death appeal…to the feelings of humanity, for which the good Samaritan has always been revered and extolled, to the shame and condemnation of the priest and Levite…but history fails to show that a breach of the Levitacal law could have been claimed….”) (Cook, J., dissenting). 4. This maxim, along with honeste vivere and alienum non laedere, formed the basis of the Classical and Byzantine conception of civil justice. See, e.g., THE INSTITUTES OF JUSTINIAN 3 (J.B. Moyle, D.C.L. trans., 4th ed. Gaunt 1999) [hereinafter INSTITUTES] (“Justice is the set and constant purpose which gives to every man his due. Jurisprudence is the knowledge of things divine and human, the science of the just and unjust.”); THE DIGEST OF JUSTINIAN 3 (Theodore Mommsen, Paul Krueger & Alan Watson eds., 1985) [hereinafter DIGEST] (“The basic principles of right are: to live honorably, not to harm any other person, to render to each his own.”). Importantly, the focus of each of these principles is on the actor as one obliged to do something or to refrain from doing something; justice is thus duty—and not rights— based. 5. H.D. Minor, The Moral Obligation as a Basis for Liability, 9 VA. L. REV. 420, 431 (1923). 6. The phrase “bad Samaritan statutes” refers to those statutes that punish with criminal sanction persons who fail to assist or fail to attempt to

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twentieth century, Russia, Italy, Portugal, Spain and Germany had all enacted statutes requiring citizens either to assist others in need of rescue or notify the authorities. During the 1930s, when Communism had taken deadly hold of Russia, National Socialism Germany, and Fascism Italy, the affirmative duties that bad Samaritan statutes created were made more rigorous.7 In 1941 Marshall Petain brought occupied France into line with this trend by enacting the country’s first duty-torescue provision.8 After World War II, Germany, France and Italy underwent considerable political changes, yet each retained its bad Samaritan statute. The countries then behind the Iron Curtain also uniformly adopted duty-to-rescue statutes.9 Despite this powerful movement, few common law jurisdictions followed suit, and those that did, did so only halfheartedly.10 Today, with the exception of five states,11 no American jurisdiction recognizes a general duty to rescue in either criminal or private law. In contrast, almost every civil law jurisdiction in Europe, as well as in Latin America, recognizes various types of duties to rescue and related tort actions.12 How to account for this

assist another in need. Likewise, a “bad Samaritan” is one who fails to assist another in need. For a more detailed but less-encompassing definition, see generally JOEL FEINBERG, Harm To Others, in 1 THE MORAL LIMITS OF THE CRIMINAL LAW 126 (1984). The phrase “Good Samaritan statutes” refers to those statutes that immunize would-be rescuers from tort actions by the person intended to be helped. Likewise, a “good Samaritan” is one who complies with the duty to assist, whether successful in lending assistance or not. The object of the good Samaritan’s endeavors, or the bad Samaritan’s failures, is the “victim.” 7. See John P. Dawson, Rewards for the Rescue of Human Life?, in THE GOOD SAMARITAN AND THE LAW 63, 69 (James M. Ratcliffe ed., 1966) [hereinafter GOOD SAMARITAN]. 8. 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120 (Edward A. Tomlinson trans., 1999). 9. F.J.M. Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Law Provisions Concerning Failure to Rescue, 14 AM. J. COMP. L. 630, 656-57 (1966). 10. See, e.g., WIS. STAT. ANN. § 940.34 (West 2005); HAW. REV. STAT. ANN. § 663-1.6 (LexisNexis 2002); R.I. GEN. LAWS § 11-56-1 (2002); VT. STAT. ANN. Tit. 12, § 519 (2002); MINN. STAT. ANN. § 604A.01(1) (West 2000). 11. Vermont, Minnesota, Wisconsin, Rhode Island and Hawaii. These states have criminal statutes imposing a duty to assist or to contact the authorities under certain circumstances. See supra note 10. 12. Alberto Cadoppi, The Failure to Rescue in Continental Criminal Law, in THE DUTY TO RESCUE: THE JURISPRUDENCE OF AID 93, 104 (Michael A.

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incongruity? Several reasons come to mind: (1) The common law is individualistic and is repulsed by broad affirmative duties, no matter their inspiration, (2) the welfarist systems of most European countries naturally complement collective and affirmative legal duties, whereas the laissez faire model in common law countries generally conflicts with these same affirmative duties, (3) the enactment of duties to rescue represents a triumph of tort values in their “competition” with the values of contract and (4) differing conceptions of the nature of the state lead to duties to rescue vel non. Whether the common law should adopt the civil law tradition of a general duty to rescue is a question requiring a comparative law analysis for a complete answer. This comparative inquiry also has the happy result of testing, in one highly specialized area, the convergence thesis,13 which maintains that the common law and the civil law are gradually shedding their differences to become indistinguishable. I begin my analysis in Part I with an historical introduction.14 Following that groundwork, I closely parse dutyto-rescue statutes from civil law and common law jurisdictions, and highlight important distinctions among the civilian examples in Part II.15 Subsequently, in Part III, I review the main objections to duties to rescue arising from psychology, history, culture, American constitutional law, causation theory, philosophy and theology.16 Along the way I demonstrate why at first glance a civil law-type duty to rescue, sounding in either tort or criminal law, appears incommensurable with Anglo-American jurisprudential fundaments, and why the Europeans have traveled so far down the road of affirmative duties while the common law countries have “lagged.” I ultimately conclude in Part IV that a wholesale adoption of the civilian approach is unwarranted, but what is possible, and Menlowe & Alexander McCall Smith eds., 1993). 13. For a variety of views, see, e.g., JAN SMITS, THE MAKING OF EUROPEAN PRIVATE LAW 2-6, 28-33, 103-05 (Nicole Kornet trans., 2002). See generally Alan Watson, A Common Private Law for Europe?, 9 MAASTRICHT J. EURO. & COMP. L. 329 (2002); Pierre Legrand, Against a European Civil Code, 60 MOD. L. REV. 44 (1997); Pierre Legrand, European Legal Systems Are Not Converging, 45 INT’L & COMP. L.Q. 52 (1996). 14. See infra Part I and text accompanying notes 18-54. 15. See infra Part II and text accompanying notes 55-206. 16. See infra Part III and text accompanying notes 207-77.

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indeed appropriate, is a limited statutory duty to inform the authorities or professional rescue personnel in emergencies. To that end I have appended a model statute and commentary. The model law encompasses the best of the European and civilian experience while tempering the whole in light of common law necessities.17 The model statute is drafted with an eye toward striking a fair compromise between, on the one hand, the legitimate bases for imposing a duty to rescue, and on the other, the equally legitimate reasons for preserving a substantial sphere of individual autonomy. I. HISTORY

A. From Ancient Times through the Nineteenth Century According to Pufendorf, the ancient Egyptians imposed a general duty to rescue.18 Plato’s Laws had a bad Samaritan statute,19 but in Roman law there was no general duty to rescue.20 Christian Europe was not deaf to Christ’s parable: both St. Augustine and St. Thomas recognized the moral obligation to help another in need.21 Notwithstanding this moral duty, pre-modern 17. See infra Parts IV.A and IV.B. 18. Cadoppi, supra note 12, at 97. 19. THE LAWS OF PLATO 277 (Thomas L. Pangle trans., 1980) (“He who was a bystander in any of these cases and failed to give help according to the law must pay a penalty . . . .”). 20. Cadoppi, supra note 12, at 97. But Cicero believed that there were two types of injustice: that which one causes, and that which one allows to happen. See CICERO, DE OFFICIIS 25 (Walter Miller trans., 1968). There are, on the other hand, two kinds of injustice—the one, on the part of those who inflict wrong, the other on the part of those who, when they can, do not shield from wrong those upon whom it is being inflicted. For he who, under the influence of anger or some other passion, wrongfully assaults another seems, as it were, to be laying violent hands upon a comrade; but he who does not prevent or oppose wrong, if the can, is just as guilty of wrong as if he deserted his parents or his friends or his country. Id. 21. Cadoppi, supra note 12, at 97. For St. Thomas’s opinion, see his SUMMA THEOLOGICA II-II, QU.79, A.3: I respond saying that an omission supposes the lack of a good, and not just any good, but an owed good. The good owed according to reason pertains to justice: to the legal type of justice, if the debt be accepted according to the order of divine or human law; to the special

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Europe imposed no general duty to rescue, and, not surprisingly, given the chronic problem of the Middle Ages—lawlessness.22 For if the medieval state had a difficult enough time enforcing laws to prevent citizens from acting, how much more trying it would have been to enforce laws that required citizens to act.23 In the Enlightenment’s wake, European legal theorists generally opposed legal duties to assist: neither Pufendorf nor Kant advocated them.24 The first European jurisdiction to impose any statutory duty to rescue was Bavaria in 1751; the duty applied, however, only in

type of justice, if it be considered as owing to one’s neighbor. Wherefore it follows that justice is a special virtue, and a habit, and that an omission is a special type of sin distinct from those sins that are opposed to other virtues. Wherefore it follows that to do the good, to which is opposed an omission, is a certain and special part of justice distinct from the refusal to do evil, to which is opposed a transgression, and thus is an omission distinguished from a transgression. Id. (translation mine). This is not to say that interest in altruism is strictly Western. See, e.g., THE WORKS OF MENCIUS 201-02 (James Legge trans., 1970). Mencius said, “All men have a mind which cannot bear to see the sufferings of others. . . . [E]ven now-a-days, if men suddenly see a child about to fall into a well, they will without exception experience a feeling of alarm and distress. They will feel so, not as a ground on which they may gain the favour of the child’s parents, nor as a ground on which they may seek the praise of their neighbours and friends, nor from a dislike to the reputation of having been unmoved by such a thing. From this case we may perceive that the feeling of commiseration is essential to man . . . .” Id. 22. This is a natural result of the general absence of a strong central government. The one European exception to that—England—was not immune from civil strife and foreign intrigue during the reign of the Angevins. See WINSTON S. CHURCHILL, THE BIRTH OF BRITAIN 187-95 (1956) (contrasting the powerful central government of Henry I with civil strife during the reign of his successor, Stephen). 23. And there surely is a peculiar disjunction when we speak of enforcement of the law in the Middle Ages, because no police force existed; enforcement was self-help. But this is not to say that moral restraint was absent; quite the contrary, the feudal system was entirely founded upon a man’s observance of his moral obligation to keep the peace, whether as lord or vassal. 2 HILLAIRE BELLOC, A HISTORY OF ENGLAND 41 (1927). And the more important the person, the graver the breach of “his peace.” See CHURCHILL, supra note 22, at 216. 24. Cadoppi, supra note 12, at 98.

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times of external aggression.25 A broader duty was recognized in the Constitutio Criminalis Theresiana (1768) and the Neue Bambergische Peinlische Gesetzgebung (1792-95).26 A similar provision was included in the proto-German Civil Code, the Preussisches Allgemeine Landrecht (1791).27 The Strafsgesetzbuch (1871) provided for a duty to rescue only when there existed a common danger or disaster; the statutory provision was referred to as the Liebesparagraph,28 perhaps denoting its Christian inspiration. For the composers of the French Code Pénal of 1810, the notion of affirmative duties imposed by law was repugnant to the classical liberal view then in vogue, which posited man as selfsufficient and autonomistic.29 In this vein one French scholar has remarked that in the revolutionary slogan “liberté, egalité, fraternité,” fraternité comes last.30 Similar opposition to a legal duty to assist occurred in Italy, where a proposal for a general duty to rescue was attacked because it conflicted with the longstanding principle that such a duty should only be imposed on certain people at certain times and not generally.31 Early Spain (1822) adopted a duty to rescue in its Criminal Code,32 while Portugal (1867) was the first to provide a private cause of action based upon violations of the duty to rescue.33 Peculiarly, Russia (1845) provided a duty to rescue but made it applicable only to Christians, reserving the issue for the ecclesiastical courts.34 Thus, by the end of the nineteenth century, half the European continent recognized a general duty to rescue punishable by criminal sanction. At common law no such duty developed. Although England

25. Id. at 98. 26. Id. 27. Id. 28. Id. at 100-01. 29. Id. at 102. 30. ANDRÉ TUNC, RECUEIL D.H., quoted in Josef Hofstetter & Wolfgang V. Marschall, Amendment to the Belgian Code Pénal: The Duty to Rescue Persons in Serious Danger, 11 AM. J. COMP. L. 66, 70 n.18 (1962). 31. Cadoppi, supra note 12, at 99. 32. Id. at 99-100. 33. Id. at 104. 34. Id.

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was not without supporters for a general duty to rescue,35 most common law jurisdictions adopted the view of Lord Macaulay, expressed in his Notes on the Indian Penal Code: It is true that the man who, having an abundance of wealth, suffers a fellow creature to die of hunger at his feet, is a bad man, a worse man, probably, than many of those for whom we have provided very severe punishment. But we are unable to see where, if we make such a man legally punishable, we can draw the line. If the rich man who refuses to save a beggar’s life at the cost of a little copper is a murderer, is the poor man just one degree above beggary also to be a murderer if he omits to invite the beggar to partake his hard-earned rice?36

35. See e.g., JEREMY BENTHAM, SPECIMEN OF A PENAL CODE, in 1 WORKS 164 (J. Bowring ed., 1844) (“Every man is bound to assist those who have need of assistance, if he can do it without exposing himself to sensible inconvenience. This obligation is stronger, in proportion as the danger is the greater for the one, and the trouble of preserving him the less for the other.”). See also Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 WASH. U. L.Q. 1, 3 nn.11-13 (1993) (citing Plato, John Stuart Mill and Jeremy Bentham as supporting the general duty to rescue). 36. THOMAS B., LORD MACAULAY, NOTES ON THE INDIAN PENAL CODE, reprinted in THE LEGAL ENFORCEMENT OF MORALITY 161-62 (Thomas C. Grey ed., 1983) (the “line-drawing” objection to duties to rescue). Professor Malm terms this the “sorties” argument, which goes thus: The law can require that a person go one step in helping another; why not a second step? See Heidi Malm, Civic Virtue and the Legal Duty to Aid, in CIVILITY AND ITS DISCONTENTS 213, 219 (Christine T. Sistare ed., 2004) [hereinafter CIVILITY]. If the moral significance between not acting and step one is indistinguishable from the moral significance between step one and step two, then the law cannot make a principled stand at enforcing step one while leaving step two to the individual; therefore, the law must enforce step two. See id. What about step three? And four? And ad infinitum until one finds that the law requires step fifty-two because it required step two. See id. The typical response to the Macaulay-sorties argument is that the law must make arbitrary distinctions all the time; a line must be drawn if we are to have law at all; hence a line-drawing attack is really an attack on the principle of regulated conduct. See e.g., Lionel H. Frankel, Criminal Omissions: A Legal Microcosm, 11 WAYNE L. REV. 367, 382-84 (1965). On the other hand, we do regulate by arbitrary line-drawing and accept the inescapable element of arbitrariness as inseparable from the act of regulation, but we are willing to tolerate the cost because we believe that some regulation of the conduct in question is appropriate; in the case of duties to rescue, the central issue is

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Absent some special relationship between the rescuer and the one to be rescued, the common law did not impose a legal obligation on the would-be Good Samaritan. The New Hampshire Supreme Court’s opinion in Buch v. Amory Manufacturing37 exemplifies the common law position in American jurisdictions. An infant trespasser’s hand was crushed by heavy equipment after the adult overseer had told the child to leave but made no further efforts to protect the minor from harm. The court commented on the legal-ethical question presented: With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved. Suppose A., standing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child’s injury, or indictable under the statute for its death.38 The common law made allowances for a duty to rescue in the following circumstances: (1) where a special relationship existed (e.g., spouse to spouse, parent to child, or landowner to licensee or invitee); (2) where a contract or statute imposed an affirmative duty upon the rescuer; (3) where the rescuer had voluntarily assumed the duty to rescue; and (4) where the rescuer had created the danger.39 Under the heading of “special relationship,” the

whether any regulation is appropriate, and therefore the cost of arbitrariness in line-drawing may outweigh the benefits of any regulation. See Joseph Ellin, The Mind of a Bad Samaritan, in CIVILITY 233, 242 (“Scrooge is better dealt with by the Spirit of Christmas than by the shadow of the hangman.”). For sharp criticism of Lord Macaulay’s argument, see FEINBERG, supra note 6, at 150-59. 37. 44 A. 809 (N.H. 1898). 38. Id. at 810. For a similar and nearly contemporaneous English view, see JAMES FITZJAMES STEPHEN, 3 A HISTORY OF THE CRIMINAL LAW OF ENGLAND 9-11 (1883). 39. For a collection of typical cases, see Paul H. Robinson, Criminal

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common law adopted the continental principle omissionem: a parent who wilfully failed to feed that it should die, would be guilty of murder.40 law did not impose a general duty to rescue applying between strangers.

of commissio per his child, wishing But the common paradigmatically

B. Twentieth Century Developments Once the Nazis assumed power in Germany, their totalitarian philosophy led, in 1935, to a great broadening of the existing duty to rescue.41 One commentator sees in this strengthening a typical difference between the liberal and authoritarian state: Whereas for the liberal state harm and offense form the basis of criminality, in the authoritarian state any ethical or political breach of duty can be criminalized because it threatens the social collective and elevates the individual over the group.42 As a result of German occupation, Vichy France passed its own duty-to-rescue statute. The Germans wanted both to make Frenchmen help imperilled German soldiers and to foster ratting on the Gaullists.43 At that time, French commentators were mixed on the new duty: some adamantly opposed it; others espoused it as the pinnacle of Christian charity.44 Following Liability for Omissions: A Brief Summary and Critique of the Law in the United States, 55 REVUE INTERNATIONALE DE DROIT PÉNAL 633, 638-39 (1984). 40. France has come to the opposite conclusion. F.J.M. Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Law Provisions Concerning Failure to Rescue, 14 AM. J. COMP. L. 630, 648 (1966). 41. Cadoppi, supra note 12, at 101. 42. Id. This principle is exemplified by the language of the Nazi statute, which included the phrase gesundes Volksempfinden [sound sense of the people]. See id. 43. Edward A. Tomlinson, The French Experience with the Duty to Rescue: A Dubious Case for Criminal Enforcement, 20 N.Y.L. SCH. J. INT’L & COMP. L. 451, 462-63 (2000). 44. Cadoppi, supra note 12, at 102. The French experience must be understood in the background of the infamous Woman of Poitiers Case of 1897. See Tomlinson, supra note 43, at 464. Blanche Monnier was the insane daughter of the Dean of the local college; she was never seen outside the family home, although it was acknowledged that the Dean took good care of her. Id. at 464-65. Once the Dean passed away, Blanche Monnier’s mother refused to provide for her needs. Id. The brother, who lived across the street, was aware of the squalid conditions in which Blanche lived, for he came over frequently and visited. Id. A few weeks following the mother’s death, Blanche’s condition was discovered and prosecutions for assault and battery were brought against, among others, the brother. Id. Although the trial

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Germany’s defeat, France repealed almost every piece of legislation passed during the occupation. One of the few statutes that survived was the duty-to-rescue provision. After World War II, Belgium enacted its own duty to rescue, but not without opposition.45 Spain and Portugal modified their provisions.46 In Spain the duty was broadened slightly in the 1950s, while Portugal’s new Civil Code (1982) followed the German model.47 Austria adopted its first duty to rescue in 1975.48 Whereas there is but one prominent European holdout, Sweden having rejected a bad Samaritan statute in 1972,49 almost every Latin American nation has enacted a duty-to-rescue provision in its criminal code.50 Presently there is no duty to rescue in England.51 Likewise, generally among U.S. jurisdictions there is neither a criminal nor a civil duty. Those states that have criminal provisions impose only slight penalties,52 and none recognizes a private cause of action by a victim against the bad Samaritan.53 Every U.S. jurisdiction has a Good Samaritan statute, however, whereby the rescuer is made immune from a civil suit prosecuted by the rescue

court convicted the brother, the appeals court reversed on the grounds that the brother had committed no affirmative act, that the French courts were not empowered to criminalize activity on their own; and that if an affirmative duty were to be imposed upon the brother, it would have to come from the legislature. Id. at 465-67. 45. See Hofstetter & Marschall, supra note 30, at 66-67. Those in favor of the provision argued that it would counteract moral laziness; those opposed rallied against the legal enforcement of morality. See Cadoppi, supra note 12, at 102-03. 46. Cadoppi, supra note 12, at 103. 47. Id. at 104. See Jorge de Figueiredo Dias, Les Delits d’Omission dans le Droit Pénal Portugais, 55 REVUE INTERNATIONALE DE DROIT PÉNAL 845, 849 (1984). 48. Cadoppi, supra note 12, at 104. See Manfred Burgstaller, Omissive Offenses and Penal Responsibility for Omissive Conduct in Austria, 55 REVUE INTERNATIONALE DE DROIT PÉNAL 535, 543 (1984). 49. Id. 50. Cadoppi, supra note 12, at 104. 51. See W. Douglas Cullen, The Liability of the Good Samaritan, 1995 JURID. REV. 20, 20-21 (1995). For the Australian experience, see generally Louis Waller, Rescue and the Common Law: England and Australia, in THE GOOD SAMARITAN AND THE LAW 141 (James M. Ratcliffe ed., 1966) [hereinafter GOOD SAMARITAN]. 52. See supra note 10. 53. See infra Part II.A.2.

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victim.54 II. POSITIVE LAW

This Part sets forth the positive law of several civil and common law jurisdictions. The positive law of these jurisdictions consists of criminally enforceable duty-to-rescue statutes, private causes of action for failure to assist, private causes of action by Good Samaritans for damage incurred during rescue, and Good Samaritan immunity. Each piece of positive law is set forth in turn. A. Statutes Criminally enforceable duty to rescue statutes are found in modern day civil and common law jurisdictions alike. 1. Civil Law Jurisdictions This Part identifies five criminally enforceable duty to rescue statutes, four existing and one former, representative of those found in European civil law jurisdictions: Germany, France, Italy, Spain and Communist Russia. a. Germany Germany’s duty to rescue provision was amended following World War II, and it presently reads: §323c. Failure to Render Assistance. Whoever does not render aid during accidents or common danger or need, although it is required and can be expected of him under the circumstances and, especially, is possible without substantial danger to himself and without violation of other important duties, shall be punished with imprisonment for not more than one year or a fine.55

54. Melody J. Stewart, How Making the Failure to Assist Illegal Fails to Assist: Observation of Expanding Criminal Omission Liability, 25 AM. J. CRIM. L. 385, 387 n.9 (1998). These statutes generally apply to medical professionals. Id. 55. Compare 32 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE GERMAN PENAL CODE 192 (Stephen Thaman trans., 2002) with Código Penal art. 219, reprinted in Dias, supra note 47, at 849 (the new Portuguese provision). Failure to assist is punishable “in case[s] of grave necessity,

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b. France The present provision in the French Criminal Code derives from the 1945 version of the Vichy law of 1941. It reads: Article 223-6[2]. Any person who willfully abstains from rendering assistance to a person in peril when he or she could have rendered that assistance without risk to himself, herself, or others, either by acting personally or by calling for aid, is liable to [a penalty of five years of misdemeanor imprisonment and to a fine of 500,000 francs].56 c. Italy Italy’s present duty-to-rescue criminal statute, dating from the 1930s, exemplifies to one Italian scholar the Fascist Weltanschauung.57 Italy’s statute reads: Article 593. [Failure to help]. Whosoever, finding an abandoned child of less than ten years, or another person incapable of providing for himself through physical or mental illness, through old age or for other cause, omits to inform the authorities immediately, is punishable . . . [penalty] The same penalty may be imposed on one who, finding a human corpse or a person who appears to be dead, or an injured person or a person in danger, omits to caused namely by disaster, accident, public calamity or common danger that imperils the life, health, physical integrity or liberty of another [if the aid could have been rendered] without grave risk to one’s life or physical integrity or without violating other important duties.” Código Penal art. 219, reprinted in Dias, supra note 47, at 849 (translation mine). A study conducted in the 1960s found no German cases permitting recovery by the rescue victim against a bad Samaritan on the basis of a violation of the German Penal Code. See John P. Dawson, supra note 7, at 71 n.16. 56. 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. The French cases dealing with civil liability are discussed infra Parts II.B & II.C. The Belgian Criminal Code, Article 422, requires personal assistance or seeking the help of others if the victim is in grave peril, whether or not the would-be rescuer personally observes the situation, but there is no duty where serious danger would be present to the would-be rescuer or to another. Cadoppi, supra note 12, at 127-28. 57. Cadoppi, supra note 12, at 112.

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ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 give immediate assistance or to inform the authorities without delay.58

d. Spain The Spanish Criminal Code has contained a bad Samaritan provision since the first half of the nineteenth century.59 The present provision reads: 489 bis. He who does not help a person who finds himself unprotected and in manifest and grave danger, when he could help without risk to himself or to another, shall be punished with major arrest or a fine of 30,000 to 60,000 pesetas. [¶] The same penalty for him who, prevented from lending assistance, does not urgently seek outside help. [¶] If the victim finds himself in distress due to the actions of him who failed to lend assistance, the penalty shall be minor detention.60

58. Id. at 128. 59. Id. at 103. 60. CÓDIGO PENAL [C.P.] art. 195 (Spain) (translation mine). The Penal Code for the Mexican Federal District, also applicable to the Republic in federal matters, contains a similar provision: Upon finding abandoned in whatever place a minor unable to care for himself or a wounded person, disabled or threatened by any danger whatsoever, a punishment of from one to two months in prison or a fine of from 10 to 500 pesos shall be imposed, if the person does not give immediate notice to the authorities or fails to lend the necessary assistance, when he could have done so without personal risk. CÓDIGO PENAL FEDERAL [C.P.F.] art. 340 (translation mine). The Guatemalan Criminal Code (1973) reads in pertinent part: One who, encountering a child under ten who is lost or abandoned, a wounded person, or a person who is disabled or who is facing imminent danger, fails to give him the help which is necessary in the circumstances, when he could do so without personal risk, will be punishable with [penalty]. Cadoppi, supra note 12, at 128. The Cuban Criminal Code (1979) provides: Whosoever does not help or provide the required aid to a wounded person or to one exposed to a danger which threatens his life, bodily integrity or health, when there would be no risk to his own person, is punishable . . . with a prison sentence of three to nine months and a fine, or both. Id. at 129.

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e. Communist Russia61 Article 130 of the Stalinist constitution of 1936 provided that all citizens had to “respect the rules of socialist intercourse.”62 Professor Agarkov was the first to argue that article 130 created

61. For an analysis of the affinity between Marxism and duties to rescue, see John Harris, The Marxist Conception of Violence, 3 PHIL. & PUB. AFF. 192, 197, 209-11 (1974). “Marx believes that where human intervention could prevent this harm, then failure to prevent the harm must be seen as a cause.” Id. at 197. Harris attempts to justify the Marxist conception of violence and provide a logical if not desirable intellectual underpinning for adopting that conception. He divides refrainings into two distinct groupings, that of negative causation and that of negative action. Id. at 209. Negative causation exists where a person could have prevented X by some action but refrained from that action, which action is “expected or required” of him, or where X involves harm to a human being. Id. Negative action exists where a person’s failure to act brought about X, and where the person did know or should have known this “causal” connection. Id. Harris argues that his distinction reflects H.L.A. Hart’s dichotomy between causal responsibility and “moral liability-responsibility.” Id. at 210. Harris concludes: If we have a duty not to kill others, it would be strange indeed if the duty not to kill by positive actions was somehow stronger than the duty not to kill by negative actions. I do not see how we can escape the conclusion that in whatever sense we are morally responsible for our positive actions, in that same sense we are morally responsible for our negative actions. Id. at 211. Harris makes a fundamental conceptual error, however. In his defense it should be noted that Harris’s chief concern was not to differentiate between moral and legal responsibility, although if a Marxist’s decision to punish a person depends upon whether that person brought about a “morally” offensive state of affairs, then it matters little whether one terms Harris’s framework a moral or legal one. Regarding the merits of his argument, summarized in the quoted material above, Harris errs because he equates the act of killing with the non-act of refraining to prevent a death. Both actions can be morally repugnant, but they remain separate and distinct moral evils. To take innocent human life is gravely disordered; to refrain from saving another’s life can, depending upon the circumstances and the psychological variables of the actors involved, also be gravely disordered; but simply because two acts are evil does not mean that they are equivalent in every respect. And this is Harris’s error. When one refrains from saving another, he may be just as morally guilty as the one who kills, but he is not guilty for the same reason, because he has not caused a death; he has simply refrained from saving a life. The distinction is nice but crucial; Harris either overlooks or disregards it. 62. Kristin A. DeKuiper, Stalking the Good Samaritan: Communists, Capitalists and the Duty to Rescue, 1976 UTAH L. REV. 529, 532 (1976).

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an enforceable duty to rescue.63 The question became somewhat academic when the following provision in article 127 of the 1960 Russian Criminal Code was adopted: Failure to Rescue. Failure to render aid which is necessary and clearly not suffering of postponement to a person in danger of his life, if the offender knew that such aid could be given without serious danger to himself or other persons, or failure to inform the proper authorities or persons about the necessity to render aid, is punished with corrective labor not exceeding six months or with public censure, or entails the application of socialcorrective measures.64 2. Common Law Jurisdictions Five U.S. jurisdictions have some form of a criminally enforceable duty to rescue: Hawaii, Minnesota, Rhode Island, Vermont and Wisconsin.65 a. Hawaii Hawaii’s duty to rescue statute reads: Duty to assist. Any person at the scene of a crime who knows that a victim of the crime is suffering from serious 63. Id. One textbook writer of the Soviet era argued that the constitutional duty to rescue was violated if a strong swimmer, standing on the bank of a river, observed a man drowning and failed to attempt to rescue him. See JOHN M. HAZARD, COMMUNISTS AND THEIR LAW 412 (1969). In an actual case from 1960s Russia, a group of neighbors were prosecuted under the duty-to-rescue statute for failing to enter a burning hut and rescue several children. Id. at 415. The neighbors were convicted, but the appellate court remanded for a determination of whether a causal link existed between their inaction and the children’s death. Id. A Soviet reporter opined that the neighbors should be guilty because: Russians have acquired from the long centuries of conflagrations of the Tartar-Mongol invasions the courage to enter the flames of burning huts, and this trait has been intensified by the experiences of the revolution and World War II. For these reasons entering a burning hut to save life is accepted as a civic duty . . . . Id. 64. Feldbrugge, supra note 40, at 656-57. 65. See HAW. REV. STAT. ANN. § 663-1.6 (LexisNexis 2002); MINN. STAT. ANN. § 604A.01(1) (West 2000); R.I. GEN. LAWS § 11-56-1 (2002); VT. STAT. ANN. tit. 12, § 519 (2002); WIS. STAT. ANN. § 940.34 (West 2005).

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physical harm shall obtain or attempt to obtain aid from law enforcement or medical personnel if the person can do so without danger or peril to any person. Any person who violates this subsection is guilty of a petty misdemeanor.66 b. Minnesota Minnesota’s duty to rescue statute provides the following: Duty to assist. A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.67 c. Rhode Island Section 11-56-1 of Rhode Island’s General Laws provides for the following duty to rescue: Duty to assist. Any person at the scene of an emergency who knows that another person is exposed to, or has suffered, grave physical harm shall, to the extent that he or she can do so without danger or peril to himself or herself or to others, give reasonable assistance to the exposed person. Any person violating the provisions of this section shall be guilty of a petty misdemeanor and shall be subject to imprisonment for a term not exceeding six (6) months, or by a fine of not more than five hundred dollars ($500), or both.68 d. Vermont Vermont’s duty-to-rescue statute reads: 66. 67. 68.

HAW. REV. STAT. ANN. § 663-1.6. MINN. STAT. ANN. § 604A.01(1). R.I. GEN. LAWS § 11-56-1.

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ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 Emergency medical care. A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.69 e. Wisconsin Lastly, Wisconsin law provides: Duty to aid victim or report crime. Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim. [¶] A person need not comply with this subsection if any of the following apply: 1. Compliance would place him or her in danger; 2. Compliance would interfere with duties the person owes to others; 3.... assistance is being summoned or provided by others.70

3. Textual Comparison of Statutes71 This Part provides a textual comparison by jurisdiction, civil and common, of the preceding statutes’ common elements: persons in peril, failure to assist, degree of risk and knowledge of peril. a. Persons in Peril As a general rule applicable to both civilian and common law duty-to-rescue statutes, the duty does not arise unless someone’s life, health or safety is at risk; a mere threat to property, however precious, is insufficient.

69. VT. STAT. ANN. tit. 12, § 519 (a). 70. WIS. STAT. ANN. § 940.34. 71. Tomlinson uses a four-part analysis in parsing the French statute; I shall use the same in analyzing all the provisions here. See Tomlinson, supra note 43, at 475-87.

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i. Civil Law Jurisdictions The French statute requires that the victim be “in peril.”72 French case law has interpreted that requirement to mean the following: (1) A dying person is in peril, even though no assistance could prevent the person from dying;73 (2) The duty arises whether or not the peril was caused by the victim himself;74 (3) The peril must be “imminent, patent, and requiring an immediate intervention”;75 and (4) a mere danger to physical health may give rise to a duty to assist.76 The German Penal Code provision makes no specific reference to peril; the duty to rescue arises only during “accidents or common danger or need.”77 This language echoes the very first German provisions, which imposed a duty only in cases of foreign aggression.78 Conceivably, the German statute could be more widely applied than the French version, as the former is not tied to a particular person’s suffering: an entire village aflame, passengers trapped in a derailed train, or one injured in a barroom brawl might fall within its scope. The language could even be applied to cases where only property is at risk. These possibilities, however, are not realized in practice, for the German statute has been applied less extensively than its textually more limited French equivalent.79 72. 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. 73. Id. at 476. The Court of Cassation reasoned that not to console a dying person by one’s presence violates “the duty of humanity.” Id. 74. Id. at 477. Tomlinson argues that the case law likely imposes a duty upon a homeowner who has justifiably shot a burglar to come to the aid of the burglar, who is considered to be “in peril.” Id. at 477-78. 75. Id. at 478. 76. Id. at 479. Tomlinson cites a lower court case where the convicted doctor refused to treat the flu-suffering son of a judge whose rulings the doctor disliked. Id. Strangely, a lower court has refused to recognize a person contemplating suicide, absent some particular distress or depression, as being “in peril.” Id. at 480-81. 77. 32 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE GERMAN PENAL CODE 192. 78. Cadoppi, supra note 12, at 100-01. 79. One commentator interprets the German danger requirement as encompassing “any serious danger to bodily integrity and health.” Aleksander W. Rudzinski, The Duty To Rescue: A Comparative Analysis, in GOOD SAMARITAN, supra note 39, at 98. See also Feldbrugge, supra note 40, at 633, 640.

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The Russian provision is clear: there is no duty to rescue unless a victim’s life is in danger.80 Under the Italian provision, the duty arises when the victim is incapable of providing for himself, appears inanimate, wounded or otherwise in danger.81 Under the Spanish Criminal Code, the duty arises when the victim is defenseless and in manifest and grave danger.82 Under the Mexican provision,83 a disabled, wounded or otherwise threatened victim is a necessary predicate to the duty.84 Thus, the gamut runs from the most cabined duty, the Russian version requiring rescue only when the victim’s life is in danger, to the most expansive, the German version requiring rescue in a general accident or disaster. ii. Common Law Jurisdictions In Minnesota, a duty arises when the victim is exposed to or has suffered grave physical harm.85 The same standard applies in Rhode Island.86 In Wisconsin, mere exposure to bodily harm is not enough; rather, the danger must arise from the commission of a crime.87 Thus, dangers caused by an accident or by a non-criminal tort cannot give rise to a duty to rescue. In Vermont the duty arises with exposure to grave physical harm.88 Lastly, in Hawaii, a duty arises only when there is serious physical harm concomitant to the commission of a crime.89 b. Failure to Assist The degree of assistance required of a Good Samaritan varies from country to country in the civil law jurisdictions, and state to state in the common law jurisdictions.

80. 81. 82. 83. 84. 85. 86. 87. 88. 89.

Feldbrugge, supra note 40, at 656-57. Cadoppi, supra note 12 at 128. C.P., supra note 60. C.P.F., supra note 60. Id. MINN. STAT. ANN. § 604A.01(1) (West 2000). R.I. GEN. LAWS § 11-56-1 (2002). WIS. STAT. ANN. § 940.34 (West 2005). VT. STAT. ANN. tit. 12, § 519 (2002). HAW. REV. STAT. ANN. § 663-1.6 (LexisNexis 2002).

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i. Civil Law Jurisdictions In France the duty-to-rescue statute speaks only of rendering assistance.90 The French courts have concluded that the duty to assist is not necessarily discharged by calling the authorities.91 The Court of Cassation has held that the “method which necessity demands” is the appropriate standard to determine whether the duty has been met.92 In one case, a father-in-law refused to offer a pole to his drowning son-in-law and instead went off to seek help.93 The court convicted the father-in-law because, under the circumstances, he could have rescued his son-in-law himself.94 In another case, a motorist with several passengers stopped at the scene of an accident where two soldiers lay bloodied on the ground.95 The motorist refused to give the soldiers a lift to town, stating that his car was already full.96 Once in town, the motorist contacted the authorities.97 Another motorist picked up the soldiers and brought them to a hospital where they were treated for their injuries.98 The Court of Cassation upheld the first motorist’s conviction on the ground that the statute requires would-be rescuers to act reasonably under the circumstances; the conviction was proper because the motorist’s conduct was unreasonable.99 The courts have convicted parents who refused medical treatment for their children and healers who advised against medical treatment,100 but have refused to convict parents who were ignorant of their child’s emergency.101 In Germany there is no clear standard regarding the degree of assistance required of the would-be rescuer,102 although the text of

90. 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. 91. Tomlinson, supra note 43, at 482. 92. Id. at 483. 93. Id. 94. Id. at 482. 95. Id. at 483. 96. Id. 97. Id. 98. Id. 99. Id. at 483-84. 100. Id. at 484. 101. Id. 102. See Cadoppi, supra note 12, at 101-02, 111.

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the German provision speaks only of rendering aid.103 Presumably that aid could encompass notification of the authorities in place of personal rescue. We can divine the scope of the Russian provision, notwithstanding the dearth of cases interpreting the Russian duty-to-rescue provision, because the text of the statute clearly requires the rendering of necessary aid,104 but the would-be rescuer is given an absolute choice between personal rescue and notification of the authorities.105 The Spanish provision speaks of “lending assistance.”106 The option of notifying the authorities is permitted only when one is prevented from lending personal assistance.107 Thus, the Spanish provision provides a set of mutually exclusive duties that are dependent upon the circumstances. The Italian provision provides an absolute choice to the would-be rescuer: give immediate assistance or contact the authorities.108 The Mexican federal provision requires the same.109 Thus, the gamut runs from the “choice” jurisdictions, such as Italy and Mexico, to the French provision, for which notification is not always sufficient to discharge the duty to assist, and perhaps to the German provision, depending on its interpretation. ii. Common Law Jurisdictions Minnesota requires reasonable assistance, which “may” include notification of the authorities.110 Rhode Island demands only reasonable assistance.111 Like the Spanish provision,112 the Rhode Island statute refers to reasonable assistance in relation to the victim;113 consequently, notification to the authorities may not discharge the duty if that aid is not deemed to be assistance to the

103. See 32 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE GERMAN PENAL CODE 192. 104. Feldbrugge, supra note 40, at 656-57. 105. Id. 106. C.P., supra note 60. 107. Id. 108. Cadoppi, supra note 12, at 128. 109. C.P.F., supra note 60. 110. MINN. STAT. ANN. § 604A.01(1) (West 2000). 111. R.I. GEN. LAWS § 11-56-1 (2002). 112. C.P., supra note 60. 113. R.I. GEN. LAWS § 11-56-1 (2002).

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victim. The Wisconsin provision gives the would-be rescuer a choice between personal assistance and notification to the The Vermont statute requires reasonable authorities.114 assistance unless the assistance is being provided by others;115 perhaps notification to the authorities would discharge the Vermont duty, for once emergency personnel responded to the Good Samaritan’s call, they would presumably qualify as persons providing “assistance or care” within the meaning of the statute.116 Hawaii’s statute requires notification to the authorities only; no mention is made of personal rescue. c. Degree of Risk On this point the statutes vary greatly among the civil law jurisdictions; however, greater uniformity is found among the common law jurisdictions. i. Civil Law Jurisdictions On this point the statutes vary greatly. In France the duty to rescue arises only when the rescuer bears no risk by his intervention.117 This textual interpretation differs, however, from the gloss adopted by the French courts.118 Generally, the rule is that the risk perceived by the would-be rescuer must be one that a reasonable person in the same circumstances would have Hence, “the squeamish, panicky, or ignorant perceived.119 defendant must bear the risks a reasonable person would bear.”120 For example, a French lower court convicted several peasants of failing to rescue a bloodied and wounded bicyclist whom they had found in their barn, notwithstanding the peasants’ claim that they had thought the man to be a burglar.121 In opposition to that case’s result is one from the Cour d’Appel Riom, where a man was found not guilty when he failed to put out the fire on a mechanic’s 114. 115. 116. 117.

WIS. STAT. ANN. § 940.34 (West 2005). VT. STAT. ANN. tit. 12, § 519 (2002). See id. 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. 118. Tomlinson, supra note 43, at 485. 119. Id. at 485. 120. Id. at 487. 121. Id. at 486-87.

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100 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 clothes, instead putting out the fire in his car.122 The man’s justification was that he believed that the car might have exploded had he not put out the fire when he did.123 In Germany there is a triple qualification on the duty to rescue: (1) The contemplated action must be one that can be expected of the would-be rescuer; (2) The action must be capable of being rendered without substantial danger to the rescuer; And (3) the action must not violate other important duties.124 The first qualification is a nod to the German criminal law doctrine of Unzumutbarkeit, namely that the law will not require an individual to act beyond what he is capable of doing.125 This principle is also incorporated in the Austrian and Portuguese analogues of the German statute.126 Interestingly, the third qualification is also found in Vermont’s statute. Given these three qualifications, one may safely conclude that the German duty to rescue rarely arises. The Italian provision provides for no exception to affirmative conduct,127 although an exception is unnecessary if a Samaritan can fulfill the duty to rescue by notifying the authorities.128 In Spain, a Samaritan can avoid the duty to rescue only if the rescue would create a personal risk or a risk to a third party, but the statute does not state the quantum of risk to be incurred that would excuse the duty.129 Presumably some reasonable person standard, like that adopted in France,130 would be applied to make that determination. The Mexican provision excuses the would-be rescuer if he would incur a personal risk.131 It is unclear whether the personal risk exception applies only to personal rescue or to notification of the authorities as well, but assuming that notification of the authorities rarely involves personal risk, the 122. Note, The Failure to Rescue: A Comparative Study, 52 COLUM. L. REV. 631, 641 n.72 (1952). 123. Id. 124. 32 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE GERMAN PENAL CODE 192. 125. Cadoppi, supra note 12, at 128. 126. Id. at 107-08. 127. See id. at 128. 128. See id. 129. See C.P., supra note 60. 130. See 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. 131. C.P.F., supra note 60.

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question may be academic. The Russian provision does not require personal rescue that would entail a serious danger to the rescuer or to another.132 ii. Common Law Jurisdictions Greater uniformity is found among the common law jurisdictions. In Minnesota, the would-be rescuer is excused if the rescue would create danger or peril to himself or to others.133 Presumably the danger would have to be real, or at least appear so to the would-be rescuer. The Rhode Island statute excuses the would-be rescuer on the same grounds.134 The Wisconsin statute is absolute on its face (i.e., no allowance is made for danger to the rescuer), although the rescuer may discharge his duty by notifying the authorities.135 The Vermont statute does not require rescue when the would-be rescuer would endanger or imperil himself or where a duty to rescue would interfere with other important duties.136 Hawaii requires intervention unless it would create danger or peril to any person, but that intervention is textually limited to notification of the authorities.137 d. Knowledge of Peril Is the duty to rescue limited in application to those persons physically present at the scene, or does it extend to those not present but who have knowledge of the critical situation? i. Civil Law Jurisdictions The French provision does not address the foregoing question directly.138 Case law indicates, however, that the duty extends to those not physically present at the scene.139 Professor Tomlinson argues that in practice it is enough that the defendant should

132. 133. 134. 135. 136. 137. 138.

Feldbrugge, supra note 40, at 656-57. MINN. STAT. ANN. § 604A.01(1) (West 2000). R.I. GEN. LAWS § 11-56-1 (2002). WIS. STAT. ANN. § 940.34 (West 2005). VT. STAT. ANN. tit. 12, § 519 (2002). HAW. REV. STAT. ANN. § 663-1.6 (LexisNexis 2002). See 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. 139. Tomlinson, supra note 43, at 487.

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102 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 have known of the peril.140 The Court of Cassation has explained of the requirement that a doctor “informed of a peril of which he alone is able to judge the seriousness cannot refuse his assistance without doing what he can to assure himself that the peril does not require his personal attention.”141 Another case reported by Tomlinson involved a doctor who was asked at his residence to come quickly to attend to a bleeding victim of a bar-room brawl.142 The doctor refused to leave his house but offered to help the injured person if he were brought to the residence.143 The victim died from his wounds and the doctor was convicted of having failed to rescue.144 Another case involved a mayor who while walking came across a cyclist lying in a ditch.145 Thinking the man drunk or dazed, the mayor made the cyclist comfortable and left.146 He returned to check on the man a few hours later, but other people had taken the cyclist to the hospital, where he died.147 The mayor was acquitted, with the Court of Cassation affirming on the grounds that the mayor was not aware of the cyclist’s peril and, consequently, was not obliged to render assistance.148 The German provision contains no explicit requirement that the would-be rescuer be present.149 One commentator interprets the German provision as not requiring geographical proximity,150 but another takes the opposite view.151 Certainly the farther one is from an accident, the less one can be expected to do in the way of rescue. The Italian and Spanish provisions require that the 140. Id. 141. Id. 142. Id. at 488-89. 143. Id. 144. Id. As a result of the case the French Parliament attempted to amend the duty to rescue so as to apply only to persons present at the scene. Id. at 489. The Latin Quarter Riots of 1968 intervened and caused the disbanding of Parliament before the bill could be passed. Id. 145. Id. at 490-91. 146. Id. 147. Id. 148. Id. For more cases involving doctors, see Andrew Ashworth & Eva Steiner, Criminal Omissions and Public Duties: The French Experience, 10 LEGAL STUD. 153, 159-60 (1990). 149. 32 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE GERMAN PENAL CODE 192. 150. Cadoppi, supra note 12, at 106. 151. Rudzinski, supra note 79, at 102.

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would-be rescuer have come upon the victim.152 The same requirement is found in the Mexican analogue.153 The Russian provision has no explicit nearness requirement.154 ii. Common Law Jurisdictions Minnesota explicitly requires that the would-be rescuer be present at the scene of the emergency.155 Rhode Island and Hawaii do the same.156 In Wisconsin and Vermont, knowledge is sufficient for the duty to arise.157 e. Conclusion Although almost every civil law European jurisdiction has a bad Samaritan law, these duty-to-rescue statutes vary widely in the scope of the duty that they impose. Generally, all require the victim to have suffered or be about to suffer some grave harm. No jurisdiction in practice requires intervention to save property, although the German provision is textually broad enough to be so applied. The danger to the victim need not be life threatening, however. The extent of the assistance required also varies according to jurisdiction. Some countries provide the would-be rescuer with a safe-harbor, permitting the notification of authorities to fulfill the duty to rescue in every instance.158 At the other end of the spectrum is France, whose courts may hold would-be rescuers to have violated their duty notwithstanding their notification of the authorities. Every jurisdiction in practice excuses would-be rescuers from their duty if the contemplated rescue is sufficiently dangerous; most provisions refer to a “grave”

152. Cadoppi, supra note 12, at 128. 153. See C.P.F., supra note 60. 154. Feldbrugge, supra note 40, at 656-57. 155. MINN. STAT. ANN. § 604A.01(1) (West 2000). 156. See R.I. GEN. LAWS § 11-56-1 (2002); HAW. REV. STAT. ANN. § 663-1.6 (LexisNexis 2002). 157. WIS. STAT. ANN. § 940.34 (West 2005); VT. STAT. ANN. tit. 12, § 519 (2002). 158. See, e.g., Cadoppi, supra note 12, at 128 (Italian Good Samaritan provision); C.P., supra note 60 (Spanish Good Samaritan provision); Feldbrugge, supra note 40, at 656-57 (Russian Good Samaritan provision); 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120 (French Good Samaritan provision).

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104 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 or “serious” danger.159 While the French provision merely refers to “risk,”160 in practice French defendants have been acquitted only when the risk allegedly perceived would also have been perceived by a reasonable person in the defendant’s circumstances. Lastly, civil law jurisdictions are mixed on the question of knowledge of peril: some require the would-be rescuer to be present at the scene for the duty to arise, while others require only knowledge of the situation. The American states’ provisions are textually similar to their civil law analogues but differ most importantly in two crucial respects: the American statutes impose very slight penalties never greater than a petty misdemeanor;161 and none of the American statues has been vigorously enforced.162 B. Private Causes of Action for Failure to Assist Although no civil or common law jurisdiction statutorily provides for a private right of action for the failure to provide assistance, bad Samaritans’ victims can nevertheless maintain private causes of action in these jurisdictions under the appropriate circumstances. 1. Civil Law Jurisdictions No civil law jurisdiction has a provision explicitly conferring a right to sue upon a victim who required assistance under the criminal statute but was not given assistance; however, this fact has not prevented the courts in these jurisdictions from providing bad Samaritans’ victims with a cause of action. Indeed, in France the right of the victim to sue the bad Samaritan is well established. The suit is based upon one of two theories: (1) the breach of the criminal law duty to rescue is also a breach of duty for a simple tort action; or (2) the bad Samaritan’s failure to act, even without the criminal duty, is actionable in tort because it

159. See supra note 10; Cadoppi, supra note 12, at 128-29; C.P., supra note 60; Feldbrugge, supra note 40, at 656-57. 160. 31 THE AMERICAN SERIES OF FOREIGN PENAL CODES: THE FRENCH PENAL CODE 120. 161. See supra note 10. 162. Indeed, one American commentator has referred to these American statutes as “feel good” laws. Stewart, supra note 54, at 422.

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was in itself unreasonable.163 For example, in the case already mentioned of the bad Samaritan father-in-law who failed to help his drowning son-in-law,164 the latter appeared as a partie civile in the criminal trial and recovered 25,000 francs.165 On the other hand, if the criminal duty is not breached, and the conduct of the rescuer was reasonable under the circumstances, the French courts will generally not allow recovery even though the “victim” of the Good Samaritan has sustained injuries by the rescue.166 In one case, a man suffered a heart attack while attending a circus; no doctor was available, but a nurse also in attendance came to the man’s aid.167 Her asepsis was faulty and the man developed an abscess.168 The Cour d’Appel Paris sustained the man’s action against the circus for not having a doctor, but dismissed the action against the nurse, holding that under the circumstances her actions were reasonable and therefore not actionable.169 The German courts have not followed the French example.170 Understandably, the principles that the French courts have enunciated would be generally applicable to other civil law jurisdictions: the victim’s right to recovery must hinge upon either the principle that a duty to act in criminal law also creates a duty to act in private law, or, alternatively, that the failure to rescue is unreasonable and therefore actionable. The latter theory presents a causation problem by requiring that an omission serve as the cause of a harm, but the French have arguably circumvented this difficulty by concluding that the principle of human liberty requires that people be responsible for both their commissions and omissions.171 2. Common Law Jurisdictions No common law jurisdiction, even among those that have bad

163. See André Tunc, The Volunteer and the Good Samaritan, in GOOD SAMARITAN, supra note 51, at 49, 50. 164. See Dawson, supra note 7, at 72. 165. Id. 166. Tunc, supra note 163. 167. Id. at 51. 168. Id. 169. Id. 170. See generally Dawson, supra note 7. 171. Tunc, supra note 163, at 49.

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106 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 Samaritan statutes, recognizes a private right of action sounding in tort for breach of a general duty to rescue.172 If, however, the victims of a failure to rescue can prove a special relationship between themselves and the bad Samaritan an action will lie against the latter according to the usual principles of duty, breach, causation and damages, where the breach is in the failure to act.173 C. Private Causes of Action by Good Samaritans for Damages Incurred During Rescue 1. Civil Law Jurisdictions As is the case with causes of action against bad Samaritans, civil law jurisdictions generally make no express provisions for action by Good Samaritans against their “victims.” Nevertheless, some jurisdictions have interpreted other civil code provisions or general civil law principles to permit recovery in these instances.174 In France, recovery by Good Samaritans against their victims is sustained on three theoretical grounds: (1) negotiorum gestio;175 (2) implied contract;176 and (3) simple tort.177 Negotiorum gestio178 is a civil law principle, derived from the Roman law doctrine of mandate, that allows recovery to a person who has incurred expenses in managing the affairs of another who 172. See supra note 10. 173. For an analysis of the common law rationale undergirding “special relationship” torts, see infra Part III.E. 174. See, e.g., Tunc, supra note 163, at 48-49. 175. See, e.g., DIGEST, supra note 4, at 99. If any man has managed the affairs of an absentee, even though it is without his knowledge, he still has an action for whatever he has spent beneficially on his business and also for any obligation he has taken upon himself in furtherance of the business of the absentee. As a result, this situation gives rise to an action on both sides, which is called an action for unauthorized administration [negotiorum gestorum]. Id. See also CODEX JUSTINIANUS II.18(19); INSTITUTES, supra note 4, at 15355. For a discussion of the doctrine’s Roman origins, see RUDOLPH SOHM, THE INSTITUTES: A TEXTBOOK OF THE HISTORY AND SYSTEM OR ROMAN PRIVATE LAW 411-12 (James Crawford Ledlie trans., 3d ed. 1970). See also LEON SHELEFF, THE BYSTANDER: BEHAVIOR, LAW, ETHICS 130-32 (1978). 176. See Tunc, supra note 163, at 51-52. 177. See id. at 53. 178. See supra note 175.

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is incompetent or otherwise unable to handle his business.179 The theory is somewhat analogous to the common law principle of unjust enrichment. In the context of duty to rescue, both French and German courts have interpreted the doctrine to permit recovery by Good Samaritans against their victims. One famous German case decided before the Reichsgericht in 1941 involved a husband and wife who were being driven along a road.180 The driver lost control of the automobile and the vehicle fell into a river.181 All three occupants escaped from the car, but only the husband and driver made it to the bank.182 The wife remained in the river and began to drown while calling out for help.183 A nearby stranger dove into the river and kept the wife afloat until the driver rescued her, but the stranger drowned.184 An action was brought against the husband and wife by the deceased’s family for loss of support.185 In the end the wife and husband were required to maintain the widow and minor children.186 The Reichsgericht reasoned that, in calling out, the wife had impliedly made an offer for assistance which the fallen rescuer accepted.187 Thus the deceased’s estate could maintain an action for the cost of managing the wife’s “affairs.”188 The French Court of Cassation arrived at a similar result in a 1955 case.189 A car with several occupants caught on fire.190 One of the occupants was able to escape, but returned to the burning vehicle to rescue the driver, who was insured.191 In the process the rescuer was badly burned and later died.192 The deceased’s estate won a judgment against the driver’s insurance company on the theory that the rescuer was the manager of the insurer’s 179. See John P. Dawson, Negotiorum Gestio: Intermeddler,” 74 HARV. L. REV. 817, 819-26 (1961). 180. Dawson, supra note 7, at 73. 181. Id. 182. Id. 183. Id. at 73-74. 184. Id. at 74. 185. Id. 186. Id. at 76. 187. Id. at 74. 188. Id. at 76. 189. See id. at 81. 190. Id. 191. Id. 192. Id.

“The

Altruistic

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108 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 affairs, which the Court of Cassation affirmed.193 In the area of implied contract, French courts have afforded Good Samaritans a remedy for injuries or expenses incurred in coming to the aid of the rescue victim.194 The theory presumes that the victim impliedly (or perhaps explicitly) called for help; that the request was an offer; and that the rescuer accepted the offer.195 Lastly, recoveries have been upheld on the general civil law theory of tort. Typically in these cases the rescue victims have gotten themselves into the predicament through their own fault, and it is that fault which is deemed the cause of any injury that the rescuer subsequently suffers. One example comes from a 1955 Cour d’Appel Paris case in which a truck driver negligently stuck with his truck on a railroad track.196 After a train collided with the truck two strangers came to the driver’s assistance.197 While they were trying to help, a train from the opposite direction collided with the truck, killing the would-be rescuers.198 The driver survived, and the widows of the would-be rescuers sued the truck driver’s employer.199 The suit was upheld on the theory that the driver’s negligent action caused the would-be rescuers’ deaths.200 2. Common Law Jurisdictions Generally, in common law jurisdictions a Good Samaritan, once having acted, is required to carry out the rescue effort reasonably or without gross negligence where a Good Samaritan statute applies; otherwise, the rescuer risks liability to the “victim.”201 Actions by Good Samaritans against their “victims”

193. Id. at 81. 194. See Tunc, supra note 163, at 51-52. 195. Id. at 52. 196. Id. at 52-53. 197. Id. 198. Id. 199. Id. 200. Id. at 53. At common law the action would probably be barred by either assumption of risk or novus actus interveniens. Id. 201. See Robinson, supra note 39, at 638-39; David C. Biggs, “The Good Samaritan is Packing”: An Overview of the Broadened Duty to Aid Your Fellowman, with The Modern Desire to Possess Concealed Weapons, 22 U. DAYTON L. REV. 226, 228 (1997).

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may fail because of the doctrine of assumption of the risk: because they act voluntarily, Good Samaritans also voluntarily assume the risk of any harm to themselves or to others.202 This reasoning applies irrespective of the rescue victim’s fault in coming to the predicament.203 D. Good Samaritan Immunity Although statutory immunity for Good Samaritans differs between civil law and common law jurisdictions, with no statutory immunity in the former and uniform immunity in the latter, Good Samaritans are generally protected in both. 1. Civil Law Jurisdictions There is no particular code provision for Good Samaritan immunity in civil law jurisdictions. Nonetheless, courts generally protect Good Samaritans by applying a “totality of the circumstances” test.204 In France, for example, what might often be negligence in other circumstances is excused given the urgency of the situation requiring rescue.205 Similar results may well be expected in other civil law countries. 2. Common Law Jurisdictions Every jurisdiction in the United States has a Good Samaritan statute.206 III. ANALYSIS

Can, and should, the European and civil law response to the “problem” of the Good Samaritan be adopted in American common law jurisdictions? And if so, wholesale or only in part? The issues raised by these questions are the subject of this section.

202. One example of this position is the fireman’s rule. See RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 352-53 (7th ed. 2000). 203. See supra notes 201-02. 204. See, e.g., Tunc, supra note 163, at 50-51. 205. See id. 206. Stewart, supra note 54, at 388 n.9. For a review of many of these statutes, see generally Note, Good Samaritans and Liability for Medical Malpractice, 64 COLUM. L. REV. 1301 (1964).

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110 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 A. Considerations from Psychology A foundation of tort law is the reasonable person standard. This standard works well because society and its constituents justifiably expect that human beings have an intuitive rationality and act in ways consistent with that rationality. Therefore, we have no qualms about requiring all people to act reasonably in whatever they do, and we expect them to remedy the harm they have caused if they should fail to act reasonably. If duties to rescue are like any other legal duty, the same analysis should apply. But the bystander contemplating whether to be a Good Samaritan is no more likely to conduct a Carroll Towing207 analysis than any other actor. In fact, the bystander is probably in the worst position possible to make any rational analysis. The emotions of the bystander who wishes to intercede but remains undecided do not foster clear and reasonable thinking. Immediately upon witnessing an accident or violent crime, the would-be Good Samaritan experiences: first, the intense emotional shock — characterized predominantly, but not exclusively, by anxiety; second, the cognitive perception and awareness of what has happened; third, an inertial paralysis of reaction, which as a non-act becomes in fact an act, and fourth, the selfawareness of one’s own shock anxiety, non-involvement which is followed by a sense of guilt and intra-psychic and social self-justification.208 How can anyone be called upon to act reasonably if this is the mental state to be expected from the average person suddenly given the chance to play the role of the Good Samaritan? The extreme anxiety that often besets bystanders would argue for a less stringent duty than that imposed by the reasonable person standard. The form of that relaxed duty ought to be influenced by sociology and psychology, which disciplines have made considerable strides in analyzing human behavior in the context of altruism.209 Although care is needed when applying sociological

207. United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). 208. Lawrence Zelic Freedman, No Response to the Cry for Help, in GOOD SAMARITAN, supra note 7, at 175. 209. For research on altruism and human behavior, see generally GENETIC

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research to the study of legal issues,210 research data from nonlegal disciplines in support of the following propositions may prove helpful in determining the proper scope of any duty to rescue. 1. Persons Are More Willing to Lend Assistance When They Believe That Victims Are Not Responsible for Their Own Predicament211 Even without social research, this conclusion should not surprise any student of humanity. If one of the maxims of justice is to render to each person that person’s due (jus),212 then in a crude, but not uncommon, calculus, the bystander who watches the drunk fall into a ditch, the workman who observes the disobedient child get into trouble,213 or the man who sees his sonin-law tumble into a river214 will conclude that the victim is not due anything but what he actually received. Consistent with this observation, duty-to-rescue statutes, to reflect existing social conditions, should not require substantial affirmative bystander conduct when the victim appears to be the cause of his own peril. Interestingly, none of the civil law jurisdictions’ statutes analyzed above makes allowance for the origin of the victim’s distress in constructing the duty. This failure of indulgence, so to speak, relates to these statutes’ justification: If we wish to make people better, or at least force them to act in ways consistent with those of good people, we undercut our goal by making allowances for the morally deficient. AND CULTURAL EVOLUTION OF COOPERATION (Peter Hammerstein ed., 2003); ALEXANDER J. FIELD, ALTRUISTICALLY INCLINED? (2001); NANCY EISENBERG, ALTRUISTIC EMOTION, COGNITION, AND BEHAVIOR (1986); MICHAEL SMITHSON, PAUL R. AMATO & PHILIP PEARCE, DIMENSIONS OF HELPING BEHAVIOR (1983);

Jane Piliavin, et al., Responsive Bystanders: The Process of Intervention, in COOPERATION AND HELPING BEHAVIOR (Valerian J. Derlega & Janusz Grzelak eds., 1982); THE DEVELOPMENT OF PROSOCIAL BEHAVIOR (Nancy Eisenberg ed., 1982); DANIEL BATSON, THE ALTRUISM QUESTION (1981); JANE ALLYN PILIAVIN, ET AL., EMERGENCY INTERVENTION (1981). 210. To illustrate the point: it has been shown that women are more likely to offer assistance than men. See Note, The Duty to Rescue in Tort Law: Implications of Research on Altruism, 55 IND. L.J. 551, 552 n.3 (1980). Does it then follow that women should be held to a higher standard than men in failure-to-rescue prosecutions? 211. Id. at 554. 212. See supra note 4. 213. See generally Buch v. Amory Mfg., 44 A. 809 (N.H. 1898), discussed supra at text accompanying notes 37-38. 214. See supra text accompanying note 93-94.

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112 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 2. Persons Are Much Less Likely to Lend Assistance When They Are Among a Group of People Present at the Scene This phenomenon has been explained as the “bystander effect”: Responsibility for affirmative conduct is perceived as diffused among all present; fear of being reproved by others or of impeding a better rescuer discourages rescue activity from In light of the individuals within a bystander group.215 implications derived from bystander-effect research for predicting human conduct in emergency situations, statutes run the risk of ineffectiveness if they require substantial affirmative conduct from any particular bystander when a crowd is present at the scene of an emergency or crime. To avoid the undesirable results of the bystander effect, duty-to-rescue laws should require notification of authorities or other actions that can be done without the actors needing to dissociate themselves from the group. These limited duties would produce optimal results in that their fulfillment would likely materially assist the victim, but the duties would not require an “anticipatory” Good Samaritan to

215. See SHELEFF, supra note 175, at 14-23. Sheleff describes a multi-step cognitive process. First, the bystander must notice the event and then realize that a crisis exists which demands his response. Id. at 14. At this point the bystander effect thwarts most potential Good Samaritans: people generally ignore the hallmarks of an emergency, tending not to acknowledge the existence of a dangerous situation. Id. at 14-15. Second, the bystander who recognizes the dangerous situation must then decide whether he can attribute personal responsibility to the crisis. Id. at 15. At this point the “avoidance-avoidance” phenomenon emerges: the bystander is fearful not to intervene but is also fearful to intervene if his intervention proves unnecessary or unhelpful and he thereby humiliates himself before the group. Id. at 16. Third and last, the bystander, eager to intervene, must hit upon a means of intervention and then decide whether he can carry it out. Id. at 17. Even assuming that the would-be Good Samaritan bystander can successfully navigate through these mental obstacles, other psychological phenomena also militate against bystander intervention. The “difficult versus easy escape” conundrum exists where the potential rescuer must decide if he can render help and then “disengage” from the scene without extensive commitment; if he cannot, he will be less likely to intervene in the first place. Id. at 20. The “boomerang effect” describes the phenomenon of a potential bystander who, although originally altruistically directed, decides not to intervene for fear that the rescue victim will take advantage of him. Id. at 22-23. Sheleff notes that most examples of bystander intervention are simply types of vigilantism. Id. at 18. But for an endearing example of bystander altruism, see the actions of Mrs. Brown (in contrast to those of Mr. Brown) in MICHAEL BOND, A BEAR CALLED PADDINGTON 10-11 (1958).

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overcome the psychological obstacles attendant to the bystander effect. The civil law duty-to-rescue examples discussed above do not account for the bystander effect. 3. People Are More Likely to Lend Assistance When the Person in Need Is Perceived as Being “Dependent” on Another216 Obviously, parents will help their children, and a husband or wife will assist the other spouse. Existing law that enforces affirmative duties in special relationships is well-suited to prevailing social conditions,217 but insofar as both the civil law and common law have made allowances for such duties either in tort doctrine or in criminal statutes, duty-to-rescue provisions need not be specially tailored to address these circumstances. 4. Conclusion Depending on one’s theory of altruistic behavior, each of the psychological impediments to encouraging affirmative rescue conduct noted above can be overcome through the law’s power of definition and coercion. For example, the normative approach to altruistic behavior would advocate a legal duty to rescue because it would create a rule clarifying the ambiguities normally attendant to emergency situations, and this rule would thereby foster rescue efforts.218 The social exchange theory would also argue for a legal duty to rescue because a breach of that duty would impose upon the bad Samaritan a cost in the form of a fine, imprisonment or tort recovery. Because non-action would be made costlier than action, affirmative rescue conduct would be fostered.219 In contrast to the normative and social exchange theories, a socio-biologico-cultural theory would argue against a legal duty to rescue because any such duty would have little effect on behavior,220 but the theory’s opposition may be inconsequential inasmuch as the socio-biologico-cultural approach assumes that In human culture naturally fosters altruistic behavior.221 216. 217. 218. 219. 220. 221.

Note, supra note 210 at 552-53. See Biggs, supra note 201. Note, supra note 210 at 557. Id. at 558. Id. at 559. Id. For a sharply differing view, see GARRET HARDIN, THE LIMITS OF ALTRUISM 26-27 (1977). Hardin argues that pure altruism—a benevolent act

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114 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 summary, although duties to rescue are not completely at odds with human behavior, to be effective they must take into account various human inadequacies and fears. B. Historical Obstacles To what degree are duty-to-rescue statutes the product of authoritarian or totalitarian governments? To what degree do they represent an advance in the law’s development? The answer to these questions is found in part in history. Legally enforceable duties to rescue were first adopted in the aftermath of the Enlightenment as the European intelligentsia became enthralled with rationalism while the influence of Christian social and political thought waned.222 Nation, not religion, became the glue of society.223 In the twentieth century many European countries either adopted their first duty-to-rescue provisions or substantially strengthened existing statutes while under the sway of totalitarian regimes.224 That development is not surprising in light of the totalitarian state’s principles of criminality discussed above.225 As this history intimates, although an altruistic element is present in a bad Samaritan statute, merely because the idea behind the statute is good does not mean that the statute will produce good results. In modern-day Western European liberal democracies the state approvingly takes an active role in economic and social affairs, whereas in common law jurisdictions the state has not hitherto been conceded as substantial a role in the direction of those same activities.226 They may not strictly speaking run not caused by selfish motives—is possible only in small groups; the interests of the egoist, however, will always trump those of the altruist given a sufficiently large group of people. Id. 222. See W. Warren Wagar, Introduction, in THE SECULAR MIND: TRANSFORMATIONS OF FAITH IN MODERN EUROPE (W. Warren Wagar ed., 1982). 223. See, e.g., HILAIRE BELLOC, CHARLES I 23-24 (1933). The particular example cited is that of England at the close of the Tudor dynasty, but the same conclusion can be made of France during Richelieu’s time, and certainly of the German princes as well as the Austro-Hungarian empire with the reign of Joseph II. See id. at 84. 224. See Part I.B. 225. For this principle in Soviet law, see supra note 61. For the same principle in Nazi law, see supra note 41. 226. See, e.g., E. DAMSGAARD HANSEN, EUROPEAN ECONOMIC HISTORY: FROM MERCANTILISM TO MAASTRICHT AND BEYOND (2001). Hansen describes a

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definite shift to the Left by the 1950s in Europe and an accompanying preference for state intervention in the economy. Id. at 275-76. By the 1960s-1970s government intervention to regulate wages and prices was commonplace. Id. at 447. Concomitantly, Western European governments obtained a larger share of their nations’ GDP because of extensive welfare and social security policies. Id. at 431. Although Hansen concedes that in the 1970s a shift from Keynesian to supply-side economics occurred in several European economies, id. at 446-47, most jurisdictions had by that time wellestablished duty-to-rescue statutes. See e.g., Part II.A.1. State economic interventionism was made legitimate in no small way by the thought and writing of John Maynard Keynes, although to a degree Keynesian economics had been anticipated in post-World War I continental Europe. See Robert Campbell, The Keynesian Revolution 1920-1970 364, 390, in 5 FONTANA, ECONOMIC HISTORY OF EUROPE (Carlo M. Cipolla ed., 1977) [hereinafter FONTANA]. But by the second half of the twentieth century, the full effects of Keynesianism in Europe were plain in the statistics. During the 1920s, public-sector spending accounted for less than ten percent of Europe’s gross national product, and by the 1970s for one-third. Id. at 391. Keynes’s theories were purportedly developed in a world economy marked by less than full employment as well as an inequitable distribution of income. JOHN MAYNARD KEYNES, THE GENERAL THEORY OF EMPLOYMENT, INTEREST AND MONEY 372 (1935). Keynes conjectured that “measures for the redistribution of incomes in a way likely to raise the propensity to consume may prove positively favourable to the growth of capital.” Id. at 373. Keynes did not advocate state ownership of the means of production, so long as the state could determine how many resources should be allocated to any particular means and the appropriate rate of return for the means’ owners. Id. at 378. He did advocate—and this is critical for tracking the shift in European thinking as to the role of the state in everyday life—central controls to balance the propensity to consume with the inducement to invest. Id. at 379. Whilst, therefore, the enlargement of the functions of government involved in the task of adjusting to one another the propensity to consume and the inducement to invest, would seem to a nineteenth century publicist or a contemporary American financier to be a terrific encroachment on individualism, I defend it, on the contrary, both as the only practicable means of avoiding the destruction of existing economic forms in their entirety and as the condition of the successful functioning of individual initiative. Id. at 380 (emphasis added). The italicized portion makes my point that the logical relationship between a government more active in what previously had been the private economic sphere, and a law imposing obligations on conduct previously considered supererogatory and within the realm of private concern is obvious. Both represent an erosion of individual liberty in favor of a transfer of social responsibility to the government. This “take” on Keynesianism has been noted by the Europeans themselves. See Norbert Walter, Development of a New Economic Policy Paradigm in West Germany in the 80’s?, in KEYNES AND THE ECONOMIC POLICIES OF THE 1980S 175, 175-76 (Mario Baldassarri ed., 1992).

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For nearly two decades German economic policy followed a moderate Keynesian economic line. The general political acceptance of demand management policies was to a large degree due to their success in overcoming the 1966/67 recession, when Keynesian ideas or deficit spending were applied for the first time. . . . . . . [A]fter two decades of unprecedented growth, economic prosperity increasingly became taken for granted. Almost any call for government subsidies or grants was considered affordable. The welfare state grew substantially with more or less the full approval of all political parties and of the general public. . . . There was a general shift in attitude, away from a sense of individual responsibility towards a collectivist philosophy. With this change, the government came to be regarded as having allencompassing responsibility for social—and economic—objectives. Id. A similar expansion of government and social programs occurred in France. See Richard Arena & Christian Schmidt, Keynes before and after the General Theory: the theoretical contents of French economists’ reactions, 192969, in THE IMPACT OF KEYNES ON ECONOMICS IN THE 20TH CENTURY 73, 90-96 (Luigi Pasinetti & Bertram Schefold eds., 1999) [hereinafter IMPACT OF KEYNES]. But see Piero Bini & Antonio Magliulo, Keynesianism in Italy Before and After the General Theory, in IMPACT OF KEYNES 131, 131. Keynes, or Keynes’s dummy, was in evidence everywhere. He could be given any position. Liberals could delude themselves that by his merit liberalism had not faded away. Catholics had named him patron of their perennial instincts for compromise, fusion or confusion of opposing demands, and manipulation of power. Socialists appreciated his anti-bourgeois and statist traits. The elderly believed they were rejuvenated. The young found reason to mock the old. Id. (quoting SERGIO RICOSSA, I FUOCHISTI DELLA VAPORIERA. GLI ECONOMISTI DEL CONSENSO 43 (Nuova ed., 1978)). Needless to say, there has been a substantial anti-Keynes reaction. See, e.g., Walter Eltis, Has the Reaction Against Keynesian Policy Gone Too Far?, in IMPACT OF KEYNES 51. Foremost among Keynes’s critics was his intellectual rival and friend, the Austrian-born, English-educated and sometimes-American resident F.A. Hayek. For Hayek, Keynes’s fundamental error was his assumption that general employment always positively correlates with aggregate demand for consumer goods, when in fact, argued Hayek, demand for goods is not demand for labor. F.A. Hayak, Contra Keynes and Cambridge, in 9 COLLECTED WORKS OF F.A. HAYEK 249 (Bruce Caldwell ed., U. of Chi. Press 1995). Hayek dismissed the General Theory as a “tract for the times.” F.A. HAYEK, A TIGER BY THE TAIL 100 (Sudha R. Shenoy ed., Institute of Economic Affairs 1972). He contended that Keynes erred in positing the existence of “full unemployment” (i.e., the constant presence of unused factors and commodities). See id. at 102-03. To have full employment in a Keynesian sense requires that all goods be in a state of excess in which the price system is redundant. Id. at 103. But what is the price system if not a quantification of aggregate individual preferences—the actions and wants of rational persons acting freely? See id. Thus, the spirit

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command or socialist economies, but Western European democracies, which almost without exception impose legal duties to rescue, have adopted the welfare state without reservation.227 As a result, charity is no longer seen as the exclusive job of the churches or private activity; rather, citizens look to the state to provide for their needs. The opposite is true, if not in fact then in spirit, in common law jurisdictions, especially in the United States. The less active government is the better,228 and the of Keynesianism is akin to the spirit enlivening the movement for imposing duties to rescue. In a somewhat halfhearted concession, Hayek noted that Keynes was “so many-sided that for his estimate as a man it seemed almost irrelevant that one thought his economics to be both false and dangerous.” See id. at 104. For a view that all this is simply bickering at the margins, see HILAIRE BELLOC, THE SERVILE STATE 121-25, 199-200 (1913), in which Belloc argues that because capitalism is an inherently unstable system, all capitalist countries must eventually become communist, servile or distributivist states. Id. Belloc thought that England and Europe were headed toward servility. Id. I take Belloc to mean that one cannot infer anything enduring about a culture from its capitalist structure. 227. For an overview of welfarism in Western Europe, see Ian Gough, Welfare Regimes in East Asia and Europe Compared, in NEW SOCIAL POLICY AGENDAS FOR EUROPE AND ASIA: CHALLENGES, EXPERIENCE, AND LESSONS 27, 29-30 (Katherine Marshall & Olivier Butzbach eds., 2003). Gough identifies four variants of the welfare state: (1) the liberal, marked by little labor regulation and few government benefits; (2) the social democratic, which typically requires high government expenditure; (3) the continental, as developed in Germany, Austria and France; and (4) the southern continental, unique in its emphasis on income transfer and extensive labor market regulation. Id. For a tour d’horizon of twentieth-century European planned economics, see Benjamin Ward, National Economic Planning and Policies in Twentieth Century Europe 1920-1970, in 5 FONTANA, supra note 226, at 698-99, 722-23 (discussing planned economies in Czarist and Soviet Russia, the Netherlands, Scandinavia and Yugoslavia, French nationalizations and welfare-state econometrics). For history specific to the Lowlands, see Johan De Vries, Benelux 1920-1970, in 6 FONTANA, supra note 113, at 1, 30-42; for France, see Claude Fohlen, France 1920-1970, in 6 FONTANA, supra note 226, at 92-100 (discussing French nationalizations, social security and the planiste economic program); for Italy, see Sergio Ricossa, Italy 1920-1970, in 6 FONTANA, supra note 226, at 266; for the Scandinavian countries, see Lennart Jorberg & Olle Krantz, Scandinavia 1914-1970, in 6 FONTANA, supra note 226, at 377, 44043; for Spain and its period of liberalization followed by economic “stablisation,” see Josep Fontana & Jordi Nadal, Spain 1914-1970, in 6 FONTANA, supra note 226, at 460, 525. 228. Cf. JOSEPH LOCONTE, GOD, GOVERNMENT AND THE GOOD SAMARITAN: THE PROMISE AND THE PERIL OF THE PRESIDENT’S FAITH-BASED AGENDA 63 (2001) (“Americans increasingly believe that the surest road to moral and

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118 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 encouragement of private charitable efforts is considered a proper role for government.229 When viewed through the lens of charity, the possible incommensurability of European-type duties to rescue with common law jurisprudence emerges. Isn’t an enforceable duty to rescue a form of forced charity? Admittedly, the charitable aspects of an easy rescue are well hidden, for the benefit the victim receives is potentially tremendous (i.e., one’s life), and the cost incurred to the Samaritan is usually minimal (e.g., tendering a pole to one’s drowning son-in-law). But at some point of abstraction we cannot fail to notice the somewhat uncanny resemblance between duties to rescue and the Marxist principle: “from each according to his ability, to each according to his needs[.]”230 It is obviously not a sufficient reason to refuse to adopt a duty to rescue simply because other non-democratic states social uplift is by way of Jerusalem, not the U.S. Department of Health and Human Services.”); State of the Union Address of President George W. Bush, February 2, 2005, http://www.c-span.org/executive/transcript.asp?cat= current_event&code=bush_admin&year=2005 (last visited Nov. 14, 2005) (“Our second great responsibility to our children and grandchildren is to honor and to pass along the values that sustain a free society. . . . Government is not the source of these values, but government should never undermine them.”). 229. America, at its best, is compassionate . . . . Where there is suffering, there is duty. Americans in need are not strangers, they are citizens, not problems, but priorities, and all of us are diminished when any are hopeless. Government has great responsibilities for public safety and public health, for civil rights and common schools. Yet compassion is the work of a nation, not just a government. Some needs and hurts are so deep they will only respond to a mentor’s touch or a pastor’s prayer. Church and charity, synagogue and mosque lend our communities their humanity, and they will have an honored place in our plans and in our laws. Many in our country do not know the pain of poverty, but we can listen to those who do. I can pledge our nation to a goal, “When we see that wounded traveler on the road to Jericho, we will not pass to the other side.” First Inaugural Address of President George W. Bush, Jan. 20, 2001, http://www.yale.edu/lawweb/avalon/presiden/inaug/gbush1.htm (last visited Nov. 14, 2005). See also LOCONTE, supra note 228, at 55. It is not without some significance that, in emphasizing the primary place of personal charity, the President referenced the Good Samaritan. See id. at 55 (quoting President George W. Bush at his inaugural: “I ask you to be citizens: citizens, not spectators . . . responsible citizens, building communities of service and a nation of character.”). 230. KARL MARX, CRITIQUE OF THE GOTHA PROGRAMME 10 (C.P. Dutt ed., Int’l Publishers 1938) (1875).

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have enacted similar provisions. All the unwanted trappings of the other society do not necessarily come along with one of its statutes. Totalitarian regimes have statutes against murder and theft, yet we do not hesitate to keep our own correlative laws. Yet the fact should give us pause that not until relatively recently in jurisprudential history has a legal system imposed a general duty to rescue, even though presumably the “need” for these duties has remained constant throughout time.231 And we should pause again when we notice that the adoption of these statutes was contemporaneous to the wave of fascist, communist, socialist and totalitarian theories of government sweeping throughout Europe. C. Ideological and Cultural Obstacles Commentators have argued that an enforceable duty to rescue conflicts with the individualistic or utilitarian thread running throughout the common law.232 These objections are generally answered either by reference to the harm principle or on some other equally utilitarian ground.233 For example, a pro-duty-torescue utilitarian would argue that it is reasonable to agree to the coercive power of criminal law sanctions because the cost incurred (e.g., a restriction on the license to do anything) is small compared to the gain to be had (e.g., freedom from others’ violent or otherwise injurious acts and, in the case of bad Samaritan laws, rescue).234 Of course not every utilitarian is an advocate for duties

231. One might even argue that the need for duties to rescue was greater in pre-modern times, before the advent of police forces and emergency medical services. 232. See, e.g., Charles O. Gregory, The Good Samaritan and the Bad: The Anglo-American Law, in GOOD SAMARITAN, supra note 51, at 23-27; Andrew Ashworth, The Scope of Criminal Liability for Omissions, 105 L.Q. REV. 424, 427-30 (1989); A.D. Woozley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 VA. L. REV. 1273, 1278, 1293-94 (1983); John Kleinig, Good Samaritanism, 5 PHIL. & PUB. AFF. 382, 400-07 (1976). But see MARY ANN GLENDON, RIGHTS TALK 82 (1991) (“In fact, there is nothing especially individualistic or Anglo-Saxon about the origins of the rule [of no duty to rescue, because a]ffirmative legal duties to come to the aid of another were unknown, not only in early English law, but to most other primitive legal systems.”). 233. Robert Justin Lipkin, Beyond Good Samaritans and Moral Monsters: An Individualistic Justification of the General Legal Duty to Rescue, 31 U.C.L.A. L. REV. 252, 279-82, 287-91 (1983). 234. Id. at 279-82.

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120 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 to rescue. Character utilitarians are strongly opposed to such duties; they argue that “forcing people to do good, even if there are some very clear cases where such a policy is justified, inhibits character development, restricts the scope of individuality, opens the door to arbitrariness and unfairness, and should not be The pro-duty imposed without significant social gain.”235 utilitarian view also can justify the duty’s appearance in tort law. Persons agree to act reasonably because they wish to avoid the consequences of other persons’ negligent acts. This logic in turn arguably supports an enforceable duty of easy rescue because the cost incurred by an easy rescue is slight compared to the value of the life that may be saved.236 Just as the utilitarians are not in universal agreement as to the propriety of legally enforceable duties to rescue, neither are the civilians. One European scholar argues that, in light of modern emergency services, it is in fact counter-productive to require citizen rescues given the risks involved. The better policy is to require citizens to contact the authorities and no more.237 Surprisingly, in France the number of convictions under its bad Samaritan statute has increased sharply in recent years despite the advent of the Service Aide Medicale d’Urgence (SAMU), the French equivalent of 911 emergency medical services.238 Dispute among civil law experts as to the appropriateness of bad Samaritan statutes is no doubt due in some measure to the revulsion that some civil law commentators, imbued with the old liberal ideal of the autonomistic human being, voiced when dutyto-rescue statutes were first proposed.239 The common law’s repugnance to forced charity also speaks against a wholesale importation of civil law duties to rescue. Anglo-American jurisprudence is individualistic because common law countries’ cultures tend toward individualism.240 Community 235. Ellin, supra note 36, at 234. 236. A possible compromise solution is a national insurance program for Good Samaritan rescue expenses modeled after maritime salvage, where one might obtain the same result that duty-to-rescue statutes are meant to produce but without the direct restriction on individual freedom. See Dawson, supra note 7, at 87. 237. Cadoppi, supra note 12, at 123. 238. Tomlinson, supra note 43, at 493-94. 239. See Cadoppi, supra note 12, at 99 n.14, 102 n.24, 103 n.27. 240. A variation of this thinking can be found in Max Weber, who argued

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action is encouraged mainly only in the private sphere.241 Government is not seen as a good in itself but as a necessary evil; the less government needs to act and does act, the better.242 This cultural antipathy toward government is not present in those European jurisdictions having duties to rescue. To the contrary, the state traditionally has been viewed there as properly active. Whether the state be an absolutist monarchy, socialist regime or parliamentary democracy, government is granted a wide swath of action, including functions traditionally considered in countries of the Anglo-American tradition as charitable.243 Thus, in civil law countries citizens are more prepared to accept state-enforced pity, in the form of social welfare programs, and state-enforced beneficence, exemplified by duties to rescue. D. Constitutional Obstacles Unconstitutional vagueness presents one significant obstacle to creating a duty to rescue sounding in criminal law in American jurisdictions. The Due Process Clause of the Fourteenth Amendment precludes the states from enacting penal statutes whose offenses are defined in such a manner that a citizen cannot reasonably know which activities are proscribed.244 A criminal

that the Calvinist Weltanschauung, which became in effect the secular mindset of the English and American capitalist, held poverty to be almost sinful because it intimated too much leisure, begging sinful because the result of slothfulness, and the spontaneous enjoyment of goods repugnant because an occasion of sin. MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 157-71 (Talcott Parsons trans., Schibner 1958). “Not leisure and enjoyment, but only activity serves to increase the glory of God.” Id. Extrapolating from this ethos to the example of the bad Samaritan, a society steeped in Weber-like individualism clearly will be averse to duties to rescue if for no other reason than a nagging subconscious judgment in the bystander that the victim either should help himself or, if he cannot, that he deserves his fate. See id. 241. See supra notes 228-29. 242. In this regard Madison’s counsel, “[i]f men were angels government, no government would be necessary,” THE FEDERALIST NO. 51 337 (James Madison) (Sherman F. Mittell ed., 1937), and Jefferson’s apocryphal remark, “that government is best which governs least,” strike a resonant chord. But see Timothy Sandefur, Liberal Originalism: A Past for the Future, 27 HARV. J.L. & PUB. POL’Y 489, 492 n.11 (2004) (crediting Thoreau with the phrase). 243. See supra note 226. 244. “It is established that a law fails to meet the requirements of the Due Process Clause if is it so vague and standardless that it leaves the public

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122 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 statute must not be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”245 No less a legal luminary than Supreme Court Justice Bushrod Washington, sitting as a circuit justice, concluded in United States v. Sharpe that criminal statutes must be plain to be valid. Sharpe involved the prosecution of three Frenchmen for instigating a revolt against the captain of a vessel. The statute creating the offense did not define the word “revolt,” which was an integral part of the charge. Addressing this issue, Mr. Justice Washington stated: If we resort to definitions given by philologists, they are so multifarious, and so different, that I cannot avoid feeling a natural repugnance, to selecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature; when, by making a different selection, it would be no crime at all, or certainly not the crime intended by the legislature. Laws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid.246 Questions of vagueness necessarily arise in prosecutions for failure to rescue. Even where the statute may be textually clear, not admitting of more than one interpretation, bad Samaritan statutes, especially as enforced in France, are a “loose cannon.”247 For example, although the French provision provides dispensation whenever a risk would be present to would-be Good Samaritans if they were to lend assistance, the courts have applied a “reasonableness” gloss to the language, such that fears and worries peculiar to a particular defendant are not exculpatory if not to be expected from a reasonable defendant in the same

uncertain as to the conduct it prohibits.” Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966), quoted in Chicago v. Morales, 527 U.S. 41, 56 (1999). “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939), quoted in Morales, 527 U.S. at 58. 245. Whitney v. California, 274 U.S. 357, 368 (1926); accord U.S. v. Brewer, 139 U.S. 278, 288 (1891). 246. 27 F. Cas. 1041, 1043 (C.C.D. Pa. 1815) (No. 16,264). 247. Tomlinson, supra note 43, at 457.

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circumstances.248 Moreover, bad Samaritan statutes always present the troublesome question of just how much danger must threaten the imperiled person before a duty to rescue will arise. One commentator dismisses this objection by arguing that what is presented to the courts is just a run-of-the-mill determination of But the objection runs deeper than the reasonableness.249 uncertainty of a reasonableness determination because it is fundamentally unfair to judge a person’s action with perfect hindsight when the situation in which that person was placed by a string of events over which the person had no control was so unsettling as to have seriously diminished the would-be Good And not only are we Samaritan’s perceptive faculties.250 confronted, in a bad Samaritan prosecution, with bystanders who were not psychologically “at their best,” but we also run right up against the profoundly American attitudes of “live and let live,” “keep to yourself” and “mind your own business” that find expression in our legal culture.251 There are few epithets more eagerly avoided in everyday life than that of “busybody”252 yet that is the very label would-be Good Samaritans risk, recognizing that turning an eye to another’s distress may no longer be considered good manners in a modern urban and individualistic society; it may in fact be a crime. Thus, the combination of a bad Samaritan statute’s textual ambiguity, coupled with this conflict between the purpose of the statute and an innate feature of the American mind, creates vagueness of a constitutional magnitude. E. Theoretical Obstacles Broad duties to rescue wreak havoc with traditional tort causation theory. The special relationship torts are the exception 248. See supra text accompanying notes 119-23. 249. Kleinig, supra note 232, at 402-03. 250. See supra Part III.A. 251. See FRANCIS H. BOHLEN, STUDIES IN THE LAW OF TORTS 294 (1926) (noting “the attitude of extreme individualism so typical of anglo-saxon legal thought”); FEINBERG, supra note 6, at 129. Cf. BOHLEN, supra, at 340-41 (commenting on common law courts’ conservatism). 252. The fear of being called a busybody no doubts plays a role in the bystander effect, see supra Part III.A.2., and surely influenced Professor Dawson in his article, Negotiorum Gestio: “The Altruistic Intermeddler.” See Dawson, supra note 7.

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124 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 that proves the rule, for the common law rule of no duty to rescue, although normally presented under the heading of torts, is more fittingly located under the heading of contract. In contract the aggrieved party need not show that the breaching party affirmatively harmed him. So long as the other party was required to act under the contract and failed so to act, the aggrieved party may sue for breach.253 Usually these contractual responsibilities involve affirmative duties that confer a benefit on the other party. When a plaintiff sues for breach of contract, he in effect is suing for a benefit which the defendant, by his failure to act, deprived the plaintiff. The special relationship between contracting parties is closely analogous to the special relationship between husband and wife or parent and child, and these are the kinds of special relationships wherein the common law courts have found a duty to rescue, the breach of which is actionable. The contract rationale which supports the common law duty to rescue can be applied equally aptly to the other recognized special relationship torts, as well as to the exceptions to the no duty-torescue rule.254 But the theory that supports, in civil law countries, tort recoveries for failure to rescue is not easily translated to common law jurisdictions because the notion of causation upon which the civil law theory is predicated is at odds with the common law principle of proximate causation. One respected commentator who has advocated a move to strict liability for torts in general objects to tort recoveries based on a failure to rescue for the very reason that causation in the traditional sense is lacking.255 Another

253. See generally RANDY E. BARNETT, CONTRACTS: CASES AND DOCTRINE 68-78 (2d ed. 1999); RESTATEMENT (SECOND) OF CONTRACTS § 347 (1981) (Measure of Damages in General). 254. E.g., voluntary assumption of duty, the duty from landowner to guest and, of course, contract. This contract-tort convergence does not include the tort law “creation of danger” test because that exception to the no-duty rule more closely hews to the conceptual framework underlying traditional tort doctrine, according to which harm is actionable if created by an unreasonable act. See e.g., RESTATEMENT (SECOND) OF TORTS § 283 (Conduct of a Reasonable [Person]: The Standard). One commentator has termed this type of tort as “pseudo-nonfeasance” to emphasize that it in fact is a type of misfeasance. See Theodore M. Benditt, Liability for Failing to Rescue, 1 L. & PHIL. 391, 401-02 (1982). 255. Richard Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 189-204 (1973).

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commentator notes that: The prevailing view seems to be that it is an attempt to rescue that is due — nothing less, but nothing more. We are outraged if a person stands by when he could help someone else at no risk to himself, but we are not outraged by the idea of his not compensating the victim. Notice, by way of contrast, that when one person intentionally or negligently harms another (by a “positive”) act, we are outraged by a denial of any obligation to compensate.256 Those who advocate a common law duty to rescue argue that the causation problem which the duty presents is not an insuperable obstacle to its adoption since the existing special relationship torts do not require positive causation, yet the law has been content with these limited affirmative duties.257 This answer to the causation problem ignores that “special relationship” torts are, conceptually speaking, contracts imposed by the state for various reasons. Because these torts rely on a contract causation analysis, and not a traditional proximate causation theory, the “special relationship” exception carries no weight in arguing for a broad duty to rescue in tort. Joel Feinberg has argued that negative causation theory can bridge the gap between common law causation theory and liability under bad Samaritan statutes.258 Feinberg expressly avoids the trap of framing the bad Samaritan causation analysis by reference to duty and right, obligation and charity. He instead creates a tertium quid, a “moral requirement,” which is neither a duty nor an obligation, “but . . . can be every bit as incumbent upon us.”259

256. Benditt, supra note 254, at 410. 257. Lipkin, supra note 233, at 267-69. In the same vein, another commentator has argued that a duty to rescue is especially appropriate because at the time of peril the contract values that would be vindicated without a duty to rescue are comparatively small in comparison to the tort values to be gained by imposing such a duty. See E.J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247, 272-77 (1980). 258. FEINBERG, supra note 6, at 159-63. 259. Id. at 162. Feinberg, in the following sentence, retreats somewhat from his anti-duty stance: “Alternatively . . . we can think of the requirements as duties derived from the not-so-special relationship of ‘common humanity.’” Id.

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126 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 Having crafted this supposed linchpin, and after having taken several dozen pages to debunk traditional opposition to bad Samaritan statutes, Feinberg asks us to follow him on trust: The rest of the argument for the ‘moral requirements’ of Samaritans must rest with intuition. It seems beyond question to me, as a matter both of critical morality and the morality that governs us here and now for better or worse, that a mere Samaritan is morally required to come to the aid of another party who is in dire peril of losing his life or suffering severe physical injury, if there is no person willing and able to effect the rescue who has a prior duty or obligation to the endangered party and can do so without help, and if the Samaritan has, and knows that he has, the ability and reasonable opportunity to do so without unreasonable risk, etc., to himself or to others.260 From this somewhat attenuated cri de coeur261 Feinberg concludes that bad Samaritan statutes can be “morally legitimate.”262 Feinberg errs in two ways, however. First, he misconceives the opposition. Most persons who object to duties to rescue do so while maintaining that it is morally incumbent upon the Samaritan to intervene. Feinberg does an admirable job of showing us that the bad Samaritan’s failure to act is immoral, but that is beside the point, for it is one thing to say “this act is immoral,” and quite another to say “there ought to be a law.” Second, Feinberg errs in his causation analysis by equating result with cause. Simply because one person is liable for the same quantum of damages that another person is liable for does not mean that the act by which the one incurred liability is identical to the other’s. Suppose a gourmand wishes to protect his He substantial collection of Veuve Clicquot-Ponsardin.263 therefore contracts with another to guard his house and its

260. Id. at 163. 261. I say attenuated because I count about a dozen conditions in the passage quoted that must be met before a duty to rescue will arise. 262. FEINBERG, supra note 6, at 163. 263. Let us assume that our gourmand keeps his Dom Perignon in a secure and undisclosed location.

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vitiferous treasure. A thief with good taste comes along while the guard is asleep on the job, manages successfully to steal the whole lot, and later consumes it with oysters. Now, the guard is liable in contract to the gourmand for the value of the spiritous beverages. The thief is liable in tort to the gourmand for the value of the same libations. The guard’s liability is equal to the thief’s in quantity, even though the former in no way “caused” the theft. The same is true of the bad Samaritan. The Priest and Levite who did not intervene to help the injured traveler might be liable for the man’s subsequent injuries. That is what Feinberg wants. Presumably the robbers would also be liable to the man. But have the Priest and Levite caused the harm? By no means; yet their liability in theory is quantitatively identical to the robbers’ liability. Feinberg’s causal error can also be analyzed with reference to the Classical maxims of justice. Feinberg would have the Priest and Levite liable in justice both under alienum non laedere and unicuique tribuere jus suum. The latter presupposes some preexisting duty, which for the sake of argument is posited. The former forbids one from causing harm; yet under Feinberg’s analysis, by failing to render to the injured traveler his jus, both the Priest and the Levite actually harmed the traveler in addition to failing to make good on their societal “moral requirement.” Thus for a single “act” they incur a type of double liability. To impose liability for a failure to rescue does not require the adoption of Feinberg’s theories; one need only expand the number of special relationships to include a “special relationship” between oneself and one’s “neighbor.” In this way a “social contract” to which all members of society are parties would impose a duty whose breach would be actionable just like any other contract. This result may not be desirable for policy reasons, but at least it would not require the abandonment of traditional concepts of causation. F. Philospohical Objections We may move beyond legal causation and address directly the philosophical complication in maintaining that the failure to

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128 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 rescue is the (or a) cause of the victim’s subsequent injuries.264 To hold that a bad Samaritan’s refrainment (i.e., failure to intervene when intervention is possible), makes the Samaritan a causal factor in the imperiled person’s danger requires that there exist some important distinction between the bad Samaritan who cannot help and would not help if called to, and the bad Samaritan who can help but refuses to help.265 The language of everyday speech does not consider refraining to be a causal factor in another’s harm. Suppose A is driving and falls asleep at the wheel and crashes into a parked car owned by B. Certainly B would have a cause of action against A in negligence, because A caused the harm. When asked what the set of necessary and sufficient causal elements of the harm is, B’s counsel will say: (1) A’s driving, including pressing the accelerator with his foot; and (2) A’s falling asleep. Note that B’s counsel will not add a third element, A’s failure to remove his foot from the accelerator, or A’s failure to refrain from failing asleep. These refrainments are not causally necessary to the harm.266 In the same way a bad Samaritan’s refrainment is not causally necessary to the imperiled person’s harm; it is necessary to the caused state of “failure to rescue,” but that is not the harm for which the bad Samaritan’s victim seeks compensation. To take the Good Samaritan Parable as a case in point, it is much more “natural” to maintain that the cause of the injured man’s suffering is neither the Priest nor the Levite, but instead the robbers. At most the Priest and Levite are the cause of the state of “non-assistance,” from which the victim’s injury might be the psychological torment suffered in watching the Priest and Levite go by without offering help. But the victim’s damages cannot include the wounds suffered at the hands of the robbers, or the suffering endured between the time of the Priest and Levite’s passing and the arrival of the Good Samaritan, because these

264. See Eric Mack, Bad Samaritanism and the Causation of Harm, 9 PHIL. & PUB. AFF. 230, 254-59 (1980). For a rebuttal to Mack, see FEINBERG, supra note 6, at 181-85. 265. Mack, supra note 264, at 255-56. Professor Feinberg argues that even if a bad Samaritan does not cause any harm to the “victim,” laws criminalizing bad Samaritanism are nonetheless legitimate. See FEINBERG, supra note 6, at 129. 266. For the original example, see Mack, supra note 264, at 258-59.

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wounds and suffering remain attributable to the acts of the robbers, notwithstanding the Priest and Levite’s failure to rescue.267 The civil law jurisdictions having duties to rescue that are enforceable in criminal law tacitly recognize the attenuated causal link between a bad Samaritan and the victim’s injuries by the penalties that these statutes provide. None of the European statutes treat the failure to act as a comissio per omissionem. If they did, then bad Samaritans who failed to assist when required to, whose victims subsequently died of their injuries and whose assistance would have produced a different result, would be held to have caused the victims’ deaths. This result is not obained because European jurisdictions with duty-to-rescue criminal provisions treat the offense as purely omissive (i.e., not resultoriented). If the European statutes recognize in criminal law the causal separation between the failure to act and subsequent injury, it is strange that this obstacle does not preclude, in France for example, the imposition of civil liability.268

267. At common law the inaction of the Priest and Levite would not be novus actus interveniens severing the erstwhile causal connection between the robbers and their victim’s suffering. See RESTATEMENT (SECOND) OF TORTS §§ 448 & 431 (1965). Section 448 provides: “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime . . . .” Section 431 states, in part, that to be a legal cause negligent conduct must be a substantial factor in bringing about the harm. I recognize that this section of the Restatement puts the case backwards, in that the bad Samaritan’s inaction follows earlier affirmative wrongdoing, but the principle behind the rule applies regardless of the order. See EPSTEIN, supra note 202, at 491-95. 268. These causation difficulties can be avoided by adopting a contract analysis, for the principle is well-established that if a failure to act is a breach of contract, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 235 (1981), the party in breach will generally be liable for all the foreseeable damages that would not have occurred had the party not breached. See, e.g., RESTATEMENT (SECOND) OF CONTRACT § 351 (1981). The classic case for this proposition is Hadley v. Baxendale, 156 Eng. Rep. 145 (Exch. 1854), in which the defendant argued that he was not responsible for the plaintiff’s lost profits on account of his breach of contract, because the lost profits were not a foreseeable result of the breach. Id. at 145-51. The Exchequer Court agreed, holding that the normal damages for breach of contract are those arising naturally from the breach, or which were contemplated by the parties in their contract. Id. at 151.

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130 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 G. Theological Objections One argument why anything but a minimal duty to rescue is a poor fit in the law is found in the Good Samaritan parable itself. The lawyer’s own answer to his question, “Who is my neighbor?”, was “The one who took pity on him.” The key to understanding Good Samaritanism is in the lawyer’s use of the word pity. Justice does not require pity. Pity takes up where justice leaves off. Pity is supererogatory. Pity belongs to the province of God, not of Caesar. The Good Samaritan parable explains the scope of the obligation of charity, not justice. The Priest and the Levite, in declining to help the injured traveler, transgressed the commandment to love one’s neighbor as one’s self. Although that commandment imposes a duty, it is a duty sounding in charity.269 I do not mean to imply that the aversion of Anglo-American jurisprudence to duties to rescue is rooted in a Christian notion of charity, but only that the undeniable individualistic or autonomistic strain that colors the common law is at least fortuitously commensurate with a Christian conception of charity. To determine whether the state should take a hand in the enforcement of charitable activity and therefore whether the law ought to enforce duties to rescue, we should have recourse to the history of Christian social teaching as implemented in the European private sector and, latterly, by European governments. In the early Church the aim of charity was not to right social wrongs but to awaken love in others and thereby bring them to God.270 Christians of the Apostolic and Patristic eras emphasized

269. See ST. THOMAS AQUINAS, 7 CATENA AUREA: COMMENTARY ON THE FOUR GOSPELS, COLLECTED OUT OF THE WORKS OF THE FATHERS 377 (John Henry Parker ed., Oxford 1841). CYRIL; After what has gone before, or Lord fitly questions the lawyer; Which of these three thinkest thou was neighbor to him who fell among thieves? But he said, He that shewed mercy on him. For neither the Priest nor Levite became neighbor to the sufferer, but he only who had compassion on him. For vain is the dignity of the Priesthood, and the knowledge of the Law, unless they are confirmed by good works. Id. Perhaps the reason for the Priest and Levite’s failure to help was their fear of ritual impurity, which might have resulted from touching the victim if he had been a Samaritan. The parable thus counsels the supremacy of the law of charity over the rabbinical laws of first-century Judaism. 270. ERNEST TROELTSCH, THE SOCIAL TEACHING OF THE CHRISTIAN

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the philanthropic and private aspects of charity and thus were of necessity limited to small-scale ventures with which government did not trouble itself.271 By the Middle Ages Christianity had arrived at a modus vivendi with the state: the Church conceded that charity cannot renew the world entirely and that some societal ills must be tolerated in the interests of the greater good.272 Nevertheless, the Church’s societal presence had a profound transformative effect on European culture. Personality and individuality were lauded as examples of the divine fecundity. A community of believers developed to serve socialistic ends without needing to abolish private property or remove incentives for wealth creation. Society rationalized and explained inequality by ascribing it to God’s will: if God allowed the rich and the poor to coexist, it was to foster among the former redemptive charitable impulses. Most importantly, the Christian ethos arguably nurtured an “active helpfulness,” “something which no social order—however just or rational—can dispense with entirely, because everywhere there will always remain suffering, distress, and sickness for which we cannot account—in a word, [the Christian ethos] produce[d] charity.”273 The pre-modern state took no hand in the “production of charity.” The modern welfare state, as a governmental charity producer, dominates the European continent and has supplanted the former charity producer, the Church.274 Post-Enlightenment Europe can be understood as a battle between the two Gelasian swords, a battle whose immediate victor undertook the responsibility of providing for the least of society and who became

CHURCHES 134 (Olive Wyon trans., 1931). 271. Id. at 135-36. 272. See id. at 303-04. Troeltsch hypothesizes that this “truce” came about because law was viewed as drawing its authority not from the sovereign but from the will of God as understood through human reason. See id. at 305-06. 273. Id. at 1004-05. 274. It was rather the decline of religion, the impact of Protestantism and the rise of the secular nation-state as a consequence of the ‘surrender’ of the Church to the state or as a result of the retreat of the Church into the “private realm”—that have governed welfare state development. KEES VAN KERSBERGEN, SOCIAL CAPITALISM 193-94 (1995).

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132 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 responsible for promoting charitable activity. This tremendous shift in the respective social roles of Church and State began in the wake of the Reformation.275 By the nineteenth century continental European society thought of charity not as an obligation but instead as a social right susceptible to legal enforcement.276 If charity is not strictly speaking within the domain of private initiative—if rather the charitable act is the fulfilment of a legal duty and not a supererogatory benevolence— then it was incumbent upon the state to support the charitable act by enforcing it.277 Consequently, the moral obligation to play the Good Samaritan, not to pass by the injured traveler, became in modern-day Europe a right of the injured traveler to require the Priest, the Levite and the Samaritan to intercede on his behalf lest the state should punish them and the injured “victim” seek compensation. As I have stressed above, this argument does not depend upon the premise that Christian social principles undergird AngloAmerican jurisprudence. The major premise of my position subsists in this: duties to rescue, as a form of legally enforceable charity, are incommensurable with juristic systems that seek to maintain a substantial sphere of liberty for the private individual. The minor premise: Anglo-American jurisprudence is marked by a keen effort to maintain a substantial sphere of liberty for the private individual. And the conclusion of my neat syllogism: legally enforceable duties to rescue are incompatible with Anglo275. I should make clear that I do not imply post hoc ergo propter hoc; I merely use the Reformation as a point of reference along the course of European history. 276. KERSBERGEN, supra note 274, at 196. Along these lines I am reminded of Chief Justice Marshall’s remark in Marbury v. Madison that a right requires a remedy. 1 U.S. (1 Cranch) 137, 162-63 (1803). But see FEINBERG, supra note 6, at 148-49 (arguing that, in the case of bad Samaritan statutes, a duty without a correlative right is conceptually acceptable). 277. Professor Feinberg adopts this view. See FEINBERG, supra note 6, at 130-31. I cannot disagree more strongly with his position as expressed in the text. He argues that a person who fails to help save a child from drowning is not just “moral slime”; he is an outlaw because he has violated the “child’s right to be saved.” Id. In contrast, I argue that the child has neither a legal nor a moral right to be saved; indeed, even to speak of “rights” in this context betrays a profound theoretical chasm between Feinberg and me. The wouldbe rescuer has a profound moral obligation to intervene. Professor Feinberg’s view in effect approves of the state supplanting the Church as fomenter of charity.

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American jurisprudence. Although continental European legal systems were not as strongly marked by the individualistic theme observable in the common law, nevertheless there was a European force that argued for a substantial sphere of individual of liberty for the private individual—the Church. Once the Church receded from its position of prominence and was replaced in its charitable aspects by the welfare state, the force that theretofore had maintained this sphere of liberty vanished. The state replaced it. As a consequence charity ceased to be an obligation and became instead a right. Charity moved from the private to the public sphere, from the province of the Church to the province of the State. Whether the identical process happened in common law countries is irrelevant, for there the Church was not the only force militating against a shrinking of the sphere of individual liberty; the common law itself served that purpose and continues to do so. Because it continues to do so, bad Samaritan laws are, on the whole, inappropriate to our legal system. IV. CONCLUSION

At the risk of merely contriving a legalistic deus ex machina to resolve the jurisprudentio-ethical quandary presented by the duty to rescue, I describe below what is in my opinion a possible solution to that problem. Clearly the common law is not so opposed to the notion of affirmative duties that it will not tolerate any statute enforcing a duty to rescue, for it already imposes affirmative duties, even among strangers in the case of an emergency-creator.278 Furthermore, the criminal law in common law countries enforces some affirmative duties which usually map to pre-existing common law duties: hit-and-run statutes are a good example; misprision of felony a somewhat antiquated one. These tort and criminal law special relationship duties demonstrate that Anglo-American jurisprudence is not at root opposed to an affirmative duty to rescue. The special relationship torts also reveal that, if we are to preserve legal causation in its traditional sense, any duty to rescue must harmonize with contract principles of bargain, duty and breach.279 I argue that as part of the social 278. See WILLIAM A. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 143 (1987). 279. See William A. Landes and Richard A. Posner, Salvors, Finders, Good

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134 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 contract, by accepting the benefits of community and government, each citizen assumes the duty to render a minimal degree of assistance to a person in grave distress.280 Although the extent of the duty for which I argue is quite small, given the duty’s social contract justification, a more substantial burden on the would-be Good Samaritan cannot be justified without some additional bond supporting the “special relationship” between rescuer and victim. A. An Acceptable Compromise—A Proposed Model Statute281 Based on the foregoing, the task is to find an appropriate compromise between the legitimate promotion of the common good and the preservation of individual freedom. This balance can be best struck by crafting a penal statute that requires notification of the authorities and nothing more.282 An example of such a statute Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. LEG. STUD. 83, 125 (1978). 280. I recognize that by extending the obligation to rescue to non-citizens who are not party to the social contract I go beyond my social contract justification, but not by much. The benefit to be gained by imposing the duty regardless of the identity of the victim far outweighs the benefit derived from the modicum of individual liberty preserved by limiting the duty to citizens. Besides, because citizenship is not determinable by appearances, rational Samaritans would not risk the chance of punishment on the gamble that the victim were a non-citizen. 281. For other model statutes, see, e.g., Lipkin, supra note 233, at 266; Wallace M. Rudolph, The Duty to Act: A Proposed Rule, in GOOD SAMARITAN, supra note 51, at 243; Rudzinski, supra note 79, at 123-24; Benditt, supra note 254, at 415. 282. Thus I disagree strongly with Professor Malm, who argues that a bad Samaritan statute enforcing only slight penalties is worse than no law at all. See Malm, supra note 36, at 215. Professor Malm contends that bad Samaritan statutes must be rigorously enforced with especially punitive punishments or they should be removed from the books. Id. at 228. She comes to this conclusion based upon her analysis of what bad Samaritan statutes are attempting to accomplish: they are supposed to serve deterrence, and they are to have a norm-enforcing or norm-creating effect. See id. at 22628. I agree with Professor Malm that bad Samaritan statutes ought to have a deterrent effect lest they become mere “feel good” laws. See id. at 226. I also agree partially with her second justification: that these statutes are meant to have a norm-enforcing value, see id. at 226, 228, but I part company with her in the way she quantifies the sufficient level of punishment for deterrent purposes. Certainly a punishment of one year’s imprisonment is less severe than a punishment of five years’ imprisonment, but I am sure that Professor Malm is not a partisan of the Hammurabi Code, and that she would not assent to truly draconian punishments for bad Samaritans, such as milliondollar fines or life imprisonment. What any bad Samaritan statute

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is the following: Duty to assist. (1) Whenever a person witnesses another person suffering from or in imminent danger of suffering from grave physical harm, the person shall immediately contact the local emergency response authorities or local law enforcement or both, as required by the circumstances as perceived by the person. (2) For the purposes of fulfilling the duty imposed by subsection (1), a promptly placed call to 911 shall always discharge the duty to assist. (3) Whether a person has discharged his duty under subsection (1) shall be determined irrespective of any harm suffered by the person whose suffering or then-imminent suffering gave rise to the duty to assist. (4) It shall be a defense to a prosecution brought under subsection (1) that the defendant actually believed, however unreasonably, that the person was not suffering from or in imminent danger of suffering from grave physical harm. (5) It shall be a defense to a prosecution brought under subsection (1) that the defendant made a good faith effort to contact the local emergency response authorities or local law enforcement or both and was unable to reach either or both due to circumstances beyond the defendant’s control. (6) The penalty for violation of subsection (1) shall be a fine not exceeding $X or the fulfillment of Y hours of court-ordered community service or both. (7) This section shall not create nor form any part of any private cause of action. (8) This section shall not prejudice, alter or in any way change the present state of the law as it relates to private causes of action that any party had prior to this section’s adoption or would have now or in the future were this section not to exist.

accomplishes that cannot be done in the absence of the statute is the imposition of the social opprobrium that accompanies a criminal conviction. Professor Malm also refers to the argument that failing to create duties to rescue is tantamount to a societal declaration that the life of the person who is in need of rescue is worthless. Id. at 217. Ellin offers the rejoinder that opposition to bad Samaritan statutes says nothing about what the potential Good Samaritan’s opinion is of the person whom he may help; the absence of the legal duty simply means that society believes the burden of rescue should fall elsewhere. Ellin, supra note 36, at 241.

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136 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 Gloss and Rationale The model statute answers the societal call for the protection of the common good but also gives due deference to the legitimate concerns for the maintenance of individual liberty, theoretical consistency in tort law and constitutional objections to vagueness. The model statute incorporates the civil law precedent for permitting notification of authorities to fulfill the duty to rescue without falling into the quagmire of determining just how much personal action is enough to satisfy the duty or whether a particularly timid or impressionable defendant should be held to answer for his social weakness. The statute adopts the position that the only proper place for a modern duty to rescue is a penal statute requiring notification of authorities under limited circumstances. In this respect the model statute is consistent with the few existing American examples, but the statute goes considerably beyond these in accounting for the civilian experience and constructing the duty in light of the myriad social, cultural, historical, philosophical and theological factors discussed above. Subsection (1) imposes a duty to assist only when a person actually observes another requiring assistance. This element precludes the unfortunate French practice of holding persons accountable who were not present at the scene, a result that is also possible under the Wisconsin and Vermont statutes. Of course persons may still have a strong moral obligation to assist even though they be not present at the scene; but lines must be drawn, and it has been thought preferable here to err on the opposite side of the line drawn by the French courts. The duty arises only when the imperiled victim is observed by the would-be rescuer to be suffering from or in imminent danger of suffering from grave physical harm. This language precludes conviction when the danger would come about in a week’s time; it also precludes conviction when the relevant harm is neither physical nor grave. Consequently, one cannot be convicted for having failed to assist when the harm is to property. This language thus avoids the German statute’s textual broadness. Subsection (1) also adopts the Hawaiian precedent of requiring only notification of authorities. It completely omits references to personal intervention and thereby precludes the French practice, exemplified by the father-in-law case, of

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convicting the bad Samaritan notwithstanding his notification of the authorities. The phrasing of the model statute is broad enough, however, to permit conviction when the defendant called the police but knew that he ought to have called the paramedics, or vice versa. Moreover, the phrasing normally would permit conviction when the defendant contacted a non-emergency government authority, knowing that such a response was inappropriate under the circumstances. Subsection (2) merely makes explicit the obvious, namely, calling 911 where available is the simplest and most natural response of the citizenry, and therefore is appropriately supported by the criminal law. The statute’s safe-harbor is a considerable advance over both the civilian and common law jurisdictions’ provisions because it defines precisely what the law will affirmatively require of a bystander. Subsection (3) makes clear that violation of subsection (1) is a purely omissive offense in no way tied to any other harm. In this manner the causal difficulties rampant in civil law jurisdictions are avoided. Subsection (4) provides an affirmative defense to avoid the French practice as observed in the case of the peasants convicted of failing to assist when the victim was thought by them to be a burglar. Granted that the allowance made for the defendant’s intentions is broad, perhaps too broad for most, nevertheless the protection afforded the timid but not malevolent bad Samaritan seems justified. Subsection (5) provides an affirmative defense to ensure that the defendant need not be successful in his attempt to assist. This provision follows the civil law precedents. Subsection (6) breaks with European practice by not affording the sentencing judge the option of imprisonment. The amount of the fine is left to the good sense of the adopting jurisdiction; perhaps an exceptionally high fine might be warranted in cases were the defendant’s failure is especially egregious. But in all cases the sentencing judge should make due allowance for the peculiar diffidence or pusillanimity of the defendant. As for the community service requirement, it may appear inapt that the statute should punish with forced charity, but as the principle of mandated community service is now well established in penal law, its inclusion here has not been thought inappropriate.

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138 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 Subsection (7) completely avoids the French and German practice of affording private remedies to those “injured” by the bad Samaritan. This decision has been motivated mainly by the concerns already discussed of theoretical difficulties in causation as applied to torts at common law. It also avoids the practice of allowing Good Samaritans to recover against their “victims.” Subsection (8) ensures that the statute will not affect existing common law as it has developed to allow private causes of action for failures to act under certain circumstances. The statute’s rationale is based upon the prevalence of cellular phones and the well-established and efficient emergency response services found throughout the country. The citizenry generally has the former, and has become accustomed to using (or at least aware of) the latter. The model statute thus builds upon this social condition. The statute, it is hoped, will be more than a feel-good law, and afford sufficient protection to individual liberty and idiosyncratic defendants. B. Value of the Civil Law—Common Law Comparison A comparison between civil law and common law jurisprudence produces three benefits: it provides fodder for legal reform; it invites analytical assistance from other disciplines; and it emphasizes cultural differences otherwise unnoticed. The comparative analysis is particularly useful in the area of bad Samaritan statutes, as nearly every European jurisdiction has a legally enforceable duty to rescue, whereas only five American jurisdictions have any legal duty to rescue, and even for these states, the punishment for being a bad Samaritan is slight. The jurisprudential differences between the two legal systems reveal a profound social and cultural chasm between Europe and America that cautions against any wholesale adoption of legal theory by one system from the other. 1. Legal Reform Anglo-American commentators, since the time of Bentham,283 have argued for affirmative duties at common law, especially for the duty of easy rescue. Many scholars have proposed model

283.

See supra note 35.

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statutes along these lines, based in part on European provisions.284 Unquestionably, the common law’s adherence to the “no duty” theory has become attenuated in today’s society of urbanization, telecommunication and professional emergency services.285 Moreover, the common sensibilities of the American A legally people clearly favor some enforceable duty.286 enforceable duty that requires notification of authorities in limited circumstances is well-suited to the times and is a fair response to As the product of the modern European commentators.287 comparative law research, the proposed law provides a double benefit: it capitalizes on the experience of other jurisdictions, and it rejects what is incompatible with the American spirit. 2. Interdiciplinary Research It is a reasonable assumption that the number of bad Samaritans in any particular country does not vary greatly from the number of bad Samaritans in any other country. If that is true, then the existence of legally enforceable duties to rescue in civil law jurisdictions cannot be explained solely on deterrent grounds; these duties must have some additional purpose. Until the twentieth century, most Western nations left the duty to rescue to morality. The sanction of social opprobrium and the eternal consequences of sin were considered deterrent enough. Since that time many European countries have enacted duty-torescue statutes to remedy the law’s “insufficiency.” The overwhelming majority of common law jurisdictions has retained the old attitude of leaving the matter to morality. I have argued that this split between the civil law and the common law represents a significant cultural difference between Europe and America that, if existent before the twentieth century, was not

284. See supra notes 232, 281. 285. The relatively late appearance of enforceable duties to rescue may be due to the effectiveness of reciprocal altruism in encouraging Good Samaritanism in pre-urban societies (i.e., the rescuer acts because he wants the victim to perform the same service should the rescuer need it). See William M. Landes & Richard A. Posner, Altruism in Law and Economics, 68 AM. ECON. REV. 417, 420 (1978). 286. GLENDON, supra note 232, at 78, 80-81. “In recent years . . . uneasiness with the no-duty-to-rescue rule has grown.” Id. at 88. 287. See, e.g., Cadoppi, supra note 12, at 123.

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140 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:77 obvious until now. The European looks to the state as a source of moral precepts and civic duties, the first enforcer and source of charity.288 In America private initiative is still lauded and considered the primary and best source of charitable activity.289 Thus, the bad Samaritan statute comparison reveals a difference in mentalité290 between the European and the American concerning the role and nature of the state in modern life. 3. Cultural Enrichment Bad Samaritan comparative research also produces a greater awareness of the theories supporting contract and tort at common law. The causation problem as it relates to duties to rescue291 is significant, for it demonstrates the civil law’s willingness to discard the but-for causation theory for a much more inclusive but less rigorous concept of responsibility causation.292 The adoption of the European approach in common law jurisdictions would require a deep-rooted transformation of the common law sense of causation. As is always the case with bad Samaritans, their “refraining” is in no sense a causal factor in the harm of the “victim,”293 but the requirement that the act be a causal factor in the harm is central to common law torts.294 One commentator answers this objection by citing the various “special relationship” exceptions in American tort law to the general absence of a duty to rescue.295 The common law courts permit recovery here, even though but-for causation is absent. As I have stated earlier,296 making a theoretical differentiation between contract and tort parries this rejoinder. The special relationship torts at common law must be understood through the lense of contract: owing to a pre-existing relationship

288. See, e.g., Walter, supra note 226. 289. See supra notes 228-29. 290. Legrand, Against a European Civil Code, supra note 13, at 45. 291. See supra Part III.E. 292. See, e.g., Tunc, supra note 163, at 45-46; Ashworth, supra note 232, at 431-33. 293. Mack, supra note 264, at 259. 294. See G. EDWARD WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY 92-102 (1985) (reviewing the various causation theories, including proximate cause, last wrongdoer, natural consequence and the Palsgraf test). 295. Lipkin, supra note 233, at 268-69. 296. See supra Part III.E.

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that society deems especially important (e.g., husband and wife, parent and child, employer and employee), the law will impose a quasi-contract upon the parties to act affirmatively in certain circumstances, including when the other party to the relationship is in danger. Although the special relationship torts are not treated in the books explicitly in this fashion, I believe that they are best comprehended by a contract analysis, and in that way they harmonize better with the common law system. And, if one will concede the affinity between special relationship torts and contract theory, the causation problem disappears, for recovery by the injured party can be based upon a breach of contract which will lie even in the absence of affirmative wrongdoing. Nonfeasance thus may be actionable. C. Conclusion Absent substantial theoretical revision, the common law will not support a general duty to rescue; but a minimal duty to inform the authorities in an emergency, enforceable only in the criminal law, is consistent with the ethos of Anglo-American jurisprudence. The model statute discussed above describes such a duty. A more far-reaching duty would create considerable theoretical and practical problems. And for the egregious cases of bad Samaritanism that the statute does not cover, one must leave the enforcement to “Him who searches the heart.”297

297.

Minor, supra note 5, at 431.

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On Teaching Neo-Darwinism In Public Schools: Avoiding the Pall of Orthodoxy and the Threat of Establishment L. Scott Smith*

I. INTRODUCTION

A. Culture And Creation Myths Every culture has its own creation story. Each story, generally speaking, offers a perspective on the world and its history and attempts to shed light on how we are to understand the purpose of human life and of our relationships to nature and to one another. Whether the story is about Yahweh or Elohim in Jewish and Christian traditions, Kanáti and Selu in Cherokee myth, or Pan Gu and Nü Wa in Chinese lore, there are distinct threads of commonality running throughout them.1 There is, most significantly, a character of “beginningness” that is foundational in the storyteller’s and listener’s mindset, setting the stage for all that has, or will ever, come to pass in the world. Theologians frequently refer to this quality as “ultimacy”2 and emphasize that * B.A., University of Texas (Austin); M.Div., Austin Presbyterian Theological Seminary; Ph.D., Columbia University (New York); J.D., Texas Tech University. This study is dedicated to the late Dr. James L. Barnard, Sr., of Corpus Christi, Texas, a physician who embodied the best of faith and science. 1. See Bruce Railsback, Creation Stories from around the World: Encapsulations of Some Traditional Stories Explaining the Origin of the Earth, its Life, and its Peoples, July 2000 (4th ed.), http://www.gly.uga.edu/railsback/CS/CSIndex.html. 2. For an example of the way a theologian interprets the notion of

143

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144 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 a creation story can never be divorced from its religious implications. Any creation story is religious insofar as it addresses the most fundamental issues concerning how we understand ourselves and others in a universal context. B. The Pre-Eminence of Darwin’s Idea Contemporary Western culture, for the past century and a half, has looked to Charles Darwin to explain the origin and development of life. His idea occupies a place of importance not unlike that of the creation myths of old. It first appeared in Darwin’s legendary work, On the Origin of Species,3 and was nothing less than a Copernican event. The idea of a biological continuum, produced by natural selection acting upon random mutations, shook – or, some might say, devastated – the foundations of nineteenth century Western thought. The conviction that the biosphere was crafted according to a purposeful plan succumbed, thanks or no thanks to Darwin, to the notion that such design is merely apparent and without purpose or direction. The shock waves emanating from this seismic intellectual shift continue to ripple across contemporary culture. Indeed, one recently sympathetic expositor of Darwin’s idea, in order to describe its power and influence, has employed another metaphor, referring to the idea as a “universal acid”4 too caustic for any cognitive container to hold. C. The Idea’s Religious Implications Darwin’s theory has, beyond any doubt, had deep and far“ultimacy” with a view to understanding symbols and myths, see PAUL TILLICH, DYNAMICS OF FAITH 41-54 (Harper Torchbook 1958) (1957). 3. CHARLES DARWIN, ON THE ORIGIN OF SPECIES (Harvard Univ. Press 1966) (1859) [hereinafter DARWIN]. See also CHARLES DARWIN, THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION, OR THE PRESERVATION OF FAVOURED RACES IN THE STRUGGLE FOR LIFE (6th ed. 1872), available at http://pages.britishlibrary.net/charles.darwin/texts/orign6th_fm.html [hereinafter DARWIN (6th ed.)]. 4. DANIEL C. DENNETT, DARWIN’S DANGEROUS IDEA 63 (Touchstone ed. 1996) (1995) [hereinafter DENNETT]. Dennett’s book constitutes a sustained encomium to Darwin’s idea. He writes, “Little did I realize that . . . I would encounter an idea – Darwin’s idea – bearing an unmistakable likeness to universal acid: it eats through just about every traditional concept, and leaves in its wake a revolutionized world-view, with most of the old landmarks still recognizable, but transformed in fundamental ways.” Id.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 145 reaching religious implications.5 Julian Huxley, grandson of “Darwin’s Bulldog”6 Thomas H. Huxley, saw these implications clearly and proclaimed to those assembled in Chicago at the 1959 centennial celebration of the initial publication of On the Origin of Species, both the death of God and of supernatural religion.7 William Provine, the distinguished professor of the history of biology at Cornell University, in a 1998 keynote address on Darwin Day at the University of Tennessee, stated, “‘evolution is the greatest engine of atheism ever invented.’”8 Provine elsewhere underscored the conflict between evolutionary biology and religion, insisting “[t]here are no gods and no designing forces that are rationally detectable [in nature],” and that those devotees of religion, who happen to accept evolutionary biology “‘have to check [their] brains at the church-house door.’”9

5. Michael Ruse declares that “Evolution was even promoted as a secular religion, an alternative to Christianity both intellectually and socially. . . . Darwinism is as value laden as a religion . . . [and] . . . is a religion of a secular kind.” Michael Ruse, On Behalf of the Fool, in DARWINISM, DESIGN, AND PUBLIC EDUCATION 475, 482-83 (John Angus Campbell & Stephen C. Meyer eds., 2003) [hereinafter DDPE]. 6. PHILLIP E. JOHNSON, DARWIN ON TRIAL 28 (1991) [hereinafter DARWIN ON TRIAL]. Thomas Huxley, perhaps Darwin’s staunchest advocate, debated Anglican bishop Samuel Wilberforce a year after Darwin’s great book was published. Michael Behe describes the confrontation as follows: “It was reported that the bishop – a good theologian but poor biologist – ended his speech by asking, ‘I beg to know, is it through his grandfather or grandmother that Huxley claims his descent from a monkey?’ Huxley muttered something like, ‘The Lord has delivered him into my hands,’ and proceeded to give the audience and the bishop an erudite biology lesson. At the end of his exposition Huxley declared that he didn’t know whether it was through his grandmother or grandfather that he was related to an ape, but that he would rather be descended from simians than be a man possessed of the gift of reason and see it used as the bishop had used it that day. Ladies fainted, scientists cheered, and reporters ran to print the headline: ‘War Between Science and Theology.’” MICHAEL J. BEHE, DARWIN’S BLACK BOX: THE BIOCHEMICAL CHALLENGE TO EVOLUTION 236-37 (The Free Press ed. 2003) (1996) [hereinafter DARWIN’S BLACK BOX]. 7. Phillip E. Johnson, How to Sink a Battleship: A Call to Separate Materialist Philosophy from Empirical Science, http://www.douknow.net/ev_sinkabattleship.htm (last visited Sept. 16, 2005). 8. See John Angus Campbell, Intelligent Design, Darwinism, and Public Education Philosophy (quoting http://fp.bio.utk.edu/darwin/frmain.html), in DDPE, supra note 5, 3, 24. 9. DARWIN ON TRIAL, supra note 6, at 124.

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146 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 D. What Do Most Scientists and the Public Believe? Polls show that approximately ten percent of the American public believes that life resulted from an accident followed by a mindless sequence of events and that “[m]an is,” as the celebrated George Gaylord Simpson once phrased it, “the result of a purposeless and natural process that did not have him in mind.”10 The remaining ninety percent of the public is almost evenly divided between creationists on the one hand and theistic evolutionists on the other.11 Of those pre-eminent biological scientists who have attained membership in the National Academy of Sciences (NAS), over ninety-four percent of them state that they do not believe in any form of deity, as compared to a group of randomly selected scientists without NAS membership, of which over sixty percent expressed disbelief or doubt in any god.12 It is not uncommon, or surprising, for a modern biologist to make a categorical statement like the following: “In the century and a half since Charles Darwin’s Origin of Species, scientific research has conveyed one consistent message: evolution is an indisputable fact.”13 The meaning of such a pronouncement is not 10. GEORGE GAYLORD SIMPSON, THE MEANING OF EVOLUTION 345 (rev. ed. 1967). 11. PHILLIP E. JOHNSON, DEFEATING DARWINISM BY OPENING MINDS 10 (1997). Consider the results of a poll taken by Gallup in 2001, inquiring into American beliefs regarding evolution. The poll indicated that only nine percent of the American people accepted Darwin’s explanation of the origin and development of life. Gallup ran a later poll in November, 2004, that showed creationists at forty-eight percent, theistic evolutionists at thirtyeight percent, and those accepting natural selection and random variations at thirteen percent. Newsweek ran a similar poll in 2004, demonstrating virtually the same results, with forty-seven percent, thirty-six percent, and eleven percent respectively. See Matthew Nisbet, Polling Opinion about Evolution, SCIENCE AND THE MEDIA, Mar. 1, 2005, http://www.csicop.org/scienceandmedia/evolution/. To state that polls show the percentage of Americans who accept a straight Darwinian view is “approximately ten percent” is essentially correct. 12. John Angus Campbell, supra note 8, at 3, 23-24 (quoting Edward Larson & Larry Witham, The More They Learn The Less They Believe, NATURE at 313 (June, 1998)). Cf. DARWIN’S BLACK BOX, supra note 6, at 239 (in which the author states, “there is no reason to think that the figure of 90 percent of the general population that believes in God is much different for scientists”). Behe fails to support his statement with any data. It is at best anecdotal. 13. Mary Beth Saffo, Accidental Elegance: How Chance Authors the Universe, THE AM. SCHOLAR, Summer, 2005, at 18. Various meanings hover

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 147 only that modification occurs within species, as for example variances in the beak size of a finch population in response to environmental conditions, but the meaning is also that the development of life is unguided. Meanings become conflated. The point of interest is that the latter meaning, just as the former, is afforded “factual status” and enjoys the solid support of the scientific establishment. Most of the American public, by contrast, believe that the latter meaning is anti-religious and do not subscribe to it. E. Constitutional Questions This fact gives rise to several compelling legal questions: What should American public schools teach about the history of life? Does teaching Darwin’s theory of evolution, or the accidental commencement and non-intelligent development of life, as “an indisputable fact,” and at the expense of taxpayers who in overwhelming numbers disagree with the theory, create an atmosphere of religious (or anti-religious) orthodoxy in the classroom in violation of the Establishment Clause of the Constitution? These questions have yet to be answered clearly by the United States Supreme Court. F. The Scope of This Article The goal of this Article is a modest one. It is certainly not to demonstrate that evolutionary theory, in any of its forms, is false or that it should not be taught in public schools. Nor is the purpose to convince the reader that another theory of the history of life deserves special favor in the classroom. The objective is to show that evolution, interpreted as an algorithmic expansion of life following its fortuitous appearance, violates the Establishment

over the term “evolution.” See infra note 103. I suspect that Saffo is conflating meanings, when she moves from evolution as “an indisputable fact” (one might imagine that she is referring to microchanges within a given species) to evolution as the mindless, purposeless development of life. After insisting that evolution is a fact, she mentions, for example, a symposium she attended, where the question for discussion was whether life has a purpose, and she praises the response of a distinguished historian of science, Evelyn Fox Keller, who asked, “‘Why do we feel compelled to ask this question?’” Mary Beth Saffo, supra, at 19. The truth of the matter is that the fallacy of equivocation is commonplace in discussions of the subject.

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148 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 Clause whenever taught as “factual” or as orthodox doctrine in public schools, contrary to the religious viewpoints of most of the American people. Throughout this Article, such terms as “neoDarwinism,” “evolutionary theory,” and “evolution” are defined always to mean that life occurred accidentally and developed mindlessly. I propose to fulfill the above-stated objective in three parts. Part II of this Article will consider the position of a leading legal and social commentator, Kent Greenawalt, on the teaching of evolution in public schools. Part III will analyze several pertinent Supreme Court opinions along with one from a federal district court. Finally, Part IV will briefly outline how my position on the teaching of neo-Darwinism in public school accords with the theory of religion-jurisprudence that I have explicated elsewhere.14 II. FROM GREENAWALT’S PERSPECTIVE

Kent Greenawalt, a Columbia University law professor, is a careful and thoughtful commentator on jurisprudential issues. He has written prolifically on subjects such as the relationship between law and morality, the connections between religious belief and political decision-making, and the inter-workings of church and state.15 In his latest book, provocatively entitled Does God Belong in Public Schools?, he discusses the role of religion in public education and sets forth his views regarding the teaching of evolution in the public classroom.16 A. Darwin’s Biological Theory and Its Resultant Conflicts with Religion Greenawalt explains that, although Darwin was not the first

14. See L. Scott Smith, From Typology to Synthesis: Recasting-Casting the Jurisprudence of Religion, 33 CAP. U. L. REV. (forthcoming Jan. 2006) [hereinafter From Typology to Synthesis]. 15. See generally KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY (Oxford paperback ed. 1989) (1987); KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995); Kent Greenawalt, The Role of Religion in a Liberal Democracy: Dilemmas and Possible Resolutions, 35 J. OF CHURCH AND ST. 503 (1993). 16. See KENT GREENAWALT, DOES GOD BELONG IN PUBLIC SCHOOLS? (Princeton Univ. Press 2005) (1936) [hereinafter GREENAWALT].

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 149 to suggest the idea of evolution,17 he was the first to offer a sustained scientific treatment of the topic.18 His central thesis “[was] that species are not fixed and immutable . . . [and that] [f]rom one original species, a number of different kinds may be generated.”19 Modification of organisms takes place gradually over time through a process of natural selection acting on random mutations. Whether a characteristic is passed to offspring depends upon the extent to which the characteristic aids in survival and reproduction.20 Greenawalt emphasizes that Darwin supported his theory by He viewed selective breeding, for empirical observation.21 example, as an analogue of how natural selection could occur.22 He studied animal embryos and anatomical structures and was impressed by similarities between them.23 Fossils, he thought, demonstrated the gradual development of complex forms of life from simple ones.24 Disparate species found in isolated areas, such as the Galápagos Islands, underscored for him the reality of variant forms of life emerging from common ancestry.25 Greenawalt explains that Darwin’s original theory has been supplemented and modified over time, resulting in what is now referred to as the “neo-Darwinian synthesis.”26 17. Gould relates that Patrick Matthew, a Scottish naturalist who was Darwin’s contemporary, was the first to hit upon the idea of natural selection and presented it in the appendix of a book published in 1831, Naval Timber and Arboriculture. Following Darwin’s immediate ascent to fame in Britain, Matthew published a letter in Gardener’s Chronicle, announcing that it was he who had been the first to articulate the theory. Darwin conceded the matter. See STEPHEN JAY GOULD, THE FLAMINGO’S SMILE 336, 345-46 (1985). 18. GREENAWALT, supra note 16, at 91 (quoting JEFFRIE MURPHY, EVOLUTION, MORALITY, AND THE MEANING OF LIFE 47 (1982)). 19. Id. at 91 (quoting PHILIP KITCHER, ABUSING SCIENCE: THE CASE AGAINST CREATIONISM (1982) and ROBERT T. PENNOCK, TOWER OF BABEL 55 (1999)). 20. GREENAWALT, supra note 16, at 91. 21. Id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. Behe points out that, during the middle of the twentieth century, scientific leaders representing the many branches of biology, such as genetics, paleontology, comparative anatomy, and embryology, held a series of interdisciplinary meetings to combine their insights into “a coherent theory of evolution based on Darwinian principles.” The result [was] the ‘evolutionary

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150 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 The dawning of “Darwin’s theory,” Greenawalt notes, “understandably disturbed many traditional Christians.”27 For it is an explanation of human life “without reference to God’s creative hand.”28 Human beings are viewed as only “one link in a long continuous chain,”29 where no vast qualitative distinctions exist between them and similar species. Far from being the consummation of all life, humanity appears to represent only a series of steps in a biological continuum, which by its purposeless, algorithmic expansion one may reasonably postulate the generation of future life-forms superior to that of Homo sapiens.30 Greenawalt additionally observes that, according to many evolutionary biologists, a brief consideration of the harsh process of natural selection and the imperfect results that it renders strongly suggests that any “creator” about which religion may speak is neither divinely loving nor is such creator’s work product immutably perfect.31 Neo-Darwinian theory continues today to evoke conflicts with religion. Greenawalt acknowledges these.32 He is cognizant that there are many religious persons in this country who believe in a Creator-God, a deity that not only intervenes in human life, but also fashioned man to be a little “‘lower than the angels . . . [and subsequently] crowned him with glory and honor, putting [neo-Darwinian synthesis.’” DARWIN’S BLACK BOX, supra note 6, at 24. Perhaps the best explanation and defense of neo-Darwinism belongs to Richard Dawkins. See RICHARD DAWKINS, THE BLIND WATCHMAKER (1996) [hereinafter THE BLIND WATCHMAKER]. He describes the pivotal work in population genetics of R. A. Fisher and his colleagues and states they “showed that Darwinian selection made sense,” because what changes in evolution is “the relative frequency of discrete hereditary particles, or genes . . . ,” which either are or are not in evidence in any particular human body. Id. at 114-15. Populations never, in other words, become so uniform that “there will be no variation left for natural selection to work upon.” Id. at 114. Dawkins writes, “Darwinism post-Fisher is called neo-Darwinism.” Id. at 115. 27. GREENAWALT, supra note 16, at 92. 28. Id. 29. Id. 30. Id. 31. Id. at 97. See Massimo Pigliucci, Design Yes, Intelligent No: A Critique of Intelligent Design Theory and Neo-Creationism, in DDPE, supra note 5, 463, 469. The author insists that ailments like “hemorrhoids, varicose veins, backaches, and aching feet” point, if anything, to an incompetent intelligent designer. Id. 32. GREENAWALT, supra note 16, at 92.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 151 everything in subjection under his feet.’”33 These people regard the “blind watchmaker”34 model of life’s expansion as a direct, frontal assault upon their “religious belief and morality.”35 B. The Boundaries of Reflection upon the Problem Greenawalt isolates “five fundamental premises”36 by which to reflect upon the boundaries of instruction in science class concerning the origin and history of life. They are the following: (1) Schools should not teach the truth of religious propositions. (2) For many people, the domains of science and religion overlap significantly. (3) Anyone’s assessment of what is true, overall, will include an evaluation of all relevant sources of truth, including any religious sources he or she credits. (4) Modern science is committed to methodological naturalism. (5) Scientific conclusions can bear on the likely truth of religious propositions.37 I will briefly take up and explain each of these, although not in Greenawalt’s order. Numbers (1) and (5) and numbers (2) and (3) I will explicate together.

33. Hebrews 2:7-9 (Revised Standard). 34. “The Blind Watchmaker” is of course the title of Richard Dawkins’s book. See THE BLIND WATCHMAKER, supra note 26. The title is intended to stand in contraposition to a noteworthy analogy, found in the famous work, Natural Theology, written by the eighteenth century theologian, William Paley. See WILLIAM PALEY, NATURAL THEOLOGY (1802). Paley argues that, just as we may happen upon a watch and reason that it had been designed by an artificer, the same can be inferred of the world, with its intricate designs, in relation to God. Id. at 1, 9-10. While a theology student at Cambridge University, Darwin studied Paley’s arguments for intelligent design and considered that part of his university training to be what was most permanently valuable to him. See John Angus Campbell, supra note 8, at 35. Darwin used Paley’s thinking as a foil throughout The Origin of Species and attempted to demonstrate to his reader that all design in the biological world is merely apparent, not real, and that an enlightened person cannot “look at an organic being as a savage looks at a ship . . . .” DARWIN (6th ed.), supra note 3, at 426. 35. GREENAWALT, supra note 16, at 92. 36. Id. at 95. 37. Id.

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152 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 1. The Overlap of Science and Religion As Sources of Truth Greenawalt affirms that scientific propositions and religious beliefs overlap for many people and that attempting to place the two in airtight compartments ultimately “founders on the reality that scientists and religious believers both care about what is really true, overall.”38 Both scientists and religious believers make truth claims about physical reality that interest each other, although there are some religious people, Greenawalt acknowledges, who understand all religiously authoritative statements about physical reality nonliterally; in essence, they interpret such statements symbolically and mythically.39 The overarching point is that there is ample room for science and religion to rub against each other, and they do. While the perspectives of science and religion may conflict at times, they may also harmonize. Greenawalt identifies two traditional religious perspectives that are compatible with vigorous scientific investigation. The first is that God made the matter from which everything is fashioned and “set things in motion according to scientific laws that . . .[he or she] established.”40 The second is that the creator upholds the universe and all life within it, although “things [within the universe] run wholly in accord with scientific principles.”41 Whether one is impressed primarily with the conflicts or the compatibilities between science and religion, the fundamental interest that underlies the impression is generally a concern with truth across disciplinary lines. Most people, Greenawalt maintains, would agree that scientific investigation yields truth. Yet many scientists and others would not concur that religion is a source of truth. The problem arises when those who accept both science and religion as sources of truth are compelled to decide what to believe when the two differ in their account of the truth. In that event, he states, opposing conclusions are weighed and evaluated. A weak scientific theory may sometimes give way to the truth of a strong religious belief and, conversely, a weak religious belief to a strong scientific theory. Some religious 38. 39. 40. 41.

Id. at 96. Id. Id. Id.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 153 believers capitalize upon the weaknesses of evolutionary theory to bolster their doctrine of God, while evolutionary biologists emphasize, for example, the vulnerabilities inherent in the notion of divine perfection to buttress their scientific theory. These conflicts are inevitable so long as there are those who are concerned with what is true overall.42 2. Teaching the Religious and the Scientific Greenawalt agrees with those Supreme Court pronouncements, mandating that “public schools may not teach particular religious doctrines as true or as false.”43 He conditions his agreement upon the “basis”44 of a teacher’s instruction: if she instructs students that the earth is six thousand years old, and her instruction is based solely upon the Bible, the instruction is, or should be, legally impermissible. But if she teaches her students that the earth is over four billion years old, and she does so based upon scientific methods of dating, the instruction will pass constitutional muster. The kind of rational support underlying the teaching is what is decisive for determining its constitutionality. It follows from Greenawalt’s understanding that, if neo-Darwinism is taught as a scientific theory and happens to offend religious people, there is no constitutional violation.45 If on the other hand so-called “creation-science,” such as that advocated by Duane Gish, Harold Slusher, and Kelly Segraves,46 is taught in science class, the instruction is constitutionally offensive. The difference between the two is that the former is supported by scientific evidence, whereas the latter is not and owes its primary inspiration to religious belief. The respective bases of the doctrines differ radically from each other. 42. Id. at 96-97. 43. Id. at 95. 44. Id. 45. Id. at 95-96. 46. See McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1260 (E.D. Ark. 1982) (where a United States district court in Arkansas considered a civil rights action brought to enjoin the enforcement by the Arkansas Board of Education and others of a state statute requiring public schools to give balanced treatment to creation science and to evolution science and ordered a permanent injunction against such enforcement, deciding that evolution is science, although creationism is not). The court’s opinion specifically mentions these proponents of creationism. See also infra IV(C).

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154 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 One may wonder what happens when a student who is taught neo-Darwinism vigorously questions the instructor about how the notion of gradual modification can explain the intricate biochemical mechanisms of intracellular life? There are, 47 in modern Greenawalt admits, “present uncertainties” evolutionary theory and “[a]ny evidence for a kind of order of a sort not yet integrated into the dominant theory should be fairly presented.”48 Yet he hastens to add that teachers must indicate that neo-Darwinism has not been shown to be “incapable of explaining everything important.”49 Furthermore, they “should not get far into the question of whether any as yet undiscovered principles of order in evolution, were they to exist, are likely to have proceeded from a creative intelligence.”50 The reason for the reluctance “is that students with religious objections to standard evolutionary theory may build much more than is warranted from any scientific perspective from conjectures about intelligent design.”51 3. The Method of Science “Methodological naturalism,”52 Greenawalt points out, is the way of modern science. To describe his position in Aristotelian terms, modern science has to do exclusively with material and efficient causes. It searches for explanations according to uniform laws. It makes no reference to transcendent realities, purposes, or intelligent causes. Formal and final causation is not part of modern scientific methodology, which refuses to appeal to the supernatural. Greenawalt observes that “[m]ethodological naturalism has proven very productive; scientists have discovered natural explanations for countless phenomena not previously explicable according to scientific principles.”53 He mentions, but does not discuss, Alvin Plantinga’s suggestion that Christian scientists abandon methodological naturalism in favor of “‘theistic science,’”

47. 48. 49. 50. 51. 52. 53.

GREENAWALT, supra note 16, at 115. Id. Id. Id. Id. Id. at 97. Id. at 97-98.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 155 although he states that the suggestion would mean dispensing with “a shared, universal methodology that has proven highly valuable.”54 Part of his point may be that scientists comprise a distinct community and that one of its bonds is a commonly accepted method.55 C. The Plausibility of Neo-Darwinian Theory Greenawalt prefaces his view of neo-Darwinism with a confession of possessing no special scientific competence. He defends himself by maintaining that his views concerning neoDarwinism are nonetheless worth expressing, because anyone interested in the truth overall must invariably address issues in a field where he is not an expert, and because many education officials and judges also lack scientific competence.56 He writes, “[i]f a theory, while relying on scientific evidence, has almost no scientific plausibility, science teachers, and textbook authors, should not present it as having a substantial probability of being true.”57 Although scientific theories are revisable and tentatively held, it does not follow from this, he insists, that the classroom door should be opened wide to “every conceivable” theory.58 Proponents of the “flat earth” theory should not be provided equal classroom time with those who regard the earth as spherical.59 Neo-Darwinism provides “the most convincing scientific theory about the development of species” among the ranks of “[r]esearch scientists within the fields that count 60 overwhelmingly.” Frequently heard objections, such as that the theory assumes progress or is nonfalsifiable, are incorrect.61 One need only consider experiments with the peppered moth to 54. Id. at 98. 55. Ian G. Barbour emphasizes that the scientific community has its own standards, including its heroes, creeds, orthodoxies and heresies. See IAN G. BARBOUR, ISSUES IN SCIENCE AND RELIGION 151-74 (Prentice-Hall 1966). Changing its method would be seriously far-reaching and might serve to fracture the community. 56. GREENAWALT, supra note 16, at 101. 57. Id. at 101-02. 58. Id. at 102. 59. Id. 60. Id. 61. Id.

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156 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 illustrate the way “we can clearly see that organisms better suited to survive in the environment do survive and pass on their characteristics to descendants.”62 Greenawalt stresses, “[i]f any theory of the development of life on earth qualifies as plausible, evolution does so.”63 Consider some of the arguments against evolutionary theory. How can it satisfactorily explain the gradual development of an eye or a wing, when only an incremental part of either organ would confer no competitive advantage and would, according to Darwin, result in the death of the organism? Greenawalt contends that a degree of sensitivity to light is an improvement over blindness, “so we can imagine a slow progression from blindness to the full eye.”64 He states that even if the theory were not adequate to explain the development of complex mechanisms such as the human eye, it would still be a distant stretch that Genesis creationism or intelligent design theory is true.65 He suggests, as a possibility, that other naturalistic views, like Stuart Kauffman’s “self-organization” theory, might explain the complexity in organisms.66 After all, when we consider the development of a baby from a single-cell human embryo, “programmed according to the DNA in its genes,” we must realize that complexity in organisms may be fully explicated without invoking “an intelligent creator.”67 Arguments that oppose the idea of natural selection may aid in the construction of a suitable alternative theory, although Greenawalt stresses that they “do not support a single alternative that involves an intelligent creator.”68 Reliance upon the notion of an intelligent creator to explain a phenomenon in nature means that any naturalistic explanation that one may give of the 62. Id. 63. Id. 64. Id. at 104. 65. Id. 66. Id. For an explanation of self-organization theory, see Stephen C. Meyer, DNA and the Origin of Life: Information, Specification, and Explanation, in DDPE, supra note 5, 223, 248-49 [hereinafter DNA and the Origin of Life]. Instead of attempting to explain the origin of biological information by chance, theorists began searching for laws of self-organization and properties of chemical attraction in order to do so. The emphasis was upon necessity as opposed to chance. 67. GREENAWALT, supra note 16, at 104. 68. Id.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 157 phenomenon is false.69 A supernatural method will then trump a natural one. Greenawalt discounts challenges to evolution based upon differences between evolutionary theorists. He observes that, while two experts may differ about why a thing happened, they do not disagree that it happened.70 He may have in mind the difference between Dawkins’s gradualist theory that modification occurs slowly and incrementally in organisms and Gould’s and Eldridge’s punctuated equilibrium theory that postulates rapid speciation followed by long periods of stasis.71 Yet it is not clear to what particular disagreements, if any, he is referring. Greenawalt likewise discounts the challenge to neoDarwinism based upon probability theory, the point of which is to question whether the complex development of life is explicable in terms of chance variations. “Before-the-fact probabilities,” he contends, “are irrelevant once we are aware what actually happened.”72 So what difference does it really make that we might imagine an extraterrestrial guest, vastly intelligent and informed, who considered the conditions of planet Earth over four billion years ago and concluded that mammalian life was extremely unlikely? After all, in a random process in one legal case, Greenawalt reminds us, Democrats topped the ballot on forty of forty-one occasions.73 The purpose of the improbability argument is, it seems, only to render more plausible the theory of intelligent design.74

69. Id. at 105. 70. Id. 71. See THE BLIND WATCHMAKER, supra note 26, at 223-52. Here, Dawkins minimizes, like Greenawalt probably would, the differences between Dawkins’s neo-Darwinian gradualism and Gould’s and Eldridge’s punctuationism, by speculating as follows: that a herd of animals (B) could separate from its mother-herd (A); the geographical differences in B’s circumstances would cause B to evolve over time; by the time B wanders back to A, the two have effectively become different species; when paleontologists, like Gould, explore for fossils, they find B’s fossil remains in a stratum of rock immediately above A’s, giving the impression of sudden change. Id. The differences between the theories are, for Dawkins at least, only apparent, because gradualism explains them both. Id. at 238-41. 72. GREENAWALT, supra note 16, at 106. 73. Id. 74. Id.

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158 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 D. The Lack of Plausibility of Competing Positions Greenawalt makes short work of Genesis creationism, pointing out that “[f]ew research biologists and paleontologists believe that . . . [its] attack on evolutionary theory is anything close to compelling.”75 Creationists’ contentions that the earth is only 10,000 years old and that the Genesis Flood has called into question all modern methods of dating by altering geological processes, when combined with the fact that the theory is established upon a nearly total lack of reliable scientific evidence, make creationism either “nonscience or very bad science”76 and a weak challenger of neo-Darwinism.77 Greenawalt is less negative toward the theory of intelligent design. Provided that it does “no more than challenge the completeness”78 of evolutionary theory and address “details the dominant theory fails to explain,”79 the intelligent design approach may be “consistent with the empirical evidence.”80 The theory, however, is not established by scientific evidence.81 E. The Limits of Science and Scientific Instruction So might either creationism or intelligent design be incorporated into a public school’s science curriculum? According to Greenawalt, the answer is, generally, no. These theories should be disqualified from the science curriculum, because (1) the concept of an intelligent designer is not scientific, (2) the explanations provided by the theories are not naturalistic, (3) the proponents of the theories are not open to contrary evidence, and (4) only a dearth of scientific evidence favors the theories.82 Greenawalt questions language like “‘abrupt appearance’”83 when used by these theorists to describe the advent of complex animal systems. Because such language suggests that life

75. 76. 77. 78. 79. 80. 81. 82. 83.

Id. at 107. Id. at 115. Id. at 107. Id. at 108. Id. Id. Id. Id. at 108-09. Id. at 109.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 159 resulted from “a supernatural creative force,”84 the language is unscientific. He carefully balances this view with the observation that, just because a theory may make the existence of a divine creator more probable, one is not free to conclude that the theory is “necessarily unscientific.”85 Perhaps the foremost problem with intelligent design theory, Greenawalt ventures, is that its proponents are unconvinced that “natural explanations”86 will ever be able to solve the mystery of life. Their position is misguided, he argues, because “we can never be sure that ordinary scientific explanations will remain unsatisfactory.”87 It does not follow from this premise that science lends itself to the certainty that we may conceive a scientific explanation for each and every physical event. What we can reasonably affirm is that many events once attributed to supernatural causes have now been explained in terms of natural ones.88 So both creationism and intelligent design theory, insofar as they take a position beyond science, are, according to Greenawalt, really about its limits.89 To put the matter another way, intelligent design theory may be able to tell us what a superior intelligence has done, but it cannot explain why it has done it. Without an explanation of why the intelligent designer created the complex biological systems that it did, “[there is] no scientific explanation,” insists Greenawalt, “for what has occurred.”90 Intelligent design theory is about the limits of science because the theory does not explain, pursuant to empirical evidence, why the creative force acts as it does or how physical phenomena exemplify any general principles whatsoever.91 The limitations of science might be an appropriate topic for science class, but the topic has little relevance to whether students should be instructed on the theory of intelligent design.92 Greenawalt believes that the limitations of science definitely 84. 85. 86. 87. 88. 89. 90. 91. 92.

Id. Id. Id. at 110. Id. Id. Id. at 111. Id. at 112. Id. Id. at 113.

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160 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 deserve mention, although “[t]he full development of [its] intrinsic limits belongs outside the domain of science.”93 Certainly, science cannot explain why there is something instead of nothing, why life has meaning (if it does), and why ethics are important.94 In spite of acknowledging the limits of science, Greenawalt suggests teachers and textbooks should state it is premature for the student to conclude that any difficulties with evolutionary theory cannot and will not be rectified by natural explanations.95 F. Greenawalt’s Conclusions With a concluding burst of clarity and emphasis, Greenawalt contends that teaching Genesis creationism amounts to teaching religion. Teaching intelligent design theory may be permissible provided the instructor accepts most features of neo-Darwinism, including the blind, purposeless hand of natural selection, and refrains from asserting that intelligent design resolves the problems of the dominant theory.96 A school board’s decision not to teach neo-Darwinism,97 just because it offends traditional religious views, means little more than that religious views are dictating the content of science classes. Greenawalt argues that such an ill-advised decision constitutes the state endorsement and promotion of a religious view opposed to evolutionary theory.98 The same is true when students are taught that evolution is “only ‘a theory’” and are given the impression that the theory is on weaker footing than other scientific explanations.99 The state is to make sure that religious beliefs are not inculcated, directly or indirectly, into the science curriculum, although proper instruction in science can, and often does, offend religious beliefs and with impunity from the

93. Id. 94. Id. 95. Id. at 114. 96. Id. at 116-17. 97. Some scientists argue that “science has nothing to contribute on questions pertaining to the origin of physical reality or the origin of life” and that “[t]hese matters are properly part of religion and not of science.” See Brig Klyce & Chandra Wickramasinghe, Creationism Versus Darwinism: A Third Alternative, in DDPE, supra note 5, 543, 547. 98. GREENAWALT, supra note 16, at 117. 99. Id.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 161 state.100 Greenawalt is not advocating that students with religious beliefs incompatible with evolutionary theory be intellectually bludgeoned into submission. “[A] science [instructor] may raise the issue whether the record science reveals is what we should expect from a creator acting directly; but the teacher should not attempt to resolve that question or discuss it in depth.”101 No one’s religious views, not even those of the children’s parents, should be allowed to determine whether standard scientific material is taught in public schools. Evolutionary theory should be presented as the dominant theory with an indication of its deficiencies. The instructor should note that the theory is compatible with the religious views of some regarding the origin of human life, but not with others. Any alternative theory, Greenawalt insists, should be taught in science class only if it adheres to and supports principles of methodological naturalism. The student should be informed that there is no present basis on which to assume that any biological phenomenon “will prove beyond natural explanation and will point decisively to intelligent design.”102 III. ANALYSIS OF GREENAWALT’S POSITION

A. Preferential Treatment for the Religious Implications of Evolutionary Theory Neo-Darwinism is, in Greenawalt’s view, “the dominant theory” and unquestionably the one to be taught in science class. Because the theory is, in his opinion, as well-supported as any other scientific theory, it should be taught as fact. He takes this position even as he is fully aware that the religious implications of neo-Darwinism contradict the religious beliefs of many students. The word “evolution” is used in a number of diverse ways.103 100. Id. at 118. 101. Id. at 120. 102. Id. at 121. 103. “Evolution” may refer to (1) change over the course of time; (2) “changes in the frequencies of alleles in the gene pool of a population”; (3) “limited common descent” or “the idea that particular groups of organisms have descended from a common ancestor”; (4) mechanisms responsible for change, such as natural selection and random mutations; (5) “universal

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162 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 Greenawalt uses it in the same way that Dawkins does, to include a process of biological development that is without direction, purpose, or intelligence. This meaning is absolutely integral to the theory. As Daniel C. Dennett expresses it: Darwin’s dangerous idea cuts much deeper into the fabric of our most fundamental beliefs than many of its sophisticated apologists have yet admitted, even to themselves. . . . The kindly God who lovingly fashioned each and every one of us (all creatures great and small) and sprinkled the sky with shining stars for our delight – that God is, like Santa Claus, a myth of childhood, not anything a sane, undeluded adult could literally believe in. That God must either be turned into a symbol for something less concrete or abandoned altogether.104 The term “evolution,” when given its full neo-Darwinian meaning, carries an enormous load of theological freight. So the question becomes how Greenawalt, or any other liberal thinker, can insist upon the teaching of a particular theological point-ofview as factual. When did the notion of a liberal state necessitate that students be taught that a “kindly God who lovingly fashioned each and every one of us” is akin to a belief in Santa Claus? B. Knowledge and Belief in Liberal Theory Based upon the position he has staked out for himself, Greenawalt might respond that liberalism distinguishes between “knowledge” and “belief,” and that neo-Darwinism is about the former, not the latter. Assuming, arguendo, that he would be correct in this assertion, does it still not strike one as odd that any type of liberal, whether traditional or modern, would be willing to elevate a theological claim to a position of “empirical knowledge”? common descent” or the idea that all organisms emerge from a common ancestor; and (6) the “‘[b]lind watchmaker’” idea that change over time is an unguided, mindless, and purposeless process, rendering only apparent, not real, design in the biosphere. See Stephen C. Meyer & Michael Newton Keas, The Meanings of Evolution, in DDPE, supra note 5, 135, 136-37. The sixth meaning of the term is the one that is primarily under scrutiny in this Article. 104. DENNETT, supra note 4, at 18.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 163 Mill and Kant were not willing to do it, nor has Greenawalt himself previously shown the inclination.105 If his present position is that there is no Creator-God, that the idea is false based upon the dictates of neo-Darwinian theory, then Greenawalt should show us how it is within the province of science to derive this or any other such conclusion. C. The “Apparent” Subtlety of Greenawalt’s View Perhaps he would protest that I am missing the point of his subtly nuanced treatment of the subject. He has, after all, been careful to maintain that, while neo-Darwinism should be taught as the well-supported scientific theory it is, science teachers should not tarry over its religious implications by discussing them in depth. Since any substantive discussion of neo-Darwinian theory jars open the door to a consideration of whether the biological world is “designed” (how could it not?), Greenawalt’s position is neither subtle nor liberal. It is analogous to that of a history or political science instructor declaring that the topic for the week is Marxism in the Soviet Union, although no questions will be entertained regarding that ideology’s harshly adversarial stance against traditional religions. Is this strait-jacketed approach to teaching science, with severe limits on what teachers can and cannot say, the place where liberalism has finally brought us? Greenawalt cannot have it both ways: either (1) neo-Darwinian theory is taught as factual, in which case traditionally religious students who closely question their instructors on the religious implications of the theory must be told categorically and unequivocally that all beliefs in a deity who designed and created life are false, or (2) the theory is not taught as factual, which would mean that Greenawalt’s estimation of it must be radically revised. D. God and Evolutionary Theory But am I not interpreting Greenawalt’s position in a

105. See KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (Oxford University Paperback ed. 1991) (1988); see also PRIVATE CONSCIENCES AND PUBLIC REASONS (1995). In neither of these works does Greenawalt take the position that any traditional religious belief comprises “knowledge” that is readily accessible by all.

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164 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 perversely pejorative light? Has he not explained to us that neoDarwinism is compatible with at least two religious perspectives? There is no reason, is there, why a creator (1) could not have made original matter and set the evolutionary process in motion, or why a creator (2) could not continue to sustain the universe and life within it? The first position is deistic; the creator is deus absconditus with no capacity to be touched by prayer, to intervene in the world, or otherwise to make a present difference in the here and now. The second position also, in its own way, places deity outside the world of human understanding and experience. One need only ask Greenawalt to explain how a god who sustains the universe and life within it does so? If he does not refer us to theologians or religious philosophers, he will probably reach for a word, such as “faith,” in an effort to cover a host of rationally and empirically questionable truth-claims. The point is that, for him, there are no rules of understanding or of experience, which render a single compelling conclusion about a divine creator. That is because the creator to which he refers is outside the realm of knowledge.106 Greenawalt is, in effect, stating to his readers that neo-Darwinian theory is factual, while there are at least two narrow theological positions compatible with it, which actually comprise mere subjective beliefs. If and when a teacher presents evolutionary theory in keeping with Greenawalt’s unvarnished view of the matter, specifically, when the teacher’s presentation does not attempt to soft-pedal the theory by restricting discussion of its religious implications as Greenawalt suggests, it is far from mysterious which position most students will be inclined to adopt. The choice is, after all, between “knowledge” on the one hand and “belief” on the other or, to be bluntly straightforward, between “fact” and “fantasy.”

106. It is curious that Greenawalt criticizes the “separate discourses” approach to science and religion, arguing that there are points of convergence between the two disciplines. The particular religious perspectives that he regards as compatible with scientific investigation place the notion of deity in a realm separate and distinct from that of science, very comfortably outside the empirical world. In the final analysis, contrary to what he tells us, he cannot escape the “separate discourses” position since, for him, there can be no real dialogue between the two, because each is in its own universe and shares no common ground with the other. See GREENAWALT, supra note 16, at 96.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 165 E. Teaching Contrary to a Student’s Religion Even if one were to admit with Greenawalt that neoDarwinism is factually correct and that the biological universe is without any real design, teaching the theory, along with its religious implications, as “knowledge” is profoundly illiberal. Parents who are taxed to pay for public education should not, according to the most basic tenets of liberalism, be made to place their children in a position where they are forced to accept religious views contrary to those they and their family hold. Was this not the rationale of West Virginia State Board of Education v. Barnette?107 All liberals everywhere who happen to agree with Greenawalt will doubtless remonstrate in unison, “No, West Virginia State Board concerned an enforced devotional exercise, whereas teaching evolutionary theory has to do with the conveyance of scientific knowledge!” Maybe there is a principled difference between a student who is forced against his religious convictions to salute a flag and one who is compelled against her religious views to write, in answer to an exam question, that the history and development of life on earth is an unguided, unintelligent, and purposeless process, that human life is no more favored in the evolutionary process than that of an insect or a reptile, and that life arose accidentally from nonliving matter and has developed in a mindless way ever since. If there is a legal distinction between these two cases other than that one is termed “religious” while the other “scientific,” it is not immediately obvious. Both have religious relevance. So if liberalism is correct in its assertion that religious beliefs are, one and all, subjective, no religious belief deserves precedence or priority over another. F. Is Neo-Darwinism Fact? But, my critic asks, cannot liberalism be understood to provide for the teaching of religious views that follow ineluctably from scientific fact? Consider the devastating consequences that Copernicus’s heliocentricism had upon the theologies of his time. 107. See 319 U.S. 624, 642 (1943) (holding, on free exercise grounds, that public school students who were Jehovah’s Witnesses could not be made to salute the United States flag and thus to declare a belief in violation of their religion).

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166 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 No one would presently dare make the absurd argument that Copernican theory should not have been taught as factually true simply because Luther and other religious persons were offended by it.108 Is neo-Darwinian theory on par with Copernicus’s discovery? Sooner or later, one must inquire into the merits of the assertion that evolutionary theory is factual. This Article is not the place for that protracted inquiry, although a brief consideration of several of Greenawalt’s points is in order. 1. Neo-Darwinism and the Fossil Record Darwin theorized that infinitesimal changes in animal morphology occur gradually over time as a result of the mindless natural process that he described. He assumed a complete fossil record would demonstrate the truth of his theory. He was so convinced of gradual change that he wrote, “If it could be demonstrated that any complex organ existed which could not possibly have been formed by numerous, successive, slight modifications, my theory would absolutely break down.”109 Nature, in other words, makes no sudden leaps, “‘natura non facit saltum.’”110 Darwin equated such leaps with miracles. NeoDarwinism thus predicts the gradual emergence of biological complexity, which manifests itself in the existence of many transitional forms leading to new phylum-level morphologies. Although the fossil record is imperfect, a century and a half of paleontological exploration have not been sufficient to confirm Darwin’s prediction. An abundance of intermediate animals has not been found. Gould himself described “‘the extreme rarity of transitional forms in the fossil record’ as ‘the trade secret of paleontology.’”111 Of the reputed intermediates that have been unearthed, it is unclear the extent to which they bolster Darwin’s theory. Consider the fossil Archaeopteryx, an animal that apparently possessed a combination of reptilian and avian characters. While

108. See Donald H. Kobe, Luther and Science, Jan. 2004 (updated), http://www.leaderu.com/science/ kobe.html (last visited Oct. 20, 2005). 109. DARWIN, supra note 3, at 189. 110. Id. at 194. 111. DARWIN ON TRIAL, supra note 6, at 59.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 167 some investigators have pronounced it a forgery,112 others wonder whether it was not merely an odd variant, like the duck-billed Platypus, with characteristics resembling a class to which it does not belong.113 Alan Feduccia, a leading ornithologist, has stated, “[m]ost recent workers who have studied various anatomical features of Archaeopteryx have found the creature to be much more birdlike than previously imagined . . . [and] the resemblance of [the creature] to theropod dinosaurs has been grossly overestimated.”114 Also of significance, since theropod dinosaurs are found in the fossil record after Archaeopteryx, it becomes increasingly problematic to think of the latter as a transitional animal between theropod dinosaurs and birds.115 2. Neo-Darwinism and the Cambrian Explosion The fossil record, far from illustrating in a powerfully trenchant manner the numerous gradual changes predicted by Darwin, actually demonstrates “a consistent pattern of sudden appearance followed by stasis . . . [and] that life’s history is more a story of variation around a set of basic designs than one of Consider the so-called accumulating improvement. . . .”116 Cambrian Explosion, which occurred 530 million years ago, and lasted a maximum of only five million years.117 During this time,

112. FRED HOYLE & CHANDRA WICKRAMASINGHE, ARCHAEOPTERYX, THE PRIMORDIAL BIRD: A CASE OF FOSSIL FORGERY (1986). 113. DARWIN ON TRIAL, supra note 6, at 78. 114. ALAN FEDUCCIA, THE ORIGIN AND EVOLUTION OF BIRDS 81 (1996). 115. See the informative article, Why Birds Aren’t Dinosaurs, in Explore: Thought and Discovery at the University of Kansas, http://www.research.ku.edu/exsplore/v2n2/dino2.html, in which it is explained that Larry Martin, the paleontology curator at the University of Kansas Natural History Museum, states that Archaeopteryx is 150 million years old, while theropod dinosaurs appear 30 million years later. 116. DARWIN ON TRIAL, supra note 6, at 58-59. See also GEORGE GAYLORD SIMPSON, THE MAJOR FEATURES OF EVOLUTION 360 (1953). Here, he states, “[I]t remains true, as every paleontologist knows, that most new species, genera, and families and that nearly all new categories above the level of families appear in the record suddenly and are not led up to by known, gradual, completely continuous transitional sequences.” Id. If Simpson was willing to speak of “sudden” appearances, then what is the legitimacy of Greenawalt’s complaint about the word “abrupt”? See GREENAWALT, supra note 16, at 109. 117. See Stephen C. Meyer, Marcus Ross, Paul Nelson & Paul Chien, The Cambrian Explosion: Biology’s Big Bang, in DDPE, supra note 5, 323, 326.

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168 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 between nineteen and thirty-five phyla appeared on earth. Compared to the over three billion-year-old earth, a period of five million years is comparable to a single minute in a twenty-fourhour-day.118 In terms of geological time, the emergence of complex life may, contrary to Greenawalt’s criticism, be properly and reasonably described as “sudden.”119 Whereas the neo-Darwinian theory of Dawkins and the punctuated equilibrium theory of Gould predict that the fossil record will show morphological diversity (or small-scale variations) preceding morphological disparity (or large-scale variations), the evidence from the Cambrian Explosion shows just the opposite, particularly, “a ‘topdown’ pattern in which morphological disparity between many separate body plans emerges suddenly and prior to the occurrence of species-level (or higher) diversification on those basic themes.”120 Another commentator phrases the matter this way: “The known fossil record fails to document a single example of phyletic evolution accomplishing a major morphologic transition and hence offers no evidence that the gradualistic model can be valid.”121 3. Neo-Darwinism and Embryological Evidence Greenawalt mentions that Darwin formulated his theory of evolution based, in part, upon his observations regarding animal embryos. Specifically, he noticed that the embryos of mammals, birds, fishes, and reptiles bear close similarities, but become radically dissimilar once they have fully developed. His contemporary, Ernst Haeckel, propounded the “‘Biogenetic Law’”122 that “‘ontogeny recapitulates phylogeny,’”123 in essence, that the embryological development of animals repeat the alleged stages undergone during ancestral evolutionary descent. This 118. See id. 119. See id. at 325. 120. Id. at 346. 121. STEVEN STANLEY, MACROEVOLUTION: PATTERN AND PROCESS 39 (1979). 122. See Jonathan Wells, Haeckel’s Embryos and Evolution: Setting the Record Straight, in DDPE, supra note 5, 179, 179 [hereinafter Haeckel’s Embryos]. 123. Id. George Gaylord Simpson stated five decades ago, “It is now firmly established that ontogeny does not repeat phylogeny.” GEORGE GAYLORD SIMPSON & WILLIAM S. BECK, AN INTRODUCTION TO BIOLOGY 241 (Harcourt, Brace & World 1965) (1957).

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 169 “law,” however, was disproved during Darwin’s own lifetime. Haeckel is perhaps most famous for his drawings, still featured in many biological textbooks, of animal embryos, which purport to show similarities with one another. Yet the drawings neglect to illustrate the earliest stages of embryological development in vertebrates that, significantly enough, leave the impression of difference, not similarity.124 4. Neo-Darwinism and Experiments with the Peppered Moth In 1896, J. W. Tutt noted that light forms of the peppered moth flourished in unpolluted woodland areas, but that dark forms thrived in areas where industrial pollution had darkened the tree trunks.125 He theorized that natural selection was the decisive factor accounting for the modification in color.126 Dark color in polluted areas helped the peppered moth to survive.127 In the mid-twentieth century, Bernard Kettlewell tested Kettlewell released several Tutt’s theory experimentally.128 hundred peppered moths, light as well as dark, onto tree trunks in a polluted woodland.129 He observed at a distance that darks were less noticeable than lights and that birds were prone to prey upon the lights.130 He confirmed that darks had, in fact, survived the threat of predation better than lights.131 He concluded from the experiment that birds acting as agents of natural selection and the 124. Jonathan Wells points out that the drawings “ignore[ ] groups that did not fit neatly into Haeckel’s scheme.” Haeckel’s Embryos, supra note 122, at 179, 181. Two of the seven vertebrate classes were, for example, conveniently omitted. There is also evidence in recent embryological studies that Haeckel intentionally distorted his drawings as there are significant differences between the various embryos even at the stage at which Haeckel declared that they were most similar. Id. at 181-82. Gould writes, “[W]e do, I think, have the right to be both astonished and ashamed by the century of mindless recycling that has led to the persistence of these drawings in a large number, if not a majority, of modern textbooks!” Stephen Jay Gould, Abscheulich! – Atrocious! –The Precursor to the Theory of Natural Selection, NATURAL HISTORY, Mar., 2000, at 44, 45. 125. Jonathan Wells, Second Thoughts about Peppered Moths, in DDPE, supra note 5, 187, 187. 126. Id. 127. Id. 128. Id. at 188. 129. Id. 130. Id. 131. Id.

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170 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 darkening of peppered moths to survive the effects of industrial pollution underlined the truth of evolutionary theory.132 Biologists later noted that dark peppered moths did not replace light ones even in heavily polluted environments as evolutionary theory predicts.133 In some areas, like East Anglia, where there was little industrial pollution, the frequency of dark moths was eighty percent, prompting some studying the peppered moth to conclude that frequencies in darks to lights are determined by many factors other than what birds can and cannot easily see.134 Furthermore, Kettlewell released his moths onto tree trunks, and it has since become clear that tree trunks are not the normal resting place for peppered moths. Natural selection, in Kettlewell’s experiment, may have been a stark example of unnatural selection.135 5. Neo-Darwinism and the Biochemical Challenge Michael J. Behe has questioned whether neo-Darwinian gradualism can explain the intricate and “highly sophisticated molecular machines [that] control every cellular process.”136 He calls our attention to such mechanisms as the cilium, which some cells may use much like a boatsman would use an oar for transportation. When a cilium is studied through an electron microscope, which is an opportunity that was unavailable to Darwin, one discovers a meticulously and irreducibly complex mechanical system that does not function unless all of its constituent parts are doing so. The question that Behe poses for the neo-Darwinist is whether this system could have evolved gradually, given that every component is needed for its operation.137 Behe demonstrates that, in addition to the cilium, every biochemical mechanism within a cilium is irreducibly complex. It is not as if Darwin himself did not ponder how organs of seemingly “irreducible complexity” could develop in a gradual way. Greenawalt describes Darwin’s and Dawkins’s understanding of 132. 133. 134. 135. 136. 137.

Id. at 188. Id. Id. at 188-89. Id. at 190. DARWIN’S BLACK BOX, supra note 6, at 5. Id. at 59-65.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 171 human vision as a series of gradual changes from a light sensitive spot to the full eye. But, again, there are more questions than answers. From the standpoint of gross anatomy, why would natural selection favor five percent of an eye, since it would still be visionless?138 From the standpoint of biochemical analysis, how can an evolutionary account of vision pass the basic credibility test when it merely assumes the presence of many necessary chemical ingredients, such as 11–cis-retinal (a molecule) and rhodopsin (a protein), both of which are essential for sight? Is Dawkins not aware that the cup of the eye, as “[a] ball of cells,” is held in its perfectly rounded shape by molecular supports?139 There are, in other words, complex and irreducible biochemical mechanisms that he and his theory cannot explain. 6. Neo-Darwinism and Artificial Breeding The main problem with trying to find support for evolutionary theory in artificial breeding is that the latter is a product of intelligent effort, whereas the former is a theory of the mindless development of life. There are those who may point to the fact that fruitflies have been artificially bred to produce a new species that cannot breed with the parent species. Yet there is no evidence that this can be done with dogs, monkeys, and humans, or that a fruitfly can be produced from a bacterium.140 One plausible way to interpret the fruitfly evidence is as Johnson has done: “What artificial selection actually shows is that there are definite limits to the amount of variation that even the most highly skilled breeders can achieve.”141

138. See DARWIN ON TRIAL, supra note 6, at 34. 139. See DARWIN’S BLACK BOX, supra note 6, at 36-39 (providing a breathtaking discussion of the biochemical ingredients of human vision). 140. The point should be emphasized that, in order to support intelligent design theory, one need not object to microevolutionary change. The issue is whether cumulative microevolutionary changes result in macroevolutionary change. Many commentators correctly make this point, but none does so better than Jeffrey F. Addicott. See Jeffrey F. Addicott, Storm Clouds on the Horizon of Darwinism: Teaching the Anthropic Principle and Intelligent Design in the Public Schools, 63 OHIO ST. L.J. 1507, 1536 (2002). 141. DARWIN ON TRIAL, supra note 6, at 18.

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172 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 7. Neo-Darwinism and Probability Theory Fred Hoyle, the famous British astronomer, once compared the probability of life occurring by accident to that of a typhoon blowing through a junkyard and constructing a Boeing-747.142 His calculations were apparently based upon the fact that a yeast cell and a Boeing-747 each have six million parts.143 Sheer chance is no longer regarded as a credible explanation for the origin of life. As one commentator has stated, “Almost all serious origin-of-life researchers now consider ‘chance’ an inadequate causal explanation for the origin of biological information.”144 Although probability calculations assume optimal prebiotic conditions, more time than was available on the early earth, and theoretically maximal reaction rates among proteins DNA or RNA, such calculations show that the probability of randomly obtaining functionally sequenced biomacromolecules is extremely small.145 Concerning the neo-Darwinian explanation of life, Dawkins admits, “We can accept a certain amount of luck in our explanations, but not too much. Cumulative selection, Dawkins argues, is the key to all our modern explanations of life.”147 But that explanation, he acknowledges, assumes “some minimal machinery of replication and replicator power,”148 which must certainly be explained by luck. Does the theory assume too much luck? According to Dembski’s calculations, the answer is yes. He has calculated a 150 conservative “universal probability bound” of one in 10 that he maintains corresponds to the probabilistic resources of the known

142. FRED HOYLE, THE INTELLIGENT UNIVERSE 19 (1983). 143. Gert Korthof, “A Memorable Misunderstanding”: Fred Hoyle’s Boeingstory in the Evolution/Creation Literature, WAS DARWIN WRONG?, Oct. 10, 1999 (updated Aug. 6, 2005) http://home.wxs.nl/’gkorthof/ kortho46a.htm. 144. See DNA and the Origin of Life, supra note 66, at 240. 145. Id. at 240. Storage within living cells is a chemical process. Molecules that join together in long chains are called “polymers.” When the chains are sufficiently long and are composed of heterogeneous molecules, the storage of information becomes possible. The polymers used by living cells to store genetic information are termed “polynucleotides.” There are within living cells two families of polynucleotides, which are deoxyribonucleic acid (DNA) and ribonucleic acid (RNA). 147. THE BLIND WATCHMAKER, supra note 26, at 139. 148. Id. at 140-41.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 173 universe.149 The “improbability of assembling and sequencing even a short functional protein approaches this universal probability bound,” and the improbability for longer proteins is far beyond the bound.150 Greenawalt’s flippant treatment of probability theory glosses over a large problem for neo-Darwinian theory. 8. Neo-Darwinism and the Issue of Falsifiability The preceding discussion of some of the gaps in neoDarwinism brings us to Greenawalt’s contention that the theory is falsifiable; in essence, disprovable. A common complaint leveled against most, if not all, religious statements is that one cannot think of evidence which might falsify them. Regardless of the empirical circumstance or situation under consideration, the idea of God can, its critics contend, always accommodate it. Their point is that the idea of God is essentially empty, because it explains too much. But might the very same point be made about neoDarwinism? David Berlinski observes that, within nature, there is radical individuality, oddness, quirkiness, and “just plain weirdness.”151 He points out that “[t]he male redback spider . . ., for example, is often consumed during copulation.”152 As he puts it, the male spider passes “from ecstasy to extinction in the course of one and the same act.”153 How does this act exemplify the principles of neo-Darwinian theory? Or, to take a step down the ladder of abstraction, what conceivable advantage might this act confer upon the male redback spider, since he is essentially committing suicide? Evolutionary theorists might reply that various organisms fashion through trial and error a multitude of responses to their environment; they keep what works and discard the rest. But, as Berlinski protests, this kind of reply is much too 149. WILLIAM A. DEMBSKI, DESIGN INFERENCE: ELIMINATING CHANCE THROUGH SMALL PROBABILITIES 175-223 (1998). The formulation of a “universal probability bound” is a way of answering the question of how improbable something has to be before it may be deemed implausible and eliminated as a reasonable explanation. 150. DNA and the Origin of Life, supra note 66, at 223, 242. 151. David Berlinski, The Deniable Darwin, in DDPE, supra note 5, 157, 161. 152. Id. 153. Id.

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174 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 broad and explains far too much, never providing us with a concrete answer to “why” this particular behavior was chosen. He writes, “[A] theory that can confront any contingency with unflagging success cannot be falsified. Its control of the facts is an illusion.”154 A neo-Darwinian reply similar to what Berlinski describes is more akin to a religious mantra than to a scientific explanation. The irony bears noting that Greenawalt criticizes intelligent design theory for telling us “what” a superior intelligence has done, but not “why” it has done it.155 Is the quality of explanation that neo-Darwinism gives for the sexual cannibalism of the redback spider, along with a host of other variant behaviors in nature, any more satisfactory?156 A thoughtful person might wonder what specific body of evidence it will take to falsify neo-Darwinian theory. It does not, as Behe argues, even begin to account for the molecular structure of life. The fossil record exhibits a relative paucity of intermediate animals, contrary to Darwin’s prediction; furthermore, most, if not all, animal phyla appeared during a brief moment of geological time and appear to constitute a radical leap in nature. Finally, the evidence for the theory that textbooks have long inculcated into students concerning similarities between embryos and natural selection in peppered moth experiments has been correctly labeled, at best, misleading and, at worst, fraudulent. America’s most acclaimed evolutionary paleontologist, Stephen Jay Gould, declared in 1980 that “[the neo-Darwinian synthesis] is effectively dead, despite its persistence as textbook orthodoxy.”157 Notwithstanding these points, scientists and others continue to Remembering that religious hail the theory as factual.158 154. Id. at 162. 155. Greenawalt insists, “One who lacks any idea why the creator acted certainly has no scientific explanation for what has occurred.” GREENAWALT, supra note 16, at 112. If he is implying that neo-Darwinism, by contrast, can always tell us “why,” he is simply mistaken. If he is daring to suggest that neo-Darwinism is not always obliged to tell us “why,” then he is guilty of the selective application of a standard, is he not? 156. Renowned philosopher of science, Karl Popper, who pioneered the “falsifiability” criterion of meaning, at one point in his illustrious career wrote that natural selection is an all-purpose explanation that accounts for everything and, hence, nothing. See DARWIN ON TRIAL, supra note 6, at 21. 157. Stephen Jay Gould, Is a New and General Theory of Evolution Emerging?, 6 PALEOBIOLOGY 119, 120 (1980). 158. Charles Krauthammer writes that “[e]volution is one of the most

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 175 statements have been criticized as nonfalsifiable, it is intriguing to reflect upon Lynn Margulis’s insightful pronouncement that th history will judge neo-Darwinian theory as simply “‘a minor 20 century religious sect within the sprawling religious persuasion of Anglo-Saxon biology.”“159 G. Neo-Darwinism and Methodological Naturalism One of the concerns, which most occupies Greenawalt about non-evolutionary theories of life like creationism and intelligent design, is that they are not naturalistic. He emphasizes repeatedly that science must look only for natural explanations. Teachers must therefore build confidence in students that “present uncertainties by no means show that the dominant theory is incapable of explaining everything important.”160 It is well to pause here and to ask: where in the theory of liberalism is it part of a public school instructor’s job description to tell students what they should think about “present uncertainties” regarding anything, including modern evolutionary theory? Such instruction is certainly not “factual knowledge.” If not knowledge, then what is its cognitive status? One thoughtful commentator, William A. Nord, whom Greenawalt himself quotes,161 describes methodological naturalism as “a faith”162 and warns of the danger that one’s commitment to it may result in “uncritically trusting that all of reality can be explained powerful and elegant theories in all of human science and the bedrock of all modern biology.” Charles Krauthammer, Let’s Have No More Monkey Trials: To Teach Faith as Science Is to Undermine Both, TIME, Aug. 8, 2005, at 78, 78. This is his artful manner of saying that neo-Darwinism is fact, while intelligent design theory is faith, which “has no place in science class.” Id. Keith Lockitch, a physicist and junior fellow at the Ayn Rand Institute, criticizes President George W. Bush’s suggestion in August 2005, that intelligent design theory also be taught in science class as “nothing more than a crusade to peddle religion by giving it the veneer of science.” Keith Lockitch, Bush Backs Teaching Intelligent Design, CORPUS CHRISTI CALLERTIMES, Aug. 4, 2005, at 11A. The assumption implicit in Lockitch’s criticism is that evolutionary theory alone, as fact, should be taught in science class. Id. 159. Charles Mann, Lynn Margulis: Science’s Unruly Earth Mother, 252 SCIENCE 378, 381 (1991). 160. GREENAWALT, supra note 16, at 115. 161. Id. at 16 n.25. 162. Warren A. Nord, Intelligent Design Theory, Religion, and the Science Curriculum, in DDPE, supra note 5, 45, 56.

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176 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 in naturalistic categories.”163 Nord reflectively comments, “[n]ow it may be that a measure of faith is essential to the practice of any intellectual tradition . . . , but public schools should not be in the business of nurturing faith, whether it be in religion, politics, economics, or science. A liberal education should encourage critical thinking . . . .”164 If Nord is correct that methodological naturalism boils down to a faith of sorts, one may then ask whether subscribing to this faith is reasonable. The question may be put as follows: if the function of our cognitive faculties is about insuring our survival, how do we know that the function also includes the production of true beliefs?165 The answer is that we do not. Darwin himself troubled over this problem and was doubtful. He expressed his doubt as follows: [W]ith me the horrid doubt always arises whether the convictions of man’s mind, which has been developed from the mind of the lower animals, are of any value or at all trustworthy. Would any one trust in the convictions of a monkey’s mind, if there are any convictions in such a mind?166 The most that a Darwinist or neo-Darwinist can say on this subject is that he or she has adopted a faith that may have nothing whatsoever to do with true beliefs. Neo-Darwinism is finally hoisted on its own pitard by placing a giant question mark over its own content. To be a neo-Darwinian means, first of all, admitting that any truth-claim that one may make is suspect. One may question why studying the biological sciences requires adopting a naturalistic method. Why, if as Behe claims, the “cumulative efforts to investigate the cell – to investigate life 163. Id. 164. Id. Nord’s comment is helpful insofar as it highlights that methodological naturalism is a faith, which must be held critically, if it is held at all, although one may disagree with the implication that it is feasible for public schools to remain neutral on all matters regarding the inculcation of faith. 165. I express my indebtedness to Alvin Plantinga for this observation. See Alvin Plantinga, Is Naturalism Rational?, in AN ANALYTIC THEIST: AN ALVIN PLANTINGA READER 72 (James F. Sennett, ed., 1998). 166. Charles Darwin, Letter to W. Graham, July 3, 1881, in THE LIFE AND LETTERS OF CHARLES DARWIN 284, 285 (Francis Darwin ed., D. Appleton and Co. 1896).

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 177 at the molecular level – is a loud, clear, piercing cry of ‘design!’,”167 should scientists have to turn their backs on this reality? It is not as if purpose and intelligence are otherwise unknown or mysterious in human experience.168 A theory that incorporates them might lead to the interrogation of experience in novel ways and to the production of fresh insights. Alfred North Whitehead adroitly reminded us that “theory dictates method.”169 By this, he meant that a theory determines what observations are significant and hence relevant to the solution of a particular problem.170 It accounts for the way in which the data of experience are analyzed. In order to gain new insights, one must interrogate experience with new theories, which will in turn dictate new methods. He emphasized that the secret to scientific progress is found in the development of large schemes of thought which are able to lend significance to what he termed our “chance experiences.”171 He pointed out, for example, that while many individuals had seen apples fall from trees, Newton had in mind the mathematical theory of dynamic relations; and though many had witnessed lamps swinging in temples and churches, Galileo was contemplating a vaguer form of the same theory; and while countless observers had watched animals preying upon one another, Darwin was thinking of the The inspiration of genius is in the Malthusian scheme.172 formulation of novel theory, which may result in a fresh way to look at experience.173 Far from being castigated as pariahs, 167. DARWIN’S BLACK BOX, supra note 6, at 232. 168. See William A. Dembski, Reinstating Design within Science, in DDPE, supra note 5, 403, 407. Dembski points out that the concept of design is found in fields such as forensic science, intellectual property law, insurance claims investigation, cryptography, and random number generation. Id. He argues that, in order to infer design in the biological world, we must establish complexity and specification. The former “ensures that the object in question is not so simple that it can readily be explained by chance. Specification ensures that the object exhibits the type of pattern that signals intelligence.” Id. at 409. 169. ALFRED NORTH WHITEHEAD, THE ADVENTURE OF IDEAS 283 (1933). 170. See id. 171. ALFRED NORTH WHITEHEAD, THE FUNCTION OF REASON 72-73 (Beacon Books 1958) (1929). 172. Id. 173. For a thorough discussion of Whitehead’s approach to philosophic and scientific method, see L. Scott Smith, Critical Observations on Whitehead’s Approach to Speculative Metaphysics in the Light of Kant’s Criticism 73-148

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178 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 theorists with approaches other than that of methodological naturalism should be welcomed into the science classroom in the hope of providing novel insights for discussion and analysis.174 Teaching in utramque partem, or on both sides of the question, is a venerable educational tradition. There is no reason why evidence cannot be analyzed from more than one theoretical perspective. William Provine, a prominent and outspoken evolutionist at Cornell University, has refused in his class on evolutionary biology to dismiss opposing points of view175 and has even invited Phillip E. Johnson, a searing critic of neo-Darwinism, to participate in the class. Provine assigns Johnson’s book, Darwin on Trial, for his students to read. The result has been well-received by all.176 Yet Greenawalt’s concern to safeguard methodological naturalism at all costs, to inculcate its precepts, to monitor carefully what may and may not be addressed in the classroom and, even then, to exercise a severe vigilance over the extent to which teachers may respond to particular questions, hardly brings to mind an atmosphere of free and open inquiry in a broad liberal tradition, but rather the very opposite of it.177 While he is willing to give students an indication of the problems with evolutionary theory, his paramount concern seems to be that of furthering a particular agenda by scrutinizing what the student ultimately believes. Education is again hobbled by political correctness. IV. EXAMINING AND ANALYZING CASE LAW

A. Teaching Evolution in Public School The United States Supreme Court first addressed the (1976) (unpublished Ph.D. dissertation, Columbia University) (on file at Columbia University Office of Dissertations). 174. Phillip E. Johnson wrote a delightful essay on Paul Feyerabend, a premiere scientist of our time, who “denied that there is any single form of reasoning that can be labeled ‘the scientific method’ and asserted brazenly that the basic rule in science is ‘anything goes.’” PHILIP E. JOHNSON, OBJECTIONS SUSTAINED: SUBVERSIVE ESSAYS IN EVOLUTION, LAW & CULTURE 121, 122 (1998). 175. William Provine, Design? Yes! But Is It Intelligent?, in DDPE, supra note 5, 499, 509-11. 176. DARWIN ON TRIAL, supra note 6, at 124-25. 177. GREENAWALT, supra note 16, at 115.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 179 teaching of evolution in public schools in Epperson v. Arkansas.178 In 1928, Arkansas enacted an “anti-evolution” statute, prohibiting teaching the theory in its public schools and universities. In 1964, the Little Rock school system adopted and prescribed for the coming year a biology textbook, which included a chapter on evolutionary theory. Susan Epperson, a tenth-grade biology teacher, when confronted with having to teach from the statutorily prohibited text, brought an action to have the Arkansas statute declared void.179 The Court struck the statute down on the ground that it violated the Establishment Clause of the First Amendment. The crucial fact, as the Court saw it, was that the statute disallowed in the classroom a segment “from the body of knowledge” because of its submission to a fundamentalist interpretation of the creation story in the Book of Genesis.180 The Court, speaking through Justice Fortas, stressed that the state’s position toward religion should be a neutral one. Justice Fortas stated, “The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” 181 He further emphasized that there can be no toleration of “laws that cast a pall of orthodoxy over the While a state has the right to prescribe a classroom.”182 curriculum for its public schools, that right must be executed in accordance with the dictates of the First Amendment.183 The raison d’etre of the Arkansas statute was nothing more than “fundamentalist sectarian conviction”184 and could not be defended as “an act of religious neutrality.”185 In a concurring opinion, Justice Black expressed the view that the statute should have been voided for vagueness, not for violating the Establishment Clause.186 Justice Black was not willing to assign a motive to the statute, because he thought it too

178. 393 U.S. 97 (1968). 179. See id. at 98-100. 180. Id.at 103. 181. Id. at 104. 182. Id. at 105 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)). 183. Id. at 107. 184. Id. at 108. 185. Id. at 109. 186. Id. at 112 (Black, J., concurring).

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180 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 difficult to ascertain the motive behind the statute’s enactment.187 He also astutely raised a question regarding the doctrine of neutrality in its application to the teaching of evolution. “If the theory [of evolution] is considered anti-religious . . .,” he reasoned, “how can the State be bound by the Federal Constitution to permit its teachers to advocate”188 it to schoolchildren? Justice Black continued, “Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an antireligious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion.”189 Comparing and contrasting the perspectives of Justices Fortas and Black on the issue is illuminating. Both Justices were liberal voices on the Court who doubtless saw in the case an issue of religious freedom. But Black was reluctant to determine by judicial fiat that the doctrine of evolution constitutes “knowledge,” while Fortas was not. When any doctrine is assigned by judicial decision to the world’s “body of knowledge,” the doctrine ceases, for traditional and modern forms of liberal thought, to be a matter of mere private cognizance. Black saw the danger and was circumspect in his concurrence. He did not state that neoDarwinism is nonfactual; he was not ready or willing to do that. Yet he was fully aware that the theory conflicts with many Americans’ religious convictions, and he did not wish to negate those. It was as if he stepped over a trap. One question raised by his opinion is the following: is it the proper role of the federal judiciary to decide what can and can not pass for “knowledge” in public schools? Or, phrased another way, should the Supreme Court decide what schoolchildren should be taught and urged to believe about the origin and development of human life? An affirmative response allows the Court to place the power and prestige of the federal government behind a doctrine with undeniable religious implications, which the majority of the American people do not accept. For those who disagree with neoDarwinism, the Court’s endorsement of it smacks of a religious (or anti-religious) establishment. Justice Black was correct: the

187. 188. 189.

See id. at 113. Id. Id. (Black, J., concurring).

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 181 majority decision is indeed “troublesome” in this respect.190 B. Teaching Creationism in Public School In Edwards v. Aguillard,191 the Court struck down a Louisiana statute providing for the teaching of “creation science,” which was defined by the statute as “the scientific evidences for creation and inferences from those scientific evidences.”192 Although no school was required to teach either evolution or creationism, the statute provided that, if either were taught, both must be.193 The Court decided that the statute lacked a clear secular purpose and was for that reason a violation of the Establishment Clause. Justice Brennan, who wrote for the majority, stated “[t]he goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science.”194 The statute, insisted Justice Brennan, does not expand academic freedom in the least, because it “does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life.”195 He emphasized that, had the Louisiana Legislature really been interested in academic freedom, “it would have encouraged the teaching of all scientific theories about the origins of humankind.”196 Citing the majority opinion in Epperson, the Justice made clear that the First Amendment does not permit a State to tailor the science curriculum to the mandates of religious

190. No decision more than Epperson illustrates the nonfeasibility of religion-neutral jurisprudence, which, interestingly enough, was set forth by Justice Black in Everson v. Board of Education. 330 U.S. 1 (1947). Black declared that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers . . . .” Id. at 18. For a discussion of religion-neutral jurisprudence, see L. Scott Smith, “Religion-Neutral” Jurisprudence: An Examination of Its Meanings and End, 13 WM. & MARY BILL RTS. J. 815 (2005) (hereinafter ‘Religion-Neutral’ Jurisprudence). 191. Edwards v. Aguillard, 482 U.S. 578 (1987). 192. Id. at 611 (Scalia, J., dissenting). 193. See id. at 586. 194. Id. 195. Id. at 587. 196. Id. at 588.

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182 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 sects and their dogmas.197 That, stated Justice Brennan, was precisely what Louisiana was attempting to accomplish by this statute.198 Justice Scalia, dissenting, admitted “[i]t is undoubtedly true that what prompted the legislature to direct its attention to the misrepresentation of evolution in the schools . . . was its awareness of the tension between evolution and the religious beliefs of many children.”199 But he was quick to highlight “that a valid secular purpose is not rendered impermissible simply because its pursuit is prompted by concern for religious sensitivities.”200 The people of Louisiana, he stressed, are entitled to convey to their schoolchildren the gaps and deficiencies in the theory of evolution, “just as Mr. Scopes was entitled to present whatever scientific evidence there was for it.”201 Justice Scalia contended, based upon the evidence before the Court, it would be reasonable to assume that a legitimate concern of the statute was “‘academic freedom,’” which the statute’s legislative sponsor understood to mean “freedom from indoctrination.”202 If the goal of education is for students to learn how to listen to ideas, to evaluate them, and to decide what they think and why, it is difficult to fathom how subjecting them to either evolutionary theory or to creationism is misguided.203 It is possible that, by schools’ juxtaposing the two theories, many students might 197. Id. at 543 (quoting Epperson v. Arkansas, 393 U.S. 97, 106 (E.D. Ark. 1968)). 198. Id. at 596-97. 199. Id. at 633 (Scalia, J., dissenting). 200. Id. 201. Id. at 634. 202. Id. at 627. 203. Greenawalt criticizes the dissent in Edwards. See GREENAWALT, supra note 16, at 123-24. He questions whether the Louisiana Legislature had a legitimate secular purpose for the statute, since teachers were free not to teach either evolutionary theory or creationism. In Epperson v. Arkansas, Justice Black explicitly suggests that, in order to avoid the high level of emotion and controversy which accompany the subject of evolution, deleting it from the curriculum altogether might be the preferred solution. 393 U.S. 97, 113 (1968). Additionally, the Justice proposed that eliminating the theory from the curriculum might make sense in order to foster genuine neutrality toward religion. Id. The Louisiana statute did nothing more egregious than to follow Justice Black’s proposal. Query: Would Greenawalt say of Justice Black’s reasoning, “The law’s allowing of a failure to teach either theory is hard to explain except by religious objections to evolution”? GREENAWALT, supra note 16, at 123. I doubt it.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 183 themselves come to regard creationism as poorly supported and nonscientific, if indeed it is. If creationism is as monstrously deficient as Greenawalt and many others argue, what better way to insure its eventual defeat than by exposing students to it? But the question, again, is whether the decision is one for a paternalistic federal judiciary to make, thereby short-circuiting the student’s educational process. Justice Brennan stated the Court was open to the presentation of any “scientific” theory of the origin and development of life in science class, but his expression of toleration and open-mindedness begged important questions.204 He neglected to specify what the term “scientific” means and who will decide it. If the term is understood to include only approaches, which utilize methodological naturalism and are faithfully endorsed by the authoritative “priesthood”205 of the National Academy of Science as well as by the academic elite, then these conditions will effectively eliminate from the science curriculum not only creationism and intelligent design theory, but also all theories which in any measure invoke the concept of mind, An purpose, intelligence, and especially God206 in science. empirical approach to science will always, under these restrictions, be correlated with the adoption of naturalistic philosophy. The scientific circle will be drawn to encompass only those methods of interrogating experience that possess naturalistic underpinnings. Because Edwards fails to address this issue, it is unclear how it will be appropriated as a precedent. Justice Brennan’s opinion assumed that neo-Darwinism is science and that creationism is religion. The former is about fact 204. Edwards, 482 U.S. at 594. 205. “Priesthood” is Phillip E. Johnson’s term, which I believe accurately embodies the notion of the heteronomous authority of elite cultism, constituting an ideal description of the NAS as well as academe. See PHILLIP E. JOHNSON, REASON IN THE BALANCE: THE CASE AGAINST NATURALISM IN SCIENCE, LAW & EDUCATION 198 (1995). 206. See David DeWolf, Stephen C. Meyer & Mark E. DeForrest, Teaching the Controversy: Is It Science, Religion, or Speech?, in DDPE, supra note 5, 59, 92. Here the authors argue that “the Court’s ruling in Edwards does not apply to design theory and can provide no grounds for excluding discussion of intelligent design from the public school science curriculum.” Id. I do not think that Edwards should give proponents of intelligent design such sanguine hope, precisely because the majority opinion is not clear about what “science” is.

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184 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 and knowledge, while the latter is about subjective belief. Justice Brennan’s assessment was an oversimplification. As we have seen, neo-Darwinism has profound implications for religious understandings of the meaning of human life and has itself been termed “religious.” Riddled with many troubling questions, it hardly rises to the level of “scientific fact” in the same sense as a statement such as “blood is pumped from the human heart.” Justice Brennan’s reasoning might be interpreted to mean that propositions, such as “all design in the biological world is merely apparent” and that “human life appeared on the earth without either purpose or direction,” are not theological while their opposites are. If this interpretation of his reasoning does not lead inexorably to the threat of religious establishment, then nothing does. Justice Scalia was not willing to strike down the Louisiana statute, because he was convinced that the legislature had acted from a secular purpose to teach the controversy to students and to allow them to decide. Students, by being taught on both sides of the issue, may still learn evolutionary theory, but they will neither be told that it is factual nor that their religious views are false. Students who, by contrast, accept the theory will have the opportunity to learn why many oppose it and to develop a rejoinder to the opposition. Those who think Justice Scalia’s solution is imprudent and misinformed appear to be the same ones who regard neo-Darwinism as largely, if not entirely, correct. Their certainty is not, however, shared by the preponderance of the American public. For this reason, comparisons of creationism and intelligent design theory with belief in flat-earth doctrine, astrology, and alchemy are inapposite. There is an overwhelming consensus throughout all reaches of American society that the earth is not flat, that the location of the stars at any given moment is not determinative of one’s life, and that base metals cannot be changed into gold. These viewpoints are not open and living options of thought. Although there is also a consensus in American society against the theory of evolution in one or more of its aspects, the commitment of scientists and other thoughtful people to the theory continues to give it life. The exploration and discussion of a theory that is viable, although vigorously disputed, belongs in the public marketplace of ideas. People should be not

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 185 only allowed, but also encouraged, to study and to discuss the theory, especially when it concerns the origin of life with deepseated and far-reaching consequences for how people understand themselves and others. This liberty is John Stuart Mill’s legacy to us. C. The Definition of “Science” In McLean v. Arkansas Board of Education,207 a civil rights action was brought to enjoin the enforcement of an Arkansas statute requiring public schools to give balanced treatment to creation science and to evolution theory. The Court ordered a permanent injunction208 and declared that “[t]he State failed to produce any evidence which would warrant an inference or conclusion that . . . anyone [had] considered the legitimate educational value . . .”209 of the statute. The Court opined that “[e]volution does not presuppose the absence of a creator or God . . . .”210 Evolutionary theory was further acknowledged by the court to be the “cornerstone of modern biology.”211 These statements, as significant as they are, are not the crux of Judge Overton’s opinion. The court went on to define the essential characteristics of “science.” They were set forth as follows: (1) being guided by natural law, (2) explained by reference to natural law, (3) testable empirically, (4) tentative in its conclusions, and (5) falsifiable.212 Evolutionary theory constituted science according to these criteria, while creationism was religion.213 Attempting to define science in terms of a set of abstract demarcation criteria is a precarious endeavor. Consider, for a moment, the criteria that science must be tentative in its conclusions and falsifiable. When Newton first formulated his theory of universal gravitation, he made a number of predictions, the truth of which he was unable to confirm, concerning the position of planets. Rather than telling himself and others that 207. 529 F. Supp. 1255 (E.D. Ark. 1982). 208. Id. 209. Id. at 1264. 210. Id. at 1266. 211. Id. at 1273. 212. Id. at 1267. 213. See id. at 1274.

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186 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 his theory was falsified and that his predictions were merely tentative, he unyieldingly held to his theory, refining some of his peripheral assumptions (such as that the planets were perfectly spherical). The explanatory flexibility of the theory, upon encountering falsifying data, did not bar its entitlement to be called “science.”214 The McLean court emphasized that the propositions of creationism could not be falsified. If that were true, it would follow that creationism is devoid of empirical assertions. That is clearly not the case. Creationists assert that complex organisms suddenly appeared in geological time and that the fossil record illustrates it. They also assert that there is limited variation among species. These are claims that are clearly falsifiable.215 The requirement that a proposition must be falsifiable in order to qualify as science raises another thorny issue: specifically, how can this requirement itself be falsified? The requirement does not withstand the challenge of reflexive inquiry. This fact is a reminder that the McLean requirements are philosophical, not scientific. The court, far from describing the character of scientific knowledge, was unwittingly investing in a philosophical point of view, which is far from invulnerable. What moral right does a federal court have to dictate a philosophy of knowledge? In a liberal state, that right belongs to each and every individual, does it not? V. A BRIEF STATEMENT ABOUT THE JURISPRUDENCE OF RELIGION AND TEACHING EVOLUTIONARY THEORY

In a recent article, I attempted to recast, in a creative synthesis, the jurisprudence of religion in an effort to accommodate the basic political points of view allowable by the Religion Clauses. Insights from classical or traditional liberalism, communitarianism, revised liberalism, and de facto establishmentarianism are brought together in my jurisprudential

214. See David DeWolf, Stephen C. Meyer & Mark E. DeForrest, supra note 206, at 76 (citing Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in SCIENTIFIC KNOWLEDGE: BASIC ISSUES IN THE PHILOSOPHY OF SCIENCE 173, 175, 192 (J.A. Kouvray ed., 1987)). 215. See David DeWolf, Stephen C. Meyer & Mark E. DeForrest, supra note 206, at 77 (quoting Larry Laudan, Science at the Bar – Causes for Concern, in BUT IS IT SCIENCE 351-52 (M. Ruse ed., Prometheus Books, 1988)).

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 187 approach to religion.216 My discussion here will seek briefly to show how that jurisprudential approach to religion addresses the teaching of neo-Darwinism in public schools. A. Beginning Assumptions As a preface to the discussion, I must highlight several assumptions, which I accept as factual. First, neo-Darwinism is a theory that characterizes the origin and development of life in a way that is fundamentally at odds with the religious beliefs of many people. Secondly, these people do not accept what they regard as the anti-religious implications of the theory. Thirdly, the theory contains significant evidentiary gaps or deficiencies. Fourthly, it is based upon adductive reasoning, or the principle of inference to the best explanation, with the “best” explanation being a matter of intense controversy. B. Revised Liberalism: Discussion and Debate in the Public Square When one accepts the foregoing assumptions, there is room for honest discussion and debate. Citizens should not be under a gag-order in the utilization and enjoyment of their public institutions. Public school instructors who teach evolutionary theory should be able to express whatever doubts, if any, they may entertain about the theory or about any alternative theory, provided that their objective is to compel students to think critically rather than to proselytize them to a particular point of view (or faith). Greenawalt’s suggestion, previously noted, that science teachers should curb their explanations regarding possible order in evolutionary development because of inferences students may draw about creative intelligence is shockingly antithetical to the best and most noble tradition of education in a liberal state. If a student in high school, for example, spends her summer reading, let us say, The Origin of Species, The Blind Watchmaker, and Darwin’s Black Box, and is sufficiently enthusiastic about the topic of whether design in the biosphere is real or apparent to propound questions regarding the subject, the instructor should fully address her questions, and may even do so in the presence of

216.

From Typology to Synthesis, supra note 14.

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188 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 the rest of the class if it will assist other students to understand the issues involved. Through the dialectical point-counterpoint, give-and-take of the educational process, students will be able to avail themselves of the opportunity to forge their own respective views concerning the truth or falsity of neo-Darwinian theory. I do not dispute that they should study it in a serious manner and be informed that it is currently the dominant theory among scientists. But it is not the job of public school teachers to manipulate the student’s intellectual process by presenting only one perspective on an admittedly controversial topic, when a number of viewpoints are embraced in the student population and the community where the school is located and funded, not to say in the scientific community itself. At least part of my point concerns effective pedagogy; a teacher must meet the students where they are and, as William Provine has learned, “[v]iewing half or more of your students as ‘the enemy’ is weird.”217 He gives his students a forum to discuss their views and makes an effort to help them to think critically about their views.218 The remainder of my point concerns the character of the study itself – it is adductive. This means that, given the gaps in the evidentiary record and the multiplicity of questions that can be raised at virtually every turn, judgments can reasonably differ concerning which inference is best. There is no room for dogmatism.219 Courts should facilitate open and honest intellectual inquiry. When they foreclose public discussion and debate on an intensely disputed topic such as evolutionary theory, official state

217. William Provine, supra note 175, at 511. 218. Id. 219. Or so it would appear. An inquisitional spirit is still alive and well, even among scientists. Punishment is reserved for those who veer from orthodoxy and the established doctrine of the origin of life. Consider the recent case of evolutionary biologist, Richard Sternberg who, while editor of Proceedings of the Biological Society of Washington, accepted for publication an article that made a case for “intelligent design.” An independent factfinding agency found that senior scientists at the National Museum of Natural History not only defamed Sternberg, but ran him from his position as a Smithsonian research associate. See Michael Powell, Editor Explains Reasons for ‘Intelligent Design’ Article, WASH. POST, Aug. 19, 2005, at A19.

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 189 pronouncements pre-empt individual inquiry and decision. The result is often citizen resentment and cultural war. C. De Facto Establishmentarianism: Religious and Moral Values in Political Outcomes The citizenry, through its elected representatives, should decide fiercely contested curriculum issues. Citizens can make their most persuasive arguments and give their best reasons concerning how the science curriculum should be fashioned. It is the responsibility of elected representatives to execute the will of their constituents. Religious and moral beliefs will certainly shape political outcomes; neutrality is not now, nor has it ever been, an option.220 In the decision-making process of a liberal state, some values will be chosen over others. Public school curricula will reflect this fact. As I have argued elsewhere, this country’s religious values are undeniable and are sure to influence political choices.221 There is no reason why a vital and dynamic relationship between religion and science should be lamented because, as Greenawalt himself maintains, viewing the two disciplines as separate discourses founders on the reality that, for many, there is common ground between them. No citizen can ultimately live in rigid dichotomies, where science is cut off from religion and morality. The challenge for the enlightened citizen is to understand the many varieties and cascades of experience as 220. See “Religion-Neutral” Jurisprudence, supra note 190. Jay D. Wexler argues, by implication, that evolutionary theory is religion-neutral. Cf. Jay D. Wexler, Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools, 49 STAN. L. REV. 439, 456 (1997). Wexler, writing of intelligent design theory states, “[D]espite its muddled Establishment Clause jurisprudence, the Court has consistently applied the most exacting scrutiny in the context of public schools and would surely strike down any attempt to communicate a religious belief in the public school classroom.” Id. at 456. The implicit argument that neo-Darwinian theory does not convey a religious (or anti-religious) message is an implausible one. So why is neo-Darwinian theory permissible and intelligent design theory is not? If an intelligent source for life is religious, why is a non-intelligent source for life not nonreligious or anti-religious? Both would be unconstitutional under Everson. Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947). Correct? Wexler’s opposition to intelligent design theory reflects little more than a thinly veiled political agenda. There is nothing improper about having a political agenda so long as the fact is admitted and there is not an attempt to describe it as religion-neutral. 221. From Typology to Synthesis, supra note 14.

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190 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:143 parts of an integrated whole. Attempting to meet the challenge results in only tentative and asymptotic steps to ultimate truth, but this reality in no way discounts the significance of the challenge. Given the large diversity of opinion regarding neo-Darwinian theory and the way in which it challenges many religious beliefs, there is nothing shocking about the prospect of a State policy allowing science teachers to bring before students a wide range of theoretical perspectives from respected scientists, including some who espouse evolutionary theory and others who argue against it. D. Communitarianism: The Strengthening of Associational Bonds There are numerous groups of various stripes, who are interested in the manner in which the origin of life is taught in this country’s public schools. Regardless of the organization, whether the National Center for Science Education (promoting evolutionary theory) or the Discovery Institute (advocating intelligent design), it serves to foster democratic life by fueling discussion and debate, while at the same time strengthening associational bonds between citizens. When they join together to make common cause in behalf of an idea that inspires them, they learn the virtues of civility and cooperation. Federal courts, by exercising judicial restraint, can empower the citizenry. When courts, as elite bodies of men and women, pronounce from Mt. Olympus on the truth-claim of an intensely contested intellectual issue, they obstruct the individual’s right to decide. As individual citizens feel increasingly disempowered, they become lethargic in the political process; associational bonds weaken, and democratic life suffers. E. Classical Liberalism: The Autonomous Individual in the Liberal State A government of, by, and for the people means entrusting to them the right to decide, even if wrongly, how public school curricula are structured. Such a decision must include the guarantee that each student will be afforded a full and fair opportunity to determine what he or she believes about any matter that incites intellectual controversy. Just as there are no stupid questions when honestly asked, there is no illegitimate

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2005]TEACHING NEO-DARWINISM IN PUBLIC SCHOOLS 191 controversy in which there is sincere engagement. It should follow that the student has a right to hear, presented as objectively as possible, the evidence on evolutionary theory and any of its challengers (which have substantial support and viability within the student community), and to assess the truth of the matter in his or her own way. No student should be expected to deny his or her religious beliefs in order to study science. There should be no official position, propounded and issued by federal authority, regarding what constitutes “science” or “knowledge,” or what can or cannot be taught in public schools, provided that schools remain generally free and open institutions. When various points of view are studied and discussed, it may happen that a student will either modify his or her religious views or renounce them altogether. But such decisions belong exclusively to the student, whose autonomy must be honored and respected in a liberal state.

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Notes & Comments Unlocking America’s Courthouse Doors: Restoring a Presumption of First Amendment Access as a Means of Reviving Public Faith in the Judiciary [T]he only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their actions and fearless comment upon it.1 I. INTRODUCTION

The courthouse door was once open. Crossing the threshold allowed the public and the media to carefully scrutinize court proceedings and documents. Although the door was always left ajar, it certainly could be locked when a defendant’s Sixth Amendment rights were in jeopardy or when closure was necessary to preserve “higher values.” In the wake of over twenty years of court decisions interpreting Press-Enterprises Co. v. Superior Court, the seminal Supreme Court decision which afforded a presumption that court proceedings and documents shall be open for public review, this presumption has been swept under the doormat. The courthouse door in many cases has slammed shut. The media waits outside, begging for a key. Fourteen simple words, carefully chosen2 and laid out in the First Amendment to the United States Constitution, do no justice to the immense powers couched within its grant. The First 1. A.T. MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 398 (1956). 2. See LUCAS A. POWE, JR., THE FOURTH ESTATE AND THE CONSTITUTION 44-47 (1991).

193

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194 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 Amendment provides, in relevant part, “Congress shall make no law . . . abridging the freedom of speech, or of the press.”3 Beyond the Constitution’s explicit guarantee that Congress is without power to intervene and restrict publication,4 it is no secret that courts have continually interpreted the First Amendment as promoting the media’s watchdog role and encouraging both comment on and criticism of governmental affairs.5 Access to the judicial system is essential to enabling the press to maintain its watchdog role, allowing it to cast a careful eye on the third branch of government to ensure that the system’s integrity is upheld.6 Although the First Amendment’s explicit language does not afford the public or the media a right of access to the judicial system,7 the United States Supreme Court has consistently held that “[t]he First Amendment is . . . broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights.”8 Access to the judicial system, instrumental in enabling the media to enjoy its First Amendment 3. 4.

U.S. CONST. amend. I. See LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION 207-09 (1988). 5. WARREN FREEDMAN, PRESS AND MEDIA ACCESS TO THE CRIMINAL COURTROOM 11 (1988). The Supreme Court has also held that the First Amendment rights of free speech and free press are among the fundamental liberties protected by the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925). 6. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596 (1980) (plurality) (Brennan, J., concurring) (“[P]ublic access to trials acts as an important check, akin in purpose to the other checks and balances that infuse our system of government.”). 7. Sigman L. Spichal, The Right to Know, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 3, 11-12 (Charles N. Davis & Sigman L. Splichal eds., 2000) (“A right of the public to know about the workings of government, as such, is not stated in the U.S. Constitution. But the framers of the Constitution did include provisions for making government accountable to the people . . . . While these requirements for government accountability seem limited by modern access standards, they nonetheless reflected the fundamental principle that government should not function in secret or withhold information without good cause.”). 8. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (citing Richmond Newspapers, Inc., 448 U.S. at 579-80). See Dan Paul & Richard J. Ovelmen, Access, 2 COMM. L. 7 (Practising Law Inst. 1999). See also DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986 523 (1990) (“The right to speak is of little value if one has nothing to say.”).

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right to comment on and criticize government affairs, falls within the First Amendment’s reach; therefore, as the United States Supreme Court has concluded, the First Amendment vests the media and the public with a qualified access right to the judicial system.9 Apart from a general common law right of access to criminal proceedings that has long been recognized in the United States,10 since its 1980 landmark decision Richmond Newspapers, Inc. v. Virginia,11 the United States Supreme Court has recognized a qualified First Amendment right to attend criminal trials.12 This First Amendment access right is unique. Unlike the common law right of access, which grants the trial judge broad discretion in deciding whether access is warranted, the First Amendment access right grants a presumption that the proceeding or document will be open to public scrutiny.13 The proceeding or document may be closed or sealed when countervailing interests are at stake, but in First Amendment access cases the party seeking closure carries the burden of demonstrating that closure is necessary.14 Conversely, in common law access cases, the party seeking access carries the burden of demonstrating a need for the information.15 In recognizing a First Amendment right of access to criminal trials, the Richmond Newspapers plurality reasoned that the First Amendment’s explicit guarantee of free speech and a free press would lose its meaning if the press was banished from the courtroom. The plurality stated that “[f]ree speech carries with it some freedom to listen . . . . What this means in the context of 9. Richmond Newspapers, Inc., 448 U.S. at 580 (plurality); Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 8 (1986); but see POWE, supra note 2, at 198 (“The press’s right of access to people and places has proven more difficult to establish than the right to publish . . . . ”). 10. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (recognizing that the public has a common law right “to inspect and copy public records and documents, including judicial records and documents,” but that right is not absolute). 11. 448 U.S. 555 (1980) (plurality). 12. See id. at 580. 13. Lynn B. Oberlander, Note, A First Amendment Right of Access to Affidavits in Support of Search Warrants, 90 COLUM. L. REV. 2216, 2242-44 (1990). 14. Id. at 2243. 15. Id.

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196 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 trials is that the First Amendment . . . prohibit[s] government from summarily closing courtroom doors which had long been open to the public at the time the Amendment was adopted.”16 Despite this pointed language, courts have been quick to note that when a First Amendment access right is recognized, it is certainly not absolute.17 Rather, courts define this as a qualified or limited right that may be trumped by a defendant’s competing Sixth Amendment18 rights or when closure is “essential to preserve higher values” so long as the closure is narrowly tailored to meet that interest.19 Extending this qualified right of access to include proceedings other than criminal trials, in 1986 the Supreme Court delineated a two-part test to determine which proceedings are afforded a qualified right of access.20 The test, derived from Justice Brennan’s concurring opinion in Richmond Newspapers, involves “two complementary considerations.”21 The first prong, commonly referred to as the history (or experience) prong, considers whether the place and process have historically been open to the press and general public because a “‘tradition of accessibility implies the favorable judgment of experience.’”22 Meanwhile, the second prong, known as the logic (or positive functional role) prong, evaluates “whether public access plays a significant positive role in the functioning of the particular process in question.”23 Following the Court’s announcement that there is a qualified First Amendment access right to some judicial proceedings, lower federal and state courts have taken varying approaches when defining and applying this right.24 The most frequently applied

16. Richmond Newspapers, Inc., 448 U.S. at 576 (plurality). 17. See Press-Enter. Co. v. Superior Court (Press-Enter. I), 464 U.S. 501, 510 (1984). 18. U.S. CONST. amend. VI. 19. See Press-Enter. I, 464 U.S. at 502; infra Part II. See also MATTHEW D. BUNKER, JUSTICE AND THE MEDIA, RECONCILING FAIR TRIALS AND A FREE PRESS 1, 94-115 (1997). 20. Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 9 (1986). 21. Id. at 8. 22. Id. (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 574, 605 (1982) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (plurality) (Brennan, J., concurring)). 23. Id. (citing Globe Newspaper Co., 475 U.S. at 606). 24. See infra Part III. See also Joseph D. Steinfield & Jeffrey J. Pyle,

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approach is to define the two-prong test as a “conjunctive test,” whereby a right of access is only recognized when both prongs are satisfied.25 Indeed, once a qualified right of access is recognized, the proceeding or document at issue will remain open so long as a defendant’s Sixth Amendment rights26 are not jeopardized or other “higher values” do not warrant closure. Through this stringent approach, courts have eviscerated the Framers’ original intention of affording a presumption of access as a means of promoting public discourse and media oversight of governmental affairs and have instead adopted a test that, by design, continually denies access to modern judicial devices.27 The First Amendment, aimed at fostering careful scrutiny of the three branches to ensure the utmost integrity in the functioning of governmental processes,28 is significantly curtailed when courts apply the conjunctive test. Ultimately these decisions reflect lower courts’ recent moves away from a presumption of openness. Unfortunately, the United States Supreme Court has not yet taken up the task of allaying the courts’ confusion. The overarching need for public oversight is at its apex when courts utilize modern judicial proceedings or documents in their adjudicative or administrative roles. The public is more likely to trust judicial proceedings and documents that have a longstanding history of carrying out the duties of the third branch of government, while distrusting those without proven success. Despite the public’s need and desire to monitor proceedings and documents in their infancy, the conjunctive test automatically denies access to these proceedings because it is rarely the case that a new proceeding or document will pass the courts’ history prong. The public’s confidence in the judiciary, concededly low, may be partially caused by a lack of access. Undoubtedly the Recent Developments in the Law of Access – 2003, 1 COMM. L. 16 (Practising Law Inst. 2003) (“Application of these principles isn’t as easy as it looks.”). 25. See infra Part III.A. The test, mandating that both prongs be satisfied before a qualified right of access vests, will be referred to hereinafter as the conjunctive test. 26. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” U.S. CONST. amend. VI. 27. See infra Part IV. 28. KENT R. MIDDLETON, WILLIAM E. LEE & BILL F. CHAMBERLIN, THE LAW OF PUBLIC COMMUNICATION 28-30 (6th ed. 2004).

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198 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 public grapples with trusting what is shielded from its view.29 Reinterpreting the Supreme Court’s test as disjunctive, which reflects the Framers’ objectives by affording a presumption of openness to judicial proceedings and documents, both new and old, is necessary to restore public faith in the judicial system.30 Although less frequently applied, some courts have taken this approach and interpreted the Supreme Court’s test as disjunctive, finding a presumption of access when either prong is satisfied.31 This approach allows courts to afford access to modern proceedings and documents under the logic prong alone, thereby carrying out the Framers’ intention of affording the media access to the governmental processes necessary to carry out its responsibilities to the public under the First Amendment.32 The disjunctive test also preserves the history prong, helping the judiciary easily determine which proceedings fall within the scope of First Amendment protection and creating uniformity in court decisions.33 This Comment illustrates the shortcomings of the courts’ history and logic prongs and adopts the disjunctive test as a workable means of determining when access should be presumed. Part II examines the original test announced in Richmond Newspapers, and applied in Press-Enterprise II, for determining when there is a qualified right of access to the judicial proceeding in question. Part III analyzes courts’ varying interpretations of the test and urges that the leading interpretation defies the Framers’ intentions by curbing what is otherwise a presumption of openness to court proceedings and documents. Part IV argues that the Supreme Court’s test should be applied as disjunctive, whereby satisfaction of either the history or logic prong will vest the media and the public with a qualified First Amendment access right. Finally, Part V illustrates the impact of closure on the public’s trust in the judiciary and perceptions of the third branch of government’s fairness and integrity. 29. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980) (plurality). “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Id. 30. See infra Part II. 31. See infra Part III.B, Part IV.A.1. 32. See infra Part IV.A.2. 33. See infra Part IV.A.1.

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II. THE TEST GENERALLY

For over twenty years courts have recognized the First Amendment as a vehicle for promoting access to court proceedings and documents.34 In its 1980 landmark decision, Richmond Newspapers, Inc. v. Virginia,35 a plurality of the United States Supreme Court stood convinced that the Constitution’s Framers intended to afford a qualified First Amendment access right to criminal trials.36 The decision marked the first time that the Supreme Court recognized that the Framers, in adopting the First Amendment, intended to afford a presumption of openness to court proceedings, because without such a right the Framers’ goals of an unabridged press could never be fully implemented. A. Framers’ intent A glimpse at history is instructive in understanding the Framers’ goals. In the years preceding adoption of the First Amendment, debate was strong primarily in Virginia but also in neighboring colonies, over the need for a Bill of Rights.37 From 1787-1791 Federalists and Antifederalists divided over whether a Bill of Rights was even necessary. Federalists believed it was superfluous to instruct Congress not do that which it had no power to do anyway.38 Antifederalists, concerned with federal government overreaching and broad interpretation of the necessary and proper clause, led the fight for the Bill of Rights, specifically, the First Amendment.39 Colonial Americans insisted that “sovereignty derived from the people’s continuous assent,” and continuous assent meant continuous scrutiny.40 “The sovereign people needed information and the ability to discuss freely how their government was performing.”41 Against this backdrop the Antifederalists’ persistence and persuasion paved

34. See CURRIE, supra note 8, at 525. 35. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (plurality). 36. Id. at 567-69. 37. See generally POWE, supra note 2, at 22-50. 38. Id. at 47. 39. Id. at 44. 40. Id. at 27. 41. Id.

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200 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 the way to the First Amendment.42 As one commentator suggests, “[e]veryone, from Federalist to Antifederalist, had come to see that a free press was of great value to representative selfgovernment . . . . The framers ‘could only have meant to protect the press with which they were familiar and as it operated at the time. They constitutionally guaranteed the practice of freedom of the press.’”43 The Supreme Court has more recently recognized that this practice includes not only the right to publish but also a qualified right to access the information essential to publication.44 Allowing access to the judiciary and increasing publicity afforded to the third branch of government also carries out the Framers’ intention of creating a system of checks and balances. Beyond the three branches of government, which serve as the government’s internal checks and balances system, the media, in its role as the Fourth Estate,45 provides an additional external check and balance on governmental processes. Jeremy Bentham even commented that “‘[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.’”46 B. Richmond Newspapers In extending this access right to criminal trials, the Richmond Newspapers plurality looked at history, which it said “demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long

42. Id. at 47-48. 43. Id. at 50. 44. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (plurality). 45. Supreme Court Justice Potter Stewart coined the term “Fourth Estate,” referring to the media during an address to the Sesquicentennial Convocation at Yale Law School. He said that the press clause of the First Amendment is a “‘structural provision’ operating to create ‘a fourth institution outside the government to check the potential excesses of the other three branches.’” POWE, supra note 2, at 260-61. 46. Richmond Newspapers, Inc., 448 U.S. at 569 (plurality) (quoting JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 524 (1827)).

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been presumptively open.”47 The plurality’s walk through history took it back to the seventeenth and eighteenth centuries, where early scholars once noted “the importance of openness to the proper functioning of a trial.”48 The plurality also reasoned that conducting trials under the public’s watch has a “therapeutic” effect on the community.49 For example, media coverage of the judicial system provides an “outlet for community concern, hostility, and emotion.”50 The State of Virginia, in Richmond Newspapers, argued vehemently that the Framers had never intended a right of access to judicial proceedings.51 Ironically, the state’s argument against expanding the scope of the First Amendment was made in the same courthouse where, over 200 years before, patriot Patrick Henry advocated for freedom of speech and press.52 The state’s argument centered on the simple assertion that the Framers did not intend for the public to have a right to attend trials because the Constitution does not mention such a right.53 The plurality summarily dismissed the state’s contention, explaining that the Framers anticipated this argument.54 The plurality recalled that the Framers had even grappled with adopting a Bill of Rights altogether out of a fear that this same interpretation would be made.55 Nevertheless, it rejected the state’s argument by listing numerous examples of important rights the Court has recognized that are not enumerated in the Constitution, including the right to privacy, the right of association, the right to be presumed innocent, and the right to travel.56 Having resolved that fundamental rights may be recognized even when they are not expressly guaranteed, the plurality concluded that without a right 47. Id. 48. Id. 49. Id. at 570. 50. Id. at 571. 51. Id. at 579. 52. David M. O’Brien, The Trials and Tribulations of Courtroom Secrecy and Judicial Craftsmanship: Reflections on Gannett and Richmond Newspapers, in CENSORSHIP, SECRECY, ACCESS, AND OBSCENITY 177, 195 (Theodore R. Kupferman ed., 1990); Brief of Appellants, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (No. 79-243). 53. Richmond Newspapers, Inc., 448 U.S. at 579 (plurality). 54. Id. 55. Id. 56. Id. at 579-80.

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202 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 of access, “important aspects of freedom of speech and ‘of the press could be eviscerated.’”57 The plurality found that the First Amendment prevents the government from arbitrarily closing courtroom doors in criminal trials,58 but it also acknowledged that there certainly could be cases where an overriding interest would warrant closure; however, it clarified that the overriding interest may only be considered after a presumption of openness is recognized.59 Justice Brennan’s concurring opinion in Richmond Newspapers set the stage for the Supreme Court’s later interpretations of the extent of the plurality’s newly recognized First Amendment access right. Brennan’s opinion centered on the structural role the First Amendment plays in democracy.60 Brennan contended that the First Amendment was meant to provide for uninhibited, informed debate. He wrote, “[t]he structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but also for the indispensable conditions of meaningful communication.”61 Without a right of access, informed debate could not flourish, Brennan argued.62 Having concluded that access is necessary to the enjoyment of First Amendment rights, Brennan noted that the task of determining which proceedings or documents are accessible “is as much a matter of sensitivity to practical necessities as it is of abstract reasoning.”63 To aid courts in making such a determination, Brennan offered what he deemed two helpful principles.64 These principles later became known as the Court’s two-prong test for determining if there is a qualified First Amendment access right to a judicial proceeding or document.

57. 58.

Id. at 580 (quoting Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). See DOUGLAS S. CAMPBELL, FREE PRESS V. FAIR TRIAL: SUPREME COURT DECISIONS SINCE 1807 166 (1994). 59. Richmond Newspapers, Inc., 448 U.S. at 581 n.18 (plurality). 60. Id. at 587-88 (Brennan, J., concurring). 61. Id. 62. Id. at 587 n.3 (quoting Saxbe v. Washington Post Co., 417 U.S. 843, 862-63 (1974) (Powell, J., dissenting)). 63. Id. at 588. 64. Id. at 589.

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C. Press-Enterprise I & Press-Enterprise II Shortly after the Supreme Court rendered its plurality decision, three right-of-access claims appeared on the Supreme Court docket.65 The most notable cases were Press-Enterprise I and Press-Enterprise II, where the Court recognized that a qualified First Amendment access right extends in criminal trials,66 to the voir dire process,67 and to preliminary hearings,68 respectively. The Supreme Court’s Press-Enterprise II decision applied the two-part test, derived from Justice Brennan’s concurring opinion in Richmond Newspapers, to determine when there is a qualified First Amendment access right to a proceeding in question.69 According to the Court, courts must engage in a twopart test involving “two complementary considerations.”70 The history prong questions whether the proceeding or process in question has historically been open to the press and the general public, while the logic prong considers whether public access plays a significant positive role in the functioning of the process.71 In deciding that access was warranted, the Court held that both prongs were satisfied, thereby vesting the media with a qualified 65. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610-11 (1982) (holding that a Massachusetts statute excluding the general public and the media from the courtroom in trials of specified sexual offenses during testimony of minor victims of sex crimes was unconstitutional); Press-Enter. Co. v. Superior Court (Press-Enter. I), 464 U.S. 501 (1984); Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1 (1986). 66. Although the United States Supreme Court has only recognized a qualified First Amendment right of access in criminal cases, because the Court has never had a civil right of access case before it, lower courts have been charged with deciding whether to apply the right in the civil context as well. Most courts recognize that Press-Enterprise II applies to civil cases as well. See Matthew D. Bunker, Closing the Courtroom: Judicial Access and Constitutional Scrutiny After Richmond Newspapers, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 155, 167 (Charles N. Davis & Sigman L. Splichal eds., 2000). 67. Press-Enter. I, 464 U.S. 501. 68. Press-Enter. II, 478 U.S. 1. 69. Id. at 8. The United States Supreme Court has only considered the First Amendment right of access in the context of judicial proceedings but almost all lower courts recognize that the right applies to judicial documents as well. See Traciel V. Reid, An Affirmative First Amendment Access Right, in CENSORSHIP, SECRECY, ACCESS AND OBSCENITY 403, 411-14 (Theodore R. Kupferman ed., 1990). 70. Press-Enter. II, 478 U.S. at 8. 71. Id.

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204 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 First Amendment access right to preliminary hearings.72 Importantly, while the Court held that both prongs were satisfied, there is no indication in its decision that both prongs were required. The Press-Enterprise decisions were the last right of access cases to appear on the Supreme Court’s docket. Since then, lower state and federal courts have been charged with interpreting the scope of this newly recognized right.73 Several lower courts have interpreted the Supreme Court’s holding to include a qualified right of access to “‘suppression hearings, bail hearings, sentencing hearings, change of venue hearings, plea hearings, contempt hearings, pretrial ex parte recusal hearings, post conviction proceedings, parole revocation proceedings, parole release hearings, executions, bench conferences, chambers conferences, juvenile proceedings, court martials, civil case proceedings, preliminary injunction proceedings, and closure proceedings.’”74 Although a qualified right of access was recognized in those cases, this is not to say that courts will continue to afford absolute access in these types of proceedings, nor would continual access to these proceedings necessarily be warranted. Undoubtedly, it could not be contended that there is an absolute access right to the above enumerated proceedings and documents, because such an absolute right would likely implicate other constitutional violations.75 Rather, these examples indicate willingness on the part of both state and federal courts to recognize an initial presumption of openness that may still be overcome, but only if access impedes a defendant’s Sixth Amendment rights or if a compelling state interest is asserted and the closure is narrowly tailored to meet

72. Id. at 13. 73. Bunker, supra note 66, at 162. 74. Id. (citing Thomas F. Liotti, The Second Circuit Review: 1996-97 Term: First & Sixth Amendments: Closing the Courtroom to the Public: Whose Rights are Violated? 63 BROOK. L. REV. 501, 533 (1997)). See also THE REPORTER’S KEY: RIGHTS OF FAIR TRIAL AND FREE PRESS 30-35 (A.B.A. 1994). For a complete breakdown of court decisions categorized by the type, proceeding, or document in question, see Dan Paul & Richard J. Ovelmen, Access, published annually in COMMUNICATIONS LAW published by the Practicing Law Institute. 75. The Sixth Amendment is often the source of conflict when determining whether a First Amendment right of access to a particular proceeding or document is warranted. See CAMPBELL, supra note 58.

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that interest.76 III. CURRENT CIRCUIT SPLIT

Since 1986, courts have grappled with interpreting the Supreme Court’s Press-Enterprise II test.77 The Supreme Court, silent on the issue of whether both prongs needed to be satisfied, instead said that its prior decisions have “emphasized two complementary considerations.”78 The plain meaning of the word complementary is “supplying mutual needs or offsetting mutual lacks.”79 Beyond the Court’s failure to mandate satisfaction of both prongs, the Court’s language suggests that either prong would advance the same objective. That is, the Court sought to devise a test that would ensure a presumption of openness to judicial proceedings. By limiting the scope of that presumption to those proceedings that had a long history of openness (an indication that society was willing to accept media access to proceedings of this 76. See generally BUNKER, supra note 19. The test, as originally illustrated in Richmond Newspapers, and later reaffirmed in Press-Enterprise II involves a two-step consideration before access will be afforded. Step I determines whether there is a presumption of openness to the proceeding, while Step II determines if there is an overriding interest that warrants closure, such as a defendant’s Sixth Amendment right to a fair trail or other compelling state interests that are necessary to preserve “higher values.” The test breaks down in the following way: Step I: a) Whether the place or process have historically been open to the press and general public. (history prong) b) Whether public access plays a significant positive role in the functioning of the particular process in question. (logic prong) Step II: a) Whether a defendant’s Sixth Amendment rights are impeded or a compelling state interest is asserted. b) Whether the closure is narrowly tailored to meet that specific interest. See Press-Enter. II, 478 U.S. at 8. 77. See Douglas Lee, Courtroom Access: Overview, THE FIRST AMENDMENT CENTER, Jan. 3, 2005 (last updated), http://www.firstamendmentcenter.org/Press/topic.aspx?topic=courtroom_acce ss (last visited Nov. 5, 2005) (“While the U.S. Supreme Court consistently has reaffirmed the public’s right of access to judicial proceedings, trial and appellate judges implementing that right frequently have sacrificed the public’s right to know in order to ease the administration of justice.”). 78. Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 9 (1986). 79. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 386 (3d ed. 1996).

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206 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 sort) or those proceedings that would function better with the public’s scrutiny, the Court safeguarded against affording access to all aspects of the judicial process. In particular, it appears the Court was reluctant to afford a presumption of access to those proceedings typically operating in secret, so as to protect the involved parties’ privacy.80 Nevertheless, by using the word “complementary,” the Court imparted that each prong is a separate consideration. The logic prong compensates for what the history prong lacks. For example, modern proceedings and documents undoubtedly lack a long-standing history of openness; however, access may still promote the functioning of these processes. Therefore, the Court’s “complementary” considerations ensure that when a proceeding cannot meet one prong, satisfaction of the other prong will achieve the same result. Apart from the word “complementary,” the Court considered whether the proceeding met both prongs when applying the test but it never explicitly held that a qualified right of access would not be recognized if the proceeding could only meet one of the two prongs.81 The decision’s ambiguity has led courts to take varying approaches when applying the test.82 The vast majority of courts hold that the Court’s test is conjunctive, whereby a qualified right of access will only be recognized when a proceeding passes both the history and the logic prongs.83 Other courts have broken ground by recognizing the right when only one prong is satisfied.84 This latter approach is a recent trend and may reflect some courts’ final recognition that the history prong often cannot be satisfied when modern forms of adjudication and innovative judicial devices are utilized. A. The Conjunctive Test The Courts of Appeal for the Third, Fourth, and District of 80. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980) (Brennan, J., concurring). 81. Press-Enter. II, 478 U.S. at 9 (1986). 82. See infra Parts III.A, III.B. 83. See, e.g., N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 538 U.S. 1056 (2003); United States v. Hani ElSayegh, 131 F.3d 158, 160-62 (D.C. Cir. 1997); Balt. Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989). 84. See, e.g., United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989). See also Boston Herald, Inc. v. Connolly, 321 F.3d 174, 182 (1st Cir. 2003).

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Columbia Circuits have expressly held that both the history and logic prongs must be met before the public is granted a qualified right of access. In cases where courts cannot identify a history of access to the type of proceeding or document at issue, these Circuits often decline to engage in the logic inquiry and refuse to recognize a qualified right of access.85 In some cases these Circuits engage in the logic inquiry, making it clear, however, that regardless of the result a right of access cannot be recognized on one prong alone.86 Perhaps this strategy is useful for appeals purposes but it adds further confusion to First Amendment access right jurisprudence. In United States v. Hani El-Sayegh87 the District of Columbia Circuit considered a claim of access to a plea agreement. The plea agreement was submitted to the court before the plea was offered to allow the court to rule on the government’s initial motion to seal the agreement.88 The government argued that there was sensitive information in the agreement that required sealing.89 The defendant later repudiated the agreement entirely and entered a not guilty plea.90 The government, unable to secure corroborating evidence, moved to dismiss the indictment without prejudice and the court granted the motion.91 The court noted there has been a history of access to plea agreements that have culminated in guilty pleas in court because such an agreement is, in essence, a substitute for a trial. Nevertheless, the court could not find a history of access to a plea agreement that has never been admitted in court.92 The court noted that “it is impossible to say that access to such a document has historically been available . . . .”93 Because it held that the history prong could not 85. See infra Parts III.A, III.B. 86. See, e.g., N. Jersey Media Group, 308 F.3d 198. 87. Hani El-Sayegh, 131 F.3d at 160-62. 88. Id. at 161. Federal Rule of Criminal Procedure 11(e)(2) requires plea agreements to be disclosed in court (or, if good cause is shown, in camera) at the time the plea is offered. Id. The government and the defendant sought to file the agreement under seal because it contained sensitive and confidential information. Sealing a document removes it from the media’s and the public’s purview. 89. See id. at 159. 90. See id. 91. See id. 92. See id. at 161. 93. Id.

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208 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 be satisfied, the court declined to consider whether a qualified right of access should be recognized under the logic prong.94 The court did recognize the possibility that a lack of historical access would not bar a court from finding that the history prong had been met.95 For example, if a new procedure is substituted for an older procedure, a court could look at the long history of access that accompanied the older procedure.96 However, when the proceeding or document is “entirely novel,” it may never pass the test.97 The Third Circuit took a similar approach in North Jersey Media Group v. Ashcroft98 when it held that a qualified First Amendment access right could not be recognized on the logic prong alone.99 The court held that a media outlet did not have a First Amendment right to attend post-September 11th deportation hearings.100 Although the court appropriately engaged in the logic inquiry and found it was not satisfied, the decision clearly established that even if the court had found that the logic prong was satisfied it believed its hands were tied. The majority was convinced that it could not hold that a qualified right of access vested absent a finding that both prongs were met.101 The Fourth Circuit, in Baltimore Sun Co. v. Goetz102 also held that the Supreme Court’s test was conjunctive.103 In that case, the Baltimore Sun sought access to sealed search warrant affidavits that were issued by a federal magistrate and executed by law enforcement officials.104 Although the court recognized a Circuit split with respect to a First Amendment access right to search warrant affidavits, it held that because there had not been a history of openness, a qualified First Amendment right could not

94. Id. 95. See id. 96. See id. 97. Id. 98. 308 F.3d 198 (3d Cir. 2002), cert. denied, 538 U.S. 1056 (2003). 99. Id. at 213. 100. Id. at 204-05. The court’s holding is in stark contrast to the Sixth Circuit’s decision that same year. The Sixth Circuit, in Detroit Free Press v. Ashcroft, recognized a qualified right of access to deportation hearings based on satisfaction of both prongs. 303 F.3d 681, 705 (6th Cir. 2002). 101. N. Jersey Media Group, 308 F.3d at 216. 102. Balt. Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989). 103. See id. at 64. 104. Id. at 62.

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be recognized.105 The court expressed concerns about jeopardizing an individual’s fair trial,106 but because Press-Enterprise II allowed preclusion of access when it is essential to preserve “higher values” and the closure is narrowly tailored to serve that interest, the court’s concerns should have been properly addressed under the Press-Enterprise II inquiry. B. The Disjunctive Test Other courts continue to struggle applying the test. The First Circuit parted from its sister Circuits in 2003 when it announced in dicta that if it was called upon to decide how to apply the PressEnterprise II test, it would not hold that both prongs must be satisfied.107 In Boston Herald, Inc. v. Connolly,108 the court examined a First Amendment access claim to financial affidavits and a document summarizing a criminal defendant’s debt that had been submitted to the court under the Criminal Justice Act (CJA) for government funding of a portion of his attorney’s fees and legal expenses.109 The court engaged in the Press-Enterprise II inquiry to decide whether a qualified First Amendment access right could be recognized.110 Although the court recognized it could draw analogies to determine whether there was a history of access to similar documents, in this case it could not find that there were strong analogies to warrant recognition of a history of access.111 Unlike other courts that would end the inquiry there, the court considered whether access to the document would play a positive role in the actual functioning of the process, under the logic prong.112 The court decided that “[s]ome courts have treated these considerations as a two-prong test, with a pair of elements that must both be satisfied . . . . We are unpersuaded that this is the correct reading of the ‘complementary considerations’ of Press-

105. Id. at 64. 106. Id. 107. Boston Herald, Inc. v. Connolly, 321 F.3d 174, 182 (1st Cir. 2003). 108. Id. 109. Id. at 175-76. 110. Id. at 180-82. 111. Id. at 184 (“The analogies must be solid ones, however, which serve as reasonable proxies for the ‘favorable judgment of experience’ concerning access to the actual documents in question.”). 112. Id. at 186.

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210 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 Enterprise II.”113 Ultimately the court concluded that public access to a defendant’s financial documents would in fact play a negative, not a positive role, but it recognized that access could be afforded on one prong alone.114 Although Circuit Judge Lipez’s dissent suggested that the history prong should be eliminated,115 the majority maintained that it could not ignore tradition altogether following Press-Enterprise II.116 Rather, it noted “the absence of analogous tradition might not doom a claim where the functional argument for access to a type of judicial document is strong.”117 Nevertheless, in this case, the court was unable to find that the document passed either prong.118 While the immediate result in Connolly was to deny the Boston Herald access to the documents, the decision itself was a glimmer of hope for media access advocates. Media outlets, in the First Circuit at least, can anticipate that their rights to access innovative judicial proceedings and documents will be protected, despite the proceeding’s or document’s infancy. C. Exceptions to the conjunctive test move toward a disjunctive application Connolly marked the first time a Circuit recognized a willingness to continually treat the Press-Enterprise test as disjunctive. In some other cases, Circuits that have traditionally interpreted the Press-Enterprise II test as conjunctive have made exceptions when the logic prong alone was strikingly strong.119 In United States v. Suarez,120 the Second Circuit recognized access on the logic prong alone.121 The Suarez court examined the same type of access examined in Connolly but arrived at a different 113. Id. at 182. 114. Id. 115. Id. at 201 (Lipez, J., dissenting) (“In the end there is no sound reason to exclude criminal proceedings of recent origin from the reach of the First Amendment simply because they cannot match the lineage of proceedings that have long been part of the criminal process.”). 116. Id. at 184 n.5 (“We do not think we are free, under Press-Enterprise II, to simply ignore tradition. Analogies will frequently prove useful reasoning tools which lawyers are well trained to employ.”). 117. Id. 118. Id. at 189. 119. United States v. Suarez, 880 F.2d 626, 626 (2d Cir. 1989). 120. Id. 121. Id. at 631.

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conclusion, holding the lack of tradition with respect to access to CJA forms does not detract from the public’s strong interest in how its funds are being spent in the administration of criminal justice.122 Interestingly, a district court decision rendered after Suarez, but before Connolly, found a qualified right of access attached to a CJA document, drawing on analogies to satisfy the history prong and concluding that the second prong was strong.123 Although the court did not delve deeply into the historical analysis and merely set forth arguments both for and against finding history based on analogy, the court determined access should be presumed because “presence of the public improves the performance of all participants, educates the public in the workings of the judicial process, and subjects the judicial system to a healthy public scrutiny”; on these presumptions, a qualified right of access attached.124 Like the Second Circuit, the Third Circuit has, on occasion, parted from its traditional conjunctive test.125 In United States v. Simone, the Third Circuit considered a right of access claim to post-trial hearings concerning juror misconduct.126 Although the court found there had not been a long history of access to such proceedings, it likened the case to another decision rendered in the years between Richmond Newspapers and Press-Enterprise II, where the Third Circuit “did not believe that historical analysis was relevant to the determination of whether the First Amendment [access right applied] . . . .”127 Instead, the court “focused on ‘the current role of the first amendment and the societal interests,’” thereby relying primarily on the logic prong.128 122. Id. (“The lack of ‘tradition’ with respect to the CJA forms does not detract from the public’s strong interest in how its funds are being spent in the administration of criminal justice and what amounts of public funds are paid to particular private attorneys or firms.”). 123. United States v. Ellis, 154 F.R.D. 692, 696-97 (M.D. Fla. 1993). Although the right of access attached, the court ultimately refused to allow access after finding that the defendant’s attorney client privilege and Fifth Amendment rights would be jeopardized, which was sufficient to overcome the First Amendment presumption of openness. Id. 124. Id. at 696. 125. United States v. Simone, 14 F.3d 833 (3d Cir. 1994). 126. Id. at 837. 127. Id. at 838. 128. Id. (quoting United States v. Criden, 675 F.2d 550, 555 (3d Cir. 1982)).

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212 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 Under the logic prong the court made several findings, which included: 1) public access to post-trial hearings regarding juror misconduct helps assure the public that the system is fair; 2) access discourages juror misconduct and assures the public of the integrity of those who participate in the system; and 3) access discourages perjury in many cases because the public might be able to contradict the perjured testimony if it learns about the testimony from the media.129 With these principles in mind, the court held there was a qualified right of access to the post-trial juror misconduct hearing, even though the history prong was wholly lacking.130 The inconsistencies of courts’ application of the PressEnterprise II test are particularly troublesome because the varying results leave the media with little guidance as to which proceedings will be open in the future. More importantly, however, the conjunctive test moves further away from the Framers’ intentions of a right of access to governmental processes as a means of promoting a free press. The court’s dicta in Connolly proved to be a victory for media access, yet this has not changed the analyses of the vast majority of courts,131 which still interpret the Supreme Court’s test as conjunctive. IV. MOVING TOWARD A DISJUNCTIVE TEST NECESSARY TO RESTORE FIRST AMENDMENT’S PRESUMPTION OF OPENNESS

A. Disjunctive test provides true intent and restores presumption The disjunctive test provides a workable means of restoring the Framers’ intention of a presumption of openness to an otherwise problematic interpretation of the Supreme Court’s test. The Supreme Court’s Press-Enterprise II two-pronged test, properly construed as a disjunctive test, whereby satisfaction of either prong would vest the media with a qualified First Amendment access right, would properly reopen courthouse doors. Although the door will undoubtedly be closed when the second step of the Press-Enterprise II analysis is satisfied, a presumption of openness will allow the media access so long as a defendant’s 129. 130. 131.

See id. at 839. Id. at 840. See discussion supra Part III (Part III introduction).

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Sixth Amendment rights or a compelling state interest are not infringed.132 Each prong of the court’s first analysis is sufficient on its own to carry out the Framers’ intent of awarding a presumption of openness to judicial proceedings and documents.133 In the end, the same reasons the Supreme Court asserted for allowing the press and the public to attend criminal trials support media access to other judicial proceedings and documents. That is, the media’s attendance will “[enhance] the quality” and “[safeguard] the integrity” of the judicial process, while heightening public respect by the “appearance of fairness” and allowing the public to participate through attendance as a check on the judicial process.134 1. Finding access on history prong alone When the Constitution was drafted and Amendments were made, the Framers were conscious of the importance of reflecting upon history to find reasoned judgments.135 Justice Frankfurter even observed that “‘[t]he Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature.’”136 Richmond Newspapers was decided under the history prong for precisely this same reason; that is, “a tradition of accessibility implies the favorable judgment of experience.”137 The Richmond Newspapers plurality based its decision on the important role that open criminal trials serve in the proper administration of justice, looking to the English system for guidance. According to one legal scholar, “[i]t is one of the most conspicuous features of English justice, that all judicial trials are held in open court. . . . [T]he English system ensures that the enormous force of public opinion is brought to bear on the 132. Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 13-14 (1986). 133. See infra Parts IV.A.1, IV.A.2. 134. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982). 135. See CHARLES A. MILLER, THE SUPREME COURT AND THE USES OF HISTORY 172 (1969). 136. Id. (quoting Youngstown v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J., concurring)). 137. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring).

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214 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 proceedings in court, and that the judge and jury are compelled to hear both sides of the case.”138 A look at history, whether it is the United States or English system, for guidance is a continual trend in constitutional interpretation.139 Indeed, this is not to say that a proceeding must have a thousand years of experience140 before it will be recognized under the history prong, but when access has been afforded for some considerable length of time the “favorable judgment of experience” is shown. Reliance on history eliminates arbitrary decision-making and provides a consistent pattern of those proceedings that are open, allowing the media to anticipate where access will be allowed. This means that affording access based on the history prong eliminates case-by-case scrutiny, at least with respect to the court’s first analysis. In both PressEnterprise II and Rivera-Pueg v. Garcia-Rosario,141 the courts noted that the experience test must be applied in light of the experience of openness of that type of proceeding or document throughout the United States, not just experience in one jurisdiction.142 The Court’s insistence on uniformity guarantees that a document or proceeding that has always been afforded access in other jurisdictions, will be equally afforded access in all jurisdictions, allowing media outlets to know in advance and predict what proceedings will typically be open, so that they can better serve the public in their judicial coverage.143 Furthermore, affording access based on the history prong alone sounds in judicial convenience. If a proceeding or a document has always been afforded access, it is unnecessary for a 138. EDWARD JENKS, THE BOOK OF ENGLISH LAW 73-74 (Ohio Univ. Press 1967) (1928). Jenks also noted that, in some cases, this interest can be overridden when it is essential for a proceeding to take place in secret. Id. at 74. 139. See JEFFREY M. SHAMAN, CONSTITUTIONAL INTERPRETATION, ILLUSION AND REALITY, 54-55 (2001) (“History can and should be used to inform the balancing process; it should not, however, replace it.”). 140. See N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 213 (3d Cir. 2002) (“[A] 1000-year history is unnecessary.”). 141. Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1 (1986); Rivera-Pueg v. Garcia-Rosario, 983 F.2d 311 (1992). 142. See Press-Enter. II, 478 U.S. at 10-11; Rivera-Pueg, 983 F.2d at 323. 143. Although it is argued infra that the history prong, in the context of the conjunctive test, arrives at inconsistent results, this is because courts are forced to make the proceeding or document fit into the history prong. Under the disjunctive test, however, courts are not forced to stretch analogies to make findings under the history prong.

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court to undergo an extensive analysis every time a media outlet seeks access to a proceeding, except when considering whether countervailing factors warrant closure. This is particularly important in an era where courts are providing electronic access to court documents. So long as the type of document has always been available for the public and the media to access and inspect, court employees should rest assured that this type of access will be continually afforded. Therefore, automatic electronic access to these documents will be presumed unless a party seeks closure. If a party does seek closure, the documents can be shielded from public and media scrutiny so long as the party proves that closure is warranted under heightened or strict scrutiny, depending on which level of scrutiny the court applies. Court initiatives to make some information readily accessible electronically will be curtailed if forced to undergo this analysis each time, defeating both the aims of the First Amendment and the aims of courts hoping to make their proceedings more accessible. Rather, if access has always been afforded to the document in question, access should vest immediately and should only be divested in cases where a party satisfies the burden of proving that closure is warranted because a defendant’s Sixth Amendment rights would be jeopardized or some other “higher values” need to be preserved. Lastly, although it may be contended that courts should not continue to uphold access to proceedings merely because access to that type of proceeding has always been afforded, because the history prong already embodies the logic prong analysis, many of the safeguards supporting the conjunctive test are already ingrained in the history prong of the disjunctive test.144 The history prong has not been without criticism. Commentators agree that the test presents many problems when deciding whether access should be afforded.145 These criticisms are aimed predominately at the history prong’s effect when analyzed as part of the conjunctive test. Some commentators and jurists contend that the history prong serves no purpose and ought to be 144. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94 (2d Cir. 2004) (“Experience casts an affirming eye on the openness of docket sheets and their historical counterparts.”). 145. See Bunker, supra note 66, at 172; Kimba M. Wood, The 1995 Justice Lester W. Roth Lecture: Reexamining the Access Doctrine, 69 S. CAL. L. REV. 1105, 1105-20 (1996).

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216 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 eliminated from the court’s analysis because it hinders access to many documents.146 Proposals to eliminate the history prong are aimed at affording greater access to judicial processes but ultimately leave courts with fewer confines and confer greater discretion to courts in rendering access decisions. For example, eliminating the history prong altogether would mean that courts could deny access to proceedings that have always been afforded access. Additionally, eliminating the history prong entirely would move away from the Founders’ strong belief in relying upon the teachings of history and experience of man.147 Without the history prong, courts would be able to resolve cases on the logic prong alone. The result is that a court, which is increasingly reluctant to afford access to one particular criminal proceeding, may deny access by posturing that public access does not contribute to the system’s positive functioning. The ultimate effect is that an individual’s fair criminal trial could be jeopardized because part of the rationale in the presumptive openness of judicial proceedings is to allow the media to scrutinize judicial proceedings in an effort to ensure that the integrity of the judicial system is maintained.148 Similarly, some commentators have proposed using a sliding scale-type balancing test, whereby a stronger prong may make up for a weaker prong.149 This also defeats the aims of the First Amendment in affording a right of access to judicial proceedings. By using a sliding scale, courts are likely to place greater, if not too much, reliance on the logic prong each time a proceeding or document fails the history test or has a weak or limited history of

146. See Boston Herald, Inc. v. Connolly, 321 F.3d 174, 200 (1st Cir. 2003) (Lipez, J., dissenting); Wood, supra note 145. 147. See supra note 135. 148. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980) (plurality) (“The public trial, one of the essential qualities of a court of justice in England, was recognized early in the colonies. There were risks, of course, inherent in such a “town meeting” trial . . . . The modern trial with jurors open to interrogation for possible bias is a far cry from the “town meeting trial” of ancient English practice. Yet even our modern procedural protections have their origin in the ancient common law principle, which provided, not for closed proceedings, but rather for rules of conduct for those who attend trials. . . . Openness in criminal trials, including the selection of jurors, “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”). See also FREEDMAN, supra note 5, at 3 (1998). 149. See Bunker, supra note 66, at 172.

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openness. In these cases, the result is that courts, mindful of a result they wish to achieve, whether it is opening or closing the proceeding to media access, will be inclined to overemphasize one prong to compensate for a weaker prong. 2. Finding access on the logic prong alone The logic prong dictates that public and media access should be afforded when “access plays a significant positive role in the functioning of the particular process in question.”150 The list of reasons why access may play a significant positive role in the functioning of the process is long, as the Richmond Newspapers plurality illustrated. Most importantly, open public trials have a therapeutic value, while also enhancing the fairness of the trial and the public’s confidence in the system.151 Beyond that, “public inclusion affords citizens a form of legal education and hopefully promotes confidence in the fair administration of justice.”152 Ultimately, the plurality hoped that access would contribute “to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system.”153 Allowing media access would foster this goal because the media functions as a surrogate for the public.154 Additionally, the Third Circuit has identified six societal interests a court may consider when determining whether public access to a document or proceeding enhances its function, thus satisfying the logic prong: Promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; providing a significant community therapeutic value as an outlet for community concern, hostility, and emotion; serving as a check on corrupt practices by exposing the 150. Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 8 (1986). 151. Richmond Newspapers, Inc., 448 U.S. at 570 (plurality). 152. Id. at 573. 153. Id. (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring)). 154. Id. at 572.

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218 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 judicial processes to public scrutiny; enhancement of the performance of all involved; and discouragement of perjury.155 Although the logic prong traditionally focuses on whether disclosure is necessary to aid the functioning of the system, some suggest that the issue should not be seen in terms of whether disclosure would aid the functioning of the system, but rather whether disclosure would defeat the purpose of the judicial process at issue.156 While this approach would break new ground for media access rights,157 it does not seem this is a feasible approach for courts in light of over twenty years of relatively consistent interpretation of the Richmond Newspapers logic test. The logic prong has not been subjected to the great criticism that its historical counterpart has endured. Nevertheless, some commentators maintain that making decisions based on the logic prong alone would result in opening every judicial document or proceeding because public access almost always plays some significant positive role in the functioning of the process in question.158 Criticism aimed at the logic prong strikes at the very heart of the Supreme Court’s objective of creating a presumption of openness under the First Amendment. This argument fails to consider that just because a qualified First Amendment access right exists does not mean that access will be afforded. Access will be continually denied when closure is essential to preserve “higher values” and is narrowly tailored to serve that interest. Access must continue to be presumed under the logic prong to carry out the First Amendment’s intent of allowing the public and the media to cast a watchful eye on judicial proceedings.159

155. United States v. Smith, 123 F.3d 140, 146-47 (3d Cir. 1997). 156. See Steinfield, supra note 24, at 7, 23 (referring to Judge Lipez’s dissent in Connolly and proposing that this approach should be deemed the “detriment” view of the logic prong). 157. Id. 158. See Wood, supra note 145, at 1105-20. 159. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92 (1975). In a society in which each individual has but limited time and resources with which to observe at first hand the operation of his government, he relies necessarily upon the press (and media) to bring him to convenient form the fact of these operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of the government, and official

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B. Failings of current test Richmond Newspapers and its progeny were intended to create a presumption of openness and “designed to vindicate the central purpose of the First Amendment by making the operations of government institutions subject to effective public scrutiny.”160 The plurality envisioned open trials as a means of promoting fairness and integrity in the decision-making process. Despite the Court’s vision of affording a presumption of access so that the judicial system could be held accountable to the people, courts’ interpretations have continually moved away from a presumption of openness and have instead embraced a presumption of closure, at least when a proceeding fails the history prong.161 Inevitably, these courts continually deny a qualified right of access to modern adjudicative innovations, which, by their very nature, are unsupported by a history of access.162 Therefore, only twenty years records and documents open to the public are the basic data of governmental operations. Without the information provided by the press (and media) most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. Id. 160. Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 94-95 (D. Mass 1993). 161. See United States v. Cianci, 175 F. Supp. 2d 194 (D.R.I. 2001); United States v. Town of Moreau, 979 F. Supp. 129, 133 (N.D.N.Y. 1997) (denying access without ever considering the logic prong because a proceeding failed the court’s history analysis); accord Calder v. Comm’r, 890 F.2d 781 (5th Cir. 1989); but see N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 211 (3d Cir. 2002) (examining the logic prong after determining there was no history of access but noting that even if it found the proceeding passed the second prong, the court would still deny access because “the tradition of open deportation hearings is too recent and inconsistent to support a First Amendment right of access.”). See also Balt. Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989); United States v. Ellis, 154 F.R.D. 692, 696-97 (M.D. Fla. 1993). 162. See N. Jersey Media Group, 308 F.3d at 213, 216 (finding that there was no history of access to deportation hearings and precluding access on the basis that it does not embrace recognition of a right of access absent a strong showing of openness under the experience prong). Those courts, which hold that access may be afforded on one prong, alone, however, find that the relative newness of a judicial proceeding or document will not preclude the court from awarding access. See United States v. Suarez, 880 F.2d 626, 631

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220 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 after a plurality of the Supreme Court announced its hopeful goals in Richmond Newspapers, courts have lost sight of the presumption of openness that the First Amendment affords to judicial proceedings.163 Courts, intent on awarding access only when there is both a history of access to the proceeding and when logic dictates that access should be afforded, overlook a core premise of the Constitution. As Chief Justice John Marshall twice explained, “a constitution is framed for ages to come.”164 Moreover, the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”165 Because Marshall continually emphasized the Constitution’s flexibility, allowing it to be adapted to meet society’s needs, one would be hard-pressed to claim that the Framers intended that courts only afford a right of access to those proceedings and documents that were open to the public when the Constitution was drafted.166 Nevertheless, every time a court declines to recognize a qualified right of access to a judicial proceeding or document because a history of access is lacking, it undermines the founding principles of the Constitution. The only plausible application of Marshall’s explanation of the Constitution’s role with respect to First Amendment right-ofaccess jurisprudence is that the First Amendment guarantees a (2d Cir. 1989) (“It is true that there is no long ‘tradition of accessibility’ to CJA forms. However, that is because the CJA itself is, in terms of ‘tradition,’ a fairly recent development, having been enacted in 1964 . . . . The lack of ‘tradition’ with respect to CJA forms does not detract from the public’s strong interest in how its funds are being spent in the administration of criminal justice and what amounts of public funds are paid to particular private attorneys or firms.”). 163. See discussion supra Part II. 164. Cohens v. Virginia, 19 U.S. 264, 387 (1821). 165. McCulloch v. Maryland, 17 U.S. 316, 415 (1819). 166. The Richmond Newspapers, Inc. plurality noted that the “First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the Amendment was adopted.” 448 U.S. 555, 576 (1980) (plurality). Although courts have since noted that the history prong may be satisfied even if the proceeding has not enjoyed 1,000 years of access, these courts rely on analogies which may be drawn to other similar proceedings when a new proceeding or document has replaced an old practice. See supra note 140 and accompanying text. Courts retain considerable discretion when drawing such analogies, inevitably arriving at different results. See discussion infra Part IV.A.2.

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qualified right of access to those judicial proceedings and documents that were presumptively open in the late eighteenth century; however, this should not preclude courts from recognizing a right of access absent a history of openness. 1. The blurred line between the court’s inquiries lowers defendants’ burden of proof A continual trend emerging when courts apply the conjunctive test is that the Court’s two inquiries are losing their intended separation, thus shifting the burden of proof. In every First Amendment right-of-access case rendered by the Supreme Court, the Court has stressed that there are two separate inquiries that must be considered.167 The first inquiry considers only whether there is a presumption of access to the proceeding based on history and logic.168 If the answer is in the negative, the court should look no further and deny access. If, however, the court finds there is a presumption of access, it must then consider whether a defendant’s Sixth Amendment rights are impeded or a compelling state interest is implicated.169 If the court finds it is, it must then consider whether closure is narrowly tailored to meet that specific interest.170 By this method the defendant carries the burden of proving that an otherwise open proceeding must be closed.171 The line dividing these two seemingly separate inquires has been blurred in recent years. Courts’ discretion under the history prong is primarily to blame. Courts are empowered with great discretion to make relevant analogies under the historical analysis to help determine if the proceeding or document is of the type that has traditionally been afforded access.172 For example, courts have looked to the traditional openness of criminal trials as historical 167. Press-Enter. Co. v. Superior Court (Press-Enter. II), 478 U.S. 1, 13-14 (1986); Press-Enter. Co. v. Superior Court (Press-Enter. I), 464 U.S. 501, 510 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-09 (1982); Richmond Newspapers, Inc., 448 U.S. at 580-81 (plurality). 168. Press-Enter. II, 478 U.S. at 8-9. 169. Id. at 9. 170. Id. 171. See Oberlander, supra note 13, at 2242-44. 172. See Boston Herald, Inc. v. Connolly, 321 F.3d 174, 184 (1st Cir. 2003) (citing Rivera-Pueg v. Garcia-Rosario, 983 F.2d 311, 323 (1st Cir. 1992) (“Tradition is not meant, we think, to be construed so narrowly; we look also to analogous proceedings and documents of the same “type or kind.”)).

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222 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 support for allowing access to a document submitted in connection with a criminal trial, thereby allowing such documents to satisfy the history prong.173 Because access has always been afforded to the criminal trial, courts sometimes reason that access to a document submitted in connection with a criminal proceeding or a related criminal hearing should be afforded as well.174 Other courts expressly reject this notion, requiring closer analogies before a proceeding or document passes the history prong.175 At least one commentator has examined the analogies courts use to arrive at particular results.176 For example, a court mindful that at the end of the day access should not be afforded because a defendant’s rights may be jeopardized, may intentionally or unintentionally weave this policy decision into its initial consideration under the history test. Courts that mesh the history prong together with the determination that a particular type of access will prejudice a defendant’s Sixth Amendment rights or infringe upon some other “higher value,” overlook that closure is only warranted when a defendant proves that the open proceeding or document rises to the level of prejudice necessary under a strict scrutiny or heightened scrutiny analysis. At first glance, it appears it would make no difference whether the court decided under the history and logic prong that no qualified First Amendment access right vested in the proceeding or whether it decided that a qualified right of access existed, but was then trumped by a defendant’s competing interests, warranting closure. Clearly, access would be denied in either case. However, the ongoing debate over the appropriate level of scrutiny that must be applied in the court’s secondary analysis could inevitably impact the result.177 Legal scholars have attempted to sift through the Court’s language in Richmond Newspapers and its progeny to determine what level of scrutiny the Supreme Court intended to afford, but these efforts have been 173. See In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir. 2002); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502-03 (1st Cir. 1989). 174. See Providence Journal Co., 293 F.3d at 11; Pokaski, 868 F.2d at 50203. 175. See N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 213 (3d Cir. 2002). 176. See Wood, supra note 145, at 1115. 177. See BUNKER, supra note 19, at 94-115. See also O’Brien, supra note 52, at 206.

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unavailing.178 For example, although the plurality in Richmond Newspapers seemed to suggest that the secondary analysis merely required heightened scrutiny, the majority in Globe Newspaper Co. articulated a strict scrutiny test whereby closure is only warranted when there is a compelling government interest asserted and the closure is narrowly tailored to meet that interest.179 Two years later, the Court in Press-Enterprise I used the words “‘overriding’” and “‘higher,’” terms that are traditionally associated with a heightened scrutiny test.180 Nevertheless, the Court also quoted the Globe Newspaper Co. strict scrutiny test, leaving courts and scholars perplexed over the level of scrutiny warranted.181 Finally, after another two years had passed, the Press-Enterprise II decision applied heightened scrutiny.182 Unfortunately, the Court never addressed the confusion among its previous decisions regarding the appropriate level of scrutiny, leaving lower courts to wonder if the Court intended heightened scrutiny to displace the previously applied strict scrutiny test.183 Lower courts have also applied differing levels of scrutiny when determining whether closure is warranted.184 That the Supreme Court has yet to settle the appropriate level of scrutiny to be applied in the secondary analysis is particularly troublesome. Regardless of which level of scrutiny is applied, in every case the burden is on the defendant to prove that closure is warranted. Although defendants carry the burden of proving that closure is warranted due to either a compelling or substantial interest that overrides the presumption of openness (and also, in some cases, proving that the closure is narrowly tailored to meet these asserted interests), this heavy burden is often overlooked when courts instead lump this analysis with the history prong.185

178. BUNKER, supra note 19, at 94-115. 179. Id. at 96. 180. Id. at 98. 181. Id. (noting that because the two standards were articulated together in the opinion suggests that the standard is equivalent to strict scrutiny). 182. Id. at 100. 183. Id. 184. Id. at 94 (“There seems to be little consistency among courts either in the choice of test or the apparent commitment to the value of openness in court proceedings.”). 185. Courts have also injected this secondary consideration into the logic prong, causing the same problem. In N. Jersey Media Group v. Ashcroft, the

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224 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 Indeed, this is a skillful tactic employed by those courts wishing to close access. By utilizing such an approach, courts essentially eliminate a defendant’s burden of proving that closure is warranted. 2. Fitting a round peg into a square hole A second impact of the conjunctive test is that its strict confines force courts to stretch analogies to arrive at particular results. Courts struggle to fit the round peg into the square hole when proceedings would otherwise fail the history prong, precluding access to the proceeding or document at issue. Courts, mindful that at the end of the day access should be awarded, may be inclined to engage in legal casuistry only because a strict reading of the conjunctive test would deny access when the history prong cannot be met. Courts that abandon a strict reading of the historical analysis draw inaccurate and overreaching analogies instead,186 which should never be encouraged.187 This happens in cases where, although the court is aware that the “correct” result is to afford media access, there has been no history of access to the type of proceeding or document. Because under the conjunctive test both prongs must be satisfied, courts must attempt to evade the trappings of the history prong by likening the proceeding to something wholly different than the proceeding at hand.188 While

court parted from the traditional logic inquiry by adding to the analysis the question of whether there were policies that favored closure. The court noted, “Although existing case law on the logic prong has discussed only the policies favoring openness, we are satisfied that the logic prong must consider the flip side of the coin.” 308 F.3d 198, 200 (3d Cir. 2002). 186. In briefs to courts attorneys often stretch analogies to prove there has been a history of access to a proceeding or document in dispute. For example, in Boston Herald v. Connolly, counsel for the media company argued that because CJA documents were part of the criminal case, they should be afforded access because the criminal trial has always been afforded access. 321 F.3d 174, 184 (1st Cir. 2003). 187. See generally ALBERT R. JONSEN & STEPHEN TOULMIN, THE ABUSE OF CASUISTRY (1988). 188. See Boston Herald, 321 F.3d at 200-01 (Lipez, J., dissenting) (“This lack of tradition for criminal proceedings of recent origin places intervenors like the Boston Herald in the awkward position of analogizing the documents or proceedings at issue to materials or proceedings with traditions of accessibility. Such analogies can be useful but not decisive. They are inevitably assailable on grounds that the comparison is imperfect, or that application of the tradition would prove too much.”).

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analytical reasoning is perhaps one of the most useful tools employed by lawyers and judges,189 there comes a point where analogies are stretched too far. By allowing courts to stretch these analogies too far, inaccurate analogies result as courts force their own moral values into the history prong. The likely result of courts allowing such attenuated analogies is that courts will arrive at inconsistent results regarding the same type of proceedings. Quintessential examples of the difficulties courts have had applying the history prong emerged in 2002.190 In that year, two Circuits, examining precisely the same type of proceeding, arrived at different conclusions under their historical analyses.191 Both the Sixth and Third Circuits were called upon to decide whether the First Amendment affords a qualified right of access to deportation proceedings.192 The Sixth Circuit concluded that deportation hearings have historically been open to the public, thus surviving the first prong, while only two months later the Third Circuit rejected this approach, concluding that deportation hearings lack the “tradition of openness sufficient to satisfy Richmond Newspapers.”193 The result in each case suggests that the courts were able to inject their own policy judgments into their considerations under the historical analysis. The Third Circuit, perhaps reluctant to afford access to deportation hearings, made this determination under its history analysis, averting the need to prove that closure was warranted under the court’s secondary analysis. Meanwhile, the Sixth Circuit engaged in the inquiry required by the Supreme Court in Press-Enterprise II and found that because access has traditionally been afforded to deportation hearings, and because there are logical reasons supporting access, there should be a

189. See generally Cass R. Sunstein, Commentary: On Analogical Reasoning, 106 HARV. L. REV. 741 (1992). 190. Detroit Free Press v. Ashcroft, 303 F.3d 681, 701 (6th Cir. 2002); N. Jersey Media Group, 308 F.3d at 200. 191. Compare Detroit Free Press, 303 F.3d at 701 with N. Jersey Media Group, 308 F.3d at 200. 192. Detroit Free Press, 303 F.3d at 701; N. Jersey Media Group, 308 F.3d at 199. 193. N. Jersey Media Group, 308 F.3d at 212. Compare Detroit Free Press, 303 F.3d at 701 with N. Jersey Media Group, 308 F.3d at 212.

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226 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 presumption of access to the proceedings.194 The Sixth Circuit properly noted that this is not an absolute right of access and that proceedings may be closed when a party proves there is a compelling interest and that the closure is narrowly tailored to achieve those asserted interests.195 Nevertheless, the court refused to close the proceedings because the blanket closure at issue was not narrowly tailored to meet the government’s compelling interest.196 The decision, which proved to be a victory for media rights, concluded that “[o]pen proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy.”197 While the Sixth Circuit properly applied the Press-Enterprise II test, the Third Circuit’s approach effectively circumvented the Supreme Court’s analysis by finding that a presumption of access never vested. With this circumvention, the Third Circuit eliminated the need for a party to prove that closure was necessary because opening the proceedings impinges upon a compelling government interest and closure is narrowly tailored to meet that interest. The result in these cases further illustrates the difficulties of the conjunctive test. By requiring that courts find that both prongs are satisfied, courts will invariably arrive at different conclusions under the historical analysis. This result runs contrary to the very aims of the history prong, which seeks to afford consistent access by allowing courts to base their historical analysis on whether access has traditionally been afforded throughout the United States, not just one jurisdiction.198 A better solution would be to allow courts to award access based on satisfaction of either prong, thereby making it less likely that courts would attempt to circumvent the secondary analysis. 3. Planning news coverage Lastly, allowing courts to draw stretched analogies leaves the media without a tool that would otherwise allow it to predict when access will be afforded. It is important that reporters and media 194. 195. 196. 197. 198.

Detroit Free Press, 303 F.3d at 705. Id. at 705-06. Id. at 707-10. Id. at 711. See Rivera-Pueg v. Garcia-Rosario, 983 F.2d 311, 323 (1st Cir. 1992).

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outlets are able to track what type of proceedings and documents are traditionally available so that information may be made accessible to the general public.199 Indeed, the media’s right of access would be of little value unless it could anticipate the types of proceedings and documents that would be accessible. Ultimately, proper application of the conjunctive test forces a court to abruptly end its inquiry after determining that there has not been a history of access to the type of proceeding in question, without regard to whether the type of proceeding is an adjudicative or administrative innovation. The end result is that courts move further away from the First Amendment’s intent to provide public access to promote discussion of governmental affairs, and its mission of ensuring the integrity of the judicial system. Because modern proceedings and new forms of adjudication have not endured the long history of public scrutiny that the traditional criminal trial has, the argument is even more compelling that the public needs to extend a more cautious eye to ensure that these proceedings operate fairly and efficiently. V. PRESUMPTION OF OPENNESS AS A MEANS OF RESTORING PUBLIC FAITH IN THE JUDICIARY

Although the United States’ Founders recognized that public trials were the most effective means of ensuring that justice is served,200 since the late eighteenth century the judiciary has implemented numerous forms of adjudication and adjudicative processes. The trial is no longer the only place where public scrutiny is warranted. By implementing the disjunctive test and thereby restoring a presumption of openness under the logic prong to proceedings that would otherwise fail under the court’s history analysis, courts would allow the public eye to scrutinize modern proceedings and decide for themselves whether justice is upheld. It cannot be denied that “[o]penness and public access is the ultimate guardian of fairness in our justice system.”201 The Supreme Court itself has continually acknowledged the role the press plays in ensuring that the integrity of the judicial

199. See THE REPORTER’S KEY, supra note 74, at 22-42, 59-65. 200. Frances Kahn Zemans, Public Access: The Ultimate Guardian of Fairness in our Justice System, 79 JUDICATURE 173, 173 (1996). 201. Id.

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228 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 system is upheld. “A responsible press has always been regarded as the handmaiden of effective judicial administration . . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial process to extensive public scrutiny and criticism.”202 Following this admonition, the Supreme Court’s decision in Richmond Newspapers and its progeny undoubtedly recognized for the first time a qualified First Amendment access to many proceedings and documents, recognizing far greater rights for the media.203 Nevertheless, because the adjudicative process is constantly changing, the impact of Richmond Newspapers has been curtailed at the expense of public trust and faith in the judiciary. A study conducted by the National Center for State Courts and sponsored by the Hearst Corporation surveyed 1,826 Americans about their opinion of the judiciary.204 Analysts learned that only twenty-three percent of Americans have a great deal of trust and confidence in courts in their community, while thirtytwo percent have a great deal of trust and confidence in the United States Supreme Court.205 Similarly, Americans expressed dissatisfaction with the way courts handle cases.206 One possible cause of American’s lack of confidence in the judiciary is the “[p]articular suspicion [that] arises when public institutions have provided open access and later denied it to the public.”207 Taking away the presumption of openness to court documents and proceedings will do nothing more than fuel American distrust in 202. Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). 203. Compare Joel M. Gora, THE RIGHTS OF REPORTERS, THE BASIC ACLU GUIDE TO A REPORTER’S RIGHTS (1977) with THE REPORTER’S KEY, supra note 74. 204. National Center for State Courts, National Conference on Public Trust and Confidence in the Justice System, National Action Plan: A Guide for State and National Organizations, http://www.ncsconline.org/WC/Publications/ Res_AmtPTC_NatlActionPlanPub.pdf (last visited Nov. 14, 2005). 205. National Center for State Courts, How the Public Views the State Courts: A 1999 National Survey, 1999, http://www.ncsconline.org/WC/Publications/Res_AmtPTC_PublicViewCrtsPu b.pdf (last visited Nov. 15, 2005). See also JOSEPH R. WEISBERGER, THE CURRENT STATE OF PUBLIC TRUST AND CONFIDENCE IN THE JUSTICE SYSTEM 2 (n.d.). 206. How the Public Views the State Courts, supra note 205. 207. Zemans, supra note 200, at 175.

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the judiciary. Indeed, “[p]ublic trust and confidence in the way [courts] do business is based, in part, on an open judiciary, which means the judicial system must have some degree of transparency to the extent permitted by law.”208 Courts continually concern themselves with providing easier access to court records,209 often overlooking that the real problem is the extent of access, not the ease of access. Courts must realize that “[p]ublic trust and confidence in the courts are based on an open judiciary and accurate public perception of it – for which the bench, the bar, and the media are collectively responsible.”210 A return to the principles that guided the Richmond Newspapers plurality is necessary to ensure that the public and the media continue to scrutinize the judiciary. It is only then that public confidence in the judiciary will rise because, of course, “the means used to achieve justice must have the support derived from public acceptance of both the process and its results.”211 VI. CONCLUSION

Interpreting the Supreme Court’s test as disjunctive is the key for which the media has long awaited. The First Circuit’s recognition that the Supreme Court test, properly applied, is a disjunctive test is a valiant stride toward restoring the presumption of openness couched within the First Amendment’s grant, but courts must go one step further before achieving the true test contemplated by the Richmond Newspapers plurality. Moreover, courts must extract policy decisions favoring closure from its history and logic inquiry and only contemplate these considerations after determining whether a qualified right of access vests. Although court watchers have continually anticipated that it would not be long before the Supreme Court took up the issue,212 with the denial of certiorari in N. Jersey

208. Ronald T. Y. Moon, Together, Courts and Media Can Improve Public Knowledge of the Justice System, 87 JUDICATURE 205, 205 (2004). 209. THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE 465 (A.B.A. 2001). 210. Ronald T. Y. Moon, supra note 208, at 205. 211. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980) (plurality). 212. See Steinfield, supra note 24, at 15.

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230 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:193 Media Group v. Ashcroft,213 it seems the wait may be longer than media outlets hoped. Nevertheless, it is important that courts recognize it is not necessary to wait until the Supreme Court resolves the issue. The Supreme Court’s ambiguous holding, with regard to whether the test is conjunctive or disjunctive, leaves lower courts in a position to interpret and apply the test. Applying the Court’s holding as a disjunctive test will restore the First Amendment’s presumption of openness by reopening the courthouse door and granting the media a qualified right of access to carefully scrutinize court proceedings and documents. Although the door will be bolted, keeping the media out, when a defendant’s Sixth Amendment rights are in jeopardy or when closure is necessary to preserve “higher values,” the media will at minimum have the chance to observe innovative adjudicative proceedings and documents. Media observation of both traditional and modern adjudicative processes continues to be essential in restoring public faith in the judiciary.

Nicole J. Dulude*

213. See discussion supra Part III.A. * Juris Doctor Candidate, Roger Williams University School of Law; B.A., University of Rhode Island (Journalism & Political Science). I would like to especially thank my parents, David and Joyce Dulude, for their continual love, support, and guidance. I also wish to thank Roger Williams University Distinguished Visiting Professor of Law Robert B. Kent for his edits, insight, and advice in writing this Comment.

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Atlantic States Marine Fisheries Commission: Getting a Grip On Slippery Fisheries Management Coastal fishery resources that migrate, or are widely distributed, across the jurisdictional boundaries of two or more of the Atlantic States . . . are of substantial commercial and recreational importance and economic benefit to the Atlantic coastal region and the Nation.1 I. INTRODUCTION

The recent 2004 Ocean Commission Report recommended that Congress grant the Gulf States Marine Fisheries Commission (GSMFC) and Pacific States Marine Fisheries Commission (GSMFC) the same regulatory authority that Congress granted to the Atlantic States Marine Fisheries Commission (ASMFC or Commission) in 1993: Congress should develop new statutory authority, similar to the Atlantic Coastal Fisheries Cooperative Management Act, to support and empower the Gulf States and Pacific States Fisheries Management Commissions. All interstate management plans should adhere to the national standards in the MagnusonStevens Fishery Conservation and Management Act and the federal guidelines implementing these standards. States should participate in the development of the guidelines to ensure they are applicable to interstate

1. Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. § 5101(a)(1) (2000). Nationwide, estimates indicate that “recreational fishing supported nearly 350,000 jobs and generated $30.5 billion for the economy.” NOAA: Anglers Releasing Fish, Supporting Jobs, 66(1) SALT WATER SPORTSMAN, Jan. 2005, at 34.

231

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232 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 plans.2 The ASMFC received full regulatory authority in 1993 and continues to successfully reverse declines of economically and ecologically valuable fish species in state jurisdictional waters along the Atlantic Coast. Beginning with regulatory authority over striped bass in 1984,3 the ASMFC became responsible for the management of numerous other fish species such as bluefish, weakfish, summer flounder, black sea bass, scup, and tautog in 1993. As this Comment will demonstrate, the ASMFC, with regulatory authority, effectively continues to restore many important coastal fish stocks to sustainable levels through a conservative scientific approach to fisheries utilization. Similar results could be achieved for Gulf Coast and Pacific Coast fish species should Congress grant regulatory authority to the GSMFC and PSMFC as recommended by the U.S. Commission on Ocean Policy. However, before Congress grants similar regulatory authority to the GSMFC and PSMFC, a closer examination of the ASMFC’s authority is necessary to correct apparent flaws in its internal decision-making structure and processes.4 Part II of this Comment presents an overview of the national fisheries management structure, providing the context in which the ASMFC’s role fits. Part III demonstrates that the ASMFC, with regulatory authority over member states, successfully manages coastal fisheries resources while the GSMFC and PSMFC, without regulatory authority, are unsuccessful. Part IV enumerates important ASMFC procedural and substantive rules, identifies flaws in the decision-making processes of the Commission, and uses a recent New Jersey appeal as a case study

st

2. An Ocean Blueprint for the 21 Century: Final Report of the U.S. Commission on Ocean Policy – Pre-Publication Copy 241 (2004), http://www.oceancommission.gov/documents/prepub_report/pre_pub_fin_repo rt.pdf [hereinafter Ocean Commission Report]. The Commission’s Report represents only the second set of such recommendations for a national ocean policy in the nation’s history. 3. See discussion infra Part III.A.1. 4. One main concern is that political persuasion will skew the actions and decisions of commissioners regarding fishery-management measures, especially allocation issues, away from the proper basis for fisherymanagement decisions: sound science. See MANAGING OUR NATION’S FISHERIES: PAST, PRESENT, AND FUTURE 153-54 (David Witherell ed., 2004) [hereinafter MANAGING OUR NATION’S FISHERIES].

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to demonstrate the shortcomings of fishery management regulation development within the Commission. Part V urges Congress to grant regulatory authority to the GSMFC and PSMFC, but only after recognizing and addressing the problems apparent within the ASMFC. Part VI concludes that successful ASMFC management is not devoid of dangerous non-science influences, which must be checked by a respected appeals process within the Commission. II. OVERVIEW OF NATIONAL FISHERIES MANAGEMENT

Congress passed the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) in 1976 to address the alarming decline in many coastal fishery resources precipitated by decades of unregulated commercial and recreational fishing.5 The Magnuson Act governs fisheries in federal waters, or the Exclusive Economic Zone (EEZ).6 In addition, the Magnuson Act created eight Regional Fisheries Management Councils to incorporate the viewpoints of many stakeholders, including commercial and recreational fishermen, as well as environmental and consumer groups, into regional fishery decision-making.7 The Regional Fisheries Management Councils work to represent the interests of their respective coastal regions and create Fishery Management Plans (FMPs) for each federally-managed fish species existing within a regional Council’s jurisdiction.8 FMPs must comply with the ten national standards for fishery conservation and management as set forth in the Magnuson Act.9 5. Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801(b)(1) (2000) (“It is therefore declared to be the purposes of the Congress in this chapter - (1) to take immediate action to conserve and manage the fishery resources found off the coasts of the United States. . . . ”). 6. Id. § 1801(b)(1)(A). 7. Id. § 1801(b)(5) (noting the function of the Regional Fishery Management Councils is to involve participation by State and regional “fishing industry, consumer and environmental organizations, and other interested persons” in fishery management, including assessments of the “social and economic needs of the States”). 8. Sharon R. Siegel, Note, Applying the Habitat Conservation Model to Fisheries Management: A Proposal for a Modified Fisheries Planning Requirement, 25 COLUM. J. ENVTL. L. 141, 146 (2000). 9. 16 U.S.C. § 1851(a). The Magnuson Act proscribes 10 standards for fishery conservation and management: (1) Conservation and management measures shall prevent

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234 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 Although the national fisheries management structure under the Magnuson Act draws some criticism, many managers claim that, under the Magnuson Act, overfishing has been drastically slowed or reversed due to Council management.10

overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. (2) Conservation and management measures shall be based upon the best scientific information available. (3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. (4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. (5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose. (6) Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. (7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication. (8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities. (9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. (10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea. Id. 10.

MANAGING OUR NATION’S FISHERIES, supra note 4, at 152-53.

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The Magnuson Act reserved fishery regulation within state jurisdictional waters to the respective states.11 State waters normally include rivers, estuaries, and coastal waters from the shoreline to three miles seaward, or the EEZ’s shoreward boundary. Florida and Texas are exceptions, where state jurisdiction extends from the coast to nine miles seaward into the Gulf of Mexico, shoreward of the EEZ.12 States are free to implement various regulatory and enforcement practices to manage fisheries in state waters, including statutes, conservation and management regulations, and judicial decisions.13 Depending on the state, these devices may be used to tighten or relax conservation requirements or enforcement measures with regard to fish species within state waters.14 Migratory fish, however, do not recognize the boundaries between state jurisdictional waters, and frequently move between waters belonging to several different states. Obviously, with such movement, fishery resources can be exposed to several different fishery regulation schemes, varying by state.15 The result of varying harvests on “mature or spawning stocks in one jurisdiction [is] reduce[d] recruitment16 and long term abundance in neighboring jurisdictions.”17 Excessive harvest of fish stocks in one or several jurisdictions could deprive more conservative, neighboring jurisdictions of their access to the coastal fishery Without cooperative management, hypothetical resource.18 fishermen in state A may be permitted by law to take ten (10) fish

11. See 16 U.S.C. § 1856(a)(1), (a)(2)(A); New York v. Evans, 162 F. Supp. 2d 161, 163 (E.D.N.Y. 2001). 12. John Alton Duff & William C. Harrison, The Law, Policy, and Politics of Gillnet Restrictions in State Waters of the Gulf of Mexico, 9 ST. THOMAS L. REV. 389, 393 (1997) [hereinafter Duff & Harrison]. 13. Sarah Bittleman, Toward More Cooperative Fisheries Management: Updating State and Federal Jurisdictional Issues, 9 TUL. ENVTL. L.J. 349, 359 (1996). 14. See id. 15. See RICHARD K. WALLACE & KRISTEN M. FLETCHER, UNDERSTANDING FISHERIES MANAGEMENT 26 (2d ed. n.d.) 16. “Recruitment” is the ability of a fish stock to reproduce and protect young fish until they reach maturity. See id. at 43. 17. ADVISORY COMMITTEE OF THE ATLANTIC STATES MARINE FISHERIES COMMISSION, INTERSTATE FISHERIES OF THE ATLANTIC COAST 5 (Paul E. Hamer et al. eds., 1991) [hereinafter INTERSTATE FISHERIES OF THE ATLANTIC COAST]. 18. Id.

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236 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 per day of a specific fish species, while fishermen in state B are permitted to take twenty (20) fish per day of the same species. Such regulatory inconsistency completely undermines state A’s conservation efforts by allowing fishermen in state B to remove the very fish that state A seeks to preserve, and removes any incentive for state A to remain more conservative in its regulations.19 Unfortunately, this fragmented regulatory scheme currently exists among states bordering both the Gulf of Mexico and the Pacific Ocean. The states bordering the Atlantic Ocean are the only coastal states acting under an enforceable cooperative management scheme. A. Congress created the three regional Commissions to work within the national structure Congress created the three Commissions, the ASMFC,20 the GSMFC,21 and the PSMFC22 prior to 1950. The Commissions were created to promote “the better utilization” of coastal Atlantic, coastal Pacific, and Gulf of Mexico fisheries. The Commissions provided a means for joint fisheries management development by member states for the “promotion and protection” and “prevention of the physical waste” of interjurisdictional fisheries residing in the waters of a Commissions’ member states.23 The Commissions’ original purpose was to provide coastal states an opportunity to act cooperatively in developing fishery regulations for migratory stocks.24 States consenting to their regional Commission Compact were to use their coastal Commission as a vehicle for joint management of important 19. See 16 U.S.C. § 5101(a)(5). 20. Atlantic States Marine Fisheries Commission Compact, Pub. L. No. 77-539, 56 Stat. 267 (1942) [hereinafter ASMFC Compact], available at http://www.asmfc.org/publications/revisedCompactRules&Regs0304.pdf. 21. Gulf States Marine Fisheries Commission Compact, Pub. L. No. 8166, 63 Stat. 70 (1949) [hereinafter GSMFC Compact], available at http://www.gsmfc.org/compact.html. 22. Pacific States Marine Fisheries Commission Compact, Pub. L. No. 80232, 61 Stat. 419 (1947) [hereinafter PSMFC Compact], available at http://www.psmfc.org/ (follow “Publications & Maps” hyperlink; then follow “PSMFC Compact” hyperlink). 23. GSMFC Compact, 63 Stat. at 70 (art. I); PSMFC Compact, 61 Stat. at 419-20 (art. I); ASMFC Compact, 56 Stat. at 267 (art. I). . 24. Elizabeth C. Scott, Note, Managing the Maine Lobster Fishery: An Evaluation of Alternatives, 20 VA. ENVTL. L. J. 573, 583-84 (2001).

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coastal fisheries with other member states rather than continuing to promulgate regulations state by state.25 Thus, Congress designed the Commissions to serve as sounding boards capable of representing the various fishery interests and to protect the common good with regard to fisheries.26 Each Commission operates an Interstate Fisheries Management Program (Program) to “promote the conservation of. . .fishery resources . . . based on the best scientific information available, and provide adequate opportunity for public participation.”27 Through the Program, the Commissions carry out their primary function of making joint fishery regulation recommendations to the member states through detailed FMPs, outlining the optimal regulatory approach for each individually managed fish species. Theoretically, if every state implemented its Commission’s recommended FMP for each species, the coastal stock would be managed as one ecologically related group of populations. To achieve this goal, and in an effort to “promote the conservation” of fishery resources,28 the Commissions perform fact-finding and deliberation incorporating both the best scientific information available as well as regional public comment to arrive at the most appropriate regulatory measures for each species.29 The sum of a Commission’s FMPs, one for each species, would represent a comprehensive management structure for all coastal fisheries governed by the individual commissions, comprising the best management scheme for targeted species because species would be managed as a coastal interjurisdictional resource rather than a resource belonging to individual states.

25. Id. at 583-84; see, e.g., ASMFC Compact, 56 Stat. at 267 (art. II) (“This agreement shall become operative . . . as to those states executing it whenever any two or more of the [coastal states] have executed it . . . .”); id. at 269 (Art. XII) (“This compact shall continue in force and remain binding upon each compacting state until renounced by it.”). 26. Scott, supra note 24, at 583-84. 27. See, e.g., ATLANTIC STATES MARINE FISHERIES COMMISSION, INTERSTATE FISHERIES MANAGEMENT PROGRAM CHARTER, § 1(b)–(c)(2002), available at http://www.asmfc.org/publications/isfmpCharter03.pdf [hereinafter ASMFC Charter]. 28. See, e.g., ASMFC Charter, supra note 27, § 4(g). 29. Scott, supra note 24, at 584.

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238 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 Although the Commissions’ jurisdiction for fishery regulation is mainly constrained to fisheries existing within state waters, the Commissions work jointly with the Regional Councils established by the Magnuson Act to establish similar FMPs for fisheries existing abundantly in both state waters and the federal exclusive economic zone (EEZ). For example, Congress directs the ASMFC to consult with the appropriate Regional Councils30 to develop FMPs complementary to those developed by the Council(s) regulating the same species in nearby federal waters.31 Congress even directs the ASMFC to create a joint FMP to be implemented in both state waters and nearby federal waters for a species in the absence of an equivalent FMP by the appropriate Regional Council. Because it will reach into federal waters, such an FMP must comply with the ten national standards set forth in the Magnuson Act.32 B. All three commissions only served advisory roles until 1993 Congress designed the three Commissions to serve only advisory roles in the management of fishery resources in state waters, and to be powerless to compel member states to adopt the recommendations formed by the Commission as the preferred fishery management regulations for individual fish species.33 Essentially, even after Congress created the three regional Commissions, member states were no more obligated to cooperatively manage migratory fish stocks as they were prior to the creation of the Commissions. The same remains true today for GSMFC member states and PSMFC member states. The ASMFC member states,34 however, are required to follow regulatory

30. Examples of two Regional Councils under the Magnuson Act with which the ASMFC cooperates are 1) the New England Fishery Management Council (NEFMC) and 2) the Mid-Atlantic Fishery Management Council (MAFMC). The Magnuson Act requires these Councils to develop FMPs for federal waters or economic exclusive zone (EEZ). 31. 16 U.S.C. § 5104(a)(1). 32. Id. § 5103(b)(1)(B); see supra text accompanying note 9 for a list of the ten FMP standards set forth in the Magnuson Act. 33. Scott, supra note 24, at 584. 34. The ASMFC member states are: Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, and Florida. ASFMC Charter, supra note 27, § 8(ll).

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recommendations developed by the Commission. C. Congress granted the ASMFC complete regulatory authority in 1993 Between 1950 and 1984, the ASMFC served only an advisory role in fisheries regulation development to its member states. In 1984, in response to the Atlantic striped bass crisis,35 Congress passed the Atlantic Striped Bass Conservation Act,36 giving the ASMFC regulatory authority only over the coastal management of striped bass. Then, in 1993, Congress made a finding that the then-existing scheme of state-by-state regulation of other species was inadequate to address the migratory nature of fishery resources along the Atlantic coast: [b]ecause no single governmental entity has exclusive management authority for Atlantic coastal fishery resources, harvesting of such resources is frequently subject to disparate, inconsistent, and intermittent State and Federal regulation that has been detrimental to the conservation and sustainable use of such resources and to the interests of fishermen and the Nation as a whole.37 Based on this finding, Congress passed the Atlantic Coastal Fisheries Cooperative Fisheries Management Act,38 delegating regulatory authority to the ASMFC over all important migratory fish stocks of the Atlantic coast39 and requiring that the Commission design fishery management plans (FMPs) for those important migratory species to be followed by the states.40 Each 35. See discussion infra Part III.A.1. In the early 1980s, Atlantic striped bass were feared by many to be on a course for extinction by the beginning of the 21st century. 36. 16 U.S.C. § 5151. 37. 16 U.S.C. § 5101(a)(3). 38. 16 U.S.C. §§ 5101 – 5108. 39. Species currently regulated by the ASMFC are: American Eel, American Lobster, Atlantic Croaker, Atlantic Herring, Atlantic Menhaden, Atlantic Sturgeon, Black Sea Bass, Bluefish, Horseshoe Crab, Northern Shrimp, Red Drum, Scup, Shad and River Herring, Spanish Mackerel, Spiny Dogfish and Coastal Sharks, Spot, Spotted Seatrout, Striped Bass, Summer Flounder, Tautog, Weakfish, and Winter Flounder. Atlantic States Marine Fisheries Commission, Managed Species, http://www.asmfc.org/ (follow “Managed Species” hyperlink). 40. 16 U.S.C. § 5104(a)(1).

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240 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 FMP must include a list of all states required to comply with the plan, and every listed state must adopt, implement, and enforce the measures delineated in the FMP.41 In other words, the ASMFC must develop FMPs for each migratory fish species in need of cooperative regulation, and member states are obligated to implement the regulations contained in the FMPs developed by the ASMFC for each species. The Secretary of Commerce enforces FMPs developed by the ASMFC. The ASMFC monitors state compliance with FMPs for each species. States achieve compliance individually by implementing into state law the regulations recommended by the ASMFC for each managed species.42 If the ASMFC finds that a state is not in compliance with the current FMPs for a particular species, the ASMFC reports to the Secretary of Commerce who, in turn, may impose a moratorium on fishing for the species in question in the waters of the non-compliant state.43 Thus, if the ASMFC found a member state in non-compliance with the FMP or summer flounder, for example, the Secretary of Commerce could impose the federally-enforced moratorium on all targeted fishing of summer flounder, causing stress on local fisheries-dependent economies and angering commercial and recreational fishermen. Therefore, the moratorium threat deters member states from choosing not to comply with ASMFC fishery management plans, and allows the ASMFC to regulate migratory fishery resources more effectively than it would without such regulatory authority over the states.

41. Id. § 5104(b). 42. States employ varying methods of promulgating fishery regulations. Some states, like New Jersey, require an act of the state legislature to change existing fishery regulations for striped bass, but allows the New Jersey Department of Environmental Protection to make changes to fishery regulations for other New Jersey species in the New Jersey Administrative Code without an act of the state legislature. See, e.g., N.J. STAT. ANN. §§ 23:544-45.1 (West 1997 & Supp. 2005). 43. 16 U.S.C. § 5106(c)(1).

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III. THE REGULATORY ROLE OF THE ASMFC, UNLIKE THE ADVISORY ROLES OF THE GSMFC AND PSMFC, PROVIDES EFFECTIVE COASTWIDE FISHERY MANAGEMENT

A. Demise of critical species has been stopped or reversed by the ASMFC The ASMFC currently manages more than twenty fish and shark species of varying ecological and economic importance.44 The ASMFC gained regulatory authority over Atlantic striped bass in 1984 and regulatory authority over summer flounder in 1993, both very important species economically and ecologically for the Atlantic seaboard. Regulatory authority enabled the ASMFC to slow drastic declines of both striped bass and summer flounder stocks, and to restore both species to historic levels. 1. Atlantic striped bass fully recovered under ASMFC management Atlantic striped bass are an important migratory coastal commercial and recreational fishery resource45 that utilize the nursery and brackish areas of rivers and estuaries to spawn in late spring and early summer.46 Chesapeake Bay, Delaware Bay, Hudson River, and Roanoke River/Albemarle Sound are the four major estuarine systems that contribute juvenile striped bass to the coast-wide stock.47 Striped bass provided an important fishery resource until the mid-1970s when annual landings48 began to decrease dramatically. Estimates in 1985 indicated that the striped bass coastal stock plummeted to only 600,000 individual

44. See supra text accompanying note 39. 45. John P. Almeida, Note, Nonpoint Source Pollution and Chesapeake Bay Pfiesteria Blooms: The Chickens Come Home to Roost, 32 GA. L. REV. 1195, 1215 (1998). 46. See INTERSTATE FISHERIES OF THE ATLANTIC COAST, supra note 17, at 77. 47. Id.; FISHERIES MANAGEMENT REPORT NO. 24 OF THE ATLANTIC STATES MARINE FISHERIES COMMISSION: AMENDMENT 5 TO THE INTERSTATE FISHERY MANAGEMENT PLAN FOR ATLANTIC STRIPED BASS § 3 (March 1995) [hereinafter Striped Bass Amendment 5](stating that the Hudson River, Delaware Bay, Chesapeake Bay, and Albemarle Sound were producer areas). 48. “Landings” are “fish taken from the water and placed on shore; harvest.” INTERSTATE FISHERIES OF THE ATLANTIC COAST, supra note 17, at 126.

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242 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 fish swimming the Atlantic coast.49 In 1981, the ASMFC responded conservatively to the sharp decline in striped bass abundance by recommending size limits, bag limits, and spawning area closures to reduce fishing mortality.50 However, states were not required to adhere to the recommendations, restricting the effectiveness of the ASMFC management plan. The Atlantic Striped Bass Conservation Act51 of 1984 cured these implementation and enforcement problems by giving the ASMFC its first regulatory powers over striped bass.52 Through the Atlantic Striped Bass Conservation Act, Congress recognized the importance of cooperative management for the striped bass stock.53 The Atlantic Striped Bass Conservation Act gave the ASMFC the authority to determine whether coastal states had adopted necessary regulations to restore striped bass populations and whether states were enforcing those regulations.54 Congress authorized the Secretary of Commerce to enforce ASMFC findings of state noncompliance with the coastal FMP for striped bass by means of a fishing moratorium on striped bass.55 Thus, the threat of a moratorium encouraged states to comply with ASMFC regulations, where a finding of noncompliance and resulting moratorium would cause millions of dollars of lost business at tackle stores, marinas, and seafood markets. 49. See FISHERY MANAGEMENT REPORT NO. 41 OF THE ATLANTIC STATES MARINE FISHERIES COMMISSION: AMENDMENT 6 TO THE INTERSTATE FISHERY MANAGEMENT PLAN FOR ATLANTIC STRIPED BASS 1 (Feb. 2003), available at http://www.asmfc.org/ (follow “Managed Species” hyperlink; then follow “Striped Bass” hyperlink; then follow “Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass (February 2003)” hyperlink) [hereinafter Striped Bass Amendment 6]. 50. INTERSTATE FISHERIES OF THE ATLANTIC COAST, supra note 17, at 79. Minimum size limits prevent fishermen from taking fish smaller than a scientifically-determined critical size that allows for reproduction. Bag limits prevent fishermen from removing more individual fish than that scientifically determined to be a safe level of harvest for the re-growth of the stock. Spawning area closures are timed to allow spawning fish to carry out reproductive activities with minimal disturbance. 51. Atlantic Striped Bass Conservation Act, 16 U.S.C. § 5151-58. (2000). 52. INTERSTATE FISHERIES OF THE ATLANTIC COAST, supra note 17, at 79. 53. 16 U.S.C. § 5151(b) (the purpose of Congress is “to support and encourage. . .effective interstate action regarding the conservation and management of the Atlantic striped bass”). 54. Id. § 5153(a)(1), (2). 55. Id. § 5154(a).

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Following passage of the Atlantic Striped Bass Conservation Act in 1984, the Atlantic striped bass populations fully recovered, and fishermen now report record numbers of striped bass.56 The total coastal striped bass population increased from 600,000 fish in 1984 to 45.6 million fish in 2001, while fishing mortality remains below the ASMFC target.57 Congress’ decision to mobilize an enforceable cooperative interstate management effort through the ASMFC played a significant role in the unprecedented reversal of the disastrous decline in striped bass abundance.58 2. ASMFC successfully manages summer flounder The summer flounder fishery, which reached historic lows in the early 1990s, provides another example of the effectiveness of the ASMFC’s regulatory role. In 1990, coastal commercial landings declined to 9.3 million pounds, while coastal recreational landings reached a low in 1989 of 3.2 million pounds.59 The ASMFC (managing flounder in state waters) in cooperation with the Mid-Atlantic Fishery Management Council (managing flounder in the federal EEZ) imposed annual commercial and recreational coastal quotas translating into minimum size limits and bag limits on harvested flounder, and data-collection and record-keeping requirements on dealers and processors of summer The Atlantic Coastal Fisheries Cooperative flounder.60 Management Act required ASMFC member states to begin implementing and enforcing the Commission’s summer flounder regulations in 1993, and states continue to implement various amendments and addendums to the summer flounder FMP. Evidence shows that summer flounder stocks are recovering under ASMFC management: since 2001, coastal commercial summer flounder landings have topped 13.8 million pounds each year, and

56. Almeida, supra note 45, at 1215. 57. Striped Bass Amendment 6, supra note 49, § 1.2.2. 58. Almeida, supra note 45, at 1215-16. 59. TONI KERNS, 2004 REVIEW OF THE ATLANTIC STATES MARINE FISHERIES COMMISSION FISHERY MANAGEMENT PLAN FOR SUMMER FLOUNDER § III (2004), available at http://www.asmfc.org/speciesdocuments/sfscupbsb/ summerflounder/annualreports/fmpreviews/04fmpreview.pdf. 60. Id. § VI. Minimum size limits set a minimum length for landed fish, and bag limits restrict the total number of fish that can be taken by each individual per day.

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244 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 recreational landings reached 11.6 million pounds in 2003.61 B. GSMFC and PSMFC do not effectively manage coastal fisheries without regulatory authority Unlike the ASMFC with regulatory authority, the GSMFC and PSMFC cannot successfully design FMPs which are then implemented and enforced by their member states, preventing meaningful impact by those Commissions on their respective region’s coastal fisheries. For example, the lack of regulatory authority prevents the PSMFC from taking control of the spiny dogfish problem in the Pacific Northwest, and prevents the GSMFC from uniting the over-reactive response to public outcry in the Gulf states over gill-net fishing. 1. Spiny dogfish are actively managed by the ASMFC, while PSMFC is powerless to compel management by Pacific states Spiny dogfish are small sharks valuable for their meat, fins, liver, cartilage, and hides, and were at one time widely abundant in the North Atlantic and North Pacific Oceans along the coast of the United States.62 However, similar to many other commercially desirable fish species, the use of trawls, gillnets, line gear, and recreational harvest decimated many populations of spiny dogfish causing near total collapse in most populations.63 Northwest Atlantic spiny dogfish stocks are considered overfished, and Northeast Pacific stocks are severely depleted; significant Northeast Pacific stock data lacks because the PSMFC and Pacific states fail to focus on the species.64 In 2000, the ASMFC took emergency action along the Atlantic coast to close state waters to commercial spiny dogfish harvest when the state’s individual management measures were inadequate.65 This action allowed the ASMFC time to develop an 61. Id. § III. 62. Sonja Fordham & Coby Dolan, A Case Study in International Shark Conservation: The Convention on International Trade in Endangered Species and the Spiny Dogfish, 34 GOLDEN GATE U. L. REV. 531, 551-53, 555 (2004). 63. Id. at 553. 64. See id. at 557-58, 560, 563. 65. MEGAN GAMBLE, TINA MOORE & GREG SKOMAL, REVIEW OF THE ATLANTIC STATES MARINE FISHERIES COMMISSION’S INTERSTATE FISHERIES MANAGEMENT PLAN FOR SPINY DOGFISH, 2003-2004 FISHING YEAR, § I (2004), available at http://www.asmfc.org/speciesdocuments/dogfish/annualreports/

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FMP to slow the decline of spiny dogfish, and the Commission planned to further tighten spiny dogfish regulations based on the results of recent data gathered in late 2004.66 ASMFC efforts to conserve spiny dogfish in state waters led to a determination in 2004 that, although the species was considered overfished, “overfishing” was no longer occurring, and mortality rates along the Atlantic coast were reduced enough to allow the population to grow.67 Meanwhile, in contrast to populations in the Atlantic, the Pacific states (with the exception of Washington’s efforts to close spiny dogfish fishing during the time of spiny dogfish “pupping,” or reproduction periods in the Puget Sound) show little evidence of managing spiny dogfish.68 Unquestionably, the presence of an enforceable cooperative management scheme on the Pacific Coast would benefit the spiny dogfish population by providing a mechanism for biologists to identify the necessary regulatory measures for spiny dogfish recovery, and compelling PSMFC member states to implement the appropriate FMP developed by the PSMFC. A PSMFC with regulatory authority would remedy the failure of the individual Pacific states to address the unglamorous spiny dogfish as an important component to the coastal ecosystem just as the ASMFC compelled state action on the spiny dogfish on the Atlantic coast. 2. A powerless GSMFC was unable to unify Gulf states’ reactions to public outcry demanding gillnet bans in Gulf waters Commercial gillnet fishing in the Gulf of Mexico is primarily governed by state law because most commercial gillnet fishing occurs within state waters, as opposed to federal waters farther In the early 1990s, conservationists in Florida offshore.69 fmpreviews/spinydogfish03-04fmpreview.pdf [hereinafter ASMFC Spiny Dogfish FMP]. 66. Id. § I; see Fordham & Dolan, supra note 62, at 560. 67. ASMFC Spiny Dogfish FMP, supra note 65, § IV. 68. Fordham & Dolan, supra note 62, at 563. 69. Duff & Harrison, supra note 12, at 393. Keep in mind that Florida and Texas state waters in the Gulf of Mexico extend to nine miles seaward into the Gulf (most state waters only extend to three miles seaward), where federal jurisdiction begins. Thus, Florida and Texas have greater impact on coastal fisheries in the Gulf than do other Gulf states because state waters include many more square ocean miles than other coastal states. See id.

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246 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 petitioned for, and eventually gained, a ban on commercial gillnet fishing in Florida’s waters to preserve fish species such as red drum and seatrout.70 Recreational fishermen and conservationists pushed for Florida to follow Texas’ lead in banning commercial gillnetting of desirable fish species, and the public outcry gained The perception that momentum and political support.71 commercial gillnet fishing would increase in states with more relaxed gillnet regulations as gillnet fishermen were forced out of more heavily regulated states caused inconsistent gillnet restrictions among the Gulf states.72 Florida ignored the GSMFC’s admonition that commercial gillnets were not scientifically shown to be destructive enough to warrant a gillnet ban in Florida waters. In this situation, public outcry may have overwhelmed sound science as the basis for the fishery management decision. Commercial fishermen resisted the legislation, insisting that fish stocks were healthy, and many scientists agreed.73 Before Florida enacted its gillnet ban, the GSMFC passed a resolution stating that Florida’s “proposed net ban referendum has not been evaluated on the basis of scientific information through the appropriate fishery management agencies.”74 The GSMFC was unconvinced at the time that gillnets caused any irreparable harm to saltwater fish stocks.75 While the Commissions are commonly perceived as conservation vehicles, they must also promote the “better utilization” of fisheries. In the opinion of the GSMFC, Florida banned its commercial gillnet fishing industry in the Gulf without a proper scientific basis. Such a decision impacts the economies of coastal towns. Because the GSMFC lacks regulatory authority over member states, Florida acted unilaterally without consulting neighboring states sharing fishery resources, which may cause

70. Id. at 392-93 (Florida banned commercial gillnets in 1994). 71. Id. at 394-95. 72. See id. at 395. The gill-net example is most useful if viewed as an indication of the lack of fishery-management uniformity resulting from a powerless GSMFC, rather than as a debate of whether conservationist or commercial interests should be favored in this particular fisherymanagement scheme. 73. Id. 74. Id. at 396, quoting GULF STATES MARINE FISHERIES COMMISSION, RESOLUTION ON THE FLORIDA NET BAN REFERENDUM (1994). 75. Id. at 396-97.

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neighboring Gulf states to prematurely relax their gillnet regulations because of the perceived conservation that Florida’s gillnet ban provides. IV. ASMFC PROCEDURAL AND SUBSTANTIVE RULES PROVIDE MODEL ELEMENTS AND LESSONS LEARNED FOR POTENTIAL GSMFC AND PSMFC DECISION-MAKING STRUCTURE.

A. ASMFC membership and decision-making structure, rules, and regulations The ASMFC Compact76 allows member states consenting to the Compact to follow a uniform FMP for fisheries that migrate along the coast, thus uniformly managing the fishery as a coastal stock instead of on a state-by-state basis.77 Congress declared that “[t]he failure by one or more Atlantic States to fully implement a coastal fishery management plan can affect the status of Atlantic coastal fisheries, and can discourage other States from fully implementing coastal fishery management plans.”78 Each ASMFC member state appoints three commissioners to the ASMFC; the delegation must include the executive officer of the state’s fishery resource management agency, a member of the state’s legislature or his proxy, and a gubernatorial appointee with These three state knowledge of marine fisheries issues.79 delegates form the state’s quorum at Commission meetings, and decide how their member state will vote on fishery management motions.80 In addition to the voting member states, the United 76. ASMFC Compact, 56 Stat. at 267. 77. ASMFC Compact, amend. I, Pub. L. No. 81-721, 64 Stat. 467 (1950) (referring to Amendment One). 78. 16 U.S.C. § 5101(a)(5). See discussion supra Part II. 79. ASMFC Compact, 56 Stat. at 267-68 (art. III). 80. Atlantic States Marine Fisheries Commission Rules and Regulations art. III § 1 (1996), available at http://www.asmfc.org/ (follow “Publications” hyperlink; then follow “ASMFC Compact: Rules & Regulations (revised December 2003)” hyperlink) [hereinafter ASMFC Rules and Regulations]; see supra text accompanying note 34 (listing of ASMFC member states). When any member states’ quorum decides to make a motion to introduce or change a particular management measure with regard to a managed fish species, and that motion is seconded by a different state, a vote of member states is taken to decide whether a motion will pass or fail. The vote of each member state is determined by the position of the state’s three delegates to the Commission; whichever position two of the three state’s delegates take

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248 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 States Fish and Wildlife Service, the National Marine Fisheries Service, the Potomac River Fisheries Commission and the District of Columbia are also voting members, and may vote on any matter affecting their respective jurisdictions.81 1. Procedural rules for fishery-management decision-making a. Motions and votes are required for major decisions The ASMFC Compact requires an affirmative vote of a majority of member states on recommendations regarding a species in which a member state has an interest.82 States have an “interest” in a species if a particular species is customarily found in the state’s waters, if the species spawns in the territorial waters of the state, or if the citizens of the state have taken five percent or more of the total Atlantic coast catch of that species for the five preceding years.83 Commissioners discuss motions for the addition of new fishery management measures or alteration of existing fishery management measures and work to refine the motions’ language. States then vote on the motion, each state representing one vote, and the new or changed fishery management measures become binding on all member states when a majority of member states approve the motion.84

determine whether a member state votes for or against a particular motion. ASMFC Rules and Regulations, supra, art. III § 1. 81. ASMFC Charter, supra note 27, § 3(a)(2)-(3). 82. ASMFC Compact, 56 Stat. at 268 (art. VI) (“No recommendation shall be made by the Commission in regard to any species of fish except by the affirmative vote of a majority of the compacting states which have an interest in such species. The Commission shall define what shall be an interest.”). 83. ASMFC Rules and Regulations, supra note 80, art. VI § 5(a-c) (“A state shall be deemed to have an interest in a fishery if, according to the latest published statistics or available records of the National Marine Fisheries Service or equivalent state statistics, it meets any of the following criteria: (a) such fish are found customarily in its territorial water; (b) such fish are customarily or periodically in the territorial waters of such state for the purpose of spawning or in transit to and from spawning grounds; or (c) the citizens of the state are recorded as having taken 5 percent or more of the total Atlantic coast catch of the species of fish in any of the five preceding years.”). 84. Id. at art. III § 2; ASMFC Compact 56 Stat. at 268 (art. VI).

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b. Major decisions are made available for public comment The Atlantic Coastal Fisheries Cooperative Management Act and the ASMFC Charter require that fishery-management decisions involve adequate public disclosure and comment.85 The Commission must provide the public an opportunity to review and comment upon the problems and alternative solutions addressed by a Public Information Document as well as drafts of amendments to FMPs which must be made “widely available” to the public.86 Because each state with an interest in a regulated fish species votes to approve the measures contained in an FMP, draft documents of FMPs containing several different allocation options for the state are circulated to several public hearings within each state. The Commission considers public comments when it votes on the final FMP or amendment FMP document for each species. This procedural measure allows the public in each state to express whether they would like to be more or less conservative while staying within the scientifically permissible limits for fishery regulation of that species as determined by the Commission.87

85. 16 U.S.C. § 5104(a)(2)(B) (directing the ASMFC to establish procedures to ensure that there is adequate opportunity for public participation in the plan preparation process, including a minimum of four public hearings and procedures for consideration of written comments from the public); ASMFC Charter, supra note 27, § 1(c) (“It is the policy of the Commission that its Interstate Fishery Management Program . . . provide adequate opportunity for public participation.”). 86. ASMFC Charter, supra note 27, § 6(c)(3)-(8) (“The Management Board/ Section shall. . .ensure that the public has an opportunity to review and comment upon the problems and alternative solutions addressed by the Public Information Document.”); Id. § 6(c)(8)(ii)(“. . .The Commission will make the draft FMP or amendment and the accompanying Public Information Document widely available to the public, including fishermen, consumers, [and] government agencies and officials. . .throughout the geographic range of the draft FMP or amendment.”). 87. See id. State constituents may be allowed to choose between allocation options for a species. For example, the public may be left to decide whether the state should allow individual fishermen to capture two fish at twenty-eight inches each, one fish at thirty-four inches with a second at twenty-four inches, only one fish at twenty-eight inches, and so on. No state may adopt an allocation option that is less conservative than scientifically determined to be in the best interest of that species’ coastal stock. See id.

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250 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 c. Annual reviews of FMPs provides adaptive management Plan Review Teams for each species review the species’ FMP annually and report to each species’ ASMFC Management Board, addressing the status of the fishery, the status of the FMP, and the success of the FMP in reaching its goals.88 This annual review provision prevents an ineffective FMP from remaining in place too long, and allows each respective Management Board to frequently assess whether an amendment FMP is needed to achieve fishery management goals. Also, an emergency action provision in the ASMFC Charter allows the Commission to address serious unforeseeable threats to fishery resources or to the public health without requiring strict adherence to the procedural and substantive decision-making rules.89 2. Substantive rules for fishery-management decision-making a. Decisions based upon “best scientific information available” FMPs shall be based on the “best scientific information available.”90 Data reflecting the current state and future trends of a fishery should be most influential in ASMFC management decisions. This “best science” rule replaces less reliable nonscientific motivations in fishery management negotiation and thus prevents arbitrary fishery management decision-making within the Commission. As discussed infra,91 courts have applied a relaxed standard when scrutinizing whether the ASMFC has used the “best scientific information available,” and will usually allow more conservative fishery regulations than dictated by science to compensate for scientific uncertainty.92

88. Id. § 6(c)(2). 89. Id. § 6(c)(10). Emergency action may only be taken after a two-thirds vote of member states, and public comment must be held immediately following the decision to invoke emergency action. Id. 90. 16 U.S.C. § 5104(a)(2)(A); ASMFC Charter, supra note 27, § 6(a)(2). 91. See discussion infra Part IV.A.2.a.i. 92. See, e.g., Fishermen’s Dock Coop. v. Brown, 75 F.3d 164, 165 (4th Cir. 1996).

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i. Courts define the “best science” rule broadly Many ASMFC rules respecting fishery management remain untouched by courts. However, the United States Court of Appeals for the Fourth Circuit interpreted the “best science” rule in Fishermen’s Dock Cooperative, Inc. v. Brown.93 In Fishermen’s Dock, the Fourth Circuit reversed the decision by the United States District Court for the Eastern District of Virginia94 to invalidate an ASMFC-promulgated FMP for summer flounder (state waters) in cooperation with the Mid-Atlantic Fishery Management Council (for federal waters). In Fishermen’s Dock, a coalition of commercial fishermen sued the Secretary of Commerce for enforcing a summer flounder FMP which increased the yearly coastal quota by only twenty-eight percent (28%) when scientific estimates indicated that summer flounder stocks could tolerate as much as a fifty-six percent (56%) increase in landings.95 The plaintiff fishermen argued that the more conservative FMP violated the “best scientific information available” rule because the record showed that flounder stocks scientifically could tolerate a larger quota.96 The District Court initially required the ASFMC to increase the quota by fifty-six percent because scientific estimates indicated that summer flounder stocks could tolerate such an increase, disallowing the more conservative quota promulgated by the Commission.97 On appeal, the Fourth Circuit held that the District Court’s narrow interpretation of the “best scientific information available” rule was incorrect; a broader interpretation

93. Id. 94. Fishermen’s Dock Coop. v. Brown, 867 F. Supp. 385 (E.D. Va. 1994), rev’d 75 F.3d 164 (4th Cir. 1996). 95. 75 F.3d at 166. The ASMFC and the Mid-Atlantic Fisheries Management Council both agreed to increase the yearly coastal quota from 12.5 million pounds in 1993 only to 16 million pounds in 1994 (twenty-eight percent increase) when scientific estimates indicated that summer flounder stocks could tolerate quotas up to 19 million pounds (fifty-six percent increase), based on recruitment levels in each of the previous five years. Id. 96. See discussion supra Part IV.A.2.a. Both the Magnuson Act (management in federal EEZ) and Atlantic Coastal Cooperative Fisheries Management Act (management in state waters) require that fisherymanagement development employ the “best scientific information available.” 97. Fisherman’s Dock, 75 F.3d at 169 (allowing a larger quota and more harvestable fish for commercial fishermen).

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252 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 was necessary to allow for consideration of both the vast uncertainty involved with fluctuations in fish populations, and the range of reasonable and rational decisions of fishery-management developers who employ their expertise to choose the most desired management measures for continued population growth.98 The Fourth Circuit reversed the decision of the District Court on the basis of the four rational reasons for electing to implement the more conservative commercial quota for summer flounder offered by the ASMFC and the Council.99 Thus, it appears unlikely that the “best science” rule will restrict the ASMFC from promulgating allocation measures in FMPs that are more conservative than scientific estimates indicate are tolerable. More conservative FMPs should fail only, as the Fourth Circuit reasoned in Fishermen’s Dock, if the FMP is unreasonably and irrationally too conservative with respect to the scientific state of the fishery at that time.100 The Fourth Circuit correctly noted the uncertainty involved with fishery science; the District Court in Fishermen’s Dock seemingly ignored this concept. Generally, more conservative management measures should decrease chances that a stock’s yearly fishing mortality rate will exceed the stock’s recruitment, and further improve the population’s opportunity to grow. However, courts should apply the “best science” rule more strictly to ASMFC decisions that are less conservative than scientific estimates indicate are tolerable by fish stocks. Fisherymanagement decisions less conservative than those dictated by

98. Id. at 171-72. 99. See id. at 171. The four reasons were: first, the truncated age structure of the summer flounder population, which magnified the risk to target F involved in any overestimate of the size of the recruitment class; second, the general proposition that a lower recruitment estimate provided a higher probability of assuring that actual F would turn out to be less than or equal to target F; third, the recognition that certain assumptions underlying the estimate of the flounder stock size might be overly optimistic; and, fourth, the belief that, since target F was to decrease significantly in 1996, it was better to deal with the current uncertainty in recruitment estimates by erring on the conservative side rather than risking an exacerbation of the painful quota decrease that had to come soon in any case. Id. 100. See id. at 171-72.

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relevant science could be immediately disastrous because of scientific uncertainty, unlike more conservative measures. In sum, courts should hold fishery regulations that are less conservative than those dictated by the best scientific information available to be per se invalid, forcing fishery-managers to use caution in final FMP decisions. b. Fair and equitable allocation of fishery resources The ASMFC Charter requires that fishery resources be fairly and equitably allocated or assigned among the states.101 This standard prohibits member states from exploiting advantageous fishery resource circumstances, such as increased coastal species abundances in state waters during spawning periods. Management of coastal fisheries as a coastal resource demands that all states receive equal access to the resource. Unequal allocation of fishery resources among the states would, positively or negatively, impact coastal economies in states where allocation is expanded or restricted. Furthermore, the “fair and equitable” rule prevents states from removing more than their determined share of the coastal fishery resource as deemed appropriate by the Commission, thus protecting the availability of the resource for other states. B. Effective compliance monitoring and federal enforcement are essential All ASMFC member states must implement fishery regulations for each species in compliance with that species’ FMP as designed by the Commission.102 The ASMFC must monitor state compliance.103 The ASMFC Management Boards104 review a 101. ASMFC Charter, supra note 27, § 6(a)(7)(ii). 102. 16 U.S.C. § 5104(b)(1); ASMFC Charter, supra note 27, § 7(a). 103. 16 U.S.C. § 5104(c); Medeiros v. Atl. States Marine Fisheries Comm’n, 327 F. Supp. 2d 145, 147 (D. R.I. 2004). 104. Within the ASMFC, each managed fish species is regulated by its own, individual “Management Board” which consists only of the member states where the particular species is known to spawn or reside. The Management Board is responsible for all decisions regarding management and regulation of its particular species. A species’ management board meets to review the new scientific findings and technical suggestions for future regulations of the species. For example, the striped bass Management Board makes motions and votes only on striped bass issues. ASMFC Charter, supra

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254 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 state’s compliance (or non-compliance) report for each particular species annually, and, if necessary, will alert the Commission’s Policy Board105 of a state’s non-compliance.106 If the Policy Board agrees with a Management Board that a state is not in compliance with an FMP, the entire Commission will consider the evidence and vote on whether to notify the Secretary of Commerce (Secretary) of a state’s non-compliance, or to allow more time for non-compliant states to achieve compliance.107 If the Secretary receives notification of a state’s noncompliance, s/he must decide whether to impose a moratorium on the fishery in question within that state. After the ASMFC notification, the Secretary then decides (1) whether s/he agrees with the Commission that a state failed to comply with the FMP and (2) whether the particular measures of the FMP that the state failed to implement are necessary for the conservation of the species in question.108 In the event both prongs are satisfied, the state may defend its position to the Secretary.109 If the Secretary’s opinion on non-compliance remains unchanged after the state’s defense, s/he “shall” impose a moratorium within six months after his final decision.110 The non-compliant state may negate an impending or existing moratorium by satisfying the Commission that it has achieved compliance with the relevant FMP.111 C. Appeals process for aggrieved states is ineffective unless respected The ASMFC recently developed a formal appeals process for aggrieved states to address procedural or substantive aspects of FMP decision-making. This appeals process differs from appeals challenging ASMFC findings of non-compliance.112 Instead, this

note 27, § 4 105. The ASMFC “Policy Board” is a reviewing body consisting of ASMFC commissioners that oversees the general operations of the many different management boards for the different species. ASMFC Charter, supra note 27, § 3. 106. ASMFC Charter, supra note 27, § 7(c). 107. Id. § 7(d)-(e). 108. 16 U.S.C. § 5106(a); Medeiros, 327 F. Supp. 2d at 147. 109. Medeiros, 327 F. Supp. 2d at 147. 110. 16 U.S.C. § 5106(c)(1). 111. Id. § 5106(c)(2). 112. ASMFC Charter, supra note 27, § 7(g) (“A State which disagrees with

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process allows states to appeal to the ASMFC Policy Board if they are “aggrieved by an action of the [Species] Management Board”113 as provided by the ASMFC Charter.114 This long-overdue appeals process provides a potential remedy to those states with a viable claim against a species’ Management Board for procedural or substantive ASMFC rules violations during FMP development. The ASMFC approved the new appeals process guidelines in August 2004. To begin, aggrieved states may only appeal management measures established through an FMP or amendment on the following grounds: 1) decision appealed is not consistent with the FMP; 2) decision resulted from a failure to follow process; 3) decision resulted from insufficient, inaccurate, or incorrect application of technical information; 4) decision resulted from inadequate addressing of historical landings period; or if 5) the management measures resulted in unforeseen consequences.115 The aggrieved state must demonstrate that all other options to gain relief at the management board level have been exhausted.116 The three chairmen will only forward the appeal to the Policy Board for comprehensive review if an initial screen of the state’s appeal results in a determination that the disputed issues fall within one of the five previously described categories.117 A majority vote by the Policy Board is required to recommend corrective action to the Management Board, which would involve necessary substantive changes in an FMP or action to ensure that procedural aspects were followed in FMP development.118 As discussed infra, commissioners’ respect for the

a Management Board’s failure to find a State out of compliance may appeal that finding to the ISFMP Policy Board. . . .”). 113. See supra text accompanying note 104 (explaining “Management Boards”). 114. ASMFC Charter, supra note 27, § 4(h). 115. ATLANTIC STATES MARINE FISHERIES COMMISSION, APPEALS PROCESS 12 (approved by the ISFMP Policy Board, August 18, 2004) (setting forth the substantive and procedural rules of the new appeal process). 116. Id. at 2. 117. See id. at 2-3. The “Chairmen” are the current ASMFC Chairman, the ASMFC Vice-Chairman, and immediate past Chairman. As described, they first review the state’s appeal to verify that the issues are appealable issues before forwarding it to the Policy Board for review. Id. 118. Id. at 3. Membership on the ISFMP Policy Board is comprised of all member states, as represented by each state’s three commissioners, a representative from the National Marine Fisheries Service, a representative

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256 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 substantive and procedural rules of the ASMFC will determine the effectiveness of the new appeals process.119 D. Flaws in Commission decision-making must be addressed The ASMFC must maintain integrity throughout fisherymanagement development because its decisions become binding on member states and the voting procedure used to finalize FMPs is inherently inadequate to uphold the procedural and substantive rules described above.120 In 2004, the State of New Jersey challenged what it claimed to be serious procedural and substantive violations of ASMFC rules in the decision-making process. The circumstances of the appeal clearly demonstrate the shortcomings in the Commission’s FMP development. 1. New Jersey’s 2004 Striped Bass Amendment 6 Appeal New Jersey appealed several ASMFC Atlantic Striped Bass Management Board (Striped Bass Board) decisions regarding Amendment 6 to the FMP for Atlantic Striped Bass (Amendment 6) in November 2004. New Jersey challenged Board action where the Board finalized FMP measures without a proper motion,121 finalized FMP measures without prescribed public comment,122 and allocated fishery resources unfairly and inequitably.123 a. Circumstances giving rise to New Jersey’s appeal As part of the striped bass FMP, the Striped Bass Board formally designated the Delaware Bay and Hudson River as “producer areas” in 1995 along with the Chesapeake Bay and Albemarle Sound because of their contributions as spawning habitat.124 For the next ten years, the Striped Bass Board managed striped bass in “coastal areas” differently from striped

of the United States Fish and Wildlife Service. The ISFMP Policy Board also includes representatives from the Potomac River Fisheries Commission and the District of Columbia, when species under those jurisdictions are implicated. See ASMFC Charter, supra note 27, § 3(a). 119. See discussion infra Part IV.D.2. 120. See discussion infra Part IV.D.1.a. 121. See discussion supra Part IV.A.1.a. 122. See discussion supra Part IV.A.1.b. 123. See discussion supra Part IV.A.2.b. 124. Striped Bass Amendment 5, supra note 47, § 3.

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bass in the four major producing areas; fishermen in “producer areas” could take smaller, more abundant resident striped bass than fishermen in “coastal areas.”125 During 2002, the Striped Bass Board revised striped bass regulations and developed Amendment 6 to the Striped Bass FMP (Amendment 6). The public commented only on a Public Hearing Draft of Amendment 6 that included abundant language indicating that the Delaware and Hudson estuaries would remain “producer areas” along with the Chesapeake Bay and Albemarle Sound under Amendment 6.126 Thus, the public never commented on proposed measures that involved any removal of “producer area” status. After the public comment period ended, the Striped Bass Board passed a vague motion in December 2002 that would govern striped bass management for the next several years.127 According to the language of this motion, the recreational harvest limits on striped bass for all member states were to remain at the “. . .level

125. “Producer areas” are designated to allow anglers near nursery habitat to take one of the more abundant smaller (twenty inches) striped bass because larger fish are rarely available in that area. Fishermen in “coastal areas,” areas other than “producer areas,” must only take larger fish. Such an allocation option biologically causes no harm to the coastal stock. 126. Public Hearing Draft of Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass §§ 1.1.1, 1.1.2.2., 1.4.1.2, 2.1.1, 3.2 (July 2002) [hereinafter Amendment 6 Public Hearing Draft]. Id. at 57. (For example, section 3.2 included the following language: “Since the VPA must be tuned with fishery-independent data, it is critical that all major producer areas (Hudson River, Delaware River, Chesapeake Bay, and Albemarle Sound/Roanoke River) are surveyed annually for spawning stock assessment.”). 127. Atlantic States Marine Fisheries Commission Striped Bass Management Board Meeting Minutes, Dec. 19, 2002, at 40 [hereinafter Minutes, Dec. 19, 2002]. The motion read: “Move that the coastal commercial quota will be restored to the base period average, 1972 to 1979, with the stipulation that Delaware will maintain its current commercial quota. The coastal recreational measures will be maintained at the level authorized in Amendment 5, two fish at 28 inches, and the current Chesapeake Bay mortality rate will not exceed F equals 0.27.” Id. The motion was approved 9-4, with New Jersey opposing. Id. at 57. (Even the Striped Bass Board Chairman failed to initially understand the motion, then offered his own clarification: “[I] think that previous motion, at least the way it stands right now, that was approved, it presumes that we’re at – I assume it presumes that we’re at the 20/28 [inch] scenario, which we have had under Amendment 5. . . .”).

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258 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 authorized in Amendment 5. . . .” New Jersey interpreted this language to indicate that Delaware Bay and Hudson River regulations would not change from Amendment 5 to Amendment 6; the State understood that Delaware Bay and the Hudson River would maintain “producer” status. Even the ASMFC acknowledged that the motion conveyed a perception that “the [Striped Bass Management] Board was implementing status quo,” and that perception “came from the Advisory Panel’s recommendation, and the majority of public comments, favoring status quo for allocation to the recreational fishery.”128 These internal observations by the ASMFC validate New Jersey’s assessment of the motion. However, after the Striped Bass Board passed the December 2002 motion, a single ASMFC commissioner, unhappy with the “producer area” versus “coastal area” method of striped bass management for Delaware Bay and Hudson River, personally instructed the striped bass Plan Development Team129 to eliminate those two estuaries from “producer” status, impacting Delaware Bay and Hudson River allocation.130 Apparently, the Board used this vague language to exercise significant latitude in drastically changing the coastal management structure under Amendment 6 without confronting the necessities of a more specific motion.131 128. Atlantic States Marine Fisheries Commission Interstate Fisheries Management Program Policy Board: Atlantic Striped Bass: Clarification on Changes to the Interstate Fishery Management Program from Amendment 5 to Amendment 6, at 1 (Aug. 27, 2003) (on file with the Author and with the ASMFC) [hereinafter ISFMP Policy Board Clarification Document]. 129. The Plan Development Team is a staff that is responsible for creating the actual Amendment documents. 130. Atlantic States Marine Fisheries Commission Striped Bass Management Board Meeting Minutes, Feb. 24, 2003, at 18 [hereinafter Minutes, Feb. 24, 2003] (Referring to the ongoing dispute about the “producer area” language, an ASMFC staff member stated: “[S]taff was given explicit direction. . .that producer areas were to be eliminated from the document. We will no longer be using the term ‘producer area.’”); Minutes, Dec. 19, 2002, supra note 127, at 59 (The actual instruction to stricken the terms “producer area” from the FMP document was given by one of New York’s three commissioners to the ASMFC: “I went so far, in fact. . .as to tell my staff member on the [Plan Development Team]. . .that when the final version of the text of Amendment 6 came to me. . .if I found the words ‘producer area’ in it anywhere, there was going to be hell to pay because it doesn’t exist and we’ve got to stop using those terms.”). 131. ISFMP Policy Board Clarification Document, supra note 128, at 1.

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New Jersey’s Commissioners sought clarification and reintroduction of the “producer area” issue at subsequent meetings for more complete deliberation, but the Striped Bass Board repeatedly ignored New Jersey’s concerns.132 The removal of “producer status” from the final Amendment 6 document was significant because the resulting allocation measures required fishermen in previous “producer area” New Jersey waters to adhere to the coastal allocation measures, disallowing fishermen to take smaller fish and forcing them to harvest only larger fish. However, the Striped Bass Board allowed Chesapeake Bay and Albemarle Sound to maintain an “exemption” to the coastal requirement without explanation; thus, fishermen in those areas could continue to harvest smaller fish. Allocation measures are critical issues in FMP development, and the discrete removal of “producer status” from the FMP impacts allocation among states; allocation decisions should never occur without strict adherence to governing rules and procedures. The Striped Bass Board approved Amendment 6 in February 2003, removing the Delaware Bay and Hudson River from “producer area” status for the first time in eight years.133 It contained provisions exempting the Chesapeake Bay and Albemarle Sound from the coastal requirements, and even relaxed requirements on Delaware Bay commercial fishermen (as opposed to recreational fishermen) without a motion, without public comment, and, New Jersey claimed, in violation of the “fair and equitable” rule.134 The next three subsections will explore these

132. Minutes, Feb. 24, 2003, supra note 130, at 9-13. New Jersey’s Commissioners to the ASMFC argued that the December 2002 motion was inconsistent with the language of the actual Amendment 6 document and without any proper justification; the Commissioners expressed displeasure that these changes were never made available for public comment in New Jersey, and that these changes were in no way the intent or within the possibilities contemplated by New Jersey on these issues. Id. at 12-13. New York’s Commissioner defended the action of removing “producer area” language from the Amendment 6 document. Id. at 19. Finally, the Chairman ended the debate without resolution by simply determining New Jersey’s clarification motions to be “out of order.” Id. at 17. 133. See Striped Bass Amendment 6, supra note 49. 134. See generally, Minutes, Dec. 19, 2002, supra note 127 (these crucial pre-Amendment 6 meeting minutes indicate no motion or discussion of any motion proposing to remove “producer area” status, exempt the Chesapeake Bay or Albemarle Sound, or to relax harvest requirements for Delaware Bay

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260 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 violations of ASMFC rules by the Striped Bass Board during Amendment 6 development. b. Changes in “producer” status violated procedural requirement of a motion and vote The ASMFC’s Striped Bass Board failed to follow Commission procedure when it approved the Amendment 6 FMP, eliminating the “producer area” versus “coastal area” method of striped bass management and awarding unexplained exemptions allowing Chesapeake Bay and Albemarle Sound fishermen to harvest smaller striped bass without a proper motion and vote. Article VI of the ASMFC Compact always requires an affirmative vote of a majority of compacting states on issues involving a recommendation regarding a species in which a compacting state has an “interest.”135 New Jersey clearly has an “interest” in striped bass: striped bass are customarily found in New Jersey waters, striped bass spawn in New Jersey waters, and New Jersey citizens have taken more than five percent of the coastal catch of striped bass annually.136 Therefore, Article VI required a motion and vote on the “producer area” and exemption issues involving changes to striped bass regulations in New Jersey waters. Here, the Striped Bass Board never made a motion nor took a vote on these critical allocation issues impacting fishermen in New Jersey waters in Delaware Bay and Hudson River. The Striped Bass Board never passed a motion explicitly removing “producer area” status from Delaware Bay and Hudson River. Similarly, the Striped Bass Board never passed a motion exempting the Chesapeake Bay and Albemarle Sound estuaries from the more stringent, conservative coastal recreational requirement, while imposing the more stringent coastal requirement in the two northernmost producing estuaries, Delaware Bay and Hudson River.

commercial fishermen). 135. ASMFC Compact 56 Stat. at 268 (art. VI); see supra text accompanying note 83; see also discussion supra Part IV.A.1.a. 136. ASMFC Rules and Regulations, supra note 80, art. VI § 5(a-c); see supra text accompanying note 83. New Jersey undoubtedly has an “interest” in striped bass under these rules.

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The ASMFC motion and vote requirement for major fishery management decisions should ensure each state an opportunity to present its viewpoint on the proposed management measure on the record to the other member states. A complete public record of the decision-making process preserves the integrity and legitimacy of the resulting regulations because the impacted citizens of member states can review their state’s stance on an issue, and the underlying basis for final fishery-management regulations approved by a formal vote of member states. This, in turn, preserves accountability within the Commission; states against which promulgated regulations are binding should have a say in the decision. Here, New Jersey fishermen lost their opportunity to keep smaller, more abundant fish in nursery habitats, and the Striped Bass Board deprived the State of the opportunity to debate the new regulation on the record. The Striped Bass Board’s neglect of the motion and vote rule prevented New Jersey’s commissioners from representing the State’s position on the issues, violating the ASMFC Compact. The ineffectiveness of the motion and vote rule will continue if not enforced within the ASMFC. c. Changes in “producer” status violated procedural requirement of public comment The ASMFC’s Striped Bass Board failed to follow Commission procedure when it approved the Amendment 6 FMP, eliminating the “producer area” versus “coastal area” method of striped bass management and awarding unexplained exemptions allowing Chesapeake Bay and Albemarle Sound fishermen to harvest smaller striped bass without allowing for public comment on the issues. The ASMFC Charter requires adequate public disclosure and public comment on FMP amendments;137 the public must have an opportunity to review and comment upon the problems and alternative solutions addressed in the draft amendment document.138 137. ASMFC Charter, supra note 27, § 1(c); see discussion supra Part IV.A.1.b. 138. ASMFC Charter, supra note 27, § 6(c)(3-8); see id. § 6(c)(8)(ii) (“[T]he Commission will make the draft FMP or amendment and the accompanying Public Information Document widely available to the public, including fishermen, consumers, government agencies and officials. . .throughout the

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262 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 The Striped Bass Board never circulated an Amendment 6 public comment document mentioning any FMP option involving the removal of “producer area” status from any estuary, nor any option that would manage the Chesapeake Bay and Albemarle Sound producing areas completely differently from the similar In Delaware Bay and Hudson River producing areas.139 contradistinction, the public comment document emphasized that “producer area” designations would be retained under Amendment 6.140 Thus, elimination of “producer area” status from established striped bass spawning habitat and the subsequent exemption granted for Chesapeake Bay and Albemarle Sound relaxing striped bass harvest limits in those waters occurred without public disclosure or comment.141 Similar to the motion and vote rule discussed supra, the public disclosure and comment rule preserves accountability in Commission decision-making because it helps expose the proposed FMP measures to scrutiny before they become binding. Without public disclosure, commissioners’ decisions escape the important check of public scrutiny where minimal other checking forces exist. The Striped Bass Board’s failure to make these issues available for proper public comment thus removed an important check on the ASMFC decision-making process.

geographic range of the draft FMP or amendment.”). 139. See Amendment 6 Public Hearing Draft, supra note 126, at 32-39. None of the listed FMP options in the draft document involved these changes. Id. Instead, the 2002 draft document involved allocation options that included different size and bag limits for producer versus coastal areas, as well as options that would create uniform regulations for producer and coastal areas. Id. 140. Id. §§ 3.2, 4.0, at 23. The public comment draft document listed the Chesapeake Bay, Delaware Bay, and Hudson River as “major producer areas” in section 3.2 and throughout section 4.0. Id. “Producer area” language also exists in the public comment draft in places where it was omitted in the final version of Amendment 6. Language such as “Jurisdictions bordering producer areas. . .shall be responsible for conducting. . .stock assessment surveys. . .,” and “producer area” language throughout the options for allocation changes suggested at least that, even if regulations in “producer areas” changed, that the “producer area” designations would remain as they had from Amendment 4 to Amendment 5. See id. §§ 3.2, 4.0, at 32-39. 141. See generally id. (never mentioning these allocation or management options throughout the document).

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d. Exemptions and Delaware Bay commercial regulations violated the substantive “fair and equitable” rule The ASMFC’s Striped Bass Board, without explanation, failed to adhere to the substantive requirement that fishery resources be fairly and equitably allocated or assigned among the states when it exempted (and thus reduced minimum size limits in) the Chesapeake and Albemarle Sound without exempting similar estuaries in the Delaware Bay and Hudson River.142 The Commission had previously determined that all four estuaries made significant contributions to the coastal stock as “producer areas.”143 However, under Amendment 6, only fishermen in Chesapeake and Albemarle waters may harvest smaller, more abundant fish in those nursery areas, while fishermen in similar Delaware Bay and Hudson River may not. The Striped Bass Board must remedy this violation of the “fair and equitable allocation” rule. The Striped Bass Board also violated the “fair and equitable allocation” rule by allowing Delaware Bay commercial fishermen to harvest twenty inch striped bass in Delaware Bay while limiting recreational fishermen in the same waters to a regulation equivalency of two-fish per individual at twenty-eight inches.144 This exemption only favored Delaware because New Jersey disallows any commercial harvest of striped bass. Thus, Delaware received the unfair benefit of smaller, more abundant fish, while recreational fishermen, mainly from New Jersey, were restricted to harvest of only larger fish. The “fair and equitable allocation” rule, if respected, should protect member states from the political influences that produce this type of unfair allocation. 2. Suggestions for correcting flaws in ASMFC decision making The ASMFC Policy Board disagreed with New Jersey’s arguments on all issues described above, and denied all requests 142. ASMFC Charter, supra note 27, § 6(a)(7)(ii). 143. Striped Bass Amendment 5, supra note 47, § 3. 144. Minutes, Feb. 24, 2003, supra note 130, at 10-15. The Delaware Bay commercial exemption for fish caught as bycatch in shad-gillnets was granted because a Delaware commissioner believed that the consequence of the change in regulations to fish larger than 20 inches “. . .would be a drastic change in Delaware’s commercial fishery.” Id. at 8-9. The Striped Bass Board was sympathetic, and allowed the exemption. Id. at 10-15.

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264 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 for relief.145 The new ASMFC appeals process will fail to increase the procedural and substantive soundness of management board decision-making and will fail to decrease political influence within Commission processes if the Commission fails to take appeals seriously. The appeals process should help maintain practical and pragmatic fishery management decision-making, minimizing the non-science based influences on commissioners. Two significant flaws will prevent an effective appeals process. First, many ASMFC commissioners are non-lawyers, and thus do not exercise legal judgment in an adjudicatory role, nor are they always cognizant of the implications of their decisions as precedent for the future of successful fisheries regulation. Second, Policy Board members are the same people who sit on a species’ Management Board and helped architect the very regulatory measures appealed by the aggrieved state. As a result, bias and prejudice likely influence the fate of an appeal. The ASMFC can address these flaws by adding an arbitration group to Commission staff. Arbitrators would be lawyers familiar with fisheries law and management, and would be called upon by the Commission when necessary to adjudicate appeals. Member states would consent to defer to the judgment of the arbitration group in appeal situations. The aggrieved state and the opposing species Management Board would perform their own fact finding and each present the arbitrators with a comprehensive appeal document and supporting materials. The arbitrators would then apply governing Commission rules from the ASMFC Compact, Rules and Regulations, or Charter to the facts, and decide the issues. Without such neutral adjudication, and without enforceable substantive and procedural rules, the member states cannot expect the decision-making process to be devoid of pressures not directly related to achieving successful fishery conservation. These measures will benefit the FMP development process. First, enhanced rule clarity will result, enabling commissioners deciding on FMPs at the species management board level to vote on motions in compliance with ASMFC guidelines. Second, an effective appeals process will keep contentious fishery

145. Interstate Fisheries Management Program Meeting Summary, Nov. 11, 2004, on file with the ASMFC, and with the Author.

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management issues, especially those regarding allocation, out of courts and in the hands of fishery managers where they belong. Fishery managers frequently struggle with litigation that delays the fishery management process, and an effective appeals process within the ASMFC would eliminate much of the need for parties to litigate management issues. V. CONGRESS SHOULD GRANT SIMILAR REGULATORY AUTHORITY TO GSMFC AND PSMFC

A. Evidence demonstrates the potential Commission effectiveness with regulatory authority The monumental restoration of the coastal striped bass population, as well as successful summer flounder fishery management, both demonstrate the ASMFC’s effectiveness with regulatory authority. The ASMFC also actively manages several other coastal species, including recent FMP development for the unglamorous spiny dogfish.146 In contrast, the powerless GSMFC failed to compel uniformity over its member states regarding coastal commercial gillnet regulations. This management scheme, unlike that involved with the ASMFC, will lead to inconsistent management of critical Gulf coastal fisheries. Also, the PSMFC fails to properly manage spiny dogfish in the Pacific because, even if the PSMFC developed a spiny dogfish FMP, it would not be binding on the Pacific States. Therefore, Congress should grant similar regulatory authority to the Gulf States Marine Fisheries Commission and the Pacific States Marine Fisheries Commission.147 The resulting uniformity in coastal fishery management regulations across the member states of each commission will effectively conserve and promote the utilization of the many migratory species residing in state waters along the coast. The GSMFC and PSMFC should both follow the general model created by the ASMFC for fisherymanagement development; both the GSMFC and PSMFC Compacts already mirror that of the ASMFC. However, the recently implemented ASMFC appeals process should be refined 146. 147. 241.

See supra text accompanying note 39. Ocean Commission Report, supra note 2, Recommendation 19-10 at

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266 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 before adopted by GSMFC and PSMFC;148 a meaningful appeals process will help to maintain the fishery management decisionmaking focus on sound science, preventing other influences from infiltrating the decision-making process and hindering effective fishery management along the coasts. B. Commission authority is insulated from state challenges that the FMP is “unfavorable” Whereas courts should be receptive to state claims alleging substantive and procedural violations of decision-making rules by Commission,149 courts should not be receptive to states claiming only that they “disfavor” a Commission-promulgated FMP. For example, in Connecticut v. Daley,150 Connecticut sued the Secretary of Commerce (Secretary) challenging the final decisions of the ASMFC and the Mid-Atlantic Fisheries Management Council not to implement a coastal quota system in Amendment 10 of the summer flounder FMP in 1997. Connecticut claimed that the resulting Amendment severely restricted summer flounder landings in Connecticut.151 The court noted that the decisions of the Secretary of Commerce to implement FMPs designed by the Regional Councils and the ASMFC should receive appropriate deference because Congress charges these entities with the responsibility of employing their expertise to make policy judgments and establish appropriate management measures based on evaluations of relevant scientific evidence.152 The court then proceeded to examine whether the actions of the Secretary in enforcing the FMP were arbitrary and capricious.153 148. See discussion supra Parts IV.C., IV.D.2. 149. New Jersey’s 2004 appeal presents examples of the types of substantive and procedural issues that, if unresolved, courts should be receptive to adjudicating. See discussion supra Part IV.D.1 150. 53 F. Supp. 2d 147, 159 (D. Conn. 1999). 151. Id. at 153, 159. 152. See id. at 157-58. The Secretary has broad discretion when using his expertise to promulgate regulations implementing FMPs, and courts generally may only consider “whether this discretion was exercised rationally and consistently with the standards set by Congress.” Id. at 157 (quoting Louisiana v. Baldridge, 538 F. Supp. 625, 628 (E.D. La. 1982)). 153. Daley, 53 F. Supp. 2d at 158 (seeking to determine whether the administrative record was so devoid of justification for these FMP measures that that the Secretary’s decision to implement them was “necessarily arbitrary and capricious”).

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While the Magnuson Act charges the Regional Councils with making policy judgments on fishery management in the EEZ, the Atlantic Coastal Fisheries Cooperative Management Act similarly charges the ASMFC with making policy judgments on fishery management in state waters to be implemented by the states and enforced by the Secretary. In sum, ASMFC decisions, through the Secretary, should receive deference by courts similar to that applied to decisions of the Regional Councils created under the Magnuson Act. In Daley, the court correctly deferred to the decisions of both the ASMFC and the Mid-Atlantic Fisheries Management Council to reject Connecticut’s proposed quota for summer flounder management, and determined that the Secretary’s decision to enforce these FMPs was not arbitrary or capricious.154 C. Lack of individual “standing” should further insulate Commission authority The United States District Court for the District of Rhode Island in Medeiros v. Atlantic States Marine Fisheries Commission155 recognized but was not required to decide the issue of whether the Tenth Amendment could invalidate the ASMFC’s coastal fishery-management scheme. In Medeiros, a plaintiff otter-trawl fisherman from Rhode Island challenged ASMFC lobster regulations limiting lobsters caught by non-trap methods.156 Amendment Three to the American Lobster FMP contained more relaxed regulations for fishermen using traps to catch lobsters and more stringent regulations for fishermen using non-trap methods, such as the plaintiff’s otter-trawl method.157 The Commission promulgated more stringent lobster regulations 154. Id. at 174 (the Secretary’s decision was adequately supported by the record). 155. 327 F. Supp. 2d 145 (D. R.I. 2004). 156. Id. at 148. 157. Id. at 147-48. In response to an over-fished lobster population, Amendment 3 restricted the trap-method of lobster fishing by increasing the minimum size limit for lobsters, reduced the number of traps fished per vessel, reduced maximum trap volume, and increased the size of escape vents. Id. at 150. However, Amendment 3 also limited non-trap fishermen to no more than 100 lobsters per day, and this rule became applicable coast wide once the ASMFC motioned for and voted on this regulation. Id. at 14748; see also discussion supra Part IV.A.1.a.

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268 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 for “non-trap” fishermen to limit fishing effort and protect the fishery from efforts of the non-trap sector where non-trap fishermen normally target other fish species.158 Rhode Island voted in favor of the FMP and adopted the new regulations in 2001.159 Plaintiff alleged that Amendment Three violated the Tenth Amendment because Congress “impermissibly” required the state to impose “federal regulations” within state waters.160 With regard to the Tenth Amendment claim, the court found the Supreme Court’s holding in Tennessee Elec. Power Co. v. Tennessee Valley Auth.161 controlling, where the Supreme Court held that private parties lacked standing to raise a Tenth Amendment claim without accompanying representation from the state.162 Thus, the plaintiff’s claim in Medeiros similarly failed.163 However, individual challenges of ASMFC regulations are unique because member states have an opportunity to vote in favor of or against proposed FMPs, and FMPs become binding even over states that actually voted against a particular FMP if a majority of member states approve the FMP.164 Previously, the Supreme Court declined to address the issue of whether a citizen had standing to challenge a federal measure imposed on the state after the state first approved the federal measure, and circuit courts are split on the issue.165 Circuit disagreement on whether standing exists when a state voted in favor of a federally-imposed regulation should signal even sharper disagreement on whether 158. Medeiros, 327 F. Supp. 2d at 150. 159. Id. at 147-48. 160. Id. 161. 306 U.S. 118 (1939). 162. Medeiros, 327 F. Supp. 2d at 148. 163. Id. at 154. 164. See discussion supra Parts IV.A.1.a., IV.A.1.b. States opposing an FMP are still required to implement the plan in their state if a majority of the voting states approve the FMP. 165. Medeiros, 327 F. Supp. 2d at 153 (“Recently, the Supreme Court granted certiorari with regard to, but ultimately declined to address the question of whether private plaintiffs have standing to assert states’ rights under the Tenth Amendment where the states’ legislative and executive branches expressly approve and accept the benefits and terms of the federal statute in question.” “The Court of Appeals for the First Circuit has not addressed whether private litigants may pursue Tenth Amendment claims. Other circuit courts which have considered the issue are in disagreement.” (citation omitted)).

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standing exists when a private citizen challenges a Commission FMP imposed on a member state that voted against the FMP. A decision on this issue will undoubtedly impact the scope of Commissions’ regulatory authority. Currently, the Tenth Circuit as well as United States District Courts in the Districts of Vermont, Rhode Island, and Louisiana all follow the Supreme Court’s directive in Tennessee Electric that individual claimants lack standing to challenge a federal regulation under the Tenth Amendment.166 These courts correctly preserve such challenges for the states because the political processes of the respective states should determine whether or not to challenge a federal regulation under the Tenth Amendment. While other courts choose to find private party litigant standing under similar circumstances,167 they base their holdings on faulty reasoning from prior Supreme Court cases taken out of context.168 Only the states themselves possess the requisite standing to raise a Tenth Amendment challenge against a federal regulatory scheme. However, states are not likely to challenge ASMFC regulatory authority under the Tenth Amendment because, according to the ASMFC Compact and Atlantic Coastal Fisheries Cooperative Management Act, states may still completely withdraw their consent to the ASMFC Compact if states fail to satisfactorily rectify their grievances against the Commission.169 166. See United States v. Parker, 362 F.3d 1279 (10th Cir. 2004); Mountain States Legal Found. v. Costle 630 F.2d 754 (10th Cir. 1980); Vt. Assembly of Home Health Agencies v. Shalala, 18 F. Supp. 2d 355 (D. Vt. 1998); Gaubert v. Denton, 1999 WL 350103 (E.D. La. 1999), aff’d, 210 F.3d 368 (5th Cir. 2000). 167. See Gillespie v. City of Indianapolis, 185 F.3d 693, 700 (7th Cir. 1999); Velazquez v. Legal Servs. Corp., 349 F. Supp. 2d 566 (E.D.N.Y. 2004) (holding that private party litigants only need to comply with the normal rules of standing, and are not precluded from doing so in the absence of the state or its officers). 168. For a much more elaborate discussion of these unique standing issues under ASMFC regulatory authority, see Joseph Farside, Fishery Resources Belong to Everyone: Why Courts Should Deny Standing to Private Party Claims that Coastal Fishery Regulations Violate the Tenth Amendment (2005) (unpublished paper on file with author). 169. Prior to deciding to withdraw from the Commission, states may utilize a new, internal ASMFC appeals process for aggrieved states, or states may attempt to sue the ASMFC under typical APA – type claims challenging possible abuses of discretion by the Commission. See discussion supra Parts IV.C, IV.D.

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270 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:231 Private party actions brought solely under the Tenth Amendment against unsatisfactory fishery management decisions promulgated by the ASMFC lack standing because private party options to completely invalidate ASMFC regulatory authority should be limited to utilization of the state’s political process to persuade state officials to seek redress against ASMFC action unfavorable to the state’s citizenry.170 Fishery resources are managed by the states for the good of the general constituency, not for the benefit of individuals. This lack of private-party litigant standing to challenge the Commission’s regulatory authority under the Tenth Amendment should help insulate the regulatory structure from litigation and other disruption from aggrieved individuals as fishery management decisions are developed for the future of the nation’s coastal fisheries. VI. CONCLUSION

While the Atlantic States Marine Fisheries Commission successfully manages fish species, commissioners must adhere more strictly to commission decision-making rules and regulations to prevent politics from causing fishery-management judgments to deviate from the solid foundation of sound science. Without a respected appeals process within each Commission, commissioners’ decisions and motivations regarding coast-wide fishery management may go unchecked. However, the demonstrated success of the ASMFC with regulatory authority, and the necessity of a coast-wide fishery management program on

170. Support for this proposition exists in a D.C. Circuit Court of Appeals case where the court held that plaintiffs’ Tenth Amendment claim failed because the certification regulations contemplated voluntary participation on the part of state and local officials, and the certification regulations did not command the states’ officers to administer or enforce a federal regulatory program. Lomont v. O’Neill, 285 F.3d 9, 13-15 (D.C. Cir. 2002) (the court decided against the private party plaintiffs on the merits, but without reaching the issue of private party litigant standing). Other support was derived from a Tenth Circuit case that found no Tenth Amendment violation of a federal regulation where the states were directed to negotiate in good faith with Indian tribes to form an interstate compact, but were not required to form an enforceable compact. Ponca Tribe v. Oklahoma, 37 F.3d 1422, 1432-34 (10th Cir. 1994).

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both the Gulf Coast and Pacific Coast should compel Congress to grant similar regulatory authority to the Gulf Coast and Pacific Coast Marine Fisheries Commissions.

Joseph A. Farside, Jr.*

* Juris Doctor Candidate, Roger Williams University School of Law; M.S., Rutgers University (Environmental Science); B.A., Franklin and Marshall College (Biology). Thanks first to my parents, Karen and Joe Sr. for their unconditional love and encouragement; and to my advisor, Professor Kristen Fletcher; Dr. William Goldfarb; N.J. Department of Environmental Protection Division of Fish and Wildlife; Professor Cecily Banks; and Seth Laver.

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Opening Ballot Access to Political Outsiders: How Third Parties Could Use Cook v. Gralike to Challenge the Dominance of America’s Two-Party System [T]he major parties have resisted a modification of the current two-party system with every means at their disposal. One of the most effective means of preserving their dominance of American politics is their control, via major party-dominated legislatures, over the electoral process. Under the Elections Clause of the United States Constitution, state legislatures are empowered to regulate the time, place and manner of elections held in their states. As an exercise of this power, every state in the nation restricts the candidates that may appear on its ballot.1 I. INTRODUCTION

The two major political parties in the United States are committed to their self-preservation and have the power to act on that commitment. Individuals who wish to form a new political party, or simply run for political office as independent candidates, face an entrenched two-party system that has erected numerous obstacles in their paths. Third party candidates perennially face prohibitive ballot access laws, passed by Democrats and Republicans, in various state legislatures across the nation.2 As a 1. Donald E. Daybell, Guarding the Treehouse: Are States “Qualified” to Restrict Ballot Access in Federal Elections?, 80 B.U. L. REV. 289, 291 (2000) (footnotes omitted). 2. David Cobb, Editorial, America Needs a Recount in Ohio, PROVIDENCE J., Nov. 29, 2004, at A12. David Cobb was the Green Party’s 2004

273

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274 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 result, despite voters’ decreasing affiliation and identification with the two major parties,3 those two parties have maintained their dominance of American elections into the twenty-first century. This Comment addresses how these obstacles affect federal elections against the backdrop of the Supreme Court’s interpretation of the Elections Clause of the U.S. Constitution. The Elections Clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”4 Since the Elections Clause refers to states’ powers to conduct federal – specifically congressional, senatorial and, to a lesser extent, presidential – elections, this Comment focuses on federal elections and the states’ regulations of federal elections. Historically, the Court has relied heavily on constitutional provisions other than the Elections Clause to assess the constitutionality of states’ regulations of federal elections.5 In the last decade, however, the Court has placed greater reliance on the Elections Clause, as U.S. Term Limits, Inc. v. Thornton6 and Cook v. Gralike7 illustrate. With these two decisions, the Court distinguished procedural regulations, which it found constitutionally permissible under the Elections Clause, and substantive regulations, which it found impermissibly outside the scope of the states’ powers under the Elections Clause. Thornton rejected the argument that the Elections Clause provided broad authority to the states to regulate elections.8 Instead, the Thornton Court stated that the Founding Fathers “intended the Elections Clause to grant states authority to create procedural regulations, not to provide States with license to exclude classes of candidates from federal office.”9 The regulation at issue in Thornton would have prevented incumbent United States Senators from Arkansas who had served two terms from presidential candidate. 3. Anis Shivani, Bleak Prospects for the Democrats: Conservative Politics in an Era of Dealignment, COUNTERPUNCH, Jan. 4, 2003, http://www.counterpunch.org/shivani01042003.html. 4. U.S. CONST. art. I, § 4, cl. 1. 5. See infra Part III. 6. 514 U.S. 779 (1995). 7. 531 U.S. 510 (2001). 8. 514 U.S. at 832. 9. Id. at 832-33 (emphasis added).

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being placed on the election ballot.10 Similarly, it would have prevented incumbent United States Congressmen who had served three terms from being placed on the election ballot.11 The Thornton Court relied on the arguments made by James Madison during the ratification debates, and by Alexander Hamilton in The Federalist Papers, to support the view of the Elections Clause as a narrow grant of power to the states.12 On one hand, the Thornton Court viewed the “times, places and manner”13 language of the Elections Clause as referring to “how. . .electors shall elect.”14 This language governs the procedures associated with conducting an election and the Thornton Court found such procedures within the purview of the states’ power.15 On the other hand, regulations that would “dictate electoral outcomes, to favor or disfavor a class of candidates, or. . .evade important constitutional restraints” were not permitted under the Elections Clause.16 These non-procedural regulations were substantive in nature, as the Thornton Court made clear in its distinction between procedural and substantive regulations: The provisions at issue in. . .our. . .Elections Clause cases were. . .constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position.17 Thus, forbidding incumbents from placing their names on the ballot was unconstitutional and imposed a “substantive” restriction because it disfavored a class of candidates – incumbents – and dictated the outcome of the election by removing that class of candidates from the ballot.18 Whether one agrees with the Thornton Court’s interpretation of the Elections Clause, it did create a clear and usable test for 10. 11. 12. 13. 371). 14. 15. 16. 17. 18.

Id. at 783, 784. Id. Id. at 833-34. Id. at 833 (emphasis in original) (citing THE FEDERALIST NO. 60 at Id. Id. at 834. Id. at 833-34. Id. at 835. Id.

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276 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 analyzing election regulations. Under Thornton, a regulation that governs how an election is to be conducted would be categorized as procedural and therefore constitutional.19 A regulation that prevents a certain group of candidates from getting on the ballot would be categorized as substantive and therefore What mattered in Thornton was that unconstitutional.20 incumbents were disqualified outright, regardless of whether they had met all applicable procedural regulations to get on the ballot.21 The distinction between impermissible substantive exclusions and allowable procedural regulations changed in Cook.22 In Cook, the Court found a Missouri initiative requiring the instruction, “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS,” be placed next to the name of Missouri’s incumbent congressmen who did not oppose term limits and the instruction, “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS,” be placed next to the name of non-incumbent candidates for Congress who refused to support term limits, unconstitutional.23 Instead of focusing on how the regulation at issue dictated electoral outcomes, as had the Court in Thornton, the Cook Court focused on how the regulation placed its “targets at a political disadvantage” and found the regulation unconstitutional for attempting to dictate electoral outcomes.24 With this language, the Cook Court broadened Thornton’s definition of substantive regulations, thus opening the door for challenges to election regulations by third parties and independent candidates. Third parties and independent candidates can now seize this opportunity to challenge the constitutionality of long-accepted election regulations. This new definition of “substantive” may give the judiciary more authority to strike down election regulations once viewed as constitutional and categorized by the Thornton Court as procedural and somewhat benign. By seizing this opportunity, new parties and independent candidates could alter the political landscape by making access to the ballot easier for individuals and groups 19. 20. 21. 22. 23. 24.

Id. Id. Id. Cook, 531 U.S. at 525-26. Id. at 514-15, 523-24. Id. at 525-26.

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outside of the dominant two-party structure. By using the substantive/procedural distinction in Cook, courts may be able to re-categorize some seemingly neutral regulations, previously categorized as procedural, as substantive regulations that influence electoral outcomes and place certain candidates at a political disadvantage. In doing so, these courts could remove some of the obstacles faced by political outsiders in modern-day U.S. elections. This Comment opens with a discussion of the obstacles to candidates outside the traditional two-party system. Part II addresses those obstacles, as well as the difficulties political outsiders face, by describing the entrenchment of the two-party system, especially its unresponsiveness to new issues. Part III discusses how the Court’s treatment of federal election regulations has touched on many parts of the Constitution: the First Amendment, the Equal Protection Clause, Substantive Due Process, the Qualifications Clause and the Elections Clause.25 Part IV discusses Thornton’s attempt to sort out some of the Court’s past election regulation jurisprudence by placing greater emphasis on the Elections Clause than past courts and articulating the distinction between substantive and procedural election regulations. Part V discusses how the Court expanded the definition of substantive regulations in Cook v. Gralike26 and explains how this new definition has opened the door to legal challenges from third parties and independent candidates. Part V explores how the judiciary could embrace the new and broader definition of substantive regulations in Cook and use that new definition to recognize that some existing regulations traditionally thought to be procedural (and constitutional) are more properly viewed as substantive (and therefore unconstitutional) regulations. This approach would fundamentally alter how federal elections are conducted because many existing election regulations could be categorized as substantive. To illustrate this point, this Comment addresses several widely accepted regulations and discusses how they may violate the broader Cook definition of substantive regulations. Finally, this Comment concludes by showing how the Court 25. 26.

See infra Part III. Cook, 531 U.S. at 525-26.

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278 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 could use the Cook definition of substantive election regulations to open up ballot access to third (and perhaps fourth and fifth) parties as well as independent candidates, many of whom have struggled to gain access to the ballot in the past. By using this broader definition of substantive qualifications, the Court could help break up the dominance of the two-party system, open up the electoral system to disparate groups and individuals who challenge the status quo and enhance the spirit of democracy. II. THE TWO-PARTY STRANGLEHOLD

The Founding Fathers expressed major concerns over the divisiveness of factions in the new republic.27 In The Federalist Papers, James Madison defined a “faction” as a “number of citizens. . .united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”28 Such factions existed at the time of the nation’s founding and exist today, in the form of interest groups, lobbyists and political action committees. The existence of these modern factions would not be a surprise to the Founding Fathers because they saw factions as inevitable.29 They simply devised tools to control such factions.30 Chief among these tools is the concept of representative, as opposed to pure, democracy.31 According to this concept, citizens elect individuals to represent their interests and those representatives become responsible for discerning the country’s In a representative democracy, federal “true interest.”32 officeholders are responsible for controlling factions.33 In their roles as elected representatives, they come together and work out the differences between various local interests by creating policies

27. See, e.g., THE FEDERALIST NO. 10, at 150 (James Madison), in THE AMERICAN CONSTITUTION: FOR AND AGAINST (J.R. Pole ed., 1987) (“Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.”). 28. Id. at 151. 29. Id. (“The. . .causes of faction are. . .sown in the nature of man.”). 30. Id. at 154. 31. Id. 32. Id. 33. Id.

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that strengthen the national interest.34 Other mechanisms created by the Founding Fathers also contribute to controlling factions. These mechanisms include federalism and the separation of powers, both of which Madison described as necessary to control factions and protect the citizenry: In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.35 The “two distinct governments” are the federal and state governments, a vertical separation of power crucial to Madison’s concept of federalism.36 The “distinct and separate departments” are the legislative, executive and judicial branches – horizontal separations that exist at both the federal and state level.37 These three distinct power bases prevent any single “department” or individual from gaining too much power. Together, these tools also prevent any single faction from gaining too much power because that faction would need to gain control over all those governmental layers to dominate the nation’s political agenda. In addition to these tools, another has emerged: the two-party system. While the Founding Fathers did not create the two-party system, it has played a significant role in controlling factions because it channels political conflict through two distinct pillars – the Democrats and the Republicans.38 These two major parties have been firmly in place since the Civil War and, despite several challenges to their dominance,39 they remain the nation’s two 34. 35.

Id. THE FEDERALIST NO. 51, at 236 (James Madison), in THE AMERICAN CONSTITUTION: FOR AND AGAINST (J.R. Pole ed., 1987). 36. Johnson v. Cavell, 468 F.2d 304, 322 (3d Cir. 1972). 37. Id. 38. JAMES L. SUNDQUIST, DYNAMICS OF THE PARTY SYSTEM: ALIGNMENT AND REALIGNMENT OF POLITICAL PARTIES IN THE UNITED STATES 48 (Rev. Ed. Brookings 1983). 39. Since the emergence of the Republican Party during the Civil War,

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280 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 major political parties. In presidential elections since the Civil War, serious third party challengers have failed to form movements or parties with any significant staying power.40 The U.S. Senate currently contains only one independent – Vermont’s Jim Jeffords – and he ran as a Republican before defecting from the party after winning his re-election.41 The U.S. House of Representatives likewise has only one independent member, Vermont’s Bernard Sanders.42 While the formation of a new national party does not necessarily depend on the presence of minor party representatives in Congress, the relative absence of such individuals certainly does not bode well for the formation of a new party in the near future. Throughout American history, the two-party system has often forced different factions or interest groups to focus their energy on influencing the agendas of either one or both of the major parties. These factions often work within the two-party system to force change. The 1896 presidential candidacy of William Jennings Bryan is illustrative.43 His Populist takeover of the Democratic party that year came after he had embarked on a series of lecture tours throughout the country denouncing the administration of

the strongest showing by a third-party presidential candidate came in 1912, when former president Theodore Roosevelt ran under the Bull Moose Party label and finished second in both the popular vote and the Electoral College (Woodrow Wilson won the 1912 election). T. HARRY WILLIAMS ET. AL, A HISTORY OF THE UNITED STATES (SINCE 1865) 337 (Alfred A. Knopf, 1964). H. Ross Perot’s 1992 presidential candidacy, in which he finished third, garnered nineteen percent of the popular vote and received zero Electoral College votes, represents the second-strongest showing by a third-party presidential candidate. See PresidentElect.org, http://presidentelect.org/e1992.html. 40. Theodore Roosevelt’s Bull Moose Party presidential candidacy in 1912 illustrates this point. A committed progressive, he left the Republican Party and ran on the Bull Moose ticket in 1912. SUNDQUIST, supra note 38, at 177-80. However, his Bull Moose party had no staying power because it “was a personal party, a party permeated with intense moral flavor.” See V.O. KEY, JR., POLITICS, PARTIES & PRESSURE GROUPS 179 (5th ed. 1964). Roosevelt’s supporters “were no committed ideological bloc whose political course was dictated by what was necessary to advance a program; they merely followed a leader where he led.” SUNDQUIST, supra note 38 at 180. 41. John Lancaster and Helen Dewar, Jeffords Tips Senate Power, THE WASHINGTON POST, May 25, 2001, at A1. 42. Bernard Sanders, http://www.worldhistory.com/wiki/B/BernardSanders.htm. 43. See, e.g., SUNDQUIST, supra note 38, at 149-54.

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President Grover Cleveland and advocating for free silver.44 At other times, the major parties absorb new ideas. During the Progressive Era of the early twentieth century, the major parties both made efforts to absorb the Progressives’ ideas and agenda, thus blunting the Progressives’ ability to form a new party.45 As a result of this two-party hegemony, one of the two major parties is almost always sure to attain a legislative majority, whether at the state or the federal level. This dominance is evident throughout U.S. history and the failure of any third party to coexist for a significant period of time with the two major parties demonstrates that dominance.46 Despite its endurance and stability, the two-party system has its flaws. It can encourage polarization, rather than consensus and compromise. Two former U.S. Senators saw this polarization emerging a decade ago when they bemoaned the “vanishing bipartisan center in Congress.”47 Sam Nunn, a Georgia Democrat, described the voices of common sense in Washington as being “drowned out by the extremes in both parties, who are usually wrong but never in doubt.”48 Bill Cohen, a Maine Republican, similarly lamented his increased marginalization within his own party, seeing a “limit to what. . .[he] could achieve” as a moderate in an increasingly conservative GOP.49 A second and perhaps more significant flaw of the two-party system is the major parties’ unresponsiveness to new issues. They often ignore such issues until they almost rupture the political system, or even the nation.50 As former Chief Justice Warren

44. Id. at 150-154. 45. Id. at 170. 46. See FRANK J. SORAUF, PARTY POLITICS IN AMERICA 37 (2d ed., Little, Brown and Company 1972). 47. Eric Schmitt, Even G.O.P. Asking Nunn Not to Retire from Senate, N.Y. TIMES, Oct. 2, 1995, at A10. 48. Kevin Sack, Nunn, Model Southern Democrat, to Retire from Senate Next Year, N.Y. TIMES, Oct. 10, 1995, at A1. 49. Francis X. Clines, Senator Cohen, G.O.P. Centrist, Plans to Retire, N.Y. TIMES, Jan. 17, 1996, at A1. 50. In the pre-Civil War political system, the Whig and Democratic Parties ignored the slavery issue for so long that it ruptured not only the political system, but the nation. After both the Whigs and Democrats failed to incorporate the abolitionist or anti-slavery ideas of the Liberty and Free Soil Parties, the Republican Party was created as a vehicle for the antislavery movement voice. The creation of the Republican Party forced the

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282 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 noted: History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. . . .The absence of such voices would be a symptom of grave illness in our society.51 Throughout the nation’s history, third parties and independent candidates have often been responsible for major reforms, ranging from abolition to Progressive Era legislation.52 A more recent example is H. Ross Perot’s 1992 third-party presidential candidacy, which focused attention on issues such as the national deficit that had received relatively little attention from the major parties.53 Political forces and figures, like Perot, who are historically “outside the two major parties have [often] been fertile sources of new ideas and new programs. . .[and] many of their challenges to the status quo have in time made their way into the political mainstream.”54 Perot, the Progressives, the abolitionists and other political “outsiders” illustrate how, in American political life, “third parties are often important channels through which political dissent is aired.”55 Unfortunately, the current electoral system does not protect Whig Party into extinction. This example demonstrates the extent to which the major parties resist new ideas. In the case of the Whigs and the Democrats, their reluctance to incorporate new ideas into their parties may have helped lead to the Civil War. See SUNDQUIST, supra note 38, at 76-79. 51. Sweezy v. State of New Hampshire, 354 U.S. 234, 251 (1957). 52. In response to the growing abolitionist movement in the 1840s and 1850s, the “major party politicians in the North moved as far toward the abolitionist pole as necessary to absorb most of the movement, to the frustration of third-party politicians.” SUNDQUIST, supra note 38, at 58. The Progressive movement is often credited with enacting major reforms of the early twentieth century, including the Clayton Act (which exempted labor from antitrust laws), the Abramson Act (which mandated an eight-hour work week for railroad workers), the Federal Farm Loan Act (which created banks to make long-term loans at low interest rates), the creation of the Federal Reserve System and the prohibition of child labor. KEY, supra note 40, at 181. 53. Joe Klein, Stalking the Radical Middle, NEWSWEEK, Sep. 25, 1995, at 36. 54. Anderson v. Celebrezze, 460 U.S. 780, 794 (1983) (citing Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 186 (1979)). 55. Williams v. Rhodes, 393 U.S. 23, 39 (1968) (Douglas, J., concurring).

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these “important channels.” Instead, the two-party system “unquestionably favors Democrats and Republicans at the expense of minor parties and independents, simply because the Democrats and Republicans came into existence first and were. . .the ones These rules include ballot access who wrote the rules.”56 restrictions and other election regulations, created mostly by state legislatures dominated by the two major parties.57 These election regulations represent the products of a system designed to perpetuate itself. While the Court has “squarely held that protecting the Republican and Democratic Parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena,”58 it sometimes has contributed – whether wittingly or unwittingly – to that very exclusion.59 Many Americans are also increasingly skeptical of the major parties, as their support for a viable third party demonstrates.60 In the mid-1990s, advocates for congressional term limits attempted to break up this two-party stranglehold by trying to reduce the number of terms a Congressman or Senator could serve in Washington.61 These advocates ran into a brick wall when the Supreme Court, in a 5-4 decision, ruled that individual states could not impose term limits on federal officeholders.62 However, the concerns brought up by term limits advocates and other outsiders to the two-party system have not disappeared. Voters and candidates who neither agree with nor identify with either of the major parties continue their struggle.63

56. Daybell, supra note 1, at 326. 57. See generally id. 58. Anderson, 460 U.S. at 802. 59. Daybell, supra note 1, at 325-26. 60. Kevin Cofsky, Pruning the Political Thicket: The Case for Strict Scrutiny of State Ballot Access Restrictions, 145 U. PA. L. REV. 353, 420 (1996). 61. See Gloria Borger, Welcome to Gingrich Nation, U.S. NEWS & WORLD REPORT, Nov. 21, 1994, at 45. 62. Thornton, 514 U.S. at 838. 63. See, e.g., Cook v. Gralike, 531 U.S. 510 (2001). While the State of Missouri was not directly advocating for term limits, it was trying to force its representatives in Congress to advocate for term limits with the ballot labels its voters had approved.

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284 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 III. THE MUDDLED HISTORY OF ELECTION REGULATIONS JURISPRUDENCE BEFORE THORNTON

Prior to Thornton’s distinction between substantive and procedural election regulations, the Court did not use a consistent approach to analyze federal election regulations.64 Before the 1980s, the court’s jurisprudence in the area of election regulations could be described as a grab-bag of constitutional catchphrases,65 ranging from Due Process and Equal Protection to Free Speech and Free Association.66 For example, in Anderson v. Martin, the Court found a Louisiana statute requiring the designation of a candidate’s race on the ballot as an Equal Protection violation.67 At other times – often within the same cases – the court emphasized the right to vote.68 Within these cases, other justices cited even more options for analyzing election regulations.69 These various rationales – free association, Equal Protection, the right to vote and Due Process – demonstrate the lack of a cohesive approach to analyzing the constitutionality of election regulations during the 1960s and 1970s. In the early 1980s, the court attempted to merge some of these approaches in Anderson v. Celebrezze.70 In Anderson, the Court created a balancing test, weighing the First Amendment (freedom of association) and Fourteenth Amendment (Equal 64. Cofsky, supra note 60, at 420. 65. Id. 66. See Williams v. Rhodes, 393 U.S. 23, 30-31 (1968) (finding Ohio’s election code violated the First Amendment right of free association and the Fourteenth Amendment’s Equal Protection Clause); see also Bullock v. Carter, 405 U.S. 134, 140-41 (1972); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). 67. 375 U.S. 399 (1964). The regulation at issue involved a regulation of a state election, but the rationale to strike down the attachment of a candidate’s race next to his name on the ballot as unconstitutional would apply equally to a regulation of a state or federal election. 68. See Williams, 393 U.S. at 30 (citing the “right of qualified voters. . .to cast their votes effectively”); see also Bullock, 405 U.S. at 144 (discussing a filing fee scheme’s “real and appreciable impact on the exercise of the franchise”). 69. See Williams, 393 U.S. at 41 (Harlan, J., concurring) (“I would rest this decision entirely on the proposition that Ohio’s statutory scheme violates the basic right of political association. . .which is protected against state infringement under the Due Process Clause of the Fourteenth Amendment”) (citing NAACP v. Button, 371 U.S. 415 (1964) (emphasis added)). 70. 460 U.S. 780, 789 (1983).

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Protection) against the states’ interests in regulating elections: [A court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.71 In Anderson, the Court stated that an election contest is not a static event.72 Rather, an election is fluid where new and emerging issues “create [potential] opportunities for new candidacies.”73 In Anderson, the Court specifically found that the state’s interests in voter education, political stability and equal treatment for major party and independent candidates were insufficient to justify a March filing deadline for independent and third party candidates in the presidential election, which took place eight months later, in November.74 The Court ruled that such regulations unfairly burdened the independent candidate’s political opportunity.75 Under this rationale, states need to be mindful of ensuring that potential candidates have the opportunity to give voice to new issues. The 2004 presidential election provides a modern-day example. While neither major party candidate took a strong stance against American involvement in Iraq, Howard Dean’s candidacy, as well as numerous opinion polls, demonstrated that a sizeable portion of voters were against American involvement there.76 However, Ralph Nader’s struggles to gain the necessary 71. Anderson, 460 U.S. at 789. 72. Id. at 790. 73. Id. 74. Id. at 796, 800. 75. Id. at 805-06. 76. Exit polls on Election Day 2004 indicated that forty-five percent of those polled disapproved of the decision to go to war with Iraq and that fortysix percent believed that the war with Iraq has improved the United States’

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286 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 signatures to get on all fifty states’ ballots77 illustrated how the two-party system hampered his political opportunity to express this alternative point of view. IV. THE BIRTH OF THE PROCEDURAL/SUBSTANTIVE DISTINCTION UNDER THE ELECTIONS CLAUSE

The Anderson test drew heavily from the election regulation cases that preceded it, because it focused primarily on the First Amendment and the Equal Protection Clause to assess the constitutionality of those regulations.78 However, over a decade later with Thornton, the Court made a clear shift in its jurisprudence by relying on the Elections Clause to strike down term limits imposed by Arkansas voters on congressional The Elections Clause representatives and U.S. Senators.79 provides that the “Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”80 The Court described the Elections Clause as a grant of “broad power” to the states to prescribe procedural regulations for holding elections for federal offices.81 In Cook, the Court relied on a seventy-year-old definition of procedural regulations as “safeguards which experience shows are necessary in order to enforce the fundamental right [to vote].”82 Such safeguards are justified by the practical need to ensure that elections are fair and honest and accompanied by order rather than chaos.83 These concerns demonstrate how the court has given states a certain measure of discretion to ensure that federal elections run fairly and in a manner that minimizes confusion to long-term security. See Katharine Q. Seelye, Moral Values Cited as a Defining Issue of the Election, N.Y. TIMES, Nov. 4, 2004, at P4. 77. Kate Zernike, Nader Ballot Petitions Present a Phone Book Full of Problems, N.Y. TIMES, Oct. 8, 2004, at A21. Nader’s attorneys also attempted to use this argument to strike down signature requirements in Illinois, arguing that independent candidacies often develop in response to national events that come to the fore during the campaign season. See Nader v. Keith, No. 04 C 4913, 2004 WL 1880011, at *2 (N.D. Ill. Aug. 23, 2004). 78. Anderson, 460 U.S. at 783. 79. Thornton, 514 U.S. at 832-38. 80. U.S. CONST. art I, § 4. 81. Cook, 531 U.S. at 523 (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986)). 82. Id. at 524 (citing Smiley v. Holm, 285 U.S. 355, 366 (1932)). 83. Storer v. Brown, 415 U.S. 724, 730 (1974).

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voters. That discretion has its limits. While the Court recognizes that procedural regulations for conducting elections are within the purview of the states’ constitutional powers, it has simultaneously carved out a category of substantive regulations that states are forbidden to impose on federal elections: “. . .the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”84 In short, if a state’s proposed regulation would decide the outcome of federal elections, then it should not pass constitutional muster.85 A. Defining Procedural Regulations Procedural regulations are constitutional because they govern how an election is conducted. At the procedural end of the spectrum, the Court has described allowable state regulations as “notices, registration, supervision of voting. . . counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”86 The Court has described such regulations as neutral, “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.”87 In Thornton, the Court reviewed its prior election regulation cases and explained that the provisions at issue in those cases were constitutional “because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position.”88 Several cases, which Thornton cited, provide examples of procedural regulations that the Court has found constitutional. In Storer v. Brown, the Court upheld the following provisions of the California Election Code: (1) denial of ballot access to an independent candidate who registered his affiliation with a qualified political party within one year prior to the preceding 84. Cook, 531 U.S. at 523 (citing Thornton, 514 U.S. at 833-34 (emphasis added)). 85. Thornton, 514 U.S. at 830-31. 86. Cook, 531 U.S. at 523-24. 87. Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983). 88. Thornton, 514 U.S. at 835.

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288 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 primary election (known as a non-partisan requirement for independent candidates), (2) a requirement that all such signatures be obtained during a twenty four-day-period following the primary election (known as a time limit for signaturegathering) and (3) a corresponding requirement that none of the signatures be those of voters who voted in the primary (known as a guarantee of demonstrated support).89 The Court upheld these restrictions because the state has an “interest. . .to protect the integrity of its political processes from frivolous or fraudulent candidacies” and to prevent intra-party feuding from spilling into general election contests.90 Similarly, in Jenness v. Forston, the court upheld the following provisions of the Georgia Election Code: (1) a requirement that a political party obtain twenty-percent of the vote in the most recent gubernatorial or presidential election to gain a place on the ballot in the subsequent election (known as automatic ballot access for the major parties), (2) a requirement that non-party candidates receive the signatures of five percent of the voters eligible to vote in the last election to gain ballot access (known as signature requirements) and (3) a time limit requirement for signature-gathering (180 days).91 The Thornton Court suggested that these regulations would be categorized as permissible “procedural” regulations.92 B. Defining Substantive Regulations Defining substantive election regulation is elusive. In Thornton, the Court helped crystallize the procedural/substantive distinction when it struck down an amendment to the Arkansas Constitution that would have made it unlawful for incumbent Congressmen and Senators to have their names placed on the ballot.93 Decided in the mid-1990’s, Thornton represented a landmark decision that sounded the death knell for states’ ability to impose term limits on federal officeholders.94 Term limits had 89. Storer, 415 U.S. at 726-27. 90. Id. at 733, 735. 91. Jenness v. Forston, 403 U.S. 431, 439-40 (1971). See also American Party of Texas v. White, 415 U.S. 767, 772-74 (1974). 92. Thornton, 514 U.S. at 834-35. 93. The Arkansas regulation, which was the result of a statewide voter initiative, would have restricted an individual Senator to two six-year terms and an individual Congressman to three two-year terms. Id. at 784. 94. Terence M. Fitzpatrick, The Speech or Debate Clause: Has the Eighth

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been a major element of the Republican Party’s platform during its sweeping electoral victories in the 1994 midterm elections.95 Despite strong public support for term limits, however, the Court struck them down.96 It stated that the Arkansas regulation did not fall within the scope of the state’s power under the Elections Clause because the clause did not provide states “with license to exclude classes of candidates from federal office.”97 Thus, the Court made a clear statement that patent exclusion of certain candidates from the ballot could never be interpreted as a procedural regulation. Rather, it represented a substantive regulation designed to dictate the outcome of the election. The Thornton Court did not, however, ground its entire analysis in the Elections Clause. It placed perhaps even greater emphasis on how the regulation violated the Constitution’s Qualifications Clauses and on how the regulation disrupted the somewhat delicate constitutional balance between federal and state power.98 The Court stated that the “Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the nation.”99 States accordingly did not have the power to add to, or delete from, those qualifications. Permeating the Thornton Court’s discussion of the Qualifications Clauses were the premises that universal qualifications for federal officeholders are a necessary element of the constitutional framework and that allowing states to change those qualifications would “erode the structure envisioned by the Framers.”100 While these sentiments

Circuit Gone Too Far?, 68 UMKC L. REV. 771, 772 (2000). 95. Id. at 771. 96. Id. at 772. 97. Thornton, 514 U.S. at 832-33. 98. See generally id. 99. Id. at 837. 100. Id. at 838. While this Comment does not focus on the Qualifications Clause, it is necessary to mention its important role in the development of the court’s jurisprudence in the area of state control of federal elections. Many of the same concerns and arguments over federalism and the proper balance between state and federal power that have influenced the court’s interpretation of the Qualifications Clauses have also influenced its interpretation of the Elections Clause. The two clauses can be discussed separately, but some overlap occurs in the case law and in commentators’ critiques. See Daybell, supra note 1, at 316, 317. Much of the reasoning used to strike down or uphold a particular ballot access requirement could be used

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290 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 also underlie the Court’s Elections Clause analysis in Thornton, further discussion of the procedural/substantive distinction came six years later in Cook. V. COOK’S BROADENED DEFINITION OF SUBSTANTIVE REGULATIONS

In Cook, the Court moved the boundary between substantive and procedural regulations when it struck down a Missouri initiative that (1) instructed each member of Missouri’s congressional delegation to vote to pass a Congressional Term Limits Amendment to the U.S. Constitution, (2) required that the statement “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” be printed next to the name of Missouri’s incumbent congressmen who did not follow the voters’ instructions and (3) required the statement “DECLINED TO PLEDGE TO SUPPORT LIMITS” be printed next to the name of non-incumbents who refused to take a pledge to vote for a Congressional Term Limits Amendment.101 The lower courts both had relied on Thornton to find the Missouri initiative unconstitutional.102 In fact, the Supreme Court clearly stated that “although the Court of Appeals’ decision is consistent with the views of other courts that have passed on similar voter initiatives, the importance of the case prompted our grant of certiorari.”103 The Court could easily have allowed the lower court decisions to settle the matter, but appeared to have other reasons for granting certiorari on an issue of “importance.”104 In taking the case, the Court broadened its definition of substantive election regulations, but supported its new definition with reasoning that could be used to subsume many existing procedural regulations within the substantive category. Thornton had stated that it was impermissible for a state to to support the court’s interpretation of either Clause. 101. Cook, 531 U.S. at 514-15. 102. See Gralike v. Cook, 996 F. Supp. 917, 920 (W.D. Mo. 1998) (describing the Missouri ballot label as having the “likely effect of handicapping a class of candidates for Congress”); see also Gralike v. Cook, 191 F.3d 911, 924 (8th Cir. 1999) (describing the Missouri ballot label as seeking to “impose an additional qualification for candidacy in Congress and. . .[doing] so in a manner which is likely to handicap term limit opponents.”). 103. Cook, 531 U.S. at 518. 104. Id.

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deny ballot access to an incumbent congressional candidate because it absolutely excluded a class of candidates from consideration and thus dictated “electoral outcomes.”105 The Thornton decision had defined substantive regulations as those that dictated electoral outcomes by excluding a class of candidates from the ballot – and therefore excluding those candidates from the election – versus a procedural regulation that governed the time, place and manner of casting ballots.106 Under Thornton, a procedural regulation may exclude a candidate from the ballot, but a substantive regulation will always do so. Thus, even if one of Arkansas’ incumbent congressmen or Senators followed every procedural regulation imaginable, no matter how burdensome, to get on the ballot, the problem with the Arkansas term limit regulation was that it excluded the candidate from the ballot anyway. Such exclusion of particular candidates’ (namely incumbent congressmen’s) names from the ballot would dictate the electoral outcome because voters would never get the opportunity to vote for incumbents after they had served a designated number of terms. The Thornton Court found that dictating electoral outcomes in this way was unconstitutional.107 Unlike the incumbent congressmen in Thornton, the candidates opposed to term limits in Cook were not being excluded from the ballot. However, Cook applied a broader version of the Thornton dictation-of-electoral-outcomes test to the labels Missouri wished to place next to candidates’ names: “While the precise damage the labels may exact on candidates is disputed between the parties, the labels surely place their targets at a political disadvantage to unmarked candidates for congressional Such labels were substantive, not procedural, office.”108 regulations and thus violated the Elections Clause.109 The labels, which the courts below had described as “pejorative,” “negative,” “derogatory,” “intimidating” and akin to a “Scarlet Letter,” were struck down because they “handicap candidates ‘at the most crucial stage in the election process – the instant before the vote is

105. 106. 107. 108. 109.

Thornton, 514 U.S. at 833. Id. at 833-34. Id. at 838. Cook, 531 U.S. at 525 (emphasis added). Id. at 526.

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292 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 cast.’”110 This expansion of the Thornton test for substantive regulations rests on the principle that states cannot influence election outcomes or exert pressure on voters by drawing issue distinctions between the candidates inside the ballot box.111 VI. HOW PROCEDURAL REGULATIONS BECOME SUBSTANTIVE UNDER THE COOK REASONING

At first glance, Cook may appear to be a logical application of Thornton’s distinction between substantive and procedural election regulations. The Court in Cook reasoned that “pejorative” issue labels did not pass constitutional muster because of (1) the influence such labels will have on some voters and (2) the fact that such labels will ultimately and unfairly influence the electoral outcome.112 The problem with this reasoning is that influencing an electoral outcome is quite different than dictating an electoral outcome. Clearly the exclusion of certain candidates dictates an electoral outcome – it restricts voters’ choices by removing certain candidates’ (such as incumbents’) names from the ballot. Such was the situation in Thornton. Once term limits were imposed, even if an incumbent candidate met all signature requirements mandated by a particular state and petitioned for ballot access well in advance of any state-imposed deadlines, that candidate would still not get a place on the ballot. The state’s election regulation dictated an electoral outcome because it had created an absolute bar to the presence of a candidate’s name on the ballot. By contrast, attaching a statement regarding an issue position next to a candidate’s name falls short of dictating an electoral outcome. Such was the situation in Cook. Attaching a statement regarding an issue position next to a candidate’s name may dictate the outcome by calling attention to an issue many, or even most, voters care about, but it does not necessarily do so. Thus, while Thornton’s dictating-electoral-outcomes test addressed situations where a class of candidates was denied ballot access, Cook asked courts to examine whether a state law would “handicap” a 110. Id. (citing Anderson v. Martin, 375 U.S. 399, 402 (1964) (emphasis added)). 111. Robert Alexander Schwartz, The Nature of Consent in the American Republic: Substance or Procedure? The Elections Clause and the SingleMember Congressional Districts, 38 U.S.F. L. REV. 467, 476 (2004). 112. Cook, 531 U.S. at 525-26.

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candidate or put a candidate at a “political disadvantage.”113 Handicapping a candidate is less burdensome than excluding a candidate from the ballot altogether. After Cook, many so-called procedural (and constitutionally permissible) regulations under Thornton could now fall into the category of substantive regulations because they do what Cook prohibits. These regulations, while perhaps appearing “evenhanded,” often influence election results by handicapping certain candidates, namely third party and independent candidates, and also place such candidates at a political disadvantage. They do so by forcing these candidates to overcome obstacles to gaining ballot access and getting elected which major parties and major party candidates simply do not face. The following non-exhaustive list of examples demonstrates how some so-called procedural election regulations are arguably invalid under the Cook test because they handicap certain candidates and place them at a political disadvantage: (1) signature requirements for non-major party candidates to gain access to the ballot, (2) automatic ballot access for established parties and (3) the listing of party affiliations on ballots. Each of these regulations could be re-categorized as substantive under Cook. A. Signature Requirements Every state imposes some form of ballot-access signature requirements on all candidates for offices, regardless of their party affiliation.114 These signature requirements do not explicitly exclude a class of non-major party candidates from the ballot. However, they do create significant obstacles for non-major party candidates to get on the ballot. Across the nation, the number of signatures for major party candidates is almost always lower than the number required for minor party and independent candidates.115 In addition, the lack of major party resources presents further difficulties for aspiring non-major party candidates: There are two ways that candidates can gather the 113. 114. 115.

Id. at 525. Daybell, supra note 1, at 294. Id. at 294-95.

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294 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 signatures necessary to fulfill the ballot access signature requirements. First, a candidate can hire a company to collect the necessary signatures. . . .The other alternative requires a candidate to mobilize a large force of volunteer campaign workers to canvass the streets seeking petition signers. . . .Unlike a major party candidate, a minor party candidate will not have the party-supplied support staff of volunteers to man the telephones, run the field offices, or conduct get-out-the-vote campaigns. In either case, the minor party candidate must expend substantial resources that the major party candidate can devote to other aspects of his or her campaign.116 Under Cook, these signature requirements could be categorized as substantive because they handicap non-major party candidates and place them at a political disadvantage. They also do not apply equally to the major parties vis-à-vis independent candidates. They force independent candidates to spend more time and resources than major party candidates to achieve the same goal: access to the ballot. In essence, “the[se] signature requirements have effectively created an uneven playing field” between major party candidates and non-major party candidates.117 B. Automatic Ballot Access for the Major Parties Similarly, after Cook, automatic ballot access for “established” political parties may no longer fall into the procedural category. Many states reserve a place on the ballot for the Democratic and Republican parties and their candidates because of the strong support they have received in previous elections.118 Ralph Nader, aware of this obstacle in 2000, made it part of his platform to obtain five percent (5%) of the vote nationwide, a figure which would have guaranteed his party a position on every state ballot in 2004.119 He failed in that task, garnering just under three 116. 117. 118.

Id. at 297. Id. at 299. Richard Winger, Ballot Access for Minor Candidates, in MINOR PRESIDENTIAL CANDIDATES AND PARTIES OF 1992: A REFERENCE 5-8 (Glenn Day ed., 1992). 119. Patrick Barrett, The Presidential Race and Green Party Strategy in 2004, Jul. 18, 2004, http://www.gp.org/articles/barrett_07_18_04.html.

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percent (3%) of the vote nationwide.120 However, minor-party candidates for federal and state offices at all levels are confronted with this same obstacle every election year. If a party has not demonstrated that it has strong support, ballot access is denied and a minor party candidate is forced to collect signatures to gain a place on the ballot.121 Even if successful in that effort, the minor-party candidate still needs to obtain a certain percentage of the vote in the election to gain ballot access for his party in the This restriction clearly discriminates next election cycle.122 against minor party candidates, but it does not categorically exclude them from the ballot and thus would have represented a procedural regulation under Thornton and prior Elections Clause cases. However, while automatic ballot access for major parties does not dictate electoral outcomes, it certainly influences such outcomes. It meets the Cook definition of handicapping a certain class of candidates (minor parties and their members) and placing them at a political disadvantage. Therefore, under Cook’s reasoning, automatic ballot access provisions for established parties are substantive and therefore unconstitutional. While signature requirements and automatic ballot access for major parties should be categorized as substantive regulations under Cook’s reasoning, defenders of such regulations may argue that they should remain in the procedural category because of the states’ interest in preventing chaotic and confusing elections.123 The Court has recognized these interests, which include preventing the clogging of election machinery, avoiding voter confusion and assuring that the winner of an election is the choice of the majority, or at least a strong plurality, of the voters.124 Accordingly, the Court has ruled that the states can regulate the number of candidates that appear on the ballot125 in the interest of protecting the political process from frivolous and fraudulent candidacies.126 In upholding the constitutionality of election regulations in Storer, the Court pointed out that the state 120. 121. 122. 123. 124. 125. 126.

PresidentElect.org, http://presidentelect.org/e2000.html. See Daybell, supra note 1, at 294-95. See id. at 296. Storer v. Brown, 415 U.S. at 724, 732 (1974). Id. (citing Jenness v. Forston, 403 U.S. 431, 442 (1971)). Bullock v. Carter, 405 U.S. 134, 145 (1972). Jenness, 403 U.S. at 442.

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296 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 “apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government.”127 These practical interests in maintaining order reflect the concerns raised by the Court in Anderson.128 While maintaining order and preventing chaos are valid state concerns, they cannot be used to justify election regulations that purposely favor the two established major parties. Continuing to categorize signature requirements and ballot access for the two major parties as procedural regulations that the states can make under their Elections Clause powers would allow the two major parties to maintain their dominance in American politics. These regulations are not evenhanded because they erect larger obstacles in front of third parties and independent candidates seeking ballot access. Such unfair regulations should not survive in their current form. C. Party Labels Party labels present a different challenge then that presented by signature requirements and automatic ballot access provisions. States typically place the party affiliation of major party candidates next to their names on the ballot.129 The state’s interest in providing such information to the voters is even less related to its interests in preventing voter confusion or clogging election machinery. Rather, the Court’s reasoning in Cook fails to distinguish the Missouri ballot labels regarding opponents of term limits from other information typically found on the ballot, such as the aforementioned party labels.130 The impact that a party label and an issue position label, such as on the one struck down in Cook, could have on voters’ decisions is comparable: A candidate’s party affiliation is a single piece of information to which the state draws voters’ attention by printing it on the ballot. Indeed, listing party affiliation is merely a shorthand way of listing a bundle of policy commitments held by the affiliated candidate. This

127. Storer, 415 U.S. at 736. 128. Anderson v. Celebrezze, 460 U.S. 780, 796, 800 (1983). 129. James A. Gardner, Neutralizing the Incompetent Voter: A Comment on Cook v. Gralike, 1 ELECTION L. J. 49, 52 (2002). 130. Id.

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makes it unlikely that the defect in the Arkansas ballot label law could have been the sin of providing information on the ballot about candidates’ substantive positions. . . .There are many jurisdictions in which having the word “Democrat” or “Republican” printed next to one’s name all but guarantees electoral defeat. Yet it seems clear that no candidate could successfully object to state law requiring disclosure on the ballot of party affiliation.131 After Cook, a challenge by an individual candidate to the placement of a partisan label on the ballot next to his name should not be discarded so lightly. A party label acts as a “clue” for voters with strong partisan attachments and provides a significant political advantage (or disadvantage) to one candidate over (or against) other candidates. For example, a Republican candidate running for Congress in a district with an overwhelming number of registered Republican voters will almost certainly want his party label on the ballot. His Democratic opponent, on the other hand, may not be so enthusiastic about having his party label next to his name on the ballot. For many voters in a Republican district, that “Democratic” label would probably be “pejorative” and at the very least “negative.”132 Such voters may have never voted for a Democratic candidate in the past or they may perceive all Democrats as members of a national party they distrust. In such a strong Republican district, the “Democratic” party label may not truly differ from the “pejorative” issue position labels found unconstitutional in Cook. While the Democratic label does not guarantee electoral defeat in this district, it does handicap the Democratic candidate and place him at a political disadvantage. In addition, just as Missouri’s forbidden issue label in Cook would have a substantive effect on voters’ decisions at a crucial moment in the voting process – right before the vote is cast – the same is true of a party label. In fact, many less informed voters simply rely on this clue of party affiliation to make their decision and do not take the time to research the various candidates’ positions on the issues.133 131. 132. 133.

Id. at 52-53. See Cook, 510 U.S. at 524. Many jurisdictions encourage this reliance by allowing voters to vote

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298 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 This argument is not theoretical. Many of the nation’s congressional districts are dominated by voters who historically vote for either Democratic or Republican candidates.134 Battles between the parties over redistricting indicate that both political parties know that it is in their best interest to create congressional districts dominated by voters most likely to vote for their candidates. These seemingly blind partisan preferences may explain why many localities have decided to remove party labels from the ballot.135 These localities are perhaps making an effort to break up one or both parties’ dominance, forcing voters to learn more about candidates in local elections and discouraging voters from pulling the Democratic or Republican lever on Election Day. D. Rethinking the Distinction between Procedural and Substantive Regulations The broadening of the definition of substantive regulations in Cook makes it difficult for future courts to continue to categorize many existing election regulations as procedural. Of course, one could ignore the Cook court’s rationale for why the Missouri ballot labels were substantive and interpret Cook as a narrow decision which focused on the “pejorative” nature of the Missouri ballot label – “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS.” – to strike it down.136 Chief Justice Rehnquist’s concurrence in Cook demonstrated this approach, relying on the First a straight-party Republican or Democratic ticket on Election Day. See, e.g., STATE OF TEXAS, SAMPLE BALLOT (2004), http://www.co.travis.tx.us/county_clerk/election/20041102/04novbedsheetball ot.pdf; STATE OF RHODE ISLAND, SAMPLE BALLOT (2004), http://www.rules.state.ri.us/special_projects/2004_genElection_ballots/2832.p df#search=‘2004%20sample%20election%20ballot%20straight%20party%20ti cket’. 134. See generally MICHAEL BARONE and GRANT UJIFUSA, THE ALMANAC OF AMERICAN POLITICS 2000 (National Journal Group, Inc. 1999). 135. Perhaps the best example of removal of party labels comes from Nebraska, where a nonpartisan unicameral legislature is elected by Nebraskans. Candidates for election to Nebraska’s unicameral legislature do not have their political party affiliations, or labels, next to their names on the election ballot. Instead, the two candidates who obtain the most votes in the primary election face each other in the general election. The History of Nebraska’s Unicameral Legislature, http://www.unicam.state.ne.us/learning/history.htm. 136. Vicki C. Jackson, Cook v. Gralike: Easy Cases and Structural Reasoning, 2001 SUP. CT. REV. 299, 309 (2002); Cook, 531 U.S. at 514-15.

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Amendment rather than the Elections Clause to strike down the Missouri labels.137 Rehnquist’s concern was “with the government speaking in a pejorative way about a. . .political candidate and the [fact that the] pejorative speech is a condition for appearing on the ballot.”138 Had the court adopted Rehnquist’s reasoning, the pejorative labels would represent a violation of free speech and therefore would be unlawful in both federal and state elections.139 However, the Cook majority, by relying on the Elections Clause, took a different path. Under the majority’s reasoning, the use of issue labels – pejorative or otherwise – in state elections was not directly addressed, and therefore was left open. Had the Cook Court analyzed the Missouri issue label as a violation of free speech, as suggested by Rehnquist, it would not have disrupted the procedural/substantive distinction articulated in Thornton. The “pejorative” label would have been forbidden in any state or federal election and the issues of federalism that underlie Elections Clause jurisprudence would not have come into play.140 By relying on the Elections Clause, the court clearly broadened its definition of substantive regulations to include a condition which was not excluding anyone from the ballot. The implication of this new definition is that it has opened the door for third parties and independent candidates to challenge election regulations, not for dictating the electoral outcome because they exclude a class of candidates from the ballot, but for handicapping those candidates and placing them at a political disadvantage. This lower threshold of what encompasses an unconstitutional regulation is easier to meet and makes it easier for courts postCook to strike down election regulations than it was under Thornton.141

137. Jackson, supra note 136, at 327; see also Cook, 531 U.S. at 530-31 (Rehnquist, C.J., concurring). 138. Jackson, supra note 136, at 327. 139. See generally Cook, 531 U.S. 510 (Rehnquist, C.J., concurring). 140. Id. at 530-31 (Rehnquist, C.J., concurring). 141. A review of some subsequent decisions since Cook demonstrates that federal courts have not relied heavily on Cook or explored the dimensions of its broader definition of “substantive” regulations in analyzing the constitutionality of election regulations. Cartwright v. Barnes provides an example. 304 F.3d 1138, 1142 (2002). In that case, the United States Court of Appeals for the Eleventh Circuit relied mostly on Thornton to uphold Georgia election regulations similar to those upheld by the Court three decades ago in

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300 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 VI. CONCLUSION

The United States Supreme Court faced a choice when Cook came to it on appeal. The majority could have adopted the reasoning in Justice Rehnquist’s concurrence142 and struck down the Missouri ballot labels on First Amendment grounds because of their pejorative nature. Instead, the Court chose a different route by strengthening and expanding its Elections Clause jurisprudence and redefining the scope of impermissible “substantive” election regulations. This redefinition not only includes regulations that dictate the outcomes of federal elections because they patently exclude candidates from the ballot, but also could include regulations more subtle in their application that influence, but do not necessarily dictate, the outcomes of federal elections. By articulating a broader definition of a substantive regulation, the Court must now confront the realities of this new definition. If Cook is taken seriously, it will be difficult for courts to continue to uphold certain regulations, such as signature requirements, automatic ballot access for major parties and especially party labels, as neutral “procedural” regulations that do not seek to influence electoral outcomes. With Cook, the Court has opened the door for minor parties and independent candidates to challenge these regulations as substantive regulations that violate the Elections Clause. Reforms aimed at opening up the federal electoral process, such as removal of party labels from states’ ballots for federal elections, would not destroy the two parties overnight – and perhaps not ever. The essence, and thus the accompanying stability, of the two-party system would remain intact: the two major parties would not disband simply because ballots did not include the “Democrat” or “Republican” label next to candidates’ names. Instead, the major parties would continue their operations because of their continued incentive to field candidates who agree on a set of unifying issues. The all-or-nothing aspects Jenness. 403 U.S. 431 (1970). The Court does not invoke Cook’s language regarding handicapping certain candidates or placing them at a “political disadvantage.” In fact, it only mentions the Cook case once in a footnote. Cartwright, 304 F.3d at 1142, n.4. 142. See generally Cook v. Gralike, 531 U.S. 510 (Rehnquist, C.J., concurring).

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of American elections – including the Electoral College143, winnertake-all elections144 and single-member congressional districts145 – would still provide significant incentives for voters to vote for major party candidates.146 However, removal of the party labels, as well as other reforms to break the two-party stranglehold, would represent a welcome breath of fresh air. Such reforms may not destroy the two-party system, but they could provide access for more dissident political voices. As a start, removal of party labels would prevent voters from pulling the Democratic or Republican lever. Without party labels as a guide, voters, no longer able to rely on party labels to decide for whom to vote, would be forced to learn at least a little bit more about the various candidates for political office. This shift would probably not take place overnight, but as incumbents retired, new candidates would have the opportunity to run on a fresher slate. This change would also achieve a traditional goal of third parties and independent candidates – a broader and more vibrant political debate: The minor party’s often unconventional opinions broaden political debate, expand the range of issues with which the electorate is concerned, and influence the positions of the majority, in some instances becoming majority positions. And its very existence provides an outlet for voters to express dissatisfaction with the candidates or platforms of the major parties.147 In short, just as they have in the past, minor parties and their candidates could make the major parties more responsive to the emergence of new issues. Such reforms would help even the playing field between the two-party system and political outsiders by equalizing the rules that apply to both major and minor party candidates in their quests to gain access to the ballot. With easier

143. THEODORE J. LOWI AND BENJAMIN GINSBERG, AMERICAN GOVERNMENT: FREEDOM AND POWER 537 (2d ed. W.W. Norton & Co. 1992). 144. See id. at 474. 145. Id. at 523-27. 146. SORAUF, supra note 46, at 37. 147. Munro v. Socialist Workers Party, 479 U.S. 189, 200 (1986) (Marshall, J., dissenting).

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302 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:273 access to the ballot, the major parties may be less likely to trivialize the influence of their dissident members and may make greater efforts to accommodate them. If the major parties ignored new issues, then perhaps dissenters within one or both parties could more easily form a new party to reflect and advocate for that issue. This persistent and real threat to the two parties could create a broader dialogue within the parties and perhaps across the entire political system. While the two major parties may well continue to control the electoral process through the domination of state legislatures across the country, they would no longer be able to take that dominance for granted. Cook has opened the door for political outsiders to challenge that dominance. Now the judiciary must keep that door open.

Matthew M. Mannix*

* Juris Doctor Candidate, Roger Williams University School of Law; A.B., Princeton University (Politics). I dedicate this Comment to my late father, Michael T. Mannix.