Volume 7
Fall 2012
Number 1
Supreme Court Issue
Foreword
Hidden Gems in the Historical 2011-2012 Term,
and Beyond
John C. Eastman
Articles
Nuremberg-era Jurisprudence Redux: The Supreme
Court in Kiobel v. Royal Dutch Petroleum Co. and
the Legal Legacy of Nuremberg
The Two That Got Away: First American Financial
Corp. v. Edwards and Kiobel v. Royal Dutch
Petroleum Co.
Of Leakers and Legal Briefers: The Modern Supreme
Court Law Clerk
Dog Sniffs, Robot Spiders, and the Contraband
Exception to the Fourth Amendment
Desperately Seeking Scrutiny: Why The Supreme
Court Should use Fisher v. University of Texas to
Restore Meaningful Review to Race-based College
Admission Programs
Michael Bazyler &
Jennifer Green
Jonathan S. Massey
Todd C. Peppers
Stephen A. Simon
Joshua P. Thompson &
Adam R. Pomeroy
HIDDEN GEMS IN THE HISTORICAL 2011–2012
TERM, AND BEYOND
John C. Eastman*
There was a small, little case decided on June 28, 2012, the
last day of the Supreme Court’s October 2011 Term. No, I’m not
talking about First American Financial v. Edwards,1 dismissed
as improvidently granted (DIG’d) on the last day, but that other
little case involving some rather arcane aspects of the nation’s
health care system that seems to have diverted attention, both
political and legal, from almost every other case the Court
decided. So before the deluge of law review articles and symposia
addressing National Federation of Independent Business v.
Sebelius2 (the title itself hardly does justice to the case, which,
among other things, pitted twenty-six States against the United
States), let me address some of the lesser publicized but very
significant cases from the term before, offering a few comments of
my own on the health care decision, lest those other decisions get
completely lost in the shuffle. That will, I hope, lay a foundation
for the remainder of this issue of the law review, which bridges
the term just passed and the term that lies ahead by way of a
rare carry-over case.
Among the more significant cases the Court decided last term
that risk being swamped into obscurity by the health care
* John C. Eastman is the Henry Salvatori Professor of Law & Community
Service at Chapman University School of law. Professor Eastman served as the
school’s Dean from 2007 to 2010, when he elected to pursue a bid for California
Attorney General. After attending law school at the University of Chicago
School of Law where he graduated with honors in 1995, Professor Eastman
served as law clerk with Justice Clarence Thomas at the Supreme Court of the
United States and with Judge J. Michael Luttig at the United States Court of
Appeals for the Fourth Circuit. Among his numerous scholarly publications,
Professor Eastman is co-author of The American Constitutional Order: History,
Cases, and Philosophy constitutional law case book.
1. 610 F.3d 514 (9th Cir. 2010), cert. granted, 567 U.S. ___, 131 S. Ct.
3022 (June 20, 2011), cert. dismissed, 567 U.S. ___, 132 S. Ct. 2536 (June 28,
2012) (No. 10-708).
2. 567 U.S. ___, 132 S. Ct. 2566 (2012).
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decision are: Knox v. Service Employees International Union,
Local 1000;3 Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC;4 the twin ineffective assistance of counsel cases,
Lafler v. Cooper5 and Missouri v. Frye;6 and the twin juvenile life
without parole cases, Miller v. Alabama and Jackson v. Hobbs.7
These cases have dramatically changed the landscape of existing
law and, together with Arizona v. United States8 (which is
admittedly not one of the cases obscured by the health care
decision), are likely to generate a great deal of litigation in
coming years.
Let me start briefly with the Arizona decision.9
The
contrasting headlines tell an interesting tale about the fate of
Arizona’s immigration enforcement law, Arizona Senate Bill
1070.10 “Blocking Parts of Arizona Law, Justices Allow Its
Centerpiece,” reported the New York Times shortly after the
decision was released.11 But the Los Angeles Times and NPR
touted a different story, “Supreme Court Strikes Down Key Parts
of Arizona Immigration Law.”12 USA Today reported that “In
3.
4.
5.
6.
7.
8.
9.
10.
567 U.S. ___, 132 S. Ct. 2277 (2012).
565 U.S. ___, 132 S. Ct. 694 (2012).
566 U.S. ___, 132 S. Ct. 1376 (2012).
566 U.S. ___, 132 S. Ct. 1399 (2012).
567 U.S. ___, 132 S. Ct. 2455 (2012).
567 U.S. ___, 132 S. Ct. 2492 (2012).
Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492 (2012).
See Alan Gomez et al., In Arizona Law’s Wake, Other States to Forge
Ahead, USA TODAY, June 25, 2012, http://www.usatoday.com/news/washington/
judicial/story/2012-06-25/supreme-court-arizona-immigration-rulinganalysis/55825582/1; Adam Liptak, Blocking Parts of Arizona Law, Justices
Allow Its Centerpiece, N.Y. TIMES, June 26, 2012, http://www.nytimes.com/
2012/06/26/us/supreme-court-rejects-part-of-arizona-immigration-law.html?
pagewanted=all; Eyder Peralta, Supreme Court Strikes Down Key Parts of
Arizona Immigration Law, NPR (June 25, 2012, 8:02AM), http://www.npr.org/
blogs/thetwo-way/2012/06/25/155697001/supreme-court-strikes-down-keyprovisions-of-arizona-immigration-law; Julia Preston, Arizona Ruling Only a
Narrow Opening for Other States, N.Y. TIMES, June 25, 2012, http://www.
nytimes.com/2012/06/26/us/justices-decision-a-narrow-opening-for-otherstates.html?pagewanted=all; David G. Savage, Supreme Court Strikes Down
Key Parts of Arizona Immigration Law, L.A. TIMES (June 25, 2012), http://
articles.latimes.com/2012/jun/25/news/la-pn-supreme-court-strikes-down-keyparts-of-arizona-immigration-law-20120625.
11. Liptak, supra note 10.
12. Peralta, supra note 10; Savage, supra note 10.
2
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Foreword
Arizona Law’s Wake, Other States to Forge Ahead,” while the
New York Times backtracked a bit from its earlier post to note
that “Arizona Ruling Only a Narrow Opening for Other States.”13
So much confusion.
Here’s what really happened. Arizona’s statute, the “Support
Our Law Enforcement and Safe Neighborhoods Act,” actually
contains ten operative sections and about another dozen major
subsections.14 Although the Obama Administration’s Department
of Justice sought to enjoin the entire statute, the district court,
affirmed by the Ninth Circuit, preliminarily enjoined only four of
the more than twenty substantive provisions.15 The Supreme
Court upheld the preliminary injunction with respect to three of
those provisions, dissolved the preliminary injunction with
respect to the fourth, and remanded for further proceedings.16
Granted, the centerpiece of the law—the provision that had
generated the most controversy—was upheld (or, more precisely,
had the preliminary injunction against it lifted).17 That provision,
section 2(B), directed Arizona law enforcement to ascertain, when
practical, the immigration status of anyone they had lawfully
stopped if they had reasonable suspicion unrelated to the
individual’s race or ethnic background that the individual was
unlawfully present in the United States18—hence the New York
Times’ first headline.19
But the L.A. Times and NPR headlines were also correct.20
The preliminary injunctions against sections 3, 5(C), and 6 were
upheld.21 Section 3 created a state crime for failure to carry the
immigration papers mandated by federal law,22 and although it
imposed a criminal penalty virtually identical to that imposed by
federal law, the Court ruled that section 3 supplemented federal
13.
14.
15.
16.
Gomez, supra note 10; Preston, supra note 10.
S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010).
United States v. Arizona, 641 F.3d 339, 344 (9th Cir. 2011).
Arizona v. United States, 567 U.S. ___, ___, 132 S. Ct. 2492, 2510
17.
18.
19.
20.
21.
22.
Id.
Ariz. S.B. 1070 § 2(B).
See Liptak, supra note 10.
See Peralta, supra note 10; Savage, supra note 10.
Arizona, 567 U.S. at ___, 132 S. Ct. at 2510.
Ariz. S.B. 1070 § 3.
(2012).
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[Volume VII
law and was therefore preempted by the comprehensive federal
regulatory scheme—known as “field” preemption.23 Section 5(C)
imposed criminal penalties on employees who unlawfully sought
work in the United States,24 but the Supreme Court found that
subsection preempted because it created an obstacle to the
purpose of federal law, which imposed criminal penalties on
employers but only civil penalties on employees—the so-called
“obstacle” preemption.25 Section 6 authorized local law enforcement to make warrantless arrests whenever they had
probable cause to believe that someone was an illegal immigrant
subject to removal from the United States,26 and although the
Supreme Court recognized that federal law explicitly envisions
enforcement cooperation from the states, it held that the federal
scheme did not countenance unilateral enforcement by state
officials; that, too, would apparently serve as an obstacle to the
federal law, particularly as manifested by non-enforcement policy
being set by the executive branch with increasing frequency.27
Although not as controversial as section 2(B), these were “key
provisions” of the Arizona statute, as the L.A. Times and NPR
noted.28
The most controversial provision of Arizona’s law was upheld
by the Supreme Court, and the lower court decision upholding
most of the rest of the statute—or, technically, not preliminarily
enjoining—was not even part of the appeal.29 Those provisions
include the anti-sanctuary parts of the statute, sections 2(A) and
2(F)–(J), which prohibit all officials and agencies in the State
from limiting enforcement of federal immigration laws, and even
allow individual Arizonans to sue officials and agencies who
violate the prohibition and to recover attorneys’ fees and costs if
successful (in addition to the $1,000–$5,000 daily fine that would
be assessed and deposited into the Gang and Immigration
Enforcement Fund).30 Other provisions still in effect include the
23.
24.
25.
26.
27.
28.
29.
30.
4
Arizona, 567 U.S. at ___, 132 S. Ct. at 2503.
Ariz. S.B. 1070 § 5(C).
Arizona, 567 U.S. at ___, 132 S. Ct. at 2505.
Ariz. S.B. 1070 § 6.
Arizona, 567 U.S. at ___, 132 S. Ct. at 2507.
See Peralta, supra note 10; Savage, supra note 10.
Arizona, 567 U.S. at ___, 132 S. Ct. at 2492.
Ariz. S.B. 1070 § 2(A), (F)–(J).
2012]
Foreword
following: Section 5, which makes it illegal to hire (or hire and
pick up) passengers for work with a motor vehicle if doing so
impedes traffic, or to transport, conceal, or harbor illegal aliens,
and which provides that vehicles used to do so may be
impounded;31 and section 9(A), which expands the e-verify employment eligibility provisions of prior Arizona law.32 No wonder
USA Today found reason for other States to be forging ahead.33
And yet, the New York Times’ revised headline that the
Court’s ruling provided only a “narrow” opening for the States
was also correct.34 Although it vacated the preliminary injunction
against section 2(B), Justice Kennedy’s opinion for the Court is
hardly a ringing endorsement of that provision.35 Indeed, the
opinion all but invites further litigation alleging that the provision, as implemented, is resulting in racial profiling.36 Arizona
will have to provide impeccable training to its officers to forestall
that onslaught, as will other States who choose to venture into
the “narrow” opening that the Court’s decision left them in their
efforts to deal with the significant collateral costs of the federal
government’s increasingly deliberate refusal to fully enforce the
nation’s immigration laws.
The next major case I want to discuss is Knox v. Service
Employees International Union, Local 1000.37 Although it did not
receive nearly as much attention as the Arizona case, the
decision was dramatic, and will likely have a profound impact on
our political system. The case arose out of California Governor
Arnold Schwarzenegger’s attempt, in 2005, to reign in the power
of public employee unions via a couple of proposed initiatives—
Propositions 75 and 76—which would respectively have obliged
unions to obtain annual consent from employees before union
dues could be used for political purposes, and given the Governor
the authority to reduce state appropriations for public-employee
31.
32.
33.
34.
35.
(2012).
Id. § 5.
Id. § 9(A).
Gomez, supra note 10.
Preston, supra note 10.
Arizona v. United States, 567 U.S. ___, ___, 132 S. Ct. 2492, 2507–10
36. See id. at ___, 132 S. Ct. at 2510.
37. 567 U.S. ___, 132 S. Ct. 2277 (2012).
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compensation when circumstances warranted.38 The unions had
already set their political budget for the year, but these were
“live or die” initiatives, and they found themselves with
insufficient funds to wage a successful campaign against them.39
So without seeking approval from “rank and file” union members
(or even giving them notice and an opportunity to opt-out) or,
even more troubling, compelling non-union members to contribute to the unions under so-called “agency shop” rules, the
unions increased payroll deductions by 25%, raising somewhere
between $10 and $15 million that went directly into the
campaign to defeat the initiatives.40
Some non-union employees—twenty-eight thousand of
them—challenged the non-consensual assessment.41 The
Supreme Court ruled 7 to 2 that it was illegal and a violation of
the Court’s prior decision in Chicago Teachers Union v. Hudson,42
which required, among other things, that unions provide notice
and an opportunity to opt-out before collecting dues that will be
used for political purposes.43
But that part of the decision, significant in itself, is not what
makes the case so dramatic. Justice Alito, writing for a Court
majority of five Justices, grappled with the common practice of
requiring objecting employees to opt out rather than opt in to the
unions’ political funds. The Court held that, at least with respect
to the special assessments at issue, an opt-out mechanism was
an unconstitutional infringement of the employees’ First Amendment right not to be coerced to support political speech they
chose not to support.44 The reasoning in support of that holding,
though, strongly suggests that the common opt-out practice,
recognized in prior cases without much analysis, was itself
unconstitutional. “By authorizing a union to collect fees from
nonmembers and permitting the use of an opt-out system for the
collection of fees levied to cover nonchargeable expenses [e.g.,
38.
39.
40.
41.
42.
Id. at ___, 132 S. Ct. at 2285.
Id. at ___, 132 S. Ct. at 2285–86.
Id.
Id. at ___, 132 S. Ct. at 2286.
Id. at ___, 132 S. Ct. at 2295–96; Chicago Teachers Union, Local No. 1
v. Hudson, 475 U.S. 292, 307–11 (1986).
43. Chicago Teachers Union, 475 U.S. at 307–11.
44. Knox, 567 U.S. at ___, 132 S. Ct. at 2295–96.
6
2012]
Foreword
political expenses], our prior decisions,” the Court noted,
“approach, if they do not cross, the limit of what the First
Amendment can tolerate.”45 That sentence had to send shock
waves through the executive suites of the union halls, and the
grand irony is that the proposition, which was defeated by virtue
of the illegally obtained funding, would have eliminated the optout system. Now the Court has strongly suggested that a voter
initiative is not required; the First Amendment may already
forbid the opt-out mechanism for public employee unions.
Next up on the overlooked, but nonetheless earth-shattering
docket is Hosanna-Tabor Evangelical Lutheran Church & School
v. EEOC.46 There are a number of federal employment laws, such
as Title VII47 and the Americans with Disabilities Act (ADA),48
preventing discrimination in employment on various grounds
such as race, gender, religion, and disability. When applied to
churches, those laws can sometimes interfere with the constitutionally protected free exercise of religion, so the lower
courts developed a ministerial exception to the federal statutory
requirements.49 A church can “discriminate” on the basis of
religion when making decisions about whom to employ as its
minister, for example, or on the basis of gender when church
doctrine limits ordination to men.50
The issue presented by Hosanna-Tabor was, first, whether
the Supreme Court would similarly recognize a ministerial
exception, and if so, whether, contrary to the holding of the Sixth
Circuit below, it was broad enough to cover a teacher at a
religious school.51 Cheryl Perich worked at the Hosanna-Tabor
Lutheran Church and School as a “called” teacher rather than a
45.
46.
47.
48.
49.
Id. at ___, 132 S. Ct. at 2291 (emphasis added).
565 U.S. ___, 132 S. Ct. 694 (2012).
42 U.S.C. §§ 2000e to 2000e-17 (2006).
42 U.S.C. §§ 12210 to 12213 (2006).
See, e.g., Spencer v. World Vision, Inc., 633 F.3d 723, 755–56 (9th Cir.
2011) (discussing ministerial exception to Title VII); Rweyemamu v. Cote, 520
F.3d 198, 204–06 (2d Cir. 2008) (tracing the use and evolution of the ministerial
exception in different circuits); McClure v. Salvation Army, 460 F.2d 553, 558–
61 (5th Cir. 1972) (concluding that Congress did not intend to “regulate the
employment relationship between church and minister” through Title VII).
50. See, e.g., Spencer, 633 F.3d at 756.
51. 565 U.S. at ___, 132 S. Ct. at 699.
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[Volume VII
“lay” teacher,52 and had the title of “Minister of Religion,
Commissioned.”53 In addition to teaching secular subjects, she
taught a religion class, led students in daily prayer and
devotional exercises, and took students to a weekly school-wide
chapel service, which she sometimes led herself.54 She was
ultimately placed on medical disability, and after five months,
sought to return to work—but was informed that the school had
hired a replacement for the remainder of the school year and in
any event, the school felt that she was not ready to return to
work.55 After Perich threatened to sue (apparently in violation of
the Church’s doctrinal policy in favor of internal, non-adversarial
dispute resolution) and refused to leave the building, the
religious congregation that ran the school rescinded Perich’s
“call,” and terminated her from the teaching position.56 Perich
filed a charge with the Equal Employment Opportunity
Commission (EEOC), claiming that the Church/School had discriminated against her because of her disability in violation of
the ADA, and retaliated against her because of her assertion of
her legal rights under the ADA.57 The EEOC ultimately brought
suit against the Church on her behalf, alleging unlawful retaliation in violation of the ADA.58
The Supreme Court, in a unanimous decision by Chief
Justice Roberts, held that there was a ministerial exception,
compelled by both the Free Exercise Clause and the
Establishment Clause of the First Amendment.59 “Requiring a
church to accept or retain an unwanted minister, or punishing a
church for failing to do so, . . . interferes with the internal
governance of the church,” it held, “depriving the church of
52. Id. at ___, 132 S. Ct. at 699–700 (“‘Called’ teachers are regarded as
having been called to their vocation by God through a congregation. . . . ‘Lay’ or
‘contract’ teachers, by contrast, are not required to be trained by the Synod or
even to be Lutheran.”).
53. Id. at ___, 132 S. Ct. at 707.
54. Id. at ___, 132 S. Ct. at 708.
55. Id. at ___, 132 S. Ct. at 700.
56. Id.
57. Id. at ___, 132 S. Ct. at 701.
58. Id.
59. Id. at ___, 132 S. Ct. at 702.
8
2012]
Foreword
control over the selection of those who will personify its beliefs.”60
Significantly, the Court rejected, as having “no merit,” the
EEOC’s contention that the law should be upheld under
Employment Division v. Smith61 as a law of general applicability,
holding that there was a significant difference between a law
that regulated outward conduct and one that interfered with the
internal operations of the Church.62
The Court then held that the ministerial exception was not
limited to the head of a religious congregation, but extended
beyond the pulpit to people like Perich who were in “called”
ministerial positions, noting that Perich herself claimed the
parsonage deduction on her tax returns—a deduction available
only to ministers—and listing a slew of other indicia that she was
performing duties as a minister.63 Just how far beyond the pulpit
the exception extends, and which of the litany of indicia it
provided are necessary to demonstrate that the exception applies,
the Court did not say. Nor did it indicate whether the ministerial
exception would bar other kinds of lawsuits, such as breach of
contract or torts by religious employers. Both of these open issues
are likely to spawn a new generation of litigation in coming years
as the lower courts grapple with the full implications and
meaning of the Court’s decision.
Continuing with the theme of cases that are going to
generate a lot of new litigation, we have the term’s two
ineffective assistance of counsel cases, Lafler v. Cooper64 and
Missouri v. Frye.65 Both involved the plea bargaining process, in
which ineffective claims had heretofore not been entertained.66
Lafler involved erroneous advice provided by the attorney that
led his client to reject a plea offer,67 and Frye involved an
attorney’s failure to deliver a prosecutor’s plea offer before it
expired.68 Justice Kennedy’s opinions for the Court in both cases,
60.
61.
62.
63.
64.
65.
66.
67.
68.
Id. at ___, 132 S. Ct. at 706.
494 U.S. 872 (1990).
Hosanna-Tabor, 565 U.S. at ___, 132 S. Ct. at 706–07.
Id. at ___, 132 S. Ct. at 707–08.
566 U.S. ___, 132 S. Ct. 1376 (2012).
566 U.S. ___, 132 S. Ct. 1399 (2012).
Id.; Lafler, 566 U.S. at ___, 132 S. Ct. at 1376.
566 U.S. at ___, 132 S. Ct. at 1383.
566 U.S. at ___, 132 S. Ct. at 1405.
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by a slim 5 to 4 majority, emphasized the need for ineffective
assistance claims at the plea bargaining phase because so many
cases in the criminal justice system are resolved with plea
bargains.69 Justice Scalia wrote stinging dissents in both cases,
and uncharacteristically read them from the bench.70 Never one
to mince words, Justice Scalia accused the majority of creating
an entirely new area of constitutional law, with a standard that
required “retrospective crystal-ball gazing posing as legal
analysis, which will confound lower courts and result in a flood of
litigation.”71 And that was with respect to Frye, the factual
circumstances of which are probably rare. The potential explosion of litigation after Lafler is even greater. How many
predictions by defense attorneys to their clients about the
strength of the prosecution’s case or the prosecution’s ability to
prove one of the elements of a crime will be deemed, after the
fact, to have been sufficiently wrong to qualify as ineffective
assistance? I expect that the lower courts will grapple with these
questions for a long time before we know how broad an impact
these cases will have.
The next set of cases are also going to generate a lot of
litigation, but at least the pool of potential claimants is finite
(unlike with Lafler and Frye). In Miller v. Alabama, the Court
once again confronted juvenile sentencing policies of the States.72
Previously, in Roper v. Simmons, the Court had ruled that
imposing a death penalty on juvenile murderers was unconstitutional and a violation of the Eighth Amendment’s Cruel
and Unusual Punishment Clause because of the uniquely harsh
nature of the death penalty.73 Then, in Graham v. Florida, the
Court extended that ruling to prohibit life without parole
sentences for juveniles who committed non-homicidal crimes.74
69. Id.; Frye, 566 U.S. at ___, 132 S. Ct. at 1399.
70. Frye, 566 U.S. at ___, 132 S. Ct. at 1412 (Scalia, J., dissenting); Lafler,
566 U.S. at ___, 132 S. Ct. at 1391 (Scalia, J., dissenting).
71. Frye, 566 U.S. at ___, 132 S. Ct. at 1413 (Scalia, J., dissenting).
72. 567 U.S. ___, ___, 132 S. Ct. 2455, 2460 (2012) (Jackson v. Hobbs was
heard in conjunction with Miller v. Alabama. See Order for case to be heard in
tandem, Jackson v. Hobbs, 132 S. Ct. 548 (2011) (No. 10-9647)).
73. 543 U.S. 551, 578 (2005).
74. 560 U.S. ___, ___, 130 S. Ct. 2011, 2034 (2010).
10
2012]
Foreword
Miller extended those rulings even further.75 Miller confronted
two cases involving juvenile murderers, one from Alabama, the
other from Arkansas.76 Both states, like twenty-six other states
and the federal government, required a mandatory life without
parole sentence for murders committed under certain circumstances.77 Miller’s circumstances were especially egregious.
He and a friend followed Cole Cannon to his home after Cannon
had purchased drugs from Miller’s mother.78 They all smoked
marijuana and drank together until Cannon passed out.79 Miller
then stole Cannon’s wallet and removed $300 in cash, but when
he attempted to put the empty wallet back in Cannon’s pocket,
Cannon awoke and grabbed him.80 Miller’s accomplice hit
Cannon over the head with a baseball bat, but Miller then took
the bat and repeatedly beat Cannon back into unconsciousness
with it.81 The two “boys” then left, but returned to the scene to
destroy the evidence of their crime by burning down the house.82
Cannon was still inside and died of smoke inhalation.83 Miller
was subsequently tried as an adult and, like more than two
thousand other inmates currently inhabiting state or federal
prisons for murders they committed before their eighteenth
birthdays, received a mandatory sentence of life without parole.84
The Court, in a 5 to 4 decision written by Justice Kagan, held
that the mandatory sentence violated the Eighth Amendment
because “juveniles have diminished culpability and greater
prospects for reform.”85 The case was remanded for an individualized assessment—the kind of assessment previously
applied only in death penalty contexts—about the appropriateness of a life without parole sentence, with a strong cautionary
flag that the Court would not view a re-imposition of such a
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
See Miller, 567 U.S. at ___, 132 S. Ct. 2455 (2012).
Id. at ___, 132 S. Ct. at 2461–62. (2012).
Id.
Id. at ___, 132 S. Ct. at 2462.
Id.
Id.
Id.
Id.
Id.
Id. at ___, 132 S. Ct. at 2463.
Id. at ___, 132 S. Ct. at 2464.
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sentence with favor in most instances.86 Two thousand cases will
now be reopened to revoke the “mandatory” aspect of the existing
sentence and to conduct hearings about the individualized
appropriateness of life without parole for the juvenile convicted of
murder.87 As I said, that pool of cases is at least finite. But the
individualized assessment will itself undoubtedly spawn a new
cottage industry in habeas corpus challenges, and that aspect of
the case is not limited to the existing inmates sent away for life
under mandatory sentencing schemes.
One of the sleeper cases from the past term that, alas,
remained a sleeper, was the aforementioned First American
Financial Corp. v. Edwards.88 Heard back in November, the
Court waited until the last day of its term to dismiss what could
have been an extremely important decision on Article III
standing to litigate cases based only on technical statutory
violations without evidence of any individualized financial,
reputational, or physical injury.89 First American owned a 17.5%
interest in a home mortgage escrow company that routinely
referred its customers’ title insurance work to First American.90
First American was alleged to have paid much more for its stake
in the escrow company than it was worth, leading to the
implication that its purchase price amounted to a kickback for
the anticipated referrals, an alleged violation of federal law for
“federally related” (aren’t they all?) home loans that would yield
treble the price of the title insurance in damages for the
individual members of the class on whose behalf the suit was
brought and an (undoubtedly large) attorneys’ fee for the
enterprising lawyers who brought the suit.91 The district court,
affirmed by the Ninth Circuit, rejected First American’s
86. Id. at ___, 132 S. Ct. at 2469–75.
87. Tamara Rebecca Birckhead, Should Miller v. Alabama be Applied
Retroactively?, JUV. JUST. BLOG (Aug. 15, 2012), http://juvenilejusticeblog.web.
unc.edu/2012/08/15/should-miller-v-alabama-be-applied-retroactively/.
88. 610 F.3d 514 (9th Cir. 2010), cert. granted, 567 U.S. ___, 131 S. Ct.
3022 (June 20, 2011), cert. dismissed, 567 U.S. ___, 132 S. Ct. 2536 (June 28,
2012) (No. 10-708) (dismissing certiorari as improvidently granted).
89. Order Dismissing Writ of Cert., First Am. Corp., 567 U.S. ___, 132 S.
Ct. 2536 (No. 10-708).
90. First Am. Corp., 610 F.3d at 516.
91. Id. at 517.
12
2012]
Foreword
contention that Edwards’ failure to allege any actual harm
deprived her of standing to bring the case, the statutory damages
claim notwithstanding.92 Because there was not a split among
the Circuit Courts of Appeal on the issue, the general view
among Supreme Court watchers was that the Court took the case
to reverse and establish some clarity on Article III standing
derived from statutory causes of action. But it was not to be. The
case was dismissed as improvidently granted, leaving the issue to
be addressed in a future case.
Kiobel v. Royal Dutch Petroleum was also unresolved, but
unlike First American, it was granted a reprieve—an order for rebriefing and re-argument—set for the first day of next term,
October 1, 2012.93 Kiobel involves whether a foreign corporation
can be sued in a United States Court under the Alien Tort
Statute for conduct that allegedly occurred entirely in a foreign
nation.94 During oral argument, several Justices raised the more
basic question of whether the Alien Tort Statute actually authorized any foreign national—real person or corporation—to bring
suit in a United States Court for conduct that allegedly occurred
in foreign nations, and if so, whether such a broad assertion of
jurisdiction was constitutional.95 That question, unanswered, is
what yielded the rare order for re-briefing and re-argument.
Both of these cases are addressed in the pages that follow.
Jonathan Massey addresses them both in The Two That Got
Away, and my colleague at Chapman University School of Law,
Michael Bazyler, together with his co-author, University of
Minnesota Professor Jennifer Green, add another perspective on
the Kiobel case in Nuremberg-Era Jurisprudence Redux.
Then there are the dog-sniffing cases, both fittingly scheduled to be heard on Halloween. Florida v. Jardines, addressed by
Professor Stephen Simon, presents the question whether the
Fourth Amendment precludes use of drug-sniffing dogs on the
92. Id. at 518.
93. Order for reargument, 565 U.S. ___, 132 S. Ct. 1738 (Mar. 5, 2012) (No.
10-1491).
94. Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 565 U.S. ___, 132 S. Ct. 472 (Oct. 17, 2011), reh’g granted, 565 U.S. ___,
132 S. Ct. 1738 (Mar. 5, 2012) (No. 10-1491).
95. Transcript of Oral Argument, Kiobel, 565 U.S. ___, 132 S. Ct. 472 (No.
10-1491) (argued Feb. 28, 2012).
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exterior of a home in order to gain the probable cause necessary
for a warrant to search that most protected of inner sanctums, a
man’s castle.96 Florida v. Harris tackles drug-sniffing dogs in the
context of a man’s ride.97 Because the Court has already upheld
sniffing of the exterior chrome,98 this case presents the question
of the sniffing dog’s pedigree.99 The Florida Supreme Court threw
out Harris’s plea conviction, holding that absent evidence of how
the dog was trained, whether that training had been certified by
an expert, and how the dog (and its handler) had actually
performed on duty, the dog’s pedigree was simply not reliable
enough to constitute probable cause for the subsequent search
(the fact that drugs were found notwithstanding, apparently).100
Next up in the 2012 term is the big affirmative action case
out of Texas, Fisher v. University of Texas.101 There is the
apocryphal story about a law school professor who once gave the
same essay question on an exam that he had given previously.
When confronted with the apparent problem, he acknowledged
that he had, but noted that, courtesy of Justice O’Connor, the
answer had changed. So, too (perhaps), with Fisher. One of
Justice O’Connor’s parting shots a few years before her retirement was her set of split decisions in Gratz v. Bollinger102 and
Grutter v. Bollinger,103 effectively upholding race-based admissions policies, at least for a while, if a University was not too
open and methodical about it. The University of Michigan’s law
school had purportedly used a holistic, black-box approach to
96. Jardines v. State, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995
(Jan. 6, 2012) (No. 11-564).
97. Harris v. State, 71 So. 3d 756 (Fla. 2011), cert. granted, 132 S. Ct. 1796
(Mar. 26, 2012) (No. 11-817).
98. Illinois v. Caballes, 543 U.S. 405, 409 (2005).
99. Harris, 71 So. 3d at 762.
100. Id. at 775.
101. 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (Feb. 21,
2012) (No. 11-345).
102. 539 U.S. 244, 275 (2003) (holding an automatic “plus” to an applicant’s
file based on race violates the Equal Protection Clause, Title VII, and § 1981).
103. Grutter v. Bollinger, 539 U.S. 306, 337–38 (2003) (holding the
University of Michigan Law School’s admission policy of considering race as
permissible because the plan was flexible and each applicant was considered
individually).
14
2012]
Foreword
achieve so-called critical mass diversity at the school,104 whereas
the undergraduate college, facing a much larger applicant pool
that made such an approach unrealistic, had the temerity to
actually award points for various racial and ethnic backgrounds.105 The latter offended the sensibilities of the good
Justice, who cast the deciding vote to strike it down.106 The
former was found by her to pass constitutional muster, however,
under the most deferential version of strict scrutiny ever applied
by the Court, albeit with the expectation that the rationale used
to uphold the racial preference had a shelf-life of only twenty-five
years.107 Well, we are nearing the half-way mark on that time
clock, but Abigail Fisher decided she could not wait.108 She
wanted acceptance to the University of Texas at Austin now,
during her formative college years rather than waiting until she
was thirty or thirty-five (go figure). And she wanted to be judged
by the content of her character and the grades she had earned,
not by the color—or lack of color—in her skin.109 Texas stood its
ground in defense of its race-based admissions policy that went
even further than Michigan’s, seeking to ensure diversity not just
at the University as a whole, but in every classroom and program
(except, undoubtedly, in its football and basketball programs,110
but I digress).111 In the interim, of course, Justice Alito has
replaced Justice O’Connor, and he has already demonstrated that
he is less persuaded than she was by the argument that the
constitutional guarantee of equal protection for all persons allows
104.
105.
106.
107.
108.
Id. at 337–38.
Gratz, 539 U.S. at 255.
See id. at 276–80 (O’Connor, J., concurring).
Grutter, 539 U.S. at 342–43.
See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 217 (5th Cir. 2011),
cert. granted, 132 S. Ct. 1536 (Feb. 21, 2012) (No. 11-345).
109. Id.
110. See UNIV. OF TEXAS: 2012 FOOTBALL ROSTER, http://www.mackbrowntexasfootball.com/sports/m-footbl/mtt/tex-m-footbl-mtt.html (roster includes
sixty-one African-American players, fifty-two non-Hispanic white players
(including, perhaps, some of Mediterranean and Middle-Eastern descent), only
three players (a mere 2.5%) with Hispanic surnames, and none with surnames
indicating an Asian-American or Native-American heritage); see also 2012-13
MEN’S BASKETBALL ROSTER, UNIV. OF TEXAS, http://www.texassports.com
/sports/m-baskbl/mtt/tex-m-baskbl-mtt.html.
111. Fisher, 631 F.3d at 217–18.
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some to be given favorable treatment, and others unfavorable
treatment, in college admissions merely because of the color of
their skin.112 Whether the Court upholds Texas’s policy under
Grutter, invalidates it by distinguishing Grutter, or outright
overrules Grutter and restores a more vibrant strict scrutiny to
its place in the Equal Protection pantheon is the subject of the
Article by Joshua Thompson and Adam Pomeroy of the Pacific
Legal Foundation.
So what’s left to discuss? Oh, yes. The Chief Justice’s opinion
in the Obamacare case.113 My purpose here is not to give a full
analysis of the opinion’s reasoning, but to address the speculation
that the Chief Justice appears to have switched his vote sometime after the initial court conference on the case, and after the
President of the United States launched an unprecedented attack
against the Court, claiming that the Court would be exceeding its
constitutional role if it invalidated an act of the Congress.114
Even before Jan Crawford, a highly regarded Supreme Court
reporter for CBS News, published her explosive piece claiming,
based on “two sources with specific knowledge of the [Court’s
internal] deliberations,”115 that Roberts switched his vote, there
were telltale signs in the opinions themselves strongly indicating
that a “switch in time” had indeed occurred. The dissenting
opinion by Justices Scalia, Kennedy, Thomas, and Alito is
unsigned, for example—an unusual thing.116 It refers to Justice
Ginsburg’s concurring opinion as a “dissent.”117 It expends a con-
112. Ariane de Vogue, Affirmative Action—Could Justice Alito’s Vote
Change the Game, ABC NEWS (Feb. 15, 2012, 9:01 AM), http://www.abcnews.
go.com/blogs/politics/2012/02/affirmative-action-could-justice-alitos-vote-changethe-game/.
113. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___, 132 S. Ct. 2566
(2012).
114. Jeff Mason, Obama Takes a Shot at Supreme Court Over Healthcare,
REUTERS, Apr. 2, 2012, http://www.reuters.com/article/2012/04/02/us-obamahealthcare-idUSBRE8310WP20120402; Laura Meckler & Carol E. Lee, Obama
Warns Supreme Court, WALL ST. J. , Apr. 3, 2012, http://online.wsj.com/
article/SB10001424052702304023504577319944075184350.html.
115. Face the Nation, (CBS News television broadcast July 1, 2012),
available at http://www.cbsnews.com/8301-3460_162-57464549/robertsswitched-views-to-uphold-health-care-law/.
116. Sebelius, 567 U.S. at ___, 132 S. Ct. at 2642 (Scalia, J., dissenting).
117. Id. at ___, 132 S. Ct. at 2648.
16
2012]
Foreword
siderable amount of ink responding to Justice Ginsburg’s
“dissent,” yet not a drop responding to the Chief Justice’s opinion
announcing the judgment of the Court.118 It is written as though
it were the majority opinion, using phrasings such as: “[t]hat
clear principle carries the day here;”119 “[n]either theory [offered
by the Government] suffices to sustain [the] validity” of the
individual mandate;120 “we cannot rewrite the statute to be what
it is not;”121 “the nail in the coffin;”122 etc. In addressing the
taxing power issue that turned out to be dispositive for the Chief
Justice, it repeatedly refers to the Government’s alternative
argument rather than the Chief Justice’s holding for the Court,
with only an oblique reference—“and those who support its view
on the tax point”123—to suggest that this point actually carried
the day for the Chief Justice.124 Finally, and most conclusively,
the opinion’s discussion of the tax issue concludes with this:
[R]ewriting [the individual mandate] as a tax in order to
sustain its constitutionality would force us to confront a
difficult constitutional question: whether this is a direct tax
that must be apportioned among the States according to their
population. Perhaps it is not (we have no need to address the
point)[.]125
Similarly, the beginning of the discussion in the next section
of the opinion, discussing whether the Court would lack jurisdiction under the Anti-Injunction Act to even hear the case if the individual mandate was really a tax, includes this: “Having found
that [the minimum-coverage provision] is not [a tax], we have no
difficulty in deciding that these suits [are not barred by the AntiInjunction Act].”126
These are truly extraordinary statements. The use of the sub-
118.
119.
120.
121.
122.
123.
124.
125.
126.
See id. at ___, 132 S. Ct. at 2648–50.
Id. at ___, 132 S. Ct. at 2643.
Id. at ___, 132 S. Ct. at 2644.
Id. at ___, 132 S. Ct. at 2651.
Id. at ___, 132 S. Ct. at 2655.
Id. at ___, 132 S. Ct. at 2652.
See id. at ___, 132 S. Ct. at 2642–77.
Id. at ___, 132 S. Ct. at 2655 (citations omitted).
Id. at ___, 132 S. Ct. at 2656.
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junctive tense, “would force us to confront,”127 and even more
clearly, the parenthetical phrase, “we have no need to address
the point,”128 and the “having found” phrase in the next
section,129 all indicate, quite strongly, that the Court had rejected
the Government’s contention that the individual mandate could
alternatively be upheld under Congress’s taxing power. And yet,
that is precisely the ground upon which the Chief Justice upheld
the statute.130 The subjunctive tense, the parenthetical, and the
“finding” are nevertheless left in the opinion, punctuated by what
appears to be a couple of phrases added after the original draft as
though to highlight the dissenters’ pique at what had transpired.
“[P]erhaps because, until today, no federal court has accepted the
implausible argument” seems to have been added after “[t]he
Government’s opening brief did not even address the question,”
for example.131 And the concluding sentence of the section is the
only one in the whole opinion that actually reads like a vintageScalia dissent: “One would expect this Court to demand more
than fly-by-night briefing and argument before deciding a
difficult constitutional question of first impression.”132 Fly by
night indeed.
Other evidence of a switch includes the fact that Justice
Ginsburg’s concurring opinion reads almost entirely like a
dissent.133 And a fairly strident one at that, even bringing out
that old bug-a-boo, Lochner v. New York.134 Only at the very end
of the discussion, as if an afterthought, does she add a paragraph
and footnote acknowledging that she concurred because “[u]ltimately, the Court upholds the individual mandate as a proper
exercise of Congress’ power to tax and spend.”135 That is certainly
not the norm in tone or substance for an opinion agreeing with
the outcome of the case, and certainly not one agreeing with the
127.
128.
129.
130.
131.
132.
133.
134.
Id. at ___, 132 S. Ct. at 2655.
Id.
Id. at ___, 132 S. Ct. at 2656.
See id. at ___, 132 S. Ct. at 2601.
Id. at ___, 132 S. Ct. at 2655.
Id.
See id. at ___, 132 S. Ct. at 2609–42 (Ginsburg, J., concurring).
Id. at ___, 132 S. Ct. at 2629; Lochner v. New York, 198 U.S. 45 (1905)
overruled in part by Ferguson v. Skrupa, 372 U.S. 726 (1963).
135. Id.
18
2012]
Foreword
outcome of the most significant case to reach the Court in
decades.
The Chief Justice’s opinion is itself uncharacteristically weak
at critical points, even contrived. The Constitution authorizes
Congress to raise taxes,136 but they must originate in the House
of Representatives,137 as this law did not. That constitutional
process of taxes is important. It insures that our lawmakers are
accountable to the people for their actions (the unaccountability
of the King and Parliament for imposing taxes on the colonists
was the principal reason we had a revolution). The requirement
that tax measures originate in the House was designed because
the House is most directly accountable to the people. Its members
have to face the voters every two years (rather than every six, as
in the Senate), which is a pretty serious political check on raising
taxes.138 The House originally proposed to pass the Affordable
Care Act as a tax, but it failed.139 It was the Senate that introduced the mandate/penalty language that ultimately became
law.140 The opinion does not even address that potential
infirmity, or whether the Senate’s manipulative “gut and amend”
use of an existing House bill having nothing to do with health
care as the vehicle for introducing its tax was sufficient to meet
the Constitution’s mandate.
More significant, though, is the Chief Justice’s weak
discussion of the critical direct tax issue. The Constitution authorizes Congress to impose several kinds of taxes,141 but each comes
with its own limitations. Imposts, excises, and duties, for
example, must be uniform, and the individual mandate’s
penalty/tax has none of the attributes of any of them.142 Direct
taxes, on the other hand, can be levied directly on individuals as
the individual mandates penalty/tax is, but Article I, Section 9,
Clause 4 of the Constitution requires that such taxes be appor136.
137.
138.
139.
U.S. CONST. art. I, § 8, cl. 1.
U.S. CONST. art. I, § 7, cl. 1.
U.S. CONST. art. I, § 2, cl. 1.
See generally Emily Smith, Timeline of the Health Care Law, CNN
(June 28, 2012, 10:42 AM), http://www.cnn.com/2012/06/28/politics/supremecourt-health-timeline/index.html.
140. Id.
141. U.S. CONST. art. I, § 8, cl. 1.
142. Id.
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tioned by State according to population.143 This one is assuredly
not so apportioned.
How does Chief Justice Roberts address this problem? Well,
he ducks it. In a great bit of circular reasoning, he contends that
the tax is not a direct tax because it doesn’t apply to everyone, as
the Constitution requires.144 But that says nothing about
whether it is a direct tax or not; it merely admits that if this is a
direct tax, it is unconstitutional.
So I think the evidentiary record demonstrates, or at least
raises a strong presumption, that the Chief Justice switched his
vote sometime after the initial conference. The next question is,
“Why?” It is not common, but not rare either, for a Justice to
switch his vote after the initial conference.145 Those initial votes
are tentative only, and the final disposition comes after opinions
are drafted, circulated, and their legal reasoning is given full
consideration. Sometimes, the strength of another Justice’s draft
opinion is persuasive enough to garner additional votes (or,
conversely, weak enough to lose votes). But this vote switch, if
indeed one occurred, could not have been caused by a
persuasively-reasoned opinion by one of the other Justices, as the
other opinions barely mention, must less persuasively argue, the
tax authority point.
It is also possible that the Chief Justice, upon further review
of the briefs in the case and the discussion at oral argument,
came around to the tax argument. That, too, seems implausible,
given the utter paucity of discussion in either the briefs or the
oral argument about the issue. As the joint dissent noted, the
issue was not even raised in the government’s opening brief;146 it
garnered only twenty-one lines of discussion in the reply brief,147
and occupied only a few minutes of time out of the six and a half
143. U.S. CONST. art. I, § 2, cl. 4.
144. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___, ___, 132 S. Ct.
2566, 2599 (2012).
145. See generally, Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time
Save Nine, 2 J. OF LEGAL ANALYSIS 69 (2010).
146. Sebelius, 567 U.S. at ___, 132 S. Ct. at 2655.
147. Reply Brief for Petitioners (Minimum Coverage Provision) at 24–25,
Dep’t of Health & Human Servs. v. Florida, 567 U.S. ___, 132 S. Ct. 2566 (2012)
(No. 11-398).
20
2012]
Foreword
hours of oral argument devoted to this case.148 That is hardly the
stuff that would cause a Chief Justice of the United States to be
persuaded to change his vote.
An alternative explanation is both more plausible and more
troubling. After the President threatened to put the Court into
the cross-hairs of a contentious political campaign,149 perhaps the
Chief Justice went out of his way to craft a rationale by which he
could uphold what he believed to be an unconstitutional act of
Congress. If that is indeed what happened, then the Chief
Justice’s motive was to prevent the Court from being “politicized”
and its legitimacy undermined. But the fact that this switchedvote scenario is so evident from the opinions themselves, and
confirmed by extraordinary leaks from within the Court, means
that his vote switch yielded just the opposite of what was
intended.
The Court is structurally designed to be independent of the
political processes so that it can withstand political pressure and
faithfully uphold the Constitution when confronted with assertions of power that exceed the Constitution’s authority. As the
great Chief Justice John Marshall recognized more than two
centuries ago in Marbury v. Madison, it is “the very essence of
judicial duty,”150 the reason a “judge swear[s an oath] to
discharge his duties agreeably to the constitution,”151 that the
judge must find “that a law repugnant to the constitution is
void.”152 Then again, in McCulloch v. Maryland, he added:
“[S]hould Congress, under the pretext of executing its powers,
pass laws for the accomplishment of objects not entrusted to the
government; it would become the painful duty of this tribunal . . .
to say, that such an act was not the law of the land.”153
So did the Chief Justice initially accept the argument that
Congress could impose the individual mandate as a tax? Or was
he persuaded to that position after tentatively voting to find the
148. See Transcript of Oral Argument at 55, Sebelius, 567 U.S. ___, 132 S.
Ct. 2566 (2012) (No. 11-393).
149. Meckler & Lee, supra note 114.
150. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
151. Id. at 180.
152. Id.
153. McCulloch v. Maryland, 17 U.S. (1 Wheat.) 316, 423 (1819).
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Act unconstitutional? Or did the Chief Justice of the United
States shy away when confronted with the painful duty that the
Constitution assigns uniquely to the Justices of the Supreme
Court? We will undoubtedly be debating that point for many
years to come.
22
NUREMBERG-ERA JURISPRUDENCE REDUX:
THE SUPREME COURT IN KIOBEL V. ROYAL
DUTCH PETROLEUM CO. AND THE LEGAL
LEGACY OF NUREMBERG
Michael Bazyler* and Jennifer Green**
I.
II.
III.
IV.
INTRODUCTION ................................................................. 24
CONFLICTS IN THE COURTS: THE DEBATES
OVER NUREMBERG-ERA JURISPRUDENCE AND
CORPORATE ACCOUNTABILITY ..................................... 28
GERMAN CORPORATE COMPLICITY IN NAZI
WAR-MAKING AND ACTIONS TAKEN AGAINST
GERMAN CORPORATIONS UNDER
INTERNATIONAL LAW ...................................................... 40
A. Juridical Persons Were Included in Nuremberg-era
Jurisprudence from the London Charter Through
the Trials ........................................................................ 41
B. The Basis for Allied International Legal Actions
Against Corporations ..................................................... 43
C. Legal Action Taken Against I.G. Farben and Its
Officers ............................................................................ 48
D. Legal Actions Against Other German Corporations
and Their Corporate Officers ........................................ 52
E. Realpolitik and the Cold War ........................................ 58
CONCLUSION...................................................................... 59
Michael Bazyler is a Professor of Law and the “1939” Club Law Scholar in
Holocaust and Human Rights Studies at Chapman University School of Law.
Professor Bazyler served as Counsel for Amici Curiae on behalf of the
Nuremberg Scholars in support of the Petitioners in the pending U. S. Supreme
Court decision of Kiobel v. Royal Dutch Petroleum Co.
** Jennifer Green is an Associate Professor and Director of Human Rights
Litigation and International Advocacy Clinic at the University of Minnesota
Law School. Professor Green served as Counsel of Record for Amici Curiae on
behalf of Nuremberg Scholars in support of Petitioners in the pending decision
of Kiobel v. Royal Dutch Petroleum Co. The authors thank the 17 scholars we
had the privilege to work with on the amicus curiae brief as well as amici cocounsel Judith Chomsky and Beth Stephens and University of Minnesota law
students Astrid Brouillard, Kayleigh Brown, Sallie Dietrich, and Laura Matson
for their invaluable assistance.
*
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I. INTRODUCTION
On February 28, 2012, the United States Supreme Court
heard oral argument on the question of whether corporations
could be liable for human rights abuses under the Alien Tort
Statute,1 but instead of deliberating and then issuing a decision,
the Court asked the parties to file another round of briefs, and
then return on the first day of the next term to argue the case a
second time.2
The case, Kiobel v. Royal Dutch Petroleum Co., involves
Nigerian plaintiffs suing the multinational Shell corporation for
its alleged role in a pattern of universally condemned human
rights violations committed in the 1990s in Nigeria.3 The Court
will consider whether, and under what circumstances, foreign
citizens have a right to file civil suits for monetary damages in
United States federal courts for human rights violations
committed overseas.4 The jurisdictional basis for such suits is
found in a federal statute enacted by the First Congress of the
United States.5 The law is commonly known today as the Alien
1. Transcript of Oral Argument, Kiobel v. Royal Dutch Petrol. Co., 565
U.S. ___, 132 S. Ct. 472 (2011) (No. 10-1491) (argued Feb. 28, 2012).
2. Order for Reargument, Kiobel v. Royal Dutch Petrol. Co., 565 U.S. ___,
132 S. Ct. 1738 (2012) (No. 10-1491).
3. Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 565 U.S. ___, 132 S. Ct. 472 (2011), reh’g granted 565 U.S. ___, 132 S.
Ct. 1738 (2012) (No. 10-1491).
4. Order for Reargument, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 101491).
5. 28 U.S.C. § 1350 (2006), originally enacted as part of the Judiciary Act
of 1789, ch. 20, § 9, 1 Stat. 73, 77; see also Supplemental Brief of Amici Curiae
Professors of Legal History William R. Casto, Charles Donahue, Robert W.
Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, Jenny S. Martinez,
James Oldham, and Anne-Marie Slaughter in Support of Petitioners, Kiobel,
565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (arguing that the ATS was intended
to reach beyond the territory of the United States); Amicus Brief of the
American Civil Liberties Union on Reargument in Support of Petitioners,
Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (arguing that the
presumption against extraterritoriality does not apply to the ATS);
Supplemental Brief of Amici Curiae International Law Scholars in Support of
Petitioners, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (arguing that
international law does not bar the ATS from providing a domestic remedy for
violations of international law).
24
2012]
Legacy of Nuremberg
Tort Statute (ATS).6 Enacted in 1789, the federal law provides
American federal courts with a specific grant of subject matter
jurisdiction over civil suits filed by aliens; however, the ATS only
applies for those torts that are also violations of treaties or
customary international law, or the term used at the time of the
statute’s enactment, “the law of nations.”7
From its early days, the ATS provided federal courts with
subject matter jurisdiction over such serious international law
violations as piracy.8 For the last thirty-two years, the ATS has
been interpreted to allow foreign victims of such modern-day
internationally recognized human rights violations as torture,
genocide, and crimes against humanity to likewise file suit in the
United States in those instances where the alleged perpetrator
(including foreign citizens) of such violations was physically
located in the United States or had some other significant ties to
justify personal jurisdiction.9 In a federal court decision issued in
1980 allowing such suits, the Second Circuit in Filartiga v. PenaIrala labeled the perpetrator of such abuses as “hostis humani
generis, an enemy of all mankind.”10
While the ATS specifically limits the class of plaintiffs that
can sue under the statute—aliens only—it is completely silent on
the class of defendants that can be sued.11 The Filartiga suit, and
those that immediately followed this decision, involved suits filed
under the ATS against individual defendants, including foreign
citizens,12 and corporations accused of direct or secondary
6. 28 U.S.C. § 1350.
7. Id.
8. Kiobel, 621 F.3d at 125 (citing Sosa v. Alvarez-Machain, 542 U.S. 692,
715 (2004)).
9. See id. at 146 (citing Presbyterian Church of Sudan v. Talisman
Energy, Inc., 582 F.3d 244, 257 n.7 (2d Cir. 2009).
10. 630 F.2d 876, 890 (2d Cir. 1980).
11. 28 U.S.C. § 1350. The ATS also does not contain a limitation on the
physical location of the torts at issue. From the plain language of the statute,
the international law tort violation does not have to be committed in the United
States for the alien to file suit in federal court under the ATS.
12. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Xuncax v.
Gramajo, 886 F. Supp. 162 (D. Mass. 1995); Todd v. Panjaitan, No. 92-12255PBS, 1994 WL 827111 (D. Mass. 1994); Forti v. Suarez-Mason, 672 F. Supp.
1531 (N.D. Cal. 1987).
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responsibility for gross international law violations.13 Kiobel is
one of such ATS corporate defendant suits, and the case initially
went to the Supreme Court on the question of whether
corporations could be sued under the ATS.14
In deciding this question, federal courts are bound by the
specific language of the ATS, which limits suits under the statute
to those torts that are recognized as violations of customary
international law.15 In deciding potential civil liability of
corporations under the ATS, four federal appellate courts looked
for guidance in the international jurisprudence established at the
conclusion of the Second World War with regard to the actions
taken against German industrialists and German corporations
by the victorious Allies in occupied Germany.16 Specifically, the
courts looked to the decisions of the International Military
Tribunal at Nuremberg (IMT) from 1945 to 1946 during its trial
of the so-called Major War Criminals, and the subsequent
Nuremberg Military Tribunals (NMT) trials of lower-ranking
Nazis conducted by the Americans in Nuremberg and by France,
the United Kingdom and the Soviet Union in their respective
zones of occupied Germany.17 Three of the ATS decisions also
examined the postwar Allied actions against specific German
corporations taken outside courtrooms but still pursuant to
13. In 1989, the Supreme Court heard an ATS suit filed against a foreign
state. Amerada Hess v. Argentine Republic, 488 U.S. 428 (1989). The Court
held that the ATS does not provide subject matter jurisdiction over such suits.
Id. at 440–43. Instead, the Court held that the sole grant of subject matter
jurisdiction over suits against foreign states (and its political subdivisions and
agencies and instrumentalities, including foreign government-owned
corporations) is the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330
(2006). Amerada Hess, 488 U.S. at 438.
14. See Petition for Writ of Certiorari, Kiobel v. Royal Dutch Petrol. Co.,
565 U.S. ___, 132 S. Ct. 472 (2011) (No. 10-1491).
15. See Sosa v. Alvarez-Machain, 542 U.S. 692, 730–31 (2004).
16. See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 758 (9th Cir. 2011); Flomo v.
Firestone Natural Rubber Co., LLC, 643 F.3d 1013, 1017 (7th Cir. 2011); Doe v.
Exxon Mobil Corp., 654 F.3d 11, 30 (D.C. Cir. 2011); Kiobel v. Royal Dutch
Petrol. Co., 621 F.3d 111, 132–36 (2d Cir. 2010); cert. granted, 565 U.S. ___, 132
S. Ct. 472 (Oct. 17, 2011), reh’g granted, 565 U.S. ___, 132 S. Ct. 1738 (Mar. 5,
2012) (No. 10-1491).
17. See, e.g., Sarei, 671 F.3d at 761, 767, 772–74; Flomo, 643 F. 3d at 1017;
Exxon, 654 F.3d at 30, 35, 49, 52, 83; Kiobel, 621 F.3d at 126–27, 132–36.
26
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Legacy of Nuremberg
international law.18 These actions included dissolution, the
seizure of the corporations’ assets, and the use of those assets to
pay reparations.19
Examining the body of international law that came out of
actions taken by the Allies in occupied Germany, the lower
federal courts came to differing conclusions. Three of the four
appellate courts reached, we believe, the correct conclusion that
corporations are not immune from liability under international
law.20 One appellate and one district court, however, reached
what we believe is an erroneous conclusion: that corporations
cannot be sued under international law.21
As we show, the most important legal legacy of Nuremberg is
the principle that for legal accountability for those who commit
war crimes, crimes against humanity, and genocide, no one—
whether a natural or legal person—is beyond the reach of the
law. Such a principle must necessarily mean that when
corporations are proven to be involved in universally-condemned
international law violations, they cannot escape liability.
The corpus of international law that came out of the Allied
occupation of defeated Nazi Germany is not just limited to the
decisions of the tribunals in the courtrooms at the Palace of
Justice in Nuremberg and in other courtrooms throughout
occupied Germany. A basic truism of international law is that it
is not just made by international courts. As such, many of the
international law principles that came from this immediate
postwar occupation era emanated not only from the decisions of
American, British, French and Soviet judges holding trials in
occupied Germany, but also from the acts conducted by the Allies
outside of the German courtrooms.22 Because of the
interrelationship between the IMT trial in the American-
18. See Sarei, 671 F.3d at 761. Flomo, 643 F. 3d at 1017; Exxon, 654 F.3d
at 52, 52 n.42;
19. See generally Arrangements for Control of Germany by Allied
Representatives, U.S.-Gr. Brit.-France-U.S.S.R., Sept. 20, 1945, reprinted in 40
AM. J. INT’L L. 1, 23–27 (Supp. 1946) [hereinafter Arrangements for Control].
20. See Sarei, 671 F.3d at 748; Flomo, 643 F.3d at 1025; Exxon, 654 F.3d at
41.
21. See Kiobel, 621 F.3d. at 145; Doe v. Nestlé, 748 F. Supp. 2d 1057, 1116–
18, 1145 (C.D. Cal. 2010).
22. See Exxon 654 F.3d at 52 n. 42.
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[VolumeVII
occupied city of Nuremberg, the subsequent Nazi war crimes
trials in the four occupied zones, and other actions taken by the
Allies we call this corpus of international law—made both inside
and outside the courtrooms of occupied Germany—“Nurembergera jurisprudence” (NEJ). As we show, taking into account all of
NEJ, its legacy is that corporations are not immune under
international law.
This essay will discuss the intersection of NEJ and the ATS,
and their particular convergence in Kiobel. Part II sets out the
dispute among the lower courts over NEJ, corporate accountability, and the differing views presented to the Supreme Court
by various amici. Part III discusses German corporate complicity
in Nazi war-making and the Holocaust, as well as the actions
taken by the Allies under international law against German
corporations.
II. CONFLICTS IN THE COURTS: THE DEBATES OVER
NUREMBERG-ERA JURISPRUDENCE AND CORPORATE
ACCOUNTABILITY
The ATS originated in the early days of the United States
and is part of the First Judiciary Act of 1789.23 It is a simple
statute that provides: “The district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States.”24
As mentioned earlier, while the language of the statute limits
the categories of plaintiffs to aliens only, there are no limitations
about categories of defendants or the physical location of the
torts at issue.25 After a number of suits under the ATS in the
early years of the American Republic, the statute was little used
and reappeared in a dramatic way in 1979 with a case titled
Filartiga v. Pena-Irala filed in federal district court in
Brooklyn.26 The Filartiga suit involved a Paraguayan family
23. See generally BETH STEPHENS, ET AL., INTERNATIONAL LITIGATION
UNITED STATES COURTS 1–72 (2d ed. 2008).
24. 28 U.S.C. §1350 (2006).
25. See id.
26. Filartiga v. Pena-Irala, 630 F.2d 876, 876 (2d Cir. 1980).
28
IN
2012]
Legacy of Nuremberg
suing a former Paraguayan police official who tortured Joelito
Filartiga, their son and brother, to death; the police official then
fled Paraguay.27 The family located the police official living in
New York.28 The district court dismissed the suit, but the Second
Circuit reversed.29 In its decision, the Second Circuit held that
the Paraguayan family could sue the Paraguayan defendants
because, “for purposes of civil liability, the torturer has become
like the pirate and slave trader before him hostis humani
generis, an enemy of all mankind.”30
The court in Filartiga reasoned that international law was
part of the law of the United States, citing Supreme Court cases
going back nearly a century,31 and laid out a careful test for the
violations of the law of nations, or customary international law,
that could be brought under the ATS.32
This decision then led to a small number of cases in federal
courts in which foreign victims of torture and other universally
accepted human rights violations sued foreign state actors under
the ATS.33 The majority of state officials sued were former
government officials no longer in power and residing in the
United States.34
In 1995, the Second Circuit in Kadic v. Karadzic provided a
detailed analysis of why defendants in ATS human rights cases
could include non-state actors.35 In Kadic, Bosnian Muslim and
Croat plaintiffs brought two lawsuits under the ATS against
27.
28.
29.
30.
31.
Id. at 878.
Id. at 878–79.
Id. at 880.
Id. at 890.
See id. at 886–87 (citing The Paquete Habana, 175 U.S. 677, 682
(1900)).
32. See id. at 889.
33. See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (former
Guatemalan general living in Massachusetts sued for torture by his victim);
Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (former Haitian dictator living
in Florida sued for torture); Forti v. Suarez Mason, 672 F. Supp. 1531 (N.D. Cal.
1987) (Argentine general living in California sued by the son of a woman who
died from torture during the “dirty war” years in Argentina).
34. See Xuncax, 886 F. Supp. at 162; Paul, 901 F. Supp. at 330; Forti, 672
F. Supp. at 1531.
35. 70 F.3d 232 (2d Cir. 1995).
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Radovan Karadzic, the self-proclaimed Bosnian Serb leader.36
Karadzic was sued for genocide, war crimes, and crimes against
humanity in the former Yugoslavia,37 the same charges that he is
now being criminally prosecuted for at The Hague before the
International Criminal Tribunal for the Former Yugoslavia.38
Karadzic was served with court papers when he was in New
York,39 reportedly to raise money and generate public support for
the Bosnian Serb military campaign against Bosnian Muslims
and Bosnian Croats living in the former Yugoslavia. In 1995, the
Second Circuit ruled that non-state actors like Karadzic could be
sued under the ATS for human rights violations for which there
was no state action requirement in international law or which
were undertaken in complicity with government actors.40
In 1997, the Central District of California applied the Kadic
analysis to a case against a corporation.41 In Doe v. Unocal Corp.,
the California-based Unocal oil company was sued by Burmese
plaintiffs and charged with forced labor, rape, and other human
rights violations committed in Burma in connection with
Unocal’s joint venture pipeline project that it had entered into
with, among others, the repressive Burmese military government.42 In the 1997 decision, the court rejected defendants’
motion to dismiss plaintiffs’ claims that Unocal officials involved
in the project were aware of gross human rights abuses being
committed by the Burmese military and also knowingly provided
assistance to the military in its commission of such abuses.43
In 2004, the Supreme Court finally weighed in on ATS
litigation when it granted certiorari and heard an ATS suit
brought by a Mexican doctor who was kidnapped and forcibly
36. Id. at 237.
37. Id.
38. Prosecutor v. Karadzic, Case No. IT-95-5, Int’l Crim. Trib. for the
Former Yugoslavia, available at http://www.icty.org/case/karadzic/4.
39. Kadic v. Karadzic, 70 F.3d 232, 237 (2d Cir. 1995).
40. Id. at 250.
41. Doe v. Unocal Corp., 963 F. Supp. 880, 890 (C.D. Cal. 1997), aff’d in
part, rev’d in part, 395 F.3d 932 (9th Cir. 2002), vacated on other grounds, 403
F.3d 708 (9th Cir. 2005).
42. Id. at 885.
43. Id. at 885, 896 (outlining plaintiffs’ claim that Unocal knew of the
human rights abuses).
30
2012]
Legacy of Nuremberg
brought to the United States by private Mexican citizens hired by
Drug Enforcement Administration personnel to kidnap him.44 In
Sosa v. Alvarez-Machain, the Court upheld the Filartiga line of
cases but limited such suits to international law torts that today
have the same level of universal acceptance as those that the
first Congress recognized in 1789, when it enacted the ATS.45
During the appeal, various amici representing a number of U.S.
corporations filed briefs seeking to limit the liability of
corporations, arguing that the ATS cases disrupted U.S. trade
and foreign policy.46 In its Sosa decision, the Supreme Court
chose not to address the question of corporate liability.47
Cases against foreign civilian, military, and paramilitary
officials and also multinational corporations continued in the
lower courts.48 In the majority of the cases, the defendants
argued—with some success—that the suits against them should
be dismissed by finding no personal jurisdiction over the
defendant, by the availability of a foreign forum over the suit
(therefore triggering dismissal under the common-law doctrine of
forum non conveniens), on the grounds that the question
presented is better suited for one of the other branches of the
U.S. government (political question doctrine), or that the case
interfered with the legal authority of a foreign government (act of
state or comity grounds).49
44. Sosa v. Alvarez-Machain, 542 U.S. 692, 698 (2004).
45. Id. at 724–25.
46. See, e.g., Brief for the Nat’l Ass’n of Mfrs. as Amicus Curiae in Support
of Reversal, Sosa, 542 U.S. 692 (2004) (No. 03-339).
47. See Sosa, 542 U.S. 692.
48. See Victims of Hungarian Holocaust v. Hungarian State Rys., 798 F.
Supp. 2d 934 (N.D. Ill. 2011), vacated sub nom, Abelesz v. Magyar Nemzeti
Bank, No. 11-2387, 2012 WL 3590804 (7th Cir. Jan. 11, 2012) (Holocaust
survivors and heirs can proceed with suit against Hungarian banks and the
Hungarian national railway alleging that banks and railway participated in
expropriation of Jewish property); Doe v. Constant, 354 F. Appx. 543 (2d Cir.
2009) (ruling against Haitian paramilitary leader for rape as a crime against
humanity); Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) (holding Haitian
military leader, living in Florida for years, responsible for killings and other
abuse in Haiti in 1990s); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997),
aff’d in part, rev’d in part, 395 F.3d 932 (9th Cir. 2002), vacated on other
grounds, 403 F.3d 708 (9th Cir. 2005) (case settled 2005).
49. See Brief of Professors of Civil Procedure and Fed. Courts as Amici
Curiae on Reargument in Support of Petitioners, Kiobel v. Royal Dutch Petrol.
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In the small number of cases that survived all of these
hurdles, NEJ was an important source, particularly in cases
involving claims of genocide, war crimes and crimes against
humanity,50 and in cases involving secondary liability such as
aiding and abetting liability, where the courts looked to what the
judges at Nuremberg had to say about the issue.51
U.S. courts have allowed cases to proceed against
corporations only where plaintiffs brought allegations of specific
corporate involvement in the abuse; it has never been sufficient
for businesses merely to be doing business in countries with poor
human rights records.52
Co., 565 U.S. ___, 132 S. Ct. 1738 (2012) (No. 10-1491).
50. See, e.g., Unocal Corp, 963 F.Supp. 880.
51. See, e.g., Sarei v. Rio Tinto, P.L.C., 671 F.3d 736, 761 (9th Cir. 2011);
Wiwa v. Royal Dutch Petrol. Co., 626 F. Supp. 2d 377, 384 (S.D.N.Y. 2009).
Aiding and abetting liability is not before the Supreme Court in Kiobel,
although defendants and several of their amici have raised the issue. See, e.g.,
Brief of the Nat’l Foreign Trade Council et al. as Amici Curiae Supporting
Respondents, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491). A question
now in the lower courts centers on whether a mens rea of knowledge or purpose
is required for the courts to find defendants liable for human rights abuses. The
authors are amici for fifteen scholars setting forth a detailed analysis of the
mens rea standard of knowledge applied by the Nuremberg Tribunal cases
involving aiding and abetting liability. Brief of Amici Curiae Nuremberg
Scholars Omer Bartov, et al. in Support of Plaintiffs-Appellants Seeking
Reversal, Doe v. Nestlé, No. 10-56739 (9th Cir. July 1, 2011) [hereinafter
Scholars’ Brief]; see also Brief for John Ruggie et al. as Amici Curiae Supporting
Neither Party at 14, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491)
[hereinafter Brief for John Ruggie] (criticizing the purpose standard for mens
rea; these experts state: “[A]s long as an I.G. Farben intended only to make
money, not to exterminate Jews, [the Talisman standard] would make it
permissible for such a company to keep supplying the government with massive
amounts of Zyklon B poison gas knowing precisely what it was used for.”).
52. See, e.g., Unocal Corp., 963 F. Supp. 880; Abdullahi v. Pfizer, 562 F.3d
163, 169–70 (2d Cir. 2009) (alleging direct liability for Pfizer’s medical
experimentation on Nigerian children without their parents’ consent; eleven
children died and many others were left blind, deaf, paralyzed or braindamaged); Doe v. Exxon Mobil Corp., 654 F.3d 11, 15–16 (D.C. Cir. 2011)
(charging Exxon with paying, equipping and training soldiers who allegedly
violated plaintiffs’ rights); In re Chiquita Brands Int’l, 792 F. Supp. 2d 1301,
1307–08, 1359 (S.D. Fla. 2011) (ATS claims pending in case for torture and
extrajudicial killing of plaintiffs and family members by Colombian
paramilitary; case brought after Chiquita pled guilty to U.S. government
charges of “prolonged, steady, and substantial support” to Colombian
paramilitary organization).
32
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Legacy of Nuremberg
On September 8, 2010, Judge Stephen Wilson of the Central
District of California dismissed a suit against the multinational
corporation, Nestlé, on the ground that corporations cannot be
liable under international law.53 Judge Wilson reasoned that the
ATS requires that the tort for which a suit is filed must be in
violation of international law.54 He then looked back at the court
decisions at Nuremberg to see whether German corporations
were prosecuted by the Allies in occupied Germany55 and held
that the international law rules emanating from the Nuremberg
tribunals only provided liability for natural persons. According
to Judge Wilson, any discussion by the tribunals of criminal
liability of Nazi organizations or German corporations was
merely a means to reach the individuals who worked for the
organizations or corporations.56
Nine days later, on September 17, 2010, without briefing or
argument on the question, two judges sitting on the appellate
panel in the Second Circuit for Kiobel came to the same
conclusion as Judge Wilson.57 The majority opinion written by
Judge José Cabranes held that because customary international
law nowhere explicitly permits criminal prosecutions or civil
suits against corporations, no lawsuits could be brought against
corporations under the ATS.58 As a part of that argument, the
Kiobel majority announced that the trials of German
industrialists at Nuremberg, rather than bolster a theory of
corporate accountability, showed that only natural persons could
be punished.59
The majority opinion was strongly criticized by the third
judge on the Kiobel panel, Judge Pierre Leval, who ultimately
agreed with the majority that the suit should be dismissed, but
on other grounds.60 A large portion of his concurring opinion is
53.
54.
55.
56.
57.
Doe v. Nestlé, 748 F. Supp. 2d 1057, 1143–45 (C.D. Cal. 2010).
Id.
Id. at 1134–36.
Id. at 1136.
Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111, 149 (2d Cir. 2011), cert.
granted, 565 U.S. ___, 132 S. Ct. 472 (Oct. 17, 2011), reh’g granted 565 U.S. ___,
132 S. Ct. 1738 (March 5, 2012) (No. 10-1491).
58. Id. at 148.
59. Id.
60. Id. at 145 (Leval, J., concurring).
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devoted to his reasoning for why corporations can be criminally
prosecuted or civilly liable under international law and thereby
subject to civil suit under the ATS. Judge Leval then explained
why the majority decision would lead to pernicious results:
The new rule offers to unscrupulous businesses advantages of
incorporation never before dreamed of. So long as they
incorporate (or act in the form of a trust), businesses will now
be free to trade in or exploit slaves, employ mercenary armies
to do dirty work for despots, perform genocides or operate
torture prisons for a despot’s political opponents, or engage in
piracy—all without civil liability to victims. By adopting the
corporate form, such an enterprise could have hired itself out
to operate Nazi extermination camps or the torture chambers
of Argentina’s dirty war, immune from civil liability to its
victims.61
Plaintiffs filed a petition for en banc review of the panel
decision, which the Second Circuit denied.62 On June 6, 2011, the
Kiobel plaintiffs filed a petition for certiorari to the Supreme
Court.63
Other circuits with ongoing ATS corporate suits weighed in
on the issue, and likewise looked to NEJ to help them decide the
cases before them. In July 2011, two circuits came to the opposite
conclusion of the Second Circuit in Kiobel,64 and interpreted NEJ
very differently than did the Kiobel majority.65 The first opinion,
written by Judge Judith Rogers of the District of Columbia
Circuit in a suit against Exxon arising out of the company’s
responsibility for abuses in Indonesia, held that NEJ supported
corporate liability.66 In her analysis, Judge Rogers did not just
focus on the criminal trials in the Palace of Justice at Nuremberg
and the other courtrooms throughout occupied Germany.67
61. Id. at 150 (Leval, J., concurring).
62. Kiobel, 621 F.3d 111, reh’g denied, 642 F.3d 268, reh’g en banc denied,
642 F.3d 379 (2d. Cir. 2011).
63. Petition for Writ of Certiorari, Kiobel v. Royal Dutch Petrol. Co., 565
U.S. ___, 132 S. Ct. 472 (2011) (No. 10-1491).
64. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir.
2011); Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011).
65. Flomo, 643 F.3d at 1013; Exxon, 654 F.3d at 11.
66. Exxon, 654 F.3d at 41.
67. Id. at 31.
34
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Legacy of Nuremberg
Rather, she highlighted the international law norms created by
the Allied Control Council, the multinational body that the Allies
created after their defeat of Hitler, to govern occupied
Germany.68 Specifically, Judge Rogers pointed to Allied Control
Council Law No. 9, dismantling I.G. Farben:
[T]he corporate death penalty enforced against I.G. Farben was
as much an application of customary international law, on
which Control Council Law No. 9 was based, as the sentences
imposed by the tribunals themselves: the Allies determined
that I.G. Farben had committed violations of the law of nations
and therefore destroyed it.69
The D.C. Circuit in Exxon also cited to the liquidation of
other companies pursuant to Control Council Laws Nos. 39, 47,
and 57.70 The D.C. Circuit expanded its analysis by rejecting
defendant Exxon’s “implicit” suggestion “that because the
Nuremberg era did not produce tribunal decisions embodying
disapprobation of corporate atrocities, corporate liability under
the law of nations cannot exist or be ascertained.”71 The court
then noted that under the doctrine on the sources of
international law, the conduct of nations is primary evidence of
international norms, while judicial decisions are merely
secondary evidence.72
The D.C. Circuit also noted that at the time of the
prosecutions of the industrialists at Nuremberg before the NMT,
I.G. Farben had already ceased to exist, and so the Allied
prosecutors’ decision not to charge Farben did not reflect a view
that I.G. Farben had not committed violations of international
law or that other corporations were immune from liability.73
Quoting the Farben decision itself and commentary by former
68.
69.
70.
71.
72.
Id.
Id. at 51–52 (citing Scholars’ Brief, supra note 51, at 11–12).
Id. at 52 n.42.
Id.
Id. (citing Statute of the International Court of Justice art. 38(1)(a),
June 26, 1945, 59 Stat. 1055, 1060, 832 U.S.T.S. 993; JAMES KENT, COMMENTARIES ON AMERICAN LAW 18 (8th ed. 1854); BIN CHENG, GENERAL PRINCIPLES OF
LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 23 (2006)).
73. Id.
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U.S. War Crimes Ambassador David Scheffer, the D.C. Circuit
noted:
The only way that the Nuremberg prosecutors made their cases
against the corporate executives of Farben and Krupp was to
establish that these corporations had violated international
law.” [Ambassador Scheffer] concludes: “The Kiobel majority’s
contention that corporations cannot violate international law
thus flies in the face of common sense, logic, and the reality of
the evidence presented at Nuremberg.”74
A dissenting opinion by Judge Brett Kavanagh relied on the
argument first set out by Judge Wilson in California, and then
adopted by the Second Circuit majority in Kiobel, that “[n]o
corporations were charged or convicted in the Nuremberg trials,
however, even though many corporate executives were
individually tried.”75
Three days after the Exxon decision, the Seventh Circuit
issued a unanimous decision that agreed with the D.C. Circuit
that corporations could be sued for international law violations
under the ATS.76 In a case against the Firestone Corporation for
human rights violations in Liberia, the Seventh Circuit, in an
opinion by Judge Richard Posner, stated:
The factual premise of the majority opinion in the Kiobel case
is incorrect.77 At the end of the Second World War the allied
powers dissolved German corporations that had assisted the
Nazi war effort, along with Nazi government and party
74. Id. at 53 n.43 (internal citations omitted).
75. Id. at 83 (Kavanaugh, J., dissenting in part) (citing Jonathan A. Bush,
The Prehistory of Corporations and Conspiracy in International Criminal Law:
What Nuremberg Really Said, 109 COLUM. L. REV. 1094, 1098 (2009)).
76. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1025 (7th
Cir. 2011).
77. Id. at 1017 (citing Control Council Law No. 2, Providing for the
Termination and Liquidation of the Nazi Organizations (Oct. 10, 1945),
reprinted in 1 ENACTMENTS AND APPROVED PAPERS OF THE CONTROL COUNCIL AND
COORDINATING COMMITTEE 131 (1945), available at http://www.loc.gov/rr/frd/
Military_Law/enactments-home.html (last visited September 25, 2012); Control
Council Law No. 9, Providing for the Seizure of Property Owned by I.G.
Farbenindustrie and the Control Thereof
(Nov. 30, 1945), reprinted in
1 ENACTMENTS AND APPROVED PAPERS OF THE CONTROL COUNCIL AND
COORDINATING COMMITTEE 225, available at http://www.loc.gov/rr/frd/Military_
Law/enactments-home.html (last visited September 25, 2012)).
36
2012]
Legacy of Nuremberg
organizations—and did so on the authority of customary
international law.78
The Ninth Circuit, in Sarei v. Rio Tinto, also found
corporations to be proper defendants under the ATS.79 In an
opinion written by Judge Mary Schroeder, the Sarei court
reasoned: “That an international tribunal has not yet held a
corporation criminally liable does not mean that an international
tribunal could not or would not hold a corporation criminally
liable under customary international law.”80 Again, NEJ was
viewed as critical precedent.81 The court noted that the
prosecutors at the IMT charged not only Hitler’s henchmen, but
also the leading Nazi organizations such as the Geheime
Staatspolizei (Gestapo), Sicherheitsdienst (SD), and the
Schutzstaffeln (SS).82 In their verdict in October 1946, the IMT
judges likewise found these organizations to be guilty by labeling
them as criminal organizations and allowing their
dismemberment.83
The Fourth Circuit also appeared to have sided with the
D.C., Seventh, and Ninth Circuits when in 2011 and 2012 it
allowed two ATS suits against corporations to proceed, though
these decisions did not directly address the question of corporate
liability.84
Meanwhile, on October 17, 2011, the Supreme Court granted
plaintiffs’ petition for certiorari in Kiobel.85 While it is not
unusual for amicus briefs to be filed in decisions to be heard by
the Supreme Court, the sheer quantity of the briefs and the
contested views about NEJ requires us to summarize the
differing views of NEJ by the parties and amici.
78.
79.
80.
81.
82.
83.
84.
Id.
Sarei v. Rio Tinto, P.L.C., 671 F.3d 736, 761 (9th Cir. 2011).
Id.
Id.
Id.
Id.
Al Shimari v. CACI Int’l, Inc., 679 F.3d 205, 223 n.19 (4th Cir. 2012)
(en banc); Aziz v. Alcolac, Inc., 658 F.3d 388, 396 (4th Cir. 2011).
85. Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 565 U.S. ___, 132 S. Ct. 472 (Oct. 5, 2011), reh’g granted, 565 U.S. ___,
132 S. Ct. 1738 (Mar. 5, 2012) (No. 10-1491).
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Eighteen scholars submitted a brief concluding that the
Allies took actions under international law against corporations.86 An amicus brief by the U.S. Departments of State and
Justice stated that “while it is true that no private organization
or corporation was criminally charged or convicted, it is equally
true that nothing in the history of the Nuremberg proceedings
suggests that juridical persons could never be held accountable
(through criminal prosecution or otherwise) for violating
international law.”87 A brief by six scholars argued that the laws
of the Control Council and related bodies were not really law but
rather policy.88 These themes were echoed in other briefs
submitted in support of the defendants or respondents.89
Amicus curiae briefs in support of petitioners discussed the
Nuremberg precedents’ roles in defining war crimes and crimes
against humanity (and that private actors could be held liable for
these violations);90 the difference between criminal prosecution
and civil liability; the relevance of Nuremberg tribunals’
86. See, Proceedings and Orders, Kiobel, No. 10-1491 (2012)
available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/
10-1491.htm.
87. Brief for the United States as Amicus Curiae Supporting Petitioners at
30, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491).
88. Brief for Nuremberg Historians and Int’l Lawyers as Amici Curiae
Supporting Neither Party, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491)
[hereinafter NHIL Brief].
89. See, e.g., Brief for the Ass’n of German Chambers of Indus. &
Commerce et al. as Amici Curiae Supporting Respondents at 7–9, Kiobel, 565
U.S. ___, 132 S. Ct. 1738 (No. 10-1491).
90. See, e.g., Brief for Comparative Law Scholars and French Supreme
Court Justice as Amici Curiae Supporting Petitioners at 30 n.72, Kiobel, 565
U.S. ___, 132 S. Ct. 1738 (No. 10-1491), (stating that “crime against the law of
nations is the ancestor of the crime against humanity of Nuremberg”);
Supplemental Brief for German Inst. for Human Rights and Int’l Law Experts
as Amici Curiae Supporting Petitioners at 16 n.13, Kiobel, 565 U.S. ___, 132 S.
Ct. 1738 (No. 10-1491), (stating that crimes against humanity are recognized by
Nuremberg Charter); Brief for Yale Law School Ctr. for Global Legal
Challenges as Amicus Curiae Supporting Petitioners at 12–13, Kiobel, 565 U.S.
___, 132 S. Ct. 1738 (No. 10-1491). “The prohibition of crimes against humanity
dates from Nuremberg. . . . International criminal jurisprudence dating from
Nuremberg demonstrates that the prohibition of crimes against humanity
includes groups and organizations.” Id. at 26 (citing U.S. v. Krauch, 9 TRIALS OF
WAR CRIMINALS 1449–50 (1950) (“Non-state actors are capable of committing
war crimes.”)).
38
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Legacy of Nuremberg
assessment of corporate activity as a violation of international
law; and standards on aiding and abetting liability.
At the February 28, 2012 Supreme Court argument, the
subject of Nuremberg was raised when defendants’ counsel,
Kathleen Sullivan, asserted that no corporations were prosecuted
at the Nuremberg trials and the main lesson was that
individuals—and not abstract entities—could be held liable for
human rights offenses.91 Justice Ruth Bader Ginsburg responded
by noting that the German corporation I.G. Farben was dissolved
and had its assets seized.92 Sullivan responded that this was a
“political act” and that no corporation was criminally
prosecuted.93 When Justice Ginsburg then noted that there was
no civil liability at Nuremberg, Sullivan stated that the
dissolution of Farben:
[W]as part of denazification, decartelization and the
destruction of the Nazi war machine of which I.G. Farben was
an integral part. It was practically viewed as an enemy state
in and of itself . . . so the precedent of Nuremberg . . . [was to]
exclude liability for corporations, even for the most heinous
offenses of the modern era.94
After argument, the Supreme Court ordered additional briefing
and re-argument on “whether and under what circumstances the
[ATS] allows courts to recognize a cause of action for violations of
the law of nations occurring within the territory of a sovereign
other than the United States.”95 Oral argument on this question
took place on October 1, 2012 and, as of this writing, no decision
has issued.96
91. Transcript of Oral Argument at 35, Kiobel v. Royal Dutch Petrol. Co.,
565 U.S. ___, 132 S. Ct. 472 (2011) (No. 10-1491) (argued Feb. 28, 2012).
92. Id.
93. Id. at 35–36.
94. Id. at 36–37.
95. Order for Reargument, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 101491). Relevant to the Nuremberg legacy, supplemental briefs discussed the
need for accountability for human rights victims and the role of the ATS in an
international system of accountability. See Brief of Amici Curiae Dr. Juan
Romagoza Arce, Cecilia Santos Moran, and Ken Wiwa in Support of Petitioners,
Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (discussing the need for
accountability for human rights victims); Brief of Amicus Curiae Professor
Juan Méndez, U.N. Special Rapporteur on Torture, in Support of Petitioners,
Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (discussing the role of ATS in
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III. GERMAN CORPORATE COMPLICITY IN NAZI WARMAKING AND ACTIONS TAKEN AGAINST GERMAN
CORPORATIONS UNDER INTERNATIONAL LAW
Central to our analysis of the question of whether NEJ allows
corporations to be prosecuted criminally and sued civilly under
international law is the principle stated by Justice Robert
Jackson in his opening address at the IMT trial that no one
(juridical or natural person) is beyond the reach of the law.97 As
international accountability); Brief of Amicus Curiae Navi Pillay, the United
Nations High Commissioner for Human Rights in Support of Petitioners, 565
U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (same). Amicus briefs supporting this
point have also been submitted by legal scholars from South Africa, the
Netherlands, Australia, France and the United Kingdom. See Center for Justice
and
Accountability,
Kiobel
Briefs
and
Resource
Center,
http://cja.org/article.php?list=type&type=509 (last visited Oct. 3, 2012) (listing
amicus briefs filed in Kiobel). Other briefs discussed the positive role ATS cases
could play in foreign policy. See Brief of the American Bar Association as
Amicus Curiae in Support of Petitioners, Kiobel, 565 U.S. ___, 132 S. Ct. 1738
(No. 10-1491); Brief for the Government of the Argentine Republic as Amicus
Curiae in Support of Petitioners, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 101491); Supplemental Brief of Volker Beck and Christoph Strasser, Members of
Parliament of the Federal Republic of Germany, Amici Curiae in Support of
Petitioners, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491). Still others
discussed the important role ATS cases could play in deterring human rights
violations. See Brief for John Ruggie, supra note 51; Brief on Re-Argument of
Amici Curiae the Institute for Human Rights and Business, Errol P. Mendes,
David Petrasek, John F. Sherman, III, and the University of Minnesota Human
Rights Litigation and International Advocacy Clinic in Support of Neither
Party, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491); Brief of Former U. S.
Gov’t Counterterrorism and Human Rights Officials as Amici Curiae In Support
of Petitioners, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491).
96. Transcript of Oral Argument, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No.
10-1491) (argued Oct. 1, 2012). For the second round, the Supreme Court asked
the parties to file supplemental briefs and argue specifically the following issue:
“Whether and under what circumstances the [ATS] allows courts to recognize a
cause of action for violations of the law of nations occurring within the territory
of a sovereign other than the United States.” Order for Reargument, Kiobel, 565
U.S. ___, 132 S. Ct. 1738 (No. 10-1491). This question is outside the scope of this
Article. As of this writing, the parties’ supplemental briefs have been
submitted addressing the Court’s specific question. As for the first round,
various amici in this second round filed briefs and again came to opposing
conclusions.
97. Robert H. Jackson, Opening Statement Before the International
Military Tribunal (Nov. 21, 1945), available at http://www.roberthjackson.org/
the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/openingstatement-before-the-international-military-tribunal (last visited Aug. 25,
40
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Legacy of Nuremberg
he eloquently stated: “While it is quite proper to employ the
fiction of responsibility of a state or corporation for the purpose of
imposing a collective liability, it is quite intolerable to let such a
legalism become the basis of personal immunity.”98 The broader
legacy of NEJ is that actions against natural persons, organizations, and corporations could be taken under international law
both inside and outside the courtroom. We set out here the
portions of NEJ that provide legal responsibility of corporations
under international law.
A. Juridical Persons Were Included in Nuremberg-era
Jurisprudence from the London Charter Through the Trials
One of the starting points for the Kiobel majority and various
amici in support of corporate immunity under international law
is the assertion that the London Charter only allowed
prosecution of natural persons.99 So, what did the London
Charter actually say? Most important to the analysis here, the
Charter specified that groups or organizations could violate
international law when the Charter authorized the IMT to
designate any group or organization as criminal: “At the trial of
any individual member of any group or organization the Tribunal
may declare (in connection with any act of which the individual
may be convicted) that the group or organization of which the
individual was a member was a criminal organization.”100
At the IMT trial,101 the tribunal noted the significance of the
London Charter:
The Charter is not an arbitrary exercise of power on the
part of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
2012).
98. Id.
99. Brief of KBR, Inc. as Amicus Curiae Supporting Respondents at 13,
Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (citing Khulumani v. Barclay
Nat’l Bank Ltd., 504 F.3d 254, 321–22 (2d Cir. 2007) (Korman, J., dissenting));
NHIL Brief, supra note 88, at 18–19.
100. Charter of the Int’l Mil. Trib. at Nuremberg (London Charter), art. 9,
Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
101. The Nurnberg Trial 1946, 6 F.R.D. 69 (1946).
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existing at the time of its creation; and to that extent is itself a
contribution to international law.102
The IMT prosecutors indicted six Nazi organizations: the
Reich Cabinet; the Sturmabteilungen (“SA”); the German High
Command; the Leadership Corps of the Nazi Party; the SS, with
the SD as its integral part; and, separately, the Gestapo. The
Nuremberg judges acquitted the first three organizations and
designated the last three as criminal.
These three Nazi organizations were then subjected to
dissolution as well as the confiscation of all their assets by the
Control Council, the Allied occupation authority governing
Germany after its defeat. The disbanding of these organizations,
like the convictions of the leading Nazis, was undertaken by a
multinational body, and was a specific legal recognition of the
organizations’ culpability under international law. The Allies
dissolved the Nazi Party and its related entities through an
international agreement on September 20, 1945 (after the
London Charter of August 8, 1945 and before the IMT trial began
on November 20, 1945).103 Control Council Law No. 2 permanently abolished the Nazi Party and affiliated organizations,
declared them illegal, and authorized the confiscation of all their
property and assets.104
Control Council Law No. 43 also made clear that organizations could be punished inside the courtroom:
Any organization violating, or attempting to violate any of the
provisions of this law or of any regulations hereunder shall be
liable to prosecution before a Military Government Court and upon
102. Id. at 107. The NHIL amici accept the London Charter as international
law, but without any basis for distinction, dismiss the Potsdam Agreement,
Yalta Accord and all Control Council, High Commission, and Military
Government laws as international law. See NHIL Brief, supra note 88, at 31.
103. Arrangements for Control, supra note 19, at 29 (“The National Socialist
German Workers’ Party (NSDAP) is completely and finally abolished and
declared to be illegal.”).
104. Control Council Law No. 2, Providing for the Termination and
Liquidation of the Nazi Organizations (Oct. 10, 1945), reprinted in 1
ENACTMENTS AND APPROVED PAPER OF THE CONTROL COUNCIL AND COORDINATING
COMMITTEE 131, available at http://www.loc.gov/rr/frd/Military_Law/
Enactments/Volume-I.pdf.
42
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Legacy of Nuremberg
conviction shall be dissolved and its property confiscated by order
of the Court.”105
NEJ, both inside and outside the courtroom, therefore
establishes that juridical entities can be liable for international
law violations in addition to states and natural persons.
B. The Basis for Allied International Legal Actions Against
Corporations
The trials of the industrialists undertaken by the Americans
before the NMT and actions of the other Allied Control Council
and related bodies against German industry demonstrate that
actions taken as a part of corporate activity were seen as
appropriate for criminal prosecution. However, in addition to the
criminal punishment of the individual German industrialists
before the Nuremberg tribunals, the Allies also created a legal
framework to address the actions by the corporations.
Scholars to this day differ on whether the customary
international law principle of debellatio—the law governing
complete conquest—was in effect in occupied Germany after
unconditional surrender,106 or whether the Allies were governing
according to the customary international law of occupation, as
codified in the 1907 Hague Regulations.107 This debate is not
105. Control Council Law No. 43: Prohibition of the Manufacture, Import,
Export, Transport and Storage of War Materials, Art. VI (Dec. 20, 1946),
reprinted in 1 ENACTMENTS AND APPROVED PAPER OF THE CONTROL COUNCIL AND
COORDINATING COMMITTEE, available at http://www.loc.gov/rr/frd/Military_Law/
Enactments/05LAW43.pdf.
106. See, e.g., EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION 91–
96 (2004); YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT
OCCUPATION 33 (2009); KEVIN JON HELLER, THE NUREMBERG MILITARY TRIBUNALS
AND THE ORIGINS OF INTERNATIONAL CRIMINAL LAW 113–20 (2011). The NMT in
The Ministries Case, 14 TRIALS OF WAR CRIMINALS 690 (1946–1949), and The
Justice Case, 3 TRIALS OF WAR CRIMINALS 960–62 (1948), concluded that the
customary international law principle of debellatio was in effect after
Germany’s surrender.
107. See, e.g., Convention Regarding the Laws and Customs of War on
Land, annexed to Convention Respecting the Laws and Customs of Land
Warfare, art. 46, Oct. 18, 1907, 36 STAT. 2277, available at 2 AM. J. INT’L. L. 1,
112–13 (Supp. 1908) (Article 43 required that the laws of the occupied country
be respected unless the occupier was “absolutely prevented” from doing so).
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relevant to the issue in the present case, however, because there
is no debate that the Allies controlled the area they conquered
under the international law of occupation and that, whether
acting inside or outside the various courtroom in occupied
Germany, they aimed to make their actions conform to
international law.108
Even before the war had ended, the Allies began negotiating
the parameters of the postwar legal framework through the
European Advisory Commission (EAC).109 This included punishment for past acts of aggression and other war crimes and an
effort to deter in the future such crimes through the dismantling
of the German war machine.110
At the February 1945 Crimea Conference, prior to the end of
the war in May 1945, the Allies set forth in the Yalta Accords the
“inflexible purpose” to “destroy German militarism and Nazism
and to ensure that Germany will never again be able to disturb
the peace of the world.”111 To meet that goal, the Control Council
was instructed to “[e]liminate or control all German industry
that could be used for military production; bring all war
criminals to justice and swift punishment and exact reparation in
kind for the destruction wrought by Germans.”112
After Nazi Germany’s surrender, international agreements
established the basis of the Allied plan commonly described as
demilitarization, decartelization, denazification and democratiza108. Amici Professors of International Law, Foreign Relations Law, and
Federal Jurisdiction Supporting Respondents state that the dissolution of
companies such as I.G. Farben was “an exercise of military authority by the
occupation forces. However, with respect to any determination of liability under
customary international law, only individuals were brought to account.” Brief
for Professors of Int’l Law, et al. as Amici Curiae Supporting Respondents at 25,
Kiobel v. Royal Dutch Petrol. Co., 565 U.S. ___, 132 S. Ct. 1738 (2012) (No. 101491). They provide no argument or authority for why or how they are
distinguishing customary international law from the longstanding customary
international law of occupation.
109. HAJO HOLBORN, AMERICAN MILITARY GOVERNMENT: ITS ORGANIZATIONS
AND POLICIES 22 (1947).
110. Id. at 26.
111. Crimea Conference Communiqué (Feb. 11, 1945), reprinted in 1
ENACTMENTS AND APPROVED PAPER OF THE CONTROL COUNCIL AND COORDINATING
COMMITTEE 2, available at http://www.loc.gov/rr/frd/Military_Law/Enactments/
Volume-I.pdf (last visited, September 25, 2012).
112. Id.
44
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Legacy of Nuremberg
tion.113 As a central component of this program, corporations
faced demilitarization and decartelization as the Allies sought
the elimination or control of all German industry that could be
used for military production.
The other central document setting forth the postwar legal
structure, the 1945 Potsdam Agreement, stated that the
“purposes of the occupation of Germany by which the Control
Council shall be guided are the complete disarmament and
demilitarization of Germany . . . to dissolve all Nazi institutions
and to prepare for the eventual reconstruction of German
political life . . . and for eventual peaceful cooperation in
international life by Germany.”114 With regard to German
corporations, the Potsdam Agreement specified: “At the earliest
practicable date, the German economy shall be decentralized for
the purpose of eliminating the present excessive concentration of
economic power as exemplified in particular by cartels,
syndicates, trusts and other monopolistic arrangements.”115 The
two related objectives of the program were the elimination of
Germany’s war potential116 and the payment of reparations.117
The Allies created a network of multilateral bodies to
implement their laws: the aforementioned Allied Control Council,
the Allied High Commission, Coordinating Committee, Economic
Directorate, and Finance Department.118 The mandate of the
quadripartite Control Council was to translate the Allies’ policies
into law.119 Under the Control Council was the Coordinating
113. DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE
FORMATION OF HOLOCAUST HISTORY AND MEMORY 25 (2001). Some documents
have also referred to “deconcentration”—which appears to overlap with
“decartelization.”
114. Id., § II.A.3 at 1481–82; see also BLOXHAM, supra note 113, at 25
(describing the Allied postwar goals as demilitarization, decartelization,
denazification and democratization).
115. Protocol of the Proceedings of the Berlin (Potsdam) Conference,
§ II.B.12, Jul. 17–Aug. 2, 1945, 2 FOREIGN RELATIONS: CONFERENCE OF BERLIN
(POTSDAM) 1945, 1483 (1960).
116. Id., § II.B.11, II.B.19.
117. Id., § II.B.19. There was a general view that the punitive terms of the
Treaty of Versailles following World War I had a crippling effect on the German
economy.
118. Arrangements for Control, supra note 19, at 21.
119. See AGREEMENT ON CONTROL MACHINERY IN GERMANY, NOV. 14, 1944,
reprinted in STAFF OF S. COMM. ON FOREIGN RELATIONS, 80TH CONG., DOCUMENTS
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Committee, which was assisted by ten directorates serving as
functional specialists for the Coordinating Committee, including
the Finance Directorate, Legal Directorate, Reparation
Directorate, and Restitutions Directorate.120 The Control Council
and Coordinating Committee were provided with the “means of
legislative action,” including laws “on matters of general
application,” orders to communicate Control Council requirements, and directives used to “communicate policy or
administrative decisions of the Control Council.”121
In 1949, after the separation of the Soviet Union from the
other three Allies (United Kingdom, the United States, and
France), the three Western Allies established the parameters of
the occupation under the 1949 Occupation Statute.122 The
Occupation Statute specified:
In order to ensure the accomplishment of the basic
purposes of the occupation, powers in the following fields are
OF GERMANY, 1944–1959: BACKGROUND DOCUMENTS ON GERMANY,
AND A CHRONOLOGY OF POLITICAL DEVELOPMENTS AFFECTING BERLIN,
1944–1959,
1945–1956,
available at images.library.wise.edu/History/EFacs/GerRecon/BackrndDocs/
reference/history.backgrnddocs.i0001.pdf; Eli E. Nobleman, Quadripartite
Military Government Organization and Operations in Germany, 41 AM. J. INT’L.
L. 650, 651–52 (1947) (stating that the supreme governing machinery for
Germany is the Allied Control Authority (ACA), composed of the Control
Council, the Coordinating Committee, the Control Staff and the Allied
Secretariat). The Control Council was composed of Commanders-in-Chief of the
Armed Forces of the United States, United Kingdom, Union of Soviet Socialist
Republics, and France, and acted “on instructions from their respective
governments with respect to all matters affecting Germany as a whole.” Id. at
651.
120. Nobleman, supra note 119, at 651–52.
121. Control Council Directive No. 10, Control Council Methods of
Legislative Action (Sept. 2, 1945), reprinted in 1 ENACTMENTS AND APPROVED
PAPER OF THE CONTROL COUNCIL AND COORDINATING COMMITTEE 95 (1946),
available at http://www.loc.gov/rr/frd/Military_Law/Enactments/law-index.pdf
(last visited September 25, 2012). Control Council Directive No. 51, which
replaced Control Council Directive No. 10, states that “the only legislative acts
which may contain penalty clauses are laws and orders.” Control Council
Directive 51, Legislative and Other Acts of the Control Council (Apr. 29, 1947),
reprinted in 7 ENACTMENTS AND APPROVED PAPERS OF THE CONTROL COUNCIL AND
COORDINATING COMMITTEE 27, available at http://www.loc.gov/rr/frd/Military_
Law/Enactments/law-index.pdfindex.pdf (last visited September 25, 2012).
122. Occupation Statute Defining the Powers to be Retained by the
Occupation Authorities, Apr. 8, 1949 (entered into force Sept. 21, 1949), T.I.A.S.
No. 2066, 140 U.N.T.S. 202.
46
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Legacy of Nuremberg
specifically reserved, . . . (a) disarmament and demilitarization,
including . . . prohibitions and restrictions on industry . . . (b). .
. restitution, reparations, decartelization, deconcentration, . . .
The occupation authorities, however, reserve the right, acting
under instructions of their Governments, to resume, in whole
or in part, the exercise of full authority if they consider that to
do so is essential to security or to preserve democratic
government in Germany or in pursuance of the international
obligations of their governments.123
In 1949, the three-power Allied High Commission replaced
the four-power Control Council for the Western occupied zones,
and the Federal Republic of Germany began to be created out of
the Western zones. Related laws, sometimes known as “zonal
legislation,” were also issued for the Federal Republic of
Germany in the different Western Allied zones still under partial
occupation.
The Allied laws were intended to encompass more than
natural persons. Control Council Law No. 5 (CCL5) specifically
defined “person” to include “collective” or “juridical” persons or
entities.124 CCL5, echoing the language of Yalta and Potsdam,
also discussed its overarching goal: to seize all German assets
abroad “with the intention thereby of promoting international
peace and collective security.”125
A series of laws was enacted dealing with particular
corporations or industrial sectors. Actions taken against these
companies included disbanding them and distributing their
assets as reparations, and were undertaken as a form of punishment for and deterrence of the crime of instigating a war of
aggression.
123. Id. at 172–73 (emphasis added).
124. Control Council Law No. 5, Vesting and Marshalling of German
External Sources (Oct. 30, 1945), reprinted in 1 ENACTMENTS AND APPROVED
PAPERS OF THE CONTROL COUNCIL AND COORDINATING COMMITTEE 176, 179
(1945), available at http://www.loc.gov/rr/frd/Military_Law/Enactments/lawindex.pdf (last visited September 25, 2012) (“[T]he term ‘person’ shall include
any natural person or collective person or any juridical person or entity under
public or private law having legal capacity to acquire, use, control or dispose of
property or interests therein.”).
125. Id. at 176.
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C. Legal Action Taken Against I.G. Farben and its Officers
The most well-known example of Allied action taken against
a German corporation is the case of I.G. Farben, notorious for
being critical both to the Nazi aggressive war effort and the
system of slave labor and other atrocities that took place during
the Nazi era.126
Farben’s behavior exemplified a major multinational
corporation committing acts without any qualms of their horrific
impact. Farben knowingly supplied Zyklon B poison gas used in
the German concentration camps to murder millions, conducted
notorious medical experiments upon unwilling prisoners at
Auschwitz, and operated a massive industrial complex next to
Auschwitz that ruthlessly exploited over 25,000 inmates, most of
whom died from hunger, disease, or exhaustion.127
Farben also provided key assistance to the Nazi aggressive
war campaign. As put by the Farben report issued by the Allies
after the war: “Without I.G.’s immense productive facilities, its
far-reaching research, varied technical experience and overall
concentration of economic power, Germany would not have been
in a position to start its aggressive war in September 1939.”128
The company also looted the chemical properties of countries
conquered by the Nazis.129
Prior to the creation by the Control Council of the NMT
under Control Council Law No. 10 on December 20, 1945, Farben
was disbanded under Control Council Law No. 9 on November
30, 1945.130 This law specifically directed the dissolution of I.G.
Farben and the dispersal of its assets.131
Control Council Law No. 9 was based on the customary
international law prohibition of crimes against peace that the
Allies cited in the London Charter and used to prosecute Nazi
126. JOSEPH BORKIN, THE CRIME AND PUNISHMENT OF I.G. FARBEN 1–2
(1978).
127. See Id. at 3–4, 133–39.
128. Id. at 1 (quoting Control Council Finance Division, Germany, Report on
Investigation of I.G. Farbenindustrie, Sept. 12, 1945).
129. Id. at 2.
130. Control Council Law No. 9, supra note 77.
131. Id.
48
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Legacy of Nuremberg
leaders for waging aggressive war.132 The Preamble to Control
Council Law No. 9, titled “Providing for the Seizure of Property
Owned By I.G. Farbenindustrie and the Control Thereof,” stated
its clear purpose before ordering the dissolution of what was
regarded as the Allies’ principal economic enemy: “In order to
insure that Germany will never again threaten her neighbors or
the peace of the world, and taking into consideration that I.G.
Farbenindustrie knowingly and prominently engaged in building
up and maintaining the German war potential . . . .”133
The punishment imposed by the Allied Control Council upon
I.G. Farben was seizure.134 Article I of Control Council Law No. 9
states: “All plants, properties and assets of any nature situated
in Germany which were, on or after 8 May, 1945, owned or
controlled by I.G. Farbenindustrie A.G., are hereby seized by and
the legal title thereto is vested in the Control Council.”135
Allied Military Government General Order No. 2 (Pursuant
to Law No. 52: Blocking and Control of Property), which was to
carry out the seizure of I.G. Farben property in the U.S. Zone,
specified that one of the purposes was reparations:
4. (a) In the exercise of such powers the Deputy Military
Governor, or any person acting by or under his authority with
132. The Kellogg-Briand Pact made the planning and waging of aggressive
war both illegal and criminal. Sheldon Glueck, The Nuremberg Trial and
Aggressive War, 59 HARV. L. REV. 396, 407–12 (1946); Oscar Schachter, In
Defense of International Rules on the Use of Force, 53 U. CHI. L. REV. 113, 115
n.12 (1986).
133. Control Council Law No. 9, supra note 77, at 225; see also B.
BERNSTEIN, OFFICE OF MILITARY GOVERNMENT, UNITED STATES (GERMANY), DIV.
OF INVESTIGATION OF CARTELS AND EXTERNAL ASSETS, REPORT ON THE
INVESTIGATION OF I.G. FARBENINDUSTRIE A.G. i (1945), available at http://
www.profit-over-life.org/pdf/books/report_on_the_investigation.pdf (last visited
September 25, 2012) (describing a “program adopted by the Allied Powers at
Potsdam to strip Germany of all of her external assets in the interest of future
world security and to use such assets for the relief and rehabilitation of
countries devastated by Germany in her attempt at world conquest. . . . [T]he
primary purpose of the Allied Powers in acquiring all German holdings in other
countries is to prevent their use by Germany in waging a third World War. . . ”).
Disregarding that the dissolution was based both on an exhaustive examination
of the facts, and, as argued above, on international law, the NHIL Amicus Brief
asserts that the dissolution of I.G. Farben “was not based on legal criteria.”
NHIL Brief, supra note 88, at 33.
134. Control Council Law No. 9, supra note 77, at 225.
135. Id.
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respect to such property, shall be guided by the following
specific objectives, and will take such measures as he deems
appropriate to accomplish them: a) The making available to
devastated non-enemy countries of Europe and to the United
Nations, in accordance with such programs of relief, restitution
and reparations as may be decided upon, of any of the property
seized under this order and, in particular [lists a large amount
of products and equipment].136
Following Control Council Law No. 9, the Allies also enacted a
series of additional laws targeting Farben. For example, Allied
Military Government Law No. 5 prohibited transaction of I.G.
Farben stocks.137 A 1950 directive regarding Farben emphasized
that when acting against Farben the Allies saw themselves as an
international body bound by law.138 Article 2 of the directive
specified that “[u]ntil the council of the Allied High Commission
has otherwise decided, the British, French and United States I.G.
Farben Control Officers shall continue to exercise all rights and
powers of seizure and control over the assets subject to this Law
conferred by any Occupation Legislation.”139
Between August 1947 and July 1948, the NMT in United
States v. Krauch [Trial No. 6], put on trial twenty-four directors
of Farben.140 Ten were acquitted, with the remainder found
guilty and receiving prison terms ranging from eight years to
time already served (one and a half years).141
While the NMT was clear in United States v. Krauch that
Farben was not before the court (and one obvious reason was
because it had already been disbanded by Control Council Law
136. Allied Military Government General Order No. 2, Blocking and Control
of Property (June 1, 1946), reprinted in MILITARY GOVERNMENT GAZETTE, June 1,
1946.
137. Allied Military Government Law No. 5, Prohibition of Transactions in
Stocks and Bonds and Other Interests of I.G. Farbenindustrie A.G. (Jan. 29,
1946), reprinted in MILITARY GOVERNMENT GAZETTE, June 1, 1946.
138. Allied High Commission Law No. 35, Dispersal of Assets of I.G.
Farbenindustrie (Aug. 17, 1950), reprinted in DOCUMENTS ON GERMANY UNDER
OCCUPATION 1945–1954, 503 (1955).
139. Id. at 7.
140. Records of the United States Nuremberg War Crimes Trials, United
States v. Krauch (Case IV) (Aug. 14, 1947–July 30, 1948), available at
http://www.profit-over-life.org/rolls.php?roll=1.
141. Id.
50
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Legacy of Nuremberg
No. 9, which was enacted before the creation of the NMT
tribunals under Control Council Law No. 10), throughout the
opinion the NMT discussed the corporation as an entity. The
opinion summed up the wartime activities of Farben: “[I. G.
Farben] used its expert technical knowledge and resources to
plunder and exploit the chemical and related industries of
Europe, to enrich itself from unlawful acquisitions, to strengthen
the German war machine and to assure the subjugation of the
conquered countries to the German economy.”142
The NMT explicitly noted that corporations were legally
responsible even though they were not before the court:
[W]here private individuals, including juristic persons, proceed
to exploit the military occupancy by acquiring private property
against the will and consent of the former owner, such action,
not being expressly justified . . . , is in violation of international
law. . . . Similarly where a private individual or a juristic
person becomes a party to unlawful confiscation of public or
private property by planning and executing a well-defined
design to acquire such property permanently, acquisition under
such circumstances subsequent to the confiscation constitutes
conduct in violation of [international law].143
Describing Farben’s activities, the NMT wrote:
We find that the proof establishes beyond a reasonable
doubt that offences against property as defined in Control
Council Law No. 10 were committed by Farben, and that these
offences were connected with, and an inextricable part of the
German policy for occupied countries as above described. . . .
The action of Farben and its representatives, under these
circumstances, cannot be differentiated from acts of plunder or
pillage committed by officers, soldiers, or public officials of the
German Reich.144
142. U.N. War Crimes Comm’n, 10 LAW REPORTS OF TRIALS OF WAR CRIMES 4
(1949).
143. Id. at 44 (emphasis added).
144. Id. at 49–50.
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D. Legal Actions Against Other German Corporations and Their
Corporate Officers
The actions taken against I.G. Farben were not undertaken
in isolation. The Control Council issued orders for the seizure of
the assets of other German corporations, notably those producing
arms, coal, steel and chemicals, and the banks and insurance
companies that the Allies, after detailed investigations, found to
be involved in the war of aggression.145 Those companies were
dissolved and their assets made available for reparations.146 As
with Control Council Law No. 9, the language of these particular
laws made clear their foundation in international law.147 For
example, Control Council Directive 39 noted that “[t]he Potsdam
decisions call for the liquidation of German war and industrial
potential. . . .”148 The principles to be followed in the “Rules for
Liquidation” of war plants noted that buildings were to be
“destroyed, [ ] declared available for reparations, or [ ] left for the
peace-time economy in cases where they can be used for the
peace-time economy. . . .”149
The laws enacted linked the elimination of concentrated
economic power to the prevention of future violations of international law. Military Government Law No. 56 stated that it was
enacted “in accordance with paragraph 12 of the Potsdam
Agreement in order to (i) prevent Germany from endangering the
safety of her neighbors or again constituting a threat to
international peace . . . .”150
145. See Control Council Directive No. 39, Liquidation of German War and
Industrial Potential (Oct. 2, 1946), reprinted in 5 ENACTMENTS AND APPROVED
PAPERS OF THE CONTROL COUNCIL AND COORDINATING COMMITTEE 1–6, available
at http://www.loc.gov/rr/frd/Military_Law/Enactments/law-index.pdf; Control
Council Directive No. 47, Liquidation of German War Research Establishments
(Mar. 27, 1947), reprinted in 6 ENACTMENTS AND APPROVED PAPERS OF THE
CONTROL COUNCIL AND COORDINATING COMMITTEE 95–97, available at
http://www.loc.gov/rr/frd/Military_Law/Enactments/Volume-VI.pdf.
146. See Control Council Directive No. 39, supra note 145; Control Council
Directive No. 47, supra note 145.
147. See Control Council Directive No. 39, supra note 145; Control Council
Directive No. 47, supra note 145.
148. See Control Council Directive No. 39, supra note 145, at 1.
149. Id. at 3.
150. Prohibition of Excessive Concentration of German Economic Power,
MILITARY GOVERNMENT GAZETTE, Feb. 12, 1947. Identical language was
52
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Legacy of Nuremberg
A series of laws also focused on the denazification of
industries and specifically regulated who businesses could hire.
For example, Control Council Law No. 8 (also enacted prior to
Control Council Law No. 10), “with the aim of cleansing big
business, . . . purged all Nazi Party members from supervisory or
managerial posts in business.”151 Allied Military Government
Law No. 8, stated, at Paragraph 1, “It shall be unlawful for any
business enterprise to employ any member of the Nazi party or of
its affiliate organizations in any supervisory or managerial
capacity, or otherwise than in ordinary labor . . . .”152 Law No. 8
also made compliance with this provision a necessary condition
for a business to be permitted to open or operate.153 Examples of
corporations that were dismantled or “denazified” under these
laws include the Krupp firm (Fried. Krupp A.G., Essen and
successor Fried. Krupp. Essen) (“Krupp”) and other coal, iron,
and steel producers; banks; and insurance companies.
As one example, the Krupp was the largest manufacturer of
large caliber armaments and warships and the second largest
producer of iron and coal,154 and as such one of the principal
sources of supply for German armed forces.155 Krupp allegedly
subjected “over 55,000 foreign workers, over 18,000 prisoners of
war and over 5,000 concentration camp inmates” to forced
labor.156
Law No. 75, issued by the Office of the Military Government
of the United States and the British zonal authorities, was
repeated in British Military Government Ordinance No. 78, MILITARY
GOVERNMENT GAZETTE, Feb. 12, 1947, at 412 .
151. Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in
International Criminal Law: What Nuremberg Really Said, 109 COLUM. L. REV
1094, 1147 (2009).
152. Allied Military Government Law No. 8, Prohibition of Employment of
Members of Nazi Party in Positions in Business Other than Ordinary Labor and
for Other Purposes, MILITARY GOVERNMENT GAZETTE, Sept. 26, 1945, available
at http://digicoll.library.wisc.edu/cgibin/History/Historyidx?type=div&did=
History.Denazi.i0012&isize=M.
153. Id.
154. United States v. Krupp (The Krupp Case), 9 TRIALS OF WAR CRIMINALS
11 (1950).
155. Id.
156. Id. at 75.
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directed at the coal, iron and steel industries.157 This law set the
framework for the re-distribution of shares of German heavy
industry companies to their owners (after breaking the
companies into smaller entities subject to Military Government
Laws No. 52 and 56) and stated the punitive and deterrent
intents: to prevent the “excessive concentration of economic
power and . . . the return to positions of ownership and control of
those persons who have been found or may be found to have
furthered the aggressive designs of the national Socialist
Party.”158
In 1950, Allied High Commission Law No. 27 replaced
Military Government Law No. 75 in the three Western Zones and
provided for the reorganization of German coal, iron, and steel
industries with the goal of “preventing the development of a war
potential . . . .”159 Article 2 of Law No. 27 provided: “The enterprises listed or described in Schedule A shall be liquidated and
reorganized with a view to the elimination of excessive concentrations of economic power which constitute a threat to
international peace . . . .”160 Examples of deconcentration pursuant to Law No. 27 were the actions taken against German
heavy industry, including large iron and steel conglomerates
such as Krupp, Flick, and Vereinigte Stahlwerke AG.161
Allied Military Government Order No. 1 made clear that the
disposition of “certain coal properties” was undertaken pursuant
to international objectives, “whereas, it is a basic objective of the
157. Allied High Comm’n Law No. 75, On the Reorganization of German
Coal and Iron and Steel Industries (May 16, 1950), reprinted in 20 OFFICIAL
GAZETTE OF THE ALLIED HIGH COMM’N OF GERMANY 299 (1973).
158. United Kingdom and United States Military Government Law No. 75,
Reorganization of German Coal and Iron and Steel Industries (May 16, 1950)
available at http://www.cvce.eu/content/publication/1999/1/1/6148d81c-88f94afd-9f95-d2b626b9ed0b/publishable_en.pdf.
159. Allied High Commission Law No. 27, On the Reorganization of the
German Coal and Steel Industries (May 16, 1950), reprinted in OFFICIAL
GAZETTE OF THE ALLIED HIGH COMMISSION FOR GERMANY, May 20, 1950, at 299
[hereinafter Allied Law No. 27]; see also Allied Military Government General
Order No. 7, Iron and Steel Undertakings (1946), reprinted in MILITARY
GOVERNMENT GAZETTE, Aug. 20, 1946.
160. Allied Law No. 27, supra note 159.
161. See id. at Schedule A; ISABEL WARNER, STEEL AND SOVEREIGNTY: THE
DECONCENTRATION OF THE WEST GERMAN STEEL INDUSTRY 1949–1954, 6–7
(1996).
54
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Legacy of Nuremberg
United Nations that the German economy shall be decentralized
for the purpose of eliminating excessive concentration of
economic power . . . .”162
The Krupp firm was ordered dismantled by the Tribunal
since Alfried Krupp, as the sole owner of Krupp, was sentenced to
twelve years imprisonment and ordered to forfeit all his property
under Control Council Law No. 10.163 Legal action was also taken
by the zonal authorities; the entire Krupp concern was
confiscated pursuant to Military Government Law No. 52, and
General Order No. 3.164
Similar to the Farben case, in the Krupp case the NMT
examined the actions of the corporation itself, although Krupp
was not itself on trial:
We conclude from the credible evidence before us that the
confiscation of the Austin plant based upon German-inspired
anti-Jewish laws and its subsequent detention by the Krupp
firm constitute a violation of Article 43 of the Hague
Regulations which requires that the laws in force in an
occupied country be respected: [sic] that it was also a violation
of Article 46 of the Hague Regulations which provides that
private property must be respected: [sic] that the Krupp firm,
through defendants . . . , voluntarily and without duress
participated in these violations . . . and that there was no
justification for such action.165
The Potsdam conference was central to the multilateral
implementation of the “Potsdam postulate of decentralization” as
it affected the banks.166 Two banks on which the Allies focused
their investigations were the Deutsche Bank and the Dresdner
162. Allied Military Government Order No. 1, Providing for Disposition of
Certain Coal Properties (Oct. 1, 1947), reprinted in MILITARY GOVERNMENT
GAZETTE, Oct. 31, 1947 (Krupp and Flick are listed as two of the coaldistributing companies that the order applies to).
163. The Krupp Case, 9 TRIALS OF WAR CRIMINALS 11, 1449–50 (1950).
164. Allied Military Government General Order No. 3, Firma Friedrich
Krupp (1946), reprinted in MILITARY GOVERNMENT GAZETTE, June 6, 1946.
165. The Krupp Case, 9 TRIALS OF WAR CRIMINALS at 139.
166. LOTHAR GALL ET AL., THE DEUTSCHE BANK 1870–1995, 406 (1995).
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Bank.167 Both banks stole Jewish property by participating in the
“Aryanization” process, i.e., the transfer of Jewish businesses and
property to non-Jews.168 For example, by November 1938,
Deutsche Bank had participated in the “Aryanization” of over
300 Jewish businesses.169 The bank also serviced accounts from
the Gestapo, which deposited money obtained after auctioning
confiscated property from deported Jews. During the war,
Deutsche Bank purchased more than 4.4 tons of gold from the
Reichsbank, the German central bank. Included in the purchase
was “744 kilograms [1,637] pounds of dental gold taken from
Jews’ teeth, wedding bands and personal property.”170 One of the
most notorious examples of Deutsche Bank complicity in war
crimes and crimes against humanity was the bank’s financing of
the construction of the Auschwitz concentration camp.
As for Dresdner Bank, a 2,374-page, four-volume analysis of
Dresdner’s Nazi past, commissioned by the bank and issued in
2006 by independent historians, generally found that Dresdner
Bank “built Nazi concentration camps, funded the SS and was
intimately connected to the whole economic infrastructure of
Hitler’s Germany.”171 In Nazi occupied lands, the saying went,
“Right after the first German bank comes Dr. Rasche from the
Dresdner Bank.”172 Dresdner Bank also owned 26 per cent of
167. OFFICE OF MILITARY GOVERNMENT (U.S.) REPORTS, WAR CRIMES OF THE
DEUTSCHE BANK AND THE DRESDNER BANK 39 (Christopher Simpson ed., 2002)
[hereinafter OMGUS Reports].
168. HAROLD JAMES, THE NAZI DICTATORSHIP AND THE DEUTSCHE BANK 67–69
(2004) [hereinafter NAZI DICTATORSHIP]; see also Ungaro-Benages v. Dresdner
Bank AG, 379 F.3d 1227, 1230 (11th Cir. 2004); GALL ET AL., supra note 166;
OMGUS Reports, supra note 167, at 39; JONATHAN STEINBERG, THE DEUTSCHE
BANK AND ITS GOLD TRANSACTIONS (1999); HAROLD JAMES, THE DEUTSCHE BANK
AND THE NAZI ECONOMIC WAR AGAINST THE JEWS : THE EXPROPRIATION OF JEWISHOWNED PROPERTY (2001).
169. NAZI DICTATORSHIP, supra note 168, at 68.
170. John Schmidt, "Deutsche Bank Says It 'Regret's Nazi Deals," Int'l.
Herald Trib., August 1, 1998.
171. Patrick Jenkins, "Report Details Dresdner Bank's Nazi Past," Fin.
Times, Feb. 17, 2006.
172. Rafael Seligmann, "One of Germany's largest banks faces up to Nazi
past," Haaretz, Feb.16, 2006.
56
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Legacy of Nuremberg
Huta, the construction company that built portions of
Auschwitz.173
A Liquidation Commission was set up after the war by the
quadripartite Control Council; it required that the Dresdner
Bank close roughly half of its branches, including all branches
east of the Oder-Neisse line.174 Deutsche Bank was also broken
into ten smaller units.175
The German insurance companies provided essential support
to the Nazi regime.176 Allianz and other German insurance
companies dismissed Jewish employees,177 disposed of and
acquired Jewish assets, participated in the expropriation of
assets in the occupied territories, and insured businesses using
forced and slave labor and the sites of the extermination
camps.178 Allianz insured the concentration camp factories.179
Instead of paying Jewish beneficiaries, Allianz turned over the
proceeds of Jewish policyholders to the Nazi authorities.180 The
private insurance companies also acquired the insurance rights
in Germany’s occupied lands.181
The postwar military authorities, recognizing the role of the
insurance companies, took measures against them. Control
Council Law No. 57 provided for “Dissolution and Liquidation of
Insurances Connected with the German Labour Front,” a Nazi
173. Id.
174. Dresdner Bank from 1872 to 2009, COMMERZBANK, www.commerzbank.
com/media/konzern/neue_commerzbank/marke/geschichte/dresdner_bank_histo
ry.pdf (last visited Aug. 19, 2012); see also OMGUS Reports, supra note 167, at
255.
175. HAROLD JAMES,, THE DEUTSCHE BANK AND THE NAZI ECONOMIC WAR
AGAINST THE JEWS : THE EXPROPRIATION OF JEWISH-OWNED PROPERTY 232 (2001).
Deutsche Bank was allowed to reconstitute itself in 1957. Id.
176. Allianz was the largest insurance company in Germany when the Nazi
party came to power. The extensive involvement of Allianz and its officers with
the activities of the Third Reich is well documented in GERALD D. FELDMAN,
ALLIANZ AND THE GERMAN INSURANCE BUSINESS, 1933–1945 (2001).
177. See, e.g., id. at 295. Company executives and even middle management
were dismissed as part of the denazification process.
178. Id. at 445.
179. Id. at 535.
180. Id. at 494.
181. Id.
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organization.182 This law was enacted pursuant to Control
Council Law No. 2, which targeted Nazi organizations. However,
the argument that, because the companies subject to CCL No. 57
were all Nazi-front, controlled, or affiliated entities, no action
was taken against private insurance groups simply ignores the
actions taken under Military Government Law No. 52.183
Insurance companies such as Allianz, which were not considered
directly part of Nazi regime, were subject to denazification, and
their respective assets were subject to seizure under Military
Government Law No. 52.184 The law “enabled occupation
authorities to seize and control not only the property and assets
of Nazis and their organizations but also property wrongfully
taken or acquired by duress . . . .”185
E. Realpolitik and the Cold War
Many of the actions taken to punish German individuals and
German corporations by the Allied Control Council during the
occupation were later undercut (or reversed) by the Western
Powers as part of their campaign to make West Germany
economically strong as a bulwark against further encroachment
of Communism.186 However, the political decision made during
the early years of the Cold War to avoid wiping out particular
corporations or to allow those corporations to regroup in other
forms does not negate the import of the many actions indicating a
recognition that corporations had violated international law, and,
under that law, could be held liable in multiple ways. As part of
that same Cold War agenda, the Western Powers also commuted
the sentences of many Nazi war criminals, including the indust182. Control Council Law No. 57, Dissolution and Liquidation of Insurance
Companies Connected with the German Labor Front (Aug. 30, 1947), reprinted
in 8 ENACTMENTS AND APPROVED PAPERS OF THE CONTROL COUNCIL AND
COORDINATING COMMITTEE 1 (1947), available at www.loc.gov/rr/frd/Military_
Law/enactments-home.html.
183. See NHIL Brief, supra note 88, at 22.
184. Military Government Law No. 52, Blocking and Control of Property
(May 8, 1945), amended version reprinted in MILITARY GOVERNMENT GAZETTE,
June 1, 1946, at 24. FELDMAN, supra note 176, at 497–98.
185. Id. at 498.
186. BLOXHAM, supra note 113, at 163–69.
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Legacy of Nuremberg
rialists, convicted at Nuremberg. However, such commutation
does not take away from the principle that those industrialists
convicted at Nuremberg committed crimes under international
law.
IV. CONCLUSION
We are not saying that modern-day corporations are the Nazi
era equivalents of I.G. Farben. However, when I.G. Farben began
doing business with the Nazi regime in 1933,187 it likely did not
expect to end up producing in 1943, through its Degussa unit, the
Zyklon B gas that it knew was going to be used for mass
murder.188 Similarly, at the outset of their support for Hitler,
Farben, Krupp, and almost every other Germany company likely
did not expect to use Jews and other persecuted groups as slaves
as part of the Nazi “extermination through work program.”189
Allianz, Germany’s largest insurance company, likewise never
expected in 1933, when its head, Kurt Schmidt, became head of
the Reich Economics Ministry under Hitler, to end up writing the
fire insurance policy to the SS for Auschwitz in case of inmate
revolt.190
But once a corporation starts on a slippery slope in a
relationship with tyrannical regimes—Nazi era or modern-day—
it cannot predict how far it will go. This is the lesson from the
Nazi era. German corporations in the Nazi era were not inherently evil entities that differ from modern-day multinational
corporations, whether they be German, French, Dutch, British,
or American. Just like human beings, corporations are not
inherently good or inherently evil. The lesson of the Nazi era is
that individuals and corporations can do much good, but have the
capacity to do much evil.
In the Seventh Circuit decision in Flomo v. Firestone, Judge
Posner noted that the ATS promotes competition for better
187. United States v. Krauch (I.G. Farben Case), 8 TRIALS OF WAR
CRIMINALS 17 (1948).
188. Bush, supra note 151, at 1134.
189. BENJAMIN B. FERENCZ, LESS THAN SLAVES: JEWISH FORCED LABOR AND
THE QUEST FOR COMPENSATION 22, 193 (1979).
190. FELDMAN, supra, note 176, at 76 (Allianz head became Hitler's first
Economics Minister in 1933), 411–12 (Allianz insured Auschwitz in 1943).
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human rights standards and hurts companies that violate these
standards:
One of the amicus curiae briefs argues, seemingly not tongue in
cheek, that corporations shouldn’t be liable under the Alien
Tort Statute because that would be bad for business. That may
seem both irrelevant and obvious; it is irrelevant, but not
obvious. Businesses in countries that have and enforce laws
against child labor are hurt by competition from businesses
that employ child labor in countries in which employing
children is condoned.191
In a similar vein, Yale law professor Ruth Wedgwood (in an
amicus brief submitted to the Supreme Court on behalf of former
United States and United Nations officials specializing in
counterterrorism) noted that while the majority of businesses
follow the law, the ATS is for the few who don’t:
While amici recognize the respectable record of responsible
American corporations and businesses in attempting to assure
appropriate conduct by their employees and agents abroad, it is
also the case that laws are not written for the good citizen or
altruistic actor, but rather, to thwart the temptations that may
emerge in any human situation.192
Among the numerous amici briefs, one, filed by two German
members of Parliament, stands out. Commenting from their
particular vantage point as present-day elected German government officials, they note: “German enterprises committed some of
the most serious and atrocious violations of human rights of the
twentieth century, including the use of forced labor during the
National Socialist regime.”193 They then conclude:
As representatives of the German people, we have a special
interest in supporting the right of victims of human rights
violations to resort to any jurisdiction that provides an effective
191. 643 F.3d 1013, 1021 (7th Cir. 2011).
192. Supplemental Brief of Former United States Gov’t Counterterrorism
and Human Rights Officials as Amici Curiae Supporting Petitioners at 3, Kiobel
v. Royal Dutch Petrol. Co., 565 U.S. ___, 132 S. Ct. 1738 (2012) (No. 10-1491).
193. Supplemental Brief of Volker Beck & Christoph Strasser, Members of
Parliament of the Federal Republic of Germany as Amici Curiae in Support of
Petitioners at 4, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491).
60
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Legacy of Nuremberg
remedy. Businesses do not require the freedom to commit
human rights violations in order to succeed, nor is it in the
interests of German foreign policy, which prioritizes human
rights accountability, to grant them impunity for such
practices.194
Corporate impunity under international law is both bad policy
and bad law. Corporations are subjects of international law and
should be amenable to civil suits in United States courts when
they are complicit in gross human rights violations.
194. Id. at 14.
61
THE TWO THAT GOT AWAY: FIRST AMERICAN
FINANCIAL CORP. V. EDWARDS AND KIOBEL
V. ROYAL DUTCH PETROLEUM CO.
Jonathan S. Massey*
I.
INTRODUCTION ................................................................. 63
II. THE FIRST AMERICAN CASE AND THE ARTICLE
III LIMITS ON THE CREATION OF PRIVATE
RIGHTS OF ACTION ........................................................... 65
A. The Historical Background of Injury in Fact ................ 67
B. The First American Case ............................................... 71
III. THE KIOBEL CASE AND U.S. TORT LIABILITY
FOR VIOLATIONS OF INTERNATIONAL LAW
OCCURRING ENTIRELY OVERSEAS .............................. 82
A. The Initial Question Presented In Kiobel ..................... 82
B. The Corporate Liability Question ................................. 84
C. Reargument On the Question of Extraterritoriality. ... 91
IV. CONCLUSION...................................................................... 92
I. INTRODUCTION
Given the attention lavished on the landmark ruling,
National Federation of Independent Business v. Sebelius,1
regarding the constitutionality of the Affordable Care Act, it is
easy to overlook the fact that the Court decided some sixty-four
other cases on the merits during the 2011 Term.2 Still, the total
of sixty-five merits cases decided after oral argument was the
lowest total in the past two decades.3 One factor in the relatively
* Partner, Massey & Gail LLP. Mr. Massey is a Supreme Court practitioner and
appellate advocate who submitted amicus briefs in both First American Financial Corp. v.
Edwards and Kiobel v. Royal Dutch Petroleum, from which some of this article is taken.
1. 567 U.S ___, 132 S. Ct. 2566 (2012).
2. Kedar Bhatia, Final October Term 2011 Stat Pack and Summary
Memo, SCOTUSBLOG (June 30, 2012, 7:59 PM), http://www.scotusblog.com/
2012/06/final-october-term-2011-stat-pack-and-summary-memo/.
3. Id.
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low number of merits decisions was the Court’s action in two
cases that were briefed and argued, but not decided: First
American Financial Corp. v. Edwards4 and Kiobel v. Royal Dutch
Petroleum.5
In First American, the Court heard argument on November
28, 2011 but issued a one-sentence order on June 28, 2012
dismissing the writ of certiorari as improvidently granted.6 In
Kiobel, the Court heard argument on February 28, 2012, but
ordered rebriefing on an issue not included in the original grant
of certiorari on March 5, 2012.7 The Kiobel case was restored to
the calendar and will be reargued on the opening day of the
Court’s next Term, October 1, 2012.8
Both First American and Kiobel raised fundamental
questions of vital importance. But for the shadow cast by the
health care litigation, First American and Kiobel would
themselves have been regarded as blockbusters. First American
presented the question of whether a homebuyer who uses real
estate settlement services has standing under Real Estate
Settlement Procedures Act of 1974 (RESPA) to maintain an
action in federal court in the absence of any claim that the
alleged violation affected the price, quality, or other
characteristics of the settlement services provided.9 More broadly
stated, the question was the extent to which the standing
doctrine of Article III limits Congress’s authority to create new
statutory rights enforceable through private rights of action—a
question of great significance for many consumer protection laws
4. 610 F.3d 514 (9th Cir. 2010), cert. granted, 567 U.S. ___, 131 S. Ct.
3022 (June 20, 2011), cert. dismissed, 567 U.S. ___, 132 S. Ct. 2536 (June 28,
2012) (No. 10-708) (dismissing certiorari as improvidently granted).
5. 621 F.3d 111 (2d Cir. 2010), cert. granted, 565 U.S. ____, 132 S. Ct. 472
(Oct. 17, 2011), reh’g granted, 565 U.S. ___, 132 S. Ct. 1738 (Mar. 5, 2012) (No.
10-1491).
6. Order Dismissing Writ of Cert., First Am. Fin. Corp., 567 U.S. ___, 132
S. Ct. 2536 (No. 10-708).
7. Order for Reargument, Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 101491) (ordering rebriefing and restoring to calendar for reargument).
8. Id.; SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2012 (2012),
available at http://www.supremecourt.gov/oral_arguments/argument_
calendars/MonthlyArgumentViewer.aspx?Filename=MonthyArgumentCalOct20
12.html.
9. First Am. Corp., 610 F.3d at 516.
64
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First American and Kiobel
and other regulatory schemes that contain private rights of
action.
In Kiobel, the initial question presented was whether
corporations may be held liable under the 1789 Alien Tort
Statute (ATS), for aiding and abetting a foreign government’s
alleged violations of international law against its own citizens
within its own sovereign boundaries.10 After argument, the Court
ordered the parties to address the antecedent question of
whether the 1789 law has any extraterritorial application at all
to acts occurring entirely overseas, with minimal connection to
the United States.11
Both cases present fundamental questions of law with wide
implications for many other proceedings. The Kiobel case will be
eagerly watched during the 2012 Term. Because the First
American case was dismissed rather than set for reargument, the
Court will not decide the issues raised in First American next
Term.12 But the issues will not go away and will likely reappear
before the Court in a different guise—with new parties and a
new controversy—in the years to come.
II. THE FIRST AMERICAN CASE AND THE ARTICLE III
LIMITS ON THE CREATION OF PRIVATE RIGHTS OF
ACTION
“Under Article III, the Federal Judiciary is vested with the
‘Power’ to resolve not questions and issues but ‘Cases’ or
‘Controversies.’ This language restricts the federal judicial power
‘to the traditional role of the Anglo–American courts.’”13 Central
to the “case” or “controversy” requirement is the concept of
“injury in fact.”14 “In the English legal tradition, the need to
10. Kiobel, 621 F.3d at 124.
11. See Order for Reargument, Kiobel, 565 U. S. ___, 132 S. Ct. 1738 (No.
10-1491).
12. Order Dismissing Writ of Cert., First Am. Fin. Corp., 567 U.S. ___, 131
S. Ct. 2536 (No. 10-708).
13. Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. ___, ___, 131 S.
Ct. 1436, 1441 (2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488
(2009)).
14. Id. at ___, 131 S. Ct. at 1442 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)).
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redress an injury resulting from a specific dispute taught the
efficacy of judicial resolution and gave legitimacy to judicial
decrees.”15 Thus, cases and controversies are limited to the
adjudication of legal rights in the traditional litigation setting.16
The Supreme Court has instructed that “[w]e have always taken
[the case-or-controversy requirement] to mean cases and
controversies of the sort traditionally amenable to, and resolved
by, the judicial process.”17 “The purpose of the case-orcontroversy requirement is to ‘limit the business of federal courts
to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial
process.’”18
Continued adherence to the case-or-controversy requirement of
Article III maintains the public’s confidence in an unelected
but restrained Federal Judiciary. If the judicial power were
“extended to every question under the constitution,” Chief
Justice Marshall once explained, federal courts might take
possession of “almost every subject proper for legislative
discussion and decision.”19
The injury in fact requirement ensures that plaintiffs in
federal court are asserting their own individual rights as opposed
to the kinds of generalized public rights that should be pressed in
the political branches.20 “For the federal courts to decide
15. Id. at ___, 131 S. Ct. at 1441.
16. Id. at ___, 131 S. Ct. at 1442; see Davis v. Fed. Election Comm’n, 554
U.S. 724, 732 (2008) (“Article III restricts federal courts to the resolution of
cases and controversies.” (citing Arizonans for Official English v. Arizona, 520
U.S. 43, 64 (1997))).
17. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) (citing
Muskrat v. United States, 219 U.S 346, 356–57 (1911)).
18. GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S.
375, 382 (1980) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)).
19. Winn, 563 U.S. at ___, 131 S. Ct. at 1442 (quoting 4 PAPERS OF JOHN
MARSHALL 95 (C. Cullen ed., 1984)).
20. See Allen v. Wright, 468 U.S. 737, 750–52 (1982); The Chicago Junction
Case, 264 U.S. 258, 272–73 (1924) (Sutherland, J., dissenting); F. Andrew
Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275,
277 (2008); Ann Woolhandler & Caleb Nelson, Does History Defeat Standing
Doctrine?, 102 MICH. L. REV. 689, 723, 733 (2004); see also Lujan v. Defenders of
Wildlife, 504 U.S. 555, 577 (1992) (distinguishing “the undifferentiated public
interest in . . . compliance with the law” from “an ‘individual right’ vindicable in
the courts”); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
66
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First American and Kiobel
questions of law arising outside of cases and controversies would
be inimical to the Constitution’s democratic character. And the
resulting conflict between the judicial and the political branches
would not, ‘in the long run, be beneficial to either.’”21
A. The Historical Background of Injury in Fact
The question presented in First American was how these
principles of justiciability related to Congress’s authority to
create private rights of action are enforceable in federal court.22
This question requires an examination of the evolution of the
requirement of injury in fact.
The distinction between the standing inquiry and the
substance of a plaintiff’s claim is traceable to Association of Data
Processing Service Organizations v. Camp, a decision for the
Court written by Justice William O. Douglas,23 one of the nation’s
most liberal Justices.24 In Camp, the Court held that a trade
association of data processors and a data processing corporation,
as competitors of national banks, were “aggrieved” persons under
the Administrative Procedure Act and, therefore, had standing to
seek review of a ruling by the Comptroller that national banks
could make data processing services available to other banks and
to banks’ customers.25 Justice Douglas, in reasoning that the
immediate impact was to increase access to the courts, opined
that absence of a legally protectable right to avoid competition
from national banks did not deprive the data processors of
standing.26
224 n.14 (1974) (holding Article III requires plaintiffs “to allege a specific
invasion of [a] right suffered by him”).
21. Winn, 563 U.S. at ___, 131 S. Ct. at 1442 (quoting United States v.
Richardson, 418 U.S. 166, 188–89 (1974) (Powell, J., concurring)).
22. Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010) (citing
Warth v. Seldin, 422 U.S. 490, 500 (1975)), cert. granted, 567 U.S. ___, 131 S.
Ct. 3022 (June 20, 2011), cert. dismissed, 567 U.S. ___, 132 S. Ct. 2536 (June 28,
2012) (No. 10-708).
23. 397 U.S. 150, 151 (1970).
24. See Melvin I. Urofsky, William O. Douglas as a Common Law Judge,
41 DUKE L.J. 133, 133 (1991) (recounting that Justice Douglas “championed the
liberal position on nearly every issue before the Court”).
25. Camp, 397 U.S. at 157.
26. Id. at 154.
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The “legal interest” test goes to the merits. The question of
standing is different. It concerns, apart from the “case” or
“controversy” test, the question whether the interest sought to
be protected by the complainant is arguably within the zone of
interests to be protected or regulated by the statute or
constitutional guarantee in question. . . . That interest, at
times, may reflect aesthetic, conservational, and recreational
as well as economic values. . . . We mention these noneconomic
values to emphasize that standing may stem from them as well
as from the economic injury on which petitioners rely here.
Certainly he who is likely to be financially injured, may be a
reliable private attorney general to litigate the issues of the
public interest in the present case.27
The initial effect of Data Processing was to permit a plaintiff
adversely affected by the entry of a new competitor to bring suit
despite the lack of a claim “founded on a statute which confers a
privilege” against competition.28
However, “[b]y decoupling standing from questions of
substantive law, the Data Processing Court sowed the initial
seeds of doubt regarding Congress’[s] power to create standing
where public rights were not infringed.”29 Judge William Fletcher
of the Ninth Circuit has written that “[m]ore damage to the
intellectual structure of the law of standing can be traced to Data
Processing than to any other single decision.”30 Richard Stewart,
a noted professor of both administrative and environmental law,
as well as a former Assistant Attorney General in charge of the
Environment and Natural Resource Division of the U.S.
Department of Justice, has called Data Processing an
“unredeemed disaster.”31 Data Processing gained this title
because separation of standing and substantive law casts doubt
upon the traditional view that Congress may “define new legal
rights, which in turn will confer standing to vindicate an injury
27. Id. at 153–54 (citations omitted) (internal quotation marks omitted).
28. Id. at 153 (citing Tennessee Elec. Power Co. v. Tennessee Valley Auth.,
306 U.S. 118, 137–38 (1939)).
29. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 394 (3d ed. 2000).
30. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 229
(1988).
31. Richard B. Stewart, Standing for Solidarity, 88 YALE L.J. 1559, 1569
(1979).
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First American and Kiobel
caused to the claimant.”32 Historically, the injury in fact requirement of Article III was thought only to constrain federal judicial
authority to find standing in the absence of a statute; it was not
understood as cabining the legislative branch in fashioning
private causes of action and creating substantive rights
embedded in regulatory schemes.33
In Warth v. Seldin, for example, the Court opined that “[t]he
actual or threatened injury required by Article III may exist
solely by virtue of ‘statutes creating legal rights, the invasion of
which creates standing . . . .’” and that “[e]ssentially, the
standing question in such cases is whether the constitutional or
statutory provision on which the claim rests properly can be
understood as granting persons in the plaintiff’s position a right
to judicial relief.”34 The Court has held that statutes may create
rights that establish standing even if they are “directed at
avoiding circumstances of potential, not actual, impropriety.”35
Additionally, “[w]e have no doubt that if Congress enacted a
statute creating such a legal right, the requisite injury would be
found in an invasion of that right.”36
In Linda R.S. v. Richard D., the Court similarly affirmed
that “Congress may enact statutes creating legal rights, the
invasion of which creates standing, even though no injury would
exist without the statute.”37 And in International Primate
Protection League v. Tulane Educational Fund, the Court
explained that “standing is gauged by the specific common-law,
statutory or constitutional claims that a party presents[]”38 and
that “standing should be seen as a question of substantive law,
answerable by reference to the statutory and constitutional
provision whose protection is invoked.”39 The Court even inferred
32. Vermont Agency of Natural. Res. v. United States ex rel. Stevens, 529
U.S. 765, 773 (2000) (citation omitted).
33. TRIBE, supra note 29, at 394.
34. 422 U.S. 490, 500 (1975).
35. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 224
n.14 (1974).
36. Id. (citing O’Shea v. Littleton, 414 U.S. 488, 493 (1974)).
37. 410 U.S. 614, 617 n.3 (1973) (citation omitted).
38. 500 U.S. 72, 77 (1991).
39. Id. (quoting William A. Fletcher, The Structure of Standing, 98 YALE
L.J. 221, 229 (1988)) (internal quotation marks omitted).
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that the congressional granting of authority to review the
decisions of administrative agencies created new courses of
action for injured plaintiffs.40
These decisions reflect the principle that when Congress
imposes a substantive law obligation on the part of a defendant
to conduct himself in a certain way with respect to a particular
plaintiff, the plaintiff’s allegation of injury arising out of a
violation of her individual rights almost always satisfies standing
requirements.41 That is so because violations of individual rights
invariably cause injuries personal to the plaintiff.42 Some
commentators have gone so far as to argue that the injury in fact
requirement is therefore “superfluous in cases alleging the
violation of a private right.”43 In any event, it is hard to see how
the violation of a private right could not constitute an injury in
fact sufficient for standing. Just as “there is ordinarily little
question” that a person who is the object of government action
has standing to sue to challenge the legality of the action,44 a
person who is the object of private action that violates her
individual rights generally has standing to sue to challenge the
legality of the action.45 In either situation, plaintiffs have
standing to sue to complain about illegal conduct directed at
them.46
40. Sierra Club v. Morton, 405 U.S. 727, 737–38 (1972) (“Broadening the
categories of injury that may be alleged is a different matter from abandoning
the requirement that the party seeking review must himself have suffered an
injury.”).
41. See Int’l Primate Prot. League, 500 U.S. at 77; Linda R.S., 410 U.S. at
617 n.3; Sierra Club, 405 U.S. at 738.
42. See Hessick, supra note 20, at 282 (citing Ashby v. White, 2 Ld. Raym.
938, 955, 92 Eng. Rep. 126, 137 (1702) (Holt, C.J., dissenting) rev’d, 3 Salk. 17,
91 Eng. Rep. 665 (1703)).
43. Id. at 277.
44. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992).
45. Warth v. Seldin, 422 U.S. 490, 500 (1975).
46. See Lujan, 504 U.S. at 561–62; Warth, 422 U.S. at 500.
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B. The First American Case
The First American case arose against this jurisprudential
background. In 1974, Congress enacted RESPA to protect consumers in the market for real estate settlement services.47 The
legislative history of RESPA, including committee reports,
hearings, and a report commissioned from the Department of
Housing and Urban Development, and the Veterans’ Administration, documents rampant schemes by which brokers, escrow
agents, sellers, and settlement attorneys were paid fees for
referring business to settlement service providers, undermining
competition for settlement services and harming consumers.48
RESPA’s stated purposes include “the elimination of kickbacks or referral fees that tend to increase unnecessarily the
costs of certain settlement services.”49 To achieve this goal,
section 8 of RESPA gives consumers a substantive right to a real
estate settlement free from kickbacks or fees for referrals.50
RESPA provides that:
[N]o person shall give and no person shall accept any fee,
kickback, or thing of value pursuant to any agreement or
understanding, oral or otherwise, that business incident to or a
part of a real estate settlement service involving a federally
related mortgage loan shall be referred to any person.51
Section 8 of RESPA also provides that no portion of the charge
for any covered settlement service may go to any person “other
than for services actually performed.”52 Finally, section 8 creates
47. 12 U.S.C. §§ 2601 to 2617 (2006).
48. S. REP. NO. 93–866, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6546;
H.R. REP. NO. 93–1177, at 7 (1974); Real Estate Settlement Costs, FHA Mortgage
Foreclosures, Housing Abandonment, and Site Selection Policies: Hearings
Before the Subcomm. on Housing of the H. Comm. on Banking & Currency, 92d
Cong. 3, 8, 21–22, 53 (1972) [hereinafter 1972 House Hearings]; Mortgage
Settlement Costs: Hearings Before the Subcomm. on Housing and Urban Affairs
of the S. Comm. on Banking, Housing and Urban Affairs, 92d Cong. 14 (1972);
DEP’T OF HOUSING & URBAN DEV. & VETERANS’ ADMIN., REP. ON MORTGAGE
SETTLEMENT COSTS (1972), reprinted in 1972 House Hearings, supra, at 735–
872.
49. 12 U.S.C. § 2601(b)(2) (2006).
50. 12 U.S.C. § 2607 (2006).
51. 12 U.S.C. § 2607(a) (2006).
52. 12 U.S.C. § 2607(b) (2006).
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a private right of action for victims of violations of these antikickback provisions53 and holds violators “liable to the person or
persons charged for the settlement service involved in the
violation in an amount equal to three times the amount of any
charge paid for such settlement service.”54
The plaintiff in First American alleged that First American
Corporation (First American) violated RESPA’s anti-kickback
provisions by paying a real estate settlement firm, Tower City
Title Agency of Cleveland, Ohio, for referrals of title insurance
services to First American.55 First American owns, among other
entities, First American Title Insurance Company, which issues
title insurance policies nationwide.56 In 1998, First American
Title entered into an agreement with Tower City in which Tower
City agreed to refer title insurance underwriting to First
American Title.57 In exchange for the referrals, First American
Title purchased a minority interest in Tower City.58
The plaintiff purchased a home in Cleveland, Ohio in
September 2006.59 Tower City acted as the settlement agent in
the transaction.60 Pursuant to its prior arrangement with First
American Title, Tower City referred the title insurance to First
American Title, which issued a policy to plaintiff.61 When the
plaintiff discovered the kickback, she filed a class action
complaint in district court against First American and First
American Title, alleging that they violated RESPA section 8 by
paying individual title companies such as Tower City in exchange
for exclusive referral agreements with First American Title.62
First American moved to dismiss for lack of subject matter
jurisdiction, arguing that the plaintiff lacked standing to bring
53. See 12 U.S.C. § 2607(d) (2006).
54. 12 U.S.C. § 2607(d)(2) (2006).
55. Edwards v. First Am. Corp., 610 F.3d 514, 515 (9th Cir. 2010), cert.
granted, 567 U.S. ___, 131 S. Ct. 3022 (June 20, 2011), cert. dismissed, 567 U.S.
___, 132 S. Ct. 2536 (June 28, 2012) (No. 10-708).
56. Id. at 516.
57. Id.
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
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First American and Kiobel
her RESPA claim.63 The district court denied First American’s
motion, holding that RESPA gave the plaintiff a “right to be free
from referral-tainted settlement services,” the violation of which
constituted an injury that established her standing.64
On appeal, the Ninth Circuit affirmed the district court’s
holding that the plaintiff had standing to bring her RESPA
claim.65 The court of appeals rejected First American’s argument
that a RESPA plaintiff must allege an overcharge in order to
establish standing to sue for violations of RESPA’s anti-kickback
provisions.66 The Ninth Circuit noted that the legislative history
of RESPA includes findings that violations of RESPA’s antikickback provision “could result in harm beyond an increase in
the cost of settlement services.”67
Oral argument on November 28, 2011, revealed a Supreme
Court that was closely divided on principles of standing and on
the interpretation of RESPA.68 Justice Breyer raised a
hypothetical question that illustrated the differing views on the
Court.69 He imagined a telephone solicitation statute prohibiting
telemarketers from calling between 7 pm and 7 am and imposing
a private right of action with $500 statutory damages for
violations.70 He continued, “[M]y grandmother, who is always
complaining no one ever calls her, loved the telephone call. She
loved it. Best thing happened to her in a month. Okay? Now, can
she sue?”71 First American’s counsel said, “No . . . [i]f she does not
have actual injury, the fact of the statutory violation would not
give rise to standing in that case.”72 But then Justice Breyer
63. Id.
64. Edwards v. First Am. Corp., 517 F. Supp. 2d 1199, 1204 (C.D. Cal.
2007), aff’d in part, rev’d in part, 610 F.3d 514 (9th Cir. 2010), cert. granted, 567
U.S. ___, 131 S. Ct. 3022 (June 20, 2011), cert. dismissed 567 U.S. ___, 132 S.
Ct. 2536 (June 28, 2012) (No. 10-708).
65. First Am. Corp., 610 F.3d at 518.
66. Id.; accord Alston v. Countrywide Fin. Corp., 585 F.3d 753, 755 (3d Cir.
2009); Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, 989 (6th Cir. 2009).
67. First Am. Corp., 610 F.3d at 517.
68. Transcript of Oral Argument, First Am. Fin. Corp., 567 U.S. ___, 132 S.
Ct. 2536 (No. 10-708).
69. Id. at 3–4.
70. Id.
71. Id. at 4.
72. Id.
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changed the hypothetical: “So, in other words, if the FDA bans a
substance on the ground that 98 percent of the people it hurts,
and there’s some kind of automatic recovery, $500, anybody who
bought the substance because it wasn’t supposed to be sold, and
she’s one of the 2 percent that it helped.”73 At this point, First
American’s counsel appeared to switch positions: “In the case in
which someone is exposed to a substance that has—that is
illegal, they might well suffer a harm, and the harm might be the
exposure to the substance.”74
Tellingly, however, no other member of the Court joined
Justice Breyer in discussing an issue that related directly to Data
Processing and the question of whether Congress may confer
injury in fact by statute.75 After Justice Breyer’s series of
hypothetical questions, Justice Ginsburg raised an analogy to
trusts and restitution,76 Justice Sotomayor accused First
American of advancing an incorrect interpretation of RESPA,77
and Justice Scalia commented regarding First American’s
standing argument:
That’s not so extraordinary. It’s what has to be shown—in
Sherman Act cases, right? Contracts and combinations in
restraint of trade are unlawful; but in order to recover under
the Sherman Act, you have to show not only that it was
unlawful, but that you were harmed by it.78
Clearly, there was no consensus among
the Justices
regarding the role of Congress in creating injury in fact.79 Later
in the argument, Justice Breyer proposed another hypothetical
involving a private right of action based on congressional factfinding:
Suppose Congress makes a finding, and this is the finding:
We think that lawyers or whoever is engaged in these who hire
title insurance companies should hire the best one on the
merits, not on the basis of which one will give them the biggest
73.
74.
75.
76.
77.
78.
79.
74
Id.
Id. at 5.
See id. at 3–5.
See id. at 6.
See id. at 7–9.
Id. at 9.
See id. at 3–9.
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First American and Kiobel
kickback. We think that’s so because that will help keep people
secure. Everyone in such—who buys a house will feel more
secure knowing that the market worked there. We can’t prove
who feels insecure and who doesn’t. We think in general they
would. And so, we give everybody the right to recover $500 if
they are injured where the injury consists of being engaged in a
transaction where the title insurance company was not chosen
on the merits but was chosen in whole or in part on the basis of
a kickback. And they write that right into the statute.
So, therefore, there is no doubt that the plaintiff here
suffered the harm that Congress sought to forbid. That harm
was being engaged in a transaction where the title insurance
company was not chosen on the merits but partly in terms of a
kickback.80
First American’s counsel responded that Article III would
prevent a federal court from entertaining a private cause of
action under such a statute.81 Yet, this response, which would
represent a dramatic narrowing of the traditional power of the
legislature in creating substantive rights that confer standing,
drew remarkably little outcry on the bench.82 Justice Kagan did
ask a follow-up question regarding Congress’s ability to regulate
title insurance and create the ability for plaintiffs to sue in
federal court for breach of a “no-kickback” contractual provision
without demonstrating concrete financial loss.83 Justice Kennedy
also was prompted to ask:
[S]uppose the Congress works with economists and concludes
there is a reasonable probability that if there were no
kickbacks, there would be a more competitive market, there
would be lower prices for some of the escrow fees, some of the
collateral fees in addition to the title insurance, and the
plaintiff then alleges that there is this reasonable probability
that there would be a more efficient market, resulting in cost
savings. Would that be enough?84
80.
81.
82.
83.
84.
Id. at 16–17.
See id. at 17.
See id.
See id. at 17–18.
Id. at 24.
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First American demurred, and yet the Justices did not seem
to recognize the significant ramifications of First American’s
argument for congressional power. Havens Realty Corp. v.
Coleman illustrates the traditional view of Congress’s
authority.85 Havens involved alleged violations of section 804(d)
of the Fair Housing Act, which makes it unlawful “[t]o represent
to any person because of race, color, religion, sex, . . . or national
origin that any dwelling is not available for inspection, sale, or
rental when such dwelling is in fact so available.”86 The plaintiffs
in Havens were “testers”—“individuals who, without an intent to
rent or purchase a home or apartment, pose as renters or
purchasers for the purpose of collecting evidence of unlawful
steering practices.”87 The defendant real estate company argued
the plaintiffs lacked standing because they approached the
defendant expecting to receive false information without the
intention to buy or rent a home, and therefore had not been
harmed by the defendant’s misrepresentations.88 The Court
rejected this argument on the basis that the statute created an
“enforceable right to truthful information” and that plaintiffs had
been harmed by virtue of their deprivation of that statutory
right, thereby satisfying Article III’s injury requirement.89
Similarly, in Federal Election Commission v. Akins, the
Court, citing Havens, explained that it had “previously held that
a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to
obtain information which must be publicly disclosed pursuant to
a statute.”90 And in Public Citizen v. Department of Justice, the
Court held that failure to obtain information subject to disclosure
under the Federal Advisory Committee Act “constitutes a
sufficiently distinct injury to provide standing to sue.”91
RESPA creates an enforceable right to receive real estate
settlement services untainted by kickbacks,92 just as the Fair
85.
86.
87.
88.
89.
90.
91.
92.
76
455 U.S. 363 (1982).
42 U.S.C. § 3604(d) (2006).
Havens, 455 U.S. at 373.
Id. at 369, 373–74.
Id. at 373–74.
524 U.S. 11, 21 (1998) (citing Havens, 455 U.S. at 373–74).
491 U.S. 440, 449 (1989).
12 U.S.C § 2607(a) (2006).
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First American and Kiobel
Housing Act at issue in Havens creates an enforceable right to
truthful information regarding the availability of housing
without any further proof regarding the use to which the
consumer would put that information.93 The deprivation of that
statutory right is itself an injury, regardless of whether the
consumer suffers additional consequential damages.94 Requiring
a RESPA plaintiff to show consequential damages to establish
her standing would be the equivalent of requiring a Fair Housing
Act plaintiff to allege a harm beyond the violation of his statutory
rights, a position that Havens explicitly rejected.95 Yet, the Court
did not see the issue that way at oral argument.96
The Court’s evident unwillingness to recognize Congress’s
traditional power to create substantive rights that confer
standing would create a number of anomalies. First, it would
deny the legislature the ability to engage in fact-finding to
identify injuries and appropriate remedies.
Congress’s authority to define injuries that will establish
standing finds additional support in well-established general
principles of judicial deference to legislative judgments.97 The
Court has held that “courts must accord substantial deference to
the predictive judgments of Congress.”98 This deference is due in
part because Congress “is far better equipped than the judiciary
to ‘amass and evaluate the vast amounts of data’” bearing upon
legislative questions.99 The Court in Turner I stated: “We owe
Congress’[s] findings an additional measure of deference out of
93. Havens, 455 U.S. at 373 (quoting Warth v. Seldin, 422 U.S. 490, 500
(1975)).
94. Id. at 373–74.
95. Id.
96. Id. at 370–71 (recognizing issue is whether the claim had become
moot).
97. See, e.g., Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n (Turner I),
412 U.S. 622 (1994) (plurality opinion).
98. Id. at 665; see also Holder v. Humanitarian Law Project, 561 U.S. ____,
130 S. Ct. 2705, 2728 (2010) (“[T]hat judgment, however, is entitled to
significant weight . . . .”); Bartnicki v. Vopper, 532 U.S. 514, 550 (2001)
(Rehnquist, C.J., dissenting) (quoting Turner I, 512 U.S. at 665 (plurality
opinion)).
99. Turner I, 512 U.S. at 665–66 (plurality opinion) (quoting Walters v.
Nat’l Ass’n. of Radiation Survivors, 473 U.S. 305, 331 n.12 (1985)).
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respect for its authority to exercise the legislative power.”100 In
sum, “deference must be accorded to [Congress’s] findings as to
the harm to be avoided and to the remedial measures adopted for
that end, lest we infringe on traditional legislative authority to
make predictive judgments when enacting nationwide regulatory
policy.”101
These principles indicate that the judgments made by
Congress in enacting RESPA are therefore entitled to deference.
Congress found that kickbacks in real estate transactions harm
consumers and that this harm justifies prohibiting all such
kickbacks,102 regardless of an individual consumer’s ability to
establish an overcharge—a burdensome inquiry that may often
be difficult and expensive for an individual consumer to conduct,
particularly given the relatively small financial stake typically at
issue. Indeed, RESPA includes an explicit finding that kickbacks
and referral fees “tend to increase unnecessarily the costs of
certain settlement services.”103 Congress could have decided to
regulate settlement costs directly but instead intentionally and
rationally chose “to regulate the underlying business
relationships and procedures of which the costs are a function.”104
Congress also decided not to require individual RESPA plaintiffs
to prove harm beyond the violation of their statutory right to
services free of kickbacks.105 Congress’s chosen approach is
consistent with the nature of the systemic, anti-competitive
effects of kickbacks, which can become significant in the
aggregate even if they are small and difficult to prove
individually.
Congress’s approach is also consistent with common law
restitution principles that do not require proof of harm beyond
unjust enrichment of the defendant at the hands of the
100. Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n (Turner II), 520
U.S. 180, 196 (1997).
101. Id.
102. 12 U.S.C. § 2601(a)–(b)(2) (2006); S. REP. NO. 93-866, at 3 (1974),
reprinted in 1974 U.S.C.C.A.N. 6546, 6548.
103. 12 U.S.C. § 2601(b)(2) (2006).
104. S. REP. NO. 93-866, at 3 (1974), reprinted in 1974 U.S.C.C.A.N. 6546,
6548.
105. See 12 U.S.C. § 2607 (2006).
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plaintiff.106 In discussing principles of agency law, for example,
the Supreme Court has flatly rejected the argument that a
principal must demonstrate consequential losses from an agent’s
conflict of interest as a prerequisite of suit:
It is immaterial if that appears whether the complainant was
able to show any specific abuse of discretion, or whether it was
able to show that it had suffered any actual loss by fraud or
otherwise. It is not enough for one occupying a confidential
relation to another, who is shown to have secretly received a
benefit from the opposite party, to say, “You cannot show any
fraud, or you cannot show that you have sustained any loss by
my conduct.” Such an agent has the power to conceal his fraud
and hide the injury done his principal. It would be a dangerous
precedent to lay down as law that unless some affirmative
fraud or loss can be shown, the agent may hold on to any secret
benefit he may be able to make out of his agency.107
Another anomaly of refusing to recognize congressionally
conferred rights as “injury in fact” is it would leave
congressionally created causes of action enforceable only in state
courts, which are not bound by Article III.108 The Supreme Court
observed that:
The constraints of Article III do not apply to state courts, and
accordingly the state courts are not bound by the limitations of
a case or controversy or other federal rules of justiciability even
when they address issues of federal law, as when they are
called upon to interpret the Constitution or, in this case, a
federal statute.109
The Court noted that “[a]lthough the state courts are not
bound to adhere to federal standing requirements, they possess
the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own
106. RESTATEMENT (THIRD) OF AGENCY § 8.01 cmt. 5 (2006).
107. United States v. Carter, 217 U.S. 286, 305–06 (1910); see also Michoud
v. Girod, 45 U.S. 503, 553, 557, 559 (1846); RESTATEMENT (THIRD) OF AGENCY
§ 8.01 (2006); GEORGE GLEASON BOGERT ET AL., THE LAW OF TRUSTS AND
TRUSTEES § 543(P), at 382–83 (2d rev. ed. 1993).
108. ASARCO Inc. v. Kadish, 490 U.S. 605, 620 (1989).
109. Id. at 617; see also Pennell v. City of San Jose, 485 U.S. 1, 8 (1988).
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interpretations of federal law.”110 An unwillingness to recognize
statutory violations as sufficient to confer Article III standing
would relegate enforcement of federal statutory schemes to state
courts.
To be sure, Congress does not have a blank check when it
comes to Article III. In particular, Congress may not “abrogate
the Art. III minima.”111 The Supreme Court recognized that
“Congress must at the very least identify the injury it seeks to
vindicate and relate the injury to the class of persons entitled to
bring suit.”112 Thus, Congress may not attempt to bestow a
statutory private right of action without an alleged deprivation of
an individual substantive statutory right. For example, the Line
Item Veto Act at issue in Raines v. Byrd created a private right of
action to challenge the constitutionality of the Act but
established no individual substantive rights.113 Similarly, Lujan
v. Defenders of Wildlife involved a suit brought under the
Endangered Species Act’s citizen suit provision.114 The Court
held that neither that provision nor the substantive portions of
the Act the defendants had allegedly violated created any
“individual rights” and on that basis found no standing.115
But there can be little question that RESPA, in addition to
creating a private right to sue, creates an individual, substantive
statutory right to real estate settlement services free of
kickbacks.116 The invasion of this right creates an injury in fact
that establishes standing. To rule otherwise would accord
Congress no role in the standing inquiry, disregarding Congress’s
judgment that kickbacks in real estate settlement services cause
harms and requiring a completely independent inquiry by courts.
Where Congress has “identif[ied] the injury it seeks to vindicate
110. Kadish, 490 U.S. at 617.
111. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979).
112. Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 516 (2007)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J.,
concurring in part and concurring in judgment)).
113. See Line Item Veto Act, Pub. L. No. 104-130, § 3, 110 Stat. 1200, 1211
(1996); Raines v. Byrd, 521 U.S. 811, 829–30 (1997).
114. 504 U.S. 555 (1992); 16 U.S.C. § 1540(g) (2006).
115. Lujan, 504 U.S. at 577–78 (quoting Stark v. Wickard, 321 U.S. 288,
309–10 (1944)).
116. 12 U.S.C. § 2607(a) (2006).
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and relate[d] the injury to the class of persons entitled to bring
suit,” deference is due to Congress’s judgment that plaintiffs
have suffered a judicially cognizable injury, and a court must
recognize the invasion of the substantive statutory right as
injury in fact. 117
The issue presented in First American has wide-ranging
implications because Congress has used private rights of action
to enforce many regulatory objectives. The Legislature has
enacted numerous statutes to protect consumers from unscrupulous business practices.118 Many of these statutes contain
private rights of action which provide individuals victimized by
prohibited business practices an opportunity to seek redress from
the violator.119 Federal consumer protection statutes often
provide that plaintiffs may recover an amount based on what
they were charged for the unlawful service or an amount
specified in the statute. For example, the Truth in Lending Act
provides that a violator is liable to a victim “in an amount equal
to the sum of . . . any actual damage sustained by such person as
a result of the failure [and] . . . twice the amount of any finance
charge in connection with the transaction.”120 The Fair Credit
Reporting Act states that a violator who obtains a consumer
report under false pretenses or knowingly without a permissible
purpose is liable to a victim in an amount equal to “actual
damages sustained by the consumer as a result of the failure or
$1,000, whichever is greater.”121
The issue presented in First American will therefore persist,
and how the Court addresses it will have broad implications for
many congressional statutory schemes.
117. Envtl. Prot. Agency, 549 U.S. at 516 (quoting Lujan, 504 U.S. at 580
(Kennedy, J., concurring in part and concurring in judgment)) (internal
quotation marks omitted).
118. See, e.g., Truth in Lending Act of 1968 § 130, 15 U.S.C. §§ 1601–1667(f)
(2006) (regulating creditor disclosures); Fair Credit Reporting Act of 1968 § 616,
15 U.S.C. §§ 1681–1681x (2006) (regulating consumer credit reporting
agencies); Fair Debt Collection Practices Act of 1977 § 813, 15 U.S.C. §§ 1692–
1692p (2006) (regulating debt collectors).
119. See, e.g., Truth in Lending Act of 1968 § 130, 15 U.S.C. § 1640 (2006);
Fair Credit Reporting Act of 1968 § 616, 15 U.S.C. § 1681n (2006); Fair Debt
Collection Practices Act of 1977 § 813, 15 U.S.C. § 1692k (2006).
120. 15 U.S.C. § 1640(a)(1)–(2) (2006).
121. 15 U.S.C. § 1681(n)(a)(1)(B) (2006).
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III. THE KIOBEL CASE AND U.S. TORT LIABILITY FOR
VIOLATIONS OF INTERNATIONAL LAW OCCURRING
ENTIRELY OVERSEAS
The Kiobel case was the second important case not decided by
the Supreme Court during the 2011 Term, and it too presented
fundamental legal questions.122
A. The Initial Question Presented In Kiobel
The case was brought by twelve Nigerian citizens alleging
that a Nigerian corporation, Shell Petroleum Development
Company of Nigeria, Ltd. (SPDC), aided and abetted the
Nigerian government in harming Nigerian citizens in Nigeria.123
The district court dismissed SPDC for lack of personal
jurisdiction.124 But the plaintiffs nonetheless pursued their suit
against the English and Dutch companies that indirectly held
stock of SPDC.125
Soon after the original complaint was filed, the Nigerian
government formally objected to the Attorney General of the
United States that the suit would improperly assert “extra
territorial jurisdiction of a United States court . . . for events
which took place in Nigeria;”126 “jeopardize the on-going process
initiated by the current government of Nigeria to reconcile with
the Ogoni people in Nigeria;”127 “compromise the serious efforts of
the Nigerian Government to guarantee the safety of foreign
investments, including those of the United States;”128 and
“gravely undermin[e] [Nigeria’s] sovereignty and plac[e] under
122. Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 132 S. Ct. 472 (Oct. 17, 2011), reh’g granted, 565 U.S. ___, 132 S. Ct.
1738 (Mar. 5, 2012) (No. 10-1491).
123. Id. at 117.
124. Kiobel v. Royal Dutch Petrol. Co., No. 02 Civ. 7618, 2010 WL 2507025,
at *1 (S.D.N.Y. June 21, 2010).
125. Kiobel, 621 F.3d at 123.
126. Joint Appendix at 129, Kiobel v. Royal Dutch Petrol. Co., No. 10-1491
(U.S. Mar. 5, 2012).
127. Id. at 130.
128. Id. at 129.
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strain the cordial relations that exist with the Government of the
United States of America.”129
The corporate defendants moved to dismiss the case for
failure to state a claim under Federal Rules of Civil Procedure
12(b)(6).130 “The district court dismissed plaintiffs’ claims for
aiding and abetting property destruction, forced exile,
extrajudicial killing, and violations of the rights to life, liberty,
security, and association.”131 However, “the district court denied
defendants’ motion to dismiss plaintiffs’ claims for aiding and
abetting arbitrary arrest and detention, crimes against
humanity, and torture . . . .”132 The court certified the order for
interlocutory appeal under 28 U.S.C. § 1292(b).133
The Second Circuit affirmed the district court as to the
dismissed claims and reversed the district court as to the
remaining claims, thereby dismissing all of Plaintiff’s claims in
the amended complaint.134 Judge Cabranes authored the
majority opinion, joined by Chief Judge Jacobs; Judge Leval
concurred in the judgment.135 The majority focused on the
corporate-liability question, framing it as whether “the
customary international law of human rights has . . . to date
recognized liability for corporations that violate its norms.”136
The court of appeals held that international law has not
recognized, in a sufficiently “specific, universal, and obligatory”
manner, a norm of corporate responsibility for violations of the
human rights at issue.137 Judge Leval concurred only in the
judgment.138 He disagreed with the majority’s holding regarding
corporate responsibility but nonetheless agreed that the
129. Id. at 131.
130. Kiobel v. Royal Dutch Petrol. Co., 456 F. Supp. 2d 457, 459 (S.D.N.Y.
2006).
131. Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111, 124 (2d Cir. 2010), cert.
granted, 565 U.S. ___, 132 S. Ct. 472 (Oct. 17, 2011), reh’g granted, 565 U.S. ___,
132 S. Ct. 1738 (Mar. 5, 2012) (No. 10-1491).
132. Id. (citing Kiobel, 456 F. Supp. 2d at 465–67).
133. Id.
134. Id. at 149.
135. Id. at 115.
136. Id. at 125.
137. Id. at 141 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004))
(internal quotation marks omitted).
138. Id. at 149 (Leval, J., concurring).
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plaintiffs’ amended complaint should be dismissed because it
“does not contain allegations supporting a reasonable inference
that [the corporate defendants] acted with a purpose of bringing
about the alleged abuses.”139
B. The Corporate Liability Question
The Supreme Court granted certiorari, initially limited to the
question whether the ATS140 creates a cause of action for a
corporation’s alleged complicity in a foreign government’s
commission of arbitrary arrest and detention, crimes against
humanity, and torture against its own citizens within its own
sovereign boundaries.141 The focus of the case, at least at first,
was on whether there was corporate responsibility for the torts
alleged by the plaintiffs.142
That question had divided lower courts and commentators,
largely because of its fairly recent vintage.143 Until the postWorld War II Nuremberg trials, international law was seen as a
largely state-versus-state affair. Obligations and correlative
duties were primarily confined to states, rather than individuals.144 The Nuremberg trials represent the birth of modern
international law principles applicable to non-state actors.
Accordingly, the lower courts that have previously considered
the corporate liability issue have consulted the Nuremberg experience for guidance.145 Those who support corporate defendants
occasionally over-read the evidence, taking the fact that no
139. Id. at 188.
140. 28 U.S.C. § 1350 (2006).
141. See Kiobel, 621 F.3d 111, cert. granted, 565 U.S. ___, 132 S. Ct. 472
(No. 10-1491).
142. Kiobel, 621 F.3d at 149.
143. Compare id. (holding corporate defendants not subject to ATS liability)
with Doe v. Exxon Mobil Corp., 654 F.3d 11, 15 (D.C. Cir. 2011) (finding
corporations not immune from liability under ATS).
144. See KEVIN JON HELLER, THE NUREMBERG MILITARY TRIBUNALS AND THE
ORIGINS OF INTERNATIONAL CRIMINAL LAW 253 (2011) (“A number of scholars
believe that the [Nuremburg Military Tribunal] trials provide precedent for
corporate criminal responsibility.”)
145. Sarei v. Rio Tinto, P.L.C., 671 F.3d 736, 761 (9th Cir. 2011) (en banc);
id. at 787 (McKeown, J., concurring in part and dissenting in part); Exxon Mobil
Corp., 654 F.3d at 52 n.43 (D.C. Cir. 2011); id. at 83–84 (Kavanaugh, J.,
dissenting in part).
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corporate entities were in fact charged at Nuremberg as evidence
of a settled rule that corporations and similar business entities
could not be charged.146 On the other side, some argue that the
Nuremberg trials embodied a growing norm of corporate
accountability.147 Both extremes are wrong. The truth is that the
Nuremberg and related postwar trials do not demonstrate the
existence of a 1940s international norm of corporate criminal
liability that might serve as precedent in suits against
corporations under the ATS.
Post-World War II trials encompassed a number of
proceedings.148 At the first Nuremberg trial (1945 to 1946) before
the four-power International Military Tribunal (IMT), neither
natural nor legal persons from the private sector were tried.149
The sole business defendant named in the indictment, Gustav
Krupp, was chosen because of the notoriety of his family-owned
arms empire, but only after miscommunication between chief
American prosecutor, Justice Robert Jackson, and his British
counterpart, Attorney General Sir Hartley Shawcross.150 With so
many candidates for inclusion in a first trial, Jackson favored
indicting several industrialists, but the two chiefs settled on one
business figure, neglecting to specify whether their agreement on
“Krupp” meant Gustav Krupp, who led the firm till 1943, or his
son Alfried, who assumed control thereafter.151 Then they agreed
with the father without investigating whether he was physically
able to be tried, which the judges ruled he was not.152 Soon after,
the head of the American economic case, Assistant Attorney
General Francis Shea, was eased out of his job and not
146. Contra Sarei, 671 F.3d at 761 (stating lower courts have found
corporations may be liable for war crimes).
147. Id.
148. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 89–90
(1992) (proceedings listed twenty-four defendants).
149. Id. at 90–93.
150. Id. at 90–92.
151. Id. at 91–93.
152. Id. at 153–54; HARTLEY SHAWCROSS, LIFE SENTENCE: THE MEMOIRS OF
HARTLEY SHAWCROSS 101–02 (1995).
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replaced.153 As a result, there was no private-sector economic
defendant of any sort in the trial.154
The IMT did not try any corporations that were charged, and
it appears that corporate criminal liability was not discussed.155
In the end, even the leading public-sector economic defendant,
former Reichsbank President and Economics Minister Hjalmar
Schacht, was acquitted, with the court providing reasons that
made future international cases against economic actors
extremely difficult.156
The Allies then discussed the possibility of a second
international trial without success.157 Meanwhile, an American
team led by General Telford Taylor began to prepare cases for
presentation to U.S. tribunals either in addition to or instead of
an international trial.158 Taylor’s office ultimately charged 185
defendants in twelve trials from 1946 to 1949, and four of the
trials involved individual defendants—not corporations—from
private businesses.159 No corporations were charged or tried, and
the most recent study of the topic has termed the effort to find in
these trials a precedent for corporate liability “misguided.”160
One Nuremberg panel did permit a lawyer to speak on behalf
of a corporation “from a moral point of view,”161 and then referred
to the possibility of guilt for “private individuals, including
juristic persons,” but the phrase was entirely in dicta.162 The
court promptly said that the issue was immaterial as no
corporations were charged: “[T]he corporate defendant, Farben, is
153. TAYLOR, supra note 148, at 141–43.
154. Id. at 142–43.
155. See generally United States v. Goering (The Nuremberg Trial), 6 F.D.R.
69 (Intl Mil. Trib. 1946).
156. Id.; Jonathan A. Bush, The Prehistory of Corporations and Conspiracy
in International Criminal Law: What Nuremberg Really Said, 109 COLUM. L.
REV. 1094, 1161 (2009); Symposium, Critical Perspectives on the Nuremberg
Trials and State Accountability, 12 N.Y.L. SCH. J. HUM. RTS. 453, 510–11 (1995).
157. HELLER, supra note 144, at 19–20.
158. Id.
159. Id. at 253.
160. Id.
161. United States v. Krauch (I.G. Farben Case), 8 TRIALS OF WAR
CRIMINALS 1081, 1152 (1948).
162. Id. at 1132, 1136.
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not before the bar of this Tribunal and cannot be subjected to
criminal penalties in these proceedings.”163
Today, human rights scholars often praise the four
Nuremberg trials charging individual economic actors, and they
are right to point to the vigorous and skillful American
prosecution efforts.164 But the cases were failures in the
conventional legal sense. The judges displayed indifference and
sometimes hostility to the prosecution’s evidence and seemed to
disbelieve that the German business leaders before them could
possibly have been complicit in mass atrocities.165 In the I.G.
Farben Case, the judges largely ignored the prosecution’s
evidence, especially regarding the firm’s involvement with
Auschwitz, convicting only those defendants whose personal
presence at the camp was conceded166 and acquitting everyone on
charges of involvement with poison gas,167 even though to this
day some courts and ATS supporters misstate these acquittals as
convictions.168
Some advocates of corporate liability have pointed to the
London Charter creating the IMT,169 which provided for charges
against “organizations.”170 These advocates contend that business
corporations are a form of legal organization.171 Therefore, even if
163. Id. at 1153.
164. GEORGE P. FLETCHER, TORT LIABILITY FOR HUMAN RIGHTS ABUSES 164
(2008).
165.
166.
167.
168.
169.
Id.
I.G. Farben Case, 8 TRIALS OF WAR CRIMINALS at 1153–67.
Id. at 1169.
FLETCHER, supra note 164, at 164 (2008).
See Mara Theophila, “Moral Monsters” Under the Bed: Holding
Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v.
Royal Dutch Petroleum Co., 79 FORDHAM L. REV. 2859, 2885 (2011).
170. Charter of the International Military Tribunal art. 9–10, annexed to
The Agreement for the Prosecution and Punishment of The Major War
Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279
[hereinafter London Charter] (establishing the laws and procedures for the
Nuremberg Tribunal).
171. See, e.g., Kiobel v. Royal Dutch Petrol. Co., 621 F.3d 111, 150 (2d Cir.
2010) (Leval, J., concurring), cert. granted, 565 U.S. ___, 132 S. Ct. 472 (Oct. 17,
2011), reh’g granted, 565 U.S. ___, 132 S. Ct. 1738 (Mar. 5, 2012) (No. 10-1491);
see also Brief of Amici Curiae Nuremberg Scholars Omer Bartov et al., at 20,
Kiobel, 565 U.S. ___, 132 S. Ct. 1738 (No. 10-1491) (advocating that business
corporations are a form of legal organizations).
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Nuremberg trials did not charge corporations, they allowed and
implied corporate liability.172 But the evidence makes clear that
the term “organizations” was meant to include only government
agencies and security and party formations.173 As the war ended,
the Allies issued a broad law listing over sixty types of Nazi
Party and government organizations (including all six later tried
at Nuremberg) that were destroyed and banned, with their
property confiscated.174 Organizations are not business entities,
as prosecutors’ illustrations might show; they are meant to
include nothing more than party, government, and security
formations.175 Moreover, the London Charter of August 8, 1945
referred not to verdicts, but to declarations of criminality for
accused organizations.176 Organizations were not tried in the
usual sense at Nuremberg,177 and indeed the Allies did not expect
that there would be any question as to whether Nazi party
entities would be permitted to continue.178
Nor does the governance of German business corporations
during the four years of the Allied occupation support a norm of
international corporate liability. Although some business
managers and directors were ousted from certain companies and
some firms’ property was forfeited in part, these examples do not
support a broad norm of corporate liability.179 The history was far
more complicated than one of systematic legal accountability for
172. See Theophila, supra note 169, at 2896.
173. Kiobel, 621 F.3d at 134 (majority opinion) (discussing IMT’s imposition
of criminal liability on SS and Gestapo but not onto I.G. Farben); see also Joel
Slawotsky, The Conundrum of Corporate Liability Under the Alien Tort Statute,
40 GA. J. INT’L & COMP. L. 175, 184–85 (2011).
174. Control Council Law No. 2 pmbl., Providing for the Termination and
Liquidation of the Nazi Organizations (Oct. 10, 1945), in 1 ENACTMENTS AN
APPROVED PAPERS OF THE CONTROL COUNCIL AND COORDINATING COMMITTEE 131–
32 [hereinafter Control Council Law No. 2], available at www.loc.gov/rr.frd/
Military_Law/Enactments/law-index.pdf.
175. See, e.g., BRADLEY F. SMITH, THE AMERICAN ROAD TO NUREMBERG: THE
DOCUMENTARY RECORD 1944–1945 36, 162, 173 (1982); Letter from Robert H.
Jackson, U.S. Chief of Counsel to President Harry Truman (June 7, 1945),
available at http://avalon.law.yale.edu/imt/imt_jack01.asp.
176. London Charter, supra note 170, at 1548.
177. See Control Council Law No. 2, supra note 174 at 132.
178. Sheldon Glueck, The Nuernburg Trial and Aggressive War, 59 HARV. L.
REV. 396, 406–07 (1946).
179. See HELLER, supra note 144, at 313–30.
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a culpable sector of Germany.180 At differing times and for a
variety of reasons, occupation officials permitted, protected, and
even nurtured business output and companies.181 The major
banks in the western zones were broken into regional units182 but
were quickly allowed to merge into zone-wide institutions, and
eventually into nationwide entities in 1957.183 Alfried Krupp was
not only given back the factories and fortune that Nuremberg
judges had seized as ill-gotten fruits of international crime, but
also was quietly allowed to re-enter the arms industry.184 Many
large and most small firms were largely untouched.185
Atop the multiplicity of administrative and governing bodies
was the Allied Control Council, a body authorized to issue rules
governing all four zones consisting of the four commanders-inchief or military governors or their deputies.186 Supporters of
corporate liability have tried to gain traction for their position by
highlighting a decree known as Control Council Law No. 9 (Nov.
30, 1945), providing for the breakup of the I.G. Farben company
and the seizure and dispersal of its property.187 The reality,
however, is that the dissolution of I.G. Farben was political
rather than legal in character. The choice of I.G. Farben as a
target and the decision to dissolve it were not legally weighed
and determined, but had been contemplated by the U.S. during
the war.188 I.G. Farben was deeply involved in the German war
effort and collaborated closely with Nazi officials.189 Its dissolu180. See generally id. at 131.
181. See generally id.
182. Dresdner Bank from 1872 to 2009, COMMERZBANK, https://www.
commerzbank.com/media/konzern/neue_commerzbank/marke/geschichte/
dresdner_bank_history.pdf (last visited Sept. 13, 2012).
183. See generally, HELLER, supra note 144 at 313–30.
184. RAUL HILBERG, German Railroads/Jewish Souls, in SOCIETY 14:1, at
60–74 (1976), reprinted in SOCIETY 35.2, at 162–74 (1998).
185. LUCIUS D. CLAY, DECISION IN GERMANY 330-32 (1950).
186. Bush, supra note 156, at 118.
187. Control Council Law No. 9 pmbl., Seizure of Property Owned by I.G.
Farbenindustrie and the Control Thereof (Nov. 30, 1945), in 1 ENACTMENTS AN
APPROVED PAPERS OF THE CONTROL COUNCIL AND COORDINATING COMMITTEE 225–
305 [hereinafter Control Council Law No. 9], available at www.loc.gov/rr.frd/
Military_Law/Enactments/law-index.pdf.
188. Bush, supra note 156, at 1114 n.51.
189. PETER HAYES, INDUSTRY AND IDEOLOGY: I.G. FARBEN IN THE NAZI ERA
378 (1987).
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tion was not based on legal criteria. There were no hearings,
findings of fact, or evidentiary records.190 Rather, it was an
executive and political decision agreed by the four commanders
acting as part of their war-making authority.191 The Allies knew
that the firm had manufactured extensive war material and been
a critical part of the Nazi war effort, and was therefore
dangerous to the Allies.192 Its complicity with crimes against
humanity or Auschwitz slave labor or poison gas was only being
pieced together in November 1945 and was not relevant to the
decision to dissolve.193 Rather, the dissolution of I.G. Farben was
akin to the disposition of the Nazi Party and military
organizations, the other large institutions that were the subject
of Control Council proceedings in the same period early in the
occupation.194
In fact, the dissolution of I.G. Farben was less significant
than the disbanding of the party and the military. Very quickly,
the I.G. Farben dissolution was forgotten,195 and three huge
successor firms emerged—BASF, Hoechst, and Bayer.196 The
firms were permitted to trade with each other and with their
former partners and subsidiaries including Degesch, the firm at
the center of Zyklon B production.197 They paid I.G. Farben’s
shareholders the face value of the portions of its capital that each
successor took over, so that the seizure and dissolution of I.G.
Farben actually involved no financial penalty to its owners.198
The successor firms also saw to it that employees of the former
190. Id.
191. Id.
192. OFFICE OF MILITARY GOV’T, DIVISION OF INVESTIGATION OF CARTELS AND
EXTERNAL ASSETS, REPORT OF THE INVESTIGATION OF I.G. FARBENINDUSTRIE A.G.
ch. 2 (1945).
193. HAYES, supra note 189.
194. Id.
195. Id.
196. HAROLD ZINK, THE UNITED STATES IN GERMANY 1944–1955, at 266–67
(1957).
197. PETER HAYES, FROM COOPERATION TO COMPLICITY: DEGUSSA IN THE
THIRD REICH 299–300 (2004).
198. RAYMOND G. STOKES, DIVIDE AND PROSPER: THE HEIRS OF I.G. FARBEN
UNDER ALLIED AUTHORITY 189 (1988).
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First American and Kiobel
Farben, including those imprisoned at Nuremberg, were given
pensions or new employment.199
C. Reargument On the Question of Extraterritoriality.
At oral argument on February 28, 2012, the Justices alluded
briefly to the historical evidence regarding a corporate liability
norm, but they quickly moved on to broader questions of
extraterritoriality of the U.S. statute at issue, the ATS. Justice
Ginsburg asked, “What happened to I.G. Farben? I thought that
it was dissolved and its assets taken.”200 She also recognized that
“there was no civil liability adjudicated in Nuremberg. It was
about criminal.”201
But it soon became clear that the Court’s concern was in fact
more fundamental—whether ATS authorized any tort liability at
all for the events at issue.202 Given the nature of the lawsuit—a
suit by twelve Nigerian plaintiffs against Dutch and English
corporate entities based on actions of their subsidiary that
occurred in Africa—the concern about extraterritoriality was
understandable.203 As Justice Alito commented to counsel for the
plaintiffs:
[T]he first sentence in your brief in the statement of the case is
really striking: “This case was filed by . . . twelve Nigerian
Plaintiffs who alleged . . . that Respondents aided and abetted
the human rights violations committed against them by the
Abacha dictatorship . . . in Nigeria between 1992 and 1995.”
What does a case like that—what business does a case like that
have in the courts of the United States?204
The ATS dates back to 1789.205 Justice Alito wondered, “Do you
really [think that] the first Congress wanted victims of the
199. STEPHAN H. LINDNER, INSIDE IG FARBEN: HOECHST DURING THE THIRD
REICH 350–65 (Helen Schoop trans., 2008).
200. Transcript of Oral Argument at 35, Kiobel v. Royal Dutch Petrol. Co.,
565 U.S. ___, 132 S. Ct. 472 (2011) (No. 10-1491) [hereinafter Kiobel Transcript]
(argued Feb. 28, 2012).
201. Id. at 36.
202. See id. at 8–12.
203. See id.
204. Id. at 11 (alterations in original) (citation omitted).
205. See Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute,
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French Revolution to be able . . . to sue French defendants in the
courts of the United States?”206
The Justices seemed troubled by the extraordinary nature of
the extraterritorial assertion of U.S. law in this context. Justice
Alito observed, “Well, there’s no particular connection between
the events here and the United States. So, I think the question is
whether there’s any other country in the world where these
plaintiffs could have brought these claims against the
Respondents.”207 Chief Justice Roberts added, “[I]f there is no
other country where this suit could have been brought,
regardless of what American domestic law provides, isn’t it a
legitimate concern that allowing the suit itself contravenes
international law?”208
A week after oral argument, the Court directed the parties to
file supplemental briefs on the question: “Whether and under
what circumstances the Alien Tort Statute, 28 U.S.C. §1350,
allows courts to recognize a cause of action for violations of the
law of nations occurring within the territory of a sovereign other
than the United States.”209 The Court’s questions regarding
extraterritoriality will be addressed on the first day of the new
Term, when the case is reargued on October 1, 2012.210
IV. CONCLUSION
The Supreme Court’s blockbuster decisions are digested and
debated by pundits, scholars, and practitioners alike. But very
often the cases that the Court does not decide escape the
attention they deserve. Last Term, both First American and
Kiobel presented fundamental questions of wide significance that
106 COLUM. L. REV. 830, 832 (2006) (explaining ATS was “[o]riginally a clause of
the Judiciary Act of 1789 . . .”).
206. Transcript of Oral Argument at 12, Kiobel, 565 U.S. ___, 132 S. Ct. 472
(No. 10-1491).
207. Id. at 7.
208. Id. at 8.
209. Order for Reargument, Kiobel v. Royal Dutch Petrol. Co., 565 U.S. ___,
132 S. Ct. 1738 (2012) (No. 10-1491).
210. SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2012 (Aug. 13,
2012) available at http://www.supremecourt.gov/oral_arguments/argument_
calendars/MonthlyArgumentViewer.aspx?Filename=MonthyArgumentCalOct20
12.html.
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the Court began to analyze but did not resolve. During the next
Term, we will learn the Court’s answers to the issues raised by
Kiobel. We will need to wait longer to discover the Court’s
approach to the Article III issues presented by First American.
But given the timelessness of those issues, we can be assured
that they, too, will eventually be the subject of a decision by the
Supreme Court.
93
OF LEAKERS AND LEGAL BRIEFERS: THE
MODERN SUPREME COURT LAW CLERK
Todd C. Peppers*
I.
II.
III.
IV.
INTRODUCTION ................................................................. 95
A BRIEF HISTORY OF THE RISE OF THE
SUPREME COURT LAW CLERK ....................................... 99
THE MODERN SUPREME COURT LAW CLERK.......... 107
CONCLUSION.................................................................... 108
I. INTRODUCTION
In the weeks leading up to the announcement of the Supreme
Court’s decision in the historic “Obamacare” case,1 news
commentators and legal scholars frantically searched for clues or
leaks regarding the Justices’ votes. Despite their spirited
attempts to unearth information regarding the pending case,
Harvard Law School Professor Jack Goldsmith suggested that
the efforts were in vain.2 In an article entitled Temple of Silence:
Why SCOTUS Leaks Less than the CIA, which was published in
the weeks before the Obamacare decision was announced,
Goldsmith explained how the unique institutional rules and
practices of the Supreme Court made it less likely to be the
victim of leaks than other federal branches and agencies.3
* Todd C. Peppers is a visiting professor of law at the Washington and Lee
School of Law and the Henry H. and Trudye H. Fowler Associate Professor of
Public Affairs at Roanoke College. He is the author of Courtiers of the Marble
Palace: The Rise and Influence of the Supreme Court Law Clerk and the coeditor of In Chambers: Stories of Supreme Court Law Clerks and Their Justices.
He would like to thank Professor Chad Oldfather of Marquette Law School for
providing feedback on the article, and Gabby Peppers for editing it.
1. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___, 132 S. Ct. 2566
(2012).
2. Jack Goldsmith, Temple of Silence: Why SCOTUS Leaks Less than the
CIA, NEW REPUBLIC (June 23, 2012, 12:00 AM), http://www.tnr.com/article/
politics/magazine/104219/jack-goldsmith-SCOTUS-Leaks-CIA.
3. Id.
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In his article, Goldsmith—a former law clerk for Justice
Anthony Kennedy—declared that he was not worried that the
young law school graduates, who assisted the nine individual
Justices, might be seduced by the press into divulging secrets:
The [J]ustices’ law clerks are sternly warned against leaking
each summer by Chief Justice John Roberts, and they are
intensely loyal to their bosses, all of whom despise breaches of
confidence. . . .
....
Law clerks also have a personal incentive to keep quiet.
After one year at the Court, clerks can fetch hundreds of
thousands of dollars in signing bonuses from law firms and are
all but guaranteed successful careers. Leaking the Court’s
decisions is one of the few ways to screw up these prospects.
The leaker would have a hard time obtaining or keeping a
license to practice law. And he or she would establish a
reputation for irresponsible gabbing in a profession that places
a super-high premium on the ability to keep confidences. No
clerk wants to take these risks, especially since the chance of
getting caught is relatively high.4
Curiously, Goldsmith did not acknowledge that the Court
itself had taken a series of steps to combat leaks by law clerks,
starting with an informal investigation of leaks in 1973 by
Associate Justices William H. Rehnquist and Potter Stewart,5
and culminating in the adoption of the code of conduct for
Supreme Court law clerks in 1987.6 Moreover, Goldsmith’s
analysis of the incentives against law clerk leaks failed to
consider the unique circumstance in which a Justice might
conceivably “instruct” his or her law clerk to leak information
4. Id. Even before the turmoil surrounding leaks about internal Court
deliberations in the Obamacare decision, however, not everybody had
completely subscribed to Goldsmith’s arguments about law clerk incentives.
See Christopher Shea, Why Don’t Supreme Court Clerks Leak?, WALL ST. J.
(June 27, 2012, 11:25 AM), http://blogs.wsj.com/ideas-market/2012/06/27/whydont-supreme-court-clerks-leak/.
5. Memorandum from William Rehnquist and Potter Stewart, Assoc.
Justices, to the Conference (June 18, 1973) (on file with the Washington and
Lee Law School Library).
6. DAVID M. O’BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN
POLITICS 127 (Aaron Javsicas ed., 9th ed. 2011).
96
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Supreme Court Law Clerks
about internal court deliberations. Nor did it consider past
instances when law clerks were believed to have leaked
information regarding internal court deliberations in violation of
the duty of confidentiality owed to their Justices.7 Finally,
Goldsmith seemed unaware of whispers that Supreme Court law
clerks had already leaked information about the pending case.8
Based on this combination of institutional practices and
individual incentives, Goldsmith concluded the “Marble Palace”
would remain silent as a tomb: “Washington’s most reliable
keepers of secrets won’t be its national security officials, but its
[J]ustices.”9 Of course, Goldsmith did not argue that the Supreme
Court never laid bare its secrets.10 The implication, however, was
that the Court guarded its secrets carefully and jealously, and
that any information surrounding the pending decision or the
Court’s behind-the-scenes deliberations would remain within its
impregnable walls.11
Those who read and agreed with Goldsmith’s article could
not have been more astonished when, in the days after the
Supreme Court announced its healthcare decision, a historic
7. See generally John B. Owens, The Clerk, the Thief, His Life as a Baker:
Ashton Embry and the Supreme Court Leak Scandal of 1919, 95 NW. U. L. REV.
271 (2000) (discussing the most infamous example of an alleged leak of a
pending case decision, which involved law clerk Ashton Fox Embry, the longtime law clerk to Justice Joseph McKenna). In more modern times, a former
Blackmun law clerk wrote a tell-all book about his year at the Court. See
EDWARD LAZARUS, CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE
EPIC STRUGGLES INSIDE THE SUPREME COURT (1998). Several law clerks have
leaked information about the Court’s deliberations in Bush v. Gore. See David
Margolick et al., The Path to Florida, VANITY FAIR, Oct. 2004, at 310, 319–20,
available at http://thewe.cc/thewei/&_/pdf/us_court_decision/bush_v_gore_1.pdf.
Although the leak was a clear breach of the ethical rules surrounding law clerk
confidentiality, one of the former clerks had a ready excuse: “We feel that
something illegitimate was done with the Court’s power, and such an
extraordinary situation justices breaking an obligation we’d otherwise honor.”
Id. at 320.
8. See Mark Tushnet, Reasons for Thinking that Law Mattered,
BALKINIZATION (July 3, 2012, 8:35 PM), http://balkin.blogspot.com/2012/07/
reasons-for-thinking-that-law-mattered.html (suggesting a law clerk leaked
information regarding status of Affordable Care Act decision).
9. Goldsmith, supra note 2.
10. See id.
11. See id.
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breach of Court confidentiality occurred. In a scoop that sent
cable news shows abuzz, CBS news reporter Jan Crawford
revealed that Chief Justice John G. Roberts, Jr. had changed his
mind in the Obamacare decision and decided to join the liberal
block of the Court in upholding the federal legislation.12 What
made Crawford’s report so remarkable was the amount of
information she obtained. Not only did Crawford provide details
about the Chief Justice’s decision to change his vote, but also the
internal lobbying which took place by conservative Justices—
primarily Anthony Kennedy—to woo back the wayward Chief.13
All-in-all, the story represented one of the most detailed leaks
about the behind-the-scenes operations of the Supreme Court
since the publication of Bob Woodward and Scott Armstrong’s
book, The Brethren: Inside the Supreme Court—a journalistic
tour de force which rocked the Supreme Court.14
With the release of Crawford’s scoop, Washington insiders,
journalists, and bloggers turned their attention to solving the
tantalizing mystery of who leaked the Court’s secrets. The chief
suspects included Justices Anthony Kennedy, Antonin Scalia,
Clarence Thomas, Ginni Thomas (the wife of Justice Thomas and
a conservative political activist), and the law clerks themselves.15
12. Face the Nation (CBS News television broadcast July 1, 2012),
available at http://www.cbsnews.com/8301-3460_162-57464549/robertsswitchedviews-to-uphold-health-care-law/.
13. Id.
14. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE
SUPREME COURT (1979).
15. See Sam Baker, Supreme Court Healthcare Ruling Leaks Have DC
Buzzing: Who is the Culprit?, HEALTHWATCH (July 4, 2012, 6:00 AM),
http://thehill.com/blogs/healthwatch/legal-challenges/236197-supreme-courttalk-has-dc-buzzing-who-is-the-leaker; Orin Kerr, Who Leaked?, THE VOLOKH
CONSPIRACY (July 1, 2012, 5:43 PM), http://www.volokh.com/2012/07/01/wholeaked/; Charles Lane, Slimy Leaks about John Roberts at Supreme Court,
WASH. POST. (July 3, 2012, 11:18 AM), http://www.washingtonpost.com/blogs/
post-partisan/post/slimy-leaks-about-john-roberts-at-supreme-court/2012/07/03/
gJQAPq9mKW_blog.html; Matt Negrin, Roberts’ Switch on Health Care Signals
a Leaky Supreme Court, ABC NEWS, July 2, 2012, http://abcnews.go.com/
Politics/OTUS/chief-justice-john-robertss-switch-obamacare-healthcare/story?id=16698557#.UDkC_EL3DR0; Elspeth Reeve, Seven Theories About
Who the Supreme Court Leaker Was, ATLANTIC WIRE (July 3, 2012),
http://www.theatlanticwire.com/politics/2012/07/seven-theories-about-supremecourt-leaker/54174/; Felix Salmon, When the Supreme Court Leaks, REUTERS
(July 2, 2012), http://blogs.reuters.com/felix-salmon/2012/07/02/when-the-
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Supreme Court Law Clerks
While we are likely never to know the source of the leak, the
consistent focus on the law clerks as potential culprits raises an
interesting question for students of the Supreme Court—who are
these clerks, and how did they rise to such levels of access and
influence?
II. A BRIEF HISTORY OF THE RISE OF THE SUPREME
COURT LAW CLERK
Supreme Court law clerks have not always been a permanent
part of the Court, and they certainly were not institutional actors
who held any position of authority during the Supreme Court’s
first 150 years of existence. In fact, the resources allocated to the
Supreme Court during its first decades seemed to confirm
Alexander Hamilton’s claim that the Court was the “least
dangerous branch” of the federal government.16 From 1810 to
1860, the Court itself was housed in a “small, damp, and poorly
lighted” chamber in the basement of the Capitol building, and the
entire Court staff was composed of the clerk of the Court, the
official Court reporter, and the marshal of the Court.17 While the
Justices finally got a new home in the old Senate chambers in
1860, and were given personal servants (eventually called
messengers) in 1867, the Court remained a small institution
throughout the nineteenth century.18
In January of 1882, Horace Gray, former Chief Justice of the
Massachusetts Supreme Judicial Court, was confirmed as the
newest member to the United States Supreme Court.19 Gray
could not have been pleased by the conditions of his new post,
with the Court’s elderly Justices staggering under the weight of
supreme-court-leaks/; Sabrina Siddiqui, John Roberts’ Switch on Obamacare
Sparks Fascination with Supreme Court, Possible Leaks, HUFFINGTON POST
(July 2, 2012, 8:53 PM), http://www.huffingtonpost.com/
2012/07/02/justice-roberts-obamacare-supreme-court-leaks_n_1644864.html.
16. THE FEDERALIST NO. 78 (Alexander Hamilton).
17. THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES
118–19 (Kermit L. Hall ed., 2d ed. 2005).
18. Id.; 5 CARL B. SWISHER, HISTORY OF THE SUPREME COURT OF THE UNITED
STATES: THE TANEY PERIOD, 1836–1864 (1974).
19. TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND
INFLUENCE OF THE SUPREME COURT LAW CLERK 43–44 (2006) [hereinafter
COURIERS OF THE MARBLE PALACE].
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its rapidly expanding docket while having their public demands
for assistance ignored by Congress.20 Following his practice on
the Supreme Judicial Court, Gray immediately dug into his own
purse and hired a Harvard Law School graduate to work as his
law clerk.21 The young man’s name was Thomas Russell, and he
was selected by Gray’s half-brother, Harvard Law School
Professor John Chipman Gray, to work for the Justice.22
Until his retirement in 1902, Gray continued to hire Harvard
men on a yearly basis.23 Former Gray law clerk, Samuel
Williston, who subsequently achieved fame as a contracts
professor at Harvard Law School, explained that “[t]he secretary
was asked to do the highest work demanded of a member of the
legal profession—that is the same work which a judge of the
Supreme Court is called upon to perform.”24 The clerks reviewed
the case materials and legal briefs filed with the Court, and after
oral argument, met with the Justice to discuss the pending
cases.25 The clerks were not expected to merely parrot back
Gray’s own views.26 Williston recalled that the Justice “invited
the frankest expression of any fresh idea of his secretary . . . and
welcomed any doubt or criticism of his own views,”27 while former
Gray law clerk, Langdon Parker Marvin, added that Gray “rather
astonished me early in the year by saying ‘How do you think it
ought to be decided.’”28
In 1886, Congress finally authorized the individual Justices
to hire stenographers to assist with the work of the Court, and by
the 1890’s all nine Justices had used the allocated funds to hire
20. Id. at 39–42.
21. Todd C. Peppers, Birth of an Institution: Horace Gray and the Lost Law
Clerks, in IN CHAMBERS: STORIES OF SUPREME COURT LAW CLERKS AND THEIR
JUSTICES 19, 24–25 (Todd C. Peppers & Artemus Vard eds., 2012) [hereinafter
Birth of an Institution].
22. Id. at 17, 24–25.
23. Id. at 47.
24. Samuel Williston, Horace Gray, in 8 GREAT AMERICAN LAWYERS 158–59
(William Draper Lewis ed., 1909).
25. Id.
26. See Birth of an Institution, supra note 21, at 20–21.
27. SAMUEL WILLISTON, LIFE AND LAW: AN AUTOBIOGRAPHY 93 (1940).
28. THE REMINISCENCES OF MARY V. AND LANGDON P. MARVIN (1972),
microformed on Oral History Collection (on file with the Harvard College
Library).
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Supreme Court Law Clerks
personal assistants.29 For the majority of the Justices, however,
the assistants (often older attorneys or stenographers) were
assigned secretarial, rather than legal duties, and remained with
the Justices for years.30 Few followed the “Gray model” of hiring
recent law school graduates on a yearly basis to do legal research
and writing.31
When Oliver Wendell Holmes, Jr. replaced Horace Gray in
1902, Holmes followed Gray’s example and continued to hire
Harvard Law School graduates (initially selected by Professor
John Chipman Gray, then Harvard Law School Professor Felix
Frankfurter) as his “personal secretaries.”32 The young men
reviewed certiorari petitions and prepared memoranda regarding
the appeals, but they also helped Holmes with basic accounting
and bookkeeping matters and served as social companions to the
Justice.33 Holmes’ former legal secretary, Harvey Hollister
Bundy, once explained that the Justice “wanted some gaiety and
youth around. He wanted his secretary to dine out every night
and come back and tell him the latest gossip. That’s right, it was
one of the ways he had of keeping young.”34 And when Louis D.
Brandeis joined the Supreme Court in 1916, he also adopted the
Gray model—perhaps not a surprising decision given the fact
that Brandeis himself clerked for Gray on the Massachusetts
Supreme Judicial Court—and had his law clerks perform legal
research and assist in drafting opinions.35 However, Brandeis
insisted that he alone review certiorari petitions since it involved
29.
30.
31.
32.
Birth of an Institution, supra note 21, at 18–19.
Id. at 23.
Id.
See id. at 19, 23; I. Scott Messinger, The Judge as Mentor: Oliver
Wendell Holmes, Jr., and His Law Clerks, 11 YALE J.L. & HUMAN. 119, 133–48
(1999).
33. COURIERS OF THE MARBLE PALACE, supra note 19, at 56–60. For a
wonderful account of the unique relationship that the legal secretaries enjoyed
with Justice Holmes, see Messinger, supra note 32.
34. THE REMINISCENCES OF HARVEY H. BUNDY (1972), microformed on
Columbia University Oral History Collection (1972) (on file with the Butler
Library, Columbia University).
35. COURIERS OF THE MARBLE PALACE, supra note 19, at 62–66. See also,
Todd C. Peppers, Isaiah and His Young Disciples: Justice Louis Brandeis and
His Law Clerks, in IN CHAMBERS: STORIES OF SUPREME COURT LAW CLERKS AND
THEIR JUSTICES 67–87 (Todd C. Peppers & Artemus Ward eds., 2012).
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deciding on the merits of the case.36
Additionally, resources were allocated to the Supreme Court
in 1919, and each Justice was authorized to hire both a law clerk
and a stenographer.37 With this new institutional resource, the
Justices, facing an ever-growing docket, slowly started changing
their chamber practices and started assigning more substantive
job duties to their clerks.38 In the 1930s and 1940s, more Justices
started asking their law clerks to review certiorari petitions and
prepare memoranda regarding the appeals, and by the late
1950s, the drafting of certiorari memoranda had become a
regular part of the law clerks’ daily lives.39
A norm still existed, however, regarding the drafting of
judicial opinions, and those Justices who had their law clerks
prepare opinion drafts—including Tom C. Clark, Frank Murphy,
and Fred Vinson—were considered to be the weaker members of
the Court, whose reliance on their clerks was snidely commented
on by the other Justices.40 The institutional norm regarding
opinion writing weakened, however, as new Justices joined the
Court. By the 1960s, only a few of the older Justices—such as
Hugo Black and William O. Douglas—were preparing their own
opinion drafts;41 by the 1980s, the practice had virtually died
away.42
Only a handful of Court watchers seemed concerned about
the changing role of the law clerks or its impact on the work of
the Court, and they were, ironically, themselves former Supreme
Court clerks. They included William Rehnquist, who clerked for
former Supreme Court Justice Robert H. Jackson before
becoming a private practitioner in Phoenix, Arizona, and John
Frank, who had once clerked for Justice Hugo Black.43 For
36.
37.
38.
39.
40.
COURIERS OF THE MARBLE PALACE, supra note 19, at 63.
Id. at 84.
Id. at 84–87.
Id. at 143 Table 4.1.
BERNARD SCHWARTZ, DECISION: HOW THE SUPREME COURT DECIDES
CASES 53 (1996).
41. COURIERS OF THE MARBLE PALACE, supra note 19, at 143 Table4.1.
42. Id. at 190 Table 5.1.
43. William H. Rehnquist, Robert H. Jackson: A Perspective Twenty-Five
Years Later, 44 ALB. L. REV. 533, 533 (1980); Myrna Oliver, John Frank, Lawyer
Behind Miranda Rights, Dies at 84, SEATTLE TIMES, Sept. 15, 2002,
http://community.seattletimes.nwsource.com/archive/?date=20020915&slug=obi
102
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Supreme Court Law Clerks
Frank, law clerk participation in opinion writing produced bland
legal opinions which lacked “the Holmes epigram, the Black way
with facts, the Frankfurter vocabulary, the Brandeis footnote,
[and] the Stone pragmatism.”44 For Rehnquist, requiring the
clerks to review certiorari petitions and draft certiorari
memoranda raised the possibility that liberal law clerks might
try to manipulate their conservative Justices in voting in a more
liberal fashion.45
Collectively, the worries of Frank and Rehnquist encompass
the different types of influence that law clerks might potentially
wield. At one end of the spectrum is stylistic influencewhere
the clerks review the work product of the Justices and make edits
regarding grammar, word choice, and sentence structure.46 At
the other end is substantive influence—where the clerks affect
how the Justices vote and how constitutional doctrine is
crafted.47 Not all substantive influence is troubling. Law clerks
can act as sounding boards for their Justices, and they certainly
can serve as conduits for new ideas bubbling up from law schools.
The concern over substantive influence arises when the Justices
abdicate their judicial powers under Article III of the
Constitution and permit their law clerks to make decisions about
pending certiorari petitions or the merits of cases before the
Court.48
t15.
44. John P. Frank, Fred Vinson and the Chief Justiceship, 21 U. CHI. L.
REV. 212, 224 (1953).
45. William H. Rehnquist, Who Writes Decisions of the Supreme Court,
U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74–75, available at http://www.
usnews.com/opinion/articles/2008/12/09/william-rehnquist-writes-in-1957-onsupreme-court-law-clerks-influence.
After his initial article generated a
backlash from other former law clerks, Rehnquist backtracked from his claims
of undue influence by liberal clerks. See William H. Rehnquist, Another View:
Clerks Might ‘Influence’ Some Actions, U.S. NEWS & WORLD REP., Feb. 21, 1958,
at 116.
46. For articles which examine the stylistic influence of law clerks, see
Jeffrey S. Rosenthal & Albert H. Yoon, Judicial Ghostwriting: Authorship on
the Supreme Court, 96 CORNELL L. REV. 1307 (2011); Paul J. Wahlbeck et al.,
Ghostwriters on the Court? A Stylistic Analysis of U.S. Supreme Court Opinion
Drafts, 30 AM. POL. RES. 166 (2002).
47. COURIERS OF THE MARBLE PALACE, supra note 19, at 13.
48. For a more detailed discussion of the types of law clerk influence, see
id. at 12–14; ARTEMUS WARD & DAVID WIEDEN, SORCERERS’ APPRENTICES: 100
YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT 144–47, 150–70
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As noted earlier, the question of law clerk confidentiality is a
subject that has concerned the Court in recent decades.49 This
should not be surprising given the larger role that law clerks now
play in the processing of the Court’s work.50 Historically, the
individual Justices would establish rules for their own law clerks
regarding the duty of confidentiality,51 but today the Supreme
Court has created the Code of Conduct for Law Clerks of the
Supreme Court of the United States52 (Code of Conduct).
Composed of six canons, the Code of Conduct states that law
clerks hold a position of “public trust” and owe “complete
confidentiality, accuracy, and loyalty” to both the Court and their
individual Justices.53 Canon Three of the Code of Conduct
stresses confidentiality:
The relationship between Justice and law clerk is essentially a
confidential one. A law clerk should abstain from public
comment about a pending or impeding proceeding in the Court.
A law clerk should never disclose to any person any
confidential information received in the course of the law
clerk’s duties, nor should the law clerk employ such
information for personal gain.54
Canon Three further discusses confidentiality in regards to
the press: “The clerks should take care not to express to the press
(2006).
49. COURIERS OF THE MARBLE PALACE, supra note 19, at 12–14.
50. Id. at 143.
51. For example, former Warren law clerk, Dallin Oaks, recorded the
following confidentiality instructions in his diary:
[The law clerks] are to take orders from and be subject to persuasion
or pressure from no one save [Chief Justice Warren]. Be sensitive from
other clerks to influence him. OK to discuss matters freely with other
clerks, but distinguish that from propagandizing by them or us.
Improper to correspond with another Justice. OK to “drop in” on their
request but use great care on such visits. Law clerk should feel
responsible for good name of his justice both at present and for all
time. Don’t discuss Warren’s views on unpublished matters with other
clerks. If we have ideas for court or other justices route them thru
Warren.
Id. at 150.
52. CODE OF CONDUCT FOR LAW CLERKS
UNITED STATES (1989) (on file with author).
53. Id.
54. Id. at Canon 3(C).
104
OF THE
SUPREME COURT
OF THE
2012]
Supreme Court Law Clerks
an opinion about the validity of a claim or issue before the Court
or transmit any information not available to the public generally,
particularly about the outcome of a case or the positions of
particular Justices.”55 The relevance of the Code of Conduct to
the leaks surrounding the Obamacare case is clear—even if a
Justice authorized his clerk to leak information, the law clerk
would be in violation of the Code of Conduct because the duty of
confidentiality is owed to both the individual Justice and the
Court.
The Code of Conduct is intended to bind the law clerk both
during and after their time at the Court. A violation of its
provisions during their employment can result in being
terminated, but the punishment for former clerks who violate its
provisions is less clear.56 Despite the fact that the Code of
Conduct represents a code of ethical duties for public servants,
the Supreme Court has consistently refused to make copies of the
Code of Conduct available to the general public.57
The question of their law clerks’ education and training also
became more relevant as their job duties increased.58 While the
Justices had no qualms about hiring law clerks from local law
schools—such as the old National University Law School and
George Washington—when the clerks were doing stenography
and filing, the new work assignments meant that the Justices
started turning to an elite handful of top American law schools—
primarily Harvard, Yale, Stanford, University of Chicago, and
Columbia—for their law clerks.59 These hiring patterns have
remained consistent over the last fifty years.60
The Justices’ myopic focus on elite law schools, combined
with the lack of minorities amongst the law clerk corps, have
sparked protests and calls for the Justices to promote academic
and ethnic diversity in selecting clerks.61 The Justices’ responses
55.
56.
57.
58.
59.
60.
61.
Id. at Canon 3(E).
Id. Canon 6.
COURIERS OF THE MARBLE PALACE, supra note 19, at 204.
Id. at 143.
Id. at 28 Table 2.4.
See generally id. at 69–76.
See Christopher R. Benson, A Renewed Call for Diversity Among
Supreme Court Clerks: How a Diverse Body of Clerks Can Aid the High Court as
an Institution, 23 HARV. BLACKLETTER J. 23 (2007). See generally Adam Liptak,
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to these demands have been, in a word, contradictory. While the
Justices assert that they do not rely too heavily on their law
clerks, they simultaneously claim that they cannot take a chance
on hiring law clerks from less prestigious law schools.62 This
blunt message was best captured in comments that Justice
Antonin Scalia made to an audience of American University law
students in May of 2009.63 In discussing his selection practices,
Scalia candidly remarked:
By and large . . . I’m going to be picking from the law schools
that basically are the hardest to get into. They admit the best
and the brightest, and they may not teach very well, but you
can’t make a sow’s ear out of a silk purse. If they come in the
best and the brightest, they’re probably going to leave the best
and the brightest, O.K.?64
The implication is that it is equally impossible to make a silk
purse out of a sow’s ear, and that the classrooms of second-tier
law schools are filled with pigs’ ears. To date, the increase in the
hiring of minority law clerks or clerks from “lesser” academic
institutions has been modest at best.65
On the Bench and Off, the Eminently Quotable Justice Scalia, N.Y. TIMES, May
12, 2009, at A13, available at http://www.nytimes.com/2009/05/12/us/12bar.html
[hereinafter On the Bench and Off]; Adam Liptak, A Second Justice Opts Out of
a Longtime Custom: ‘The Cert. Pool,’ N.Y. TIMES, Sept. 25, 2008, at A21,
available
at
http://www.nytimes.com/2008/09/26/washington/26memo.html
[hereinafter A Second Justice].
62. On the Bench and Off, supra note 61.
63. See id.
64. Id.
65. See Todd Ruger, Statistics Show No Progress in Federal Court Law
Clerk Diversity, NAT’L L.J. (May 2, 2012), http://www.law.com/jsp/nlj/
PubArticleNLJ.jsp?id=1202551008298&Statistics_show_no_progress_in_federal
_court_law_clerk_diversity. As for academic diversity, the popular legal blog,
Above the Law, has a partial list of the October Term 2012 law clerks. David
Lat, Supreme Court Clerk Hiring Watch: OT 2012 and OT 2013, ABOVE THE LAW
(Jan. 25, 2012, 7:02 PM), http://abovethelaw.com/2012/01/supreme-court-clerkhiring-watch-ot-2012-and-ot-2013/. The clerks have been selected from a very
familiar list of law schools, including: Yale (7), Harvard (5), Stanford (5), New
York University (3), University of Chicago (2), Columbia (2), Duke (2),
University of Virginia (2), George Washington University (2), Georgetown (1),
and Northwestern (1). Id.
106
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Supreme Court Law Clerks
III. THE MODERN SUPREME COURT LAW CLERK
Today, each Associate Justice of the Supreme Court is
authorized to hire four law clerks (the chief justice is permitted
to employ five clerks, plus administrative assistants).66 The
retired Justices are each allowed to hire a single law clerk, who
also works for an active Justice if the clerk’s workload permits.67
The “modern” Supreme Court law clerk is fully involved in all
aspects of the Supreme Court’s work. During the final years of
the Rehnquist Court, all the Justices—save Justice John Paul
Stevens—were members of the cert. pool (certiorari petitions are
equally divided between the eight chambers, each chamber
prepares certiorari memoranda regarding said petitions, and the
memoranda are then circulated to the other chambers).68 While
the cert. pool was originally designed to reduce the workload of
the law clerks, some have argued that the pool has had the
unintended effect of increasing law clerk influence over the
certiorari process—especially if a single clerk is reviewing the
certiorari petition for the entire Court.69
The majority of the Rehnquist Court Justices also had their
law clerks prepare bench memoranda prior to oral argument,
memoranda which summarized the lower court record, the
salient legal arguments of the parties and the amici curiae (if
any), and offered both the clerks’ recommended disposition as
well as questions for the Justices to ask.70 As for judicial
opinions, Justice Stevens was the only Rehnquist Court Justice
to still prepare the first drafts of opinions.71 When asked why he
66. See generally 28 U.S.C. § 675 (2006) (authorizing Supreme Court
Justices to appoint law clerks and secretaries).
67. Id.
68. The cert. pool was created in the early 1970s when Justice Lewis F.
Powell, Jr. suggested that scarce judicial resources might be better used if the
Justices “pooled” the certiorari petitions amongst the chambers and had the law
clerks from each chamber review only a portion of the certiorari petitions. See
WARD & WIEDEN, supra note 48, at 117–28. Under this system, the law clerks
from a specific chamber review their proportionate share of certiorari petitions,
draft memoranda, and then circulate the memoranda to all participating
chambers. See id.
69. David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law
Clerks in the Certiorari Process, 85 TEX. L. REV. 947, 947 (2007).
70. COURIERS OF THE MARBLE PALACE, supra note 19, at 190–205.
71. Id. at 195.
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wrote the first draft, Stevens replied, “I’m the one hired to do the
job.”72 He explained the opinion writing process allows him to
continue to learn about the factual and legal issues in the case.73
Justice Stevens added that there is also a more practical reason
why he prepares the first draft—he typically produces a draft
that is shorter and cleaner (less citations and flowery verbiage)
than the ones prepared by his law clerks.74
Historically, there has been less concern about law clerks
wielding influence over how the Justices vote on the merits of the
case. Simply put, it is difficult to conceive of a young, freshlyminted lawyer being able to hold sway over the firmly-held
doctrinal and ideological preferences of a veteran jurist. A recent
study, however, has found evidence that law clerk policy
preferences may have a separate and independent impact on how
Justices decide to vote.75 While the study offers only a rudimentary model of judicial decision-making, it clearly demonstrates a
strong correlation between law clerk ideology and case outcomes,
which is suggestive, but not conclusive, of law clerk influence.76
While I have not had the opportunity to survey the newest
members of the Roberts Court, it is likely that Justices Samuel
Alito, Sonia Sotomayor, and Elena Kagan have also followed the
“new” institutional norm of having law clerks prepare opinion
drafts. As for certiorari petitions, all Justices—save Justice
Alito—are members of the cert. pool.77 Justice Alito has not
publicly stated why he decided not to join the pool.78
IV. CONCLUSION
At the end of the October 2011 Term, the Justices fled from
the heat of Washington for their traditional whirl of overseas
trips, legal seminars at exotic locations, and visits to vacation
72.
73.
74.
75.
Id.
Id.
Id.
Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme
Court Decision Making: An Empirical Assessment, 58 DEPAUL L. REV. 51, 53
(2008).
76. Id.
77. A Second Justice, supra note 61.
78. See id.
108
2012]
Supreme Court Law Clerks
homes.79 It is difficult to predict the toll that the leaks in the
Obamacare case will have on judicial collegiality come October
Term 2012, but it is clear that the leaks have thrust the Supreme
Court law clerk back into the spotlight. While once the law clerks
remained hidden in the shadows of the Marble Palace, today the
law clerks are understood to be important institutional actors.80
More than ever, legitimate questions remain unanswered
regarding how Supreme Court law clerks are selected and
utilized. While members of the executive and legislative branches
openly discuss the roles their young staffers play in the policymaking process, the Supreme Court still promotes the fiction,
once articulated by Supreme Court Justice Louis D. Brandeis,
that “[t]he reason the public thinks so much of the Justices of the
Supreme Court is that they are almost the only people in
Washington who do their own work.”81 The nine Justices of the
modern Supreme Court do not do their work alone, and it is time
that the Justices answer some fundamental questions about the
“junior justices” in a complete and transparent fashion. The
public release of the Code of Conduct might be a good start. Not
only would the release be a symbolic gesture toward
transparency, but it would help educate the press and the public
on the institutional constraints which are designed to limit law
clerk influence and misadventures; thereby helping to restore
confidence in “the least dangerous branch.”
79. Associated Press, Supreme Court Justices’ Summer Plans Point to Big
Decisions by Late June, FOX NEWS (May 27, 2012), http://www.foxnews.com/
politics/2012/05/27/supreme-court-justices-summer-plans-point-to-big-decisionsby-late-june/.
80. COURIERS OF THE MARBLE PALACE, supra note 19, at 143.
81. CHARLES E. WYZANSKI, JR., WHEREAS—A JUDGE’S PREMISES: ESSAYS IN
JUDGMENT, ETHICS, AND THE LAW 61 (1965).
109
DOG SNIFFS, ROBOT SPIDERS, AND THE
CONTRABAND EXCEPTION TO THE FOURTH
AMENDMENT
Stephen A. Simon*
I.
II.
III.
IV.
V.
INTRODUCTION ............................................................... 111
FLORIDA V. JARDINES ................................................... 112
THE EMERGENCE OF THE CONTRABAND
EXCEPTION ....................................................................... 113
FLORIDA V. JARDINES, AND THE IMPLICATIONS
OF THE CONTRABAND EXCEPTION ............................ 124
CONCLUSION.................................................................... 136
I. INTRODUCTION
Does the Fourth Amendment allow law enforcement to use
drug detection dogs outside a person’s home without prior
grounds for suspicion?1 The question brings into play two lines of
Supreme Court precedent. In one set of cases, the Court has
stated that investigative procedures do not constitute searches if
they only reveal the presence or absence of a specific illegal
substance.2 The Court has applied this principle, which has been
referred to as the “contraband exception,”3 to uphold the use of
Dr. Stephen A. Simon is an Assistant Professor in the Political Science
Department, and in the Philosophy, Politics, Economics and Law Program at
the University of Richmond in Richmond, Virginia. Dr. Simon received his B.A.
from Harvard College, received his J.D. from New York University School of
Law, and his Ph.D. in Government and Politics from the University of
Maryland.
1. The Supreme Court is slated to address this question in the Fall Term
of 2012, in the case of Florida v. Jardines, an appeal from the Florida Supreme
Court’s decision in Jardines v. State, 73 So. 3d 34 (Fla. 2011), cert. granted in
part, 565 U.S. ___, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564).
2. See Illinois v. Caballes, 543 U.S. 405, 410 (2005); City of Indianapolis v.
Edmond, 531 U.S. 32, 40 (2000); United States v. Jacobsen, 466 U.S. 109, 123–
24 (1984); United States v. Place, 462 U.S. 696, 707 (1983).
3. See, e.g., Timothy C. MacDonnell, Orwellian Ramifications: The
*
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drug detection dogs during a routine traffic stop without
individualized grounds of suspicion.4 However, in Kyllo v. United
States, the Court stressed the special importance of privacy in
one’s home in invalidating the warrantless use of a thermal
imaging device to discern the temperature inside an individual’s
residence.5 In this Article, I contend that the application of the
Court’s precedents suggests that law enforcement may use drug
detection dogs outside a home without a warrant. I also argue
that this implication highlights what is wrong with the
contraband exception.
II. FLORIDA V. JARDINES
Florida v. Jardines places the question at the start of this
Article squarely in front of the Justices. On December 6, 2006,
based on an anonymous tip, detectives in the Miami-Dade Police
Department conducted a warrantless “sniff test” with a drug
detection dog outside the home of Joelis Jardines.6 The test
indicated the presence of narcotics in the house, and the officers
used the results of the test to obtain a warrant to search the
house.7 The search revealed the presence of marijuana plants.8 In
the trial court, Jardines objected to the use of the results from
the warrantless sniff test to obtain the warrant,9 and the court
granted his motion to suppress the evidence obtained from the
search.10 In suppressing the evidence, the trial court relied on the
Contraband Exception To The Fourth Amendment, 41 U. Mem. L. Rev. 299, 302
(2010).
4. The Court also indicated in Place and Edmond that the use of drugdetecting dogs did not constitute a search; in those cases, though, the Court
held against the Government on other grounds, and the statements regarding
the dog sniffs could be regarded as dicta. See Place, 462 U.S. at 719–20
(Brennan, J., concurring).
5. 533 U.S. 27 (2001).
6. Jardines, 73 So. 3d at 37 (Fla. 2011).
7. Id. at 37–38.
8. Id. at 38.
9. State v. Jardines (Jardines I), No. F06-40839, 2007 WL 7262747, at
*41 (Fla. Cir. Ct. June 13, 2007), rev’d, State v. Jardines (Jardines II), 9 So. 3d
1, 2 (Fla. Dist. Ct. App. 2008), decision quashed, Jardines v. State (Jardines
III), 73 So. 3d 34 (Fla. 2011), cert. granted in part, 565 U.S. ___, 132 S. Ct. 995
(Jan. 6, 2012) (No. 11-564).
10. Id. at *42.
112
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Dog Sniffs and 4th Amendment
authority of a Florida district court decision,11 State v. Rabb,
which held that the warrantless use of a drug detection dog
outside a home violates the Fourth Amendment.12 The State
appealed the ruling, and the district court reversed the trial
court,13 certifying a conflict with Rabb.14
The Florida Supreme Court held that Jardines’ Fourth
Amendment rights were violated because the dog sniff
constituted a search, which only could be conducted upon a
showing of probable cause.15 The United States Supreme Court
agreed to hear Jardines’ appeal to address whether the use of a
drug detection dog outside a home is a Fourth Amendment
search that requires probable cause.16 The case, therefore, raises
two distinct questions. The first question is whether the dog sniff
is a search. The second question is, assuming it is a search, what
standard of evidence is required to conduct the search—
reasonable suspicion or probable cause? This Article focuses
specifically on the first question of whether the use of drug
detection dogs outside a home is a search. While both questions
are important, the first is a threshold question that merits
special attention because of the serious, broader implications
that follow if the contraband exception is used to conclude that
dog sniffs, by their nature, are not searches.
III. THE EMERGENCE OF THE CONTRABAND EXCEPTION
While this discussion began with Jardines, the aim is not to
predict the Supreme Court’s treatment of the case, but rather to
use the dispute as a jumping-off point for discussion of the
broader issues that the case raises. Specifically, the case brings
to the forefront the potential implications of the Court’s doctrine
that investigatory techniques do not constitute searches if they
only reveal the presence or absence of contraband (the
11.
12.
13.
14.
15.
16.
Id. at *41.
920 So. 2d 1175, 1188 (Fla. Dist. Ct. App. 2006).
Jardines II, 9 So. 3d at 2.
Jardines III, 73 So. 3d at 35.
Id. at 50–54.
Order Granting Certiorari, Florida v. Jardines, 565 U.S. ___, 132 S. Ct.
995 (2012) (No. 11-564).
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“contraband exception” or “the exception”).17
The determination of whether an investigatory technique
constitutes a “search” for Fourth Amendment purposes is a
crucial threshold question because if the technique is not a
search in the first place, it plainly cannot be an “unreasonable”
search. Thus, the Court effectively removes a technique found not
to be a search from the scope of Fourth Amendment protection.
While there might be other kinds of constitutional limitations on
the technique’s use,18 the question of whether the technique
violates the Constitution’s prohibition against “unreasonable
searches” is taken off the table. The question of whether a
technique qualifies as a search is especially significant, because a
search “is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing.”19 One of the primary
ways that the Fourth Amendment provides protection against
potentially harassing or abusive police tactics is by ensuring that
certain kinds of law enforcement tactics can only be employed
after there are already legitimate grounds for suspecting a
particular individual of wrongdoing.20 If a technique is not a
search, it can be used by law enforcement freely without fear of
violating the Fourth Amendment.21
In Katz v. United States, the Court adopted an approach to
the Fourth Amendment that refused to accept the kind of place
that was the subject of a search as decisive.22 The case concerned
17. Jardines III, 73 So. 3d at 40.
18. The technique, for example, still could not be used in a discriminatory
manner in violation of the Equal Protection Clause, which provides that: “No
State shall . . . deny to any person within its jurisdiction the equal protection of
the laws.” U.S. CONST. amend. XIV, § 1.
19. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citing Chandler
v. Miller, 520 U.S. 305, 308 (1997)).
20. See U.S. CONST. amend IV. The Fourth Amendment states, “no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
21. See U.S. CONST. amend IV. The Fourth Amendment only protects
“persons, houses, papers, and effects, against unreasonable searches and
seizures.” Therefore, if the technique is not deemed a search or seizure, it is not
encompassed by the Fourth Amendment. Id.
22. 389 U.S. 347 (1967).
114
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Dog Sniffs and 4th Amendment
a listening device that police attached to the outside of a
telephone booth to eavesdrop on the suspect’s conversation.23 The
parties in the case framed the issue as “[w]hether a public
telephone booth is a constitutionally protected area,”24 but the
Court rejected this formulation, stressing that the Amendment
“protects people, not places.”25 In his majority opinion, Justice
Potter Stewart stressed the importance of an individual’s actions
in attempting—or not—to keep something from public view.26
More specifically, he wrote that what “a person knowingly
exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection,” while, on the other
hand, “what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.”27 The
Court also jettisoned the longstanding rule that an investigative
technique only amounted to a search if it entailed physical
penetration of a constitutionally protected area,28 holding that
the Amendment’s reach “cannot turn upon the presence or
absence of a physical intrusion into any given enclosure.”29
Because Mr. Katz had “sought to exclude . . . the uninvited ear”
when he shut the door of the telephone booth, the Court found
that the use of the listening device constituted a search.30
In his remarkably influential concurring opinion,31 Justice
John Marshall Harlan set forth a “twofold requirement” for
identifying the scope of the Fourth Amendment’s protection.32
Specifically, in Justice Harlan’s iteration, something would fall
within the Amendment’s protection if the Court could find: (1)
that “a person ha[d] exhibited an actual (subjective) expectation
of privacy” and (2) “that the expectation be one that society is
23.
24.
25.
26.
27.
28.
29.
30.
31.
Id. at 348.
Id. at 349.
Id. at 351.
See id. at 351–52.
Id.
See Olmstead v. United States, 277 U.S. 438, 464–65 (1928).
Katz, 389 U.S. at 353.
Id. at 352.
Justice John Marshall Harlan’s concurring opinion in Katz is cited by
United States v. Place, 462 U.S. 696, 706–07 (1983) and United States v.
Jacobsen, 466 U.S. 109, 112 (1984).
32. Katz, 389 U.S. at 361 (Harlan, J., concurring).
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prepared to recognize as ‘reasonable.’”33 As the Court has
phrased it subsequently, what this means for Fourth Amendment
doctrine is that a search “occurs when an expectation of privacy
that society is prepared to consider reasonable is infringed.”34
The Court first articulated the contraband exception in
United States v. Place.35 Law enforcement officers at Miami
International Airport became suspicious of Raymond Place due to
his behavior while waiting in line to purchase a ticket.36 Based on
the officers’ follow-up investigation while Place was in the air,
agents asked to search Place’s luggage when he arrived at
LaGuardia Airport in New York City.37 Although Place refused,
the agents took the luggage to John F. Kennedy International
Airport, where they subjected it to a sniff test using a drug
detection dog.38 The dog indicated the presence of narcotics and
the agents used the results of the test in obtaining a warrant to
search the luggage, which lead to federal charges for possession
of narcotics with intent to distribute.39 The Court held that even
though the officers had reasonable suspicion that the luggage
contained narcotics, taking the luggage to another airport for the
sniff test took too much time to qualify as a valid “stop”40 under
Terry v. Ohio.41
Since the Court held against the Government on the grounds
that the seizure exceeded the limits of Terry, it was not necessary
for the Court to consider whether the sniff test counted as a
Fourth Amendment search.42 Nevertheless, the Court went on to
state that the use of the drug detection dog to determine whether
Place’s luggage contained narcotics did not constitute a search
because the investigation was relatively unintrusive.43 The
pivotal factor that made the investigation unintrusive was that
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
116
Id.
Jacobsen, 466 U.S. at 113.
462 U.S. 696 (1983).
Id. at 698.
Id.
Id. at 699.
See id.
Id. at 708–10.
392 U.S. 1 (1968).
See Place, 462 U.S. at 719 (Brennan, J., concurring).
See id. at 707 (majority opinion).
2012]
Dog Sniffs and 4th Amendment
“the sniff discloses only the presence or absence of narcotics, a
contraband item.”44 Conducting the dog sniff test did not entail
officers “rummaging through the contents of the luggage” or even
opening the luggage.45 And the nature of the test was such that it
was only capable of revealing the isolated datum of whether the
luggage did or did not contain narcotics.46 Justice Sandra Day
O’Connor’s opinion for the Court characterized the dog sniff test
as sui generis, since the Court was “aware of no other
investigative procedure that is so limited both in the manner in
which the information is obtained and in the content of the
information revealed by the procedure.”47
While the discussion of the dog sniff test in Place could be
characterized as dicta,48 the Court’s further development of the
contraband exception was part of the decision’s rationale in
United States v. Jacobsen, handed down just one year after
Place.49 In Jacobsen, employees of Federal Expres observed white
powder in a package that had been damaged.50 After they
notified authorities, agents of the Drug Enforcement Agency
subjected the powder in the package to a field test, which
indicated that it was cocaine.51 The results of the test served as
the basis for a warrant to search the address to which the
package had been shipped, leading to further evidence resulting
in an indictment for possessing an illegal substance with the
intent to distribute.52 In a portion of the decision, not directly
relevant here, the Court found that the removal of material from
the damaged package constituted a Fourth Amendment seizure,
but that it was a not an unreasonable one given what the agents
already knew from the testimony of the Federal Express
employees.53
In the portion of the opinion which is significant for present
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
Id.
Id.
See id.
Id.
See id. at 719 (Brennan, J., concurring).
466 U.S. 109 (1984).
Id. at 111.
Id. at 111–12.
Id.
Id. at 121.
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purposes, the Court concluded that the field test of the powder
did not constitute a search.54 In doing so, the Court elaborated on
the new doctrine that had been initially suggested by Place.
Employing the familiar standard from Justice Harlan’s
concurrence in Katz,55 the Court framed the inquiry as whether
the field test “infringe[s] an expectation of privacy that society is
prepared to consider reasonable.”56 In his opinion for the
majority, Justice John Paul Stevens stressed the limited nature
of the information that the test revealed.57 The test, he wrote,
“could disclose only one fact previously unknown to the agent—
whether or not a suspicious white powder was cocaine. It could
tell him nothing more, not even whether the substance was sugar
or talcum powder.”58 It followed that the test was not a search
because “[a] chemical test that merely discloses whether or not a
particular substance is cocaine does not compromise any
legitimate interest in privacy.”59
The analysis focused entirely on the information that the test
would reveal.60 If the test was positive, Justice Stevens reasoned,
then it would not infringe on the defendant’s reasonable
expectation of privacy, since one could not have a reasonable
expectation of privacy in something that was illegal.61 Thus,
Justice Stevens wrote: “Congress has decided—and there is no
question about its power to do so—to treat the interest in
‘privately’ possessing cocaine as illegitimate; thus governmental
conduct that can reveal whether a substance is cocaine, and no
other arguably ‘private’ fact, compromises no legitimate privacy
interest.”62 According to the Court’s reasoning, laws making the
possession of certain things illegal removed those things from the
Fourth Amendment’s scope of protection.63 The line of reasoning
suggested that an expectation of privacy pertaining to something
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
118
Id. at 123.
389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Jacobsen, 466 U.S. at 122.
Id. at 124.
Id. at 122.
Id. at 123.
See id.
See id.
Id.
See id.
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Dog Sniffs and 4th Amendment
illegal was per se unreasonable.64 On the other hand, if the test
was negative, Justice Stevens reasoned, it did not infringe any
reasonable expectation of privacy because it would not reveal
anything except that the material tested was not a particular
banned substance; it would, therefore, “reveal[] nothing of special
interest.”65 The Court clearly viewed Place as the origin of this
doctrine, stating that the outcome was “dictated by” that
decision.66 Justice Stevens concluded by noting that “as in Place,
the likelihood that official conduct of the kind disclosed by the
record will actually compromise any legitimate interest in
privacy seems much too remote to characterize the testing as a
search subject to the Fourth Amendment.”67 In this analysis, the
compromising of a “legitimate interest in privacy” is linked with
the probability that information other than the presence or
absence of an illegal substance will be revealed.68 Justice Stevens
clarified the Place opinion by emphasizing that the crux of the
contraband exception was that an individual simply cannot have
a Fourth Amendment interest in keeping illegal things private.69
Similar to Place, the Court stated in City of Indianapolis v.
Edmond that the use of drug detecting dogs did not constitute a
search, even though the challenged governmental action was
invalidated on other grounds.70 Edmond concerned the constitutionality of a highway checkpoint program that was targeting the
possession of illegal narcotics.71 As part of the program, police
officers walked drug detection dogs around cars that were
randomly stopped.72 In a 6–3 decision, the Court ruled against
the program on the grounds that it relied on unreasonable
seizures because they were aimed at identifying ordinary
criminal activity, yet were not based on any kind of
64.
65.
66.
67.
68.
69.
70.
See id.
Id.
Id.
Id. at 124.
Id.
Id. at 121–22.
531 U.S. 32, 40 (2000) (holding checkpoints violated Fourth
Amendment because the program’s purpose was indistinguishable from general
interest in crime control).
71. Id. at 34.
72. Id. at 35.
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individualized suspicion.73 Justice O’Connor’s majority opinion
did not classify the sniff tests as searches.74 Explicitly following
Place, and employing the logic elaborated in Jacobsen, Justice
O’Connor reasoned that the tests were “much less intrusive than
a typical search,”75 since they were “not designed to disclose any
information other than the presence or absence of narcotics.”76
Kyllo v. United States is noteworthy, not because it applied
the contraband exception, but because it appeared to undercut
it.77 The case raised the question of whether law enforcement’s
use of a thermal imaging device from outside a home to discern
the temperature in different areas inside the home constituted a
search.78 It is easy to see how the reasoning behind the
contraband exception initiated in Place could support the
conclusion that the use of a thermal imaging device would not
count as a search.79 Indeed, one of the points made by Justice
Stevens in his opinion for four dissenters was that the majority’s
reasoning was inconsistent with Place.80 After all, like the dog
sniff tests in Place and Jacobsen, the use of the thermal imaging
device in Kyllo did not require entry into the place to be
investigated, nor did it require “rummaging” through the house.81
It was a discrete test designed to reveal only a very limited
amount of information.82
In an opinion by Justice Scalia, however, the majority found
that the use of the thermal imaging device did constitute a
search; therefore, its application without a warrant violated the
Fourth Amendment.83 In supporting that conclusion, Justice
Scalia emphasized the special importance of the home, stating
73.
74.
75.
76.
77.
Id. at 40–48.
Id. at 40.
Id. (quoting United States v. Place, 462 U.S. 696, 707 (1983)).
Id.
533 U.S. 27 (2001) (holding use of thermal imaging device by law
enforcement to be a search despite discovery of marijuana inside home).
78. Id. at 29–31. Higher temperatures in certain parts of the home could be
evidence that lights were being used to support the growth of marijuana. Id. at
30.
79. Place, 462 U.S. at 705–10.
80. Kyllo, 533 U.S. at 47–48 (Stevens, J., dissenting).
81. Id. at 49.
82. Id. at 48 (Stevens, J., dissenting).
83. Id. at 40 (majority opinion).
120
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Dog Sniffs and 4th Amendment
that “the right of a man to retreat into his own home and there
be free from unreasonable governmental intrusion” is “the very
core” of the Fourth Amendment.84 In a similar vein, Justice
Scalia further wrote that “[w]ith few exceptions, the question
whether a warrantless search of a home is reasonable and hence
constitutional must be answered no.”85 However, in Kyllo the
question was not whether a search was reasonable, but whether
a particular investigatory technique counted as a search in the
first place.86 Justice Scalia noted that the Court had previously
held: “[A] Fourth Amendment search does not occur—even when
the explicitly protected location of a house is concerned—unless
‘the individual manifested a subjective expectation of privacy in
the object of the challenged search,’ and ‘society is willing to
recognize that expectation as reasonable.’”87
The Court had allowed other investigatory techniques that
revealed information about things taking place in someone’s
residence, such as the use of pen registers to show the phone
numbers dialed from a home and aerial surveillance of houses
and surrounding property.88 But why were these techniques
constitutionally permissible even though they intruded on the
special province of the home? Justice Scalia noted that while
Katz is perceived as having expanding Fourth Amendment
protections, it also implied the constriction of such protections in
some circumstances.89 By shifting the paradigm away from places
as being either in or out of Fourth Amendment protection, Katz
allows for some investigatory techniques to be upheld even
though they invade the privacy of the home.90 The crucial
variable driving the constriction of Fourth Amendment
protections under Katz was the advancement of technologies that
84. Id. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511
(1961)).
85. Id. (citing Illinois v. Rodriguez, 497 U.S. 77, 181 (1990)).
86. Id. at 46 (Stevens, J., dissenting) (noting majority’s decision to overlook
inquiry into reasonableness of thermal imaging device).
87. Id. at 33 (majority opinion) (quoting California v. Ciraolo, 476 U.S. 207,
211 (1986)).
88. Id. (citing Florida v. Riley, 488 U.S. 445, 447–48 (1989); Ciraolo, 476
U.S. at 211; and Smith v. Maryland, 442 U.S. 735, 743–44 (1979)).
89. Id. at 32–34.
90. Id.
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made it possible to acquire information about what was going on
inside a home without physically invading the home.91 As Justice
Scalia acknowledged: “It would be foolish to contend that the
degree of privacy secured to citizens by the Fourth Amendment
has been entirely unaffected by the advance of technology.”92 As
investigatory technologies advance and people become aware of
these advancements, it becomes less reasonable for them to
expect certain kinds of information to remain private.93
The challenge for the Court in Kyllo was to articulate a
standard that could differentiate which emerging technologies
would count as searches.94 The majority in Kyllo adopted the
following standard: “[O]btaining by sense-enhancing technology
any information regarding the interior of the home that could not
otherwise have been obtained without physical ‘intrusion into a
constitutionally protected area’ . . . constitutes a search—at least
where . . . the technology in question is not in general public
use.”95 In adopting this standard, the majority emphasized the
importance of acknowledging the continuing advance of
technology. It was crucial that the constitutional standards
adopted did not “leave the homeowner at the mercy of advancing
technology—including imaging technology that could discern all
human activity in the home.”96 Although, as emerging technologies go, the thermal imaging device at issue in Kyllo was
“relatively crude,” the standards adopted had to “take account of
more sophisticated systems that are already in use or in
development.”97 Concluding, Justice Scalia wrote: “While it is
certainly possible to conclude from the videotape of the thermal
imaging that occurred in this case that no ‘significant’
compromise of the homeowner’s privacy has occurred, we must
take the long view, from the original meaning of the Fourth
91. Id.
92. Id. at 33–34.
93. Id. at 36 (“While the technology used in the present case was relatively
crude, the rule we adopt must take account of more sophisticated systems that
are already in use or in development.”).
94. Id.
95. Id. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512
(1961)).
96. Id. at 35–36.
97. Id. at 36.
122
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Dog Sniffs and 4th Amendment
Amendment forward.”98 Applying the standards articulated, the
Court found that the use of the thermal imaging device
constituted a search.99
Although Justice Scalia did not mention Place, the Court’s
reasoning in Kyllo seemed to undercut the contraband
exception.100 Indeed, the dissenters in Kyllo viewed Place as
inconsistent with the majority’s reasoning.101 A straightforward
application of the contraband exception arguably favored the
Government’s position in Kyllo. Like the dog sniff in Place, the
thermal imaging device did not require physical penetration or
rummaging, and was designed to reveal only very limited
information regarding the presence of illegal material.102 The
Court’s decision four years later in Illinois v. Caballes however,
made clear that the contraband exception remained in full
effect.103 In Caballes, state troopers walked a drug detection dog
around an individual’s car during a routine traffic stop.104 In the
parlance of this investigatory technique, “[t]he dog alerted at the
trunk,”105 prompting the officers to search the trunk, which led to
the discovery of marijuana and ultimately the driver’s conviction
for narcotics offenses.106 The case raised anew the question of
whether the use of drug detection dogs constituted a search.107
Citing Place, Jacobsen, and Edmond, a 5–3 majority in
Caballes applied the contraband exception to hold that the use of
the drug detection dog, without reasonable suspicion, did not
violate the defendant’s Fourth Amendment rights because it was
not a search.108 The concise and straightforward reasoning in
Caballes makes clear that the contraband exception has
crystallized into a simple proposition: investigatory techniques
that are not physically invasive and which reveal only the
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
Id. at 40.
Id. at 34–35.
See id. at 37–39.
See id. at 47–48 (Stevens, J., dissenting).
Id. at 34 (majority opinion).
543 U.S. 405, 409–10 (2005).
Id. at 406.
Id.
Id. at 406–07.
Id. at 407.
Id. at 408–09.
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presence or absence of an illegal substance are not searches.109
Of particular interest is the manner in which the majority in
Caballes distinguished Kyllo. In his opinion for the Court, Justice
Stevens did not rest the distinction on the special importance of
the home.110 Instead, the pivotal distinction was that the thermal
imaging device in Kyllo revealed information that went beyond
the presence or absence of contraband.111 The device indicated
the temperature in different parts of the house, which could be
suggestive of information beyond the mere presence of
contraband, such as whether a person in the house was taking a
hot bath.112 Further confirmation that Kyllo left the contraband
exception intact, if any is needed, is suggested by the fact that
Justice Scalia, who wrote the majority opinion in Kyllo,113 joined
the majority opinion in Caballes.114 Moreover, Justices Clarence
Thomas and Stephen Breyer voted with the majority in both
cases.115
IV. FLORIDA V. JARDINES, AND THE IMPLICATIONS OF
THE CONTRABAND EXCEPTION
Florida v. Jardines is a crucial test for the contraband
exception because it brings it to the home.116 Thus far, the Court
has applied the exception only in contexts other than those of
individuals’ residences.117 Place and Edmond concerned the use
of drug detection dogs outside cars,118 and Jacobsen involved a
109. Id. at 408–10.
110. Id.
111. Id. at 409–10. One scholar has criticized the grounds of distinction as
implausible. See MacDonnell, supra note 3, at 316 (“In a piece of historical
reinterpretation that would have been well received by Orwell’s Ministry of
Truth, the majority explained why the Caballes decision was ‘entirely consistent
with’ Kyllo v. United States.”) (footnotes omitted).
112. Caballes, 543 U.S. at 409–10.
113. Kyllo v. United States, 533 U.S. 27, 29 (2001).
114. Caballes, 543 U.S. at 405.
115. Id.; Kyllo, 533 U.S. at 29.
116. See Jardines III, 73 So. 3d 34, 35–36 (Fla. 2011), cert. granted in part,
565 U.S. ___, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564).
117. See id. at 40–42.
118. See City of Indianapolis v. Edmond, 531 U.S. 32, 35–36 (2000); United
States v. Place, 462 U.S. 696, 698–700 (1983).
124
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Dog Sniffs and 4th Amendment
field test on a damaged package singled out by Federal Express
employees.119 While Kyllo involved the use of a thermal imaging
device directed at a home, the Court in that case did not apply
the contraband exception, but held that the use of the device
constituted an impermissible Fourth Amendment search.120 As
the Court emphasized in Kyllo, Fourth Amendment jurisprudence has long considered the privacy in the home as entitled
to special protection.121 The Court, on three occasions, has held
that the use of drug detection dogs does not constitute a search,
most recently affirming that proposition in Caballes, which it
handed down four years after Kyllo.122 Jardines, then, raises the
question of which line of jurisprudence will prevail: the
proposition that dog sniffs are not searches, or the proposition
that the home is entitled to special protection?123
The reasoning behind the quartet of Place, Jacobsen,
Edmond, and Caballes does not seem to allow for a home
exception to the contraband exception. We can see this by
considering the arguments offered by the Florida Supreme Court
majority to support its decision that a home dog sniff was a
search.124 The state court, of course, was not in a position to
challenge the contraband exception but had to accept it as part of
the Supreme Court’s binding Fourth Amendment precedents.
The way that the court dealt with the contraband exception was
to distinguish the Supreme Court cases applying it.125
Given the straightforward logic of the contraband exception,
it appears that the only way to avoid its force is to show that the
investigatory technique in question reveals something other than
merely the presence or absence of contraband.126 In his opinion
for the majority in Jardines, Florida Supreme Court Justice
James E.C. Perry summarized the Court’s reasoning as follows:
119.
120.
121.
122.
123.
United States v. Jacobsen, 466 U.S. 109, 110–12 (1984).
See Kyllo, 533 U.S. at 40.
See id.
Illinois v. Caballes, 543 U.S. 405, 409 (2005).
See Jardines III, 73 So. 3d 34, 36 (Fla. 2011) cert granted in part, 565
U.S. ___, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564).
124. See id. at 49.
125. Id.
126. See id at 48–50.
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[A] “sniff test” by a drug detection dog conducted at a private
residence does not only reveal the presence of contraband, as
was the case in the federal “sui generis” dog sniff cases
discussed above, but it also constitutes an intrusive procedure
that may expose the resident to public opprobrium, humiliation
and embarrassment, and it raises the specter of arbitrary and
discriminatory application. Given the special status accorded a
citizen’s home under the Fourth Amendment, we conclude that
a “sniff test,” such as the test that was conducted in the
present case, is a substantial government intrusion into the
sanctity of the home and constitutes a “search” within the
meaning of the Fourth Amendment.127
Thus, Justice Perry began with the assertion that the drug
sniff did “not only reveal the presence of contraband.”128 In
support of this statement, Justice Perry pointed to three
considerations that purportedly distinguished the case from the
Court’s contraband exception precedents.129
First, Justice Perry noted that the contraband exception
cases involved investigative tests conducted outside the home,
while Jardines involved a dog sniff test at a private residence.130
This was deemed a crucial distinction, given the special
importance of privacy in the home.131 The difficulty with this
argument is that nothing in the reasoning behind the Place line
of cases suggests that the application of the contraband exception
depends on the location in which an investigative test is
conducted.132 The logic of the Court’s contraband exception case
is straightforward and unyielding in its implications. The key to
the exception is the view that an individual simply cannot have a
reasonable expectation of privacy in contraband.133 In this line of
reasoning, when a legislature exercises its authority to ban a
substance it perforce removes that substance from the scope of
127.
128.
129.
130.
131.
132.
Id. at 49.
Id.
Id. at 44.
Id. at 44–49.
Id. at 36, 45–46.
See generally Illinois v. Caballes, 543 U.S. 405 (2005); City of
Indianapolis v. Edmond, 531 U.S 32 (2000); United States v. Jacobsen, 466 U.S.
109 (1984) (the Place line of cases).
133. Caballes, 543 U.S. at 408–09.
126
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Dog Sniffs and 4th Amendment
Fourth Amendment protection, since one cannot have a
“legitimate privacy interest” in contraband.134 When Caballes
distinguished Kyllo, it did not do so on grounds relating to the
location of the search in Kyllo, but on the grounds that the
thermal imaging device in Kyllo revealed more than merely the
presence or absence of contraband.135 The implication is that the
use of the device at issue in Kyllo would not have constituted a
search if its technology had been refined so that it revealed a
narrower slice of information. Dissenting in Jardines, Florida
Supreme Court Justice Ricky Polston, joined by Chief Justice
Charles Canady, made similar points, noting that there is “no
language in Place, Jacobsen, Edmond, or Caballes that indicates
the reasoning that dog sniffs are not searches . . . would change if
the cases involved private residences.”136 Emphasizing that
Caballes had been decided after Kyllo, Justice Polston stated
further that “the very limited and unique type of intrusion
involved in a dog sniff is the dispositive distinction under United
States Supreme Court precedent, not whether the object sniffed
is luggage, an automobile, or a home.”137
A second ground on which the state supreme court majority
in Jardines sought to distinguish the contraband exception cases
was that “under the particular circumstances” of the Supreme
Court’s contraband exception cases, “the tests were not
susceptible to being employed in a discriminatory or arbitrary
manner.”138 According to Justice Perry’s majority opinion, the
objects in the contraband exception cases were “seized and tested
in an objective and nondiscriminatory manner, and there was no
evidence of overbearing or harassing government conduct.”139
This was not the case with the sniff test at issue in Jardines,
Justice Perry argued.140 The majority’s concern was that:
134.
135.
136.
137.
138.
139.
140.
Id. at 408.
Id. at 409–10.
Jardines III, 73 So. 3d at 68 (Polston, J., dissenting).
Id. at 69.
Id. at 45 (majority opinion).
Id.
Id. at 46 (describing “sniff test” as “a vigorous and intensive procedure.”).
127
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[I]f government agents can conduct a dog “sniff test” at a
private residence without any prior evidentiary showing of
wrongdoing, there is simply nothing to prevent the agents from
applying the procedure in an arbitrary or discriminatory
manner, or based on whim and fancy, at the home of any
citizen . . . . [s]uch an open-ended policy invites overbearing
and harassing conduct.141
The substance of the majority’s objection here is sound, but it
reads more as a wholesale objection to the contraband exception
than as a means of distinguishing Jardines from the Place line of
cases. It is hard to see how the use of dog sniff tests was any less
susceptible to arbitrary use in the Supreme Court’s contraband
exception cases; Edmond, after all, concerned the use of drug
detection dogs in conjunction with a highway checkpoint program
that picked cars at random for investigation.142 At any rate, the
reasoning behind the contraband exception cases did not hinge
on any particular circumstances that would prevent it from being
employed in the kind of arbitrary and harassing manner that the
majority in Jardines feared.
The third ground on which the Jardines Court sought to
distinguish the contraband exception, concerned the particulars
of the manner in which law enforcement carried out the sniff test
of Mr. Jardines’ home.143 Justice Perry detailed the investigative
operation of which the sniff test was a part, emphasizing the
extent to which the lengthy and intricate operation attracted the
attention of neighbors, thereby subjecting the defendant to public
embarrassment.144 “Such a public spectacle unfolding in a
residential neighborhood,” Justice Perry wrote, “will invariably
entail a degree of public opprobrium, humiliation and
embarrassment for the resident, for such dramatic government
activity in the eyes of many—neighbors, passers-by, and the
public at large—will be viewed as an official accusation of
crime.”145
This line of argument is subject to either of two
141.
142.
143.
144.
145.
128
Id. at 49 (internal citation and explanatory parenthetical omitted).
City of Indianapolis v. Edmond, 531 U.S. 32, 35 (2000).
Jardines III, 73 So. 3d at 36, 46–48.
Id.
Id. at 36.
2012]
Dog Sniffs and 4th Amendment
interpretations. One interpretation is that it is an argument that
is limited to the unusual facts of the case. On this interpretation,
it might be open to law enforcement to conduct a sniff test at a
home, provided that they did so in a careful and unobtrusive
manner that did not result in the suspect’s public
embarrassment. Given the general tenor of the opinion, and in
the context of Justice Perry’s other arguments, however, it does
not appear that this interpretation is warranted.146 The second,
and likely more appropriate interpretation, is that the majority’s
reasoning ruled out warrantless dog sniffs at homes in general.
The reasoning of the opinion, though, cannot successfully support
such a strong conclusion.147 There is no reason to believe (or at
least none provided in the opinion) that it is impossible for law
enforcement to conduct sniff tests in a manner that does not lead
to the kind of public embarrassment and humiliation that the
majority suggests was thrust upon Mr. Jardines.
Where does this leave us? The Florida Supreme Court’s
reasoning in Jardines offers three grounds for distinguishing the
Place line of cases, but none are successful.148 The sounder
conclusion is the one reached by the state court dissenters: the
contraband exception cases point to the result that a dog sniff
test at a home is not a Fourth Amendment search. As Justice
Polston wrote:
Franky the dog was lawfully present at Jardines’ front door
when he alerted to the presence of marijuana. And because,
under the binding United States Supreme Court precedent[,]
. . . a dog sniff only reveals contraband in which there is no
legitimate privacy interest, Franky’s sniff cannot be considered
a search violating the Fourth Amendment.149
My aim here is not to defend the proposition that dog sniffs
at homes should not be considered searches; I defend the
contrary position below. Rather, the discussion above concerns
the result that is consistent with the Court’s contraband
exception precedents. While it is possible to contend that the
146.
147.
148.
149.
See id. at 44–56.
Id.
Id. at 40–42.
Id. at 68 (Polston, J., dissenting).
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particular circumstances of Jardines somehow take it outside of
the application of the contraband exception, the larger question
is the merits of the contraband exception itself. The principal
concern of this Article is not the outcome of any single Supreme
Court case, which can turn on any number of narrow procedural
or factual considerations. Rather, the principal concern is to
directly address the contraband exception as a general matter. I
believe that the contraband exception cases suggest that a dog
sniff test at a home is not a search. This implication should be
viewed as an illustration of what is wrong with the contraband
exception.
To recognize what is wrong with the contraband exception, it
is necessary first to understand how significant a shift it affected
in Fourth Amendment jurisprudence. In determining what
counted as a search under the Fourth Amendment, Katz focused
on the behavior of an individual in seeking to keep something
private.150 As set forth by Justice Harlan in the formulation that
became so influential, the analysis turned first to whether and
how an individual had indicated an intention to prevent
something from being exposed to public view.151 Under this
approach, the conception of privacy was relational. It concerned
the relation between an individual and whatever it was that the
individual did or did not seek to keep private.152 This way of
thinking about the Fourth Amendment’s protections invited
analysis of particular circumstances and context, especially an
individual’s actions with regard to the things in question. The
contraband exception, however, adopts a fundamentally different
approach. It shifts the focus to the specific object in question,
separating it from the individual who possesses the object.153 On
this conception, privacy does not concern the relationship
between an individual and an object; instead, it describes a
characteristic of the object itself. The Court in Katz said that the
Fourth Amendment “protects people, not places.”154 The
contraband exception to the Fourth Amendment protects only
150.
151.
152.
153.
154.
130
Katz v. United States, 389 U.S. 347, 351–52 (1967).
Id. at 361 (Harlan, J., concurring).
See id.
See id.
Id. at 351 (majority opinion).
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Dog Sniffs and 4th Amendment
certain objects.155 Once an item is declared illegal, it no longer is
protected.156 Under this view, when a legislature enacts a law
that makes the possession of an item illegal, it simultaneously
removes the item from Fourth Amendment protection.
Justice William Brennan realized the revolutionary import of
the contraband exception from its initiation. Concurring in Place,
he objected to the Court’s opinion regarding the dog sniff test
because it was unnecessary to the decision.157 In Jacobsen,
decided just one year after Place, Justice Brennan fully expressed
his objection to the contraband exception on the merits, stating
that the Court’s reasoning both in Place and Jacobsen was
“fundamentally misguided and could potentially lead to the
development of a doctrine wholly at odds with the principles
embodied in the Fourth Amendment.”158 Describing the
fundamental nature of the shift that the contraband exception
represented, Justice Brennan wrote: “What is most startling
about the Court’s interpretation of the term ‘search,’ . . . is its
exclusive focus on the nature of the information or item sought
and revealed through the use of a surveillance technique, rather
than on the context in which the information or item is
concealed.”159 Justice Brennan observed that the exception
marked a departure from the longstanding concept that an
otherwise invalid investigative technique could not be made right
simply based on the evidence that it ultimately yielded.160 While
conceding that a search revealing only the presence or absence of
contraband was less intrusive than other searches, Justice
Brennan insisted that the search nevertheless constituted an
intrusion, and he could not accept that an “individual’s
reasonable expectation of privacy dissipates simply because a
155.
156.
157.
158.
See United States v. Place, 462 U.S. 696, 701 (1983).
Id.
Id. at 719–20 (Brennan, J., concurring).
United States v. Jacobsen, 466 U.S. 109, 136 (1984) (Brennan, J.,
dissenting).
159. Id. at 137. Some scholars also have criticized the contraband exception.
See, e.g., Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?:
Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of The
Home, 88 OR. L. REV. 829, 832 (2009) (“If the legitimacy of our expectations of
privacy is determined primarily by the legality or illegality of the item
possessed, then the circumstances of that possession become irrelevant.”).
160. Jacobsen, 466 U.S. at 141 (Brennan, J., dissenting).
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sophisticated surveillance technique is employed.”161
The contraband exception misunderstands the basic
character of the Fourth Amendment’s protections. Like the
Constitution generally, the Fourth Amendment operates as a
limitation on governmental conduct.162 In practice, given the
Amendment’s subject matter, it operates chiefly as a limitation
on the actions of law enforcement.163 As such, it fundamentally
concerns the relation between individuals and law enforcement.
The Amendment regulates the balance of power between police
and citizens—between the heavy hand of the criminal law and
potential suspects. Since the Amendment concerns how and
when law enforcement can bring the power of law enforcement
into the lives of individuals,164 its protections should apply
regardless of what it is that law enforcement officials believe
they may find through the use of investigative techniques.
The contraband exception also has difficulties from a
practical standpoint. The exception assumes that items fall
clearly into one of two categories: contraband or not contraband.165 But questions of illegality often are more complicated.
After all, an item itself cannot be illegal. What is illegal is a
specific individual’s relation to the item. For example, an item
might be legal if possessed by one person but not by another.166
An item might be legal if possessed or used for one purpose, but
not if possessed or used for another.167 Legality may also vary
according to other variables, such as the applicable law within
the particular circumstance. Even items that are illegal if
possessed by anyone might only be the subject of a crime if the
161.
162.
163.
164.
165.
Id.
See Katz v. United States, 389 U.S. 347, 350 (1967).
See U.S. CONST. amend. IV.
Id.
See Jacobsen, 466 U.S. at 121 (“[S]ince it was apparent that the
[container held] contraband and little else, this warrantless seizure was
reasonable.”); United States v. Place, 462 U.S. 696, 701–03 (1983) (discussing
heightened governmental interest in seizure of a container where authorities
suspect container holds contraband).
166. See, e.g., 18 U.S.C. § 922(a)(1) (2006) (declaring receipt of firearm(s)
through interstate commerce by any unlicensed party illegal).
167. See, e.g., CAL. HEALTH & SAFETY CODE § 11362.5(d) (West 2012)
(legalizing possession and cultivation of marijuana by physician’s patient or
patient’s caregiver for patient’s personal medicinal purposes).
132
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Dog Sniffs and 4th Amendment
person possessing the items is knowingly doing so.168 Then there
is the additional complication that some laws go in and out of
force. One cannot always ask simply whether an item is legal or
illegal the way one might ask whether a pen has blue or black
ink.
The contraband exception has potentially far-reaching and
troubling implications. In Place, when the Court stated that a
dog sniff was not a search, the Court described the test as sui
generis and stated that it was “aware of no other investigative
procedure that is so limited both in the manner in which the
information is obtained and in the content of the information
revealed by the procedure.”169 Yet, the Justices became aware of
another similar investigative procedure just one year later. In
Jacobsen, the Court used exactly the same reasoning expressed
in Place to determine that an entirely different kind of test also
was not a search.170 As Justice Brennan stated in his dissent in
Jacobsen:
As it turns out, neither the Court’s knowledge nor its imagination regarding criminal investigative techniques proved very
sophisticated, for within one year we have learned of another
investigative procedure that shares with the dog sniff the same
defining characteristics that led the Court to suggest that the
dog sniff was not a search.171
Whatever the Court might have meant in using the term sui
generis, it is clear that dog sniff tests are not the only
investigative procedure that just as easily could be described as
revealing only the presence or absence of a particular substance.
When the Florida District Court in Jardines held that a dog
sniff at a home did not constitute a search,172 the case directly
conflicted with State v. Rabb.173 In holding that a dog sniff at a
home did constitute a search, the district court in Rabb warned of
168. See, e.g., 15 U.S.C. § 1245(a) (2006) (criminalizing act of knowingly
possessing ballistic knife).
169. Place, 462 U.S. at 707.
170. Jacobsen, 466 U.S. at 136 (Brennan, J., dissenting).
171. Id.
172. See Jardines III, 73 So. 3d 34, 35 (Fla. 2011), cert. granted in part, 565
U. S. ___, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564).
173. 920 So. 2d 1175 (Fla. Dist. Ct. App. 2006).
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the dangerous implications of adopting the reasoning behind the
contrary position.174 More specifically, the court wrote:
To reach any other conclusion re-calls the disturbing use of
robot-spiders (an emblem blending both the technological
advances of Kyllo and the animal senses of Rabb) to detect
fugitives who softened their identities by retinal
transplantation in Minority Report (Dreamworks 2002), or
similar scenarios in virtually any other dystopian science
fiction film.175
Cautionary references to science fiction can seem sensational.
After all, the genre by definition includes slightly exaggerated
versions of anything existing in current reality.176 But such
analogies sometimes are apt and telling because they are based
on a core of truth that is made easier to recognize through a
heightened depiction of reality.
In certain respects the colorful reference to the robot spiders
in Minority Report is off the mark.177 As depicted in the film,
these devices physically entered into residences and were capable
of detecting far more information than merely whether a
particular substance was present.178 Yet, we should not get
sidetracked by the ways in which the cultural reference is
exaggerated. The reference serves as a useful shorthand for a
serious problem with the contraband exception.
What makes the implications of the contraband exception
potentially so far-reaching is the seemingly inevitable and
accelerating pace of technological advances. While one cannot
predict precisely how technology will advance, one need not have
a crystal ball or an advanced scientific degree to anticipate the
development of additional tests that can be refined to reveal only
the absence or presence of a particular item or substance. As
presently expressed by the Supreme Court, and most recently
174. Id.; see Jardines III, 73 So. 3d at 35.
175. Rabb, 920 So. 2d at 1186.
176. See MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.mirriam
webster.com/dictionary (last visited Aug. 26, 2012).
177. MINORITY REPORT (Twentieth Century Fox Film Corp. 2002).
178. Id. It is difficult to resist noting that the crucial scene with the robot
spiders included the protagonist hiding in a tub of ice water to eliminate his
heat signature. Id.
134
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Dog Sniffs and 4th Amendment
and forcefully in Caballes, the reasoning underlying the contraband exception suggests no stopping point. The logic is
categorical. Individuals have no legitimate interest in keeping
contraband private, and it follows that an investigative procedure that reveals only the presence or absence of contraband is
not a search.179 If something is not a search, it is taken entirely
outside of the Fourth Amendment’s protections.180
The reference to robot spiders should not be dismissed as
hyperbolic or sensationalistic. In light of the technologies that
already are widely known and the pace of technological advance,
it is not difficult to imagine small, discreet, mechanical devices
that could be maneuvered remotely close to a home in order to
determine the presence or absence of any number of different
illegal substances. It also is not difficult to imagine why such
devices might be perceived as highly attractive by policymakers
and law enforcement officers. They could be seen as reducing the
risk to police officers—obviously an extremely important end.
They also might be seen as benefiting the suspect at least in one
regard—they might cause less public embarrassment than a dog
sniff, which could attract the attention of nosy and judgemental
neighbors.
To be more specific, suppose that a small, remotely controlled
device could be placed just outside an individual’s home, which
could detect the presence of cocaine. There simply does not
appear to be anything in the logic behind the contraband
exception that would prevent law enforcement from deploying
such devices at will. If one device to detect cocaine were
acceptable, then another device to detect marijuana and another
to detect prohibited explosives would be equally justifiable. And
so on. Perhaps some would say that the scenario described falls
within the camp of hysterical musings. If that is the case, we at
least can hope that the Justices will explain in their future
rulings in this area why this is so; that is, they should articulate
a limiting principle for the contraband exception that would allay
the concerns expressed here. Justice Brennan expressed a
similar sentiment when he wrote in his Jacobsen dissent:
179. See Illinois v. Caballes, 543 U.S. 405, 408–09 (citing United States v.
Jacobsen, 466 U.S. 109 (1984)).
180. See U.S. CONST. amend. IV.
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The Court’s analysis is so unbounded that if a device were
developed that could detect, from the outside of a building, the
presence of cocaine inside, there would be no constitutional
obstacle to the police cruising through a residential
neighborhood and using the device to identify all homes in
which the drug is present.181
V. CONCLUSION
In raising concerns regarding the contraband exception, I do
not mean to suggest that Fourth Amendment jurisprudence
should not take into account the differences between various
kinds of investigative procedures with respect to the level of
intrusion that they occasion. The proper doctrinal vehicle for
taking into account such differences, however, is in determining
whether a particular kind of search is unreasonable under the
Fourth Amendment. Concluding that a particular investigatory
technique is a Fourth Amendment “search” obviously does not
eliminate it from law enforcement’s toolkit. It simply means that
law enforcement is subject to the Amendment in the way that it
employs the technique.182 The categorical manner in which the
contraband exception operates in its present incarnation,
however, is troubling, because it contains no limiting principle. It
appears to pave the way for the development and indiscriminate
use of any number of devices that could be presented as revealing
nothing more than the presence or absence of contraband.
The Fourth Amendment protects people, not a certain class of
approved items. We should be concerned about a jurisprudence
that classifies items simplistically as either in or out of Fourth
Amendment protection. The Amendment’s protection is more
complex and vital than such a conception allows. The Amendment regulates the delicate balance between private citizens and
the most awesome power of the government—to prosecute
crimes. The contraband exception upsets that balance to a
disturbing degree.
181. Jacobsen, 466 U.S. at 138 (Brennan, J., dissenting).
182. See id.
136
DESPERATELY SEEKING SCRUTINY: WHY
THE SUPREME COURT SHOULD USE FISHER
V. UNIVERSITY OF TEXAS TO RESTORE
MEANINGFUL REVIEW TO RACE-BASED
COLLEGE ADMISSION PROGRAMS
Joshua P. Thompson & Adam R. Pomeroy
I.
II.
III.
IV.
INTRODUCTION ............................................................... 140
WHAT MAKES AN INTEREST “COMPELLING?” ......... 143
A. Creation of the Compelling Interest Test in Equal
Protection Law ............................................................. 144
B. Weighing the Scales in a Compelling Interest
Inquiry .......................................................................... 149
ANY BENEFITS THAT FLOW FROM A DIVERSE
STUDENT BODY ARE SPECULATIVE AND CAN BE
ATTAINED WITHOUT RACIAL DISCRIMINATION ..... 154
A. The Utility of Social Science “Evidence” When
Analyzing a State’s Offered Compelling Interest ....... 155
B. The Benefits That Flow from a Diverse Student
Body Can Be Accomplished Without Racial
Discrimination .............................................................. 159
1. Minority Educational Opportunities,
Achievements, and Enrollments Have Increased
Since the Passage of Proposition 209 ..................... 161
2. Minority Enrollment Throughout Michigan Has
Increased Since the Passage of Proposal 2 ............ 164
THE COSTS ATTENDANT TO RACIAL CLASSIFICATIONS
OUTWEIGH THE BENEFITS THAT FLOW FROM A DIVERSE
STUDENT BODY .................................................................... 167
Joshua P. Thompson, Staff Attorney, Pacific Legal Foundation, and Adam R.
Pomeroy, Second-year Fellow, College of Public Interest Law, Pacific Legal
Foundation, Pacific Legal Foundation Program for Judicial Awareness,
Working Paper No. 12-002 (August 1, 2012). Mr. Thompson served as lead
counsel for the Pacific Legal Foundation, Center for Equal Opportunity,
American Civil Rights Institute, National Association of Scholars, and Project
21 on their amicus brief to the Supreme Court in Fisher v. University of Texas
at Austin.
139
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V.
VI.
[Volume VII
A. Government Racial Classifications Are Destructive
of Democratic Society ................................................... 168
B. Government Racial Classifications Dehumanize
Individuals .................................................................... 169
C. Racial Preferences in College Admissions Cause
Serious Harm to the Very Students the Preferences
Are Intended to Benefit ............................................... 172
STARE DECISIS PRINCIPLES CANNOT SAVE
GRUTTER ........................................................................... 176
A. Grutter Departs from the Constitution’s Text ............ 176
B. Grutter Fails the Patterson Factors............................. 179
CONCLUSION.................................................................... 183
I. INTRODUCTION
The 2011 Supreme Court term was one of the most watched
in recent memory. With all eyes transfixed on the Court’s
decision in National Federation of Independent Business v.
Sebelius,1 which upheld the individual mandate provision2 of the
Patient Protection and Affordable Care Act,3 it was easy to
overlook the important cases upcoming in the 2012 term. On that
score, the 2012 Supreme Court term is shaping up to be one of
the most important terms for the future of the Equal Protection
Clause4 and the continued legality of state-sponsored racial
discrimination and preferences. Certiorari petitions have been
filed that challenge the constitutionality of section 5 of the Voting
Rights Act,5 as well as the legality of a disparate impact cause of
action under the Fair Housing Act.6 But the most watched case is
1. 567 U.S. ___ , 132 S. Ct. 2566 (2012).
2. 26 U.S.C. § 5000A (2006).
3. Pub. L. No. 111-148, 124 Stat. 119 (to be codified at 42 U.S.C. §§18001–
18081).
4. U.S. CONST. amend. XIV, § 1, cl. 2.
5. Shelby Cnty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012), petition for cert.
filed, 81 U.S.L.W. 3064 (U.S. July 20, 2012) (No. 12-96).
6. Mount Holly Gardens Citizens in Action, Inc. v. Township of Mount
Holly, 658 F.3d 375 (3d Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3711 (U.S.
June 11, 2012) (No. 11-1507). Interestingly, during the 2011 term, the Supreme
Court granted certiorari in a different case challenging the legality of a
disparate impact cause of action under the Fair Housing Act. See Gallagher v.
140
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Race-Based Admissions
sure to be one that was already granted certiorari, Fisher v.
University of Texas at Austin.7
Fisher challenges the constitutionality of the University of
Texas at Austin’s (University) race-conscious admissions policy
under the Equal Protection Clause.8 The University grants
admissions preferences to Hispanic and black applicants, while
discriminating against Asian and white students.9 The case is a
follow-up to the Supreme Court’s 2003 decision, Grutter v.
Bollinger.10 In Grutter, the Supreme Court held that the
University of Michigan Law School (Law School) had a
compelling interest in “the educational benefits that flow from a
diverse student body.”11 The Law School’s race-based admissions
policy—which the Court also held was narrowly tailored—
furthered this compelling interest and did not violate the equal
protection rights of individuals that suffered from its statesponsored discrimination.12
Throughout the Fisher litigation, the University’s primary
defense of its race-based admissions policy has been that it
strictly conforms to the Grutter decision.13 Similarly, both the
district court and the Fifth Circuit relied almost exclusively on
Magner, 619 F.3d 823 (8th Cir. 2010), cert. granted, 123 S. Ct. 548 (Nov. 7,
2011) (No. 10-1032). However, after pressure from the Obama Administration,
the City of St. Paul voluntarily dismissed its petition. See Magner v. Gallagher,
132 S. Ct. 1306 (2012); Squeezed in St. Paul, WALL ST. J. (Feb. 12, 2012, 6:51
PM), http://online.wsj.com/article/SB10001424052970203824904577215514125
903018.html.
7. Fisher v. Univ. of Tex. at Austin (Fisher II), 631 F.3d 213 (5th Cir.
2011), cert. granted, 132 S. Ct. 1536 (Feb. 21, 2012) (No. 11-345).
8. Id. at 217.
9. See id. at 230 (“[R]ace is undisputedly a meaningful factor that can
make a difference in the evaluation of a student’s application.”) (internal
quotation marks omitted); see also Roger Clegg & Joshua Thompson, Supreme
Court: After Health Care Ruling, Court Must Rule Against Affirmative Action,
CHRISTIAN SCI. MONITOR, June 21, 2012, http://www.csmonitor.com/
Commentary/Opinion/2012/0621/Supreme-Court-After-health-care-ruling-courtmust-rule-against-affirmative-action (“[I]n 2009, admitted Asians had an
average SAT score 197 points higher than the average score for admitted
Hispanics.”).
10. 539 U.S. 306 (2003).
11. Id. at 328.
12. Id. at 343.
13. See Fisher II, 631 F.3d at 247; Fisher v. Univ. of Tex. at Austin (Fisher
I), 645 F. Supp. 2d 587, 593–96 (W.D. Tex. 2009).
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Grutter in upholding the University’s admissions program.14 The
district court went so far as to conclude its lengthy opinion with
the pithy retort, “[i]f the Plaintiffs are right, Grutter is wrong.”15
On appeal, Judge Garza “concur[red] in the majority opinion,
because, despite [his] belief that Grutter represents a digression
in the course of constitutional law, [the majority] opinion is a
faithful, if unfortunate, application of that misstep.”16
There remains, however, considerable disagreement whether
the University’s admissions policy strictly adheres to the Grutter
decision.17 Dissenting from the denial of rehearing en banc, Chief
Judge of the Fifth Circuit, Edith Jones, listed numerous
constitutional distinctions that brought the University’s
admissions policy outside of the Grutter framework.18 Scholars
have also noted multiple avenues that the Supreme Court could
use to distinguish Fisher from Grutter.19 Indeed, Ms. Fisher’s
opening brief in the United States Supreme Court almost
exclusively argues that the Fifth Circuit should be reversed
because the admissions policy does not follow Grutter.20
But, before the Supreme Court even arrives at the question
of the University’s purported strict adherence to Grutter—and
whether the University’s plan is narrowly tailored—the Court
must first ask whether Grutter should be its guidepost for
determining the constitutionality of the University’s admissions
policy in the first instance. This article argues that it should not;
Grutter was an aberration in equal protection law that should be
explicitly overruled.
Grutter was wrongly decided because a state’s interest in
securing the benefits that flow from a diverse student body is not
14.
15.
16.
17.
Fisher II, 631 F.3d at 213; Fisher I, 645 F. Supp. 2d at 600–01.
Fisher I, 645 F. Supp. 2d at 612.
Fisher II, 631 F.3d at 247 (Garza, J., concurring specially).
Fisher v. Univ. of Tex. at Austin (Fisher III), 644 F.3d 301 (5th Cir.
2011) (en banc) (Jones, C.J., dissenting).
18. Id. at 303.
19. See Joshua P. Thompson & Damien M. Schiff, Divisive Diversity at the
University of Texas: An Opportunity for the Supreme Court to Overturn Its
Flawed Decision in Grutter, 15 TEX. REV. L. & POL. 437, 471–77 (2011) (noting
different ways the Supreme Court could overrule Fisher without overruling
Grutter).
20. See Brief of Petitioner at 26–53, Fisher v. Univ. of Tex. at Austin, 565
U.S. ___, 132 S. Ct. 1536 (2012).
142
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Race-Based Admissions
sufficiently compelling to justify state-sponsored racial and
ethnic discrimination. This article takes a methodical approach
to arrive at this conclusion. It begins with an abbreviated primer
on the rise of strict scrutiny as a jurisprudential tool for
analyzing state action, focusing on the compelling interest prong
of that test. Having thus established a lens from which to view a
state’s offered compelling interest, Parts III and IV demonstrate
how Grutter fails to follow the established framework for equal
protection. Both Parts III and IV attack the Grutter Court’s
finding that universities have a compelling interest in achieving
a diverse student body, but from different perspectives. The
former disputes the Court’s finding that the benefits that flow
from a diverse student body is sufficiently compelling to justify
race-based classifications, whereas the latter details the Grutter
Court’s failure to consider the substantial costs that accompany
race-based classifications. After determining that the Grutter
Court’s compelling interest holding cannot be logically defended
on traditional equal protection grounds, Part V rejects any
attempt to save Grutter under principles of stare decisis.
In Grutter, the Court created a twenty-five year safe haven
for universities to discriminate against individuals so long as
they are acting to secure the benefits that flow from a diverse
student body.21 Nine years after that remarkable decision, Fisher
presents an opportunity to right that constitutional wrong and
save students sixteen more years of unnecessary discrimination.
II. WHAT MAKES AN INTEREST “COMPELLING?”
The Grutter Court was the first and only Court that found
the government’s interest in diversity to be sufficiently
compelling to overcome the presumption against classifying
individuals according to their race. In order to understand where
that decision came from—and why it is wrong—it is important to
understand what makes a certain interest compelling and what
it means for government to assert a compelling interest. This
section tackles these issues. First, this section provides a brief
21. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (Justice O’Connor
remarked that “[w]e expect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest approved today.”).
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primer on strict scrutiny review and how it became commonplace
in equal protection law. Second, it focuses on the compelling
interest prong of strict scrutiny and what judicial motives it
serves. The section concludes with an analysis of compelling
interest findings of the Supreme Court in the equal protection
cases decided before Grutter and provides a framework for
analyzing the compelling interest advanced in Grutter.
A. Creation of the Compelling Interest Test in Equal Protection
Law
Today, all governmental acts must be able to survive some
level of bifurcated review in order to be constitutional. Most
governmental acts easily survive such challenges because they
rationally promote a legitimate government interest.22 On the
other end of the spectrum are those governmental acts that
employ a suspect classification,23 or those acts that burden a
fundamental interest.24 Such an act must survive strict scrutiny
and is only constitutional where the government demonstrates25
22. Because the government has many legitimate purposes, almost all
state actions survive this level of deferential review. See LAURENCE H. TRIBE,
AMERICAN CONSTITUTIONAL LAW 1439–43 (2d ed. 1988); ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 688–95 (4th ed. 2006). It is the
rare case that fails this level of review. See Craigmiles v. Giles, 312 F.3d 220,
228 (6th Cir. 2002) (striking down a licensing scheme for individuals that sold
caskets because the court could find “no rational relationship to any of the
articulated purposes of the state . . . .”). But see Merrifield v. Lockyer, 547 F.3d
978, 990–92 (9th Cir. 2008) (holding that a licensing exemption for certain
pesticide handlers did not have a rational basis).
23. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“[A]ll
racial classifications . . . must be analyzed by a reviewing court under strict
scrutiny.”).
24. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (holding that strict
scrutiny applies to state laws that burden “the right of individuals to associate
for the advancement of political beliefs, and the right of qualified voters,
regardless of their political persuasion, to cast their votes effectively.”).
25. When a suspect classification or fundamental right is implicated, the
government must prove both prongs of strict scrutiny. See Monterey Mech. Co.
v. Wilson, 125 F.3d 702, 713 (9th Cir. 1997) (“The burden of justifying different
treatment by ethnicity or sex is always on the government.”). This is the
converse of rational basis review where the plaintiff bears the burden of
negating the government’s rational basis. See Heller v. Doe, 509 U.S. 312, 319–
20 (1993).
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the act furthers a compelling interest26 in a manner least
restrictive27 of the right being protected.28 Strict scrutiny is, in
simple terms, a bifurcated ends-means test. The government
must pursue a compelling end, using only those means necessary
to achieve that end.
Strict scrutiny has historical roots in equal protection,29 but
mostly evolved through First Amendment cases.30 The means
test, narrow tailoring, is the older of the two components of strict
scrutiny.31 “By 1940, the New Deal Court had made narrow
tailoring analysis a prominent part of First Amendment
jurisprudence.”32 It wasn’t until 1964 that the Warren Court
introduced narrow tailoring into equal protection jurisprudence.33
The compelling interest prong of strict scrutiny followed a
similar path—from First Amendment to the equal protection law.
It was first mentioned in the 1957 case of Sweezy v. New
Hampshire,34 but did not become solidified in First Amendment
26. For example, in Wygant v. Jackson Board of Education, the Supreme
Court struck down a racial classification that the state attempted to justify on
the grounds that it was “providing ‘role models’ for minority schoolchildren”
because the Court did not find that interest compelling. 476 U.S. 267, 272, 276
(1986).
27. In two well-known recent cases, the Supreme Court rejected race-based
classifications where the means employed by the state were not “narrowly
tailored” to the interest the state was purporting to support. See Parents
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 787 (2007)
(plurality opinion) (striking down a secondary school busing policy); Gratz v.
Bollinger, 539 U.S. 244, 270 (2003) (striking down a racial classification used in
undergraduate admissions).
28. For a general discussion of the three tenets of strict scrutiny review,
see CHEMERINSKY, supra note 22, at 690–778.
29. See Korematsu v. United States, 323 U.S. 214 (1944). For a more
thorough discussion of Korematsu’s role in the development of strict scrutiny for
racial classifications, see, for example, Thompson & Schiff, supra note 19, at
441–43; Stephen A. Siegel, The Origin of the Compelling State Interest Test and
Strict Scrutiny, 48 AM. J. LEGAL HIST. 355, 381–84 (2006).
30. For a more thorough historical explanation of the rise of strict scrutiny,
the compelling interest test, and their role in equal protection see generally
Siegel, supra note 29.
31. Id.
32. Id. at 361.
33. Id.; see also McLaughlin v. Florida, 379 U.S. 184, 196 (1964);
McLaughlin, 379 U.S. at 197 (Harlan, J., concurring).
34. 354 U.S. 234 (1957). In his concurring opinion Justice Frankfurter
wrote that “[p]olitical power must abstain from intrusion into this activity of
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law until the 1963 case of Sherbert v. Verner.35 The requirement
that the state must prove a compelling interest under the Equal
Protection Clause for its decision to engage in racial
classifications was first accepted by the Supreme Court twenty
years after it became solidified in First Amendment law in
Sherbert.36 That case, Palmore v. Sidoti, held that a state did not
have compelling interest in classifying individuals, on the basis
of race, in order to protect children from racial prejudices.37
In equal protection law, the compelling interest test serves
two important purposes: (1) a tool to “‘smoke-out’ illegitimate
uses of race;”38 and (2) to “determine[] whether a compelling
governmental interest justifies infliction of [racial discrimination].”39 The former is used by the Court to per se invalidate a
number of improper governmental purposes.40 The latter views
racial classifications as per se suspect, which can only be justified
after a thorough cost-benefit vetting.41 That is, under the latter
rationale, the court asks whether the benefits derived from the
state’s racial classification can, in a certain particular
freedom, pursued in the interest of wise government and the people’s wellbeing, except for reasons that are exigent and obviously compelling.” Id. at 262
(Frankfurter, J., concurring). He went on to note that “[f]or a citizen to be made
to forego even a part of so basic a liberty as his political autonomy, the
subordinating interest of the State must be compelling.” Id. at 265.
35. 374 U.S. 398 (1963). See Siegel, supra note 29, at 364–92 (Siegel
explains the creation and evolution of the compelling interest in detail).
36. See Siegel, supra note 29, at 392 (“Thus, it was not until 1984, in
Palmore v. Sidoti, that an opinion for the Court declared that ‘to pass
constitutional muster’ racial classifications ‘must be’ both narrowly tailored and
‘justified by a compelling governmental interest.’” (quoting Palmore v. Sidoti,
466 U.S. 429, 432 (1984) (internal citations omitted)).
37. Palmore, 466 U.S. at 433. While it is true that Justice Powell’s Bakke
opinion in 1978 held that “diversity is compelling,” he was writing for himself,
and no other Justice joined his opinion. See Regents of the Univ. of Cal. v.
Bakke, 438 U.S. 265, 314 (1978); see also Thompson & Schiff, supra note 19, at
444–46 (discussing the creation of the compelling interest in diversity and the
weight of Justice Powell’s opinion).
38. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
39. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230 (1995); see also
Siegel, supra note 29, at 393–94 (discussing the two purposes of strict scrutiny
review).
40. Siegel, supra note 29, at 398 (“Although strict scrutiny can be, and has
been, used as a cost-benefit justification device, the Warren Court did not use it
that way in its racial discrimination cases.”).
41. See Adarand Constructors, 515 U.S. 200.
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circumstance, justify the costs the state’s discriminatory act
imposes.42
Most scholars agree that the “smoke-out” rationale was the
Supreme Court’s original purpose of using the compelling
interest prong of strict scrutiny.43 The Supreme Court found that
state attempts to segregate individuals on the basis of race were
per se improper, and routinely struck down those policies.44 But,
as we have seen, the Warren Court did not employ “compelling
interest” language when determining the constitutionality of
segregation policies—that language was not adopted by the
Supreme Court until Palmore v. Sidoti in 1984.45 By the time the
compelling interest prong of strict scrutiny became hornbook
equal protection law, the Supreme Court had moved past the
segregation cases46 of the 1950s and 1960s. Thus, it is inaccurate
to describe the segregation cases as following the smoke-out
rationale of the compelling interest component of strict scrutiny.
Instead, the illicit motive the Court was smoking out in the
segregation cases was discovered through a narrow tailoring
analysis, not a compelling interest one. “In those cases, narrow
tailoring was employed to demonstrate that the laws at bar were
part of the system of White Supremacy, an illicit motive if ever
the Warren Court saw one.”47
When the compelling interest inquiry became required in
race-based equal protection law in Palmore, the Court had no use
for employing the smoke-out rationale when vetting a state’s
race-conscious act. The equal protection cases heard by the
Supreme Court in the 1980s, 1990s, and 2000s dealt with
affirmative action programs,48 not attempts by the government to
42. See id.
43. Siegel, supra note 29, at 394.
44. See, e.g., Turner v. City of Memphis, 369 U.S. 350 (1962); New Orleans
Park Improvement Ass’n v. Detiege, 358 U.S. 54 (1958); Florida ex rel. Hawkins
v. Bd. of Control of Fla., 350 U.S. 413 (1956); Brown v. Bd. of Educ. of Topeka,
349 U.S. 294 (1955); Holmes v. City of Atlanta, 350 U.S. 879 (1955); Mayor of
Balt. v. Dawson, 350 U.S. 877 (1955).
45. 466 U.S. 429, 432 (1984).
46. See cases cited supra note 44.
47. Siegel, supra note 29, at 398.
48. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986);
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engage in racial segregation or some other per se improper
motive.
Viewed properly then, the compelling interest prong of strict
scrutiny has always been a cost-benefit analysis. It was the
rationale ascribed to the earliest compelling interest cases under
the First Amendment. “Tracing the roots of strict scrutiny into
the First Amendment when balancing of interests was its
paradigmatic form of legal thought suggests that ‘costjustification’ was its original point. Balancing of interests
essentially is a jurisprudence of cost-benefit analysis, not motive
discovery.”49 Further, “cost-justification” was also the rationale
the Court undertook when scrutinizing a state’s asserted
compelling interest in the affirmative action cases, the cases that
conveniently mark the beginning of compelling interest inquiries
in equal protection jurisprudence.
Justice O’Connor’s opinion in Croson notwithstanding, the
smoke-out rationale has never been used as the purpose of the
compelling interest inquiry. Insofar as the Court was smoking
out illicit motives with the segregation cases, it was doing so
under a narrow tailoring inquiry.50 Yet, this created a minor
quandary for the Court—a compelling interest needed to be
created that justified the race-conscious programs it approved to
ameliorate the effects of decades of segregation.51 The Court,
nunc pro tunc, held that those programs were justified under the
compelling interest of remedying the past effects of intentional
discrimination.52 While those decisions can certainly be seen as
Fullilove v. Klutznick, 448 U.S. 448 (1980) (plurality opinion).
49. Siegel, supra note 29, at 394.
50. J.A. Croson Co., 488 U.S. at 508.
51. For example, in a number of school desegregation cases following
Brown, the Supreme Court affirmed race-conscious remedies designed to
combat past de jure discrimination. See Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1 (1971); Green v. Cnty. Sch. Bd. Of New Kent Cnty., 391 U.S.
430 (1968); Brown v. Bd. of Educ., 349 U.S. 294 (1955) (Brown II).
52. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 720 (2007) (plurality opinion) (“[O]ur prior cases, in evaluating the
use of racial classifications in the school context, have recognized two interests
that qualify as compelling. The first is the compelling interest of remedying the
effects of past intentional discrimination.”); Freeman v. Pitts, 503 U.S. 467, 494
(1992) (reading Swann as permitting race-conscious remedies where a school
has an interest in remedying past de jure discrimination).
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serving the smoke-out rationale of the compelling interest prong
of strict scrutiny, it is an unnecessary debate. Few would argue
that benefits derived from remedying decades of intentional
discrimination were not outweighed by the costs of temporary
race-based busing policies.
Accordingly, it is irrelevant whether the busing cases should
be viewed as employing the cost-benefit approach or the smokeout approach to the compelling interest prong of strict scrutiny.
In fact, they used neither—the Court invalidated the state acts
for their illicit motives under the narrow tailoring prong of strict
scrutiny. Today, if a state actor attempts to engage in blatant
segregationist policies, the court can determine if its action fails
the compelling interest prong of strict scrutiny because the state
has an illicit motive, or, it can invalidate the measure because
the costs imposed by the state’s action significantly outweigh any
purported benefit. For Fisher and other affirmative action type
cases, however, from an historical and logical perspective, the
state must prove its compelling interest through a cost-benefit
analysis.
B. Weighing the Scales in a Compelling Interest Inquiry
While a cost-benefit analysis is the correct method to
determine when a state has a compelling interest to discriminate
against individuals, how is that analysis to be conducted? At
what point should a court be confident to announce that the
benefits of discrimination significantly outweigh the costs
imposed by the discrimination? In the twenty years that elapsed
from Palmore—when the compelling interest inquiry became
part of equal protection law—to Grutter, the Supreme Court has
provided much insight into answering these questions.
The inquiry into how the Supreme Court evaluates the costs
and benefits of a state’s asserted compelling interest under equal
protection must begin with the reason race-conscious
classifications are suspect. Of course, the Equal Protection
Clause of the Fourteenth Amendment provides the textual
basis,53 and it is widely agreed that it protects “persons, not
53. U.S. CONST. amend XIV, § 1, cl. 2 (“No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United
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groups.”54 “It follows from that principle that all governmental
action based on race—a group classification long recognized as ‘in
most circumstances irrelevant and therefore prohibited’— should
be subjected to detailed judicial inquiry to ensure that the
personal right to equal protection of the laws has not been
infringed.”55 The Fourteenth Amendment’s intent is to ensure
that all persons will be treated as individuals, not “as simply
components of a racial . . . class.”56 “Race-based assignments
‘embody stereotypes that treat individuals as the product of their
race, evaluating their thoughts and efforts—their very worth as
citizens—according to a criterion barred to the Government by
history and the Constitution.’”57
Because racial classifications are inherently pernicious,
finding a compelling interest that justifies racially discriminatory
policies is extremely difficult. “[R]acial classifications are simply
too pernicious to permit” anything but the most needed
justifications.58 Indeed, since the inception of strict scrutiny
analysis for race-based classifications, the Supreme Court has
found only one interest—but rejected many—that was
sufficiently compelling to justify state-sponsored racial
discrimination.59
While it is true that the Supreme Court did not use the
compelling interest framework in racial equal protection cases
before 1984,60 it is still important to look at the compelling
interests the Court retroactively read into some of the earlier
race cases. For example, in Adarand, the Court took a retroactive
look at the compelling interest of “national security” that the
States; nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”).
54. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
55. Id. (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
56. Miller v. Johnson, 515 U.S. 900, 911 (1995) (quoting Metro Broad., Inc.
v. FCC, 497 U.S. 547, 602 (1990) (O’Connor, J., dissenting)).
57. Id. at 912 (quoting Metro Broad., 497 U.S. at 604 (O’Connor, J.,
dissenting)).
58. Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quoting Fullilove v.
Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting) (plurality opinion)).
59. See cases cited supra note 44; Parents Involved in Cmty. Schs. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (plurality opinion).
60. See cases cited supra notes 44 and 45.
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Court had found in Korematsu.61 In Korematsu, amid antiJapanese sentiment, a World War II Supreme Court held that
national security was a compelling government interest that
permitted the government to exclude all persons of Japanese
ancestry from military zones on the West Coast.62 The Adarand
Court questioned the older Court’s lackadaisical approach to
finding a compelling interest.63 “Any retreat from the most
searching judicial inquiry can only increase the risk of another
such error occurring in the future.”64 With the Adarand Court’s
renunciation of Korematsu, it is apparent that finding a
“compelling interest” requires much more than mere
speculation.65
In the only instance (before Grutter) where the Court found
an interest sufficiently compelling to permit race-based
discrimination, it did so retroactively.66 That interest—
“remedying the effects of past intentional discrimination”67—
came from the school desegregation cases where the Court
61. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236 (1995).
62. See Korematsu v. United States, 323 U.S. 214, 223 (1944).
63. See Adarand Constructors, 515 U.S. at 236. The Korematsu Court
wrote words resembling the modern-day strict scrutiny test. See Korematsu, 323
U.S. at 216 (“It should be noted, to begin with, that all legal restrictions which
curtail the civil rights of a single racial group are immediately suspect. That is
not to say that all such restrictions are unconstitutional. It is to say that courts
must subject them to the most rigid scrutiny.”). Outside of that language,
however, there are no similarities between the Korematsu Court’s application of
strict scrutiny and the modern application of the doctrine. See Siegel, supra
note 29, at 382 (“Perhaps Black’s intimation in Korematsu that the state had a
higher burden of justification was of no moment. The analysis he employed in
the case was a form of rational basis review that was exceedingly deferential to
the military’s claims.”). Thus, it is somewhat unfair to criticize the older Court’s
application of a test it never used. Nevertheless, the Adarand Court’s discussion
of Korematsu provides needed analysis on how strictly courts should examine
the costs and benefits of a state’s purported interest before deeming it
compelling.
64. Adarand Constructors, 515 U.S. at 236.
65. See Brandon M. Carey, Diversity in Higher Education: Diversity’s Lack
of a “Compelling” Nature, and How the Supreme Court Has Avoided Applying
True Strict Scrutiny to Racial Classifications in College Admissions, 30 OKLA.
CITY U. L. REV. 329, 345 (2005).
66. See cases cited supra note 44.
67. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 720 (2007) (plurality opinion).
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approved race-conscious desegregation plans.68 Of these, Swann
v. Charlotte-Mecklenburg Board of Education69 is of particular
importance because the Court was conscious of the problems with
an open-ended grant of authority to racially balance schools:
Our objective in dealing with the issues presented by these
cases is to see that school authorities exclude no pupil of a
racial minority from any school, directly or indirectly, on
account of race; it does not and cannot embrace all the
problems of racial prejudice, even when those problems
contribute to disproportionate racial concentrations in some
schools.70
Before Grutter, the Supreme Court never approved a racial
classification that was not designed to remedy the effects of past
intentional discrimination. In Wygant v. Jackson Board of
Education, it rejected racial classifications to further an interest
“in providing minority role models for its minority students.”71
The Supreme Court also rejected racial classifications to remedy
the effects of societal discrimination.72 And it also rejected
Florida’s interest in protecting the welfare of a child as
sufficiently compelling to permit race-based discrimination.73
Even Justice Powell, who argued in favor of diversity’s
compelling nature in Bakke, was hesitant to expand the doctrine
in Fullilove v. Klutznick.74 Fullilove involved a 10% minority setaside program for certain federal contracts.75 The Court
recognized that “[t]he history of governmental tolerance of
practices using racial or ethnic criteria . . . must alert us to the
deleterious effects of even benign racial or ethnic classifications
68.
69.
70.
71.
72.
See cases cited supra note 44.
402 U.S. 1 (1971).
Id. at 23.
476 U.S. 267, 274 (1986).
See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989) (“To
accept Richmond’s claim that past societal discrimination alone can serve as the
basis for rigid racial preferences would be to open the door to competing claims
for ‘remedial relief’ for every disadvantaged group.”).
73. See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“[P]rivate biases and
the possible injury they might inflict are [im]permissible considerations for
removal of an infant child from the custody of its natural mother.”).
74. 448 U.S. 448 (1980) (plurality opinion).
75. Id. at 453.
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when they stray from narrow remedial justifications.”76 Justice
Powell, while joining the majority opinion, wrote separately in
Fullilove to note that the racial classifications, despite being
permissible in this narrow instance, nevertheless, like all racial
classifications, must be subjected to the most rigorous judicial
scrutiny to survive.77
“At the heart of the Constitution’s guarantee of equal
protection lies the simple command that the Government must
treat citizens ‘as individuals, not “as simply components of a
racial, religious, sexual or national class.’”78 To ensure that this
right is not infringed, the Supreme Court requires that “all racial
classifications” be supported by only the most compelling of
justifications.79 “Simply because the [government] may seek a
worthy goal does not mean they are free to discriminate on the
basis of race to achieve it, or that their racial classifications
should be subject to less exacting scrutiny.”80
It is impossible to quantify precisely how courts should weigh
each asserted cost against each purported benefit when
determining if the government has an overriding compelling
interest to classify individuals according to their race. But these
cases illuminate important principles that bear on the calculus.
First, the purported benefits resulting from the racially
discriminatory act must be of paramount government importance.81 That is, the asserted benefits must be beyond dispute
after subjecting the state’s claimed interest to the “most rigorous”
judicial review available.82 Second, those benefits must unequivocally outweigh the non-speculative costs attendant to
racially discriminatory policies.83
76. Id. at 486–87.
77. See id. at 496 (Powell, J., concurring).
78. Miller v. Johnson, 515 U.S. 900, 911 (1995) (quoting Metro Broad., Inc.
v. FCC, 497 U.S. 547, 602 (1990) (O’Connor, J., dissenting)).
79. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
80. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 743 (2007) (plurality opinion).
81. Miller, 515 U.S. at 920.
82. Id.
83. Parents Involved, 551 U.S. at 745 (“If the need for the racial
classifications . . . is unclear, . . . the costs are undeniable.”).
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Only if those two criteria are met can the state’s purported
interest be sufficiently compelling to constitutionalize the
discriminatory act. Prior to Grutter, the Court had only uncovered one interest that met this heavy burden—alleviating the
effects of decades of intentional discrimination and racist Jim
Crow policies.84 Now, turning to Grutter, it is time to analyze the
Law School’s asserted compelling interest under this established
framework.
III. ANY BENEFITS THAT FLOW FROM A DIVERSE
STUDENT BODY ARE SPECULATIVE AND CAN BE
ATTAINED WITHOUT RACIAL DISCRIMINATION
In Grutter, the Supreme Court found a compelling interest
untethered to remedying the past effects of intentional discrimination: the interest in reaping “the educational benefits that flow
from a diverse student body.”85 Interestingly, the Court wrote the
cost-benefit conclusion directly into its compelling interest
finding; it was the “educational benefits that flow” from student
body diversity that the Court found compelling.86 After announcing the result, the Grutter Court “embarked on an extended
discussion of various educational benefits alleged to flow from a
diverse student body, relying heavily on a number of amicus
briefs to show that such benefits extend beyond the classroom to
the workplace, politics, and military.”87
When embarking on a compelling interest cost-benefit
inquiry, however, the Court is required to undertake rigorous
review of the purported benefits.88 After all, these benefits must
be compelling enough to justify government action that facially
84. See cases cited supra note 44.
85. Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
86. Id. at 317–18. This language, while interesting, is largely redundant.
As noted in Section II, supra, all compelling interest inquiries result from a
cost-benefit analysis. For example, instead of holding that the state has a
compelling interest in remedying the effects of past intentional discrimination,
the Court could just as well hold that the state has a compelling interest in the
benefits that flow from remedying the effects of past intentional discrimination.
87. Thompson & Schiff, supra note 19, at 454; see also Grutter, 539 U.S. at
330–33.
88. See Fullilove v. Klutznick, 448 U.S. 448, 496 (1980) (Powell, J.,
concurring) (plurality opinion).
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discriminates against individuals on the basis of skin color. The
Grutter Court’s “benefits” analysis is flawed for two primary
reasons.89 First, the nature of social science evidence in general—
and the evidence relied upon in Grutter in particular—is an
inherently poor rationale for infringing constitutionally protected
rights. Second, students are thriving in states that have banned
the use of racial preferences in education, undercutting the claim
that preferences are sufficiently compelling to justify racial
discrimination.
A. The Utility of Social Science “Evidence” When Analyzing a
State’s Offered Compelling Interest
For decades, the Supreme Court routinely rejected social
scientists’ rationales for separating, classifying, and discriminating against individuals on the basis of race. Grutter reversed
that trend by relying heavily upon social science studies in
substantiating its compelling interest finding.90 The Court was
wrong to do so. Justice O’Connor, who wrote the majority opinion
in Grutter, recognized this flaw thirteen years earlier in Metro
Broadcasting, Inc. v. FCC.91 She wrote that “[s]ocial scientists
may debate how peoples’ thoughts and behavior reflect their
background, but the Constitution provides that the Government
may not allocate benefits and burdens among individuals based
on the assumption that race or ethnicity determines how they act
or think.”92
Attempting to buttress discriminatory policies with social
science evidence has a sordid history with the Court. “[W]hen
racial segregation was challenged in the 1940s and 1950s, the
improved-education argument was made by social science experts
on behalf of the proponents of segregation.”93 In Davis v. County
89. See infra Part IV (discussing the Court’s failure to consider the costs of
the discriminatory policy).
90. Grutter, 539 U.S. at 330–33.
91. 497 U.S. 547 (1990).
92. Id. at 602 (O’Connor, J., dissenting).
93. Roger Clegg, Attacking “Diversity”: A Review of Peter Wood’s Diversity:
The Invention of a Concept, 31 J.C. & U.L. 417, 428 (2005) [hereinafter
Attacking Diversity].
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School Board,94 which was a companion case to Brown v. Board
of Education of Topeka,95 the Commonwealth of Virginia
presented scores of testimony and social science research to
demonstrate that “segregated education at the high school level
is best for the individual students of both races.”96 Texas
similarly defended segregation in Sweatt v. Painter97 by citing
studies by the U.S. government and the President of Harvard to
argue that “there is ample evidence . . . to support the reasonableness of the furnishing of equal facilities to white and Negro
students in separate schools.”98
These “studies” were conducted by the leading social
scientists of their day, and given the demonstrated flexibility of
the discipline, the Court has viewed subsequent studies with
skepticism. “There are few government functions that cannot be
described as rooted in some interest that seems ‘compelling,’ and
it will always be possible to find some social scientist who
supports the notion that the consideration of race will improve
that function.”99 In Wygant, the Court was inundated with
amicus briefs extolling the benefits of the “role model theory.”100
The same is true with Croson, where amicus briefs recited the
necessity of racial preferences towards ending societal
discrimination in public contracting.101 Despite social science
94. 103 F. Supp. 337 (E.D. Va. 1952).
95. 347 U.S. 483 (1954).
96. Attacking Diversity, supra note 93, at 428 (quoting Brief for Appellees
at 29, Davis v. Cnty. Sch. Bd. Of Prince Edward Cnty., 347 U.S. 483 (1954) (No.
3) (internal quotation marks omitted)).
97. 339 U.S. 629 (1950).
98. Attacking Diversity, supra note 93, at 429 (quoting Brief for
Respondent at 96, Sweatt v. Painter, 339 U.S. 629 (1950) (No. 44) (internal
quotation marks omitted)).
99. Roger Clegg, Race-Based Review, NAT’L REV. ONLINE (Nov. 28, 2006,
7:55AM), http://www.nationalreview.com/articles/219343/race-based-review/
roger-clegg#.
100. See, e.g., Brief for the Nat’l Educ. Ass’n et al. as Amici Curiae in
Support of Respondents, Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986)
(No. 84-1340); Brief for Nat’l Bd., YWCA of the USA et al. as Amici Curiae
Supporting Respondents, Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986)
(No. 84-1340).
101. See, e.g., Brief for Md. Legislative Black Caucus as Amicus Curiae in
Support of Appellant, City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
(No. 87-998); Brief for Minority Bus. Enter. Legal Def. & Educ. Fund, Inc. & the
156
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evidence purporting to demonstrate the utility of these racebased classifications, the Supreme Court had consistently and
properly rejected the idea that a compelling government interest
could be manufactured through social science evidence.
The diversity interest adopted by the Grutter Court was
created out of similar social science-backed whole cloth. Almost
all of the studies that were relied upon by the University of
Michigan suffer from egregious errors. As just one example, two
studies relied upon by Michigan in substantiating its compelling
interest finding suffered from “design measurement, sampling,
and statistical flaws.”102 Not only were the statistics “inconsistent
and trivially weak,”103 but the “national database on which [the
author] had to rely actually disconfirms the claim that she was
asked by the University to defend.”104
Other studies relied upon by the Grutter Court touted
diversity’s beneficial role in the military and corporate
America.105 These claims suffer from even greater errors—they
bear little to no correlation to the Law School’s purported interest
in “educational benefits.”106 There is certainly “no reason to defer
to a school’s assessment of non-pedagogical benefits of
diversity.”107 With respect to the military, “[m]inority
representation . . . is not an educational benefit.”108 Similarly,
“endorsement of racial affirmative action by corporate America
La. Ass’n of Minority & Women Owned Businesses, Inc. as Amici Curiae in
Support of Appellant, City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
(No. 87-998).
102. ROBERT LERNER & ALTHEA K. NAGAI, A CRITIQUE OF THE EXPERT REPORT
OF PATRICIA GURIN IN GRATZ V. BOLLINGER, CTR. FOR EQUAL OPPORTUNITY 1
(2001), available at http://50.116.98.17/~ceousa/attachments/article/534/
Gurin%20Critique.pdf.
103. Id.
104. THOMAS E. WOOD & MALCOLM J. SHERMAN, RACE AND HIGHER
EDUCATION: WHY JUSTICE POWELL’S DIVERSITY RATIONALE FOR RACIAL
PREFERENCES MUST BE REJECTED, NAT’L ASS’N OF SCHOLARS 79, available at
http://www.nas.org/images/documents/report_race_and_higher_education.pdf
(last visited July 31, 2012).
105. See Grutter v. Bollinger, 539 U.S. 306, 330–33 (2003).
106. Id. at 328 (emphasis added).
107. Thompson & Schiff, supra note 19, at 454 n.91.
108. Brian N. Lizotte, The Diversity Rationale: Unprovable, Uncompelling,
11 MICH. J. RACE & L. 625, 644 (2006).
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should carry little or no weight.”109 There is a logical disconnect
between racial preferences designed to create “diversity” in the
educational setting and the impact of diversity in the workforce.
“Nothing that happens to minorities after graduation will
directly help the learning experience of any student still in
school.”110
The social science studies touting the educational benefits of
diversity were weak at the time of that decision; in the almost
ten years since Grutter was decided, new studies have undercut
the claim even further.111 At best, some researchers have found
that diversity sometimes produces educational benefits.112 As one
scholar put it, “[a]ll this simply confirms the fundamental
problem with Grutter, namely that the social-science evidence in
this area is uncertain and the purported benefits of racial
[diversity] only marginal.”113 That is a far cry from Justice
O’Connor’s claim that the benefits of diverse student body are
“real,” “substantial,” and “not theoretical.”114
The fallout from the Grutter decision exemplifies why the
Supreme Court has always viewed compelling interest rationales
skeptically when supported by nothing more than social sciencebacked research. The only other interest found to be compelling—
remedying decades of intentional state sponsored discrimination
and segregation—is provable by historical fact. Conversely, the
Grutter Court’s compelling interest must necessarily change with
the onset of new studies and research.115 The “educational
109. Larry Alexander & Maimon Schwarzschild, Grutter or Otherwise:
Racial Preferences and Higher Education, 21 CONST. COMMENT. 3, 4 n.9 (2004).
110. Thompson & Schiff, supra note 19, at 454 n.91.
111. See, e.g., Roger Clegg, The Educational Benefits of ‘Diversity’, NAT’L
REVIEW ONLINE (Feb. 1, 2010, 2:21PM), http://www.nationalreview.com/phibeta-cons/39876/educational-benefits-diversity [hereinafter Benefits of Diversity]
(describing new studies confirming that the evidence touting diversity is
“marginal” and “uncertain”); John Rosenberg, “Diversity” Research Advances
Progresses
Accumulates,
DISCRIMINATIONS
(Feb.
6,
2010),
http://www.discriminations.us/2010/02/“diversity”-research-advancesprogresses-accumulates/.
112. Peter Schmidt, New Research Complicates Discussions of Campus
Diversity—in a Good Way, THE CHRON. HIGHER EDUC., Jan. 31, 2010, available
at http://chronicle.com/article/New-Research-Complicates/63787/.
113. Benefits of Diversity, supra note 111.
114. Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
115. Indeed, Justice O’Connor recognizes that the interest she found
158
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Race-Based Admissions
benefits that flow from a diverse student body” is too amorphous
and disputable of a compelling interest to permit state-sponsored
discrimination against individuals on the basis of their skin
color.116
B.
The Benefits That Flow from a Diverse Student Body Can
Be Accomplished Without Racial Discrimination
Grutter held that the benefits flowing from a diverse student
body comprised a compelling interest sufficient to justify the Law
School’s racially discriminatory admissions program.117 As
discussed, this means that the Court found that the benefits in a
racially diverse student body of paramount government
importance, and the costs negligible or easily outweighed by the
immense benefits. As we will see, however, the costs inherent in
racially discriminatory policies are great. If a different, easily
enacted policy were possible—one that did not impose any of
these undeniable costs on individuals, but produced the same
benefits—then the interest can no longer be considered
“compelling.”
It is important to note that this logically flows from the costbenefit compelling interest inquiry required by the Court. While
this inquiry is similar to a “narrow tailoring” inquiry, it is
distinct. A narrow tailoring inquiry accepts the compelling
interest as given and then analyzes whether the means chosen to
achieve the interest “work the least harm possible.”118 Here,
conversely, the question is whether other easily available means
affect the purported costs and benefits of the discriminatory state
action.119
compelling in Grutter would need to be supported by further research to remain
compelling. “When the time comes to reassess the constitutionality of
considering race in higher-education admissions . . . we will need social
scientists to clearly demonstrate the educational benefits of diverse student
bodies.” Peter Schmidt, Sandra Day O’Connor Revisits and Revives AffirmativeAction Controversy, THE CHRON. OF HIGHER EDUC., Jan. 14, 2010, available at
http://chronicle.com/article/Sandra-Day-OConnor-Revisits/63523/.
116. Grutter, 539 U.S. at 330.
117. Id. at 328.
118. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 308 (1970)
119. Although this article focuses on the compelling interest analysis, the
issues and data, discussed infra Part III.B.1, also suggest that the narrow
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The Grutter Court swallowed this distinction when it
deferred to the Law School’s purported interest in racial
diversity.120 The Court ended up with a meaningless tautology,121
and the Law School’s interest in racial diversity could be achieved by admitting racially diverse students. Thus, the Court’s
compelling interest inquiry necessarily assumed that a diverse
student body which produces educational benefits can only be
formed by using race.122
As demonstrated below, that is simply not the case. Public
universities—including some of the most selective in the
country—have been forbidden by their state constitutions from
considering race in admissions.123 In the two states analyzed
below, California and Michigan, universities have been able to
achieve racially diverse student bodies without resorting to
racially discriminatory policies, thereby significantly undercutting the Grutter Court’s conclusion that the Law School’s
purported interest was “compelling.”
tailoring prong is not, and cannot, be met.
120. Grutter, 539 U.S. at 324, 329; see also Thompson & Schiff, supra note
19, at 452 n. 86, 478–82 (noting other problems with the Court’s deference
model of strict scrutiny).
121. See generally Grutter, 539 U.S. at 329. Racial diversity was compelling
because the Law School said racial diversity was compelling.
122. See Id. at 327–33. Compare id. at 329 (“As part of its goal of
‘assembling a class that is both exceptionally academically qualified and
broadly diverse,’ the Law School seeks to ‘enroll a “critical mass” of minority
students.”), with id. at 333 (“The Law School has determined, based on its
experience and expertise, that a ‘critical mass’ of underrepresented minorities is
necessary to further its compelling interest in securing the educational benefits
of a diverse student body.”).
123. The Grutter Court placed great weight on the fact that the University
of Michigan Law School was “highly selective.” Grutter, 539 U.S. at 332. Of
course, that Law School is now subject to Proposal 2, discussed below. UCBerkeley and UCLA, both highly selective schools, are subject to Proposition
209. CAL. CONST. art. I, § 31(f). Both state constitutional amendments in
Michigan and California prohibit the universities—even the highly selective
ones—from considering race in admissions. MICH. CONST. art. I, § 26(1); CAL.
CONST. art. I, § 31(f).
160
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1. Minority Educational Opportunities, Achievements, and
Enrollments Have Increased Since the Passage of Proposition
209
In 1996, California passed Proposition 209, banning its public
universities from considering race in admissions decisions.124
Recognizing California’s race-neutral admission policy, the
Grutter Court recommended that “[u]niversities in other States
can and should draw on the most promising aspects of these raceneutral alternatives as they develop.”125 The results are in: Raceneutral methods result in highly diverse student bodies at
California universities.126 Since California’s ban on racial discrimination in admissions, its universities continue to thrive and
racial diversity and minority achievement continue to increase on
public university campuses.
The University of California (UC) system consists of nine
undergraduate campuses.127 The UC tracked the offers for
admission by race and/or ethnicity from 1997 through 2012. 128
This data shows:
x University-wide, underrepresented minorities (defined as
American Indian, African American, and Chicano/Latino
students) constituted 19.6% of the students (7,385 total)
124. CAL. CONST. art. I, § 31.
125. 539 U.S. at 342.
126. UNIVERSITY OF CALIFORNIA: NEW CAL. FRESHMAN ADMITS OFFERS BY
RACE/ETHNICITY: FALL 1997-2008 (2008) available at http://www.ucop.edu/
news/factsheets/2008/fall_2008_admissions_table_4.pdf [hereinafter UC 2008
Admissions].
127. The new Merced campus and campuses dedicated solely to graduate
level courses are not included in the data set forth in this article, except as
noted.
128. Note that while Proposition 209 was passed in 1996, an injunction
delayed its effective date until August of 1997. Eva Paterson & Oren Sellstrom,
Equal Opportunity in a Post-Proposition 209 World, 26 HUM. RTS. 9, 9 (1999).
The UC initially stopped considering race in its undergraduate admissions
decisions pursuant to Regents Resolution SP-1, effective January 1, 1995. A
Brief History of Affirmative Action, UNIVERSITY OF CALIFORNIA IRVINE: OFFICE
OF EQUAL OPPORTUNITY & DIVERSITY, http://www.eod.uci.edu/aa.html (last
updated May 3, 2010). Although this article focuses on the years’ postProposition 209, the UC system has been tracking admissions data since at
least 1989. Student/Workforce Data, UNIVERSITY OF CALIFORNIA: OFFICE OF THE
PRESIDENT, http://www.ucop.edu/news/studstaff.html (last updated Aug. 9,
2012).
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to whom admission was offered as freshmen in 1997.129 By
2010, underrepresented minorities received 28.3% of the
freshmen offers of admission (16,635 total), an increase of
9,250 offers of admission to underrepresented minority
students.130 Meanwhile, offers of admission to white
students declined from 42.6% in 1997 to 32.0% in 2010.131
x The percentage of offers of freshmen admission that were
extended to underrepresented minorities was higher or
the same in 2010 than 1997 on six of the eight UC
campuses that had data for 1997 through 2010.132
Preliminary data for 2011 shows the same result for seven
of the eight campuses,133 and preliminary data for 2012
shows this is true for all eight campuses.134
x Actual enrollments also increased. By all measures,
including relative to state population share and changes
in total UC enrollment, black and Hispanic enrollments
129. UC 2008 Admissions, supra note 126.
130. Compare UC 2008 Admissions, supra note 126, with UNIVERSITY OF
CALIFORNIA: NEW CALIFORNIA FRESHMAN ADMIT OFFERS BY RACE/ETHNICITY
(2010) available at http://www.ucop.edu/news/factsheets/2010/fall_2010_
admissions_table_3.pdf [hereinafter UC 2010 Admissions].
131. UNIVERSITY OF CALIFORNIA: NEW CALIFORNIA FRESHMAN ADMITS FALL
1997,1998, 1999, AND 2000 (2000) available at http://www.ucop.edu/ucophome/
commserv/preadm_a0400.pdf. Preliminary data for 2011 and 2012 show that
these trends have continued (for 2011, underrepresented minorities received
30.8% of the freshman offers of admission, while offers to white students fell to
30.6% of offers; for 2012, underrepresented minorities received a further
increase to 32.4% of the freshman offers of admission, while offers to white
students fell, again, to 28.2%), but, for reliability, this article focuses on the
finalized 2010 data. UNIVERSITY OF CALIFORNIA: PERCENT CHANGE IN CALIFORNIA
RESIDENT FRESHMAN ADMIT COUNTS BY CAMPUS AND RACE/ETHNICITY: Fall 2009,
2010, 2011 (2010) available at http://www.ucop.edu/news/factsheets/2011/fall_
2011_admissions_table_3.pdf [hereinafter UC 2011 Admissions]; UNIVERSITY OF
CALIFORNIA PERCENT CHANGE IN CALIFORNIA RESIDENT FRESHMAN ADMIT COUNTS
BY CAMPUS AND RACE/ETHNICITY: 2010, 2011, 2012 (2012) available at
http://www.ucop.edu/news/factsheets/2012/fall_2012_admissions_table3.pdf
[hereinafter UC 2012 Admissions].
132. UNIVERSITY OF CALIFORNIA: APPLICATION, ADMISSIONS AND ENROLLMENT
OF CALIFORNIA RESIDENT FRESHMAN FOR FALL 1989 THROUGH 2011 (2011), http://
ucop.edu/news/factsheets/flowfrc_10.pdf [hereinafter 1989–2011 Admissions].
133. Id.
134. UC 2012 Admissions, supra note 131 (comparing 2010, 2011, and 2012
admission data).
162
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UC-wide are higher than before Proposition 209.135 Black
enrollment averaged some 40% higher than preProposition 209 levels by 2007–2010.136 And by 2008,
Hispanic enrollment UC-wide was double its preProposition 209 levels.137
Data also shows that minority academic performance and
graduation rates rose after Proposition 209 took effect:
x From 1992–1994 to 1998–2005, black four-year graduation
rates UC-wide improved by more than half and black sixyear graduation rate improved by a fifth. Hispanic
graduation rates improved similarly.138
x Black and Hispanic GPAs also increased post-Proposition
209, even though more minority students were sticking
with less-generously-graded science and engineering
studies.139
Grutter cited many benefits supposed to flow from diversity
including that “student body diversity promotes learning
outcomes” and that it “better prepares students for an
increasingly diverse workforce and society.”140 Since 1997,
minorities continue to seek and be offered admission to the UC in
greater numbers, are achieving ever greater learning outcomes,
and are entering ever more diverse fields in greater numbers; all
without the UC system resorting to racial preferences. The data
thus shows that California and its higher education students
enjoy the educational benefits that flow from a diverse student
body without resorting to racial discrimination to obtain that
diverse student body.
135.
136.
137.
138.
1989–2010 Admissions, supra note 132.
Id.
Id.
Richard H. Sander, An Analysis of the Effects of Proposition 209 Upon
the University of California 4, 6 (working paper) (on file with the author),
available at http://www.seaphe.org/pdf/analysisoftheeffectsofproposition209.pdf.
139. See id. at 2.
140. Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (quoting Brief for Am.
Educ. Research Ass’n et al. as Amici Curiae Supporting Respondents at 3,
Grutter v. Bollinger, 539 U.S. 306 (No. 02-241)).
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Minority Enrollment Throughout Michigan Has Increased
Since the Passage of Proposal 2
On December 23, 2006, the Michigan Civil Rights Initiative,
Proposal 2, became law.141 Similar to California’s Proposition
209,142 Michigan’s Proposal 2 banned all forms of race or sex
discrimination or preferential treatment in public school
admissions.143 Also like California’s experience, Michigan has
been able to attain the benefits of diverse student bodies, without
assuming any of the costs attendant to racially discriminatory
policies.
Despite the absence of racial preferences in admissions for a
significant portion of the 2007 admissions cycle, public
universities in Michigan reported an overall increase in minority
enrollment for 2007.144 Total minority enrollment in Michigan
public universities jumped by 3,061, which constituted a 2.3%
increase over minority enrollment in 2006.145 Black enrollment
made up the bulk of this jump, accounting for over half (1,779) of
the increase, but no minority showed a decrease in either raw
enrollment numbers or percentage of enrollment.146 These trends
continued during the 2008, 2009, and 2010 admission cycles.147
141.
142.
143.
144.
MICH. CONST. art. I, § 26.
See CAL. CONST. art. I, § 31(a).
MICH. CONST. art. I, § 26.
See THE NAT’L CTR. FOR EDUC. STATISTICS, FALL ENROLLMENT IN
DEGREE-GRANTING INSTITUTIONS, BY RACE/ETHNICITY OF STUDENT AND BY STATE
OR JURISDICTION: 2007, Table 228 (2008), available at http://nces.ed.gov/
programs/digest/d08/tables/dt08_228.asp [hereinafter 2007 Statistics]; THE
NAT’L CTR. FOR EDUC. STATISTICS, FALL ENROLLMENT IN DEGREE-GRANTING
INSTITUTIONS, BY RACE/ETHNICITY OF STUDENT AND BY STATE OR JURISDICTION:
2006, Table 229 (2008), available at http://nces.ed.gov/programs/
digest/d08/tables/dt08_229.asp [hereinafter 2006 Statistics].
145. Compare 2007 Statistics, supra note 144; with 2006 Statistics, supra
note 144.
146. 2007 Statistics, supra note 144; 2006 Statistics, supra note 144.
147. See THE NAT’L CTR. FOR EDUC. STATISTICS, FALL ENROLLMENT IN
DEGREE-GRANTING INSTITUTIONS, BY RACE/ETHNICITY OF STUDENT AND BY STATE
OR JURISDICTION: 2008, Table 228 (2009), available at http://nces.ed.gov/
programs/digest/d09/tables/dt09_228.asp [hereinafter 2008 Statistics]; THE
NAT’L CTR. FOR EDUC. STATISTICS, FALL ENROLLMENT IN DEGREE-GRANTING
INSTITUTIONS, BY RACE/ETHNICITY OF STUDENT AND BY STATE OR JURISDICTION:
2009, Table 237 (2010), available at http://nces.ed.gov/programs/
digest/d10/tables/dt10_237.asp [hereinafter 2009 Statistics]; THE NAT’L CTR. FOR
164
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By the 2010 admission cycle, four years after Proposal 2 took
effect, total minority enrollment in Michigan public universities
had increased every year and was 31,648 students higher than it
was in 2006.148 This constituted a 2.6% increase in the percent of
total minority student enrollments (from 20.7% to 23.3%).149
Black and Hispanic enrollment made up the bulk of the increase,
but all minorities saw an increase in both raw enrollment
numbers and percentage of enrollment—except for American
Indians whose numbers remained relatively constant through
the years.150
Naturally, not every public higher education institution in
Michigan saw identical changes in enrollment. While the
University of Michigan, Ann Arbor has seen black enrollment
fluctuate above and below 2006 levels since the adoption of
Proposal 2 (it is currently up), Asian enrollment has more
consistently increased.151 Conversely, at Central Michigan
University, black new freshman enrollment has consistently
increased, while Asian enrollment has fluctuated above and
below 2006 levels (it is currently above).152 At Western Michigan
University, black enrollment in 2010 is up 121% and Hispanic
enrollment is up 56.5% since 2006,153 while at Eastern Michigan
EDUC. STATISTICS, FALL ENROLLMENT IN DEGREE-GRANTING INSTITUTIONS, BY
RACE/ETHNICITY OF STUDENT AND BY STATE OR JURISDICTION: 2010, Table 239
(2011), available at http://nces.ed.gov/programs/digest/d11/tables/dt11_239.asp
[hereinafter 2010 Statistics].
148. Compare 2006 Statistics, supra note 144, with 2010 Statistics, supra
note 147.
149. Compare 2006 Statistics, supra note 144, with 2010 Statistics, supra
note 147.
150. Compare 2006 Statistics, supra note 144, with 2010 Statistics, supra
note 147.
151. UNIVERSITY OF MICHIGAN—ANN ARBOR FRESHMAN CLASS PROFILE
(2011), available at http://sitemaker.umich.edu/obpinfo/files/umaa_
freshprofmaxfa11.pdf.
152. CENTRAL MICHIGAN UNIVERSITY: ON-CAMPUS ENROLLMENT PROFILES AND
PROJECTIONS FALL 2011 (2011), available at https://iframes.cmich.edu/
Documents/OIR/enrollment/enrollment_profile_projection_2011.pdf.
153. Compare WESTERN MICHIGAN UNIVERSITY: FRESHMAN CLASS PROFILE
FALL 2006, Table 19 (2006), available at http://www.wmich.edu/ir/factbook/
2006/student/fclass.pdf, with WESTERN MICHIGAN UNIVERSITY: FRESHMAN CLASS
PROFILE FALL 2010, Table 19 (2010), http://www.wmich.edu/ir/factbook/2010/
student/fclass.pdf .
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University, first-time freshmen black enrollment is up 10.7% and
Hispanic enrollment is up 18.8%.154
Together, this data shows that diverse student bodies can be
achieved without resorting to racial discrimination. Although the
data available for Michigan public universities since the passage
of Proposal 2 is new—and therefore future patterns are
somewhat unpredictable—it can certainly be said that, as in
California, the “sky is not falling.”155 Minority enrollment has increased throughout Michigan, and while some Michigan
universities show a decrease in enrollment for a particular race,
other similarly situated universities show enrollment increases
for that same race.
The data shows that minorities do not need preferences to
matriculate into and succeed in Michigan’s public university
system. Michigan, like California, has thus been able to reap the
educational benefits that flow from a diverse student body while
forbidding racial discrimination. Accordingly, using racially discriminatory policies to achieve a racially diverse student body is
not likely to produce benefits that are of paramount governmental importance. At the very least, unlike California and
Michigan, using racially discriminatory policies will only
exacerbate the costs of discriminatory admissions policies,
significantly undercutting the Grutter Court’s compelling interest
finding. Those costs are the subject of the next section.
154. Compare Eastern MICHIGAN UNIVERSITY COMPARE QUICK FACTS FALL—
2006 OFFICIAL RECORD (2007), available at http://irim.emich.edu/quick_facts.
php?term=OFFICIAL_RECORD%3AFall+2006&submit=submit&pmajr=&mjm
n=&facts=stdNwUR%3ANew+Undergraduates+by+Race%2FEthnicity,
with
EASTERN MICHIGAN UNIVERSITY: QUICK FACTS— FALL 2011 (2012), available at
http://irim.emich.edu/quick_facts.php?term=OFFICIAL_RECORD%3AFall+201
1&submit=submit&pmajr=&mjmn=&facts=stdNwUR%3ANew+Undergraduate
s+by+Race%2FEthnicity.
155. See generally Eryn Hadley, Note, Did the Sky Really Fall? Ten Years
after California’s Proposition 209, 20 BYU J. PUB. L. 103 (2005) (discussing the
effects of California’s Proposition 209).
166
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IV. THE COSTS ATTENDANT TO RACIAL CLASSIFICATIONS
OUTWEIGH THE BENEFITS THAT FLOW FROM A DIVERSE STUDENT
BODY
Part III of this article demonstrated that the Grutter Court’s
finding of a compelling interest in the “benefits that flow from a
diverse student body”156 was significantly flawed because those
purported benefits: (1) were and are dubious, and (2) whatever
benefits are present, could be achieved without racial discrimination. Grutter’s greater error, however, was failing to
complete the proper cost-benefit analysis that the Court requires
when scrutinizing a state’s offered compelling interest. “If the
need for the racial classification[]. . . is unclear, . . . the costs are
undeniable.”157 The Grutter Court failed to address the costs of
the Law School’s discriminatory policy.
Any benefits derived from a race-conscious policy must be
weighed against the inherent, undeniable, and well-known costs
of governmental racial classifications. “The value of anything
must consider its liabilities.”158 If an asserted educational
interest is to be compelling enough to justify race discrimination,
“it is also logical to require that the purported educational
benefits significantly outweigh the various costs . . . .”159 The
harms caused by government policies that prefer some
individuals over others based on race are well known.
Government racial classifications tear at the very fabric of our
society, dehumanize individuals, and significantly hamper the
very students they are designed to protect. None of these harms
are outweighed by the benefits that flow from a diverse student
body, especially when one considers that the same benefits can be
achieved in a race-neutral and, therefore, less costly way.
156. Grutter v. Bollinger, 539 U.S. 306, 343 (2003).
157. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 745 (2007) (plurality opinion).
158. Attacking Diversity, supra note 93, at 434.
159. Id.
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A. Government Racial Classifications Are Destructive of
Democratic Society
“Racial classifications of any sort pose the risk of lasting
harm to our society.”160 “[T]he equal protection principle,” that
was “[p]urchased at the price of immeasurable human suffering,”
reflects “our Nation’s understanding that such classifications
ultimately have a destructive impact on the individual and our
society.”161 Discrimination based on race is “illegal, immoral,
unconstitutional, inherently wrong, and destructive of democratic
society.”162
Empirical data has increasingly shown how the liabilities
attendant to the use of racial preferences are substantial:
They are personally unfair, and they set a disturbing legal,
political, and moral precedent to allow state racial discrimination; they create resentment; they stigmatize the socalled beneficiaries in the eyes of their classmates, teachers,
and themselves; they foster a victim mindset, remove the
incentive for academic excellence, and encourage separatism;
they compromise the academic mission of the college or university and lower the academic quality of the student body; they
create pressure to discriminate in grading and graduation;
they breed hypocrisy within the school; they encourage a
scofflaw attitude among college and university officials; they
mismatch students and institutions, guaranteeing failure for
many of the former; they obscure the real social problem of why
so many African-Americans and Hispanics are academically
uncompetitive; and they get state actors involved in unsavory
activities like deciding which racial and ethnic minorities will
be favored and which ones not, and how much blood is needed
to establish authentic group membership.163
160. Shaw v. Reno, 509 U.S. 630, 657 (1993).
161. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas,
J., concurring).
162. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521(1989) (Scalia,
J., concurring) (quoting ALEXANDER BICKEL, THE MORALITY OF CONSENT 133
(1975)).
163. Attacking Diversity, supra note 93, at 435–36 (numerous citations
omitted).
168
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These costs are especially high in an increasingly multi-cultural
and multi-ethnic society.164 A state’s “[p]referment by race. . . can
be the most divisive of all policies.”165 Such a policy “contain[s]
within it the potential to destroy confidence in the Constitution
and in the idea of equality”166 and “escalat[es] racial hostility and
conflict.”167 Wherever governments implement policies that
prefer one race over another, the destructive effects to society are
not a matter of speculation or prediction.
[E]ven a broad-brush look at what affirmative action programs
have actually done in various countries reveals that a failure to
achieve their goals may be the least of the problems created by
these programs. Poisonous intergroup relations and real
dangers to the fabric of society have also been produced by
affirmative action . . . .168
The only way to justify the destructive consequences of a
governmental policy of racial preferences is to declare that “any
amount of social redress, however small, is worth any amount of
costs and dangers, however large.”169 This premise is untenable
and has been universally rejected by the Court.
B. Government Racial Classifications Dehumanize Individuals
By dehumanizing individuals, racial classifications impose a
significant cost that must be overcome in order to make such
164. In the past ten years the number of Americans who identify as
belonging to “two or more races” has increased 32.0%. Further, growth in the
number of individuals self-identifying as Hispanic, Asian, American Indian,
black, or Native Hawaiian has far outpaced that of individuals who self-identify
as “white alone.” See 2010 Census Data, UNITED STATES CENSUS 2010,
http://2010.census.gov/2010census/data/ (last visited July 31, 2012). Indeed,
there are now more “minority” than “non-minority” babies born each day in the
United States today. See Carol Morello & Ted Mellnik, Census: Minority Babies
Are Now Majority in United States, WASH. POST (May 17, 2012),
http://www.washingtonpost.com/local/census-minority-babies-are-now-majorityin-united-states/2012/05/16/gIQA1WY8UU_story.html.
165. Grutter v. Bollinger, 539 U.S. 306, 388 (2003) (Kennedy, J., dissenting).
166. Id.
167. Metro Broad., Inc. v. FCC, 497 U.S. 547, 603 (1990) (O’Connor, J.,
dissenting) (citations omitted).
168. THOMAS SOWELL, AFFIRMATIVE ACTION AROUND THE WORLD: AN
EMPIRICAL STUDY 22 (2004).
169. Id. at 198.
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classifications constitutionally permissible. The foundational
American creed is that “all [m]en are created equal.”170 And
although at times this statement has been more hope than
realization, “[w]e are a ‘free people whose institutions are founded upon the doctrine of equality.’”171 Thus, “government may
treat people differently because of their race only for the most
compelling reasons.”172
The Fourteenth Amendment was intended to ensure that all
persons will be treated as individuals, not “as simply components
of a racial. . . class.”173 “Government cannot make us equal; it can
only recognize, respect, and protect us as equal before the law.”174
Moreover, “[r]ace-based assignments ‘embody stereotypes that
treat individuals as the product of their race, evaluating their
thoughts and efforts—their very worth as citizens—according to
a criterion barred to the Government by history and the
Constitution.’”175
Most public universities classify students according to broad
racial categories of “African-American” or “Hispanic” or
“Asian,”176 thereby defining individuals within these groups as
the embodiment of their group identities. But nothing intrinsic in
these categories assures a commonality of experience. For
example, “[t]he term ‘Hispanic’ clearly doesn’t describe common
social background; it doesn’t designate a common language; and
it doesn’t, for that matter, describe gross physical appearance.”177
The same can be said of the term “Asian” which, to name a few
170. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
171. Grutter, 539 U.S. at 326 (quoting Loving v. Virginia, 388 U.S. 1, 11
(1967)).
172. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); see also
Grutter, 539 U.S. at 326 (“Because the Fourteenth Amendment ‘protect[s]
persons, not groups,’ all ‘governmental action based on race—a group
classification long recognized as in most circumstances irrelevant and therefore
prohibited—should be subjected to detailed judicial inquiry to ensure that the
personal right to equal protection of the laws has not been infringed.’” (quoting
Adarand, 515 U.S. at 227)).
173. Miller v. Johnson, 515 U.S. 900, 911 (1995) (citation omitted) (internal
quotation marks omitted).
174. Adarand, 515 U.S. at 240 (Thomas, J., concurring).
175. Miller, 515 U.S. at 912 (quoting Metro Broad., Inc. v. FCC, 497 U.S.
547, 604 (1990) (O’Connor, J., dissenting)).
176. See Fisher I, 645 F. Supp. 2d 587, 593–99 (W.D. Tex. 2009).
177. See PETER WOOD, DIVERSITY: THE INVENTION OF A CONCEPT 25 (2003).
170
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Race-Based Admissions
examples, includes individuals of Japanese, Vietnamese, Indian,
or Chinese descent.
A compelling interest rooted in diversity perpetuates groupbased stereotypes, weakening one of the greatest achievements of
the Civil Rights Movement—laying bare the perniciousness of
stereotyping.178 This group-right diversity concept contravenes
the very premise of the Constitution:
Diversity raised to the level of counterconstitutional principle
promises to free people from the pseudo-liberty of individualism and to restore to them the primacy of their group
identities. . . . Real equality according to [diversity proponents],
consists of parity among groups, and to achieve it, social goods
must be measured out in ethnic quotas, purveyed by group
preferences, or otherwise filtered according to the will of social
factions.179
“Once we allocate political rights by group identity, the
assignment of group identity becomes the crucial determinant of
everything else for the individual.”180 Such a result cannot be
countenanced under the United States Constitution, designed to
thwart precisely the dangers now promoted as goals. Racial
preferences stigmatize recipient groups by implying that the
recipients are inferior and need special protection, thus
generating the “politics of racial hostility.”181 “Because that
perception . . . can only exacerbate rather than reduce racial
prejudice, it will delay the time when race will become . . . truly
irrelevant.”182
Governmental racial classifications dehumanize individuals,
imposing clear and substantial costs. The pernicious stereotyping
and politics of racial hostility created thereby simply prolongs the
day when race is irrelevant and our children “will not be judged
by the color of their skin but by the content of their character.”183
178.
179.
180.
181.
182.
Id. at 43.
Id. at 14.
Id. at 43.
Id. at 173–74.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229 (1995) (Stevens,
J., dissenting) (quoting Fullilove v. Klutznick, 448 U.S. 448, 545 (1980)
(plurality opinion)).
183. Martin Luther King, Jr., Speech for the March on Washington for Jobs
and Freedom: I Have a Dream (August 28, 1963), available at
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These costs simply outweigh the speculative and unnecessary
benefits achieved by race-based admission policies.
C. Racial Preferences in College Admissions Cause Serious
Harm to the Very Students the Preferences Are Intended to
Benefit
By harming the very students they are designed to help,
racial preferences impose significant costs which outweigh the
benefits derived from the preferences. Studies reveal that racial
preferences in college admissions result in an “academic
mismatch” that leads to lower grades and higher drop-out rates
among minority students.184 Academic mismatch begins when
elite universities lower their academic standards for certain
groups to admit a more racially diverse student population.185
Schools one or two academic tiers below must do likewise, since
the minority students who might have attended those lower
ranking universities, based on their own academic record, are
instead attending the elite colleges.186 The result is a significant
gap in academic credentials between minority and nonminority
students at all levels.187
Scholars identified the academic mismatch phenomenon even
before race-conscious admission policies became entrenched at
leading universities:
If Harvard or Yale, for example, admit minority students with
test scores 100 to 150 points below that normally required for a
non-minority student to get admitted, the total number of
minority students able to obtain a legal education is not
increased thereby. The minority students given such
preference would meet the normal admission standards at
Illinois, Rutgers or Texas . . . . Thus, each law school, by its
http://www.americanrhetoric.com/speeches/mlkihaveadream.htm.
184. See, e.g., Richard H. Sander, A Systemic Analysis of Affirmative Action
in American Law Schools, 57 STAN. L. REV. 367, 450–53 (2004) (describing
academic mismatch at law schools). See generally Rogers Elliott et al., The Role
of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37
RES. IN HIGHER EDUC. J. 681 (1996) (discussing mismatch at elite colleges and
universities).
185. Sander, supra note 184, at 450–53.
186. Id. at 470.
187. Id. at 450.
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preferential admission, simply takes minority students away
from other schools whose admission standards are further
down the scale . . . . In sum, the policy of preferential admission has a pervasive shifting effect, causing large numbers of
minority students to attend law schools whose normal
admission standards they do not meet, instead of attending
other law schools whose normal standard they do meet.188
Later research confirms this phenomenon.189
Even supporters of racial preferences have had to
acknowledge that students who attend schools where their
academic credentials are substantially below those of their fellow
students will tend to perform poorly. “[C]ollege grades [for
students admitted based on race] present a . . . sobering picture.
The grades earned by black students . . . often reflect their
struggles to succeed academically in highly competitive academic
settings.”190 For example, in 1988, the average grade point
average of black freshmen at the University of Texas was 1.97,
compared to 2.45 for nonminority freshmen, whose average SAT
scores were over 100 points higher.191
These struggles tend to result in shifting majors as black and
Hispanic students find the coursework too difficult or advanced
given their skill level.192 For example, at highly selective
institutions, studies have shown a very high attrition rate from
the sciences for students admitted with large preferences.193 As a
result, despite black entering freshmen having levels of interest
and aspiration in science comparable to—or higher than—whites,
188. Clyde W. Summers, Preferential Admissions: An Unreal Solution to a
Real Problem, 2 U. TOL. L. REV. 377, 384 (1970).
189. See infra notes 190–204 and accompanying text.
190. WILLIAM G. BOWEN & DEREK BOK ET AL., THE SHAPE OF THE RIVER:
LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY
ADMISSIONS 72 (1998).
191. CHARLES J. SYKES, THE HOLLOW MEN: POLITICS AND CORRUPTION IN
HIGHER EDUCATION 47 n.2 (1990).
192. See generally Elliott, supra note 184 (discussing the role of ethnicity in
choice of major); see also STEPHEN COLE & ELINOR BARBER, INCREASING FACULTY
DIVERSITY: THE OCCUPATIONAL CHOICES OF HIGH-ACHIEVING MINORITY
STUDENTS 212 (2003) (“African American students at elite schools are
significantly less likely to persist with an interest in academia than are their
counterparts at the non-elite schools.”).
193. See generally Elliott, supra note 184 (discussing the role of ethnicity in
choice of major).
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they make up only a small portion of those with degrees in
science and engineering.194
Furthermore, the lower a black student’s academic credentials are relative to the average student at his undergraduate
college or university, the lower his grades are likely to be and the
less likely he is to graduate.195
This leads to black students failing or dropping out of school
at much higher rates than white students (19.3% vs. 8.2%).196
The high drop-out rate is associated with poor performance, not
financial hardship.197 In 1987, almost a quarter of black students
at M.I.T. failed to graduate.198 Although the average math SAT
scores of the black students were in the top 10% nationwide, they
were in the bottom 10% at M.I.T.199 A 1988 study showed that
black students at the University of California at Berkeley had a
70% drop-out rate, despite average SAT scores well above the
national average.200 The problem was that the average SAT
scores of nonminority students at Berkeley were several hundred
points higher.201 These effects are replicated in lower tier schools
as well: In 1997, the University of Colorado graduated only 39%
of black students compared to 72% of nonminority students.202
Bar passage rates provide a sobering example of the ultimate
end results of academic mismatch. Minority law school students
who graduate still fail to pass the bar more often than white
194. Id.
195. See Linda Datcher Loury & David Garman, College Selectivity and
Earnings, 13 J. LAB. ECON. 289, 301–03 (1995); Audrey Light & Wayne Strayer,
Determinants of College Completion: School Quality or Student Ability?, 35 J.
HUM. RESOURCES 299, 301 (2000).
196. Sander, supra note 184, at 437, Table 5.5.
197. Id. at 439, Table 5.6.
198. Arthur Hu, Minorities Need More Support, THE TECH, Mar. 17, 1987,
at 4.
199. Id.
200. See John H. Bunzel, Affirmative Action Admissions: How it ‘Works’ at
UC Berkeley, 93 PUB. INT. III, 124–25 (1988).
201. Id.
202. Robert Lerner & Althea K. Nagai, Affirmative Action in Colorado
Higher Education, CTR. FOR EQUAL OPPORTUNITY, http://ceousa.org/
colorado.html (last visited July 31, 2012); see also SHELBY STEELE, THE CONTENT
OF OUR CHARACTER: A NEW VISION OF RACE IN AMERICA 138 (1990) (noting a 72%
African American failure rate at San Jose State University in California).
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students.203 That is, law school students who struggle academically because of mismatch will most likely not achieve subject
matter mastery, and will suffer lower pass rates on the bar, and
increased problems in the job market.204 Thus only 45% of black
law school graduates passed the bar on their first attempt as
compared to over 78% of whites.205 Black students entering law
school are only half as likely as their white peers to ever become
lawyers.206 The poor performance by minority students at
universities and law schools is not the result of a student’s race,
but is “simply a function of disparate entering credentials, which
in turn is primarily a function of the law schools’ use of heavy
racial preferences.”207
Academic mismatch has further hindered the minority
“pipeline” to academia. A 2003 study drawing on questionnaires
and other detailed data from 7,612 graduating seniors at thirtyfour colleges found that large racial preferences prevented
minority hires in academia.208 Students receiving large racial
preferences tended to get significantly lower grades and struggle
academically, which hurt self-confidence, not to mention job
prospects.209
Racial preferences in college admissions impose significant
costs on minority students. No matter where academic mismatch
occurs, lower grades lead to lower levels of academic self-confidence, which in turn increases the likelihood that minority
students will lose interest in continuing their education and drop
out.210 Generations of minority students who would have
succeeded without race-based admission policies are saddled with
203. See Richard H. Sander, A Systemic Analysis of Affirmative Action in
American Law Schools, 57 STAN. L. REV. 367 (2004).
204. Id. at 370.
205. See Richard Sander, Are Black/White Disparities in Graduation and
the Bar Getting Better, or Worse?, EMPIRICAL LEGAL STUDIES (Sept. 19, 2006,
8:28 AM), http://www.elsblog.org/the_empirical_legal_studi/2006/09/sander_
2_black_.html.
206. Id.
207. Sander, supra note 184, at 429.
208. See COLE & BARBER, supra note 192, at 39.
209. Id. at 212.
210. See supra notes 192–202 and accompanying text.
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far greater risks of failure because of academic mismatching.211
Eliminating racial preferences in student admissions would
eradicate academic mismatch and restore confidence and success
to students of all races.
V. STARE DECISIS PRINCIPLES CANNOT SAVE GRUTTER
This article has focused on the compelling interest test and
the reasons that Grutter abandoned the cost-benefit analysis that
is required by that prong of strict scrutiny. It has thus demonstrated that if the Supreme Court, in the upcoming Fisher
case, were to apply true strict scrutiny to the University of
Texas’s asserted interest in a racially diverse student body, then
the Supreme Court would have to strike down the University’s
race-conscious admissions program. The evidence of benefits that
flow from a diverse student body are highly dubious, and regardless, the benefits are achievable without having to incur the
immense costs that accompany race-conscious policies.
But, even if the Court accepts this article’s conclusions—that
Grutter was wrongly decided, there is no compelling interest in
using race to achieve a racially diverse student body, etc.—the
Court could still uphold the University of Texas’s program under
principles of stare decisis. This final section aims to show why
such a decision would be misguided. Grutter is a very poor
candidate to preserve just to abide by stare decisis principles.
A. Grutter Departs from the Constitution’s Text
The Supreme Court’s primary obligation is interpreting the
text of the Constitution.212 Yet, stare decisis is “of fundamental
importance to the rule of law.”213 Where a conflict exists between
prior precedent and the Constitution’s text, justices are bound to
211. Id.
212. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“[A]ll those
who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, . . . . It is emphatically the
province and duty of the judicial department to say what the law is.”).
213. Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (quoting
Welch v. Tex. Dept. of Highways and Pub. Transp., 483 U. S. 468, 494 (1987)).
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uphold the Constitution.214 Although courts should generally be
reluctant to overrule their prior decisions, the principle of stare
decisis is not an inexorable command.215 Stare decisis should give
way when “such adherence involves collision with a prior
doctrine more embracing in its scope, intrinsically sounder, and
verified by experience.”216
The first principle that should guide the Court in ruling on
the Equal Protection Clause challenge in Fisher is the
Constitution’s text. “No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.”217 Because there
are no textual exceptions, and racial distinctions are “odious to a
free people,”218 racial classifications are always subject to strict
scrutiny.219 Grutter departs from the text of the Constitution and
the requirement that all race-based classifications must undergo
the strictest constitutional scrutiny to survive. The guiding
principle of Grutter—“[n]ot every decision influenced by race is
equally objectionable,”220—stands in stark contrast to Rice
(decided three years earlier), which held that “[o]ne of the
principal reasons race is treated as a forbidden classification is
that it demeans the dignity and worth of a person to be judged by
ancestry instead of by his or her own merit and essential
qualities.”221 The Grutter Court erred by creating a compelling
interest only after deferring to the Law School’s “academic
freedom,” thus imbuing the strictness of the scrutiny with
relativity based on contextual factors.222
214. See South Carolina v. Gathers, 490 U.S. 805, 825 (1989) (Scalia, J.,
dissenting) (“I would think it a violation of my oath to adhere to what I consider
a plainly unjustified intrusion upon the democratic process in order that the
Court might save face.”), overruled by Payne v. Tennessee, 501 U.S. 808 (1991);
see also 28 U.S.C. § 453 (2006).
215. See Patterson, 491 U.S. at 172 (stare decisis “[is] not a mechanical
formula of adherence to the latest
decision . . . .”).
216. Helvering v. Hallock, 309 U.S. 106, 119 (1940).
217. U.S. CONST. amend. XIV, § 1, cl. 2.
218. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995).
219. See, e.g., id.; Rice v. Cayetano, 528 U.S. 495, 517 (2000); Parents
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 745–46 (2007)
(plurality opinion).
220. 539 U.S. 306, 327 (2003).
221. Rice, 528 U.S. at 517.
222. Grutter, 539 U.S. at 324; see also Paul Brest, Some Comments on
Grutter v. Bollinger, 51 DRAKE L. REV. 683, 690–91 (2003).
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Grutter’s unprecedented deference to the Law School was,
and remains, a sharp departure from the text of the Constitution,
which admits of no deferential exception to the requirement of
equal treatment.223 Deferring to the University’s interest in
diversity undercuts strict scrutiny because the University’s
interest “is too theoretical and abstract. It cannot be proved or
disproved.”224 Moreover, First Amendment free speech considerations of academic freedom have nothing to do with racial
classifications, which are not speech and might result in the
violation of someone’s equal protection rights.225
The Court’s deference contradicts decades of equal protection
law that requires the state actor to prove the existence of a
compelling interest. For example, when a state actor asserts that
it has a compelling interest in remedying the effects of past
intentional discrimination—the only other compelling interest
recognized by the Court—the Supreme Court requires the state
actor to prove the existence of the past intentional discrimination
it is attempting to remedy through its race-conscious policy.226
Because race-based classifications must always be subject to
nondeferential strict scrutiny, the Supreme Court, well before
Grutter, overturned decisions that mistakenly applied less
demanding review.227 The text of the Constitution requires that
223. See Grutter, 539 U.S. at 350 (Thomas, J., concurring in part, dissenting
in part) (“[T]he Constitution [does not] countenance the unprecedented
deference the Court gives to the Law School, an approach inconsistent with the
very concept of ‘strict scrutiny.’”); id. at 394 (Kennedy, J., dissenting)
(“Deference is antithetical to strict scrutiny, not consistent with it.”).
224. Fisher II, 631 F.3d 213, 255 (5th Cir. 2011) (Garza, J., concurring
specially).
225. Lackland H. Bloom, Jr., Grutter and Gratz: A Critical Analysis, 41
HOUS. L. REV. 459, 469, 479 (2004).
226. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499–500,
505–09 (1989) (holding that the government must show “identified
discrimination” with specificity); Regents of the Univ. of Cal. v. Bakke, 438 U.S.
265, 307 (1978) (“judicial, legislative, or administrative findings of
constitutional or statutory violations” must be made); Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 276 (1986) (warning that “[i]n the absence of particularized
findings, a court could uphold remedies that are ageless in their reach into the
past, and timeless in their ability to affect the future.”).
227. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 233–35 (1995),
overruling Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) (“Metro Broadcasting
itself departed from our prior cases—and did so quite recently. By refusing to
follow Metro Broadcasting, then, we do not depart from the fabric of the law; we
178
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the deferential review standard administered in Grutter be
abandoned.
B. Grutter Fails the Patterson Factors
In Patterson v. McLean Credit Union,228 another case
involving stare decisis in the context of race-based classifications,
the Court identified three factors as particularly relevant to the
stare decisis analysis: (1) subsequent developments in the law,
(2) whether the challenged precedent is “a positive detriment to
coherence and consistency in the law,” and (3) whether the
precedent is “inconsistent with the sense of justice.”229 Each of
these factors favors overruling Grutter.
Subsequent developments in the law reveal Grutter’s
aberrant analysis, as the Supreme Court has since applied
nondeferential strict scrutiny and rejected the use of race-based
classifications.230 In Parents Involved, the Court held that a racebased school assignment policy violated the Equal Protection
Clause.231 Indeed, a plurality of the Court recognized the perilous
similarity between race-based classifications in the name of
“diversity” and those that were found unconstitutional for the
rejected goal of “racial balancing.”232
Further, in the wake of Grutter, states around the country
have flatly prohibited the type of racial classifications that
Grutter sanctioned. To date, California, Louisiana, Washington,
Michigan, Arizona, Nebraska, Florida, and New Hampshire all
prohibit racial classifications in university admissions.233 A conrestore it.”).
228. 491 U.S. 164 (1989).
229. Id. at 173–74.
230. See, e.g., Johnson v. California, 543 U.S. 499 (2005); Parents Involved
in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (plurality
opinion).
231. 551 U.S. at 710–11 (plurality opinion).
232. Id. at 732 (“The principle that racial balancing is not permitted is one
of substance, not semantics. Racial balancing is not transformed from ‘patently
unconstitutional’ to a compelling state interest simply by relabeling it ‘racial
diversity.’”).
233. See ARIZ. CONST. art. II, § 36; CAL. CONST. art. I, § 31; NEB. CONST. art.
I, § 30; N.H. REV. STAT. ANN. § 187-A:16-a. (2012); WASH. REV. CODE ANN. §
49.60.400 (2012); Louisiana Associated Gen. Contractors, Inc. v. State, 669 So.
2d 1185, 1202 (La. 1996) (interpreting Louisiana Constitution as banning all
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stitutional ban on racial classifications in university admissions
will be on the Oklahoma ballot this year.234 Of particular importance is the ban on racial classifications in Michigan. A mere
three years after the Supreme Court held that the University of
Michigan could use race in its admissions process in Grutter,
Michigan voters forbade such considerations by amending their
constitution to prohibit governmental race-based classifications.235 Since Grutter was decided, racial classifications are
less tolerated. States around the country have prohibited
precisely what was countenanced in Grutter, and the Supreme
Court has returned to a nondeferential standard of review for
race-based classifications.
The second Patterson factor is whether the challenged
precedent “may be a positive detriment to coherence and consistency in the law.”236 Grutter, which is logically incoherent and
gives courts little to no guidance on how to interpret race-based
admissions policies, fails this factor. In the Fifth Circuit in
Fisher, Judge Garza related how Grutter is logically incoherent:
But it is not clear, to me at least, how using race in the holistic
scoring system approved in Grutter is constitutionally distinct
from the point-based system rejected in Gratz. If two
applicants, one a preferred minority and one nonminority, with
application packets identical in all respects save race would be
assigned the same score under a holistic scoring system, but
one gets a higher score when race is factored in, how is that
different from the mechanical group-based boost prohibited in
Gratz? Although one system quantifies the preference and the
other does not, the result is the same: a determinative benefit
based on race.237
racial classifications); Fla. Exec. Order No. 99-281 (Nov. 9, 1999), available at
http://dms.myflorida.com/media/general_counsel_files/one_florida_executive_ord
er_pdf.
234. S.J. Res. 15, 53d Leg. (Okla. 2011), available at https://www.sos.ok.gov/
documents/questions/759.pdf (last visited July 30, 2012).
235. MICH. CONST. art. I, § 26.
236. 491 U.S. 164, 173 (1989) (citations omitted).
237. Fisher II, 631 F.3d 213, 252 (5th Cir. 2011) (Garza, J., concurring
specially) (footnote omitted).
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The result of this Grutter/Gratz incoherency is that “Grutter
eliminated any chance for courts to critically evaluate whether
race is, in fact, the defining feature of an admissions packet.”238
Grutter also fails to provide any consistency in the law. “[B]y
using metaphors, like ‘critical mass,’ and indefinite terms that
lack conceptual or analytical precision, but rather sound in abject
subjectivity, to dress up constitutional standards, Grutter fails to
provide any predictive value to courts and university administrators tasked with applying these standards consistently.”239
Because Grutter is “unworkable in practice[,]” resulting in
“mischievous consequences to litigants and courts alike,”240 the
case should be overruled.
The last Patterson factor is whether the challenged
precedent, having been “tested by experience,” proves to be
“inconsistent with the sense of justice or with the social welfare”
and, in particular, “with our society’s deep commitment to the
eradication of discrimination based on a person’s race or the color
of his or her skin.”241 Grutter fails any test that turns on “the
sense of justice” or “the eradication of discrimination.” As Ms.
Fisher’s experience exemplifies, and as our Nation’s history
demonstrates, there is no justice in race discrimination; and
Grutter has fostered, not eradicated, racial discrimination in
higher education.242 Public universities, in the remaining states
that permit race-based classifications, are using Grutter as a
framework to classify and burden their students according to
their race.243
238.
239.
240.
241.
Id.
Id. at 258.
Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965).
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (citations
omitted) (internal quotation marks omitted).
242. The extent of racial preferences is generally conceded even by those
who advocate in favor of them. See, e.g., WILLIAM G. BOWEN & DEREK BOK, THE
SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN
COLLEGE AND UNIVERSITY ADMISSIONS 26–27 (1998) (“[A]lmost all academically
selective institutions [share] a commitment to enrolling a diverse student
population—and, as one way of achieving this objective, to paying attention to
race in the admissions process.”); Thomas J. Espenshade & Alexandria Walton
Radford, A New Manhattan Project, INSIDE HIGHER ED. (Nov. 12, 2009), http://
www.insidehighered.com/views/2009/11/12/radford.
243. Numerous empirical studies have been conducted detailing the growing
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Finally, overturning Grutter would not raise the same
reliance concerns that were present in Planned Parenthood v.
Casey.244 “The inquiry into reliance counts the cost of a rule’s
repudiation as it would fall on those who have relied reasonably
on the rule’s continued application.”245 The nature of race-based
preferences simply doesn’t create significant reliance interests.
No government institution is required to institute race-based
preferences, and states are moving to prohibit the continued use
of race-based classifications.246 Even Grutter recognized that “all
race-conscious admissions programs have a termination point.”247
Under the Court’s stare decisis principles, the flawed Grutter
decision should be overruled. The sooner Grutter is explicitly
rooted out of the law, the better the purposes of stare decisis—
stability, coherence, and predictability—will be served.
use of racial and ethnic preferences in the states that permit their use. See,
e.g., ALTHEA K. NAGAI, CTR. FOR EQUAL OPPORTUNITY, RACIAL AND ETHNIC
PREFERENCES IN ADMISSION AT THE UNIVERSITY OF WISCONSIN LAW SCHOOL
(2011), available at http://www.ceousa.org/attachments/article/545/
U.Wisc.law.pdf; ALTHEA K. NAGAI, CTR. FOR EQUAL OPPORTUNITY, RACIAL AND
ETHNIC PREFERENCES IN UNDERGRADUATE ADMISSIONS AT THE UNIVERSITY OF
WISCONSIN-MADISON (2011), available at http://www.ceousa.org/attachments/
article/546/U.Wisc.undergrad.pdf; ALTHEA K. NAGAI, CTR. FOR EQUAL
OPPORTUNITY, RACIAL AND ETHNIC PREFERENCES IN ADMISSION AT THE UNIVERSITY
OF NEBRASKA COLLEGE OF LAW (2008), available at http://www.ceousa.org/
attachments/article/544/NE_LAW.pdf; ALTHEA K. NAGAI, CTR. FOR EQUAL
OPPORTUNITY, RACIAL AND ETHNIC ADMISSION PREFERENCES AT ARIZONA STATE
UNIVERSITY COLLEGE OF LAW (2008), available at http://www.ceousa.org/
attachments/article/541/ASU_LAW.pdf; ALTHEA K. NAGAI, CTR. FOR EQUAL
OPPORTUNITY,
RACIAL AND ETHNIC PREFERENCES IN ADMISSION AT THE
UNIVERSITY OF ARIZONA COLLEGE OF LAW (2008), available at http://www.ceousa
.org/attachments/article/577/AZ_Law.pdf; Russell K. Nieli, How Diversity
Punishes Asians, Poor Whites and Lots of Others, MINDING THE CAMPUS (July
12, 2010), http://www.mindingthecampus.com/originals/2010/07/how_diversity_
punishes_asians.html (showing how Asians and poor white students suffer the
most harm under current racial preference plans).
244. 505 U.S. 833 (1992).
245. Id. at 855.
246. See, e.g., Michelle Sherretta, Note, An Alternative to Affirmative Action:
Attributing Lack of Diversity in Undergraduate Institutions to a Failing
Education System, 65 U. PITT. L. REV. 655 (2004) (examining California,
Florida, and Texas—three states among several that prohibit the consideration
of race in admission procedures).
247. Grutter v. Bollinger, 539 U.S. 306, 342 (2003).
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VI. CONCLUSION
In 2003, the Supreme Court decided Grutter; nine years later,
on October 10, 2012, Fisher will be heard by the Supreme
Court.248 Too many public universities across America assume
that Grutter always permits the use of race. They read Grutter
not as a narrowly tailored exception to the general prohibition of
racially-motivated decision making but as a blueprint for
creating a student body with their preferred racial composition.
Fisher presents the Supreme Court with an opportunity to reign
in an overexpansive reading of Grutter. While such a decision
would rightly be considered a victory by proponents of equality
under the law, it would not win the war. If Grutter has
demonstrated anything, it’s that if you give universities an inch,
they will take a yard.
The Supreme Court should use Fisher to right the
constitutional wrong it committed in Grutter. Grutter was wrong
when it was decided, and it remains wrong today. The evidence of
benefits flowing from a diverse student body is marginal,
misleading, dubious, and (all too often) outright false. Further,
whatever benefits are secured by a diverse student body can be
achieved without resorting to racial discrimination and preferences. The experiences of Michigan and California, both
operating under race-neutral state constitutions, have shown as
much.249
Grutter wholly abdicated strict scrutiny review by forgetting
to consider the inherent and undeniable costs of racial
preferences. Assuming, arguendo, that the speculative benefits of
a diverse student body are substantial, they certainly do not
outweigh the immense costs of racial discrimination. Racial classifications tear at the very fabric of our society, dehumanize and
stereotype individuals, place group rights over individual rights,
and significantly hamper the very students they are designed to
protect. The costs of such a policy are too great to be countenanced by our Constitution, which guarantees all individuals
equal protection of the laws.
248. 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (Feb. 21,
2012) (No. 11-345).
249. See supra Part III.B.1–2.
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Stare decisis cannot save Grutter. The case departs from the
Constitution’s text.250 Enough time has passed since this convoluted decision was handed down to see that it is a detriment to
coherence and consistency in equal protection jurisprudence. The
case is wholly inconsistent with justice; instead of eradicating
race discrimination in higher education, it has fostered it. It is
time for the Supreme Court to come back from the equal protection wilderness and terminate the race-conscious admissions
programs it agreed to temporarily allow.
250. See supra Part V.A.
184