Dec. 2009 - Connecticut Law Review

Transcription

CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
CONTENTS
ARTICLES
IDENTIFYING GOVERNMENT SPEECH..................................... Andy G. Olree
365
HOW TO ANALYZE THE ACCURACY OF
EYEWITNESS TESTIMONY IN A CRIMINAL
CASE ................... Richard A. Wise, Clifford S. Fishman & Martin A. Safer
435
PRETEND “GUN-FREE” SCHOOL ZONES:
A DEADLY LEGAL FICTION ................................................ David B. Kopel
515
ESSAY
DEMOSPRUDENCE, INTERACTIVE FEDERALISM,
AND TWENTY YEARS OF SHEFF V. O’NEILL ........................... Justin R. Long
585
NOTES
GOOD FAITH REJECTION OF GOODS
IN A FALLING MARKET .................................................. Jeffrey
M. Dressler
611
CRISIS COMPOUNDED BY CONSTRAINT:
HOW REGULATORY INADEQUACIES IMPAIRED
THE FED’S BAILOUT OF BEAR STEARNS ........................... Bryan J. Orticelli
647
THE ROLE OF PARENTS INVOLVED
IN THE COLLEGE ADMISSIONS PROCESS ...................... Michael P. Pohorylo
693
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Copyright © 2009 by the Connecticut Law Review, all rights reserved.
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
Editor-in-Chief
DREW K. BARBER
Managing Editor
COURTNEY C. SCALA
Assistant Managing Editor
JOSEPH W. MORALES
Membership Manager
Executive Editors
Notes and Comments Editors
Articles Editors
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AILLA WASSTROM-WELZ
STEPHEN HEUSSLER
CHRISTOPHER M. HODGE
BRYAN J. ORTICELLI
RENÉE VANDEN WALL BAKE
JILLIAN R. CALACETO
JEFFREY P. GRIFFIN
ERIC B. MILLER
NATHAN MURPHY
JEANNE M. HAYES
BRENDAN J. KEEFE
MICHAEL P. POHORYLO
A. JACOB WERRETT
GABRIEL J. VIDONI
Commentary Editor
EMILEE MOONEY SCOTT
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PATRICK M. MURPHY
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TAYLOR A. DENIS
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Associate Editors
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ERICA M. CARROLL
MICHAEL COSTELLO
JEFFREY M. DRESSLER
DAVID GRECO
NUMBER 2
CHRISTOPHER A. HOUCK
DANIELLE K. IVES
YESHAKE YILMA
JULIA C. ZAJAC
Associate Members
FLYNN BOONSTRA
MARGARET BUDNIK
KAITLIN CANTY
AMANDA M. CAPRARI
CRISTINA COPERSINO
JENNIFER F. DALENTA
ROBERT DEARINGTON
SARAH DRONEY
JOHN J. DUGUAY
DANIEL E. GOREN
GRAYSON COLT HOLMES
BOLAM KIM
MELISSA KNAPP
MEGHANN E. LAFOUNTAIN
JAMES M. LEVA
YAMUNA MENON
KRISTOPHER I. MOORE
PATRICK G.H. MOTT
MATTHEW P. NETTLETON
CAROLINE B. PARK
NICOLAS F. PERRY
ELISABETH A. PIMENTEL
BJ PIVONKA
GREIL ROBERTS
ASHLEY J. SCHAEFER
ROBYN R. SCHWARTZ
CHRISTOPHER R. SHEA
KAITLIN D. SHEA
JOHN O. SHEEHY
JENNIFER L. SNOW
JESSICA H. STEIN
ANGELICA WILSON
JONATHAN C. ZELLNER
Faculty Advisor
ALEXANDRA D. LAHAV
UNIVERSITY OF CONNECTICUT
SCHOOL OF LAW
FACULTY AND OFFICERS OF ADMINISTRATION
FOR THE ACADEMIC YEAR 2009–2010
Officers of Administration
Michael J. Hogan, M.A., Ph.D., President, University of Connecticut
Peter J. Nicholls , Ph.D., Provost and Executive Vice President for Academic Affairs
Jeremy Paul, J.D., Dean, School of Law
Anne Dailey, J.D., Associate Dean for Academic Affairs
Michael Fischl, J.D., Associate Dean for Research and Faculty Development
Darcy Kirk, J.D., Associate Dean for Library and Technology
Ann Crawford, M.Ed., Acting Associate Dean for Finance and Administration
Ellen K. Rutt, J.D., Associate Dean for Admissions, Student Finance and Career Services
Karen L. Demeola, J.D., Assistant Dean for Admissions and Student Finance
Faculty Emeriti
Robert L. Bard, B.A., M.A., LL.B., J.S.D., Professor of Law, Emeritus
Phillip I. Blumberg, A.B., J.D., LL.D. (Hon.), Dean and Professor of Law and Business, Emeritus
John C. Brittain, B.A., J.D., Professor of Law, Emeritus
Clifford Davis, S.B., LL.B., Professor of Law, Emeritus
Nell J. Newton, B.A., J.D., Dean and Professor of Law, Emeritus
Howard Sacks, A.B., LL.B., Dean and Professor of Law, Emeritus
George Schatzki, A.B., LL.B., LL.M., Dean and Professor of Law, Emeritus
Craig Shea, A.B., LL.B., LL.M., Professor of Law, Emeritus
Phillip Shuchman, B.A., M.A., LL.B., Professor of Law, Emeritus
Eileen Silverstein, A.D., J.D., Professor of Law Emeritus
Lester B. Snyder, B.S., LL.B., LL.M., Professor of Law, Emeritus
Terry Tondro, A.B., LL.B., M.Phil., Professor of Law, Emeritus
Nicholas Wolfson, A.B., J.D., George and Helen England Professor of Law, Emeritus
Faculty of Law
Jill Anderson, B.A., University of Washington; J.D., Columbia University; Visiting Assistant
Professor of Law
Paul Bader, B.A., Duke University; J.D., Mercer University Walter F. George School of Law;
Assistant Clinical Professor of Law
Robin D. Barnes, B.A., J.D., State University of New York at Buffalo; LL.M., University of
Wisconsin; Professor of Law
Jon Bauer, A.B., Cornell University; J.D., Yale University; Clinical Professor of Law
Loftus E. Becker, Jr., A.B., Harvard College; LL.B., University of Pennsylvania; Professor of Law
Bethany Berger, B.A., Wesleyan University; J.D., Yale University; Professor of Law
Robert Birmingham, A.B., J.D., Ph.D. (Econ.), Ph.D. (Phil.), University of Pittsburgh; LL.M.,
Harvard University; Professor of Law
William Breetz, B.A., Dartmouth College; LL.B., University of Virginia; Executive Director,
Connecticut Urban Legal Initiative, Inc.
Sara Bronin, B.A., University of Texas; M.Sc., University of Oxford (Magdalen College); J.D.,
Yale University; Associate Professor of Law
Deborah A. Calloway, B.A., Middlebury College; J.D., Georgetown University; Professor of Law
Marcia Canavan, B.A., University of California, Los Angeles; MPH., University of California, Los
Angeles; J.D., Golden Gate University School of Law and University of Colorado School of
Law; Assistant Clinical Professor of Law
Paul Chill, B.A., Wesleyan University; J.D., University of Connecticut; Clinical Professor of Law
Anne C. Dailey, B.A., Yale University; J.D., Harvard University; Evangeline Starr Professor of
Law and Asssociate Dean for Academic Affairs
Steven M. Davidoff, B.A., University of Pennsylvania; M.A., London Business School; J.D.,
Columbia University; Associate Professor of Law
Geoffrey Dellenbaugh, A.B., Princeton University; M.A., Stanford University; Ph.D., University of
Pittsburgh; J.D., University of Chicago; Assistant Clinical Professor of Law
Timothy H. Everett, B.A., M.A., Clark University; J.D., University of Connecticut; Clinical
Professor of Law
Todd D. Fernow, B.A., Cornell University; J.D., University of Connecticut; Professor of Law and
Director, Clinical Programs
Richard Michael Fischl, B.A., University of Illinois; J.D., Harvard University; Professor of Law
and Associate Dean for Research and Faculty Development
Hillary Greene, B.A., J.D., Yale University; Associate Professor of Law and Director, Intellectual
Property Clinic
Kaaryn Gustafson, A.B., Harvard University; Ph.D., J.D., University of California, Berkeley;
Associate Professor of Law
Mark W. Janis, A.B., Princeton University; B.A., M.A., Oxford University; J.D., Harvard
University; William F. Starr Professor of Law
Richard S. Kay, A.B., Brandeis University; M.A., Yale University; J.D., Harvard University;
Wallace Stevens Professor of Law
Darcy Kirk, A.B., Vassar College; M.S., M.B.A., Simmons College; J.D., Boston College;
Professor of Law and Associate Dean for Library & Technology
Peter R. Kochenburger, A.B., Yale University; J.D., Harvard University; Park Associate Clinical
Professor and Director of Graduate Programs
Lewis S. Kurlantzick, B.A., Wesleyan University; LL.B., Harvard University; Zephaniah Swift
Professor of Law
Alexandra Lahav, B.A., Brown University; J.D., Harvard University; Professor of Law
Leslie C. Levin, B.S.J., Northwestern University; J.D., Columbia University; Professor of Law
Diana L. Leyden, B.A., Union College; J.D., University of Connecticut; LL.M., Georgetown
University; Associate Clinical Professor of Law and Director, Tax Clinic
Peter L. Lindseth, B.A., J.D., Cornell University; M.A., M. Phil, Ph.D, Columbia University;
Professor of Law
Justin Long, A.B., Harvard University; J.D., University of Pennsylvania; Visiting Assistant
Professor of Law
Hugh C. Macgill, B.A., Yale University; LL.B., University of Virginia; Oliver Ellsworth Research
Professor of Law and Dean Emeritus
Neysun Mahboubi, A.B., Princeton University; J.D., Columbia University; Visiting Assistant
Professor of Law
Jennifer Brown Mailly, B.A., Brown University; J.D., Ohio State University; Assistant Clinical
Professor of Law
Margaret Martin, B.A., Boston University; J.D., Columbia University; William R. Davis Clinical
Teaching Fellow
Ruth Mason, B.A., Columbia University; J.D., Harvard University; Associate Professor of Law
Patricia A. McCoy, B.A., Oberlin College; J.D., University of California, Berkeley; Director of
Insurance Law Center and George J. and Helen M. England Professor of Law
Barbara McGrath, B.A., Yale University; J.D., University of Connecticut; Assistant Director,
Connecticut Urban Legal Initiative, Inc.
Willajeanne F. McLean, B.A., Wellesley College; B.S., University of Massachusetts; J.D.,
Fordham University; LL.M., Free University of Brussels; Professor of Law
Thomas H. Morawetz, A.B., Harvard College; J.D., M.Phil., Ph.D., Yale University; Tapping
Reeve Professor of Law and Ethics
Lily Neff, B.S.E.E, City College of New York; J.D., Pace University; Assistant Clinical Professor
of Law
R. Kent Newmyer, B.A., Doane College; Ph.D., University of Nebraska; Professor of Law and
History
Angel R. Oquendo, A.B., M.A., Ph.D., Harvard University; J.D., Yale University; Olimpiad S.
Ioffe Professor of Law
Leonard Orland, B.A., Rutgers University; LL.B., University of Pennsylvania; Oliver Ellsworth
Research Professor of Law
Sachin Pandya, B.A., University of California, Berkeley; M.A., Columbia University; J.D., Yale
University; Associate Professor of Law
Richard W. Parker, A.B., Princeton University; J.D., Yale University; D.Phil., Oxford University;
Professor of Law
Jeremy Paul, A.B., Princeton University; J.D., Harvard University; Dean and Thomas F. Gallivan,
Jr. Professor of Real Property Law
Ellen Ash Peters, B.A., Swarthmore College; LL.B., Yale University; LL.D., Yale University;
University of Connecticut; et al.; Visiting Professor of Law
Richard D. Pomp, B.S., University of Michigan; J.D., Harvard University; Alva P. Loiselle
Professor of Law
Jessica S. Rubin, B.S., J.D., Cornell University; Assistant Clinical Professor of Law
Susan R. Schmeiser, A.B., Princeton University; J.D., Yale University; Ph.D., Brown University;
Professor of Law
Peter Siegelman, B.A., Swarthmore College; M.S.L., Ph.D., Yale University; Roger Sherman
Professor of Law
James H. Stark, A.B., Cornell University; J.D., Columbia University; Professor of Law and
Director, Mediation Clinic
Martha Stone, B.A., Wheaton College; J.D., LL.M., Georgetown University; Director, Center for
Children’s Advocacy
Kurt A. Strasser, B.A., J.D., Vanderbilt University; LL.M., J.S.D., Columbia University; Phillip I.
Blumberg Professor of Law
Colin C. Tait, A.B., Cornell University; LL.B., Yale University; Oliver Ellsworth Research
Professor of Law
Stephen G. Utz, B.A., Louisiana State University; J.D., University of Texas; Ph.D., Cambridge
University; Professor of Law
Carol Ann Weisbrod, J.D., Columbia University; Ellen Ash Peters Professor of Law
Robert Whitman, B.B.A., City College of New York; J.D., Columbia University; LL.M., New
York University; Professor of Law
Steven Wilf, B.S., Arizona State University; Ph.D., J.D., Yale University; Professor of Law
Richard A. Wilson, BSc., Ph.D., London School of Economics and Political Science; Professor of
Law
Adjunct Faculty of Law
Peter G. Austin, B.S., University of Connecticut; M.S., University of Hartford; Adjunct Professor
of Law
Morris W. Banks, A.B., Dartmouth College; LL.B., Columbia University; LL.M., New York
University; Adjunct Professor of Law
Anne Davis Barry, B.S., University of Connecticut; M.S., Union College; J.D., University of
Connecticut; Lecturer in Law
Richard Baxter, B.A., Bucknell University; M.A., Yale University; J.D., Duke University; Lecturer
in Law
James W. Bergenn, B.A., Catholic University; J.D., Columbia University; Adjunct Professor of
Law
Hon. David M. Borden, B.A., Amherst College; LL.B., Harvard University; Adjunct Professor of
Law
John Buchanan, A.B., Princeton, B.A., Oxford; J.D., Harvard; Lecturer in Law
Michael A. Cantor, B.S., J.D., University of Connecticut; Adjunct Professor of Law
Christine Chabot, B.A., Northwestern University; J.D., Notre Dame Law School; Lecturer in Law
James N. Cohen, B.A., J.D., Harvard; Lecturer in Law
Gary Collins, B.A., State University of New York, Buffalo; J.D., Vanderbilt University; Lecturer
in Law
David W. Cooney, B.A., Rutgers University; M.A., Wesleyan University; J.D., University of
Dean M. Cordiano, B.A., State University of New York at Binghamton; J.D., Duke University;
Lecturer in Law
Michelle Cruz, B.A., M.A., Mount Holyoke College; J.D., University of Connecticut; Lecturer in
Law
Renee M. Dailey, B.A., J.D., University of Connecticut; Lecturer in Law
John G. Day, A.B., Oberlin College; J.D., Case Western Reserve University; Professor in
Residence
Raymond DeMeo, B.A., Williams College; J.D., University of Connecticut; Lecturer in Law
Mark Dubois, B.A., College of the Holy Cross; J.D., University of Connecticut; Lecturer in Law
Gerald P. Dwyer, A.B., Colgate University; J.D., Gonzaga University; LL.M., Georgetown
University; Lecturer in Law
Paul Eddy, B.A., Ohio Wesleyan University; J.D., University of Connecticut; Lecturer in Law
Thomas Farrish, B.A., J.D., University of Connecticut; Lecturer in Law
Rebecca Flanagan, B.A., M.A., University of Connecticut; J.D., University of North Carolina;
Lecturer in Law
Evan D. Flaschen, B.A., Wesleyan University; J.D., University of Connecticut; Adjunct Professor
of Law
Charles W. Fortune, B.A., University of Rochester; J.D., University of Connecticut; Lecturer in
Law
Michael A. Gailor, B.A., Cornell University; J.D., University of Connecticut; Lecturer in Law
William Goddard, B.A., M.B.A., Dartmouth; J.D., University of Connecticut; Lecturer in Law
Ira H. Goldman, B.A., Cornell University; J.D., Yale University; Adjunct Professor of Law
Daniel L. Gottfried, B.A., J.D., University of Connecticut, Lecturer in Law
Andrew S. Groher, B.A., University of Virginia; J.D., University of Connecticut; Adjunct
Professor of Law
Albert B. Harper, B.A., University of Texas; J.D., Ph.D., University of Connecticut; Adjunct
Professor of Law
John Harris, B.S.E., Princeton; J.D., University of Wisconsin; Adjunct Professor of Law
Wesley Horton, B.A., Harvard University; J.D., University of Connecticut; Adjunct Professor of
Law
John Houlihan, B.A., Providence College; J.D., St. John’s University; Lecturer in Law
Daniel Klau, B.A., University of California, San Diego; J.D., Boston University; Lecturer in Law
Charles H. Klippel, B.A., M.Ed., M.P.H., J.D., Harvard University; Lecturer in Law
Barry Kramer, B.Ch.E., Rensselaer Polytechnic Institute; J.D., New York University; Lecturer in
Law
John H. Lawrence, Jr., B.S., Washington and Lee University; J.D., University of Virginia; Lecturer
in Law
Henry C. Lee, B.S., John Jay College of Criminal Justice; M.S., Ph.D., New York University;
Dr.Sci. (Hon.), University of New Haven; Dr.Hum. (Hon.), St. Joseph College; Adjunct
Professor of Law
Erik T. Lohr, B.S., Thomas A. Edison State College; J.D., University of Connecticut; Lecturer in
Law
James Lotstein, B.S., Northwestern University; J.D., University of Connecticut, Lecturer in Law
Joseph A. MacDougald, B.A., Brown University; M.B.A., New York University; J.D., University
of Connecticut; M.E.M., Yale University; Lecturer in Law
Robert G. Madden, B.S.W., Providence College; M.S.S.W., Columbia University School of Social
Work; J.D., University of Connecticut, Lecturer in Law
Thomas S. Marrion, A.B., College of the Holy Cross; J.D., University of Connecticut; Adjunct
Professor of Law
James F. Meehan, B.A., University of Arizona; J.D., University of Connecticut; Lecturer in Law
Dwight Merriam, B.A., University of Massachusetts, M.R.P., University of North Carolina, J.D.,
Yale University; Lecturer in Law
Jamie L. Mills, B.A., Eastern Connecticut State University; J.D., University of Connecticut;
Lecturer in Law
Joseph Mirrione, B.A., Marist College; J.D., Vermont Law School; Lecturer in Law
Derek L. Mogck, B.A., Gordon College; M.S., University of Massachusetts; J.D., University of
Umar F. Moghul, B.A., M.A., University of Pennsylvania; J.D., Temple University; Lecturer in
Law
Thomas B. Mooney, B.A., Yale University; J.D., Harvard University; Adjunct Professor of Law
Ronald T. Murphy, B.S., Springfield College; J.D., University of Connecticut; Lecturer in Law
Henry F. Murray, B.A., Yale University; J.D. University of Connecticut; Lecturer in Law
Kevin O’Connor, B.A., University of Notre Dame; J.D., University of Connecticut; Lecturer in
Law
Andrew J. O’Keefe, B.S., College of the Holy Cross; J.D., University of Connecticut; Adjunct
Professor of Law
Cornelius O’Leary, B.A., Williams College; M.A., Trinity College; J.D., University of
Connecticut; Adjunct Professor of Law and Mark A. Weinstein Clinical Teaching Fellow
John Pagini, B.A., Central Connecticut State University, M.P.A., University of Hartford; Lecturer
in Law
Rosemarie Paine, B.S., Southern Connecticut State University; J.D., University of Connecticut;
Lecturer in Law
Humbert J. Polito, Jr., A.B., College of the Holy Cross; J.D., University of Connecticut; Adjunct
Professor of Law
Elliott B. Pollack, A.B., Columbia College; LL.B., Columbia Law School; Lecturer in Law
Hon. Elliot D. Prescott, B.A., University of Massachusetts; J.D., University of Connecticut;
Lecturer in Law
Renee C. Redman, B.A., Michigan State University; J.D., Brooklyn Law School; Lecturer in Law
Leah Reimer, B.S., J.D., Ph.D., University of Connecticut; Lecturer in Law
Roger Reynolds, B.A., Macalester College; J.D., New York University; Lecturer in Law
Barbara Rezner, B.A., Gettysburg College; J.D., Washington and Lee University; Lecturer in Law
Louis Ricciuti, B.A., Boston College; J.D., University of Connecticut; Lecturer in Law
Tracy Rich, B.A., Union College; J.D., New York University School of Law; L.L.M., Boston
University School of Law; Lecturer in Law
James K. Robertson, Jr., B.A., Yale University; M.A., Hartford Seminary; J.D., University of
Morgan Paul Rueckert, B.A., J.D., University of Connecticut; Lecturer in Law and Mark A.
Weinstein Clinical Teaching Fellow
Patrick J. Salve, B.S., J.D., University of Pennsylvania; Adjunct Professor of Law
Hon. Michael R. Sheldon, A.B., Princeton University; J.D., Yale University; Adjunct Professor of
Law
Sandra L. Sherlock-White, B.A., Central Connecticut State College; J.D., Western New England
College; Lecturer in Law
Jay. E. Sicklick, B.A., Colgate University; J.D., Boston College; Adjunct Professor of Law
Douglas Simpson, A.B., Dartmouth College; J.D., University of Connecticut; Lecturer in Law
Mark H. Taylor, B.A., Drew University; J.D., University of Connecticut; Lecturer in Law
James R. Turcotte, B.A., Boston University; J.D., Western New England College; Lecturer in Law
Stefan Underhill, B.A., University of Virginia; B.A., Oxford University; J.D., Yale University;
Lecturer in Law
Arthur Webster, B.A., Bradley University; J.D., Georgetown University; Adjunct Professor of Law
William Wilcox, B.A., University of Connecticut; J.D., Suffolk University; Lecturer in Law
Michael Wilder, B.A., Yale University; LL.B., Harvard University; Lecturer in Law
Paul B. Zolan, B.A., Trinity College, J.D., University of Connecticut; Lecturer in Law
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Article
Identifying Government Speech
ANDY G. OLREE
The U.S. Supreme Court has interpreted the Speech Clause of the First
Amendment to mean that when the government distributes money or other
resources to private speakers, it generally may not discriminate among
speakers based on viewpoint. The government is, however, allowed to
express its own viewpoint, even if it enlists the aid of private parties to get
the message out, as long as the communication does not violate some
separate legal restriction, such as the Establishment Clause. Together,
these understandings form the core of what has become known as the
“government speech doctrine.” This doctrine signals that distinguishing
between government speech and private speech will become crucial in
many cases involving either the Speech Clause or the Establishment
Clause. While the Court has announced the distinction in general terms
and has decided cases based on it—including a notable case this term
involving Ten Commandments monuments—the Court has yet to announce
a standard by which judges can reliably identify government speech across
a range of cases. After examining several attempts by others to formulate
such a standard, this Article suggests that the Court has now identified
three basic types of government speech. Accordingly, the Article proposes
a three-factor test for identifying government speech, demonstrating how
the test could function as a unifying explanation of precedent, and a
uniform method of resolving future cases.
365
ARTICLE CONTENTS
I. INTRODUCTION .......................................................................................... 367
II. THE ORIGINS OF THE GOVERNMENT SPEECH DOCTRINE ............. 374
III. THE BINARY APPROACH USING A SINGLE-FACTOR TEST............ 379
IV. THE BINARY APPROACH USING THE FOUR-PRONGED TEST ....... 386
A. THE TENTH CIRCUIT FORMULATES THE FOUR-PRONGED TEST .................. 386
B. THE FOURTH CIRCUIT ADOPTS THE FOUR-PRONGED TEST......................... 388
C. THE NINTH CIRCUIT ADOPTS THE FOUR-PRONGED TEST ........................... 391
D. THE SEVENTH CIRCUIT JOINS IN—OR DOES IT? ........................................ 392
E. THE EIGHTH CIRCUIT APPLIES THE FOUR-PRONGED TEST
TO ANSWER “ONE KEY QUESTION” ...................................................... 394
F. DIFFICULTIES WITH THE FOUR-PRONGED TEST .......................................... 395
V. THE “HYBRID” OR “MIXED” SPEECH APPROACH ............................. 400
A. JUDGES WHO HAVE ADVOCATED THE “HYBRID” OR
“MIXED” SPEECH APPROACH ............................................................... 401
B. PROFESSOR CORBIN’S “MIXED SPEECH” APPROACH.................................. 405
C. DIFFICULTIES WITH THE “HYBRID” OR “MIXED” SPEECH
APPROACH MORE GENERALLY ............................................................. 409
VI. AN ALTERNATIVE APPROACH: THREE KINDS
OF GOVERNMENT SPEECH ................................................................... 410
A. THE GOVERNMENT’S OWN INDEPENDENT IDEA ......................................... 411
B. A FORMAT CONTROLLED AND RESERVED BY THE GOVERNMENT .............. 415
C. A CLEAR LITERAL SPEAKER EMPLOYED BY THE GOVERNMENT................. 420
VII. USING THE THREE-PART TEST TO UNDERSTAND
PAST AND FUTURE CASES ................................................................... 422
A. EXPLAINING SUPREME COURT PRECEDENTS .............................................. 422
B. FUTURE APPLICATIONS—SPECIALTY LICENSE PLATES .............................. 430
VIII. CONCLUSION......................................................................................... 433
Identifying Government Speech
ANDY G. OLREE*
I. INTRODUCTION
One of the most familiar axioms in all of First Amendment law is the
general rule that the government is not allowed to restrict private
expression based on viewpoint.1 The axiom applies even when speakers
use governmental resources to get their message out. From time to time,
the government actually facilitates expression by private persons—for
example, by subsidizing a variety of speakers, by offering public land or
other property as a forum for those who wish to speak, or by providing
people some means of accessing a variety of private information sources
and opinions. In these and other similar contexts, government is not
allowed to deny access to public property or support on the basis of the
speaker’s viewpoint.2 The government may grant access to its aid
selectively, but the access criteria must be viewpoint-neutral.
However, government itself sometimes wishes to express its own
particular viewpoint, and it is generally allowed to do so. Governments
often attempt to influence behavior and thought, not only by coercively
penalizing certain behaviors or expressions, but by expressing viewpoints
designed to affect the social milieu or to persuade people to think and act
*
Professor of Law, Faulkner University, Thomas Goode Jones School of Law.
See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (“It is
axiomatic that the government may not regulate speech based on its substantive content or the message
it conveys.” (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972))).
2
See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001) (finding that
government cannot restrict speech on the basis of viewpoint and that any restriction must be
reasonable); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541–42 (2001) (finding that a viewpointbased funding restriction was unconstitutional); Rosenberger, 515 U.S. at 829–31, 834 (“The
government must abstain from regulating speech when the specific motivating ideology or the opinion
or perspective of the speaker is the rationale for the restriction.”); Lamb’s Chapel v. Ctr. Moriches
Union Free Sch. Dist., 508 U.S. 384, 392–94 (1993) (finding that the government may control access to
a nonpublic forum “so long as the distinctions drawn are reasonable in light of the purpose served by
the forum and are viewpoint neutral”); Bd. of Educ. v. Pico, 457 U.S. 853, 870–71 (1982) (plurality
opinion) (finding that the Board of Education has discretion in determining the content in school
libraries, but the “discretion may not be exercised in a narrowly partisan or political manner” such that
certain ideas would be suppressed); see also United States v. Am. Library Ass’n, 539 U.S. 194, 236
(2003) (Souter, J., dissenting) (“[I]n extreme cases [one could] expect particular [book acquisition]
choices [by public libraries] to reveal impermissible reasons (reasons even the plurality would consider
to be illegitimate), like excluding books because their authors are Democrats or their critiques of
organized Christianity are unsympathetic.”); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,
587 (1998) (“[E]ven in the provision of subsidies, the Government may not ‘ai[m] at the suppression of
dangerous ideas.’” (second alteration in original) (quoting Regan v. Taxation with Representation of
Wash., 461 U.S. 540, 550 (1983))); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,
45–46 (1983) (noting that when governmental property functions as any kind of expression forum,
whether public or nonpublic, the government may not “suppress expression [in the forum] merely
because public officials oppose the speaker’s view”).
1
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[Vol. 42:365
3
differently.
Government then becomes one of a host of speakers
competing in the marketplace of ideas. Our notion of freedom of speech
has not demanded that the government abstain from such a role, nor have
we required government to endorse all viewpoints equally as it sends its
messages.4 In other words, most citizens would likely agree with the
courts that the government may send the message “Say no to drugs”
without offending the First Amendment and without having to send the
alternative message “Say yes to drugs.”5 Viewpoint neutrality is not
usually required of the government when it is sending its own messages.6
Hence, when courts examine viewpoint-based restrictions involving
governmental property or resources, one distinction makes all the
difference—if the speech is the government’s own speech, the viewpoint
restrictions are permissible, but if the speech is private speech facilitated
by government resources, viewpoint restrictions are generally
impermissible. Classifying the speech as either government speech or
private speech becomes a crucial question—often the crucial question—in
deciding these speech cases.
When claims involve the Establishment Clause rather than the Speech
Clause, identifying government speech is often just as crucial, although the
effects of the identification are reversed. In this sort of claim, someone has
alleged that the government’s message constitutes governmental support
of, or opposition to, religion, in violation of the Establishment Clause.
Although private parties may send their own messages approving or
disapproving of religion, the Supreme Court sometimes interprets the
Establishment Clause to forbid the government from doing so.7 So if the
3
See MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT
EXPRESSION IN AMERICA 5–10, 13–15 (1983) (discussing the “government’s increasing influence on
and involvement in communications networks”); Randall P. Bezanson & William G. Buss, The Many
Faces of Government Speech, 86 IOWA L. REV. 1377, 1380–81, 1384–87 (2001) (identifying the
capacities in which government speaks); Gia B. Lee, Persuasion, Transparency, and Government
Speech, 56 HASTINGS L.J. 983, 983–84, 986–87, 992 (2005) (arguing for greater transparency when
government is promoting a particular message).
4
See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553, 559–61 (2005) (holding that a federal
program that finances advertising to promote an agricultural product is government speech); Velazquez,
531 U.S. at 541 (“[V]iewpoint-based funding decisions can be sustained in instances in which the
government is itself the speaker . . . .”); Rosenberger, 515 U.S. at 833 (“[W]hen the government
appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.”);
Rust v. Sullivan, 500 U.S. 173, 194 (1991) (noting that the government did not “discriminate[] on the
basis of viewpoint when it [chose] to fund a program dedicated to advanc[ing] certain [] goals”).
5
See DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758, 761 (D.C. Cir. 2007) (“In
sponsoring Nancy Reagan’s ‘Just Say No’ anti-drug campaign, the First Amendment did not require the
government to sponsor simultaneously a ‘Just Say Yes’ campaign.”).
6
Governmental messages regarding religion may be an exception to this rule, at least sometimes.
See infra note 7 and accompanying text.
7
See, e.g., McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005) (“By showing a purpose
to favor religion, the government ‘sends [an impermissible] message to . . . nonadherents’” (quoting
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309–10 (2000))); Santa Fe Indep. Sch. Dist., 530 U.S.
at 302 (“[T]here is a crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and
2009]
IDENTIFYING GOVERNMENT SPEECH
369
message constitutes government speech rather than private speech, the
government may be violating the Establishment Clause.
Identifying government speech becomes more difficult as governments
become more and more involved in facilitating private speech, on the one
hand, and in sending their own messages, on the other. When a private
speaker uses governmental property or support as she sends her message,
who is really speaking? How can we tell? The higher the level of
governmental support and involvement, the more the speech looks like the
government’s own speech, particularly because governments now send so
many messages of their own, and because this government may have made
some affirmative decision to permit this particular speaker to use
governmental resources, a decision similar in many respects to the decision
to speak. But private speech does not become government speech simply
because the government allows the speaker to use governmental resources
to get the message out.8 Judges must distinguish the government’s own
messages from those of others, particularly in the contexts of Speech
Clause claims, in which a finding of government speech is a point in the
government’s favor, and Establishment Clause claims, in which a finding
of government speech is a strike against the government.
A uniform test for identifying government speech in these various
contexts seems desirable, but lower courts are struggling mightily to come
up with one. A salient example is the set of cases dealing with specialty
license plate programs,9 in which, for an additional fee, a state allows
motorists obtaining license plates to choose from a menu of unique designs
Typically, private
in lieu of the state’s standard plate design.10
Exercise Clauses protect.” (citing Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990))); County of
Allegheny v. ACLU, 492 U.S. 573, 600–01 (1989) (holding that the Establishment Clause prohibited a
county’s display of a crèche because by permitting the display under the circumstances, “the county
sends an unmistakable message that it supports and promotes the Christian praise to God that is the
creche’s religious message”).
8
See supra note 2 and accompanying text for examples of courts not allowing the government to
deny access to public property or support on the basis of the speaker’s viewpoint.
9
See Roach v. Stouffer, 560 F.3d 860, 862, 869–70 (8th Cir. 2009) (holding that Missouri’s
specialty license plate program violated the First Amendment); Choose Life Ill., Inc. v. White, 547 F.3d
853, 863 (7th Cir. 2008) (holding that messages on specialty license plates do not constitute
government speech); Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 965–66 (9th Cir. 2008) (holding
that messages conveyed through specialty license plates primarily represent private speech), cert.
denied, 129 S. Ct. 56 (2008); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 376–77 (6th Cir. 2006)
(holding that specialty license plates represent government speech for the purposes of the Free Speech
Clause); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005) (finding that the court did not have
jurisdiction over a suit over a specialty license plate program that diverted excess charges to
organizations endorsed by the legislature); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 794
(4th Cir. 2004) (holding that specialty license plates were neither purely government speech nor purely
private speech); Women’s Emergency Network v. Bush, 323 F.3d 937, 943–45 (11th Cir. 2003)
(holding that individual residents did not have taxpayer standing to challenge Florida’s specialty license
plate program under the Establishment Clause).
10
For a discussion of various states’ specialty license plate programs, their general features, and
some differences between them, see Leslie Gielow Jacobs, Free Speech and the Limits of Legislative
Discretion: The Example of Specialty License Plates, 53 FLA. L. REV. 419, 424–41 (2001); Amy Riley
370
[Vol. 42:365
organizations must apply in advance to the state for permission to add their
own design to the menu of options. Many states have approved a lengthy
menu of choices, but occasionally a state will deny a particular application
because of the viewpoint represented by the applicant group or its
proposed plate design.11 If the approved specialty plate designs are viewed
as government speech, a viewpoint-based denial can be upheld as a
governmental decision not to speak; but if the designs are viewed as
private speech using government property, any viewpoint-based denial is
presumptively unconstitutional, even though the plates are owned and
issued by the government. These cases have been giving federal courts fits
over the past decade. Two circuits have refused to decide such cases on
the constitutional merits,12 but the circuits that have addressed the First
Amendment arguments have employed widely varying analyses. One
circuit has viewed specialty plates as purely government speech;13 at least
two have viewed the plates as private speech;14 one has viewed the plates
Lucas, Comment, Specialty License Plates: The First Amendment and the Intersection of Government
Speech and Public Forum Doctrines, 55 UCLA L. REV. 1971, 2007–09, 2011–13, 2017 (2008).
11
There is some dispute in some of these cases as to whether the state’s denial was driven by an
intent to exclude a particular viewpoint or an entire subject matter. If (as the Seventh Circuit has
recently concluded with respect to Illinois’s specialty plate program) the state’s denial is truly the
product of a reasonable desire to exclude from specialty plates all points of view related to a particular
subject matter, the denial might be construed as viewpoint-neutral and is somewhat more defensible,
even if the plates are not deemed to be government speech. Compare Choose Life, 547 F.3d at 865–67
(concluding that Illinois’s denial of an application for a “Choose Life” license plate was founded in a
viewpoint-neutral state policy of refusing to issue plates for all groups expressing opinions on the
subject matter of abortion), with Arizona Life Coal., 515 F.3d at 971–72 (concluding that Arizona’s
denial of an application for a “Choose Life” license plate was founded in a state policy of refusing to
issue plates for groups weighing in on the issue of abortion because it was so controversial, but that this
fact demonstrated the state’s viewpoint discrimination, since the state’s statutes did not exclude
controversial messages in general or the subject of abortion in particular, and the denial was based on
the divisiveness of the proffered viewpoint). This Article, however, focuses on situations in which
viewpoint discrimination is present or assumed. See, e.g., Sons of Confederate Veterans, Inc. v.
Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 623–26 (4th Cir. 2002) (finding viewpoint
discrimination where the state disapproved an organization’s proposed specialty plate design containing
a Confederate flag because of the viewpoint represented by the flag). In such cases, the crucial judicial
task usually will be to distinguish government speech from private speech. In other words, courts must
determine whether the viewpoint discrimination represents the government’s attempt to control its own
message or instead to disadvantage a disfavored private viewpoint.
12
The Eleventh Circuit has dismissed a specialty plate complaint for lack of standing. See
Women’s Emergency Network, 323 F.3d at 940. And the Fifth Circuit has held that the specialty plate
fee is a tax and that therefore the federal Tax Injunction Act forbids federal court jurisdiction over
specialty plate complaints. See Henderson, 407 F.3d at 352.
13
See Bredesen, 441 F.3d at 375–76 (Sixth Circuit) (holding that a “Choose Life” specialty
license plate was government speech because the state had “final approval authority over every word
used”).
14
See Roach, 560 F.3d at 868 (Eighth Circuit) (finding that “under all the circumstances a
reasonable and fully informed observer would recognize the message on the ‘Choose Life’ specialty
plate as the message of a private party, not the state”); Arizona Life Coal., 515 F.3d at 968 (Ninth
Circuit) (finding that specialty plates are private speech because the state did not “bear[] ultimate
responsibility for the content of the speech”); see also Sons of Confederate Veterans, 288 F.3d at 621–
22 (Fourth Circuit) (finding, in a case decided two years before Rose, that specialty plates constituted
private speech); infra note 17 and accompanying text (noting that the Seventh Circuit has rejected the
2009]
371
as a hybrid of both governmental and private speech, requiring the court to
impose a sort of intermediate scrutiny in evaluating viewpoint-based
denials of specialty plate applications;15 and one, claiming that “privatespeech rights are implicated” by the plates and denying that the plates are
government speech,16 has applied conventional forum analysis to the
plates—as if they are private speech—without saying whether they
constitute private speech or some form of hybrid speech.17 A clarification
of the government speech doctrine would surely aid in the uniform
resolution of such cases.
On the Establishment Clause side, the identification of government
speech can prove just as troublesome. For example, the circuit courts have
often been asked to identify government speech in cases involving
inanimate displays in city parks. One familiar bone of contention is the
nativity scene or crèche erected on public property during the Christmas
season.18 If a nativity scene is displayed on public property under
circumstances suggesting that the government itself was “send[ing] an
unmistakable message” endorsing Christianity, the display is forbidden by
the Establishment Clause.19 But if such displays are donated or loaned to
the government by private organizations, could they be viewed as private
speech and thus immunized from Establishment Clause challenges?20
Ten Commandments monuments, often donated to state or local
government by a private religious or charitable group, represent another
familiar type of inanimate display. Some circuit courts have struck down
such displays as violations of the Establishment Clause.21 The U.S.
contention that specialty plates were government speech and analyzed them using conventional forum
analysis as if they constituted private speech, but refused to say whether they constituted private speech
or hybrid speech).
15
At least two of the judges on the Fourth Circuit’s three-judge panel in Rose reached this
conclusion in separate opinions, although there was no opinion for the court. See Planned Parenthood
of S.C., Inc. v. Rose, 361 F.3d 786, 794–95 (4th Cir. 2004); id. at 800 (Luttig, J., concurring in
judgment); see also id. at 801 (Gregory, J., concurring in judgment) (suggesting that specialty plate
programs “have elements of both private and government speech”).
16
Choose Life, 547 F.3d at 864 (Seventh Circuit).
17
Id. at 864–67.
18
See, e.g., Lynch v. Donnelly, 465 U.S. 668, 671 (1984).
19
See County of Allegheny v. ACLU, 492 U.S. 573, 600 (1989); cf. id. at 601 (“[B]y prohibiting
government endorsement of religion, the Establishment Clause prohibits . . . the government’s lending
its support to the communication of a religious organization’s religious message.”).
20
One circuit has suggested that donated permanent displays in city parks constitute private
speech in a public forum. See Summum v. Pleasant Grove City, 483 F.3d 1044, 1047 n.2, 1050–52
(10th Cir. 2007), rev’d, 129 S. Ct. 1125, 1132–34 (2009) (holding that the placement of a permanent
monument in a public park is a form of government speech); Summum v. City of Ogden, 297 F.3d 995,
1002, 1004–06 (10th Cir. 2002) (holding that permanent monuments were a nonpublic forum because
property was “not by tradition or designation a forum for public communication” (quotations omitted)).
21
See, e.g., Adland v. Russ, 307 F.3d 471, 481–82, 490 (6th Cir. 2002) (holding that the
Commonwealth, by displaying a Ten Commandments monument, “emphasize[d] a single religious
influence to the exclusion of all other religious and secular influences” in violation of the Establishment
Clause); Books v. City of Elkhart, 235 F.3d 292, 307–08 (7th Cir. 2000) (holding that a Ten
Commandments monument on city property improperly advanced or endorsed religion in violation of
372
[Vol. 42:365
Supreme Court and some other circuits have held that governmental
display of such monuments is sometimes permissible, but the opinions
were not grounded in any assumption that the monuments constituted
private speech rather than government speech.22 Yet the Tenth Circuit held
in 2002 that donated monuments of this sort do constitute private speech.23
Reasoning from that precedent, a competing religious group later
convinced the circuit that a city displaying a donated Ten Commandments
monument in the city’s park is operating a traditional public forum for
private speech and must therefore also accept and display the group’s own
unique donation to the city: a monument to the Seven Aphorisms of
Summum.24 Recently, the U.S. Supreme Court reversed the Tenth
Circuit’s decision, unanimously holding that donated Ten Commandments
monuments constitute government speech.25 While clarifying the law with
respect to certain monuments, however, the Court did not venture a method
for identifying government speech in other circumstances.26
Lower courts are increasingly required to identify government speech
in a wide variety of free speech and religious establishment cases, and the
circuits are reaching a wide variety of conclusions about how this ought to
be done. The confusion has led some commentators to suggest that the
two-category approach itself is the problem. Following the lead of the
Fourth Circuit in its most recent specialty plates case, commentators are
increasingly calling for an end to the rigidly binary government
speech/private speech distinction, claiming that much speech falls
somewhere in between and arguing for the creation of a third category of
the Establishment Clause); see also Staley v. Harris County, 461 F.3d 504, 514–15 (5th Cir. 2006)
(holding that a county monument commemorating a local citizen and located on courthouse grounds
violated the Establishment Clause because it contained an open Bible and had been recently refurbished
for the purpose of calling attention to the Bible), vacated en banc as moot and unripe, 485 F.3d 305
(5th Cir. 2007), cert. denied, 128 S. Ct. 647 (2007); Glassroth v. Moore, 335 F.3d 1282, 1284 (11th
Cir. 2003) (holding that the Establishment Clause was violated when the chief justice of the state
supreme court erected a Ten Commandments monument, built with private funds, in a state judicial
building).
22
See Van Orden v. Perry, 545 U.S. 677, 691–92 (2005) (ruling that the display of a Ten
Commandments monument on the grounds of the state capitol did not violate the Establishment
Clause); Card v. City of Everett, 520 F.3d 1009, 1020–21 (9th Cir. 2008) (holding that a city’s display
of a Ten Commandments monument was permissible because, inter alia, “nothing apart from the
monument’s text suggests a religious motive on the City’s part”); ACLU Neb. Found. v. City of
Plattsmouth, 419 F.3d 772, 776–78 (8th Cir. 2005) (holding that the city’s display of a Ten
Commandments monument did not violate the Establishment Clause because the monument made
passive use of the Commandments “to acknowledge the role of religion in our Nation’s heritage”).
23
City of Ogden, 297 F.3d at 1004–06.
24
Pleasant Grove City, 483 F.3d at 1047, 1050–55.
25
Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1129 (2009); id. at 1141 (Souter, J.,
concurring in judgment). See infra notes 299–306 and accompanying text for further discussion of
Pleasant Grove and the Supreme Court’s holding that the government speaks when it accepts,
embraces, and communicates a donated message.
26
See Pleasant Grove City, 129 S. Ct. at 1132 (“There may be situations in which it is difficult to
tell whether a government entity is speaking on its own behalf or is providing a forum for private
speech, but this case does not present such a situation.”).
2009]
373
“hybrid” or “mixed” speech, restrictions on which would qualify for some
medium degree of scrutiny or an ad hoc balancing of the competing
interests involved.27
The hybrid approach is alluring, but in this Article, I will argue that it
leads to inconsistent results and that it may insufficiently protect free
speech rights; furthermore, I will argue, the hybrid approach is in tension
with the whole notion of government speech as developed by the Supreme
Court. I will also argue that, while the traditional binary approach is
preferable, the tests developed by some circuits to categorize speech within
that binary framework are flawed and likewise misstate the law. I believe
Supreme Court precedents can be distilled into the notion that government
speech arises in one of three basic ways. I will propose this three-factor
test as a preferable method of consistently identifying government speech
in both expression cases and establishment cases. I do not argue that the
Court has formally or intentionally embraced this test—only that the test
provides a useful way of understanding what the Court has done and
predicting what it will do. My purpose is thus to explain the results in a
variety of the Court’s speech and establishment cases, and also,
secondarily, to provide a few reasons why the Court’s approach,
understood in this way, might be preferable to alternatives.28
Part II briefly describes the development of the government speech
doctrine by the Supreme Court. Part III discusses one approach used by
the Sixth Circuit to identify government speech, an approach that in effect
considers a single factor to be determinative. Part IV analyzes a fourpronged test for identifying government speech which has been more
commonly used by various circuits. Part V discusses the proposal by a few
judges and recent commentators that courts should recognize a third
“hybrid” or “mixed” category of speech. Part VI suggests an alternative
approach which I believe explains and reconciles the key Supreme Court
precedents while also providing a more complete and consistent protection
of private speech. Finally, Part VII suggests ways in which this approach
might be used in understanding Supreme Court precedents and resolving
some current legal controversies in both free speech and establishment
contexts.
27
For the most extended recent discussion, see Caroline Mala Corbin, Mixed Speech: When
Speech Is Both Private and Governmental, 83 N.Y.U. L. REV. 605, 675–77 (2008). Other recent
commentators have also suggested or assumed this approach, albeit without extended consideration of
alternatives. See, e.g., Lucas, supra note 10, at 2013, 2022; Helen Norton, The Measure of Government
Speech: Identifying Expression’s Source, 88 B.U. L. REV. 587, 620–21 (2008).
28
My primary purpose is descriptive. While I do provide a very limited defense of the Court’s
approach—partly in the form of a critique of existing alternatives—a fuller normative evaluation must
await another article. I likewise save for another day the development of a unifying theory that might
explain why the Court sees government speech in each of these three particular situations and not
others.
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II. THE ORIGINS OF THE GOVERNMENT SPEECH DOCTRINE
According to accepted wisdom, the government speech doctrine, as
articulated by the U.S. Supreme Court, had its genesis in Rust v. Sullivan.29
In Rust, federal law prohibited the distribution of certain federal “family
planning project[]” funds to entities that provided abortion counseling or
referrals, or which otherwise encouraged abortion.30 The Court rejected
the claim that the government had selectively withheld funds from a
handful of private speakers due to its disfavor of their viewpoint; instead,
the Court upheld the program as a permissible decision by the federal
government about how it would design its own programs and spend its
own money.31 “‘[A] legislature’s decision not to subsidize the exercise of
a fundamental right,’” said the Court, “‘does not infringe the right.’”32 The
Court saw the funding limitation as a decision about how to use limited
subsidy resources—not as discrimination against a disfavored viewpoint,
but as the inevitable result of defining the scope and limits of a
governmental spending program.33
The Court itself seems to have accepted the common view that the
government speech doctrine originated in its opinion in Rust. Ten years
after Rust, the Court described the case’s implications as follows:
The Court in Rust did not place explicit reliance on the
rationale that the counseling activities of the doctors . . .
amounted to governmental speech; when interpreting the
holding in later cases, however, we have explained Rust on
this understanding. We have said that viewpoint-based
funding decisions can be sustained in instances in which the
government is itself the speaker . . . or instances, like Rust, in
which the government “used private speakers to transmit
specific information pertaining to its own program.”34
Lower courts have widely adopted this understanding of Rust as a
leading case on the government speech doctrine—or at least have noted
that the Court has done so.35
According to this accepted wisdom, the government prevailed in Rust
because the funded speech at issue, although conveyed by private parties,
29
500 U.S. 173 (1991).
Id. at 178–80.
31
Id. at 193–94.
32
Id. at 193 (quoting Regan v. Taxation With Representation, 461 U.S. 540, 549 (1983)).
33
Id. at 194–95.
34
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (quoting Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)).
35
E.g., Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288
F.3d 610, 617–18 (4th Cir. 2002); Wells v. City & County of Denver, 257 F.3d 1132, 1140 (10th Cir.
2001); see also ACLU of Tenn. v. Bredesen, 441 F.3d 370, 378 (6th Cir. 2006) (referring to the
Supreme Court’s holding in Rust as authority when deciding a government speech doctrine case).
30
2009]
375
was government speech rather than private speech. The funding rules were
part of a larger governmental program to encourage or discourage some
private activity—in Rust, a program to discourage abortion and to
encourage family planning using alternative methods. The funds were
allocated so as to ensure that private speakers would “transmit specific
information”—the government’s message—in support of the governmental
program.36 The “family planning without abortion” message was the
government’s own message, crafted in advance by the government, and the
funds at issue were part of a program designed to promote that kind of
family planning rather than speech in general;37 therefore, the government
was not required to fund messages by private speakers expressing other
viewpoints, conveying other information, or offering other services. The
viewpoint restriction could stand.
The government speech doctrine clearly continues in full strength. In a
pair of subsequent cases alleging compelled speech by means of a forced
subsidy,38 the Court signaled that the presence of government speech
would be determinative.39 These cases involved the claim that the
government had compelled the claimants to pay fees or taxes which were
used in part to fund messages with which the claimants disagreed.
In one of the cases, public university students were forced to pay a
student activity fee, a portion of which was later distributed to student
groups conveying messages that certain students found objectionable.40
The objecting students claimed they were being compelled to speak, in
violation of their First Amendment rights.41 Although the messages were
deemed private speech, the Court upheld the program to the extent that the
government’s criteria for distribution were viewpoint-neutral;42 the Court
noted in dicta, however, that if the objectionable messages had constituted
government speech, viewpoint neutrality in the distribution might not be
required because the government is allowed to tax even dissenting parties
to pay for its own speech.43
In the other case, decided only four years ago, the Court turned this
dictum into law, upholding the disputed tax precisely because the Court
36
Rosenberger, 515 U.S. at 833.
See Rust, 500 U.S. at 178–79 (stating that Congress passed Title X to ensure that funds would
only be used for preventive family planning and not for abortion).
38
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 555–56 (2005); Bd. of Regents of Univ. of
Wis. Sys. v. Southworth, 529 U.S. 217, 221 (2000).
39
A line of compelled speech precedents holds that the First Amendment Speech Clause forbids
the government under some circumstances to force private parties to pay a subsidy to support the
speech of other private parties with whom the payer disagrees. E.g., United States v. United Foods,
Inc., 533 U.S. 405, 410 (2001); Keller v. State Bar of Cal., 496 U.S. 1, 14 (1990); Abood v. Detroit Bd.
of Educ., 431 U.S. 209, 233–35 (1977).
40
Southworth, 529 U.S. at 222–27.
41
Id. at 226–27.
42
Id. at 233–34.
43
Id. at 229.
37
376
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found the funded messages, conveyed by private parties, to be government
speech.44 The federal government had taxed sales and imports of cattle to
fund “beef-related projects” such as “promotion and research.”45 A
substantial amount of the money was used to fund beef advertising,
including ads containing the familiar slogan “Beef. It’s What’s for
Dinner.”46 Some beef producers did not like the ads and complained that
the tax effectively compelled them to speak against their will, in violation
of the First Amendment.47 The Court upheld the tax, however, on the
ground that the ads at issue constituted government speech.48 The Court
was able to reach this conclusion because:
The message set out in the beef promotions is from
beginning to end the message established by the Federal
Government. . . . Congress and the Secretary [of Agriculture]
have set out the overarching message and some of its
elements, and they have left the development of the
remaining details to an entity whose members are answerable
to the Secretary . . . .
Moreover . . . the Secretary exercises final approval
authority over every word used in every promotional
campaign.49
Importantly, the Court said that the finding of government speech would be
the same even if a reasonable viewer would not attribute the message to the
government.50
Meanwhile, in other cases where the government used viewpoint as a
criterion for allocating funds, the Court struck down the funding program
when it found that the funded messages constituted private speech rather
than government speech. In Rosenberger v. Rector and Visitors of
University of Virginia,51 a public university required the payment of a
student activity fee which was collected in a fund and distributed to student
groups conveying various messages.52 The Court struck down the program
upon finding that the government’s criteria for distributing the funds were
not viewpoint-neutral and that the messages themselves constituted private
speech.53 The Court distinguished Rust—which had also involved criteria
that were not viewpoint-neutral—by noting that in Rust, the funded
44
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553, 560–64 (2005).
Id. at 554.
46
Id.
47
Id. at 555–56.
48
Id. at 553, 560–64.
49
Id. at 560–61.
50
Id. at 564 n.7.
51
515 U.S. 819 (1995).
52
Id. at 823–25.
53
Id. at 833–35.
45
2009]
377
messages constituted government speech because “the government did not
create a program to encourage private speech but instead used private
speakers to transmit specific information pertaining to its own program.”54
A few years later the Court extended this reasoning in a case involving
federal funding for legal services.55 Federal laws authorized funding for
private organizations providing free legal assistance to indigent clients in
certain kinds of cases, but denied such funding if the organization made
“an effort to amend or otherwise challenge existing welfare law.”56 The
Court struck down the funding limitation, finding that this restriction
operated as a denial of funding based on the expressed viewpoint of wouldbe recipients.57 The government argued that its funding program was a
program of government speech indistinguishable from the one upheld in
Rust, but the Court found that the program had more in common with the
funding program struck down in Rosenberger:
[T]he salient point is that, like the program in Rosenberger,
[this] program was designed to facilitate private speech, not
to promote a governmental message. . . . The advice from the
attorney to the client and the advocacy by the attorney to the
courts cannot be classified as governmental speech even
under a generous understanding of the concept.58
The Court refused to find that the legal services funding program had
created any kind of forum for private expression,59 but this did not change
the outcome. The funding restriction was not a governmental decision
about what message it wanted to pay others to send on its behalf, but rather
a decision to suppress a disfavored message originating with private
speakers:
[I]n the context of this statute there is no programmatic
message of the kind recognized in Rust and which sufficed
there to allow the Government to specify the advice deemed
necessary for its legitimate objectives. This serves to
distinguish [the statute here] from any of the Title X program
restrictions upheld in Rust . . . .60
Thus, the Court in this line of Speech Clause cases has provided some
54
Id. at 833.
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547–48 (2001).
56
Id. at 536–37.
57
Id. at 547–49.
58
Id. at 542–43.
59
See id. at 544 (“As this suit involves a subsidy, limited forum cases . . . may not be controlling
in a strict sense . . . .”); id. at 542 (“[T]he LSC program differs from the program at issue in
Rosenberger in that its purpose is not to ‘encourage a diversity of views’ . . . .” (quoting Rosenberger,
515 U.S. at 834)).
60
Id. at 548.
55
378
[Vol. 42:365
guidance about how to identify government speech. But the guidance has
not often been explicitly applied in other contexts, such as Establishment
Clause claims, in which the Court needed to distinguish between
government speech and private speech. When members of the local clergy
deliver prayers at public school graduation exercises,61 when a private
nonprofit group donates a Ten Commandments monument to a state which
then displays the monument on the grounds of the state capitol,62 when a
student delivers prayers over a loudspeaker to begin each home game of a
public high school’s football season63—in these and other scenarios
evoking Establishment Clause claims, the Court has been called to decide
whether a particular religious message is government speech or private
speech. For the most part, the Court has not set forth unique rules for
identifying government speech in all Establishment Clause cases, nor has it
often referenced the government speech doctrine emanating from Rust and
the other Speech Clause cases. Instead, the approach has been less unified
and intentional. The Court has addressed the issue using fluctuating
descriptors as it evaluated the unique circumstances of each case: from
time to time the Court has expressed concern over the “degree of school
[or governmental] involvement” in the message,64 the degree of
governmental “endorsement” of the message,65 the degree of governmental
“entanglement” in the message,66 the degree to which the government is
“lending its support to the communication of a religious organization’s
religious message,”67 and/or the degree to which a “reasonable observer”
would attribute the message to the government.68
61
Lee v. Weisman, 505 U.S. 577, 580 (1992).
Van Orden v. Perry, 545 U.S. 677, 682 (2005).
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 (2000).
64
Id. at 305 (quoting Lee, 505 U.S. at 590).
65
See Santa Fe, 530 U.S. at 305, 307–08, 315–16 (analyzing the specific facts of the case and
holding that the school district’s policy involves both perceived and actual endorsement of student
prayer); County of Allegheny v. ACLU, 492 U.S. 573, 592–94 (1989) (citing cases involving
governmental “endorsement” of religion and how the Establishment Clause prohibits government from
appearing to take a position on religious issues).
66
See Santa Fe, 530 U.S. at 305–06 (noting that petitioner school district “attempted to
disentangle itself from the religious messages by developing the two-step student election process”);
Agostini v. Felton, 521 U.S. 203, 232–34 (1997) (examining whether New York City’s Title I program
resulted in an excessive entanglement between church and state).
67
County of Allegheny, 492 U.S. at 601.
68
See, e.g., McCreary County v. ACLU, 545 U.S. 844, 866 (2005) (quoting Capitol Square
Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring in part and
concurring in judgment); Santa Fe, 530 U.S. at 315 (noting that “reasonable observers have reasonable
memories” which will cause observers to note the context in which the policy arose); id. at 308 (finding
that a pregame prayer would “unquestionably” be perceived as “stamped with [the] school’s seal of
approval”); see also County of Allegheny, 492 U.S. at 593–94 (O’Connor, J., concurring) (“The
Establishment Clause, at the very least, prohibits government from appearing to take a position on
questions of religious belief . . . .” (emphasis added) (quoting Lynch v. Donnelly, 465 U.S. 668, 687
(1983))). But see Pinette, 515 U.S. at 765–68 (rejecting the contention that the Establishment Clause is
violated whenever a reasonable observer might mistake private religious speech for the government’s
own speech).
62
63
2009]
379
Nevertheless, in freedom of speech cases, lower courts have accepted
the Rust-inspired government speech doctrine and seem to be aware that
when the government has a message to send, such a message need not be
viewpoint-neutral, and other messages need not receive governmental
support. The difficulty has come in recognizing when the message is the
government’s message. Accepting (and sometimes expanding) the limited
guidance of the Supreme Court regarding the government speech doctrine,
lower courts and commentators have advocated varying approaches for
identifying government speech.
Some of these approaches, which this Article labels “binary
approaches,” more closely track the teaching of the Supreme Court’s
Speech Clause cases by assuming that any particular message must be
either government speech or private speech; they then proceed to classify it
as one or the other. Other approaches, however, find this binary
classification system unnecessarily restrictive and unrealistic; they allow
for a third category of “hybrid” or “mixed” speech—unrecognized thus far
by the Supreme Court—which carries its own unique implications for
judging the powers and duties of government. The binary approaches, in
turn, differ from one another on the question of which factors to consider
in classifying a message as governmental speech.
III. THE BINARY APPROACH USING A SINGLE-FACTOR TEST
Like most federal appellate courts that have addressed the issue, the
Sixth Circuit has adopted a binary approach to classifying speech: a
message may constitute either government speech or private speech, but
not both.69 In one recent case, however, the Sixth Circuit parted ways with
most of these other courts when it held that a message constitutes
government speech whenever “the government determines an overarching
message and retains power to approve every word disseminated at its
behest.”70 While this standard might at first appear to encompass two
distinct factors—whether “the government determines an overarching
message” and whether the government “retains power to approve every
word disseminated at its behest”71—the Sixth Circuit largely ignored the
first of those factors, effectively reducing the test for government speech to
69
When invited to recognize a third category of “mixed speech” in a specialty license plate case,
as the Fourth Circuit had previously done, the Sixth Circuit refused to do so. See ACLU of Tenn. v.
Bredesen, 441 F.3d 370, 376, 380 (6th Cir. 2006).
70
Id. at 375 (citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559–67 (2005)). It is
currently somewhat unclear whether the Sixth Circuit views this test as controlling in every case. See
Grosjean v. Bommarito, 302 F. App’x 430, 436 (6th Cir. 2008) (favorably citing Bredesen’s test, but
noting that “the two factors identified in [the Supreme Court case upon which Bredesen relied] were
not . . . held to be exhaustive,” and suggesting in dicta that another relevant factor might be “whether
the speech is attributed to a particular private actor”).
71
Bredesen, 441 F.3d at 375 (citing Johanns, 544 U.S. at 559–67).
380
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a question of how much power the government had to approve or veto the
wording and design of the message before it was disseminated.
The case before the court, ACLU of Tennessee v. Bredesen,72 involved
specialty license plates.73 The state of Tennessee had authorized its
Department of Safety to issue specialty plates to motorists willing to pay a
surcharge, and the menu of available plates was continually expanding; the
general rules were that the Department could make a new specialty plate
available whenever (1) the legislature authorized the particular plate by
name;74 (2) the state commissioner of revenue approved a design for that
plate submitted by a private sponsor;75 and (3) the state received at least
one thousand advance orders for that plate.76 In routine practice,
apparently, when a private organization desired a specialty plate of its own,
the organization lobbied the state legislature to introduce and pass a bill
authorizing the plate.77 By the time of the litigation, the state legislature
had authorized over one hundred different specialty plates, including a
“Choose Life” plate,78 but had rejected a bill, for which Planned
Parenthood lobbied, that would have authorized a “Pro-Choice” plate.79
Recognizing that the key question in the case was whether the “Choose
Life” message constituted government speech, the Sixth Circuit held that
the recent Supreme Court opinion in Johanns80 had established a new
standard for identifying government speech, and that this standard was
controlling. “Johanns stands for the proposition,” said the court, “that
when the government determines an overarching message and retains
power to approve every word disseminated at its behest, the message must
72
441 F.3d 370 (6th Cir. 2006).
For a brief description of specialty license plates and the legal issues involved, see supra notes
9–17 and accompanying text.
74
In general, each plate was required to be explicitly listed in a state statute, which of course
required that the legislature approve each particular plate; however, the legislature was only approving
them in concept (such as “Choose Life plates,” “NASCAR plates,” “Mothers Against
Methamphetamine (MAMA) plates,” etc.), usually leaving the particular design to be worked out
between the private sponsoring organization and the state commissioner of revenue, who was granted
veto power over the design. See TENN. CODE. ANN. § 55-4-201 (2009) (outlining requirements of
cultural, specialty earmarked, and new specialty earmarked license plates); id. § 55-4-202 (providing
examples of specialty earmarked license plates); id. § 55-4-210 (“The department is authorized to
administratively issue personalized plates to qualified applicants.”); id. §§ 55-4-305 to 307 (providing
legislative authority for “Choose Life plates,” “NASCAR plates,” and “Mothers Against
Menthamphetamine (MAMA) plates”); Bredesen, 441 F.3d at 372 (noting that Tennessee law allows
special logotypes on license plates and that the Tennessee legislature authorized the “Choose Life”
logotype); Bredesen, 354 F. Supp. 2d at 772 (discussing Tennessee law to issue specialty plates).
75
TENN. CODE ANN. § 55-4-201(b)(4) (2009); Bredesen, 354 F. Supp. 2d at 772.
76
TENN. CODE ANN. § 55-4-201(h)(1) (2009); Bredesen, 441 F.3d at 372.
77
See Bredesen, 354 F. Supp. 2d at 773 n.4 (“[P]articipants in the license plate scheme . . . . must
find legislators willing to sponsor a bill.” (quoting Henderson v. Stalder, 265 F. Supp. 2d 699, 717
(E.D. La. 2003))); Bredesen, 441 F.3d at 372 (noting that Planned Parenthood unsuccessfully “lobbied
for an amendment authorizing a ‘Pro-Choice’ specialty license plate”).
78
Bredesen, 441 F.3d at 372, 376.
79
Id. at 372; Bredesen, 354 F. Supp. 2d at 772.
80
See supra notes 44–50 and accompanying text.
73
2009]
381
81
be attributed to the government for First Amendment purposes.” After a
rather conclusory observation that Tennessee had chosen an “overarching
message” in this case because the legislature “spelled out in the statute that
these plates would bear the words ‘Choose Life,’”82 the court spent most of
its time on the latter portion of the Johanns formulation, arguing that the
commissioner’s veto power over plate design meant that the state
“retain[ed] power to approve every word disseminated at its behest.”83
While admitting that motorists’ “voluntary dissemination [of the ‘Choose
Life’ message] itself qualifies as expressive conduct,”84 the court found
that the plates themselves contained only government speech and did not
constitute any sort of government-created forum for private speech.85 The
court offered the following support for this finding: (1) the Supreme Court
once characterized the New Hampshire state motto “‘Live Free or Die’ as
‘the State’s ideological message’” when that motto was embossed on all
New Hampshire license plates;86 (2) Johanns and Rust show that the
government does not necessarily create a speech forum every time it uses
private volunteers (or hired hands) to disseminate a governmental
message;87 and (3) finding a forum in cases like this would “render
unconstitutional a large swath of government actions that nearly everyone
would consider desirable and legitimate,” such as government-produced
“Register and Vote” pins worn by private citizens, or postage stamps that
say “Win the War.”88
The court’s reasons for refusing to find a forum seem weak. In Wooley
v. Maynard,89 the New Hampshire “Live Free or Die” case, “Live Free or
Die” was the state motto, and it was embossed on all standard-issue plates.
No motorists paid extra for them or selected that message over others; in
fact, the state required all noncommercial vehicles to bear that message on
their license plates.90 This message was not one of over one hundred stateallowed options for motorists, as in Bredesen;91 rather, it was not optional
at all. Under such circumstances, it is easy to conclude that the message
“Live Free or Die,” which was, after all, the state motto, was government
speech rather than private speech, and that no speech forum had been
81
Bredesen, 441 F.3d at 375 (citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559–67
(2005)).
82
Id. at 376.
83
Id. at 375.
84
Id. at 377.
85
Id.
86
Id. at 377–78 (quoting Wooley v. Maynard, 430 U.S. 705, 715 (1977)); see Wooley, 430 U.S. at
717 (holding that New Hampshire could not constitutionally prosecute car owners for obscuring the
motto “Live Free or Die” on their license plates).
87
Bredesen, 441 F.3d at 378.
88
Id. at 378–79.
89
430 U.S. 705 (1977).
90
Id. at 707.
91
See Bredesen, 441 F.3d at 376.
382
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created simply by embossing all standard-issue license plates with this
message. But that says very little about whether a message represented in
one design appearing on a long menu of various specialty plate designs—a
message that will never be communicated at all unless a motorist chooses
to pay for it—constitutes private speech, or whether such a specialty plate
program creates a forum of some kind for private speakers. Wooley is
simply inapposite. Moreover, while Johanns and Rust may indeed suggest
that the government can use private parties—even volunteers—to
disseminate a message without creating a forum, Johanns and Rust do not
show that the government’s use of private volunteers precludes a finding
that the government program is a forum—only that the use of volunteers
by itself does not make it so. In other words, and perhaps unsurprisingly,
the volunteer element is not alone determinative of whether a forum has
been created, although every forum will include volunteers conveying
messages. But of course, there are several other elements common to
specialty plate programs, elements not present in the governmental
programs at issue in Johanns, Rust, or Wooley, which might indicate the
presence of a speech forum.92
These considerations suggest serious logical flaws in each of the
court’s first two reasons for refusing to find a forum. One suspects, then,
that the driving force behind the Sixth Circuit’s rejection of forum analysis
may have been its third reason: the fear of a slippery slope. This fear
alone, however, is a rather unsatisfying basis for denying that the
government had established a forum. Moreover, the court’s concerns seem
overblown, since government pins, stamps, and the like do not present
many indicators of a speech forum and could be readily distinguished from
specialty plates on that basis.93
Of course, the Sixth Circuit had to dispose of the forum argument in
order to stand by its prior conclusion that the message “Choose Life”
constituted purely government speech.94 In reaching that prior conclusion,
the court assumed Johanns had changed the law, or at least clarified it,
92
These elements might include, inter alia, the fact that the government widely invites (explicitly
or implicitly) private parties endorsing various unknown messages to apply for governmental
permission to use governmental property in sending those messages, the fact that the government does
not tax anyone or spend its own money to promote any particular message, the fact that the impulse to
communicate each message originates outside the halls of government, and the fact that the messages
actually sent under the program are numerous, varied, and sometimes (at least somewhat)
contradictory. Id. at 381–85 (Martin, J., concurring in part and dissenting in part) (reasoning that the
program allows for a variety of views and is designed to promote private speech rather than to convey a
government message).
93
For example, it seems likely that messages appearing on government pins and stamps—
messages such as “Win the War” and “Register and Vote”—originated with the government, not
private applicants. One also suspects that it was not the government’s historic practice to allow dozens
(or hundreds) of private organizations to emblazon their own unique advertising on the government’s
pins and stamps.
94
2009]
383
95
with respect to all sorts of speech. As understood by the Sixth Circuit,
the Johanns test for government speech, regardless of the content or
context of the message, required a simple determination of whether the
government had (1) “determine[d] an overarching message” and (2)
“retain[ed] power to approve every word disseminated at its behest.”96 But
the Sixth Circuit never seriously applied the first prong. The court found,
without further elaboration, that the first prong was satisfied because
“Tennessee set the overall message and the specific message when it
spelled out in the statute that these plates would bear the words ‘Choose
Life.’”97 Aside from the paucity of the court’s discussion, there are at least
two problems with this analysis under the first prong, suggesting that the
first prong was effectively meaningless as applied.
First, the court inexplicably refused to consider the purpose or message
of the specialty plate program as a whole; instead, it considered only the
message reflected in the short statutory provision authorizing “Choose
Life” plates.98 The “Choose Life” message, reflected in this single statute,
was only one of many messages disseminated by the state’s specialty plate
program.99 In Johanns, the Supreme Court found that the government had
“determine[d] an overarching message”100 only after the Court had
considered the program of which the message was a part—and there was
no indication in those cases that the larger government program involved
numerous messages on varied topics. In Rust, the relevant program was
considered to be “the Title X program,” which was designed “to encourage
family planning” without encouraging abortions;101 the Title X program
funded services and messages consistent with this unitary purpose.102 In
Johanns, the relevant program was a tax-and-spend scheme designed to
“promot[e] the marketing and consumption of ‘beef and beef products,’”103
and some program funds were spent on sending messages consistent with
95
See Bredesen, 441 F.3d at 380 (rejecting the Fourth Circuit’s approach to specialty plates
because, inter alia, “the Fourth Circuit opinions . . . are in tension with the intervening case of Johanns.
Johanns sets forth an authoritative test for determining when speech may be attributed to the
government for First Amendment purposes. [The Fourth Circuit] relied instead on a pre-Johanns fourfactor test . . . .”).
96
See supra note 70 and accompanying text.
97
Bredesen, 441 F.3d at 376.
98
See id. at 375–77 (analyzing the questions about government speech and the existence of a
forum by reference only to the portion of the Tennessee Code authorizing “Choose Life” license plates,
not other statutes authorizing other specialty license plates).
99
See supra notes 74–79 and accompanying text (discussing the numerous types of specialty
plates and how the number of specialty plates was continually expanding).
100
See Bredesen, 441 F.3d at 375 (discussing the Supreme Court’s holding in Johanns).
101
Rust v. Sullivan, 500 U.S. 173, 193 (1991).
102
Id. at 179–80, 192–93.
103
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005) (quoting The Beef Promotion and
Research Act of 1985, Pub. L. No. 99–198, § 2, 99 Stat. 1597, 1598 (1985) (codified as amended at 7
U.S.C. § 2901(b))).
384
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104
this purpose. In Bredesen, however, the “Choose Life” message was not
sent as part of some state program designed to encourage adoptions or
discourage abortions; rather, it was sent as part of a specialty license plate
program—and over one hundred different messages, on various topics,
were sent under the auspices of that program.105 Yet the Sixth Circuit
refused to take account of that program in deciding whether the
government had crafted an “overarching message,” or in defining the
message itself.106 Judging the government’s purpose or message by
reference to the “Choose Life” statute, in isolation, ignores the
governmental program of which that message was a part: it ignores the
governmental actions and operational context which made such statutes
and messages possible.
Second, in finding that the government had “determine[d] an
overarching message” by authorizing “Choose Life” plates, the Sixth
Circuit ignored the true origins of the message, instead resting its finding
of governmental “determin[ation]” on the mere evidence that the state
legislature had passed a statute approving dissemination of a message by
private parties willing to pay.107 This obscures the reality that the message
“Choose Life” originated, not with the state legislature, but with one or
more private sector organizations that lobbied for this particular message
and stood to benefit directly from its dissemination.108 This certainly was
not the case in Rust. And in Johanns, while some associations of beef
producers may have lobbied for the establishment of a pro-beef program in
general terms, the messages themselves were crafted only after the
government had established the program, and those producers’ ties to those
messages were quite indirect.109 Unlike the federal government in Rust and
104
Id. at 553–55.
See supra notes 74–79 and accompanying text (explicating the conditions under which
Tennessee could authorize a new specialty plate).
106
107
ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006).
108
In Tennessee, the “principal direct financial beneficiary of the ‘Choose Life’ license plate
plan” was a nonprofit organization called New Life Resources, Inc., which filed a successful motion to
intervene in the Bredesen case. ACLU of Tenn. v. Bredesen, 354 F. Supp. 2d 770, 772 (M.D. Tenn.
2004). As of late 2009, twenty-one states offered “Choose Life” specialty plates, and all but one of
these states directed funds from the specialty plate purchase to private organizations; in the remaining
state, purchasers of the “Choose Life” plate were allowed an opportunity to contribute to such
organizations at the time of purchase. Guttmacher Institute, State Policies in Brief: “Choose Life”
License Plates (Dec. 1, 2009), available at http://www.guttmacher.org/statecenter/spibs/spib_
CLLP.pdf; see also Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles,
288 F.3d 610, 614 (4th Cir. 2002) (finding that, in a Virginia specialty plate program in which “plates
must be specifically authorized by statute,” the ordinary practice was that “a group or organization that
would like to have a special license plate made available to its members contacts a member of the
General Assembly to request that a bill be introduced which, if enacted, would authorize the issuance
of a special plate”).
109
Most importantly, producers did not receive a monetary payment every time the ads ran, or
every time a consumer chose to display the message “Beef. It’s What’s for Dinner.” Moreover, only a
select few producers—some of whom were chosen by the government—participated in designing the
105
2009]
385
in Johanns, the Tennessee government “determine[d] an overarching
message” of “Choose Life” (among many others) only after that exact
message had already been “determine[d]” and proposed to the government
by one or more private organizations, who hoped to gain the government’s
approval of their fundraising plan.110 Thus, Tennessee’s involvement
could reasonably be characterized as the mere perfunctory approval of a
message presented to the state from the private sector. Arguably, this is
not what the Supreme Court had in mind in Johanns when it characterized
government speech by noting that “from beginning to end [it is] the
message established by the Federal Government.”111
These problems with the Sixth Circuit’s approach suggest that the
court largely ignored the governmental determination of the message, and
allowed the second prong of its Johanns formulation, regarding
governmental veto power over the final wording, to dictate the
classification of this speech as government speech. Thus, the Sixth
Circuit’s method of identifying government speech in Bredesen represents
a binary approach, using what is in essence a single-factor test. The court
determined that there were two possibilities here—the message was either
government speech, or private speech—and then the court considered only
one factor in making the classification: did the government retain power to
approve the final wording of the message?
Indeed, this determinative prong—whether the government “retain[ed]
power to approve every word disseminated at its behest”—did, in isolation,
point in the direction of government speech. Like the federal government
in Johanns, the Tennessee government (or its agents) held veto power to
approve or disapprove the final wording and design of the “Choose Life”
message in advance of dissemination.112 And this factor, in those cases
where it is combined with the sort of pervasive governmental involvement
present in Johanns,113 makes the message look like government speech.
Without that pervasive governmental involvement, however—involvement
which was not present in Bredesen—governmental veto power over the
final wording of a message could simply be evidence of prior restraint or
message; indeed, some producers and producer associations did not like the ads. Johanns v. Livestock
Mktg. Ass’n, 544 U.S. 550, 553–56 (2005). And while many of the ads did say “Funded by America’s
Beef Producers,” no preexisting private entity was explicitly named in the ads, as they are on many
specialty plates. Id. at 555. See, e.g., TENN. CODE ANN. § 55-4-307 (2008) (Mothers Against
Methamphetamine plates); id. § 55-4-311 (Tennessee Performing Arts Center plates).
110
ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006); see supra 74–79 and
accompanying text (noting that by the time of the litigation, the legislature already authorized over 100
specialty plates, one of which was “Choose Life”).
111
Johanns, 544 U.S. at 560–61.
112
See ACLU of Tenn. v. Bredesen, 354 F. Supp. 2d 770, 772 (M.D. Tenn. 2004) (“The plate is
effectively designed by its private sponsor, New Life Resources, Inc., and approved by the State.”).
113
See supra notes 44–50, 103–104, 109, and accompanying text (detailing the extent to which
the government was involved in the messaging of the program).
386
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114
censorship in violation of the Speech Clause.
This is the central problem with identifying government speech solely
by reference to whether the government exercised veto power over the
message. In contexts where the government did not come up with the idea
of reaching an audience with this particular message, and instead merely
came up with the idea of granting licenses for the private originators of
approved messages to express those messages on government property,
any such “approved” message looks most unlike the government speech
present in Rust and Johanns. In fact, the message looks like private
speech, and the licensing scheme like a government-created forum for
speech. Under such circumstances, the additional fact that the government
held veto power over the message’s final wording seems to indicate
censorship of private speech, not editorial control of the government’s own
speech. Surely, evidence that the government exercised editorial control
over a private speaker’s message in advance of dissemination should not,
by itself, convert otherwise private speech into government speech and
convince judges that a forum never existed. This is especially easy to see
if we imagine the Sixth Circuit applying its approach in other speech
contexts, such as speech in city parks or other traditional public forums.
IV. THE BINARY APPROACH USING THE FOUR-PRONGED TEST
Like the Sixth Circuit, most of the other circuits addressing
government speech issues have used a binary approach—that is, they have
assumed that any given message must be either government speech or
private speech—but they do not adopt the Sixth Circuit’s single-pronged
classification test that prioritizes government approval of the final wording.
Instead, most of them have identified government speech by using some
version of a four-pronged test, originally enunciated as such by the Tenth
Circuit.115
A. The Tenth Circuit Formulates the Four-Pronged Test
According to the Tenth Circuit’s formulation, when classifying a
message as either government speech or private speech, the four factors to
be considered are (1) whether the central purpose of the governmental
program facilitating the message is to promote private views; (2) who
exercises editorial control over the content of the message; (3) who is the
114
At least one federal court has reached a similar conclusion. See WV Ass’n of Club Owners &
Fraternal Servs., Inc. v. Musgrave, 512 F. Supp. 2d 424, 436 (S.D.W. Va. 2007) (finding that an
inquiry into the degree of a state’s editorial control “confuses rather than clarifies the analysis” in cases
where the central purpose of the government program at issue was not to disseminate a governmental
message).
115
See Wells v. City & County of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001) (outlining the
four prongs of the test).
2009]
387
literal speaker of the message; and (4) who bears ultimate responsibility for
the content of the message.116 The Tenth Circuit claimed to draw the fourpronged test from principles articulated in an Eighth Circuit opinion
involving donor recognitions aired on National Public Radio and, to a
lesser extent, from principles in a Ninth Circuit opinion involving a public
school teacher’s postings on a school bulletin board.117 The court noted
that the Eighth Circuit had alluded to such considerations in finding that
donor acknowledgements, read on the air by employees of a local public
radio station during the station’s broadcast of National Public Radio’s “All
Things Considered” program, constituted government speech, and that
therefore the station could exclude particular would-be donors and their
messages based on viewpoint.118 And the Ninth Circuit had used
somewhat similar considerations to conclude that where a public school
had created a bulletin board for the purpose of supporting Gay and Lesbian
Awareness Month, postings on that board by faculty or staff members
constituted government speech and need not be viewpoint-neutral or
represent a variety of views on the subject.119
The Tenth Circuit used the four-pronged test to evaluate a city’s
holiday display. In Wells v. City and County of Denver, the city and
county governments erected on the steps of a government building a
display including “a creche, tin soldiers, Christmas trees, . . . an array of
lights, . . . a shed containing Santa Claus and his elves,” and other
decorations,120 all of which were owned and maintained by the
government.121 Importantly, the city had built a large sign, which it erected
as a part of the display, containing the message “Happy Holidays from the
Keep the Lights Foundation and the sponsors that help maintain the lights
at the City and County Building,”122 and then listing six corporate
sponsors.123
A private organization, the Freedom from Religion
Foundation, asked permission to have its own “Winter Solstice” sign
erected within the display, but the government would not agree.124 The
Foundation claimed that the “plain language of the [city’s] sign” indicated
that the display as a whole was speech by the Keep the Lights Foundation
and the other private sponsors, rather than government speech, and that the
Freedom from Religion Foundation should have the right to have its
116
Id.
See Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1011–12 (9th Cir. 2000);
Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093–94 (8th Cir. 2000);
see also Wells, 257 F.3d at 1141 (citing Downs, 228 F.3d at 1011–12).
118
Knights, 203 F.3d at 1087–93.
119
Downs, 228 F.3d at 1005–07, 1011–12.
120
Wells, 257 F.3d at 1137.
121
Id. at 1139.
122
Id. at 1137.
123
Id. at 1140 n.4.
124
Id. at 1137–38.
117
388
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125
message included.
The court, however, applied the four-pronged test
and found that the display, including the sign, constituted government
speech.126
In applying the first prong—asking whether the central purpose of the
governmental program facilitating the message is to promote private
views—the court inexplicably focused on the “purpose of the sign” rather
than the purpose of any possible governmental program, such as the
current year’s display or the “program” of erecting holiday displays.127 In
this case, however, the variation probably did not affect the court’s
conclusion; the court found that the sign’s purpose had nothing to do with
promoting private views, and the display “program” as a whole seems even
less connected to private messages than the sign alone.128 In determining
that the sign was not intended to promote private views or messages, the
court pointed to “the City’s complete control over the sign’s construction,
message, and placement,” along with a government official’s testimony
(which the lower court had credited, despite the sign’s actual wording) that
the sign’s purpose was to express the government’s thanks to the
sponsors.129 As to the second and third prongs, the court found that the
government exercised editorial control over the content of the message and
also was the literal speaker because “the City built, paid for, and erected
the sign.”130 Finally, applying the fourth prong of the test, the court found
that the government bore ultimate responsibility for the content of the
display as well as the sign, since the government had provided security and
a fence for the display and was in fact defending the display in this
litigation.131 The court refused to add to the test a fifth factor suggested by
the dissent—“who the listener believes to be the speaker”—but argued that
even if this were one relevant factor, an informed and reasonable observer
would conclude under all the circumstances that the display was
government speech.132
Since Wells was decided, other circuits have adopted its four-pronged
test in deciding whether to classify a message as government speech.
Several of these cases have involved specialty license plates.
B. The Fourth Circuit Adopts the Four-Pronged Test
The earliest of these specialty license plate cases was a Fourth Circuit
case in which Virginia had approved a specialty plate for the Sons of
125
Id. at 1140.
Id. at 1142–43.
See id. at 1141–42 (discussing the purpose of the sign).
128
Id.
129
Id.
130
Id. at 1142.
131
Id.
132
Id. at 1142–43.
126
127
2009]
389
Confederate Veterans (“SCV”) organization but refused to emboss the
plates with the organization’s logo, which included the Confederate flag.133
Although the state routinely approved logos for other organizations’ plates,
it was apparently unwilling to allow the Confederate flag to appear on
license plates because of the message the flag conveys.134 SCV objected,
claiming viewpoint discrimination in violation of the First Amendment’s
Speech Clause.135 The Fourth Circuit panel unanimously held that the
messages on Virginia’s specialty plates constituted private speech, not
government speech.136 While noting that the four-pronged test might not
“constitute an exhaustive or always-applicable list,” the court applied the
test anyway and found that all four prongs indicated private speech rather
than government speech.137 Under the first prong the court examined the
“‘purpose’ of the special plate program” and found that the purpose was to
generate revenue for the state while allowing “the private expression of
various views.”138 The court found under the second prong that editorial
control over the content of specialty plate messages rested, as a practical
matter, with the private organizations associated with each plate; whatever
legal power the state had to design or control content was rarely if ever
exercised until this case.139 The court discussed the third and fourth prongs
together in a relatively truncated analysis of who is literally speaking on a
specialty plate and who bears ultimate responsibility for those messages.
After confessing that neither prong suggested a clear outcome in the
context of specialty plates,140 the court progressed to the rather
unremarkable observations that while the government owned the plates at
all times, the plates were mounted on private vehicles, and the Supreme
Court had suggested in Wooley v. Maynard that “license plates . . .
implicate private speech interests”; from these observations, the court
concluded that the third and fourth prongs, like the first and second,
133
Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d
610, 613 (4th Cir. 2002).
134
See id. at 623 (“Although the logo restriction itself makes no reference to the Confederate
flag . . . it was the inclusion of the Confederate flag in the SCV’s logo that led to the prohibition against
the use of the logo on the SCV’s special license plate.”); Sons of Confederate Veterans, Inc. v.
Holcomb, 129 F. Supp. 2d 941, 946 (W.D. Va. 2001) (“[T]he motivation behind the Commonwealth’s
ban of logos or emblems was to avoid controversy by preventing Plaintiffs from designing a plate that
displays the Confederate battle flag. Out of hundreds of specialty plates in existence, only that bearing
the Sons’ logo is targeted.”); Corbin, supra note 27, at 621 (“[T]he Virginia legislature probably did not
want the divisive image of the Confederate flag linked to the State.”).
135
Sons of Confederate Veterans, 288 F.3d at 622.
136
Id. at 621.
137
Id. at 619–21.
138
Id. at 619.
139
Id. at 621.
140
Id. (“The ‘literal’ speaker here might be said to be the license plate itself . . . and who bears
‘ultimate responsibility’ for the speech is unclear.”).
390
[Vol. 42:365
141
indicated private speech rather than government speech.
Although the Supreme Court has never adopted the four-pronged test
for identifying government speech, former Justice Sandra Day O’Connor
has very recently applied it in a unanimous opinion she wrote while sitting
by designation on a Fourth Circuit panel, thus demonstrating the Fourth
Circuit’s application of the four-pronged test outside the specialty plate
context.142 Importantly, the court did not recognize the existence of any
third category of “mixed” or “hybrid” speech, but once again assumed a
binary classification scheme, under which speech was either government
speech or private speech.143 In this case, a city council, which traditionally
had begun each of its meetings with an opening prayer offered by a council
member, implemented a policy requiring all such prayers to be
“nondenominational.”144 One of the council members claimed that the new
policy violated several of his First Amendment rights, including freedom
of speech.145 The court rejected this claim, however, on the ground that the
prayers constituted government speech rather than private speech.
Applying the four-pronged test, the court was first required to determine
the purpose of the program in which the speech occurred. The relevant
“program,” according to the court, was not one particular prayer or one
speaker’s prayers, but rather the policy of having council members offer
prayers at council meetings.146 As to that program, the court readily
concluded that the purpose was governmental because the meetings
themselves served a governmental purpose and the prayers were listed on
the agenda as an “official part” of every meeting; moreover, the content of
the prayers usually included calls for the council to be granted wisdom and
guidance as they performed their official duties.147 The court analyzed the
second and third prongs together, concluding that the new policy itself
evidenced that the government exercised “substantial editorial control”
over the prayers and concluding that the government was the literal
141
Id. (citing Wooley v. Maynard, 430 U.S. 705, 717 (1977)). Wooley, of course, did not involve
specialty plates; the case involved a motorist’s claim that a state motto, embossed on all standard-issue
plates, was a form of compelled speech as to those motorists who were required to purchase and
display the plates. See supra notes 89–91 and accompanying text (discussing the Court’s decision in
Wooley).
142
Turner v. City Council of Fredericksburg, 534 F.3d 352, 354 (4th Cir. 2008), cert. denied, 129
S. Ct. 909 (2009).
143
Id. at 354–55. Justice O’Connor’s opinion for the court cited Sons of Confederate Veterans
but ignored Planned Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004). Rose
was an intervening specialty plate case in which a Fourth Circuit panel had applied the four-pronged
test but had suggested, in at least two of the three separate opinions, that the test showed that messages
on specialty plates constitute neither purely government speech nor purely private speech, and thus fit
into a putative third category called “hybrid” speech. Planned Parenthood of S.C., 361 F.3d at 792–93,
800–01. For a discussion of Rose, see infra notes 215–216, 228–248, and accompanying text.
144
Turner, 534 F.3d at 353–54.
145
Id. at 354.
146
Id.
147
Id.
2009]
391
speaker because anyone offering such a prayer was only allowed to speak
“by virtue of his role as a Council member.”148 The most difficult question
to answer, said the court, was the fourth prong question of who bears
ultimate responsibility for the content of the message.149 The court noted
that the council members who offered prayers did “take some personal
responsibility for their [council] prayers.”150 But without pursuing this
analysis further or reaching an explicit conclusion under the fourth prong,
the court concluded that on the whole, “given the focus of the prayers on
government business . . . we agree with the District Court that the prayers
at issue are government speech.”151
C. The Ninth Circuit Adopts the Four-Pronged Test
Quite recently, the Ninth Circuit was called to distinguish government
speech from private speech in the specialty plate context, and it too
assumed a binary approach and applied the four-pronged test.152 As in the
Bredesen case,153 “Choose Life” plates were at issue here; but in this case,
rather than disallowing pro-choice plates, the state of Arizona disallowed
“Choose Life” plates.154 Arizona had not authorized any kind of prochoice plates, either, although no evidence showed that any group had
requested them.155 The state government contended that it denied the
application for “Choose Life” plates because it wished to keep all
messages about abortion and abortion rights off of specialty plates.156 The
government further contended that such a restriction was permissible
because any messages on specialty plates (or any other license plates) were
government speech and, in the alternative, that the restriction was a
reasonable, viewpoint-neutral limitation on the use of the specialty plate
forum.157 Applying the four-pronged test, the Ninth Circuit panel
unanimously found that messages on specialty plates constituted private
148
Id. at 354–55.
Id. at 355.
Id.
151
Id. The court provided additional support for this conclusion by citing Simpson v. Chesterfield
County Board of Supervisors, 404 F.3d 276, 279, 288 (4th Cir. 2005) (holding that similar prayers at
county board meetings, when offered by members of the local clergy selected by the board, constituted
government speech). Curiously, the Simpson case did not mention or apply the four-pronged test
adopted earlier in Sons of Confederate Veterans, nor did it acknowledge the existence of a third,
“hybrid” category of speech, as had been suggested by various opinions in Rose. See supra note 143
(demonstrating that two of the three separate opinions suggested that the four-pronged test showed that
speech on specialty plates was neither purely private nor purely governmental).
152
Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 965–68 (9th Cir. 2008), cert. denied, 129 S. Ct.
56 (2008).
153
See supra notes 69–88 and accompanying text (discussing the Bredesen case, in which the
court found “Choose Life” specialty plates to contain purely government speech).
154
Ariz. Life Coal., 515 F.3d at 960–62.
155
Id. at 961, 971.
156
Id. at 972.
157
Id. at 965, 971.
149
150
392
[Vol. 42:365
158
speech, and then went on to conclude that the state’s exclusion of all
viewpoints about abortion and abortion rights was not a viewpoint-neutral
restriction.159
In applying the first prong of the government speech test, the court
analyzed neither the purpose of all license plates nor the purpose of a
single specialty plate design, but the purpose of the “specialty license plate
program as a whole.”160 The court found the purpose of that program to be
“revenue raising”161 and also “providing a forum in which philanthropic
organizations . . . can exercise their First Amendment rights in the hopes of
raising money to support their cause.”162 On the second prong’s question
of editorial control, the court again found for the private organization,
noting that “the idea of a ‘Choose Life’ license plate originated with Life
Coalition,” who also “determined the substantive content of their
message,” despite the state’s authority to set “guidelines for gaining access
to the license plate forum.”163 Regarding the third prong, the court found
that the evidence, while somewhat conflicting, predominately favored
classifying private parties as the literal speakers, despite the government’s
ownership of the plates; the court drew on Wooley for its primary
support.164 And the court concluded under the fourth prong that private
organizations bore ultimate responsibility for the message, since their
organization’s motto and name would appear on the plates and the program
placed the “burden . . . on the nonprofit organization” to “take the
affirmative step of submitting an application” before any message would
be authorized or communicated.165 Thus each of the prongs, according to
the court, supported a finding of private speech.
D. The Seventh Circuit Joins In—Or Does It?
The Seventh Circuit claimed to have employed the four-pronged test—
albeit in a truncated formulation—in a similar specialty plate case decided
at the end of 2008, in which the state of Illinois disallowed a private
organization’s application for “Choose Life” plates.166 Considering and
then rejecting the Sixth Circuit’s approach in Bredesen,167 the Seventh
Circuit found:
158
Id. at 965–68.
Id. at 972.
Id. at 965 (emphasis omitted).
161
Id. at 966.
162
Id. at 965.
163
Id. at 966.
164
Id. at 967.
165
Id. at 967–68.
166
Choose Life Ill., Inc. v. White, 547 F.3d 853, 855–56 (7th Cir. 2008).
167
Id. at 862–63. For a discussion of Bredesen, see supra Part III (discussing how the Sixth
Circuit held that a message constitutes government speech whenever the government retains the power
to approve every word of the message).
159
160
2009]
393
[T]he approach of the Fourth and Ninth Circuits [is] more
persuasive. Their multi-factor test can be distilled (and
simplified) by focusing on the following inquiry: Under all
the circumstances, would a reasonable person consider the
speaker to be the government or a private party? Factors
bearing on this analysis include, but are not limited to, the
degree to which the message originates with the government,
the degree to which the government exercises editorial
control over the message, and whether the government or a
private party communicates the message.168
In using this test, the court does not seem to have applied the above
factors one by one, so much as generally kept them in mind as it listed a
number of characteristics of the specialty plate program, some of which
indicated government speech and some private speech.169 In the end, the
court determined only that “there are enough elements of private speech
here to rule out the government-speech doctrine.”170
In fact, the very language of the Seventh Circuit’s “test” conceals more
than it reveals. The “approach of the Fourth and Ninth Circuits,” which
the Seventh Circuit purported to adopt, was the four-pronged test; yet the
Seventh Circuit refused explicitly to endorse that test.171 Even more
confusingly, after applying its own formulation—a somewhat open-ended
“reasonable person” attribution test—the Seventh Circuit framed its
conclusion negatively: “[T]here are enough elements of private speech
here to rule out the government-speech doctrine; the messages on Illinois
specialty license plates are not government speech.”172 But what are they?
The court held that “private-speech rights are implicated” by the specialty
plate program, but stopped short of saying whether the messages on
specialty plates constituted private speech, hybrid speech, or something
else entirely.173 Nevertheless, the court went on to employ forum analysis
as if the messages constituted private speech, ultimately deciding that
specialty plates were a nonpublic forum174 and yet upholding the state’s
restriction in this case as a reasonable, viewpoint-neutral subject matter
limitation within that forum.175
168
Choose Life, 547 F.3d at 863.
Id. at 863–64.
Id. at 864.
171
Id. at 863.
172
Id. at 863–64.
173
Id. at 864.
174
Id. at 864–65.
175
Id. at 867.
169
170
394
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E. The Eighth Circuit Applies the Four-Pronged Test to Answer “One Key
Question”
Most recently the Eighth Circuit, which the Tenth Circuit credited with
originating the four-pronged test, has applied the test in deciding its own
specialty plate case involving a state’s refusal to issue “Choose Life”
plates.176 In doing so, however, the court followed the lead of the Seventh
Circuit in characterizing its analysis as a mere inquiry into attribution:
Our analysis boils down to one key question: whether, under
all the circumstances, a reasonable and fully informed
observer would consider the speaker to be the government or
a private party.
Notwithstanding the Sixth Circuit’s
conclusion to the contrary, we now join the Fourth, Seventh
and Ninth Circuits in concluding that a reasonable and fully
informed observer would consider the speaker [of the
message appearing on a specialty plate] to be the
organization that sponsors and the vehicle owner who
displays the specialty license plate.177
But unlike the Seventh Circuit, the Eighth Circuit answered the “one
key question” of attribution by applying, explicitly and in order, the
elements of the four-pronged test.178 Beginning with the first prong, the
court determined that “[t]he primary purpose of Missouri’s specialty plate
program is to allow private organizations to promote their messages and
raise money and to allow private individuals to support those organizations
and their messages.”179 Next, the court applied the second prong in
pointing out that “[u]nder the Missouri statute, both the state and the
sponsoring organization exercise some degree of editorial control over the
messages on specialty plates.”180 Finally, the court applied the third and
fourth prongs: after noting that private organizations submitted “a general
description of the plate” for approval or rejection by a state legislative
committee, and that the plates thus approved were designed by the
organization and produced without further input from the state regarding
content, the court concluded that “the organizations that sponsor the
specialty plates and the vehicle owners who choose to purchase and
display them are the literal speakers who bear the ultimate responsibility
for the message.”181
Then, going beyond the four-pronged test, the court went on to point
176
Roach v. Stouffer, 560 F.3d 860, 871 (8th Cir. 2009); see also Summum v. City of Ogden, 297
F.3d 995, 1004–05 (10th Cir. 2002) (discussing how the Eighth Circuit developed the test in Knights).
177
Roach, 560 F.3d at 867.
178
Id. at 867–68.
179
Id. at 867.
180
Id.
181
Id. at 867–68.
2009]
395
out two other factors that would likewise lead a reasonable observer to
attribute specialty plate messages to private speakers. The first of these
was the sheer number and types of different specialty plates issued by the
state: “With more than 200 specialty plates available to Missouri vehicle
owners, a reasonable observer could not think that the State of Missouri
communicates all of those messages.”182 The second additional factor was
the absence of state compulsion:
While Missouri requires a vehicle to display a license plate,
the State does not compel anyone to purchase a specialty
plate. . . . The sponsoring organization must apply for the
specialty plate, and the vehicle owner must choose to
purchase it. Because the “Choose Life” plate is different
from the standard Missouri license plate, a reasonable
observer would understand that the vehicle owner took the
initiative to purchase the specialty plate and is voluntarily
communicating his or her own message, not the message of
the state.183
In the end, based on the four-factor test and the two additional factors,
the court was convinced that specialty plate messages constituted private
speech. Again departing from the Seventh Circuit’s example, the Eighth
Circuit made this conclusion explicit and unequivocal by stating that “the
messages communicated on specialty plates are private speech, not
government speech.”184 Without determining what type of speech forum
the plates constituted, the court found that Missouri’s specialty plate
program was facially unconstitutional because it allowed state officials to
exercise viewpoint discrimination, which is forbidden in every type of
forum, as they approved or disapproved applications for specialty plates.185
F. Difficulties with the Four-Pronged Test
As the foregoing history demonstrates, recent applications of the fourpronged test raise a few nagging concerns about it, in either its original or
modified formulations. First, some of the prongs seem to be unclear, or at
least susceptible to varying definitions. The first prong of the test—the
central purpose of the program giving rise to the message—provides an
example. Although it did not apply the four-pronged test, the Sixth Circuit
in Bredesen had to consider a factor similar to the first prong as it applied
Johanns, and held that the relevant “program” was the particular statute
182
Id. at 868.
Id.
184
Id.
185
Id. at 868–70 & n.4.
183
396
[Vol. 42:365
186
authorizing “Choose Life” plates; in contrast, the Fourth, Eighth, and
Ninth Circuits, applying the first prong of the four-pronged test, considered
the relevant “program” to be the specialty license plate program;187 and the
state has sometimes urged that the relevant “program” is the set of all
policies regarding license plates.188 The four-pronged test apparently does
not specify which program is the relevant one. Another example of
ambiguity can be found in the third prong of the test, requiring courts to
determine who is the “literal speaker.”189 In some speech contexts the term
“literal speaker” will no doubt have a clear meaning, but in many of the
more troublesome cases, one suspects, it will not. Specialty license plates
provide a perfect illustration of the difficulty. Who is the “literal speaker”
of the message on a specialty plate: the motorist, who installed the plates
and drives the car on which they are displayed; the state, who owns and
prints the plates, who regulates their format, and whose name is
emblazoned across the top; or the nonprofit organization, who likely
designed the plate’s background and whose name, logo, and message are
displayed there? Or is the “literal speaker,” as the Fourth Circuit once
suggested with a hint of frustration, the “license plate itself”?190 The words
“literal speaker” are not self-defining in such contexts and tend to create
more difficulties than they resolve.
A second concern, related to the first, is that some prongs of the fourpronged test seem often to point in multiple directions. The “literal
speaker” prong, as noted above, is flawed in this way. As another
example, consider the fourth prong: the determination of who bears
ultimate responsibility for the content of the message. A number of facts
might reasonably bear on that question of “ultimate responsibility,” facts
which may often point in different directions. If “ultimate responsibility”
is simply a question about attribution by a reasonable or average
viewer/listener, we will want to assign “responsibility” to the entity whose
name is affixed to the message (if any, and only one, is so affixed);191 if,
186
ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375–77 (6th Cir. 2006); see also supra notes 98–
106 and accompanying text (discussing the Sixth Circuit’s refusal to conclude that the specialty plate
program was the relevant program).
187
See Roach, 560 F.3d at 867; Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 965 (9th Cir.
2008); Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d
610, 619 (4th Cir. 2002); supra notes 138, 160, 179, and accompanying text (discussing the cases that
held that the relevant program was the specialty plate program).
188
See, e.g., Ariz. Life Coal., 515 F.3d at 965.
189
Sons of Confederate Veterans, 288 F.3d at 621.
190
Id.
191
See Ariz. Life Coal., 515 F.3d at 967 (finding that Life Coalition bore ultimate responsibility
for the message, “Life Coalition submitted its motto to be placed on a specialty license plate that
would also identify the organization by name”); see also Choose Life Ill., Inc. v. White, 547 F.3d 853,
863 (7th Cir. 2008) (noting that the entire four-pronged test “can be distilled (and simplified) by
focusing on the following inquiry: Under all the circumstances, would a reasonable person consider
the speaker to be the government or a private party?”).
2009]
397
however, this is also a question about who stands to lose financially if the
message falls on deaf ears, that might suggest another entity altogether;192
if it is also a question of who is liable if the message constitutes a tort or
other actionable wrong, that may suggest a third entity;193 if it is also a
question of who paid for the message or provides protection of the
message, that might suggest yet other groups.194
In light of such ambiguities, it is perhaps unsurprising that reasonable
judges can and do disagree on outcomes under the four-pronged test. The
Tenth Circuit, for example, which originated the test in its four-part
formulation,195 has recently divided over how to apply the test in the
context of a Ten Commandments monument donated to a city by a private
nonprofit group and now owned and displayed by the city in a city park.
Shortly after the Tenth Circuit announced the four-pronged test in Wells,196
the court applied the test to such a donated monument and concluded that
the monument constituted private speech.197 This determination was
adopted by the court, without discussion or application of the four-pronged
test, in another case involving a similar monument five years later;198 Judge
McConnell, however, joined by Judge Gorsuch, dissented from a denial of
rehearing en banc in that case, arguing that the Wells four-factor test
showed that such monuments constitute government speech.199
The court’s decision in that case has now been reversed by the
Supreme Court (without any discussion or application of the four-pronged
test),200 but the disagreement among the judges of the Tenth Circuit
illustrates some of the ambiguities inherent in the elements of the fourpronged test. Judge McConnell believed that the second and fourth prongs
indicated government speech because the government “exercised total
‘control’ over the monuments . . . [and] bore ‘ultimate responsibility’ for
192
For example, given the facts of Knights of the Ku Klux Klan v. Curators of the University of
Missouri, 203 F.3d 1085, 1089–90 (8th Cir. 2000), one could argue that NPR’s donors bear “ultimate
responsibility” for the donor acknowledgements that NPR broadcasts, precisely because it is the donor
who stands to win or lose financially based on how favorably the message is received by NPR’s
listeners.
193
See Wells v. City & County of Denver, 257 F.3d 1132, 1142 (10th Cir. 2001) (stating that “this
litigation [in which the City is a named defendant] is itself an indication that the City bears the ultimate
responsibility for the content of the display”).
194
See id. (finding that the City bore “ultimate responsibility” for the message because, inter alia,
it provided “security for the display, including a fence to guard against theft and protect citizens from
possible electrical hazards, . . . video cameras, . . . motion detectors, . . . and a security guard”).
195
See supra notes 115–132 and accompanying text (discussing the four-pronged test).
196
See id.
197
Summum v. City of Ogden, 297 F.3d 995, 1004–06 (10th Cir. 2002).
198
Summum v. Pleasant Grove City, 483 F.3d 1044, 1047 n.2 (10th Cir. 2007), rev’d, 129 S. Ct.
1125 (2009).
199
Summum v. Pleasant Grove City, 499 F.3d 1170, 1175–77 (10th Cir. 2007) (McConnell, J.,
dissenting from denial of rehearing en banc).
200
Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
398
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201
the monuments’ contents and upkeep.” The court had disagreed, holding
that the second prong indicated private speech because “the [private donor
organization] exercised complete control over the content of the
Monument, turning over to the City of Ogden a completed product.”202
And the court thought that while the government might have had “ultimate
responsibility” for the content of the monument after it was donated, the
other three prongs of the test indicated private speech and outweighed the
fourth prong conclusion.203 In particular, the court thought that the first
prong indicated private speech because “the central purpose of the Ten
Commandments monument is to advance the views of the [private donor
organization] rather than those of the City of Ogden.”204 Judge McConnell
did not apply the first prong explicitly, but considering the language of that
prong as quoted in Wells itself,205 one could surely object to the court’s
decision to examine the purpose of the monument rather than the purpose
of the “program”—perhaps the city’s policy about all the monuments
displayed in its parks—which gave rise to the message.206
Finally, Judge McConnell seems to have thought “ownership” of the
“speech”—a factor not expressly listed in the four-pronged test—should be
a determinative factor by itself in cases, like that of the donated monument,
where ownership is not in dispute.207 This approach, however, raises its
own questions. First, is “ownership of the speech” demonstrated merely
by ownership of the medium through which the speech is expressed (here,
the monument and perhaps the park)? If not, what counts as “ownership of
the speech,” such that we can be certain the city owned the speech here?
On the other hand, if ownership of the medium is enough, then Knights, the
Eighth Circuit case that Judge McConnell said represented a more
questionable case of ownership, should have been another easy case of
government ownership of the message (and thus government speech),
because the government owned the radio station used to communicate the
message (and probably the paper upon which the message was written).
And specialty license plates would represent another easy case of
201
Pleasant Grove City, 499 F.3d at 1177 (McConnell, J., dissenting from denial of rehearing en
banc).
202
City of Ogden, 297 F.3d at 1004.
Id. at 1005–06.
204
Id. at 1004.
205
See Wells v. City & County of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001) (“[T]he Eighth
Circuit relied on a number of factors: (1) that ‘the central purpose of the enhanced underwriting
program is not to promote the views of the donors’. . . .” (emphasis added) (quoting Knights of the Ku
Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093–94 (8th Cir. 2000))).
206
See, e.g., Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 965 (9th Cir. 2008) (stating that “we
must address [the] specialty license plate program as a whole”); Sons of Confederate Veterans, Inc. v.
Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 619 (4th Cir. 2002) (considering entire
specialty plate program under first prong analysis).
207
Summum v. Pleasant Grove City, 499 F.3d 1170, 1176 (10th Cir. 2007) (McConnell, J.,
dissenting from denial of rehearing en banc).
203
2009]
399
government speech, simply because the government clearly owns the
plates. These results seem too easy. Second, and more fundamentally,
why should government ownership of the medium, by itself, convert
otherwise private speech into government speech? If a city makes
microphones available for any speakers who wish to speak in the city park,
one would not typically assume that the speech is government speech,
although the government clearly owns the media of communication.208
Even if each of the four prongs were unambiguous by itself, the
disagreement among the Tenth Circuit judges also reminds us that the test
as a whole still leaves room for judicial doubt in the case of a “prong split.”
How many of the factors must point in the same direction before we can
reach a conclusion? Conveniently, and perhaps not entirely by accident,
courts most often seem to find that the prongs all point in the same
direction;209 but if the result under one prong is an outlier, do the other
three always outweigh it?210 What if two prongs indicate government
speech and two indicate private speech—how are we to break the tie?211
These problems with the four-pronged test are largely practical
problems of implementation. But a more fundamental flaw might lie in
what the test actually measures. Indeed, it is not at all clear that the fourpronged test would lead to a finding of government speech even on the
facts of Rust itself,212 which suggests that the test functions rather poorly as
208
See also id. at 1179 (Tacha, J., responding to dissent from denial of rehearing en banc) (“No
one thinks The Great Gatsby is government speech just because a public school provides its students
with the text.”).
209
See, e.g., Ariz. Life Coal., 515 F.3d at 965–68; Sons of Confederate Veterans, 288 F.3d at 619–
21; Wells, 257 F.3d at 1141–42; Knights, 203 F.3d at 1093–94.
210
See, e.g., Summum v. City of Ogden, 297 F.3d 995, 1005 (10th Cir. 2002) (explaining that
when three of the four prongs indicated private speech, the court resolved “[a]ny doubt” by taking
account of “the after-the-fact nature of the [government’s] effort to claim adoption of that speech”);
Turner v. City Council of Fredericksburg, Va., 534 F.3d 352, 355 (4th Cir. 2008) (finding that a
message constituted government speech when three prongs indicated government speech and evidence
under fourth prong was equivocal).
211
Compare Pleasant Grove City, 499 F.3d at 1176–77 (McConnell, J., dissenting from denial of
rehearing en banc) (arguing that the second and fourth prongs, indicating government speech, would be
dispositive by themselves, regardless of the outcome under the first and third prongs), with Planned
Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 793–94 (4th Cir. 2004) (arguing that when the first and
second prongs indicate government speech and third and fourth prongs indicate private speech, a
message constitutes “mixed speech” under four-pronged test).
212
In Rust, federal law prohibited the distribution of certain federal “family planning project[]”
funds to entities that provided abortion counseling or referrals, or which otherwise encouraged
abortion. Rust v. Sullivan, 500 U.S. 173, 178–80 (1991). Under the second prong, the government
surely did not exercise much “editorial control” over any given statement by a doctor or employee of
the recipient clinics; private persons were deciding all the details about what to say, except that they
were not to speak about abortion. Under the third prong, the “literal speaker” was clearly the private
physician or clinic staffer. Under the fourth prong, “ultimate responsibility” for whatever was said
about family planning—in the eyes of the law or in the mind of an average listener—arguably rested
with the clinic rather than the federal government. The majority of the four prongs thus indicate private
speech, not government speech. And the first prong, assessing the “central purpose of the program in
which the speech occurred,” might indicate either governmental or private speech, depending on
400
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an estimation of government speech law.
In a way, the shortcomings of the four-pronged test are not surprising.
In announcing and applying these factors originally, the Eighth Circuit was
focused on evidence that seemed relevant to decide the case before it; the
court does not seem to have considered or intended that these factors
would be used to identify government speech across a range of cases.213
But the Supreme Court has never given a very clear test for identifying
government speech, so when other circuits were subsequently forced to
differentiate government speech from private speech, they latched onto the
Eighth Circuit’s factors, formulated them into a four-pronged test, and
applied that test in a variety of contexts.214 The move is somewhat
understandable; courts obviously prefer to have clear law to apply. But
close inspection of the test shows that it is neither “clear” nor the “law” as
so far announced by the Supreme Court.
V. THE “HYBRID” OR “MIXED” SPEECH APPROACH
Separate from, and perhaps prior to, the question of whether to employ
the four-pronged test is the question of whether to adopt a binary approach
to classifying speech. Most circuits have embraced such an approach,
assuming any given speech is either government speech or private speech.
At least one circuit case, however, suggests that speech might be more
complex, so that in some situations both governmental and private
elements are present and the speech cannot be classified as one or the
other.215 The proposed solution is the recognition of a new category of
blended, “hybrid,” or “mixed” speech, denoting speech that is
simultaneously governmental and private.216 A few commentators, too,
have recently embraced this third category of speech.217 While some who
have adopted this approach favor the four-pronged test for classifying
whether the “program” is defined as the federal grant program or a particular clinic’s program of family
planning services. See supra note 116 and accompanying text (stating the four prongs of the test).
213
See Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093–94
(8th Cir. 2000); supra note 118 and accompanying text; see also Wells, 257 F.3d at 1155 (Briscoe, J.,
dissenting) (“[I]t is not clear whether the court in Knights of KKK was creating a test to be applied in all
government speech cases, or whether it was identifying the factors that evidenced government speech
in that case.”).
214
See supra Parts IV.A.–D. (discussing the formulation of the four-pronged test).
215
See Rose, 361 F.3d at 794.
216
See id. at 794 (Michael, J.) (finding specialty license plates to be “mixed speech” which is
“neither purely government speech nor purely private speech”); id. at 800 (Luttig, J., concurring in
judgment) (finding that “speech can indeed be hybrid in character” because “some speech acts
constitute both private and government speech”); see also id. at 801 (Gregory, J., concurring in
judgment) (finding that “license plate programs . . . ‘really have elements of both private and
government speech’” and that “government speech interests . . . are implicated in the vanity license
plate forum” (quoting Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor
Vehicles, 305 F.3d 241, 252 (4th Cir. 2002) (Gregory, J., dissenting from denial of rehearing en
banc))).
217
See supra note 27.
2009]
218
speech into one of the three categories,
somewhat different set of factors.219
401
others advocate considering a
A. Judges Who Have Advocated the “Hybrid” or “Mixed” Speech
Approach
Among federal judges, perhaps the earliest to suggest something like a
hybrid speech category was Judge Mary Beck Briscoe of the Tenth Circuit,
who asserted as she dissented in Wells that “the holiday display is not
solely government speech, but contains private speech . . . .”220 If she had
in mind a distinct third category of speech, however, Judge Briscoe did not
elaborate on it.
The leader of the judicial charge to recognize explicitly a hybrid
speech category has been Michael Luttig, who was at the time sitting on
the Fourth Circuit. As early as 2002, in considering a request for rehearing
in the Sons of Confederate Veterans case dealing with specialty license
plates,221 Judge Luttig wrote separately to assert that while “to this point,
the Supreme Court has always held that speech is either private or
governmental,” this binary approach was the result of “doctrinal
underdevelopment.”222 Judge Luttig continued:
[A]lthough the doctrine may not have previously recognized
such, speech in fact can be, at once, that of a private
individual and the government . . . I believe that, with time,
intellectual candor actually will force the Court . . . to fully
recognize this fact doctrinally . . . .
I am [also] convinced that our court in turn will, upon
reflection, conclude that at least the particular speech at issue
in this case is neither exclusively that of the private
individual nor exclusively that of the government, but, rather,
hybrid speech of both. Indeed, as I have thought about the
matter, I believe that the speech that appears on the so-called
“special” or “vanity” license plate could prove to be the
quintessential example of speech that is both private and
governmental because the forum and the message are
essentially inseparable . . . .223
Two years later, in the Rose case involving specialty plates, Judge Luttig
218
See, e.g., Rose, 361 F.3d at 792–94.
See, e.g., Corbin, supra note 27, at 627 (discussing the possibility of a five-prong test).
220
Wells v. City & County of Denver, 257 F.3d 1132, 1154 (10th Cir. 2001) (Briscoe, J.,
dissenting).
221
See supra notes 133–39 and accompanying text (discussing Sons of Confederate Veterans).
222
Sons of Confederate Veterans, 305 F.3d at 245 (Luttig, J., respecting denial of rehearing en
banc).
223
Id.
219
402
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continued to defend his conception of hybrid speech—this time bringing
one or two other Fourth Circuit judges along with him—but did not further
explain the contours or implications of the hybrid speech category.224
The significance of recognizing a hybrid speech category depends on
how such a category will be used. What legal standards apply to hybrid
speech? In Sons of Confederate Veterans, Judge Luttig disclaimed any
intent “to foretell those limitations here,”225 but nevertheless opined that
viewpoint discrimination by the government should be forbidden as to
hybrid speech if three factors were present: (1) “the government has
voluntarily opened up for private expression property that the private
individual is actually required by the government to display publicly”; (2)
the private speech component of the hybrid speech is “significant”; and (3)
the government interest is “less than compelling.”226 Believing all three
factors to be present with respect to specialty license plate programs, Judge
Luttig agreed that it was unconstitutional for the state to deny, on the basis
of viewpoint, an organization’s request to include the Confederate flag in
its specialty plate design.227 Subsequently in Rose, Judge Luttig did not
take any further steps in developing a standard to apply to hybrid speech,
instead simply citing his earlier position in Sons of Confederate Veterans
that viewpoint discrimination should be forbidden with respect to the
particular form of hybrid speech appearing on specialty license plates.228
His colleague on the Rose panel, Judge Blane Michael, provided a
fuller discussion. In his own separate opinion, Judge Michael applied the
four-pronged test from Sons of Confederate Veterans, found that the first
two prongs pointed toward government speech and the last two prongs
pointed toward private speech, and concluded from this that the specialty
plate speech was “mixed speech” which was “neither purely government
speech nor purely private speech.”229 Without specifying a test that could
be applied to all such mixed speech, Judge Michael pointed to three
factors, quite different from Judge Luttig’s, which led him to conclude
similarly that viewpoint discrimination would be impermissible with
regard to this particular form of mixed speech: (1) the specialty plates
constituted a limited forum for expression which the state had created; (2)
the government had favored itself as a speaker within that forum; and (3)
the state’s one-sided advocacy might not be apparent to average viewers of
224
225
See supra note 216.
Sons of Confederate Veterans, 305 F.3d at 247 (Luttig, J., respecting denial of rehearing en
banc).
226
Id.
Id.
Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 800–01 (4th Cir. 2004) (Luttig, J.,
concurring in judgment).
229
Id. at 793–94 (Michael, J.).
227
228
2009]
403
230
the plates.
Judge Michael’s opinion raises some troubling questions. First, while
proceeding on the assumption that the four-pronged test is legally binding,
Judge Michael used the test to reach a “mixed speech” conclusion that was
never recognized as a possibility in the precedents which had created the
test.231 Along the same lines, the opinion gives no indication of what
showing is necessary under the four-pronged test to qualify particular
speech as “mixed.” In this case, two prongs were said to point in one
direction and two in the other;232 but is this necessary, or sufficient, for a
finding of “mixed speech”? Was the decisive factor which particular
prongs pointed in a single direction, or the fact that two did, or the fact that
not all did? The opinion leaves all of this unclear.
More important, perhaps, are the particular standards Judge Michael
applied to mixed speech in concluding that viewpoint discrimination was
forbidden. First, there is the finding of a forum: he noted that the
government’s restriction of this mixed speech was suspicious because the
government, in creating a specialty plate program, had created a limited
forum for expression.233 But by definition, one might assume, a speech
forum is a place that contains some purely private speech.234 If the only
messages in the “forum” are mixed speech containing some governmental
component, that in itself might well be proof that no forum exists—at least
not of the sort known to precedent. Judge Michael’s finding of a forum
was based primarily, if not exclusively, on the fact that those carrying the
mixed speech on their cars were volunteers who were not “enlist[ed]” by
the state, as were the doctors in Rust.235 But then why was their speech in
the specialty plate “forum” not purely private speech? Putting aside the
question whether the actual message-bearers in Rust (the doctors)236 or in
Johanns (the media outlets)237 were any less “volunteers” than the
motorists in Rose, one wonders how the finding that the motorists were
volunteers can be held to indicate that the government intentionally created
a forum for speech, but not to indicate the presence of any purely private
speech. Can there be such a thing as a “mixed speech forum,” a forum
230
Id. at 795–96 (Michael, J.).
These precedents are Knights of Ku Klux Klan v. Curators of University of Missouri, 203 F.3d
1085 (8th Cir. 2000), Wells v. City & County of Denver, 257 F.3d 1132 (10th Cir. 2001), and Sons of
Confederate Veterans, Inc. v. Commissioner of the Virginia Department of Motor Vehicles, 288 F.3d
610 (4th Cir. 2002). See supra notes 117–43 and accompanying text.
232
Rose, 361 F.3d at 793–94.
233
234
See, e.g., U.S. v. Am. Library Ass’n, 539 U.S. 194, 204–06 (2003) (plurality opinion); Int’l
Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678–83 (1992); Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802–06 (1985) (noting the presence of purely private
speech in a variety of speech forums).
235
Rose, 361 F.3d at 798 (Michael, J.).
236
Rust v. Sullivan, 500 U.S. 173, 179–81 (1991).
237
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 554–55 (2005).
231
404
[Vol. 42:365
containing only mixtures of governmental and private speech? If all the
speech includes some governmental component, in what sense is there a
public forum—or a forum of any kind?238
Second, there is the focus on attribution: Judge Michael claimed that
in a mixed speech context, when a state has “favored itself”239 as a
“privileged speaker” within a limited forum (in this case, by authorizing a
plate that promotes the government’s view and refusing to authorize a plate
promoting a competing view)240 and average viewers do not readily
attribute the one-sided message to the state, viewpoint discrimination is
forbidden.241 Since viewpoint discrimination would presumably be
inherent in the governmental component of any mixed speech, this boils
down to the assertion that a government crafting messages for mixed
speech in a forum must clearly identify itself as a speaker. This command,
however, seems contrary to Supreme Court precedent, as it would elevate
attribution to the status of a determinative factor in certain situations.
The Supreme Court, by contrast, has not focused on attribution as a
key factor in identifying government speech or in determining whether
viewpoint discrimination is permissible—in fact, quite the opposite. No
doubt viewpoint discrimination would be less likely if the average listener
would be readily able to link the speech to the government; but the
Supreme Court has pointedly allowed viewpoint discrimination even where
the public does not attribute the message to the government, noting that
“the correct focus is not on whether the ads’ audience realizes the
government is speaking, but on the [government program’s] purported
interference with respondents’ First Amendment rights.”242 True, the
Court in that case had found the presence of pure government speech.243
But under Judge Michael’s analysis, the speech there might well have
qualified as mixed speech instead: the government had funded pro-beef ads
that were designed by a combination of governmental and private actors;
the ads were conveyed through private media outlets as literal speakers;
and the ads often carried a statement announcing that they were “Funded
by America’s Beef Producers,” making no mention of governmental
involvement.244 On any reasonable understanding, the government was
speaking covertly and the ads were not viewpoint-neutral; yet the Court
upheld the arrangement as government speech, rather than striking it down
238
Cf. Am. Library Ass’n, 539 U.S. at 206 (finding that neither a public library nor the internet
terminals it provided constituted a public forum because such a library “provides Internet access, not to
‘encourage a diversity of views from private speakers,’” but for other reasons (quoting Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 834 (1995))).
239
Rose, 361 F.3d at 795.
240
Id. at 798.
241
Id. at 795–96, 799.
242
Johanns, 544 U.S. at 564 n.7.
243
Id. at 563–64.
244
Id. at 553–55, 560–61.
2009]
405
245
as forbidden viewpoint discrimination regarding mixed speech.
Judge Luttig’s approach is also problematic, though for different
reasons. His proposal for limiting government control of “hybrid” speech
was tailored to situations in which “the government has voluntarily opened
up for private expression property that the private individual is actually
required by the government to display publicly.”246 In such situations—
assuming the private speech component of the hybrid speech was
“significant”—he would only allow viewpoint discrimination if the
government had a “compelling” interest.247 It is difficult to imagine what
speech would be governed by this rule aside from specialty or vanity
license plates.248 What other government property is legally required to be
displayed by private citizens and also serves as a government-designated
forum for their speech? In fact, one might well argue that even vanity and
specialty plates do not constitute property that any private individual is
required to display publicly; although vehicle owners are required to
display a license plate of some kind, no owner is required to display a
vanity or specialty plate, containing some element of her own speech.249
At best, then, Judge Luttig’s prescription seems to provide guidance for
how to treat hybrid speech only in the narrow context of specialty plates,
and hinges the permissibility of viewpoint discrimination on the somewhat
arbitrary standard of a compelling governmental interest; at worst, it
provides no guidance even in the context of specialty plates.
B. Professor Corbin’s “Mixed Speech” Approach
Some commentators have likewise embraced the hybrid or mixed
category for speech.250 Providing the most extended defense of this
approach, Caroline Mala Corbin has recently proposed the recognition of a
“mixed speech” category, setting forth a five-factor test for classifying
speech as governmental, private, or mixed: “(1) Who is the literal speaker?
(2) Who controls the message? (3) Who pays for the message? (4) What is
the context of the speech (particularly the speech goals of the program in
which the speech appears)? (5) To whom would a reasonable person
attribute the speech?”251 As Professor Corbin conceives this test, there is
245
Id. at 560–67.
Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles, 305 F.3d
241, 247 (4th Cir. 2002) (Luttig, J., respecting denial of rehearing en banc); see supra note 226 and
accompanying text.
247
Id.
248
Indeed, Judge Luttig disclaimed any intention of fashioning a broad rule for all hybrid speech.
See Sons of Confederate Veterans, 305 F.3d at 246–47.
249
See Roach v. Stouffer, 560 F.3d 860, 868 (8th Cir. 2009) (“[W]e note that the messages
communicated through specialty plates are voluntary, not compulsory. While Missouri requires a
vehicle to display a license plate, the State does not compel anyone to purchase a specialty plate.”).
250
See supra note 27.
251
Corbin, supra note 27, at 627.
246
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no worry regarding indeterminate factors or a division of conclusions
among factors, for “unless all factors point exclusively to private speech or
exclusively to government speech, the speech is mixed.”252 Applying this
test to specialty license plates, Professor Corbin (perhaps unsurprisingly)
finds the plates to be mixed speech, “fall[ing] squarely in the middle of the
private/government speech spectrum.”253 The literal speaker, she finds, is
“both the government and the private car owner”;254 control over the
message is exercised to a “substantial degree[]” by “both the government
and the individual car owner”;255 funding for the speech rests primarily
with private speakers, “though the government plays a funding role as
well”;256 the speech goals of the program are “inconclusive and difficult to
evaluate,”257 as “is often the case for both government-subsidized speech
and speech in a nonpublic forum”;258 and finally, “[a] reasonable person is
unlikely to attribute the message . . . solely to private speakers or solely to
the government.”259 In short, four of the five factors lead to inconclusive
results, failing to indicate that either the government or a private entity was
speaking alone, and the other factor shows that private speech elements
predominate over admittedly present governmental speech elements.
One suspects this sort of result will not be unusual in applications of
Professor Corbin’s five-pronged test. For example, she asserts that
“religious speech in private schools, such as prayers led by parochial
school teachers, becomes mixed speech when the schools accept
government vouchers.”260 The Supreme Court, of course, has held that
such speech is not attributable to the government in any way, because the
government’s money was distributed to private individuals who then
voluntarily chose to give it to a religious school rather than a secular
one.261 What of religious universities that accept federal grant and loan
funds, such as Pell Grants—does all speech in religious universities (even
speech by the students) become mixed speech because the universities
accept government funds that effectively enable the speech? The beef ads
in Johanns, characterized by the Supreme Court as government speech,
would apparently become mixed speech,262 as would all government252
Id. at 628.
Id. at 640.
254
Id.
255
Id. at 641.
256
Id. at 642.
257
Id. at 643.
258
Id. at 643 n.199.
259
Id. at 646.
260
Id. at 624.
261
See Zelman v. Simmons-Harris, 536 U.S. 639, 652–53 (2002).
262
The beef ads were funded by a federal government program to encourage beef consumption
and were communicated to the public through private media outlets. The government was seemingly
not the “literal speaker” (prong one) and would not be associated with the speech in the public mind
(prong five), but funded the speech (prong three) and exercised significant control over it (prong two).
253
2009]
407
subsidized “private” speech, including the student publications at issue in
Rosenberger.263 Federal and state tax exemptions presumably help to “pay
for” speech in churches too—does all speech from the pulpit become
mixed speech because of prong three?
Other prongs in the five-prong formulation appear to be almost
guaranteed to produce equivocal results (and therefore result in an overall
finding of mixed speech): the first prong, for example, requires judges to
determine the identity of the “literal speaker,” a term which is all too
unclear in many speech applications.264 Prong four, analyzing the speech
goals of the program in which the speech appears, includes the nebulous
terms “program”265 and “speech goals.”266 By the terms of the test, of
course, the inability to reach a clear result under any single prong requires
a finding of mixed speech.267 Thus, Professor Corbin’s approach means at
least this: much speech that courts have previously determined to be
“private” or “governmental” would now be treated as “mixed.”
Professor Corbin admits that her definition of mixed speech “cuts a
wide swath and [would] significantly change First Amendment
jurisprudence.”268 Effectively, however, the change would only be as
drastic as her prescription for what to do with mixed speech once it has
been classified. Along these lines, she proposes applying “some
intermediate level of scrutiny to measures that constitute viewpoint
discrimination on mixed speech.”269 Her test would allow the government
to impose such restrictions only if “(1) it has a closely tailored, substantial
interest that is clearly and publicly articulated; (2) it has no alternate means
of accomplishing the same goal; and (3) private speakers have alternate
means of communicating to the same audience.”270 Applying this
“rigorous intermediate scrutiny”271 to specialty license plates, she
concludes that most types of viewpoint restrictions would not pass the test,
See supra notes 44–50 and accompanying text (providing relevant factual references for Johanns v.
Livestock Marketing Association, 544 U.S. 550 (2005)).
263
See Corbin, supra note 27, at 690 n.474 (“The Rosenberger Court’s characterization of the
student publication as purely private speech is itself debatable.”). For a brief discussion of
Rosenberger, see supra notes 51–54 and accompanying text.
264
See supra note 189 and accompanying text. Professor Corbin, in fact, cautions those applying
this prong to be aware that some anonymous speech is hard to trace to any literal speaker, and some
ostensibly literal speakers may in fact be working as agents for someone else—in which case,
presumably, the literal speaker analysis may change. Corbin, supra note 27, at 629–30.
265
For the difficulties inherent in defining the relevant “program,” see supra notes 186–88 and
accompanying text.
266
Professor Corbin notes that for “government-subsidized speech” as well as any “speech in a
nonpublic forum,” the results under this prong will “often” be “inconclusive and difficult to
evaluate”—which means the speech must be classified as mixed. Corbin, supra note 27, at 643 n.199.
267
Id. at 628.
268
Id.
269
Id. at 675.
270
Id.
271
Id.
408
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but regulations prohibiting hate speech and religious endorsements
would;272 she also suggests that prohibitions on certain other “distasteful”
speech, such as “sexually provocative messages,” might pass the test,
although she does not explicitly apply intermediate scrutiny to those
restrictions.273 In any event, she avers, much of the benefit of intermediate
scrutiny would be to force judges to do explicitly what she believes they
already do implicitly; applying intermediate scrutiny to a wide range of
mixed speech “renders transparent the inevitable balancing [of
governmental and private interests] that courts perform.”274
Applying intermediate scrutiny to such a large class of speech
restrictions, however, is problematic. First, the many forms of speech that
would be swept into this mixed speech category differ from one another in
important ways. There are important differences, for example, between a
federal grant program funding beef ads that is designed to promote beef
consumption,275 on the one hand, and a public university program funding
student pamphlets that is designed to foster the expression of diverse
student views on campus,276 on the other. The former program is a part of
a class of programs in which government has determined to reach an
audience with a particular message and has paid private parties to carry
that message;277 the latter program is a part of a very different class of
programs in which the government has determined to provide resources for
private parties to create and convey their own messages.278 These
differences might be important enough to justify categorical deference to
the government’s viewpoint restrictions within the former type of program
and categorical suspicion of such restrictions within the latter type.279
Second, it is not self-evident that the traditional categorical treatment
272
Id. at 681–91.
Id. at 687–89.
274
Id. at 691.
275
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553–55 (2005).
276
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 823–27 (1995).
277
Johanns, 544 U.S. at 560–61.
278
Rosenberger, 515 U.S. at 828–29.
279
Indeed, this has been the Supreme Court’s approach to date, as it has applied the government
speech doctrine and forum doctrine, respectively, to these cases. See, e.g., Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 541–42 (2001) (contrasting the application of government speech doctrine in
Rust with the application of forum doctrine in Rosenberger). And even Professor Corbin does not
advocate abandoning the private speech and government speech categories entirely. See Corbin, supra
note 27, at 671, 692 n.480 (noting that “where the private or government components are sufficiently
attenuated, courts may fairly categorize the speech as purely private or purely governmental”). This is
curious if, as she asserts, those categories simply allow judges to mask a secret ad hoc decision process.
See id. at 677–78 (stating that “categorizing mixed speech as private or governmental” is problematic
because it allows judges to “make a value-informed decision” to label the speech without articulating
how they are balancing the competing interests). In other words, if it is so important for judges to
balance explicitly the competing interests in mixed speech cases, why should they not do so in all
speech cases? Why not subject all speech restrictions to intermediate scrutiny? Might the judgment in
a particular case that “private or government components are sufficiently attenuated” itself be masking
a behind-the-scenes, value-informed balancing process that is never articulated?
273
2009]
409
simply masks ad hoc judicial balancing that already goes on behind the
scenes—or that if it does, imposing intermediate scrutiny on restrictions of
mixed speech will cause judging to be more forthright or consistent. In an
effort to force judges to show their cards in mixed speech cases, Professor
Corbin would require them to consider explicitly whether a given
restriction is supported by a “substantial” governmental interest and
whether the government could accomplish the same goal by other
means.280 But her evaluation of specialty license plates under this test
provides a perfect illustration of the possibility of continued subterfuge. It
turns out that, in her view, government reasons for banning particular plate
designs are not “substantial” enough unless the designs would endorse
religion (such as, perhaps, a “God Bless America” plate) or convey hate
speech (such as a Nazi plate). Which governmental interests are
prioritized, and which devalued, in reaching such conclusions?281 The
ranking of governmental interests in such an analysis is necessarily tied to
a behind-the-scenes ranking of the harmfulness of particular viewpoints.
Some viewpoints, apparently, are deemed more harmful than others,
making the state interest in restriction (or disassociation) more
“substantial” for some messages than for others. On what basis would a
judge rank various viewpoints according to harmfulness? And would any
judge articulate such a ranking? It seems fanciful to expect that
intermediate scrutiny will force judges to do so; moreover, a ranking of
this sort by a judge or other government official runs directly contrary to
the First Amendment value of viewpoint neutrality toward speech.
C. Difficulties With the “Hybrid” or “Mixed” Speech Approach More
Generally
The “hybrid” or “mixed” speech approach is intuitively appealing
because it recognizes the overlap at the margins between the conceptual
categories of government speech and private speech. By forcing all speech
into one of these two categories, we are bound to generalize and, in the
process, ignore some key differences.
But the hybrid speech category does this, too. In fact, it is the function
280
Corbin, supra note 27, at 675–76 (using the case of specialty license plates to illustrate the
application of the “intermediate scrutiny” test and the resulting advantages of its application in the
courtroom).
281
Regarding the hypothetical rejection of “God Bless America” plates, the state’s interest in
complying with the Establishment Clause probably cannot count as a “substantial” interest, since the
Court has suggested that such governmental endorsements of “God” do not violate the clause. See Van
Orden v. Perry, 545 U.S. 677, 686–92 (2005) (holding that the placement of a monument inscribed
with the Ten Commandments is not a violation of the Establishment Clause); County of Allegheny v.
ACLU, 492 U.S. 573, 602–03, 657, 671–74 (1989) (Kennedy, J., concurring in part and dissenting in
part) (joined by Rehnquist, C.J., and White & Scalia, JJ.) (cautioning against placing too much weight
on a few religious words that have been used throughout the United States’ heritage). Indeed, our
national motto is “In God We Trust.” 36 U.S.C. § 302 (2000).
410
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of jurisprudential categories to generalize, and the fact that two (or even
three) categories do so is not in itself a reason to create a third (or fourth),
particularly if the newly minted category does not give judges much
guidance for deciding who wins when speech falls within that category.
Moreover, there is value, confirmed by long experience, in setting up a
presumption against viewpoint restrictions directed against the messages of
private speakers. But to apply that presumption effectively, we must
distinguish between the messages of private speakers and the messages of
public speakers. Arguably, the mixed speech category is not a serious
attempt to do that; it looks more like giving up.
A broad “mixed” or “hybrid” speech category may even allow
government to game the system by actually creating one of the mixedspeech factors in order to convert private speech into mixed speech, thus
forcing increased judicial deference to viewpoint restrictions. For instance,
when the government wants to oppose a private point of view, it could
simply give itself prior approval authority over private speech in some
venue and thus claim that the speech is mixed speech because, under prong
two, the government exerts substantial “control” over the message. In that
case, the restriction itself is being used as evidence that the message is
partially the government’s and that the government therefore has a greater
interest in imposing the restriction. This is circular.
It is not impossible to conceptualize the two-category approach. A
government may deny resources to a few disfavored speakers—and even
forge alliances with competing speakers—without really intending to send
any message of its own. Judges need not sense some element of
“government speech” in such arrangements or shield such viewpointbiased discrimination from normal free speech scrutiny. The danger that
government will use discriminatory allocations of its property to silence a
certain viewpoint or skew debate is no less real when some of the private
competing viewpoints (predictably enough) conspire with the government
to accomplish this result, or at least to advance their own preferred
messages.
VI. AN ALTERNATIVE APPROACH: THREE KINDS
OF GOVERNMENT SPEECH
Assuming we wish to continue allowing the government to send its
own messages, it is plainly necessary for judges to be able to identify
government speech across a wide range of Speech Clause cases.
Additionally, to the extent government may violate the Establishment
Clause with its own expression, judges need to be able to identify
2009]
411
282
government speech in that context as well. It seems desirable to use one
uniform test for identifying government speech in all contexts, since there
is no obvious reason to define the term differently in Speech Clause and
Establishment Clause cases. As noted in Parts IV and V, neither the fourpronged test nor the hybrid speech approach shows much promise of
helping judges make more uniform or objective decisions, nor do these
approaches track closely the jurisprudence of the Supreme Court in the
area of government speech.
This section suggests a simpler approach to identifying government
speech, a test which explains and reconciles the holdings of the Supreme
Court across the gamut of its speech and establishment cases.
Additionally, this section argues that this simpler test offers a more
accurate measurement of what matters in the definition of government
speech and, because it is less subjective than the alternatives, is likely to
result in more judicial consistency as well.
The Supreme Court has found government speech to be present in
perhaps three key circumstances. Accordingly, the proposed test would
pose three questions:
(1) Did the government independently generate the idea of
reaching an audience with this particular message in this
medium?
(2) Was the message expressed in a medium or format
effectively owned and controlled by government and clearly
reserved for the purpose of expressing only those messages
the government regards as its own, never opened to multiple
private speakers for the purpose of raising revenue or
supporting their speech or welfare?
(3) Is there a clear literal speaker who is employed by the
government to send messages on this subject in this format?
If any of the above questions must clearly be answered in the
affirmative, then the message is government speech; otherwise, the
message is private speech. The remainder of this section explains each of
these three circumstances in more detail.
A. Did the Government Independently Generate the Idea of Reaching an
Audience with This Particular Message in This Medium?
A central concept in the whole notion of government speech is the idea
282
See infra notes 381–88 and accompanying text (discussing Establishment Clause violations
caused by certain kinds of government speech).
412
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283
that government should be free to express its own messages.
But how
do we know whether the message is really “its own message” or, instead,
that of a private party? This first factor focuses on the most obvious
meaning of “its own message”: that the government came up with the
message in the first place, or at least embraced it enough to generate the
idea of communicating it to an audience in this medium.
In Rust v. Sullivan—the case which, according to the Supreme Court,
contained the first exposition of the government speech doctrine—
Congress came up with the idea of reaching an audience (the clients of
family planning clinics) with a particular message (encouraging family
planning without abortion) through the “medium” of the advice rendered
by physicians and staff working in the clinics.284 The Court clearly
believed all of this was Congress’s idea, a finding which was crucial in
classifying the message as government speech: “The Government can,
without violating the Constitution, selectively fund a program to encourage
certain activities it believes to be in the public interest, without at the same
time funding an alternative program which seeks to deal with the problem
in another way.”285 The Court later described the Rust opinion as showing
that the government can “use[] private speakers to transmit specific
information pertaining to its own program” and “to promote a particular
policy of its own.”286 Similarly in Johanns, the Court’s conclusion that the
beef ads constituted government speech was anchored in the finding that
“[t]he message set out in the beef promotions is from beginning to end the
message established by the Federal Government.”287 The fact that the
literal speakers were private entities, and the fact that some private actors
exercised some editorial control in the creation of the ads, were factors of
secondary importance, at most: “When, as here, the government sets the
overall message to be communicated and approves every word that is
disseminated, it is not precluded from relying on the government-speech
doctrine merely because it solicits assistance from nongovernmental
sources in developing specific messages.”288 The fact that the government
“sets the overall message” is surely crucial to a finding of government
speech.
Just as certainly in other cases, the fact that the government did not
“set the overall message” was an important factor in the Court’s
determination that the message constituted private speech. Hence, in
283
See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (“[W]e have
permitted the government to regulate the content of what is or is not expressed when it is the speaker or
when it enlists private entities to convey its own message.”).
284
Rust v. Sullivan, 500 U.S. 173, 178–81, 193–94 (1991).
285
Id. at 193.
286
Rosenberger, 515 U.S. at 833 (emphasis added).
287
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 560–61 (2005) (emphasis added).
288
Id. at 562 (emphasis added).
2009]
413
Rosenberger, the Court found viewpoint restrictions on university-funded
student speech to be improper because the government had not crafted or
“favor[ed]” any particular message but instead had “expend[ed] funds to
encourage a diversity of views from private speakers.”289 Similarly, in
Southworth, although the university made no claim that the statesubsidized student extracurricular speech was government speech, the
Court recognized that viewpoint discrimination might be permissible if
“the state-controlled University’s . . . own funds [were being used] to
advance a particular message.”290 And in Velazquez, while recognizing
that the federal funding program for legal services attorneys was not
designed with the purpose of “encourag[ing] a diversity of views,” the
Court emphasized that viewpoint discrimination was improper because the
program was not designed “to promote a governmental message.”291 The
attorneys receiving this governmental funding would in fact be
representing clients in claims against the government; therefore, the
government could not have intended these attorneys to convey a particular
message set by the government, “even under a generous understanding of
the concept [of governmental speech].”292
Governments might conceivably “set the overall message” either by
crafting the message themselves or by adopting a message or slogan
originally developed by others. In this latter case, however, it is important
to be sure that the government has in some meaningful sense originated the
communication, rather than just selectively subsidizing private
communication, a move that would skew private debate and perhaps run
afoul of existing forum doctrine.293 The origination question attends to this
concern by asking whether it was the government’s idea to use this
medium to reach an audience with the particular message being sent. For
example, if the government wants to embrace the privately originated
slogan “Just Do It” as part of a government program to encourage fitness,
the fact that Nike originally crafted the slogan should not prevent a finding
of government speech when the government pays for the development and
broadcast of television ads containing the slogan. Assuming Nike and the
government reached an agreement as to the government’s use of the
slogan, the crucial factor to consider is whether the government
intentionally embraced the slogan and originated the idea of running these
television ads containing it. If so, then those ads constitute government
289
290
Rosenberger, 515 U.S. at 834.
Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000) (emphasis
added).
291
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542 (2001).
Id. at 542–43.
293
292
414
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294
speech.
On the other hand, this kind of government speech will not include the
types of messages that the Supreme Court has held to be private speech in
a government forum. For example, a message expressed by demonstrators
in city streets and parks will not be deemed government speech under
question one because it was the private speakers’ idea, not the
government’s, to reach an audience with this particular message.295 The
government’s idea was not to send an “overall message,” but rather to open
up public property for the expression of various yet-to-be-determined
private messages. Likewise, the messages expressed in student group
publications on public university campuses will not constitute government
speech under question one, because it was not the school’s idea to reach an
audience with the particular messages contained in the publications.296 If
these messages do not count as government speech under the other two
questions either, then the messages would be private speech, and it follows
that governmental viewpoint discrimination in such contexts would be
impermissible.297 By the same token, messages endorsing religion in such
forums would raise no Establishment Clause concerns because there would
be no state action embracing the particular message; the governmental role
was limited to opening up government resources to private speakers on a
viewpoint-neutral and religion-neutral basis.298
294
Of course, other ads featuring the slogan “Just Do It” would not be government speech, to the
extent that Nike and not the government came up with the idea of reaching an audience with those
particular ads.
295
See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 757–60 (1995)
(holding that the placement of unattended holiday displays in a state-owned plaza known for public
events was protected private speech); Hague v. CIO, 307 U.S. 496, 515–16 (1939) (“Wherever the title
of streets and parks may rest, they have immemorially been held in trust for the use of the public
and . . . have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.”).
296
See Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000) (holding
that the government’s rights were not at issue because the expression sprang “from the initiative of the
students, who alone give it purpose and content,” and not the state-controlled university); Rosenberger
v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833–35 (1995) (noting a difference between
permissible government regulation of state university speech and impermissible viewpoint
discrimination against private student speech, even when it receives university funding).
297
See Rosenberger, 515 U.S. at 828–30, 834 (reviewing cases in which the Court struck down
viewpoint discrimination against private speech); Capitol Square, 515 U.S. at 761 (holding that while
the state may regulate the “time, place, and manner” of private speech in public forums, it is sharply
restricted in regulating “content”); see also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 678–79 (1992) (noting that governmental discrimination based on viewpoint is forbidden in all
speech forums).
298
See Rosenberger, 515 U.S. at 839–42 (noting the acceptability of state university funding
directed to a student religious publication when the university funded all student journals); Capitol
Square, 515 U.S. at 762–63 (reiterating the maxim that private religious speech in a public forum does
not equal the government endorsement of religion).
2009]
415
B. Was the Message Expressed in a Medium or Format Effectively Owned
and Controlled by Government and Clearly Reserved for the Purpose
of Expressing Only Those Messages the Government Regards as Its
Own, Never Opened to Multiple Private Speakers for the Purpose of
Raising Revenue or Supporting Their Speech or Welfare?
While the first question of the three-question test will likely be
sufficient to identify the majority of government speech, a relatively small
amount of what the Court has considered government speech does not arise
in that way. In fact, in an opinion just issued in Pleasant Grove City v.
Summum, the Supreme Court has clarified that government speech can also
be created when a government accepts, embraces, and communicates a
donated message.299 Private entities may originate messages and design
communicative media containing those messages, and then donate the
media/messages to the government. If the government chooses to reject
the donation, as it surely would have a right to do,300 then presumably no
government speech arises from the attempted donation;301 but if the
government chooses to accept and display the donated property, the
government now owns and controls the property and may have embraced
communication of the message so strongly that the message of that
particular display ought to be regarded as governmental speech.302 This
would seem particularly true if the display, or the property on which it is
erected, has been clearly reserved for the expression of government
messages rather than being opened to multiple private speakers.
A common scenario is the donated monument. Suppose a private civic
group designs and pays for construction of a six-foot-tall granite
monument containing the text of the Ten Commandments, and then offers
to donate the monument to a state government for display on the grounds
of the state capitol building, where nearly forty other state-owned historical
monuments and markers are displayed over twenty-two acres.303 The state
chooses to accept the donation and allow the display, so the state selects
the precise site for the monument, and the group pays for the erection of
299
Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1138 (2009).
See, e.g., Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1089,
1093–95 (8th Cir. 2000), cert. denied, 531 U.S. 814 (2000) (holding that a publicly owned radio station
was permitted to reject the donation of funds from the Ku Klux Klan, and refuse to acknowledge such
donation on air, based on viewpoint and reputation of the Klan).
301
See id. In Knights, the Eighth Circuit found that the government’s on-air acknowledgements
of underwriters constituted government speech—but of course, the Klan’s particular message did not
constitute government speech, since the government rejected the donation and refused to acknowledge
the Klan. See id. at 1093.
302
Again, the same message on a different, privately owned display on private property would not
be government speech under this factor, just as a privately originated “Just Do It” ad would not count
as government speech under the first factor. E.g., supra note 294 and accompanying text.
303
The facts presented here are taken from Van Orden v. Perry, 545 U.S. 677, 681–82 (2005)
(plurality opinion).
300
416
[Vol. 42:365
the monument there and also adds an inscription naming the group and
specifying that the group “presented” the monument to “the people and
youth” of the state.304
The first question of this Article’s three-factor test will not clearly
indicate in this scenario that the monument is government speech, because
it was the private organization, not the government, that independently
generated the idea of reaching an audience with this particular message in
this medium. The government did not come up with the idea for the
monument independently, but only erected it at the suggestion of the
private group. Answering the second question, however, clarifies that the
monument is indeed government speech; the media, both the monument
and the capitol grounds, were owned and controlled by the government and
clearly reserved for expressing only those messages that the government
regarded as its own. The media and format are important. Here, although
the government may (at least implicitly) invite private speakers to
demonstrate in person in its parks or other public spaces, the city has not
even implicitly invited private parties to erect unattended, permanent
monuments there. The format of the park and the monuments standing in
it strongly indicate that unattended park monuments are reserved for
government messages.
The Supreme Court focused on exactly these considerations while
addressing very similar facts in Pleasant Grove.305 The Court noted that
one could assume the public grounds were never opened generally to
private speakers’ monuments for the purpose of encouraging private
speech or raising revenue, and the government did not actively encourage
donations of monuments; every donated monument had likely been
screened by the government, not just to assure that no distasteful message
was present, but to assure that the message was something the government
wanted to say—something “worthy” of being displayed on the grounds.306
The donated monument may have begun as private speech, but under these
circumstances, when the government accepted and displayed it, it became
government speech. The upshot of this determination is that no private
speech rights are violated when the government refuses to accept and
display some other group’s donation; and on the other hand, any religious
endorsements on successfully donated and displayed monuments must be
considered the state’s expression for Establishment Clause purposes. This,
indeed, seems to be the way the Supreme Court has viewed such
monuments even before the most recent term—although in 2005 the Court
determined, on one set of facts involving Ten Commandments monuments,
304
Id.
Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132–35 (2009).
306
Id. at 1132–34.
305
2009]
417
307
that such a state expression did not violate the Establishment Clause.
Moreover, the reasoning in Pleasant Grove suggests that a “donated”
display could be considered government speech even if legal ownership of
the donated property itself were less clear, as long as the other
considerations noted above were still present and the government exercised
a sort of effective ownership and control over the display. Thus if a
monument were designed and funded by a private group, and the group
then asked the government for permission to erect it as a permanent fixture
on government property in front of the county courthouse,308 the
government’s affirmative grant of permission would arguably convert the
monument’s message into government speech, whether or not the
government ever became the legal owner of the monument.309
Similarly, the Supreme Court has found an improper governmental
endorsement of religion—which indicates that the government was
expressing something—when a government agreed to allow a private
organization to display a crèche on government property and to store the
crèche in a governmental storeroom when it was not being displayed.310
This case involved both a crèche and a menorah. The crèche was
technically the property of a private Catholic organization called the Holy
Name Society,311 and the menorah was technically the property of a private
Jewish organization called Chabad,312 but both the crèche and the menorah
remained at all times on government property, being stored and maintained
by the government even when not on display, and were decorated by
government employees during the holiday season.313 The menorah was
even assembled, erected, and disassembled by government employees,314
307
See Van Orden, 545 U.S. at 691–92 (plurality opinion) (referring to monuments on the grounds
of Texas State Capitol as “[Texas’s] Capitol grounds monuments” and upholding the display of a Ten
Commandments monument because “Texas’ display of this monument” did not violate Establishment
Clause (emphasis added)); id. at 702 (Breyer, J., concurring in judgment) (“[T]he State sought to reflect
moral principles.”). While I assert that Ten Commandments monuments under these circumstances
constitute government speech, and also that a majority of justices suggested as much in Van Orden, I
express no opinion here regarding the ultimate outcome in Van Orden or the proper application of the
Establishment Clause to such monuments.
308
See Staley v. Harris County, 461 F.3d 504, 506–07 (5th Cir. 2006), vacated as moot, 485 F.3d
305 (5th Cir. 2007) (referring to the placement of a privately constructed monument at the main
entrance of a courthouse).
309
The Fifth Circuit found that such a display, which contained an open Bible, violated the
Establishment Clause because “the monument . . . had come to have a predominately religious
purpose.” Id. at 515. Since private entities and their messages cannot violate the Establishment
Clause, the opinion seems to be premised on the assumption that the government was speaking by
displaying this monument. The opinion nowhere mentions who legally owned the monument after it
was erected—perhaps because no one knew. The consideration seems to have been irrelevant.
310
ACLU v. County of Allegheny, 842 F.2d 655, 657 (3d Cir. 1988), aff’d in part, rev’d in part,
492 U.S. 573 (1989).
311
Id. at 657.
312
County of Allegheny v. ACLU, 492 U.S. 573, 587 (1989) (Blackmun, J., joined by Stevens &
O’Connor, JJ.).
313
ACLU, 842 F.2d at 657–58.
314
Id.; County of Allegheny, 492 U.S. at 587 (Blackmun, J., joined by Stevens & O’Connor, JJ.).
418
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and the crèche was flanked by a plaque stating that the crèche had been
“‘Donated by the Holy Name Society.’”315 A majority of the Court found
that, under the circumstances, the government had impermissibly endorsed
religion by allowing display of the crèche;316 while a different majority
found that by allowing display of the menorah, flanked by a large
Christmas tree and a sign saluting liberty, the government had either
endorsed something besides religion,317 or had endorsed religion
permissibly.318 But in any case, the analysis suggests that both displays
involved government speech—that is, governmental endorsement of
something—notwithstanding the fact that the crèche and the menorah were
technically owned by private groups.319
Although it is a closer case, the government’s broadcast of the
messages written by donors in Knights probably also gave rise to
government speech.320 In that case, a government-owned radio station
received monetary donations from a variety of private entities and was
required under federal law to “acknowledge[] on air any individual or
group source of funding for a particular broadcast matter,” although the
acknowledgements had to be “value neutral” and could not “promote” the
donor.321 The announcement might be drafted in the first instance by the
donor itself or by the government, but the wording of all such underwriting
announcements had to be approved by the government before being read
on air by a government employee.322
Not all speech broadcast by public stations is the same type of speech.
The Supreme Court noted two years prior to Knights that “[w]hen a public
broadcaster exercises editorial discretion in the selection and presentation
of its programming, it engages in speech activity,” and that “[such]
programming decisions . . . constitute communicative acts.”323 The Court
also held in that case, however, that “candidate debates [broadcast by
315
County of Allegheny, 492 U.S. at 580 (Blackmun, J., joined by Stevens & O’Connor, JJ.).
Id. at 601–02 (Blackmun, J., joined by Brennan, Marshall, Stevens, & O’Connor, JJ.).
Id. at 616 (Blackmun, J.).
318
Id. at 662–63, 670–71 (Kennedy, J., concurring in part and dissenting in part) (joined by
Rehnquist, C.J., and White & Scalia, JJ.).
319
See infra notes 381–82 and accompanying text; see also Wells v. City & County of Denver,
257 F.3d 1132 (10th Cir. 2001), supra Part IV.A. (discussing Wells). The holiday display in Wells
seems to have been the property of the government, either donated by private entities or partially
funded by them. See id. at 1137–38. But even if the components of the display, including the sign, had
all been created by private sponsors and donated to the city for display on public property, it is difficult
to believe the court would have concluded under the four-pronged test that the message involved
private and not government speech. See id. at 1141–43 (applying the test and concluding that the
display constituted government speech). And this result would be the same under the second question
of the test this Article proposes for identifying government speech.
320
Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1087–89 (8th
Cir. 2000) (stating the facts of the case).
321
Id. at 1088.
322
Id. at 1088, 1094 n.10.
323
Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998).
316
317
2009]
419
324
public broadcasters] present the narrow exception to the rule”
and
constitute a nonpublic speech forum.325 These results are predictable under
the test this Article suggests. When public broadcasters choose what to
broadcast, the content choices are government speech under question one
of the three-question test, because the government came up with the idea of
reaching an audience in this medium with that content. In analyzing
candidate debates, however, the focus shifts to the particular messages
delivered by each candidate. The government in no way endorses what
each candidate says, simply by broadcasting the debate. The debate—to
the extent it is broadcast by a public broadcasting station—thus constitutes
a government-provided speech forum of some type for private speakers.
Applying the three-question tests yields the same result: the government
did not independently generate the idea of reaching an audience with a
particular candidate’s message (say, decreasing taxes or building a new
road); nor was the literal speaker a government employee; and while the
medium and format in which the messages appeared were effectively
owned by the government, the medium and format were not clearly
reserved for the purpose of expressing government-approved messages.
The more difficult question is the classification of the underwriting
announcements in Knights. The Eighth Circuit found the messages to
constitute government speech.326 The second factor of the three-factor test
suggests this result as well. Factor one would not indicate government
speech because the government did not come up with the idea of reaching
an audience with the particular message drafted by, say, the Smith
Charitable Trust. But under the circumstances, the second factor is
probably satisfied because the government-owned medium and format here
were clearly reserved for the purpose of expressing government messages,
not to raise revenue or encourage private speech. The revenue-raising part
of the analysis is the closest call, but on the whole, the acknowledgement
program does not seem to have been put in place to encourage donations to
the station, but rather to satisfy legal requirements, and perhaps
secondarily, to give donors a “free gift”—akin to the ubiquitous tote bag
offered to donors by a number of charitable organizations.327 The
“message,” in the form of written words on a piece of paper, may or may
not have been “donated” by a private group along with its money, but the
government’s affirmative decision to accept and read the donated
message—along with all the other facts present here, including government
ownership and control of the medium—makes this look like government
324
Id. at 675.
Id. at 676.
Knights, 203 F.3d at 1093.
327
See id. (noting that the program is enforced by federal statute and is an “acknowledgement”
and not a promotion).
325
326
420
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speech. In addition, the fact that private speakers were never allowed to
speak freely on public radio underwriting spots—value bias and promotion
of products or organizations being forbidden by the government—makes
this program substantially different from governmental programs widely
inviting the public to buy ad space to promote private groups and
messages,328 and suggests that even privately composed underwriting
messages constitute government speech when they are accepted, approved,
and read on air by government employees in order to comply with federal
law.
C. Is There a Clear Literal Speaker Who Is Employed by the Government
to Send Messages on This Subject in This Format?
The first and second questions of the proposed test will likely identify
most of the speech the Supreme Court has called “government speech” in
its cases to date. But the Supreme Court has suggested in Garcetti v.
Ceballos329 that there may be one further way a message could be deemed
government speech. Hence, the third question is included here.
In Garcetti, a deputy district attorney wrote a memorandum to his
supervisors recommending dismissal of a pending criminal case due to
misrepresentations contained in an affidavit that had been used to obtain a
critical search warrant.330 His supervisors decided to proceed with the
prosecution anyway, and the trial court later rejected the defense’s
challenge to the warrant.331 In a subsequent action invoking his rights
under the Speech Clause, the deputy district attorney claimed that after
these events he was subjected to a series of adverse employment actions
which were designed to retaliate against him for the memorandum.332 The
Court rejected his First Amendment claim on the ground that “his
expressions were made pursuant to his duties as a calendar deputy” and
therefore did not constitute protected private speech: “[W]hen public
employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes . . . .”333 In
other words, those statements are government speech, not private speech.
This holding fits tolerably well with the government speech doctrine,
at least if one may assume that government employees who speak
“pursuant to their official duties” have been hired by their employers to
convey the government’s messages. In such cases, the employee’s
governmental superiors must be allowed to approve the messages even
328
For a discussion of such programs, see infra notes 354–62 and accompanying text.
547 U.S. 410, 421 (2006).
330
Id. at 413–14.
331
Id. at 414–15.
332
Id. at 415.
333
Id. at 421.
329
2009]
421
before they are released, as well as to discipline the employee after
publication if she failed to tailor the message to the government’s
expectations about the content of what is, after all, its own message.334 On
the other hand, if the message does not arise from the employee’s messagesending duties—if the speaker is not employed to send messages on this
subject in this medium—then the message might well constitute private
speech, particularly if it concerns a matter of public interest.335 And of
course, if it is unclear who the “literal speaker” is, the speech cannot be the
kind of speech that the Court found in Garcetti.336
The third factor of the proposed government speech test is designed to
make sure Garcetti speech is identified as government speech, assuming
there might be cases where neither of the first two factors clearly indicate
this. Of course, the speech appearing within a calendar deputy’s
disposition memo will constitute government speech under the first factor
if “the government” may be said to have come up with the idea of
rendering the particular advice contained in the memo; but where a
government employee expresses a viewpoint at odds with that of his
supervisors, as in Garcetti, it will be difficult to reach such a conclusion.
Under the second factor of my test, the memo will constitute government
speech if the medium and format (here, intra-office memos sent by
government employees within a government office) were effectively
owned and controlled by the government and reserved for the purpose of
expressing government-approved messages, not private speech. It might
well be thought that the Garcetti facts indicate precisely this kind of
government speech. But on the other hand, one might argue, the very fact
334
I do not intend to express any view about the difficult cases that may arise in particular
applications of the Garcetti rule—for example, when employment status or duties are unclear. See id.
at 424–25 (noting that the scope of an employee’s duties could be a matter for “serious debate” in
future cases, and noting that speech by academics that is “related to scholarship or teaching” could
present an especially difficult case); id. at 436, 438–39 (Souter, J., dissenting). In such cases, the third
question might not indicate government speech. Similarly, the third question would not indicate
government speech if the identity of the “literal speaker” were unclear in a particular case. For a
discussion of some of the difficulties in identifying “literal speakers,” see supra notes 189–90 and
accompanying text.
335
See Garcetti, 547 U.S. at 419 (“[S]o long as employees are speaking as citizens about matters
of public concern, they must face only those speech restrictions that are necessary for their employers
to operate efficiently and effectively.” (internal citations omitted)); Pickering v. Bd. of Educ. of Twp.
High Sch. Dist. 205, 391 U.S. 563, 568, 573–74 (1968) (“Statements by public officials on matters of
public concern must be accorded First Amendment protection despite the fact that the statements are
directed at their nominal superiors.”).
336
No doubt “literal speakers” are difficult to identify in many situations. See supra notes 189–90
and accompanying text (illustrating this difficulty). But this poses no difficulty in prong three of the
proposed test, because whenever a literal speaker cannot clearly be identified, the solution is clear:
there can be no finding of government speech under this prong. In other words, unlike the fourpronged test, the test does not require the identification of a “literal speaker” of every message; the
“literal speaker” factor is not serving as one of several factors to be weighed together in distinguishing
between government and private speech in every situation. Question three merely sniffs out one kind
of government speech: the kind arising when there clearly is a literal speaker employed by the
government and having particular job responsibilities.
422
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that “rogue memos” like this one are sent belies effective governmental
control of the medium and indicates that not all messages sent in this
medium and format are “government-approved.” Additionally, it might be
argued, the Garcetti Court did not focus on government ownership and
control of the medium, but upon the employment status and duties of the
literal speaker.337 Accordingly, the third factor is offered here to cover the
instance of the employee paid by the government to send government
messages, who then sends messages contrary to the government’s wishes;
the purpose is to make doubly sure that speech sent pursuant to such
duties—even noncompliant speech—is classified as government speech in
cases where employment status and duties to send government messages
are clear.338 Not only does this treatment accord with Supreme Court
precedent, but it is probably necessitated by the whole notion of
government speech. The government needs to be able to assure that those
it employs to convey government speech are doing so accurately; if the
government cannot control the content of its intended messages, the
government speech doctrine would become a nullity.339
VII. USING THE THREE-PART TEST TO UNDERSTAND
PAST AND FUTURE CASES
A. Explaining Supreme Court Precedents
The three-part test for identifying government speech is intended to be
descriptive. I have suggested the test, not just as a straightforward way of
measuring what seems to be the essence of government speech, but also as
a method of describing what the Supreme Court has actually found to be
government speech. In other words, the three-factor test provides a
method of reconciling the Supreme Court precedents. Applying the test to
the Court’s establishment and free speech cases yields results that mirror
those reached by the Court.
1. Private Speech
As a starting point, the Court has been clear that governmental funding
of speech does not always create government speech. The Court has
squarely held that “even in the provision of subsidies, the government may
337
See Garcetti, 547 U.S. at 420–22 (noting that a “controlling factor” in Ceballos’s case was that
his speech was made pursuant to his duties “as a calendar deputy”).
338
See supra note 334 (discussing this aspect of the third factor).
339
See Garcetti, 547 U.S. at 422–23 (“Official communications have official consequences,
creating a need for substantive consistency and clarity. [Governmental] [s]upervisors must ensure that
their employees’ official communications are accurate, demonstrate sound judgment, and promote the
employer’s mission.”).
2009]
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340
not ‘ai[m] at the suppression of dangerous ideas,’” a holding that only
makes sense if government-funded speech sometimes constitutes private,
not government, speech. Hence, when a federal program disbursed grants
to fund only art which program administrators considered to be of
sufficient artistic merit and sufficiently representative of “general standards
of decency,” the art thus subsidized was deemed private speech and the
funding restrictions were required to be viewpoint-neutral, although no
forum for speech was created.341 Similarly, when a federal program
disbursed grants to pay legal services attorneys to represent private clients
in claims against the federal government, the subsidized attorneys’ speech
was deemed private speech and the funding restrictions were required to be
viewpoint-neutral, although no forum for speech was created.342 And when
the government expends its own funds to acquire books, internet
connections and terminals, or other materials and resources for a public
library or public school library, the Court has indicated that the messages
contained in the materials and resources thus acquired still constitute
private and not government speech, although the library is not a forum for
speech.343 Decisions to remove materials from an existing library
collection therefore must be viewpoint-neutral,344 although the Court has
340
Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (quoting Regan v. Taxation
With Representation of Wash., 461 U.S. 540, 550 (1983)).
341
See Finley, 524 U.S. at 586–87 (“If the NEA were to leverage its power to award subsidies on
the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a
different case.”); see also id. at 611 (“The Government freely admits . . . that it neither speaks through
the expression subsidized . . . nor buys anything for itself with its . . . grants.”) (Souter, J., dissenting);
FCC v. League of Women Voters, 468 U.S. 364, 366 (1984) (holding that a federal statute violated the
Speech Clause by forbidding public broadcasting grants to be distributed to broadcasting stations that
“engage in editorializing”; such editorials are private speech protected by the Speech Clause; and the
funding restriction was too coercive); Hannegan v. Esquire, Inc., 327 U.S. 146, 148–58 (1946) (finding
that a postmaster violated the Speech Clause when he exercised authority to revoke second-class
mailing privileges for publications he deemed to be insufficiently advancing public welfare; although
speech contained in second-class mailings was subsidized by government, it was still private speech
protected by the First Amendment, and the postmaster’s content rules were too arbitrary and
restrictive); cf. Ysursa v. Pocatello Educ. Ass’n, 129 S. Ct. 1093, 1100–01 (2009) (finding that a state
law prohibiting public employee payroll deductions to fund a union’s political activities did not violate
the Speech Clause; although the union’s political activities constituted private speech, the payroll
restriction was viewpoint-neutral); Regan, 461 U.S. at 540 (federal tax regulations did not violate the
Speech Clause by denying certain beneficial tax status to private organizations that devoted a
substantial part of their activities to political lobbying; although the lobbying messages constituted
private speech protected under First Amendment, the regulations were viewpoint-neutral).
342
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541–43, 547–49 (2001).
343
See United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 203–07 (2003) (plurality opinion)
(noting that internet access, in a public library, bought with public funds, facilitates communication by
private parties but does not constitute a public forum for such speech); see also id. at 236 (Souter, J.,
dissenting) (“[I]n extreme cases [one could] expect particular [book acquisition] choices [by public
libraries] to reveal impermissible reasons (reasons even the plurality would consider to be illegitimate),
like excluding books because their authors are Democrats or their critiques of organized Christianity
are unsympathetic.”); Bd. of Educ. v. Pico, 457 U.S. 853, 866–72 (1982) (plurality opinion).
344
See Pico, 457 U.S. at 870–72 (holding that “local school boards may not remove books from
school library shelves simply because they dislike the ideas contained in those books”).
424
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suggested that heightened judicial scrutiny is inappropriate in the context
of decisions, necessitated by limited funds, whether to acquire certain
materials in the first place.345
The three-factor test would likewise indicate private speech in each of
the instances above, even if no forum was created. In none of these cases
did the government independently generate the idea of reaching an
audience with any of the particular subsidized messages; nor were the
funded messages expressed in a medium or format effectively owned by
government and clearly reserved for government messages; nor was the
literal speaker a governmental employee. But varying the facts slightly
could yield a different result. For example, if the government expends
funds as a patron commissioning particular works of art for display to the
public on public property, the funded artwork might well constitute
government speech, for two independently sufficient reasons: (1) the
government may have independently come up with the idea for the
particular work of art and for its ultimate display in this medium, before
the work was commissioned; and (2) when the artwork was finally
displayed, the medium and format of the display would be effectively
owned by the government and likely reserved for governmental messages,
not opened to multiple private speakers.346
Of course, when the government does create or maintain a speech
forum, at least some speech within that forum will be private speech,347 and
the restrictions on use of the forum must be viewpoint-neutral.348
Unfortunately, the Court has not been entirely clear about what counts as a
“forum” for these purposes. The Court has distinguished between the
“traditional public forum,” the “designated public forum, whether of a
limited or unlimited character,” and “all remaining public property.”349
Since that enumeration, the Court has also suggested, logically enough,
that there is an important distinction to be made within the latter category
between a “nonpublic forum” and other public property which is not a
345
See Am. Library Ass’n, 539 U.S. at 205 (“Just as forum analysis and heightened judicial
scrutiny are incompatible with the role of public television stations and the role of the National
Endowment for the Arts, they are also incompatible with the discretion that public libraries must have
to fulfill their traditional missions.”); see also Pico, 457 U.S. at 871–72 (“[N]othing in our decision
today affects in any way the discretion of a local school board to choose books to add to the libraries of
their schools . . . . [O]ur holding today affects only the discretion to remove books.”).
346
See Finley, 524 U.S. at 610–11 (Souter, J., dissenting) (noting the permissibility of viewpoint
discrimination in such contexts).
347
348
See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983)
(noting that when governmental property functions as any kind of speech forum, whether public or
nonpublic, the government may not “suppress expression [in the forum] merely because public officials
oppose the speaker’s view”).
349
See, e.g., Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678–79 (1992)
(defining each of the three types of forums).
2009]
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350
forum of any type. The distinction is important because the existence of
a forum—even a nonpublic one—will suggest the presence of private
speech351 and the requirement of viewpoint neutrality,352 which will not be
the case with all public property.
The Court has not always used forum language precisely, a fact which
sometimes poses challenges for understanding the Court’s conclusions and
reconciling those with the government speech doctrine. In Lehman v. City
of Shaker Heights,353 a leading Supreme Court case about governmental
programs to sell advertising space, a city sold ad space on public transit
cars to a variety of commercial and non-commercial speakers.354 In
upholding a city rule excluding political advertising from the ad space, a
plurality of the Court stopped short of characterizing the ads as some kind
of government speech, but did state flatly that “[n]o First Amendment
forum is here to be found.”355 Taken literally, that means the ad space did
not constitute even a nonpublic forum. But Lehman was decided a decade
before the forum doctrine was fully announced in Cornelius356 and Perry
Education Association,357 and the literal reading does not square well with
later opinions suggesting that forums are created when public property is
opened to a variety of private speakers, such as advertisers358 or political
candidates.359 Indeed, lower courts have subsequently interpreted the
statement in Lehman to mean “no public forum is here to be found,” and
that advertising spaces such as those at issue in Lehman constitute
nonpublic forums.360 Even the Supreme Court itself has suggested this
350
See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998) (noting that when a
public television station aired a debate among political candidates, “the . . . debate was a forum of some
type” and that “[t]he question of what type must be answered by reference to our public forum
precedents” (emphasis added)); see also id. at 677 (“Other government properties are either nonpublic
fora or not fora at all.”).
351
352
353
418 U.S. 298, 303 (1974) (plurality opinion).
354
Id. at 300–01.
355
Id. at 304.
356
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 804–06 (1985)
(holding that solicitation in the context of the Combined Federal Campaign is speech in a nonpublic
forum).
357
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983) (finding that an
interschool mail system was a nonpublic forum).
358
See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 675, 679 (1992) (finding
airport terminals to be “generally accessible to the general public,” to contain “various commercial
establishments such as restaurants, snack stands, bars, newsstands, and stores of various types,” and to
be “nonpublic fora” for expression); see also Cornelius, 473 U.S. at 806 (finding that an annual
fundraising drive in the federal workplace constituted “a nonpublic forum”).
359
See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 675–76 (1998) (holding that a
publicly owned television station did not violate the First Amendment when it refused to allow a
candidate to participate in the nonpublic forum of a televised debate).
360
See DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965–67 (9th Cir.
1999) (citing Lehman as support for the holding that the advertising space on a public high school’s
baseball field fence was a nonpublic forum); N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123,
426
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361
interpretation in a later case. Probably the best reading of Lehman, then,
is that the Court found the approved ads to constitute private speech in a
nonpublic forum. The three-factor test would likewise suggest that the ads
constituted private speech: The government did not come up with the idea
to promote a certain brand of cigarettes or a certain church on public transit
cars;362 nor were the ad spaces clearly reserved for government-endorsed
messages; nor was the literal speaker a government employee.
Many times, of course, the existence of a forum is more obvious.
Hence when a city maintains a public square and allows a variety of
religious and non-religious private demonstrators to express themselves
there, the demonstrators’ messages are private speech (notwithstanding
their location on public property and amidst public buildings), and as such
do not raise Establishment Clause concerns when they endorse religion.363
Moreover, when a public university subsidizes a fund which pays for the
speech of a variety of student groups, the university has created a speech
forum, the funded speech is private speech, and the funding restrictions
must be viewpoint-neutral.364 And when a public school offers its facilities
to a variety of private groups for “social, civic, or recreational uses” but
denies use “by any group for religious purposes,”365 the school has created
a speech forum, the speech in the forum is private speech, and the
restriction forbidding religious uses cannot stand because it is not
viewpoint-neutral.366
The three-factor test would likewise indicate private speech in each of
these instances involving forums. The government did not independently
generate the idea of reaching an audience with any particular message
129 (2d Cir. 1998) (noting that the Court in Lehman “ha[d] considered the forum non-public”).
Sometimes, where past governmental policies have allowed broad access to the government’s ad space,
courts have even distinguished Lehman and have found the space to constitute a designated public
forum. See Christ’s Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242, 255 (3d
Cir. 1998) (“SEPTA has no long-standing practice of prohibiting ads like [the ones at issue in the case]
. . . nor does it have any policy pursuant to which [the] ads were removed . . . . Because we find that
SEPTA has created a designated public forum, content-based restrictions on speech that come within
the forum must pass strict scrutiny to comport with the First Amendment.”); Planned Parenthood
Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225, 1232, 1233 (7th Cir. 1985) (holding that
public transportation advertising space became a public forum because the government maintained “no
system of control” over advertisements selected and had “allowed its advertising space to be used for a
wide variety of commercial, public-service, and political ads”).
361
See Cornelius, 473 U.S. at 801 (noting that in Lehman, “the Court treated the advertising
spaces on the buses as the forum” (emphasis added)).
362
See Lehman v. Shaker Heights, 418 U.S. 298, 300 (listing cigarette companies and churches as
two of the groups that had advertised in the ad spaces).
363
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760–63 (1995).
364
Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229–33 (2000);
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829–30 (1995).
365
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 387 (1993) (holding
that denying a church access to school premises to show a religious film series violates the Freedom of
Speech Clause).
366
Id. at 391–94.
2009]
427
appearing in the forum; nor was the literal speaker a governmental
employee; and while the messages were likely expressed in some medium
or format effectively owned by government, the status of that property as a
forum makes it unlikely that the medium and format were clearly reserved
for government messages.
The examples above illustrate that government support and funding of
a message do not always create government speech, but the waters may be
muddied further when it is unclear who really provided the funding. Much
depends on whether we are looking for the immediate source or some
ultimate source. The Court has determined that the source should be
identified as the most immediate one we can find who had real control over
fund allocation. In Zelman v. Simmons-Harris,367 a case involving public
funding of an educational voucher program which allowed parents to direct
the vouchers to private religious or non-religious schools if they wished,
challengers asserted that the program violated the Establishment Clause
because the program allowed public money to be used to fund religious
expression in those recipient schools that were religious.368 The Court
rejected the claim, holding in essence that the religious expression was
private speech funded with private money, since parents chose whether to
fund it.369 Of course, the money had come to the parents from the
government at an earlier time; but if the parents’ spending choices were
truly voluntary, the source of the religious schools’ funding was the
parents, and the religious speech by private school teachers remained
private. The result is identical under the three-factor test: The government
did not come up with the idea of praising God in the classroom; the
religious message was not expressed in a medium or format effectively
owned by government; and the literal speaker was not a government
employee.
The physical setting or environment of speech can also make it
difficult to determine whether the speech is governmental or private.
Occasionally private speech can be identified even in settings of extensive
governmental control, although the Court has sometimes been sympathetic
to the government’s need to censor such private speech. For example,
when a journalism course in a public high school requires students in the
course to produce a school newspaper, the Court has said that the studentwritten articles in the newspaper constitute private speech370 and the
367
536 U.S. 639 (2002).
Id. at 644–48.
369
See id. at 652–55.
370
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270–72 (1988) (referring multiple
times to the issue as one involving “student speech” and “personal expression”); id. at 273 (referring to
articles at issue as “student speech in school-sponsored expressive activities”).
368
428
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371
newspaper might constitute a nonpublic forum, although it does not
constitute a public forum.372 The Court held that the school is allowed to
exercise a great deal of control over the content of such speech,373 but it is
still private speech. The three-factor test probably points to the same
result, but it is admittedly a bit more difficult to apply here. Government
speech would not be indicated by factors one or three: it was the student’s
idea, not the government’s, to write a newspaper story about the particular
subject (in this case, students’ experiences with pregnancy and divorce),374
and the literal speaker (the student author) was not a government
employee. But factor two is a closer call. Because the government
effectively owned the medium and format of communication (the school
newspaper and school grounds), the question would boil down to whether
this medium and format were clearly reserved for the purpose of
expressing only governmental messages and not opened to multiple private
speakers for their own expression. If the newspaper often contained
student opinions, it would probably be difficult to say the medium and
format were clearly reserved, and on balance this factor would not indicate
government speech either. Even if the conclusion under this factor went
the other way in this close case, however, the error might well be harmless,
because of the Court’s determination that private speech in a public school
newspaper can be subjected to extensive governmental censorship375—the
same result which would obtain if the speech were regarded as government
speech.
2. Government Speech
Where the Supreme Court has found the presence of government
speech, the speech is one of the three kinds listed in the three-factor test.
Some cases of this sort have already been mentioned above.376 In addition
to those, consider a handful of recent Establishment Clause cases in which
the Court found the Clause was violated because of a message.377 Whether
371
See id. at 270 (describing actions of school officials with regard to school newspaper by saying
that “they ‘reserve[d] the forum for its intended purpos[e]’” (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983) (emphasis added))).
372
See Kuhlmeier, 484 U.S. at 267–70.
373
Id. at 271–73 (noting that when a public school regulates expressive activities that “may fairly
be characterized as part of the school curriculum,” the restriction may be broad and need only be
“reasonably related to legitimate pedagogical concerns”).
374
Id. at 263 (noting content of articles at issue).
375
376
See supra notes 284–88 and accompanying text; notes 303–39 and accompanying text.
377
I do not mean to suggest that this is the only possible kind of Establishment Clause violation.
It may well be possible for the government to violate the Clause without “government speech.” What I
am arguing is that if the Clause is violated by a message, then that message must constitute
“government speech.”
2009]
378
429
379
the standard used is the Lemon test, the endorsement test, or the
coercion test,380 private speech alone cannot violate the Establishment
Clause;381 a message cannot violate the Clause unless it was the
government’s message.382 In cases where the Court has found that a
particular message violated the Establishment Clause, the three-factor test
would identify the message as government speech. For example, when a
public school scheduled public prayers into the agenda of its graduation
ceremonies and invited a local clergyman to deliver the prayers, even
advising him on the wording of the prayers, the prayers could be
characterized as government speech under the first factor: the government
(that is, a government employee—the school principal—acting in his
official capacity) independently came up with the idea of reaching an
audience with this message in the graduation ceremonies.383 Likewise,
when a county erects a “Foundations of American Law and Government”
378
Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (providing that the test requires the
governmental action to satisfy three independent requirements: (1) it “must have a secular legislative
purpose”; (2) “its principal or primary effect must be one that neither advances nor inhibits religion”;
and (3) it “must not foster ‘an excessive governmental entanglement with religion’” (internal citations
and quotation marks omitted)). See McCreary County v. ACLU, 545 U.S. 844, 859–65, 881 (2005)
(applying the Lemon test); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314–17 (2000) (applying
the Lemon test).
379
See Santa Fe Indep. Sch. Dist., 530 U.S. at 307–10 (providing a recent application of the
endorsement test).
380
See id. at 310–12 (providing a recent application of the coercion test).
381
See, e.g., id. at 302 (“‘[T]here is a crucial difference between government speech endorsing
religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect.’” (quoting Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v.
Mergens, 496 U.S. 226, 250 (1990) (plurality opinion))); Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 760 (1995) (“[P]rivate religious speech, far from being a First Amendment
orphan, is as fully protected under the Free Speech Clause as secular private expression.”).
382
Justice O’Connor, joined by Justices Souter and Breyer, has stated a view that at first sounds
contrary to the one I am asserting, but upon investigation, the contradiction is largely illusory. In one
Establishment Clause case, she wrote, “I believe that an impermissible message of endorsement can be
sent in a variety of contexts, not all of which involve direct government speech or outright favoritism.”
Capitol Square Review & Advisory Bd., 515 U.S. at 774 (O’Connor, J., concurring in part). On its face,
this statement raises a question as to the meaning of “direct government speech.” If “direct” is not a
significant qualification, one wonders how a government can possibly send any “message of
endorsement” without “speech.” Later in the opinion, however, she clarified her view somewhat:
Where the government’s operation of a public forum has the effect of endorsing
religion, even if the governmental actor neither intends nor actively encourages that
result, the Establishment Clause is violated. This is so not because of . . . mistaken
attribution of private speech to the State, but because the State’s own actions [in
administering the forum], and their relationship to the private speech at issue,
actually convey a message of endorsement.
Id. at 777 (internal citations omitted). Thus, in such situations, Justice O’Connor apparently believes
the state is acting to send a message separate from the message of the private speaker, a message that
endorses what the private speaker is saying. On this understanding, violation of the Establishment
Clause still comes from government speech—in this case, the governmental message of endorsement
sent by the government’s actions in administering the forum. Without necessarily endorsing Justice
O’Connor’s view of how endorsement is to be identified in public forums, I think in the end she is
saying what I am saying: messages that violate the Establishment Clause constitute government speech.
383
See Lee v. Weisman, 505 U.S. 577, 587–89 (1992).
430
[Vol. 42:365
display in its courthouse, consisting of a framed copy of the Ten
Commandments and eight other framed historical documents of equal
size,384 it is relatively easy to characterize the display as government
speech under factor one and factor two as well, whether or not the elements
of the display were donated to the county.385
Less clear, perhaps, was the nature of a student-led prayer at a public
school football game. In that case, however, the Court emphasized the
unique history of the school’s policies governing such messages. For
many years this public high school had scheduled student-led public
prayers at home football games, and only later—after litigation—adopted a
policy to allow students to vote on whether to have a popularly-elected
student deliver “a brief invocation and/or message” to begin the games.386
The school also promulgated content rules applying to any message thus
delivered.387 A student was elected under this policy and delivered prayers
at the games.388 Under these circumstances, the Court found that the
“prayers bear ‘the imprint of the State’”389 and did not constitute private
speech.390 The outcome would likely be the same under factor one of the
three-factor test: the history at this school indicated that the government
independently came up with the idea of reaching an audience with prayers
over the loudspeaker at home football games, and the latest policy was not
an effort to create a forum for private speakers, but merely the
government’s attempt to assure that the prayers continued.391
B. Future Applications—Specialty License Plates
A uniform method of identifying government speech would prove
especially useful in one set of cases that has recently divided the federal
courts of appeals: the cases involving specialty license plate programs.392
These programs have already been discussed to some extent,393 but it might
be useful to apply the three-factor test to them more directly and suggest
the proper legal resolution of these cases.
License plates vary, as do the state programs established to regulate
them. The proper answer to the government speech question will likely
384
See McCreary County v. ACLU, 545 U.S. 844, 851–56 (1992).
See supra notes 302–19 and accompanying text for a discussion of governmental monuments
and displays and the application of the three-factor test to them.
386
Santa Fe Indep. Sch. Dist., 530 U.S. at 295–98 & n.6.
387
Id. at 298 n.6.
388
Id. at 298.
389
Id. at 305 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992)).
390
Id. at 310.
391
See id. at 306–07, 309–11, 315 (reaching similar conclusions after analyzing history and
context of policy).
392
See supra note 9.
393
See supra notes 9–17 and accompanying text; notes 72–114 and accompanying text; notes
133–41 and accompanying text; notes 152–85 and accompanying text.
385
2009]
431
depend on the type of license plate, or even the type of specialty plate
program, at issue. With regard to any particular program or type of plate,
we will want to know whether it involves one of the three types of
government speech thus far recognized by the Supreme Court.
As to standard-issue plates, it is difficult to view the messages
contained there as anything but government speech. Motorists do not
choose to display those messages, since presumably the law requires that
they must; moreover, the government crafted the message and also came
up with the idea of putting it on standard-issue plates. If a private motorist
disagrees with the message, the state has to allow him not to display it—
this is the teaching of Wooley v. Maynard394—but the Court did not reach
this result because the message “Live Free or Die” included some
component of private speech; rather, the Court held that private speech
rights are violated when the government compels a private motorist
personally to convey the government’s own message.395 The messages
contained in the alphanumeric combinations on vanity plates, by contrast,
ought to be regarded as private speech. Although the government owns the
license plate and the government’s name is embossed on it, no one—
including the government—views the alphanumeric combinations (or all
elements of all license plates, for that matter) as a medium or format
clearly reserved for the government’s own messages. And of course the
government did not come up with the idea of putting any of the particular
chosen messages on a license plate.
Specialty plates are the most difficult case of all, but calling them
hybrid speech merely hides the ball. It would be more accurate, perhaps,
to say that specialty plates (like vanity plates) contain some government
speech and some private speech on each plate. The elements of
government speech would include the state name, any state motto or other
design that the state has required for all license plates, and the overall
dimensions, materials, and construction of the plate (to the extent these
elements could be deemed expressive). These are elements which are
present only because the government came up with the idea of making
license plates in this way with these messages. It might also be that
messages honoring or identifying a particular group selected by the state—
say, Purple Heart recipients or firefighters396—could be considered
394
430 U.S. 705, 717 (1977).
See id. at 715 (“New Hampshire’s statute in effect requires that appellees use their private
property as a ‘mobile billboard’ for the State’s ideological message—or suffer a penalty.” (emphasis
added)).
396
Tennessee, for example, offers both these plate designs. The state groups its specialty plates
into categories, including “Clubs/Groups,” “Collegiate Plates,” “Disabled Plates,” “Emergency
Management,” and “Military/Veterans.” See Tennessee Department of Revenue, Specialty License
Plates, http://tennessee.gov/revenue/vehicle/licenseplates/specialty.htm (last visited Aug. 31, 2009).
The Purple Heart plate is classified within the “Military/Veterans” category and is available only to
Tennessee residents who can prove that they have been awarded the Purple Heart; there is no charge to
395
432
[Vol. 42:365
government speech, assuming that these groups did not petition the
government for issuance of the plates and the government was not trying to
give these groups a way to raise money and public awareness for some
cause.397 But when a particular organization’s logo or design appears on a
plate only because the organization came up with the idea of trying to
qualify for the issuance of a specialty plate bearing that design, the design
is not properly viewed as government speech; those logos and designs are
private speech. For one thing, the government did not independently come
up with the idea of putting that particular message on a specialty plate, or
even with some “overall message” to be conveyed by its specialty plate
program. For another, assuming the program allows or encourages private
applications of some sort (whether through legislative lobbying or through
paperwork filed with a state bureaucratic office), the medium or format of
specialty plate designs are not clearly reserved for government messages;
instead, they are open to multiple private speakers for the purpose of
raising revenue for the state and the organization and, to a lesser extent, for
encouraging the speech of private organizations and motorists. Finally, it
is clear that the literal speaker, whoever that may be, is not a government
employee whose job it is to send messages on license plates concerning
subjects like adoption or NASCAR.
These sorts of specialty plate programs are not reasonably viewed as
the state’s bully pulpit for sending its own messages, but rather as a stateregulated forum for the expression of a variety of private messages. The
fact that any such messages must be approved in advance by the state
suggests, not government speech, but the possibility of improper viewpoint
discrimination among private speakers. Using such evidence to show
either government speech or a governmental component of hybrid speech
is to use evidence of viewpoint discrimination as a justification for
the motorist for this plate. See Tennessee Department of Revenue, Specialty License Plates—
Military/Veterans: Purple Heart, http://tennessee.gov/revenue/vehicle/licenseplates/militaryveterans/
militarydesc.htm#purpleheart (last visited Aug. 31, 2009). The Firefighter plate is classified within the
“Emergency Management” category and is available only to Tennessee residents who can prove that
they are current or retired members of a “bona fide” “firefighting unit.” The charge for this plate is
$21.50, which is the same as the charge for a standard plate. See Tennessee Department of Revenue,
Specialty License Plates—Emergency Management: Firefighter, http://tennessee.gov/revenue/vehicle/
licenseplates/emergency/emergdesc.htm#firefighter (last visited Aug. 31, 2009). The standard plate is
listed as “Automobile/Motor Home” within the “Miscellaneous” category. See Tennessee Department
of Revenue, Specialty License Plates—Miscellaneous, http://tennessee.gov/revenue/vehicle/
licenseplates/misc/miscdesc.htm#automobile (last visited Aug. 31, 2009).
397
To the extent a qualified private motorist chooses such a plate instead of a standard-issue plate,
the message “I am a Purple Heart recipient” or “I am a firefighter” would also be the private speech of
the motorist. This might be the closest thing to true “hybrid speech.” But that should not affect the
analysis. The fact that the government’s predetermined message happens to be endorsed by a private
speaker should not mean that the government is speaking any less or that it is less free to specify which
of these sorts of messages it will issue in this way. Nor should any of this affect our analysis under the
Establishment Clause; the private speaker has a First Amendment right to endorse religion, but no First
Amendment right to demand that the government endorse religion first, thereby allowing her to join in.
2009]
433
viewpoint discrimination.
VIII. CONCLUSION
First Amendment principles require judges to differentiate between the
messages of the government and those of private parties. Messages
endorsing religion cannot violate the Establishment Clause unless the
government crafts or adopts the message as its own. And governmental
restrictions on a message’s viewpoint cannot violate the Speech Clause
unless the message is someone else’s.
The distinction between
government speech and private speech makes sense because we want to
allow the government to send its own messages as a participant in the
marketplace of ideas, but we do not want to allow the government to
allocate its vast resources discriminatorily so as to hobble whatever private
viewpoints it disfavors. If this distinction between government and private
speech makes sense, then it should be recognized—even in the hard cases
in the middle.
Thus far, the Supreme Court has recognized the distinction but has
given only limited guidance about how to identify government speech in
questionable cases. Still, what the Court has said can be largely distilled to
three factors that independently indicate the presence of government
speech. Compared to the single-prong, four-pronged, and mixed speech
approaches developed over the past decade by federal judges and
commentators, these three factors seem not only somewhat less subjective,
but also more closely tied to the essence of government speech. In short,
the presence of any one of these three factors tends to show that the
government has developed or adopted, in the words of the Court, a
“programmatic message of the kind recognized in Rust . . . .”398
Governments that do this are indeed sending their own messages.
398
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548 (2001).
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Article
How to Analyze the Accuracy of Eyewitness
Testimony in a Criminal Case
RICHARD A. WISE, CLIFFORD S. FISHMAN & MARTIN A. SAFER
This Article describes a method for analyzing the accuracy of
eyewitness testimony that will significantly enhance the ability of the
criminal justice system to assess eyewitness accuracy. The method
consists of the following components: First, ascertain whether law
enforcement conducted the eyewitness interviews in a manner that
obtained the maximum amount of information from the eyewitness, did not
contaminate the eyewitness’s memory of the crime, or artificially increase
the eyewitness’s confidence. Next, determine whether the identification
procedures in the case were fair and unbiased. Finally, evaluate what
eyewitness factors during the crime are likely to have increased or
decreased the accuracy of the eyewitness testimony. The Article discusses
scientific guidelines for assessing the fairness of eyewitness interviews and
identification procedures, and a list of eyewitness factors that most
commonly affect eyewitness accuracy in criminal trials. The Appendix
contains a form that will aid participants in the criminal justice system in
applying this method to eyewitness testimony in criminal cases. By
implementing this method, the criminal justice system will significantly
reduce wrongful convictions from eyewitness error.
435
ARTICLE CONTENTS
I. INTRODUCTION................................................................................................. 437
II. THE CURRENT STATE OF THE LAW ............................................................ 443
A.
B.
C.
D.
PRETRIAL AND IN-COURT IDENTIFICATIONS ..................................................... 443
ASSESSMENT OF THE SUPREME COURT’S APPROACH TO EYEWITNESS ERROR.... 448
HOW EYEWITNESS ISSUES ARE LITIGATED ....................................................... 450
EXPERT TESTIMONY REGARDING EYEWITNESS IDENTIFICATION ....................... 452
III. THE CAUSES OF EYEWITNESS ERROR ...................................................... 454
A.
B.
C.
D.
E.
F.
G.
THE NATURE OF HUMAN MEMORY................................................................... 455
EYEWITNESS BIAS ............................................................................................ 456
MISINFORMATION EFFECT ................................................................................ 457
SOURCE MONITORING ERRORS ......................................................................... 457
HINDSIGHT BIAS ............................................................................................... 458
EYEWITNESS OVERCONFIDENCE........................................................................ 458
EYEWITNESSES TEND TO MAKE A RELATIVE JUDGMENT IN MAKING
AN IDENTIFICATION ..................................................................................... 460
H. LINEUPS ARE FREQUENTLY CONDUCTED IN A MANNER THAT DRAWS
THE EYEWITNESS’S ATTENTION TO THE SUSPECT......................................... 461
I. LACK OF KNOWLEDGE OF MEMORY AND EYEWITNESS FACTORS ........................ 463
IV. WHY JUDGES AND ATTORNEYS NEED A METHOD FOR
ASSESSING EYEWITNESS ACCURACY IN CRIMINAL CASES .............. 464
V. A METHOD FOR ANALYZING THE ACCURACY OF
EYEWITNESS TESTIMONY .......................................................................... 470
VI. EVALUATING THE EYEWITNESS INTERVIEWS ...................................... 474
A. FACTORS THAT MAXIMIZE EYEWITNESS INFORMATION .................................... 475
B. FACTORS THAT PREVENT THE “CONTAMINATION” OF EYEWITNESS MEMORY.... 480
C. FACTORS THAT PREVENT THE INCREASE OF EYEWITNESS CONFIDENCE ............. 482
VII. GUIDELINES FOR EVALUATING THE FAIRNESS OF
IDENTIFICATION PROCEDURES ................................................................ 485
VIII. COMMON EYEWITNESS FACTORS THAT AFFECT EYEWITNESS
ACCURACY DURING A CRIME ................................................................... 497
A. EYEWITNESS CHARACTERISTICS ....................................................................... 498
B. PERPETRATOR CHARACTERISTICS ..................................................................... 502
C. CRIME CHARACTERISTICS................................................................................. 504
IX. ADMISSIBILITY OF EYEWITNESS IDENTIFICATIONS AT TRIAL ......... 506
X. CONCLUSION ................................................................................................... 508
APPENDIX .............................................................................................................. 512
How to Analyze the Accuracy of Eyewitness
Testimony in a Criminal Case
RICHARD A. WISE, CLIFFORD S. FISHMAN & MARTIN A. SAFER*
I. INTRODUCTION
In July of 1984, Jennifer Thompson, a 22-year-old college student,
awoke around 3:00 a.m. to find someone in her apartment. When she
asked who was there, a man jumped on her, pinned her arms to the side of
her head, put a knife to her throat, and raped her. Despite her terror, she
was determined to identify her rapist so he would pay for his crimes. Once
her eyes adjusted to the dark, she used the light coming through her blinds
and bedroom window, as well as her nightlight to see if he had any tattoos,
scars, unusual jewelry, how he parted his hair, what he was wearing, and
anything else that would be useful in identifying him. She made sure that
when he allowed her to stand up she stood close to him so she could
determine how tall he was.1
During her long ordeal, Jennifer tried maneuvering him into different
positions where she could best use the available light in her apartment to
see him. At one point, he bent down and turned on her stereo, and a blue
light from the stereo illuminated his face. When he permitted Jennifer to
go to the bathroom, she turned on the light and had an opportunity for a
moment to get a good look at his face. She also managed to briefly turn on
a lamp in the bedroom before he ordered her to turn if off. Jennifer told
her assailant that she was thirsty so she would have an excuse to go to the
kitchen. In the kitchen, she turned on the light, which gave her another
opportunity to see her assailant. Summoning her courage, wrapped only in
a blanket, Jennifer ran from her kitchen to a neighbor’s house. The rapist
* Richard A. Wise, Assistant Professor of Psychology, University of North Dakota (B.A. summa
cum laude, John Carroll University, 1975; J.D. cum laude, Cleveland-Marshall College of Law, 1979;
Ph.D. in Clinical Psychology, The Catholic University of America, 2003; Postdoctoral Fellowship in
Forensic Psychology, University of Southern California, 2004); Clifford S. Fishman, Professor of Law,
The Catholic University of America (B.A., University of Rochester, 1966; J.D., Columbia University,
1969); Martin A. Safer, Professor of Psychology, The Catholic University of America (B.S., University
of Wisconsin-Milwaukee, 1968; Ph.D., University of Wisconsin-Madison, 1978). From 1990–96,
Professor Wise served as an Assistant County Prosecutor in the Criminal Division of the Cuyahoga
County (Cleveland, Ohio) Prosecutor’s Office; from 1969–77, Professor Fishman served as an
Assistant District Attorney in the New York County District Attorney’s Office and as Chief
Investigating Assistant District Attorney in New York City’s Special Narcotics Prosecutor’s Office.
The authors express their gratitude to Bryan C. Clark, J.D. 2010, The Catholic University of America
Law School, for his assistance in preparing this Article.
1
MARK COSTANZO, PSYCHOLOGY APPLIED TO LAW 170 (2004); Helen O’Neill, The Power of
Faith: Eleven Years After Jennifer Thompson’s Mistaken Testimony Sent Him to Jail, Ronald Cotton’s
Spirit of Forgiveness Let Them Be Friends, NEWSDAY, Nov. 7, 2000, at B06.
438
[Vol. 42:435
did not follow, but that same night, he broke into another apartment and
raped a second woman.2
With the help of a police sketch artist, Jennifer created a composite
drawing of the rapist: an African American, in his twenties with short hair
and a thin moustache. The police widely circulated the composite drawing
and received several calls from people who thought they recognized the
rapist. Based on the calls, the police created a six-person photo array for
Jennifer, including all the suspects they had in the case. After studying the
photo array for a few minutes, Jennifer identified Ronald Cotton, an
employee at a local seafood restaurant, as the rapist. The police responded:
“We thought this might be the one,” because Ronald Cotton had a prior
conviction for sexual assault, and they knew that he liked white women.3
When Ronald Cotton learned that the police were looking for him, he
went to the police station to clear up the matter. Unfortunately, Ronald
Cotton did not help himself during his interrogation. He was nervous; he
got his dates mixed up, and his alibi did not check out. Furthermore, a
piece of foam was missing from one of his shoes, and a similar piece of
foam from a shoe was found at the crime scene. The police arrested him
for both rapes and placed him in a seven person lineup. Jennifer had little
difficulty identifying him from the lineup, but the second rape victim
identified a foil from the lineup. The police informed Jennifer that she had
identified the same man from the lineup whose photo she had picked out
from the photo array a few days earlier.4
At trial, the only physical evidence the prosecution produced to
connect Ronald Cotton to the crime was the piece of foam found at the
crime scene and that he owned a flashlight that resembled the one used by
the rapist. Jennifer, however, was a “terrific witness.” During the crimes,
she had made every possible effort to see her rapist, and she had identified
him twice, once from a photo array and once from a lineup. Moreover, she
was completely confident that she had the right man and told the jury that
she had no doubt that Ronald Cotton was the rapist. The jury found
Ronald Cotton guilty of rape. On January 17, 1985, when Cotton was
sentenced to life in prison, Jennifer toasted his sentence with champagne.
She said that “[i]t was the happiest day of [her] life.”5
After spending two years in prison, Ronald Cotton learned from an
inmate that another inmate, Bobby Poole, was bragging that he was the
man who had raped Jennifer Thompson and the other woman. Cotton was
eventually granted a new trial because the North Carolina Supreme Court
ruled that the trial court had erred in not permitting the jury to learn that
2
COSTANZO, supra note 1, at 170.
Id.; O’Neill, supra note 1.
4
COSTANZO, supra note 1, at 170; O’Neill, supra note 1.
5
COSTANZO, supra note 1, at 170–71; O’Neill, supra note 1.
3
2009]
ACCURACY OF EYEWITNESS TESTIMONY
439
6
the second rape victim had failed to identify him from the lineup.
In November of 1987, Cotton was retried, this time for both rapes,
because the second rape victim had decided by the time of the second trial
that Cotton was her rapist despite her failure to pick him out of a lineup
several years earlier. Both Jennifer and the second rape victim told the
jury that they were positive that Ronald Cotton was the rapist. The judge
excluded testimony during the trial that Bobby Poole had admitted to
committing the rapes. The jury found Ronald Cotton guilty, and he was
given two life sentences. Cotton’s appellate attorney failed to assert that
the trial court’s exclusion of Poole’s confession constituted prejudicial
error. Cotton’s new convictions were affirmed.7
For the next eight years, Cotton wrote letters to anyone he thought
might help him get his convictions overturned. He likely would have died
in prison if Richard Rosen, a law professor and attorney, had not decided
to investigate his case. Rosen and another attorney filed a motion for
appropriate relief on the basis of inadequate representation during his
second appeal. They also filed a motion for DNA testing, which was
granted in October of 1994. The DNA evidence from one victim was too
deteriorated to be conclusive, but the DNA samples from the other victim
showed that Cotton was not the rapist. At his defense attorneys’ request,
the DNA samples were sent to the state’s DNA database, which contains
DNA from all convicted felons in North Carolina. The DNA samples from
the crimes matched the DNA of Bobby Poole. After learning of the DNA
results, the district attorney joined with Cotton’s defense attorneys in
moving to dismiss all charges against Ronald Cotton. In July of 1995, the
Governor of North Carolina officially pardoned Ronald Cotton.8
Having spent two years wracked with guilt after learning that she
identified the wrong man, Jennifer asked the detective in charge of the case
to arrange a meeting for her with Ronald Cotton. An Associated Press
reporter described their meeting:
A few weeks later, she drove 50 miles to a church in the town
where she was raped. She asked her husband and the pastor
to leave. Trembling, she opened the door. She had prayed
for the strength to face this moment. She had prayed for the
strength to face this man. “I’m sorry,” she said. “If I spent
every day for the rest of my life telling you how sorry I am, it
wouldn’t come close to what I feel.” Ronald Cotton was
calm and quiet, and Thompson thought he seemed so very
6
State v. Cotton, 351 S.E.2d 277, 280 (N.C. 1987); O’Neill, supra note 1.
State v. Cotton, 394 S.E.2d 456, 457, 460 (N.C. Ct. App. 1990); see also O’Neill, supra note 1.
See EDWARD CONNORS ET AL., U.S. DEP’T JUST., CONVICTED BY JURIES, EXONERATED BY
SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL 44
(1996), available at http://www.ncjrs.gov/pdffiles/dnaevid.pdf.
7
8
440
[Vol. 42:435
tall. Finally, he spoke. “I’m not mad at you,” he said softly.
“I’ve never been mad at you. I just want you to have a good
life.” Tears falling, Thompson looked into his eyes and knew
she would never see him in her nightmares again.9
This case produced several tragedies. Jennifer endured the terrible ordeal
of the rape; she is still afraid sometimes, especially at night when she is
alone, and she had to deal with the guilt of convicting the wrong man.
Ronald Cotton was imprisoned for eleven agonizing years for crimes he
did not commit. Additional crimes could have been prevented if Bobby
Poole had been arrested earlier. The prosecutor, police, defense attorneys,
jurors, and judges have to live with the knowledge that they are responsible
for sending an innocent man to prison for eleven years. This case
illustrates both the power and the danger of erroneous eyewitness
testimony.10
Each year, thousands of men and women in the United States are
wrongfully convicted of felonies that they did not commit.11 Experts
estimate that eyewitness error plays a role in half or more of all wrongful
felony convictions.12 A study published in 2006 showed that eyewitness
9
O’Neill, supra note 1. Jennifer Thompson and Ronald Cotton became good friends. She said of
Ronald Cotton, “He is an amazing human being. He has been a real good teacher for me.” Id. Jennifer
Thompson has become a strong opponent of the death penalty and frequently speaks about the
unreliability of eyewitness testimony. Id.
10
See COSTANZO, supra note 1, at 171–72; CONNORS ET AL., supra note 8, at 43–44; What
Jennifer Saw, Transcript from Interview with Frontline, http://www.pbs.org/wgbh/pages/frontline/
shows/dna/interviews/cotton.html (last visited Aug. 27, 2009) (discussing the case and Cotton’s
experience with the North Carolina judicial system).
11
Richard A. Wise & Martin A. Safer, A Survey of Judges’ Knowledge and Beliefs About
Eyewitness Testimony, 40 CT. REV. 6, 6 (2003) (explaining that estimates of the number of wrongful
felony convictions range from 5000 to as many as 100,000 per year with DNA exoneration cases
suggesting that the number of wrongful felony convictions is closer to the upper limit of this estimate);
see also D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful
Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 780 (2007) (discussing a study that used the
DNA exoneration cases to estimate that in 3.3% to 5% of the capital rape-murder convictions in the
U.S. from 1982–89, the defendants were innocent). If this percentage of wrongful convictions were
applicable to other types of crimes, there would be 33,000 to 50,000 wrongful felony convictions per
year in the United States.
12
See C. Ronald Huff, Wrongful Convictions: Societal Tolerance of Injustice, 4 RES. IN SOC.
PROBS. & PUB. POL’Y 99, 103 (1987) (“In our own database, eyewitness error was involved in nearly
60 percent of the cases.”); Arye Rattner, Convicted but Innocent, 12 L. & HUM. BEHAV. 283, 289
(1988); see also Garrett L. Berman & Brian L. Cutler, Effects of Inconsistencies in Eyewitness
Testimony on Mock-Juror Decision Making, 81 J. APPLIED PSYCHOL. 170, 170 (1996) (“False
eyewitness identifications . . . appear to be one of the leading causes of erroneous conviction.”
(citations omitted)); Amy L. Bradfield et al., The Damaging Effect of Confirming Feedback on the
Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. APPLIED PSYCHOL. 112, 112
(2002); Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42
AM. CRIM. L. REV. 1271, 1275 (2005) (quoting United States v. Wade, 388 U.S. 218, 229 (1967)); Gary
L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and
Photospreads, 22 L. & HUM. BEHAV. 603, 605 (1998) (“In addition to the experimental literature, cases
of proven wrongful convictions of innocent people have consistently shown that mistaken eyewitness
identification is responsible for more of these wrongful convictions than all the other causes
combined.”); Northwestern Univ. Sch. of Law, Ctr. on Wrongful Convictions, How Mistaken and
2009]
441
error occurred in seventy-five percent or more of the first 180 DNA
exoneration cases.13 In several of the DNA cases, more than one
eyewitness made an erroneous identification, and a number of the
defendants were sentenced to death.14 Unfortunately, DNA testing can
correct only a small fraction of eyewitness misidentifications because it is
only available in a small number of criminal cases.15
One of the principal reasons that eyewitness error is the leading cause
of wrongful convictions is because it is one of the most powerful types of
evidence that can be presented against a criminal defendant.16 As the
United States Court of Appeals for the Second Circuit wrote in Kampshoff
v. Smith:
There can be no reasonable doubt that inaccurate
Perjured Eyewitness Identification Testimony Put 46 Innocent Americans on Death Row,
http://www.law.northwestern.edu/wrongfulconvictions/aboutus/ (last visited Aug. 31, 2009)
[hereinafter Ctr. on Wrongful Convictions]. Indeed, Edwin Borchard identified erroneous eyewitness
identification as a leading cause of false conviction over seventy years ago. EDWIN M. BORCHARD,
CONVICTING THE INNOCENT xiii (1932).
13
Gary L. Wells et al., Eyewitness Evidence, Improving Its Probative Value, 7 PSYCHOL. SCI.
PUB. INT. 45, 48 (2006); see also Donald A. Dripps, Miscarriages of Justice and the Constitution, 2
BUFF. CRIM. L. REV. 635, 638–39 (1999) (“A Department of Justice study found that, out of a sample
of more than 21,000 cases, DNA testing exonerated the suspect in 23% of the cases.”). Since DNA
evidence was first introduced into the criminal justice system, it has exonerated more than 144 people
who were wrongfully convicted of crimes. Samuel R. Gross et al., Exonerations in the United States,
1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 524 (2005). “In 64% percent of these
exonerations (219/340) at least one eyewitness misidentified the defendant.” Id. at 542. Eighty-eight
percent of the rape exonerations involved eyewitness misidentification. Id. at 530; see also Gary L.
Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 ANN. REV. PSYCHOL. 277, 278 (2003) (stating
that more than 100 convicted felons have been exonerated by DNA evidence).
14
The Northwestern University School of Law Center on Wrongful Convictions released a study
in 2001 involving wrongful convictions in capital cases throughout the United States. Of the eighty-six
cases studied, the Center found that “53.5%[] had been predicated in whole or part on mistaken or
perjured eyewitness testimony. In thirty-three of the cases, the eyewitness testimony was the sole basis
of the conviction.” Ctr. on Wrongful Convictions, supra note 12; see also WAYNE WEITEN,
PSYCHOLOGY: THEMES AND VARIATIONS, BRIEFER VERSION 230 (7th ed. 2008) (describing the nearconviction of an innocent priest based on the testimony of seven eyewitnesses); Wells et al., Eyewitness
Identification Procedures, supra note 12, at 605 (stating that of forty cases overturned by DNA
evidence in the 1990s, five of the exonerated inmates were on death row, and “36 (or 90%) involved
eyewitness identification evidence in which one or more eyewitnesses falsely identified the person”).
15
See Wells et al., Eyewitness Evidence, supra note 13, at 49 (“In contrast to sexual assault cases,
only a small fraction of murders (more than 16,000 reported in 2004) and almost no robberies (more
than 400,000 reported in 2004) or aggravated assaults (more than 850,000 reported in 2004) result in
biologically rich trace evidence left behind.”); Gary L. Wells et al., From the Lab to the Police Station,
A Successful Application of Eyewitness Research, 55 AM. PSYCHOLOGIST 581, 589 (2000)
(“Perpetrators of murders, drive-by shootings, convenience store robberies, muggings, and other
common crimes almost never leave DNA trace evidence that could exonerate someone who has been
the [sic] mistakenly identified by an eyewitness.”).
16
As one study on eyewitness testimony explained:
An eyewitness who says “That is the person I saw pull the gun” is providing direct
evidence of guilt in the sense that the criminal act and the defendant are directly
linked. In contrast, physical evidence such as fingerprints indicate only that the
suspect touched a given surface at some point in time, perhaps for reasons unrelated
to the crime, and hence is circumstantial evidence.
Wells et al., Eyewitness Identification Procedures, supra note 12, at 604.
442
[Vol. 42:435
eyewitness testimony may be one of the most prejudicial
features of a criminal trial. Juries, naturally desirous to
punish a vicious crime, may well be unschooled in the effects
that the subtle compound of suggestion, anxiety, and
forgetfulness in the face of the need to recall often has on
witnesses. Accordingly, doubts over the strength of the
evidence of a defendant’s guilt may be resolved on the basis
of the eyewitness’ seeming certainty when he points to the
defendant and exclaims with conviction that veils all doubt,
“[T]hat’s the man!”17
The prevalence of eyewitness error poses a major dilemma for the
criminal justice system because it is frequently the only or primary
evidence available in a criminal case. For instance, a 1987 study estimated
that in 77,000 criminal trials each year in the United States, the primary or
sole evidence against a defendant is eyewitness testimony.18 As evidenced
by the Ronald Cotton case described in this Introduction, criminal cases
where eyewitness testimony is the sole or primary evidence pose the
greatest risk that eyewitness error will result in a wrongful conviction.19
Therefore, it is essential that the criminal justice system institute reforms to
increase the reliability and accuracy of eyewitness testimony. As is
explained below, improving judges’ and attorneys’ abilities to assess the
accuracy of eyewitness testimony would significantly reduce eyewitness
error. This Article delineates a method for analyzing the accuracy of
eyewitness testimony that will enable judges and attorneys to achieve this
vital goal.
Part II of this Article describes the current state of the law concerning
eyewitness identifications. Part III examines the major causes of
eyewitness error. Part IV explains why the ability to assess the accuracy of
eyewitness testimony in criminal cases is essential to the proper
performance of judges’ and attorneys’ duties. Part V describes a three-part
method for analyzing the accuracy of eyewitness testimony that will
significantly enhance judges’ and attorneys’ abilities to evaluate
eyewitness accuracy. This method consists of the following components:
(1) judges and attorneys determine if law enforcement conducted the
eyewitness interviews in a manner that obtained the maximum amount of
17
18
C1.
Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir. 1983) (citation omitted).
Daniel Goleman, Studies Point to Flaws in Lineups of Suspects, N.Y. TIMES, Jan. 17, 1995, at
19
Richard A. Wise et al., A Tripartite Solution to Eyewitness Error, 97 J. CRIM. L. &
CRIMINOLOGY 807, 842 (2007); see also Wells et al., Eyewitness Identification Procedures, supra note
12, at 609 (stating that the only safeguard that has demonstrated any efficacy in educating jurors about
eyewitness testimony—expert testimony—is often not used by defendants because of its cost). For
further discussion of the difficulties in using expert testimony, see infra notes 84–90 and accompanying
text.
2009]
443
information from the eyewitness, did not contaminate the eyewitness’s
memory of the crime, or artificially increase the eyewitness’s confidence;
(2) they ascertain if the identification procedures in the case were fair and
unbiased; and (3) they examine the eyewitness factors during the crime
that likely increased or decreased the accuracy of the eyewitness
testimony.
Part VI sets forth scientific guidelines for evaluating whether an
eyewitness interview obtained the maximum amount of information from
the eyewitness, did not contaminate an eyewitness’s memory of a crime, or
artificially increased the eyewitness’s confidence. Part VII details
scientific guidelines for appraising the fairness of identification
procedures. Part VIII describes common eyewitness factors present during
crimes that affect eyewitness accuracy. Part IX sets forth a modified
standard for determining when eyewitness identifications should be
admissible at trial. Part X makes some concluding remarks about using
this method to analyze the accuracy of eyewitness testimony. The
Appendix to this Article contains a form that will aid judges and attorneys
in applying this method when evaluating eyewitness accuracy in criminal
cases.
II. THE CURRENT STATE OF THE LAW
Between 1967 and 1977, the United States Supreme Court rendered
several decisions that considered the constitutional implications of various
identification procedures. The Court has not rendered any significant
decisions on identification procedures since then. As a result, certain
principles are firmly established in the case law, while other issues are
addressed only briefly or not at all.
A. Pretrial and In-Court Identifications: Legal Categories and Principles
In the typical criminal case in which the defendant denies he or she
was the perpetrator, two evidentiary issues will generally arise whenever
the prosecutor calls an eyewitness at trial.20 First, will the prosecutor be
permitted to elicit testimony about the eyewitness’s pretrial
identification(s) of the defendant?21 Second, will the eyewitness be
permitted to make an in-court identification during the trial?22 These
20
Similar issues sometimes arise regarding an eyewitness’s ability to recognize and identify a
defendant’s voice, but that subject is beyond the scope of this Article. For a detailed discussion of this
topic, see CLIFFORD S. FISHMAN & ANNE T. MCKENNA, 2 WIRETAPPING & EAVESDROPPING:
SURVEILLANCE IN THE INTERNET AGE §§ 38:4–38:5 (3d ed. 2008).
21
Such testimony might come from the eyewitness or from the police officer who conducted the
pretrial identification procedure, or both.
22
The in-court identification may be a moment of high drama, but its evidentiary value is suspect
because anyone familiar with an American courtroom will, in most cases, be able to identify the
defendant simply by observing where he or she is sitting.
444
[Vol. 42:435
23
issues are generally resolved in a hearing prior to the trial.
The Supreme Court has long been aware of the dangers posed by
suggestive identification procedures.24 Yet, rather than create a single set
of rules and standards to govern such cases, the Court has divided
identification issues into two categories, one quite narrow and the other
quite broad, and has applied very different legal principles to each. The
narrow category involves only pretrial identification procedures which (a)
were corporeal in nature, i.e., the witness viewed the defendant “live”; (b)
were conducted after the defendant was arraigned on the charge in
question; and (c) were conducted in the absence of the defendant’s
attorney. The second, broader category includes all other pretrial
identification procedures: corporeal identifications prior to arraignment
and photo identifications, whether before or after arraignment.
1. Corporeal, Post-Arraignment Identifications Held in the Absence
of Counsel: United States v. Wade and Gilbert v. California
Once a defendant has been arraigned, the defendant enjoys the right,
guaranteed by the Sixth Amendment, to have counsel present during all
“critical stages” of the case, whether they occur prior to or during the
trial.25 In 1967, in United States v. Wade26 and Gilbert v. California,27 the
Supreme Court held that a lineup or other identification procedure in which
the defendant is forced to participate is a “critical stage,” and that to hold
such a lineup in the absence of defense counsel violates that right.28
If that right is violated, the Court held that the prosecutor is not
23
See discussion infra Part II.C.
“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife
with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967); see also
Manson v. Brathwaite, 432 U.S. 98, 107 (1977); Neil v. Biggers, 409 U.S. 188, 199–200 (1972);
Stovall v. Denno, 388 U.S. 293, 301–02 (1967); Gilbert v. California, 388 U.S. 263, 264 (1967).
25
The Court first used the phrase “critical stage” in connection with the right to counsel in Parker
v. Illinois, 333 U.S. 571, 575 (1948), and first specified that counsel must be provided to a defendant at
a “critical stage” of a criminal prosecution in Hamilton v. Alabama, 368 U.S. 52, 54–55 (1961). The
phrase occurs with regularity in discussions of the right to counsel: a December 2008 Westlaw search
of the Supreme Court database, “‘critical stage’ w/p counsel attorney,” produced 65 “hits.”
26
Wade was convicted of robbing a federally insured bank. Wade, 388 U.S. at 218.
27
Gilbert was convicted of robbing a state bank, and of murdering a police officer who happened
to enter the bank during the robbery. Gilbert, 388 U.S. at 263.
28
Wade, 388 U.S. at 236–37; Gilbert, 388 U.S. at 272. “[T]he confrontation compelled by the
State between the accused and the victim or witnesses to a crime to elicit identification evidence is
peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially,
derogate from a fair trial.” Wade, 388 U.S. at 228. After discussing the risks of misidentification and,
particularly, the risks involved in suggestive identification procedures, the Court commented:
It is a matter of common experience that, once a witness has picked out the accused
at the line-up, he is not likely to go back on his word later on, so that in practice the
issue of identity may (in the absence of other relevant evidence) for all practical
purposes be determined there and then, before the trial.
Id. at 229 (citation omitted).
24
2009]
445
29
permitted to elicit testimony about the lineup at trial.
Moreover, an
eyewitness who identified the defendant at a post-arraignment lineup
conducted in the absence of counsel will not be permitted to make an incourt identification at trial, unless the prosecutor can “establish by clear
and convincing evidence that the in-court identifications were based upon
observations of the suspect other than the lineup identification.”30 In other
words, the prosecutor must establish by clear and convincing evidence that
the eyewitness remembered the defendant from the crime itself and was
not relying on his or her memory of the lineup to make the in-court
identification.31
2. All Other Pretrial Identification Procedures: The “Due Process”
Standard
In subsequent decisions, the Supreme Court has considered the
constitutional implications of identification procedures in a variety of
contexts not covered by the Wade and Gilbert decisions.
In Kirby v. Illinois, police conducted a pre-arraignment one-person
corporeal “showup.”32 The Court declined to apply the Wade-Gilbert rule
to this situation because the Sixth Amendment right to counsel does not
exist prior to arraignment.33 Instead, the Court enunciated a different test,
based on the Due Process Clause of the Fifth and Fourteenth
Amendments.34 In United States v. Ash, the Court likewise declined to
apply the Wade-Gilbert rule to a post-arraignment use of a photo array35
because the use of photos does not involve an actual, live “confrontation”
between the defendant and law enforcement officials and their witnesses.36
29
“Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that
law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel
at the critical lineup.” Gilbert, 388 U.S. at 273.
30
Wade, 388 U.S. at 240.
31
See id. at 242.
32
Kirby v. Illinois, 406 U.S. 682, 684–85 (1972). In a “showup” the eyewitness is only shown
the suspect. In contrast, in a lineup, the suspect is one of several people standing in an array, and the
eyewitness is asked if the perpetrator is in the lineup. See Neil v. Biggers, 409 U.S. 188, 198 (1972).
In Kirby, a police officer escorted a robbery victim to a room in a police station where Kirby, a
codefendant, and two police officers were seated. The escorting officer asked if they were the robbers
and the victim said that they were. Kirby, 406 U.S. at 684–85.
33
Kirby, 406 U.S. at 689–90. Four Justices dissented, with Justice Brennan accusing the plurality
of valuing the “mere formalism” of the pre- vs. post-arraignment distinction over what he considered
the fundamental unfairness of the result the Court permitted. Id. at 698–99 (Brennan, J., dissenting)
(citations omitted).
34
The Court held that due process of law “forbids a lineup that is unnecessarily suggestive and
conducive to irreparable mistaken identification.” Id. at 691.
35
A photo array is like a lineup; an eyewitness is shown photographs of several individuals and is
asked whether the perpetrator’s picture is among them.
36
United States v. Ash, 413 U.S. 300, 314 (1973). The Court also cited a second reason: defense
counsel has no right to be present when a prosecutor prepares his or her eyewitnesses to testify, and
showing photographs to an eyewitness was simply one aspect of such preparation. Id. at 317–18.
Justice Brennan, joined by Justices Marshall and Douglas, dissented: “[T]oday’s decision marks
simply another step towards the complete evisceration of the fundamental constitutional principles
446
[Vol. 42:435
In Simmons v. United States and Manson v. Brathwaite, the Court
considered the constitutional implications of pre-arraignment, highly
suggestive photograph identifications.37 In Simmons,38 the Court held that
a due process test should be applied to determine whether the suggestive
pretrial procedure should prohibit the eyewitness from making an in-court
identification at trial.39 In Brathwaite, the Court held that even if the photo
identification was highly and unnecessarily suggestive,40 a due process test
should be applied to assess the admissibility of both the pretrial and incourt identifications.41
In Neil v. Biggers, a pre-indictment, corporeal showup case,42 the Court
issued its most elaborate commentary on “the relationship between
suggestiveness and misidentification,”43 and on the due process to be
applied in cases not covered by the Sixth Amendment Wade-Gilbert rule.
As to “suggestiveness,” the Court stated:
It is, first of all, apparent that the primary evil to be avoided
is “a very substantial likelihood of irreparable
misidentification.” While the phrase was coined as a
standard for determining whether an in-court identification
would be admissible in the wake of a suggestive out-of-court
identification, with the deletion of “irreparable” it serves
equally well as a standard for the admissibility of testimony
concerning the out-of-court identification itself. It is the
likelihood of misidentification which violates a defendant’s
right to due process. . . . Suggestive confrontations are
disapproved because they increase the likelihood of
misidentification, and unnecessarily suggestive ones are
established by this Court, only six years ago, in United States v. Wade.” Id. at 326 (Brennan, J.,
dissenting) (footnote and citations omitted). The first step, in Justice Brennan’s view, was the Kirby
decision. See id. at 326 n.1.
37
See Simmons v. United States, 390 U.S. 377, 381–82 (1968); Manson v. Brathwaite, 432 U.S.
98, 103–04 (1977).
38
Shortly after a bank robbery, Simmons became a suspect. FBI agents obtained from relatives
several photos of Simmons and others and showed them to eyewitnesses, who identified him as one of
the robbers. Simmons, 390 U.S. at 380–81. At trial, the eyewitnesses made in-court identifications, but
the prosecutor did not offer evidence about the pretrial photo identifications. Id. at 382.
39
Id. at 384.
40
An undercover officer purchased narcotics from a man he had never seen before, then described
him to a back-up officer. That officer, believing Brathwaite fit the description, left a mug shot of
Brathwaite for the undercover officer, who identified him as the seller. Brathwaite, 432 U.S. at 99–
101.
41
Id. at 113–14.
42
Seven months after she was raped by a stranger, the complainant identified the defendant at a
station-house showup. She had gotten a good look at the perpetrator during her ordeal, and in the
intervening time, had viewed, in showups, lineups, and photographs, numerous other suspects, without
identifying any of them. The police conducted a showup of Biggers after making efforts to find lookalikes for a lineup, efforts which the Supreme Court found unimpressive. Neil v. Biggers, 409 U.S.
188, 193–95, 199 (1972).
43
Id. at 198.
2009]
447
condemned for the further reason that the increased chance of
misidentification is gratuitous. But . . . the admission of
evidence of a showup without more does not violate due
process.44
The Court also delineated in Biggers five factors that should be considered
in assessing whether the facts present “a very substantial likelihood of
irreparable misidentification”45 and based on these factors concluded that it
did not. Thus, it held that testimony about the showup and the in-court
identification were both admissible, despite the unnecessarily suggestive
nature of the showup.46 The Court subsequently affirmed the Biggers rule
in Brathwaite, its most recent significant identification case.47
In essence, therefore, the due process standard is an all-or-nothing test.
If the pretrial identification process for an eyewitness was suggestive and
the totality of the circumstances convinces the judge that it created a
substantial likelihood of misidentification, then no evidence of that
eyewitness’s pretrial identification of the defendant can be introduced at
trial; nor can that eyewitness make an in-court identification of the
defendant.48 On the other hand, if the judge concludes that the eyewitness
made the identification based on his memory of the crime, then even if the
pretrial identification procedure was suggestive, the judge will deny the
motion, and permit both testimony about the eyewitness’s pretrial
identification of the defendant, and the in-court identification.49
3. The Supreme Court’s Discussion of Accuracy Factors
In Neil v. Biggers and Manson v. Brathwaite, the Supreme Court held
that the reliability of an eyewitness’s identification is to be determined by
the “totality of the circumstances.”50 In these decisions, the Supreme Court
delineated five eyewitness factors that the trier of fact should consider
when evaluating eyewitness accuracy: (1) the eyewitness’s opportunity to
44
Id. at 198 (quoting Simmons, 390 U.S. at 384). The prosecutor in Simmons did not offer
evidence of the photo identification.
45
Biggers, 409 U.S. at 198; see infra text accompanying note 50 (setting forth the “totality of the
circumstances” test from Biggers and Brathwaite).
46
Biggers, 409 U.S. at 198–99.
47
Manson v. Brathwaite, 432 U.S. 98, 106, 113–14 (1977). See supra notes 40–41 and
accompanying text (describing the facts of the case and the holding).
48
The Court found identification procedures to violate due process in Foster v. California. 394
U.S. 440, 443 (1969). An eyewitness failed to identify Foster the first time he confronted him, despite
a suggestive lineup, and could only make a tentative identification at a showup, then made a positive
identification at yet another lineup. The Court held it was error to allow any identification testimony in
the case. Id. at 442–43.
49
Thus, in Kirby, Biggers, and Brathwaite, the Court held that, despite suggestiveness, pretrial
and in-court identifications were both permissible. See Kirby v. Illinois, 406 U.S. 682, 690 (1972);
Biggers, 409 U.S. at 199–200; Brathwaite, 432 U.S. at 115–16. In Foster, by contrast, the Court held
that neither should have been admitted. Foster, 394 U.S. at 442–43.
50
Brathwaite, 432 U.S. at 113 (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)); Biggers,
409 U.S. at 199.
448
[Vol. 42:435
view the perpetrator during the crime; (2) the length of time between the
crime and the subsequent identification; (3) the level of certainty
demonstrated by the witness at the identification; (4) the accuracy of the
eyewitness’s prior description of the criminal; and (5) the eyewitness’s
degree of attention during the crime.51 In the years immediately following
these decisions, courts in most states adopted the approach enunciated in
Biggers and Brathwaite.52
B. Assessment of the Supreme Court’s Approach to Eyewitness Error
In its case law concerning eyewitness identifications, the Supreme
Court considered four issues. First, when does a defendant have a right to
the presence of counsel at an eyewitness identification procedure? Second,
what rule should govern the admissibility of an unnecessarily suggestive
eyewitness identification procedure? Third, what factors should a court
consider in deciding whether to admit testimony about a pretrial
eyewitness identification, and an in-court identification of the defendant by
the eyewitness? Fourth, what burden of proof should the prosecutor satisfy
to secure the admissibility of eyewitness identifications? We will not
address the first issue in this Article.53
As to its resolution of the other three issues, the Court’s decisions
about them predated the vast majority of scientific research on eyewitness
testimony.54 For example, the factors listed in Biggers and Brathwaite
“constitute ‘educated guesses’ by the Court on how [these five eyewitness
factors] affect identification accuracy.”55 Subsequent scientific research
has shown that many of these five factors do not affect eyewitness
51
Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199–200.
See, e.g., State v. Bracy, 703 P.2d 464, 474 (Ariz. 1985); Chism v. State, 853 S.W.2d 255, 261
(Ark. 1993); People v. Clark, 833 P.2d 561, 612 (Cal. 1992); People v. Weller, 679 P.2d 1077, 1083
(Colo. 1984); State v. Miller, 522 A.2d 249, 253–54 (Conn. 1987); Younger v. State, 496 A.2d 546,
550 (Del. 1985); Turner v. United States, 622 A.2d 667, 672 (D.C. 1993); State v. Bennett, 610 P.2d
502, 507–08 (Haw. 1980); State v. Hoisington, 657 P.2d 17, 25 (Idaho 1983); People v. Miller, 626
N.E.2d 1350, 1356–57 (Ill. App. Ct. 1993); Hamlet v. State, 490 N.E.2d 715, 720 (Ind. 1986); State v.
Hunt, 69 P.3d 571, 575 (Kan. 2003) (citing Holden v. State, 602 P.2d 452, 455–56 (Alaska 1979));
State v. Warren, 635 P.2d 1236, 1240–41 (Kan. 1981); Wilson v. Commonwealth, 695 S.W.2d 854,
857 (Ky. 1985); State v. Robinson, 386 So. 2d 1374, 1377 (La. 1980); State v. Rolls, 599 A.2d 421,
423 (Me. 1991); State v. Johnson, 674 P.2d 1077, 1079 (Mont. 1983); State v. Whittey, 591 A.2d 1326,
1327–28 (N.H. 1991); State v. Maes, 665 P.2d 1169, 1173 (N.M. 1983); State v. Richardson, 402
S.E.2d 401, 404–05 (N.C. 1991); State v. Packineau, 423 N.W.2d 148, 149–50 (N.D. 1988); State v.
Classen, 590 P.2d 1198, 1203–04 (Or. 1979); State v. Gomes, 604 A.2d 1249, 1253 (R.I. 1992); State
v. Stewart, 272 S.E.2d 628, 629–30 (S.C. 1980); Collins v. State, 626 So. 2d 991, 992 (Fla. Dist. Ct.
App. 1993); State v. Short, 698 S.W.2d 81, 83 (Tenn. Crim. App. 1985); State v. Maupin, 822 P.2d
355, 360–61 (Wash. Ct. App. 1992); State v. Mosley, 307 N.W.2d 200, 210 (Wis. 1981).
53
We believe the Court decided this issue correctly. The Sixth Amendment right to counsel
attaches only after arraignment and should not be read to require a prosecutor to invite defense counsel
to his office during the prosecutor’s pretrial preparations with an eyewitness. See supra note 31. This
issue, however, is beyond the scope of this Article, and no further discussion of it is offered herein.
54
Wise et al., Tripartite Solution, supra note 19, at 815.
55
Id.
52
2009]
449
56
accuracy the way the Supreme Court believed they do. These five factors
are also deficient because they do not include many other eyewitness
factors that affect eyewitness accuracy.57 Additional serious flaws in
Biggers and Brathwaite include that: (1) the decisions do not take into
account how the eyewitness interviews impacted eyewitness accuracy; (2)
the decisions mistakenly assume that in all cases it can be determined
whether an identification from a suggestive identification procedure is
reliable; (3) three of the criteria (certainty, view, and attention) are selfreported by the eyewitness, and a suggestive identification procedure can
increase an eyewitness’s confidence, cause the eyewitness to believe that
he or she paid more attention to the perpetrator during the crime, and had a
better view of the crime than he or she actually had;58 and (4) the decisions
ignore that both eyewitness memory and confidence are highly malleable.59
This theme is developed more fully in Parts III and VII of this Article.
In sum, the due process standard and procedures the Supreme Court
promulgated in Kirby, Ash, Biggers, and Brathwaite for assessing
identification accuracy in criminal cases, including its five factor test, are
seriously flawed and in fact may contribute to, rather than reduce, the
number of wrongful convictions.60
In recognition of these flaws and shortcomings, a number of states
have moved away from the Supreme Court’s due process approach.61
Some state courts, applying their state constitution’s due process clause,
have revised the Biggers-Brathwaite standards.62 Other states have
56
Id. at 816–18.
Id. at 818–19.
Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the
Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 L. & HUM. BEHAV.
1, 1 (2009).
59
See discussion infra Part VI (addressing the importance of analyzing eyewitness interviews to
determine if law enforcement obtained the maximum amount of information from the eyewitness,
contaminated the eyewitness’s memory of the crime, or increased the eyewitness confidence, and why
the harmful effects of a biased eyewitness interview or identification procedure cannot be corrected).
60
61
The discussion in the rest of this paragraph is based in part on Wells & Quinlivan, supra note
58, at 18–21.
62
For example, in State v. Long, Utah’s Supreme Court observed that “several of the criteria
listed by the Court are based on assumptions that are flatly contradicted by well-respected and
essentially unchallenged empirical studies.” 721 P.2d 483, 491 (Utah 1986). Relying on the due
process clause of the state constitution, the court adopted a somewhat different list of factors:
(1) the opportunity of the witness to view the actor during the event; (2) the
witness’s degree of attention to the actor at the time of the event; (3) the witness’s
capacity to observe the event, including his or her physical and mental acuity; (4)
whether the witness’s identification was made spontaneously and remained
consistent thereafter, or whether it was the product of suggestion; and (5) the nature
of the event being observed and the likelihood that the witness would perceive,
remember and relate it correctly. This last area includes such factors as whether the
event was an ordinary one in the mind of the observer during the time it was
observed, and whether the race of the actor was the same as the observer’s.
57
58
450
[Vol. 42:435
63
rejected the Kirby-Ash-Brathwaite due process doctrine and applied the
Wade approach to all pretrial identification procedures, those conducted
before as well as after the right to counsel has attached: If the pretrial
procedure was unnecessarily suggestive, testimony about it is excluded per
se, and the eyewitness is permitted to make an in-court identification only
if the prosecution establishes by clear and convincing evidence that the
eyewitness will be able to make the identification at trial based solely on
his or her memory of the crime itself, independent of the suggestive
pretrial procedure.64
As the rest of this Article demonstrates, this latter approach is much
more consistent with what is now known about human memory and
eyewitness identifications, and therefore is far more consistent with the
ultimate goals of the criminal justice system: to convict those who are
guilty, and avoid convicting those who are innocent.65
C. How Eyewitness Issues Are Litigated66
Soon after a defendant is arraigned, the defense attorney files a motion
for discovery.67 Included in the motion is a request for information about
Id. at 493. Although similar in some respects to the Biggers-Brathwaite list, this test differs
dramatically in some ways. For example, it eliminates as a factor “the level of certainty demonstrated
by the witness at the confrontation” and places much greater emphasis on the suggestiveness of the
identification procedure. Neil v. Biggers, 409 U.S. 188, 199 (1972). In Long, the court held that the
trial judge should instruct the jury about these factors in evaluating eyewitness identification. Long,
721 P.2d at 487. In State v. Ramirez, the Court held that if the identification procedure was highly
suggestive, the trial judge should consider these factors in deciding whether to admit such testimony at
all. 817 P.2d 774, 782–83 (Utah 1991). In State v. Hunt, the Kansas Supreme Court adopted Utah’s
Ramirez approach. 69 P.3d 571, 576–77 (Kan. 2003). Massachusetts’s highest court likewise rejected
the Biggers-Brathwaite factors. In Commonwealth v. Johnson, the court rejected Manson v. Brathwaite
and instructed state courts to continue to apply the following factors: (1) the extent of the witness’s
opportunity to observe the defendant at the time of the crime; prior errors, if any, in (2) description, (3)
identifying another person, or in (4) failing to identify the defendant; (5) the receipt of other
suggestions, and (6) the lapse of time between the crime and the identification. 650 N.E.2d 1257,
1261–62 (Mass. 1995). Thus, Massachusetts has also rejected the eyewitness’s degree of certainty as a
relevant factor.
63
For discussion of this doctrine, see supra Part II.A.2.
64
Johnson, 650 N.E.2d at 1261; People v. Riley, 517 N.E.2d 520, 525 (N.Y. 1987); State v.
Dubose, 699 N.W.2d 582, 596 (Wis. 2005); see also State v. Herrara, 902 A.2d 177, 182 (N.J. 2006)
(hinting that the court considered the issue a valid one but declining to address it because the defendant
had failed to raise it at trial).
65
Generally, if an eyewitness’s memory is contaminated by a suggestive or biased identification
procedure, the error cannot be correct by subsequently conducting a fair lineup. See infra Parts V, IX.
Consequently, there are very limited circumstances where the prosecutor will be able to show that the
eyewitness’s in-court identification of the defendant is not tainted by the prior, biased out of court
identification procedure. See infra Part V.
66
This section is based on Professor Fishman’s and Professor Wise’s experiences as prosecutors,
and on Professor Fishman’s discussion of the matter with current prosecutors, defense attorneys, and
judges, and his reading of more court opinions on the subject than he cares to remember, let alone
count. The procedures described herein will vary slightly from jurisdiction to jurisdiction, but the basic
outline is the same.
67
See, e.g., FED. R. CRIM. P. 16 (setting forth the rules for information subject to disclosure).
2009]
451
any and all pretrial identifications of the defendant by any eyewitness. In
response, the prosecutor informs defense counsel of the details: which
eyewitnesses identified the defendant, the kind of procedure used, and so
on.68 At an appropriate time prior to trial, defense counsel moves to
suppress the eyewitness evidence. Where there have been pretrial
identifications, the motion will allege that the identifications were
suggestive, and will lead to a misidentification at trial. The defense
attorney will request that the judge suppress testimony about the pretrial
identifications and also preclude the eyewitnesses from making in-court
identifications.69 Often the judge will order a hearing on the motion.70
If the eyewitness testifies at the hearing,71 the prosecutor will ask the
eyewitness questions designed to establish that the eyewitness had a good
opportunity to see the perpetrator (e.g., time, lighting), to note his or her
appearance, and to fix it firmly in the eyewitness’s mind.72 The prosecutor
will then ask the eyewitness to describe the identification procedure, again
structuring his or her questions to elicit the strongest impression of nonsuggestiveness that the facts legitimately allow. Ideally, the eyewitness
will testify that as soon as he or she saw the defendant, the eyewitness
recognized the defendant as the perpetrator, based on the eyewitness’s
memory of seeing the defendant commit the crime; that the eyewitness was
sure that his or her identification was accurate; and that he or she so
informed the officer.
On cross-examination, defense counsel will seek to undercut each
aspect of the eyewitness’s direct testimony. Defense counsel may
challenge the eyewitness’s estimation of how long he or she had an
opportunity to view the defendant, and question whether the eyewitness’s
powers of perception or memory were diminished by drink, drugs, lack of
sleep, fear, focus on a weapon, or other distractions. The defense attorney
may emphasize any discrepancies between the description the eyewitness
68
In some jurisdictions, prosecutors provide this information voluntarily, without requiring
defense counsel to file a motion.
69
Defense counsel will file a motion to suppress whether the procedure involved was absurdly
and unnecessarily suggestive, or apparently was as completely non-suggestive and as perfect as is
humanly possible. This occurs because, even if the judge ultimately denies the motions to suppress
(which, as every trial lawyer and judge knows, is the result in the vast majority of cases), a hearing on
the motion will require the prosecutor to call at least some of his or her witnesses at the hearing, and
give defense counsel an opportunity to cross-examine them—a type of pretrial discovery that, though
common in civil litigation, is fairly unusual in criminal cases.
70
In some jurisdictions, the defendant is entitled to a hearing as a matter of course. In others, the
judge will grant a hearing only if defense counsel first submits affidavits or other proof that make out a
prima facie case that the pretrial identification was suggestive.
71
The prosecutor may decide not to call an eyewitness at the hearing to prevent the defense
attorney from discovering the eyewitness’s testimony prior to trial, relying instead on the testimony of
the police officers who conducted the identification procedure. Some jurisdictions, however, may
permit the defense attorney to call the eyewitness to testify at the hearing if the prosecutor does not.
72
To the extent that it will be helpful, the prosecutor’s questions will track the reliability factors
discussed by the Supreme Court in Biggers and Brathwaite. See supra text accompanying note 51.
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gave to the police and the defendant’s actual appearance. Counsel may
probe for evidence of suggestiveness in the lineup, showup, or photo
identification. Counsel may question the eyewitness about any previous
lineups, showups, or photo identifications at which the eyewitness picked
out someone else as the perpetrator.73
If the procedure was a lineup, the prosecutor may introduce a
photograph or video of the lineup to impress upon the judge that it was fair
and non-suggestive. If the eyewitness was shown a number of photographs
in addition to the defendant’s, the prosecutor, for the same reason, may
introduce the entire photo array into evidence.
Depending on the circumstances, one or more officers who conducted
the identification procedure may also testify.74 If the identification
procedure was a corporeal one, defense counsel may put the defendant on
the stand at the hearing to contest the prosecutor’s version of how the
lineup or showup was conducted. Occasionally, other eyewitnesses may
be available to contradict the prosecutor’s eyewitnesses’ description of the
identification procedure. After both sides rest and argue the issues, the
judge, applying the appropriate standard (Wade-Gilbert or due process),
will rule on what identification testimony, if any, the eyewitness will be
permitted to give.
D. Expert Testimony Regarding Eyewitness Identification
For decades, psychologists and defense attorneys have maintained that
eyewitness testimony can be notoriously unreliable, and courts, including
the United States Supreme Court, have recognized this fact.75 The
development of DNA evidence has confirmed what many observers and
participants in the criminal justice system have long suspected, namely,
that the number of innocent people who are convicted of crimes is
distressingly high, and in many such cases, eyewitness identification
testimony played a significant role in their wrongful convictions.
To combat such testimony, defense attorneys have sought to introduce
expert testimony outlining the weaknesses and shortcomings of eyewitness
testimony.76 There is sharp division among courts whether such testimony
meets the requirements governing expert evidence.
As a general rule, expert testimony on any given subject is admissible
73
On the other hand, if it is obvious that the judge will deny the motion to suppress identification
evidence at trial, defense counsel may not use some of this information at the hearing, hoping to
surprise the eyewitness and the prosecutor with it at the trial itself.
74
If the prosecutor decides not to call the officer as a witness at the hearing, defense counsel may
choose to do so.
75
76
For a detailed discussion of the law governing admissibility of expert testimony concerning
eyewitness identification, see CLIFFORD S. FISHMAN & ANNE T. MCKENNA, JONES ON EVIDENCE §§
41:41–41:48 (7th ed., Appendix of New Chapters, 2008).
2009]
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77
only if several criteria are satisfied.
First, the subject matter of the
testimony must be one recognized as a valid one for expert testimony,
based on reliable principles and methodology.78 Second, the expert must
be qualified as an expert on that subject.79 Third, the expert’s testimony
must have an adequate factual basis.80 Fourth, the expert must apply “the
principles and methods reliably to the facts of the case.”81 Finally, the
testimony must “assist the trier of fact to understand the evidence or to
determine a fact in issue . . . .”82
Courts generally accept that a properly qualified expert can satisfy the
first four requirements.83 But many courts have been reluctant to admit
expert testimony on the weaknesses of eyewitness testimony. Courts cite
two reasons to justify this reluctance. First, many courts have held that
that such testimony “will not aid the jury because it addresses an issue of
which the jury already generally is aware, and it will not contribute to their
understanding of the particular factual issues posed.”84 Second, comments
can be found throughout the case law that the “proposed testimony intrudes
too much on the traditional province of the jury to assess witness
credibility.”85 The perceived risk, that the jury will be confused or place
undue emphasis on the expert’s testimony, is therefore seen as outweighing
what is viewed as the limited probative value of the evidence.
Courts that accept this reasoning appear to give jurors both too much
credit, and not enough. Such reasoning ignores scientific research showing
that jurors have limited knowledge of eyewitness factors and that the effect
of many factors on eyewitness accuracy is not a matter of common sense.86
It also reflects concern that wily experts will induce naïve and susceptible
jurors to reject eyewitness testimony that is reliable. Furthermore, it
ignores jurors’ tendency to be skeptical of experts, especially defense
experts, whose testimony goes against what they consider simple common
77
See, e.g., FED. R. EVID. 702 (identifying the elements necessary for expert testimony to be
admitted into evidence).
78
Thus, in the language of Federal Rule of Evidence 702, the subject of the testimony must
consist of “scientific, technical, or other specialized knowledge [that is] . . . the product of reliable
principles and methods . . . .” FED. R. EVID. 702.
79
See id. (“[The] witness [must be] qualified as an expert by knowledge, skill, experience,
training, or education . . . .”).
80
See id. (“[T]he testimony [must be] based upon sufficient facts or data . . . .”).
81
Id.
82
Id.
83
See FISHMAN & MCKENNA, supra note 76, § 41:44.
84
United States v. Daniels, 64 F.3d 311, 315 (7th Cir. 1995) (quoting United States v. Larkin, 978
F.2d 964, 971 (7th Cir. 1992)); see also State v. Lawhorn, 762 S.W.2d 820, 823 (Mo. 1988) (“[T]he
introduction of expert testimony would be ‘a superfluous attempt to put the gloss of expertise, like a bit
of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.”
(citation omitted)).
85
United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999).
86
Michael R. Leippe, The Case for Expert Testimony About Eyewitness Testimony, 1 PSYCHOL.
PUB. POL’Y & L. 909, 921 (1995); Wise et al., Tripartite Solution, supra note 19, at 824–25.
454
[Vol. 42:435
87
sense.
A number of courts, however, have held that it is an abuse of discretion
to exclude expert testimony about eyewitness identifications where the
prosecutor’s case rests solely or primarily on eyewitness identification,
particularly if it is of uncertain accuracy or sharply contested.88
Furthermore, as Fishman and McKenna state:
Even where a court is receptive to such testimony, it is
generally agreed that the most that should be permitted is
general testimony about the relevant types of difficulties with
eyewitness testimony and that an expert witness should not
be permitted to give an opinion on the accuracy of a
particular eyewitness’s testimony, on the ground that such
testimony
constitutes
impermissible
comment
on
credibility.89
III. THE CAUSES OF EYEWITNESS ERROR
There are several reasons why an eyewitness’s testimony can be
erroneous even though, like Jennifer Thompson, the eyewitness is
87
CHARLES PATRICK EWING, TRIALS OF A FORENSIC PSYCHOLOGIST: A CASEBOOK 18 (2008)
(“[I]n criminal trials jurors often regard prosecution witnesses as objective professionals doing a public
service, while they see defense experts as hired guns who would say anything for the right amount of
money.”).
88
See Skamarocius v. State, 731 P.2d 63, 66–67 (Alaska Ct. App. 1987) (noting that
corroboration may come from substantial physical evidence or a codefendant’s confession); People v.
McDonald, 690 P.2d 709, 726 (Cal. 1984) (en banc), overruled in part by People v. Mendoza, 4 P.3d
265 (Cal. 2000); People v. Sanders, 905 P.2d 420, 435 (Cal. 1995); Cook v. State, 734 N.E.2d 563, 571
(Ind. 2000); State v. Schutz, 579 N.W.2d 317, 320 (Iowa 1998) (holding that it is within the trial
judge’s discretion to admit such testimony); Commonwealth v. Santoli, 680 N.E.2d 1116, 1119–20
(Mass. 1997) (noting that when corroborating evidence is available, the exclusion of expert testimony
is not an abuse of discretion); State v. Abraham, 451 S.E.2d 131, 148–49 (N.C. 1994) (holding that
where substantial evidence corroborates eyewitness identification, it is not an abuse of discretion to
deny defense counsel’s request that the court appoint an expert witness on eyewitness identification);
People v. Lee, 750 N.E.2d 63, 66–67 (N.Y. 2001) (holding that the trial judge has discretion to admit
such testimony, and that where significant corroborating evidence exists, it is not an abuse of discretion
to reject the expert’s testimony). Even in such cases, however, some courts have opined that problems
with eyewitness identification testimony are unlikely to arise where the eyewitness is a police officer or
someone else trained to observe and professionally accustomed to stressful situations. See, e.g., United
States v. Langan, 263 F.3d 613, 624 (6th Cir. 2001). In Langan, the eyewitness had served in the Air
Force National Guard where “she received training in identifying individuals attempting to enter
unauthorized areas” and on “the need to remain calm and focused during the attempted takeovers.” Id.
The court concluded that, “[i]n light of this specialized training, [the defense expert’s] generalized
testimony regarding such distracting factors as stress and the presence of a gun would not necessarily
have helped the jury in evaluating [the witness’s] identification of Langan.” Id. Similarly, in Webster
v. United States, the court held that expert testimony should not be admitted where the eyewitness was
an undercover police officer with considerable training in recognizing and identifying others. 623 A.2d
1198, 1204 n.15 (D.C. 1993). But see infra Part VIII.A.3. (stating that scientific research shows that
police officers are no better at identifying perpetrators of crimes than lay eyewitnesses).
89
FISHMAN & MCKENNA, supra note 76, § 41:46 (citing State v. Nordstrom, 25 P.3d 717, 731
(Ariz. 2001) (en banc)); see also Johnson v. State, 526 S.E.2d 549, 553 n.3 (Ga. 2000); State v. Buell,
489 N.E.2d 795, 804 (Ohio 1986); State v Hubbard, 48 P.3d 953, 960 (Utah 2002).
2009]
455
testifying in good faith and with a high degree of confidence, and the
police have attempted to conduct a fair and thorough investigation.
A. The Nature of Human Memory
Although human memory can be reasonably accurate, it does not work
like a video camera.90 Consequently, an eyewitness’s memory of a crime
is not stored liked a videotape that the eyewitness can replay to produce an
exact record of the crime. It frequently does not contain the degree of
detail sought by criminal investigators.91 Instead, when an eyewitness
recalls a crime, he or she unconsciously reconstructs his or her memory of
the crime.92 In unconsciously reconstructing his or her memory of the
crime, the eyewitness unknowingly fills in the gaps in his or her factual
memory of the crime based on such factors as the eyewitness’s
expectations, attitude, beliefs, and knowledge of similar events.93 These
different sources of information are automatically blended together in the
90
John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the
Accuracy of Eyewitness Identifications, 7 L. & HUM. BEHAV. 19, 20 (1983); John C. Brigham et al.,
Disputed Eyewitness Identification Evidence: Important Legal and Scientific Issues, 36 CT. REV. 12, 13
(1999) (“Contrary to popular belief, human perception does not work like a camera or video recorder.
Rather, what is perceived and stored in memory is often incomplete or distorted as a result of the
individual’s state of mind or nature of the event observed.”).
91
Daniel L. Schacter, The Seven Sins of Memory: Insights from Psychology and Cognitive
Neuroscience, 54 AM. PSYCHOLOGIST 182, 197 (1999); see also Richard A. Wise et al., A Survey of
Defense Attorneys’ Knowledge and Beliefs About Eyewitness Testimony, CHAMPION, Nov. 2007, at 23
(“Although memory can be reasonably accurate, it frequently does not contain the degree of detail
sought by criminal investigators and is fragile and subject to changes in subtle ways by new
information.”).
92
See CURT R. BARTOL & ANNE M. BARTOL, PSYCHOLOGY AND LAW: THEORY, RESEARCH AND
APPLICATIONS 228 (3d ed. 2004). Bartol and Bartol state that:
Memory, especially for complex or unusual events, involves the integration of
perceptual information with preexisting experiences, as well as with other subjective
relevant information that may be introduced later. In this sense, memory is very
much a reconstructive, integrative process that develops with the flow of new
experiences and thoughts. This perspective is called the reconstructive theory of
memory.
Id.
93
COSTANZO, supra note 1, at 180. For example, researchers conducted a study that determined
that people have shared “scripts” for common types of crimes, such as a convenience store robbery,
bank robbery, or mugging. “Scripts are widely held beliefs about sequences of actions that typically
occur in particular situations.” Id. They found that people’s scripts for a convenience store robbery
consist of the following elements: The robber cases the store, plans the robbery, enters the store,
observes who is in the store, acts like a customer, waits for an opportunity, approaches the cash
register, pulls out a gun, demands money, takes the money, exits the store, and drives away. Id. In a
follow-up study, researchers had participants listen to a mock criminal trial that involved a convenience
store robbery where evidence was omitted for three key elements: the casing of the store, using a gun,
and taking the money. Id. Most participants in the study, nonetheless, erroneously recalled hearing
evidence during the trial that indicated that the three missing elements occurred during the alleged
crime. Id. This study demonstrates that an eyewitness’s expectations, attitudes, beliefs, and knowledge
will influence what an eyewitness perceives, encodes, stores, and retrieves about a crime. Id. at 181;
see also Wise & Safer, supra note 11, at 15 (stating that when witnesses recall crimes, they fill in the
blanks with information based on expectancies and information obtained after the crime).
456
[Vol. 42:435
eyewitness’s memory to produce an account of the crime that is apparently
seamless and coherent but that may contain inaccuracies.94
B. Eyewitness Bias
An eyewitness’s expectations, attitudes, beliefs, and knowledge not
only influence what an eyewitness recalls about a crime, but also what the
eyewitness perceives about a crime.95 For example, if a hair stylist
witnesses a crime, he or she may pay more attention to the perpetrator’s
hair than other eyewitnesses would. In addition, these factors influence
what an eyewitness encodes about a crime.96 Encoding refers to the
process by which an eyewitness transforms what he or she perceives about
a crime into a stored memory.97 Normally, the eyewitness is unaware of
the process of encoding.98
Because encoding involves interpretation and inference, what is stored
in memory is not just what the eyewitness saw during the crime, but also
the meaning the eyewitness gave to what occurred.99 Furthermore, the
meaning that an eyewitness gives to the crime is influenced by his or her
expectations, attitudes, beliefs, and knowledge.100 Factors present during a
crime such as a high level of stress, a weapon, or a disguise may further
hamper an eyewitness’s ability to accurately encode important details of
the crime.101 Forgetting the details of the crime can occur rapidly.102 New
faces, pictures, and events experienced after the crime can also interfere
with the eyewitness’s memory of the crime.103
94
See BARTOL & BARTOL, supra note 92, at 228 (“[E]ven the most well-intentioned eyewitnesses
may err and unconsciously distort their recall and identification. In part, this explains the radically
different accounts of the same event that are provided by witnesses who are ‘absolutely positive’ about
what they saw.”).
95
Id.; Wise & Safer, supra note 11, at 8, 15. There are four stages to memory: perception,
encoding, storage, and retrieval. EDIE GREENE ET AL., WRIGHTSMAN’S PSYCHOLOGY AND THE LEGAL
SYSTEM 129–32 (6th ed. 2007).
96
See Wise & Safer, supra note 11, at 8 (“Expectancies can exert a powerful influence on
attention and recall of relevant information.”).
97
WEITEN, supra note 14, at 205–06.
98
BARTOL & BARTOL, supra note 92, at 228.
99
Id.
100
Id.
101
See Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on
Eyewitness Memory, 28 L. & HUM. BEHAV. 687, 694 (2004); K. E. Patterson & A. D. Baddeley, When
Face Recognition Fails, 3 J. EXPERIMENTAL PSYCHOL.: HUM. LEARNING & MEMORY 406, 410 (1977);
Peter N. Shapiro & Steven D. Penrod, Meta-Analysis of Facial Identification Studies, 100 PSYCHOL.
BULL. 139, 139–51 (1986); Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus
Effect, 16 L. & HUM. BEHAV. 413, 414, 420–21 (1992).
102
See Kenneth A. Deffenbacher, A Maturing of Research on the Behaviour of Eyewitnesses, 5
APPLIED COGNITIVE PSYCHOL. 377, 381 (1991) (“With single-trace fragility theory, trace decay is by
far the greater contributor to forgetting in the first minutes and hours after initial encounter of a face,
but the amount of forgetting due to this source decreases per unit of time.”).
103
WEITEN, supra note 14, at 218.
2009]
457
C. Misinformation Effect
Because an eyewitness’s memory of a crime is a reconstructive
process, it can be altered by information that the eyewitness learns after the
crime from other sources such as other eyewitnesses, the police, the
prosecutor, and the media.104 The eyewitness generally does not know that
his or her memory of the crime has been changed and updated by postevent information, which may or may not be accurate.105 Moreover, the
post-event information not only affects an eyewitness’s memory of the
crime, but it may also impair his or her ability to identify the perpetrator of
the crime.106
D. Source Monitoring Errors
Eyewitnesses can become confused about where they learned
information about a crime or where they saw an individual. Accordingly,
eyewitnesses may misattribute information to observing a crime when in
fact they learned it from another source such as the media, a police officer,
a prosecutor, or another eyewitness.107 They also sometimes identify as the
perpetrator of a crime an individual who was a bystander to the crime or
whom they saw in another situation or context.108 For example, a rape
victim identified a psychologist, Dr. Donald Thompson, as her rapist.109 At
the time of the rape, however, Dr. Thompson was in a television studio
giving a live interview, ironically, about the fallibility of eyewitness
memory.110 The rape victim had seen part of the interview of Dr.
104
Wise et al., Tripartite Solution, supra note 19, at 844–45; see also BARTOL & BARTOL, supra
note 92, at 229 (stating that police officers do not recognize that a person’s memory can be
contaminated by “careless interviewing and misleading commentary”); Ronald P. Fisher, Interviewing
Victims and Witnesses of Crime, 1 PSYCHOL. PUB. POL’Y & L. 732, 740 (1995) (“There is little
argument, however, that the phenomenon of postevent suggestibility exists, that it is robust, and
perhaps most important, that witnesses truly believe that they observed an event that was only
suggested.”).
105
See BARTOL & BARTOL, supra note 92, at 228 (“Moreover, there are ample opportunities for
witnesses to encounter additional information after the event and then integrate it unknowingly into
their original memories.”).
106
See Elizabeth F. Loftus & Edith Greene, Warning: Even Memory for Faces May Be
Contagious, 4 L. & HUM. BEHAV. 323, 333 (1980) (“The verbal expressions and other postevent
information to which a witness is exposed will not only appear in the verbal reports of witnesses but
will also influence future recognition of persons who have been seen before.”).
107
See Schacter, supra note 91, at 188 (“First, people may remember correctly an item or fact
from a past experience but misattribute the fact to an incorrect source. For instance, individuals
sometimes recall encountering a bit of trivia in the newspaper that, in fact, they acquired from the
experimenter.”).
108
See, e.g., COSTANZO, supra note 1, at 178–79 (“Robert Buckhout, one of the first
psychologists to conduct systematic research on eyewitnesses, staged a series of thefts and assaults in
his classroom. Of the students who witnessed the mock crime, 39% showed the unconscious
transference effect. These witnesses incorrectly identified a person who had been in the classroom the
day of the crime.”)
109
Id. at 179.
110
Id.
458
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Thompson and in her memory unconsciously transferred his face from the
interview to the rape.111
E. Hindsight Bias
When an individual knows how an event turned out, this knowledge
affects both the individual’s memory of the event and his or her memory of
what they were thinking when the event occurred.112 Therefore, once an
eyewitness learns that a suspect has been indicted and is going to be tried
for a crime, this information alters an eyewitness’s memory of the crime
and what the eyewitness remembers about what he or she was thinking
when the crime occurred.113
F. Eyewitness Overconfidence in the Accuracy of His or Her Perceptions
and Memory and the Malleability of Eyewitness Confidence
People tend to overestimate the accuracy of their perceptions and
memory.114 Thus, eyewitnesses are likely to be overconfident about the
accuracy of their account of the crime and their identification of the
suspect as the perpetrator of the crime.115 In addition, not only is an
eyewitness’s memory of a crime highly malleable, but so is an
eyewitness’s confidence in the accuracy of his or her memory of the
crime.116 Many factors can increase eyewitness confidence, but do not in
any way improve the accuracy of an eyewitness’s identification.117 For
instance, questioning of an eyewitness by the police and prosecutor,
confirmation feedback from a lineup administrator (e.g., “Good! You have
identified the suspect.”), and learning that another eyewitness has also
identified the suspect all increase an eyewitness’s confidence but not his or
111
Id.
WEITEN, supra note 14, at 230–31.
113
Id.
114
Id. at 231.
115
Id.
116
See Wells et al., Eyewitness Identification Procedures, supra note 12, at 624 (“Confidence
malleability refers to the tendency for an eyewitness to become more (or less) confident in his or her
identification as a function of events that occur after the identification.”).
117
See Michael R. Leippe & Donna Eisenstadt, Eyewitness Confidence and the ConfidenceAccuracy Relationship in Memory for People, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY,
MEMORY FOR PEOPLE 377, 417–18 (Rod C. L. Lindsay et al. eds., 2007). Leippe and Eisenstadt write:
The ready malleability of confidence by feedback, co-witness information,
deliberate or inadvertent communication by police investigators, repeated
questioning, lawyer briefings, and other events make it clear that confidence
statements made following an immediate post-identification confidence judgment
will inevitably be hopelessly undiagnostic of memory accuracy. Short of being
restricted to a hermetically sealed room until the trial, it is hard to imagine an
eyewitness not being subjected to manipulative influences on his or her confidence.
Id.; see also Saul M. Kassin et al., On the “General Acceptance” of Eyewitness Testimony Research, A
New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 410 (2001); Wells et al., From the Lab, supra
note 15, at 586.
112
2009]
459
118
her accuracy.
Post-event information has its greatest effect on the
eyewitness’s confidence in erroneous information.119
The eyewitness is generally unaware that his or her confidence has
been increased by these factors.120 Furthermore, when the eyewitness is
asked at trial how confident he or she was in the accuracy of the
identification at the time of the lineup, the eyewitness tends to report his or
her present level of confidence. Eyewitnesses tend to make this error
because they cannot recall at trial how confident they were in the accuracy
of their identification at the time they made it.121 Artificially increasing
eyewitness confidence can cause wrongful convictions because studies
show eyewitness confidence is generally the most important factor that the
trier of fact relies on when evaluating the accuracy of eyewitness
118
See John S. Shaw III & Kimberley A. McClure, Repeated Postevent Questioning Can Lead to
Elevated Levels of Eyewitness Confidence, 20 L. & HUM. BEHAV. 629, 630 (1996). Shaw and McClure
state:
For example, Wells, Ferguson, and Lindsay found that briefing witnesses about the
nature of an impending cross-examination can lead to higher confidence ratings
during the subsequent examination, and Luus and Wells demonstrated that providing
information to an eyewitness about a co-witness’s identification decision (e.g.,
whom the witness picked from a lineup) can alter that eyewitness’s confidence about
her or his own choice.
Recent research by Shaw suggests that a common police investigation
procedure—repeated questioning of witnesses—may also result in changes in
witness confidence independently of eyewitness accuracy.
Id. (internal citations omitted); see also Gary L. Wells & Amy L. Bradfield, “Good, You Identified the
Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J.
APPLIED PSYCHOL. 360, 374 (1998). “[A] casual comment from a lineup administrator following
eyewitnesses’ identification can have dramatic effects on their reconstructions of the witnessing and
identification experience.” Id. For example, such a comment caused the witness to state that the
defendant’s face “just ‘popped out’ to them, that their memorial image of the gunman is particularly
clear, and that they are adept at recognizing faces of strangers. These effects were very robust, with
effect sizes that exceed what are normally considered large effects in psychology.” Id.
119
See Donald P. Judges, Two Cheers for the Department of Justice’s Eyewitness Evidence: A
Guide for Law Enforcement, 53 ARK. L. REV. 231, 249 (2000) (“Research has found that the
confidence-inflating impact of post-event questioning was the largest for inaccurate responses,
including responses to questions about the witnesses’ memory for an object that did not even exist in
the original event. . . .”).
120
Wells & Bradfield, supra note 118, at 373.
121
Id. at 362. Wells states that:
That is, eyewitnesses do not form clear impressions at the time of the event about
how good or poor their view is, how much attention they are paying, how confident
they are in their identification, and so on. Instead, people’s memories for cognitive
processes operating during an event (in this case the witnessed event as well as the
event of making an identification) are, like other memories, reconstructions. Hence,
answers to these questions are postcomputed (later) by eyewitnesses when the
relevant question is asked of them. When later asked to judge how good their view
was, for example, the eyewitness does not recall an impression or judgment but
rather forms one.
Id.; see also Wells et al., Eyewitness Identification Procedures, supra note 12, at 635–36 (“The only
way to know how confident the eyewitness was at the time of the identification is to have asked the
eyewitness at the time of the identification.”).
460
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122
G. Eyewitnesses Tend to Make a Relative Judgment in Making an
Identification
Eyewitnesses are likely to make a relative judgment when they select a
lineup participant,123 particularly when law enforcement uses a
simultaneous lineup (where all lineup participants are presented at once)
rather than a sequential lineup (where lineup participants are presented
individually).124 In other words, eyewitnesses generally select the lineup
participant who most closely resembles their memory of the perpetrator of
the crime.125 A sequential lineup is more likely to prompt the eyewitness
to compare each participant in the lineup to the eyewitness’s memory of
the perpetrator of the crime (i.e., make an absolute judgment), rather than
compare the participants to each other (i.e., make a relative judgment).126
Relative judgments frequently result in erroneous eyewitness
identification, especially in lineups that do not include the perpetrator of
the crime.127 Eyewitnesses tend to make relative judgments for several
122
Wells et al., Eyewitness Identification Procedures, supra note 12, at 620 (stating that
eyewitness confidence “is the most powerful single determinant of whether or not observers of that
testimony will believe that the eyewitness made an accurate identification”).
123
Wells et al., From the Lab, supra note 15, at 585–86.
124
See id. (“The standard police lineup presents the eyewitness with all lineup members (e.g., six
or eight persons) at one time. Under these conditions, eyewitnesses tend to compare lineup members
with each other to determine which one most closely resembles the perpetrator relative to the others, a
process called relative judgment.”). In contrast, sequential lineups decreased the probability that the
eyewitness will make a relative judgment:
In sequential lineups, the witness views the lineup members one at a time and is
asked to make an identification decision after viewing each one. The witness is
instructed that each lineup member will be presented only once and is not told how
many lineup members will be presented. The lineup stops when the witness
identifies someone or has seen all the lineup members without identifying anyone.
Reliably fewer false identifications are obtained with sequential than with
simultaneous presentation.
Veronica Stinson et al., How Effective Is the Motion-to-Suppress Safeguard? Judges’ Perceptions of
the Suggestiveness and Fairness of Biased Lineup Procedures, 82 J. APPLIED PSYCHOL. 211, 212
(1997); see also discussion infra Part VII.6. (discussing sequential lineups).
125
Wells et al., Eyewitness Identification Procedures, supra note 12, at 613 (“There is good
empirical evidence to indicate that eyewitnesses tend to identify the person from the lineup who, in the
opinion of the eyewitness, looks most like the culprit relative to the other members of the lineup.”).
126
In one study, Lindsay and Wells found that:
Although the eyewitness [viewing a sequential lineup] could decide that the person
being viewed currently looks more like the perpetrator than did the previous person,
the eyewitness cannot be sure that the next (not yet viewed) person does not look
even more like the perpetrator than did the one being viewed currently. Lindsay and
Wells reasoned that this would force eyewitnesses to use a more absolute criterion
(i.e., “Is this the perpetrator or not?”) rather than the relative-judgment criterion (i.e.,
“Is the person more similar to the perpetrator than the other lineup members?”).
Wells et al., From the Lab, supra note 15, at 586.
127
See Rudolf Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence in
Due Process Analysis of Eyewitness Identification Testimony, 88 CORNELL L. REV. 1097, 1104–05
2009]
461
reasons. First, they logically assume that law enforcement would not
conduct a lineup if they did not have a suspect.128 Second, many
eyewitnesses feel pressure from law enforcement, relatives, friends, and
themselves to make an identification.129 In addition, many eyewitnesses
feel like a failure if they cannot make an identification during an
identification procedure.130
H. Lineups Are Frequently Conducted in a Manner that Draws the
Eyewitness’s Attention to the Suspect (e.g., The Lineup-as-Experiment
Analogy)
Scientists have long known that safeguards are necessary to ensure that
they do not unintentionally influence participants in an experiment.131
Unintentional influence is often a problem because people unconsciously
tend to test their hypotheses in a manner that confirms them and because of
the self-fulfilling nature of expectations.132 Thus, scientists implement
safeguards to ensure that the results of their experiments are the product of
the independent variable (i.e., the variable the experimenter manipulates to
try to produce an effect) and not the experimenter’s bias or some other
extraneous factor.133 By analogy, in lineups, the “independent variable” is
the eyewitness’s memory and the desired result is that the eyewitness
either does or does not identify the suspect as the perpetrator of the crime
based solely on his or her memory of the perpetrator of the crime.
Professors Garrioch and Brimacombe explain how a lineup
administrator’s bias that the suspect is the perpetrator can affect the
fairness of a lineup:
Like a researcher with a specific hypothesis (i.e., that a
particular lineup [participant] is the suspect), the detective is
(2003) (stating that erroneous eyewitness identifications decreased forty-three percent when
eyewitnesses were warned prior to the lineup that the perpetrator might not be in the lineup).
128
See Wells et al., Eyewitness Identification Procedures, supra note 12, at 630.
129
Brigham et al., supra note 90, at 15.
130
Gunter Koehnken et al., Forensic Application of Line-Up Research, in PSYCHOLOGICAL
ISSUES IN EYEWITNESS IDENTIFICATION 205, 208–09 (Sigfried Ludwig Sporer et al. eds., 1996).
131
See Judges, supra note 119, at 249–50.
132
Bradfield et al., supra note 12, at 118 (stating that in scientific research, “[t]he only acceptable
safeguard became the ‘double-blind’ experiment, in which neither the experimenter nor the participant
knew what the hypothesis was” and that this safeguard is necessary to prevent the experimenter from
unintentionally influencing the participant to respond in a manner that was consistent with the
experimental hypothesis).
133
See Wells et al., Eyewitness Identification Procedures, supra note 12, at 627 (“The
confirmation bias in human reasoning and behavior is the seed that gives birth to the self-fulfilling
prophecy phenomenon in which a person’s assumption that a phenomenon will happen leads to
behaviors that tend to make the phenomenon happen.”); WEITEN, supra note 14, at 38 (“An
independent variable is a condition or event that an experimenter varies in order to see its impact on
another variable.”); see also id. at 38–40, 48–50 (noting safeguards that scientists use to ensure that the
results of experiments are not influenced by the experimenter’s bias).
462
[Vol. 42:435
now in a position to exert tremendous influence in
administering the lineup.
A lineup administrator’s
knowledge of the suspect’s identity can increase the
likelihood that the witness will identify the suspect.134
Professor Wells and his colleagues further elaborate on how lineups
resemble experiments:
[T]he police have a hypothesis (that the suspect is the
culprit); they collect materials that could be used to test the
hypothesis (e.g., picture of the suspect and filler pictures),
they create a design (e.g., placing suspect’s picture in a
particular position in an array), instruct the subject(s)
(eyewitness or eyewitnesses); run the procedure (show the
lineup to the eyewitness), record the data (identification of
the suspect or not); and interpret the hypothesis in light of the
data (decide whether the identification decision changes their
assessment of whether the suspect is the culprit).135
The lineup-as-experiment analogy helps us to identify procedural
errors in lineups that are likely to cause eyewitness misidentifications.
They include:
[T]he presence of demand characteristics (e.g., pressuring the
eyewitness to make a choice), the influence of confirmation
biases (e.g., asking the eyewitness specifically about the
suspect while not asking those same questions about the
distractors), the facilitation of response biases (e.g.,
encouraging a loose recognition criterion threshold in the
eyewitness), making inferences from small sample sizes (e.g.,
making strong judgments of validity based on only one
eyewitness), not using control groups (e.g., failing to see if
even people who did not witness the crime [but who have the
eyewitness’s description of the perpetrator] can identify the
suspect),[136] selective recording and interpretation of data
(e.g., finding significance in an identification of the suspect,
but ignoring the outcome if the eyewitness makes a nonidentification), leaking of the hypothesis (e.g., making it
134
Lynn Garrioch & C.A. Elizabeth Brimacombe, Lineup Administrators’ Expectations: Their
Impact on Eyewitness Confidence, 25 L. & HUM. BEHAV. 299, 300 (2001) (internal citations omitted).
135
136
Id. Among other concerns, Wells and his colleagues mention the use of “mock witnesses” as a
solution to the problem of biased lineups: “Mock witnesses are people who have never seen the culprit
but are given the eyewitness’s verbal description of the culprit, shown a picture of the lineup or
photospread, and asked to select the person they think is the suspect in the case.” Id. at 631. If after
reading the eyewitness’s description of the perpetrator the mock witnesses select the suspect from the
photo array at greater levels than chance, the lineup is likely biased.
2009]
463
obvious to the eyewitness which person in the lineup is the
suspect), and a host of other possible confounds.137
Accordingly, to avoid eyewitness error, law enforcement must conduct
lineups so that an eyewitness identification of a suspect is a product of the
eyewitness’s memory and not how the lineup was conducted.138
It is also useful to view eyewitness evidence as a type of trace evidence
such as fingerprints, DNA, and firearm patterns.139 Similar to other types
of trace evidence, eyewitness evidence has a physiological basis (i.e.,
biochemical changes in the eyewitness’s brain).140 Therefore, its accuracy
depends in part on the use of proper scientific procedures to extract the
evidence.141 In sum, before ruling on the admission of eyewitness
evidence at trial, a judge should evaluate whether proper scientific
procedures were used in collecting it, and if they were not used, that fact
should weigh heavily against admitting the testimony.142 Unfortunately, as
is discussed below, most lineups do not comply with scientific guidelines
for conducting fair and unbiased lineups nor does law enforcement
generally follow scientific guidelines when engaged in other procedures
for collecting eyewitness evidence, such as eyewitness interviews.143
I. Lack of Knowledge of Memory and Eyewitness Factors
Police officers, attorneys, judges, and jurors lack knowledge about
how memory works and how eyewitness factors affect identification
137
Id. at 618.
See id. at 618–19 (noting the importance of proper extraction of an eyewitness’s memory).
139
See id. at 618 (“Some forms of forensic evidence, such as fingerprints, DNA, and firearms
patterns are subject to criticism for not following scientific principles in the collection and analysis of
the evidence. We see no reason why eyewitness identification evidence should not be treated in a
similar fashion.”).
140
For example:
Eyewitness evidence can be construed as a type of trace evidence except that, unlike
blood or fingerprints, the trace is in the brain of a human observer in the form of a
memory. This memory trace even has some physical properties in the sense of
being located as a neurological trace in the brain. Like physical evidence, the
critical issue is how to extract the evidence in a way that is maximally diagnostic of
identity.
Id. at 618–19.
141
Id.
142
See id. at 617–19 (analogizing good methods for conducting an experiment with good methods
for conducting lineups); see also Wells & Quinlivan, supra note 58, at 21 (“Today, police carry out
very complex evidence collection procedures with physical evidence such as blood, hair, and fiber that
have to conform to precise protocols and careful documentation. Clearly, police would be capable of
carrying out careful non-suggestive protocols with eyewitness identification evidence as well if courts
were more assertive in demanding it.”).
143
Wells et al., Eyewitness Identification Procedures, supra note 12, at 604; Ronald P. Fisher &
Nadja Schreiber, Interview Protocols to Improve Eyewitness Memory, in 1 HANDBOOK OF EYEWITNESS
PSYCHOLOGY: MEMORY FOR EVENTS 53, 55 (Michael P. Toglia et al. eds., 2007).
138
464
[Vol. 42:435
144
accuracy.
Their lack of knowledge about the nature of memory and
eyewitness factors makes it difficult for them to prevent eyewitness error
and to determine when it has occurred.145
IV. WHY JUDGES AND ATTORNEYS NEED A METHOD FOR ASSESSING
EYEWITNESS ACCURACY IN CRIMINAL CASES
It is vital that judges, prosecutors, and defense attorneys know how to
correctly evaluate the accuracy of eyewitness testimony. Such knowledge
is essential so that they can properly assess the probative value of
eyewitness testimony in criminal cases and help prevent wrongful
convictions that might result from erroneous eyewitness testimony. For
example, trial judges need this skill when determining if they should admit
testimony about a pretrial eyewitness identification, allow an in-court
identification by the eyewitness, admit eyewitness expert testimony,
permit other legal safeguards to educate jurors about eyewitness testimony,
in ruling on eyewitness evidentiary issues, and in bench trials when they
must evaluate the accuracy of eyewitness testimony.146 Appellate judges
must know how to evaluate the accuracy of eyewitness testimony when
they decide if the trial court abused its discretion by excluding expert
testimony about potential weaknesses of eyewitness testimony. Such
knowledge will also help appellate judges determine whether the
eyewitness testimony in a case is sufficiently reliable to affirm a guilty
verdict on appeal.
Prosecutors have to assess if the eyewitness testimony in a case is
sufficiently accurate to indict a suspect and take a case to trial.147
Prosecutors also need this skill when preparing the state’s eyewitnesses for
cross-examination, arguing eyewitness evidentiary issues, and attempting
to persuade the trier-of-fact that the state’s eyewitness testimony is
reliable.148
Knowing how to evaluate the accuracy of eyewitness testimony is also
144
Tanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated the American
Legal System? A Synthesis of Case History, Juror Knowledge, and Expert Testimony, in 2 HANDBOOK
OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 453, 475–76, 484–87 (Rod C. L. Lindsay et al.
eds., 2007).
145
See Wise et al., Tripartite Solution, supra note 19, at 843–48 (discussing common errors that
law officers make during eyewitness identification procedures). Wise et al., as part of their tripartite
solution to eyewitness error, advocate educating the principal participants in the criminal justice system
about eyewitness testimony to sensitize them to the effects of error. Id. at 822. They also describe the
many benefits that would accrue to the criminal justice system if the principal participants in the
criminal justice system were knowledgeable about eyewitness testimony. Id. at 866–67.
146
GREENE ET AL., supra note 95, at 144.
147
Cf. Richard A. Wise et al., What US Prosecutors and Defense Attorneys Know and Believe
About Eyewitness Testimony, 23 APPLIED COGNITIVE PSYCHOL. 1266 (2009) (describing a study
involving prosecutors and defense attorneys and finding that prosecutors often overestimate the
reliability of eyewitness testimony and jurors’ knowledge of eyewitness testimony).
148
Id.
2009]
465
critical to defense attorneys. This knowledge will enable them to more
effectively cross-examine an eyewitness at a pretrial identification hearing
and at trial, advise a defendant whether to accept a plea bargain, decide
whether to offer an eyewitness expert at trial, and argue to the trier of fact
that the state’s eyewitness testimony in a case is unreliable or wrong.149
Although the ability to evaluate the accuracy of eyewitness testimony
is essential to legal professionals, scientific studies show that
prosecutors,150 defense attorneys,151 and even judges have limited
knowledge of eyewitness factors.152 For example, Wise and Safer
surveyed 160 judges about a wide range of eyewitness factors and
procedures that affect identification accuracy.153 Some of the questions in
the survey were the same or similar to those used in an earlier survey of
eyewitness experts.154 For those questions, the judges’ answers were
compared to experts’ answers.155 The judges also indicated for a subset of
questions how they believed the average juror would respond to the
question and what legal safeguards they would permit attorneys to use to
educate jurors about eyewitness factors.156 These latter questions are
important because research has consistently shown that jurors are unaware
of many of the factors that affect identification accuracy and cannot
distinguish between accurate and inaccurate eyewitnesses.157 Yet one of
149
See supra Part II.C. (discussing how eyewitness issues are litigated).
John C. Brigham & Melissa P. WolfsKeil, Opinions of Attorneys and Law Enforcement
Personnel on the Accuracy of Eyewitness Identifications, 7 L. & HUM. BEHAV. 337, 346 (1983) (“In
general, prosecuting attorneys and law enforcement officers were similar in their responses to most of
the survey questions. These individuals consistently indicated that they regard eyewitness
identification as relatively accurate and feel that its importance is appropriately emphasized by judges
and jurors.”); Wise et al., A Survey, supra note 91, at 20.
151
See Brigham & WolfsKeil, supra note 150, at 342–47; George L. Rahaim & Stanley L.
Brodsky, Empirical Evidence Versus Common Sense: Juror and Lawyer Knowledge of Eyewitness
Accuracy, 7 L. & PSYCHOL. REV. 1, 8–11 (1982); Veronica Stinson et al., How Effective Is the
Presence-of-Counsel Safeguard? Attorney Perceptions of Suggestiveness, Fairness, and Correctability
of Biased Lineup Procedures, 81 J. APPLIED PSCHOL. 64, 72 (1996); Wise et al., A Survey, supra note
91, at 22; A. Daniel Yarmey & Hazel P. Jones, Is the Psychology of Eyewitness Identification a Matter
of Common Sense?, in EVALUATING WITNESS EVIDENCE 37–39 (Sally M.A. Lloyd-Bostock & Brian R.
Clifford eds., 1983).
152
Wise & Safer, supra note 11, at 13.
153
Id. at 7.
154
Id. at 8.
155
Id. at 9–11.
156
Id. at 8.
157
See John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the
Accuracy of Eyewitness Identifications, 7 L. & HUM. BEHAV. 19, 29 (1983) (finding that jurors would
benefit from eyewitness expert testimony on eyewitness factors); Thomas Dillickrath, Expert
Testimony on Eyewitness Identification: Admissibility and Alternatives, 55 U. MIAMI L. REV. 1059,
1062–63 (2001) (advocating for expert testimony given jurors’ general lack of knowledge of
eyewitness testimony); Saul M. Kassin & Kimberly A. Barndollar, The Psychology of Eyewitness
Testimony: A Comparison of Experts and Prospective Jurors, 22 J. APPLIED PSYCHOL. 1241, 1243–45
(1992) (showing that student mock jurors’ answers in a study were significantly different from those of
eyewitness experts); R. C. L. Lindsay et al., Mock Juror Belief of Accurate and Inaccurate Witnesses,
13 L. & HUM. BEHAV. 333, 337–38 (1989) (discussing a study in which mock jurors were unable to
150
466
[Vol. 42:435
the most common reasons judges exclude eyewitness expert testimony at
trial is their beliefs that jurors are knowledgeable about eyewitness
factors.158
The study showed that the judges had limited knowledge of eyewitness
testimony as they averaged only fifty-five percent correct on the fourteenitem knowledge scale.159 Thus, many judges in the survey were unaware
that eyewitness confidence is not related to eyewitness accuracy at trial,
that sequential lineups are more effective than simultaneous lineups in
reducing erroneous eyewitness identifications, and that several studies
indicate jurors cannot differentiate between accurate and inaccurate
eyewitness testimony.160 The judges’ answers compared to those of the
eyewitness experts differed significantly on five of the eight questions
where they answered the same or similar questions.161 In addition, the
judges were substantially less skeptical than the experts of jurors’
distinguish between accurate and inaccurate eyewitnesses). Scientific studies have delineated the
deficiencies in jurors’ knowledge of eyewitness testimony:
Using a variety of methods to test jurors’ knowledge of eyewitnesses, researchers
have found that: (1) jurors have limited knowledge of the factors that influence
eyewitness accuracy, such as the effects of the perpetrator wearing a hat or using a
weapon on identification accuracy; (2) jurors rely on factors which are not good
indicators of eyewitness accuracy, such as eyewitness confidence, memory for
minor or trivial details, and inconsistencies in eyewitness testimony; (3) jurors
overestimate the ability of eyewitnesses to make accurate identifications; and (4)
jurors in mock trials cannot distinguish accurate from inaccurate eyewitnesses.
Wise et al., Tripartite Solution, supra note 19, at 824–25.
158
For a discussion of the reasons courts generally give for excluding eyewitness expert
testimony, see FISHMAN & MCKENNA, supra note 76, §§ 40:22–40:25. Leippe, supra note 86, at 911–
12; and Gregory G. Sarno, Annotation, Admissibility, at Criminal Prosecution, of Expert Testimony on
Reliability of Eyewitness Testimony, 46 A.L.R. 4TH 1047, 1054–58 (1986). Judges are hostile to
eyewitness expert testimony for several reasons:
First, they are not knowledgeable about eyewitness testimony, and therefore do not
realize that the effect of many eyewitness factors on identification accuracy is not a
matter of common sense. They also appear to be concerned about the time and
expense that would result from permitting expert testimony. Finally, they seem to
believe that jurors will perfunctorily follow the opinion of the expert resulting in
guilty defendants going free.
Wise et al., Tripartite Solution, supra note 19, at 823 n.121; see also United States v. Daniels, 64 F.3d
311, 315 (7th Cir. 1995) (citing United States v. Larkin, 978 F.2d 964, 971 (7th Cir. 1992)) (“[B]ecause
it addresses an issue of which the jury already generally is aware . . . it will not contribute to their
understanding of the particular factual issue posed.”).
159
Wise & Safer, supra note 11, at 13. In a follow-up study, undergraduates and law students
completed the same eyewitness questionnaire that was administered to the judges. Richard A. Wise &
Martin A. Safer, A Comparison of What U.S. Judges and Students Know and Believe About Eyewitness
Testimony, J. APPLIED SOC. PSYCHOL. (forthcoming) (on file with authors). The results of the study
showed that judges were no more knowledgeable about eyewitness testimony than the undergraduates
and slightly less knowledgeable than the law students. Id. These results occurred even though the
judges on average had practiced law for fourteen years, been on the bench for twelve years, and
seventy-six percent of judges had been a prosecutor, defense attorney, or both prior to becoming a
judge. Id.
160
Wise & Safer, supra note 11, at 9–11, 13; see also discussion infra Part VII.6. (noting the
importance of using sequential lineups).
161
Wise & Safer, supra note 11, at 9–11.
2009]
467
162
knowledge of eyewitness testimony.
The judges in the survey were
reluctant to permit expert testimony to educate jurors about eyewitness
testimony even though expert testimony is the only legal safeguard that has
demonstrated any effectiveness in educating jurors about eyewitness
testimony.163 Other studies of judges’ knowledge of eyewitness testimony
have yielded similar results.164
Attorneys’ and judges’ lack of knowledge of eyewitness testimony is
not surprising. The effect of many of these eyewitness factors on
eyewitness accuracy is not a matter of common sense, and in fact may be
quite counter-intuitive, and attorneys and judges receive little training
about eyewitness testimony.165 Moreover, even experienced judges and
attorneys are unaware of these factors, probably because they do not
receive feedback on which eyewitnesses gave inaccurate testimony during
trials and what eyewitness factors caused their inaccuracies.166
Furthermore, even if judges and attorneys were knowledgeable about
eyewitness factors, it would still be difficult for them to assess the
accuracy of eyewitness testimony. This result would likely occur because
the ability to assess accuracy of eyewitness testimony is not just a matter of
knowledge but also of integration.167 Integration is the ability to apply
relevant knowledge when making a decision.168 As Cutler and Penrod
162
See id. at 11.
Id.
See Tanja Rapus Benton et al., Eyewitness Memory Is Still Not Common Sense: Comparing
Jurors, Judges, and Law Enforcement to Eyewitness Experts, 20 APPLIED COGNITIVE PSYCHOL. 115,
126 (2006) (finding that jurors, judges, and law enforcement officers had limited knowledge of
eyewitness testimony); Pär Anders Granhag et al., Eyewitness Testimony: Tracing the Beliefs of
Swedish Professionals, 23 BEHAV. SCI. & L. 709, 723 (2005); Svein Magnussen et al., What Judges
Know About Eyewitness Testimony: A Comparison of Norwegian and US Judges, 14 PSYCHOL. CRIME
& L. 177, 185 (2008) (“The results of the present study, in conjunction with the Wise and Safer study,
show that judges in Norway and the US have limited knowledge of eyewitness factors, and they
harbour beliefs and opinions that are at odds with current scientific knowledge as defined by the
opinions of eyewitness experts.” (citations omitted)).
165
See Wise & Safer, supra note 11, at 13 (finding that seventy-five percent of judges thought
they should receive more training on eyewitness testimony).
166
Id.
167
Brian L. Cutler et al., The Eyewitness, the Expert Psychologist, and the Jury, 13 L. & HUM.
BEHAV. 311, 313 (1989).
168
Cutler also states:
Sensitivity comprises two components: knowledge and integration. Knowledge
refers to awareness how units of information should be combined to form a
judgment; for example, knowledge of what witnessing and identification factors are
important and how these factors should be combined in the evaluation of eyewitness
identification accuracy. Integration refers to the ability to form judgments that
reflect the unit combinatorial scheme about which the judge is knowledgeable; for
example, ability to integrate eyewitness evidence in accordance with the judge’s
knowledge of what witnessing and identification factors are important.
Theoretically, knowledge and integration skills can vary independently.
Id. The method for analyzing eyewitness testimony described in this Article not only informs attorneys
and judges about many different types of factors that affect eyewitness accuracy, but it also helps them
163
164
468
[Vol. 42:435
note, decision making research in a variety of psychological domains
shows that integration is quite difficult to achieve, even by trained
experts.169 Accordingly, what judges and attorneys need to assess the
accuracy of eyewitness testimony is not merely greater knowledge about
eyewitness testimony, but also a method of analyzing eyewitness testimony
that enables them to apply the relevant eyewitness factors to the facts of a
case. That is what this Article offers.
TABLE 1:
METHOD FOR ANALYZING THE ACCURACY OF EYEWITNESS TESTIMONY
Step 1: Evaluating the Eyewitness Interviews
A. Did the interviews obtain the maximum amount of information from the
eyewitness?
B. Did the interviews contaminate the eyewitness’s memory?
1. Did they contaminate the eyewitness’s memory of the crime?
2. Did they contaminate the eyewitness’s memory of the perpetrator of the
crime?
C. Did the interviews, identification procedures, other eyewitnesses, the
prosecutor, the media, or some other factor significantly increase the
confidence of the eyewitness prior to taking a statement of the eyewitness’s
confidence in the accuracy of his or her identification?
Step 2: Evaluating the Identification Procedures and Identification Accuracy
A. Did one of the following circumstances occur that would make the
eyewitness’s identification of the defendant presumptively inaccurate?
1. Was the eyewitness interview significantly biased and did the bias
pertain to information concerning the description or identity of the
perpetrator?
2. Was an identification procedure significantly biased?
overcome the problem of integrating that knowledge into their analyses of eyewitness accuracy. See
discussion infra Part V (describing the method for analyzing eyewitness testimony).
169
Steven D. Penrod & Brian Cutler, Preventing Mistaken Convictions in Eyewitness
Identification Trials, The Case Against Traditional Safeguards, in 10 PSYCHOLOGY AND LAW, THE
STATE OF THE DISCIPLINE 89, 114 (Ronald Roesch et al. eds., 1999).
2009]
B. Because of the nature of memory, the effects of biased interviews and
identification procedures on identification accuracy cannot be corrected by
later conducting a fair interview and identification procedure. Accordingly,
if an eyewitness’s memory of the perpetrator of a crime has been
significantly contaminated, identification by the eyewitness of the defendant
should be considered presumptively inaccurate.
C. Does one of the two exceptions apply to the general rule that an
eyewitness’s identification is presumptively inaccurate if an eyewitness
interview or identification procedure was significantly biased?
1. Did some unusual circumstance exist that overcomes the presumptive
inaccuracy of the identification (e.g., the eyewitness knew the
perpetrator prior to the crime or had prolonged repeated exposure to the
perpetrator)?
2. Was there reliable, valid corroborating evidence that establishes the
veracity of the eyewitness testimony?
D. Were the eyewitness interviews and identification procedures fair and
impartial or did one of the exceptions to biased interviews and identification
procedures apply? If so, go on to Step 3. If not, the eyewitness’s
identification should be presumed to be inaccurate.
Step 3: Evaluating the Eyewitness Factors Present During the Crime
A. What eyewitness factors during the crime likely increased the accuracy of
the eyewitness identification and testimony?
B. What eyewitness factors during the crime likely decreased the accuracy of
the eyewitness identification and testimony?
Step 4: Conclusions
A. Was the maximum amount of information obtained from the eyewitness
during the interviews?
B. Was a statement of the eyewitness’s confidence in the accuracy of his or her
identification obtained prior to the eyewitness receiving any feedback?
C. Is there a high, medium, or low probability that the eyewitness’s testimony
was accurate?
D. Is there a high, medium, or low probability that the eyewitness
identification was accurate?
469
470
[Vol. 42:435
V. A METHOD FOR ANALYZING THE ACCURACY
OF EYEWITNESS TESTIMONY
Professor Wise has developed a method of analyzing eyewitness
testimony that enables judges and attorneys to apply the relevant
eyewitness factors to the facts of the case so they can better evaluate the
accuracy of eyewitness testimony. This method of analyzing eyewitness
testimony consists of three components.
First, judges and attorneys determine if law enforcement officials (a)
conducted the eyewitness interviews in a manner that obtained the
maximum amount of information from the eyewitness; (b) did not
contaminate the eyewitness’s memory of the crime with post-event
information; or (c) artificially increased the eyewitness’s confidence. (See
Table l, Step 1)
Obtaining the maximum amount of accurate information from
eyewitnesses is an important factor in preventing wrongful convictions.
For instance, a comprehensive study of criminal investigations by the Rand
Corporation indicated that the most important determinant of whether a
case is solved is the completeness and accuracy of the eyewitness
testimony in the case.170 In addition, the trier of fact is more likely to
render a correct verdict if detailed and accurate accounts of the crime are
presented at trial.171 Detailed and accurate eyewitness accounts further
contribute to the just resolution of criminal cases because they help law
enforcement obtain confessions from guilty suspects and also permit
defense attorneys to more effectively represent innocent defendants.172
(See Table 1, Step 1.A.)
Assessing whether law enforcement interviews have contaminated an
eyewitness’s memory with post-event information is vital because
scientific research shows that post-event information not only affects an
eyewitness’s verbal reports of the crime, but also his or her ability to
recognize the perpetrator of a crime.173 (See Table 1, Step 1.B.2.)
Determining whether an eyewitness’s confidence has been artificially
increased during an interview, an identification procedure, or by other
means, is also essential. If this has occurred prior to taking a statement of
the eyewitness’s confidence in the accuracy of his or her identification, the
statement of confidence has little or no probative value in assessing
170
Fisher, supra note 104, at 732; Fisher & Schreiber, supra note 143, at 53.
Fisher, supra note 104, at 732.
172
See id. (“On the one hand, it reduces the need to conduct extensive interrogations with
suspects, because they are more likely to admit guilt when faced with thorough eyewitness
information . . . . On the other hand, the more evidence defense attorneys can marshal, the better they
can defend their clients. In short, all concerned profit from having more complete and accurate
eyewitness evidence.” (citations omitted)).
173
Loftus & Greene, supra note 106, at 333.
171
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471
174
identification accuracy. Because eyewitness confidence is the factor that
jurors and judges rely on most heavily when evaluating the accuracy of
eyewitness testimony, they need to know when the eyewitness’s
confidence has been artificially increased by a law enforcement interview
or other means prior to taking a statement of the eyewitness’s confidence
in the accuracy of his or her identification.175 (See Table 1, Step 1.C.)
Scientific guidelines for evaluating the fairness and completeness of
eyewitness interviews are discussed below.176
The second component of the method for analyzing eyewitness
accuracy is for judges and attorneys to ascertain if the identification
procedures in the case were fair and unbiased. (See Table 1, Step 2) This
assessment can be made by applying the scientific principles that are
delineated later in this Article.177
The final component of the method for analyzing eyewitness accuracy
requires judges and attorneys to evaluate which eyewitness factors during
the crime likely increased or decreased the accuracy of the eyewitness
testimony and identification. (See Table 1, Steps 3.A.–B.) A list of the
most common eyewitness factors that affect eyewitness accuracy during a
crime are described in a subsequent section.178
If judges or attorneys determine that the eyewitness interview or
identification procedures were significantly biased, then the accuracy of
the eyewitness’s identification is highly questionable unless the eyewitness
conditions were exceptionally good (e.g., the eyewitness victim was
kidnapped and had prolonged, repeated exposure to his or her abductor) or
there is reliable, valid corroborating evidence establishing the accuracy of
the eyewitness testimony. As Koehnken, Malpass, and Wolfgater stated:
Valid implementation of eyewitness identification using lineups and photo spreads demands especially careful
preparation. Once a mistake it made, it cannot be corrected.
An identification of a suspect under suggestive conditions
early in an investigation cannot simply be rectified by later
conducting a fair line-up. Various psychological mechanisms
result in the witness retaining the effects of errors made in
174
See Wise et al., Tripartite Solution, supra note 19, at 855 (“Several studies have identified
post-event factors that significantly increase the confidence, but not the accuracy, of eyewitness
testimony. These factors include post-event questioning, confirming feedback, and repeating questions
of witnesses. Thus, by the time of trial, eyewitness confidence has little probative value in assessing
eyewitness accuracy because of the many factors that affect eyewitness confidence but not accuracy.”
(footnotes omitted)).
175
176
See infra Part VI (discussing guidelines for evaluating the fairness of eyewitness interviews).
177
See infra Part VII (discussing guidelines for evaluating the fairness of identification
procedures).
178
See infra Part VIII (providing a list of the common eyewitness factors during a crime that
affect eyewitness accuracy).
472
[Vol. 42:435
previous recognition tests. There are no procedures that can
reliably rule out the possibility that earlier mistakes will be
maintained at a later identification.179
In short, once law enforcement has contaminated an eyewitness’s
memory of the perpetrator of the crime by conducting a biased eyewitness
interview or identification procedure, the error cannot be corrected by
subsequently conducting fair procedures.180 (See Table 1, Step 2.B.)
Therefore, not only should an identification of a suspect that is a product of
biased interview or identification be presumed to be inaccurate, but any
subsequent identification by the eyewitness whose memory has been
contaminated should also be presumed to be inaccurate even if it results in
a fair identification procedure later.
In contrast, if law enforcement conducted fair and unbiased eyewitness
interviews and identification procedures, then the eyewitness identification
and testimony is more likely to be accurate even if the eyewitness
conditions were somewhat less than ideal. Accordingly, when assessing
the accuracy of eyewitness testimony, judges and attorneys should always
first analyze the eyewitness interviews and identification procedures. (See
Table 1, Steps 1.–2.)
Of course, no method can definitively determine if an eyewitness has
made an accurate identification. This method, however, provides a
comprehensive analytical framework for identifying and organizing the
myriad of disparate factors that affect the accuracy of eyewitness
testimony. It also alerts judges and attorneys to the many different types of
eyewitness factors that affect identification accuracy. Perhaps most
importantly, it also provides judges and attorneys with a method for
integrating their knowledge of eyewitness factors into their decisions about
the accuracy of eyewitness testimony. Accordingly, the use of this method
substantially increases the probability that attorneys and judges will
correctly assess eyewitness accuracy.
There are other advantages to using this method. It emphasizes the
importance of the State conducting fair and unbiased interviews and
identification procedures. The method’s emphasis on fair and unbiased
procedures is justified not only because it is logical (if the methodology of
an investigation is invalid, then its results are likely to be invalid) and
supported by empirical evidence, but also because the fairness of the
eyewitness interviews and identification procedures are generally within
179
Koehnken et al., supra note 130, at 208; see also Susan R. Klein, Identifying and
(Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal
Procedure, 99 MICH. L. REV. 1030, 1065 (2001); Wells & Quinlivan, supra note 58, at 15 (setting forth
a different hypothesis on how contamination affects an eyewitness’s memory); Michael S. Wogalter et
al., A National Survey of US Police on Preparation and Conduct of Identification Lineups, 10
PSYCHOL. CRIME & L. 69, 78 (2004).
180
Wogalter et al., supra note 179, at 78.
2009]
473
the State’s control and can easily be documented by videotaping them.181
On the other hand, the State cannot control the eyewitness factors that
affected the eyewitness’s ability during a crime to make an accurate
identification.182 Moreover, there is generally no objective record of the
crime or of the eyewitness factors that affected the accuracy of the
eyewitness testimony.
This method also provides the State with a strong incentive to conduct
fair interviews and identification procedures because they can significantly
strengthen the State’s case at trial. Furthermore, the State can achieve the
goal of conducting fair and unbiased eyewitness interviews and
identification procedures without incurring either an unreasonable financial
or administrative burden.183 This emphasis in the method is further
warranted because the best way to prevent and reduce eyewitness error is
181
Wells et al., From the Lab, supra note 15, at 582; Wise et al., Tripartite Solution, supra note
19, at 864–65. In effect, the method for analyzing the accuracy of eyewitness testimony delineated in
this Article distinguishes between system variables and estimator variables. System variables are
factors “over which the justice system has control, whereas . . . estimator variables are beyond the
control of the justice system.” Wells et al., From the Lab, supra note 15, at 582. “The number of foils
[i.e., known innocent members] in a line-up, the selection of line-up members, and questioning
techniques are examples of system variables.” Douglas J. Narby et al., The Effects of Witness, Target,
and Situational Factors on Eyewitness Identifications, in PSYCHOLOGICAL ISSUES IN EYEWITNESS
IDENTIFICATION 23–24 (Siegfried Ludwig Sporer et al. eds., 1996). “Some examples of estimator
variables are the level of stress experienced by the witness during the crime, and the degree to which
the witness was distracted from attending to a perpetrator’s characteristics.” Id. at 23. The estimation
of how much these variables influence the accuracy of identifications is subject to biases and error. Id.
at 24. Thus, in the method for analyzing eyewitness accuracy discussed in this Article, the factors
pertaining to whether law enforcement during the eyewitness interview obtained the maximum amount
of information from the eyewitness, contaminated the eyewitness’s memory of the crime, or artificially
increased eyewitness confidence, and whether the identification procedures were fair and unbiased are
all system variables because they generally are within the control of the criminal justice system. See
Table 1, Steps 1–2. In contrast, the factors during the crime that likely increased or decreased
eyewitness accuracy are all estimator variables. See Tbl. 1, Step 3.
182
See Wells et al., From the Lab, supra note 15, at 582 (discussing the difference between
system variables and estimator variables: system variables are eyewitness factors that the criminal
justice system can generally control while estimator variables are eyewitness factors that it cannot
control).
183
See Michael R. Headley, Note, Long on Substance, Short on Process: An Appeal for Process
Long Overdue in Eyewitness Lineup Procedures, 53 HASTINGS L.J. 681, 700 (2002); Amy Klobuchar et
al., Improving Eyewitness Identifications: Hennepin County’s Blind Sequential Lineup Pilot Project, 4
CARDOZO PUB. L. POL’Y & ETHICS 381, 409 (2006) (discussing how a pilot project that implemented
double-blind, sequential lineup procedures was “extremely efficient” and, as Minnetonka Police Chief
Joy Rikala noted: “There [are] no cost implications of this. It’s negligible.”). Fisher and Schreiber
state that Britain has adapted national standards for interviewing eyewitnesses based on the cognitive
interview. Fisher & Schreiber, supra note 143, at 56. They also point out:
[T]raining practices differ widely across countries. The most advanced and rigorous
training is found in Britain, where police often collaborate with academic
researchers to develop and evaluate training programs . . . as have Australia, New
Zealand, and Israel. We find it interesting that the United States and Canada, which
have produced many of the leading theoretical advances in the psychology of
memory, have not kept pace with their western counterparts by incorporating this
knowledge into police training programs.
Id. at 57. The widespread use of the cognitive interview in several different countries supports the
proposition that its implementation is both practical and cost efficient.
474
[Vol. 42:435
for the State to conduct fair and unbiased interviews and identification
procedures.184
Finally, though the method provides scientific guidelines for assessing
eyewitness accuracy, as is discussed in Part IX, we also recognize that
there are some limited circumstances where policy considerations may
require the admission of an eyewitness identification at trial even though
the method indicates that the identification should be presumed to be
inaccurate.185
In the next three sections, scientific guidelines for assessing the
fairness of eyewitness interviews and identification procedures and a list of
eyewitness factors that commonly affect eyewitness accuracy in criminal
trials are discussed. The Appendix contains a form that will aid judges and
attorneys in applying this method to eyewitness testimony.
VI. EVALUATING THE EYEWITNESS INTERVIEWS
(THE “COGNITIVE INTERVIEW”): TABLE 1, STEP 1
Law enforcement officers are generally not trained to interview
eyewitnesses, but rather only to interrogate suspects.186 Accordingly, when
law enforcement officers conduct interviews of eyewitnesses they often
make three types of errors: (1) they fail to obtain much of the information
that an eyewitness knows about a crime; (2) they contaminate an
eyewitness’s memory of the crime; and (3) they create an unwarranted
increase in an eyewitness’s confidence in the accuracy of his or her
testimony and identification.187
In the 1980s, Ronald Fisher and Edward Geiselman began developing
an interviewing technique which reduces the errors that law enforcement
officers generally make when interviewing eyewitnesses.188 Scientific
studies of their cognitive interview in the laboratory and in field studies
184
Wise et al., Tripartite Solution, supra note 19, at 864–65.
We are referring to situations where the police are acting in good faith, but necessity requires
them to use a suggestive identification procedure. One example is using a showup with an eyewitness
when the police believe that they have apprehended the perpetrator shortly after the crime has occurred.
See infra note 347. In such instances, where possible the police should follow proper procedures in
conducting the showup. See NAT’L INST. OF JUSTICE, U.S. DEP’T OF JUSTICE, EYEWITNESS EVIDENCE:
A TRAINER’S MANUAL FOR LAW ENFORCEMENT 30–31 (2003), available at http://www.ncjrs.gov/nij/
eyewitness/188678.pdf [hereinafter NAT’L INST. OF JUSTICE].
186
Fisher, supra note 104, at 733; Wells et al., From the Lab, supra note 15, at 583.
187
Fisher, supra note 104, at 755; Judges, supra note 119, at 249, 250, 252. For example, in
Florida:
The “standard police interview” was characterized by constant interruptions,
excessive use of a predetermined list of questions with an expectation that witnesses
could provide answers, and questions that were timed inappropriately . . . if the
witness was describing one of the perpetrators, the officer, might switch the line of
questioning to the actions of another perpetrator.
Wells et al., Eyewitness Evidence, supra note 13, at 55 (citations omitted).
188
Wells et al., From the Lab, supra note 15, at 582–83.
185
2009]
475
show that it increases the amount of accurate information obtained from
eyewitnesses by thirty-five to seventy-five percent over standard police
interviews.189 It also decreases the probability of contaminating the
eyewitness’s memory of the crime or artificially inflating their
confidence.190 The cognitive interview forms the basis for the interviewing
techniques that the National Institute of Justice recommended in its
Training Manual for Law Enforcement.191
The following scientific guidelines derived from the above mentioned
sources can be used by judges and attorneys to assess whether law
enforcement obtained the maximum amount of information from the
eyewitness; whether they contaminated the eyewitness’s memory of the
crime; and whether they increased the eyewitness’s confidence in the
accuracy of his or her identification.
The factors for maximizing the amount of information obtained from
the eyewitness are divided into three categories: pre-interview preparation,
conducting the interview, and concluding the interview. Brief explanations
follow for each guideline and the guidelines are in bold.
A. Factors Relevant to Maximizing the Information Obtained from the
Eyewitness
1. Pre-Interview Preparation
a. When circumstances permit, the interview should be
held as soon as possible after the crime.192
Scientific studies show that eyewitnesses begin to forget the
details of the crime very quickly, so the interview should be
conducted as soon as the eyewitness is physically and
emotionally capable of being interviewed and the exigencies
of investigating the crime permit.193
b. The interviewer should review all information about
the crime prior to the interview.
This guideline allows an interviewer to conduct a more
thorough and complete interview.194
189
Id. at 584.
Fisher, supra note 104, at 752.
191
See Wells et al., From the Lab, supra note 15, at 590; NAT’L INST. OF JUSTICE, supra note 185,
at 10–12.
192
NAT’L INST. OF JUSTICE, supra note 185, at 13; Wise & Safer, supra note 11, at 11.
193
NAT’L INST. OF JUSTICE, supra note 185, at 13; see also Fisher & Schreiber, supra note 143, at
69 (discussing another reason for conducting the eyewitness interview as soon as possible after the
crime: “The more likely prophylactic approach to minimizing the influence of suggestive questioning
is to conduct an effective witness interview shortly after the critical event, before the witness has been
exposed to the influence of the misleading suggestions.”).
194
NAT’L INST. OF JUSTICE, supra note 185, at 13.
190
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c. The interview should be conducted in a comfortable
environment, and distractions and interruptions should
be minimized.
An eyewitness who is comfortable and relaxed and is not
distracted or interrupted is likely to recall more information
about the crime.195
d. The resources needed to conduct the interview (e.g.,
pens, notepad, video recorder) should be obtained prior
to the interview so it does not have to be interrupted to
get these items.
Interruptions interfere with the eyewitness’s ability to
remember the crime.196
e. The eyewitness interview should be videotaped.
Videotaping ensures that judges, attorneys, and jurors can
evaluate the interview and that there is an accurate and
complete record of the eyewitness testimony prior to his or
her exposure to post-event information. It also allows the
interviewer to focus on what the eyewitness is saying rather
than on note taking.197 Finally, it provides the eyewitness
with an effective way of refreshing his or recollection before
testifying at trial.
2. Conducting the Interview
When conducting the interview, the interviewer should:
195
Id. Law enforcement rarely meets this guideline. Fisher, supra note 104, at 756. For
example, patrol officers, who usually conduct the initial interview of eyewitnesses, do so under very
poor conditions, such as “general confusion and background noise, high witness arousal, severe time
pressure, etc. They are pressed by their supervisors to file their reports quickly, even if at the cost of
diminished information.” Id.
196
197
Id. at 21; see also Fisher, supra note 104, at 745 (stating that videotaping a witness’s response
minimizes “information-overload”). Unfortunately, law enforcement does not generally record
eyewitness interviews. See Fisher, supra note 104, at 755 (“The value of tape recording interviews is
obvious in terms of exposing police errors. One ought to be able to uncover, at lease in theory, whether
an item of knowledge was ‘constructed’ by the interview process or whether it was based on the
witness’s earlier perception of the original event.”). Sometimes, however, the characteristics of the
ideal eyewitness interview conflict with one another, or may need to yield to more compelling
considerations. Take the frequent circumstance where a police officer interviews an eyewitness or
victim at the crime scene only minutes after the crime. Time is of the essence: the quicker the officer
can obtain a description of the perpetrator, the quicker the police can begin searching for the
perpetrator, hopefully before he or she has gotten too far from the crime scene. At-the-scene
interviewing minimizes the time between the crime and the interview, but may make it impractical for
the officer to learn anything about the crime prior to the interview, or to transport the eyewitness to a
comfortable environment, or to videotape the interview. The situation may be even more exigent if the
interview must be conducted while the eyewitness is receiving medical treatment, or the eyewitness is
about to be taken to the hospital.
2009]
477
a. Establish and maintain rapport with the eyewitness
and minimize his or her anxiety.
Relaxed eyewitnesses provide more information and
eyewitnesses are often traumatized by the crimes they
witnessed.198
b. Inquire about the eyewitness’s condition.
This question helps build rapport and alerts the interviewer to
any condition that might impair the eyewitness’s ability to
remember the crime (e.g., intoxication, shock, drugs).199
c. Instruct the eyewitness to: (1) volunteer information;200
(2) report all details they remember about the crime even
if the information seems trivial and unimportant;201 and
(3) inform the eyewitness about the type and degree of
detail of information the interviewer needs.202
These rules encourage the eyewitness to be active during the
interview. This is vital because it is the eyewitness, not the
interviewer, who has information about the crime, and
unprompted information tends to be more accurate than
These
information given in response to questions.203
instructions also increase the likelihood that the eyewitness
will not withhold any information about the crime and
understands the kinds of information and the degree of detail
that the interviewer needs.204
d. Ask the eyewitness to mentally recreate the crime.
This can be done by asking the eyewitness to think about his
198
See NAT’L INST. OF JUSTICE, supra note 185, at 14 (“The development of rapport between the
witness and interviewer will make the witness more comfortable during the interview process.
Comfortable witnesses will generally provide more information.”); Wells et al., Eyewitness Evidence,
supra note 13, at 56. Police officers often have difficulty establishing rapport with eyewitnesses. See
Fisher, supra note 104, at 755. Fisher notes that “I have found in the various interviewing workshops I
have conducted that women were generally more effective interviewers than men.” Id. at 756.
199
200
Id. at 16.
201
Id. at 20; Wells et al., Eyewitness Evidence, supra note 13, at 57.
202
Fisher, supra note 104, at 747; Fisher & Schreiber, supra note 143, at 62.
203
NAT’L INST. OF JUSTICE, supra note 185, at 16, 19. Fisher and Schreiber propose:
Interviewers can induce witnesses to take more active roles and to volunteer
information by (a) explicitly requesting them to do so, (b) asking open-ended
questions, (c) not interrupting witnesses during their narrative responses, and (d)
constructing the social dynamic so that witnesses perceive themselves to be the
experts and therefore the dominant person in the conversation. This last point is
especially important when children are being interviewed.
Fisher & Schreiber, supra note 143, at 61.
204
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[Vol. 42:435
205
or her thoughts and feelings during the crime. By mentally
recreating the crime, the eyewitness will be able to recall
more information about the crime.206
e. Use primarily open-ended questions during the
interview (e.g., What did the perpetrator look like?).207
Open-ended questions give the eyewitness control of the
interview.208 They also furnish the eyewitness with his or her
best chance to fully disclose the details of a crime.209 In
addition, responses to opened-ended questions tend to be
more accurate than responses to other types of questions and
promote more attentive listening by the interviewer.210
f. Ask close-ended questions only when they are needed
to augment open-ended questions (e.g., What color was
the perpetrator’s hair?).
Open-ended questions are preferable because close-ended
questions limit the amount and scope of the information
obtained from the eyewitness.211 Nonetheless, close-ended
questions are appropriate when the eyewitness has not
disclosed important information in his or her responses to
open-ended questions.212
205
Id. at 20. Wells suggests that an officer can have an eyewitness mentally recreate the crime
by: “asking them to form an image or impression of the environmental aspects of the original scene
(e.g., the location of objects in a room); to comment on any emotional reactions and feelings (e.g.,
surprise, anger) at the time; and to describe any sounds, smells, and physical conditions (e.g., hot,
humid, smoky) that were present.” Wells et al., Eyewitness Evidence, supra note 13, at 57.
206
Fisher & Schreiber, supra note 143, at 59; NAT’L INST. OF JUSTICE, supra note 185, at 20.
207
See NAT’L INST. OF JUSTICE, supra note 185, at 11 (“An open-ended question allows for an
unlimited response from the witness in his/her own words (e.g., ‘What can you tell me about the
perpetrator?’ or ‘Tell me in your own words what happened’).”).
208
Id.; Wise et al., Tripartite Solution, supra note 19, at 843.
209
210
Id.
211
Id. The National Institute of Justice’s Training Manual indicated that
[a]lthough it is preferable to use open-ended questioning, the investigator should
follow with more directed questions if the witness is unresponsive to open-ended
questions or provides imprecise responses. If, for example, when answering an
open-ended question, the witness states that the perpetrator was dressed in ‘shabby’
clothing, the investigator should ask the witness to elaborate on the type of clothing
(e.g., “What do you mean by ‘shabby’?”).
Id.; Wells et al., Eyewitness Evidence, supra note 13, at 57.
212
NAT’L INST. OF JUSTICE, supra note 185, at 11. The National Institute of Justice’s Training
Manual, however, suggests:
For each new topic of information being sought, the investigator should begin with
open-ended questions and augment them with closed-ended questions if necessary.
For example, if, after having elicited all information from the witness about the
perpetrator, the next topic of information is the getaway car, the investigator should
begin this line of inquiry with open-ended questions about the car.
Id.
2009]
g. Avoid interrupting the eyewitness.
Interruptions disrupt memory and discourage the eyewitness
from volunteering information.213
h. Allow for pauses when an eyewitness stops talking and
before asking the next question.
This ensures that the eyewitness has completed his or her
response.214
i. Tailor questions to the eyewitness’s narrative rather
than asking a standard set of questions.
Each eyewitness’s mental representation of a crime is unique;
therefore, the interviewer’s questions should correspond to
the eyewitness’s memory of the crime.215 For example, if the
eyewitness is describing the perpetrator’s car, the interviewer
should not be asking questions about the perpetrator’s
appearance.216
j. Encourage nonverbal communications from the
eyewitness such as drawings and gestures, especially from
children eyewitnesses or eyewitnesses who are not fluent
in English.217
Some information is difficult to express verbally and some
aspects of events are expressed better nonverbally.
Moreover, some eyewitnesses have limited verbal skills.
k. Ask the eyewitness, “Is there anything else I should
have asked you?”
This question helps insure that the eyewitness has disclosed
all the information he or she knows about the crime.218
3. Concluding the Interview
a. The eyewitness should be encouraged to contact the
213
Id. at 16.
Id. at 17.
215
Id.; Fisher & Schreiber, supra note 143, at 59.
216
217
Id. at 20. Fisher & Schreiber stated:
Ideally the response format should be compatible with the witness’s mental
representation of the event, thereby minimizing the need to transform the mental
representation into an overt response. For example, if an event is inherently spatial
(e.g., locations of objects within a room), then witnesses should respond spatially,
for example, by drawing a sketch of the room or by placing model objects within a
(model) room.
Fisher & Schreiber, supra note 143, at 62 (internal citations omitted).
218
214
479
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interviewer if he or she remembers additional facts about
the crime.
Eyewitnesses frequently recall additional facts about the
crime after the interview is over.219
b. The interviewer should review written documentation
with the eyewitness and ask the eyewitness if there is
anything he or she wishes to change, add, or emphasize.
Doing this helps insure that the information has been
accurately recorded and allows the eyewitness to recall more
information about the crime.220
c. Thank the eyewitness for his or her time and
cooperation.
Expressing gratitude to the eyewitness strengths rapport with
the eyewitness and encourages future cooperation.221
B. “Contamination” of the Eyewitness’s Memory
To prevent contaminating the eyewitness’s memory and to assess
whether the eyewitness’s memory has been contaminated, the interviewer
should (See Table 1, Step 1.B.2.):
1. Separate the eyewitnesses and tell them not to discuss
the details of the crime with other eyewitnesses222 and to
avoid media accounts of the crime.223
If an eyewitness hears another eyewitness’s or the media’s
account of the crime, this could alter the first eyewitness’s
memory of the crime and create a false consensus among the
eyewitnesses about details of the crime.224
2. Determine if an eyewitness has spoken to another
eyewitness or anyone else about the crime or been
exposed to media accounts of the crime.
Exposure to these sources could mean that the eyewitness’s
memory of the crime has been altered by post-event
219
Id. at 20; Fisher & Schreiber, supra note 143, at 63.
NAT’L INST. OF JUSTICE, supra note 185, at 21. Fisher and Schreiber suggest that “[t]he
interviewer should also point out in a nonchallenging way any ambiguities or contradictory statements
within the witness’s statement and ask the witness to clarify these matters, even if that means indicating
that the witness is not certain about the matter.” Fisher & Schreiber, supra note 143, at 63.
221
222
Id. at 12.
223
Id.; Fisher & Schreiber, supra note 143, at 60.
224
220
2009]
481
225
information.
3. Ascertain the nature of the eyewitness’s prior law
enforcement contact related to the crime being
investigated. This includes any prior interviews by law
enforcement or participation in any type of identification
procedure.
This information puts the eyewitness’s information into
context and allows the interviewer to determine if post-event
information or a biased identification procedure contaminated
the eyewitness’s memory of the crime.226
4. Avoid volunteering any
perpetrator or the crime.
information
about
the
Doing so could alter the eyewitness’s memory about the
crime.227
5. Tell the eyewitness not to guess and to indicate if he or
she feels any uncertainty about an answer.
Guessing can alter the eyewitness’s memory.228
6. Refrain from (a) using suggestive or leading questions
(e.g., “Was the car red?”);229 (b) disclosing information to
the eyewitness about the crime the interviewer learned
from other sources; or (c) using multiple choice questions.
All these responses supply post-event information to an
eyewitness, which can alter an eyewitness’s memory of the
crime. Moreover, post-event information not only affects an
225
Id. If two or more eyewitnesses are victimized by or observe a crime, it is understandable that
they may discuss what happened while waiting for the police to arrive. Clearly no blame should be
placed on the police for what the eyewitnesses did before the police had an opportunity to intervene;
nor can any blame be assigned to the eyewitnesses, who do not know that discussing the matter with
each other may contaminate their memories of what happened. Thus, the occurrence of such a
discussion prior to the first police interview cannot by itself mandate suppression of eyewitness
testimony; but it is a factor for the judge to consider, in making an overall assessment of the accuracy
and reliability of their testimony. Moreover, if the eyewitnesses make an in-court identification at trial,
defense counsel should be permitted to elicit that the eyewitnesses had discussed the facts among
themselves, and to elicit expert testimony about the resultant risk of contamination and inaccuracy.
226
Id. at 14; see also Brigham et al., supra note 90, at 14 (discussing how “witnesses are highly
susceptible to suggestions regarding their memory for the previously viewed event”); Shaw &
McClure, supra note 118, at 647 (discussing how repeated questioning of an eyewitness can increase
the risk of contaminating the eyewitness’s memory); Gary L. Wells & Amy L. Bradfield, Distortions in
Eyewitnesses’ Recollections: Can the Postidentification-Feedback Effect Be Moderated?, 10 PSYCHOL.
SCI. 138, 138 (1999).
227
NAT’L INST. OF JUSTICE, supra note 185, at 23; Fisher & Schreiber, supra note 143, at 60.
228
NAT’L INST. OF JUSTICE, supra note 185, at 20; Wells et al., Eyewitness Evidence, supra note
13, at 57.
229
482
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eyewitness’s memory of the crime, but it can also impair an
eyewitness’s ability to recognize the perpetrator of the
crime.230
C. Eyewitness Confidence
To prevent increasing the confidence of the eyewitness and to
determine if it has been artificially increased, the interviewer should (See
Table 1, Step 1.C.):
1. Use the cognitive interview.
It minimizes the probability that the interviewer will increase
the eyewitness’s confidence.231
2. Avoid disclosing to the eyewitness: (a) that another
eyewitness has identified the same suspect; (b) what
another eyewitness said about the crime or the
perpetrator; or (c) that there is other evidence that
confirms the eyewitness’s testimony or identification.
All these factors
confidence.232
artificially
increase
eyewitness
3. Determine if the eyewitness had contact with other
eyewitnesses, the media, or other law enforcement officers
and the nature of that contact to assess whether it has
increased the eyewitness’s confidence (e.g., the eyewitness
has been told that another eyewitness also identified the
suspect).233
4. Avoid giving the eyewitness any type of confirming
feedback (e.g., “Good, you have identified the suspect”) or
exposing the eyewitness to unnecessary, repeated
questioning.
230
Id. at 23; see also Wise et al., Tripartite Solution, supra note 19, at 846 (“Law officers can
convey post-event information to eyewitnesses in a variety of ways, from overtly volunteering
information to the eyewitness, to asking leading questions, to encouraging guessing by the eyewitness,
to offering confirming feedback.” (footnotes omitted)).
231
For a discussion of the cognitive interview, see supra Part VI. See also RONALD P. FISHER &
R. EDWARD GEISELMAN, MEMORY-ENHANCING TECHNIQUES FOR INVESTIGATIVE INTERVIEWING, THE
COGNITIVE INTERVIEW 38–39 (1992); Pär Anders Granhag et al., The Cognitive Interview and Its
Effect on Witnesses’ Confidence, 10 PSYCHOL., CRIME & L. 37, 50 (2004).
232
Helen M. Paterson & Richard I. Kemp, Comparing Methods of Encountering Post-Event
Information: The Power of Co-Witness Suggestion, 20 APPLIED COGNITIVE PSYCHOL. 1083, 1098
(2006); Wells & Bradfield, supra note 118, at 362.
233
NAT’L INST. OF JUSTICE, supra note 185, at 12 (“Media information may contaminate the
witness’s memory. Media requests for a story or offers of compensation may encourage a witness to
fabricate information. . . . Witnesses should not hear others’ accounts because they may be influenced
by that information.”).
2009]
483
234
These factors significantly increase eyewitness confidence.
5. Take a statement of the eyewitness’s confidence in the
accuracy of his or her identification of the suspect as the
perpetrator of the crime immediately after the
identification procedure and prior to the eyewitness
receiving any feedback about his or her identification.235
Eyewitness confidence is highly malleable; therefore, a
statement of the eyewitness confidence should be taken
immediately after the identification.236
This guideline recognizes that at some point the eyewitness is
likely to receive positive or confirming feedback.237 Indeed,
law enforcement officials may have legitimate reasons for
These
providing such feedback to the eyewitness.238
234
Bradfield et al., supra note 12, at 113; Shaw & McClure, supra note 118, at 630; Andrew E.
Taslitz, Convicting the Guilty, The ABA Takes a Stand, 19 CRIM. JUST. 18, 23 (2005); Wells et al.,
Eyewitness Identification Procedures, supra note 12, at 626; Wells & Bradfield, supra note 118, at 374.
235
Wells et al., Eyewitness Identification Procedures, supra note 12, at 635. The authors support
this suggestion, stating:
This recommendation is based on the observation that confidence statements from
eyewitnesses can be affected dramatically by events occurring after the
identification (postidentification events) that have nothing to do with the witness’s
memory. As noted earlier, the confidence that an eyewitness expresses in his or her
identification during testimony is the most powerful single determinant of whether
or not observers will believe the eyewitness made an accurate identification. By
recording the eyewitness’s confidence at the time of the identification,
postidentification factors (which have little to do with the witness’s memory) will
not yet have influenced the confidence judgment. If the confidence that an
eyewitness expresses at trial is noticeably higher than it was at the time of the
identification, then fact finders should consider the possibility that this inflation of
confidence came from sources other than the goodness of the eyewitness’s memory.
Id.; see also Wise et al., Tripartite Solution, supra note 19, at 864.
236
Leippe & Eisenstadt, supra note 117, at 417; Wells et al., From the Lab, supra note 15, at 586;
see also supra Part III.F. (discussing eyewitnesses’ tendency to be overconfident in the accuracy of
their identifications and the malleability of eyewitness confidence); WEITEN, supra note 14, at 230–31.
237
The eyewitness learning that the person he or she identified was subsequently indicted is likely
to boost the eyewitness’s confidence that he or she picked out the “right” person. If the eyewitness
learns that the defendant is also charged with committing other, similar crimes (a fact that is accessible
to the public at large), this, too, will boost his or her confidence.
238
The rights and concerns of the eyewitness must also be taken into account. Eyewitnesses (and
particularly victims) often complain that they are ignored or treated without courtesy or respect by
investigators, attorneys, and the court. See John Hagan, Victims Before the Law: A Study of Victim
Involvement in the Criminal Justice Process, 73 J. CRIM. L. & CRIMINOLOGY 317, 324–28 (1982);
Deborah P. Kelly, Delivering Legal Services to Victims: An Evaluation and Prescription, 9 JUST. SYS.
J. 62, 76 (1984) (reporting that the suggested reform witnesses requested most often was that police
should provide them with more information about the investigation); Deborah P. Kelly, Victims’
Perceptions of Criminal Justice, 11 PEPP. L. REV. 15, 19 (1984); Dean G. Kilpatrick & Randy K. Otto,
Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on
Psychological Functioning, 34 WAYNE L. REV. 7, 22 (1987) (reporting witness dissatisfaction with
how they are treated by the criminal justice system); Peggy M. Tobolowsky, Victim Participation in the
Criminal Justice Process: Fifteen Years After the President’s Task Force on Victims of Crime, 25 NEW
ENG. J. ON CRIM. & CIV. CONFINEMENT 21, 103 (1999). Simple compassion for an eyewitness’s
484
[Vol. 42:435
concerns underscore the importance of asking the eyewitness
to estimate his or her degree of certainty immediately after
the eyewitness’s identification of the defendant (and
videorecording that statement), as a check against a
subsequent increase in the eyewitness’s confidence from
outside sources. If an eyewitness’s confidence in the
accuracy of the identification increases by the time of trial,
the judge should permit the defense attorney to use the
eyewitness’s earlier statement of confidence to impeach the
eyewitness’s current statement of confidence.239 Moreover,
the trial judge should consider permitting expert testimony
that explains how an eyewitness’s confidence can increase
over time, and why this does not indicate that the
identification is correct.240
TABLE 2:
SCIENTIFIC GUIDELINES FOR FAIR AND IMPARTIAL
IDENTIFICATION PROCEDURES
1. Whenever possible, law enforcement should use photo arrays and lineups
only when there is probable cause to believe the suspect committed the crime.
2. Before conducting an identification procedure, it should be determined
whether the eyewitness has previously seen the suspect.
3. Only one suspect should be included in every identification procedure.
4. The number of lineup participants should be increased.
5. The suspect should not stand out from the foils.
6. Law enforcement should use sequential identification procedures.
7. The lineup administrator should not know the identity of the suspect.
8. Eyewitnesses should be given cautionary instructions.
feelings might dictate that he or she be provided at least some additional information about the case;
law enforcement officials may have a legitimate concern that the failure to do so might so offend the
victim or eyewitness that he or she will refuse to subject him or herself to the ordeal of reliving the
crime in the courtroom and, in particular, cross-examination that may prove upsetting or embarrassing.
239
Where a prior statement by an eyewitness is inconsistent with that eyewitness’s testimony at
trial, the prior statement should be admitted to impeach the testimony. See, e.g., FED. R. EVID. 613(b);
CLIFFORD S. FISHMAN, 4 JONES ON EVIDENCE § 26:2 (7th ed. 2000). A complete, 180-degree
contradiction is not required; it suffices that the prior statement leaves a significantly different
impression than the testimony being impeached. Id. § 26:15. To preclude a defendant from bringing
out such inconsistencies can constitute a violation of the right, guaranteed by the Sixth Amendment to
confront and cross-examine witnesses. See Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987).
240
See supra Part II.D. (discussing expert testimony concerning eyewitness identification).
2009]
485
9. All identification procedures should be videotaped.
10. An eyewitness should make a clear statement of his or her confidence at
the time of the identification and prior to receiving any feedback.
11. Once a mistake is made in an identification procedure, it cannot be
corrected.
VII. GUIDELINES FOR EVALUATING THE FAIRNESS
OF IDENTIFICATION PROCEDURES
The following eleven guidelines, derived from scientific studies of
identification procedures, can be used to objectively evaluate whether a
photo array or lineup was conducted in a fair and unbiased manner.241 For
detailed guidelines on the proper use of mug books, composite images, and
showups, consult the National Institute of Justice’s Training Manual.242
The guidelines for conducting fair and unbiased photo arrays and lineups
are in bold and a brief rationale for each guideline is included.
1. Whenever possible, law enforcement should use a
lineup or photo array only when there is probable cause
to believe the suspect committed the crime.243
Most erroneous eyewitness identifications result from
identification procedures that do not include the perpetrator
of the crime.244 If law enforcement conducts photo arrays
and lineups only when probable cause exists that the suspect
committed the crime, the number of perpetrator-absent
lineups and photo arrays, and therefore the number of
erroneous identifications of an innocent suspect, will be
significantly reduced.245
“Probable cause” is the quantum of suspicion that is
required before the police may lawfully arrest someone and
241
Some of these procedures are already practiced by law enforcement officials; we include them
here not to suggest otherwise, but because they belong in any description of best practices that should
be followed.
242
NAT’L INST. OF JUSTICE, supra note 185, at 25–27, 30–32.
243
244
See Wells & Olson, supra note 13, at 286 (“Research repeatedly shows that culprit-absent
lineups present great problems for eyewitnesses.”).
245
See Steven Penrod, Eyewitness Identification Evidence: How Well Are Witnesses and Police
Performing?, 18 CRIM. JUST. 36, 46 (2003); Wise et al., Tripartite Solution, supra note 19, at 856
(“[L]aw enforcement agencies should distinguish between those eyewitnesses used to produce
investigatory leads and those used to establish a defendant’s guilt. An eyewitness used to generate
leads in a case should not also be used to establish a defendant’s guilt at trial.”); see also Wells &
Olson, supra note 13, at 286 (protesting that “investigators will place a suspect in a lineup for the
slightest of reasons (e.g., a mere hunch)”).
486
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246
charge him or her with a specific crime.
Thus, if the
suspect has already been lawfully arrested for the crime in
question, the probable cause standard suggested here imposes
no burdens or restrictions on law enforcement. When police,
however, believe that a suspect committed the crime, but lack
sufficient evidence to establish probable cause, including
such a suspect in a photo array247 or lineup248 can be a highly
246
See Maryland v. Pringle, 540 U.S. 366, 369–70 (2003). Although the term is codified in the
Fourth Amendment (“[A]nd no Warrants shall issue, but upon probable cause . . . .”) and has been the
subject of countless court decisions since the ratification of the Amendment, no clear definition of it
exists. The Supreme Court has observed that “[t]he probable-cause standard is incapable of precise
definition or quantification into percentages because it deals with probabilities and depends on the
totality of the circumstances.” Id. at 371; see also Illinois v. Gates, 462 U.S. 213, 231 (1983); Brinegar
v. United States, 338 U.S. 160, 175 (1949). Moreover, “‘the quanta . . . of proof’ appropriate in
ordinary judicial proceedings are inapplicable to” determinations of probable cause. Gates, 462 U.S. at
235 (citation omitted). Thus, “[f]inely tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision.”
Id. Rather, “[t]he substance of all the definitions of probable cause is a reasonable ground for belief of
guilt.” Pringle, 540 U.S. at 371 (citation omitted). A search or seizure of a person “must be supported
by probable cause particularized with respect to that person.” Id. (citing Ybarra v. Illinois, 444 U.S. 85,
91 (1979)).
247
Not only is a photo array much easier to arrange than a lineup, but law enforcement officials
may also conduct photo arrays before or after arraignment without first obtaining judicial authorization,
and without notice to the suspect or his attorney. See United States v. Ash, 413 U.S. 300, 318–21
(1973); supra notes 35–36 and accompanying text.
248
This is appropriate when:
(1) A suspect could voluntarily participate in a lineup.
(2) Where the suspect is already in custody on other charges, at least one court
has held that he can be forced to participate in a lineup regarding additional crimes if
the police have at least a “reasonable suspicion” that he is guilty of those crimes.
United States v. Allen, 408 F.2d 1287, 1288–89 (D.C. Cir. 1969). “Reasonable
suspicion” requires less evidence or information than probable cause, and permits
only temporary detention and, sometimes a frisk, rather than a custodial arrest and
full search. See Terry v. Ohio, 392 U.S. 1, 9–11 (1968). Reasonable suspicion
exists, the Court has held, when “the detaining officers . . . have a particularized and
objective basis for suspecting the particular person . . . of criminal activity.” United
States v. Cortez, 449 U.S. 411, 417–18 (1981). For a detailed discussion of the
difficulties in defining or distinguishing probable cause and reasonable suspicion,
see WAYNE R. LAFAVE, 4 SEARCH AND SEIZURE 470–77, § 9.5(a) (4th ed. 2004).
(3) At least one court permitted police to compel such a suspect to participate in
other-crime lineups without first showing either probable cause or reasonable
suspicion as to the other crimes. See State v. Wilks, 358 N.W.2d 273, 277–78 (Wis.
1984).
(4) A prosecutor might persuasively argue by analogy to other Supreme Court
decisions upholding grand jury subpoenas (for which no preliminary showing of
reasonableness is needed) compelling a suspect to provide a handwriting exemplar
or a voice exemplar. See United States v. Mara, 410 U.S. 19, 22 (1973); United
States v. Dionisio, 410 U.S. 1, 13–14 (1973); see also Hayes v. Florida, 470 U.S.
811, 816–17 (1985) (suggesting that a court might have authority to order a suspect
to submit to being fingerprinted where the police have shown “reasonable
suspicion” that he is the culprit). Placing a suspect in a lineup without probable
cause, however, probably does not occur very often. The police may not know
where the suspect is, or may not want to alert him or her that he or she is a suspect.
Moreover, conducting a lineup requires far more preparation than showing an
eyewitness a series of photographs, and may be more intimidating to the eyewitness.
2009]
487
useful step in acquiring sufficient evidence to establish
probable cause. Thus a conflict often arises between
legitimate investigative concerns, on the one hand, and the
need to safeguard against an increased risk of erroneous
identifications, on the other.
A variety of solutions exist to this dilemma. Sometimes
it is practical to postpone a photo array or lineup while the
Where there are several
police investigate further.249
eyewitnesses to a crime, police might show a photo array to
one eyewitness; if he or she identifies the defendant as the
perpetrator, the identification establishes probable cause,
which justifies an arrest and, thereafter, a lineup at which
other eyewitnesses will (hopefully) identify the defendant as
well.250
Where a pre-probable cause lineup is necessary, the risk
of an erroneous identification can be reduced if the police
scrupulously follow the guidelines set forth in this Article: a
sequential lineup, conducted by an officer who does not
know the identity of the suspect, with at least twelve
participants, preceded by appropriate cautionary instructions,
and so on. Similarly, if police need an eyewitness to attempt
a pre-probable cause photo identification, using a photo array
has the same shortcomings as a lineup. It should be
permissible, however, to ask the eyewitness to look at a large
collection of photos or mug-shots, if they are presented in a
fair and unbiased manner, and the eyewitness is warned that
the perpetrator’s picture may not be among them.251 Doing
so would reduce, though not eliminate, the risk that the
eyewitness will select the suspect’s photo merely because, of
the photos shown, his photo most closely resembles the
perpetrator.252 If these procedures are followed, a court
249
If the suspect is already incarcerated on other charges, for example, there may be little concern
that he or she will commit additional crimes before an arrest is made in the pending investigation.
250
The second eyewitness’s identification of the defendant would circumstantially corroborate the
reliability of the first eyewitness’s identification at the pre-probable cause photo array, thereby giving
assurance of its reliability—provided, of course, that both the photo array and the lineup were fair and
unbiased.
251
NAT’L INST. OF JUSTICE, supra note 185, at 29–35 (describing the procedures that should be
used when the police show mug-shots to eyewitnesses).
252
At least one scholar urges that an eyewitness who police use to generate leads in a case should
not be permitted to make an identification at trial. See Penrod, supra note 245. The reasons for this
assertion are that once an eyewitness identifies someone as the perpetrator, it is very unlikely that the
eyewitness will change his or her mind because of the commitment effect and the reconstructive nature
of memory. Accordingly, if the police place a suspect in a lineup based only on a hunch, there is a
much greater chance that they are conducting a culprit-absent lineup, and if the eyewitness chooses the
488
[Vol. 42:435
should have fewer qualms about allowing that eyewitness to
make an in-court identification at trial.
2. Before conducting an identification procedure, it
should be determined whether the eyewitness has
previously seen the suspect before or after the crime.253
Studies strongly indicate that if an eyewitness has
previously seen the suspect, such as in a mug-shot, this
substantially increases the probability that the eyewitness will
select the suspect in a subsequent identification procedure
even if the suspect is innocent.254
3. Only one suspect should be included in every
identification procedure.255
Studies show that including more than one suspect in an
identification procedure increases the probability that an
erroneous eyewitness identification will occur.256 This
increased error rate occurs because multiple suspects
decrease the number of fillers257 (i.e., known innocent
participants) and increase the frequency with which an
eyewitness will select someone whom the police think is
suspect, it is unlikely the eyewitness will later change his or her mind. See NAT’L INST. OF JUSTICE,
supra note 185, at 25–30 (stating procedures that should be followed for mug books).
253
254
See Evan Brown et al., Memory for Faces and the Circumstances of Encounter, 62 J. APPLIED
PSYCHOL. 311, 311–18 (1977) (discussing the results of three experiments showing that people are
much better at recognizing a face than remembering where they saw the face, and that this tendency
makes it more likely for eyewitnesses to identify an innocent suspect as the perpetrator if the
eyewitness has previously seen the innocent suspect’s mug-shot); Koehnken et al., supra note 130, at
217 (“Research shows that identification errors may increase from previous exposure to a photograph
of the suspect. . . . Once a witness comes to a decision and expresses it, he or she may feel committed
and may be less willing to change the decision later.”).
255
NAT’L INST. OF JUSTICE, supra note 185, at 35 (“In multiple-suspect lineups, the probability of
a possible mistaken identification rises as the number of suspects in a lineup increases.”). Wise et al.
also advocate for this procedure, stating:
Many lineups in the United States contain more than one suspect, even when there is
only one perpetrator who committed the crime. Research has shown that the use of
multiple suspects in identification procedures significantly increases the risk of
erroneous identifications. This increased risk occurs because multiple suspects
decrease the proportion of fillers in the lineup and increase the number of correct
responses. Putting more than one suspect in a lineup significantly increases the
probability that an eyewitness will choose an innocent suspect.
Wise et al., Tripartite Solution, supra note 19, at 857–58 (footnotes omitted).
256
Wells et al., From the Lab, supra note 15, at 593; see also R. C. L. Lindsay & Gary L. Wells,
Improving Eyewitness Identifications from Lineups: Simultaneous Versus Sequential Lineup
Presentation, 70 J. APPLIED PSYCHOL. 556, 557 (1985).
257
A lineup or photo array contains a suspect and several known innocent individuals. Wells et
al., From the Lab, supra note 15, at 584. The innocent members of an identification procedure are
referred to either as distractors, foils, or fillers. Id. at 584–85. The term “fillers” is used in this Article
because it is the term that is most commonly used by law enforcement. Id.
2009]
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258
guilty.
4. The number of lineup participants should be increased
in identification procedures.259
In the United States, the typical photo array or lineup
contains five or six members.260 Even if a five or six person
identification procedure is conducted in a manner that is
completely fair and unbiased, studies show that the chances
of an erroneous eyewitness identification is still
substantial.261 Studies also indicate that increasing lineup
size from six to twelve members in the United States could
reduce false identifications by fifty percent without a
significant drop in accurate identifications.262
5. The suspect in an identification procedure should not
258
Id. In other words, in the typical six-person lineup, if you have two suspects, you have
decreased the number of foils from five to four and have increased the number of “correct” choices
(i.e., the two suspects) from one to two, thereby substantially increasing the risk of an erroneous
identification.
259
Taslitz argues:
Lineups and photo spreads should also use a sufficient number of foils to
reasonably reduce the risk of an eyewitness selecting a suspect by guessing rather
than by recognition. The reason for this is straightforward. If there are six lineup
participants, none of whom is guilty, there is a one-in-six chance that a guessing
eyewitness will wrongly select the suspect. If there is a 10-person lineup, the risk of
a mistake falls to one in ten. There is no indisputable basis for selecting one number
over another. What is clear is that bigger is better. Researchers in the area have
roundly condemned the six-person lineup common in the United States,
recommending a 10-person size. The United Kingdom’s standard is a nine-person
lineup, a size that has not proven impracticable for the police to achieve. The same
principle applies to photo spreads, and the ABA policy does not make any
recommendation preferring lineups over photo spreads or vice-versa.
Taslitz, supra note 234, at 21 (internal citations omitted); see also Wise et al., Tripartite Solution,
supra note 19, at 858.
260
Avraham M. Levi & R. C. L. Lindsay, Lineup and Photo Spread Procedures: Issues
Concerning Policy Recommendations, 7 PSYCHOL. PUB. POL’Y & L. 776, 787 (2001); Wells et al.,
Eyewitness Evidence, supra note 13, at 62; see also ROY S. MALPASS, EYEWITNESS IDENTIFICATION
RESEARCH LABORATORY, UNIV. OF TEX. AT EL PASO, A LINEUP EVALUATION “DO-IT-YOURSELF KIT”
FOR ATTORNEYS AND LAW ENFORCEMENT 4–5, available at http://eyewitness.utep.edu/Documents/
DIY%20Kit.pdf. Malpass sets forth a mathematical formula for evaluating the functional size of a
lineup (i.e., if certain fillers fail to draw or draw too few choices from mock witnesses or certain fillers
draw too many choices from mock witnesses). Id.
261
Levi & Lindsay, supra note 260, at 787.
262
See Wells et al., Eyewitness Evidence, supra note 13, at 62 (“Thus, adding six additional
members to a six-person lineup reduces the chances of mistaken identification from 16.7% to 8.3%
(i.e., among those making an identification).”); see also Levi & Lindsay, supra note 260, at 787
(arguing that the use of nine- or ten-person lineups in England and twelve in Canada suggests that the
use of larger lineups will not inhibit identifications: “Available research evidence shows no decline in
correct identification from simultaneous lineups of at least 20 persons. Mug shot research suggests that
even larger lineups may not compromise correct identification rates.” (internal citations omitted));
Wells et al., Eyewitness Evidence, supra note 13, at 63 (finding that eyewitnesses could view over 300
photos without a drop in the number of accurate identification and arguing that an increase in lineup
size could play an important role in reducing eyewitness error).
490
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263
stand out from the foils.
If a suspect stands out from the foils in an identification
procedure, it cannot be reliably determined if the
eyewitness’s identification of the suspect is due to the
eyewitness’s memory or the manner in which the lineup was
When this occurs, it may substantially
conducted.264
diminish or even eliminate the validity of the identification as
evidence of the defendant’s guilt.265 There are several
procedures that are necessary to prevent this type of error.
First, the foils should generally match the eyewitness’s
description of the perpetrator of the crime.266 Second,
suspects should be placed in different positions in each lineup
by having the suspect’s position in the lineup randomly
determined.267 Random positioning of the suspect rather than
placing a suspect always in the same position prevents a
suspect’s position in an identification procedure from
becoming common knowledge among law enforcement and
263
Wise et al., Tripartite Solution, supra note 19, at 859 (“Likewise, in an identification
procedure where the suspect stands out, it cannot be determined if the eyewitness selected the suspect
because he or she recognized the suspect as the perpetrator of the crime, or because of the biasing effect
of the fillers in the indentification procedure.”).
264
Wells et al., Eyewitness Evidence, supra note 13, at 63; see also MALPASS, supra note 260, at
2 (delineating a mathematical test for evaluating lineup bias produced by filler selection).
265
Wells et al., Eyewitness Evidence, supra note 13, at 63; see also MALPASS, supra note 260 at
2.
266
The National Institute of Justice’s Training Manual states that police should:
Select fillers who generally fit the witness’s description of the perpetrator. When
there is a limited/inadequate description of the perpetrator provided by the witness,
or when the description of the perpetrator differs significantly from the appearance
of the suspect, fillers should resemble the suspect in significant features.
This does not mean that the fillers must closely resemble the suspect . . . If the
description does not fit the suspect on some characteristic (e.g., the witness
described dark hair, yet the suspect has light hair), then the fillers should match the
suspect on that characteristic rather than matching the description on that
characteristic so that the suspect does not stand out.
NAT’L INST. OF JUSTICE, supra note 185, at 36; Wells et al., Eyewitness Evidence, supra note 13, at 62
(“The general recommendation for selecting fillers for lineups has been to use the eyewitness’s
description of the target and take any additional measures needed to make sure that the suspect does not
stand out in the lineup.”). For detailed procedures in selecting fillers when the suspect does not match
the eyewitness’s description, the suspect has unique non-described features, the suspect has common
non-described features, the eyewitness description of the perpetrator is unique, or there is more than
one eyewitness, see Wells et al., Eyewitness Identification Procedures, supra note 12, at 632–34.
267
NAT’L INST. OF JUSTICE, supra note 185, at 36 (“If specific investigators consistently choose
the same lineup location for the suspect, this can become common knowledge among both law
enforcement officers and the general public. This could lead a witness to pick the person in that
position for reasons other than recognizing the suspect.”); see also Wogalter et al., supra note 179, at
72 (“Most officers report that they usually place the suspect in the middle of both live (87%) and
photographic lineups (81%) as opposed to the beginning (left) and end (right) positions, but
approximately one-half (47%) of those who construct live lineups said that they allow suspects to
choose their location.”).
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268
the general public. Third, fillers should not be reused with
the same eyewitness.269 When the same fillers are used with
a new suspect they make the suspect stand out because the
suspect is the only person not appearing in a previous
identification procedure.270 Finally, the manner in which the
lineup is conducted should not draw the eyewitness’s
attention to the suspect.271
6. Law enforcement should use sequential identification
procedures.272
In a simultaneous lineup, an eyewitness views all
participants in the lineup at the same time.273 In a sequential
lineup, members are presented individually to the
eyewitness.274 Each lineup participant in a sequential lineup
is shown only once, and the eyewitness must decide before
seeing the next lineup participant if he or she is the
perpetrator.275 Furthermore, the eyewitness is not told how
many participants there are in the lineup.276 Compared to
simultaneous lineups, sequential lineups reduce eyewitness
error because they tend to force an eyewitness to make an
absolute rather than a relative judgment when making an
identification.277 When an eyewitness employs an absolute
268
Id. at 36–37 (“Using the same fillers with a new suspect can make the suspect stand out as the
only one not appearing in a previous lineup. This could be considered a suggestive procedure. Also,
the witness might recognize one of the fillers (from seeing him/her in a previous lineup) and
misidentify the filler as the perpetrator.”).
270
Id.
271
COSTANZO, supra note 1, at 185. For example, the suspect should not be the only lineup
member to repeat what the perpetrator said during the crime. See Koehnken et al., supra note 130, at
211 (explaining how other biased conditions of a lineup could make the suspect stand out from the
foils, for example, if the suspect was the only one wearing handcuffs).
272
273
Wells et al., Eyewitness Evidence, supra note 13, at 63.
274
Id.
275
Id.
276
Id.; see also Stinson et al., supra note 124, at 212 (explaining how a sequential lineup is
conducted).
277
Wells et al., From the Lab, supra note 15, at 586; NAT’L INST. OF JUSTICE, supra note 185, at
44. The State of New Jersey requires sequential lineups, and a New York court ordered a double-blind
sequential lineup in at least one case. Headley, supra note 183, at 699–700. Moreover:
New Jersey’s reforms have influenced other states to examine the possibility of
adopting similar lineup protocols. In 2002, Illinois Governor George H. Ryan’s
Commission on Capital Punishment, charged with ensuring the accuracy and
justness of capital punishment in Illinois, recommended the implementation of
eyewitness identification reforms.
The North Carolina Actual Innocence
Commission created a series of recommendations in 2003 for state law enforcement
officers, including a comprehensive lineup protocol. In early 2005, the Avery Task
Force made similar recommendations for the Wisconsin criminal justice system.
The Virginia General Assembly also instructed the Virginia State Crime
269
492
[Vol. 42:435
judgment, the eyewitness identifies the suspect because his or
her appearance matches the eyewitness’s memory of the
perpetrator of the crime and not because the suspect most
closely resembles the perpetrator.278 Although one study,
conducted in Illinois, suggested that sequential identification
procedures were of dubious value, the results of that study
are flawed because of a design defect: double blind lineups
were used only for the sequential lineups and not for
simultaneous lineups.279
Commission to create guidelines for improving lineup procedures in the
commonwealth.
Klobuchar et al., supra note 183, at 386–87 (footnotes omitted).
278
Wells et al., Eyewitness Identification Procedures, supra note 12, at 613–14 (“Under
[simultaneous lineup] conditions, the relative judgment process will nevertheless yield a positive
identification because there will always be someone who looks more like the culprit than do the
remaining lineup members. The problem . . . therefore, is that it includes no mechanism for deciding
that the culprit is none of the people in the lineup.”); Wells et al., Eyewitness Evidence, supra note 13,
at 61.
279
In a recent study, conducted on behalf of the State of Illinois, however, Sheri H. Mecklenburg
found that the use of sequential lineups did not reduce erroneous identifications. SHERI H.
MECKLENBURG, REPORT TO THE LEGISLATURE OF THE STATE OF ILLINOIS: THE ILLINOIS PILOT
PROGRAM ON SEQUENTIAL DOUBLE-BLIND IDENTIFICATION PROCEDURES iv (2006), available at
http://www.psychology.iastate.edu/FACULTY/gwells/IllinoisReport.pdf (“Surprisingly, the Illinois
data did not bear out the research experiments that sequential, double-blind lineups produce a lower
rate of known false identifications. Instead, the sequential, double-blind procedures resulted in an
overall higher rate of known false identifications than did the simultaneous lineups.”). Gary L. Wells,
a leading eyewitness researcher and a developer of the sequential lineup, pointed out an important
design flaw in the Illinois study:
My main reaction to this report is disappointment and concern that the design of
the study does not permit any clear conclusions. The reason that it does not permit
clear conclusions is because the simultaneous lineups never used the double-blind
procedure whereas the sequential lineups always used the double-blind procedure.
This is extremely problematic because the failure to use double-blind procedures
with the simultaneous lineups leaves open several “lineup-administrator influenced”
means by which filler identifications could be suppressed and identifications of the
suspect enhanced. These lineup-administrator influences were not available for the
sequential because the sequential was conducted using double-blind procedures.
Gary L. Wells, Gary L. Wells’s Comments on the Mecklenburg Report 1 (2006), available at
http://www.psychology.iastate.edu/FACULTY/gwells/Illinois_Project_Wells_comments.pdf
(last
visited Feb. 25, 2009). Wells continues, stating:
I was shocked when I learned of the failure of the study to include a double-blind
control for the simultaneous lineups, a fact I learned only when I read the final
report. Nancy Steblay clearly states that she too had no idea that this study would
have this design flaw. I have asked Sherri [sic] Mecklenburg to correct this
misperception, but no corrections have yet been made as far as I am aware.
Id. Nancy Steblay, another prominent eyewitness expert, states, “My primary concern with the Illinois
report is that its conclusion appears to [have] . . . minimal appreciation of the underlying reasons for
these outcomes or the broader context of what is known about eyewitness fallibility.” NANCY
STEBLAY, OBSERVATIONS ON THE ILLINOIS LINEUP DATA 6 (May 3, 2006), available at
http://web.augsburg.edu/~steblay/ObservationsOnTheIllinoisData.pdf.
She also reports that
“[Hennepin County]’s conclusion is that the blind-sequential procedure is working well in Minnesota.
Acceptable suspect ID rates and lower filler rates suggest a protocol that will help to convict the guilty
and protect the innocent.” Id. at 7.
The experience of the pilot project [in Hennepin County] indicates that the double-
2009]
493
7. The lineup administrator should not know the identity
of the suspect.280
Scientific studies show that when the lineup
administrator knows the suspect’s identity in an identification
procedure, he or she can intentionally or unintentionally
cause the eyewitness to choose the suspect through verbal
and non-verbal cues.281 The eyewitness is generally unaware
that the lineup administrator has influenced his or her
identification of the suspect.282
blind sequential protocol is workable for police in both large and small departments
without undercutting the ability to solve cases. At the same time, the protocol elicits
valuable new information for the effective investigation and prosecution of criminal
cases.
Klobuchar et al., supra note 183, at 413. Commenting on the Mecklenburg Report and comments by
Wells and Steblay, several prominent psychologists remarked:
If it is the case that the better outcome from the non-blind/simultaneous
procedure is partly or entirely attributable to subtle, unintentional cues provided by
the administrator, then the Illinois result may simply underscore that the present
procedure produces a biased outcome that may ultimately result in the increased
conviction of innocent individuals.
Daniel L. Schacter et al., Policy Forum: Studying Eyewitness Investigations in the Field, 32 L. & HUM.
BEHAV. 1, 4 (2008). The State of Wisconsin also decided not to change its new eyewitness procedures
in response to the Illinois report, stating that “the design of the program does not seem to support [the]
inference or conclusion [that the higher rate of filler identification is due to the sequential procedure].”
BUREAU OF TRAINING AND STANDARDS FOR CRIMINAL JUSTICE, WIS. DEP’T OF JUSTICE, RESPONSE TO
CHICAGO REPORT ON EYEWITNESS IDENTIFICATION PROCEDURES 3–4 (2006), available at
http://www.doj.state.wi.us/dles/tns/ILRptResponse.pdf. It further states that “the extensive prior
laboratory research revealing that the double-blind and sequential procedures are superior remains the
best scientific information available.” Id. at 4.
280
281
See Bradfield et al., supra note 12, at 112, 118 (“A lineup administrator who is invested in the
outcome of a witness’s identification cannot be expected to have the same reaction (verbally or
nonverbally) to a filler identification that he or she has to an identification of the suspect. Even if
investigators are cautioned against giving feedback to eyewitnesses, involuntary reactions to a
witness’s selection are difficult to conceal.”); Sarah M. Greathouse & Margaret Bull Kovera,
Instruction Bias and Lineup Presentation Moderate the Effects of Administrator Knowledge on
Eyewitness Identification, 33 L. & HUM. BEHAV. 70, 80 (2009) (advocating for a double-blind lineup
procedure); Taslitz, supra note 234, at 21; Wells et al., Eyewitness Evidence, supra note 13, at 63; see
also Ryann M. Haw & Ronald P. Fisher, Effects of Administrator-Witness Contact on Eyewitness
Identification Accuracy, 89 J. APPLIED PSYCHOL. 1106, 1106 (2004) (“Despite research findings
showing its benefits, police are resistant to using double-blind testing because they perceive it as a loss
of control and as a suggestion that they cannot conduct fair lineups.”). In a double-blind lineup, neither
the eyewitness nor the lineup administrator knows the identity of the suspect. Bradfield et al., supra
note 12, at 118. Double-blind lineups also preclude the eyewitness from looking to the lineup
administrator for clues as to the identity of the suspect or for confirmation that the eyewitness has
chosen the suspect. Id. Finally, they prevent the lineup administrator from artificially increasing the
eyewitness’s confidence. Id.; see infra Part VII.8. (discussing that eyewitnesses should be given
cautionary instructions).
282
See Haw & Fisher, supra note 281, at 1110 (“Witnesses were most confident when their lineup
selection confirmed the administrator’s beliefs. Nevertheless, almost none of the witnesses (4.7%) or
lineup administrators (0%) were aware of the lineup administrator’s influence.”); Wells & Bradfield,
supra note 118, at 374 (“These data suggest that the eyewitness who is asked at trial whether the
comments of a lineup agent is influencing the way they are answering the questions at trial is in fact
494
8. Eyewitnesses
instructions.283
should
be
given
[Vol. 42:435
cautionary
The lineup administrator should provide the eyewitness
with the following cautionary instructions. First, he or she
should be told that it is just as important to clear innocent
suspects as it is to identify guilt suspects.284 This instruction
emphasizes to the eyewitness that not identifying a lineup
participant may be the correct decision.285 Second, the
eyewitness should be advised that the perpetrator’s
appearance may have changed since the crime.286 Many
physical characteristics such as hair are changeable and
perpetrators frequently alter their appearance when they
participate in an identification procedure.287 Third, the
eyewitness should be informed that the person who
committed the crime may not be in the photo array or
lineup.288 Research shows that this instruction significantly
reduces eyewitness error with a minimal reduction in correct
identification.289 Fourth, the eyewitness should be instructed
that the lineup administrator does not know the identity of the
suspect.290 This prevents the eyewitness from looking to the
unable to accurately report on that influence.”). An Illinois study criticized the use of the double-blind
method, however, as previously indicated, claiming that the design of that study was seriously flawed.
See discussion supra note 279 (criticizing the Mecklenburg study for its design flaw of failing to use
double-blind administrations with both sequential and simultaneous lineups).
283
284
NAT’L INST. OF JUSTICE, supra note 185, at 40 (“This advice helps emphasize that failure to
identify the suspect might be, in some cases, the appropriate outcome. Clearing an innocent suspect
from suspicion can help refocus the investigation on developing other suspects.”).
285
Id. at 39.
286
The National Institute of Justice notes:
Many physical characteristics are changeable. Hair, for instance, can be restyled,
colored, cut, or grown longer; facial hair can be grown or cut; and so forth.
Witnesses need to keep in mind that the suspect’s appearance on these changeable
features might have been different at the time of the photo than it was at the time of
the crime.
Id.; see also Narby et al., supra note 181, at 35–36 (discussing natural and deliberate changes in a
perpetrator’s appearance since the commission of the crime).
287
NAT’L INST. OF JUSTICE, supra note 185, at 40; Narby et al., supra note 181, at 35–36.
288
NAT’L INST. OF JUSTICE, supra note 185, at 40; Taslitz, supra note 234, at 21; see also Wells et
al., Eyewitness Identification Procedures, supra note 12, at 615 (finding that an instruction that the
perpetrator might or might not be present “has the effect of reducing identifications when the
perpetrator is absent from the lineup while having no effect on identifying the perpetrator when the
perpetrator is in the lineup”).
289
See Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A Meta-Analytic Review
of Lineup Instruction Effects, 21 L. & HUM. BEHAV. 283, 287–94 (1997). Steblay’s study aggregated
the results of twenty-two prior studies on this topic using 2588 participants. The results showed that a
cautionary instruction warning that the perpetrator may not be in the lineup reduced the rate of
erroneous identifications by forty-two percent in culprit-absent identification procedures. It reduced
the rate of accurate identifications in culprit-present identification procedures by only two percent. Id.
290
Wells supports this safeguard, arguing:
2009]
495
lineup administrator for clues as to the identity of the suspect
or to confirm that he or she has chosen the suspect from the
lineup.291 Finally, the eyewitness should be advised that the
investigation will continue regardless of whether the
eyewitness makes an identification.292 This instruction
decreases the pressure on an eyewitness to make an
identification and lets the eyewitness know that the success
of the investigation does not depend on his or her
identification of the suspect.293
9. All identifications should be videorecorded.294
Videorecording of identification procedures is essential
to ensure that there is a complete, accurate record of the
identification procedures so that attorneys, judges, and jurors
can evaluate their fairness of the identification procedure.295
The person who administers the lineup should not only be blind as to which person
in the lineup is the suspect, but should also be perceived (by the eyewitness) to be
blind as to which person is the suspect. The rationale is simply to prevent
eyewitnesses from looking to the lineup administrator for cues as to which person to
select or for cues as to whether the person they selected is the “right person.”
Wells et al., Eyewitness Identification Procedures, supra note 12, at 630; see also Garrioch &
Brimacombe, supra note 134, at 306; Taslitz, supra note 234, at 21 (“The lineup administrator must
instruct witnesses . . . that they should not assume the administrator knows who is the suspect . . . .”).
291
Garrioch & Brimacombe, supra note 134, at 306; Wells et al., Eyewitness Identification
Procedures, supra note 12, at 630; see also Taslitz, supra note 234, at 21 (stating that the eyewitness
should be informed that the administrator does not know the identity of the suspect to reduce the risk of
the eyewitness guessing the suspect’s identity).
292
293
Id.
294
Saul M. Kassin, Eyewitness Identification Procedures: The Fifth Rule, 22 L. & HUM. BEHAV.
649, 649 (1998); Taslitz, supra note 234, at 22. Videorecording preserves any record of error or
suggestiveness:
Because most initial identifications of criminal suspects are done with photographs
(and a large percentage of jurisdictions in the U.S. use only photographs and never
use live lineups), the discovery of any ephemeral suggestive events that were
embedded in the photographic lineup remains almost entirely dependent on the
testimony of the case detective and the witness. Often, it is unclear that the witness
and the detective who administered the photographic lineup are properly motivated
to report suggestiveness. But, even if the witness and detective are motivated to
report any suggestiveness, they would have had to explicitly notice its significance
at the time, interpret it as a suggestive event, remember it for the weeks or
sometimes months that pass before being questioned, and then articulate it to the
questioning party. The scientific psychology literature is replete with evidence
supporting the conclusion that people are poor at being able to accurately report on
the variables that influence their responses and generally think that their actions are
self-directed. The general point is there are vey good reasons to believe that the
actual prevalence of suggestiveness in eyewitness identification procedures greatly
exceeds the ability of defense counsel to prove it.
Wells & Quinlivan, supra note 58, at 16 (internal citations omitted); see also Wise et al., Tripartite
Solution, supra note 19, at 863–64 (stating that videorecording allows juries, judges, and attorneys to
evaluate the fairness of an identification procedure).
295
Kassin, supra note 294, at 650.
496
[Vol. 42:435
Moreover, the other safeguards are of dubious effectiveness
if there is no objective, complete record of how the
identification procedures were conducted.296 Although the
failure to videorecord a lineup should not mandate
suppression of an eyewitness’s testimony, in a case where
there were no practical barriers to videorecording it, a judge
should be skeptical of police assurances that no
suggestiveness occurred. Furthermore, if the eyewitness is
allowed to testify, the judge should permit expert testimony
about the kinds of suggestiveness that might intentionally or
unintentionally occur at a lineup and should instruct the jury
that they should be cautious about relying on the testimony of
an eyewitness who made a prior identification at a lineup that
was not videorecorded.
10. “An eyewitness should make a clear statement of his
or her confidence at the time of the identification and
prior to receiving any feedback.”297
As we have seen, eyewitness confidence is the factor that
the trier of fact relies on most heavily in evaluating the
accuracy of eyewitness identification.298 Because eyewitness
confidence is highly malleable and because many factors can
increase confidence but not eyewitness accuracy, by the time
of trial, eyewitness confidence has little probative value in
In contrast, if an
assessing eyewitness accuracy.299
eyewitness’s statement of confidence is taken immediately
after an identification of a suspect and prior to any feedback,
it generally has a moderate, positive relationship to
eyewitness accuracy, at least for those eyewitnesses who
choose a suspect.300 Accordingly, statements of eyewitness
296
Id. at 652; Wise et al., Tripartite Solution, supra note 19, at 863–64.
298
299
Andrew E. Taslitz states:
Videotaping witness confidence statements at the time of the lineup or photo spread
discourages upward confidence drift over time, or at least enables defense counsel to
counter a witness’s sincere insistence at trial of perfect confidence in his or her
earlier identification of the defendant. For similar reasons, police are urged to
obtain confidence statements from witnesses at the time that they make the
identification.
Taslitz, supra note 234, at 22–23; Wells & Bradfield, supra note 118, at 375; Wells et al., Eyewitness
Identification Procedures, supra note 12, at 635; see also Klobuchar et al., supra note 183, at 390–91
(advocating for a double-blind procedure for eyewitness identifications).
300
See Gary L. Wells & Donna M. Murray, Eyewitness Confidence, in EYEWITNESS TESTIMONY:
PSYCHOLOGICAL PERSPECTIVES 155, 168–69 (Gary L. Wells & Elizabeth F. Loftus eds., 1984) (finding
that studies on eyewitness confidence generally indicate that highly confident eyewitnesses are only
somewhat more likely to make accurate identifications than less confident eyewitnesses); Wells et al.,
297
2009]
497
confidence should be taken immediately after the eyewitness
makes an identification and before extraneous factors can
influence it.301
11. Once a mistake is made in an identification
procedure, it cannot be corrected.
Because of the nature of memory, the effects of a
suggestive lineup procedure cannot be corrected by later
conducting a fair identification procedure.302
VIII. COMMON EYEWITNESS FACTORS DURING A CRIME
THAT AFFECT EYEWITNESS ACCURACY
Strong empirical evidence demonstrates that the following eyewitness
factors, which arise frequently during crimes, have a significant effect on
eyewitness accuracy. The effect of some of the eyewitness factors on
identification accuracy may appear obvious and simply a matter of
common sense. Nonetheless, because many eyewitness factors have a
counterintuitive effect on identification accuracy, we believe it is important
to include these common sense eyewitness factors as well. This list is not
comprehensive. Accordingly, judges and attorneys should consult an
eyewitness expert or the relevant scientific literature especially when
handling criminal cases where the primary or sole evidence of the
defendant’s guilt is eyewitness testimony. The eyewitness factors are
divided into three types: (1) eyewitness characteristics; (2) perpetrator
characteristics; and (3) and crime characteristics.
Eyewitness Identification Procedures, supra note 12, at 626 (“The facts [sic] that eyewitness
identification confidence is given great weight by jurors, that confidence is only modestly related to
accuracy under pristine conditions, and that confidence is malleable are all matters of considerable
importance.”). Although some more recent studies show that under some conditions eyewitness
confidence may have a greater relationship to eyewitness accuracy than earlier studies indicated,
researchers warn that
substantial CA [confidence accuracy] obtained in this study and in some
others . . . should not be construed as evidence that the confidence witnesses display
in court predicts the accuracy of their identification testimony. Myriad social,
cognitive, and statistical factors likely greatly attenuate the CA relationship over the
months between when a crime was witnessed and when the witness testifies. It is
not to courtroom testimony to which the current findings may generalize, but rather
to initial identification decisions made in nonbiased testing situations shortly after a
witnessed event.
D. Stephen Lindsay et al., Witnessing-Condition Heterogeneity and Witnesses’ Versus Investigators’
Confidence in the Accuracy of Witnesses’ Identification Decisions, 24 L. & HUM. BEHAV. 685, 695
(2000) (internal citations omitted).
301
NAT’L INST. OF JUSTICE, supra note 185, at 39–40.
302
Wise et al., Tripartite Solution, supra note 19, at 852; see also supra Parts III.A., V (discussing
the nature of eyewitness memory and why a biased identification procedure cannot be corrected by
later conducting a fair identification procedure).
498
[Vol. 42:435
TABLE 3:
COMMON EYEWITNESS FACTORS DURING A CRIME
THAT AFFECT IDENTIFICATION ACCURACY
A. Eyewitness Characteristics
1. Child eyewitnesses
2. Elderly eyewitnesses
3. Law enforcement officers
4. Alcoholic intoxication
5. Minor details
6. Unconscious transference
B. Perpetrator Characteristics
1. Cross-race bias
2. Disguises
3. Face distinctiveness
4. Weapon focus
C. Crime Characteristics
1. Exposure time
2. Forgetting curve and retention interval
3. Lighting
4. Stress
A. Eyewitness Characteristics
1. Child Eyewitnesses
When asked open-ended questions, children provide reasonably
accurate accounts of crime though they provide less information and
somewhat less accurate information than adults.303 Young children are
more likely than adults to be influenced by suggestion, peer pressures, and
other social influences.304 Therefore, it is essential with a child eyewitness
not to use suggestive questioning, repeated questioning, praise or rewards
for desired answers, criticism or disapproval for unfavorable responses, or
provide other forms of post-event information to the child.305
Children are also about as accurate as adults at making identifications
303
Id.; see also Joanna D. Pozzulo, Person Description and Identification by Child Witnesses, in 2
HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 283, 296 (Rod C. L. Lindsay et al.
eds., 2007) (stating that children are more eager to please the interviewer than adults and so they are
more likely to give answers that they think the interviewer wants them to give than adults).
305
304
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306
provided the perpetrator is present in the identification procedure. If the
perpetrator is absent from the lineup, however, children make more
erroneous eyewitness identifications because of their greater
suggestibility.307
2. Elderly Eyewitnesses
Like children, elderly eyewitnesses perform nearly as well as young
adults in identifying the perpetrator when he or she is present in the
lineup.308 Thus age appears to have little effect on the accuracy of
recognition memory.309 When a lineup does not contain the perpetrator,
however, like children, they make more mistaken identifications than
young adults.310 Elderly adults also appear to recall fewer details about a
crime than young adults.311 Some of this difference may, however, may be
a product of elder adults’ greater caution and less confidence than young
adults in their ability to recall the facts of a crime.312
3. Law Enforcement Officers
Although law enforcement officers are more skilled than lay
eyewitnesses at remembering the details or a crime, studies indicate they
are not better than lay eyewitnesses at identifying the perpetrator of a
306
See id.; see also Pozzulo, supra note 304, at 302 (“On a positive note, children as young as 5
years old can accurately identify a guilty suspect from a simultaneous lineup at the same rate as
adults.”).
307
COSTANZO, supra note 1, at 183; see also Pozzulo, supra note 304, at 302 (“Unfortunately, in
those cases where police have arrested an innocent suspect, children, even over 12 years of age, are
more likely than adults to make an identification of an innocent person.”).
308
James C. Bartlett & Amina Memon, Eyewitness Memory in Young and Older Adults, in 2
HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 309, 333 (Rod C. L. Lindsay et al.
eds., 2007) (“Within the lineup task, age-related deficits in correct rejections of target-absent lineups
are larger and more consistent than age-related deficits in correct identifications from target-present
lineups, a finding in line with a good deal of evidence from standard laboratory paradigms.”).
309
BARTOL & BARTOL, supra note 92, at 250. There is a limited amount of research on elderly
eyewitnesses. Thus, some of the present conclusions may have to be revised or modified as more
research is conducted. Id.; see also Kassin et al., supra note 117, at 408 tbl.1, 411, 412 tbl.4 (noting
that only fifty percent of the sixty-four eyewitness experts in their survey agreed with the eyewitness
statement that “elderly eyewitnesses are less accurate than are younger adults”).
310
Kassin et al., supra note 117, at 412.
311
See BARTOL & BARTOL, supra note 92, at 250–51 (“Older subjects do appear to be less adept
at free recall of an incident than younger adults; a finding also reported for children.”). One study
found:
Where straightforward comparisons have been made between different age
groups, young adults have been found to be significantly superior to old adults in
their accuracy of recall for perpetrator characteristics, environmental details, and
details of actions and events. This applies to both free recall (where the witness
provides a narrative account from his or her own perspective) and to cued recall
(where the witness responds to interviewer questions . . .).
Bartlett & Memon, supra note 308, at 312 (citations omitted).
312
See BARTOL & BARTOL, supra note 92, at 251.
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313
crime.
This result occurs because though people can be trained to give
more detailed accounts of crimes, their ability to identify faces cannot be
improved.314
4. Alcoholic Intoxication and Marijuana Use
Victims and eyewitnesses are frequently intoxicated when a crime is
committed.315 The limited research available on intoxicated
eyewitnesses316 indicates that alcohol primarily reduces memory for the
details of a crime and the ability of an eyewitness to identify the
perpetrator by interfering with his or her ability to perceive and encode the
crime rather than by affecting retrieval.317 In other words, though an
313
See Brigham et al., supra note 90, at 16 (stating that research has failed to show that officers
are better at identifying faces than ordinary citizens); Deffenbacher, supra note 102, at 379 (“Police . . .
may even have a pronounced bias to identify someone from a lineup.”). For example:
Yuille has shown that although both police trainees and veteran officers do not recall
more correct sequential action facts that [sic] do lay persons, they do recall more
correct descriptive facts about persons and scene details, and are more resistant to
the effects of suggestion concerning salient details, at least.
Id. at 380 (internal citations omitted).
314
Id. at 379; Narby et al., supra note 181, at 30.
315
See Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on Identification
Accuracy from Showups, 87 J. APPLIED PSYCHOL. 170, 170 (2002) (“Given the frequency of criminal
activity in alcohol-abundant environments, understanding the possible effects of alcohol on eyewitness
memory is critical.”); Narby et al., supra note 181, at 40 (“Evidence from police files suggests that
intoxicating substances, particularly alcohol, go hand in hand with many crimes. Both perpetrators and
witnesses are often intoxicated at the time of the event.” (internal citation omitted)); Sal A. Soraci et al.,
Psychological Impairment, Eyewitness Testimony, and False Memories: Individual Differences, in 1
HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR EVENTS 261, 282 (Michael P. Toglia et al.
eds., 2007) (“The question itself is also relevant because it is well known that events of forensic
importance, indeed the majority of violent assaults and other crimes, very often occur in the context of
substances that alter psychological and physiological processes of perpetrators, victims, and witnesses.”
(citations omitted)).
316
See BARTOL & BARTOL, supra note 92, at 242; Soraci et al., supra note 315, at 282
(“However, the psychological literature on the effects of these substances on recollections of complex
events is sparse, and, as a result, the specific memorial consequences of the ingestion of most drugs are
not well understood.”).
317
See BARTOL & BARTOL, supra note 92, at 242 (noting that ninety percent of the sixty-four
eyewitness experts in Kassin’s survey agree with the following statement: “Alcoholic intoxication
impairs an eyewitness later ability to recall persons and events.”); Kassin et al., supra note 117, at 408
tbl.1, 412 tbl.4. Laboratory research has shown that
alcohol consumption inhibits the encoding process when administered beforehand
and thereby impairs subsequent recall of information. However, research has been
somewhat limited in examining the influence of alcohol or drug usage on the
accuracy or completeness of eyewitness descriptions. One of the few empirical
studies examining the effect of alcohol consumption on witness recall was
conducted by Yuille and Tollestrup. In general, the authors found that consumption
of alcohol significantly impaired participants’ ability to recall details (in both
frequency and accuracy of recall) of the event and/or target person, regardless of
whether the participant recalled immediately (and under the continued influence of
alcohol) or 1 week later. Read, Yuille, and Tollestrup subsequently found similar
effects. In his archival analysis, Sporer also found that when witnesses had
consumed alcohol they were less able to report details about the perpetrator’s
appearance.
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intoxicated eyewitness will remember less about the crime and the
perpetrator, the information an intoxicated eyewitness recalls about a crime
tends to be almost as accurate as that recalled by a sober eyewitness.318
Because the intoxicated eyewitness remembers less about a crime, he or
she is more likely to make an erroneous identification than a sober
eyewitness when the perpetrator is not present in the photo array or
lineup.319
Furthermore, intoxicated eyewitnesses may be more susceptible to
suggestion and post-event information than sober eyewitnesses.320
Accordingly, it may be especially important to avoid suggestion and postevent information when questioning eyewitnesses who were intoxicated at
the time of the crime.321 Finally, one study suggested that if an intoxicated
eyewitness experiences a high degree of stress or arousal during the crime,
this tends to reduce the negative effects of moderate levels of alcohol
consumption on eyewitness memory.322
Only one study has assessed the effects of marijuana on eyewitness
testimony. The results indicated that when marijuana is consumed in
moderation, its effects on memory appear to be fairly small and
temporary.323
Christian A. Meissner et al., Person Descriptions as Eyewitness Evidence, in 2 HANDBOOK OF
EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 3, 11 (Rod C. L. Lindsay et al. eds., 2007) (internal
citations omitted); see also Narby et al., supra note 181, at 41 (“Empirical evidence supports the
importance of alcohol consumption as a variable that affects both the quality and quantity of recall, as
well as affecting identification tasks.”); J. Don Read et al., Recollections of a Robbery: Effects of
Arousal and Alcohol upon Recall and Person Identification, 16 L. & HUM. BEHAV. 425, 434 (1992)
(“With rare exception alcohol has been demonstrated not to impair retrieval processes and, in this
context, an effect of alcohol expectancy upon retrieval alone would be surprising.”); Soraci et al., supra
note 315, at 285 (“For the most part, investigations of the effects of drugs on memory have focused on
the encoding and storage stages, rather than retrieval. The reason is simple: the largest effects of drugs
are observed at these stages.”).
318
John C. Yuille & Patricia A. Tollestrup, Some Effects of Alcohol on Eyewitness Memory, 75 J.
APPLIED PSYCHOL. 268, 271 (1990) (“The accuracy of the information recalled was high in both
alcohol and control groups, although slightly lower when alcohol was consumed.”).
319
For example, a study found the following:
In the target-absent conditions, participants in the low-blood-alcohol-level
condition were more likely to make a correct rejection (.78) than were those in the
high-blood-alcohol-level condition (.48).
In the target-present conditions,
participants in the high-blood-alcohol-level group were as likely to make a correct
identification (.62) as participants in the low-blood-alcohol-level group (.68).
Dysart et al., supra note 315, at 173 (internal citations omitted); see also Yuille & Tollestrup, supra
note 318, at 272 (“Alcohol had no effect on the ability of witnesses to identify correctly a picture of the
thief 1 week later. However, alcohol did influence the number of incorrect choices when the thief’s
picture was not included in the photospread.”).
320
Soraci et al., supra note 315, at 288 (“Finally, it is likely that individuals who have consumed
alcohol may be less resistant to the effects of suggestion and post-event information. If true, more
precautions need to be taken during their interviews and interrogation.”).
321
Id.
322
See id. at 287 (stating that there is “some support for the lay idea that fear or stress can serve to
‘sober up’ someone who has been drinking, at least at moderate levels of consumption”).
323
John C. Yuille et al., An Exploration on the Effects of Marijuana on Eyewitness Memory, 21
INT’L J.L. & PSYCHIATRY, 117, 124 (1998).
502
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5. Minor Details
A witness’s ability to recall minor or peripheral details about a crime is
not related to identification accuracy.324 In fact, an eyewitness’s memory
for minor or peripheral details of a crime is inversely related to eyewitness
accuracy because an eyewitness who attends to peripheral details has fewer
cognitive resources available to encode the perpetrator’s face.325
6. Unconscious Transference326
Eyewitnesses sometimes identify as the perpetrator a bystander to the
crime or an individual they saw in a different context or situation.327 For
example, an eyewitness who viewed a mug-shot of a suspect who later
appears in a lineup may identify the suspect as the perpetrator of a crime
even though the suspect is innocent.328 Accordingly, it is always important
for law enforcement officials to determine prior to conducting an
identification procedure whether the eyewitness saw the suspect before or
after the crime.329
B. Perpetrator Characteristics
1. Cross-Race Bias330
Eyewitnesses make more accurate identifications of perpetrators of
their own race than other races.331
324
Gary L. Wells & Michael R. Leippe, How Do Triers of Fact Infer the Accuracy of Eyewitness
Identifications? Using Memory for Peripheral Detail Can Be Misleading, 66 J. APPLIED PSYCHOL.
682, 684 tbl.1 (1981).
325
Id.
326
This Article uses the term “unconscious transference” to refer to a specific type of source
monitoring error that occurs when the eyewitness misidentifies as the perpetrator of a crime a bystander
to a crime or a person they saw in another situation or context (e.g., identify an innocent suspect in a
lineup as the perpetrator because they previously saw the suspect’s mug-shot). See discussion supra
Part III.D. (concerning the source monitoring error and its contribution to erroneous eyewitness
testimony).
327
328
See Brown et al., supra note 254, at 315–16; Koehnken et al., supra note 130, at 217; see also
discussion supra Part III.C. This error may occur because the suspect in the lineup looks familiar since
the eyewitness earlier examined his or her mugshot. See discussion supra Part III.C. In short, the
eyewitness makes a source monitoring error and concludes that the familiarity of the suspect in the
lineup results from the eyewitness having observed the suspect commit the crime rather than because
he or she previously saw the suspect’s mugshot. See discussion supra Part III.D. (regarding the source
monitoring error).
329
See discussion supra Part VII.2. (regarding the importance of determining whether an
eyewitness has seen the suspect before or after the crime).
330
The term “bias” as used here does not mean racial animosity; rather, as many scientific studies
show, it means a person of a particular race is likely to be better at identifying a perpetrator of his or
her own race than he or she would be if the perpetrator was of a different race.
331
See Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race
Bias in Memory for Faces, A Meta-Analytic Review, 7 PSYCHOL. PUB. POL’Y & L. 3, 21 (2001).
Meissner and Brigham found in a study that the probability of a mistaken identification is 1.56 times
greater when a witness makes an other-race identification than when a witness makes a same-race
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2. Disguises
Even simple disguises such as a hat can make it significantly more
difficult for an eyewitness to make an accurate identification.332 A hat
decreases eyewitness accuracy because it conceals the perpetrator’s hair
and facial shape, which are important cues to identifying a person.333
3. Face Distinctiveness
Distinctive faces (e.g., faces that are highly attractive or unattractive)
are more likely to be recognized than faces that are non-distinctive.334
4. Weapon Focus
The presence of a weapon impairs an eyewitness’s ability to accurately
identify the perpetrator’s face.335 This occurs because the eyewitness tends
to focus on the weapon, which leaves less attention available to the
identification. Id. at 15. If this experimental finding carries over to real cases, then an innocent
African-American suspect has a fifty-six percent greater chance of being misidentified by a Caucasian
than an African-American eyewitness. See John C. Brigham et al., The Influence of Race on
Eyewitness Memory, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 257, 257–
58 (Rod C. L. Lindsay et al. eds., 2006) (“The cross-race effect (CRE), also known as the own-race
bias or other race-effect, refers to the consistent finding that adults are able to recognize individuals of
their own race better than faces of another, less familiar race.”); Narby et al., supra note 181, at 42
(“[T]here is little doubt that the own-race bias in recognition is reliable and appreciable in magnitude,
but the theoretical underpinnings of the effect are elusive.”).
332
Narby, Cutler, and Penrod made such a finding:
In our own research, we examined the effects of masking a target’s hair cues on
subsequent identification accuracy. In these experiments, participants viewed a
videotaped robbery and later attempted an identification from a line-up parade. In
half of the robberies the robber wore a knit pullover cap that covered his hair and
hairline. In the other half, the robber did not wear a hat. In these experiments
identification accuracy was appreciably reduced for subjects exposed to disguised
targets. For example, in one of the experiments, 45% of the participants gave
correct judgments on the line-up test if the robber wore no hat during the robbery,
but only 27% gave a correct judgment if the robber wore the hat during the robbery.
Narby et al., supra note 181, at 35 (citations omitted); see also Patterson & Baddeley, supra note 101,
at 416; Shapiro & Penrod, supra note 101, at 145; Wells & Olson, supra note 13, at 281.
333
Brian L. Cutler et al., Improving the Reliability of Eyewitness Identification: Putting Context
Into Context, 72 J. APPLIED PSYCHOL. 629, 635 (1987); Brian L. Cutler et al., The Reliability of
Eyewitness Identification, The Role of System and Estimator Variables, 11 L. & HUM. BEHAV. 233, 240
(1987).
334
Narby et al., supra note 181, at 34; Wells & Olson, supra note 13, at 281.
335
See Elizabeth F. Loftus et al., Some Facts About “Weapon Focus,” 11 L. & HUM. BEHAV. 55
(1987). In one study:
[S]ubjects who viewed a simulated armed robbery spent more time looking at the
weapon than control subjects who saw a virtually identical scene involving a check.
They made more eye fixations on the gun, and those fixations were of longer
duration. One consequence was a reduced ability to recognize the individual
holding the weapon. In the second experiment, subjects who saw the event
containing a weapon were not only less likely than controls to accurately identify the
perpetrator, but they were less accurate when they answered specific questions about
him.
Id. at 61; see also Kerri L. Pickel, Unusualness and Threat as Possible Causes of “Weapon Focus,” 6
MEMORY 277, 278 (1998); Steblay, supra note 101, at 416.
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336
eyewitness to observe the perpetrator’s face.
C. Crime Characteristics
1. Exposure Time
The less time an eyewitness has to witness a crime, the less
information the eyewitness will remember about it.337 In general, however,
the time an eyewitness has to view the crime is not as important as the type
or amount of attention the eyewitness paid to the crime.338 “Indeed, a
meta-analysis of facial recognition studies found that ‘quality of viewing,’
which focused centrally on the type of attention that participants paid to the
face . . . was the most important determinant of facial identification
performance.”339
336
See COSTANZO, supra note 1, at 178; Meissner et al., supra note 317, at 10 (“[S]tudies of the
‘weapon focus’ effect have generally demonstrated a significant influence of the presence of a weapon
on person description accuracy.” (internal citation omitted)).
337
See Meissner et al., supra note 317, at 9 (“Yarmey, Jacob, and Porter conducted a study in
which participants interacted with a target person for 5 seconds or 30 seconds and were subsequently
asked to describe the encounter. As expected, their results indicated that person descriptions . . . were
superior when participants had a longer time to observe the target person.” (internal citation omitted));
see also Narby et al., supra note 181, at 37 (“Although some investigations show a linear increase in
face recognition accuracy with exposure time, others show a logarithmic relationship. That is, as
exposure duration increases, face recognition accuracy improves, but the improvements become
smaller at long durations. This finding was supported in the Shapiro and Penrod meta-analysis.”
(internal citations omitted)).
The first of the Biggers criteria is the opportunity of the witness to view the
criminal at the time of the crime. This post-dictor concerns both quantity and
quality of view. Intuitively, jurors should be confident in eyewitnesses who had
long and unobstructed views of the criminals. Much work in facial recognition has
shown that one aspect of the opportunity to view the criminal, namely, increasing
the amount of time a person views another individual’s face, leads to boosts in
recognition accuracy. However, two caveats apply to these findings. First, facial
recognition studies have tended to assess memory with the exact same photographs
that the person originally studied. More recent experiments have shown that using
different and dissimilar photographs reduces the impact of exposure time on
recognition accuracy.
Second, at times, the only way to gauge how much time a witness had to view
the culprit is to ask the witness to estimate it. People, unfortunately, tend to
overestimate the duration of events.
Deanna D. Caputo & David Dunning, Distinguishing Accurate Eyewitness Identification from
Erroneous Ones: Post-Dictive Indicators of Eyewitness Accuracy, in 2 HANDBOOK OF EYEWITNESS
PSYCHOLOGY: MEMORY FOR PEOPLE 427–29 (Rod C. L. Lindsay et al. eds., 2006) (internal citations
omitted).
338
Caputo & Dunning, supra note 337, at 429 (“There are many different ways that witnesses can
attend to a culprit, and the seriousness and depth of this attention can influence identification accuracy
in significant ways.”); see also Wells & Olson, supra note 13, at 282 (“In general, the amount of time a
culprit’s face is in view is not as critical for eyewitness identification accuracy as the type or amount of
attention given by the witness.”).
339
Caputo & Dunning, supra note 337, at 429. Making physical determinations about a
perpetrator’s appearance does not necessarily lead to an accurate identification. If witnesses make
abstract judgments about a perpetrator’s appearance, they tend to more clearly recall that perpetrator
later on.
As would be expected, the amount of time a culprit’s face is in view affects the
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2. Forgetting Curve and Retention Interval
Research has demonstrated that memory loss for a crime or other event
is highest immediately after the crime occurs and then slows over time.340
Accordingly, eyewitness interviews and identification procedures should
be conducted as soon as possible after a crime.
3. Lighting
Poor lighting conditions negatively impact an eyewitness’s ability to
make an accurate identification.341
4. Stress
Very high levels of stress during a crime impair eyewitness
accuracy.342 Scientific research shows that different levels of stress can
have multiple, sometimes subtle, effects on eyewitness memory. As stress
increases, a tunnel memory effect is likely to occur.343 This effect causes
some information, such as a weapon, to be vividly remembered while
causing other information, such as the color of a perpetrator’s shirt, to be
poorly recalled.344 Moreover, very high levels of stress are likely to cause
a major deterioration in memory.345 High levels of stress tend to
substantially impair eyewitness memory because the stress activates the
eyewitness’s fight or flight response, which interferes with the
chances that the eyewitness can identify the person later. However, this relationship
depends less critically on the eyewitness’s opportunity to view per se and more on
the amount and type of attention that the witness directs at the culprit. Given equal
exposure time to a face, people are more likely to be able to recognize that face later
if they make abstract inferences about it. . . . (e.g., does this person have a large or
small nose?). Presumably, this effect occurs because the abstract inferences require
holistic processing of the face whereas the physical judgments require feature
processing.
Wells & Olson, supra note 13, at 282 (internal citations omitted).
340
See Caputo & Dunning, supra note 337, at 432 (“Studies looking at memory decay over time
have shown that memory for unfamiliar faces does decrease over time. Indeed, the amount of decay
tends to be far greater than people expect. As a consequence, identifications after a significant delay
can be quite problematic.” (internal citations omitted)); Deffenbacher, supra note 102, at 380; Meissner
et al., supra note 317, at 11–12 (“For example, Ellis, Shepherd, and Davies had participants describe
one face immediately after viewing it, and another either 1 hour, the next day, or 1 week following
exposure. Participants remembered significantly fewer details after 1 week compared with the two
shorter retention intervals . . . .” (internal citation omitted)).
341
See Wells & Olson, supra note 13, at 282 (“Clearly, at the extreme of low light levels there is a
point at which a face cannot be perceived well enough to be recognized later.”).
342
See Deffenbacher et al., supra note 102, at 699 (noting that the authors’ meta-analysis
supported the hypothesis that high levels of stress negatively affect both identification accuracy and the
eyewitness’s ability to recall crime details).
343
See Martin A. Safer et al., Tunnel Memory for Traumatic Events, 12 APPLIED COGNITIVE
PSYCHOL. 99, 99–100 (1998) (explaining that “tunnel vision” refers to a narrowing of attention to
particular aspects of a situation, which often occurs in stressful situations).
344
Id.
345
See Deffenbacher et al., supra note 102, at 699.
506
eyewitness’s ability to pay attention and process information.
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346
IX. THE ADMISSIBILITY OF EYEWITNESS IDENTIFICATIONS AT TRIAL
The previously discussed scientific findings about eyewitness
testimony also support several changes in current practices for when
eyewitness identifications should be admitted at trial. These changes
include the following:
1. If a pretrial identification was made at a procedure that
included significant risk of contamination,347 the prosecutor
should not be permitted to introduce evidence of it at trial,348
unless the use of that procedure was prompted by
investigative necessity.349
2. A prosecutor should be precluded from offering evidence
of a subsequent pretrial identification by the eyewitness
whose memory has been contaminated at an earlier
procedure, even if the later identification procedure was fair
and nonsuggestive.350
3. Where significant risk of contamination occurred, the
judge should preclude the eyewitness from making an incourt identification unless the prosecutor persuades the judge
that the identification will be the product of the eyewitness’s
memory of the crime, unaffected by the contamination.351
The Supreme Court has made it clear that the trial judge has a
346
See WEITEN, supra note 14, at 289–90.
Perfection cannot be demanded or expected, but courts should insist that the police or
prosecution avoid substantial bias or suggestiveness in their procedures.
348
Defense counsel should be permitted to introduce evidence of a pretrial identification
procedure that had a significant risk of contamination to show how its suggestiveness tainted the
eyewitness’s trial testimony.
349
Investigative necessity may arise, for example, during a street showup: shortly after the crime,
the police apprehend someone nearby who fits the description the eyewitnesses gave of the perpetrator.
In this situation, police need to know quickly whether to arrest the suspect, or release him with
apologies and continue to search for the perpetrator. Such necessity may also arise where a key
eyewitness is too ill to attend a lineup, and a hospital-room showup is necessary. See, e.g., Stovall v.
Denno, 388 U.S. 293, 295 (1967) (noting that, to obtain an identification, the police arranged with the
surgeon of a stabbing victim to bring the alleged assailant into the victim’s hospital room). The
Supreme Court acknowledged that though the procedure was exceptionally suggestive, it was
nonetheless justified by exigent circumstances, given concerns that the eyewitness-victim might die.
Id. at 302.
350
Substantial research documents that once an eyewitness’s identification of a suspect has been
contaminated, the damage cannot be repaired. See Wells et al., From the Lab, supra note 15, at 582–
83; Wise et al., Tripartite Solution, supra note 19, at 845–47; see also supra Table 1, Step 2.B. Indeed,
the Supreme Court acknowledged this in 1967. See United States v. Wade, 388 U.S. 218, 228–29
(1967).
351
For example, the prosecutor could argue that the viewing conditions were exceptionally good
because the kidnapping victim had prolonged repeated exposure to the perpetrator or the eyewitness
knew the perpetrator prior to the crime. See supra Table 1, Step 2.C.
347
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507
constitutional duty to protect against convictions based on
unreliable evidence.352 Given what is now known about the
irreparability of contaminated identifications353 and the
frequency with which erroneous convictions are based on
contaminated identification testimony,354 a strong argument
exists to preclude any eyewitness from giving identification
testimony when a serious risk exists that contamination has
occurred355—even if that contamination resulted from
investigative necessity, rather than sloppy police work or
reliance on discredited procedures.
We decline to adopt that position for now. But courts must do more
than pay lip service to their responsibility of vetting the reliability of
eyewitness identifications. If a judge does permit an eyewitness to make
an in-court identification after he or she has identified the defendant at a
seriously flawed pretrial identification procedure, the judge should inform
the jury of the risks involved in the eyewitness’s in-court testimony—
either by permitting the defense to call an eyewitness expert,356 or by
instructing the jury that they should be cautious about accepting an
eyewitness’s in-court identification where there had been a seriously
flawed pretrial identification,357 or both. Where a judge admits eyewitness
identification testimony despite a pretrial identification process that was
unnecessarily and significantly suggestive, such an instruction should
352
See discussion supra Part II.A.2.
See supra note 348.
354
See Wade, 388 U.S. at 229 (“‘[T]he influence of improper suggestion upon identifying
witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is
responsible for more such errors than all other factors combined.”).
355
356
The current judicial skepticism or antagonism toward expert testimony on this subject is no
longer justified. See supra Part II.D. Nevertheless, expert testimony is a problematic solution in many
cases, first, because there are not enough experts to provide such testimony in every case where it
would be relevant, and second, because many defendants would be unable to afford even a modest fee
for the expert. Finally, eyewitness expert testimony in its current form frequently results in increasing
juror skepticism rather than increasing juror sensitivity to the relevant eyewitness factors in a case. See
Wise et. al., Tripartite Solution, supra note 19, at 840. Accordingly, the most potent means available to
the criminal justice system to prevent eyewitness error is to conduct fair and unbiased eyewitness
interviews and identification procedures. Id. at 865.
357
As a rule, the weight to be given to any eyewitness’s testimony is for the jury, not the judge, to
decide. See, e.g., Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 216 (1931); Dunbar v. United
States, 156 U.S. 185, 196 (1895); see also CLIFFORD S. FISHMAN, JONES ON EVIDENCE §§ 3:33 (civil
cases), 5:15 (criminal cases) (7th ed. 1992); 1 JOHN WILLIAM STRONG ET AL., MCCORMICK ON
EVIDENCE § 328 (West Publishing Co., 4th ed. 1992); 81 AM. JUR. 2D Witnesses § 995 (2004). In
criminal cases, however, it is common for the judge to admonish a jury to view certain eyewitnesses’
testimony with particular caution. Many jurisdictions, for example, require a judge to give a cautionary
instruction when an erstwhile accomplice testifies for the state against the defendant. See FISHMAN &
MCKENNA, supra note 76, § 5:55. Similarly, some courts permit or require a judge to give a cautionary
instruction if the eyewitness is a drug addict. 2 BARBARA E. BERGMAN & NANCY HOLLANDER,
WHARTON’S CRIMINAL EVIDENCE § 9:9 (15th ed. 1998). The same is true if the witness is a young
child. Id. § 7:16.
353
508
[Vol. 42:435
include an admonition that because an eyewitness’s memory and
confidence are highly malleable, an eyewitness may not be able to
accurately recall at trial (1) the quality of his or her view of the crime; (2)
the amount of attention he or she was able to pay to the crime; (3) how
much he or she remembers about the details of the perpetrator’s face; (4)
his or her reason for selecting the suspect at the pretrial identification
procedure; (5) how quickly or easily he or she identified the suspect at that
procedure; (6) his or her degree of confidence in the accuracy of the
identification when the identification was made; and (7) whether the lineup
administrator influenced his or her selection of the suspect.358
X. CONCLUSION
The method described in this Article provides judges and attorneys
with a practical and comprehensive means of analyzing the accuracy of
eyewitness testimony. Defense attorneys and prosecutors can also use this
method when seeking either to bolster or attack the accuracy of eyewitness
testimony at trial. Thus, prosecutors can use it to analyze eyewitness
testimony in a case to determine the factors that likely increased the
accuracy of the eyewitness testimony. For example, they can argue at trial
that the eyewitness testimony in the case is likely to be accurate because
proper procedures were followed in conducting the eyewitness interviews
and identification procedures. In addition, the prosecutor can point out to
the trier of fact the eyewitness factors during the crime, such as good
lighting, the absence of a disguise, and the long time the eyewitness had to
observe the perpetrator, that support the likely accuracy of the eyewitness’s
testimony.
This method also provides defense attorneys with a method for
systematically and comprehensively analyzing the weaknesses of the
State’s eyewitness evidence. Thus, a defense attorney can specify the
factors that made the eyewitness interview and identification procedures
unfair and biased and the eyewitness factors present during the crime that
probably decreased the eyewitness’s accuracy, such as a weapon, a
disguise, and a high level of stress.
In addition, this method, by emphasizing the importance of conducting
fair and unbiased eyewitness interviews and identification procedures,
exerts pressure on the legal system to take steps to improve the fairness of
358
For studies documenting these difficulties, see Wells & Bradfield, supra note 118, at 374;
Wise et. al., Tripartite Solution, supra note 19, at 869. Lawyers frequently question whether juries are
able to understand or follow cautionary or limiting instructions, and experience may prove that they are
little help in the eyewitness identification context, but use of such instructions is an experiment worth
trying—particularly where the alternatives are either categorical exclusion of a particular eyewitness’s
identification testimony, on the one hand, or acquiescence in the high percentage of wrongful
convictions based on erroneous eyewitness identification testimony, on the other.
2009]
509
interviews and identification procedures. Because improving the fairness
of eyewitness interviews and identification procedures is the most potent
means available to the legal system to prevent eyewitness error, this
method can encourage changes in interviews and identification procedures
that will significantly reduce eyewitness error.359 This method is also
congruent with evidentiary rules that provide that trace evidence is
admissible at trial only if the State followed proper scientific procedures in
collecting the evidence.360
Using this method for analyzing the accuracy of eyewitness testimony
is not limited to attorneys and judges. Law enforcement officers and jurors
can also use it to assess the likely accuracy of eyewitness testimony.
Moreover, jurors’ use of this method may not only produce more accurate
assessments of eyewitness testimony, but it may also reduce the need for
eyewitness expert testimony in criminal cases and, when used in
conjunction with expert testimony, may enhance its effectiveness.361
In applying the guidelines in this Article, it is important to remember
that researchers are continually making new discoveries about the causes
and remedies for eyewitness error. Accordingly, the guidelines and
eyewitness factors delineated in this Article will undoubtedly have to be
modified in the future to accommodate new research findings. For
example, some research has shown that certain factors, such as how
quickly an eyewitness makes an identification and the manner in which an
eyewitness identifies a suspect, may be useful indicators of eyewitness
accuracy.362 If additional research confirms the usefulness of these or other
359
FED. R. EVID. 403, 702, 901.
See Penrod & Cutler, supra note 169, at 114–15. As Cutler and Penrod stated, even experts
have difficulty applying their knowledge to the facts of a case. Id. The method discussed in this
Article would give jurors a means for applying the relevant eyewitness factors discussed by an
eyewitness expert to the facts of a criminal case. Therefore, it might improve the effectiveness of
expert testimony in helping jurors to assess eyewitness accuracy.
362
Caputo & Dunning, supra note 337, at 435–36. For example, Caputo and Dunning point out
that some researchers have found that eyewitnesses who make an identification of a suspect between
ten and twelve seconds after being exposed to a lineup tend to be more accurate than eyewitnesses who
take longer to make an identification. Id. at 436–37. There is, however, as they point out, other
research that has not supported this conclusion. Id. at 437. “More recent research . . . has shown that
the 10–12 second rule is not stable across variations in witnessing and lineup conditions.” Wells et al.,
Eyewitness Evidence, supra note 13, at 67. “Weber et al. found that maximally discriminating time
ranged from 5 seconds to 29 seconds across variations in conditions. Furthermore, eyewitnesses who
responded faster than the optimal time boundaries did not show particularly high probabilities of being
accurate . . . .” Id. at 67–68 (citations omitted). Research has also indicated that eyewitnesses tend to
be more accurate when their identifications are “automatic and absolute” rather than “conscious,
effortful, and relative.” Caputo & Dunning, supra note 337, at 434. Identifications are automatic when
an eyewitness makes the identification without any conscious effort. Id. “Absolute” means that the
eyewitness made the identification because the suspect matched their memory of the perpetrator of the
crime rather than choosing the suspect because he or she most closely resembles the perpetrator. Wells
et al., From the Lab, supra note 15, at 585–86. As Caputo and Dunning point out, however, the
determination of the manner in which an eyewitness makes an identification can be difficult to
accurately assess because self-reports of the method used to make an identification are frequently
360
361
510
[Vol. 42:435
post-dictors in a wide array of eyewitness conditions, they can be
incorporated into the present method for analyzing eyewitness accuracy.363
The method discussed in this Article also suggests that there needs to
be a paradigm shift in the thinking of law enforcement and prosecutors
about eyewitness testimony. Law enforcement frequently conducts
eyewitness interviews and identification procedures in a manner that
unintentionally contaminates the eyewitness’s memory of the crime and
impairs the eyewitness’s ability to identify the perpetrator of the crime. In
addition, eyewitnesses often observe crimes under poor eyewitness
conditions.364 Because of these limitations in many criminal cases, this
method indicates that the State needs to minimize the number of criminal
cases that it brings where the sole or primary evidence of the defendant’s
guilt is eyewitness testimony. Furthermore, in criminal cases that rely
heavily on eyewitness testimony for proof of the defendant’s guilt, the
State needs to be especially careful that its eyewitness interviews and
identification procedures are fair and unbiased and that the eyewitness
conditions during the crime were conducive to an accurate identification.
This method also suggests that law enforcement and prosecutors need
to pay more attention to instances where an eyewitness either misidentifies
a filler in a lineup as the perpetrator or determines that the perpetrator is
not in the lineup.
Such misidentifications and non-identifications
frequently provide useful information that should cause law enforcement
and prosecutors to consider the possibility that the suspect is innocent
rather than elicit a reflexive response that the eyewitness made an error.365
inaccurate. “It has long been known that people are notoriously unskilled at accurately describing how
they reach their decisions. In the eyewitness context, researchers have observed participants comparing
photographs, only to be told by participants later that no comparison had occurred.” Caputo &
Dunning, supra note 337, at 436 (citations omitted); Wells et al., Eyewitness Evidence, supra note 13,
at 68.
Overall, it appears that postdiction has not been highly successful for eyewitness
identification . . . . This underscores the primary message of the system-variable
approach—namely, that it would be better to use procedures that help prevent
mistaken identifications from occurring in the first place than to try to detect errors
after the fact.
Id. This is another reason why the present method for assessing eyewitness accuracy discussed in this
Article emphasizes the importance of law enforcement conducting fair and unbiased eyewitness
interviews and identification procedures.
363
If additional empirical research establishes that these or other postdictors are useful and
practical indicators of eyewitness accuracy, they could be incorporated into the current method by
evaluating them after the fairness of the eyewitness interview and identification procedures are
examined and before assessing the eyewitness factors during the crime that may have affected
identification accuracy.
364
See Wells et al., Eyewitness Evidence, supra note 13, at 45 (“Many of the experiments
conducted in the late 1970s and throughout the 1980s resulted in articles by psychologists . . .
[explaining that] the validity of eyewitness reports depends a great deal on the procedures that are used
to obtain those reports and that the legal system was not using the best procedures.”).
365
See Caputo & Dunning, supra note 337, at 438 (“Depending on the circumstances . . . positive
identification of [an irrelevant] distractor [in a lineup might actually be worthwhile] evidence that the
suspect is innocent.”); see also Steve Charman & Gary L. Wells, Applied Lineup Theory, in 2
2009]
511
The most egregious error any legal system can make is to convict an
innocent defendant. Moreover, a wrongful conviction is not just a tragedy
for the innocent defendant and his or her family, but also for the victims of
crimes that occur because the true perpetrator of a crime was never brought
to justice. Wrongful convictions also undermine the credibility of a legal
system, especially when it fails to implement safeguards that could help
prevent them.366 By using the method described in this Article for
analyzing the accuracy of eyewitness testimony, judges and attorneys can
take a major step in reducing the number of wrongful convictions from
eyewitness error.
HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 219 (Rod C. L. Lindsay et al. eds.,
2006).
“For example, it is quite possible that criminal investigators too readily dismiss
nonidentifications for their exonerating qualities while readily accepting identifications of the suspect
for their incriminating qualities.” Id. at 220–21. “When properly designed and interpreted, a lineup
procedure has not only incriminating powers, but exonerating powers as well. In fact, there is clear
proof using mathematical formulations that any lineup that has incriminating value from the
identification of the suspect must also have exonerating value from a nonidentification.” Id. at 222.
366
As Risinger explains:
When the wrongful conviction is the product of an official inquiry by a court even in
a petty criminal or quasi-criminal context, it not only imposes pain that has a moral
claim to our recognition, but it is also seriously corrosive to the respect for law of
the wronged individuals, and that of all those around them who believe the
convicted were in fact innocent.
Risinger, supra note 11, at 789.
512
[Vol. 42:435
APPENDIX
FORM FOR EVALUATING THE ACCURACY
OF EYEWITNESS TESTIMONY
I. EYEWITNESS INTERVIEW
(Evaluate separately each interview of an eyewitness.)
A. Factors that Indicate the Interview Was Complete, Fair, and Did
Not Increase Eyewitness Confidence
1. List Factors that Indicate the Interview Obtained the
Maximum Amount of Information from the Eyewitness
2. List Factors that Indicate the Interview Was Fair and Did
Not Contaminate the Eyewitness’s Memory of the Crime
3. List Factors that Indicate the Interview Did Not Increase
Eyewitness Confidence
B. Factors that Indicate the Interview Was Incomplete, Biased, and
Increased the Eyewitness’s Confidence
1. List Factors that Indicate the Interview Did Not Obtain the
Maximum Amount of Information from the Eyewitness
2. List Factors that Indicate the Interview Was Biased and
Contaminated the Eyewitness’s Memory of the Crime
3. List Factors that Indicate the Interview Increased the
Eyewitness’s Confidence
II. IDENTIFICATION PROCEDURES
(Conduct a separate analysis for each identification procedure.)
A. List Factors that Indicate the Identification Procedure Was Fair
and Impartial
B.
List Factors that Indicate the Identification Procedure Was
Biased
2009]
C. If the interviews and identification procedures were substantially
fair and unbiased or an exception applies (e.g., the eyewitness
knew the perpetrator prior to the crime or had prolonged,
repeated exposure to the perpetrator, or there is reliable, valid
corroborating evidence of the accuracy of the eyewitness
testimony), go on to Part III. If an interview or an identification
procedure was significantly unfair and biased, and no exception
applies, the eyewitness testimony or any subsequent
identification of the defendant by the eyewitness has no
probative value and should not be considered in the
determination of the defendant’s guilt.
III. EYEWITNESS FACTORS DURING THE CRIME THAT LIKELY
AFFECTED IDENTIFICATION ACCURACY
A. List Eyewitness Factors During the Crime that Likely Increased
Eyewitness Accuracy
B. List Eyewitness Factors During the Crime that Likely Decreased
Eyewitness Accuracy
IV. CONCLUSIONS
A. Was the maximum amount of information obtained from the
eyewitness during the interviews?
1. Yes
2. No
B. Was a statement of the eyewitness’s confidence in the accuracy
of the identification obtained prior to any feedback?
1. Yes
2. No
C. Is there a high, medium, or low probability that the eyewitness
testimony was accurate?
1. High
2. Medium
3. Low
D. Is there a high, medium, or low probability that the eyewitness
identification was accurate?
1. High
2. Medium
3. Low
513
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Article
Pretend “Gun-Free” School Zones:
A Deadly Legal Fiction
DAVID B. KOPEL
Most states issue permits to carry a concealed handgun for lawful
protection to an applicant who is over twenty-one years of age, and who
passes a fingerprint-based background check and a safety class. These
permits allow the person to carry a concealed defensive handgun almost
everywhere in the state. Should professors, school teachers, or adult
college and graduate students who have such permits be allowed to carry
firearms on campus?
In the last two years, many state legislatures have debated this topic.
School boards, regents, and administrators are likewise faced with
decisions about whether to change campus firearms policies. This Article
is the first to provide a thorough analysis of the empirical evidence and
policy arguments regarding licensed campus carry. Whether a reader
agrees or disagrees with the Article’s policy recommendations, the Article
can lay the foundation for a better-informed debate, and a more realistic
analysis of the issue.
515
ARTICLE CONTENTS
I. INTRODUCTION ................................................................................... 517
II. THE LEGAL AND FACTUAL SETTING ............................................ 518
A. WHAT DOES THE CONSTITUTION REQUIRE? ....................................... 521
B. THE PUSH FOR CARRY RIGHTS ON CAMPUSES .................................... 522
III. REAL-WORLD PROGRAMS .............................................................. 525
A.
B.
C.
D.
SCHOOLS IN THE UNITED STATES ....................................................... 527
ISRAEL ................................................................................................ 531
THAILAND ........................................................................................... 533
NORWAY ............................................................................................. 535
IV. EMPIRICAL EVIDENCE OF DEFENSE AND DETERRENCE ....... 536
A. DETERRENCE ...................................................................................... 536
B. NEED FOR SPEED IN RESPONDING TO ACTIVE SHOOTERS.................... 540
C. WHEN HAVE CITIZENS STOPPED MASS KILLERS AT SCHOOLS? .......... 544
V. OBJECTIONS TO CAMPUS DEFENSE .............................................. 546
A.
B.
C.
D.
CAMPUS CARRY IS UNNECESSARY ..................................................... 546
SELF-DEFENSE WILL FAIL .................................................................. 553
FACULTY AND ADULT STUDENTS ARE INCIPIENT KILLERS ................. 564
ACADEMIC FREEDOM.......................................................................... 581
VI. CONCLUSION ..................................................................................... 583
Pretend “Gun-Free” School Zones:
A Deadly Legal Fiction
DAVID B. KOPEL*
I. INTRODUCTION
This Article analyzes the law and policy regarding the licensed
carrying of firearms in K–12 schools and in colleges and universities. The
Article suggests that absolute bans have proven to be extremely dangerous
because they turn schools into uniquely attractive targets for mass
murderers. The Article focuses on prohibitions applied to people who have
already been licensed to carry a handgun for lawful protection in public
places. The Article does not address the bans as applied to persons who
have not obtained or could not obtain such a permit—such as those under
the age of twenty-one—in most states.
Part II of this Article surveys the legal, factual, and political
background. Part III describes current programs, in the United States and
elsewhere, in which teachers or students are allowed or required to carry
firearms for defense. Part IV examines empirical evidence about whether
armed defenders can deter or interrupt mass killers at schools, and whether
armed defenders have done so. Part V analyzes various objections to
campus defense, with particular attention to the argument that faculty
and/or adult students are so dangerous that they should not be allowed to
carry arms. Part V also addresses the issue of unarmed victims being told
never to fight back.
This Article does not argue in favor of one particular method for
authorizing already-licensed people to carry firearms on campus. On the
one hand there is Utah’s law, which allows firearms carrying and
possession by anyone with a concealed handgun carry permit—including
in dormitories for students aged twenty-one or over.1 On the other hand,
there was the Nevada Board of Regents proposal to allow carry only by
full-time staff who have undergone the same training as deputy sheriffs,
*
David Kopel is Adjunct Professor of Advanced Constitutional Law at Denver University Sturm
College of Law, Research Director of the Independence Institute in Golden, Colorado, and Associate
Policy Analyst with the Cato Institute in Washington, D.C. He has also served as an Assistant Attorney
General for the State of Colorado and an Adjunct Professor of Law at New York University School of
Law. He received his B.A. with highest honors from Brown University, and his J.D., magna cum
laude, from the University of Michigan Law School. He is the author or co-author of twelve books,
including the only law school textbook on firearms law and policy, Gun Control and Gun Rights,
published by NYU Press. The author would like to thank Nicholas Johnson, Don & Che Kates, Henry
Schaffer, and Eugene Volokh for helpful suggestions.
1
See infra note 76 and accompanying text.
518
[Vol. 42:515
2
and who have actually been deputized. There are many options in
between the Utah and Nevada models. This Article suggests that complete
prohibition of armed defense on school campuses by all faculty and by all
adult students is irrational and deadly.
II. THE LEGAL AND FACTUAL SETTING
During most of America’s history, there were no particular restrictions
on the possession of firearms on school property. It was not uncommon
for students to bring guns to school, stored in their lockers or automobiles,
to use for hunting or target shooting after school.3 When Antonin Scalia
was growing up in New York City in the 1950s, he would carry a rifle on
the subway on his way to school, for use as a member of his school’s rifle
team.4
However, in recent decades, many legislatures and school
administrators have banned the possession of firearms on school property.
All of the state laws apply to K–12 public schools, and almost all of them
also apply to K–12 private schools. Some of the laws also apply to public
institutions of higher education, and a few even apply to private higher
education. Almost all of the laws allow gun possession pursuant to
authorization from the governing body of the school or, depending on the
state, from a school principal or other administrator.
Accordingly, in almost all states, school officials could—and this
Article suggests should—allow some on-campus carrying of firearms by
properly trained and licensed persons. In addition, legislatures, regents,
and school boards have the authority to set broad policies for public
education institutions, and this Article advocates that those policies should
authorize on-campus carry by at least some people who are already
authorized under state law to carry in public.
In the public debate over campus carry, a frequently-mentioned but
mostly irrelevant law is the federal Gun-Free School Zone Act
(“GFSZA”). The law, enacted in 1990, sharply restricted guns at K–12
2
See infra text accompanying notes 67–69.
See, e.g., John Lane, Permit Guns in School to Stop Massacres, CHARLOTTE OBSERVER, Jan. 22,
2008, http://web.archive.org/web/20080127100554/http://www.charlotte.com/171/story/456971.html.
Lane observes:
I grew up in the 1940s and 1950s. . . . [F]or one “show and tell” I brought to school
a Walther PPK pistol . . . . Later, when we were older, it was not uncommon for
several of us to have shotguns in our vehicles while at school. Usually they were
there because we had been in the woods at sun-up hunting. We didn’t have time to
take them home before school, so we left them in our trunks. . . . In researching this
column, I attempted to find a “school shooting” from that era. I came up empty.
Id.
4
See Associated Press, Scalia Says Don’t Link Guns Only to Crime, SEATTLE TIMES, Feb. 27,
2006, http://community.seattletimes.nwsource.com/archive/?date=20060227&slug=scalia27 (reporting
Scalia’s speech to an annual meeting of the National Wild Turkey Federation).
3
2009]
PRETEND “GUN-FREE” SCHOOL ZONES
519
5
schools and within a one thousand-foot radius around the schools. In the
1995 case United States v. Lopez, the U.S. Supreme Court found the
GFSZA unconstitutional because it was based on Congress’s power to
regulate interstate commerce, but the regulated activity had no meaningful
connection to interstate commerce.6 In 1996, Congress re-enacted the law,
this time limiting its application to guns which at some point after their
manufacture had been moved in interstate commerce7—that is, virtually all
guns.
The federal law contains several exceptions. For example, the ban
within the one thousand-foot radius does not apply on private property.8
Even on the property of a private K–12 school, carrying is allowed under
federal law if the carrier has a state-issued handgun carry permit.9
Critics of the GFSZA point out that before the 1990 law, there had
been only seven shootings at American schools in the previous 214-year
history of the United States. In the seventeen years following the adoption
of the GFSZA, there were seventy-eight such incidents.10 However, it
seems unlikely that the GFSZA itself dramatically changed lawful firearms
possession at schools. By the time it was enacted, many states and school
districts had already imposed their own bans, so the federal ban was
superfluous.
Along with gun bans at schools, another type of gun law was enacted
in many states in the 1980s and 1990s: objective standards for the issuance
of permits to carry handguns for lawful protection (referred to as “Shall
Issue” laws).11 The first state to enact an objective licensing law was
Washington in 1961.12 The trend became national after Florida adopted a
similar law in 1988.13 Today, in forty states, an adult who passes a
fingerprint-based background check and, in most states, a safety class can
obtain a permit to carry a handgun for lawful protection. In those forty
states, a permit cannot be denied simply because the official in charge of
issuing the permits does not think that people should be allowed to carry
5
18 U.S.C. §§ 921(a)(25), 922(q) (2008) (defining “school zone” and restricting guns in school
zones).
6
United States v. Lopez, 514 U.S. 549, 551 (1994); see David B. Kopel & Glenn H. Reynolds,
Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 CONN. L. REV. 59, 68–
70 (1997) (analyzing the interstate Commerce Clause issues raised by Lopez).
7
18 U.S.C. § 922(q)(1)(B)–(C), (G), (I), (2)(A), (3)(A) (2008) (containing new language
restricting law’s application to a person with a “firearm that has moved in or that otherwise affects
interstate or foreign commerce”).
8
Id. § 922(q)(2)(B)(i).
9
Id. § 922(q)(2)(B)(ii).
10
Disarmed in “Gun-Free School Zone,” HARD CORPS REP., Sept./Oct. 2007, at 4.
11
See Clayton E. Cramer & David B. Kopel, “Shall Issue”: The New Wave of Concealed
Handgun Permit Laws, 62 TENN. L. REV. 679, 742 (1995); David B. Kopel, The Licensing of
Concealed Handguns for Lawful Protection: Support from Five State Supreme Courts, 68 ALB. L. REV.
305, 334–35 (2005).
12
See WASH. REV. CODE ANN. § 9.41.070(1)–(4) (West 2006).
13
See FLA. STAT. ANN. § 790.06(1)–(3) (West 2007).
520
[Vol. 42:515
14
guns for lawful self-defense.
In contrast to the forty “Shall Issue” states with objective standards for
license issuance, there are eight states where the issuing authorities have
unlimited discretion.15 In some of these eight states (e.g., California and
New York), permit issuance varies widely from county to county.16 In
other such states (e.g., New Jersey), it is essentially impossible for anyone
except a retired police officer to obtain a permit.17 In Illinois and
Wisconsin, there are no permits issued for gun carrying; carrying is lawful
without a permit when engaged in certain activities (e.g., hunting),18 in
certain places (e.g., in one’s domicile),19 or for persons of a certain legal
status (e.g., security guards and detectives).20
In each of the forty-eight states that issue permits to carry handguns for
protection, one may presume that the permit is valid throughout the state.
Most states list at least a few places, such as courthouses, where the
permits are not valid. In some states, K–12 schools are specifically
excluded from the right to carry, and some states also exclude colleges and
14
Thirty-five states follow the standard “Shall Issue” model. In Alaska and Vermont, a permit is
not necessary, but a person may still apply for a permit (since having a permit issued by one state
allows for carrying in other states which have reciprocal recognition of licenses issues by some other
states). Alabama, Connecticut, and Iowa have statutes which nominally give greater discretion to the
issuing authority; in practice, in these “Do Issue” states, almost all adults (Alabama, Connecticut) or
most adults (Iowa) who would qualify for a “Shall Issue” permit are issued the slightly discretionary
permits. See Posting of David Kopel to The Volokh Conspiracy, http://volokh.com/archives/archive_
2006_03_26-2006_04_01.shtml#1143873304 (Apr. 1, 2006, 12:35 EST).
15
These states are California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New
York, and Rhode Island. See N.J. STAT. ANN. § 2C: 58-4 (West 2005); Cramer & Kopel, supra note
11, at 684; Kopel, supra note 11, at 305. The situation in Rhode Island is somewhat more complicated,
with the state having two separate licensing statutes, one discretionary and one mandatory—but the
latter one has been effectively nullified by the Rhode Island Attorney General. Kopel, supra note 11, at
325–26.
16
See Cramer & Kopel, supra note 11, at 683–85 (discussing “haphazard” issuance standards in
California and New York); see also Blog O’Stuff, http://blogostuff.blogspot.com/2004/12/percentageof-adults-with-carry.html (Dec. 21, 2004, 09:29 EST) (providing state statistics related to adults with
licenses to carry).
17
See In re Preis, 573 A.2d 148 (N.J. 1990) (denying permits to former police officers who were
working for private detective agencies on behalf of a tugboat company during a violent labor conflict:
Someone had already fired a bullet through a tugboat window. Permits denied because “a need to
protect property alone” is not a “justifiable need” for carrying a handgun.); Siccardi v. State, 284 A.2d
533, 538 (N.J. 1971); Doe v. Township of Dover, 524 A.2d 469, 471 (N.J. Super. Ct. App. Div. 1987)
(denying a permit for a jeweler who had to carry diamonds in an area where other jewelers had been
robbed); EVAN P. NAPPEN, NAPPEN II: NEW JERSEY GUN, KNIFE & WEAPON LAW 84 (2000); John C.
Lenzen, Note, Liberalizing the Concealed Carry of Handguns by Qualified Civilians: The Case for
“Carry Reform,” 47 RUTGERS L. REV. 1503, 1516–17 (1995).
18
720 ILL. COMP. STAT. ANN. § 5/24-2(b) (West 2003).
19
Id. § 5/24-1(a)(4); see also WIS. STAT. ANN. § 941.23 (West 2005); Kopel, supra note 11, at
323–24 (discussing a Wisconsin Supreme Court ruling that concealed carry ban could not
constitutionally be applied in a person’s home or place of business because of state constitutional right
to keep and bear arms).
20
720 ILL. COMP. STAT. ANN. § 5/24-2(a) (West 2003).
2009]
521
21
universities.
In other states, there may not be a specific statutory
exclusion, but school boards or higher education administrators have
imposed their own bans. Thus, in forty-eight states, it has been agreed that
there is some category of adults who can be trusted to be responsible about
carrying a concealed handgun for lawful protection in almost all public
places.
This Article does not argue for or against these laws, but takes them as
a given. Rather, the Article focuses on a particular question: Once society
has concluded that it is not harmful and may be beneficial for some people
to be licensed to carry handguns for protection, does it make sense to carve
out educational institutions as special “no-carry” zones, or is such a policy
harmful? The argument is most relevant in the forty “Shall Issue” states,
where public policy has already determined that the vast majority of adults
should be authorized to carry almost everywhere in public—provided that
they pass a safety class and a fingerprint-based background check.
Because this Article focuses on educational institutions, it is important
to note that in the large majority of “Shall Issue” states the minimum age
for being able to apply for a permit is twenty-one. There are six “Shall
Issue” states in which the minimum age is eighteen.22
A. What Does the Constitution Require?
In 2008, the Supreme Court ruled that the District of Columbia’s
handgun ban violated the Second Amendment.23 Whether the Second
Amendment is incorporated into the Fourteenth Amendment, and therefore
binds state and local governments, remains to be resolved. Even without
incorporation, the issue of Second Amendment rights in schools is relevant
to schools in the District of Columbia and other federal property and
territories where the Bill of Rights directly applies.
The school issue was directly addressed in District of Columbia v.
Heller: “[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings . . . .”24 At oral argument,
21
E.g., CONN. GEN. STAT. § 53a-217b (2009) (providing for a general ban on guns at K–12
schools, with no exception for licensed carry); FLA. STAT. § 790.06(12) (2006) (stating that handgun
carry permits are not valid on college and university property).
22
See IND. CODE ANN. § 35-47-2-3(g)(2) (West 2004); ME. REV. STAT. ANN. tit. 25, §
2003(1)(A) (2007); MONT. CODE ANN. § 48-8-321(1) (2007); N.D. CENT. CODE § 62.1-02-01(1)(d)
(Supp. 2009); S.D. CODIFIED LAWS § 23-7-7.1(1) (Supp. 2009). New Hampshire’s statute does not list
a minimum age for licensed carry. N.H. REV. STAT. ANN. § 159:6 (2009). However, the state does
prohibit the sale of firearms to minors. Id. § 159:12. A number of states allow open carry at age
eighteen, without need for a permit, but they are irrelevant to this Article, which focuses on concealed
carry licensees.
23
District of Columbia v. Heller, 128 S. Ct. 2783, 2821–22 (2008).
24
Id. at 2816–17.
522
[Vol. 42:515
Justice Stevens asked if the Second Amendment would allow guns to be
banned in college dormitories; Alan Gura, the lawyer arguing against the
D.C. handgun ban, affirmed that a dormitory ban would possibly be
constitutional.25
It would not make sense to read the Supreme Court’s dicta as if it were
a statute. There might be some circumstances in which a gun ban for a
school would obviously be unconstitutional—such as a ban on guns at
specialized private institutions that teach defensive gun use or that teach
hunting skills. For the purposes of this Article, it will be assumed that (1)
the Second Amendment does not generally constrain policy makers’
choices regarding firearms at most schools, and (2) the forty-four state
constitutional rights to arms also impose no constraints on policy choices.26
B. The Push for Carry Rights on Campuses
The night after the massacre of thirty-five unarmed students and
teachers at Virginia Tech University in April 2007, an activist organization
called Students for Concealed Carry on Campus (“SCCC”) was formed.27
The group has grown very rapidly. As of September 2009, it had over
35,000 supporters on its Facebook page, plus more than 350 chapters at
colleges and universities.28 There are approximately 300 additional
campuses where the group has members but not an established chapter.29
SCCC has attracted significant media attention, including an interview on
ABC’s Good Morning America,30 and an article in Newsweek.31 The group
holds annual “empty holster” protests, in which students wear empty
holsters on campus in order to protest the campus gun bans. In November
2007, there were 110 such protests nationwide.32
25
See Transcript of Oral Argument at 76–77, Heller, 128 S. Ct. 2783 (No. 07-290). The author
was one of three attorneys joining Gura at the Supreme Court counsel table for the presentation of the
oral argument.
26
For the text of these state constitutional right to bear arms provisions, see David B. Kopel,
What State Constitutions Teach About the Second Amendment, 29 N. KY. L. REV. 827, 829–50 (2002).
27
Students for Concealed Carry on Campus Frequently Asked Questions, http://www.concealed
campus.org/faq.php (follow “How was the SCCC started” hyperlink) (last visited Sept. 8, 2009).
28
Id.
29
Kimberly Miller, Guns on Campus? FAU Students Push for Advocacy Group, PALM BEACH
POST, Aug. 15, 2008, at 1A.
30
Good Morning America: Right to Bear Arms? Do Guns Belong on Campus? (ABC Television
Broadcast, Feb. 16, 2008), available at http://abcnews.go.com/video/playerIndex?id=4300805.
31
Ben Whitford, Armed for Class, NEWSWEEK, Aug. 11, 2008, at 62.
32
See, e.g., Eric Ferreri, Holster-Packin’ Students Protest, NEWS & OBSERVER (Raleigh, N.C.),
Apr. 25, 2008 (describing a protest at UNC-Chapel Hill); Steve Fry, Students Armed with Words in
Guns-on-Campus Protest, TOPEKA CAPITAL-JOURNAL, Apr. 24, 2008, at 1A (describing a protest at
Washburn University and three other Kansas colleges); Adriana Garza, Holsters on Campus Put Gun
Topic on Forefront, CORPUS CHRISTI CALLER TIMES, Apr. 25, 2008, at 1 (describing the protest at
Texas A&M); Michelle Roberts, Members of Student Group Push for the Right to Carry Concealed
Weapons on College Campuses, ASSOCIATED PRESS FIN. WIRE, Nov. 21, 2007 (describing the
widespread nature of protests); College ‘Empty Holster Protest’ Hits Campuses, Draws Attention, GUN
WEEK, Nov. 15, 2007, at 4; Some UW Students Want to Carry Guns, SEATTLE POST-INTELLIGENCER,
2009]
523
SCCC has played an unusual role in the national gun control debate.
Usually, the public campaigns to change gun control laws are initiated by
professional “pro-gun” organizations (such as the National Rifle
Association or Gun Owners of America) or professional “anti-gun”
organizations (such as the Brady Campaign or the Violence Policy Center).
The campus carry issue is different in that it has been brought into the
public debate by a spontaneously self-organized, amateur group of citizen
activists. The professional pro/anti-gun lobbies have found themselves
playing catch-up.
In 2007, bills to authorize licensed carry at state institutions of higher
education or in public schools were introduced in Alabama,33 Michigan,34
Nevada,35 Ohio,36 South Carolina,37 and Washington.38 In 2008, bills were
introduced in Alabama,39 Arizona,40 Georgia,41 Idaho,42 Indiana,43
Kentucky,44 Louisiana,45 Ohio,46 Oklahoma,47 South Dakota,48 Tennessee,49
Apr. 24, 2008, http://seattletimes.nwsource.com/html/localnews/2004370761_apwacampusguns.
html?syndication=rss (describing a protest at the University of Washington).
33
Pauline Vu, Va. Tech Shooting Spurs Changes at Colleges, STATELINE.ORG, Sept. 6, 2007,
http://www.stateline.org/live/details/story?contentId=237774.
34
Id.
35
See infra text accompanying notes 67–69.
36
Vu, supra note 33.
37
Id.
38
See S.B. 6860, 2007 Leg., 60th Reg. Sess. (Wash. 2007) (prohibiting municipal bodies like
public colleges from adopting campus bans).
39
S.B. 18, 2008 S., Reg. Sess. (Ala. 2008) (applying to universities, for students in ROTC with no
misdemeanor or felony convictions); S.B. 27, 2008 S., Reg. Sess. (Ala. 2008) (applying to professors
only); S.B. 271, 2008 S., Reg. Sess. (Ala. 2008) (applying to professors only).
40
S.B. 1214, 48th Leg., 2d Reg. Sess. (Ariz. 2008); H.B. 2628, 48th Leg., 2d Reg. Sess. (Ariz.
2008) (repealing law against licensed carry on school grounds).
41
H.B. 915, 149th Gen. Assem., Reg. Sess. (Ga. 2008).
42
S.B. 1381, 59th Leg., 2d Reg. Sess. (Idaho 2008) (sponsored by Senator Curt McKenzie).
43
S.B. 12, 116th Gen. Assem., 1st Reg. Sess. (Ind. 2008).
44
H.B. 114, 2008 H.R., Reg Sess. (Ky. 2008) (applying to parking lots for university employees).
45
H.B. 199, 2008 H.R., Reg. Sess. (La. 2008) (allowing universities to establish policies for
authorizing licensed carry, while affirming that universities can regulate storage of guns on campus).
The bill passed the House Criminal Justice Committee 11-3. Editorial, Tote Books, Not Guns, TIMESPICAYUNE, May 3, 2008, at 6. It was pulled from the House floor after Rep. Ernest Wooton estimated
that he would have only forty-six of the necessary fifty-three votes to pass the bill through the 105
member chamber. Ed Anderson, Campus Weapons Proposal Pulled; Sponsor Says He’ll Keep Pushing
Plan, TIMES-PICAYUNE, June 10, 2008, at 2.
46
S.B. 318, 127th Gen. Assem., Reg. Sess. (Ohio 2008).
47
H.B. 2513, 51st Leg., 2d Sess. (Okla. 2008). The bill would allow people with a law
enforcement or military background over age twenty-one to carry on public college campuses. The bill
passed the House 65-36, but stalled in the Senate. Mick Hinton & Barbara Hoberock, Senate Holsters
Gun Bill, TULSA WORLD, Apr. 1, 2008, at A1.
48
H.B. 1261, 83rd Leg. Assem., Reg. Sess. (S.D. 2008). The bill to allow licensed carry on state
university campuses passed the House of Representatives by a 63-3 vote, but was defeated in the
Senate 14-17. Michele Linck, No Guns on South Dakota Campuses, for Now, SIOUX CITY J., Feb. 16,
2008, http://www.siouxcityjournal.com/articles/2008/02/16/news/local/660b198e85dff68a862573f100
16cba7.txt.
49
H.B. 3014, 105th Gen. Assem., 2d Sess. (Tenn. 2008) (allowing full-time faculty or staff at
schools and universities to carry pursuant to a permit).
524
50
[Vol. 42:515
51
Virginia, and Washington. In 2009, bills were introduced in Indiana,52
Louisiana,53 Michigan,54 Texas (with over seventy cosponsors),55 South
Carolina,56 South Dakota,57 and North Dakota.58 In many states, the bills
have been passed out of committee, and in some states they have passed in
one chamber, but defeated in the other. Conversely, some states have seen
the introduction of bills to ban guns on college campuses, or in student
apartments, and those bills have also been defeated.59
In 2009, the Arizona legislature enacted a law to forbid employers
from prohibiting employee guns in locked cars in parking areas.60
Accordingly, the regents of Arizona’s public colleges and universities
changed their campus regulations to permit such guns.61 To avoid conflict
with state law, Michigan State University’s governing board has authorized
persons with concealed carry licenses to carry guns while walking or
driving through campus, but not to bring the guns into buildings or
stadiums.62
Texas Governor Rick Perry has endorsed college students and public
50
H.B. 1371, 2008 H.R., 2008 Sess. (Va. 2008) (applying to faculty and adult students); H.B.
424, 2008 H.R., 2008 Sess. (Va. 2008) (applying to full-time faculty). Delegate Robert Marshall,
whose two sons attend George Mason University, said that he introduced the bill after a George Mason
police officer contacted him with concerns that the campus police could not fully defend the school.
Dorn Peterson, a physics professor at James Madison University, favored the bill. Pete DeLea, Should
Profs Pack Pistols?, DAILY-NEWS REC. (Harrisonburg, Va.), Jan. 17, 2008.
51
S.B. 6860, 2008 S., 2d Sess. of the 60th Reg. Sess. (Wash. 2008).
52
S.B. 12, 116th Gen. Assem., 1st Reg. Sess. (Ind. 2009).
53
H.B. 27, 2009 H.R., Reg. Sess. (La. 2009).
54
S.B. 747, 95th Leg., 1st Reg. Sess. (Mich. 2009).
55
H.B. 1893, 81st Leg. (Tex. 2009). For the list of sponsors and cosponsors, see Texas
Legislature Online, 81(R) Authors for H.B. 1893, http://www.legis.state.tx.us/billlookup/Authors.aspx?
LegSess=81R&Bill=HB1893 (last visited Oct. 3, 2009).
56
S.B. 347, 118th Gen. Assem., 1st Reg. Sess. (S.C. 2009).
57
S.B. 82, 84th Leg. Assem., 2009 Reg. Sess. (S.D. 2009).
58
H.B. 1348, 61st Leg. Assem. (N.D. 2009). The bill would allow gun possession in campus
apartments (but not dormitories) and their associated parking lots by persons who have been issued a
concealed carry permit, or who have passed a hunter safety class. It passed the North Dakota House of
Representatives by a 48-46 vote. Janell Cole, N.D. House Narrowly Passes Campus Gun Bill, GRAND
FORKS HERALD, Feb. 19, 2009, http://www.grandforksherald.com/event/contentEmail/id/107174/type/
article/. The bill was defeated in the Senate. See Journal of the Senate of North Dakota for 2009, at
1238.
59
See S.B. 6841, 2008 S., 2d Sess. of the 60th Reg. Sess. (Wash. 2008) (banning carry on college
campuses, including private ones); Jordan Blum, Bill Would Allow Guns on College Campus,
ADVOCATE (Baton Rouge, La.), Mar. 29, 2008, at A1 (explaining that Louisiana colleges ban guns in
dormitories as a matter of policy, and that violating the rule could get a student expelled, but that such
storage is not a crime; a bill to criminalize dormitory possession was defeated in 2007); Chet Brokaw,
House Panel OKs Bill Allowing Guns on Campuses, RAPID CITY J., Jan. 30, 2008,
http://www.rapidcityjournal.com/articles/2008/01/30/news/local/doc47a0dd2608aab504773184.txt
(stating that a bill to create a statutory ban on guns on South Dakota college campuses was
unanimously defeated in a state House committee); Vu, supra note 33 (“Louisiana lawmakers killed a
bill that would have banned guns in college dorms . . . .”).
60
ARIZ. REV. STAT. ANN. § 12-781 (2009).
61
Becky Pallack, Concealed Guns in Locked Cars Are OK at AZ Public Colleges Beginning
Today, ARIZ. DAILY STAR, Sept. 30, 2009, http://www.azstarnet.com/sn/education/311182.
62
See Robin Erb, Guns on Campus, DETROIT FREE PRESS, June 20, 2009, at 1A.
2009]
525
school teachers being able to carry on campus. At least in Texas, things
are moving his way. In August 2008, the school district in Harrold, Texas
authorized licensed carry by school teachers.63 District Superintendent
David Thweatt said, “When the federal government started making schools
gun-free zones, that’s when all of these shootings started. Why would you
put it out there that a group of people can’t defend themselves? That’s like
saying ‘sic ’em’ to a dog.”64 A year later, there had been no problems at
the school, although a methamphetamine lab had been discovered in a
house fifty feet away from school property, indicating that criminals with
guns may have been much closer to the school than anyone realized.65
Michigan is hardly as “pro-gun” a state as Texas. Its gun control laws
are much stricter, and it was among the last of the forty states to enact a
“Shall Issue” law. Yet even in Michigan, a survey of public middle and
high school principals found that one-third favored the idea of allowing
teachers to carry concealed firearms at school. That third was evenly split
between principals who simply favored the proposal and those who
favored the proposal along with restrictions.66
III. REAL-WORLD PROGRAMS
A standard tactic of opponents of campus carry is to unleash a litany of
frightened speculation. For example, in 2007, the Board of Regents for
Nevada’s public universities considered, but ultimately did not adopt, a
Regent’s proposal which had been brought forward by the four police
chiefs of the state’s eight campus university system.67 Under the campus
police chief’s proposal, university faculty or staff members could volunteer
to be trained and armed as members of a special reserve officers corps.68 A
volunteer would have to pass a physical and psychological examination
and a comprehensive background check. The volunteer would then pay to
take classes on firearms, defensive tactics, and juvenile justice at Nevada’s
Law Enforcement Training Academy. The volunteer would also pay for
63
See James C. McKinley, Jr., In Texas School, Some Teachers Carry Books, Chalk and Pistols,
N.Y. TIMES, Aug. 29, 2008, at A1 (“The school board decided that teachers with concealed guns were a
better form of security than armed peace officers, since an attacker would not know whom to shoot
first . . . . Teachers have received training from a private security consultant, and will use special
ammunition designed to prevent ricocheting . . . .”).
64
North Texas School District Will Let Teachers Carry Guns, HOUSTON CHRON., Aug. 15, 2008,
http://www.chron.com/disp/story.mpl/front/5945430.
65
Ann Work, Harrold Marks Year of Guns in Schools, TIMES REC. NEWS (Wichita Falls, Tex.),
Aug. 5, 2009, http://www.timesrecordnews.com/news/2009/aug/05/harrold-marks-year-of-guns-inschools.
66
Weapons in Schools Strike a Nerve, GRAND RAPIDS PRESS, Sept. 12, 2007, at A1.
67
Lenita Powers, Nevada, Other States Eye Guns on Campus, RENO GAZETTE-J., Mar. 7, 2008, at
A1; see also Vu, supra note 33 (“In Nevada, the Board of Regents approved a plan by the university
system’s four police chiefs to train and deputize faculty and staff volunteers to have more guns on
campus to combat a shooter.”).
68
Kevin Johnson, Universities Rethink Unarmed Police, USA TODAY, Sept. 20, 2007, at 1A.
526
[Vol. 42:515
his or her academy uniforms and equipment. Upon completion of the Law
Enforcement Training Academy curriculum, the professor or staffer would
receive $3000 annually in extra pay as an auxiliary law enforcement officer
and would be authorized to carry a handgun on state university property.69
In the Nevada legislature, a bill for a similar auxiliary police training
system to K–12 teachers was introduced but defeated.70
Now consider one teacher’s objection to the proposal:
On reading the “Teachers who get police training could
get extra pay, carry guns” article Wednesday, I was
astounded!
Having been a teacher for 40 years, I am a product of the
“old school,” which stressed that teachers are to be
impeccable models for their students. That Clark County
School District teachers would be encouraged to aspire to be
eligible candidates for serving as reserve campus police
officers by being paid an additional sum of $3,000 is an insult
to academia.
This idea would be turning our schools into war zones.
The concept is barbaric! It is illogical! It is sick! Youth
wishing to prove their manhood would find a way to
challenge those teachers with guns. Would students feel
respect or fear for the teachers with guns? Would the
students who are in gangs not feel even more threatened and
retaliate? Would not district schools be adding fuel to the
fire by bringing additional guns to the school campuses?
These are but a few of the arguments against the proposal
that certain district teachers carry guns into their
classrooms.71
The above response is by no means atypical of objections to campus
carry. That is to say, the objection amounts to a list of worst-case
scenarios, asserted as if they are near-certainties. One can find similar
conjectural objections in many newspaper editorials opposing licensed
carry on campus.
When policy makers must make decisions, especially decisions which
could have life or death consequences, pure speculation is unlikely to be
helpful. A better approach is to examine empirical evidence to see whether
69
Emily Richmond, Teachers Who Get Police Training Could Get Extra Pay, Carry Guns, LAS
VEGAS SUN, Aug. 8, 2007, http://www.lasvegassun.com/news/2007/aug/08/teachers-who-get-policetraining-could-get-extra-p/.
70
Id.
71
Mary Gafford, Letter to the Editor, Teachers + Guns = A Very Bad Idea, LAS VEGAS SUN,
Aug. 14, 2007, http://www.lasvegassun.com/news/2007/aug/14/letter-teachers-guns-a-very-bad-idea.
2009]
527
a particular policy has been tried elsewhere, and if so, what the results have
been. In fact, there are many real-world experiments where defensive
policies have already been tried. In these places, there is not a single
example of even one of the hypothetical objections ever coming true. This
Article now examines the policies which have been adopted at some
schools in the United States as well as in Israel, Thailand, and Norway.
A. Schools in the United States
In 2003, the Alliance for Justice (a leftist legal advocacy organization)
surveyed the 150 largest colleges and universities in the United States
regarding gun possession by students.72 Slightly over half (eighty-two) of
the institutions had comprehensive gun bans. Twenty-five schools allowed
student guns, but required that the guns be stored in particular places.
Twenty-seven allowed guns only for specific activities, such as a
competitive shooting team, ROTC, or another campus program. Twentytwo required prior authorization for bringing a gun on campus. Five
simply required that the gun be registered (but two of the five also required
designated storage).73
The Alliance for Justice survey did not ask about gun possession or
carrying by faculty or other staff. In the United States, one can find
schools as diverse as Dartmouth College and Boise State University where
gun carrying by faculty is permitted.74 At Virginia’s public colleges and
universities, the governing bodies have banned licensed carrying by staff
and students, but they do not have the legal authority to ban carry by
campus visitors.75 Thus, everyone with a Virginia state permit can carry at
the Virginia public universities except for staff and students.
1. Utah
In Utah, anyone with a concealed handgun permit may carry at any K–
12 public school, and at any of the nine campuses in the Utah state college
system, including in dormitories.76 Utah’s “Shall Issue” statute was
enacted in 1995. The concealed handgun permit is issued by the Criminal
72
Alliance for Justice, National Survey of College Campus Gun Possession Policies (2003),
available at http://web.archive.org/web/20060213203944/http://www.allianceforjustice.org/student/
student_resources/college_survey.html.
73
Id.
74
John R. Lott, Jr., Editorial, Columbine to Va. Tech to NIU: Gun-Free Zones or Killing Fields?,
INVESTOR’S BUS. DAILY, Feb. 25, 2008, http://www.ibdeditorials.com/IBDArticles.aspx?id=
288832885191506.
75
See Jeff Branscome, NRA: Let Students Carry, FREE-LANCE STAR (Fredericksburg, Va.), Apr.
25, 2008, available at http://fredericksburg.com/News/FLS/2008/042008/News/FLS/2008/042008/
04252008/374535 (noting the situation at the University of Mary Washington).
76
See UTAH CODE ANN. § 76-10-505.5(3) (2008) (creating an exception to firearms prohibition in
school zones for, among others, persons authorized to possess firearms by virtue of a concealed carry
permit).
528
[Vol. 42:515
Investigations and Technical Services Division of the Department of
Public Safety. The licensee must be at least twenty-one years old and must
pass a safety class and a fingerprint-based background check.77 For people
who do not have permits, guns are prohibited from school zones in Utah.78
School zones are broadly defined to include kindergartens through
universities, as well as any parks, stadiums, or the like being used by a
school, and a one thousand-foot radius therefrom.79
There are exceptions to the Utah school zone weapons ban, including
gun possession on private property (e.g., in a home or automobile within
one thousand feet of a school), or with approval from school
administrators. Most important, there is a complete exception for any
person who has a valid concealed carry permit.80 Thus, under Utah law,
since 1995, any person with a concealed carry permit has been able to
carry a handgun in Utah K–12 public schools. Lawful carriers include
teachers, as well as any other licensed adult, such as a parent visiting the
school to pick up a child.
Although the 1995 Utah statute specifically authorized licensed carry
in school zones, the University of Utah persisted in prohibiting licensed
carry on campus. In 2004, the Utah legislature enacted supplemental
legislation making it clear that the state university was required to follow
the same carry statutes applicable to all other public educational
institutions in Utah.81 The University of Utah sued, claiming that the
statute violated academic freedom.82 It was something of a stretch to assert
that “academic freedom” means that government schools can violate the
constitutional rights of students or faculty,83 and the Utah legislature had
made it clear that licensed carry is part of the Utah constitutional right to
arms.84
Did the law requiring the university to allow licensed gun carrying
amount to a violation of the university’s academic freedom to express its
viewpoint about guns? The argument was difficult to reconcile with the
77
Id. § 53-5-704.
Id. § 76-10-505.5.
79
Id. § 76-3-203.2.
80
Id. § 76-10-505.5.
81
Id. § 53-5A-102(2).
82
Univ. of Utah v. Shurtleff, 144 P.3d 1109, 1112 (Utah 2006). For an argument in favor of the
university policy, see Kathy L. Wyer, Comment, A Most Dangerous Experiment? University
Autonomy, Academic Freedom, and the Concealed-Weapons Controversy at the University of Utah,
2003 UTAH L. REV. 983, 985, 1007–08 (2003) (arguing that the state university has a right to
autonomy, even against an express legislative enactment, and that the university is not bound to comply
with the opinions of the state Attorney General).
83
Cf. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 247–48 (6th Cir. 2006)
(rejecting claim that academic freedom includes the power to violate the state constitution’s prohibition
on racial discrimination).
84
See UTAH CODE ANN. § 53-5a-102(2) (2008) (“The individual right to keep and bear arms
being a constitutionally protected right under Article I, Section 6 of the Utah Constitution, the
Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.”)
78
2009]
529
U.S. Supreme Court’s decision in Rumsfield v. Forum for Academic and
Institutional Rights.85 There, the Court held that when the government
compels the law school to allow on-campus interviews by military
recruiters, the government has compelled conduct, not speech, on the part
of the law school.86 Thus, even though military recruiters speak when on
campus, the mere act of allowing them to rent space in an on-campus
recruiting room was not compelled “speech” by the law school. A fortiori,
when the government requires colleges to allow people to carry concealed
firearms on campus, the college has not been forced to propound any
“speech” in violation of its academic freedom.
After losing in the Utah Supreme Court, the university filed suit in
federal district court. The lawsuit was withdrawn in 2007 after the
legislature passed a bill allowing students in university dormitories to
choose a roommate who does not have a firearm.87 Among the groups who
lobbied for campus carry in Utah were Second Amendment Students at the
University of Utah.88 However, thus far, hardly any students have
exercised the option to be guaranteed a disarmed roommate.89
Thus, faculty at Utah public universities may possess licensed
handguns in their offices or automobiles, and may carry those handguns on
campus.90 Students aged twenty-one years or older, the minimum age for a
concealed handgun permit, may do the same, and may keep their handguns
in their dorm rooms.91 The data from Utah campuses reveal no incidents
of the slightest misuse of a firearm by a person with a legal permit.92 Nor
is there any record of misuse of a firearm by a permit holder in a K–12
school anywhere in Utah. There have been no instances of attempted mass
murders at any school in Utah.
One might argue that Utah is an atypical state. Sixty percent of Utah’s
85
547 U.S. 47 (2006).
Id. at 61.
87
S.B. 251, 57th Leg., 2007 Gen. Sess. (Utah 2007) (amending UTAH CODE § 53B-3-103);
Sheena McFarland, U of U Guns-on-Campus Suit Dismissed, SALT LAKE TRIB., Mar. 14, 2007.
88
Brian Maffly, Pro-Gun Students Push for Right to Openly Carry Firearms on U. Campus, SALT
LAKE TRIB., Dec. 7, 2007; Sheena McFarland, Stats Show Few Guns Found on Utah College
Campuses, SALT LAKE TRIB., Aug. 27, 2007.
89
McFarland, supra note 87; Brian Maffly, U. Gun Policy: Student Whose Roommate Has Gun
Permit May Ask for a Reassignment, SALT LAKE TRIB., Dec. 10, 2007 (on file with author).
90
At Weber State University, anthropology Professor Ron Holt teaches the safety course in the
Continuing Education Program (not for credit) for members of the university community, as well as
other qualified adults, which is necessary for CCW applicants. John Hollenhorst, Weber State
University Offering Concealed Weapons Class, KSL-TV, Oct. 21, 2007, http://www.ksl.com/index.
php?nid=148&sid=2012831. A more advanced course, “Use of Force and Judgement Training,” is
taught at Lehigh Carbon Community College, in Pennsylvania. It too is a non-credit course.
Genevieve Marshall, Don’t Shoot . . . ! . . . Without Training. LCCC Offers Simulation, MORNING
CALL (Allentown, Pa.), Mar. 2, 2009, at B1.
91
There is one remaining subject of contention. The Utah carry licensing statute allows the
licensee to carry concealed or openly. The University of Utah, however, forbids licensed open carry.
Maffly, Pro-Gun Students, supra note 88.
92
McFarland, supra note 87.
86
530
[Vol. 42:515
93
population is Mormon, and members of the Church of Jesus Christ of
Latter Day Saints are not supposed to consume alcohol.94 Accordingly,
one might expect that the risk of alcohol-related gun misuse by students
would be lower in Utah than in other states. This is undoubtedly true, but
it should also be noted that a rather large percentage of Utah’s population
(and, presumably, its public college and university students), is not
Mormon, and there is no evidence of any gun misuse by the licensed nonMormon students either.
Moreover, there are many situations in which Mormons’ abstemious
practices in regards to alcohol are irrelevant. For example, one can see
from personal observation that in the United States, it is very rare for a
public school teacher (whatever his or her religion might be) to show up at
school under the influence of alcohol. Accordingly, one might expect that
Utah public school teachers are drunk at work about as often—that is,
almost never—as teachers everywhere else.
There are no known cases of any Utah public school teachers who
legally have guns in school ever threatening a student. Nor are there any
known cases of Utah high school students taking guns to school because
they are afraid of their teachers. Nor are there any reports of any student,
teacher, or professor at any educational institution anywhere in Utah
reporting that they felt less willing to speak up in a classroom because they
were afraid of licensed gun permitees. In sum, there has been a natural
experiment which has lasted fourteen years in the Utah public schools, and
for the same length of time in the Utah public colleges, except for one
recalcitrant school, which finally started complying with the law several
years ago. There have been zero instances of the slightest evidence of any
harm to academic freedom, let alone any case of misuse of a firearm by a
licensed permit holder.
Accordingly, when someone unleashes the parade of horribles that
would supposedly result from allowing licensed carry on campus, then a
legitimate follow-up question would be “Why are professors,
schoolteachers, or higher education students in this state more irresponsible
than their counterparts in Utah?” Perhaps someone could offer reasons to
believe that high school teachers in Oregon are more likely to commit gun
crimes than high school teachers in Utah; that college professors at the
University of Missouri are more likely to shoot students than are professors
at Weber State; or that the graduate students at the University of
Connecticut are more likely to get drunk and cause a gun accident than are
93
Utah’s Mormon Population Declines, ASSOCIATED PRESS, Nov. 20, 2008.
DOCTRINES & COVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS 89:5–7
(“That inasmuch as any man drinketh wine or strong drink among you, behold it is not good, neither
meet in the sight of your Father, only in assembling yourselves together to offer up your sacraments
before him. And, behold, this should be wine, yea, pure wine of the grape of the vine, of your own
make. And, again, strong drinks are not for the belly, but for the washing of your bodies.”)
94
2009]
531
their non-Mormon counterparts at the University of Utah. This Article
does not suggest that such arguments could not be persuasively offered—
just that over a decade of empirical experience in Utah suggests that if a
person cannot persuasively show that the relevant group in the other state
is less likely to be responsible than their Utah counterparts, then there is
little reason to fear adverse consequences from licensed campus carry in
that other state.
It is also important to remember that the comparison is not for entire
state populations (e.g., Florida vs. Utah). Rather the comparison is for
only a small percentage (under ten percent and usually under five
percent)95 of the Utah and other state population which has been granted a
permit to carry a handgun for lawful protection. As discussed in Part IV,
this is a population subgroup that in every state is far more law-abiding
than is the general population.
There is some empirical evidence that people at campuses outside Utah
are capable of matching the virtues of Utah citizens—at least for the simple
virtue of not committing gun crimes even when the person has a gun. At
Colorado State University (whose campus in Fort Collins, Colorado has
25,000 students), licensed carry by faculty, students, and visitors is
allowed. The only difference from Utah is that students may not keep guns
in dormitories. Licensed carry is also allowed for faculty, students, and
visitors at Blue Ridge Community College—which has three campuses and
an enrollment of about 4000 at the largest campus—in rural Virginia.
Colorado’s “Shall Issue” law was enacted in 2003, and Virginia’s in 1995.
Again, there are no reported instances of gun misuse by licensees at these
institutions.96
B. Israel
From kindergarten through graduate school, the schools of Utah have
been safe from any attempted attack by mass murderers. The same is true
of Colorado State and Blue Ridge. Of course it is impossible to know for
sure whether the licensed carry policies at these campuses have had a
deterrent effect. There is another place, however, where arming teachers
plainly has saved lives. The nation with the most experience in preventing
mass murders in schools is Israel.
Palestine Liberation Organization (“PLO”) attacks on Israeli schools
began during Passover 1974. The first attack was aimed at a school in
Galilee. When the PLO terrorists found that the school was closed because
of Passover weekend, they murdered several people in a nearby apartment
95
Cramer & Kopel, supra note 11.
Telephone interview with Colorado State University campus security head (Nov. 5, 2007);
Podcast: The Virginia Tech Tragedy: Shedding Light on Campus Carry (Mar. 16, 2009), available at
http://audio.ivoices.org/mp3/iipodcast271.mp3 (interview with Virginia Tech SCCC chapter leaders).
96
532
[Vol. 42:515
building. Then, on May 15, 1974, in Maalot:
Three PLO gunmen, after making their way through the
border fence, first shot up a van load full of workers returning
from a tobacco factory (incidentally these people happened to
be Galilee Arabs, not Jews), then they entered the school
compound of Maalot. First they murdered the housekeeper,
his wife and one of their kids, then they took a whole group
of nearly 100 kids and their teachers hostage. These were
staying overnight at the school, as they were on a hiking trip.
In the end, the deadline ran out, and the army’s special unit
assaulted the building. During the rescue attempt, the
gunmen blew their explosive charges and sprayed the kids
with machine-gun fire. 25 people died, 66 wounded.97
Israel at the time had some severe anti-gun laws, which were left over
from the days of British colonialism, when the British rulers tried to
prevent the Jews from owning guns. After vigorous debate, the
government began allowing army reservists to keep their weapons with
them. Handgun carry permits were given to any Israeli with a clean record
who lived in the most dangerous areas: Judea, Samaria, and Gaza. All over
Israel, guns became pervasive in the schools:
Teachers and kindergarten nurses now started to carry
guns, schools were protected by parents (and often grandpas)
guarding them in voluntary shifts. No school group went on
a hike or trip without armed guards. The Police involved the
citizens in a voluntary civil guard project “Mishmar Esrachi,”
which even had its own sniper teams. The Army’s Youth
Group program, “Gadna,” trained 15–16 year old kids in gun
safety and guard procedures and the older high school boys
got involved with the Mishmar Esrachi. During one noted
incident, the “Herzliyah Bus massacre” (March ’78, hijacking
of a bus, 37 dead, 76 wounded), these youngsters were
involved in the overall security measures in which the whole
area between North Tel Aviv and the resort town of
Herzlyiah was blocked off, manning roadblocks with the
police, guarding schools kindergartens etc.98
97
Proven Solutions To ENDING School Shootings: A Telephone Interview with Dr. David Th.
Schiller, Anti-Terror Expert, JEWS FOR THE PRESERVATION OF FIREARMS OWNERSHIP (1999),
available at http://www.jpfo.org/filegen-n-z/school.htm. Schiller was born in West Germany and
moved to Israel, where he served in the military as a weapons specialist. He later returned to Germany,
and was hired as a counterterrorism expert by the Berlin police office, as well as by police forces of
other German cities. For a while he worked in the terrorism research office of the RAND corporation,
and for several years he published a German gun magazine. Id.
98
Id.
2009]
533
After a while, “[w]hen the message got around to the PLO groups and a
couple infiltration attempts failed, the attacks against schools ceased.”99
Although the PLO gave up its school attacks, there was at least one
subsequent instance of a lone terrorist targeting a school. On May 31,
2002, a terrorist threw a grenade and began shooting at a kindergarten in
Shavei Shomron. Then, instead of closing in on the children, he abruptly
fled the kindergarten and began shooting around the nearby neighborhood.
Apparently he realized that the kindergarten was sure to have armed adults,
and that he could not stay at the school long enough to make sure he
actually murdered someone.100 Unfortunately for the terrorist, “David
Elbaz, owner of the local mini-market, gave chase and killed him with
gunshots. In addition to several grenades and the weapon the terrorist
carried on him, security sweeps revealed several explosive devices that he
had intended to detonate during the thwarted attack.”101
The Israeli policy shows a strong deterrent effect. But Israel’s policy
went vastly further than the current American campus carry proposals.
Israel essentially guaranteed that all schoolchildren would be protected at
all times by armed defenders. The American proposals would allow for
possibility of protection, but would not guarantee it. It is true that in “Shall
Issue” states, when there is a large enough crowd, it becomes statistically
very likely that at least one and probably several people in the crowd will
have concealed carry licenses, and that some of them may be carrying at
that moment. But this is not the same as ensuring that all schools are
protected all the time. It is well known that many terrorists have no
intention of surviving their terror attack. Yet the Israeli experience does
suggest that even people who are intent on dying can be deterred. After
all, their objective is to kill as many innocent victims as possible. If a
potential target is well-protected by civilian defenders, then the terrorists
seem to abandon that target.
Accordingly, the Israeli experience demonstrates that even attacks on
schools by suicidal people can be deterred, if the schools are protected by
armed citizen defenders. Because the Israeli defense system was so
comprehensive, one cannot say for sure whether a much more casual
defensive system in American schools would have such a strong deterrent
effect.
C. Thailand
Muslim extremists in Thailand’s southern provinces of Narathiwat,
Yala, and Pattani have been carrying out a terrorist campaign, seeking to
99
Id.
See Terrorist Attack Foiled in Shavei Shomron, ISRAEL NAT’L NEWS, May 31, 2002,
http://web.archive.org/web/20060924230716/www.israelnationalnews.com/news.php3?id=24440.
101
Id.
100
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[Vol. 42:515
create a Taliban-style Islamic state independent of Thailand, whose
population is predominantly Buddhist. Most teachers are Buddhists, and
they have been a key target of the terrorists.102
On April 27, 2004:
Interior Minister Bhokin Bhalakula ordered provincial
governors to give teachers licenses to buy guns if they want
to even though it would mean bringing firearms into the
classrooms when the region’s 925 schools reopen May 17
after two months of summer holiday. . . . Pairat Wihakarat,
the president of a teachers’ union in the three provinces, said
more than 1,700 teachers have already asked for transfers to
safer areas. Those who are willing to stay want to carry guns
to protect themselves, he said.103
Gun-control laws in Thailand are extremely strict and were tightened
even more because of three school shootings (perpetrated by students) that
took place in a single week in June 2003; two students were killed.104
While Thailand’s government is hostile to gun ownership in general, it
has recognized that teachers ought to be able to safeguard their students
and themselves.105 As of 2006, thousands of teachers in the three southern
provinces were carrying guns, according to Sanguan Jintarat, head of the
region’s Teachers’ Association. Because the permitting process takes
months, many teachers were carrying illegally, without a permit. The
government, for its part, was running defensive handgun combat training
classes for teachers, and selling them 9mm Steyr semi-automatic pistols for
one-fourth of the street price. Teachers’ determination to be armed
intensified after a July 2006 murder of a teacher. According to the
Associated Press, “Prasarn Martchu, a 46-year-old Buddhist, was standing
at his blackboard teaching a morning Thai-language class when a gunman
walked in disguised as a student, fired twice and escaped while the two
armed guards on duty were scared off by the gunfire, according to school
officials.”106
The government has also allowed villages in the south to form citizen
militias to patrol the area, and to protect their village from terrorist attacks.
The militias are supplied with rifles donated by the government. “I don’t
care what anyone says,” said Thailand’s Queen Sirikit, according to one of
102
Thailand Allows Teachers in Restive South to Carry Guns for Protection, ASSOCIATED PRESS,
Apr. 27, 2004.
103
Id.
104
David Kopel, Follow the Leader, NAT’L REV., Sept. 2, 2004, http://www.nationalreview.com/
kopel/kopel200409022215.asp.
105
Jocelyn Gecker, Teachers in Thailand Under Fire—And Learning to Shoot Back, ASSOCIATED
PRESS, Sept. 11, 2006.
106
Id.
2009]
535
her advisors. “We must help the people there to survive. If they need to be
trained, train them. If they need weapons, give them weapons.” 107 “Give
them weapons” is exactly what the government has been doing. In March
2009, the Bangkok Post reported that “[t]he Royal Aide-de-Camp
Department plans to buy 4700 pistols and rifles for use by teachers,
security officers and village defence volunteers working in the troubled
South.”108
Culturally, it is not surprising to hear that there are many people in
Israel, Utah, Colorado, or Virginia who are comfortable with a culture of
defensive handgun carrying. However, few people think of Buddhist
school teachers in Thailand as ranking high among the world’s “pro-gun”
constituencies. The fact that permits in Thailand are sought by Buddhist
teachers indicates that the strong desire to protect oneself and one’s
students is something of a universal trait.
The Thailand example shows that armed teachers are not necessarily,
by themselves, sufficient to fully protect schools. As of September 2008,
the terrorists had destroyed three hundred schools with arson and bomb
attacks.109 By early 2009, the terrorist violence had declined significantly,
as the terrorists had alienated most of the local Muslim population, and
been ground down as the military and police captured terrorist leaders. But
the armed teachers policy did not lead to an instant end to the murder of
teachers.110 Nor did the armed protection program in Israel lead to the
instant cessation of attacks on schools.111
Both Israel and Thailand faced large, well-organized, and
internationally funded terrorist organizations. Fortunately in the United
States, schools have not (at least not yet) come under attack from such
groups. If they did, the Israel and Thailand experience suggests that an
armed teachers program might be an important component of increasing
school safety, but that such a program should not be expected to result in
an instant halt in attacks by terrorist organizations.
D. Norway
In upper Norway’s Svalbard archipelago, a ban on polar bear hunting
has led to a surge in the polar bear population—and some people have
107
Thomas Fuller, Southern Thai Towns Increasingly Rely on Militias, N.Y. TIMES, Mar. 19,
2007, available at http://www.nytimes.com/2007/03/19/world/asia/19iht-thai.4958722.html.
108
Defence Plans to Arm Teachers, BANGKOK POST, Mar. 27, 2009, http://www.bangkokpost.
com/news/local/14053/defence-plans-to-arm-teachers.
109
Slow Motion Violence, STRATEGY PAGE, Sept. 19, 2008, http://www.strategypage.com/
qnd/thai/articles/20080919.aspx.
110
See Eye on the Problem, STRATEGY PAGE, Mar. 9, 2009, http://www.strategypage.com/
qnd/thai/articles/20090314.aspx (noting that terrorists are suspected in murder of two college students);
Power to the People, STRATEGY PAGE, Feb. 28, 2009, http://www.strategypage.com/qnd/thai/articles/
20090228.aspx.
111
See supra text accompanying note 97.
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[Vol. 42:515
been killed by polar bear attacks. Accordingly, students are required to
carry shotguns when traveling to and from school, and to take shooting
classes at school.112 The University Centre in Svalbard is the northernmost
institution of higher education in the world. There, students are mandated
to practice rifle shooting.113
IV. EMPIRICAL EVIDENCE OF DEFENSE AND DETERRENCE
Part III of this Article described situations in the United States and
around the world where professors, teachers, and students participate in
programs to carry guns for lawful protection; the research found no
evidence that the gun-carriers have harmed or threatened anyone (other
than terrorists or man-eating bears). But the argument of Students for
Concealed Carry on Campus is not simply that “We won’t hurt you.”
Rather, the argument is that “We will make you safer.” That is, a college
professor, public school teacher, or adult college/graduate student who has
a lawful concealed handgun, and who happens to be present when an
attack begins, would make the situation better rather than worse, from the
viewpoint of innocent victims.
This section presents evidence indicating that campus carry would
likely improve campus safety.114 First, American data show that ordinary
violent criminals—the type who might perpetrate an attack in a campus
parking lot—are significantly deterred by the risk of confronting an armed
victim. Second, police studies show that mass killers who attack schools
kill so rapidly that waiting for the police to arrive is guaranteed to lead to
mass death; further, mass killers who attack schools tend to kill themselves
as soon as they face armed resistance (because they are cowardly, and
because they are intent on suicide anyway). Third, there are three cases in
which an armed teacher, student, or nearby adult have stopped mass killers
on an American campus.
A. Deterrence
We know that, in general, criminals are deterred by armed citizens.
Intending to build the case for comprehensive federal gun restrictions, the
Carter administration awarded a major National Institute of Justice (“NIJ”)
research grant in 1978 to University of Massachusetts sociology professor
112
Nina Berglund, Armed for First Day of School, AFTENPOSTEN (Norway), Aug. 20, 2007,
http://www.aftenposten.no/english/local/article1948234.ece.
113
Agence France Press, Svalbard, Where Man and Polar Bears Share the Art of Living, SPACE
DAILY, Mar. 16, 2008, http://www.spacedaily.com/reports/Svalbard_where_man_and_polar_bears_
share_the_art_of_living_999.html; The University Centre in Svalbard, http://www.unis.no (last visited
Oct. 2, 2009) (noting that the campus is “the world’s northernmost higher education institution”).
114
Arguments that campus carry would cause other problems are addressed infra Part V.
2009]
537
115
James Wright and his colleagues Peter Rossi and Kathleen Daly. Wright
had already editorialized in favor of much stricter controls.116 Rossi would
later become president of the American Sociological Association.117 Daly
would later win the Hindelang Award, the highest prize bestowed by the
American Society of Criminology, for her feminist perspectives on
criminology.118 When the NIJ authors rigorously examined the data, they
found no persuasive evidence in favor of banning handguns for selfdefense.119
Wright and Rossi produced another study for the NIJ. Interviewing
felony prisoners in eleven prisons in ten states, Wright and Rossi
discovered that:
34% of the felons reported personally having been
“scared off, shot at, wounded or captured by an armed
victim.”
8% said the experience had occurred “many times.”
69% reported that the experience had happened to
another criminal whom they knew personally.
40% had personally decided not to commit a crime
because they thought the victim might have a gun.
56% said that a criminal would not attack a potential
victim who was known to be armed.
74% agreed with the statement that “One reason burglars
avoid houses where people are at home is that they fear being
shot.”120
Notably, “the highest concern about confronting an armed victim was
registered by felons from states with the greatest relative number of
privately owned firearms.”121 Furthermore:
The authors concluded “the major effects of partial or total
handgun bans would fall more on the shoulders of the
ordinary gun-owning public than on the felonious gun abuser
of the sort studied here . . . . [I]t is therefore also possible that
115
See JAMES D. WRIGHT, PETER H. ROSSI & KATHLEEN DALY, UNDER THE GUN: WEAPONS,
CRIME, AND VIOLENCE IN AMERICA xi (1983).
116
Id. at xiv–xv.
117
See American Sociological Association, Peter H. Rossi, http://www.asanet.org/cs/root/leftnav/
governance/past_officers/presidents/peter_h_rossi (last visited Oct. 2, 2009).
118
See American Society of Criminology, Michael J. Hindelang Award, http://www.asc41.com/
mjaward.html (last visited Oct. 2, 2009).
119
See WRIGHT, ROSSI & DALY, supra note 115, at 149, 321.
120
See JAMES D. WRIGHT & PETER H. ROSSI, ARMED AND CONSIDERED DANGEROUS: A SURVEY
OF FELONS AND THEIR FIREARMS 146 tbl.7.1, 155 tbl.7.5 (expanded ed. 1994).
121
Id. at 151.
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[Vol. 42:515
one side consequence of such measures would be some loss
of the crime-thwarting effects of civilian firearms
ownership.122
The survey of criminals provides strong evidence that allowing people
on campuses to have licensed handguns for protection would deter some
crimes. Whether “Shall Issue” laws in general lead to statistically
significant reductions in crime is a topic that has been the subject of
extensive debate among econometricians.123 Notably, research indicates
that “Shall Issue” laws led to an eighty-nine percent drop in multiplevictim (two or more fatality) public shootings.124 However, this finding
depends on a narrow definition of such shootings—a definition which
excludes shootings that are part of another crime (e.g., a robbery in which
the victims are killed) or which are gang-related (e.g., a drive-by
shooting).125
Although there is debate on whether there is a statistically significant
crime reduction as a result of “Shall Issue” laws, there is unanimity that
there is no statistically significant increase in crime caused by the acts of
the licensees.126 There is also extensive evidence of particular cases in
which licensees have used their permitted handguns to save their own
lives, or the lives of other people, or to thwart other serious violent
crimes.127
Even if these life-saving acts are not statistically significant, they are
immensely significant for the victims and their families. Saving even one
122
Id. at 238.
See, e.g., JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUNCONTROL LAWS 19−20 (1998) (noting statistically significant reductions in all homicide, assault, rape,
and robbery); NAT’L RESEARCH COUNCIL, FIREARMS AND VIOLENCE: A CRITICAL REVIEW 2 (2005)
(stating that the current level of research does not allow strong conclusions about whether “Shall Issue”
laws have positive effects); Ian Ayres & John J. Donohue III, Shooting Down the “More Guns, Less
Crime” Hypothesis, 55 STAN L. REV. 1193, 1201–02 (2003) (noting no statistically significant effects);
Carlisle E. Moody & Thomas B. Marvell, The Debate on Shall-Issue Laws, 5 ECON J. WATCH 269, 288
(2008) (reviewing other articles that had critiqued or supported Lott’s research; noting that adding
additional years and variables to the Ayers-Donohue analysis indicates that the only statistically
significant long-term effect is a reduction in assault).
124
John R. Lott, Jr. & William M. Landes, Multiple Victim Public Shootings, Bombings, and
Right-to-Carry Concealed Handgun Laws: Contrasting Private and Public Law Enforcement 9, 32
(Univ. of Chi. Law Sch. John M. Olin Law & Econ. Working Paper No. 73, 1999). A revised version
of this paper is incorporated in JOHN R. LOTT, THE BIAS AGAINST GUNS: WHY ALMOST EVERYTHING
YOU’VE HEARD ABOUT GUN CONTROL IS WRONG 108−14 (2003).
125
LOTT, BIAS AGAINST GUNS, supra note 124, at 104.
126
For the argument that licensees are dangerous, see infra Part V.C.1.
127
See ROBERT A. WATERS, THE BEST DEFENSE: TRUE STORIES OF INTENDED VICTIMS WHO
DEFENDED THEMSELVES WITH A FIREARM 109−11, 211 (1998) (reviewing stories of victims using selfdefense); Buckeye Firearms Association, Ohio CHL-Holders Acting in Self-Defense,
http://www.buckeyefirearms.org/printable/node/4546 (last visited Nov. 16, 2009) (providing
summaries of self-defense cases reported in the newspapers in which the paper identified the defender
as having an Ohio Concealed Handgun License). For another compilation of self-defense cases
involving concealed carry permitees, see Clayton Cramer’s “Civilian Gun Self-Defense Blog,”
discussed infra at notes 204–05.
123
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539
life, or thwarting even one other violent crime, is a very good thing.
Accordingly, allowing licensed carry on campuses makes sense for the
purpose of general reduction in violent crime. Of course if the harms of
this crime reduction outweighed the gains, then we would have a different
answer, but as detailed in Parts II and V, there is no evidence that selfdefense laws are harmful, including in the campus context.
But what about deterring mass killers? It is sometimes claimed that
such people are undeterrable because they are mentally ill. Whatever else
may be said about the mental states of such killers, most of them have
demonstrated their ability to be quite rational and calculating in planning
the details of their attack. For example, the murderer at Virginia Tech
planned the killing over many months, and among the tools he brought for
his murder spree was a heavy chain lock for doors, which significantly
increased the time it took for the police to get into the part of the building
where the killer was active.128 Likewise, the Columbine murderers planned
their crime for at least a year, and successfully executed a plan to use
explosives and fire alarms to create confusion among the victims; they also
started their attack when the school resource officer was off-campus
having lunch—an indication that they preferred not to confront armed
resistance.129
It is also important to remember that although some mass killers, such
as the ones at Columbine, attack a school because of personal animosity
toward students or teachers, other mass killers are adults who have no
connection to the school. These would include the thirty-year-old who
attacked a second-grade classroom in Winnetka, Illinois in 1988,130 or the
128
See VA. TECH REVIEW PANEL, MASS SHOOTINGS AT VIRGINIA TECH 26 (2007), available at
http://www.governor.virginia.gov/TempContent/techPanelReport-docs/FullReport.pdf.
129
See David B. Kopel, What If We Had Taken Columbine Seriously?, WEEKLY STANDARD, Apr.
24, 2000, at 20. The murders began outside an entrance to the school. Early in the attack, outside the
school building, the School Resource Officer returned from lunch, and engaged in a long-distance
exchange of gunfire with the killers. The killers retreated into the building, and then began killing
people inside. Instead of pursuing the killers, the officer stayed outside, and took no further action
against the killers. Inside the building, in the school library, students were told by a 911 operator to
stay where there were and not to leave (even though the library had its own exit directly to the outside).
As a result, most of the people at Columbine who died were those who were methodically executed in
the library. Because of the open 911 line, the police officers who had arrived at the scene knew what
was going on the library, but they stood idle several feet away, outside the building. The police were
acting under the standard doctrine of the time, which placed officer safety above all other values. The
doctrine stated that only a S.W.A.T. team should enter the building, and that even the S.W.A.T. should
not search for the killers immediately, but should methodically establish a perimeter, and then slowly
tighten that perimeter room by room. Id.
130
JOEL KAPLAN, GEORGE PAPAJOHN & ERIC ZORN, MURDER OF INNOCENCE: THE TRAGIC LIFE
AND FINAL RAMPAGE OF LAURIE DANN 228−35 (1990). This Article purposely avoids mentioning the
names of the killers, except when necessary to do so in a citation. Mass killers are frequently
motivated by the desire for posthumous publicity, and the mass media’s providing of such publicity
often has a direct effect leading to more mass murders. See LOREN COLEMAN, THE COPYCAT EFFECT:
HOW THE MEDIA AND POPULAR CULTURE TRIGGER THE MAYHEM IN TOMORROW’S HEADLINES 1−5
(2004) (noting the epidemics of similar behaviors after suicides and school shootings); Clayton E.
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pederast who murdered sixteen kindergarteners and a teacher in Dunblane,
Scotland.131
One reason why some adult sociopaths choose to attack schools—
schools to which they have no particular connection—is that schools are
easy targets. It is not surprising that police stations, hunting-club meetings,
NRA offices, and similar locations known to contain armed adults are
rarely attacked.
B. Need for Speed in Responding to Active Shooters
Whenever there is a public debate on campus defense against mass
murderers, there is almost certain to arise a vast amount of commentary
from people who have no expertise with defensive tactics, yet who
announce with certitude that campus police or security guards, or police
arriving at the campus, will always provide sufficient protection. The view
of actual experts is somewhat different.
The Police Marksman is a professional periodical for police officers
that focuses almost entirely on police tactics involving firearms. It
presents close analysis of incidents in which officers were attacked by
armed assailants, and the tactics that did or did not work in response. The
Police Marksman also covers topics such as police sniper work in hostage
situations, and other issues involving police use of firearms to protect the
public.
A 2007 issue of the magazine was devoted to the problem of the
“active shooter.” Before Columbine, the standard police tactic for dealing
with an armed criminal inside a building was to establish a perimeter, and
then gradually constrict the perimeter, safely clearing one room at a
time.132 That was the tactic used at Columbine, with the result that eleven
of the thirteen people who were murdered (including teacher Dave
Sanders, who bled to death over the course of several hours) were killed
while the police were methodically setting up the perimeter outside.133
Cramer, Ethical Problems of Mass Murder Coverage in the Mass Media, 9 J. MASS MEDIA ETHICS 26,
29 (1994) (providing a case study indicating that coverage by media sources encourages copy cat
behavior).
On the Jewish holiday of Purim, the Book of Esther is read. The story is about a thwarted plot to
kill all the Jews living in the Babylonian empire. Whenever the would-be genocidaire’s name is read,
the audience drowns it out with noisemakers and shouts. This is a better policy than putting a mass
killer’s publicity video of himself on national television news and publishing a still photo from that
video on the front page of most newspapers—as the American media irresponsibly did after the
Virginia Tech murders. See Dave Kopel, Airing, Publishing Killer’s Photos, Rants Reckless; Publicity
a Fresh Inducement to Mass Murderers, ROCKY MOUNTAIN NEWS, Apr. 21, 2007, at 30.
131
SANDRA UTTLEY, DUNBLANE UNBURIED 14 (2006) (explaining how sixteen children and their
teacher were murdered, and another twelve children and three teachers injured, during a school
shooting).
132
See Kopel, supra note 129.
133
Id. In 1993, a mass killer attacked a law firm at 101 California Street in San Francisco. The
killer committed suicide when he heard the police coming. The police found his body in a stairwell,
2009]
541
Many more people might have been killed if the Columbine perpetrators
had not committed suicide.
Post-Columbine, police tactics began to change in regards to the
“active shooter”—the term used by defense experts for Columbine-type
attackers. Establishing and constricting the perimeter might be fine in a
case where a bank robber is holding hostages inside a building. It is not
the right response to the active shooter who is killing one person after
another.
In the article Rapid Deployment: Version 2.0, police trainer Dick
Fairburn details the problem of effective police response to the active
shooter. While the active shooter phase of Columbine lasted thirteen
minutes,
[m]any of the active shooter incidents we examined were
over in three to four minutes, much quicker than four officers
could be assembled as a rapid deployment team and hope to
find and neutralize the shooter. This suggests that the only
hope for stopping the shooter and saving lives in most active
shooter events, will come from someone who is at the scene
when the shooting starts.134
Simply put, by the time the S.W.A.T. team arrives, it will be too late.
This means that neutralizing the active shooter will be up to a single
School Response Officer (“SRO”) already stationed at the high school, or
the college campus police, or perhaps a nearby patrol officer who quickly
arrives at the scene. Fairburn’s article states that sometimes, armed
citizens may be the right, and only, response:
Lacking an SRO or first arriving officer, the only hope
for saving lives may fall to citizens who are on-scene when
the attack begins. . . . [A]ctive shooters have been stopped by
untrained citizens. In states where concealed carry is legal,
the odds of a citizen being equipped to deal with an active
shooter are enhanced. The Virginia Tech officials have been
criticized for banning concealed weapons permits on their
campus. Many universities still refuse to arm their campus
police officers. The [Columbine killers’] generation that
wreaked havoc in high schools are now at universities—this
but did not realize he was the perpetrator. Accordingly, they sealed off the area and refused to allow
emergency medical personnel to enter. As a result, victim Deborah Fogel bled to death over the course
of an hour. Leslie Goldberg, Did Victim Have to Die? Family Sues for Answer: SFPD Must Defend
Actions in Tragedy at 101 California, S.F. EXAMINER, Mar. 26, 1995, http://www.sfgate.com/cgibin/article.cgi?f=/e/a/1995/03/26/NEWS5499.dtl&hw=arrived&sn=215&sc=130.
134
Richard Fairburn, Rapid Deployment: Version 2.0, POLICE MARKSMAN, Sept./Oct. 2007, at 21,
available at http://www.policeone.com/pc_print.asp?vid=1675030.
542
is a dangerous time.
[Vol. 42:515
135
Another article in the same issue observes that “[t]he sooner
someone—anyone—effectively intervenes through an act of courage, the
fewer funerals will result. In past incidents, active shooters have been
thwarted by police officers, security guards and school teachers.”136
A police study describes some consistent patterns of active shooters.
The report, released by the Force Science Research Center at Minnesota
State University-Mankato, observes that the average post-Columbine
“rapid mass murder episode” lasts about eight minutes.137 The short time
period makes it close to impossible for police to use the preferred tactic of
deploying a four-man team, and makes it unlikely that even a two-officer
team will be available in time.138 But “[u]nlike conventional criminal
predators, who often have no reluctance about attacking police,” active
shooters are “cowardly.” Report author Ron Borsch explains:
They choose unarmed, defenseless innocents for a reason:
They have no wish to encounter someone who can hurt them.
They are personally risk- and pain-avoidant. The tracking
history of these murderers has proved them to be unlikely to
be aggressive with police. If pressed, they are more likely to
kill themselves.139
Accordingly, the tactics that make sense in most situations, such as a
gun battle with an armed robber or kidnapper trying to escape, are not
appropriate for an active shooter. Instead, even a lone officer should
“close in and finish the fight with aggression . . . . The idea is to keep the
adversary off-balance by always forcing him to react to your actions, rather
than, after contact, reacting to him.”140
The challenge of a single officer finding the killer in a large building
may be complex. But once the killer is located, Borsch explains, officers
should understand that “this bad guy is one of the easiest man-with-gun
encounters they will ever have.”141 Indeed, “[m]ost officers have already
faced worse opponents from a personal safety standpoint . . . .”142 Or as
another article, analyzing the 2007 murders at an Amish schoolhouse in
135
Id. at 21. This Article alters the quote to avoid printing the killers’ names. See supra note 130.
Dan Marcou, 5 Phases of the Active Shooter Incident, POLICE MARKSMAN, Sept./Oct. 2007, at
31, available at http://www.policeone.com/pc_print.asp?vid=1672491.
137
Ohio Trainer Makes the Case for Single-Officer Entry Against Active Killers,
POLICEONE.COM, May 14, 2008, http://www.policeone.com/pc_print.asp?vid=1695125 (reprinting a
report from Force Science News). In 2008, Police Marksman ceased print publication, and its
subscribers were transferred to the PoliceOne website, which deals with police tactics and training.
138
Id.
139
Id.
140
Id.
141
Id.
142
Id.
136
2009]
543
Pennsylvania, suggests, “[a] running gun-battle at the early stages of an
armed invasion is preferable to allowing a murderous predator unrestricted
control of the environment.”143
In short, by far the best response to an active shooter is for someone to
start shooting back. If there is a policeman nearby who can start shooting
back, wonderful. But if the killer has selected the targeted victims in a way
so there is no police officer immediately at the scene, lives will be saved if
one or more victims starts shooting back.
But what if someone misses a shot? Well, if we only think about that
risk, then the proper response to an active shooter would be to make sure
that no police officers ever go to the scene. After all, police officers only
hit their targets eight percent of the time,144 or a third of the time,145 or less
than twenty percent of the time.146 So the police officer who is shooting at
the killer might miss and hit an innocent bystander.
Of course, the idea of not calling the police is self-evidently absurd.
The tangible risk that the policeman’s shot might hit an innocent is far
outweighed by the enormous danger of allowing the killer to act at will.
Moreover, the missed shot rate is not really the point; the miss rate may be
high, but the number of misses which hit an innocent bystander, let alone
kill him, is much smaller.
The data about police accuracy should also be considered in light of
the fact that police who engage a target are trained to do so while staying
fairly distant—twenty to thirty feet away. For personal self-defense
situations, a defensive shot from a civilian is usually fired at a distance of
shorter than seven feet—a distance from which it is much easier to hit a
stationary target.
If the victims fire back several shots from a longer distance, it is likely
that some would miss the killer, but extremely unlikely that any would kill
an innocent person. Even if the latter risk were much greater, that risk is
small compared to the risk of allowing the killer to take aimed shots again
and again and again. Moreover, if one or more potential victims are firing
at an attacker, even if the victims miss, being shot at is, to say the least,
very distracting. An attacker who is under fire will have much less
freedom to aim his own shots carefully and kill his intended victims. And
143
Rick Armellino, Revisiting the Amish Schoolhouse Massacre, POLICEONE.COM, Aug. 22,
2007, http://www.policeone.com/columnists_internal.asp?view=1271208&vid=1290372 (discussing
police tactics).
144
Tom Teepen, Gun Lobby’s Call to Arms Is Way Off Target, COX NEWS SERVICE, Feb. 18,
2008.
145
Good Morning America, supra note 30.
146
BRADY CENTER TO PREVENT GUN VIOLENCE, NO GUN LEFT BEHIND: THE GUN LOBBY’S
CAMPAIGN TO PUSH GUNS INTO COLLEGES AND SCHOOLS 10 (2007), available at
http://www.bradycampaign.org/xshare/pdf/reports/no-gun-left-behind.pdf (citing Gregory B. Morrison,
Deadly Force Programs Among Larger U.S. Police Departments, 9 POLICE Q. 331, 332 (2006)
(reporting hit rates of about one in five shots)).
544
[Vol. 42:515
as the Force Science Institute study explains, active shooters tend to
crumble at the first sign of active resistance.147
C. When Have Citizens Stopped Mass Killers at Schools?
The first incident was in 1997. A sixteen-year-old Satanist slit his
mother’s throat, and then took a deer-hunting rifle to Pearl High School, in
Pearl, Mississippi. He murdered his ex-girlfriend and her friend and
wounded seven other students at his high school. Joel Myrick was the
Assistant Principal of Pearl High School:
The moment Myrick heard shots, he ran to his truck. He
unlocked the door, removed his gun from its case, removed a
round of bullets from another case, loaded the gun and went
looking for the killer. “I’ve always kept a gun in the truck
just in case something like this ever happened,” said Myrick,
who has since become Principal of Corinth High School,
Corinth, Miss.
[The killer] knew cops would arrive before too long, so
he was all business, no play. No talk of Jesus, just shooting
and reloading, shooting and reloading. He shot until he heard
sirens, and then ran to his car. His plan, authorities
subsequently learned, was to drive to nearby Pearl Junior
High School and shoot more kids before police could show
up.
But Myrick foiled that plan. He saw the killer fleeing the
campus and positioned himself to point a gun at the
windshield. [The killer], seeing the gun pointed at his head,
crashed the car. Myrick approached the killer and confronted
him. “Here was this monster killing kids in my school, and
the minute I put a gun to his head he was a kid again,”
Myrick said . . . .
In Pearl, federal, state and local laws helped [the killer]
shoot nine students. The deer rifle had to be reloaded after
every shot. To hit nine students, [the killer] needed time.
The moments it took Myrick to reach his gun are what
allowed [the killer] to continue shooting and almost escape.
Gun laws, and nothing else, gave [the killer] that time.148
Just a few days later in Edinboro, Pennsylvania, a fourteen-year-old
went to a Friday night junior high graduation dance, wielding a handgun he
147
148
Ohio Trainer Makes the Case for Single-Officer Entry Against Active Killers, supra note 137.
Wayne Laugesen, A Principal and His Gun, BOULDER WKLY., Oct. 15, 1999.
2009]
545
had taken from his father. On the patio of the restaurant where the dance
was being held, he fatally shot a science teacher in the head. The killer
then entered the building, and fired several shots, wounding two students.
The killer fled through a rear exit, pursued by the restaurant’s owner,
James Strand, who had grabbed a shotgun. Strand caught up with the killer
in a nearby field, and forced him to surrender.149
At Appalachian Law School, in Grundy, Virginia, in 2002, a former
student went to the office of two professors, and killed them both at close
range with a handgun, and also killed a student. Law student Tracy
Bridges, formerly a sheriff’s deputy, ran to his automobile and retrieved
his .357 magnum revolver. Another student, Mikael Gross, a police officer
from North Carolina, went to his car and got his semi-automatic pistol and
body armor.150 Gross and Bridges did not know about each other; they
confronted the killer when he had left the building. Bridges shouted an
order to the killer to drop his gun. The killer dropped the gun, and was
wrestled to the ground by other law students, including Ted Besen and
Todd Ross. According to Besen’s version of the story, the killer had
already dropped the gun by the time that Bridges shouted his order.
Bridges remembers that the killer dropped the gun only after the order.
Considering the fast-moving and chaotic situation, it is possible that both
Besen and Bridges may be sincere in recounting their version of events.
They were, understandably, not focusing their attention on each other, but
on the killer.151 It appears that Besen did not claim that the killer had
already put down his gun until about two months after the attack.152
Schools are not the only places where citizens with lawfully-owned
guns have stopped mass murderers. For example, in Colorado Springs,
Colorado, in December 2008, a sociopath entered a large church, and
began shooting people. But he was quickly engaged by fire from Jeanne
Assam, a church member who was volunteering to provide security at the
church, and who was carrying a handgun pursuant to a “Shall Issue”
149
Pennsylvania Students Cope with Shooting Spree, CNN, Apr. 25, 1998, http://www.cnn.com/
US/9804/25/school.shooting.pm/.
150
Rex Bowman, Helping to Stop a Killer: Students Went After Law School Gunman, RICHMOND
TIMES DISPATCH, May 5, 2002, at A8; James Eaves-Johnson, Law School, Guns, and a Media Bias,
DAILY IOWAN, Jan. 24, 2002; Laurence Hammack et al., Shooting Hits Many Lives, ROANOKE TIMES,
Jan. 20, 2002, at A1; Jon Ostendorff, Area Officer Helps Wrestle Law School Gunman to Ground,
ASHEVILLE CITIZEN-TIMES, Jan. 19, 2002, at 1B; Diane Suchetka, Ex-Charlottean: I Helped Nab
Suspect, CHARLOTTE OBSERVER, Jan. 18, 2002, at 2A.
151
Bowman, supra note 150.
152
John Lott, Missouri Becomes 36th State with Right-to-Carry Law, JOHN LOTT’S WEBSITE,
Sept. 11, 2003, http://johnrlott.tripod.com/postsbyday/9-11-03.html.
The Brady Center calls
Appalachian State “the one example often cited by the NRA and gun lobby groups.” BRADY CENTER,
supra note 146, at 9. This statement is plainly false, since such groups also frequently point to Pearl,
Mississippi, and Edinboro, Pennsylvania. Surprisingly, the Brady Center report mentions these latter
two incidents in its litany of school shootings, but does not acknowledge how those attacks were
stopped. Id. at 32.
546
[Vol. 42:515
license issued under Colorado law. After a brief exchange of gunfire, the
murderer either was killed by the guard’s shots, or had killed himself.153
When the Tennessee state legislature considered a bill to allow faculty
licensed campus carry, Carole Borges (a former faculty member at several
colleges154) spoke in opposition: “It just escalates. Violence is not the
solution to violence.”155
It depends on what one means by “solution.” If one considers saving
the lives of many innocent people to be a positive outcome, then swift and
violent defense against campus killers has already proven to be an
outstanding solution.
V. OBJECTIONS TO CAMPUS DEFENSE
This section examines various objections to campus carry. The
objections can be broken into four major categories, each of which will be
addressed in order. The first objection is that campus carry is unnecessary,
either because campuses are already safe, or because other approaches to
campus security can be taken. A second objection is that campus victims
who resist an attack by an active shooter would actually cause more harm
than good—either because they are incapable of using firearms
competently or because police arriving at the scene would find a gun battle
to be more confusing than a scene in which one person is executing victims
methodically. The third objection is that even if licensed carry on campus
was successful at deterring mass murder attacks, or in stopping such
attacks in progress, the overall harm would exceed the good. That is, the
reduction in mass murders would be outweighed by the harms caused by
faculty or adult students who were licensed to carry guns: the teachers and
students, if allowed to use their existing Carrying a Concealed Weapon
(“CCW”) permits on a campus, would commit violent gun crimes on the
campus. Closely related is a fourth objection: academic freedom would
suffer because teachers and students with CCW permits would intimidate
people from speaking up about issues being debated in classrooms.
A. Campus Carry Is Unnecessary
1. Schools Are So Safe that No Additional Precautions Are Necessary
Over twenty percent of college students have been the victim of at
153
Nicholas Riccardi & DeeDee Correll, Guard Saved Untold Lives, Officials Say, L.A. TIMES,
Dec. 11, 2007, at A16.
154
Knoxville Writers’ Guild, Profile of Carole Borges, http://www.knoxvillewritersguild.org/
borges.htm (last visited Nov. 16, 2009).
155
Anthony Welsch, Proposal Would Allow Faculty to Carry Guns in Classrooms, WBIR-TV
(Knoxville, Tenn.), Feb. 16, 2008, http://www.wbir.com/print.aspx?storyid=54632.
2009]
547
156
least one crime on or near campus.
Older teenagers and young adults
(persons aged sixteen to twenty-four) are victimized by violent crime at a
higher rate than any other age group.157 College students are victimized by
violent criminals eighty-one percent as often as non-students in the same
age group.158 So even though college students are nineteen percent less
likely than people in the same age group to be attacked by violent
criminals, they are still far more likely to be attacked than are persons in
any age group twenty-five or older.159 Accordingly, it appears that college
students have a greater general need to be able to defend themselves than
do older people.
About nine out of ten victimizations of college students take place offcampus.160 This is good news for campuses, and it indicates that college
students have a much greater need to be able to protect themselves from
violent crime off-campus than they do on-campus. This fact militates
against campus policies that significantly interfere with the ability of adult
students to protect themselves off-campus; for example, if a college
prohibits adult commuter students from leaving firearms locked in their
cars, then the students cannot protect themselves when traveling to or from
campus. Some states that have laws restricting guns in higher education
institutions have a provision to explicitly protect the right of adult students
to have firearms in locked cars. Similarly, most states restrict guns at K–
12 schools, and some have exceptions for guns owned by non-student
adults and stored in locked, parked cars.161 A well-written automobile
156
Wesley G. Jennings et al., Are Institutions of Higher Learning Safe? A Descriptive Study of
Campus Safety Issues and Self-Reported Campus Victimization Among Male and Female College
Students, 18 J. CRIM. JUST. EDUC. 191, 200 (2007).
157
U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, TEENS AND YOUNG ADULTS
EXPERIENCE THE HIGHEST RATES OF VIOLENT CRIME (2006), available at http://www.ojp.usdoj.
gov/bjs/glance/vage.htm (reporting National Crime Victimization Survey data for 1973–2006).
158
KATRINA BAUM & PATSY KLAUS, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
VIOLENT VICTIMIZATION OF COLLEGE STUDENTS, 1995−2002, at 2, tbl.1 (2005), available at
http://www.prisonandjail.org/bjs//pub/pdf/vvcs02.pdf (providing National Crime Victimization Survey
data for 1995–2002).
159
U.S. DEP’T OF JUSTICE, supra note 157.
160
BAUM & KLAUS, supra note 158, at 5.
161
The following is a list of car-specific exemptions. It does not include statutes which allow
carrying (or carrying pursuant to a permit) in general in K–12 schools or in higher education. ALASKA
STAT. § 11.61.210 (a)(7) (2008), ARIZ. REV. STAT. ANN. § 13-3102(I)(1) (2001), CAL. PENAL CODE
§ 626.9(c)(2) (West 1999), COLO. REV. STAT. § 18-12-105.5(3)(a) (2008), FLA. STAT. § 790.115(2)(a)
(2007), GA. CODE ANN. § 16-11-127.1(c)(17) (2009), IDAHO CODE ANN. § 18-3302D(4)(e) (2004),
IOWA CODE §§ 724.4, 724.4B (2001), LA. REV. STAT. ANN. § 14:95.6B(5) (2004), MICH. COMP. LAWS
§ 28.425o(1)(a) (2009), MINN. STAT. § 609.66(1d)(e) (2008), MO. REV. STAT. § 571.030(3) (2000),
MONT. CODE ANN. § 45-8-361(1) (2007) (school ban applies only to K–12 buildings, not parking lots),
NEB. REV. STAT. § 28-1204.04(1)(c) (2008), N.M. STAT. § 30-7-2.1(5) (2004), N.D. CENT. CODE
§ 62.1-02-05(2) (2003), OHIO REV. CODE ANN. § 2923.126 (West 2006), OR. REV. STAT.
§ 166.370(3)(f)(B) (2007), VT. STAT. ANN. tit. 13, § 4004 (1998) (school ban applies only to K–12
buildings, not parking lots), VA. CODE ANN. § 18.2-308.1(B) (2009), WASH. REV. CODE
§ 9.41.280(3)(f) (2008), W. VA. CODE ANN. § 61-7-11A(b)(2) (West 2009), WIS. STAT. § 948.61(3)(e)
(2007–08).
548
[Vol. 42:515
exception, either by statute or by campus regulation, should include all
automobiles driven onto campus by an adult, especially by an adult with a
concealed carry permit. The exception would take care of much of the
problem of school administrators interfering with off-campus lawful selfdefense by college students, as well as by university staff, and by K–12
teachers.
However, the automobile exception does not address the problem of
on-campus violent crimes against students, of which there are over thirty
thousand annually162—hardly a trivial number. Nor does an automobile
exception fully address the problem of school mass shootings.163 Some
reform opponents point out that, depending on the year, the number of
victims of mass murders on American campuses is not too far different
from the number of students who are killed from football injuries
(seventeen football deaths in 2006, thirteen in 2007).164 Mass homicides
are not, however, the sole part of the homicide problem on college
campuses. From 1991 through 2003, there were at least ten homicides on
American college campuses every year, and sometimes as many as twentyfour.165 Most of these were not mass murders, but more ordinary crimes,
such as killing a robbery victim, for example.166
Besides, the fact that the general violent crime rate on campus is lower
than in many other locations, or that the total number of murder victims on
campus is no more than several dozen per year (and often less) is hardly a
reason not to take steps to reduce the victimization rate. After all, nobody
says, “The death rate from AIDS in our county is lower than in most other
counties. Therefore, we should not consider policies which might further
reduce the county’s AIDS rate.”
Here, one might draw an analogy to churches. The crime rate in
churches, synagogues, mosques, and other religious sites is also low. But
most state governments do not enact laws specifically outlawing gun-
162
BAUM & KLAUS, supra note 158, at 5 & tbl.4.
See supra Part IV.C. (noting that guns stored in automobiles were used to help stop school
shootings in Pearl, Mississippi and at Appalachian Law School).
164
Frederick O. Mueller & Bob Colgate, Annual Survey of Football Injury Research, 1931–2008,
at tbl.II (2009), available at http://www.unc.edu/depts/nccsi/FootballAnnual.pdf. An important
distinction is that football is a known risky activity in which participants choose to assume the risks.
Attending classes for a Master’s Degree program in history, or teaching a tenth grade algebra class, are
not supposed to be activities in which a participant knowingly assumes a risk of death or crippling
injury. One approach to reduce football deaths would be to vastly expand shooting sports programs in
high school and junior high, and aim to entice students to participate in competitive shooting instead of
football. The death and injury rates from participation in competitive shooting is zero, making it far
safer that almost every other sport, and vastly safer than football. NAT’L SAFETY COUNCIL, INJURY
FACTS (2009 ed.).
165
Peter Wood, Homicides in Higher Education: Some Reflections on the Moral Mission of the
University, 20 ACAD. QUESTIONS 277, 293 (2007) (compiling data).
166
See generally id.
163
2009]
549
carrying in churches. They leave the policy up to the church itself.167
There has never been a known case where a person with a CCW permit
committed a violent crime in a church. There has been a case, however,
where a person with a CCW permit saved many lives.168
Of course if adult students and faculty are too incompetent to use
defensive arms safely169 or are dangerous characters who would commit
gun crimes if they had a gun,170 then the crime-reductive effects of campus
carry might be outweighed by other harms. However, if faculty and adult
students are neither incompetent nor dangerous, then the fact that campus
crime is relatively low compared to crime elsewhere is not a good reason
for failing to adopt measures which would improve campus safety.171
2. Alternative Approaches Obviate Any Benefits to Be Gained from
Campus Carry
a. More Gun Control
Some argue that instead of allowing licensed carry on campuses, there
should be greater gun control. This is a false dichotomy. There is no rule
that prevents a legislature from passing a bill to protect campus carrying
and from also passing another bill which increases restrictions on guns or
gun owners, if the legislature believes that both bills can help reduce mass
murders at schools.
Imagine the following argument:
Gallant: “Let’s improve the health of infants. We should
repeal the law which prohibits breastfeeding on government
167
Thanks to the First Amendment’s Establishment Clause and its parallel provisions in many
state constitutions, and to American public sensibilities, there are no state-supported churches in the
United States. If there were (as there are in many European nations), then it would not be improper for
the legislature to determine the firearms-carrying policy for the state churches, while leaving the
independent churches to set their own policies.
168
In December 2007, parishioner Jeanne Assam, legally carrying a handgun pursuant to a CCW
permit, stopped an active shooter’s attack on a church in Colorado Springs. See supra note 153 and
accompanying text.
169
See infra Part V.B.
170
See infra Part V.C.
171
It should also be noted that for some opponents of campus carry, the argument about the low
rate of campus crime is transparently hypocritical: the Brady Center to Prevent Gun Violence argues
against campus carry because crime rates are low on campus, and argues against employees being
allowed to store guns in workplace parking lots because crime rates are high at work. See BRADY
CENTER, supra note 146, at vi (arguing that guns increase the risk of violence at schools); BRADY
CENTER TO PREVENT GUN VIOLENCE, FORCED ENTRY: THE NATIONAL RIFLE ASSOCIATION’S
CAMPAIGN TO FORCE BUSINESSES TO ACCEPT GUNS AT WORK iii (2005); CENTER TO PREVENT
HANDGUN VIOLENCE, GUNS & BUSINESS DON’T MIX: A GUIDE TO KEEPING YOUR BUSINESS GUNFREE i–ii (1997) (arguing again that guns in the workplace increase violence). Thus, low crime rates
and high crime rates are both a justification for banning guns. For truth in advertising, the moniker “to
Prevent Gun Violence” might accurately be written “to Prevent Gun Ownership.” This is true in
regards to workplaces and campuses, where the Brady Campaign (and its legal action arm, the Brady
Center) advocate for gun prohibition.
550
[Vol. 42:515
property.”
Goofus: “That’s crazy! You are a pro-breast extremist.
We should improve infant health by enacting a law to
mandate the use of car seats for children.”172
The obvious fallacy of Goofus’s argument is that his proposal and
Gallant’s proposal are not mutually exclusive. Likewise, a legislature
could re-legalize campus carry (or override administrative bans on campus
carry) and make gun control laws more restrictive, such as by making
background checks more extensive, or by registering all guns, or by
banning particular models of guns. Assuming arguendo that a particular
gun control proposal would impose campus safety, nothing prevents a
legislature from enacting that gun control law and at the same time relegalizing campus carry.
Whether a particular gun control proposal would help save lives on
campus would, of course, be subject to debate. However, there is no
reason why the desire to have that debate should preclude the enactment of
campus carry legislation.
Only two proposed gun controls are incompatible with campus carry.
The first is banning all handguns, a proposal which would require repeal of
the Second Amendment and of its many state constitution analogues. The
other incompatible proposal would be a repeal of a state’s “Shall Issue”
law. As long as the law allows some people to own some handguns, then
the “Shall Issue” law will ensure that most people who can legally own
handguns can obtain a license to carry them, if they are willing to pay a
fee, pass a safety class, and submit to fingerprinting.
Thus, unless an advocate is proposing an (unconstitutional) ban on all
handguns, or an (unpopular) repeal of “Shall Issue,” there is no reason why
a legislative body cannot enact campus carry reform and a new gun control
bill, presuming that the legislature believes that both laws will improve
public safety.
b. More Security Guards and Metal Detectors
This other proposal is also not incompatible with campus carry.
Presumably, if campus carry were re-legalized, then the metal detector
personnel would authorize passage of a person with a licensed carry
permit—just as schools with metal detectors currently authorize passage of
security guards and police, or as airports allow passage of pilots who have
authorization to carry firearms in flight.
Senators Charles Schumer and Barbara Boxer have introduced
legislation to provide federal funding for security at high schools and
172
The names are two characters in a comic strip in the children’s magazine Highlights. Gallant
always provides the good example, and Goofus the bad one.
2009]
551
173
colleges.
The proposal is not incompatible with campus carry, although
it might arguably be inconsistent with federalism.174 If security guards or
police were willing to engage aggressively and immediately against an
active shooter (rather than just calling for the S.W.A.T. team), then they
might well be able to stop a campus shooting in progress. But unless the
security level is so dense that there is at least one guard in every building
that is in use, and several guards in every multi-story or large building,
then there may be considerable carnage and death before any guard has
time to respond. After all, at Northern Illinois University in February
2008, campus police arrived within minutes of a shooting outbreak.
However, they did not arrive quickly enough to stop five people from
being murdered, and many more from being wounded.175
Colorado’s “Shall Issue” law states that a government building may be
declared a gun-free zone, and made off-limits to licensed carry, if and only
if the government makes it a true gun-free zone, by setting up metal
detectors at every entrance.176 The metal detectors should prevent a
criminal from bringing a gun into the building. Only then, according to
Colorado law, is it fair to tell licensed citizens that they cannot carry their
defensive arms. A similar policy would be fair on campus. If a building is
genuinely secured with metal detectors, then banning licensed carry within
the building is reasonable.
As a practical matter, metal detectors have several limitations. First, at
K–12 schools, almost all students arrive at the school for the first period
within a narrow time window. Processing hundreds of students and
teachers so quickly is very difficult, unless the school is willing to pay for
staff to monitor multiple lines, as at airports. Second, at airports and at
173
See Press Release, Senator Charles E. Schumer, After Series of Tragic School Shootings and
Scares at NYC Area Schools, Schumer Calls for Passage of Key Legislation and Massive Federal
Mobilization to Stem Rash of School Violence, Protect the Million [sic] of Kids at NYC Schools (Feb.
16, 2008), available at http://schumer.senate.gov/new_website/record.cfm?id=293534.
174
After all, federal funds are simply funds that are raised from taxpayers in various states (or, in
case of a deficit, debt imposed on future generations). Accordingly, if security guards are a costeffective way to improve campus safety, the spending might as well take place at the state and local
level, where balanced budget requirements often succeed at ensuring that the current year’s spending
desires are matched with the current year’s revenue.
175
Gunman Kills Five, Injures 16 in Attack at University, VIRGINIAN-PILOT, Feb. 15, 2008, at A1.
176
COLO. REV. STAT. § 18-12-214 (2008). The statute states, in relevant part:
(4) A permit issued pursuant to this part 2 does not authorize a person to carry a
concealed handgun into a public building at which:
(a) Security personnel and electronic weapons screening devices are
permanently in place at each entrance to the building;
(b) Security personnel electronically screen each person who enters the
building to determine whether the person is carrying a weapon of any
kind; and
(c) Security personnel require each person who is carrying a weapon of any
kind to leave the weapon in possession of security personnel while the
person is in the building.
Id.
552
[Vol. 42:515
secured government office buildings, metal detectors are not simply staffed
by a single person who looks at the TV monitor. Every checkpoint is
manned or backed up by two or more armed officers. This reduces the risk
that an attacker will simply kill the unarmed employee at the metal detector
and then proceed inside for further attacks.177
Many American college campuses are sprawling facilities covering
hundreds of acres. Preventing public access onto these campuses is
impossible—unless one were to surround the campus with high fencing,
and allow access only through a few checkpoints.178 Some college
campuses do consist of just a few buildings whose entrances could be
genuinely secured by metal detectors backed up with armed guards. So for
any school, or building within a school, which is genuinely secured, the
need for licensed carry is greatly reduced. Accordingly, this Article’s
proposal for licensed carry on campus need apply only to campuses and
school buildings which are not effectively secured—which is to say,
almost all of them.
A real “gun-free zone” is fine. A pretend “gun-free zone” is a deadly
legal fiction. The pretend zone—that is, a zone which exists by
administrative declaration but is not enforced by metal detectors with
armed guards—is simply a zone where the people who follow the rules are
made into easy victims for mass killers.
c. “Alternative Survival Options”
The leading lobby against campus carry is the Brady Campaign. The
group’s legal research arm is known as the Brady Center. Arguing for gun
prohibition on all campuses, the Brady Center writes that “there are
numerous survival options for students, faculty, and staff when confronted
with an armed attacker that do not involve carrying a gun and firing back at
him.”179 This is a rather callous remark.
In a footnote in its report, No Gun Left Behind: The Gun Lobby’s
Campaign to Push Guns into Colleges and Schools, the Brady Center cites
a security expert’s five recommendations: “(1) try to get away, (2) lock the
door and barricade it, (3) concealment, (4) play dead and (5) fight back if
177
This is what happened at Red Lake High School in Minnesota in 2005. A neo-Nazi student
murdered his grandfather (a police officer) and the grandfather’s girlfriend, then stole the grandfather’s
service weapons, and drove his police car to the school. There, the killer murdered an unarmed metal
detector operator, and then entered the school to murder six more victims. David Hancock, Tales of
School Shooting Bravery: Slain Security Guard, Wounded Student Saved Others from Teen Gunman,
CBS NEWS, Mar. 24, 2005, http://www.cbsnews.com/stories/2005/03/24/national/main682915. shtml?
source=search_story; Victims, Key People in Story, GRAND FORKS HERALD, Mar. 21, 2006.
178
College campuses in Ethiopia are in fact secured this way, although the motivation is not so
much student security as the dictatorship’s intent to exclude outsiders who might criticize the
government. Interview with Habtamu Dugo, Senior Fellow in Human Rights, Indep. Inst. (Mar. 2008).
Dugo is a former Ethiopian college professor who fled to the United States and was granted political
asylum.
179
BRADY CENTER, supra note 146, at 10.
2009]
553
180
you’re sure you’ll be shot.”
These are indeed tactics which have helped
some people survive some mass shootings. But quite obviously, these
“numerous survival options” did not result in survival for the victims at
Virginia Tech, Northern Illinois University, Columbine High School, and
elsewhere.
The best way to increase the survival rate is to have all the survival
options available. Since only a small percentage of the adult population
has a CCW permit (well under ten percent in most states, and far less in
other places),181 then it is good that people be aware of all the survival
options.
It would be a bad idea to exclude any survival action simply because
an organization found it ideologically offensive; for example, a legislature
should not make it illegal to “fight back” just because some pacifists are
opposed to all forms of violence. Likewise, a legislature should not make
it illegal to defend oneself with a firearm, simply because some people
abhor gun ownership. The more survival options that are available, the
more survival there will be.
B. Self-Defense Will Fail
Another set of arguments against campus carry contends that campus
defenders are incapable of competent defense against active shooters.
First, teachers are “overwhelmed” and thus they cannot achieve
competence at any additional task. Second, campus defenders will
accidentally kill more innocent people than murders would kill
intentionally. Third, campus defenders would confuse police arriving at
the scene. Finally, citizen defenders do not have as much training as the
police.
1. Teachers Are Already “Overwhelmed”
As discussed above, the Nevada Board of Regents and Nevada
legislature considered proposals to allow campus carry by professors and
public school teachers who would undergo the same training as police
officers and then be deputized as reserve officers.182 This proposal would
eliminate the school safety monopoly currently enjoyed by full-time
security officers. Ken Trump, president of a for-profit company, National
School Safety and Security Services, which sells consulting services to
schools, did not like the idea. He urged that the government instead spend
more money on companies such as his own:
180
Id. at 41 n.97 (citing Bill Redeker, Surviving a School Shooting, ABC NEWS, Apr. 17, 2007,
http://abcnews.go.com/US/story?id=3050247&page=1).
181
See Blog O’Stuff, supra note 16 (providing state statistics related to adults with licenses to
carry).
182
See supra text accompanying notes 67–70.
554
[Vol. 42:515
“Teachers get into education to teach, not to be cops,”
Trump said. “Teachers are already overwhelmed with all of
the academic, behavioral and administrative tasks they have
to perform. To say you’re going to add a whole other role
and mind-set is unrealistic.”
Debate about arming teachers surfaces periodically in
other states, usually in the wake of a high-profile campus
shooting, Trump said.
“Rather than off-the-wall proposals, how about our
legislators focus on stopping the cuts to funding for school
safety and emergency preparedness, mental health services
and support programs,” Trump said. “That might actually
provide an improved learning environment, instead of trying
to make teachers into cops.”183
If we accept Trump’s argument that teachers get into education to teach,
not to be cops, then teachers should never be taught how to perform first
aid or CPR, since teachers get into education to teach, not to be doctors.
As for the argument that “[t]eachers are already overwhelmed,”
perhaps not all teachers throughout Nevada are as “overwhelmed” as
Trump claims. Significantly, no teacher would be forced against her will
to participate in the program. Given that participation would be 100%
voluntary, it was fatuous for Trump to object that teachers are too
“overwhelmed.”184
2. Selfless Courage Must Be Discouraged
Every major world religion lauds people who charitably accept grave
risks to themselves in order to protect other innocent citizens. Yet some
educational administrators actively attempt to discourage such actions. For
example, the University of Colorado tells students that, in case of an attack
by a mass killer, “Do not be a hero. Be a good witness.”185 Arguably, the
183
Richmond, supra note 69.
A similar point was expressed by Gannett News national columnist DeWayne Wickham: “If
school officials in Harrold want to make schoolchildren more secure, they should give that
responsibility to trained personnel instead of pushing it onto gun-toting teachers. Those teachers have
enough to do as it is.” DeWayne Wickham, Guns in Class? Maybe School Officials Should Start
Doing Their Jobs, Gannett News Service, Aug. 26, 2008. For more on Harrold, Texas, see supra note
63. There are many teachers who would not want to carry a firearm; of that group, some would,
however, be interested in training with and carrying defensive sprays, or in learning some basic
techniques of unarmed combat—particularly, how to disarm someone when his attention is distracted.
185
Kirk Mitchell, Colorado Campuses Respond to Illinois Rampage, DENVER POST, Feb. 15,
2008, http://www.denverpost.com/food/ci_8271956; University of Colorado Denver Emergency
Announcement, https://lists.ucdenver.edu/cgi-bin/wa?A3=ind0802&L=EMERGENCY-ANNOUNCE
MENTS&E=quoted-printable&P=3693&B=------_%3D_NextPart_001_01C86F63.7E72E361&T=text
%2Fhtml;%20charset=US-ASCII (last visited Oct. 6, 2009) (posting emergency notification sent on the
day of the attack on Northern Illinois University).
184
2009]
555
university should not pressure people to act courageously. But why should
the university discourage selfless courage?
Several school shootings have been stopped by people who acted
heroically against an armed killer. Examples include not only the three
school shootings that were stopped by armed citizens—Pearl, Mississippi;
Edinboro, Pennsylvania; and Appalachian Law School, all discussed
supra.186 In 1998, at Thurston High School in Springfield, Oregon, a killer
was stopped when he was tackled to the ground by Jake Ryker, with the
assistance of his younger brother Robert and three fellow Boy Scouts.
“Jake Ryker gave credit to the fact that he had taken a marksmanship and
safety training program given by the National Rifle Association.”187
Because of the firearms safety training, the brothers were familiar with
firearms; they watched for when the killer paused to change magazines in
his gun, and at that point they acted aggressively, and heroically, and
stopped the killer.188 Two people had already been fatally wounded, and
many more likely would have been if not for the Boy Scouts’ heroism.
When Minnesota’s Red Lake High School was attacked in 2005,
sophomore Jeffrey May saved several other students by grappling the
killer, and attacking him with a pencil.189 May was shot in the right cheek,
causing a stroke which partly paralyzed the left side of his body. Thanks
to physical therapy, he was eventually able to walk again without a cane,
but his left arm remains partially paralyzed. The readers of Reader’s
Digest magazine voted May the 2005 Hero of the Year.190
Under the University of Colorado’s mandate, the Ryker brothers and
Jeffrey May should have simply paid careful attention while their
classmates were slaughtered one after the other; later, the attentive but
inactive bystanders could have been given a Good Witness Certificate. But
the University of Colorado campuses are home to thousands of studentathletes, as well as a general student body which is highly interested in
outdoor sports and fitness—precisely the kind of young men and women
who would have a good chance of overpowering the unfit sociopaths (i.e.,
an unhealthy mind in an unhealthy body) who are typical perpetrators of
school shootings.
Even after the mass murder at Virginia Tech, the university strove to
make sure that no one on its campus acts like the Ryker brothers did. The
Virginia Tech campus policy tells employees “What to Do When Violence
Occurs.” The rules include: “Avoid challenging body language such as
placing your hands on your hips, moving toward the person, or staring
186
See supra Part IV.C.
Reed Irvine & Cliff Kincaid, Does Anyone Remember Jake Ryker?, MEDIA MONITOR, June 15,
1999, http://www.aim.org/media_monitor/ does-anyone-remember-jake-ryker/.
188
Id.
189
Hancock, supra note 177.
190
Victims, Key People in Story, supra note 177.
187
556
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directly at them. If seated, remain in your chair and do not turn your back
on the individual.”; and “Never attempt to disarm or accept a weapon from
the person in question. Weapon retrieval should only be done by a police
officer.” 191
Under the Virginia Tech rules, Assistant Principal Joel Myrick would
have been a bad employee when he took the gun which was being
surrendered by a killer who had already murdered his mother, shot several
students, and was on his way to kill more—until Myrick stopped him.192
One set of values says, “Don’t be a hero; don’t try to stop the gunman;
don’t even accept the gun if he tries to give it to you.” A different set of
values says, “Choose to save the lives of innocents, even if you risk your
own by doing so.” What would we think of a university that told its
employees and students, “Don’t be a hero. If you see someone choking to
death, or drowning, don’t try to save them. Be a good witness. Just call
the police. Never mind whether you are trained in first aid, or whether you
are an intercollegiate swimmer with training in water rescue. Don’t be a
hero.”? We would call such instructions monstrous. The instructions are
no less monstrous in the context of stopping an active shooter. Of course
the circumstances can vary. A person who is strong enough to throw an
active shooter to the ground might not know how to swim. Plunging into
the water, or moving toward an active shooter involves a decision to risk
one’s own life—although in the case of an active shooter, one’s life is
already in extremely grave peril if one does not use counter-force. On the
other hand, accepting a gun from someone who is trying to surrender it
takes no skill at all; everyone who has at least one arm with the strength to
hold a few pounds can do so.
Are Americans “a nation of cowards”? Attorney General Eric Holder
recently said that they are because they do not have frank discussions about
race.193 He observed that one reason that such discussions do not take
place often enough is “that certain subjects are off limits and that to
explore them risks, at best embarrassment, and, at worst, the questioning of
one’s character.”194 Certainly organizations such as the Foundation for
Individual Rights in Education have documented many cases in which
administrators have punished students or faculty for violations of political
191
Virginia Polytechnic Institute and State University, Environmental, Health and Safety
Services, Workplace Violence, http://www.ehss.vt.edu/programs/EPP_workplace.php (last visited
October 31, 2009). A web search for the above-quoted words found them in the policies of
Northwestern University, George Mason University, the University of Michigan, and John F. Kennedy
University.
192
193
Remarks as Prepared for Delivery by Attorney General Eric Holder at the Department of
Justice African American History Month Program, Feb. 18, 2009, available at http://www.usdoj.gov/
ag/speeches/2009/ag-speech-090218.html.
194
Id.
2009]
557
195
correctness, including on issues of race.
In a famous 1994 essay in The Public Interest, attorney Jeffrey Snyder
also called Americans “A Nation of Cowards.”196 He chose that title for
the essay because he argued that too many Americans refuse to take
personal responsibility for their own safety. Rather than having a firearm
in the home which they know how to use (and he points out that becoming
solidly proficient with a firearm is far easier than learning how to play a
musical instrument), many people expect the police to protect them in an
emergency. This attitude is immoral and selfish, he contends. He argues
that it is wrong to expect a police officer to risk his life to save yours, if
you are not willing to take responsibility for defending your own life.197
Thus, for the First Amendment rights of freedom of speech and of the
press, or the Second Amendment right of self-defense, some universities
seem determined to create a nation of cowards.
The debate over campus carry exposes a much broader cultural divide:
the divide between traditional American attitudes of self-reliance,
confidence, and readiness to take personal action, versus a desiccated
feeling that individuals are victims of their circumstances, and not capable
of changing them, except perhaps by asking the government to change
their circumstances for them. One expression of the latter attitude is to
assert with certainty—even though the person making the assertion knows
virtually nothing about defensive firearms tactics, or about any form of
active self-defense—that armed citizen defenders would necessarily make
any situation worse. For example, after a campus carry bill passed out of a
Louisiana House committee, an editorial in the Shreveport Times warned,
“The picture that arises here is of concealed-carry-permitted students and
faculty missing the bad guy and shooting each other.”198
Again, this is an argument that has arisen frequently over the past two
decades, as “Shall Issue” laws have become the national norm. The
experience of armed defenders shows the inaccuracy of the prediction that
armed defenders are incompetent. Had the Shreveport Times merely
examined the situation in its own state of Louisiana, it would have found
that since 1996,199 there have been over 27,000 Louisiana citizens who
195
For examples, see Foundation for Individual Rights in Education, http://www.thefire.org/ (last
visited Nov. 16, 2009).
196
See Jeffrey R. Snyder, A Nation of Cowards, PUB. INT., Fall 1993, at 40.
197
Id. at 43–44.
198
Editorial, Concealed-Carry Guns Have No Place on College Campuses, SHREVEPORT TIMES,
May 6, 2008, at 1B.
199
See LA. REV. STAT. ANN. § 40:1379.3 (2008) (providing that as of April 1996, the Department
of Public Safety and Corrections would be responsible for rules and regulations for issue of handgun
permits).
558
[Vol. 42:515
200
have been issued concealed carry permits. Most of them have never had
to use the gun for self-defense, and for those who have, the mere display or
brandishing of the firearm has been sufficient to encourage the criminal to
stop the attack and leave the scene. According to the 2007–08 Louisiana
State Police Annual Legislative Report (the only report which is available
online), in the last reporting year, there were no “documented accidents or
deaths involving concealed handgun permittees.”201
Nationally, in our “Shall Issue” nation, the story is much the same.
There are hundreds of reported instances of CCW licensees actually firing
their guns and, in so doing, successfully stopping a violent crime in
progress. The reported instances of an innocent bystander being shot are
few.202
Again, this Article does not attempt to re-open the general debate on
“Shall Issue” in the United States. That debate took place over the last two
decades, and it has been resolved against advocates who insist that
Americans are a nation of klutzes—that ordinary citizens who have taken a
training class will be so incompetent with a gun that their attempts to stop a
violent crime in progress will do more harm than good.
Writer Clayton Cramer is perhaps best known as the scholar who did
the most to expose the hoax of Michael Bellesiles, a temporarily awardwinning author whose book, Arming America, claimed that guns were rare
in America until shortly before the Civil War, but whose purported
evidence (such as probate records) turned out to have been fabricated.203
Cramer also maintains a “Civilian Gun Self-Defense Blog” which collects
media reports of lawful self-defense by persons with firearms.204 The blog
does not purport to provide the full picture of armed self-defense, only a
fairly thorough collection of the instances which are reported in the media.
The blog was created in 2003 and by 2009 had collected 4000 cases. At
that point, Cramer tabulated some cumulative data. He found that of the
4000 cases there were six incidents in which a criminal took a gun from the
defender. There was one incident of a defender mistakenly shooting at
200
CONCEALED HANDGUN PERMIT UNIT, OFFICE OF STATE POLICE, LA. DEP’T OF PUB. SAFETY,
ANNUAL LEGISLATIVE REPORT 2007–2008, at 1 (2008), available at http://www.lsp.org/pdf/
chAnnualReport07-08.pdf.
201
Id. at i.
202
See generally WATERS, supra note 127 (describing stories of people who have saved
themselves from harm by use of a firearm); see also Howard Nemerov, Brady Campaign: Biased,
Inaccurate Research, AUSTIN EXAMINER, Apr. 12, 2009, http://www.examiner.com/x-2879-AustinGun-Rights-Examiner~y2009m4d12-Brady-Campaign-Biased-inaccurate-research (questioning the
credibility of the claims made in BRADY CENTER, supra note 146).
203
See MICHAEL A. BELLESILES, ARMING AMERICA: THE ORIGINS OF A NATIONAL GUN
CULTURE (2000); CLAYTON E. CRAMER, ARMED AMERICA: THE REMARKABLE STORY OF HOW AND
WHY GUNS BECAME AS AMERICAN AS APPLE PIE xii—xvi (2006). The former book was eventually
withdrawn by its publisher Alfred A. Knopf.
204
Civilian Gun Self-Defense Blog, http://www.claytoncramer.com/gundefenseblog/blogger.html
(last visited Oct. 8, 2009).
2009]
559
someone (police who were investigating a burglary at an auto dealership
started shooting at an employee, and he returned fire). And, while most
self-defense incidents occurred in a place where carry permits are not
needed (e.g., one’s home, one’s own business, or, in some states, one’s
automobile), there were 212 self-defense cases with licensed carry permit
holders.205
We know from experience that the millions of Americans who carry
licensed handguns almost everywhere in their states are not a nation of
klutzes. Accordingly, one must ask whether the millions of Americans
who do not act incompetently when the need for armed self-defense arises
will somehow turn into dangerous buffoons if the attack takes place on a
college campus. To emphasize again, the question involves only persons
who are already licensed by the state to carry almost everywhere within
the state.
On college campuses, by far the most common type of violent crime is
similar to that which occurs off-campus: a young woman is assaulted and
raped in a parking lot, a young man is surrounded by some gangsters who
rob him and then beat him up for fun.206 The graduate teaching assistant
who works late at school, and who wishes to defend herself from an attack
in the school parking lot, is no less competent to do so there than she is in
the parking lot of the grocery store. If she is capable of responsible selfdefense in the grocery store parking lot (and the state has already
determined that she is), she is equally capable in the school parking lot.
An active shooter situation at a school is more complicated. Compared
to an ordinary violent crime, there are likely to be many more people in the
area. Depending on the particular circumstance, the armed defender might
be just a few feet away from the attacker—a distance that is typical for
ordinary self-defense situations—or on the other side of a large room.
But even in the latter situation, the balance of risks favors active selfdefense. Imagine a scenario in which all of the killer’s victims are either
lying on the ground (following the Brady Center’s advice to “play
dead”)207 or are running in panic. Nobody is trying to stop the killer; all
the victims are following the university rules of “Don’t be a hero” and
“Never attempt to disarm” a violent attacker. For the people on the
ground, the killer can inflict a head shot at close range that will very likely
205
Clayton Cramer, A Milestone: The 4000th Entry on the Civilian Gun Self-Defense Blog,
http://www.claytoncramer.com/weblog/2009_04_19_archive.html#6156324322914958524 (Apr. 21,
2009, 08:12 EST). In one notable off-campus incident in College Park, Georgia, two masked men
attacked a birthday party in a student apartment, apparently intended to rob, rape, and murder them.
One student grabbed a gun from his backpack, and shot one of the attackers. The other attacker fled.
“I think all of us are really cognizant of the fact that we could have all been killed,” remarked student
Charles Bailey.
College Student Shoots, Kills Home Invader, WSBTV, May 7, 2009,
http://www.wsbtv.com/news/19365762/detail.html.
206
BAUM & KLAUS, supra note 158, at 2.
207
See discussion supra notes 179–80 and accompanying text.
560
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be fatal. Hitting a moving target is more difficult. Of course, the killer’s
chance of inflicting a fatal or crippling wound on the moving target are
much better if he is concentrating on accurate shooting.
Now consider a second scenario. This time, someone is shooting back
at the killer. It has been said that “when a man knows he is to be hanged in
a fortnight, it concentrates his mind wonderfully.”208 So does being shot
at. It is much more difficult to shoot accurately if someone is shooting at
you. If the net result is that the attacker and the defender both end up
firing a lot of inaccurate shots, the result is likely to be a large net savings
of lives. The killer will never have the time for an accurate head shot on a
close-range victim, and his chances against the mobile victims will
diminish greatly. Maybe a stray shot from the killer will hit someone, but
that shot is less likely to be an accurate one which would inflict a fatal or
crippling injury. There would be a risk that a third party could be injured
by a stray shot from the defender. But the defender would have not been
aiming at the third party and trying to kill him, so there is some chance that
the stray shot would not inflict a critical injury. Massively degrading the
lethal accuracy of a shooter who is intent on mass homicide is likely to
save many more lives than might be lost because one or two of the
intended victims were fighting back.
3. The Police Will Kill People Because of Mistaken Identity
Some campus police chiefs worry that police officers coming on the
scene will not know if the shooter is a legitimate defender, or is the
attacker. Identifying the “kid without a plan” would take up police time
while they took him into custody. Or he might be mistakenly shot by
police.209
These objections, however, do not just apply to campus defense. They
are applicable in any case where police come upon a crime scene in which
the victim is resisting successfully. Already in most of the United States,
concealed permit holders can carry almost everywhere in public. The risk
of police confusion or mistake is no greater on a campus than it is
anywhere else in a state. After decades of experience with licensed carry
around the nation, opponents of licensed carry cannot point to frequent
instances of the police harmfully mistaking an armed victim with a carry
208
JAMES BOSWELL, 2 THE LIFE OF SAMUEL JOHNSON 152 (1791) (attributing the aphorism to
Johnson).
209
Michele Linck, No Guns on South Dakota Campuses, For Now, SIOUX CITY J., Feb. 16, 2008,
http://www.siouxcityjournal.com/articles/2008/02/16/news/local/660b198e85dff68a862573f10016cba7
.txt; see also Geoff Fox, UCF Student Group Seeks Guns Rights, TAMPA TRIB., Apr. 4, 2008, at 1
(reporting on the University of Central Florida police chief asking, “How are the police supposed to
know the good guys from the bad guys?”); Israel Saenz, Students Wearing Holsters Trigger Debate at
A&M-CC, CORPUS CHRISTI CALLER TIMES, Apr. 23, 2008, http://www.caller.com/news/2008/apr/23/
students-wearing-holsters-trigger-debate-at-am/ (questioning campus police chief saying that his force
of sixteen officers would find it “hard . . . to differentiate between the good guys and the bad guys”).
2009]
561
license for a perpetrator.
Indeed, quite apart from citizens having guns for self-defense, police
often face situations where they have to make a quick decision about who
is the attacker and who is the victim. Encountering a brawl in a bar, a
domestic violence incident, or a robbery in which the victim is fighting
back, the police may not know immediately who is the perpetrator and who
is the victim. The police are specifically trained to deal with such
situations, and this training helps them avoid shooting the victims by
mistake.
Moreover, in a “Shall Issue” state, the legislature has already decided
that in almost all public places, the benefits of armed resistance by victims
far outweigh the potential risk of a police mistake. If a would-be mass
murderer starts trying to kill people at a shopping mall, or a public park,
then the “Shall Issue” law makes it entirely possible that by the time the
police arrive, one or more victims will have already started shooting back.
But the most important fact is that the police are fairly unlikely to
encounter the active shooter. In the large majority of active shooter
incidents at schools, when the perpetrator hears that the police are close by,
he kills himself.210 Not every single active shooter incident ends this way,
but the number of cases in which the imminent arrival of the police leads to
suicide by the active shooter far outnumber the cases in which the active
shooter fights it out with the police.211 So, by the time the police get there,
the shooting will probably be over. This will either be because the killer
heard the police coming and killed himself, or it will be because somewhat
earlier, a victim was able to fight back and the killer was stopped sooner.
In case the police burst in on a gun battle in progress, the killer’s prompt
suicide may well end any confusion.
210
For an example of such a response by an active shooter, see supra note 139. MSNBC
commentator Clint Van Zandt (formerly the FBI’s Supervisory Special Agent during the Waco siege)
writes:
I totally agree that a number of armed students, faculty or staff on the Tech campus
could have made a difference during [the murderer’s] killing spree, but I’m not sure
the difference would have resulted in a better outcome. Would the armed students
know who, among those with guns, was the real shooter that needed to be stopped?
How should the police officers who flooded the campus looking for the shooter have
responded when confronted by one or two or 50 students and others wielding guns
as they ran helter skelter across the campus quad? Could the situation, as terrible as
it was, have become even more tragic were innocents to have shot other innocents in
the haste of a moment, trying to identify the real shooter as they looked down the
barrel of their own gun while their heart beat so loud they couldn’t hear themselves
think?
Clint Van Zandt, Would Students Be Safer if They Carried Guns? MSNBC, Aug. 20, 2007,
http://www.msnbc.msn.com/id/20301979//. It takes more than a string of rhetorical questions to
seriously imagine a scenario in which the confusion resulting from two (or fifty) students resisting a
mass killer would result in more deaths than the thirty-five for which the killer had free rein against
defenseless victims.
211
562
[Vol. 42:515
4. Training
Every one of the competence arguments that has been deployed against
“Shall Issue” laws in general, or campus carry in particular, can be used
against the principle of police officers having guns. After all, police
officers do occasionally make mistakes. They shoot the wrong person, or
they aim at the right person and hit the wrong person. Or an off-duty or
undercover police officer starts firing at a violent criminal, and then when
uniformed police arrive, they are confused about who is the bad guy.
These situations do happen, albeit not frequently. Society sensibly decides
that the net public safety benefit of armed police far outweighs the
statistical certainty (over the long run) of occasional police errors.
In the forty “Shall Issue” states, the legislatures have made a similar
determination about the public safety benefit of armed citizens in general.
“But the police are trained!” comes the opposition’s refrain. The answer in
most states has been to require that concealed handgun permitees also be
trained. The training does not need to be as extensive as that which a
police officer receives; to carry a handgun for lawful protection, citizens do
not need to know how to conduct vehicle pursuits or how to interrogate a
suspect without violating his Miranda rights. The citizens are trained to
know the self-defense laws of their state, particularly those involving lethal
force, and to know the fundamentals of gun safety and defensive gun use.
Experience has shown, nationally, that this level of training is fully
sufficient so that the parade of horribles offered by opponents of “Shall
Issue” does not come true.
One way to test the sincerity of the argument, “But the police have
training,” is to meet it. That is precisely what the Nevada Regents did,
before they changed their minds. Under the plan that won initial approval
in Nevada, the only people who could carry on Nevada public higher
education campuses would be professors and other full-time employees
who, at their own expense, underwent the training necessary to become
reserve police officers, and who were then formally sworn as such
officers.212
The furious opposition to this proposal from some persons in Nevada
higher education suggests that the opposition to campus carry may
sometimes arise from visceral hostility to guns or to self-defense, rather
than to the actual harm that campus carry could cause. While this Article
argues in favor of campus carry, it recognizes that political realities and
cultural norms differ widely. So while the ideal approach might be to
follow the Utah policy, a much narrower policy, such as the Nevada plan,
would be much better than nothing.
212
2009]
563
5. Killers Will Adopt New Tactics Which Make Resistance Futile
According to the Brady Center, armed defense would be futile,
because attackers might respond by “wearing flak jackets.”213 This seems
unlikely. First of all, the real-world experience is that criminals do run the
risk of encountering an armed victim when they break into an occupied
home (since about half of the homes in America have guns),214 and
likewise the risk of encountering an armed victim outside the home in the
forty states with “Shall Issue” laws. The resulting problem of criminals
wearing what the Brady Center calls “flak jackets” has not emerged.215
Certainly, criminal use of body armor has not made it futile for police or
ordinary citizens to possess firearms for lawful defense.
Moreover, body armor (or a “flak jacket”) does not mean that the
bullet bounces off harmlessly, as when comic book criminals try to shoot
Superman. The body armor will stop the bullet from penetrating, but the
force of the bullet can still be enough to break a rib, or knock a person to
the ground.216 Either result would impair the killer at least temporarily and
thereby provide more opportunity for victims to escape, or to pin the killer
to the ground. And a broken rib, or similar injury, stands a very good
chance of greatly degrading the killer’s accuracy.
The Brady Center also predicts that having armed teachers “would
simply make the teacher the likely first victim.”217 This is opposed to the
current situation, where the teacher might be the second, third, or fourth
victim. If we hypothesize that the Brady Center scenario came true, and an
attacker killed a teacher by surprise, the killer would have no element of
surprise against the other armed adults who might be in the building. Their
prompt actions might well prevent the killer from methodically murdering
defenseless schoolchildren.
213
See David B. Kopel, Lawyers, Guns, and Burglars, 43 ARIZ. L. REV. 345, 349–52 (2001).
Presumably, they mean bullet-resistant body armor. Flak jackets are a type of obsolete
military gear, although the term is sometimes loosely used for modern body armor. See Apparel
Search, Flack Jacket Definition, http://www.apparelsearch.com/Definitions/Clothing/flak_jacket.htm
(last visited Nov. 16, 2009).
[Flak jackets were] originally developed by the Wilkinson Sword company during
World War II to help protect Royal Air Force (RAF) air personnel from the flying
debris and shrapnel thrown by German anti-aircraft guns’ flak
(Fliegerabwehrkanone), a type of exploding shell. The jacket consisted of titanium
plates sewn into a waistcoat made of ballistic nylon (a material engineered by the
DuPont company); therefore, flak jackets functioned as an evolved form of plate
armour . . . . Ultimately, however, the jackets proved to be tragically ineffective, and
are now generally considered to be inferior to body armor. In modern usage, the
term flak jacket sometimes refers to contemporary bulletproof vests.
Id.
216
See L. Cannon, Behind Armour Blunt Trauma—An Emerging Problem, 147 J. ROYAL ARMY
MED. CORPS 87, 87 (2001) (discussing effects of projectile impact on body armor).
217
214
215
564
[Vol. 42:515
C. Faculty and Adult Students Are Incipient Killers
Even if licensed campus carry did save lives by deterring or
terminating mass homicides, the question remains as to whether the net
result would be more deaths on campus, because teachers and/or students
would commit so many more crimes because they were legally carrying
firearms. Empirical evidence suggests not.
1. People Licensed to Carry Handguns for Lawful Defense Are Very
Dangerous
If people with concealed carry permits were already known to be a
menace to society, we would not want them on campus. Conversely, if
permitees had already demonstrated themselves to be highly law-abiding,
then we would want to exclude them from campus only if there were some
reason why they might become abnormally dangerous on campus. So the
first issue is whether CCW permitees are dangerous in general.
Several states require a state police agency or the Attorney General to
compile an annual report about CCW licenses, as well as revocations of
permits, and the behavior of permitees. These state requirements are
examined below.
a. Minnesota
In Minnesota, the Department of Public Safety must produce an annual
report detailing concealed carry license issuances, denials, and
revocations.218 As of December 31, 2008, there were 56,919 valid permits
in the state.219 In 2008, twenty-one permits were revoked; most of the
revocations were not for conduct with the firearm, but because the person
was discovered to be ineligible by law to possess firearms (e.g., marijuana
was found in the person’s home), or because the sheriff, using discretion
which exists in the Minnesota “Shall Issue” statute, had made a factual
determination that the applicant was a danger to himself or others. There
were two revocations for carrying a firearm while intoxicated, and one
revocation for a felony conviction for a crime involving use of a firearm.220
Since the Minnesota law went into effect, there have been 454 crimes
committed by permit holders. (Because a permit holder may be charged
with more than one crime for a particular act, the number of permit holders
who were convicted of crimes is lower, although the exact number is not
clear from the report.) These crimes range from “Address change—failure
218
MINN. STAT. ANN. § 624.714 (West 2009).
BUREAU OF CRIMINAL APPREHENSION, DEP’T OF PUBLIC SAFETY, STATE OF MINN., Permit to
Carry Valid Permits Report, in 2008 PERMIT TO CARRY REPORT 1 (2009), available at
http://www.dps.state.mn.us/bca/CJIS/Documents/CarryPermit/2008PTSReport.pdf.
220
BUREAU OF CRIMINAL APPREHENSION, DEP’T OF PUBLIC SAFETY, STATE OF MINN.,
Revocations Explanation Report, in 2008 PERMIT TO CARRY REPORT 1–2 (2009), available at
219
2009]
565
to notify” to “Traffic—other” (comprising sixty-seven of the crimes). The
report also states whether the person was known to have “used [a] pistol”
in the crime. There are forty such crimes, although “used” must be
interpreted liberally; for example, three of the “used [a] pistol” crimes are
for driving while intoxicated.221 Presumably, the intoxicated driver had the
handgun in his car (the permit allows a person to possess the gun while in
an automobile, but possession while intoxicated is always forbidden), but it
seems doubtful that the handgun was actually “used” for the act of driving
while intoxicated.
Thus, since 2003, we have 56,919 permitees and forty handgun crimes,
or about one such crime per 1423 permitees. It would be difficult to find a
significant demographic group in the United States with a lower rate of
handgun crimes.
b. Michigan
According to the Michigan State Police report, there were 312 permit
revocations in Michigan between July 2007 and June 2008. The report
also tracks crimes involving concealed carry permitees. Again, it compiles
all cases in which someone was charged, including instances in which the
person was acquitted, or the charges were dismissed, or charges are still
pending and have not been resolved.222
The Michigan report lists 161 total charges (involving permitees) for
“Brandishing or Use of Pistol” during the previous fiscal year.223 Because
of overlapping charges, this involves fewer than 161 criminal acts. Out of
these 161 charges, the data suggest that the number of convictions would
be approximately forty-five.224 Accounting for overlapping charges, the
actual number of criminal acts might be between twenty-five and thirtyfive. The report does not specify whether the alleged crime occurred in a
221
BUREAU OF CRIMINAL APPREHENSION, DEP’T OF PUBLIC SAFETY, STATE OF MINN., Section 5b
available at
Reporting Requirement, in 2008 PERMIT TO CARRY REPORT 11–12 (2009),
222
MICH. STATE POLICE CRIMINAL JUSTICE INFO. CTR., Statewide Totals, in CONCEALED PISTOL
LICENSURE: ANNUAL REPORT, JULY 1, 2007 TO JUNE 30, 2008, at 1–22 (2008), available at
http://www.michigan.gov/documents/msp/CPL_Annual_Report_2007-2008_269128_7.pdf.
223
Id. at 22.
224
The category “Carrying or possessing firearm when committing or attempting to commit
felony” (a sentence enhancer which would presumably involve most of the separately-listed nonregulatory crimes, such as burglary), lists seventy-nine cases of “Total charges.” MICH. STATE POLICE
CRIMINAL JUSTICE INFO. CTR., supra note 222, at 15. Of these, forty-six are still pending; twenty-two
of the charges were dismissed; two are classified as “Not Guilty/Not Responsible”; and nine are
classified as “Conviction/Found Responsible.” Id. Thus, in over half the cases, the charges are
unresolved; in the cases that were resolved, a little over a quarter of persons charged (nine out of thirtythree) were convicted. Yet, along the same line, listing the fact that there were only nine convictions,
there is a listing of twenty-seven instances of “Brandishing or Use of Pistol” during the crime. Id.
Based on the Report’s rate at which charges turn into convictions, we could estimate that slightly over
one-fourth of these cases, that is, seven or eight, would result in a determination that a licensee used a
pistol in a felony or an attempt to commit a felony in Michigan between July 1, 2007, and June 30,
2008.
566
[Vol. 42:515
place where the license might have facilitated the crime (e.g., while the
gun was being carried on a public sidewalk) or elsewhere (e.g., a crime in
the home).
Michigan’s “Shall Issue” licensing law went into effect on July 1,
2001. Licenses are valid for five years and may not be renewed before the
final year of the licensing period.225 Thus, the total number of valid
licenses in Michigan (as of the date of the last report, June 30, 2008) would
be somewhere between the number of licenses issued in the previous four
years (172,140) and the number issued in the last five years (203,261).226
Even if it was assumed that every “charge” merited a criminal conviction,
and that every charge involved a separate person (that is, there were no
duplicate charges filed), there were 161 misdeeds in 2007 and 2008 out of
an approximate Michigan licensed population of 190,000 people. This is a
rate of less than one per one thousand; once the conviction rate is factored
in, and duplicate charges eliminated, the rate approaches one in five
thousand.
As in other states, Michigan licensees are not absolutely perfect. As a
group, however, they seem to be overwhelmingly law-abiding, especially
with regard to their licensed carry pistols.
c. Ohio
The annual report of the Ohio Attorney General provides less detailed
information. As of December 31, 2008, the state sheriffs had issued
142,732 permanent licenses227 since the Ohio law went into effect in
2004.228 Since then there have been 639 revocations.229 Sheriffs do not
225
MICH. COMP. LAWS ANN. § 28.425l (West 2009).
MICH. STATE POLICE CRIMINAL JUSTICE INFO. CTR., supra note 222 (The number of licenses
issued was 56,919. The number of licenses revoked was 312.); MICH. STATE POLICE CRIMINAL
JUSTICE INFO. CTR., CONCEALED PISTOL LICENSURE: ANNUAL REPORT JULY 1, 2006 TO JUNE 30, 2007
(2007), available at http://www.michigan.gov/documents/msp/CCW_Annual_Report_2006-2007_
228850_7.pdf (The number of licenses issued was 23,790. The number of licenses revoked was 163.);
MICH. STATE POLICE CRIMINAL JUSTICE INFO. CTR., CONCEALED PISTOL LICENSURE: ANNUAL
REPORT JULY 1, 2005 TO JUNE 30, 2006 (2006), available at http://www.michigan.gov/documents/msp/
CCWAnnualReport_181416_7.pdf (The number of licenses issued was 36,754. The number of
licenses revoked was 108.); MICH. STATE POLICE CRIMINAL JUSTICE INFO. CTR., CONCEALED PISTOL
LICENSURE: ANNUAL REPORT JULY 1, 2004 TO JUNE 30, 2005 (2005), available at
http://www.michigan.gov/documents/CCWAnnual_Report 2004_2005_143245_7.pdf (The number of
licenses issued was 54,677. The number of licenses revoked was 121.); MICH. STATE POLICE
CRIMINAL JUSTICE INFO. CTR., CONCEALED PISTOL LICENSURE: ANNUAL REPORT JULY 1, 2003 TO
JUNE 30, 2004 (2004), available at http://www.michigan.gov/documents/CCW_Annual_Report_
108680_7.pdf (The number of licenses issued was 31,121. The number of licenses revoked was 119.).
The grand total would be reduced by the number of revocations in each year.
227
RICHARD CORDRAY, OHIO ATTORNEY GEN., OHIO’S CONCEALED HANDGUNS LAW: 2008
ANNUAL REPORT 3 (2009), available at http://www.ohioattorneygeneral.gov/getattachment/ 74fa629f0bb9-48e1-9d81-7c27be9bbc57/Concealed-Carry-Weapons-Annual-Report.aspx.
228
OHIO REV. CODE ANN. § 2923.1213 (West 2006).
229
CORDRAY, supra note 227, at 5. There were 42 revocations in 2004, 75 revocations in 2005,
194 revocations in 2006, 171 revocations in 2007, and 157 revocations in 2008, totaling 639
revocations since the implementation of the Ohio law. Id.
226
2009]
567
report the reason for a revocation, and among the causes for a revocation
are that the license holder moved out of state, died, or no longer desired to
have the permit.230 The Ohio report does not specify how many of the 639
involved revocations were for conviction of a crime, or how many
involved misuse of a firearm.
d. Louisiana
In Louisiana, there have been 27,422 permits issued since the Shall
Issue law went into effect in 1996.231 Per capita, the figure seems
surprisingly low compared to Michigan, Minnesota, and Ohio. The
explanation is probably that Louisiana (like most states in the South and
the West) does not require a permit in order to carry a firearm in an
automobile for protection. Accordingly, people in Louisiana (unlike
people in Minnesota, Michigan, or Ohio) who only want to carry a
defensive firearm in their automobile do not need to spend the money and
time to obtain a CCW permit.
Since 1996, there have been 259 permit revocations in Louisiana.232
Prior to July 15, 2004, the state police computer did not record the reason
for a revocation. Since then, there have been 137 revocations for which
the causes are known. Only one was for the following reason: “[p]ermittee
convicted of a crime of violence.”233 There were twenty other revocations
where the cause was the permittee being charged with a bill of information
for a felony offense (but not necessarily convicted). There was one other
case in which the revocation was because the permittee was the subject of
a domestic restraining order. The Louisiana report does not specify which,
if any, crimes involved the use of a firearm. The rest of the revocations
involve situations in which the permittee became ineligible to continue to
hold the permit, but the category had nothing even theoretically to do with
the misuse of a gun.
So twenty-two of the 137 revocations (sixteen percent) described
above might have involved gun misuse. If one applies a similar proportion
to the 122 unclassified pre-2004 revocations, then one would have about
twenty more cases that might have involved gun misuse. This would be
forty-two out of 27,422 people over a twelve-year period, or slightly more
than one in one thousand permitees. If taken into account that some people
who are indicted of a crime are not found guilty, and that the large majority
of felony crimes do not involve misuse of a gun, then the number of cases
of gun misuse for Louisiana permittees would be much less than one in one
230
Id.
See CONCEALED HANDGUN PERMIT UNIT, supra note 200, at 1.
232
Id. at 14.
233
Id.
231
568
[Vol. 42:515
234
thousand.
e. Texas
In Texas, the Department of Public Safety produces an annual report
which details the total number of Texas convictions for various crimes and
the total number of such convictions among Concealed Handgun License
(“CHL”) holders. It includes burglary, violent crimes, sex offenses,
weapons offenses, and various other serious crimes, but not drug crimes or
most white collar crimes. The latest report, for 2006, shows 61,539 total
convictions of these crimes in all of Texas, with 144 attributable to CHL
holders. Thus, licensees accounted for two-tenths of less than one percent
of the Texas convictions.235 The Texas report does not indicate which
crimes were perpetrated with guns.236
As of 2006, there were 258,162 active license holders in Texas.237 The
estimated Texas population in 2006 was 23,507,783.238 This computes to a
Texas crime rate (counting the crimes in the Texas report) of 0.00262 per
capita; that is, 262 such crimes per 100,000 Texans. In contrast, the per
capita crime rate for CHL holders is 0.00054; that is, about fifty-four such
crimes per 100,000 CHL holders. So, a Texan CHL is only about twentyone percent as likely as a non-CHL holder to be convicted of one of these
crimes.
This is consistent with other research findings that compared to a CHL
holder, a male Texan in the general public is 7.9 times more likely to be
arrested for a violent crime than a male Texan CHL holder; for females,
the figure is 7.5 times more likely.239 Of the CHL holders who were
234
Id. at 10. There were also 417 license suspensions since the Louisiana law went into effect.
Of those, 211 were pre-2004, and hence the reasons for the suspensions were not recorded. Of the 216
suspensions with known reasons (that is, after July 15, 2004), none involved gun misuse. The
overwhelming reason was failure to comply with the Louisiana statute requiring a permittee to notify
the deputy secretary of public safety services if he is arrested for any cause, including for a
misdemeanor. Failure to do so results in a ninety day license suspension. See LA. REV. STAT. ANN. §
40:1379.3(R)(1) (2004); LA. ADMIN. CODE tit. 55 § 1313(B)(5) (2009).
235
REGULATORY LICENSING SERV., CONCEALED HANDGUN LICENSING BUREAU, TEX. DEP’T OF
PUB. SAFETY, CONVICTION RATES FOR CONCEALED HANDGUN LICENSE HOLDERS 4 (2009), available
at
http://www.txdps.state.tx.us/administration/crime_records/chl/ConvictionRatesReport2006.pdf.
Again, as with the Michigan report, many of these crimes appear to involve multiple charges growing
out of a single criminal act.
236
For offense names that include the use of a weapon that might be a firearm, the conviction
figures for CHL holders were as follows: Deadly Conduct Discharge Firearm, 1; Unlawful Carrying
Weapon, 24; Unlawful Carry Handgun License Holder, 10 (presumably this offense involves carrying
the licensed handgun in violation of permit restrictions; the previous offense would involve carrying
some other weapon); Aggravated Assault W/Deadly Weapon, 9. Id. at 1–3.
237
Tex. Dep’t of Pub. Safety, Regulatory Licensing Serv., Concealed Handgun Licensing Bureau,
Active License Holders and Certified Instructors, available at http://www.txdps.state.tx.us/
administration/crime_records/chl/PDF/ActLicAndInstr/ActiveLicandInstr2006.pdf.
238
Tex. Dep’t of State Health Servs., Estimated Texas Population by Area, 2006 available at
http://www.dshs.state.tx.us/chs/popdat/ST2006.shtm (last visited Aug. 31, 2009).
239
WILLIAM E. STURDEVANT, AN ANALYSIS OF THE ARREST RATE OF TEXAS CONCEALED
HANDGUN LICENSE HOLDERS AS COMPARED TO THE ARREST RATE OF THE ENTIRE TEXAS
2009]
569
arrested, 22% were convicted of the crime for which they were arrested,
32% were convicted of a lesser offense, and 46% were not convicted of
any offense.240 Of course the vast majority of the general public does not
perpetrate serious crimes. Only a tiny minority does so, and among CHL
holders, the minority is even smaller.
f. Florida
In Florida, as of July 31, 2009, there were 607,977 active concealed
handgun licensees; since October 1, 1987, there have been 1,565,251
licenses issued. Since 1987, there have been 4927 licenses revoked. Of
the revocations, 4209 were for “Crime After Licensure.” Among those,
167 were for a crime with “Firearm Utilized.”241 Thus, the per capita
firearms crime rate for licensed Floridians was 0.00027. That is 27
firearms crimes per 100,000 licensed Florida residents.
g. The Brady Center’s Claims
The Brady Center argues vehemently that people with carry licenses
are much too dangerous to be allowed on campus. However, the Brady
Center does not cite any government data, such as the data presented
above, about crime rates for licensees. Instead, the Brady Center asserts
that “thousands of people with CCW licenses have committed atrocious
acts of gun violence.”242 The only support for this claim is a citation to the
appendix of another one of its monographs, which is said to list “dozens of
criminal offenses committed by CCW licenses in Florida alone,”243 plus a
Los Angeles Times article, which identifies four violent crimes perpetrated
by Texans with licenses.244
The cross-cited Brady monograph lists the criminal offenses behind
105 Florida permit revocations in 1987–97.245 Most of these listings
provide no indication that the person whose permit was revoked had
committed any crime with a gun, let alone an “atrocious act of gun
POPULATION, 1996–1998, REVISED TO INCLUDE 1999 DATA (Sept. 1, 2000), available at
http://www.txchia.org/sturdevant.htm.
240
Id.
241
Fla. Dep’t of Agric. and Consumer Servs., Div. of Licensing, Concealed Weapon/Firearm
Summary Report: October 1, 1987–July 31, 2009, available at http://licgweb.doacs.state.fl.us/stats/cw_
monthly.html; Fla. Dep’t of Agric. and Consumer Servs., Div. of Licensing, Number of Licensees by
Type, available at http://licgweb.doacs.state.fl.us/stats/licensetypecount.html.
242
BRADY CENTER, supra note 146, at iv.
243
Id. at 34–35.
244
William C. Rempel & Richard A. Serrano, Felons Get Concealed Gun Licenses Under Bush’s
‘Tough’ Law, L.A. TIMES, Oct. 3, 2000, at A1 (noting also that more than 3000 licensees had been
arrested, although the article did not provide information about whether the arrests led to a conviction
or whether the alleged crimes had anything to do with a gun). Other research has found that forty-six
percent of Texas licensees who were arrested were not convicted of any crime. See STURDEVANT,
supra note 239.
245
See CENTER TO PREVENT HANDGUN VIOLENCE, supra note 171, at 1C–4C (noting crimes
committed by Florida licensees since the passing of Florida’s CCW law in October 1987).
570
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246
violence.”
To the contrary, only thirteen listed offenses include use of a
firearm as an element, such as “adjudication withheld on felony assault
with a deadly weapon,” “adjudication withheld on felony aggravated
assault with a firearm,” or “convicted of felony possession with intent to
distribute cocaine, possession of a firearm during drug trafficking offense.”
Indeed, for the vast majority of the offenses—such as assault or drug
sales—the absence of a firearms count would seem to indicate that a
firearm was not used. Likewise, there is no indication that a firearm was
used in the many offenses of simple possession of marijuana, passing
fraudulent checks, or other non-violent crimes. In short, the Brady
Center’s self-cited data, even if extrapolated nationally, do not come
remotely close to supporting its allegation that “thousands of people with
CCW licenses have committed atrocious acts of gun violence.”247
In the Brady Center policy paper opposing campus carry, Appendix A
asserts that a CCW permit “in no way guarantees public safety. In fact, it
can often be a license to kill.”248 Of course there are no policies that
“guarantee” public safety; the question is whether the policy improves
public safety. As for the “license to kill,” the Brady Center provides a
litany of twenty-nine cases from around the country,249 presumably the
most atrocious ones it could find.
Now, if every one of these involved a criminal homicide, these twentynine cases (out of a national CCW licensee population of about five
million) would mean that CCW licensees have a criminal homicide rate far
below that of the general population. But most of the twenty-nine most
atrocious CCW stories that the Brady Center could find do not even
involve conduct with a gun that was carried pursuant to a CCW permit.250
Of those that do, not all of them are exactly the stuff of “a license to kill.”
For example, United States Representative John Hostettler forgot to take
his handgun out of his bag when going through airport security; he pleaded
guilty to a misdemeanor.251 A former judge made the same mistake and
246
BRADY CENTER, supra note 146, at IV.
It seems that the only way that the claim that “thousands of people with CCW licenses have
committed atrocious acts of gun violence” could literally be true would be if every act of lawful selfdefense by a CCW licensee were counted as “an atrocious act of gun violence.” Regarding self-defense
as “atrocious gun violence” would not be inconsistent with Mrs. Brady’s professed view: “To me . . .
the only reason for guns in civilian hands is for sporting purposes.” Tom Jackson, Keeping the Battle
Alive, TAMPA TRIB., Oct. 21, 1993. Mr. Brady takes the same view; when asked if handgun possession
was permissible, he replied, “For target shooting, that’s okay. Get a license and go to the range. For
defense of the home, that's why we have police departments.” James Brady, In Step with: James
Brady, PARADE, June 26, 1994, at 18. (The author James Brady and the interview subject James Brady
have no relation, other than sharing the same name.)
248
249
Id. at 22–26.
250
Id.
251
See id. at 24 (citing Jason Riley, Congressman Guilty in Gun Case, LOUISVILLE COURIER-J.,
Aug. 11, 2004, at 1B).
247
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252
also pleaded guilty to a misdemeanor charge.
In Virginia, a school
teacher left a handgun locked in a car while the car was parked on school
property; he was charged with violating the Virginia law against firearms
on school property.253 And in Pennsylvania, the transportation director for
a school district was suspended for several months for, among other
charges, what the district described as “unintentionally bringing a loaded
firearm onto school property” when he left a handgun in a motorcycle
saddlebag.254
The Brady Center lists some cases in which a person was arrested after
a shooting, but almost never reports dispositions. The Brady Center thus
treats a case that was not prosecuted, because an investigation established
that the defendant acted in lawful self-defense, as equivalent to a case of
criminal homicide. For example, the Brady Center writes: “Fort
Lauderdale, Florida, January 1, 2006. Rogelio Monero [sic], 49, allegedly
shot and killed Victor Manuel Villanueva, 17, during a New Year’s
altercation as Moreno tried to stop a fight between Villanueva and a third
party. Moreno was charged with manslaughter.”255 Yet an Austin
Examiner phone call to the Fort Lauderdale Police Department revealed
that the shooting had been determined to be a justifiable homicide.256
Another Brady Center story:
Vancouver, WA, October 3, 2006. Jon W. Loveless,
unemployed for ten years, daily marijuana smoker, and father
of two children—said that he shot “until my gun was empty”
at Kenneth Eichorn [sic, Eichhorn], because Eichorn [sic] had
“a weird look” on his face. Loveless also claimed that
Eichorn [sic] held a handgun, but the Eichorn [sic] family
disputes the claim. Loveless was charged with one count of
second-degree murder.257
Missing from the Brady account is the conclusion to the story, which was
reported October 5, 2006, in the same newspaper that the Brady Center had
cited:
Jon W. Loveless was exonerated Thursday on charges of
second-degree murder and was to be released from the Clark
County Jail. . . .
252
Id. at 25.
See id. at 24 (citing Maria Glod, Va. Teacher Accused of Taking Gun to School; Loaded
Weapon Found in Locked Car, WASH. POST, Apr. 27, 2005, at B01).
254
Id. at 25.
255
Id. at 23.
256
Nemerov, supra note 202; see also Press Release, City of Fort Lauderdale Police Dep’t,
Shooting at New Year’s Eve Party Leaves One Dead (Jan. 1, 2006), available at http://ci.ftlaud.fl.us/
police/pdf/2006/january/06-01%20New%20Year%20shooting.pdf.
257
253
572
[Vol. 42:515
On Wednesday, [Senior Deputy Prosecutor] Fairgrieve
indicated he had yet to see evidence that would support a
second-degree murder charge. He said the standards police
use to arrest a suspect are lower than what prosecutors use to
file charges, and by law charges against a person in custody
must be filed within 72 hours of the suspect’s first court
appearance.258
The Brady Center monograph reports four cases of gun accidents, two
of them fatal. As for criminal homicides by people who actually had CCW
permits (not people whose permits had earlier been revoked, although the
Brady Center lists these), there is only one that was committed in a public
place (where the permit would even be relevant), and one more that was
committed at home. There are three other cases of misusing a gun against
another person (making an improper threat, or carrying it while
impersonating a police officer, and a robbery perpetrated by a police
officer’s wife).259
Are CCW permittees perfect? No, but they are much more lawabiding than the general population, as the government data indicate.
Indeed, “[e]ven off-duty police officers in Florida were convicted of
violent crimes at a higher rate than permit-holders.”260 So, should off-duty
police be allowed to carry concealed firearms when on school property? If
the answer is “No, because they might commit a violent crime against a
teacher or student,” then one could, with logical consistency, also oppose
campus carry by CCW licensees (although the fear of licensees would have
a weaker empirical basis than the fear of off-duty police). On the other
hand, if one thinks that the potential anti-crime benefit of allowing off-duty
police to carry on campuses outweighs the (miniscule) risk that an off-duty
officer might commit a crime, then one would have even less reason to be
afraid of a CCW licensee.
But what is it about permitees, although generally less dangerous than
off-duty police, that makes others fear that they will become much more
dangerous in a campus environment? That is the topic of the following
sections.
2. Faculty Members Are Very Dangerous
As the previous subsection demonstrates, the Brady Center works
assiduously to collect information about every possible misdeed by people
with concealed handgun licenses. One may be fairly confident that if any
258
Loveless Exonerated in CB Shooting, CLARK COUNTY COLUMBIAN (Vancouver, Wash.), Oct.
5, 2006.
259
BRADY CENTER, supra note 146, at 22–23, 25.
John R. Lott, Jr., Gun Control Advocates’ Credibility on Line, http://johnrlott.tripod.com/
credibility.html (last visited Sept. 1, 2009).
260
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instance of misuse was reported in a newspaper, the Brady Center would
know about it, and would not be reticent about publicizing it. Yet in a
forty-four page paper composed of frantic warnings about what licensed
carry permitees might do on campus, the paper conspicuously lacks any
report of anything improper that a permittee on campus has done.261
In Utah, a state with a population of over three million, any licensee
(not just a teacher or an adult student) has been allowed to carry at
kindergartens, grade schools, and universities since 1995.262 In the Brady
Center report, there is not one example of the slightest misdeed by any of
these people. Nor is there any notation of misdeed by individuals at the
large campus of Colorado State University, or the three campuses of
Virginia’s Blue Ridge colleges, who are licensed to carry. From the arctic
islands of Norway, to the deserts of Israel (a quarter-century of
experience), to the jungles of southern Thailand (five years of experience),
one can see very diverse real-world experiments with teachers and students
being required or strongly encouraged to carry guns. And neither the
Brady Center nor any other anti-carry organization has brought forward
even one example of gun misuse in those countries.
In this and the following two subsections, this Article examines the
claims of the Brady Center and like-minded people that licensed carry on
campuses would lead to catastrophe. Although the arguments will be
addressed in detail, it is important to remember a larger point: these
arguments are purely speculative. The advocates who demand a campus
ban on licensed carry rely on sheer conjecture, while the advocates of
campus carry can point to extensive real-world experience in which not an
iota of the malicious conjecture has proven valid.
A review of academic-linked homicides over the last twenty years
revealed a few cases in which a professor had murdered someone on
campus.263 Interestingly, there was only one case (at the University of
Arkansas, by a graduate student) in which a killing was perpetrated by
somebody with teaching responsibility in the humanities.264
Some people fear that an angry teacher might shoot a student. But if
parents believe that their children’s teachers might kill their child if they
had a weapon, then why would those parents leave their child in the
custody of those teachers for many hours a week?
Gallant: “Is your little daughter Brittany going to school
now?”
261
See generally BRADY CENTER, supra note 146.
See supra text accompanying notes 76–81.
263
See Wood, supra note 165, at 277–82 (discussing the prevalence of student- versus professorcaused murders on college campuses). “[A]ccounts of faculty members resorting to deadly force are
relatively rare.” Id. at 281.
264
Id. at 286.
262
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[Vol. 42:515
Goofus: “Oh yes, she really likes her classmates, but she
seems afraid of her teacher Ms. Springelschnitz.”
Gallant: “Do you like Ms. Springelschnitz?”
Goofus: “Hmmm. I think that if Ms. Springelschnitz had a
gun, she might murder Brittany. Or at least she would
threaten Brittany with the gun. But as long as the school
district prohibits teachers from having guns, I don’t have a
care in the world.”
If parents sincerely believe that the most important reason a child’s
teacher has not murdered their children yet is that the district policy forbids
the teacher to have a gun at school, those parents should immediately
transfer their children to a different school. But realistically, although
there might be too many mediocre teachers in some schools, American
teachers are not borderline killers.
Other people worry that a student might steal a teacher’s gun. Putting
aside the fact that it is not that difficult for a determined person to get a gun
somewhere else (e.g., stealing from someone’s home), the risk could be
addressed through policies requiring that the gun always be carried on the
teacher’s body or secured in another manner.265
In 2006, the President of the Utah Education Association, Kim
Campbell, said, “I would be opposed to guns in school, period. . . . No
matter where I would put a gun in a classroom, a class full of little people
would find it. And if it were locked up for safety, there would be no
chance to get it.”266 Perhaps Ms. Campbell is accurate in her selfassessment of her inability to prevent her students from getting hold of
anything she brings into the classroom, even something that she is wearing
concealed underneath her clothing. Presumably, she never brings her own
medicines into the classroom because her students would make off with
her pills and liquids. However, teachers throughout Utah—including,
almost certainly, members of Ms. Campbell’s union—have been carrying
guns in K–12 classrooms since 1995, and there has never been a known
incident of a student taking a teacher’s gun.267 Ms. Campbell’s strong lack
265
For example, guns are often stored in quick-lock safes, which can be opened in several
seconds. Some of the safes use a biometric identifier, usually a fingerprint scan. The trade-off is that
the gun would not be instantly available if an attack began in that particular room, but the gun could be
retrieved if an attack began elsewhere in the building. As for the constitutionality of requiring that a
gun be locked up, see infra note 291 and accompanying text.
266
Caitlin A. Johnson, After Shootings, Some Teachers Get Guns, CBS NEWS, Oct. 16,
2006, http://www.cbsnews.com/stories/2006/10/17/earlyshow/main2096721.shtml?source=RSSattr=H
OME_2096721.
267
Teachers do sometimes lose keys or cell phones. But unlike classroom keys or cell phones, a
concealed firearm is typically worn in a special holster concealed on one’s body. And unlike keys and
cell phones, a person does not remove a concealed handgun for ordinary use several times a day. If a
teacher puts on a concealed handgun in a concealed holster at 7 a.m., when she is getting ready to go to
2009]
575
of self-confidence in her own abilities to keep control of the items in her
personal possession does provide an example about why the government
should not mandate that a teacher be armed.
During the Nevada debate over allowing campus carry by K–12
teachers and college professors who completed a background check and
training equivalent to that of a reserve police officer, the Las Vegas Sun
highlighted the following concern:
[W]ould a classroom teacher who is trained as an officer be
allowed to use more aggressive tactics in controlling an
unruly student? And if a situation arises in another part of
the school that requires the attention of a teacher-officer, does
that teacher simply leave his class unattended? . . . And in
addition to these concerns, there is one very real consequence
of having teachers double as officers: Children as young as 5
or 6 could be in classrooms where loaded guns are present.268
To answer these questions, no, a teacher would not be allowed to use
unusually forceful tactics on unruly students; the police are taught not to
use chokeholds or to draw their weapons unless there is a public safety
need to do so. Teachers trained like police officers would be trained to the
same standard of conduct. Next, yes, if there is an active shooter in the
north part of the school building, the teacher in the south building might
leave her classroom, confront the shooter in the north, and thereby leave
her students unattended; this result is based on the premise that being
unattended while being defended from a homicidal maniac is better than
being attended while being murdered. And finally, yes, children as young
as five or six would be in classrooms where loaded guns are present. Half
of the children in America already live in homes where guns are present.
If a gun-phobic parent cannot handle the thought of his child being in a
classroom with an armed defender, the parent could be offered the option
of transfer to another class.
The Brady Center has another fear: “In one recent school year, 2,143
elementary or secondary school students were expelled for bringing or
possessing a firearm at school. In how many of those instances would an
armed teacher have been tempted to shoot the student because of a
perception of danger?”269 Again, one can look to evidence. From the
1996–97 school year through the 2003–04 school year, there were 428
instances in which students in Utah have been expelled for possessing a
school, she is not going to misplace the gun when she uses her keys to open the gymnasium at 9 a.m.,
or when she receives a cell phone call from her husband during lunch.
268
Editorial, Teachers Packing Heat?, LAS VEGAS SUN, Aug. 15, 2007, http://www.lasvegassun.
com/news/2007/aug/15/editorial-teachers-packing-heat.
269
576
[Vol. 42:515
270
firearm at public K–12 school.
And since 1995, almost every public
school teacher in Utah has had the right to obtain a concealed carry permit,
and to use that permit on campus. There is no known example of any Utah
teacher drawing a gun on, let alone shooting, any of the 428 students who
illegally brought a firearm to school.
The Brady Center also asks, “And what about fist or knife fights that
occur at schools? Should teachers be drawing their guns and trying to
intercede?”271 Indeed, we would want a teacher to intercede with a firearm
under the same circumstances in which we would want a person with a
CCW permit, or police officer, or anyone else lawfully possessing a
firearm, to act: according to the state law regarding the use of deadly force.
In most states, that would mean that deadly force would be allowed to stop
a knife fight or a brawl if the teacher reasonably believes that the victim is
in imminent danger of death or serious bodily injury and the teacher also
reasonably believes that no lesser force will suffice to save the victim.
3. Adult College and Graduate Students Are Very Dangerous
Before even considering the arguments against students possessing
arms on campus, let us remember that such arguments are no reason to
prohibit middle-aged and older faculty from having guns. The desire to
prevent twenty-two-year-olds from being armed is no reason to impose
disarmament on fifty-year-olds.
Second, in only eight states are concealed carry permits issued to
eighteen-year-olds.272 Most states impose an age limit of twenty-one years
old or greater. The experience of the six states does not indicate that
licensed, trained eighteen-year-olds are incapable of bearing arms
responsibly. After all, they bear arms with enormous responsibility if they
enlist in the United States armed forces.
a. The Brady Center Assertions
If all you knew about college students was what the Brady Center told
you, you might think that the safest thing to do would be to immediately
surround them all with barbed wire and convert them into penal
institutions. The Center warns about “introducing guns among bingedrinking, drug-using, suicide-contemplating, hormone-raging college
270
KAREN GRAY-ADAMS, U.S. DEP’T OF EDUC., REPORT ON THE IMPLEMENTATION OF THE GUNFREE SCHOOLS ACT IN THE STATES AND OUTLYING AREAS SCHOOL YEAR 2003–04, at 12, tbl.5 (2007),
available at http://www.ed.gov/about/reports/annual/gfsa/gfsa03-04rpt.pdf. In Utah, as in other states,
many of the expulsions were modified to a lesser punishment. Id. at 13, tbl.6.
271
272
See CAL. PENAL CODE § 12026(a) (West 2009); DEL. CODE ANN. tit. 11 § 1441 (2007); IND.
CODE ANN. § 35-47-2-3(g) (West 2007); IOWA CODE ANN. § 724.8 (West 2003); ME. REV. STAT. ANN.
tit. 25 § 2003 (2008); MD. CODE ANN., Pub. Safety § 5-306 (West 2003); MONT. CODE ANN. § 45-8321 (2009); S.D. CODIFIED LAWS §§ 23-7-7.1, 23-7-44 (2009).
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273
students.”
The Center thus predicts “[g]reater potential for student-onstudent and student-on-faculty violence.”274 According to the Brady
Center, colleges face the imminent risk of being forced by “the gun lobby”
to accept “students bring[ing] their AK-47 assault rifles with them to show
off while guzzling beer at college keggers.”275 The scenario is ludicrous.
First of all, the AK-47 is an automatic combat rifle—a type of machine
gun. Although the gun is ubiquitous in some nations (e.g., Yemen and
Iraq), there are no more than a few hundred in the United States, many of
them in museums. To purchase one would cost many thousands of dollars,
and require a licensing process (pursuant to the National Firearms Act of
1934) involving signed permission from one’s local police chief or sheriff,
plus fingerprinting, a $200 tax, and months of paperwork.276 One can
assume that few college students have the means to purchase an AK-47.277
Second, a “concealed carry permit” is a permit to carry a concealed
weapon. A rifle of any type is too large to be carried concealed. Third, if
we somehow imagine that an extremely wealthy student bought an actual
AK-47, and that this super-rich student were also super-sized, so that the
rifle could in some ingenious manner be concealed under his clothing, then
“showing off” the AK-47 at the kegger would be a violation of the carry
permit terms, and the permit could be revoked. Moreover, many states
prohibit the possession of any firearm while under the influence of
alcohol.278
Yet remember, the Brady Campaign is the most influential anti-gun
lobby in the United States. Its absurd and fantastic claims (e.g., that there
are thousands of atrocious gun crimes perpetrated by CCW licensees and
that students will carry AK-47 rifles to keggers) are the claims made to
terrify legislators and administrators against allowing licensed adults to
exercise their rights on campus. The Brady Campaign also mistakenly
describes the law in Utah, claiming that it provides for unlimited gun
possession on public college and university campuses, and authorizes
seventeen-year-olds to stockpile rifles in dorm rooms.279 To the contrary,
the law applies solely to persons carrying handguns pursuant to a permit
273
Id. at 5.
275
Id. at V.
276
See 26 U.S.C. §§ 5811(a)–(b), 5812(a)–(b) (2006); see also U.S. Dep’t of Justice, Bureau of
Alcohol, Tobacco, Firearms and Explosives, Application for Tax Paid Transfer and Registration of
Firearm, ATF Form 4 (as revised Mar. 2006) (requiring certification by a “Chief Law Enforcement
Officer”).
277
The Brady Campaign works energetically to ban so-called “assault weapons,” some of which
look like an AK-47. But none of these guns are machine guns; they just fire one bullet when the trigger
is pressed, as does every other standard gun.
278
See, e.g., S.D. CODIFIED LAWS § 22-14-7 (2009) (criminalizing possession of a loaded firearm
while intoxicated as a misdemeanor); MO. REV. STAT. § 571.070 (2000) (prohibiting habitually
intoxicated persons from possessing firearms).
279
274
578
[Vol. 42:515
issued by the Utah State Police. Utah law requires that such a person be at
least twenty-one years old.
The Brady Center tells us (on the basis of a citation that does not
support the claim) that ages eighteen to twenty-four are the peak years for
the commission of “violent gun crimes, including homicides.”280 It is all
the more notable then, that in the Brady Center’s Appendix, in this very
same report listing the various crimes it can find committed by CCW
licensees, the Center cannot list a single violent gun crime committed by
anyone in the eighteen to twenty-four age bracket.281 Again, the evidence
shows that CCW permitees are a group whose gun misuse is microscopic,
and far below the rate of gun misuse in the general population.
b. Scholarly Research
A study in the Journal of American College Health, by Matthew Miller
and two colleagues, collected mail-in surveys from slightly less than
11,000 undergraduates at 119 colleges and found that 4.3% reported at
some time having had a working firearm at college.282 The study did not
ask about where the gun was possessed—such as in a dormitory, in a
campus police storage locker (as many colleges allow and encourage), in
an off-campus apartment, or in an automobile. Nor did the study attempt
to distinguish between students whose gun possession was legal (e.g., a
hunter who checked his rifle with the campus police) from those whose
possession was illegal (e.g., a student with an illegal handgun who carried
the handgun for confrontations with rival gangs at nightclubs). The study
found that, in general, gun owners were more likely to engage in various
misdeeds than non-owners.283 However, the study’s findings were
280
Id. at 6 (citing BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUST., SOURCEBOOK OF
CRIMINAL JUSTICE STATISTICS ONLINE (2005), available at http://www.albany.edu/sourcebook/pdf/
t472005.pdf). However, the cited table (of arrests in 2005) provides no data for violent gun crime. The
only gun-related category is “Weapons; carrying, possessing, etc.” For these regulatory offenses, the
peak years are actually 15–21, with persons aged 15, 16, or 17 having much higher numbers of arrests
than persons 22, 23, or 24. As for the four major categories of violent crime (for which the cited table
does not include any subcategory indicating weapon use), the raw arrest data for homicide is higher for
ages 18–24 than for other years. For forcible rape, 17-year-olds were arrested more often than persons
aged 23 or 24. For robbery, persons aged 15, 16, or 17 were arrested more often than persons aged 21,
22, 23, or 24. For aggravated assault, the peak years were ages 18–24. The data are raw arrests; the
cited table provides no information about arrest rates for particular ages, which would take into account
the number of people in the age group in 2005.
281
BRADY CENTER, supra note 146, at 26. There is one crime by an Arizona citizen who
reportedly said (a year before the crime) that he had an Arizona CCW permit, but further investigation
found no evidence to substantiate this assertion.
282
Matthew Miller et al., Guns and Gun Threats at College, 51 J. AM. C. HEALTH 57, 57–59
(2002). The study is a re-run of a previous similar study: Matthew Miller et al., Guns at College, 48 J.
AM. C. HEALTH 7 (1999). For similar studies, see Philip W. Meilman et al., Analysis of Weapon
Carrying Among College Students, by Region and Institution Type, 46 J. AM. C. HEALTH 291 (1998);
Cheryl A. Presley et al., Weapon Carrying and Substance Abuse Among College Students, 46 J. AM. C.
HEALTH 3 (1997).
283
See Miller et al., Guns and Gun Threats at College, supra note 282, at 62–63.
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579
presented in a manner which exaggerated problem behaviors. For
example, there are data which purport to show that students who possessed
firearms for protection are more likely to “binge and drive” than are other
students.284 But this category captures people whose alcohol consumption
and driving may have been entirely lawful and responsible, because it
defines “binge” as five drinks for a male, or four for a female, regardless of
circumstances. Having five shots of tequila on an empty stomach in fifteen
minutes, and then going driving, certainly means that one is driving while
intoxicated or impaired. Having five light beers while watching a football
double-header (about six hours) with some friends, and while eating a
pizza and chips, will leave a person well below the legal limits against
driving while impaired. For a woman, the supposed “binge” drinking level
is set at four drinks—meaning that a woman who attends a four-hour
Passover Seder, and drinks the ritual four cups of wine, along with a large
festive meal, and then drives home (entirely within the legal limits for
blood alcohol content), is labeled by the study as someone who drives after
binge drinking. The Miller study makes no distinction.
Likewise, the finding that students who own guns for protection may
be more likely to have smoked at least one cigarette in the last thirty
days285 is not particularly important for a public policy determination.
Smoking cigarettes is legal, and unless one is going to argue that defensive
gun ownership causes smoking (this would be a “smoking gun theory”),
then the finding may allow some public health tut-tutting about the kind of
people who own guns, but nothing else.
Notably, the study collected no evidence about gun misuse, and the
authors acknowledge that their study “contains no data . . . on whether
guns at college cause or prevent problems.”286 Most importantly, the study
did not inquire whether the gun possessors had a valid CCW permit.
Accordingly, it would be dangerous to draw conclusions about college
students with CCW permits (who would be over twenty-one years old in
most states) based on a study which makes no distinction between lawful
and unlawful gun possession, and which, as a random sample of
undergraduates, included a large number who were under twenty-one. We
know that CCW permit holders are much more law-abiding than the
general population.287
c. Does Going to College Make Adult Students More
Dangerous?
We know that the rate of gun crime perpetrated by CCW licensees is
284
See id. at 60 tbl.1.
See id.
286
Miller et al., Guns and Gun Threats at College, supra note 282, at 64.
287
See Lott, supra note 260; see also supra at notes 218–41.
285
580
[Vol. 42:515
close to zero. Scott Lewis, a board member of SCCC, argues that “under
our proposal the same trained, licensed individuals who are not getting
drunk and shooting people off of college campuses are the same trained
and licensed individuals who are not going to be getting drunk and
shooting people on college campuses.”288 The empirical data are
indisputable that when twenty-one-year-olds (in most states) or eighteenyear-olds (in a half-dozen states), exercise their right to licensed carry, they
do not cause a crime problem.
The logical question, then, is whether the circumstances of campus
carry make licensed carriers unusually likely to misuse firearms. After all,
college campuses, unlike other places, are places where a large number of
young adults congregate, and perhaps young adults are more likely to
perpetrate crimes when they are in the company of large numbers of
persons in their age bracket. The experience of Utah, Colorado, and
Virginia, however, provides no evidence to support this hypothesis.
Perhaps young adults in the company of other young adults are more likely
to drink lots of alcohol, or to engage in promiscuous sex. But they are not
more likely to perpetrate gun crimes.
If the primary concern is about students drinking, it should be noted
that these days, most drinking occurs off-campus, where the college has no
power to prevent licensed carry. To the extent that young adults with
concealed carry permits do drink, they are required to comply with existing
state laws which forbid possession of any firearm while under the
influence of alcohol. Some states even forbid carrying a licensed firearm
into a restaurant where alcohol is served, even if the person is merely
having dinner, and not ordering a drink.
On-campus drinking tends to take place in dormitories, not in
classrooms. Accordingly, concerns about drinking could be dealt with by
adopting the Colorado State University policy: allow licensed carry on
campus, but forbid gun possession or carrying in dormitories.289
d. Stolen Guns
When CCW permitees are allowed to store their licensed guns in a
dormitory room, do the dormitories turn into shopping malls for gun
thieves, as the Brady Center warns?290 The experience at Utah’s nine
public institutions of higher education provides no support for this
hypothesis. However, it would be reasonable for colleges to require that
guns not be left in dormitories when vacant, such as during Christmas
vacation. A college might also require any gun in a dormitory be stored in
288
Suzanne Smalley, More Guns on Campus, NEWSWEEK, Feb. 15, 2008, http://www.newsweek.
com/id/112174 (web exclusive).
289
Telephone interview, supra note 96.
290
BRADY CENTER, supra note 146, at 8–9.
2009]
581
291
a secured locked box, small safe, or similar unit.
If these measures are
considered insufficient, then the answer would be to prohibit gun
possession in dormitories, not to forbid professors from having licensed
guns locked in their offices, or adult graduate students from having
licensed guns locked in their automobiles.
e. Sporting Events
It is also argued that if campus carry is legal, students, alumni, and
other fans will kill each other at sporting events, especially at important
football games.292 Put aside the fact that throughout most of the history of
scholastic athletic competition in the United States, there have been no
laws against the possession of defensive arms, and no problem of extensive
violence perpetrated by the fans. And let us further ignore the argument
that America’s culture of responsible individualism, of which
responsibility for self-defense is an important component, produces a more
mature, self-restrained citizenry than is produced by the nanny-state, gunbanning culture of England, and its attendant soccer hooligans and yobs.
The simple solution is to ban guns at sporting events, at least events
with large crowds where there are an ample number of armed security
guards and police, who could immediately (not several minutes later) take
action against a killer. Concerns about the football game on Saturday
afternoon can be addressed in a narrowly tailored fashion, without
eliminating the self-defense rights of the professor working late on a
Tuesday night.
D. Academic Freedom
The final major argument against campus carry is that it would infringe
upon academic freedom. One prong of the argument is that one part of the
college’s own communication of ideas is the prohibition of defensive
firearms possession by anyone on campus. This argument was discussed
291
Cf. District of Columbia v. Heller, 128 S.Ct. 2783, 2822 (2008) (invalidating gun lock law in
District of Columbia). In October 2008, the New York Supreme Court (the general trial court in New
York) in Suffolk County ruled that the New York rule requiring that licensed handguns be locked up
when not in use was an unconstitutional violation of Heller. See Colaiacovo v. Dormer, No. 08-020230
(N.Y. Sup. Ct. Oct. 30, 2008), available at http://www.nysrpa.org/files/colaiacovo_v_dormer.pdf. A
district court in Massachusetts came to a similar conclusion. See Commonwealth v. Bolduc, No. 0825
CR 2026 (Mass. Dist. Ct. Feb. 19, 2009), available at http://volokh.com/files/bolduc.pdf. The District
Attorney agreed that the district court was correct, and did not appeal. See David E. Frank, It’s (Not) a
Lock: Massachusetts Judges Split over Supreme Court Gun Ruling, MASS. LAWYERS WEEKLY, Mar.
16, 2009 (noting that another district court in the state had reached a contrary result).
Hypothesizing that Heller eventually leads to a general ban on gun-lock laws, a requirement that
guns in dormitories (or teacher guns in classrooms) be locked up might still be constitutional under
Heller’s “sensitive places” exception. See supra note 24 and accompanying text.
292
Philip Rawls, Alabama Senate Committee Blocks Campus Gun Bills, BIRMINGHAM NEWS,
Mar. 26, 2008, http://blog.al.com/spotnews/2008/03/Alabama_senate_committee_block.html (reporting
on Gordon Stone, Executive Director of the Alabama Higher Education Partnership, worrying about
potential violence at the Alabama-Auburn game).
582
[Vol. 42:515
293
in Part II.
The more conventional argument about academic freedom is that
persons with licensed carry permits will intimidate other people on campus
from speaking freely. The Brady Center forecasts that “allowing students
to possess and use firearms on college campuses will likely breed fear and
paranoia.”294 Given the Brady Center’s frantic and factually inaccurate
efforts to promote fear and paranoia about CCW licensees, no one can
charge that the organization lacks chutzpah.
University of Kentucky engineering professor Kaveh Tagavi worries
that licensed carry would destroy trust between faculty and students, and
that students might shoot professors after an intense discussion of a
controversial topic.295 But if University of Kentucky students and
professors are already worried that the only reason that they are not
shooting each other is that they are not allowed to have guns, then there is
no trust at the present.
“No matter how hard you try, someone is going to see that concealed
weapon,” claims Jim Spice, campus police chief at the University of
Colorado at Colorado Springs. Then, “[t]hey no longer feel free to express
whatever thought, whatever topic they happen to be debating at the
time.”296 Yet, if one drives just a few hours north on Interstate 25 to
Colorado State University, where licensed carry is allowed in classrooms,
there has been no evidence of any diminution of academic freedom. Nor
are there reports of any impairment of academic freedom at the nine public
colleges and universities in Utah, at the three Blue Ridge campuses in
Virginia, or in Israel, Thailand, or Norway.
The only reported conflicts between campus carry and academic
freedom involve people being persecuted for simply expressing support for
the idea of campus carry. For example, Hamline University suspended
student Troy Scheffler and ordered him to have a mental health evaluation
because, after Virginia Tech, he wrote the administration an e-mail
criticizing the school’s policy against licensed guns on campus. The freespeech academic group Foundation for Individual Rights in Education
(“FIRE”) took up this case.297 Another example: in October 2008, at
293
See discussion supra note 81–90 and accompanying text (discussing University of Utah’s
“academic freedom” argument in attempting to ban handguns).
294
295
See Art Jester & Ryan Alessi, Campus Gun Bill Stirs Furor, LEXINGTON HERALD-LEADER,
Jan. 17, 2008, at A1; see also Van Zandt, supra note 211 (“Students need to fight for their ideas and
beliefs, ones honed over the blazing fires of verbal discourse and debate. But their fight should be with
words, not bullets.”).
296
Laura Forbes, UCCS Students Want Concealed Carry Permits, KXRM FOX 21 (Colorado
Springs, Colo.), Mar. 31, 2008, http://www.coloradoconnection.com/news/news_story.aspx?id=
115314.
297
See Student Advocates Gun Rights, Gets Suspended, WORLDNETDAILY, Oct. 11, 2007,
http://www.wm.com/index.php?fa=PAGE.printable&pageId=43961.
2009]
583
Central Connecticut State University, John Wahlberg and two classmates
made a presentation in Professor Paula Anderson’s communication class.
Assigned to discuss a “relevant issue in the media,” the three students
argued that fewer people at Virginia Tech would have died if the victims
were armed.298 Professor Anderson reported Wahlberg to the police, who
summoned him to the police station that night. After interrogating him
about where he keeps his registered firearms (in a safe in his home twenty
miles off-campus), the police let him go. Robert Shibley, vice president of
FIRE, said, “If you go after students for just discussing an idea, that goes
against everything a university is supposed to stand for.”299
After the Columbine murders in 1999, a public school superintendent
in Ohio was forced to resign because he had suggested that Columbinestyle massacres might be avoided if teachers were allowed to possess arms.
He even had to fight off efforts to strip him of his earned pension because
of the claim that his public expression of an idea constituted gross
professional misconduct.300
VI. CONCLUSION
Sometimes, a campus gun ban may be accompanied by a sign
proclaiming the area as a “Weapon-free and Violence-free School Safety
Zone.”301 But despite what the sign proclaims, the “weapons-free” part
really means “free of weapons carried by law-abiding persons.” And
unfortunately, the “violence-free” declaration may be a cruel hoax. A
Canadian history professor observes that “[t]he fundamental problem with
making a campus legally ‘gun-free’ is that the rule cannot be enforced
unless the campus is surrounded by high walls with only a limited number
of entrances, all of them guarded and equipped with metal detectors.”302
Gun prohibition on campuses is a deadly policy, and the number of
victims of that policy is already far too high. The case against licensed
carry on campus is based on conjecture and far-fetched hypotheticals. The
case in favor of licensed carry is based on the empirical experience of the
places where licensed campus carry has already been implemented, and on
the experience of forty states where licensed, trained adults are allowed to
carry firearms for lawful protection almost everywhere except on campus.
In designing a campus carry policy, legislators and educational
administrators are not required to copy the Utah example, under which any
298
Maxim Lott, Professor Takes Heat for Calling Cops on Student Who Discussed Guns in Class,
FOX NEWS, Mar. 4, 2009, http://www.foxnews.com/story/0,2933,504524,00.html.
299
Id.
300
See John R. Lott, Jr., Creating Hysteria over Guns, WASH. TIMES, Jan. 30, 2000, at B4
(including Ohio example among other cases of anti-gun hysteria in schools).
301
E.g., GA. CODE ANN. § 16-11-127.1(g) (2008).
302
Kenneth H.W. Hilborn, Packing Heat, 21 ACAD. QUEST. 136, 136 (2008).
584
[Vol. 42:515
person twenty-one years or older may, after being issued a license to carry
a concealed handgun, carry that handgun on any public school property, or
possess it in a university dormitory. Although that policy has proven
harmless in Utah, decision makers in other states could adopt more
restrictive policies, such as forbidding guns in dormitories, or allowing
only teachers and professors, but not adult students, to carry. Or even, as
was proposed in Nevada, allowing licensed carry only by teachers and
professors who underwent the same training and background check
required for police officers.
Any change would be an important step toward greater safety.
Campuses should be safe zones for students and teachers—not for
predators who are legally guaranteed that their victims will be defenseless.
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Essay
Demosprudence, Interactive Federalism, and Twenty
Years of Sheff v. O’Neill
JUSTIN R. LONG
Professor Lani Guinier and others have recently developed a theory
called “demosprudence” that explains the democracy-enhancing potential
of certain types of U.S. Supreme Court dissents. Separately, state
constitutionalists have described state constitutions’ capacity to offer a
base of resistance against the U.S. Supreme Court’s narrow conception of
individual rights. Applying these two seemingly unrelated theories to
school desegregation litigation in Connecticut and to same-sex marriage
litigation in Iowa, this Essay suggests that certain state constitutional
decisions might function like U.S. Supreme Court dissents to enhance
democratic activism. In this way, interactive federalism might usefully
serve as a category of demosprudence.
585
ESSAY CONTENTS
I. INTRODUCTION ................................................................................... 587
II. DEMOSPRUDENCE ............................................................................. 588
III. INTERACTIVE FEDERALISM ........................................................... 592
IV. CAN STATE CONSTITUTIONAL DECISIONS WORK
AS FEDERAL DEMOSPRUDENTIAL DISSENTS?.......................... 595
A. CAN STATE CONSTITUTIONAL DECISIONS WORK
AS FEDERAL CONSTITUTIONALISM? ................................................ 597
B. CAN STATE CONSTITUTIONAL DECISIONS WORK
AS FEDERAL DISSENTS? .................................................................. 599
C. CAN STATE CONSTITUTIONAL DECISIONS MEET THE
DEMOSPRUDENCE CRITERIA? ......................................................... 601
V. SHEFF V. O’NEILL AND SCHOOL DESEGREGATION ................... 601
VI. VARNUM AND SAME-SEX MARRIAGE .......................................... 606
VII. CONCLUSION .................................................................................... 608
Demosprudence, Interactive Federalism, and Twenty
Years of Sheff v. O’Neill
JUSTIN R. LONG*
I. INTRODUCTION
Twenty years ago, civil rights lawyers sued state officials on behalf of
school children in Hartford, Connecticut, complaining that the nearly allwhite suburban schools and nearly all-minority city schools violated the
state constitution. The lawyers sued in court because state politicians
seemed not to be responding to the de facto segregation. Rather than fight
what looked like a futile political campaign, a lawsuit could compel the
desegregation Hartford children needed. The lawyers sued under the state
constitution because they knew that the U.S. Supreme Court was steadily
withdrawing the courts from their historic role in school desegregation.
The Connecticut Constitution and courts could avoid this federal
retrenchment. In this way, both law and politics were causes of the
landmark Sheff v. O’Neill1 case, and both legal and political change were
its goals. But constitutional theorists, however, have struggled with how to
reconcile law and politics in a principled fashion.2 If our nation is a
democracy, what legitimacy can there be for counter-majoritarian law? If
we are subject to the rule of law, what room is left for popular will?
Lani Guinier’s recently developed idea of “demosprudence” offers a
new way of thinking about the law/politics divide. Guinier argues that
certain kinds of judicial decisions, and dissents in particular, can inspire
popular responses in the form of social and political activism. These
political activities can, in turn, affect judges’ understanding of fundamental
constitutional norms. In this way, there is an ongoing national debate
about the meaning of the most important values embedded in the federal
Constitution. U.S. Supreme Court opinions are not merely politics by
another means, nor are politics merely parallel to legal interpretation.
Instead, both judicial and social activity together comprise a broader
conversation about the interpretation of the core constitutional values
*
Visiting Assistant Professor, University of Connecticut School of Law. A.B., Harvard College;
J.D., University of Pennsylvania School of Law. I thank Michael Fischl, Rick Kay, Bob Williams, the
participants in the University of Connecticut School of Law faculty workshop series, and Ariana
Silverman for helpful comments.
1
678 A.2d 1267, 1289 (Conn. 1996) (declaring unconstitutional state statutes responsible for de
facto school segregation).
2
See, e.g., Larry D. Kramer, Professor & Dean of Stanford Law School, “The Interest of the
Man”: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy, in 41
VAL. U. L. REV. 697, 699–700 (2006) (describing the difficulty and importance of distinguishing
between law and politics).
588
[Vol. 42:585
3
underlying our democracy.
Meanwhile, Paul Kahn,4 James Gardner,5 Robert Schapiro,6 and other
state constitutional scholars7 have persuasively argued that state
constitutional jurisprudence can usefully function as a site of resistance to
federal constitutional interpretations, a theory known as “interactive
federalism.”8 If the U.S. Supreme Court fails to protect such rights as
privacy, marriage equality, or public education under the federal
Constitution, state high courts may, and often do, provide a competing
constitutional vision that does protect those liberties. Although the states’
more expansive protection of civil rights formally derives from the state
constitutions, interactive federalism suggests that the true debate
underlying these decisions is a dispute about the basic values we share as
Americans. State constitutionalism, in this view, can and should function
as a legal space for contesting the dominant federal interpretation of
national norms. Furthermore, state constitutional jurisprudence can
galvanize a popular political response that leads either to changes in
federal jurisprudence or to new legislative action.9
This Essay suggests a previously overlooked link between the theories
of demosprudence and interactive federalism. Using the example of Sheff
v. O’Neill, this Essay asks, “Can state constitutional decisions function as
demosprudential dissents?” Preliminary analysis of the Sheff litigation and
same-sex marriage litigation suggests that scholars of demosprudence and
state constitutionalism have much to learn from each other. Imagining
state constitutional decisions as demosprudential dissents offers a new
perspective on federal and state constitutional theory, and potentially offers
a democracy-enhancing justification for American federalism.
II. DEMOSPRUDENCE
Professor Guinier’s far-reaching insight is that U.S. Supreme Court
dissents can be effective beyond merely persuading some as-yet unseated
3
See Lani Guinier, Foreword: Demosprudence Through Dissent, 122 HARV. L. REV. 4, 15–18,
58–59 (2008) (discussing how dissenting opinions are illustrative of this theory).
4
See Paul Kahn, Interpretation and Authority in State Constitutionalism, 106 HARV. L. REV.
1147, 1148 (1993) (rejecting a separate-spheres approach to federalism).
5
See generally JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE
OF FUNCTION IN A FEDERAL SYSTEM (Univ. of Chi. Press 2005).
6
See generally ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION OF
FUNDAMENTAL RIGHTS (Univ. of Chi. Press 2009); Robert A. Schapiro, Toward a Theory of
Interactive Federalism, 91 IOWA L. REV. 243 (2005) (providing a useful background and historical
evaluation of this philosophy).
7
See, e.g., Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial
Federalism, 28 HASTINGS CONST. L.Q. 93, 95 (2000) (describing state constitutional interpretation as
legitimately reactive to federal constitutional law).
8
Id.
9
E.g., id. at 298.
2009]
DEMOSPRUDENCE, INTERACTIVE FEDERALISM
589
Court majority to overturn the disfavored decision in the misty future.10
Rather, as Robert Williams pointed out in 1984, the Justices’ dissents can,
and sometimes do, address contemporary political forces.11 By inspiring,
comforting, and teaching common people affected by the Court’s opinion,
dissents can reach past legal elites to provoke democratic engagement and
change.12
Guinier identifies three defining characteristics of the demosprudential
dissent: substantively, the dissent is about a basic issue of democracy;
stylistically, the dissent is written with a tone and structure that address a
broader audience than the legal in-crowd; and procedurally, the dissent
challenges that broader audience to exercise popular sovereignty by
counteracting the majority opinion.13 Guinier points out that part of the
populism-provoking capacity of the demosprudential dissent comes from
its partial-outsider status. The dissent is conducive to popular inspiration
in part because it lacks the compelling power of the state behind it; dissents
establish no precedent and justify no legal violence. Instead, dissents
inherently offer a challenge to the prevailing legal norm and an alternative
to the state’s use of force to carry out that norm. Dissents, like the sociopolitical action they hope to provoke, are an act of resistance.14
By describing an imagined alternative to the legal world defined by the
majority opinion, and by drawing ordinary people into sharing the
dissenter’s vision, dissents protect what Robert Cover called the
“jurisgenerative” features of communal life.15 Justices accomplish this,
Guinier suggests, by writing directly to the public (or affected segments of
it) in language that avoids dry, cold legalisms in favor of emotional appeals
to common national values. The best demosprudential dissents attend to
“the premises behind the logic, the stories and not just the explanations”
underlying the Court’s constitutional hermeneutics.16 In doing so, they
welcomeperhaps “authorize”everyday folk to oppose the Court’s
10
See Guinier, Foreword, supra note 3, at 50–51 (“Simply by contesting the view of the Court
majority, the dissenter may reveal a more transparent deliberative process of lawmaking.”).
11
See Robert F. Williams, In the Supreme Court’s Shadow: Legitimacy of State Rejection of
Supreme Court Reasoning and Result, 35. S.C. L. REV. 353, 375 (1984) (noting the influence of U.S.
Supreme Court dissents on Congressand state courts); see also Robert Post, Law Professors and
Political Scientists: Observations on the Law/Politics Distinction in the Guinier/Rosenberg Debate, 89
B.U. L. REV. 581, 582 (2009) (describing the significance of Guinier’s theory as its placement of
judges within, rather than apart from, democratic deliberation).
12
See Guinier, Foreword, supra note 3, at 15–16 (explaining that dissents sometimes focus on
“enhancing . . . democratic potential” rather than reasoning through traditional legal forms).
13
See id. at 49 (describing the elements of a demosprudential dissent).
14
See id. at 48–49 (noting that dissents challenge, rather than exercise, the law’s coercive power).
15
See Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 89 B.U.
L. REV. 539, 544–45 (2009) (citing Robert M. Cover, Foreword: Nomos and Narrative, 97 HARV. L.
REV. 4 (1983)) (describing demosprudential dissents as a method of cooperation between legal elites
and ordinary people).
16
See Guinier, Foreword, supra note 3, at 11, 13 (describing a Justice Breyer dissent).
590
[Vol. 42:585
17
conclusion.
In contrast, conventional constitutional thought suggests that U.S.
Supreme Court opinions end the debate about the fundamental norms at
stake in the decided case; it is for this reason that advocates of judicial
minimalism urge the Court to avoid reaching these profound questions.18
For reasons of popular sovereignty, Larry Kramer seems appalled19 by the
way that Supreme Court decisions exhibit the “jurispathic”
tendenciesthe killing of ongoing popular debate about the meaning(s) of
fundamental social values as embodied in lawthat Professor Cover
described.20 Demosprudence offers a path toward revival of alternative,
non-statist nomoi and narratives because it reminds us that court law and
folk law are articulated, just as the leg bone is connected to the hip bone.
We the People occasionally find sufficient inspiration in judicial dissents,
like Justice Ginsburg’s in Ledbetter21 or Justice Breyer’s in Parents
Involved,22 to take up the colors and recapture the legal battlements. As
new scholarship from Jason Mazzone confirms,23 the Court speaks, but it
lacks the last word.
Unfortunately, the orality of dissents from the bench attracts Guinier’s
attention as particularly promising for democratic engagement.24 “The
idea,” she argues, “is that speech is primary, present, natural, interior, real,
authentic, and whole, and writing is secondary, artificial, exterior, a
representation of speech, a substitute for speech, removed from reality, a
subversion or corruption of the original speech.”25 Even if true, the neartotal unavailability of U.S. Supreme Court dissents from the bench makes
17
See Timothy R. Johnson et al., Hear Me Roar: What Provokes Supreme Court Justices to
Dissent from the Bench?, 93 MINN. L. REV. 1560, 1581 (2009) (explaining that oral dissents “signal
litigants and other actors . . . that the [Court’s] decision is a bad one and someone must act to change
it”).
18
See, e.g., Cass R. Sunstein, Testing Minimalism: A Reply, 104 MICH. L. REV. 123, 128 (2005)
(arguing that “the argument for minimalism is strongest in an identifiable class of cases: those in which
American society is morally divided, those in which the Court is not confident that it knows the right
answer, and those in which the citizenry is likely to profit from more sustained debate and reflection”).
19
See Kramer, supra note 2, at 697 (complaining that lawyers and lay people alike assume
without real question that the U.S. Supreme Court has sole interpretative authority over the federal
Constitution).
20
See Cover, supra note 15, at 53 (describing state-backed law as tending to destroy all
competing legal norms).
21
See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 643 (2007) (Ginsburg, J.,
dissenting), superseded by statute, 42 U.S.C. § 2000e-5(e) (2009).
22
See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738, 2800 (2007)
(Breyer, J., dissenting). At the time of publication, this case had not been published in the U.S.
Reporter.
23
See Jason Mazzone, When the Supreme Court Is Not Supreme, 104 NW. U. L. REV.
(forthcoming 2010) (describing how the U.S. Supreme Court’s interpretive authority has elided into
that of the state courts).
24
See Guinier, Foreword, supra note 3, at 26–27 (emphasizing the special significance of spoken
dissents).
25
Id. at 27.
2009]
591
26
them poor candidates, at present, for democratic engagement. However,
Guinier’s distinction between oral and written dissents may be somewhat
hyperbolic. A Justice who authored a stirring written dissent but declined
to read it aloud might be forgiven for concluding, like the poet, that
“Between my finger and my thumb/ The squat pen rests./ I’ll dig with it.”27
Applying Guinier’s concept of demosprudence to written dissents seems to
sacrifice little of the theory’s descriptive and normative power.
Critics of demosprudence theory notably include the political scientist
Gerald Rosenberg. He argues that the theory, although an effort to link the
Court with democratic deliberation and with the popular legitimacy such
deliberation would provide, hinges on wildly misplaced optimism about
how much the public knows or cares about the Supreme Court’s work.28
For Professor Rosenberg, legal elites’ concentrated gaze on the U.S.
Supreme Court, even when purporting to study grassroots activism, reveals
a blind romanticism. Rosenberg argues that demosprudence imprudently
ignores the institutions of popular politics, the majoritarian venues through
which democratic deliberation really happens.29
In rebuttal, Robert Post points out that precious few members of the
public could identify congressional leaders or the faceless activists who toil
on party platforms, either, yet those politicians’ importance to how
American popular government works appears beyond cavil. This is
because, Post suggests, deliberative democracy operates more through
public debate and communal relationships than through the measurable
results of superficial shifts in public-opinion polls.30 Indeed, Guinier’s
understanding of demosprudence explicitly depends on this subtler (yet
more profound) concept of politics.31
Beyond defending Guinier’s development of demosprudential theory,
Professor Post, with Reva Siegel, has also recently contributed to the
literature on the relationship between the U.S. Supreme Court and
democratic action. They explain that political backlash to U.S. Supreme
Court opinions, often viewed with dismay by juriscentric legal elites,
actually exhibits the mutually influential relationship between grassroots
26
See Frederick C. Harris, Specifying the Mechanism Linking Dissent to Action, 89 B.U. L. REV.
605, 607 (2009) (noting that the possibility of oral dissents provoking grassroots action is hampered by
the public’s lack of access to these spoken texts).
27
SEAMUS HEANEY, Digging, reprinted in NEW SELECTED POEMS: 1966–1987, at 2 (1990).
28
See Gerald N. Rosenberg, Romancing the Court, 89 B.U. L. Rev. 563, 564 (2009) (arguing that
ordinary people simply do not know about the Court’s opinions and that even elites care only about the
holdings, not the Justices’ reasoning or rhetoric). But see Dion Farganis, Does Reasoning Matter? The
Impact of Opinion Content on Supreme Court Legitimacy (July 15, 2009) (unpublished manuscript),
available at http://ssrn.com/abstract=1434726 (arguing that the reasoning in a Supreme Court opinion
does affect how a lay reader perceives the opinion’s legitimacy).
29
Rosenberg, supra note 28, at 564.
30
See Post, supra note 11, at 583–85 (2009) (rejecting Rosenberg’s reliance on observable and
quantifiable factors as the sole determinants of political significance).
31
See Guinier, Foreword, supra note 3, at 48 (explaining that the goal of demosprudential
dissenters is not necessarily a shift in voting percentages, but a shift in public normative discourse).
592
[Vol. 42:585
32
politics and Court decisions. This connection offers the Supreme Court a
measure of democratic legitimacy that helps it escape the charge that its
countermajoritarian power undermines popular sovereignty.33 Backlash,
though obviously undesirable to the Justices whose interpretations face
public rejection, potentially strengthens rather than weakens the Court as a
crafter of nomos.34 And how do the Court’s opinions engage the ordinary
people who then respond politically? Post argues that the Justices use the
“familiar techniques” we recognize in demosprudence theory: a
combination of both standard legal reasoning and emotional rhetoric to
inspire and persuade.35
III. INTERACTIVE FEDERALISM
The new scholarship on demosprudence has focused exclusively on the
role of the U.S. Supreme Court in engaging grassroots democracy, to the
exclusion of state courts (or, indeed, of states at all). Similarly, the best
recent scholarship on state constitutionalism has largely overlooked the
relationship between courts and ordinary people in constitutional
interpretation, in favor of scrupulous attention to the dialogue between
state high courts and the U.S. Supreme Court. The most prominent
exception, Douglas Reed’s 1999 article,36 links state constitutions to
popular democracy, but treats the interaction between state constitutional
interpretation and political forces as internal to each state. Nevertheless,
the state constitutionalists’ theory of federalism amply rewards careful
study.
James
Gardner’s
path-breaking book,
Interpreting
State
Constitutions,37 proposes an elegant solution to a problem that has vexed
state high courts and their academic observers since Justice Brennan’s
famous call for state constitutional interpretation independent of federal
precedent.38 The difficulty is that many state constitutions include rights
provisions worded identically (or close enough) to corresponding
provisions in the federal Constitution; what might legitimate a state court
32
See Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42
HARV. C.R.-C.L. L. REV. 373, 390–91 (2007) (noting that U.S. Supreme Court decisions can provoke a
backlash that consists of ordinary people debating constitutional meaning and acting on their legal
understanding).
33
See id. at 383 (arguing that one reason for popular loyalty to the Supreme Court is its potential
responsiveness to democratic demands).
34
See id. at 395 (suggesting that backlash might be essential to retaining the democratic
legitimacy of judicial opinions).
35
Robert Post, Democracy, Popular Sovereignty, and Judicial Review, 86 CAL. L. REV. 429, 441
(1998).
36
Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional
Meanings, 30 RUTGERS L.J. 871, 874–75 (1999).
37
See generally GARDNER, supra note 5.
38
See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90
HARV. L REV. 489, 491 (1977) (calling for state courts to interpret their state constitutions as more
rights-protective than federal constitutional jurisprudence).
2009]
593
in giving such a provision any meaning other than the U.S. Supreme
Court’s authoritative interpretation?39 Professor Gardner’s functional
approach positions states as competitors to the national government for the
People’s trust and affection.40 Like Lawrence Friedman’s earlier work,41
Gardner’s theory suggests that state courts should unabashedly consider
such matching clauses as an invitation to check and balance the U.S.
The beneficiaries of this
Supreme Court’s rights jurisprudence.42
interpretive redundancy are the People themselves, Gardner maintains.43 If
either the state or federal high court protects individual liberty
insufficiently, the other stands ready to fill the breach.44
Gardner concedes, as he must, that states have frequently been on the
wrong side of the state-federal competition to protect individual liberty.45
But state constitutions offer state high courts at least the capacity to
consider both intrastate domestic arrangements and the relationship
between the state and federal governments. Gardner’s larger challenge lies
in explaining what nomos authorizes independent state interpretation. In
no uncertain terms, Gardner has steadily rejected the search for an
independent state “character” that might provide a normative community
sufficient to justify constitutional interpretation.46 Instead, Gardner
reminds us that state citizens are national citizens, too, and that state
constitutions exist in a legal universe premised on a federalism prescribed
39
See Friedman, supra note 7, at 96–97 (noting that independent interpretation of state
constitutional clauses parallel to federal constitutional clauses has attracted criticism as result-oriented
judicial activism).
40
See GARDNER, supra note 5, at 125–26 (emphasizing the role of states as a protection for
individuals against overreaching national power, and vice versa).
41
See Friedman, supra note 7, at 97 (arguing that autonomous state constitutional interpretation
can provide a useful protection against inadequate U.S. Supreme Court rights protection).
42
See GARDNER, supra note 5, at 254–55 (explaining that matching constitutional provisions
invite the state high court to react to U.S. Supreme Court doctrine and resist the federal interpretation
where appropriate).
43
See id. at 256 (discussing the importance of different levels of government being able to act
independently in the best interests of the people).
44
See id. at 254–55 (noting that the same provision in state and federal constitutions can best
serve the people as interpreted by the respective state and federal authorities).
45
See id. at 135 (noting that states have historically posed an even greater threat to individual
liberty than the federal government); see also Edward A. Purcell, Jr., Evolving Understandings of
American Federalism: Some Shifting Parameters, 50 N.Y.L. SCH. L. REV. 635, 666–67 (2005–06)
(describing the states’ rabid red-baiting and oppressive speech restrictions, above and beyond the
national effort, during World War I and the McCarthy era).
46
See GARDNER, supra note 5, at 231–32 (emphasizing that state citizens derive their political
identity from their concurrent status as national citizens); James A. Gardner, Southern Character,
Confederate Nationalism, and the Interpretation of State Constitutions: A Case Study in Constitutional
Argument, 76 TEX. L. REV. 1219, 1291 (1998) (empirically attacking the argument that state
constitutions reflect unique state values or character). For the view that federalism is only justified
where the subnational units do express a deep set of norms distinct from national values, see MALCOLM
M. FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY & TRAGIC COMPROMISE 60–61
(2008).
594
[Vol. 42:585
47
by the national Constitution. Therefore, Gardner implies that the national
character and national values provide the normative foundation for state
constitutional interpretation.
Robert Schapiro, like Gardner, accepts the implausibility of founding
autonomous state constitutionalism on unique state “character.”48 Rather
than looking toward a national nomos, however, Professor Schapiro
decouples state constitutions from actual communities of value. Instead,
he argues that state constitutions contain, in the texts themselves, all of the
normative foundation an interpreter might need. For Schapiro, it is the
imagined, aspirational nomos described (or implied) in the constitutional
text that ought to drive constitutional interpretation, not any actual or
perceived normative community in the real world.49 Schapiro’s concept is
especially useful as a justification for counter-majoritarian state
constitutional interpretation; the judicial result may not comport with the
values of the state’s actual population, but it reflects the fundamental
values fixed in the text.50 Implicit in this aspect of Schapiro’s theory lies
the central idea that law can influence the ordinary person’s understanding
of constitutional values: if the state court’s mediation of the constitutional
words into actual law could not move the state polity toward the
constitutional aspirations, then the law’s violence would be futile and
cruel.
Even though autonomous state constitutional interpretation derives
justification from each state’s particular constitutional text, Schapiro’s later
work emphasizes that states are not stand-alone entities. Rather, state and
federal power overlap, like the sounds of woodwinds and strings in a single
orchestra: what Schapiro calls “polyphonic” or “interactive” federalism.51
In this view, the state and federal governments each operate
simultaneously on the same subject matter as the other, not within separate
spheres of substantive jurisdiction. Geography, Schapiro maintains, not
regulatory field, distinguishes state from federal power.52 Given states’
overlapping authority with national institutions, Schapiro brilliantly
observes that when state law differs from national law (as when state high
courts offer independent interpretations of state constitutional provisions
textually identical to federal provisions), the result serves as resistance to
47
See GARDNER, supra note 5, at 231–32 (“[S]tate government power is allocated and deployed
not only to ensure good internal self-governance on the state level, but also to ensure the success of the
larger federal system of which state government is a part.”).
48
See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 VA. L. REV.
389, 398 (1998) (rejecting existing state norms as a valid basis for independent state constitutional
interpretation).
49
See id. at 394 (“Rather than relying on vague generalities about state character, judges can turn
their attention to the State Constitution itself . . . .”).
50
See id.
51
See SCHAPIRO, POLYPHONIC FEDERALISM, supra note 6, at 92–95; Schapiro, Interactive
Federalism, supra note 6, at 285–86 (2005).
52
See Schapiro, Interactive Federalism, supra note 6, at 285 (“The scope of this political
authority is defined by territory, not by subject matter.”).
2009]
595
53
the U.S. Supreme Court. A state’s divergent view of a constitutional
right can illustrate an alternative legal world, thereby demonstrating for
officials and citizens alike that the U.S. Supreme Court lacks the final,
definitive, jurispathic word.54
Like Gardner and Schapiro, Paul Kahn rejects states as autonomous
nomoi.55 Kahn explains state constitutionalism by emphasizing that state
constitutions are situated in a federal structure and therefore always exist in
a national context.56 The role of state high courts in interpreting their
constitutions independently from U.S. Supreme Court jurisprudence
“accords with a longstanding justification of federalism,” Professor Kahn
says, “under which state governments provide a forum for discussion,
disagreement, and opposition to actions of the national government.”57
Reflecting his view that state constitutional interpretation is really about
discovering the meaning of a naturalistic “American” constitution, Kahn
admires Thomas Cooley’s 1878 treatise on state constitutionalism because
it treated the whole field as a single interpretive project across states, rather
than as a series of unique state texts.58 For Kahn, the reduction of
American constitutional discourse to the holdings of the federal Supreme
Court represents a massive social failure; he therefore calls for a renewed
interpretive debate over fundamental values in Congress, in law schools,
and particularly in the state high courts.59
The consensus of these state constitutional theorists, then, is that state
high courts can and do serve as sites of contestation over deep national
values. Given their capacity to insulate state constitutional holdings from
U.S. Supreme Court review, state high courts enjoy a special power to
resist the Supreme Court’s tendency to shrink the national constitutional
imagination.
IV. CAN STATE CONSTITUTIONAL DECISIONS WORK AS FEDERAL
DEMOSPRUDENTIAL DISSENTS?
As noted above, adherents to the contemporary demosprudence school
of thought focus exclusively on the U.S. Supreme Court as the judicial
institution capable of inspiring democratic action (and thereby earning
democratic legitimacy). Interestingly, anthropologist Sally Engle Merry
53
See id. at 288–90 (citing Lawrence v. Texas, 539 U.S. 558 (2003), as one such example).
See id. at 289 (noting that state law can serve as an inspiring rebuke to federal jurisprudence).
55
See Kahn, supra note 4, at 1148 (“The diversity of state courts is best understood as a diversity
of interpretive bodies, not as a multiplicity of representatives of distinct sovereigns.”).
56
See id. at 1166 (arguing that state courts should view their constitutions in light of “American
constitutionalism”).
57
Id.
58
See id. at 1162–63; see generally THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION
(4th ed. 1878).
59
See Kahn, supra note 4, at 1155 (arguing that democracy depends on a rich constitutional
discourse expressive of more than a single institution’s constitutional view).
54
596
[Vol. 42:585
found trial-level courts and officials to be profoundly influential in
inspiring new popular understandings of legally contested values. She
noted that trial courtrooms are the scenes of performances, which “allow
authoritative judicial and prosecutorial figures to interpret everyday life in
new ways.”60 Professor Merry’s research suggests the potential power of
courts—other than the U.S. Supreme Court—to foster democratic
deliberation. This section asks whether state high court constitutional
decisions might share some part of the demosprudential potential of U.S.
Supreme Court dissents.
By posing this question, I do not intend to consider state constitutional
dissents, though those judicial writings might well be concerned with the
contestation and negotiation of national values. In part, this Essay adopts
this approach because a state high court that gives its state constitution a
meaning different from federal jurisprudence already acts as a minority
voice; the state court already rejects the federal holding (although possibly
not for the same reasons as dissenting federal Justices). State court
dissents then fill the role of defending the conception of national values
explained by the U.S. Supreme Court’s majority opinion, and so become
apologia for the federally-declared law rather than writings of
jurisgenerative potential. Nor does this Essay intend to review state high
court decisions of federal constitutional law. For one thing, an essay
asking whether state court determinations of federal law might plausibly be
viewed as about federal law would not likely be interesting, even to legal
academics. For another, such decisions fall unambiguously under the
authoritative control of the U.S. Supreme Court,61 and although state courts
might use the opportunity to critique federal jurisprudence, the U.S.
Supreme Court can sap the potency of any judicial back-talk with a binding
reversal.
Finally, my interest here lies in the capacity of state
constitutional decisions to inspire a national political response from
ordinary people. State constitutional decisions can, and certainly do,
provoke the sort of democratic backlash described by Post and Siegel
within the affected state.62 This Essay’s query, which links for the first
time the exciting recent developments in demosprudence theory and
interactive federalism, asks whether the opinions of state high court
majorities interpreting state constitutions might function as federal
constitutional demosprudential dissents.
This inquiry invites three questions. First, are state high courts really
60
SALLY ENGLE MERRY, COLONIZING HAWAI‘I: THE CULTURAL POWER OF LAW 261 (2000).
See Michigan v. Long, 463 U.S. 1032, 1038–41 (1983) (holding that the U.S. Supreme Court
may review state court decisions of mixed state and federal law in the absence of a clear statement that
the state disposition is independently supported by state law).
62
See, e.g., Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009) (acknowledging that a popular
initiative, Proposition 8, had amended the state constitution to supersede the holding of a state court
constitutional decision); see also Reed, supra note 36, at 887–89 (describing the “democratic
penetration” into state constitutional interpretation).
61
2009]
597
talking about the same thing as the U.S. Supreme Court when they
interpret state constitutional provisions differently from the matching
federal constitutional provisions? In other words, can state constitutional
decisions really function as a species of national constitutional law?
Second, if state constitutionalism is indeed at least potentially a
commentary on federal constitutionalism, can a state constitutional
majority opinion function as a dissent, which by definition lacks the force
of law? And finally, can state constitutional decisions meet the
democracy-enhancing criteria described in demosprudence theory? The
remainder of this Essay suggests that the answer to each of these questions
might be “yes.”
A. Can
State
Constitutional
Constitutionalism?
Decisions
Work
as
Federal
To start, one must remember that the more common technique of state
constitutional interpretation is not divergence from federal precedent, but
near-obsequious adherence to it.63 From the practical perspective of state
courts, then, and for better or for worse, state constitutionalism is already
driven largely by federal doctrine and federal values.64
The work on interactive federalism by Gardner, Schapiro, and Kahn
described above further demonstrates that even “independent” state
constitutional interpretation is best understood as intimately bound to
federal constitutionalism. Because state citizens’ political identity is tied
to the national, rather than state, community,65 even state judges who
attempt to read the character of their state for purposes of autonomous
constitutional interpretation will end up finding a national nomos. As Post
and Siegel remind us, open-ended constitutional provisions like those
protecting liberty and equality invite courts to express national values.66
These open-ended provisions in state constitutions extend the same
invitation. In the political practices of ordinary people, we see “a social
consensus that fundamental values in this country will be debated and
resolved on a national level.”67
If state constitutional interpreters are really engaged in construing a set
63
See Schapiro, Interactive Federalism, supra note 6, at 290–91 (noting that state high courts
usually interpret state constitutional provisions by simply adopting U.S. Supreme Court reasoning and
results).
64
See Robert F. Williams, State Courts Adopting Federal Constitutional Doctrine: Case-by-Case
Adoptionism or Prospective Lockstepping?, 46 WM. & MARY L. REV. 1499, 1502 (2005) (noting that
state courts interpreting state constitutions follow federal jurisprudence in the “clear majority” of
cases).
65
See Cover, supra note 15, at 48–49 (observing that “by the mid-twentieth century the states had
long since lost their character as political communities”).
66
See Post & Siegel, supra note 32, at 378–79 (relating national nomos to the judicial
interpretation of deep constitutional debates).
67
James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761, 828
(1992).
598
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of national constitutional values, as described here, then an important
challenge is why the U.S. Supreme Court should lack the authority to
impose its final interpretation on these values.68 Regardless of any “plain
statement”69 they might make, why should state courts be permitted to
diverge from the U.S. Supreme Court’s interpretation of national
constitutional requirements if their state constitutional clauses are merely
alternative articulations of those same national values? Robert Williams
has argued that the U.S. Supreme Court’s concern for federalism, a
concern that seeps into even ordinary individual-rights cases, renders the
federal precedents inadequate to teach state high courts what the
underlying values ought to be when the filter of federalism is removed.70
Gardner’s functional theory and Schapiro’s interactive federalism,
which both argue for a self-consciously federalist approach to state
constitutional interpretation, derive their legitimacy from the federal
Constitution itself, which carves out from federal oversight the legal space
in which state constitutions operate.71 This constitutional space leads to an
important consequence. Both the public and legal elites typically believe
that the U.S. Supreme Court has the last word on the meaning of
constitutional liberty and equality.72 Even the Court itself thinks so.73 But
this is false.74
From the perspective of the ordinary person, state constitutional
interpretation of liberty and equality often offers the last word. To the cop
on the beat concerned with executing a lawful search and seizure, the
union organizer wishing to distribute petitions in the shopping mall, or the
speeding motorist seeking to contest her ticket before a jury, the U.S.
Supreme Court’s determination of these rights under the federal
Constitution’s text is the starting point, not the ending point, for analysis.75
The law that actually applies, the word that bears the threat of violence, is
the state court’s state constitutional interpretation. If the police officer
searches a car without a warrant because federal constitutional doctrine so
permits, she will still have done wrong if the state constitutional court has
68
I am grateful to Rick Kay for raising this point.
See Michigan v. Long, 463 U.S. 1032, 1041 (1983) (declaring that the U.S. Supreme Court will
treat state high courts’ constitutional decisions as presumptively federal unless the state court opinion
includes a “plain statement” that the decision rests on state constitutional law).
70
See Williams, supra note 11, at 389–90 (noting how the U.S. Supreme Court seems constrained
by federalism concerns inapplicable to the states).
71
See Friedman, supra note 7, at 97.
72
See Tom Donnelly, Note, Popular Constitutionalism, Civic Education, and the Stories We Tell
Our Children, 118 YALE L.J. 948, 954–55 (2009).
73
See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (“We are not final
because we are infallible, but we are infallible only because we are final.”).
74
Cf. Mazzone, supra note 23 (noting how the U.S. Supreme Court has, for practical purposes,
surrendered much of its interpretive authority over the federal Constitution to state courts).
75
See JEFFREY M. SHAMAN, EQUALITY AND LIBERTY IN THE GOLDEN AGE OF STATE
CONSTITUTIONAL LAW 7–8 (Oxford Univ. Press 2008) (cataloging state constitutional protection of
equality and liberty above the federal floor).
69
2009]
599
protected the privacy of citizens’ cars. If the mall manager expels the
pamphleteer because the Supreme Court has declined to find free speech
protection against private parties, the expulsion will still be unlawful if the
state constitution offers a stronger protection of free expression.
Of course, perhaps a particular state high court has not protected the
liberty or equality claim at question beyond the protection offered by the
U.S. Supreme Court. But that conclusion reflects the state high court’s
agreement with the Supreme Court majority’s view of the disputed rights,
not a lack of power in the state court to disagree. Thus, the final,
authoritative judicial declaration of how much rights protection individual
citizens actually receive commonly depends on state constitutional
interpretation.76
This means that any popular discontent with judicial rights
protection“Why, there oughta be a law!”might be targeted at federal
institutions and articulated in federal terms,77 but reflects a (perhaps
unwitting) response to state constitutionalism. The speeder wishing to
contest her ticket before a jury but told she lacks the right to do so might
complain about an inadequate Sixth Amendment right to a jury trial, but it
is also the state constitution that did not protect her right (although it could
have). If the speeder is truly exercised, she might initiate democratic
debate leading to a change in the federal understanding of jury-trial rights.
But that national result was caused, in part, by the state high court’s
interpretation of the state constitution. As Gardner eloquently observes,
“My welfare, in other words, depends not only on our shared national
Constitution and on my state constitution, but also to some extent on your
state constitution as well.”78 State constitutions form a front-line part of
the overall American constitutional net protecting liberty and equality. It
would seem both fair and accurate, then, to suggest that state constitutional
decisions form part of the ongoing federal constitutional interpretive
project.
B. Can State Constitutional Decisions Work as Federal Dissents?
State constitutional majority decisions are law. They mediate,
legitimize, and mobilize real violence against human beings.79 Dissents,
on the other hand, do not. A dissent is a “story,” an emotional outburst or
76
The state constitution might be interpreted to be less protective than the federal Constitution,
but it would then have the same practical effect as if it had the same level of protection, because federal
law is supreme.
77
See, e.g., Area Man Passionate Defender of What He Imagines Constitution To Be, ONION,
Nov. 14, 2009, http://www.theonion.com/content/news/area_man_passionate_defender_of (satirically
illustrating the cultural prominence of the federal Constitution).
78
GARDNER, supra note 5, at 122.
79
See Robert M. Cover, Essay, Violence and the Word, 95 YALE L.J. 1601, 1606 (1986)
(identifying the use or threat of violence as essential to the distinction between law and literature).
600
[Vol. 42:585
an attempt to persuade, but powerless to “announce[] . . . new law.”80
How, then, could a decision be a dissent? To begin to resolve that
paradox, this Essay first considers why any judge might take the trouble to
pen a dissent.
Standard explanations for dissenting might envision the dissent as
motivated by an attempt to persuade a future Supreme Court to reverse
course or an effort to gain political capital for the dissenter against the
other Justices for use in future disputes.81 Demosprudence, as seen
already, explains some dissents as an attempt to inspire democratic
action.82 Additionally, Justice Brennan once suggested that one reason for
a federal Justice to dissent lies in the dissent’s potential to persuade a state
high court to adopt the dissenter’s rationale as a matter of state
constitutional law.83 Could state constitutional decisions, in turn, influence
the interpretative strategies of national institutions, including the U.S.
Supreme Court? Recent empirical work suggests that “[f]rom due process
to equal protection, from the First Amendment to the Fourth and Sixth, the
[U.S.] Supreme Court routinelyand explicitlybases constitutional
protection on whether a majority of states agree with it.”84
State constitutional decisions, although binding in the state where
issued, are merely persuasive everywhere else. They do not impose the
state judges’ views on the national polity. In this way, state constitutional
decisions are simultaneously law and not-law, depending on one’s
territorial vantage point. The generic reasons for dissenting might also
help motivate a state high court to adopt an independent state constitutional
analysis. For example, just as a Justice might use a dissent to convince her
colleagues that future disagreements might provoke future dissents, so a
prior independent state constitutional interpretation might serve as a signal
to the U.S. Supreme Court that the state high court is willing to reject
federal doctrine again in the future.85
To the extent they find federal constitutional jurisprudence
unpersuasive—which is frequently the case when a state court construes its
state constitution beyond the federal floor—state high courts implicitly or
explicitly criticize the U.S. Supreme Court. Doing so might come at some
cost to norms of collegiality and respect, just as dissenting from within the
80
Guinier, Foreword, supra note 3, at 48–49.
See Johnson et al., supra note 17, at 1568–69 (describing reasons to dissent).
82
See Guinier, Courting the People, supra note 15, at 544–45.
83
See William J. Brennan, Jr., Associate Justice of the U.S. Supreme Court, In Defense of
Dissents, Third Annual Matthew O. Tobriner Memorial Lecture at the University of California,
Hastings College of Law (Nov. 18, 1985), in 37 HASTINGS L.J. 427, 430 (1986).
84
Corinna Barrett Lain, The Unexceptionalism of “Evolving Standards,” 57 UCLA L. REV.
(forthcoming 2009).
85
See, e.g., Commonwealth v. Wasson, 842 S.W.2d 487, 497 (Ky. 1992) (justifying a state
constitutional interpretation at odds with federal doctrine by reference to an earlier independent state
constitutional interpretation).
81
2009]
601
86
Court does, so one might not be surprised to find autonomous state
constitutionalism practiced only intermittently.87 Nevertheless, the state
judges might be motivated to pay that cost by a desire to change future
federal doctrine, to gain credibility vis-à-vis the U.S. Supreme Court, and
to inspire public political action. The following review of the Connecticut
Supreme Court’s decision in Sheff and the Iowa Supreme Court’s decision
in Varnum suggests that the functions of a dissent do indeed underlie these
state courts’ independent constitutional interpretation.
C. Can State Constitutional Decisions Meet the Demosprudence Criteria?
Guinier proposes a three-part definition of the demosprudential dissent.
First, the dissent must be centrally concerned with an “issue of
democracy”; second, the writing must be easily comprehensible to ordinary
people outside of the legal elite; and, finally, the dissent must “appear[] to
inspire nonjudicial actors to participate in some form of collective problem
solving.”88 Notably, on their face, none of these criteria are exclusively
limited to U.S. Supreme Court dissents. If an independent state
constitutional decision deals with issues of liberty, equality, or basic
governmental structure, is written in plain terms, and seems to target
ordinary people to deliberate democratically, then the decision would seem
to satisfy the core characteristics of a demosprudential dissent. To test
whether state constitutional decisions can sometimes meet these criteria,
this Essay now turns to actual examples of independent state
constitutionalism.
V. SHEFF V. O’NEILL AND SCHOOL DESEGREGATION
Through the 1970s and 1980s, the U.S. Supreme Court adopted an
increasingly hostile view toward desegregation and education rights. In
cases like San Antonio Independent School District v. Rodriguez, holding
that a Texas school financing system that disadvantaged poor schools did
not violate the federal Equal Protection Clause,89 and Milliken v. Bradley,
holding that remedial orders for de jure segregation must be confined to
the district found to have segregated rather than directed toward a regional
solution,90 the U.S. Supreme Court clearly signaled its impatience to end
federal court efforts to reverse racial isolation in public schools. The
Court’s distaste for ongoing supervision of school desegregation continued
86
See Johnson et al., supra note 17, at 1570 (establishing empirically the significance of
collegiality as a motivation to dissent or not).
87
See Justin Long, Intermittent State Constitutionalism, 34 PEPP. L. REV. 41, 42 (2006) (noting
the phenomenon of inconsistently independent state constitutional interpretation).
88
See Guinier, Foreword, supra note 3, at 16.
89
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41, 54–55 (1973).
90
Milliken v. Bradley, 418 U.S. 717, 744–45 (1974).
602
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91
with cases like Allen v. Wright. There, parents of black schoolchildren
sued to compel the Internal Revenue Service to enforce anti-discrimination
rules against all-white (yet purportedly tax-exempt) private schools, but the
U.S. Supreme Court held that the plaintiffs lacked standing.92
These cases certainly gave civil rights lawyers (and the children they
represented) good reason to feel discouraged. Early lawsuits in federal
court designed to repair the racial isolation in inner-city schools were
dropped when Milliken made plain that the federal Constitution could not
support inter-district desegregation.93 Yet, rather than accept the Supreme
Court’s normative vision of a color-blind Constitution upholding a
radically racist education system, civil rights lawyers looked for alternative
spaces in which they could contest the federal Court’s proffered nomos.
Specifically, they turned to state constitutionalism.94
In April 1989, lawyers from a host of state and national civil rights
organizations, including the American Civil Liberties Union (“ACLU”)
and the NAACP Legal Defense and Educational Fund (“LDF”), filed a
complaint in Connecticut Superior Court seeking a declaration that the
isolation of racial minorities in the Hartford Public Schools breached the
state’s constitutional obligation to provide equal educational opportunity.95
Unlike conventional school desegregation cases at the time, the plaintiffs
did not raise federal constitutional claims because they alleged only de
facto segregation, not the de jure segregation the U.S. Supreme Court had
come to require before finding a constitutional violation.96 The plaintiffs’
efforts would be vindicated, in 1996, by the Connecticut Supreme Court
decision in Sheff v. O’Neill.97
In shifting from federal to state constitutional litigation, lawyers like
John Brittain of the Sheff plaintiffs’ team were not expressing an epiphany
that Connecticut values, rather than American values, would provide the
moral girding necessary for constitutionalized desegregation. To the
contrary, these legal elitesthe cream of the national civil rights
91
468 U.S. 737, 757–58 (1984) (holding that the claimed injury of diminished education to
children was not fairly traceable to the government conduct alleged to be unlawful).
92
See id. at 739–40.
93
See SUSAN B. EATON, THE CHILDREN IN ROOM E4: AMERICAN EDUCATION ON TRIAL 80–81
(2006) (describing Hartford-area school desegregation cases filed in federal court but rejected upon
application of Milliken); George Judson, Civil Rights Lawyers Hope to Use Hartford Schools Case as a
Model, N.Y. TIMES, Aug. 15, 1996, at B1 (noting that the U.S. Supreme Court’s anti-integrationist
decision in Milliken led to the failure of Hartford school desegregation cases filed in federal court).
94
See Peter D. Enrich, Race and Money, Courts and Schools: Tentative Lessons from
Connecticut, 36 IND. L. REV. 523, 524–25 (2003) (noting that education reform advocates turned
toward state constitutional litigation to advance public school integration after U.S. Supreme Court
retrenchment in the 1970s).
95
See EATON, supra note 93, at 93, 111–12 (describing the story behind the filing of Sheff).
96
See Charlotte Libov, State Readies Court Reply to Desegregation Suit, N.Y. TIMES, Aug. 13,
1989, at 12CN1 (describing the gravamen of the Sheff complaint).
97
678 A.2d 1267, 1270–71 (Conn. 1996). For a previous study of this case, see Justin R. Long,
Comment, Enforcing Affirmative State Constitutional Obligations and Sheff v. O’Neill, 151 U. PA. L.
REV. 277 (2002).
2009]
603
barpersisted in their belief that the federal Constitution should have been
construed to protect equal educational opportunity; state constitutional
litigation was the lawyers’ solution to evade the restrictive federal
precedents while still offering school children across the country a
constitutional remedy.98 After all, the racial isolation in Hartfordwhere
over ninety percent of the students were black or Latino, contrasted with
the suburbs, where over ninety percent of the students were white99was a
small part of a nationwide pattern that persists today. In American public
schools, most black children have been assigned to mostly minority
schools; there has never been a single year where our schools were more
integrated than that.100 Funding for the Sheff plaintiffs from the ACLU and
the LDF would hardly have been forthcoming if those national
organizations did not see the case as a role model of national significance.
The Sheff complaint thus illustrates the practical role of state
constitutionalism as an alternative site to contest American constitutional
values and reiterates the potential of state constitutionalism to stand as a
counterweight to the U.S. Supreme Court’s perceived role as final arbiter
of constitutional values.
One might appropriately see the origins of the Sheff complaint as
support for the interactive federalism theory: state constitutionalism as
commentary on national constitutional values. But does the state high
court’s opinion in Sheff satisfy Guinier’s criteria for demosprudence?
First, demosprudence requires the case to be about an “issue of
democracy.”101 School desegregation, the issue in Sheff, unequivocally
fits.
As a recent student commentator records, training for the
responsibilities of democratic citizenship has always been a prominent
purpose of public education in this country.102 Education philosopher Amy
Gutmann has written comprehensively on the mutually affirming
importance of public education and democratic citizenship.103 And the
Sheff court itself acknowledged the close relationship between educational
equity and the success of American democracy.104 Issues of race and
children are also culturally powerful and controversial, and so likely to
strike ordinary Americans as foundational in a way that other issues might
not.
Second, a demosprudential opinion is written in a rhetorical style that
98
See EATON, supra note 93, at 112.
See Libov, supra note 96 (providing racial balance statistics).
100
See PETER IRONS, JIM CROW’S CHILDREN: THE BROKEN PROMISE OF THE BROWN DECISION
338 (Viking 2002) (describing the national failure to integrate public schools).
101
See Guinier, Foreword, supra note 3, at 16.
102
See Donnelly, supra note 72, at 964–65.
103
See AMY GUTMANN, DEMOCRATIC EDUCATION 139–48 (1999) (describing the undemocratic
nature of unequal educational opportunity).
104
See Sheff v. O’Neill, 678 A.2d 1267, 1289 (Conn. 1996) (“It is crucial for a democratic society
to provide all of its schoolchildren with fair access to an unsegregated education.”).
99
604
[Vol. 42:585
avoids legal jargon and is within the reading comprehension of ordinary
people. Parts, but not all, of the Sheff decision satisfy this criterion. “The
public elementary and high school students in Hartford suffer daily from
the devastating effects that racial and ethnic isolation, as well as poverty,
have had on their education,” wrote Chief Justice Ellen Peters for the Sheff
court.105 In words surely everyone could understand, the court announced
its disposition: “We hold today that the needy schoolchildren of Hartford
have waited long enough.”106 Although the court declined to issue an
injunction or other remedy beyond its declaratory judgment, it explained
the urgency behind its holding, reminding readers that “[f]inding a way to
cross the racial and ethnic divide has never been more important than it is
today.”107 These phrases are both simple and powerful. They appear in the
Connecticut Reports, but they would not be tonally out of place in a
newspaper editorial or on a television talk show. The rhetoric appeals to
emotions and values as much as to cold legal logic. In this sense, Sheff
exhibits the second feature of a demosprudential opinion.
Finally, demosprudence requires the judicial writing to target people
outside of the legal elite for inspiration toward democratic change. Some
features of the decision do seem self-consciously outward-looking in this
fashion. In introducing the case, for example, the court noted that the
complaint “raises questions that are difficult; the answers that we give are
controversial. We are, however, persuaded that a fair reading of the text
and history of [the state constitution] . . . [demands a public school system
that] provides Connecticut schoolchildren with a substantially equal
educational opportunity.”108 These lines seem like an attempt to forestall a
backlash; it is as if the court is saying that it knows many people will not
like its decision, but that the public should trust the court’s sincerity and
wisdom. As Post and Siegel have taught us, backlashes are themselves
instances of democratic engagement with constitutionalism,109 and so for
the Sheff court to attempt to calm citizens who might otherwise be tempted
to engage in popular sovereignty logically implies that the court is
speaking to ordinary people outside the legal elite. The remedial portion of
Sheff, though, is the most clearly outward-looking component of the
opinion. Chief Justice Peters wrote:
In staying our hand, we do not wish to be
misunderstood. . . . Every passing day shortchanges these
children in their ability to learn to contribute to their own
well-being and to that of this state and nation. We direct the
legislature and the executive branch to put the search for
105
Id. at 1270.
Id.
107
Id. at 1290.
108
Id. at 1280.
109
See Post & Siegel, supra note 32, at 390.
106
2009]
605
appropriate remedial measures at the top of their respective
agendas. We are confident that with energy and good will,
appropriate remedies can be found and implemented in time
to make a difference before another generation of children
suffers the consequences of a segregated public school
education.110
In this passage, the court is speaking to the public and to public
officials quite explicitly, in both tone and substance. In that sense, the
opinion seeks to engage ordinary people and inspire them toward political
action, and so satisfies the third element of a demosprudential opinion.
Indeed, Sheff has inspired much political debate in Connecticut (though
disappointingly little action).111
The true test of whether a state constitutional opinion can be a federal
constitutional demosprudential dissent, however, presumably cannot rest
on inspiring local political action.112 Evidence that Sheff inspired ordinary
people or political leaders to reconsider or debate national values would go
further toward establishing the demosprudential potential of state
constitutional opinions. As it happens, some evidence of that type does
exist. For example, one of Connecticut’s U.S. Senators referred to Sheff by
name in an address in favor of education reform on the Senate floor.113 An
editorial in the Christian Science Monitor, a national newspaper, praised
Sheff and situated the case unambiguously in the national struggle for
educational equity, arguing that “[c]ourt decisions like that in Connecticut,
though they offer no pat solutions, can at least keep us focused on the need
to work together toward a more meaningful education for all America’s
children.”114 And predictably, civil rights lawyers from other states were
eager to learn from the Connecticut experience so as to seek similar
progress from their own state courts.115
On balance, the Sheff opinion seems to satisfy Guinier’s concept of a
federal constitutional demosprudential dissent. The case was brought to
avoid giving the U.S. Supreme Court the final word in an area of law
where it had declined to protect liberty and equality, and the state high
court did indeed use its power to interpret the state constitution to reject the
110
Sheff, 678 A.2d at 1290.
See Vanessa de la Torre, Sheff Backers Worry About State Budget, HARTFORD COURANT, June
16, 2009, at A3 (quoting the co-chairman of the state legislature’s education committee urging support
for increased education funding by asking the legislature to meet “‘its [still un-satisfied] legal and
moral responsibilities’” under Sheff).
112
But cf. Guinier, Foreword, supra note 3, at 12 (describing a Louisville school official’s use of
Justice Breyer’s dissent in Parents Involved to promote local political change).
113
See 147 CONG. REC. S1271-02 (daily ed. Feb. 13, 2001) (statement of Sen. Lieberman)
(supporting an amendment to the Elementary & Secondary Education Act of 1965 by praising a
Connecticut school’s response to Sheff).
114
Editorial, Desegregation Dilemma, CHRISTIAN SCI. MONITOR, July 30, 1996, at 20.
115
See Judson, supra note 93 (describing contact between Sheff attorneys and civil rights lawyers
in other states hoping to emulate Sheff in evading federal court retrenchment).
111
606
[Vol. 42:585
authority of unfavorable federal precedent. The case was about a crucial
problem confronting American democracy. In addressing that problem,
the court’s opinion speaks in emotional, moral tones to reach and inspire
members of the general public. And the opinion urges politicians and
ordinary people to respond to its holding with democratic vigor,
encouraging a popular debate about national constitutional values and
prioritiesthe American nomos.
VI. VARNUM AND SAME-SEX MARRIAGE
Can the potential of state constitutional decisions to serve as federal
constitutional demosprudential dissents find expression in cases other than
Sheff? The Iowa Supreme Court’s recent same-sex marriage decision,
Varnum v. Brien,116 suggests that Sheff might not be just an outlier.
First, although decided strictly on state constitutional grounds, Justice
Cady’s decision in Varnum is entirely bereft of any suggestion that the
justices would have decided the case differently if they were sitting on the
U.S. Supreme Court. The justices applied federal-style equal protection
reasoning,117 they cited federal precedents,118 and they expressed a
(unanimous) moral confidence that transcended text or jurisdiction.119 The
Varnum court sought to effectuate the aspirational values of the state
constitution, as Schapiro would encourage, but the values the court
identified are national in scope and significance, as the court selfconsciously noted: “The same-sex-marriage debate waged in this case is
part of a strong national dialogue centered on a fundamental, deep-seated,
traditional institution that has excluded, by state action, a particular class of
Iowans.”120 Varnum, to its very core, is about national constitutional
values.
Furthermore, the decision proudly rejects U.S. Supreme Court
jurisprudence on the issue at bar, and in that sense works as a federal
dissent, consistent with interactive federalism. Some rejection is explicit,
as where the court lists a series of Iowa constitutional decisions extending
equality protections in advance of the U.S. Supreme Court’s recognition of
116
763 N.W.2d 862 (Iowa 2009).
See id. at 879–80 (describing three tiers of equal protection review: rational basis, intermediate
scrutiny, and strict scrutiny).
118
See, e.g., id. at 880 (citing, among others, Plyler v. Doe, 457 U.S. 202, 217–18 (1982); United
States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938); United States v. Virginia, 518 U.S. 515, 532–
33 (1996)); see also Varnum, 763 N.W.2d at 885–86 (“Although neither we nor the United States
Supreme Court has decided which level of scrutiny applies to legislative classifications based on sexual
orientation, numerous Supreme Court equal protection cases provide a general framework to guide our
analysis under the Iowa Constitution.”).
119
See Varnum, 763 N.W.2d at 890 (“Not surprisingly, none of the same-sex marriage decisions
from other state courts around the nation have found a person’s sexual orientation to be indicative of
the person's general ability to contribute to society.”).
120
Id. at 878.
117
2009]
607
121
the same rights.
Some rejection is stated only indirectly, as where the
court uses federal constitutional terms of art but reaches a conclusion
contrary to that of the federal government.122 And some rejection is
entirely implicit, as where the court describes the same-sex marriage
question as open under federal Supreme Court precedent,123 without
addressing the U.S. Supreme Court’s decision dismissing a same-sex
marriage appeal “for want of [a] substantial federal question” in 1972.124
In acting as a dissent from U.S. Supreme Court constitutional
understandings, the Varnum decision fulfills the functionalist role of state
constitutions described by Gardner; the court protects its citizens from at
least some of the federal government’s intrusions on their right to equality.
As Post and Siegel predicted, state constitutional same-sex marriage
decisions serve as loci of contestation over national values and
constitutional norms.125
Just as Varnum seems to match interactive federalist notions of the role
of state constitutionalism in checking the federal government and courts,
so too the decision fits well with the criteria for a demosprudential dissent.
As a case about marriage, a recognized “fundamental right” under the
federal Constitution, the issue can reasonably be described as one
concerning “democracy.” With respect to tone and accessibility, few
recent constitutional decisions of any American court could match the
powerfully inclusive embrace inherent in these plain and gentle lines:
This lawsuit is a civil rights action by twelve individuals who
reside in six communities across Iowa. Like most Iowans,
they are responsible, caring, and productive individuals . . . .
Like many Iowans, some have children and others hope to
have children. Some are foster parents. Like all Iowans, they
prize their liberties and live within the borders of this state
with the expectation that their rights will be maintained and
protecteda belief embraced by our state motto . . . . Each
maintains a hope of getting married one day, an aspiration
shared by many throughout Iowa.126
The steady repetition of the plaintiffs’ commonalities with “most
Iowans” speaks directly to common folk, reminding them of who they are
and what sort of community they hope to maintain. The court’s emotional,
moral, and simply-phrased tone accomplishes nothing from a coldly
121
See id. at 877 (noting Iowa’s prescient rejection of the later-overturned federal holdings in
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), Bradwell v. Illinois, 83 U.S. (16 Wall.) 130
(1871), and others).
122
See id. at 906 (“We are firmly convinced the exclusion of gay and lesbian people from the
institution of civil marriage does not substantially further any important governmental objective.”).
123
Id. at 878–79 n.6.
124
See Baker v. Nelson, 409 U.S. 810, 810 (1972).
125
See Post & Siegel, supra note 32, at 381–82.
126
Varnum, 763 N.W.2d at 872.
608
[Vol. 42:585
legalistic perspective, but it seems to attempt a reassurance for the ordinary
reader that the court’s decision deserves respect.
Varnum, along with other same-sex marriage cases on both sides of the
issue, appears to have inspired a national debate by activists, politicians,
and the public about the constitutional values the decision expresses.
Activists and organizers for Lambda Legal, the national LGBTQ-rights
organization whose lawyers won the decision in Varnum, also played a
central role in the legal and political fights over same-sex marriage in
California.127 Newspaper reports suggest that Varnum’s influence falls
well beyond the Iowa cornfields; one California minister told a reporter he
thought the decision would spark a popular backlash against “‘activist
judges’ in general,” but a California gay-rights activist predicted to the
same journalist that Iowa’s reputation as “Middle America” and “the
heartland” would open more minds to the possibility of following
Varnum.128 John Logan, a sociologist, agreed that Varnum’s origin in a
rural, Midwest state could make same-sex marriage seem more “related to
core American values” than similar decisions in the high courts of
Furthermore, state constitutional
Massachusetts and California.129
decisions like Varnum might already be increasing the political pressure on
President Obama to expand federal rights for same-sex couples (a vivid
example, if true, of how Gerald Rosenberg’s focus on quantifiable shifts in
polling data might overlook more important aspects of deliberative
democracy).130
VII. CONCLUSION
State constitutional scholars, working over the last decade, have
developed a rich set of theories to explain how state constitutional
decisions can serve as a liberty-enhancing counterweight to U.S. Supreme
Court decisions. In focusing on the state-federal relationship, however, the
scholarship on interactive federalism has paid little attention to the
relationship of this judicial dialogue to deliberative democracy.
On the other hand, the very recent development of demosprudence
theory greatly advances our understanding of the connection between
127
See Lambda Legal, Varnum v. Brien, http://www.lambdalegal.org/in-court/cases/varnum-vbrien.html (last visited Oct. 13, 2009); Lambda Legal, California, http://www.lambdalegal.org/statesregions/california.html (last visited Oct. 13, 2009); see also John Schwartz, Ruling Upholds
California’s Ban on Gay Marriage, N.Y. TIMES, May 27, 2009, at A1.
128
Jessica Garrison & Maura Dolan, Iowa’s OK of Gay Marriage Could Bolster Prop. 8 Foes,
L.A. TIMES, Apr. 4, 2009, at A1.
129
See Amy Lorentzen, Same-Sex Marriage Upheld in Iowa: State First in Nation’s Heartland to
Join Massachusetts, Connecticut, STAR-LEDGER (Newark, N.J.), Apr. 4, 2009, at 3 (explaining that
decisions in Massachusetts and California could be viewed as extremism on the coasts, rather than
related to core American values).
130
See Michael D. Shear, At White House, Obama Aims to Reassure Gays, WASH. POST, June 30,
2009, at A1 (reporting that President Obama promised to work toward repeal of the federal Defense of
Marriage Act that prohibits federal recognition of same-sex marriages).
2009]
609
judicial and popular constructions of constitutional values. But that
scholarship overlooks almost entirely the extraordinary capacity of state
constitutional decisions to offer an alternative site for legitimate
contestation of U.S. Supreme Court jurisprudence.
This Essay has asked whether these two schools of thought might
contribute to each other. By studying two state constitutional opinions, it
tested the idea that these types of decisions might sometimes work as
demosprudential dissents. Both Sheff v. O’Neill, the Connecticut school
desegregation case, and Varnum v. Brien, the Iowa same-sex marriage
case, appear to function both as examples of interactive federalism and as
examples of demosprudential dissents. Perhaps future scholarship will
continue to espouse an integrated approach toward state constitutionalism
and demosprudence theory.
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Note
GOOD FAITH REJECTION OF GOODS IN A FALLING MARKET
JEFFREY M. DRESSLER
This Note analyzes the intersection of two fundamental components of
American sales law under the Uniform Commercial Code: the perfect
tender rule and the duty of good faith. It focuses on cases in which buyers
of goods use their right to perfect tender to avoid purchasing goods that
have become diminished in value. Some commentators, and, indeed, some
courts, have argued that such conduct runs afoul of parties’ underlying
duty of good faith in the performance of contracts. This Note rejects this
position, and, instead, argues that if goods are truly non-conforming—even
if only “trivially” non-conforming—buyers should retain their right of
rejection irrespective of the hardship this may impose on the seller of
goods. In short, this Note suggests that the duty of good faith should never
override a party’s otherwise tenable right of rejection and advocates a
judicial framework that can allow courts to deal with difficult cases in a
way that is consistent with the intent of the parties and conducive to the
development of a more predictable body of contract law.
611
NOTE CONTENTS
I. INTRODUCTION ................................................................................... 613
II. THE ACADEMIC BACKDROP ............................................................ 615
A. THE PERFECT TENDER RULE ............................................................... 615
B. THE DUTY OF GOOD FAITH IN PERFORMANCE .................................... 621
C. GOOD FAITH IN PERFECT TENDER CASES ............................................ 627
III. JUDICIAL APPLICATION .................................................................. 629
IV. A NEW FRAMEWORK ....................................................................... 633
A. CONSIDERATION OF FALLING MARKET CONDITIONS
IS NOT HELPFUL IN DECIDING CASES ............................................. 633
B. THE ARGUMENT FOR CATEGORICAL EXCLUSION ................................ 637
C. POTENTIAL FOR ABUSE CAN BE LIMITED BY OTHER
LEGAL DOCTRINES AND PERFECT TENDER RULE CONSTRAINTS .... 640
V. CONCLUSION ...................................................................................... 643
JEFFREY M. DRESSLER*
I. INTRODUCTION
Modern contracts literature is ripe with discussions of the duty of good
faith under Article II of the Uniform Commercial Code (“U.C.C.”).
Likewise, the rules governing a buyer’s right to reject non-conforming
goods under section 2-601—better known as the perfect tender rule—have
been vigorously debated. The two issues often intersect. While the perfect
tender rule may suggest that a buyer possesses an unwavering right to
reject in certain circumstances, the duty of good faith may suggest an
obligation to use some degree of equitable restraint in invoking this right
so as to not exploit the seller. Nowhere is this dynamic more apparent than
in cases where the merits of a particular rejection are challenged against
the backdrop of a falling market1 that might lead a reasonable observer to
suspect that the buyer’s rejection was actually motivated by a desire to
escape from a bad bargain rather than out of legitimate dissatisfaction with
any non-conformities in the goods tendered. Exploring this area requires a
survey of the contrasting views of the obligation of good faith, however,
this Note does not seek to add to the philosophical debate about what good
faith should be. Instead, this Note tackles the more pragmatic task of
demonstrating why current conceptions of good faith should not be used to
restrict the force of the perfect tender rule, especially in the context of
sophisticated commercial parties. Ultimately, the goal is to articulate
under what circumstances a buyer may reject goods in a falling market,
and whether sellers should be permitted to offer evidence of a falling
market in order to establish that the buyer rejected in bad faith.
This Note argues that buyers should be entitled to reject goods that are
truly, even if only trivially, non-conforming regardless of the economic
hardship this imposes on a seller. Further, this Note argues that plaintiffsellers should not be permitted to use evidence of a falling market in order
to establish that such rejection was made in bad faith. To get there, Part II
tackles the sticky issue of defining when goods are non-conforming. It
*
University of Connecticut, B.A. 2006; University of Connecticut School of Law, J.D. Candidate
2010. I would like to thank Professor Kurt Strasser for his tremendous guidance in writing this Note
and for inspiring my interest in contract law. I would also like to thank my colleagues on Connecticut
Law Review for their hard work editing this Note. All errors are mine and mine alone. This Note is
dedicated to my parents for their unending support.
1
Throughout this Note, the term “falling market” is used as a shorthand to describe a situation in
which the fair market value of goods falls significantly between the time the buyer agrees to purchase
them from a seller and the time the goods are actually delivered.
614
[Vol. 42:611
argues that any defect that impinges on the bargain the parties struck
should be deemed a non-conformity under the perfect tender rule. As
many cases show, this may include “trivial” defects if they do in fact bear
such significance to the parties’ bargain. Part II also surveys good faith,
ultimately concluding that the most useful model for understanding good
faith in this context is an excluder model that repudiates any conduct
failing to satisfy the two types of conduct affirmatively required for good
faith under the U.C.C.: honesty and commercial reasonableness. Part III
then analyzes cases that have dealt with contested rejections and,
specifically, cases where sellers relied on arguments that the buyer’s
rejection was made in bad faith to escape a bad bargain caused by a falling
market for the goods. The cases indicate a divide between courts that
factor falling market evidence into their reasoning, and those that either
refuse to admit such evidence, or are not persuaded by it. As such, this
area of the law is worthy of more study and, hopefully with time, more
consistency.
With this as a starting point, Part IV argues that courts should resist the
urge to use falling market conditions as evidence of a bad faith rejection
because this type of evidence does not help determine if a non-conformity
in the goods actually exists; only the terms of the contract and the relevant
commercial standards help in this regard. Further—assuming a nonconformity does exist—it is not bad faith to act on it in a falling market
because doing so is both honest and commercially reasonable. It is honest
because, having already established that a non-conformity exists, the
honesty prong of good faith should be treated as a nullity in this narrow
context. This is so because, even conceding that the falling market was a
factor that made the non-conformity intolerable, ultimately the decision to
reject was made in light of the fact that a non-conformity actually existed.
Further, particularly in the context of sophisticated parties, around which
the majority of this discussion revolves, it is commercially reasonable for a
party to consider the value for the goods when deciding whether to enforce
his right of rejection to the fullest and, indeed, it is generally commercially
reasonable for him to insist on the full benefit of his bargain by rejecting
under those circumstances.
Part IV also argues that, in addition to being unhelpful for the ultimate
resolution of contracts cases, permitting evidence of falling markets offers
little more than an alternate holding to the main holding in perfect tender
cases and, as such, detracts from the development of an efficient and
predictable law of contracts. Worse still, this uncertainty encourages
litigation by lending support to sellers in future cases who tender nonconforming goods in a falling market, only to cry foul when those goods
are rightly rejected. This in turn may have the perverse effect of denying
buyers the full benefit of the contracts they bargained for. Finally, Part V
concludes by testing the framework advocated in the Note against the facts
2009]
615
found in previous judicial decisions.
II. THE ACADEMIC BACKDROP
A. The Perfect Tender Rule
U.C.C. section 2-601 provides that in the case of one-shot contracts,
buyers may reject the whole “if the goods or the tender of delivery fail in
any respect to conform to the contract . . . .”2 The buyer in turn has a
corresponding duty “to accept and pay in accordance with the contract.”3
Courts have agreed that section 2-601 reflects a statutory revival of the
perfect tender rule.4 The purpose of the perfect tender rule, according to
Professor Corbin, is “to secure high performance standards” because
without the fear of a buyer’s ability to reject goods, sellers “would be
tempted to saddle buyers with unsuitable and defective goods.”5 Professor
Miniter provided a popular example of the unfairness that could result if
substantial performance were allowed instead of perfect tender:
A seller might find that it is significantly cheaper to make the
machinery capable of operation within a seven percent
deviation than to make it operate within only a five percent
deviation as required by the contract. He would be gambling
that the buyer could not make out a case for substantial
impairment independent of the contract and that any damages
that the buyer might prove would be less than his cost
savings in producing the inferior machine.6
The possibility of sub-par performance is considered to be more likely to
occur in the performance of one-shot contracts, where the absence of a
continuous commercial relationship gives the buyer less leverage as to
slightly non-conforming goods. For this reason, only one-shot contracts
are subject to the perfect tender rule, while installment contracts are subject
to a “substantial performance” requirement.7
2
U.C.C. § 2-601 (2002). Proper rejection entails not only a simple refusal to accept the goods,
but also notification to the buyer. If goods are not accepted when they should be, the refusal is said to
be “wrongful.” See U.C.C. § 2-703 (2002). If goods could have been rejected, but notice was
improperly given, then the rejection is said to be ineffective. See 67 AM. JUR. 2D Sales § 592 (2003).
3
U.C.C. § 2-301 (2002).
4
See, e.g., Ramirez v. Autosport, 440 A.2d 1345, 1349 (N.J. 1982) (“To the extent that a buyer
can reject goods for any nonconformity, the UCC retains the perfect tender rule.”).
5
8 CATHERINE M.A. MCCAULIFF, CORBIN ON CONTRACTS, CONDITIONS § 33.3 (Joseph M.
Perillo ed., 1999).
6
Francis A. Miniter, Buyer’s Right of Rejection, 13 GA. L. REV. 805, 826 (1979). Miniter’s
hypothetical is based on the facts of Axion Corp. v. G.D.C. Leasing Corp., 269 N.E.2d 664, 666, 668–
69 (Mass. 1971).
7
Installment contracts are dealt with in U.C.C. § 2-612 (2002). The remainder of this Note
discusses only single transaction contracts. For a useful commentary on installment contracts, see
616
[Vol. 42:611
Almost immediately after the first draft of the U.C.C. was approved,
commentators challenged the strength of its conception of the rule. For
instance, White and Summers are “skeptical of the real importance of the
perfect tender rule,” and argue that the law would be “little changed” if
courts required a substantial non-conformity for rejection.8 Then-Professor
Ellen Peters called the U.C.C.’s perfect tender rule “a mere shadow of its
formerly robust self.”9 Among the many statutory limitations on a buyer’s
right to insist on perfection are the fact that goods need not actually be
perfect, but rather only need to conform precisely to the terms of the
contract (subject to trade usage, course of performance, and course of
dealing), the seller’s right to cure, and—perhaps most significantly—the
obligation of good faith.10 Courts, however, have not been nearly as eager
to declare the perfect tender rule lifeless, and as Professor William
Lawrence has argued, “commentators have greatly exaggerated the extent
to which the limitations in Article 2 undercut the application of the perfect
tender rule.”11 Nevertheless, a brief sketch of the relevant limitations on
the buyer’s otherwise formidable right to reject goods is appropriate.
1. Distinguishing Between Conforming and Non-Conforming Goods
a. The Perfection Misnomer
Professor Williston points out that the perfect tender rule “is somewhat
of a misnomer” because the goods do not have to be literally perfect, but
must merely conform to the terms of the contract.12 The terms of the
contract include both written specifications and supplemental terms that
are inferred from trade usage, course of dealing, and course of
performance. The more specificity that the parties choose to use in the
language of their contract, the less they will have to supplement the
understanding of what was to be tendered against more ambiguous
concepts such as trade usage. This is a simple point yet it is often
overlooked. In essence, parties control their own destiny with respect to
the level of perfection required. Parties should be able to bargain for all
JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE 302–05 (West Publishing Co.,
4th ed. 1995).
8
WHITE & SUMMERS, supra note 7, at 300–01.
9
Ellen A. Peters, Remedies for Breach of Contracts Relating to the Sale of Goods Under the
Uniform Commercial Code, 73 YALE L.J. 199, 206 (1963).
10
Other asserted limits on the perfect tender rule include the fact that installment contracts are
dealt with in an entirely different section, section 2-504, which provides that an improper shipment
contract that causes a late delivery is grounds for rejection only if “material delay or loss ensues.”
U.C.C. § 2-504 (2002). Finally, courts may manipulate otherwise acceptable revocations for minor
defects under the guise of some other procedural device such as failure to make a proper rejection. See
WHITE & SUMMERS, supra note 7, at 301.
11
William H. Lawrence, The Prematurely Reported Demise of the Perfect Tender Rule, 35 U.
KAN. L. REV. 557, 558 (1987).
12
14 RICHARD A. LORD, WILLISTON ON CONTRACTS § 40:6 (4th ed. 2000).
2009]
617
that they want in a transaction. If their negotiations are successful, then
courts should have no qualms holding sellers to produce exactly what they
promise. Parties that choose to be less descript in the terms they use to
reflect that which is to be tendered may find negotiations go smoother;
however, this approach leaves more latitude to determine what is and what
is not reasonably implied within the definition that the parties did select
after the fact.
b. Commercial Practices Help Define What Has to Be Tendered
Often commercial practices play a significant role in defining the
required specifications of a particular good. White and Summers refer to
these factors as “[a]dditional restrictions” on the perfect tender rule.13 In
fact, it is more helpful to think of them merely as establishing the terms of
the contract in cases where the parties did not exercise enough clarity
through their own writings. In other words, these concepts do not change
the perfect tender rule, they merely shape the requirements of the contract
in a way that makes what at first appeared to be a breach actually turn out
to be conforming tender.14 An example is when a contract specifies
delivery of twelve items, but industry custom is that twelve means
anywhere between eleven and thirteen. Under these facts, a delivery of
eleven would not invoke the perfect tender rule—not because of an
“exception” to the rule, but rather because eleven is a conforming tender in
this industry. Prior commercial practices can be disclaimed, but this
requires clarity and specificity.15
c. The Debate over “Trivial Defects”
Many commentators have suggested that buyers should not be able to
reject goods for “insignificant” or “trivial” defects. For example, Professor
Robert Summers claims that “a buyer who openly seizes upon trivial
defects to justify his rejection . . . admitting all along that he is rejecting the
goods because the price has gone down . . . is certainly [acting in]
commercial bad faith.”16 Courts, on the other hand, have shown a
willingness to enforce the perfect tender rule more vigorously and allow
13
WHITE & SUMMERS, supra note 7, at 300–01.
See John A. Sebert, Jr., Rejection, Revocation, and Cure Under Article 2 of the Uniform
Commercial Code, 84 NW. U. L. REV. 375, 386–87 (1990).
15
See U.C.C. § 2-202 cmt. 2 (2002) (commercial practices become an element of the meaning of
the words used “[u]nless carefully negated”).
16
Robert S. Summers, “Good Faith” in General Contract Law and the Sales Provisions of the
Uniform Commercial Code, 54 VA. L. REV. 195, 205–06 (1968); see also Lawrence, supra note 11, at
570 (“Many commentators have praised section 2-508(2) as a desirable provision designed to prevent
buyers from rejecting goods with trivial nonconformities in order to escape bargains that become
unfavorable because the market for the goods falls.”). But see HOWARD O. HUNTER, MODERN LAW OF
CONTRACTS § 11:11 (2008) (“Technically, any failure, however small, is a nonconformity that justifies
rejection under § 2-601.”).
14
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[Vol. 42:611
buyers to reject even for minor or trivial defects. For instance, in DeJesus
v. CAT Auto Tech Corp., a New York court rejected White and Summer’s
view that substantial performance should be the standard, stating that
“New York has not adopted this view, and continues to subscribe to the
perfect tender rule,” which the court described as requiring “exact
performance.”17 Likewise, in KCA Electronics, Inc. v. Legacy Electronics,
Inc., a California appellate court ruled that “the perfect tender rule imposes
‘a very high level of conformity’ to the contract on sellers, allowing buyers
to ‘reject a seller’s tender for any trivial defect, whether it be in the quality
of the goods, the timing of the performance, or the manner of delivery.’”18
Some commentators argue these statements are dicta, since the defects
in many of the cases containing such language are arguably not
insignificant.19 While this may be true in some cases, there remains ample
authority in many jurisdictions to support a buyer’s absolute right of
rejection as a rule of law. For instance, in DeJesus, the buyer had ordered
gift certificates to be distributed to its employees. The court upheld the
buyer’s rejection due to the fact that “the paper was different, and the
chosen sample contained a decorative border, whereas the finished product
did not.”20 And in KCA Electronics, which involved the delivery of
canopies designed to allow for the stacking of computer chips, the court
held that six percent of the delivered parts lacking uniform features was
sufficient to allow the buyer to reject the whole.21
Courts seem particularly likely to allow rejection based on minor nonconformities in cases where the defect goes to a term expressly agreed to
by the parties, or where it is clearly important to the buyer. In Texas
Imports v. Allday, the parties contracted for the sale of forty-nine cattle.22
The court ruled that ten of the cattle being unsound provided sufficient
basis to permit the buyer to reject all of them.23 This was true in spite of
the fact that there was no indication in the record that the buyer had been
harmed by the tender of ten less sound animals than originally contracted
for, as well as circumstantial evidence indicating that the buyer had
17
DeJesus v. CAT Auto Tech Corp., 615 N.Y.S.2d 236, 238 (N.Y. Civ. Ct. 1994); see also Y&N
Furniture Inc. v. Nwabuoku, 734 N.Y.S.2d 382, 384 (N.Y. Civ. Ct. 2001) (“The buyer’s right,
generally, to reject the goods for any nonconformity, even one that is trivial, is known as the ‘perfect
tender rule []’ . . . .”).
18
KCA Elecs., Inc. v. Legacy Elecs., Inc., No. G037285, 2007 WL 2137959, at *1 (Cal. Ct. App.
July 26, 2007).
19
WHITE & SUMMERS, supra note 7, at 301–02 n.6; see also Sebert, supra note 14, at 384–85.
20
DeJesus, 615 N.Y.S.2d. at 237. The court also noted that two of the eight certificates had
colors immediately outside the borders but that one was “slightly noticeable” and the other “noticeable
only upon close inspection.” Id.
21
KCA Elecs., 2007 WL 2137959, at *2.
22
Tex. Imports v. Allday, 649 S.W.2d 730, 732–33 (Tex. App. 1983).
23
Id. at 738.
2009]
619
24
overbought. In another case, a car buyer was permitted to reject tender of
a car that did not have a spare tire.25 In that case, the court noted that the
buyer was a traveling salesman who traveled extensively in his trade and
the spare tire was important to him for safety reasons.26
Part of the problem fueling the disagreement between courts and
commentators may be a matter of mere terminology. Buzz words such as
“insignificant” or “trivial” do little to advance the analysis of a defect. A
close reading of the case law confirms that a particular defect that is trivial
can make goods non-conforming, or may be inadequate to make them nonconforming, depending on a close analysis of what was actually contracted
for. A defect may be small (and thus “trivial” under lay usage), yet if it
goes to an important component of the good, such as the spare tire to the
traveling salesmen, then it should render that good non-conforming.
Another small (trivial) defect that does not affect an important component
of the tendered good does not make the good non-conforming. This is not
because there is some sort of de minimus exception for trivial defects, but
rather, because such a defect does not impinge on the bargain the parties
struck, and therefore does not make the item legally non-conforming.27
For the duration of this Note, any defect—small, nitpicky, and, yes, even
trivial—which goes to the contractually required specifications and thus, if
unsatisfied, would permit a buyer to reject will be referred to as “legally
significant.” Any non-conformity that is insufficient to trigger a right of
rejection—again, not because of the small size of the defect, but because it
does not affect what was agreed to be delivered in any meaningful way—
will be referred to as “legally insignificant.”
2. Seller’s Right to Cure
Section 2-508 of the U.C.C. gives sellers a limited right to cure nonconformities in the goods they tender, thereby maintaining the buyer’s
obligation to accept pursuant to the terms of the contract.28 This has been
called one of the “most significant new intrusion[s] on the perfect tender
rule”; however, there remain “substantial uncertainties” about how to apply
it.29 Many commentators talk of the right to cure as though it represents a
24
For example, the buyer did not exercise his right to reject all the cattle, nor did he limit his
rejection to the ten non-conforming cattle. Instead, he accepted twenty-seven and rejected twenty-two.
See id. at 738; see also Sebert, supra note 14, at 385–86 (discussing the buyer’s probable motive in
Texas Imports).
25
Colonial Dodge, Inc. v. Miller, 362 N.W.2d 704, 705 (Mich. 1984).
26
Id. at 706–07.
27
An example of this can be seen in Fanok v. Carver Boat Corp., where the buyer of a yacht tried
to reject for scratches on the kitchen table, dirt on the carpet, and master bath shower doors that “rattle
a lot when underway.” 576 F. Supp. 2d 404, 418 (E.D.N.Y. 2008). This attempted rejection was made
only after the entire yacht had been destroyed by an unexplained fire. Id. Not surprisingly, the court
found the alleged defects insufficient under these facts. Id. at 406.
28
See U.C.C. § 2-508 (2002).
29
Sebert, supra note 14, at 389.
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[Vol. 42:611
drastic limit on the perfect tender rule. But Professor Lawrence argues that
these statements exaggerate the practical effect of the cure provision.30
First, section 2-508(1) only allows a seller to cure defects if it can do so
“within the contract time.”31 Therefore, practically speaking, this section is
applicable only when the seller tenders goods early. As such, Professor
Lawrence argues that it is “not particularly remarkable in light of prior law
and business practices.”32 The more significant right to cure is found under
section 2-508(2), which provides sellers additional reasonable time to cure
if they “had reasonable grounds to believe” that their initial nonconforming tender would be acceptable.33 The comment suggests that the
drafters intended for this to be a narrow exception.34 Professor Robert
Nordstrom has argued that this subsection was only intended to protect
sellers who knew of the defect in their goods, but nonetheless had reason to
believe that the goods would still be accepted by the buyer.35 At least one
court has rejected this view, and other commentators—including White
and Summers—have advocated for broader applicability of section 2508(2).36 However, whatever standard is used to invoke section 2-508(2),
once it is successfully invoked, the access to additional time is limited, and
as such makes it a difficult provision for sellers to rely on.37 Finally, and
perhaps most significantly, under either subsection of 2-508, if a seller is
unable (or unwilling) to cure the defect, then the buyer’s rejection stands as
valid.38 In other words, the buyer either gets its perfect tender or it gets to
reject; in this sense the right to cure is hardly a limit on the effectiveness of
30
See Lawrence, supra note 11, at 568.
U.C.C. § 2-508(1).
32
Lawrence, supra note 11, at 563.
33
U.C.C. § 2-508(2).
34
“Such reasonable grounds can lie in prior course of dealing, course of performance or usage of
trade as well as in the particular circumstances surrounding the making of the contract.” U.C.C. § 2508 cmt. 2; see also Lawrence, supra note 11, at 564 (arguing that although the comment does not
purport to provide an exhaustive list of things that would form the basis for a party to reasonably
believe his non-conforming goods would be accepted, it “tends to suggest a narrow range of
appropriate criteria”).
35
ROBERT J. NORDSTROM, HANDBOOK OF THE LAW OF SALES 321 (West Publishing Co. 1970).
36
See Joc Oil USA, Inc. v. Consol. Edison Co., 434 N.Y.S.2d 623, 632 (N.Y. Sup. Ct. 1980).
White and Summers think that this remedy should be available if a seller can show (1) that he was
ignorant of the defect despite his good faith and prudent business behavior or (2) he had some reason to
believe that the goods would be acceptable. WHITE & SUMMERS, supra note 7, at 324. In contrast,
Professor Hawkland focuses on the size of the initial defect, reasoning that a seller should be able to
invoke section 2-508(2) if “he can do so without subjecting the buyer to any great inconvenience, risk
or loss.” William D. Hawkland, Curing an Improper Tender of Title to Chattels, 46 MINN. L. REV.
697, 724 (1962). See generally Michael A. Schmitt & David Frisch, The Perfect Tender Rule—An
“Acceptable” Interpretation, 13 U. TOL. L. REV. 1375 (1982) (surveying various attempts to reconcile
the perfect tender rule with the cure provisions).
37
See White & Summers, supra note 7, at 322 (stating that cure can only be made within a
“reasonable” period of time).
38
See Lawrence, supra note 11, at 567–68 (“The buyer’s right to exact seller performance under
the sales contract is not diminished by the right to cure, except for an extension of time [under § 2508(2)].”).
31
2009]
621
rejection from the buyer’s perspective.
3. Right to Reject Must Be Exercised in Good Faith
All aspects of the performance of a contract must be performed in
“good faith.”39 Since the rejection of goods is an aspect of performance,
rejection—even if otherwise rightful—must be performed in good faith.40
Professor Lawrence believes that of all the so-called “exceptions” to the
perfect tender rule, the good faith requirement is the most important (and,
from his perspective, the most underutilized).41 Before examining why
Professor Lawrence feels this way, it is important to provide some general
background on the concept of good faith.
B. The Duty of Good Faith in Performance
The general obligation of good faith in the performance of contracts is
a relatively new concept.42 Section 1-304 of the U.C.C. provides that
“[e]very contract or duty within [the Uniform Commercial Code] imposes
an obligation of good faith in its performance and enforcement.”43 Under
the current Article I, good faith is defined as “honesty in fact and the
observance of reasonable commercial standards of fair dealing.”44 The
duty of good faith in performance has been hailed as “possibly the single
most significant doctrinal development in American contract law over the
past fifty years.”45 A full review of the academic literature on the general
obligation of good faith in performance under American contract law is
beyond the scope of this Note, although ample literature does exist.46
39
U.C.C. § 1-304 (2008).
See Lawrence, supra note 11, at 571 (“Invoking the right to reject avoids [a buyer’s]
responsibilities and thus can be exercised legitimately only when it is done in good faith.”); see also
Linda J. Rusch, Qualifications on Perfect Tender Rule, in 2 WILLIAM D. HAWKLAND, UNIFORM
COMMERCIAL CODE SERIES § 2-601:3 (2009) (“[T]here is no doubt that the buyer is under an
obligation to act in good faith when he rejects . . . .”).
41
42
See Harold Dubroff, The Implied Covenant of Good Faith in Contract Interpretation and GapFilling, 80 ST. JOHN’S L. REV. 559, 571 (2006).
43
U.C.C. § 1-304.
44
Id. § 1-201(20) (2008). Under the U.C.C.’s prior Article I, “good faith” was generally defined
to mean only “honesty”; however, Article II has always required merchants to conform with reasonable
commercial standards of fair dealing in the trade. See U.C.C. §§ 1-201(19) (2000), 2-103(1)(b) (2002).
45
Sebert, supra note 14, at 383; see also Robert S. Summers, The General Duty of Good Faith—
Its Recognition and Conceptualization, 67 CORNELL L. REV. 810, 810 (1982).
46
See generally Eric G. Andersen, Good Faith in the Enforcement of Contracts, 73 IOWA L. REV.
299 (1988); Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good
Faith, 94 HARV. L. REV. 369 (1980) [hereinafter Burton, Good Faith I]; Steven J. Burton, Good Faith
Performance of a Contract Within Article 2 of the Uniform Commercial Code, 67 IOWA L. REV. 1
(1982) [hereinafter Burton, Good Faith II]; Steven J. Burton, More on Good Faith Performance of a
Contract: A Reply to Professor Summers, 69 IOWA L. REV. 497 (1984) [hereinafter Burton, Good Faith
III]; Steven J. Burton, Good Faith in Articles 1 and 2 of the U.C.C., 35 WM. & MARY L. REV. 1533
(1994) [hereinafter Burton, Good Faith IV]; Thomas A. Diamond & Howard Foss, Proposed Standards
for Evaluating When the Covenant of Good Faith and Fair Dealing Has Been Violated, 47 HASTINGS
40
622
[Vol. 42:611
Instead, this Note provides a brief overview of a few aspects of the debate
which are most pertinent to answering the questions posed in Part I.
1. Defining Good Faith
The most logical place to begin deciphering the term good faith is to
look to the intent of the original U.C.C. drafters. In an early draft of the
U.C.C., the drafters defined good faith to include both honesty and the
observance of reasonable commercial standards. A proposed comment
would have explained the standard as requiring the observance of
“commercial decencies.”47 By the time the first version of the U.C.C. was
approved, the definition had been pared down to just “honesty” and the
reference to commercial decencies had been abandoned.48 Professor
Clayton Gillette points out that even without this language, the term
“honesty” itself is susceptible to a host of meanings ranging from a very
narrow view of honesty in its literal sense, to more liberal conceptions of
the term which might themselves include forms of improper commercial
behavior deemed dishonest in spirit.49 A contrary version of the original
drafting suggests that the commercial standards language was removed at
the bequest of practitioners specifically because it was viewed as an
“unnecessarily broad, moralistic imperative.”50 Even if the original
drafting had produced a clear “intent of the drafters,” the inquiry would
still be incomplete. This is true both because (as discussed above) the most
recent version of the U.C.C. does restore the element of “reasonable
commercial standards” to all parties, and because, regardless of what the
U.C.C.’s drafters believed, it was the individual state legislatures that
ratified the U.C.C. and therefore their intent that really matters.51
In his seminal piece on good faith, Professor Robert Summers argues
that a definition of good faith cannot be verbally conceptualized in any
meaningful way, but rather can be understood only as an “excluder” that
L.J. 585 (1996); Dubroff, supra note 42; E. Allan Farnsworth, Good Faith Performance and
Commercial Reasonableness Under the Uniform Commercial Code, 30 U. CHI. L. REV. 666 (1963);
Clayton P. Gillette, Limitations on the Obligation of Good Faith, 1981 DUKE L.J. 619 (1981); Seth
William Goren, Looking for Law in All the Wrong Places: Problems in Applying the Implied Covenant
of Good Faith Performance, 37 U.S.F. L. REV. 257 (2003); Howard O. Hunter, The Growing
Uncertainty About Good Faith in American Contract Law, 20 J. CONT. L. 31 (2004); Christina L.
Kunz, Frontispiece on Good Faith: A Functional Approach Within the UCC, 16 WM. MITCHELL L.
REV. 1105 (1990); Dennis M. Patterson, A Fable from the Seventh Circuit: Frank Easterbrook on
Good Faith, 76 IOWA L. REV. 503 (1991); Summers, Good Faith, supra note 16; Summers,
Recognition and Conceptualization, supra note 45; Michael P. Van Alstine, Of Textualism, Party
Autonomy, and Good Faith, 40 WM. & MARY L. REV. 1223 (1999).
47
Gillette, supra note 46, at 623 (citing U.C.C. § 1-203 cmt. (May 1949 Draft)).
48
However, as discussed, supra note 44, Article II has always required merchants to conform
with reasonable commercial standards of fair dealing in the trade.
49
Gillette, supra note 46, at 621–22.
50
Id. at 624.
51
Id. at 626.
2009]
623
52
excludes a litany of identifiable instances of bad faith.
Professor
Summers believes that this is the only conception that can provide the
adequate degree of malleability for courts to “do justice.”53 According to
Professor Summers, courts should condemn certain types of action as bad
faith “even when the objectionable conduct is within the letter of the
contract . . . .”54 Professor Summers was concerned that judges were
distorting more definite areas of contractual jurisprudence in order to reach
the just result in difficult cases. This, he argued, created fictions that
undermined legal principles and subverted predictability. Instead, he
advocated giving courts a flexible doctrine that they could apply at their
own discretion and thus leave other contractual doctrines undisturbed.55
In an influential series of articles, Professor Steven Burton faulted
Summers’s conception for being too nebulous.56 Instead, he proposed a
more concrete model. Professor Burton believes that whenever a party is
entrusted with discretion in contract performance that affects the other
party’s benefit, such discretion cannot be exercised to recapture
opportunities that were foregone by entering into the contract.57 This,
Burton argues, would be bad faith. Any exercise of discretion to recapture
opportunities which were not foregone as a result of the contract can be
considered good faith.58 This necessarily requires courts to determine the
intent a party had when undertaking a given course of action because the
same exact type of conduct could be deemed good faith or bad faith, based
on the court’s findings as to why the party behaved the way it did.59
Though conceding that there are “well-known difficulties” in determining
subjective intent, Burton advocated a subjective inquiry until his most
recent article in which he candidly changes course and advocates for an
objective inquiry into what caused the buyer’s conduct.60
Not everyone agrees with such sweeping definitions of good faith as
Summers, Burton, and others have advocated. Professor Gillette argues
that good faith should be little more than an “ancillary exhortative or
52
Summers, Good Faith, supra note 16, at 196.
Id. at 198.
Id. at 239.
55
See id. at 198.
56
See Burton, Good Faith I, supra note 46, at 369–70 & n.5; Burton, Good Faith II, supra note
45, at 1–3; Burton, Good Faith III, supra note 46, at 497; Burton, Good Faith IV, supra note 46, at
1535–36. Professor Summers in turn has faulted Professor Burton’s conception for providing little
substance to the analysis. See Summers, Recognition and Conceptualization, supra note 46, at 810.
57
Burton, Good Faith I, supra note 46, at 372–73.
58
Id. at 373.
59
See Burton, Good Faith III, supra note 46, at 502–03 (stating that an “act” taken by a party can
be “legally neutral” when deciding whether there was a breach and that, in order to make such a
determination, the court must determine “whether the discretion-exercising party used its discretion for
an improper purpose”).
60
See Burton, Good Faith IV, supra note 46, at 1562 n.131.
53
54
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61
precatory function that carries no legal sanctions.” These views mark a
significant and—with courts weighing in on both sides—unresolved debate
over whether it can ever be bad faith to exercise an option that is provided
by the written terms of the contract. This debate can roughly be broken
into two camps: the contextualist view and the neoformalist view.62
a. The Contextualist View
Proponents of the contextualist view believe that good faith should
have independent substantive content.63 This view tries to encourage a
cooperative relationship between the parties in which both sides make
efforts to protect the reasonable expectations of the others. Professor
Summers’s view fits within this group. Summers believes that good faith
should prevent parties from declaring technical breaches.64 In other words,
even if they technically had the right to declare a breach, parties should
forgo that right in certain circumstances out of consideration for the other
party.
A district court, applying Utah law, articulated an expansive duty that
went beyond the express terms of the agreement. Citing a Utah Supreme
Court decision, the court stated:
An examination of express contract terms alone is
insufficient to determine whether there has been a breach of
the implied covenant of good faith and fair dealing. To
comply with his obligation to perform a contract in good
faith, a party’s actions must be consistent with the agreed
common purpose and the justified expectations of the other
party. The purpose, intentions, and expectations of the
parties should be determined by considering the contract
language and the course of dealings between and conduct of
the parties.65
Although the court found that the duty of good faith had not been breached
in this case, its statement that the “express contract terms alone is
insufficient”66 demonstrates a contextualist view of striving to honor the
spirit of the agreement even if it is contrary to the actual language used to
61
Gillette, supra note 46, at 665.
HOWARD O. HUNTER, MODERN LAW OF CONTRACTS § 8:8 (2009).
Id.
64
See Summers, Good Faith, supra note 16, at 234–35; see also Gillette, supra note 46, at 619–20
(“[Summers] proposes that good faith be defined to require commercial actors to forbear from
declaring technical breaches.”).
65
A.I. Trans. v. Imperial Premium Fin., Inc., 862 F. Supp. 345, 348 (D. Utah 1994) (citing St.
Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 200 (Utah 1991)).
66
Id.
62
63
2009]
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67
express it.
b. The Neoformalist View
Proponents of the neoformalist view argue that good faith is meant
only to exclude bad faith and fill gaps, and should not impose affirmative
requirements beyond the terms of the agreement. As Professor Dubroff
posits, “How can a party be said to be performing or enforcing in bad faith
when it does no more or less than what was expressly agreed to and
understood by the parties?”68 Neoformalists value respecting the allocation
of risks which the parties themselves bargained for. Professor Dubroff
suggests that expansive good faith conceptions are “unprincipled and may
lead to erroneous results in determining rights under the contract.”69
In addition to concerns about respecting the private parties’ bargain,
there is another more public goal of encouraging the development of a
body of commercial law which is clear and predictable. Professor Gillette
argues that judicial usage of good faith language “indicates lack of
precision in the court’s reasoning and detracts from the judicial
development and comprehension of the [Uniform Commercial] Code.”70
He argues that it has also contributed to uncertainty in commercial contract
disputes. Professor Dubroff agrees that these expansive good faith
conceptions “create an environment for deciding cases that may be
unnecessarily vague and rootless” and their application “can be a confusing
and unsatisfying business.”71
The Seventh Circuit issued an opinion that closely expresses a
neoformalist viewpoint.72 In that case, which involved a commercial bank
enforcing a particularly harsh contract clause at an unexpected and
inopportune time for the borrower, Judge Easterbrook wrote:
Firms that have negotiated contracts are entitled to enforce
them to the letter, even to the great discomfort of their trading
partners, without being mulcted for lack of “good faith”.
Although courts often refer to the obligation of good faith
that exists in every contractual relation, this is not an
invitation to the court to decide whether one party ought to
67
Another example of this type of reasoning can be seen in Baker v. Ratzlaff, where the court
found a seller to be in breach of the good faith obligation because he declared the buyer in breach
“upon a technical pretense.” 564 P.2d 153, 156 (Kan. Ct. App. 1977). Although the terms of their
agreement gave the seller the right to declare a breach for the buyer’s non-payment of previous loads,
the court was moved by evidence that the market for goods rose sharply and the seller had resold the
goods to another party at a higher price. Id. at 156–57.
68
Dubroff, supra note 42, at 602.
69
Id. at 597.
70
71
Dubroff, supra note 42, at 584, 587.
72
Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357 (7th Cir.
1990).
626
[Vol. 42:611
have exercised privileges expressly reserved in the document.
“Good faith” is a compact reference to an implied
undertaking not to take opportunistic advantage in a way that
could not have been contemplated at the time of drafting, and
which therefore was not resolved explicitly by the parties.73
According to Judge Easterbrook, since the parties had addressed the
disputed conduct in their contract (by agreeing that the bank possessed
such a right), the issue fell beyond the scope of good faith.74
2. Good Faith as an Excluder
In spite of the ongoing debate over whether good faith itself has any
independent substance, courts have generally agreed that at the very least,
good faith requires the absence of bad faith. This view is based on
Professor Summers’s “excluder” definition, and results from that fact that
acts performed in bad faith are not allowed under contracts governed by
the U.C.C.75 Then-Judge Scalia took this view in a D.C. Court of Appeals
case in which he stated:
We agree with the observation of Professor Summers that the
concept of good faith in the performance of contracts is an
“excluder.” It is a phrase without general meaning (or
meanings) of its own and serves to exclude a wide range of
heterogeneous forms of bad faith. In a particular context the
phrase takes on specific meaning, but usually this is only by
way of contrast with the specific form of bad faith actually or
hypothetically ruled out.76
Judge Scalia added that “even the permissible act performed in bad faith is
a breach only because acts in bad faith are not permitted under the
contract.”77
The remainder of this Note focuses solely on the excluder issue in the
falling market context. In other words, this Note examines whether
rejection of goods with a minor defect in a falling market should be
considered bad faith, and thus disallowed under either the contextualist or
the neoformalist model. To perform this search for bad faith, we will put
aside the academic formulations of what good faith should be, and define
bad faith more simply as excluding conduct which fails to satisfy the
73
Id. at 1357 (internal citations omitted).
Id.; see also Wells Fargo Bank v. Citizens Bank of Tex., 181 S.W.3d 790, 804 (Tex. App.
2005) (“Nor can a bank be said to violate its ‘obligation of good faith’ under [former U.C.C. § 1-203] if
it acts in accordance with the requirements of the U.C.C.”).
75
This is true because regardless of what good faith does mean, it certainly does not mean bad
faith.
76
Tymshare, Inc. v. Covell, 727 F.2d 1145, 1152 (D.C. Cir. 1984).
77
Id. at 1150 n.3.
74
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627
U.C.C.’s requirement of “honesty” and conformity with “reasonable
commercial standards of fair dealing.”78 The honesty requirement has been
interpreted as a subjective standard.79 For instance, in the context of
buyers exercising their right to reject goods, they must do so out of actual
dissatisfaction with the tender. By contrast, “commercially reasonable
standards of fair dealing in trade” is meant to be an objective measure of
conformity based on trade usage, course of dealing, and course of
performance.80 This inquiry takes into account the reasonable business
norms in a given context. For example, in Hubbard v. UTZ Quality Foods,
the court held that a commercial buyer of potatoes, which the contract
required to be within a certain color range, did not reject in bad faith when
he failed to measure the potatoes’ color with a machine before rejecting on
the basis of poor color because, even though the machine would have been
much more accurate, it was reasonable within the potato industry to use
visual inspections.81
C. Good Faith in Perfect Tender Cases
Having sketched a brief overview of good faith, one can proceed to
examine how it should be applied in perfect tender cases. Professor
Lawrence states that good faith “is the most important provision to ensure
that the perfect tender rule is applied as a just standard.”82 Although he
was generally a strong proponent of perfect tender (as opposed to the
substantial performance standard advocated by many scholars), he
nonetheless argued that good faith should act as an important restraint on
the rule. Specifically, Professor Lawrence argues that “[a] buyer’s
insistence upon rejection for a minor contract deviation in order to avoid an
unfavorable bargain is an unfair use of buyers’ rejection rights that can be
attacked best through utilization of the good faith obligation of the
buyer.”83 Lawrence believes that a buyer whose true subjective reason for
rejection is to escape a bad bargain is acting in bad faith because their
conduct fails the honesty requirement of good faith.84
Other commentators have concurred that good faith should preclude
rejection in order to escape from a bad bargain, however, unlike Professor
Lawrence they do not believe it would be “dishonest” for a buyer to
behave this way. For instance, Summers believes that it should be bad
faith for a buyer to reject for a pre-textual reason, however, he argues
78
See U.C.C. § 1-201(20) (2008).
Burton, Good Faith IV, supra note 46, at 1539; see also Schmitt & Frisch, supra note 36, at
1397 (“The good faith required of a consumer purchaser is mere honesty in fact—a subjective test.”).
80
Burton, Good Faith IV, supra note 46, at 1539.
81
Hubbard v. UTZ Quality Foods, Inc., 903 F. Supp. 444, 445–51 (W.D.N.Y. 1995).
82
83
Id. at 571.
84
Id.
79
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that—at least with a party who conceded his ulterior motive—“[s]ome
judges may say that such conduct simply is not in bad faith, for it is not
dishonest.”85 Likewise, Professor Sebert concludes:
While I have no difficulty concluding that a merchant buyer
who rejects because of a clearly insubstantial nonconformity
in a falling market has failed to comply with the objective
good faith standard . . . I am not sure that that a nonmerchant
buyer’s attempt to use the perfect tender rule to escape a bad
bargain is, or should be deemed, “dishonest” within the
prohibition of the subjective standard of good faith.86
Professor Sebert makes his conclusion based on the fact that failure to
satisfy the perfect tender rule does in fact constitute a breach.87
Not all commentators, however, agree that a falling market should be
viewed as evidence of a bad faith rejection on the basis of a minor nonconformity. Professor Gillette argues that since the buyer has caused
neither the non-conformity nor the falling market he should have no
obligation to abstain from enforcing his rights to the fullest extent. Instead,
he argues “that initial, trivial breach emerges from materialization of a risk
which the seller assumed, presumably because he believed he was in a
superior position to control the occurrence of the risk.”88 Professor Gillette
believes the effects of this would force contract parties into “forbearance
from self-interested action that conflicts with the interests of other
parties.”89
In addition, Professor Gillette believes this approach is more faithful to
the bargain the parties negotiated and, as such, provides clearer standards
of contractual interpretation for future disputes. While critics have
contended that buyers assume the risk of a falling market and, thus, their
rejection in this circumstance deprives the seller of the expected benefits of
the contract, Professor Gillette points out that it is equally true that the
seller has assumed the risk of failing to make conforming tender.90
Professor Gillette argues that “[m]aterialization of that risk should not be
avoided any more readily than materialization of the risk of market
decline.”91 Since there is no way that both parties will still receive the
expected value of their bargain in a falling market, it seems unclear why
the buyer should be held accountable for the occurrence of a risk he did not
control, while the seller is not held accountable for the occurrence of a risk
85
Summers, Good Faith, supra note 16, at 249–50.
87
See id. at 387 & n.77.
88
89
Id.
90
Id. at 655.
91
Id.
86
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that he and he alone controlled. If the seller had feared his ability to
deliver goods of a certain quality or within a certain specified time, he
could have struck his bargain differently.
Finally, Professor Gillette’s argument should not be taken to excuse a
buyer who claims a defect when none exists. This would be a breach of
the buyer’s obligation to accept conforming goods.92 Professor Gillette
merely points out that it would be “pointless” to also consider the actor’s
good or bad faith because “when courts speak of bad faith breaches, they
impose remedies based solely on the breach that are not connected to the
breacher’s good or bad motives.”93
III. JUDICIAL APPLICATION
A current U.C.C. treatise article describes the process of judicial
perfect tender analysis as a two part inquiry: “(1) Do the goods conform to
the contract? (2) If the answer to (1) is no, did the buyer reject in good
faith?”94 As the author points out, “Since the rejection of goods is a matter
of performance, there is no doubt that the buyer is under an obligation to
act in good faith.”95 In practice, courts tend to agree with this basic model.
For example, in GE Packaged Power v. Readiness Management Support,96
Readiness Management Support (“RMS”) was accused of bad faith
rejection of power generators built by GE. The court denied summary
judgment to GE citing two genuine issues of fact: “(i) whether the
generators conformed . . . and (ii) whether RMS believed the generators to
be nonconforming.”97 In the court’s view, ascertaining the buyer’s “belief”
regarding the conformity of the goods was a necessary precursor to
evaluating its’ right of rejection.98 Likewise, another court that had found
fabric to be non-conforming nonetheless speculated that if the buyer had
rejected for a pre-textual reason “its rejection would certainly not have
been in good faith.”99 A number of other cases confirm these results.100
Perhaps unavoidably, courts in these cases are forced to determine
whether buyers who reject are truly acting honestly. Since it is inherently
92
See U.C.C. § 2-301 (2002).
94
Rusch, supra note 40.
95
Id.
96
GE Packaged Power v. Readiness Mgmt. Support, 510 F. Supp. 2d 1124 (N.D. Ga. 2007).
97
Id. at 1134.
98
See id. at 1133–34 (stating that “[a] rejection of goods must be made in good faith” and “[t]o
reject goods in bad faith, a buyer must have no good-faith belief that the goods are conforming”).
99
Matrix Int’l Textiles, Inc. v. Jolie Intimates Inc., No. 316107/03, 2005 WL 1074774, at *6
(N.Y. Civ. Ct. May 5, 2005).
100
See, e.g., Clark v. Zaid, Inc., 282 A.2d 483, 484–85 n.1 (Md. 1971) (“The buyer’s judgment
[as to rejection of goods] would have to be exercised in good faith.”); Y&N Furniture Inc. v.
Nwabuoku, 734 N.Y.S.2d 382, 385 (N.Y. Civ. Ct. 2001) (“[T]he buyer’s rejection of the goods must be
made in good faith.”).
93
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difficult to know another party’s subjective motivations, courts have relied
on circumstantial evidence out of necessity. For instance, in Matrix
International Textiles v. Jolie Intimates, the buyer of fabric rejected
delivery, claiming it did not conform to the contract specifications.101 The
seller suggested that this reason was pre-textual and that the buyer was
simply trying to avoid delivery because it was discontinuing the operations
of the division that would have used it. The court noted that the buyer had
subsequently ordered the item from another supplier at a higher price as
circumstantial evidence that rebutted the seller’s claim.102 In another case
challenging the rightfulness of a buyer’s rejection, the court ruled for the
buyer after finding that the seller “has failed to convince [the court] that
[the buyer’s] motivation for rejecting his potatoes was to obtain similar
potatoes but at a reduced cost.”103 The court cited a lack of “compelling
evidence” that the buyer had purchased from other suppliers at lower
market prices after rejecting the seller’s product.104
Several courts have suggested that evidence of falling market
conditions prior to the buyer’s rejection may be used as circumstantial
evidence that the buyer rejected for a dishonest purpose. One leading case
is Joc Oil USA v. Consolidated Edison Co. of New York105 In that case, Joc
Oil contracted to sell a large quantity of oil with a specified maximum
sulfur content to Con Ed. When the oil arrived it contained too much
sulfur. By the time Con Ed rejected delivery the time for performance had
passed, and although Joc Oil offered to cure one day later, Con Ed declined
this offer. In the subsequent contract suit, Joc Oil alleged that Con Ed had
refused to accept the replacement delivery because foreign market forces
had caused the value of the oil to decline and that Con Ed was attempting
to escape from a bad deal.106 The court seemed to agree, finding that
“[t]here can be no doubt that this dispute would not exist if the market had
risen at the time.”107 The precise issue on which the court decided the case
was not, however, whether the rejection itself was in bad faith, but rather
whether Joc Oil had a reasonable basis to believe that their initial delivery
would be accepted and therefore, under U.C.C. section 2-508(2), should
have been allotted additional time beyond the specified time of
performance to make cure. Concluding that “[i]t is difficult to believe that
a construction rewarding culpability and penalizing innocence is
101
Matrix Int’l Textiles, 2005 WL 1074774, at *1,*3.
Id. at *6.
Hubbard v. UTZ Quality Foods, Inc., 903 F. Supp. 444, 450 (W.D.N.Y. 1995).
104
Id.
105
Joc Oil USA, Inc., v. Consol. Edison Co., 434 N.Y.S.2d 623, 630 (N.Y. Sup. Ct. 1980).
106
See id. at 626 (noting the rise in spot oil purchase prices due to the Arab oil embargo and
indicating that the main source of contention between the parties appeared to be the price Con Ed
would pay for Joc Oil’s delivery).
107
Id. at 630.
102
103
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preferable, or consistent with the remedial intent of the creators of this
remedy,” the court found that Joc Oil did have a reasonable basis to believe
the oil would be accepted and therefore should have been given additional
time for cure.108
Although the court likely did not mean to suggest that falling market
conditions were evidence of bad faith rejection, its disjointed discussion of
good faith, culpability, and the underlying falling market make the opinion
ambiguous. Even on appeal, the New York Court of Appeals further
obscured the issue when it opined that “the premise [for Con Ed’s
argument] ignores the policy of the code to prevent buyers from using
insubstantial remediable or price adjustable defects to free themselves from
unprofitable bargains . . . .”109 At least one plaintiff’s lawyer has cited the
case for the proposition that “[t]he Court determined that the buyer used
the excuse of the higher sulfur content as a pretext for rejecting the
delivery and as an attempt to escape its bad bargain.”110
Other cases do seem to have explicitly endorsed the proposition that a
falling market for the goods can be used as evidence of a bad faith
motivation for rejection. For instance, in Neumiller Farms v. Cornett,111
Cornett and other small potato farmers in Alabama contracted to sell
potatoes suitable for “chipping” at a price of $4.25 per hundred-weight.
The buyer, a commercial potato broker, accepted the first several
shipments when the market value was $4.25 per hundred-weight, but when
the market price fell to $2.00 per hundred-weight, the buyer began
rejecting delivery claiming that the potatoes did not chip satisfactorily.112
Upon hearing evidence from the seller’s expert that the potatoes were
suitable in all respects, the court ruled that the buyer had breached by
rejecting delivery in bad faith. The court stated that “[t]he law requires
such a claim of dissatisfaction to be made in good faith, rather than in an
effort to escape a bad bargain.”113 Likewise, in Printing Center of Texas v.
Supermind Publishing, a court stated that “evidence of rejection of the
goods on account of a minor defect in a falling market would in some
instances be sufficient to support a finding that the buyer acted in bad faith
when he rejected the goods.”114 Finally, in Oil Country Specialists v.
Philipp Bros., a buyer rejected pipe that was required to meet specified
108
Id. at 630, 632.
T.W. Oil, Inc. v. Consol. Edison Co., 443 N.E.2d 932, 938 n.8, 940 (N.Y. 1982).
110
Trial Brief of Plaintiff Austrian Airlines, Austrian Airlines Oesterreichische Luftverkehrs AG
v. UT Fin. Corp., No. 04 Civ. 3854 (LAK) (S.D.N.Y. Feb. 20, 2008), 2008 WL 872782.
111
Neumiller Farms, Inc. v. Cornett, 368 So. 2d 272 (Ala. 1979).
112
Id. at 274.
113
Id. at 275; see also Baker v. Ratzlaff, 564 P.2d 153, 157 (Kan. Ct. App. 1977) (noting that
evidence of a buyer’s “hasty resale of the popcorn to another buyer at a price nearly double the contract
price, provided the trial court with ample evidence upon which to find an absence of good faith”).
114
Printing Ctr. of Tex., Inc. v. Supermind Publ’g Co., 669 S.W.2d 779, 784 (Tex. App. 1984).
109
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115
industry standards.
When the pipe did not conform, the buyer rejected
the entire inventory. After hearing evidence that a falling market made the
transaction “highly unfavorable” to the buyer, a jury concluded that the
buyer had rejected in bad faith.116 A Texas appeals court affirmed the
decision, finding that the buyer was entitled to reject “only if it did so in
good faith[, t]hat is, if it did so with honesty in fact or in keeping with the
observance of reasonable commercial standards of fair dealing in the
trade.”117 Unfortunately, the court did not specify which of these two
criteria the buyer had failed, instead concluding perfunctorily that the
evidence was legally and factually sufficient. Other cases suggest the same
result.118
Other courts have not been persuaded by evidence of falling market
conditions. One representative case is Austrian Airlines v. UT Finance. In
that case, Austrian Airlines agreed to sell a plane to UT Finance (“UTF”)
in a contract which required delivery by a specific date and recited that
time was of the essence.119 Austrian Airlines could not deliver the plane in
perfect condition on time and UTF rejected delivery, effectively denying
Austrian Airlines any chance to cure. Part of Austrian Airlines’
subsequent contract suit argued that UTF’s rejection was made in bad faith
because they had only done so to escape a bad bargain. Austrian Airlines
pointed to two facts in support of this argument. First, UTF had not yet
found a suitable secondary purchaser for the plane and thus there was no
practical need for UTF to insist on timely performance. Second, Austrian
Airlines pointed out that the plane had been ordered prior to the terrorist
attacks of September 11, and in the wake of the resulting turmoil on the
airline industry, the value of the plane to UTF had been reduced to twothirds of its expected value.120
The court was unmoved by Austrian Airlines’ evidence, and though it
stated that “[t]he Court assumes that UTF, quite understandably, was
motivated by the decline in market value,” it held that this was not in bad
faith.121 The court refused to read Joc Oil USA and similar cases as
establishing that subjective motivations could be dispositive of the issue of
115
Oil Country Specialists, Ltd. v. Philipp Bros., 762 S.W.2d 170, 172–73 (Tex. App. 1988).
Id. at 178.
117
Id.
118
For example, a New York district court opined that “[a]lthough it [is] true that the Code
generally obligates a buyer to act in good faith in rejecting goods, plaintiff has introduced no evidence
indicating that the defendants’ motivation in rejecting the fuel oil was a bad faith effort to escape the
bargain.” Warren Co. v. Olco Oil Co., No. 86-CV-660, 1988 WL 28940, at *3 (N.D.N.Y. Mar. 15,
1988); see also Matrix Int’l Textiles, Inc. v. Jolie Intimates Inc., No. 316107/03, 2005 WL 1074774, at
*6 (N.Y. Civ. Ct. May 5, 2005); Hubbard v. UTZ Quality Foods Inc., 903 F. Supp. 444, 451
(W.D.N.Y. 1995).
119
Austrian Airlines Oesterreichische Luftverkehrs AG v. UT Fin. Corp., 567 F. Supp. 2d 579,
582–83 (S.D.N.Y. 2008), aff’d, No. 08-4176-cv., 2009 WL 1940715 (2d Cir. July 2, 2009).
120
Id. at 581–82, 591–93.
121
Id. at 599–600.
116
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122
bad faith.
The court went on to opine that such a rule would not make
commercial sense.123 In the court’s view, UTF’s conduct was “entirely
reasonable” since the presence of defects was now even more significant to
the buyer than in a normal market.124 Noting the sophistication of the
parties, the court found “no reason not to give the buyer the benefit of its
bargain.”125 The UTF court’s decision was affirmed on appeal by the
Second Circuit in a brief opinion that referred to the lower court’s decision
as “careful,” “thorough,” and “well-reasoned.”126
Similarly, a California trial court prohibited a plaintiff from offering
proof of an “‘ulterior motive’” by the buyer when rejecting the goods.127
In KCA Electronics, the court focused strictly on the non-conformities
alleged—namely, that six percent of the small computer components
lacked the necessary uniformity—and based its decision to grant summary
judgment in favor of the buyer strictly on the defect.128 Not only did this
approach produce a rational and well-reasoned decision, but perhaps most
significantly, the absence of extraneous discussions regarding why the
seller thought the buyer had rejected the goods makes the opinion more
precise and helpful to businessmen and lawyers who will have to litigate
similar issues in the future.
IV. A NEW FRAMEWORK
A. Consideration of Falling Market Conditions Is Not Helpful in Deciding
Cases
1. A Falling Market Does Not Impact Whether a Defect Actually
Exists
Nothing within the text or comments of U.C.C. section 2-601 requires
any mental state on the part of either the buyer or the seller in order for the
perfect tender rule to apply.129 The rule is triggered “if the goods or the
tender of the delivery fail in any respect to conform . . . .”130 Hence, any
review of whether a good is or is not conforming is necessarily an
objective one. It is only the separate good faith obligation that contains the
122
Specifically, the court narrowly read Joc Oil USA to apply only in the context of determining a
seller’s reasonable basis to believe his goods would be accepted under the section 2-508(2) standard,
and it distinguished Neumiller Farms and Printing Center of Texas. Id. at 600.
123
Id.
124
Id. at 599.
125
Id. at 600.
126
See Austrian Airlines, 2009 WL 1940715, at *1–2.
127
July 26, 2007).
128
Id.
129
See U.C.C. § 2-601 (2002).
130
Id.
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[Vol. 42:611
requirement that the buyer reject the non-conforming tender with the right
state of mind. As such, inquiries into the conformity of the goods and the
good or bad faith of the rejection are two separate inquiries.131 A falling
market (arguably) is relevant to the latter, but not the former. The initial
objective determination of whether a defect is present should not be
affected by any external factors including the economy. If such factors are
to be taken into account at all, it should be within the context of the actor’s
good or bad faith.132
Any analysis of whether a good is objectively non-conforming must
begin with the terms of the contract. All descriptions of the good being
contracted for should be vigorously enforced. In addition, courts should
fill in the gaps by resorting to common trade usage and other established
commercial practices for the item purchased.133 In comparing what the
contract requires to be tendered and what was actually tendered, courts
should avoid falling into the trap of using buzz words such as “trivial,”
which does not aid in the analysis. A small defect that goes to the basis of
the bargain should be view as legally significant and should permit
rejection. By contrast, a defect that does not offend the basis of the bargain
should be viewed as legally insignificant and should not permit rejection,
even though it could be said to render the good defective under ordinary
usage.134 In this sense, this author does not disagree with Professor
Lawrence’s argument that buyers should not be able to reject for what he
calls “inconsequential deviations” or defects of “no actual importance to
the buyer.”135 This Note contends that the so-called “trivial defects” may
be consequential depending upon the circumstances and, in such cases,
buyers should not be restrained from acting upon those small but
consequential defects simply because the market for the goods has fallen.
This is consistent with the underlying goal of the perfect tender rule: to
“create[ ] an incentive for sellers to produce goods that conform to contract
specifications.”136
131
See supra Part III.
See, e.g., GE Packaged Power v. Readiness Mgmt. Support, 510 F. Supp. 2d 1124, 1134 (N.D.
Ga. 2007) (denying summary judgment based on two genuine issues of fact: (i) whether the generators
conformed . . . and (ii) whether [the buyer] believed the generators to be nonconforming”).
133
See U.C.C. § 1-303 (2008).
134
Compare Marlowe v. Argentine Naval Comm’n, 808 F.2d 120, 124 (D.C. Cir. 1986) (noting a
six day delay in delivering an airplane was enough to warrant rejection because time was of the
essence), and Vitol S.A., Inc. v. Koch Petroleum Group, L.P., No. 01CV2184(GBD), 2005 WL
2105592, at *9 (S.D.N.Y. Aug. 31, 2005) (“Since time was of the essence in the performance of the
parties’ contract, defendant’s late delivery violated the perfect tender rule because defendant’s ‘tender
of delivery fail[ed] in any respect to conform to the contract.” (alteration in the original)), with Burgess
Steel Prods. Corp. v. Modern Telecomms., Inc., 205 A.D.2d 344, 346 (N.Y. App. Div. 1994) (noting
that where plaintiff contended that time was not of the essence: “a trial is necessary to determine
whether the deadline contained in the contract was so inflexible that the plaintiff’s late performance
constituted a breach of a material element of the contract”).
135
See Lawrence, supra note 11, at 572.
136
Id. at 578.
132
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2. If a Defect Does Exist, a Party Cannot Be Said to Be Dishonest in
Rejecting Because of It
Surely it would be dishonest to claim the right to reject by claiming a
defect that does not exist. Neumiller Farms illustrates this point. In that
case, Neumiller Farms rejected potatoes, claiming they did not chip
satisfactorily, as required by the contract. After hearing expert testimony,
the court concluded that the potatoes were suitable for chipping and, thus,
Neumiller Farms received exactly what it bargained for and had been
dishonest in claiming otherwise.137
Some commentators argue that even if there is a legally significant
defect, a buyer must actually be rejecting because of his own subjective
dissatisfaction with the defect rather than because of some other factor
(such as a falling market). Proponents of this view would suggest that
even if the potatoes at issue in Neumiller Farms did not chip satisfactorily,
if the court was convinced that Neumiller Farms’ true reason for rejection
was the falling price of potatoes, then the farm would be stuck with them
because the right to reject (although present) would have been exercised in
bad faith.
A better approach is to treat the honesty prong of the good faith
obligation as a nullity in rejection cases because before the question of
good faith even arises in this context, it must first be shown that a legally
significant defect does in fact exist. Thus, the honesty of the buyer’s
assertion of a rejection should be decided in light of the initial inquiry into
the conformity of the goods. Once it is shown that some legally significant
defect does in fact exist, it is inevitable that a buyer who claims the right to
reject a good because of the presence of a defect is being honest; were it
not for the defect, the right to reject would not and could not be claimed.
Certainly a falling market for the goods would have influenced the
decision that a particular defect was too much for the buyer to tolerate,138
but this should not negate the fact that the defect was ultimately what
triggered the rejection; the falling market merely triggered the fact that it
was made with a light heart. This very literal approach avoids the complex
task of attempting to discern a party’s overriding motivation on some deep
philosophical level.139 This approach also avoids a potentially absurd
outcome whereby two identically situated buyers both reject nonconforming goods, one claiming, “I am invoking the perfect tender rule
137
See Neumiller Farms, Inc. v. Cornett, 368 So. 2d 272, 274–75 (Ala. 1979).
Toleration of defects admittedly becomes much more difficult in a falling market, a point
which is explored more in the subsection that follows.
139
It also avoids the flawed assumption that any particular course of action can be explained by
one principle motivational factor. This is a questionable assumption even in the context of individual
decision making, let alone in the context of commercial business decisions where multiple players (e.g.,
CEO, in-house counsel, sales manager) with potentially different motivations, each contribute to a
decision to reject a particular shipment of goods.
138
636
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because of defect [X],” and the other claiming, “I am invoking the perfect
tender rule because the market for these goods has declined.” If we take
seriously the notion of honesty in this setting, then the former buyer has
breached his contractual obligations whereas the latter has not. There is no
reason to think that the U.C.C. was ever intended to produce such a result
and potentially push buyers to claim that they acted for the most insidious
reasons imaginable simply to guard against potential liability under the
honesty prong of the good faith obligation.140
3. It Is Commercially Reasonable to Expect the Full Benefit of One’s
Original Bargain in a Falling Market
The second prong of contractual good faith—that the parties abide by
“commercially reasonable standards of fair dealing in trade”—is very
context- and industry-specific. Nonetheless, there is no reason to think that
there cannot be some generalization across industries on some broad
points. Particularly with respect to large commercial parties the reasonable
commercial standards are likely somewhat homogenous.141
In a falling market, the value of what the buyer is receiving is already,
by definition, reduced. Therefore, any defects in the goods are even more
significant to a buyer than they ordinarily would be because they
necessarily reduce the already deflated value of the goods even further.
Having already received the short end of the stick with respect to the
market value of the goods, it is all the more reasonable for the buyer to
ensure that at the very least the goods are what the contract requires them
to be.142 On the whole, the case law shows that buyers are permitted to
reject goods with trivial defects so long as they are legally significant. To
deny this right because of a falling market would have the perverse effect
of denying this otherwise tenable course of action at a time when it is most
reasonable for the buyer to want to exercise it.
140
To the extent that parties claimed such an insidious purpose, even while actually believing
themselves to be acting for just reasons, this would produce a somewhat paradoxical result of lying in
order to be deemed honest.
141
To the extent that this is not true—for there are surely examples where it is not—courts should
always elevate the specific industry practices above the more general business norms.
142
The Austrian Airlines court stated:
Nor would the rule for which [the seller] argues make much commercial sense.
Where a buyer pursuant to a contract calling for future delivery is presented with
non-conforming goods, price movements intervening between the agreement and the
time for delivery often are taken into consideration in determining whether to reject.
It makes sense to consider them because nonconformities often go not to the
ultimate utility of the goods, but to their value, especially resale value. Where the
parties . . . contract in terms that give the buyer the right to walk away from the deal
in the event of a non-conforming tender, there is no reason not to give the buyer the
benefit of its bargain.
Austrian Airlines Oesterreichische Luftverkehrs AG v. UT Fin. Corp, 567 F. Supp. 2d 579, 600
(S.D.N.Y. 2008), aff’d, No. 08-4176-cv., 2009 WL 1940715 (2d Cir. July 2, 2009).
2009]
637
B. The Argument for Categorical Exclusion
Thus far, this Note has posited that evidence of a falling market is not
helpful in the adjudication of disputes over rejection of goods. One could
fairly ask why we should categorically exclude such evidence. After all, in
some sense it is true that totally removing this circumstantial evidence
from the equation could invite some buyers to use their rejection right
strategically as a means of avoiding the contract. Conversely, if such
evidence is allowed in contract disputes, it is unlikely that sellers would
have a similar strategic response; they are unlikely, after all, to
intentionally produce goods which fail to conform to the terms of the
contract simply because they would be armed with a factually difficult
argument that those goods were really rejected on the basis of a falling
market. Given this reality, it is fair to ask, “Why not just allow evidence of
a falling market to enter these cases for what it is worth?” The response is
two-fold. First, to say that a decision to reject in a falling market is
“strategic” is not to say that it is wrong or unjustified.143 Second, the
inclusion of falling markets evidence in rejection cases hurts the overall
body of contract law.
When goods that are slightly non-conforming are tendered, a buyer is
left with two options. First, he can ask the seller to repair the defect.144
The second option—assuming this is not an instance where the right to
cure is present—the buyer can reject the goods outright and risk the dual
possibilities of destroying his relationship with this seller and potentially
facing litigation. Given the apparent downsides to the second option,
buyers are likely to think carefully before taking that course. It is certainly
true that the market for the goods is a factor that will play into the analysis.
Clearly, if the value of goods had risen rather than fallen, a buyer would be
less insistent on enforcing his rights to the fullest degree. He would likely
forego his right to rejection and instead permit extra time to make cure or
negotiate a cash payment as damages for acceptance of slightly nonconforming goods.145 However, just because the buyer has the ability not
to enforce his rights to the fullest extent does not mean that he does not
possess those rights in the first place. Parties in voluntary transactions
always have the ability to waive their rights against one another, or they
have the ability to enforce them exactingly. That market circumstances
dictated which course they selected should not detract from the fact that
they did actually possess the right to take the action they took under the
143
Likewise, saying that conduct was not entered into strategically by the other party does not
mean that that the conduct was rightful under the terms of the contract.
144
Indeed, this is sometimes, but certainly not always, required under the seller’s right to cure.
See discussion supra Part II.A.2.
145
U.C.C. section 2-714 (2002) allows buyers to accept non-conforming goods and sue under the
warranty for the damage caused by the non-conformity.
638
[Vol. 42:611
terms of the contract, that the exercise of this right was honest, and that it
was commercially reasonable. As Professor Gillette suggests, “That the
buyer receives a windfall from the fortuitous breach does not necessarily
mean that he is not entitled to it.”146
In addition, while it may be a stretch to believe that a seller will
actually go out of his way to strategically saddle a buyer with nonconforming goods, the perfect tender rule is itself an acknowledgement
that in the case of one-shot contracts, buyers need a pretty big stick in
order to protect themselves from shoddy workmanship. This is particularly
true when the defects are small and, therefore, a substantial performance
requirement would be inadequate to protect buyers’ rights. It is consistent
with this policy to deny the use of falling market evidence, which would
tend to undermine the strength of the rule by giving credence to an excuse
for lax quality standards (even if those lax quality standards were not
undertaken strategically).
Finally, there are other consequences of allowing sellers to introduce
evidence that rejection was motivated by a falling market which are, on
balance, bad for contract law.
1. Detracts from the Development and Clarity of U.C.C. Case Law
Judge Learned Hand once opined that words such as “good faith . . .
obscure the issue.”147 Indeed, cases such as Joc Oil USA, Neumiller
Farms, and TX Printing are difficult to read because the presence of
discussions regarding the market for the goods detracts from, and confuses,
the discussion of the conformity of the goods. It is difficult to tell if the
reason for the court’s holding is the existence of a non-conformity, or the
existence of evidence of a falling market. If a future case arises where a
buyer notices a non-conformity that has previously been held to be legally
insignificant and, thus, insufficient to allow for rejection in a falling
market, it is unclear how much weight to give such a holding if the value
of the goods in the current case has remained steady.148 This lack of clarity
has needlessly impaired the ability of practitioners to advise their clients as
to when they can comfortably reject a good that they deem nonconforming. Professor Gillette has summarized the dilemma by saying:
It is unclear whether the attorney can advise his client that
cancellation of the contract with the defaulting seller is
146
Thompson-Starrett Co. v. La Belle Iron Works, 17 F.2d 536, 541 (2d Cir. 1927). See also
Market St. Assocs. v. Frey, 941 F.2d 588, 593 (7th Cir. 1991), a case in which Judge Posner quotes
Judge Hand and agrees with his sentiment.
148
Obviously, this type of common law problem is in no way unique to perfect tender rule cases.
My point here is only that in perfect tender rule cases, perhaps unlike other cases, there is no need for
courts to engage in two parallel lines of reasoning. In this context, one discussion would suffice, and
therefore should be deemed preferable.
147
2009]
639
appropriate under an expansive good faith standard. He must
determine whether the client will be affected adversely—
beyond the loss of a better bargain—by the nonconformity.
Regardless of the difficulty of such a determination, the need
to make the inquiry at all introduces into sales law the notion
of material breach that is rejected explicitly by the host of
provisions concerning perfect tender and cure.149
Professor Sebert argues that the lack of cases using the duty of good faith
as a basis for denying buyers a right to rejection may be evidence of the
influence the doctrine is having “at the point of decision by a buyer.”150
Such a result may well be tolerable, but it should not be preferable.
Courts should be careful to keep discussions of conformity of the
goods separate from discussions of the good faith of the actors, and since a
falling market has no bearing on either, it should be left out of decisions all
together. If there is clear evidence that a good was conforming (as in
Neumiller Farms), then rejection should be deemed wrongful irrespective
of the motive of the buyer. In such cases, courts need not, and should not,
even reach the issue of bad faith. If the good is found non-conforming
then an inquiry into good faith is justified, however, since the presence or
absence of a falling market should have no impact on this determination, it
remains an inappropriate subject matter. KCA Electronics is an example of
a case that follows just this model and the holding is made much clearer
because of it.151
2. Encourages Litigation at the Expense of Voluntary Settlement
For businessmen, even a case that is won in litigation generally
represents (at best) an unwanted annoyance. One of the chief goals of the
U.C.C. is to provide consistency and predictability in American contract
law.152 This predictability is important to help guide parties’ conduct, both
in the ordinary course of business, as well as in their decision making after
a dispute has arisen (such as when deciding whether to sue or what
litigation theories to utilize).153 Ideally, parties should be able to resolve
their commercial differences without resorting to judicial intervention;
however, realization of this goal requires a predictable outcome if they fail
149
Gillette, supra note 46, at 652–53.
151
July 26, 2007).
152
See U.C.C. § 1-103 (2008) (“The [U.C.C.] must be liberally construed and applied to promote
its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law
governing commercial transactions . . . [and] (3) to make uniform the law among the various
jurisdictions.”).
153
See Gillette, supra note 46, at 621 (“The Code . . . is a tool for businessmen and their attorneys
to predict the legal consequences of voluntary transactions.”).
150
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[Vol. 42:611
to agree. This in turn requires “precision of definition and certainty of the
effects of performance and nonperformance.”154 Without this certainty of
effect, parties may be tempted to abandon the cooperative channels more
readily in hopes of imposing a superior result upon their trading partner by
judicial decree.
Allowing bad faith to void an otherwise tenable right of rejection,
encourages litigious behavior by undeserving sellers who have tendered
non-conforming goods. As Professor Burton has observed, the imprecise
boundaries of good faith have produced “[j]ust enough unorthodox
judgments . . . to inspire ever-optimistic plaintiffs’ counsel to keep the
lawsuits coming.”155 Ambiguity breeds test cases. Sometimes ambiguity
is necessary or even appropriate, but in the commercial contracts context it
often leads to inefficiency. For instance, the extraneous discussion of good
faith and the falling market in Joc Oil USA turned what could have been a
straightforward U.C.C. section 508(2) case into a disjointed discussion that
was later cited—erroneously—by a plaintiff in a multi-million dollar
contract dispute.156 As has been explained, there is no need for the
ambiguity posed by judicial opinions discussing falling markets in cases
contesting the rightfulness of rejection, and, therefore, such ambiguity
should be readily avoided.
C. Potential for Abuse Can Be Limited by Other Legal Doctrines and
Perfect Tender Rule Constraints
Nothing in this Note should be taken to suggest that cases such as
Neumiller Farms (which considered the falling market in determining that
the buyer had made a bad faith rejection) reached an incorrect result;
indeed the reverse is true. As Professor Gillette opines, “If there were no
other safety valve available to prevent the waste inherent in the possibility
of rejections for trivial defects, use of the good faith obligation might
therefore appear justifiable.”157 The problem that has been posited is that
such cases inadvertently and unnecessarily complicate the issues. Several
other “safety valves” exist and should be utilized to produce clearer
decisions in future falling market rejection cases.
First and foremost, courts should recognize that they do not need to
address the issue of good faith unless a legally significant non-conformity
is found to exist. Neumiller Farms is illustrative. There, Neumiller Farms
contracted for the purchase of potatoes suitable for chipping, and that is
exactly what the court found it had received.158 Therefore, Neumiller
154
Id.
Burton, Good Faith IV, supra note 46, at 1535.
157
158
Neumiller Farms, Inc. v. Cornett, 368 So. 2d 272, 274–75 (Ala. 1979).
155
156
2009]
641
159
Farms had a contractual obligation to do as it had agreed.
This should
have ended the analysis. It is irrelevant to inquire why Neumiller Farms
performed the way it did or what market factors were to blame. By
discussing the falling market conditions and imploring notions of good
faith, the court turned an easy case into a hard one. Simply put, if a
tendered good conforms to the terms of the parties’ bargain it should
always be a breach for the buyer to reject delivery.
In addition, courts should enforce the seller’s remedy of cure in
appropriate cases. Although, as stated in Part II, sellers often do not have
any time allotted to make cure, sometimes they do.160 Buyers who
recognize the possibility of a court finding them in breach for not
permitting a seller to exercise its right to cure will be more willing to
bargain and negotiate acceptable remedies without resorting to legal
doctrines, and, more importantly, without using precious judicial resources
to get there. As Professor Gillette points out, “A buyer seeking to avoid
his bad bargain would be unlikely to invest time or resources in
discovering a nonmaterial defect if the known consequence of his rejection
is to give the seller an additional opportunity to tender conforming
goods.”161 To the extent that time for cure is still available, courts should
fully utilize it.
Further, although this Note has advocated that, in a general sense, it
should not violate any broad standards of commercial dealing for a buyer
to reject for small non-conformities when it suits his interests, the
argument should not be read to dismiss reasonable commercial standards
as an ineffective restraint on the perfect tender rule. Indeed, commercial
practices such as trade usage, course of performance, or course of dealing,
may be very compelling on a case-by-case basis. For example, a buyer
who is contractually entitled to silver widgets but has always accepted
bronze widgets from a particular seller should not be able to suddenly
insist on silver simply because the price of widgets falls. In that case, the
parties would be said to have a clear course of performance establishing
that bronze widgets are in fact conforming under the contract—the written
terms notwithstanding—and, as such, the buyer would not be entitled to
the right of rejection.
Finally, the majority of the discussion throughout this Note has
assumed a transaction involving two large sophisticated parties. In this
context we can, and should, readily expect these parties to take care of
themselves. These types of parties should not be able to use good faith as a
means of crying foul in a falling market simply because they failed to
159
Id.
See, e.g., Joc Oil USA, Inc., v. Consol. Edison Co., 434 N.Y.S.2d 623, 632 (N.Y. Sup. Ct.
1980) (stating that Joc Oil made “a reasonable and timely offer to cure”).
161
160
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[Vol. 42:611
properly plan their transactions with the necessary specificity in good
economic times. Given the resources of sophisticated commercial parties,
it is not too much to ask them to safeguard their own interests. It may,
however, be too much to ask of a smaller, less sophisticated, buyer.
Indeed, one plausible way of reconciling decisions protecting sellers in
falling markets and those declining to, are that—as best the records
indicated—the sellers in the former category tend to be smaller entities,
while those in the latter category tend to be more sophisticated
businesses.162
If it is true that the real concern is protecting smaller sellers who lack
the bargaining power to protect themselves from being exploited by unfair
rejection in a falling market, then courts would be better served by simply
saying as much. Instead of accomplishing this aim through the obligation
of good faith—which, under the revised U.C.C. section, one applies the
same to all parties, whether merchant or non-merchant, sophisticated or
unsophisticated—courts could use another doctrine that is more readily
understood as a tool to alleviate otherwise harsh results for parties with
disparate bargaining power: unconscionability.163 To the extent that a
rejection right seems to give a large commercial buyer a patently unjust
right of rejection over an individual seller with little bargaining position, it
may be appropriate for courts to declare that right of rejection
unconscionable under certain facts.164 This will achieve the same goal of
protecting weaker parties, without undermining the clear application of the
perfect tender rule to more sophisticated sellers who could have protected
themselves—but chose not to—by bargaining for a more precise
description of goods, or a longer time in which to tender them.
162
Compare Neumiller Farms, 368 So. 2d 272 (involving a dispute between individual potato
farmers in DeKalb County, Alabama and a corporate buyer), and Printing Ctr. of Tex., Inc. v.
Supermind Publ’g Co., 669 S.W.2d 779 (Tex. App. 1984) (involving a dispute between an independent
publisher and a local printing company), with Austrian Airlines Oesterreichische Luftverkehrs AG, v.
UT Fin. Corp, 567 F. Supp. 2d 579 (S.D.N.Y. 2008) (involving a dispute between a multi-national
airline and a multi-national conglomerate), and KCA Elecs., Inc. v. Legacy Elecs., Inc., No. G037285,
2007 WL 2137959 (Cal. Ct. App. July 26, 2007) (involving a dispute between two high-tech California
companies). But see Oil Country Specialists, Ltd. v. Philipp Bros., 762 S.W.2d 170 (Tex. App. 1988)
(involving a dispute between two oil companies).
163
See Cont’l Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1527 (9th Cir. 1987)
(“The doctrine of unconscionability cannot be invoked by so sophisticated a party as [the plaintiff] in
reference to a contract so laboriously negotiated.”); see also Geldermann & Co. v. Lane Processing,
Inc., 527 F.2d 571, 576 (8th Cir. 1975) (noting that unconscionability does not protect a sophisticated
investor); AMF Inc. v. Computer Automation, Inc., 573 F. Supp. 924, 930 (S.D. Ohio 1983) (finding
unconscionability inapplicable in a contract between “large, sophisticated merchants”).
164
Consider the following example: an adhesion contract between a large company and an
individual seller that contained a vague description of the goods, which the large buyer then used to
reject goods in a falling market at will, could potentially be deemed unconscionable.
2009]
643
V. CONCLUSION
Despite the fact that the issue of contested rejection of goods against
the backdrop of a falling market for the goods is likely a reoccurring issue
for many businesses, the issues presented have not been adequately
resolved. This is surely—at least in part—a function of businesses’
understandable reluctance to engage in costly litigation, especially when
the harm caused by any particular contractual transgression often pales in
comparison to the attention necessary to satisfy the business’s other
obligations. Hopefully, this Note represents a step in the direction of
further examination, debate, and clarification. The framework proposed is
meant to be a subtle attempt to refine future judicial opinions to achieve a
more focused pool of case law from which future business lawyers can
discern precisely where their clients stand. Though the framework
suggested may appear to be pro-buyer, nothing argued in Part IV should be
seen as particularly radical165 and to illustrate this point, this Note
concludes by examining two previously discussed cases, Austrian Airlines
(which supports this Note’s position) and Joc Oil USA (which does not) to
see what would happen if the alternative rule had been applied to the facts.
In Austrian Airlines, the court was unmoved by the seller’s evidence of
a severe decline in the value of the plane, which was tendered and
subsequently rejected by the buyer. The defects to the plane included the
lack of a required FAA Certificate of Airworthiness, without which the
plane was useless. If the court had found UTF’s rejection to be a bad faith
effort to escape from the bargain, then its rejection of the plane would have
been deemed an acceptance and it would have been the not-so-proud
owner of a plane, the value of which had been severely deflated not just by
uncontrollable market fluxuations, but also by the seller’s own incompetent
ability to build it correctly. Some readers may find no trouble with this
result—it is, after all, hard to be outraged by the slight unfairness this
would impose upon a sophisticated entity such as UTF. However, this
result is not contemplated by the contract that two sophisticated parties
negotiated and entered into. In the contract they struck, Austrian Airlines
assumed the risk of failing to make perfect tender. UTF obviously
contemplated the value of the plane in the current market when making its
decision to reject delivery, but the court was correct to hold that this was
nothing more than a reasonable business decision based on a negotiated
contract and that there was “no reason not to give the buyer the benefit of
165
Specifically, I do not wish to suggest any sort of departure from Professor Corbin’s wise
admonition that “[t]he law seeks to be neutral between the competing interests of seller and buyer.”
Instead, I strive only to promote a framework to accomplish, as Professor Corbin also advocates, the
perfect tender rule’s purpose of “protect[ing] the buyers of goods against sellers who would be tempted
to saddle buyers with unsuitable and defective goods if buyers could not reject.” ARTHUR L. CORBIN,
CORBIN ON CONTRACTS § 33.3 (2009).
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[Vol. 42:611
166
its bargain.”
In Joc Oil USA, the contract required delivery of oil meeting maximum
sulfur content requirements with delivery during a specified period. The
seller delivered oil with sulfur in excess of this amount and the buyer
rejected. Since the stated time for performance had passed, the buyer
refused to allow the seller any additional time to cure. In finding that the
seller had a reasonable basis to believe his initial tender would be
acceptable, the court frequently referenced the sharp decline in the oil
market as evidence of the buyer’s unsavory motives.167 Regardless of
whether the court meant to suggest a rule of law that rejection for minor
defects in a falling market could be grounds for a finding of bad faith,
these passing comments did provide fodder for such claims. In reality, the
court never needed to go down the path of discussing the falling market for
oil because, even without it, there was ample evidence to support the
seller’s position.
The court noted that the seller had no knowledge that the oil contained
too much sulfur and, in fact, had received a report from their supplier
indicating that the oil would conform.168 This would seem to satisfy the
test advocated by White and Summers that the buyer be unaware of the
defect despite his good faith and prudent business behavior.169 In addition,
even under the more restrictive approach advocated by Nordstrom,170 the
seller likely had reason to believe that his oil would be acceptable with a
cash allowance because even the non-conforming shipment had a sulfur
content within a range that the seller knew that the buyer was authorized to
buy.171 From this evidence alone, the court could have inferred a
reasonable basis to believe that the initial delivery would be acceptable.172
Since the buyer failed to provide the seller with the additional time to
cure, which the court found he was entitled to, it had breached the contract
regardless of its motives. Similarly, had the seller been unable to cure
within a reasonable amount of additional time, then the buyer would have
been fully within its rights—falling market or not—to reject delivery. To
do otherwise would run contrary to the parties’ contract and force the
buyer to accept poorer quality oil, when it had already suffered the
misfortune of seeing the value of its purchase decline in the world oil
market.
166
Austrian Airlines, 567 F. Supp. 2d at 600.
Joc Oil USA, Inc. v. Consol. Edison Co., 434 N.Y.S.2d. 623, 630 (N.Y. Sup. Ct. 1980).
169
See WHITE & SUMMERS, supra note 7, at 324.
170
See NORDSTROM, supra note 35, at 321.
171
Joc Oil USA, Inc., 434 N.Y.S.2d. at 626.
172
If anything, the evidence of a falling market for oil, which the court included in this portion of
its discussion, actually seems to cut the other way. The seller’s knowledge that the market was falling
should have made the possibility of the buyer’s rejection less of a surprise.
167
168
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645
In short, no harm is caused by ignoring the presence of a falling market
in a case where the buyer’s rejection has been contested; however,
significant confusion, litigation, and unfairness to the contractual rights of
buyers may result from its inclusion. As such, courts would be prudent to
follow decisions such as Austrian Airlines and KCA Electronics and make
their perfect tender rule discussions more about the conformity of the
goods and less about market conditions that have only a sentimental impact
on the outcome.
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Note
CRISIS COMPOUNDED BY CONSTRAINT: HOW REGULATORY
INADEQUACIES IMPAIRED THE FED’S BAILOUT OF BEAR STEARNS
BRYAN J. ORTICELLI
This Note explores the failure of the investment bank Bear Stearns
within the context of the greater financial crisis that began in the summer
of 2007, largely as a result of the widespread collapse of the market for
subprime mortgage-backed securities. Specifically, this Note discusses in
detail the circumstances surrounding the fall of Bear Stearns, the
unprecedented measures taken by the Federal Reserve to avoid a
disorderly breakup of the firm, and the policy implications of the Fed’s
actions for the future of investment bank regulation. By devoting
particular attention to the Fed’s response to Bear Stearns’s liquidity crisis,
which peaked in March of 2008, this Note seeks to elaborate on the
statutory provisions utilized by the Fed in the “unusual and exigent”
situation presented by the Bear Stearns predicament. Moreover, drawing
on criticisms voiced by members of both the public and private sectors
regarding the inadequacies of the Fed’s regulatory resources during the
Bear Stearns crash, this Note considers potential reforms to federal
supervision of investment banks in the future. With the hope of better
understanding the government’s role in the ongoing financial dilemma,
this Note uses the Bear Stearns bailout as a template for increasing
dialogue on the issue of the government’s proper function during a free
market catastrophe.
647
NOTE CONTENTS
I. INTRODUCTION ................................................................................... 649
II. THE TRAGEDY OF BEAR STEARNS ................................................ 653
A.
B.
C.
D.
THE OPENING ACT: JULY 2007–FEBRUARY 2008 ............................... 653
THE PERFECT STORM: MARCH 2008 ................................................... 655
THE TIME OF RECKONING.................................................................... 658
SHOTGUN MARRIAGE MADE IN HEAVEN ............................................ 661
III. AN “UNUSUAL AND EXIGENT” LENDER OF LAST RESORT .... 664
A. TOO BIG TO FAIL ................................................................................. 664
B. SWEETENING THE DEAL ...................................................................... 668
C. THE OFFSPRING OF EMERGENCY ......................................................... 672
IV. INADEQUACIES IMPAIRING INTERVENTION ............................. 675
A. THE CALL FOR REGULATORY REFORM ............................................... 675
B. PRIVATE SKEPTICISM........................................................................... 679
V. GOING FORWARD: THE FUTURE OF INVESTMENT BANK
REGULATION ..................................................................................... 682
A. AN ATTEMPT AT RECONCILIATION...................................................... 682
B. THE CURRENT REALITY ...................................................................... 689
VI. CONCLUSION ..................................................................................... 689
CRISIS COMPOUNDED BY CONSTRAINT: HOW REGULATORY
INADEQUACIES IMPAIRED THE FED’S BAILOUT OF BEAR STEARNS
BRYAN J. ORTICELLI*
As we continue to address current market stress, we must also examine
the appropriate policy responses.1
In other words, the regulation that we have didn’t work very well.2
I. INTRODUCTION
Long before American taxpayers became the proud owners of up to
$700 billion in Wall Street’s “toxic assets,”3 Uncle Sam was already taking
novel actions to rescue failing financial giants from their own balance
sheets.4 More specifically, in March 2008, nearly seven months prior to
“one of the largest-ever government interventions in the nation’s
economy,”5 the Federal Reserve (“Fed”) exercised emergency lending
authority to prevent an imminent failure of the investment bank, Bear
Stearns.6 In so doing, the Fed utilized a “Depression-era law”7 in its role
* Nova Southeastern University, Farquhar College of Arts & Sciences, B.S. 2007; University of
Connecticut School of Law, J.D. Candidate 2010. I would like to express my sincere gratitude to
Professor Patricia McCoy for her guidance and inspiration of this Note. This Note is dedicated to my
parents for their unwavering support throughout my life. All errors contained herein are mine and mine
alone.
1
Henry M. Paulson, Fmr. Sec’y of the Treasury, Remarks to the National Press Club on
Recommendations from the President’s Working Group on Financial Markets (Mar. 13, 2008),
available at http://www.ustreas.gov/press/releases/hp872.htm.
2
Tyler Cowen, Too Few Regulations? No, Just Ineffective Ones, N.Y. TIMES, Sept. 14, 2008, at
B7.
3
See Emergency Economic Stabilization Act of 2008, H.R. 1424, 110th Cong. § 115(a)(3) (2008)
(authorizing the Treasury to incur up to $700 billion in purchase costs of troubled mortgage-backed
securities and other assets).
4
See Michael Crittenden & Marshall Eckblad, Update: Fed Rescue of Bear Stearns Isn’t Like
Bailouts of Old, DOW JONES NEWS SERV., Mar. 14, 2008 (“When the Fed announced . . . it had
arranged short-term emergency financing for [Bear Stearns]—an unprecedented event, depending on
whom you ask—it sent a signal to the world’s investors that a failure at [Bear Stearns] could put
markets around the world at risk.”); see also David Fettig, The History of a Powerful Paragraph,
REGION, June 2008, at 33, available at http://www.minneapolisfed.org/pubs/region/08-06/section13.pdf
(“When describing the Federal Reserve’s response to the Bear Stearns episode, observers have used
words like ‘extraordinary’ and ‘unprecedented.’”).
5
Greg Hitt & Deborah Solomon, Historic Bailout Passes as Economy Slips Further, WALL ST. J.,
Oct. 4, 2008, at A1.
6
See Timothy F. Geithner, Fmr. President, Fed. Reserve Bank of N.Y., Testimony Before the
U.S. Senate Comm. on Banking, Hous. & Urban Affairs (Apr. 3, 2008), available at
http://www.newyorkfed.org/newsevents/speeches/2008/gei080403.html (explaining the necessity of
Fed intervention in the Bear Stearns financial crisis); Kate Kelly et al., Fed Races to Rescue Bear
Stearns in Bid to Steady Financial System—Storied Firm Sees Stock Plunge 47%; JP Morgan Steps In,
650
[Vol. 42:647
8
as “lender of last resort” to avert the economic catastrophe that a
disorderly bankruptcy of Bear Stearns presented.9 Fearful of the systemic
risk posed by a sudden failure of an institution as large and interconnected
as Bear Stearns, proponents of the bailout justified its imposition given the
“unusual and exigent circumstances” involved.10 Moreover, with no
private sector solution readily apparent at the time, the Central Bank had
few options to choose from to protect the nation’s economy—a process
Fed Chairman Ben Bernanke argued was “severely complicated by the lack
of a clear statutory framework for dealing with such a situation.”11
The arcane framework criticized by Chairman Bernanke consists of
fragmented authority among a variety of agencies including, among others,
the Fed, the Securities and Exchange Commission (“SEC”), and the
Commodity Futures Trading Commission (“CFTC”), who all play a role in
overseeing investment banks.12 Not surprisingly, this consortium of
WALL ST. J., Mar. 15, 2008, at A1 (“Credit turmoil spread to the heart of the U.S. financial system as
Bear Stearns Cos., an 85-year-old institution that has survived the Depression and two world wars,
sought and received emergency funding backed by the federal government.”). For a more detailed
discussion of the Fed’s utilization of emergency lending authority during the Bear Stearns crisis, see
infra Part III.A.–B. It should be noted at the outset that this Note’s continuous reference to “Bear
Stearns” is made with respect to the company as the nation’s fifth-largest investment bank as it existed
in March 2008. Benton Ives, Fed Dips into Bag of Liquidity Tricks, CQ WEEKLY, Mar. 17, 2008, at
684. Although The Bear Stearns Companies, Inc. included numerous subsidiary institutions and
organizations, this Note is solely concerned with the operations of Bear Stearns as an investment bank.
Investment banks (i.e., nonbanks), unlike their commercial depository counterparts, function primarily
as financial intermediaries, and are subject to less regulatory oversight and standards than traditional
banks. See, e.g., Jose Gabilondo, Leveraged Liquidity: Bear Raids and Junk Loans in the New Credit
Market 10 (Fla. Int’l Univ. Legal Studies Research Paper No. 08-01, 2008), available at
http://ssrn.com/abstract=1141955 (“Nonbank lenders need not comply with federal limits on how much
the lender can leverage [or assume debt] itself.” (citation omitted)).
7
Greg Ip, Bear on the Brink: Desperate Fed Dusts Off Remedy from the Depression to Save
Bear—Opening the Discount Window for a Nonbank Requires Special Votes at Central Bank, WALL
ST. J., Mar. 15, 2008, at A9.
8
David Fettig, Lender of More than Last Resort, REGION, Dec. 2002, at 15–19, 44–47, available
at http://www.minneapolisfed.org/pubs/region/02-12/lender.pdf.
9
See Ben S. Bernanke, Chairman of the Bd. of Governors of the Fed. Reserve, Remarks at the
Federal Deposit Insurance Corporation’s Forum on Mortgage Lending for Low and Moderate Income
Households (July 8, 2008), available at http://www.federalreserve.gov/newsevents/speech/bernanke
20080708a.htm [hereinafter Bernanke, FDIC] (“[A]llowing Bear Stearns to fail so abruptly at a time
when the financial markets were already under considerable stress would likely have had extremely
adverse implications for the financial system and for the broader economy.”).
10
See, e.g., Ben S. Bernanke, Chairman of the Bd. of Governors of the Fed. Reserve, Testimony
Before the Joint Economics Committee (Apr. 2, 2008), available at http://federalreserve.gov/
newsevents/testimony/bernanke20080402a.htm (“With financial conditions fragile, the sudden failure
of Bear Stearns likely would have led to a chaotic unwinding of positions in [critical] markets and
could have severely shaken confidence.”); see also Federal Reserve Act, 12 U.S.C. § 343 (2006).
11
Ben S. Bernanke, Chairman of the Bd. of Governors of the Fed. Reserve, Remarks at the
Federal Reserve Bank of Kansas City’s Annual Economic Symposium (Aug. 22, 2008), available at
http://federalreserve.gov/newsevents/speech/bernanke20080822a.htm [hereinafter Bernanke, Kansas
City].
12
See Regulatory Checks and Balances, CQ WEEKLY, Mar. 17, 2008, at 681, 681 (“A variety of
federal agencies oversee the nation’s financial institutions. In response to the sub-prime mortgage
crisis, the President’s Working Group on Financial Markets has proposed that many of those regulators
step up their oversight, particularly in regards to trading in mortgage-backed securities.”).
2009]
CRISIS COMPOUNDED BY CONSTRAINT
651
government entities can result in gray areas of regulation, where seemingly
distinct oversight duties can overlap and lead to supervisory inconsistency,
or worse.13 For example, although Bear Stearns was primarily regulated by
the SEC as a securities firm, the Commission (unlike the Fed) does not
“have a checkbook to help inject money into an investment bank or market
when it hits trouble.”14 Conversely, during the Bear Stearns emergency,
the Fed lacked the extensive regulatory oversight of investment banks that
the SEC’s mandate provides15—oversight which may have preemptively
thwarted the need for an eventual $29 billion bailout.16
Concerns such as these have prompted intense review by members of
both the public and private sectors of existing financial regulation,
particularly as coordinated and implemented by the Fed over investment
banks.17 With immense changes to government policy already occurring,18
13
See Kara Scannell, The Bear Stearns Fallout: Crisis Highlights SEC’s Limits—Agency’s Lack
of Tools to Stem Financial Woes May Rekindle Debate, WALL ST. J., Mar. 18, 2008, at A19 (“These
various [agencies] are all doing the same thing even if they’re called different things. It doesn’t allow
for the effective measurement of risk, the effective development of national policy. It’s just a
patchwork quilt that needs to be revised.” (quoting Harvey Pitt, former SEC Chairman)).
14
Id.; see also Kara Scannell, Credit Crisis: SEC Comes Under Criticism in Light of Bear Woes,
WALL ST. J., Mar. 27, 2008, at A6 (discussing the SEC’s limitations in times of financial crisis).
15
See Roger C. Altman, How the Fed Can Fix the World, N.Y. TIMES, Sept. 3, 2008, at A25
(“[S]uddenly, the Fed was standing behind both the larger [commercial] banks it regulates and the
major investment banks it does not. This cannot continue.”). Despite the SEC’s broad ideological
regulatory mission, its efforts in actively overseeing diverse financial operations, including those of
hedge funds, have been the subject of ongoing scholarly criticism. See Thomas C. Pearson & Julia Lin
Pearson, Protecting Global Financial Market Stability and Integrity: Strengthening SEC Regulation of
Hedge Funds, 33 N.C. J. INT’L L. & COM. REG. 1, 48–60 (2007) (evaluating historical limitations on
the SEC’s oversight of hedge funds).
16
See Amit R. Paley & David Hilzenrath, SEC Chief Defends His Restraint; Cox Rebuffs
Criticism of Leadership During Crisis, WASH. POST, Dec. 24, 2008, at A1 (“The March collapse of
Bear Stearns illustrated an array of [SEC] shortcomings, according to a review by the SEC’s inspector
general. [The inspector general] concluded that [SEC] officials had been aware of ‘numerous potential
red flags’ at Bear Stearns ‘but did not take actions to limit these risk factors.’”); see also Kate Kelly,
The Fall of Bear Stearns: Bear Stearns Neared Collapse Twice in Frenzied Last Days—Paulson
Pushed Low-Ball Bid, Relented, WALL ST. J., May 29, 2008, at A1 (“To make [Bear’s bailout]
palatable to the Fed, J.P. Morgan assumed responsibility for the first $1 billion of any potential losses,
reducing the government’s exposure [in the bailout] to $29 billion.”).
17
See, e.g., Stephen Morris & Hyun Song Shin, Financial Regulation in a System Context,
BROOKINGS PAPERS ON ECON. ACTIVITY, Fall 2008, at 2, 2–13, available at
http://www.brookings.edu/economics/bpea/~/media/Files/Programs/ES/BPEA/2008_fall_bpea_papers/
2008_fall_bpea_morris_shin.pdf (“The most pressing policy question has been whether broker-dealers,
[including investment banks] should fall under banking regulation overseen by the Federal Reserve,
and if so how they should be regulated.”); see also Elizabeth F. Browne, The Tyranny of the Multitude
Is a Multiplied Tyranny: Is the United States Financial Regulatory Structure Undermining U.S.
Competitiveness?, 2 BROOKINGS J. CORP. FIN. & COM. L. 369, 376–410 (2008) (criticizing the
American financial regulatory structure as detrimental to global competition and providing empirical
analysis of derogatory effects within various financial markets); Ashok Vir Bhatia, New Landscape,
New Challenges: Structural Change and Regulation in the U.S. Financial Sector 17–19 (Int’l Monetary
Fund, Working Paper No. 07/195, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1007943 (discussing emerging policy considerations in the changing U.S. financial
markets).
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[Vol. 42:647
questions remain as to the proper scope of the Fed’s administrative
authority19—especially now that the financial landscape has altered such
that no major independent investment banks exist.20 As the Bear Stearns
incident suggests, effective government oversight directives can mean the
difference between preventing a crisis and using billions of dollars of
public funds to bail out private enterprises.21 However, as former Treasury
Secretary Henry Paulson has noted, regulation cannot “go so far as to . . .
make our markets less efficient,”22 or less competitive by stemming
innovation.23
Using the Bear Stearns case as a template, this Note explores the
criticisms regarding the regulatory structure of the American financial
industry with the goal of increasing dialogue as to the proper role of
government in the free market. By focusing on the unique circumstances
precipitating government action in avoiding the collapse of Bear Stearns,
this Note analyzes the legal tools relied on by the Fed to rescue Bear, and
how these tools may have been inadequate for the task at hand. Finally,
this Note draws on existing scholarly work to evaluate models of reform as
the economy continues to evolve.
Part II chronologically traces the factual developments leading up to
and including the Fed’s bailout of Bear Stearns. Discussion centers on the
early onset of the subprime mortgage crisis, initial effects of the crisis on
Bear Stearns’s ability to do business, and how Bear’s exposure to exotic
mortgage products eventually induced its demise. Part II also examines the
near bankruptcy of Bear and the Fed’s actions in forestalling this
occurrence, including facilitating the acquisition of Bear Stearns by
JPMorgan Chase (“JPMorgan”).
Part III considers the legal authority (pursuant to the Federal Reserve
Act) justifying the Fed’s actions in providing emergency funding to Bear
18
See Stephen Labaton, S.E.C. Concedes Oversight Flaws Fueled Collapse, N.Y. TIMES, Sept.
27, 2008, at A1 (“The S.E.C.’s oversight responsibilities will largely shift to the Federal Reserve,
though the commission will continue to oversee the brokerage units of investment banks.”).
19
See Bernanke, Kansas City, supra note 11 (“Going forward, a critical question for regulators
and supervisors is what their appropriate ‘field of vision’ should be.”).
20
See Jon Hilsenrath et al., Goldman, Morgan Scrap Wall Street Model, Become Banks in Bid to
Ride Out Crisis, WALL ST. J., Sept. 22, 2008, at A1 (“It had become increasingly clear to Fed
officials . . . that the investment-banking model couldn’t function in these markets.”).
21
See Bernanke, Kansas City, supra note 11 (“The regulation and supervisory oversight of
financial institutions is another critical tool for limiting systemic risk. . . . A stronger [regulatory]
infrastructure would help to reduce systemic risk.”).
22
Paulson, supra note 1.
23
See Browne, supra note 17, at 376–410 (suggesting that disorganized government policy can
negatively affect the United States’ ability to compete for foreign investors in a variety of markets);
John T. Lynch, Credit Derivatives: Industry Initiative Supplants Need for Direct Regulatory
Intervention—A Model for the Future of U.S. Regulation?, 55 BUFF. L. REV. 1371, 1423 (2008) (“An
increasingly heavy regulatory burden and a complex, cumbersome regulatory structure with overlaps at
the state and national levels is causing an increasing number of businesses to conduct more and more
transactions outside the country.” (citation omitted)).
2009]
653
Stearns and arranging JPMorgan’s purchase of the company. Additionally,
Part III assesses the creation and revision of lending facilities operated by
the Fed following the Bear Stearns experience and how these facilities
contribute to the growing supervisory authority of the Central Bank.
Part IV analyzes criticism as to both the Fed’s apparently inadequate
ability to effectively manage the Bear Stearns situation and concerns that
have been voiced regarding the increasing omnipresence of government in
the free market. To bolster the contextual perspective of these competing
positions, comparisons will be drawn from diverse regulatory systems,
including those operative in foreign arenas, particularly the United
Kingdom.
Finally, Part V focuses on the principal issue of systemic risk in
evaluating the future of investment bank regulation, and how current
research on the topic may contribute to a new regulatory framework better
equipped at protecting the American (and global) economy. Part V also
reviews the state of the current financial markets in considering the need
for added regulation, while reflecting on the causes and implications of the
ongoing financial debacle.
II. THE TRAGEDY OF BEAR STEARNS
A. The Opening Act: July 2007–February 200824
Prior to the summer of 2007, “the world experienced an unusual mix of
financial conditions”25 that resulted in a dramatic growth of a variety of
consumer and financial markets, most notably the housing market and
subprime mortgage loan industry.26 Large investment banks sought to
capitalize on the boom in the housing market by not only buying
24
This subpart is intended to provide necessary background leading up to the Fed’s bailout of
Bear Stearns in March 2008. As such, brief consideration is paid to the onset of the subprime mortgage
crisis and the ensuing credit crisis within the financial markets, and how this phenomenon contributed
to Bear Stearns’ operational failure. However, full discussion of the causes and implications of the
mortgage and credit crises is beyond the scope of this Note.
25
Timothy F. Geithner, Fmr. President, Fed. Reserve Bank of N.Y., Remarks at the Council on
Foreign Relations Corporate Conference 2008: The Current Financial Challenges: Policy and
Regulatory Implications (Mar. 6, 2008), available at http://www.newyorkfed.org/newsevents/speeches/
2008/gei080306.html [hereinafter Geithner, Foreign Relations].
26
See Raymond H. Brescia, Capital in Chaos: The Subprime Mortgage Crisis and the Social
Capital Response, 56 CLEV. ST. L. REV. 271, 282–300 (2008) (providing a detailed account of the
growth and eventual collapse of the subprime mortgage market); see also A. Mechele Dickerson,
Consumer Over-Indebtedness: A U.S. Perspective, 43 TEX. INT’L L.J. 135, 139–44 (2008) (describing
the increase in mortgage lending and consumer debt assumption and noting how such factors
contributed to the onset of the mortgage crisis); Paul Mizen, The Credit Crunch of 2007–2008: A
Discussion of the Background, Market Reactions, and Policy Responses, FED. RESERVE BANK OF ST.
LOUIS REV., Sept./Oct. 2008, at 531, 536, available at http://research.stlouisfed.org/publications/
review/08/09/Mizen.pdf (“The market for subprime mortgages grew very fast.”).
654
[Vol. 42:647
27
considerable stakes in subprime mortgage loans,
but also by
“securitizing” and pooling these loans into structured assets that would be
attractive to other investors based on anticipated return and risk exposure.28
These assets, known primarily as subprime mortgage-backed securities
(“MBS”) and collateralized debt obligations (“CDOs”),29 were particularly
popular with two large hedge funds at Bear Stearns: the “High-Grade
Structured Credit Strategies Fund” and the “High-Grade Structured Credit
Strategies Enhanced Leverage Fund.”30
Despite their initial appeal, subprime MBS and CDOs turned toxic
when the housing bubble burst starting in late 2006 and early 2007, and
extending into 2008.31 Large losses from these investments quickly
resulted in the evaporation of financing for private-label MBS,32 causing
loss of investor confidence and the subsequent failure of many subprime
lenders.33 As these problems continued to escalate in a vicious cycle
27
See Kenneth C. Johnston et al., The Subprime Morass: Past, Present, and Future, 12 N.C.
BANKING INST. 125, 130 (2008) (“[N]ever before had those on Wall Street been invested so heavily in
securities backed by subprime loans. . . . [T]hese investment vehicles became highly sought after by . . .
investment banks.”); Gretchen Morgenson, Rescue Me: A Fed Bailout Crosses a Line, N.Y. TIMES,
Mar. 16, 2008, at B1 (“As of . . . Nov. 30, [2007,] Bear Stearns had on its books approximately $46
billion of mortgages [and] mortgaged-backed . . . securities.”).
28
See LUIGI SPAVENTA, CTR. FOR ECON. POL’Y RESEARCH, POLICY INSIGHT NO. 22, AVOIDING
DISORDERLY DELEVERAGING 1 (2008), available at http://www.cepr.org/pubs/PolicyInsights/
PolicyInsight22.pdf (“[B]anks would pool and securitize the [products] they originated to distribute
them and transfer their risks to a myriad of investors.”).
29
See Johnston et al., supra note 27, at 128–29 (discussing CDOs and MBS as types of
investments that derive their value from the repayment of loans by the initial home borrowers). To
make these investments marketable, investment firms would splice original loans into “tranches” to
reduce the risk of loss presented by a loan’s default. Id. Thus, investors could largely choose the type
of risk they were willing to accept based on the yield values of differing tranches. See Steven L.
Schwarcz, Protecting Financial Markets: Lessons from the Subprime Mortgage Meltdown, 93 MINN. L.
REV. 373, 375–79 (2008) (detailing the distribution of CDOs and MBS through unique schematic
processes).
30
These funds held “60% of their net worth . . . in exotic securities.” Matthew Goldstein & David
Henry, Bear Bets Wrong, BUS. WK., Oct. 22, 2007, at 50; see also Kate Kelly et al., Two Big Funds at
Bear Stearns Face Shutdown—As Rescue Plan Falters amid Subprime Woes, Merrill Asserts Claims,
WALL ST. J., June 20, 2007, at A1 (“[T]he two Bear Stearns hedge funds held more than $20 billion of
investments, mostly in complex securities made up of bonds backed by subprime mortgages . . . .”).
31
See Joe Nicer & Edmund L. Andrews, Running a Step Behind as a Crisis Raged, N.Y. TIMES,
Oct. 23, 2008, at A1 (“The subprime mortgage debacle began emerging in the summer of 2007 . . . [b]ut
the true depth and extent of the losses did not become clear until [early in 2008] . . . .”); John Tatom,
The U.S. Foreclosure Crisis: A Two-Pronged Assault on the U.S. Economy 4–14 (Munich Personal
Repel Archive, Paper No. 9787, 2008), available at http://mpra.ub.uni-muenchen.de/9787/1/MPRA_
paper_9787.pdf (explaining how declines in the demand for housing and slowing in home appreciation
contributed to losses in mortgaged related investments).
32
See Ben S. Bernanke, Chairman of the Bd. of the Fed. Reserve, Testimony Before the Joint
Econ. Comm. (Sept. 24, 2008), available at http://federalreserve.gov/newsevents/testimony/
bernanke20080924a.htm (“[F]alling home prices and rising mortgage delinquencies have led to major
losses at many financial institutions, losses only partially replaced by the raising of new capital.”).
33
See Frederic S. Mishkin, Governor of the Bd. of the Fed. Reserve, Speech to the Money
Marketeers of New York University: Outlook and Risks for the U.S. Economy (Sept. 10, 2007),
available at http://federalreserve.gov/newsevents/speech/mishkin20070910a.htm (“The rise in
delinquencies in the subprime market has led to the collapse of some large subprime lenders and
2009]
655
throughout late 2007 and early 2008, consequences soon spread to Wall
Street and Bear Stearns, which in the summer of 2007 attempted to save
one of its hedge funds by injecting $1.6 billion into its reserves—
ultimately to no avail as both funds eventually lost all value.34
“By various accounts, the funds’ meltdown signaled the start of a
collapse in the vital element of trust that must exist between a firm like
Bear and its many customers.”35 This breakdown in trust would abruptly
evolve into a contagion, attacking the heart of Bear Stearns’s business
operations and bringing the eighty-five-year-old institution to its knees.36
For the fourth quarter of 2007, Bear reported a $2 billion write down in
mortgage securities,37 and posted its “first-ever quarterly loss” of $859
million.38
Unfortunately for the company, such losses would be
emblematic of Bear’s remaining existence as a going concern. Throughout
the rest of 2007 and into early 2008, Bear saw its stock value plummet,
client trust evaporate, and cohesion among its leadership unwind.39
B. The Perfect Storm: March 2008
To understand how Bear Stearns ultimately collapsed, it is first
important to explain Bear’s financing structure. As an investment bank,40
Bear relied on short-term (usually overnight) loans called repurchase
agreements (“repos”) to finance its daily activities and liquidity demands.41
inflicted substantial losses on holders of subprime [MBS] and of some . . . CDOs. . . . These
developments have contributed materially to the drop in demand for housing [in 2007].”).
34
See GARY SHORTER, CONG. RESEARCH SERV., BEAR STEARNS: CRISIS AND “RESCUE” FOR A
MAJOR PROVIDER OF MORTGAGE-RELATED PRODUCTS 2, Mar. 19, 2008, available at
http://assets.opencrs.com/rpts/RL34420_20080319.pdf (noting that soon after Bear’s loans to these
funds, “the funds lost all of their value and were allowed to wind down”).
35
Id.; see also Landon Thomas, Jr., Run on Big Wall St. Bank Spurs U.S.-Backed Rescue, N.Y.
TIMES, Mar. 15, 2008, at A1 (“The demise of the hedge funds began a slow but persistent loss of
market confidence in the bank . . . . Such erosion can be devastating for any investment bank,
especially one like Bear Stearns . . . .”).
36
See SHORTER, supra note 34, at 2 (noting that the initial breakdown in trust among Bear’s
customers would lead to unprecedented moves by the company to survive).
37
David Smith & Dominic Rushe, The Banking Twister Heading Your Way, SUNDAY TIMES
(London), Mar. 16, 2008, at B4 (“A month [after Bear attempted to save one of its hedge funds,] the
firm announced that the game was up for the funds, which had effectively lost all their value . . . .”).
38
SHORTER, supra note 34, at 2.
39
See Kate Kelly, The Fall of Bear Stearns: Lost Opportunities Haunt Final Days of Bear
Stearns—Executives Bickered Over Raising Cash, Cutting Mortgages, WALL ST. J., May 27, 2008, at
A1 (documenting internal developments at Bear Stearns following the failure of its hedge funds in the
summer of 2007 through January 2008).
40
Unlike commercial banks, investment banks do not take deposits from traditional individual
customers; rather, “[a]n investment bank’s activities” consist of “(1) managing an investment portfolio
. . . and (2) operating as a central market maker and counterparty” in financial markets. Dwight Jaffee
& Mark Perlow, Investment Banking Regulation After Bear Stearns, ECONOMISTS’ VOICE, Sept. 2008,
at 1, 1–2.
41
See Stephen A. Lumpkin, Repurchase and Reverse Repurchase Agreements, in INSTRUMENTS
OF THE MONEY MARKETS 59, 60 (Timothy Q. Cook & Robert K. Laroche eds., 1993) (“[Repurchase]
agreements usually are arranged with short terms to maturity—overnight or a few days.”); Stephen G.
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[Vol. 42:647
Repos are secured by collateral (including MBS) that the borrowing
institution promises to buy back at a specified date and at a specified price,
“which typically includes interest at an agreed upon rate.”42 In essence,
because repos were vital to Bear’s daily operations, they left Bear at the
mercy of lender sentiment.43 Thus, when the subprime mortgage crisis
unfolded, lenders grew more fearful of entering into collateralized loans
with Bear given the firm’s large exposure to mortgage products.44 Instead,
lenders hoarded their liquidity, uncertain about the health of their own
balance sheets and those of their counterparties.45 “And it was the
[eventual] refusal of Bear’s repo lenders to extend overnight loans that
confirmed that Bear had a liquidity crisis [in mid-March 2008].”46
However, the growing failure of Bear to secure its vital repos in March
2008 was not the only factor that led to the firm’s “liquidity crisis.”47
While it may be said that Bear’s repo problems kept it from pulling money
in, Bear’s exposure to a variety of deteriorating assets led to losses that
eroded its already meager capital.48
For example, Bear, like other investment banks, initially appealed to
investor concerns of security by selling a type of insurance product along
Cecchetti, Crisis and Responses: The Federal Reserve and the Financial Crisis of 2007–2008, at 10
(Nat’l Bureau of Econ. Res., Working Paper No. 14134, 2008), available at, http://www.nber.org/
papers/w14134.pdf (“Large financial institutions that hold various types of assets use repos to finance
their short-term liquidity needs—and those needs have grown astronomically.”). Amazingly, Bear
Stearns borrowed “more than 30 times the value of its $11 billion equity base,” amounting to a
“leverage ratio of over 30 to 1.” Thomas, supra note 35. To make matters more complicated, Bear
used large amounts of this borrowed money to invest in the same CDOs it was selling to other
investors. See Kelly et al., supra note 30 (“The problems can be exacerbated because many hedge
funds invest in CDOs with the help of borrowed money. To buy a triple-A rated CDO note for $1,000,
it is common for a hedge fund to put down only $100 of its own money . . . .”).
42
See Lumpkin, supra note 41, at 59, 62.
43
See Gabilondo, supra note 6, at 19 (“It was lender sentiment [in the repo market] that [Bear’s]
managers considered when evaluating the severity of the firm’s liquidity crisis.” (internal citation
omitted)).
44
See id. (“Anxious about market conditions, these lenders preferred to hoard liquidity rather than
to enter into collateralized loans.”). This phenomenon was symptomatic of the larger financial crisis in
which banks grew so fearful of lending to one another that access to available credit became very
difficult to secure. See Cecchetti, supra note 41, at 12 (“[T]he overriding consideration in the refusal of
banks to lend to one another must have become the concern over credit risk—that is, the risk that
borrowers would fail to repay.”).
45
See Randall S. Kroszner, Governor of the Bd. of the Fed. Reserve, Remarks at the Risk
Management Association Annual Risk Management Conference: Strategic Risk Management in an
Interconnected World (Oct. 20, 2008), available at http://federalreserve.gov/newsevents/speech/
kroszner20081020a.htm (“Uncertainty about the value of assets and other exposures, as well as
uncertainty about the ability of institutions to sustain continued access to funding, has caused financial
institutions to operate with great caution and hoard funds.”).
46
Gabilondo, supra note 6, at 19.
47
Donald L. Kohn, Vice Chairman of the Bd. of the Fed. Reserve, Speech at the Federal Reserve
Bank of New York and Columbia Business School Conference on the Role of Money Markets (May
29, 2008), available at http://federalreserve.gov/newsevents/speech/kohn20080529a.htm.
48
See Geithner, supra note 6 (“The rumors of Bear’s failing financial health caused its balance of
unencumbered liquidity . . . to decline sharply . . . .”).
2009]
657
49
with the MBS and CDOs Bear promoted. Known as credit default swaps
(“CDS”), these insurance contracts were marketed to investors as an
effective way to hedge risks associated with the default of underlying
mortgage loans.50 Essentially, CDS enabled investors in CDOs or MBS to
protect themselves in the event the underlying investment defaulted, by
paying a periodic fee in exchange for the promised contingency payment.51
Furthermore, even those investors who had not bought mortgaged-related
products could purchase CDS as a type of side bet that loans would default
and the investor would be paid the value of the CDS coverage.52 CDS
created systemic risk because the same investment banks that were selling
these contracts were also buying them from other financial guarantors to
secure the CDS they had sold.53 Because the CDS market was largely
unregulated,54 the aggregate amounts of these contracts skyrocketed to an
estimated total amount of $60 trillion,55 with Bear Stearns alone holding
roughly “$14.2 trillion of notional value in derivative contracts [including
CDS] outstanding with thousands of counterparties.”56
Ultimately, as mortgage loans defaulted in vast numbers, Bear’s CDS
liability was triggered. But there was one problem: “there was no money
49
See SHORTER, supra note 34, at 4.
See 60 Minutes: A Look at Wall Street’s Shadow Market (CBS television broadcast Oct. 5,
2008), available at http://www.cbsnews.com/stories/2008/10/05/60minutes/main4502454.shtml (“A
[CDS] was available [to investors], marketed to them as a risk-saving device for buying a risky
financial instrument.” (quoting Michael Greenberger, Prof. of Law, Univ. of Maryland)); see also
Frank Partnoy & David A. Skeel, Jr., The Promise and Perils of Credit Derivatives, 75 U. CIN. L. REV.
1019, 1021 (2007) (“[A] credit default swap is a private contract in which private parties bet on a debt
issuer’s bankruptcy, default, or restructuring.”). As credit derivatives, CDS derive their value from an
underlying “price, rate, index, or financial instrument,” such as a MBS or CDO. David Mangle, Credit
Derivatives: An Overview, ECON. REV., Fourth Quarter 2007, at 1, available at http://www.frbatlanta.
org/filelegacydocs/erq407_mengle.pdf.
51
See Franklin Allen & Douglas Gale, Systemic Risk and Regulation 4–5 (Wharton Fin. Inst. Ctr.,
Working Paper No. 95-24, 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id
=787797 (describing CDS arrangements).
52
See Partnoy & Skeel, supra note 50, at 1022 (“Like other derivatives, credit default swaps can
be used not only for hedging, but also for speculation or arbitrage.”); 60 Minutes: Financial Weapons
of Mass Destruction (CBS Television broadcast Oct. 26, 2008), available at http://www.cbsnews.com/
stories/2008/10/26/60minutes/main4546199.shtml?tag=currentVideoInfo;segmentUtilities
(“[CDS]
were essentially private insurance contracts that paid off if the investment went bad. But you didn’t
have to actually own the investment to collect on the insurance.”).
53
See Geithner, Foreign Relations, supra note 25 (“[O]n the assets they retained, these same
institutions purchased insurance from financial guarantors and other firms that were exposed to the
same risks.”).
54
See 60 Minutes, supra note 50 (discussing how CDS regulation had been lacking since 2000).
Following the stock market crash of 1907, state laws across the country made betting arrangements
(such as those embodied by CDS) a felony. Id. However, the Commodity Futures Modernization Act
of 2000 effectively removed the restrictions placed on these transactions. Id.; see also Commodity
Futures Modernization Act of 2000, 7 U.S.C. § 27f(c) (2006) (preempting state regulation of CDS
transactions whose initial manifestation occurred in gambling houses known as “bucket shops”).
55
Jon Hilsenrath et al., Worst Crisis Since ‘30s, with No End Yet in Sight, WALL ST. J., Sept. 18,
2008, at A1.
56
Cecchetti, supra note 41, at 17. This figure is not totally comprised of CDS, as the firm also
held other types of derivative products, including futures and options. Id.
50
658
[Vol. 42:647
57
behind the commitments.” The same institutions that had sold CDS were
not legally required to set aside the necessary cash to cover “their potential
losses.”58 Together with the defection of its hedge fund customers who
could easily withdraw their large deposits,59 the CDS losses suffered by
Bear helped set the stage for a classic run on the (investment) bank.60
Amid growing market anxiety, key counterparties began canceling their
investment and brokerage accounts with Bear,61 with “[s]ome [investors]
pulling their cash . . . for fear it could get locked up if there was a
bankruptcy.”62 As clients withdrew their business, Bear watched as its
credit dissolved, and it was only a matter of time before Bear’s problems
became a public concern.63
C. The Time of Reckoning
Bear’s access to and drain of liquidity continued to develop in early
2008. On March 10, “rumors began to circulate in the market that there
were significant liquidity problems at Bear Stearns itself.”64 These rumors
were then exacerbated by attempts to quell them, as Bear executives and
Moody’s Investors Service (“Moody’s”) both issued statements aimed at
reassuring investors that Bear was in good health, emphasizing the firm’s
large cash holdings of approximately $18 billion.65 Nonetheless, such
actions could not stop the intensifying “exit by counterparties” Bear was
57
60 Minutes, supra note 50. More precisely, CDS are traded as over-the-counter (“OTC”)
derivatives without strict regulatory oversight, and as such “contracts can be traded—or swapped—
from investor to investor without anyone overseeing the trades to ensure the buyer has the resources to
cover the losses if the security defaults.” Janet Morrissey, Credit Default Swaps: The Next Crisis?,
TIME, Mar. 17, 2008, http://www.time.com/time/business/article/0,8599,1723152,00.html.
58
60 Minutes, supra note 50.
59
See Morris & Shin, supra note 17, at 15.
60
See Bernanke, Kansas City, supra note 11 (“The collapse of Bear Stearns was triggered by a
run of its creditors and customers, analogous to the run of depositors on a commercial bank.”).
61
See Kate Kelly, SEC Will Scour Bear Trading Data—Documents Reveal Who Was Exiting
Deals in Final Days, WALL ST. J., May 28, 2008, at A1 (describing how several important investment
institutions sought to cancel their business connections with Bear in anticipation of the firm’s collapse).
The exit by counterparties actually increased market stress, as these parties struggled to find substitute
transaction avenues. See Serena Ng, Crisis on Wall Street: Credit-Default Market Freezes as Risk
Grows, WALL ST. J., Sept. 19, 2008, at C3 (discussing how this phenomenon negatively affected
greater market confidence).
62
Kelly et al., supra note 6.
63
See Kate Kelly et al., In Dealing with Bear Stearns, Wall Street Plays Guardedly, WALL ST. J.,
Mar. 13, 2008, at C1 (“Bear’s fundamental issue isn’t liquidity or capital as much as the erosion of its
business model as a result of the credit crunch.”).
64
JPMorgan Chase & Co., Definitive Proxy Statement (Form DEFM14A), at 27, (Apr. 28, 2008),
available at http://files.shareholder.com/downloads/ONE/692396293x0xS1193125-08-92860/777001/
filing.pdf.
65
See id. (“Moody’s clarified that . . . Bear Stearns’ . . . current ratings outlook was stable
[and] . . . Bear Stearns issued a press release denying the market rumors regarding its liquidity
position.”); Ruddy Boyd & Doris Burke, The Last Days of Bear Stearns, FORTUNE, Apr. 14, 2008, at
86.
2009]
659
66
experiencing.
And “a number of U.S.-based fixed-income and stock
traders that had been actively involved with Bear . . . had reportedly
decided by March 10 to halt such involvement.”67
On Tuesday, March 11, investors continued to grow anxious over the
rumors, and ING Group NV, “a major asset-management company,”
stopped doing trades with Bear68—it was clear that “[c]redit was drying
up.”69 Again, in an effort to calm market fears, Bear Stearns executives
decided that President and CEO Alan Schwartz should address the public
live from a media conference in West Palm Beach, Florida.70 Mr.
Schwartz did so the next morning, appearing on CNBC and stating that
“we don’t see any pressure on our liquidity, let alone a liquidity crisis.”71
Meanwhile, “prime-brokerage clients continued to pull their money” from
Bear,72 “causing senior management . . . to become concerned that if these
circumstances accelerated Bear Stearns’s liquidity could be negatively
affected.”73 When Mr. Schwartz arrived back in New York late
Wednesday, March 12, he assembled “senior executives to discuss how to
save the firm.”74 But, his efforts would prove fruitless.
By Thursday, March 13, “market speculation had swelled” regarding
Bear’s access to credit and “[a]round 4:30 p.m., Mr. Schwartz was
convinced that Bear was facing a desperate situation.”75 Confronted with
the ongoing demands of clients and lenders to withdraw their money from
Bear, the firm had seen its liquidity reserves depleted to nearly $2 billion, a
loss of approximately $15 billion in four days.76 Frantic to find a solution,
Mr. Schwartz contacted Jamie Dimon, CEO of JPMorgan Chase, in a bid
to negotiate a deal with the company, which had a long transactional
history with Bear Stearns.77 Mr. Dimon agreed to help, dispatching senior
66
See Kelly et al., supra note 6 (explaining the swift departure of customers that had previously
been willing to trade with Bear).
67
SHORTER, supra note 34, at 3.
68
Id.
69
Boyd & Burke, supra note 65.
70
See Kelly et al., supra note 6.
71
Interview by David Faber with Alan Schwartz, President & CEO, Bear Stearns, on CNBC:
First on CNBC (CNBC television broadcast Mar. 12, 2008), available at http://video.nytimes.com/
video/2008/03/14/business/1194817092072/bear-chief-firm-was-on-solid-ground.html.
72
Kate Kelly, The Fall of Bear Stearns: Fear, Rumors Touched Off Fatal Run on Bear Stearns,
WALL ST. J., May, 28, 2008, at A1.
73
JPMorgan Chase & Co., supra note 64, at 27.
74
Kelly, supra note 72.
75
William Sluis et al., Bailout of Wall Street Firm Shocks Markets; Federal Reserve Forced to
Save Company Squeezed by Mortgage Securities, CHI. TRIB., Mar. 15, 2008, at C1.
76
See Robin Sidel et al., The Week that Shook Wall Street: Inside the Demise of Bear Stearns,
WALL ST. J., Mar. 18, 2008, at A1 (“By [Thursday], Bear Stearns’s cash position had dwindled to just
$2 billion.”).
77
See Kelly, supra note 72 (describing how Schwartz contacted Dimon during his birthday party
and related to Dimon “[l]et’s do something”); see also Mizen, supra note 26, at 549 (noting that
JPMorgan Chase served effectively as Bear Stearns’s “banker”).
660
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JPMorgan traders to Bear to review the firm’s financial position.78 Upon
review, “[Dimon’s] group appeared stunned,”79 and it became apparent
later in the evening that Bear would not be able to secure unassisted private
financing from JPMorgan or any another institution.80 Bear’s directors
approved an emergency bankruptcy filing, and the firm’s corporate
counsel, Cadwalader, Wickersham & Taft LLP, began drafting necessary
documentation.81 Representatives from the SEC and the New York Fed,
which had been closely monitoring the situation, participated in a
conference call with members of the Board of Governors of the Fed and
the Treasury Department to discuss the implications of a Bear
bankruptcy.82 Chaotic discussions continued throughout the evening and
into the early morning, but no clear resolution was in sight.83
At 5 a.m. on Friday, March 14, Timothy Geithner (then-President and
CEO of the New York Fed) convened a conference call “with top
government officials” to rule on the fate of Bear Stearns.84 Recognizing
Bear’s highly complex interrelationships with thousands of counterparties,
and fearing that a failure of Bear could touch off a domino effect among
other institutions in similar market positions,85 “the Federal Reserve, in
close consultation with the Treasury Department, agreed to provide
funding to Bear Stearns through JPMorgan Chase.”86
Because Bear Stearns was an investment bank, it could not use its
collateral to gain a direct loan from the Fed’s “discount window,”87
necessitating the utilization of emergency lending authority.88 Although
technically the Fed did not lend directly to Bear, by providing the funds to
JPMorgan to then re-issue to the firm, the Fed itself assumed the risk of the
78
See Kelly, supra note 72; see also JPMorgan, supra note 64, at 28 (“Representatives of
JPMorgan Chase and officials from the U.S. Treasury Department, the New York Fed and the Board of
Governors of the Federal Reserve System engaged in discussions regarding how to resolve the liquidity
deterioration at Bear Stearns.”).
79
80
See JPMorgan, supra note 64, at 28.
81
82
See Geithner, supra note 6.
83
See Sidel et al., supra note 76 (“‘It was a traumatic experience,’ says one person who
participated. Sleep deprivation set in, with some of the hundreds of attorneys and bankers sleeping
only a few hours . . . .”).
84
85
For example, “Bear risked defaulting on extensive ‘repo’ loans . . . . If that happened, other
securities dealers would see access to repo loans become more restrictive[,]” not to mention the fear
that would be set off in the CDS markets. Kelly et al., supra note 6.
86
Ben S. Bernanke, Chairman of the Bd. of the Fed. Reserve, Testimony Before the U.S. Senate
Comm. on Banking, Hous. & Urban Affairs (Apr. 3, 2008), available at http://federalreserve.gov/
newsevents/testimony/bernanke20080403a.htm.
87
For purposes of this Note, the discount window is best understood as a lending mechanism
which helps the central bank “ensure the basic stability of the payment system . . . by supplying
liquidity during times of systemic stress.”
The Federal Reserve Discount Window,
http://www.frbdiscountwindow.org/discountwindowbook.cfm?hdrID=14&dtlID=43#introduction (last
visited Nov. 16, 2009).
88
See Cecchetti, supra note 41, at 17.
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661
89
loan. “By any measure, this action was extraordinary,” as the New York
Fed provided Bear with approximately $12.9 billion, a move not seen since
the Great Depression.90 The twenty-eight day government guarantee was
greeted with “high-fives” and cheers among Bear executives, who believed
that the term of the loan would allow them enough time to find a private
buyer for their firm.91 To the contrary, news of the loan was not nearly as
welcomed by Bear’s counterparties, or the market as a whole, as Friday
saw Bear’s common stock close down forty-seven percent, and the major
ratings agencies (Standard & Poor’s, Moody’s, and Fitch) drastically
downgraded Bear’s long- and short-term credit ratings.92 Based on these
developments, then-Secretary Paulson realized the loan was not a viable
solution and contacted Mr. Schwartz that same evening,93 informing the
CEO that the Fed-backed liquidity “would not be available on Monday
morning.”94 Suddenly, twenty-eight days became two, as Paulson told
Schwartz “[he] need[ed] to have a deal by Sunday night.”95 With most of
Bear’s customers and clients abandoning ship, there seemed to be only one
likely suitor: JPMorgan.
D. Shotgun Marriage Made in Heaven
Saturday morning, March 15, Mr. Schwartz together with senior
management of Bear Stearns met with their counterparts at JPMorgan and
J.C. Flowers & Co. (“JCFlowers”) to discuss the potential for mergers or
acquisitions.96 Throughout the day and into the evening, Bear’s leadership
attempted to negotiate a realistic proposal that could be finalized by late
Sunday evening before the open of Asian and European markets.97 At the
same time, Bear’s legal team again began to analyze potential bankruptcy
and/or liquidation scenarios, mindful of the limited protections available to
the firm under the United States Bankruptcy Code, as well as the
approaching Sunday deadline.98
Negotiations continued into early Sunday morning, March 16.
However, it soon became apparent that a purely private sector solution
would not be possible. JPMorgan reported that “it would need some level
of financial support from the New York Fed” to undertake a Bear Stearns
89
See Kelly et al., supra note 6.
Cecchetti, supra note 41, at 17.
See Sluis et al., supra note 75.
92
JPMorgan, supra note 64, at 28.
93
See Kelly, supra note 16.
94
95
96
97
See Kelly, supra note 16 (providing detailed documentation of the negotiations as they
unfolded on March 15).
98
See id. (noting that Bear’s status as a broker would present serious limitations and risks in any
type of bankruptcy filing).
90
91
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acquisition, and JCFlowers was having difficulty finding institutions to
finance any type of transaction with Bear Stearns.99 As such, officials
from the New York Fed were advised of the situation and “indicated that
[they] would be willing to consider the possibility of an arrangement that
would result in the New York Fed assuming some of the risk associated
with” a JPMorgan takeover.100 Initially, the Fed agreed to provide $30
billion of “non-recourse funding”101 to JPMorgan secured by collateral
consisting mainly of risky MBS and other assets that Bear owned.102 This
liquidity infusion would enable JPMorgan to acquire Bear and immediately
guarantee its outstanding debts to remaining counterparties and
customers—a vital factor in returning trust to the shaken global markets.103
Armed with this taxpayer-based guarantee, JPMorgan approached
Bear’s board of directors with a finalized stock merger agreement in which
Bear’s common stock would be exchanged for JPMorgan common stock
for $2 per share (the “original offer”).104 As a company that had a pershare value of approximately $171 in January 2007,105 the original offer
did not sit well with Bear’s board, which voiced its disagreement and
worried that acceptance would constitute a breach of their fiduciary duty to
stockholders.106 Nevertheless, the fear of imminent bankruptcy coupled
with the fact that no other solution was feasible (and increased pressure
from the government) led to an endorsement by Bear’s board of the
original offer, with the transaction announced in a joint press release
Sunday evening.107
Before the original offer could be presented to Bear’s shareholders for
99
Id. at 31.
A non-recourse loan is one in which the Fed would not be able to raise a legal claim against
JPMorgan in the event the loan was not repaid and the Fed lost money. See MARC LABONTE, CONG.
RES. SERV., FINANCIAL TURMOIL: FEDERAL RESERVE POLICY RESPONSES 7 (2008), available at
http://assets.opencrs.com/rpts/RL34427_20080407.pdf.
102
See JPMorgan, supra note 64, at 31.
103
See id. (“[B]ased on the New York Fed’s willingness to provide the $30 billion special funding
facility, JPMorgan Chase thought that it would be able to work towards negotiating a stock-for-stock
merger with Bear Stearns . . . with the need to guaranty certain obligations . . . effective immediately.”).
104
Id.
105
See Madlen Read & Joe Bel Bruno, Bear Stearns Shareholders OK Buyout by JPMorgan,
USA TODAY, May 29, 2008, http://www.usatoday.com/money/economy/2008-05-29-3197519795_
x.htm.
106
See JPMorgan, supra note 64, at 31–32 (“Bear Stearns registered its objections to [the original
offer and] . . . [r]epresentatives of Bear Stearns’ legal advisors reviewed the fiduciary duties of the
board of directors, including the duties of directors if a company is insolvent or approaching
insolvency.”). Following the eventual endorsement of the merger, numerous “class action lawsuits
[were] filed against Bear Stearns, its board of directors and certain of Bear Stearns’ present and former
executive officers” alleging, inter alia, breach of fiduciary duty. Id. at 48–49.
107
See id. at 33 (“[T]he Bear Stearns board of directors unanimously approved the agreement . . . .
Later that evening, JPMorgan Chase and Bear Stearns issued a joint press release announcing the
transaction.”); see also Holman W. Jenkins, Jr., The Short, Happy Death of Bear, WALL ST. J., Mar. 26,
2008, at A14 (“[The Fed] had plenty of legitimate clout, which it apparently used to virtually dictate the
original $2 share price.”).
100
101
2009]
663
approval, “perceived deficiencies” and market reaction concerning the
merger’s closure would necessitate amendments.108 With the immediate
concern of bankruptcy pacified, Bear Stearns and JPMorgan executives
met throughout the week of March 17 to discuss merger revisions that
would be more acceptable to Bear’s shareholders and market
speculation.109 By week’s end, no revised agreement had been reached,
and for a third time Bear’s legal team met to discuss the possibility that the
firm would have to file for bankruptcy on Monday, March 24.110 Anxiety
increased among Bear’s creditors that the merger would fall through given
the low offer proposed, with tense negotiations occurring back and forth
between Bear’s and JPMorgan’s legal offices.111 “At one point, J.P.
Morgan threatened to pull financing . . . [and Bear’s] directors talked
briefly about suing J.P. Morgan[,] . . . [b]ut they quickly realized their
position was untenable.”112 Finally, by Monday, March 24, the parties
reached a provisional agreement to amend the original offer.113 Most
importantly, the new merger agreement appealed to investors and market
confidence by increasing the stock transfer rate from $2 to $10, and
obligated JPMorgan to assume the first $1 billion in losses as deducted
from the $30 billion guarantee to be provided by the New York Fed.114
For many, a crisis had been averted, but at what cost?115 By pledging
$29 billion of hard-earned taxpayer money through its discount window to
an investment bank foiled by bad decisions,116 the Fed’s actions set a
108
See JPMorgan, supra note 64, at 33 (describing how market reactions to the original offer
prompted JPMorgan and Bear executives to enter into revised transaction negotiations).
109
Id.
110
See id. at 34 (“[I]f the New York Fed and JPMorgan Chase were unwilling to maintain their
funding of Bear Stearns . . . [Bear] would not be able to open for business on Monday . . . .”).
111
See id. (“[R]epresentatives of Bear Stearns contacted JPMorgan Chase’s counsel . . . to notify
JPMorgan Chase that its proposal, as presently formulated, was not acceptable to the Bear Stearns
board . . . .”).
112
113
See JPMorgan, supra note 64, at 34–35.
114
See id. at 35–36 (outlining the terms of the new merger agreement). “This means that if the
value of the assets [accepted by the Fed] turn out to be less than $29 billion, the [Fed] would suffer a
loss.” Cecchetti, supra note 41, at 18. Since the time the Fed accepted these assets as collateral for the
loan to October of 2008, taxpayers lost approximately $2.2 billion dollars, based on the ongoing
deterioration of mortgage values. Editorial, The Fed Takes a Writedown, WALL ST. J., Oct. 28, 2008, at
A16.
115
Given the ongoing corrosion of key markets, the total loss that will be suffered by taxpayers as
a result of the Bear Stearns bailout remains to be seen. “[I]n October, six months after taking on $29
billion from investment bank Bear Stearns’ loan portfolio, the Fed decided to write down $2 billion of
the holdings.” Jon Hilsenrath, Bernanke’s Fed, Echoing FDR, Pursues Ideas and Action, WALL ST. J.,
Dec. 15, 2008, at A2.
116
See Jenkins, supra note 107 (“Opening up its loan window to investment banks, and through
them to their hedge fund clients, [the Fed] has alleviated the fear of fire sales of mortgage assets.”).
For an interesting historical account of the creation and use of the Fed’s discount window, see Anna J.
Schwartz, The Misuse of the Fed’s Discount Window (Apr. 9, 1992), in FED. RESERVE BANK OF ST.
LOUIS REV., Sept./Oct. 1992, at 60–63, available at http://research.stlouisfed.org/publications/review/
92/09/Misuse_Sep_Oct1992.pdf.
664
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precedent that risky investors who were “too big to fail” would be saved
from their own self-perpetuated demise.117 Soon after the bailout, critics
denigrated the Fed’s actions as uncharacteristic of a capitalist society,118
while others used the event as a catalyst to launch attacks against the
broader financial regulatory system.119 Now that the Fed is willing to use
its resources to save private investment firms whose bankruptcy could
harm the entire economy, what new types of regulation should such
businesses be subject to? “As the Bear Stearns episode illustrates, some of
the modern-day financial institutions that are too big to fail are not
depository institutions that fall under the strict regulatory umbrella that
accompanies membership in the Federal Reserve System.”120 The
remainder of this Note analyzes the legal authority available to the Fed
during the Bear Stearns collapse, why this authority has been criticized as
deficient, and how scholarly review of twenty-first century financial threats
may lead to the revision and modification of twentieth-century financial
regulation.
III. AN “UNUSUAL AND EXIGENT” LENDER OF LAST RESORT
A. Too Big to Fail
“Legally, the Fed can extend virtually unlimited support to our
financial system,”121 and since the 1930s the Fed has had the authority to
issue direct loans to private businesses through its discount window.122
Nonetheless, before the Bear Stearns predicament, the Fed traditionally
reserved discount window loans for those institutions that were subject to
the Fed’s strict supervisory protocol, namely, heavily regulated depository
117
Crittenden & Eckblad, supra note 4; see also LABONTE, supra note 101, at 12 (“Institutions
that are too big to fail are ones that are deemed to be big enough that their failure could create systemic
risk, the risk that the financial system as a whole would cease to function smoothly.”). The problem of
encouraging risky behavior by bailing out failing institutions is commonly referred to as “moral
hazard.” See id. at 11.
118
See, e.g., Gary S. Becker, We’re Not Headed for a Depression, WALL ST. J., Oct. 7, 2008, at
A27 (“The ‘too big to fail’ approach to banks and other companies should be abandoned as new longterm financial policies are developed. Such an approach is inconsistent with a free-market economy.”).
119
See, e.g., Bernanke, Kansas City, supra note 11 (criticizing the regulatory framework of the
American financial system as inefficient for being ambiguous in its legal mandates); see also William
Neikirk et al., Call Grows for Tough Financial Regulation; Candidates, Congress Consider
Intervening in Banking, Markets, CHI. TRIB., Mar. 28, 2008, at C1 (“Political fervor is growing for a
broad re-regulation of America’s financial markets after a major credit crunch pummeled Wall Street
and Main Street, sent the economy sinking and threatened a market meltdown.”).
120
LABONTE, supra note 101, at 12.
121
Altman, supra note 15.
122
See LABONTE, supra note 101, at 3–4 (discussing the use of the Fed’s discount window in the
past). The statutory authority for the Fed’s discount window lending is provided for in section 10(b) of
the Federal Reserve Act, which provides that “[a]ny Federal Reserve bank . . . may make advances to
any member bank on its time or demand notes having maturities of not more than four months and
which are secured to the satisfaction of such Federal Reserve bank.” Federal Reserve Act, 12 U.S.C. §
347b(a) (2006).
2009]
665
123
institutions.
In essence, “[i]n exchange for putting up with regulation
from the Fed and requirements over how much capital they can hold,
[commercial] banks have access to the ‘discount window,’ at which they
can borrow emergency cash in exchange for sound collateral.”124
However, despite its seemingly limitless potential to rescue ailing
businesses, the discount window has long been a secondary tool of the Fed
in altering market operations,125 and even those firms which could access
the Fed’s window in the past have rarely done so for a couple of reasons.
First, from the government’s perspective, the Fed has likely been hesitant
to issue loans because each time it does so a precedent is established that
compounds moral hazard, or the tendency of market participants to engage
in risky behavior irrespective of the consequences given the potential for a
public rescue.126 Second, when a private enterprise looks to the Fed’s
discount window for a loan, it usually means the government is the last
resort for the company, which in turn demonstrates weakness to the greater
market.127 Thus, as a corollary of both government and private reluctance,
rarely would one see the full extent of the Fed’s lending power in action.128
But, what happens when one business’s failure threatens the larger
economy the Fed is obligated to protect, as Bear Stearns’s bankruptcy did?
Similarly, how can the Fed respond to a systemic threat from an institution
not subject to its “regulatory regime?” The answer to these questions lies
in a little known provision of the Federal Reserve Act. In such
circumstances, the Fed can call on emergency lending authority to protect
the larger financial system, and in doing so provide liquidity to any
123
See Greg Ip et al., Stronger Steps: Fed Offers Banks Loans to Ease Credit Crisis, WALL ST. J.,
Aug. 18, 2007, at A1 (“[T]he discount window’s reach in the current crisis is limited by the fact that
only [commercial] banks can use it, and they aren’t the ones facing the greatest stains. Rather the
strains are being felt by nonbanks . . . .”).
124
Neil Irwin, Fed Leaders Ponder an Expanded Mission; Wall Street Bailout Could Forever
Alter Role of Central Bank, WASH. POST, Mar. 28, 2008, at A01.
125
See LABONTE, supra note 101, at 4 (“The Fed’s main policy tool shifted from the discount
window to open market operations several decades ago.”).
126
See Ben S. Bernanke, Chairman of the Bd. of Governors of the Fed. Reserve, Speech at the
Federal Reserve Bank of Atlanta Financial Markets Conference: Liquidity Provision by the Federal
Reserve (May 13, 2008), available at http://www.federalreserve.gov/newsevents/speech/
bernanke20080513.htm [hereinafter Bernanke, Atlanta I]. Chairman Bernanke stated:
A central bank that is too quick to act as liquidity provider of last resort risks
inducing moral hazard; specifically, if market participants come to believe that the
Federal Reserve or other central banks will take such measures whenever financial
stress develops, financial institutions and their creditors would have less incentive to
pursue suitable strategies for managing liquidity risk and more incentive to take such
risks.
Id.; see also Cassandra Jones Havard, “Goin’ Round in Circles” . . . and Letting the Bad Loans Win:
When Subprime Lending Fails Borrowers: The Need for Uniform Broker Regulation, 86 NEB. L. REV.
737, 752–54 (2008) (explaining moral hazard in the context of the mortgage crisis).
127
See Ip et al., supra note 123 (“[The discount window] is little used because it generally carries
a stigma, since it is seen as a struggling bank’s last resort.”).
128
Cf. Nelson D. Schwartz, A History of Public Aid During Crises, N.Y. TIMES, Sept. 7, 2008, at
A27 (noting government’s past intervention in the private market during periods of financial crisis).
666
[Vol. 42:647
129
institution, not just those within its regulatory reach. It is this emergency
authority that gives credence to the Fed’s characterization as “lender of last
resort.”130 And it is precisely this use of the Fed’s emergency authority to
rescue Bear Stearns that has incited reconsideration of the Fed’s regulation
of investment banks—the argument being that if firms can get public
money, they should be subject to heightened public oversight by the
agency lending that money.131
The specific legal provision authorizing emergency lending to private
enterprises is section 13(3) of the Federal Reserve Act.132 That section
provides in pertinent part:
3. Discounts for Individuals, Partnerships, and Corporations.
In unusual and exigent circumstances, the Federal Reserve
Board, by the affirmative vote of not less than five members,
may authorize any Federal reserve bank, during such periods
as the said board may determine, . . . to discount for any
individual, partnership or corporation, notes, drafts, and bills
of exchange when such notes, drafts, and bills of exchange
are indorsed or otherwise secured to the satisfaction of the
Federal Reserve bank.133
129
See LABONTE, supra note 101, at 1 (“Lending to non-members requires emergency statutory
authority that has not been used in more than 70 years.” (citation omitted)).
130
Id. at 2; see also Frederic S. Mishkin, Gov. of the Bd. of the Fed. Reserve, Speech at the
Caesarea Forum of the Israel Democracy Institute: Global Financial Turmoil and the World Economy
(July 2, 2008), available at http://www.federalreserve.gov/newsevents/speech/mishkin20080702a.htm
(“[I]t is critical that the Federal Reserve acts as lender of last resort when financial stability is
threatened . . . .”).
131
See, e.g., Donald L. Kohn, Vice Chairman of the Bd. of the Fed. Reserve, Speech at the
Federal Reserve Bank of Richmond’s Credit Market Symposium (Apr. 17, 2008), available at
http://federalreserve.gov/newsevents/speech/kohn20080417a.htm (“[I]n my view greater regulatory
attention will need to be devoted to the liquidity risk-management policies and practices of major
investment banks.”).
132
Federal Reserve Act, 12 U.S.C. § 343 (2006).
133
Id. § 343 (emphasis added). Interestingly, in Bear’s case, “[t]he required number of five
members of the Board of Governors was not present on the day in question. One of them was out of
town and ratified the vote when he returned, but the first loan was already in motion.” Walker F. Todd,
The Bear Stearns Rescue and Emergency Credit for Investment Banks, AIER, Aug. 11, 2008,
http://www.aier.org/research/commentaries/445-the-bear-stearns-rescue-and-emergency-credit-forinvesmtn-banks. The legal authority allowing for votes of less than five members of the Board of
Governors is provided for by section 11(r)(2)(A)(ii)(I)–(IV) of the Federal Reserve Act, which
mandates:
A. Any action that the Board is otherwise authorized to take under Section 13(3)
may be taken upon the unanimous vote of all available members then in office, if:
I. unusual and exigent circumstances exist and the borrower is unable to
secure adequate credit accommodations from other sources;
II. action on the matter is necessary to prevent, correct, or mitigate serious
harm to the economy or the stability of the financial system of the United
States;
III. despite the use of all means available (including all available telephonic,
telegraphic, and other electronic means), the other members of the Board
2009]
667
Originally enacted in 1932, the law was an outgrowth of the bank
failures of the early twentieth century and has been used in different
contexts over its seventy-seven-year history, albeit never in the same
manner as in the Bear Stearns case.134 Aside from the requirement that five
governors vote to approve a loan under section 13(3), the provision has
few limitations in terms of the amount that can be lent, or the means by
which the Fed can do so. The condition that collateral be offered “to the
satisfaction of the Federal Reserve bank,” is contingent upon a plethora of
extrinsic considerations (including systemic risk) that at times may seem
inconsistent.135 For example, some have criticized the Fed for accepting
the collateral pledged by Bear Stearns or American International Group
(“AIG”) under section 13(3),136 while Lehman Bros. (“Lehman”) was
allowed to go into bankruptcy.137 Also, discount window lending is
usually secured through collateral possessing a good credit rating, which
was certainly not the case in the loans made to Bear Stearns.138
have not been able to be contacted on the matter; and
IV. action on the matter is required before the number of Board members
otherwise required to vote on the matter can be contacted through any
available means (including all available telephonic, telegraphic, and other
electronic means) . . . .
Federal Reserve Act, 12 U.S.C. § 248(r) (2006); see also Minutes of the Board of Governors of the
Federal Reserve System 2–3 (Mar. 14, 2008), available at http://www.federalreserve.gov/
newsevents/press/other/other20080627a1.pdf (documenting the Board’s vote with regard to factors
specified by section 11(r)(2)(A)(ii)).
134
See Fettig, supra note 8, at 15–19, 44–47 (describing the historical evolution of section 13(3));
Fettig, supra note 4, at 34 (providing a concise timeline of the development of section 13(3) from 1932
to present).
135
12 U.S.C. § 343 (2006).
136
See Press Release, Fed. Reserve (Sept. 16, 2008), available at http://www.federalreserve.gov/
newsevents/press/other/20080916a.htm (“The Federal Reserve Board . . . authorized the Federal
Reserve bank of New York to lend up to $85 billion to [AIG] under section 13(3) of the Federal
Reserve Act.”).
137
See Adam Shell et al., No White Knight Emerges to Rescue Lehman Bros., USA TODAY, Sept.
15, 2008, at 1B (“The failure to get a Lehman deal was due largely to the federal government’s refusal
to provide interested buyers such as Barclays with the kind of support that JPMorgan Chase received
when it bought troubled investment bank Bear Stearns in March.”); Sale Possible as Lehman Sits on
Brink, CHI. TRIB., Sept. 11, 2008, at C1 (“Compounding anxiety is that Lehman, unlike smaller rival
Bear Stearns, might not be able to count on a lifeline from the government.”).
138
Technically, Federal Reserve Banks may only provide advances and discounts to individual
institutions when such extensions of credit are “secured to the satisfaction of the Federal Reserve
bank.” Federal Reserve Act, 12 U.S.C. §§ 343, 347b(a) (2006). For purposes of discount window
lending, the collateral being pledged by borrowers must “meet regulatory standards for sound asset
quality,” meaning that assets held by solvent, yet illiquid institutions, will generally be adequate to
meet the satisfaction standard of the Federal Reserve Act. Federal Reserve Discount Window,
Frequently Asked Questions, http://www.frbdiscountwindow.org/cfaq.cfm?hdrID=14&dtlID=89 (last
visited Nov. 16, 2009). However, although MBS and SMBS are nominally acceptable as discount
window collateral, it is hard to see how the toxicity of Bear’s MBS assets would satisfy Federal Bank
officials, especially when one considers the state of Bear’s financial health during the Fed rescue. See
Federal Reserve Discount Window General Information, http://www.frbdiscountwindow.org/
discountwindowbook.cfm?hdrID=14&dtlID=43#introduction (last visited Nov. 16, 2009) (noting that
“[t]he financial condition of an institution may be considered” when evaluating whether, and to what
668
[Vol. 42:647
Nonetheless, section 13(3) was used three times by the Fed in March 2008,
initially as a means of preventing Bear Stearns’s imminent default and
arranging the JPMorgan acquisition, and subsequently to create a new
lending facility specifically for the large institutions the Fed conducts daily
transactions with.139
Interestingly, it is this last use that demonstrates the Fed’s challenges
in responding to emergency situations of a systemic nature. For if the only
means by which the Fed can save institutions—by issuing direct loans—is
the same mechanism scorned by the market as a sign of weakness, troubled
institutions may hesitate to use the discount window during a financial
crisis.140 Thus, to counteract the stigma associated with the discount
window, the Fed created new lending mechanisms—including the Term
Auction Facility, the Term Securities Lending Facility, and the Primary
Dealer Credit Facility—in anticipation of the need for heightened
borrowing, which has since reached astronomical levels.141 Given this
deficiency, “Fed officials believe[] the [current economic] problems
require[] more than what a central bank was designed to do—provide
emergency loans to healthy institutions in tumultuous times.”142 And yet,
stretching the Fed’s loan capacity was not the only uncharacteristic action
taken by the Fed in the Bear Stearns case—an even more controversial
move was the manner in which the Fed brokered the JPMorgan takeover.
B. Sweetening the Deal143
As previously noted, when the Fed issued the $29 billion loan pursuant
to section 13(3) of the Federal Reserve Act to arrange for JPMorgan’s
acquisition of Bear Stearns, the funds were first filtered to JPMorgan then
extent, a Federal Reserve bank will issue extensions of credit through the discount window). Of
course, this issue adds to the controversial nature of the Bear Stearns bailout.
139
See Bernanke, Atlanta I, supra note 126 (detailing use of the Fed’s emergency lending
authority in each circumstance).
140
See LABONTE, supra note 101, at 4–5 (“Ironically, this means that although the Fed
encourages discount window borrowing so that banks can avoid liquidity problems, banks are hesitant
to turn to the Fed because of fears that doing so would spark a crisis of confidence.”).
141
See Cecchetti, supra note 41, at 19–20 (noting that as of May 2008, the Fed had nearly $180
billion worth of loans as compared to a total of $190 million only nine months earlier). There is some
indication that borrowing and lending from the Fed by both commercial and investment banks has
decreased early in 2009—this could be the result of investor pressures seeking bank independence
without government support. See Prabha Natarajan & Brian Blackstone, Mortgage-Bond Purchases
Start Strong—Fed’s Various Efforts to Bolster Markets Are Ballooning Its Balance Sheet, WALL ST. J.,
Jan. 9, 2009, at C3 (“Borrowing through the Fed’s discount window by commercial banks . . . fell
about $10 billion [in the first week of January, while] [l]ending through the Fed’s [PDCF] . . . fell [$3
billion] . . . .”).
142
Jon Hilsenrath et al., Crisis Mode: Paulson, Bernanke Strained for Consensus in Bailout,
WALL ST. J., Nov. 10, 2008, at A1 (emphasis added).
143
This section focuses primarily on the Fed’s use of emergency lending authority and other legal
tools to arrange the eventual takeover of Bear Stearns by JPMorgan. As such, the discussion focuses
on the legal authority involved in the merger, not other contexts.
2009]
669
144
used to secure Bear’s debts and take over Bear’s operations. Aside from
exercising emergency authority to distribute the loan in the first place, the
Fed also had to exempt JPMorgan from another provision of the Federal
Reserve Act, which is designed to prohibit the very type of transaction the
Bear Stearns deal involved.145 The provision in question is section 23A of
the Federal Reserve Act, which provides:
Restrictions on Transactions with Affiliates
1. A member bank and its subsidiaries may engage in a
covered transaction with an affiliate only if:
A. in the case of any affiliate, the aggregate amount
of covered transactions of the member bank and its
subsidiaries will not exceed 10 per centum of the
capital stock and surplus of the member bank; and
B. in the case of all affiliates, the aggregate amount
of covered transactions of the member bank and its
subsidiaries will not exceed 20 per centum of the
capital stock and surplus of the member bank.146
Section 23A is designed to limit the extent of covered transactions,
including loans, extensions of credit, or the purchase of securities, which
member banks,147 such as JPMorgan, enter into with affiliate institutions—
in this case a wholly-owned subsidiary formed solely for the purpose of
acquiring Bear Stearns.148 Additionally, section 23A “limit[s] the ability of
144
See supra Part II.D. JPMorgan actually formed a wholly-owned subsidiary “solely for the
purpose of consummating the merger.” JPMorgan, supra note 64, at 25.
145
See 12 U.S.C. § 371c(a)(1)A–B (2006); Letter from Robert deV. Frierson, Deputy Sec’y of the
Bd. of the Fed. Reserve, to Kathryn V. McCulloch, Senior V.P. & Assoc. Gen. Counsel of JPMorgan
Chase & Co. (July 1, 2008), available at http://www.federalreserve.gov/boarddocs/legalint/
federalreserveact/2008/20080701/20080701.pdf (authorizing exemptions from provisions of the
Federal Reserve to allow JPMorgan to finalize the acquisition of Bear Stearns); Letter from Robert de
V. Frierson, Deputy Sec’y of the Bd. of the Fed. Reserve, to Kathleen A. Juhase, Senior V.P. & Assoc.
Gen. Counsel of JPMorgan Chase & Co. (Aug. 20, 2008), available at http://www.federalreserve.gov/
BOARDDOCS/LegalInt/FederalReserveAct/2007/20070820c/20070820c.pdf
(approving
initial
exemptions from the Federal Reserve Act authorizing JPMorgan to finance Bear’s daily operations).
146
12 U.S.C. § 371c(a)(1)A–B. Near identical restrictions apply pursuant to the Federal Reserve
Board’s Regulation W, as codified in 12 C.F.R. § 223.11 (2009) and 12 C.F.R. § 223.12 (2009), which
limit the aggregate amounts of transactions between member banks and single or multiple affiliates.
147
The term “member bank” refers to depository firms which are members of the Federal Reserve
System. See Transactions Between Member Banks and Their Affiliates, 67 Fed. Reg. 76,560, 76,560
(Dec. 12, 2002).
148
Under section 23A, “covered transactions,” include “loan[s] or extension[s] of credit to . . .
affiliate[s] . . . [and the] purchase of assets . . . from [affiliates].” 12 U.S.C. § 371c(b)(7)(A)(C). An
“affiliate” includes “any company that controls the member bank and any other company that is
controlled by the company that controls the member bank.” Id. § 371c(b)(1)(A). When JPMorgan
acquired Bear Stearns, it formed a wholly-owned subsidiary “solely for the purpose of consummating
670
[Vol. 42:647
a member bank to transfer its Federal subsidy to affiliates,” precluding
non-member banks from accessing the Fed’s safety net.149 The intention of
the law “is to prevent problems at the affiliate from endangering the
[member] bank’s depositors.”150 Exemptions from these restrictions can
only be granted by the Federal Reserve Board when found to be in the
“public interest and consistent with the purposes of” section 23A.151
As section 23A limits the “aggregate amount of covered transactions”
that a member bank and an affiliate may engage in, the statute presented an
impediment for Fed officials seeking to arrange the JPMorgan purchase of
Bear in late March 2008. Specifically, the statute would expressly prohibit
JPMorgan (as a member bank) from taking over Bear, because the $29
billion “extension of credit” that the arrangement involved was a “covered
transaction” exceeding “20 per centum of the capital stock and surplus” of
JPMorgan.152 Thus, if the purchase of Bear was to be consummated as
planned, the transaction would be illegal and void under the Federal
Reserve Act.153 This dilemma necessitated the utilization of an authorized
exemption from the Federal Reserve Board to ensure that Bear’s
bankruptcy could be avoided in a legitimate manner.154
When JPMorgan first agreed to acquire Bear Stearns on March 16,
2008, the Fed granted a temporary (eighteen-month) 23A exemption so
that JPMorgan would be able to “finance the operations of Bear Stearns”
and guarantee its outstanding debts.155 This initial exemption allowed
JPMorgan to enter into transactions with Bear Stearns and its customers in
aggregate amounts of up to fifty percent of JPMorgan’s “capital stock and
surplus for the second quarter of 2008 (approximately $58 billion).”156
Subsequently, three months after the initial temporary exemption was
granted, on July 1, 2008, the Federal Reserve Board again suspended the
application of section 23A, allowing JPMorgan to complete the purchase
the merger,” which would trigger the application of section 23A of the Federal Reserve Act.
149
Transactions Between Member Banks and Their Affiliates, 67 Fed. Reg. at 76,560; see also
PATRICIA A. MCCOY, BANKING LAW MANUAL, FEDERAL REGULATION OF FINANCIAL HOLDING
COMPANIES § 6.05 (2d ed. 2002) (explaining the scope and purposes of sections 23A and 23B of the
Federal Reserve Act).
150
Brian Blackstone, Fed Agrees to Ease Some Rules for J.P. Morgan, WALL ST. J., Apr. 5, 2008,
at A2.
151
12 U.S.C. § 371c(f)(2). The purposes of section 23A have been declared by the Board as
being two-fold: “(i) to protect against a deposit institution suffering losses in transactions with affiliates
and (ii) to limit the ability of a deposit institution to transfer to its affiliates the subsidy arising from the
institution’s access to the Federal safety net.” Letter from Robert deV. Frierson to Kathryn McCulloch,
supra note 145, at 3 (citation omitted).
152
12 U.S.C. § 371c(a)(1)(B).
153
Id.
154
See Letter from Robert deV. Frierson to Kathleen Juhase, supra note 145, at 1–5 (granting and
explaining the exemption from section 23A and setting conditions on the authorized transaction).
155
Letter from Robert deV. Frierson to Kathryn McCulloch, supra note 145, at 6.
156
Id.
2009]
671
157
of Bear Stearns’s assets for “approximately $44 billion.”
In doing so,
the Fed reduced the original March 16 aggregate ceiling to $5 billion, and
declared the initial exemption void as of October 1, 2008.158
In both instances, the Fed justified its actions in granting 23A
exemptions based on past practices,159 and in allowing JPMorgan to
complete the purchase of Bear Stearns, the Fed argued that the terms of the
acquisition were substantially similar to those that would exist for
“comparable transactions with unaffiliated companies,” as otherwise
required by federal law.160 While these rationales may be valid, it remains
unsettling that the Fed suspended enforcement of section 23A to permit the
very type of transaction the law was enacted to prohibit.161 Most
importantly, concerns surround the potential losses JPMorgan (and in turn
its depositors) were exposed to during the Bear Stearns transactions, a
primary issue that the enactors of section 23A meant to protect against.162
“In effect, [these] 23A exemption[s] signaled the Federal Reserve’s
willingness to allow troubled investment banks to shift their bad assets to
insured commercial banks and thereby expose the Deposit Insurance Fund
and U.S. taxpayers to a heightened risk of loss.”163 Additionally, by
forwarding a federal subsidy through a member bank to Bear Stearns (a
non-member institution) the Fed endorsed a collateralized transaction
inconsistent with the underlying policy of “safe and sound banking
practices,”164 and specifically restricted by the Federal Reserve Act.165
The highly controversial nature of the Fed’s manipulation of its legal
authority in these circumstances has led to internal disputes among
157
Id. at 3.
Id. at 6.
159
See id. at 3 (“The Board routinely has approved exemptions . . . for one-time asset transfers
that are part of a corporate reorganization and that are structured to ensure the quality of the transferred
assets. The Board also has routinely approved exemptions . . . to facilitate the integration of recently
merged companies.” (internal citations omitted)).
160
See id. at 5 (“Section 23B [of the Federal Reserve Act] requires that the [JPMorgan
acquisition] be on terms that are substantially the same, or at least as favorable to [JPMorgan], as those
prevailing at the time for comparable transactions with unaffiliated companies.” (citation omitted)).
Restrictions On Transactions with Affiliates.
1. A member bank and its subsidiaries may engage in any of the transactions
described in paragraph (2) only—
A. on terms and under circumstances, including credit standards, that are
substantially the same, or at least as favorable to such bank or its
subsidiary, as those prevailing at the time for comparable transactions
with or involving other nonaffiliated companies . . . .
12 U.S.C. § 371c-1(a)(1)(A) (2006).
161
See Transaction Between Members Banks and Their Affiliates, 67 Fed. Reg. 76,560, 76,560–
62 (Dec. 12, 2002).
162
See id. at 76,560 (“Sections 23A and 23B of the Federal Reserve Act are important statutory
provisions designed to protect against a depository institution suffering losses in transactions with
affiliates.”).
163
MCCOY, supra note 149.
164
See 12 U.S.C. § 371c(a)(4).
165
See id. § 371c(c)(3).
158
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[Vol. 42:647
government officials as to the extent of the Central Bank’s power to
manage financial crises.166 Ideologically, the Fed’s conduct during the
Bear Stearns bailout signals a policy shift at the Central Bank that
embraces government intervention in preventing the failure of private
firms, a strategy unlike the traditional models which allowed for market
correction, limited government involvement, and ultimately private failures
and bankruptcies. In turn, by becoming more involved in preventing the
failure of private firms, the Fed has inherently increased the scope of its
marketplace oversight—a result accomplished indirectly through the
creation of new facilities and mechanisms implemented to protect ailing
institutions. These new facilities, coupled with the modification of existing
tools, have become the foundation for a new Central Bank that is
progressively intervening more deeply into the market, yet limited by legal
authority devised for the twentieth century.
C. The Offspring of Emergency
Early indications of the Fed’s expanding presence in the financial
markets can be traced back to the week leading up to the bailout of Bear
Stearns. Mindful of the stigma attached to discount window borrowing,
the Fed sought to stimulate lending in mid-March 2008 by relying on a
supplementary loan tool initially developed in December 2007, known as
the Term Auction Facility (“TAF”).167 Unlike the typical overnight
lending done through the discount window, the TAF provides loans with
longer maturity terms (such as twenty-eight days),168 and “[t]he TAF
allows the Fed to determine the amount of reserves it wishes to lend out,
based on market conditions.”169 TAF loans can be collateralized using the
same types of assets accepted at the discount window (including MBS),170
but the amounts offered through the TAF “have greatly exceeded discount
window lending.”171
For example, on March 7, 2008, the Fed announced it would increase
the amounts outstanding in the TAF to $100 billion, and declared that the
two auctions to be held in that month would be extended to $50 billion,
166
See Hilsenrath et al., supra note 142 (detailing frequent disagreements between former
Treasury Secretary Paulson and Fed Chairman Bernanke over proper scope of Fed authority to respond
to systemic threats to the economy).
167
See Charles T. Carlstrom & Sarah Wakefield, The Funds Rate, Liquidity, and the Term
Auction Facility, ECON. TRENDS, Dec. 2007, at 5, 6, available at http://www.clevelandfed.org/research/
trends/2007/1207/ET_dec07.pdf (“One of the major changes for the Federal Reserve [in December
2007] . . . was the institution of a ‘term auction facility’ (TAF) to supplement regular discount window
borrowing.”).
168
169
Id.
170
See id. (“Like discount window lending, TAF loans must be fully collateralized with the same
qualifying collateral [accepted at the discount window].”).
171
Id.
2009]
673
$20 billion more than previously offered in February 2008.172
Additionally, the Fed assumes the risk associated with a decline in the
value of the collateral posted by private institutions in return for TAF
loans, and questions have arisen as to whether this once temporary
program will become permanent following reevaluation, albeit with
reduced auction amounts.173 Because the funds distributed by the Fed
through the TAF reflect market needs and anticipated demand for
assistance, the TAF is a more controlled platform for lending as compared
to the traditional discount window.174 In the fourth quarter of 2008, TAF
lending and term limits had been extended to as much as $150 billion and
eighty-five days respectively175—figures representative of the popularity
(or necessity) of the TAF during the current financial crisis.
Aside from the growing role of the TAF, “[o]n March 11, 2008, the
Fed set up a more expansive securities lending program for the primary
dealers called the Term Securities Lending Facility” (the “TSLF”).176 The
TSLF allows the Fed to promote financial market operations by providing
easy access to liquidity for those institutions the Fed regularly conducts
transactions with and whose financial size and strength are directly related
to the health of the financial system—the primary dealers.177 Lending
through the TSLF can be in amounts of up to $200 billion in Treasury
securities, for terms of twenty-eight days, and collateralized through a wide
range of assets, including illiquid MBS.178 Initially, MBS collateral had to
be AAA-rated; however, the Fed eventually broadened the types of eligible
collateral to include “all investment-grade debt securities,” and changed
TSLF auctions from biweekly to weekly in September 2008.179 The TSLF
allows the largest financial institutions to regularly swap their
unmarketable assets for easily marketable Treasury securities, which “is
172
See Press Release, Fed. Reserve (Mar. 7, 2008), available at http://www.federalreserve.gov/
newsevents/press/monetary/20080307a.htm.
173
See LABONTE, supra note 101, at 5.
174
See id. (“Discount window lending is initiated at the behest of the requesting institution—the
Fed has no control over how many requests for loans it receives.”).
175
Press Release, Fed. Reserve (Oct. 6, 2008), available at http://www.federalreserve.gov/
newsevents/press/monetary/20081006b.htm.
176
177
See id. at 6 (explaining TSLF operations and providing technical definition of primary
dealers); Press Release, Fed. Reserve (Sept. 14, 2008), available at http://federalreserve.gov/
newsevents/press/monetary/20080914a.htm (explaining how the TSLF stimulates flow of liquidity
between largest financial institutions). For a discussion of the role of primary dealers, see Marco
Arnone & George Iden, Primary Dealers in Government Securities: Policy Issues and Selected
Countries’ Experience 3–10 (IMF Working Paper No. 03/45, 2003), available at
http://www.imf.org/external/pubs/ft/wp/2003/wp0345.pdf.
178
See Franklin Allen & Elena Carletti, The Role of Liquidity in Financial Crisis 6 (Sept. 4, 2008)
(unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268367.
Treasury securities include Treasury notes, bonds, and bills, backed by the Federal Government and, as
such, are very safe investments.
U.S. Secs. & Exch. Comm’n, Treasury Securities,
http://www.sec.gov/answers/treasuries.htm (last visited Nov. 16, 2009).
179
Press Release, Sept. 14, 2008, supra note 177.
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[Vol. 42:647
intended to promote liquidity in the financing markets for Treasury and
other collateral” and improve the overall performance of financial
markets.180
Finally, following JPMorgan’s announced acquisition of Bear Stearns
on March 16, 2008, the Fed launched yet another new lending tool
designated the Primary Dealer Credit Facility (“PDCF”), which was
designed to improve access to discount window-type loans to primary
dealers.181 The PDCF was created pursuant to the emergency lending
provisions of section 13(3) of the Federal Reserve Act, and “provides
primary dealers with a liquidity backstop similar to the discount window
for deposit institutions in generally sound financial condition.”182 Because
many primary dealers, such as Bear Stearns, could not previously pledge
their collateral for direct discount window loans from the Fed, the PDCF
seems to have been the result of Fed frustration in attempting to work
within its legal authority in loaning funds to non-member institutions. As
with the TSLF, the PDCF initially required investment-grade securities as
collateral for overnight or short-term loans; however, the Fed has
subsequently broadened the acceptable PDCF collateral to include assets
exchanged in repo markets.183 From its inception, the PDCF seems to have
contributed to growing lending confidence among primary dealers and
their counterparties, yet the very fact that the PDCF has been extended into
2009 suggests that market conditions remain abnormal.184
The Fed’s use of the TAF, TSLF, PDCF, and other facilities185 raises
180
LABONTE, supra note 101, at 6 (citation omitted).
See Fed. Reserve Bank of N.Y., Primary Dealer Credit Facility, http://www.newyorkfed.org/
markets/pdcf.html (last visited Nov. 16, 2009) (“The . . . (PDCF) is an overnight loan facility that will
provide funding to primary dealers in exchange for a specified range of eligible collateral that is
intended to foster the functioning of financial markets more generally.”).
182
Bernanke, Atlanta I, supra note 126.
183
See Press Release, Sept. 14, 2008, supra note 177 (“The collateral eligible to be pledged at the
Primary Dealer Credit Facility (PDCF) has been broadened to closely match the types of collateral that
can be pledged in the tri-party repo systems of the two major clearing banks.”).
184
See Bernanke, Atlanta I, supra note 126 (discussing improvement in confidence among
primary dealers and their counterparties and noting that despite improvement in confidence, financial
markets “are still far from normal”); Press Release, Fed. Reserve (July 30, 2008), available at
http://www.federalreserve.gov/newsevents/press/monetary/20080730a.htm (announcing the Fed’s
extension of the PDCF until January 30, 2009).
185
The Fed has developed numerous facilities, other than the ones previously described, in an
ongoing effort to stimulate liquidity transfers in financial markets and promote confidence between
counterparties. For example, in October 2008, the Fed created the Commercial Paper Funding Facility
(“CPFF”), which provides a “liquidity backstop” to domestic providers of commercial paper by
allowing the Fed to purchase “three-month unsecured and asset-backed commercial paper directly from
eligible issuers.” Press Release, Fed. Reserve (Oct. 7, 2008), available at http://federalreserve.gov/
newsevents/press/monetary/20081007c.htm. Likewise, in late November 2008, the Fed instituted the
Term Asset-Backed Securities Loan Facility (“TALF”), which allows the New York Fed to “lend up to
$200 billion on a non-recourse basis to holders of certain AAA-rated ABS backed by newly and
recently originated consumer and small business loans.” Press Release, Fed. Reserve (Nov. 25, 2008),
available at http://www.federalreserve.gov/monetarypolicy/20081125a.htm. The TALF is designed to
181
2009]
675
important questions about the expanding intervention of the federal
government in our free market economy, as well as the threat to economic
independence and innovation that the Fed’s growing presence poses.
Similarly, skepticism as to the tools utilized by the Fed to combat ailing
market operations emphasizes the concern that the Fed’s policy responses
may indirectly promote moral hazard.186 These issues have incited a
consensus that regulatory reform is overdue and will be a major
undertaking of the Obama administration and the 111th Congress.187
IV. INADEQUACIES IMPAIRING INTERVENTION
A. The Call for Regulatory Reform188
Four months after Bear Stearns was saved from bankruptcy, Fed
Chairman Ben Bernanke testified before the House Committee on
Financial Services to “discuss financial regulation and financial
stability.”189 Using Bear Stearns as an example, Bernanke suggested that
the current regulatory framework for the financial system was inadequately
structured to respond to and remedy problems posed by contemporary
investment banks and products.190 In particular, Bernanke explained that
limited oversight of investment banking practices and sophisticated
investment vehicles had contributed to the creation of a financial system
more advanced than the laws that governed it.191 As in Bear Stearns’s
case, private institutions (and the market as a whole) had evolved to the
extent that a single firm’s failure could bring the entire system to its
make it “easier for consumers to borrow money,” thus easing lending markets and stimulating growth.
Deborah Solomon, New Facility Targets Consumer Lending, WALL ST. J., Nov. 25, 2008, at C1.
186
See Ben S. Bernanke, Chairman of the Bd. of the Fed. Reserve, Speech at the Greater Austin
Chamber of Commerce: Federal Reserve Policies in the Financial Crisis (Dec. 1, 2008), available at
http://www.federalreserve.gov/newsevents/speech/bernanke20081201a.htm [hereinafter Bernanke,
Austin] (“[I]ntervening to prevent the failure of a financial firm is counterproductive, because it leads
to erosion of market discipline and creates moral hazard.”).
187
See id. (“In the longer term, the development of a statutory framework for resolving
systemically critical nonbank financial institutions in ways that do not destabilize the financial system
as a whole must be another key priority.”).
188
This section discusses the impetus for reform of the regulatory structure of the financial system
within the narrow realm of the investment banking industry and the expanding role of the Federal
Reserve as a central administrator. Therefore, consideration of broader regulatory reform that may be
appropriate in other contexts (such as the mortgage industry) is beyond the scope of this Note.
189
Ben S. Bernanke, Chairman of the Bd. of the Fed. Reserve, Testimony Before the House
Comm. on Fin. Servs. (July 10, 2008), available at http://www.federalreserve.gov/newsevents/
testimony/bernanke20080710a.htm [hereinafter Bernanke, Fin. Servs.].
190
See id. (“[I]n light of the Bear Stearns episode, Congress may wish to consider whether new
tools are needed for ensuring an orderly liquidation of a systemically important securities firm that is
on the verge of bankruptcy, together with a more formal process for deciding when to use those
tools.”).
191
See id. (“Congress should consider granting the Federal Reserve explicit oversight authority
for systemically important payment and settlement systems.”).
676
192
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193
knees.
Known as “systemic risk,” the occurrence of this phenomenon
necessarily prompts the intervention of the federal government.194
However, the nature of that intervention has come under intense scrutiny in
the wake of Bear Stearns.195 Specifically, the scope of the Fed’s authority
as lender of last resort during systemic crisis remains obscure in the
context of nonbank institutions that traditionally were not subject to Fed
oversight.196 “The decision to treat Bear Stearns as if it were a commercial
bank appears to have marked a permanent shift in the governance of
financial services firms.”197 Likewise, as Professor Steven Schwarcz of
Duke University School of Law has noted, de facto bailouts of
systemically important institutions facing bankruptcy focus merely on
“symptoms of the disease . . . not on the disease’s underlying cause.”198
Thus, the Fed’s capacity to respond to financial distress appears
constrained by both the lack of a robust supervisory mandate and a limited
number of tools available to protect the nation’s economy.199 For example,
although the Fed can issue emergency loans to nonbank financial
institutions, “such loans must be backed by collateral sufficient to provide
reasonable assurance that they will be repaid; if such collateral is not
available, the Fed cannot lend.”200 And while the Fed “serves as the
umbrella supervisor of all bank holding companies,” nonbank institutions
are generally supervised by other agencies that lack the resources and legal
authority of the Fed.201
Discrepancies between the Central Bank’s status as “umbrella
192
See id. (“[T]he stability of the broader financial system requires key payment and settlement
systems to operate smoothly under stress to effectively manage counterparty risk.”).
193
See Steven L. Schwarcz, Systemic Risk, 97 GEO. L.J. 193, 198 (2008) (“A common factor in
the various definitions of systemic risk is that a trigger event, such as an economic shock or
institutional failure, causes a chain of bad economic consequences—sometimes referred to as a domino
effect.”); see also Olivier De Bandt & Philipp Hartmann, Systemic Risk: A Survey 10–11 (Eur. Cent.
Bank, Working Paper No. 35, 2000), available at http://www.ecb.int/pub/pdf/scpwps/ecbwp035.pdf.
Systemic risk as a focus of regulation is discussed infra Part V.A.
194
See Mishkin, supra note 130 (explaining the necessity of the central bank as lender of last
resort during systemic financial crises).
195
See Bernanke, Kansas City, supra note 11 (“[I]n the rare circumstances in which the
impending or actual failure of an institution imposes substantial systemic risks, the standard procedures
for resolving institutions may be inadequate.”).
196
See Bernanke, Fin. Servs., supra note 189 (“[U]nder current arrangements, the SEC’s
oversight of the holding companies of the major investment banks is based on a voluntary agreement
between the SEC and those firms.”).
197
David A. Skeel, Jr., Governance in the Ruins, 122 HARV. L. REV. 696, 740 (2008) (reviewing
Curtis J. Milhaupt & Katharina Pistor, LAW AND CAPITALISM: WHAT CORPORATE CRISES REVEAL
ABOUT LEGAL SYSTEMS AND ECONOMIC DEVELOPMENT AROUND THE WORLD (2008)).
198
Steven L. Schwarcz, Markets, Systemic Risk, and the Subprime Mortgage Crisis, 61 SMU L.
REV. 209, 214 (2008).
199
See, e.g., Bernanke, FDIC, supra note 9.
200
Bernanke, Austin, supra note 186.
201
Ben S. Bernanke, Chairman, Fed. Reserve, Speech at the Allied Social Science Association
Annual Meeting (Jan. 5, 2007), available at http://www.federalreserve.gov/newsevents/speech/
bernanke20070105a.htm.
2009]
677
supervisor” and its restricted oversight of investment and securities firms is
largely the result of the Gramm-Leach-Bliley Act of 1999 (the
“GLBA”).202 In passing the GLBA, “Congress was cognizant of the fact
that functional regulation for securities [subsidiaries of depository
institutions], when combined with the traditional oversight powers of the
[Fed], had the potential to create added regulatory burdens for bank and
financial holding companies.”203 Therefore, the GLBA directed the Fed
“to limit the focus and scope of [its] examinations” into nonbank
institutions (i.e., investment banks) subject to alternative regulatory
schemes, and “forego examinations [of these firms] in lieu of reviewing
examination reports by the [SEC].”204 Unfortunately, this division of
responsibility severely curtails the Fed’s ability to anticipate systemic risks
posed by investment banks and financial institutions, especially when the
SEC does not live up to its obligations. As Professor Patricia McCoy of
the University of Connecticut School of Law explains, “[the GLBA]
essentially envisions systemic risk as risk that is confined to one sector (for
example, the banking sector as opposed to the securities sector). As
financial services become more intricate and interdependent, however, that
assumption [along with the efficacy of patchwork regulation] must be
questioned.”205 Indeed, Bear’s primary regulator, the SEC, “played almost
no role” in Bear’s rescue, suggesting that the Fed’s principal regulation of
commercial banks may be obsolete and too narrow-minded given today’s
reality.206
The regulatory deficiencies that seem to impair the Fed’s ability to
effectively respond to systemic threats are even more pronounced
considering the fact that “the Fed is the only agency that has the power to
serve as a liquidity provider of last resort, a power that has proved critical
in financial crises throughout history.”207 Because the Fed has come to
assume the risk associated with loans to previously unregulated
institutions, officials contend that increased supervision of such firms by
the Fed is only reasonable and in keeping with the Fed’s obligation to
202
Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801–6809, 6821–6827 (1999).
PATRICIA A. MCCOY, BANKING LAW MANUAL, BANK AND THRIFT SUPERVISION
§ 2.04(1)(a)(ii) (2009).
204
Id.
205
Id.
206
See Skeel, supra note 197, at 735–36; see also Kristen French, Wall Street Turf Wars: SEC
Versus Fed, July 24, 2008, http://registeredrep.com/regulatory/sec_versus_fed_0724/index.html
(“There has been some speculation that the Federal Reserve would begin to regulate investment banks
much in the same way that it regulates commercial banks today, requiring them to compute capital
requirements and maintain liquidity levels on a consolidated basis, and discouraging certain kinds of
financial risk-taking.”).
207
Bernanke, FDIC, supra note 9.
203
678
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208
promote overall financial stability.
Of course, “[w]ith the Fed bearing
apex responsibility for U.S. financial stability, it is reasonable to ask
whether it enjoys sufficiently broad oversight authorities.”209 Given its
“macroeconomic objectives” of “maximum sustainable employment and
price stability,”210 Fed leaders have stressed the importance of enhanced
oversight authority as a necessity for accomplishing its directives.211
Ideally, providing the Fed with greater supervisory powers would limit the
need to issue emergency loans in the future, as the Central Bank could use
policy initiatives to deter investment operations that lead to systemic risk.
In this way, the financial system as a whole, and the American taxpayer,
would be better protected from future instances of market disruption
caused by irresponsible trade practices. If the Fed were better able to
anticipate failures among individual firms or markets, it would be less
likely that gaps in the regulatory structure would afflict the broader
economy.212
These issues have led some officials to argue that a unified system of
financial regulation under the direction of the Fed would make the most
sense in light of the oversight failures of the past year.213 In fact, the
heterogeneous makeup of the existing regulatory system has been
criticized as unduly redundant, inefficient, and archaic, and a liability to
the security of the future financial industry.214 Even before the onset of the
current crisis, empirical evidence suggested that those countries that had a
208
See Irwin, supra note 124 (“[Former] Treasury Secretary Henry M. Paulson Jr. said that if
investment banks are given permanent access to the Fed’s emergency funds, they should have the same
kind of supervision that the Fed requires for conventional banks.”).
209
Vir Bhatia, supra note 17, at 17 (emphasis omitted).
210
Kevin Warsh, Governor of the Bd. of the Fed. Reserve, Remarks at the New York State
Economics Association’s 60th Annual Conference: Financial Stability and the Federal Reserve (Oct. 5,
2007), available at http://www.federalreserve.gov/newsevents/speech/warsh20071005a.htm.
211
See Bernanke, FDIC, supra note 9 (“[H]olding the Fed more formally accountable for
promoting financial stability makes sense only if the institution’s powers are consistent with its
responsibilities.”); Donald L. Kohn, Vice Chairman, Fed. Reserve, Speech at the Exchequer Club
Luncheon (Feb. 21, 2007), available at http://www.federalreserve.gov/newsevents/speech/
kohn20070221a.htm (“The Federal Reserve’s activities as a bank supervisor provide us with important
and sometimes critical information . . . . Thus, I want to take this opportunity to emphasize and
reinforce the case for central bank involvement in bank supervision.”).
212
See Browne, supra note 17, at 385–87 (discussing how gaps in the regulatory structure of the
financial industry impair the nation’s global competitiveness).
213
See Scannell, supra note 13 (“‘What makes more sense [than the current approach] is to have a
unified system of financial-services regulation.’” (quoting Harvey Pitt, former SEC Chairman)).
214
See Norman D. Slonaker, The Department of the Treasury Blueprint for a Modernized
Financial Structure, 1708 PRAC. L. INST. 955, 958 (2008).
The current regulatory system of separate agencies across functional lines (banking,
insurance, securities and futures) has resulted in:
i.
No single regulator with all the information and authority to monitor
systemic risk and coordinate action throughout the financial system
ii. Jurisdictional disputes among the agencies
iii. Regulatory redundancies
iv. Inefficiency and loss of U.S. competitive advantage
Id.
2009]
679
unified supervisory and monetary program enjoyed fewer bank failures in
the 1980s and 1990s than countries that separated such responsibilities
among different agencies.215 Together with other statutory reforms
designed to streamline government oversight of nonbank institutions and
complex securities,216 proponents of enhanced Fed supervision within the
financial services industry argue that the Central Bank is the most
economic platform from which to shape the future regulatory structure.217
Currently, Fed officials are attempting to clarify the Central Bank’s
existing supervisory protocol in an effort to increase awareness as to the
Fed’s oversight abilities.218 It remains to be seen whether the results of this
internal review will reinforce arguments for the revision of financial
regulation. Needless to say, as the market continues to adjust to the barren
landscape of the post-housing bubble, commentators have observed that
the lack of a clear regulatory structure is hindering economic recovery.219
Still, others doubt whether increased regulation is the answer to recurring
economic crises, and even public officials have warned that rushing to
regulation is imprudent.220
B. Private Skepticism
Amidst the seemingly ubiquitous appeals for tougher regulation,
215
See Joseph G. Haubrich, Combining Bank Supervision and Monetary Policy, FED. RESERVE
BANK OF CLEVELAND, Nov. 1996, http://www.clevelandfed.org/Research/Commentary/1996/1196.
htm.
216
For example, the Treasury Department has suggested that the SEC and CFTC merge to afford
consolidated oversight and regulation of the securities and futures markets. See DEP’T OF THE
TREASURY, BLUEPRINT FOR A MODERNIZED FINANCIAL REGULATORY STRUCTURE 11 (2008),
available at http://www.treas.gov/press/releases/reports/Blueprint.pdf.
Additionally, Chairman
Bernanke has suggested that a new regulatory regime be developed specifically for nonbank
institutions. See Bernanke, Kansas City, supra note 11 (“A statutory resolution regime for nonbanks,
besides reducing uncertainty, would also limit moral hazard by allowing the government to resolve
failing firms in a way that is orderly but also wipes out equity holders and haircuts some creditors,
analogous to what happens when a commercial bank fails.”).
217
See DEP’T OF THE TREASURY, supra note 216, at 146–56 (detailing how the Fed’s current
responsibilities and authority complement the expanded protocol suggested by the Treasury
Department).
218
See David L. Kohn, Vice Chairman, Fed. Reserve, Testimony Before the U.S. Senate Comm.
on Banking, Hous. & Urban Affairs (June 5, 2008), available at http://federalreserve.gov/newsevents/
testimony/kohn20080605a.htm (“The Federal Reserve is nearing completion of enhancements to its
supervisory guidance to clarify [its] role as consolidated supervisor of bank and financial holding
companies . . . . The updated guidance is primarily intended to provide greater clarification to [its] own
examination staff.”).
219
See Tyler Cowen, Was an Old Bailout a Bad Precedent?, N.Y. TIMES, Dec. 28, 2008, at BU5
(“Regulatory uncertainty is stifling the ability of financial markets to engineer at least a partial
recovery.”).
220
See Ben S. Bernanke, Chairman, Fed. Reserve, Speech at New York University Law School:
Financial Regulation and the Invisible Hand (Apr. 11, 2007), available at http://www.federalreserve.
gov/newsevents/speech/bernanke20070411a.htm (“[T]he benefits of regulation come with direct and
indirect costs. Direct costs include those arising from compliance with a thicket of complicated
rules . . . . Indirect costs include reductions in innovation or competition that can result from overly
restrictive regulations.”).
680
[Vol. 42:647
skeptics have voiced their dissent in an attempt to explain why this most
recent economic catastrophe should cause lawmakers to pause before
instituting a mass overhaul of the existing regulatory structure.
Critics of such a legislative renovation, both in the United States and
abroad, argue that more regulation may simply be ineffective in preventing
future crises given the incredibly complex nature of today’s financial
markets.221 For example, Professor Tyler Cowen of George Mason
University has explained that “regulators will never be in a position to
accurately evaluate . . . many of the most important market
transactions.”222 Because of the intricate web of international finance,
which involves highly sophisticated players and trillions of dollars,
government regulators lack the resources to use reform as a means to
prevent disaster.223 Instead, “the real issue is setting strong regulatory
priorities to prevent outright fraud and to encourage market transparency,
given that government scrutiny will never be universal or even close to
it.”224 Similarly, using government to restrain un-regulated financial
sectors after they have wreaked havoc on the system may not be the best
guide for controlling future threats.225 As some commentators have
pointed out, the debate over the future of regulation has arisen in the smog
of disaster, and a complete reconsideration of traditional models of reform
may be necessary.226
Additionally, the possibility that reform will create a slippery slope of
government abuses and outright favoritism has made headlines in the
United Kingdom, where revised banking policies have been criticized as
allowing the public sector to “cherry-pick assets and transfer them to a
private sector buyer.”227 Interestingly, the United Kingdom delegates the
responsibility of bank and financial services supervision to a single agency,
the Financial Services Authority (“FSA”).228 As a central hub of financial
oversight, the FSA draws on expansive regulatory powers to influence and
observe market operations, and functions independently of the Bank of
221
See Cowen, supra note 2, at BU7 (“[I]t’s not obvious that the less regulated financial sector
performed any worse than the highly regulated housing and bank mortgage lending sectors, including,
of course, the government-sponsored mortgaged agencies.”).
222
Id.
223
See id.
224
Id.
225
See id.
226
See Adrian Blundell-Wignall & Paul Atkinson, The Sub-Prime Crisis: Causal Distortions and
Regulatory Reform, in LESSONS FROM THE FINANCIAL TURMOIL OF 2007 AND 2008 55, 66 (Paul
Bloxham & Christopher Kent eds., 2008), available at http://www.rba.gov.au/PublicationsAnd
Research/Conferences/2008/Blundell-Wignall_Atkinson.pdf (“There needs to be some new thinking
about reform of the regulatory and policy-making paradigms for the longer run.”).
227
Philip Aldrick, Banking Reforms Will Jeopardise Financial Industry, Say Lawyers, DAILY
TELEGRAPH (London), Sept. 4, 2008, at 3 (quoting Bob Penn, Regulatory Partner, Allen & Overy).
228
See About the FSA, http://www.fsa.gov.uk/Pages/About/What/index.shtml (last visited Nov.
16, 2009) (providing links to details on the scope, objectives, and structure of the FSA).
2009]
681
229
England.
This separation of central banking and banking supervision is
emphasized by critics who reject the expanding role of the Fed as a
financial administrator over nonbanks.230 Those who endorse the United
Kingdom’s regulatory approach contend that increased independence of
financial regulators allows flexibility in governance, which in turn
promotes efficient use of resources and generally more effective
policies.231 By adopting a “principles-based” methodology of supervision
that encourages voluntary compliance by private institutions, the FSA has
been commended for promoting market discipline.232 Furthermore, by
removing supervisory responsibilities from the purview of a central bank,
and thereby reducing its oversight authority, some scholars have argued
that the risk that a conflict of interest would impede the Fed’s ability to
impose monetary restraint out of concern for banks is largely reduced if not
eliminated, by the FSA paradigm.233 With countries such as Korea, Japan,
India, and South Africa moving toward systems that mirror those of the
United Kingdom,234 questions will soon arise as to how the United States
should proceed and what the future role of the Fed should be.
Finally, even public officials have cautioned that added regulation
cannot threaten the ability of market participants to develop innovative
business models or investment products.235 Although the existing
framework does not seem to promote American competitiveness in key
global markets,236 any new regulatory system for the financial industry
should not be “counterproductive” by encouraging parties to conduct their
229
Id.
See C.A.E. Goodhart, The Organisational Structure of Banking Supervision 8–23 (Fin.
Stability Inst. Occasional Papers No. 1, 2000), available at http://www.bis.org/fsi/fsipapers01.pdf
(addressing arguments that have been made for the continued separation between central banks and
banking supervision).
231
See Harvey L. Pitt, Bringing Financial Services Regulation into the Twenty-First Century, 25
YALE J. ON REG. 315, 321–23 (discussing the benefits of the FSA model of supervision as contrasted
with that of the SEC); see also Ben S. Bernanke, Chairman, Fed. Reserve, Speech at the Federal
Reserve Bank of Atlanta’s Financial Markets Conference: Regulation and Financial Innovation (May
15, 2007), available at http://www.federalreserve.gov/newsevents/speech/bernanke20070515a.htm
[hereinafter Bernanke, Atlanta II] (describing the FSA’s “[p]rinciples-based” supervisory approach as
concentrating government resources and attention to those “firms, markets, or instruments in proportion
to the perceived risks to the FSA’s regulatory objectives”).
232
See Pitt, supra note 231, at 321–23 (describing how the FSA’s approach is more efficient than
traditional models employed by American organizations); John H. Walsh, Institution-Based Financial
Regulation: A Third Paradigm, 49 HARV. INT’L L.J. 381, 383–87 (2008) (discussing the mechanics of
“principles-based” regulation as adopted by the FSA and some American organizations, and the praise
and criticism “principles-based” regulation has garnered).
233
See Goodhart, supra note 230, at 20–23 (discussing how separating supervision from central
banking works to reduce the occurrence of conflicts of interest with regard to the creation of monetary
policy).
234
See id. at 6–7.
235
See Kohn, supra note 211 (advising that regulations which attempt to anticipate and control all
possible systemic threats may unduly restrict market growth).
236
See Browne, supra note 17, at 393–410 (discussing how U.S. firms are losing influence in
various markets as a result of current regulatory deficiencies).
230
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237
business overseas.
With the major U.S. investment banks now all
subsidiaries of bank holding companies, some argue that the Fed no longer
needs enhanced supervisory powers over nonbanks to successfully monitor
market threats. However, as discussed in Part V, existing oversight
restrictions continue to limit the Fed’s capacity to adopt a prophylactic risk
management policy.238 Obviously, striking the right balance between
laissez-faire and new financial regulation is a complicated issue that
remains a key focus of those at the Fed and on Capitol Hill. Therefore, the
remainder of this Note draws on existing scholarly work devoted to the
challenge of improving banking and financial system oversight with the
goal of increasing dialogue as to the proper role of the Fed in such future
regulatory schemes.
V. GOING FORWARD: THE FUTURE OF INVESTMENT BANK REGULATION
A. An Attempt at Reconciliation
It goes without saying that the goal of regulators in implementing any
new framework of investment banking and financial system oversight
should be to focus on the most important threats to economic stability
facing our country. While some may argue that those threats range from
unbridled greed to government incompetence, the key concern of
lawmakers should be the contemporary nature of systemic risk.239 As the
current crisis illustrates, systemic risk has developed into a cross-sector
cancer, capable of emerging within the securities realm and spreading to
the banking and credit sectors. This development stresses the jurisdictional
boundaries of federal agencies, reducing the capacity of the Fed or similar
regulators to respond to systemic risks in accordance with existing legal
authority.240 Because “[f]ederal banking agencies are specifically barred
from examining registered investment company subsidiaries,” the Fed
must rely on inconsistent piecemeal examinations of these firms, which
themselves are subject to “stringent restrictions.”241 For example, as the
237
See Neikirk et al., supra note 119, at C1 (“Those who oppose too many new federal
regulations on Wall Street investment banking firms fear such a move could be highly
counterproductive and drive more financial transactions overseas to London, Hong Kong, or other
spots.”).
238
See MCCOY, supra note 203, § 12.04(1) (describing how the existing scheme of banking
regulation is duplicative and inefficient).
239
See Robert W. Hahn & Peter Passell, The Rush to Reregulate, AEI ON THE ISSUES, Aug. 20,
2008, http://www.aei.org/issue/28495 (“The most easily justifiable rationale for [government]
intervention is the potential for damage to those not directly involved—for example, people who lose
their savings in bank runs when credit markets freeze.”).
240
MCCOY, supra note 203, § 12.04(1)(a)(ii); see also Schwarcz, supra note 193, at 198–204
(discussing how systemic risks faced by individual institutions and markets should not be considered in
isolation when defining systemic risk as a focus of regulation).
241
MCCOY, supra note 203, § 12.04(1)(a)(ii).
2009]
683
GLBA mandates, the Fed may only examine “functionally regulated
subsidiaries” (including investment banks) in three instances: (1) where the
Fed has “reasonable cause to believe” the activities of the subsidiary “pose
a material risk to an affiliated depository institution[;]” (2) where the Fed
“reasonably determines” an examination is needed to assess the propriety
of the internal monitoring and control systems of the subsidiary; and (3)
where the Fed has “reasonable cause to believe” a subsidiary is in violation
of federal law within its jurisdiction.242 These provisions effectively
preclude the Fed from undertaking routine examinations of investment
banks, thereby increasing the potential for risks to go unnoticed.
Additionally, the GLBA specifically prohibits federal banking agencies
from inspecting or examining any “registered investment company that is
not a bank holding company or a savings and loan company.”243 And,
although “the FDIC has full authority to examine any affiliate of a
depository institution[,]” it can only do so when “necessary to disclose
fully the relationship between the two companies and the effect of that
relationship on the depository institution’s condition.”244
Loopholes such as these inhibit the effective management of risks
within the investment banking and financial sectors, impairing the Fed’s
ability to protect the commercial banking industry. Given the potential for
systemic threats to devastate various markets and the real economy,
enhancing the Fed’s capabilities at anticipating and reacting to systemic
risks within the financial and investment contexts is a necessity. This
argument is supported by the fact that major domestic investment banks
have now become subsidiaries of bank holding companies, thereby
augmenting the importance of a consistent and unified structure of
supervision.245 With the protection of individual depositors now directly
intertwined with the stability of investment companies previously
operating in relative isolation, systemic risk is no longer an abstract
anomaly confined to the plush offices of Wall Street executives and
investors—it is now a concern of all American taxpayers.
Therefore, as the primary guardian of banking stability, the Fed ought
to be given greater powers to supervise investment banks and other
financial companies whose fate can now affect the lives of millions of
Americans. As Professor McCoy suggests, “where an investment
company is located in a subsidiary of a bank or thrift, consolidating safety
and soundness examinations in the deposit institution’s primary federal
242
Id.
Gramm-Leach-Bliley Act, 12 U.S.C. § 1820a(a) (2006).
244
MCCOY, supra note 203, § 12.04(1)(a)(ii) (emphasis added) (internal citations omitted).
245
See Bernanke, Atlanta II, supra note 231 (“Rather than addressing specific institutions or
instruments in isolation, regulators should begin by identifying their objectives and then address the
implications of the broad range of financial innovations for those objectives. By returning to the
basics, we can increase the coherence, consistency, and effectives of the regulatory framework.”).
243
684
[Vol. 42:647
banking supervisor would make for better informed examinations.”246 Of
course, this is not to say that systemic risk should become a scapegoat for
irresponsible reform measures which do more harm to the country’s
economic prowess than protect it. Because future systemic risks may be
considered unavoidable occurrences of free market ideology and even
human behavior, regulation alone will be insufficient in preventing all
future occurrences of systemic threats.247 Instead, a “private initiative that
will complement official oversight in encouraging [responsible] industrywide practices” is an essential feature of any future regulatory agenda.248
Nonetheless, “market discipline often needs to be buttressed by
government oversight,”249 and the Fed should be granted greater powers
over investment banks with respect to reporting, regulation, examinations,
capital requirements, and enforcement.
1. Reporting to the Fed
Imposing tougher reporting and disclosure requirements on investment
banks and their managers has the additional benefit of improving a firm’s
internal culture of risk appreciation and understanding. In other words, if
investment banks are required to disclose quarterly or semi-annual reviews
of balance-sheet status or investment outlooks, irresponsible risk taking
will become less of a clandestine affliction.250 Utilizing existing reporting
models for commercial banks would prove useful in this regard,251 as
would repealing provisions of the GLBA which inhibit the Fed’s
examination of “functionally regulated subsidiaries.”252 No longer should
the Fed be responsible for supervising the risks posed by investment banks
“with one hand tied behind its back,” and investment banks and their
managers should be held responsible for filing accurate “quarterly reports
of condition” directly with the Federal Reserve, instead of the SEC, CFTC,
246
MCCOY, supra note 203, § 12.04(1)(a)(ii).
See Alan L. Beller, Containing Systemic Risk: The Road to Reform—The Report of the
CRMPG III, Aug. 6, 2008—Excerpts, 1704 PRAC. L. INST. 19, 39 (2008) (“The fact that financial
excess fundamentally grows out of human behavior is a sobering reality . . . . However, official
oversight is not a substitute for the effective management of financial institutions, which is, and should
remain, a private-sector function.”).
248
Id.
249
Bernanke, Atlanta II, supra note 231.
250
See id. (discussing how effective disclosures can limit the occurrence of reckless trade
practices); see also MCCOY, supra note 203, § 12.03(2) (“Periodic reports of condition by individual
institutions to regulators are the lifeblood of banking supervision and an important diagnostic tool for
monitoring the financial health of banks and thrifts.”).
251
See MCCOY, supra note 203, § 12.03(2)–(3) (describing the types of reports and data that
insured institutions must file with federal regulators).
252
Id. § 12.03(1)–(2) (“Because of its enormous exposure to losses . . . the federal government
requires every insured depository institution . . . to file detailed financial reports on a regular basis.”
(emphasis added)). Professor McCoy describes how the GLBA sought to streamline reporting
requirements for companies subject to oversight by multiple regulators, but may have “swayed too far”
in doing so—a concern made all the more apparent given the well publicized lapses of the SEC as of
late. Id. § 12.03(2).
247
2009]
685
253
or other functional regulators.
Additionally, legislation aimed at
creating new reporting standards may want to consider the value of
independent auditing, public disclosures, and mandatory penalties for
“false reports or late filings.”254 Finally, Chief Risk Officers or
comparable executives within investment banks should develop a working
relationship with Fed examiners that fosters enhanced transparency and
promotes greater market discipline.255
2. Regulation
Granting the Fed greater regulatory powers over investment banks will
necessarily conflict with the jurisdictional authority of the SEC. However,
given the critical role played by the lender of last resort during systemic
crisis, the Fed should be granted “the authority to set expectations and
require corrective actions as warranted in cases in which firms’ actions
have potential implications for financial stability.”256 The Central Bank
should also have the ability to establish prospective regulations designed to
limit the need for emergency discount window loans. For example, by
instituting a clear process by which the Fed can manage the anticipated
insolvency of an investment bank, the likelihood that a disorderly failure
will instill fear in the markets is reduced, as is the potential for banks runs
and contagion.257 Additionally, as Chairman Bernanke has argued, the
Fed’s oversight of “systemically important payment and settlement
systems” must be explicitly delineated so that the Fed can ensure that these
systems remain fluid in crisis situations.258 As a benefit to the firms,
greater regulation should, in turn, allow investment banks greater access to
the Fed’s “discount . . . window under nonemergency circumstances.”259
But, such access must not be seen as an excuse to ignore market
discipline.260 The SEC should develop policies intended to assist the Fed
in overseeing the operations of investment banks, yet “consolidated
supervision” of these firms is more efficient than the process currently in
253
See id. (“The Federal Reserve Board and its fellow agencies should not be dependent . . . on
the SEC . . . for reports on interaffiliate transactions and other ‘subtle hazards’ that could endanger a
bank or thrift’s safety and soundness.”).
254
Id. § 12.03(2)–12.03(4).
255
See FIN. STABILITY FORUM, REPORT OF THE FINANCIAL STABILITY FORUM ON ENHANCING
MARKET & INSTITUTIONAL RESILIENCE 22–26 (2008), available at http://www.financialstabilityboard.
org/publications/r_0804.pdf (recommending that “[r]isk disclosures by market participants” be
increased to improve transparency within the financial markets).
256
257
See Bernanke, Austin, supra note 186 (discussing the benefits of the FDIC’s ability to manage
the insolvency of commercial banks and how a similar system for securities firms may be needed).
258
Bernanke, Fin. Servs., supra note 189.
259
Kim Dixon & Karey Wutkowski, Financial Regulation Reform—But Not Paulson’s—Likely in
2009, INS. J., Aug. 25, 2008, http://www.insurancejournal.com/news/national/2008/08/25/93050.htm.
260
See Bernanke, FDIC, supra note 9 (“[A]ttention should be paid to the risk that market
participants might incorrectly view the Fed as a source of unconditional support for financial
institutions and markets, which could lead to an unacceptable reduction in market discipline.”).
686
[Vol. 42:647
261
place.
Therefore, the Fed’s supervisory role should be extended to
include oversight of investment banking and financial services firms,
which are now subsidiaries of depository institutions. New regulations
necessary to protect economic stability should be adopted with the
understanding that flexibility and some risk taking are vital to fostering
growth and innovation.262
3. Examinations
Creating a detailed examination process for the Fed to use in
overseeing financial services firms is critical. In keeping with its new role
as consolidated supervisor of investment banks, the Fed’s examination
authority should be enhanced to mirror that which exists for traditional
For example, “[s]afety and soundness
depository institutions.263
examinations” which generally assess a commercial bank’s infrastructure
in key areas such as “solvency,” “management,” and “information
technology,” ought to be implemented with new standards for investment
banks.264 Additionally, “compliance examinations” which focus on a
firm’s compliance with applicable “consumer and investor protection
laws” should be instituted to ensure that investment banks maintain
legitimate market operations.265 A rating system that appraises vital
elements of a firm’s operations may be beneficial, and examinations
should be conducted regularly so as to identify potential threats or risks
within single or multiple institutions.266 To accommodate the concerns of
the private sector, an “appeals process” similar to that used for depository
institutions would be useful in checking government discretion and
improving the accuracy of examinations.267 “To fulfill its responsibilities,
the Fed would also need to have the ability to look at financial firms as a
whole, much as the [Fed does] today when [it] exercise[s] [its] umbrella
261
Id.
See id. (“[R]eforms in the oversight of these firms must recognize the distinctive features of
investment banking and take care neither to unduly inhibit efficiency and innovation nor to induce a
migration of risk-taking activities to institutions that are less regulated or beyond our borders.”).
263
See MCCOY, supra note 203, § 12.04(1)(b)–(4) (discussing in detail the examination process
of “Federal bank examiners” over depository institutions).
264
Id. § 12.04(1)(b).
Safety and soundness examinations monitor the solvency of insured institutions,
evaluate management and follow up on areas of needed improvement. Safety and
soundness examinations include full-scope examinations, specialty examinations in
areas such as information technology and trust operations, and special examinations
that focus on specific issues of concern at an institution.
Id. (internal citations omitted).
265
Id.
266
See id. (describing how depository institutions are examined in accordance with specific
guidelines under the “Uniform Financial Institutions Rating System”).
267
See id. § 12.04(2) (explaining how banking examinations may be subject to an independent
review process).
262
2009]
687
268
authority over financial holding companies . . . .”
Increased
examinations of investment banks will provide Fed officials with
information necessary to enhance the efficacy of the government’s
containment of systemic risk, reducing threats to other sectors of the
economy and protecting individual consumers. When appropriate, the
results of examinations should be published to allow the interested public
the opportunity to review the state of an individual firm’s business
model.269 Of course, such disclosures must be mindful of the threat of
bank runs that co-exists with the public’s interpretation of a company’s
financial health.270
4. Capital Requirements
Another crucial factor in improving the Fed’s ability to contain
systemic risk is ensuring that investment banks have the necessary capital
resources to prevent the liquidity crisis Bear Stearns and other institutions
have recently faced. Leverage ratios must be controlled to guard against
the possibility of future government bailouts and reduce the occurrence of
moral hazard.271 Fortunately, proposals such as those announced in Pillar 1
of the Basel II Capital Accord provide detailed and practical frameworks
that the Fed can utilize in determining the best method for setting capital
reserve minimums for investment banks.272 Because depositors now have
an interest in the solvency of securities firms, leverage ratios must remain
conservative enough to protect against bankruptcy and illiquidity
quagmires. For those depository institutions that have now become the
parent company of investment bank subsidiaries, the Fed must make
certain that the vast resources of a depository institution do not become
indirect incentives for investment banks to assume more debt than the
subsidiary can afford. Thus, to provide the most protection for depositors,
reserve standards for investment bank subsidiaries should remain
independent of those of the parent holding company. Also, sections 23A
and 23B of the Federal Reserve Act must remain key safeguards in
restricting the types and extent of transactions that depository institutions
can engage in with their affiliates and counterparties.273 At no time should
268
See MCCOY, supra note 203, § 12.04(4) (describing how public disclosure of past examination
reports may improve the “accountability and consistency” of bank examinations).
270
See id. (“In sum, across-the-board disclosure of examination reports could provide valuable
information to some market participants, albeit at the potentially high cost of occasional bank runs.”).
271
See Morris & Shin, supra note 17, at 21–26 (using case analysis to describe why future
financial regulation must consider the possibility of leverage restraints on individual firms).
272
See BASEL COMM. ON BANKING SUPERVISION, INTERNATIONAL CONVERGENCE OF CAPITAL
MEASUREMENT & CAPITAL STANDARDS 12–14 (2005), available at http://www.bis.org/publ/bcbs107b.
pdf (outlining the process for determining minimum capital requirements as a basis for improving
banking regulation).
273
See Federal Reserve Act, 12 U.S.C. §§ 371c(a), 371c-1(b) (2006) (prescribing restrictions on
transactions with affiliates).
269
688
[Vol. 42:647
a “covered transaction” imperil the security and liquidity of any depositor’s
account,274 and regularly conducted examinations should stress the
consistency of an investment bank’s capitalization to confirm that the
subsidiaries’ leverage does not affect the health of the depository
institution.
5. Enforcement
How the Fed goes about enforcing its oversight authority over
investment banks is open to vast commentary. Nonetheless, the existing
structure of formal and informal275 enforcement mechanisms for
commercial institutions may again provide useful guidance in this respect.
For example, aside from the “examination process[es],” “board resolutions
and commitment letters,” and “supervisory directives,” which comprise the
bulk of informal bank supervision, the Fed should also be allowed to
impose “cease-and-desist orders,” officer and director suspension (and
removal or prohibition), and civil monetary penalties against securities
firms when federal regulatory compliance is lacking, or the investment
bank’s practices deviate from “generally accepted standards of prudent
operation.”276 Additionally, lawmakers may want to consider the potential
benefits afforded by “agency adjudication”277 and public disclosure278 in
insuring that investment banks maintain acceptable investment and risk
portfolios. However, it is vital that a proper balance between regulatory
enforcement and market independence be maintained. In this regard,
enforcement mechanisms may in some circumstances be subject to judicial
review,279 with top Fed officials periodically assessing enforcement
standards to confirm that regulation is not stifling market progression and
economic growth.
At the risk of oversimplifying the problems inherent in creating a new
regulatory framework for investment banks, the preceding discussion has
offered several suggestions for improvement of the Fed’s oversight
authority in the financial services industry. Clearly, the topics focused on
do not exist exclusively from one another or in isolation of other
considerations which are relevant to this issue. For instance, complications
will soon arise when one factors in the important issues of private sector
reluctance, global central bank policy coordination,280 and securities274
See id. § 371c(b)(7)A–E (defining covered transactions).
See MCCOY, supra note 203, §§ 13.02, 13.03(4)–(10).
Id. §§ 13.02, 13.03(3), 13.03(5), 13.03(6).
277
Id. §13.03(9).
278
Id. § 13.03(10).
279
See id. § 13.03(1) (discussing the potential avenues of judicial review for formal enforcement
mechanisms in the commercial banking context).
280
See Ben S. Bernanke, Chairman, Fed. Reserve, Speech at the Fifth European Central Bank
Conference (Nov. 14, 2008), available at http://federalreserve.gov/newsevents/speech/bernanke
275
276
2009]
689
281
specific regulation.
Nevertheless, each contribution to this topic
encourages the reform that is essential to economic recovery.
B. The Current Reality
The global economic crisis that continues to wreak havoc in the United
States and other countries is as far-reaching as it is complex. For nearly
two years, the world has witnessed the destruction of financial
powerhouses, the deterioration of the stock and credit markets, and
repeated attempts by political leaders to rejuvenate the economy through
unprecedented government programs. Unfortunately, the crisis
demonstrates how regulatory inadequacies have allowed irresponsible and
reckless trade practices to create a worldwide catastrophe not seen since
the 1930s. “For years, too many Wall Street executives made imprudent
and dangerous decisions, seeking profits with too little regard for risk, too
little regulatory scrutiny, and too little accountability.”282 The excesses of
greed and carelessness have been seen by all Americans who have suffered
from the exploitation of investment products by financial firms and their
managers. Moreover, vast sums of public money have been taken from the
coffers of taxpayers in an effort to rescue the financial system from those
who have profited from its unrestrained manipulation. As this disaster best
illustrates, a robust and dynamic twenty-first century economy cannot
survive in the midst of such abuses.
Because of the diversity of problems posed by the current recession,
investment banking and financial services regulatory reform is likely to be
a drawn-out process that may take years to complete. However, the
existing regulatory structure is incapable of providing the type of oversight
and supervision that is required of modern financial markets and the
enterprises involved therein. Consequently, new policies are an inevitable
and indispensable feature of stable financial growth, new investor
confidence, and economic recovery in general.
VI. CONCLUSION
The story of Bear Stearns is in many ways a microcosm for the larger
economic calamity that began in late 2007 and continues to this day. As
Wall Street’s fifth largest investment bank, Bear used aggressive tactics
20081214a.htm (discussing the importance and challenges of ongoing policy coordination between
central banks across the globe).
281
For example, any new regulations imposed on investment banks must be implemented in a
way that will complement the controls adopted for CDS, ABS, and other complex securities and
derivative products.
282
Pres. Barack Obama, Speech at George Mason University: American Recovery and
Reinvestment (Jan. 8, 2009), available at http://www.marketwatch.com/news/story/text-obama-speecheconomy/story.aspx?guid=%7B4C5C66C9-2BD5-4870-8FE2-02BC6B75F3E7%7D&dist=msr_1
(emphasis added).
690
[Vol. 42:647
rooted in unchecked speculation to acquire and sell exotic financial
products whose value was uncertain and largely dependent on the
continued success of the housing market. In the absence of strict oversight,
Bear sold complex derivative investments that pushed the firm’s debt
beyond the point backed by readily available liquid assets. Then, when the
housing bubble burst, Bear’s infrastructure collapsed under the weight of
its irresponsible balance sheet, bringing the securities firm to the brink of
bankruptcy.
Constrained by antiquated laws providing only a limited number of
options to choose from, the Central Bank intervened to prevent Bear
Stearns’s disorderly failure, fearing that the firm’s downfall would touch
off an uncontrollable domino effect among similar institutions. In doing
so, the Fed committed billions of dollars of taxpayer money in an effort to
prevent a larger disaster, the implications of which could not be fully
predicted. Such actions raised important questions regarding the legality
of the Fed’s brokerage of the sale of Bear Stearns to JPMorgan, especially
the risk posed to commercial depositors that had been a focus of federal
laws aimed at precluding similar transactions. And despite the bailout,
investment banks continued to fail, while others drastically changed their
business structures to survive the loss of investor confidence that continues
to shake the foundation of Wall Street itself.
Now, in the aftermath of the devastation of America’s investment
banking industry, the call for regulatory reform has been widespread and
intense. As the past two years demonstrate, the federal government must
be granted broader authority within the financial services industry to
effectively manage systemic risks in a way that reduces the likelihood of
future bailouts and reckless market practices. Still, this reform must also
preserve the competitiveness of key sectors of the United States economy.
Given the Fed’s assumed role as steward over much of the existing
investment banking landscape, it should be given the supervisory powers
needed to fulfill its newfound responsibilities.
If one considers the development of the current economic crisis from a
macro level, the comparisons to be drawn from the Bear Stearns incident
are apparent. First, the demise of the housing market and the onset of the
mortgage crisis precipitated the failure (or near failure) of some of Wall
Street’s largest institutions. In turn, these events threatened the vitality of
the entire economy. Second, the federal government took unprecedented
actions to bail out the financial system, injecting up to $700 billion of
public money into the ailing credit and securities markets. But the
economy continued its recessionary fall, with investors fleeing,
unemployment rising, and growth stagnating. Finally, in the wake of this
catastrophe, the Obama administration and Congress have promised
sweeping regulatory programs designed to combat the failings of existing
frameworks, while also strengthening economic resilience and progression.
2009]
691
In this way, both Bear and the larger crisis have followed the course from
failure, to bailout, to calls for reform.
CONNECTICUT
LAW REVIEW
VOLUME 42
DECEMBER 2009
NUMBER 2
Note
THE ROLE OF PARENTS INVOLVED IN THE
COLLEGE ADMISSIONS PROCESS
MICHAEL P. POHORYLO
After the U.S. Supreme Court decided the 2003 University of Michigan
affirmative action cases, the law concerning the use of race-based
affirmative action programs in the college admissions process seemed to
be settled for the next few decades. However, in 2007, the Supreme Court
once again revisited the use of race-based affirmative action, this time at
the K–12 level, and subtly, yet significantly, altered how the law will treat
challenges to affirmative action programs in higher education. The
purpose of this Note is to examine the likely impact the holding of this 2007
U.S. Supreme Court case, Parents Involved in Community Schools v.
Seattle School District No. 1, will have on both the current case law
surrounding the use of race-based affirmative action policies in the college
admissions process and the development and implementation of future
institutional affirmative action policies. In addition, this Note explores the
public policy effect resulting from restrictions on the freedom of
institutions to create their own admissions policies.
693
NOTE CONTENTS
I. INTRODUCTION ................................................................................... 695
II. AFFIRMATIVE ACTION IN AMERICAN SOCIETY ........................ 698
III. AFFIRMATIVE ACTION IN THE COURTS...................................... 702
A.
B.
C.
D.
PRETEXT TO BAKKE ............................................................................. 702
BAKKE.................................................................................................. 703
HOPWOOD ........................................................................................... 705
THE UNIVERSITY OF MICHIGAN AFFIRMATIVE ACTION CASES ........... 707
IV. THE LEGACY OF PARENTS INVOLVED IN HIGHER
EDUCATION ....................................................................................... 711
A. PARENTS INVOLVED .............................................................................. 711
B. IMPACT ON HIGHER EDUCATION ......................................................... 715
V. THE BENEFITS OF DIVERSITY IN HIGHER EDUCATION
FOR STUDENTS AND SOCIETY ...................................................... 723
A. SPECIFIC BENEFITS TO SOCIETY AND INDIVIDUALS ............................. 724
B. ALTERNATIVES TO RACE-BASED AFFIRMATIVE ACTION
ARE NOT A SUITABLE REPLACEMENT ............................................. 726
VI. CONCLUSION ..................................................................................... 731
THE ROLE OF PARENTS INVOLVED IN THE
COLLEGE ADMISSIONS PROCESS
MICHAEL P. POHORYLO*
I. INTRODUCTION
After the United States Supreme Court decided the 2003 University of
Michigan affirmative action cases,1 college administrators rejoiced in what
many saw as a victory over the opponents of race-based affirmative action
policies in the college admissions process.2 While these decisions did not
go so far as to ensure that the use of race-based affirmative action policies
would be a valid practice forever,3 administrators knew that for the
foreseeable future they could consider the race of an applicant during the
admissions process. Specifically, in affirming the precedent set in Regents
of the University of California v. Bakke,4 the Supreme Court held that
achieving a diverse student body within the realm of higher education was
a compelling government interest, and, as a result, race-based affirmative
action policies could withstand strict scrutiny if they were narrowly
tailored.5 Although these policies had to be narrowly tailored to survive
judicial review, colleges and universities were still provided with sufficient
autonomy to adopt admissions standards that were consistent with their
educational mission and the needs of their communities.
By 2006, however, this period of celebration had already come to an
abrupt end when the U.S. Supreme Court decided that it would address the
issue of whether race could be used as a factor in assigning K–12 students
*
Amherst College, B.A. 2004; Boston College, M.A. 2007; University of Connecticut School of
Law, J.D. Candidate 2010. I would like to thank Dean and Professor Darcy Kirk for her suggestions
and comments throughout the writing process. I would also like to thank my parents, Michael and
Diane Pohorylo, for their years of guidance, without which this Note would not be possible. Finally,
this Note is dedicated to my wife, Morgan, for her endless encouragement and support. All errors
contained herein are mine and mine alone.
1
These cases were published as Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger,
539 U.S. 244 (2003).
2
See, e.g., Narrow Use of Affirmative Action Preserved in College Admissions, CNN, Dec. 25,
2003, http://www.cnn.com/2003/LAW/06/23/scotus.affirmative.action (“[T]his is a wonderful,
wonderful day—a victory for all of higher education, because what it means at its core is that
affirmative action may still be used and the court’s given us a road map to get there . . . .” (quoting
University of Michigan President Mary Sue Coleman)).
3
See Grutter, 539 U.S. at 343 (“We expect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest approved today.”).
4
See 438 U.S. 265, 311–12, 315–17 (1978) (holding that achieving a diverse student body was a
constitutionally permissible goal for colleges and universities but that race could not be the deciding
factor in determining whether an applicant was admitted).
5
See infra notes 111–13 and accompanying text.
696
[Vol. 42:693
6
to public schools. Although the Court would be addressing this issue
within the K–12 education system alone, many experts debated whether
the University of Michigan affirmative action cases would still be good
law after a decision was rendered.7 While some experts in higher
education law believed that the holding would have no effect on the
Michigan rulings, others believed that the Court would suggest that it was
“open” to revisiting the 2003 holdings and possibly revising the precedent
set at that time.8 Many of the fears among the supporters of race-based
affirmative action were later alleviated when the Court decided Parents
Inv

Dec. 2009 - Connecticut Law Review

Transcription

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