The Faculty Lounge

Justice Scalia: If The ACA Is Really Just SCOTUSCare...

Does that mean George W. Bush is really just SCOTUSPOTUS?

H/T to my amazing wife and colleague, Chapin Cimino.

Notorious RBG

Sunday may have been Election Law Day at the AALS, but Saturday was RBG day.  Justice Ginsburg gave a moving introduction at the Women in Legal Education luncheon honoring her friend Herma Hill Kay, whose speech was equally inspiring.  The Justice also spoke about her own formative experiences and days in law school in her conversation with Wendy Williams at the subsequent Women in Legal Education and Legal History session. You can read the highlights of her talk here—including the confirmation of her good health and her mother-in-law’s advice for a good marriage (it helps to be a little deaf), which Justice Ginsburg also finds helpful in relations with her colleagues.  

The Justice also seemed to enjoy the panel presentations by the scholars studying women’s legal history, and contributed her own thoughts on the history of the post-suffrage movement.  She made particular note of how, when Chief Justice Taft and Congress forced the National Women’s Party to move its headquarters so that the Court could have the site for its present building, the NWP counsel, Burnita Shelton Matthews (who would become the first women on the federal bench), fought congressional efforts to pay less than fair market value and obtained what was at the time the highest condemnation payment by the U.S. government. (The headquarters moved to the final location, at left, which is now a museum preserving and celebrating the history of women’s suffrage and equality.) 

Justice Ginsburg and Women’s Legal History at AALS

This is my first visit to the Lounge, and I want to thank Al and Dan and the crew for inviting me to post.  As the outgoing chair of the AALS Section on Legal History, I thought I would begin with some shameless promotion of the fantastic panel on women’s legal history we have at AALS this coming Saturday afternoon.  This is a joint program with the Section on Women in Legal Education (chaired by my friend and colleague, Kirsten Davis), and is co-sponsored by the Section on Constitutional Law.  Many readers will know already that the highlight of the panel (and of the conference) is a conversation with Justice Ginsburg, hosted by Wendy Williams.  Justice Ginsburg has been called the “Thurgood Marshall” of women’s rights, and while that moniker elides important differences in history, context, personality, etc., it certainly captures the significance of her role.  I will reserve a future post to explore some thoughts on what is said at the AALS program, but it is particularly fitting to have the Justice at this joint program since, in addition to her pivotal role in the modern history of women’s rights, she was also a founder of the Section for Women in Legal Education and a trailblazer for women in our profession, as this paper by Herma Hill Kay, this year’s recipient of the Women in Legal Education section’s Ruth Bader Ginsburg Lifetime Achievement Award, sets out so well.  As I discuss below the fold, Justice Ginsburg’s work sets the stage for the full program on the field of women’s legal history.

U.S. Supreme Court Fellowships

Mizzou law professor Stacie Strong, herself a former U.S. Supreme Court Fellow (2012-13), passes along this information:

The U.S. Supreme Court Fellows program is now accepting applications for the 2015-2016 term.  The fellowship, which is open to both junior and mid-career candidates, might be of interest to both current and aspiring academics as well as graduating and recently graduated law students.  Four fellowships are awarded each year, and each fellowship is unique in its scope and focus.  Interested persons can read more about the program at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378584.  The application process is described at http://www.supremecourt.gov/fellows/default.aspx. Applications are due by November 14, 2014.

Federal Pleading

    As many of you know, my main area of academic interest is cyberlaw and intellectual property. But I also spent a fair amount of time teaching civil procedure and have an interest in how procedure affects substantive rights. I have certainly been aware of the major change in federal pleading brought about by Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Supreme Court transformed how federal pleading works from the “notice pleading” recognized by Conley v. Gibson, 355 U.S. 41 (1957), to a new standard often called plausibility pleading. See Twombly, 550 U.S. at 556.

    Although the Supreme Court couched the transformation of pleading standard as an attempt to clarify a rule that had been “questioned, criticized, and explained away,” Twombly, 550 U.S. at 562, it was, in reality, a modification of the rules of pleading that had been written into the rules from their origin in the 1930s. This difference has now returned to cause great difficulty in the intellectual property field, particularly for patent infringement claims. As several courts have now discovered, the Supreme Court’s modification of Rule 8 without following the Rules Enabling Act’s provisions that allow the rules to be amended, see 17 U.S.C. §§ 2071–74, have left us with a set of federal rules that are internally inconsistent. Rule 84 reads, “The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” Comparing the new plausibility pleading standard with Form 18 (supposedly sufficient to state a claim in patent infringement) brings out the conflict. As one court stated:

Without doubt, Twombly and Iqbal also implicate the “sufficiency” statement in Rule 84. In particular, when Rule 84 says that a form “suffices under these rules,” it obviously refers, inter alia, to Rule 8(a) and to Form 18 which posits what was thought before Twombly and Iqbal to be sufficient, at least as to claims of direct infringement. And, if the Supreme Court, as it clearly did in Twombly and Iqbal, says that Rule 8(a) must be applied differently than is provided for in a form, then the viability of the form must be measured against the new standard, even if the effect of doing so is to nullify the form.

Macronix Intern. Co., Ltd. v. Spansion Inc., 2014 WL 934505 (E.D. Va. 2014). In other words, Twombly and Iqbal have repealed Rule 84.

    Another district court dealing with an similar patent infringement claim was willing to call out the Supreme Court:

The Forms in the Federal Rules Appendix, such as Form 18, satisfy the federal pleading rules and illustrate the simplicity and brevity that these rules contemplate. Rule 84 and the Advisory Committee notes to the 1946 amendment of Rule 84 make clear that the proper use of a form contained in the Appendix of Forms effectively immunizes a claimant from attack regarding the sufficiency of the pleading. That immunizing effect is not altered by variations in regional circuit law, because the Federal Rules cannot be amended by judicial interpretation. Accordingly, to the extent any conflict exists between Twombly (and its progeny) and the Forms regarding pleading requirements, the Forms control. Nevertheless, an implausible claim for patent infringement rightly should be dismissed.

JDS Uniphase Corporation v. CoAdna Photonics, Inc., 2014 WL 2918544 (N.D. Cal. 2014) (quotation marks and citations omitted).

    Examining Form 18 shows how far plausibility pleading is from what the rules establish as the requisite. To allege patent infringement, the form requires four paragraphs:

    1.    A statement of jurisdiction (Referencing Form 7: “This action arises under Title 35 of the U.S. Code.”).
    2.    A statement of patent ownership (“A U.S. patent no. ###### that claims <short description of patent claim> was issued on <date> to the plaintiff who owned it during the infringement and still owns it.”);
    3.    A statement of infringement (“The defendant has infringed the patent by making, using or selling it.”); and
    4.    A statement of notice of patent (“A statutory notice was placed on the product by the plaintiff and a written notice of infringement was sent to the defendant.”).

Note that many of these phrases authorized by Form 18 are “conclusory [in] nature.” Iqbal, 556 U.S. at 681. Paragraph 1 states the conclusion that the action is brought under Title 35. Similarly, paragraph 2 establishes ownership without pleading the facts that establish it; paragraph 3 asserts infringement without providing the facts of when this happened, where it occurred, how it was done, or even which products of the defendant were infringing; and paragraph 4 concludes compliance with notice provisions without any specification of the when, where, how or why.

    Now, of course, the requirement of pleading a patent infringement complaint (or most other actions, see, e.g., Form 10 & 11) is unclear. Cautious counsel may spend considerably more time drafting a complaint so that it begins to resemble the “who, what, when, where and how” that was required by the code pleading system the Federal Rules replaced. The extra money this is likely to cost may be worth it if it avoids a 12(b)(6) battle over the form of the pleading even though avoiding pleading battles now is as unlike as it was under the code system of pleading.

    Rule 84 demands “simplicity and brevity.” Rule 8(e) demands a pleading system “to do justice.” The Supreme Court’s target may have been business and civil rights litigation as were involved in Twombly and Iqbal, but no matter that shows up in federal court is likely to be immune. Let’s argue about the form of the pleading rather than the merits of the action. Counsel: Prepare your demurs and your dilatory and peremptory pleas!

Cell Tower Data: Circuit Court Split on Search Issue

The 11th Circuit held that a defendant's cell phone tower data (i.e., general location of where the defendant was on a certain day and time) obtained by the police from a cell phone carrier is a search within the meaning the 4th Amendment.  This puts them at odds with the 5th and 6th Circuits, opening the possibility of the Supreme Court granting cert sometime soon.

The use of generic cell phone tower data appears very similar to the pen register used in Smith v. Maryland (1979).  If the police, as in Smith, can request the phone numbers someone dialed from their phone located inside their home, it is not much of a stretch to ask the same phone company for a person's whereabouts on a certain day and time without a warrant.

Do I have a reasonable expectation of privacy in my day-to-day activities based on where my cell phone is located.  I certainly do not have a subjective expectation of privacy, and I certainly do not like knowing that I can be tracked.  So the real question is whether society, through five justices, will find that we have a reasonable expectation of privacy.

Supreme Court Bootleg: "Live At The Corinthian 2014"

Not sure how I missed this.  Earlier this year, activists stood up in the Supreme Court to protest the Court's campaign finance decisions.  But one of the most interesting aspects of the protests was that protesters created a bootleg video of the court in session.  You can't see or hear much, but it's a one-of-a-kind document of the Court in action. 

Not so certain about this Supreme Court Boot, but bootlegs surely have an important role in documenting ephemeral moments.  I'm particularly thankful that some people managed to score unauthorized recordings of  the final Richard and Linda Thompson tour, circa 1982.  I saw the couple (complete with sturm and drang) in Providence, Boston and New York but chestnuts from the Baltimore show can be found here. 

Whether or not to listen or view to these unauthorized boots  is a matter between you and your God. 

Family Survives Poisoned Burritos!

Surely my favorite citation in the Supreme Court's decision today in Bond v. US.  The Court held that the Chemical Weapons Convention Implementation Act could not be used to prosecute Carol Anne Bond for trying to give her husband's paramour a severe rash.    Justice Roberts argued that the burrito incident, and its aftermath, proved that Pennsylvania was perfectly able to punish this sort of mischief under state law.

Opinion here.

A Post from a Second Class Citizen

    I want to follow up on Eric Muller’s short complaint yesterday about the Town of Greece case. I, too, feel that, for the first time in my life as an U.S. citizen, the doors of government are closing on me because of my religion.

    To be fair, the case is not affecting me in a vacuum. The recent attacks and murders in Kansas City where people were killed allegedly because the assailant perceived them to be Jewish has an impact. The recent flyers notifying Jews in Eastern Ukraine that they were required to register with their town merely because they were Jews has an impact. The fact that a family member’s synagogue needs an armed police guard for Saturday services has an impact. The fact that, in my state, being a member of the Anti-Defamation League serves to disqualify you from service on the bench has an impact. But so too does a case that tells me that history is the best judge of the boundaries of the Establishment Clause. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Town of Greece, New York v. Galloway, No. 12–696, slip op. at 8 (Sup. Ct. 2014). Let’s look at this history: the Crusades; Inquisition; hundreds of years of European wars over religion; pogroms throughout Russia and Eastern Europe both before and after World War II; religiously-based conflicts in India, Yugoslavia, Sudan, Israel/Palestine, Armenia, and numerous other countries around the world too numerous to list; and, of course, the Holocaust.

    For at least the last 1,000 years, we have been killing each other because of religion. The great hope for the U.S. constitutional democracy was that, by removing government from the religion game, we could put this history behind us. Unfortunately, the Supreme Court has started a process of disenfranchising U.S. citizens based on religion. To attend a government meeting in Greece, New York — and soon in many other towns throughout the U.S. — one must first now accept a call to prayer that will serve to define the majority’s view of proper religious behavior. With no Jewish, Muslim, Buddhist, or Hindu houses of worship in Greece, New York — and in many other towns throughout the U.S. — the prayers will be Christian.

    The Court’s majority seem to think that sectarian prayer will improve the process of government. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 14. How does one religion’s prayer trigger “shared ideals?” Why would a minority member feel that a “common end” will be easier to achieve now that someone else’s religion (or for the atheist, religion itself) has been proclaimed as dominant? No, the opposite occurs. The minority is being instructed — “You are only here because we tolerate you, but don’t, not even for a minute, believe that you are a member of the community.”

Justice Scalia's Dissent in Windsor & Why Everyone Should Learn Indian Law

I was reading Justice Scalia's dissent in Windsor the other night and came across a statement that was wrong in regard to whether the Court had decided a previous case in which the plaintiff and defendant were not adverse.  There is a very clear example from federal Indian law that contradicted his statement that the Court has never decided such a case, yet no one, as far as I could tell, cited it in the briefs or in any of the opinions.  This experience reminded me how important Indian law is, even for those who don't practice or teach it.

Specifically, Justice Scalia says "[w]e have never before agreed to speak--to 'say what the law is--where there is no controversy before us."  United States v. Windsor, 133 S. Ct. 2675, at 2700 (Scalia, J., dissenting).  So convinced is he of this proposition that he repeats later on, "[t]he majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below."  Id. at 2702.

Yet, in Menominee Tribe v. United States, 391 U.S. 404 (1968), Justice Douglas, writing for the majority, explains:  

" The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts.  On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed."  Id. at 407 (emphasis added).

This could have been an incredibly useful case for the majority opinion (and the plaintiff's argument), and knowing about it and distinguishing it could have strengthened Justice Scalia's dissent, but apparently it was on no one's radar, which demonstrates I think just how marginalized federal Indian law is.  

Justice Scalia, for his part, has, at least in the past, controversially suggested that he doesn't need to decide Indian law cases based on precedent, so perhaps there is little reason, in his view, for him to be well-versed in the precedents.   In a 1990 memo to Justice Brennan, he is reported  to have said:  "[O]ur opinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects, down to the present day."  Philip P. Frickey, "A Common Law for Our Age of Colonialism: the Judicial Divestiture of Indian Tribal Authority over Nonmembers," 109 Yale L.J. 1, 63 (1999) (emphasis added).  And, of course, it wasn't just Justice Scalia's oversight--apparently no one thought to raise or distinguish Menominee Tribe.  

But Windsor is evidence of why federal Indian law is important, even if you don't expect to teach it, practice it, or decide cases based on it.  It relates to other areas.   Not only do the cases include structural constitutional issues like the case or controversy requirement, but federal Indian law, contrary to most people's perceptions, is a very broad subject.  Issues of taxation, criminal jurisdiction, civil jurisdiction, civil rights, administrative law, environmental law, and child welfare all come up with some regularity.

And that's just the beginning.  There's also the fact that federal Indian law is incredibly interesting in it's own right, and it provides important insight into our government and society.  Felix Cohen, the primary architect of the field, once explained:  "'Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians . . . reflect[s] the rise and fall in our democratic faith."   Rennard Strickland, "Indian Law and the Miner's Canary:  The Signs of Poison Gas," 39 Clev. St. L. Rev. 483, 483 (1991).  If you want to learn about white fear, for example, just read a Supreme Court case about tribal jurisdiction.  Jurisdiction cases such as Oliphant v. Suquamish Indian Tribe, Plains Commerce Bank v. Long Family Land & Cattle, Nevada v. Hicks, and Justice Kennedy's concurrence in the judgment and Justice Souter's dissent in United States v. Lara are replete with concerns (sometimes implicit but always readily perceptible) that tribes will not treat non-member litigants fairly.  Sometimes I wonder why all of this concern exists.  And then America's history of interaction with tribes pops into my head and explains it.  Assimilation, termination, extermination have all been official U.S. policies with respect to tribes.  As a psychological matter, the fear is understandable.

Along with white fear, you can see the cases in a broader context and think about our government's hypocrisy.  While the Court worried about potential unfairness to nonmember litigants in tribal courts, and denied tribal jurisdiction as a prophylactic measure to prevent it, American officials were busy waterboarding and otherwise torturing non-citizens suspected of terrorism, and the federal courts seemed eager to avoid hearing about it. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007); Ann E. Tweedy, "Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States V. Lara: Notes Toward a Blueprint for the next Legislative Restoration of Tribal Sovereignty," 42 U. Mich. J.L. Reform 651, 707 n.274 (2009).

 And beyond of all these macro issues, federal Indian law, given its variety and complexity, is endlessly interesting.  Not to mention that working for tribes is an incredible learning experience and one of the best jobs out there.

12 Years a Slave: Race in Supreme Court Decisions

The second in a two-part post on my reaction to the movie "12 Years a Slave." See Part One Here. 

 How much of slavery’s dreadfulness do we see in our law and history? Is it enough? Americans in the founding era owned slaves. They sexually assulted slaves. They whipped slaves and they watched idly as child slaves were torn away from their mother slaves.

    To be sure, our history and jurisprudence do not have to be protracted atonements for the sins of our Fathers. We have come so far since three-fifths. But as we lionize the American Founders, it becomes too easy to argue that slavery was legal and moral in its day, or that the Constitution eventually became a blueprint for equality for blacks.

    In 1772, Great Britain’s highest court held that chattel slavery was unlawful in England. Revolutionary heroes must have feared England would take away their freedom not just to buy taxless tea, but to own and sell slaves.

    Fast forward to the present. In a mere twenty-five years from its 2003 decision limiting affirmative action in Grutter v. Bollinger, the United States Supreme Court told us that the day of racial equality would be upon us. That is now fifteen years from today. After two and a half centuries of African slavery in America and another century of active, overt injustice, is fifteen more years enough?

    In 1978, the Supreme Court mentioned slavery forty-one times in its seminal decision upholding race-conscious admissions in Bakke. Just this past year in Fisher v. Univ. of Texas, which again put the practice under strict scrutiny, that number dropped to ten, all in a concurrence penned by Justice Clarence Thomas. And in Shelby County v. Holder, the 2013 case dismantling the Voting Rights Act, the Court referenced slavery but once. That number may dwindle to zero the next time the Court takes on race.

    We will find out soon, when it passes judgment on Schuette v. Coalition to Defend Affirmative Action, which examines Michigan’s constitutional ban on race considerations in public university admissions. The Court, which heard oral argument in this case on October 15, will likely hold that such bans are constitutional.

    The ablution of slavery from our legal precedents explains our Court’s evolution on issues of race. But have we come far enough to justify turning this bloodstained page?

    The level of satisfaction we convey with our history, our Constitution, and the state of race in America may represent its own kind of “unspeakable happiness.” I cannot yet say what we must do now, except, of course, remember. Nevertheless, I feel confident that if we see this movie we might share the same answer to a most pressing question. Is this enough?

Thanksgiving and the Madison County v. Oneida Indian Nation Case

Thanksgiving is always a good time for non-Natives to reflect on the colonial history of the United States and particularly the lands that have been granted by tribes in some cases and, in others, taken forcibly or through patently unfair negotiations.  And this term, a case pending before the Supreme Court raises these very issues.  As the current Court term churns along and conferences and arguments are conducted and orders are issued, one case from last term--Madison County v. Oneida Indian Nation of New York—remains stalled.  The case was distributed on January 30 for a February 15 conference, and thereafter the Solicitor General was invited to present the views of the United States, which he has not yet done.  The main issues in the case are (1) whether the Oneida Indian Reservation in New York has been diminished or disestablished (despite a 1985 Supreme Court holding that New York’s 1795 land purchase from the Tribe was void because it had not been federally ratified) (2) and whether the Tribe’s sovereign immunity bars foreclosure of its land for nonpayment of taxes. 

In the Counties’ brief in support of the petition for certiorari, they claim that a holding in the Tribe’s favor on the disestablishment question would contravene the “justifiable expectations” of non-Indians in the area, who have come to expect to be exposed to little if any tribal presence or power.   As I explained in a recent article, the Supreme Court routinely makes similar assumptions in favor of non-Indian residents and past land purchasers in tribal jurisdiction and reservation diminishment cases.  See generally Ann E. Tweedy, “Unjustifiable Expectations:  Laying to Rest Allotment-Era Settlers,” 36 Seattle U. L. Rev. 129 (2012).  There are numerous problems with this type of assumption, however, and it can be hoped that the Solicitor General will raise some of them in his response. 

One problem is that the Supreme Court does not evaluate these presumed non-Indian expectations in historical context to ensure that were in fact justifiable, or, in other words, rooted in justice.  As I explain in “Unjustifiable Expectations,” which presents my original historical research as to Sioux Nation lands in South Dakota, in many cases, tribes were deprived of the lands unfairly (and illegally by constitutional takings standards) and surrounding settlers knew of these injustices when they purchased tribal lands.  Another related problem is that the Supreme Court does not address whether Indians and tribes have—or had—justifiable expectations with respect to their own land rights, which should be weighed in the analysis.  See, e.g., Ann E. Tweedy, “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment,” U. Toronto Q. vol. 82, No. 4, 923-948, at 944 (Fall 2013, forthcoming). 

Although the Oneidas were deprived of their lands through illegal purchases earlier than many other tribes, there is ample information about the injustices in their land transactions both with private speculators and the State of New York.  See generally Anthony Wonderley, “’Good Peter’s Narrative of Several Transactions Respecting Indian Lands’:  An Oneida View of Dispossession.  1785-1788,” New York History, vol. 84, No. 3, 237-273 (Summer 2003).  This information sheds light on both the justifiability of any non-Indian settlers’ expectations that they would enjoy the Oneida lands free of Oneida presence and influence and the Oneida Nation’s justifiable expectations with respect to these same lands and its continuing interest in them.   

The Wonderley article presents the story of the Oneida’s dispossession in the late 1700s primarily from the perspective of an Oneida Chief Warrior who was called Good Peter by whites.  Good Peter recounted the events to a federal official named Thomas Pickering in 1792.  The article is well worth reading in full, but here are a few highlights.   

After the Revolutionary War, the Oneidas returned to their homeland in 1783-84.  Although they were “impoverished and greatly reduced by war, disease, and hunger,” they fully anticipated support and help from the United States and New York State as they were among the few Iroquois who had fought on the U.S. side in the war.  Wonderley at 242.  Unfortunately, their faith was misplaced.  New York’s economic recovery plan after the War was based in part on acquisition of Iroquois lands, which it could then use as collateral as well as eventually sell at a profit or give to veterans in lieu of pay.  In fact, Governor Clinton, who was Governor of New York from 1777 to 1795 is said to have “long cherished the hope of Oneida Removal.”  Wonderley at 245.  A State Commission to obtain Iroquois lands was dispatched in 1784 to Iroquois territory, but this commission failed with respect to Oneida lands because the Oneidas had been forewarned.  Immediately, however, speculators began moving in, some of whom falsely represented themselves as agents of the State.  The methods of an early group led by one John Harper included plying Indians with alcohol in order to get them to sign away their lands.   Wonderley at 246. 

New York responded to news of the speculators’ efforts by redoubling its own efforts.  Despite repeated public refusals to sell in the treaty minutes in June 1785, the Oneidas agreed through a spokesperson to sell 300,000 acres for moneys and goods worth $11,500 the following morning.  According to the Oneida account, New York obtained the cession over the objection of some Oneida chiefs by promising that this would be the last purchase of Oneida lands by anyone and by threatening to withdraw protection from the Oneidas against the State’s own “unruly and avaricious citizens” if the Oneidas did not sell.  Wonderley, at 249-250.  The same threat was made again in 1788.   During both 1785 and 1788, many Oneidas were literally starving, a fact which New York took full advantage of, even rescheduling one treaty conference to ensure that the Oneidas would be desperate from hunger during the negotiations.    

                                                                                                                                                                                                                                 Image from Yale University Art Gallery

In the late 1780s, another group of speculators led by John Livingston, claiming to represent New York, began attempting to gain rights to Oneida and other Iroquois lands through a 999-year lease, and they succeeded in this goal of leasing virtually the entire Oneida territory in 1788.  One questionable tactic they used was to pay trusted leaders and confidantes among the Oneidas to support their plans.  Wonderley at 258.  After the lease had been signed but apparently before the Oneidas received the promised consideration, the Governor of New York learned of the plan and appeared ready to come to the aid of the Oneidas to invalidate the lease—promising that he would “recover your lost country, & to raise it out of the waters”--but in truth New York only wanted Oneida lands for itself.  As Good Peter explained “We had expected from the Governor’s love to us, that his intention was to recover our lost and drowned country and restore it to us.”  Wonderley at 259. 

New York invalidated the 999-year lease through its legislature in 1788, and, without notifying the Oneidas that this had been done, immediately began pressuring the Oneida to sell its land to New York.  Not only did this 1788 “agreement” as written down by New York contain considerably more land than the Oneidas had actually agreed to, Wonderley at 267-68, it also framed the written agreement as a sale, although the Oneidas believed—and stated in the treaty conference—that they were agreeing to a lease.  Wonderley at 272.   Good Peter explained the discrepancies this way:

                “We Indians are unwise:  And our want of wisdom is owing to our want of knowledge in the ways of white people.  White people say to us—‘This Measure will be for your good.’  And we have always been accustomed to obey this voice . . . as we verily thought our white brothers meant good to us:  and hence we have been deceived with respect to our lands.”  Wonderley at 271.

This perspective of the Oneida leader Good Peter is of course a far cry from the claims of the Counties in their brief regarding justifiable expectations.  Relying primarily on a version of Felix Cohen’s Handbook of Federal Indian Law that, after Cohen had resigned from the agency, was rewritten by termination-era Department of Interior officials in order to maximize support for the federal plan to terminate the trust relationship between tribal governments and the United States, the Counties suggest in their brief that the Oneidas simply ceded their lands in the State of New York by treaty and removed to Wisconsin in the late 1700s and that the few remaining Oneidas were fully assimilated into the white culture surrounding them.  Counties Brief, 2010 WL 4973153 at *50.  However, this is a simplistic, ahistorical view.  The fact that these cessions were replete with unfair dealings and that the terms of the 1788 cession as written were considerably different than those Oneidas had actually agreed to should be part of any analysis of justifiable expectations. 

In short, either the Supreme Court should stop relying on presumed justifiable expectations of non-Indians in analyses of whether reservations have been diminished or disestablished and in analyses of tribal jurisdiction over non-members or it should begin the hard work of undertaking a deep, historical analysis of such expectations—and their justifiability—on both sides.  It is long overdue to include tribal expectations in that analysis. 

Marriage & Polyamory

Interesting survey results on polyamorists' interest in marriage were recently published on Loving More's website.  As background, conservatives who oppose marriage equality have been making slippery slope arguments for years about the purported danger of legally sanctioning same-sex marriage and a resulting inability to distinguish plural marriage.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting).  In response, as I noted in my article Polyamory as a Sexual Orientation, some marriage equality proponents have tried to distance themselves from polyamory and have sometimes cast aspersions on it.  79 U. Cin. L. Rev. 1461, 1484 (2011).  However, polyamorists themselves face considerable discrimination and appear to be deserving of legal protections, although there is uncertainty about whether and what types of protections they want.  79 U. Cin. L. Rev. at 1513-14.  Hadar Aviram's research on the Bay Area poly community suggested that that community at least did not want to advocate for poly marriage, partly out of fear of taking away steam from the marriage equality movement.  Hadar Aviram, Make Love, Not Law: Perceptions of the Marriage Equality Struggle Among Polyamorous Activists, 7 J. Bisexuality 261, 264 (2008).  This new survey data, however, shows that a significant majority of Loving More's national respondents (65.9%) would take advantage of plural marriage if legally available, although, interestingly, an almost equal--but slightly larger--percentage (66.9%) think that no relationship structure "deserves special recognition."   Thus, there seems to be a preference for disestablishment of rules privileging certain relationships, perhaps along the line of Nancy Polikoff's work, coupled with a practical willingness to marry if the option were available. 

Windsor Same-Sex Marriage Aftermath: Everyone Just Sue the Bastards

In 2004, after Massachusetts became the first state in the country to allow same-sex marriage, the ACLU distributed a memo warning people against bringing new same-sex marriage litigation.  It was titled "Don't Just Sue the Bastards."

As you can see if you follow the link, the memo argues that mid-2004 was not the right time for everyone to go into court making claims of marriage equality. The memo raises three reasons: 1) the risk of losing cases; 2) the risk of setbacks longterm; and 3) the less-than-certain odds at the Supreme Court.  The memo is a great snapshot in time in the movement for marriage equality, and  I love teaching it for the interesting issues of social movement strategy and legal ethics that it raises.

But, that's a discussion for another time.  In the wake of last week's decision in Windsor, I'm thinking of this memo again but in a different way -- that the best move forward for marriage equality at this point would be the complete opposite strategy.  Thus, the title of this post - Everyone Just Sue the Bastards.

Let me make this clear - I am in no way currently connected to any of the groups strategizing or litigating this issue.  I am, however, a long-standing and huge proponent of marriage equality, and after Windsor, I think every gay or lesbian couple who wants to get married should file federal lawsuit in every state that doesn't allow gay marriage.  Let a thousand (or tens of thousand) lawsuits bloom!

The upsides are obvious.  I'll break them out here:

Windsor: Windsor has excellent language about equality and the importance of marriage.  The language is preceded by Justice Kennedy's usual homage to federalism, but the part of the opinion about equality and marriage does most of the work.  Any lawyer worth his or her salt will be able to use that language to make the previously-very-strong constitutional argument for same-sex marriage even stronger.

Easy work: And that work isn't going to be that hard.  Beyond adding Windsor into the mix, the legal arguments are already very well developed and briefed.  Every lawyer taking a same-sex marriage case need only look to the excellent briefing in the Supreme Court (by the parties and some of the amici) to make the strongest arguments possible for same-sex marriage.  No one has to reinvent the wheel here.  They just have to add the language from Windsor and the pleadings are taken care of.  Certainly there will be more state-specific work, but so much is already done.

Back to the Supremes in a better posture: Bringing thousands of cases in states that prohibit same-sex marriage AND have government officials who will defend the cases will avoid the Perry problem.  Perry, as we all know, was a missed opportunity to get the Supreme Court to announce equality for all.  Other cases without the procedural issues from that case are needed, so litigants need to sue for a license in the 37 states that still prohibit same-sex marriage to get a case working its way to the Supreme Court.  And given Windsor, it's very likely a proper case before the Court would win.

Lower court wins: Along the way, litigants may just win.  As we saw in Perry, district courts and circuit courts might decide that the Constitution protects a right to same-sex marriage.  More winning decisions in federal court will certainly help the cause.

Expensive for discriminating states:  More litigation will also force states that continue their discriminatory practices to spend money to defend them.  They want to continue to have a policy of inequality?  Make it expensive.  Make them defend hundreds of lawsuits in different district courts across the state.  Even if the cases are consolidated, they'll be expensive for the state to defend against all the parties throughout every stage of litigation.

Keeping the issue alive:  Same-sex marriage is a on a roll.  Windsor and the reinstatement of marriage in California come on the heels of the electoral victories in November 2012 (Washington, Maryland, Maine, Minnesota) and the legislative victories in early 2013 (Colorado, Delaware).  More cases bubbling up to the Supreme Court will keep the issue alive and in the news.  A massive wave of cases would do that even more so.

More stupid defenses of the law:  I have yet to see a well-reasoned defense of marriage inequality, but forcing states to defend these laws will undoubtedly bring out all different qualities of defense.  There will certainly be non-offensive statements that are within the realm of reasonable debate, but there will also just as certainly, as we saw with many of the amicus briefing in the Supreme Court, be the absurd, offensive, and downright ludicrous.  (Think, in a different realm, about "legitimate rape," women "shut[ting] that whole thing down," masturbating fetuses, and rape kits that allow women to "get cleaned out.")  These comments will help move the needle even further toward equality.

Are there downsides?  Sure.  Nothing's without downsides.  But, compared to 2004, we're in a different place.  In 2004, the ACLU was concerned about having losing cases on the books.  They were concerned what that would do longterm.  Well, we know the answer now.  The highest courts in Washington, Maryland, and New York all rejected marriage equality claims.  Yet, all three of those states have since changed to a system of marriage equality.  There are losing cases on the books from other states too, such as in Arizona state court and Nevada federal court, but that didn't stop the Supreme Court from coming out the right way in Windsor.  These cases also haven't stopped popular opinion from shifting dramatically in favor of equality on this issue.  In other words, we've had the losses, but the movement is continuing full-steam ahead.

What about the risk in the Supreme Court?  As I wrote above, after Windsor, it's hard to argue that the Court will issue a ruling against same-sex marriage.  Maybe they aren't ready to rule for same-sex marriage, as we saw in Perry, but a ruling against same-sex marriage seems out of the question.  And any case started now will take at least a couple of years to get to the Court, by which time Windsor will have sunk in and the world will not have imploded, popular opinion will continue to change in favor of equality, and maybe the Court personnel might change for the better too.  The last is certainly a wildcard, but the other two are not.

Finally, maybe it's time to turn attention away from marriage and to other goals of the movement for LGBT equality.  There has certainly been a lot of criticism of all the money and effort that has been expended toward the claimed assimilationist goal of marriage and not to, what some feel are more pressing, the concerns of employment discrimination, hate crimes, poverty, transgender rights, and more.  While I agree these are all important goals, I think you can fight multiple things at once.  And if it really is about fighting one issue at a time, it wouldn't make sense to stop climbing K-2 three-quarters to the top to then start climbing Everest.

Bottom line here is that the downsides from 2004 are much less now than they might have been then.  The remaining 37 states need to feel the pressure, and thousands of litigants can keep that pressure on.  The time is now.

Everyone just sue the bastards.

Where Are the Liberal Justices on Gay Rights?

In re-reading the marriage cases this afternoon, something struck me: where are the liberals?

There are six opinions in the two cases.  Justices Kennedy wrote the majority opinion in Windsor, with Chief Justice Roberts and Justices Scalia and Alito writing dissents.  Chief Justice Roberts wrote the majority opinion in Perry with Justice Kennedy writing the dissent.

The four liberals joined Justice Kennedy in Windsor but each was silent about their own thoughts.  Three of the liberals joined Chief Justice Roberts in Perry (Breyer, Ginsburg, and Kagan).  Justice Sotomayor joined Justice Kennedy's dissent.  Each was silent about their own thoughts on this case as well.

Why does this matter?  Presumably, at least one of these four has some view of the Constitution that endorses a more robust view of gay rights than Justice Kennedy.  Kennedy has certainly been a proponent of gay rights, but not in a way that has changed the level of scrutiny and put discrimination based on sexual orientation on par with discrimination based on sex or race, a central cause in current-day LGBT advocacy.  In fact, Kennedy hasn't ever been really clear about how exactly he is analyzing discrimination against gays and lesbians.  His opinions are full of lifting rhetoric, but are short on clear analysis that helps future litigants and judges.

Without any of the liberals writing separately, we don't have any official statement in the Supreme Court Reporter from any Justice arguing that sexual orientation discrimination in all of its forms is odious to the Constitution.  We don't have any Justice with a ringing endorsement of equality for LGBT people.  We don't have any Justice making the strong case for marriage equality.

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today's concurring opinions often becomes the logic in tomorrow's majority opinion.

What's even more troubling about this is that this appears to be a trend.  In its history, the Court has issued four decisions advancing the cause of gay rights -- Windsor today striking down DOMA, Perry today rejecting the appeal of the decision finding Prop 8 unconstitutional (I'll give the Court the benefit of the doubt here by calling Perry a case advancing gay rights), Lawrence 10 years ago rejecting Texas's sodomy statute, and Romer 17 years ago finding Colorado's Amendment 2 unconstitutional.

Combined in those cases there have been 12 separate opinions.  Not a single one was written by anyone to the left of Justice Sandra Day O'Connor.  (Kennedy has written 4 times, Scalia 3 times, O'Connor 2 times, and Thomas, Alito, and Roberts each 1 time.)

Of course, when it comes down to it, the liberals on the Court owe the public nothing other than their votes.  In that regard, this current batch of liberal Justices has reliably voted for gay rights since 1996, and that should be celebrated.

But, it really would be wonderful if one of them had stepped up with a resounding call for gay equality in any one of these cases.  Instead, all we get from them is silence.

Making Gay Marriage Pay: Pondering Economic Effects of U.S. v. Windsor

One of the interesting questions coming out of the Supreme Court's decision today in United States v. Windsor is whether states allowing gay marriage will reap an economic benefit for their local economies.  That is, how much additional Federal money will flow to those states as a result of having more married people?

This issue is similar to the question of how state decisions to adopt Obamacare Medicaid expansion will affect state economies.  A state that extends Medicaid will get 100% Federal coverage of that expansion initially, with 90% Federal subsidy after several years.  As anyone with a 401(k) knows, you say yes to the 100% employer contribution and  you stand on your head to find a way to accept the 90% employer contribution that requires a 10% match.  For a huge state like Florida or Pennsylvania, loss of the Federal match will amount to billions of dollars in lost investment in the state's medical industry.

My question is whether a state's decision to prohibit gay marriage will mean revenue loss to the state.  The most obvious site for this would be lost Social Security dollars if, for example, a surviving spouse would have received additional money.  I don't know if states banning gay marriage might miss out on Federal money in other ways as well.  

I'm guessing  the decision will have an impact on the tax revenue side as well - the marriage tax and all that. 

My colleague Norman Stein indicates that this decision will have significant impact on ERISA-related pension and benefit issues...everything from death benefits to tax protection ERISA-covered health care plans.  And it's hardly just a prospective matter: the issue of retroactivity of the decision may end up being a huge, financially consequential battle.  What about a person who died last month while legally married to their same-sex spouse?  Does that spouse benefit from Windsor?

For activists, Windsor may be a civil rights decision.  For lawyers in the trenches, however, it's also a trove of important legal issues just waiting to be litigated.

Justice Alito And The 3/256

In today's decision, Adoptive Couple v. Baby Girl, the Supreme Court held that the Indian Child Welfare Act did not apply to the particular facts of a case where a biological father sought to block adoption of his daughter.  The dad is a member of the Cherokee Nation and there was no dispute that the child he had with a non-Indian mother was nonetheless subject to the the ICWA.  But I sensed that it  irked Justice Alito that the child was  subject to a law designed to protect the Native American community because on two occasions in the opinion he noted that the little girl was  3/256th Cherokee - notwithstanding the fact that this detailed fact added nothing to the opinion.

(Justice Sotomayor, in her dissent, noted these mentions, saying  "the majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intima­tion that the statute may violate the Equal Protection Clause as applied here.")

Perhaps Alito was being strategic, thinking references to fractional human identity would trigger bad memories of the Three Fifths Compromise.  Or maybe it was just him being churlish, in the same way he apparently behaves when certain liberal Justices read their decisions or dissents in open court.

Maryland v. King, Low-Stringency DNA Database Searches, and the Case for a Universal Database

Disclaimer: I’m not a Fourth Amendment person. Rather, my interest in King is in its implications for policies for the use of DNA in the criminal justice system. I spent the better part of a year after my Ph.D and before beginning law school helping to research and edit a book on DNA and the criminal justice system and co-authoring its final chapter with the book's editor, David Lazer. Although that was ten years ago now, most of the major policy issues in this area have not much changed over the last decade. So, with that caveat, and an invitation to readers to point out anything I say that is out of date or otherwise inaccurate, here are a few quick thoughts on King.

The majority and dissenting opinions spill most of their respective ink taking contrary positions on the primary purpose served by collecting DNA from arrestees. The majority somehow manages to argue with a straight face that the primary purpose (and indeed, to guess from its analysis, apparently the only purpose) of collecting DNA from arrestees is to identify the body of the arrested individual sitting in the booking room. As Justice Scalia wrote in dissent, this claim by the Court “taxes the credulity of the credulous” (slip op. dissent at 1). The clear primary purpose and actual use of statutes authorizing the routine collection of DNA from arrestees is to solve other cases than the one “at bar,” if you will, in the booking room.

One might have thought that the Court went out of its way to avoid finding that the primary purpose of the DNA collection at issue is “to detect evidence of ordinary criminal wrongdoing,” (Indianapolis v. Edmond, 531 U. S. 32, 38 (2000), in order to avail itself of the "special needs" exception to the Fourth Amendment's usual requirement that searches be conducted pursuant to individualized suspicion. But no. The Court ultimately concludes that the special needs cases “do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy” (slip op. at 25). In upholding the state’s power to collect DNA from arrestees, then, the Court relied on — along with the minimally intrusive nature of the search — the arrestee’s reduced expectation of privacy. Indeed, the Court deemed the latter feature “fundamental” to its analysis (id. at 24).

Consider, then, that no such reduced expectation of privacy can be attributed to an even larger class of individuals who are indirectly included in DNA offender databases: the relatives of arrestees (and others who are directly included in offender databases).

Adoptive Couple v. Baby Girl, Oral Argument Discussion

While I try to not to just cross-post, since I've been writing so much about this case, I did want to point to an unusually long and detailed post we've been working on since the release of the transcript of this morning's oral arguments.

An excerpt on the federal government's flaw in its brief and oral arguments:

Perhaps because of its commitment to preserving the OSG’s reputation for objectivity, the federal government was of little help to tribal interests. The SG’s admittedly confusing position of claiming 1912(d) applies (what we know as active efforts, what Blatt characterized as an “exhaustion obligation” (page 8, line 11) and what Justice Kagan called the “curing provision” (page 58, line 14)), but 1912(f) does not (the heightened standard for termination of parental rights), the government may have done more harm than good. In fact, the interpretation about how ICWA is a balancing statute between two sovereigns, the state and the tribe may not be all that persuasive to the Court. This line of argument may be the deciding factor for the case. In a vast majority of cases, a child would not be in the custody of her parents when there is a termination of parental rights hearing. In an abuse and neglect case (which this is not), the child would have been removed, and the court would make the determination about “continued custody” while the child was in foster or family care — not, generally, while the child was in the actual physical custody of the parent. To interpret 1912(f) otherwise eliminates the provision for virtually all parents under ICWA.

 

Other links:

SCOTUSblog

Matthew Fletcher's Stat Read-through

 

Media, ICWA, and the Baby Girl Case

Next week, the Supreme Court will hear oral arguments in the Adoptive Couple v. Baby Girl case. This is only the second time since the passage of ICWA that the Court will hear a case involving the statute. The case is drawing intense media attention, and has since its arrival in the South Carolina Supreme Court. Today Andrew Cohen posted his piece at the Atlantic, one of the few mainstream media outlets to give a balanced view of the case and a defense of the law at the heart of the case.

Very briefly, the case involves the child of a non-Indian mother and a father who is a citizen of the Cherokee Nation. As in almost all family law cases, there are various disputed facts about the involvement of the father in the mother's life after he found out the mother was pregnant. It bears noting again the trial court found the mother's testimony less compelling than the father's, and found for the father, as did the South Carolina Supreme Court. Father (while the names of all the parties are very easily ascertained, I prefer not to the publicize the name of the 3 year-old child at the center of this dispute) was serving at Fort Sill when he found out the mother was pregnant. He wanted to get married, she did not. When asked to surrender his parental rights, he believed he was surrending the rights to the mother, not to give up his daughter for adoption. When he found out his parental rights were being terminated for adoption purposes, he contacted his attorney on the base and started the legal process to get his child back. Days later he was deployed to Iraq for a year. Upon his return, he continued to fight the legal battle and the courts returned his child to him just after Christmas, 2011.

I've been asked repeatedly why the Court took the case, what caught the Court's eye, what I think will happen. I honestly don't know. I will say that the posture of the case--the tribal interest/father winning in state court and appealled up by the non-Indian party--fits Prof. Matthew Fletcher's analysis of the cert process for tribal interests these days. His work demonstrates that when a tribe wins below, the Supreme Court is more likely to take notice of the case.

While some are worried that the Adoptive Couple's aggressive use of the media in this case attracted the Court's attention. The more I think about this, the more I don't think this is the situation. The briefs of the Adoptive Couple and the Guardian ad Litem attack the very foundation of federal Indian law, claiming applying the Indian Child Welfare Act in this case is a prohibited race based use of the law (impermissable preferences). There is also a question of the use of state law to define terms in the federal statute (federalism concerns). Cohen's article details these claims, and shines a welcome light on the horrible role of the guardian ad litem in this case. Those concerns, plus the posture of the case, led to Court taking the case.

The amicus briefs on the side of the father, including 18 state attorneys general, the Solicitor General, and child welfare agencies and non-profits, are incredibly strong. And when we talk to child welfare professionals at the state and county level about the requirements of ICWA, the responses are almost always along the lines of surprise--that the law is really a best practices statute, and the practices it guarantees for American Indian children are practies our family law courts should aspire to for all children.