Brandeis University Law Journal Vol. 4

The Brandeis University Law Journal is now accepting submissions for its next issue.
The Journal welcomes pieces, preferably formatted according to The Bluebook: A Uniform System of Citation, that are written by the undergraduates, graduates, faculty, staff, and alumni of Brandeis University; contact submissions@brandeislawjournal.com. For subscriptions information, contact subscriptions@brandeislawjournal.com. Readers are notified to notify the Chief Copy Editor, at copyeditor@brandeislawjournal.com, of any typographical or other oversights in this print.
Copyright 2013 by the Brandeis University Law Journal Association All rights Reserved No part of this publication may be reproduced in any form except for brief extracts for scholarly or critical purposes or for the purpose of review, without the prior written permission of the authorized individual or individuals of the Brandeis University Law Journal Association. Contact info@brandeislawjournal.com.
Printed in the United States of America
Content written in 2012. Edited and printed in 2013. The contents of this publication do not necessarily reflect the views or stances of the Brandeis University Law Journal Association, nor of Brandeis University, nor of any individuals or groups that may be associated with either institution.
BRANDEIS UNIVERSITY LAW JOURNAL
[Vol. 4
E CONOMIC L AW & B ANKING REGULATION : L OOKING B ACK , M OVING FORWARD

Uri Yahil*
In the wake of the 2008 financial crisis, the issue of bank oversight has become extremely divisive, with the opinions of experts and laypeople alike varying wildly across the political spectrum. This article explores the question of whether it is possible to achieve an efficient mix of regulation and free market principles. It first discusses how economic law informs our understanding of how to correct market failures and describes the reactionary nature of Depression-era reforms. Finally, it describes the ebb and flow of regulation in the modern era. The article concludes that government regulation is largely unhelpful if consumers lack an understanding of what kinds of bank behaviors can negatively impact their lives in the long run.
I. INTRODUCTION
ince the Subprime Mortgage Crisis of 2008, the call for greater oversight of banks and bank holding companies has never seemed greater. Economists of various political perspectives have acknowledged a strong relationship between the current economic recession in the United States and the excessive speculation of banks and bank holding companies. However, there are those who take this analysis one step further, arguing that the actions and decisions of banks were to be expected; they merely took advantage of an inherently dysfunctional system. While there is no common consensus on how best to address systemic risk (some go so far as to blame capitalism in its entirety), many economists agree that the problem could be mitigated by stronger government regulation of the financial sector. This claim is gaining popular support, as imagery of Wall Street fat cats and the one percent spurs the regulation movement onward. Indeed, it would not be
*
Undergraduate at Brandeis University, Class of 2014.
2013]
Economic Law & Banking Regulation
difficult to find plenty of U.S. citizens who at least partially blame banks for the current economic downturn. Even so, casting blame and proposing solutions are not one and the same, and many who are quick to point the finger are also the first to admit they have no idea how to realistically draft and implement the laws necessary to avert similar situations in the future. Finance is a veritable rabbit hole, and the opaqueness of the transactions involved has undeniably contributed to the litany of conspiracy theories surrounding the industry. The question thus becomes twofold: should we regulate the financial sector, and if so, how do we regulate it? The answers to these questions will illuminate how influencing the consumer decisions of ordinary people may be the only viable means of obtaining a safer financial industry. Government regulation does not seem promising in theory and in practice.
II. ECONOMICS AND THE LAW: IN THEORY AND IN PRACTICE

Before one can make a reasonable case for how to draft and implement laws regarding banking, some consideration of the broader category of economic law should be discussed. This includes defining both the concept of economic law, as well as the meaning of economic. Such a task is undeniably daunting, and in and of itself could constitute the focus of an entire paper. Thus, while acknowledging that the interpretation is debatable, this paper will consider the economic in somewhat Marxian terms - as the recurrent relationships and interdependencies over the course of production, distribution and exchange of goods and services within human society. 1 Economic law is thus the rules and obligations, both customary and explicit, which preside over the economic functions within a given society. This definition will focus the discussion primarily on the execution of law in a specific subset of economic relationships. It will also allow us to focus on the theory of law that explains financial laws existence and implementation
1 KARL MARX, DAS KAPITAL: A CRITIQUE OF POLITICAL ECONOMY (Friedrich Engels et al. eds., 1st ed., Gateway Publishers 1965) (1867).
[Vol. 4
to begin with; chiefly the economic theory of law. The former constitutes the practice of economic laws while the latter identifies the theory used to suggest those laws in the first place. These two focuses will inform the practicality of legislating new banking laws and help make the case that government regulation may not be as efficacious as it seems. The economic theory of law is most often cited, though not always wittingly, when advocating for or against particular economic legislation. It has at its core two fundamental and highly related components. The two general principles are inverses of each other: one is that the law is best interpreted as a means of promoting economic efficiency, and the other is that economic efficiency should be used as canon for legal practice. Proponents of this philosophy often argue that the paradigm of justice is the contract freely entered into, thus, law should be seen as a method of optimizing contractual arrangements. 2 This analysis of law interprets distinct legal issues as ultimately having economic aims, and arguably gives the law a more concrete methodology than other theories can provide. 3 Some even argue that law is fundamentally better able to resolve conflict according to efficiency, rather than justice, because an efficiency-based legal system would be less vulnerable to structural incompetence within courts. This argument has its own critics, who dismiss the notion that all circumstances can be reduced to simple economic equations, and doubt that the pursuit of efficiency would be any less subjective in practice than the pursuit of justice. In addition, it is argued that many principles of economic law, such as the enforcement of property rights, are not of sole economic origin; rather, they are argued to be aspects of natural law that are necessary for the just organization of an advanced society. Despite the debate, which often concerns itself mostly with semantics, it is evident that some economic principles are often applied by jurists in their writings and have been known to permeate into legal statutes.
2 The Economic Analysis of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Aug. 12, 2011), http://plato.stanford.edu/archives/fall2011/entries/legal-econanalysis. 3 RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1st ed. 1973).
2013]
Regardless of whether economics should be used to model the law, the law has been used in two fundamentally economic ways: to codify customary economic interactions and prohibit economically disruptive practices. The first of these applications can be seen in various aspects of the legal world. Tort law, for example, is deeply rooted in customary economic interaction. Tort law attempts to protect individuals from duplicitous business transactions and provides legal remedy to those who, lacking recourse to an official judiciary or arbitration, would have resorted to unwholesome methods of obtaining compensation. The principle there is timeless; if you cheat me, Ill get my moneys worth one way or another. For the purpose of creating a more civilized, harmonious community, these laws were established to provide people with compensation without needing to resort to violence or theft. Similarly, the collateralization of debt obligations can be viewed as a customary practice, used since time immemorial to assuage the fears of otherwise reticent lenders. However, regulatory practice such as that in the banking sector falls largely into the second category: law that is designed to prevent harmful business practices that might otherwise occur naturally. Such laws are put in place when there may not be a readily available custom to guide our legal structure. Throughout history, financial regulation has largely taken this form. There is no custom that warns us, for example, against proprietary trading; there is only a controversial historical record and the equally controversial interpretation of that record by legal and economic experts. As is wont of academia, the experts are prone to disagree, often for ideological reasons. Whether a practice is considered economically disruptive lies heavily in the eye of the beholder. When it comes to the prohibitive aspect of economic law, its development in the American capitalist system has been caught in the eternal lovers quarrel between the market and the State. Agents of the market have been known to criticize the States jurisdiction of the economic realm, especially when the issues have involved labor laws or capital management requirements. Like Moses coming down from Mount Sinai, they carry the commandments of economics and ordain, Let the market reign
10
[Vol. 4
supreme! However, these same actors are quick to go mewling to the courts for intervention to enforce good economic laws, such as those that enforce contractual agreements and protect intellectual property. The point here is not to ridicule the capitalist, who wishes only to devoutly practice his profit-maximizing principle, but to illustrate that government oversight of the economy is not ubiquitous. It is generally assumed that government regulation, especially that of a prohibitive nature, is only necessary and prudent where there are negative externalities; costs borne on society that are not borne mostly by either of the parties specifically involved in a given transaction. In the case of intellectual property rights, the argument goes that if there were no laws protecting intellectual property and an individuals right to profit thereof, the negative externality would be a lower incentive to invent new goods or services and thus a loss of innovation within the marketplace. When there are externalities that are unaccounted for, there is said to be market failure. According to many schools of economics, it is only when the market is experiencing such a failure that government intervention is justified. The legitimate exercise of government authority in this situation is explained through the prohibitive economic theory of law, which justifies government intervention for the purpose of preventing market failure, so as to promote the primary goal of economic efficiency. Such an interpretation is prone to two major complicating factors. The first problem is a quantitative one and the second is a qualitative one. The quantitative problem should receive attention first as it is perhaps more obvious. Given that a regulatory institution identifies an externality contributing to a market failure, how does it go about assigning a price tag to the externality? If a factory is contributing to water pollution in its production of pharmaceuticals, how would a government committee decide objectively how much the owners of the factory should pay in damages to individuals who use the polluted water but do not consume pharmaceuticals? When an investment bank misrepresents the riskiness of the assets underlying a security, it creates a market failure wherein the price of the assets is said to be
2013]
11
artificial. In a sense, the bank is polluting the economic environment, keeping the prices of its assets lower than they would be under normal market conditions and thus leading to a nonoptimal level of consumption of various securities. This activity is particularly problematic when the assets are subsequently used as collateral in debt obligations and can have a highly destabilizing effect on the economy. But if the State demands compensation from the bank for producing this negative externality, how does it decide the dollar value of market stability? It should go without saying that there are numerous philosophical problems with placing a dollar value on societys financial health and safety. These problems impede the States ability to find a compromise between the agents within the market who are causing the externality and the individuals outside of the market who are suffering from it. It may ultimately be simplest to prohibit the externality-producing transaction altogether, though this may not be socially optimal either. The second problem, the qualitative one, is significantly more contentious. The problem is that what may be a negative situation for one individual can in fact be quite positive for another. Take for instance the issue of health care in the United States. The increasing cost of health insurance and the decreasing amount of coverage has numerous negative externalities, most significantly the inability of low-income individuals to financially endure serious health problems and the social stratification that ensues as a result. On the other hand, for an insurance company, higher premiums and lower coverage means more profit. This profit can be used to expand the business. Hypothetically, it might create jobs and foster investment in the community, a positive externality. For these companies, the logical conclusion is that premiums should be higher and coverage lower, so as to fully realize these gains. Similarly, the inconvenient truth is that investment banks misrepresented the risks in their securities prior to the financial crisis because doing so made credit cheaper and more available to fund projects. The take away is that most market interactions can be viewed as having both positive and negative externalities, and since the quantitative problem makes simple cost-benefit analysis
12
[Vol. 4
almost impossible, any State intervention must qualitatively decide which is the more legitimate. When one additionally considers the resource advantage that one group might have over another and how those resources can be used to influence politics, it becomes evident why this poses a serious problem. Market failure is a largely subjective notion, and policies that fail the majority of people can be quite beneficial for those with the political power to help define them.
III. THE GREAT DEPRESSION AND BANK REGULATION: THEN AND NOW
Returning to the issue of banks and their regulation, it is important to stress once more that there is not a solid foundation of customary interaction with which to shape regulatory laws. Although it is true that there was once a time in human history where the simple act of charging interest on a loan was considered vile and immoral (usury), such perception has long been outdated, though strands of it still remain in certain religious denominations. These days, charging interest is considered standard practice when issuing a loan. Economic theory has mustered numerous arguments to explain why usury is in fact beneficial to our economy, ranging from more straightforward, commonsense arguments to highly sophisticated deductions that largely abstract from reality. Regardless, it is still a widely held ethical and practical notion that individuals and institutions should not set loan interest rates in an unreasonable or predatory way. Understanding what makes a loan potentially predatory, however, is not common knowledge. When one further considers the milieu in which banks operate, new financial innovations brought on by computational software, and the abundance of credit and liquidity transformations that banks engage in beyond the simple act of taking deposits and issuing loans, it becomes even clearer that economic law pertaining to banks and bank holding companies cannot reasonably rely on custom. Instead, it must depend primarily on intellectual reasoning and academic consensus, or expert opinion.
2013]
13
However, as was stated earlier, relying on the wisdom of experts to determine where or how legal policy should be implemented poses its own problems, such as the aforementioned qualitative and quantitative ones. There are additional difficulties associated with the fundamental nature of the scientific method of inquiry - the need for observations and a systematic way to test ones hypothesis. The obstacles associated with the scientific method diminish the chance that the market failure will even be identified to begin with, at least before it has been able to significantly influence economic conditions. The scientific method necessitates systematic empirical observation or experimentation to present an objectively compelling argument for or against policy. However, policies are typically enacted in reaction to a disastrous event, rather than formulated before the event has occurred. For example, the U.S. government enacted the regulatory provisions establishing the FDIC during the bank failures of the Great Depression. It is hard to imagine that it would have had the foresight to do so during the 1920s when the economy was doing well. Thus we find that when the State cannot create economic law based on custom, economic law becomes largely reactionary. Given some calamitous sequence of events, regulation is imposed to reconstruct what was damaged and to help avoid future disaster. Yet there are problems with waiting for calamity to strike in order to offer scientifically backed policy recommendations. One can only speculate how many jobs would be lost and public services dismantled while the economists collect their data points. Even worse, periods of unusual economic stability may cause selective amnesia, where the purpose of particular regulation becomes less clear and the public quickly forgets why it existed to begin with. Coupled with the concerted effort on the part of the finance industry to induce and promote this selective amnesia wherever it may help restore the legality of certain profit-seeking behaviors, we find ourselves with one of the major problems facing bank regulation today. However, the debates raging within political and academic circles today have pre-existing data points; their roots are
14
[Vol. 4
in the legacy of the Great Depression. This legacy must be addressed before going any further. During the 1930s, the United States, as well as the majority of the world, experienced a severe economic contraction, commonly known as the Great Depression. Policy advocates in Washington, D.C. struggled to understand precisely what was happening to the economy. According to orthodox economic theory, what was happening should not have been possible; how could it be that industry was grinding to a halt yet thousands of unemployed people were eagerly searching for work? The legacy of the Great Depression sent fissures throughout the field of economics and is in no small part responsible for the litany of schools and theories that prevail within academic circles today. While there were still debates over what exactly would best address the situation, there was some consensus regarding one thing; the role of financial intermediaries within the economy was highly underestimated and in sore need of reevaluation by the public sector. This prompted new regulation, and although many policies regarding the functions of banks emerged during this time period, the most notable and frequently discussed today is the Glass-Steagall Act, also known as the Banking Act of 1933. The Glass-Steagall Act was originally part of President Roosevelts New Deal and was enacted as a response to the bank failures rippling through the country during the Great Depression. Among its many provisions, it tasked the Federal Reserve with greater regulation of banks and created the FDIC to insure bank deposits with a sum of money sequestered from those very same banks. Perhaps most significantly, the law also prohibited commercial banks from engaging in investment business. 4 Why this was the most significant element of the Glass-Steagall Act is not obvious; at face value there is no intuitive reason to believe that a financial institution holding public deposits should not engage in investment banking, especially when these practices often lower the cost of credit in the economy by diffusing risk and
4 Glass-Steagall Act (1933), N.Y. TIMES (Apr. 13, 2013), http://topics.nytimes.com/topics/reference/timestopics/subjects/g/glass_steagall_act_1933/index.htm l?offset=0&s=newest.
2013]
15
thus keeping premiums down. However, a lack of separation between commercial and investment banking is one of the most financially disruptive situations an economy can find itself in, especially when little regulatory oversight exists. This is because it skews the incentives of deposit-holding institutions such that the most profit can be made when loans, safe or not, are originated, packaged and gambled on in the world of investment. To understand this, one must first understand what it means for a bank to securitize its assets. Beginning sometime in the early 1900s, commercial banks began creating security affiliates, or divisions dedicated to managing the new and growing securities market. Banks came to the realization that the profitability of lending was largely constrained by access to capital and the size of their balance sheets. Thus began a shift away from lending and holding loans and toward the magnificent innovation of securitization - originating loans, packaging them and selling them to investors, typically through investment banks (Petroff, 2010).5 The expansion of banks into security underwriting continued until the infamous stock market crash of 1929. Many economists believe that the activities of these security affiliates created artificial market conditions and that the prices of the securities did not reflect their true value; the assets underlying the security were far riskier than they appeared. Economists such as Hyman Minsky have argued that this contributed to excessive issuing of credit and the accumulation of a private debt bubble, with the whole structure of the investment strategy largely resembling a pyramid scheme.6 With the value of these assets inextricably linked together (what is referred to as contagion), failure to respond to this debt bubble and the debt deflation that followed instigated the conditions that culminated in the Great Depression.
Eric Petroff, The Rise and Fall of the Shadow Banking System, INVESTOPEDIA (Oct. 11, 2010), http://www.investopedia.com/articles/economics/10/shadow-banking-system.asp. 6 HYMAN P. MINSKY, THE FINANCIAL INSTABILITY HYPOTHESIS (Social Science Electronic Publishing, Inc. 2013) (1992).
16
[Vol. 4
The result of numerous bank failures was that public confidence in the financial system reached an all-time low.7 GlassSteagall was largely interpreted as a means of restoring public confidence by ensuring that banks had to follow safe practices. This required forcing the separation of commercial and investment banks by preventing commercial banks from underwriting private securities, although they could still underwrite U.S. Treasury and federal agency securities as well as municipal or state generalobligation securities. Conversely, investment banks were prohibited from receiving deposits, a practice reserved for commercial banks. There were also regulatory mechanisms put in place to monitor bank health, such as capital and liquidity requirements, reserve ratios, and general transparency requirements regarding day-to-day activities. However, the separation of commercial and investment banking was by far the most significant intervention on the part of the federal government to prevent such a catastrophic market failure from reoccurring.
IV. THE FREE-MARKET HYPOTHESIS: WHY PEOPLE ARE MORE IMPORTANT THAN DODD-FRANK
Glass-Steagalls primary directive of restoring public confidence worked, but perhaps a bit too well. Some economic historians came to believe that commercial bank security practices during the 1900s did not in fact influence the already-troubled U.S. economy, and they used various macroeconomic models (such as the monetarist one) to demonstrate why.8 This school of economic thinking instead blamed the Federal Reserve for what it did and did not do, gaining momentum as the scars of the Great Depression began to fade. Many economists came to believe that GlassSteagall was never necessary to begin with, and this idea permeated intellectual culture, largely supported by a financial industry eager to see the restrictive laws repealed so business could return to being unregulated.
Glass-Steagall Act, supra note 4. MILTON FRIEDMAN & ANNA JACOBSON SCHWARTZ, A MONETARY HISTORY OF THE UNITED STATES, 1867-1960 (Princeton University Press 1971).
7 8
2013]
17
Congress ultimately succumbed to the influence of the alliance between finance and academia and in 1999 passed the GrammLeach-Bliley Act (GLB). While the new act did not make any significant changes in the types of transactions and practices banks, brokers or insurance companies could engage in, it repealed GlassSteagalls restrictions on bank and securities firm relationships, opening the door once more for the integration of commercial and investment banking. The act also amended the Bank Holding Company Act to allow greater mobility among financial services companies with regard to their affiliations with one another. The objective of the act was to modernize the financial sector, and it was justified with the usual economic jargon (economies of scale, adverse selection, etc.).9 For the first time in almost seven decades, commercial banks could return to the business of originating and securitizing loans. Barely one decade after that, the system collapsed yet again. Following the economic recession of 2008, the political right and left quickly formed camps regarding the repeal of GlassSteagalls separation clause. While the far left heavily attributed the subprime mortgage crisis 10 to the disintegration of this prohibitive law, the far right steadfastly held to the notion that GLB had nothing to do with the current economic crisis, and instead looked to other sources of blame. This debate has largely colored the current discussions regarding new banking regulation and the potential for new provisions that might curtail securities underwriting. This debate is about more than just one government act; at its core, it is a debate about the free market hypothesis. After all, to assert that the government must intervene and prevent certain kinds of transactions is to simultaneously assert that the financial market cannot be left to its own devices. This subtext has been inescapable in all serious discussions of new and improved banking regulation. For this reason, the repeal of Glass-Steagalls separation clause has caused a great deal of argument regarding its effect on the
Act, supra note 4. Ryan Barnes, The Fuel That Fed The Subprime Meltdown, INVESTOPEDIA (Feb. 26, 2009), http://www.investopedia.com/articles/07/subprime-overview.asp.
9 Glass-Steagall 10
18
[Vol. 4
current economic downturn. The controversy has been fueled by the polarizing nature of the debate. The argument has been largely characterized by one side claiming GLB is fully responsible for the current downturn, the other side claiming that it is not at all responsible, and a few people scattered in between who dejectedly suggest some middle ground. Essentially, the discussion has mutated into an argument over blame, where some have come out in condemnation of the banking sector while others have come out in support of it. Those who would condemn the banking sector are in essence rejecting the claim that those in support of it make: that an unregulated financial market is the most efficient. Bank supporters argue, for instance, that you cannot blame the banks for fraudulent loan originations because those were the fault of brokers. The counterargument is that this is an incomplete interpretation; you cannot solely blame the brokers, since they could not have funded the loans if banks had not been willingly buying their risky products. Another common argument is that since no big banks failed during the crisis, they could not have been the cause of the problem. Critics of this argument point out that the reason big banks did not fail was that they were bailed out by the government, and if they had not been bailed out they certainly would have failed as their balance sheets were inundated by bad loans and underwater home equity lines of credit. 11 Yet another common argument in favor of the banking sector places the blame on the failure of non-banks such Lehman Brothers and Bear Stearns (large financial institutions that do not fall under the legal definitions of a bank), none of which would have come under Glass-Steagalls restrictions to begin with. However, this conveniently ignores the fact that non-banks receive much of their funding from banks through mortgages, repurchase agreements and other extensions of credit. Without these credit channels, the nonbanks would not have been able to leverage themselves.12
James Rickards, Repeal of Glass-Steagall Caused the Financial Crisis, U.S. NEWS (Aug. 27, 2012), http://www.usnews.com/opinion/blogs/economic-intelligence/2012/08/27/repeal-of-glasssteagall-caused-the-financial-crisis. 12 Id.
11
2013]
19
In the wake of the 2008 financial crisis and the disagreements surrounding what to do about the banking sector, lawmakers hurried to draft legislation that would reign in the economic collapse and hopefully address the main concerns about its cause. The result was the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, an 8,800-page law that expanded the role of government to oversee various components of the finance sector, including areas such as insurance, and even the purchase of debit cards. 13 Unfortunately, greater government control over certain financial sectors may not be in practice the panacea it seems to be in theory. According to a new book produced by the Mercatus Center of George Mason University, titled Dodd-Frank: What It Does and Why Its Flawed, Dodd-Frank may in fact be unintentionally encouraging many of the market failures it was drafted to avoid. One of the books primary concerns is that DoddFrank seems complacent about the fact that some companies are large enough (and their activities thus inextricably woven throughout the economy) that their collapse would cause cataclysmic contagion throughout the entire financial sector. The book asserts that Dodd-Frank addresses this by legislating regulatory overreach that ensures government protection for the too big to fail category of businesses. If an institution is designated as systemically important, it is anticipated that, in the event of mismanagement, the institution will be rescued. This encourages negligence and risk-taking on the part of the financial industry, which is ultimately gambling with taxpayer money. The negative externality produced by excessive risk mismanagement is thus left almost entirely unaddressed by the law. According to Hester Peirce, a senior research fellow at the Mercatus Center, Dodd-Frank is overly intricate, and may produce inconsistency in many industries. Peirce maintains that Congress was more concerned with doing something rather than doing something right.14 Part of the problem is that Dodd-Frank created new regulatory agencies like the Bureau of Consumer Financial
13 Carten Cordell, Will Dodd-Frank Trigger a New Financial Crisis?, REASON.COM (Jan. 13, 2013), http://reason.com/archives/2013/01/13/will-dodd-frank-trigger-a-new-financial. 14 Id.
20
[Vol. 4
Protection and expanded the role of existing ones like the Securities and Exchange Commission, but never clearly delineated the rules these agencies were to actually enforce. Another issue is that while Dodd-Frank may be responsible for many new financial regulations, the law does not address the housing industry, which played a prominent role in the financial crisis. Ultimately, the biggest criticism of Dodd-Frank is that it does little more than place confidence in and grants power to the Federal Reserve to identify and appropriately address the natural risk of failure within the marketplace, without actually prohibiting most of the risky behaviors in the first place. The language of the document is such that it does little to calm those with fears of another financial crisis. Many of the instances where one would see the term risk used in reference to securing financial stability are preceded by an affirmation of one institution or anothers responsibility to supervise, analyze and make recommendations on said risk. The act goes to great lengths to establish a Financial Stability Oversight Council, and examines a compendium of circumstances under which this council should make policy prescriptions. Just as in the UN General Assembly, there is a big difference between making recommendations and having the power to enforce them. The Oversight Council has no such authority, and indeed was never intended to; it is little more than another regulatory agency that has little enforcing power. Instead, the authority to take decisive action was imparted on the Board of Governors of the Federal Reserve. In Section 121 of the legislation, the Board of Governors, in relation to a potential threat to financial stability brought about by a bank holding company with consolidated assets of $50 billion or more, is granted the authority to (1) limit the ability of the company to merge with, acquire, consolidate with, or otherwise become affiliated with another company; (2) restrict the ability of the company to offer a financial product or products; (3) require the company to terminate one or more activities; (4) impose conditions on the manner in which the company conducts one or more
2013]
21
activities among other regulatory provisions.15 The catch is that there are no clearly delineated practices that compel the Board to take these actions. In addition, any action requires that the Board has had an affirmative vote of no less than 2/3 of the voting members of the Council. That there are no automatic safeguards or explicitly prohibited behavior is more of a concern for some than others. One would need to be profoundly cynical to assert that the Federal Reserve will choose when and how to apply its regulatory powers so as to best benefit Wall Street. However, one does not have to be as cynical to believe that certain dispositions may influence the consistency with which the Board exercises its authority. It should not be overlooked that a lack of prohibitory laws in the aftermath of the most significant financial meltdown since the Great Depression (which was responded to with prohibitions) is an unsettling notion. Dodd-Franks expansion of government oversight does little to ameliorate these concerns, especially when one further considers the percentage of former bankers working as key officials at regulatory institutions and vice versa. The emerging picture is not exactly an optimistic one. The historical record seems to indicate that economic law is largely reactionary, looking to build smoke detectors in a house already on fire. This suggests that some of the most effective regulation may be counter-cyclical. That is, regulation should be more stringent when things are actually going well. Unfortunately, this is largely contrary to human nature, which can be overly optimistic when it comes to market conditions and often assumes naively that upward trends can continue indefinitely into the future. The second problem is that even if it could be agreed upon that new regulation is required, the drafting of that regulation becomes muddled by partisan goals and ambitions. The banking sector has armies of scholars at its disposal to provide the intellectual edifice upon which its lobby for deregulation can stand, while the public that is affected by their practices has comparatively little academic support, save for a few non-profit research institutions not funded
15
DoddFrank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173).
22
[Vol. 4
by corporations. While the arguments of these corporate-backed scholars are not intrinsically wrong, they are grossly overrepresented in the political mainstream. The fact remains that finance constitutes an ever-increasing proportion of the American economy, and the resulting concentration of wealth leads to an enormous concentration of political power. With little to no custom upon which to base regulatory practices, our society is forced to rely on the discourse between experts, but the significant imbalance of resources means this dialogue does not occur on an even playing field. Another problem is the public. The new regulations and protections of the 1930s were not put into place out of generosity; they were borne out of a real fear that unless public confidence in the financial sector could be restored, the masses of unemployed and disgruntled people could constitute a significant political and social movement. The business sector understood that the ramifications of such a movement could be much more harmful to their balance sheets than the concessions made in Glass-Steagall. Today, despite a few popular movements, 16 public sentiment is nowhere near as radical as it was in the 1930s, and the aforementioned existential threat to the financial industry is largely nonexistent. Given the revolving door career trajectory of many politicians, it is unlikely that they will act counter to the interests of what may very well be their future employers without serious public pressure. So long as the situation remains this way, regulation of the banking sector is a pipe dream - difficult both in theory and in practice, and unlikely to generate real change. For now, the solution is to accept that there is enough blame to go around; borrowers were reckless, investors were complacent and the Federal Reserve encouraged the situation with practically unlimited lines of credit. Good economic laws can be put in place, such as the provisions of Glass-Steagall that separated commercial and
The Occupy Wall Street movement has been the most prolific in recent news, and although this movement has been effective in bringing the issue of economic inequality front and center, the disjointed organization of the movement has thus far seemed to limit the efficacy with which it has influenced the current political scene. Time will tell how this develops.
16
2013]
23
investment banking. However, one cannot turn a blind eye once the system begins to improve and suddenly deem the laws unnecessary or outdated. Bona fide regulation of the financial sector must be carried on the back of an educated public that understands the importance of reigning in financial speculation and uses this understanding to put pressure on the government to implement regulation where it is lacking and leave it be where it is currently serving a purpose. Governments can regulate banks, but if democratic governments are truly an emanation of public will, the push to regulate must first and foremost exist within the public. In essence, laws pertaining to finance must transcend the realm of complex prohibitory policies based on expert opinion and enter the domain of customary economic interactions readily accessible to the average individual. This is no small measure, and most likely cannot be achieved before a radical shift in consumer consciousness occurs, with a new focus on long-term sustainability over short-term profit, and a rejection of complacency even when the economic situation seems promising. Only then can public oversight of finance be meaningfully obtained. What the source of this shift in consciousness will be is outside the realm of this discussion, but given the current trajectory of U.S. financial law, the sooner our society embraces such a shift, the sooner consumers will demand smarter economic choices and prevent the next financial meltdown.
24
[Vol. 4
FISHER V . UNIVERSITY OF T EXAS : T HE FUTURE OF R ACE -C ONSCIOUS A DMISSIONS POLICIES

Matt Houser*
The case of Fisher v. University of Texas points to the restless debate concerning the constitutionality of race-conscious admissions programs for institutions of higher education. While colleges and universities have strived to increase minority enrollment over the past half century, opponents of race-conscious admissions policies argue that the use of race in admissions policies violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Opponents of raceconscious admissions policies contend that non-minority students are treated unequally due to their race because the racial considerations made by admissions officers favor minority applicants. This problem lies at the center of the Fisher case, which brings into question the legitimacy of affirmative action in the admissions programs of public colleges and universities. In spite of the numerous pleas from individuals and organizations throughout the nation to prolong the use of raceconscious admissions programs, recent deliberations suggest that the impending decision of the Supreme Court may very well lead to the permanent removal of affirmative action in public institutions. As a result, college campuses may see a large decline in the number of minority individuals enrolled in undergraduate and even graduate institu1 tions. This feature examines the legal rationale advanced by the University of Texas in justifying their need for a race-conscious admissions program and explains why colleges and universities are currently permitted to utilize racial considerations in attaining a meaningful representationor critical massof minority individuals within their student bodies.
* 1
Undergraduate at Brandeis University, Class of 2013. Adam Liptak, College Diversity Nears Its Last Stand, N.Y. TIMES, Oct. 16, 2011, at SR4.
2013]
Fisher v. University of Texas
25
I. INTRODUCTION
n 2008, Abigail Fisher applied to the undergraduate program at the University of Texas at Austin.2 To her dismay, she was denied admission to the institution. Fisher soon filed suit against the university, claiming that UTs race-conscious admissions policy violated her constitutional right to equal protection under the law guaranteed by the Fourteenth Amendment to the Constitution. Fishers lawyers argued both in the District Court and Fifth Circuit Court of Appeals that her constitutional right to equal treatment was violated by the universitys race conscious admissions program, which takes race into consideration when evaluating an individuals application. Fisher firmly believes that her chances of gaining entry into the institution were diminished significantly and unfairly because minority applicants were favored in the application process. Fisher contends that the University of Texas discriminated against her on the basis of her race by favoring applicants who, aside from their status as members of an underrepresented racial group, were less qualified than her for admission into UTs incoming undergraduate class. However, neither the District Court nor the Fifth Circuit Court of Appeals agreed with Fishers claim that she would have undoubtedly gained admission to UT had the university not used a race-conscious admissions program. 3 Although the plaintiff presented notable credentials (a reputable GPA of 3.59 and a sound SAT score of 1180), the prestigious university received a large number of strong applications that year. This stifling competition made it far more difficult for applicants of her status to gain admission to the university. Moreover, many applicants who held GPAs comparable to Fishers and were members of an underrepresented minority group were still denied admission to UT that year.4 These
2 Adam Liptak, Race and College Admissions, Facing a New Test by Justices , N.Y. TIMES, Oct. 9, 2012, at A1. 3 Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011). 4 Nikole Hannah-Jones, A Colorblind Constitution: What Abigail Fishers Affirmative Action Case Is Really About, PROPUBLICA (Mar. 18, 2013), http://www.propublica.org/article/a-colorblindconstitution-what-abigail-fishers-affirmative-action-case-is-r.
26
[Vol. 4
circumstances made it unclear that Ms. Fisher was certain to be accepted had it not been for UTs race-conscious admissions program. After receiving unfavorable rulings both in the District Court and Fifth Circuit Court of Appeals hearings, Fisher filed a petition for Writ of Certiorari with the Supreme Court on September 15th, 2011. 5 The Supreme Court eventually granted her petition and agreed to make a decision on the case this year. While Fisher was unsuccessful in proving that her application was harmed by UTs race-conscious admission policy, her efforts nonetheless raised concerns about the constitutionality of UTs race-conscious admissions program. These concerns shared by court officials and citizens alike became especially apparent during the oral arguments before the Court on October 10, 2012. During the oral arguments, the justices fervently questioned the University of Texas explanation for implementing a raceconscious admissions practice.6 It was in 2004 that the University of Texas at Austin submitted its proposal to the Board of Regents of the University of Texas System for instituting racial considerations within the admissions process of its various undergraduate and graduate programs. After reviewing minority enrollment figures as well as conducting several studies, the university articulated in its proposal that the student body lacked a sufficient level of minority representation within their undergraduate and graduate classes.7 Some members of the Supreme Court, however, seemed puzzled by the universitys demand for increasing minority enrollment. The University of Texas claimed in its 2004 proposal that a critical mass of minority students did not exist in its undergraduate classrooms. According to UTs 2004 proposal, a critical mass is an adequate representation of minority students that ensures the edu5 Miriam Rozen, Cert petition filed in University of Texas affirmative-action case, TEXAS LAWYER BLOG (Sep. 21, 2011), http://texaslawyer.typepad.com/texas_lawyer_blog/2011/09/cert-petitionfiled-in-university-of-texas-affirmative-action-case.html. 6 Transcript of Oral Arguments, Fisher v. University of Texas at Austin, No. 11-345 (2012). 7 UT Austin, Proposal to Consider Race and Ethnicity in Admissions, June 25 2004, http://www.utexas.edu/student/admissions/about/admission_proposal.pdf.
2013]
27
cational benefits of a diverse student body. In the past several decades, courts have ruled that the use of racial considerations within an admissions process is constitutional so long as they were necessary to achieve the compelling interest of diversity.8 In Grutter v. Bollinger, former Supreme Court Justice Sandra Day O Connor explained that achieving diversity is a compelling government interest because of the educational benefits that arise from a diverse student body. According to Justice OConnor, the eradication of racial stereotypes and the preparation of students for civic engagement are among these educational benefits. In this decision, Justice OConner placed immeasurable value on the inclusion of a sufficient minority population within the student body of an academic institution. Referring to the Grutter ruling, the University of Texas argued that a race-conscious admissions program was necessary for achieving the compelling interest of attaining diversity. Given their collective studies and findings, UT was convinced that it had yet to attain a critical mass of underrepresented minority students within its undergraduate classrooms. However, various Justices were notably concerned about the Universitys interest in fulfilling its critical mass requirement, as UT failed to articulate exactly what constitutes a critical mass. Justice Roberts, for one, asked UTs counsel how many African American and Hispanic students were necessary for achieving a critical mass. Justices Alito and Kennedy also framed similar questions, asking how many students of each underrepresented minority group were essential for fulfilling the universitys objective. Gregory G. Garre, who spoke on behalf of the University, refused to define the universitys critical mass objective in terms of the number of minority students enrolled. When asked by Justice Roberts and other members of the court about how many students of each race should be enrolled in the institution, Mr. Garre consistently replied that the University of Texas has no fixed number or
8 Grutter v. Bollinger, THE OYEZ PROJECT, 2009/2002/2002_02_241 (last visited April 18, 2013).
http://www.oyez.org/cases/2000-
28
[Vol. 4
percentage of students required for fulfilling its critical mass objective. Nevertheless, several of the Justices were very adamant about learning from Mr. Garre exactly when a university has achieved a critical mass of underrepresented minority students. Chief Justice Roberts emphasized to Mr. Garre that all race-based admissions policies must have a logical endpoint as articulated by Justice Connor in Grutter. Within their discussion arises an important point about the correlation between the number of underrepresented minority students enrolled within an institution and the benefits due to a diverse student body. Moreover, the critical mass notion utilized in UTs 2004 proposal sparks a lengthy inquiry as to how the determination can be made as to when a university has finally enrolled a sufficient number of underrepresented minority students within the institution. Understanding why these concerns are relevant to the Fisher case becomes highly useful in understanding the controversy associated with race-conscious admissions. It can be argued that the legal rationale articulated by the University of Texas in its 2004 proposal may require further revision in the future so as to completely eradicate the possibility of applicants being adversely affected due to their race. An assessment of this dilemma will involve a review of the significant details pertaining to UTs 2004 proposal. Following this review will be an examination of the judicial standards used to evaluate race-conscious admissions programs, paying close attention to the University of Michigan Law Schools notion of critical mass in Grutter v. Bollinger.9 Comparing the Grutter decision with the Fisher case, the feature will end with a speculative but nonetheless careful contemplation of the Fisher case.
II. UTS 2004 ADMISSION POLICY

In 2004, The University of Texas at Austin submitted a proposal to the Texas Board of Regents for implementing a new ad9
Grutter v. Bollinger, 539 U.S. 306 (2003).
2013]
29
mission practice. The University expressed within the proposal that it was crucial to implement the practice of race-consciousness in the admissions process of its various undergraduate and graduate programs. It was soon after the University gained permission to adopt its proposed modifications that the changes were hastily made to the admissions process. In the 2004 proposal, the University argued for the necessity of permitting its admissions personnel to consider the race of an applicant as a factor in the admissions decision. This conclusion was reached after reviewing student enrollment figures as well as conducting several studies that revealed a lack of minority students enrolled in the institution. The proposal cites a number of statistics regarding the enrollment of minority students. It notes that in undergraduate courses in 2002, approximately seventy percent of classes had either one or zero African American students enrolled. In addition, forty-five percent of undergraduate classes had only one or zero Hispanic students enrolled. UT found these statistics to be of great concern given its past efforts to increase minority enrollment. Since 1996, the University adopted a number of race-neutral initiatives to significantly increase minority enrollment. It was in the same year that the Supreme Court made a ruling that struck down the use of race-based criteria in admissions decisions at UTs Law School.10 Given the Courts criticism of UTs Law School admissions policy, the university sought other means for increasing minority enrollment without using racial considerations in admissions decisions. Unlike race-conscious admissions programs, a race-neutral initiative attempts to raise the number of underrepresented minorities within an institution without using specifically racial considerations. Whereas a race-conscious admissions program may consider a students race as a factor in their application, race-neutral methods refrain entirely from taking race into account and instead rely on other factors and circumstances for increasing minority enrollment figures.
10
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
30
[Vol. 4
A personal achievement index, for example, was used by the University to identify quality students whose accomplishments or merits might not have been accurately reflected by their class rank and SAT scores. For any students who fell short of being admitted because of their SAT scores or GPA, the personal achievement index would take into consideration other important factors regarding a students characteristics or accomplishments, such as their socioeconomic background or family history. These factors would be examined in two essays completed by the applicants, and trained admissions personnel were instructed as to how these essays should rank based on the personal achievement index. The University also instituted race-neutral programs that included a scholarship fund as well as a unique policy created by the Texas Legislature known as the Top Ten Percent Rule. The rule was enacted in 1997 as a part of Texas House Bill 588 and was intended to increase minority enrollment without resorting to racial considerations in the admissions process. These race neutral programs brought about vast improvements in the years following their implementation. Seventy-seven percent of the Universitys African American students and seventy-eight percent of its Hispanic students gained entry into the undergraduate program due to the Top Ten Percent Rule. The University has received hefty praise for its efforts, with a notable magazine devoted to diversity in higher education ranking the establishment as sixth in producing degrees for minority students.11 In spite of the notable contributions of the race-neutral alternatives, the Universitys studies on minority enrollment still indicated a lack of a meaningful minority presence within undergraduate classes. As mentioned, UT explained in its proposal that either one or zero African American and Hispanic students were present on average in many of the schools undergraduate courses. During the same period, another study was conducted in which a number of students were surveyed on their impression of the Uni11
VERSE: ISSUES IN HIGHER EDUC., Jun.
Victor M.H. Borden, Top 100 Undergraduate Degree Producers: Interpreting the Data, DI12, 2008.
2013]
31
versitys diversity both inside and outside of the classroom. A number of minority students reported that they felt isolated in the classroom. A majority of students further expressed the opinion that the existing minority presence was not sufficient to achieve the benefits of a diverse campus. The surveys not only indicated a widespread belief that there was a lack of diversity on campus but also the social isolation faced by minority students. Taking these circumstances into account, the University argued that racial diversity within the classroom was an essential component in accomplishing its academic mission. That is to say, the University aimed to educate its students to become the future leaders of a diverse Texas population. Especially in a vastly growing population of multicultural workers, the University must prepare its students to be the leaders of Texas by engaging them in classroom contact with peers of differing racial, ethnic, and social backgrounds. By doing so, students not only benefit from the robust exchange of ideas and spirited discussion, but also learn how to engage with a diverse population. The University of Texas found the implementation of a raceconscious admissions program to be imperative in obtaining a racially diverse student campus. When the University submitted its proposal, its argument for increasing minority representation rested utterly on their proper use of the standards set out in Grutter v. Bollinger. The Grutter case assumes an indispensable role in the Fisher case, for it advanced a legal rationale permitting colleges or universities to increase minority representation. Essentially, it allowed higher education institutions to seek a critical mass of underrepresented minority students so as to achieve the benefits of racial diversity.12 This notion follows from what is commonly referred to as the diversity rationale, which prescribes that the use of race is constitutional so long as necessary for achieving the compelling state interest of diversity.13 As mentioned, courts have gradually found the benefits of a diverse student body to be well
OCONNOR, supra note 9. Mitchell J. Chang, Reconsidering the Diversity Rationale, LIBERAL EDUCATION (2005), http://www.aacu.org/liberaleducation/le-wi05/le-wi05feature1.cfm.
13 12
32
[Vol. 4
worth pursuing. In Grutter, racial diversity became intertwined with these supposed benefits, with Justice Connor spending a portion of the majority opinion expounding on what benefits a racially diverse student campus offers academic institutions. Yet the use of racial considerations in admissions at higher education institutions faces the highest standard of judicial examination. Also known as strict scrutiny, the source of tensions facing judges and legal experts in their review of the Fisher case rests predominantly on the challenge of determining the constitutionality of UTs race-conscious policies within this particular legal scope. Comprehending the principles governing strict scrutiny will prove instrumental to providing a clearer picture of the obstacles facing the Court in determining if UTs policy is compatible with the Constitution.
III. STRICT SCRUTINY A. Purpose

In understanding how the strict scrutiny test applies to the Fisher case, we must first consider the reasons that courts find it necessary to apply this standard of judicial review. Let us recall that Abigail Fisher originally filed suit against the University of Texas for violating her constitutional right to equal treatment under the Fourteenth Amendment. Because of UTs race-conscious admissions program, she believed that her application was hampered by the fact that she was not a member of an underrepresented minority group and was therefore discriminated against on the basis of her race. It is due to these situations where individuals are possibly being treated differently because of their race that strict scrutiny finds a vital purpose within the judicial examination of race based admission policies. Courts rely on strict scrutiny in order to strike down as unconstitutional any illegitimate uses of race by an institution. An unfortunate yet nevertheless common occurrence in our nations history is the implementation of policies that erroneously discriminate against people because of their race. Regardless of the good inten-
2013]
33
tions the government or other institutions may have for enacting such kinds of legislation, the dire consequences posed by these laws and policies seem to largely outweigh their supposed benefits. The case of Brown v. Board of Education serves as a timeless example of how race-based policies can pose significant harm to the prosperity of others.14 The Supreme Court ruled in that case that state laws establishing different schools for black and white students were unconstitutional. But furthermore, the endorsement of segregation by the Board of Education was seen by critics as a form of unequal treatment preventing many students from attaining a quality education and, moreover, access to greater opportunities within their lives. Since the landmark decision of Brown v. Board of Education, courts have applied the strict scrutiny test to determine the legality of universities race-conscious admissions policies. Brown serves as a constant reminder of how the use of racial classifications by our academic institutions can seriously damage the chances of our youth to gain a quality education. As such, strict scrutiny assumes a pivotal role in securing the equitable treatment of students by our higher education establishments. Especially in the admission process, opponents of race-conscious admissions programs often contend that racial considerations increase the likelihood of students being unfairly denied access to a particular institution because of their race. Under the gaze of strict scrutiny, any racebased policy or measure which results in the wrongful treatment of applicants as envisioned by opponents of race-conscious admissions programs would surely be suspect.
B. Two-Prong Test
Strict scrutiny ensures the minimization of pervasive racial biases within the college admissions process by subjecting raceconscious admissions policies to a two-prong test. The first prong of strict scrutiny requires that the use of race must be necessary for achieving the compelling interest of diversity. As briefly mentioned, the University of Texas claimed within its proposal that it
14
Brown v. Board of Education, 347 U.S. 483 (1954).
34
[Vol. 4
was necessary to implement a race-conscious program to achieve the educational benefits of diversity. This argument first emerged in Regents of the University of California v. Bakke when Justice Powell delivered his opinion in the case disputing the affirmative action policy of the medical school at the University of California, Berkeley. Standing by his own unique view, Justice Powell concluded that attaining a diverse student body was the only legal justification for the schools consideration of race as a factor in a persons application. Along with attaining the compelling interest of diversity, strict scrutiny also mandates that the use of race by an academic institution be narrowly tailored. That is to say, a higher education institution must only rely on measures that are specifically and narrowly framed for achieving the educational benefits of a diverse student body. If a policy or initiative is not specifically designed to achieve a compelling state interest, then it fails to comply with the narrowly tailored prong of strict scrutiny. Furthermore, the use of race by an institution of higher education must also be the most restrictive means for achieving the desired ends of diversity. In Regents of the University of California v. Bakke, for example, the Supreme Court ruled that the Berkeley medical schools affirmative action policy was not narrowly tailored because it reserved a certain number of seats exclusively for African-American applicants.15 It stated that such racial measures are a distinct violation of the Constitution as they place an overt emphasis on a persons race instead of equal consideration of individual credentials. Furthermore, the allotment of spaces to a specific race would undoubtedly increase the chances of a (non-minority) person being denied entry simply because of his or her racial identity. Essentially, it ruled that any institution purporting to increase minority enrollment through racial quotas acts unconstitutionally by unjustly favoring people who belong to a distinct racial group. On the grounds of obtaining student diversity, Justice Powell suggested a way in which an institutions race-based policies may
15
Regents of the University of California v. Bakke, 483 U.S. 265 (1978).
2013]
35
be narrowly tailored. Justice Powell ordained in the Bakke case that an admissions program must holistically review an individual application. While Powell found the contribution of diversity to be substantial, he deemed race as only one of many factors contributing to the benefits of diversity, finding that admission programs must consider all of the applicants qualities and accomplishments denoting their potential contributions to the student body. Powell found that the only way racial considerations would survive the narrowly tailored prong of strict scrutiny was to impose a system that would eliminate the possibility of inequitable treatment. By holistically reviewing each application, race is only considered insofar as every other notable factor and, therefore, prevents admission personnel from unjustly favoring one person over the other because of their race.
IV. GRUTTER V. BOLLINGER

The Grutter decision reinforces and extends Bakkes diversity argument. Justice OConnor, who delivered the majority opinion of the court, further elaborated on the benefits derived from a diverse student campus. She describes how the benefits of diversity extend to the various aspects of civic engagement - so much, in fact, that racial diversity itself becomes an ends well worth pursuing. For this reason, she found the Law Schools interest in obtaining a critical mass of underrepresented minority students constitutional. As long as student applications were being holistically reviewed, Justice OConnor found it permissible for the law school to seek students who can improve racial diversity on campus. Yet the possibility remains that student applications being reviewed under the University of Michigan Law Schools plan were not narrowly tailored to achieve the compelling interest of diversity. While the Supreme Court ruled in favor of the Law Schools race-conscious admissions process, the Justices were largely divided in their opinions on the matter. Several of the Justices argued within their court opinions that the Law Schools admissions program was far from being specifically and narrowly designed to achieve the compelling interest of student diversity.
36
[Vol. 4
However, the critical mass objective as described by Michigans Law School in Grutter bears a close resemblance to a racial quota. Racial quotas most frequently occur in the college admissions process as an act of racial balancing in which a higher education institution may be accused of increasing minority representation so as to mirror their own state population, hence the charges put forth against the California Board of Regents in Bakke. Nevertheless, the Law School argued in court that its critical mass notion was devoid of any numerical criteria for how many minority students should be enrolled. Justice OConnor generally accepted the schools stance that its critical mass goal should be defined in reference to the educational benefits of diversity. If a meaningful representation of minority students is meant to provide the grounds upon which the benefits of diversity are to occur, then having a considerable portion of the student body being composed of underrepresented minorities would likely accomplish this goal. But we should remind ourselves that the critical mass notion cannot be defined by a fixed number or percentage of the student body. The Law School proceeded during their trial to validate their understanding of critical mass by attributing several underlying goals to their pursuit of a critical mass. These include the assurance that minority students do not feel isolated or feel like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. When the Law School fulfilled these objectives, then the critical mass standard would no longer be necessary. But by no means did the Grutter court fully agree with Justice OConnors opinion. The court split 5-4, and several of the Justices disagreed with the majority decision. Chief Justice Rehnquist, for one, exemplified the type of concerns surrounding the approval of the Law Schools admission policy. Contrary to the schools opinion, he believed that the critical mass concept was not narrowly tailored to achieve the benefits of diversity. There are two lines of explanation that are particularly notable in his argument. For one, the schools explanation of the goals underlying the critical mass standard is undeniably based on the size of the student body rela-
2013]
37
tive to the number of underrepresented minority students. The critical mass goal may not include a specific number of students, yet it would seem as if an academic institution would retain complete discretion over the number of students they considered to be representative of a critical mass.16 Justice Rehnquist further compounds his argument with his conclusion that the Law Schools admission policy does not actually ensure that a critical mass of underrepresented minority students will be enrolled. To him, the critical mass would have to be fulfilled by amassing a consistent representation of students from different, underrepresented minority. If a collection of African American students would suffice for a given institution, then it becomes natural to think that a similar representation of Hispanic or Native American students must also be apparent within a student body. The statistics demonstrate, however, that a number of students were chosen over those of another race within the admissions process. The concerns mentioned by Justice Rehnquist and Justice Kennedy certainly merit further attention given the nature of the Law Schools race conscious admission policy. In order for their admission process to be narrowly tailored, each and every applicant must be given individualized consideration in which race is equally considered amongst various other important factors. The possibility of this happening within the admission program of Grutter appears far less probable since the ends of a true critical mass of underrepresented minority students is not necessarily guaranteed. To be more specific, the law school never provided a plausible explanation for how their admission system guarantees that a critical mass of different underrepresented minority groups would be obtained on the basis of holistic review.
V. FISHER V. TEXAS
UTs 2004 proposal justifies its new admissions policies based on the diversity rationale advanced by Grutter. As such, the
16
OYEZ, supra note 8.
38
[Vol. 4
troubles associated with the critical mass notion in Grutter may also apply to the Fisher case, since at the forefront of the policys constitutionality lays the question of whether the methods to reach a critical mass are narrowly tailored. A key difference to note between the race-conscious admissions programs of the University of Michigan Law School and the University of Texas is that the latter places individualized consideration on an application if the applicants themselves do not qualify through their academic achievements. Michigans plan coordinated racial considerations alongside the review of a students academic accomplishments. It can be i nferred from this fact that the applicant pool in the Law School is less likely to be affected to the same extent as those applying to UT. On that note, the University of Texas had already implemented several race-neutral alternatives for increasing minority enrollment whereas Michigans method for achieving the same goal was always primarily dependent on an individualized review of each applicant. A matter sure to arise within the Supreme Courts impending decision entails the level of deference that higher education institutions are given in conducting their admissions programs. It was decided in Sweatt v. Painter that academic institutions retain a certain level of academic freedom in choosing who is allowed to attend.17 Justice Powell, in fact, grounded his rationale for achieving the compelling interest of diversity partly within the legal autonomy afforded to universities and colleges in their admission decisions. Having said that, Justice O Connor was fairly pleased with her assumption that the Law School made a determination that their use of racial considerations within their admission process was narrowly tailored on good faith. Nevertheless, the Supreme Court may find discomfort with applying the same level of judicial review to Fisher knowing that other means exist for increasing minority enrollment. Perhaps one of the greatest challenges facing the Supreme Court in making a decision on this case is deciding whether indivi17
Sweatt v. Painter, 339 U.S. 629 (1950).
2013]
39
dualized consideration of each applicant can be assured in light of an admissions program which consciously seeks to increase minority enrollment. Depending on the level of scrutiny with which the Court examines UTs admissions program, the critical mass standard may not be upheld. The Grutter decision demonstrates the level of subjectivity to which admissions programs are entitled in choosing students who can fulfill the critical mass goal. Yet the diversity rationale is not necessarily at odds with the critical mass standard. Granted, a small collection of states has begun to eliminate racial considerations altogether from the admissions process. This examination demonstrates that there are potentially grave flaws with the critical mass standard, but we have yet to truly deduce if racial considerations are entirely unconstitutional. For that matter, there may be ways of enlisting a critical mass of underrepresented minority students so long as a visible system exists that guarantees that all applicants are given individualized consideration. While certain legal critics have proposed modifying the critical mass standard, others have considered broadening the review of socioeconomic factors that can put into context the racial disparities continuing to undermine our Constitutional belief in a free and equal society. Either way, the critical mass notion as described in Grutter and later articulated UT in Fisher will further a perpetual discourse about the use of race-conscious admissions to achieve the heavily sought educational benefits occurring from a diverse student campus.
VI. UPDATE
On June 24, 2013, in a 7-1 decision, the Supreme Court made its ruling in Fisher v. University of Texas. Rather than issuing a ruling that addressed the constitutionality of race-conscious admissions programs, the Court vacated the Fifth Circuit's decision and remanded the case for further consideration. The Court found that the Fifth Circuit's decision was incorrect because it had failed to apply strict scrutiny in its analysis of UT's admissions program. Under Grutter, a reviewing court must apply strict scrutiny to any admissions program that uses racial classifications. Although a re-
40
[Vol. 4
viewing court may defer to a university's judgment that diversity is essential to its educational mission and therefore a compelling government interest, a reviewing court may not defer to a university's claim that its program is narrowly tailored. In order to satisfy the narrow-tailoring requirement of strict scrutiny, a university must demonstrate that its race-conscious admissions program is absolutely necessary for achieving its goal of diversity and that there are no less-restrictive means of accomplishing that goal. The university always bears the burden of proving that its program is narrowly tailored. In its decision, the Fifth Circuit did not closely examine UT's admissions policy to determine whether UT has sufficiently proven that its program is narrowly tailored. Instead, the Fifth Circuit deferred to UT's assertion that its use of race as an admissions factor is necessary and required Fisher to prove otherwise. Because the Fifth Circuit failed to apply the correct standard of judicial review to Fisher, the Supreme Court remanded the case back to the Fifth Circuit, instructing it to apply the standard of strict scrutiny to the case.18
18 Fisher v. University of Texas 570 U.S.__2013.
2013]
Special Examiner Process
41
22.6 T HE I NTRODUCTION OF THE S PECIAL E XAMINER PROCESS

Flora (Yuan) Wang*
Due to the increasing prevalence of sexual assault on college campuses across the country, the U.S. Department of Education (DOE) and its Office for Civil Rights (OCR) published a Dear Colleague Letter The letter was published in response to a report that found that one in five women are sexually assaulted in their college careers. In addition, the same report found that 6.1 percent of males were victims of sexual 1 assault to some degree. The letter informed college administrators of these alarming statistics and directed them to change their policies regarding sexual assault; the Brandeis University administration accordingly made appropriate changes in the university s Rights and Responsibilities handbook. Members of the Brandeis Law Journal sat down with Rick Sawyer, Vice President for Student Affairs and Dean of Student Life, and Dean Gendron, Director of Student Rights and Community Standards, to discuss these changes and what this new national standard means for Brandeis University.
iven that the university already has a Conduct Board that would regularly oversee these types of cases, it was curious to see that there was a major overhaul of the system to a single investigator model with a Brandeis-instituted Special Examiner. As Dean Gendron describes:
If you read the Dear Colleague letter it is clear the DOE [Department of Education] and OCR [Office of Civil Rights] are concerned about barriers to the reporter. When you read the letter and apply it to Brandeis Universitys context, the fact that there is a panel of five that are peers is a factor that was considered when moving to the single investigator model. Another major theme is to make sure that the playing field for both parties is equal.
Undergraduate at Brandeis University, Class of 2015. Russlynn Ali, Dear Colleague, Office for Civil Rights, United States Department of Education, (Apr. 4, 2011), http://www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf.
1
42
[Vol. 4
Dean Rick Sawyer further clarifies how this new system compares to its predecessor and shows confidence in both systems abilities to accomplish the overall goal.
The special examiner process is not a result of a failure on part of the board. In my thirty-seven years here there have been several issues relating to sexual misconduct on this campus. The Board in every one of those cases acted in a way that brought pride to us. The members are thorough, cogent, and intelligent by seeking facts and levying the appropriate response. This [new system] has nothing to do with the Board and rather [reflects a] new policy brought onto all universities which puts extraordinary emphasis on making changes that would minimize the number of people involved in such a case and using the term investigation in such a way that would push colleges to the single investigator model. There is no case that has brought us to this. We would be pleased to have these issues go to the Board.
Despite popular thought, the special examiner is not just one person hired to solely investigate sexual assault issues on campus. Rather this will be a role that qualified and trained individuals will take on when needed. The university is currently seeking to possibly train current staff or faculty to take on this role if they are interested. In addition, the university is also open to the idea of hiring someone from off campus to fill this role. According to Dean Rick Sawyer there are currently seven or eight staff members who have expressed interest and some training has begun. There are many potential traits that Brandeis would like special examiners to have, and Dean Gendron describes them as:
We were looking to people who are familiar with this Brandeis student culture and who have been here for a while and work with heavy student contact with [the] right intuitive personalities, skills, and experiences. These people are not uncomfortable being in a difficult conversation with students and others who can be serious minded and have [the] organizational skills to conduct an investigation.
With such a large change, it is clear that there will be advantages to having a system that is part of a national reform as well as having a more private procedure to handle such sensitive topics. Not only will this streamline the process but it is clear that with support from the federal government, there will be many schools collaborating and sharing information on what works and
2013]
43
what does not in order to incorporate necessary change. However, the system does also come with distinct disadvantages as Dean Rick Sawyer describes:
One disadvantage is that we have a hearing no matter the subject matter to have the experience. There is a lot of potential for development in the hearing. Another disadvantage I think is that although the topic is extraordinary it is still possible to have peer judgment in it. The special examiner process is not as clear as all the other work done with the Conduct Board.
Another disadvantage of the system is that it is clearly and surely moving away from the peer-judgment model that Brandeis University prides itself for having. Previously, the Student Conduct Board would be part of the process, but now the decision is largely contingent on the conclusions reached by the special examiner. Dean Rick Sawyer expounds on this further:
If I am encouraged at this moment to seek input, I would get students on the Board. If I can get some sense from the chairs or experienced members of the Board to listen to the story and key elements of the story and I can get peer review, I will seize upon it.
In addition to a change in how the process is undergone, the new special examiner policy also fundamentally changes the Rights and Responsibilities handbook at Brandeis University by moving sexual assault policy from Section 2, Respect for the Health, Safety, and Rights of the Community Members in the 2011-2012 edition to Sections 3 and 7 in the current 2012-2013 edition.23 In addition, there is an expanded Section 22.6 that explains in further detail how each part of the process would occur. Dean Gendron further explains this change:
There are some issues we dont have [a] choice in because of the sanctions in the university that are contingent on federal aid and grants in different department. So why Sections 3 and 7? The Dear Colleague letter does well to summarize the hierarchical issues of sexual assault. In terms of where those behaviors have been historically described in our code, Section 3 of Sexual Behavior is self-explanatory. Section 7 of Higher Ed describes many forms of harassment. We had a long
2 3
http://www.brandeis.edu/studentaffairs/srcs/rr/RR11.12.pdf http://www.brandeis.edu/studentaffairs/srcs/rr/Rights%20and%20Responsibilities%202012-13
44
[Vol. 4
conversation about whether the special examiner process is Title 9 only or if it goes broader or wider. There are a couple of factors including the external and internal energy around making a change kind of coalesce in the spring of last year. In order to honor our annual editing process to have it out by mid August, we wanted to not write from scratch but to see if any existing section could be used. Because 3 and 7 were foci, we started there. We talked about using Section 2 which discusses physical assaults, stalking behavior, harassment and more, [and] we made the decision on the notion that we did not want to jettison the Student Conduct Board docket. We talked for a while about adding 3 and 7 to the special examiner role, we were also considering chopping up Section 2 or creating a new section. We decided to draw the line knowing the code is a living document and we want to see what Brandeis thinks of it. Sections 3 and 7 are already more expansive than Title 9.
The expanded section of 22.6 is fundamentally different from previous systems since it undergoes a more formal process to include both sides in the adversary process. Not only will it allow the accused more time and access to information, it will also afford them an additional appeals process. Whether this system has been used thus far is confidential, but it will be interesting to see if it will improve on the previous system as it is applied to more cases of sexual assault on campus. The language of Section 22.6 is clearly inspired by the Dear Colleague letter, but as time goes and more revisions of the Rights and Responsibilities are published, it will be curious to see if it becomes a more uniquely Brandeis product. Dean Gendron has faith that it will continue to adapt to our campuss needs. The discussion ended by Dean Gendron commenting on student input regarding the future of the Rights and Responsibilities handbook:
This was not our preferred timeline in respect to writing the 22.6 language when a lot of the community was not there. We have been encouraging people to give us critical feedback. While we have been getting feedback, there have not been extreme comments. The town hall forum we had I thought would be more controversial. While there were good questions, but there were no follow-ups. In my opinion when we distribute the thousands of copies of Rights and Responsibilities, I would like to hear from the community. While we will always comply with local and state law, there has been a lot
2013]
45
codified and it may not feel Brandeisan but there is an angle in our methodology that might honor the spirit. We are willing to review and improve in each generation.
46
[Vol. 4
ACADEMIC F REEDOM , PREJUDICE , AND THE L IMITS OF L IBERTY

Jason Sugarman*
The concept of academic freedom is essential to the realm of academia in the United States, but its working definition is still somewhat ambiguous. This article traces the history of academic freedom and pinpoints essential discrepancies in the application of the device to both professors and universities. The application of academic freedom to the realm of prejudice specifically that of anti-Semitism and in preventing certain speech in the classroom is analyzed with recent case studies. The necessary limits of academic freedom are debated and the author questions how inclusive academic freedom ought to be. This article argues that academic freedom ought to be treated like a right protected by the First Amendment to the United States Constitution.
I. LEGAL ANALYSIS
or an educational institution, academic freedom is fundamental to creating an intellectually diverse and honest atmosphere. In 1915 the American Association of University Professors (AAUP) released a Declaration of Principles which, in part, outlined academic freedom and its importance in academia. It defined academic freedom as the freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action.1 In 1940, after a 1925 conference between the AAUP and Association of American Colleges (AAC) (now the Association of American Colleges and Universities), the two organizations released a statement with further detailed guidelines for academic freedom. These guidelines dictated what professors could teach, thus making a distinction
Undergraduate at Brandeis University, Class of 2013. Edwin R. A. Seligman et al., 1915 Declaration of Principles on Academic Freedom and Academic Tenure 170 (American Association of University Professors eds., 1915), available at http://www.aaup.org/report/1915-declaration-principles-academic-freedom-and-academic-tenure.
1
*
2013] Academic Freedom, Prejudice, and The Limits of Liberty
47
between the sorts of discussions that could occur inside and outside the classroom. Inside the classroom, the professor could present any viewpoint as long as it is related to the subject matter. 2 In addition, if the school wanted to censor what was to be taught in the classroom, then the institution must lay out its stipulations upon the hiring of that teacher.3 When speaking outside the classroom, however, professors were free from censorship as long as they were accurate, respectful, and made clear that they were not speaking on behalf of the university.4 These rules were relatively clear and seemed to leave the professor with a large amount of space for personal expression in and out of the classroom. Protection of the professor broadened in 1970, when these initial guidelines were revised. The alterations included clauses that elucidated that a professors opinion is not grounds for termination unless it proved the professor unfit to teach. The decision to release a professor also needed to take into account his or her entire academic record as a professor and researcher. This meant that a professor could violate the rules on academic freedom and still continue to teach as long as the individual was a leading scholar in the field. These guidelines do not seem to have a practical bearing on the legal right of academic freedom. The only court case that even mentions the AAUP guidelines is Urofsky v. Gilmore,5 where the court decided to lay out a history of academic freedom in its opinion. In this opinion, Justice Wilkins explained that the AAUP conceived academic freedom as a professional norm, not a legal one.6 This has created tremendous ambiguity as to the legal status of academic freedom. Is academic freedom a right protected by the First Amendment (similar to the right to privacy)? Or is it a philosophical theory with other value in society with no formal constitutional protection?
2 See 1940 Statement of Principles on academic freedom and Tenure (American Association of University Professors eds., 1915), available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm. 3 Id. 4 See id. at 3. 5 See, e.g., Urofsky v. Gilmore, 167 F.3d 191, 87 (4th Cir. 1999). 6 Id.
48
[Vol. 4
Before introducing the cases, it is imperative to recognize the difference in how academic freedom is applied to both public and private universities. There are three types of academic freedom cases: a claim of a professor against university colleagues (such as deans, trustees, and administrators), a claim of a professor against the state, and a claim of the university against the state. The only manner in which a case can be brought is if there is a state action involved, and therefore only the latter two claims are applicable to a private university. For a public university, a claim by a professor against other university employees involves state actions because everyone at the university is considered a state employee.7 The first case to touch upon academic freedom was Sweezy v. State of New Hampshire.8 When Professor Sweezy gave a lecture in which he stated that socialism was inevitable, the Attorney General of New Hampshire filed a petition for the professor to answer about his possible affiliations with the Communist Party. The professor refused to follow the Attorney Generals demand, and he was held in contempt. The Supreme Court held that Sweezys rights were safeguarded by the Bill of Rights and the Fourteenth Amendment. More specifically, it determined that his liberties in the areas of academic freedom and political expression,9 had been violated. This case makes clear that academic freedom is a liberty protected by the Bill of Rights (seemingly the First Amendment). In Parate v. Isibor, the Sixth Circuit Court clearly saw academic freedom as a First Amendment right when it ruled that Professor Natthu Parates First Amendment right to academic freedom was violated by the defendants when the Dean of Tennessee State University forced him to change a grade given to a student.10 Another Sixth Circuit case (Hetrick v. Martin) refers in a footnote to the First Amendments guarantee of academic freedom.11 From these cases it is clear that academic freedom is its own right, parallel to
7 See David M Rabban, A Functional Analysis of Individual and Institutional Academic Freedom Under the First Amendment, 53 Law & Comtemp. Probs. 227, 231 (1990). 8 Sweezy v. State of New Hampshire 354 U.S. 234 (1957). 9 Id. 10 See, e.g., Parate v. Isibor 868 F.2d 821 (1989). 11 Hetrick v. Martin 480 F.2d 705 (1973).
49
freedom of speech or freedom of religion, and it is protected by the First Amendment. It is apparent that academic freedom can be applied as a constitutional right, and it should be consistently treated as such. Yet, there are also cases, which, despite mentioning academic freedom as a value, deliberately use other constitutional rights to argue their decisions. These decisions seem to be based on the logic presented in a Second Circuit case, Gray v. Board of Higher Education, which explains that, academic freedom is a concept fashioned from other constitutional rights, including the First Amendment.12 This implies that academic freedom cases are only decided as a breach of the right of academic freedom when the action violates some other constitutional right. For example, in Epperson v. Arkansas,13 a teacher brought an action against the state school board that prohibited evolution from being taught in the classroom. This board was supposedly violating the First Amendment. The opinion of the Supreme Court mentioned that the state could not prohibit evolution from being taught because it violated academic freedom by cast[ing] a pall of orthodoxy over the classroom,14 a standard set in another academic freedom case (Keyishian v. Board of Regents). In its decision, however, the court used the Establishment Clause as the basis for its findings, not academic freedom; it claimed that the state violated the Establishment Clause by attempting to establish a religious doctrine by banning evolution.15 The decision of the court to use the Establishment Clause instead of academic freedom points to a weakness in the legitimacy of academic freedom as its own constitutional right. In an even more explicit manner, Judge Wilkins in a Fourth Circuit case, Urofsky v. Gilmore, explains that academic freedom is not a constitutional right but a professional norm.16 He explains that even though it is mentioned in Supreme Court cases, academic freedom is only mentioned in reference to
12 13 14 15 16
Gray v. Board of Higher Education 692 F.2d 901 (1982). See Epperson v. Arkansas 393 U.S. 97 (1968). See, e.g., Keyishian v. Board of Regents 385 U.S. 589 (1967). See Epperson v. Arkansas, supra note 13. See, e.g., Urofsky v. Gilmore 216 F.3d 401 (2000).
50
[Vol. 4
freedom of speech or freedom of expression cases and not as its own legitimate constitutional right. Judge Wilkins goes on to point out that, (as of the year 2000 when the case was decided) the Supreme Court has never set aside a state regulation on the basis that it infringed a First Amendment right to academic freedom.17 Additionally, in the 1991 case Bishop v. Aronov, the Eleventh Circuit Court explicitly stated that, we do not find support to conclude that academic freedom is an independent First Amendment right.18 Although one can argue from these cases that academic freedom is not its own right but a value that is grounded in other constitutional rights, these decisions are not contrary to the previous cases that designate academic freedom as a constitutional right. Although the judges chose to use different precedents and utilize other constitutional rights as the basis for their decisions, these rulings do not negate the precedent set out in Sweezy v. New Hampshire that determines academic freedom to be a constitutional right. The inconsistency in the court decisions regarding the constitutional status of academic freedom is exemplified in the case Stastny v. Central Washington University. In this case, the Judge of the Court of Appeals of Washington seemed to imply both that academic freedom is a right and not a right in two separate locations in the opinion. In one instance, he writes that, the right of academic freedom, like all other constitutional rights19 and equates academic freedom to all other constitutional rights, as if it was one itself. Later, however, he says that, Although academic freedom is not one of the enumerated rights of the First Amendment, the right to teach, inquire, evaluate and study is fundamental to a democratic society.20 In this case, the Judge explains that academic freedom is not an enumerated right but is a key component of democratic society. This judicial opinion is a perfect example of the issue with finding a legal
Id. See, e.g., Bishop v. Aronov 926 F.2d 1066 (1991). See e.g., Stastny v. Central Washington University, 647 P.2d 496, (Wash. Ct. App. 1982), cert. denied, 460 U.S. 1071 (1983). 20 Id.
17 18 19
51
understanding of academic freedom. It is not well defined and is interpreted differently by different courts. In a Second Circuit case (Burt v. Gates), the ambiguity with academic freedom is seen once again as the ideal is described as a constitutional interest at the heart of the First Amendment.21 This language is vague; academic freedom is important to the constitution and the First Amendment, but it is not necessarily protected by it. Regardless of the ambiguity, however, academic freedom can clearly be seen as a constitutional entity strongly relating to the First Amendment, and it must be protected as such. That being the case, academic freedom ought to be defined through the eyes of the court in order to understand and explore the standards judges have set for academic freedom. Although the courts are ambiguous about the status of academic freedom as a constitutional right, they do aid in crafting a definition of academic freedom. Firstly, they recognize and make a distinction between a professor and universitys right of academic freedom. In Regents of the University of Michigan v. Ewing, the Supreme Court elucidated that, [a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but alsoon autonomous decision making by the academy itself.22 Both of these dynamics are important for academic freedom to function properly. A professors academic freedom is understood to be integral to society and must be protected by the courts because, as Justice Warren dramatically explained in Keyishian v. Board of Regents:
To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to
21 22
Burt v. Gates, 502 F.3d 183 (2d Cir. 2007). Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985).
52
[Vol. 4
evaluate, to gain new maturity and understanding; otherwise our 23 civilization will stagnate and die.
The Sixth Circuit echoed this sentiment when it explained that the purpose of academic freedom is to preserve the free marketplace of ideas and protect an individual professors classroom method from arbitrary interference of university officials.24 The universitys right to academic freedom, categorized into the four essential freedoms of a university, 25 is defined by Justice Warren in Sweezy v. New Hampshire as the right to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.26 Interestingly, when these two freedoms clash, the freedoms of the institutions are viewed as the more important of the two. In Piarowski v. Illinois Community College the Seventh Circuit court ruled in favor of the academic institution by explaining that the right of the university to control its curriculum was more important than the professors freedom of expression.27 The Supreme Court created a balance of interests test in Pickering v. Board of Education to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.28 Usually, the interests of the employee (i.e. the university) override the interests of the individual. At the same time, however, in Keyishian v. Board of Regents, the Supreme Court made a pall of orthodoxy standard limiting the schools control over the curriculum, ruling that a school could not make rules that cast a pall of orthodoxy over the classroom,29 as mentioned previously. This standard simultaneously protects professors from university restrictions and universities from
23 24 25 26 27 28 29
See Epperson v. Arkansas, supra note 8. Parate v. Isibir, supra note 10. See Epperson v. Arkansas, supra note 13. Id. See Piarowski v. Illinois Community College, 759 F. 2d 625 - Court of Appeals, (7th Cir. 1985). Pickering v. Board of Education, 391 U.S. 563 (1968). See Keyishian v. Board of Regents, supra note 14.
53
government interference.30 Moreover, it sets a very high standard for what can be banned from a classroom. Based on this strong level of constitutional protection and the broad definition and pall of orthodoxy standard laid out by the court, a teachers spectrum of what can be said in the classroom seems almost limitless. As long as the teacher is presenting a theory or ideology that would add to the free marketplace of ideas, then the individual is protected to speak as he or she pleases. There are other standards, however, made to protect the special environment of the classroom that allow the abridgement of certain types of speech. In two cases concerning inappropriate language used in a classroom, Bonnell v. Lorenzo and Martin v. Parrish, the courts explained that there are special interests of the university at stake because of the unique environment a classroom provides. In Bonnell v. Lorenzo, the Sixth Circuit ruled that [w]hile a professors rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a students right to learn in a hostile-free environment.31 This case was in reference to sexual harassment; it can be argued, however, that any kind of speech that creates a hostile learning environment should and can be monitored by the university. In fact, the decision further claims that [s]peech that rises to the level of harassmentwhether based on sex, race, ethnicity, or other invidious premiseand which creates a hostile learning environment that ultimately thwarts the academic process, is speech that a learning institution has a strong interest in preventing.32 Furthermore, the classroom environment is special because the audience to which the professor is preaching is a captive audience33 and is therefore more vulnerable to the teachings. Because of this susceptibility, the teacher must more closely monitor his speech and how he or she presents any ideas. It can be further suggested that there are other restraints on freedom of speech, such as the falsity or reckless disregard for the
30 31 32 33
See Burt v. Gates, supra note 21. Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001). Id. See, e.g., Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986).
54
[Vol. 4
truth standard set in New York Times Co. v. Sullivan. Other examples include the standards for obscenity, libel or defamation, and fighting words; all of these restraints could possibly be used to combat claims of academic freedom in the classroom that are truly prejudiced. The pall of orthodoxy standard was used to allow evolution (Epperson v. Arkansas) and theories of communism (Keyishian v. Board of Regents) to be taught in the classroom; but it would not allow for theories of biological racial superiority or things of that nature in the classroom. In addition, it would doubtfully allow for breaches of the freedom of speech in the classroom. Although the window to combat prejudiced professors who hide behind academic freedom is small, it is still a viable option if one is to argue based on the violation of the parameters of freedom of speech and the lack of protection that academic freedom supplies beyond the pall of orthodoxy standard. II. CASE STUDIES: ANTI-ZIONISM AND ANTI-SEMITISM ON COLLEGE CAMPUSES
A. An Extracurricular ConferenceUniversity of Hastings, California College of the Law

In March of 2011, UC Hastings College of the Law hosted a two day conference titled Litigating Palestine: Can Courts Secure Palestinian Rights? The conference caused some concern by those who viewed it as unbalanced because the demonstration gave more time to one side of a controversial issue than the other. Many also felt that panelists harbored biases and did not necessarily speak objectively on issues. The concern was that, by sponsoring the program, the College of the Law was therefore endorsing the views of the organizers of the program.34 There can be no question that the participants in that program had the right to express their views, particularly since the program was not in a classroom setting. The issue is what role the Law School should
34 Emerging Anti-Israel Trends and Tactics on Campus, Anti-Defamation League, http://archive.adl.org/NR/exeres/9BD8ADB4-73EB-4AF8-96D5-81D22F8B1187,DB7611A202CD-43AF-8147-649E26813571,frameless.htm (last visited Apr. 11, 2013).
55
appropriately play. Should it sponsor the program? Should it provide the facility to house the program? Should it financially support the program? After considering the issue, the Law School released a statement the night before the conference saying,
BE IT RESOLVED by the Board of Directorsin its EMERGENCY CLOSED SESSION that it is in agreement that the College should take all steps necessary to remove the UC Hastings name and brand from the Litigating Palestine conference. By taking this action, the Board strongly endorses the principles of academic freedom and the process used to determine which conferences to present. It is the Boards position that a decision by the College to host or financially support an academic conference does not constitute endorsement of any viewpoints expressed at a conference, or the academic goals of the conference.
This was a significant moment because the University used its power of academic freedom to distance itself from what was perceived as a biased conference (whose organizers also had a claim to academic freedom). The question, however, remains as to how far the school could have gone to prevent this kind of conference in the first place. With regard to a conference hosted by a university, there is not much literature or many court cases to look to for precedent. Piarowski v. Illinois Community College, however, offers some interesting insight. The case involves the universitys demand of a professor to remove certain artwork from a public art exhibit in the college. One of the similarities between the two cases is the claim that the professor(s) have the right to display their opinions, either through an art exhibit or a conference, in a public university sponsored forum. In Piarowski, the court ruled in favor of the college because the teacher was employed by the institution; the PR (public relations) interests of the college to not display inappropriate artwork in their largest public gallery were greater than the individuals interests to display the artwork. The opinion stated, however, that, the colleges interest was not great enough to have justified forbidding Piarowski to display the windows anywhere on campus, but it may have been great enough to justify
56
[Vol. 4
ordering them moved to another gallery in the same building.35 We see from here, with regard to the UC Hastings Conference, that there would not have been grounds to stop the conference altogether. Yet, if the interests of the university were greater than the individuals interests, then the school did have the right to do the equivalent of relocating the artwork. Using the an alysis above it could be suggested that this may include allowing for the conference to remain on campus, but not advertising for it, not sending any of the administration to speak or introduce the conference, taking the universitys name off the conference, and possibly taking away university funding from the event. Yet, funding is a more difficult issue. If taking away funding is the equivalent of shutting down the conference then this action may not be warranted. In Piarowski, however, the university did not fund the professors artwork, meaning that Hastings didnt necessarily have to contribute funding to the conference, either. In two cases, Parate v. Isibor and Edwards v. California University of Pennsylvania, the decisions by the court make clear that an untenured professor does not have a right to teach a certain class, does not have the right to be free from the supervision of university officials,36 and does not have the right to decide what is taught in the classroom (this is the universitys decision).37 Although these cases discuss a classroom and not an extracurricular event, the idea that a university has the right to control its curriculum and the way in which it promotes its mission comes out strongly in these cases. Interestingly, these cases were both in public universities, but one could assume that the ruling would extend to private schools, as well. Additionally, according to the decision in Stastny v. Central Washington University, academic freedom does not encompass activities which are internally destructive to the proper function of the university or disruptive to the education process.38 If the UC Hastings College of the Law felt that the conference was not an event they wanted as
35 36 37 38
See Piarowski v. Illinois Community College, supra note 28. See Parate v. Isibir, supra note 10. See Edwards v. California University of Pennsylvania 156 F.3d 488 (3rd Cir. 1998). Stastny v. Central Washington University, supra note 19.
57
part of their curriculum or mission and could be destructive to the education process, then, combined with the public relations interest, the institution could have done almost anything short of shutting down the conference. Additionally, the Declaration of Principles from the AAUP, cited above, demands that no argument be left one-sided. When it comes to controversial issues in the classroom, there is a need to explain both sides of an issue. Although the conference is not equivalent to a classroom, the professors presenting still bear that same special status of influence over the attendees. Although technically there may not be grounds to require representation from the other side of the issue, within the spirit of academic freedom there are grounds for the university to strongly advise that course of action.
B. Intramural and Extramural SpeechKevin MacDonald

After previously dealing with a case outside the classroom, it is here helpful to examine activity within the classroom, and the activities of a professor. The case of Kevin MacDonald raises the question of what a university can do if one of its professors utilizes rhetoric that is blatantly and publicly anti-Semitic. There are two possible courses of action for a university. If one is to assume that Professor MacDonald did instill anti-Semitic ideas in the classroom, the case becomes simpler. There is little doubt that almost any Jewish student sitting in his class would feel direct hostility in the classroom. This is a basis the university can easily use to take action, based on Bonnell v. Lorenzo. In addition, it is doubtful that blatant anti-Semitism or racism taught in the classroom would be protected under the pall of orthodoxy standard. Therefore, if a school feels that those theories should not be taught, it can most likely prohibit a professor from teaching them. However, when a professors opinions are expressed solely outside the classroom, it becomes more complicated. According to the AAUP 1940 statement, if a professor is speaking or writing as a citizen, the professor must be free from censorship or discipline. However, the individual must be accurate, respect the opinions of others, and must make it clear that any
58
[Vol. 4
expressed opinions do not reflect those of the university. In the 1970 interpretive comments to the 1940 statement, it is explained that a professors opinion does not constitute grounds for dismissal unless it shows that he or she is unfit for the position. Based on this revision alone, there may be space to argue that a professor who believes in such racist theories is unfit to teach. Yet, the revisions continue to say that the decision to dismiss a professor should take into account the individuals entire record as a teacher and scholar. This seems to imply that even if the professor is unfit to teach because of his or her racist views, if he or she has an impeccable record and is a world renowned scholar in a field then there would not be grounds to fire the individual. From a legal perspective, the most important case that sheds light on this situation is Pickering v. Board of Education. In that case it was concluded that without proof that a teacher knowingly made false statements, the teacher had the right to express his opinions on matters of public concern without being fired.39 Two questions arise when applying this ruling to MacDonald. This first asks whether anti-Semitic statements like Jews are a hostile elite who are aggressive and are an invasion of western society are considered false. The answer, most likely, is no. Though an inappropriate statement, it is most likely considered an opinion that Jews have those characteristics and therefore is not determined by such a question. The second question posits whether MacDonald was discussing an issue of public concern. There are two cases that offer different conclusions on this point. One is Jeffries v. Harleston, which brought to light Professor Leonard Jeffries, of City University of New York (CUNY), who gave a speech about racial bias in the New York public school system and made some anti-Semitic statements in the process. The university consequentially took away Jeffries position as head of the Black Studies department, but he was allowed to stay on as a professor. Here, the Second Circuit ruled that the school could not take away Jeffries position as department chair as his speech substantially
39
See, e.g., Pickering v. Board of Education, supra note 28.
59
involved a matter of public concern,40 and therefore was protected. The second case was Dambrot v. Central Michigan University, where a coach used the n-word to motivate his players and was subsequently fired because of it. Here, the court ruled that motivating players was not an issue of public concern, and therefore the university rightly fired the coach. In the case of MacDonald, the question comes down to the content of his articles. If he wrote an article about the economic recession, it would probably be considered an issue of public concern, and MacDonald would be protected to say whatever he wanted. However, if MacDonald were writing an article about how the Jews managed to take control of the media, there would be a greater likelihood that his speech would not be protected, and a university would be able to take action.
III. HOW FREE IS FREE?

It is universally understood that the general goal of a university is to educate and conduct research in order to broaden the general base of knowledge of the university and of the world. Yet, there are varying ideas as to the more specific goals of a university. Some academics believe that the goal is to find truths.41 This goal of finding truths is one that Jonathan R. Cole, the John Mitchell Mason Professor of the University and Provost and Dean of Faculties, Emeritus at Columbia University, believes is fundamental to the well being of the nation.42 One way to explore these truths is by examining ideas through debate and inquiry. Professor Cole contended that any failure to defend dissenting voices on the campus places at risk the greatest engine for the creation of new ideas and scientific innovation the world has ever known.43 Some, however, view the goal of the university in a more existential way. Benno Schmidt, former President of Yale Universityin the context of his concern about freedom of
40 41 42 43
Jeffries v. Harleston, 21 F.3d 1238 (2d Cir.1994). See Rabban, supra note 7, at 237. Id. at 6. Jonathan R Cole, Academic Freedom Under Fire 6 (2d ed. 2005).
60
[Vol. 4
expression on college campusesexplained that there is an incorrect assumption that the purpose of education is to induce correct opinion rather than to search for wisdom and to liberate the mind.44 Instead of focusing on truth, he focuses on an individuals growth with wisdom and expanding the boundaries of the mind. There are also the academics that fall in between the two schools of thought. One such academic is New York University President John Sexton, who wrote, Our universities are modern sanctuaries, the sacred spaces sustaining scholarship, creativity and learning. What makes these sanctuaries special is the core commitment to free, unbridled and ideologically unconstrained discourse in which claims of knowledge are examined, confirmed, deepened or replaced.45 Nevertheless, the underlying notion in all three views is that there is a certain freedom necessary to achieve the goals of a university. Many people attribute the fact that the United States has eighty percent of the twenty most distinguished research universities, and about seventy percent of the top fifty [universities]46 to the countys protection of academic freedom. However, every freedom has its limits. While the United States attributes many of its successes to its broad freedoms of institutions like those of speech and religion, the country also has limits to ensure that no freedom is absolute. Checks and balances are an integral part of the United States Constitution, which is exemplified by the limitations placed on many of the freedoms outlined in the Bill of Rights. Regardless of its constitutional standing and protection, academic freedom should not be an exception to this system of checks and balances. This thought process is illuminated by the tension between a Professors academic freedom and a universitys academic freedom and how they interact. As indicated previously, a universitys interests oftentimes override an individuals interest. This means that if
44 Issues: Academic Excellence, American Council for Trustees and Alumni, http://www.goacta.org/issues/academicfreedom.cfm?CFID=997056&CFTOKEN=6383752ae72340eb-47C17121-CE2A-B02D8DA780989BD9C327 (last visited April 11, 2013). 45 Joel Seligman, Academic Freedom, Remarks at the Jewish Community Center, 9 (2008), http://www.rochester.edu/president/memos/2008/academic_freedom.pdf. 46 Id. at 6.
61
there is a dispute between the university and a professor in terms of, for example, what to include in a curriculum, the university has the ability to make the final decision. Although this may seem like a breach in academic freedom, it is actually an expansion of the academic freedom powers of a university. Another circumstance in which academic freedom may need to be monitored is when controversial, offensive, or inaccurate material is brought into the classroom. In the 1915 general Declaration of Principles released by the AAUP, and in the general guidelines released in 1940, there are instructions on how to deal with such matters in a classroom. The General Principles explain that [t]he university teacher, in giving instruction upon controversial matters, while he is under no obligation to hide his own opinion should, in dealing with such subjects, set forth justly, without suppression or innuendo, the divergent opinions of other investigators.47 In truth, this statement is an expansion of academic freedom, demanding that a professor always give both sides of an argument. However, this statement highlights the fact that students are highly influenced by a professors presentation, and if that presentation is one sided, the students may not receive a complete understanding on the subject matter. Jonathan Cole points out that professors are in positions of authority to coerce and cow students into conforming to their own point of view.48 With this sensitivity of the unique influence of a professor in mind, the 1940 guidelines ask that a professor not bring up controversial matter that has no relation to the subject being taught.49 There is an understanding that without expertise in an area and without the balance of different viewpoints, there is no merit to discussing it in the classroom. From here we see that academic freedom does not seem to allow for uninformed ideological discussion in a classroom setting. In a classroom setting, a professor must be sensitive to his student body and to their backgrounds. There have been incidents of professors berating students for their opinions and allegiances.
47 48 49
Seligman, supra note 1. Cole, supra note 43. See 1940 Statement of Principles on academic freedom and Tenure, supra note 2.
62
[Vol. 4
This is unacceptable by anyones standards. In a Sixth Circuit case about verbal sexual harassment in the classroom (Bonnell v. Lorenzo), the court pointed out that students have the right to learn in a hostile-free environment.50 This right overrides a professors rights to academic freedom.51 The decision was based on the idea that a professor has a certain power over his students that must be used properly. A professor is entitled to his beliefs just like anyone else, but when these beliefs are expressed in a way that criticizes students or is an exhibition of [s]peech that rises to the level of harassmentwhether based on sex, race, ethnicity, or other invidious premiseand which creates a hostile learning environment that ultimately thwarts the academic process, that is something that the institution has a strong interest in preventing.52 As Lisa M. Woodward wrote in the Capital University Law Review:
Academic freedom does not mean that professors are immune from all consequences of whatever they say or do. Colleges and universities have an independent legal duty and an overriding interest in providing a classroom learning environment free fromharassmentWhen other moral values more important than academic freedom are violated, society can place appropriate limits on itProfessors who violate the duties of professional competence or ethical conduct cannot claim the protection of academic freedom; in those instances, the institution has a 53 right to impose appropriate discipline.
This strong language clearly outlines the limits a professor has in his teaching. It is important to understand that academic freedom can be trumped. This does not mean that a professor should not dictate his or her opinions, but it does provide limits for this expression. Unfortunately there are teachers who do not abide by these guidelines. This likely stems from an incorrect understanding of academic freedom. There is nothing wrong with the belief that the mission of a university is to challenge prevailing values,
Bonnell v. Lorenzo, supra note 31. Id. Bonnell v. Lorenzo, supra note 31. Lisa M. Woodward, Comment: Collision in the Classroom: Is Academic Freedom a License for Sexual Harassment?, 27 Cap. U. L. Rev. 667, 668 (1999).
50 51 52 53
63
policies, beliefs and institutions and that a college should be a place that pushes at the walls of orthodoxy and rejects politically correct thinking.54 However, these beliefs can lead to issues like hostile and unproductive exchanges in the classroom. Most writing about academic freedom discusses the protections professors gain. Instead of understanding academic freedom as a privilege given to professors and researchers to explore the world of academia with virtually free reign, however, some professors are prone to understanding it as a way to protect them from harm and misuse academic freedom as a shield to hide behind. This is a subtle, yet important difference. If academic freedom was presented as something unique to the field of education, and as a privilege granted to researchers and educators to expand their knowledge and the knowledge of others, teachers would not abuse it. The problem is that teachers see it as their right, and therefore fail to accept or understand when it is curtailed. The decisions of the courts that imply it is a constitutional right have changed academic freedom from a value emphasized by the AAUP to a legal right. However, abuse of this right by those in academic positions must be penalized in order to attain the uniquely positive contributions that academic freedom provides.
54
Id.
64
[Vol. 4
KAPLAN S CRUSADE
Lead Editors: Gloria Cadder* and Talia Helfrick**
The institution of the Brandeis Student Judiciary exists to ensure that justice is done for students of Brandeis University. Occasionally, it becomes necessary to probe how well this institution accomplishes that task and fulfills its duty. Inspired by student Dean Kaplans 2012 case regarding Student Union elections, this feature explores the flaws in the Brandeis judiciary system.
I. SUMMARY OF KAPLANS CASE
randeis held its first round of Student Union elections for the school year on September 20, 2012. The off-campus senator results were: Dean Kaplan 15 with 20 votes, Sunny Aidasani 14 with 17 votes, and the abstain option with 23 votes.1 Article IX, Section 6 of the Brandeis Student Union Constitution, in pertinent part, states if abstain receives the greatest number of votes during a final election, then there will be a vacancy in the office until the next election. Although neither candidate should have been declared victor, Chief of Elections Carlton Shakes 14 wrongfully announced Kaplan as the winner, and Kaplan was subsequently sworn in as off-campus senator. Upon realizing the mistake, Shakes apologized and announced that there would be a re-vote later in the week for the position of off-campus senator. The Judiciary unanimously upheld the constitutionality of the re-vote, based on Article IX, Section 7 of the Union Constitution, which empowers the Chief of Elections to resolve any and all election disputes.2 Article IX, Section 7 of the
Undergraduate at Brandeis University, Class of 2015. Undergraduate at Brandeis University, Class of 2015. Tate Herbert, Student Judiciary to hold trial for election case , THE JUSTICE, Oct. 16, 2012, http://www.thejustice.org/news/student-judiciary-to-hold-trial-for-election-case1.2928131#.UWyML46-OrY. 2 STUDENT UNION CONST. art.4, 7 (http://union.brandeis.edu/home/constitution#TOC-Article-IV:Student-Judiciary).
** *
2013]
Kaplan's Crusade
65
Constitution also states that the Chief of Elections decisions may be appealed to the Student Judiciary,3 which Section 11 describes as the final arbiter of elections.4 Section 11 part 3 gives the Judiciary the power to order a re-vote within five academic days of the original vote (this power of the Judiciary was not exercised). 5 In the re-vote mandated by Shakes, Kaplan received the least number of votes and was removed from office.6 Subsequent to his removal from office, Kaplan submitted a complaint charging the entire Brandeis Student Union Judiciary with wrongfully suspending [his] position of Off-Campus Senate Representative and requested that all 57 elected and appointed Union officials be removed from office. No justice granted certiorari on the appeal, and they thus did not agree to hear Kaplans case. Kaplan then filed a second charge, accusing Shakes of overstepping his boundaries as Chief of Elections, by attempting to resolve a dispute when a dispute was not officially issued. Once again, no justice issued certiorari. Kaplan filed a third appeal in which he claimed that because he was sworn in as Off-Campus Senator, his removal from office was conducted in an unconstitutional manner. He was finally granted certiorari.7 Before the standard trial ensued, however, Kaplan met with Student Union President Todd Kirkland 13, and the two were able to reach a compromise during a private mediation. According to Article IV, Section 1, a mediation resolution process is encouraged as the first approach to resolving disagreements in an informal, non-adversarial manner. Although Kaplans original goal was to resume his position as Off-Campus Senator, the mediation instead resulted in the discussion of Kaplan creating a university
Id. STUDENT UNION CONST. art.4, 11 (http://union.brandeis.edu/home/constitution#TOC-ArticleIV:-Student-Judiciary). 5 STUDENT UNION CONST. art. 4, 11, part 3 (http://union.brandeis.edu/home/constitution#TOCArticle-IV:-Student-Judiciary). 6 Herbert, supra note 1. 7 Herbert, supra note 1.
3 4
66
[Vol. 4
committee to address issues concerning Brandeis students living off-campus.8
II. FLAWS WITH THE SYSTEM

Kaplans case never proceeded beyond the preliminary stage of filing a complaint because of flaws in the Brandeis judicial system - flaws that a close analysis of Kaplans case reveals. The Brandeis Student Union Constitution is vague on the subject of filing a complaint. In Article IV Section IV, the Student Union Constitution states: 1. A written complaint, which levies specific charges, must be presented to the Clerk of the Court for a case to be heard. 2. The Student Judiciary shall be compelled to hear a case if one justice grants certiorari. 3. The case shall be heard within five academic days of its presentation to the Clerk of the Court, contingent upon certiorari, unless both parties agree to a date after this period.9 This bare-bones three-point description excludes several pieces of useful information that one might want to know when filing a complaint. It does not address what categories of information to include in the written complaint, there is no formal suggestion list of possible charges, and it does not mention how long one can wait to file a complaint after being harmed in some way. There are potentially many other things a student would need to know in order to successfully file a complaint that one may only realize after attempting to initiate a judicial proceeding themselves. Kaplan declined to comment on whether he ran into any unexpected difficulties. Because the Judiciarys records are incomplete, unmaintained, or non-existent, the Clerk of the Court, Paige Moscow, was unable to say whether any past students were also forced to file several different complaints before discovering the correct charge. She did
8 Tate Herbert, Kaplans case ends in mediation with Union, THE JUSTICE, Oct. 23, 2012, http://www.thejustice.org/news/kaplan-s-case-ends-in-mediation-with-union1.2934271#.UWyM8o6-OrZ. 9 STUDENT UNION CONST. art.4, 4 (http://union.brandeis.edu/home/constitution#TOC-Article-IV:Student-Judiciary).
2013]
Kaplan's Crusade
67
say that there is not a limit to the number of times a student can try to raise a case over the same event, but that the number of times Kaplan filed was unusual.10 It is also impossible to discover whether any previous cases had a legitimate justifiable controversy but made only one attempt at filing and gave up after being denied certiorari.
III. IMPLICATION
The flaws within the process of filing a complaint, as it is outlined in the Student Union Constitution, may have a chilling effect on students execution of the process, since they would potentially have to file an infinite number of claims before stumbling upon the correct charge. Students may be discouraged from filing a claim due to the vagueness of the instructions. This lack of information prevents students with valid complaints from seeking justice because there is no instruction as to how to go about filing a charge. Further, students who bring charges may be denied justice simply because they fail to file the proper charge. Although Kaplan was persistent, another student may not realize that filing different charges could lead to a different outcome, such as a grant of certiorari. There is no reasonable basis for the Constitution to be written in such a way as to limit cases heard by the Student Judiciary. The Judiciary does not have an excessive number of cases by any means. According to Moscow, she has only dealt with one case between the middle of the Spring 2012 semester and the end of January 2012.11 Even if there were a an overabundance of cases, this would not be an appropriate justification for limiting the number of cases that reach the justices, who already have the ultimate say over whether or not to hear a case. Such ambiguous language could prevent people with legitimate claims from making their case, which is antithetical to Brandeis University values.
10 E-mail from Paige Moscow, Clerk of the Court, Brandeis Judiciary, to Gloria Cadder, Editor at the Brandeis Law Journal (Jan 24, 2013, 12:42 EST). 11 Id.
68
[Vol. 4
IV. SUGGESTED SOLUTIONS

This troubling situation requires a solution, so anyone who is concerned ought to brainstorm potential ways to improve the efficacy of the system. Here at the Brandeis Law Journal, we have come up with multiple options. First, judges could aid the plaintiff in bringing about the proper charge. The way the system is currently arranged, the justices have the most extensive knowledge of the Brandeis Constitution and what charges are and are not appropriate or judiciable. The help of the justices would allay the chilling effect created when potential plaintiffs have to file multiple times, encountering constant rejection, until they stumble upon a charge that the Judiciary will accept. The downside of this plan is that it is not the job of the judiciary to supply the plaintiff with a charge. Further, the justices conflict of interest would make it nearly impossible for the plaintiff to receive unbiased advice. Essentially, the problem is that students who have been wronged and want a trial are being denied that right because they are unable to choose the right language to express their injury. While it is within the unique ken of the justices to construct the proper charge, their primary duty and subsidiary biases make it impossible for plaintiffs to rely on their advice. The problem now becomes finding a suitable advising body one with the knowledge of the justices and the impartiality of an independent organization. A second, more finessed solution might be a public defendertype organization, but for the plaintiffs side. Currently, Brandeis only has an ad hoc student legal advising organization, meaning the organization only functions to advise students who are facing charges that have already been granted certiorari. The creation of a separate a priori organization, designed to help students file charges, and not just respond to them, presents a suitable advising body with many resulting direct and indirect positive effects. Plaintiffs would have knowledgeable people to turn to for assistance, so the correct charges would be filed on the first try, reducing the chilling effect. With the assistance of a uniquely educated auxiliary body, more cases might be heard by the justices
2013]
Kaplan's Crusade
69
(or at least filed, recognized, and mediated). While suggesting that more cases are desirable and that the student body should have a legal advising group may seem litigious, in actuality, increased cases and a student legal advising organization help promote an effective judiciary system and foster an appreciation of the law. Less direct benefits include the learning opportunities for students who choose become involved in this kind of organization and greater interconnectedness on campus. Third, the Student Union could vote on possible additions to the Union Constitution Article IV Section IV. A subsection could be added regarding the statute of limitations - how much time one has to file a complaint after an incident occurs. There could be clarification in the Constitution as to what information the justices look for in a filing. The Union might also consider recognizing a list of charges. This, in combination with a student legal advising organization, seems to fit the needs of the student body best. Other solutions that the Judiciary and the Union might consider include: making the justices terms longer, more thorough tracking of precedents and principles, and perhaps forming a system in which decisions become bylaws to the Union Constitution. Longer terms have the benefit of providing justices with more experience, as well as insulating the justices from the influence public opinion; the downside of longer terms is that it limits the number of students who can work on the Judiciary. More thorough filing of case materials and decisions would help the justices to better understand problematic situations that may arise, as they did in this past year. It would also aid in the productive development of reviews such as this one, which may lead to further improvements to the Judiciary and the Constitution. The aforementioned system proposal would make precedent-setting principles from cases readily accessible to the general student population. The shift may be somewhat arduous to implement, however, the positive effects of these proposals make each one worth considering.
70
[Vol. 4
V. CONCLUSION
The faults we have found with the Brandeis Judiciary system are admittedly not major ones. They do not drastically impact most of us. However, the system falls short of perfection. Any way we can get it closer to the golden standard could help that one person in the future who sees the current process as daunting, confusing, and worst of all, unjust.
2013]
Gideon at Fifty
71
GIDEON AT F IFTY
Gloria Cadder*
On March 18, 2013, Brandeis University invited a panel of guests to Rapaporte Treasure Hall to discuss the legacy of the Supreme Court Case Gideon v. Wainwright on its 50th anniversary. The Gideon decision was a rare move for the Supreme Court because it overturned a previous case, Betts v. Brady, and established the right to a lawyer for all indigent criminal defendants under the Sixth Amendment right to a fair trial. The guests included Margot Botsford, an Associate Justice on the Massachusetts Supreme Judicial Court; University President Frederick M. Lawrence, a professor, lawyer, and civil rights expert; William Leahy, the Director of the New York State Office of Indigent Legal Services; and lastly, Anthony Lewis, journalist and author of the definitive book on the case, Gideons Trumpet. Unfortunately, Anthony Lewis passed away a week after this event. The questions posed by moderator David Bunis, the University Chief of Staff, and an abridged transcript of the panelists responses follows.
QUESTION AND ANSWER

DB: Let me start our discussion by asking Anthony Lewis, what was it about the Gideon decision that you became so passionate about? AL: Something of rare importance was happening; a case [Betts v. Brady] that had become the basis for many, many criminal law cases in the Supreme Court had just disappeared at a whiff because the judges had decided they were wrong at the start the decision then was that you could deny the right to a lawyer, if the defendantthe criminal defendantdid not have any special circumstances making him disabled for arguing his case [] [Justice] Black thought that was just wrong from the start and he never stopped thinking that So when he said those words, Now
*
72
[Vol. 4
weve decided that we were wrong, it had a powerful emotional impact on me It was really a remarkable moment for me Of the oral arguments at the Supreme Court: It was both a very human argument and a very revealing one. After discussing Justice Blacks tenacity, other personal qualities, and other cases Black had a significant role in overturning: That was Justice Black, and he was the spirit behind this case, I always thought. Lewis relates the particular requirements for submitting documents to the Supreme Court when asking for a case to be heard, and then explains that there was an exception, for those who couldnt afford to submit multiple, typed copies. They could submit one copy, and it could be handwritten. And Gideons was handwritten, in pencil, on prison stationary. I saw right at the beginning that it was an unusual request, that it was a letter to the Supreme Court written in pencil by a prisoner and that was in itself a romantic idea, that you can be in a prison in Bradford, Florida and write a letter to the Supreme Court and think you had any hope of hearing your case. He did have a hope, didnt he? I could see that the fact that the Court had agreed to hear this case, this extremely obscure case, from one of the most obscure human beings in the United States, a poor prisoner in a Florida penitentiary. How can you think of anyone more remote? [] And the fact that the court had agreed to hear it led me to believe instantly that they were going to reverse Betts and Brady [sic]. Anthony Lewis goes on to discuss the two lawyers appointed to the case: Abe Fortas and Bruce Chaffee. He concludes with If I go on too long, youve got to shut me up. No one seemed very eager for him to stop.1 DB: [William Leahy], from your perspective as the defense counsel, public defender, your experience in the courtroom, and your perspective over these years, can you talk
1 Gideon at 50: Anthony Lewis recalls the key figures in the case, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=sbOvdvh928&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3sUTs
2013]
Gideon at Fifty
73
a bit about your view[on] the impact of Gideon over the past half-century? WL: There is no standard of uniform or quality in the United States. When Gideon was decided, the hope was, the dream was [] would every person regardless of wealth feel, sure of the support needed to have an effective defense with a lawyer by his or her side. And would the lawyer who was appointed feel sure he or she would have the support necessary to provide an adequate defense. And the good of the past fifty years is we have, literally, not just hundreds, but thousands, of lawyers who have dedicated their careers to providing effective representation for poor people. And I have been privileged to work with many, many lawyers who are at the top of their professionnot just the indigent criminal defense profession, but the entire profession [] Some states, and I like to think Massachusetts is one of them, have done quite an impressive job of extending that right to everyone who has legal entitlement to it. But in many other jurisdictions, and the jurisdiction I work in now in New York, in upstate New York, one of the things we are now doing, 50 years after Gideon, is extending the right to counsel to the first court appearance, when bail is set. In most of New York State, that right does not now exist, 50 years later, which is a shocking thing. I did not know it when I was in Massachusetts. And it is typical, of many other states [] The other factors, notwithstanding the many good lawyers who work to make the Gideon dream real: there are two major national realities that have to be recognized, and that I hope can be addressed in the second half-century. One is that this federal Constitutional entitlement under the Sixth Amendment is absolutely unfunded. The entire burden is placed on the states, and the localities within the states. The federal government has contributed next to nothing over 50 years in the way of financial support and in the way of nationally applicable standards to guide the representation [] The second thing is that even worse than the unfunded federal mandate is that the federal government, almost from the inception of Gideon, at least starting about ten years later, has devoted billions of dollars, and even millions annually, to state and local
74
[Vol. 4
criminal justice efforts, but it has virtually all been on the prosecution and police side. And weve become a much, much, much more punitive society; in the course of that, the burden and the final factor I should mention is that the Supreme Court at the same time has constantly extended the Gideon right, to juveniles, to civil commitment proceedings, to, suspended sentences that can result in incarceration, to misdemeanors. So the right becomes broader, the nation becomes more punitive, costs spike up, theres no support So there are, just many, many more forces at work in a negative or punitive kind of way that have kind of washed the Gideon dream and submerged it, but hasnt drowned it, but has submerged it, so that theres an awful lot of work to be done.2 DB: Justice [Margot] Botsford both as a trial court judge, and as an appellate judge [what is] your view, from the bench? MB: In support of Massachusetts it is worth noting that eight years before Gideon was decided, by rule the court, the Supreme Judicial Court required there to be counsel available for those who couldnt afford it in felony cases The Gideon dream is totally un-funded, and that means that states can deal with it as they will. What I would notice, just as a generalization, from sitting on the bench, is that what we have now is kind of a bifurcated system. Justice Botsford describes the MA system as one in which there is a state-funded staff of attorneys, which she deems excellent in general, and a division of private attorneys who take on some public defending. She describes the latter half of the system as less excellent, and lamented the lack of uniform standards. However, she also presents a rationale for having two separate divisions. If the whole system were state employees providing services, it wouldnt work legally because youd have conflicts of interest.
Gideon at 50: William Leahy, Chief of Indigent Services for the State of New York, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=Cb0kG6JSUG4&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3s UTs
2
2013]
Gideon at Fifty
75
And, it also raises the specter that if everyone is working for the state, then the state starts cutting the funding, and so the case load increases, et cetera, et cetera She praises the MA system.3 DB: From the prosecutors perspective, President Lawrence used to be an Assistant United States Attorney from the southern district of New York [after summarizing an op-ed by Paul Butler in the New York Times] where in the overall responsibility for the administration of justice do the sentencing guidelines and the discretion that prosecutors have, fit into this conversation? FL: President Lawrence remarks upon working with Paul Butler prior to his arrival at Brandeis. He hints that Butlers ideas are just crazy enough to be true. President Lawrence goes on to examine where Lewis and other scholars have found the passion in Blacks majority opinion in Gideon. Up until the Due Process Revolution, in many ways, one thought of protections of the law as substantive protections, rights that you had under the law, but the genius of the Due Process Revolution was that if there are not procedural protections put in place, all those substantive rights dont mean anything, if there isnt some way to enforce them procedurally. Quoting a former law clerk of Justice Brandeis, The only true integrity is the integrity of process What he really meant by that is that the systems got to be fair from the get-go but [the former clerk of Justice Brandeis] would certainly say, dammit, they better have a good lawyer to be able to represent them. Otherwise, theres no integrity of process. So where does the passion come from? I think the passion comes from the fact that this integrity of process, that this due process revolution, was really built along the notion that everyone who was a member of society certainly starts with
3 Gideon at 50: William Leahy, Chief, Margot Botsford, Associate Justice of the Supreme Judicial Court of Massachusetts, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=ck0zBWSK9cc&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3s UTs
76
[Vol. 4
inalienable rightswe know where that comes frombut has a right to have them enforced and hereheres the payoff, it triggers your obligations of government back, to help enforce them. President Lawrence goes on to say that the Sixth Amendment right to a fair trial applies to everyone, every member of society, and that even though the criminal justice system is especially likely to make us think in terms of we and them, the due process revolution teaches us to think of everyone as we. To describe the work of a prosecutor, President Lawrence quoted a Supreme Court opinion: Prosecutors are obliged to strike hard but fair blows. He says, Our job was not to see that the government won; it was to see that justice was done. I think the real challenge of the criminal justice system is to break down that we/they stuff.4 DB: Lets look ahead ten years where, in your mind, is this right to counsel heading? Is it going to go to a better place? And in your opinion what could be necessary for the political willif thats whats requiredto get there? WL: Mr. Leahy comments on the political divides between the right, which beliefs there is over-harsh sentencing of white-collar criminals, and the left, which focuses more on the lack of adequate representation for poor alleged criminals. He mentions a plan that he discussed with key members of the legal system in New York, for a National Commission on the Fair Administration of Justice, which he intends to be a unifying group. He says that there was great support for that project. Weve got to break down these interest group divides where its defense versus prosecution, right versus left I hope that this can merge into what in essence needs to be a political movement because the power of Gideon comes from a court decision; it has never actually captured national political support in a way that it needs to, to make it effective.
Gideon at 50:Presdient Lawrence on prosecution and defense, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=tc4Eru9yTI8&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3sUT s
4
2013]
Gideon at Fifty
77
AL: I dont disagree with a word of that. I think it was wonderful. Of course, the people who are actually responsible for much of the trouble we have were not at [the conference Leahy mentioned]: members of Congress and theyre the guys who pass these absurd laws, piling on these outrageous punishments, which cause a lot of the trouble Whats going to make that political will come? I think a celebration of Gideon, which is what were doing over this weekend and this week, is a good thing. I think [it will] get the public to understand that this is a moment of glory for the United States. This is us at our best, you know, making a difference in the decencies of life. MB: Im not as sanguine as others I totally agree that its political will, but I think that takes both a commitment to the idea that the best way to deal with crime is not locking everybody up. And it also takes money to supply the lawyers to make the good defense. And I dont know that we have that political will. I mean, even in this state [we passed a law last year that made the system more punitive.] So its just not clear to me that, theres much to be hopeful for, but I say that and then I listen to Tony, and I think I have to change my view. Its a very tough nut to crack because of the combination, which is a pretty lethal combination of people not wanting to spend more money on taxes and not wanting to, think about ways that you let out terrible criminals from prison. David Bunis comments that the cost of incarcerating someone should also be part of the political conversation. FL: I share her Honors skepticism that theres going to be political will. President Lawrence suggests combining the young lawyers and law school students who are suffering in the job market with the underserved population of criminal defendants.
78
[Vol. 4
WL: Good lawyering, even at public sector rates, costs money; its not cheap.5 The event closed with questions from the audience. One, from Leigh Swigart, regarded whether we could learn from models in other countries. William Leahy thinks that, the British system is an excellent one, and despite being a little bureaucratic, is worth emulating. The discussion involved several members of the audience, students, faculty and staff alike. All of the questions were well put and showed a genuine interest in the subject matter. Overall, it appears that this celebration of Gideon achieved what Anthony Lewis would want from such an event: it helped the Brandeis community to understand what a wonderful, but as yet unmet, promise the Gideon case represents.
Gideon at 50: Panel Discussion, International Center for Ethics, Justice, and Public Life (September 15, 2013), http://www.youtube.com/watch?v=2KE_cTRMX38&list=PLt99vV5Y7Yf8SKDJtammt7tLGWRP3s UTs
2013]
The Transformation of American Immigration Law
79
WHOM S HALL W E W ELCOME ? T HE T RANSFORMATION OF AMERICAN I MMIGRATION L AW

Duc Tran*
Immigration law is one of the largest and most complicated bodies of U.S. legislation. Despite extensive academic literature on immigration policy, there have been very few comprehensive works on the history of American immigration law. This paper traces back the origin of U.S. immigration policy and reveals reasons behind major legal changes, which include several overlooked events. It answers the question of what elements of the past did, do, and would challenge Congress in its quest for the best way to solve immigration problems.
n September 2010, Global Horizon Manpower, a Los Angeles Company, was accused of forcing four hundred illegal immigrants from Thailand to work like slaves on farms in Hawaii and Washington. The workers were set up in shoddy housing and threatened with arrest or deportation if they escaped.1 This case has raised so much concern about current American immigration law that President Barrack Obama is preparing for an immigration reform.2 In fact, immigration law is one of the largest and most complicated bodies of the U.S. legislation due to the overwhelming number of immigrants from all over the world.3 Since the founding of the nation, there has been an intimate connection between people and events beyond the U.S. border and American development. Throughout American history, immigration policies tend to respond to crises caused by floods of people to the United States. They are also linked to foreign policy
Undergraduate at Brandeis University, Class of 2013. Forced Labor, Letter to the Editor, N.Y. TIMES, Sep. 8, 2010. Id. EDWARD P. HUTCHINSON, Preface to LEGISLATIVE HISTORY OF AMERICAN IMMIGRATION POLICY 1798-1965, xiii (1981).
1 2 3
80
[Vol. 4
with other nations.4 Since the United States is facing serious socioeconomic problems, research on American immigration law constitutes the base for American citizens to rethink their previous treatment of immigrants, to realize what has influenced policies, and to decide on what they should do in the future. This article traces the origins of U.S. immigration policy and reveals reasons behind major legal changes in the past. It answers the question of what did, do, and would challenge Congress in its quest for the best solution to immigration problems.
I. HISTORY OF AMERICAN IMMIGRATION POLICY A. The Colonial Era

The history of American immigration policy does not begin with the first federal legislation but with the founding of the first permanent European settlements in North America in the early seventeenth century. The first settlers formulated measures and policies to address problems of immigration caused by those who followed them to the American colonies. Those policies were subject to approval by the English Crown or the Proprietors.5 In fact, at the beginning of colonization, newcomers brought a sense of greater strength and security to the community. Therefore, most colonies adopted policies to encourage immigration, including land grants, religious toleration, tax exemption, travel grants, and even easy terms of naturalization. The encouragement policy was not only directed at migrants from Europe, but also at settlers from other colonies.6 After the need for reinforcements became less urgent, the older settlers began to look with mixed feelings at the later arrivals and to seek means to ward off the undesirable ones. Exclusion policies became much more common, especially excluding people because of their religion. Catholics and Quakers were excluded and persecuted in some of the colonies like Massachusetts and
Introduction to THE GATEWAY : U.S. IMMIGRATION ISSUES AND POLICIES 1 (Barry R. Chiswick ed., American Enterprise Institute for Public Policy Research, 1982). 5 HUTCHINSON, supra note 4, at 388-89. 6 HUTCHINSON, supra note 4, at 389.
4
2013]
81
Maryland due to religious intolerance and a desire for homogeneity.7 The colonies also tried to exclude the poor and criminals to prevent public charges and to protect the community. By reporting all arrivals and taxing immigrants, the colonies controlled who entered and restrained the number of newcomers. For example, a 1740 Delaware act, called An Act Imposing a Duty on Persons Convicted of Heinous Crimes and to Prevent Poor and Impotent Persons Being Imported, provided that unwanted immigrants would be returned to their origins.8 In general, immigration brought both benefits and difficulties to the American colonies. Thus, the colonies were forced to devise a system of control or regulation that would maintain the benefits and reduce the difficulties. Because of the lack of precedents for guidance, they had to experiment with various measures and policies, leaving the new country with an accumulation of experience regarding immigration. However, immigration laws were generally lax by the founding of the States. Following the Revolutionary War (1775-1783), the colonialists established the United States of America, ending the colonial era with the Declaration of Independence in 1776. Then, states replaced former colonies and took over the responsibilities for dealing with immigration. For almost a century, local jurisdictions rather than the federal government regulated immigration to the United States.9 Although Congress had authority over immigration as stated in the Constitution, it did not exercise its authority, except for the brief episode of the Alien and Sedition Acts in 1798, encouraging the states to deal with immigration instead.10 The Founding Fathers treated immigrants generously. For example, George Washingtons 1790 letter to the
supra note 4, at 390. HUTCHINSON, supra note 4, at 390-95. AMERICAN GULAG: INSIDE U.S. IMMIGRATION PRISONS 6 (2004). See HUTCHINSON, supra note 4, at 396. The only direct reference in the Constitution to the control of immigration is in Art. I, 9, cls. 1: The immigration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year one thousand and eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. Although this was mostly about the slave trade, it was also interpreted to give control over immigration to the federal government in and after 1808. But Congress did not exercise its authority due to its uncertain power over immigration.
9 MARK DOW, 10 7 HUTCHINSON, 8
82
[Vol. 4
Jewish synagogue in Rhode Island implies that all people have the right to come to America if they can become good citizens.11 Furthermore, the local governments were not very strict about immigration. Most immigrants arrived at major ports and the port commissioners were those who made the decisions about how to handle them. The commissioners decided who to admit and who to reject.12 In fact, in most cases, immigrants only needed to pass a medical examination to enter America. Despite the fear of revolutionary aliens such as Irish and French radicals, deportation was rare, thus, immigration to the United States during that time was not difficult.13 However, there were still some limitations on immigration because the states followed the pattern of the colonial legislation. They were active in passing legislation to protect themselves from the financial burden of public charges and the danger of criminals.14 For instance, a Massachusetts act of 1837 provided that any alien passengers found to be lunatic, idiot, maimed, aged or infirm persons incompetent in the opinion of the officer so examining were denied permission to land.15 The states, encouraged by Congress, also adopted laws prohibiting the immigration of criminals from foreign countries into the United States.16 In fact, most of those laws were meant to respond to an enormous surge in immigration from Ireland and Germany in the 1840s. Nearly all of the German and Irish immigrants were destitute when they arrived in America, and soon some became public charges or took on the career of criminals. In addition, most of the Irish and half of the Germans were Catholics, which provoked a nativist backlash among Protestant Americansthe
11 Washington to Hebrew Congregation at New Port, Rhode Island, August, 1790, in The Papers of George Washington, Presidential Series 6, 284-86 (ed. Mark Mastromarino, 1996). In the letter, Washington states, For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support. 12 DOW, supra note 10, at 6. 13 DOW, supra note 10, at 6. 14 HUTCHINSON, supra note 4, at 396-403. 15 HUTCHINSON, supra note 4, at 399-400. 16 HUTCHINSON, supra note 4, at 400.
2013]
83
first anti-immigrant movement in America.17 In short, the state policies on immigration mainly followed the pattern of the colonial measures with little change. The legislators were most concerned with the immigration of poor persons due to the burden of poor relief. Therefore, the admission of immigrants was based primarily on financial safeguards.18 These requirements did not end with the ending of state controls over immigration. They became a pattern of rigorous control over immigration as a whole, influencing American immigration policy for centuries.19
B. Changes in the Nineteenth Century

In the last half of the nineteenth century, the United States of America underwent many changes, and so did American immigration law. The United States became a major industrial and imperial power due to the increase in population, the revolution in transportation and communication, and its overseas expansion in Southeast Asia and the Caribbean.20 A consequence of these changes was that the country was wide open for immigration. Labor demand made importation of foreign workers a national issue.21 Therefore, the states began to turn to the federal government for funding and assistance.22 However, with the new influx of immigrants, the states themselves could still not solve immigration problems, which became more and more serious. In the 1870s, the growing importation of Chinese prostitutes and European criminals gained much attention from American citizens and created an immediate pressure on the federal government.23 Thus, in 1875 the federal government established its first direct regulation of immigration with the Immigration Act of 1875. 24 The act made the importation of prostitutes, pimps, and anarchists punishable with fine and imprisonment, but did not provide entry
17 JOHN MACK FARAGHER ET AL., OUT OF MANY: A HISTORY OF THE AMERICAN PEOPLE, 1:214 (5th ed. 2008). 18 HUTCHINSON, supra note 4, at 403-4. 19 HUTCHINSON, supra note 4, at 404. 20 LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 253 (3rd ed. 2005). 21 Id. at 255. 22 DOW, supra note 10, at 6. 23 HUTCHINSON, supra note 4, at 66. 24 HUTCHINSON, supra note 4, at 66.
84
[Vol. 4
exclusion.25 It did, however, successfully prevent Chinese women from immigration, lowering the number of Chinese families and Chinese children born in America. It also created the first policing of immigrants around sexuality.26 Although the 1875 act did not end the Chinese problem as it was termed in America, it began an extension of federal authority, which was developed much further soon afterwards.27 In reality, there had been no effective restriction of free immigration for nearly one hundred years. That is why a large number of Asian laborers, most coming from China, were able to migrate to the West Coast and work in industries such as mining and railroad.28 The Chinese workers were hired over white American workers because they were willing to work at lower wages. Yet, economic fears and the anti-Asian racism among Americans gradually made the Chinese unwelcome.29 These factors eventually led to the Chinese Exclusion Act of 1882 that did not reject all Chinese but prohibited the entry of those who had not previously been in the United States. Diplomatic officers, businessmen, and their families were exempted from the ban.30 In administrative regulations, Chinese businessmen were referred to as treaty merchants, reflecting the fact that both the United States and China had long guaranteed the rights of merchants through treaty. Despite the Immigration Act of 1875, The Chinese Exclusion Act was the first real restriction on free immigration because for the first time, federal law banned entry of an ethnic working group on the premise that it endangered the state and society.31 After the Spanish-American War of 1898, waves of immigrants from various nations and territories flowed into the United States. Hawaii was annexed to the U.S. territory and citizens of Hawaii
note 4, at 131. note 4, at 131. note 4, at 66. ROGER DANIELS & OTIS L. GRAHAM, DEBATING AMERICAN IMMIGRATION, 1882PRESENT 6 (James T. Patterson ed., 2001). 29 Id. at 6. 30 Chinese Exclusion Act of 1882, U.S. Statutes at Large 22 (1882): 58. 31 DANIELS AND GRAHAM, supra note 29, at 8.
25 HUTCHINSON, supra 26 HUTCHINSON, supra 27 HUTCHINSON, supra 28
2013]
85
immediately became American citizens. Thus, Japanese immigration by way of Hawaii threatened white Americans along the Pacific Coast, as had Chinese immigration.32 Since Japan was not a weak country like China but a rising power, Washington and Tokyo agreed that if Washington did not enact legislation barring Japanese immigrants, Tokyo would stop issuing passports valid for passage to the United States or Hawaii for male laborers. This was meant to halt immigration and save face for Japan.33 However, in the first decades of the twentieth century, the Japanese population in the United States increased dramatically. In addition, other Asians such as Koreans and Filipinos also began to immigrate to the United States.34 As a contrast to yellow immigrants from Asia, white immigrants, particularly Western Europeans, entered America virtually without restriction. This is an example of the influence of the doctrine of white supremacy on American immigration policy.35 In 1917, immigration climbed. In an attempt to limit this perceived flood, Congress passed the Immigration Act requiring a literacy test for all immigrants over the age of sixteen. This was the first time the selection of immigrants was based on literacy.36
C. Immigration Post-World War I

During World War I (1914-1918), immigration dropped rapidly. Yet it rose dramatically in the postwar years, causing many immigration problems such as a high unemployment rate and the increase of public charges. The Bolshevik Revolution of 1917 also made Americans fear an invasion of dangerous communists from Eastern Europe.37 The literacy test was not effective in checking the influx of immigrants because it only required a person to read a paragraph in any language or dialect. Thus, in 1921, Congress created the quota system based on national origins,
32 DANIELS AND 33 DANIELS AND 34 DANIELS AND 35 DANIELS AND 36 DANIELS AND 37
GRAHAM, supra note 29, at 8. GRAHAM, supra note 29, at 9. GRAHAM, supra note 29, at 10. GRAHAM, supra note 29, at 15-16. GRAHAM, supra note 29, at 14-15. DANIELS AND GRAHAM, supra note 29, at 17-18.
86
[Vol. 4
judging an immigrant based on his nationality.38 High quotas were set for Eastern and Southern European nations, while those in the Western Hemisphere were not part of the system. The 1921 act did not regulate immigrants from countries such as China and Japan because there already were treaties and agreements with those nations relating solely to immigration.39, 40 Three years later, the Immigration Act of 1924 drastically changed the quotas, creating a formula that limited the annual quota of a nationality to two percent of the number of foreign-born residents of such nationality in the United States. The foreign-born population was determined by the U.S. 1890 census.41 Although the act was meant to maintain racial homogeneity in the United States, only the population of direct European origin was considered in the computation. The descendants of Africans, Native Americans, and Asians were simply ignored.42 Thus, the act was a racist one. In short, the Immigration Act of 1924 significantly decreased immigration to the United States. The quota system continued, and after 1924, restriction on immigration became much more severe than before.43 The Great Depression in the 1930s made the United States less attractive to immigrants. More people left the United States than came at that time. Furthermore, due to a high unemployment rate, immigrants were not favored by the Hoover administration.44 This resulted in greater restriction on immigration. President Franklin D. Roosevelt almost kept this immigration policy even though the New Deal treated immigrants better. In fact, the Roosevelt administration abandoned the repatriation policy, decreased deportations, and provided reliefs for immigrants.45 However, it failed to aid a large number of refugeesvictims of Nazism that
38 HUTCHINSON, 39
29, at 24. David M. Reimers, Recent Immigration Policy: An Analysis, in THE GATEWAY: U.S. IMMIGRATION ISSUES AND POLICIES, 15 (Barry R. Chiswick ed., American Enterprise Institute for Public Policy Research, 1982). 45 DANIELS AND GRAHAM, supra note 29, at 26.
40 DANIELS AND GRAHAM, supra note 41 HUTCHINSON, supra note 4, at 484. 42 HUTCHINSON, supra note 4, at 485. 43 DANIELS AND GRAHAM, supra note 44
supra note 4, at 483. HUTCHINSON, supra note 4, at 483.
29, at 21.
2013]
87
escaped the Holocaust during World War II. The quota system and the fear of public charges and German agents made the U.S. Department of State refuse to grant visas to many Jewish immigrants.46 However, there was a humanitarian leniency of immigration laws post-wartime, perhaps due to guilt for turning away the victims of Nazism during the war. Indeed, in 1944, thousands of Jewish immigrants without valid visas were admitted to the United States by the executive order of President Roosevelt.47 Besides the Holocaust, World War II also caused a manpower shortage in the United States, which raised demand for temporary workers from Mexico and the Caribbean. Those laborers worked either in factories or on farms. Wartime demands led to the Bracero agreements between the United States and Mexico as well as Caribbean nations in 1942.48 In addition, the Chinese Exclusion Acts were repealed in 1943 due to the pro-China foreign policy, the decreasing competition in job markets from Chinese immigrants, and the Americanization of the Chinese Americans.49 However, there was increasing restriction on Japanese immigration after the Japanese attacked Pearl Harbor in 1941.50 Generally, World War II marked a positive turning point in American immigration policy. Due to the war, Americans had more contact with the outside world, and from this regard, they became less racist. Furthermore, international politics played a far more important role in shaping American immigration policy after World War II.51
D. Immigration Post-World War II

In the postwar years, the devastation of Europe, the spread of Communism, and the Cold War resulted in a growing number of refugees from Soviet occupied lands. Because the Holocaust made Americans more sympathetic toward immigrants- especially
46 Reimers, supra note 45, at 16. 47 DANIELS AND GRAHAM, supra 48 Reimers, supra note 45, at 16. 49 Reimers, supra note 45, at 17. 50 Reimers, supra note 45, at 17. 51
note 29, at 31.
DANIELS AND GRAHAM, supra note 29, at 33-34.
88
[Vol. 4
refugees- the quota system became inadequate.52 Thus, in 1948, Congress passed the Displaced Persons Act, the first act establishing refugee policy as opposed to immigration policy. Half a million displaced people, most of them refugees, were admitted to the United States under the statute and its 1950 amendment.53 However, the statutes expired in 1952. Immediately, the Immigration Act of 1952, often called the McCarran-Walter Act, was passed in the spirit of anti-communism during the Cold War.54 The act was fundamentally a restatement of the 1924 Act because it reestablished the national origins quotas. The act was meant to cut down and even eliminate immigration to the United States from Southern and Eastern Europe.55 President Harry S. Truman strongly protested such a discriminatory act and called for a special commission to reexamine the whole issue of immigration. The purpose of the commissions report was to study and evaluate the immigration and naturalization policies of the United States.56 According to the report, America historically has been the haven for the oppressed of other lands and, American national unity has been achieved without national uniformity.57 The report was a call for humanitarian immigration and refugee policies. Indeed, it gained more attention for immigration and weakened the McCarran-Walter Act.58 In 1953, responding to the issue of immigration, Congress passed the Refugee Relief Act that authorized over two hundred thousand non-quota immigrants. The act, for the first time, included Asians as potential beneficiaries. Additionally, thousands of spaces were allocated for Far Eastern refugees.59 In 1956, refugees from the Middle East were included.60 The same year
GRAHAM, supra note 29, at 35. Reimers, supra note 45, at 24. The Displaced Persons Commission stated, For the first time in this century, restrictive and exclusionary legislation was relaxed in order to facilitate the admission of refugees into this country. 54 DANIELS AND GRAHAM, supra note 29, at 35. 55 DANIELS AND GRAHAM, supra note 29, at 36. 56 PRESIDENTS COMMISSION ON IMMIGRATION AND NATURALIZATION, WHOM SHALL WE WELCOME (1953). 57 Id. 58 Reimers, supra note 45, at 30. 59 DANIELS AND GRAHAM, supra note 29, at 38. 60 DANIELS AND GRAHAM, supra note 29, at 38.
52 DANIELS AND 53
2013]
89
witnessed the Hungarian Revolution that caused a mass emigration of freedom fighters. Although sympathy for those freedom fighters was limited in the United States, many of them were eventually admitted under the request of President Eisenhower.61 Similarly, the collapse of the Batista regime and the triumph of the communists in Cuba led to another exercise of large-scale parole authority for Cuban refugees.62 By 1962, refugee programs had become global. Those programs also showed the growing importance of the executive branch in the formulation of immigration policy.63
E. Immigration Post-1960s
In the 1960s, the American economy flourished, resulting in a turning point in American immigration history with an unprecedented number of immigrants coming to the United States. In fact, the Civil Rights Movement resulted in a growing toleration of ethnic minorities and their increasing political power.64 In 1965, Congress passed the Immigration Act eliminating the national origins system and the Asia-Pacific triangle provisions sections in the 1952 Act.65 This act was truly a turning point in American immigration policy. The selection of immigrants was no longer based on their national origin. Family unification was emphasized and family chain migration was facilitated.66 Thus, the new criteria, in order of decreasing importance, were relationship to a citizen or lawfully resident alien, personal qualifications of ability and training, and chronological order of application for admission.67 The act caused a large increase in immigration to America. Thanks to it, many scientists and other professionals immigrated to United States and contributed greatly to the nation. This was the so-called brain drain to America.68 In fact, the Immigration Act of 1965 was meant to redress past grievances of
61 Reimers, supra note 45, at 32. 62 Reimers, supra note 45, at 32. 63 Reimers, supra note 45, at 32. 64 Reimers, supra note 45, at 33. 65 HUTCHINSON, supra note 4, at 66 HUTCHINSON, supra note 4, at 67 HUTCHINSON, supra note 4, at 68
371. 377. 378.
Reimers, supra note 45, at 41.
90
[Vol. 4
European ethnic groups and give more spaces to Asians who had become a part of American society.69 Following the end of the Vietnam War in 1975, there was a considerable increase in the number of refugees from Indochina. Most of them were from Vietnam. The influx of the Vietnamese was the most dramatic single episode involving immigration after 1965. About 400,000 Vietnamese came to America from 1975 to 1980.70 Troubles in the Middle East, like the Iran-Iraq War, contributed to another emigration. Cubans also began a new exodus by boat to Florida in 1980.71 Responding to the new waves of immigration, Congress enacted the Refugee Act of 1980 that simplified refugee procedures and granted the President power to deal with emergencies.72 The act was the last significant liberalization of American immigration policy in the twentieth century. It included a new aspect of immigration policythe recognition of the right of asylum. In fact, a generous refugee policy had become a feature of the U.S. legislation. However, due to the Cold War, refugees from nations with right-wing governments such as Haiti, Chile, and Guatemala did not receive as much welcome or support as the Cubans fleeing the Castro regime did.73 The spread of AIDS, the fear of crime, and economic crises in the 1980s caused many Americans to stop favoring liberal immigration policies.74 Congress formulated a measure to meet those problems. The measure was the Immigration Reform and Control Act of 1986. The purpose of the act was to preserve the value of American citizenship and crack down on illegal immigrants.75 Gradually, the concerns about immigrant crime and border security became a major motif of legislation affecting immigration. Two bills, the Violent Crime Control and Law Enforcement Act of 1994 and the Antiterrorism and Effective
69 DANIELS AND GRAHAM, supra 70 Reimers, supra note 45, at 41. 71 Reimers, supra note 45, at 41. 72 Reimers, supra note 45, at 41. 73 DANIELS AND GRAHAM, supra 74 DANIELS AND GRAHAM, supra 75
note 29, at 44.
note 29, at 47. note 29, at 52. DANIELS AND GRAHAM, supra note 29, at 52.
2013]
91
Death Penalty Act of 1996, were aimed directly at immigrants. They barred legal immigrants from working in many income maintenance programs and further restricted illegal immigration.76 On September 11, 2001, the catastrophic attacks on America opened a new era of tighter controls on immigration. The Patriot Act of 2001 provided that an immigrant could be detained or deported if he was suspected of terrorism-related acts.77 The same year also witnessed the Afghanistan War. This war and the later Iraq War drove the United States into the global war against terrorism. Due to the growing fear of terrorists, American immigration policy has become more stringent than before.78
II. THE CURRENT STATE OF IMMIGRATION

One hundred and twenty-eight years after the Chinese Exclusion Act of 1882, American immigration policy is still not as strict as it used to be. In the late nineteenth century and the early twentieth century, there was growing restriction of immigration. The restriction reached its peak during the first years of World War II; however, once the war ended, the federal government became more open towards immigrants. The Immigration Act of 1965 caused floods of people to enter the United States, and it still continues today. Those floods of people gradually made the federal control of immigration less effective. In fact, the current restriction of immigration is the most ineffective in American history. Immigration problems have become daily issues, disturbing American citizens who believe that illegal immigrants weaken the national economy and security. There are currently more than ten million undocumented aliens in the United States and that population is growing by 700,000 per year.79 Most illegal immigrants are low-skilled workers who have trouble finding secure jobs and can only obtain inadequate or
76 DANIELS AND GRAHAM, supra note 77 FRIEDMAN, supra note 21, at 584. 78
29, at 60.
MARY BETH NORTON ET AL., A PEOPLE & A NATION: A HISTORY OF THE UNITED STATES, 96782 (8th ed., 2008). 79 Tim Kane & Kirk A. Johnson, The Real Problem with Immigration and the Real Solution , HERITAGE FOUNDATION BACKGROUNDER NO. 1913 1 (Mar. 1, 2006).
92
[Vol. 4
crowded housing. Many live on social welfare and often break the law because they want to hide the fact that they are residing illegally. The policy of tenable neglect, which has been the favored approach to immigration in recent years, causes a profound security problem when three out of every 100 people in America are undocumented. Although they pose no direct national security threat, the presence of millions of undocumented migrants distorts the laws, distracts resources, and can create a cover for terrorists and criminals.80 As the economic cost of terrorism is high and real, new immigration laws are necessary to address the security problem.
III. LOOKING AHEAD

What will happen in the upcoming decades? As the United States is facing many economic problems resulting from the Great Recession of 2008, it currently has no capacity to admit an increasing number of immigrants. In addition, terrorism caused the government to place heavier security checks on both American citizens and foreigners entering the country. Congress will likely control the national border to ensure the security of American citizens, and it will likely craft an intelligent guest worker program to take advantage of high-skilled foreign laborers. Although the federal government will not close the border, foreigners will not be able to migrate to America as easily as they could only several decades ago. In an attempt to limit immigration, several states, Arizona in particular, have focused on restricting illegal immigration. The Arizona Senate Bill 1070the strictest anti-illegal immigration measure in recent U.S. history at the time of its passagerequires all foreigners over the age of fourteen to register with the U.S. government if they stay in America for longer than thirty days. Despite being criticized for its harshness, the bill has received majority support in Arizona and nationwide. However, most Democrats have protested the bill, while most Republicans
80
Id. at 2.
2013]
93
supported it. Thanks to this bill, Americans can see how divided they are on the issue of immigration. In the near future, both the federal and local governments are likely to spend considerable time dealing with illegal immigration. Although they will not deport all the illegal immigrants in the United States, they will certainly arrest and deport those considered dangerous to the civil rights of U.S. citizens. As President Obama is preparing a comprehensive immigration reform, policymakers need to evaluate potential policies and their impact on immigration. President Obamas proposal for immigration reform has four parts: first, strengthen border security; second, crack down on companies that hire undocumented workers; third, require undocumented workers to pay proper taxes, learn English, and pass background checks before they can earn their citizenship; and fourth, streamline the legal immigration system for families, workers, and employers.81 According to President Obama, these laws would better protect American citizens, combat fraud, boost the national economy through the influx of high-skilled foreign workers, and treat immigrants in a more humane way.82 President Obamas proposal for a comprehensive immigration reform, which has received bipartisan support, demonstrates American determination in fixing the broken immigration system. It also shows that both the U.S. government and American citizens believe American immigration law plays an important role in the countrys future. As long as the immigration reform could strengthen the economy, enhance national security, and address humanitarian concerns, Congress and American leaders will be able to preserve their countrys heritage as a nation of laws, of opportunity, and of liberty. In conclusion, this study of American immigration law not only provides an overview of its transformation throughout American history, but also reveals the reasons behind major legal changes made by the U.S. government. It helps readers understand the
Fact Sheet: Fixing our Broken Immigration System so Everyone Plays by the Rules , THE WHITE HOUSE, http://www.whitehouse.gov/the-press-office/2013/01/29/fact-sheet-fixing-our-brokenimmigration-system-so-everyone-plays-rules. (last visited Mar. 28, 2013). 82 Id.
81
94
[Vol. 4
fundamentals of American immigration history and contributes to the study of the history of American law. It also articulates the critical importance of immigration law in the U.S. legal system, economy, and security. Furthermore, it supports the argument that American citizens should continuously rethink their treatment of immigrants to realize what has influenced and challenged their principles. From this regard, Americans can see how past immigration laws have dealt with immigration problems and apply new ideas to the immigration system. New laws are made by changes in human perception of the state and society. The refinement in American mentality that has been affected by profound concerns over security threats, economic recessions, and humanitarian situations, will hopefully lead to new immigration policies sensitive to the needs and concerns of both American citizens and immigrants.
2013]
The Pinnacle and Regression of the Insanity Defense
95
T HE PINNACLE AND REGRESSION OF THE I NSANITY DEFENSE

Andrew Wingens*
The insanity defense is most commonly used in criminal trials where the defendant rejects personal responsibility for their actions based on mental instability. While at the turn of the century its definition under the law broadened due to scientific advances and psychological understanding, in recent years it has been significantly narrowed, limiting defendants possibility of turning to it as a defense. This article traces the history of the insanity defense, from its expansion in the early to mid 20th century, to its current limited state. It argues that the current narrowed definition is due in part to public opinion and popular myths, perpetuated by attempted political assassinations such as the one on President Reagan and the more recent attempt on Representative Gabrielle Giffords. This article offers an interesting method of viewing the tension between medicine and law; it ultimately contends that while medicine can indeed influence the law, in the case of the insanity defense public thought ultimately eclipses expert opinion, often stymieing medical advancement.
I. INTRODUCTION
n the mid-19th century, English judges ruled that insanity under the law should be based on whether a defendant could tell the difference between right and wrong when he committed a crime. This narrow legal test of insanity expanded gradually in the early to mid-20th century. The expansion is best illustrated by several cases of the District of Columbia District Court, a federal court that heavily influenced legal debate in the 1950s with the Durham v. United States case. Following the Durham case, which expanded the test of legal insanity to include more psychiatric evaluation, courts began to gradually shrink the definition of insanity. For example, the D.C. court adopted the American Legal Institutes
*
96
[Vol. 4
more limited test in 1973, while President Richard Nixon attempted to abolish the insanity defense through federal law. Nixon failed, but the definition of the insanity defense constricted again in the wake of the attempted assassination of President Ronald Reagan in 1981. This historical narrative illustrates the pinnacle of expansion of the insanity defense in the 1950s and its subsequent regression due to political forces. The legal system has always struggled with the relationship between scientific research and law, but public thought eclipses expert opinion. Through examination of the legal insanity defense, it is clear that the influence of scientific research has caused the insanity defense to broaden. Ultimately, however, public opinion has more effect on the law than does medicine.
II: HISTORY OF THE INSANITY DEFENSE A. The MNaghten Standard

An understanding of psychological factors in the law has existed for centuries. One of the first modern tests of insanity was formulated in England in the mid-19th century. In 1843, Daniel MNaghten, who had a history of delusions, shot and killed Edward Drummond, the secretary to Prime Minister Sir Robert Peel. MNaghtens attempted assassination of Peel was thought to have been caused by his psychotic delusions. MNaghten stood trial and the court found him not guilty on the grounds of insanity.1 He was then forced to live in a mental asylum until he died about two decades later. The acquittal angered the public, so the House of Lords asked specific questions of the judges to determine the test of insanity. From the courts answers, the most significant was a new test of insanity that became known as the MNaghten test. It stated: [T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the
1 WALTER BROMBERG, THE USES OF PSYCHIATRY IN THE LAW: A CLINICAL VIEW OF FORENSIC PSYCHIATRY, 43 (1979).
2013]
97
nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.2 This became simply the right-wrong test. In other words, in order to claim the defense of insanity, the defendant had to not have known the difference between right and wrong when he was committing the crime. Many cases involving insanity in the United States reference English and common law legal doctrines. Davis v. U.S, for example, recounts details of the MNaghten case in order to show the standard set for insanity and the burden of proof required for acquittal.
B. Davis v. United States1897

In the court cases and legal determinations of insanity, two central questions are typically asked. First: what is insanity? Second: is the burden of proof of insanity placed on the prosecution or the defense? Both federal and state courts address these issues and base their decisions on one anothers precedent. A case that provides an answer to both of these questions is Davis v. United States, which was argued before the United States Supreme Court first in 1895, when it was remanded back to the lower court, and again when it was re-appealed in 1897. The first time the case came to the Court, the verdict was overturned and a new trial ordered. On the second appeal, the Court upheld the new trial and affirmed the conviction. The defendant, Davis, did not dispute the facts of the case. He admitted to murdering a man while in a sugar cane crop field in September of 1894. Davis shot the man and then surrendered himself to the local police, explaining the entire situation. Davis asserted an insanity defense, but he was convicted of murder in the Circuit Court of the United States for the Western District of Arkansas. Davis appealed his conviction to the Supreme Court, which heard the case in 1895. The Court, in an opinion written by Justice Harlan, overturned the conviction on the basis of a different burden of proof for insanity. The Court overturned the ruling because the Arkansas Circuit Court did not provide the correct burden of proof in its instruction to the jury. The Circuit
2
Id, at 44.
98
[Vol. 4
Court, according to Harlans opinion, wrote that the defendant bears the burden of proving that he is insane in order to be acquitted. That courts instructions to the jury included a note that the law presumes every man is sane, and the burden of showing it is not true is upon the party who asserts it. The responsibility of overturning that presumption, that the law recognizes as one that is universal, is with the party who sets it up as a defence [sic]. The government is not required to show it.3 Therefore, the Circuit Court put the burden on the defendant to show that he is insane. The opinion of the Supreme Court acknowledges that this decision is firmly grounded in precedent. Englands Lord Chief Justice Tindal asserted in MNaghten, for example, that men are assumed to be sane unless it is proven otherwise. However, Justice Harlan declared that this burden of proof is incorrect because it is not consistent with how the criminal justice system determines guilt. We are unable to assent to the doctrine that in a prosecution for murder, the defence [sic] being insanity, it is the duty of the jury to convict where the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing, wrote Harlan. On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is a reasonable doubt whether he was capable in law of committing crime.4 Harlan thus argued that the criminal system assumes innocence and therefore the prosecution must prove beyond a reasonable doubt that the defendant is guilty. An individuals mental capacity is crucial to the definition of guilt and therefore a jury cannot find a defendant guilty beyond a reasonable doubt without also finding him sane beyond a reasonable doubt. This shifts the burden of proof from the defendant to the prosecution to prove that the defendant was not insane at the time of the crime. This case reappeared before the Supreme Court in 1897. This time, the case had been retried according to the Supreme Courts previous instruction and Davis was once again found guilty. This
3 4
Davis v. United States, 160 U.S. 469 (1895) (LEXIS). Id.
2013]
99
time, however, the question before the Court focused on the definition of insanity read to the jury. The Supreme Court noted that the definition was correct and affirmed the lower courts conviction of Davis. Thus, the Supreme Court in effect affirmed what later became known as the irresistible impulse test, which was added to the basic right-wrong test. The definition of insanity approved by the Supreme Court was: The term insanity as used in this defense means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it and able to distinguish between right and wrong and know that the act is wrong, yet his will, by which I mean the governing power of his mind, has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.5 Therefore, the test of insanity no longer relied only on being able to tell the difference between right and wrong. Any action beyond the control of a persons mind could be called insane.
C. Smith v. U.S.1929
In 1929, the Court of Appeals of District of Columbia affirmed a switch in its framework for this topic when it upheld the irresistible impulse test as an addition to the right-wrong standard in the Smith v. U.S. case. The court cited the Davis case as precedent and went on to rule that the irresistible impulse test can be used to define insanity. The court wrote: The mere ability to distinguish right from wrong is no longer the correct test either in civil or criminal cases, where the defense of insanity is interposed. The accepted rule in this day and age, with the great advancement in medical science as an enlightening influence on this subject, is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresistible impulse.6
5 6
Davis v. United States, 165 U.S. 373 (1897) (LEXIS). Smith v. United States, 36 F.2d 548 (D.C. Cir. 1929) (LEXIS).
100
[Vol. 4
Irresistible impulse means the inability of someone to resist action even though that person knows that it is wrong. Also in this decision, the judges considered the changes in medicine and science as a reason for expanding the insanity defense. This line of reasoning became more common for the courts and ultimately resulted in a further broadening of the defense.
D. The Durham Rule1954

One of the most significant moves in the definition of insanity came in 1954. Using previous cases as precedent, the U.S. Court of Appeals for the District of Columbia Circuit expanded the tests for insanity in the 1954 case of Durham v. United States. In 1953, Monte Durham was convicted of housebreaking in a district court. In his defense, Durham asserted that he was of unsound mind.7 In fact, according to the Appeals Courts opinion, Durham had a long history of imprisonment and hospitalization.8A Naval exam even found that he had a personality disorder and frequent stays in mental hospitals preceded his conviction. His mother and psychiatrist both testified as to his state of mind. However, the lower court found that there was not enough evidence of insanity to overcome the usual presumption of sanity. I dont think it has been established that the defendant was of unsound mind as of July 13, 1951, in the sense that he didnt know the difference between right and wrong or that even if he did, he was subject to an irresistible impulse by reason of derangement of mind, wrote the trial court.9 This understanding thus relied on the irresistible impulse and right-wrong tests of insanity. The D.C. Circuit Court overturned the lower courts ruling for two reasons. One, the Court found that the psychiatric testimony and testimony of the mother were enough to eliminate the presumption of sanity. This would place the burden of proving sanity on the government. The second reason given for reversing the decision illustrates a scientific influence on the court that broadened the definition of insanity. The Appeals Court, in an
7 8 9
Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (LEXIS). Id. Id.
2013]
101
opinion written by Chief Judge David Bazelon, found the rightwrong plus irresistible impulse test insufficient and argued for a new standard of determining insanity and criminal responsibility: This contention has behind it nearly a century of agitation for reform.10 The opinion proceeded to list a sequence of legal opinions that gradually expanded on the definition of insanity. The court pointed to the Smith case as the first step away from a strict right-wrong test. Furthermore, the opinion referenced positions written by commissions and researchers, who thought the rightwrong test was inadequate: The science of psychiatry now recognizes that a man is an integrated personality and that reason, which is only one element in that personality, is not the sole determinant of his conduct. The right-wrong test, which considers knowledge or reason alone, is therefore an inadequate guide to mental responsibility for criminal behavior.11 This signified more deference to medical professionals in determining sanity. The Durham court also stated, By its misleading emphasis on the cognitive, the right-wrong test requires court and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid and irrelevant testimony in determining criminal responsibility.12 But the court added that In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role, not merely one for which they have no special competence.13 Therefore, the court suggested that the law should defer to science for a definition and diagnosis of insanity. And from this reasoning, the court proclaimed a broader test,14 which left more deference to the jury: It [the new test] is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.15 The court explained that the jury would have to determine if there was a causal
10 11 12 13 14 15
Id. Id. Id. Id. Id. Id.
102
[Vol. 4
connection between a mental abnormality16 and the unlawful act. The opinion concluded with an appeal to morality and its place in determining criminal responsibility: Juries will continue to make moral judgments, still operating under the fundamental precept that Our collective conscience does not allow punishment where it cannot impose blame. But in making such judgments, they will be guided by wider horizons of knowledge concerning mental life.17 Thus, the Durham case represented a shift in the courts that allowed for a broader scientific and moral definition of insanity. Durham was one of the first and most explicit examples of a federal court referencing psychiatric evidence as a reason for changing a legal standard, while also giving significantly more weight to psychiatric opinion. The Durham Rule raised controversy in the legal world when it was first established. Their [the peoples] feelings range from respect bordering on love for the rule and what it has done, to absolute hatred for even the sound of the three syllables, explained a report by The Washington Post on the fifth anniversary of the ruling.18 It was largely welcome, however by psychiatrists. In 1957, for example, Judge Bazelon received a Special Certificate of Commendation from the American Psychiatric Association for his decision in the Durham case. The Washington Post reported that the president of the association, Dr. Harry C. Solomon, said, "the Durham [sic] decision had made it possible for a psychiatrist testifying in a criminal trial in Washington to give a realistic appraisal of the total nature of the defendants mental illness.19Again in 1960, Bazelon was awarded the American Psychiatric Associations Isaac Ray Award for his work in bridging the divide between law and psychiatry.20 In 1958, the chief of the Health Departments legal psychiatric services, Dr.
Id. Id. James Clayton, Durham Rule Has Had Unfortunate Infancy, WASH. POST, June 28, 1959, at E1, available at ProQuest Historical Newspapers. 19 Psychiatrist Award Given To Bazelon, WASH. POST, Oct. 1, 1957, at A10, available at ProQuest Historical Newspapers. 20 Psychiatric Award Given To Bazelon, WASH. POST, May 10, 1960, at A14, available at ProQuest Historical Newspapers.
16 17 18
2013]
103
Thomas Griffin, said that the Durham ruling allows a full expression of psychiatric opinion and debate, even on such a fundamental issue as the question of whether every crime is the product of mental diseaseas some might holdor whether there might be cases in which a crime may not be the product of a mental disease, reported the Washington Post.21 Overall, the Durham test gave more power to psychiatrists to influence legal decisions and therefore was accepted as good doctrine by those in the field. However, the reactions of legal professionals to the ruling differed, because it allowed psychiatry to seep into the law. District Court Judge Alexander Holtzoff, for example, was one critic of the rule. According to the Washington Post, Holtzoff declared the Durham decision, general, indefinite and puzzling as to practical application.22 He further criticized the decision because it applied a very loose requirement for insanity.23 In 1966, the New York Times reported that the ruling opened the Pandoras Box of imponderables represented by the sociopathic personalitythe individual who is sane in the usually accepted sense of the term, but who is moved by events in his background to commit antisocial acts.24 According to the Times, the number of insanity acquittals rose from one in 1953 to 74 by 1962.25 In 1970, the Times featured a piece saying that Dr. Joseph Goldstein, a former law clerk to Bazelon and author of parts of the Durham Rule, began to oppose the standard set by Durham. Goldstein, according to the article, believed that the rule unfairly sent all those convicted under the insanity plea to mental hospitals, which were often worse than going to prison.26 However, the Durham Rule was later
21 Durham Rule Hailed by Dr. Griffin, WASH. POST, Mar. 22, 1958, at B2, available at ProQuest Historical Newspapers. 22 James Clayton, Judge Hits Court Rule On Insanity: Durham Decision Is Puzzling, Holtzoff Says, WASH. POST, Dec. 14, 1957, at A1, available at ProQuest Historical Newspapers. 23 Id. 24 What Test on Insanity?, N.Y. TIMES, Oct. 23, 1966, at E6, available at ProQuest Historical Newspapers. 25 Id. 26 Henry Raymont, Modern Legal Test on Insanity Attacked by One of its Drafters, N.Y. TIMES, Aug. 30, 1970, at 55, available at ProQuest Historical Newspapers.
104
[Vol. 4
overwritten when the American Law Institute created a new standard.
E. The ALIs Model Penal Code1962

In 1962, the American Law Institute proposed its own test of insanity in the Model Penal Code: A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.27 The U.S. Court of Appeals for the District of Columbia Circuit accepted this test in the 1972 case of United States v. Brawner. The courts 70-plus page opinion was packed with precedent and an analysis of other insanity defense rulings. It even included a table of contents. Ultimately, the court formulated an insanity test based on the A.L.Is test combined with the definition of mental defect that the court approved in the 1962 MacDonald case. In the evolution of this decision, the court analyzed the Durham case. It has been hailed as a guide to the difficult and problem-laden intersection of law and psychiatry, ethics and science. It has been scored as an unwarranted loophole through which the cunning criminal might escape from the penalty of the law, according to the court.28 In this way, the judges considered the psychiatric and legal communities. The opinion noted that Durham faced criticism because it forced medical experts to give testimony in medical terms but then the jury had to decide cases based on legal terms: Mental disease means one thing to a physician bent on treatment, but something different, if somewhat overlapping, to a court of law.29 There is, indeed, irony in a situation under which the Durham rule, which was adopted in large part to permit experts to testify in their own terms concerning matters within their domain which the jury should know, resulted in testimony by the experts in terms not
27 BROMBERG, supra note 1, at 54. 28 United States v. Brawner, 471 F.2d 29
969 (D.C. Cir. 1972) (LEXIS).
Id.
2013]
105
their own to reflect unexpressed judgments in a domain that is properly not theirs but the jurys.30 By the time of the D.C. District Courts ruling in Brawner, nearly all of the other federal circuit courts of appeals had accepted the A.L.I as the appropriate test of insanity. An additional element to the Brawner opinion is the courts rejection of a movement to abolish the insanity defense. A number of proposals in the journals recommend that the insanity defense be abolished altogether. This is advocated in the amicus brief of the National District Attorneys Association as both desirable and lawful.31 However, the Court rejected the proposal as not a judicial question. Such a reassessment, one that seeks to probe and appraise the societys processes and values, is for the legislative branch, assuming no constitutional bar.32 It was social forces, however, that continued to push for the insanity defense to be abolished.
F. Insanity under Nixon1973

In 1973, a year after the Brawner decision, President Richard Nixon asked Congress to abolish insanity as a defense against murder and related federal crimes.33 Instead, the issue of the defendants mental state will arise during a trial only if his derangement was so serious that the prosecution is unable to prove he had criminal intent at the time he acted, an essential element in making a case in such crimes as murder, explained a New York Times reporter.34 Mental disease or defect does not otherwise constitute a defense, reported the Times in a separate piece.35 The proposal was part of Nixons 680-page Criminal Code Reform Act of 1973.36 The crime bill was part of a larger Nixon strategy to focus on law and order, a focal point of his 1968 campaign. At
Id. Id. Id. Warren Weaver Jr., Nixon Seeking to Abolish Insanity Defense in Crime , N.Y. TIMES, March 19, 1973, at 1, available at ProQuest Historical Newspapers. 34 Id. 35 Nixon Asks Insanity Plea Curb as Congress gets Crime Code , N.Y. TIMES, March 23, 1973, at 19, available at ProQuest Historical Newspapers. 36 Id.
31 32 33 30
106
[Vol. 4
least in part, Nixons focus on crime was a political response to the U.S. Supreme Court rulings in criminal justice cases, which became known as the Due Process Revolution, during the 1960s. The Warren court, for example, ruled for increased criminal rights in Gideon v. Wainwright, Miranda v. Arizona and Mapp v. Ohio. Opposed by liberals and others, Nixons bill, however, was struck down in the Judiciary Committee. The insanity defense was not substantially altered until it became a matter of intense public debate in the early 1980s.
III: INSANITY NARROWED

On March 30, 1981, John W. Hinckley Jr. shot and injured President Ronald Reagan, White House news secretary James Brady, and a Secret Service agent and police officer. In May and June of 1982, Hinckley faced trial and was found not guilty by reason of insanity in the shootings. The central issue at the trial will not be whether Mr. Hinckley committed the criminal acts with which he is charged, but whether he should be excused from responsibility for his actions because of mental illness at the time, explained a reporter for The New York Times.37 The legal test of insanity was still the A.L.I standard, which stated: A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.38 Following the jurys verdict of not guilty by reason of insanity, a judge found Hinckley to be mentally ill and committed him to a mental hospital for an indefinite period of time.39 Public outcry ensued in this example of a highly publicized insanity defense and led to legal changes. Several states began to pass laws limiting the insanity defense; two-thirds of the 50 states reviewed their standards for the insanity
37 Stuart Taylor Jr., Hinckley Trial Opens Today in Washington With Sanity At Issue, N.Y. TIMES, April 27, 1982. 38 BROMBERG, supra note 1, at 54. 39 Linda Greenhouse, Hinckley Given Indefinite Term in U.S. Hospital, N.Y. TIMES, August 10, 1982.
2013]
107
defense and many either shifted the burden of proof or reverted to a stricter test of insanity.40 Idaho, Utah and Montana additionally abolished the defense altogether, although they allowed for limited exceptions.41
A. Insanity Defense Reform Act1984

In 1984, Congress acted under political pressure and passed the Insanity Defense Reform Act. The Act was clearly a reaction to public opinion and therefore represents a backlash created by a court decision that went against popular opinion. In fact, one public opinion poll in 1984 indicated that 66 percent of the nation was in favor of abolishing the insanity defense.42 By contrast, only about seven percent of legal and medical experts were in favor of abolishing the defense.43 The Insanity Defense Reform Act contained a test of insanity that strongly resembled the right-wrong test. The Act stated: It is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.44 Furthermore, the Act put the burden of proof on the defendant to prove that he is insane by clear and convincing evidence. The reform also allowed for the verdict of not guilty only by reason of insanity. The Wall Street Journal editorial page lauded the changes:
The revisions may well be the most important criminal-law reform of this generation. It took a close call on the life of the presiden t to get the fourth major reform. From now on, if a defendant wants to claim 45 the insanity defense, hell actually have to show that hes insane.
RITA J. SIMON & DAVID E. AARONSON, THE INSANITY DEFENSE: A CRITICAL ASSESSMENT OF LAW AND POLICY IN THE POST-HINCKLEY ERA 168 (1988). 43 Id. 44 18 U.S.C. 17 (1984). 45 Editorial, Congress vs. Crime, WALL ST. J., Oct. 23, 1984.
40 MICHAEL L. PERLIN, 41 Id., at 140. 42
THE JURISPRUDENCE OF THE INSANITY DEFENSE 27 (1994).
108
[Vol. 4
The New York Times editorial, however, criticized the reform as rash and irresponsible. The Times noted that the Act returns the insanity test to one similar to the MNaghten test. To do that rejects much of what has been learned about the human mind in the last 150 years. Under the proposed rule, a psychotic mother, so depressed that she believed her daughter faced a life of torture, might be held criminally responsible for an attempted murdersuicide because, though out of control, she knew it was wrong.46 Therefore, the political sentiment forced tests of insanity back to the original right-wrong test. Medicine defines illness, the law, responsibility. The fields long tried to resolve their differences scientifically. After the Hinckley verdict, politics undermined that quest, concluded Lincoln Caplan on the editorial page of The New York Times in 2011.47 This perception highlights the fact that medicine lost out to public opinion following the Hinckley case. Michael L. Perlman explains that the negative public reaction towards the Hinckley verdict and its resulting backlash was caused by myths that citizens and lawmakers held about the insanity defense. U.S. jurisprudence, according to Perlman, is rooted in the ability to punish those who do wrong and the insanity defense appears like a loophole or easy way out. As I will demonstrate, our jurisprudence of mentally disabled criminally defendants has been historically driven by linking mental illness to sin, mental illness to demonic possession, and mental illness to social taboos. The law of criminal responsibility has been anchored by fundamentalist theology, feudal concepts and medieval folklore, he writes.48 In light of this notion, the Insanity Defense Reform Act was Congress reaction to the publics belief in myths about the defense, representing the breakdown of law-and-order. This was the very fear that contributed to Nixons election in the 1970s, after the Warren Court made several crucial decisions reforming criminal jurisprudence. By creating a public backlash, the Hinckley case set back any progress the psychiatric community had made in the law over the previous 150 years.
46 47 48
Editorial, Why Exalt John Hinckley? N.Y. TIMES, Sept. 18, 1984, A, at 26. Lincoln Caplan, The Insanity Defense, Post-Hinckley, N.Y. TIMES, January 17, 2011. MICHAEL L. PERLIN, THE JURISPRUDENCE OF THE INSANITY DEFENSE 29 (1994).
2013]
109
IV: CONTEMPORARY DEBATES

Overall, the tests of insanity broadened in the 1950s but then essentially returned to the MNaghten standard after the attempted assassination of President Reagan due to an adverse response from the people. Modern cases of insane defendants still plague the legal and medical communities. With rapid growth in the field of neuroscience, doctors and lawyers still have room to question the role of medicine in a legal context. After the 2011 shooting of Representative Gabrielle Giffords by Jared Loughner, the public, on a very large scale, had the chance to think of the law and insanity. Although Loughner has not invoked the insanity defense, he has been deemed unfit to stand trial and is battling the states attempt to force him to take anti-psychosis medications. The emergence of neuroscience methods that have the ability to characterize brain behavior have the promise of informing the justice system in issues like the insanity plea. However, these methods have not reached the level of identifying if an individual is a criminal and may never reach that level, explained Dr. Beatriz Luna in the New York Times Room for Debate on the insanity defense.49 But not all experts support the defense. The insanity defense rarely succeeds, and that is how it should be. Nothing we have learned about the brain in the last three decades changes that, wrote Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation. Therefore, the tension between law and medicine still thrives, and the history of the insanity defense provides an interesting method of viewing this dispute.
49
Beatriz Luna, Understanding Voluntary Behavior, N.Y. TIMES, Jan. 20, 2011.

Brandeis University Law Journal Vol. 4

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Brandeis University Law Journal Vol. 4

Uploaded by

Copyright:

Available Formats

The Brandeis University Law Journal is now accepting submissions for its next issue.

Printed in the United States of America

BRANDEIS UNIVERSITY LAW JOURNAL

E CONOMIC L AW & B ANKING REGULATION : L OOKING B ACK , M OVING FORWARD

Undergraduate at Brandeis University, Class of 2014.

Economic Law & Banking Regulation

II. ECONOMICS AND THE LAW: IN THEORY AND IN PRACTICE

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

Economic Law & Banking Regulation

BRANDEIS UNIVERSITY LAW JOURNAL

FISHER V . UNIVERSITY OF T EXAS : T HE FUTURE OF R ACE -C ONSCIOUS A DMISSIONS POLICIES

Fisher v. University of Texas

BRANDEIS UNIVERSITY LAW JOURNAL

Fisher v. University of Texas

BRANDEIS UNIVERSITY LAW JOURNAL

II. UTS 2004 ADMISSION POLICY

Grutter v. Bollinger, 539 U.S. 306 (2003).

Fisher v. University of Texas

Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

BRANDEIS UNIVERSITY LAW JOURNAL

VERSE: ISSUES IN HIGHER EDUC., Jun.

Fisher v. University of Texas

BRANDEIS UNIVERSITY LAW JOURNAL

III. STRICT SCRUTINY A. Purpose

Fisher v. University of Texas

Brown v. Board of Education, 347 U.S. 483 (1954).

BRANDEIS UNIVERSITY LAW JOURNAL

Regents of the University of California v. Bakke, 483 U.S. 265 (1978).

Fisher v. University of Texas

IV. GRUTTER V. BOLLINGER

BRANDEIS UNIVERSITY LAW JOURNAL

Fisher v. University of Texas

OYEZ, supra note 8.

BRANDEIS UNIVERSITY LAW JOURNAL

Sweatt v. Painter, 339 U.S. 629 (1950).

Fisher v. University of Texas

BRANDEIS UNIVERSITY LAW JOURNAL

18 Fisher v. University of Texas 570 U.S.__2013.

Special Examiner Process

22.6 T HE I NTRODUCTION OF THE S PECIAL E XAMINER PROCESS

BRANDEIS UNIVERSITY LAW JOURNAL

Special Examiner Process

BRANDEIS UNIVERSITY LAW JOURNAL

Special Examiner Process

BRANDEIS UNIVERSITY LAW JOURNAL

ACADEMIC F REEDOM , PREJUDICE , AND THE L IMITS OF L IBERTY

2013] Academic Freedom, Prejudice, and The Limits of Liberty

BRANDEIS UNIVERSITY LAW JOURNAL

2013] Academic Freedom, Prejudice, and The Limits of Liberty

BRANDEIS UNIVERSITY LAW JOURNAL