Researchers trying to rate and rank judges have high aspirations. Some suggest that their measures of quality can be used to select judges for advancement, to determine what backgrounds produce the best judges, and to identify models to whom fellow judges can defer. This response to their efforts has three parts. Part I critiques some of the work to date. (The critique is brief because it was the principal subject of a prior Duke symposium.¹) It argues that ranking—and even rating—judges is unlikely to produce the promised benefits; that the measures thus far used by social scientists miss the mark; and that those measures, to the extent that they influence judges, could encourage bad practices. Part II, the heart of this Essay, lists desirable qualities in appellate judges. Perhaps social scientists can find methods to measure these qualities objectively and accurately. Part III concludes, however, that even if social scientists cannot find such methods, efforts to identify the qualities of a good judge can be beneficial if they spur intelligent, respectful dialogue to encourage conscientious judges to improve their work.

I.
Rating and Ranking Judges

Based on my observations and experience, some of the hopes expressed for rating and ranking judges are quixotic. For example, it would be remarkable if the electorate or an appointing authority made decisions any differently if candidates for judicial advancement were ranked by social scientists. Once a candidate passes the “qualified” hurdle, decisions are more likely to be made based on political and interpersonal skills. Likewise, studies of those judges who are ranked highly are unlikely to reveal what backgrounds produce the best judges; my personal experience is that excellent judges come from all sorts of backgrounds. And although law clerks may tend to refer their judges to opinions by highly ranked authors, the judges themselves are unlikely to pay obeisance. Most judges are independent sorts, with sufficient egos not to be dazzled by prestige. They do not adopt an idea just because it comes from a renowned person; they need to be persuaded on the merits.

In addition, I question whether the task of rating judges can be done well, and I worry that defective rating methods can have adverse consequences. Recent research has attempted to develop objective measures of judicial quality. As some participants in this Symposium have observed, however, the research appears to be driven by the availability of data. That is, social scientists have limited themselves to data that can be collected from available sources and then convinced themselves that certain subsets of that data reflect judicial quality, enabling them to rank judges accordingly. But although such measures can be precise, they may not measure what is useful and may encourage questionable conduct, as has happened in response to ratings of educational institutions. For example, I doubt that a judge’s independence can be captured by counting the number of dissents or disagreements with colleagues (either all colleagues or only those of the same political party). A judge who disagrees may simply be close-minded and unable to persuade colleagues. Worse, if a judge’s reputation turns on the frequency of disagreement, those seeking to improve their stature may try to find grounds on which to disagree, rather than making an effort to find common ground. Or if one measures a judge’s contribution to the law by how often the judge is cited, judges (who are well aware that the best way to get cited is to be the first to opine on a subject) may be tempted to produce more dicta and address issues not presented by the parties.

But replacing objective measures by subjective ones is not the answer. Reputation is a measure that feeds on itself, at times with very little of substance to support it. The compliment “highly underrated” can be as useful in describing judges as football players. Evelyn Waugh once observed that one can acquire a great reputation by being “dogmatic, plausible, and vain.”² Judicial reputations are hardly immune from questionable influences.³

II.
Judicial Quality

As the organizers of this Symposium have suggested, rather than starting with measures for which there are data and then deciding what those measures say about quality, perhaps one should reverse the process, deciding what constitutes judicial quality and then exploring how to measure those constituents. This Section responds to that suggestion with a list of what I believe to be desirable qualities in an appellate judge. Others may use rather different measures. Academics may be most concerned with whether the judge’s opinions are good teaching tools and raise interesting ideas. Attorneys may be most concerned with whether their clients win. Politicians may like judges whose opinions reach results that achieve wide popularity.

My perspective, of course, is that of an appellate judge. I will try to answer the question: “What do you look for in a fellow judge?” I am sure that to some extent my views are idiosyncratic. But I believe that each of my criteria would receive the support of a large fraction, perhaps a majority, of appellate judges.

Before I set forth my criteria, I would point out one possible criterion that is absent: to be a good appellate judge, a colleague does not have to agree with me. Any appellate judge with only a modest amount of experience would recognize that if “agrees with me” is a necessary criterion for a good judge, then only one judge would meet the standard. The simple truth is that no judge’s colleagues are as insightful and wise as the judge himself or herself. Criteria should be attainable in the real world.

I will group my criteria under four headings: Treatment of Colleagues, Treatment of Litigants, Treatment of the Law, and Treatment of the Institution. My order of discussion is not meant to suggest order of importance.

A.     Treatment of Colleagues

A good judge treats colleagues fairly. If it is true that ninety percent of life is just showing up, then treatment of colleagues belongs in the other ten percent. Just showing up won’t cut it. Colleagues should do their share of both the glamorous and the nitty-gritty work of the court. The part of a judge’s work to which the public pays most attention is the production of published opinions. But a judge who focuses only on producing published opinions is not a good colleague. To be sure, most judges would like to devote a greater percentage of their time to working on published opinions that raise challenging issues (although taking a break to resolve a routine case can often bring a welcome sense of accomplishing something). But writing a published opinion in a case that does not warrant it (because it says nothing new) wastes paper and the time of those who feel a need to read it. More importantly, if a judge shirks all duties except the preparation of published opinions, the other, less-interesting duties are shared disproportionately by the judge’s colleagues. These duties include participating in calendars of cases that are likely to result in unpublished opinions, disposing of motions, and serving on one of the many committees that handle court rules and administrative matters. Judges have different interests and may prefer some of these tasks to others. Which they select is immaterial; the important thing is to do one’s share.

B.     Treatment of Litigants

The first duty of appellate judges is to decide the cases before them. The process of decisionmaking must be fair, and appear to be fair, to the litigants. The fairness of treatment on appeal, unlike the fairness of treatment at trial, cannot be measured on the basis of face-to-face encounters. Appellate judges rarely are seen by the parties to a dispute; and most of the time they are not seen even by the parties’ attorneys (and then only for a few minutes, in the highly artificial setting of oral argument). Thus, fairness must be assessed by reading opinions. An opinion reflects fairness to the litigants when it has the following features:

1.   Takes Care with the Facts

The factual context of a case should be stated fairly (including “unfavorable” facts) and accurately. If a fact is worth incorporating in an opinion, it is worth setting forth correctly. Not all facts in an opinion are critical to the resolution of the dispute; but it is important to check the accuracy of even background facts, because an opinion that treats facts cavalierly will suggest that the court has been inattentive to the case. Perhaps the easiest way for a losing attorney to convince a client that the court did not give fair consideration to the client’s contentions is to point out that the court omitted important facts or did not get the facts straight.

2.   Sticks to the Record

An appellate court should decide the case on the record produced in the lower court. When the court goes outside the record, it relies on matters that the parties had no opportunity to contest and that the lower court had no opportunity to take into account. To go outside the record to resolve a dispute will thus offend the sense of justice of the party injured by the practice, and will also likely frustrate the trial court that is being reversed on grounds not presented to it.

3.   Addresses the Parties’ Contentions

A party will not feel that the court has acted fairly if the court does not address the party’s contentions on appeal. This is not to say that every contention must be resolved on the merits. Often a contention is mooted by the resolution of another issue. The court also may refuse to consider a contention because it was not preserved below or not properly presented on appeal. In addition, unfortunately, some briefs are so poorly prepared that the court must characterize the party’s contentions differently than the party did, and thus the issues addressed in the opinion may not match the party’s listed contentions. A good judge, however, will take care that the opinion recognizes all properly presented arguments. I can understand why a court may occasionally write something like, “We have reviewed appellant’s other arguments and none has merit”; but I am not fond of the practice. At the least, I would want to state that the appellate court substantially agrees with the lower court’s analysis of the issue.

4.   Is Evenhanded

A judge should be evenhanded, applying the same rule of law in a similar fashion to all parties. A judge may be either strict or lenient about what it takes to preserve an issue; but the judge should not be lenient when considering preservation by a personal-injury plaintiff and strict when considering preservation by a personal-injury defendant. Similarly, a judge may have lenient or restrictive views on when parties are entitled to standing; but the judge should not be lenient for those exploiting mineral resources and restrictive for those opposed to such exploitation. Of course, there are exceptions to the general rule. Pro se litigants should be granted some leeway, so long as the court does not become their counsel. And the government can be expected to toe the line more closely than others. But lack of evenhandedness can be the most telling indication of appellate bias against an individual litigant or category of litigants.

C.     Treatment of Law

Although an appellate court’s first duty is to decide the case before it, the legal doctrine set forth in the court’s opinion is almost always the most important consequence of the court’s decision to society as a whole. It matters little to the general reader of the opinion whether the court erred in its decision because it got the facts wrong, went outside the record, or failed to consider an argument by the losing party. A distinct set of considerations governs whether a judge does a good job in setting forth legal doctrine. A judge’s opinions should satisfy the following criteria:

1.   Describe the Case Law Honestly

Even when precedent does not determine the result in the case, prior case law is likely to impose significant constraints or be persuasive. The reader of an opinion should be able to assume that the author accurately describes the facts and holdings in cases cited in the opinion. Of course, progress (or at least development) in the law often occurs when precedents are re-examined and recharacterized, and a “better” explanation is then provided for the results in those cases.⁴ But there is no reason for a court today to be deceptive about what it is doing in that regard.

2.   Help Develop the Law

A good judge contributes to the development of the law. I do not mean that the good judge always “gets it right.” Early in my career I agonized about whether I was stating the law absolutely correctly. Then I realized that I simply do not have the experience and intelligence to come up with all the relevant considerations, much less wisely evaluate them, in deciding how to frame a rule of law. All I could expect from myself was to work as diligently and intelligently as I could on the matter. I can hardly expect more from others. But even if the judge does not get it right, the judge can make a contribution by sharing the product of his or her diligence and intelligence. Perhaps the most important component of this contribution is clarity. Rather than just pronouncing the result, the opinion should clearly explain how the court arrived at its conclusion. If the judge believes that there are three important considerations supporting the conclusion, the opinion should recite those considerations and explain how they interact to compel the result. Others may later show that there are really four important considerations, but the judge who came up with the first three has made the analysis easier for those who follow. I value judges who advance the law by sharing the product of their diligent, intelligent efforts, even when I disagree with their conclusions. One of the joys of appellate judging is the interchange of ideas that leads to a better opinion than any single judge on the panel could produce; this interchange can be among judges who agree on a result, but the best work often comes when there is a dissenting voice.

3.   Be Consistent

A judge should be consistent in the process of arriving at doctrine. For example, does the judge have a consistent practice in deciding whether to overturn a precedent or to apply stare decisis? A judge could consistently decide to overturn precedent whenever the judge believes the precedent to have been poorly reasoned; but then the judge is not entitled to rely on stare decisis doctrine to criticize fellow judges for overturning a precedent that they believe to have been poorly reasoned. If a judge bases a constitutional doctrine not on the specific language of the Constitution but on the structure created by the document, the judge cannot criticize others for using the same methodology to reach a result opposed by the judge. Likewise, judges should be consistent in applying canons of statutory construction and in using the results of research in the hard and soft sciences.

D.     Treatment of the Institution

The authority of courts in this country is founded on the reputation of the judiciary. An appellate judge has a duty to contribute positively to that reputation. The judge’s work may well advance the reputation of the judge, but it should not do so at the expense of the courts themselves. A few thoughts on what makes judges good in this respect:

1.   Persuasiveness

Courts may have the power to rule however they wish. But their legitimacy is based on the persuasiveness of their opinions. Accordingly, I value colleagues who write coherently, logically, and convincingly.

2.   Respect for the Courts and the Reader

Persuasiveness of opinions may be the most important factor in establishing the legitimacy of judicial decisions, but it is not the only one. The style and tone of an opinion can also advance or detract from the prestige of the deciding court and of the judicial system as a whole. Opinions that carp at or demean other judges or their work can only cause the public to adopt a similar attitude. And attempts at eloquence that degenerate into bloated prose can provide ammunition for the view that the courts have lost touch with the community.

3.   Modesty

The purpose of writing opinions is not to create a reputation for the author. Grand pronouncements, declarations of “new” legal principles, and treatise-like discussions that go beyond the needs of the case may well establish the author’s brilliance. But they are at least as likely to be examples of “writing more than one knows”⁵ and thus provide numerous opportunities for later judges to correct errors and cabin dicta. Such writing can also create an aura of judicial willfulness. Judicial craftsmanship often consists in explaining how the law expressed in an opinion follows naturally from prior case law. The more an author signals that the law expressed in the opinion is essentially the creation of the author’s brilliance, the less the reader will be convinced that the court’s work represents the rule of law rather than the rule of persons who happen to be judges.

III.
Measuring Quality

Now that I have listed what I believe to be attributes of a good appellate judge, one might ask what good the list does. Perhaps some of the listed attributes can be measured objectively. After all, experts have developed ways of determining how much time it takes trial judges to perform various tasks; and the time may come when someone believes it possible to measure whether an appellate judge is doing a fair share of the court’s work. Also, measures that are not totally objective may be developed to evaluate whether a judge treats litigants evenhandedly or develops legal doctrine in a consistent manner. I have my doubts. Yet even without such measures, a list of desirable qualities can serve a useful purpose. The most productive engine for improving judicial performance is the conscientiousness of those who wear robes. If judges and the consumers of their work can exchange views about desirable qualities for appellate judges, then judges who care about their craft (who comprise the great majority of the profession) can consider those views and conduct periodic self-evaluations. I frequently see my colleagues borrow good practices from one another, often without any discussion between them. I am confident that as judges engage in conversation and introspection regarding quality, we will continue to improve the way we do our jobs.

Acknowledgments:

Copyright © 2010 Duke University Law Journal.

Harris Hartz is a Judge on the U.S. Court of Appeals for the Tenth Circuit.

One kind of empirical study of judicial decisionmaking might be regarded as continuous with the broader goal of social science, which I take to be something like understanding human behavior in general. I see the ultimate aim of this sort of empirical inquiry as developing a theory that explains and predicts judicial decisionmaking in roughly the same way a psychological theory might seek to explain and predict other observed phenomena of human behavior, such as the tendency to obey authority. Just as a successful psychological theory of obedience might, among other things, identify the conditions that explain why and predict whether a given subject will obey an order given by an authority figure in a particular context (for example, personal characteristics of the subject, the subject’s relation to the authority figure, the nature of the order, and its expected consequences), one might likewise consider an empirical theory of judging in this vein successful if it allows particular conditions to be identified—for example, political ideology, characteristics of the litigants, particular features of a case’s history, or the provenance of relevant precedent—that explain and predict judicial outcomes.³

Within this broadly defined empirical project of explaining and predicting judicial decisionmaking as human social behavior—one might call it the project of “naturalizing jurisprudence”⁴—there are multiple theoretical perspectives that might be relevant. A single type of observed judicial decisionmaking might be understood simultaneously through the frameworks of sociology, political science, social psychology, cognitive psychology, and perhaps even neuropsychology. Whether or how all these empirical perspectives might be integrated remains unclear. Presumably, a grand unified theory of judicial decisionmaking is no more and no less likely than a grand unified theory of human behavior in general. All of these scientific perspectives may be viewed as having one common, general aim: they seek to provide causal explanations of judicial decisions—theories that identify the causal predicates of observed decisions and do so with predictive power.⁵

A second type of empirical study of judicial performance seems quite different in its basic aim from the project of naturalizing jurisprudence. The goal of this second type of study might broadly be described as identifying quantified measures of good judicial performance—for example, citation counts, dissent rates, and productivity—that can be used to assess and even rank the quality of sitting judges, judicial candidates, and courts. This type of undertaking can be seen as a way of compiling otherwise inaccessible information that would presumably be of significant value to public officials, the citizenry, and judges themselves in evaluating and monitoring judicial performance. Public ratings of judges and courts based on this information might have the added desirable effect of sussing out the opaque criteria that various political actors use to champion particular judges or candidates, insofar as those ratings would exert pressure on such actors to give public explanations supporting any low-rated candidates they seek to promote.⁶

What is the relationship between these two empirical projects of naturalizing jurisprudence and of measuring judicial performance? One possibility is that the need for objective measures of judicial performance is a function of the current infancy of the science of identifying the causes of judicial decisions. That is, objective measures that serve as proxies for judicial quality are only necessary because of the lack robust theories that would predict how a particular sort of judge would likely decide a particular sort of case. If such a theory existed, there would be no point in trying to develop any general measure of judicial quality.

An example may help draw out the intuitive appeal of this conjecture. Suppose one could prove that in any case possessing the set of features F, involving a party with characteristics P, a second party with characteristics D, and given additional specifiable conditions C, a judge with a set of characteristics J will always decide the case in a way that is favorable to the party with characteristics P, whereas a judge lacking J will always decide against that party. One might argue that this postulate, if true, would undermine the relevance of any generic notion of judicial quality—apart from whatever constitutes J characteristics—in the context of cases with features F. If one could predict how any particular judge would decide this type of case, there would be no need for further information about the judge’s qualities, at least in that limited context. And if analogous predictions could be made with respect to cases with features F1, F2, and so on, and judges with characteristics J1, J2, and so on, there would be no more reason to care about measuring judicial quality in the context of those cases. Thus, the more progress empiricists make in the project of reducing judicial decisionmaking to its natural causes, the less relevance any project of measuring judicial performance will have.

One might argue, in other words, that judicial quality matters because better judges presumably will make better decisions. But if it were possible to predict judicial decisions in the manner postulated, then no one would have reason to care about generic measures of judicial performance. There would be no reason to fret over proxy measures of good judicial decisionmaking if social science could deliver a theory that directly predicts how a particular judge or candidate would decide particular kinds of cases.

I believe that this argument should be rejected. This argument’s fallacy involves its reliance on the implicit assumption that empirical measures of judicial performance are, at their core, nothing more than an indirect attempt to accomplish one of the goals of the project of naturalizing jurisprudence—namely, developing a theory with the power to predict the outcome of judicial decisions on the basis of specifiable causal predicates. But the project of measuring judicial performance need not be assimilated to that of theorizing the causes of judicial decisions. Rather, the project is fundamentally normative and evaluative in character. The basic question is not about the causes of decisions, but about what makes a good judge, or what constitute the basic virtues of a good judge.⁷ Whereas the naturalizing project seeks to provide causal explanations for judicial behavior in a manner continuous with social science, the empirical study of judicial performance seeks to make explicit and then reduce to numbers our value judgments about the relative merits of selected characteristics of judicial performance. The ultimate test of a causal theory is its explanatory and predictive power. The test of a measure of judicial performance is ultimately the normative plausibility of its embedded value judgments about the core virtues of a judge and how well it captures those judgments.⁸ The two projects have incommensurable aims.

There are, however, some important caveats. I do not deny the potential relevance of the findings of naturalized jurisprudence to the project of measuring judicial performance. For example, some observers might think that any evaluation of judicial performance should incorporate criteria that capture something like political independence or capacity for “nonideological” decisionmaking.⁹ But what if there were empirical evidence that indisputably established that, as a matter of fact, political affiliation almost always predicts judicial outcomes in certain types of cases? I suspect that if that were the case, there would be reason to doubt whether criteria aimed at measuring political independence could possibly capture anything meaningful. Standards of judicial quality must be tempered by contemporary knowledge regarding the limits of human psychology. This is a consequence of the basic moral premise that “ought” at least in some sense implies “can.” To that extent, the study of the causes of judicial behavior is potentially relevant to the project of measuring judicial quality. My point is not to deny this possible point of congruence, but rather to emphasize that society’s concept of a good judge is not simply given by how most judges in fact tend to behave. Findings in the science of judicial behavior cannot themselves determine the normative standards by which judges should be measured and evaluated. This is a consequence of another basic moral premise, namely, that “is” does not imply “ought.”

The other caveat is that my remarks assume that it is possible to construct a model of a good judge that is at least to some degree independent of considered preferences relating to case outcomes. This assumption means, among other things, that a judgment about whether a particular individual would make a good judge is not simply reducible to a set of predictions about the outcomes of cases that would come before that individual. But what if one were to reject this assumption? What if the concept of a good judge that best reflected societal and legal norms did in fact turn out to be nothing more than a reflection of collective preferences about case outcomes?¹⁰ In that case, I do think that measures of judicial performance that captured the concept might be collapsible into predictions of judicial behavior. That is, if society’s notion of a good judge turns out to be nothing more than a set of predictions about the likelihood of a judge’s reaching particular outcomes in particular cases, then measures of judicial performance would be nothing more than proxy predictions about what judges would probably do in such cases. It might follow, then, that my claim—that the project of measuring judicial performance is fundamentally distinct from the project of determining the causes of judicial decisions—depends on the defensibility of a particular kind of concept of a good judge, namely, one that is not tied to the desirability of specific outcomes in particular cases.

I do not think that this conclusion does, in fact, follow. Even if this sort of cynicism about the concept of a good judge were warranted, I believe that the project of naturalizing jurisprudence would still remain fundamentally different from the project of quantifying judicial performance, because the latter is essentially a normative endeavor in a way that the former is not. Even if every theorized measure of judicial performance turned out to be nothing more than an elliptical predictor of a particular set of case outcomes, every theorist’s proposed measure of judicial performance would still be answerable to questions about its underlying normative conception of a good judge. Empirical theories about the causes of judicial decisions need not answer these questions.

Pretend, for example, that one could show that measures of judicial performance that depend on citation counts tend to highly rank judges who are more likely to invalidate legislation in federal constitutional cases. If that were true, then commentators might observe that these performance measures are empirically reducible to predictors of how judges will decide those kinds of constitutional cases. This finding would not, however, undermine my central argument, which is that the project of empirically measuring judicial performance, in contrast to the project of identifying the causes of judicial decisions, is fundamentally normative. The discovery of a sufficiently tight predictive correlation between citation counts and a disposition to invalidate legislation might support a claim that any interest in the former as a measure of judicial quality is really nothing more than an indicator of a preference for the latter outcome. But the question that this discovery would not and could not answer is whether anyone should therefore stop using the citation count measure as a benchmark for judicial performance. Arriving at an answer would require normative discussion about principles of judicial evaluation—principles that specify why certain considerations should count as legitimate reasons for or against appointing someone as a judge. Any given measure of performance may collapse into a prediction about substantive case outcomes. This possibility does not show, however, that the measurement project itself collapses into a predictive one. Whatever an empirical theory of judicial performance might in fact be measuring, it must always answer one normative question that a purely predictive one need not answer: should the measures in question form the basis for evaluating judges? For this reason, the project of measuring judicial performance is inescapably normative in a way that the goal of naturalizing jurisprudence is not.

Studies of judicial performance that seek to determine judicial quality by quantitative measures (such as citation count) will ultimately stand or fall on the strength of the normative reasons that can be marshaled for valuing as judges the kind of individuals who do well on those measures. Empirical measures of judicial performance ultimately depend on normative claims about what it means for someone to be a good judge, and the strength of any proposed empirical measure is necessarily a direct function of the strength of the justification of those normative claims. Theories about the causes of judicial performance do not depend on these justifications. And no purely empirical project can supply those justifications. That is a task for normative, not empirical, inquiry.

Acknowledgments:

Copyright © 2010 Duke University.

Patrick S. Shin is an Associate Professor at Suffolk University Law School

Larry Alexander and I have written at some length about the function of rules in legal decisionmaking.¹ Briefly, we argue that, from the central perspective of someone designing a legal system, it is desirable that at least some range of legal disputes be governed by general, determinate rules, and that these rules be treated as authoritative. To treat a rule as authoritative is to follow it in all cases that fall within its terms, without further analysis of the underlying purpose or rationale that motivated the rulemaker to announce the rule. From a systemic perspective, authoritative rules are attractive for several reasons. Rules, if they are generally obeyed, can help their subjects avoid errors and biases that distort case-by-case judgment. Rules can also provide coordination if all or most subjects treat them as authoritative. Individuals can act more effectively if they know what others are likely to do, and an authoritative rule makes it possible to predict others’ conduct in situations governed by the rule.

At the same time, the generality of rules often leads to overinclusiveness in application. As a result, rules will sometimes prescribe outcomes that are wrong, judged by the rules’ own purpose or rationale. Yet the overinclusiveness of rules does not alter the conclusion that rules function most effectively when treated as authoritative. If a rule is well designed—that is, if the rule will prevent more errors overall than it will cause through overinclusiveness—then it is best, from the perspective of the system designer, that those who are subject to the rule follow it in every case to which it applies.²

The difficulty with authoritative rules is that it is not at all clear how rational subjects can treat rules as authoritative. If a rule appears to give the wrong answer in a particular case, the rational choice is to disobey. The subject may understand that rules prevent errors of judgment, but if the subject also understands that rules are overinclusive, the subject may nevertheless conclude that his judgment is correct. The subject may also understand the coordination value of rules, and yet conclude that the error that will result from following a rule in a particular case outweighs the loss of coordination that will result from a single act of disobedience. In each case, the subject may be wrong, but this does not make it subjectively rational to follow the rule.³ The consequence is an unbridgeable gap between the perspective of those who oversee the legal system and the perspective of those subject to the system’s rules.

Judges occupy two positions in this account of legal rules. First, they act as rulemakers. Judicial opinions often contain prescriptive statements that are determinative enough to count as rules and are intended to serve as decisional standards in future cases. Assuming the rules are well designed in the sense described above (assuming, that is, that the rules will prevent more errors than they generate over the long run), the legal system will benefit if future judges, as well as future actors, treat them as authoritative: judicial rules, no less than legislative rules, can reduce errors and provide coordination.

In addition to serving as rulemakers, judges also apply rules to the cases litigants bring to court. When judges apply rules, their perspective is similar to that of rule subjects. If a judge is persuaded that the governing rule provides the wrong answer (as indicated by the rule’s underlying rationale) in a particular case, applying the rule will seem both irrational and unfair. Moreover, the judge may find it difficult to give due recognition to the long-term advantages of the rule, because the judge’s attention is focused on the specific facts of the case.

This view of rules and the roles they play in judicial decisionmaking leads to a number of empirical questions about how judges respond to rules. The most basic question is whether judges treat rules as authoritative. Do judges apply rules only when they are persuaded that the outcome of the rule in the case at hand is consistent with the rule’s purpose or rationale (or is correct, all things considered)? If so, the answer to the basic question is no; rules have no real consequences for adjudication, and the various Legal Realist speculations about what drives judicial decisionmaking come into play.

Assuming that judges sometimes do follow rules simply because they are the rules of the system, the next question is how deeply judges are committed (or how thoroughly they are habituated) to following rules. Do judges follow rules without reflection only when the purpose or rationale of the rule has not been brought to their attention? Do they refuse to consult the rationale or purpose of an established rule if the terms of the rule apply uncontroversially to the case at hand? Do they also follow rules in conscious disregard of the rule’s purpose or rationale, when the rule’s purpose or rationale appears to conflict with the result it prescribes?

If the answer is that judges who follow rules do treat the rules as authoritative against their own best judgment about what outcome is best, subsidiary questions arise about the conditions under which judges are willing to suspend judgment and follow rules. For example, the rule in question may be defective, in the sense that it generates more errors than it prevents overall. Alternatively, the rule may be sound, in that it prevents more errors than it generates overall, and yet misfire in a particular case. Here, the question for investigation is whether differences in the overall quality of the rule affect the level of judicial obedience to the rule.

Another subsidiary question is whether differences in the vividness of the facts presented for adjudication affect judges’ responses to precedent rules. Here, the variable is not the quality of the rule, but the salience or affective impact of a seemingly wrong outcome required by the rule.⁴ The question for investigation is whether judges approach rules consistently in different factual settings, or, alternatively, whether their treatment of rules varies according to the exigencies of particular cases.

These questions are obviously hard to answer. Written opinions may provide some evidence of judges’ attitudes toward rules, but only when judges perceive the dilemma of rule-following and also have reason to discuss it in the course of explaining their decisions. This set of circumstances may be rare; in any event, opinions that directly address rule-following are not likely to yield a representative sample of judicial responses to rules.

A more promising approach might be to conduct controlled experimental studies on judicial subjects. The logistics of this form of research are daunting, but work by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich suggests that it can be done.⁵ As an illustration, consider the following stylized example. (Many refinements would be needed to produce a workable test.) A group of judges is presented with a problem case. The defendant is a retired veterinarian who has just moved to a new neighborhood. In his backyard, he keeps a pet giraffe. The defendant treats the animal well and provides it with ample space. The giraffe is a quiet animal with no violent tendencies, and it has no negative sensory effects on neighbors. The defendant kept the giraffe for several years in another state without incident or complaint. Neighbors have sued, claiming the giraffe is a nuisance and requesting an order requiring the defendant to remove it from the neighborhood.

To capture variations in legal rules, some judges might be told that prior cases establish that keeping a wild animal in a residential neighborhood is a nuisance per se. This is, presumably, a sound rule—over the long run, it will tend to prevent harm and offense, though it may sometimes result in the elimination of unobjectionable pets, such as the defendant’s giraffe. Other judges might be told that prior cases establish that keeping a large animal in a residential neighborhood is a nuisance per se. This rule looks too broad: it may do more harm than good over the range of cases to which it applies. Judicial subjects would be asked to decide the case and possibly to comment on the outcome. A significant number of decisions in the plaintiffs’ favor might suggest that rules influenced the judges’ decisions, particularly if the judges signified discomfort with the outcome of the case. If results were roughly the same for both versions of the problem, the inclination to follow rules would seem impervious to the quality of the rule. If, however, outcomes varied according to the version of the precedent rule presented to  judges, this would suggest that judges deciding whether to follow rules are likely to discriminate according to the quality of the precedent rule.

The facts of the experimental problem could also be varied to detect the influence of vivid facts. For example, some judges might not be given any personal information about the defendant; others might be told that the defendant rescued the giraffe from sordid conditions in a private zoo. In this case, variation in decisions would indicate that judges deciding whether to follow rules discriminate according to the salience of the factual consequences of applying the rule.

A second set of questions relates to the role of judges as rulemakers. Frederick Schauer has suggested, very plausibly, that the quality of judicial rules may suffer as a result of the adjudicatory context in which judges work.⁶ In particular, a judge focused on the salient features of a litigated case may adopt a rule that responds to those features, without adequately considering the effects of the rule in other cases that fall within its terms. The judge may assume, in other words, that the present case is more typical than it is—more representative, as a cognitive psychologist might say—of cases governed by the rule. A tame and odorless giraffe, for example, might not typify wild animals kept as pets.  If so, the rule is likely to prove unsatisfactory over time.

The initial question is whether Professor Schauer’s suggestion—that judicial rules may be adversely affected by the adjudicatory setting from which they emerge—is correct. If so, a further question is whether certain features of the judicial process can help avoid or decrease the distorting effects of vivid facts. For example, are judges less likely to err in their choice of rules when the parties present them with an array of purportedly analogous cases that might arise under a proposed rule?⁷

It is surely possible to find examples of this pattern in decided cases, but decided cases are unlikely to provide a systematic overview of the problem. Again, the most promising alternative is probably experimental. Judges might be given the facts of a case together with a selection of proposed decisional rules, the overall quality of which varies inversely with the attractiveness of their outcomes in the case at hand.

Empirical information about judicial responses to rules would be of great utility in studying the judicial process. Obtaining reliable information would, of course, require tremendous empirical ingenuity: designing effective problems is a challenge. Eliciting a serious but candid response from judges is an even greater challenge: judges must somehow be enticed to do what they ordinarily do, without too much reflection on the nature of the exercise. Fortunately, the objective of this short Essay is only to identify the types of information that would be most helpful to theorists interested in decisionmaking in a regime of legal rules.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Emily Sherwin is a professor at Cornell Law School.

Some of the discussions at the Symposium highlighted an area where academics’ perceptions of judging conflict with judges’ actual experiences. Judges and academics view the significance of judicial dissents quite differently. Whereas many of the judges believe that dissents primarily reflect the level of cohesiveness and collegiality of the court, academics typically place much more significance on the meaning of judicial dissents. For example, recent academic studies have asserted that judicial dissents often reveal the influence of judges’ retention concerns,¹ the level of judges’ independence,² or certain judges’ higher propensity for risk taking.³

In contrast, many judges at the Symposium considered academics’ emphasis on judicial dissents to be misguided. The judges maintained that dissents reveal less about judges’ retention concerns, impartiality, or risk preferences, and more about the culture of collegiality on the court. Many of the judges believe that dissents primarily reflect the level of cohesiveness among judges, and that various factors and institutions influence this cohesiveness. For example, they explained that the personal relationships, amount of professional and social interaction, and diversity among judges on a court might influence the level of dissent. Many of the judges hypothesized that courts that are more collegial, either because the judges are better friends or share more common values or backgrounds, should have lower dissent rates. Judges on these courts should be less likely to openly criticize the opinions of their colleagues by dissenting.

Although academics have long recognized that institutions such as opinion-assignment procedures and voting order might influence the propensity to dissent,⁴ empirical studies have failed to consider the impact of collegiality and personal relationships on dissent rates. Thus, in this short Essay, I empirically test whether some of the judges’ assertions are consistent with the data. I test whether various measures of diversity are associated with dissent rates in state supreme courts. I find that diversity in many areas—gender, race, age, religion, home state, and political affiliation—is associated with higher levels of dissent. In contrast, diversity in the jobs that judges had before taking the bench is associated with lower dissent rates.⁵

I also test whether the length of time judges have served on the court is associated with dissent rates. Presumably, judges that have served on a court together for many years would have stronger friendships than newer judges, and thus may be more collegial and less likely to dissent. However, my empirical analysis finds the opposite: the greater the number of judges with lengthy tenures on the court, the higher the dissent rate.

Empirical Analysis

To test the influence of diversity and tenure on judges’ propensity to dissent, I use data from the State Supreme Court Data Archive. This data includes an almost universal sample of state supreme court cases in all fifty states from 1995 to 1998. The data include more than twenty-eight thousand decisions involving more than 470 individual state supreme court justices.⁶ The data include variables that reflect case histories, case participants, legal issues, case outcomes, and individual justices’ behavior. I supplemented these data with institutional variables that describe aspects of each state’s judicial system, and with detailed information about each judge’s personal characteristics, background, and career.

Thus, my data consist of individual judge-level votes in each case before the state supreme courts. I use an ordinary probit model to test whether diversity and tenure on a court influence judges’ likelihood of dissenting. The dependent variable in my estimation is an indicator variable for whether an individual judge casts a dissenting vote in each case.

My estimation includes several measures of the diversity of judges’ personal characteristics and backgrounds on each court. I measure the diversity of each personal characteristic on each court with an index that is essentially one minus a Herfindahl index of each characteristic:⁷

Diversity of personal characteristic = 1 − _j (# of judges of each type j / total # of judges)².

For example, diversity along the racial dimension would be measured with:

Diversity of race = 1 − _j (# of judges of each race j / total # of judges)², where j = [White, African American, Asian, Hispanic, and other].

The diversity measure ranges from zero, when the court is composed of judges of only one “type” (that is, race), to one, when each type is represented equally on the court. Thus, increases in this measure indicate an increase in diversity on the court.⁸

I include variables that measure diversity along several different dimensions: gender, race (White, African American, Asian, Hispanic, and other), age (under 45, 46 to 55, 56 to 65, and over 65), religion (Protestant, Catholic, Jewish, Greek Orthodox, Mormon, and other), home state (from the state where the court is located or from another state), political party affiliation (Republican, Democrat, or Independent), and job held before taking the bench (prosecutor, attorney general, elected official, lower-court judge, or nonelected official).

I also include two variables that represent judges’ tenure on the court. I include the percentage of judges on each court that have served for one year or less; presumably, these judges have not served long enough to develop strong personal relationships with other judges. I also include the percentage of judges on each court that have served for six years or more; if these judges have developed stronger friendships, they may be more collegial and less likely to dissent.

In addition to the diversity and tenure variables, the estimations include a series of judge-level, case-level, and state-level variables that might be related to judges’ propensity to cast dissenting votes. The judge-level variables include an indicator for whether a particular judge is the chief justice on the court, and a variable indicating the number of years until the judge’s next retention.⁹ These variables control for voting changes throughout a judge’s career and term.

All estimations also include various case-level variables that may be related to dissenting votes. First, I include indicator variables for whether a case is a criminal case, a juvenile case, a civil case involving the state government, or a civil case involving private individuals. Thus, the base category is nonadversarial cases, such as cases involving certification and advisory opinions. Finally, I include indicator variables for whether at least one litigant is a business, a person, or a representative of the state government.  These indicator variables control for any relationship between dissent rates and the litigants or legal issues in a case.

Next, I include various state-level characteristics that have been found to be related to dissenting votes. First, I include an indicator variable for whether judges in the state face reelection by the voters. In a previous study, I found empirical results suggesting that judges’ reelection concerns are important influences on their propensity to cast dissenting votes.¹⁰

I also include a variable that indicates whether the state has a lower appellate court, and thus, whether the court has discretionary review to hear cases. Numerous studies report that the presence of an intermediate appellate court increases dissent rates, suggesting that discretionary dockets facilitate the expression of dissent.¹¹

The state-level variables also include indicator variables for whether a court utilizes a random opinion-assignment procedure instead of a discretionary procedure, and whether voting takes place in the order of seniority. Random or rotating opinion-assignment procedures prevent judges from being rewarded or sanctioned for their opposition votes, and thus reduce the incentives for consensus.¹² In contrast, when opinions are assigned by the chief justice, opportunities for rewards and sanctions emerge. Similarly, when voting takes place in order of seniority, the most senior judges may influence junior judges, reducing the likelihood of their disagreement.¹³

Moreover, all estimations include year indicators to capture trends in the likelihood of dissent. In the probit estimations, the t-statistics are computed from standard errors clustered by case.

Table 1 reports the primary probit results. In this table, the top number in each cell is the regression coefficient, which indicates the magnitude and direction of the relationship of each variable with judges’ votes. A negative coefficient indicates that a variable reduces the probability that a judge will cast a dissenting vote; a positive coefficient indicates that a variable increases the probability that a judge will dissent. Under each coefficient is the corresponding t-statistic. Coefficients with t-statistics equal to or greater than 1.96 are considered statistically significant at the 5 percent level, meaning that there is 95 percent certainty that the coefficient is different from zero. A t-statistic equal to or greater than 1.96 is typically required to draw conclusions in hypothesis testing.

The results indicate that diversity among the judges hearing a case is significantly related to the propensity to dissent. The positive and statistically significant coefficients on the diversity variables for gender, race, age, religion, home state, and political affiliation indicate that diversity along these dimensions is associated with higher levels of dissent. These results are consistent with the Symposium judges’ belief that dissent reflects lack of cohesiveness on a court; greater diversity probably implies that the judges have fewer common values and experiences, reducing the incentives for collegiality.

In contrast, diversity in the jobs that judges held before taking the bench is negatively associated with dissent. This suggests that more diversity in professional backgrounds is associated with a reduction in the propensity to dissent. Thus, different backgrounds, at least in terms of the judges’ professional lives, do not appear to reduce collegiality on a court.

Moreover, the results indicate that the more judges with very short tenure on the court (one year or less), the less likely judges are to dissent. Similarly, the more judges with lengthy tenures on the court (six years or more), the more likely judges are to dissent. If lengthy tenure is a good proxy for strong personal relationships among judges, then these results are inconsistent with the experiences of some of the judges participating in the Symposium. Instead of lengthy tenures reducing the propensity to dissent because judges are better friends, my results indicate that lengthy tenures increase the propensity to dissent. Nevertheless, the results are consistent with studies that assert that junior judges feel pressure to not dissent against more experienced senior judges.¹⁴ Thus, even if judges build stronger personal relationships during their time on the court, their inclinations to agree with friends may be outweighed by the confidence and experience that comes with longer tenure on the court.

Several other variables also have statistically significant relationships with the propensity to dissent. Judicial elections, discretionary dockets, random opinion assignment, and seniority voting are associated with increases in dissent rates. In contrast, an approaching retention and chief justice status appear to reduce the propensity to dissent.

Conclusion

In this short Essay, I tested whether the empirical evidence is consistent with the experiences of some of the judges participating in the Duke Law Journal’s Symposium on Evaluating Judging, Judges, and Judicial Institutions. Although my results confirmed that institutional and political factors are important influences on dissent rates, I also found that the levels of cohesiveness and collegiality among judges are important. These results indicate that academic studies of judging can greatly benefit if academics consider the real-world experiences of judges.

Table 1

Notes: The table reports coefficients from a probit model. For brevity, the indicator variables for years, case types, and litigant types are not reported here. T-statistics are reported in parentheses. An asterisk represents significance at the 5 percent level.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Joanna Shepherd is an Associate Professor at Emory Law School.

Early women’s rights advocates relied on formal citizenship status as a basis for demanding the substantive rights that full citizens enjoy—a broad spectrum of political, personal, and civil rights from suffrage to child custody to property ownership.  Out of the Seneca Falls convention in 1848 came the Declaration of Sentiments, a wish list that would serve as the blueprint for a century of women’s rights advocacy.  The civil and political rights emphasized by those early advocates were essential components of equal citizenship, a substantive concept popularized in the 1950s by British social theorist T.H. Marshall.  But Marshall also identified an important third dimension—social citizenship—which, in the United States, involves access to paid work and economic security.

Pregnancy, with physical effects that often, if only temporarily, impede a woman’s working capacity, is increasingly an obstacle to women’s equal social citizenship.  Conflicts between pregnancy and work escalated in number and degree as women expanded their labor force participation in many respects, including working more and longer while pregnant and holding hazardous and physically strenuous (but often well-paying) jobs traditionally reserved for men.

The Pregnancy Discrimination Act of 1978 (PDA) was part of a broad social movement designed to guarantee equal employment opportunities for women, but was specifically designed to dismantle a system in which states and employers freely, though inconsistently, excluded pregnant women from the workplace or restricted the conditions under which they could work based on false assumptions about their capacity.   Unquestionably, the PDA successfully opened workplace doors for pregnant women, invalidating these laws and policies and giving women a weapon against employment decisions motivated by harmful pregnancy bias.  But women’s equal participation in the workforce requires more than just open doors.

The plight of pregnant workers today rests not primarily in false assumptions about their incapacity but in the failure of current law to account for the physical, medical, and social realities of pregnancy. Pregnancy discrimination law provides absolute protection for women only if they retain full work capacity during the period of pregnancy and childbirth.  In cases of partial incapacity, it provides only a comparative right to accommodations that can be limited in nature and difficult to enforce.

My Article argues that equal citizenship requires not only legal protection from unjustified exclusion from the workforce, but also protection for a pregnant woman’s right to work despite the potential temporary physical limitations of pregnancy.  This protection, in turn, means that employers must be required to provide reasonable workplace accommodations to counter the physical effects of pregnancy.

I.
The Realities Faced by Pregnant Working Women

Perhaps the most important fact about pregnant working women today is the dramatic increase in their numbers.  A general influx of women into the workforce beginning in the 1950s (so substantial that they are now poised to outnumber male workers) set the stage for the eventual increase in labor force participation by pregnant women and mothers.  This, combined with a change in attitudes about the proper role of women, fostered greater workforce participation by pregnant women and mothers.  Today, a majority of pregnant women work outside the home, and the vast majority of working women will become pregnant at some point during their working lives.  And women who do work while pregnant stay longer and return sooner than women from earlier eras.

Despite their numbers, however, pregnant women continue to face bias in the workplace. Pregnancy discrimination claims have surged in the past decade, and major companies have found themselves on the receiving end of high-profile lawsuits.  Recent cases show the persistence of stereotyped decision making about pregnant workers, a finding supported by social science evidence.  However, pregnant women may be harmed more by the law’s commitment to pregnancy-blindness than by these residual instances of bias.

There is no inherent conflict between pregnancy and paid work. The workplace has long been plagued by false assumptions about the pregnant woman’s ability to work, but with little attention to relevant scientific data or the advice of individual doctors.  The first science-based guidelines on pregnancy and work, formulated in the 1970s and 1980s, concluded that a woman with an uncomplicated pregnancy can normally work until she gives birth and safely resume work several weeks later.  Since those initial guidelines were published, researchers have undertaken to study further the concrete effects of work on maternal and fetal health.  Despite advances in scientific research, there is still much more to be learned about the effects of work on pregnancy.  We know enough, however, to be concerned about a legal framework that fails to account for the physical effects of pregnancy.

Conflicts between pregnancy and work run both ways—pregnancy can interfere with job performance and job performance can interfere with healthy pregnancy.  These conflicts stem from the inevitable physical changes that accompany a woman’s pregnancy.  Many pregnant women will have difficulty, at various points during pregnancy, performing tasks like heavy lifting, prolonged standing, or rapid movement or complying with inflexible policies about start time, bathroom breaks, or eating on the job.  At the same time, women may encounter hazardous conditions at work even when their own capacity is not impaired.  Pregnant women face three types of potential danger at work: hazardous environmental conditions (contagions, chemicals, etc.), contraindicated physical movements (heavy lifting, for example), and adverse working conditions (night shift work, for example).

II.
Women’s Equal Citizenship

Pregnancy discrimination law, like most contemporary women’s rights issues, has developed under the framework of equality.  The equality model has been enormously helpful in breaking down barriers to the workplace, among other institutions.  But “equality” is hard to define and thus hard to measure, and disagreements over its proper definition have led to significant shortcomings in legal protection for pregnant workers.

This Article thus turns to full or equal “citizenship” as a standard by which to evaluate pregnancy discrimination law.  “Citizenship,” in the words of T.H. Marshall, “is a status bestowed on those who are full members of a community.  All who possess the status are equal with respect to the rights and duties with which the status is endowed.”¹ A “second-class citizen” is someone who is deprived of some essential component of citizenship, despite having an equal formal status.  “Citizenship,” though a contested concept, provides a substantive framework to measure women’s progress towards equality generally, as well as to critique current law’s treatment of pregnant women at work.

The citizenship framework has been criticized for its exclusionary effects, as well as for its focus on rights without an attendant focus on obligations.  This Article acknowledges those criticisms, but defends “equal citizenship” as a useful tool with a long and venerable history in the women’s rights movement.  The exclusionary effects can be addressed both through form—by replacing “citizenship” with terms like “standing” or “belonging,” as many scholars have done—and substance—by committing to the equal “citizenship” of all residents regardless of formal citizenship status.

Despite concerns about its exclusionary effects, the concept of equal citizenship continues to resonate with voters, advocates, legislatures, and judges.  Justice Ruth Bader Ginsburg invoked it in her opinion in United States v. Virginia,² which held that VMI’s all-male admissions policy was unconstitutional: “neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”³ It is this conception of equal citizenship that fuels this Article’s evaluation of current pregnancy discrimination law.

Work is an important component of equal citizenship, and the central feature of so-called “social citizenship.”  Work facilitates political participation, but also has tangible benefits for the individual, including, importantly, the potential for economic security. Women’s quest for social citizenship began in earnest in the 1960s, when advocates targeted a wide range of exclusionary policies and practices that hampered women’s employment opportunities.  Key legislative successes like the Equal Pay Act, Title VII, and Title IX, and significant litigation victories establishing a broad scope for these laws, were dovetailed by the Supreme Court’s embrace of a constitutional right of sex equality.  These developments were fueled by a stark change in social attitudes about women’s proper place and gave rise to a dramatic opening of workplace doors to women.

Despite the intense (and often successful) efforts feminists have deployed to increase women’s access to the workplace, it would be misleading to suggest that there is no disagreement among them about the importance of paid work or its centrality to social citizenship.  While many academics and popular press authors have urged women to embrace paid work as a pathway to independence, others have cautioned that the tendency to valorize work narrowly reflects the perspective of white or upper/middle class women and that the emphasis on work neglects the disproportionate amount of family and care work performed by women.

Regardless of whether one thinks we should push for equal valuation of unpaid work, equal access to meaningful paid work remains an essential, minimum component of equal citizenship.  Yet pregnancy presents a challenge: it often renders women temporarily less capable of performing their jobs, but not necessarily interested in converting their efforts to unpaid labor during or after pregnancy, even if society equally valued that work.

III.
Pregnancy Discrimination Law: From Exclusion to Access

Legal protection against pregnancy discrimination at work was a 1970s invention that brought about a stark turnabout in the treatment of pregnant working women.  An era of exclusion gave way to an era of access, as a legal regime that once permitted employers to bar pregnant women from the workplace with impunity was replaced with one that mandated pregnancy-blindness.

Traditionally women worked at the whim of employers, many of whom excluded pregnant or fertile women.  In 1908, the Supreme Court gave its imprimatur to exclusionary policies designed to protect women’s reproductive function in Muller v. Oregon,⁴ an opinion that led to decades of state protectionist legislation and exclusionary employer policies.  Even after Title VII was adopted, and heightened scrutiny for sex-based classifications was established, the Supreme Court twice gave its approval to laws and policies that discriminated against pregnant women.⁵

Federal pregnancy discrimination law comes from three sources.  First, despite ruling against an equality-based right for pregnant workers, the Supreme Court granted a limited due process right against presumptions of incapacity due to pregnancy.  Second, Congress adopted the PDA in 1978, which, in a first clause, adds pregnancy to the definition of prohibited sex discrimination and, in a second clause, requires that employers treat employees with pregnancy-based disability the same as those “not so affected, but similar in their ability or inability to work.”  Finally, Congress adopted the Family and Medical Leave Act of 1993 (FMLA), which grants a gender-neutral right to limited unpaid leave for illness or family care, which can be used, as needed, for disabilities associated with pregnancy and childbirth.

Feminists split over the proper interpretation of the second clause of the PDA.  The “equal treatment” feminists urged formal equality—pregnant women should receive only what other temporarily disabled workers receive—in order to promote better conditions for all workers and to avoid promoting harmful gender stereotypes.   An opposing coalition, in contrast, urged a substantive equality model, advocating for accommodation of pregnancy and childbirth when necessary to ensure equal outcomes for men and women in workplaces, whether other forms of temporary disability were accommodated or not.  The latter view won out, as the Supreme Court interpreted the second clause, in California Federal Savings & Loan Ass’n v. Guerra,⁶ as a floor, rather than a ceiling, on the benefits that could be made available to pregnant workers.

This ruling, in effect, leaves pregnant workers at the whim of their employers in many cases.  If they provide leave, accommodations, or benefits to temporarily disabled workers generally, they must also provide them to pregnant workers.  Employers can favor the needs of pregnant workers over those of other temporarily disabled workers.  But, if employers are stingy across the board, pregnant workers have little to support a demand for better treatment regardless of necessity.  A “no leave” policy, for example, could be upheld, subject only to the minimal protections of disparate impact law, even if it effectively means that all pregnant employees lose their jobs when it comes time to give birth.

Through these various legal components, pregnant workers have a right to an individualized assessment of their capacity (as opposed to the traditional stereotyped assessments that presumed them incapable by the mere fact of pregnancy).  They also have a right to work if fully capable and their “capacity” cannot be defined by potential risk to fetal health.  This is, in effect, a right of pregnancy blindness—employers must look past the pregnancy and treat them solely based on what they can or cannot do.  When fully incapacitated by pregnancy or childbirth, employees may have the right to leave—a comparative right to leave under the PDA and an absolute right, if eligible, under the FMLA.

IV.
Workplace Accommodations and the Failure of Social Citizenship

Together, these constitutional and statutory developments spelled the end of a number of traditional policies, practices, and stereotypes that had kept pregnant women from entering the workforce or continuing in their jobs during or after pregnancy.  The pregnancy discrimination framework, however, is as notable for its gaps as its coverage.  When only partially incapacitated by pregnancy, a worker’s rights are much more tenuous, and the legal regime often produces unsatisfactory results.  The Americans with Disabilities Act (ADA) generally does not apply to disability arising from normal pregnancy or childbirth.  Likewise, the Due Process Clause, while it has been read to prohibit pregnancy-based stereotyping, does not support any right to workplace accommodations for pregnant workers.  The PDA does not provide pregnant employees with the absolute right to reasonable or necessary accommodations.  An employer cannot deny accommodations because of pregnancy, but nor must it make even minor accommodations, even if the consequence is that the pregnant woman must leave her job.

The pregnant woman’s right to workplace accommodations is comparative, based on the treatment of other temporarily disabled workers.  This right, however, has proven quite limited in practice.  The search for a comparator can be elusive.  Recent cases challenging “light-duty” policies reveal another limit on the comparative right of accommodation.  Many employers reserve light-duty assignments (for example, desk duty for a police officer) for employees injured on the job.  All but one court has upheld such policies, even though this ensures that pregnant workers are always excluded.

In theory, disparate impact law should compensate for some of the shortcomings of the PDA’s comparative right of accommodation by invalidating some of the harsh employment policies that make it difficult for women to work through pregnancy.  But, again, in practice, it has not proven helpful.  Although courts acknowledge the existence of disparate impact liability, many refuse to apply it in its true form to pregnancy cases.  They reject its use to the extent it might result in a pregnant worker being exempted from a general workplace policy or gaining access to an accommodation not otherwise available.  Even when courts are willing to consider disparate impact claims in true form, plaintiffs in pregnancy cases almost always lose because they lack sufficient statistical evidence or are unable to identify an employment “practice” that produced the impact.

The limits on the comparative right of accommodation and disparate impact protection mean, in effect, that pregnant women in many cases do not have the right to continue working if pregnancy has even minimally impaired their capacity.  For those without available leave, the failure to provide reasonable accommodations is tantamount to termination.  Even for those with leave, pregnancy can bring dire economic consequences (especially if the leave is unpaid) and lost opportunities for advancement.  The lack of accommodation means that women will continue to lose ground in the occupations in which they need to gain it most—those traditionally dominated by men.  Studies show that women are less likely to continue working through pregnancy when they hold jobs that require physical exertion.  Moreover, because pregnancy typically comes early in women’s careers, the repercussions of lost training, wages, seniority, or opportunities for advancement can be felt for decades. Pregnancy simply exacerbates the tendency of predesigned and inflexible workplaces and jobs to exclude women as they seek to integrate across the occupational spectrum.

These scenarios bring us back to the initial question posed—whether the pregnancy discrimination framework precludes women from attaining equal social citizenship.  This Article argues that accommodation is the link between pregnant working women and equal social citizenship.  The failure of current law to acknowledge a pregnant woman’s right to work despite temporary, partial impairments or risks systematically undermines the ability of women to attain workplace equality.  It shortcuts the careers of individual women, exacerbates the glass ceiling many women already face, and, perhaps even worse, reinforces a long history of occupational segregation.  This, in turn, is a failure of equal social citizenship because it renders women less able than men to capitalize on their innate talents and capacities because of a unique biological function.  It breathes continued life into a pattern, noted by Justice Ginsburg in her recent dissent in AT&T v. Hulteen, that “[c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” ⁷

Accommodation mandates come with risks—resentment, cost, and a deterrent to hiring women, to name just a few.   However, we can learn from mandates in other contexts.  The ADA also provides a natural model for providing workplace accommodations, although judicial interpretations have undermined its intended effects.   Some states have taken a more targeted approach, imposing narrow, but important, pregnancy accommodation requirements on employers.  These mandates demonstrate that we can craft an accommodation right that serves the needs of pregnant workers while minimizing adverse consequences.

Conclusion

The story of pregnant women and work in the United States is an unfinished one.  The current pregnancy discrimination framework has been tremendously important in opening up the American workplace to women, most of whom will both work and become pregnant at some point.  But the same emphasis on individual capacity that was crucial to dismantling the long-held stereotypes about the limitations and incapacities of pregnant women now serves as a stumbling block to future progress towards workplace equality.  The lack of a basic right to reasonable accommodation of pregnancy-related disability overlooks the real physical effects of pregnancy and childbirth on women and their employment opportunities.  Doors have been opened, but not enough has been done to ensure pregnant women can make full use of their innate talents and capacities once inside.  A genuine commitment to equal social citizenship can be carried out only by a legal framework that accounts for both the capacity and the potential incapacity of pregnant women.

Acknowledgments:

Copyright © 2010 Georgetown University Law Center.

Joanna L. Grossman is Professor and John DeWitt Gregory Research Scholar at Hofstra University School of Law.

But if citizens and noncitizens may be treated differently, how differently may they be treated? Most scholars answer this normative question on the basis of doctrine or political theory. Doctrinal accounts attempt to derive noncitizens’ rights from constitutional and legal traditions. Political theories derive noncitizens’ rights from various theoretical conceptions of democracy and citizenship.

Largely overlooked, however, are equally important descriptive questions: Why do governments, such as the U.S. government, grant any rights to noncitizens at all? Why have the rights of noncitizens improved over the years? And why do they still fall short of the rights enjoyed by citizens? If we assume that a state’s policy toward noncitizens reflects that state’s own interests, what policies would we predict states to have, and how do we explain variations across states and across time?

 
I.
The Structure of Migrants’ Rights

Migrants’ rights vary along two dimensions. First, they differ in their scope. In the United States, migrants are classified in many different ways, and each class enjoys a different bundle of rights. People who enter the country illegally have certain basic rights—to life, to property, to minimal process—but little more. People who enter legally have more generous rights, but their rights are still more limited than those of citizens. For example, tourists and the spouses of certain migrants have the basic rights to life, property, and criminal and civil process, but they do not have the right to work for pay or to remain in the country beyond the period of their visas. Migrants with work visas have the right to work in certain positions but often no right to change jobs.

Lawful permanent residents have the right to work as well as the other rights described above, but they do not enjoy the right to vote. And whereas citizens cannot be “removed” (exiled), lawful permanent residents and other migrants can be removed (deported) for committing certain crimes, posing a security threat, and so forth. Lawful permanent residents are granted an additional important right: the right to become citizens after they have resided in this country for five years, passed a citizenship exam, and satisfied certain other conditions. Some migrants, therefore, but not others, are granted the right to acquire full citizenship rights through naturalization.

Migrants’ rights also vary along a second dimension: their “strength,” or, more precisely, the difficulty or ease with which the government can change them. At one extreme, rights can be administrative: The executive branch has the sole discretion to determine the rights of migrants and can change them at any time. Rights can also be statutory: Congress determines and changes them. At the other extreme, rights can be constitutional, in which case they may be changed only by amendment or through judicial interpretation of the Constitution. Migrants enjoy all three types of rights. For example, the Constitution sets some basic minima for process rights, which statutes and administrative regulations have elaborated on and extended.

Our full-length Article investigates variations in both the content and strength of migrant rights. It also analyzes one type of right, the right to vote, that cuts across these two categories. Voting rights (as well as other rights of political participation) are important citizenship rights. The holder of voting rights has the power to affect political outcomes by influencing the selection of public officials. In one sense, voting rights are an aspect of the scope of a migrant’s rights: Migrants who can vote have rights that other migrants lack. In another sense, voting rights also affect the strength of a migrant’s rights, including the strength of the voting right itself. Although in theory Congress could eliminate a migrant’s voting right by repealing the statute that created it, doing so would be more difficult than repealing other types of migrant rights because migrants would likely vote against politicians who appeared inclined to repeal their voting rights.

In the United States, migrants rarely gain voting rights upon arrival, and when they do, they are only at the municipal level and are limited. However, in the past, migrants were granted more substantial voting rights at the state level, as we will discuss. Even today, voting rights remain an important aspect of the incentive system used to lure migrants to the United States: Migrants are promised that if they qualify for citizenship and naturalize, they will have the right to vote. We can thus think of contingent, deferred voting rights as an aspect of the bundle of migrant rights.

 
II.
An Optimal Contract Framework for Migrants’ Rights

To explain the content and strength of migrant rights, we borrow the optimal contract framework developed by economists to analyze contractual behavior. Although migrants do not enter into actual contracts with the U.S. government, their relationship with the U.S. government is analogous to a contractual relationship—both sides gain from an implicit deal. The migrant enters the United States, invests in learning English and aspects of American culture, and obtains a return on this investment in the form of higher wages, a share of public goods, and other benefits. The U.S. government—which we use as a stand-in for native citizens—gains from its contracts with migrants in diverse ways: Increased tax revenues from immigrant workers help finance public goods, immigrant labor reduces average labor costs, and the immigrants contribute to cultural and social life.

In thinking about these issues, most people focus on the question of how the government should select among migrants. The world presents a large pool of potential immigrants, and states have to figure out how to separate those immigrants it considers desirable from those it does not. This debate tends to focus on the desirability of certain characteristics such as labor skills and familial relationships with American citizens. But there is another problem of equal importance: how the “migration contract” between the migrant and the U.S. government should be designed once a particular migrant is selected. The main problem for the government is that a migrant who is highly desirable at the time of migration might become undesirable at a later time—for example, if increased unemployment during a recession makes immigrant workers less helpful to the economy. All else equal, the government would like to retain the option to remove any migrant any time events change such that the benefits from the migrant’s presence no longer exceed the costs.

However, the problem with such flexibility is that a migrant will not enter a country, or will enter but decline to sink roots in that country, if she knows that she can be removed at any time. Countries often do best when their immigrants make what we will call “country-specific investments”—like learning the dominant language and developing social networks—but a typically risk-averse migrant will not make such investments if she can be easily removed. Moreover, migrants may worry that the government will wield its removal power opportunistically, trumping up security threats or exaggerating financial downturns in order to justify deportation.

Since governments want migrants to make country-specific investments, it is in their interest to guarantee a migrant’s right to remain even if bad events occur—at least up to a point. It will therefore sometimes be in a nation’s interest to tie its own hands so that it cannot use its deportation power opportunistically. The optimal migration contract balances the government’s interest in flexibility and the migrant’s interest in tying the government’s hands. It can do so in two ways: (1) by granting migrants more or less generous rights, and (2) by making it harder or easier for the government to change those rights.

 
III.
Different Rights for Different Migrants

Our approach helps expand the possibilities for legal design by showing why different packages of rights might be conferred on different groups of migrants. Much existing scholarship suggests that there is a relatively static, hierarchical relationship among various migrants’ rights. On these accounts, rights increase in lock-step with increasing “membership” in the Receiving State. Rights also tend to be arranged hierarchically, with rights like political participation almost always associated with higher levels of membership than rights like occupational freedom. Our account abandons this idea of a lexical relationship among various migrants’ rights.

We also abandon the assumption common in the literature that all migrants should be accorded the same rights. Migrants come with various goals: Some hope to come and work in the Receiving State for a short time, others hope to remain for a long time but expect eventually to return home, and others intend to remain in the Receiving State permanently. Each of these groups of migrants will value rights differently: For some, the right to remain for a guaranteed period of time will be far more important than occupational freedom, while others will have the opposite preferences. As a result, our approach makes it possible to see why we should expect variations among migration contracts—variations that are hard to evaluate within the literature’s existing frameworks.

Our full-length Article builds on the economic approach to immigration law that we developed in an earlier article.¹ In this approach, the relationship between the Receiving State and the migrant is treated as though it were a contractual relationship, which allows one to use ideas from the optimal contract literature in economics. As in all contractual relationships, the two parties have partially overlapping interests. States gain by allowing migrants to enter, and migrants gain by entering states. But each side of the transaction does better by retaining flexibility unavailable to the other. The contracting problem is to choose “terms”—that is, immigration laws—that maximize the joint benefit.

 
IV.
The Precommitment Problem and the Optimal Migrant Contract

A central theme of our full-length Article is that the optimal migration contract between migrant and government—that is, the package of rights that the migrant receives—is shaped by a central precommitment problem: Governments seek to attract migrants with desirable skills and characteristics, but governments also want to maintain flexibility so that the migrants can be expelled or otherwise regulated if circumstances change. However, if governments maintain flexibility, migrants will be reluctant to enter and invest in their relationship with the Receiving State. The optimal migration contract depends on (and hence changes with) a host of exogenous variables. Rights will be weaker, for example, when governments expect that the risk of future adverse events is high. They will be stronger when governments gain a net benefit as migrants make country-specific investments.

Our full-length Article provides a more comprehensive treatment of these exogenous variables and the ways in which they affect the optimal contract between the migrant and the Receiving State. With an understanding of the relationship between these variables, one can explain some of the variation in the rights granted to migrants.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Adam B. Cox is a Professor of Law at the University of Chicago Law School.
Eric A. Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School

This Legal Workshop Editorial is based on the following Law Review Article: Adam B. Cox & Eric A. Posner, The Rights of Migrants: An Optimal Contract Framework, 84 N.Y.U. L. REV. 1403 (2009).

Today, there are new fears that plaintiffs’ lawyers have co-opted securities class actions by paying-to-play. “Paying-to-play” describes the practice of lawyers giving campaign contributions to public pension funds’ political leadership in order to gain favorable consideration by the funds for appointment as class counsel. Many reforms have been proposed and enacted in response to paying-to-play fears. Aside from a few anecdotal reports, however, no examination of campaign contributions from plaintiffs’ lawyers to elected officials exists in the legal literature. This Editorial returns to the first stage of analyzing paying-to-play that many commentators have skipped: whether law firms are contributing to investment funds’ leadership at all. If law firms are not contributing, there can be no rational fear of paying-to-play. My study finds that law firms do indeed contribute to the investment funds that select them as lead counsel.

 
I.
The PSLRA and Paying-To-Play Fears

The PSLRA established a rebuttable presumption that the lead plaintiff is the plaintiff with the largest financial interest in the relief sought by the class. Congress’s theory was that the plaintiff with the largest financial stake would have the greatest incentive to manage the case competently and achieve the highest possible settlement. The PSLRA also guaranteed the lead plaintiff the power to select and control class counsel.

Congress explicitly targeted institutional investors to be the new lead plaintiffs in securities class actions because of their large financial interests and their experience as investors. While from 1997 to 2000, only between ten and twenty institutional investors were named as lead plaintiffs each year,¹ the number grew to thirty-one in 2001 and then to fifty-six institutions in 2002.² In the period covered in my study, 2002 to 2006, 41% of cases had an institutional investor as lead plaintiff.

The first fears over paying-to-play surfaced in media reports in 1998. The legal academy became concerned shortly thereafter, announcing the practice as a problem and then proposing solutions. However, my research revealed only two empirical studies of paying-to-play in the legal literature. Neither study examined lawyers’ campaign contributions; rather, they both used indirect means of investigating paying-to-play.

The lack of empirical evidence of paying-to-play, however, did not stop courts, the American Bar Association, pension funds, Congress, and state legislatures from discussing and implementing reform proposals. Reform may be necessary if paying-to-play indeed negatively affects securities class actions. However, reforms are not without cost; all efforts at reform make tradeoffs in an attempt to insulate pension fund officials from lawyers’ campaign contributions. Generally, there have been four proposals to combat the perceived paying-to-play problem. The first proposal calls for the lead plaintiff fund and the filing law firm to disclose to the court any payments made by the lawyers to the fund, enabling the court to decide whether the fund or firm are fit to serve. The second proposal is merely a bright-line version of the first: A lawyer is barred from representing a fund if the lawyer made a campaign contribution to the fund’s officials. The third proposal requires that elected officials be removed from pension funds’ governing boards and be replaced with unelected leadership. The final proposal is that courts, rather than the lead plaintiff, should select lead counsel through an auction.

The first two proposals would limit lawyers’ participation in the political process. Even if courts had discretion to allow lawyers to continue to serve, the threat of losing a client may be enough to silence lawyers’ political voices. Restructuring pension funds’ leadership—as required by the third proposal—also has costs. Public pension funds likely have elected officials in leadership positions to allow for state government control of the funds. This provides for democratic accountability with regard to the funds’ successes and failures, including their litigation decisions. Finally, as others have noted, a court-run auction to determine lead counsel “is inconsistent with the language of the PSLRA.”³ The PSLRA instructs the court to appoint the “most adequate plaintiff,” not the most adequate law firm, and then allows that plaintiff to choose the lead counsel. Replacing the lead plaintiff’s selection of counsel with that of the court undermines the PSLRA’s intent to empower the lead plaintiff to select and monitor class counsel.

 
II.
Data and Findings: Law Firms’ Contributions to Lead Plaintiff Funds

I examined the 1076 securities class actions filed in the United States from 2002 to 2006. I identified the 445 cases where an institutional investor was at least one of the plaintiffs filing to be lead plaintiff and then narrowed my dataset to the seventy-five cases where the lead plaintiff was an institutional investor with at least one state-level elected official, or person appointed by such an official, on its controlling board. I then identified the membership of the controlling boards of the institutional investors at the time the case was filed. Next, I identified the law firm or firms that each fund selected as counsel in each case. Finally, I used state-level campaign-finance filings to find campaign contributions from the plaintiffs’ law firm (or its lawyers) to any elected official affiliated with the pension fund that selected the firm as counsel. My campaign contribution dataset spanned both before and after the filing of the cases—from 1998 to 2008—in order to capture contributions that could come before law-firm selection as an enticement, or after as a reward. I included contributions made to the relevant candidates directly and also contributions to their political parties’ campaign committees under the theory that candidates may look favorably on contributions to their parties, and donors may seek to exploit such contributions.

I found that in a majority of cases where paying-to-play was possible, at least one law firm made a political contribution to an elected official affiliated with a lead plaintiff pension fund in the case. Of the seventy-four cases in my dataset, a law firm affiliated with a case made a political contribution to a pension fund in forty-eight cases, or 64% of the time.

Because there was sometimes more than one law firm or pension fund filing in each case, and my data grouped these firms and funds together, there were 184 total opportunities for pension funds and law firms to be matched through political contributions. Firms made contributions in seventy-eight of those 184 opportunities, or 42% of the time. Of all the total contributions from a particular firm to officials associated with a particular fund, the mean was $58,942 and the median was $9,300.

 
III.
Discussion and Future Areas of Research

My data confirms that plaintiffs’ law firms are contributing to the pension funds that hire them. These contributions form the baseline of the paying-to-play theory. My study thus provides the first set of paying-to-play data on which future scholarship can build. Some may argue that these contributions themselves create an appearance of impropriety that should be avoided. Others suggest that the focus should be on the actual performance of class counsel, no matter how selected.⁴ The resolution of this question is beyond the scope of this Editorial.

The debate over paying-to-play involves more than a concern over political contributions. The paying-to-play theory has three basic elements: (1) law firms are giving political contributions to officials affiliated with pension funds’ boards; (2) the firms are doing so with the intention of earning favors from the funds; and (3) pension funds are in fact giving those favors by selecting contributing firms as lead counsel in class action cases.

While this Editorial has provided some evidence of the presence of element one, we must examine elements two and three to understand fully the paying-to-play problem and to formulate an appropriate policy response. The factors listed below are not meant to be an exhaustive list of all important matters but rather a helpful guide for future researchers of what I consider to be the most interesting quantifiable factors surrounding the paying-to-play problem.

 
A.     Geography

Pension funds might be likely to select local law firms with whom they are familiar and with whom they can meet frequently. This may be especially true if pension funds plan to, or have been, working with firms for a long period of time, such as funds hiring a firm to provide litigation monitoring services. Geography may also be important for researchers seeking to understand law firms’ political contributions. Contributions from lawyers to politicians in their own states may seem less suspicious than donations to those in distant states.

 
B.     Experience

Based on my data, from 2002 to 2006, pension funds selected the same few law firms repeatedly. Bernstein Litowitz Berger & Grossman was affiliated with an institutional plaintiff in thirty of the seventy-five cases in my dataset, or 40% of the cases. On the other hand, pension funds selected twenty-nine of the thirty-six total firms each three or fewer times. Future research could quantify indicators of a law firm’s experience, such as the number of previous securities fraud class action cases handled, in an effort to discover whether experience is an independently significant variable in funds’ selection decisions.

 
C.     Previous Relationships

Funds may also be more likely to select firms with which they have had a particular former relationship. This might mean a firm representing the fund in a previous class action, but it could also include a law firm providing other services for a fund. According to one securities class action expert, funds increasingly are relying on law firms to monitor their investments and to provide advice on possible suits to file or join.⁵ Funds typically do not pay the law firms for these litigation and investment monitoring services, but the firms instead hope to be rewarded by being selected as lead counsel if the fund decides to file suit and is named lead plaintiff. In a recent case, Judge Jed S. Rakoff raised concerns at a hearing that a proposed plaintiff law firm had a “blatant, shocking conflict of interest” stemming from free monitoring services provided for a union pension fund client.⁶ Additionally, pension funds have been reported to keep “short lists” of firms that have been prescreened to use when the fund decides to file suit. In these cases, the law firm that provides investment monitoring services competes with other firms on the fund’s list. Pension funds without exclusive lists rely on “requests for proposals” sent to law firms, inviting them to bid for the pension fund’s legal work. All of these arrangements may shed light on law firms’ decisions to contribute to funds, or may impact funds’ lead counsel selection decisions.

 
Conclusion

Past fears, and even reforms, of the paying-to-play practice have been based on anecdotal evidence in the media and scholarly literature. This Editorial provides empirical evidence for the first time showing that plaintiffs’ law firms do contribute to officials affiliated with the public pension funds that select them as lead counsel in securities fraud class actions. Given this prima facie evidence, it is still important to explore other factors that may explain why law firms contribute to funds and how funds choose which law firms to hire. Moreover, even if the worst paying-to-play fears are true and pension funds are selecting law firms based on political contributions, does paying-to-play actually have a negative effect on lawyer-client agency costs in securities fraud class actions? In other words, even if paying-to-play is happening, does it matter? This is a question Stephen J. Choi, Adam C. Pritchard, and I examine in an upcoming paper, The Price of Paying to Play in Securities Class Actions.⁷

Acknowledgments:

Copyright © 2010 New York University Law Review.

Drew T. Johnson-Skinner received his J.D. from New York University School of Law in 2009. He is currently a Law Clerk for Judge John G. Koeltl.

This Legal Workshop Editorial is based on the following Student Note: Drew T. Johnson-Skinner, Paying-To-Play in Securities Class Actions: A Look at Lawyers’ Campaign Contributions, 84 N.Y.U. L. REV. 1725 (2009).

Click here to access the raw data analyzed in this Editorial.

There are no easy solutions to these conflicting interests, and courts have disagreed over whether employer and housing sanctions are valid.  The federal statutory provision that preempts local ordinances regulating employment of unauthorized workers creates an exemption for “licensing and similar laws” in a savings clause.  To define “licensing and similar laws,” courts have nothing to turn to but an ambiguous legislative history.  In addition to disputing the proper scope of the savings clause, courts and litigants have disputed the ways in which a local ordinance might conflict with federal immigration laws and policies.  Courts (so far) have responded by using the preemption doctrine to reach a desired result rather than conducting a principle-based analysis of the validity of local laws that impose a licensing penalty on employers of unauthorized workers.

In this Editorial, I argue that courts should adopt a uniform framework for analyzing local employer sanctions and housing laws that focuses on whether the laws conflict with or would undermine federal immigration policy.  Courts should resist the temptation to announce an overly broad preemption doctrine that would undermine local governments’ ability to legislate in areas where they have strong interests.  Rather, courts should determine whether local ordinances upset the policies central to the 1986 legislation: enforcing immigration laws uniformly, preventing discrimination, and imposing only reasonable costs on businesses.

 
I.
Recent Municipal Ordinances

Several municipalities recently enacted ordinances that penalize employers who employ unauthorized workers and landlords who lease property to undocumented noncitizens.  Hazleton, Pennsylvania enacted one such ordinance, which contains provisions typical of most employer sanctions ordinances.  It provides that upon receipt of a written and signed complaint, a city agency will request identity information from an employer and suspend the license of any business that does not comply within three business days.  The city will then submit the documentation to the federal government to verify the worker’s immigration status.  A safe harbor provision provides immunity for businesses that verify a worker’s status using the Basic Pilot Program (now called E-Verify).

Municipalities have also enacted ordinances that penalize landlords for leasing a dwelling unit to undocumented immigrants.  Hazleton’s procedures regarding a landlord suspected of leasing property to an undocumented immigrant are similar to the employer sanctions procedures: any person may file a written complaint, a city agency will verify the tenant’s immigration status with the federal government, and the landlord will have five days to evict a tenant after notification of a violation.  If the landlord does not comply, the landlord faces a license suspension during which she may not collect rent from any tenants.

 
II.
Challenges to Local Employer Sanctions Laws

Congress may expressly forbid states from regulating a specified area of law.  Through federal immigration legislation, Congress has used this power to expressly preempt states and localities from imposing criminal and civil penalties on employers of unauthorized workers.  Congress can also impliedly preempt states and localities from legislating in a particular area.  The federal government’s intention to occupy an entire field of law can preempt any local legislation in that field, and a conflict between local and federal law and policy will also preempt local legislation.

 
A.     Express Preemption

When litigants challenge a local law as preempted by federal law, a court will look to see whether Congress has enacted a specific preemption provision and determine whether the local law falls within the area proscribed by that provision.   On this ground, a district court in the Middle District of Pennsylvania recently struck down a Hazleton, Pennsylvania ordinance barring the employment of unauthorized workers as unconstitutional in Lozano v.  City of Hazleton.² Hazleton’s Illegal Immigration Relief Act (“IIRA”) mandated license suspensions for businesses that employ “unlawful worker[s].”

The court held that Congress expressly preempted the Hazleton ordinance by enacting 8 U.S.C.  § 1324a(h)(2).  Hazleton unsuccessfully argued that it complied with federal requirements by sanctioning employers with a license suspension rather than a criminal or civil penalty.  The court rejected that argument because “[i]t would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity to provide the ultimate sanction, but no lesser penalty.”[3. Id. at 519.] The court relied on legislative history to establish the scope of the savings clause in § 1324a(h)(2): The savings clause permits states and municipalities to suspend business licenses only for violations of the Immigration Relief and Control Act (“IRCA”), not local regulations.

Less then a year after the Lozano decision, a district court in the Eastern District of Missouri considered a challenge to a Valley Park, Missouri ordinance similar to the Hazleton ordinance in Gray v.  City of Valley Park.³ The court considered whether the ordinance fell under the savings clause as a “licensing or similar law.”  The court found that the ordinance, on its face, looked like a licensing law: it provided for the issuance or denial of business permits.

In September 2008, the Ninth Circuit Court of Appeals became the first federal appellate court to weigh in on the issue of state and local regulations of the employment of unauthorized workers in Chicanos Por La Causa, Inc.  v.  Napolitano.⁴ In Chicanos Por La Causa, plaintiffs brought a facial challenge to the Legal Arizona Workers Act (“LAWA”), which—like the Hazleton and Valley Park ordinances—revoked the licenses of employers that hired unauthorized workers.  The appeal focused primarily on whether LAWA was a “licensing [or] similar law[]” under 8 U.S.C.  § 1324a(h)(2).  The Ninth Circuit held that LAWA was a “licensing law” under § 1324a(h)(2) and was therefore not expressly preempted.  The court reasoned that language in the legislative history—recognizing the states’ ability to “condition an employer’s ‘fitness to do business’ on hiring documented workers”—contradicted the plaintiffs’ reading requiring a federally adjudicated violation of IRCA to revoke a license.

 
B.     Field Preemption

A court may also strike down a local law if the subject matter inherently leaves no room for local regulation.  Using this field-preemption theory, the Lozano court held that the Hazleton IIRA was invalid.   Two factors controlled this outcome: (1) a strong federal interest in the field of immigration, and (2) the pervasiveness of federal regulations in the field of immigration.

The Gray court also considered whether field preemption barred an ordinance.  The court found that Congress did not intend to occupy completely the field of regulating employment of unauthorized workers.  The preemption provision in IRCA supported this finding because § 1324a(h)(2) permits local licensing regulations.

 
C.     Conflict Preemption

The Lozano court also held that the Hazleton IIRA was invalid under a conflict preemption theory.  The court noted that although IRCA and the Hazleton IIRA have a similar purpose—penalizing employers of unauthorized workers—they use different means to achieve that purpose.  While federal law requires employers to review a worker’s documents and use an I-9 Employment Eligibility Verification Form to establish worker eligibility, the Hazleton IIRA also requires the employer to present the worker’s documents to the local Code Enforcement Office, which determines the status of the worker by contacting the federal government.  The Hazleton IIRA also conflicts with IRCA by failing to contain an exception for casual domestic workers and independent contractors.  Moreover, the Hazleton IIRA mandates use of the Basic Pilot Program, while federal law makes use of the Program optional.  Finally, the timeframe for employers to respond to alleged violations also varied under the Hazleton IIRA and IRCA.   The court also found a conflict in how the United States and Hazleton balance the interests of preventing illegal employment and protecting the rights of businesses and workers.  The Hazleton IIRA places greater burdens on employers, in the interest of preventing illegal employment, than does IRCA.

The Gray court also considered a conflict preemption claim, but found no conflicts between the Valley Park ordinance and IRCA.  The court stated there was no conflict because Congress did not express an intention to forbid states from regulating the employment of domestic workers and independent contractors.  Further, the court rejected an argument that the procedures of the Valley Park ordinance and IRCA conflict.  A “tentative nonconfirmation” from the Basic Pilot program tolls the procedures of the ordinance and allows for the federal procedures to run their course.  Finally, the court found no conflict between the ordinance and IRCA concerning the use of the Basic Pilot program.  The court noted that although the federal government chose not to make participation mandatory, a locality may still provide for greater enforcement than the federal government.

The Ninth Circuit considered whether federal law impliedly preempted a requirement that employers use E-Verify.  The court held that this requirement “for which there is no substitute under development in either the state, federal, or private sectors, is not expressly or impliedly preempted by federal policy.”⁵ The court reasoned that Congress knew how to explicitly preempt state laws mandating use of E-Verify; however, it did not do so.  Moreover, Congress envisioned broader use of E-Verify and showed no intention to restrict its use.

 
III.
Challenges to Local Housing Sanctions Laws

Ordinances penalizing property owners who provide housing to undocumented immigrants have had less success in federal courts than the employer sanctions ordinances.  Federal courts in Pennsylvania and Texas have struck down housing sanctions ordinances as preempted by federal law.  Other communities have repealed housing ordinances when faced with expensive lawsuits and limited chances of success.

The Lozano court held that Hazleton’s ordinances penalizing landowners for leasing property to undocumented immigrants conflicted with federal law and were void.  First, the court found a conflict because although the federal government will allow certain categories of undocumented immigrants to remain in the United States, Hazleton’s ordinance would deny them access to housing.  Next, the court noted that changing immigration status is a complex procedure.  For example, an individual with a bona fide application for adjustment of status will often have no documents establishing a valid claim to remain in the country until the application is approved—perhaps years later.  The ordinances assume that the federal government seeks the removal of all undocumented migrants; however, federal immigration rules are much more complex and the use of E-Verify is insufficient to determine whether an alien should be removed.

A federal court in Texas has also invalidated a housing ordinance on preemption grounds in Villas at Parkside Partners v. City of Farmers Branch.⁶ Instead of resting its decision on conflict preemption, like Lozano, Villas at Parkside Partners held that federal law preempted the Farmers Branch ordinance because it was a regulation of immigration.  The Farmers Branch ordinance did not adopt federal immigration requirements, but rather used federal housing regulations to determine which noncitizens could rent housing.  Further, the court noted that the Farmers Branch ordinance required owners and property managers to determine the immigration status of potential tenants, an unlawful regulation of immigration.

 
IV.
Local Employer Sanctions Laws and Federal Immigration Policy

The federal government—with the enactment of IRCA—has signaled that the employment of unauthorized workers is a matter of national concern.  However, courts should be careful not to strike down every law touching on the subject of immigration because an overly expansive view of field preemption could result in localities losing the ability to regulate in areas where they have a strong interest.  In fact, Congress expressly allowed some room for local regulation, leaving it to the courts to define the boundaries of permissible regulation.  Courts should make clear that any employer licensing penalties should closely track federal law so as not to conflict with federal immigration policy by imposing broader liability or excessive burdens on businesses.

 
A.     Express Preemption Under IRCA

The express language of IRCA exempts local licensing regulations from the preemption provision without making clear the scope of this exemption.  Courts should interpret § 1324a(h)(2) to require a federally adjudicated violation of IRCA before a state or municipality may impose a licensing penalty.  The language of the statute and the legislative history have led to varying interpretations of what process IRCA requires before a state may revoke a business license.  The legislative history is vague and merely states that a locality may revoke licenses of a “person who has been found to have violated the sanctions provisions in this legislation,” making clear that there must be a violation of IRCA, as opposed to a local regulation, without defining what entity must find the violation.⁷ However, a court must interpret the savings clause in light of the entire regulatory scheme.  Allowing a local determination of whether an employer hired an unauthorized worker would be contrary to Congress’s creation of a uniform standard, in IRCA, for regulating the employment of unauthorized workers.  Further, businesses would have difficulties adjusting to the approach suggested in Gray: complying with thousands of potentially conflicting procedures for determining whether a worker is authorized.  Adjudication by a federal entity would comply with Congress’s goals of uniform enforcement and not overburdening businesses.

Courts should also interpret the savings clause of § 1324a(h)(2) to include fitness-to-do-business laws in addition to regular licensing laws.  Interpreting the savings clause using the plain meaning approach does not define the scope of the “similar laws” language.  After discussing Congress’s intent not to interfere with local licensing processes, the legislative history also states that the statute is also not intended to preempt fitness-to-do-business laws.  Furthermore, Congress has consistently expressed a policy preference against preempting state or local laws licensing businesses that supply labor.  Thus, because fitness-to-do-business and licensing laws are the only laws that Congress explicitly mentioned in the legislative history, courts should interpret the phrase “similar laws” to include the fitness-to-do-business laws.

 
B.     Field Preemption

Courts should not rely on field preemption to invalidate local employer sanctions laws.  The express language of IRCA’s preemption provision and its legislative history permit some room for states and municipalities to impose licensing penalties on employers who violate IRCA.  That is why the Lozano court had to go to great lengths to ignore the savings clause of § 1324a(h)(2), which permits some local regulation, in order to find that the Hazleton ordinance was invalid on the basis of field preemption.  In Gray, the court correctly dismissed the field preemption claim quickly by looking at Congress’s intent to permit some level of local regulation.

 
C.     Conflict Preemption

Courts should focus their preemption analysis on whether a challenged local employer sanctions law conflicts with the law and policies of the federal government.  The areas on which I propose courts focus their analysis have the potential to “‘stand[] as an obstacle to the accomplishment . . .  of the full purposes’” of federal immigration policy by preventing uniform enforcement of federal immigration law, overburdening businesses, and encouraging discrimination.⁸ If local governments draft a regulation that punishes businesses with a licensing penalty for employing illegal workers in a manner consistent with federal law, as outlined below, then courts should allow the local regulation to stand.

First, courts should consider whether the local law mandates use of an employment verification system that is inconsistent with federal law.  Federal law forbids the government from requiring most employers to participate in E-Verify.  Congress’s decision to continue to make participation in E-Verify voluntary reflects important and carefully considered policy decisions.  Most importantly, work-authorized employees still frequently receive tentative non-confirmations from E-Verify resulting in substantial costs.  Allowing states and localities to impose their own employee-status-verification procedures would impose a burden on businesses substantially exceeding Congress’s intentions.  Moreover, a patchwork system of potentially hundreds of different regulatory schemes would defeat Congress’s goal of uniform enforcement.  Given local governments’ limited resources, the federal government is in a better position than local governments to monitor the effectiveness of the E-Verify program and determine when to make it mandatory on a nationwide basis.

Second, courts should consider whether a local law applies to the same employment activities that Congress intended to regulate.  Regulations promulgated pursuant to IRCA exclude independent contractors and casual domestic workers from the definition of employee.  A local regulation that penalizes employers of independent contractors and casual domestic workers would impose a heavier burden on employers than Congress expressly intended to impose.

Third, courts should consider whether the procedures of a local regulation are compatible with the procedures of federal employer sanctions provisions.  Local regulations requiring an employer to discharge an employee before the required eight-day period has elapsed place employers in the precarious position of deciding which law to follow.  Local laws should make clear that employers relying on an E-Verify system may not terminate an employee until after a cure period pursuant to federal law, and courts should find that federal law preempts a local ordinance that does not explicitly follow federal procedures.

Fourth, courts should consider whether a local law upsets IRCA’s balance of employer sanctions and anti-discrimination provisions.  Congress, when enacting employer sanctions provisions, expressed concern about the potential for discrimination and stated that anti-discrimination provisions were essential to IRCA.  Municipal ordinances must provide proportionate safeguards against discrimination to avoid conflicting with federal law prohibiting discrimination.  If municipalities choose to impose licensing penalties following the procedures of § 1324a, they should also provide protections to minority employees comparable to those in § 1324b.

 
V.
Local Housing Sanctions Laws and Federal Immigration Policy

A court’s analysis of housing sanctions, like its analysis of employer sanctions, should focus on conflicts with federal law and policy.  As discussed above, courts should not rely on a field preemption theory to strike down local immigration ordinances: courts could only accomplish this with an overly expansive field definition that would result in localities losing the ability to regulate in a wide variety of areas in which they have a strong interest.

Courts should not rely on a regulation-of-immigration theory to preempt local housing laws.  This is a narrow test and an immigration regulation “is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.”⁹ An overly expansive view of what constitutes immigration regulation could lead to the federal immigration power preempting a wide variety of local legislation.

Courts should rely on conflicts with federal law and policy to strike down local housing regulations.  First, courts should analyze whether a local housing ordinance would deny access to housing to immigrants who are lawfully in the United States.  Housing provisions that deny legal immigrants access to housing conflict with federal law because they place a “discriminatory burden[] upon the . . . residence of aliens lawfully within the United States.”¹⁰ Second, courts should analyze whether a housing ordinance conflicts with federal law by requiring state or local officials to determine a housing applicant’s immigration status.  Third, housing provisions conflict with federal law when they attempt to deny shelter to undocumented immigrants as a proxy for deportation—an exclusively federal power.  The effect of such an ordinance is to exclude undocumented immigrants from a community.

 
Conclusion

Courts have seen extensive litigation on the subject of local ordinances regulating the employment of unauthorized workers and reached contradictory results.  Courts should recognize that Congress expressed an intention to allow states and municipalities to enact licensing regulations and fitness-to-do-business laws that penalize employers found, by a federal adjudication, to have employed unauthorized workers.  Courts should not rely on the field preemption theory because Congress has explicitly left some room for local regulation.  Rather, courts should carefully inspect an ordinance and focus on whether it undermines federal immigration policy.  If states and localities craft legislation that conforms to federal laws and procedures, they may then choose to impose a licensing penalty in addition to the civil and criminal penalties imposed by IRCA.  Further, courts should strike down housing ordinances that conflict with the federal government’s exclusive authority to order deportation.

Acknowledgments:

I would like to thank the staff of the Cornell Law Review for their thoughtful suggestions, Professor Stephen Yale-Loehr for his comments on an earlier draft of this paper, and my family and friends for their constant support.

Copyright © 2010 Cornell Law Review.

Mark S. Grube is a 2010 J.D. Candidate at Cornell Law School.

This Legal Workshop Editorial is based on the following Student Note: Mark S. Grube, Note, Preemption of Local Regulations Beyond Lozano v. City of Hazleton: Reconciling Local Enforcement with Federal Immigration Policy, 95 CORNELL L. REV. 391 (2010).

Yet, the Court has consistently dodged the question of whether one type of religious government speech is constitutional—namely, speech that is often called “ceremonial deism.” That term is commonly used to refer to brief or passing religious references, such as the national motto (“In God We Trust”), the words “under God” in the Pledge of Allegiance, the city names Corpus Christi and St. Louis, and the abbreviation “A.D.” (Latin for “In the year of the Lord”). In 2004, the Court dismissed a constitutional challenge to the recitation of the Pledge of Allegiance in public schools without reaching the merits. The Supreme Court has not decided any other direct challenges to the constitutionality of these brief religious references; instead, various Justices have voiced their views on the matter in dicta, usually suggesting that these references pass constitutional muster because they have lost their religious meaning over time. And while lower courts have faced more direct challenges to ceremonial deism, they have largely espoused the same “secularization” thesis with very little supporting analysis.

It is surprising that little consideration has been brought to bear on the validity of the secularization thesis. Indeed, courts have focused minimal attention on the problem of discerning the meaning and effect of these phrases. Linguistic theory, however, may provide some answers to the thorny constitutional questions that ceremonial deism presents, or at least suggest directions for more nuanced analysis.

 
I.
Speech Act Theory

Speech act theory is a branch of philosophy of language that considers how language actually works—and how and why it fails. Rather than considering language as abstract means of conveying truth, speech act theory looks at language as it is used in everyday life, perceiving language primarily as doing—as bringing about states of affairs, with greater or lesser degrees of success. It is easy to come up with legal examples of language bringing about concrete effects: imposing a prison sentence, enjoining a party from taking an action, and forming a legally binding contract are obvious instances of speech acts—that is, of actions that are performed by and through language.

Less obviously, even describing a state of affairs involves doing something with words, just as much as sentencing and enjoining and contracting do. A descriptive utterance accomplishes something specific and distinct through the use of words. And it may often also be an “act” in the sense that it does more than passively observe or describe: it may also help to construct the reality to which it merely refers or purports to refer. Descriptions and statements may tend to reinforce particular truths or realities by presenting them as fact rather than as one contested viewpoint among many.

Speech act theory refers to the act performed by and in speaking (describing, sentencing, enjoining, and so on) as illocutionary force. Every meaningful utterance possesses some illocutionary force.

 
A.     Conventionality and Iterability

To be effective as a speech act, any meaningful statement must be uttered under the appropriate conditions. For example, the speech act of bequeathing possessions to an heir cannot be performed successfully unless certain conventions are met. Those conventions include the numerous formalities pertaining to wills under state law, such as signature and witness requirements; the requirement that the bequeathing person has the legal authority to dispose of that property; and the requirement that the individual not be incompetent, under duress, performing in a play, or giving an example of performative utterances in a law review article when the words are uttered. The words themselves are also part of the conventionality of the speech act: although many different combinations of words may be used to bequeath one’s possessions, those words must still be recognizable to the relevant readers as words of bequest.

Moreover, if language is conventional, it must function according to a set of learnable, and thus reproducible, rules. The functionality of language depends, in other words, on its ability to be repeated—on the ability of certain speech acts to be replicated in a variety of contexts. But this ability to be repeated, or iterability, also means that any linguistic utterance is capable of being cut off from both its original context and its speaker’s intent to be reproduced in a context that may change or undermine its prior meaning or in ways that may not have been originally intended.

Many examples of ceremonial deism—city names, the national motto, the language of the Pledge, and even Christmas trees—function by means of this iterability; indeed, they must function in the absence of any particular speaker or any particular intended hearer. The national motto on coins, for example, is recognizable as such because of the repetition of its exact phrasing and its placement on the coins. But at the same time, its repeatability, and thus its recognizability, is exactly what opens it up to new, and possibly ironic, use in other contexts—such as the joke “In God we trust; all others pay cash.” The joke draws its humor from the way it trivializes the religious component of the motto, as well as the way in which it associates God and Mammon—an association that is latent but unexplored in the motto’s use on currency itself. In fact, the joke is comprehensible only in terms of its religious origins.

Yet the possibility of changed meaning need not be relevant only when a phrase or term is used facetiously. Placing religious-themed artwork in the context of a public museum, for example, will usually remove the religious significance from the government’s decision to embrace that religious speech. Even if the artwork itself has deep religious meaning, its placement in the National Gallery would not suggest the illocutionary act of government endorsement of religion, but rather of depiction of religious events, or simply of visually “quoting” the artist’s religiously motivated expression.

 
B.     Meaning’s Vulnerability—and Its Persistence

Despite this vulnerability to change, illocutionary force possesses a surprising persistence. Each time a term is used, it invokes its past usages and thus reconsolidates them, reminding the reader or listener of its historical meanings. The joke “In God we trust; all others pay cash” makes sense only because it reminds the listener of the religious origins of the phrase, though its bent is decidedly secular. But more serious uses of the national motto also draw and rely upon its original religious meaning. The phrase “In God We Trust” was initially imprinted on coins as a way of signifying the nation’s religious and patriotic commitment in the Civil War era; its adoption as the U.S. national motto during the Cold War was infused with a similar sentiment. Coexisting with those sentiments, moreover, was a spirit of exclusion—a desire to distinguish the United States from other so-called heathen or godless atheistic nations, which consequently labeled nonbelievers as unpatriotic. When the motto is used in a solemnizing way or as an expression of national unity, it is capable of performing those solemnizing and unifying functions precisely because of its invocation and repetition of the set of religious beliefs and practices that originally motivated its creation and its adoption as the motto. Its usage relies on the unique power conferred by the religious force of the motto’s prior usages to accomplish the act of solemnizing or unifying. Nonetheless, the motto’s defenders, like the courts that have considered its constitutionality, often deny both the phrase’s original religiosity and the spirit of exclusion that motivated the motto’s adoption, thereby allowing the motto to give the illusion of voicing a universal and purely patriotic belief that can claim the support of virtually all citizens.

Meaning is thus at once both vulnerable and surprisingly persistent. Moreover, speech acts often appear to deny or conceal their original context despite the fact that the original context continues to give the speech act its force. Further, the original context that must be concealed is often one of political or social subordination or strife. Ignoring this strife allows the speech act to appear to possess a singular, unifying, and uncontroversial meaning. But in reality, the past meaning persists, if only as the original context that gives the speech act its force and authority. Past social context therefore plays a role in interpreting these speech acts.

 
II.
The Implications of Speech Act Theory for the Constitutionality of Ceremonial Deism

 
A.     A Rebuttable Presumption

It would be foolish to contend that the complex body of theory I have just described can yield easy answers to constitutional challenges. Nonetheless, I believe some directions for analysis can be identified. Specifically, courts should adopt a rebuttable presumption of continuing religious meaning when confronted with an Establishment Clause challenge to ceremonial deism. Of course, speech act theory’s emphasis on illocutionary force suggests that the presence of facially religious language should not automatically mean that the language’s effect is religious. At the same time, speech act theory teaches that meaning, although vulnerable to change, has a tenaciousness that is often underappreciated. A rebuttable presumption of religious meaning is therefore appropriate as an acknowledgement of this tenaciousness.

Moreover, a rebuttable presumption is appropriate because speech act theory teaches that the speech acts of “describing” and “acknowledging” may be far less neutral and passive than they appear. The act of describing a reality may instead have a tendency to create and enforce that reality; moreover, this danger seems particularly acute when the describing is done in the name of the state. This effect may be intensified rather than lessened by the repetition of certain phrases throughout history, as that repetition, too, may be an attempt to shore up the reality that the phrase appears merely to describe.

Finally, the capacity of meaning to persist over time also suggests the importance of history and social context in determining whether a speech act retains its religious force. As described above, speech acts have a tendency to conceal the sort of history of subordination or divisiveness that lies behind them. Accordingly, courts should be particularly sensitive to clues regarding an utterance’s history.

The rebuttable presumption I envision would function primarily as a burden-shifting technique. A plaintiff challenging an instance of ceremonial deism would have to show only facially religious language to get the benefit of a rebuttable presumption of continuing religious meaning. At that point, the burden would shift to the government to prove that the religious meaning has been lost. The government could do so in one of two ways. It could either demonstrate the absence of religious illocutionary force, as in the case of place names or other genuinely referential or citational phrases, or it could show that the sociohistorical context contains no divisive or religiously oppressive past that continues to inform present usage. If the government’s showing is unconvincing or if the plaintiff is able to undermine the government’s claims, the utterance should be considered a religious one.

 
B.     Examples

1.   Place Names

Challenges to the constitutionality of city names like Corpus Christi and St. Louis are the cases in which the presumption would most likely be rebutted. Although these names have facially religious—even sectarian—content, they do not generally carry an illocutionary force that can be described as religious when they are used as proper names to refer to long-established cities. Indeed, the city names of San Francisco and Los Angeles may carry with them many connotations, but religiosity, sainthood, and angels are not among the most immediate that leap to mind. Rather, those place names legitimately may be understood as referring to—almost “quoting”—the city’s origins, which may have been founded in tribute to a religious figure. Indeed, it seems that place names simply function differently from mottos or pledges: they are neither assertions of fact nor declarations of beliefs but simple referents whose arbitrariness is more or less assumed by those who use them. Religious city names thus may be one instance in which a term has legitimately lost its religious meaning. Indeed, in most cases it will be easy to show that the name, like most names, does no more than refer to the city’s historical origins or the religious figure after whom the city was named.

2.   The National Motto

In the case of the national motto, the presumption of religious meaning could not be rebutted. The government could show neither that it lacks true illocutionary force—when posted in schools or stamped on coins, it is not a mere placeholder or referent—nor that the motto’s sociohistorical context is free of divisiveness or religious subordination.

Courts should not ignore the fact that the motto is associated with periods in American history of intermixed religious and patriotic sentiment—namely, the Civil War and the Cold War. These periods were moments not just of generic religious sentiment but of attempting both to assert and consolidate the supremacy of God in the nation. And inevitably, this assertion and consolidation was accompanied by an intent to exclude and label as unpatriotic anyone who—like the godless communists—rejected the view embodied in the phrase.

It is precisely this intermingling of piety and patriotism—the national unification under the umbrella of religion that is both described and enforced by those practices—that is troubling. Courts’ description of the national motto as merely a historical acknowledgement obscures the religious and religiously divisive history of these practices by making them synonymous with patriotism. A presumption that the national motto has enduring religious meaning should not, therefore, be rebuttable.

Acknowledgments:

Copyright © 2010 Duke Law Review.

B. Jessie Hill is an Associate Professor at Case Western Reserve University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705 (2010).

Protecting Them from Themselves reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

 
Modern Mutual Benefits Arguments for Limiting Women’s Rights

Protecting Them from Themselves begins by examining contemporary mutual benefits discourse. I first explore how arguments contending that restrictions on women’s legal rights promote women’s welfare have flourished in the modern era, building on the assumption that women’s true interests and ultimate obligations center on marriage and family life. At least twenty-four states, for instance, retain some form of a marital rape exemption. These states criminalize fewer offenses if committed within marriage, punish more leniently the marital rape they do recognize, and/or impose additional procedural barriers to marital rape prosecutions. Legislators, courts, and commentators have explained since the last quarter of the twentieth century that granting wives an unhindered right to pursue marital rape charges would allow women to shatter their marital harmony, destroy their marital privacy, and make marital reconciliation much more difficult. This argument maintains that both husbands and wives are better off if the law limits the criminality of marital rape, although the benefits to men and women differ. Marital rape exemptions protect husbands from prosecution and wives from damage to their marital relationship assertedly more harmful to them than the marital rape itself.

Similar arguments that limiting women’s rights serves women’s best interests have increasingly come to shape antiabortion legislation and the Supreme Court’s abortion jurisprudence. Roe v. Wade (1973)¹ stressed the need to mediate between competing rights and interests: a woman’s right to have an abortion versus a state’s interest in protecting women’s health and the potential life of the fetus. Since Roe, however, the antiabortion movement has recognized in increasingly explicit terms that many Americans are unwilling to criminalize abortion if doing so will harm women. The movement and its government allies have turned more and more to the language of aligned interests rather than competing rights, insisting that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion. The argument visibly influenced the Court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),² which upheld mandatory waiting periods before abortion and “informed consent” laws designed to persuade women not to have abortions. The Court explicitly endorsed the assumption of regret in Gonzales v. Carhart (2007)³ with little discussion or explanation. Carhart upheld the federal prohibition of an abortion procedure—even where that procedure is the safest method of abortion—on the premise that some women will, and perhaps all women should, come to regret having abortions.

 
Mutual Benefits Arguments Against Affirmative Action

Protecting Them from Themselves next considers modern mutual benefits discourse in the racial context. Arguments that whites and people of color have aligned interests in defeating civil rights initiatives have become increasingly prominent in recent years. For example, the Supreme Court’s initial decisions restricting race-based government affirmative action programs and early academic criticism emphasized the conflicting interests of whites and people of color, and the burdens that affirmative action imposed on whites. But the Court and academic critics abruptly switched focus within just a few years and a few opinions. More recent opposition to affirmative action has stressed that affirmative action policies must be severely restricted in scope and duration because otherwise these policies will harm people of color. This account contends that legal decisionmakers need not choose between competing sides because the people participating in affirmative action programs and the people opposed to those programs have shared interests. People of every race and with every view on affirmative action all purportedly benefit in their own way if affirmative action is first limited and then eliminated.

 
A Legal History of Mutual Benefits Arguments for Sexual and Racial Inequality

Protecting Them from Themselves proceeds to uncover the genealogy of mutual benefits claims, analyzing historical manifestations of mutual benefits discourse. The mutual benefits argument is not a recent innovation devised to respond to the demands of the contemporary civil rights era. It is a long-established claim that defenders of unequal status relations have repeatedly deployed, relying on the argument’s familiarity to bolster its plausibility. The contention that more rights would harm the rights holders appeared prominently in defenses of slavery, racial segregation, married women’s subordination to their husbands at common law, and legislation restricting women’s rights to negotiate about market work. Mutual benefits arguments for sex and race inequality especially proliferated in eras, like our own, when reform movements were vigorously working to improve the status of women and people of color. The reform efforts presumably undermined claims that the law should favor men over women, or whites over people of color. Historical mutual benefits arguments were nominally committed to helping women and people of color. But they consistently and explicitly assumed that women and people of color were unusually poor decisionmakers unable to assess their own interests, that women’s true concerns were confined to domesticity, and that people of color were better off the less they challenged and disturbed white people and white-dominated institutions. Connections between the defenses of slavery, segregation, and women’s legal inequality have rarely been noticed. Highlighting them uncovers important precursors to modern civil rights discourse.

 
Evaluating Mutual Benefits Arguments

The extensive use of mutual benefits claims to support now-rejected forms of discrimination should affect how we assess modern mutual benefits arguments. The fact that historical versions of the mutual benefits claim are no longer convincing does not necessarily mean that current or future expressions of the claim cannot be appropriate. Mutual benefits arguments may sometimes be reasonable and cogent. But the role that mutual benefits arguments played in defending pernicious forms of inequality creates grounds for caution in considering contemporary assertions that women and people of color are better off with limited rights and opportunities. Courts, legislators, and commentators may be predisposed to endorse these assertions quickly with little support, deliberation, or debate because the assertions resonate with a long history of mutual benefits arguments and invoke shared cultural memories of prior mutual benefits claims. The antecedent life of mutual benefits discourse can give modern mutual benefits arguments an inordinate power to persuade that makes explanation and elaboration seem unnecessary. Yet mutual benefits arguments were historically employed to support practices that are now repudiated, and they drew on ways of thinking about women and people of color that are now suspect. Whatever one’s views on the merits of legal paternalism as a general matter, there is reason to be cautious about contentions that all parties benefit when the law denies rights and opportunities to women and people of color.

Protecting Them from Themselves concludes by seeking to stimulate greater conversation about mutual benefits claims that are often accepted too easily. I use the reasons why historical mutual benefits arguments are unconvincing to formulate four practical criteria that judges, legislators, and commentators should apply in evaluating contemporary mutual benefits discourse. These criteria ask whether advocates asserting that rights and opportunities will injure women or people of color are consistent in their arguments, whether they present evidence of harm, whether they rely on narrow assumptions about how women or people of color should behave, and whether they engage with counterarguments and opposing viewpoints. I employ these criteria to assess several modern mutual benefits arguments.

Contemporary claims that women or people of color benefit from limited rights and opportunities have many of the same weaknesses as their historical precursors. First, judges, legislators, and commentators have been very selective in contending that people seeking rights and opportunities can be safely ignored because they fundamentally misunderstand their own interests. The law does not usually assume that people are radically mistaken about how to improve their lives and need to be protected from themselves. But claims that women or people of color will be worse off with more rights and choices are common. Second, the evidence that rights and opportunities harm women or people of color is sometimes questionably reliable, and sometimes simply nonexistent. Third, mutual benefits claims frequently depend on and enforce rigid, historically embedded assumptions about how women and people of color should think, act, and live. Modern mutual benefits arguments, like their historical predecessors, typically take for granted that women should orient their lives toward domesticity instead of male-dominated spheres such as the market. Similarly, contemporary mutual benefits arguments track historical patterns in presuming that people of color are better off the more they accommodate and the less they demand from white society. Finally, modern arguments about mutual benefits to women and men, or to people of color and whites, often avoid acknowledging any possible costs associated with restricting the rights and opportunities open to women and people of color.

History richly documents how mutual benefits claims have long served to rationalize and perpetuate legal hierarchies based on sex and race. This history also suggests criteria that legal authorities and advocates should employ in evaluating modern manifestations of mutual benefits discourse that are now accepted too readily. Applying these criteria can help assess arguments that risk reinforcing some of the nation’s most entrenched and intransigent forms of status inequality.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Jill Elaine Hasday is the Julius E. Davis Professor of Law at University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009).