Vol 10 No 1 - Roger Williams University School of Law

ROGER WILLIAMS UNIVERSITYLAW REVIEWVOLUME TEN FALL 2004 NUMBER ONETABLE OF CONTENTSARTICLESBoth Sides of the Coin:A Decade of Parallel Proceedingsand Enforcement of Judgments inTransnational Litigation …………………………………………………………….Louise Ellen TeitzTreating Spiritual and LegalCounselors Differently: MandatoryReporting Laws and the Limitationsof Current Free Exercise Doctrine…………………………………………………...Andrew A. BeerworthRhode Island’s Public ImportanceException for Advisory Opinions:The Unconstitutional Exercise of aNon-Judicial Power………………………………………………………………….Thomas R. BenderNOTES AND COMMENTSFit to be Tried: Bypassing ProceduralSafeguards to Involuntarily MedicateIncompetent Defendants to Death…………………………………………..………. Cameron J. Jones.Mandatory Voir Dire Questions inCapital Cases: A Potential Solution tothe Biases of Death Qualification…………………..………………………….……Jesse NasonResults Above Rights? The No ChildLeft Behind Act’s Insidious Effect onStudents with Disabilities…………………………………………………..………Matthew R. Plain

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PMArticlesBoth Sides of the Coin: A Decadeof Parallel Proceedings andEnforcement of Foreign Judgmentsin Transnational LitigationLouise Ellen Teitz*[A] rule which permitted parallel proceedings would avoida “race to file” but in its place would be an equally troubling“race to judgment”. If neither action is stayed, theadvantage goes to the first party to obtain judgment in itsfavour because the other jurisdiction would be expected torespect that judgment. Permitting parallel proceedings tocontinue would encourage a litigation strategy in whicheach side would attempt to expedite its own action whileprolonging in any way possible the other party=s actionthrough endless motions or other delaying tactics. In otherwords, allowing parallel proceedings to continue wouldnot avoid entirely the problem of a “race to the courthouse”but would simply push the problem back a stage in the* Professor of Law, Roger Williams University Ralph R. Papitto School ofLaw, Bristol, Rhode Island. The author gratefully acknowledges the invaluableresearch assistance of Kathryn Windsor. Portions of this article appearin Louise Ellen Teitz, Developments in Parallel Proceedings: Globalization ofProcedural Responses, 38 INT’L LAW. 303 (2004) and Louise Ellen Teitz, ParallelProceedings – Sisyphean Progress, 36 INT’L LAW. 423 (2002). Copyrights2004 and 2002 American Bar Association and Louise Ellen Teitz. Reprintedwith Permission. © 2004 Louise Ellen Teitz. All Rights Reserved.1

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1proceedings. 1It seems to me that in this day of exceedingly high costs oflitigation, where no comity principles between nations areat stake in resolving a piece of commercial litigation,courts have an affirmative duty to prevent a litigant fromhopping halfway around the world to a foreign court as ameans of confusing, obfuscating and complicating litigationalready pending for trial in a court in this country. 2Just over ten years ago, a new undertaking in private internationallaw was being inaugurated at the Hague in the form of atreaty on the enforcement of foreign judgments in the Hague Conferenceon Private International Law (Hague Conference), an inter-governmentalorganization composed of over 50 countries. 3 Inan attempt to gain greater respect for U.S. judgments abroad, especiallyin an era of increasing international trade and commerce,the United States government in 1992-93 encouraged the HagueConference to negotiate a multilateral convention on foreignjudgments. In this article I consider the problems of concurrentproceedings in multiple countries over the last decade in the contextof the complementary developments in the enforcement offoreign judgments during the same period. While multiple proceedingsand enforcement of judgments have taken independentjourneys, both have traveled toward a convergence which attemptsto harmonize problems of multiple proceedings within thecontext of enforcing judgments. 4I. INTRODUCTIONAs the world has become smaller, the number of parallel pro-1. Westec Aerospace Inc. v. Raytheon Aircraft Co., [1999] 67 B.C.L.R. 3d278, 289 (B.C. Ct. App. 1999) (Rowles, J.A.).2. China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 40 (2dCir. 1987) (Bright, J., dissenting).3. The Hague Conference on Private International Law (Hague Conference)is devoted to harmonizing private international law and working towardsconcluding international treaties in this area. See infra Part VII.A-B.4. This conjunction of parallel proceedings and enforcement of judgmentsis seen in attempts to harmonize concepts of lis pendens on one hand,and forum non conveniens, or declining jurisdiction, on the other. See generallyDECLINING JURISDICTION IN PRIVATE INTERNATIONAL LAW (J.J. Fawcett ed.,1995).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 3ceedings has been expanding. Increasing globalization of trade hasboth multiplied the number of parallel proceedings and the numberof countries whose courts are facing the challenge of concurrentjurisdiction. 5 The proliferation of multiple proceedings hasled to a variety of approaches, 6 especially in U.S. courts, which reflectthe doctrinal inconsistencies in analyzing multiple proceedings,often with tools developed for purely domestic use. 7 Thus onefinds analogies to state-state, state-federal, and federal-federalmodels. These divergent methods highlight the increasing need forU.S. courts to adopt a uniform response to parallel proceedings involvinga foreign forum.During the last decade, the problems of parallel proceedingsand related issues have gained increasing attention within thecontext of transnational litigation and dispute resolution. The attemptsto negotiate a worldwide convention on jurisdiction and enforcementof foreign judgments at the Hague 8 have highlightedthis dilemma, as discussed below. Similarly, attempts to rationalizeand federalize enforcement of foreign judgments within the5. See discussion infra Part IV.A.6. See LOUISE ELLEN TEITZ, TRANSNATIONAL LITIGATION 233-50 (1996 &Supp. 1999) [hereinafter TRANSNATIONAL LITIGATION]; Louise Ellen Teitz,Taking Multiple Bites of the Apple: A Proposal to Resolve Conflicts of Jurisdictionand Multiple Proceedings, 26 INT’L LAW. 21, 28-48 (1992) [hereinafterTeitz, Taking Multiple Bites].7. For a discussion of the incorrect reliance on domestic precedent in aninternational context, see Posner v. Essex Ins. Co., 178 F.3d 1209, 1222-24(11th Cir. 1999), discussed in Louise Ellen Teitz, International Litigation;Parallel Proceedings and the Guiding Hand of Comity, 34 INT’L LAW. 545,546-47 (2000).8. There is extensive literature on the Hague jurisdiction and judgmentsnegotiations and drafts. See generally SAMUEL P. BAUMGARTNER, THEPROPOSED HAGUE CONVENTION ON JURISDICTION AND FOREIGN JUDGMENTS:TRANS-ATLANTIC LAWMAKING FOR TRANSNATIONAL LITIGATION (2003); LAW ANDJUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF ARTHUR T. VON MEHREN(James A.R. Nafziger & Symeon C. Symeonides eds., 2002)[hereinafter LAWAND JUSTICE]; Kevin M. Clermont, Jurisdictional Salvation and the HagueTreaty, 85 CORNELL L. REV. 89 (1999); Linda J. Silberman, Comparative Jurisdictionin the International Context: Will the Proposed Hague JudgmentsConvention Be Stalled?, 52 DEPAUL L. REV. 319 (2002); Arthur T. von Mehren,Enforcing Judgments Abroad: Reflections of the Design of RecognitionConventions, 24 BROOK. J. INT’L L. 17 (1998) [hereinafter von Mehren, EnforcingJudgments Abroad]; Arthur T. von Mehren, Recognition and Enforcementof Foreign Judgments: A New Approach for the Hague Conference?, 57 LAW &CONTEMP. PROBS. 271 (1994) [hereinafter von Mehren, Recognition and Enforcement].

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM4 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1United States, particularly those by the American Law Institute(ALI), 9 have had to address the issue of parallel proceedings. 10Meanwhile across the Atlantic, the problem of parallel proceedingswithin the context of internal judicial integration under theBrussels Convention 11 and now the Brussels Regulation 12 hasreached the European Court of Justice which has been attemptingto reconcile European law with the national law of common-lawjurisdictions that include the doctrines of antisuit injunctions anddiscretionary dismissals. 13 Even if there is currently no harmoni-9. See INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT (TentativeDraft No 2, 2004) [hereinafter INTERNATIONAL JURISDICTION AND JUDGMENTSPROJECT]. Professors Lowenfeld and Silberman, both from the NYU School ofLaw, are the reporters. See Linda J. Silberman & Andreas F. Lowenfeld, ADifferent Challenge for the ALI: Herein of Foreign Country Judgments, an InternationalTreaty, and an American Statute, 75 IND. L.J. 635 (2000).10. INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 9,at § 11. The ALI draft statute specifically acknowledges the connection betweenparallel proceedings and forum non conveniens, being entitled “Declinationof Jurisdiction When Prior Action Is Pending.” See discussion infraPart VII.C.11. See Convention on Jurisdiction and the Enforcement of Judgments inCivil and Commercial Matters, Sept. 27, 1968, 1990 O.J. (C 189) 2 [hereinafterBrussels Convention].12. The Brussels Convention was replaced by EU Regulation 44/2001 onJurisdiction and the Enforcement of Judgments in Civil and CommercialMatters, Mar. 1, 2002, 2001 O.J. (L 12) 1, amended by, 2002 O.J. (L 225) 1[hereinafter Brussels Regulation]. Denmark is not under the regulation andcontinues to follow the Brussels and Lugano Conventions. See Brussels Convention,supra note 11; Convention on Jurisdiction and Enforcement ofJudgments in Civil and Commercial Matters, Sept. 16, 1988, 1988 O.J. (L319) 9 [hereinafter Lugano Convention].13. This article does not focus on efforts of judicial integration in theEuropean Union (EU) except as they relate specifically to parallel proceedings,lis pendens, and declining jurisdiction in connection with recognitionand enforcement of judgments. For a discussion of antisuit injunctions andthe Brussels Convention/Regulation, see Clare Ambrose, Can Anti-Suit InjunctionsSurvive European Community Law?, 52.2 INT=L & COMP. L.Q. 401(2003). The article discusses Turner v. Grovit, an English case discussed infraat Part V, in which the European Court of Justice addressed the issue of theuse of an injunction to restrain proceedings in abuse of process within thecontext of the Brussels Convention. Turner v. Grovit, [2002] 1 W.L.R. 107(H.L. 2001), preliminary reference made, Case C-159/02, [2003] ECR ____,[2004] 1 Lloyd’s Rep. 216, judgement of the full court, [2004] ECR 00 (27 Apr.2004), [2004] 2 Lloyd=s Rep. 169; see also Richard Fentiman, Ousting Jurisdictionand the European Conventions, in 3 THE CAMBRIDGE YEARBOOK OFEUROPEAN LEGAL STUDIES , 107 (Alan Dashwood et al. eds., 2001); Trevor C.Hartley, How to Abuse the Law and (Maybe) Come Out on Top: Bad-FaithProceedings under the Brussels Jurisdiction and Judgments Convention, in

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 5zation internationally of the treatment of parallel proceedings, aheightened awareness of its connection with judgment enforcementrepresents a significant step forward.On the reverse end of a lawsuit, the inability to enforce judgmentsfrom one forum in another forum also creates multiple proceedings.14 There is neither a constitutional nor federal statutoryrequirement to give full faith and credit to a foreign judgment, asopposed to a sister state judgment. 15 Rather, the enforcement offoreign judgments within the United States is largely a matter ofstate law 16 and is basically controlled by common law except inthose states that have adopted the Uniform Foreign Money-Judgments Recognition Act (the Uniform Act). 17 More than half ofthe states have currently adopted some version of the UniformAct, although the states vary in the exceptions to recognition, includingthe requirement of reciprocity which currently is demandedonly in eight states. 18 The ALI is presently drafting astatute that would federalize the recognition and enforcement offoreign judgments within the United States 19 and that would imposea reciprocity requirement. 20 These efforts would help create aLAW AND JUSTICE, supra note 8, at 73 [hereinafter Hartley, How to Abuse theLaw].14. See generally TRANSNATIONAL LITIGATION, supra note 6, at 251-292;see discussion infra Part VI.15. U.S. CONST. art. IV, § 1 (“Full Faith and Credit shall be given in eachState to the public Acts, Records, and judicial Proceedings of every otherState. And the Congress may by general Laws prescribe the Manner in whichsuch Acts, Records and Proceedings shall be proved, and the Effect thereof.”).16. Federal courts in diversity jurisdiction, which is generally the basisfor jurisdiction of suits involving foreign parties, apply state law for recognitionand enforcement under the Erie doctrine. See Hunt v. BP ExplorationCo. (Libya), 492 F. Supp. 885, 892 (N.D. Tex. 1980); Somportex, Ltd. v. PhiladelphiaChewing Gum Corp., 318 F. Supp. 161, 164 (E.D. Pa. 1970), aff’d, 453F.2d 435 (3d Cir. 1971). See discussion infra Part VI.17. 13 U.L.A. 263 (1986) [hereinafter UFMJRA]. The Act has a narrowscope, covering only money judgments, leaving the remainder for commonlaw development. The National Conference of Commissioners on UniformState Laws (NCCUSL) is currently working on updating and amending theUFMJRA. See Uniform Law Commissioners, at http://www.nccusl.org/Update/.18. See infra note 234.19. INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 10;see discussion infra Part VII.C.20. Id. at § 7. The reciprocity requirement is controversial. It was the focusof much of the debate at the May 2004 ALI annual meeting, where a mo-

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM6 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1consistent approach, making “importing” of foreign judgmentsturn in part on the treatment of U.S. judgments abroad.Nor can one easily or freely “export” U.S. judgments for enforcementabroad since the United States is not a party to anymultilateral convention enforcing foreign civil judgments. In contrast,certain countries, such as the members of the EuropeanCommunity and the European Free Trade Association (EFTA),have worked to provide free movement of foreign judgments by reducingdivergent treatment of jurisdiction and enforcement ofjudgments. 21 The Hague Conference on Private International Lawhas been working on a convention since 1992 that would establishstandards for jurisdiction and for subsequent recognition of judgments.The proposed convention was one that would not only treatrecognition and enforcement of judgments but also establish thebases of jurisdiction that would be acceptable for enforcement.The jurisdictional component of the convention proved to bethe more problematic in negotiations because there are significantand controversial differences among countries as to acceptablebases of jurisdiction. U.S. notions of doing-business and tag jurisdiction,and our emphasis on the relationship of the defendant=sactivities to the forum, differ from personal jurisdiction conceptselsewhere. The process has continued for the last decade withoutresolution due to a multitude of factors ranging from disagreementover basic concepts of adjudicative jurisdiction, differences inthe treatment of consumers, problems arising from the internetand e-commerce, and the increasing internal integration of judicialprocess within the European Community. 22 A decision wastion to delete the reciprocity portion of section 7 failed. See Actions TakenWith Respect to Drafts Submitted at 2004 Annual Meeting (American Law Institute,Fall 2004), at http://www.ali.org.21. See generally Brussels Convention, supra note 11; Brussels Regulation,supra note 12; Lugano Convention, supra note 12; see also RECOGNITIONAND ENFORCEMENT OF FOREIGN JUDGMENTS OUTSIDE THE SCOPE OF THEBRUSSELS AND LUGANO CONVENTIONS (Gerhard Walter & Samuel P.Baumgartner eds., 2000).22. See Hague Conference on Private International Law, InternationalJurisdiction and Foreign Judgments in Civil and Commercial Matters (HagueConference), Some Reflections on the Present State of Negotiations on theJudgments Project in the Context of the Future Work Programme of the Conference,Prel. Doc. No. 16 (Feb. 2002) [hereinafter Hague Conf. Prelim. Doc.No. 16], available at http://www.hcch.net/e/workprog/jdgm.html (last visitedOct. 7, 2004); Hague Conference, The Impact of the Internet on the Judgments

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 7made after 2001 to put a comprehensive convention on hold andinstead to tackle a smaller project. 23 As discussed in more detailbelow, these recent attempts to negotiate a scaled-back conventionthat would address choice of court clauses in the commercial contextoffer significant hope for progress in enforcing foreign judgmentsresulting from consensual agreements and providecertainty to businesses in selecting fora for resolution of subsequentdisputes. In the process, this commercial choice of courtconvention also offers a lis pendens solution to parallel litigationcontrary to forum selection clauses.II. PARALLEL PROCEEDINGS – WHAT GOES AROUND COMES AROUNDAt first blush one might question the relationship of parallelproceedings and enforcement of judgment in the internationalcontext. Yet if one views the process of litigation as a chronologicaltimeline, one of the crucial questions driving initial filing considerationsis the possibility of, and potential problems with, enforcingany resulting judgment at the end of the suit. 24 Along the way,Project: Thoughts for the Future, Prel. Doc. No. 17 (Feb. 2002) (prepared byAvril D. Haines) [hereinafter Hague Conf. Prelim. Doc. No. 17], available athttp://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); HagueConference, Reflection Paper to Assist in the Preparation of a Convention onJurisdiction and Recognition and Enforcement of Foreign Judgments in Civiland Commercial Matters, Prel. Doc. No. 19 (Aug. 2002) (prepared by AndreaSchulz) [hereinafter Hague Conf. Prelim. Doc. No. 19], available athttp://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); HagueConference, The Relationship Between the Judgments Project and Other InternationalInstruments, Prel. Doc. No. 24 (Dec. 2003) (prepared by AndreaSchulz) [hereinafter Hague Conf. Prelim. Doc. No. 24], available athttp://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); see alsoFausto Pocar, The Drafting of a World-Wide Convention on Jurisdiction andthe Enforcement of Judgments: Which Format for the Negotiations in TheHague?, in LAW AND JUSTICE, supra note 8, at 191.23. Commission I on General Affairs and Policy of the Nineteenth DiplomaticSession met in April 2002 and decided “to move to an interim informalprocess, exploring new ways of negotiating. . . .” Hague Conf. Prelim. Doc. No.19, supra note 22, at 5-15; Letter of Hans van Loon, Secretary General ofthe Hague Conference, Convocation Special Commission on Judgments, 1-9December 2003 (August 19, 2003) (copy on file with author). For the latestdraft of the Choice of Court Convention, as well as the older and more ambitiousdrafts, see the Hague Conference on Private International Law=s website,at http://www.hcch.net/e/workprog/jdgm.html.24. See generally TRANSNATIONAL LITIGATION, supra note 6, at 101-05; seediscussion infra Part VI.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM8 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1one may have to reevaluate both the choice of initial forum andpotential enforcement several times during the litigation processbased on decisions and actions of the opposing party. Indeed onefactor determining initial filing or subsequent strategy might bethe existence of an earlier-filed action in another forum or a subsequentlyfiled defensive action in another forum. Parallel proceedingsexist because of concurrent jurisdiction, both adjudicativeand prescriptive. 25 Problems of enforcement of foreign judgmentsarise in part from differing notions of adjudicative and prescriptivejurisdiction. Thus, when Country B is faced with the issue ofenforcing a judgment from Country A, it must consider whetherCountry A, the rendering forum, had an acceptable basis for personaljurisdiction and whether it had the power to regulate theparticular conduct. Often Country B is faced with this problemwhile there is still ongoing litigation or arbitration of the same orrelated matter, in Country B or in Country C, a third unrelatedcountry. Alternatively, Country B has to decide which of morethan one judgment it should recognize. Thus, the same problemsmotivating parties to file more than one proceeding also impacteventual enforcement.The response of other countries to parallel proceedings is expressedunder various doctrines which govern the enjoining ofparty participation in foreign proceedings or the staying of pendingproceedings. Countries that are signatories of the BrusselsConvention, now the Brussels Regulation, or the Lugano Conventionadopt a strict lis pendens rule that jurisdiction generally restswith the court first obtaining jurisdiction, and other litigation isstayed “until such time as the jurisdiction of the court first seisedis established.” 26 The Regulation leaves no discretion for the courtto defer in favor of another court, other than the one first seizedunder the Regulation (or Convention). 27The lack of shared standards for parallel proceedings –25. Adjudicative jurisdiction refers to personal jurisdiction, or the court=spower over a person or entity. Prescriptive jurisdiction refers to a state orcountry=s ability “to make its law applicable to the activities, relations, orstatus of persons, or the interest of persons in things. . . .” RESTATEMENT(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 401 (1987) [hereinafterRESTATEMENT].26. Brussels Regulation, supra note 12, art. 27(1).27. Brussels Convention, supra note 11, art. 21. See discussion infra PartV.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM10 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1bring actions in the United States. 31 Similarly, the existence of differentunderlying substantive law and forum bias for its own lawalso encourage filing suit on “home ground,” even if suit is alreadyfiled elsewhere. Parallel proceedings may also be purely vexatious,intended to increase the burdens on an opponent and the cost andtime of litigating.Regardless of the reasons for the multiple proceedings, thereare three possible responses: (1) stay or dismiss the domestic action;(2) enjoin the parties from proceeding in the foreign forum(referred to as an antisuit injunction); or (3) allow both suits toproceed simultaneously, with the likely attendant race to judgment.The proliferation of multiple proceedings has led to a varietyof approaches, both here and abroad, which are reflected inU.S. decisions. Often the analyses, developed purely for domesticuse, for responses (2) and (3) are intertwined; when a request forresponse (2) is denied, response (3) is the usual result. Thus, therules for allowing parallel proceedings and issuing antisuit injunctionsare reverse images. There are of course variations on theseresponses, both among foreign countries and within the UnitedStates. 32The approach traditionally urged in U.S. courts as to litigationin multiple forums has been to allow parallel proceedings tocontinue simultaneously: “[P]arallel proceedings on the same inpersonam claim should ordinarily be allowed to proceed simultaneously,at least until a judgment is reached in one which can bepled as res judicata in the other.” 33 International litigation dispersedin multiple countries is treated as analogous to lawsuits indifferent states within the United States. It is impossible to consolidateactions in two states or in two countries without first departingfrom one system, either through dismissal or stay. Once31. “As a moth is drawn to the light, so is a litigant drawn to the UnitedStates.” Smith Kline & French Labs. Ltd. v. Bloch, [1983] 1 W.L.R. 730 (C.A.1982) (Lord Denning, MR).32. For example, a court may dismiss an action rather than stay it. Theresponse to a forum non conveniens motion in a U.S. federal court is dismissal.In some states, such as California, the response is a stay.33. Laker Airways, Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909,926-27 (D.C. Cir. 1984); see also Scheiner v. Wallace, 832 F. Supp. 687, 693(S.D.N.Y. 1993), dismissed by, sanctions disallowed, 860 F. Supp. 991(S.D.N.Y. 1994) (“general rule of comity requires domestic court to exercisejurisdiction concurrently with foreign court”).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 11one suit has reached judgment, the prevailing party generallyseeks to foreclose further action in the remaining suit. 34 While thisapproach works within the United States where the constitutionalguarantee of full faith and credit extends to a sister state’s judgment,there is no international equivalent to the Full Faith andCredit Clause. First to judgment does not mean first to enforcement.In the international arena, when a party seeks to enforcethe judgment from the first-finished suit in the second country, relitigationmay be necessary, at least when the rendering forum isthe United States and the enforcing forum is outside the UnitedStates.A second potential response to parallel proceedings is to deferto another forum, either (1) staying the pending action until an actionin another forum is resolved or (2) dismissing the pending action,with or without conditions, in favor of an action pending inanother forum. Generally, the basis for requesting a stay is the inconvenience,practical or financial, of litigating in several locations.Indeed, in American practice, parties often join the motionto dismiss for forum non conveniens with an alternative motion tostay. 35 American courts have shown inconsistency in their willingnessto defer to courts of other sovereigns. The difficulty arises indeciding whether to categorize parallel proceedings between aU.S. court and a foreign court as analogous to the state/federal,state/state or federal/federal relationship, 36 since there are differentprecedents for each relationship. 3734. See, e.g., Scheiner, 832 F. Supp. at 693.35. Some U.S. federal courts have treated motions to stay pending foreignproceedings as equivalent to, or together with, motions to dismiss for forumnon conveniens. See, e.g., Philadelphia Gear Corp. v. Philadelphia GearCorp. de Mexico, 44 F.3d 187 (3d Cir. 1994). The assumption that staying anaction allows the result in the foreign action to control is only partially correctsince it does not take into consideration the ultimate issue of recognitionand enforcement of judgments and the location of assets that might be usedto satisfy the judgment.36. Compare, e.g., Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines,925 F.2d 1193, 1195 (9th Cir. 1991) (rejecting notion that a federal court owesgreater deference to foreign courts than state courts), with Brinco Mining,Ltd. v. Federal Ins. Co., 552 F. Supp. 1233, 1242-43 (D.D.C. 1982) (treatingstandard as same as between two federal courts). See, e.g., AAR Int=l, Inc. v.Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001); Posner v. Essex InsuranceCo., 178 F.3d 1209 (11th Cir. 1999); Szabo v. CGU Int=l Ins., PLC,199 F. Supp. 2d 715 (W.D. Ohio 2002).37. See General Electric Co. v. Deutz AG, 270 F.3d 144, 150, 152 (3d Cir.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM12 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1This is particularly true when the federal court chooses to deferor declines to proceed. When the federal court has jurisdictionbut chooses not to exercise it in deference to another proceeding,usually that of a state, this discretionary refusal implicates thedoctrine of abstention. However, when the federal court defers to acourt of another country rather than a state, the argument is generallycouched in terms of “comity.” 38 While comity initially wasconsidered in connection with recognition and enforcement of aforeign judgment, amounting to giving extraterritorial effect toanother sovereign’s laws, its use has been extended to a generalconcept of “courtesy.” Comity then becomes a basis for a federalcourt to abstain from acting, including refusing to enjoin parallelproceedings, 39 and has become enmeshed in the federal abstentioncase law, reflecting another attempt to squeeze transnational litigationproblems into the existing mold of domestic lawsuits.A stay in favor of proceedings in a foreign court is discretionary,based on the inherent power of the court to control its owndocket. 40 The basis for a stay in federal court has often been tiedexplicitly to judicial efficiency 41 and to the impact on the system,2001); see also Advantage Int=l Mgmt. v. Martinez, No. 93 Civ. 6227 (MBM),1994 WL 482114 (S.D.N.Y. Sept. 7, 1994):Although the Supreme Court has not addressed specifically the criteriathat courts should consider when determining the propriety ofstaying or dismissing a federal action in deference to another lawsuitpending in a foreign jurisdiction, courts faced with this issue havearticulated a standard premised, in part, on analogous SupremeCourt precedent concerning the contemporaneous exercise of jurisdictionby federal courts, or by federal and state courts. See, e.g.,Caspian Invs., Ltd. v. Vicom Holdings, Ltd., 770 F. Supp. 880, 884(S.D.N.Y. 1991) (citing Colorado River, 424 U.S. at 817).Id. at *2.38. Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). The Supreme Court definedcomity as follows:“Comity,” in the legal sense, is neither a matter of absolute obligation. . . nor of mere courtesy and good will . . . . But it is the recognitionwhich one nation allows within its territory to the legislative,executive or judicial acts of another nation, having due regard bothto international duty and convenience, and to the rights of its owncitizens or of other persons who are under the protection of its laws.Id. See generally Paul, supra note 28.39. See discussion infra Part II.B.40. See, e.g., Landis v. North Am. Co., 299 U.S. 248, 254 (1936); Trujillov. Conover & Co. Communications, 221 F.3d 1262, 1264 (11th Cir. 2000).41. One court explained the relationship this way:

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 13at least in the case of abstention under the Colorado River 42 doctrine.In Colorado River, a purely domestic case, the SupremeCourt acknowledged that federal courts had a “virtually unflaggingobligation . . . to exercise the jurisdiction given them,” 43 butproceeded to provide a checklist of factors to be balanced to determineif the case fell within one of the limited circumstances inwhich federal courts should abstain in “the presence of a concurrentstate proceeding for reasons of wise judicial administration.. . .” 44 In its subsequent refinement and limitation ofColorado River, the Supreme Court has characterized the paramountconcern in that case as “‘[the] avoidance of piecemeal litigation.. . .’” 45 Under the Colorado River doctrine, a court looks to seeif either forum has jurisdiction over the property at issue:In assessing the appropriateness of dismissal in the eventof an exercise of concurrent jurisdiction [federal/state], afederal court may also consider such factors as the inconvenienceof the federal forum; the desirability of avoidingpiecemeal litigation; and the order in which jurisdictionwas obtained by the concurrent forums . . . [no] otherNumerous factors bear on the propriety of staying litigation while aforeign proceeding is pending. They include pragmatic concerns suchas the promotion of judicial efficiency and the related questionswhether the two actions have parties and issues in common andwhether the alternative forum is likely to render a promptdisposition. Also relevant are considerations of fairness to all partiesor possible prejudice to any of them. A third group of concerns relatesto comity between nations. When as in this case the foreign actionis pending rather than decided, comity counsels that prioritygenerally goes to the suit first filed.Ronar, Inc. v. Wallace, 649 F. Supp. 310, 318 (S.D.N.Y. 1986) (citations omitted).Other cases have provided different formulations for the test to determinewhether to grant a stay. See, e.g., Dragon Capital Partners L.P. v.Merrill Lynch Capital Servs., Inc., 949 F. Supp. 1123 (S.D.N.Y. 1997); ContinentalTime Corp. v. Swiss Credit Bank, 543 F. Supp. 408, 410 (S.D.N.Y.1982) (adding temporal sequence to the factors in I.J.A., Inc. v. Marine Holdings,Ltd., 524 F. Supp. 197 (E.D. Pa. 1981)).42. Colorado River Water Conservation Dist. v. United States, 424 U.S.800 (1976).43. Id. at 817.44. Id. at 818-19.45. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16(1983) (quoting Colorado River, 424 U.S. at 819).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM14 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1factor is necessarily determinative. 46Some federal cases reflect hostility to relying on ColoradoRiver to stay cases in favor of foreign proceedings. For example,the Ninth Circuit, in a recent case it described as “an ordinarycommercial dispute over the loss of cargo,” reversed the districtcourt’s granting of a stay pending the outcome of proceedings inSwitzerland because the circuit court found no “exceptional circumstances”to justify abstention. 47 Relying on cases that involvestate/federal disputes, the court emphasized that “conflicting results,piecemeal litigation, and some duplication of judicial effortis the unavoidable price of preserving access to . . . federal relief.” 48The court then reasoned that the foreign aspect was “immaterial,”and that “no greater deference” was owed to foreign courts thanstate courts. 49In contrast to the Ninth Circuit’s approach, the U.S. DistrictCourt for the District of Columbia determined that a foreign court,in this case a Canadian one, was owed the same degree of deferenceas another federal court. 50 The court applied the ColoradoRiver test, stating that “the concerns that federalism normallypresents for a diversity court are not implicated in this case.” 51 Indismissing, the court relied on “international comity” and a “wellfoundedaversion to forum shopping on an international scale,” aswell as application of the Colorado River factors. 52A recent District Court decision within the Sixth Circuit isalso typical of the attempt to fit purely domestic doctrine into internationalproceedings. The court, facing reverse parallel declaratoryactions in connection with uninsured motorist insurance,refused to abstain in favor of the London action, relying on Colo-46. Colorado River, 424 U.S. at 818 (citations omitted).47. Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines, 925 F.2d 1193,1194-95 (9th Cir. 1991).48. Id. at 1195 (quoting Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir.1979), cert. denied, 469 U.S. 872 (1984)).49. Id. (emphasis added).50. Brinco Mining, Ltd. v. Federal Ins. Co., 552 F. Supp. 1233, 1240(D.D.C. 1982). The court stated two facts for support: (1) the other forum wasCanada, which was also a common-law country; and (2) the plaintiff was tryingto use the U.S. court to circumvent proceedings it had originally broughtin its own country. Id.51. Id.52. Id. at 1242.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 15rado River abstention: “The same principles which govern parallelstate and federal proceedings apply to parallel proceedings in aforeign court.” 53 The court proceeded to apply the eight factorsfrom Moses Cone, another domestic precedent, giving strongweight to the ability of the English insurer to litigate in theUnited States, the lack of “exceptional circumstances” to justifyabstention, and a comment by the English judge that should Ohiolaw be determined to govern, the Ohio proceedings should dealwith matters of Ohio law. 54B. Comity and International Abstention in the Last DecadeA decade ago, federal courts, led by the Eleventh Circuit, beganespousing a new doctrine of deference described as “internationalabstention,” a term reflecting the inconsistent precedents.This doctrinal approach – while similar to “comity” as used bysome courts, such as those in the Second Circuit 55 – takes its rootsinitially from the federal abstention doctrine involving federal andstate proceedings. In one of the first major international abstentioncases, Turner Entertainment Co. v. Degeto Film GmbH, 56 theEleventh Circuit, in a later-filed reverse breach of contract suit,deferred to pending German litigation in connection with proceedingsinvolving a license agreement concerning television broadcasts.The court acknowledged a duty to exercise jurisdiction, butproceeded to consider the two lines of precedent, and to create an53. Szabo v. CGU Int=l Ins., PLC, 199 F. Supp. 2d 715, 719 (S.D. Ohio2002) (citing AAR Int=l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7thCir. 2001)).54. Id. at 720-21.55. See, e.g., Rapture Shipping, Ltd. v. Allaround Fuel Trading B.V., No.03 Civ. 738 (JFK), 2004 WL 253339 (S.D.N.Y. Feb. 10, 2004) (holding thatpursuant to the principles of comity, the judgment of a Netherlands courtwould be honored); Aquinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996)(dismissing on grounds of international comity and forum non conveniens aclass action brought by Ecuador residents against a U.S. oil company fordamages caused by oil exploration), vacated, Jota v. Texaco, Inc., 157 F.3d153 (2d Cir. 1998) (dismissing for forum non conveniens subject to conditionof Texaco=s consent to jurisdiction in Ecuador), remanded to Aquinda v. Texaco,Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001) (holding that because Texacohad submitted to jurisdiction in Ecuador, and the strong presumption forplaintiff=s forum was overcome by private and public factors favoring the alternativeforum, Texaco=s motion to dismiss on forum non conveniens groundswas granted), aff=d, 303 F.3d 470 (2d Cir. 2002).56. 25 F.3d 1512 (11th Cir. 1994).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM16 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1international abstention doctrine:This circuit has never considered the question of “internationalabstention.” In other federal courts, at least twodistinct but very similar approaches to international abstentionhave developed. Both have lifted criteria foranalysis from case law concerning concurrent jurisdictionbetween federal and state courts.. . . These two sets of principles overlap to a large extent,and we find both lines of cases helpful to our analysis.Taking the two approaches together, courts havesought to fashion principles that will promote three readilyidentifiable goals in the area of concurrent internationaljurisdiction: (1) a proper level of respect for the actsof our fellow sovereign nations – a rather vague conceptreferred to in American jurisprudence as internationalcomity; (2) fairness to litigants; and (3) efficient use ofscarce judicial resources. 57The court also considered fairness, which was composed of threeelements: (1) order of filing; (2) convenience of the forum; and (3)possible prejudice to the parties resulting from abstention. 58A similar result was reached in the later Eleventh Circuitcase, Posner v. Essex Insurance Co., 59 where the court rejected theargument that the Supreme Court=s decision in Quackenbush v.Allstate Insurance Co. 60 was relevant to domestic cases. In Quack-57. Id. at 1518.58. Id. at 1521-22.59. 178 F.3d 1209, 1222-24 (11th Cir. 1999).60. 517 U.S. 706 (1996). Some federal courts, especially the districtcourts, appear to have hastily seized upon the language in Quackenbushabout the ability of a federal court to dismiss only in cases of equitable relief,and therefore these courts have emphasized the need to “stay” as opposed to“dismiss” the pending United States litigation.For an interesting discussion of the issue of applying Quackenbush inthe international context and the need for a stay, rather than a dismissal, see767 Third Avenue Assocs. v. Consulate General of the Socialist Fed. Republicof Yugoslavia, 60 F. Supp. 2d 267, 278-82 (S.D.N.Y. 1999), in which the DistrictCourt stayed litigation involving a dispute over rented diplomatic officesin connection with the disintegration of Socialist Federal Republic of Yugoslaviaas a non-justiciable political question:The deference that is necessary here is deference to an executivebranch foreign policy determination, which itself is a policy of defer-

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 17enbush, the Supreme Court surveyed the domestic abstention doctrinesand held that federal courts had the power to dismiss orremand only in equitable relief cases. 61 In Posner, a Florida individualand majority shareholder of SMC, a privately held Marylandcorporation, sued Essex, a Bermuda insurer that was owned35% by SMC and 65% by Salem, a Pennsylvania corporation ofwhich Posner owned 49%. The suits alleged a variety of claims, includingfinancial mismanagement and breach of contract, in connectionwith failure to pay claims on insurance policies. Essex,after denying the claims, filed a declaratory judgment action inBermuda on the validity of the insurance policies.The district court dismissed all claims in the United States ongrounds of personal jurisdiction or international abstention. 62 Inreviewing the portion of the lower court=s action dismissing in favorof the parallel Bermuda litigation, the Eleventh Circuit addressedthe plaintiff=s argument that Quackenbush removes thediscretion of the district court to abstain in a nonequitable claim,the sort at issue here: 63 “Read in the proper context . . . the SupremeCourt’s admonition that courts generally must exercisetheir non-discretionary authority in cases over which Congresshas granted them jurisdiction can apply only to those abstentiondoctrines addressing the unique concerns of federalism.” 64 Findingthat Quackenbush did not control in the realm of internationallitigation and that Turner was the controlling precedent, the EleventhCircuit then applied the three Turner factors to decide whatto do in relation to an earlier-filed Bermuda action. The court reviewedthe basis for abstention, finding that the Bermuda forumwas competent, that it was fair to allow the earlier-filed Bermudaaction to proceed, but modified the dismissal to a stay. 65 The Elevenceto ongoing international efforts. The principles underlying thechoice of a stay over a dismissal apply equally when the deferencemotivating abstention bases not on constitutional federalism andfederal-state comity, but instead, as here, on constitutional separationof powers and national-international comity.Id. at 282.61. Quackenbush, 517 U.S. at 731.62. Posner, 178 F.3d at 1213-1214.63. Id. at 1222-1223.64. Id. at 1223.65. Id. at 1224. The Court stated:With respect to the first factor, international comity, the district

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM18 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1enth Circuit, although abstaining in favor of parallel foreign litigation,correctly acknowledged that domestic abstention doctrinesare inapplicable to relationships “between federal courts and foreignnations (grounded in the historical notion of comity).” 66 TheEleventh Circuit has continued to create a jurisprudence that recognizesthe differences between domestic and international litigation,as illustrated by the decision in Posner. 67Comity as the basis for staying U.S. litigation in deference toforeign litigation, especially when the foreign suit was filed first,has become an increasingly acceptable approach during the lastdecade, even in light of the intervening Quackenbush decision.The doctrine of international abstention explicitly incorporates“comity” through the first factor of “proper respect.” 68 Courts havecontinued to cobble together a collection of factors to considerwhen deciding whether to abstain in the international context.Courts have begun to realize the “overarching concerns for a federalcourt facing concurrent international jurisdiction includingdemonstrating a proper level of respect for the acts of other sovereignnations, ensuring fairness to litigants, and efficiently usingscarce judicial resources.” 69In another example during the decade, Goldhammer v. Dunkin=Donuts, Inc., 70 involving proceedings in two common-law focourtfound no evidence that the Bermuda court was not competentto hear the claims or would not use fair and just proceedings . . . .The district court also noted that the insurance “policies are governedby Bermuda law, and their underwriter Essex, is a Bermudacorporation”. . . . As the district court recognized, the second andthird Turner factors – fairness and judicial resources – also counselin favor of abstention. With respect to fairness, the facts that Essexfiled a year before the commencement of this case, and allowing bothactions to proceed risks inconsistent judgments, outweigh any conveniencethat the parties might enjoy in the Florida forum. Finally. . . they . . . involve significantly common issues and parties.Id.66. Id. at 1223; see also Linear Products, Inc. v. Marotech, Inc., 189 F.Supp. 2d 461, 464-68 (W.D. Va. 2002).67. See, e.g., Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312 (11thCir. 2004); Seguros Del Estado, S.A. v. Scientific Games, Inc., 262 F.3d 1164(11th Cir. 2001).68. Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11thCir. 1994).69. Nat=l Union Fire Ins. Co. of Pittsburgh, Pa. v. Kozeny, 115 F. Supp.2d 1243, 1247 (D. Colo. 2000).70. 59 F. Supp. 2d 248 (D. Mass. 1999).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 19rums, 71 a District Court in the First Circuit also considered defendant=smotion to dismiss the U.S. lawsuit in favor of an earlierfiledEnglish action. The court put together a “roster of relevantfactors” for ruling on the motion, taken from earlier cases in severalcourts, 72 including: (1) similarity of parties and issues (hereminimal differences); (2) promotion of judicial efficiency (“not dispositive,”but a “key factor”); (3) adequacy of relief in the alternativeforum (here Dunkin’ Donuts U.K. claims that it will lose itsMassachusetts unfair and deceptive trade practices claim); (4)fairness and convenience of the parties, counsel, and witnesses(equal here); (5) possibility of prejudice (consideration of differentprocedures available); and (6) temporal sequence of filing. 73 Thecourt=s analysis in Goldhammer is interesting in its incorporationof significant aspects of a forum non conveniens analysis – specificallyreducing the “fairness” factor to convenience of the parties,counsel, and witnesses – and analyzing procedural differences indiscovery available in the United States, as opposed to whatamounts to the “alternative forum,” here England. 74 The impor-71. Id. at 249-50. In both concurrent litigation cases and forum non convenienscases, the significance of a common legal tradition receives someweight, even when unstated: “Because the United States and England sharethe same common law heritage, deference to British proceedings is consistentwith notions of international comity.” Id. at 254-55.72. Id. at 252. Many of the factors appear in Caspian Investments, Ltd. v.Viacom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y 1991). The facts andanalysis are also similar to Dragon Capital Partners L.P. v. Merrill LynchCapital Services., Inc., 949 F. Supp. 1123 (S.D.N.Y. 1997). See Louise EllenTeitz, International Litigation, Parallel Proceedings: Treading Carefully, 32INT’L LAW. 223, 225 (1998) [hereinafter Teitz, Treading Carefully] (discussingthe relevant factors of Dragon Capital).73. Goldhammer, 59 F. Supp. 2d. at 252-53; see also Nat’l Union Fire Ins.Co. of Pittsburgh, Pa., 115 F. Supp. 2d at 1247-49 (discussing the individualfactors); see also AAR Int=l, Inc. v. Vacanes Heliades S.A., 100 F. Supp. 2d875, 878 (N.D. Ill. 2000) (citing Finova Capital Corp. v. Ryan HelicoptersU.S.A., Inc., 180 F.3d 896, 898-99 (7th Cir. 1999)), rev’d, 250 F.3d 510 (7thCir. 2001), cert. denied, 534 U.S. 995 (2001); Sabre, Inc. v. Air Canada, Inc.,No. 3-02-CV-2016-L, 2002 U.S. Dist. LEXIS 23697, at *8 (N.D. Tex. Dec. 9,2002) (providing a list of factors to weigh in considering forum non conveniens).74. In response to Dunkin’ Donuts U.K.’s concerns that it could not takepre-trial depositions in England, the court commented on the new proceduralrules in England as yet untried: “As the federal courts grapple with controllingdiscovery costs and English courts look to expand discovery rights, soonthe key difference between the two systems might be in the wigs.” Goldhammer,59 F. Supp. 2d at 254 n.1.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM20 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1tance of comity, especially when there is a shared “common lawheritage” is stressed at several points: 75 “[N]otions of internationalcomity are at an apex when parties inject themselves into theeconomy of another nation for profit, particularly one as close asGreat Britain, and then try to extricate themselves from its jurisdiction.”76These cases illustrate the confusion and conflicting treatmentof parallel proceedings by U.S. courts involving American and foreigncourts. In addition, they demonstrate the use of “comity” as abasis for abstaining, thus deferring to another forum, as opposedto being used as justification for allowing parallel proceedings inboth forums to continue. 77 Staying parallel proceedings even when75. Id. at 254-55.76. Id. at 255-56. In MLC (Bermuda) Ltd. v. Credit Suisse First BostonCorp., 46 F. Supp. 2d 249 (S.D.N.Y. 1999), another case involving multipleproceedings in the United States and England, the federal court for theSouthern District of New York applied similar factors, taken also in part fromCaspian Invs., Ltd. v. Viacom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y1991), to dismiss the U.S. action in deference to the pending prior proceedingsin London.The court in MLC actually adds a factor not usually seen in an analysisof whether to stay or dismiss in deference to parallel litigation – the plaintiff=schoice of forum – which the court here states “is entitled to much lessweight when it is made after the filing of a concurrent action arising out ofthe same series of transactions.” MLC, 46 F. Supp. 2d at 254. The considerationof plaintiff=s choice of forum is generally reserved for forum non conveniensand personal jurisdiction analysis.The court also seems to suggest that whenever there are two suits, onlyone should proceed – the other court should, it is assumed, defer: “[D]ismissalwill likewise promote judicial economy. Where a single court is capable offairly and competently adjudicating an entire controversy, there is little reasonto divide the task between two courts.” Id. For an interesting comparison,one can look at the English proceeding involving a portion of this litigation inthe Commercial Court in London, where the court issued a limited antisuitinjunction as to certain claims, which were then eliminated from the U.S.complaint. Credit Suisse First Boston (Europe) Ltd. v. MLC (Bermuda) Ltd.,[1999] 1 Lloyd=s Rep. 767, 779-83 (Q.B. 1998).77. See, e.g., Advantage Int’l Mgt., Inc. v. Martinez, No. 93 Civ. 6227(MBM), 1994 WL 482114, at *4 n.2 (S.D.N.Y. Sept. 7, 1994) (citing ColoradoRiver, 424 U.S. at 817-18). The Court explained this concept:Courts use the terms comity and, to a lesser extent, internationalabstention, to refer to the doctrine of judicial deference to pendingforeign proceedings . . . although neither of these terms technically isappropriate. Comity refers to deference to another sovereign’s definitivelaw or judicial decision, see Hilton v. Guyot, . . . not to its preliminarydecision to enact a law or issue a judgment. Abstention is ajurisdiction limiting doctrine relevant only to a limited category of

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 21the parties and issues are not identical has been approved by severalcourts when the court foresees the ability to use the firstjudgment to preclude further litigation. 78 The longer the litigationhas been proceeding when the second suit is filed and the stagethat the initial litigation has reached appear to be decisive factorswhen ruling on a motion to stay the parallel proceeding. Courtsare reluctant to allow a party to use a late-filed subsequent actionto frustrate ongoing proceedings. When the second suit is filed inthe United States, courts are more willing to defer to the foreignproceeding, and more reluctant to enjoin the continuation of theforeign proceeding.Throughout the last decade then one finds more and morecourts, when faced with parallel proceedings, staying or dismissingthe U.S. action, especially if it is the later-filed suit, viewingthis as an appropriate response to concurrent jurisdiction and onedictated by both judicial efficiency and a growing awareness of“comity.” In addition, one finds more and more courts acknowledgingthe need for developing jurisprudence for parallel internationalcases apart from that used for domestic situations oflitigation because of the failure of domestic precedent to incorporatethe added concerns of foreign sovereigns.III. ANTISUIT INJUNCTIONS DURING THE DECADEEnjoining parties from proceeding in another forum, the thirdpossible response to parallel litigation, is clearly the most abrasive.Injunctions therefore are and should be difficult to obtain.While the injunctive relief sought is technically against the partiesrather than the foreign court, the impact is often the same and theoffense to the other court’s jurisdiction and sovereignty is as obvious.79 During the last decade, an increasing number of courts advocatedrestraint in the granting of antisuit injunctions, not onlycases concerning constitutional adjudication and state-federalrelations.Id.78. See, e.g., Herbstein v. Breutman, 743 F. Supp. 184 (S.D.N.Y. 1990);Black & Decker Corp. v. Sanyei Am. Corp., 650 F. Supp. 406 ( N.D. Ill. 1986).79. Cf. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996). Herethe Fifth Circuit found specifically that the dispute was essentially privateand the antisuit injunction granted by the district court did not “[trample] onnotions of comity.” Id. at 627.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM22 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1in the United States but abroad as well, in most cases, other thanperhaps defamation cases.Federal courts in the United States deciding whether to enjoinparallel proceedings in foreign forums generally divide intotwo camps: 80 the First, Second, Third, Sixth and D.C. Circuits thatfollow the Laker “sparingly used” approach; 81 and the Fifth, Seventh,and Ninth Circuits that use the more liberal approach. 82 Assumingthat the suits involve the same parties and that theresolution of the case in the enjoining court would be dispositive of80. For a thorough discussion of the two approaches to antisuit injunctions,see George A. Bermann, The Use of Anti-Suit Injunctions in InternationalLitigation, 28 COLUM. J. TRANSNAT’L L. 589 (1990); Note, AntisuitInjunctions and International Comity, 71 VA. L. REV. 1039 (1985). For an interestinganalysis of parallel proceedings circuit by circuit, see MargaritaTrevino de Coale, Stay, Dismiss, Enjoin, or Abstain? A Survey of ForeignParallel Litigation in the Federal Courts of the United States, 17 B.U. INT=LL.J. 79 (1999); Trevor C. Hartley, Comity and the Use of Antisuit Injunctionsin International Litigation, 35 AM. J. COMP. L. 487 (1987); Russell J. Weintraub,Parallel Litigation and Forum-Selection Clauses, in LAW AND JUSTICE,supra note 8.For the Canadian perspective on antisuit injunctions and parallel proceedings,see JEFFREY TALPIS, “IF I AM FROM GRAND-MERE, WHY AM I BEINGSUED IN TEXAS?” RESPONDING TO INAPPROPRIATE JURISDICTION IN QUEBEC-UNITED STATES CROSSBORDER LITIGATION (2001). For the use of antisuit injunctionsin the U.K., see ADRIAN BRIGGS & PETER REES, CIVIL JURISDICTIONAND JUDGMENTS §§ 5.33-5.50 (3d ed. 2002). A negative declaration can also beused in lieu of an antisuit injunction. See generally Andrew S. Bell, The NegativeDeclaration in Transnational Litigation, 111 LAW Q. REV. 674 (1995).81. Laker Airways, Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909(D.C. Cir. 1984). The case itself provides a lengthy history of the litigation, aswell as a description of proceedings in England. Id. at 917-21. See also BritishAirways Bd. v. Laker Airways [1984] 3 W.L.R. 413; see generally Gary B.Born, Recent British Responses to the Extraterritorial Application of UnitedStates Law: The Midland Bank Decision and Retaliatory Legislation InvolvingUnitary Taxation, 26 VA. J. INT’L L. 91 (1985); Aryeh S. Friedman, LakerAirways: The Dilemma of Concurrent Jurisdiction and Conflicting NationalPolicies, 11 BROOK. J. INT’L L. 181 (1985); Daryl Libow, Note, The Laker AntitrustLitigation: The Jurisdictional “Rule of Reason” Applied to TransnationalInjunctive Relief, 71 CORNELL L. REV. 645 (1986).82. The liberal standard of enjoining parallel proceedings in cases of duplicativelitigation is illustrated by the Fifth and Ninth Circuit approaches,especially in In re Unterweser Reederei, GmbH, 428 F.2d 888 (5th Cir. 1970).See also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Seattle TotemsHockey Club, Inc. v. National Hockey League, 652 F.2d 852, 855-56 (9thCir. 1981). The approach is also described as consisting of the five factorsenumerated in American Home Assurance Co. v. Ins. Corp. of Ireland, Ltd.,603 F. Supp. 636, 643 (S.D.N.Y. 1984).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 23the action, courts look to see if there is an exception to the generalrule favoring concurrent litigation. The Laker approach recognizesexceptions when the injunction is necessary (1) to protect the enjoiningcourt’s jurisdiction or (2) to protect important public policyof the forum. “[D]uplication of parties and issues alone is not sufficientto justify the issuance of an antisuit injunction.” 83 The liberalstandard of enjoining parallel proceedings in cases of duplicativelitigation, as illustrated by the Fifth, Seventh, and Ninth Circuitapproaches, accords less weight to comity and more to whether thelitigation is vexatious or would result in Ainequitable hardship,@and would Atend to frustrate and delay the speedy and efficient determinationof the cause.@ 84During the last ten years, this Circuit split has continued.One can compare a recent Seventh Circuit case 85 with a recentThird Circuit case 86 to see the differences in approach and philosophy.The Seventh Circuit is aligned with the more liberal approachwhere duplication of parties and issues is a sufficient basisfor an antisuit injunction. The Seventh Circuit=s opinion reflectsan emphasis on efficiency, while that of the Third Circuit givesgreater weight to comity and respect for foreign sovereigns andtheir judicial systems. In Allendale Mutual Insurance Co. v. BullData Systems, 87 a subsidiary of a French computer manufacturer,whose parent was a French corporation ninety percent of whosestock was owned by the French government, obtained worldwideinsurance coverage from Allendale, a U.S. insurance company andits British subsidiary, FMI. A subsequent fire of suspicious origindestroyed a warehouse of computers in France valued at about$100 million. The insurance companies, responding to a claim ofloss, sought a declaratory judgment in federal court in Illinois thatthe fire was committed by arson of the insured and therefore wasoutside the policy, or that if there was no arson, then coveragewould be limited to the specific policy of FMI. Bull Data filed itsown suit in Illinois against Allendale and the insurance broker. In83. Laker, 731 F.2d at 928 (citing Compagnie des Bauxite de Guinea v.Ins. Co. of N. Am., 651 F.2d 877, 887 (3d Cir. 1981)).84. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 (5th Cir. 1996) (citingUnterweser Reederei Gmbh, 428 F.2d at 890, 896).85. Allendale Mut. Ins. Co. v. Bull Data Sys., 10 F.3d 425 (7th Cir. 1993).86. General Electric Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001).87. 10 F.3d 425 (7th Cir. 1993).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM24 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1addition, it instituted separate proceedings against FMI in theCommercial Court of Lille, France, arguably the court with exclusivejurisdiction over suits seeking enforcement of insurance policiesgoverned by the French insurance code. Allendale and FMIsubsequently asked the French court to stay its proceedings pendinga criminal investigation by a French magistrate which theyhad sought the stay was granted. 88In the midst of discovery in the American suit, Bull Data fileda motion to lift the stay and proceed in the French court. The SeventhCircuit found the timing peculiar, given that the Frenchmagistrate’s investigation of the fire was allegedly “on the verge ofcompletion.” 89 Not surprisingly, Allendale then moved in Illinoisfor a preliminary injunction against Bull Data’s continuing to litigatein the French Commercial Court, which was granted by theU.S. district court, and affirmed by the Seventh Circuit, despitethat: (1) the fire occurred in France; (2) most of the evidence wasin French and located in France; and (3) one insurance policy specificallycalled for application of the French insurance code. 90In granting the injunction, the Seventh Circuit placed greatweight on the arbitrator-like nature of the French tribunal andwhat it viewed as the French court’s insufficient experience andresources to handle a complex case 91 – a rather chauvinistic viewof international transactions. In keeping with its narrow viewpoint,the court refused to accord any weight to comity, statingthat its analysis required, unlike the stricter Laker approach, atleast some evidence that “the issuance of an injunction reallywould throw a monkey wrench, however small, into the foreign relationsof the United States.” 92 The court added:When we say we lean toward the laxer standard we donot mean that international comity should have noweight in the balance . . . . The difference between thetwo lines of cases has to do with the inferences to bedrawn in the absence of information. The strict cases presumea threat to international comity whenever an in-88. See id. at 426-27.89. Id. at 427.90. Id. at 426-27.91. Id. at 429-31.92. Id. at 431.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 25junction is sought against litigating in a foreign court. 93Yet, the court belittled the amicus brief of the Commission deControle des Assurances, the French agency that regulates the insurancebusiness in that country, and then suggested that “[w]eare given no indication, moreover, that the French commission isauthorized to speak for the French state.” 94 Ultimately, the SeventhCircuit placed great weight on the American plaintiff’s needfor a U.S. forum, as well as the major shortcomings the court perceivedin the French “court.” 95The court admitted that if the FMI policy were construed ascontaining an arbitration clause requiring dispute resolution inthe Commercial Court of Lille, it would have been forced to upholdthe clause. The court maneuvered away from that restriction, sayingthat Bull Data had not asserted the arbitration clause and insteadhad been content to litigate its dispute in Illinois federalcourt, until it suddenly tried to reactivate the French suit. 96 Suchan undercurrent of strategic litigation, designed to harass the opposingparty, receives greater weight in the Seventh Circuit thanin the stricter Second and D.C. Circuits, where comity outweighsvexatiousness. 9793. Id.94. Id. at 432.95. Emphasizing the plaintiff’s need, the court said: “we don’t think the‘strict’ cases would refuse to weigh against such a threat [sic] substantial U.S.interests. Groupe Bull is French, but Allendale is American, and the UnitedStates has an interest in protecting its citizens, including its corporate citizens,from trumped-up multi-million dollar claims.” Id.96. The court explained this point:The injunction merely prevents a French company from seeking torevive a dormant proceeding before an arbitral tribunal in France.The only concern with international comity is a purely theoreticalone that ought not trump a concrete and persuasive demonstrationof harm to the applicant for the injunction, if it is denied, not offsetby any harm to the opponent if it is granted.Id. at 432-33.97. One recent Fifth Circuit case, Kaepa, Inc. v. Achilles Corp., 76 F.3d624 (5th Cir. 1996), affirmed the district court’s grant of an antisuit injunction,without security, in connection with a mirror image lawsuit filed in Japanby the defendant in the U.S. litigation. The court, finding that the casewas basically a private contract dispute, refused to “give greater deference tocomity” and continued to adhere to the position it had taken in earlier casesand that followed by the Ninth and Seventh circuits. Id. at 625, 627. Thecourt continued: “[w]e decline, however, to require a district court to genuflect

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM26 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1The Laker approach gained a majority when the Third Circuitin 2001 officially aligned itself with the “more restrictive standard”after hinting at the importance of comity within the transnationallitigation context in several earlier cases. 98 In GeneralElectric Co. v. Deutz AG, 99 the Court of Appeals reversed the districtcourt=s order enjoining the defendant=s efforts in Englishcourts to enforce the right to arbitration on the basis of comity,and in the process rejected an argument that an important publicpolicy, “the sanctity of the jury verdict,” would be threatened withoutthe injunction. 100In Deutz, GE entered into a joint venture contract withMoteren-Werke Mannheim AG, a German corporation, to designand manufacture diesel engines for locomotives. Under the contract,Moteren-Werke=s parent, Deutz AG, would guarantee theobligations (of design) of the subsidiary. When the joint venturefell apart and Deutz refused to provide additional funding, GEbrought suit in federal court in Pennsylvania for breach of contract.Deutz, besides challenging personal jurisdiction, also assertedthat the contract required arbitration. In July 1999, whilethe suit was pending in the district court, Deutz sought to arbitratebefore the International Arbitration Association in London.The district court, meanwhile, ruled that there was personal jubeforea vague and omnipotent notion of comity every time that it must decidewhether to enjoin a foreign action.” Id. at 627. The dissent, by JudgeEmilio Garza, outlines the arguments against antisuit injunctions and in favorof international comity and the approach now used in the First, Second,Third, Sixth and D.C. Circuits, providing a passionate plea for comity:International comity represents a principle of paramount importancein our world of ever increasing economic interdependence. Admittingthat “comity” may be a somewhat elusive concept does not mean thatwe can blithely ignore its cautionary dictate. . . . Amicable relationsamong sovereign nations and their judicial systems depend on ourrecognition, as federal courts, that we share the international arenawith co-equal judicial bodies, and that we therefore act to deprive aforeign court of jurisdiction only in the most extreme circumstances.Id. at 629 (Garza, J. dissenting ).98. See, e.g., Compagnie Des Bauxites de Guinea v. Ins. Co. of NorthAmerica, 651 F.2d 877 (3d Cir. 1981), aff’d, 456 U.S. 694 (1982); ManningtonMills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979) (applying comityin connection with prescriptive jurisdiction in antitrust case); ArmstrongWorld Indus., Inc. v. Sommer Allibert, S.A., No. Civ. 97-3914, 1998 WL195938 (E.D. Pa. April 13, 1998).99. 270 F.3d 144 (3d Cir. 2001).100. Id. at 159, 162.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 27risdiction and submitted to a jury the issue of whether the contractlanguage provided for arbitration. The jury found that Deutzwas not entitled to arbitration. In April 2000, before the arbitrationpanel issued a decision, Deutz petitioned the High Court inLondon to enjoin GE from continuing to litigate in federal court inPennsylvania, which the English court declined to do. At the endof July 2000, after the London court had refused to enjoin GE andbefore the arbitral panel=s decision, GE convinced the districtcourt in the United States to do what the London court had refusedto do – issue an antisuit injunction, here with the parties reversed,and enjoin Deutz from resorting to the High Court in thefuture. In November 2000, the arbitration panel held that GE andDeutz had not agreed to arbitrate this dispute, closing the circle.101The Third Circuit, although finding that Deutz was not entitledto compel arbitration under the contract, reversed the antisuitinjunction, in the process clearly joining with those Circuitsfollowing a Laker, stricter approach to granting antisuit injunctions:102 “The circumstances here were not so aggravated as to justifyinterference with the jurisdiction of the courts of anothersovereign state, and there is no indication that the English courtswould have prevented General Electric from arguing the res judicataeffect . . . of the . . . [district court] order.” 103 In addition, theEnglish High Court had already refused to issue an injunctionagainst GE and had given no indication that it was likely to issueone. Finally, the Third Circuit rejected the argument that the publicpolicy of the forum – the importance of a jury verdict – wasthreatened by the parallel litigation. 104 Indeed, GE=s positionwould insulate any jury findings from challenge in any way out-101. Id. at 149.102. Id. at 148-49, 160-62.103. Id. at 159.104. Id. The court stated:Although the jury unquestionably has a more important role inthe American jurisprudential system than in that of any other nation,its verdict is neither infallible nor immune from judicial scrutiny.We have been cited to no authority that endorses enjoining proceedingsin a foreign court on the grounds that an American juryverdict might be called into question.Id.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM28 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1side the United States and would also undermine related arbitraltribunals, especially where there are issues of arbitrability.The Third Circuit in Deutz repeatedly acknowledges that parallellitigation involving international proceedings is differentfrom purely domestic litigation, and thus the precedent should reflectdifferent values, particularly comity. The court looks at itsown international cases and goes to great pains to show deferenceto the English High Court=s ruling: “Our jurisprudence thus reflectsa serious concern for comity. . . . This is not an aggravatedcase that calls for extraordinary intervention, nor is it sufficientthat the ruling of the arbitral panel might have jeopardized thedistrict court=s jurisdiction.” 105 The Third Circuit=s unwillingnessto accept a jury fact determination in a civil case as an essentialpublic policy of the forum is an acknowledgment that not all litigationwill or need follow the American model. The Third Circuit=sopinion represents one of the very positive steps during the lastdecade toward realization of the significant differences betweenparallel proceedings which are wholly domestic and parallel proceedingsthat involve a foreign action, thus implicating differentvalues and comity concerns.In March 2004, the First Circuit rejected the liberal approachand aligned itself with the “conservative” approach, although withsome reservations. 106 In Quaak et al. v. Klynveld Peat Marwick GoerdelerBedrijfsrevisoren, 107 a securities fraud class action litigationagainst KPMG, the accounting firm and its Belgium office,the appellate court affirmed the district court=s granting of an injunctionin connection with parallel proceedings in Belgium. 108The district court=s decision is a classic use of an antisuit injunc-105. Id. at 161-62.106. In re Lernout & Hauspie Secs. Litig, 2003 U.S. Dist. LEXIS 22466 (D.Mass. Dec. 12, 2003), aff=d sub. nom., Quaak et al. v. Klynveld Peat MarwickGoerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004).We reject the liberal approach. We deem international comity an importantinteger in the decisional calculus – and the liberal approachassigns too low a priority to that interest. In the bargain, it underminesthe age-old presumption in favor of concurrent parallel proceedings– a value judgment that leaves us uneasy – and presumesthat public policy always favors allowing a suit pending in an Americancourt to go forward without any substantial impediment.Quaak, 361 F.3d at 17.107. 361 F.3d 11 (1st Cir. 2004).108. Id. at 13-14.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 29tion to protect the court=s own jurisdiction and to prevent circumventionof important forum public policies, here the vindication ofinvestor claims for securities fraud violating U.S. law. 109 The investorssued KPMG in federal court in Massachusetts and, as partof discovery, the court ordered production of audit work papers byKPMG-Belgium in their custody by December 1, 2003. Ratherthan seeking review of the discovery order, KPMG-Belgium insteadwent into Belgium court three days before the documentswere to be produced. On November 27, Thanksgiving Day, itsought an ex parte order from the Belgian court to enjoin plaintiffsfrom enforcing the U.S. discovery order, with a significant penaltyof one million Euros against each plaintiff for attempting enforcementof the U.S. order. The Belgian court denied the ex parteapplication but scheduled a hearing for December 16, 2003. 110On December 1, when the documents were to have been producedunder the U.S. court order, KPMG-Belgium instead providedthe plaintiffs with a fax of the motion it had filed in Belgiumthree days before. The plaintiffs, obviously not happy with thisturn of events, then sought their own antisuit injunction in theU.S. court. Relying on Laker, the U.S. court looked at the traditionaltests for injunctive relief – the equitable aspects – andfound that KPMG-Belgium never contested U.S. jurisdiction andthat the plaintiffs would face irreparable injury. The court also rejectedKPMG-Belgium=s primary argument that it would facecriminal penalties in Belgium if it turned over the confidentialdocuments. 111 Ultimately, the court rejected KPMG-Belgium=sclaim of “inability to comply” with the U.S. court=s discovery orderas a pretext and granted the antisuit injunction. 112The First Circuit, reviewing for abuse of discretion, articu-109. In re Lernout, 2003 U.S. Dist. LEXIS 22466, at *21 (“I issue this orderwith reluctance because the Belgian courts and law must be treated withgreat respect. Nonetheless, KPMG-Belgium=s end-run on this Court=s jurisdictionand on the federal securities laws cannot be tolerated.”).110. Id. at *20.111. Id. at *16-21.112. This argument and the U.S. court=s response is similar to that seen incases following Societe Nationale Industrielle Aerospatiale v. United StatesDistrict Court, 482 U.S. 522 (1987), which used a balancing of the plaintiffs=attempts to get the documents by other means, the importance of the papersfor the litigation, the likelihood of harm to the defendant and the efforts toavoid that harm.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM30 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1lated its standards for the granting of an antisuit injunction, focusingon the standards set in Laker, and emphasized that it didnot view Laker as creating only two bases for injunctions, butrather as an analysis that put great weight on comity: 113In an increasingly global economy, commercial transactionsinvolving participants from many lands have becomecommon fare. This world economic interdependencehas highlighted the importance of comity . . . . This predictability,in turn, depends on cooperation, reciprocity,and respect among nations. That helps to explain the enduringneed for a presumption – albeit a rebuttable one –against the issuance of international antisuit injunctions.114The First Circuit found that the district court=s injunction, to protectits jurisdiction, was necessary and equitable under the circumstances:“In this case, the district court acted defensively toprotect its own authority from an interdictory strike and we areconfident that, in doing so, the court kept the balance steady andtrue.” 115 Thus, the granting of the antisuit injunction here reinforcesan approach that stresses a comity analysis, not only in thegranting of injunctions but throughout the discovery process andthe entire proceedings, and reflects a significant recent trend towardsacknowledging the need for respect for other legal systems.IV. IMPORTANT TRENDS OF THE LAST DECADE IN PARALLELPROCEEDINGSReviewing the developments in the last ten years, one canfind some trends emerging in the treatment of parallel proceedingsthat suggest what may happen in the next decade. Throughoutthe decade there has been a strong strain of cases reflecting anincreasing awareness of the role of comity and a willingness to deferto a foreign proceeding. One sees more open recognition of theinterconnected and interwoven nature of commercial litigation ina global economy.113. Quaak et al. v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren,361 F.3d 11, 18 (1st Cir. 2004).114. Id. at 19.115. Id. at 22.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 31A. CyberspaceMultiple lawsuits involving the internet have posed significantproblems, initially in terms of prescriptive jurisdiction, especiallyin defamation and trademark-related cases. 116 There is anincreasing likelihood of litigation seeking to enforce local domesticlaws on foreign-based websites, along with reactive litigation toenjoin the proceeding or the enforcement of any order. The underlyingproblem, concurrent jurisdiction, will continue to spawn parallelproceedings as long as there are not internationally agreednorms for conduct and control of cyberspace.The cyberspace cases tend to break into two groups: those involvingissues of free speech and defamation torts, and those involvingissues of intellectual property, especially trademark anddomain name. The cases in the second category are in many waysthe creation and byproduct of the internet. 117 Before the internet,the scope of a trade name was more limited, usually to the physicalgeographic area nearby or at most nationally. For example, thename “Crate and Barrel” in Ireland might not confuse purchasersabout the source if the internet didn=t create the possibility of usersconfusing the Dublin store with the Chicago-based chain in theUnited States. 118 But the internet and “Google” searches know nonational borders so that the new technology has made it possibleto create confusion in trade names and trademarks not previouslypossible in a bricks and mortar world. 119(1) Trademark and Domain NamesThe confusion in trademark and intellectual property rights isexacerbated by the multiple regulations concerning the use and116. See Teitz, Moving Into Cyberspace, supra note 30, at 491-42; Yahoo!,Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181(N.D.Cal. 2001), rev=d, 379 F.3d 1120 (9th Cir. 2004).117. See, e.g., Millennium Enters., Inc. v. Millennium Music, L.P., 33 F.Supp. 2d 907, 921-23 (D.Or. 1999) (analyzing whether internet contacts withthe forum state constituted sufficient minimum contacts for personal jurisdiction).118. Euromarket Designs, Inc. d/b/a Crate & Barrel v. Crate & BarrelLtd., 96 F. Supp. 2d 824, 828-29 (N.D. Ill. 2000). The parallel English litigationis Euromarket Designs, Inc. v. Peters and Crate & Barrel Ltd., [2000]E.T.M.R. 1025 (Ch. 1999) (Eng.).119. See, e.g., Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3dCir. 2003).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM32 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1registration of domain names under ICANN. 120 ICANN providesits own mandatory Uniform Domain-Name Dispute ResolutionPolicy (UDRP) for certain types of claims, generally described as“cybersquatting” or bad faith hijacking of a domain name. 121 AlthoughICANN and its authorized dispute resolution providers arenot part of a court system, the UDRP procedure is yet anotherbody where there is the potential for parallel and inconsistent proceedings.This is especially true since the United States enactedits own independent statute concerning cybersquatting, the AnticybersquattingConsumer Protection Act (ACPA), 122 which providesfor federal court subject matter jurisdiction 123 anddamages. 124 Since a court is not bound by any ICANN determination,125 there is the distinct possibility of having two inconsistentresults: “Unlike traditional binding arbitration proceedings,UDRP proceedings are structured specifically to permit the domain-nameregistrant two bites at the apple.” 126 The result of theICANN process is generally self-executing in that the domainname is transferred. On the other hand, the U.S. case law that isdeveloping in connection with domain name registration is that itis a “res,” located at the place of registration which in the UnitedStates has generally been Virginia. 127 Thus two different “sover-120. The Internet Corporation for Assigned Names and Numbers (ICANN)at http://www.icann.org (last visited October 5, 2004).121. Uniform Domain Name Dispute Resolution Policy (UDRP), athttp://www.icann.org/dndr/udrp/policy.htm (last visited October 5, 2004). Thispolicy does not apply to all types of domain names, especially those in thecountry code level. For a study of the types of dispute resolution used by somelevels, see Questionnaire on Member States’ Experiences with ccTLDs, athttp://www.itu.int/ITU-T/studygroups/com02/surveys_cctld.html (last visitedOctober 5, 2004). For example, “.co.U.K.” uses a process administered byNominet that differs from the ICANN process. See Nominet.u.k., About theDispute Reolution Service, at http:// www.nominet.org.U.K./DisputeResolution/AboutTheDrs/ (last visited October 5, 2004).122. 15 U.S.C. § 1125(d) (2004) [hereinafter ACPA].123. Id. § 1121.124. Id. § 1125(d)(2)(d).125. UDRP, supra note 121, 4(k) (“The mandatory administrative proceedingrequirements set forth in Paragraph 4 shall not prevent . . . the complainantfrom submitting the dispute to a court of competent jurisdiction forindependent resolution. . . .”).126. Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 381 (2d Cir. 2003).127. See, e.g., Barcelona.com, Inc. v. Excelentisimo Ayuntamiento De Barcelona,330 F.3d 617 (4th Cir. 2003) (finding jurisdiction proper in Virginiabecause the plaintiff=s domain name was registered in that state); America

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 33eigns,” two different standards, two different remedies and twodifferent results raise issues of parallel proceedings. 128A recent lower court case out of the Fourth Circuit, Global-SantaFe Corp. v. Globalsantefe.com, 129 illustrates the extent of themultiple proceedings possible within the context of cybersquatting– actions in Virginia, ICANN, and a Korean court. More significantly,the case also raises conflicting determinations of adjudicativejurisdiction – in this case in rem jurisdiction, which existsover the domain name itself through the location of the registry.The case involved an action against the domain holder of “globalsantefe.com,”a Korean entity who registered the domain namewith a Korean registrar, Hangsang, on September 4, 2001. 130 Lessthan one day earlier, Global Marine Inc. and Santa Fe InternationalCorp., trademark holders of their individual names, announceda planned merger to be known as GlobalSantaFe Corp.These U.S. corporations subsequently filed suit under the ACPA,claiming that the registration by the Korean registrar, HangsangSystems, Inc., infringed their domain name and sought to havethe domain name transferred to them. The sole basis for jurisdictionwas statutory under the ACPA for in rem jurisdiction over thedomain name. 131 VeriSign, Global Registry Services – the registryfor top-level “.com” domain names – is based in Virginia. In fact,the implications of in rem jurisdiction are noted by the court whenit suggests that U.S. courts could eventually have no basis for jurisdictionor no ability to cancel registration of a domain name ifthe registries are not in the United States. 132 In this case, Hang-Online, Inc. v. Aol.Org, 259 F. Supp. 2d 449, 451 (E.D. Va. 2003) (finding inrem jurisdiction was proper because the domain name registry was located inthat district); cf. Globalsantafe Corp. v. Globalsantafe.com, 250 F. Supp. 2d610, 615 (E.D.Va. 2003) (directing that in rem jurisdiction under the ACPA isappropriate only if there is no personal jurisdiction in any other district).128. Courts in the Third and Fourth Circuits have explicitly refused to bebound by UDRP determinations. See, e.g., Barcelona.com, Inc., 330 F.3d at626 ( giving no deference to an UDRP decision); Dluhos v. Strasberg, 321 F.3d365, 373-74 (3d Cir. 2003) (making a de novo review).129. 250 F. Supp .2d 610 (E.D. Va. 2003).130. The original registration was by Jongsun Park who transferred it toFanmore Corp., whose contact was Jong Ha Park. Id. at 613.131. Id. at 617 n.16.132. Id. at 623-24. The court elaborated:The current ability to assert jurisdiction over a large number of domainnames in this district pursuant to the ACPA hinges on two fac-

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM34 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1sang tendered to the court the domain name on December 20,2001. Ultimately, the now merged trademark holders obtained adefault judgment under the ACPA and an order to Verisign totransfer the domain name to them.The domain name holder, Park, not accepting the jurisdictionof the Virginia federal court over the domain name, filed an applicationin Korea to enjoin Hangsang from transferring the domainname under the U.S. court order. Several months later, on September17, 2002, the Korean court granted the injunction, findingthat the Virginia federal court did not have jurisdiction. 133 Likemany parallel proceedings, the actions are often the result of differingnotions of the scope of personal jurisdiction. And like manyparallel proceedings, the result is two conflicting orders – in thiscase, one from the Korean court ordering the Korean registrar,Hangsang, not to transfer the domain name, and one from theU.S. court, ordering the Registry, VeriSign, to cancel the domainname. Thus the Registry found itself facing conflicting orders.Unlike many of the contemporary parallel proceedings sagas,the U.S. district court=s opinion considers the international comityimplications and issues of abstaining or deferring to the Koreanaction. The court relies on the Princess Lida doctrine, a doctrinederived from a 1939 Supreme Court case. 134 Like many whollydomestic precedents, it has been expanded to cover domestic andforeign litigation, establishing a straight “first in time” rule for jurisdictionover the “res.” Unfortunately, the court=s discussion ofthe application of the first in time rule and the Korean court=s decisionillustrates the fundamental differences in the bases for jurisdiction.The question in part is whether jurisdiction over thedomain name should be determined by where the registrar is orwhere the registry is, and where the “res” or domain name is lotors,(i) the location of VeriSign within this district and (ii) the currentpopularity of the “.com” and “.net” top-level domain names. . . .[A] desire to avoid United States jurisdiction may cause foreign registrantsto choose to use domain names within their respective countrycode top-level domains, whose registries are located in andoperated by the foreign countries . . . . The result may be an increasingnumber of domain names registered out of reach of United Statesjurisdiction . . . .Id.133. Id.134. Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 35cated. 135 In fact, the case is an example of the attempts to expandtraditional notions of “property” and personal jurisdiction to coverintangibles located in cyberspace. Here, since the trademark holdershad won the race for the res (domain name), the court decidesit would be inappropriate to recognize the foreign court order. 136The court then gives lipservice to an obligation to consider “theimportant question of comity among nations.” 137 Ultimately, thecourt decides comity is not required because (1) it only applies to“current” proceedings and the proceedings are not current asjudgment has entered; (2) the Korean action was deliberately designedto block the U.S. action; and (3) the forum has a significantinterest in protecting its own trademark holder=s rights. 138 In theend, the court=s strongest argument for refusing to abstain is “thatJudgment supports significant public policies under United Stateslaw” 139 of trademark, and after all, the U.S. court had jurisdictionfirst – at least under U.S. jurisdiction theories. It is clear thatthere is a distinct possibility of conflicting results today, and thisis even more likely to occur as more country codes are opened upand more registrars are involved in more countries. 140Because of the nature of the internet, parallel proceedings arealso likely in the future to include consumers who may or may notalso be acting as small business enterprises. The role of consumersand the different mandatory law applicable to them was one of thesignificant stumbling blocks to the negotiations of a comprehensiveworldwide treaty on jurisdiction and enforcement of judgmentsat the Hague, 141 and continues to create issues for aspects135. GlobalSantaFe, 250 F. Supp. 2d at 625 n.42.136. Id. at 625 (citing Sec. & Exch. Comm=n v. Banner Fund Int=l, 211 F.3d602, 611-12 (D.C. Cir. 2000)).137. Id. at 626.138. Id.139. Id.140. The most recent addition to providers is the Asian Domain Name DisputeResolution Centre (ADNDRC) which was approved on February 28,2002. ICANN, Approved Providers for Uniform Domain-Name Dispute-Resolution Policy, at http://www.icann.org/dndr/udrp/approved-providers.htm(last visited Oct. 8, 2004). ICANN also states that the UDRP has beenadopted by the following registrars: “.aero,” “.biz,” “.com,” “.coop,” “.info,”“.museum,” “.name,” “.net,” and “.org” top-level domains. ICANN, UniformDomain-Name Dispute-Resolution Policy, at http://www.icann.org/udrp/ (lastvisited Oct. 8, 2004).141. See Hague Conf. Prelim. Doc. No. 17, supra note 22; see generally

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM36 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1of the smaller choice of court convention. 142 Many of the smallbusiness issues are intertwined with intellectual property concernsand arise in connection with the scope of coverage of theconvention. Small business and nonprofit organizations – as usersof licenses and other forms of intellectual property – often withinthe context of the internet are concerned with jurisdiction and enforcementof judgments, but frequently only as a result of their resistanceto underlying substantive law issues, such as validity ofnon-negotiated contracts made online. 143 Thus often the stumblingblocks to enforcement are also the causes of parallel proceedings.(2) Speech RegulationConflicting regulations of commercial activities and speechare clearly leading to parallel litigation as evidenced by Yahoo!,Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 144 which isillustrative of this new wave of parallel litigation that involves theregulation of conduct occurring on the internet. Cases such asYahoo, Gutnick, 145 and Harrods 146 reflect the uncertain reach ofprescriptive jurisdiction in cyberspace. Of the three cases, Yahoois both the best-known and the most problematic. The Yahoo reversedeclaratory judgment suit in federal court in Californiastarkly pitted French anti-Nazi speech regulation against U.S.INTERNET, WHICH COURT DECIDES? WHICH LAW APPLIES? PROCEEDINGS OF THEINTERNATIONAL COLLOQUIUM IN HONOUR OF MICHEL PELICHET (Katharina Boele-Woelki& Catherine Kessedjian eds., 1998) [hereinafter INTERNET, WHICHCOURT DECIDES?]; WHO RULES THE NET? A NEW GUIDE TO NAVIGATING THEPROPOSED RULES OF THE ROAD FOR CYBERSPACE (Adam Thierer & ClydeWayne Crews, eds., 2003).142. See Stratton Shartel, Hague Delegates Find Consensus, Narrow Disputes,as Diplomatic Conference Nears, 9 ELEC. COMMERCE AND LAW REP. 450(May 12, 2004); Stratton Shartel, Hague Delegates Revise Choice of CourtConvention, but Some Concerns Remain, 8 ELEC. COMMERCE AND LAW REP.1134 (December 17, 2003).143. See INTERNET, WHICH COURT DECIDES?, supra note 141, at 80-81;Hague Conf. Prelim. Doc. No. 17, supra note 22, at 8.144. Yahoo!, Inc. v La Ligue Contre Le Racisme et L=Antisemetisme, 169F. Supp. 2d 1181 (N.D. Cal. 2001), rev=d, 379 F.3d 1120 (9th Cir. 2004).145. Gutnick v. Dow Jones & Co., (2001) V.S.C. 305, appeal dismissed,Dow Jones & Co., Inc. v. Gutnick, (2002) 194 A.L.R. 433 (Austl.).146. Dow Jones & Co. v. Harrods Ltd., 237 F. Supp. 2d 394 (S.D.N.Y.2002), aff=d, 346 F.3d 357 (2d Cir. 2003). The parallel English litigation isHarrods Ltd. v. Dow Jones & Co., Inc., [2003] EWHC 1162 (Eng. 2003).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 37First Amendment protections. 147 Although the underlying substantiveissue has been addressed within the context of enforcingforeign defamation judgments, 148 the addition of the criminalsanction 149 and the use of cyberspace raise new issues, includingthe ability to block access within the limits of new technology.The first Yahoo suit was filed in Paris 150 by two groups – theUnion of Jewish Students and LICRA, the International Leagueagainst Racism and Antisemitism – seeking to enforce Frenchlaws that forbade the sale of Nazi-related goods, in this casethrough Yahoo=s U.S.-based portal. 151 In addition, they sought tocompel Yahoo to pay penalties for violating the French Penal Codein the amount of 100,000 Francs per day for every day that Yahoocontinued to violate the law. 152 In May 2000 the French court requiredYahoo to block French users from accessing the Nazirelatedgoods on the U.S. website, Yahoo.com, and found that theselling or displaying of Nazi material “was a threat to the publicorder.” 153 The Paris court appointed a panel of experts to determinethe validity of Yahoo=s claim that it was not feasible techno-147. See Yahoo!, 169 F. Supp. 2d at 1192-93.148. See, e.g., Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995)(mem.) (applying Maryland Uniform Foreign-Money Judgments RecognitionAct); Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL419847, at *1 (S.D.N.Y. May 4, 1994) (mem.); Bachchan v. India AbroadPubl’ns Inc., 585 N.Y.S.2d 661 (Sup. Ct. 1992); see generally TRANSNATIONALLITIGATION, supra note 6, at 271-73.149. A French court indicated that it would bring criminal actions againstYahoo and its former president, with an initial trial date set for May 7, 2002.League Against Racism & Antisemitism – LICRA & Yahoo! Inc., T.G.I., Paris,20 Nov. 2000, Interim Order No. RG: 00/05308, 4 [hereinafter LICRA], translationavailable at http://www.cdt.org/speech/international/001120yahoofrance.pdf. If found guilty, the former president could have beensentenced to up to five years in prison as well as fined. On February 11,2003, the charges were dropped. Kerry Shaw, French Court Rejects SuitAgainst Yahoo, NEW YORK TIMES, Feb. 12, 2003, at C9.150. LICRA, supra note 149. The initial injunction was issued on 22 May2000. Id. at 2.151. Id. at 4. (stating that “the simple act of displaying such objects inFrance constitutes a violation of Article R645-1 of the Penal Code and thereforea threat to the public order.”).152. Id. at 20.153. Id. at 2-4. Yahoo! Inc., a California-based corporation, has a Frenchsubsidiary, Yahoo France, that operates a server in France but has not violatedthe French penal code since it does not display links to Nazi-relatedweb sites. Id. at 18-20.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM38 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1logically or financially to block French users from its servers inthe United States. In November 2000, the Paris court, relying onthe reports of some of the experts, upheld the determination thatYahoo must comply within three months of the order or face finesof 100,000 Francs per day. 154In response to the Paris suit, Yahoo filed a second suit in federalcourt in San Jose, California, seeking a declaratory judgmentthat the French judgment was not enforceable in the UnitedStates and that the French court lacked jurisdiction to control Yahoo=sU.S.-based website. 155 Since Yahoo had no significant assetsin France, any attempt to enforce the French fines would probablyrequire an action in the United States where Yahoo had assets.The district court ultimately determined that it had personal jurisdictionover the defendants, that the controversy was not mootand that the possibility of enforcement was real. 156 The districtcourt went to great pains to stress what it viewed as the purposeof the U.S. action: “Rather, the purpose of the present action is todetermine whether a United States court may enforce the Frenchorder without running afoul of the First Amendment. . . . [A]United States court is best situated to determine the applicationof the United States Constitution.” 157 Rejecting the defendants=request for abstention, the district court granted summary judgmentfor Yahoo and found that enforcing the judgment would beinconsistent with the First Amendment. In so doing, it reliedheavily on earlier cases refusing to enforce British libel judgments.158 The court indicated that this holding applied even if Yahoohad the technological ability to block access as required by theFrench court. In passing, the court suggested that the constitu-154. Id. at 20.155. The complaint in the United States, Yahoo! Inc. v. La Ligue ContreRacisme et L=Antisemetisme, C00-21275 PVT ADR (N.D. Cal. December 21,2000) is available at www.cdt.org/speech/international/001221yahoocomplaint.pdf. The case is also discussed in Mylene Mangalindan& Kevin Delaney, Yahoo! Ordered to Bar the French From Nazi Items,WALL ST. J., Nov. 21, 2000, at B1. The suit also sought an injunction to preventFrench Anti-Semitism advocacy groups from trying to enforce theFrench judgment in the United States. Yahoo! Inc., C00-21275 PVT ADR at12, 13.156. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L=Antisemetisme, 169F. Supp. 2d 1181 (N.D. Cal. 2001).157. Id. at 1191-92.158. Id. at 1192-93.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 39tional protection of speech might trump any treaty or conventionin connection with speech that originated in the United States. 159The Ninth Circuit, after more than a year and a half of deliberations,reversed the District Court=s decision. 160 The court heldthat it did not have personal jurisdiction over the French defendants.161 By deciding the case on personal jurisdiction grounds,the court left open many questions regarding the regulation of theinternet. In the interim, the French court dismissed the criminalcharges that had been filed against Yahoo and its former CEO. 162Yahoo has since instituted policies restricting content that is“hateful or racially, ethnically or otherwise objectionable,” andalso requiring compliance with all applicable foreign laws. 163Who regulates conduct in cyberspace and what happens in therealm of concurrent jurisdiction are far from settled. While theremay be no international judgments convention in place as yet, 164for the multinational corporation the Yahoo litigation is but aharbinger of what is to come when the local laws conflict with U.S.values and policies. A significant part of the litigation will turn onwho controls the cyberspace in which the conduct is occurring.Electronic commerce that travels across the unmarked boundariesof cyberspace has generated high profile disputes as multiple jurisdictionstry to regulate and control cyberspace. The attempt tosubject the users of cyberspace to the laws of competing jurisdictionsresults in inconsistent regulation reflecting different legalvalues and cultures, and a friction that was more theoretical thanreal in an everyday context ten years ago. Areas such as defamation,intellectual property, and securities law are ripe for frictionamong courts. The recent Australian suit against the Dow Jones159. Id. at 1193 (“Absent a body of law that establishes internationalstandards with respect to speech on the Internet and an appropriate treaty orlegislation addressing enforcement of such standards to speech originatingwithin the United States, the principle of comity is outweighed by the Court=sobligation to uphold the First Amendment.@).160. The case was argued before the Ninth Circuit in December 2002. Yahoo!,Inc. v. La Ligue Contre Le Racisme et L=Antisemetisme, 379 F.3d 1120,1120, 1127 (9th Cir. 2004).161. Id. at 1126-27.162. The charges were dropped on February 11, 2003. See supra note 149.163. See Yahoo Terms of Service, No. 6 Member Conduct, athttp://docs.yahoo.com/info/terms/ (last visited October 8, 2004).164. See discussion infra Part VII.A.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM40 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1for defamation based on the internet publication of an article fromthe Wall Street Journal 165 is likely to recur, raising the question ofwhere a defamation actually occurs and whether an internet publisheris liable wherever an article can be downloaded or accessed.The amount of parallel litigation generated by issues of concurrentprescriptive jurisdiction is likely to increase exponentially, especiallyin cyberspace and areas where there is a lack of consensuson underlying substantive law and value, unless jurisdiction canbe limited by the effects doctrine, targeting and disclaimers? 166B. Forum Selection ClausesA second trend in parallel proceedings that has continued toemerge is the number of cases that involve proceedings outside ofor contrary to a choice of court or choice of forum clause. Sometimesthe alternative forum is an arbitral tribunal. Many of thecases raise questions of interpretation and scope of the clauses,especially in connection with multiple parties who may not be partof the underlying contractual transaction. Chosen courts may beasked to restrain parties from continuing other proceedings; nondesignatedcourts may be asked to stay actions in deference to thedesignated forum. The trouble arises when the two courts involveddisagree in interpretation, scope, or validity of the forum selectionclause. The new Hague Conference Draft Choice of Court conventionseeks to reduce some of this parallel litigation, as discussed inPart VII. This dilemma of varying interpretations or standards ofsubstantive validity is one inherent in any transnational disputeon choice of forum clauses and is one that will need to be addressedin any Hague Conference Choice of Court convention. 167165. Dow Jones & Co., Inc. v. Gutnick, (2002) 194 A.L.R. 433 (Austl.) (affirminglower court=s decision that the statements the plaintiff (Gutnick)complained of were published in Victoria when downloaded by the Dow Jonessubscribers, therefore the defamation occurred in Victoria and Victoria wasnot an inappropriate forum).166. The effects doctrine has been used recently in domestic internetdefamation cases, especially by the Fourth Circuit. See, e.g., Young v. NewHaven Advocate, 315 F.3d 256, 263 (4th Cir. 2002) (finding that to assert jurisdictionfor a web site posting, the plaintiff must show an intent to targetand focus on a certain group of readers).167. See discussion infra Part VII.B. A convention on choice of court candefine its own standards of substantive validity, or it can rely on a choice oflaw rule for determining validity which in turn may incorporate national law.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 41One recent case illustrates the potential for parallel proceedingswhen different courts disagree about the interpretation orscope of an arbitration clause. The litigation on both sides of theAtlantic in the Armco cases 168 snaked its way through the UnitedStates and English courts to a decision by the House of Lords. 169The final English appellate opinion illustrates the statesmanlikeuse of comity to defuse the escalating proceedings, while providingsome protection for the English defendant in the New York forum.The Armco cases arise out of a management buy-out headedby Mr. Donohue and Mr. Atkins of a group of English insurancecompanies (BNIG) owned by Armco and some of its subsidiaries.The negotiators for Armco in the buy-out were Mr. Rossi and Mr.Stinson. Armco alleged that Donohue, Rossi, Stinson, and laterAtkins, “the group of four,” conspired to defraud Armco and itssubsidiaries of millions of dollars through a complex scheme thatinvolved buying the insurance companies through Wingfield, aNew Jersey corporation that allegedly was secretly owned byRossi and Stinson, then Armco executives. Armco claimed that aspart of the fraudulent scheme, the group persuaded Armco to injectextra money into the failing English insurance companies andto sign contracts in connection with the sale that contained Englishexclusive jurisdiction clauses. Armco brought suit against thegroup of four and additional corporate conspirators 170 in theSouthern District of New York to recover funds from the fraudulentscheme, alleging common law fraud, conversion, breach of fiduciaryduty and RICO violations. Several other suits were filedagainst Donohue and others in Hong Kong, New Jersey and Singapore.Some of the defendants filed motions to dismiss for lack of168. The U.S. proceeding is Armco, Inc. v. North Atl. Ins. Co. Ltd., 68 F.Supp. 2d 330 (S.D.N.Y 1999). The English proceedings are under the nameDonohue v. Armco Inc. The lower court opinion is reported at [1999] 2 Lloyd=sRep. 649 (Q.B. 1999) (Aikens, J., dismissing application for an antisuit injunction).The Court of Appeals decision is reported at [2000] 1 Lloyd=s Rep.579 (C.A. 2000) (granting the antisuit injunction).169. The House of Lords decision is reported at [2001] U.K.H.L. 64 (H.L.2001), [2002] 1 Lloyd’s Rep. 425.170. The cases in both the United States and England involved multipleparties, both individual and corporate, some of whom were not made partiesto the exclusive jurisdiction clauses or contracts and some of whom werenamed in one claim or one forum and not another. This summary attempts tosimplify the complex facts and focus on the underlying suit/antisuit injunction.See Armco, 68 F. Supp. 2d at 340.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM42 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1personal jurisdiction, improper venue, and forum non conveniens.The defendants specifically challenged the filing of suit in breachof the English exclusive jurisdiction clauses contained in thetransfer and sale agreements. 171In the subsequent English proceedings, Donohue sought toenjoin the U.S. litigation as vexatious and oppressive as evidencedby its being in breach of the exclusive jurisdiction clauses. Rossi,Stinson, and several of the related corporate entities created forthe sale and purchase, including Wingfield, applied to join as “coclaimants”in the English antisuit proceedings. They are referredto by the English appellate courts as “PCCs.” The English trialcourt found that the exclusive jurisdiction clauses, although valid,only bound some of the parties and that the claims in the NewYork lawsuit were based on a pre-existing conspiracy, and thereforedid not arise out of the contracts and were largely outside theexclusive jurisdiction clauses. 172 The court also found that the proceedingsagainst Donohue in New York were neither vexatious noroppressive, England was not the “natural forum” for the litigationand the other co-claimants also were not entitled to an injunction.173 The English parties, defendants in the United States, appealedthe denial of the antisuit injunction in England. 174In the interim, the District Judge in the New York federalcourt proceeding denied the motions to dismiss based on personaljurisdiction, improper venue, and forum non conveniens. The courtagreed with the plaintiffs that exclusive jurisdiction clauses didnot cover the pending litigation and were unenforceable because171. The only parties to the three agreements at issue on the Armco sidewere AFSIL, AFSEL, and AFSC, with Armco Inc. succeeding to the rightsand obligations of AFSEL (two other members of the Armco group, APL andNNIC, were not parties). Similarly, on the Donohue side, CISHL, Wingfield,Mr. Donohue, and Mr. Atkins were the only parties to the agreements, meaningthat Mr. Rossi and Mr. Stinson and their companies were not parties tothe agreements or to the exclusive jurisdiction clauses. Donohue, [2001]U.K.H.L. 64 at 7.172. Donohue, [1999] 2 Lloyd=s Rep. at 664-65.173. Id. at 664.174. The courts on both sides of the Atlantic also spent significant timediscussing the interrelationship of both the Armco conglomerate of companiesand the individual and corporate defendants, particularly in connection withwhich parties were signatories to contracts and which were bound by the exclusivejurisdiction clauses. This analysis was also relevant in proceedings inboth New York and London to the question of duplication of litigation.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 43induced by fraud. In denying the forum non conveniens motion,the district court relied specifically on the intervening Englishtrial court opinion to demonstrate that the United States had agreater interest in the action. 175The next stage for the proceedings was back in England beforethe Court of Appeal, which reversed the lower trial court andissued an antisuit injunction against the Armco entities from proceedingin New York. 176 Besides Donohue individually there werethe PCCs (two individuals and four corporations). The PCCs,hanging on Donohue=s coattails, were also ultimately granted aninjunction. Even though all but one were not parties to any exclusivejurisdiction clause, they were considered necessary andproper parties for the English proceedings. The Court of Appealinjunction included these parties “to give effect to the exclusive jurisdictionclauses and to ensure trial in England of the issues arisingout of or connected with the management buy-out between allthe parties involved.” 177 The court determined that the New Yorkproceedings were within the scope of the exclusive jurisdictionclause. Contrary to the lower court=s approach of looking at themost appropriate place for the litigation, when there is an exclusivejurisdiction clause there has to be a strong reason not to grantan antisuit injunction since it is considered “prima facie oppressiveand vexatious to litigate elsewhere than in the agreed forum.”178The final act of this litigation was in the House of Lords whichreversed the Court of Appeal. The Lords first reviewed the decisionof the Court of Appeal to include in the antisuit injunction notonly Mr. Donohue, but the PCCs who had not been party to theexclusive jurisdiction clauses. The Lords clarified the principlescontrolling the grant of an injunction as established in other caselaw that an injunction is only available when justice requires, andwill only restrain vexatious or oppressive foreign litigation. In ad-175. Armco, 68 F. Supp. 2d at 341 (“Although trial in England would be anadequate alternative forum, the court concludes that the relevant private andpublic factors indicate that litigating this case in the United States is completelyappropriate.”).176. Donohue v. Armco Inc., [2000] 1 Lloyd’s Rep. 579, 594 (C.A. 2000).177. Donohue v. Armco Inc., [2001] U.K.H.L. 64, 15 (H.L. 2001), [2002] 1Lloyd’s Rep. 425, 430.178. Donohue, [2000] 1 Lloyd’s Rep. at 589.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM44 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1dition, the foreign forum must not be the natural home for the litigation.The court also must look to see what injustices there mightbe to both parties, including whether the defendant (here theplaintiff in the foreign action) will be deprived of advantages inthe foreign forum to which he is entitled. Applying these principles,the House of Lords found that England was not the naturalforum for the proceedings, and as to these defendants, the NewYork litigation was neither vexatious nor oppressive. 179The House of Lords then addressed the grant of the antisuitinjunction as to Donohue alone and the case law controlling thediscretion to enforce exclusive jurisdiction clauses either throughstaying or restraining:[W]here parties have bound themselves by an exclusivejurisdiction clause effect should ordinarily be given tothat obligation in the absence of strong reasons for departingfrom it. Whether a party can show strong reasons,sufficient to displace the other party=s prima facieentitlement to enforce the contractual bargain, will dependon all the facts and circumstances of the particularcase. 180After reviewing numerous cases that involved multiple partiesand claims that were outside exclusive jurisdiction clauses, coupledwith the emphasis on avoiding inconsistent judgments, theHouse of Lords turned to specific facts. Donohue had the right asto the Armco entities with whom he had exclusive jurisdictionclauses to expect not to be sued in New York, and even more critically,not to be subject to RICO claims that would be possible inNew York but not in England. The other PCCs, however, were fairgame for the Armco entities to pursue “any claim they choose inany convenient forum where they can found jurisdiction,” includingNew York. 181 Similarly, some of the Armco entities not boundby the exclusive jurisdiction clauses could pursue Donohue where179. Donohue, [2001] U.K.H.L. 64 at 20. In addition, the House of Lordsconsidered “another more technical objection” that of jurisdiction, and decidesthat “[i]t would be wrong in principle to allow these PCCs to use Mr.Donohue=s action as a Trojan horse in which to enter the proceedings whenthey could have shown no possible ground for doing so in their own right.” Id.at 21.180. Id. at 24.181. Id.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 45he could be found, and the Armco entities bound could pursue himon claims outside the exclusive jurisdiction clauses – all of whichappear to have found jurisdiction in New York and could proceedeven if an antisuit injunction were issued.The House of Lords denied the injunction but added a conditionthat Mr. Donohue may not be sued for RICO claims or “multipleor punitive damages,” and that Mr. Donohue could claim thatthe sale and purchase agreement was governed by English law: 182I am driven to conclude that great weight should be givento it . . . . [T]he interests of justice are best served by thesubmission of the whole dispute to a single tribunalwhich is best fitted to make a reliable, comprehensivejudgment on all matters in issue. A procedure whichpermitted the possibility of different conclusions by differenttribunals, perhaps made on different evidence,would in my view run directly counter to the interests ofjustice. 183Thus, the House of Lords allows the goal of “submission of thewhole dispute to a single tribunal” for “a comprehensive judgment”in the interests of justice to override enforcement of an exclusivejurisdiction clause, at least when there are multipleparties and claims that are appropriately litigated in a foreign forum.184 The result encourages courts to avoid granting antisuit injunctionswhich will simply result in encouraging conflictingjudgments, but also counsels courts to attempt to shape somecompromise where possible to protect the contractual expectationsof parties.In contrast to the balanced approach of the House of Lords inthe Armco litigation, the Seventh Circuit in AAR International,Inc. v. Vacances Heliades S.A. 185 again demonstrated its resistanceto “comity” by reversing the lower court=s abstention order and enforcinga “permissive forum selection clause.” 186 The District Court182. Id. at 36. The actual undertaking includes two other entities, Wingfieldand CISHL. Id. at 31-32.183. Id. at 34.184. Id.185. 250 F.3d 510 (7th Cir. 2001).186. Id. at 525-27. See, e.g., Allendale Mut. Ins. Co. v. Bull Data Sys., 10F.3d 425 (7th Cir. 1993); see discussion supra Part III.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM46 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1had granted a motion to abstain in favor of two, possibly three,proceedings in Greece concerning the lease of an airplane anddismissed the U.S. reverse image case. 187 Following the ColoradoRiver 188 and Moses Cone 189 domestic precedents of abstention “forwise judicial administration,” the lower court applied a “laundrylist of factors,” 190 but put heavy weight on the repetitive nature ofthe actions and the satisfactory alternative forum in Greece. 191The Seventh Circuit unfortunately turned first to domesticprecedent, even though the cases involved foreign litigation aswell. 192 The court disagreed with the lower court=s determinationthat the U.S. and Greek actions were parallel and that the Greekactions would likely dispose of the claims in the U.S. action. Byreading the requirement of Moses Cone to mean it would be a “seriousabuse of discretion” if there is any doubt as to the actions beingparallel, the Seventh Circuit found a basis to reverse. 193 Theappellate court decided that the lower court improperly balancedthe abstention factors. 194 The Seventh Circuit found that the lowercourt put “undue weight on the inconvenience of the federal forumfor the [Greek] appellees, and did not adequately consider the in-187. AAR Int’l, Inc. v. Vacances Heliades S.A., 100 F. Supp. 2d 875, 878(N.D. Ill. 2000).188. Colorado River Water Conservation Dist. v. United States, 424 U.S.800 (1976).189. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1(1983).190. AAR Int’l, Inc., 100 F. Supp. 2d at 878. The District Court stated:The Seventh Circuit directs me to consider a laundry list of factors:(1) the identity of the court that first assumed jurisdiction over theproperty; (2) the relative inconvenience of the federal forum; (3) theneed to avoid piecemeal litigation; (4) the order in which the respectiveproceedings were filed; (5) whether federal or foreign law providesthe rule of decision; (6) whether the foreign action protects thefederal plaintiff=s rights; (7) the relative progress of the federal andforeign proceedings; and (8) the vexatious or contrived nature of thefederal claim.Id. (citing Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d896, 898-99 (7th Cir. 1999). For a discussion of the lower court opinion in Finova,see Teitz, Treading Carefully, supra note 72, at 404-05.191. AAR Int’l, Inc., 100 F. Supp. 2d at 878 (“[T]he most economical use ofmy time is to let the Greek courts handle it.”).192. Id. at 517-18.193. Id. at 520.194. Id. at 522-23.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 47convenience of the Greek forum for AAR.” 195 The Circuit furtherfound that the district court did not weigh properly the nonexclusiveIllinois jurisdiction clause and the irrevocable waiver ofobjection to Illinois as an inconvenient forum contained in thelease, and thus there was a basis for reversal even under theabuse of discretion standard. 196 This clause then is a heavy weightin the Seventh Circuit=s eyes in refusing to abstain in the face ofparallel litigation, such that AAR ultimately appears to receivefrom this non-exclusive clause the benefits that would otherwisebe accorded only to an exclusive jurisdiction clause.Cases like Armco and AAR that result from differences in theinterpretation and enforcement of forum selection clauses serve tohighlight the need for the multilateral choice of court conventioncurrently being negotiated in The Hague. 197 The convention wouldenforce forum selection clauses much the way the New York Convention198 assures that agreements to arbitrate are enforceable.Even when parties attempt to pre-ordain the location of later disputesin transnational transactions, the inability to enforce thatagreement without litigation nullifies the value of a choice of forumclause and removes the predictability and allocation of costsfor which the parties bargained. A convention that enforces exclusivechoice of court clauses as well as the resulting judgments willgo a long way toward providing some certainty and encouragingconsensual choice of forum in global business.V. EUROPEAN APPROACHES TO INTEGRATING COMMON-LAW THEORIESOF PARALLEL PROCEEDINGSDuring the last several years, there have been several casesin Europe that have involved issues of parallel proceedings. Fourrecent cases before the European Court of Justice reflect theproblems arising from increased judicial cooperation under theBrussels Regulation. Specifically, the difficulty arises fromattempts to integrate the common-law doctrines of antisuit195. Id. at 522.196. Id. at 523.197. See discussion infra Part VII.198. New York Convention on the Recognition and Enforcement of ForeignArbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997 (codified at9 U.S.C. §§ 201, 208 (2004)) [hereinafter New York Convention].

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM48 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1injunctions and forum non conveniens into European law. 199 Boththe Brussels Regulation and its predecessor Brussels Conventioncontain lis pendens provisions which come into effect when thefirst court of a member state is seised; any other member state=scourts must stay proceedings “until such time as the jurisdictionof the court first seised is established.” 200This strict “first in time” approach under the Brussels Conventionwas challenged and upheld in a case decided in 2003 bythe European Court of Justice when one of the parties filed suitcontrary to a choice of court clause and in a country where the legalproceedings were exceptionally slow. In Erich Gasser GmbH v.MISAT Srl, 201 an Austrian clothing company sold clothes to anItalian company, with invoices having an exclusive choice of jurisdictionclause for an Austrian court. Following a dispute betweenthe parties, the Italian buyer brought suit in Rome, seeking a declarationthat the contract had been terminated and also seekingdamages. The seller subsequently brought suit in Austria underthe forum selection clause for payment on the outstanding invoices.The Austrian court, on its own motion, stayed proceedingsunder the then Brussels Convention Article 21. 202 Reference wasmade to the European Court of Justice (ECJ) for a ruling whetherthe Austrian court had to stay all proceedings until the court firstseised had declared it had no jurisdiction under Article 21 becauseof the exclusive Austrian choice of court clause. 203 Gasser and theU.K. government argued that choice of court clauses should be“encouraged” since they “contribute to legal certainty in commercialrelationships.” 204The reasons given in part by the ECJ for rejecting these argumentsfocus on the need to avoid the possibility of irreconcilablejudgments at all costs between the courts of member states and199. For a discussion of antisuit injunctions and the Brussels Convention/Regulation,see Ambrose, supra note 13.200. Brussels Regulation, supra note 12, at art. 27.201. Case C-116/02, [2003] ECR ____ (9 Dec. 2003).202. Id. at 15; see also Brussels Convention, supra note 12, at art. 21.203. Eric Gasser, [2003] ECR ____ at 19.204. Id. at 31. The U.K. had proposed to avoid the risk of irreconcilablejudgments the court first seised “whose jurisdiction is contested in reliance onan agreement conferring jurisdiction must stay proceedings until the courtwhich is designated by that agreement, and is the court second seised, hasgiven a decision on its own jurisdiction.” Id. at 33.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 49the “legal certainty sought by the Convention.” 205 The ECJ also rejectedthe arguments of the U.K. government about the potentialfor abuse through filing in the wrong forum to delay the proceedings.Indeed in this case, proceedings in the derogated court, Italy,take “excessively long.” 206 Gasser argued that in such a case, thecourts of the State second seised should be entitled to rule on thequestion of jurisdiction rather than wait for the nonchosen butfirst seised court to rule that it has no jurisdiction. The ECJ insistedon a very literal reading of Article 21:68. It is not compatible with the philosophy and the objectivesof the Brussels Convention for national courts to beunder an obligation to respect rules on lis pendens only ifthey consider that the court first seised will give judgmentwithin a reasonable period.. . . .72. Second, it must be borne in mind that the BrusselsConvention is necessarily based on the trust which theContracting States accord to each other=s legal systemsand judicial institutions. . . It is also common ground thatthe Convention thereby seeks to ensure legal certainty byallowing individuals to foresee with sufficient certaintywhich court will have jurisdiction. 207Gasser suggests the potential for abuse by deliberately stallinglitigation in violation of a choice of court clause. Contrary tothe ECJ=s laudatory comments about certainty, Gasser has the potentialto nullify the value of an exclusive choice of court clause,making certainty the captive of procedural maneuvers. In the end,the fastest runner to the courthouse may triumph over partyautonomy and contractual choice.The ECJ also considered the implications for European law ofparallel proceedings in two member states when one state is acommon-law jurisdiction. This time the question in Turner v.Grovit 208 concerned the use of an antisuit injunction to stop pro-205. Id. at 51.206. Id. at 33.207. Id. at 68-72.208. [2002] 1 W.L.R. 107 (H.L. 2001), preliminary reference made, Case C-159/02, [2003] ECR ____, [2004] 1 Lloyd’s Rep. 216, judgment of the full court,[2004] ECR 00 (27 Apr. 2004), [2004] 2 Lloyd’s Rep. 169; see Hartley, How to

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM50 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1ceedings filed or threatened to be filed in another member statethat constituted an abuse of process, when the defendants werealleged to be acting “in bad faith with the intent and purpose offrustrating or obstructing proceedings properly before the Englishcourts.” 209 The case highlights fundamental differences in thetreatment of parallel proceedings in certain circumstances incommon-law countries and civil law countries. Turner, a Britishnational, went to work in Spain. Following an employment dispute,he asked to terminate the contract and returned to Londonwhere he brought an action for a form of unfair dismissal in theEmployment Tribunal, London. Meanwhile, the employer had institutedproceedings in Spain seeking damages against Turner.Turner then asked the English High Court to issue an antisuit injunctionagainst the defendants from continuing the proceedingsin Spain. The English court issued the injunction for a short periodof time but refused to renew the order. 210 Turner then soughtand received an injunction from the English Court of Appealwhich viewed the proceedings in Spain as being for the sole purposeof intimidating Turner, and therefore an abuse of process,warranting injunctive relief. 211 The House of Lords referred thematter to the ECJ in December 2001 to determine if the antisuitinjunction was inconsistent with the Brussels Convention. 212 Thedefendants, as well as the German and Italian governments,urged that the antisuit injunction was irreconcilable with theBrussels Convention.The Advocate General=s preliminary opinion 213 determinedthat the Convention “must be interpreted as precluding the judicialauthorities of a Contracting State from issuing orders to litigantsrestraining them from commencing or continuingproceedings before judicial authorities of other ContractingStates.” 214 In reaching this result that reinforced the lis pendensprovisions in the Brussels Convention in favor of the court firstAbuse the Law, supra note 13.209. Id. at 18.210. Id. at 11.211. Id. at 12.212. Id. at 18.213. The Advocate General issued an opinion on 20 November 2003. CaseC-159/02, Turner v. Grovit, [2003] ECR ____ (20 Nov. 2003), [2004] 1 Lloyd’sRep. 216.214. Id. at 38.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 51seised, the Advocate General made reference to case law in othercommon-law jurisdictions, including the United States, and suggestedthat the Convention=s structure did not allow for antisuitinjunctions:30. The arguments against compatibility with the Conventionput forward in the course of these preliminaryproceedings stem from the idea that one of the pillars ofthe international instrument is the reciprocal trust establishedbetween the various national legal systems, uponwhich the English restraining orders would seem to castdoubt.31. That view seems to me to be decisive. [] European judicialcooperation, in which the Convention represents animportant landmark, is imbued with the concept of mutualtrust, which presupposes that each State recognizesthe capacity of the other legal systems to contribute independently,but harmoniously, to the stated objectives ofintegration. 215The ECJ, following this approach in its final opinion issued onApril 27, 2004, left no room for national law to continue, at leastwhere the proceedings are in two member states. 216 This result ofa strong lis pendens when both parties are nationals of the community,along with Gasser, increases the pressure to be the first tofile. The decision also encourages vexations filings to wrest jurisdictionaway from the otherwise natural forum.Owusu v. Jackson 217 raises the next question: What aboutwhen parties are from third countries, not members of the EuropeanUnion? Is forum non conveniens still viable under the Brusselsregime? Owusu also introduces the issue of multiple partiessince only one of the defendants is from a member state and theother five are domiciled in Jamaica. Mr. Owusu, an English domiciliary,was injured at the beach while on holiday in Jamaica. Hebrought suit in tort in England against multiple parties, all but215. Id. at 30-31.216. Turner v. Grovit, [2004] ECR 00 (27 Apr. 2004), [2004] 2 Lloyd’s Rep.169 (Judgment of the Full Court).217. [2002] I.L.Pr. 45 (C.A. 2002), preliminary reference made, Case C-281/02, Owusu v. Jackson, [2003] ECR ____.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM52 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1one of whom were Jamaican limited liability companies, for failingto warn of dangers of a submerged sand bank. He also broughtsuit for breach of contract against the English company fromwhom he rented the villa. The English lower court judge foundthat Jamaica was the appropriate forum for the proceedings forseveral reasons and, but for the Brussels Convention precludingstaying the action against the one English defendant he wouldhave done so. 218 Since he could not stay the suit against the Englishdefendant he would not want to stay as to the other defendantsbecause then two different courts, one in England and onein Jamaica, would try the same factual issues and might reachconflicting results and thus conflicting judgments. To avoid theparallel litigation, he refused to stay any of the proceedings inLondon.The decision was appealed to the Court of Appeal which subsequentlymade a reference to the ECJ based on the mandatoryrequirements of Article 2 of the Brussels Convention requiringsuit in the domicile of a defendant from a member state. 219 This iscontrary to the national law which allowed the exercise of discretionarypower in the form of forum non conveniens when the partieswere from non-contracting states and the potential parallellitigation did not involve another member state. The Englishcourt, in referring the matter to the ECJ, recognized that the issueof forum non conveniens and the relationship to mandatory provisionsof the Brussels Convention/Regulation as applied to defendantsfrom nonmember states inherently raises the potential ofparallel proceedings and the issue of what response is permissible,at least when courts of third countries are involved. 220 The ECJ218. Id. at 20.219. Case C-281/02, Owusu v. Jackson, [2003] ECR ____.220. Id. at 59–63. The Court of Appeal noted:45. The present case is concerned with the doctrine of forum conveniens,when applied as between a member state and a non-memberstate. But it might just as easily have been concerned with the doctrineof lis alibi pendens, or “prorogation of jurisdiction,” . . . or anyof the other situations for which the Brussels Convention providesdiscretionary or mandatory exceptions. . . . If article 2 is mandatory,then a defendant domiciled in England must be sued in England inall such cases even if the Convention would allow or require the actionto be brought in the courts of another member state if a domiciliaryof another member state was involved.Id. at 45 (citation omitted).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 53has yet to act in Owusu but its decision will no doubt affect parallelproceedings issues – either indirectly through forum non conveniensdismissals/stays, or directly through lis pendens – forthose actions that involve a member state that, under its nationallaw, allows discretionary dismissals or antisuit injunctions, suchas the U.K., and a third country.European law on parallel proceedings is now having a directimpact on U.S. corporations who have foreign subsidiaries and dobusiness abroad. In American Motorist Insurance Co. (AMICO) v.Cellstar Corp. 221 the English court=s discretion to dismiss was limitedby Convention/Regulation since one of the two defendants wasa U.K. subsidiary of a U.S.-based company. Cellstar, a U.S. corporationwith its principal place of business in Texas, obtained aninsurance policy from AMICO, an Illinois insurance company doingbusiness in Texas. The insurance policy was to cover Cellstar=sglobal business of providing wireless communication equipmentwhich it carried out through subsidiaries. The insurance policy for“global transportation,” issued by AMICO=s Texas office, was tocover Cellstar and its subsidiaries worldwide against losses of cellphones in transit in connection with sales operations in seventeencountries. The litigation related to a claim for about one millionpounds for a loss in March 2000 for shipments made by Cellstar=sU.K. subsidiary (CUK) to other locations in Europe. 222 AfterAMICO denied coverage, demand was made by CUK and Cellstarin the United States. In response, AMICO filed suit in London aweek later for a negative declaration against CUK and Cellstar.Cellstar subsequently filed suit in Dallas against AMICO forwrongful failure to settle the claim, eventually joining other incidentsof loss as well. AMICO did not seek to stay the Texas litigation,which would probably have not been granted, but eventuallyjoined CUK as a third party in the Texas suit. 223By suing CUK, the U.K. subsidiary, in England, AMICO wasable to get jurisdiction under the Brussels Convention/Regulationfor an insurance policy issued in Texas by a Texas insurer to aTexas corporation to cover its foreign subsidiaries. In the U.K. liti-221. American Motorists Ins. Co v. Cellstar Corp., [2003] I.L.Pr. 22 (C.A.2003).222. Id. at 2.223. Id.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM54 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1litigation seeking a negative declaration of nonliability, AMICOtried to have Cellstar joined as a necessary party and claimed thatthe worldwide insurance policy was governed by English law. Thelower court in the U.K., after determining that English law wouldnot govern the insurance policy, found that Texas was thereforethe appropriate forum for the resolution of the dispute and stayedthe action against CUK. 224 AMICO argued on appeal that thelower court was without authority under the Brussels Conventionto exercise discretion and stay the action against CUK. Thus thecourt was faced with an issue similar to Owusu, of whether, inlight of the mandatory terms of the Brussels Convention/Regulationthat establish where an English-domiciled corporationmay be sued, an action in a member state can be stayed infavor of an action in a third country which is the “forum conveniens.”The appellate court found that the entire insurance policywas subject to Texas law, and that at a minimum Cellstar shouldnot be a party to suit in London, but that suit should be inTexas. 225 The court recommended a reference to the ECJ of the issueof staying the action against CUK in favor of proceedings inTexas, 226 again raising the issue of whether the discretionary doctrineof staying or dismissing parallel litigation that is vexatiousor brought in an inconvenient forum can co-exist under the BrusselsRegulation when the alternative forum is a nonmember state.Although the case is a continent away, the implications of theECJ cases are significant for U.S. companies with foreign subsidiariesin Europe who may find themselves litigating in several forumsand no longer able to get out of the litigation in Europe.When one combines the ability to seek negative declaratory actionswith the lis pendens and the loss of the discretionary abilityto dismiss in favor of foreign litigation in the appropriate forumunder the Regulation, one finds the result is multiple proceedings.Although the insurance contract in AMICO was to cover losses inEurope and of foreign subsidiaries, Cellstar would not necessarilyanticipate that an insurance policy bought in Texas and from aTexas insurer would force it or its subsidiary to be sued in theU.K. if it subsequently had a disputed claim for coverage. The ul-224. Id. at 4.225. Id. at 48, 50-51.226. Id. at 49, 51.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 55timate result is the increased likelihood of having to litigate ontwo continents if a corporation has a European subsidiary and issued. This at least suggests the possibility of vexatious litigationwhenever a U.S. company is sued in Europe by joining a Europeansubsidiary or necessary party – much the way a plaintiff in a U.S.court can avoid removal to federal court in a nonfederal questioncase by joining a nondiverse party. 227 Cases that an English courtmight previously have stayed, now will have to continue if theECJ construes the Brussels Regulation narrowly, in keeping withthe Gasser and Turner decisions, to foreclose the operation of nationallaw when the other litigation is pending in the court of athird country.VI. ENFORCING FOREIGN JUDGMENTS IN THE U.S.Enforcement and recognition of judgments, although chronologicallythe last concern in litigation, is one of the first considerationsin initiating a lawsuit. Indeed the ability to enforce ajudgment and the potential for prejudgment relief may ultimatelycontrol the initial decisions of whether and where to sue. As discussedearlier, there is no constitutional provision requiring recognitionof foreign judgments, 228 nor any multilateral agreementto which the United States is a party. Rather, the state or federalcourt is free to accord “comity” to the foreign judgment, a conceptfrequently cited but rarely explained in any way other than by227. Perhaps the best known example of this is World-Wide VolkswagenCorp. v. Woodson, 444 U.S. 286 (1980), where the anecdotal basis for joiningSeaway and World-Wide was to keep the defendants from removing to federalcourt and out of the more favorable jury pool in the state court.228. See supra note 15. There is no requirement under the Constitutionfor giving full faith and credit to a foreign judgment. Nor does the Full Faithand Credit Statute control foreign judgments. See U. S. CONST. art. IV, § 4; 28U.S.C. § 1738 (2004).The United States does have some Treaties of Friendship with individualcountries which elevate judgments from the particular country to thestatus of a sister state judgment. See, e.g., Treaty of Friendship, Commerce,and Navigation Between the United States of America and The Republic ofKorea, Nov. 7, 1957, U.S.–Korea, 8 U.S.T. 2217; Treaty of Friendship, Commerceand Navigation Treaty Between the United States of America and theKingdom of Greece, Aug. 3, 1957, U.S.–Greece, 5 U.S.T., 1829. These treaties,under the Supremacy Clause, preempt contrary state law. See Choi v. Kim,50 F.3d 244 (3d Cir. 1995) (elevating Korean judgment to status of sisterstate); Vagenas v. Continental Gin Co., 988 F.2d 104, 106 (11th Cir. 1993)(elevating Greek judgment to status of sister state).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM56 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1quoting the major Supreme Court opinion on the recognition of aforeign judgment, Hilton v. Guyot, 229 a one hundred year old caseinvolving the recognition of a French judgment. In Hilton, the SupremeCourt established the basic contours of the common-lawcomity approach to recognition of foreign judgments. 230 In a five tofour decision, the Supreme Court ultimately refused recognition tothe French judgment because of the lack of reciprocity in thatFrance would not enforce a similar U.S. judgment. Hilton, bynegative implication, lists the potential defenses to recognition: (1)lack of a full or fair trial; (2) lack of subject matter jurisdiction; (3)lack of personal jurisdiction; (4) trial under a system lacking impartialityor due process; (5) prejudice in the legal system or court;229. 159 U.S. 113 (1895).230. Id. at 163-64. The Court announced:No law has any effect, of its own force, beyond the limits of thesovereignty from which its authority is derived. The extent to whichthe law of one nation, as put in force within its territory, whether byexecutive order, by legislative act, or by judicial decree, shall be allowedto operate within the dominion of another nation, dependsupon what our greatest jurists have been content to call “the comityof nations.” Although the phrase has been often criticized, no satisfactorysubstitute has been suggested.“Comity,” in the legal sense, is neither a matter of absolute obligation. . . nor of mere courtesy and good will . . . . But it is the recognitionwhich one nation allows within its territory to thelegislative, executive or judicial acts of another nation, having dueregard both to international duty and convenience, and to the rightsof its own citizens or of other persons who are under the protection ofits laws.. . . .When an action is brought in a court of this country, by a citizenof a foreign country against one of our own citizens, to recover a sumof money adjudged by a court of that country to be due from the defendantto the plaintiff, and the foreign judgment appears to havebeen rendered by a competent court, having jurisdiction of the causeand of the parties, and upon due allegations and proofs, and opportunityto defend against them, and its proceedings are according tothe course of a civilized jurisprudence, and are stated in a clear andformal record, the judgment is prima facie evidence, at least, of thetruth of the matter adjudged; and it should be held conclusive uponthe merits tried in a foreign court, unless some special ground isshown for impeaching the judgment, as by showing that it was affectedby fraud or prejudice, or that, by the principles of internationallaw, and by the comity of our own country, it should not begiven full credit and effect.Id. at 163-64, 205-06; see id. at 202-03.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 57and (6) fraud in procuring the judgment. The only significant deviationfrom Hilton is the subsequent deletion of a requirement forreciprocity; indeed, the majority of those cases relying on Hiltonfail to discuss any reciprocity requirement. 231The parameters for granting comity to a foreign judgment setout in Hilton, with the exception of the reciprocity requirement,continue to dominate our thinking on treatment of foreign judgmentsin both federal and state courts. Even though the recognitionand enforcement of judgments within the United States islargely a matter determined by state law, recognition and enforcementis subject to federal constitutional standards that mayserve to invalidate foreign judgments. 232 A foreign judgment maynot be recognized or enforced if it violates due process.Today, there are three basic approaches followed by federaland state courts, all of which to some extent derive from the tenetsestablished by Hilton. First, some courts rely strictly on acommon-law approach, derived from Hilton, but usually withoutthe reciprocity requirement. Others use a statutory approach,applying the Uniform Foreign Money-Judgments RecognitionAct. 233 This Uniform Act, first adopted by the National Conferenceof Commissioners on Uniform State Laws in 1962, has been enactedin some version by more than half the states. 234 Although its231. See, e.g., de la Mata v. Am. Life Ins.. Co., 771 F. Supp. 1375, 1382-83(D. Del. 1991), aff’d without opinion, 961 F.2d 208 (3d Cir. 1992); PilkingtonBros. v. AFG Indus., Inc., 581 F. Supp. 1039, 1043-44 (D. Del. 1984). Both ofthese cases are federal courts construing state law.232. See ENFORCING FOREIGN JUDGMENTS IN THE UNITED STATES ANDUNITED STATES JUDGMENTS ABROAD 1-20 (Ronald A. Brand ed., 1992); RobertB. von Mehren, Enforcement of Foreign Judgments in the United States, 17VA. J. INT=L LAW 401, 401-403, 408-410 (1977); Robert E. Lutz, Enforcement ofForeign Judgments, Part I: A Selected Bibliography on the United States’ Enforcementof Judgments Rendered Abroad, 27 INT’L LAW. 471 (1993); Robert E.Lutz, Enforcement of Foreign Judgments, Part II: A Selected Bibliography ofEnforcement of United States Judgments in Foreign Countries, 27 INT’L LAW.1029 (1993).233. UFMJRA, supra note 17.234. The following states have enacted the UFMJRA: Alaska, California,Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois,Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri,Montana, New Jersey, New Mexico, New York, North Carolina, North Dakota,Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, and Washington.The District of Columbia and the Virgin Islands have also adopted it.Uniform Law Commissioners, UFMJRA, at http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-ufmjra.asp (last visited Dec. 12,

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM58 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1direct application is to foreign judgments for money only, statesthat have adopted it often look to it for guidance in treating nonmoneyforeign judgments. 235 The third approach is the Restatement(Third) of Foreign Relations Law of the United States (Restatement(Third)) which is similar to the earlier Uniform Act, butcovers a broader category of judgments including judgments “establishingor confirming the status of a person, or determining interestsin property.” 236 Both the Restatement (Third) and theUniform Act provide for a foreign judgment meeting certain requirementsto be treated like a sister-state judgment entitled tofull faith and credit. 237 The absence of a uniform national ap-2004).235. See, e.g., Milhoux v. Linder, 902 P.2d 856 (Colo. Ct. App. 1995).236. RESTATEMENT, supra note 25, at § 481. The Restatement (Third) incorporatesmany of the Hilton defenses involving fairness, due process, andjurisdiction, and adds defenses such as conflicting judgments and those contraryto an express forum selection agreement, but not a reciprocity requirement.Id. at § 482. Of these defenses, there are only two mandatory groundsfor nonrecognition: lack of personal jurisdiction and lack of due process in therendering jurisdiction. Id. The six discretionary grounds for nonrecognitioncomprise: (1) lack of subject-matter jurisdiction; (2) lack of notice; (3) fraud;(4) public policy of the United States or the forum state; (5) conflicting finaljudgments; and (6) a contrary contractual choice of court. Id. Comment h tosection 482 suggests that the contractual choice of court includes selection ofan arbitral tribunal. Id. § 482 cmt. h. For a comparison of the Restatement(Third) and the Uniform Act, see Ronald A. Brand, Enforcement of Foreign-Money Judgments in the United States: In Search of Uniformity and InternationalAcceptance, 67 NOTRE DAME L. REV. 253, 265-80 (1991).237. RESTATEMENT, supra note 25, at § 481 cmt. c; UFMJRA, supra note17, at § 3. The UFMJRA establishes a presumption of recognition and enforcement“in the same manner as the judgment of a sister state which is entitledto full faith and credit.” UFMJRA, supra note 17, at § 3. The defensesto recognition are similar to those of the Restatement (Third), with the burdenof proof being placed on the party attempting to avoid recognition. Id.The Act contains three grounds for mandatory recognition: lack of due process,personal jurisdiction, or subject matter jurisdiction. Id. at § 4 (a). Thegrounds for discretionary nonrecognition comprise: (1) lack of notice; (2) fraudin the judgment; (3) public policy; (4) conflicting judgments; (5) a contrary forumselection clause; and (6) a seriously inconvenient forum. Id. § 4 (b). Thislast category is not available under the Restatement (Third). RESTATEMENT,supra note 25, at § 482 (2). Of the adopting states, some have made allgrounds for nonrecognition mandatory. See, e.g., GA. CODE ANN. § 9-12-114(1993); MASS. GEN. LAWS. ANN. ch. 235, § 23A (West 2000). Moreover, eightadopting states have added a reciprocity requirement, which is discretionaryin seven of those states. See FLA. STAT. ANN. § 55.605 (West 1994 & Supp.2004) (discretionary); GA. CODE ANN. § 9-12-114 (1993) (mandatory); IDAHOCODE § 10-1404 (Michie 2004) (discretionary); ME. REV. STAT. ANN. tit 14, §

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 59proach to recognition and enforcement of judgments has hamperedparties in securing judgments that will be enforceable abroad. Inaddition, the lack of homogeneity makes it difficult to enforce foreignjudgments here, especially when the enforcing forum requiresreciprocity.VII. A DECADE OF NEGOTIATIONS AT THE HAGUEFor the last decade, the Hague Conference on PrivateInternational Law (Hague Conference) 238 has been laboring to createa multilateral convention on jurisdiction and the enforcementof judgments, which of necessity would address parallel litigationand the potential for inconsistent judgments. 239 The Hague Conference=sundertaking in 1992–93 to work on a general conventionon the recognition and enforcement for foreign judgments wasgenerated largely by the suggestion of the United States. 240 TheU.S., not a party to any bilateral or multilateral convention on theenforcement of foreign judgments, sought to find a means for privateparties to enforce foreign judgments outside of the UnitedStates without relitigation and to “level the playing field” for litigantsin the U.S. 241 The convention was designed to help the8505 (West 2003) (discretionary); MASS. GEN. LAWS. ANN. ch. 235, § 23A (West2000) (mandatory); N.C. GEN. STAT. § 1C-1804 (2003) (discretionary); OHIOREV. CODE ANN. § 2329.92 (West 2004) (discretionary); TEX. CIV. PRAC. &REM. CODE ANN. § 36.005 (Vernon 1997) (discretionary).238. The Hague Conference=s treaties on aspects of international litigationsuch as The Taking of Evidence Abroad, and the Service of DocumentsAbroad are well known, as it is pioneering work in the area of family law.See, e.g., Hague Conference, Convention of the Taking of Evidence Abroad inCivil or Commercial Matters, opened for signature, March 18, 1970, 23 U.S.T.2555, 847 U.N.T.S. 1231, available at http://www.hcch.net/e/conventions/index.html (last visited Dec. 12, 2004); Hague Conference, Convention on theService Abroad of Judicial and Extra-judicial Documents in Civil or CommercialMatters, opened for signature November 15, 1965, 20 U.S.T. 361, 658U.N.T.S. 163 (entered into force October 7, 1972), available athttp://www.hcch.net/e/conventions/index.html. (last visited Dec. 12, 2004).239. See supra note 8. See generally http://hcch.e-vision.nl/index_en.php.240. See BAUMGARTNER, supra note 8, at 1; von Mehren, Recognition andEnforcement, supra note 8, at 271; Peter Nygh, Arthur=s Baby: The HagueNegotiations for a World-Wide Judgments Convention, in LAW AND JUSTICE,supra note 8, at 151, 152.241. See generally Peter Trooboff, Ten (and Probably More) Difficulties inNegotiating a Worldwide Convention on International Jurisdiction and Enforcementof Judgments: Some Initial Lessons, in A GLOBAL LAW OFJURISDICTION AND JUDGMENTS: LESSONS FROM THE HAGUE 263 (John J. Barcelo

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM60 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1“middle class litigant,” 242 not just the large multinational corporationswho already could afford to resolve their transnational disputeswith arbitration. U.S. litigants often found it much harderto enforce U.S. judgments abroad than the reverse situation fornon-U.S. judgments seeking to be enforced in the United States.The initial suggestion of the U.S. was a mixed convention, the ideaof Arthur von Mehren, 243 where there would be three lists of jurisdictionalbases and the corresponding recognition. 244 The whitegrounds were acceptable bases under the convention, blackgrounds were unacceptable, and a gray list was where nationallaw would continue but recognition was not required under theconvention. 245 Many member states who had little trouble havingtheir judgments recognized and enforced in the United Statesviewed the negotiations as a way to cut-back on what they viewedas exorbitant aspects of U.S. personal jurisdiction, including generaldoing business jurisdiction, activity-based jurisdiction and tagjurisdiction.A. The Comprehensive Jurisdiction/Judgments DraftMuch has been written about the history of the negotiationsand the problems that plagued it, from an initial 1999 draft thatwas a copy of the Brussels Convention to the 2001 Interim Draftthat was a consensus version with multiple options and 201 footnotes.246 Many of the obstacles to the conclusion of a comprehensivejurisdiction and judgments convention to which the UnitedStates would be a party were not apparent at the beginning of the& Kevin M. Clermont eds., 2002).242. Peter Trooboff, a member of the U.S. delegation, frequently used thisexpression in advocating for a comprehensive judgments convention. See id.at 263.243. See generally von Mehren, Enforcing Judgments Abroad, supra note8.244. See id. at 283-84.245. See id.246. The 2001 draft text of the Convention on Jurisdiction and ForeignJudgments in Civil and Commercial Matters, an interim text, was drawn upat Part One of the Nineteenth Diplomatic Session, which was held from 6-22June 2001. Hague Conference, Summary of the Outcome of the Discussion inCommission II of the First Part of the Diplomatic Conference, June 6–22,2001 (prepared by the Permanent Bureau and the Co-reporters), available athttp://www.hcch.e-vision.nl/upload/wop/jdgm2001draft_e.pdf. (last visitedDec. 12, 2004).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 61decade when negotiations began but arose much later, includingthe rise of the internet and electronic commerce, the role of theconsumer and the increased integration of the European Community.247 The documents of the Hague Conference itself point outmany of the problems.Part of the problem at the Hague Conference is similar to thatcurrently occurring within the European Union with its attemptsto accommodate both civil and common-law traditions. But unlikethe European Union, the Hague Conference has no ECJ or itsequivalent to settle disputes or harmonize interpretations, nor isthere a common trade goal. While this lack of shared values orgoals among the Hague Conference members has made drafting atreaty difficult, one of the best examples of the blending of legaltraditions is the crafting of Articles 21 and 22, those dealing withlis pendens and forum non conveniens. The common law traditionallows discretion to decline jurisdiction, in contrast to the civil lawtradition. This same difficulty in melding the two systems, asmentioned earlier, is illustrated by the current litigation withinthe European Community involving whether the discretionarydoctrines of forum non conveniens and antisuit injunctions survivethe Brussels Regulation with its strict lis pendens and definedgrounds for jurisdiction. 248The Hague delegates managed to reach a compromise betweenthe civil and common law traditions, evidenced by the balanceachieved in the complementary articles concerning lis247. Following the June 2001 diplomatic session, there were informalmeetings among different member nations exploring ways to continue thework on the Judgments Convention. For a discussion of the state of the negotiations,see Hague Conf. Prelim. Doc. No. 16, supra note 22.Two other documents on the Hague Conference website, both producedby Avril D. Haines, provide insight into the problems the Conference hasfaced, especially in connection with the internet and also the problems relatedto choice of court agreements. See Hague Conf. Prelim. Doc. No. 17, supranote 22.; Hague Conference, Choice of Court Agreements in InternationalLitigation: Their Use and Legal Problems to Which They Give Rise in the Contextof the Interim Text, Prel. Doc. No. 18 (Feb. 2002) (prepared by Avril D.Haines) [hereinafter Hague Conf. Prelim. Doc. No. 18], available athttp://www.hcch.net/e/workprog/jdgm.html (last visited October 7, 2004); seealso Fausto Pocar, The Drafting of a World-Wide Convention on Jurisdictionand the Enforcement of Judgments: Which Format for the Negotiations in TheHague?, in LAW AND JUSTICE, supra note 8.248. See discussion supra Part VI.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM62 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1pendens and forum non conveniens. The 2001 Interim Draft providesfor a lis pendens based on first filed or “seised,” but allowingthe potential for declining jurisdiction in favor of a “clearly moreappropriate forum.” Thus the objectionable aspect of the BrusselsConvention/Regulation of creating a race to file is tempered byconsiderations of appropriateness and convenience. Similarly, thepotential for broad discretionary declining of jurisdiction is limitedto a specific time period and specific elements of convenience, butalso tied to the potential for subsequent enforcement. 249B. The Choice of Court ConventionAfter a stalemate in 2001 in connection with producing acomprehensive jurisdiction and judgments convention to whichthe U.S. would be a party, some country members of the HagueConference called for a scaled-back convention that might providelimited relief while not addressing some of the controversial areasinvolving consumers, electronic commerce, and intellectual property.Beginning in October 2002, an Informal Working Group metto attempt to draft a less inclusive convention, ultimately comingup with a draft of a choice of court agreements convention afterthree meetings. The hope was to produce a choice of court/forum249. For a discussion of forum non conveniens and the balance with lispendens, especially in relation to the Hague Convention 1999 and 2001drafts, see Ronald A. Brand, Comparative Forum Non Conveniens and theHague Convention on Jurisdiction and Judgments, 37 TEX. INT=L L.J. 467(2002). Professor Brand has been a member of the U.S. delegation to theHague Conference for the Jurisdiction and Judgments Convention, and hasnoted:The common elements of forum non conveniens doctrine throughoutthe common law world have been incorporated into the rules foundin Article 22 of the Interim Text of a Hague Convention on jurisdictionand foreign judgments. . . . At the same time, this provision isbalanced against the lis pendens rules found in Article 21. The combinationintegrates elements of predictability found in the civil lawlis pendens approach with the search for equitable results that underliesthe common law forum non conveniens doctrine. . . . Articles21 and 22 of the Interim Text provide a constructive focus for comparativeanalysis and set the stage for progress in the world of parallellitigation.Id. at 495. See also Stephen B. Burbank, Jurisdictional Equilibration, theProposed Hague Convention and Progress in National Law, 49 AM. J. COMP.L. 203 (2001).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 63convention 250 that would enforce forum selection clauses and resultingjudgments, much as the New York Convention does witharbitration clauses and subsequent arbitral awards. Although onlya small piece of the puzzle of a judgments convention, a large portionof multiple proceedings is generated by actions contrary to forumselection clauses or actions to enforce forum selection clauses.A choice of court convention could have a positive impact not onlyon dispute resolution but also on transactional planning, providingenforcement for exclusive choice of court clauses as well as forthe resulting judgments.In a survey of practitioners conducted by the ABA Section ofInternational Litigation and Practice in October-November 2003,over 98% of those responding indicated that a convention on choiceof court agreements would be useful for their practice. Over 70%indicated that a convention would make them “more willing todesignate litigation instead of arbitration” in their contracts. 251The Hague Conference on Private International Law hassince produced a significant draft of an Exclusive Choice of CourtAgreements Convention. A full Special Commission was held inDecember 2003, and a second one in April 2004, from whichemerged the most recent draft, Working Document No. 110 E (Revised),available at the Hague Conference=s website. 252 Althoughthe earlier drafts had called for jurisdiction and a lis pendens forexclusive choice of court clauses, they also provided for recognitionand enforcement of non-exclusive clauses as well. The currentdraft addresses only exclusive choice of court clauses in internationalcases, as defined in Article 1(2). 253 The draft convention250. See Hague Conf. Prelim. Doc. No. 16, supra note 22, at n.4.251. The survey is a product of the ABA Working Group on the HagueConvention on Choice of Court Agreements, which is co-chaired by LouiseEllen Teitz and Janis H. Brennan, a partner at Foley, Hoag LLP in Washington,D.C. Douglas Earl McLaren at Bechtel SAIC Company LLC also helpedto develop the survey. Help was also provided by the D.C. Bar Associationand the Association of the Bar of the City of New York. The survey was basedon the draft text prior to the December 2003 Special Commission which providedsome coverage for non-exclusive choice of court agreements.252. Hague Conference, Special Commission on Jurisdiction, Recognitionand Enforcement of Foreign Judgments in Civil and Commercial Matters,Work. Doc. No. 110 E (Revised) (Apr. 2004) [hereinafter Working Doc. No.110 E (Revised)], available at http://www.hcch.net/e/workprog/jdgm.html.(last visited Dec. 12, 2004).253. Id. at art. 1.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM64 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1would enforce exclusive forum selection clauses under Article 5unless the agreement is “null and void” under the law of the chosencourt. A nonchosen, or derogated court, under Article 7 wouldbe required to suspend or dismiss its proceedings unless theagreement was null and void under the law of the chosen court,there was a lack of capacity under the law of the court seised, or“giving effect to the agreement would lead to a very serious injusticeor would be manifestly contrary to fundamental principles ofpublic policy.” 254 The April 2004 draft flags several policy issuesthat need further clarification. 255 The United States had hoped touse language parallel to the New York Convention but the groundof “very serious injustice” is similar to the current Supreme Courtstandard for substantive invalidity of “unreasonable or unjust” inThe Bremen v. Zapata Off-Shore Co. 256Other policy decisions are becoming more divisive in connectionwith the recognition and enforcement provisions and potentialreasons for non-enforcement. Recognition and enforcement of254. Id. at art. 7:Article 7 Obligations of a court not chosenIf the parties have entered into an exclusive choice of court agreement,any court in a Contracting State other than that of the chosencourt shall suspend or dismiss the proceedings unless Ba) the agreement is null and void under the law of the State of thechosen court;b) a party lacked the capacity to enter into the agreement under thelaw of the Stateof the court seised;c) giving effect to the agreement would lead to a very serious injusticeor would be manifestly contrary to fundamental principles ofpublic policy of the State of the court seised;d) for exceptional reasons, the agreement cannot reasonably be performed;ore) the chosen court has decided not to hear the case[, except where ithas transferred the case to another court of the same State as permittedby Article 5, paragraph 3 b)].Id. (citations omitted).255. See Id. at art. 7 nn.3-6; see also Hague Conference, Draft Report, PreliminaryDocument No. 26, Preliminary Draft Convention on Exclusive Choiceof Court Agreements, Prel. Doc. No. 26, at 54-55 (Dec. 2004) (prepared byMasato Dogauchi & Trevor C. Hartley), [hereinafter Prelim. Doc. No. 26],available at http://hcch.e-vision.nl/upload/wop/jdgm_pd26e.pdf (last visitedDecember 7, 2004).256. 407 U.S. 1 (1972).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 65a judgment that results from an exclusive choice of court clausedesignating a member state may be refused generally only if theagreement is null and void, the party lacked capacity, the defendantdid not have sufficient notice, the judgment was obtained byfraud, the recognition would be “manifestly incompatible” withpublic policy, or the judgment is inconsistent with another judgment.257 Thus, there is the opportunity for review of the validity of257. Working Doc. No. 110 E (Revised), supra note 252, at art. 9.Article 9 Recognition and enforcement1. A judgment given by a court of a Contracting State designated inan exclusive choice of court agreement shall be recognized and enforcedin other Contracting States in accordance with this Chapter.Recognition or enforcement may be refused only on the followinggrounds -a) the agreement was null and void under the law of the State of thechosen court, unless the chosen court has determined that theagreement is valid;b) a party lacked the capacity to enter into the agreement under thelaw of the requested State;c) the document which instituted the proceedings or an equivalentdocument, including the essential elements of the claim,i) was not notified to the defendant in sufficient time and in such away as to enable him to arrange for his defence, unless the defendantentered an appearance and presented his case without contestingnotification in the court of origin, provided that the law of theState of origin permitted notification to be contested, orii) was notified to the defendant in the requested State in a mannerthat violated the public policy of that State;d) the judgment was obtained by fraud in connection with a matterof procedure;e) recognition or enforcement would be manifestly incompatible withthe public policy of the requested State, including situations wherethe specific proceedings leading to the judgment were incompatiblewith fundamental principles of procedural fairness of that State; orf) the judgment is inconsistent with a judgment given in a disputebetween the same parties in the requested State, or it is inconsistentwith an earlier judgment given in another State between the sameparties and involving the same cause of action, provided that theearlier judgment fulfils the conditions necessary for its recognition inthe requested State[under an international agreement], and providedthat the inconsistent judgment was not given in contraventionof this Convention.[1 bis. Paragraph 1 shall also apply to a judgment given by a court ofa Contracting State pursuant to a transfer of the case from the chosencourt in that Contracting State as permitted by Article 5, para-

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM66 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1the exclusive forum selection clause three times: by the chosencourt when it takes jurisdiction, by the non-chosen court when itmust suspend or dismiss proceedings contrary to the exclusive forumselection agreement, and by the enforcing court at the time ofrecognition and enforcement of the judgment. The draft now indicatesthat the determination of validity is to be made under thelaw of the court chosen, but the non-chosen court and the enforcingcourt still have the possibility in rare cases to apply their publicpolicy.One addition in the December 2003 Special Commission was adamage provision that, contrary to the U.S. position, would allowa reduction in certain cases not only for awards of noncompensatorydamages or punitive damages, but also for compensatorydamages that are “grossly excessive.” 258 The “grossly excessivelanguage,” added near the end of the Special Commission,follows language that was in the 2001 draft. However, in the contextof a comprehensive judgments convention covering tort actions,this provision was a compromise of interests. In the smallercontractual choice of court convention, the provision makes nosense when parties have contractually chosen the forum to heartheir dispute. Indeed, the addition of Article 10(2)(a) (now Article15), initiated by Canada, makes the convention less attractive forbusinesses who might again favor arbitration since there is nosimilar provision for reduction of awards under the New YorkConvention and there is the possibility in some cases for punitivenoncompensatory damages to be upheld in full. The potential reviewand recognition is continued in the April 2004 draft, now asArticle 15. In addition, the April 2004 draft includes several categoriesof exclusions: asbestos related matters added by Canada, 259and natural resources and joint ventures items added by China. 260Brackets and footnotes, currently up to Number 18, have creptgraph 3 b).]Id. (citations omitted).258. Hague Conference, Special Commission on Jurisdiction, Recognitionand Enforcement of Foreign Judgments in Civil and Commercial Matters,Work. Doc. No. 49 E (Revised), art. 10 (Dec. 2003) (copy on file with author).Note that as a result of several additions and revisions to this December 2003draft, Article 10 has been renumbered as Article 15. Working Doc. No. 110 E(Revised), supra note 252, at art. 15.259. Working Document No. 110 E (Revised), supra note 252, at art. 20.260. Id. at art. 20 n.15.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 67into the newest draft, especially in connection with issues relatedto intellectual property. The simple, short initial draft, modeled onthe New York Convention, is becoming more complex with morespecial interests added and more areas where consensus is lacking.Thus the attempt to parallel the New York Convention hasbeen sabotaged.Nonprofit organizations continue to voice concerns with thenon-negotiated contracts and their potential inclusion in the conventionwhen commercial, a problem that ultimately reflects dissatisfactionwith the underlying substantive contract law thatvalidates contract formation in these circumstances. The currentdraft of the convention does not include an independent standardof substantive validity but incorporates a choice of law of the chosencourt.The final diplomatic conference, tentatively scheduled forJune 2005, will need to address several unresolved issues. Thereare still several areas to be worked out or refined including: scope;coverage of intellectual property and the Aincidental question”; relationshipto other regional conventions (particularly the EuropeanUnion), or what is called Adisconnection” 261 ; relationship of lispendens and stays to actions and judgments from courts of contractingand noncontracting states; bases for refusal to recognizechoice of court agreements and judgments; and the treatment ofdamage awards. There is also the question of how the conventionshould handle wholly domestic transactions for purposes of bothjurisdiction and enforcement, and what constitutes “wholly domestic.”For example, do we want a judgment resulting from acontract between a New York buyer and California seller, with aCalifornia choice of court, to be enforced under the conventionshould the buyer manage to move all of its assets out of the UnitedStates? Of course, the problem will be that the buyer would moveall the assets not to another contracting country, but to some offshorenoncontracting country.The convention would enforce forum selection clauses and resultingjudgments, much as the New York Convention does witharbitration clauses and subsequent arbitral awards. The conventionhas the potential to offer increased certainty and subsequent261. For a discussion of some of these issues of disconnection, see HagueConf. Prelim. Doc. No. 24, supra note 22.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM68 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1enforceability for consensual commercial transactions. From thestandpoint of parallel proceedings, the draft convention, or onesimilar, offers the possibility of reducing a significant amount ofparallel litigation through the enforcing “stick” of a modified lispendens provided in Article 7, and the “carrot” of enforcement inArticle 9, if not contrary to an exclusive choice of court clause. Reducingthe friction generated from these cases discussed abovewould go a long way to reduce the number and need for parallellitigation and to provide predictability in planning transactions. 262C. The American Law Institute and Other EffortsThe American Law Institute (ALI) has undertaken a projectto federalize the enforcement of judgments with a proposed statutecontaining a modified lis pendens provision, tied to subsequentenforceability of a judgment. The International Jurisdiction andJudgments Project was begun originally to produce implementinglegislation for a Hague Conference comprehensive jurisdiction andjudgments convention, but as the Hague project stalled, the ALI=swork has continued forward as a proposed federal statute, TheForeign Judgments Recognition and Enforcement Act (FJREA). 263Section 11 of the draft, “Declination of Jurisdiction WhenPrior Action is Pending,” adopts a basic lis pendens principle thatpresumes the first-filed matter, either here or abroad, should proceed,if that judgment would be entitled to recognition under theFJREA, which includes a reciprocity provision under Section 7. 264The U.S. court would stay or dismiss the second-filed U.S. action,unless the foreign action was based on jurisdictional grounds not262. There is still considerable work to be done on the problem of chosenand nonchosen courts in the 2004 Draft. See Prelim. Doc. No. 26, supra note255, at 146-52, 172-76.263. See INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note9.264. See id. at §§ 7, 11. A reciprocity requirement has been controversial.Scholars have criticized this reciprocity requirement that was included inHilton v. Guyot, 159 U.S. 113 (1895). See, e.g., Andreas F. Lowenfeld, NationalizingInternational Law: Essay in Honor of Louis Henkin, 36 COLUM. J.TRANSNAT=L L. 121, 128 (1997) (“The Supreme Court in Hilton v. Guyot waswrong in insisting on reciprocity.”); Richard H.M. Maloy & Desamparados M.Nisi, A Message to the Supreme Court: The Next Time You Get a Chance,Please Look at Hilton v. Guyot; We Think It Needs Repairing, 5 J. INT=L LEGALSTUD. 1, 2 (1999) (arguing that the Supreme Court should reject reciprocityfor enforcing foreign judgments).

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 69recognized under the FJREA or was subject to certain defenses.These defenses generally follow those enumerated in the UniformForeign Money-Judgments Recognition Act 265 and in Hilton v.Guyot. 266Section 11 also provides grounds for a court to decline to deferto another first-filed foreign action. A U.S. court could decide notto defer to a foreign action although first-filed where: (1) the U.S.forum was the “more appropriate forum”; (2) the foreign actionwas vexatious or frivolous; or (3) for “other compelling reasons.”Section 11 works in tandem with the nonrecogntion provisions byproviding for discretionary nonrecognition of a foreign judgmentwhen a prior action is pending in the United States. Article 11 isdesigned “to create an incentive for a foreign court to decline jurisdictionin favor of a prior U.S. proceeding.” 267 In addition, Section5 also provides for discretionary nonrecognition of antisuitinjunctions. Thus the ALI proposed statute would bring coherenceto this area of jurisprudence and provide a rule that encouragedsuit in the most appropriate forum by offering a lis pendens. 268This lis pendens would also encourage parties to avoid vexatiouslitigation or litigation filed to frustrate suit in the most appropriateforum by allowing a court to refuse to enforce a foreign judgmentobtained in a later filed foreign action, or one that wasdesigned to preempt litigation in the more appropriate U.S. forum,such as through an antisuit injunction or negative declaration. 269265. UFMJRA, supra note 17.266. 159 U.S. 113, 205-06 (1895). See discussion supra Part VI.267. INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 9at § 11 cmt. k.268. See Andreas F. Lowenfeld, Forum Shopping, Anti-suit Injunctions,Negative Declarations, and Related Tools of International Litigation, 91 AM.J. INT=L L. 314, 319-20 (1997).269. The ALI Statute builds on and perfects concepts like those in the theInternational Law Association=s project covering both forum non conveniensand parallel proceedings. See generally INT’L LAW ASS’N, LEUVEN/LONDONPRINCIPLES ON DECLINING AND REFERRING JURISDICTION IN CIVIL ANDCOMMERCIAL MATTERS (2000), at http://www.ilahq.org.; CONFLICT OFJURISDICTION MODEL ACT (1987), reprinted in Teitz, Taking Multiple Bites,supra note 6. The International Law Association project covers both forumnon conveniens and parallel proceedings. Efforts to harmonize approaches toparallel proceedings from a procedural standpoint could lead to a more consistentand predictable, as well as less abrasive, method of handling parallelproceedings and reduce the costs to parties and judicial systems. See StephenB. Burbank, Jurisdictional Equilibration: The Proposed Hague Convention

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM70 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:1Differences in approach to parallel litigation as well as differencesin jurisdiction “are a permanent source of conflict betweenthe courts of different nations and often hinder the recognitionand enforcement of foreign judgments.” 270 The ALI JudgmentsProject is a concrete means to reduce multiple proceedings, encouragingparties to sue once and in the most appropriate forumby both offering the carrot of a lis pendens and using the stick ofdenial of recognition of a judgment resulting from a violation. Indeed,as with the Hague Conference judgments projects, the ALIproject as well recognizes the need to address parallel litigationand inappropriate forum in any coherent effort to codify recognitionand enforcement. 271VIII. CONCLUSIONGlobal forum shopping with parallel proceedings has becomea worldwide problem, requiring more than unilateral actions. Thelast decade has shown the increasing need for a consistentjurisprudence in the United States and elsewhere to deal withmultiple proceedings, antisuit injunctions and deference to othercourts. The work at the Hague on a Choice of Court Conventionand the ALI International Jurisdiction and Judgments Projectwith an explicit lis pendens reflect attempts to address aspects ofmultiple proceedings. These varied and multiple approaches totransnational litigation offer the promise of harmonization inseveral areas, and thus hope for the attendant reduction in theamount of concurrent litigation and friction it generates. Theglobal efforts on many fronts to harmonize approaches to parallelproceedings from a procedural standpoint could lead to a moreconsistent and predictable, as well as less abrasive, method ofhandling parallel proceedings, and help reduce the costs to partiesand Progress in National Law, 49 AM. J. COMP. LAW 203, 204 (2001).270. Rolf Stürner, Some European Remarks on a New Joint Project of theAmerican Law Institute and UNIDROIT, 34 INT’L LAW. 1071, 1073 (2000)(discussing the ALI/UNIDROIT Principles and Rules of Transnational CivilProcedure.)271. The European Commission, in conjunction with the Brussels Regulation,has focused more on the issues of judicial cooperation within the Communityand with third countries. The integration of European law with thecommon-law and civil law origins also has an impact on the continued existenceof parallel proceedings and antisuit injunctions when one or more of thelitigants is a member state.

TEITZ VOLUME 10 ISSUE 1 PP 1-711/6/2005 12:45 PM2004] BOTH SIDES OF THE COIN 71and to judicial systems. Unfortunately, in the United States thereis a continuing attempt to squeeze the parallel proceedings probleminto the shoes of domestic doctrines, shoes that are both toosmall and too old to fit the larger needs of transnational disputeresolution.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PMTreating Spiritual and LegalCounselors Differently: MandatoryReporting Laws and the Limitations ofCurrent Free Exercise DoctrineAndrew A. Beerworth ∗If the First Amendment is to have any vitality, it oughtnot be construed to cover only the extreme andhypothetical situation in which a State directly targets areligious practice.Justice O’Connor 1INTRODUCTION“Congress shall make no law respecting an establishmentof religion, or prohibiting the free exercise thereof . . . .” 2It is, at least at this juncture, a well settled principle of FreeExercise jurisprudence that, while the freedom of religious belief∗ J.D. cum laude, Roger Williams University School of Law; B.A. 2000, TheUniversity of Vermont; Assoc. Attorney, Martinous Law Associates, Ltd. Iwould like to thank Professor Edward J. Eberle for his valuable comments onearlier drafts of this article. I would also like to thank my wife, Julia, and myparents, Mary and Steven Beerworth, for their love and support. Finally, Iam very grateful to the members of the Roger Williams University Law ReviewEditorial Board, especially Todd Barton, Kathryn Windsor and CameronJones, for their accomplished editorial insight and laudable respect for artisticautonomy.1. Employment Div. v. Smith, 494 U.S. 872, 894 (1990) (O’Connor, J.,concurring).2. U.S. CONST. amend. I.73

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM74 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73is absolute, the freedom to follow the dictates of conscience intothe realm of conduct may be sharply circumscribed. 3 The origins ofthis idea date back to Reynolds v. United States, 4 in which theCourt afforded no constitutional protection for religiously inspiredaction in contravention of duly enacted polygamy laws. 5 To permitjudicial meddling with the governmental power to shape and orderhuman behavior, the Reynolds Court reasoned, would “make theprofessed doctrines of religious belief superior to the law of theland, and in effect to permit every citizen to become a law untohimself.” 6 Sherbert v. Verner 7 and its progeny 8 theoretically underminedthe Reynolds philosophy by erecting a strict scrutiny regimefor religious conduct incidentally burdened by regulations ofgeneral applicability. 9 However, the stark pattern of unsuccessfulfree exercise claims advanced outside the narrow unemploymentcompensation context is a testament to the Court’s undeniably dilutedapplication of heightened scrutiny and its duplicitous adher-3. See Smith, 494 U.S. at 879. The Smith Court stated:Conscientious scruples have not, in the course of the longstruggle for religious toleration, relieved the individual fromobedience to a general law not aimed at the promotion orrestriction of religious beliefs. The mere possession of religiousconvictions which contradict the relevant concerns of apolitical society does not relieve the citizen from the dischargeof political responsibilities.Id. (quoting Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940)); Sherbert v. Verner, 374 U.S. 398, 403 (1963) (“[T]he Court hasrejected challenges under the Free Exercise Clause to governmental regulationof certain overt acts prompted by religious beliefs or principles . . . . ”);Braunfeld v. Brown, 366 U.S. 599, 603 (1960) (“[T]he freedom to act, evenwhen the action is in accord with one’s religious convictions, is not totally freefrom legislative restrictions.”); Reynolds v. United States, 98 U.S. 145, 164(1878) (“Congress was deprived of all legislative power over mere opinion, butwas left free to reach actions which were in violation of social duties or subversiveor good order.”).4. 98 U.S. 145 (1878).5. Id. at 165-66.6. Id. at 167.7. 374 U.S. 398 (1963).8. E.g., Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829 (1989);Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987); UnitedStates v. Lee, 455 U.S. 252 (1982); Thomas v. Review Bd., 450 U.S. 707(1981); Wisconsin v. Yoder, 406 U.S. 205 (1972).9. Yoder, 406 U.S. at 406-07 (demanding a showing of a “compellingstate interest” and a lack of “alternative forms of regulation” in order to justify“substantial infringement of religious liberties”).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 75ence to the belief/conduct distinction of Reynolds. 10Employment Division v. Smith, 11 therefore, is probably rightlyregarded as merely a formal recognition of the Court’s timehonoredabhorrence of constitutionally protected “lawlessness” – ofthe religious citizen becoming, in a sense, her own lawgiver due tosome religious tenet or sacramental rite. To assuage this fear, theCourt in Smith explicitly abandoned the strict scrutiny test, optinginstead for a rational basis test for all facially neutral andgenerally applicable laws. 12 In the immediate post-Smith era,there was much lamentation over the draconian implications of arule relegating the Free Exercise Clause to the function of policingonly those laws rife with religious animus. 13 But now that the tideof criticism against Smith has subsided somewhat, many commentatorshave directed their attention to the protective nuances ofSmith, particularly the nondiscrimination idea implicit in the neutralityand general applicability requirements. 14 Smith has beencharacterized largely as safeguarding a right against disparatetreatment: when lawmakers decide to carve out secular exceptionsin order to alleviate a secular burden of some sort, Smith mayprovide a window or trigger to strict scrutiny for claimants seekinga corresponding religious exception. 15 Accordingly, Smith enforcesa basic rule couched in the idiom of equal protection: The10. Of the plethora of free exercise claims brought, the Court has recognizedonly one. See Yoder, 406 U.S. at 234 (1972) (invalidating compulsoryschool-attendance policy as applied to Amish parents objecting on religiousgrounds to send their children to school).11. 494 U.S. 872 (1990).12. Id. at 878-79. The Court explained:We have never held that an individual’s religious beliefs excusehim from compliance with an otherwise valid law prohibitingconduct that the State is free to regulate . . . . Subsequentdecisions have consistently held that the right of free exercisedoes not relieve an individual of the obligation to comply with a‘valid and neutral law of general applicability on the ground thatthe law proscribes (or prescribes) conduct that his religionprescribes (or proscribes).’Id. (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J.,concurring)).13. Infra Part II.14. Infra Part I.15. See Christopher C. Lund, A Matter of Constitutional Luck: The GeneralApplicability Requirement in Free Exercise Jurisprudence, 26 HARV. J.L.& PUB. POL’Y 627, 638 (2003).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM76 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73law must treat similar religious and secular conduct equally in orderto pass constitutional muster.Smith left some major questions unanswered as to the meaningand scope of the neutrality and general applicability requirements,and Church of the Lukumi Babalu Aye v. City of Hialeah, 16handed down three years after Smith, offered little in the way ofelucidation. Lukumi stands for the general proposition that a lawburdening only religious conduct is neither neutral nor of generalapplication. 17 However, Lukumi merely reaffirmed the intuitivelyobvious: that specifically applicable laws are not generally applicable.The Court in Smith essentially said as much when it opinedthat a prohibition on “bowing down before a golden calf” would“doubtless be unconstitutional.” 18 The more fruitful inquiry, however,is whether a law applicable to a broad class of secular andreligious entities with only a single exemption for a particularform of non-religious conduct would violate the rule of Smith. Untilthe Court confronts a more difficult fact-pattern than that presentedin Lukumi – one involving a generally, though notuniversally, applicable law – the precise contours of the Free ExerciseClause will likely remain indiscernible.Certain state mandatory reporting laws on child abuse andneglect provide a useful backdrop against which one might explorethe reach of the Smith/Lukumi regime. 19 These laws are variegatedas to who must report, what information must be reported,and in what manner the reports must be made. All fifty statescurrently have clergy-communicant privilege statutes that havebeen (1) completely preserved, (2) partially suspended or (3)wholly suspended for purposes of either (a) the reporting duty or(b) the admissibility of evidence in proceedings initiated pursuantto their respective reporting laws, or (c) both the reporting dutyand the admissibility of evidence. 20 A majority of jurisdictions,16. 508 U.S. 520 (1993).17. See id. at 543 (“The principle that government, in pursuit of legitimateinterests, cannot in a selective manner impose burdens only on conductmotivated by religious belief is essential to the protection of the rights guaranteedby the Free Exercise Clause.”) (emphasis added).18. 494 U.S. at 877-78.19. For a brief discussion on this topic, see Andrew Beerworth, Religionin the Marketplace: Establishments, Pluralisms, and the Doctrinal Eclipse ofFree Exercise, 26 T. JEFFERSON L. REV. 333, 380, 383 (2004).20. Infra Part IV.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 77particularly in the wake of the Catholic Church abuse scandal,have imposed a reporting duty on clergy members in addition to alitany of secular agents, such as social workers, physicians, psychiatrists,firefighters and child care providers. Many of thesestates have expressly left the clergy-communicant privilege intactwhile imposing stringent reporting duties on a host of secularentities. Several of them, however, have destroyed theclergy-communicant privilege while simultaneously preservingthe attorney-client privilege. This article examines the constitutionalimplications of reporting statutes that fall into this lattercategory.Mandatory reporting schemes have been hotly debated in contextsother than free exercise. Issues related to the efficacy ofmandatory reporting laws have been amply discussed elsewhere, 21and are beyond the scope of this article. Instead, this article attemptsto analyze the constitutionality of certain reporting lawsutilizing the neutrality and general applicability requirementsthat steer current free exercise doctrine. The unique design of reportinglaws that treat spiritual and legal counselors differentlyfurnishes an optimal crucible for measuring the sensitivity of thenondiscrimination principle to unjustifiable disparities in treatment.The Court has left several tell-tale signs in the post-Smithera that the Free Exercise Clause has been whittled down to protectagainst only those laws abounding with animus, and not necessarilyagainst those laws that contain more subtle prejudices, ormore finely drawn devaluations of the reasons for engaging in religiousconduct. 22 All things considered, the nondiscrimination ruleappears extremely limited; thus, there may be renewed cause tobelieve the rule of Smith should be seriously reevaluated. Or atleast that is the burden of this article.This article consists of five sections. Section I examines thestrict scrutiny exceptions to the Smith rule of rational basis reviewfor generally applicable laws that incidentally burden certainforms of religiously motivated conduct. Furthermore, Section I examinesthe philosophical bases of the majority opinion in Smith21. See generally Victor I. Vieth, Passover in Minnesota: Mandatory Reportingand the Unequal Protection of Abused Children, 24 WM. MITCHELL L.REV. 131 (1998); Steven J. Singley, Comment, Failure to Report SuspectedChild Abuse: Civil Liability of Mandatory Reporters, 19 J. JUV. L. 236 (1998).22. Infra Part V.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM78 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73from the standpoint of its principal author, Justice Scalia. SectionII of this article discusses the ostensible meaning of the neutralityand general applicability requirements in Smith and Lukumi. SectionIII examines two Third Circuit decisions, Fraternal Order ofPolice v. Newark 23 and Tenafly Eruv Association, Inc. v. Boroughof Tenafly, 24 that provide credible bases for extending the nonpersecutionprinciple well beyond the facts of Lukumi. Section IVprovides an overview of mandatory reporting laws at the statelevel,compares the attorney-client and clergy-communicant privileges,and proposes a cogent methodology for assessing the constitutionalityof mandatory reporting laws consistent with currentfree exercise doctrine. Section V analyzes the impact of the newlyminted Locke v. Davey 25 on the Court’s free exercise doctrine, acase that could likely result in even greater governmental burdensupon religiously motivated conduct. Finally, the conclusion of thisarticle argues that a free exercise challenge to the various mandatoryreporting laws that abrogate the clergy-communicant privilegewhile preserving the attorney-client privilege may prompt theCourt to reexamine, or at least qualify, the rational basis test establishedin Smith.I. SMITH AND THE RESIDUAL EXCEPTIONS TO RATIONAL BASIS REVIEWSmith arose from the denial of unemployment benefits tomembers of the Native American Church for engaging in the sacramentalingestion of peyote in violation of an employment policyand Oregon’s “controlled substance” prohibition. 26 The religiousclaimants sought an exemption under the Oregon law based onthe Sherbert standard whereby only a “compelling state interest” 27and a lack of “alternative forms of regulation” 28 could justify “substantialinfringement” 29 on religious exercise. Because illegal trafficin peyote was virtually nonexistent, 30 the State’s health andsafety reasons for denying a narrow exemption for its sacramental23. 170 F.3d 359 (3d Cir. 1999).24. 309 F.3d 144 (3d Cir. 2002).25. 124 S. Ct. 1307 (2004).26. Smith, 494 U.S. at 874.27. Sherbert v. Verner, 374 U.S. 398, 406 (1963).28. Id. at 407.29. Id.30. See Smith, 494 U.S. at 916 (Blackmun, J., dissenting) (“There is . . .practically no illegal traffic in peyote.”).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 79use could scarcely have been deemed “compelling.”But Justice Scalia, authoring the majority opinion in Smith,dodged heightened scrutiny altogether and altered the doctrinallandscape: “[T]he right of free exercise does not relieve an individualof the obligation to comply with a ‘valid and neutral law ofgeneral applicability on the ground that the law proscribes (orprescribes) conduct that his religion prescribes (or proscribes).” 31The Court thereby refused “to breathe into Sherbert some life beyondthe unemployment compensation field.” 32 In addition toclaims arising in unemployment compensation systems of “individualizedexemptions” that utilize a “good cause” standard foreligibility, 33 strict scrutiny analysis after Smith applies only to“governmental regulation of religious beliefs as such,” 34 free exercisechallenges involving a “hybrid-right,” 35 laws requiring the“compelled expression” 36 of certain beliefs, and to laws prohibitingreligiously motivated behavior that fail the neutrality/general applicabilitytest. 3731. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982)(Stevens, J., concurring in judgment)).32. Id. at 884.33. Id. (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986)).34. Id. at 877 (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)).35. Id. at 881.The only decisions in which we have held that the FirstAmendment bars application of a neutral, generally applicablelaw to religiously motivated action have involved not the FreeExercise Clause alone, but the Free Exercise Clause in conjunctionwith other constitutional protections, such as freedomof speech and of the press (citations omitted), or the right ofparents . . . to direct the education of their children.Id.36. Id. (“Some of our cases prohibiting compelled expression, decidedexclusively upon free speech grounds, have also involved freedom ofreligion.”).37. See id. at 878-80. Smith has also been interpreted as preserving“church autonomy” or institutional decisions involving religious property andpersonnel. See id.at 877 (“The government may not . . . lend its power to oneor the other side in controversies over religious authority or dogma.”); seealso, Ira C. Lupu, The Case Against Legislative Codification of Religious Liberty,21 CARDOZO L. REV. 565, 576 (1999). Lupu explained:[N]o court in the last decade has held [Smith] to have underminedthe pre-existing constitutional principles of churchautonomy in matters of property or personnel . . . . [D]espiteTitle VII’s generally applicable ban on sex discrimination inemployment, Smith will not require the Catholic Church or

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM80 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73A. The Hybrid-Right ExceptionSmith supposedly carved out a strict scrutiny niche for “hybrid-right”situations in which a free exercise claim is bound to aconstitutionally protected “communicative activity or parentalright.” 38 Scalia, however, made no attempt in Smith to explain thelogic of a rule conditioning religious liberty on the fortuitous collisionof free exercise and another colorable constitutional claim. Inthe post-Smith era, the freewheeling hybrid-right exception hasleft the lower federal courts hopelessly perplexed, and most ofthem have given the exception little or no credence. 39 JusticeSouter has identified the ineluctable flaw of the hybrid-right exception:If a hybrid claim is simply one in which another constitutionalright is implicated, then the hybrid exceptionwould probably be so vast as to swallow the Smithrule . . . . But if a hybrid claim is one in which a litigantwould actually obtain an exemption from a formally neutral,generally applicable law under another constitutionalprovision, then there would have been no reasonfor the Court in what Smith calls the hybrid cases to havementioned the Free Exercise Clause at all. 40Scalia concluded in Smith that the communal ingestion ofpeyote is not sufficiently communicative or expressive to triggerthe hybrid exception. 41 Conversely, religiously impelled antigovernmentepithets would be entitled to the utmost constitutionalprotection quite apart from any free exercise dimension. Intheory, then, the hybrid-right exception may cover a hitherto unchartedmiddle ground between the donning of a yarmulke or theOrthodox Jewish congregations to allow women into theclergy.Id.38. Smith, 494 U.S. at 882.39. See Jonathan B. Hensley, Comment, Approaches to the Hybrid-RightsDoctrine in Free Exercise Cases, 68 TENN. L. REV. 119, 138 (2000) (“Only afew . . . decisions have earnestly tried to make sense of the vague dicta inSmith about hybrid situations. . . . ”).40. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520, 567 (1993) (Souter, J., concurring).41. Smith, 494 U.S. at 882 (“The present case does not present such ahybrid situation, but a free exercise claim unconnected with any communicativeactivity or parental right.”).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 81ingestion of peyote, and outright religious speech. 42 In Wisconsinv. Yoder, 43 one of the decisions that Scalia distinguished on the“hybrid-right” basis, 44 the Court recognized that “there are areasof conduct protected by the Free Exercise Clause of the FirstAmendment and thus beyond the power of the State to control,even under regulations of general applicability.” 45 Thus, the hybrid-exceptionis perhaps rightly regarded as an insincere and inartfulattempt to distinguish undesirable precedent. 46 Practicallyspeaking, few courts and commentators consider the hybrid-rightexception to be a viable route for proponents of religious liberty. 47As such, it is a remnant of Smith bereft of any real vigor.B. The “Hollow Freedom” of Religious BeliefThe Court has consistently proclaimed the fundamentality ofreligious belief, affording it the utmost protection. 48 Fortunately,this absolutist ethos emerged from Smith completely unscathed. 49Perhaps the most enduring conceptual nexus between the ReligionsClauses has been the “inviolable citadel of the individualheart and mind,” 50 which is besieged both when the machinery ofgovernment is used to impose a religious orthodoxy on its citizens(such as laws favoring theistic prayer), 51 and when the governmentdiscriminates on the basis of religious viewpoint. 52 Religious42. See Beerworth, supra note 19, at 372.43. 406 U.S. 205 (1972).44. Smith, 494 U.S. at 881.45. Yoder, 406 U.S. at 220 (emphasis added).46. Ira C. Lupu, Employment Division v. Smith and the Decline of SupremeCourt-Centrism, 1993 BYU L. REV. 259, 267 (1993).47. See Timothy J. Santoli, Note, A Decade After Employment Division v.Smith: Examining How Courts are Still Grappling with the Hybrid-RightsException to the Free Exercise Clause of the First Amendment, 34 SUFFOLK U.L. REV. 649, 672 (2001).48. See, e.g., Sherbert v. Verner, 374 U.S. 398, 402 (1963) (“The door ofthe Free Exercise Clause stands tightly closed against any governmentalregulation of religious beliefs as such.”); Braunfeld v. Brown, 366 U.S. 599,603 (1960) (“[T]he freedom to hold religious beliefs and opinions is absolute.”).49. See Smith, 494 U.S. at 877 (“The free exercise of religion means, firstand foremost, the right to believe and profess whatever religious doctrine onedesires.”).50. Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 226(1963).51. See Lee v. Weisman, 505 U.S. 577, 592 (1992).52. See Smith, 494 U.S. at 877 (“It would be true . . . that a State would

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM82 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73conscience, unlike religious conduct, is constitutionally imperviousto governmental coercion.The revered status of religious conscience, however, has oftenbeen of little avail from the standpoint of the believer. In Lyng v.Northwest Indian Cemetery Protective Ass’n, 53 the Court upheldthe Forest Service’s road-building and timber-harvesting projecton government land that had been a sacred site of the centuriesoldYurok, Tolowa and Karok religions. 54 The Court acknowledgedthe fact that road construction over the hallowed parcels posed an“extremely grave” threat to Native American religious practices, 55but consolingly reminded the religious claimants of their inviolablefreedom to believe. 56 As Justice Brennan so eloquently wrote inhis Lyng dissent: “that freedom amounts to nothing more than theright to believe that their religion will be destroyed.” 57 So long asthe body is not at liberty to obey the spiritual dictates of the mind,the oft-touted liberty of conscience is what Brennan termed a “hollowfreedom” 58 for many religious citizens.Under Smith, religiously motivated conduct is not entitled toheightened scrutiny unless the claimant can show that its legalproscription is not neutral or not generally applicable. 59 This belief/conductdistinction is akin to the speech/conduct distinction infree speech jurisprudence and weakens the Free Exercise Clausein two major respects. First, such a distinction flies directly in theface of the plain meaning 60 and original understanding 61 of thebe ‘prohibiting the free exercise of [of religion]’ if it sought to ban such acts orabstentions only when they are engaged in for religious reasons, or only becauseof the religious belief that they display.”).53. 485 U.S. 439 (1988).54. Id. at 446.55. Id. at 451.56. Id. at 453.57. Id. at 477 (Brennan, J. dissenting).58. Id. (“The safeguarding of such a hollow freedom . . . fails utterly toaccord with the dictates of the First Amendment.”); see Beerworth, supra note19, at 370.59. Smith, 494 U.S.at 879.60. See id., 494 U.S. at 893 (O’Connor J., concurring) (“Because the FirstAmendment does not distinguish between religious belief and religious conduct,conduct motivated by sincere religious belief, like the belief itself, mustbe at least presumptively protected by the Free Exercise Clause.”).61. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508U.S 520, 575-576. In his concurrence, Justice Souter stated:There appears to be a strong argument from the Clause’s

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 83Free Exercise Clause. On a purely textual plane, the Clause encompassesreligious belief and conduct, thereby requiring (at aminimum) a rigorous balancing test presumptively protecting religiouslyimpelled action, irrespective of a law’s character. 62 Second,the belief/conduct dichotomy relegates the Clause to thefunction of protecting religion in its expressive manifestations,thereby placing religion under the rubric of free speech. Equatingreligion with speech in this manner has led to a kind of doctrinalconflation whereby free exercise has been eclipsed by the distinctlyfree speech hallmarks of viewpoint neutrality 63 and expressiveassociation. 64 This doctrinal conflation (or confusion), thoughprotective of religious belief, “undermines our commitment to theidea that there is something unique and distinctive about religionin life and in constitutional law.” 65C. Neutrality and General Applicability: Free Exercise as EqualProtectionAll laws that fail the neutrality or general applicability requirements“must be justified by a compelling governmental interestand must be narrowly tailored to advance that interest.” 66development in the First Congress, from its origins in thepost-Revolution state constitutions and pre-Revolution colonialcharters, and from the philosophy of rights to which theFramers adhered, that the Clause was originally understoodto preserve a right to engage in activities necessary to fulfillone’s duty to one’s God, unless those activities threatenedthe rights of others or the serious needs of the State.Id. (Souter, J., concurring). See generally Michael W. McConnell, The Originsand Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV.1409 (1990) (arguing that the Free Exercise Clause was originally understoodas protecting action as well as belief, namely through mandatory exemptionsfrom generally applicable laws); Beerworth, supra note 19, at 373.62. See Smith, 494 U.S. at 877.63. See Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S.819, 845-46 (1995) (holding that exclusion of a student religious magazinefrom university program covering printing costs of similar nonreligious publicationsconstituted viewpoint discrimination under the Free Speech Clause).64. See Widmar v. Vincent, 454 U.S. 263, 273-77 (1981) (holding unconstitutional,on an expressive association rationale, a university policy excludingstudent religious groups from an “open forum” on campus).65. Alan Brownstein, Protecting Religious Liberty: The False Messiahs ofFree Speech Doctrine and Formal Neutrality, 18 J.L. & POL. 119, 184 (2002).66. Lukumi, 508 U.S. at 531-532.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM84 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73The Court in Lukumi recognized that general applicability – theanimating theme of free exercise doctrine – leads inexorably to adistinctly “equal protection mode of analysis.” 67 Indeed, theCourt’s opinion in Lukumi is replete with equal protection allusions,particularly as it grapples with problems of overbreadth 68and underinclusion. 69 The Free Exercise Clause is cast as a bulwarkagainst “unequal treatment” 70 and an antidote for the “evil”of a “prohibition that society is prepared to impose upon [a religiousminority] but not upon itself.” 71Justice Scalia, the creator of the general applicability rule asapplied within the free exercise context, 72 offered two illustrationsof the protective dynamic of free exercise doctrine after its permutationin Smith: the Free Exercise Clause, he conceded, wouldcompel invalidation of a ban on the “casting of ‘statues that are tobe used for worship purposes,’” 73 and a prohibition on prostratingoneself before a golden calf. 74 These hypothetical enactments,however, are patently violative of long-established free exerciseand equal protection principles. 75 The Carolene Products philosophycontemplated application of “a more searching judicial inquiry”for “statutes directed at particular religious, or national, orracial minorities.” 76 The Warren Court, in particular, realized thenecessity of utilizing a heightened scrutiny standard when theMadisonian model of pluralistic bargaining collapsed under com-67. Id. at 540.68. See id. at 538 (“We also find significant evidence of the ordinances’improper targeting of Santeria sacrifice in the fact that they proscribe morereligious conduct than is necessary to achieve their stated ends.”).69. See id. at 543 (finding the ordinances “underinclusive” for the ends ofpublic health and preventing cruelty to animals because “[t]hey fail to prohibitnonreligious conduct that endangers these interests in a similar orgreater degree than Santeria sacrifice does.”).70. Id. at 542 (quoting Hobbie v. Unemployment Appeals Comm’n, 480U.S. 136, 148 (1987) (Stevens, J., concurring in judgment)).71. Lukumi, 508 U.S. at 545 (quoting Florida Star v. B.J.F., 491 U.S. 524,542 (1989) (Scalia, J., concurring in part and concurring in judgment)).72. For Scalia’s discussion on the general applicability rule, see Smith,494 U.S. 878-82.73. Smith, 494 U.S. at 877-878.74. See id. at 878.75. See McDaniel v. Paty, 435 U.S. 618, 626 (1978); Fowler v. Rhode Island,345 U.S. 67, 69 (1953).76. United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938)(citations omitted) (emphasis added).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 85mon prejudices against certain racial, ethnic and religiousgroups. 77 Thus, religion was treated as a suspect class for FourteenthAmendment purposes well before Smith, quite apart fromits explicit protection within the First Amendment.Lukumi places religion-specific classifications on par withrace-specific classifications – both of which are to be strictly scrutinizedusing equal protection analysis 78 – and the Free ExerciseClause becomes something of a constitutional tautology. 79 Underthe race model, disparate treatment challenges to facially neutrallaws must show a “racially discriminatory intent or purpose.” 80But just as “disproportionate impact . . . is not the sole touchstoneof an invidious racial discrimination forbidden by the Constitution,”81 so it is that the Lukumi model for religion requires proof ofa discriminatory intent or purpose. 82 Both models permit inferencesof a discriminatory purpose “from the totality of the relevantfacts,” 83 or “from both direct and circumstantial evidence.” 84 In theend, Smith and Lukumi do not add any protections to the FreeExercise Clause; they simply allow judicial enforcement of a preexistingbare essential, namely the “fundamental nonpersecutionprinciple.” 85 And, it seems, the Equal Protection Clause is thepreferable means by which to enforce it. Consequently, the FreeExercise Clause has become a platitudinous provision devoid ofany independent potency.77. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIALREVIEW 79-81 (1980); Beerworth, supra note 19, at 359.78. The Court has held that even benign religion and race-specific classificationsviolate principles of formal neutrality and equality. See Bd. of Ed. v.Grumet, 512 U.S. 687, 690 (1994) (invalidating a pro-religious gerrymanderdelegating school district authority to a sect of Hasidic Jews under the EstablishmentClause); cf. Adarand Constr., Inc. v. Pena, 515 U.S. 200 (1995)(holding, on equal protection grounds, that all governmental race based “affirmativeaction” policies must survive “strict scrutiny”).79. See Beerworth, supra note 19, at 377.80. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,265 (1977).81. Washington v. Davis, 426 U.S. 229, 242 (1976).82. See Lukumi, 508 U.S. at 540.83. Davis, 426 U.S. at 242.84. Lukumi, 508 U.S. at 540.85. Id. at 523.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM86 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73D. Smith and the Scalian Conception of Judicial DiscretionSmith allows democratic majorities to prohibit religious practicesto their liking so long as the prohibition is generally applicable.86 The religious citizen has been lost in the vicissitudes ofjudicial process because there is no qualitative difference to herbetween a persecutory law and a generally applicable one. Undereither scheme, she is forced to render to Caesar that which mostemphatically belongs to God. As Justice O’Connor reminded theCourt in Smith, “[a] person who is barred from engaging in religiouslymotivated conduct . . . is barred from exercising his religionregardless of whether the law prohibits the conduct only when engagedin for religious reasons, only by members of that religion, orby all persons.” 87Smith, however, is justifiable on some levels. Scalia voiced avalid concern in Smith that a continued weak application of the“compelling interest” test in free exercise cases could spill overinto other contexts, such as for content-based restrictions onspeech or race-specific classifications, producing a kind of crossdoctrinaldilution. 88 Scalia also expressed a profound distaste fordiscretionary balancing tests: “[I]t is horrible to contemplate thatfederal judges will regularly balance against the importance ofgeneral laws the significance of religious practice.” 89 What Scaliamight have found so “horrible” was the prospect of judges maskingtheir predilections and prejudices toward certain religions (or religiongenerally) in easily manipulated and nebulous balancingtests. 90 The discretion to judge the relative weight of competing interests(religious and governmental) is also the discretion to dis-86. Smith, 494 U.S. at 890. The Court stated:It may fairly be said that leaving accommodation to the politicalprocess will place at a relative disadvantage those religiouspractices that are not widely engaged in; but thatconsequence of democratic government must be preferred toa system in which each conscience is a law unto itself or inwhich judges weigh the social importance of all laws againstthe centrality of all religious beliefs.Id.87. Id. at 893 (O’Connor, J., concurring).88. See id. at 888 (“[W]atering down [the compelling state interest test]would subvert its rigor in the other fields where it is applied.”).89. Id. at 889 n.5.90. See Beerworth, supra note 19, at 377-78.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 87criminate, especially against religious practices that offend prevailingsocial mores.The specter of judicially imposed value judgments, along withthe oft-repeated fear of promoting “a system in which each conscienceis a law unto itself,” 91 led Scalia to the solution of “leavingaccommodation to the political process.” 92 The Smith majority’spreference for legislative accommodation of religious libertymeshes nicely with Scalia’s broader judicial philosophy. Scalia hasforcefully advocated the “democratic government” solution in otherareas in which certain “liberty interests” are at stake. For example,he has sharply criticized the “undue burden” standard used inthe Court’s abortion jurisprudence as an “amorphous” 93 and “inherentlystandardless” inquiry that “invites the . . . judge to giveeffect to his personal preferences about abortion.” 94 As with religion,he has proposed a “state-by-state resolution” 95 of the abortionmatter because the “permissibility of abortion, and the limitationsupon it, are to be resolved like most important questions in ourdemocracy: by citizens trying to persuade one another and thenvoting.” 96Advancing a similar argument against a constitutionally recognizedliberty interest to refuse life-sustaining medical treatment,Scalia has expounded a theory of democratic governmentand of the role of the federal judiciary:Our salvation is the Equal Protection Clause, which requiresthe democratic majority to accept for themselvesand their loved ones what they impose on you and me.This Court need not, and has no authority to, inject itselfinto every field of human activity where irrationality andoppression may theoretically occur, and if it tries to do soit will destroy itself. 97Smith effectively incorporates this Scalian conception of judi-91. Id. at 890.92. Id.93. Planned Parenthood v. Casey, 505 U.S. 833, 985 (1992) (Scalia, J.,dissenting).94. Id. at 992.95. Id. at 995.96. Id. at 979.97. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 300-01(1990) (Scalia, J., concurring) (emphasis added).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM88 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73cial discretion by giving the content of the Free Exercise Clause tothe “democratic majority,” subject only to the strictures of theEqual Protection Clause. Scalia concedes that this concept toleratessome modicum of “irrationality and oppression” as an “unavoidableconsequence of democratic government.” 98 In the contextof religion, “those religious practices that are not widely engagedin” are placed “at a relative disadvantage” 99 because religious minoritieslack the political capital necessary to procure exemptionsfrom generally applicable laws. As noted above, Scalia advances avery convincing argument for judicial restraint in the context ofreproductive rights and the right to die, both of which have arisenunder the broader right to privacy rubric. He asserts that any detachedobserver armed with the text or original understanding ofthe Due Process Clause is forced to conclude that the Constitutionis inscrutably silent even with regard to the threshold question ofwhether there is some “right to privacy” in the first place. 100 Ofcourse, this argument cannot be tenably advanced against theright to practice one’s religion free from governmental intrusion, aright anchored more cognizably in the text and history of the Constitution.It is one thing to decry the dubious exegetical vacuum that issubstantive due process analysis, but it is quite another to ignorerights explicitly rooted in the constitutional text. 101 Of course, religiousfreedom falls within this latter category. The Smith majorityglossed over this important distinction and granted the majoritarianprocess considerable latitude in an area in which the Constitutionquite unequivocally maintains that the free exercise ofreligion is to be prohibited by “no law.” On the battleground ofSmith, Scalia’s textualist creed clashed irreconcilably with his “restraintist”convictions, and the impulse to cabin judicial discretionprevailed over his usual preference for textual fidelity.98. Smith, 494 U.S. at 890.99. Id.100. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTSAND THE LAW 39 (1997).101. See Michael W. McConnell, Religious Participation in Public Programs:Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 136 (1992).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 89II. DEFINING THE CONCEPTS OF NEUTRALITY AND GENERALAPPLICABILITYThe Court in Smith gave little meaningful content to the conceptsof neutrality and general applicability. But Smith is illuminatingin at least two respects. First, the so-called “generallyapplicable” Oregon drug prohibition itself contained an exceptionfor substances prescribed by a medical practitioner. 102 The factthat the Oregon law was not free from exceptions, consideredalongside the fact that peyote had no medicinal value, raises thequestion of just how closely related a nonreligious exception mustbe to a prohibition on religious exercise in order to fail the generalapplicability test. The Smith Court made no effort to determinewhether the sacramental use of peyote undermined health andsafety concerns any more or less than the medicinal use of otherhallucinogenic drugs. 103 Would an exception premised on the medicinalusefulness of peyote have furnished such a basis? Morequestions spring from this seemingly inessential feature of Smith.For instance, can a single nonreligious exception ever fail theSmith test, or must there be several exceptions cut into a law forit to shed its generally applicable character? Or is the thrust ofSmith that a law becomes constitutionally suspect upon a findingthat a nonreligious exemption actually thwarts the purported governmentalinterests in regulating similar, but religiously motivated,conduct?Second, the Court in Smith seemed to relate the necessity ofheightened scrutiny to the type of regulatory scheme at issue.Among the Court’s reasons for confining the compelling intereststandard to the unemployment compensation context was that the“good cause” standard for determining compensation benefits eligibility“‘created a mechanism for individualized exemptions.’” 104In such a context-dependent and potentially value-laden exemptionsystem, a state “may not refuse to extend that system to cases102. See Smith, 494 U.S. at 874.103. Id. The Oregon statute under review in Smith defined a “controlledsubstance” as “a drug classified in Schedules I through V of the Federal ControlledSubstances Act.” ORE. REV. STAT. § 475.005(6) (1987) (citing 21 U.S.C.§§ 811-812). However, the statute provided a general exemption for substances“prescribed by a medical practitioner.” Id. § 475.992(4).104. Smith, 494 U.S. at 884 (quoting Bowen v. Roy, 476 U.S. 693, 708(1986)).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM90 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73of ‘religious hardship’ without compelling reason.” 105 The Courtcouched the unemployment compensation cases in terms of generalapplicability 106 but failed to indicate whether individualizedexemption systems are illustrative or exhaustive of the types oflaws that are not generally applicable under Smith. It would notbe extravagant to maintain that the general applicability requirementmight be so limited as to insulate categorical exemptionsfrom ready constitutional challenges. 107 Indeed, at least twofederal circuit courts have concluded that the non-discriminationprinciple of Smith does not apply to regulatory schemes containing“objectively-defined categories” of selection. 108A. The “Easy” Case of LukumiLukumi involved four city ordinances drafted for the specificpurpose of prohibiting sacrificial animal slaughter, a central ritualof the Santeria religion. 109 In a concurring opinion, Justice Blackmun(in conjunction with Justice O’Connor) pointed out that theLukumi case was “an easy one to decide.” 110 As the Court concluded,the “ordinances by their own terms target [Santeria] religiousexercise” 111 and “it is only conduct motivated by religiousconviction that bears the weight of the governmental restrictions.”112 In other words, Lukumi involved a form of outright persecution,not merely unconscious prejudice.The Court stated that the “minimum requirement of neutralityis that a law not discriminate on its face.” 113 Although the105. Id.106. See id.107. Am. Friends Serv. Comm. v. Thornburgh, 951 F.2d 957, 961 (9th Cir.1991).108. Id.; Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 701(10th Cir. 1998) (holding that Sherbert is inapplicable in the absence of “asystem of individualized exceptions that give rise to the application of a subjectivetest.”).109. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520, 526-28 (1993).110. Id. at 580 (Blackmun, J., concurring) (“It is only in the rare case thata state or local legislature will enact a law directly burdening religious practiceas such. Because respondent here does single out religion in this way, thepresent case is an easy one to decide.”) (emphasis added).111. Id. at 542.112. Id. at 547 (emphasis added).113. Id. at 533.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 91Court noted the “strong religious connotations” of certain languagereferring to “ritual” and “sacrifice,” textual analysis alonewas a thin reed upon which to build a case for a religion-specificclassification. 114 Declaring that “the effect of a law in its real operationis strong evidence of its object,” 115 the Court plunged intothe circumstances surrounding the enactments and their functionaleffect to infer invidious motivation. 116 The willingness of theCourt in Lukumi to go beyond purely textual analysis sheds somelight on the meaning of the neutrality requirement: facial discriminationis a sufficient but not a necessary condition for applicationof strict scrutiny. Although the Court conflates the twinSmith requirements to a considerable degree in Lukumi, 117 neutralityseems to entail textual analysis as well as substantive reviewto ferret out animus, with particular attention directed at theoverinclusive attributes of a given classification. 118 Gleaning fromthe “events preceding their enactment” that “the ordinances wereenacted ‘because of,’ not merely ‘in spite of,’ their suppression ofSanteria religious practice,” the Court deduced that they were“not neutral.” 119Lukumi suggests the general applicability test is really one of“fit” between legislative means and ends. The Court revealed thediscordant relationship between the classifications drawn by theordinances and their purported objectives:[The city] claims that [the ordinances] . . . advance two114. Id. at 533-34.115. Id. at 535.116. Id. at 534-35 (“The record in this case compels the conclusion thatsuppression of the central element of the Santeria worship service was theobject of the ordinances.”).117. See id. at 531 (“Neutrality and general applicability are interrelated,and . . . failure to satisfy one requirement is a likely indication that the otherhas not been satisfied.”).118. See id. at 542. The Court held:[The]ordinances are not neutral because the ordinances bytheir own terms target this religious exercise; the texts ofthe ordinances were gerrymandered with care to proscribereligious killings of animals but to exclude almost all secularkillings; and the ordinances suppress much more religiousconduct than is necessary in order to achieve thelegitimate ends asserted in their defense.Id. (emphasis added).119. Id. at 540.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM92 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73interests: protecting the public health and preventingcruelty to animals. The ordinances are underinclusive forthose ends. They fail to prohibit nonreligious conduct thatendangers these interests in a similar or greater degreethan Santeria sacrifice does. 120If the general applicability test is essentially a hunt for underinclusiveness,then strict scrutiny is triggered by secular exceptionsthat actually frustrate legislative ends in a roughly commensurateor more deleterious manner when compared to religiouslyinspired conduct that is subject to the law. 121 The ordinances inLukumi exempted secular and kosher slaughter even though suchconduct threatened the asserted interests in public health and inthe prevention of animal cruelty. 122 Santeria animal sacrifice wasanalogous in all relevant respects to the exempted forms of animalslaughter; thus, the Court found sufficient evidence of “discriminatorytreatment” 123 in the apparent devaluation of religious reasonsfor engaging in animal slaughter (or conversely, in theexcessive overvaluation of secular reasons for doing so). Indeed,the ordinances in Lukumi were doubly flawed in terms of fit. Theywere overinclusive as well in proscribing Santeria slaughter “evenwhen it [did] not threaten the city’s interest in the publichealth.” 124The substantially overinclusive and underinclusive attributesof the ordinances, coupled with the traditional practice of judicialminimalism, 125 allowed the Court to duck the more cumbersometask of fine-tuning the general applicability doctrine: “[W]e need120. Id. at 543.121. See Richard F. Duncan, Free Exercise is Dead, Long Live Free Exercise:Smith, Lukumi and the General Applicability Requirement, 3 U. PA. J.CONST. L. 850, 867 (2001).122. Lukumi, 508 U.S. at 536-37.123. Id. at 537-39.124. Id. at 538-39.125. See Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113U.S. 33, 39 (1885).[T]he Court . . . is bound by two rules, to which it has rigidlyadhered: one, never to anticipate a question of constitutionallaw in advance of the necessity of deciding it; theother never to formulate a rule of constitutional law broaderthan is required by the precise facts to which it is to be applied.Id.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 93not define with precision the standard used to evaluate whether aprohibition is of general application, for these ordinances fall wellbelow the minimum standard necessary to protect First Amendmentrights.” 126 Thus, there are essentially two free exercise maximsto take from Lukumi. The first is that the neutrality testcontemplates the use of circumstantial evidence. The second isthat “[l]egislators may not devise mechanisms, overt or disguised,designed to persecute or oppress a religion or its practices.” 127In Lukumi, the distinction drawn between religious and secularanimal slaughter was constitutionally irrelevant, and thereforeinfirm, because these forms of slaughter posed virtually identicalthreats to animal cruelty and public health interests. 128 So, perhapsLukumi reveals that the touchstone of the neutrality andgeneral applicability requirements is that a law must not be underinclusivein exempting certain secular conduct that frustrateslegislative purposes to a comparable or greater degree than wouldan exemption for religious conduct. 129 If this is so, the nondiscriminationrule of Smith presupposes some dissonance betweenthe exceptions and the proffered legislative goals. The LukumiCourt applied strict scrutiny because the myriad nonreligiousexceptions produced an anti-religious gerrymander of “substantial,not inconsequential,” underinclusion. 130 But again, it seemed an“easy case” decided on the narrowest of grounds. However, theLukumi Court did not explain what sorts of underinclusive classificationswere “inconsequential,” nor did it identify a point atwhich underinclusion became consequential enough to becomeconstitutionally problematic.The Lukumi Court was somewhat ambivalent as to whetherthe general applicability requirement extends beyond individualizedexemption systems. The Lukumi Court remarked concerningone of the ordinances: “because it requires an evaluation of theparticular justification for the [animal] killing, this ordinancerepresents a system of ‘individualized governmental assessment ofthe reasons for the relevant conduct.’” 131 On the other hand, only126. Lukumi, 508 U.S. at 543.127. Id. at 547 (emphasis added).128. See id. at 543-45.129. See Beerworth, supra note 19, at 379.130. Id. at 543 (emphasis added).131. Id. at 537 (quoting Employment Div. v. Smith, 494 U.S. 872, 884

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM94 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73one of the four ordinances fit this mold and the Court later stated,“categories of selection are of paramount concern when a law hasthe incidental effect of burdening a religious practice.” 132 Becausethe Court in Lukumi relied on categorical exceptions for fishingwithin the city, for exterminations of mice and rats within thehome, for medical science experiments, and for euthanasia of certainanimals, 133 the neutrality and general applicability requirementsmost likely extend to categorical exemption systems aswell. Indeed, “[w]holesale secular exceptions make the law evenless generally applicable than individualized secular exceptions.”134III. THE THIRD CIRCUIT’S INTERPRETATION OF NEUTRALITY ANDGENERAL APPLICABILITYIn two recent cases, the Third Circuit Court of Appeals has interpretedthe non-persecution principle of Lukumi fairly broadly.In Fraternal Order of Police v. City of Newark, 135 two Islamic policeofficers fulfilled a religious obligation to grow their beards 136and were subsequently reprimanded pursuant to an internal orderprohibiting full beards, goatees, and other facial hair growth asidefrom mustaches and sideburns. 137 The order contained two exceptions:one for undercover officers and another for sufferers ofpseudo folliculitis barbae (PFB), a medical condition endemic toAfrican and Arab-Americans with curly facial hair. 138 PFB occurs,if at all, when shaving sharpens stubble that eventually growsback into the skin; abstention from shaving allows facial hair togrow to lengths at which PFB is no longer possible. 139The Newark Police Department asserted interests in uniformity,discipline and esprit de corps. 140 The undercover officer excep-(1990)).132. Id. at 542 (emphasis added).133. Id. at 543-44.134. Douglas Laycock, The Supreme Court and Religious Liberty, 40CATHOLIC LAW. 25, 32 (2000).135. 170 F.3d 359 (3d Cir. 1999).136. Id. at 360-61 (“The refusal by a Sunni Muslim male who can grow abeard, to wear one is a major sin . . . the penalties will be meted out by Allah.”).137. See id. at 360.138. See id.139. See Lund, supra note 15, at 647.140. See Newark, 170 F.3d at 366.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 95tion to the no-beard policy did not threaten these goals because“undercover officers ‘obviously are not held out to the public as lawenforcement personnel.’” 141 The medical exemption, however, inescapablyjeopardized the “uniform appearance” rationale. “[T]hemedical exemption raises concern,” the Court stated, “because itindicates that the Department has made a value judgment thatsecular (i.e., medical) motivations for wearing a beard are importantenough to overcome its general interest in uniformity butthat religious motivations are not.” 142 The Department attemptedto tie “uniformity of appearance” to the public interest in a “senseof security in having readily identifiable and trusted public servants.”143 The Court summarily rejected this argument, sayingthat “[u]niformed officers, whether bearded or clean-shaven,should be readily identifiable.” 144 But the strength of the stated interestswas beside the point because the religious and medical exemptionsposed similar threats to the proffered objectives of theorder. In other words, the central problem was one of tailoring, notof interest. The secular/religious distinction, because inexplicablein relation to the purpose of the order, appeared to be rooted in adesire “to suppress manifestations of the religious diversity thatthe First Amendment safeguards.” 145 The order’s underinclusivenessin favor of secular conduct was therefore sufficient to triggerheightened scrutiny. 146Newark is a consistent, albeit broad, interpretation of Lukumi.The Court in Newark acknowledged the “individualized exemption”rule implicit in Smith and Lukumi, but noted that theoverarching concern in those cases “was the prospect of the government’sdeciding that secular motivations are more importantthan religious motivations.” 147 The Newark Court went on to reason,“this concern is only further implicated when the governmentdoes not merely create a mechanism for individualized exemptions,but instead, actually creates a categorical exemption for in-141. Id.142. Id.143. Id.144. Id.145. Id. at 367.146. The court applied an intermediate level of scrutiny “since this casearose in the public employment context.” Id. at 366 n.7.147. Id. at 365.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM96 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73dividuals with a secular objection but not for individuals with areligious objection.” 148 Moreover, the no-beard policy did not solelytarget religious conduct by exempting all (or even most) secularmotivations for shaving. Indeed, the single problematic secularexemption was sufficient to invoke the nondiscrimination principleof Smith. Recall the Lukumi Court’s statement that antireligiousgerrymanders “fall well below the minimum standard”laid out in Smith. 149 Newark synthesized Smith and Lukumi in away that highlighted the thrust of general applicability. In distinguishingthe facts in Newark from those in Smith, the Third Circuitopined that Oregon’s medical prescription exception to thedrug prohibition did “not necessarily undermine Oregon’s interestin curbing the unregulated use of dangerous drugs,” 150 whereasthe secular and kosher animal slaughter exceptions in Lukumi –like the PFB exception in Newark – plainly frustrated the respectiveregulatory goals. 151Newark also illuminates the brittle logic upon which Smithrests. 152 For example, the Islamic officers were granted an exemptionfrom the no-beard policy because a medical exemption for theskin condition, PFB, had previously been made. 153 However, themedical exemption would not have existed in the first place hadthe occurrence of PFB in the city been minimal or nonexistent.That is, the religious claimants could not have prevailed had theclimate and demographics of the city in which they were employednot been conducive to the prevalence of PFB. 154 A favorable outcomedepended on the fortuitous existence of some significantsecular burden that prompted the creation of a secular exemption.Had an identical fact-pattern arisen in Alaska or Wisconsin wherePFB is virtually nonexistent, there would have been no secularexemption and, by extension, no victory for religious liberty. 155 Thedepartmental order would have remained generally applicable.148. Id.149. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520, 543 (1993).150. Newark, 170 F.3d at 366.151. See id.152. Lund, supra note 15, at 649.153. Newark, 170 F.3d at 366.154. Lund, supra note 15, at 647-48.155. Id.at 647-49.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 97In Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 156 the ThirdCircuit continued to interpret neutrality and general applicabilityin a relatively expansive manner. Tenafly involved a facially neutraltown ordinance prohibiting “any sign or advertisement, orother matter upon any pole, tree, curbstone, sidewalk or elsewhere,in any public place, excepting such as may be authorizedby this or any other ordinance of the Borough.” 157 In practice,however, the town had “tacitly or expressly granted exemptionsfrom the ordinance’s unyielding language for various secular andreligious – though never Orthodox Jewish – purposes.” 158 By municipalorder, the Orthodox Jewish residents of Tenafly were prohibitedfrom attaching lechis – “thin black strips made of the sameplastic material as, and nearly identical to, the coverings on ordinaryground wires” 159 – to town utility poles. According to ancientreligious practice, lechis demarcate the boundaries of an eruv, aspace within which Sabbath observers may transport objects onYom Kippur or the Sabbath. 160 Without a well-defined eruv, OrthodoxJews who use strollers, wheelchairs, walkers and canes areunable to leave their homes and attend synagogue. 161Reaffirming the Newark doctrine that “government officials. . . contravene the neutrality requirement if they exemptsome secularly motivated conduct but not comparable religiouslymotivated conduct,” the Court invalidated the ordinance. 162From the drab house numbers and lost animal signs tothe more obtrusive holiday displays, church directionalsigns, and orange ribbons . . . the Borough has allowedprivate citizens to affix various materials to its utilitypoles. Apart from their religious nature, the lechis arecomparable to the postings the Borough has left in place.If anything, the lechis are less of a problem because theyare so unobtrusive; even observant Jews are often unable156. 309 F.3d 144 (3d Cir. 2002).157. Id. at 151 (quoting TENAFLY, N.J., ORDINANCE 691 art. VIII § 7(1954)).158. Id. at 167 (emphasis added).159. Id. at 152.160. Id. at 152.161. Id.162. Id. at 165-66.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM98 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73to distinguish them from ordinary utility wires. 163The town contended that the lechis were intended to bepermanent fixtures, but the Court determined that at least the“house numbers nailed to utility poles are intended to be permanent.”164 Thus, the various secular and would-be Orthodox Jewishexceptions frustrated the town’s interest in monolithic, fixturefreeutility poles to at least a comparable degree, thereby implicatingthe nondiscrimination principle. Tenafly is perhaps most notable,however, for its holding that “[u]nder Smith andLukumi . . . there is no substantial burden requirement when governmentdiscriminates against religious conduct,” 165 and concomitantly,that there is no “compulsory” practice requirement. 166 Inother words, the Free Exercise Clause applies with equal force toeven the slightest burden on even an “optional” religious practice,so long as there is a “sincere desire” to engage in that practice. 167As to the suspension of the “substantial burden” requirement,Tenafly is a particularly ambitious exposition of free exercise doctrinebecause the vast majority of federal circuit courts have retainedthe requirement as an indispensable component of theSmith-Lukumi methodology. 168IV. STATE MANDATORY REPORTING LAWS ON CHILD ABUSEAll fifty States have enacted statutes preserving the clergycommunicantprivilege in some form or another. But when newsreports surfaced of Catholic clergy having engaged in and presidedover the sexual abuse of children for decades, public outrage andstrenuous pleas for accountability pervaded the political climate.In the Boston Archdiocese alone, law enforcement officials catalogued789 victims of abuse by Catholic priests and church workersover the last sixty years, and the actual number of victims isestimated to exceed 1,000. 169 As the anti-clerical clamor intensi-163. Id. at 167.164. Id. at 167-68.165. Id. at 170.166. Id. at 171.167. Id.168. See id. at 170-71 & n.31.169. Christopher R. Pudelski, Comment, The Constitutional Fate of MandatoryReporting Statutes and the Clergy-Communicant Privilege in a Post-Smith World, 98 NW. U.L. REV. 703, 712-13 (2004).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 99fied, many state legislatures returned to the drawing boards withan eye toward bringing clergy within the scope of their mandatoryreporting laws. 170 The jurisdictions that have decided to impose ageneral reporting duty on clergy have had to further decidewhether to extend the duty to confidential communications withparishioners, or to retain the clergy-communicant privilege andthereby avoid a direct conflict between God and Caesar.Current mandatory reporting laws address this societal problemvis-à-vis clergy in at least three manners. One approach hasbeen to preserve the clergy-communicant privilege in full, eitherby an explicit privilege-preservation clause, 171 or by omittingclergy members from veritable laundry lists of mandatory reporterswith no catchall clause. 172 A second and widely shared strategyhas been to include clergy in the laundry list of professionals whohave a duty to report. 173 A third approach has been either to omitclergy from a list of reporters and bring them within the purviewof the law through inclusion of an “any person” catchall phrase, orto eschew the laundry-list approach altogether for a sweeping reportingrequirement applicable to “any person.” 174170. See id. at 704.171. See ARK. CODE ANN. § 12-12-507 (Michie 2003); FL. STAT. ANN. §39.204 (West Supp. 2004); IDAHO CODE § 16-1619 (Michie 2001); LA. CHILD.CODE ANN. art. 603 (West 2004); ME. REV. STAT. ANN. tit. 22, § 4011-A (West2004); MD.CODE ANN., FAM. LAW § 5-705 (2003); MINN. STAT. ANN. § 626.556(West 2003 & Supp. 2004); MONT. CODE ANN. § 41-3-201 (2003); N.M. STAT.ANN. § 32A-4-3 (Michie 2004); OR. REV. STAT. § 419B.010 (2003); UTAH CODEANN. § 62A-4a-403 (2000); VT. STAT. ANN. tit. 33 § 4913 (Supp. 2003).172. See ALASKA STAT. § 47.17.020 (Michie 2003); GA. CODE ANN. § 19-7-5(2003); HAW. REV. STAT. § 350-1.1 (2002); IOWA CODE § 232.69 (2002); KAN.STAT. ANN. § 38-1522 (2002); N.Y. SOC. SERV. LAW § 413 (McKinney 2003);OHIO REV. CODE ANN. § 2151.421 (West 2004); S.D. CODIFIED LAWS § 26-8A-3(Michie 2003); VA. CODE ANN. § 63.2-1509 (Michie 2002); WASH. REV. CODE §26-44.030 (West 2004).173. See ARIZ. REV. STAT. § 13-3620 (West 2003); CAL. PENAL CODE §11165.7 (West 2004); COLO. REV. STAT. § 19-3-304 (2003); CONN. GEN. STAT.ANN. § 17A-101 (West 2004); 325 ILL. COMP. STAT. 5/4 (Supp. 2004); MASS.GEN. LAWS ANN. ch. 119, § 51A (West 2003 & Supp. 2004); MICH. COMP. LAWSANN. § 722.623 (West Supp. 2004); MISS. CODE ANN. § 43-21-353 (1999 &Supp. 2003); MO. ANN. STAT. § 210.115 (West 2004); N.D. CENT. CODE § 50-25.1-03 (1999); 23 PA. CONS. STAT. ANN. § 6311 (West 2001 & Supp. 2004);S.C. CODE ANN. § 20-7-510 (LAW. CO-OP. 2002); TEX. FAM. CODE ANN. § 261.101(Vernon 2002).174. See DEL. CODE ANN. tit. 16, § 903 (2003); IND. CODE ANN. § 31-33-5-1(West 1999); KY. REV. STAT. ANN. § 620.030 (Michie 1999); NEB. REV. STAT. §

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM100 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73Concerns of a constitutional magnitude arise in the differentialtreatment of the legal and clerical privileges because some reportinglaws expressly and fully preserve the attorney-clientprivilege while completely or partially abrogating the clergycommunicantprivilege. 175 Complete abrogation of the clergycommunicantprivilege means that both “spiritual advice” and confessionalcommunications are vitiated for purposes of reportingand for purposes of evidentiary admissibility in proceedings involvingallegations of child abuse or neglect. 176 Reporting lawsthat completely abrogate the clergy-communicant privilege, whilefully preserving the attorney-client privilege, represent the apogeeof unequal treatment. Other reporting laws achieve a slightlylower degree of inequality either by (1) completely preserving theattorney-client privilege and only partially preserving the clergycommunicantprivilege, 177 or by (2) partially abrogating the attorney-clientprivilege and completely abrogating the clergycommunicantprivilege. 178 Partial abrogation entails a suspensionof the privilege in either the reporting or evidentiary context.A. North Carolina and TennesseeNorth Carolina’s reporting statute seemingly imposes a generallyapplicable duty to report on “any person or institution whohas cause to suspect that any juvenile is abused, neglected . . . orhas died as the result of maltreatment.” 179 However, a subsequentsection of the statute declares: “No privilege shall be grounds forany person or institution to report . . . even if the knowledge orsuspicion is acquired in an official professional capacity, exceptwhen the knowledge or suspicion is gained by an attorney from28-711 (1995); NEV. REV. STAT. ANN. 202.882 (Michie 2001); N.J. STAT. ANN. §9:6-8.10 (West 2002); OKLA. STAT. ANN. tit. 10, § 7103 (West 2004); TENN.CODE ANN. § 37-1-403 (2001); WIS. STAT. § 48.981 (West 2003); WYO. STAT.ANN. § 14-3-205 (Michie 2003).175. See N.C. GEN. STAT. § 7B-310 (2003); N.H. REV. STAT. ANN. § 169-C:32(2001); R.I. GEN. LAWS § 40-11-11 (1997); TENN. CODE ANN. § 37-1-614 (2003);W. VA. CODE ANN. § 49-6A-7 (Michie 2001).176. See Norman Abrams, Addressing the Tension Between the Clergy-Communicant Privilege and the Duty to Report Child Abuse in State Statutes,44 B.C. L. REV. 1127, 1149-50 (2003).177. See, e.g., § 325 ILL. COMP. STAT. ANN. 5/4 (2004); ALA. CODE § 26-14-10(2004).178. See, e.g., TEX. FAM. CODE § 261.202 (Vernon 2002).179. N.C. GEN. STAT. § 7B-301 (2004).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 101that attorney’s client.” 180 The statute further provides that “[n]oprivilege, except the attorney-client privilege, shall be grounds forexcluding evidence of abuse, neglect, or dependency in any judicialproceeding.” 181The Tennessee reporting statute also includes a catchall provisionrequiring “any person” with knowledge or suspicion of childabuse to report such information to state authorities. 182 Moreover,the Tennessee reporting law unambiguously abolishes the clergycommunicantprivilege by voiding the privileged quality of communicationbetween any professional person and his client, and“any other privileged communication except that between attorneyand client” for reporting and evidentiary purposes. 183 Thus, bothNorth Carolina and Tennessee have achieved complete abrogationof the clergy-communicant privilege on the one hand, and completepreservation of the attorney-client privilege on the other.B. Rhode Island, New Hampshire and West VirginiaRhode Island has opted for a catchall clause in order to bringclergy within the purview of the reporting duty. 184 It has completelyvitiated the privileged quality of communications between“any professional person and his or her patient or client, exceptthat between attorney and client.” 185 New Hampshire specificallylists any “priest, minister, or rabbi” 186 as mandated reporters andsuspends, for reporting and evidentiary purposes, all professionalprivileges “except that between attorney and client.” 187 West Virginiaincludes clergy in an exhaustive list of mandated reportersthat does not include attorneys. 188 A subsequent provision of thestatute eviscerates the “privileged quality of communications . . .between any professional person and his patient or his client, exceptthat between attorney and client.” 189 Due to shoddy drafting,it is more difficult to determine the extent to which West Virginia180. Id. § 7B-310.181. Id.182. TENN. CODE ANN. § 37-1-605(a) (2001).183. Id. § 37-1-614 (2001).184. See R.I. GEN. LAWS § 40-11-3 (2004).185. Id. § 40-11-11.186. N.H. REV. STAT. ANN. § 169-C:29 (2003).187. Id. § 169-C:32 (2003).188. W. VA. CODE § 49-6A-2 (2003).189. Id. § 49-6A-7.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM102 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73has suspended the clergy-communicant privilege. The statute declaresabrogation “in situations involving suspected or knownchild abuse and neglect.” 190 This language is certainly broadenough to encompass both the reporting duty and issues of evidentiaryadmissibility in proceedings related to child abuse, but itsnotable lack of specificity renders its scope ambiguous.Rhode Island, New Hampshire and West Virginia have preservedthe attorney-client privilege and abolished all other privilegesbetween “any professional person and his or her patient orclient.” If construed narrowly, the clergy-communicant privilegemight survive such abrogation clauses. On the other hand, thesestatutes obligate clergy to report information relating to childabuse, and they do so in the absence of either a partial or completeprivilege-preservation clause. Although susceptible to more thanone interpretation, these laws may be properly interpreted ascompletely eviscerating the clergy-communicant privilege. 191C. Alabama, Illinois and TexasLike many other states, Alabama designates “members of theclergy” 192 as mandated reporters along with a host of secularagents such as physicians, dentists, school teachers and officials,law enforcement officials, pharmacists, social workers, day careworkers, mental health professionals and “any other person calledupon to render aid or medical assistance to any child.” 193 Attorneysare not listed and do not seem to be implicated by the profession-specificcatchall clause. The Alabama statute thereafterproclaims: “The doctrine of privileged communication, with the exceptionof the attorney-client privilege, shall not be ground for excludingany evidence regarding a child’s injuries or the causethereof in any judicial proceeding.” 194 The statute does, however,exempt members of the clergy from the reporting duty insofar asthe relevant information is “gained solely in a confidential com-190. Id.191. See Abrams, supra note 176, at 1140; see also Shawn P. Bailey, Note,How Secrets are Kept: Viewing the Current Clergy-Penitent Privilege Througha Comparison with the Attorney-Client Privilege, 2002 B.Y.U. L. REV. 489, 499(2002).192. ALA. CODE § 26-14-3(a) (2004).193. Id.194. Id. § 26-14-10.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 103munication.” 195 By fully preserving the attorney-client privilegeand only partially abrogating the clergy-communicant privilege,Alabama has settled for a slightly smaller quantum of differentialtreatment.Like Alabama, Illinois has preserved the attorney-client privilegein its entirety while chipping away considerably at the clergycommunicantprivilege. A shrewdly worded section suspends the“privileged quality of communication between any professionalperson required to report and his patient or client” with respect tothe reporting duty. 196 The statute designates “any member of theclergy” as a reporter but omits any reference to attorneys. 197 Althoughthe evidentiary dimension of the clergy-communicantprivilege remains intact, 198 attorneys are free to use their professionalprivilege as a shield against the reporting duty and theadmissibility of evidence in court proceedings.The Texas scheme explicitly cancels both the attorney-clientand clergy-communicant privilege with respect to the reportingduty. 199 However, it also states “evidence may not be excluded onthe ground of privileged communication except in the case ofcommunications between an attorney and client.” 200 Thus, Texashas opted for full abrogation of the clergy-communicant privilegeand only partial abrogation of the attorney-client privilege.Though all of the foregoing reporting laws vary in language, structureand degree of differential treatment, none seem to satisfyeven the baseline requirement of facial neutrality as defined inSmith and Lukumi.It is beyond all doubt that reporting laws exist for the purposeof detecting and eradicating child abuse. Nevertheless, severalstatutes contain prefatory clauses in which governmental interests,moral truisms and policy aims are specifically cataloged. Forexample, Kentucky’s statute proclaims:Children have certain fundamental rights which must beprotected and preserved, including but not limited to, therights to adequate food, clothing and shelter; the right to195. Id. § 26-14-3(f).196. § 325 ILL. COMP. STAT. ANN. 5/4 (West 2004) (emphasis added).197. Id.198. Id.199. TEX. FAM. CODE § 261.101(c) (Vernon 2004).200. Id. § 261.202.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM104 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73be free from physical, sexual or emotional injury orexploitation; the right to develop physically, mentally,and emotionally to their potential; and the right to educationalinstruction and the right to a secure, stablefamily. 201The protection of children from physical harm or death is indubitablyan interest of the highest order in our society. Basicrights of self-preservation, personal security and individualautonomy comprise the core justification for the very existence ofa social contract. 202 But the admittedly “compelling” nature of thegovernmental interest in preventing child abuse is really inappositehere. Rather, the determinative inquiry is whether lawmakershave decided that legal counselors are so prized as to overcome theimperative of protecting children whereas similarly situated spiritualcounselors are not. The constitutionality of mandatory report-201. K.Y. REV. STAT. ANN. § 620.010 (Michie 2002).202. See, e.g., U.S. CONST. PREAMBLE:We the People of the United States, in Order to form a moreperfect Union, establish domestic Tranquility, provide for thecommon defense, promote the general Welfare, and secure theBlessings of Liberty to ourselves and our Posterity, do ordainand establish this Constitution for the United States ofAmerica.Id. (emphasis added); see also THOMAS HOBBES, LEVIATHAN, reprinted inMODERN POLITICAL THOUGHT: READINGS FROM MACHIAVELLI TO NIETZSCHE 189(David Wootton ed., 1996):A commonwealth is said to be instituted, when a multitude ofmen do agree, and covenant, every one, with every one, thatwhatsoever man, or assembly of men, shall be given by the majorpart, the right to present the person of them all, (that is tosay, to be their representative) every one, as well he that votedfor it, as he that voted against it, shall authorize all the actionsand judgments, of that man, or assembly of men, in the samemanner, as if they were his own, to the end, to live peaceablyamongst themselves, and be protected against other men.Id.; JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, reprinted in, MODERNPOLITICAL THOUGHT: READINGS FROM MACHIAVELLI TO NIETZSCHE 341 (DavidWootton ed., 1996):The only way, whereby any one divests himself of his naturalliberty, and puts on the bonds of civil society, is by agreeingwith other men to join and unite into a community, for theircomfortable, safe, peaceable living one amongst another, in asecure enjoyment of their properties, and a greater securityagainst any, that are not of it.Id.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 105ing laws should turn on whether they are “narrowly tailored” toadvance their laudable goals. In order to sharpen this analysis, itis important first to briefly compare the attorney-client andclergy-communicant privileges.D. The Clergy-Communicant PrivilegeAll fifty states have secured some form of clergy-communicantprivilege through statutory law. 203 These privilege statutes aredriven primarily by a respect for free exercise and church autonomyprinciples. 204 Although only the Roman Catholic, Lutheran,Latter-day Saints and Eastern Orthodox churches recognize theformal sacrament of confession, 205 many statutes protect not only“penitential” communications but also “counseling” or “spiritualadvice” communications, which include any confidential communicationmade by the communicant to a clergy member in his capacityas a spiritual advisor. 206 Moreover, the majority of statutesprovide that the privilege survives the death of the communicant.207It is noteworthy that the religious profundity of maintaining ascrupulous code of confidentiality is considerably greater for theCatholic priest than for the Presbyterian minister. If the ministerreveals a communication imparted to him in confidence, he mayinvite the ire of his congregation and forfeit his ministerial positionwithin a particular community of faith. 208 The CatholicChurch, on the other hand, has unwaveringly treated the confessionalrelationship as sacrosanct. 209 Indeed, the Sacrament of Reconciliationis one of the seven sacramental pillars of the Catholic203. Supra Part IV.204. Bailey, supra note 191, at 519-20.205. See id. at 502; R. Michael Cassidy, Sharing Sacred Secrets: Is it (Past)Time for a Dangerous Person Exception to the Clergy-Penitent Privilege, 44WM. & MARY L. REV. 1627, 1641 (2003).206. J. Michael Keel, Comment, Law and Religion Collide Again: ThePriest-Penitent Privilege in Child Abuse Reporting Cases, 28 CUMB. L. REV.681, 689 (1998) (“[M]any of the statutes broaden the scope of the privilegedcommunications between the priest and the penitent by extending the privilegeto communications made to a minister during a counseling session.”).207. See Cassidy, supra note 205, at 1639.208. See Shannon O’Malley, Note, At All Costs: Mandatory Child AbuseReporting Statutes and the Clergy-Communicant Privilege, 21 REV. LITIG.701, 711 (2002).209. See id. at 712.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM106 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73Church; it “relieves the burden of individual sinfulness and drawsone closer to the life and mission of the Church – the mysticalbody of Christ.” 210 As admonished by ancient Canon Law:Let the priest be absolutely aware that he does not byword or sign or by any manner whatsoever in any way betraythe sinner. . . . For whoever shall dare to reveal a sindisclosed to him in the tribunal of penance we decree thathe shall be not only deposed from the priestly office, butthat he shall also be sent into the confinement of a monasteryto do perpetual penance. 211Mandatory reporting laws that abrogate spiritual codes ofconfidentiality clearly implicate free exercise rights. Presently, theCode of Canon Law of the Catholic Church states: “The sacramentalseal is inviolable; accordingly, it is absolutely wrong for a confessorin any way to betray a penitent, for any reason whatsoever,whether by word or in any other fashion.” 212 According to thisspiritual law, “the priest has no mortal remembrance of what hasbeen confessed, but rather possesses knowledge meant solely forGod’s ears.” 213 Violation of the seal is a “crime” against the Churchand a sin against God, and the penalty prescribed in most cases isautomatic excommunication – a permanent alienation from theChurch and from God Himself. 214 Because reporting laws essentiallyrender certain spiritual and civil obligations mutually antagonistic,they constitute a discernible burden on churchautonomy and religious exercise. 215The evidentiary privilege has roots in utilitarian legal thoughtthat justifies nondisclosure on the grounds that confidential communicationbetween clergy and communicant is crucial to the210. See Anthony Merlino, Comment, Tightening the Seal: Protecting theCatholic Confessional from Unprotective Priest-Penitent Privileges, 32 SETONHALL L. REV. 655, 695 (2002).211. R.S. Nolan, The Law of the Seal of Confession, in 13 THE CATHOLICENCYCLOPEDIA 649 (Charles G. Herbermann et al. eds., 1912).212. 1983 CODEX IURIS CANONICI c.983, 1, 2.213. See Merlino, supra note 210, at 746-47.214. Id. at 703-04.215. See Keel, supra note 206, at 702-703 (“[T]he clergyman . . . could adhereto his religious beliefs and accept the criminal penalties levied againsthim, or he could obey the law by turning his back upon his religious convictions.This choice essentially pressures the clergyman to forego his religion tocomply with government mandates.”).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 107maintenance of an important and socially desirable relationship.With respect to the fiduciary relationship between clergy andcommunicant, “the injury that would inure to the relation by thedisclosure of the communications [is] greater than the benefitthereby gained for the correct disposal of litigation.” 216 The costbenefitbalance is struck in favor of preserving the privilege “becausethe cost of a privilege (measured in undiscoverable evidence)would not properly include information that would not exist butfor that privilege.” 217 Because it is widely believed that the confidentialityguarantee facilitates the communicant’s admissions, thecost side of the equation must include only volunteered information,or information that would likely have been relayed to clergyin the absence of the privilege. 218 Outside the reporting context,countervailing societal (and constitutional) considerations haveoutweighed interests in the availability of evidence and the “truth”seeking function of the accusatorial system.The privilege is also invaluable to the communicant. RomanCatholics must make a full confession at least once annually. 219Christian eschatology holds that failure to obtain absolution or dopenance for one’s sins before death is met with the prospect ofeternal damnation. 220 Thus, the Sacrament of Penance is valuedboth for its inherent sanctity and for its edifying effect on thepenitent. Cardinal Bevilacqua has explained that, “[w]ere the Sacramentrendered difficult or odious to the faithful they would bedeterred from approaching it, thereby undermining the Sacramentitself to the great spiritual harm of the faithful, as well as to theentire Church.” 221 Even in denominations that do not recognizesacramental confessions, the maintenance of a private clergypenitentrelationship is integral to one’s eternal salvation. C.S.216. 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2285(John T. McNaughton ed. 1961).217. Bailey, supra note 191, at 505.218. Id.219. CATECHISM OF THE CATHOLIC CHURCH § 1457 (Doubleday, 1995).220. E.g., Matthew, 3:11-12 (“I baptize you with water for repentance, butthe one who is more powerful than I is coming after me. . . . His winnowingfork is in his hand, and he will gather his wheat into the granary. But thechaff he will burn with an unquenchable fire.”).221. Cardinal Anthony Bevilacqua, Confidentiality Obligation of Clergyfrom the Perspective of Roman Catholic Priests, 29 LOY. L. A. L. REV. 1733,1736 (1996).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM108 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73Lewis, the great scholar, writer, and Christian apologist, definedthe “clergy” as “those particular people within the whole Churchwho have been specially trained and set aside to look after whatconcerns us as creatures who are going to live forever.” 222 If oneaccepts Lewis’ foundational premise that we are eternal creatures,it is difficult to imagine any relationship in the temporal worldthat would be of greater importance than that between a spiritualcounselor and his communicant.E. The Attorney-Client PrivilegeUnlike the statutorily protected clergy-communicant privilege,the attorney-client privilege has common-law origins. 223 Otherwise,the two privileges are very similar. Like the clergycommunicantprivilege, confidentiality is “essential” to the maintenanceof the attorney-client relationship. 224 It is difficult toimagine that a client would reveal criminal wrongdoings in theabsence of the privilege, so “the loss of evidence is more apparentthan real.” 225 Moreover, abrogation of the privilege would have achilling effect on communication because attorneys would informtheir clients of an abuse-exception, thereby undermining the goalof full and candid disclosure. 226The efficacious operation of the American legal system is saidto depend on “sound legal advice or advocacy” which, in turn, “dependsupon the lawyer’s being fully informed by the client.” 227 Likemany clergy-communicant privilege statutes, the Federal Rules ofEvidence assure the posthumous application of the attorney-clientprivilege because “full and frank communication . . . promote[s]broader public interests in the observance of law and the administrationof justice.” 228 Furthermore, just as the clergy-222. C.S. LEWIS, MERE CHRISTIANITY 75 (1952) (Fontana Books, 1960).223. See Bailey, supra note 191, at 509.224. WIGMORE, supra note 216, at § 2285.225. Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998) (“[T]heloss of evidence admittedly caused by the privilege is justified in part by thefact that without the privilege, the client may not have made such communicationsin the first place.”).226. See Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42DUKE L.J. 203, 230-32 (1992).227. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).228. Swidler & Berlin, 524 U.S. at 403 (citation omitted).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 109communicant privilege is buttressed by concerns for churchautonomy, rights-based justifications of the attorney-client privilegestrongly discourage interference with client autonomy andcontrol over private information. 229 Perhaps most importantly, theprivilege is afforded a measure of constitutional protection as aprerequisite to the exercise of the Sixth Amendment right to theeffective assistance of counsel. 230 Thus, like the clergycommunicantprivilege, the attorney-client privilege implicates interestsof a constitutional caliber.However, there is one significant distinction between thesetwo evidentiary privileges: the attorney-client privilege contains a“crime-fraud exception” where “the client’s purpose is the furtheranceof a future intended crime or fraud.” 231 In order to fall withinthe exception, however, the client must attempt to use the attorney’sexpertise for some prospective criminal or fraudulent act. 232The clergy-communicant privilege, on the other hand, does notcontain such an exception as it is generally held to be absolute incoverage. 233 Privilege statutes would presumably respect the uncompromisingtenor of canon law in even the most compelling exigencies.F. A Modest Proposal for Protecting ReligionSmith and Lukumi may be regarded as poles on each end ofthe largely uncharted spectrum of general applicability. On oneend, Smith suggests that the mere existence of a single nonreligiousexception does not implicate the nondiscrimination principle.234 On the other end, Lukumi intimates that the existence of229. See Mosteller, supra note 226, at 266.230. See id. at 270-71.231. CHARLES TILFORD MCCORMICK, MCCORMICK ON EVIDENCE § 95 (JohnW. Strong et. al. eds., 4th ed. 1992).232. See Mosteller, supra note 226, at 246.233. See Merlino, supra note 210, at 748 (“In short, the Catholic Churchdefends sacramental confession with absolutism that is foreign to and in directconflict with state laws that are quite stingy in privileging certain communicationsin order to further the truth-seeking function of legaltribunals.”).234. The Oregon controlled substance statute provided an exemption forsubstances “prescribed by a medical practitioner.” Employment Div. v. Smith,494 U.S. 872, 874 (1990). Nonetheless, the Court refused to provide an exemptionfor the religious use of peyote. Id. at 888-90.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM110 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73myriad nonreligious exceptions does implicate the nondiscriminationprinciple. 235 If the creation of the neutrality and general applicabilityrequirements inaugurated no more than ajurisprudence of exemption head-counting, then the task of identifyingthe point at which a law becomes sufficiently discriminatorywould be susceptible of arbitrary line-drawing. As Newark illustrates,there is good reason to conclude that the doctrinal analysesof Smith and Lukumi do not turn on the quantity of exceptionsalone, provided that a law is not entirely exceptionless. Rather,the Third Circuit’s decision in Newark characterizes these seminaldecisions as encapsulating the more substantive inquiry ofwhether there is a (1) nonreligious (or secular) exception that (2)damages the governmental interest in the challenged law in a waythat is (3) similar to or greater than some analogous religious activitythat is prohibited. 236The facially discriminatory character of the foregoing reportinglaws obviates a survey of circumstantial evidence, even thoughtheir legislative histories may very well reveal visceral policyjudgments lurking behind the statutory language. Violation of thegeneral applicability requirement flows automatically from a violationof facial neutrality. The classic gerrymander could conceivablyfail the former test and satisfy the latter, but no law thatis non-neutral on its face can possibly function neutrally in practice.237 Reporting laws that abrogate the clergy-communicantprivilege and preserve the attorney-client privilege are problematicunder a broad formulation of Lukumi because they prohibitcertain religious conduct but do not pursue the objective of protectingchildren with respect to virtually identical nonreligiousconduct.The proposition that attorneys may conceal crucial informationwith impunity establishes an exception inimical to the governmentalinterest in protecting children. Moreover, the onlyrelevant difference between the attorney-client and clergycommunicantprivileges as they relate to the governmental interestis that the former does not protect communications of intent to235. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520, 536-37 (1993).236. See Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365-66(3rd Cir. 1999).237. Lukumi, 508 U.S. at 558 (Scalia, J., concurring).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 111commit a future criminal act, whereas the latter admits of no suchexception. 238 However, the client must actually intend to enlistlawyerly acumen in the pursuit of such an act for the communicationto lose its privileged status. 239 Though perhaps foreseeable,the scenario of a client using legal advice as a tool for inflicting afuture act of violence upon a child seems highly improbable. Andeven if such attempts occurred with alarming frequency, the governmentalinterests could be achieved by a narrower means thatburden clergy members to a far lesser degree. For example, an explicitstatutory retention of a qualified clergy-communicant privilege– one that contains a similar “dangerous person” exception –would satisfy the “narrow tailoring” prong of strict scrutinyanalysis. 240In light of the governmental objectives to ensure the “healthand welfare” of children and to “make the home safe for childrenby enhancing the parental capacity for good child care,” 241 the onlyother relevant difference between spiritual and legal counselors inthis context actually supports the retention of the clergycommunicantprivilege:While the attorney will address the client’s legal concerns,the member of the clergy will address the moral orspiritual well-being of the penitent. Although the attorneywill facilitate an efficient and fair disposition of anylegal problems, she is not likely to concern herself withthe underlying causes of the behavior that made legalrepresentation necessary in the first place. In contrast,the cleric specifically addresses the underlying causes to238. See Michael J. Mazza, Note, Should Clergy Hold the Priest-PenitentPrivilege, 82 MARQ. L. REV. 171, 186 (1998) (“The priest-penitent privilege hasgenerally been considered absolute, prohibiting any revelation of the protectedcommunication, unlike the other evidentiary privileges with their numerousexceptions.”).239. MCCORMICK, supra note 231, at § 95 (“[I]t is settled under modern authoritythat the privilege does not extend to communications between attorneyand client where the client’s purpose is the furtherance of a futureintended crime or fraud.”).240. See generally Cassidy, supra note 205, at 1696-97 (arguing thatmembers of the clergy should be required to disclose information of a penitent’sintention to commit a future crime involving serious bodily injury ordeath).241. CONN. GEN. STAT. § 17a-101 (2003).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM112 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73help the penitent overcome them. 242The penitent is encouraged to mitigate the harm caused byhis transgressions, which may include the return of stolen items,compensation (monetary or otherwise) for injuries, or an admissionof culpability to the proper authorities. In sum, the confessionalrelationship “promotes the reparation and atonement thelegal system seeks to achieve on behalf of society.” 243 In comparison,attorneys work zealously and indefatigably to rid their clientsof legal encumbrances, whereas clergy members strive to inculcatemoral virtue and transform the penitent into a spiritually rejuvenatedand law-abiding citizen. Rather than impede the disclosure,detection and punishment of child abuse, a robust clergycommunicantprivilege may actually effectuate these ends.Discriminatory reporting laws are not teeming with perniciousdesires to persecute members of the clergy. The underinclusionof these statutes is not as substantial as in Lukumi becausethe burden falls not only on religious, but countless other secularentities as well. These laws are more likely the result of a semiconsciousdevaluation of religion – a subtle yet persistent proclivitythat must be exposed and uprooted. 244 Justice Kennedy has astutelyobserved:Prejudice, we are beginning to understand, rises notfrom malice or hostile animus alone. It may result as wellfrom insensitivity caused by simple want of careful, rationalreflection or from some instinctive mechanism toguard against people who appear to be different in somerespects from ourselves. 245The disparities in treatment may be partly explained by thefact that many legislators are attorneys who naturally (albeitwrongly) tend to value the attorney-client privilege more than theclergy-communicant privilege. Legislators may simply fold underconstituent pressure to suspend evidentiary privileges and decide,amid cacophonous criticism, to strike the political bargain in favor242. Bailey, supra note 191, at 511.243. See Merlino, supra note 210, at 743 (emphasis added).244. See Beerworth, supra note 19, at 383.245. Bd. of Trustees v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,concurring).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 113of their own profession. 246 At a time when public sentiment towardclerical personnel is less than favorable, lawmakers stand to winpopularity points by simply tossing out the clergy-communicantprivilege altogether rather than retaining or qualifying it.The Third Circuit in Newark applied the non-discriminationprinciple of Lukumi beyond the extreme instance in which lawmakersdecide to inflict particularized harm on a discrete and insularreligious minority. 247 If the cornerstone of refurbished freeexercise doctrine is underinclusion, then some reporting laws donot pass constitutional muster. In fact, the very presence of the attorney-clientprivilege exception renders the law unconstitutionalper se, because an exception that is patently inconsistent with thelegislative purpose compels a finding that the law could be morenarrowly tailored to further that purpose. 248 There is more thanone way to comply with Smith and Lukumi in the reporting context.A state could either remove the secular exception entirely(making the statute generally applicable), or allow an equivalentexception for religiously motivated conduct (removing the free exerciseburden altogether). Even a reporting law that exempts onlythe clergy-communicant privilege would not likely present EstablishmentClause problems, 249 particularly if the privilege wouldenable religious organizations to define and carry out their owndoctrine free from governmental interference. 250The overall tenor of the Lukumi opinion gives proponents of amore expansive Free Exercise Clause reason to hold out somehope. 251 On the other hand, Lukumi could be confined to those246. See Bailey, supra note 191, at 522-23.247. See Fraternal Order of Police v. City of Newark, 170 F.3d 359, 360(3rd Cir. 1999).248. See Lukumi, 508 U.S. at 546 (finding that the fact that the “profferedobjectives are not pursued with respect to analogous nonreligious conduct. . . suffices to establish the invalidity of the ordinances.”).249. See Corp. of the Presiding Bishop of the Church of Jesus Christ ofLatter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (rejecting an EstablishmentClause challenge to a Title VII exemption for religious organizationsand stating that “[w]here . . . government acts with the proper purpose of liftinga regulation that burdens the exercise of religion, we see no reason to requirethat the exemption come packaged with benefits to secular entities.”).250. See id. at 339.251. Lukumi, 508 U.S. at 547 (“The Free Exercise Clause commits governmentitself to religious tolerance, and upon even slight suspicion that proposalsfor state intervention stem from animosity to religion or distrust of its

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM114 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73rare instances in which lawmakers engage in extreme undervaluationor persecution of religion. 252 Even assuming, arguendo,that strict scrutiny applies not only to underinclusive individualizedexemption systems but also to “categories of selection,” seriousconcerns abound. 253 It is uncertain how the Court wouldwrestle with legislation like mandatory reporting statutes thatcontain far fewer and more principled secular exceptions. 254 Despitethe disparate treatment in such laws, they contain only oneexception that is amply supported in common law, constitutionallaw, and public policy.If the Court rejects the Tenafly reasoning and reaffirms eithera “substantial burden” or “compulsory” practice requirement (orboth), many non-Catholic clergy members may not successfullyassert free exercise challenges despite serious problems of underinclusion.Recall that most clergy-communicant privilege statutesprotect “spiritual advice” communications so as to extend the confidentialityguarantee to all religions. 255 The Catholic priest mustpractices, all officials must pause to remember their own high duty to theConstitution and to the rights it secures.”).252. Locke v. Davey, 540 U.S. ____; 124 S. Ct. 1307, 1314-15 (2004) (distinguishingthe suppression of Santeria worship in Lukumi from the decisionof state officials to deny funding under a state scholarship program to a studentseeking a degree in “devotional theology”); see also Davey v. Locke, 299F.3d 748, 762 (9th Cir. 2002). The dissent in that opinion stated:[In Lukumi], the challenged ordinances were the rare butquintessential example of laws that directly prohibit certainreligious practices . . . Nothing could have more clearlyprohibited the church members’ religious exercise thanthese criminal sanctions: their choice was to practice theirreligion upon threat of persecution. In contrast, Davey’sdecision to pursue a degree in theology carries no suchominous retribution . . . I do not find any guidance inLukumi beyond the criminal ordinances at issue there as towhat might constitute an impermissibly burdensome lawprohibiting religious exercise.Id. (McKeown, J., dissenting).253. Lukumi, 508 U.S. at 542.254. See Kenneth D. Sansom, Note, Sharing the Burden: Exploring theSpace Between Uniform and Specific Applicability in Current Free ExerciseJurisprudence, 77 TEX. L. REV. 753, 768 (1999).255. See supra note 206 and accompanying text. In contrast, Delaware haspreserved the clergy-communicant privilege only insofar as the communicationtakes place in a “sacramental confession.” DEL. CODE ANN. tit. 16, § 909(2003). Although such a provision raises non-establishment concerns becauseof its limited applicability, this issue is beyond the scope of this article.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 115assiduously conceal confessional communications as a matter ofreligious obligation. On the other hand, to compel disclosure of informationgathered in a spiritual advice setting is not to forceclergy to transgress a tenet of their faith. That is, there is no religiouslyimposed oath to secrecy in the non-sacramental setting, orat least it could be described as less than compulsory. 256 For thesereasons, the burden placed on a large class of clergy may not bedeemed “substantial.” Unless Tenafly is followed in this regard, aconstitutional challenge to reporting laws will be difficult tomount successfully for those religions that do not recognize theformal sacrament of confession.V. LOCKE V. DAVEY: ANOMALY OR PRESAGE?This term, the Court altered the Smith/Lukumi calculus,though “the decision may be properly regarded as an unusuallynarrow one.” 257 Locke v. Davey 258 involved a Washington statescholarship program for academically gifted students who attendedeither a public or private (including religiously affiliated)postsecondary institution, provided the institution was duly accredited.259 In accordance with a provision in the state constitutionprohibiting public funding for “any religious worship, exercise orinstruction . . . ,” 260 the scholarship program explicitly excludedany student who sought a “degree in theology.” 261 As a matter offederal constitutional law, it is nearly axiomatic that public financialaid to a student seeking a degree in theology does not violatethe Establishment Clause. 262 Locke, therefore, posed the questionof whether a state, pursuant to its own non-establishment provision,could essentially overprotect its taxpayers’ “freedom of conscience”without running afoul of the federal Free ExerciseClause. 263256. See Abrams, supra note 176, at 1144.257. Beerworth, supra note 19, at 383.258. 540 U.S. ____, 124 S. Ct. 1307 (2004).259. Id. at 1309-10.260. Id. at 1312 n.2 (quoting WASH. CONST. art. I, § 11).261. Id. at 1310.262. See Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481,489 (1986) (upholding against an Establishment Clause challenge a state tuitiongrant for a blind student who planned to use the funds at a Christian collegein preparation for the ministry).263. Locke, 124 S. Ct. at 1312 & n.2.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM116 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73The Ninth Circuit had invalidated the scholarship programunder Lukumi, holding that religion had been facially targeted forunfavorable treatment and that “the State’s own antiestablishmentconcerns were not compelling.” 264 Writing the opinion for themajority in Locke, Chief Justice Rehnquist reversed and declared:“there are some state actions permitted by the EstablishmentClause but not required by the Free Exercise Clause.” 265Rehnquist then plunged into state constitutional history and uncoveredevidence supporting the prerogative of the state to preventthe procurement of tax funds to support ministerialendeavors. 266 As such, the State’s antiestablishment interestswere deemed “historic and substantial.” 267 The Court’s emergingjurisprudential philosophy of permissible accommodation had evidentlycreated the requisite “play in the joints” 268 between the ReligionClauses in which the states could protect nonestablishmentinterests not guaranteed by the federal Establishment Clause.However, one might argue that going above the minimum federalfloor as to the Establishment Clause means going well below theminimum federal floor as to the Free Exercise Clause.Accordingly, then, Locke cabined Lukumi in some potentiallycataclysmic respects. First, the Court refused to attach a presumptionof invalidity to the scholarship program even though theprogram violated the facial neutrality requirement by isolatingthe study of theology for disfavored treatment. The Court reasonedthat application of strict scrutiny was inappropriate becausenothing in the “history or text” of the State Constitution or thescholarship program “suggests animus towards religion.” 269Rather, the disparate treatment at issue in Locke was “of a farmilder kind” than that at issue in Lukumi. 270 The Court justifiedthe religion-specific classification on what seemed like rational basisgrounds, stating that “training for religious professions andtraining for secular professions are not fungible.” 271 Of course,Santeria animal sacrifice and secular modes of butchery are not264. Id. at 1311.265. Id.266. See id. at 1313-14.267. Id. at 1315.268. Id. at 1311.269. Id. at 1315.270. Id. at 1312.271. Id. at 1313.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 117fungible either. They are just very similar. Like the study of historyand the study of religion, the minute differences betweenthese forms of slaughter cannot justify gaping disparities intreatment.Beyond animus, the Court intimated that heightened scrutinyapplies to a law that is not neutral or generally applicable and either:(1) imposes criminal or civil penalties on a religious practice,(2) excludes ministers from participation in the political community,or (3) puts students to a choice between their religious convictionsand the receipt of a government benefit. 272 Apparently, adesire to obtain a degree in theology did not constitute a religiousconviction. The Court also noted the “relatively minor burden”placed on scholars seeking degrees in theology as an additionalreason to avoid the stringent Lukumi test. 273 Fortunately, mandatoryreporting laws remain constitutionally problematic even underLocke inasmuch as they are both facially nonneutral andimpose criminal and civil penalties on a religious sacrament.In a strange twist, Justice Scalia’s dissent in Locke adheredmost faithfully to Lukumi and railed against any further narrowingof the Free Exercise Clause. Applying the baseline requirementof facial neutrality, Scalia asserted that “[n]o field of studybut religion is singled out for disfavor” in this “generally availablepublic benefit.” 274 Far from demanding a “special benefit to whichothers are not entitled,” 275 scholars who sought devotional degreessought “only equal treatment” 276 in the disbursement of a publicbenefit. In contrast with the majority, Scalia asserted that theState had a compelling interest only in avoiding actual EstablishmentClause violations. 277 Since the prospect of such a violationwas nonexistent in these circumstances, the differentialtreatment of religious and secular academic degrees was impermissibleunder Lukumi. Scalia chastised the majority for essentiallylimiting the protections of the Free Exercise Clause to casesinvolving animus toward religion:The Court does not explain why the legislature’s motive272. See id. at 1312-13.273. Id. at 1315.274. Id. at 1316 (Scalia, J., dissenting).275. Id.276. Id.277. See id. at 1318 n.2.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM118 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73matters, and I fail to see why it should . . . It is sufficientthat the citizen’s rights have been infringed . . . We dosometimes look to legislative intent to smoke out moresubtle instances of discrimination, but we do so as a supplementto the core guarantee of facially equal treatment,not as a replacement for it. 278Scalia also scolded the Court for weighing the religious burdenunder laws that fail Smith’s minimum facial neutrality requirement:“[B]eing singled out for special burdens on the basis ofreligious calling is so profound that the concrete harm producedcan never be dismissed as insubstantial. The Court has not requiredproof of ‘substantial’ concrete harm with other forms of [facial]discrimination, and it should not do so here.” 279 In sum, theCourt in Locke suspended the facial neutrality requirement ofSmith, confined Lukumi to animus toward religion and imposed a“substantial burden” requirement even for challenges to faciallydiscriminatory laws (in opposition to Tenafly).Read broadly, Locke not only confines Lukumi to its facts, butalso emasculates the very precedent that supports the nonpersecutionprinciple, at least insofar as facial discrimination triggersheightened scrutiny. 280 On the other hand, Locke can be understoodas merely the latest pronouncement that the Bill of Rightsprotects only negative, rather than positive, liberties. The Courthas recognized that the Free Exercise and Due Process Clausescarve out freedoms from government interference, not entitlementsto government assistance. 281 The Court in Locke alluded to278. Id. at 1319.279. Id. at 1318-19 (citations omitted).280. See McDaniel v. Paty, 435 U.S. 618, 629 (1978) (invalidating a stateconstitutional provision facially disqualifying clergy from sitting in the legislature).281. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S.189 (1989) (holding that the Due Process Clause contains no affirmative rightto governmental assistance, even where such assistance would have preventedthe physical abuse of a child); Lyng v. Northwest Indian CemeteryProtective Ass’n., 485 U.S. 439, 451 (1988) (“the Free Exercise Clause is writtenin terms of what the government cannot do to the individual, not in termsof what the individual can exact from the government.”); Harris v. McRae,448 U.S. 297, 316-17 (1980) (upholding, against a due process and equal protectionchallenge, the denial of federal funding for abortions on the groundsthat “[t]he financial constraints that restrict an indigent woman’s ability toenjoy the full range of constitutionally protected freedom of choice are the

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 119this distinction between negative and positive liberties in its justificationof the exclusionary scholarship program: “The State hasmerely chosen not to fund a distinct category of instruction.” 282Scalia emphasizes the free exercise dimension of exclusionaryeducational aid programs and asserts that, “if the ReligionClauses demand neutrality, we must enforce them, in hard casesas well as easy ones.” 283 The facial neutrality shibboleth thatguided the Court in Smith and Lukumi was suddenly and casuallycast aside in Locke. Perhaps it was the price paid for judicial solicitudeof local “antiestablishment interests” not recognized bythe federal Constitution. 284 At bottom, Scalia and the Locke majoritysharply diverge on the fundamental doctrinal question ofwhether the inclusion of religion in educational aid programs ismerely permissible under the Establishment Clause or mandatoryunder the Free Exercise Clause. The crux of Locke is that the invocationof antiestablishment liberties not protected under the EstablishmentClause trumps liberty interests (namely, the interestin not being singled out for disfavored treatment) otherwise protectedunder the Free Exercise Clause. Even if Locke is readilydistinguishable as an “educational aid” or “positive rights” exceptionto free exercise methodology, its weak characterization of Lukumiportends a further diminution of religious liberty. 285CONCLUSIONIn the post-Smith era, the Free Exercise Clause has beenhailed a “leaner, meaner religious-liberty-protecting machine.” 286Its leanness is readily observable, but its ferocity has yet to betested by the right fact pattern. If, in fact, newly refurbished FreeExercise doctrine has any teeth, States that exempt attorneysfrom mandatory reporting requirements must either provide acorrespondingly protective exemption to clergy or extend the legalduty to attorneys as well as to clergy in an effort to comport withthe apparent mandate of Smith. If the Free Exercise Clause is toproduct not of governmental restrictions on access to abortions, but rather ofher indigency.”).282. Locke, 124 S. Ct. at 1313 (emphasis added).283. Id. at 1317 (Scalia, J., dissenting).284. Id. at 1313.285. See Beerworth, supra note 19, at 384.286. Duncan, supra note 121, at 883.

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM120 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73be of any practical use to the religious citizen, the narrow tailoringanalysis must develop a keen sensitivity to the subtlest devaluationof religion in regulatory schemes.Clerical personnel comprise the engine of many mainstreaminstitutional faiths that boast scores of followers. It would be remiss,however, to assume a priori that clergy have the ability tomarshal veritable armies of parishioners to their side wheneverthe political tide turns unfavorably against them. Recall thatRhode Island has enacted a reporting statute that preserves theattorney-client privilege, yet presumably abolishes the clergycommunicantprivilege in full. If the religious liberties of clergyare insecure in one of the most Catholic states in the nation – astate steeped in the life and thought of Roger Williams, 287 with arich historical legacy of spearheading the national commitment toreligious pluralism 288 – how secure can these liberties be else-287. Having been banished from the Massachusetts Bay Colony in 1635for expressing vehement opposition to a law compelling church attendanceand monetary contribution, Roger Williams fled into a wilderness now knownas Providence. Edward J. Eberle, Roger Williams’ Gift: Religious Freedom inAmerica, 4 ROGER WILLIAMS U. L. REV. 425, 433 (1999). Williams influencedthe governmental structure and principles of the Providence colony andhelped to shape the first legislation in the Western world that safeguardedthe “liberty of conscience” for all believers. PATRICK T. CONLEY, RHODE ISLANDCONSTITUTIONAL DEVELOPMENT, 1636-1775: A SURVEY 7, reprinted fromRHODE ISLAND HISTORY XXVII (April and June, 1968). Under Williams’ influence,“the complete freedom of mind and conscience from all civil bonds” becamethe “actual reason and purpose of the state’s existence.” SANFORD H.COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA: A HISTORY 423 (BurtFranklin 1970) (1902).288. Throughout the eighteenth century, Rhode Island was knownthroughout the New England colonies for its “unsavory reputation for religiousradicalism and libertinism.” THOMAS J. CURRY, THE FIRST FREEDOMS:CHURCH AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 90-91 (1986).Unlike most New England colonies, Rhode Island had no establishedchurch. Id. As such, Rhode Island law required that “all ministers besupported by voluntary contributions.” Id. During the infancy of the Republic,Rhode Island was counted among the few states in which the utmost level ofconstitutional protection for religious conduct was extended to all persons; itbecame one of only three states to grant exemptions from military conscriptionsto Quakers, Mennonites and other groups who voiced religious objectionsto the bearing of arms. See McConnell, supra note 101, at 1468.Additionally, Rhode Island enacted an act in the 1790s, entitled“Relative to Religious Freedom and the Maintenance of Ministers”, declaring:[N]o man shall be compelled to frequent or support any religiousworship, place or ministry whatsoever; nor shall be enforced,restrained, molested, or bothered in his body or goods,

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM2004] MANDATORY REPORTING LAWS 121where? It seems as though reporting laws such as this demonstratethat clergy are no less a religious minority than Santeriaworshippers. As Scalia so poignantly remarked in his Locke dissent:Most citizens of this country identify themselves as professingsome religious belief, but . . . those whose belief intheir religion is so strong that they dedicate their studyand their lives to its ministry are a far narrower set. Oneneed not delve too far into modern popular culture to perceivea trendy disdain for deep religious conviction. 289It is perhaps tempting to take solace in Professor DouglasLaycock’s remark that “[j]ust as it is better to light a candle thanto curse the darkness, so it is better to develop the exceptions thanto curse the adverse holdings.” 290 Application of this treasured adageto free exercise doctrine suggests that a hard-nosed pragmaticstrategy of limiting Smith’s potential breadth is preferable to assailingits core premises outright. The prominence of this view inacademic and juristic circles may be partly explained by the factthat, in the fourteen years since Smith was decided, no solid coalitionon the Court has formed to overrule it. 291 But even if we avertour eyes from the glaring frailties of Smith, there are no ironcladassurances that future doctrinal development will expand, ratherthan severely limit, the narrow exception to the Smith rule as recognizedin Lukumi.However narrow or anomalous Locke may seem, it is a usefultool for those who favor greater restraints on religious liberty.Faced with such ominous uncertainty, perhaps we would do betternor shall otherwise suffer on account of his religious opinionor belief; but that all men shall be free to profess, and by argumentto maintain, their opinions in matters of religion, andthat the same shall in no wise diminish, enlarge or affect theircivil capacities.PATRICK T. CONLEY, DEMOCRACY IN DECLINE: RHODE ISLAND’S CONSTITUTIONALDEVELOPMENT 1776-1841, 173 (1977). One historian has described this statuteas a “vigorous reaffirmation of Rhode Island’s long-standing commitmentto the principles of religious liberty and church-state separation.” Id.289. Locke, 124 S. Ct. at 1320 (Scalia, J., dissenting).290. Laycock, supra note 134, at 57.291. Presently, only Justices O’Connor, Souter, and Breyer have expresseda willingness to seriously reconsider or overrule Smith. City of Boerne v. Flores,521 U.S. 507, 544-45, 565-66 (1997).

BEERWORTH VOL 10 ISSUE 1 PP 73_1221/6/2005 12:51 PM122 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73to heed the poet’s plea and “not go gentle into that good night” butrather “rage, rage against the dying of the light.” 292 Such staunchopposition to Smith may prove more efficacious in restoring theFree Exercise Clause to its rightful function as a palladium –rather than a crumbling colonnade – of religious liberty in ourconstitutional democracy. Despite disagreements over strategy,most agree that Smith painted a jurisprudential picture that depictsa setting sun for a freedom vital to many. A duly broughtfree exercise challenge to discriminatory reporting laws wouldelicit a more definite answer to the critical question of just howdark the canvass will become.292. DYLAN THOMAS, Do Not Go Gentle Into That Good Night, in THECOLLECTED POEMS OF DYLAN THOMAS 128 (New Directions 1971) (1939).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PMRhode Island’s Public ImportanceException for Advisory Opinions:The Unconstitutional Exercise of aNon-Judicial PowerThomas R. Bender *INTRODUCTION“[W]hile [the] unconstitutional exercise of power by the executiveand legislative branches of the government is subject to judicialrestraint, the only check upon [a supreme court’s] exercise ofpower is [its] own sense of self-restraint.” 1 That sense of selfrestraintpromotes “confidence in the men and women who administerthe judicial system [which] is the true backbone of the rule oflaw” 2 – a confidence that is both a “public treasure,” and “a vitallynecessary ingredient of any successful effort to protect basic liberty.”3The Rhode Island State Constitution confers two distinctpowers upon the state’s highest court and the justices appointed toit. The court itself owns a “judicial power,” while the individualjustices are endowed with a separate “advisory power,” permittingthem to render nonbinding legal advice to the two remainingbranches of the state government. This article is concerned withthe advisory power conferred by article 10, section 3 of the Rhode* B.A., University of Rhode Island, 1979; J.D., Washington and Lee UniversitySchool of Law, 1982. Mr. Bender is a partner in the firm of HansonCurran LLP in Providence, RI where he practices appellate litigation.1. United States v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dissenting).2. Bush v. Gore, 531 U.S. 98, 128 (2000) (Stevens, J., dissenting).3. Id. at 157-58 (Breyer, J., dissenting).123

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM124 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123Island Constitution, which declares: “The judges of the supremecourt shall give their written opinion upon any question of lawwhenever requested by the governor or by either house of the generalassembly.” 4 The broad question posed herein is whether thejustices have exercised the necessary “sense of self restraint” indetermining the limits of the advisory power conferred by theState Constitution. The more specific query is whether the justiceshave the constitutional authority, as they reasserted most recentlyin In re Advisory Opinion to the Governor (Casino), 5 to render anadvisory opinion under the “public importance” exception theyhave described. The answer to both questions, it seems clear, isno.The advisory power, unique to only a small handful of states, 6challenges the separation of powers and the independence of thejudiciary. It possesses the potential to empower the legislature toengage the justices in the cause of directing or influencing the executive’sexercise of its constitutional duties, and for the executiveto do likewise with regard to the legislature’s exercise of its ownconstitutional duties. In the 1960’s, the justices met this challenge,however, by narrowly construing the phrase “any questionof law” to limit their obligation to answer questions involving interbranchdisputes. 7 Since that time they have consistently maintainedthat the phrase “any question of law”, when construed inlight of the separation of powers, obliges them to answer questionsfrom the legislature only with respect to proposed or pending legislation,and from the governor only with respect to enacted legislationhe or she has a present constitutional duty to implement. 8In that way the justices may assist both branches in the exerciseof their own constitutional duties, but may not be used by the governorto regulate the legislature when it is considering legislation,or by the legislature to regulate the governor’s execution of thelaws. It is the thesis of this article, however, that the justices’ judicialinterpretation of “any question of law” not only limits theirobligation to answer questions not falling within that interpreta-4. R.I. CONST. art. X, § 3.5. 856 A.2d 320 (R.I. 2004).6. See Pascal F. Calogero, Jr., Advisory Opinions: A Wise Change forLouisiana and its Judiciary?, 38 LOY. L. REV. 329, 336-38 (1992).7. See Opinion to the Governor, 191 A.2d 611, 614 (R.I. 1963).8. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 324.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 125tion, but also necessarily limits their constitutional authority toanswer them.The Rhode Island Constitution is the source of all power devolvingto the judiciary. Article 10, section 3 is the source of thejustice’s authority to render advice. 9 No one would seriously arguethat in the absence of the advisory clause the justices could stepout of their judicial robes and offices, and in their capacity as individualcitizens licensed to practice law, give legal advice and opinionsto the governor or the legislature regarding the legality oftheir actions or legislation. 10 And, in point of fact, they do not purportto do so. The justices consider briefs, take the bench, hear argumentand issue written advisory opinions specifically in theircapacity as judicial officers under the authority of article 10, section3. Consequently, they may only exercise this power if authorizedby that section, and they may only advise on questions towhich the advisory clause pertains. By interpreting the phrase,“shall give their written opinion upon any question of law,” to limitthe questions they are obliged to answer, the justices have alsolimited the questions they are constitutionally authorized to answer.The same separation of powers considerations that limittheir obligation to provide advisory opinions should limit theirconstitutional authority to provide them as well.It seems, however, the justices do not see it that way. In recentyears, they have asserted that the textual interpretation theyhave given to “any question of law” limits only their obligation toprovide advice, and constitutes a mere procedural limitation they9. R.I. CONST. art. X, § 1.10. Aside from the separation of powers issues implicated by a justice, asa member of the Court and an officer of the judicial branch, acting as legalcounsel for either the Governor or General Assembly, the Code of JudicialConduct prohibits a judge from practicing law, R.I. SUP. CT. R. art. VI, canon4(G); conducting his or her “extra-judicial activities” in a manner that would“cast reasonable doubt on the judge’s capacity to act impartially as a judge,”R.I. SUP. CT. R. art. VI, canon 4(A)(1); unnecessarily displaying a “prematurejudgment,” R.I. SUP. CT. R. art. VI, canon 3(B)(5)(iii); and participating in acase where he or she has “served as a lawyer in the manner in controversy.”R.I. SUP. CT. R. art. VI, canon 3(E)(1)(b). In the absence of the advisory clause,the justice would be giving legal advice concerning a matter that could verywell later come before him or her in his or her judicial capacity. Except in thelimited circumstances of the advisory clause, both systemic constitutionalconsiderations and ethical considerations would prohibit a justice of the courtfrom providing legal counsel to either the executive or legislative branches.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM126 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123can waive if the question is of significant public importance. 11 Inshort, the justices have asserted their textual interpretation limitsonly the justices’ obligation, not their authority. I will argue thatthe fashioning of a discretionary “public importance” exception isan internally inconsistent interpretation of both the text of article10, section 3 and the justices’ own prior opinions, and that onevery occasion the justices issue an advisory opinion pursuant tothat exception they act outside their constitutional authority; thatis, they themselves engage in an unconstitutional exercise. I willrespectfully suggest the justices reexamine the constitutional andinterpretative foundation for the public importance exception anddiscard it. No discretionary advisory authority can plausibly issuefrom the constitutional text, and fidelity to both the constitutionand its reasonable judicial interpretation are issues of the greatestpublic importance.This article begins with a brief explanation of the two distinctpowers the Rhode Island Constitution confers on the Rhode IslandSupreme Court and its justices.I. JUDICIAL POWER VS. ADVISORY POWERArticle 10, section 1 of the Rhode Island Constitution states“[t]he judicial power of this state shall be vested in one supremecourt, and in such inferior courts as the general assembly may,from time to time, ordain and establish.” 12 The language is virtuallyidentical to the first sentence of Article III, Section 1 of theUnited States Constitution, 13 but the text of the federal constitutiongoes on to specifically limit the judicial power to cases andcontroversies. 14 Although the Rhode Island Constitution does notexplicitly place a case or controversy limitation on the exercise ofjudicial power, the Rhode Island Supreme Court long ago concludedthe “whole idea of judicial power” is limited to the power to11. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 324-25.12. R.I. CONST. art. X, § 1 (emphasis added).13. U.S. CONST. art. III, § 1 (“The judicial Power of the United States,shall be vested in one supreme Court, and in such inferior Courts as the Congressmay from time to time ordain and establish.”).14. U.S. CONST. art. III, § 2; see Friends of the Earth, Inc. v. LaidlawEnvtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (“The Constitution’s caseor-controversylimitation on federal judicial authority, Art. III, §2, underpinsboth our standing and our mootness jurisprudence.”).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 127apply laws to “cases and controversies” within the court’s jurisdiction.15 In G. & D. Taylor & Co. v. Place 16 , the court stated:Indeed, laws and courts have their origin in the necessityof rules and means to enforce them, to be applied to casesand controversies within their jurisdiction; and our wholeidea of judicial power is, the power of the [courts] to applythe [laws] to the decision of those cases and controversies.17The case or controversy concept defines and limits the properexercise of judicial power, and “is used to embrace a number of relatedbut different problems of judicial authority, including the requirementof a concrete dispute between adversaries, standing,ripeness, mootness and limitations relating to political questions.”18 Standing is the first step in the pathway to a case or controversyempowering a court to act in a judicial capacity. It is notonly “an access barrier that calls for the assessment of one’s credentialsto bring suit;” 19 it is an access barrier calling for an assessmentof the court’s credentials to exercise its constitutionallyconferred judicial power. 20 Standing entitles a party to an adjudicationand empowers the court to adjudicate: “The essence of thequestion of standing is whether a party seeking relief has allegeda personal stake in the outcome of the controversy as to ensureconcrete adverseness that sharpens the presentation of the issuesupon which the court depends for an illumination of the questionspresented.” 21 Under Rhode Island law, standing exists to commencea suit and invoke the judicial power when the claimant al-15. Sullivan v. Chafee, 703 A.2d 748, 752 (R.I. 1997) (citing G. & D. Taylor& Co. v. Place, 4 R.I. 324, 337 (1856)).16. 4 R.I. 324 (1856).17. Id. at 337 (emphasis added). The case or controversy requirementwas more recently reaffirmed in In re Stephanie B., 826 A.2d 985, 999 (R.I.2003): “This Court has previously concluded that ‘our whole idea of judicialpower’ is entailed within the concept of courts applying laws to cases and controversieswithin their jurisdiction.”18. Neely v. Benefits Review Bd., 139 F.3d 276, 279 (1st Cir. 1998) (citingERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.1, at 41 (1989)).19. Associated Builders & Contractors of R.I., Inc. v. Dep’t of Admin., 787A.2d 1179, 1185 (R.I. 2002) (quoting Blackstone Valley Chamber of Commercev. Pub. Utils. Comm’n, 452 A.2d 931, 932 (R.I. 1982)).20. See Blackstone Valley Chamber of Commerce, 452 A.2d at 932.21. Id. at 933.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM128 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123leges “an injury in fact resulting from the challenged act.” 22The related concepts of “standing,” “case or controversy” and“judicial power” are all “built on a single basic idea – the idea ofseparation of powers.” 23 They reflect the “overriding and timehonoredconcern about keeping the judiciary’s power within itsproper constitutional sphere,” and counsel against a court accedingto the natural urge to proceed directly to the merits of importantdisputes and settle them simply for the sake of convenienceand efficiency. 24 The constitutional elements of a court’s authorityto exercise judicial power – such as a case or controversy – “are anessential ingredient of separation and equilibrium of powers, restrainingthe courts from acting at certain times, and even restrainingthem from acting permanently regarding certainsubjects.” 25 In sum, constitutionally conferred judicial power doesnot permit advisory opinions; that is, decisions when there is nocase or controversy presenting an injured party seeking redressfor an injury. Advisory opinions are beyond the “judicial power.” 2622. Pontbraind v. Sundlun, 699 A.2d 856, 862 (R.I. 1997) (quoting R. I.Opthalmological Soc’y v. Cannon, 317 A.2d 124, 129 (R.I. 1974)).23. Raines v. Byrd, 521 U.S. 811, 820 (1997).24. Id.25. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).26. The Rhode Island Supreme Court has relaxed the case or controversyrequirement in the limited circumstances where a case has met the prerequisitesof case or controversy when initiated, but has subsequently been renderedmoot because “events occurring after the filing have deprived thelitigant of a continuing stake in the controversy.” In re Christopher B., 823A.2d 301, 319 (R.I. 2003) (quoting Cicilline v. Almond, 809 A.2d 1101, 1105(R.I. 2000)). In that limited circumstance the court will adjudicate the case –that is, decide it as part of an exercise of its judicial power – despite its mootnesswhen the issues are of “extreme public importance,” “capable of repetition,”but are likely to “evade judicial review.” In re Christopher B., 823 A.2dat 319; see also Fiore v. Town of South Kingstown, 783 A.2d 944, 946 (R.I.2001); State ex. rel. Town of Middletown v. Anthony, 713 A.2d 207, 211 (R.I.1998); Edward A. Sherman Publ’g Co. v. Goldberg, 443 A.2d 1252, 1256 n.6(R.I. 1982); Morris v. D’Amario, 416 A.2d 137, 139 (R.I. 1980).Standing, however, “admits of no similar exception; if a plaintiff lacksstanding at the time the action commences, the fact that the dispute is capableof repetition yet evading review will not entitle the complaint to a [] judicialforum.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S.167, 191 (2000). Mootness and standing are distinct concepts. Where a partyhas no standing a court has no right to exercise the judicial power granted toit and the power does not extend to such a case. Where a case that has fulfilledthe standing requirement has become moot because of post-filing circumstances,to abandon the case may prove more wasteful than frugal, and

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 129Unlike the federal and vast majority of state constitutions, 27the Rhode Island Constitution confers an additional power on themembers of the court distinct from, and not included in, the judicialpower. As previously stated, article 10, section 3 provides:“The judges of the supreme court shall give their written opinionupon any question of law whenever requested by the governor orby either house of the general assembly.” 28 This constitutionalgrant of power has been characterized by the court as a “constitutionalexception to the case and controversy predicate to the exerciseof our judicial power.” 29 In truth, it is not an exceptionpermitting use of the court’s judicial power in the absence of acase or controversy; rather, it bestows a nonjudicial power in theabsence of a case or controversy on each of the individual men andwomen sworn in as justices of that court – the power to render legaladvice to the two remaining branches of government. Whenrendering such advise the justices speak in their “individual capacityas legal experts rather than Supreme Court justices,” 30 andgive non-binding advice which “carries no mandate.” 31 The advisoryopinion is “not an exercise of judicial power,” 32 and is distinctly“extra-judicial.” 33would permit the challenged conduct to recur. See id. at 189, 191-92. Therefore,a court may still plausibly apply its judicial power to the controversy inlimited circumstances.27. Calogero, supra note 6, at 330 (“[N]ot sactioned by the vast majorityof the fifty states or by the federal courts of the United States[, advisory]opinions are currently in use in eleven states.”).28. R.I. Const. art. X, § 3.29. Sullivan v. Chafee, 703 A.2d 748, 572 n.5 (R.I. 1997).30. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320, 323(R.I. 2004).31. Id. (quoting Opinion to the Governor, 174 A.2d 553, 554 (R.I. 1961)).32. In re Advisory Opinion to the Governor (Casino), 856 A.2d at 323(“[T]his opinion is not an exercise of judicial power . . . .”); Opinion to the Governor,174 A.2d at 554 (“not an exercise of our judicial power”).33. Calogero, supra note 6, at 338 (describing advisory opinions as an“extrajudicial exercise of power”); see also ALBERT R. ELLINGWOOD,DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 41-42 n.166 (1918) (notingsupport for the possibility that judges gave “extra-judicial advice” in colonialtimes); STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OFEARLY JUDGES, 2, 47 (1997); Note, Advisory Opinions on the Constitutionalityof Statutes, 69 HARV. L. REV. 1302, 1303 (1956) (“Justices have characterizedthe advisory function as extrajudicial on the theory that they are acting individuallyas men learned in the law . . . .”); Note, The Case for an AdvisoryFunction in the Federal Judiciary, 50 GEO. L.J. 785, 809 (1962) [hereinafter

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM130 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123A. The Origins of the Advisory Power of Rhode Island JusticesThe justices of the Rhode Island Supreme Court have themselvesnoted that many authorities consider the advisory powerincompatible with the judicial function. 34 The separation of powersconsiderations defining and limiting the exercise of judicial poweralso challenge the exercise of the advisory power. 35 How did theadvisory power end up in a constitution ostensibly built on separationof powers and a defined judicial power? A partial explanationmay be found in the English origins of the advisory clause whichseeped into Rhode Island’s colonial and early state governmentalorganization – where there was no separation of powers, no independentjudiciary, and no judicial review as we know it today –and in the struggle to enact a state constitution.The advisory opinion has its roots in English history. “By the14 th century it was a well-established practice of the King’s Bench,a body of legally trained judges, to issue advisory opinions to theKing and his Council” who exercised all three powers of government:legislative, executive, and judicial. 36 While most royal inquiriesconcerned the King’s legislative and executive duties, someinquiries also required advice on matters that were due to comebefore the judges themselves: 37The judges [of the King’s Bench] were also required to actas counselors to the House of Lords, . . . called upon torender their advice when the House acted in either itsjudicial capacity, as final arbiter of cases arising beforeParliament, or in its legislative capacity . . . render[ing]advice on existing law and on pending legislation. 38“In its early history the House of Lords summoned the judgesat the beginning of each Parliament” to give advice on legal questions;the advice was nonbinding but virtually always followed bythe Lords. 39 Up to the time of the American Revolution, “both theNote, Advisory Function] (describing the rendering of an advisory opinion as“a distinctly extrajudicial function”).34. See Opinion to the Governor, 174 A.2d at 554.35. Calogero, supra note 6, at 362.36. Id. at 335.37. Id.38. Id.39. Note, Advisory Function, supra note 33, at 787-88.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 131King and the House of Lords regularly requested advice from thejustices on judicial, as well as executive, and legislative matters.” 40By the middle of the 1600’s, English constitutionalism waspremised on the theory of a “mixed” government, 41 a theory quitedifferent from the principle of separation of powers that would becomethe hallmark of American constitutionalism. The EnglishParliament was composed of the “three estates of the realm –Crown, Lords and Commons – who, together, represent[ed] thesovereignty of the people.” 42 Each were thought to make a valuableand effective contribution to law-making, and “roughly correspondedto Aristotle’s ideal form of ‘mixed government,’ . . . each ofwhich had virtues that would act as a check on the vices of theother.” 43 “Because the entire realm was represented in it, Parliamentwas considered both ‘omnipotent’ and ‘omnicompetent’” 44with its own internal system of checks and balances. 45 In this systemthe highest judicial power was in the House of Lords, not theKing’s judges, and “[t]he Lords were ‘the supreme court of judicaturein the kingdom, both for final appeals from lower courts andas the original court for trials of peers and impeachments.’” 46 Theadvisory power, therefore, arose in the context of a constitutionalsystem that did not separate judicial power from the legislative orexecutive power, and in which the ultimate judicial power restednot in the judges, but in the body that also exercised legislativepower. 47 The judges acted in the capacity of legal counselors to thepersons exercising ultimate executive, legislative and judicial authority,and did not possess the power of judicial review over legislativeand executive actions. 48Similar to the English system, “American colonial governmentsdid not separate the legislative, executive and judicial functions”either, and “judges in the colonial structure were by their40. Calogero, supra note 6, at 335.41. JAY, supra note 33, at 22.42. Matthew P. Harrington, Judicial Review Before John Marshall, 72GEO. WASH. L. REV. 51, 55 (2003).43. Id. at 58.44. Id.45. Id. at 61.46. JAY, supra note 33, at 25 (quoting 3 WILLIAM BLACKSTONE,COMMENTARIES *56).47. See id. at 52.48. See Note, Advisory Function, supra note 33, at 807-08.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM132 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123very positions continually involved in the process of advising executiveand legislative bodies.” 49 Under the Royal Charter of 1663,Rhode Island was governed by a General Assembly consisting of agovernor, a deputy governor and ten assistants elected annually. 50Those same men also constituted the colony’s highest court; thus,legislative and judicial functions were combined in the same bodyand the General Assembly exercised extensive control over the judicialaffairs of the colony. 51 In 1746 the governor and assistantswere removed from the court and replaced by annually appointedjustices, one chief and four associate justices. 52 The judges couldstill be members of the General Assembly, however, and the GeneralAssembly itself had the power to decide petitions praying forrelief from decisions of the court, powers similar to those possessedby the English House of Lords. 53 The petition process andthe annual appointment of judges existed under the Charterthroughout the colonial period and during statehood up until theestablishment of the state’s first constitution in 1843. 54 As theRhode Island Supreme Court later noted in Gorham v. Robinson, 55under the Charter the General Assembly:had the power to remove any of the judges at any time;and, as to the principles of separation of powers and ofthe independence of the judiciary, we cannot see that theywere given much recognition under a system of governmentin which all the judges of the highest court wereannually elected by the General Assembly, which alsoclaimed and, whenever it chose, exercised the power to adjudicatecases and to reverse the decisions and judgmentof the [state’s highest court]. 56Under the Charter, therefore, no “independent” judiciary ex-49. JAY, supra note 33, at 52.50. PATRICK T. CONLEY, DEMOCRACY IN DECLINE: RHODE ISLAND’SCONSTITUTIONAL DEVELOPMENT: 1776-1841 24 (1977).51. PATRICK T. CONLEY, LIBERTY AND JUSTICE: A HISTORY OF LAWS ANDLAWYERS IN RHODE ISLAND: 1636-1998 18-19, 21 (1998) [hereinafter CONLEY,LIBERTY AND JUSTICE].52. Id. at 21-22.53. Id.54. Id. at 22.55. 186 A. 832 (R.I. 1936).56. Id. at 841.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 133isted under any meaningful definition of that term, 57 nor wasthere any meaningful separation of powers. 58 Consequently therewas no real doctrinal or political discordance with the judges actingin an advisory capacity as opposed to a judicial capacity.The celebrated 1786 case of Trevett v. Weeden 59 provides someevidence of Rhode Island’s high court judges’ practice of giving adviceand counsel to the General Assembly. Public accounts of thetrial persuaded the General Assembly that the justices had declareda statute unconstitutional and void, causing the GeneralAssembly to summon the judges to appear to explain themselves. 60Contemporary accounts reported the testimony of one of thejudges, Judge Howell:He observed that, the order by which the judges were beforethe House might be considered as calling upon themto assist in matters of legislation, or to render the reasonsfor their judicial determination, as being accountable tothe legislature for their judgment. That in the formerview, the court was ever ready, as constituting the legalcounselors of the state, to render every kind of assistanceto the legislat[ure], in framing new or repealing formerlaws: but that for reasons of their judgment upon anyquestion judicially before them, they were accountableonly to God and their own conscience. 61Howell freely admitted the judges could be called upon in thelegislative process, a service which “fit precisely within the job descriptionof a British judge commanded to assist the House ofLords in legislative affairs.” 62The idea that the judiciary would be subject to the control ofthe legislature, as reflected in Rhode Island’s Charter government,was not an exceptional or novel idea in the time immediately fol-57. Id.58. CONLEY, LIBERTY AND JUSTICE, supra note 51, at 244.59. The case is unpublished. A brief account of the case is printed inJames M. Varnum, The Case, Trevett Against Weeden: On Information andComplaint for Refusing Paper Bills in Payment for Butcher’s Meat in Market,at Par with Specie (1787).60. Harrington, supra note 42, at 80.61. JAY, supra note 33, at 55 (quoting The Case, Trevett against Weedon& Co. (Providence, John Carter, 1787)) (emphasis added).62. Id.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM134 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123lowing the American Revolution. Although the doctrine of separationof powers would eventually become what James Madisonwould call “a first principle of free government,” 63 professor andhistorian Gordon S. Wood has written that “Americans in 1776gave only a verbal recognition to the concept of separation of powersin their Revolutionary constitutions, since they were apparentlynot concerned with a real division of departmentalfunctions.” 64 Some historians believe that separation of powers inthe 1776 state constitutions meant “nothing more than a prohibitionof plural office holding.” 65 Wood goes on to explain:Despite John Adam’s warnings in his Thoughts on Governmentthat “an upright and skillful administration ofjustice” required the judicial power “to be distinct fromboth the legislative and executive, and independent uponboth,” most of the early constitution-makers had littlesense that judicial independence meant independencefrom the people . . . . [C]onstitutional provisions givingcontrol of the courts and judicial tenure to the legislaturesactually represented the culmination of what the colonialassemblies had been struggling for in theireighteenth century contests with the Crown. The Revolutionarieshad no intention of curtailing legislative interferencein the court structure, and in fact they meant toincrease it. 66According to Wood, “[t]he expanded meaning of separation ofpowers, . . . along with a new conception of judicial independence,had to await the experience of the years ahead.” 67 In the years after1776, concerns about “the effects of legislative sovereignty and[its] unanticipated excesses” caused the invocation of “the principleof separation of powers in order to unscramble what seemed tobe a dangerous blurring of the three major functions of government,”68 and “[n]early all of the proposals for constitutional changebeing put forward in these years could be explained as a means of63. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 152 (Univ. N.C. Press 1969).64. Id. at 153-54.65. Id. at 156.66. Id. at 161.67. Id.68. Id. at 451.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 135separating the three functions of government.” 69Despite the evolution of the principle of separation of powersand the importance of an independent judiciary that may havebeen occurring in other parts of America at the time, however,Rhode Island’s Charter government resisted embracing that evolution.By 1841, however, “the omnipotence and adamancy of thelegislature” – along with limited suffrage and increasing malapportionment– became grievances severe enough for the establishmentof a new constitutional document. 70 The “agitation [forreform eventually] prompted the General Assembly to authorize aconstitutional convention” for November 1841. 71 The reformers,however, “exhorted the adult male citizenry to disregard the landholdingqualifications [for voting] and to go to the polls to electdelegates to a ‘People’s Convention,’ which would meet in October.”72 While the Landholders Convention authorized by the Chartergovernment did not produce a draft constitution, the People’sConvention presented a proposed constitution to the white malepopulation for ratification, regardless of whether they were landholders.73 It emphatically called for a separation of power betweenthe legislature and the judiciary, and the independence of the judiciary,providing:Article IIIOf the Distribution of Powers1. The powers of the Government shall be distributed intothree departments, the Legislative, the Executive and theJudicial.2. No person or persons connected with one of these departmentsshall exercise any of the powers belonging toeither of the others, except in cases herein directed orpermitted.69. Id. at 452.70. CONLEY, LIBERTY AND JUSTICE, supra note 51, at 205.71. Id. at 245.72. Id. at 246.73. Id.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM136 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123Article IVOf the Legislative Department1. The Legislative power shall be vested in two distinctHouses, the one to be called the House of Representatives,the other the Senate, and both together the GeneralAssembly.. . . .Article IXGeneral Provisions1. This Constitution shall be the supreme law of theState; and all laws contrary to, or inconsistent with thesame, which may be passed by the General Assembly,shall be null and void.. . . .4. No jurisdiction shall hereafter be entertained by theGeneral Assembly in cases of . . . appeal from judicial decisions,nor in any other matters appertaining to the jurisdictionof Judges, and Courts of law. But the GeneralAssembly shall confer upon the Courts of the State allnecessary powers for affording relief in the cases hereinnamed; and the General Assembly shall exercise all otherjurisdiction and authority, which they have heretofore entertained,and which is not prohibited by, or repugnant tothis Constitution.. . . .Article XIOf the Judiciary1. The Judicial power of this State shall be vested in oneSupreme Court, and in such other Courts, inferior to theSupreme Court, as the Legislature may, from time to

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 137time, ordain and establish. 74The new constitutional scheme envisioned by the People’sConstitution represented a dramatic departure from the Charter,providing for a clear separation of judicial and legislative power,and prohibiting the judiciary from exercising legislative powersand the General Assembly from exercising judicial power. Perhapsbecause of this clean break from the Charter’s melding of judicialand legislative power in the General Assembly, and the introductionof the separation of powers into Rhode Island’s constitutionalscheme, the People’s Constitution made no provision for the justicesto act as legal counselors to render advice to the coordinatebranches of the proposed government.In response the Landholder’s Convention was reconvened andproduced a draft of an alternative constitution, sometimes referredto as the Landholder’s or Freeman’s Constitution. 75 Althoughthis proposed constitution, drafted by a conventionconvened by the General Assembly, ostensibly called for a separationof powers, it effectively rejected separation of judicial and legislativepower and instead proposed a continued co-mingling ofthose powers in the General Assembly as had been the practiceunder the Charter. This Freeman’s Constitution provided:Article Third(To be inserted)[Of the Distribution of Powers.Section 1. The powers of the government shall be distributedinto three distinct departments: the Legislative, Executiveand Judicial.Sec. 2. No person or persons belonging to one of these departmentsshall exercise any of the powers properly belongingto either of the others, except in cases hereinexpressly directed or permitted.]74. R.I. CONST. art. III, §§ 2, 3; art. IV, § 1; art. IX, §§ 1, 4; art. XI, § 1(Proposed Draft 1841), reprinted in 2 ELISHA R. POTTER, RHODE ISLANDCONSTITUTION (1843). These proposals were finally adopted by the Conventionof the People. See POTTER, supra.75. See CONLEY, LIBERTY AND JUSTICE, supra note 51, at 249-50.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM138 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123Article FourthOf the Legislative PowerSection 1. This Constitution shall be the supreme law ofthe State, and all laws enacted contrary thereto, shall bevoid.Sec. 2. The Legislative power, under this Constitution,shall be vested in two distinct Houses, or Branches, . . .the one to be styled the Senate, the other the House ofRepresentatives; and both together, the General Assembly.. . . .Sec. 10. The General Assembly shall continue to exercisethe judicial power, . . . and all other powers they haveheretofore exercised not inconsistent with this Constitution.. . . .Article EleventhOf the Judicial PowerSec. 1. The Judicial power of this state shall be vested inone Supreme Judicial Court, and in such other inferiorCourts as the General Assembly may from time to timeordain and establish;. . . .Sec. 6. The Judges of the Supreme Judicial Court, shall inall trials instruct the Jury in the law, and it shall be theduty of said Judges, to give their opinions upon questionsof law, when required by the Governor, or either House ofthe General Assembly. 76The Landholders’ proposed constitution essentially called fora continuation of the relationship the supreme court justices and76. R.I. CONST., art. III, §§ 1, 2; art. IV, §§ 1, 2, 10; art. XI, §§ 1, 6 (ProposedDraft 1842), reprinted in 2 POTTER, supra note 74.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 139the General Assembly had had under the Charter. The justiceswould not possess any independent power, ultimate judicial authoritywould remain in the General Assembly, and as a consequencethe justices could, and would, continue to act as counselorsrendering legal advice to the General Assembly as well as theGovernor.After the Freeman’s Constitution was narrowly defeated atthe polls, two rival governments were subsequently elected – oneunder the People’s Constitution and a “Law and Order” governmentunder the Charter – which gave rise to a period of turmoilknown as the Dorr Rebellion. 77 When the Law and Order partyprevailed, it convened another constitutional convention in the fallof 1842 which substantially framed the present constitution. 78That constitution was remarkable for its ambiguity with respect tothe separation of judicial and legislative power, and the independenceof the judiciary. Whereas the People’s Constitution and theFreeman’s Constitution took clearly opposed but clearly expressedpositions on the appropriate political and governmental structure,the constitution that was ultimately enacted seems to have beendeliberately ambiguous, leaving the question unresolved. The Lawand Order Constitution provided:Article ThirdOf the Distribution of PowersThe powers of government shall be distributed into threedepartments; the Legislative, Executive, and Judicial.Article FourthOf the Legislative PowersSection 1. The Constitution shall be the supreme law ofthe State, and any law inconsistent therewith shall bevoid. The General Assembly shall pass all laws necessaryto carry this Constitution into effect.Sec. 2. The Legislative power, under this Constitution,shall be vested in two Houses, the one to be called the77. See CONLEY, LIBERTY AND JUSTICE, supra note 51, at 251-66.78. Id. at 266.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM140 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123Senate, the other the House of Representatives; and bothtogether the General Assembly.. . . .Sec. 10. The General Assembly shall continue to exercisethe powers they have heretofore exercised, unless prohibitedin this constitution.. . . .Article TenthOf the Judicial PowerSection 1. The Judicial power of this State shall be vestedin one Supreme Court, and in such inferior courts as theGeneral Assembly may, from time to time, ordain and establish.. . . .Sec. 3. The Judges of the Supreme Court shall, in all trials,instruct the jury in the law. They shall also give theirwritten opinion upon any question of law whenever requestedby the Governor, or by either House of the GeneralAssembly. 79The People’s Constitution specifically removed the ultimatejudicial power from the General Assembly and placed it solely inthe Supreme Court; it also provided for a clear demarcation betweenlegislative and judicial power, and omitted the justices’ preconstitutionalrole as legal advisors to the executive and legislativeelements of government. 80 The Freeman’s, or Landholder’s,Constitution, however, specifically reserved ultimate judicialpower to the General Assembly; in addition, it blurred the line betweenjudicial and legislative power; and, not surprisingly, continuedthe justices’ obligation to act extra-judicially as legaladvisors and counselors for the government. 81 The constitution ul-79. R.I. CONST. art. III; art. IV, §§ 1, 2, 10; art. X, §§ 1, 3 (Proposed 1842),reprinted in 2 POTTER, supra note 74. These provisions were adopted by theConvention assembled at Newport. See POTTER, supra.80. See supra note 74 and accompanying text.81. See supra note 76 and accompanying text.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 141timately adopted in 1842, however, did not specifically address theGeneral Assembly’s exercise of judicial power. 82 While it clearlycalled for the separation of legislative and judicial power, it simultaneouslypermitted the General Assembly to continue to exerciseall the powers it had previously exercised, and called for the justicesto act in a non-judicial advisory capacity as they had underthe pre-separation of powers Charter. 83Left open by the text was the question of whether the principleof separation of powers and the vesting of judicial power in theSupreme Court deprived the General Assembly of the judicialpower it had “heretofore exercised”? There is evidence the GeneralAssembly thought it did not. The first digest of laws enacted afterthe constitution became effective, the General Laws of 1844, containedan act modernizing the method of petitioning the GeneralAssembly for review of decisions of the Court. 84 Thus it seems evidentthe General Assembly was preparing to continue its preconstitutionalposition as the state’s ultimate appellate authority,and if it did, there would be nothing remarkable about continuingthe justices’ advisory and counseling role or about them remainingin a role essentially subservient to a General Assembly – whichcould overrule their decisions as a court, or reject their advice ascounselors. As we shall soon see, however, the Supreme Court itselfviewed the new constitutional order, in particular the relationshipof the judiciary and the legislators, quite differently.The tension between the command of separate powers withultimate judicial power being in the supreme court, and the GeneralAssembly’s view that it could continue to exercise judicial appellatepower – eventually began its path to the Rhode IslandSupreme Court in 1854 with the case of Taylor v. Place. 85 TheGeneral Assembly had ordered a new trial for garnishees of acompany indebted to another firm; prior to this order the courtshad rejected a claim for a new trial. 86 This exercise of judicial82. See supra note 79 and accompanying text.83. See id.84. See Patrick T. Conley, Article VI, Section 4: A Case Study in ConstitutionalObsolescence, 53 R.I. BAR J. 2, at 10.85. See C. Peter Magrath, Samuel Ames: The Great Chief Justice ofRhode Island, in LIBERTY AND JUSTICE: A HISTORY OF LAW AND LAWYERS INRHODE ISLAND: 1636-1998, 309 (Patrick T. Conley ed., 1998); Taylor v. Place,4 R.I. 324, *1 (1856).86. See id. at *12 n. 1.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM142 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123power was then challenged under the new constitution. The SupremeCourt’s subsequent interpretation of the constitution’sseparation of powers, in a decision authored by Chief JusticeAmes, fundamentally altered the constitutional arrangement ofjudicial and legislative roles. 87 Ames held that the General Assembly’saction constituted the exercise of judicial power, and thatthe constitution’s distribution of powers:was . . . made for the special purpose of depriving the generalassembly of their long exercised judicial power,which, rightly or wrongly, that body had assumed underthe Charter. . . . It was the assumption of judicial powerby the general assembly, which must have been speciallyaimed at by this clause of distribution. 88Chief Justice Ames asserted that “[a]n independent, responsiblejudiciary is the only safeguard of our property, lives, and liberties,”89 and as historian Patrick Conley has written, “[t]helegislature acquiesced in this bold decision in 1857, when its newdigest of general laws revised the petition process to exclude thetraditional review of court cases.” 90 Thus the separation of powersand independence of the judiciary were imbued with a significantlystronger character in the constitutional scheme.Given this invigoration of the separation of powers and theindependence of the judiciary, the post-Taylor advisory power necessarilyrequired a greater sensitivity to such concerns than didthe pre-Taylor advisory power. In fact, it seems this was at leastconsidered. On two occasions, first in 1899 and then in 1915, twoseparate commissions created by the General Assembly recommendednumerous revisions to the state constitution which included,among other changes, a proposed revision to the advisoryclause that would have given the justices discretion to decline toanswer questions submitted to them. 91 The revised clause wouldhave provided: “The justices of the Supreme Court shall give their87. See Magrath, supra note 85, at 310.88. Taylor, 4 R.I. at *12 (emphasis added).89. Id. at *10.90. Conley, supra note 84, at 10.91. JOINT SPECIAL COMM. ON CONST. AMENDS. REPORT TO R.I. GEN.ASSEMBLY, at 27 (Jan. 1899) (on file with author); REPORT OF COMM’N TOCONSIDER THE AMEND. AND REVISION OF THE CONST., at 37 (Jan. 1915) (on filewith author).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 143written opinion upon any question of law whenever requested bythe governor or by either house of the general assembly: provided,that they may decline to answer such questions as in their opinionthey cannot properly decide.” 92 The entire 1898 proposed revisedconstitution, however, was rejected by the electorate, and the proposedrevisions of the 1915 draft constitution were never submittedto the voters. 93 Nevertheless, the justices themselves would,over time, begin imposing limitations on the advisory power, 94 andwould give constitutional recognition to the tension caused by includinga pre-separation of powers advisory function in a constitutionaldocument premised on the separation of legislative,executive, and judicial power.B. The Rhode Island Justices’ Interpretation of the ConstitutionalGrant of Advisory PowerThe most notable limitations on the advisory power were conceivedin the 1960’s to accommodate the separation of powers andits corollary, the independence of the judiciary. The limitations,however, eventually came to be focused only on the justices’ obligationto advise under article 10, section 3. As asserted earlier,however, the phrase “shall give their written opinion upon anyquestion of law whenever requested” 95 is not only the source of thejustices’ obligation to act as legal advisors, it is also the source oftheir authority to do so. The source of both authority and obligationis plainly the same; authority and obligation are indivisibleand coextensive. Where there is authority there is obligation;where there is obligation there is authority. In interpreting section3, however, the justices have described when they are “constitutionallyrequired” 96 to give a written opinion to one of thecoordinate branches, and limited their discussions to the “constitutionalmandate” 97 of article 10, section 3 and the circumstances92. R.I. CONST. art. X, § 4 (Proposed Revision of 1899), reprinted in 2POTTER, supra note74.93. Conley, supra note 84, at 11.94. See Mel A. Topf, The Jurisprudence of the Advisory Opinion Processin Rhode Island, 2 ROGER WILLIAMS U. L. REV. 207, 235-36 (1996).95. R.I. CONST. art. X, § 3 (emphasis added).96. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320, 324(R.I. 2004).97. In re Request for Advisory Opinion from the Governor (Warwick StationProject), 812 A.2d 789, 790 (R.I. 2002).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM144 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123in which they are “constitutionally obligated” 98 to give advisoryopinions. Their power to advise extra-judicially and the obligationfor them to do so, however, are two sides of the same coin; whenthe justices interpreted section 3 to limit and frame their obligationto give advisory opinions, they also limited and framed theirconstitutional authority to do so as well. The two seminal cases interpretingthe constitutional text to include limits on the obligationto give advisory opinions, Opinion to the Governor 99 andOpinion to the House of Representatives, 100 demonstrate the propositionthat obligation and authority are indivisible.In the 1963 Opinion to the Governor, 101 the justices acknowledgedthe advisory power was a “peculiar obligation” 102 distinctfrom the exercise of judicial power. 103 The justices asserted it wasincluded in the constitution “to enable the executive and legislativedepartments to more effectively discharge particular dutiesthat are textually committed to them by the constitution.” 104 Thejustices reasoned the framers of the provision must have believedeffective legislative and executive performance “require[d] fromtime to time assistance from the judges of [the] court upon questionsof law, assistance which the framers contemplated as beingbest provided through the device of an advisory opinion.” 105 Consequently,when the advisory clause is “read in this light:” 106it becomes clear that the requirement that such an opinionbe given “upon any question of law” was intended tobe exclusory in effect. It was intended primarily to excludethe requirement that such opinions be given upon questionsof law that do not challenge the consistency of law,enacted or proposed, with pertinent constitutional provisions.. . . [W]e are of the opinion that the pertinent constitutionalprovision [article 10, section 3] requires thatthe judges of this court furnish advisory opinions only98. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318 (R.I.1986).99. 191 A.2d 611 (R.I. 1963).100. 208 A.2d 126 (R.I. 1965).101. 191 A.2d 611.102. Id. at 614.103. Id. at 613.104. Id. at 614 (emphasis added).105. Id.106. Id.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 145with respect to the consistency with constitutional provisionsof legislation enacted or proposed. 107Stated differently, the justices concluded the phrase “anyquestion of law” was not intended by the framers to mean anyquestion of law, but rather only questions of law concerning theconstitutionality of proposed or enacted legislation. They reachedthis interpretation because of the separation of powers principle.The justices have reasoned that “article 5 of the Rhode IslandConstitution provides for a tripartite form of government, stating:‘The powers of the government shall be distributed into three departments:the legislative, executive and judicial,’” 108 and the justiceshave adhered to the view that this separation of powers “isan integral element of the republican form of government.” 109 Itacts to limit one branch of government from “interfer[ing] impermissiblywith the other’s performance of its constitutionally assignedfunction.” 110 In the 1963 advisory, the justices concludedthe advisory power must be interpreted so as to not disturb thisfundamental characteristic of American constitutional government.111 The justices considered whether the questions propoundedto them in that instance could reasonably be held “tocome within the scope of sec. 2 of art. XII of the amendments.” 112 Indetermining the scope of the state constitution’s advisory clause,the justices noted their “reluctance to subvert the principle of theseparation of powers by translating the obligation to give advisoryopinions upon request into a grant of authority to give such opinionswhere the inquiry is not such as to reasonably be within thepurview of the constitutional provisions.” 113 The justices believedlimits on the advisory opinion clause were necessary because of its“obvious repugnance . . . to the principle of separation of pow-107. Id. (emphasis added).108. In re Advisory Opinion to the Governor (Ethics Comm’n), 612 A.2d 1,15 (R.I. 1992).109. Id. at 18; see also In re Advisory from the Governor, 633 A.2d 664,674 (R.I. 1993).110. In re Advisory Opinion to the Governor, 732 A.2d 55, 102 (R.I. 1999)(Flanders, J.) (quoting INS v. Chadha, 462 U.S. 919, 963 (1983) (Powell, J.concurring)).111. Opinion to the Governor, 191 A.2d at 613.112. Id. (emphasis added). Note that article III, section 2 the justices referencedin 1963 is now article X, section 3.113. Id. (emphasis added).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM146 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123ers,” 114 and that they had a “‘duty, in view of the separation of theexecutive, legislative and judicial departments of government, toabstain from [giving an advisory opinion] in any case which doesnot fall reasonably within the constitutional clause.’” 115 Statedsuccinctly, the justices determined the text of article 10, section 3was to be strictly construed in light of the fundamental principlemarking both the federal and state constitutional systems –namely, the separation of powers – and that this limited the“grant of authority to give such opinions.” 116Two years later the same justices made explicit what was implicitin the separation of powers limitation. In the 1965 advisoryOpinion to the House of Representatives 117 , the justices declaredthe purpose of the advisory clause – to assist the executive andlegislative branches in the performance of their own constitutionalduties – was both “narrow” and “substantially limited.” 118 The justiceswarned “undue expansion of that purpose by judicial fiat”would have an “obvious adverse effect” on the “constitutionalseparation of powers” by injecting the justices into the governmentalfunctions constitutionally committed to other branches of government.119 Considering the principle of separation of powerspersuaded the justices that the scope of the constitutional advisorypower was limited to rendering opinions to either House ofthe General Assembly only on proposed legislation, and to the executivebranch only when the question concerned the constitutionalityof legislation that was already enacted. 120 In other words,the advisory clause authorized the court to give assistance to thelegislature when it was considering whether to enact legislation,and to the executive when he or she was called to execute enactedlegislation. Later justices would refine the interpretation of article10, section 3 to explicitly state that its application to questionsfrom the governor was also limited to occasions in which the statuteat issue required implementation by the executive, 121 and had114. Id. at 614.115. Id. (quoting To Certain Members of the Senate in the General Assembly,191 A. 518, 520 (R.I. 1937)).116. Id. at 613.117. 208 A.2d 126 (R.I. 1965).118. Id. at 127-28.119. Id. at 127.120. See id. at 127-28.121. See In re Request for Advisory Opinion to the Governor (Rhode Island

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 147a bearing upon a present constitutional duty awaiting the executive’sperformance. 122The justices have recognized that in light of these limitationsit follows that neither the governor nor the legislature possess“standing to propound questions which are clearly the prerogativeof the other.” 123 That means the constitutional advisory clausedoes not permit justices to advise the governor concerning the constitutionalityof proposed legislation being considered by the generalassembly, or to advise either House of the General Assemblyconcerning the governor’s obligation to implement already enactedlegislation. As interpreted by the justices, the purpose of the advisoryclause permits the justices to provide advice to either the legislativeor executive branch about the constitutionality of its ownaction, not about the actions of the other branch. It was not intendedas a means for one branch to supervise the other. 124 Questionsfrom one branch seeking “advice” concerning how theremaining branch is fulfilling its constitutional duties “are almostalways highly political;” 125 the agenda of an advisory opinion ismore political than adjudicatory because it is not brought by a privatelitigant challenging legislation that has brought them injury,but instead by one branch of government which is attempting touse the court to influence the other. 126 Permitting such questionsEthics Comm’n–Separation of Powers), 732 A.2d 55, 59 (R.I. 1999) (citing Inre Advisory from the Governor, 633 A.2d 664, 666 (R.I. 1993)).122. See id. (citing In re Request for Advisory Opinion Regarding HouseBill 83-H-5640, 472 A.2d 301, 302 (R.I. 1984)). Although this strict interpretationof the text of article 10, section 3 has only occurred in the context of“nonbinding” advisory opinions, the justices’ interpretation of the constitutionalenabling language should be entitled to stare decisis, and in fact, subsequentjustices have accorded the interpretation such status andoverwhelmingly agreed with it. See Robert H. Kennedy, Advisory Opinions:Cautions About Non-Judicial Undertakings, 23 U. RICH. L. REV. 173, 182 & n.31 (1989); see also In re Advisory to the Governor (Casino), 856 A.2d 320 (R.I.2004); In re Request for Advisory Opinion from the Governor (Warwick StationProject), 812 A.2d 789, 790 (R.I. 2002); In re Advisory Opinion to theGovernor, 732 A.2d at 59; In re Advisory Opinion to the House of Representatives(Impoundment of State Aid to Cities and Towns), 576 A.2d 1371, 1372(R.I. 1990); In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318-19(R.I. 1986); Opinion to the Governor, 284 A.2d 295 (1971).123. Advisory Opinion (Chief Justice), 507 A.2d at 1319; Opinion to theGovernor, 284 A.2d at 296.124. See Topff, supra note 94, at 406.125. Kennedy, supra note 122, at 197.126. Id. at 179.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM148 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123poses two dangers. First, it allows the legislature or the executive,with the assistance of the judiciary, to subtly interfere with theconstitutional duties entrusted to a separate branch. Second, itembroils the justices in a political power contest generally “at theheight of its political tension,” 127 and “risks an appearance of anactive political engagement that may be perceived as contrary tothe work of an independent judiciary.” 128 The justices recognizedthese dangers and limited the application of the advisory clause toneutralize them, and to preserve the integrity of both the separationof powers and independence of the judiciary.II. THE AUTHORITY AND OBLIGATION TO RENDER ADVISORY OPINIONSARE COEXTENSIVEOther than referring to the “grant of authority” to render advisoryopinions in Opinion to the Governor, 129 the justices have notexplicitly acknowledged the coextensive nature of the authorityand obligation to give advice to the coordinate branches. It is,however, a necessary corollary of strictly construing the phrase“any question of law.” The justices of New Hampshire’s, Maine’sand Massachusetts’s highest courts have been more explicit in acknowledgingthis inevitable proposition. The Maine State Constitutionprovides that its justices “shall be obliged to give theiropinion upon important questions of law, and upon solemn occasions,when required” by the coordinate branches. 130 Both the NewHampshire and Massachusetts constitutions declare that the coordinatebranches “shall have authority to require the opinions ofthe justices . . . upon important questions of law and upon solemnoccasions.” 131 Like Rhode Island’s constitutional clause, these provisionsobligate the justices to provide advisory opinions. UnlikeRhode Island’s clause which obligates the justices to do so “uponany question of law,” 132 these other provisions obligate the justicesto do so only “upon important questions of law and upon solemnoccasions.” 133 Rhode Island justices have, however, placed an in-127. Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring).128. Kennedy, supra note 122, at 197.129. 191 A.2d 611, 613 (R.I. 1963).130. ME. CONST. art. 6, § 3.131. N.H. CONST. pt. 2. art. 74; MASS. CONST. pt. 2, ch. 3, art. 2.132. R.I. CONST. art. X, § 3.133. See infra note 143 and accompanying text.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 149terpretive gloss on the “any question of law” text that essentiallylimits its meaning to important questions and solemn occasions asthey have defined them. But the New Hampshire, Maine andMassachusetts justices have also characterized the “importantquestion of law” and “solemn occasions” qualifiers as limits, notonly upon their duty to render advisory opinions, but upon theirconstitutional authority to do so as well.New Hampshire Supreme Court justices opine that their stateconstitution “empowers the justices of the supreme court to renderadvisory opinions . . . only in carefully circumscribed situations.” 134The Maine justices have acknowledged that the “on importantquestions of law” and “upon solemn occasions” qualifiers definethe scope of the “constitutional authority” as well as duty to advisethe Governor, the Senate, or the House of Representatives. 135When the Maine justices receive a request for advice they mustfirst “determine whether [they] have the constitutional authorityto answer the questions,” 136 and “refrain from issuing an opinionthat is . . . [not] within the constitutional grant of [the] advisorypower.” 137 The Maine justices once explained, in language thatshould apply in Rhode Island:Only subject to carefully confined conditions does theMaine Constitution give the Justices of the Supreme JudicialCourt the extraordinary responsibility of renderingtheir opinion. . . . An advisory opinion, which representsthe views of the individual Justices and is not the decisionof the Supreme Judicial Court sitting as the LawCourt, is constitutionally permissible only “on importantquestions of law, and upon solemn occasions.”. . . “[T]heboundaries set by the Constitution on our duty to furnishopinions are jurisdictional in nature and must be strictlyobserved in order to preserve the fundamental principle of134. In re Opinion of the Justices, 824 A.2d 816, 818 (N.H. 2003) (emphasisadded).135. Opinion of the Justices, 460 A.2d 1341, 1345 (Me. 1982) (emphasisadded).136. Opinion of the Justices, 709 A.2d 1183, 1185 (Me. 1997) (citing Opinionof the Justices, 682 A.2d 661, 663 (Me. 1996); see also Opinion of the Justices,674 A.2d 501, 502 (Me. 1996) (citing Opinion of the Justices, 623 A.2d1258, 1261 (Me. 1993)).137. Opinion of the Justices, 674 A.2d at 502.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM150 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123the separation of the judicial from the executive and legislativebranches of government.” 138Massachusetts Supreme Judicial Court justices also recognizethat the advisory clause in their state constitution is “[t]he sourceof the authority and the duty of the Justices to render advisoryopinions.” 139 The Massachusetts Constitution not only “define[s]the extent of the duty of the Justices to furnish opinions, but italso limits their right to express them. . . . The Justices must adherestrictly to the jurisdictional boundaries established . . . in orderto safeguard the separation of powers embodied in art. 30 ofthe Massachusetts Declaration of Rights.” 140 If no “solemn occasion”exists, as that term is interpreted by the justices, they “areconstitutionally constrained from rendering an advisory opinionregardless of the importance of the particular questions.” 141 Theyacknowledge that while “[t]here is always present the desire onthe part of the Justices to comply with the request for an opinion. . . the duty of conformity to the meaning of [the] clause is acontinuing one and cannot be avoided.” 142 Justices on Massachusetts’sSupreme Judicial Court in the 19 th century stated:While it is our duty to render opinions in all those casesin which either branch of the legislature or the governorand council may properly require them, it is not the lessour duty, in view of the careful separation of the executive,legislative, and judicial departments of the government, toabstain from doing so in any case which does not fallwithin the constitutional clause. 143Therefore, despite at least three of her sister states’ ready andcontinued observance of the distinction between the constitutionalauthority and obligation to render an advisory opinion, Rhode Is-138. Opinion of the Justices, 460 A.2d at 1345-46 (emphasis added) (citationsomitted).139. Answer of the Justices to the Council, 291 N.E.2d 598, 599 (Mass.1973).140. Answer of the Justices to the Senate, 780 N.E.2d 444, 446 (Mass.2002) (citations omitted) (emphasis added).141. Answer of the Justices to the Acting Governor, 686 N.E.2d 444, 446(Mass. 1997).142. Answer of the Justices to the Senate, 780 N.E.2d at 446.143. In re Power of the Legislature to Require Opinion, 24 N.E. 1086,1087-88 (Mass. 1890) (emphasis added).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 151land has declined, as of yet, to follow suit.III. RHODE ISLAND’S PUBLIC IMPORTANCE EXCEPTIONWhile some might debate whether the “any question of law”text of the advisory clause can legitimately be interpreted as narrowlyas the justices have interpreted it, 144 even in light of separationof powers considerations, if the construed limitations areaccepted one would reasonably believe they are not only constitutionallimits on the questions the justices are obliged to advise on,but limits on their constitutional authority to do so as well. If thequestion meets the criteria declared by the justices, they haveboth the authority and obligation to answer it. If it does not, theydo not have either. One could reasonably believe the justiceswould adhere to the view that neither the text of the advisoryclause nor the justices’ interpretation of it admit of any discretion.But the justices have in fact asserted a discretionary authority toanswer questions falling outside of the constitutional parametersthey themselves have declared.When article 10, section 3 was first interpreted in 1965 to applyonly to both questions from either house of the General Assemblyas to the constitutionality of proposed legislation, and fromthe Governor on the constitutionality of legislation already enacted,the justices counseled against “undue expansion” of thescope of the advisory power by “judicial fiat” because to do so itwould have an “obvious adverse effect” on the constitutional separationof powers. 145 The limitations were necessary to permit thecommand of the separation of powers of article 5 to constitutionallycoexist with advisory power of article 10, section 3. 146 In 1971they opined they would “scrupulously avoid giving advisory opinionsin circumstances not constitutionally mandated” because to144. Former Justice Robert G. Flanders, Jr. has described the language ofarticle 10, section 3 as “unequivocal, preemptory, and without qualification.”In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n – Separationof Powers), 732 A.2d 55, 74 (R.I. 1999) (Flanders, J.). He has opinedthat none of the limitations that other justices have gleaned from the text ofthe advisory section in light of the separation of powers principle “have anybasis in the constitution.” In re Request for Advisory Opinion from the Governor(Warwick Station Project), 812 A.2d 789, 792 (R.I. 2002) (Flanders, J.).145. Opinion to the House of Representatives, 208 A.2d 126, 127 (R.I.1965).146. See supra note 132 and accompanying text.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM152 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123do so “would amount to inexcusable gratuitousness.” 147The description “inexcusable gratuitousness” is perplexing.Rather than declaring they had no constitutional authority to actwhen a question propounded to them was outside the limitationsimposed by their interpretation of the text, they instead claimed itwould be gratuitous to act. Rather than clearly defining the limitof their authority, they left it opaque. This began the justices’ focuson the limits on their constitutional obligation to render anadvisory opinion, while neglecting consideration of the limits oftheir constitutional authority to do so. They would “scrupulouslyavoid” giving advisory opinions on questions that did not meet thecriteria they had set forth, not because it would be unconstitutionalor beyond their constitutionally conferred advisory authority,but merely because it would be inexcusably gratuitous to doso. Thus, the justices chose language implying they had no obligationto render advice on questions that did not meet the constitutionalparameters they had placed on the advisory authority, butrefrained from explicitly declaring they had no constitutional authorityto answer such questions. The subtle implication was thatobligation and authority were severable, without explaining whyor where their advisory authority then purported to come from.The severance of authority from obligation lay dormant for atime, but the implied assertion of an extra-constitutional discretionarypower to advise began to bloom fifteen years later in In reAdvisory Opinion (Chief Justice). 148 At issue was a request for anadvisory opinion regarding a resolution, proposed in the Senate, tovacate the seat held by the Court’s Chief Justice. 149 The requestfor the advisory came, however, from the Governor, the Speaker ofthe House of Representatives and the Majority Leader of the Senate.150 The justices noted the Governor had no present constitutionalduty awaiting performance, 151 and consequently, his requestwas outside the scope of the advisory clause as it had been construed.They also noted both the request of the Speaker and of theSenate Majority Leader were brought by the leaders only, andwere not the result of formal action taken collectively by either147. Opinion to the Governor, 284 A.2d 295, 296 (R.I. 1971).148. 507 A.2d 1316 (R.I. 1986)149. Id. at 1317.150. Id. at 1318.151. Id. at 1319.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 153house of the General Assembly. 152 Notwithstanding the fact thatthe justices had many years earlier opined that the advisoryclause could be triggered only by the collective action of eitherhouse, they labeled this a mere “procedural deficienc[y] . . . in viewof the fact that either branch of the Legislature could independently,by majority vote, propound the same question to thiscourt.” 153 Because the question concerned the legality of a proposedlegislative action, and a request by either house of the generalassembly would have substantively been within the scope ofthe constitutional advisory authority had the legislators followedthrough to make it a collective action, the justices declared theyhad the discretion to waive the “procedural” defect because of “theconstitutional and public importance of the question propoundedto [the] court.” 154As Chief Justice Weisberger later described, the request didinvolve the constitutionality of pending legislation and “[i]t wasobvious that a request propounded by the leaders of both Housesof the General Assembly was technically defective but that such aquestion could have rapidly been transformed into a request by eitherHouse.” 155 Accepting the presumption that the MajorityLeader and Speaker’s wishes would have been rapidly granted bythe Senate and the House, the deficiencies in In re Advisory Opinion(Chief Justice) may plausibly be described as procedural. Aprocedurally sufficient request by either house of the general assemblywould have satisfied the substantive limitations the justiceshad placed on the reach of the advisory power. Thus, thediscretion the justices determined they could exercise in In re AdvisoryOpinion (Chief Justice) was not a discretion to “waive” theadvisory power’s substantive limitations in the name of public importance;it was simply a discretion to waive a procedural insufficiencywhen the substantive limitation would have been satisfied.The “procedural” appellation, however, would soon be inexplicablytransported to the substantive limitations.Four years later, in In re Advisory Opinion to the House of152. Id.153. Id.154. Id. at 1319-20.155. In re Advisory Opinion to the House of Representatives (Impoundmentof State Aid to Cities and Towns), 576 A.2d 1371, 1376 (R.I. 1990)(Weisberger, J., dissenting).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM154 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123Representatives (Impoundment of State Aid to Cities andTowns), 156 a majority of the justices agreed to provide advice to theHouse because of the “public importance” of the question. 157 However,as then Chief Justice Weisberger pointed out in a dissentingopinion:[T]he House of Representatives clearly propounds a questionthat has nothing to do with the constitutionality ofpending legislation. The request seeks an advisory opinionconcerning a duty to be performed by the Governor inrespect to legislation already enacted. Such a questionunder our cases should not be answered pursuant to articleX, section 3, of the 1986 Rhode Island Constitution orits predecessor article XII, section 2, of the Amendmentsto the Constitution of 1843.Any reply from this court to an advisory request madeby the House of Representatives in respect to a duty to beperformed by the Governor is particularly inappropriatein light of the undisputed fact that the Governor does notseek our advice on this question. Indeed, the Governorhas filed a brief clearly indicating that he feels that atthis time our answer to such a question propounded bythe House of Representatives would be a violation of ourprecedents. With this position I wholeheartedly agree. 158The remaining justices relied on In re Opinion (Chief Justice)159 as the sole authority for waiving “procedural defects” incases of public importance, 160 effectively enlarging the procedurallabel to encompass the substantive limitations that had previouslylimited their constitutional authority to issue an advisory opinion.The justices did not discard the limitations, or repudiate the reasoningthat led prior justices to interpret the text of the advisoryclause to include them. Instead, they simply masked them with alabel that would imply they were something they were not. As oneformer justice of the court might have said of such an effort, you156. 576 A.2d 1371 (R.I. 1990).157. Id. at 1372.158. Id. at 1376 (Weisberger, J. dissenting).159. 507 A.2d 1316.160. In re Advisory Opinion to the House of Representatives (Impoundmentof State Aid to Cities and Towns), 576 A.2d at 1372.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 155can call a cat a dog, but that won’t make it bark. 161 Nevertheless,the transmutation of the substantive limitations on the advisorypowers, limitations intended to protect the principle of separationof powers, was now complete. The substantive interpretation of“any question of law,” to be limited to questions from either houseof the General Assembly concerning the constitutionality of pendinglegislation, or to questions from the Governor concerning theconstitutionality of existing statutes requiring his or her implementation,would subsequently be called mere “procedural infirmities”162 or “procedural deficiencies” 163 that the justices had thediscretion to waive. In effect, what had been constitutionalboundaries on the justices’ authority to issue advisory opinionswere now waivable. The justices elected to breach the wall previouslyerected to protect, enforce and strengthen the separation ofpowers, agreeing to offer advisory opinions to the Governor on legislationthat was pending in the legislature 164 and to the GeneralAssembly on questions concerning previously enacted legislationthat was then the constitutional responsibility of the Governor toexecute. 165 In sum, the justices elected to exercise a discretion toadvise one branch about what the other branch was doing orshould be doing, based on the justices’ assessment of the publicimportance of the question presented. 166The “public importance” exception reached its zenith, however,in the 2004 advisory opinion to the Governor concerning theconstitutionality of the Casino Act. 167 Although neither house of161. See, e.g., Cohen v. Harrington, 722 A.2d 1191, 1195 (R.I. 1999)(Bourcier, J.) (“Labeling a cat a dog certainly will not cause a cat to bark.”);Peerless Ins. Co. v. Viegas, 667 A.2d 785, 789 (R.I. 1995) (Bourcier, J.) (“Aplaintiff, by describing his or her cat to be a dog, cannot simply by that descriptivedesignation cause the cat to bark.”).162. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320, 324(R.I. 2004).163. In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n- Separation of Powers), 732 A.2d 55, 59 (R.I. 1999); In re Advisory from theGovernor, 633 A.2d 664, 667 (R.I. 1993).164. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 327;In re Advisory Opinion to the Governor, 732 A.2d at 59; In re Advisory Fromthe Governor, 633 A.2d at 667.165. See In re Advisory Opinion to the House of Representatives, 576 A.2d1371, 1372 (R.I. 1990).166. E.g., In re Advisory Opinion to the Governor (Casino), 856 A.2d at324-25.167. Id. at 320; see also The Rhode Island Gaming Control and Revenue

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM156 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123the General Assembly sought the justices’ advice concerning theconstitutionality of the Act, and the justices acknowledged theGovernor had no present obligation to implement the legislationfor which he sought an advisory opinion, that fact was merely a“procedural hurdle[ ] that must be cleared before [the court’s] dutyto issue an advisory opinion [arose],” and this “procedural infirmit[y]”meant only that they were “not constitutionally required toissue an advisory opinion.” 168 As other justices had done beforethem, they proceeded to issue an advisory opinion claiming thediscretion to issue such an opinion upon any request raising “importantconstitutional or social questions,” discretion to be exercisedon a “case by case basis” with no “clearly defined test” forwhen they would or should exercise it. 169 The idea of constitutionallimits on the authority to issue an advisory opinion was now completelydivorced from the constitutional limits on the obligation toissue them. The parameters that, in the name of separation ofpowers, limited the “standing” of the legislative and executivebranches to seek advice concerning the exercise of their own constitutionalduties now only limited what questions the justiceswere obligated to answer, not their authority to answer them. 170No analysis, however, addressed the source of the justices’ authorityto render non-judicial written advice to the legislature or thegovernor outside the parameters they had found in the constitutionaltext, and whether that authority was limited by article 10,section 3 and the separation of powers. 171 What had been (and are)substantive constitutional limitations on the justices’ advisorypower were now labeled mere procedural technicalities the justicescould waive at their discretion, unfettered by any articulatedstandards as to when the discretion should be exercised. That is along way from “shall give their written opinion upon any questionof law whenever requested.” 172In fashioning the public importance exception, the justices focusedexclusively on whether they should answer a question thatAct (Casino Act), 2004 R.I. Pub. Laws 594 (2004-S 2338 Substitute A asAmended).168. Id. at 324 (first emphasis added).169. Id. at 324-25.170. See id. at 324.171. See id. at 324-25.172. R.I. CONST. art. X, § 3.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 157does not come within their own interpretation of article 10, section3, but not at all on whether they could answer such a question. 173The justices have effectively asserted that article 10, section 3gives them the authority to answer all questions propounded bythe Governor and the Legislature, but limits only the questionsthey are obligated to answer. 174 In asserting this extraordinary interpretationof the advisory clause text, the justices offered no interpretiveanalysis or explanation, nor did they address theimplications of their expansive view of extrajudicial advisorypower on the principle of separation of powers. 175 In a 1990 advisoryopinion, Chief Justice Weisberger characterized the resort tothe public importance exception as “inappropriate” and “a violationof our precedents.” 176 He was respectfully restrained; the publicimportance exception is outside the Rhode Island SupremeCourt justices’ constitutionally conferred authority and is a breachof “an inherent and integral element of the republican form ofgovernment:” 177 the separation of powers. It is the unconstitutionalexercise of the non-judicial power.IV. UNCONSTITUTIONAL AND DANGEROUSLY POLITICALAs stated earlier with respect to limits on the judicial power,“a single basic idea – the idea of separation of powers,” 178 reflectsthe “overriding and time-honored concern about keeping the Judiciary’spower within its proper constitutional sphere,” 179 and counselsagainst a court acceding to the urge to decide “the merits of []important dispute[s] and to ‘settle’ [them] for the sake of convenienceand efficiency.” 180 Limits on a court’s authority to act “are anessential ingredient of separation and equilibrium of powers, restrainingthe courts from acting at certain times, and even restrainingthem from acting permanently regarding certain173. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 324.174. Id.175. Id. at 324-25.176. In re Advisory Opinion to the House of Representatives, 576 A.2d1371, 1376 (R.I. 1990) (Weisberger, J., dissenting).177. In re Advisory Opinion From the Governor, 633 A.2d 664, 674 (R.I.1993).178. Raines v. Byrd, 521 U.S. 811, 820 (1996) (quoting Allen v. Wright,468 U.S. 737, 752 (1984)).179. Id.180. Id.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM158 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123subjects.” 181 These same considerations must apply with respect tolimits on the advisory power as well. Past justices of the Rhode IslandSupreme Court have in fact defined the constitutional limitsto the exercise of the advisory power. 182 Those limits flow from theidea of separation of powers – an idea that recognizes the limits ofthe court’s powers and restrains one branch from interfering withanother’s exercise of its constitutional responsibilities. 183 Theselimits must be respected even where the justices are urged, in thename of efficiency and convenience, to advise on important publicand, virtually always, political disputes.Moreover, there are advantages to waiting to adjudicate theconstitutionality of legislation in the usual exercise of the court’sconstitutionally conferred judicial power rather than in the acceleratedprocedure of an advisory opinion. Waiting “serves ‘[t]hevalue of having courts function as organs of the sober secondthought of the community appraising action already taken, ratherthan as advisers at the front line of governmental action at thestage of initial decision.’” 184 “[R]espect for separation of powers requiresthe Judicial Branch to exercise restraint in deciding constitutionalissues by resolving those implicating the powers of thethree branches of Government as a ‘last resort.’” 185 United StatesSupreme Court Justice David Souter has written in a somewhatdifferent context that:The counsel of restraint . . . begins with the fact that adispute involving only officials, and the official interestsof those, who serve in the branches of the . . . Governmentlies far from the model of the traditional common-lawcause of action at the conceptual core of the case-orcontroversyrequirement. . . . [I]t is in substance an interbranchcontroversy. . . . Intervention in such a controversywould risk damaging the public confidence that is181. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).182. See, e.g., Opinion to the House of Representatives, 208 A.2d 126, 127-28 (R.I. 1965); Opinion to the Governor, 191 A.2d 611, 614 (R.I. 1963); see alsosupra Part I.B.183. See Opinion to the House of Representatives, 208 A.2d at 127; Opinionto the Governor, 191 A.2d at 613-14.184. JAY, supra note 33, at 5 (quoting Allen v. Wright, 478 U.S. 737, 750(1984)).185. Raines, 521 U.S. at 833 (Souter, J., concurring).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 159vital to the functioning of the Judicial Branch. 186Waiting to resolve the constitutionality of a legislative act untila challenge is brought by a party from outside the governmentwould, in Justice Souter’s view, “expose the Judicial Branch to alesser risk [because deciding] a suit to vindicate an interest outsidethe Government raises no specter of judicial readiness toenlist on one side of a political tug-of-war.” 187 Souter continued toexplain that “just as the presence of a party beyond the Governmentplaces the Judiciary at some remove from the politicalforces, the need to await injury to such a plaintiff allows thecourts some greater separation in time between the political resolutionand the judicial review.” 188 Over 180 years ago at a Massachusettsconstitutional convention, Justice Story argued forremoval of the advisory opinion provision from that state’s constitutionbecause of the great danger that the justices would giveopinions in circumstances “exclusively of a political character,” believingthat such an obligation would be destructive of an independentjudiciary. 189Advisory opinions are at odds with both the court’s constitutionalexercise of judicial power and with the constitutional designof separation of powers, but it is, for better or worse, a constitutionalobligation of the justices of the Rhode Island SupremeCourt. 190 In the 1960’s, however, the justices interpreted that obligationin a manner that took the separation of powers into consideration,making the advisory opinion fit more comfortably withthe concepts of judicial power, an independent judiciary and separationof powers. 191 These limitations permitted the justices to assisteach of the coordinate branches by giving legal adviceconcerning the performance of their own constitutional duties, andremoved any temptation for the Legislature to conscript the jus-186. Id.187. Id. at 833-34.188. Id. at 834.189. Opinion of the Justices of the Supreme Judicial Court Given Underthe Provisions of Section 3 of Article VI of the Constitution, 343 A.2d 196, 200n. 3 (Me. 1975) (quoting the Journal of Debate and Proceedings in the MassachusettsConstitutional Convention: 1820-1821 489-90 (1853)).190. R.I. CONST. art. X, § 3.191. See Opinion to the House of Representatives, 208 A.2d 126, 127 (R.I.1965); Opinion to the Governor, 191 A.2d 611, 613-14 (R.I. 1963); supra PartI.B.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM160 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123tices into service in a dispute with the Governor, or for the Governorto likewise enlist them against the Legislature. 192 As a result,the executive and legislative departments had access to the justices’expert legal advice if they wanted their counsel. Both wereprevented from interfering with the duties constitutionally committedto the other branch, and the Judiciary was permitted animportant measure of independence and distance from politicaldisputes between the other two constitutional departments.This constitutionally desirable, permissible and defensible interpretationof article 10, section 3 was accomplished by construingthe constitutional phrase “any question of law . . . requested bythe governor or by either house of the general assembly” 193 in lightof article 5’s separation of powers command. But that very samelanguage is the only source of the justices’ authority to render adviceto a coordinate branch of state government. They are not constitutionallyauthorized to render such advice outside of article 10,section 3, and whatever limitations their interpretation of its languageplaces on their obligation to provide advice also apply tolimit their constitutional authority as members of the judicialbranch to render nonbinding, non-judicial advice to the Governorand the Legislature. If their interpretation of the text limits theirobligation to respond, it also limits their authority to respond. Iftheir interpretation places some questions beyond their constitutionalobligation, it places those questions beyond their constitutionalauthority.The justices’ discretionary exercise of the “public importance”exception wholly ignores the question of the Court’s authority.While it effectively neutralizes the abilities of the other branchesto conscript the justices into an inter-branch dispute, it is farworse that they voluntarily join such a battle and take sides. Evenmore troubling, no attempt is made to fit this purported discretionaryauthority into the justices’ prior interpretation of the constitutionaltext or its rationale, nor is such a fit readilyimaginable. An appellate court:is limited in its interpretation of the constitution only byself-restraint responding to legal tradition and the claimsof moral duty. . . . The legitimacy of judicial decrees de-192. See Opinion to the Governor, 191 A.2d at 614.193. R.I. CONST. art. X, § 3.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 161pends . . . in considerable part on public confidence thatthe judges are predominantly engaged not in making personalpolitical judgments but in applying a body of law. 194The “public importance” exception does not fit at all with thejustice’s interpretation and definition of “any question of law.” Eithera question meets the criteria for a question of law under article10, section 3 as defined by the justices, or it does not. Toeffectively interpret any “question of law” to mean any question oflaw that meets the constitutional criteria the justices have declaredand any other question the justices might think is important,risks the perception, true or not, of the justices “makingpersonal political judgments” rather than applying a body of lawin a judicial manner. 195 Justice Rehnquist has written of theUnited States Supreme Court’s exercise of its judicial power:Much as “Caesar had his Brutus; Charles the First hisCromwell,” Congress and the States have this Court toensure that their legislative Acts do not run afoul of thelimitations imposed by the United States Constitution.But this Court has neither a Brutus nor a Cromwell toimpose a similar discipline on it. While our “right of expoundingthe Constitution” is confined to “cases of a JudicialNature,” we are empowered to determine forourselves when the requirements of Art. III are satisfied.Thus, “the only check upon our own exercise of power isour own sense of self-restraint.” I do not think the Court,in deciding the merits of appellant’s constitutional claim,has exercised the self-restraint that Art. III requires in thiscase. 196The same could be said of the Rhode Island justices’ exerciseof the advisory power of article 10, section 3 under the public importanceexception.V. CONCLUSIONAdvisory opinions, like all opinions, “are only as long and as194. Topf, supra note 94, at 249.195. Id.196. Orr v. Orr, 440 U.S. 268, 300 (1979) (Rehnquist, J., dissenting) (citationsomitted) (emphasis added).

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM162 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123strong as the reasoning that props them up.” 197 There is virtuallyno reasoning propping up the justices’ claim that the state constitution’sdeclaration – “[t]he judges of the supreme court shall givetheir written opinion upon any question of law whenever requested”198 – obligates them to answer some questions, but givesthem discretion to answer others. If the “question[s] of law” referredto in article 10, section 3 are limited, as the justices havesaid they are, then both obligation and authority are limited.The public importance exception applies only when onebranch of government seeks an advisory opinion about what theother branch should have done or should be doing. When the exceptionis exercised the justices voluntarily inject themselves intoa highly political contest – the precise result the initial limitationswere meant to avoid. The justices would be better off to interpret“any question of law” to mean any question of law without limitation,because then it would be their constitutional duty to participatein such a dispute, rather than their choice.Because of the nonbinding nature of advisory opinions, however,the justices “are at liberty to change their minds, to follow adifferent path in later cases . . . and to become better educatedabout what they themselves have said about the subjects addressedin these opinions when future matters arise concerningthese same legal issues.” 199 Although the justices, as members ofthe court of last resort and final arbiter of the meaning of the stateconstitution, have the power to continue to utilize the public importanceexception, it is respectfully submitted they have notdemonstrated the constitutional authority to do so. It has no placeunder the constitutional clause, and, therefore, in the state’s constitutionalscheme. To continue to exercise a power with no discernableconstitutional authorization in politically sensitivecircumstances, no matter how valuable and useful it may be, risksthe Court’s reputation for integrity and candor, and thus the public’sconfidence – its most vital assets. That is too steep a price forthe public importance exception.To borrow a phrase from the justices of the Commonwealth ofMassachusetts, “[n]ot only does the Constitution define the extent197. In re Advisory Opinion to the Governor, 732 A.2d 55, 110 (R.I. 1999)(Flanders, J.).198. R.I. CONST. art. X, § 3.199. Id.

BENDER VOL 10 ISSUE 1 PP 123 _ 1631/6/2005 1:33 PM2004] PUBLIC IMPORTANCE EXCEPTION 163of the duty of the Justices to furnish opinions, but it also limitstheir right to express them,” 200 and Justices are constitutionallyobligated to respect those limits “in order to safeguard the separationof powers.” 201 If the question falls without those limitations,“the [j]ustices are constitutionally constrained from rendering anadvisory opinion regardless of the importance of the particularquestions.” 202 Fidelity to constitutional limitations on the exerciseof power must be maintained even, and especially, by the judiciary;for if the judiciary will not, who will?200. Answer of the Justices to the Senate, 780 N.E.2d 444, 446 (Mass.2002).201. Id.202. Answer of the Justices to the Acting Governor, 686 N.E.2d 444, 446(Mass. 1997).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PMNotes and CommentsFit to be Tried: Bypassing ProceduralSafeguards to Involuntarily MedicateIncompetent Defendants to DeathINTRODUCTIONAs increasing numbers of mentally ill patients find themselveswithin the criminal justice system coupled with the readyavailability of antipsychotic medications capable of renderingthese patients competent to stand trial, courts are charged with aduty to safeguard the rights of mentally ill defendants against theprosecutorial interests of the state. Specifically, courts must prescribeexplicit standards and procedures for balancing a state’sprosecutorial interests with the liberty interests of those who areadjudged to be legally incompetent by virtue of a mental illness.Two recent cases coming out of the United States Court of Appealsfor the Eighth Circuit have grappled with this precise dilemma.In United States v. Sell, 1 a three judge panel of the EighthCircuit held that the government could involuntarily medicateCharles Sell, a mentally incompetent defendant charged with anon-violent felony, with antipsychotic drugs for the sole purpose ofrestoring his competency to stand trial. 2 Several months later thesame court relied partly upon its decision in Sell to conclude thatthe State of Arkansas could involuntarily medicate a condemnedmentally incompetent inmate to control his violent behavior, eventhough the medication would likely have the ancillary effect of1. 282 F.3d 560 (8th Cir. 2002), vacated by 539 U.S. 166 (2003).2. Id. at 572.165

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM166 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165rendering the inmate competent enough to be executed. 3In both Sell and Singleton, the Eighth Circuit premised itsholdings upon a fairly expansive interpretation of the UnitedStates Supreme Court’s doctrine concerning the limits secured bythe Due Process Clause upon a state’s power to subject mentallyill inmates to unwanted psychiatric medication. Although the SupremeCourt had addressed this issue on two prior occasions, 4 theguidelines established for lower courts to follow were unclear, ifnot contradictory. 5Accordingly, the Supreme Court reviewed theEighth Circuit’s holding in Sell, concluding that involuntarilymedicating a mentally incompetent defendant for the sole purposeof restoring trial competency does not, in principle, offend dueprocess. 6 However, because the Eighth Circuit paid too little attentionto how involuntary medication would impact Sell’s abilityto participate effectively in his own defense, the Supreme Courtvacated the Eighth Circuit’s judgment, reinstated the districtcourt’s involuntary medication order, and remanded the case for athorough determination of how the potential side-effects of antipsychoticmedication would affect Sell’s right to receive a fair trial. 73. Singleton v. Norris, 319 F.3d 1018, 1025-27 (8th Cir. 2003).4. See Riggins v. Nevada, 504 U.S. 127, 133-38 (1992) (distinguishingWashington v. Harper to hold that the forced administration of antipsychoticmedication during the defendant’s trial violated rights guaranteed by theSixth and Fourteenth Amendments); Washington v. Harper, 494 U.S. 210,227 (1990) (holding that treatment of a prisoner with antipsychotic drugsagainst his will without judicial hearing did not violate substantive due processwhere the prisoner was found to be dangerous to himself or others andtreatment was in the prisoner’s best medical interest).5. See infra Part II.A.3.6. See Sell, 539 U.S. at 179-80. The Supreme Court set out the standardas follows:[T]he Constitution permits the Government involuntarily toadminister antipsychotic drugs to a mentally ill defendant facingserious criminal charges in order to render that defendantcompetent to stand trial, but only if the treatment is medicallyappropriate, is substantially unlikely to have side effects thatmay undermine the fairness of the trial, and, taking account ofless intrusive alternatives, is necessary significantly to furtherimportant governmental trial-related interests.Id. at 179.7. Sell, 539 U.S. at 185-86; see infra Part I. In addition to the therapeuticbenefits of relieving the acute symptoms of psychosis, many types of antipsychoticdrugs are accompanied with severe and often debilitating sideeffects that can profoundly impact a patient’s ability to comprehend and ef-

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 167Although the Sell Court’s holding has (at least temporarily)prevented the government from medicating Sell, the decision mayprove a hollow victory for those who fear that psychiatric medicationwill no longer be used primarily for therapeutic purposes, butrather as an instrument employed by the state solely in furtheranceof its own prosecutorial interests. Indeed, these fears havebeen validated by the Supreme Court itself, as Sell unambiguouslystands for the proposition that a state may, use psychiatricmedication as a means of restoring trial competency, 8 a purposewholly unrelated to a mentally ill defendant’s need for treatment.Moreover, by virtue of the Supreme Court’s recent decision to denycertiorari in Singleton, 9 the Court has granted the states carteblanche to treat Sell as a license to administer antipsychotic drugsto mentally incompetent condemned inmates for the sole purposeof carrying out a death sentence.This note argues that the Supreme Court’s opinion in Sell requireslower courts to apply a unique hybrid of intermediate andstrict scrutiny in all cases involving the involuntary medication ofcriminal defendants who are mentally incompetent to stand trialby virtue of a treatable mental illness. Specifically, lower courtsmust entertain a four-part inquiry to balance a defendant’s interestswith that of the state. 10 This standard ultimately permitsstate officials to seek involuntary medication of mentally ill inmatesby proffering purposes related to treatment as a pretext formedication when the ultimate purpose is simply to further thestate’s prosecutorial interests.Part I of this Note will outline the procedural history of Sellleading up to its arrival in the Supreme Court. Part II will delineatethe important distinction between the need to medicate mentallyill inmates and others in institutional settings who pose afectively participate in the judicial process through which his fate will be decided.Harper, 494 U.S. at 229. The common side effects most relevant to theissue of preserving a defendant’s right to a fair trial are tardive dyskinesia(the involuntary movement of facial muscles), acute dystonia (severe involuntaryspasms of the upper body, tongue, throat, or eyes), akathesia (motorrestlessness or the inability to sit still), id. at 229-30, parkinsonism (involuntarytremor of limbs, slowed speech, and abnormal facial expressions), andsevere sedation. Riggins, 504 U.S. at 142-43 (Kennedy, J., concurring).8. See Sell, 539 U.S. at 179-80.9. Singleton v. State, 540 U.S. 832 (2003).10. See infra Part III.B.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM168 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165danger to themselves on the one hand, and the desire of prosecutorsto use psychiatric drugs to restore trial competency so thatthe defendant may be convicted despite his or her true mental capacityon the other. Specifically, because courts must safeguard apretrial detainee’s right to receive a fair trial, the Supreme Court’scase law prior to Sell strongly suggested that lower courts shouldsubject all requests to medicate pretrial detainees to a strongerlevel of judicial scrutiny than in cases involving convicted inmates.11 Part III will analyze how the Supreme Court’s holding inSell incorporates elements of both intermediate and strict scrutinyas the Court struggles to strike a compromise between the government’sinterest in prosecuting serious crimes and an individual’sliberty interest in refusing unwanted medication.Additionally, Part III will demonstrate how the Sell Court obfuscatesthe essential distinctions between medicating inmates tomitigate their propensity for dangerousness and medicating solelyfor trial competency purposes. Finally, Part IV will assert that theSupreme Court has failed to prescribe uniform standards inmeasuring the competency of mentally ill inmates residing ondeath row. Because of the lack of uniform standards in measuringthe competency of condemned inmates, lower courts may begin toexpand the Court’s holding in Sell into a justification to medicatementally incompetent condemned inmates for the sole purpose ofrestoring competency for execution.I. FACTS AND TRAVEL OF SELL V. UNITED STATESIn the spring of 1997, Dr. Charles Sell, a practicing dentistwith an extensive history of mental illness, was indicted on multiplecounts of Medicaid fraud and money laundering. 12 After beingdiagnosed with a severe mental illness, a federal district courtfound that Sell was incapable of assisting in his own defense, thusdeclaring him incompetent to stand trial. 13 During the course ofhis detention in a prison hospital, Sell’s psychiatrists concludedthat he was in need of antipsychotic medication. 14 Because Sell refusedto accept any form of treatment for his mental illness, prison11. See infra Part II.A.12. Sell, 539 U.S. at 170.13. United States v. Sell, 282 F.3d 560, 563 (8th Cir. 2002), vacated by539 U.S. 166 (2003).14. Id. at 563.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 169officials initiated an administrative hearing in order to determinewhether Sell could be involuntarily medicated. 15 At the conclusionof the hearing, the reviewing psychiatrist approved the involuntarymedication order upon concluding that Sell was “mentally illand dangerous,” and that medication was necessary in order to restoreSell’s competency to stand trial. 16 In August, 2000, a federalmagistrate reviewed and affirmed the government’s order authorizinginvoluntary medication. 17 Upon further review, however, adistrict court judge reversed the magistrate’s finding that Sell’sdangerousness justified involuntary medication, but nonethelessheld that the government could medicate Sell for the sole purposeof restoring trial competency. 18In March, 2002, the Eighth Circuit affirmed the districtcourt’s holding that the government could medicate Sell on thesole grounds of restoring trial competency. 19 After concluding thatthe government’s interest in bringing Sell to trial outweighed hisliberty interest to refuse unwanted medication, 20 the Eighth Circuitheld that the decision to medicate Sell was medically appropriate,and that the benefits of restoring Sell’s competencyoutweighed the potential risk that the side effects of antipsychoticdrugs might impair his ability to participate effectively in his owndefense at trial. 21The Supreme Court granted certiorari to examine the limitedissue of whether the government could medicate Sell solely for thepurpose of restoring his competency to stand trial for “non-violentoffenses.” 22 In the wake of the Eighth Circuit’s holding in Sell, theSupreme Court was faced with the task of determining the circumstancesunder which the government’s interest in prosecutingalleged crimes could, in theory, override an individual’s constitutionalright to refuse unwanted medication under the Due ProcessClause. 23 Moreover, the Court was charged with the daunting task15. Sell, 539 U.S. at 171.16. Id. at 171-72.17. Id. at 173.18. Id. at 173-74.19. Id. at 174.20. Sell, 282 F.3d at 568 (defining the government’s interest in restoringSell’s competency so that he may be brought to trial as “paramount”).21. Id. at 570-72.22. Sell, 539 U.S. at 175.23. Id. at 177.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM170 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165of ascertaining the degree to which the administration of powerfulantipsychotic drugs might impair Sell’s constitutional right to receivea fair trial. 24 To comprehend these critical issues, one mustfirst examine the Court’s prior case law concerning the constitutionallimitations on a state’s power to medicate mentally ill patientswithin the context of the criminal justice system.II. INVOLUNTARY MEDICATION UNDER THE DUE PROCESS CLAUSEA. Substantive Due Process Prior to Sell1. Washington v. Harper 25Because the Supreme Court has declared that all persons enjoya significant liberty interest in avoiding unwanted medicaltreatment of any kind, 26 the involuntary medication of the mentallyill must comport with the minimal standards of substantivedue process. 27 On the one hand, states are often justified in imposingtreatment upon mentally disabled persons who are incapableof making rational decisions concerning their own medical treatment.28 In such cases, a state may certainly invoke its parens patriaepower by imposing treatment upon a mentally ill personagainst his will to protect both the mentally ill person and thecommunity from that person’s dangerous tendencies. 29 On theother hand, the judiciary has historically played an essential rolein ensuring that a state’s power to impose treatment upon thementally disabled is used narrowly in the furtherance of publichealth and safety, and not simply to further some other hiddenpurpose. 30 There are, however, instances where a mentally ill person’sneed for treatment and a state’s police powers intersect, suchas when a mentally ill person would pose a danger to himself or24. See id. at 180.25. Washington v. Harper, 494 U.S. 210 (1990).26. Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).27. See Harper, 494 U.S. at 221-22.28. See Youngberg v. Romeo, 457 U.S. 307, 317 (1982).29. Addington v. Texas, 441 U.S. 418, 426 (1979); see also Sell, 539 U.S.at 178.30. See O’Connor v. Donaldson, 422 U.S. 563, 574 n.10 (1975) (“Where‘treatment’ is the sole asserted ground for depriving a person of liberty, it isplainly unacceptable to suggest that the courts are powerless to determinewhether the asserted ground is present.”).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 171others if left untreated. In those instances, the state’s power toimpose treatment is at its highest. 31The case of Washington v. Harper was the first in which theSupreme Court dealt with the issue of a state’s authority to involuntarilymedicate a convicted inmate suffering from a severe mentalillness. 32 Harper involved the constitutionality of a state policymandating involuntary medication for inmates “suffer[ing] from a‘mental disorder,’” who were “‘gravely disabled’ or pose[d] a ‘likelihoodof serious harm’” to themselves or others. 33 Although theCourt in Harper conceded that an inmate has “a significant libertyinterest in avoiding the unwanted administration of antipsychoticdrugs,” 34 the Court held that an inmate’s liberty interest could beoutweighed by the state’s legitimate and important interest inmaintaining safety and security within a penal institution. 35Moreover, while acknowledging the plethora of potentially harmfulside effects commonly associated with most forms of antipsychoticmedication, the Court concluded that involuntarymedication was a far more appropriate method of controlling amentally ill inmate’s behavior than the prolonged use of physicalrestraints or isolation. 36 Therefore, the Court held that the DueProcess Clause allows a state to involuntarily medicate a mentallyill inmate after finding that the inmate is “dangerous to himself orothers and [that] the treatment is in the inmate’s medical interest.”37The Court rejected Harper’s argument that the state “may notoverride his choice to refuse antipsychotic drugs” in the absence ofa finding that he was incompetent to make rational decisions concerninghis own treatment. 38 Rather, because a state’s desire tomedicate a dangerous, mentally ill inmate is “reasonably relatedto legitimate penological interests” in maintaining institutionalsafety, 39 the Court held that Harper’s case was on point with priorcases in which the Court applied a rational basis test to decisions31. See id. at 582; Addington, 441 U.S. at 426.32. See Harper, 494 U.S. at 213.33. Id. at 215.34. Id. at 221.35. Id. at 225.36. Id. at 226-27.37. Id. at 227.38. Id. at 222.39. Id. at 224 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM172 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165made by state officials concerning the care and treatment of individualsconfined in state institutions. 40 Most significantly, thestate’s interest in medicating Harper was at its highest becausethe prison regulation in question was exclusively applied to inmateswho had become dangerous as a result of a mental illness,and the underlying rationale was solely to medicate inmates “forno purpose other than treatment, and only under the direction of alicensed psychiatrist.” 41 Moreover, considering that prison officialsface the uniquely perilous task of regulating a state’s prison population,42 the Harper Court concluded that an administrative panelcomposed of medical professionals would be more qualified thanjudges and lawyers to determine when an inmate is in need of involuntarymedication. 43 Reasoning that the administrative reviewconducted by medical decision makers that was warranted by theHarper prison policy was adequate to protect prison inmates’ dueprocess interests, 44 the Court refused to intervene because the decisionto medicate Harper “was at all times consistent ‘with thedegree of care, skill, and learning expected of a reasonably prudentpsychiatrist . . . .’” 452. Riggins v. Nevada 46In contrast with Harper, in which the Court examined the circumstancesunder which a state could involuntarily medicate aconvicted inmate, 47 the Supreme Court was asked in Riggins v.Nevada to determine whether a state could prevent a pre-trial detaineecharged with capital murder from discontinuing treatmentfor a mental illness so as to preserve his competency to standtrial. 48 Because state officials never alleged that Riggins posed a40. Id. at 224-25.41. Id. at 226.42. Id. at 225 (“There are few cases in which the State’s interest in combatingthe danger posed by a person to both himself and others is greaterthan in a prison environment, which, ‘by definition,’ is made up of personswith ‘a demonstrated proclivity for antisocial criminal, and often violent, conduct.’”(quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984))).43. Id. at 231.44. Id. at 233.45. Id.46. Riggins v. Nevada, 504 U.S. 127 (1992).47. Harper, 494 U.S. at 210.48. Riggens, 504 U.S. at 132-33.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 173danger to himself or others within his prison setting, the sole justificationfor forced medication was Nevada’s interest in preventingRiggins from rendering himself incompetent to stand trial byallowing his mental illness to go untreated. 49 In deference to Nevada’sinterest in prosecuting a capital offense, the Riggins Courtopined that Nevada “might have been able to justify medically appropriate,involuntary treatment with the drug by establishingthat it could not obtain an adjudication of Riggins’ guilt or innocenceby using less intrusive means.” 50 This was a profoundstatement. The Riggins Court seemed to postulate that the holdingin Harper could conceivably be expanded to empower a state tomedicate an inmate for a purpose completely unrelated to medicaltreatment or prison safety. The Court annunciated this possibilityeven though the prosecution had not proven that it could not obtainan adjudication of Riggins’ guilt or innocence by using less intrusivemeans in that particular case. 51 Even more disturbing isthe fact that the Court’s hypothetical expansion of Harper wascompletely unnecessary because the pertinent issue facing theCourt was whether the side effects caused by the medication givento Riggins subjected him to unfair prejudice at trial. 52Unlike in Harper, where the state sought to medicate a convictedinmate, a state’s decision to medicate a pretrial detaineemust be examined in relation to the detainee’s right to a fairtrial. 53 For example, in holding that the State had not proven thatadministration of antipsychotic medication was necessary to accomplishan essential state purpose, or that the “substantial probabilityof trial prejudice in [Riggins] was justified,” 54 the RigginsCourt was deeply concerned with the fact that the side effects ofmany common antipsychotic drugs can adversely affect an individual’scognitive and communicative abilities so as to cast doubtupon the defendant’s ability to assist counsel, react to testimony,and to testify on his own behalf. 55 Moreover, in his concurring49. See id. at 130.50. Id. at 135.51. Id.52. Id. at 133 (stating that “Riggins’ core contention [was] that involuntaryadministration of Mellaril denied him ‘a full and fair trial’”).53. Id. at 140-41 (Kennedy, J., concurring).54. Id. at 138.55. Id. at 137-38; see also David M. Siegel et al., Old Law Meets NewMedicine: Revisiting Involuntary Psychotropic Medication of the Criminal De-

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM174 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165opinion, Justice Kennedy conveyed his fear that since many antipsychoticdrugs can cause an individual to become lethargic andseverely agitated, or to appear listless and apathetic, a jury mayunfairly pass judgment upon a defendant solely on the basis of hisdrug-induced demeanor. 56 Consequently, Justice Kennedy washighly skeptical that a state could ever justify the use of involuntarymedication as an appropriate method to restore trial competency.57 As such, the Court was particularly disturbed by the trialcourt’s refusal to allow Riggins to discontinue treatment for hismental illness even in light of inconclusive expert testimony as towhether involuntary treatment was even necessary in maintainingRiggins’ competency to stand trial. 58 Accordingly, the Court refusedto defer to the trial court’s “laconic” finding that the state’sinterest in preserving Riggins’ competency simply outweighedRiggins’ right to refuse medication. 59In sum, the necessity of preserving a pretrial detainee’s rightto receive a fair trial juxtaposed with an already convicted inmatesinterest in refusing medication distinguishes Riggins fromHarper. As such, the Harper Court had little reason to secondguess the assertions made by Harper’s prison psychiatrists thatthe need to pacify his violent behavior with medication simplyoutweighed whatever unpleasant side effects he would experience.fendant, 2001 WIS. L. REV. 307, 326-27 (2001).56. See Riggins, 504 U.S. at 142 (Kennedy, J., concurring); see also Siegelet al., supra note 55, at 327 n.111. A defendant’s in-court demeanor can beespecially crucial in capital murder cases because many juries may be moreinclined to vote in favor of imposing the death penalty when the side effects ofantipsychotic medication cause a defendant to appear remorseless and apathetic.State v. Garcia, 658 A.2d 947, 974-75 (Conn. 1995) (Berdon, J., concurring).This is also an especially vital concern in cases where the defendant isattempting to prove lack of mental capacity as an affirmative defense. Id. at975 (Berdon, J., concurring).57. See Riggins, 504 U.S. at 141 (Kennedy, J., concurring). Justice Kennedystated:In my view elementary protections against state intrusion requirethe State in every case to make a showing that there isno significant risk that the medication will impair or alter inany material way the defendant’s capacity or willingness toreact to the testimony at trial or to assist his counsel. Basedon my understanding of the medical literature, I have substantialreservations that the State can make that showing.Id.58. Id. at 130-31, 136-37.59. Id. at 136.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 175However, the administration of antipsychotic medication to maintaintrial competency entails a plethora of risks not otherwise associatedwith the inducement of “some bare level of functionalcompetence.” 60 Likewise, while a psychiatrist may have been in abetter position to determine the propriety of involuntary medicationin Harper, the impact a particular drug might have upon adefendant’s ability to present an effective and vigorous defense toa criminal charge is an issue not to be deferred to psychiatristswho are otherwise ignorant as to the complexities of a criminaltrial, but is best resolved by the attorneys and judges who participatein the trial process itself. 61 Therefore, Riggins stands for theproposition that a court may not authorize the involuntary medicationof a pretrial detainee without specific evidence of a “compelling”or “essential” state interest, 62 and that the detainee cannotbe brought to trial through “less intrusive means.” 633. Conflicting Standards of Judicial Scrutiny in the Aftermath ofRigginsThe Court’s opinion in Riggins has been widely noted for itsfailure to prescribe a precise standard of judicial scrutiny for casesinvolving the involuntary medication of pretrial detainees. 64 Althoughthe Riggins Court held that Nevada’s desire to medicate adefendant charged with capital murder was not “necessary to accomplishan essential state policy,” 65 the Court explicitly deniedthat it was adopting any standard of judicial review, let alonestrict scrutiny. 66The Riggins Court’s equivocation, however, has not escapedcriticism. In his dissenting opinion in Riggins, Justice Thomas60. Riggins, 504 U.S. at 141 (Kennedy, J., concurring).61. See id. at 141 (Kennedy, J., concurring) (“Indeed, the inquiry itself iselusive, for it assumes some baseline of normality that experts may havesome difficulty in establishing for a particular defendant, if they can establishit at all.”).62. Id. at 138.63. Id. at 135.64. See, e.g., Siegel et al., supra note 55, at 326; Aimee Feinberg, Note,Forcible Medication of Mentally Ill Criminal Defendants: The Case of RussellEugene Weston, Jr., 54 STAN. L. REV. 769, 775 (2002); William B. Bystrynski,Note, Riggins v. Nevada: Toward a Standard for Medicating the IncompetentDefendant to Competence, 71 N.C. L. REV. 1206, 1220 (1993).65. Riggins, 504 U.S. at 138 (emphasis added).66. Id. at 136.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM176 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165balked at the majority’s insistence that it had not adopted a standardof strict scrutiny. 67 In support of his view that the majorityhad essentially applied a strict scrutiny analysis, Justice Thomashighlighted the majority’s requirement that Nevada’s interest inmaintaining Riggins’ trial competency must rise to the level of acompelling state interest, and that Nevada was required to provethat the proposed medication was the least intrusive means availablein bringing Riggins to trial. 68 Because the terminology employedby the Riggins Court usually implies the application ofstrict scrutiny, 69 Justice Thomas was quite justified in his refusalto believe the majority’s denial that it was not adopting a strictscrutiny standard of review.Justice Thomas was not alone in refusing to take the RigginsCourt’s majority at face value. In United States v. Brandon, 70 forinstance, the United States Court of Appeals for the Sixth Circuitheld that all petitions to medicate a pretrial detainee must survivestrict scrutiny. 71 Beginning from the premise that the government’srequest to medicate a pretrial detainee implicates a “fundamentalright to be free from bodily intrusion,” 72 the SixthCircuit concluded that the Riggins Court had “alluded to a strictscrutiny approach.” 73 While acknowledging that the Riggins Court67. See id. at 156 (Thomas, J., dissenting).68. Id. at 156-57 (Thomas, J., dissenting).69. E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 237-38(1995) (holding that under strict scrutiny, states may not use “benign” racialclassifications except in the furtherance of a compelling state interest, andonly after the consideration of “race neutral” alternatives); Palmore v. Sidoti,466 U.S. 429, 432-33 (1984) (holding that in applying strict scrutiny to racialclassifications, such classifications “must be justified by a compelling governmentalinterest and must be ‘necessary . . . to the accomplishment’ of theirlegitimate purpose” (quoting McLaughlin v. Florida, 379 U.S. 184, 196(1964))); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978) (holdingthat racial classifications must further a “‘permissible and substantial’”state policy, and that the classifications must be “‘necessary . . . to the accomplishmentof [the state’s] purpose’” (quoting In re Griffiths, 413 U.S. 717, 721-22 (1973))); Roe v. Wade, 410 U.S. 113, 155 (1973) (holding that state intrusionsupon “fundamental rights” are valid only in the face of a “compellingstate interest,” and that such legislative intrusions must be “narrowly drawnto express only the legitimate state interests at stake”).70. United States v. Brandon, 158 F.3d 947 (6th Cir. 1998).71. Id. at 960.72. Id. at 957.73. Id.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 177had expressly declined to adopt a specific standard of review, 74 theSixth Circuit nonetheless concluded that Riggins stood for theproposition that the government’s request to medicate a pretrialdetainee must be “narrowly tailored to [further] a compelling governmentalinterest” in restoring the detainee’s trial competency. 75In addition, the Sixth Circuit distinguished the Riggins Court’sanalysis from the rational basis test applied in Harper, a case inwhich a state’s petition to medicate a mentally ill convicted inmatefound to be dangerous was held to be entitled to review undera rational basis test because the state’s interest was limited toa legitimate penological interest in maintaining prison safety. 76Unlike cases involving the involuntary medication of convictedinmates, where maintaining prison safety is a primary concern,the Sixth Circuit concluded that the government’s goal in Brandonwas not to maintain prison safety, but rather to “render[] [the defendant]competent to stand trial in a proceeding that is fair toboth parties.” 77 In such circumstances, strict scrutiny was held tobe the proper standard. 78 Therefore, in light of Justice Thomas’dissent in Riggins and the Sixth Circuit’s astute analysis in Brandon,Sell’s argument before the Supreme Court – that his case requiredthe application of strict scrutiny – was not without merit. 79Conversely, the equivocal language of the Supreme Court inRiggins led the Eighth Circuit in Sell to conclude that the government’srequest to medicate Sell did not trigger strict scrutiny,but rather a lower form of “heightened” scrutiny. 80 However, the74. Id. at 959.75. Id. at 960. The Brandon Court supported its holding with a quotefrom Riggins: “Nevada certainly would have satisfied due process if . . . thedistrict court had found . . . that treatment with antipsychotic medicationwas medically appropriate and, considering less intrusive alternatives, essentialfor the sake of Riggins’ own safety or the safety of others.” Id. (quotingRiggins, 504 U.S. at 135 (emphasis added)).76. Id. at 957 (citing Washington v. Harper, 494 U.S. 210, 223 (1990)).77. Id. at 960.78. See id.79. See Brief of Petitioner at 35-37, Sell v. United States, 539 U.S. 166(2003) (No. 02-5664).80. United States v. Sell, 282 F.3d 560, 567 n.3 (8th Cir. 2002) (“[W]e believethat we must apply some sort of heightened standard of review, butunlike the Sixth Circuit, we do not adopt the strict scrutiny standard.”), vacatedby 539 U.S. 166 (2003). The Eighth Circuit also supported its choice of aheightened scrutiny standard by mentioning that the Supreme Court deniedadopting a strict scrutiny test in Riggins; it also recognized, however, that

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM178 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165Eighth Circuit did not break new ground in its conclusion thatRiggins required something less than strict scrutiny. Rather, theEighth Circuit relied heavily upon the opinion in United States v.Weston, 81 a case in which the United States Court of Appeals forthe District of Columbia applied a heightened scrutiny analysis tothe government’s request to medicate a mentally incompetent defendantcharged with capital murder. 82 Ironically, the languageused by the D.C. Circuit closely resembled a strict scrutiny analysis:“Accordingly, to medicate Weston, the government must provethat restoring his competence to stand trial is necessary to accomplishan essential state policy.” 83 Unlike the Sixth Circuit, however,the D.C. Circuit refused to give its test the label of strictscrutiny, despite the fact that the terminology employed by bothcircuits is virtually identical. 84 Rather, the D.C. Circuit simplytook the Riggins Court at face value, acknowledging that it hadthe Court did not appear to apply any lesser, reasonableness-based test either.See id. (citing United States v. Weston, 255 F.3d 873, 888 (D.C. Cir.2001)).81. United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001).82. Id. at 880. The defendant in Weston was Russell Eugene Wilson, theinfamous “Capitol Hill Shooter” who had been charged with shooting and killingtwo officers of the United States Capitol Hill Police, and injuring a third.See id. at 874.83. Weston, 255 F.3d at 880 (emphases added).84. Compare id. (holding that, to medicate the defendant, “the governmentmust prove that restoring his competence to stand trial [was] necessaryto accomplish an essential state interest”), with United States v. Brandon,158 F.3d 947, 960 (6th Cir. 1998) (holding that the government must presenta “compelling” state interest, and that involuntary medication must be “narrowlytailored” to the furtherance of the government’s interest). The only facialdifference between Brandon and Weston is that the Sixth Circuit labelsthe requisite governmental interest as “compelling,” while the D.C. Circuitrequires an “essential” governmental interest. See Weston, 255 F.3d at 880;Brandon, 158 F.3d at 960. This seems to be a mere difference in semantics,however, because both terms are used interchangeably in Riggins. See 504U.S. 127, 136 (1992) (“Nor did the order indicate a finding that safety or othercompelling concerns outweighed Riggins’ interest in freedom from unwantedantipsychotic drugs”) (emphasis added); id at 138:To be sure, trial prejudice can sometimes be justified by an essentialstate interest. Because the record contains no findingthat might support a conclusion that administration of antipsychotic medication was necessary to accomplish an essentialstate policy, however, we have no basis for saying that thesubstantial probability of trial prejudice in this case was justified.Id. (citations omitted) (emphases added).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 179not endorsed the application of strict scrutiny, appearances to thecontrary notwithstanding. 85Following in the footsteps of the D.C. Circuit, the Eighth Circuitin Sell held that the government may not involuntarily medicatea pretrial detainee in the absence of an “essential stateinterest that outweighs the individual’s interest in remaining freefrom medication.” 86 The Eighth Circuit further held that involuntarymedication must also be narrowly tailored in furtherance ofthe state interest, that there be “no less intrusive way of fulfillingits essential interest.” 87 The Eighth Circuit labeled its test as“some sort of heightened standard of review,” as opposed to strictscrutiny. 88Even if the terminology employed by the circuit courts in Selland Weston would seemingly imply the application of strict scrutiny,a closer review of the respective opinions will reveal that neithercourt employed the “searching judicial inquiry” requiredunder a strict scrutiny analysis. 89 For example, in concluding thatinvoluntary medication was narrowly tailored to the government’sinterest in restoring Sell’s competency to stand trial, 90 the EighthCircuit simply deferred to the opinions given by Sell’s prison psychiatriststhat involuntary medication was the least intrusivemethod of fulfilling the government’s interest in restoring Sell’scompetency to stand trial. 91 In deferring to the government’s psychiatrists,however, the Eighth Circuit paid little attention to evidenceprovided at trial by Sell’s personal psychiatrist thatantipsychotic medication was not an appropriate method of treatingSell’s condition. 92 In endorsing the conclusions given by thegovernment’s experts, the Eighth Circuit provided no explanationof why it found the government’s conclusions to be more persua-85. Weston, 255 F.3d at 880 (noting that under Riggins, the governmentmust present an “overriding justification” for involuntary medication, andthat the medication must be “necessary to accomplish an essential state policy”(quoting Riggins, 504 U.S. at 135)).86. Sell, 282 F.3d at 567.87. Id.88. Id. at 567 n.7.89. See e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236(1995).90. Sell, 282 F.3d at 568.91. See id.92. See id. at 564.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM180 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165sive than the expert testimony given on Sell’s behalf. 93Likewise, the D.C. Circuit in Weston simply deferred to theopinions given by the government’s expert witnesses that involuntarymedication was necessary to bring Weston to trial, while givingno consideration to conflicting expert testimony thattreatment with antipsychotic medication would be ineffective. 94Moreover, both circuit courts seemed to place a burden upon bothWeston and Sell of proving that trial competency could be restoredthrough less intrusive alternatives. 95 However, in applying thestrict scrutiny analysis established by the Sixth Circuit in Brandon,96 a federal district court concluded that the testimony givenby a prison psychiatrist was insufficient to establish that involuntarymedication was narrowly tailored to the government’s interestin bringing an incompetent pretrial detainee to trial becausethe psychiatrist provided no basis for his conclusion and failed todiscuss the full range of relevant medical research. 97 In contrast tothe circuit courts in Weston and Sell, the district court did notburden the detainee with proving that trial competency could berestored through less intrusive, non-drug alternatives. 98Thus, in the wake of Riggins, the terminology used by thevarious courts is remarkably similar: a pre-trial detainee may beinvoluntarily medicated only in furtherance of a ‘compelling’ or93. See id.94. See United States v. Weston, 255 F.3d 873, 882-83 (D.C. Cir. 2001);see also United States v. Weston, 134 F. Supp. 2d 115, 122-23 (D.D.C. 2001),aff’d on other grounds, 225 F.3d 873 (D.C. Cir. 2001).95. See Weston, 255 F.3d at 882; Sell, 282 F.3d at 568.96. 158 F.3d 947, 960 (6th Cir. 1998) (holding that to justify forciblemedication of a non-dangerous pretrial detainee for the purpose of restoringhis competence to stand trial, the government must present a “compelling”state interest, and the involuntary medication must be “narrowly tailored” tothe furtherance of the government’s interest).97. United States v. Santonio, No. 2:00-CR-90C, 2001 U.S. Dist. LEXIS5892, at *10-13 (D. Utah May 4, 2001); see also Woodland v. Angus, 820 F.Supp. 1497, 1511-12 (D. Utah 1993) (applying strict scrutiny and holding thatthe State of Utah failed to prove “to a reasonable degree of medical certainty”that involuntary medication would restore a defendant’s trial competency becausethe state’s psychiatrists could not “promise” or “guarantee” that theproposed medication would successfully restore the defendant’s competency).98. See Santonio, 2001 U.S. Dist. LEXIS 5892, at *13. Instead, the courtin Santonio required the government to prove that it could not “obtain an adjudicationof the pretrial dentainee’s guilt or innocence using any othermeans.” Id. This factor weighed against the prosecution when it produced noevidence with regard to such proof. Id.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 181‘essential’ state interest, and the medication must be the ‘least intrusive’or ‘necessary’ means of furthering the state’s prosecutorialinterest. However, the actual substance behind the abstract terminologyis contingent upon whether the reviewing court definesits standard of review as ‘strict’ or ‘heightened’ scrutiny. In otherwords, courts that have construed Riggins as requiring the applicationof strict scrutiny have been more emboldened to distrustthe assertions of government psychiatrists that involuntary medicationwith antipsychotic drugs is the only means available to restoretrial competency. Conversely, courts applying a lower‘heightened’ standard of review have been disinclined to secondguess the opinions given by the government’s psychiatrists, whilefurther burdening an incompetent pre-trial detainee with the obligationof proving that trial competency could be restored throughless intrusive alternatives. Despite the disparities in the applicationof Riggins, there has been a general consensus among mostcourts that the standard of review in cases involving a nondangerouspretrial detainee must be higher than the rational basistest established in Harper for medicating dangerous inmateswho have already been tried and convicted of crimes. 9999. E.g., United States v. Gomes, 298 F.3d 71, 82 (2d Cir. 2002) (holdingthat “heightened, but not strict, scrutiny is the appropriate standard for determiningwhen a non-dangerous criminal defendant may be forcibly medicatedwith antipsychotic drugs for the purpose of rendering him competent tostand trial), vacated by 539 U.S. 939 (2003), order aff’d, 387 F.3d 157 (2d Cir.2004); United States v. Sell, 282 F.3d 560, 567 n.7 (8th Cir. 2002) (“Like oursister courts, we believe that we must apply some sort of heightened standardof review, but . . . we do not adopt the strict scrutiny standard.” ), vacated by539 U.S. 166 (2003); Weston, 255 F.3d at 880 (concluding that Riggins requiredthe application of “some form of heightened scrutiny,” which wassomething more than the reasonableness test of Harper as it pertained tonon-dangerous pretrial detainees); see also State v. Jacobs, 828 A.2d 587, 589(Conn. 2003); State v. Garcia, 658 A.2d 947, 966-67 (Conn. 1995), rev’d onother grounds, Jacobs, 828 A.2d at 588-89; State v. Odiaga, 871 P.2d 801,804-05 (Idaho 1994).At least one court, however, has seen no distinction between Harperand Riggins, holding that a petition to medicate a pretrial detainee solely forthe purpose of restoring trial competency should merely be subjected to areasonableness standard under Harper, because restoring trial competency isa “legitimate incident of institutionalization.” Khiem v. United States, 612A.2d 160, 168 (D.C. 1992) (quoting United States v. Charters, 863 F.2d 302,305 (4th Cir. 1988)).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM182 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165III. THE SUPREME COURT SPEAKS AGAIN: SELL V. UNITED STATESA. ProlegomenonAs noted above, the disparate standards of judicial reviewemployed by the lower courts were a product of the SupremeCourt’s equivocation in Riggins. However, unlike in Riggins wherethe Court “ha[d] no occasion to finally prescribe . . . substantivestandards” of review, 100 the Court in Sell was faced with an opportunityto resolve the existing confusion among the lower courtsonce and for all by determining the standard of judicial review towhich a mentally incompetent detainee facing the threat of involuntarymedication is constitutionally entitled. 101 The Sell Courtseized this opportunity by attempting to establish a clear and explicitstandard of judicial scrutiny to be applied whenever a stateseeks to forcibly medicate a pretrial detainee for the sole purposeof restoring or maintaining trial competency. 102In reality, the Sell Court’s analysis is no less equivocal thanthat of the Riggins Court. In deciphering the Sell Court’s analysis,it becomes clear that Sell requires lower courts to apply a hybridof both intermediate and strict scrutiny in determining when astate’s prosecutorial interests can override a pretrial detainee’sliberty interest in refusing unwanted medication. As argued below,the Supreme Court’s holding in Sell has significantlystrengthened a state’s authority to use psychiatric medication tofurther policies and goals that are unrelated to the therapeutic interestsof mentally ill inmates. Moreover, the Sell Court’s opinionmay enable overzealous prosecutors to obfuscate the importantdistinctions between involuntarily medicating an inmate to mitigatedangerousness and using psychiatric medication to restoretrial competency. Consequently, the prison psychiatrists who areresponsible for treating mentally incompetent inmates may becomeunwitting accomplices to a state’s plan to use the therapeuticbenefits of psychiatric medication as a crude method to furtherits prosecutorial goals.100. Riggins, 504 U.S. at 136.101. See Sell v. United States, 539 U.S. 166, 179 (2003).102. See id. at 179-80; see also supra note 4 and accompanying text.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 183B. Basic PrinciplesThe Supreme Court in Sell granted certiorari to decide the issueof whether the government’s petition to medicate Sell for thesole purpose of rendering him competent to stand trial for “nonviolentoffenses” deprived Sell of an important liberty interest protectedby the Due Process Clause. 103 The Court held that, in principle,the government may involuntarily medicate a mentally illdefendant “facing serious criminal charges” for the sole purpose ofrestoring trial competency. 104 With this holding, the Sell Courtunambiguously acknowledged that a state may premise its desireto medicate a mentally ill detainee upon a motivation unrelated tothe individual’s best medical interests. The Sell Court’s holding isa distinct and significant departure from the analysis in Harper,in which the Court justified the involuntary medication of a convictedinmate for the purpose of mitigating his dangerous propensitybecause the state’s interest in maintaining safety within apenal institution was closely related, if not identical, to Harper’sown personal therapeutic needs. 105In contrast with Harper, the Sell Court’s holding establishedthe following four-prong test to determine whether involuntarymedication is appropriate in an individual case: 1) a state’s petitionto medicate must be in furtherance of an “important governmentalinterest[];” 2) there must be a finding that involuntarymedication will “significantly further” the state’s proffered interest;3) involuntary medication must be “necessary” to further thestate’s proffered interest; and 4) the proposed medication must bedeemed “medically appropriate.” 106 Clearly, the Sell Court failed toprescribe an unambiguous standard of review; rather, Sell appro-103. Sell, 539 U.S. at 175.104. Id. at 179.105. Washington v. Harper, 494 U.S. 210, 225-26 (1990). The HarperCourt further stated that the prison’s institutional policy of involuntarilymedicating dangerous inmates wasa rational means of furthering the State’s legitimate objectives.Its exclusive application is to inmates who are mentallyill and who, as a result of their illness, are gravely ill or representa significant danger to themselves or others. The drugsmay be administered for no purpose other than treatment, andonly under the direction of a licensed psychiatrist.Id. at 226 (emphasis added).106. Sell, 539 U.S. at 179, 180-81.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM184 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165priates the terminology of both intermediate and strict scrutiny. 107Moreover, the Sell Court seems to concur with Justice Kennedy’sskepticism in Riggins regarding the ability of judges and physiciansto deal adequately with the deleterious consequences thatantipsychotic medication may have upon a pretrial detainee’sright to a fair trial. 108C. Establishing the Strength of the Government’s ProsecutorialInterestUnder the first prong of the Sell Court’s test, a state must establishthat its petition to medicate an individual is pursuant toan important governmental interest. 109 Here, the Sell Court seemsto define the weight of the government’s prosecutorial interest underthe requirements of an intermediate scrutiny analysis. 110Moreover, the Sell Court retreated from its prior statements inRiggins that the involuntary medication of a pretrial detainee107. See id. at 179:[T]he Constitution permits the Government involuntarily toadminister antipsychotic drugs to a mentally ill defendant facingserious criminal charges in order to render that defendantcompetent to stand trial, but only if the treatment is medicallyappropriate, is substantially unlikely to have side effects thatmay undermine the fairness of the trial, and, taking accountof less intrusive alternatives, is necessary to further importanttrial-related interests.Id. (emphases added). The Court’s use of the words “substantially” and “important”appear to suggest an intermediate level analysis, while the phrase“less intrusive alternatives” implicates the narrowly tailored prong of a strictscrutiny analysis. See supra note 69.108. See id. at 179. In Riggins, Justice Kennedy asserted his view that theConstitution required the State, in each case, to prove that there was no significantrisk that the medication and its side effects would materially impairthe defendant’s capacity to assist in his own defense. Riggins v. Nevada, 504U.S. 127, 141 (1992) (Kennedy, J., concurring). He expressed “substantialreservations that the State can make that showing.” Id. Moreover, he calledthe inquiry “illusive,” and possibly something even experts would have difficultyestablishing, if it could be established at all. Id.109. Sell, 539 U.S. at 180 (“First, a court must find that important governmentalinterests are at stake.”).110. Cf. Clark v. Jeter, 486 U.S. 456, 461 (1988) (stating that intermediatescrutiny requires that classifications based on gender or illegitimacy must be“substantially related to an important governmental objective”) (emphasisadded); Craig v. Boren, 429 U.S. 190, 197 (1976) (requiring that gender-basedclassifications must further “important governmental objectives” in order topass muster under the Equal Protection Clause) (emphasis added).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 185must further a “compelling” or “essential” state interest. 111 By loweringthe weight of the required governmental interest from “compelling”or “essential” to “important,” it appears that the SellCourt capitulated to the Eighth Circuit’s lower standard ofheightened scrutiny. 112The Sell Court concluded that the government presumptivelyhas an important interest in prosecuting serious crimes againsteither persons or property. 113 However, the Court provided noguidance as to how lower courts should determine whether acrime is serious enough to warrant involuntary medication in individualcases. Nonetheless, the Court does not challenge theEighth Circuit’s conclusion that the charges of Medicaid and insurancefraud with which Sell faced could, in principle, be severeenough to warrant involuntary medication. 114 The Sell Court givesmuch more deference to the government’s prosecutorial interestthan the Riggins Court, for the Riggins Court simply rejected Nevada’spetition for involuntary medication while giving no considerationto Nevada’s interest in prosecuting a defendant chargedwith capital murder. 115Furthermore, in rejecting Sell’s argument that a pretrial detaineeenjoys a fundamental right to be free from unwanted medication,116 the Court reiterated its holding in Harper that anincarcerated person has only a “significant liberty interest” in re-111. See Riggins, 504 U.S. at 136, 138.112. See United States v. Sell, 282 F.3d 560, 567 n.3 (8th Cir. 2002) (“[W]ebelieve that we must apply some sort of heightened standard of review . . . .”),vacated by 539 U.S. 166 (2003); see also Sell, 539 U.S. at 179 (describing thefour-pronged heightened standard of review that does not quite rise to thelevel of strict scrutiny).113. Sell, 539 U.S. at 180.114. See id. (stating that while the government has an important interestin bringing an individual accused of a serious crime to trial, the inquiry ofwhat is “serious” depends upon the circumstances, which “may lessen the importanceof that interest”); Sell, 282 F.3d at 568 (characterizing the sixty-twocharges of fraud and single charge of money-laundering against Sell as “serious,”and implicating a “paramount” governmental interest in restoring Sell’scompetency to stand trial). But see id. at 574 (Bye, C.J., dissenting) (“[T]he[Eighth Circuit] majority inexplicably turns a blind eye to the apparentagreement of all parties that the fraud and money laundering charges aloneare insufficiently serious to warrant forcible medication.”).115. See Riggins, 504 U.S. at 138.116. See Brief of Petitioner at 35-37, Sell v. United States, 539 U.S. 166(2003) (No. 02-5664).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM186 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165fusing the administration of antipsychotic medication. 117 TheCourt’s characterization of Sell’s rights under due process as a“significant liberty interest” is of great significance. In general, aliberty interest that does not rise to the level of a “fundamentalright” can be overridden by a “legitimate” state interest. 118 In priorcases involving the involuntary care and treatment of mentally illand disabled persons, the Court has consistently characterized theright to refuse treatment as a mere “liberty interest,” while refusingto stamp such a right with the more lofty imprimatur of a“fundamental right.” 119By not labeling the right to refuse unwanted medical treatmenta “fundamental right,” the Court has generally concludedthat the judiciary has a very limited role in determining the precisemethods employed to care for the mentally ill because judgesare ill-equipped to second guess the decisions of trained professionals.120 Whenever the Court has found a mere “liberty interest”to be at stake, rather than a “fundamental right,” the treatmentdecisions made by a state’s officials have been granted an initial117. Sell, 539 U.S. at 178 (quoting Washington v. Harper, 494 U.S. 210,221 (1990)).118. See, e.g., Harper, 494 U.S. at 221-22, 225; Cruzan v. Mo. Dep’t ofHealth, 497 U.S. 261, 279 (1990); Youngberg v. Romeo, 457 U.S. 307, 321(1982).119. See, e.g., Cruzan, 497 U.S. at 278 (“The principle that a competentperson has a constitutionally protected liberty interest in refusing unwantedmedical treatment may be inferred from our prior decisions.”); Youngberg,457 U.S. at 318 (stating that in relation to a mentally retarded person institutionalizedby the state, “there is a constitutionally protected liberty interestin safety and freedom from restraint.”); Addington v. Texas, 441 U.S. 418,425 (1979) (“This Court repeatedly has recognized that [involuntary] civilcommitment for any purpose constitutes a significant deprivation of libertythat requires due process protection.”); O’Connor v. Donaldson, 422 U.S. 563,580 (1975) (“There can be no doubt that involuntary commitment to a mentalhospital, like involuntary confinement of an individual for any reason, is adeprivation of liberty which . . . must be justified on the basis of a legitimatestate interest.”).120. See Youngberg, 457 U.S. at 321-23.In his concurring opinion in O’Connor v. Donaldson, Chief JusticeBurger suggested that the states are under no obligation whatsoever to providetreatment for civilly committed patients, concluding instead that thestate’s police power in protecting society from the “significant antisocial acts”of severely mentally ill persons obliges the states only to provide civilly committedpatients with “a more humane place of confinement” than the oldfashionedjails and poorhouses in which the mentally ill had been historicallyconfined. 422 U.S. at 582-83 (Burger, C.J., concurring).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 187presumption of validity. 121 In such cases, therefore, the Court’sinitial attitude toward the aggrieved party’s complaint has beenmore dismissive than in cases where the Court has found the existenceof a “fundamental” right.Because a pretrial detainee’s right to refuse unwanted medicationunder substantive due process is no greater than the amorphous“liberty interest” of a convicted inmate to refuse treatmentunder Harper, 122 it appears initially that a pretrial detainee is entitledto no greater level of judicial scrutiny than a reasonablenessstandard. 123 Similarly, under the Sell Court’s analysis, the government’s“important” interest in prosecuting a “serious crime” isqualitatively similar to a state’s “legitima[te]” and “importan[t]”interest under Harper in medicating a dangerous inmate. 124 Conversely,in holding that a state must present a “compelling” or “essential”interest in overriding a pretrial detainee’s “libertyinterest” in refusing medication, 125 the Court in Riggins veeredaway from its prior body of case law which simply required a stateto present a “legitimate” interest when seeking to infringe upon asimple “liberty interest.” 126 Thus, by requiring only an “important”governmental interest vis-à-vis a pretrial detainee’s “liberty inter-121. See, e.g., Youngberg, 457 U.S. at 323 (stating that courts should notsecond-guess medical professionals who are better qualified than judges orjuries to make treatment decisions, and thus those professionals’ decisionsare “presumptively valid”); see also Harper, 494 U.S. at 222-23:The Policy under review requires the State to establish, by amedical finding, that a mental disorder exists which is likelyto cause harm if not treated. Moreover, the fact that the medicationmust first be prescribed by a psychiatrist, and then approvedby a reviewing psychiatrist, ensures that thetreatment in question will be ordered only if it is in the prisoner’smedical interests, given the legitimate needs of his institutionalconfinement. These standards, which recognizeboth the prisoner’s medical interest and the State’s interests,meet the demands of the Due Process Clause.Id.122. Harper, 494 U.S. at 221.123. See Khiem v. United States, 612 A.2d 160, 168-69 (D.C. 1992) (adoptingthe view that the government’s petition to medicate a pretrial detaineefor the sole purpose of restoring trial competency is subject only to a reviewfor “arbitrary and capricious action”).124. See Sell v. United States, 539 U.S. 166, 180 (2003); Harper, 494 U.S.at 225.125. Riggins v. Nevada, 504 U.S. 127, 136, 138 (1992).126. See, e.g., Harper, 494 U.S. at 221, 225.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM188 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165est,” 127 the Sell Court, to some extent, corrected the anomaly createdby the Court’s analysis in Riggins. This departure fromRiggins may lend even greater support to the proposition that thescale has been tipped in favor of a standard of judicial scrutinywhich is generally deferential to the government’s desire to administermedication to a mentally incompetent detainee.It must be emphasized, however, that under Sell, a state isrequired to present an important governmental interest before apre-trial detainee’s liberty interest in avoiding medication can beoverridden for the purpose of restoring trial competency. 128 TheSell Court reasoned that this is because a state’s interest in prosecutingserious crime can, under certain circumstances, be diminishedto such a degree as to eliminate the state’s need forinvoluntary medication altogether. 129 In particular, the Sell Courtconcluded that a state’s prosecutorial interest can be diminishedby the likelihood that the defendant could be subjected to futureconfinement under a civil commitment statute in lieu of a criminaltrial. 130 Although the Court acknowledged that “civil commitmentis [not] a substitute for a criminal trial,” 131 this was a victory forSell because the Court clearly rejected the government’s contentionthat medicating a mentally incompetent pretrial detainee forthe purpose of restoring trial competency was the only method ofsatisfying the government’s prosecutorial interests. 132Although the alternative of civil commitment may protect apretrial detainee’s liberty interest in bodily integrity, the SellCourt’s analysis may be flawed as it pertains to the defendant’sliberty interest in being free from physical confinement. Indeed,an individual who is confined under a civil commitment statutecan be confined indefinitely as long as he poses a danger to him-127. See Sell, 539 U.S. at 180.128. See id.129. Id.130. Id. In addition to the likelihood of indefinite confinement under acivil commitment regime, the Sell Court also suggested that the government’sprosecutorial interest may be diminished if the detainee was already confinedfor a significant period of time for which he would receive credit toward theimposed sentence upon conviction. Id.131. Id.132. See Brief for the United States (Respondent) at 24-26, Sell v. UnitedStates, 539 U.S. 166 (2003) (No. 02-5664); accord United States v. Weston,255 F.3d 873, 881-82 (D.C. Cir. 2001); United States v. Gomes, 289 F.3d 71,81 (2d Cir. 2002).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 189self or others if left unsupervised in the community. 133 Therefore,a pretrial detainee who is subjected to civil commitment in lieu ofa criminal trial could conceivably be confined for a longer period oftime than would have otherwise been the case if the criminalcharges had been adjudicated at trial. 134 In addition, some may objectto the notion of transforming the nation’s psychiatric hospitalsinto repositories for the warehousing of mentally incompetentcriminal defendants simply because they cannot be brought totrial. However, by refusing to hold that civilly committed patientshave a constitutional “right to treatment,” 135 the Court has consistentlyviewed civil commitment solely as a legal instrument bywhich states may confine and control individuals who have beenfound to pose a danger to the community by reason of a mentalillness or disability. 136 Therefore, it comes as no surprise that theSell Court regarded indefinite confinement under a civil commitmentregime as a reasonable alternative to the state’s interest inpunishing criminal acts through incarceration. 137In sum, Sell requires lower courts to employ a form of intermediatescrutiny in weighing the severity of an alleged crimeagainst the likelihood that a state’s prosecutorial interests couldbe adequately satisfied through a civil commitment regime. 138 Althoughthe Court was deliberate in not limiting the option of involuntarymedication only to allegations of violent crimes, 139 lower133. See O’Connor v. Donaldson, 422 U.S. 563, 575-76 (1975); see also 18U.S.C. § 4246 (2000) (regulating hospitalization of an inmate due for releasefrom prison but suffering from mental disease or defect).134. See Brief for the United States (Respondent) at 26, Sell v. UnitedStates, 539 U.S. 166 (2003) (No. 02-5664) (arguing that allowing courts totake the likelihood of involuntary confinement under a civil commitmentstatute into consideration in weighing the government’s prosecutorial interestsin involuntarily medicating that inmate to restore trial competence couldcause many mentally ill defendants to be “warehoused indefinitely” ).135. See O’Connor, 422 U.S. at 573 (“Specifically, there is no reason now todecide whether mentally ill persons dangerous to themselves or to othershave a right to treatment upon compulsory confinement by the State, orwhether the State may compulsorily confine a non-dangerous, mentally illindividual for the purpose of treatment.”).136. See id. at 573-74, 576; Addington v. Texas, 441 U.S. 418, 425-26(1979).137. See Sell, 539 U.S. at 180.138. See id. at 179.139. Id. at 180 (holding that the government has an important interest inprosecuting “serious” crimes against either the “person” or against “prop-

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM190 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165courts may not simply defer to a state’s cursory assertion that anyfelony charge would categorically warrant involuntary medication.140 Despite the fact that Sell had a mere “liberty interest,” asopposed to a “fundamental right,” in avoiding unwanted medication,141 a state must present something more than a “legitimate”state policy before it can compel a mentally ill defendant to acceptan unwanted medication. 142 As was the case in Riggins, the SellCourt’s analysis departs from prior holdings in which a simple“liberty interest” could be outweighed by a “legitimate” state policy,although the Sell Court does not go so far as to require an “essential”or “compelling” interest. 143Although it appears initially that the Sell Court simplyadopted a form of intermediate scrutiny, the two prongs of theCourt’s analysis discussed below may suggest something more.During the remainder of its analysis, the Sell Court struggledwith the perceived inability of both judges and prison psychiatriststo manage the often debilitating side effects associated withmost forms of antipsychotic medication, thus increasing the likelihoodof unfair prejudice at trial. 144 Possibly as a result of this, theSell Court injected elements of strict scrutiny into its analysis,while relying upon Justice Kennedy’s extremely skeptical view inHarper regarding whether trial prejudice could ever be avertedwhenever a state involuntarily medicates a mentally incompetentdefendant. 145erty”). But cf. Brief of Petitioner at 41, Sell v. United States, 539 U.S. 166(2003) (No. 02-5664) (“The government’s interest is lessened even further becausethe government’s only basis for medicating Dr. Sell is the government’sbelief that Dr. Sell is guilty of non-violent crimes, involving only economiclosses.”) (emphasis added).140. For an example of one such cursory assertion made by the governmentin a case, see Brief for the United States (Respondent) at 24, Sell v.United States, 539 U.S. 166 (2003) (No. 02-5664) (arguing that the governmenthas a “compelling” interest in adjudicating and convicting felonies).141. Sell, 539 U.S. at 178.142. See id. at 179 (requiring the state to meet a series of inquiries beforepermissibly administering antipsychotic drugs involuntarily to mentally illdefendants facing serious criminal charges in order to render the defendantscompetent to stand trial).143. See Sell, 539 U.S. at 178-79.144. See id. at 179.145. See id.; see also Riggins v. Nevada, 504 U.S. 127, 140-42 (1992) (Kennedy,J., concurring).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 191D. Preserving the Right to a Fair TrialAssuming that a state has presented an important governmentalinterest in restoring trial competency, the second prong ofthe Sell test requires a court to find that involuntary medicationwill significantly further the state’s interest. 146 Accordingly, thegovernment must show that the proposed medication is “substantiallylikely to render the defendant competent to stand trial.” 147 Indescribing this second prong of the test, the Sell Court cited withapproval a portion of Justice Kennedy’s lengthy concurrence inRiggins, 148 in which he explicitly described the ways in which theside effects of antipsychotic medication can adversely effect a defendant’sin-court demeanor, his abilities to react to the proceedings,testify on his own behalf, and communicate with counsel. 149As such, Justice Kennedy’s concurrence in Riggins is highly instructivein predicting how lower courts should apply Sell in resolvingpetitions for the involuntary medication of pretrialdetainees.The substance of Justice Kennedy’s thesis in Riggins is thatmedical and pharmacological data suggests that the involuntarymedication of mentally ill defendants would entail “a seriousthreat to a defendant’s right to a fair trial.” 150 Hence, granting astate the power to medicate a pretrial detainee would, in effect,enable prosecutors to manipulate the defendant’s demeanor in amanner that would “prejudice all facets of the defense.” 151 UnderJustice Kennedy’s analysis, therefore, a state bears an almost insurmountableburden of proving that a proposed medication is notonly efficacious, but also that the side effects from the medicationwill not impair the defendant’s opportunity to receive a fairtrial. 152 Conversely, the Eighth Circuit, when confronted with the146. Sell, 539 U.S. at 181 (“Second, the court must conclude that involuntarymedication will significantly further those concomitant state interests.”).147. Id. (emphasis added).148. See id.149. See Riggins, 504 U.S. at 142-45 (Kennedy, J., concurring).150. Id. at 138.151. Id. at 142.152. Id. at 141. Justice Kennedy stated:[E]lementary protections against state intrusion require theState in every case to make a showing that there is no significantrisk that the medication will impair or alter in any materialway the defendant’s capacity or willingness to react to the

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM192 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165issue in Sell, concluded that issues of possible trial prejudicewould be best resolved after the medication had been administered,153 with no real concern paid to the possible side effects andtheir burden on ensuring a fair trial. Due to the tremendousweight accorded by the Sell Court to Justice Kennedy’s analysis inRiggins, 154 the Supreme Court rejected the Eighth Circuit’s “waitand see” approach with respect to a state’s duty to protect a medicateddefendant from unfair prejudice at trial. 155 Moreover, theSell Court criticized the lower courts for simply deferring to theconclusions proffered by Sell’s prison psychiatrists that the benefitsof involuntary medication would presumably outweigh the potentialrisks, despite the likelihood of significant side effects. 156E. The Intrusiveness of Involuntary MedicationUnder the third prong of the Sell analysis, a court must findthat “involuntary medication is necessary to further [the state’s]interests” in bringing the defendant to trial. 157 Here, the Court affirmedits prior hypothesis in Riggins that a state could, in principle,medicate a pretrial detainee for the sole purpose of restoringtrial competency. 158 However, considering the Court’s relianceupon Justice Kennedy’s concurrence in Riggins regarding the perilsassociated with forcibly medicating pretrial detainees, the overallcontour of the Supreme Court’s analysis does not appear to betestimony at trial or to assist his counsel. Based on my understandingof the medical literature, I have substantial reservationsthat the State can make such a showing . . . . Theseuncertainties serve to underscore the difficult terrain theState must traverse when it enters this domain.Id.153. United States v. Sell, 282 F.3d 560, 572 (8th Cir. 2002), vacated by539 U.S. 166 (2003).154. The fact that the Sell Court cites to Justice Kennedy’s concurrence inRiggins on four separate occasions is indicative of the significance accorded toJustice Kennedy’s analysis in Riggins. See Sell, 539 U.S. at 179, 181, 182,185.155. See id. at 181 (holding that in order for the involuntary medication topass constitutional muster, the court must conclude that involuntary “administrationof drugs is substantially unlikely to have side effects that wouldinterfere significantly with the defendant’s ability to assist counsel in conductinga trial defense.”).156. Id. at 185.157. Id. at 181.158. See id. at 178-79; Riggins, 504 U.S. at 135.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 193be consistent with the Eighth Circuit’s optimism that Sell’s prisonpsychiatrists could easily manage whatever adverse side effects hemight experience during trial. 159 Rather, the Sell analysis seemsto be more aligned with the Sixth Circuit’s holding in Brandonthat the Riggins standard required some sort of “narrow tailoring”test which is more akin to strict scrutiny. 160 Thus, this third prongsuggests that although a state need only present an importantgovernmental interest in restoring trial competency, 161 the statemust nonetheless prove that involuntary medication is narrowlytailored to the accomplishment of its prosecutorial interests. 162Sell’s failure to establish an easily identifiable standard of reviewmay have worrisome implications for lower courts seekingguidance. Sell seems to stand for the proposition that lower courtsmust use a level of vigilance and judicial intervention that is moreakin to strict scrutiny as it pertains to the preservation of a mentallyincompetent detainee’s trial-related rights. 163 However, lowercourts may continue to apply something akin to intermediatescrutiny insofar as it relates only to a state’s assertion that thecircumstances of an alleged crime could, in theory, override an individual’sliberty interest in avoiding unwanted medication. Bystringing together elements of intermediate and strict scrutiny, 164the Sell Court struggles to strike a compromise between the government’s“compelling interest in finding, convicting, and punishingthose who violate the law,” 165 and the unquestioned duty of thecourts to protect a criminal defendant’s fundamental right to a fairtrial from the “deleterious” side effects of antipsychotic drugs. 166159. See Sell v. United States, 282 F.3d 560, 571-72 (8th Cir. 2002), vacatedby 539 U.S. 166 (2003).160. See United States v. Brandon, 158 F.3d 947, 960 (6th Cir. 1998).161. See Sell, 539 U.S. at 180.162. See id. at 181. Under traditional notions of intermediate scrutiny,states would only be required to show that involuntary medication was “substantiallyrelated” to an important governmental interest. See, e.g., Craig v.Boren, 429 U.S. 190, 197 (1976).163. See Sell, 539 U.S. at 179.164. See id.165. See Brief for the United States (Respondent) at 19, Sell v. UnitedStates, 539 U.S. 166 (2003) (No. 02-5664) (quoting Moran v. Burbine, 475U.S. 412, 426 (1986)).166. See Brief of Petitioner at 46, Sell v. United States, 539 U.S. 166(2003) (No. 02-5664) (quoting Estelle v. Williams, 425 U.S. 501, 504 (1976)).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM194 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165F. Medical AppropriatenessFinally, the fourth prong of the Sell test requires a findingthat the proposed drugs used would be medically appropriate. 167Under this final step of the analysis, a court must evaluate theproposed medication in relation to the defendant’s specific medicalcondition in order to weigh the probability of efficacy against theseverity of likely side effects. 168 Because the nature and severity ofside effects vary with the type of drug used, 169 the Sell Court implicitlyendorsed Sell’s contention that the government cannotmedicate him without first informing the trial court as to the exactdrug it intends to administer. 170The Sell Court’s “medical appropriateness” prong begs thequestion as to the extent a prison psychiatrist’s medical judgmentmay be improperly influenced by a state’s interest in bringing amentally incompetent detainee to trial. 171 In an attempt to accommodatea state’s prosecutorial interest, for example, a prisonpsychiatrist may propose to administer a drug with fewer immediateside effects (thereby enabling the state to bring the defendantto trial without the court finding a risk of unfair prejudice),despite the availability of an alternative drug more appropriatefor the patient’s long-term psychiatric condition, but yielding moreimmediate side effects. The Sell Court’s analysis does nothing todissuade prison psychiatrists from conspiring with prosecutors to167. Sell, 539 U.S. at 181 (“Fourth, . . . the court must conclude that administrationof the drugs is medically appropriate, i.e., in the patient’s bestmedical interest in light of his medical condition.”); accord Riggins v. Nevada,504 U.S. 127, 133 (1992); Washington v. Harper, 494 U.S. 210, 227 (1990).168. See Sell, 539 U.S. at 181.169. Id.170. See id. (holding that the court must conclude that administration ofantipsychotic drugs is medically appropriate based upon the defendant’smedical condition and that the drugs are necessary to further the state purposeof rendering the defendant competent to stand trial); Brief of Petitionerat 49, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (noting thecourt’s obligation to conclude that administration of medication is “necessaryand appropriate” and arguing that “[c]ertainly, a showing of medical appropriatenessrequires that the government provide the Court . . . with the nameand proposed dosage of the antipsychotic drug to be administered”).171. See Joanmarie Ilaria Davoli, Still Stuck in the Cuckoo’s Nest: Why DoCourts Continue to Rely on Antiquated Mental Illness Research?, 69 TENN. L.REV. 987, 1046-49 (2002) (commenting on the various conflicts of interest thatensue whenever a psychiatrist’s treatment decisions are influenced by the legalstrategies of both prosecutors and defense counsel).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 195jeopardize a mentally ill patient’s long-term mental condition byprescribing a particular drug for the sole and immediate purposeof hauling that person into a courtroom. 172G. The Strong Presumption Against Medicating to Restore TrialCompetencyDespite its failure to prescribe a consistent standard of judicialreview, 173 the Sell Court’s opinion will force many lower courtsto reconsider their previous rulings regarding the circumstancesunder which the government may involuntarily medicate pretrialdetainees. Although the Sell majority gave little consideration tothe detainee’s “liberty interest” in avoiding unwanted medication,174 any state that wishes to medicate a pretrial detainee isburdened with the initial presumption that the involuntary administrationof antipsychotic drugs will entail a “substantial probabilityof trial prejudice.” 175 Moreover, in his concurrence inRiggins, Justice Kennedy was explicitly doubtful about whether astate could ever present a set of circumstances under which its interestin bringing a criminal defendant to trial would outweigh thedanger of trial prejudice inherent within the administration of antipsychoticmedication. 176 Considering the extent to which JusticeKennedy’s pessimism was adopted by the majority in Sell, 177 as172. On the other hand, “[a] standard that requires forced psychiatrictreatment only be available when the motivation is purely therapeutic eliminatesthe situation in which the government is requesting treatment in orderto achieve its own goals of prosecution or execution instead of out of concernfor the afflicted individual.” Id. at 1049. This danger is inherent in situationswhere the prosecution wishes to medicate a defendant for the sole purpose ofrestoring his or her competency to stand trial. The motivation in such cases ispurely selfish, in that the state wants an opportunity to convict the defendant,and likely is motivated very little, if at all, by concerns for the defendant’smental well-being.173. See Sell, 539 U.S. at 179 (establishing a standard utilizing aspects ofboth intermediate level and strict scrutiny review); supra notes 159-165 andaccompanying text.174. See Sell, 539 U.S. at 179 (setting a standard of review that does notspecifically require inquiry into the defendant’s liberty interest).175. See Riggins, 504 U.S. 127, 138 (1991).176. See id. at 141 (Kennedy, J., concurring); supra note 55 and accompanyingtext.177. See Sell, 539 U.S. at 180 (“This standard will permit involuntary administrationof drugs solely for trial competence purposes in certain instances.But those instances may be rare.”) (emphasis added).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM196 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165well as the Court’s conclusion that the likelihood of civil commitmentcan greatly diminish the government’s need to bring a defendantto trial, 178 the Sell Court’s analysis suggests that trialcompetency alone is an allowable, yet disfavored, rationale for involuntarilymedicating a pretrial detainee who poses no danger tohimself or others.H. The Dangers of PretextualityThe most troubling aspect of the Sell Court’s opinion is theCourt’s recommendation that in all cases involving pretrial detainees,states should first seek permission to medicate an individualfor dangerousness under the Harper standard beforeseeking to medicate on the grounds of restoring trial competency.179 The Court’s suggestion was premised upon its belief thatdetermining a detainee’s dangerousness is “more objective andmanageable” than the more precarious and unpredictable inquiryinto a proposed medication’s impact on a detainee’s right to a fairtrial. 180As argued above, Sell seems to stand for the proposition thata state bears the heavy burden of producing specific evidence toprove that the involuntary medication of a pretrial detainee willnot impinge upon the detainee’s right to a fair trial. 181 This proposition,however, is severely undermined by the Sell Court’s proceduralrecommendation that a state should first seek to medicate apretrial detainee for dangerousness under Harper; 182 such a procedureappears to presume that treating a dangerous inmate andrestoring trial competency are interchangeable state interests. 183In fact, dangerousness and trial competency are not inter-178. Id.179. See id. at 183; see also Washington v. Harper, 494 U.S. 210, 227(1990) (holding that the Due Process Clause allows a state to medicate amentally ill inmate after finding that the inmate is “dangerous to himself orothers and [that] the treatment is in the inmate’s medical interest”).180. Sell, 539 U.S. at 182.181. See supra Part III.G.182. See Sell, 539 U.S. at 183; see also Harper, 494 U.S. at 227.183. But see Sell, 539 U.S. at 181-83. Noting the difference between thetwo inquiries – whether to medicate a pretrial detainee to pacify or to restorecompetency – the Court justified requiring a court to, as a threshold question,“determine whether the Government seeks, or has first sought, permissionfor forced administration of drugs on these other Harper-type [or dangerousness]grounds; and if not, why not.” Id. at 183.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 197changeable interests, as evidenced by the Sell Court’s own conclusionthat the lower courts had improperly relied upon the government’sattempt to conflate the issues of dangerousness and trialcompetency into a single inquiry. 184 The question of whether aninmate is dangerous to himself or others under Harper is differentthan the question of whether medication should be administeredto render a defendant competent for trial because a finding ofdangerousness under Harper is subject only to a rational basistest, in which courts must give significant deference to a state’sfindings of dangerousness. 185 The Harper rational basis standardis markedly different and a much lower burden to carry than theSell Court’s intermediate-strict hybrid standard of review. 186 Consequently,the Sell Court’s procedural recommendation does nothingto remedy the danger that courts may continue to obscure theimportant distinctions between a state’s interest in mitigatingdangerousness and its interest in restoring trial competency.Most regrettably, the Court may have empowered prosecutorsto use the deferential standard of review in Harper as a convenientpretext to have a pretrial detainee medicated for dangerousnesswhen the true motive is the restoration of trial competency. 187Notably, one way that courts may be able to discourage statesfrom misusing Harper in such a way is by strictly limiting the inquiryof the detainee’s alleged dangerousness to the immediate184. See id. at 183-85.185. Harper, 494 U.S. at 226-27.186. See id. at 227 (holding that the Due Process Clause allows a state tomedicate a mentally ill inmate after finding that the inmate is “dangerous tohimself or others and [that] the treatment is in the inmate’s medical interest”);Sell, 539 U.S. at 179, 180-81 (setting forth a four-pronged test forwhether a pretrial detainee may be involuntarily medicated to restore his orher competence to stand trial).187. A prosecutor may easily attempt to medicate a defendant under aclaim that he or she is dangerous to herself or others, especially with the helpof state-employed prison psychiatrists to testify that the medication is neededfor its calming effect. Moreover, the Court would welcome this initial claim,and based upon its opinion in Sell, apparently the Court would prefer thatprosecutors try the dangerousness claim before using the possibility of renderingthe defendant competent to stand trial as a justification for involuntarymedication. See Sell, 539 U.S. at 183 (requiring courts asked to permitforcible administration of antipsychotic drugs to first inquire into whetherthe prosecution has made a claim that the medication is necessary due to thedefendant’s dangerous propensities, and to ask why the prosecution has notmade such a claim when it fails to do so).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM198 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165conditions of incarceration.I. Defining Dangerousness Under Sell and HarperPerhaps the most critical issue facing lower courts is the extentto which a state’s finding that a pretrial detainee is dangerousunder the Harper standard may be improperly used tocircumvent the heightened levels of scrutiny required by Sell. 188 Inparticular, courts must be aware that governmental officials have,in the past, frequently used a mentally incompetent detainee’sprior history of aggressive behavior outside the current conditionsof incarceration as a primary basis to seek involuntary medicationunder the Harper dangerousness standard. 189 When a detainee’sacts prior to incarceration are used as a basis to justify involuntarymedication under Harper, the detainee can be burdened withan almost overwhelming presumption of dangerousness. 190 All theprosecution would need to do to satisfy Harper is to find someevents in the defendant’s past, no matter how distant, that tend toshow the defendant’s propensity for dangerousness. 191The problem with this tactic is obvious. The only real value insuch evidence is to show how dangerous the defendant may havebeen in the past, which presumably has nothing to do withwhether the defendant should be involuntarily medicated under188. See id. at 179.189. See, e.g., Morgan v. Rabun, 128 F.3d 694, 698 (8th Cir. 1997) (findingthat the defendant was dangerous based in part upon the nature of the crimethat led to his commitment and his hostile demeanor when institutionalizedin a hospital); United States v. Weston, 134 F. Supp. 2d 115, 130 (D.D.C.2001) (basing a finding of Weston’s dangerousness upon, in part, his past violentbehavior), aff’d on other grounds, 225 F.3d 873 (D.C. Cir. 2001); UnitedStates v. Keeven, 115 F. Supp. 2d 1132, 1135-36 (E.D. Mo. 2000) (involvingan Involuntary Medication Report based partly upon a mentally incompetentdetainee’s history of aggressive behavior prior to incarceration and hostilitytoward her own attorneys which sought to justify involuntary medicationupon the detainee’s “profound psychosis resulting in loss of judgment, increasedaggression and potential assaultive behavior.”).190. See, e.g., Morgan, 128 F.3d at 698 (using detainee’s prior violent acts,including the alleged crime leading to commitment, as a basis to affirm astaff psychiatrist’s decision to medicate); Donaldson v. Denver, 847 P.2d 632,633-35 (Colo. 1993) (holding that the trial court did not abuse its discretion inusing a mentally incompetent detainee’s prior history of aggressive behavioras a basis to conclude that involuntary medication was necessary to mitigatethe detainee’s dangerousness).191. See Harper, 494 U.S. at 227.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 199his current conditions of incarceration. A state may attempt tomedicate a mentally incompetent detainee although the detaineehas not shown a proclivity to assault prison staff or fellow inmatesduring the course of incarceration, or even if the inmate has beencompletely segregated from the general prison population. 192 Ifprosecutors and prison officials are permitted to use prior violentacts (such as the alleged crime of the prison detainee) as a primarybasis for involuntary medication under Harper, they may beable to circumvent the first prong of the Sell Court’s test requiringthe state to establish that its petition to medicate an individual ispursuant to an important governmental interest. 193 When the government’strue interest is to medicate the defendant to render himor her competent to stand trial, and not to medicate to amelioratea defendant’s dangerousness, using prior violent acts as a basis tomedicate pretrial detainees belies the first prong of Sell by notpermitting the court to determine whether the government’s trueinterest is an “important” one. 194Because the Sell Court suggested that all petitions for involuntarymedication should first be examined under Harper, 195 theextent to which lower courts might consider a mentally incompetentdetainee’s prior propensity for violent behavior is crucial indetermining whether prosecutors will be more or less inclined touse Harper as a pretext to medicate for dangerousness when theultimate purpose may be simply to restore trial competency. 196 Toprevent prosecutors from using the rational basis test in Harper192. Although overruled on appeal to the D.C. Circuit, the District Court‘sruling in United States. v. Weston is illustrative of a lower court’s susceptibilityto entertaining presumably irrelevant evidence of dangerousness despite adefendant’s isolated incarceration pending trial. Weston, 134 F. Supp. 2d at129-30 (using defendant’s prior violent acts as a basis to approve the government’sinvoluntary medication petition under Harper, despite the fact thatWeston was held in isolation). But see Weston, 255 F.3d at 878-79 (holdingthat defendant’s complete seclusion from the general prison population precludeda finding of dangerousness under Harper, but that he nonethelesscould be medicated to restore trial competency).193. See Sell, 539 U.S. at 180.194. See id.195. Id. at 183.196. See Donaldson v. Denver, 847 P.2d 632, 636 (Colo. 1993) (Scott, J.,dissenting) (disputing the state’s contention that involuntary medication wasfor the purpose of preventing a gross deterioration in the defendant’s conditionand concluding instead that the “total goal” was to restore trial competency).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM200 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165as a means to circumvent the requirements of heightened scrutinyrequired by Sell, courts should be careful not to confuse the issueof dangerousness under Harper with that under a civil commitmentprocedure. A mentally ill person’s prior propensity for violencewould be relevant in a civil commitment hearing because thethreshold question is whether the person should be institutionalizedbecause he otherwise poses a significant danger to himself orothers while left unsupervised in the community. 197 In contrast,the inquiry under Harper is more narrow because courts are onlyrequired to determine whether the detainee poses a danger tohimself or others exclusively within the detainee’s current conditionsof incarceration. 198As such, a state has a rational basis justification for involuntarilymedicating an inmate under Harper only if the court findsthat the methods employed within a particular facility for controllingviolent behavior are insufficient to prevent the detainee fromharming himself or others within the facility. 199 To determinewhether a particular facility is equipped to control a mentally illinmate’s behavior, a court should narrow the scope of its inquiryto whether the inmate poses an immediate threat to the prison’spsychiatrists, staff, and other inmates within the institution, andwhether prison officials have attempted to control the inmate’s197. See O’Connor v. Donaldson, 422 U.S. 563, 576 (1975).198. See Washington v. Harper, 494 U.S. 210, 227 (1990); see also Sell, 539U.S. at 174-75. The Sell Court accepted the District Court’s determination ofSell’s dangerousness after noting the District Court had “limited its determinationto Sell’s ‘dangerousness at this [present] time to himself and to thosearound him in his institutional context.’” Id. The Court in Harper stated:We hold that, given the requirements of the prison environment,the Due Process Clause permits the State to treat aprison inmate who has a serious mental illness with antipsychoticdrugs against his will, if the inmate is dangerous tohimself or others and the treatment is in the inmate’s medicalinterest.Harper, 494 U.S. at 227 (emphasis added).The Supreme Court premised its holding in Harper upon prior casesin which the Court found that the unique exigencies of maintaining safetywithin a penal institution justified the infringement of an inmate’s individualliberty interest, such as the right to avoid bodily restraints, or even the rightto marry. See id. at 223-27.199. See United States v. Weston, 255 F.3d 873, 879 (D.C. Cir. 2001) (“Absenta showing that Weston’s condition now exceeds the institution’s abilityto contain it through his present state of confinement, the prior decision appearsto preclude a finding of dangerousness.”).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 201behavior through non-drug alternatives. This limited inquiry willbetter insure that a state’s finding of dangerousness is truly deservingof the lower standard of review under Harper, and is notmerely a Trojan horse used to circumvent the searching inquiryrequired under Sell into an incompetent detainee’s prospect of receivinga fair trial while under the influence of a potent psychiatricdrug. Evidence of alleged violent acts occurring before theinmate was imprisoned, perhaps occurring in an unsupervised setting,is not likely to be probative in determining whether a mentallyill detainee poses a danger to himself or others in a prisonfacility, where the detainee’s propensity for violence may be successfullysupervised and controlled through the use of isolation orother non-drug alternatives.IV. PAVING THE WAY TO THE DEATH CHAMBERThe need for courts to construe Harper narrowly does not onlyapply to cases in which a state wishes to use antipsychotic medicationas a means of restoring trial competency. Indeed, perhapsthe most egregious use of the rational basis test of Harper wouldbe if a state employed the rationale of dangerousness as a pretextto render a mentally incompetent condemned inmate fit for execution.Because life on death row often exacerbates the symptoms ofmental illness, thereby rendering many otherwise competent inmatesincompetent, 200 there remains after Sell a legitimate fearthat some states may seek to use the rational basis test of Harperas a means to circumvent the Supreme Court’s prohibition againstexecuting the mentally insane. 201200. See, e.g., Roberta M. Harding, “Endgame”: Competency and the Executionof Condemned Inmates – A Proposal to Satisfy the Eighth Amendment’sProhibition Against the Infliction of Cruel and Unusual Punishment, 14 ST.LOUIS U. PUB. L. REV. 105, 115-16 (1994).Any individual condemned to face execution must have been triedand sentenced. In such previous judicial proceedings, the condemnedindividual must have been determined to be competent or else suchproceedings would have been suspended until competency wasachieved. Therefore, for the issue of competency to face execution tosurface, the condemned individual must have become incompetentfollowing his death sentence.Keith Alan Byers, Incompetency, Execution, and the Use of AntipsychoticDrugs, 47 ARK. L. REV. 361, 366-67 (1994) (citations omitted).201. See Harding, supra note 200, at 122-25. The Supreme Court expresslyprohibited the execution of the mentally insane in 1986. See Ford v.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM202 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165The seminal case concerning the medicate-to-execute questionis State v. Perry, 202 in which the Supreme Court of Louisiana refusedto allow state officials to use a Harper finding of dangerousnessas a justification to medicate a condemned mentallyincompetent inmate. 203 Although Perry was ultimately decidedupon state constitutional grounds, 204 the Louisiana SupremeCourt regarded the state’s petition to medicate under Harper as acynical ploy to use an alleged concern for the inmate’s health andsafety as a mere pretext to render him mentally fit for execution.205 If the Perry rationale is not adopted by other courts, involuntarymedication of inmates awaiting the death penalty torender them competent to carry out their sentence is not an unimaginablepossibility. Furthermore, after Sell, state officials mayno longer even need to use Harper as a pretext to conceal theirtrue motives when seeking to medicate condemned inmates.Rather, state officials may actually find it easier to gain judicialapproval under Sell in cases involving the involuntary medicationof condemned inmates than in cases involving pretrial detainees.To understand how Sell might impact the lives of mentally incompetentinmates who are currently residing on death row, onemust first look briefly to the Supreme Court’s original prohibitionagainst executing the mentally insane. The Supreme Court, inFord v. Wainwright, 206 held that executing the mentally insaneviolates the prohibition of the Eighth Amendment against crueland unusual punishment. 207 Although the Ford Court held thatWainwright, 477 U.S. 399, 410 (1986) (“The Eighth Amendment prohibits theState from inflicting the penalty of death upon a prisoner who is insane.”).202. 610 So. 2d 746 (La. 1992).203. Id. at 755.204. Id.205. See id. at 754. The Louisiana Supreme Court stated:It is obvious that none of the participants considered thatprison safety or the long term best medical interests of Perrywere significant or determinative issues in the proceeding.Having conducted this proceeding with the single-mindedpurpose of forcibly medicating Perry in order to executehim, . . . the state cannot now contend that it genuinely seeksto uphold the trial court’s forced medication order merely tofurther Perry’s best medical interest and the safety of Perryand others in the prison setting.Id.206. 477 U.S. 399 (1986).207. Id. at 410.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 203states may not execute a prisoner who is “insane,” 208 the Court declinedto establish any required procedure or criteria in determiningwhether a condemned inmate is mentally fit for execution. 209The only guidance provided by the Court came in the form of aproposition from Justice Powell’s concurrence that the EighthAmendment allows the states to execute only those who “know thefact of their impending execution and the reason for it.” 210 Subsequently,this statement from Justice Powell’s concurrence becamecommonly known as the “cognitive test,” and was adopted bymany states as the sole criteria in determining a condemned inmate’seligibility for execution. 211 In addition to adopting the cognitivetest, however, some jurisdictions have held that acondemned inmate is death eligible only if he can effectively communicatewith counsel, an additional requirement know as the“assistance prong.” 212The disparate interpretations of Ford will have a significantimpact upon how Sell is applied in cases involving the involuntarymedication of condemned inmates. As argued above, 213 the SellCourt essentially created a two-tiered standard of review: courtsmust first apply intermediate scrutiny to determine whether astate’s prosecutorial interest is important enough in a particularcase to outweigh an individual’s liberty interest to refuse unwantedmedication, followed by a form of strict scrutiny to ensurethat the side effects of a proposed medication would not significantlyimpact an individual’s ability to communicate with counsel,or otherwise result in unfair trial prejudice. 214 The rationale forincorporating the “assistance prong” into an inquiry regarding acondemned inmate’s mental fitness for execution is that it is im-208. Id.209. See id. at 416-17 (“[W]e leave to the State the task of developing appropriateways to enforce the constitutional restriction upon its execution ofsentences.”).210. Id. at 422 (Powell, J., concurring).211. See e.g., Singleton v. State, 437 S.E.2d 53, 56 (S.C. 1993) (citingJohnson v. Cabana, 818 F.2d 333 (5th Cir. 1981)).212. See id. at 56-57 (citing authorities and stating that “[o]ther stateshave adopted similar views where, in order to execute a defendant, he musthave the intelligence to convey any knowledge of a fact which would make hispunishment unjust or unlawful to his attorney.”).213. See supra Part III.B.214. See supra Parts III.A.-F.; see also Sell v. United States, 539 U.S. 166,179 (2003).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM204 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165perative that a condemned inmate can assist counsel throughoutthe post-conviction appeals process. 215 In a jurisdiction that hasincorporated this “assistance prong” into its analysis, the potentialside effects of a proposed drug would be crucial in determiningwhether involuntary medication would render a condemned inmatedeath eligible under Ford. 216 As such, under the assistanceprong a condemned inmate would be entitled to the same judicialprotections as a pretrial detainee under Sell, thus triggering strictscrutiny in order to ensure that involuntary medication would notimpair a condemned inmate’s ability to participate effectivelythroughout the appeals process. Because of the Supreme Court’scurrent pessimism regarding the ability of psychiatrists to mitigatethe side effects commonly associated with antipsychoticdrugs, 217 it is highly unlikely that a court bound by the “assistanceprong” would approve a state’s request to medicate a condemnedinmate. However, in the wake of the Eighth Circuit’s holding inSingleton v. Norris, 218 the results will be starkly different in jurisdictionsthat ascribe solely to the “cognitive test.” 219Several months prior to the Supreme Court’s holding in Sell,the Eighth Circuit, in Singleton v. Norris, affirmed a districtcourt’s order permitting the State of Arkansas to execute a condemnedinmate who had been previously restored to competencythrough involuntary medication under a Harper finding of dangerousness.220 Beginning with the premise that the state’s interestin punishing crime is “at its greatest in the narrow class of capitalmurder cases in which the aggravating factors justify impositionof the death penalty,” 221 the Eighth Circuit concluded that invol-215. See Singleton, 437 S.E.2d at 57-58.216. See Riggins v. Nevada, 504 U.S. 127, 140-42 (1992) (Kennedy, J.,concurring); see also Ford v. Wainwright, 477 U.S. 399, 410 (1986).217. See, e.g., supra note 56 and accompanying text.218. See Singleton v. Norris, 319 F.3d 1018, 1020 (8th Cir. 2003) (affirmingthe district court’s rejection of defendant “Singleton’s contention that theadministration of mandatory antipsychotic medication to a prisoner, even iforiginally constitutional under Harper, becomes unconstitutional once anexecution date is set because at that time it ceases to be in the prisoner’smedical interest”).219. The “cognitive test” involves determining whether a defendant ondeath row “know[s] the fact of their impending execution and the reason forit.” Ford, 477 U.S. at 422 (Powell, J., concurring).220. Singleton, 319 F.3d at 1020.221. Id. at 1025.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 205untary medication of a condemned inmate was narrowly tailoredto further an essential state interest. 222 The most contentious issue,however, was whether it could ever be medically appropriateto medicate a condemned inmate when doing so would ultimatelyresult in furthering the inmate’s ability to be put to death. 223 Inconcluding that involuntary medication was medically appropriate,the Eighth Circuit restricted its analysis solely to the immediateeffects the medication had in relieving Singleton’s symptomsof psychosis, while refusing to consider the ancillary effect of facilitatinghis eventual death by execution. 224 This approach by theEighth Circuit stands in stark contrast to that of the LouisianaSupreme Court, which held that the state’s medicate-to-executeregime “[came] closer to being the cause of death in furthering thestate’s punishment goal than to the practice of medicine or treatmentin the patient’s best [medical] interest.” 225Moreover, in Singleton, the Eighth Circuit gave no considerationto the possibility that involuntary medication might inhibitSingleton’s ability to communicate with his counsel, or to participateeffectively in the appeals process. Because the Eighth Circuitapplied the “cognitive test” as the sole criteria in defining Singleton’smental fitness under Ford, 226 Singleton’s ability to assist hiscounsel throughout the appeals process became irrelevant sincethe court’s only concern was whether Singleton was aware of his222. See id.223. See id. at 1026 (“Central to Singleton’s argument is his contentionthat medication ‘obviously is not in the prisoner’s ultimate best medical interest’where one effect of the medication is rendering the patient competentfor execution.”).224. See id. The Singleton court reasoned that:Several doctors . . . have found the medication to be effectivein controlling Singleton’s psychotic symptoms. Singleton’s argumentregarding his long-term medical interest boils down toan assertion that execution is not in his medical interest. Eligibilityfor execution is the only unwanted consequence of themedication . . . . In the circumstances presented in this case,the best medical interests of the prisoner must be determinedwithout regard to whether there is a pending execution.Id.225. State v. Perry, 610 So. 2d 746, 753 (La. 1992).226. The Eighth Circuit applied the “cognitive test” without explicitlynaming it. See Singleton, 319 F.3d at 1027 (“Ford prohibits only the executionof a prisoner who is unaware of the punishment he is about to receive andwhy he is to receive it.”).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM206 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165impending punishment and the reasons behind it. 227 Because Singletonwas foreclosed from presenting any evidence as to the possibleimpact that involuntary medication might have upon hisability to assist counsel in obtaining a successful appeal of hisdeath sentence, the Eighth Circuit was left to conclude that theonly negative side effect from the proposed medication would beSingleton’s eventual trip to the death chamber. 228Because the Supreme Court has already denied Singleton’srequest for certiorari, 229 the Eighth Circuit’s holding in Singletonnow stands as “good law.” In addition, the Supreme Court’s holdingin Sell fortifies the Eighth Circuit’s analysis in Singleton intwo significant ways. First, the Sell Court’s conclusion that courtsshould evaluate the severity of an alleged crime in determiningthe appropriateness of medicating for trial competency purposesworks in favor of medicating a condemned inmate who has alreadybeen convicted of capital murder, the most reprehensible crimeimaginable. 230 Second, by encouraging states to cloak all involuntarymedication petitions under the pretext of a Harper finding ofdangerousness, 231 the Sell Court has turned a blind eye to thealarming reality that the treatment decisions made by someprison psychiatrists may be motivated not by an undivided loyaltyto the patient’s psychiatric well-being, but rather by the desire ofgovernment officials to ensure that all condemned inmates receivetheir “just desserts.” Furthermore, in weighing the strength of astate’s prosecutorial interests under the Sell Court’s heightenedscrutiny analysis, 232 lower courts will likely find that the alternativeof indefinite confinement under a civil commitment ordercannot diminish the state’s interest in executing a condemned in-227. Id.228. Id. at 1026 (“Eligibility for execution is the only unwanted consequenceof the medication.”).229. Singleton v. Norris, 540 U.S. 832, 832 (2003).230. See Sell v. United States, 539 U.S. 166, 180 (2003) (“First, a courtmust find that important governmental interests are at stake. The Government’sinterest in bringing to trial an individual accused of a serious crime isimportant.”); cf. Ford v. Wainwright, 477 U.S. 399, 429 (1986) (O’Connor, J.,concurring in part and dissenting in part) (“But I consider it self-evident thatonce society has validly convicted an individual of a crime and therefore establishedits right to punish, the demands of due process are reduced accordingly.”).231. See discussion supra Part III.H.232. See Sell, 539 U.S. at 179.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 207mate because the state’s interest in punishing those convictedwith capital murder undoubtedly exceeds any form of indefiniteincarceration.The most disturbing aspect of the Supreme Court’s refusal toreview the Eighth Circuit’s holding in Singleton, 233 however, is theCourt’s apparent inability to recognize that those courts whichmerely apply the “cognitive test” in defining an inmate’s mentalfitness for execution will not apply any form of judicial scrutiny inregard to the possible impact that involuntary medication mighthave upon the inmate’s ability to communicate and assist hiscounsel during appeal. It is highly troublesome that many condemnedinmates who have the most to lose will be denied thesame level of judicial protection granted to all pretrial detaineesunder Sell, especially as it relates to the important right to assistand communicate with counsel during the entire course of the judicialprocess in which one’s ultimate fate will be decided. 234 Underthe current state of the law, a state’s ability to restore acondemned inmate’s mental competency through the use of drugswill hinge solely upon the jurisdiction’s favored interpretation ofmental competency under Ford. The only way to remedy this obviousdisparity is for the Court to revisit Ford by requiring all jurisdictionsto apply the “assistance prong,” 235 in addition to the“cognitive test,” 236 thereby ensuring that the Sell Court’s vigorousprotection of a pretrial detainee’s right to assist and communicatewith counsel is extended to a condemned inmate’s last efforts toavoid execution. 237V. CONCLUSIONCollectively, Sell and Singleton are indicative of a disturbingmovement in the law in which the prosecutorial interests of thestate may someday overshadow the historical duty of physiciansand psychiatrists to base all treatment decisions on the fulfillmentof a patient’s best medical interest. In seeking to accommodate astate’s interest in prosecuting mentally incompetent defendants233. See Singleton, 540 U.S. at 832.234. See U.S. CONST. amend. VI.235. See Singleton v. State, 437 S.E.2d 53, 56-57 (S.C. 1993).236. See Ford v. Wainwright, 477 U.S. 399, 422 (Powell, J., concurring).237. See Sell, 539 U.S. at 181.

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM208 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165with an individual’s right to refuse unwanted medication, the SellCourt has taken a definite, yet cautious, step toward grantingprosecutors the discretion to dictate the terms and conditions underwhich mentally incompetent defendants are to be medicated.Notwithstanding this unprecedented expansion of state power, theSell Court has given lower courts clear notice that the SupremeCourt may not turn a blind eye to the ways in which the state’sauthority to administer antipsychotic drugs might be used to impaira defendant’s constitutional right to receive a fair trial. However,the Sell Court’s holding coincides with recent developmentsin the manufacture and distribution of a newer generation of antipsychoticdrugs that are not accompanied by the same debilitatingside effects often associated with the older medicationstraditionally prescribed by psychiatrists. 238 In light of these currentdevelopments, the Supreme Court may someday choose to reconsiderits current skepticism regarding the ability of prisonpsychiatrists to prevent heavily medicated defendants from beingsubjected to unfair prejudice at trial. 239Moreover, the current state of the law is even more unsettledin regard to the numbers of mentally incompetent inmates whocurrently reside on death row. 240 In declining to review the EighthCircuit’s holding in Singleton, 241 the Supreme Court missed animportant opportunity to clarify the disparate ways states havemeasured the mental competency of condemned inmates awaitingexecution, thus providing condemned inmates with the same judicialprotections granted to pretrial detainees under Sell. Instead,238. The newer generation of drugs, commonly known as “atypical” or“novel” antipsychotics, tend not to cause the same severe neurological sideeffects, such as tardive dyskinesia, as do their older counterparts. Siegelsupra note 53, at 348-49. However, although these newer drugs are effectivein alleviating many of the acute symptoms of psychosis, not much is knownabout their long-term efficacy; nor are they widely available in injectableform. Id. at 349. Until these newer drugs become more available in injectableform, prison psychiatrists will not be able to administer these drugs to unwillingpatients. Id. at 349 n.235; Paul A. Nidich & Jacqueline Collins, InvoluntaryAdministration of Psychotropic Medication: A Federal Court Update,11 (No. 4) HEALTH LAW. 12, 13 n.21 (May 1999).239. See Nidich & Collins, supra note 238, at 13 (arguing that in light ofthe recent improvements in the manufacture of psychotropic drugs, the SupremeCourt “should revisit this issue with an open mind”).240. See Harding, supra note 200, at 113-16 (discussing increases in thenumber of mentally incompetent condemned inmates).241. See Singleton v. Norris, 540 U.S. 832, 832 (2003).

JONES VOL 10 ISSUE 1 PP 165 _2091/6/2005 1:04 PM2004] FIT TO BE TRIED 209prosecutors have a greater incentive to use a mentally incompetentcondemned inmate’s propensity for dangerousness as a pretextmerely to render the inmate mentally fit for execution. Bygranting the government the limited authority to medicate mentallyincompetent defendants for trial competency purposes, theCourt may have unknowingly accorded the government the unlimitedpower to use the therapeutic benefits of psychiatric medicationto bring condemned inmates to the threshold of the deathchamber.Cameron J. Jones

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PMMandatory Voir Dire Questions inCapital Cases: A Potential Solution tothe Biases of Death Qualification“Given the important, delicate, and complex nature of thedeath qualification process, there can be no substitute forthorough and searching inquiry . . . .” 1I. INTRODUCTIONThe above quotation emphasizes the importance of voir dire ina capital case. Because of the gravity of the death penalty as anavailable punishment, courts should do everything possible to ensurecapital voir dire results in a fair, impartial jury that is able tofollow the rule of law. Unfortunately, it seems this result fails tooccur under the current form of death qualification.Voir dire differs in capital cases as compared with other trialsin that jurors must be “death qualified” to serve in a capital case.While “death qualified” has meant different things to differentcourts, the term is most commonly used to describe a venire personable to follow both the juror’s oath and the law, despite whateverpersonal feelings that individual may harbor either for oragainst the death penalty. 2 In contrast, death qualification “excludables,”or “non-death qualifiers,” are those eliminated from acapital jury because they cannot follow the law and the juror oath.While this may seem like a reasonable manner to empanel a fairjury, empiricists have found that death qualification results in unfairjuries with many pro-prosecution biases. 3Many social scientists believe there are a number of flaws in-1. State v. Williams, 550 A.2d 1172, 1182 (N.J. 1988).2. See Wainwright v. Witt, 469 U.S. 412, 424 (1985).3. See discussion infra Part II.211

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM212 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211herent in the current process of death qualification. 4 Studies haveshown that death qualified jurors are more likely to convict a defendantthan non-death qualifiers. 5 Additionally, studies havedemonstrated that individuals eligible to sit on capital juries aremore likely to have other attitudes related to their death penaltybeliefs that effect their interpretation of the case in favor of theprosecution, despite their ability to follow the juror oath and therule of law. 6For instance, because ideas do not occur in a vacuum, 7 thosewho qualify as capital jurors are more likely to be classified as legalauthoritarians, 8 and thus may believe in a crime control modelof criminal justice. 9 Crime control theorists are predisposed to believethe prosecution’s version of events and witnesses, 10 and aremore likely to think a defendant is guilty before any evidence isheard in the case. 11 These attitudes, thought to be held by manydeath qualified jurors, undermine the notion of a presumption of4. As a cautionary note, it appears that after thorough examination ofthe empirical studies, social scientists tend to base their research on a definitionof death qualification that focuses on those who can serve on a capitaljury because their moral beliefs will not interfere with their ability to be impartial.See discussion infra Part II. This definition, however, fails to takeinto account those individuals not morally opposed to the death penalty, butrather will not enforce it because of their lack of faith in the ability of the justicesystem to be conclusive enough to warrant imposition of death. Those individualsare not death qualified because they would not be able to follow thejuror instructions requiring consideration of death as an available punishment.It would be interesting to ascertain whether those jurors would havethe same tendencies as those who are not death qualified for moral reasons.5. William C. Thompson et al., Death Penalty Attitudes and ConvictionProneness: The Translation of Attitudes into Verdicts, 8 LAW & HUM. BEHAV.95, 109 (1984).6. See id. at 97.7. See id. (“[A]ttitudes toward the death penalty do not exist in isolationbut are associated with a cluster of other attitudes and beliefs about criminaljustice.”).8. Douglas J. Narby et al., A Meta-Analysis of the Association BetweenAuthoritarianism and Jurors’ Perceptions of Defendant Culpability, 78 J.APPLIED PSYCHOL. 34, 40-41 (1993).9. See Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. CrimeControl: Death Qualification and Jury Attitudes, 8 LAW & HUM. BEHAV. 31,46-48 (1984).10. See Claudia L. Cowan et al., The Effects of Death Qualification on Jurors’Predisposition to Convict and on the Quality of Deliberation, 8 LAW &HUM. BEHAV. 53, 69 (1984).11. See Fitzgerald & Ellsworth, supra note 9, at 48.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 213innocence. Furthermore, death qualification has the adverse effectsof frequently excluding minorities and women, 12 and fosteringa jury with a homogenous attitude toward the legal system,resulting in poorer jury deliberation and a jury stacked againstthe defendant. 13Despite the abundance of research indicating these flaws,courts have refused to lend much positive credence to those findings.14 The research in this area has been developing for severaldecades, but the United States Supreme Court continues to hold itinconclusive and unsubstantial. 15 However, even though the Courthas been reluctant to rely on the empirical data, it has been forcedto revise the death qualification process on several occasions, indicatingthat there are flaws inherent in the current process. 16 ThisComment proposes that courts should take a further step to revisedeath qualification by requiring judges in capital cases to ask aminimum mandatory set of voir dire questions aimed at elicitingdeath qualified jurors who are not burdened with the proprosecutionbiases many current death qualifiers may possess.“The essential function of voir dire is to enable counsel togather information sufficient to make well informed decisionsabout jurors whose biases may interfere with a fair considerationof the evidence.” 17 The problem with death qualification in its presentstate is that, while it seeks to find jurors who can follow thelaw, many of those jurors may still have attitudes that make themmore conviction prone. If voir dire questions can be utilized toidentify jurors who would both follow the law and be impartial,then the process as a whole would become fairer for defendantsand would help the court maintain an image of impartiality. Becausethe Court has already regulated voir dire in a variety of12. See id. at 46-47 (including a table comparing death qualification resultsbased on major demographic characteristics).13. Cowan et al., supra note 10, at 55.14. See discussion infra Part III.B.15. See discussion infra Part III.16. See discussion infra Part III.17. Memorandum of Law in Support of Defendant John Javilo McCullah’sRequest For Voir Dire Procedures at 1, United States v. McCullah, No.CR-92-32-S (E.D. Okla. 1996), aff’d, 76 F.3d 1087 (10th Cir. 1996), availableat http://www.capdefnet.org./fdprc/contents/litigation_guides/guideframe.htm[hereinafter McCullah Memorandum].

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM214 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211ways, 18 this Comment’s thesis does not suggest a radical departurefrom Supreme Court jurisprudence. Instead, it proposes oneof the few practical solutions to the complex problem of how to impanela jury in a capital case able to impartially hear a trial.Part II of this Comment will explore the empirical research inthis area and discuss the biases inherent in the current deathqualification process. Part III will examine the reasons the SupremeCourt has given for rejecting the empirical research and itsjustifications for allowing death qualification in its current state.The Comment will conclude in Part IV with a proposal that judgesbe required to ask specific questions during voir dire to ascertainwhich jurors have less death qualified biases, thereby ensuring afairer legal process.II. THE EMPIRICAL RESEARCH ON DEATH QUALIFICATION BIASESA. Jurors Retained Through the Process of Death QualificationAs the court opinions discussed below indicate, 19 many legalexperts do not believe death qualification results in a jury with biasessignificant enough to render the current method of jury selectionunconstitutional. Several social scientists, however, holdcontrary opinions and have attempted to demonstrate that deathqualifiers as a group have biases that deny the defendant in acapital case his right to a fair and impartial jury. Many of thesestudies, however, have been examined and rejected by thecourts. 20 Nevertheless, it is important to understand what the attitudesand biases are that researchers allege death qualifiershave. It is also important to understand what characteristics andattitudes are consistently being eliminated from capital juriesthrough death qualification. For if the empirical research on deathqualification is correct, then the process may not be as impartialas the courts would like society to believe. More importantly, theseattitudes must be understood to develop an appropriate solution toeradicate the alleged flaws in the process.18. See discussion infra Part IV.19. See discussion infra Part III.20. See, e.g., Lockhart v. McCree, 476 U.S. 162, 168-73 (1986).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 2151. Are Death Qualified Jurors More Likely to be Conviction Prone?One of the most crucial potential problems of death qualificationis conviction proneness. In 1971, George Jurow was the firstto accept the Witherspoon Court’s implicit invitation for furtherresearch in the area. 21 Through his research, 22 Jurow began toelaborate on the ideas of conviction proneness first put forth byWilson, 23 and later developed by Zeisel, 24 both studies rejected inWitherspoon. 25 Jurow noted the predominance of those in favor ofthe death penalty as being more likely to convict. 26 The problemwith this study, however, is even if the data is accurate, its practicalimplications are arguably limited. Some researchers attemptto use the theory of conviction proneness as a means of demonstratingthat the defendant in a capital case is going into trial21. See Fitzgerald & Ellsworth, supra note 9, at 37-38; Witherspoon v.Illinois, 391 U.S. 510, 517-18 (1968); see also George L. Jurow, New Data onthe Effect of a “Death Qualified” Jury on the Guilt Determination Process, 84HARV. L. REV. 567 (1971).22. The subjects in Jurow’s study were divided into groups based uponhow they responded, on a five-point scale, on when they could or could notadminister the death penalty. Cowan et al., supra note 10, at 57-58. In oneportion of the study, his data indicated that 44.7% of death qualified subjectsvoted to convict, as opposed to only 33.3% of the excludables. Id.23. Id. at 56. Wilson found that individuals with objections to the deathpenalty were less likely to convict a defendant in the guilt phase of a trialwhen compared with those jurors who had no scruples against the death penalty.Id. Wilson separated college students into two groups based upon theirresponses to whether or not they had “conscientious scruples” against thedeath penalty. Id. Students were given cases to read and provided what theirvote would be had they been on the jury. Id. Mock jurors with no scruplesagainst capital punishment were more likely to convict the defendant. Id.While this “conscientious scruples” test is no longer the death qualificationstandard, this study may serve as an indication that death penalty attitudesare tied to conviction proneness. See Wainwright v. Witt, 469 U.S. 412, 424(1985) (holding that the standard is whether a prospective juror’s views oncapital punishment would “prevent or substantially impair” his or her abilityto follow juror instructions in accordance with his or her oath).24. Cowan et al., supra note 10, at 57. Zeisel interviewed jurors who hadpreviously sat on actual felony juries. Id. He asked them three questions:what the whole jury voted on the first ballot, what their individual vote was,and if they had any scruples against the death penalty. Id. Like Wilson,Zeisel found that jurors who favored the death penalty were more likely toconvict the defendant. Id.25. Witherspoon, 391 U.S. at 516-18.26. Jurow, supra note 21, at 584-85.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM216 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211with a jury stacked against him. 27 If Jurow’s data is an accuraterepresentation of human attitudes, however, less than half thedeath qualifiers elected to convict the defendant. 28 While deathqualified jurors do convict more than death excludables accordingto the research, Jurow’s data indicates that it is not at an extraordinarilyhigher rate, and therefore may not be as large of a problemas researchers claim. 29As time has passed, however, more reliable methods of evaluatingdeath qualified jurors have developed offering potentiallygreater accuracy in demonstrating the presence of convictionproneness. 30 One such study was conducted by William C. Thompson’sresearch group, which established the conviction pronenessof death qualified jurors through the administration of a “RegretScale.” 31 The researchers concluded that death qualifiers are convictionprone because they are more likely to feel worse about lettinga guilty man go free than about wrongfully convicting an27. See, e.g., Cowan et al., supra note 10, at 53; Fitzgerald & Ellsworth,supra note 9, at 31.28. See supra note 22.29. Jurow’s second case study, however, resulted in 60% of death qualifiersand only 42.9% of death excludables voting to convict. Cowan et al., supranote 10, at 58. This demonstrates a larger difference – almost 20% – in convictionproneness between the two groups, indicating that death qualifiersmay in fact find the defendant guilty more frequently.30. See, e.g., Irwin A. Horowitz & David G. Seguin, The Effects of Bifurcationand Death Qualification on Assignment of Penalty in Capital Crimes,16 J. APPLIED SOC. PSYCHOL. 165, 165, 180-81 (1986). Horowitz and Seguin’sresearch also found that death qualified jurors are more likely to convict. Inthat study, participants were divided into different mock juries and classifiedas either death qualified or non-death qualified. Id. at 172-73. The groupsthen heard either the guilt or sentencing phase of the trial. Id. The researchindicated that the death qualified jury that heard both the guilt and sentencingphases of the trial gave the most severe verdicts. Id. at 180-81.Interestingly enough, this is the procedure used in almost all capital trials.See, e.g., Buchanan v. Kentucky, 483 U.S. 402, 427 (justifying the use ofhaving one jury decide both stages of the trial – guilt and penalty – because asingle jury process avoids repetitive proceedings and ensures the defendantthe benefit of any residual doubt jurors may feel regarding guilt at sentencing).Therefore, those who will be the harshest toward capital defendants arethe ones trying capital defendants. What is even more fascinating about thisstudy is, while it showed that death qualifiers are more conviction prone, thenon-death qualified jurors still convicted the defendant eight out of eleventimes. See Horowitz & Sequin, supra, at 176. This may indicate that the fearthat many courts may have that non-death qualifiers would not convict at allis simply untrue.31. Thompson et al., supra note 5, at 106.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 217innocent man. 32 While the death qualifiers acknowledged thatthere are times when innocent people are wrongly convicted, theyfelt that this was a necessary flaw in the process of reducing crimeand controlling the behavior of actual criminals. 33 Therefore, theresearchers concluded that death qualifiers convict more frequentlyand require less certainty of guilt because such personsfeel it is important to control crime, and they do not feel guilty ifthey wrongly sentence a man to die, so long as the conviction wasthe result of a process which aims to make society safer from reallaw-breakers. 34A problematic consequence of conviction proneness occurswhen the death penalty is sought in cases where the death penaltywould not be an appropriate punishment. Unlike judicial officers,prosecutors who routinely deal in capital cases may fully subscribeto the empirical data indicating the conviction proneness of capitaljuries and make practical use of this proclivity. For instance, someprosecutors may elect to use this information in an unethical fashion,by requesting the death penalty specifically to get the benefitsof a death qualification process resulting in conviction prone juries.35 This may be done by prosecutors to increase the chances ofsuccess at trial, even when the death penalty may not be appropriatein the particular case. 36 Even the most hardened supportersof the death penalty should view this as an abuse of the process, 37for the death penalty should not be sought simply as a way to in-32. See id. at 107.33. See id. at 107-08.34. Id. at 108.35. This unethical prosecutorial practice has been addressed by bothcommentators and judges. See, e.g., Lockhart v. McCree, 476 U.S. 162, 185,188 n.4 (1986) (Marshall, J., dissenting) (criticizing the majority for failing toaddress the possibility that the State will request the death penalty in particularcases solely to obtain a death qualified jury); Samuel R. Gross, Determiningthe Neutrality of Death-Qualified Juries: Judicial Appraisal ofEmpirical Data, 8 LAW & HUM. BEHAV. 7, 13 (1984).36. See Lockhart, 476 U.S. at 185 (stating that permitting such conductby the prosecutor causes the State to have a “special advantage in thoseprosecutions where the charges are the most serious and the possible punishments,the most severe”); see also Gross, supra note 35, at 13.37. There are formal guidelines and procedures a prosecutor must abideby before a court will allow the death penalty to become available. See, e.g.,18 U.S.C. § 3593 (2000). It appears to be relatively simple, however, for aprosecutor to satisfy the statutory requirements, thereby making the desiredgoal of obtaining a death qualified jury relatively easy to achieve. See id.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM218 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211crease the chances of conviction.2. Are Death Qualified Jurors More Likely To Favor Crime Controlover Due Process Rights?Empiricists have unearthed many other biases, in addition toconviction proneness, that death qualified jurors may have againsta defendant in capital cases. While the death qualification processattempts to account for personal attitudes about the death penalty,it fails to appreciate that attitudes do not occur in isolation. 38Thus, researchers believe other biases are linked to death penaltyattitudes that are not eliminated through current death qualificationrequirements, and that these attitudes result in a jury thatfavors the prosecution. 39Researchers categorize individuals as having one of two typesof beliefs regarding the criminal justice system: the crime controlapproach or the due process approach. 40 Those who believe in thecrime control ideology believe it is important to capture criminalsquickly and efficiently. 41 They also generally believe that policeare capable of performing their jobs effectively, and therefore, thatmost defendants who make it to trial are probably guilty becausethe police most likely caught the right man. 42 On the other hand,those who have a due process mindset are more concerned withthe rights of individuals and are suspicious of state power. 43Unlike the crime control method, those who adopt a due processapproach have a strong belief in the presumption of innocence. 44These distinctions are important because numerous studies indicatethat death qualifiers are more likely to favor a crime controlapproach. 4538. See Cowan et al., supra note 10, at 60.39. Id.40. Fitzgerald & Ellsworth, supra note 9, at 33-34.41. Id. at 34.42. Id.43. Id. at 33.44. Id.45. See id. at 46-48. The authors noted the following regarding theirstudy:[T]he results of our study are in line with previous research indicatingthat a person’s attitude toward capital punishment is an importantindicator of a whole cluster of attitudes about crime control anddue process. Compared to the death qualified jurors, the members ofthe excluded group are more concerned with the maintenance of the

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 219The categorization of veniremen into either a crime control ordue process approach represents a variety of ideas that individualsin each category may hold. 46 Thompson’s research group, inconcluding that death qualifiers were more likely to favor crimecontrol ideology, discussed how this would have a biasing effect onthe defendant. 47 For example, because of their crime control beliefs,death qualifiers may go into a trial presuming the guilt of adefendant, and ambiguous evidence at trial will generally be interpretedagainst a defendant. 48 For instance, if there are missingdetails in a scenario of events, death qualifiers are more likely tofill those gaps with information tending to confirm their beliefthat the defendant committed the crime, and are more likely tomentally visualize the defendant committing the criminal acts. 49Similarly, death qualifiers with a crime control attitude are morereadily willing to accept the prosecutor’s version of the facts of thecase while remaining distrustful of defense witnesses. 50 Thus,these death qualified jurors would not likely give a defendant thebenefit of a reasonable doubt because they would be likely to interpretthe evidence against him and have trouble believing hiswitnesses. This leads to the aforementioned problem of convictionproneness, as well as a deprivation of a defendant’s presumptionof innocence.Another anti-defendant bias that has been found to be a featureof death qualified juries is an increased belief in a defendant’sculpability. In one study on this phenomenon, Jane Goodman-Delahunty’s research group concluded that death qualified jurorsfundamental due process guarantees of the Constitution, less punitive,and less mistrustful of the defense.Id.46. See id. at 33.47. Thompson et al., supra note 5, at 103-05.48. See id. at 104-05.49. Id. at 105 (“People construe ambiguities and ‘fill-in’ missing details inaccordance with their conception of how the scenario typically develops.”).50. See id.; see also Cowan et al., supra note 10, at 69. The Cowan researchgroup found that “death-qualified jurors were more impressed withprosecution witnesses,” and found the prosecutor more believable in comparisonto death excludables’ perceptions. Id. However, “[d]eath-qualified anddeath excludable jurors did not differ in their perceptions of the likability[sic], competence, or believability of the defense attorney.” Id. The questionremains, however, that if death excludables were allowed on capital juries,would this not create a pro-defendant bias?

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM220 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211differ from death excludables in their interpretation of the criminalmens rea. 51 When participants of their study were shown avideotaped criminal act, the death qualifiers were more likely tobelieve that the crime was committed intentionally. 52 In contrast,death excludables were less likely to believe that the criminal’s actionswere intentional. 53 The Goodman-Delahunty study concludedby making four general conclusions about death qualifier attitudesin general. The researchers found that jurors who were deathqualified were more likely to infer from the evidence: “(1) that thedefendant intended to murder the victim, (2) that his specific actionsindicated premeditation, (3) that the defendant’s substanceabuse did not mitigate his actions, and (4) that the defendantwould be a future threat to society.” 54These conclusions demonstrate the harshness of the conditionsa defendant possibly must face in a capital trial. For instance,while a jury is supposed to take into account mitigatingfactors when determining guilt and an appropriate sentence, theGoodman-Delahunty study found that death qualified jurors areless likely to do this. 55 Furthermore, because death qualifiers aremore likely to believe a defendant intended his crime and wouldbe a future threat to society, 56 punishment will likely be harsherthan what death excludables might determine to be an appropri-51. See Jane Goodman-Delahunty et al., Constructing Motive in VideotapedKillings: The Role of Jurors’ Attitudes Towards the Death Penalty, 22LAW & HUM. BEHAV. 257, 265 (1998).52. Id. at 269. The subjects in this study were shown a security tape of aman killing a convenience store clerk. The actus reus – the fact that this mancommitted the murder – was not in dispute; rather, the subjects were askedto determine his criminal intent from the evidence, and thus decide on theappropriate charge of first degree murder, second degree murder, or manslaughter.The charge would in turn determine whether the defendant wouldbe eligible for the death penalty, which could be invoked only if the defendantwas convicted of first degree murder. Id. at 262.53. Id. at 265. The effect of this difference is obvious and quite problematicfor the defendant. Presumably, if death qualifiers are more convincedthat criminal acts are done intentionally, the result will be harsher punishmentsfor the defendant. For example, death qualifiers will more likely find adefendant guilty of first degree murder than second degree murder or manslaughter.See id. at 269. It follows that in many instances, the effect of suchbiases could mean the difference between life and death for the defendant.54. Id.55. Id.56. See id.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 221ate sentence. These conclusions are especially troubling when oneconsiders that death qualified juries, the ones that were found togive the harshest punishments, 57 are only used in those caseswhere the harshest punishment of all – the death penalty – isavailable.This is only a brief list of some anti-defendant biases researchershave found a majority of death qualifiers possess. 58These attitudes are linked to death penalty beliefs; therefore,those who are not against the death penalty have been found tohold these additional ideologies. 59 However, in addition to creatinga jury with many pro-prosecution beliefs, the death qualificationprocess also eliminates a number of characteristics that wouldcounter-balance these biases.B. Juror Characteristics Excluded Through Death QualificationWhile death qualification may result in a jury whose membershold pro-prosecution attitudes, the process has the added negativeeffects of consistently eliminating certain individuals with attitudesand characteristics less biased toward conviction. In otherwords, diversity that could ensure procedural fairness is reduced.For instance, studies indicate that death qualification eliminates a57. See Horowitz & Sequin, supra note 30, at 180.58. One other final pro-prosecution attitude entangled with crime controlthinking is legal authoritarianism. Legal authoritarians are similar to classicalauthoritarians in that they look to society’s rules and laws for disciplineand stability. This need for stability reflects their deep distrust of human beingsin general. Narby et al., supra note 8, at 34. Legal authoritarians arethose who are more likely than others to disregard the civil liberties and therights of an accused. Id. at 35. This may include a disregard of “the presumptionof innocence, the exclusive burden of proof borne by the prosecution, andvarious [other] constitutional procedural safeguards.” Id. These attitudes,prevalent among death qualifiers bias the jury against a defendant because adefendant is being denied his entitlement to certain rights and presumptions.It would appear that the death qualification criteria would eliminate such legalauthoritarians from the jury because the process supposedly eliminatesthose who cannot follow the law and their juror oath. See Wainwright v. Witt,469 U.S. 412, 424 (1985). The problem, however, is that legal authoritariansare not eliminated under that standard; because they feel they are followinga more important law, one they feel helps to ensure the convictions of defendantsthat they distrust and feel deserve punishment, the death qualificationprocess overlooks them. See Narby et al., supra note 8, at 34.59. See, e.g., Cowan et al., supra note 10, at 69.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM222 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211large portion of women and minorities. 60 Fitzgerald and Ellsworthexamined this problem and concluded that death qualificationeliminates a very sizable number of these demographic groupsfrom service. 61 This lack of diversity may presumably be harmfulto a defendant, particularly if a defendant is a woman or minority.Researchers may have optimistically hoped that because oftheir findings of inherent bias in the current death qualificationprocess, courts might once again reconsider the validity of deathqualification. Women and minorities have been held to be cognizablegroups that cannot be eliminated from a jury simply becausethey are members of those classes. 62 If it is true that death qualificationfrequently results in such removal, the courts might bemore willing to once again redefine the death qualification processso that it no longer yields an unconstitutional result.Death qualification also reduces diversity of ideas and perceptionscausing juror deliberation to suffer. 63 Due to this homogeneityof attitudes concerning the criminal justice system that deathqualified juries have been found to possess, most death qualifiedjurors are likely to view a trial similarly and interpret evidenceand witness credibility in a like manner. 64 Therefore, deliberationswill likely be shorter and there will be less discussion of the trial.On the other hand, in studies of mixed juries composed ofboth death and non-death qualified jurors, there was a higherquality of deliberations. 65 Because the jurors had dissimilar attitudeson criminal justice ideals, the trial was interpreted differentlyamong the individual jurors. Consequently, there was morediscussion about the evidence and facts, and more points of the60. E.g., id. at 67.61. See Fitzgerald & Ellsworth, supra note 9, at 46. Their research indicatedthat 21% of all women jurors and 25.5% of all black jurors are eliminatedfrom serving on capital juries due to the death qualification process. Id.62. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that “theEqual Protection Clause forbids the prosecutor to challenge potential jurorssolely on account of their race”); Taylor v. Louisiana, 419 U.S. 522, 537 (1975)(holding that women as a class may not be excluded from juries based solelyon their sex).63. See Cowan et al., supra note 10, at 75-76.64. See id.65. See id. at 60 (“[The jurors] need only be different. In losing a differentviewpoint the jury loses some of its capacity for controversy and selfcriticism.”).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 223trial were raised during the deliberations. 66 The lack of quality deliberationthat results from death qualification is important becausethe ever-lofty ideal purpose of a trial is to “find the truth.”The only way to accomplish this is to look at the situation from avariety of perspectives, and this simply cannot happen after deathqualification virtually wipes out dissimilar perceptions from thejury.III. JUDICIAL REVIEW OF DEATH QUALIFICATIONDue to its controversial nature, the legality and fairness ofdeath qualification has come before the courts on numerous occasions.Throughout the years, the United States Supreme Courthas held the death qualification process constitutionally sound. 67However, this far from proves the process is the fairest procedureto obtain a capital jury.A. Development of the Death Qualification Standard – Changes inDefinitionThe first major Supreme Court case that truly addressed therelationship between death qualified juror attitudes and theirfunction in the legal system was Witherspoon v. Illinois. 68 An Illinoisjury had sentenced Witherspoon to death after the prosecutioneliminated nearly half of the venire group on challenges. 69The trial court allowed the prosecution to go so far as to eliminateanyone who said they were opposed to the death penalty, or “expressedqualms about capital punishment.” 70 Witherspoon attackedthe use of challenges on those jurors and claimed that such66. See id. at 76.67. E.g., Lockhart v. McCree, 476 U.S. 162, 184 (1986); Wainwright v.Witt, 469 U.S. 412, 424 (1985). Various state supreme courts have agreed.E.g., Nebraska v. Burchett, 399 N.W.2d 258, 264 (Neb. 1986).68. 391 U.S. 510 (1968).69. Id. at 513. Illinois, at the time, was operating under a state law thatauthorized challenges for cause on any venireman who, “on being examined,state[s] that he has conscientious scruples against capital punishment, orthat he is opposed to the same.” Id. at 512 (quoting 725 ILL. COMP. STAT. ANN.5/115-4 (West 2000)). The current version of this statute omits the originallanguage completely and indicates instead that “[e]ach party may challengejurors for cause.” Id.70. Id. at 513. At one point during voir dire, the trial judge even specificallystated: “Let’s get these conscientious objectors out of the way, withoutwasting any time on them.” Id. at 514.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM224 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211a procedure was a violation of his Sixth and Fourteenth Amendmentrights to due process and to adjudication by a jury of hispeers. 71 Partially agreeing, the Supreme Court held the Illinoisstatute improper in its current form. 72 The Court went on to establishguidelines that should be used to determine whether a potentialjuror could be properly excluded from a capital jury. The“Witherspoon Standard” was annunciated as follows: In a capitalcase, veniremen could be excluded for cause if they:made [it] unmistakably clear (1) that they would automaticallyvote against the imposition of capital punishmentwithout regard to any evidence that might bedeveloped at the trial of the case before them, or (2) thattheir attitude towards the death penalty would preventthem from making an impartial decision as to the defendant’sguilt. 73In establishing this standard, the Court made several keyfindings regarding death penalty juror attitudes. Most notably, byexcluding those who would automatically vote against the deathpenalty, the Court demonstrated its belief that just because an individualhas conscientious or religious scruples against the deathpenalty does not necessarily mean that such an individual wouldbe unable to convict a capital defendant and inflict the death penaltyin the “proper case.” 74 This belief epitomizes the Court’s rejectionof the psychological evidence presented by the defendanttending to show such a jury would indeed be biased against him. 75While the Court did not rely on any empirical research of its ownin making this decision, it rather quite generally stated “[i]t hasnot been shown that this jury was biased with respect to the petitioner’sguilt.” 76Another important conclusion in Witherspoon was that the71. See id. at 518; see also U.S. CONST. amend. VI (“In all criminal prosecutions,the accused shall enjoy the right to a speedy and public trial, by animpartial jury of the State . . . .”) (emphasis added); U.S. CONST. amend. XIV,§ 1 (“[N]or shall any State deprive any person of life, liberty, or property,without due process of law . . . .”).72. See Witherspoon, 391 U.S. at 522.73. Id. at 522 n.21.74. Id. at 515-16 n.9.75. Id. at 517-18.76. Id. at 518.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 225Court specifically stated its decision in the case only rendered thesentence of Witherspoon invalid, but not his conviction. 77 This illustratesthe Court’s continued belief that death penalty attitudesheld by jurors do not have an inherent effect on a juror’s ability todetermine guilt or innocence. On the other hand, by establishingthe standard as it did, the Court did seem to acknowledge thatdeath penalty attitudes could in some circumstances effect a juror’sability to determine guilt. 78 This conclusion follows from thespecific language used by the Court, when it stated that veniremenmay be excluded for cause when they made it “unmistakablyclear . . . that their attitude towards the death penalty would preventthem from making an impartial decision as to the defendant’sguilt.” 79By making such jurors excludable, the Witherspoon Courtclearly demonstrated its conviction that certain individual beliefsare so strong they cannot be set aside. However, the standard isarguably flawed in that it will only exclude those who make itunmistakably clear that their death penalty beliefs will affecttheir ability to determine guilt. This fails to account for the viewheld by many researchers that death penalty attitudes subconsciouslyeffect an individual’s ability to determine guilt. 80 Simplyexploring death penalty beliefs during voir dire should not beenough to death qualify a juror because other attitudes, ignored bythe current death qualification, could negatively effect that person’simpartiality.Courts have continuously altered the Witherspoon criteria andhave applied changing standards to expanded situations. Thestrongest attack on the Witherspoon criteria came in Wainwright77. Id. at 522 n.21.78. See id.79. Id. By adding this prong to the test, the Court appeared to recognizethat death penalty attitudes effect not only the penalty phase of the trial, butalso the juror’s ability to impartially determine guilt or innocence.80. See, e.g., Cowan et al., supra note 10 (reviewing empirical studiesconducted by a number of researchers). For example, a juror could qualifyunder the Witherspoon standard if he stated that while he may have reservationsagainst the death penalty, it would not affect his determination of guilt.That person’s view on the death penalty, however, may be linked to other attitudesand biases that would subconsciously affect his or her vote onwhether to convict or acquit the defendant. See discussion supra Part II.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM226 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211v. Witt. 81 In that case, the Court seemed frustrated with the highburden of proof required by the Witherspoon standard which requireda showing that an individual would never vote for thedeath penalty. 82 Furthermore, that standard did not focus onwhen veniremen could be excluded from capital cases, but ratheronly on when they could not be excluded. 83 To remedy this problem,the Wainwright Court established the following standard: “Aprospective juror may be excluded for cause because of his or herviews on capital punishment . . . [when] the juror’s views would‘prevent or substantially impair the performance of his duties as ajuror in accordance with his instruction and his oath.’” 84Unlike the Witherspoon criteria, Wainwright did not focus ondeath penalty attitudes in particular. Rather, it centered on theidea that as long as a juror is able to follow instructions under thelaw, then that juror should be allowed to serve. 85 As a result, theCourt made it easier for prosecutors to exclude more jurors becauseof their feelings about capital punishment. 86The Witherspoon standard required exhibiting unmistakablyclear bias that a potential juror would automatically vote againstthe death penalty. After Wainwright, however, this high burden ofproof is not required. Therefore, veniremen who may only havescruples against the death penalty but would not automaticallyvote against it could arguably be excluded from service if such beliefscould interfere with their role as jurors. This may allowprosecutors to eliminate more individuals who have fewer biasesagainst a defendant than those who are completely in favor of thedeath penalty.81. 469 U.S. 412 (1985).82. See id. at 421-22. Additionally, while the Witherspoon standard hadbeen in use for a number of years, the Court pointed out that the standardwas contained in a footnote of the Witherspoon opinion and interpreted it asmere dicta. Id. at 422.83. See id. at 421-22.84. Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).85. See id.86. Craig Haney et al., “Modern” Death Qualification: New Data on ItsBiasing Effects, 18 LAW & HUM. BEHAV. 619, 624 (1994) (“As expected, applicationof the Witt standard did increase the size of the groups of persons whowere excludable on the basis of their death penalty opposition.”).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 227B. Judicial Rejection of Empirical Data on Death QualificationBiases1. Despite Alleged Biases, the Death Qualification Process isConstitutionalMany courts justify the process of death qualification on legalgrounds, overlooking any empirical research indicating the biasesinherent in the process, 87 and dismissing those problems as insufficientto hold the procedure an unconstitutional violation of a defendant’srights. 88 For example, in Buchanan v. Kentucky, 89theCourt held that a death qualified jury was not extraordinarilyconviction prone, and therefore, could decide the fate of a man notsubject to capital punishment. 90 More importantly, the Court rationalizedthe constitutionality of death qualification by holdingthat it does not violate a defendant’s right to a jury selected from arepresentative cross-section of the community. 91 Despite any attitudesthat death excludables may share, they were held not toconstitute a distinctive group for fair cross-sectional purposes becausetheir exclusion was not based on a cognizable trait such as87. See, e.g., Lockhart v. McCree, 476 U.S. 162, 173 (1986).88. United States v. Edelin, 118 F. Supp. 2d 36, 47 (D.D.C. 2000).The Supreme Court in McCree and in Buchanan assumed the validityof the studies before it and still ruled that the death qualifiedjury was a valid and constitutional instrument of the courts. TheSupreme Court was not willing to find in McCree and Buchanan thatthe prejudice associated with a death qualified jury was sufficient tomandate another system of selecting juries . . . .Id. (citations omitted).89. 483 U.S. 402 (1987).90. Id. at 413, 420. The Court justified the process to such a degree thatit was held to be constitutional to use a death qualified jury against a defendantwho was not even having the death penalty sought against him. Id. at419-20. The case involved two co-defendants, but the death penalty was onlysought against one. Because the death penalty was sought, the death qualificationprocess was used to obtain the jury. Id. at 407-08. This was a nonbifurcatedtrial, so a single jury heard and decided all of the evidence againstboth defendants. Id. The Court held that even though the death penalty wasnot sought against one defendant, the death qualification process did not createan impartial jury for him, and therefore, there was no violation of hisSixth Amendment rights. Id. at 419-20.91. Id. at 415.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM228 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211race or sex. 92 On the contrary, death excludable jurors are only excludedfor their inability to perform in accordance with the juryinstructions. 93Much of the reasoning in Buchanan was derived from a casedecided one year earlier, Lockhart v. McCree. 94 Lockhart’s importancelies in its full examination of the empirical research ondeath qualification biases, 95 and rejecting that the Constitutiondoes not prohibit the death qualification process in capital cases. 96Like Witherspoon, Lockhart involved a defendant’s allegation thata jury of death qualifiers violated his Sixth and FourteenthAmendment rights and deprived him of his right to have “his guiltor innocence determined by an impartial jury selected from a representativecross section of the community.” 97 The Court rejectedthese claims and held that the death qualification process did notdeny the defendant his constitutional protections. 98The Lockhart Court made two crucial findings in rendering itsdecision. First, the Lockhart Court found that a death qualifiedjury was not unconstitutionally impartial because such a jurycould have been selected even without the use of the death qualificationprocess. 99 Second, the Court held that death qualified jurors92. See id. at 413; cf. J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 130-31(1994) (holding that discrimination on the basis of gender in the exercise ofperemptory challenges violates the Equal Protection Clause); Batson v. Kentucky,476 U.S. 79, 84 (1986) (holding that jurors could not be excluded solelybecause of their race).93. See Buchanan, 483 U.S. at 416.94. 476 U.S. 162 (1986).95. See id. at 167-73.96. Id. at 173.97. Id. at 167.98. Id. at 184.99. Id. at 178. The Court noted that even McCree, the defendant inLockhart, admitted that the jurors in the case “could have ended up on hisjury through the ‘luck of the draw,’ without in any way violating theconstitutional guarantee of impartiality.” Id. McCree argued that the processof death qualification itself biases some jurors to view the case in a certainway and was therefore unconstitutionally prejudicial against the defendantin a capital case. Id. However, the Court found this argument “illogical andhopelessly impractical” because if the same jurors could have been selectedeven without the death qualification process, there is no sense in theargument that there would be injustice if they happened to be selectedthrough death qualification instead. Id.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 229were not excluded because they belonged to a cognizable group. 100Rather, death excludables were removed from jury service becauseof their inability to follow the law. 101 Therefore, the death qualificationprocess was held not to violate the Constitution, nor was itfound to give even the appearance of unfairness, because it simplyeliminated those who could not legally obey the rules required forjurors. 102The Lockhart Court further found that even if it were to acceptthe defendant’s cognizable group argument, non-death qualifiedjurors are not a cognizable group for fair cross-sectionpurposes. 103 The Court articulated that cognizable groups for faircrosssectional analysis refer predominantly to race and gender,and not to groups based on shared attitudes. 104 Non-death qualifiersmay be excluded, even as a group, because unlike race or sex,attitudes can arguably be controlled. 105 Therefore, groups definedsolely based upon shared beliefs that make members of the groupunable to serve as jurors in a particular case may properly be excludedfrom jury service “without contravening any of the basic objectivesof the [constitutional] fair-cross-section requirement.” 106The Court reasoned further that “[b]ecause the group of‘Witherspoon-excludables’ includes only those who cannot and willnot conscientiously obey the law with respect to one of the issuesin a capital case, ‘death qualification’ hardly can be said to createan ‘appearance of unfairness.’” 107 What may be inferred fromLockhart is that even if all the empirical data is true – that deathqualifiers do have common attitudes and biases that tend to favor100. See id. at 175-76.101. Id.102. Id.103. Id. at 177.104. Id. at 176-77.105. Id. at 176.106. Id. at 177.107. Id. at 176. The Court fortified its position and summarized its holdingwith the following statement:[A] jury selected from a fair cross section of the community is impartial,regardless of the mix of individual viewpoints actually representedon the jury, so long as the jurors can conscientiously andproperly carry out their sworn duty to apply the law to the facts ofthe particular case.Id. at 184.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM230 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211the prosecution – the data appears to do little to dissuade the SupremeCourt Justices from allowing death qualifiers to sit on acapital case, so long as the jurors state they can follow their oath.2. The United States Legal System Refuses to Rely on theEmpirical ResearchWitherspoon and Lockhart best demonstrate the SupremeCourt’s refusal to rely on empirical research on death qualificationbiases. One of the most remarkable aspects of Witherspoon wasthe Court’s implicit request for further empirical data on the effectsof death qualification. 108 This request was made in responseto the Court’s review of several early empirical works regardingdeath qualification. 109 At the time, the Court found that the researchon the subject was too “tentative and fragmentary” to conclusivelydetermine that death qualified jurors are inherentlyfilled with pro-prosecution biases. 110 The Court’s consideration ofthe empirical data, however, must have created much optimism inthe scientific world that future studies could influence the Courtto acknowledge the problems inherent in death qualification. Thisoptimism must have turned to disappointment when the legal systemcontinued to reject the research.Witherspoon was certainly not alone in its rejection of the empiricalresearch. 111 In fact, Lockhart paid more attention to the108. See Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968). The Courtstated that “[i]n light of the presently available information, we are not preparedto announce a per se constitutional rule . . . .” Id. at 518 (first emphasisadded). This statement may be interpreted as a suggestion by the Court thatfurther empirical evidence may sway it in a different direction in the future.Namely, the statement may mean the Court could be convinced the deathqualification process is unconstitutional if newer and more reliable studiessupported such a conclusion.109. See id. at 517 n.10. In Witherspoon, the Court explained that it examinedand commented on the following studies: W.C. Wilson, Belief in CapitalPunishment and Jury Performance (1964) (unpublished manuscript, on filewith the University of Texas); F.J. Goldberg, Attitude Toward Capital Punishmentand Behavior as a Juror in Simulated Capital Cases (undated) (unpublishedmanuscript, on file with Morehouse College); H. Zeisel, SomeInsights Into the Operation of Criminal Juries 42 (Nov. 1957) (confidentialfirst draft, on file with the University of Chicago). Id.110. Id. at 517.111. See, e.g., Buchanan v. Kentucky, 483 U.S. 402, 415 n.16 (1987);United States v. Edelin, 118 F. Supp. 2d 36, 47 (D.D.C. 2000).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 231empirical data on death qualification than any other case. 112 Lockharttook an in-depth look at the research on death qualified jurors,but like its predecessors, did not trust the findings and heldthem inapplicable to its legal conclusion. 113 In making this determination,the Lockhart Court implicitly refuted the findings ofGrigsby v. Mabry, 114 one of the few cases that relied on the empiricaldata to conclude that death qualification produces a jury morelikely to convict. 115The Court offered great detail as to why it rejected the empiricaldata. First, the conclusion reached in Grigsby was held erroneousbecause it was based upon several of the same studiesthat were examined, and ultimately rejected, in Witherspoon. 116Second, the Court rejected many of the newer studies used inGrigsby because it felt that they lacked real world applicability. 117Third, many of the studies did not simulate actual jury deliberations,and the Court apparently believed this deviation could impactthe results of the empiricists. 118 Furthermore, none of thestudies relied on in Grigsby were able to predict what would occurif a death excludable juror was allowed on a capital jury. 119 Becauseno positive effects of allowing death excludables to hear112. See 476 U.S. 162, 167-73 (1986).113. Id. at 173.114. See id. at 171; Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983),stay granted, 583 F. Supp. 629 (E.D. Ark. 1983), aff’d as modified, 758 F.2d226 (8th Cir. 1985).115. See Grigsby, 569 F. Supp. at 1323. This finding was later affirmed bythe United States Court of Appeals for the Eighth Circuit. Grigsby, 758 F.2dat 242, 243. In Lockhart, the Supreme Court found the Grigsby analysis erroneous,because none of the studies available at the time of Grigsby convincinglydemonstrated that death qualified jurors were conviction prone. See 476U.S. at 171.116. See Lockhart, 476 U.S. at 171; see also Witherspoon v. Illinois, 391U.S. 510, 517-18 (1968). The Lockhart Court reasoned that if the studies were“too tentative and fragmentary” at the time of Witherspoon in 1968, thenthere was no reason to regard the same studies as acceptable, reliable data atthe time of Lockhart in 1985. Lockhart, 476 U.S. at 171 (quoting Witherspoon,391 U.S. at 517).117. See id. For instance, several of the studies involved participants whowere not actual jurors sworn under oath to apply the law to the facts of anactual case. Id. Because the experiments did not involve a real capital defendantwhose life hung in the balance, the Court had doubts about whetherthese studies accurately predicted the behavior of actual jurors. Id.118. Id.119. Id. at 171-72.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM232 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211capital cases were demonstrated by the studies presented to theCourt, the Court found no need to change the process, and heldthat death qualification was constitutional. 120One might argue the Supreme Court was not completely blindto the problems of death qualification but that the Court was onlyfollowing a long-held tradition of apprehension toward deathqualification studies in general. 121 One argument supporting theCourt’s refusal to rely on the research is that many social studiesare irrelevant because they are based on general studies of largegroups and do not focus on the specific individuals of the case.Thus concerns arise about how scientists can link the generalizedinformation to the particular case. 122 The Court arguably finds thedeath qualification studies inapplicable because the studies’ findingsare not necessarily descriptive of the potential jurors in theindividual case at hand. 123A second argument is that the Court may exclude social scienceresearch because of its perceived similiarity to character evidence.124 Courts may believe that the research describing humantraits and dispositions is akin to character evidence, which is “exclud[able]in most situations because its probativity is consideredas relatively slight and its potential for prejudice relativelygreat.” 125 A court treating death qualification research as characterevidence may be less willing to apply it in a particular case. 126Death qualification research is similar to character evidence inthat it focuses on the traits, beliefs, and personalities of potentialjurors and the connection of such traits to death penalty out-120. Id. at 173.121. See, e.g., id. at 171 (quoting Witherspoon, 391 U.S. at 517) (“[I]f thesestudies were ‘too tentative and fragmentary’ to make out a claim of constitutionalerror in 1968, the same studies, unchanged but for having aged some18 years, are still insufficient to make out such a claim in this case.”).122. Robert P. Mosteller, Legal Doctrines Governing the Admissibility ofExpert Testimony Concerning Social Framework Evidence, 52 LAW &CONTEMP. PROBS. 85, 100 (1989).123. See, e.g., Lockhart, 476 U.S. at 171-172.124. See Mosteller, supra note 122, at 104 (“The traditional treatment ofcharacter evidence may have broad importance for the admissibility of socialframework evidence.”).125. Id.126. See id. (“One may argue that social framework evidence generally resemblescharacter evidence and should be admissible according to rules similarto those governing character evidence.”).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 233comes: 127 “Just as character may indicate a propensity for an individualto act in a certain way, social framework evidence about arelevant group provides guidance in predicting individual conduct.”128 These modes of analysis for Supreme Court rejection ofsocial science research may be analogized to general judicial rejectionof specific social research on death qualification for similarreasons. 129These arguments, however, can be readily refuted. For instance,the argument that many social studies are irrelevant becausethey are based on general studies of large groups and do notfocus on the specific individuals of the case fails to take into accountthe obvious fact that a large study sample is needed to predictjuror behavior in specific cases because the voir dire group ineach particular case is likewise being drawn from the communityat large. 130Furthermore, the argument that courts should treat deathqualified research as character evidence may easily be rebuttedwith the fact that social science research is not intended to predictor explain the behavior of any party or witness to the trial, thepurpose for which character evidence is often introduced. 131 Instead,the purpose of social science research is to show that allhumans have inherent beliefs tied to the death penalty thatshould be taken into account when evaluating capital jury selectioncriteria, and to provide an understanding that inherent flawsexist in the jury selection system that mandate changing the constitutionalquid pro quo. 132 Because social science evidence is notutilized the same way character evidence is utilized, it should notbe treated similarly.127. See id.; Jurow, supra note 21, at 576 (hypothesizing that convictionproneness is a function of the personal beliefs of specific jurors).128. Mosteller, supra note 122, at 104.129. See, e.g., Lockhart, 476 U.S. at 173 (rejecting empirical studies ondeath qualification and holding them insufficient to support a determinationthat the death qualification process is unconstitutional).130. Rather than making the studies irrelevant, the generalization is necessaryto give the studies credibility. A study involving only the jurors of oneparticular case would lack credibility and predict nothing about juror attitudesregarding future cases.131. See KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 186 (JohnW. Strong et al. eds., 5th ed. 1999).132. See Jurow, supra note 21, at 567-68.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM234 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211Moreover, even if courts were to treat social science evidencethe same as character evidence, social science evidence should stillbe admissible under a character evidence analysis. There are somepurposes for which character evidence is allowed. 133 For example,one purpose for which character evidence is allowed is to attackthe credibility of a witness with evidence of a reputation for untruthfulness.134 Character evidence is often introduced in practiceto show potential bias of a witness as well. Similarly, social scienceevidence should be admitted to attack a jury member’s characterwith a claim that they are biased against the defendant dueto the death qualification process.Nonetheless, in Lockhart, the empirical data was still explicitlyrejected. 135 However, the specificity of the rejection of the datain the Lockhart opinion can be seen as a small victory. The LockhartCourt clearly articulated what it thought the studies werelacking and in which areas it felt they were most weak. AfterLockhart, perhaps researchers may now develop studies that attemptto eliminate the problems stated by the Court. With suchdevelopment there might be the possibility for further reexaminationof the death qualification process. There does remainthe possibility, however, that courts simply do not want to believethe data because of the disruption it would cause the jury selectionsystem. No matter what changes are performed in the subsequentresearch studies, it is possible the Court may continue tofind some way to discredit the studies, or hold them insufficient torequire a change in death qualification.IV. MANDATING QUESTIONS AIMED AT ELIMINATING DEATHQUALIFICATION BIASES: A PRACTICAL SOLUTIONIf the empirical research is accepted as true, and the repeatabilityof the findings indicates that it should, then it is obviousthere are flaws in the death qualification process. While theseproblems are easily observable, a possible solution is not as recognizable.One of the simplest solutions, one might argue, would be toeliminate death qualification altogether. However, in a nation133. See FED. R. EVID. 404, 405, 608.134. FED. R. EVID. 608.135. See Lockhart, 476 U.S. at 173.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 235where the death penalty is still an accepted form of punishment insome states, 136 such a solution is unrealistic because it wouldeliminate any use of the death penalty as a form of punishment. Ifdeath qualification were removed, the death penalty would hardlyever be used, because non-death qualifiers, now eligible to serveon capital juries, could nullify the choice of the death penalty as asentence. The dilemma is the proverbial double-edged sword:without death qualification, guilty defendants may not be convictedor sentenced to death; but if death qualification continuesin its current form, conviction prone jurors will serve in capitalcases, thereby impairing a defendant’s chances of an acquittal.The solution then lies not in a total removal of death qualification,but through a change in the form of voir dire questioning.As a general proposition, the flaws in the death qualificationprocess can be alleviated to a certain degree by mandating in capitalcases a minimum level of specific voir dire questions aimed ateliciting jurors who are death qualified, yet have a reduced level ofpro-prosecution biases. While the empirical studies suggest thatdeath qualified jurors are conviction prone and have attitude biasesagainst the defendant, it must be remembered that these are,for the most part, statistical studies. This means that while researchers’data indicates that death qualified jurors are morelikely to have the pro-prosecution beliefs mentioned above, it doesnot follow that all death qualified jurors hold such opinions. Requiredquestions should be asked, preferably by the neutral judgeduring voir dire, that are designed to extract from the veniregroup those jurors who are death qualified but do not hold proprosecutionbiased attitudes and who are not conviction prone.A. A Change in the System is JustifiableWhile a set of mandatory voir dire questions may seem like aradical change in the voir dire system, this change is appropriateand justifiable. First of all, it is not such a radical change beyondthe bounds of the law. Numerous other aspects of the voir diresystem are controlled by the courts under already-promulgatedrules of law. One such aspect of voir dire that has historically been136. See States with the Death Penalty, at http://www.deathpenaltyinfo.org/ (last visited December 7, 2004) (providing information on every statethat still imposes the death penalty).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM236 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211controlled is the allowance for and limitation of preemptory challenges.137 Additionally, judges are often given the discretion to dictatewhat types of questions will be asked as well as theprocedures used in questioning (i.e. questionnaires, one-on-one individualquestioning, etc.). 138 A number of statutes also prescribedifferent requirements for voir dire, several even specificallygeared toward regulating voir dire in capital cases. 139 Because dueprocess apparently is already presumed to permit the courts andthe legislature to be heavily involved in regulation of the voir direprocess, requiring certain questions to be asked by judges duringcapital voir dire would not be an overstep of any legal bounds.The Wainwright Court confirmed that voir dire should beregulated at least to an extent by annunciating a standard bywhich prospective jurors may be excluded for cause. 140 While theSupreme Court did not require specific questions during voir direin Wainwright, it did set the standard as to what types of jurorswere properly excludable. 141 It follows that requiring particularvoir dire questions that specifically bring to light how particularjurors fit into the Wainwright standard may also be a justifiableprocess. 142Furthermore, a mandated set of questions is justified in thatcapital voir dire has been anything but a stable practice. Thecourts have continuously had to reevaluate the process of deathqualification and change its mechanics and application. For instance,in Davis v. Georgia, 143 the Court had to decide if therewere grounds for reversible error if only one juror was improperly137. See FED. R. CRIM. P. 24(b).138. See, e.g., McCullah Memorandum, supra note 17.139. See, e.g., 18 U.S.C. § 3432 (1998) (“A person charged with . . . [a] capitaloffense shall . . . be furnished with a copy of the indictment and a list ofthe veniremen . . . stating the abode of each venireman . . . .”). While not dealingspecifically with the content of voir dire questions, this is an indication ofstatutory control and regulation of juror selection procedures.140. See Wainwright v. Witt, 469 U.S. 412, 424 (1984) (“That standard iswhether the juror’s views would ‘prevent or substantially impair the performanceof his duties as a juror in accordance with his instructions and hisoath.’”).141. Id.142. But see id. at 424-25 (stating that “many veniremen simply cannot beasked enough questions to reach the point where their bias has been made‘unmistakably clear’”).143. 429 U.S. 122 (1976).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 237excluded under the Witherspoon standard. 144 The Court held thatit was error. 145 Further, in another indication that the judiciaryshould perhaps be involved with mandating specific death penaltyvoir dire questions, the Court in Morgan v. Illinois, 146 while notmandating specific questions as proposed here, did determine thatcertain questions were not specific enough to effectively achievethe goal of death qualification. 147 The issue in Morgan waswhether “general fairness and ‘follow the law’ questions” were sufficientto satisfy the defendant’s right to make inquiry regardingwhether juror’s were biased. 148 The Court held that general inquiriesinto a prospective juror’s ability to follow the law were not sufficientto effectively determine if that juror could in actualityfollow the law. 149 This implies that specific inquires are requiredby the Court to truly understand a venire person’s ability to servein accordance with the law. If such specificity is required in questioning,the Court should mandate those particular questions thatit decides are specific enough to ensure death qualification’s effectiveness.One of the key justifications for mandating specific voir direquestions in capital cases is the importance for the court system to144. Id. at 123.145. Id. (“[I]f a venireman is improperly excluded even though not socommitted [to voting against the death penalty regardless of the facts], anysubsequently imposed death penalty cannot stand.”). The issue in Davis waswhether the death penalty should stand when a juror who qualified for exclusionunder the Witherspoon standard because he would not automaticallyvote against the death penalty was excluded by the prosecution because hehad some reservations about the form of punishment. Id. Because he wasproperly death qualified, it was held to be reversible error to exclude the juror.See id.146. 504 U.S. 719 (1992).147. Id. at 734-35.148. Id. at 734.149. Id. at 734-35 (“Witherspoon and its succeeding cases would be in largemeasure superfluous were this Court convinced that such general inquiriescould detect those jurors with views preventing or substantially impairingtheir duties in accordance with their instructions and oath.”). The Court wasconcerned that when people are asked generally if they could follow the lawin sentencing, prospective jurors might believe that they could be impartialwithout truly realizing the effects that their death penalty attitudes wouldhave on their ability to follow the juror oath: “It may be that a juror could, ingood conscience, swear to uphold the law and yet be unaware that maintainingdogmatic beliefs about the death penalty would prevent him or her fromdoing so.” Id. at 735.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM238 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211maintain an impression of fairness and impartiality to the public.Lockhart specifically stated that one of the purposes of having afair cross-section requirement is to “preserv[e] ‘public confidencein the fairness of the criminal justice system.’” 150 Grounds forchange exist if the public does not feel that a defendant is given afair chance in a capital trial. 151 That being so, a court has a duty toimprove its image in the eyes of citizens. Any lack of faith by thecitizenry in the legal system’s fairness and impartiality may beargued to undermine the validity of any decisions made by a court.Moreover, the impaneling of pro-prosecution jurors removesfundamental fairness by inhibiting the capital defendant’s right toa reasonable doubt. As empiricists show, such jurors are morelikely to believe the defendant is guilty even before any evidence ispresented; 152 therefore, less is arguably needed for them to believethe defendant is guilty beyond a reasonable doubt. This in turndenies a defendant the fundamental fairness that was desired ofour system when the reasonable doubt standard was established.Despite this possibility, as has been repeatedly held by the Court,the empirical data on death qualification is not considered sufficientto overturn the death qualification process on constitutionalgrounds. 153 In other words, death qualification is constitutionaland does not deny a capital defendant of his fundamental rightsaccording to the Court. However, nothing in this proposal wouldrequire the Court to classify death qualification as unconstitutional.The suggestion is simply that the empirical data be heldsufficient to warrant an alteration of the process from its currentform. Death qualification would thus remain constitutional; yet,through further questioning to elicit pro-prosecution biases, society,and more importantly defendants, would be assured of thefairness of the system.Coincidentally, it appears that courts might be on the verge ofmandating specific questions based on the active role the law hastaken in supervision of capital voir dire. For instance, numerousdecisions have established rulings on certain questions in capital150. Lockhart, 476 U.S. at 174-75.151. While the courts choose to not rely on the empirical studies indicatingdeath qualification biases, there is no indication that the nation at largewould not believe in the veracity of the research.152. See discussion supra Part II.153. See discussion supra Part III.B.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 239voir dire that were deemed either to be relevant or in error. 154 Inaddition, legal analysts have consolidated lists of specific questionsuggestions based upon these court rulings in a number offorms. 155 Moreover, it is a general principal that the trial judgehas the discretion to decide which questions to allow and disallowand how the process of voir dire is to be conducted. 156 Arguably, ifcourts are maintaining control over what questions should orshould not be excluded from voir dire, they should also have theauthority to require particular questions. Although mandate is aconsiderable leap from simple allowance of certain questions, it isthe best way to ensure eradication of death qualification biases.In the alternative to requiring specific voir dire inquiries,questions could be developed as a practitioner’s guide. 157 Judgescould be piloted with a series of specific questions geared towardeliciting death qualification biases. There are, however, problemswith such a system. First, if such questions are only to be suggestions,there is the strong possibility they will not be used in everycase, or even a majority of cases. If this result ensues, the changewill not purge the system of the biases and unfairness inherent inthe current death qualification process. In addition, questions for154. See, e.g.,VERNON’S OKLAHOMA FORMS 2D: CRIMINAL LAW PRACTICE ANDPROCEDURE § 21.24 (2002) (informing that the Oklahoma Criminal Court ofAppeals will review a juror’s entire voir dire to determine if the trial courtproperly excluded that juror for cause and indicating that specific questionsmay be held to be error when they are worded insufficiently or unfairly).155. See, e.g., id. § 21.25:Relevant inquiries by counsel may include questions concerning the“three punishment options, their beliefs about the death penalty,their religious affiliation, their faith’s position on the death penalty,whether they would consider mitigating evidence and whether theywould follow the trial court’s instructions.” The meaning of a life sentenceand a sentence of life without parole, however, have been heldan improper subject for voir dire. In addition, a capital defendant isentitled to have prospective jurors informed of the race of the victimand questioned on the issue of racial bias when accused of an interracialcrime. As to any other “special circumstances” that may berelevant in the case, the trial judge retains discretion concerning theform and number of questions on the subject, including the decisionwhether to question the venire individually or collectively.Id. § 21.25 (footnotes omitted).156. Id. § 21.25; see, e.g., Morgan v. Illinois, 504 U.S. 719, 734-35 (1992);Davis v. Georgia, 429 U.S. 122, 123 (1976).157. See discussion infra Part IV.B.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM240 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211a practitioners guide are difficult to formulate because many ofthe biases require a number of questions, rather than just onequestion per possible bias, to elicit the proper information. Thus, acollection of possible questions is not the desired solution. Rather,this Comment seeks to require judges to use questions they decideare detailed enough to elicit the aforementioned biases.B. The Questions that Could Make Death Qualification MoreEffectiveThe proposed solution of requiring specific voir dire questionshas the purpose of eliminating the biases that many empiricistsbelieve are held by a majority of death qualifiers. 158 As already articulated,not all death qualified jurors have these proprosecution,crime control biases; therefore, it could be possible toachieve a death qualified jury who is not conviction prone. To accomplishthis, perhaps it should be left to the researchers themselvesto develop an empirical system where specific questionscould be asked to find this small group of “ideal jurors” sought in acapital case. This would not be the first time the legal system hasinvited the scientific world to conduct research in this area. 159However, until the social scientists take up this calling, an abundanceof the specific questions that may achieve this sought-aftergoal of an unbiased capital jury may be found simply by examiningsome of the already existing questions asked by judges and attorneyswho have tried capital cases. Many questions currentlyexist that are valuable in eliciting the biases of death qualifiers. Ifsome of these questions were to become mandatory in all capitalcases, it would serve the purpose of establishing the appearance ofan impartial system.A problem empiricists found is that death qualifiers who arelegal authoritarians are more likely to believe prosecutors andtheir witnesses. 160 Instead of simply asking generally whether ajuror could follow the law, the bias of legal authoritarianism could158. See discussion supra Part II.159. See Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968) (indicatingthat the data adduced and presented at the time was insufficient to hold thatthe death qualification process was unconstitutional). The Witherspoon opinionmay suggest that further research regarding death qualification could beenough for the Court to invalidate the current process.160. See Thompson et al., supra note 5, at 105; see also supra note 50.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 241be extracted by simple questions. For instance, a juror could beasked the following: “Would you judge the testimony of a law enforcementofficer as you would that of any other witness, i.e., notgive his or her testimony any more or less weight merely becausehe or she is a law enforcement officer?” 161 This is by no meansmeant to imply that one simple question will be able to elicit thesought-after biases or lack thereof, because as the courts have recognized,162 jurors may not realize how their attitudes could actuallyeffect their ability at trial. 163 Several related questions,however, if specific enough, should be helpful to determine how ajuror would respond to different situations. For example, in a NewYork case, jurors were asked several specific questions related toauthoritarianism attitudes:What is your opinion, if any, about prosecutors in general?. . . What is your opinion, if any, about defense attorneysin general? . . . When testifying as a witness in acase, do you believe that police officers or FBI agentshave more credibility, less credibility, or the same credibilityas an ordinary citizen? . . . [and] Do you believe thatif a police investigation results in an arrest, the suspectis: Guilty, Probably Guilty, [or] Probably Innocent? 164These types of questions would be useful in uncovering those potentialjurors who have the same biases feared by the empiricists.Several other juror biases may be determined from specificvoir dire questions as well, including juror attitudes about crimeand whether or not jurors possess the crime control biases that amajority of death qualifiers have been alleged to possess. 165 Forexample, several questions on this matter were used in UnitedStates v. Jones, including: “In your opinion, what are the three (3)most important problems with law and order today,” and “[w]hat,161. Juror Questionnaire at q.69, United States v. Frank, 11 F. Supp. 2d322 (S.D.N.Y. 1998) (No. 97 CR 269(DLC)), available athttp://www.capdefnet.org/fdprc/contents/litigation_guides/guideframe.htm(last visited Sept. 17, 2004) [hereinafter Juror Questionaire].162. See, e.g., Morgan v. Illinois, 504 U.S. 719, 735 (1992).163. See Ronald C. Dillehay & Marla R. Sandys, Life Under Wainwright v.Witt: Juror Dispositions and Death Qualification, 20 LAW & HUM. BEHAV.147, 148-49 (1996).164. Juror Questionnaire, supra note 161 at q.65-68.165. See supra notes 40-54 and accompanying text.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM242 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211in your opinion, should or could be done about the crime problem?”166 While in form these questions may appear general, theyare open-ended enough to elicit a wide spectrum of informationand perhaps richly detailed answers that may shed light upon theattitudes of a venire person. Questions like these may be helpfulin understanding what veniremen truly feel about the criminaljustice system by eliciting deeper ideas than just their opinionabout whether they can impartially serve or not. A comparison ofthese specific questions with a more commonly used general question,such as “[w]ould your views on capital punishment influenceyour verdict on whether the Defendant is guilty or innocent,” 167shows how the more specific questions can elicit more complete informationabout what a venire person truly believes and how he orshe will interpret the trial. Instead of simply answering “yes” or“no” to whether the individual believes he or she will be impartial,requiring longer explanations with their answers may help uncoverdeeper beliefs that can effect the way one will act as a juror.This form of questioning will uncover specific attitudes that willenable attorneys to effectively use their voir dire challenges.The many ideologies associated with the “crime control” approachcan each individually be revealed through the appropriatequestions. For instance, crime control believers feel less stronglyin the presumption of innocence than those with due process beliefs.168 Questions to extract this bias could include having the venireperson rate on an agreement scale how strongly he or shebelieves in such statements as the following:A defendant in a criminal case should testify or producesome evidence to prove he or she is not guilty; . . . [a] defendantarrested for murder is presumed innocent; . . .[and it] is possible that an innocent person could be accusedand brought to trial for a crime he or she did not166. Stipulated Joint Juror Questionnaire at q.47, 52, United States v.Jones, No. 5:95-CR-047-C (N.D. Tex. 1995), aff’d, 132 F.3d 232 (5th Cir.1998), aff’d, 527 U.S. 373 (1999), available at http://www.capdefnet.org/fdprc/contents/litigation_guides/guideframe.htm (last visited Sept. 17, 2004)[hereinafter Stipulated Questionnaire].167. F. LEE BAILEY & KENNETH J. FISHMAN, COMPLETE MANUAL OFCRIMINAL FORMS § 51:6 (3d ed. 2003).168. See Fitzgerald & Ellsworth, supra note 9, at 34; supra notes 44-50and accompanying text.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 243commit. 169This agreement scale, along with a required explanation of potentialjurors’ beliefs, would make the judge aware if potential jurorsactually believe in the presumption of innocence.Similarly, death qualifiers believe it is better to convict an innocentman than to acquit a guilty man. 170 This bias may bebrought to light by requiring the venire person to rate his or heropinion and explain his or her beliefs about such statements as:“It’s better for a guilty person to go free than to convict an innocentperson.” 171 Also, crime controllers are more likely to believethe prosecution and have attitudes about each side before trial, 172so a useful inquiry may include a question asking what is the firstthing that comes to the venire’s mind when he or she thinks of adefense attorney or prosecution attorney. 173 This would allow avenire person to explain any prejudices that he or she may havetoward either side.One of the problems with death qualification voir dire in itscurrent form is that jurors who are only asked general questionsare not given enough information to accurately predict or demonstratehow they will perform and react to the evidence at trial. 174The dilemma is that the process “requires prospective jurors answeringquestions about capital punishment during voir dire tomake self-judgments about unknown circumstances.” 175 Becausecurrently used voir dire questions may not be specific enough toinform individuals of what real life issues may confront them andeffect their judgments at trial, responses to these current voir direquestions may be worthless because they do not accurately reflecthow that potential juror will actually behave at trial. Studies havefound that “a substantial percentage of juror candidates cannot beexpected to know what their role would entail were they to becomemembers of a jury in a capital case, and would, therefore, be likelyto be inaccurate when responding to questions based on [Wain-169. Juror Questionnaire, supra note 161, at q.162, 164, 169.170. Thompson et al., supra note 5, at 107-08.171. Juror Questionnaire, supra note 161, at q.172.172. Fitzgerald & Ellsworth, supra note 9, at 34.173. Stipulated Questionnaire, supra note 166, at q.71.174. Dillehay & Sandys, supra note 163, at 148-49.175. Id. at 148.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM244 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211wright v.] Witt.” 176 This problem may be alleviated by asking specificquestions aimed at eliciting known biases that may emergefrom death qualifiers at trial. The problem can be further resolvedby providing veniremen with hypotheticals creating situationswhich may help the prospective jurors better understand whattheir jobs will be and thereby increasing the accuracy of their voirdire responses.The use of hypothetical situations is thus another possibilitythat could help discover biases. Situational questions are recommended,in that they place in potential jurors’ minds real imageswhile answering voir dire questions. For example, the judge couldgive the following hypothetical in a homicide case:Assume that you have been chosen as a juror in a murdercase and that you and other jurors have unanimouslyfound the person guilty of multiple intentional murderswith no legal justification, beyond a reasonable doubt.Therefore, in this sense you know that the person isguilty of more than one murder. Additionally, the juryhas unanimously found the person guilty of substantialplanning and premeditation beyond a reasonable doubt.This constitutes an aggravating circumstance under thelaw and permits the jury to impose the death penalty.Now, in a case like that, could you in good conscience votefor a sentence other than the death penalty or would youvote for the death penalty? 177Presumably, upon hearing this fact scenario, the jurors willplace themselves in the hypothetical situation and other attitudes,besides simply whether or not they think they can follow the lawand their juror oath, will rise to the surface and become apparent.For instance, if the venireman were asked the previous question,178 the goal would seem to be to determine the individual’sability to impose the death penalty. However, other attitudes mayalso be learned from the venire’s response, such as the venire’s176. Id. at 160.177. Motion to Supplement The Court’s Voir Dire Inquiry, As Necessary,And Requested Supplemental Inquiry at q.C.1., United States v. Culbert, No.CR-92-81127 (E.D. Mich. 1995), available at http://www.capdefnet.org/fdprc/contents/litigation_guides/guideframe.htm (last visited October 7, 2004)[hereinafter Motion to Supplement].178. See supra note 177 and accompanying text.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 245ability to use mitigating factors in deciding on the proper punishmentin a case. The use of hypotheticals would be effective in elicitingsuch factors because the hypotheticals are not based onabstract theoretical concepts, but rather on specific situations.When jurors contemplate specific situations in the form of hypotheticals,they may go through the same thought processes thatthey would use at trial, including feeling all of the attitudes theyas human beings use in making decisions. Therefore, hypotheticalswould be a useful tool for the courts to use to discover if, whileone may be death qualified, there are other attitudes that may getin the way in a real life factual situation that would bias the individualas a juror.A slight variation on the use of hypotheticals would ask thepotential juror to place himself in the shoes of the defendant. Thejudge could ask, for instance, the following: “If you were sitting inthe place of the defendant . . . charged with the same offenses,would you be willing to have a juror in your present frame of mindsit in judgment on your case? . . . Please explain.” 179 This wouldenable the venire person to think about whether or not he wouldwant himself as a juror. This arguably would then be helpful inascertaining that individual’s biases.Another way of dealing with mitigating factors other than hypotheticalsis to simply direct questions to the venire group regardingthe specific mitigating factors. For example, in a casewhere race will possibly be an issue, the judge could ask: “In decidingpunishment in a murder case would you consider, if a defendantproved by a preponderance of the evidence, [that he]‘suffered the effects of racial discrimination . . .’ as a reason ormitigating circumstance not to vote for imposition of the deathpenalty?” 180 The effect of other mitigating factors could also be inquiredabout by asking similar questions, such as: “In decidingpunishment in a murder case would you consider, if a defendantproved by a preponderance of the evidence, [that he] ‘was introducedto drug abuse at an early age . . .’ as a reason or mitigatingcircumstance not to vote for imposition of the death penalty?” 181Questions regarding mitigating factors are important in death179. Juror Questionnaire, supra note 162, at q.222.180. Motion to Supplement, supra note 177, at q.B.3.181. Id. at q.B.4.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM246 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211penalty cases because, as already indicated, certain death qualifierattitudes diminish the weight the jury gives toward such mitigatingfactors. 182This is just a small sample of some of the types of more specificquestions that should be required during death qualification.Concededly, there are a number of points of opposition to this proposedsolution. Some might believe that mandatory specific questioningwould be overly time-consuming. This assumption isuntrue, because such questioning would not make voir dire anylengthier than it has already become in capital cases. 183 For instance,in some cases voir dire has lasted for days and evenweeks, 184 and some juror selection sheets contain hundreds ofquestions. 185 Furthermore, many of the same questions recommendedhere are from actual cases, so nothing radically differentwould be added to voir dire. Instead, this proposal would create auniform system of the best questions available to elicit deathqualification juror biases. Juror questionnaires already encompassa wide variety of topics, and are already quite time-consuming. 186Thus, including certain mandatory questions would not likely increasethe time normally devoted to voir dire to an intolerablelevel. Some juror selection sheets even ask questions such as, “doyou own a pet,” 187 or “list your [three] favorite television shows.” 188While such questions are recognizably important to jury selectionby helping attorneys understand the personality of a venireman,they are no more important than mandatory questions to elicit jurorbias traditionally inherent in death qualified jurors. Bothtypes of questions may be asked, or such personality questionsmay be altered so as to also elicit the potential juror biases deathqualification should bring to light. Therefore, the time consump-182. See Goodman-Delahunty et al., supra note 51, at 269-70.183. Death qualification voir dire is by no means, even in its current form,a short process. See, e.g., Recommended Jury Selection Procedures at §§ C-D,United States v. Frank, 11 F. Supp. 2d 322 (S.D.N.Y. 1998) (No. 97 CR 269(DLC)), available at http://www.capdefnet.org/fdprc/contents/litigation_guides/guideframe.htm (last visited Sept. 17, 2004).184. Id. at § D.185. See, e.g., Stipulated Questionnaire, supra note 166 (containing aforty-seven page questionnaire with over two hundred combined questions).186. See, e.g., id.187. Id. at q.53.188. Id. at q.91.

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM2004] MANDATORY VOIR DIRE QUESTIONS 247tion argument must fail.Another possible criticism to having a mandatory minimumset of voir dire questions is that if, as is suggested, attorneys arealready using these questions, why then should courts mandatewhat is already in practice? The answer is simply that not all attorneys– or judges – use the proper questions that can elicit thebiasing attitudes of death qualified jurors. As many groups advocate,one of the biggest problems with capital cases is inadequaterepresentation for the defendant. 189 If defendants are poorly represented,it would be best to at least furnish them with a jury thatis not prone to convict them from the start of the trial. Mandatoryquestions, presented by the judge and aimed at eliciting a deathqualified, unbiased jury, would provide the defendant a chance ofhaving his story believed, regardless of his attorney’s abilities.V. CONCLUSIONThe alleged problems with death qualification are not unknownto the courts. Courts have addressed the issue on severaloccasions and have repeatedly failed to recognize the biases inherentin the process, and the resulting obstacles for the defendant.While the current death qualification process has been deemedconstitutional, courts still should attempt to remedy the biases inherentin the current process. Courts have reworked the processon other occasions; thus, courts should accept the present challenge,if for no other reason than to preserve the appearance offairness in capital cases. However, any belief that all jurors whoare death qualified have biases and attitudes that favor the prosecutionis an overstatement. While empirical data indicates thatjurors who have passed death qualification are more likely to beconviction prone and hold pro-prosecution beliefs, it is incorrect tosay that all death qualified jurors hold those attitudes. Because ofthis, it is possible to whittle down the class of death qualifiers furtherto those death qualifiers with reduced biases against the defendant.This could be accomplished by mandating specificquestions designed to discover those death qualified jurors withthe ability to be impartial. This would enable capital defense attorneysto make more effective use of their preemptory challenges189. See, e.g., Innocence Protection Act of 2001, S. 486, 107th Cong. § 201(2001).

NASON, VOL 10, ISSUE 1 PP 211 - 2481/6/2005 1:20 PM248 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211and hopefully, make it easier to obtain a jury less stacked againstthe defendant.This is a simple solution to the problem with arguably no adverseeffects. Even if courts are correct in their assumptions aboutthe empirical data, no harm would result from implementing thisprocedure. Yet, if the courts have been wrong in their rejection ofempirical statistics on the death qualification process, this revisioncould tremendously increase a defendant’s chances of obtaininghis guaranteed right to a fair, impartial trial. 190 Such anessential and fundamental constitutional right cannot, and shouldnot, be denied.Jesse Nason190. See U.S. CONST. amend. VI.

PLAIN VOL 10, ISSUE 1 PP 249 - 2781/6/2005 1:37 PMResults Above Rights? The No ChildLeft Behind Act’s Insidious Effect onStudents with Disabilities“Education, to be sure, is not a ‘one size fits all’ business.” 1I. INTRODUCTIONThe Federal No Child Left Behind Act (NCLB), passed inJanuary of 2002, 2 will indisputably blaze a new public school educationpath adverse to the directives of the Individuals with DisabilitiesEducation Act (IDEA). 3 The NCLB accentuateseducational quality, school accountability and school choicethrough mandatory testing at specified points in a student’s educationaldevelopment. 4 Query whether the NCLB and its mandatorytesting initiative will have a positive impact on schoolchildren, our nation’s most valuable commodity, or if it is anotherineffective policy instrumentality effervescing from bureaucraciesfar removed from the educational trenches. Proponents publicizethe NCLB as a landmark measure capable of ensuring that onlythe highest educational standards are practiced as well aspreached in American schools. Opponents argue that the NCLB’stesting mandate is nothing more than an onerous administrativeprocedure void of any educational assistance. Regardless of whereone falls on this spectrum, the NCLB directives encroach upontesting participation rights previously afforded students under theIDEA. 51. United States v. Virginia, 518 U.S. 515, 542 (1996).2. No Child Left Behind Act, 20 U.S.C.A. § 6311(b)(3)(C)(v)(I) (West2003) [hereinafter NCLB].3. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400–1487(West 2000) [hereinafter IDEA].4. 20 U.S.C.A. § 6311(b)(3)(C)(v)(I).5. 20 U.S.C. § 1414(d)(1)(A)(v).249

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM250 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249The IDEA grants numerous rights to students with disabilities,including the right to participate, if at all, in school or district-widetesting. 6 Students with disabilities may participate inthe same manner as their regular education peers. 7 Concomitantly,depending on individual needs, students may be exemptfrom participation or may participate alongside their mainstreampeers with testing accommodations or substantive modifications. 8By compelling school districts to initiate standardized testing forall students, the NCLB infringes on the rights previously bestowedupon students with disabilities. Infringement may denystudents with disabilities a meaningful educational benefit, resultingin a substantive violation of the IDEA. 9 Further, failure tocomply with an IDEA measure may result in a procedural violationif noncompliance causes a loss of an educational opportunity.10Under the NCLB, absent extreme circumstances, all students,regardless of individual disability, participate in state or districtwideassessments. 11 Conversely, pursuant to the IDEA, a studentparticipates in testing depending on the student’s disability. 12Therefore, the NCLB testing mandates interfere with students’needs, as students with disabilities require individualized considerationand attention. This individualized attention is documentedin a student’s Individualized Education Plan (IEP). 13 Once a pro-6. Id.7. Id.8. Id. Accommodations refer to changes in testing materials or proceduressuch as presentation, response, setting, and scheduling. Modificationsrefer to the manner of participation and include extended time, breaking thetest into parts, computer access for essay exams, and the use of calculators.See JUDY W. WOOD, ADAPTING INSTRUCTION TO ACCOMMODATE STUDENTS ININCLUSIVE SETTINGS 144-45 (3d ed. 1998).9. See Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458U.S. 176, 200-01 (1982).10. See generally 20 U.S.C § 1415.11. See NCLB, 20 U.S.C.A. § 6311(b)(3)(C).12. See IDEA, 20 U.S.C. § 1414(d)(1)(A)(v) (West 2000).13. An IEP is a document describing a child’s skills and stated goals forservices as well as strategies for achieving those goals. INCLUDING CHILDRENWITH SPECIAL NEEDS IN EARLY CHILDHOOD PROGRAMS 45-70 (M. Wolery & J.S.Wilbers eds., National Association for the Education of Young Children)(1994) [hereinafter Wolery & Wilbers]. The IEP includes a student’s performancelevel, annual goals for the particular student, type of education and servicesto be rendered, extent of mainstreaming, key dates, transitional

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 251vision is codified in the IEP, the student has a vested right in theprovision. The NCLB and its mandatory testing scheme may violatethe vested rights of a student with disabilities as the testingscheme may run counter to the testing determination previouslyreflected in the student’s IEP.This Comment examines both IDEA rights and NCLB obligations,illustrating how the NCLB overreaches into the individualizedtesting considerations the IDEA affords students withdisabilities. Additionally, this Comment addresses student rightsunder the IDEA and the likelihood that the NCLB will eradicatetesting rights of students. Section II explains student testingrights under the IDEA, new and conflicting guidelines promulgatedin the NCLB, and IDEA violations educators confront in reconfiguringpedagogical procedures to fit the NCLB. Section IIIanalyzes the seminal case, Bd. of Educ. of the Hudson Cent. Sch.Dist. v. Rowley, and its progeny to reveal factors courts consider inadjudicating procedural and substantive violation claims associatedwith planning and implementing student educational opportunities.Section IV explores the relationship between testing andeducational placement for students with disabilities to demonstratethat, in addition to potential IDEA violations, it is both impracticaland detrimental to educate certain students in a mannerconsistent with their mainstream contemporaries. Finally, SectionV suggests utilizing an elevated standard for students’ educationto guarantee focus on the students’ individual needs above sweepingdirectives. Under this heightened standard, it may be possiblefor the IDEA and the NCLB to stand in peaceful coexistence withoutthe threat of litigation, and, more importantly, the infringementon a student’s right to an appropriate education.II. PUBLIC SCHOOL RESPONSIBILITY: IDEA RIGHTS AND NCLBDIRECTIVESThe following section elucidates the design of the aboveentitlededucational decrees and their ubiquitous impression onthe school landscape. Section A summarizes the IDEA, the landmarkinitiative promulgated to target the individual needs ofservices, and procedures for measuring student progress and informing parents.See also 20 U.S.C. § 1414(d)(1)(A)(i)-(viii). The IEP is the mechanism forcarrying out IDEA provisions. Wolery & Wilbers, supra.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM252 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249unique learners. Section B describes the NCLB, its purported rationaleand its unrealistic objectives. Finally, Section C augmentsthe conflicts spawned by the NCLB and the resulting deleteriouseffect on student rights.A. The IDEA and the Rights of Students with DisabilitiesThe IDEA demarcates students’ rights and correspondingschool responsibilities towards students with disabilities. 14 TheIDEA’s purpose is to guarantee that students with disabilities areprovided a “free appropriate public education” (FAPE) throughspecial education and services implemented to address theirunique needs. 15 The Act establishes that students with disabilitieshave the right to a unique education tailored to individual needs. 16A “free appropriate public education” is a publicly funded and supervisededucation measured by state standards, executed in accordancewith each student’s IEP and designed to provide aneducational benefit. 17 States are eligible to receive funds under theIDEA provided that the states employ a myriad of policies andprocedures including student evaluations and IEP implementation.18In addition to these guidelines, the IDEA also requires thatstudents with disabilities participate in state and district-wide assessments.19 Under the IDEA, students with disabilities may participatewith or without accommodations. 20 Where appropriate,local education agencies draft and execute alternate assessmentguidelines for those who cannot partake in the regular state ordistrict-wide assessment. 21 A team of educators draft each student’sIEP, 22 delineating testing modifications and accommoda-14. See IDEA, 20 U.S.C. § 1400(d)(1)(A)-(C) (West 2000).15. Id. § 1400(d)(1)(A).16. See id. § 1400(d)(1)-(3).17. Id. § 1401(8).18. See id. § 1412(1)-(16). These policies and procedures assist with identificationand education of unique learners and include but are not limited to:FAPE, IEPs, least restrictive environment, procedural safeguards, evaluation,confidentiality, general supervision, eligibility, personnel standards, andperformance goals and indicators such as individual assessments. Id.19. Id. § 1412(a)(17)(A).20. See id; see also Wolery & Wilbers, supra note 13.21. Id. Alternate assessments are any method of evaluating progress differingfrom the state or district model. Id.22. See IDEA, 20 U.S.C. § 1414(d)(1)(A)(i)-(viii); id. § 1414(d)(1)(B). The

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 253tions to be utilized in the assessments. 23 Further, the IEP teamdetermines how, if at all, the student will be assessed. 24 Therefore,the IDEA leaves testing procedures to the IEP team to ascertainhow to measure individual student progress as the team is mostfamiliar with the student and best equipped to make this determination.The IDEA’s underlying purpose is to meet the “unique needs”of students with disabilities. 25 A unique need could require alterationof the manner in which a student participates in an assessmentor it could necessitate refraining from academic assessmentsaltogether. In order to comply with individual needs, the IEP determinationsmust be made on an individual basis. What facilitatesprogress for one student may not benefit another, even ifboth students have the same disability. Accordingly, a student’sunique needs determine whether the student should participate instate or district-wide testing either with accommodations orthrough an alternative assessment. Moreover, unique needs maydictate that the student refrain from assessments altogether,without regard to arbitrary numbers or statistics promulgated byany agency.In addition to testing schema, safeguards exist to ensure, at aminimum, that schools follow certain procedures when executing astudent’s IEP. 26 First, the IDEA gives parents an opportunity toinspect all records that pertain to their student’s education. 27 Concurrently,the statute requires that parents receive written noticeof any change or addition to the student’s IEP. 28 When, in thecourse of pedagogical events, parents disagree with either currentprocedures or the IEP’s substance, parents have the opportunityto present their grievances at mediation. 29 Depending on the degreeand severity of the grievance (or the temperament of the par-IEP is the mechanism for carrying out IDEA provisions. See generally id. §1414.23. Id. § 1414(d)(1)(A)(v)(I).24. Id. §1414(d)(1)(A)(v)(I)-(II). The IEP team, consisting of teachers, administrators,and parents is responsible for drafting the student’s IEP in accordancewith the student’s individual needs. Id. § 1414(d)(1)(B)(i)-(vi).25. Id. § 1400(d)(1)(A).26. Id. § 1415(b).27. Id. § 1415(b)(1).28. Id. § 1415(b)(3)(A)-(B).29. Id. § 1415(e)(1).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM254 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249ents and/or school district), mediation may be ineffective. Subsequently,a parent still troubled by perceived educational improprietymay seek redress by filing a complaint with the local schoolboard requesting an impartial due process hearing to determinewhether the school district has complied with the Act. 30 After exhaustingthese remedies, a parent may bring a civil action in federalcourt. 31The procedural guidelines promulgated in the IDEA seemstraightforward, unproblematic, and easy to employ at firstglance. 32 To the discerning eye of an experienced educator, however,any procedure purporting simplicity is all too illusory. 33 Toadd to the labyrinthine procedural exigencies, the United StatesSupreme Court, in Bd. of Educ. of the Hendrick Hudson Cent. Sch.Dist. v. Rowley, 34 determined that the standard for “free appropriatepublic education” is tantamount to an educational plan “reasonablycalculated to enable the child to receive educationalbenefits” and educational services falling below this level wouldnot suffice. 35 Further, the Court determined the point at whicheducational services, or the lack thereof, amounted to a substantiveviolation of a student’s rights. 36 Thus, given the extent of Congress’devotion to the rights of students with disabilities, the longhistory of case law, and the Supreme Court’s interpretation offederal legislation, public school education of students with disabilitiesis unequivocally of grave concern. Accordingly, each andevery act, ordinance, or policy initiative aimed at public educationmust be drafted with assiduous precision, taking into considerationhow each measure might affect students’ preexisting substantiverights and procedural safeguards put in place to protect those30. Id. § 1415(f)(1).31. Id. § 1415(i)(2)(A).32. It would appear that such detailed legislation, coupled with a societaltrend toward litigation, would yield strict adherence to at least the proceduralguidelines established in IDEA. See PHILIP CHINN & DONNA GOLLNICK,MULTICULTURAL EDUCATION IN A PLURALISTIC SOCIETY 172 (Prentice Hall1998).33. At the risk of sounding redundant, this skepticism is evidenced bythe long history of case law outlining both procedural and substantive violationsof the IDEA. See discussion infra Part IV.34. 458 U.S. 176 (1982).35. Id. at 207 (interpreting the IDEA’s predecessor statute, the Educationfor All Handicapped Children Act).36. See id. at 206.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 255rights. Therefore, examination of the NCLB, as well as the additionalresponsibilities Congress imposes on schools, is essential todetermine how the two acts coordinate with each other.B. The Changing Face of Pedagogic Practice: Implementation ofthe No Child Left Behind Act 37On January 8, 2002, Congress passed the NCLB, touted asthe most sweeping piece of educational legislation since the Elementaryand Secondary Education Act became law during theJohnson Administration. 38 The purpose of the NCLB is to offerstudents the chance to acquire a quality education. 39 According tothe NCLB, Congress’s vision of a “quality education” is equivalentto competence in state academic assessments which purportedlymeasure a state’s “challenging . . . academic standards.” 40 In addition,parents are given school choice options if the school fails tomeet state-mandated expectations. 41 Each states’ education departmentdrafts guidelines disseminating what the state determinesshould be taught in the public schools. 42 After establishingthese academic standards, students participate in mandatory district-widetesting to examine whether schools are successfully implementingthese criteria. 43 To receive federal funds, a public37. This synopsis is not intended to be comprehensive concerning theplethora of responsibilities and requirements bequeathed upon schools. Insteadthis account of the NCLB is intended only to identify the NCLB provisionshostile to testing rights of students with disabilities under the IDEA ascodified in accompanying IEPs.38. See U.S. Department of Education, Introduction: No Child Left Behind,at http://www.ed.gov/print/nclb/overview/intro/index.html (last visitedDecember 1, 2004). In addition to representing a sweeping overhaul of federalefforts to support secondary and elementary education in the United States,No Child Left Behind also reauthorizes the Elementary and Secondary EducationAct. See id.39. See NCLB 20 U.S.C.A. §6301 (West 2003).40. See id.41. Id. § 6316(b)(1)(E)(i). More succinctly, if a certain percentage of studentsare not meeting the standards (a euphemism for “failing”) on end-ofyeartests at particular schools, parents are free to place their children in anotherschool. See id. Whether removing a student and relocating her to a foreignscholastic environment will cause the student to no longer “fail” isbeyond the scope of this Comment.42. 147 CONG. REC. H10083 (daily ed. Dec. 13, 2001) (statement of Rep.Pryce).43. Id.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM256 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249school system must comply with the NCLB. 44 Few would opposethe idea of calculating whether students are learning appropriateacademic skills; however, the NCLB, in its present form, may havedifficulty achieving its intended results because, at least with respectto students with disabilities, such students may not demonstratecomprehension through standardized testing.Pursuant to the NCLB, states must design demanding academicnorms in math and reading that apply to all students. 45 Inaddition, states are required to create and implement a system toevaluate whether schools have met state-authorized “adequateyearly progress” measurements. 46 Included in the definition of“adequate yearly progress” is a proviso obliging “separatemeasurable annual objectives for continuous and substantialimprovement for . . . [t]he achievement of . . . students with disabilities[.]”47Thus, states must decide on a minimum percentage of studentswith disabilities required to meet proficiency standards. 48Though states are free to assign this percentage, at least ninetyfivepercent of the students in each subgroup must participate intesting for a school district to meet adequate yearly progress standards.49 Further, students are to be tested at least once fromgrades 3 to 5, 6 to 9, and 10 to 12. 50 The assessments are designedto account for one-hundred percent student participation, regardlessof subgroup categorization, or the implementation of accommodationsor adaptations. 51 Finally, the local education agency isrequired to submit a plan to the state education agency demon-44. See id.45. 20 U.S.C.A. § 6311(b)(1)(C).46. Id. § 6311(b)(2)(B).47. Id. § 6311(b)(2)(C)(v)(II)(cc).48. Id. § 6311(b)(2)(G)(iii).49. Id. § 6311(b)(2)(I). One such subgroup is “students with disabilities,”and, for purposes of this Comment, subsequent discussion does not pertain toany other subgroup including “economically disadvantaged students,” “studentsfrom major racial and ethnic groups,” or “students with limited Englishproficiency.” Id. § 6311(b)(2)(C). Further, even if the student with disabilitiessubgroup does not meet the state determined percentage, the school may stillmeet adequate yearly progress so long as the percentage has not dropped bymore than ten percent and the subgroup has made progress on at least oneother indicator. Id. § 6311(b)(2)(I)(ii).50. Id. § 6311(b)(3)(C)(v)(I).51. See id. § 6311(b)(3)(C)(ix)(I)-(II).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 257strating how it will implement services under the Act for studentswith disabilities. 52Students with disabilities are specifically addressed in theNCLB. 53 Certainly Congress would not exclude students with disabilitiesfrom such an important educational initiative; however,there is evidence that Congress passed the Act with strong reservationsconcerning this class of students. 54 Thus, Congress did notpass the NCLB without first studying the likely effects on studentswith disabilities. Insight notwithstanding, the NCLB as itcurrently exists presents an inherent conflict with regards to thispopulation. Such conflict can only hinder educational developmentguided by the IDEA, as the next section illustrates.C. The Facial Conflict Between the NCLB and the IDEANotwithstanding any potential standardized testing validityproblems, the NCLB testing mandate may violate student rightsestablished by the IDEA. First, under the IDEA, students are requiredto participate in state or district-wide testing; however,there is no minimum participation percentage. 55 There are a varietyof explanations for such an omission. Primarily, the crux of theIDEA hinges on the individually tailored education plan craftedaccording to the student’s uniqueness, without regard to mandatory,arbitrary floors determined by people who have minimal, orno interaction with the student. Arguably, alternate assessmentshould make up for this gap as they are included in both the IDEAand the NCLB. 56 However, the NCLB includes alternative assessmentsonly for determining the percentage of students tested;there is no provision that mentions alternate assessments as ameans for achieving a reliable and appropriate measure of proficiency.57Second, under the IDEA, the IEP team, not the local educa-52. Id. § 6312(b)(1)(E).53. See id. § 6311 (b)(2)(C)(v)(II)(cc).54. 147 CONG. REC. H10103 (daily ed. Dec. 13, 2001) (statement of Rep.Miller). Even though the Act was passed with overwhelming bipartisan support,there still existed serious disagreement over how it would affect specialeducation. Id.55. See IDEA, 20 U.S.C. § 1412 (West 2000).56. See id. § 1412(a)(17); 20 U.S.C.A. § 6311(b)(2)(I)(i).57. See generally 20 U.S.C.A. § 6311.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM258 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249tion agency, determines how the student will be assessed, if at all,depending on the student’s disability and need. 58 The NCLB takesthe contrasting position that all students are to participate, regardlessof disability or need. 59 This problematic approach ignoresthe IEP’s primary concern: the student’s individual needs. TheNCLB requires that students test in particular grades. 60 However,under the IDEA, students need not reside in a traditional grade,as an education tailored to a particular student does not demandsuch a distinction. Assignment to a particular grade for the solepurpose of testing again would disregard the IDEA’s ultimate goalof particularized treatment of students with disabilities.Therefore, it is unequivocal that the NCLB and the IDEAposit two different conceptions of education. The IDEA vision focuseson individual needs whereas the NCLB view concentrates onstandards employed merely to characterize the pervasive slumpthat exists in public school education. However, since the IDEAencompasses students’ testing participation rights, failure to complyis actionable notwithstanding the NCLB’s enactment.III. THE NCLB PROMPTS GRAVE CONCERN AT THE STATE LEVELData compiled by the Nation’s Report Card shows how theNCLB has influenced testing patterns for students with disabilitiesdespite rights established in the IDEA. For example, in RhodeIsland in 1998, four years before Congress enacted the NCLB,thirteen percent of all eighth grade students were identified ashaving some sort of reading disability. 61 Of this thirteen percent,five percent were excluded from testing, and only one percent weretested with accommodations. 62 Subsequently, in 2002, after theNCLB’s passage, sixteen percent of students were identified asdisabled, only four percent were excluded from testing and sevenpercent were tested with accommodations. 63 The data evinces a58. 20 U.S.C. § 1414(d)(1)(A).59. See 20 U.S.C.A. § 6311(b)(3)(C).60. Id. § 6311(b)(3)(C)(v)(I).61. National Center for Education Statistics, The Nation’s Report Card,at http://nces.ed.gov/nationsreportcard/reading/results2003/acc-sd-g8.asp(last visited Sept. 13, 2004).62. Id.63. Id. Similarly, in Massachusetts in 1998, fifteen percent were identified,three were excluded and five were tested without accommodations. In2002, seventeen percent were identified, four were excluded and eight were

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 259state trend toward identifying more students with disabilities.Yet, despite an increase in identification, fewer students havebeen excluded from testing; instead, more students are tested withaccommodations. It is possible schools may be over-identifyingstudents with disabilities to get low-performing students accommodations,hoping that accommodations will yield more favorabletest results. Regardless, the trend, at least in Rhode Island, indicatesa move toward assessing a greater number of students.Although on its face this is not problematic, such a puissantdrift becomes suspect given the strict guidelines imposed by theIDEA. The drift poses the question whether administratorsstrictly adhere to individual IEPs or if administrators disregardIEPs to an extent, and thus violate the IDEA, in order to meetNCLB mandates. As the IDEA grants students with disabilitiestheir only legitimate educational rights, discounting the IDEA toadhere to a quota system does a disservice to the student and exposesthe school district to potential liability. Thus, it becomesnecessary to diligently diagram testing trends and the resultingimpact on students with disabilities.The NCLB’s influence on testing trends in Rhode Island isevident in the recent standardized testing patterns made availableby the Rhode Island Department of Education. This assessmenttrend commenced throughout the country during the 1990s andstill remains a powerful force. 64 Currently in Rhode Island, allstudents are to participate in state-wide assessments with orwithout accommodations or using an alternate assessment. Accommodationsinclude changes in test setting, timing, scheduling,presentation, or manner of response. 65 Students must meet specificthresholds in eight categories to qualify for alternate assessments.66 The categories pertain to the existence of an IEP,cognitive and functioning behavior, intensive support, cause oftested with accommodations. Id.64. Mark Pomplun, Cooperative Groups: Alternative Assessment for Studentswith Disabilities?, 30 J. SPEC. EDUC. 1, 1 (1996).65. An alternate assessment is any evaluation method utilized to measureprogress that differs from the district norm. Rhode Island Department ofElementary and Secondary Education, at http://www.ridoe.net/standards/stateassessment/Accomodations.htm (last visited Sept.13, 2004).66. Rhode Island Department of Elementary and Secondary EducationWeb site, at http://www.ridoe.net/standards/stateassessment/alternateassessment.htm (last visited Sept.13, 2004).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM260 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249educational performance, age-appropriate levels, ability to applyskills, IEP team compliance, and documentation. 67 If the studentdoes not meet the required thresholds, the student must participatein assessments with or without accommodations. 68 This standardconflicts with the IDEA, where students may be excludedfrom state-wide tests under appropriate circumstances. 69 Moreover,pursuant to the NCLB, schools are required to test ninetyfivepercent of students in reading and math. 70 Again, this mandateis inconsistent with the IDEA, which establishes no arbitraryfloor for participants, given its commitment to student individuality.71In addition to these testing alterations, Rhode Island has implementedtwenty-one performance indicators to measure individualschool progress. 72 A school must meet target levels on alltwenty-one indicators in order to achieve “adequate yearly progress.”73 Indicators include target passing rate percentages on as-67. Id.68. Id.69. IDEA, 20 U.S.C. § 1414 (West 2000).70. Linda Borg & Bruce Landis, How Schools are Evaluated, PROVIDENCEJ. BULL., Aug. 15, 2003, at B3.71. In Massachusetts, all public education students are required to participatein the Massachusetts Comprehensive Assessment System (MCAS)either in its standard form, with accommodations, or through the use of analternate assessment. Mass. Department of Education, Mass. ComprehensiveAssessment System, at http://www.doe.mass.edu/mcas/alt/overview.html (lastvisited Sept. 14, 2004). Only a small number of students, those with the mostsignificant disabilities, will be permitted to use alternate assessments. Id.Furthermore, the IEP team will decide “how, not whether, the student willparticipate in the MCAS . . . .” Id. An alternate assessment consists of a portfoliocontaining academic materials collected throughout the year by both theteacher and the student. Id.Thus, similar to the Rhode Island mandates, Massachusetts placesdemands on schools and students incompatible with the IDEA. Under theIDEA, the IEP team determines whether the student will participate and,based on the team’s discretion, the manner in which an alternate assessmentwill be conducted. 20 U.S.C. § 1414(d)(1)(A)(v). Therefore, the NCLB has improperlyinfluenced both Massachusetts and Rhode Island into altering testingschemes to potentially result in the IDEA infringement.72. See R.I. DEP’T OF ELEMENTARY AND SECONDARY EDUC., SCH. AND DIST.PERFORMANCE AND ACCOUNTABILITY SYS., 4 (Sept. 2003), available athttp://131.109.26.242/reportcard/03/AccountabilityBrochure.pdf (Sept. 18,2003) [hereinafter PERFORMANCE AND ACCOUNTABILITY SYS.].73. Id.; see also NCLB, 20 U.S.C. § 6311(b)(2)(C) (West 2003) (defining“adequate yearly progress”).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 261sessments for specific student groups, one of which includes studentswith disabilities. 74 Failure to meet any indicator can resultin potential school reconfiguration, school choice for children orrequiring the school to provide a plethora of additional services. 75Many Rhode Island schools are not achieving “adequate yearlyprogress” because the disabled subgroup falls short of the targetrate, causing administrative disruption and the loss of essentialstudent services. 76 Some students with disabilities were previouslyexcluded or offered alternate assessments because state or districttests were not appropriate. Now, participation may not only impingerights but also facilitate the loss of needed services or causethe reconfiguration of an exemplary school.Given the heightened sensitivity to procedural and substantiveviolations of the IDEA, the testing provision changes in RhodeIsland will likely lead to litigation. 77 Rhode Island is currently enactingprocedures that would require substantial IEP rearrangement.78 In addition to the potential procedural changes, studentswith disabilities may now be deprived of preexisting pedagogicalpractices proven to be successful in order to make room for thestandardized testing procedures and preparations necessary underthe NCLB. It is possible students could bring a cause of actionunder IDEA section 1415 citing procedural violations due to theIEP changes. 79 In addition, students could bring claims for substantiveviolations, claiming that the new testing provisions provideno academic benefits to their education plans. Further casestudy is required to flesh out the elements of both the proceduraland substantive violation of the IDEA.IV . SUBSTANTIVE AND PROCEDURAL VIOLATIONS OF THE IDEAIn 1982, the United States Supreme Court announced theeducational standard schools must provide students with disabilitiesin Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.74. See PERFORMANCE AND ACCOUNTABILITY SYS., supra note 72.75. See id.; see also id. at 6; NCLB, 20 U.S.C.A. § 6316(b)(8).76. See, e.g., David McFadden, Eight Students Seek Transfer from FailingCity Schools, PROVIDENCE. J., Aug, 29, 2003, at C1.77. See CHINN & GOLLNICK, supra note 32.78. See McFadden, supra note 76.79. See 20 U.S.C. § 1415 (West 2000).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM262 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249Rowley. 80 The Court interpreted the “free appropriate public education”requirement of the IDEA’s predecessor statute, the Educationfor All Handicapped Children Act, to ascertain the requisitedegree of education afforded to students with disabilities. 81 AState complies with the Act’s requirements, the Court held, whenit follows the procedures set forth in the Act and if the IEP is “reasonablycalculated to enable the child to receive educational benefits”conferring a “minimum floor of opportunity.” 82Noting the distinction between students with disabilities andregular students, the Court proclaimed:The educational opportunities provided by our publicschool system undoubtedly differ from student to student,depending upon a myriad of factors that might affect aparticular student’s ability to assimilate information presentedin the classroom. The requirement that Statesprovide “equal” educational opportunities would thusseem to present an entirely unworkable standard requiringimpossible measurements and comparisons. 83Thus, the Court determined that states need to provide a minimumfloor of opportunity, and highlighted the distinctive andunique characteristics of education plans for students with disabilities.84 The IDEA expanded on the individual’s unique learningcharacteristics highlighting educational benefits for students andoffered comprehensive opportunities. 85The IDEA focuses on individual uniqueness while the NCLBevaluates educational programs. The IDEA maintains that theIEP shapes the student’s education where the NCLB, with its testingmandate, disregards any individual determination under theauspices of school program evaluation. 86 Following the Rowley80. 458 U.S. 176, 203-04, 206-07 (1982).81. Id. at 203-04. The Court’s interpretation is still currently applied inevaluating whether a substantive or procedural IDEA violation has occurred.The Court determined that the school did not need to provide a deaf studentwith a sign language interpreter as the student was advancing from grade tograde with ease. Id.82. Id. at 206-07. Here, the Court determined that the school met thestandard. Id. at 209.83. Id. at 198.84. See id. at 201, 206-207.85. See generally IDEA, 20 U.S.C. § 1415 (2000).86. See James G. Shriner, Legal Perspectives on School Outcomes As-

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 263Court’s rationale and the IDEA’s evolution, standardized testingmay be inappropriate and/or invalid for some students. 87 To furnishany educational benefit, determining whether, and if so, howa student shall be tested, should be done on an individualized basis.A minimum participation percentage requirement may lead toa substantive or procedural IDEA violation. Focus should centerback on individual needs, perhaps through wide-scale alternateassessment use, rather than large-scale testing. 88 If large-scaletesting remains the norm, rights may vanish, claims may rise, andstudents with disabilities might be “left behind.” Therefore, carefulreview of the factors courts consider in determining IDEA violationsis necessary to demonstrate how mandatory testinginfringes upon educational rights.A. Substantive IDEA Violations and Potential NCLBInfringementsMandatory testing invites potential substantive violations ofthe IDEA because a student may not acquire any meaningfulbenefit from the standardized test and it may replace preexistingprocedures that did offer such a benefit. One type of IDEA violationstems from insufficiencies in the student’s IEP. Courts, followingthe Rowley standard, determine whether students canderive meaningful educational benefit from their IEPs. If a studentcannot derive a meaningful educational benefit from the IEP,a substantive IDEA violation arises. 89 Inversely, if a provisionnecessary for a student to receive an educational benefit is omittedfrom an IEP, the omission may also lead to a substantiveIDEA violation. 90 To illustrate, the United States Court of Appealsfor the Ninth Circuit found that denying a student with a behavioraland emotional disorder placement at a residential treatmentfacility amounted to a substantive IDEA violation because the studentcould not derive a meaningful educational benefit withoutsessment for Students with Disabilities, 33 J. SPEC. EDUC. 232, 232-33 (2000).87. See generally id.88. See infra notes 97-98 and accompanying text.89. See, e.g., Seattle Sch. Dist. v. B.S., 82 F.3d 1493, 1498-1500 (9th Cir.1996).90. See, e.g., E.D. v. Enterprise City Bd. of Educ., 273 F. Supp. 2d 1252,1272 (M.D. Ala. 2003).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM264 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249such placement. 91 The court reasoned that “unique educationalneeds” are not limited to the academic. 92 Similarly, in E.D. v. EnterpriseCity Bd. of Educ., 93 a United States District Court for theMiddle District of Alabama held that a school district’s IEPamounted to a substantive IDEA violation because it did not providestrategies for the student to return to school on a full-timebasis. 94In addition to actual IEP content, courts also find substantiveIDEA violations based on student performance. For instance, if adeaf and blind student with the capacity to learn self-help skills isnot making progress towards academic goals, a substantive violationoccurs if the IEP does not provide a program specifically designedfor those self-help skills. 95 Further, courts consider eachstudent’s individual potential because students have differentabilities and capabilities. 96Given the foregoing review, it is possible the NCLB provisionsfall within the substantive violation context. First, a determinationmust be made whether participation in a state or districtwidetest confers an educational benefit to the student. Becausetesting is addressed in the IDEA, Congress likely recognized thebenefit of participation. 97 However, because a student may potentiallybe excluded from testing under the IDEA, it is equally likelyCongress anticipated situations in which assessments would provideno meaningful educational benefit. 98 Though NCLB proponentsclaim that participation enhances accountability and raisesexpectations for students with disabilities, 99 deference is due tothe original IEP, as it is drafted soley to benefit the individual.91. Seattle Sch. Dist., 82 F.3d at 1500, 1502.92. Id. at 1500 (quoting H.R. REP. NO. 98-410, at 19 (1983), reprinted in1983 U.S.C.C.A.N. 2088, 2106) (construing “unique educational needs” to includethe student’s academic, social, health, emotional, communicative,physical and vocational needs).93. 273 F. Supp. 2d 1252 (M.D. Ala. 2003).94. Id. at 1272.95. See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1476 (9th Cir.1993).96. See Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (2d Cir. 1999).97. See IDEA, 20 U.S.C. §1414(d)(1)(A) (2000).98. See id.99. See Judy L. Elliot et al., State-Level Accountability for the Performanceof Students with Disabilities: Five Years of Change?, 39 J. SPEC. EDUC.39, 39-40 (2000).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 265Also, because the IDEA enables the IEP team to determine howand if a student should be assessed, denying an alternate assessmentdeprives a student of a meaningful educational benefit. 100The NCLB has induced states to adopt categorical, rather thanindividual, approaches to determine whether a student can participatethrough alternate assessments. 101 The IDEA’s languageand subsequent case law, however, suggest that alternate assessmentslikely provide a greater benefit than standardized testing.102 Therefore, these categorical approaches could deny benefitspromised to students by both the IDEA and the Supreme Court. 103B. Procedural IDEA Violations and Another Analogy to NCLBMandatesThe NCLB’s mandatory testing scheme may also amount to aprocedural violation of the IDEA as it could prompt harmful IEPomissions. Procedural violations however are not absolute; that is,if a school does not comply with the procedures set forth in theIDEA, noncompliance does not automatically result in a proceduralviolation of the student’s rights. Courts consider loss of educationalopportunity, the nature of noncompliance, and theconsequence to a student in determining whether procedural noncomplianceamounts to a violation.In Cleveland Heights-Univ. City Sch. Dist. v. Boss, 104theUnited States Court of Appeals for the Sixth Circuit found a proceduralviolation of the IDEA because a student’s IEP did not includeobjective criteria for measuring progress. 105 The courtreasoned that such a substantial omission, one more than a meretechnical violation, went to the crux of the IEP. 106 Similarly, theUnited States Court of Appeals for the Fourth Circuit determinedthat once a school district obtained information concerning atransfer student’s IEP, it became obliged to inform parents of100. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,458 U.S. 176, 192, 200-01 (1982) (defining meaningful education).101. See generally Pomplun, supra note 64.102. See Experts: Multiple Methods of Alternate Testing Best, SPECIALEDUC. REPORT, Nov. 2003 at 7.103. See Rowley, 458 U.S. at 206-07; IDEA, 20 U.S.C. § 1414(d)(1) (2000).104. 144 F.3d 391 (6th Cir. 1998).105. Id. at 398-99.106. Id. at 399.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM266 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249right under the IDEA. 107 The court deduced that once a student isevaluated pursuant to federal IDEA guidelines, the student is entitledto the procedural benefit from school to school. 108 Thus, to anextent, courts hold schools accountable for existing IEPs.The NCLB’s implementation may disrupt existing IEPs or, alternatively,IEPs may fail to address the federally-mandated testingguidelines altogether. A blatant procedural violation wouldoccur if an IEP omits a comprehensive NCLB description and howthe new guideline affects the student, if at all. For example, assumethat a student was exempt from testing prior to the NCLB.Under new Rhode Island guidelines, the student must participatein testing. 109 The student’s IEP must address this change in ampledetail, and the school responsible for implementing the changemust provide notice to the parents. 110 As evidenced by Salley, theIEP is of grave importance to the student, and failure to complywith the IDEA procedures for executing it could negatively impactthe student. 111 If a change in testing procedure is not reflected in astudent’s IEP, the student’s teachers may not cater instruction accordingly,leaving the student without the ability to show progressleading to an unequivocal IDEA violation.C. Distinguishing the Appropriate IEPs: The Imminent Jeopardythe NCLB Poses to the Efficacious IEPTo better understand what may constitute an IDEA violationin light of the NCLB’s mandatory testing regime, it is helpful tosurvey what actions various courts have found acceptable underthe IDEA. Courts have confirmed that the following alleged violationsof the IDEA did not result in the deprivation or loss of educationalopportunity: failure to classify and serve a student with aform of autism when the student did not demonstrate a need forthe services; 112 IEP offering reverse mainstreaming, or a restric-107. Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 464-65 (5th Cir.1995).108. Id. at 465.109. See R.I. Department of Elementary and Secondary Education athttp://www.ridoe.net/standards/stateassessment/Accomodations.htm (last visitedSept. 1, 2004).110. See IDEA, 20 U.S.C. § 1415 (2000).111. See Salley, 57 F.3d at 465.112. Eric H. v. Judson Indep. Sch. Dist., No. Civ.A. SA01CA0804-NN,2002 WL 31396140, at *1, *11 (W.D. Tex. 2002).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 267tive environment, with individual speech, occupational, and physicaltherapy; 113 a public school implementing its own IEP over anIEP drafted at a private school in another district; 114 and lack of afull-time aide for a student with autism in the absence of educationalopportunity loss. 115 In each circumstance, the respectivecourt found that the student’s IEP was appropriate as it did notdeprive the student of any benefit nor did it result in the loss of aneducational opportunity. 116In contrast, if a student’s IEP is changed pursuant to theNCLB, the student could be deprived of a condition previouslygranting an educational benefit, thus stripping a potential educationalopportunity. If a student has an existing IEP, the studentalready has a demonstrable need for services. Unlike cases wherestudents were seeking to extend their IEPs, an NCLB-inducedcause of action under the IDEA will likely be seeking to upholdthe current IEP. As discussed earlier, the NCLB has the capacityto deprive the student of assessment procedures, a meaningfuleducational benefit. Further, altering the testing procedures couldamount to the loss of a previously honored educational opportunity.Pre-NCLB, IEP testing guidelines were drafted in a student’sbest interests, intended to address that particular student’s educationalneeds. The student may have participated in testingthrough an alternate assessment, or the student may have beenexcluded from testing because the student did not obtain anybenefit from participation. Possibly, the IEP team determined thatthe student’s needs were best addressed by focusing on self-helpskills, for example. If the NCLB allowed for increased use of alternateassessments, which it currently curtails, it could be reconciledwith the IDEA.Currently, the NCLB does not allow for such a practice.NCLB alterations are distinguishable from the innocuous situationswhere courts found the IEPs appropriate. The NCLB has thecapacity to alter the IEP to the point where the child is deprived of113. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 661 (8th Cir.1999).114. Michael C. v. Radnor Township Sch. Dist., 202 F.3d 642, 651 (3d Cir.2000).115. Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 807, 810 (5th Cir.2003).116. See supra notes 112-11 and accompanying text.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM268 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249a benefit (alternate assessment or exclusion), spawning an IDEAprocedural violation.Notwithstanding this analysis, the NCLB can, if amended, beimplemented without violating the IDEA by affording the currentIEP deference regarding testing determinations. If an IEP is properlydrafted, it will state what assessment methods will best servethe student and why. 117 The NCLB manifests crucial shortcomingsas decisions are rendered categorically for all students without theinput of the IEP team or without taking into consideration a student’sindividual characteristics. 118 When a standardized test isdrafted with universal application in mind, it is difficult to arguethat the test provides an educational benefit to the individuallearner. NCLB proponents would likely argue that the assessmentsmeasure the quality of education, not the individual benefitderived. However, it would be difficult to measure the quality of aunique learner’s education if the particular assessment methodwas not a valid or appropriate measure of his or her learning.Therefore, in addition to preserving student rights, an NCLBamendment requiring deference to the IEP team’s determinationsand allowing assessment alternatives for students with disabilitieswill likely save testing validity as a unique learner can onlydemonstrate progress on an appropriate and valid assessment.D. Adequate Student Progress: Outside the NCLB’s AssessmentCapabilitiesSchools often overlook appropriate measures omitted from astudent’s IEP if the student demonstrates educational progress. 119Courts rely on the hearing officer’s finding of adequate studentprogress to uphold an IEP. 120 As such, courts have acknowledgedthat the following circumstances did not result in the deprivationor loss of educational opportunity because the student adequatelyprogressed: denying one-on-one reading instruction where the studentwas receiving adequate grades in regular education117. See IDEA, 20 U.S.C. § 1414(d)(1)(A) (West 2000).118. Borg & Landis, supra note 70, at B3.119. See, e.g., Eric H. v. Judson Indep. Sch. Dist., No. Civ.A. SA01CA0804-NN, 2002 WL 31396140, at *1, *11 (W.D. Tex. 2002).120. See, e.g., Rowley, 458 U.S. at 210-11 (1982) (Blackmun, J., concurring).

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 269classes; 121 denying increased reading instruction and therapy for astudent with written and language deficiencies when the studentshowed significant progress in reading and oral expression; 122 denyingincreased resource time for a student with Tourette’s Syndrome,Attention Deficit Disorder, and Obsessive-CompulsiveDisorder, despite passing grades, academic progression, and appropriateaccommodations and attention when necessary; 123 a studentwith Behavior/Emotional Disorder challenged the school’sIEP but experienced overall behavior and academic improvement;124 refusal to place a student with Tourette’s Syndrome andAttention Deficit-Hyperactivity Disorder in a 24-hour facility insteadof an adaptive behavior classroom where the student receivedpassing grades and could walk the halls unaccompanied byan adult; 125 and a student with processing and attention difficultieschallenged the reduction in services despite year-to-yeargrade progression and consistent increases on standardizedtests. 126This preceding line of cases shows that positive student progressweighs heavily in favor of IEP appropriateness. A fortiori, alow-achieving student has a better chance of obtaining success inan IDEA claim. It would be difficult for a successful student withdisabilities to challenge NCLB testing provisions regardless ofwhether the test provided a meaningful educational benefit. Inother words, a hearing officer would be more likely to examine theIEP of a low-achieving student with disabilities. 127 Thus, a studentbringing a claim after the NCLB’s implementation will likely be121. Troy Sch. Dist. v. Boutsikaris, 250 F. Supp. 2d 720, 737 (E.D. Mich.2003). This is determined by the school district hearing officer and confirmedby the respective court. Id. at 727-728.122. Coale v. State Dep’t of Educ., 162 F. Supp. 2d 316, 319, 328, 331 (D.Del. 2001).123. Carl D. v. Special Sch. Dist., 21 F. Supp. 2d 1042, 1056 (E.D. Mo.1998).124. Bd. of Educ. of Avon Lake City Sch. Dist. v. Patrick M., 9 F. Supp. 2d811, 825 (N.D. Ohio 1998).125. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 253-54 (5th Cir. 1997).126. Bd. of Educ. of Downers Grove Grade Sch. Dist. No. 58 v. Steven L.,898 F. Supp. 2d 1252, 1262 (N.D. Ill. 1995).127. This attenuated logic, however, will do a disservice to the studentwhile belittling IDEA for the IEP should govern regardless of past performance.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM270 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249seeking to uphold, not extend, the current IEP. A rational approachwould involve precisely what the IDEA has already setforth: analyzing the unique needs of the individual student. TheNCLB’s mandatory testing initiatives can survive as long as astudent’s unique needs remain paramount. Unfortunately, policyfrequently overrides IEP procedure and students with disabilitiesare often left behind.E. IDEA and Testing: The Graduation Exit Exam DilemmaMandatory testing encroaches upon students’ rights because,in many cases, the IEP already accounts for testing substance andprocedure. Currently, testing participation for students with disabilitiesis at the forefront of educational debate. Should testingparticipation be based on the student’s individual needs or shoulda student’s needs cede to state policies? 128 Is it possible to designstate policy consistent with the individual needs of a particularstudent? If the IDEA determines how a student is to be educatedit follows that it should also determine how a student is tested. 129Increased alternate assessment use may quell the conflict betweenthe IDEA and the NCLB, as alternate assessments are frequentlyposed as solutions to testing validity problems. School districts frequentlyavoid alternate assessment use, however.Some students have already pursued claims against localschool boards on the theory that graduation exit exams violateIDEA testing safeguards. In Chapman v. Cal. Dep’t. of Educ., 130 agroup of students with disabilities challenged the California HighSchool Exit Exam requirement on grounds that mandatory participationviolated the IDEA. 131 The students asserted that thetest was invalid because they were denied use of accommodationsor alternate assessments, a blatant contradiction of their IEPs. 132The students argued that accommodations and alternate assessmentswere essential to meaningful inclusion in the state-wide128. See Martha Thurlow, et al., Students with Disabilities in Large-ScaleAssessments: State Participation and Accommodation Policies, 34 J. SPEC.EDUC. 152, 162 (2000).129. See Experts: Multiple Methods of Alternate Testing Best, SPECIALEDUC. REPORT, Nov. 2003, at 7.130. 229 F. Supp. 2d 981 (N.D. Cal. 2002).131. Id. at 983-84.132. Id. at 984.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 271test. 133 The court agreed, deciding that a state cannot deny studentswith disabilities meaningful participation in the state testswhen meaningful participation is available for other students. 134The court reasoned that the IEP shall dictate how a student is assessed,which could include accommodations, alternate assessments,or exclusion altogether, as it establishes testing proceduresdesigned to validly assess student capabilities. 135 Although Chapmanwas reversed by the United States Court of Appeals for theNinth Circuit on the conjecture that the IDEA does not encompassgraduation requirements, its reasoning regarding testing requirementsprovides helpful insight in evaluating the rationale forstandardized testing provisions as they affect students with disabilities.136Other courts have handled the same issue but have appliedan analysis that tapers on the edge of a plenary IDEA violation.For example, in Rene v. Reed, 137 the Court of Appeals of Indianarefused to acknowledge the validity of particular students’claims. 138 The students challenged the state graduation exam requirementthat they had previously been exempted from pursuantto their IEPs. 139 The students were now required to take the examswith accommodations or adaptations. 140 The court determinedthat the graduation exam did not violate the IDEA because the“IDEA does not require any specific results.” 141 Further, the courtheld, the state does not have to honor accommodations containedin individualized plans because this would affect the testing validity.142 Here, the court disregarded both the IDEA’s right-granting133. Id. at 986.134. Id. at 987.135. Id. at 987-88. The court also relied on a memorandum from the U.S.Department of Education, Office of Special Education and Rehabilitative Servicesto State Directors of Special Education (January 17, 2001), available athttp://www.dssc.org/frc/fed/OSEP01-06.FFAssessment.pdf.136. See Smiley v. Cal. Dep’t of Educ., Nos. 02-15552, 0215553, 2002 WL31856343, at *1 (9th Cir. 2002) (reversing Chapman in part on grounds thatIDEA does not encompass restrictions on a state to set diploma requirements).137. 751 N.E.2d 736 (Ind. Ct. App. 2001).138. See id. at 745-47.139. Id. at 739.140. Id.141. Id. at 745.142. See id. at 746.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM272 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249authority and the IEP purposes and qualified its rationale as limitedto graduation requirements.Though the IDEA may not regulate graduation requirements,it does regulate testing procedures for students with disabilities.Testing accommodations are implemented to assist the student inaccessing a meaningful proficiency assessment without renderingthe assessment invalid. 143 Contrary to the Rene rationale, accommodationslikely save testing validity. Therefore, in addition to thecurrent legislature, courts also fail to notice the purpose of accommodations,alternate assessments, or exemption from tests.Notwithstanding the Rene court’s ambiguous conclusions,these cases show that courts are looking to testing purposes in determininghow or whether students with disabilities are to participate.Under the NCLB, students participate to measure thequality of education received. 144 For students with disabilities,however, quality of education is not limited to the academic. Further,a test cannot measure quality of education if it does not comportwith teaching pedagogy. In a recent survey, a majority ofeducators asserted that the NCLB makes no sense for studentswith disabilities as educational progress is unlikely apparent on astandardized test. 145 Moreover, many educators purport that thelaw currently inhibits alternate assessment implementation. 146 Inthe preceding cases, one state could require standardized testingonly because it dealt with graduation requirements. 147 The NCLB,however, mandates testing at various points in a student’s education.Most of these assessments do not deal with graduation, yetthey are still mainstream components, or components of the regularschool environment. 148 The mainstream environment, however,is not always the appropriate venue for educating students withdisabilities. Presently, without the graduation requirement pretext,schools and courts cannot circumvent rights and subject allstudents to the mainstream environment without inviting an143. Memorandum from the U.S. Department of Education, Office of SpecialEducation Programs, to State Directors of Special Education (January17, 2001), available at http://www.ed.gov/policy/speced/guid/idea/omip.html.144. See NCLB, 20.U.S.C. § 6301(1) (West 2002).145. States Seek to Revise Special Education Testing, SPECIAL EDUC. RE-PORT, Nov. 2003.146. Id. at 5.147. 20 U.S.C.A. § 6311(b)(3)(C)(ix).148. See Wolery & Wilbers, supra note 13.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 273IDEA violation.V. THE RONCKER STANDARD FOR EDUCATIONAL PLACEMENT: ANANALOGY BETWEEN MAINSTREAM INAPPROPRIATENESS AND THEMAINSTREAM ASSESSMENTNot all students’ particular needs can be addressed in themainstream environment as the mainstream environment targetsregular, not exceptional needs. The mainstream environment undoubtedlyincludes state or district-wide testing. 149 Thus, if themainstream environment is not appropriate for particular studentsthen there is reason to believe standardized testing isequally inappropriate, 150 given that the two are not mutually exclusive.The United States Court of Appeals for the Sixth Circuit,in Roncker v. Walter, pronounced factors, still applied by federalcourts today, for determining the appropriateness of studentplacement. 151 The determination is for placement of students alreadyidentified with a disability; thus, this analysis concerns theappropriate educational setting, not the educational standardpronounced in Rowley. 152 The Sixth Circuit, in supporting individual,not categorical determinations, applied the following factorsdetermining appropriate placement:1. Whether services that make placement superior could befeasibly provided in a non-segregated facility.2. Whether the benefits of mainstreaming outweighed thebenefits provided by a segregated environment.3. The disruptive force of the student in the non-segregatedenvironment.4. The cost of placing the student in the segregated environment.153Based on this standard, courts frequently conclude that the149. “Mainstream” refers to the regular education classroom and environment.The segregated environment is the opposite of the mainstream environment.It usually refers to a self-contained classroom. See WOOD, supranote 8, at 98-100; THOMAS L. GOOD & JERE E. BROPHY, LOOKING INCLASSROOMS 262 (7th ed. 1997) (indicating that mainstream students participateas “fully” and “equally” in classroom activities as possible).150. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983)151. Id. at 1062-63 (holding that placements should be individually madeand not automatically determined based on classification).152. Rowley, 458 U.S. at 202-04, 205-07.153. Roncker, 700 F.2d at 1063.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM274 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249student should not be educated in the regular classroom. For instance,in Hudson v. Bloomfield Hills Pub. Sch., 154 the court, inrelegating a student classified as Trainable Mentally Impaired(TMI) to the segregated classroom, held that a student should beeducated in the regular environment but here the child’s needs requiredplacement elsewhere. 155 Other courts have deemed themainstream inappropriate, reasoning that technical learningshould not be emphasized over life skills and that interaction withnon-handicapped peers would be limited to mere observation. 156 Inthese situations, the factors typically weigh in favor of educatingthe child in the segregated environment. 157Although a testing determination is not as extreme as a segregatedlearning environment, similar factors could be used to circumscribewhether a student with disabilities should participatein state or district-wide testing when the student previously participatedin an alternate assessment or was excluded. 158 Regulartesting is presumptively inappropriate if a student was previouslyexcluded or the student participated through alternate assessments.Therefore, factors in determining participation must weighheavily in favor of testing in order to overcome the preexisting IEPstandards.If the IEP is ignored and the student participates in testingregardless of previous IEP team decisions, the focus will shift fromthe unique needs to standardized testing results. As several courtshave already established, focusing purely on the student’s aca-154. Hudson v. Bloomfield Hills Pub. Sch., 910 F. Supp. 1291 (E.D. Mich.1995).155. Id. at 1304.156. See French v. Omaha Pub. Sch., 766 F. Supp. 765, 787-88, 792 (D.Neb. 1991); A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 161 (8th Cir.1987) (per curiam). But cf. Sacramento City Unified Sch. Dist. v. Rachel H.,14 F.3d 1398, 1401-02, 1404 (9th Cir. 1994) (holding that mainstreaming ispreferred and although in some cases segregation may be necessary, in thesecases the factors weighed in favor of educating the child in the mainstreamenvironment); Doe v. Bd. of Educ. of Tullahoma City Sch., 9 F.3d 455, 459-60(6th Cir. 1993).157. French, 766 F. Supp. at 792-94; A.W., 813 F.2d at 161-63.158. Students segregated from the mainstream are typically categorizedby physical and/or learning disability. See WOOD, supra note 8, at 96. Althoughthis characteristic weighs heavily in determining placement it is notnecessarily dispositive of a testing determination. See id. This supports theassertion that testing determinations should be made on an individual basisonly; that is, for students with disabilities.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 275demic results runs contrary to both the IEP and the IDEA. 159 Althoughassessing the quality of the student’s education is important,this can likely be done without a time consuming andpotentially invalid measure. States, therefore, should establish anew standard that focuses on unique needs and student individualityrather than empirical data and test results.VI. SURPASSING THE ROWLEY STANDARD AND HONORING RONCKER:CURTAILING THE OVER-REACHING AIMS OF THE NCLBThe political and statutory emphasis on test results, whileavowed as beneficial educational renovation by legislators andadministrators, abandons certain students with disabilities. In thewake of the NCLB, schools disregard mandatory IEPs and integratestudents in an inappropriate environment in order to complywith school accountability guidelines. However, the IDEA continuesto require strict IEP adherence in a setting conducive to individualneeds. Therefore, new trends employed by school districtsattempting to conform to the NCLB are hostile to individualneeds, implicating potential IDEA violations pertaining to boththe substance and setting of the student’s education. 160 Pedagogicalpredicaments can be avoided if states apply a new standard foreducating students with disabilities. A new standard that focusessolely on student needs and is insulated from external policy pressurewill ensure maximum student development. School districtshave already implemented standards that demonstrate the feasibilityof replacing the Rowley guidelines. 161The United States Court of Appeals for the First Circuit, inTown of Burlington v. Dep’t of Educ. for the Commonwealth ofMass., 162 held that states are free to expand on the Court’s interpretationof the Education for All Handicapped Children Act. 163159. See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir.1990); Roncker, 700 F.2d at 1064; Bd. of Educ. of Tullahoma City Sch., 9 F.3dat 459; French, 766 F. Supp at 799.160. See generally Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.Rowley, 458 U.S. 176, 209-10 (1982) (holding that it was unnecessary for theschool district to provide the student with a sign-language interpreter wherethe student was progressing adequately without an interpreter).161. See Roncker, 700 F.2d at 1064.162. Town of Burlington v. Dep’t of Educ. for the Commonwealth of Mass.,736 F.2d 773 (1st Cir. 1984).163. Id. at 784-85 (interpreting treatment of IDEA’s predecessor statute,

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM276 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249Subsequent decisions reiterate this holding, allowing school districtsto elevate standards for providing educational benefits tostudents with disabilities that focus on the individual’s uniqueneeds. 164 Under this heightened, student-centered standard, astate’s duty to a student with disabilities increases dramatically.The state now has the responsibility of catering to that student’sunique needs regardless of any testing mandate. States implementingthe heightened standard, though, still must balance thiswith the NCLB testing mandate.There is a general inclination, after the NCLB, to test ahigher percentage of students and exclude a lower percentage ofstudents from participation. 165 If states employ a student-centeredstandard, their students would be assured maximum possibledevelopment. For a student with disabilities, attaining maximumpossible development may require testing with significant accommodations,an alternate form of testing, or refraining from testingaltogether. Regardless, maximum possible development can onlybe obtained by focusing on the individual student’s unique needsoutlined in the IEP. The NCLB and its mandatory testing guidelinesmay not necessarily coincide with the student’s unique needsand thus, may hinder the student’s maximum possible development.In addition to testing guidelines, some students are educatedoutside the mainstream environment. The educational benefits ofmainstream exclusion may outweigh instructional time alongsidenon-disabled peers. 166 Therefore, two compelling reasons exist toscrutinize closely testing determinations for students with disabilities:the possibility of violating the IDEA by disregarding IEPtesting provisions, and subjecting the student to an inappropriatemainstream environment detrimental to educational development.If more school districts comport with this heightened individualizedstandard it is likely more students with disabilities willreceive an educational benefit in an appropriate environment conduciveto learning without IEP/IDEA infringement. Therefore, thethe Education for All Handicapped Children Act).164. See David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 423-24 (1stCir. 1985); Roland M., 910 F.2d at 991-92, 1000; Norton Sch. Comm. v. Mass.Dep’t of Educ., 768 F. Supp. 900, 902-04 (D.Mass. 1991).165. See supra note 61.166. Roncker, 700 F.2d at 1063.

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM2004] RESULTS ABOVE RIGHTS? 277NCLB should serve as a guideline without reigning absolute; thestudent’s unique needs, not a statute, must determine how, if atall, a student will be tested. Applying this standard could avoidlitigation, and, more importantly, serve students with disabilitiesadequately and appropriately.Salvaging student rights requires an NCLB amendmentgranting unconditional deference to the IDEA and accompanyingIEPs. Under the amended Act, students with disabilities wouldparticipate in district-wide assessments only if the IEP teamdeemed participation appropriate. Further, the IEP team coulddecide that the student cannot meaningfully participate in testingor that meaningful participation requires particular accommodationsor modifications. Determinations are made according to thestudent’s IEP, without mandatory participation percentages. Thispractice would grant school districts the freedom to use alternativeassessments that truly measure student progress while comportingwith both the IDEA and the NCLB.VII. CONCLUSIONStudents with disabilities require an education specificallytailored to individual needs to obtain any benefit from it. TheNCLB, new to the educational arena, may have been drafted withonly the best intentions. Nevertheless, its testing mandate reachestoo far as it is insensitive to IEPs and specific guidelines implementedfor students with disabilities. However, schools lose fundingif they do not follow the NCLB, regardless of the Act’s effect ona particular population. Thus, there is great incentive to complywith the NCLB, even if this results in ignoring the IDEA. Caselaw exhibits how the NCLB testing mandate could amount to bothan IDEA procedural and substantive violation. In addition to potentialviolations, NCLB testing may fall within an inappropriateeducational environment for students with disabilities as thebenefits of regular participation may be outweighed by exclusionor alternative assessments. Reconciliation is possible if states andschool districts adhere to a new standard that emphasizes studentuniqueness and individuality over assessment results. Anamendment to the strict participation requirements of the NCLBis required to allow room for IEP-based, individual participationdeterminations. Pursuant to this lofty ambition, the NCLB couldpeacefully coexist with the IDEA to evaluate the quality of student

PLAIN VOL 10, ISSUE 1 PP 249-2781/6/2005 1:37 PM278 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249education without imposing mandatory participation guidelineshostile to the IEP. If otherwise, students will miss educational opportunitieswhile participating in a testing system in inappropriateenvironments that provide little educational benefit to them.To make meaningful education a reality, legislators must deferto the IDEA and allow the IEP to dictate how a student withdisabilities should be tested, if at all. If this concession is made,the NCLB can remain to evaluate the effectiveness of school programswithout subjecting certain students to a scheme and environmentdetrimental to their individual needs.Matthew R. Plain