Founded in 2021, the Stanford Undergraduate Law Review is a student-run publication at Stanford University with the mission of providing a home for undergraduate scholarship on law with an emphasis on civil liberties. SULR accepts submissions from undergraduate students worldwide. By publishing a diverse array of articles drawing from a variety of academic disciplines, SULR seeks to cultivate the next generation of legal thinkers and heighten awareness of the importance of law as a tool of social progress.
AVI GUPTA HAILEY ROCHIN
ANANYA KARTHIK SERENA ZHOU JOVEN HUNDAL
JADE ARAUJO CONNOR BEGOVICH ISABELLE COLOMA
DANTE DANELIAN SARINA DEB ELIZABETH EVERS
ANDREW GERGES SOFIA GONZALEZ-RODRIGUEZ GABRIELA HOLZER
DIEGO KAGURABADZA MALAINA KAPOOR KELLY KIM
ZIVA BERKOWITZ KIMMEL ARJUN MAHESHWARI ABIGAIL MATSUMOTO
DIVYA MEHRISH LAISHA OZUNA APRIL PACHECO
ALAIN PEREZ SABIAN JESUS POLANCO ASHWIN PRABU
PALOMA RONIS VON HELMS BRANDON RUPP AMY SAYER
NATALIE SHTANGRUD YOO RA SUNG LORA VACHOVSKA
SKYLAR VOLMAN LINDSEY WILLIAMS KATHERINE ZHOU
ALISA ALEKSANIAN MARLI BOSLER ERIK BRADLEY
ISABELLE COLOMA AARON CHO DANTE DANELIAN
JAX FLOYD TEIANA GONSALVES YUQING JIANG
KELLY KIM ARJUN MAHESHWARI APRIL PACHECO
ALAIN PEREZ ASHWIN PRABU HALEY SILVA
DYLAN VERGARA LINDSEY WILLIAMS
ARJUN MAHESHWARI YOO RA SUNG NATALIE SHTANGRUD
ALI ANSARI GABRIELA HOLZER GABRIEL FRANK-MCPHETER
BRANDON RUPP DYLAN VERGARA
It is my honor and pleasure to present the second edition of Stanford Undergraduate Law Review. From constitutional interpretation to intellectual property to environmental law, this edition’s group of student authors cover a wide range of topics befitting SULR’s interdisciplinary character. As in our first edition, these articles highlight the sheer breadth of law’s impact, and the variety of issues that are indelibly intertwined with legal thought. Building from the success of our first edition, we are incredibly excited to share these works with the world.
The last several months have been a time of remarkable growth for SULR. You may notice that our Masthead is more crowded this year – our team of staff and editors has dramatically expanded! We were thrilled to welcome these new team members SULR has also begun branching out from the traditional journal format into shorter form online publications. As ever, the contributions of each and every SULR team member have been essential to the success of this organization and the publication of this edition. They, along with our authors, are the true heroes of this effort. I’d also like to extend particular gratitude to the SULR Executive Team: Hailey Rochin, Serena Zhou, Ananya Karthik, and Joven Hundal. Their leadership and dedication played a big part in making SULR such an inspiring project to work on.
On a personal note, the publication of this edition marks the end of my time as SULR Editor-in-Chief. Taking this project from idea to reality has been a tremendous learning experience, and I’m profoundly grateful for everyone who shared this journey with me. As I transition out of a leadership role, I am excited to pass the reins to Hailey Rochin, who has worked tirelessly since the very beginning to make SULR the best organization it can be. I know that SULR will thrive under her leadership. Over the course of our two editions, SULR articles have represented some of the very finest undergraduate legal scholarship, and it has been my honor to help build a home for them.
Avi Gupta Founding Editor-in-Chief, Stanford Undergraduate Law Review
I am honored to present the second edition of the Stanford Undergraduate Law Review. We have curated here a collection of articles that offer critical insights and thoughtful reflection on some of the most pressing legal issues of our time. Pursuant to our commitment to diversity in legal scholarship, this edition features articles written by scholars from a variety of backgrounds and perspectives
Our authors delve into a breadth of pressing topics related to civil rights and civil liberties, including the impact of recent Supreme Court decisions on climate policy, the evolving landscape of copyright law in the digital age, and the challenge of recidivism in our criminal justice system. Through their scholarship, our authors help us to understand the complexity of these issues.
I would like to take this opportunity to express my gratitude to the executive board, editors, and authors for their hard work in bringing this issue to fruition. Their contributions have helped to make this issue a valuable resource for the communities of undergraduate legal scholarship at Stanford and beyond I would also like to thank my Co-Editor-in-Chief Avi Gupta for the support he has provided me as I’ve taken on this role I’ve learned so much from his collaborative spirit, attention to detail, and command of google spreadsheets
Finally, I encourage our readers to engage generously with the work presented here and to think deeply about the issues at stake. The Stanford Undergraduate Law Review is committed to being a platform for rigorous and thoughtful discourse on these vital topics, and we welcome your contributions to it.
Hailey Rochin Editor-in-Chief, Stanford Undergraduate Law Review
In the United States, computer programs, or more precisely, the language from which they are composed, are treated as literary works. They are explicitly categorized as such under the definition in the Copyright Act of 1976, 17 U.S.C. § 101. 1 The primary aim of this article will be to examine the relationship between copyright and computer programs. This article contains three main sections: two descriptive and one prescriptive. The first descriptive aim is to provide a brief survey of copyright law and, more pointedly, the degree and scope of protection it confers onto software IP. This article will examine various cases that are historically significant to the characterization of copyright in relation to software. The second descriptive aim will be to use this background to inform a close reading of the recent Supreme Court case of Google v. Oracle in the historical context of software copyright. Finally, the third and prescriptive aim of this article will be to use the historical context provided to demonstrate that the conceptual schema provided by copyright is fundamentally unworkable when applied to computer programs. This schema results in cycles of overprotection and under-protection by copyright laws that are underpinned by the court’s misapplication of abstraction. Due to these issues, there must be a sui generis modality for accurately protecting computer program IP to deal with these degrees of abstraction.2
In the characterization of IP law that will follow, it becomes evident that computer programs exhibit a unique nature with respect to where they derive their IP value. Current copyright regimes cannot protect expressions of value without being prohibitively expansive or restrictive. The Office of Technology Assessment stated that “if copyright did not protect more than the literal code of computer programs, it would protect too little, and if it protected more than the literal code, it would protect too much.”3
As a brief roadmap of the survey being provided, this article will chronologically visit five cases and one Congressional act: Baker v. Selden (1879), White-Smith v Apollo Co. (1908), The Copyright Act of 1976, Franklin v Apple Computer (1983), Whelan v. Jaslow (1986), and
1 Copyright Act of 1976 17 U S C 106, ^ 17 U S C 107
2 Pamela Samuelson A manifesto concerning the legal protection of computer programs: why existing laws fail to provide adequate protection (1995) In Proceedings of the conference on Intellectual property rights and new technologies (KnowRight '95). R. Oldenbourg Verlag GmbH, DEU, 105–115.
3 Samuelson Manifesto (1995) 105–115 ; Copyright Act of 1976 17 U S C 106, ^ 17 U S C 107
Computer Associates Int’l v. Altai Inc. (1992). This article will provide a brief background of the facts in each case, a summary of the relevant copyright conceptualization precedent, and technical experts’ positions. These cases are critical to understanding the evolving nature of programs and the consequent scope of protection provided to them insofar as they are to be understood through the legal regime of copyright; therefore, it is integral to present them prior to illustrating the broader points that will be established in Google v. Oracle
A. Baker v. Selden
1. Background for Baker v. Selden
First, in Baker v. Selden, author and bookkeeper Charles Selden obtained a copyright for his book, “Selden’s Condensed Ledger,'' which details several methods of bookkeeping and organization.4 Many years later in 1867, William Baker devised an analogous bookkeeping schema, also describing similar methods of organization in his book.5 Baker ’s book was well-received and became commercially successful. The issue was taken to court, and ultimately the Supreme Court ruled that while the methods and utilitarian value of the two books were similar, the suit brought by Selden exceeded his copyright protections. On the grounds of copyright, the book was only protected insofar as it was textually expressive of the methods described within it, not of the methods or ideas themselves. As such, while Selden had the exclusive rights to reproduce the textual material of the book, he had no claim to the usefulness or methodology contained in the textual expression of the idea.6 The court established that in cases where copyright material may also be incidentally useful, the scope of copyright only extends to the means of expressing an idea; any ‘useful art’ or idea that was captured within that means of expression falls out of the scope of protection.
2. Implications for Baker v. Selden
This case is notable as it set a copyright precedent that explicitly established that the scope of copyright is strictly limited to the mode of expression — Selden’s detailing of his bookkeeping method —not the method itself. This court ruling is significant in that it firmly codifies this idea-expression dichotomy within copyright, and it then further states that copyright
4 Baker v Selden, 101 U S 99 (1879)
5 Ibid.
6 Ibid
ought to be understood as only protective of the expression in dual-natured cases. The characterization of copyright in this case as being protective of dual-natured works, but only to the extent that it is expressive and explicitly excluding functional subject matter, will have important implications on the nature of copyright in software going forward. An important exception to this dichotomy in software is the Merger Doctrine. It states that “if there is only one way of expressing an idea, then that way is not the subject of copyright."7This is such that if the expression of an idea is the idea itself, or is the single way of expressing an idea such that it prohibits works from being alternatively expressive of the same idea, then they are considered merged. Consequently, works of this nature are tried as being solely ideological as opposed to expressive; therefore, there can be no viable copyright under the rationale of the idea-expression dichotomy.
Next is the case of White-Smith Music Publishing Co. v Apollo Co. ; White-Smith Music was known for producing rolls for mechanical player-pianos (pianos with mechanical constructions inside that could be fed music rolls with notches in them, instructing the piano to play notes or songs). Eventually, among the many rolls produced, White-Smith made player-piano rolls for the songs “Little Cotton Dolly" and "Kentucky Babe.”8 The sheet music copyright of which was owned by Apollo. Subsequently, Apollo sued White-Smith for infringement of copyright. White-Smith successfully implemented the court's characterization of the idea-expression dichotomy in Selden to argue that player-piano rolls were mechanical instructions and therefore an alternative form of expression from sheet music in instantiating the idea of the songs. White-Smith argued that the sheet music copyright owned by Apollo only extended to the song insofar as it was expressing the idea of the song in the written notes, but that it did not apply to the idea of the song itself, and they did apply to the mechanical instructions.9 This is due to them not being directly perceptible in the same way as the sheet music, therefore, the player-piano rolls constituted an alternative method of expressing the idea of the song. The court found this argument favorable and ruled in favor of White-Smith.
9 Baker v. Selden, 101 U.S. 99 (1879).
Importantly, this holding reaffirms the idea-expression dichotomy provided in Selden. It upholds the premise that copyright extends only to the mode of expression in which an idea is contained, and the functional elements of said idea are not to be understood as subject to the same copyright’s scope of protection. Another main issue that the court turned on was the idea that particular instances of an idea being subject to copyrightability hinged on perceptible or intelligible to humans, as a means of expression, from something mechanically perceptible. In their decision, the Court stated that “hardly anyone could perceive or produce music by looking at a roll of paper with holes in it the same way they can with sheet music.”10 Most notably, with respect to computers, this precedent applies Selden’s dual works idea to machines and software. It explicitly denotes that the mechanical expression of an idea is both distinctly functional and a separate mode of expression that is not subject to protection under copyright. The White-Smith distinction of perceptibility and intelligibility between humans and machines distinguished two separate modes of expression which therefore prevented it from being bound by a single copyright protection. This has implications on the character of how a single copyright might be protective of declaring or programmer intelligible code, as opposed to object code, or more
After looking at these two traditional copyright cases and the standards they introduce for copyright, the Congressional Copyright Act of 1976 exhibits the codification of these principles relating specifically to computers. In the 1976 Act, Congress attempts to draw explicit bounds on traditional copyright protection, and, by extension, the exhaustive scope of rights that are conferred onto computers through them. Congress defines the scope and purpose of copyright as being “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 12 This is extended to computer programs in section 101, where it is stated that a “computer program is a set of statements or instructions to 12 Copyright
be used directly or indirectly in a computer in order to bring about a certain result.”13 This congressional classification is generally understood as being consistent with both Selden and White-Smith, which encompasses programs insofar as their constituent words are protected.14 It recognizes and reaffirms the idea-expression dichotomy and then extends it explicitly to computers. It establishes that code is subject to copyright, and the words that comprise the program are the mode of expression in which it is fixed and the subject of the copyright. This act fits code into the idea-expression dichotomy of Selden and White-Smith by pointedly making code the means of expression, stating that the idea of the code or the utilitarian function is not within the scope of copyright protection.15
Copyright therefore protects the code that constitutes the program which is fixed in the tangible medium of expression that is the assembly of words that act as constituent parts of value, rather than the functional program it produces itself. Congress goes so far as to say “the 1976 Act does not single out computer programs as a separate category of work subject to copyright protection, but the definition of the category ‘literary work’ is clearly broad enough to include them…and that in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”16 Congress preempts this in saying: “Some concern has been expressed lest copyright in computer programs should extend protection to the methodology or processes adopted by the programmer rather than merely to the ‘writing’ expressing his ideas. Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual process or methods embodied in the program are not within the scope of copyright law.”17
It is worth noting for future reference in the Google v. Oracle case that there are exemptions to copyright protection, even if an entity is a viable subject to copyright. One of the most commonly implemented exemptions is argument via fair use. The four main factors set forth for trying fair use are: (1) the nature of the copyrighted work, (2) the purpose and character
13 Ibid
14 Samuelson Manifesto (1995) 105–115
15 Copyright Act of 1976 17 U S C 106, ^ 17 U S C 107
16 Samuelson. Manifesto (1995) 105–115.
17 Ibid ; Copyright Act of 1976 17 U S C 106, ^ 17 U S C 107
of the use, (3) the amount and substantiality of the material being used, and (4) the market effect of violating the copyright on the aggrieved party.18 If these standards are met, it is often held that even if a court is to find in favor of copyright infringement, the infringing party can then make the claim that the infringement constituted fair use.19
The 1976 Act was negatively received with respect to software and throughout the tech industry; however, the protection copyright provided to textual works was also conceded to be a necessary but insufficient mode of providing protection.20 A collection of tech industry professionals and experts convened in support of a broader scope for copyright protection as it applies to computer programs, submitting a proposed amendment to the 1976 Copyright Act section 102(b) to Congress. The proposed amendment aimed to provide protection to certain functional elements of programs, in part overturning the idea-expression dichotomy when copyright is applied to programs. The amendment defined copyright protection as "the logical choices made by those personnel working on the design phase of program development."21 The amended section 102(b) would have further stated that “copyright protection may exist in a collection of ideas or abstractions, arbitrarily selected from a plurality of alternative ideas or abstractions or in a discretionary pattern of events or processes."22 According to proponents of the amendment, this change would allow copyright to extend to more meaningful elements of software.23 Arthur Miller, a computer science professor and head of the Commission on New Technological Uses of Copyrighted Works (CONTU) promptly rejected the proposal, reasoning that to do so would be fundamentally at odds with what copyright inherently protects. Miller responded to the amendment by stating: “It would have been inconsistent with the traditional nature of copyright protection for particular forms of expression and not for underlying processes…[CONTU and Miller] declined to adopt a recommendation by proponents of copyright for the logic of computer operations that would have amended the Copyright Act to provide that [a] computer program may be a derivative work of a flow chart and either may be a derivative work of a literary work.”24 Miller's rationale here is that copyright protection and the
subsequent protection afforded to computer programs ought to uphold the traditional bounds of copyright. This would include the idea-expression dichotomy in Selden, which should be understood to firmly apply to computer programs.25 As such, Miller rejected the proposal on the grounds that the organizational elements of programs which are not expressive enough to qualify for copyright protection under the traditional congressional statutes. Miller argued that they ought not to be protected beyond those mentioned above that are discretionarily and explicitly fancifully “selected from a plurality.”26
Until now, the protective scope of copyright in dual-natured cases that contain both an idea and expression has been consistent across Selden, White-Smith, and Congress. It is understood to be protective of the non-functional nature of things, insofar as they are the expression or a single mode of instantiating an idea but not the idea itself. The Copyright Act of 1976 establishes that, by extension, computer programs can be understood as subject to copyright but only insofar as it is text, which is a mode of expression for the underlying process that the code produces. But next is the first application of this conception of copyright as it relates to software in Apple Computer Inc v. Franklin Computer Corp, which partially overturns these distinctions.
In 1977, the well known computer manufacturer and operating system developer Apple released the Apple 2, one of the first widely produced microchip home computers. Later, in 1982, Franklin released the Franklin Ace 1000, a similar microchip-operated personal computer whose operating system, interface, and means of interacting with the Random Access Memory card were very similar to the Apple 2. 27 Apple promptly sued for copyright infringement on the grounds that Franklin had copied sections of Apple’s BIOS and firmware code—the lower-level machine code that is hard encoded into hardware, and the code sends signals to the actual mechanics of the computer.28 Franklin challenged the validity and scope of protection that copyright could provide to these two elements, contending that both the BIOS and lower-level
firmware fail to meet the statutory requirement of "fixation."29 Section 101 of the 1976 Copyright Act, 17 U.S.C. § 102, provides in part: (a) “Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived.”30 Congress is providing an exhaustive list of mediums that constitute authorship, which computer functions are not explicitly included in. The act also elaborates on the fixation and perception requirements in section 101: “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a permanent or stable medium to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”31 Franklin argued that Apple had a valid copyright to this text but not to the machine executable lower-level code. Franklin further contended that the copyright extends to the words and higher-level programming language since they are explicitly listed as constituting a validly fixed form of authorship; however, the corresponding functions produced by the computer and the lower-level, human-unintelligible machine code was not bound by that same copyright, and was overall invalid as a subject to copyright at all as it was not perceptible, as in 102(a), and that it also failed to be considered validly “fixed” according to section 101.32 Lastly, Franklin made an interoperability claim stating that the firmware only allowed for interactions with BIOS written by Apple, and in order to validly interact with this firmware they had to copy the code as it was written. They likened it to a machine whose parts were not functionally aligned but aligned by design; a manufacturer creating a washing machine whose bolts were such a unique shape that they could only be replaced by bolts created by that same company 33
While the district court ruled in favor of Franklin, Apple appealed the ruling to the Third Circuit Court. The federal court was decisively in favor of Apple on two of the three accounts, holding that the program embedded in a ROM that conveys hardware instructions, as well as lower-level human unreadable BIOS code, were both validly protected by copyright. It cited the
29 Ibid; Schmidt, Robert (July 1994) "What Is The BIOS?" Computing Basics Archived from the original on 2012-03-10. Retrieved 2011-09-19.
30 Copyright Act of 1976 17 U S C 106, ^ 17 U S C 107
31 Computer Copyright Law: An Emerging Form of Protection for Object Code Software After Apple v. Franklin, 5 Computer L J 233 (1984) Anderson L Baldy III
32 Apple Comput , Inc v Franklin Computer Corp - 714 F 2d 1240 (3d Cir 1983) ; Computer Copyright Law: An Emerging Form of Protection for Object Code Software After Apple v Franklin, 5 Computer L J 233 (1984) Anderson L Baldy III ; Schmidt, Robert (July 1994) "What Is The BIOS?" Computing Basics Archived from the original on 2012-03-10. Retrieved 2011-09-19.
33 Apple Comput , Inc v Franklin Computer Corp - 714 F 2d 1240 (3d Cir 1983)
sections of the copyrights status above, emphasizing that both BIOS and ROM programs were “sufficiently permanent or stable to permit it to be...reproduced, or otherwise communicated" with respect to the intended purpose of this provision in the statute.34 Furthermore, the court cited 17 U.S.C.S. § 410(c), saying that a valid copyright constitutes “prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” With this argument, Apple is presumed to hold a sufficiently protective copyright against Franklin’s infringement, and it is granted en arguendo that infringing on copyright would violate the third and fourth statute of copyright. (the substantiality and market effect would jeopardize the copyright holder ’s investment) Franklin fails to overcome this challenge.35 Lastly, it challenged Franklin’s interoperability argument as to whether Apple’s BIOS was one of a limited number of ways of expressing the functional ends of interacting with its firmware. On this third argument, Apple and Franklin settled. This argument has congruence with the subsection of the copyrights statute above regarding protection understood as discretion “arbitrarily selected from a plurality of alternative ideas.”36
Franklin’s defense case can be squarely understood on the premises for copyright law outlined above in this article. Franklin invoked Selden and argued that there is an idea-expression dichotomy, and the computer code constitutes an expression of the functional, “ideological” elements of a computer only insofar as it is text. Therefore, the copyright can only extend to that text but not beyond it. Then, like in White-Smith, Franklin further argued that Apple held a copyright that was exclusively protective of the human perceptible instance of expression: the words that constituted the code in the higher-level software, as opposed to the BIOS or firmware, which are invalid copyright material. This is very evocative of the distinction White-Smith made between the human-appreciable notes on the sheet music copyright held by Apollo as opposed to the machine-readable player-piano rolls. However, while Franklin’s argument is almost identical in nature to White-Smith in this regard, the court's ruling stands in sharp contrast to that case overall. This case showcases the beginning of the conceptual misalignment between copyright in
34 Ibid
35 Apple Comput , Inc v Franklin Computer Corp - 714 F 2d 1240 (3d Cir 1983); Schmidt, Robert (July 1994) "What Is The BIOS?" Computing Basics Archived from the original on 2012-03-10 Retrieved 2011-09-19 ; Computer Copyright Law: An Emerging Form of Protection for Object Code Software After Apple v Franklin, 5 Computer L.J. 233 (1984) Anderson L. Baldy III
36 Copyright Act of 1976 17 U S C 106, ^ 17 U S C 107
computer programs and in traditional dual-nature cases. Responding to the widespread criticism of the 1976 statute set forth by Congress—which was seen as underproductive in their application of copyright standards to software—the court ruling in Franklin acts as a countervailing force to a degree.37
Franklin establishes what is largely viewed to be an overturning of the idea-expression dichotomy and Miller ’s rejection in CONTU of the amendment to include organizational elements. As Peter S. Menell, Koret Professor of Law and co-founder and director of the Berkeley Center for Law & Technology, states: “viewing the idea-expression dichotomy at such a high level of abstraction produced an overbroad scope of copyright protection because it resulted in all implementations of the idea garnering protection. Furthermore, the Third Circuit’s misreading of merger analysis and the idea-expression doctrine implicitly allowed copyright protection of procedures, processes, systems, and methods of operation that are expressly excluded under § 102(b).”38 In response to industry pressures, the court effectively allowed for the overturning of § 102(b) and effectively subverted Congress, as though the proposed expansive Congressional amendment had passed. This sets a precedent for further cases to be subject to copyright protection at higher degrees of abstraction concerning their more organizational elements even if they are not selected “from a plurality” as pure expressive.
1. Background of Whelan v. Jaslow
Whelan Associates v. Jaslow was an explicit expansion of copyright protection in computer programs regarding higher-level non-literary elements. In 1978, Rand Jaslow attempted to build a computer program that would handle patient scheduling, billing, and overall logistics for dental offices and dentists in a widespread capacity. Eventually, Jaslow would outsource the production of his dental program to Strohl Systems. The program was completed in 1979 by the owner of Strohl and Elaine Whelan, and it was named Dentalab. The commercial character of the program was agreed upon as being owned by Strohl systems, with a provision providing for a 10% commission to Jaslow when it was licensed to users.39 Eventually, Whelan
38 No 18-956 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Peter Menell David Nimmer.
39 Whelan Associates v Jaslow Dental Laboratory 797 F 2d 1222 (3d Cir 1986)
37 Samuelson Manifesto (1995) 105–115 ; Apple Comput , Inc v Franklin Computer Corp - 714 F 2d 1240 (3d Cir 1983) ; Computer Copyright Law: An Emerging Form of Protection for Object Code Software After Apple v Franklin, 5 Computer L J 233 (1984) Anderson L Baldy III 10
left Strohl, parting with the copyrights to all products owned by Strohl, including Dentalab. Jaslow would go on to use the original source code to rewrite Dentalab in the computer language BASIC, and he released a functionally similar and organizationally near identical version of the program branded Dentlab—an ostensible successor to Dentalab. It was received with great success, as the BASIC rewrite enabled it to run on the more ubiquitous IBM series 1 personal computers. Jaslow filed suit for copyright infringement due to the copying of the program’s structural elements such as routines and subroutines, as well as similarities in the programs’ user interface and the dental office functions they provided for.40
2. Ruling in Whelan v. Jaslow
Jaslow did not dispute the factual claims of copying the organizational means of writing the program via routines and subroutines organized by Whelan, as well as the overall elements that made up the user interface. Rather, Jaslow disputed the legal claim over the validity of the copyright to the extent that it protected these “non-literary” elements. It further conceded that although Franklin establishes an extension of program copyright to object code and the mechanical text, even that extension was purely textual in nature. At margin, Jaslow pointedly argues that even if we grant that these elements are valid subjects of copyright—particularly the organization of the code into routines and subroutines such that they can be a workable program—they ultimately produce functional results in the computer and are therefore exempt from copyright protection under the merger doctrine. The expressive organizational nature of them is integral to the functioning of the program, and therefore this particular expression of the idea is intrinsically tied to achieving the idea itself.41
The court overcame both arguments made by Jaslow and decisively sided with Whelan. They held that copyright has always conferred protection onto its subjects at higher levels of abstraction. Arguing by analogy via traditional literary works, the court cited various seminal copyright cases in media that disputed copying plot structures, events, and characters within stories, movies, and plays.42 The court goes on to cite a provision within the 1976 Copyright Act written by CONTU that would allow the court to exercise discretion when ruling on non-literary elements in program cases: “The separation of idea from form of expression . . . is better realized through the courts exercising their judgment in particular cases [rather than by a per se rule]. . .
Flow charts, source codes, and object codes are works of authorship in which copyright validly subsists.”43 Thus, the court ruled that the law ought to consider elements at higher levels of abstraction as being similarly protected by copyright, and that the means of organizing something into routines and subroutines, as well as the general organizational features were within the scope of copyright.44
The court also goes on to address the more marginal contention made by Jaslow regarding the merger doctrine defense. The court found that this same functional outcome could have been achieved through a variety of sub-routine arrangements, and that there are many expedient ways to organize a dental practice. Citing that there were other competitors in the market, the court also argued that the particular features of the Dentalab program were not necessary incidents to the overall idea of a viable dental program.45
The court’s ruling in Whelan establishes copyright protection for non-literary elements in computer programs, and it created a radically expansive precedent as to what constitutes expression, even at higher levels of abstraction. Particularly, by adopting the premise that “the ‘purpose’ of the program at issue was to ‘aid in the business operations of a dental laboratory.” 46
The court permits protection of expressive degrees of abstraction so high that any dual-natured work protected at this level would necessarily be ideological in nature, as it is too abstract. Plurality of expression occurs in implementing these ideas more specifically at lower levels of abstraction; therefore, the organizational protection being granted by the court, especially at this overarching level, would also protect each instantiation of expression for that abstract idea, even if it can be characterized as expressive. Furthermore, by claiming that everything within a dual-natured work is bound by copyright so long as it is expressive, the court creates an inclusive ruling rather than the exclusive one established in Selden. 47
In Selden, the initial ruling on the idea-expression dichotomy established exclusively that if elements of expression are functional, they are precluded from copyright. Therefore, elements of Selden’s condensed ledger that were essential to that method of bookkeeping were not
copyrightable. Whelan’s merger analysis is the contrapositive to that. Traditionally, the idea-expression dichotomy established and held since Selden provides exemptions to copyright protection for expressly protected elements that are also essential to an idea, precluding them from the narrow copyright. This establishes exclusive conditions for merger applications. Whelan’s contrapositive ruling on this creates a precedent such that everything which is not subject to merger analysis is automatically considered expressive regardless of the level of abstraction that expression is within—establishing inclusive prima facie conditions for merger application. If Whelan’s rationale was applied to Selden, the ruling would be incredibly protective of Selden’s work, as it does not create bounds to exempt functional idea-containing elements of the bookkeeping method from copyright. This would grant a broad prima facie assumption of universal protection of everything expressive, and everything which was not necessary to a function would be considered expressive, such as how Selden chose to organize the book. To be protective of Selden in the same way Whelan aimed to be protective of the overall “purpose of aiding in the business operations of a dental laboratory.”48 This would be the same as allowing Selden to have exclusive ownership of his idea, as it is an expressive sub-instance selected from a plurality of expressing the more abstract idea “expedient means of bookkeeping,” which would iterate out to many broad forms of protection for that bookkeeping method in various instances that are counterintuitive.49
To further apply the inclusive idea-expression ruling to White-Smith, the expression would be identified at a level of idea as abstract as “well-arranged notes to create a song” chosen from a plurality of other notes and sub-arrangements of these notes, such that “Little Cotton Dolly" and "Kentucky Babe'' can be interpreted as instantiated expressions of that over broad idea.50 This would lead to a completely antithetical rationale to the ones historically seen, and it would implicitly allow for contradictions to express prohibitions against “procedures, processes, systems or methods of operations” as laid out under § 102(b).51
Industry Reactions to Whelan v. Jaslow
Keeping with the trend of expansion in Franklin, in order for the court to appropriately apply copyright law to computers, they must identify modes of expression at various levels of abstraction that are asymmetrically over-protective of the copyright material relative to Selden. In both legal academia and technology, the precedent set by Whelan is widely criticized as being vastly prohibitive, and it is often cited as a quintessential example of copyright protection being inhibitive of tech innovation. Renowned law professor Melville Nimmer states: “The crucial flaw in [Whelan’s] reasoning is that it assumes that only one ‘idea,’ in copyright law terms, underlies any computer program, and that once a separable idea can be identified, everything else must be expression.”52 In the years following Whelan, a vast increase in the number of cases alleging copyright infringement of computer programs can be observed, citing Whelan and the protection it provides to “non-literary elements” as grounds for their suits.53
The final case being examined for historical context prior to Google, is Computer Associates International, Inc. v. Altai, Inc , which calibrates the scope and degree of protection provided to the abstract non-literary elements established in Whelan. Computer Associates (CA) is a tech company that specializes in creating software products that manage user and mainframe data. CA released a scheduler program for computer mainframes called CA-SCHEDULER. What made the CA scheduler commercially distinct was that most proceeding scheduler programs would interpret code into the mainframe of a particular system. CA-SCHEDULER, however, had a feature called “ADAPTER” which allowed it to translate user inputs into commands executable by various operating systems and mainframes rather than being written to just one.54
Years later, Altai Inc, another software company that releases products for the IBM mainframe, created a similar scheduling software—ZEKE, which ran specifically on the IBM VSE mainframe. In 1982, James Williams, an employee at Altai Inc, recruited his friend Claude Arney to aid in expanding ZEKE by writing a version that could schedule for a specific IBM mainframe MVS. Arney, however, convinced Altai to create a version of ZEKE that could
interface with various mainframes analogous to CA’s ADAPTER, rather than rewrite ZEKE for one specific mainframe. While designing ZEKE’s successor program the OSCAR 3.4, Arney reimplemented several lines of code verbatim, as well as broad organizational methods such as the routine and subroutine arrangements he had used in writing CA’s ADAPTER. Arney successfully created the OSCAR 3.4 for Altai, which contained a framework-interoperable translator similar to ADAPTER. Over 30 percent of OSCAR 3.4’s source code was taken directly from the code repository Arney had written in creating CA-SCHEDULER. Ultimately, CA discovered Altai’s use of the ADAPTER code and filed a suit alleging copyright infringement. Altai claimed copyright infringement over both the direct lines copied insofar as they were misappropriated text, as well as the non-literary elements that constituted the broader functional structure and overall purpose of ADAPTER. They cited the protection of mechanical text and non-literary elements provided in Franklin and Whelan, respectively 55
On the first claim, the court cited Franklin, stating that a clear precedent had been established subjecting machine code to copyright protection. The court held Altai to be squarely in violation of CA’s copyright on the first claim. However, Altai ordered a “clean room rewrite,” where the functions that were produced by the copyright code were re-written without looking at the former code, and that iteration—the OSCAR 3.5—was found to not be in violation of copyright.56 Therefore, the court ruled that there had been no copyright infringement with respect to the overall structure or purpose of the program that had been alleged in the second claim made by CA.57 The second claim was evaluated under the premise that the precedent set forth in Whelan was protective of non-literary elements; the court proposed a test aimed to identify substantially similar copyrightable material within the non-literary elements of code that is marginally discretionary beyond the function of the elements when each element is isolated to various degrees of abstraction. The court noted that they would depart from applying the rationale in Whelan, stating that “[the Whelan method] did not place enough emphasis on practical considerations…and was too broadly reaching [in its protection of abstracted
55 Computer Assocs Int'l v Altai - 982 F 2d 693 (2d Cir 1992) ; Mark A Lemley, Peter S Menell, Robert P Merges, and Pamela Samuelson, Software and Internet Law (3d ed 2006)
56 Ibid
57 Computer Assocs. Int'l v. Altai - 982 F.2d 693 (2d Cir. 1992) ; Mark A. Lemley, Peter S. Menell, Robert P. Merges, and Pamela Samuelson, Software and Internet Law (3d ed 2006)
elements].58” This new test was brought about to resolve issues that occurred when protection was granted at such high levels of abstraction. As the name suggests, this test was composed of three main layers. Abstraction, which identifies five main layers of abstraction to programs; 1) The individual instructions, 2) The groups of instructions organized into a "hierarchy of modules," 3) the functions of the lowest-level modules, 4) the functions of the higher-level modules, and 5) the "ultimate function" of the code. The second layer, Filtration, which attempts to identify functional elements that would be ideological or subjects of the merger doctrine in each of the five respective layers. The third layer, Comparison, which would compare all remaining elements within each of the five levels of abstraction for substantially expressive similarity beyond the margin of utility.59
If this court had concurred with the inclusive application of the merger doctrine in Whelan, it would have likely held in favor of CA on the second claim, as the level of abstraction was protective of “the purpose of aiding in the business operations of a dental laboratory.” 60 This would likely be protective of the overarching purpose of CA’s “ability to interoperate with several mainframes.”61 However, the court argued that non-literary elements should be subject to more rigorous standards—standards which ought to be calibrated to each level of abstraction. The court’s ruling in this case is cohesive with the expansive nature of copyright protection by accepting Whelan’s premise that overall structure and organizational elements can be copyrightable at all. The important distinction made by this court regarding abstraction reigned in the degree of expansion established in Whelan
The Abstraction-Filtration-Comparison test is largely heralded as a much-needed corrective to the standards of Whelan. However, it has also been roundly met with criticism from many technology companies. CA, along with several other tech giants, criticized the decision as being too narrowly protective of computer program IP. They argued that this would create a lack of incentive to innovate in marginally expressive ways in computer optimization and
58 Mark A Lemley, Peter S Menell, Robert P Merges, and Pamela Samuelson, Software and Internet Law (3d ed 2006)
organization of modules and subroutines, as those would be subject to the filtration layer and not be protected adequately enough to ensure proper ownership of IP.62
Throughout the case law above two overarching trends can be observed. The first is that traditional standards for copyright either become over-protective or under-protective of their subjects when applied to computer programs. Exclusive exemptions to copyright established in Selden allow for the idea-expression dichotomy and merger defenses that preclude certain inherently idea-containing expressions from copyright protection. This is expanded consistently in White-Smith, which holds that songs exist in more abstract “idea” forms than the mediums of sheet music or piano player rolls in which they are expressed. This consistent way of adjudicating copyright protection claims in dual-natured cases is consistently applied to traditional copyright disputes. The cases that explicitly try computer programs according to copyright doctrine as it applies to computers begin to provide protection to more abstract elements. Franklin explicitly goes against the White-Smith ruling that copyright does not appropriately extend to elements that are not humanly-appreciable by allowing protection to be conferred onto the Apple BIOS code. Furthermore, the court ruling in Whelan was an incredibly protective measure that allowed this extension to technical elements to also be construed as protecting non-literal elements such as broad organizational structures. Finally, in Altai, this is corrected for, but only to the degree that these abstract structures are subject to the Abstraction-Filtration-Comparison test.63 Professor Jermone Reichman of Duke University identifies similar cycles that occur in classical intellectual property regimes to protect other dual-natured works, showing an identical process of overprotection and under-protection over a 200-year period.64 Reichman advances that these cycles occur as the result of a fundamental misalignment between the value of the dual-natured works and the legal authorities who attempt to either incompletely or over-broadly identify the work in the conceptual bounds of existing regimes. As the legal system does this, the market ramifications create countervailing pressures
62 Samuelson Manifesto (1995) 105–115 ; Computer Assocs Int'l v Altai - 982 F 2d 693 (2d Cir 1992) ; Mark A Lemley, Peter S Menell, Robert P Merges, and Pamela Samuelson, Software and Internet Law (3d ed 2006)
63 Samuelson Manifesto (1995) 105–115
64 Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976 J H Reichman
from the industry, which intervene and pressure legal authorities to extend the boundaries of existing regimes and leads to congruent over-protection in reaction to under-protection.65
Through the case law provided, these cycles can be observed both in over-protection or under-protection through narrowly defining computer programs relative to copyright statutes or mischaracterizing them too broadly. Reichman contends that these cycles are indicative of a volatile and untenable conception of the IP in question, which signals the need for a sui generis IP approach, to protect them. By application, this article also contends that the resolution to these cycles is necessary to bring about a more sustainable and appropriately protective modality for copyright. Protecting computer programs requires taking into account specific unique elements, as well as the degrees of abstraction which is distinct from the conceptual schema of copyright.66
The second broader trend that can be observed is that these cycles are underpinned by how the Court characterizes programs in relation to their hierarchy within abstraction. The Court’s decision to rule exhaustively on the ultimate abstract function of the copyrightable subject such as “the medium in which the idea of the song is fixed in the notes or player piano rolls” is a different level of hierarchical abstraction than “aid in the business operations of a dental laboratory.”67 As described above in the implications section of Whelan v. Jaslow, by issuing a ruling that included any degree of abstraction is to axiomatically create an over-broad ruling on what would be protected; however, to not do so would effectively subject a broad range of abstract ideas to the merger doctrine. This is because the Court’s characterization of “abstraction” is incomplete in some respects. Abstraction is the subsumption of objects and particular instances of something as it exists relative to the abstraction. In other words, any abstraction is definitionally something that contains the capacity to be further iterated or expressed. However, this method is also incomplete, as it assumes that things can exist within the hierarchy of abstraction, as abstract classes as such without containing all subordinate classes as expressive of that protected level of abstraction. All levels of abstraction ontologically and infinitely subsume all iterations that exist below them; every idea contains the various means of expressing it by virtue of being an abstraction. Conversely, all abstractions are marginally
65 Samuelson Manifesto (1995) 105–115 ; Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976 J H Reichman
66 Samuelson Manifesto (1995) 105–115 ; Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976 J H Reichman.
67 Ibid
expressive of the abstraction that exists above them in the hierarchy, insofar as they particularize some instantiated feature of that broader abstraction. Whelan’s expansive contrapositive to the traditional merger analysis would subject all plurally expressive ideas to protection. The court in Altai accurately recognized that this protection of more abstract elements necessarily leads to the protection of “ideas” in issuing its corrective to Whelan Therefore, the Abstraction-Filtration-Comparison test compares each element at equivalent levels of abstraction to determine, to the non-abstract degree, which elements within these same levels is discretionarily expressive of the level above it. However, entertaining “non-literary” elements or abstractions at all is to be permissive of copyright protection of ideas, as the two are inextricably linked. The fundamental issue is how the Court should establish the ultimate level of abstraction, and which levels should be explicitly declared as sub-abstractions within it.
In Selden, the court found the highest level of abstraction to be Selden’s particular idea of a bookkeeping method; however, if the court had found the highest abstraction to be “bookkeeping methods,”, then Selden’s particular method would be marginally expressive of that idea rather than being the all subsuming idea itself. In White-Smith, the idea was identified as being the song; if the Court had found the idea to be “aesthetically appreciable note arrangements,” then the song would exist a degree of abstraction below that and would therefore be marginally expressive. The Court’s rationale of the ultimate degree of abstraction varies based on each case, and it lacks a conclusive codification of how abstract elements interrelate with each other Without rigorous standards to codify these relations, the court can discretionarily identify an element as being the highest degree of abstraction in a case, and that would then determine what becomes marginally expressive. In Franklin, the claims brought against Franklin by Apple are analogous to White-Smith being sued by Apollo. However, the reason the decision applies to a different rationale is because the overarching purpose governing the case was identified at a higher degree of abstraction. In Franklin, the Court identifies the overarching idea at the level of BIOS systems and firmware in general, and that dictates that Apple’s instance of BIOS is expressive in subordination to it. By analogy, this would be equivalent to the Selden ruling that the idea exists at the level of “general bookkeeping,” which Selden’s particular instance would express, or if White-Smith had ruled the idea to be existing at the level of “aesthetically appreciable note arrangements,” which the particularized songs themselves would express. When
Whelan overcomes the merger analysis in Selden by assuming a contrapositive position inclusively, it does so by establishing the governing idea at a higher level of abstraction: “the purpose of aiding in the business operations of a dental laboratory.68”
This necessarily dictates that the degree of abstraction below it—the particular form of expressing “the purpose of aiding in the business operations of a dental laboratory” seen in Whelan’s program—suggests that these more abstract elements were marginally expressive because they existed as instantiating expressive relative to that broader idea, which is a much higher level of abstraction than Selden. Although the decision in Altai is more nuanced than Whelan in how it protects non-literal elements, it similarly errors when construing a concept of abstraction. The Abstraction-Filtration-Comparison test attempts to resolve the proximate issues created by the abstraction problem, but it does not address the root cause. Comparing the marginally expressive elements within corresponding levels of abstraction provides the most satisfying test yet; however, the levels of abstraction are exhaustive and particular to the case. Furthermore, this test does not address why certain features are seen as expressive and to what end they are relatively expressive. If the system appropriately adjudicated on how the Court ought to justify fixing an ultimate “idea” to which all subordinate elements could be held expressive, and which elements would be explicated as being at which level of abstraction, then it could overcome these issues more meaningfully.
In 2021, the Supreme Court heard the case of Google LLC v. Oracle America, Inc. which spanned several years and several courts of appeal. In 2005, Google acquired Android Inc to push Google software to mobile operating systems development and the manufacturing of smartphones.69 Google wanted to take advantage of the widespread familiarity programmers had with Java and the Java libraries to expedite the process of developing Android. Java is a programming language created by the software company Sun Microsystems, which would later be acquired by Oracle. Java is one of the most ubiquitous programming languages, and its
developer environment has several distinctive features and code libraries. Negotiations regarding the licensing broke down, and Google ultimately opted to create a proprietary Android platform. In writing their proprietary program developer environment, Google copied 11,500 lines of code from Java.70 The Court recognized this code as “implementing code” within the Java API. In programming, an application programming interface (API) is a system of creating several names that reference basic computer functions and actually performs the function each time it is referenced. This system allows programmers to reference basic functions by a uniform name rather than rewrite the implementing code every time. A call to implement an API follows strict protocols based on the hierarchy of the corresponding implementing code being referenced. An example would look like java.lang.Math.max(4, 6), which would correspond to implementing code within the java language, in the package of that language that contains math related methods. This then calls the specific method in that package “max” which compares values between whole integer values. With this in mind, Google rewrote all of the corresponding implementing code to carry out specific functions. It also recreated unique methods of calling these functions through implementing code; however, for 37 packages, Google copied the declaring code from the Sun Java API. For the 37 packages of concern, Google copied the reference names given to corresponding tasks and the grouping of those tasks into classes and packages hierarchically, both in how they organized their novel implementing code, and in the way the implementing code would be structured, sequenced, and organized (SSO). These 11,500 lines of declaring code constituted 0.4 percent of the overall codebase for the Google Android API, which included 2.86 million lines of code.
Oracle filed suit, claiming that Google had infringed on their copyright in its use of the literary elements in the 37 packages, the non-literal structural arrangement of the declaring code calls, and the corresponding organization of their implementing code into packets and classes. Google disputed the general copyrightability of Java’s SSO but also argued that its use of the SSO constituted fair use. Google’s contention was that it copied only elements necessary to
allow programmers to be familiar with their platform to call up functions from Google’s own implementing code.71
1. District Court Background
This case gets broken down into various phases, as it was appealed several times. The first phase attempts to characterize the nature of APIs in determining if they fall within the scope of copyright protection. At the district court level, Oracle’s primary claim was that Google had violated its copyright by organizing its packages and classes in a similar way to the Java SSO. Oracle cited Whelan and Altai to demonstrate that there was precedent for copyright protection of non-literal elements such as the SSO. They further claimed that the elements copied were similar categorically within the same degree of abstraction under the application of the Abstraction-Filtration-Comparison test; they argued that the declarations fall under the first provision—as they are textual—and the organizational structure of the Java SSO packets constituted protection under the second degree of abstraction: “groups of instructions organized into a "hierarchy of modules.72” Google’s counter contention was that all the methodologies Oracle claimed were protected under the scope of copyright in this case were subject to the explicit exemptions to copyright in 102(b) statutes and the merger doctrine. They contend that the Java SSO fits into the 102(b) exemption: “in no case does copyright protect procedure, process, system, method of operation.73” Google argued that the declaring code, and necessary organizational methods of the packets and classes that responded to them were entirely functional. Oracle’s counter to this was that the exact means of arranging these packets hierarchically and with the particular nomenclature was done so “from a plurality” and was therefore marginally non-utilitarian to the extent that they were discretionarily named and organized in that particular fashion.74
71 Google LLC v Oracle America Inc summary 593 US (2021) ; GOOGLE LLC v ORACLE AMERICA, INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 18–956.
Argued October 7, 2020 Decided April 5, 2021 ; Google LLC v Oracle America, Inc Leading Case : Harvard Law Review 141 S Ct 1183 (2021)
72 Google LLC v Oracle America Inc summary 593 US (2021) ; GOOGLE LLC v ORACLE AMERICA, INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No 18–956
Argued October 7, 2020 Decided April 5, 2021 ; Google LLC v Oracle America, Inc Leading Case : Harvard Law Review 141 S Ct 1183 (2021)
73 Google LLC v. Oracle America Inc. summary 593 US (2021).
74 Google LLC v Oracle America Inc summary 593 US (2021)
The district court judge was favorable to Google’s defense using the 102(b) statutes, ruling that APIs and the corresponding declaration code are not copyrightable: “[The API’s] command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted.”75 The judge found the specific modes of organization to be outside the scope of copyright because even if they were discretionary, it tied the discretionary elements to that particular instance of function. It was therefore subject to merger exclusion, as this particular method of invoking the implementation was the only way to do so for this corresponding expression of the implementation. The jury in the case did find Google to be in violation of the verbatim text copied, but only to the extent that it would constitute minimum statutory damages.76
Both parties appealed the decision—Oracle on the decision of API copyrightability, and Google on the account of minimal copyright violation. The federal appeals court reversed the district ruling. It found that Java’s SSO’s was an expression of the idea of a taxonomy system, and as such the discretionary elements such as the names and hierarchy to the structure were protected. The court held that the “overall structure of Oracle's API packages is creative, original, and resembles a taxonomy.77” Therefore, the court held that these elements were expressive as the idea being protected occurred at a broader level of abstraction: the overall idea of a taxonomy This higher degree of abstraction implies that each discretionary element of organizing this taxonomy was expressive, and as such it overcame the merger doctrine and 102(b) ruling from the district court. Google appealed this decision to the Supreme Court, but the appeal was denied, therefore fixing the premise that API’s are copyrightable, and the non-literal elements of the Java SSO were protected by copyright. The case then gets reissued to understand whether Google had acted in fair use, operating under the proposition that they were in violation of Oracle’s copyright protection for the SSO.78
The second phase concerning the fair use argument spanned several courts of appeal, and it eventually reached the Supreme Court, which ruled 6-2 in favor of Google. The Supreme Court noted that they would assume the premise that an API can be protected by copyright, because if the fair use claim was found to be valid, it would render the copyright question moot regardless. This assumption also allowed the Court to not render a broad ruling on the nature of APIs. Justice Breyer, who issued the concurring opinion, stated: “to decide no more than is necessary to resolve this case, the Court assumes for argument’s sake that the copied lines can be copyrighted, and focuses on whether Google’s use of those lines was a ‘fair use.79’ After making two distinctions, the Court proceeded to try the case on the four fair use factors outlined above. The two distinctions involved distinguishing implementing code as well as the API as non-expressive. The court derived this distinction from rationale similar to the district court, stating that the SSO of packets and classes, as well as the corresponding declaring code, exist as the sole way of invoking those particular functions. This would therefore subject them to the merger doctrine and preclude them from copyright protection. The second and related distinction draws on identifying where the copyright value ultimately exists. The Court wanted to create a ruling that would counterbalance both incentives in protecting IP and allow enough leniency to allow innovation. The Court found that although there is interest in protecting the time investment in creating Java, the primary value disputed in the case concerned the time investment and skills individual programmers undertook in learning Java. The Court found that this element can be isolated to the extent that Google had only copied the implementing code and corresponding SSO insofar as it allowed programmers familiar with Java to use their platform. This mode of value being reliant on familiarity with a system was likened to the layout of QWERTY keyboards or a car's various pedals. The Court therefore held that the nature of the SSO and declaring code was categorically not subject to copyright. With this in mind, the nature of the contested copyright was diminished to a lower standard of proof for the fair use claim. The Court moved to try the case on matters of fair use, applying the four statutes laid out in the 1976 act and deciding in favor of Google on all four accounts. They found that the nature of the work, as well as character of the use, was done to the most minimal degree that would allow programmers to use their investment in learning the Java system. Furthermore, on the factors of
the substantiality and market effect, Justice Breyer stated that Google did not copy the Java SSO because of the prose or organizational beauty it had, but rather for the sake of usefulness.80 He stated that Google copied those lines “not because of their creativity, their beauty, or even (in a sense) because of their purpose. It copied them because programmers had already learned to work with [Java SE], and it would have been difficult to attract programmers to Android without them.81" The overarching ruling issued by the court established that Google had only copied the API and declaring code to the extent that it would allow programmers to use their platform. This ruling on the fair use claim would render an evaluation of API copyrightability unnecessary. 82
b. Supreme Court Dissenting Opinion
Justice Thomas delivered a dissenting opinion and was joined by Justice Alito. In it, they counterclaim that by proceeding with the premise of copyright protection without substantively evaluating the premise, the majority opinion erroneously characterized the SSO. Thomas stated that computer program copyright extends to non-literary elements and cited the 1976 act:
80 Google LLC v. Oracle America Inc. summary 593 US (2021).
81 Google LLC v Oracle America Inc summary 593 US (2021) ; GOOGLE LLC v ORACLE AMERICA, INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No 18–956
Argued October 7, 2020 Decided April 5, 2021 ; Google LLC v Oracle America, Inc Leading Case : Harvard Law Review 141 S Ct 1183 (2021) ; With Google v Oracle Decided, Experts Assess Its Impact on Software and Beyond Berkeley Law Review (2020)
82 Ibid
“[computer program copyright applies to] a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”83 Thomas argued that the use of “indirectly” in the context of protected content, as well as the precedent set forth in Whelan and Altai establishes protection for the non-literal elements that make up the SSO, and, by extension, prevents the concurring opinion from making a distinction between implementing code and declaring code. Thomas voiced concern regarding the concurring opinion’s characterization of the value of the copyright as being in the programmers investment itself rather than in the creation of Java. He writes, “A Broadway musical script needs actors and singers to invest time learning and rehearsing it. But a theater cannot copy a script—the rights to which are held by a smaller theater—simply because it wants to entice actors to switch theaters and because copying the script is more efficient than requiring the actors to learn a new one.”84 Thomas then proceeded to apply fair use analysis and found against Google on all four factors. Thomas applied the new characterization of fair use, finding that the nature and substantiality of 84
the work, as well as the character of the use, had been in favor of Oracle. He stated that the declaring code is protected at a broader organizational level, and it is therefore similar at the corresponding lower levels of abstraction insofar as they were expressive of the broader idea of organizing code. He concluded his dissenting remarks by noting the various companies that have leveraged this precedent set by Google to negotiate lower licensing fees for Java systems.85
The position held by the Supreme Court in this case creates an important characterization of fair use as it relates to computer program copyright. It creates broadly reaching implications both through this precedent in isolation, and in the broader context of the cases examined earlier in this article. While the Court's majority opinion may appear to be sidestepping the issue of the copyright character of APIs, its copyright exemption and low threshold for meeting the standards of fair use in API copyright infringement essentially codifies a framework for trying these cases that is quite broad. Essentially, this ruling can be applied to all cases where an API is disputed, and it can then overcome any potential copyright claim by arguing fair use. So while the Court may not have made a direct ruling on the nature of API copyright, it created a functionally equivalent precedent by establishing how to overcome cases of copyright infringement dispositively by arguing fair use.. Furthermore, the scope of this fair use argument was made as a matter of law, stating that potential API copyright infringement can be overcome by low fair use standards and merger defenses. This precedent is functionally similar to explicitly ruling that APIs were almost entirely subject to the merger doctrine and section 102(b), and, by extension, the court heavily characterized the copyrightability of APIs more broadly 86
Worth noting in this case is the influence of the tech industry through amici briefs (briefings provided by technical experts to inform the court’s decision), which were cited as being heavily influential on the court’s decision. Many eminent software companies such as Microsoft, IBM, the Internet Association, and over 150 legal and software professionals and academics all urged the Court to grant the appeal in favor of Google. They cautioned that a decision favoring Oracle would be an incredibly restrictive precedent to set, which would
effectively harm the development of software innovation. Similar to the expansive reading of copyright and the consequent restrictive nature of software development in Whelan. The outcome of Google v. Oracle is heralded a major victory for fair use and innovation in the software industry 87
The Supreme Court’s ruling in Google v. Oracle can be interpreted as a corrective to the overall trajectory of restrictive expansion observable in Whelan and Altai of the non-literal elements. By extension, this case can also be understood in the context of the over-protection and under-protection that is cyclical to computer program copyright history. Google establishes the influence of the industry's countervailing pressure to grant more favorable rulings on the nature of the current regime of IP protection. The amici briefs’ influence on the majority opinion shows that the vested interest in an underprotective ruling would be a corrective to the expansion of Whelan and Altai, and, as such, the court allows many non-literal elements to be overcome through the fair use argument. 88
The ruling in Google v Oracle, as well as the asymmetries in the prior case rationale is also similarly underpinned in a misconstruction of abstraction as it relates to idea-expression dichotomies within copyright law in software. As mentioned above, all abstract elements exist in two ways, both as all-subsuming of the elements below them and uniquely expressive of the abstractions above them. An abstraction exists as something that extracts away a similar quality from a series of particular instances, such that it preserves that similar quality notwithstanding to anything particular to the objects.89 As such, abstractions can be thought of as both a class and
87 Google LLC v. Oracle America Inc. summary 593 US (2021) ; GOOGLE LLC v. ORACLE AMERICA, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No 18–956
Argued October 7, 2020 Decided April 5, 2021 ; Google LLC v. Oracle America, Inc. Leading Case : Harvard Law Review 141 S Ct 1183 (2021) ; With Google v Oracle Decided, Experts Assess Its Impact on Software and Beyond Berkeley Law Review (2020)
88 Samuelson Manifesto (1995) 105–115 ; Mark A Lemley, Peter S Menell, Robert P Merges, and Pamela Samuelson, Software and Internet Law (3d ed 2006) ; Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976 J H Reichman ; Google LLC v Oracle America Inc summary 593 US (2021) ; GOOGLE LLC v ORACLE AMERICA, INC CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No 18–956 Argued October 7, 2020 Decided April 5, 2021 ; Google LLC v Oracle America, Inc Leading Case : Harvard Law Review 141 S Ct 1183 (2021) ; With Google v. Oracle Decided, Experts Assess Its Impact on Software and Beyond Berkeley Law Review (2020).
89 Quine I W V O Quine Word and Object, Cambridge/MA 1960
object; as a class, they are referring to the unity of some characteristic that aligns several objects in such a way that does not contain the medium of objects in which this characteristic can be fixed, it is necessarily the unrealized plurality of ways to particularly express this abstract class. As an object, the abstract class can exist as a medium of fixing a further abstract class. In other words, as a class it holds the capacity to realize all further instantiation toward the end of some value, where each object contains that trait. As an object, the abstract entity instantiates a hierarchically superior abstraction in particular ways from a plurality of alternatives that exist within the plurality—or that hierarchical abstraction as such. An analog of this can be drawn in Selden, where Selden’s particular method of bookkeeping exists as a particular fixation of bookkeeping more broadly when referred to as an object. But as a class, Selden’s method exists as a reference to the plurality of ways that Selden’s method can be further fixed insofar as they still contain the abstract unifying quality of being “Selden’s Condensed Ledger'' fixed in various forms of print or words. More broadly, the immediately subordinate level of abstraction is always the medium of fixing the idea contained within the degree above it, by virtue of what abstractions are classes and objects. Therefore, where the Court decides to draw the line on what is ultimately the lowest and highest levels of abstraction is ultimately decisive in the overall outcome of all the cases observed thus far. This can be observed in both the majority and dissenting opinions. While Justice Breyer and the Court held that the SSO and the organizational elements of the API were largely functional, they were able to make that claim by implicitly operating under the assumption that the broader idea was Java’s particular SSO, noting QWERTY and car layouts as similar. However, as Justice Thomas notes, the SSO can also be seen as expressive, since it has arbitrarily derived nomenclature and methods of organizing hierarchically into packages and classes. Thomas is able to characterize the SSO as expressive because these organizational methods are discretionary insofar as they are implicitly held relative to the overall premise that the highest level of abstraction was “organizational systems.90” As is observable throughout each case provided in this article, the difference between the two opinions, even in this single case,
90 Samuelson Manifesto (1995) 105–115 ; Mark A Lemley, Peter S Menell, Robert P Merges, and Pamela Samuelson, Software and Internet Law (3d ed 2006) ; Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976 J H Reichman ; Google LLC v Oracle America Inc summary 593 US (2021) ; GOOGLE LLC v ORACLE AMERICA, INC CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No 18–956 Argued October 7, 2020 Decided April 5, 2021 ; Google LLC v. Oracle America, Inc. Leading Case : Harvard Law Review 141 S. Ct. 1183 (2021) ; With Google v Oracle Decided, Experts Assess Its Impact on Software and Beyond Berkeley Law Review (2020)
e lel he e he j ice decide lace he l i a e l ci f ab ac i ha ld g e i .91
Th gh he ca e , a c clical a e e e ge , de a i g he eed f a i gene i a ach ec i g he i ellec al e f c e g a . While he c e f Google . O acle i i i e f he fai e f c e g a , he a e c cle ca agai be b e ed, f he ill a i g he eed f ec i ha ld ade a el e e i ila i e ha cc ed i Whelan a d ha c ld ha e ha e ed if O acle had a fa able j dg e . Thi ca e al ha a a al g f he i d c e aili g e e ide f G gle h gh a ici b ief . The c e egi e f c igh ide a c ce al f a e k ha i kable he a lied c e . I e hibi he cla ical c clical i e de a ed b P fe Reich a , hich f he e abli he he eed f a e f a e k ha ld be de ec i e e ec i e. Th gh hi hi f ab ac c igh , i e ela i g h he c decla e le el f ab ac i a d he b e e i a ia i ha cc be ea h he e e ge. I c igh e , he c abili ela i all decide a ca e ba ed ha i ide ified a he highe le el idea c e e l e he edi i hich i i fi ed e e i el . Thi hi , i cl di g Google . O acle, he c cle ha ig al c ce al e , a d he ab ac i ble ha de lie he , all e e de a e he eed f a i gene i a ach ha ld ece a il deal i h hi ab ac i ble .92
91 Ibid
92 Sa el Ma ife (1995) 105 115 ; Ma k A Le le , Pe e S Me ell, R be P Me ge , a d Pa ela Sa el , S f a e a d I e e La (3d ed 2006) ; De ig P ec i i D e ic a d F eig C igh La : F he Be e Re i i f 1948 he C igh Ac f 1976 J H Reich a ; G gle LLC O acle A e ica I c a 593 US (2021) ; GOOGLE LLC ORACLE AMERICA, INC CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT N 18 956 A g ed Oc be 7, 2020 Decided A il 5, 2021 ; G gle LLC . O acle A e ica, I c. Leadi g Ca e : Ha a d La Re ie 141 S. C . 1183 (2021) ; Wi h G gle O acle Decided, E e A e I I ac S f a e a d Be d Be kele La Re ie (2020)
Bake . Selde , 101 U.S. 99 (1879)
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Pa ela Sa el . 1995. A a ife c ce i g he legal ec i f c e g a : h e i i g la fail ide ade a e ec i . I P ceedi g f he c fe e ce I ellec al e igh a d e ech l gie (K Righ '95). R. Olde b g Ve lag G bH, DEU, 105 115.
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L la f L A gele La Re ie 11-1-1987 Whela A cia e Whela A cia e Ja l De al Lab . Ja l De al Lab a : C igh P ec i f he S c e a d Se e ce f C e P g a S a e R. J e
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C e A c . I 'l Al ai - 982 F.2d 693 (2d Ci . 1992)
Ma k A. Le le , Pe e S. Me ell, R be P. Me ge , a d Pa ela Sa el , S f a e a d I e e La (3d ed. 2006).
De ig P ec i i D e ic a d F eig C igh La : F he Be e Re i i f 1948
he C igh Ac f 1976 J H Reich a
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Wi h G gle . O acle Decided, E e A e I I ac S f a e a d Be d /h :// .la .be kele .ed /a icle/g gle- - acle- f a e- e e-c -a al i /
Q i e I W.V.O. Q i e W d a d Objec , Ca b idge/MA 1960
Civil Society’s Role in Theft of Babies in Spain, Argentina, and
Hannah Kenneth | Stanford University
Fall 2022
In countries where human rights abuses have occurred, transitional justice is used in order to assist in the recovery from these abuses and help society adjust to new social and political structures. According to the International Center for Transitional Justice (ICTJ), transitional justice is the response of a society to major atrocities. The process takes on issues 1 that are harder to solve, such as when the government itself has committed the crimes.
In Spain, after Francisco Franco’s oppressive regime, the country began its transition to democracy In Argentina, after the “Dirty War,” a truth crimes commission—a common feature 2 of transitional justice—was necessary to expose the human rights abuses that had occurred. In 3 Chile, after the oppressive reign of General Pinochet, the country attempted a democratic restructuring assisted by transitional justice measures. One important aspect of transitional 4 justice is truth commissions, which help to reveal human rights violations that have occurred. The commission in Chile, “the Rettig Commission,” was set in an effort to document the human rights abuses that had occurred under Pinochet’s rule. These abuses included the disappearance of babies and children from 1973 to 1990. In the commission's final report, there were 3,428 official documented cases of disappearance. The commission made recommendations to adopt 5 human rights legislation and increase the judiciary’s role in punishing these crimes.6
Rebuilding trust and justice in an institution that is responsible for committing crimes against its citizens is pivotal. Rebuilding is pivotal for citizens and transitional justice assists in this process. Oftentimes, after a government has seen the rise and fall of totalitarian rulers, the impact of these rulers permeates a country long after the rule. Corrupt government officials still in power or a lack of societal awareness of crimes committed can be a barrier to creating more just governments. Transitional justice works to identify these barriers and work through them with other nongovernmental organizations.
1 “Vision and Mission | International Center for Transitional Justice.” n.d. Www.ictj.org. Accessed December 3, 2022. https://www.ictj.org/vision-mission.
2 Roache, Maggie. “Spain: A Case of ‘Post-Transitional Justice?",” 12 Apr. 2022, Stanford, Stanford University.
3 Erin Blakemore, “30,000 People Were 'Disappeared' in Argentina's Dirty War, These Women Never Stopped Looking,” History com, A&E Television Networks, March 7, 2019
4 “Truth Commission: Chile 90,” United States Institute of Peace, 2 Oct 2014, https://www usip org/publications/1990/05/truth-commission-chile-90
5 “Truth Commission: Chile 90”.
6 United States Institute of Peace.
In each of the instances explained in this paper, transitional justice was necessary because the government and people living within a given society were not able to achieve justice unassisted. In Spain, Argentina, and Chile, a large number of the population was unwilling or unequipped to handle past injustices, and the current governments were not giving these issues the attention or resources they deserved. However, despite these efforts, gaps can often appear in what justice is actualized. Additional injustices within countries are sometimes pushed into the background. Often, the focus is placed on what are considered to be the more dominant issues, which can deprive many victims of justice. In the cases of stolen or missing children in Spain, Argentina, and Chile, justice remains elusive for many of the victims. The theft of babies within these countries was among the countless human rights violations that took place under totalitarian rule as an act of control over their populations. It is a crime that has been grossly underrepresented and often overlooked by typical transitional justice measures. This paper serves to expose the theft of babies in Spain, Argentina, and Chile and to explain how transitional justice can transpire in a variety of ways. Within transitional justice, different crimes occur and often require that specific actions are taken for sufficient justice. I first outline the history of stolen children and babies and how this is a crime that has been largely ignored throughout history. I then explain the role of civil society organizations in overcoming past negligence, raising awareness, and aiding in legal and judicial reform. To do so, I use Spain as the most prominent example of such civil society efforts, and I establish these organizations and reforms as a useful framework to analyze similar public interventions in Argentina and Chile. Through this framework, I show that viewing civil society and transitional justice as a unified framework is beneficial, and often necessary, for achieving justice for victims of human rights abuses.
Historical records show hundreds of thousands of people have been killed or gone missing under dictatorial rule throughout the world. Although disappearances are not an 7 uncommon encounter under such leadership, the theft of children and babies is considered a
7 Roger Duthie, “Building Trust and Capacity: Civil Society and Transitional Justice ” International Center for Transitional Justice, Nov. 2009, https://www.ictj.org/sites/default/files/ICTJ-Development-CivilSociety-FullPaper-2009-English.pdf.
sinister crime due to the secretive and systematic way the crime is committed.
The theft of children began in Spain during the rule of Francisco Franco in the 1930s, but a larger human trafficking network may have continued for years after his death in 1975.8 In Argentina, up to 30,000 individuals disappeared during the civil war from 1976 to 1982. 9 And in Chile, between 1970 and 1999, it is estimated that 8,000 illegal adoptions took place in secret. Under the dictatorial rule of President Augusto Pinochet in Chile, thousands of people
10 were executed, detained, and disappeared, including children. However, these abuses have 11 long been unrecognized by the governments that replaced totalitarian rule, and the victims of these crimes have been left without justice.
Over the past decade, many victims subjected to crimes—including the theft of children—have begun coming forward and speaking out. An increase in the dialogue on these crimes has led to an increase in organizations working toward justice. Said 12 organizations—including All Stolen Children Are My Children in Spain, The Abuelas de Plaza de Mayo in Argentina, and Nos Buscamo in Chile—work specifically at filling in gaps left by the government concerning the theft of children and babies. Civil society organizations or non-governmental organizations comprise individuals and volunteers that work together on shared issues pertaining to unsolved injustices. These organizations are able to fill in gaps such as a lack of information, the unwillingness of governments to cooperate, and the ignorance of society at large of these issues. Although transitional justice measures are necessary, they do 13 not solve every injustice. These groups focus on bringing awareness to the issue of stolen children and restoring them to their biological families. This paper endeavors to look more closely at the gaps left by transitional justice and understand how specific civil society organizations in Spain, Argentina, and Chile fill these gaps.
8 Raphael Minder, “Spain's First Recognized 'Stolen Baby' Finds She Was Adopted Not Abducted,” The New York Times, The New York Times, July 12, 2019.
9 Blakemore “30,000”
10 Ernesto Londoño, “'Time We Can't Get Back': Stolen at Birth, Chilean Adoptees Uncover Their Past,” The New York Times, The New York Times, December 17, 2021
11 Londoño NYT
12 The Silence of Others, Netflix, 2018. https://www.netflix.com/title/81086605.
13 Duthie. ICTJ.
Due to the Spanish 1977 Amnesty Law, the dictatorial rule of Francisco Franco is often glossed over and unfamiliar to many Spaniards, but it has still left a lasting impression on Spain as a whole. Spain’s Amnesty Law forces all Franco-era crimes to be forgotten, making it taboo to discuss, teach, or pursue legal action for crimes committed during the dictatorship. After a military coup led by the Francoist right wing, a civil war broke out within the country, and Franco’s rule began not long after.14
Among these victims were many of the women who opposed Franco’s rule, and they were targeted in the stolen babies scheme. These babies were taken away from their mothers in the hope that they would grow up to support Franco’s rule. If given to families loyal to the regime, in theory, these babies would not be influenced by their mother ’s political views and would help continue the dictatorship.15
It is estimated that over 130,000 people disappeared or were killed over the course of Franco’s 30-year rule. It wasn't until 2005 that Spain’s judiciary accredited the start of the civil 16 war to Franco nationalists. The Amnesty Law of 1977 plays a critical role in the denial of 17 victim recognition and public awareness. This law, often referred to as “the pact of forgetting,” was originally created “in the name of national reconciliation during [Spain’s] transition to democracy.” In order to release prisoners of war after the death of Franco, the Spanish 18 government agreed to exempt all responsibility for crimes committed during this period. In essence, the law ensured that the events that occurred under the Franco regime would not be talked about or taught—all would be forgiven, and a blanket would be put over that period of Spain’s history. Today, 58 percent of Spaniards say that the Franco regime was both good and 19 bad, which demonstrates the power of the Amnesty law in silencing crimes of the past. Spain’s 20
14 Roache “Spain”
15 Netflix, The Silence of Others
16 Lucía Benavides, “First Stolen Baby Case from Franco Dictatorship Goes to Court in Spain,” NPR, NPR, 14 Aug. 2018, https://www.npr.org/2018/08/14/638629411/first-stolen-baby-case-from-franco-dictatorship-goes-to-court-in-spain.
17 Roache, “A Case of ‘Post-Transitional Justice”
18 Andrea Hepworth, “From Survivor to Fourth-Generation Memory: Literal and Discursive Sites of Memory in Post-Dictatorship Germany and Spain,” Journal of Contemporary History, vol 54, no 1, 2017, pp 139–162 , https://doi org/10 1177/0022009417694429
19 Netflix, The Silence of Others.
20 Roache, “A Case of ‘Post-Transitional Justice”.
main goal after the dictatorship was to rebuild and overcome the violence and tragedy that Francoism had inflicted, not to achieve justice for the survivors.
Much of the transitional justice measures put in place in Spain were in an effort to support democracy and move toward the future. The drawback of this was that the perpetrators of major human rights abuses would not receive punishment or stand trial because the Amnesty Law prevents the investigation of crimes that occurred during Franco’s rule. With the majority 21 of the stolen and missing babies cases occurring within the timeline of Franco’s rule, these crimes were included in “the forgetting.” In recent years, the validity and necessity of this law has been debated as the descendants of victims have come forward to seek justice for their loved ones. Though many of these disappearances can be excluded from the Amnesty Law because of their unresolved nature, the lack of societal awareness still prevents these crimes from being fully recognized.
Another obstacle in finding justice for the victims involved in the stolen babies scandal is the statute of limitations. A statute of limitations places limits on how long a crime can be legally tried after it has taken place, which, in most cases, is fifteen years. With most 22 Franco-era crimes taking place over fifty years ago, the time to press charges has long passed. Many individuals have filed lawsuits because they believe they were abducted as infants, but they are often denied even the right to trial by judges because of the statute of limitations. Former gynecologist Dr. Eduardo Vela is suspected of having a role in the abduction of children under the Franco regime but was not convicted due to the statute of limitations. Other cases like Dr. Vela’s have 23 discouraged many victims from pursuing legal action. However, many lawyers are pushing for a special statute of limitations to be adopted because of the gravity and scale of the crimes.24
The United Nations International Convention for the Protection of All Persons from Enforced Disappearances has expressed its concerns about acts that are considered
21 Roache “Spain”
22 CeAqua, Publicado por: “‘All Stolen Children Are My Children,’” "Todos Los Niños Robados Son Mis Niños", 29 Aug 2013, https://www ceaqua org/todos-los-ninos-robados-son-mis-ninos/
23 Minder, “Spain's First Recognized.”
24 Ibid.
“time-barred.” It suggests that “in cases of enforced disappearance where it is not known whether the disappeared person has died, the term of limitation does not have to begin to run until the disappearance has ceased, meaning until the location of the person is known since enforced disappearance is a continuous crime.” In the cases of stolen children, many do not 25 suspect the nefarious conduct that occurred in their infancy until they are much older. Additionally, due to the increase in advocacy and acknowledgment of these crimes, many mothers are just now coming forward with the allegation that their child was stolen. The delayed reckoning of these crimes makes it important for the statute of limitations to be altered and extended. In this case, the UN moves one step toward justice by suggesting that the legal system ensures that these types of crimes are still considered, regardless of the time elapsed.
Despite the international and institutional measures discussed in the previous section, many involved with the cases of missing or stolen children are not getting the answers and resources they deserve, and this is where civil society organizations come in. The stealing of children and babies occurred in Spain for over five decades, and perhaps longer with the continuation of human trafficking networks long after Franco’s death. Because there is not much official discourse on the cases of missing and stolen babies, much of what is known is told through the victims themselves.
In one example, Ines Madrigal found out that the gynecologist, Eduardo Vela, had given her to an infertile couple to raise as their own. Vela denies that he ever took babies, and he is now unable to stand trial because of his age at 85. However, Madrigal’s case is not an isolated 26 incident. It is understood that at the beginning of the dictatorship, women who were considered political dissidents of the Franco regime and those with leftist or communist ideals were targeted. By not allowing these women to have and raise their children, it would be assumed
that fewer people would oppose Franco, and his tyranny could continue. In other cases, homes
25 “International Convention for the Protection of All Persons from Enforced Disappearance,” Ohchr org, United Nations, 4 Nov 2021, https://www ohchr org/en/ohchr homepage
26 Jeannette Neumann, “Spain's 'Stolen Babies' Trial Explores a Franco Legacy,” The Wall Street Journal, Dow Jones & Company, 26 June 2018, https://www wsj com/articles/spains-stolen-babies-trial-explores-a-franco-legacy-1530023611
27 Minder, “Spain's First Recognized.”
for unwed pregnant women were targeted with the belief that these women would be unfit to be mothers. There is often a shared desire among dictators to rid a country of poverty, and the efforts to realize this desire were extreme.28
In the documentary The Silence of Others, Maria Mercedes Bueno, another survivor, recounts the story of having her child stolen from her. Bueno, who was eighteen at the time of her pregnancy, says that “it was a terrible time to be a single mother” and that it “was a terrible stigma” because of the desire to rid the country of people like her. She recounts how her 29 gynecologist hospitalized her and put her to sleep. Upon waking up the next morning she was informed that her baby was dead and all burial arrangements had already been taken care of. However, Bueno eventually found information online about the many other cases of stolen babies at the same hospital where she gave birth. She realized that “thousands of babies had been stolen all over Spain.” The common thread between many of these cases was a lack of 30 evidence that the babies had actually died. Upon further investigation, many mothers found that the grave or coffin where their child was buried was empty, or there was faulty or missing documentation on the child’s death.
It is likely that none of this would have been revealed without the work of civil society organizations. With the restrictions of the Amnesty Law and statute of limitations, many victims felt as though they had to take justice into their own hands. Spain’s amnesty law makes it impossible for them to prosecute within the country, but Argentina overrode its amnesty law, making it possible for the courts to hear Spanish cases on the international level. One notable 31 organization in Spain is All Stolen Children Are My Children (ASCAM). It was started by Luques Delgados as a campaign in 2012 to bring awareness to the fact that there was not just one case of a missing child, but a systematic theft of thousands of children. Delgados, who suspects her brother is among the missing, says, “I’m not just looking for my brother; I’m
28 Neumann, “‘Spain's 'Stolen Babies'”.
29 Netflix, The Silence of Others
30 Ibid
31 Sonya Dowsett and Emma Pinedo, “Spaniards Seek Justice in Argentina for Franco-Era Crimes,” Reuters, Thomson Reuters, 26 Sept 2013, https://www.reuters.com/article/us-spain-franco/spaniards-seek-justice-in-argentina-for-franco-era-crimes-idUSBRE 98P0SL20130926.
looking for the son of my neighbor, the niece of that lady who is there crying.” The more 32 mothers and families that began to question the disappearances and unexplained deaths of their children, the more motivation there was to pursue the issue further. ASCAMC works on two fronts: searching for personal biological relatives and raising awareness of the significance of the crimes—crimes that most Spaniards are still in the dark about. This organization, among 33 others, play a pivotal role in Spain’s transition from dictatorship under Franco, and have been “proactive political agents capable of co-constructing the outcome of Spain’s democratic settlement.”22
However, even with transitional justice measures, individuals and groups often make all the difference in filling the gaps. In Spain, many of those seeking justice have gone to Argentina, where there is no longer an amnesty law in effect, in the hopes that they may find justice. Spain sought out international support in 2005 to prosecute an Argentinean military official accused of crimes against humanity, and many hope the same law can apply again. The hope is that by attracting international attention and actively seeking justice, a larger investigation into Franco-era crimes will unfold. The documentary The Silence of Others follows this battle and emphasizes that it began with only a few individuals seeking justice. The 34 individuals spotlighted in the film filed a lawsuit in Argentina in an attempt to seek justice through legal means. This lawsuit has received international attention and puts more pressure on the Spanish government to take action regarding the human rights abuses that occurred under Franco’s rule.
Additionally, many of these grassroots organizations have prompted conversations about the specific measures that need to be taken in the cases of “enforced disappearances.” The 35 United Nations Human Rights Treaty Bodies released a set of recommendations in November of 2021 on this topic. Among the recommendations, the UN implores the legal system to ensure
disappearances be considered active until the end, regardless of the statute of limitations. It additionally suggests the “creation of a national DNA bank for victims,”—a method of tracking 36 Ibid. 35 United Nations Human Rights Treaty Bodies. 34 Netflix,
victims used heavily by civil society organizations—and to “allow for the dissemination of all documents” that will make the current documentation system more organized and sophisticated.
37
It is the hope of the UN that each case of stolen children would be organized and well-documented in an effort to make up for the lack of documentation in the past. Poor documentation has limited the searches of many individuals suspecting they are involved in the stolen babies scandal because of a lack of evidence on them to base their searches. DNA tracking and proper documentation would greatly increase the number of victims receiving justice when at least a quarter of current cases are dismissed because of this reason. Lastly, the 38 UN recommends the promotion and facilitation of civil society organizations, including their participation in the suggestions it lays out. These recommendations show the true impact of 39 civil society on an international scale. Without the efforts of these organizations, the UN may have never felt pressured to publish this document. Additionally, the international attention this put on the crimes committed starts a larger conversation of advocacy and acknowledgment to the victims of the stolen babies scandal.
One of the largest problems that persists today is the lack of trials taking place on the perpetrators involved in the stealing of babies in Spain. One example of this is Sister Maria, a former nun, suspected of involvement in hundreds of thefts. This story originally broke on national news and within the journalism community, but it has quickly become one of the most internationally publicized cases. A representative from the SOS Stolen Babies Association, a civil society organization working to make the population aware of the stolen babies problem, says that the publicity of Sister Maria’s involvement is “a very important step because it [is taking on the Church] - [Sister Maria] represents the Church, and that is sacred in Spain.” By shining a negative light on the Church, an institution important to the
40 Spanish people, there will be more publicity on the case. Despite this increase in recognition,
37 Ibid., 4-5.
38 Meritxell Mir, “Did a Spanish Nun Steal Thousands of Newborns?” The World from PRX, 3 Apr 2012, https://theworld org/stories/2012-04-03/did-spanish-nun-steal-thousands-newborns
39 United Nations Human Rights Treaty Bodies, 9.
40 Mir, “Did a Spanish Nun”.
it is unlikely that Sister Maria will be put in jail because of her age and the hesitancy of the government to prosecute a civil authority—as this will result in much larger expenses that the government is reluctant to pay. This case shows that, although it seems the right steps are 41 being taken toward justice, the government in Spain still leaves a lot to be desired in terms of actual litigation. Reluctance by the government shows that the call for civil society organizations is even more necessary because these organizations seek justice for victims that cannot rely on the state. Families receive more personal and timely justice through civil society, something that the government is not providing.
Between 1976 and 1982, Argentina experienced a dictatorial period starting with what is often referred to as the “Dirty War.” The Dirty War saw Argentina’s military dictatorship turn 42 against its own citizens in a “process of national reorganization,” and it “ushered in a period of state-sponsored torture and terrorism.” During this period, it is estimated that over 30,000 43 people disappeared, including many children . Oftentimes, pregnant women that were labeled 44 as political dissidents or aligned with leftist ideals were kept alive just long enough to give birth. The children seized during this process were given to other families, sold on the black market, or abandoned at orphanages. Now, years later, these children and their mothers are 45 looking for answers. Many of the mothers began protesting in the late 1970s through civil society organizations, the most notable of which is the Abuelas de Plaza de Mayo.
The Abuelas de Plaza de Mayo works tirelessly to reunite families and locate their missing children. In its self-proclaimed history, the organization claims that “from the moment that our children disappeared, we visited every court, office, orphanage, daycare center, and so on, to locate them.” Additionally, they have reached out to international organizations such as 46
41 Ibid.
42 Matthew Wills, “The Stolen Children of Argentina - Jstor Daily,” Daily JSTOR, 22 Aug. 2018, https://daily jstor org/stolen-children-of-argentina/
43 Blakemore, “30,000 People”, supra note 4
44 Ibid
45 Ibid
46 “History of Abuelas De Plaza De Mayo,” History | Abuelas De Plaza De Mayo, https://abuelas.org.ar/idiomas/english/history.htm.
the UN and the United States, with no positive results. There is almost no support for civil society organizations due to a multitude of obstacles such as a lack of public awareness and the necessary resources to conduct trials, like funding and documentation. This makes their role in justice more important: if the government is not seeking justice for the victims, who will? Organizations like the Abuelas de Plaza de Mayo began their efforts with protests and public advocacy in 1977, and they have since moved on to documentation and investigations in local and federal courts.
The Abuelas de Plaza de Mayo purport that through their efforts, they have made a real difference on the legal level. They have participated in the International Convention on the Rights of the Child and pushed for the “Argentine” clauses, articles 7, 8, and 11, which refer to the right to identity . Right to identity is one of the main motivations of civil society 47 organizations in Argentina, as “the disappeared children were deprived of their identity, their religion, and their right to live with their families, in other words, all of the rights that are nationally and internationally recognized as their universal human rights.” The National 48 Executive Power of the Argentine government has also created CoNaDi, the National Committee for the Right to Identity, which allows the Ministry of Justice and Human Rights “to foster the search for daughters and sons of disappeared persons, with the aim of finding them and restoring their identity.” CoNaDi assists identifying missing children through 49 documentation investigations and blood analyses conducted through the National Bank of Genetic Data and has the power to do so without legal intervention. Through the efforts of the 50 Abuelas de Plaza de Mayo, at least 120 children have been located, and they continue their endeavor to spread awareness and locate more of the missing children affected by the Dirty War abductions.
In addition to the national and international laws created from the efforts of civil society organizations in Argentina, some legal proceedings have been allowed to occur The turn of the century has seen an increase in trials, with at least eighteen individuals on trial for abduction
48 Ibid 47 Ibid
49 “Help Us Find You,” Help Us Find You | Ministerio De Relaciones Exteriores, Comercio Internacional y Culto, https://www.cancilleria.gob.ar/en/find-you.
50 History of Abuelas De Plaza De Mayo.
and crimes against humanity in 2020. In 2004, Jorge Bergés and Miguel Etchecolatz were the 51 first perpetrators to be convicted of baby theft during military rule in the 1970s. Etchecolatz was later sentenced to life in prison on the charge of illegal detention and crimes against humanity.52 Despite these strides toward justice, Etchecolatz will be serving his time on house arrest due to poor health and old age. One of the largest issues in pursuing legal action for the crimes concerning stolen or missing children is that many of the perpetrators are no longer alive or too old to stand trial. This is the same as in the case against Sister Maria in Spain. 53
Cases of stolen and missing children in Chile were not realized until the 21st century when many individuals began sharing their stories online and discovered their cases were not isolated but part of a larger system. Tyler Graf was one of the individuals who decided to investigate further the specifics of his adoption. Graf was adopted as an infant and raised in 54 the United States but was left without answers during his initial search for his biological family. It wasn't until ten years later that, through the humanitarian non-profit Hijos de Madres del Silencio, he found answers: Graf was one of the 20,000 other children that had been taken from their mothers during Pinochet's rule. Stolen primarily from poverty-stricken areas, babies were taken with the help of social workers, health professionals, judges, and adoption brokers. With so many involved, the scale of the trafficking activity that occurred during this period is evident. Much like in the cases of Spain and Argentina, this theft of babies is a less visible crime, and justice has taken years to materialize. Boris Barrera, a member of Congress who led a legislative investigation in 2018, mentions that “the history of human rights violations during the dictatorship is known: the torture, political prisoners, repression, but [the stealing of children] has been largely invisible.” Although Pinochet has 55 not been in power for over thirty years, information about many of the cases of stolen babies
51 “Argentina Dirty War: Torture and Baby Theft Trial under Way,” BBC News, BBC, 28 Oct. 2020, https://www.bbc.com/news/world-latin-america-54718440.
52 “The Prosecutor v. Miguel Osvaldo Etchecolatz,” ICD - Etchecolatz - Asser Institute , https://www internationalcrimesdatabase org/Case/1097/Etchecolatz/
53 Mir, “Did a Spanish Nun ”
54 “Connecting Roots,” Connecting Roots, https://connecting-roots com/#:~:text=Connecting%20Roots%20is%20a%20U S ,born%20adoptees%20and%20thei r%20families.
55 Londoño, “'Time We Can't’.”
is just now coming to light.
Chile held its first democratic election in 1989 after being under the rule of Pinochet for 17 years. This election started a transition to democracy and began the process of assessing crimes that had occurred under the dictatorship. Similar to the case in Spain, there was some pushback to creating trials or truth commissions to deal with the perpetrators of Pinochet's rule because of the desire to move forward and forget the past. Many survivors urged that remembering was more imperative for the future of the country than moving on and sought to record the abuses and seek justice. It wasn't until 1998 that Pinochet faced his first criminal indictment. However, many citizens felt that they still did not receive proper justice.
Lack of proper justice for individual victims makes the role of civil society organizations that much more critical in the search for justice. The aforementioned group, Hijos y Madres del Silencio, was created in an attempt to help separated family members reunite and support victims. The group has found that many of the children born under Pinochet’s rule were illegally adopted in more than 18 countries around the world, including in the US. With the 57 efforts of this organization, a global human trafficking scheme has been exposed. When the cases of stolen and missing children first came to light in 2014, it was estimated that thousands of Chileans had been taken from their parents through illegal adoptions. Today, the scheme is still being uncovered, and small steps are being taken toward 58 justice. Another organization, Nos Buscamo, has created a database with over 7,000 cases of children and their families who have registered their stories. This process began when 59 Constanza del Rio sought to collect information about her biological relations. Nos Buscamo currently has no state funds and works through volunteer support. They lead investigations by compiling evidence and facts, as well as through the use of DNA databases. Since 2014, they have reunited over 130 victims of the illegal adoptions that took place in Chile. Much like in Argentina and Spain, the cases of missing children have gone unnoticed.
56 “Truth Commission: Chile 90,”
57 “Hijos y Madres Del Silencio,” Idealist, https://www idealist org/en/nonprofit/344cb9f6416c41cb9e73c2a151f3e080-hijos-y-madres-del-silencio-santiago
58 Londoño, “'Time We Can't’.”
59 “El Abrazo Del Reencuentro,” Nos Buscamos, https://nosbuscamos.org/.
DNA databases were not the only way civil society organizations have helped victims in pursuing justice. Another significant contribution of these organizations is the creation of systematic documentation and archives. These archives serve to show “how the systematic practice of repression operated, as well as the extent and magnitude of the human rights violations committed.” In Chile, organizations such as the Vicaría de la Solidaridad, the 60 Chilean Commission of Human Rights, and the Committee for the Defense and the Rights of the People (CODEPU) worked tirelessly, even during the dictatorship, to create these archives and raise awareness of crimes being committed. At the time, these archives were created without 61 advanced methodology which were not as helpful to all victims. Despite this, these archives can serve generations in the future and help punish those who committed crimes in the past. Without these organizations, many Chileans seeking answers today may not have had the resources available to them to start the process of finding the truth. At the beginning of Chile’s search for the truth, there was significant pushback from those who were still loyal to Pinochet. In societies that have seen a democratic transition from dictatorial rule, it can often be difficult for justice to prevail. Much of the governmental structures and institutions are still being controlled by supporters of the past regime. This was the same in the case of Spain. After Franco died, many of his supporters still held important positions that prevented past crimes from being prosecuted. Fortunately, in Chile, the truth commission provided the necessary publicity for the state to make changes. In 1992, the National Corporation for Reparation and Reconciliation was enacted, which provides financial support to the victims and the continuation of ongoing investigations. The largest gap that 62 remains in Chile today is that there are still so many children missing.
The International Center for Transitional Justice (ICTJ) has commented on the role that civil society organizations have played in the development of nations after periods of instability
In a report put out by the ICTJ, Building Trust and Capacity: Civil Society and Transitional Justice from a Development Perspective, the role of civil society is recommended as “one
60 Anita Ferrara, “Archives and Transitional Justice in Chile: A Crucial Relationship - Human Rights Review,” SpringerLink, Springer Netherlands, 23 July 2021, https://link springer com/article/10 1007/s12142-021-00626-0
61 Ferrara, “Archives.”
62 United States Institute of Peace.
avenue through which support can and should be provided.” Most academics agree with this 63 claim. David Backer, who was published in the Journal of Human Rights, has researched the relationship between the role of civil society and transitional justice. In his article “Civil society and transitional justice: possibilities, patterns, and prospects,” he explains the six critical ways that these organizations play a pivotal role in justice: data collection and monitoring; representation and advocacy; collaboration, facilitation, and consultation; service delivery and intervention; acknowledgment and compensation; parallel or substitute authority; and research and education. Each of these aspects is present in the civil society organizations that are assisting with the stolen babies cases in Spain, Argentina, and Chile. Some of the most prominent roles in the stolen babies cases include data collection and monitoring; representation and advocacy; collaboration, facilitation, and consultation; and acknowledgment and compensation.64
In cases of disappeared persons, locating individuals is often the largest obstacle. In Chile, Hijos y Madres del Silencio has connected over 250 families through DNA databases. They do this using MyHeritage, a company that supplies DNA kits to Hijos y Madres del Silencio for families and adoptees who believe they may be connected to the stolen babies cases.
65
In Argentina, the efforts of Abuelos de Plaza de Mayo in conjunction with the geneticist
Mary-Claire King have led to the creation of a national genetic database and the discovery of over 128 missing children. These organizations create DNA databases and archives when states 66 will not, and this is actively aiding families in the search for their loved ones.
Perhaps one of the most pivotal roles of civil society is advocacy. In the 1970s in Argentina, the mothers of stolen children began protesting against the junta, those who had taken control during the Dirty War These women were subject to violence and abuse, but through their protests were successful in turning public opinion against the junta and increasing awareness of the hundreds of children that had been stolen. Similar trends can be observed in 67 the cases of Spain and Chile. Often it took the action of civil society to bring attention to the
63 Duthie ICTJ
64 Ibid , 12
65 Londoño, “'Time We Can't’ ”
66 Blakemore, “30,000 People.”
67 Ibid.
abuses that had occurred. By advocating for the stolen children, many more victims also came forward or realized that they may be a victim themselves.
Among those helping victims find their missing family members, civil society organizations may provide additional help in seeking legal action, which can be necessary when it cannot be pursued through traditional means. For example, in Spain, there are still many barriers preventing legal action from occurring. In the case against Dr. Vela, the gynecologist suspected of being involved in the stolen babies cases, independent lawyers will often represent the women involved in these investigations. Even if the government is uncooperative, individuals are working toward justice for the victims. Another example of 68 consultation includes helping these victims testify, either formally or informally in court.69
Although civil society organizations are largely non-profit and therefore cannot directly offer compensation to the victims, their efforts sometimes lead to state-funded reparations. In Chile, from the Rettig Commission, families mentioned in the report are receiving approximately sixteen million USD a year. However, it is important to note that most families 70 are unfulfilled by compensation alone, and they often voice that they prefer truth and justice over any amount of money . Therefore, the importance of taking steps toward more productive 71 justice measures, whether it be through DNA databases, documentation, or advocacy, becomes even more important, as these often provide more answers for the victims.
Through the case studies of Spain, Argentina, and Chile, the role of civil society is prominent. During a time of transitional justice, some crimes go unnoticed and the victims of these crimes are not given proper justice. The case of stolen or missing babies around the world is a prime example of the types of crimes that are often left unsolved. Throughout the past, civil society organizations have taken it upon themselves to fill the gap in transitioning
68 Benavides NPR
69 David Backer, “Civil Society and Transitional Justice: Possibilities, Patterns and Prospects,” Taylor & Francis, Sept 2003, https://www tandfonline com/doi/abs/10 1080/1475483032000132999
70 United States Institute of Peace.
71 Netflix, The Silence of Others.
nations. These organizations, like the Abuelas de Plaza de Mayo in Argentina, which began their work in 1977 to raise awareness and inform the public of the crimes being committed during the civil war, are essential for many victims in finding justice. Another important contribution of these groups is that they work to create structures such as DNA databases and archives that will assist victims in connecting with their family members. By creating a wealth of resources for the victims in the event they want to pursue legal action against past perpetrators, civil society organizations often do more than the governments in countries where these crimes occurred.
Despite the efforts of civil society, there are still obstacles that limit their ability to reach more victims and deliver justice swiftly. Barriers such as a statute of limitations or amnesty laws often restrict justice in a legal or national context. Many victims are told that their cases will not see trial or that their perpetrators cannot be convicted because too much time has elapsed. However, some of these limitations are now receiving international attention. In many cases, these restrictions were lifted or amended due to the nature of the crimes, but the long-lasting effects of these structures cause other issues for those seeking justice. In Spain, much of the population still does want to unearth the past because of the influence of the Amnesty Law, which limits the public's awareness of the crimes. It is a small section of the population seeking justice, and without public pressure to prosecute past crimes, they are often disregarded. With many barriers these individuals are having to find new methods to achieve justice. These roadblocks make it harder to take legal action against perpetrators because of time limitations and a lack of awareness because many of these crimes are only now being discovered and discussed. The cases of stolen or missing children in Spain, Argentina, and Chile show the importance of how transitional justice and civil society work together to achieve justice at all levels. Through data collection, advocacy, and working to bring justice to victims, civil society organizations can fill some of the gaps in the transitional justice process. Transitional justice cannot always implement the necessary tools these victims need to find justice and can often be limited by laws and broader societal opinions.
Fortunately, the role of civil society organizations has been consequential in pushing back against these barriers. Through observing the theft of babies in Spain, Argentina, and Chile, it is
evident that civil society organizations play a vital and often symbiotic role in the transitional justice process. It is important to understand this relationship because it allows for a more comprehensive perception of how these issues are being solved. The theft of babies occurs all around the world, and Spain, Argentina, and Chile serve as prime examples of how justice can be obtained in a variety of different ways. These cases show the power of individuals working together for justice, and their important role in the transitional justice process as a whole. Many civil society movements begin with one individual, and these individuals effectively set into motion a chain of legal action on a national or international scale. Some countries have compensated victims or prosecuted the offenders involved through the transitional justice process, but there are often still gaps. These gaps can appear when crimes are not realized, perpetrators do not serve time, or victims do not receive appropriate reparations and compensation. Therefore, civil society organizations, in their role of filling these gaps, prove to be an important asset to justice.
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“Argentina Dirty War: Torture and Baby Theft Trial under Way.” BBC News, BBC, 28 Oct. 2020, https://www.bbc.com/news/world-latin-america-54718440.
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https://www.tandfonline.com/doi/abs/10.1080/1475483032000132999.
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https://www.npr.org/2018/08/14/638629411/first-stolen-baby-case-from-franco-dictators h ip-goes-to-court-in-spain.
Blakemore, Erin. “30,000 People Were 'Disappeared' in Argentina's Dirty War These Women Never Stopped Looking.” History.com, A&E Television Networks, 7 Mar. 2019,
https://www.history.com/news/mothers-plaza-de-mayo-disappeared-children-dirty-war-a r gentina.
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The 1982 Falklands War (La Guerra de las Malvinas), fought between the United Kingdom (UK) and Argentina over British-dependent territories in the South Atlantic Ocean, remains one of the largest air-sea international armed conflicts since the end of the Second World War It is also a conflict mired in controversy given the disputed colonial legacy of British claims in the region. In early April of 1982, Argentine forces invaded and established control over the Falkland Islands (Las Islas Malvinas) and South Georgia/South Sandwich Islands. A Royal Navy task force was soon dispatched from the UK to retake the lost territories. While the UK was ultimately the clear victor of the conflict, with Argentine General Mario Menéndex surrendering to British Major General Jeremy Moore in Stanley—the capital city of the Falkland Islands—on June 14, 1982, there is still an ongoing dispute over the sovereignty of these South Atlantic territories.1 There also have been multiple contentions over the fact that the UK submarine HMS Conqueror’s sank Argentina’s light cruiser ARA General Belgrano in early May, which took 323 of the 649 Argentine lives lost during the war and violated international law 2
This paper will examine international law's codified, customary, and philosophical criteria relevant to the Falklands War. More specifically, I will evaluate the justifications for the UK’s recourse to the use of force, as well as the relevant implications from the ARA General Belgrano controversy. This is to say that my paper first examines the legality of the war and British presence in the region before considering the sinking of the ARA General Belgrano .
Uncertainties concerning the ownership of the British Overseas Territories in the South Atlantic make the UK’s use of force legally ambiguous; however, an argument justifying the use of force could be made based on principles of customary international law and the local political community’s alignment with the UK. The HMS Conqueror’s targeting of the ARA General Belgrano did not violate international humanitarian law and met jus ad bellum (the right to war) tit-for-tat and means-ends definitions of proportionality. Despite this, the sinking and the broader context surrounding it was inconsistent with the Principles of Last Resort and Right Intention.
The indigenous Fuegians of Patagonia, who were later decimated by diseases introduced by colonization, may have been the first to discover the Falkland Islands; however, the first
1 Lawrence Freedman, Britain and the Falklands War (London: Basil Blackwell, 1988)
2 “Cristina: “Lo del Belgrano fue un crimen de guerra”,” El Tribuno (2012), https://www.eltribuno.com/salta/nota/2012-5-2-21-40-0-cristina-lo-del-belgrano-fue-un-crimen-de-guerra; “UK sued over Belgrano sinking,” BBC News (2000), http://news bbc co uk/2/hi/uk news/812146 stm
recorded sightings of the islands by European explorers occurred during the 16th and 17th centuries. The first undisputed landing on the Falklands was conducted by an English expedition in 1690, with the islands remaining uninhabited until the establishment of settlements by France and Britain in the 1760s. French claims were soon surrendered to Spain, with an armed dispute occurring between Spanish and British Forces in the 1770s. Despite the fact that London never renounced its claim to the territory, the British settlement was abandoned in 1774 due to competing economic interests, with Spain abandoning its Falklands settlements in 1811 as its rule in Latin America came to a close. The United Provinces of the Río de la Plata—a predecessor state to Argentina from 1810 to 1831—then occupied the Falklands, and this was followed by an official claim of sovereignty over the islands in 1829. The UK and the United States engaged in consistent diplomatic protest over the United Provinces’ sovereignty claims, primarily due to the latter ’s appointment of governing officials for the islands and a fishing rights dispute.
Two naval vessels arrived at the islands in January 1833 to reassert UK claims over the Falkland Islands; more specifically, the Royal Navy requested that the Argentine flag be replaced with a British flag. Ultimately, the United Provinces gave into the UK’s demand due to the former ’s demographic composition—many of them were British mercenaries—and numerical inferiority relative to the Royal Navy. After the United Province’s governing presence was expelled, the Falkland islands were formally established as a British Overseas Territory in 1840, with the UK retaining control of the islands until the spring of 1982.3
British control over the Falkland Islands has been a continuous source of tension in Argentina-UK relations. Argentina’s legal argument is perhaps best summarized in Lawrence Freedman’s book Britain and the Falklands War:
“Argentina claims that Spain never renounced her rights over the islands and that Spain’s territorial jurisdiction of the area, including the Malvinas, was passed on to the newly independent state of Argentina in 1816. Britain did not raise the issue when conferring recognition on Argentina in 1825 nor had it complained earlier when Argentina acted as if it owned the islands. There was no British presence between 1774 and 1829, while the periods during which Argentine raised no
objection to British claims lasted only 20 and 30 years respectively. Thus the British occupation of 1833 was illegal and remains so.”4
By and large, bilateral treaties on sovereignty are recognized as the ruling international legal authority, whether it be for territorial disputes or other matters of state conduct.5 In the absence of such agreements and continuing sovereignty disputes, as was and continues to be the case with the Falkland Islands, questions of international law and sovereignty should be determined by flexible customary principles developed in conversation with the mainstream scholarly works of philosophers and lawyers.6 The UK’s case for legitimate sovereignty over the Falkland Islands relies on the doctrine of prescription, which allows rightful ownership to emerge from the continual possession of the territory in question if the original sovereign actor does not protest or contest.7 However, the establishment of the doctrine of prescription as the central principle of sovereignty would be inconsistent with international law’s preference for peace over justice.8 After all, such a precedent would reward states engaging in disputed, armed occupations pursuant to the long-term acquisition of largely unoccupied land. This could be a slippery slope, eventually encouraging acts of aggression to retake disputed, heavily-occupied territory. However, a failure to recognize the doctrine's validity on a case-by-case basis would represent a sharp disconnect from long-standing political realities in disputed territories, thereby resulting in a proliferation of interstate conflicts inconsistent with international peace.9
4 Freedman, Britain and the Falklands War, 19
5 Brian Taylor Sumner, “Territorial Disputes at the International Court of Justice,” Duke Law Journal 53 (2003): 1779, 1781
6 “Nevertheless, claims based on treaty law are particularly persuasive at the ICJ [International Court of Justice] because Article 38 of the ICJ Statute obligates the court to consider treaties Moreover, through treaties parties agree to relinquish their historical or other claims to the property subject to the treaty. Thus, it is no surprise that treaties (unless defective) are binding on the parties that have ratified them ” Sumner, “Territorial Disputes at the International Court of Justice,” 1782.
7 “The doctrine of prescription, upon which the British claim rests, essentially allows for a right of ownership to emerge out of continual possession.” Freedman, Britain and the Falklands War, 20. There were two periods of 20 and 30 years in which Argentina did not object to British claims
8 “The Purposes of the United Nations are: To maintain international peace and security, and to that end ” U N Charter art 1 It should also be noted, relative to considerations of justice or peace, that overinclusive standards are generally harder to enforce
9 “It would be extremely dangerous for international order if such a doctrine [of prescription] were now allowed to determine sovereignty over disputed territories on a regular basis On the other hand, international order would not benefit if challenges to long-established occupation of territories were regularly mounted on the basis of the dubious methods of acquisition in previous centuries ” Freedman, Britain and the Falklands War, 20
Compromising between these two extremes can promote the international order ’s preference for peace. The doctrine of prescription should be accepted as a valid justification for claims of sovereignty when it is aligned with the self-determined nature of local political communities.10 In the case of the Falkland Islands, the overwhelming preference of the local population was—and still is, as of the 2013 Falkland Islands Sovereignty Referendum11—to upkeep the status quo of dependency on the UK.12 Ownership of the land follows the disposition of the local population because territorial integrity is derived from the common life of individuals.13 As defined by philosopher Michael Walzer, a leading political theorist of contemporary just war theory, common life is composed of shared experiences and cooperative activities collectively representative of individual rights.14 A shared common life provides moral standing for communities to protect against external encroachment on their shared autonomy.15 Therefore, it can be said that the political reality of the Falkland Islands—defined by the UK’s long-term control and unique local identity—formed a new common life and, by extension, an independent and self-determining political community Regardless of whether the UK’s 1833 reassertion of sovereignty was in compliance with the international norms of the time,16 the sanctity of the inhabitants’ collective rights to self-determination could be used to prioritize British claims of sovereignty above competing arguments.17 However, given the lack of a permanent native population and a developed political community outside of the Falkland
10 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2015), 53-58 The concept for political communities is derived from political philosophy, with large implications for just war doctrine military ethics on the morality of war. This paper uses the terms just war theory, just war doctrine, and just war tradition interchangeably
11 Alasdair Soussi, “How are the UK’s territories dealing with the coronavirus?” Al Jazeera, 2020. The 2013 referendum saw a 92% turnout with three votes against remaining as a British territory
12 “freezing the status quo… was obviously the local preference.” Freedman, Britain and the Falklands War, 27.
13 “territorial integrity and political sovereignty belong to states, but they derive ultimately from the rights of individuals, and from them they take their force.” Walzer, Just and Unjust Wars, 53.
14 “Over a long period of time, shared experiences and cooperative activity of many different kinds shape common life… the right of a nation or people not to be invaded derives from the common life its members have made on their peace of land ” Walzer, Just and Unjust Wars, 54-55 Walzer continues this discussion by using the case study of provinces on the Franco-German border, emphasizing that “the land follows the people ”
15 Walzer, Just and Unjust Wars, 54
16 Freedman, Britain and the Falklands War, 20 Britain expelled an existing Argentine presence on the Falkland Islands in 1833, sending settlers and officially establishing it as a crown colony
17 “When this change [of the majority of the transferred population ceasing to desire reunion] has taken place, the moral effect of the unjust transfer must be regarded as obliterate rated; so that any attempt to recover the transferred territory becomes itself an aggression ” Henry Sidgwick, The Elements of Politics (London, 1891), 287
Islands, such an argument cannot be extended to fighting over the British Overseas Territory of South Georgia and the South Sandwich Islands.18
While an argument centered around common life supports the UK’s claims over the Falkland Islands, the identity of the lawful owner is still ambiguous due to the absence of treaty law or an official ruling by an international institution. Such ambiguity affects efforts by either state to invoke codified laws in the recourse to the use of force, particularly those enshrined in the United Nations (UN) Charter. Article 51 of the UN Charter allows states to engage in self-defense if an armed attack is taken against them.19 However, it is difficult for either the UK or Argentina to clearly invoke Article 51, as its justification of the use of force would be predicated upon the clarity of the legal ownership of the seized territories in question. Such ambiguities also exist in Article 2(4) of the UN Charter, which prohibits the threat or use of force “against the territorial integrity or political independence of a state.”20 Both the UK and Argentina could claim that the other party—in its respective use of force or armed occupation of the islands—was in violation of their territorial integrity, which could therefore be understood as an armed attack. But again, the central question of legitimate legal authority over the Falkland Islands is unclear, and this article analyzes well-established norms—rather than strictly legal factors—relative to the determination of sovereignty. The other avenue in the UN Charter for justifying the use of force—Article 42, which involves authorization by the United Security Security Council—was not invoked.21 Without legal clarifications on the ownership of overseas territories in the South Atlantic, no conclusions on the permissibility of the use of force can be definitively reached. The lack of definitive authority over the ownership of British territories in the South Atlantic has resulted in legal ambiguity surrounding the UK's use of force. It becomes
18 “South Georgia & the South Sandwich Islands,” The Government of South Georgia & the South Sandwich Islands, https://www gov gs/information/about-sgssi/
19 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and Security.” U.N. Charter art. 51.
20 “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations ” U N Charter art 2(4)
21 “Should the Security Council consider that measures provided for in Article 41 [actions authorized by the Security Council which do not involve the use of armed force] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain international peace and security Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations ” U N Charter art 42 While Security Council Resolution 502 which passed on April 3rd, 1982 under a relatively large base of support from members of the United Nations determined that there had been a breach of the pace, it called on both sides to reach a diplomatic solution
necessary, therefore, to invoke moral and ethical criteria for analysis of the fundamental conditions justifying the recourse to the use of force.
Another important consideration must be made to examine the full scope of the conflict: the distinction between the right to war (jus ad bellum) and rights in war (jus in bello).22 In other words, it is the common practice of states to separate jus ad bellum and jus in bello considerations, notwithstanding some of the demonstrated sentiments of the American public23 and revisionist works examining just war theory 24 Many legal scholars make a temporal distinction between jus ad bellum and jus in bello: the former applies to the events leading into war, and the latter applies to events occurring during a war.25 However, an alternate distinction frames jus ad bellum as relative to strategic considerations at the intersection of political and military affairs—these considerations are relevant during times of war and peace—and jus in bello as tactical considerations unique to wartime.26
The classical distinction between these separate criteria is critical when considering what is arguably the Falkland War ’s most controversial incident: the May 2 sinking of the ARA General Belgrano by the Royal Navy submarine HMS Conqueror 27 After Margaret Thatcher authorized the attack, the HMS Conqueror fired three conventionally-armed torpedoes, sinking the ARA General Belgrano outside the British Navy’s established exclusion zone. While military priorities guided the British decision to sink the ARA General Belgrano, it was clearly foreseeable that its aftermath would carry significant political and military consequences.28 The
22 Bernard Oberson and François Bugnion, “International Humanitarian Law: Answers to Your Questions,” International Committee of the Red Cross (Comité International de la Croix-Rouge), 1998
23 Scott D. Sagan and Benjamin A. Valentino, “Just War and Unjust Soldiers: American Public Opinion on the Moral Equality of Combatants,” Ethics & International Affairs 33 4 (2019), 424-432 Sagan and Valentino’s study found that the public’s moral reasoning is generally more consistent with the work of revisionist scholars (who believe that soldiers fighting for unjust causes bear some responsibility)
24 Jeff McMahan, “Rethinking the ‘Just War,’ Part 1,” The New York Times (2012), https://archive nytimes com/opinionator blogs nytimes com/2012/11/11/rethinking-the-just-war-part-1/
25 Michael Bothe, “Terrorism and the Legality of Pre-emptive Force,” European Journal of International Law 14.2 (2003), 227-240
26 Judith Gardam, Necessity, Proportionality, and the Use of Force by States (Cambridge: Cambridge University Press, 2004); Christopher Greenwood, “International Law and the Conduct of Military Operations: Stocktaking at the Start of a New Millenium,” International Law Studies 75 1 (2000): 17; Martin Dunn, “Levels of War: Just a Set of Labels?” Research and Analysis: Newsletter of the Directorate of Army Research and Analysis (1996), no 10 It is the view of this article that tactical decisions that result in political consequences are not necessarily subject to jus ad bellum criteria because they are not made in an inherently political context
27 Robert Farley, “Why Everyone Is So Obsessed with the Falklands War,” The National Interest, 2018
28 “While the sinking of the Belgrano was mounted for military reasons, the consequences were as much political as military ” Freedman, Britain and the Falklands War, 54
foreseeable strategic nature of the decision to strike therefore dictates that both jus ad bellum and jus in bello criteria were immediately relevant to political leaders in London. Because the codified and customary legal components of jus in bello are relevant to the protection of noncombatants and those not actively engaged in fighting,29 it is of limited applicability to the sinking given the negligible presence of civilians.30 This argument is set forth by Kieran Tinkler—a legal officer with the Royal Air Force and an Associate Director at the United States (US) Naval War College’s Stockton Center for International Law—in his 2017 piece with the European Journal of International Law. 31 Tinkler ’s thoughtful analysis continues with a legal examination of jus ad bellum criteria, specifically in regard to the Principle of Proportionality, which he defines as the right of “an injured State to do what is reasonably necessary to deal with the threat it is facing.”32 Utilizing this definition—which can be defined as “tit for tat” proportionality33—Tinkler argues that the sinking was legally permissible; while appearing to retreat away from the exclusion zone, revelations from British and Argentine servicemembers highlight the fact that the ARA General Belgrano was ordered to temporarily maneuver away from its original position and attack the British Task Force, thereby making it an imminent military threat.34
The line between legal and just war conceptions of the jus ad bellum Principle of Proportionality is far from defined given the differences between states and their respective interpretations of self-imposed obligations.35 However, the existence of different definitions for
29 Oberson, Comité International de la Croix-Rouge, and Bugnion, “International Humanitarian Law: Answers to Your Questions ”
30 “What is IHL?” The International Humanitarian Law Research Initiative, Harvard Program on Humanitarian Policy and Conflict Research 2009, https://www icrc org/en/download/file/4541/what-is-ihl-factsheet pdf By suggesting that jus in bello is of limited relevance, this paper aims not to detract from the value of the two civilian lives lost in the sinking, but rather to suggest that the nature of striking a naval target 370 kilometers from land is subject to different considerations when compared to kinetic actions occurring in a dense urban environment.
31 Kieran Tinkler, “Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War,” European Journal of International Law: Talk! (EJIL: Talk!), 2017.
32 “Proportionality allows an injured State to do what is reasonably necessary to deal with the threat it is facing ” Tinkler, “Understanding the Use of Zones and the Concept of Proportionality.”
33 David Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum , ” European Journal of International Law 24.1 (2013), 238.
34 “In terms of the threat facing the British fleet, UK signals intelligence intercepted a communication prior to the torpedoing of the Belgrano that confirmed it was to rendezvous with other vessels back inside the TEZ [total exclusion zone] in order to engage in a pincer attack the Captain of the Belgrano confirmed confirmed any change of direction was a temporary manoeuvre and that he had been commanded to attack the British fleet wherever he encountered it ” Tinkler, “Understanding the Use of Zones and the Concept of Proportionality ”
35 “The Just War Tradition provides part of the philosophical foundation for the modern law of war and has considered both jus ad bellum and jus in bello.” Office of the General Counsel, Department of Defense Law of War Manual (Washington, D C : 2015), 26
the jus ad bellum Principle of Proportionality invites further examination insofar as it relates to whether the sinking could be deemed as a just or unjust act. An alternative to Tinkler ’s selected definition of proportionality is whether the final outcome of the war outweighs the overall harm it caused36—this can be referred to as “means-ends” proportionality 37 There is a valid, albeit subjective, judgment to be made that the UK’s sinking was justified under means-ends proportionality if the task force’s success in retaking the lost territories—in the pursuit of the self-determination of the islanders, deterring aggression against other overseas territories, and as a condemnation of aggression as a moral wrong38—outweighed the conflict’s casualties and human costs.39 As the British Task Force sailed into the South Atlantic with a narrow weather window, the critical question that must be asked was whether the war cabinet’s determinations on the acceptable costs for retaking lost territories included sinking Argentine ships outside the exclusion zone—an action which could foreseeably result in a large number of Argentine casualties and potential British casualties if the ARA General Belgrano carried out its planned attack.
There are two additional jus ad bellum criteria which are applicable to this sinking of the ARA General Belgrano, the first of which—the Principle of Last Resort—dictates that all non-violent options must be exhausted before using force.40 The second criterion, the Principle of Right Intention, sets the “object in war [to be] a better state of peace.”41 These just war criteria are thoroughly discussed in a 1987 article by Dr Christoph Bluth, a scholar of international relations currently serving as a Professor at the University of Bradford.42 While Bluth’s argument regarding the Principle of Proportionality lacks the contemporary context of Tinkler ’s piece in the European Journal of International Law, 43 two of his arguments concerning the Principle of
36 “the overall goal of the State in resorting to war should not be outweighed by the harm that the war is expected to produce.” Office of the General Counsel, Department of Defense Law of War Manual, 86.
37 Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum , ” 238
38 “But they [who are fighting aggression] are always justified in fighting; and in most cases, given the harsh choice, fighting is the morally preferred response ” Walzer, Just and Unjust Wars, 51
39 “Britain’s justification for engaging in military conflict was based on the right to self-defence against aggression… [because] British territory had been seized[,] the right to self-determination of the inhabitants of this territory had been usurped[,] and the principles of international law must be upheld… [another] argument here is that Britain [had] a duty to demonstrate to the world that aggression does not succeed and thereby deter potential would-be aggressors ” Christoph Bluth, “The British Resort to Force in the Falklands/Malvinas Conflict 1982: International Law and Just War Theory,” Journal of Peace Research 24 1 (1987), 9-10; John F Burns, “Vitriol Over Falklands Resurfaces, as Do Old Arguments,” The New York Times, 2019
40 Eamon Aloyo, “Just War Theory and the Last of Last Resort,” Ethics & International Affairs 29 2 (2015)
41 B H Liddell Hart, Strategy (New York: Plume Books, 1974), 338
42 Bluth, “The British Resort to Force in the Falklands/Malvinas Conflict 1982,” 12-16.
43 Peter Beaumont, “Belgrano crew ‘trigger happy,’ The Guardian, 2003
Right Intention and the Principle of Last Resort hold validity: the UK violated both principles by a) pursuing war aims—the vindication of British claims vis-á-vis the aphorism that might is right44—for political reasons outside the purview of just causes,45 and b) favoring escalation vis-á-vis the sinking of the ARA General Belgrano over the pursuit of former Tory plans for a lease-back arrangement,46 respectively Bluth’s argument is certainly valid; however, it goes without saying that it is difficult to ascertain counterfactuals concerning the sinking of the ARA General Belgrano and the Peruvian peace proposal.
Bluth’s arguments regarding the Principle of Right Intention and the Principle of Last Resort can, in conjunction, be taken a step further. The failure to exhaust all options for a negotiated settlement—which was largely responsible for the situation that necessitated the sinking of the ARA General Belgrano—escalated the conflict and shaped the post-war re-establishment of the pre-war peace (status quo ante bellum).47 Concerns of non-aligned states regarding the prewar peace—largely viewed as a colonial issue—were not negotiated or addressed in the outcome of the conflict.48 This resulted in the continuation of the unresolved
44 “It could therefore be argued that Britain was basically saying that ‘might is right’ and the British use of force turned out to be designed not to ensure that the resolution of the dispute was carried out by peaceful means, but force was used to actually achieve this resolution, thereby denying the very principle [of just cause] that the British use of force was supposed to uphold.” Bluth, “The British Resort to Force in the Falklands/Malvinas Conflict 1982,”
45 “the British Government was in the main pursuing objectives which cannot be described as just causes and hence was not pursuing the conflict with right intention ” Bluth, “The British Resort to Force in the Falklands/Malvinas Conflict 1982,” 13-14. A clear example of Bluth’s argument is in regards to MP Edward Rowlands’ comment on South Thule (a collection of the three southernmost islands in South Georgia and the South Sandwich Islands); despite being demonstrated to be a different situation to that of the Falkland Islands, relative to the number of islanders, Thatcher ’s response highlighted a concern centered around the protection of British territory rather than the protection of political communities. It should also be noted, relative to the Principle of Right Intention, that narrowly defined political incentives and the pursuit of the Principle of Right Intention are not mutually exclusive
46 “A lease-back type of arrangement, which would preserve the ‘interests of the islanders’, their British way of life and a degree of local autonomy, could be considered to be a just solution to the dispute Indeed, at one time it had been pursued by the Conservative Government itself… A close study of the negotiations during the conflict suggests that this might have been enough to secure Argentine withdrawal from the islands, and military conflict would have been avoided. However, neither the War Cabinet nor Parliament would have agreed to such a deal.” Bluth, “The British Resort to Force in the Falklands/Malvinas Conflict 1982,” 14-16; Simon Jenkins, “How Margaret Thatcher ’s Falklands gamble paid off,” The Guardian, 2013
47 “In their [non-aligned states] eyes justice was not served by the restoration of the status quo ante bellum, with the subsequent refusal to negotiate, and the principle that aggression must not succeed was not effectively demonstrated as a moral principle; for them, after all, colonialism is the most serious form of aggression ” Bluth, “The British Resort to Force in the Falklands/Malvinas Conflict 1982,” 11
48 “Argentina Enjoys Widespread Support over Question of Falklands (Malvinas) as Fourth Committee Begins Debate on Decolonization Matters,” GA/SPD/580, 2015, https://www un org/press/en/2015/gaspd580 doc htm
tensions between consequential political communities, rather than a “better peace.”49 While it is true that the defenses of the Falkland Islands have become stronger in recent decades, such an enhancement of capabilities pursuant to deterrence by denial and the human costs of the Falklands War are not mutually inclusive. In fact, the weakening deterrent on the islands is often seen as a major lapse of judgment by Thatcher in the lead-up to the conflict. It should also be stated that the merits of a just peace are not based on the consensus of the international community, as such a practice would not be sustainable; however, prominent opinions held in the international community are critical in determining how sustainable the status quo post bellum is. Therefore, the prioritization of military action—targeting the ARA General Belgrano, which represented an imminent threat to the British Task Force constrained by a narrowing weather window—over uncertain diplomatic solutions did not meet the rule established by the Principle of Last Resort. The failure to adhere to this rule escalated the conflict and was instrumental in the continuation of unresolved tensions from the pre-war peace, running contrary to the goals promoted by the Principle of Right Intention.
Despite legal ambiguities over the ownership of the seized British Overseas Territories in the South Atlantic, the presence of a local political community could be used to support the UK’s defense of the Falkland Islands relative to the right of self-defense enshrined in codified international law and international norms. The sinking of the ARA General Belgrano presents a more complicated set of jus ad bellum criteria. Given the military dilemma regarding the Argentine fleet in early May and considerations of jus ad bellum proportionality, the war cabinet’s decision to sink the ARA General Belgrano is best understood as the appropriate response (relative to the tit for tat definition of proportionality), if not a justifiable decision (relative to the means-ends definition of proportionality). However, it could be reasonably foreseen that sinking the ARA General Belgrano would nix future opportunities for a diplomatic solution; the sinking imputed the British failure to meet the Principle of Last Resort’s strict rule, which is uncompromising when compared to the standards imposed by other just war criteria.
49 “And [a] better [state of peace], within the confines of the argument for justice, means more secure than the status quo ante bellum, less vulnerable to territorial expansion, safer for ordinary men and women and for their domestic self-determinations ” Walzer, Just and Unjust Wars, 122
This escalation of the conflict and the interruption of negotiations resulted in an unjust peace that ran contrary to the goals promoted by the Principle of Right Intention.
It should be recognized that an analysis of Argentina’s conduct during the Falklands War is outside the scope of this paper The British dilemma posits interesting and dynamic questions. Examining these three principles begs the question of how jus ad bellum criteria should be respectively weighed. In other words, under what conditions should military actions be taken if different jus ad bellum principles uphold and reject its permissibility? While this paper does not resolve this inquiry, the presentation of arising ambiguities is in and of itself a political statement: evaluations on the recourse to the use of force are often unclear and difficult to make. But it is necessary to reckon with such decisions, as moral judgments constitute an important component of the contemporary international order.50
While many may harbor uncertainties regarding this historical example on the recourse to the use of force—particularly in the case of UK public opinion on the sinking of the ARA General Belgrano51—such considerations are more relevant than ever in the context of potential air-sea battles in the Indo-Pacific. It is important to consider how US President Joe Biden or future administrations would react if placed in a similar situation to the sinking of the ARA
General Belgrano with Taiwan or any disputed islands in the region. Will the increasing speed and connectivity of warfare fundamentally change the escalation of conflicts and the manner in which decisions of strategic consequence are made, or will the epigram “the more things change, the more they remain the same” hold true?52 It also raises the question of how policymakers should, in unique circumstances, evaluate vague and seemingly contradictory jus ad bellum criteria. The ways in which political leaders process and understand the world will continue to be shaped by the law and its function as a lens of normative understanding.
Hopefully, the world will never need to see the answer to this question. It is one thing for an undergraduate to write on the Falklands War in the abstract, but it needs to be recognized that these aforementioned judgments by leaders in situations of life and death have very real
50 “...statesmen who don’t feel the agony of a problematic decision generally know that they should feel it… They [statesmen dishonest about moral life] lie in order to justify themselves, and so they describe for us the lineaments of justice Wherever we find hypocrisy, we also find moral knowledge there is a way of seeing the world so that moral decision-making makes sense ” Walzer, Just and Unjust Wars, 19
51 “Falklands War: Britain and Argentina,” YouGov, 2012, https://yougov co uk/topics/politics/articles-reports/2012/04/10/falklands-war-britain-and-argentina A summary of the poll’s results indicates that approximately 41% of UK citizens don’t know whether it was right or wrong to sink the ARA General Belgrano .
52 Alphonse Karr, A Tour Round My Garden (London: G Routledge, 1855), 313
consequences for noncombatants, servicemembers, and their families. War is hell regardless of jus ad bellum and jus in bello conduct, and we are best off remembering the horrific human costs it imposes on all involved parties.
Aloyo, Eamon. “Just War Theory and the Last of Last Resort.” Ethics & International Affairs 29, no. 2 (2015).
“Argentina Enjoys Widespread Support over Question of Falklands (Malvinas) as Fourth Committee Begins Debate on Decolonization Matters.” UN Press. United Nations. Accessed November 25, 2022. https://www.un.org/press/en/2015/gaspd580.doc.htm.
“Belgrano Crew 'Trigger Happy'.” The Guardian. Guardian News and Media, May 25, 2003. https://www.theguardian.com/politics/2003/may/25/uk.world.
Bluth, Christoph. “The British Resort to Force in the Falklands/Malvinas Conflict 1982: International Law and Just War Theory.” Journal of Peace Research 24, no. 1 (1987): 5–20. https://doi.org/10.1177/002234338702400102.
Bothe, M. “Terrorism and the Legality of Pre-Emptive Force.” European Journal of International Law 14, no. 2 (2003): 227–40. https://doi.org/10.1093/ejil/14.2.227.
Burns, John F. “Vitriol Over Falklands Resurfaces, as Do Old Arguments.” New York Times, 2019.
https://www.post-gazette.com/news/world/2013/01/06/Vitriol-Over-Falklands-Resurfaces -as-Do-Old-Arguments/stories/201301060314.
Department of Defense Law of War Manual Washington, DC: General Counsel of the Department of Defense, 2015.
El Tribuno. “Cristina: ?Lo Del Belgrano Fue Un Crimen De Guerra?” El Tribuno, May 3, 2012.
https://www.eltribuno.com/salta/nota/2012-5-2-21-40-0-cristina-lo-del-belgrano-fue-un-c rimen-de-guerra.
Farley, Robert. “Why Everyone Is So Obsessed with the Falklands War.” The National Interest. The Center for the National Interest, August 3, 2018.
https://nationalinterest.org/blog/buzz/why-everyone-so-obsessed-falklands-war-27752.
Freedman, Lawrence. Britain and the Falklands War. Basil Blackwell, 1988.
Gardam, Judith. Necessity, Proportionality, and the Use of Force by States. New York, New York: Cambridge University Press, 2004.
Greenwood, Christopher. “International Law and the Conduct of Military Operations: Stocktaking at the Start of a New Millenium.” International Law Studies 75, no. 1 (2000).
Henry, Liddell Hart Basil. Strategy. New York, N.Y, U.S.A. : Meridian, 1991.
Jenkins, Simon. “How Margaret Thatcher's Falklands Gamble Paid Off.” The Guardian.
Guardian News and Media, April 9, 2013.
https://www.theguardian.com/politics/2013/apr/09/margaret-thatcher-falklands-gamble.
Kretzmer, D. “The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum.” European Journal of International Law 24, no. 1 (2013): 235–82.
https://doi.org/10.1093/ejil/chs087.
McMahan, Jeff. “Rethinking the 'Just War,' Part 1.” The New York Times. The New York Times, November 11, 2012.
https://archive.nytimes.com/opinionator.blogs.nytimes.com/2012/11/11/rethinking-the-jus t-war-part-1/.
Sagan, Scott D., and Benjamin A. Valentino. “Just War and Unjust Soldiers: American Public Opinion on the Moral Equality of Combatants.” Ethics & International Affairs 33, no. 4 (2019): 411–44. https://doi.org/10.1017/s0892679419000431.
Sidgwick, Henry. Elements of Politics. HANSEBOOKS, 2016.
Soussi, Alasdair. “How Are the UK's Territories Dealing with the Coronavirus?” Al Jazeera, April 20, 2020.
https://www.aljazeera.com/news/2020/4/20/how-are-the-uks-territories-dealing-with-thecoronavirus.
“South Georgia & the South Sandwich Islands.” Government of South Georgia & the South Sandwich Islands. Accessed November 25, 2022. https://www.gov.gs/information/about-sgssi/.
Sumner, Brian Taylor. “Territorial Disputes at the International Court of Justice.” Duke Law Journal 53 (2003): 1779–1812.
Tinkler, Kieran. “Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War.” EJIL, December 11, 2017.
https://www.ejiltalk.org/understanding-the-use-of-zones-and-the-concept-of-proportionali ty-enduring-lessons-from-the-falklands-war/.
“UK Sued over Belgrano Sinking.” BBC News. BBC, June 29, 2000. http://news.bbc.co.uk/2/hi/uk_news/812146.stm.
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.
Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York, New York: Basic Books, 2015.
“What Is IHL.” International Committee of the Red Cross, 2009.
https://www.icrc.org/en/download/file/4541/what-is-ihl-factsheet.pdf.
YouGov. “Falklands War: Britain and Argentina.” YouGov. YouGov, April 10, 2012.
https://yougov.co.uk/topics/politics/articles-reports/2012/04/10/falklands-war-britain-andargentina.
Divya
Fall
In 2009, Kraig Kahler was charged with capital murder and sentenced to death for murdering his estranged wife, her grandmother, and his two daughters. During the trial, he invoked the insanity defense. Kahler ’s appeal was subsequently taken up by the Supreme Court of the United States. His conviction offered a vehicle to address whether the insanity defense is a constitutional right, a question over which many states were divided. Did discounting the insanity defense violate the Eighth Amendment’s prohibition on cruel and unusual punishments and the Fourteenth Amendment’s Due Process guarantee? The Supreme Court found that Kahler ’s conviction was constitutional. One question critical to dissecting this case and its criminal nature is that of culpability, both moral and legal, and the difference between the definitions of these terms. While moral culpability is defined as “blame” associated with an individual in “control over the [criminal] situation” who “understood that…the consequences of [their] actions were evil at the time that the acts were committed,” legal culpability is defined as “blame involving the commission of a fault or the breach of a duty imposed by law.”1 One who is legally culpable would demonstrate “insufficient regard for the interests, rights, and values that are [legally] protected.”2 Thus, the question becomes: should criminal law invoke and/or mirror moral or legal culpability?
Kahler had enjoyed a “happy marriage” with his wife until late 2008.3 When his marriage deteriorated, Kahler became increasingly set on exerting “control” over his family.4 As his life began to unravel, he lost his job and became suicidal. According to the Petition for a Writ of Certiorari, Kahler was prescribed medications by specialists for his obsessive-compulsive disorder and depression, but he refused to follow treatment protocols. Around Thanksgiving 2009, aware that his wife and children were staying with his wife’s grandmother, he drove to the latter ’s home and proceeded to kill them. During Kahler ’s trial, his representatives claimed that the defendant suffered from “depression so severe that he experienced extreme emotional
1 Steve McCartney and Rick Parent, “8.4 Moral Culpability versus Legal Culpability,” Ethics in Law Enforcement (BCcampus, April 17, 2015), https://opentextbc.ca/ethicsinlawenforcement/chapter/moral-culpability-verses-legal-culpability/.
2 Alexander Sarch, “Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak,” SpringerLink (Springer Netherlands, December 2, 2021), https://link springer com/article/10 1007/s10982-021-09424-8
3 Carver-Allmond and Green, Petition for a Writ, 5
4 Steven J Twist and Allyson N Ho, Cou, Brief for Lynn Denton, Arizona Voice for Crime Victims, INC , and Utah Crime Victims Legal Clinic as Amici Curiae in Support of Respondent , issue brief no 18-6135, 3, August 9, 2019, accessed April 28, 2020, https://www.supremecourt.gov/DocketPDF/18/18-6135/111889/20190809163239399 Brief%20for%20Lynn%20Denton%20et%20al%20TO%20FILE pdf
disturbance, dissociating him from reality” and preventing him from exerting control over his actions.5 The psychologists who evaluated Kahler after his arrest diagnosed him with major depressive disorder and with obsessive-compulsive, paranoid, borderline, and narcissistic personality tendencies.6 Finding that he seemed unable to fully remember or understand his heinous actions, defense experts also concluded that Kahler might have struggled from “stress induced short-term dissociation,” explaining his inability to remember key moments between the murder and the next morning, when he turned himself in.7 While clear that Kahler suffered from a variety of mental illnesses, no expert labeled the defendant as criminally insane.
Under Kansas law, however, the jury was unable to regard Kahler ’s mental illnesses during trial as evidence of the defendant being “criminally insane at the time of the shootings.”8
In 1996, the Kansas legislature “refined” the state’s insanity defense to clarify that a “mental disease or defect” could exonerate a prosecuted individual only if said individual “lacked the mental state required as an element of the offense charged.”9 In other words, for Kahler to be exonerated, he would need to prove that his mental illnesses directly impacted his ability to form the necessary intent to kill. This statute thereby prevented the jury of the lower court from considering whether Kahler had fully appreciated the nature of his actions and had been able to identify “right from wrong” at the time of the shootings.10
The defendant’s trial was conducted in two steps: first, the jury considered whether Kahler was guilty of committing murder. Finding him guilty, Kahler moved to the sentencing phase. Here, the court was granted full access to the evidence of his mental illnesses in order to ascertain whether Kahler ’s mental state had impacted his ability to form the intention to commit murder. Only at this part of the proceedings was the jury permitted to consider Kahler ’s “mental
5 Carver-Allmond and Green, Petition for a Writ, 4-5.
6 Carver-Allmond and Green, Petition for a Writ, 6
7 Carver-Allmond and Green, Petition for a Writ, 28.
8 Carver-Allmond and Green, Petition for a Writ, 7
9 Derek Schmidt and Toby Crouse, Cou, Brief of the State of Kansas in Opposition: Kahler v Kansas, issue brief no 18-6135, i, November 28, 2018, accessed April 28, 2020, https://www supremecourt gov/DocketPDF/18/18-6135/ 73478/20181128115641978 Kahler%20FINAL%20VERSION%20-%20November%2028 pdf
10 Allison R McLaughlin, Cou and Theresa Wardon Benz, Brief of Amici Curiae Legal Historians and Sociologists in Support of Petitioner, issue brief no 18-6135, 18, June 7, 2019, accessed April 28, 2020, https://www.supremecourt.gov/DocketPDF/18/18-6135/102306/20190607113812332 Brief%20of%20Amici%20Cu riae%20Legal%20Historians%20and%20Sociologists%20in%20Support%20of%20Petitioner pdf
state,” specifically for “mitigation purposes.”11 Consideration of the evidence did not alter their verdict.12
The Kansas Supreme Court upheld the lower court’s verdict, also concluding that Kahler knowingly and deliberately committed murder 13 Regardless of how unstable Kahler ’s mind might have been when he made the choice to kill, it was decided that he did, in fact, make an intentional cognitive choice and that he therefore could not seek protection in the insanity defense. To some, this ruling seemed to contradict a belief integral to the nation’s justice system: that individuals “cannot be punished for crimes for which they are not morally culpable,” since Kahler had demonstrated symptoms of mental illness at the time of the shooting.14 But does one’s ability to make a moral choice matter if a cognitive decision has been made?15 In other words, what does it mean to reach a deliberate decision if one’s ability to acknowledge the moral consequences of one’s intention is weakened?
For many years, the Supreme Court has held that each state should have the jurisdiction to set their own evidentiary standards regarding the insanity defense.16 In Kansas, the state legislature decided in 1996 to limit the defense for criminal defendants who “lacked the mental state required as an element of the offense charged.”17 In Kahler ’s case, there was insufficient evidence that the defendant’s mental struggles, while significant, actually impacted his ability to make the deliberate choice to shoot four innocent people.18 Kansas’ decision to discount the insanity defense in this case was constitutional because it was not proven that Kahler ’s disorders affected his ability to exert control over his actions or to understand his intention. Kahler was guilty of murder: regardless of how his state of mind caused him to come to the conclusion to kill, he ultimately did make the choice to kill.
One could argue that granting each state the authority to interpret the insanity defense at their own discretion and to have their own standard for criminal liability could present a dangerous inconsistency throughout the nation. However, such flexibility for each state is necessary because questions of sanity, including what it means to have a sound mental state and 18
to behave in a way that demonstrates one’s control over one’s own senses, are highly debated and delicate.. There was , in fact, a standard of legal sanity—the M’Naghten rule—that many states, including Kansas, followed over the course of the 20th century.19 This rule relieved a defendant of criminal responsibility if it was found that the individual did not understand “the nature and quality of his act” or did not “know right from wrong with respect to that act.”20 However, the conditions of the M’Naghten rule are not founded in objectivity, but in questions of morality that are difficult to evaluate scientifically. Setting their own, more individualized standards has allowed each state to have the flexibility necessary to examine questions of mental capacity on a more case-by-case basis, which can lead to inconsistent practices on a federal level.
During his trial, Kahler and his representatives attempted to justify the defendant’s actions by claiming that “severe depression had rendered him incapable of forming the intent and premeditation necessary for capital murder.”21 The forensic psychiatrist of the state of Kansas, however, noted specifically that while Kahler was mentally ill, he was, in fact, able to form “the requisite intent and premeditation” to commit murder 22 Evidence of the defendant’s ability to make careful plans and carry them out lies in the occurrences leading up to the shootings. Kahler needed to have had sufficient decision-making capacity in order to even get into his car with a lethal weapon and drive to the house of his wife’s grandmother. These actions seem to have been very well thought-out and purposeful, perhaps even part of a revenge scheme against his estranged wife. Kahler also made a seemingly very active and conscious decision while shooting: to kill his estranged wife and daughters while “sparing” his son—his favorite child whom he did not “blame” for his marital and familial issues.23 These actions suggest that Kahler was, in fact, well aware of himself, his behavior, and his premeditated goals at the time of the shootings.
During the trial, Kahler and his representatives invoked the application of the insanity defense to the defendant’s case as a kind of constitutional right. It was argued that the Kansas jury had “abolished” the insanity defense by convicting Kahler, a man with significant mental disabilities, of capital murder after delaying consideration of “additional evidence” of his
criminal insanity until the “penalty phase” of the trial.24 This identification of Kansas law, however, was a blatant “mischaracterization.”25 The 1996 refinement of the statute was simply a modification of the provision to allow for a “mens rea approach,” which is to say that an accused individual could seek defense if their mental state did not give them the ability to form the requisite intent.26 Had the state actually eliminated the insanity defense, Kahler ’s mental state and any evidence of his mental instability would not have been part of the jury’s deliberation at all, when it in fact was. One might argue, on the opposing side, that the structure of Kansas law as it relates to criminal insanity prevented Kahler from presenting evidence of his mental disabilities at an early enough occasion. One might also reason that the question of moral culpability and mental capacity is so fundamental to the tradition of justice in the United States that not allowing Kahler to seek protection behind the insanity defense from the start of his trial was inherently wrong.27 However, the Kansas Supreme Court did ultimately accept the full range of said evidence and evaluate the information based not on timing of receipt but on its substance and value. Therefore, the fact that all the evidence was not fully considered until the sentencing phase of the proceedings is not a violation of the Due Process Clause of the Eighth Amendment: had the information presented been significant enough to change the jury’s perspective following the guilty verdict, Kahler could have received a minimized sentence. It was not decided, however, that Kahler deserved any reduction in punishment for a crime he was deemed responsible for
In a democracy, each person is part of an overarching social contract. The members of the community enter an implicit agreement: each individual will relinquish certain rights and personal freedoms in order to enter a state of mutual protection and peace. In such a society, the value and purpose of punishment as it relates to crime lies in its ability to not only serve justice, teach and deter a criminal from committing the same crime, and isolate those who pose dangerous threats to the social contract from the rest of the community, but also to set an example to the society as a whole. Thus, deciding this case in favor of Kraig Kahler would have had devastating implications for the criminal justice system in the United States. The Kansas Supreme Court found that at the time of the shootings, Kahler possessed enough mental stability 27 Carver-Allmond and Green, Petition for a Writ, 4 26 Schmidt and Crouse, Brief of the State, 8. 25 Schmidt and Crouse, Brief of the State, 7
to make the “calculated” and conscious decision to commit murder—-to completely disrupt the social contract by upending and destroying the lives of many others in the community.28 Thus, Kahler ’s conviction by the Kansas Supreme Court did not violate the Eighth or Fourteenth Amendments. In the same way that Kahler made an intentional decision to kill, the Kansas Supreme Court made an intentional decision to serve appropriate retribution. Just as the laws of physics state, with every action comes an equal and opposite reaction.
The question remains: has justice been duly and appropriately served? Kahler was indicted for four murders that he committed with intention, regardless of how rationally he was able to reach the conclusion to kill in his mind. It is true that there are certain “principles of justice” that are “so rooted in the traditions and conscience” of American people as to be ranked as fundamental.” Among these is the “humane” notion that an individual who is unable to recognize the severity and morality of a crime they did not “deliberately intend” to commit should not be held responsible for said crime.29 However, in this case, there is not enough evidence to support the notion that Kraig Kahler ’s actions occurred in a vacuum. Kahler ’s history of violent domestic behavior following his wife’s vocalization of her desire for divorce as well as the careful, methodical nature of the measures the defendant took to kill four out of the five members of his family at his wife’s grandmother ’s home suggests the opposite.30 This case highlights the fact that claiming insanity as an excuse for a crime as egregious as murder must have its limits. Kahler, who evidently posed an extreme danger to society, was rightly forced to take full responsibility for his actions and face the appropriate consequences. Moreover, this case set a new legal precedent in which the insanity defense was measured not through “moral blameworthiness” but instead by legal culpability.31 In their 6-3 ruling, the Supreme Court supported the Kansas Supreme Court’s decision that the due process clause does not necessitate that the Kansas insanity test rely on a defendant’s ability to recognize the moral wrongness of their action(s), setting the stage for future cases in which moral culpability will be weighed less than legal culpability in criminal proceedings.
Carver-Allmond, Meryl, and Jeffrey T. Green, Cou. Petition for a Writ of Certiorari: Kahler v. Kansas. September 28, 2018. Accessed April 28, 2020.
https://www.supremecourt.gov/DocketPDF/18/18-6135/65178/20180928145700757_Kah ler%20Petition%20for%20Writ%20of%20Certiorari.pdf.
McCartney, Steve, and Rick Parent. “8.4 Moral Culpability versus Legal Culpability.” Ethics in Law Enforcement. BCcampus, April 17, 2015.
https://opentextbc.ca/ethicsinlawenforcement/chapter/moral-culpability-verses-legal-culp ability/.
McLaughlin, Allison R., Cou, and Theresa Wardon Benz. Brief of Amici Curiae Legal Historians and Sociologists in Support of Petitioner. Issue brief no. 18-6135. June 7, 2019. Accessed April 28, 2020.
https://www.supremecourt.gov/DocketPDF/18/18-6135/102306/20190607113812332_Br ief%20of%20Amici%20Curiae%20Legal%20Historians%20and%20Sociologists%20in %20Support%20of%20Petitioner.pdf.
Sarch, Alexander. “Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak.” SpringerLink. Springer Netherlands, December 2, 2021.
https://link.springer.com/article/10.1007/s10982-021-09424-8.
Schmidt, Derek, and Toby Crouse, Cou. Brief of the State of Kansas in Opposition: Kahler v. Kansas
Issue brief no. 18-6135. November 28, 2018. Accessed April 28, 2020.
https://www.supremecourt.gov/DocketPDF/18/18-6135/73478/20181128115641978_Kah ler%20FINAL%20VERSION%20-%20November%2028.pdf.
Twist, Steven J., and Allyson N. Ho, Cou. Brief for Lynn Denton, Arizona Voice for Crime Victims, INC., and Utah Crime Victims Legal Clinic as Amici Curiae in Support of Respondent . Issue brief no. 18-6135. August 9, 2019. Accessed April 28, 2020.
https://www.supremecourt.gov/DocketPDF/18/18-6135/111889/20190809163239399_Bri ef%20for%20Lynn%20Denton%20et%20al%20TO%20FILE.pdf.
The United States is the third largest country in size and in population. Our nation is, however, the world’s leader in incarceration. With over two million Americans behind bars – a 700% increase in the past 50 years – incarceration affects the lives of a growing proportion of prisoners and their families.1
Criminal justice systems strive to meet four primary objectives: retribution, incapacitation, deterrence, and rehabilitation. In a perfect system, these objectives collectively serve to hold criminal offenders accountable by punishing offenses, physically inhibiting offenders via incarceration, discouraging offenses, and correcting criminal behaviors to prevent future crime. Within the US criminal justice system, however, insufficient attention is given to rehabilitation and return to society. Rehabilitation is unsuccessful most of the time, as shown by the rate of re-offense for released inmates. The failure to rehabilitate inmates creates an incomplete criminal justice system – one which is too focused on punitive functions rather than successful reentry into civil society
Recidivism refers to when a former inmate is rearrested after leaving prison. Five out of six state prisoners were arrested at least once within nine years of their release from prison, according to a US Department of Justice study that tracked nearly half a million prisoners across 30 states.2 High recidivism rates indicate that prisons fail to prevent future criminal activity, either through specific deterrence or rehabilitation. The criminal justice system releases prisoners knowing, statistically, that most will reoffend. The failure of criminal justice systems to deter future criminal activities of released inmates reveals an important structural flaw which ultimately harms society. Further, high recidivism rates mean released prisoners will likely serve another sentence, contributing to the United States having the highest incarceration rate, per capita, in the entire world. The increasing proportion of incarcerated Americans coupled with a growing population overall has overwhelmed the criminal justice system as more and more people are behind bars. Such prison overcrowding opens yet another series of issues, including exacerbating mental health issues, increasing likelihood of violent encounters, and magnifying already exorbitant governmental spending on criminal justice.
However, recidivism may not be the fault of prison management, or even the prisoners themselves, but rather an inherent flaw of incarceration. Recent neurological evidence shows that traditional prisons exacerbate criminal behaviors in prisoners serving sentences of over three months, resulting in reduced self-control3 and poor executive functioning.4 Released prisoners, therefore, may be less capable of pursuing a lawful life after their release than they may have been prior to imprisonment. Meijers et al. further explain that released prisoners may be “less able to sustain focus on higher-level goals and more prone to risk-taking behavior.” In addition, conditions inherent to the prison environment – such as lack of meaningful communication with social networks, violent encounters with those around them, and deprived unstimulating environments – exacerbate these lasting psychological issues. Based on this understanding, prisons in their current form inherently decrease the capacity of inmates for rehabilitation and reintegration into society as law-abiding citizens.
Scientific advances allow for a better understanding of the effects of imprisonment on inmates, including the detrimental long-term social, behavioral, and neuropsychological impacts of imprisonment even after release. Government actors ought to reappraise the current prison system and institute reforms leading to solutions that are more effective, ethical, and legally defensible. In the long term, these scientifically-informed redesigns will reduce recidivism rates and improve the safety of society, ultimately creating more humane prison systems by making rehabilitation a feasible goal.
This paper will first discuss flaws in the current prison system and why they hinder, rather than help, former inmates’ transition back to civil society
In the last half century, America’s prison population has increased by 700%, far outpacing the roughly 60% growth in the overall U.S. population.5 The expansion of rehabilitation resources, however, has not kept pace with the rapid increase of inmates released from prisons, thereby preventing inmates from receiving the services that are needed to
3 Jesse Meijers et al , “Reduced Self-Control after 3 Months of Imprisonment; a Pilot Study,” Frontiers in Psychology 9 (February 1, 2018), https://doi org/10 3389/fpsyg 2018 00069
4 Rebecca Umbach, Adrian Raine, and Noelle R Leonard, “Cognitive Decline as a Result of Incarceration and the Effects of a CBT/Mt Intervention: A Cluster-Randomized Controlled Trial,” Criminal Justice and Behavior 45, no 1 (November 7, 2017): pp 31-55, https://doi org/10 1177/0093854817736345
5 “Mass Incarceration,” American Civil Liberties Union, February 15, 2022, https://www.aclu.org/issues/smartjustice/mass-incarceration
successfully reintegrate them into society. The Federal Bureau of Prisons (BOP) reported that, among prisoners released between 2009 and 2015, nearly half had not completed any rehabilitative programming while in custody and 57% of those in need of drug treatment did not receive any drug-rehabilitation services.6
The First Step Act (FSA) sought to remedy this issue, providing funding to increase the number of prisoners receiving help from rehabilitative programs. In 2018, the FSA authorized $75 million annually for BOP prisoner rehabilitation, and this appropriation increased to $105 million in 2020.7 However, the true outcome of FSA funding to support BOP’s evidence-based risk reduction programs (EBRRs) cannot be accurately assessed for reduction in recidivism due to two critical issues. The first is t he lack of serious, formal evaluations of the more than 50 categories of BOP programs. Bryne writes, “ The Bureau’s Directory of National Programs appears to suggest that only 3 of the 18 ‘national program models’ have ever been directly evaluated, and only one of them during the past two decades.”8 The current BOP programs, which are self-proclaimed as “evidence-based,” lack a standard curriculum across prisons and are not known to be effective because of a lack of data on individual programs. The second issue impairing the assessment of these programs is the limited proportion of inmate participation in available programs .Participation in the programs is incentivized but not required, leading to biases with self-selection.9 Even when resources are available to inmates and released prisoners, their self-selection into participating in programs or opting out is likely confounded with other variables, making the BOP programs’ true effects on reducing recidivism difficult. Overall, there is insufficient evidence pointing to the efficacy of these new rehabilitative programs.
Deterrence theory proposes that the threat of a greater criminal penalty discourages potential offenders from committing crimes. Yet, longer prison sentences – such as those arising from minimum sentencing laws – generally do not increase the deterrence effect due to fear of
6 Kara Gotsch, “One Year after the First Step Act: Mixed Outcomes,” The Sentencing Project, October 26, 2022, https://www sentencingproject org/policy-brief/one-year-after-the-first-step-act-mixed-outcomes/
7 “Federal Prison System FY 2021 PERFORMANCE BUDGET Congressional Submission,” United States Department of Justice § (2021), https://www justice gov/doj/page/file/1246231/download
8 James M Byrne, “The Effectiveness of Prison Programming: A Review of the Research Literature Examining the Impact of Federal, State, and Local Inmate Programming on Post-Release Recidivism (2019),” National Institute of Corrections, October 25, 2022, https://nicic gov/effectiveness-prison-programming-review-research-literatureexamining-impact-federal-state-and-local
9 Jennifer Skeem and John Monahan, “Lost in Translation: ‘Risks,’ ‘Needs,’ and ‘Evidence’ in Implementing the First Step Act,” Behavioral Sciences & the Law 38, no. 3 (March 26, 2020): pp. 287-297, https://doi org/10 1002/bsl 2459
imprisonment. This could be because most would-be criminals either do not know or underestimate the punishment associated with their offense. Further, this theory may apply to premeditated crimes, but would not necessarily have an impact on crimes committed on impulse. According to The National Academy of Sciences, empirical studies demonstrate that there is insufficient evidence to support the claim that harsher punishments yield measurable deterrent effects.10 Prof. Mirko Bagaric is the Dean of Swinburne Law School and an expert in criminal punishment and sentencing. Bagaric proposes that, “when most people make a decision regarding whether to commit a crime, the cost-benefit analysis relates to an assessment of whether they are likely to be detected if they proceed, and does not traverse to the next step of the likely consequences if they are detected.”11 Therefore, while punishment does deter crime to some extent, there is insufficient evidence to support that longer prison sentences have greater deterrent value than short ones.
Further, greater rates of incarceration fail to reduce crime rates despite assumptions that greater incarceration per capita would incapacitate people from committing crimes. A report from the Brennan Center for Justice finds that between 1980 and 2013, “increased incarceration had no statistically significant effect on reducing violent crime and had a small effect on reducing property crime.” 12 The findings of this report indicate that prisons are ineffective in reducing crime beyond a critical mass of inmates; that is, each additional inmate imprisoned beyond this point has little to no effect on crime rates. Canela-Cocho et al. explains that incarceration’s incapacitating effect decreases when used for less serious offences, such as nonviolent crimes and drug offences, because of the decreasing marginal crime-reduction gain from incarceration.13 An increase in incarceration for nonviolent crimes (by lowering the threshold for incarceration) increases prison populations without necessarily decreasing crime.
10 Jeremy Travis, Steve Redburn, and Bruce Western, The Growth of Incarceration in the United States: Exploring Causes and Consequences (National Academies Press, 2014), https://www njjn org/uploads/digital-library/NatAcademies-Press Growth-of-Incarceration-in-US Oct-2014.pdf.
11 Mirko Bagaric, “The Contours of a Utilitarian Theory of Punishment in Light of Contemporary Empirical Knowledge about the Attainment of Traditional Sentencing Objectives,” in Routledge Handbook of the Philosophy and Science of Punishment (New York, NY: ROUTLEDGE, 2022), pp 62-71
12 Oliver K Roeder et al , “What Caused the Crime Decline?,” SSRN Electronic Journal, February 20, 2015, https://doi org/10 2139/ssrn 2566965
13 Jose A Canela-Cacho, Alfred Blumstein, and Jacqueline Cohen, “Relationship between the Offending Frequency (λ) of Imprisoned and Free Offenders,” Criminology 35, no. 1 (March 7, 2006): pp. 133-176, https://doi.org/10.1111 /j 1745-9125 1997 tb00873 x
As a result, increased incarceration rates fail to directly correspond with safer communities, through either rehabilitation, deterrence, or incapacitation, as prisoners may continue to recidivate after release from prison. Studies show 83% of released prisoners are arrested within a decade of their release from prison, with each prisoner being arrested an average of five times during this nine-year period. 14 The likelihood a released prisoner will re-offend and be arrested again is alarmingly high, indicating that prisons are failing to reintegrate former inmates effectively back into their communities via reducing criminal actions of people cycling through the prison system. Many systemic issues exacerbate the likelihood of recidivism, including the prisoner ’s loss of social networks while in prison – psychological changes affecting trust in communities, decreased capacity for autonomous decision making as a result of the prison experience, etc. – all of which may result in documented neuropsychological changes to the brain.
A strong predictor of a released prisoner ’s ability to reintegrate into their home community is availability of support networks, including family and friends to ease the transition.15 During prolonged periods of imprisonment, inmates lose touch with these social networks, which not only adversely affects their lives in prison, but also makes readjustment to civilian life incredibly difficult. Harsh sentencing policies, such as mandatory minimum sentences for drug violations, further increase the time that offenders spend in prison. Longer sentences exacerbate the effects of isolation from communities. Existing forms of communication with prisoners – such as letters, phone calls, and visitations – are inaccessible, non-confidential, and restricted, increasing the likelihood of prisoners losing contact with social networks.
Letters are inaccessible to a significant proportion of the incarcerated population due to prisoner illiteracy, restrictions on content, explicit bans on letters, and lack of confidentiality. Due to higher than national illiteracy rates among the imprisoned, many incarcerated people cannot read or write letters, making letters an inherently unfeasible form of communication for many The US Department of Justice reports illiteracy rates of about 10% in prison populations,
14 Alper, Durose, and Markman, “2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014),” Bureau of Justice Statistics § (2018), https://bjs ojp gov/content/pub/pdf/18upr9yfup0514 pdf
15 Alex Friedmann, “Lowering Recidivism through Family Communication,” Prison Legal News, April 2014, https://www prisonlegalnews org/news/2014/apr/15/lowering-recidivism-through-family-communication/ ; Lin Liu, “Family, Parochial, and Public Levels of Social Control and Recidivism: An Extension of the Systemic Model of Social Disorganization,” Crime & Delinquency 66, no. 6-7 (January 22, 2020): pp. 864-886, https://doi org/10 1177/0011128719901106
though other estimates are significantly higher.16 Those who can read and write, might find themselves in prisons which have banned letters completely, citing concerns of smuggled drugs and contraband in letters. Instead, these prisons adopted a “postcard only” policy, which has been upheld by some circuit courts despite protests by prisoner advocacy groups of this policy violating the First Amendment. 17 Even in the event that the prisoner and their family is literate, and the prison allows mailed letters, nearly no privacy is maintained in these communications because prison staff have the right to open, examine, read, and confiscate sealed letters. This lack of confidentiality makes letters an inadequate and unreliable form of communication and inhibits prisoners from truthfully talking to families and friends about their mental health, sensitive topics, or even mistreatment by prison personnel, out of fear of interception.
Letters are important as a means of communication with loved ones and confiding in trusted people, but even “legal mail” protected under attorney-client privilege can be and routinely is subject to examinations by staff. Scott Nordstrom, while isolated in his death row cell, wrote what he believed to be a confidential letter sealed in a legal mail envelope to his court-appointed attorney regarding his criminal appeal. He handed the letter to a correctional officer for mailing but watched the officer open and read the letter, despite his objections. Nordstrom subsequently filed a prison grievance. The Director of the Arizona Department of Corrections responded that “staff are not prohibited from reading the mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.”18 Prisoners knowing their letters are not confidential may be discouraged from writing letters at all, even to family members, both due to lack of privacy in communications and from fear their statements may be used against them. In Stroud v. United States, 251 U.S. 15, 21-22 (1919), the US Supreme Court held that letters containing incriminating material written by a prisoner and intercepted by prison personnel may be used against them at trial, despite claims of this practice violating Fourth Amendment rights. 19
Phone services, video calls, and messaging services through prison systems often charge exorbitant fees, making them even less efficient than mail communication. For instance, a
16 Carole E Rankin, “Illiterate Prisoners?: Myths and Empirical Realities,” Journal of Offender Rehabilitation 41, no 2 (2005): pp 43-55, https://doi org/10 1300/j076v41n02 03
17 David L Hudson, “8th Circuit Upholds Jail's Postcard-Only Policy, Overcoming 1st Amendment Objection,” The Free Speech Center, January 8, 2018, https://www mtsu edu/first-amendment/post/79/8th-circuit-upholds-jail-spostcard-only-policy-overcoming-1st-amendment-objection
18 Nordstrom v. Ryan, 762 F.3d 903, 906–07 (9th Cir. 2014).
19 “Stroud v United States, 251 U S 15 (1919) ” Justia, https://supreme justia com/cases/federal/us/251/15/
15-minute call from jail costs $24.82 in Arkansas. 20 Though the same duration of call for prisons costs about a third of this, uncapped rates drive up costs for prisoners to maintain contact with family and friends. Intrastate calls – which account for over 80% of calls – are not capped by the FCC (Federal Communications Commission) and contribute to these excessive prices.21
In the best-case scenario, prisons allow in-person visitors. Even in this case, visits are restricted to specific dates, for limited durations, with barriers to physical contact. During the pandemic, many prison systems stopped visitations completely, citing concerns of infection spread.22
In summary, prisons severely limit prisoners from maintaining positive relationships with family, friends, and their community through various barriers. Prisoners are not only physically isolated from communities but also barred from various forms of contact. The enormous social costs of imprisonment are too often overlooked in comparison to other tolls of the prison experience but are an important culprit in perpetuating recidivism rather than allowing effective reintegration and desistance. One in four released prisoners cite high-quality relationships and support from their families as the most important factor keeping them from prison.23
Deteriorating relationships as a result of low contact hinders reintegration. Further, the lack of connection with the outside world limits prisoners’ social interactions to other prisoners and prison personnel, which can have devastating psychological ramifications – especially in long term sentences.
Institutionalization has a negative psychological impact on prisoners. In medium- and high-security prisons, inmates are constantly in a state of high-alert due to constant threats to their safety. Because prisoner contact with loved ones and the outside world is significantly
20 Peter Wagner and Alexi Jones, “State of Phone Justice,” Prison Policy Initiative, February 2019, https://www.prisonpolicy.org/phones/state of phone justice.html#consolidation.
21 “Intrastate (in-State) Collect Prison Phone Rates ” Prison Phone Justice, https://www prisonphonejustice org/ ; Jon Reid, “FCC to Cut Some Prison Call Costs, but Most Are beyond Its Reach,” Bloomberg Law, May 20, 2021, https://news bloomberglaw com/tech-and-telecom-law/fcc-to-cut-some-prison-call-costs-but-most-are-beyond-its-re ach
22 Katie Park, “How Prisons in Each State Are Restricting Visits Due to Coronavirus,” The Marshall Project (The Marshall Project, December 8, 2021), https://www themarshallproject org/2020/03/17/tracking-prisons -response-to-coronavirus
23 Christy A Visher and Shannon M E Courtney , “One Year out Experiences of Prisoners Returning to Cleveland,” Urban Institute, April 2007, https://www.urban.org/sites/default/files/publication/43021/311445-One-Year-OutExperiences-of-Prisoners-Returning-to-Cleveland PDF
limited, inmates primarily interact with other inmates and correctional officers. However, prisoners are often victimized by the people around them, creating an environment where the prisoner is living in fear of attack from neighbors, cellmates, and authorities. In adult male prisons, more than a fifth of inmates report being physically assaulted during a six-month period.24 The actual incidence of physical assault is likely higher, as victims may fear consequences for reporting, especially when prison officers are the perpetrators of assault. Violence in prisons causes inmates to become hypervigilant of their surroundings and distrustful of their neighbors in order to adapt to an environment of heightened personal risk.25 Further, inmates are unable to express vulnerability and must portray a “tough” image to adapt to the exploitative environment, which is harmful to an inmate’s mental health. The prison experience fundamentally changes the way former inmates think and process their surroundings due to fears of victimization. After their release, this change further isolates former inmates from their communities and hinders readjustment to civilian life. Without adequate rehabilitation infrastructure to ease the transition to life outside of prison, the psychological changes carry into their everyday lives.
Differences in autonomy over lifestyle within and outside of prison also diminish the ease in reintegration. In prison, inmates have little to no agency in the structure of their day-to-day schedule. When people enter the prison system, they surrender not only their physical freedom but also freedom in decision making. Nearly all decisions are made for them: including the time they wake up, the number of hours they spend in their cell, what they eat, and even with whom they may interact. Further, inmates lack meaningful programming throughout the day, often spending most of their waking hours inside their cells or performing menial tasks. This lack of individual agency coupled with a lack of meaningful programming causes erosion of autonomous decision-making abilities as prisoners increasingly rely on institutional structures to facilitate every aspect of their lives.26 In contrast, ex-prisoners must make hundreds of decisions on their own after they are released. Some are important for settling financially, such as decisions
24 Nancy Wolff and Jing Shi, “Contextualization of Physical and Sexual Assault in Male Prisons: Incidents and Their Aftermath,” Journal of Correctional Health Care 15, no 1 (January 25, 2010): pp 58-77, https://doi org/10 1177/ 1078345808326622
25 Craig Haney, “The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment,” ASPE: Office of the Assistant Secretary for Planning and Evaluation , U S Department of Health and Human Services, 30 Nov 2001, https://aspe hhs gov/reports/psychological-impact-incarceration-implications-post-prison-adjustment-0
26 Haney, “The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment,” ASPE: Office of the Assistant Secretary for Planning and Evaluation , https://aspe.hhs.gov/reports/psychological-impactincarceration-implications-post-prison-adjustment-0
about employment and housing. Others are important for maintaining – or, in some cases, recreating – interpersonal relationships. After their release, these ex-prisoners are faced with a number of decisions every day, which is overwhelming for most. Further, prisoners may lose the ability not only to make decisions but also to limit their own actions. In the prison system, inmates are controlled to such a great extent externally via consequences for actions that their internal judgment and personal limits become less important and may begin to atrophy.27 Prof. Craig Haney, an expert in assessment of psychological effects of living and working in institutional environments, writes,
The process of institutionalization in correctional settings may surround inmates so thoroughly with external limits, immerse them so deeply in a network of rules and regulations, and accustom them so completely to such highly visible systems of constraint that internal controls atrophy or, in the case of especially young inmates, fail to develop altogether. Thus, institutionalization or prisonization renders some people so dependent on external constraints that they gradually lose the capacity to rely on internal organization and self-imposed personal limits to guide their actions and restrain their conduct. If and when this external structure is taken away, severely institutionalized persons may find that they no longer know how to do things on their own, or how to refrain from doing those things that are ultimately harmful or self-destructive.
This, of course, is harmful in civil society where internal control of actions in the absence of guaranteed consequences is necessary for maintaining relationships, finding jobs, and participating in the community.
Former prisoners find it more difficult to restrain certain behaviors after ‘prisonization,’ a type of institutionalization affecting psychological conditions of inmates in correctional settings as they adapt to norms of prison life. The stark differences between life inside and out of prison makes the adjustment to civilian life after adapting to norms of prison difficult, contributing to high recidivism rates. The lingering impacts of prisonization manifest in ways that make adaptation to post-prison life difficult due to “a sudden movement between different social worlds.”28 When the rigid routines of prison life are replaced with freedom of choice, prisoners
27 Haney, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment ”
28 Liam Martin, “‘Free but Still Walking the Yard’: Prisonization and the Problems of Reentry,” Journal of Contemporary Ethnography 47, no 5 (November 16, 2017): pp 671-694, https://doi org/10 1177/0891241
confront the challenges of reintegration. They struggle to readjust to seemingly innocuous events, such as intrusions of personal space. Further, they lack soft skills, such as making small talk. Such traits which provide safety within the prison environment become a barrier to post-prison readjustment.29
Clearly, the lack of meaningful programming and opportunities for autonomous decision making in prisons contrasts starkly with the post-prison world. Within prisons, inmates are spending most of their day in their cells or performing menial tasks, which require little cognitive processing, just to waste time. As one prisoner recalls, Wash your hands all the time. Brush your teeth 5 or 6 times a day Wipe the toilet down. It just gives you something to do while you’re in your cell 22 hours a day. What else is there to do but clean and fix your books? Unfix your books, fix em again. Unfix your sneakers and fix em again. That’s how you kill time. 30
The lack of stimulating activities within the cognitively impoverished prison environment correlates with a documented decline in self-regulation after just three months of prison conditions.31 Meijers et al. document these neuropsychological changes as a result of the prison environment and report findings of negative changes in self-control and executive function. The study tracked prisoners with an average age of 30 at the onset of the study in a penitentiary institution in Amsterdam, with about 54% of the participants incarcerated for violent offenses. The study found that after three months of incarceration, prisoners’ risk-taking behaviors significantly increased32 while attention span significantly deteriorated.33 This finding is socially relevant as reduced self-control and increased risk-taking behavior make prisoners more prone to reoffending, enhancing the probability of recidivism.
The influence of the environment on cognitive functions is well documented, with studies pointing to cognitive enrichment promoting neuroplasticity.34 The brain, and subsequently its
617737814.
29 Deirdre D Caputo-Levine, “The Yard Face: The Contributions of Inmate Interpersonal Violence to the Carceral Habitus,” Ethnography 14, no. 2 (July 2012): pp. 165-185, https://doi.org/10.1177/1466138112457299.
30 Caputo-Levine, “The Yard Face: The Contributions of Inmate Interpersonal Violence to the Carceral Habitus,” Ethnography, https://doi org/10 1177/1466138112457299
31 Meijers et al , “Reduced Self-Control after 3 Months of Imprisonment; a Pilot Study,” Frontiers in Psychology, https://doi org/10 3389/fpsyg 2018 00069
0 005,
34 Laura Petrosini et al., “On Whether the Environmental Enrichment May Provide Cognitive and Brain Reserves,” Brain Research Reviews 61, no 2 (July 23, 2009): pp 221-239, https://doi org/10 1016/j brainresrev 2009 07 002
self-regulation and executive functioning, is sensitive to environmental influences. The prison environment itself reduces released prisoners’ ability to pursue lawful lives, indicating that recidivism is systemic and will continue unless the prison environment is significantly altered. Greater understanding of neuroplasticity and environmental impacts on human behavioral biology suggests that prisons should facilitate rehabilitation rather than simply punishing wrongdoers.
Prisons fail both to decrease criminal tendencies of formerly incarcerated people and to prepare them for meaningful lives outside of prisons. Reentry research has identified a host of challenges, including loss of social networks and long-term psychological effects. High recidivism rates indicate that prisoners are likely to reoffend, suggesting prisons do not have strong specific deterrence value. Due to the detrimental psychological effects of prisons, the prison experience itself may have a criminogenic effect and inherently increase the likelihood of future offenses. The flaws in the current prison system create intrinsic barriers hindering former inmates’ transition back into society. Reforms encompass improving the traditional prison environment, improving rehabilitative programs, and providing non-punitive, productive alternatives to traditional imprisonment. As operators of the criminal justice system, the government ought to institute reforms to improve the prison system in order to best serve its citizens, both the ones inside and outside the criminal justice system. In its current state, the prison system fails to best serve the needs of the ever-growing American population.
Works Cited
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Byrne, James M. “The Effectiveness of Prison Programming: A Review of the Research Literature Examining the Impact of Federal, State, and Local Inmate Programming on Post-Release Recidivism (2019).” National Institute of Corrections, October 25, 2022. https://nicic.gov/effectiveness-prison-programming-review-research-literature-examining -impact-federal-state-and-local.
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Hudson, David L. “8th Circuit Upholds Jail's Postcard-Only Policy, Overcoming 1st Amendment Objection.” The Free Speech Center, January 8, 2018.
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“Mass Incarceration.” American Civil Liberties Union, February 15, 2022. https://www.aclu .org/issues/smart-justice/mass-incarceration.
Meijers, Jesse, Joke M. Harte, Gerben Meynen, Pim Cuijpers, and Erik J. Scherder. “Reduced Self-Control after 3 Months of Imprisonment; a Pilot Study.” Frontiers in Psychology 9 (February 1, 2018). https://doi.org/10.3389/fpsyg.2018.00069
Nazgol Ghandnoosh, Ph.D. and Ashley Nellis. “Growth in Mass Incarceration.” The Sentencing Project, October 18, 2022. https://www.sentencingproject.org/criminal-justice-facts/. Nordstrom v. Ryan, 762 F.3d 903, 906–07 (9th Cir. 2014).
Office of Justice Statistics, Mariel Alper, Matthew R. Durose, and Joshua Markman, 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014) § (2018).
https://bjs.ojp.gov/content/pub/pdf/18upr9yfup0514.pdf.
Park, Katie. “How Prisons in Each State Are Restricting Visits Due to Coronavirus.” The Marshall Project. The Marshall Project, December 8, 2021. https://www.themarsh allproject.org/2020/03/17/tracking-prisons-response-to-coronavirus.
Petrosini, Laura, Paola De Bartolo, Francesca Foti, Francesca Gelfo, Debora Cutuli, Maria Giuseppa Leggio, and Laura Mandolesi. “On Whether the Environmental Enrichment May Provide Cognitive and Brain Reserves.” Brain Research Reviews 61, no. 2 (July 23, 2009): 221–39.
https://doi.org/10.1016/j.brainresrev.2009.07.002
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H F a e E ed he P ca Q e D c e a a C a he J d c a Lind e A. William S anf d Uni e i
Fall 2022
We want a Supreme Court which will do justice under the Constitution and not over it. In our courts, we want a government of laws and not of men.
—Franklin Delano Roosevelt, Fireside Chats: “Court Packing,” 1931I. Introduction: King Court and the Risks of Judicial Review
Americans as a rule mistrust authority, and there is perhaps no authority more repugnant to us than one that cannot be humbled. Though Congress and the Oval Office tend to be frequent sources of popular ire, the Supreme Court has lately entered an unpopular era of its history, in which many of the complaints leveraged against it — when not objecting to the substance of its decisions — identify its lack of clear Constitutional oversight body as a source of problems. There is, after all, nobody superior to it in the Constitution. Nothing can contravene the judgment of the Supreme Court, once it is issued; neither the legislative nor the executive wield the authority to overrule its interpretations of the Constitutional text. Consequently, for those accustomed to viewing the federal government as a system of checks and balances, the scope of the Supreme Court’s authority may come as something of a shock. Indeed, some have called the Court “unchecked,”1 “excessive,”2 and “too powerful,” among other things. Many of these fears come to a head when envisioning a scenario in which the court elects to enlarge its own power by encroaching on the Constitutionally designed lien of another branch. To wit: what stops the Supreme Court from encroaching on other kinds of Constitutional authority, particularly those powers designated for Congress or the executive? That is, what checks the Supreme Court? Such is the volume and intensity of complaints against the Court’s influence that one would be forgiven for marveling that the Framers had not anticipated such problems in its inception.
My object in this essay is to demonstrate, at the very least, that these sorts of complaints are ahistorical. I argue that the Framers of the Constitution viewed the Supreme Court as a constitutively bounded political organ, and one whose restraints were so entwined with its nature as a judicial instrument as to require no enumeration. More specifically, I maintain that the political question doctrine — itself a contemporary instantiation of the English common law doctrine of justiciability — balances the power of the judiciary with that of the executive and legislative by constraining the scope of questions upon which the Court can rule, a restriction
1 E P Krauss, Unchecked Powers: The Supreme Court and Administrative Law, 75 Marq L Rev 797 (1992) Available at: http://scholarship.law.marquette.edu/mulr/vol75/iss4/4.
2 Ryan Doerfler “The Supreme Court rules us Here’s how to curb its power ” The Washington Post September 29, 2020. https://www.washingtonpost.com/outlook/2020/09/29/supreme-court-reform-packing-jurisdiction-democracy/
which has been meticulously observed throughout the Court’s history. Consequently, I conclude that the political question doctrine today has been misinterpreted as a defense against so-called “judicial activism” or partisan gamesmanship, when in fact it instead reflects a more profound tenet of legal theory
Any coherent theory of jurisprudence requires, at minimum, a conception of what sorts of questions the court exists to answer The answer cannot be “all questions.” Some categories we automatically dismiss from consideration include those of pure fact (“Will it rain tomorrow?”) and pure preference (“Which color is best?”) because these do not have anything to do with law. Others include questions which, while perhaps wanting in adjudication, clearly do not belong in a courtroom. In the United States, for example, a daughter cannot sue her mother for a more permissive curfew. A judge confronted with such a suit would rightly reject it, not because the daughter ’s claim necessarily lacks merit, but because to adjudicate that merit requires the judge to veer outside the scope of her role. In other words, because ruling on the appropriateness of family curfews is not the sort of judgment which the institution empowers her to make, to do so would be an illegitimate exercise of her authority. The daughter ’s objection to her curfew is a non-justiciable claim.
To reiterate the same principle in a less fanciful context, a judge cannot strike down an executive veto on a piece of legislature. It does not matter whether the executive’s decision was biased, in some way or another, by a politically objectionable consideration. No one can bring action against a veto in a court of law to receive judgment, and the court has no Constitutional power to hear the case. It does not merely lack the jurisdiction to hear the case; rather, there is no justiciable question to be raised in any court of law over whether the veto is valid. It is valid per se because the Constitution delegates that power to the executive, and thereby exempts all potential exercises from judicial review. Though there may be good reasons to object to the executive’s decisions, the nature of the dilemma being presented exists outside the theoretical space where the Court is licensed to pass judgment. As with the case of the daughter ’s curfew, the judge cannot litigate his choice without violating her constitutional role.
The juxtaposition of these cases already gives shape to a certain theory of jurisprudence. The theory attempts to balance the inherent degree of authority implied by the capacity for
review with the necessity of allowing the other two branches of government room to govern. Further, it situates the judiciary as the equal of the legislature and the executive, insofar as (a) all three receive their authority from the Constitution, and (b) even the judiciary’s considerably hefty powers of review do not enable it to transgress upon any other Constitutionally awarded power. It posits the judge as a source of arbitration, not of political or legislative influence; it also establishes the courtroom as a site where plaintiffs can seek a redress of grievances, not merely against other citizens, but against the government itself. Though these observations may seem banal, it is significant to note that none are givens. In the creation of any judiciary, such questions — about what sorts of cases the courts are formally licensed to adjudicate, and more broadly, what the court’s relationship to the other branches should be — must be answered.
The Framers of the Constitution did not furnish their own system of common law from the ether They worked on a robust (and, many being lawyers themselves, relatively sophisticated) understanding of the English common law, whose traditions dated back hundreds of years when the ink was still wet on the Constitution. The very language of personal rights and liberties which characterizes the American revolution — a language that historian Jack Rakove calls the “native tongue” of the Americas 3 — was adapted from the English philosophy of natural rights, in which rights existed not through any covenant between man and state but were held by men naturally and inviolably 4 Titans of English legal thought make frequent appearances in colonial literature of the period; Bracton, Fortescue, Francis Bacon, and Sir Edward Coke would have been widely recognized and discussed among 17th-century American lawyers, as would Blackstone’s Commentaries and the opinions of Chief Justice Camden.5 The specter of the English system loomed large over the Framers.
Further ensconcing the common law’s role in colonial government, in the wake of the Revolutionary War, the thirteen (newly designated) states adopted reception statutes, or other similar legal measures, which enfolded the English common law up to that point into that state’s legal canon. The New Jersey Constitution, for instance, includes the provision that “... the
3 Jack N Rakove, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION, 290 (1996)
4 Jeffrey D Jackson, Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 OKLA L REV 167 (2010), https://digitalcommons law ou edu/olr/vol62/iss2/1
5 Bernard Bailyn, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION. Cambridge, Massachusetts: Belknap Press 1967
common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law.”6 Even in Connecticut, the sole former colony to refrain from passing a reception statute, the Connecticut Supreme Court nevertheless asserted “the portion of the common law… applicable to the situation in Connecticut should be deemed to be the law of that state.”7 As more states joined the union, each in turn passed some form of reception statute canonizing the legislation or common law of a state which came before it, and thereby enfolding the reception statutes of those predecessor states with regards to the English common law.8
It is notable, moreover, that the Constitution itself explicitly disallows select features of the English common law system rather than explicitly incorporating any. Bills of attainder and general search warrants, both of which the English common law permitted, are specifically restricted under Article I, Section 9 and the Fifth Amendment, respectively This deliberate delineation of those elements not borrowed from the English common law system seems to indicate a default preference for the English system as a rule. After all, if the American system really were a “fresh start,” it would make more sense to begin by listing the (presumably limited) set of features that had carried over. Instead, the presumption held by all — including the Framers — was that the English common law would continue to incline, if not bind, the decisions of the American courts.
It is quite worth asking, therefore, how the English common law tradition defined justiciability, as it would have informed the Framers’ attempt to do the same. In fact, there were two kinds of courts in the English system — courts of equity and courts of law 9 Courts of law heard cases where the remedies consisted of monetary damages, whereas courts of equity heard cases where remedies included injunctions, writes, or specific performance. If a cause of action was raised in the wrong court, it would be dismissed on the grounds of justiciability, i.e., on the grounds that the court was not empowered to rule on the subject at hand. Raising one’s cause of action in the proper court was accordingly a matter of considerable stakes.10
6 N. J. CONST., Art. XXII (1776).
7 Ford W Hall, The Common Law: An Account of its Reception in the United States, 4 Vanderbilt Law Review 791 (1951) Available at: https://scholarship law vanderbilt edu/vlr/vol4/iss4/3 See also: Baldwin v Walker, 21 Conn 167, 180 (1851) Sce also 1 PownLL, op cit sutra note 23, § 52
8 Hall, 1951
9 Hessel E Yntema, Equity in the Civil Law and the Common Law, The American Journal of Comparative Law , Volume 15, Issue 1-2, Winter-Spring 1966, Pages 60–86, https://doi org/10 2307/838860
10 The separation of these two systems is, incidentally, explicitly enshrined in the Constitution itself: Article III, Section 2 begins “To all cases in law and equity, arising under the Constitution ”
This is all to say that justiciability would have been not just a familiar concept, but an extraordinarily familiar one to all those present at the Philadelphia Convention in 1776. Combined jurisdiction — or the combination of courts of equity and courts of law into a single body — would not become the standard in the United States until 1938.11 The idea of a court being restricted in form from offering judgment on a particular subject area, even if the filing raised a question of large Constitutional or statutory significance, would have been ubiquitous at the Framing. It might, like many principles of the common law, even have appeared so obvious as to not require restatement.
Further clarification on the Framers’ position on justiciability comes to light in the Federalist Papers. In the wake of the Philadelphia Convention, Anti-Federalists found much to object to in the Constitution’s construction of the judiciary. In Brutus XI, one opined, “[The judiciary] will give the sense of every article of the constitution… And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.”12 Brutus obviously was operating under the presumption that English common law doctrines and precedents were, if not irrelevant, at least not likely to be treated as binding on the decisions of the new federal judiciary. Indeed, to his point, the Constitution included no reception statute; there was nothing in the text which suggested a restrictive fidelity to the English common law system (except, as noted before, the “argument from negation” with regards to bills of attainder and general search warrants — though the latter ’s prohibition in the Fifth Amendment would not appear until after Brutus’ publication.)
Moreover, Brutus regarded it as self-evident that the court would seek to extend its jurisdiction so as to enhance its power. “When the courts will have a president [precedent] before them of a court which extended its jurisdiction in opposition to an act of the legislature,” he warned, “is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul [sic]?” One can easily see how the lack of a textual safeguard in the
11 Fed. R. Civ. P. 7(a).
12 The Documentary History of the Ratification of the Constitution: Digital Edition, ed John P Kaminski, Gaspare J Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009
Constitution against judicial self-empowerment gave rise to these concerns. Indeed, out of context, it seems an almost glaring omission: while the executive and the legislature are both saddled with checks and balances, the ruling of the judiciary is given ultimate weight on Constitutional matters. Neither executive nor legislature could contravene its judgment, and its ruling held the full force of law What assurances could the Framers have had that the Court would not rule deliberately so as to enhance its own power?
This particular point of contention between Federalists and Anti-Federalists in the Pamphlet Wars foreshadows the need for a “political question doctrine” specifically within the broader umbrella of American justiciability doctrine. Brutus’ concern was not simply that the Court would rule on any particular matter without restraint; it was evident enough to him that the Court would probably not attempt, for instance, to litigate a daughter ’s curfew. But he was concerned with the ways in which an untrammeled judicial authority might attempt to absorb power from the other branches, quickly throwing any “checks and balances” into disarray
The Federalists’ answer locates the political question doctrine squarely within the grounds of justiciability. Though it was true that the Court held the ultimate say in questions over which it exercised jurisdiction, it did not follow that the Court could rule on any subject, or overrule a provision of the Constitution wholesale to tip the balance of power in its favor.
Writing in Federalist No. 78, Hamilton defended the judiciary against Brutus’s accusations of unencumbered self-interest, declaring: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”13 The precedents to which he referred would have included, of course, both English and colonial courts. With those precedents came a doctrine of justiciability which would prohibit the Court from granting itself new Constitutional powers which infringed on the legislative or executive.
More significantly, however, Federalist 78 goes on to confront the more distressing element of Brutus’ argument: that the Courts have no Constitutional limitations on their power. “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature,” Hamilton wrote. “This might as well happen in the case of two contradictory statutes; or it might as well happen in
13 The Documentary History of the Ratification of the Constitution: Digital Edition, ed John P Kaminski, Gaspare J Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009 18:87-94
every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”14 That is, the work of a truly unrestrained judiciary would be immediately recognizable to all, especially insofar as it would obviate the utility of a judiciary itself. A Court characterized by such untrammeled greed would rule on whatever questions intrigued it, without regard for the subject matter or justiciability. Obviously, irrespective of what other problems it may suffer, this neither was nor is the case with the American judiciary.
Hamilton returns to the problem again in Federalist 81, where he addresses directly the question of the Court overstepping its justiciable grounds: “The supposed danger of judiciary encroachments on the legislative authority,” he argues, “which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.”15 Setting aside the last two clauses, which are at minimum less compelling than the first — it seems unlikely that Hamilton was in good faith suggesting a military coup as a solution to judicial overreach — we are left with a telling reference to jurisprudential theory. Hamilton locates his answer for how the Court can be expected to restrain itself from overreach in arguments about the very being of the Court itself: the “general nature” of its power and the “objects to which it relates.” “Objects” almost certainly refer to the canon of justiciable cases the Court was likely to hear, which Hamilton would have recognized as both bounded and rigorously self-policed. As a lawyer in the colonial system, he would have, after all, been well aware of the tendency of courts to throw out cases where it fell outside their powers to offer remedy.
The combination of established precedent with a reasonable expectation of restraint on the Court’s behalf allowed the Federalists to place trust in the federal judiciary as a more or less
14 The Documentary History of the Ratification of the Constitution: Digital Edition, ed John P Kaminski, Gaspare J Saladino, Richard Leffler, Charles H Schoenleber and Margaret A Hogan Charlottesville: University of Virginia Press, 2009. 18:87-94.
15 Ibid
unchecked arm of the federal government. It did not occur to them to explicitly delineate the constraints of justiciability (much less the political question doctrine in particular) in the text of the Constitution because questions of justiciability were so tightly enmeshed in the fundamental theory of how a judiciary works. To create a judiciary at all is necessarily to imagine a set of questions which that body is meant to answer, and to leave some it should not.
Having established that there exists some foundational constraint on what the Supreme Court can do, I now turn to what exactly the Supreme Court is curtailed from doing. Earlier, I named the political question doctrine as a specific remedy to fear about the Supreme Court encroaching on the powers of its fellow branches. What, then, does the political question doctrine actually do?
Though the doctrine has mutated considerably since its inception,16 in its initial form, it maintained that questions concerning the executive or legislative branches’ free exercise of Constitutionally enshrined powers were not justiciable. The Court could not, as in the example put forward in an earlier section, rule on a Presidential veto, however much it disdained the rationale thereof. The veto’s status as a Constitutional power meant that those who exercised it enjoyed complete impunity from judicial review over the validity of their decisions concerning its use. Likewise with the assemblage of the President’s cabinet. The President can choose whatever cabinet members he wants, on any grounds — without respect to fair hiring practices, Title IX, or any other legal consideration — because of his Constitutional right to do so. The assemblage of the cabinet, like the exercise of the veto, is a political question.17
This offers an intuitive answer as to how the Framers might have expected the Supreme Court to remain limited in scope. Since the supremacy of the Constitution was considered a given — Hamilton makes clear that the Court was fully expected to operate under its authority to that document, and not in excess thereof — the bounds of the Constitution’s allowances for the powers of the legislature and the executive were presumed to be honored. That is, the Court would have had no method with which to transgress upon the authority of another branch,
16 Tara Leigh Grove, “The Lost History of the Political Question Doctrine” (2015) Faculty Publications 1796 https://scholarship law wm edu/facpubs/1796
17 Use of the doctrine is rarely so clear-cut as in these examples, at least when it actually reaches the point that the Court must invoke it (though that is likely because the Court only bothers to hear cases where the lines between powers are especially blurry.) For a more complex example of the Court’s retreat from a political question with respect to the Guarantee clause, see Luther v Borden (48 U S 1)
because it lacked a Constitutional instrument with which to do so; its own authority as interpretive body could not sustain such an attempt at seizing power so obviously anathema to the structure of the Constitution itself. This is, perhaps, more in the way of what Hamilton meant when he wrote that the Court exercised “Neither FORCE nor WILL, but merely judgment”: not merely to reassure that the Court lacked military might, but to make a theoretical legal argument about the incomprehensibility of such a body actually thieving the powers of another 18 This much being said, I turn to the actual articulation of the political question doctrine as it first appears in American case law to examine how such expectations manifested in the doctrine itself.
The first instance of the “political question doctrine” in federal American case law comes early, in the form of Marbury v. Madison The ruling of Marbury finds that some of the executive branch’s activities are discretionary in nature, “the performance of which entire confidence is placed by our Constitution in the Supreme Executive, and for any misconduct respecting which the injured individual has no remedy.”19 The President’s exercise of these “certain important powers” leaves him “accountable only to his country in his political character and to his own conscience… whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Chief Justice Marshall’s particular choice of words may lead some to conflate the problem of justiciability with political influence. Because the subjects of the case are “political,” he finds, “the decision of the executive… can never be examinable by the courts.” This use of the term “political” may be mistaken for an assertion of judicial neutrality to politically charged questions. Reading the paragraph in isolation, it is possible to infer that the Chief Justice wrote to bar the Court from adjudicating any cases where the subject had political flavor. Proper examination of the quotation’s context, however, reveals that this is far from what he meant. The assertion that “the subjects are political” should not be read as a declaration of political intrigue as grounds for non-justiciability, but as an affirmation of discretionary acts themselves being non-justiciable.
18 My argument, I should make clear, is not that the Court has always acted with perfect respect to some ideal version of the political question doctrine Rather, I want to fashion, from historical evidence, the sort of theoretical instrument which the Framers might have envisioned as a balancing tool between the Court and the other branches.
19 Marbury v Madison, 5 U S 137 (1803)
Crucially, the following sentence situates his claim firmly in light of discretionary acts. Combined, the two read, “The subjects are political. They respect the nation, not individual rights.” (Emphasis mine.) Interpreted too broadly, Justice Marshall’s statement would imply that the preservation of individual rights is not a political subject, a claim which could hardly be more absurd in the twenty-first century than it was in the eighteenth. Of course, this is not the case. Rather, the opinion observes that the President’s choice of officer for a Cabinet post does not invoke the question of individual rights. The Cabinet officer acts as an extension of the President’s constitutional authority — he has no external (individual) right to the position under the Constitution or any other law, since the Constitution confers upon the President the power to delegate it. The subjects are “political” because they are the explicit discretion of a political branch. Marshall’s other applications of the term follow suit: where the “[e]xecutive possesses a constitutional or legal discretion,” he continues, “nothing can be more perfectly clear than that [its] acts are only politically examinable.” This phraseology situates “political” itself as an antonym for “judicial.” Marshall therefore groups non-justiciable questions under the umbrella of “political” ones because they are the Constitutional domain of the political process. He uses the word in its procedural meaning, as characterization of Congress and the executive in contrast to the judiciary.
Contemporary discourse (especially discourse regarding the political question doctrine) uses “political” to describe policy issues which have been addressed already in the realm of politics. It often concerns the substance of political processes, and not the political processes themselves. Yet the opinion of Marbury reveals that justiciability doctrine does not conceive of politics in those terms. Nor, accordingly, does the infusion of political issues in a case per se create problems of justiciability. And the behavior of the Court has almost always reflected this view: it partakes in politically significant inquiry all the time. American history is richly laden with the fruit of the Court’s political overtures, not the least of which is Brown v. Board of Education — a ruling widely recognized nowadays as one of the great triumphs of the American judiciary Roe v. Wade, Obergefell v. Hodges, and Citizens United v. FEC all, similarly, deal with questions of political import. To say that the Court attempts to skirt hotly contested political problems on the grounds that they are hotly contested is to throw out huge portions of the federal canon wholesale.
It should by now be apparent that the Framers would have viewed any sort of political question doctrine as an extension of justiciability doctrines drawn from the English common law, and as a balancing constraint on the Supreme Court in defense of the legislature and executive. Though they might not have referred to it as the “political question doctrine” per se, their frame of reference for how law operated surely would have included such functional limitations on the courts’ capacities for corrective review. Yet contemporary interpretations of the political question doctrine often mistake its application as one prohibiting the Supreme Court from ruling on any matters of political or partisan interest, which is patently not the case (or at least, would not have been how the Framers understood it). Indeed, the political question doctrine as it emerged in the aftermath of Ratification explicitly and specifically operated as insurance for the balance of powers between government branches.
The strongest objection to be made against my argument as presented above is as simple as it is powerful: if the Framers believed it, why did they leave it unsaid? Such challenges are hard to answer. All of the Framers would have been well aware of the importance of articulating checks and balances explicitly in the Constitution itself, considering how suspicious they were of a government’s tendency to enhance its own authority when left unpoliced. As to this, I can possibly say that, first, the preponderance of evidence suggested that common-law traditions would render limited justiciability in the case of political questions a foregone conclusion, as I have argued. That such expectations were not declared is not particularly remarkable, either When constructing a document as important as the Constitution, one would imagine an impulse to only inscribe those commandments absolutely worth writing.
The only other answer I can offer is that the Framers did not think about law in the same way we do. It is impossible for any of us to know what assumptions of our own will become relevant in disputes with our ideological descendants, or even to fully explain every assumption undergrounding our arguments when we make them. Yet the Framers were not American lawyers of the twenty-first century, and they did not think as their descendants would. In particular, legal proceduralism, which came into vogue in the late twentieth century,20 tended to conflict with those of the Framers. Legal proceduralists view the Court as an instrument responsible for
20 Paul MacMahon, “PROCEDURALISM, CIVIL JUSTICE, AND AMERICAN LEGAL THOUGHT ” Penn Law: Legal Scholarship Repository, 2013.
https://scholarship law upenn edu/cgi/viewcontent cgi?article=1038&context=jil
interpreting the law as written, and for cohering various parts of the federal canon while exercising minimal interference in the actual creation of law itself. The legal proceduralist sees the Court as a scientific instrument more than anything else: in an ideal ruling, it hears the case, “witnesses” the truth of the law as it applies in that instance, and transcribes its finding. Any transformative stamp has been removed from the process altogether
The Framers, however, understood the law more fluidly They viewed the Constitution as one piece of a “fundamental law” which existed, contrary to positivist conceptions, outside the dictate of any one branch of the government. 21 This fundamental law existed in a theoretical space similar to how many imagine political theory: a floating, intangible body of ideas, manifested through the descriptive structures of government. Written Constitutions were a part of this fundamental law, as were the various laws passed by legislature and the common law issued by judges; it touched all parts of the legal system. Yet in addition to its textual manifestations, much of this fundamental law was unseen, and the task of the government was therefore to “discover” it.22 (One will notice how nicely this coheres with the aforementioned Enlightenment-Era ideas of an unenumerated body of “natural rights.”) Consequently, the Framers would not necessarily have regarded textual inscription as a prerequisite to consider some part of the law significant.
It is debatable how much of this remains relevant to the question of what the political question doctrine means today. It is debatable, too, whether the Supreme Court in its new, proceduralist incarnation necessarily considers itself bound by the Framers’ jurisprudential philosophy (or, for that matter, whether it should). I do not attempt to prescribe how the Supreme Court should interpret either the Constitution or the considerable case law which came after it. I merely hope to answer a theoretical question about the federal balance of powers as it appears in the Constitution, and to highlight one form of fettering that lies upon the so-called “unchecked” Court. Those who claim the Supreme Court lacks any formal constraints on its power (Brutus included) are making an argument that is as ahistorical as it is misinformed, and such accusations feed from erroneous interpretations of both practical and theoretical elements of law The
21 Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, MA: Harvard University Press, 2018)
22 Jonathan Gienapp, “Written Constitutionalism, Past and Present.” Law and History Review May 2021, Vol. 39, No 2 Cambridge University Press
Supreme Court is not, and never has been, the seat of kings; it is an organ of a republic, and like all organs, it works in concert with its sisters. Only the harmony of the concert can be in doubt.
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Maj P ic
Ka he i e Zh S a f d U i e i
Fall 2022
Blazing wildfires, extended droughts, and extreme storms—while the severity of these events were once the subject of fiction, they sadly have become the norm in our current age, outcomes of human-caused climate change.1 As the consequences of climate change present themselves, the US government has continually struggled to come to a consensus in finding a solution. These concerns underscore the decision made in West Virginia v. Environmental Protection Agency (EPA), a landmark ruling from the 2022 Supreme Court term that complicates the future of climate policy in the United States.2
In West Virginia, the Supreme Court decided 6-3 that the EPA is not permitted to set carbon dioxide emission caps—caps which prompted West Virginia to sue them—that force “generation shifting.”3 The term “generation shifting” denotes a power plant’s changes in sources of energy, such as from a higher-emitting resource like coal to a lower-emitting resource like wind or solar, as opposed to methods of energy generation.4 This decision returns the authority to Congress to pass further legislation that supports this with unambiguous statutory support in the future.5
The Court holds that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’… but a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”6
The Court is right that climate change is “the crisis of the day”; even the slightest delay in action can have huge-ranging implications.7 In 2022, a UN report written by 270 leading scientists described the effects of climate change on ecosystems and human well-being as
1 “The Effects of Climate Change.” NASA NASA, https://climate.nasa.gov/effects/.
2 Alice C Hill, “What Does the Supreme Court's Decision in West Virginia v EPA Mean for U S Action on Climate?” Council on Foreign Relations Council on Foreign Relations, July 19, 2022, https://www cfr org/blog/what-does-supreme-courts-decision-west-virginia-v-epa-mean-us-action-climate(accessed September 30, 2022).
3 West Virginia v EPA, 597 U S 28, 31 (2022)
4 West Virginia v EPA, 597 U S 1 (2022) (Syllabus)
5 West Virginia, (2022), 31
6 West Virginia, (2022), 31
7 Jim Palardy and Courtney Durham, “U N Report Shows Increased Climate Change Impacts on Humans and Nature ” The Pew Charitable Trusts The Pew Charitable Trusts, March 2, 2022, https://www.pewtrusts.org/en/research-and-analysis/articles/2022/03/02/un-report-shows-increased-climate-change-i mpacts-on-humans-and-nature (accessed September 30, 2022)
“accelerating and worsening” and recommended that “our efforts to adapt to risks and withstand hazards must outpace both current and predicted climate change.”8 And yet, the Supreme Court’s decision in West Virginia vs. EPA sets a severe limitation on an agency that cannot afford to make further concessions.9
Beyond restricting the EPA, this ruling’s significance comes from its jurisprudence; it is the first time that the Supreme Court has used “major questions doctrine”—as explicitly stated—in their ruling.10 While the Justices have not come to a consensus on whether this doctrine (also referred to as the major issues doctrine) is a new idea, indisputably, West Virginia is the first case that states the doctrine verbatim.11 According to Congress, the “major questions doctrine” requires government agencies to only act on issues of major national significance with “clear statutory authorization.”12 Instead, if the legislation is determined to be “unclear,” the power is returned to Congress and their constituents to vote on new legislation that satisfies these evidentiary requirements.13 Using this doctrine, the Court determined that carbon emissions restrictions are too politically and economically significant to delegate such authority to the EPA.14 Inevitably, there are limitations on how Congress can interpret and apply restrictions; this ability to limit is frequently delegated to government agencies (such as the EPA, FTC, FCC, FDA, etc.), but sometimes, this delegation is disputed by using major questions doctrine.15
Controversy arises due to how this doctrine is applied, namely, in circumstances in which expertise is vital. More significantly, due to the lack of objective standards to determine a “major question”—in part because there is no precedent that has ever used the term in a Supreme Court opinion—there is no clear guidance on how to apply this legal theory 16 Therefore, when West Virginia was determined to concern a “major question,” the Court also found the EPA failed to
8 Palardy and Durham, “U N Report Shows ”
9 Hanalel, “Trump's Anti-Environment Judicial Nominee…”
10 West Virginia v EPA, 597 U S 1-33 (2022) (Kagan J dissenting opinion)
11 West Virginia, (Kagan J dissenting opinion), 1
12 U S Congress, “The Major Questions Doctrine ” CRS Reports, April 6, 2022, https://crsreports congress gov/product/pdf/IF/IF12077 (accessed September 30, 2022)
13 U S Congress, “The Major Questions Doctrine ”
14 West Virginia, (2022), 31
15 U.S. Congress, “The Major Questions Doctrine.”
16 West Virginia, (Kagan J dissenting opinion), 1
provide clear evidence to support their policy.17 This decision has effectively taken down Obama-era addendums to the Clean Air Act, reducing the authority of the EPA. 18
In a concurring opinion, Justice Neil Gorsuch (Justice Alito joining) defended a strong application of the major questions doctrine, stating a history of precedent in the Court of utilizing clear statement rules.19 Justice Elena Kagan’s dissenting opinion (joined by Justice Stephen Breyer and Justice Sonia Sotomayor) questioned this assumption, claiming that the doctrine is a way to reframe history and limit executive agencies; the dissenting opinion outlined the possible implications of setting this precedent.20
Inevitably, this case is politically charged; three of the Justices were nominated by a single presidential administration that was characterized by the Center for American Progress as having a “deregulatory, anti-environment agenda.”21 Justice Kagan implied that the Court’s conservative majority was influenced to erroneously decide West Virginia to support their political beliefs, writing, “The Court has obstructed EPA’s effort from the beginning,” hypothesizing this is due to opposition to the green energy movement.22
Despite the Court’s assertion that their ruling largely concerns decision-making authority as opposed to climate change, the Court’s choice to reverse the decision given by the Court of Appeals of the District of Columbia was described by Anita Hill to “spell delay for U.S. climate action when time is in short supply.”23
Although major questions doctrine has been mentioned, defined, and quoted exhaustively in West Virginia, these definitions are highly contested, and beyond that, there is no consensus on how this doctrine should be applied.24 Most judiciaries agree that laws must be
17 West Virginia, (Syllabus), 3.
18 Philip A Wallach, “Will West Virginia v EPA Cripple Regulators? Not if Congress Steps Up ” Brookings Brookings, July 1, 2022, https://www brookings edu/research/will-west-virginia-v-epa-cripple-regulators-not-if-congress-steps-up (accessed September 30, 2022).
19 West Virginia v EPA, 597 U S 1 (2022) (Gorsuch J concurring opinion)
20 West Virginia v. EPA, 597 U.S. 1-33 (2022) (Kagan J. dissenting opinion).
21 Billy Corriher, “Trump's Anti-Environment Judicial Nominees Could Lead to Polluted Air and Water ” Center for American Progress Center for American Progress, February 1, 2017, https://www americanprogress org/article/trumps-anti-environment-judicial-nominees-lead-polluted-air-water/ (accessed September 30, 2022)
22 West Virginia v EPA, (Kagan J dissenting opinion), 3
23 West Virginia (2022) ; Hill, “What Does the Supreme Court's ”
24 Jonas J. Monast, “Major Questions About the Major Questions Doctrine,” Administrative Law Review 445, no. 68 (2016): pp 445-489, http://www administrativelawreview org/wp-content/uploads/2019/02/Monast 68 3 pdf
specific, and regulatory agencies must not act outside of their prescribed duties, but this common practice is interpreted in many ways, as the major questions doctrine is based on a very specific interpretation of the legal canon.25 These differing accounts of the doctrine are important to keep in mind when analyzing the evidence in West Virginia — the “major issue” determination requires a higher standard for textual clarity
To showcase the ongoing debate on this topic, the District Court case, Chamber of Commerce of the United States v. National Labor Relations Board (NLRB), is a relevant precedent. 26 In Chamber of Commerce, the Chamber of Commerce questioned the NLRB’s right to file unfair labor practice charges or petitions, as the Chamber believed the legislation only allowed the organization to address these issues upon request.27 Jonas J. Monast writes in Administrative Law Review that the Chamber ’s decision regarding how employers communicate workers’ rights makes the case interstitial, while the NLRB's interpretation of the legislation qualifies the case as a major issue.28 Therefore, in this case, “there is little distinction between those issues that are considered ‘major ’ and those that are ‘interstitial.’” 29 In a later section, this discussion will be continued in further detail in relation to West Virginia.
To understand the reasoning in West Virginia, it is essential to be familiar with the landscape of climate policy in the United States. West Virginia is especially magnanimous when considering the drastic changes that attitudes towards the climate have undergone in the last century. Although climate change is now a “major issue” according to the judicial authority, this has not always been the case. In the mid-to-late 1900s, many pieces of air pollution legislation passed quietly with huge bipartisan margins.30 For example, the Air Pollution Control Act of 1955, the first piece of federal legislation passed regarding air pollution in America, authorized an air pollution regulation and training program for the U.S. Public Health Service office (instead of punishing polluters).31 In 1963, the Clean Air Act was proposed by Congress, introducing the idea of eliminating and restricting air pollution throughout the country. Such programs were
25 Monast, “Major Questions About , ” 473
26 Chamber of Commerce v NLRB, 856 F Supp 2d 778 (D S C 2012)
27 Chamber of Commerce v NLRB, 856 F Supp 2d 778 (D S C 2012)
28 Monast, “Major Questions About , ” 473
29 Monast, “Major Questions About , ” 473
30 Christopher J Bailey, Congress and Air Pollution: Environmental Policies in the USA (Manchester, UK: Manchester University Press, 1998), 84.
31 Bailey, Congress and Air Pollution, 84-117
administered by the U.S. Secretary of Health, Education, and Welfare and the Air Pollution Office of the U.S. Public Service — until the EPA was created in 1970. 32
The Clean Air Act of 1970, signed into law by former President Richard Nixon, is now considered the primary federal air quality law 33 This version of the Act was an amended version of the 1963 legislation, greatly expanding the law to include comprehensive state and federal regulations.34 It also established new standards like the National Ambient Air Quality Standards, New Source Performance Standards, and National Emissions Standards for Hazardous Air Pollutants — all of which are still in use today.35 The 1970 Act additionally strengthened federal enforcement authority and outlined more specific guidelines for the enforcement of emission standards.36 As the 20th-century GOP agenda was in favor of environmental conservation, a bipartisan consensus was much easier to reach back then, and as a result, these types of legislation were usually passed with no controversy 37 Even up until the 1990s, air regulation was a relatively uncontested issue, as Congress passed an amendment to the Clean Air Act in 1990 with sweeping bipartisan majorities.38
Within the 21st century, there has been a dramatic change in how conservationism, clean air policy, and carbon caps are viewed by the public and members of the GOP, especially as these terms are now correlated with the “hot-button” issue of climate change.39 For instance, in 2013, a Pew Research poll determined that there are ever-expanding partisan divides on environmental policy; 84% of Democrats, 61% of Non-Tea Party Republicans, and just 25% of Tea Party Republicans say there is solid evidence of global warming.40
To explain this partisan divide, it is important to analyze changing attitudes toward the environment in the 21st century. In the mid to late 2000s, astronomical advances in renewable
32 EPA Alumni Association, “Bill Ruckelshaus and Some of His Closest Aides Recall the Opening Months of the New Agency in 1970 ” EPA Alumni Association EPA Alumni Association, September 24, 2013, https://www.epaalumni.org/history/video/interview.cfm?id=16&c=3 (accessed September 30, 2022).
33 Bailey, Congress and Air Pollution, 160-207
34 Bailey, Congress and Air Pollution, 160-207.
35 Bailey, Congress and Air Pollution , 164-207
36 Bailey, Congress and Air Pollution , 164-207
37 Bailey, Congress and Air Pollution, 84-117
38 Bailey, Congress and Air Pollution, 164-207
39 Pew Research Center, “GOP Deeply Divided over Climate Change ” Pew Research Center - U S Politics & Policy Pew Research Center, November 1, 2013, http://www.people-press.org/2013/11/01/gop-deeply-divided-over-climate-change/ (accessed September 30, 2022).
40 Pew Research Center, “GOP Deeply Divided over Climate Change ”
energy emerged, making renewable energy sources more accessible and affordable.41 In reaction to this trend, the GOP changed its agenda to disseminate the idea that environmental protection harms economic interests, and therefore is contrary to conservative values. However, economics may not explain this trend fully. For example, energy companies like BP and Shell—companies most affected economically by climate policy—supported the Inflation Reduction Act (2022), a significant move towards the renewable energy transition. Additionally, many economists have determined that renewable energy has great potential to be economically beneficial.42 Paul Krugman, an opinion columnist for The New York Times, hypothesizes that Republican adherence to traditional energy sources is due to the partisan “culture war,” a conflict between Republicans and Democrats to dominant American culture, which has conflated anti-environment propaganda with conservative values.43
Regardless of the reasoning, the bipartisan divide on environmental policy has continued to widen in recent years. In recent years, the Green New Deal, a bill written by the Green Party in 2006 and adopted by Democrats in 2018, has received fierce opposition from Republicans.44 This bill, which calls for sweeping action to address climate change and economic inequality, has regained prominence in the 2010s-2020s with Representatives Alexandria Ocasio-Cortez (D-NY) and Ed Markey (D-MA) sponsoring the bill.45 The Green New Deal, along with other failed climate bills, showcase that the political landscape of today has moved away from bipartisan support for environmental conservation. With this landscape in mind, states that have traditionally supported non-renewable sources are now becoming the political playgrounds for climate policy. Notably, West Virginia has largely opposed renewable energy—coal mining is a deep part of the state’s culture and
41 Max Roser, “Why Did Renewables Become So Cheap so Fast?” Our World in Data Our World in Data, December 1, 2020, https://ourworldindata.org/cheap-renewables-growth (accessed September 30, 2022).
42 Ceres, “Business Support Statement for the Inflation Reduction Act ” Ceres, 2022, https://www.ceres.org/sites/default/files/Business%20Support%20for%20Urgent%20Federal%20Investments%20in %20U S %20Clean%20Energy%20Manufacturing%20and%20Deployment%20for%20Energy%20Security%20and %20Affordability.pdf (accessed September 30, 2022).
43 Paul Krugman, “Why Republicans Turned against the Environment ” The New York Times The New York Times, August 15, 2022, https://www.nytimes.com/2022/08/15/opinion/republicans-environment-climate.html (accessed September 30, 2022)
44 Salvador Rizzo, “Analysis | What's Actually in the 'Green New Deal' from Democrats?” The Washington Post WP Company, June 13, 2019, https://www washingtonpost com/politics/2019/02/11/whats-actually-green-new-deal-democrats (accessed September 30, 2022)
45 Robert Schroeder, “The 'Green New Deal' Isn't Really That New ” MarketWatch MarketWatch, February 12, 2019. https://www.marketwatch.com/story/the-green-new-deal-isnt-really-that-new-2019-02-11 (accessed September 30, 2022) ; Rizzo, “Green New Deal ”
history, with coal accounting for 88% of West Virginia’s energy consumption. 46 In 2020, the coal industry made up 11,418 of the state’s jobs.47 Many West Virginians fear unemployment rates rising if the clean energy transition goes forward.48 Due to these factors, Senator Joe Manchin (D-WV) opposed bills like the Biden administration’s “Build Back Better” plan that focus on the clean energy transition.49 Manchin’s opposition is largely credited as a major reason for the bill’s failure.50 Therefore, West Virginia v. EPA is politically significant not just for the partisan implications, but further, for the projected effects across the country, especially regarding West Virginia’s economy and culture.
West Virginia v. EPA follows a long line of Supreme Court precedents associated with the EPA and the Clean Air Act. These rulings worked to clarify the bounds of the EPA’s jurisdiction, as the Court ruled either to expand or to restrict the EPA’s power. In 1984, the EPA issued permits in Chevron U.S.A., Inc. v. NRDC which allowed existing energy plants (which contained several pollution-emitting devices) to install and modify one piece of equipment which caused air pollution if overall carbon emissions were not affected. 51 The Court ruled the EPA was not obeying its duty by giving these permits to energy plants, as it was the intention of the 1977 Clean Air Act to improve air quality, not to maintain it. 52 Although the EPA had to change its practices, this ruling expanded the EPA’s ability to restrict energy plants from polluting.53 In 2007, Massachusetts v. EPA also significantly expanded the EPA’s authority.54 The Court mandated that it was the EPA’s responsibility to regulate greenhouse gas emissions and could be
46 Philip Bump, “Analysis | A Small Part of the Economy of a Small State Is Poised to Shape the Future of the World.” The Washington Post. WP Company, October 18, 2021, https://www washingtonpost com/politics/2021/10/18/small-part-economy-small-state-is-poised-shape-future-world (accessed September 30, 2022).
47 U S Energy Information Administration, “Annual Coal Report October 2021 - Energy Information Administration.” U S Energy Information Administration , U.S. Energy Information Administration, https://www eia gov/coal/annual/pdf/acr pdf (accessed September 30, 2022)
48 Autumn Proudlove, “Coal Dependency in West Virginia: A Brief History and Future Outlook.” DSIRE Insight DSIRE Insight, November 29, 2021,
https://www dsireinsight com/blog/2021/11/22/coal-dependency-in-west-virginia (accessed September 30, 2022)
49 Proudlove, “Coal Dependency in West Virginia ”
50 Proudlove, “Coal Dependency in West Virginia ”
51 Chevron U S A , Inc v NRDC, 467 U S 837 (1984)
52 Chevron U S A , (1984)
53 Chevron U.S.A., (1984)
54 Massachusetts v EPA, 549 U S 497 (2007)
sued for not carrying out this duty.55 Then, in 2015, the EPA’s power was partially restricted in Michigan v. EPA, in which the Supreme Court held that the EPA needed to consider unreasonable costs when enforcing carbon caps.56 Therefore, they ruled that the EPA applied the Clean Air Act inappropriately in regulating greenhouse gas emissions from motor vehicles.57
West Virginia’s ruling also draws on precedent in which the major questions doctrine was applied. In her West Virginia dissenting opinion, Justice Elena Kagan brought up FDA v. Brown & Williamson Tobacco Corp., Gonzales v. Oregon, and National Federation of Independent Business v. OSHA as relevant cases.58 In FDA v. Brown & Williamson Tobacco Corp., the Court held that it was outside the jurisdiction of the FDA to regulate tobacco products and that Congress did not intend for the FDA to have this power. 59 Then, in Gonzales v. Oregon, the Court rejected the Attorney General’s authority to rescind doctor ’s registrations for facilitating assisted suicide, as specialized questions need expert opinions.60 Lastly, in National Federation of Independent Business v. OSHA, the Court stayed the rule created by OSHA to mandate COVID-19 vaccines.61 These cases model how the Supreme Court has determined expert status and jurisdiction of government agencies under the executive branch in the past, helping to determine the scope of the EPA’s jurisdiction in West Virginia and whether the EPA qualifies as a necessary expert.
West Virginia v. EPA follows recent interpretations of the Clean Air Act, starting with the EPA’s change of strategy in the mid-2010s. In 2015, the EPA introduced the Clean Power Plan rule, citing Section 111(d) of the Clean Air Act. 62 Although it was named the “New Source Performance Standards Program,” the rule authorized the regulation of carbon dioxide emissions
55 Massachusetts v. EPA, (2007); Linda Greenhouse, “Justices Say E.P.A. Has Power to Act on Harmful Gasses.” The New York Times The New York Times, April 3, 2007, https://www.nytimes.com/2007/04/03/washington/03scotus.html (accessed September 30, 2022).
56 U S Congress, “The Major Questions Doctrine ” CRS Reports U S Congress, April 6, 2022, https://crsreports.congress.gov/product/pdf/IF/IF12077 (accessed September 30, 2022).
57 U S Congress, “The Major Questions Doctrine ” CRS Reports U S Congress, April 6, 2022, https://crsreports congress gov/product/pdf/IF/IF12077 (accessed September 30, 2022)
58 West Virginia (Kagan J dissenting opinion), 1-14
59 FDA v Brown & Williamson Tobacco Corp, 529 U S 120 (2000)
60 Gonzales v Oregon, 546 U S 243 (2006)
61 National Federation of Independent Business v Department of Labor, Occupational Safety & Health Administration, 595 U.S (2022)
62 West Virginia, (Syllabus), 1
from existing coal and natural gas-fired power plants.63 While state governments set the rules regarding emissions, the EPA enforced restrictions and determined acceptable emission limits. 64 The EPA derived this emission limit through the “best system of emission reduction” or BSER, which utilized three types of “building blocks” in their decision — heat rate improvements, generation shifting from coal to natural gas plants, and generation shifting from coal and gas plants to renewables. Using these factors, the EPA found a level they determined to be a “reasonable” amount of shift, based on balancing how much electricity these new sources could produce with projected cost increases and energy capacity reductions.65
The Supreme Court strongly opposes the EPA’s BSER, writing that the EPA’s applicable emissions performance rates were “so strict that no existing coal plant would have been able to achieve them without engaging in…generation shifting [switching to renewable sources of energy].”66 In 2016, the Court stayed the Clean Power Plan. In 2019, the Supreme Court decided that the Clean Power Plan had exceeded the Agency’s statutory authority under Section 111(d) of the Clean Air Act, as they were applying their standards based on generational shift as opposed to individual facility equipment and practices.67 The EPA agreed that the Clean Power Plan fell under the major questions doctrine, agreeing to replace the plan with a different Section 111(d) regulation, called the Affordable Clean Energy (ACE) rule in 2018. 68 In this rule, the EPA returned to BSER standards based on equipment upgrades and operating practices to improve heat rates.69
The decision to transition to the ACE rule failed to evade the controversy that followed the Clean Power Plan, as numerous states and private parties filed petitions in the D.C. Circuit to prevent ACE from being enacted as well. 70 These parties viewed the move by the EPA as a rephrasing of “building block” one of the Clean Power Plan. The Court of Appeals held that this adjustment to the Clean Power Plan was still a mistaken reading of the Clean Air Act, as
63 West Virginia, (Syllabus), 1.
64 West Virginia, (Syllabus), 1-2
65 West Virginia, (Syllabus), 1-2.
66 West Virginia, (Syllabus), 2
67 West Virginia, (Syllabus), 2
68 Environmental Protection Agency, “Proposal: Affordable Clean Energy (ACE) Rule ” EPA Environmental Protection Agency, April 13, 2022, www epa gov/stationary-sources-air-pollution/proposal-affordable-clean-energy-ace-rule (accessed September 30, 2022)
69 West Virginia, (Syllabus), 3.
70 West Virginia, (Syllabus), 3
generation shifting in their opinion was not a “system of emission reduction,” therefore, they remanded the ACE rule as well. Shortly after this decision, the Court of Appeals agreed to “stay its vacatur” of the EPA’s repeal of the Clean Power Plan while the EPA considered whether they wanted to conceive of a new Section 111(d) rule.71 Due to the EPA’s willingness to compromise and continual revision of plans, the government argued the EPA had no Article III standing (no conflict of interest).72 The Court denied this claim.73
In West Virginia, the Court ruled based on the aforementioned factors, largely based on their opposition to the EPA’s ACE rule. The Court ruled that the EPA had overstepped its bounds by requiring the West Virginia government to transition to renewable energy, as it determined that the EPA’s application of the Clean Air Act fell outside the scope of its jurisdiction. Therefore, while the EPA is responsible to regulate carbon dioxide emissions at new and existing power plants, the Court ruled that they cannot enforce “generation shifting” from higher to lower carbon resources to do so.74 In their ruling, the Court cites precedents of the major questions doctrine, in which “extraordinary cases” whose “history and the breadth of the authority” and “economic and political significance” of the given issue provide “reason to hesitate before concluding that Congress meant to confer such authority” must therefore be returned to Congress.75 This precedent includes the aforementioned cases.76
The Court writes, “Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims.” 77 The Court’s main contention is that before 2015, the EPA only applied measures to reduce pollution by ensuring that existing plants operate more cleanly, as opposed to encouraging the shift to renewable energy.78 Therefore, in the Court’s view, any interpretations of Section 111(d) that go beyond regulating existing practices, such as the Clean Power Plan or the ACE, are not within the authority of the EPA but should be decided by Congress. 79 These annulled plans would include cap-and-trade mechanisms, in which companies are allowed to emit to a certain capped
71 West Virginia, (Syllabus), 3.
72 West Virginia, (Syllabus), 3
73 West Virginia, (Syllabus), 14
74 West Virginia, (Syllabus), 3
75 West Virginia, (Syllabus), 3
76 West Virginia, (Kagan J dissenting opinion), 1-14
77 West Virginia, (Syllabus), 4
78 West Virginia, (Syllabus), 4.
79 West Virginia, (Syllabus), 4
level, after which they must pay a fine for excess pollution.80 The “trade” part indicates that under this plan, companies compete to buy contracts to be able to emit a certain amount of carbon dioxide. In this type of plan, capital market forces are intended to discourage pollution.81
In defense of their practices, the EPA argued that they have a history of applying Section 111 in line with the Clean Power Act or ACE. 82 They cited the 2005 Mercury Rule, in which the EPA relied on cap-and-trade mechanisms to reduce emissions. 83 The Court made a distinction that this case was again a modification of practices instead of a shift of energy source, and therefore, was not a valid precedent.84 The Court clarifies that the EPA’s role is to find the best system of emission reduction and ensure that the degree of emission limitation achievable of the best system is applied.85 In their ruling, the Court explicitly states their belief that switching from coal to renewable energy is not applicable under this “best system” responsibility.86 They write that they “find it highly unlikely’ that Congress would ‘leave to agency discretion the decision of how much coal-based generation there should be over the coming decades.’”87
In Kagan’s dissent, the Justice pushes back against the majority opinion to question whether the Justices are misapplying doctrine to further partisan agenda, especially at such a crucial time for the climate movement. 88 She writes, “today, the Court strips the EPA of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”89
Justice Kagan questions the Court’s application of the major questions doctrine as it seems to further partisan agenda, arguing that the case is truly about climate change, not governing authority. Her argument is twofold — the major questions doctrine that the Court cites in the majority opinion is not as clear-cut and well-founded as they claim; instead, the Justices are taking advantage of the ambiguity of a specific interpretation of doctrine when it suits their goals, particularly to limit the power of the EPA. 90
80 Environmental Defense Fund, “How Cap and Trade Works ” Environmental Defense Fund Environmental Defense Fund, 2022, https://www.edf.org/climate/how-cap-and-trade-works (accessed September 30, 2022).
81 Environmental Defense Fund, “How Cap and Trade Works ”
82 West Virginia, (Syllabus), 5.
83 West Virginia, (Syllabus), 5
84 West Virginia, (Syllabus), 5
85 West Virginia, (Syllabus), 3
86 West Virginia, (Syllabus), 5
87 West Virginia, (Syllabus), 5
88 West Virginia, (Kagan J dissenting opinion), 1
89 West Virginia, (Kagan J. dissenting opinion), 1.
90 West Virginia, (Kagan J dissenting opinion), 28
First, as evidence for this bias, Kagan reviews the measures the Court has taken to block climate legislation in recent years.91 Justice Kagan references Obama-era climate legislation, writing that in 2015 “right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: never before had the Court stayed a regulation then under review in the lower courts.”92
Then, Justice Kagan moves to analyze the Court’s application of the major questions doctrine. For the Court’s decision to be founded, they must have determined that climate change is a major issue, the major issue doctrine is valid legal doctrine, and that the major issue doctrine applies in this case. Justice Kagan does not dispute the Court’s claim that climate change is significant, but instead, she argues that the interpretation of the major questions doctrine in their decision is in bad faith, as it was never meant to be so strictly applied.
As evidence in her dissent, Kagan claims that — in the context of the ever-increasing polarization of her Court — that it seems that the other Justices are prioritizing political aims instead of textual evidence. 93 To prove her point, Kagan argues that the text of the Clean Air Act and of the precedent that supposedly supports their application of the major questions doctrine has been wrongly interpreted. 94
First, Kagan argues that the Clean Air Act did authorize the EPA to set carbon caps. In analyzing the limits of existing legislation, Kagan argues that Congress intended to give this power to the EPA because the goal of the Clean Air Act was to “‘speed up, expand, and intensify the war against air pollution’ in all its forms.” 95 Following this goal, the Act mandates in Section 111(d) that the EPA must set emissions levels for pollutants not covered by the NAAQS or HAP programs “including carbon dioxide,” describing regulatory activity in “expansive terms.”96 In opposition, the Court states that the wording in the Clean Air Act only specifies “air pollutants,” a category to which they do not believe carbon dioxide belongs.97 Justice Kagan responds by citing that Section 111(d) specified that if a pollutant falls outside of those programs, the EPA is required to set a new level of acceptable emissions for currently operating power plants.98 In
91 West Virginia, (Kagan J dissenting opinion), 1
92 West Virginia, (Kagan J dissenting opinion), 3
93 West Virginia, (Kagan J dissenting opinion), 28
94 West Virginia, (Kagan J dissenting opinion), 28
95 West Virginia, (Kagan J dissenting opinion), 5
96 West Virginia, (Kagan J dissenting opinion), 6
97 West Virginia, (2022), 14.
98 West Virginia, (Kagan J dissenting opinion), 6
addition, carbon pollution has been proven to significantly damage human health through its effects on the ozone, and thus would generally fall under the EPA’s jurisdiction to limit, carbon pollution is most definitely an air quality issue under current scientific consensus.99
Kagan returns to Section 111(d) to argue that the provision is intended for the EPA to decide which is the “best system of emission reduction” that has been “adequately demonstrated.”100 Forms of renewable energy from wind to solar have passed this bar of “adequate demonstration” and are widely used in both the individual and commercial sectors.101
In Utility Air Regulatory v. EPA, the Court wrote that allowing the EPA to proceed would require the rewriting of “other unambiguous statutory terms” to reflect “precise numerical thresholds,” a standard that was carefully met in West Virginia through the EPA’s BSER equations.102
In their decision, the Court brings up Section 112 of the Clean Air Act, which states that the EPA is directed to impose “technology-based standards for hazardous emissions,” held in Alaska Dept. of Environmental Conservation v. EPA 103 The Court decided that the EPA must apply a technology-based approach to ensure that regulated firms adopt appropriate cleanup technology.104 Therefore, it falls under the jurisdiction of the EPA to encourage the use of technology — such as technology concerning renewable energy — that is appropriate to reduce air pollution.105
Justice Kagan argues that there is such a preponderance of scientific evidence for claims that are disputed by the Court — such as carbon dioxide being a pollutant and the jurisdiction of the EPA over protecting the environment — that the Court is restricting the EPA’s power without basis. Since Congress supplied the EPA with the authority to determine what carbon emissions levels are acceptable, the Court cannot remove this authority simply because the EPA determined that the way to do so cannot include using coal. The Justices cannot remove the power of the
99 Janine Maney, “Carbon Dioxide Emissions, Climate Change, and the Clean Air Act: An Analysis of Whether Carbon Dioxide Should Be Listed as a Criteria Pollutant,” New York University Environmental Law Journal 13, Issue No 1 (2005): 298-378
100 West Virginia, (Kagan J dissenting opinion), 6
101 Max Roser, “Why Did Renewables Become So Cheap So Fast?” Our World in Data Our World in Data, December 1, 2020, https://ourworldindata org/cheap-renewables-growth (accessed September 30, 2022)
102 West Virginia, (Kagan J dissenting opinion), 18
103 West Virginia, (Kagan J dissenting opinion), 4
104 West Virginia, (Kagan J. dissenting opinion), 2.
105 West Virginia, (Kagan J dissenting opinion), 2
106
EPA because they feel upset over the fact that existing coal mines, which many of them support, indisputably violate standards for human health.
Unsurprisingly, the Court did not previously challenge the EPA’s ability to make determinations on the level of acceptable carbon dioxide emissions until they — aligning with the scientific consensus— took a stance against non-renewable energy sources.107 Non-renewable energy sources, like coal, emit a dangerous level of carbon emissions that inevitably cause significant damage to the environment and human health, so if the EPA failed to take a stance against these sources, they would be neglecting to address the most obvious contributor to climate pollution.108
As she presents evidence that the Court is incorrectly applying analysis to legislation, Kagan writes, “The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”109 She comments that the cases stated as precedents for major questions doctrine have been wrongfully categorized to all contain a view that is not canonical. Instead, she writes that the aforementioned relevant decisions concerning the executive authority do not seem to qualify as “extraordinary” or “major” in any way, and instead, follow normal statutory interpretation — that it is important to interpret the text of a broad delegation in context, “with a modicum of common sense.”110 This was not the case in West Virginia, capping carbon dioxide levels is clearly within the jurisdiction of the EPA.111
Thus far, the application of the Clean Air Act in interpreting West Virginia has been put under question; in terms of far-ranging impacts, it is important to question the validity of the doctrine itself as well. The majority Court and the dissenters paint two different narratives: one of a long precedent of clearly established cases, and one in which this doctrine is newly reinterpreting past decisions, even if they don’t completely fit with their narrative.112 Regardless of who is correct, the term major questions doctrine has never been used in a Supreme Court’s
106 Maney, “Carbon Dioxide Emissions ”
107 NASA, “Scientific Consensus: Earth's Climate Is Warming ” NASA NASA, August 5, 2022, https://climate nasa gov/scientific-consensus (accessed September 30, 2022)
108 NASA, “Scientific Consensus ”
109 West Virginia, (Kagan J dissenting opinion), 18
110 West Virginia, (Kagan J dissenting opinion), 13
111 West Virginia, (Kagan J. dissenting opinion), 13.
112 West Virginia, (2022), 1-31; West Virginia, (Kagan J dissenting opinion), 1-33
opinion before West Virginia, and it is worrying that the two-part form (“extraordinary case, clear congressional authorization”) outlined by the Court has no basis in prior legislation.113
Justice Kagan writes, “the majority claims it is just following precedent, but that is not so. The Court has never even used the term major questions doctrine before.”114 There is a history of the Court supporting the authority of experts over Congress. Under the precedent set by Gonzales v. Oregon, the Court wrote that they doubted Congress would have delegated such a “quintessentially medical judgment” to an “executive official who lacks medical expertise.”
115 In cases like Alabama Assn. of Realtors v. Department of Health and Human Services, the Court held that regulatory agencies were not able to make decisions on regulations outside of their area of expertise.116 This is not the case in West Virginia, as the EPA was founded to maintain clean air and has dealt with carbon emission regulations for decades.
If the major questions doctrine is overruled in cases where expertise — outside of Congress — is needed, it is unclear how the Court is attempting to argue that carbon emission caps are outside of the EPA’s expertise without also agreeing that it must be outside of Congress’s expertise as well. Surely, members of Congress do not know what methods to use to calculate the BSER. Congress’s role is not to have expertise in all specificities in regulatory cases; the purpose of regulatory agencies such as the EPA determine applications of regulations in most cases. It seems absurd to return the decision to Congress in cases necessitating the most expertise. Specificity in legislation, to the point of satisfying the major questions doctrine, is purposefully avoided in such cases to leave room for expert deliberation.
Although Justice Gorsuch writes that the major questions doctrine is necessary to limit the power of the executive branch, the doctrine instead leaves the door open to granting too much power to the judicial branch.117 With subjective terms like “extraordinary circumstances” and “clear authorization,” this doctrine could easily be abused to support partisan desires, as Justice Kagan has insinuated the Court has done in West Virginia.118 If a court wants to restrict any executive agency, there is no limit to how high the evidentiary threshold can be. Additionally, when the Court has unrestricted power in returning decided issues to Congress, this
113 West Virginia, (Kagan J dissenting opinion), 13
114 West Virginia, (Kagan J dissenting opinion), 15
115 West Virginia, (Kagan J dissenting opinion), 17
116 West Virginia, (Kagan J dissenting opinion), 19
117 West Virginia, (Gorsuch J. concurring decision), 3.
118 West Virginia, (Kagan J dissenting opinion), 13
could potentially be utilized to return a decided issue to Congress when there is a partisan majority that reflects the Court’s beliefs.
Beyond the unclear reasoning behind the major questions doctrine, the emergence of this legal theory marks a worrying trend of Court decisions that are becoming increasingly partisan. In West Virginia, it seems that the major questions doctrine is yet another way to halt action that many of the Justices disagree with politically This decision, in creating a precedent for major issues doctrine, has implications beyond the renewable energy sector. For example, instead of creating a regulatory agency with adequately educated experts to apply legislation, Congress attempted to regulate new technologies such as Facebook independently, embarrassing the U.S. government on the global stage.119 Although there is no question that Congress should have legislative power, it is important for the future of the United States to understand when they are unequipped to determine the specificities to address critical issues due to lack of expertise.
Beyond setting a precedent for future Justices’ jurisprudence, legislators are also worried about how West Virginia will impact the EPA’s ability further the green energy transition. In a monumental decision, the Inflation Reduction Act was passed by Congress on August 7, 2022 — a law that the EPA describes as “ the most significant climate legislation in U.S. history.” 120 The Act has four main goals: to finance green power, lower the costs of renewable energy, reduce emissions and advance environmental justice.121 This legislation comprehensively outlines the EPA’s duties, and there is a lot of hope that the Inflation Reduction Act will be life-changing for Americans who are struggling to deal with the effects of climate change.122 However, the worry is that the Supreme Court will continue to prevent the IRS and EPA from enforcing restrictions that are necessary to achieve these ambitious climate goals. Climate policy has been targeted by major questions doctrine, and the EPA is the executive organization that this Court has chosen to target first. While there is still much hope for the future, the
119 Maclean’s Magazine “Mark Zuckerberg's Facebook Senate Hearing: Six Awkward Moments ” YouTube YouTube, April 11, 2018, https://www youtube com/watch?v=LNi BmGnxKQ(accessed September 30, 2022)
120 Environmental Protection Agency, “The Inflation Reduction Act ” EPA: Green Power Markets Environmental Protection Agency, November 21, 2022, https://www epa gov/green-power-markets/inflation-reduction-act (accessed September 30, 2022)
121 Environmental Protection Agency, “The Inflation Reduction Act ”
122 Environmental Protection Agency, “The Inflation Reduction Act.”
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