Race and the Law

Race and the Law

Cassandra Conover, Race and the Law, 51 U. Rich. L. Rev. Online 91 (2017).

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Cassandra Conover *

When one looks at the topic “Race and the Law,” as this applies to African Americans, the first question that comes to mind is this: Do we want to examine how race and the law have worked together or apart? The answer(s) could be lengthy either way. “Black skin was filled with so many barriers, so many restrictions, so many.”[1] What could those barriers and restrictions be?

There was a time the law used the color of our skin for many reasons, to include the notion that our color made us inferior to others. Although white men worded the Fourteenth Amendment in 1868 specifically so newly freed slaves would be protected citizens against unjust state actions, the acceptance of African Americans as 5/5 of a person versus the 3/5 of a person still contained in the Constitution was a bitter pill for many to swallow.[2] The Jim Crow laws of segregation passed in several states from 1890 to 1945.[3] Those laws were enacted “to subordinate blacks as a group to whites and to enforce rules favored by dominant whites.”[4] Those laws were so strongly supported throughout the South.

Thanks to having the backing of the law, businesses were free to treat blacks almost any way they wished. For example, African Americans during this time could not just stop while traveling on the highways to eat or use a restroom at any establishment. Some places were extremely hostile. A solution was the publication of a green book. Appropriately named the “Negro Motorist Green Book,” this handy document gave “the Negro traveler information that will keep him from running into difficulties, embarrassments, and to make his trip more enjoyable.”[5] This book could almost be called a variation of the concept of the Underground Railroad. The case of Loving v. Virginia, eliminating the ban on interracial marriages, has been acknowledged as the ultimate defeat of the Jim Crow laws.[6]

Over the years, we as a people have not let our race keep us from entering the legal field. Although the Constitution did not recognize African Americans as being whole, a free African American named Macon Allen passed the bar exam in Maine in 1844, twenty-four years before the passage of the Fourteenth Amendment.[7] The first African American police officer came on board in 1886 in California.[8] The integration of African Americans has continued to expand to all facets of the law.

Here I stand on the shoulders of giants as an African American female District Attorney of twenty-seven years, looking forward to retiring in one month, with concerns. The giants struggled so hard for me and others. However, there appears to be generations of African Americans who either do not know or do not appreciate those struggles. Whereas we have more African Americans working in the legal field as probation officers, policemen and women, lawyers, and judges, we also continue to have African Americans being killed in the name of the law, by black and white officers. The dialogue of “Race and The Law” must continue and take on these new and strange dynamics.

    Commonwealth’s Attorney, Petersburg, Virginia. Ed.D., 2017, Concordia University-Portland; M.B.A., 2006, Regis University; J.D., 1985, North Carolina Central University School of Law; B.A., 1982, University of Virginia. The author holds the titles of senior ranking female Commonwealth Attorney in the State of Virginia and senior ranking African American female District Attorney in the United States.

        [1].    Randi Pink, Into White 77 (2016).

        [2].    July 28, 1868: 14th Amendment Adopted, History.com, http://www.history.com/ this-day-in-history/14th-amendment-adopted (last visited Apr. 27, 2017).

        [3].    David Pilgrim, What Was Jim Crow, Ferris State U., http://www.ferris.edu/ jimcrow/what.htm (last visited Mar. 1, 2017).

        [4].    J. Morgan Kousser, Jim Crow Laws, in 4 Dictionary of American History 479 (Stanley I. Kutler ed., 3d ed. 2003).

        [5].    Mark S. Foster, In the Face of “Jim Crow”: Prosperous Blacks and Vacations, Travel and Outdoor Leisure, 1890–1945, 84 J. Negro Hist. 130, 142 (1999).

        [6].    See Loving v. Virginia, 388 U.S. 1, 12; Kousser, supra note 4, at 479.

        [7].    Macon Bolling Allen, Biography.com, http://www.biography.com/people/macon-bolling-allen-21342461 (last updated Apr. 2, 2014).

        [8].    125 Years of African-Americans in LAPD, L.A. Police Dep’t, http://www.lap donline.org/home/content_basic_view/47101 (last visited Mar. 1, 2017).

Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment

Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment

Elizabeth Farrington, Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment, 51 U. Rich. L. Rev. Online 71 (2017).

Click here to download PDF.

Elizabeth Farrington*

Much has been and will be said concerning President Donald Trump’s immigration policies. The vast majority of commentary has focused on his plans to enforce existing policy by deporting undocumented immigrants currently living in the United States and, of course, to build a wall on the United States border with Mexico. Less has been said, however, about any potential plans to change existing law regarding birthright citizenship—the process by which children of undocumented immigrants born on United States soil are granted full citizenship status.

On what he calls “anchor babies,” President Trump wrote: “[W]omen who have zero connection to the United States cross the border, deliver a baby, and their kid magically becomes an American citizen eligible to receive all the rights and benefits of those who have lived, worked, and paid taxes in our country.”[1] Mr. Trump notes the constitutional provision allowing this practice is, of course, the Fourteenth Amendment. Passed in June 1866[2] and ratified two years later (after contentious debate),[3] it provides in pertinent part: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”[4] This clause has historically granted citizenship to “anyone born on
American territory, no matter their national origin, ethnicity, or station in life.”[5]

Relatively recently, this interpretation has come under fire. Some scholars believe we must repeal this clause due to policy concerns surrounding immigration and undocumented immigrants. Others argue that we could remove the promises of birthright citizenship without repealing the clause or the amendment; they argue that we have misinterpreted this clause.[6] This is not merely a scholarly debate; the Pew Institute estimates nearly 300,000 children were birthed into citizenship under this clause in 2013.[7] Though President Trump espoused his views on the issue loudest and most often, every presidential candidate—on both sides of the aisle—spoke publicly about birthright citizenship.[8] This essay aims to analyze this debate without regard to political party or current policy implications. Rather, this essay will seek to find its own answer to the growing birthright citizenship debate, drawing on primary sources from the time it was passed (and applied to a few nineteenth century cases after the Reconstruction Amendments were passed).

The amendment was passed in response to, inter alia, the Dred Scott decision denying citizenship to former slaves;[9] in that respect, the citizenship clause was perhaps included to guarantee the right to citizenship for all newly freed African Americans born within United States borders. Although this clause seemed to put forth a straightforward test, that anyone born within the country’s borders is a citizen, some argue it was passed only to grant citizenship to former slaves freed by the Thirteenth Amendment and that full birthright citizenship is not warranted.[10]

This essay argues that birthright citizenship is in accordance with both the original intent and public understanding of the Fourteenth Amendment’s citizenship clause. Furthermore, it argues that Congress’ inclusion of the clause was not to change the definition of citizenship, but rather to affirm the practice established long before Reconstruction. For that reason, Part I will briefly address the early English common law of jus solis[11] (citizenship defined by soil) and the other option available after the revolution, jus sanguinis[12] (citizenship defined by blood). Part I will also analyze the effect of Dred Scott v. Sanford, where Chief Justice Taney struck down the Compromise of 1850 and held that slaves could never be citizens despite their birth on U.S. soil.[13]

Next, and most importantly, this essay will turn to Reconstruction in Part II. Specifically, it will analyze Attorney General Bates’ 1862 opinion regarding the citizenship of a free, black ship master, providing unique insight into the question of citizenship prior to formal Reconstruction. Next, drawing on the citizenship clause debates surrounding both the Civil Rights Act and the clause in the amendment itself, this essay will address the “framers’ intent” standard, insofar as anyone can surmise such intent from the text of debates and speeches alone. Finally, Part III will look to Reconstruction-era legal scholarship to provide insight on public meaning and then to instances following Reconstruction when the Supreme Court or lower courts applied or interpreted birthright citizenship immediately after the Fourteenth Amendment was ratified.

Using all of the above, this essay will outline the absurdity of the birthright citizenship debate. That is, the historical analysis proves that the clause was enacted with, at the very least, full acknowledgement of the effect of guaranteeing birthright citizenship and, in some cases, shows the explicit intent to do so. This paper argues the clause was included to overrule Dred Scott and was intended to reach beyond newly freed slaves and their children; it was included not to expand citizenship, but to declare and ensure jus solis remained the supreme law of the land.

I. Laying the Groundwork: How Did We Get Here?

English Common Law: The First United States Citizens and the Doctrine of Jus Solis

Citizenship was one of the many doctrines early American courts adopted from the English Common Law. According to Blackstone: “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”[14] Across the ocean, then, “[w]ith the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace), rather than the rule of jus sanguinis (citizenship defined by that of parents) that prevails in much of continental Europe.”[15]

This doctrine is seen throughout English and American common law cases;[16] most notably in Calvin’s Case,[17] “one of the most important English common-law decisions adopted by courts in the early history of the United States.”[18] In Calvin’s Case, the court addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI, would be considered “subjects” in England.[19] The court found that persons born on sovereign land, no matter the status of his or her parents, were “natural subjects.”[20] This decision established “the American common-law rule of birthright citizenship.”[21]Across the pond, the United States Supreme Court cited Calvin’s Case and found that “[n]othing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the governments, and owing a temporary allegiance thereto, are subjects by birth.”[22] This case remains good law, and is cited to this day.[23]

Dred Scott and the Court’s Role in the Civil War

In 1820, President James Monroe signed the Missouri Compromise,[24] “which prohibited slavery in all of the federal territories north and west of the state of Missouri.”[25] Fourteen years later, enter Dred Scott, a slave belonging to a United States Army surgeon.[26] That surgeon, Dr. Emerson, took Scott with him to Illinois and to present day Minnesota, an area covered by the Missouri Compromise’s prohibition on slavery.[27] Mr. Scott later attempted to buy his freedom, and when Dr. Emerson’s wife refused (Dr. Emerson himself having died), Scott sued for his freedom.[28] After lengthy legal battles, Scott’s case (now in the form of Scott v. Sandford) eventually made its way to the United States Supreme Court. This decision is taught in every law school in the country and widely discussed in constitutional scholarship,[29] largely due to its timeliness (immediately before the Civil War), its implications, and the nature of the opinion itself, with each of the nine justices penning an opinion. Chief Justice Taney’s majority opinion, despite finding that the Court lacked jurisdiction, found that slaves were ineligible for citizenship and denied Scott his freedom.[30] Taney did not discuss the doctrine of jus soli, nor did he find the place of Scott’s birth relevant. Rather, he found that black Americans were excluded altogether from citizenship on account of their race and status. Justices Curtis dissented (as did Justice McLean); in Justice Curtis’ seventy-page dissent, he noted:

I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.[31]

Curtis, then, had a fundamentally different understanding of citizenship—and the possibility of black citizenship—than Taney and the rest of the majority. To Curtis, the Constitution’s use of “natural-born citizen” “assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”[32] The majority opinion was lauded by Southerners and many Northern Democrats, who “hoped it would forever end debate over slavery in the territories and, thus, eliminate the newly formed Republican Party as a political force in the North.”[33] Republicans had a different plan, and the opinion simply fanned the flames of an increasingly fragile union of states: “Though surely an exaggeration, it has been said that the case caused the Civil War. While other forces caused secession and the War, Dred Scott surely played a role in the timing of both.”[34]

References to this decision are found throughout the Congressional Globe, even before the records of the 39th Congress and throughout Reconstruction.[35] Representative Calvin Chaffee, for example, explained that “[t]he dictum of the Court is a very different affair from a decision,[36] and that became the party line for Republicans seeking to use the opinion (and Justice Curtis’ dissent) in their favor. The drafters of the Fourteenth Amendment often cited to the decision when probed on the necessity of the law. Cases following Reconstruction cited the decision as the impetus of the Reconstruction Amendments generally and the Fourteenth Amendment in particular.[37] Frederick Douglas “optimistically predicted that, in the long run, the decision would help the antislavery movement. . . . [T]his decision would lead to more support for abolitionists and thus put greater pressure on slavery.”[38] And he was right, as the decade that followed brought about the bloodiest war in American history, but also brought with it the abolition of slavery and Reconstruction.

II. Reconstruction

Attorney General Bates on Citizenship

Edward Bates, a Republican Congressman from Missouri, unsuccessfully ran for his party’s presidential nomination in 1860, but his loss was short-lived: President Lincoln appointed him Attorney General in 1861.[39] Just one year into his appointment, Treasury Secretary Chase sent Bates a letter asking for his opinion on “whether or not colored men can be citizens of the United States.”[40] The question was posed in response to a ship commanded by a free black man detained off the coast of New Jersey. Bates explained: “The Constitution of the United States does not declare who are and who are not citizens, nor does it attempt to describe the constituent elements of citizenship. It leaves that quality where it found it, resting upon the fact of home-birth, and upon the laws of the several States.”[41] Drawing from Calvin’s Case, he wrote that the Constitution “uses the word citizen only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other.”[42]

Much of Bates’ opinion is devoted to traits or privileges of citizenship, and understandably focuses on correcting the dangerous notion that there is a lower, “denizen” class of black citizens, but one crucial passage provides insight on birthright citizenship as Bates understood it: “We have natural born citizens, not made by law or otherwise, but born . . . The Constitution itself does not make the citizens . . . It only intends and recognizes such of them as are natural—home-born; and provides for the naturalization of such of them as were . . . foreign-born.”[43] He continued:

[I]t is too late now to deny the political rights and obligations conferred and imposed by nativity; for our laws do not pretend to create or enact them, but do assume and recognize them as things known to all men, because pre-existent and natural; and therefore things of which the laws must take cognizance. . . . [P]rima facie, every person in this country is born a citizen.[44]

With that, Bates issued his opinion and answered Chase’s question about black citizenship with a resounding “yes”—and gave a formal endorsement of birthright citizenship in the process.

The Civil Rights Act of 1866

As Congress was drafting the Fourteenth Amendment, the Thirty-ninth Congress had already declared “all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed . . . to be citizens of the United States” in the Civil Rights Act of 1866.[45] On January 5, 1866, Senator Lyman Trumbull (R-IL) introduced S. No. 61, a bill “to protect all persons in the United States in their civil rights and furnish the means of their vindication.”[46] Trumbull believed the Citizenship Clause, which “declares that all persons of African descent shall be citizens of the United States,” was “the basis of the whole bill.”[47]

Senator Morrill (R-ME) found that the bill was “not an enactment in the sense of the law, in the sense of legislation, but a declaration of a grand, fundamental principle of law and politics,”[48] and hailed it as such. Responding to opposition from Senator Garrett Davis (D-KY), Morrill said:

As matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by virtue of his birth alone? . . . [Davis] has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. . . Everywhere where the principles of law have been recognized at all, birth by its inherent energy and force gives citizenship . . . The Constitution speaks of “natural born,” and speaks of them as citizens in contradistinction from those who are alien to us. Therefore, sir, this amendment, although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration.[49]

For purposes of citizenship, then, Senator Morrill understood birthright citizenship in the jus solis sense prior to Reconstruction and saw formal codification as nothing more than an affirmation of existing law. Trumbull generally agreed, noting that he and Morrill “desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States.”[50] The qualification Trumbull made was for foreign diplomats: “We cannot make a citizen of the child of a foreign minister who is temporarily residing here.”[51]

Not everyone agreed with Senator Trumbull, with Senator Garrett Davis (D-KY) serving as the most vocal opponent. He challenged the proposition that the bill was merely declaratory law, and instead insisted that “Congress may create the [uniform rule of naturalization]; it may prescribe the authority to make a citizen; but it cannot exercise that power itself. . . . Congress has no power to make a citizen.”[52] Senator Davis was not alone in his objections,[53] but he was unable to convince the Senate; the bill passed on February 2, by a vote of thirty-three to twelve.[54]

As the bill proceeded to the House (where the citizenship clause was not heavily debated), Representative James Wilson (R-IA) concurred with Senator Morrill that the citizenship clause formally declared the already settled law: “This provision, I maintain, is merely declaratory of what the law now is.”[55] Representative Wilson proceeded to cite relevant legal authority and precedent in support of his conclusion[56] before voting for the bill, which passed in the House on March 13 by a vote of 111–38 (with 34 not voting).[57]

Shocking members of both houses, President Johnson vetoed the Civil Rights Bill two weeks later, noting among his objections his concern with “granting” citizenship:

This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races, born in the United States, is by the bill made a citizen of the United States. . . . The right of Federal citizenship, thus to be conferred in the several excepted races before mentioned, is now, for the first time, proposed to be given by law. If, as is claimed by many, all persons who are native-born, already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed from the proposed legislation to make them such, the grave question presents itself, whether, when eleven of the thirty-six States are unrepresented in Congress, at this time it is sound policy to make our entire colored population and all other excepted classes citizens of the United States?[58]

Thus, even President Johnson acknowledged the thesis of this essay; that is, many understood birthright citizenship as the existing law, merely declared in this bill, and even those that rejected that premise understood the effect of birthright citizenship. This portion of his veto seems to argue that the citizenship provision is either redundant (because it is already the law) or entrenches birthright citizenship without input from Southern representatives. Crucially, over these and President Johnson’s other objections, Congress passed the Civil Rights Bill with the two-thirds majority required to override, and the Act became law on April 9, 1866.[59]

This discussion is valuable to the citizenship clause of the Fourteenth Amendment because the members drafting, debating, and passing the Act were, of course, those same members drafting, debating, and passing the amendment. Moreover, “the [Fourteenth Amendment’s Citizenship] Clause was intended to entrench an earlier statutory citizenship guarantee in the Civil Rights Act of 1866.”[60] Clearest of all, the United States Supreme Court noted that the two pieces of legislation were linked and its use of language was in no way coincidental: “The same congress, shortly [after passing the Civil Rights Act], evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent congress, framed the fourteenth amendment of the constitution.”[61]

The Fourteenth Amendment’s Section One

One issue with analyzing the Fourteenth Amendment’s citizenship debate is that the same members, having understood it during the Civil Rights Act, felt the matter was settled by the time the clause was introduced in this separate context. The “debate” on the clause was correspondingly much shorter than other provisions (i.e., the Equal Protection Clause debates). Nevertheless, Congress did introduce and discuss the amendment’s citizenship provision, as outlined below. Introducing it on May 30, 1866, the clause’s author Senator Jacob Howard (R-MI) explained:

I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.[62]

That, in and of itself, is not only innocuous, it seems to support the premise that the Citizenship Clause—both in the Civil Rights Act (to which Howard refers) and the Fourteenth Amendment—was merely declaring formally the established doctrine of jus soli. Howard did not stop there, though, and his next statement is the loose end to which birthright citizenship opponents cling: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”[63] Senator Howard’s proposal was immediately discussed, but mainly within the context of the Indian population.[64]

Senator Cowan (R-PA), the first to give Senator Howard’s clause a closer look, “supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection.”[65] That concept frightened Cowan, who noted Chinese immigration to California, and feared that if a state “was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, [that state] would have the right to say that those people should not come there.”[66] He went on:

[T]here are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is with us. It is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society; and it is necessary . . . that society shall be more or less exclusive.[67]

That xenophobia notwithstanding, over the course of the next few days, several other Senators weighed in on the matter, and in doing so lent no support to the concept that this proposed Citizenship Clause should (or would) remove the doctrine of jus soli from the established law.

Senator Conness (R-CA) responded immediately to Senator Cowan’s fears about the impending invasion of his own California. He succinctly and directly addressed Senator Howard:

The proposition before us . . . relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for
the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.[68]

He then “beg[ged]” Senator Cowan not to concern himself with the Chinese, and noted with incredulity the notion that the United States was being overtaken by Gypsies and other immigrants while expressing his belief that these individuals must be protected in their civil rights.

Senator Reverdy Johnson, a Democrat (D-MD), followed Senator Conness’ lead. Expressing concern for the lack of defined United States citizenship, he said:

Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power . . . shall be considered as citizens of the United States. . . . If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.[69]

Two weeks later, the Senate once again took up the issue of Senator Howard’s Citizenship Clause. Senator Henderson (R-MO) began the discussion and was the last Senator to speak on the issue:

I propose to discuss the first section only so far as citizenship is involved in it. I desire to show that this section will leave citizenship where it now is. It makes plain only what has been rendered doubtful by the past action of the Government. . . . Justice McLean, in the Dred Scott case, said: “Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is a ‘freeman.’”[70]

Henderson understood Justice McLean’s dissent to mean “that any person, black or white, born upon the soil of a State, is a citizen of that State, unless he be born in slavery, and if he be born a slave, he becomes a citizen so soon as by the laws of the State he becomes a free man.”[71] Thus, the citizenship debate ended with Senator Henderson’s statement: “All born on the soil free are citizens of the respective States of their birth, and therefore citizens of the United States.”[72]

III. Evidence of Public Meaning


Early Supreme Court cases used conventions of British common law to interpret it’s constitutional meaning, including not only Calvin’s Case but also Sir Edward Coke’s report on the case, who insisted that the King’s reciprocal obligations to a subject’s allegiance protected the rights of any subject born within his domain.[73] Of course, it was not only the courts that seemed to adopt this understanding. Several prominent law review articles contribute to the discussion, with near unanimous support for the jus soli understanding of citizenship.[74] Thus, pre-Reconstruction, the generally accepted public meaning of birthright citizenship was relatively unchallenged: “[A] child was a citizen at birth if born within the territory of a sovereign and under the sovereign’s authority. This was true even if the child’s parents were aliens.”[75] Insofar as scholars can accurately provide evidence of public meaning, this understanding is supported by St. George Tucker,[76] William Rawle,[77] Joseph Story,[78] and James Kent:[79] “In drafting the Fourteenth Amendment, the framers drew on preexisting legal terminology. Hence, if ‘jurisdiction’ originally meant ‘sovereign authority’ at the framing, we should expect to see this meaning used in antebellum discourse. A variety of sources demonstrate that it was.”[80]

Court Cases

Though not entirely helpful for understanding the Framer’s intent surrounding birthright citizenship, Supreme Court decisions concerning citizenship (or, as in The Slaughterhouse Cases, cases that discuss the concept in dicta) help frame our understanding of the public meaning.

The Slaughterhouse Cases (and Their Limited Utility)

In the Slaughterhouse Cases, just five years after the Fourteenth Amendment was ratified, the Court famously found that the Privileges or Immunities Clause did not protect citizens against state encroachment, but rather protected only those conferred by the federal government.[81] In dicta, the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of . . . citizens or subjects of foreign States born within the United States.”[82] Opponents of birthright citizenship argue that this is “as absolute and complete a statement as can be imagined, and it would deny birthright citizenship to a child born in this country to undocumented immigrants or to a transient alien mother.”[83] As further proof, opponents point to Minor v. Happersett, decided just two years after Slaughterhouse, where the same Court “expressly recognized the existence of ‘doubts’ that citizenship was automatic for ‘children born within the jurisdiction without reference to the citizenship of their parents,’ after noting that citizenship attaches only when the immigrant owes ‘allegiance’ to this country.”[84]

While noting the non-binding nature of these provisions, Gerald Walpin argues that both opinions “should be considered authoritative insofar as they were expressed by Justices who lived through the enactment of the provision they were construing, and thus were well positioned to comprehend the meaning and intention of the words.”[85] If that was all the Court said on the matter during the decades immediately following Reconstruction, that would seem a valid proposition. However, that was not the end of the discussion, even in that case. Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause: “It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any state or the condition of their ancestry.”[86] What’s more, the Court backed away from the majority Slaughterhouse decision and, in later cases, seemingly directly overruled that portion of the decision that addressed birthright citizenship.

In 1884, Justice Field was on circuit in California and heard the case of In re Look Tin Sing concerning the citizenship of a child born in the United States of Chinese parents.[87] To use Walpin’s own words, Justice Field’s decision on the matter is as absolute and complete a statement on the matter as could be imagined, especially since the case was specifically about birthright citizenship.[88] Quoting the Citizenship Clause of the Fourteenth Amendment, Field explains: “This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States.”[89] He goes on to explain the phrase “subject to the jurisdiction thereof”:

They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. [90]

Justice Field listed those children that would not be guaranteed citizenship by virtue of their birth: (1) “children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors”;[91] (2) “[p]ersons born on a public vessel of a foreign country, while within the waters of the United States, and consequently within their territorial jurisdiction”;[92] (3) persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country.”[93] Directly contradicting the Slaughterhouse Cases, Justice Field explains:

[T]he words in the fourteenth amendment, “subject to the jurisdiction thereof,” . . . do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship, and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.[94]

Of course, Justice Field’s opinion is not that of the Court, but rather his opinion binding only on courts within the California Circuit Court’s jurisdiction. But it does effectively demonstrate that not all justices agreed with the Slaughterhouse dicta’s treatment of the Citizenship Clause.

United States v. Wong Kim Ark

Two months after Look Tin Sing, in November 1884, the Court (and not simply Justice Field) issued some guidance in Elk v. Wilkins.[95] Opponents of birthright citizenship also cite to this decision as proof positive that the Court (and public meaning at the time) understood the Citizenship Clause as reported in the Slaughterhouse dicta. This mistakes the facts of the case; John Elk was a Winnebago Indian, born on an Indian reservation, who later renounced his tribal allegiance in an effort to gain U.S. citizenship.[96] Thus, when the Court found that Mr. Elk was not a citizen of the United States under the Fourteenth Amendment, it did so within the context of the contentious debate surrounding the sovereignty of Indian tribes and the reach of the court system within that sovereignty.[97]

Conversely, in United States v. Wong Kim Ark,[98] the Court squarely and definitively addressed the issue of birthright citizenship in facts nearly identical to Look Tin Sing; that is, the Court was asked to decide whether Ark, a child born in the United States to Chinese parents, was a United States citizen.[99] After Ark left to visit China temporarily and sought to return, he was denied reentry “upon the sole ground that he was not a citizen of the United States.”[100] Distinguishing Elk was simple and succinct: “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country.”[101] The Court found: “In the fore front, both of the Fourteenth Amendment of the Constitution, and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.”[102] The majority continued:

As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.[103]

The Court further distanced itself from Slaughterhouse, noting the non-binding nature of the Citizenship Clause discussion. Citing Chief Justice John Marshall, the Court noted the maxim:

[N]ot to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.[104]

That maxim is of great use in this essay, because if the best arguments against birthright citizenship, each discussed above, are found in dicta, and in minority theories, they are indeed respected, but do not control the judgment of this subsequent debate.


The doctrine of jus soli was the law of the land prior to the Civil War and was formally constitutionalized by the Fourteenth Amendment. Lawmakers, scholars, and the general public agreed, at the very least, in an understanding that the citizenship clause would guarantee birthright citizenship and, perhaps more likely, intended that consequence. The current debate surrounding birthright citizenship is political, policy-driven, and—with regard to immigration reform—may be necessary. But make no mistake; this debate is not grounded in history. On that, history is clear.

* Judicial Law Clerk to the Hon. Nanette K. Laughrey, Western District of Missouri. J.D., 2016, University of Illinois College of Law; M.A., 2013, Old Dominion University; B.S., 2007, United States Naval Academy.

        [1].    Donald J. Trump, Time to Get Tough: Make America Great Again! 141 (2011).

        [2].    Cong. Globe, 39th Cong., 1st Sess. 3040 (June 8, 1866) (recording passage in the Senate); id. at 3148 (June 13, 1866) (recording passage in the House of Representatives).

        [3].    13 Stat. 708–11 (July 28, 1868).

        [4].    U.S. Const. amend. XIV, § 1, cl. 1.

        [5].    Gerald Walping, David B. Rivkin, Jr. & John C. Yoo, Birthright Citizenship: Two Perspectives, 17 Engage 21 (Feb. 2016).

        [6].    See id. at 21–22; Walping et al., supra note 5, at 18–21; John C. Eastman, We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship, Nat’l Rev. (Aug. 24, 2015, 4:00 AM), http://www.nationalreview.com/article/422960/birthright-citizenship-reform-it-without-repealing-14th-amendment; Peter Schuck, Birthright of a Nation, N.Y. Times (Aug. 13, 2010), http://www.nytimes.com/2010/08/14/opinion/14schuck.html?_r=1.

        [7].    Jeffrey S. Passel & D’Vera Cohn, Number of Babies Born in U.S. to Unauthorized Immigrants Declines, Pew Research (Sept. 11, 2015), http://www.pewresearch.org/fact-tank/2015/09/11/number-of-babies-born-in-u-s-to-unauthorized-immigrants-declines/.

        [8].    See Mark Murray, Where the GOP 2016 Candidates Stand on Birthright Citizenship, MSNBC (Aug. 18, 2015, 3:39 PM), http://www.msnbc.com/msnbc/where-the-gop-2016-candidates-stand-birthright-citizenship.

        [9].    Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), superseded by constitutional amendment, U.S. Const. amend. XIV.

      [10].    Id. at 406

      [11].    Jus Soli, Black’s Law Dictionary (10th ed. 2014).

      [12].    Jus Sanguinis, Black’s Law Dictionary (10th ed. 2014).

      [13].    60 U.S. at 397–99, 427.

      [14].    1 William Blackstone, Commentaries on the Laws of England 373 (1765); see also James Kent, 2 Commentaries On American Law 33 (3rd ed. 1827) (“Natives are all persons born within the jurisdiction of the United States.”); William Rawle, A View of the Constitution of the United States of America 86 (2d ed. 1829) (“[E]very person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution.”).

      [15].    Walping et al., supra note 5.

      [16].    But see Mark Shawhan, “By Virtue of Being Born Here”: Birthright Citizenship and the Civil Rights Act of 1866, 15 Harv. Latino L. Rev. 1, 6 (2012) (discussing a “Consensualist Alternative” to this doctrine).

      [17].    Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).

      [18].    Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 Yale J.L. & Human. 73, 74 (1997).

      [19].    Id. at 73.

      [20].    Calvin, 77 Eng. Rep. at 383 (“By all which it evidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens.”).

      [21].    See Price, supra note 18, at 74.

      [22].    Inglis v. Tr. of Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830).

      [23].    See, e.g., Tuaua v. United States, 788 F.3d 300, 304 (D.C. Cir. 2015) (citing Inglis, 28 U.S. at 164) (“The doctrine of jus soli is an inheritance from the English common law. Those born ‘within the King’s domain’ and ‘within the obedience or ligeance of the King’ were subjects of the King, or ‘citizens’ in modern parlance. The domain of the King was defined broadly. It extended beyond the British Isles to include, for example, persons born in the American colonies.”).

      [24].    Missouri Compromise of 1820, ch. 22, 3 Stat. 545.

      [25].    Paul Finkelman, Scott v. Sandford: The Court’s Most Dreadful Case and How It Changed History, 82 Chi.-Kent L. Rev. 3, 4 (2007).

      [26].    Scott v. Sandford, 60 U.S. 393, 397 (1856).

      [27].    See also Finkelman, supra note 25, at 15; Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 Chi.-Kent L. Rev. 49, 51 (2006).

      [28].    Finkelman, supra note 25, at 19–20.

      [29].    See, e.g., Finkelman, supra note 25, at 3; Balkin & Levinson, supra note 27, at 49.

      [30].    See Scott, 60 U.S. at 427.

      [31].    Id. at 576 (Curtis, J., dissenting).

      [32].    Id.

      [33].    Finkelman, supra note 25, at 5.

      [34].    Id. at 3.

      [35].    See, e.g., Cong. Globe, 39th Cong., 1st Sess. 1116 (1866) (statement of Rep. Wilson) (“The opinion of the court was soon after given to the country, but instead of becoming a triumphant platform for the Democratic party, it proved to be the scaffold on which the party was executed.”).

      [36].    Cong. Globe, 35th Cong., 1st Sess. 854 (1858) (statement of Rep. Chaffee).

      [37].    See, e.g., In re Look Tin Sing, 21 F. 905, 909 (C.C.D. Cal. 1884) (Field, J., on circuit) (“The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country, so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott Case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of the United States, nor capable of becoming such.”)

      [38].    Finkleman, supra note 25, at 12–13.

      [39].    Cabinet and Vice Presidents: Edward Bates (1793–1869), Mr. Lincoln’s White House, http://www.mrlincolnswhitehouse.org/residents-visitors/cabinet-vice-presidents/ca binet-and-vice-presidents-edward-bates-1793-1869/ (last visited Feb. 17, 2017); Edward Bates (1861–1864)—Attorney General, Miller Ctr. of Pub. Affairs, Univ. of Va., http:// millercenter.org/president/essays/bates-1861-attorney-general (last visited Feb. 17, 2017).

      [40].    Citizenship, 10 Op. Att’y Gen. 382, 382 (1862).

      [41].    Id. at 385.

      [42].    Id. at 388 (internal citation omitted).

      [43].    Id. at 389.

      [44].    Id. at 395–96.

      [45].    Cong. Globe, 39th Cong., 1st Sess. 1115 (1866).

      [46].    Id. at 129.

      [47].    Id. at 474.

      [48].    Id. at 570.

      [49].    Id.

      [50].    Id. at 572.

      [51].    Id.

      [52].    Id. at 597.

      [53].    See, e.g., id. at 600 (statement of Sen. Guthrie).

      [54].    Id. at 606–07.

      [55].    Id. at 1115.

      [56].    See id. at 1116 (quoting 1 Sherwood’s Blackstone 304).

      [57].    Id. at 1367.

      [58].    Id. at 1679.

      [59].    Id. at 1809, 1861.

      [60].    Shawhan, supra note 16, at 2.

      [61].    United States v. Wong Kim Ark, 169 U.S. 649, 675 (1898).

      [62].    Cong. Globe, 39th Cong., 1st Sess. 2890 (1866).

      [63].    Id.

      [64].    Id. (statement of Sen. Doolittle) (“I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment—I presume he will have no objection to it—by inserting after the word ‘thereof’ the words ‘excluding Indians not taxed.’”); id. (statement of Sen. Howard) (“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”).

      [65].    Id.

      [66].    Id. at 2891.

      [67].    Id.

      [68].    Id.

      [69].    Id. at 2893.

      [70].    Id. at 3031.

      [71].    Id.

      [72].    Id.

      [73].    See Price, supra note 18, at 73–74; Nicole Newman, Birthright Citizenship: The Fourteenth Amendment’s Continuing Protection Against an American Case System, 28 B.C. Third World L.J. 437, 445 (2008).

      [74].    For an overview of this literature, see Bernadette Meyler, The Gestation of Birthright Citizenship, 1868–1898: States’ Rights, the Law of Nations, and Mutual Consent, 15 Geo. Immigr. L.J. 519, 532–37 (2001); John A. Hayward, Who Are Citizens?, 2 Am. L.J. 315, 317 (1885); Thomas P. Stoney, Citizenship, 34 Am. L. Reg. 1, 1–2 (1886); D.H. Pingrey, Citizens, Their Rights and Immunities, 36 Am. L. Reg. 539, 540 (1888); cf. Henry C. Ide, Citizenship by Birth—Another View, 30 Am. L. Rev. 241, 241 (1896).

      [75].    Matthew Ing, Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause, 45 Akron L. Rev. 719, 725 (2012).

      [76].    1 Blackstone’s Commentaries: With Notes of Reference to the Constitution And Laws of the Federal Government of the United States; and of the Commonwealth of Virginia 152 (St. George Tucker ed., 1803).

      [77].    William Rawle, A View Of The Constitution Of The United States Of America 236 (2d ed. 1829).

      [78].    3 Joseph Story, Commentaries On the Constitution of the United States § 1646 (1833).

      [79].    James Kent, Commentaries On American Law 15 (William Kent ed., 9th ed. 1858).

      [80].    Ing, supra note 75, at 725–29 (discussing treatises and state court opinions on the subject).

      [81].    83 U.S. 36, 73, 80 (1873).

      [82].    Id.

      [83].    Walping et al., supra note 5, at 18.

      [84].    Id. (quoting Minor v. Happersett, 88 U.S. 162, 167–68 (1875)).

      [85].    Id. (“Note that, because the meaning of the Birthright Citizenship provision did not determine the outcome in either case, the Court’s statements in both decisions are dicta, not binding holdings.”).

      [86].    Slaughterhouse, 83 U.S. at 95.

      [87].    In re Look Tin Sing, 21 F. 905 (C.C.D. Cal. 1884).

      [88].    Walping et al., supra note 5.

      [89].    In re Look Tin Sing, 21 F. at 906 (C.C.D. Cal. 1884).

      [90].    Id.

      [91].    Id.

      [92].    Id.

      [93].    Id. at 907.

      [94].    Id. at 908–09.

      [95].    112 U.S. 94 (1884).

      [96].    Id. at 94–95.

      [97].    Id. at 109; see also Cong. Globe, 39th Cong. 1st Sess. 2895 (1866) (statement of Sen. Howard) (“I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages . . . are to become my fellow-citizens.”); id. at 2897 (statement of Sen. Doolittle) (classifying Indians as “utterly unfit to be citizens of the United States”).

      [98].    169 U.S. 649 (1898).

      [99].    Id. at 652–53.

    [100].    Id. at 653.

    [101].    Id. at 682.

    [102].    Id. at 675.

    [103].    Id. at 676.

    [104].    Id. at 679 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)).



Remarks on Campus Sexual Assault

Remarks on Campus Sexual Assault

Allison M. Tinsey, Remarks on Campus Sexual Assault, 51 U. Rich. L. Rev. Online 101 (2016).

Click here to download PDF.

Allison M. Tinsey *

I was appalled to learn how the first-year criminal law curriculum addresses the subject of criminal sexual misconduct. Criminal sexual misconduct was the last topic covered in class and reserved for the last day of class. My section was forewarned of the upcoming conversation with an added bonus of knowing the material covered in class would not be on the exam. The assigned textbook reading on criminal sexual misconduct was condensed and edited. I heard a similar story from my friends in other sections: they were warned, told it would not be tested, and even given the option of not showing up to class that day.

While my professor took a diplomatic and thoughtful approach to the subject, the class discussion was less than productive. No one was on the same page in regards to what constitutes criminal sexual misconduct or what it means to give consent, especially if alcohol is involved. I did not walk away from that class, as I had from others, with a clear view of what the law is, what the main issues are, and how courts tend to address them. I proactively followed up with my professor and the Title IX coordinator to discuss my frustrations with the law school’s lack of emphasis placed on these issues.

I am told sexual misconduct is a messy subject, especially for lawyers. I am also told that tax is a messy subject, but at least it is a useful LL.M degree. The follow-up conversations I had with my professor and the Title IX coordinator specifically addressed how we, as lawyers, ought to study and address criminal sexual misconduct in the classroom, on campus, and in our careers.

As advocates, we are called to serve our clients and help them navigate the muddied waters of the law when they encounter issues. The law may or may not be on their side—the law may not even exist yet—but we are obligated to represent their best interests as they face pending judgment. Why, then, do we treat criminal sexual misconduct as if it is a nonissue that lawyers rarely encounter? Why do we only set aside one hour of class time to discuss a topic that affects every person in the room?

No one is immune to the effects of criminal sexual misconduct. Thus, we are all responsible to each other as these crimes perpetuate. While some are privileged—and perhaps, in their minds, blighted—to only have to sit through one hour of discussion on criminal sexual misconduct, those of us who are the friends and family of victims do not have such a privilege. We are haunted by our inability to protect our loved ones.

As survivors, we know that there is no such thing as a “safe space.” We would like to think that the systems in place to investigate and bring justice to claims work because when victims have faith in the system, they encourage others to report and the level of deterrence grows. But as the recent events at the University of Richmond—and that occur every day on campuses around the country—show, the system continues to fail victims.

Every message that the University disseminated in light of recent events speaks of a commitment to our values as a community. Ostensibly, those values do not include promoting criminal sexual misconduct. Those values promote bodily autonomy. They promote respect and fair treatment. They promote empowerment for women to say, “No,” and for men to listen, or at least these values should.

Instead, the bifurcation of gender promoted by Richmond and Westhampton Colleges as well as the Greek system on this campus perpetuates a lack of accountability to these values. Because when students do not look each other in the eye and say, “I will not do that to you. I respect your body and your choices. I will be accountable for my actions,” then the values the University seeks to promote lie dormant. Sexual violence does not happen in a vacuum, and neither does the law. Until the University—and the country as a whole—is willing to address its cultural and legal indifference to sexual violence, it will continue to destroy the lives of young women.

As we have seen, there are many driven and intelligent young women on this campus who refuse to be silenced. To that end, I ask the law school to listen. In its capacity as an institution of professionalism and continued learning, I ask the law school to expand the discussion of criminal sexual misconduct in the curriculum, to create a culture where sexual harassment in the workplace is brought into the light and addressed, to fight against sexism in our male-dominated industry, and to integrate our student community into the campus at large, because criminal sexual misconduct does not end after we earn our bachelor’s degree.

 *   J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2014, Kalamazoo College. These remarks were originally presented at an informal forum on sexual assault at the University of Richmond School of Law on September 14, 2016, in the presence of faculty, staff, administrators, and students. The author acknowledges that these remarks are heterocentric, but stresses that the message is not limited to heterosexual interactions. Further, these remarks have been edited from their original presentation for clarity.

The Future of the Practice of Law: Can Alternative Business Structures for the Legal Profession Improve Access to Legal Services?

The Future of the Practice of Law: Can Alternative Business Structures for the Legal Profession Improve Access to Legal Services?

James M. McCauley, The Future of the Practice of Law: Can Alternative Business Structures for the Legal Profession Improve Access to Legal Services?, 51 U. Rich. L. Rev. Online (2016).

Click here to download PDF.

James M. McCauley *

Nationwide, law school admissions have plummeted to levels not seen in years. From 2010 to 2015, applications were down by 38 percent and down by nearly one-half over the last eight years.[1] Excluding perhaps some first-tier law schools, on the average, law schools are only placing about half of their new graduates in jobs that require a law degree and a law license.[2] The American Bar Association (“ABA”) mandated disclosure policies which forced law schools to reveal that they pay stipends to graduates to work short-term jobs in an effort to beef up their placement statistics.[3]

Yet law schools are currently graduating 40,000 plus graduates per year[4] with well over 1.2 million lawyers already in the United States, which translates to four lawyers for every 1000 persons.[5] Notwithstanding these disturbing statistics, new law schools continue to come on line each year. At the same time, significant increases in law school tuition coupled with widespread reliance on student loans as the primary funding source has left many young lawyers looking for work while facing significant financial challenges.[6] Encouraging even more students to go to law school only to enter a shrinking legal job market places the legal profession in jeopardy of not being able to correct this course and self-regulate its membership.[7]

Notwithstanding the oversupply of lawyers and the shrinking opportunities for placement in the legal services market, the unmet legal needs of the poor and middle class continues to grow. While there is approximately one lawyer for every 265 persons living in the United States,[8] only one legal aid attorney is available for every 6415 low-income people.[9] It is ironic that the job market challenges facing lawyers is occurring at a time when a substantial segment of the population cannot afford to retain a lawyer when confronted with a situation in which legal assistance would be advantageous. Multiple state and federal studies show that 80 to 90 percent of low and moderate income-Americans with legal problems do not obtain legal representation.[10] In its final report, the Virginia State Bar’s Study Committee on the Future of Law Practice observed:

Research shows that legal services in civil matters for low and moderate income persons or families are an unmet need. One study reports that 80% of civil legal needs of the poor and up to 60% of the needs of middle-income persons remain unmet. The reasons for this are varied: funding for legal aid for the indigent has been substantially reduced (legal aid funding in Virginia has been reduced by 20% and IOLTA revenue decreased from $500,000 in 2006 to $50,000 today); the cost of private legal representation has increased; individuals often fail to recognize that a problem requires legal assistance; some want to avoid involvement in the legal system and resolve the issue another way; and funding for the court system to assist unrepresented litigants is limited. The decrease in federal funding resulted in a 20% reduction of legal aid attorneys and staff statewide. At the same time, the population in poverty increased by more than 30%. There is no question that the need to increase legal services to these groups exists now and will continue to exist in the future.[11]

A consequence has been an explosion in self-representation in both transactional and litigation work.[12] Numerous commentators have sounded the alarm that the organized bar and its regulators need to rethink the nature and provision of legal services.[13] Some commentators believe that if the legal profession fails to take heed and right its course, the profession and its self-regulation will become irrelevant.[14]

The Virginia State Bar’s Study Committee on the Future of Law Practice has identified some other forces or trends challenging the profession and the traditional means by which it delivers legal services:

(1) advances in technology that have changed the way lawyers practice, giving clients the expectation that lawyers will provide services more efficiently and cheaply, and giving consumers the belief that they can obtain legal information and handle many legal matters on their own; (2) increasing competition from non-lawyer service providers that offer legal information and legal documents to consumers; (3) generational pressures that are likely to impact law firm business models—estimates are that 70% percent of law firm partners are baby boomers, while millennials are expected to make up half the global workforce by 2020; (4) clients’ dissatisfaction with billable hour arrangements encouraging lawyers to offer fixed fees and other alternative billing arrangements; (5) increased insourcing of legal services by corporate clients, along with increased unbundling of tasks so that lawyers are only asked to complete the specific tasks that require legal judgment; and (6) accelerated globalization of legal services via both traditional models and technology, leading to an increase in multijurisdictional law practice and a decreasing relevance of geographical boundaries.[15]

As can be seen, some of the forces come from within the profession, i.e., law school policies and billing for legal services. Other forces, though, are external and are beyond the legal profession’s control. Further, some of these forces appear permanent in nature,[16] indicating that there will be no turning back to “the good old days,” and therefore the profession must determine how to retool and reinvent itself in this post-recession global market.[17]

Enforcement of unauthorized practice laws against nonlawyer service providers will not be a cost-effective solution to stem the stronghold taken by companies like LegalZoom, a billion dollar enterprise which has served more than one million customers with its legal document preparation service.[18] Companies like LegalZoom, Avvo and Rocket Lawyer are prepared to fight for their share of the consumer legal services market through litigation[19] and by lobbying state legislatures to pass bills protecting them from being charged with unauthorized practice of law (“UPL”).[20] Professional regulatory authorities, with limited resources, are not equipped to wage war with the growing number of competitive nonlawyer service providers. Moreover, an unsympathetic public, a large portion of which is finding their legal needs largely unmet by the legal profession, will only view the bar’s enforcement of the UPL rules as anti-competitive barriers to access to legal services.

Some organized bars in the United States, including the American Bar Association, and Law Societies in British Columbia and Ontario, Canada,[21] have been studying developments in the United Kingdom and Australia which now allow professional service firms composed of lawyers and nonlawyers to serve the public. In the United Kingdom and New South Wales, Australia, lawyers are permitted to practice as part of an alternative business structure (“ABS”) in which nonlawyers hold an ownership interest and participate in the delivery of law-related services or are passive investors in firms that deliver legal services. In 2001, New South Wales enacted legislation permitting legal practices to incorporate, share receipts, and provide legal services either alone or alongside other legal services providers who may, or may not, be legal practitioners.[22] In addition to nonlawyer ownership, an incorporated legal practice (“ILP”) may be listed on the public stock exchange in Australia and outside investors may provide capital.[23]

In England and Wales, under the Legal Services Act of 2007,[24] alternative business structures that have lawyer and nonlawyer management and ownership are permitted and may either provide only legal services or legal services along with non-legal services.[25] In October 2010, Scotland’s Parliament approved a Legal Services Act[26] that permits and regulates alternative business structures in which Scottish solicitors are permitted to partner with nonlawyers and to seek capital from outside investors, provided solicitors hold the controlling ownership of the firm.[27] Under this regime, privileged communications by and between solicitors or nonlawyers with clients of the firm are protected by law.[28] As in England and Wales, a nonlawyer participant in the ABS must meet a “good character” requirement.[29]

Multidisciplinary practices are now permitted in Ontario, British Columbia and Quebec.[30] Lawyers must maintain control over the services the firm provides. Multidisciplinary Practices (“MDP”) are now permitted in Germany, the Netherlands, and Brussels.[31]

The District of Columbia is the only United States jurisdiction that permits nonlawyers to hold an ownership interest in a law firm.[32] The ABA rejected MDP in 2000[33] and the Virginia State Bar’s Council rejected MDP in 2003. Since that time, no organized bar in the United States has reconsidered either MDP or ABS; however, the legal services market landscape has changed dramatically over the ensuing years making it desirable to reexamine what regulatory structures may need reform, and how to implement those changes without sacrificing the core values of the lawyer-client relationship and the profession’s role of serving the public.

While the “Big-5” accounting firms’ encroachment into legal services was the impetus for the MDP movement,[34] a paradigm shift has since occurred in both the domestic and foreign legal services market in which smaller, but far greater in number, nonlawyer providers are competing with lawyers and law firms. Unable to obtain regulatory reform in the United States, some United States firms are forming alternative business structures in the United Kingdom where up to 25 percent of the ownership of the firm may be held by nonlawyers.

A key component to regulating ABS in the United Kingdom and in Australia is called proactive management-based regulation (“PMBR”). This regulatory framework holds the firm or entity accountable for noncompliance with ethical requirements. Each firm must designate a practice manager that interacts with the regulator on an informal, collaborative, and proactive basis, including random audits by regulators and required self-assessments, to ensure that their systems and procedures meet ethical and regulatory requirements. While an individual lawyer may be subject to professional discipline, sanctions may also be imposed against the legal services firm for non-compliance. In contrast, attorney regulation in the United States is reactive, based upon lawyer misconduct having occurred. In most United States jurisdictions, a law firm cannot be sanctioned if one of its lawyers engages in professional misconduct. The system implemented in Australia, which the profession there has embraced, is credited with up to a 40 percent reduction in disciplinary complaints against regulated firms and lawyers.

However, the legal profession in the United States remains steadfastly opposed to any regulatory reform that would permit either ABS or MDP.[35] The ABA Commission on Ethics 20/?20 was tasked with looking at the effects of globalization on the practice of law in the United States. The Commission considered a proposal to permit a limited form of nonlawyer ownership. That proposal was put out for comment, but ultimately the Commission did not make any recommendation, concluding that there did not appear to be a sufficient basis for recommending a change to ABA policy on lawyer ownership of law firms.”[36]

The New York State Bar Task Force on Nonlawyer Ownership was charged with evaluating the nonlawyer ownership proposal of the Ethics 20/?20 Commission. The Task Force found in a survey of its membership that over 78 percent of the members were opposed to the change, with the largest majority representing solo and small firms.[37] In the end, the 2012 Task Force Report found that there was a “lack of meaningful empirical data about nonlawyer ownership of law firms and what its potential implications are for the future of the legal profession.”[38] Similarly, a study conducted by the Ontario Trial Lawyers Association concluded that there is “no empirical data to support the argument that [nonlawyer ownership] has improved access to justice” in England or Australia.[39]

In 2014, the ABA Commission on the Future of Legal Services (“ABA Commission”) was created and charged with examining how legal services are delivered in the United States and recommending innovations to improve the delivery of, and the public’s access to, those services.[40] The ABA Commission held open forums across the country and looked at different types of legal service providers authorized to perform clearly defined roles at the state and federal level. The closest they came to addressing ABS was a resolution, passed by the ABA House of Delegates in February 2016, that urged “each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”[41] That resolution, however, reaffirmed support for the long-standing ABA policy against nonlawyer ownership of law firms.[42]

In April 2016, the ABA Commission stoked the debate again by issuing a sixteen-page issues paper for public comment on whether it should ask the ABA House of Delegates to pass a resolution encouraging state courts to liberalize ethics rules forbidding nonlawyer ownership in law firms and multidisciplinary partnerships between lawyers and other professionals.[43] Ultimately, since no proposal was submitted before the deadline for consideration by the House of Delegates, no action will be taken this year.

Thus, after two years of studying the delivery of legal services in the United States, the ABA Commission issued its final report, finding that 80 percent of the poor and middle income populations do not get the legal help they need and recommending broad changes for improving the delivery and access to legal services. Paralleling much of what has been recommended in the Virginia State Bar’s report, the ABA Commission did not suggest how the profession might address the issues of nonlawyer ownership of law firms, nonlawyers giving legal advice, and the regulation of nonlawyer legal service companies such as LegalZoom, Rocket Lawyer and Avvo Legal Services. The ABA Commission acknowledged that the traditional law firm model inhibits innovations that could enhance, and make more cost-effective, the delivery of legal services but did not recommend any changes in regulation that would remove the ethical constraints on nonlawyer ownership and fee sharing with nonlawyers.

The practicing bar’s resistance to nonlawyer ownership in law firms has been soundly criticized by scholars who view such resistance as “lawyer exceptionalism” or “lawyer-centric” thinking, based on an overwrought fear that nonlawyer ownership and investment will erode the core values of the profession and lawyer independence.[44] Academics are challenging the practicing bar’s insistence that only lawyers can perform and deliver all aspects of legal services:

There is an insidious consequence of believing that lawyers are the best, or only, resource for all tasks: it is that it downplays and demeans the “non-lawyer” input, whether that is another person, technology, a process or management. It is not surprising that there is an “us and them” divide between lawyers and others, that inefficiencies persist, or that potential remains unrealized, when such an unhelpful and insulting attitude is prevalent.[45]

There are legitimate concerns about ABS. Lawyers worry that concerns over profits and nonlawyer influence will override the lawyer’s professional obligations to the client and to the public, i.e., rendering pro bono legal services to the indigent.[46] But a categorical ban on any nonlawyer ownership and investment in the delivery of legal services assumes that professional and entity regulation are incapable of addressing these problems. Professor Judith McMurrow aptly describes the debate which I have witnessed as a liaison to the Virginia State Bar’s Study Committee on the Future of Law Practice:

U.S. bar opposition remains in part due to an empirical standoff. In policy discussions and informal conversations, proponents of change point to the benefits of non-lawyer ownership and investment and ask for proof that new models will erode professional judgment; opponents question whether there are meaningful benefits and demand proof that the changes will not impair professional judgment.[47]

While there is a concern that ABS and nonlawyer ownership will impair the lawyer’s independent professional judgment, the ABS firm, like any law firm, must attract, satisfy, and keep its clients. This factor alone should motivate professionals in the firm to perform their work competently and diligently, protect clients’ confidential information, and avoid conflicts of interest. Moreover, the regulatory systems in the United Kingdom and Australia offer additional checks and client protection. What remains to be seen, however, is whether ABS will materially increase pro bono legal services and move the profession closer to meeting the unmet legal needs of low and middle income populations in the United States.

A primary factor cited for these changes in the United Kingdom and Australia was public dissatisfaction with the traditional law practice model and the professional regulation of lawyers.[48] The regimes in the United Kingdom and Australia have been in place now for eight years or longer, so there soon should be some experiential and empirical data to analyze regarding their impact on the legal profession, service to the public, lawyer regulation and public protection. In fact, the ABA Commission has cited to eight empirical studies that were published in 2014–2015, that support at least these conclusions.

  1. There is no evidence that ABS has caused any harm or any erosion of the “core values” of the legal profession.
  2. ABS has increased the availability of capital and funding for law firms to innovate.
  3. Those jurisdictions that have adopted ABS have not abandoned it.[49]

With globalization of legal services, rapidly advancing technology and growing acceptance of new business structures in other foreign countries, traditional United States firms may face stiff competition from their overseas competitors or be economically pressured to form new business alliances with those firms. United Kingdom-regulated ABS firms have the potential to open the legal services market worldwide.[50] Consequently, the legal profession in the United States may not have the luxury to sit back and wait too long to seriously consider ABS. Some commentators believe that ABS will become a reality in the United States whether the organized bar accepts or opposes it.[51]

*   Ethics Counsel for the Virginia State Bar, Richmond, Virginia. J.D., 1982, University of Richmond School of Law; B.A., 1978, James Madison University.

        [1].    “The number of applicants dropped from 87,900 for fall 2010 admission to 54,500 for fall 2015 admission—a 38 percent overall decrease in applicants, according to the Law School Admission Council.” Daniel Coogan, Drop in LSAT Scores Could Affect Applicants, U.S. News & World Rep. (May 3, 2016, 8:30 AM), http://www.usnews.com/education/blo gs/law-admissions-lowdown/articles/2016-05-03/drop-in-lsat-scores-for-law-students-could-affect-applicants.

The 202 ABA-approved J.D. programs reported that 39,675 full-time and part-time students began their law school studies in the fall of 2013. This is a decrease of 4,806 students (11 percent) from the fall of 2012 and a 24 percent decrease from the historic high 1L enrollment of 52,488 in the fall of 2010.

ABA Section of Legal Education Reports 2013 Law School Enrollment Data, ABA (Dec. 17, 2013), http://www.americanbar.org/news/abanews/aba-news-archives/2013/12/aba_section _of_legal.html. Also, law school enrollments fell for the fourth straight year according to statistics released by the ABA.

The number of first-year students who showed up on law campuses this fall declined by 4.4 percent compared with the previous year, which amounts to 1751 fewer students. That means new student enrollment is down by nearly 28 percent since its historic peak in 2010, when many flocked to law school during the economic recession.

Karen Sloan, Law School Enrollment Continues Historic Decline, Nat’l L.J. (Dec. 16, 2014), http://www.nationallawjournal.com/id=1202679988741/Law-School-Enrollment-Con tinues-Historic-Decline. “US law school applications are down by nearly half from eight years ago.” Richard Gunderman & Mark Mutz, The Collapse of Big Law: A Cautionary Tale for Big Med, The Atlantic (Feb. 11, 2014), http://www.theatlantic.com/business/ar chive/2014/02/the-collapse-of-big-law-a-cautionary-tale-for-big-med/283736/.

        [2].    Jordan Weissman, The Jobs Crisis at our Best Law Schools is Much, Much Worse Than You Think, The Atlantic (Apr. 9, 2013), http://www.theatlantic.com/business/arch ive/2013/04/the-jobs-crisis-at-our-best-law-schools-is-much-much-worse-than-you-think/27 4795/ (“Nine months after graduation, just 56 percent of the class of 2012 had found stable jobs in law—meaning full-time, long-term employment in a position requiring bar passage, or a judicial clerkship.”). See Most People Attend Law School to Obtain Jobs as Lawyers, Above the Law: Top 50 Law Schools 2014, http://abovethelaw.com/careers/2014-law-sch ool-rankings/ (reporting 43 percent of graduates failed to secure a job in law in 2013) (last visited Nov. 17, 2016).

        [3].    The Price of Success, The Economist (Mar. 15, 2014), http://www.economist.com/ news/business/21599037-some-american-law-schools-are-paying-many-their-graduates-sal aries-price-success. Even leading law schools like University of Virginia and George Washington University were paying many of their newly graduated stipends or salaries to work in private law firms, non-profit organizations, and government. Id. For example, GWU paid salaries to 22 percent of its graduating class of 2012 and UVA paid salaries to 17 percent in order to pump up their job placements statistics for rankings in U.S. News & World Report. Id.

        [4].    Eric Posner, The Real Problem with Law Schools, Slate (Apr. 2, 2013, 2:50 PM), http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/04/the_real_prob lem_with_law_schools_too_many_lawyers.html (indicating median starting salaries have declined from $72,000 in 2009 to only $60,000 in 2012).

        [5].    “In other words, one lawyer for every 265 Americans.” Stephen J. Harper, The Lawyer Bubble: A Profession in Crisis 4 (2013); see also ABA National Lawyer Population Survey, 10-Year Trend in Lawyer Population by State (2016), http:// www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/2011_national_lawyer_by_state.autocheckdam.pdf.

        [6].    See Gunderman & Mutz, supra note 1 (noting that 85 percent of law graduates carry at least $100,000 in debt).

        [7].    As Eric Posner notes:

The figures are grim, and the human cost is real. Ninety-two percent of 2007 law school graduates found jobs after graduation, with 77 percent employed in a position requiring them to pass the bar. For the class of 2011 (the latest class for which there are data), the employment figure is 86 percent—with only 65 percent employed in a position that required bar passage. Preliminary employment figures for the class of 2012 are even worse. The median starting salary has declined from $72,000 in 2009 to $60,000 in 2012. A while back, the Bureau of Labor Statistics estimated that 218,800 new legal jobs would be created between 2010 and 2020. As law professor Paul Campos points out, because law schools graduate more than 40,000 students per year, those jobs should be snapped up by 2015—leaving only normal attrition and retirement spots left for the classes of 2016 to 2020. Meanwhile, tuition has increased dramatically over the last several decades. Students who graduate from law school today with $100,000 or more in debt will default on their loans if they cannot get high-paying work in the law.

Posner, supra note 4.

        [8].    See Harper, supra note 5, at 4.

        [9].    Legal Services Corp., Documenting the Justice Gap in America 21 (2007), http://www.lsc.gov/sites/default/files/LSC/images/justicegap.pdf.

      [10].    See Robert Ambrogi, Washington State Moves Around UPL, Using Legal Technicians to Help Close the Gap, ABA J. (Jan. 1, 2015, 5:50 AM), http://www.abajournal.com/m agazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_clo se_the_gap. The author attributes failure to retain a lawyer to the cost of legal services. Id. “The economics of traditional law practice make it impossible for lawyers to offer their services at prices these people can afford.” Id.

      [11].    Va. State Bar, Report: The Committee on the Future of Law Practice 13 (Sept. 24, 2016), http://www.vsb.org/docs/FINAL_Report_of_the_Study_Committee.pdf.

      [12].    Mark Andrews, Duties of the Judicial System to the Pro Se Litigant, 30 Ala. L. Rev. 189 (2013) (“Across the United States, an increased number of litigants have chosen to forego attorneys and instead represent themselves in court, particularly in civil matters.”); see also Madelynn Herman, Pro Se Statistics, Nat’l Ctr. for State Courts (June 21, 2006), https://www.nacmnet.org/sites/default/files/04Greacen_ProSeStatisticsSumma ry.pdf.

      [13].    See generally Richard Susskind, The End of Lawyers: Rethinking the Nature of Legal Services 7 (2010) (explaining that more efficient techniques for delivering legal services are emerging and lawyers should be encouraged to use them); Harper, supra note 5 (explaining the current culture of the legal profession).

      [14].    See, e.g., Susskind, supra note 13, at 7 (discussing the sustainability of the traditional lawyer’s role in today’s legal marketplace).

      [15].    Va. State Bar, supra note 11, at 1.

      [16].    Jeff Jacoby states:

Only some of [these forces] is cyclical. The legal profession, like so many others, has been permanently disrupted by the Internet and globalization in ways few could have anticipated 10 or 15 years ago. Online legal guidance is widely accessible. Commercial services like LegalZoom make it easy to create documents without paying attorneys’ fees. Search engines for legal professionals reduce the need for paralegals and junior lawyers.

Jeff Jacoby, U.S. Legal Bubble Can’t Pop Soon Enough, Bos. Globe (May 9, 2014), https: //www.bostonglobe.com/opinion/2014/05/09/the-lawyer-bubble-pops-not-moment-too-soon/q AYzQ823qpfi4GQl2OiPZM/story.html.

      [17].    As Noam Scheiber explains:

There are currently between 150 and 250 firms in the United States that can claim membership in the club known as Big Law, the group of historically profitable firms that cater to the country’s largest corporations. The overwhelming majority of these still operate according to a business model that assumes, at least implicitly, that clients will insist upon the best legal talent instead of the best bargain for legal talent. That assumption has become rickety. Within the next decade or so, according to one common hypothesis, there will be at most 20 to 25 firms that can operate this way—the firms whose clients have so many billions of dollars riding on their legal work that they can truly spend without limit. The other 200 firms will have to reinvent themselves or disappear.

Noam Scheiber, The Last Days of Big Law, New Republic (July 21, 2013), https://newre public.com/article/113941/big-law-firms-trouble-when-money-dries.

      [18].    Robert Ambrogi, Latest Legal Victory Has Legalzoom Poised For Growth, ABA J. (Aug. 1, 2014, 8:00 AM), http://www.abajournal.com/magazine/article/latest_ legal_victory_ has_legalzoom_poised_for_growth/. LegalZoom had provided services to about two million customers as of August 2012, according to a prospectus it filed with the U.S. Securities and Exchange Commission in advance of a planned, but still postponed, initial public offering. Id. In 2011, LegalZoom’s revenues reached $156 million and it was on track to bring in almost $200 million in 2012. Id.

      [19].    Va. State Bar, supra note 11, at 10.

LegalZoom does business in all 50 states and has delivered online legal document preparation since 2001. Efforts by regulatory bars to enjoin or shut down LegalZoom have not met with success. In 2014 the Supreme Court of South Carolina approved a settlement agreement in which it was stipulated that LegalZoom’s business model is not the unauthorized practice of law. On October 22, 2015, the North Carolina Bar and LegalZoom settled their case by a consent order, permitting LegalZoom to continue operating in North Carolina subject to some conditions[.] In June 2016, lawmakers ended the long-running dispute between the North Carolina State Bar and LegalZoom by passing legislation that allows online services to provide legal documents in that state.


      [20].    See id.

      [21].    See Canadian Bar Ass’n, Futures: Transforming the Delivery of Legal Services in Canada 34, 41 (Aug. 2014), http://www.cba.org/CBAMediaLibrary/cba_na/ PDFs/CBA%20 Legal%20Futures%20PDFS/Futures-Final-eng.pdf.

      [22].    See Slater & Gordon Ltd., Submission to the American Bar Association Commission on the Future of Legal Services (Dec. 29, 2014), http://www.american bar.org/content/dam/aba/images/office_president/slater_and_gordon_submission.pdf. Australia commenced an expansive approach to ABS that began in 1994 with the development and growth of Incorporated Legal Practices (ILPs). ABA Comm’n on Ethics 20/20 Working Grp. on Alt. Bus. Structures, Issues Paper Concerning Alternate Business Structures 7–8 (Apr. 5, 2011), http://www.americanbar.org/content/dam/aba/ administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf [hereinafter ABS Issues Paper]. There were over 2000 ILPs reported in 2010 and their number is growing rapidly. Id. There are around seventy known multidisciplinary practice (“MDPs”) and, as of the Working Group’s report in 2011, at least 20 percent of the lawyers in New South Wales were working in non-traditional business practices, including thirty MDPs. Id.

      [23].    Slater & Gordon Ltd., supra note 22.

New South Wales (NSW) was the first jurisdiction in Australia and indeed the rest of the (common law) world to permit external and non-lawyer ownership of law firms. This occurred on July 1, 2001 with the enactment of legislation permitting legal practices to incorporate, share receipts and provide legal services either alone or alongside other legal service providers who may, or may not be legal practitioners. Since the enactment of this legislation more than 3,000 law firms in Australia have altered their practice structures through incorporation (representing 30% of law firms). These law firms are known as “incorporated legal practices” (ILPs).


      [24].    Legal Services Act 2007, c. 29 (Eng.), http://www.legislation.gov.uk/ukpa/2007/29/ contents.

      [25].    ABS Issues Paper, supra note 22, at 13.

      [26].    Legal Services Act 2010, c. 2, § 49 (Scot.), http://www.legislation.gov.uk/asp/2010/ 16/section/49.

      [27].    Id.; ABS Issues Paper, supra note 22, at 15.

      [28].    ABS Issues Paper, at 16. The rule states:

The legal professional privilege applies to communications made to or by licensed providers in the course of providing legal services for any of their clients, as well as to or by others employed by the licensed entity who are acting in connection with the provision of legal services or who are working at the direction or under the supervision of a solicitor.

Id. (citing Legal Services Act 2010, c. 2, § 75 (Scot.)).

      [29].    ABS Issues Paper, supra note 22, at 11.

      [30].    Id. Some provinces have permitted nonlawyer ownership and/or MDP for some time. In Quebec, nonlawyers may own up to 50 percent of law practices, and law firms may engage in multidisciplinary practice. British Columbia permits MDPs. Id. at 6, 11.

      [31].    Id. at 16.

      [32].    See id. at 2.

      [33].    See id.

      [34].    Id. at 5; see also James M. McCauley, The Delivery of Legal Services Through Multidisciplinary Practices, Va. State Bar, http://www.vsb.org/site/regulation/legal-services-multidisciplinary-practices (last visited Nov. 17, 2016).

      [35].    Except for the District of Columbia, all U.S. jurisdictions have adopted versions of ABA Model Rule 5.4, which prohibits lawyers from sharing legal fees with nonlawyers and working in a firm in which nonlawyers have an ownership interest or hold positions of authority or control. See McCauley, supra note 34; Model Rules of Prof’l Conduct 5.4 (Am. Bar Ass’n 2016).

      [36].    See ABA Comm’n on Ethics 20/20, Introduction and Overview 8 (Feb. 2013), http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20121112_ethics_20_20_overarching_report_final_with_disclaimer.authcheckdam.pdf.

      [37].    N.Y. State Bar Ass’n, Report of New York State Bar Task Force on Nonlawyer Ownership 43 (Nov. 12, 2012), https://www.nysba.org/WorkArea/Download Asset.aspx?id=26682.

      [38].    Id. at 72.

      [39].    Memorandum from Jasminka Kalajdzic to Linda Langston, Ontario Trial Law Ass’n, ABS Research (Dec. 1, 2014), http://www.canadianlawyermag.com/legalfeeds/in dex.php?option=com_k2&Itemid=101&id=47&lang=en&task=download&view=item.

      [40].    See ABA Comm’n on Future of Legal Services, Issue Paper on the Future of Legal Services (Nov. 3, 2014), http://www.americanbar.org/content/dam/aba/images/offi ce_president/issues_paper.pdf.

      [41].    ABA Comm’n on Future of Legal Services, Report on the Future of Legal Services in the United States 69 (Feb. 8, 2016), http://www.americanbar.org/content/ dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf.

      [42].    See id.

      [43].    See ABA Comm’n on Future of Legal Services, Issues Paper Regarding Alternative Business Structures 1–5 (Apr. 8, 2016), http://www.americanbar.org/con tent/dam/aba/images/office_president/alternative_business_issues_paper.pdf.

      [44].    See Judith A. McMurrow, UK Alternative Business Structures for Legal Practice: Emerging Models and Lessons for the US, 47 Geo. J. Int’l Law 665, 673  (2016) (citing Sung Hui Kim, Lawyer Exceptionalism in the Gatekeeping Wars, 63 SMU L. Rev. 73, 74–76 (2010)); see also Leslie C. Levin, The Monopoly Myth and Other Tales About the Superiority of Lawyers, 82 Fordham L. Rev. 2611, 2612–14 (2014); Bridgette Dunlap, Anyone Can “Think Like a Lawyer”: How the Lawyers’ Monopoly on Legal Understanding Undermines Democracy and the Rule of Law in the United States, 82 Fordham L. Rev. 2817, 2818–19 (2014).

      [45].    McMurrow, supra note 44, at 673 (citing Stephen Mayson, Restoring a Future for Law 5 (Oct. 2013), http://stephenmayson.files.wordpress.com/2013/10/mayson-2013-restoring-a-future-for-law.pdf).

      [46].    See, e.g., Lawrence J. Fox, Accountants, The Hawks of the Professional World: They Foul Our Nest and Theirs Too, Plus Other Ruminations on the Issue of MDPs, 84 Minn. L. Rev. 1097 (2000); Cindy Alberts Carson, Under New Management: The Problem of Non-lawyer Equity Partnership in Law Firms, 7 Geo. J. Legal Ethics 593 (1994). A lawyer is supposed to render at least two percent of his or her professional time to pro bono legal services. Va. Rules of Prof’l Conduct 6.1(a) (Va. State Bar 2016). It is estimated that actual hours of pro bono service rendered is far below this aspirational goal. Va. Access to Justice Comm’n, Final Proposal to Adopt Pro Bono Reporting for Virginia Lawyers 2 (July 1, 2016), http://www.vsb.org/docs/access-reporting-2016/VATJ-VSB-prop-probono-report-070116.pdf. However, since there is no required reporting or recordkeeping it is difficult to determine how the bar is measuring up to its aspirational goal. Moreover, the organized bar is resistant to any regulatory measures that would require recordkeeping and reporting of pro bono hours an attorney has worked. Peter Vieth, Bar Won’t Back Pro Bono Reporting, Va. Law. Wkly. (Oct. 17, 2016).

      [47].    McMurrow, supra note 44 at 675.

      [48].    Id. at 707.

      [49].    ABA Comm’n on Future of Legal Services, supra note 43, at 11–15. New South Wales, Australia has now had ABS for fifteen years, and after witnessing the positive experience in New South Wales, all other jurisdictions in Australia decided to permit ABS. Id. at 5.

      [50].    For example, LegalZoom and Jacoby & Meyers are registered as ABS firms in the United Kingdom. Both firms have a long-term strategy to export their work product worldwide. Laura Snyder, Flexing ABS, 101 ABA J. 62, 68–70 (2015).

      [51].    Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future 122–31 (2013) (predicting new business structures to employ lawyers, such as global accounting firms, major legal publishers, legal know how providers, legal process outsourcers, high street retail businesses, legal leasing agencies, new-look law firms, online legal service providers, and legal management consultancies).

Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges

Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges

W. Hamilton Bryson, Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges, 51 U. Rich. L. Rev. Online 49 (2016).

Click here to download PDF.

W. Hamilton Bryson *

I take as my text and begin with Chapter 29 of the final version of Magna Carta of 1225,[1] which reads as follows:

No free man shall be taken or imprisoned or disseised of any freehold or of liberties or free customs . . . except by the lawful judgment . . . of his peers or by the law of the land . . .  to no one shall we sell, to no one deny or delay right or justice.[2]

This is said to be one of only three parts of the Great Charter still in force in Great Britain. But this is rightly so, for it is the heart and soul of the statute.[3]

This text ensures that a person’s property, body, and reputation will not be taken away before and without a trial in a court of law in which the judge observes the law and the due process thereof. This requires hearing the evidence and the arguments of all of the parties, after which, the judge applies the law to the facts of a case in order to reach a decision.[4]

This is the rule of law. This is the foundation of civilization.

Consider the opposite of the rule of law. It is the rule of force. The rule of force is tyranny by the powerful, not by the just. It is where the big fish eat the little fish and it is simply because they can; they have the power to do it. The rule of law is that right makes might. Without the rule of law, there can be no human rights. Human rights are the rights of an individual asserted against everyone else, if needed, such as the freedom of religion and of no religion. By contrast, if might makes right, society slips into anarchy as power moves from one person or group of persons to another. Anarchy is the opposite of freedom for these reasons. I hope that we can agree that anarchy is bad and that the rule of law is good. And I hope that we can agree that the rule of tyrants who are above the law is bad and the rule of law is good.

Consider another opposite of the rule of law. It is the rule of no law, anarchy. Anarchy is where the tyrants who are powerful do whatever they please because they can. It is unpredictable, and, therefore, not even the tyrants are safe. Anarchy is the opposite of civilization.

The rule of law requires access to the courts of law, and Chapter 29 of Magna Carta requires it.[5] The courts enforce the rule of law by putting it into effect by their due process, i.e., procedures for hearing the evidence and arguments of the parties before it. The procedure of the courts is the skeleton of the substantive law; the substance is the muscle of right.

The courts of law cannot function properly to administer the rule of law if they are not independent, independent not only of the political branches of the government but also of the will of the people. Human rights are not to be taken away by popular opinion or votes. Human rights are often unpopular with the majority of the people as well as with tyrants. A popular majority can act tyrannically and sometimes does.

The independence of the judiciary can be destroyed by financial corruption and by political intimidation. The focus of the remainder of my remarks is political control of judges. This is evil because it destroys the ability of the judges to administer the rule of law. Our federal and state constitutions all have checks and balances to prevent, or at least minimize, the political control of the judges. But most states provide for the popular election and re-election of the judiciary,[6] and this power of control has no limitation whatsoever. The abuses come from the power to reelect or not to reelect a sitting judge.

The power of popular election and re-election of judges was not intended to oppress the judiciary. The original idea was that, as we have popular election of the other branches government, so there should be a democratic election of the judiciary as well. Historically, this system worked satisfactorily because, as a matter of professional courtesy, no one ran in opposition to the re-election of a sitting judge. However, since about forty years ago, this convention has no longer been observed.

The sad, shocking result has been the intimidation of judges by the press and by the general public. If a judge’s application of the law in a particular lawsuit will cost votes and result in not being re-elected, this strikes at the independence of the judiciary, the foundation of due process and the rule of law.

Here are some examples of why the popular re-election of judges has become an evil thing.

One of the most notorious examples of judicial intimidation by the press was the prosecution of Dr. Samuel H. Sheppard of Cleveland, Ohio, for the murder of his socialite wife.[7] The judge in the case was due for an immanent re-election, and the prosecutor was running for election to a different judgeship.[8] Therefore, both needed the support of the press, and the press corp had decided that the defendant was guilty.[9] The United States Supreme Court eventually set aside of the conviction because the public pressure of the press corp on the judge had denied the defendant his fundamental right of due process in an impartial court of law.[10]

There is another recent United States Supreme Court case that illustrates this problem. In a recent trial in West Virginia, the defendant corporation was ordered to pay the plaintiff $50 million.[11] The defendant was going to and did appeal to the Supreme Court of Appeals of West Virginia.[12] Before the appeal was to be heard, one of the justices of that court came up for re-election.[13] A lawyer challenged that justice’s retention, running a campaign for his seat on the court. The challenger and his re-election committee received several million dollars from one person, the chief executive officer and president of the defendant-appellant in the case mentioned.[14] This was by far more money than from any other contributor to either judicial candidate and more than from all of the other contributors to both of them. The sitting judge was removed from the bench and the challenger was elected by a small majority.[15] Shortly thereafter, the appeal by the major contributor’s company, his employer, came before that court and before that new judge on a request for a reversal. The new judge refused to recuse himself. The court then, on a three to two vote, reversed the $50 million verdict, the new judge casting the tie-breaking vote to reverse this large verdict and judgment against his benefactor’s company.[16] Had he recused himself, the verdict and judgment would not have been reversed. The United States Supreme Court set the West Virginia judgment aside on the ground that the failure to recuse allowed that judge to influence the outcome of the litigation in favor of his financial supporter and denied the appellee due process of the law because it appeared that the court was not neutral.[17] The United States Supreme Court’s holding was by a vote of five to four.[18] An appellate court judge from Virginia said to me in a private conversation that she was shocked that it was not a unanimous decision, being such an egregious breach of judicial ethics.

A former student of mine who practices law in Richmond, Virginia, recounted to me that he was trying a case in West Virginia, and, during a recess, the bailiff said that the judge wished to see counsel in his chambers. When they went to see the judge, he asked for a contribution to his re-election fund. My friend refused to name the judge or say what he and the opposing counsel did.

Another student of mine from Texas told me that her father was a trial court judge there. In one case, he ruled against a lawyer’s motion in a completely routine case, and the lawyer went into a rage and started a campaign to defeat her father’s re-election. The ground of the campaign was that he abused his children and was soft on criminals. His daughter, my student, said that this was totally false as to any abuse and, in fact, he sat in a civil court that lacked criminal jurisdiction. However, in spite of the falsehoods, the good judge was not reelected.

When driving through the state of Maryland, one sees huge, expensive billboards urging the re-election of someone as judge of a particular court. One knows that the judge cannot afford to pay for the billboard; so one wonders who did and why. The speculation does not lead to confidence in the judicial system in the state of Maryland.

There was a recent campaign for a judicial position in Maryland near the District of Columbia. One of the candidates campaigned with the promise that, if elected, she would impose the maximum sentence on every person convicted of drunk driving. A very distinguished judge from Northern Virginia opined in a presentation to a meeting of the Richmond Bar Association that, if this judicial candidate were elected, then she must recuse herself from every drunk driving case because she had committed herself to the sentence before hearing argument on its appropriateness. I do not know the outcome of the election, but the campaign promise itself impugned the integrity of the judicial process.

Justice Penny J. White, while a member of the Supreme Court of Tennessee, ruled against the death penalty as applied in a particular case.[19] Her position was highly unpopular with the law and order and victims’ rights element of her state; they clearly did not understand the subtle distinctions of the law that Justice White was applying. She was not reelected because of the legal position she had taken, even though she was part of a majority of the judges in the court’s decision and her opinion was entirely rational.[20]

Here are some random examples from Ohio, West Virginia, Texas, Maryland, and Tennessee. I am sure many others can be easily found elsewhere.

The desire to influence the outcome of litigation in one’s own favor is, of course, only natural. It is, in fact, the purpose and goal of every lawyer’s argument in court. But this is done according to the due process of the court. However, to attempt to influence the judge’s decision, not by argument and evidence presented in open court, but by an appeal to the judge’s sympathy for an unfortunate person or to corrupt the legal process by bribing him or her or appealing to a fear of not being reelected, this is the problem. All judges will be tempted to unworthy behavior, as they live in the same world as the rest of us; they should resist temptation to do evil, as we all should. Fortunately, they usually do. But we need to make it as easy as possible for them to do so. The one thing that can and should be done is to remove the fear that an upright and honest judge has in an insecure system of judicial tenure that requires re-election by a popular vote, which must be subject to irrational political pressures. Where popular re-election of the judiciary interferes with a judge’s application of the law, the rule of law itself is defeated.

The problem, therefore, is to find a workable way of protecting the good judges and of removing the bad ones. The solution of the English and the American federal systems is to have judges sit during good behavior, which means in effect for life because it takes a judicial proceeding in a court of law to prove bad behavior. Virginia and some few other states protect sitting judges by having the periodic re-election done by the legislature. This provides an effective shield against misdirected popular opinion. However, the popular vote for re-election of sitting judges is the norm for state judiciaries.

The conclusion that comes to mind to correct this is to amend the thirty-nine state constitutions that require the popular re-election of judges to find another method of removing bad judges. While it may be unpalatable to the press corps, the politicians, and petty tyrants, it is necessary to preserve the rule of law, which is the foundation of our liberty. This is the requirement of the spirit of Magna Carta.

Democracy, freedom, and the rule of law we have, more or less, but we need to make things better for ourselves and for our nation. We must strive for improvement, and we cannot take for granted what we have.

* Blackstone Professor of Law, University of Richmond School of Law. LL.D., 2013, University of Cambridge; Ph.D., 1972, University of Cambridge; LL.M., 1968, University of Virginia School of Law; LL.B., 1967, Harvard Law School; B.A., 1963, Hampden-Sydney College.

This essay was first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C.

        [1].    The original version of 1215 was immediately repudiated by King John with the consent of the pope. See W.H. Bryson, Papal Releases from Royal Oaths, 22 J. of Ecclesiastical Hist. 19, 21–22 (1971).

        [2].    Sir J. Baker, The Legal Force and Effect of Magna Carta, in Magna Carta: Muse & Mentor 65, 70 (Randy J. Holland ed., 2014).

        [3].    See generally id. at 70–84 (discussing why chapter 29 is the key surviving provision of Magna Carta).

        [4].    See id. at 71–75.

        [5].    See id. at 84.

        [6].    See Fact Sheet on Judicial Selection Methods in the States, Am. Bar Ass’n, http:// www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf (last visited Oct. 21, 2016) (noting thirty-nine states total hold partisan, nonpartisan, or uncontested retention elections for trial courts of general jurisdiction).

        [7].    Paul Holmes, The Sheppard Murder Case 3–8 (1961); Cynthia L. Cooper &  Sam Reese Sheppard, Mockery of Justice: The True Story of the Sheppard Murder Case 14–19 (1995); James Neff, The Wrong Man: The Final Verdict on the Dr. Sam Sheppard Murder Case 56–57(2001).

        [8].    Sheppard v. Maxwell, 384 U.S. 333, 341–42 (1966).

        [9].    Id. at 362.

      [10].    Id. at 362–63.

      [11].    Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 872 (2009).

      [12].    Id. at 873.

      [13].    Id.

      [14].    Id.

      [15].    Id.

      [16].    Id. at 874.

      [17].    Id. at 889–90.

      [18].    Id. at 871, 890.

      [19].    Dan Levine & Kristina Cooke, Uneven Justice: In States With Elected High Court Judges, A Harder Line On Capital Punishment, Reuters (Sept. 22, 2015, 2:00 PM), http:// www.reuters.com/investigates/special-report/usa-deathpenalty-judges/.

      [20].    State v. Odom, 928 S.W.2d 18, 33 (Tenn. 1996).

Virginia Executioner to Wear a Cloak: Diversion from the Real Controversy

Virginia Executioner to Wear a Cloak: Diversion from the Real Controversy

Paul G. Gill, Virginia Executioner to Wear a Cloak: Diversion from the Real Controversy, 51 U. Rich. L. Rev. Online 43 (2016).

Click here to download PDF.

Paul G. Gill *

Recent amendments to Virginia law made confidential and exempt from the Freedom of Information Act identifying information for those who contract with the Commonwealth to compound drugs necessary to carry out an execution by lethal injection.[1]

The amendments were not without controversy.[2] But debating whether to identify or cloak those who help an execution take place deflects attention from the real legislative question about capital punishment: Does it have benefits which outweigh its costs, financial and otherwise? This article briefly explores that question, suggesting that if execution is examined by evidence-based standards we otherwise commonly apply to sentencing, the answer is clear.

I. Penology Warrants an Evidence-Based Rationale for Sentencing

“Certainty is missing the point entirely,” opined one author about religious faith.[3] Americans enjoy tremendous freedom to select and practice our faith as we see fit.[4] Apologetics aside, we do not generally require a person’s faith to be rational.

But penology is not religion. Striving for certainty, at least, makes sense. Sentencing practices should be informed by evidence that they advance legitimate goals of penology. State legislatures seem to agree, based on their laws mandating evidence-based practices in one or more aspects of criminal justice.

II. Existing State and Federal Practices for Non-Capital Cases Reflect this Principle

Alabama requires the use of evidence-based practices in the supervision, treatment, and providing of services to criminal offenders.[5] Arkansas defines evidence-based practices as “policies, procedures, programs, and practices proven by scientific research to reliably produce reductions in recidivism.”[6] The Alaska Criminal Justice Commission has the immodest task to evaluate whether sentencing laws provide for public protection, community condemnation of the offender, rights of crime victims and accused, restitution, and the principle of reformation.[7] It must also consider the efficacy of evidence-based restorative justice initiatives on convicted persons, their victims, and the community.[8]

Evidence-based practice mandates exist in many other states.[9] This is consistent with the 2007 resolution of the Conference of Chief Justices and the Conference of State Court Administrators for states to adopt sentencing and corrections policies and practices “based on the best research evidence of practices shown to be effective in reducing recidivism,” including the use of actuarial tools to identify particular factors related to recidivism.[10]

Federally, the United States Sentencing Commission’s guidelines are supposed to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.”[11] The Commission is also to develop “means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.”[12]

III.  Decades of Research Fail to Demonstrate that Capital Punishment Deters Capital Crime

Even if one perceived evidence-based practices as more relevant for less serious cases than capital ones, the question remains: What evidence, actuarial or otherwise, supports the use of capital punishment on grounds that it deters violent crime?[13] The
most definitive recent response comes from a 2012 report which summarized more than thirty years of research as follows:

The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.[14]

Put another way, executions have not consistently demonstrated marginal effect on homicide rates that is not achieved by life or long-term imprisonment.[15]

Accepting this proposition, it is hardly radical to suggest capital punishment “offers no practical benefits to weigh against its social costs.”[16] Those costs include the execution or long-term imprisonment on death row of innocent people;[17] the direct financial (and other) costs of drawn out death penalty litigation;[18] and the indirect costs of a capital punishment system that continues to struggle with how to confidently and fairly make and implement a sentencing decision unlike any other.

IV. Let Us at Least Debate the Right Question

At least two of our current slate of eight Supreme Court justices would rather go beyond debating death penalty implementation, to “ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”[19] That is a debate worth fearlessly having anew, as is the cost-benefit debate in state and federal legislatures. The resolution of those debates could make moot whatever controversy exists over “hooded executioner” bills.

  *     Assistant Federal Public Defender, Richmond, Virginia. J.D., 1990, University of Richmond School of Law; B.A., 1983, University of Virginia. The author has tried or otherwise resolved federal capital cases in which pursuit of the death penalty was authorized.

        [1].    Act of Apr. 20, 2016, ch. 747, 2016 Va. Acts __ (codified as amended as Va. Code Ann. § 53.1-234 (Cum. Supp. 2016).

        [2].    See, e.g., Editorial Board, Virginia’s False Choice on the Death Penalty: Barbarism or Secrecy, Wash. Post (Apr. 13, 2016), https://www.washingtonpost.com/opinions/virgin ias-false-choice-on-the-death-penalty-barbarism-or-secrecy/2016/04/13/d438b3e4-0022-11e 6-9203-7b8670959b88_story.html?utm_term=.00b9a9455387. See generally Ellyde Roko, Executioner Identities: Toward Recognizing a Right to Know Who is Hiding Beneath the Hood, 75 Fordham L. Rev. 2791 (2007) (advocating such a right).

        [3].    Anne Lamott, Plan B:  Further Thoughts on Faith 257 (2005).

        [4].    See, e.g., U.S. Const. amend. I; James Madison, Madison Papers, The Founder’s Constitution 85 (P. Kurland & R. Lerner eds., 1987) (“[N]o man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”).

        [5].    Ala. Code § 15-18-174(8), -(9) (LexisNexis 2016).

        [6].    Ark. Code Ann. § 16-93-101(4) (2016).

        [7].    Alaska Stat. § 44.19.645(a) (2015).

        [8].    Id. § 44.19.646(2)(L). Oversimplifying greatly, restorative justice focuses on the healing of victims, acceptance of responsibility by offenders, and reconciliation between them through apology, forgiveness, and mutual understanding. See, e.g., Kristen F. Gurnewald & Priya Nath, Defense-Based Victim Outreach: Restorative Justice in Capital Cases, 15 Cap. Def. J. 315, 316–17 (2003). It has long had application to death penalty cases, where it has facilitated agreed dispositions of a sentence other than death. See id. at 315–16, 333–52.

        [9].    See, e.g., Ariz. Rev. Stat. § 8-807(B) (LexisNexis 2016); Cal. Penal Code § 17.5(4) (Deering 2016); Ga. Code Ann. §§ 42-2-11(c)(2)(A)(i)–(ii)(B) (2016); Ky. Rev. Stat. Ann. § 439.3103(1)(a) (LexisNexis 2016); Md. Code Ann., Pub. Safety § 1-401(g)(6) (LexisNexis 2016); Mich. Comp. Laws 791.408(4)(c) (LexisNexis 2016); 61 Pa. Cons. Stat. Ann. §§ 6131(a)(13)-(14), -(d) (LexisNexis 2016); Wash. Rev. Code Ann. § 13.40.0357 (Option B)(1)(a) (LexisNexis 2016).

      [10].    Jennifer K. Elek et al., Nat’l Ctr. for State Courts’ Ctr. for Sentencing Initiatives, Using Risk and Needs Assessment Information at Sentencing: Observations from Ten Jurisdictions 1 (2015), http://www.ncsc.org/~/media/microsites /Files/CSI/RNA%20Guide%20Final.ashx (quoting Con. of Chief Justices & Conf. of St. Ct. Adm’rs., Nat’l Ctr. for St. Cts., Resolution 12 In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism (2007), http://ccj. ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08012007-SupportSentencing-Public-Sa fety-Reduce-Recidivism.ashx).

      [11].    28 U.S.C. § 991(b)(1)(c)(2012).

      [12].    Id. at § 991(b)(2).

      [13].    A prison term of life without parole should logically be as effective as a death sentence at satisfying sentencing goals of protecting the public and preventing the defendant’s further crimes. Cf. Bureau of Justice Statistics, Mortality in Local Jails and State Prisons, 2000–2010—Statistical Tables 6, 14 (Dec. 2012), http://www.bjs.gov/ content/pub/pdf/mljsp0010st.pdf (noting homicide rate consistently at five or fewer per 100,000 in state prisons and jails); Brian Palmer, Which is Safer: City Streets or Prison? Slate  (June 19, 2013, 2:29  PM), http://www.slate.com/articles/news_and_politics/explain er/2013/06/murder_rate_in_prison_is_it_safer_to_be_jailed_than_free.html (noting this rate is lower than the national non-prison average, and less than one-tenth the prison rate in 1980). Life in prison permits rehabilitative efforts; death obviously limits those, and related restorative justice goals. Retribution and punishment remain the top rationale for death penalty supporters in the general public. See Art Swift, Americans: “Eye for an Eye” Top Reason for Death Penalty (Oct. 23, 2014), http://www.gallup.com/poll/178799/america ns-eye-eye-top-reason-death-penalty.aspx.

      [14].    Nat’l Acad. of Sci. Comm. on Deterrence & the Death Penalty, Deterrence and the Death Penalty 2 (Daniel S. Nagin & John V. Pepper eds., 2012).

      [15].    This is consistent with the long-supported view that certainty and/or swiftness of punishment may have deterrent value, but “[i]maginable increases in severity of punishments do not yield significant (if any) marginal deterrent effects.” Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28–29 (2006).

      [16].    John Lamperti, Does Capital Punishment Deter Murder? A Brief Look at the Evidence, at 1 n.2 (2010), https://www.dartmouth.edu/~chance/teaching_aids/books_articles/ JLpaper.pdf.

      [17].    See id.; see also Samuel R. Gross, et al., Rate of False Conviction of Criminal Defendants Who are Sentenced to Death, Proc. of the Nat’l Acad. of Sci. (Apr. 5, 2013), http://www.pnas.org/content/111/20/7230.full.pdf (offering “conservative estimate” that “if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated”).

      [18].    See Jeffrey A. Fagan, Capital Punishment: Deterrent Effects & Capital Costs, Colum. L. Sch. (2006), https://www.law.columbia.edu/law_school/communications/reports/ summer06/capitalpunish (noting that Florida spent $25 to $50 million more per year on capital cases than it would have if the death penalty was not at issue, and Indiana bore $37.1 million added expenses); Noah Berlinger et al., Deterrent Value and Cost of Death Penalty, U. Vt. Leg. Res. Shop (Apr. 2001), http://www.uvm.edu/~vlrs/doc/deathpenal ty.htm (summarizing research on death penalty’s marginal costs of up to six times that of prosecuting and incarcerating for life). Federally, median defense costs alone for capital crimes in which the death penalty was authorized by the Department of Justice exceeded $353,000, increasing to $465,602 for cases that were tried. The median was only $44,809 for federal capital cases not authorized, in a survey of cases from 1998 to 2004. See Jon B. Gould & Lisa Greenman, Report to the Committee on Defender Services Judicial Conference of the United States Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases 24–25 (2010), http://www.us courts.gov/services-forms/defender-services/publications/update-cost-and-quality-defense-representation-federal (follow “report” hyperlink to download pdf).

      [19].    Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting).