Williams College Law Journal, Volume II, Issue I

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The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary undergraduate publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field.

We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. If you are an alum, professor, or lawyer, you can also submit a short piece that is aimed at educating undergraduate students about careers, educations, or experiences in the legal field.

Essays can be submitted via email or our website http://williamscollegelawsociety.com/lawjournal/submit/ The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support.

Williams College Law Society Williams College Council Williams College Dean’s Office Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267 WilliamsCollegeLawJournal@gmail.com www.WilliamsCollegeLawSociety.com/lawjournal

COVER: Design by Gloria Joo

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WILLIAMS COLLEGE LAW JOURNAL Volume II Issue I Fall 2012 Table of Contents Letter from the Editor--------------------------------------------------------------------iii Law Society Update------------------------------------------------------------------------1 Legal News Update-------------------------------------------------------------------------2 Competing With and Against Each Other: Sports Antitrust Law Dylan Glenn----------------------------------------------------------------------------------4 Human Rights vs. Security: The Dilemma of Torture in the Modern Age Kirk Schneider------------------------------------------------------------------------------16 When Good Courts Go Bad: Why the Supreme Court Got It Wrong in Citizens United Joseph Nania--------------------------------------------------------------------------------25 Government Oversight of Sports Leagues Amanda Cluse-------------------------------------------------------------------------------37 Marshall’s Legacy Becky Tseytkin------------------------------------------------------------------------------41 Interview with Marcus Christian: Executive Assistant U.S. Attorney Corbin Chu----------------------------------------------------------------------------------50

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LETTER FROM THE EDITOR Law Journal Editorial Board Editor-in-Chief Corbin Chu Managing Editors Becky Tseytkin Yogeeta Chatoredussy Associate Editors Markus Gonzales Caroline Kaufman Binh Duong Dayoung Lee Gloria Joo Williams College Law Society Executive Board PRESIDENT Emanuel McMiller VICE PRESIDENT Narah Moon SECRETARY Yogeeta Chatoredussy TREASURER Benjamin Stone

Dear Reader, It is my distinct pleasure to introduce to you the Williams College Law Society’s fourth issue of its Law Journal. It is definitely a perk as an editor for the Journal to read about various, fascinating topics in the legal world. Thus, it has been very exciting to see the Journal evolve in both its design and scope of its content. This time around, we received many quality articles and ended up highlighting areas such as sports law and the impacts of courts in the legal system.

It is my hope that the Journal can continue its path in improving its accessibility and attracting interesting content.

Law does not have to be dull and lifeless. In fact, as a reflection of our society’s values, law continues to be artful and requires our creativity to constantly be adapted to serve the greater good. I hope that the Journal serves as a medium for these ideals.

Without further ado, I welcome you to the fourth issue of the Law Journal. I hope we will see your submission in our next issue.

Best wishes, Corbin Chu’15 Editor-in-Chief

PUBLIC RELATIONS Gloria Joo EVENTS Shanice Scantlebury EDITOR-in-CHIEF Corbin Chu LAW TEAMS Yazmine Nichols LEGAL EDUCATION Nick Dyja FRESHMAN REP John Martin

The Williams College Law Journal is published at least twice a year.

Previous editions of the Law Journal can be found online on our website.

The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, or Williams College.

All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.

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Law Society Update The Law Society, at the end of its fourth semester, has had another great and successful season.

This past semester, the Law Society sent a team to compete for the first time in Mediation tournaments organized by the InterNational Academy of Dispute Resolution. They attended the 1st Annual Northeast Regional Mediation Competition in late September at Northeastern Law School in Boston, Massachusetts where Desiree Daring was awarded the 8th Place Mediator Award. The team then went to the Brenau University in th Gainesville, Georgia for the 13 Annual National Intercollegiate Mediation Tournament where Desiree Daring was awarded the 13th Place All-American Individual Mediator Award. In addition, the team was awarded the 2012 Outstanding New Team Award. The Law Society also sent three teams in November to represent Williams College for the second time at the Moot Court regional tournament in Fitchburg, Massachusetts, and will send a team to compete in February at the Mock Trial regional tournament in Boston.

Over the summer, the Law Society released its Special Edition of the Law Journal, which focused on Marine & Coastal Policy and was the product of collaboration between the students of the Williams College Law Society and the students of the Williams-Mystic Program. The Society also adopted a mascot, created by Public Relations Director Gloria Joo, named Willy LAWrence. Over the course of the Fall, the Law Society’s total membership increased to just over 200 students, with more than 40 active members. The Society also held several exciting events throughout the semester ranging a wide number of topics from sexting for underage teens with Judge McEnemy, sports and entertainment law with Jack Sands’71, legal representation of academic institutions with Jeff Jones’66, careers in law with Marcus Christian’90, health care and physician assisted suicide, with Professor Pedroni, to helping students figure out their path to law school with Pre-Law Advisor Michelle Shaw’91. These events would not have been possible without the support of various faculty, alumni, and lawyers in the Berkshire area.

The Law Society has several exciting events planned for the spring semester. On Thursday, January 31st, for Claiming Williams Day, U.S. Attorney Carmen Ortiz will be leading a discussion entitled “Avoiding Hate Crimes and Building Advocacy.” The Society is also working with various departments to put together a Space Law Forum in mid-April to discuss career paths in the field as well as the current status of the legal structure surrounding space exploration, and commercial space use. This year’s American Bar Association theme for Law Day (May 1st) is “Realizing the Dream: Equality for All.” The Law Society and Davis Center are coordinating event planning in order to develop an engaging Law Day program. The Society will also host its 2nd Annual Networking Dinner this year on May 3rd for members to network with alumni in the legal field.

One of the purposes of the Law Society is to bring together students with an interest in law, and to engage and network with alumni, faculty, and legal professionals lawyers. If you would like become involved in and support the Law Society, please send us an email WilliamsCollegeLawSociety@gmail.com or visit our website http://williamscollegelawsociety.com/about/get-involved/. You can also like us on Facebook, https://www.facebook.com/WilliamsCollegeLawSociety.

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Legal News Update: 2013–A Look at the Year Ahead _________________________________ Nick Dyja’16 Legal Education Coordinator __________________________________ As we wrap up 2012 and look back at the volume of landmark decisions handed down from various benches, we also look forward, to 2013, and anticipate an equally compelling year in legal news. In constitutional law, the Supreme Court will hear arguments regarding United States v. Windsor and Hollingsworth v. Perry in late March. The first case, a federal challenge to Congress’ 1996 Defense of Marriage Act (DOMA), is likely to result in DOMA’s demise.

Hollingsworth v. Perry contests California’s 2008 constitutional amendment banning gay marriage; opinion is split on how the court will rule on it. The Roberts Court recently heard arguments in Missouri v. McNeely, a case that will determine whether or not a law enforcement official may obtain a nonconsensual, warrantless blood sample from a drunk driver due to exigent circumstances. And in January, the Supreme Court agreed to accept six new cases for review, the most compelling being Salinas v. Texas. The case will determine whether the right to remain silent exists for an individual being interviewed by the police who has been neither arrested, nor read his/her Miranda rights.

We anticipate that New York City’s controversial “Stop-and-Frisk” program will continue to be challenged, bolstered by District Court Judge Shira Scheindlin’s injunction prohibiting unjustifiable Stop-and-Frisks outside of certain apartment buildings in the Bronx.

With Oscar season in full swing, Zero Dark Thirty will perhaps fuel the ongoing debate over whether or not photos of Osama bin Laden’s body should be released. The panel is being asked to either release the photos, or provide a better explanation on how the images would be a direct threat to national security. Victims of super-storm Sandy are readying for long legal battles with insurance companies, landlords, and even federal agencies. These cases, while perhaps not on any new legal frontier, make compelling human-interest stories, and thus will stay in the media for quite some time.

The case that will interest most of us here at Williams College, however, is Fisher v.

University of Texas at Austin. Fisher is a challenge to the University of Texas at Austin’s use of race in undergraduate admissions decisions. Abigail Fisher, who was denied admissions to the Volume II Issue I ! Fall 2012

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Legal News Update university, claims that a Texas program automatically admitting any Texas high school student who graduates in the top ten percent of his/her class created a diverse student body by itself, and thus the university did not need to consider race in admissions. Grutter v. Bollinger, the apparent precedent for this case, held that the University of Michigan Law School could consider race as one factor in its admissions process in its attempts to create a diverse student body. The future of affirmative action is certainly compelling to us, but makes up only a small part of what will we believe will be a busy legal year.

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Competing With and Against Each Other: Sports Antitrust Law _________________________________ Dylan Glenn University of Michigan __________________________________ Sports are an integral part of culture the world over. As a multi-billion dollar industry each year men, women and children pour hard-earned dollars into team apparel and tickets to games of their favorite sports teams. Following an exciting finish to the 2011 Major League Baseball season, ESPN SportsCenter anchor Scott van Pelt succinctly described Americans’ love of sports by declaring, “sports are better than anything else, always.”1 Why sports are so exciting is because of their competitive nature. Rooting for one’s team to be the best, something that can be clearly determined through on-field competition, drives a great emotional investment for many people. The competition that we love so much also creates an interesting situation from a business standpoint. Ironically enough, a business that predicates itself on competition of two teams requires the hindrance of economic competition to ensure the value of its product. The four major sports leagues of the United States are provided with a level of antitrust exemption because of the nature of value creation in their business models, and the externalities and freerider problems they encounter. This exemption has been disputed greatly over the years, beginning with the courts siding with the leagues or with Congress taking corrective action to support league goals. Recently, however, in two specific examples this paper will examine, the courts have moved to slow the league’s desire for greater bargaining power.

History and Background of Antitrust Exemptions Three of the four major sports leagues – the National Football League, National Basketball Association, and National Hockey League – were granted a partial antitrust exemption in the Sports Broadcasting Act of 1961. (The other league, Major League Baseball already had a full exemption at that point following the Federal Baseball Club of Baltimore v.

National League of Professional Baseball Club2 decision). The Act was a response by Congress specifically to decisions of courts ruling that the NFL was violating the Sherman Antitrust Act 1Scott van Pelt, "SportsCenter 9/27/2011,"SportsCentner, ESPN. Television.

2 Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs 259 U.S. 200 (1929)

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Competing With and Against Each Other when negotiation television contract rights for all teams. Following its passage, the Act then allowed for each of the leagues to collectively negotiate television rights. In this specific case, Congress acted to increase the efficiency of the advertising market: with the entire league negotiating together, the national television audience could be segmented, and advertisers would have a better idea of who they were marketing to when they purchased time on television networks.3 Beyond the Sports Broadcasting Act of 1961, sports antitrust issues have a long and rich history in the courts. In early cases, the courts ruled largely in favor of sports leagues, often expanding owners’ power over players.

In Federal Baseball Club, the Supreme Court

unanimously upheld the rights of an owner over a player even after the expiration of the player’s contract in what is known as the reserve clause. The Court also held that baseball did not constitute interstate commerce and therefore was not subject to the Sherman Act.4 This decision was upheld 30 years later in Toolson v. New York Yankees5, a case again pertaining to an agreement between the MLB and the Mexican League to honor each others’ reserve clauses.

Though the dissenting opinion written by Justice Harold Burton made the case that Major League Baseball had grown to the size where it should be subject to the Sherman Act, seven justices ruled that because Congress had taken no action over the past 30 years, it was not the place of the Court to overrule the previous decision.6 As for the justifications for this exemption, it starts with the value creation of sports competition. Each professional sports team (in the case of these four leagues) is its own separate business. However, that business alone offers little value compared to the revenues made after coordination. NFL football or Major League Baseball or NHL hockey requires two teams competing. Based upon this, there has to be some level of cooperation between the teams to coordinate such a competition. Thus, if the New York Yankees and Boston Red Sox decide to play a game of baseball against each other, there has to be a cooperation to decide in where and when the game will take place, and under what rules the game will be played.7 In fact, while each team is competing to be the best team each and every year, from a business standpoint they

3 Ira Horowitz, “Market Entrenchment and the Sports Broadcasting Act,” American Behavioral Scientist 21 no. 3 (January 1978):415-430. doi: 10.1177/000276427802100308 4 Federal Baseball Club, 259 U.S. at 208 5 Toolson v. New York Yankees 346 U.S. 356 (1953) 6 Toolson, 346 U.S. at 356 7 Franklin M. Fisher, Christopher Maxwell and Evan Sue Schouten, :Sports League Issues: The Relocation of the Los Angeles Rams to St. Lois,” in The Antitrust Revolution, 4th ed., ed. John E. Kwoka, Jr. and Lawrence J. White (New York: Oxford Press, 2004), 277-278.

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Williams College Law Journal benefit most from parity. This is so, because a competitive league is most attractive to fans who want to believe their team has a chance to win a league championship. These hopeful supporters then pay for tickets, merchandise, and tune in more often to games, raising ratings, and leading to higher ad revenues and richer television contracts for teams. The goal of the antitrust exemption, then, is to make sure that the teams in each league are given enough leverage to work together to maintain this level of competition that drives their product’s value.8 Without the cooperation, as noted, there would be no product to sell, but more importantly, problems such as free riding and negative externalities would not be accounted for creating inefficiencies.9 Though externalities and free riding are problems most associated with public goods and environmental policy, they are certainly issues that face sports leagues. A prime example of these problems was illustrated in the 1995 relocation of the Los Angeles Rams to St. Louis. Under NFL rules, the relocation of a team requires both the consent of both the League Commissioner as well as a three-fourths majority of all teams.10 The St. Louis Convention and Visitors Center, which had built a stadium in hopes of securing an NFL team to either move to or expand to St. Louis, sued the NFL deeming this anticompetitive, but lost the case.11 This control over relocations is granted because of externalities and free riding. Each NFL team benefits from the development of the entire League. That is, if some teams in the League are making the NFL an exciting and attractive product then all teams will benefit from fan interest. Therefore, an owner and community that gains an NFL team, either through relocation or expansion, is also gaining the demand for NFL football that has been created by all the other teams over the League’s history. The facilities and people that will see benefits from this demand, in this case the St. Louis CVC, did nothing to create this demand but are free riding off others. The solution to this problem is to allow all to coordinate and vote on relocations and expansions, as well as determine a fair payout to the existing teams for the demand they have created.12 Moreover, there are negative externalities that arise with relocation. First, if teams were able to relocate freely, the geographic diversity of the league could be put in jeopardy. This is certainly not in the best interest of the league as a large geographic area without a team will alienate fans who would then have no team to root for and no games to easily and frequently 8 Fisher, Maxwell, and Schouten, “Sports League Issues,” 285 9 Ibid 282, 291-293 10 Ibid 292 11 Ibid 283-284 12 Ibid 291-292

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Competing With and Against Each Other attend. In addition, when a team relocates, its rival team is hurt, and would have no say on the movement without relocation restrictions. For instance, if the Chicago Bears were to move to Los Angeles, they could benefit greatly from the high revenues to be earned in the second most populated city in the country. However, the Green Bay Packers, their archrival, would feel immense negative repercussions as divisional matchups with the Bears drive their revenues and fan involvement.

Therefore, the vote of NFL teams about relocation helps to mitigate

consequences for rivals.

Negative externalities also drive justifications for cooperation outside team relocation.

The labor market for NFL players (and players in other leagues as well) is controlled through mechanisms like a player draft for those coming into the League from college, as well as, a salary cap for teams.

Without these, the richest owners would buy up all the best players

skewing the competitive balance of the League. In doing so, NFL football would become boring and lose its value.13 Referring back to the Sports Broadcasting Act of 1961, the act of revenue sharing of television contracts also helps drive competitive balance. Before the passage of the Act, each team negotiated their own television contract. This led to the most popular teams, such as those in New York, garnering richer contracts and having more money to spend, while small market teams were often left with no television contract at all.14 Following the Act, it was legal for the League to collectively bargain leading to not only more money for everyone15 but a level playing field as 75 percent of the television revenue is split equally among the teams.16 With a general understanding of the history and justifications for the antitrust exemptions leagues enjoy, it is now best to more closely examine this issue at a case-level. Though there are numerous examples, the most high profile of the last 20 years involve Chicago Bulls suing its league, the NBA, and a recent case involving and NFL and not one of its teams, but rather a hatmaker, American Needle. The two cases are linked in that they both look to capitalize on the same precedent, Copperweld Tube Corp. v. Independence Tube Corp..17 While the NBA uses this precedent as a way to avoid litigation from the Bulls, the NFL, conversely takes its case to the Supreme Court, using Copperweld to try and gain a higher level of exemption than it had ever enjoyed.

13 Ibid 290 14 Horowitz, “Market Entrenchment” 417 15 NFL television contracts increased from $6.5 million in1962 to $27.7 milion in 1967. Horowitz, “Market Entrenchment,” 218 16 Bill Briggs, “How the NFL Became America’s Game,” MSNBC.com, September 16, 2007, http://www.msnbc.msn.com/id/29764460/ns/business-sports_biz/t/how-nfl-became-americas-game.

17 Copperweld Corp v. Independent Tube Corp. 467 U.S. 752 (1984)

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Williams College Law Journal

Case Summary – Chicago Professional Sports Limited Partnership v. National Basketball Association18 (NBA II) The Chicago Bulls of 1990s were a basketball dynasty. Behind players like Dennis Rodman, Scottie Pippen, and Michael Jordan, the Bulls won an incredible six NBA titles in ten years,19 including an NBA record 72-win season in 1995-96.20 While the team was experiencing such great success competing against the other teams in the league, the Bulls’ ownership, the Chicago Professional Sports Limited Partnership competed against the league in court over the right to show Bulls’ games on WGN, a superstation.21 Prior to the 1990-91 season, an NBA team was permitted by the league to show 25 games on superstations. The NBA then lowered this number to 20 games for the ’90-91 season, causing the Bulls and WGN to sue to stop the rule change from taking effect. The District Court for Northern Illinois, in a decision known as NBA I22, agreed with the Bulls that the NBA’s new rule restricted the output of televised Bulls’ games to the market and was in violation of Section One of the Sherman Antitrust Act. Next, the NBA appealed the decision to the Seventh Circuit Court of Appeals, which affirmed the lower decision23 but provided for suggestions as to ways the NBA could seek the outcome it wanted without violating law. The NBA attempted to comply with these suggestions (which will be detailed in the next section) and then sought to impose a superstation fee on Bulls games on WGN. The Bulls sued again saying any restriction to their games being broadcast on WGN was a violation of the Sherman Act.

18 Chicago Professional Sports Limited Partnership and WGN Continental Broadcasting v. National Basketball Association, 874 F. Supp 870 (N.D. Ill. 1995).

19 It is worth noting that this decade included almost two full seasons without star Michael Jordan as he pursued a minor league baseball career 20 “Year-by-year History of the Chicago Bulls,” Chicago Bulls, last modified 2012 http://www.nba.com/bulls/history/Chicago_Bulls_History24393-42.html 21 “The NBA defines a superstation as ‘any commercial over-the-air television station whose broadcast signal is received outside the local Designated Market Area…by more than five perscent of the total number of cable subscribers in the United States.’ A local television stations becomes a supsertsation by provided its signal to cable systems to operators, who then rebroadcast the locacl teleivsin station’s signal to other television markets” Alter S. Fogel, “The ‘Superstation,’ The NBA, and Antitrust: An Analysis of Chicago Professional Sports Limited Partnership v. National Basketball Association,” Rutgers Law Review 47 (Spring 1995): 1200, http://www.lexisnexis.com/lnacui2api/api/version1/getDocCui?oc=00240&hl=t&hns=t&hnsd=f&perma=true&lni=3S3V-15P0-00CWF0PS&hv=t&csi=140725&hgn=t&secondRedirectIndicator=true.

22 Chicago Professional Sports Limited Partnership and WGN Continental Broadcasting v. National Basketball Association, 754 F. Supp 1336 (N.D. Ill. 1991) at 1339.

23 Chicago Professional Sports Limited Partnership and WGN Continental Broadcasting v. National Basketball Association, 961 F.2d 667 (7th Cir. 1992).

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Competing With and Against Each Other

Arguments and Decisions UNITED STATES DISTRICT COURT FOR NORTHERN ILLINOIS The Bulls’ argument in this case was centered on three restraints on their broadcast on WGN they saw as unlawful. First was a total ban on superstation broadcasts of Bulls games, the second was the blackout restriction keeping any team from showing a game on a superstation on the same night an NBA game was broadcast on TNT or TBS, and the third was superstation fee proposed by the NBA. It was the feeling of the Bulls that each of these restraints on the broadcast of their games was a blatant restraint of trade and a violation of Sherman.24 The NBA countered by attempting to prove that it had employed the suggestions of the Appeals Court in the Bulls I case. Most notably, the NBA attempted to prove it was single-entity because, although there are 29 separate independently owned teams, they are subsidiaries in the production of one product, NBA basketball. The NBA looked to draw on the precedent set in the Copperweld25 case regarding the inability of collusion between a parent company and a subsidiary.26 To facilitate this, the NBA had all copyrights of its teams transferred from the ownership of the individual teams only to the possession of the Association.27 Also, the NBA transferred all broadcast rights for league games to NBC with the stipulation that the teams could still sell their games to local television after approval of the NBA and NBC. After taking these steps to address the specific recommendations of the Seventh Circuit Court, the NBA looked to mount a defense against the Bulls’ claims. It did so arguing that its restrictions on superstation broadcast were precompetitive because they were necessary for the production of competitive basketball.

The restrictions helped the NBA negotiate national

broadcast deals, which in turn fostered expansion by promoting new teams to join the league.

The NBA further moved that its superstation fee was justified due to the free-rider inefficiency it saw. It was the League’s contention that the Bulls and WGN were free-riding on advertising by NBC and TNT for NBA basketball outside of the Bulls’ local broadcast area. This problem could be solved with a fee paid by WGN.28

24 Chicago Professional Sports 874 F.Supp at 847 25 Copperweld Corp v. Independent Tube Corp. 467 U.S. 752 (1984) 26 Chicago Professional Sports 874 F.Supp at 848 27 Ibid 850 28 Chicago Professional 874 F.Supp at 866

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Williams College Law Journal The District Court rejected the majority of the NBA’s contentions. Finding as it did in NBA I, the Court ruled that a restriction on the amount of television superstation games to reach the consumer was anticompetitive and violation of the Sherman Act. 29 In addition, it saw the transfer of copyrights from the teams to the league as an example of monopoly power to limit the distribution of a product.30 The Court also ruled that the NBA’s new deal with NBC out of scope of the Sports Broadcasting Act of 1961 because the deal limited the number of games shown to the national audience while the Act only permits restrictions of that kind to audiences within the home territory of the teams competing.31 Most notably, the Court rejected the NBA’s argument that the league was a single entity because the 29 teams in the league teams compete players, coaches and fans. The NBA has no control over the actions of the teams and is therefore different than the single-entity as found in Copperweld. In response to the NBA’s assertion that the teams are the creation of the league therefore rendering it a single entity, the Court responded by saying the league was more of creation of the teams as it can be dissolved by a three-fourths majority vote of the teams.32 However, the Court accepted the NBA’s free-rider justification, stating a superstation fee may be acceptable.33 After fruitless negotiations between the team and WGN, and the NBA, the Court rejected both sides’ propositions and set the fee to the NBA should be one half of the extra revenue from national broadcasts on WGN.34 SEVENTH CIRCUIT COURT OF APPEALS In 1996, the Seventh Circuit of Appeals heard the case and vacated two parts of the lower courts decision sending back the case back to the district level.35 First, the Court of Appeals rejected the superstation fee set by the District Court, ruling that the proposed fee by the NBA would not restrict output as the District Court had felt36 Next, the Court of Appeals vacated the District Court’s view that the NBA was not a single entity.37 It did so stating that the League was difficult to characterize as either a joint venture or a single entity. The Court also noted the difficulty of classification of sports leagues as either joint ventures or single entities in past cases, 29 Ibid 862 30Ibid 851-852 31 Ibid 855 32 Ibid 848-849 33 Ibid 869 34 Weber, “Sports Law,” 255-256 35 Chicago Professional Sports Limited Partnership and WGN Continental Broadcasting v. National Basketball Association, 95 F.2d 593 (7th Cir. 1996) 601.

36 Ibid 596 37Ibid 598

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Competing With and Against Each Other saying that Copperweld did not characterize one sole way to view single entities.38 In the end, it concluded that sports leagues should be taken one league at a time and moreover one facet at a time regarding a single entity discussion. Finally, the court stated that the NBA’s actions regarding broadcast rights were closer to a single firm than many firms. 39 Though the case was sent back to the district level, the two parties ended by settling outside of court.40 Implication of the Decision Though no decision was made by the Court of Appeals as to whether the NBA was a joint venture or a single entity, the decision still had unintended effects as well as implications for future cases.

First, the Court of Appeals had some unforeseen consequences to its decision regarding the superstation fee calculation. The Court of Appeals stated that the NBA’s plan for devising a fee, which the District Court had rejected, was not unreasonable or restrictive of output. This appears to be a victory for the NBA. The parties’ settlement, however, had the Bulls and WGN paying less than half of the NBA’s superstation fee for the broadcasts of the two seasons in which the litigation was taking place. For future broadcasts, no fee would be paid, but rather advertising revenue for national cablecasts would be split between the NBA, the Bulls, and WGN. As the Bulls’ Lead Counsel Joel Chefitz put it, “Ironically, the Bulls are better off under this deal than we were in court after all our trial victories over the NBA” 41 The Court of Appeals’ view on sports leagues as single entities would also have a great effect sports antitrust issues in the courts going forward. The ruling, which comments only on the difficulty of determining whether a league is a single entity or not rather than attempting to make such a distinction, sets no line as to when sports leagues’ actions are considered in concert and when they are not.

This is a problem that has persisted over nearly a century of

Congressional inaction on the issue, as seen in the Supreme Court’s ruling in Toolson. Further, because the Court ruled saying that each league should be looked at on a “league by league” basis regarding the single entity issue, the Court of Appeals allowed for each league to attempt to 38 Ibid 598-599 39 Ibid 600 40 Lacie L. Kaiser “The flight of Singe-Entity Structured Sport Leauges,” Depaul University Journal of Sports Law and Contemporary Problems 2 (Spring 2004): 25 http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/api/version1/getDocCui?oc=00240&hl=t&hns=t&hnsd=f&perma=true&lni=4DPYSMG0-01TH-N05H&hv=t&csi=274833&hgn=t&secondRedirectIndicator=true 41 David Eubank, “NBA Bulls settle in WGN Case; Ad Revenue Part of Deal,” Arizona Daily Star December 13,1996 http://www.sportsbusinessdaily.com/Daily/Issues/1996/12/13/Leagues-Governing-Bodies/NBA-BULLS-SETTLE-IN-WGN-CASE-ADREVENUE-PART-OF-DEAL.aspx?hl=Chicago%20Bulls&sc=0

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Williams College Law Journal portray itself a single entity in each facet of its business. A prime example of this is found in the National Football League’s use of the single entity defense while defending its merchandising contracts.42 Case Summary of American Needle v. National Football League43 Influential NFL Commissioner Pete Rozelle founded National Football League Properties in 1963. NFL Properties is owned by the 32 NFL teams and groups all team logos and trademarks for the League’s very successful marketing and merchandising operations.44 Typically, the NFL would use this corporation to grant licenses to multiple apparel companies to manufacture products for all 32 teams or specific teams. However, in 2001, the League moved to grant Reebok an exclusive contract for the manufacturing of apparel such as on-field jerseys, and notably hats.45 American Needle, an Illinois-based hat maker that had previously manufactured hats for NFL teams saw this as a violation of Section One of the Sherman Antitrust Act by the 32 NFL teams and filed a lawsuit against the League and the teams.

Arguments and Decisions American Needle’s chief assertion against the NFL was that each team was the owner of its trademarks.46 The Detroit Lions, for example, hold no claim to the New Orleans Saints’ fleurde-lis logo just as the Saints hold no claim to the leaping lion logo featured on the Lions’ helmets. As a result, each team could then compete against one another for licenses of its intellectual property. Because NFL Properties grouped the property rights, this competition was eliminated and 32 sources of economic power were replaced in the market by a single one.47 The NFL’s defense in the American Needle case begins by citing this process of value creation based on cooperation makes the League a single entity. It is the League’s contention that without an overarching league to coordinate competition between them, the teams would have little to offer as a product. Therefore, the teams are subsidiaries in the value creation process.

More specific to American Needle’s assertions, the League continued saying the League and 42 James A. Keyte, “American Needle Reinvigorates the Single-Entity Debate,” Antitrust, Summer 2009 48 43 American Needle v. National Football League 130 S.Ct 2201 (2010) 44 Michael MacCambridge, “A Czar is Born,” Sports Illustrated October 4, 2004, http://sportsillustrated.cnn.com/vault/article/magaize/MAG1116088/5/index.htm 45 Matt Townsend “Nike Is Awarded NFL Apparel License for 2012, Ending Reebok’s 12-Year Run.” Bloomberg.com, October 12, 2010 http://www.bloomberg.com/news/2010-10-12/nike-is-awarded-nfl-apparel-license-for-2012-ending-reebok-s-12-year-run.html 46 Keyte, “American Needle Reinvigorates” 49 47 Keyte, “American Needle Reinvigorates” 49

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Competing With and Against Each Other NFL Properties were the single economic power in this situation of licensing, not the individual teams. It was the League’s feeling that each team, after creating the single entity of NFL Properties to handle licensing of the whole League, was a subsidiary in the value creation process of the League and NFLP and therefore unable to collude together.48 This argument attempts to draw on the precedent of Copperweld in the same manner of Bulls II. At the district court level, American Needle’s case was dismissed, giving the NFL singleentity status when granting licenses for its intellectual property rights. It was the decision of the Court that the teams are legally able to could designate a single company, NFL Properties, to most effectively use their intellectual property rights.49 The Seventh Circuit Court of Appeals reaffirmed this decision. Against the recommendation of Solicitor General Elena Kagan, the Supreme Court then heard American Needle’s case.50 The NFL was also in favor of the High Court hearing the case, as a favorable decision would give it the indisputable status as a single entity for its intellectual property rights.51 However, the Supreme Court ruled unanimously in favor of American Needle, denying the NFL single entity status and meaning its cooperative actions were subject to Section One of the Sherman Act on a rule of reason basis.52 The Supreme Court rejected the idea that the NFL represented the sole source of economic power because the League was not the single, central decision-maker like in the Copperweld case.53 Rather, the Court noted the fact that each of the 32 teams is an independently owned and operated business that competes with the other teams in labor and entertainment markets.54 Moreover, the Court also rejected the argument that each team pooling its interest into the separate company of NFL Properties was worthy of single entity status because doing so would allow any group of firms to take common interests, pool them, and collude.55 Last, the Court rejected the NFL’s initial argument that because cooperation between teams was necessary for value creation, the League was therefore a single entity. In Justice John Paul Stevens’ opinion, he compared NFL teams and creation of NFL football to the of nut and bolt industry.

48 Nathaniel Grow “American Needle and the Future of the Single Entity Defense Under Section One of the Sherman Act,” American Business Law Journal 48 (Fall, 2011):475-476 http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/api/version1/getDocCui?oc=00240&hl=t&hns=t&hnsd=f&perma=true&lni=53RH2P10-00CW-H0S9&hv=t&csi=166252&hgn=t&secondRedirectIndicator=true 49 Grow “American Needle and the Future” 470 50 Gregory J. Werden, “Initial Thoughts on the American Needle Decision,” The Antitrust Source 9 no.6 (August 2010), 3 51 Lester Munson :Antitrust Case Reaches Supreme Court,” ESPN.com, January 12, 2010, http://sports.espn.go.com/nfl/news/story?page=munson/100112 52 American Needle, 130 S. Ct at 2206-2207 53 Ibid 2212-2213 54 Ibid 2212 55 Grow “American Needle and the Future” 475-476

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Williams College Law Journal Though both a nut and bolt are almost useless by themselves, coordination between these separate manufacturers would still be subject to antitrust law.56 Implications of the Decision It may appear that the Court’s decision only pertains to one aspect of concerted action by the League. That is, this decision is a simple rule of reason review of the NFL’s practice of pooling intellectual property rights and granting exclusive licenses; a decision of narrow scope.57 However, this case may set a new legal precedent for a quick look58 process for defendants in sports antitrust cases. Moreover, at the time of the case, the decision had important implications for the League’s licensing contracts and a potential out of court settlement.

First, as James Keyte points out in his analysis of the American Needle decision, the Court specifically remarks that because sports leagues are already granted a partial antitrust exemption to coordinate action to effectively produce and promote their products, an in-depth analysis of potential Sherman violations is not always necessary. This appears to leave room for the creation of quick look for defendants in sports antitrust cases in improve efficiency.59 The creation of quick look would obviously change the legal landscape for sports leagues and make the American Needle decision one of great importance.

Next, the American Needle decision has an economic impact on the League especially after recent licensing decisions that were made. The Reebok contract that started the entire case expired at the end of the 2011 season. The NFL has since negotiated other deals to license its League apparel for 2012 through 2016. Multiple companies were granted contracts including Nike as the exclusive manufacturer of jerseys and fan apparel, and New Era as the exclusive maker of official NFL hats. These exclusive deals seem to be in contrast of the Supreme Court’s decision. Because of the decision of the Supreme Court and the contracts recently signed by the NFL, it is likely the League will look to settle with American Needle ending the case sooner and keeping their contracts with Nike and others from being put in jeopardy. 60

56 American Needle, 130 S. Ct at 2208 57 Werden “Initial Thoughts” 1-2 58 A “quick look” is an “antitrust device to challenge restraints that do not fall within established per se categories but have questionable precompetitive justifications…Plaintiffs allege what appears to be an inherently suspect restraint; defendants then have to come forward with plausible precompetitive justifications; if accepted, the case is kicked into the full rule of reason, but if rejected is condemned much like a per se violation” Keyte, “American Needle Reinvigorates” 51 59 Keyte, “American Needle Reinvigorates” 48 60 Associated Press,“New Deal Establishes Nike as League’s Official Uniform Provider,” NFL.com, October 10, 2010 http://www.nfl.com/news/story/09000d5d81b4559b/article/new-dea-establishes-nike-as-leagues-official-uniform-provider

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Competing With and Against Each Other Conclusions It is indisputable that an exemption to the Sherman Antitrust Act is needed for a sports league to be most economically viable. Without coordination, a strong brand and therefore the best product cannot be put forth. However, where to properly draw the line on that exemption is something certainly of dispute. Though the courts and Congress increased this coordination power greatly through the 20th Century with decisions like Federal Baseball Club and Toolson, and the Sports Broadcasting Act, as illustrated in the closer look taken at the NBA II and American Needle cases, a greater consolidation of the power within the leagues is not something the courts are in favor of. Currently, a federal judge is considering the idea that in labor negotiations last year, NFL owners colluded to set a salary cap lower than the one agreed upon in the new collective bargaining agreement. If a decision goes against the owners, new, tougher questions about the validity the league’s coordination would arise. 61

61 Associated Press, “Judge Considers Collusion Lawsuit,” ESPN.com September 6, 2012 http://espn.go.com/nfl/story/_/id/8346322/federaljudge-david-doty-considers-nflpa-collusion-lawsuit-league

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Human Rights vs. Security: The Dilemma of Torture in the Modern Age _________________________________ Kirk Schneider Siena College __________________________________ While torture is not a new historical phenomenon, recent developments in world affairs have brought it forcefully back into the public consciousness. Specifically, the September 11th attacks and the general threat of terrorism have led governments, such as that of the United States, to increasingly turn to torture as a tool to combat the growing threat of non-state actors.

With improvements in communications technology and the proliferation of weapons of mass destruction, the power of individuals to inflict harm on societies has increased dramatically and subsequently the importance of gathering information on such elusive enemies has increased.

Torture is one such way of extracting information from individuals. Therefore, due to the new imperative to collect intelligence, many liberal democracies face a moral and legal predicament in which they must balance principles of human rights against the need for security. In response to this challenge that the contemporary world faces, the United States in particular has adopted limited forms of torture. Though this may seem shocking considering popular support for human rights and relevant prohibitions of international law, in a broader understanding of the phenomenon of torture this is not surprising. In the scope of history, such a dilemma naturally emerged out of modern security realities. Furthermore, although the United States has tried to legally seek security through harsher interrogation methods by altering the definition of torture so that it will not violate international and domestic law, it can be seen that any form of torture conflicts with the philosophy of liberalism that underpins the American legal system.

Before one can examine the debate between those who support a reevaluation of a complete ban on torture and those who seek to assert that all torture is impermissible, one must define the context in which such a debate occurs. Firstly, it must be understood that the use of torture by governments to achieve security is not a new phenomenon. Physical methods of interrogation were and remain an inexpensive, relatively effortless, and easily available tool.1 Although contemporary individuals might imagine that past peoples used torture out of a lack of 1 Omer Z. Bekerman, “Torture: The Absolute Prohibition of a Relative Term: Does Everyone Know What is in Room 101?,� The American Journal of Comparative Law, Vol. 53, No. 4 (Fall, 2005): 745.

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Human Rights vs. Security civility, it was approached in a serious manner by many peoples. In ancient times, the employment of physical methods of torture was common as a means of obtaining evidence or confessions, and it was often a legitimate part of legal systems and processes.2 For example, in the past many societies used torture to test the veracity of “unreliable witnesses” such as slaves, to extract confessions of guilt from suspected criminals, and to force heretics to admit to or recant their religious beliefs.3 In Europe, in the eighteenth and nineteenth centuries, this began to change as many societies took strong steps towards removing most forms of torture from the law books.

In 1874 Victor Hugo declared that “torture has ceased to exist.”4 While this might seem a strange statement, in light of history he can be forgiven for thinking that humanity was close to eliminating extreme forms of human rights abuses. The beginning of the twentieth century in particular saw the blossoming of attempts to limit the atrocities one might inflict on his fellow man, including torture. Part of the Geneva Convention of 1929, which regarded the treatment of prisoners of war, stated that “no pressure shall be exercised on prisoners to obtain information regarding the situation in their armed forces or their country."5 After World War II, such rules were further revised and made more comprehensive.

International law on the subject of torture has only expanded since the traumatic wars of the first half of the twentieth century. After World War II, the Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights of the same year, declared principles opposed to torture.6 Another important landmark in the legal treatment of torture was the 1984 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which defined torture more comprehensively than many past efforts to do so.7 Although most such international agreements lacked means to enforce their prohibitions, such treaties represent a conscious appreciation of the need to address human rights abuses in the world.

2 Bekerman, “Absolute Prohibition of a Relative Term,” 745.

3 Mathew Lippman, “The Protection of Universal Human Rights: The Problem of Torture,” Universal Human Rights, Vol. 1, No. 4 (Oct.-Dec., 1979): 28.

4 Quoted in Malcolm D. Evans and Rod Morgan, Preventing Torture: A Study of the European Convention For The Prevention of Torture And Inhuman or Degrading Treatment or Punishment (Oxford, 1998): 12.

5 Bekerman, “Absolute Prohibition of a Relative Term,” 747.

6 Bekerman, “Absolute Prohibition of a Relative Term,” 749.

7 Lippman, “Problem of Torture,” 38-9.

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Williams College Law Journal Despite an ever-growing body of international law since World War II dealing with human rights, including prohibitions on torture, the twentieth century did witness the disappearance of torture. With the rise of totalitarian regimes, torture in the twentieth century was characterized by its use as a means to systematically crush political dissidents. However, although many associate torture most strongly with fascist and communist dictatorships, the modern dilemma regarding torture did not originate in totalitarian pursuit of societal control. Due to international law, improved flows of information, public opinion, and the desire of the democratic West to differentiate itself from totalitarian regimes, retreat from prohibitions of torture were limited throughout the century in liberal-democracies.8 While an understanding of the general history of torture suggest there should be little debate over torture in liberal democracies, an examination of the purpose of torture reveals the roots of contemporary disagreements. According to Ackroyd, Margolis, and Rosenhead in the book The Technology of Political Control, contemporary governments use torture mainly to extract information, prepare a detainee for a show trial, to destroy the political effectiveness of individuals through psychological or physical incapacitation, and to instill a general climate of fear among the general population. 9 Of these general functions of torture, the latter three unambiguously represent a totalitarian view of government that is incompatible with liberal democracy.

Ultimately it is the extraction of information, such as military intelligence, through torture that presents a legitimate quandary to liberal societies. Technology and knowledge are rapidly becoming accessible to those who seek them, and subsequently the threat of terrorism has changed security needs worldwide, making the famous “ticking time-bomb” scenario and other attacks more feasible and frightening.10 Conflicts in the twenty-first century often take place among civilian populations and against poorly defined enemies. As Jeremy Waldron explains in “Torture and Positive Law: Jurisprudence for the White House,” With the growth of the ethnic-loyalty state and the security state in the twentieth century, the emergence of anti-colonial insurgencies and other intractable forms of internal armed conflict,

8 Bekerman, “Absolute Prohibition of a Relative Term,” 745-6.

9 Carol Ackroyd, Karen Margolis, Jonathan Rosenhead, and Tie Shallice, The Technology of Political Control (Middlesex: Penguin, 1977), p.

230.

10 Bekerman, “Absolute Prohibition of a Relative Term,” 746.

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Human Rights vs. Security and the rise of terrorism, torture has returned, and flourished on a colossal scale. … It is not just a rogue-state, third-world, banana-republic phenomenon.11 Governments around the world have been forced to come to terms with the fact that the power to harm, once largely monopolized by the state, is increasingly in the hands of individuals.12 When the government seeks to stop such individuals, information is often more important than brute force, and it is in acquiring this critical information that many liberal societies become torn between principles of human rights and the need for security.

The increased power of individuals to inflict harm on societies, and subsequently the increased importance of intelligence, provide the circumstances under which modern liberal societies, otherwise committed to protecting individual rights, are drawn into debates about torture. One response to the question of how to respond to the threat of terrorism and other nonstate actors is to use torture as a means of acquiring valuable intelligence. In the modern world, and especially among liberal democracies, few countries would ever explicitly legalize torture; it is much more likely that the definition of torture will be contended and redrafted.13 Indeed, as Waldron points out, perhaps what is most remarkable is not that torture is used, but that it is being defended, and by well-known jurists and law professors.14 Rather than crudely embracing torture in general, contemporary governments and individuals have disputed the actual definition of torture in order to suit their perceived security needs.

Certainly, “it is a truism that torture is wrong … while we can agree on a prohibition on torture, we might not really be in agreement on what it is we agree about.”15 While most people agree on the importance of human rights, there is less consensus regarding what practices constitute torture. Following the September 11th attacks, parts of the United States government, in an attempt to prosecute the War on Terror more effectively, pushed for a more lenient definition of torture. This is perhaps most famously exemplified by secret memoranda authored during the early years of the Bush administration, which recorded the debate over methods of interrogation among attorneys in the Department of Justice. The Bush advisors and officials involved in these dialogues were seeking a legally based definition of torture that would establish a realm of coercion that did not violate international prohibitions against torture.16 11 Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review, Vol. 105, No. 6 (Oct., 2005): 1684.

12 Bekerman, “Absolute Prohibition of a Relative Term,” 746.

13 Bekerman, “Absolute Prohibition of a Relative Term,” 746.

14 Waldron, “Torture and Positive Law,” 1684.

15 Bekerman, “Absolute Prohibition of a Relative Term,” 744.

16 Steven Lukes, “Liberal Democratic Torture,” Cambridge University Press, Vol. 36 (2005): 6.

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Williams College Law Journal The debate regarding the definition of torture followed an important discussion of the status of enemies such as the Taliban and Al-Qaeda. The memorandums advised administration officials that, among other things, [the] humanitarian Geneva Conventions were inapplicable to Taliban detainees or persons suspected of links with Al Qaeda or terrorism … [also,] that the 1994 U.S. statute criminalizing the commission of torture did not apply to interrogations conducted at Guantanamo Bay, Cuba, because the U.S. naval station there was within the definition of the special maritime and territorial jurisdiction of the U.S. and thus outside the scope of the statute.17 The memorandums also determined that such individuals are not prisoners of war but illegal combatants, not entitled to any of the protections of the Geneva Conventions.18 This reasoning is incredibly important. The disputed legal status of militants captured by the United States provides government officials with a justification to use harsher interrogation techniques.

Subsequently, this opened up the debate as to exactly how harsh such interrogations can and should be.

The most famous example of these memorandums is the Bybee Memo. Between 2001 and 2003, Jay Bybee was the head of the Office of Legal Counsel in the Department of Justice.

Federal Law in the United States does attempt to address torture per international treaty obligations and even provides federal criminal jurisdiction of acts of torture carried out extraterritorially by Americans.19 However, in a memo sent to the White House, Bybee proposed narrowing the definition of torture so that it did not cover all circumstances of deliberate infliction of pain in an interrogation, but rather only pain that could result in death or organ failure.20 The Bybee memorandum represents some of the most lenient interpretations of the Geneva Conventions and other prohibitions against torture and was highly influential. Although American and international law prohibits torture, U.S. officials have tried to adapt the wording of such laws to justify more coercive interrogation. Such interpretations are often based on the fact that, at the heart of definitions of torture in most American law, the terms “specifically intended” and “severe physical or mental pain or suffering” are used to quantify the term.21 Such wording 17 Richard B. Bilder and Detlev F. Vagts, “Speaking Law to Power: Lawyers and Torture,” The American Journal of International Law, Vol. 98, No. 4 (Oct., 2004), 689-90.

18 Lukes, “Torture,” 6.

19 Manfred Nowak, “What Practices Constitute Torture?: US and UN Standards,” Human Rights Quarterly, Vol. 28, No. 4, (Nov., 2006): 811.

20 Waldron, “Torture and Positive Law,” 1685.

21 Bekerman, “Absolute Prohibition of a Relative Term,” 768.

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Human Rights vs. Security provides the basis for Bybee’s conclusion that a definition of torture need not include all forms of pain and suffering intentionally inflicted on a detainee. To Bybee, only the most extreme acts of violence and degradation ought to be considered torture. He argued that “certain acts may be cruel, inhuman, or degrading, but still not produce pain or suffering of the requisite intensity to fall within the proscription against torture.”22 The legal reasoning of Bybee and other government officials who contributed to the controversial secret memorandums is important because it represents conceptual efforts commonly made around the world by those wishing to provide a legal basis for harsher interrogation techniques. The Bybee memorandum in particular is significant in that its arguments were directly used as a basis for adopting harsher interrogation techniques. Secretary of Defense Donald Rumsfeld, “used the Bybee Memorandum as the legal basis and justification for the infamous interrogation techniques applied to suspected terrorists at Guantanamo detention facilities.”23 The stance such individuals take towards the security dilemma of the 21st century is exemplified by Bybee’s conclusion that, even if an interrogation method might violate American laws, necessity or self-defense could provide justifications that would eliminate any criminal liability.24 While the need for security is always pressing, in attempting to undermine the reach of human rights laws, both domestic and international, The United States government violates core American principles. These are principles individuals such as Bybee or Rumsfeld would claim they are defending through torture of terrorists and other enemies. Opponents of torture argue that such technocratic interpretations of torture remove prohibitions of torture from their context and results in a pseudo-legal reasoning.25 Despite a claimed basis in the language of existing laws, attempts to limit a definition of torture to the most extreme forms of abuse miss the intent of enacting such laws, which was to repudiate torture, not to provide guidelines within which torturers could operate. Government officials such as Jay Bybee consider the topic of torture according to how far they can go before violating torture laws, when the real issue is what implications harsh methods of interrogation have for core American values and how the nation wants to be perceived by the rest of the world.26 22 Waldron, “Torture and Positive Law,” 1705.

23 Nowak, “What Constitutes Torture?,” 813.

24 Nowak, “What Constitutes Torture?,” 812.

25 Bekerman, “Absolute Prohibition of a Relative Term,” 773.

26 Bekerman, “Absolute Prohibition of a Relative Term,” 774.

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Williams College Law Journal While there are countless authors who argue ways in which torture violates liberal democratic principles, Jeremy Waldron has one that is particularly interesting. He argues that American law is pervaded by liberal principles of policy that make the rejection of torture archetypal of such legal values. This means that a legal policy embracing limited forms of torture will, by its nature, violate the general body of American law. To illustrate this point, Waldron emphasizes several aspects of American law that seem to epitomize a pervasive policy of nonbrutality.27 His first example is the 8th Amendment, which prohibits cruel and unusual punishment.

The Supreme Court has frequently opposed all forms of unnecessary cruelty, even if such acts would not be severe enough to be considered torture. Waldron points out that many rulings regarding the limits of how prisoners can be treated have even used torture as a reference point.

He also supports the argument that the framers likely drafted the 8th Amendment in part due to their abhorrence of torture, which they saw as being incompatible with the liberties of free people.28 Another example Waldron feels is important is the precedence of the concept of due process in American law. References to torture and limits on the violation of individuals is common throughout American jurisprudence that deals with issues such as self-incrimination and due process. Waldron cites the language of several Supreme Court cases, in which the various forms of coercion in legal proceedings are found by the court to offend human dignity and the rule of law. He points out that, “as with Eighth Amendment jurisprudence, the point is to remind us not that torture is prohibited, but to use our clear grip on that well known prohibition to illuminate and motivate other prohibitions that are perhaps less extreme but more pervasive and important in the ordinary life of the law.”29 Examples such as these demonstrate that the Constitution and legal culture of the United States generally protects bodily integrity against invasion, while physical torture always involves such an invasion.30 The inviolability of the individual inherent in the philosophy of liberal democracy means that torture cannot reasonably coexist with such a legal system. Therefore, the prohibition of torture represents a legal archetype of American law. The importance of such a

27 Waldron, “Torture and Positive Law,” 1730.

28 Waldron, “Torture and Positive Law,” 1730.

29 Waldron, “Torture and Positive Law,” 1731.

30 Waldron, “Torture and Positive Law,” 1733.

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Human Rights vs. Security conclusion lies in the fact that, in some sense, other law regarding liberties in the United States depends on the integrity of a prohibition of torture.31 As he argues, Our beliefs-that flogging in prisons is wrong, that coerced confessions are wrong … that police brutality is wrong-may each be uncertain and a little shaky, but the confidence we have in them depends partly on analogies we have constructed between them and torture or on a sense that what is wrong with torture gives us some insight into what is wrong with these other evils. If we undermine the sense that torture is absolutely out of the question, then we lose a crucial point of reference for sustaining these other less confident beliefs.32 The conviction that torture is wrong is important in an argument that lesser evils are also unacceptable.

A complimentary argument is made by David Luban in “Liberalism, Torture, and the Ticking Bomb.” Like Jeremy Waldron, Luban believes that torture violates the liberal democratic values that underpin American law. His example of this phenomenon is explored by examining the relationship created between the victim and the torturer. As he points out, the “self-conscious aim of torture is to turn its victim into someone who is isolated, overwhelmed, terrorized, and humiliated. Torture aims to strip away from its victim all the qualities of human dignity that liberalism prizes.”33 Luban’s argument is that torture embodies aspects of tyranny that are diametrically opposed to the sanctity of the individual inherent to liberal ideology.

The core of Luban’s argument is that liberal values are inherently opposed to torture because of the close relationship between cruelty and tyranny. Torture can be seen to be, the living manifestation of cruelty and the peculiar horror of torture within liberalism arises from the fact that torture is tyranny in microcosm, at its highest level of intensity. The history of torture reinforces this horror because torture has always been bound up with military conquest, regal punishment, dictatorial terror, forced confessions, and the repression of dissident belief-a veritable catalogue of the evils of absolutist government that liberalism abhors.34 Similar to Waldron’s argument regarding archetypes of legal systems, Luban holds that an adoption of torture in a liberal state such as the United States will undermine the very principles of such a nation. Both arguments favor a view of a legal system that honors the sanctity of the individual, and in which torture cannot be a legitimate component.

31 Waldron, “Torture and Positive Law,” 1734.

32 Waldron, “Torture and Positive Law,” 1735.

33 David Luban, “Liberalism, Torture, and the Ticking Bomb,” Virginia Law Review, Vol. 91, No. 6 (Oct., 2005): 1430.

34 Luban, “Liberalism, Torture,” 1438.

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Williams College Law Journal The threat of terrorism and other non-state actors due to globalization and the increased availability of technology and weapons has weakened the traditional governmental monopoly on violent force. The importance of gathering intelligence in order to identify and stop individuals with intent to harm society has subsequently become a more important imperative of government. This has forced liberal societies to come to terms with the inherent conflict in simultaneously seeking security and the promotion of human rights. Some, such as the Bush administration, attempted to resolve this conflict by redefining torture so that harsher interrogations techniques could be carried out against suspected terrorists. Although this consequentialist pursuit of security is understandable, it is theoretically untenable, as the violation of individual autonomy and dignity inherent to torture conflicts with the core principles of liberal ideology that underpin the United States legal system.

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When Good Courts Go Bad: Why the Supreme Court Got It Wrong in Citizens United _________________________________ Joseph Nania Northeastern University __________________________________ I: Introduction In January 2010, the Supreme Court handed down one of its most infamous decisions since Roe v. Wade. With the opinion in Citizens United v. Federal Election Commission came a flurry of concern about the future of campaign finance reform in America. The case, which held any limit on independent expenditures by a corporation to be unconstitutional, carries great consequences on the role of money in politics and the future of free speech. Since this year has seen the nation’s first presidential election since the now-infamous decision, the debate over Citizens United is still quite relevant. Furthermore, the Supreme Court may very well re-consider its two-year-old decision in a future term, with a court in the 8th Circuit of Appeals upholding Citizens United as applied to a Minnesota law.1 In Part II, this paper examines a brief timeline of campaign finance reform in the United States, discussing important Supreme Court cases whose holdings contributed to the decision in Citizens United. In Parts III through VII is a discussion of various reasons as to why Citizens United was decided wrongly, including: that corporations do not deserve the same level of rights as natural people, that there now exists some incoherency for future legislation, that antidistortion was wrongfully disregarded by the Court, that the Court takes an improper view of free speech, and that the regulations struck down by Citizens United were nothing more than time, place, or manner restrictions. Part VIII addresses a few other arguments in favor of Citizens United not encompassed by the preceding parts. The paper concludes that the Supreme Court was wrong in its Citizens United opinion and that should it fail to overturn itself in a pending case, legislative action must be taken to ensure that the negative ramifications of the decision are contained and alleviated as much as possible.

1 Baynes, Terry. "Appeals Court Blocks Minnesota Law on Corporate Political Spending." Chicago Tribune, 9/5/12 2012.

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Williams College Law Journal II: A Timeline of Campaign Finance Reform A. 1976: Buckley v. Valeo One of the most important cases regarding campaign finance jurisprudence2, Buckley answered numerous questions regarding the 1971 Federal Election Campaign Act (FECA) and its bans on independent expenditures and direct contributions.3 The Court held that FECA’s limits on direct, individual, contributions were constitutional, as the possibility of quid pro quo corruption was very likely, and a great threat to the country’s democratic process.4 Though the Buckley Court upheld some FECA limits regarding direct contributions, it took an opposing view regarding independent expenditures. The Court ruled that the FECA “expenditure ceilings [imposed] direct and substantial restraints on the quantity of political speech” and were therefore a violation of the First Amendment.5 What is interesting about this part of the opinion, other than the fact that this is exceedingly similar to the language used by the Citizens United majority, is that here the Court explicitly equates spending with speech. The limits on independent expenditures did not just limit the amount of money one could spend, then, but also the amount of speech one could speak.

B. 1990: Austin v. Michigan Chamber of Commerce Buckley is indeed an influential decision on U.S. campaign finance, but it is by no means the end of the debate. If it were, after all, this paper would be moot. Fourteen years after Buckley, the Court again addressed campaign finance in Austin v. Michigan Chamber of Commerce. Whereas Buckley regarded expenditures in general, Austin addressed the rights corporations have regarding campaign finance. The Austin Court held that a Michigan statute banning corporate use of general treasury funds for independent expenditures, and justified this ban by reasoning that there was a compelling government interest in “preventing the corrosive and distorting effects” that corporate money can have. 6 This interest, then, was sufficiently compelling, and the Michigan law was narrow enough, so as not to be a violation of either the First or Fourteenth

2 Hasen, Richard L. "Citizens United and the Illusion of Coherence." Michigan Law Review 109 (2010): 581-624.

3 Citizens United V. Federal Election Commission, 558 U.S. 310 (2010).

4 Buckley V. Valeo, 424 U.S. 1 (1976). (“To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.”)

5 Id. 6 Citizens United v. Federal Election Commission, quoting Austin

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When Good Courts Go Bad Amendments. Austin, with its antidistortion reasoning, then trumps Buckley by espousing and codifying an egalitarian rationale, the same one that the Buckley Court had rejected.7 C. 2002: McCain-Feingold Bipartisan Campaign Reform Act Campaign finance reform has not just been an action of the courts, however. In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), which attempted to define succinct laws and regulations regarding campaign finance while abiding by controlling precedent of the time, including Buckley and Austin. BCRA set limitations on when a corporation could use its general treasury funds for independent expenditures, declaring that any electioneering communications—defined to be “any broadcast, cable, or satellite communication that refers to a clearly identified candidate”—made within 30 days of a primary election or 60 days of a general election were unlawful.8 BCRA also banned soft-money donations from corporations, unions, and individuals, eliminating the unregulated flow of money between candidate and donor.

BCRA, like most pieces of unpopular legislation, faced challenge in court. The Supreme Court, in McConnell v. Federal Election Commission, upheld parts of BCRA and also reaffirmed the holding of Austin.9 Thus, Austin and BCRA stood as controlling precedent and good law, until January 2010.

D. 2010: Citizens United v. Federal Election Commission In Citizens United, the Court was initially asked to determine whether a film, Hillary: The Movie, produced by the nonprofit Citizens United violated BCRA as an electioneering communication.10 In a surprising move of overreach—that is, addressing more than the “case or controversy” before it—the Court expanded this narrow question to a debate about the constitutionality of BCRA and the validity of Austin. In its holding, the Court overturned Austin as well as the relevant parts of McConnell—the parts reaffirming Austin—and held that corporations could use their general treasury funds for independent expenditures, and the limitations imposed by BCRA (i.e. 30 days before primary/60 days before general election) were unconstitutional prohibitions on free speech. In the wake of this decision, corporations are now 7 Hasen, Richard L. see footnote 1, supra. p.588 (“the Court in fact was espousing an equality rationale, which it had rejected with respect to individuals in Buckley.”)

8 Citizens United v. Federal Election Commission, quoting BCRA 9 Hasen, Richard L. see note 1, supra. p.589 (“Reaffirming Austin, the McConnell Court upheld the rules...”)

10 Citizens United v. Federal Election Commission

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Williams College Law Journal free to spend as much money as they want from their general funds (that is, without the use of a PAC) as close to elections as they want. While there is a case working its way through the court system, Western Tradition Partnership v. Attorney General of Montana, Citizens United still remains a controlling precedent, and thus remains a problem.

III: A Lesser Degree of Citizenship Implies Lesser Constitutional Protection Citizens United is based on a flawed premise that corporations deserve the same protections and rights as natural people (humans). While it is not contended that corporations deserve no First Amendment protection, it seems more appropriate that since corporations differ greatly from humans, and since corporations are held to a lesser degree of citizenship, they thus merit less protection. As Justice Stevens notes in his dissent, “unlike natural persons, corporations have…perpetual life,” may amass unlimited wealth, and do not comprise the “We the People by whom and for whom [the] Constitution was established.”11 Because corporations have perpetual life, it is off-putting to classify them as “people.” Natural people have limited lifespans; and though not all that is mortal is human, certainly all that is human is mortal, and will die eventually. If a corporation wishes to be a person, it seems fitting that it must meet all criteria of personhood, including the unfortunate consequence of mortality. Since the corporation, however, does not die—it may continue on for ages and amass unlimited wealth.

The ability of a corporation to amass unlimited wealth is troubling as it makes that corporation a “formidable political presence.”12 With unlimited wealth, a corporation may, in theory, spend unlimitedly on electioneering communications. Realistically, a corporation cannot spend truly unlimited amounts on electioneering, as a corporation has its share of expenses that go along with running a business, but a corporation’s general fund nonetheless gives it more disposable funds than most individuals possess. For this reason, the corporation can outspend most natural persons. Justice Stevens distinguishes corporations from natural people in an interesting way in claiming that corporations are not a part of the famous “We the People.” To reach these conclusions, he relies on the previously mentioned differences, as well as the fact that corporations have “no consciences, no feelings, no thoughts, [and] no desires” of their own.13 That is, while the individuals who comprise the corporation may have all of these things, the 11 Citizens United v. Federal Election Commission; (Stevens, J. Dissenting) p. 75-76 12 Id. 13 Id.

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When Good Courts Go Bad corporate entity itself does not. A corporation must abide by its duty to its shareholders—the duty to maximize profits. The corporation is an entity with one purpose: to make money. A conscience, however, requires more than a single driving purpose; it involves so much more, including morality, compassion, and empathy. But the drive, the obligation, to make money has none of these things, and cannot constitute a conscience. Therefore, the corporate entity is not part of “We the People.”

Put another way, we may consider humans as “normative citizens,” those whom society holds to the utmost degree of citizenship.14 Normative citizens, are, by virtue of their level of participation in society, deserving of full rights and protections. Corporations, as the most basic corporate entity, fall into a separate category: the “legal citizen.”15 The normative citizen owes certain duties—has certain obligations—to his country, and as a result of these obligations, he is rewarded with full protection of the Constitution.16 The normative citizen engages with his country through three basic obligations: voting, jury duty, and military service if conscripted.15 The legal citizen, however, exists only artificially as “contemplation of law.”17 A corporation itself is really an idea and not a tangible object. The corporate entity exists via law, and while the building in which the corporation operates, the people who comprise the corporation, and corporate resources are in fact tangible, the corporate entity itself remains, for all intents and purposes, an artificial thing. A corporation, as the corporation in it of itself, cannot vote in elections. The individuals who are part of the corporation can vote, yes, but in doing so they espouse not the views of the corporation but of themselves.18 Thus, the vote cast represents the desire of that individual, and not necessarily of the corporation. In doing so, the individual acts as the normative citizen, while the corporation, which does not vote itself, is again the legal citizen. Similarly, a corporation—or any “legal citizen”—cannot serve as a juror. Although the individuals, the normative citizens, who make up the corporation may serve jury duty, once 14 Sepinwall, Amy J. "Citizens United and the Ineluctable Question of Corporate Citizenship." University of Pennsylvania, Selected Works of Amy J. Sepinwall (2011). (“More specifically, I advance an account of normative citizenship…a formal citizen who is subject to a set of obligations that sustain the nation-state’s joint project.”)

15 Id. 16 This is not to say that a person who fails to meet these obligations, such as a person who does not vote, is less deserving of full protection and rights, but rather that a human can perform these duties while a corporation cannot. A normative citizen has the ability to engage with these obligations, while the legal citizen does not.

17 Clermont, Woody R. "Business Associations Reign Supreme: The Corporatist Underpinnings of Citizens United V. Federal Election Commission." Thomas M. Cooley Law Review 27 (2010): 477-508. p.491 (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”)

18 While one might say that the views of the individuals who make up the corporation are in fact the views of that corporation, this is illogical to assume. An individual might have certain opinions that translate to his or her work in a corporation, but working in the corporate entity, a person must frame his or her decisions in a way that makes sense for the corporation’s end goal. A for-profit, for example, is designed to make money, and its decisions would, or should, be framed for what’s best for that end goal.

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Williams College Law Journal again it is not the corporate entity itself engaging with the nation. As with the vote being cast, the decision as a juror made by the normative citizen reflects the view of the individual and not that of the corporation. While there indeed may be overlap between the view of the individual and of the corporation, it is important to note that only the individual may create the opinion; a corporation, being an artificial entity existing only on paper (its charter), is not capable in itself of forming opinions. Lastly, the normative citizen is expected, and for the most part able to, serve conscripted military service (assuming that the nation has invoked draft laws, etc.). As of yet, a corporation has never been drafted into the U.S. military, though numerous normative citizens have. These three basic ways by which normative citizens serve and engage with the nation are further examples—and indeed more persuasive examples—of how a corporation yet again differs from a natural person. With these numerous differences, it follows, then, that because the corporation does not engage with the nation on these three important, basic, levels, the corporation does not deserve the same extent of rights afforded to it as do normative citizens.

Of course, that is not to say that corporations deserve no rights. Rather, corporations, much like non-suspect classes in equal protection jurisprudence receive lesser levels of scrutiny, deserve less absolute protection. Restrictions on the First Amendment rights of corporations, therefore, should perhaps be subjected to intermediate scrutiny or rational basis, instead of strict scrutiny, which is then reserved for the protection of the rights of normative citizens.

IV: Citizens United Creates Incoherency and May Lead to an Unworkable Standard Citizens United also manifests itself as a poor decision by the Supreme Court in that it creates incoherency in the Court’s campaign finance jurisprudence. As discussed above in Part II, Citizens United is a departure from decisions such as Buckley, Austin, and McConnell, the last two of which were ultimately overturned by Citizens United. The legal doctrine stare decisis is an important one that calls for the respect of precedent and for the Court to overturn itself only when most dire. While stare decisis is by no means a binding policy on the Court, there is a certain legitimacy that comes from the Court remaining consistent with its previous decisions, so long as those previous decisions are not blatantly wrong.19 When the Court overturned Austin, then, it drew question to its legitimacy. A court that overturns itself frequently is a court that becomes perceived as ineffective and unimportant. It is indeed surprising that the Court would 19 That is, cases such as Plessy v. Ferguson were rightly overturned, as they were clearly discriminatory and wrongly decided.

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When Good Courts Go Bad weaken its perceived legitimacy by overturning a case that quite frankly did not merit overturning. However, the greater incoherency comes not from what Citizens United did, but what it failed to do. The opinion stated explicitly that the Court “need not address whether the government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”20 This is a troubling and careless statement for the Court to make. It seems logical to want to keep foreign influence (by means of a foreign-owned corporation operating partially within the United States) out of American elections, yet any such legislative attempt to ban or limit foreign influence would, under Citizens United, be seen in the eyes of the law as an identity-based restriction, and therefore impermissible.21 Therefore, this legislative solution to limit foreign influence, though necessary (as a foreign-based corporation might have more shareholders abroad than in the U.S., thus eliminating the shareholder backlash that might suffice for some domestic corporations) is impossible. Citizens United fails to address this concern, and may therefore lead to an unworkable guideline for lower courts and for legislatures who might eventually tackle this question of foreign-based corporate influence.

V: Citizens United Fails to Give Due Weight to Anticorruption and Antidistortion In both Austin and Buckley, the Court upheld limitations on corporate speech under the compelling interest of preventing quid pro quo corruption and distortion. Unfortunately, in Citizens United, the government abandoned the antidistortion rationale of Austin; as such, the Court was unable to give the argument due consideration. In fact, the majority dismissed such concerns, holding that any attempt to combat “undue influence” was impermissible, as it was not “a form of corruption that [justified] regulation.”22 In this statement, which limits the Court’s understanding of corruption to explicit quid pro quo, the Court completely ignores any and all effects of distortion, and dismisses distortion as unimportant, when, in fact, it truly is an important concern. The amount of money in the political arena is certainly an important thing to consider. Independent expenditures are just as important in this consideration as direct contributions, yet only the latter is subject to limitations, as only the Court assumes only the latter lead to quid pro quo. But consider the following scenario: Corporation X favors a candidate challenging an incumbent, who is unfavorable to corporation X’s business. With its 20 Citizens United v. Federal Election Commission p. 46-47 21 Citizens United v. Federal Election Commission; (Stevens, J. Dissenting) 22 Issacharoff, Samuel. "On Political Corruption." In Money, Politics, and the Constitution: Beyond Citizens United, edited by Monica Youn.

119-34. New York: Century Foundation, 2011.

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Williams College Law Journal general treasury, corporation X makes a series of independent expenditures favoring this challenger, ultimately dominates the airtime with ads against the incumbent, and undeniably helps the challenger oust the incumbent. It would follow, then, that the challenger would feel some gratitude and sense of debt to corporation X for its help in him winning the election. This then creates air of distortion, where the newly elected official now feels indebted to corporation X and pursues legislation that lopsidedly favors that company. Certainly this is distortive in nature, and thus it proves the majority was wrong to conclude that distortion has no effect on the political process. Furthermore, the Court has rejected the premise of preventing the appearance of corruption as a compelling governmental interest. Again, the Court’s logic is flawed in doing so. The perception of corruption can be as destructive as actual corruption, as if the public perceives its government to be corrupt, the public becomes disillusioned with that government.

This would create a society where enthusiasm and participation in our democracy is replaced by “cynicism and disenchantment” with the American political system. 23 Certainly this is an unfavorable outcome, yet the majority has deemed this insufficient to warrant any legislative prevention. In adopting such a limited view of “corruption,” the Citizens United Court neglects very real concerns of antidistortion interests, and lays the groundwork for distortive effects of money to permeate our politics even more so than they already do.

VI: An Egalitarian View of Free Speech is Better Than a Libertarian One In its decision in Citizens United, the majority embraced a “liberty-protecting” view of the First Amendment as opposed to an “equality-enhancing” one.24 The Court deemed the ability of all to speak to be far more important than the ability of all to be heard. But this raises the question: how effective can everyone’s speech be if not everyone’s speech can be heard? Surely the right to speak is important, but that importance relies upon the ability of that speech to be heard. An individual may certainly have the right to speak, but without the assurance that his voice will be heard, his right to speak is moot. There then has to be an assumption of a “baseline of minimally necessary diversity” as an “essential precondition to democratic selfgovernment.”25 The ability of all to be heard on a level playing field must, then, take importance over the right of all to speak, if democracy is to survive. To think otherwise would lead to an 23 Citizens United v. Federal Election Commission (Stevens, J. Dissenting) 24 Hasen, Richard L. "Citizens United and the Orphaned Antidistortion Rationale." University of California, Irvine, Law School, 2011. (“The Justices in the majority…embrace a view…that is liberty-protecting rather than equality-enhancing…”)

25 Sullivan, Kathleen M. "Two Concepts of Freedom of Speech." Harvard Law Review 124 (2010): 143-77.

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When Good Courts Go Bad “immediate drowning out of noncorporate voices” 26 by the overwhelming presence of corporations who can now speak freely, and who can afford to speak more loudly (that is, in more media and with more frequency) than noncorporate speakers. An egalitarian view of free speech, which assumes that the ability of all to be heard equally, better ensures the ability of all voices, including unpopular fringe dissenters, to be heard, while the libertarian view suggests that a speaker’s worth is determined by how loudly he (or it, in the case of a corporation) can speak. All that matters to the libertarian view is that all may speak, not that all are heard. The freedom of speech must be protected in such a way that permits restrictions on political speech if they are aimed explicitly at “[reducing] some speakers’ disproportionate influence”27 in the political arena. If the purpose of the First Amendment is to foster intellectual diversity and political dissent, to ensure that all citizens may voice their opinions and have them heard, then surely the egalitarian view of free speech—the view adopted by the dissenting justices in Citizens United; the view that says all must have an equal chance to be heard for free speech to truly be “free”—is best equipped to embody this mission.

VII: BCRA Was Narrowly Tailored to Merit Upholding The relevant sections of BCRA that were contested and ultimately struck down in Citizens United can be viewed as nothing more than “source restriction[s] or [as] time, place, and manner restriction[s].” 28 BCRA’s restriction on corporate speech limited the time of the electioneering communications to 30 days before a primary or 60 days before a general election, and restricted the place and manner to broadcast, cable, or satellite. The statute is written in a viewpoint-neutral language, and applies to a very specific message: material about “clearly defined candidates” in specific time frames, as described above. 29 BCRA did not prevent corporate speech in the form of independent expenditures any time before the 30-day or 60-day window, nor did it prevent corporations from dispensing election-related material in print (via pamphlets or newspaper ads, etc.) or online. Citizens United, the corporation, very well could have made its film Hillary available online for free without infringing on the regulations laid out in BCRA. Some may claim that BCRA was effectively a ban because the media it encompassed are the most effective platforms from which to disseminate information, especially politically 26 Citizens United v. Federal Election Commission (Stevens, J. Dissenting) 27 Sullivan, Kathleen M. see footnote 24 supra. p.176 28 Citizens United v. Federal Election Commission (Stevens, J. Dissenting) 29 Id.

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Williams College Law Journal charged information. While broadcast, cable, and satellite are indeed influential, the rise of the Internet makes this argument significantly weaker. Information travels faster and reaches a wider audience via the web than on cable. It seems logical that more people would see the free film online than on television, as a Google search is far less complex than ordering an on-demand film.30 BCRA was not a blanket ban, as the majority would like to paint it, but merely a time/place/manner restriction that applied to a specific window of time and a clearly defined and limited medium. Especially in our modern era, the Internet is more powerful than ever for disseminating opinions and political material. With the rise of blogging and social media, a film such as Hillary would have undoubtedly spread quickly. One need only look to the recent Kony 2012 video and its overnight popularity boom to see that the Internet is a formidable presence in the spreading of ideas.

VIII: Two Counterpoints: Individual Rights and the Corporate Form, and the Press Those who support the decision in Citizens United might voice, among others, concerns regarding 1) the fact that individuals, by merit of their decision to incorporate, do not lose their First Amendment rights, and 2) that much of the press is incorporated, and any ban on corporate speech might ban the press. To address this first concern, it is important to realize that, as discussed in Part III, individuals may still voice their opinions as individuals. Their rights have not been infringed, as the CEO of a corporation may still espouse an opinion, as long as he or she does so as that individual. This makes sense, because it might not be fiscally prudent for the CEO to infuse his or her own political beliefs into the day-to-day operations of a corporation. It might be said that the corporate form is the only way some individuals can afford political speech—that the pooling of resources in the corporate treasury allows for minority opinions to be heard. This is troubling in that while this may be true, the answer lies not in allowing unlimited corporate speech, but in altering the system so that individuals can afford to voice their opinions.

In creating a culture where the emphasis is on an equal playing field for all to be heard, the first step is for the Court to acknowledge egalitarianism as more important than libertarianism when dealing with the First Amendment. Once the Court takes this step, the legislature has room to write and rewrite laws ensuring that minority voices are heard without the necessity of a corporate form.

30 One need only look at a modern cable remote control to understand how a click of a computer mouse is far easier than navigating a cable provider’s on-demand service.

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When Good Courts Go Bad In regards to the concern about the press, one need only look to the First Amendment, which specifically mentions the freedom of the press. If the Constitution is understood as a document that should be interpreted based on the text, and not necessarily the original meanings of the text, then it becomes clear that as the 1789 America meant for “freedom of the press” to refer to the press of the time (i.e. a lone publisher on a street corner), the 2010 America should infer that the press extends to our modern understanding of the term, which now includes news corporations whose primary motive is relating the news. That is, a press corporation should be understood to be an organization dedicated to reporting the news in a neutral (or as close to neutral as possible) manner and that views its mission to be the impartial sharing of current news, and not the espousal of some ideologically charged position. Overturning Citizens United should be accompanied by a provision (perhaps through the legislature and not the courts) specifically exempting press organizations from BCRA’s regulations, as they have extra First Amendment protection. It is important to note that a press corporation is held to be “the press” first and a corporation second. The New York Times is a newspaper first and foremost, and not generally regarded as a politically activist corporation. In this sense, it differs from Citizens United, the nonprofit, which advertises itself and is understood to be an activist (that is, ideologically-driven) organization, and not a member of the press.

IX: Conclusion For the reasons presented above, Citizens United was decided incorrectly and poses significant, mostly negative, implications for the freedom of speech in America. In this broad, overtly activist decision, the Court “re-ordered the priorities of our democracy,” emphasizing the role of special interest (corporate money) over the voices of the voters.31 The First Amendment is indeed important, and political speech is indeed the most protected form of speech,32 but we must ask ourselves whose political speech is most protected? Surely it is the individual’s right to speak and right to be heard that takes precedence over the corporation’s right to speak. Citizens United was an unfortunate and erroneous decision that the Court should seek to overturn in Western Tradition Partnership. The consequences of Citizens United are numerous and grave, and warrant concern. If the Court will not acknowledge its mistake, then the legislature must step 31 Youn, Monica, before the Committee on the Judiciary. Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU School of Law before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, One Hundred Eleventh Congress, 3 February 2012.

32 Abrams, Floyd. "Citizens United and Its Critics." Yale Law Journal Online 120 (2010): 77-88.

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Williams College Law Journal up. Legislative remedy should be taken to ensure that the true freedom of speech is not forgotten in a sea of corporate influence. Under a guise of First Amendment reasoning, Citizens United undermines, rather than protects, the freedom of speech and makes the American political process increasingly less democratic.

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Governmental Oversight of Sports Leagues _________________________________ Amanda Cluse California State University Northbridge __________________________________ Sports are the great American pastime. Families and friends enjoy viewing their favorite teams and stars in a friendly, yet competitive way. Children, teens, and adults admire and emulate these individuals, as their recognition, financial success and adoration is unparalleled.

The relative importance of athletes and their achievements has been debated for many decades, as they are considered by many to be both educational fixtures and entertainment enterprises.

Sport forms part of human and social development; it can contribute to social cohesion, tolerance, integration and is an effective channel for physical and socio-economic development.

As a universal language, sport can be a powerful medium for social and economic change and can be utilized to bridge cultural gaps, resolve conflict and educate people in ways that very few activities can.

Throughout history, our country’s pride and joy has been diluted with scandal. Most recently, professional athletes have been using performance-enhancing drugs to break world records, garner fame, and obtain international recognition.

It appears that record-breaking

performances and exceptional athleticism are practically unattainable without the usage of performance enhancing drugs (PED). Barry Bonds, a 7-time MVP Major League Baseball player, with a record of 762 home runs and 514 stolen bases was indicted on charges of perjury and obstruction of justice related to steroid use in 2007. He testified to a grand jury that he never knowingly took illegal performance enhancing drugs. Barry Bonds eventually admitted to using steroids, indicating his personal trainer misled him to believe the drugs ingested were natural.

The trial lasted for nearly 2 years, with an estimated cost of almost $6 million dollars of government funds spent to prosecute him. His trial began in March 2011 and shortly thereafter, was found guilty of obstructing justice. With the nation in a budget crunch, resources used to convict Bonds of lying to the grand jury appears disproportionate to the crime committed, and diverts funds from other major cases.1

1 Dohrmann, George. "The U.S. vs. Barry Bonds." Sports Illustrated 114, no. 13 (March 28, 2011): 16-17. SPORTDiscuss, EBSCOhost

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Williams College Law Journal The government concurrently conducted an investigation on the Bay Area Laboratory Co-Operative (BALCO). BALCO supplied a PED called “the Clear” to many professional athletes. The lead chemist of “the Clear” was later charged and jailed at a taxpayer cost of nearly $50 million dollars. 2 World-class cyclist and philanthropist Lance Armstrong was charged for using and trafficking performance-enhancing drugs. Faced with opposing testimonials from fellow cyclists, Armstrong attempted to sue the USADA for extending, “corrupt inducements” to his peers.3 The case was later dismissed.

Cycling for the United States Postal Team, Lance Armstrong

consecutively won the Tour de France seven times.

Many feel as strongly about the integrity of their heroes as they do about their accomplishments. Each professional league maintains strict rules and codes of conduct to bring a sense of fairness and consistency to the game. When the leagues are unable to police themselves, the responsibility of justice relies on the government; with loose conservatorship, as millions of dollars are spent to combat illegal drug use in sports. It should be noted that certain aspects of an athlete’s use of PED’s are not illegal or does not constitute what most consider a major infraction of federal law. Although society may consider the usage of PED’s by a small group of individuals to be minor, substantial funds are expended by the federal government to investigate these transgressions.

The average American does not have an influence on government intervention with the law and how public funds should be distributed on each trial. By directing millions of dollars to prosecute those that commit media-sensational crimes, funds are lessened for trials with more severe offenses. The valuation of crimes is becoming incommensurate; with a country suffering from a budget deficit the government needs to reconsider the utilization of its monetary resources. The average cost of a death penalty trial is $620,932, while most trials cost one-eighth of this amount.4 Major League sports are generally protected from Antitrust Laws. After several lawsuits, in 1958, the Senate Judiciary Subcommittee on Antitrust and Monopoly held a trial titled, “Organized Professional Team Sports." The trial concentrated on the restriction of antitrust laws 2 "FDA 'steroid cop' Jeff Novitzky investigating Lance Armstrong has reputation as dogged investigator - ESPN." ESPN: The Worldwide Leader In Sports. http://sports.espn.go.com/oly/cycling/news/story?id=5449911 3 "BBC Sport - Lance Armstrong fails to block doping case against him." BBC. http://www.bbc.co.uk/sport/0/cycling/19326603 4 Miller, Dan. "Taxpayers to Pay for Defense in Death Penalty Case." The Patriot – News. http://search.proquest.com/docview/822874599?accountid=7285.

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Governmental Oversight of Sports Leagues to "exempt certain aspects of designated professional team sport.” 5 Many believe these exemptions result in a fiduciary responsibility to protect the integrity of major sports and justify the enforcement of league rules with government resources.

Other high-profile athletes involved with PED scandals include Marion Jones, José Canseco, Roger Clements, Mark McGwire, Alex Rodriguez, Sammy Sosa, among others.

Substantial amounts of American taxpayer dollars are being used to fund many of these public inquisitions and trials. An important question has arisen: Should public funds be used to finance investigations and trials of athletes who, in most cases, have broken only the rules of the private league in which they participate? Surely certain substances are illegal, however, the funds and attention paid to a relatively minor legal infraction is not justified. Millions of dollars have been spent to prosecute athletes for using performance enhancement drugs, but rarely has the United States successfully prevailed to convict these athletes. To combat this problem, an organization called the United States Anti-Doping Association (USADA), tests all Olympic athletes and vows to prosecute if PED’s appear in drug tests.6 Also, major league sports such as the NFL, NBA, and MLB have a similar stance regarding the use PED’s.

There is no clear-cut solution on how to resolve this problem, but instead some suggested reform. Particular to the Lance Armstrong case, it may be interesting to reopen the case to see if the U.S. Postal Service team used public money to buy and traffic drugs. Prosecuting a quasigovernmental organization is a conflict of interest for the United States, unless there was an investigation to hold specific people accountable. Moreover, considering the Lance Armstrong case, should the USADA be investigated as well? After all, the organization was unsuccessful in convicting Lance Armstrong, but still used taxpayer dollars in its effort. Its slogan, “Preserving the Integrity of Competition” along with a mission to “identify and sanction those individuals who are engaged in the effort to gain an advantage over athletes who are competing clean”7 appears to be inconsistent with the recent athletic PED use scandals. Essentially, the USADA is the last line of defense to ensure athletes are playing clean, however, many opportunities escalated into million dollar lawsuits. If Lance Armstrong is correct in his convictions that the USADA bribed or coerced fellow cyclists to testify against him, should the organization stand trial for this claim as well?

5 United States Senate Committee on the Judiciary, "Professional Sports and Federal Antitrust Law." 6 "About | U.S. Anti-Doping Agency (USADA)." U.S. Anti-Doping Agency - USADA. http://www.usada.org/about 7 "About | U.S. Anti-Doping Agency (USADA)." U.S. Anti-Doping Agency - USADA. http://www.usada.org/about

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Williams College Law Journal There is no doubt in the fact that performance-enhancing drugs are not only harmful to athletes who use them, but can also be indirectly harmful to other athletes that are competing with the users. There is clear evidence that drugs provide unnatural results in athletes, and therefore take away from the competitive nature of sports. If performance-enhancing drugs in sports were not banned, imagine the overall negative effect it would have on the future of competitive sports. Skill would no longer be judged by individual accomplishment and talent, but rather by what combination of drugs allow the athlete to perform better than the others. As for the athletes who do not take drugs, they would automatically lose respect because their talent will be ruled out by the assumption that they are using a performance-enhancing substance.

It is important to seek justice in all forms of crime, whether high profile or lesser-known cases. With that said, the government should maintain discretion over which cases to participate in and to what extent. Athletes almost never face severe criminal or civil charges for using PED’s. The incentive of publicly humiliating an athlete does not merit millions of taxpayer dollars. Our nation does not have a surplus of money to spend on high profile, media sensational cases. Overall, the government needs to re-evaluate its level of participation in cases that may not benefit the public as a whole.

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Marshall’s Legacy _________________________________ Becky Tseytkin Williams College __________________________________ In McCullough v. Maryland, the Supreme Court defined Congressional power as “supreme within its sphere of action,” ruling that Congress’ enumerated powers were absolute and far-reaching. Over the course of the next two centuries, the Supreme Court dramatically expanded Congressional power by absorbing more and more legislation into the “sphere” of the Commerce Clause. Although Congress’ power is far more expansive than it was at the turn of the twentieth century, the Court’s decisions have still not granted Congress sufficient latitude to regulate serious and urgent national problems, departing from the broad framework that Justice Marshall laid out in the nineteenth century. First, the Court has not fully taken into account the radical economic changes that the country underwent over the course of two centuries, and was too slow during the twentieth century to redefine “interstate commerce.” Second, the Court has demarcated the relationship between Congress’ enumerated powers and the Tenth Amendment too rigidly and technically, creating a dynamic in which Congress is hamstrung in arbitrary and harmful ways. Though such arguments may raise the specter or federal tyranny, there are sufficient safeguards in place to ensure that as long as Congress is legislating in pursuit of an enumerated power, it will not become tyrannical or subvert the principles of federalism.

McCullough v. Maryland (1819) and Gibbons v. Ogden (1824) addressed the extent and limitations of Congressional power, and though they preceded current case law by nearly two centuries, they foresaw historical changes and laid out a timeless framework for the interpretation of Congressional power. In McCullough, the Court ruled that Congress had the power to establish a national bank, concluding that the interpretation of Congress’ enumerated powers could not be a rigid or formalistic process. Marshall saw the taxation power as allencompassing, including all the appropriate means with which Congress could achieve its aims; in this particular case, those means included the creation of a national bank. It is telling that Marshall did not articulate any specific principles on what means are and are not appropriate for the federal government to employ, preferring to give Congress wide latitude in determining its

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Williams College Law Journal policies. Congress’ broad “sphere” of dominion, in which its “vast powers draw after them others of inferior importance”1, became a guiding principle for centuries to come: where Congress has a power, its power is complete, and encompasses the concomitant steps that must be taken to exercise its power. The generality of Marshall’s argument makes it impervious to historical changes, permitting the Courts of future generations to interpret the “means” necessary for the execution of Congress’ aims. Whereas a national bank was an appropriate measure for taxation in the beginning of the nineteenth century, regulation of local production would later be appropriate for regulating interstate commerce. Marshall also foresaw the ambiguity of Constitutional language and the multiplicity of its meanings. To combat the dangers of formalistic interpretation, he spent a large portion of his opinion discussing the nuances of linguistics. In his examination of the word “necessary,” Marshall reflected: “Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea... the word “necessary” is of this description. It has not a fixed character, peculiar to itself. It admits of all degrees of comparison”2. When he examines the word “necessary” within the context of the federal government’s broad enumerated powers, Marshall concludes that its meaning is closer to “appropriate” than to “indispensable.” This argument about linguistics could also be extended to Marshall’s analysis of other language of the Constitution, anticipating different perspectives of “commerce” and “among the states.” By articulating a loose framework for the interpretation of the enumerated powers, Marshall ensured that changed economic, social, and national circumstances would not render the Constitution obsolete. Rather, its provisions would be reinterpreted to accommodate unforeseen circumstances.

Similarly, in Gibbons v. Ogden, Marshall uses broad and unspecific language to expand the power of Congress, creating a framework that future courts can use. In defining “commerce” as “intercourse” and refraining from listing everything that this “intercourse” is comprised of, he foresees that commerce will change and expand over time. Marshall defines the word “among” as “intermingled with.” It is crucial that he does not define it as “between” or “interstate” at this juncture, because the word “intermingled with” is far more broad and far-reaching. It can be argued that the use of the word “among,” as opposed to “interstate,” grants Congress more power to regulate matters that affect multiple states—whether or not what they are regulating actually crosses a state’s border. This crucial distinction would later be misapplied in New York v. United !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

1 Chemerinsky, Erwin. Constitutional Law, 3rd Edition. New York: Aspen Publishers, 2009, 132.

2 Ibid., 133.

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States. Marshall also says: “Commerce among the States, cannot stop at the boundary line of each State, but may be introduced in the interior”3, reinforcing the principle that the division between interstate and intrastate commerce is a blurry one, and may shift in the future.

According to Marshall, the only truly intrastate commerce does not “affect other states”4, a claim that has been abandoned in recent Supreme Court cases.

Though McCullough and Gibbons granted Congress wide latitude in the measures it could enact in furtherance of its enumerated powers, the twentieth-century Supreme Court constantly expanded and contracted Congress’ power, diverging from Marshall’s interpretation and taking too long to re-examine the Commerce Clause. For example, in U.S. v. E .C. Knight Co and Carter v. Carter Co, the Court ruled that the power to regulate commerce did not extend to the power to regulate manufacturing and production. In his dissent in E.C. Knight, Justice Harlan remains faithful to Marshall’s original definition, echoing the idea that “interstate commerce” includes “any combination…that disturbs or unreasonably obstructs freedom in buying and selling articles…affects, not incidentally, but directly, the people of all states”5. As a result, these cases treat the actual exchange of goods as an interstate matter and the manufacturing of goods as an internal matter, but this is a theoretical distinction in a nation where a monopoly on manufacturing affects many states and their commerce. It was not until Roosevelt’s “Court-Packing Plan” that the Court reexamined the scope of Congressional power, granting Congress more latitude in coping with the national crisis of the Great Depression. Yet, Congress’ power is still too limited, and the Court is too slow to redefine it in accordance with changed economic circumstances. In United States v. Lopez, for example, Justice Breyer, in his dissent, urged the Court to look at the “cumulative effect”6 that local activities had on interstate commerce, rather than applying an obsolete conception of the word “local.” In U.S. v. Lopez and U.S. v. Morrison, the Court seemed to be implementing a more rigid test than the rational basis test, and particularly in Morrison, it rejected Congressional findings and substituted its own view of economics for that of Congress’. Considering that Congress has more resources to make such findings and determine how reasonably a law is related to interstate commerce, the Court should have deferred to it. It is not a stretch for Congress to claim that school violence and violence against women have an economic impact on the states, and that it is within its purview to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

3 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 143.

4 Ibid., 144.

5 United States v. E.C. Knight Co., 156 U.S. 1 (1895). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 147.

6 United States v. Lopez, 514 U.S. 549 (1995). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 193.

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Williams College Law Journal regulate. These cases are at odds with Wickard v. Filburn, which emphasized the cumulative effect on interstate commerce, rather than the particular local activity that is being regulated. A single farmer growing food for his own consumption is surely more localized activity than a state permitting gun violence to occur in its schools.

In recent cases, the Court invoked the Tenth Amendment as a means of diminishing the scope of Congress’ power, invalidating federal laws even when Congress was directly exercising one of its enumerated powers. The Court’s decisions to value state sovereignty over federal power should have involved a balancing test, in which the Court weighed the interests of the states against those of the federal government. Instead, the Court invalidated the laws by creating a sphere of state sovereignty into which Congress could never intrude, no matter the circumstances. The flaws in this broad and categorical conclusion are illustrated by New York v.

United States (1992) and Printz v. United States (1997).

In New York, Justice O’Connor’s opinion focuses almost exclusively on the Tenth Amendment and gives short shrift to the Commerce Clause; this seems logical, because the petitioners didn’t claim that Congress had exceeded its power7. And yet, the Commerce Clause should have come directly into play, for it was the broad constitutional power that justified Congress’ incursion into states’ territory. O’Connor frames the tension between the Commerce Clause and the Tenth Amendment as a clear division, in which both Congress and the states have an equal claim to power, and in which there are no conflicts or overlaps: “The two inquiries are mirror images of each other. If a power is delegated to Congress…the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty…it is necessarily a power the Constitution has not conferred on Congress”8. This “mirror image,” however, is not as perfect as O’Connor claims it is, and has two major flaws.

The first interpretation starts with Congress’ powers under the Commerce Clause as a point of reference, and prevents the states from usurping Congress’ enumerated powers. This perspective is in keeping with the Court’s past interpretation of the Tenth Amendment: Congress has a monopoly on the enumerated powers, and the states get the rest. The second “image” O’Connor offers is much more of a stretch, and it is upon this interpretation that the case hinges; she argues that the states have the monopoly over certain “traditional functions,” and that these functions are automatically not within the scope of Congress’ enumerated powers. This is a backward way !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

7 New York v. United States, 505 U.S. 144 (1992). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 218.

8 Ibid.

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of resolving the issue, because it eviscerates the principle that the states retain only “what has not been surrendered.” Congress’ powers are enumerated and the states’ are not, so the process of allocating power must begin with the powers that are explicitly granted to Congress, and not with an impenetrable sphere of sovereignty around the states’ traditional roles. Quoting from the Federalist Papers, O’Connor says that States have “a residual and inviolable sovereignty”9. The opinion touts the “inviolable sovereignty” of the states, but disregards the word “residual,” thereby encroaching on Congress’ power and preventing it from tackling a national crisis.

Additionally, the Court disregards its ruling in Garcia v. San Antonio MTA, in which it said that the “traditional functions” of the states were too blurry for the Court to adequately define. It is illogical for the Court to then define these traditional functions so categorically in New York and Printz that the federal government is powerless to override them.

The second problem with O’Connor’s opinion is its dismissal of the fact that Congress is regulating interstate commerce, and that it is the most equipped legislative body to deal with the crisis of radioactive waste. New York v. U.S. concerns a conflict between all of the states, some of which are not disposing of their radioactive waste and are thereby harming other states. As a result, Congress’ legislation was enacted to reduce conflicts between the states and to efficiently mitigate the harms of radioactive waste. It was an especially needed law because Congress did not have the resources or manpower to directly dispose of the states’ waste. In McCullough, Marshall articulated a powerful justification for why the federal government must have the power to resolve conflicts between the states: “Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts”10. This reasoning is not adopted in New York, where conflicts between the states caused the federal government to step in. One of the strangest claims in the New York opinion is: “The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce”11.

It seems that O’Connor has concluded that when the state governments are regulating interstate commerce poorly, Congress cannot step in to regulate interstate commerce through the states.

However, it is Congress’ overriding power to regulate interstate commerce, and to take all !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

9 Ibid., 222 10 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 131.

11 New York v. United States, 505 U.S. 144 (1992). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 219.

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Williams College Law Journal “necessary and proper” measures to do so; in this case, forcing the states to either enact the federal program or to take title to the waste was deemed the most logical and unobtrusive solution, and certainly a necessary one.

The third problem with the Court’s argument is that it assumes there is a clear division between federal power and state power, again ignoring the increasingly interconnected and economically integrated nature of the nation at the end of the twentieth century. The enumerated powers do not have clearly demarcated boundaries, but can often, as in this case, spill over into state functions—much like regulation of commerce spilled over into regulation of manufacturing. As a result, the states’ “traditional roles” should be reframed with attention to the problem at hand, rather than relying on an abstract idea of state functions. A balancing test would have been particularly helpful, and the Court could have considered which was more greatly thwarted: Congress’ power to regulate interstate commerce, or the states’ ability to retain control over how their governments are run.

Had the Court taken this approach in New York v. U.S., and balanced federal interests against state interests, it is feasible that it might have found in favor of the states. In such an analysis, the Court might have decided that the states’ power to regulate radioactive waste within their borders was of more importance than the federal government’s power to regulate interstate commerce. By resisting the balancing approach, the Court created a more dangerous precedent.

Because of the sweeping way in which the Court defined and protected state sovereignty in New York, Congress’ ability to exercise its powers was more severely limited in later cases. In Printz v. U.S., the court used the precedent of New York v. U.S. to restrict Congress’ power to enact the provisions of the Brady Bill. According to Justice Scalia’s opinion, Congress could not temporarily mandate states to conduct background checks because it could not regulate state officials. The Court again makes the argument that States must “remain independent and autonomous within their proper sphere of authority”12, but again fails to provide the justification for how this “sphere” has become impervious to the far-reaching power of the Commerce Clause. The Court also follows its reasoning in New York by declaring that “a ‘balancing’ analysis is inappropriate”13. Consequently, the Court used an abstract principle of state sovereignty to automatically defer to the states and hinder Congress in implementing its legislation. Had it conducted a balancing test, the Court would have, as the dissent pointed out, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

12 Printz v. United States, 521 U.S. 898 (1997). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 230.

13 Ibid.

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discovered that the temporary and “trivial burden”14 imposed on the states was far outweighed by Congress’ exercise of an enumerated power. But because the Court remained opposed to conducting a balancing test, and continued to insist that there could be no overlaps between federal and state power allocations, Congress was severely limited. Thus, the consequences of New York v. United States are evident in the Court’s decisions five years later.

Reno v. Condon made a distinction between federal regulation of state activity and federal regulation of the manner in which states control private parties. In Reno, the Court declared that the former was constitutional, whereas the latter was not. However, this division is arbitrary, and has no basis in either Article I or the Tenth Amendment—if it is “state sovereignty” that is at risk, there is no reason to conclude that regulating a state’s activity is a more legitimate exercise of Congress’ power than regulating the state and the individuals in it. In both cases, Congress is restructuring the state’s policies and thereby affecting the individuals who live within it. Moreover, it can be argued that Printz also involved a regulation of state activity, and that an order to withhold information is as much an imposition on state regulation as is a background check. As a result, this series of cases created an arbitrary standard for Congress’ exercise of its enumerated powers, preventing it from enacting the most appropriate legislation to combat national problems. Furthermore, in McCullough v. Maryland, Marshall perfectly captured the concept of state sovereignty, establishing a precedent that should be more closely followed in the present day. When he described the supremacy of the federal government over the state government, Marshall argued that the state governments could not be considered a stand-in for the people themselves: “The government proceeds directly from the people…in form, and in substance, it emanates from them”15. As a result, Marshall argues, states do not possess “supreme dominion”16, because it is not from them that the Constitution derives its power, but from the people. He places the emphasis on the individuals of the state, and not on the states as their own entities. O’Connor echoes a similar sentiment in her opinion in New York v.

U.S., but she uses it to bolster the opposite view: “The Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself”17. From this observation, she concludes that the states’ must retain a certain amount of power in order for individuals to be protected from federal tyranny. However, the idea that !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

14 Ibid., 235 15 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 130-131.

16 Ibid. 130 17 New York v. United States, 505 U.S. 144 (1992). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 222.

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Williams College Law Journal “state sovereignty is not just an end in itself” should warn against overly abstract conceptions of state sovereignty. In New York and Printz, the Court should have been more circumspect in deciding whom it was protecting, and what was being achieved by invoking state sovereignty.

When the enumerated powers are interpreted too broadly, there is a risk that Congress will become omnipotent—free to link every piece of legislation to an enumerated power, no matter how attenuated the link is. However, there are two considerations that counteract this fear.

First, the Court ensured that it would be able to review Congressional decisions by using the rational basis test. This is not necessarily blind deference to Congressional findings, but a constant check to ensure that legislation is reasonably related to a legitimate governmental interest. Because it is the role of the Court to confirm that there is a link between legislation and an enumerated power, Congress will not have free rein over the laws it enacts. In McCullough, Marshall’s analysis of the word “necessary” foreshadowed the principle of deferring to Congress and implementing a rational basis test. In concluding that “necessary” was not equivalent to indispensable, and was more closely linked to “what Congress deems appropriate,” Marshall set the precedent for the rational basis test. The rational basis test strikes a reasonable balance between deferring to Congressional findings and retaining oversight of Congress’ exercise of enumerated powers.

Secondly, proponents of limited Congressional power frequently present the counterargument that if Congress is given such flexibility in tangentially linking legislation to enumerated powers, tyrannical legislation will pose a threat to individual rights. Gonzales v.

Raich (2005) is often cited as an example of Congressional tyranny, in which a federal law banning medical marijuana was upheld. However, it was never purported that Article I was intended to promote individual rights. For this reason, the amendments were written to protect individuals from intrusion by the federal government. In the case of Gonzales v. Raich, the problem is not that Congress lacked the power under Article I to enact the law, but that the fourteenth amendment was not invoked to invalidate the law. The Court should not make moral judgments when ascertaining whether Congress has power under the Commerce Clause; Article I establishes the theoretical power allocated to Congress, whereas the amendments protect individuals against tyrannical and harmful laws. In Heart of Atlanta Motel, Inc. v. United States, Justice Clark makes an astute comment: “That Congress was legislating against moral wrongs in

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many of these areas rendered its enactments no less valid”18. Of course, the primary purpose for the Civil Rights Act was to eliminate discrimination, and interstate commerce was a crafty way to link the law to an enumerated power. However, this does not mean that it wasn’t related to interstate commerce, and there is a difference between doing something devious and doing something unconstitutional. Furthermore, these counterarguments place too much emphasis on federal tyranny and too little on state tyranny. A state could have just as easily enacted a ban on medical marijuana, and if the bill of rights were more effective and powerful, the ban could have been deemed unconstitutional. In the case of Gonzales v. Raich, the problem was with past fourteenth amendment jurisprudence, which was not expansive enough to grant individuals a right not to be in pain. The tension between Article I and the amendments must be resolved, but it is illogical to relegate federal power to the state legislature—a body equally likely to enact unjust laws or violate individual rights.

In the earliest cases dealing with Congressional power, Marshall sought to defend the ambiguity of Constitutional language and the fragility of its provisions in the face of changing circumstances. His opinions established a framework in which “intercourse,” “commerce,” “among the states,” and “necessary” were all fluid terms, open to re-interpretation as the national economy became more integrated. Nor was the role of the states fully solidified, because the federal and state government collided in different ways as economic circumstances changed.

States are often referred to as the “laboratories of democracy,” but there must be a caveat to this principle: if their experimentation interferes with and is harmful to the activities of other states, the federal government has the express duty to step in and to regulate the conflict. The Court of the nineteenth, twentieth, and twenty-first centuries, however, was inconsistent and arbitrary in the ways in granted power to Congress, failing to grant it power at crucial moments, and failing to sustain Marshall’s legacy.

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18 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). Case as reprinted in Constitutional Law (Chemerinsky, 3rd Edition) page 170.!

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Interview with Marcus A. Christian’90 Executive Assistant United States Attorney

by Corbin Chu Marcus A. Christian’90 is the Executive Assistant United States Attorney at the United States Attorney’s Office for the Southern District of Florida, one of America’s largest and busiest offices of federal prosecutors. Before taking this position in May of 2010, Marcus served as a deputy chief in the Major Crimes Section and as an Assistant United States Attorney. He began his legal career as a judicial clerk for Judge Haldane Robert Mayer of the United States Court of Appeals for the Federal Circuit in Washington, D.C. Mr. Christian received his undergraduate degree from Williams College. During his senior year in college, Marcus received a Rhodes Scholarship to attend the University of Oxford in Oxford, England. At Oxford, Marcus earned a Master of Science degree in Education. Marcus subsequently attended Yale Law School in New Haven, Connecticut, where he received a Juris Doctor degree.

What motivated you to pursue a legal education? What about Williams formed that interest?

I saw, in the law, a way to effect change. I saw it as the vehicle by which many people, historically, had done good and something that I could pursue for that reason.

I started thinking about it as I was coming to Williams. Williams reinforced it in a lot of different ways. One, Williams started providing me tools to evaluate policy, and different ways of looking at the world – be it tools of the economist, or an understanding of a psychologist, or mathematical tools.

Two, I had professors that were supportive of the idea that education can be something that is valuable for doing good and doing well.

And not only that, but they indulged me when I wanted to talk about these tools and Volume II Issue I ! Fall 2012

how to understand the concepts, but also: what are the broader policy implications?

How did your experiences influence how you decided where you were going?

One of the ways I’ve been affected is by mentors. For one, one of the first jobs I had after law school was working for a federal judge – the U.S. Court of Appeals for the Federal Circuit in D.C. The judge never said “This is the way you should live your life.”

But his example was one where you could see his values through the choices he made.

He ultimately chose the public sector and he always made sure he made time to spend with his daughters. It was one of the things that helped me not to forget the things that gave me strength and a sense a purpose, like my family.

Another thing is to plan one’s finances. At a Wall Street firm, a young associate can live quite a nice lifestyle. But when one decides to change his or her lifestyle, some of the happiest ones are the ones who save their money along the way and plan for the move to the public sector.

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Interview with Marcus Christian’90

What impacted your decision to go back to Florida and practice law there?

When I first went back to Florida, there was an opportunity to take part in an initiative that was a little bit off the beaten path for lawyers – to be with a non-profit organization that was providing scholarships for low-income children. This was a scholarship where kids signed a contract to maintain certain grades, stay out of trouble with the law and drugs, and receive a 4-year, full-tuition scholarship.

Florida is a state with a reputation; there always seems to be some crazy news story.

But what attracted me to move back was a sense that there are kids who are suffering, who don’t have opportunities to help themselves out. There seemed to be a sense, when I moved back, that we could do more for the education system out there and to make opportunities for people.

For those interested in law school, what would prepare students for a law education? How is the transition? Do you have any advice for them?

I think Williams helped me form a respect for others, different viewpoints, being able to accept different viewpoints and address them from an analytical standpoint as opposed to attacking people. I think one of the great tools of a lawyer is to disagree without being disagreeable, and I think I learned some of that at Williams.

A sense of community and a sense of team spirit are also very important. There are some places in the legal world where there is not as much of a weeding out approach and you can have a more of a team-spirited approach.

People are there, they come, and they’re helpful.

I think that Williams is a kind of place that can spoil you, where you meet people who do feel that “were in it together.” I think it was April when I came here [to Williams].

President Falk was giving a speech about what a Williams education prepares you for – and he said that it doesn’t necessarily prepare you for your first job; it prepares you for your last one. My ability to assume different roles in different places was influenced by the sort of education I pursued here [at Williams], and I was lucky to go to a law school that also took that perspective.

I have noticed that, in addition to one’s skills, it’s good to study something quantitative as well. When I clerked at the Federal Circuit Court of Appeals for patent law, most of the patent attorneys have some engineering or science background. But because I took some math courses, I understood and could follow such briefs [for patent law]. Also, I think students here [at Williams] are generally well prepared, but you can always improve as a writer.

How did your time at Williams prepare you for and influence your decision to attend law school?

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