Improving Law School “Transparency”
mrick101
Jeffrey Evans Stake[0]
Given their central role in the training and socialization of lawyers, law schools are uniquely obliged to present themselves honestly to the public and to their prospective students. In recent years, law schools have failed to live up to that simple standard. As Ben Trachtenberg documents in detail,[1] some law schools have lied or deliberately presented misleading information. More broadly, all law schools have followed the ABA mandate to report employment statistics that, until recently, were defined in ways that would have surprised many law school applicants. The ABA has taken steps to improve the flow of information from law schools to the public. It has punished perpetrators and reformed reporting rules. What more should be done?
Prof. Trachtenberg argues for increasing the penalties for individuals involved in deceptive representations. One of the admirable attributes of Trachtenberg’s approach is that it focuses punishment on the key actors. When law schools lie, they set a terrible example for law students and lawyers, undermining the norms of the profession. If law schools, the very places that teach professional responsibility and legal ethics, somehow see fit to lie when the benefits outweigh the costs, law students and lawyers may take to heart the apparent lesson that it is acceptable to deceive in order to advance the interests of one’s self or one’s employer or one’s client. Beyond that, it is not implausible that lying by law schools erodes public confidence in the justice and integrity of the legal system and undermines its ability to coordinate behavior by setting social norms. In any case, the lying in which law schools have engaged is plainly deplorable behavior deserving severe punishment. But the lies of law schools start with individual employees; it is their behavior that needs to be constrained. If society punishes only the schools and leaves the punishment of individuals up to the schools, the penalties that the individuals face, typically loss of job, may be inadequate to create an efficient system of deterrence. Trachtenberg’s approach avoids that limitation by punishing the liars directly and in ways that are not available when schools do the punishing.
On the flip side, Trachtenberg’s proposal avoids punishing the innocent, as can happen when the ABA sanctions schools or when peers kick them in the reputation. After lies at the University of Illinois College of Law came to light, the U.S. News and World Report (USN&WR) peer assessment score for Illinois fell from 3.5 to 3.1. That drop contributed to Illinois’s plummet in overall rank from 23 in 2012 to 35 in 2013 and to 47 in 2014. If the teachers and administrators evaluating Illinois were merely responding to the new LSAT and UGPA information and changing their assessment accordingly, then the new reputation score should not be seen as inflicting punishment on Illinois but rather as putting Illinois where it should have been all along. But if the peers lowered their reputation assessments beyond what was justified by the new statistics, then the new reputation score includes an element of punishment. If that is in fact what happened, the peers have punished the victims, the very students who were deceived into attending Illinois by the false numbers.[2]
Despite these, and other, advantages of Trachtenberg’s approach, I am not yet convinced that punishing lawyers in law school administration will enhance what is often called “transparency,” which I take in this context to be a fair presentation of the facts. I do not doubt that an increase in punishment will diminish the likelihood that any lawyer will make a misleading statement. However, as Trachtenberg points out,[3] many of a law school’s reporting tasks that are now being performed by lawyers could be done by non-lawyers. If the increase in the threat of punishment makes the expected cost substantially greater for lawyers than for non-lawyers, jobs that need not be assigned to a lawyer will become relatively more attractive to non-lawyers. Over time, such tasks will tend to be allocated to non-lawyers whose behavior will not be subject to bar discipline and might even be less likely to conform to desired standards. It is not a certainty that the gains from improving the behavior of lawyers outweigh the losses from shifting some of those tasks to non-lawyers.
There is another problem as well. Subjecting lawyers to personal punishment for failure to alert bar authorities might align their interests in secrecy with the interests of their employer. If employees face punishment, they have more to gain from keeping information from the ABA, which will reduce the chances that they will blow the whistle on their employers. Misreporting by law schools might be more likely to remain hidden if the employees think they could be punished for failing to alert authorities at an earlier date.
Finally, although there is no doubt that some law schools have deliberately lied in the past, many (if not almost all) schools have tried to report honestly.[4] And now that Illinois and Villanova have been punished by the ABA and their reputations have been blackened, the chances of misreporting must have fallen still further. The ABA can increase the odds of truthful reporting by making sure that the standards for reporting are clear and practicable. Recently, the ABA has taken important steps to improve the utility of the numbers being reported by dividing the employment into groups. If that dis-aggregation is adequate for law schools to honestly promote their programs and the lines drawn are workable, schools should be happy to comply and will not need to make up their own categories of employment. With regard to the accuracy of information reported by almost all law schools, tailoring and clarification of the ABA standards will be more important than increasing the personal punishment lawyers face for being involved in misreporting.
My skepticism about the effectiveness of punishing members of the bar should not be interpreted to mean that I condone any ethical lapses of law schools and their employees in their releasing of information. More can and should be done to reduce the harms from law school misreporting. To examine this issue, it might be helpful to divide the harms into three groups. The first kind of harm, perhaps the most important, is the harm to social expectations and professional norms that attends deliberate fabrications and falsifications. I mentioned this above, and will not elaborate any further here.
The second kind of harm is the harm befalling individual students when law schools, whether intentionally or not, publish inaccurate information. For example, a lie or mistake in reporting LSAT and UGPA statistics might have increased the rank of a school in the USN&WR ranking, which might in turn have misled individual students into matriculating at that law school. Those students may have been harmed by the misinformation. What is that harm? I do not believe that the overall educational and employment differences between the law school chosen and the school forsaken in each case would have been large, if indeed they existed at all. This is so because inaccurate information about LSATs and UGPAs in most cases would not make a large change in rank, and there is little difference in the overall quality of schools ranked closely by USN&WR. As far as we can tell, no school has lied on many criteria, and until such a school is identified, we can be reasonably confident that few schools if any have lied their way to a rank far above their true quality. The lies and mistakes that have been made have probably made little difference to the quality of legal education received by deceived students.
But a loss of educational opportunity is only one of the harms students could have suffered from misreported statistics. By increasing the rank of some schools, bad LSAT and UGPA numbers may have caused some students to pay more to attend law school than they would have otherwise paid. For example, a student might have been offered a scholarship of $100,000 by school A (rank 40) and a scholarship of $60,000 by school B (rank 38), where both schools have the same nominal tuition. The student might have then chosen to attend school B, based on its higher rank. But suppose also that school B would have been ranked 42 if USN&WR had known its real numbers. Had this student known that, he would have chosen school A and paid $40,000 less for law school. In such cases, the difference in price represents a clear loss to the student.[5]
Is this realistic? Are students willing to pay a higher price to attend a school with higher rank? Anyone in law school admissions would probably say, yes. And the applicants themselves report the same thing. Brian Broughman and I are analyzing the importance of price compared to rank to students choosing between law schools.[6] In our preliminary analysis, we have found that price and rank both matter, but that rank matters more and cost is only a secondary consideration for most students choosing a law school. Of all the participating applicants in our study who had a choice between two schools and who reported their preference, over sixty percent attended the highest rank school at which they were accepted, compared to only twenty-six percent who chose in favor of the law school with the lowest cost. This sensitivity to rank should come as no surprise. After all, rankings sell magazines and it would make no sense for students to buy the magazines and carry them around to forums and then ignore that information. These preliminary findings are consistent with a June 2012 Kaplan Test Prep survey in which thirty-two percent of the respondents said that rank was the most important factor in their decision and, in response to a separate question, eighty-six percent said that rank was very important or somewhat important.[7] According to another study by Amanda Griffith and Kevin Rask, students are also sensitive to rank when they choose an undergraduate college and this sensitivity is independent of other measures of quality.[8] Given that applicants favor rank over price more often than otherwise, it seems likely that in a few of these cases the higher rank school chosen would have been the lower rank school if it had reported accurate numbers.
For the students in those situations, the financial losses may have been large, due in part to the rankings themselves. Over the last two decades, in order to improve their position in USN&WR, law schools have attempted to attract students with high LSATs and UGPAs by dramatically increasing scholarship grants to the point that many students have been offered a scholarship of $45,000 per year or more. At the same time, many schools offer next to nothing to other students. The result is that any given student may receive wildly differing scholarship offers, and of course tuition itself also varies across schools. According to our preliminary analysis based on applicant reports, some students gave up tens of thousands of dollars in net tuition to buy into a school ranked higher by USN&WR. Twenty-five percent of the participants gave up more than $50,000 to attend a higher rank school, and nine percent sacrificed more than $100,000 to attend a school of higher rank. At the extreme, three percent gave up $20,000 per rank place to go to a law school that USN&WR said was better. Perhaps law schools and the responsible employees should be liable for the direct financial losses of students that acted in reliance on their misrepresentations.[9] An award of damages would shift losses from the deceived students to law schools and their employees, creating an additional disincentive for lying.
When the false number is a published employment rate, a more direct argument might be made that the inaccurate number misled a student. About five percent of the matriculants in our study chose to attend the school with the highest reported employment rate over a law school that was less expensive or higher ranked. Similarly, eight percent of the students in the Kaplan survey said that employment rate was the most important factor, and others respondents probably also considered it important. Perhaps some of these students paid extra to attend a school with a higher employment rate when in fact the school had a lower rate than a school the student chose not to attend.[10] If so, they might deserve compensation for acting to their detriment in reliance on a fabricated employment figure. But it will be hard for them to show damages. The choice of school often makes no big difference to subsequent employment. Some students obtain jobs and are none the worse for having attended a school with a lower employment rate. Some students do not find jobs for a while, but would not have done so after attending the other school either. The students harmed, of course, are those in the middle, who failed to find jobs, but who would have landed jobs if they had gone to the school with the higher true employment rate. This must have occurred at least a few times, but it is hard to prove in any individual case. Proof is especially difficult because employment rates are positively correlated with LSAT medians and thus the school with higher employment would generally also have a more competitive classroom environment for students in it. For that reason, the students who did not obtain employment will be in the difficult position of showing that they would not have ended up lower in the class at the school with higher employment. To put it another way, it is not clear that employment prospects for any given student improve by attending a school with a higher employment rate.
Students may have suffered another injury, however, from misleading employment numbers. As in the case of inaccurate LSAT and UGPA medians, students may have given up scholarship money to attend a school that looks like it has a better employment rate. This loss from paying a higher price for purportedly higher employment odds is easily quantified for those students who can show that they chose their school based on employment numbers. The hard part is showing that they did in fact choose based upon published employment figures. However, if they can show that they turned down a school with higher rank and lower cost for a school with higher published (but not actual) employment, they should have a claim for damages in the amount of the difference in net tuition.
So far, the discussion has been about schools harming students by reporting inaccurate numbers to the ABA, where the discrepancies end up making a difference to student choice, either on the basis of the numbers themselves or on the basis of USN&WR rank.[11] Next, consider the harm done when nearly all schools reported misleading numbers, as the ABA instructed them to do by defining graduates as employed if they had any sort of full-time job, even if it was wholly unrelated to the training received in law school. It is not clear whether any law schools gained a ranking advantage from the ABA’s definition of employment. The reporting system was defective, but all schools were evaluated on that same defective system.[12] As long as employment as defined by the ABA correlated highly with the kind of employment that students cared about, the fact that ABA-defined employment was not law-related employment had no effect on the rankings and little effect on student choice among law schools. If the correlation was insufficient and some schools were ranked too high as a result, the harms discussed above might obtain, but at least some of the blame for that should be placed on the ABA.
Even if no school’s rank was changed by the ABA’s reporting rules, the numbers reported under those rules may have done some harm. Which law school to attend was not the only important choice the applicants faced. They also had to decide whether to go to law school at all. By inflating the employment numbers, the ABA reporting requirements probably led some students to go to law school who otherwise would not have attended. Assuming that some students were enticed to law school by the misleading employment numbers, were they harmed? That is not easy to determine. Of course, they expended time and effort, and money too; law school does impose costs. The question is whether the outcome is worth those costs. A draft of a study presented at the 2013 meeting of the American Law and Economics Association indicates that law school is not a bad deal for the majority of law students. Michael Simkovic and Frank McIntyre estimated that the mean pre-tax lifetime value of a law degree is in the neighborhood of one million dollars.[13] Even at the 25th percentile, the earnings attributable to the law degree justified the expense of law school, compared to not going to law school. They also found that the law degree premium has varied over the years, and that the current premium is within historical norms. It is important to note that the study did not address the cost of forgoing other graduate educational opportunities, and had limited controls for ability. Nevertheless, the study casts a skeptical eye on the claim that law school pays off only for those attending the top 14 schools.
It is possible that for most students law school was not a waste of their money or time, even if they were drawn to school by overly optimistic employment numbers. But it is also worth considering whether inflated employment numbers did in fact cause over-attendance at law schools. In our study, across all participants, Broughman and I did not find that employment numbers had a substantial effect on choice of law school. One might think that this would mean that employment figures could not have drawn many to law school, but that does not follow. Students could pay attention to employment percentages when choosing whether to go to law school but then pay no attention to employment in choosing which law school. For a number of years, many schools published nine-month employment rates above 90 percent. A potential student might not care about the difference between 91 and 94 percent employment, but might be drawn to law training by the fact that both numbers are in the nineties. In addition, there is a group of students that might have cared about employment numbers in both contexts, whether to attend law school and which school to attend. Students with low LSAT or UGPA numbers are often denied admission by schools of high rank. Broughman and I found that students choosing between schools of lower rank were less sensitive to rank and more sensitive to employment rate than students choosing between schools of higher rank. The students choosing between schools of lower rank might also be the students most easily dissuaded from going to law school at all. So, it is possible that published employment numbers made a difference to that decision.
Were large numbers of students influenced in this way? Each of the lines in the two figures shows a change over time, compared to the baseline in 1985. The wavy line is the number of applicants to law schools in the US. Why does it fluctuate so dramatically? The supply of potential applicants to law school does not explain it. From Figure 1, we see that the number of BA degrees conferred by American schools each year has increased steadily, with essentially none of the variation seen in the number of applicants. The correlation between JD applicants and BA degrees from 1985 to 2012 is .07, and from 1999 to 2012 is -.14. Thus, since 1999, the number of actual JD applicants has not tracked the number of potential American applicants. Switching attention from the potential supply of students to the demand for law graduates, note from Figure 1 that the total population has increased fairly steadily, which ought to have increased demand for legal services, but the number of applicants has not increased in the same way. The correlation between JD applicants and US population from 1985 to 2012 is .10, and from 1999 to 2012 is -.03. Of more immediate relevance, observe from Figure 2 that employment rates for law school graduates have a varying relationship with applications to law school depending on the time period chosen. The correlation between application rate and employment rate from 1985 to 2012 is -.37, and from 1995 to 2012 is essentially zero. However, if we limit our view to what has happened since 1999, the correlation from 1999 to 2012 is .28. Of course employment rates only tell a part of the story, and potential applicants to law school should care about salary as well. According to Simkovic and McIntyre, however, the premium to be gained from a law degree is about the same in 2011 as it was in 2006, 2001, and 1996,[14] so the variation in applicants over time seems not to be closely tethered to the potential value of a JD degree in the market.
At the present time, it is unclear how much weight applicants place on various factors when they make their choices between law schools. Underlying that uncertainty is a deeper uncertainty about the value of a law school education. We do not know how much harm a student suffers by going to one law school instead of attending another, or by pursuing law instead of some other profession. But those uncertainties provide no excuse for the failure of law schools to present accurate information to applicants and the public, i.e., to paint a fair picture of themselves. Justice and incentives for accurate reporting would be served by awarding students compensation for the direct financial losses they have suffered as a result of a law school’s publication of inaccurate information.
Preferred Citation Format: Jeffrey Evans Stake, Improving Law School “Transparency”, 5 Neb. L. Rev. Bull. 9 (2013), http://lawreviewbulletin.unl.edu/?p=1120 .
FOOTNOTES
0. Robert A. Lucas Chair of Law, Indiana University Maurer School of Law. I thank Brian Broughman, Eric Rasmusen, and Michael Alexeev for helpful comments. And I thank Ben Trachtenberg for inviting me to comment on this important issue. ↑
1. See Ben Trachtenberg, Law School Marketing and Legal Ethics, 81 Neb. L. Rev. 866 (2013).↑
2. I doubt that the Illinois drop in peer assessment can be explained purely as a matter of the actual quality of the University of Illinois College of Law as a research or teaching organization. However, information regarding the Law School Admission Test (“LSAT”) is probably a component of peer evaluations. Michael Alexeev and I have found that peer scores seem to respond to changes in LSAT’s. See Jeffrey Evans Stake & Michael Alexeev, Who Responds to U.S. News & World Report’s Law School Rankings? (Ind. Univ. Mauer Sch. of Law Legal Studies Res. Paper Series, Research Paper No. 55), available at http://ssrn.com/abstract=913427. The median LSAT for Illinois was 167 (tied for 16th with 7 other schools) in 2012, and 163 in 2013 (tied for 38th with 8 other schools). The peer assessment for Illinois was 3.5 (tied for 22nd) in 2012, and 3.1 in 2013 (tied for 39th). (The years in this case are USN&WR years, which are a year ahead of the year of publication.) Since the peer rank did not drop as much as the LSAT median rank, these numbers are ambiguous as to whether peers punished Illinois or merely considered LSAT numbers to be that important. (I am not suggesting that, in this case, the peers responded to the LSAT information published in USN&WR because they do not publish the medians and because the peer assessments dropped before USN&WR published the new LSAT numbers. If peers were responding to the change in LSAT’s, they would have to have been responding to other reports of the degree of cheating).↑
3. Trachtenberg, supra note 2, at 920.↑
4. I am writing here of the facts presented to the ABA. I am less confident about law school honesty in other contexts. For example, a number of law schools have enticed students with renewable scholarships without telling the students that it was impossible for all of them to do well enough to renew their scholarships. This is, in my view, an unethical omission.↑
5. A defendant school might argue that the student got what he paid for, namely rank, and not the qualities that rank is supposed to summarize. However, the student might be able to convince the finder of fact that he was attempting to buy the quality indicated by rank, not mere rank itself.↑
6. Brian Broughman & Jeffrey Evans Stake, Law School Tuition: How Much Does Price Affect Choice of School? (work-in-progress as of July 22, 2013) (available soon on SSRN). Our initial draft is based on student- reported data presented on LawSchoolNumbers.com for students matriculating between 2006 and 2012. At this stage, our findings are only preliminary because we intend to extend the database to include entries from the applicants in 2013.↑
7. Press Release, Kaplan Test Prep, Kaplan Test Prep Survey: Despite an Uncertain Employment Landscape, Law School Applicants Still Consider School Rankings Far More Important than Job Placement Rates When Deciding Where to Apply (June 19, 2012) (available at http://press.kaptest.com/press-releases/kaplan-test-prep-survey-despite-an-uncertain-employment-landscape-law-school-applicants-still-consider-school-rankings-far-more-important-than-job-placement-rates-when-deciding-where-to-apply).↑
8. See Amanda Griffith & Kevin Rask, The Influence of the U.S. News and World Report Collegiate Rankings on the Matriculation Decision of High-Ability Students: 1995-2003, 26 Econ. of Ed. Rev. (Issue 2) 244-255 (2007). Their regression included variables for student-faculty ratio and expenditures per student, and fixed effects for the schools themselves.↑
9. A defendant school might argue that the scholarship offer that the applicant declined would have been lower if that school had not had to compete with the defendant, so the loss to the student was less. Perhaps that argument should be ignored on principle. But even if it is not, it may be possible for a student who gave up a scholarship to find out from the school that offered lower tuition how much the net tuition would have been if the student had not had the offer from the defendant school.↑
10. A student could similarly argue that he relied directly on a reported LSAT or UGPA statistic, as opposed to the USN&WR rank to which it contributed. A student might want to attend a school with low LSAT’s because the competition for first year grades would be easier, or because the closely-ranked school with lower numbers must have other, more-important, factors in its favor. Or a student might want to attend a school with high LSAT’s because it would be easier to learn from classmates, or because employers might assume the student had a higher LSAT, or because the LSAT numbers reflect student decisions, which is a form of crowd-sourced information on the quality of law schools. It is not clear, however, that many students could make a convincing case that they made their decision on the basis of the median LSAT or UGPA, as opposed to the rank of the school, or its reported employment rate. There is a lot of buzz on the web when USN&WR publishes and new ranking and the vast majority of it relates to the ranks, not to the LSAT’s reported by USN&WR at the same time.↑
11. It may be the case that students at other law schools are harmed when a school gains a ranking advantage from reporting inaccurate numbers. The rank of their school might sink a bit, but it seems unlikely that many suffer substantial financial harm.↑
12. It should be noted that the reporting requirements were not necessarily misleading when they were adopted by the ABA for the purpose of accreditation.↑
13. Michael Simkovic & Frank McIntyre, The Economic Value of a Law Degree Presented at the 2013 Annual Meeting of the American Law and Economics Association (April 23, 2013), available at http://ssrn.com/abstract=2270175.↑
14. Id., at slide 39, Fig. 5. The premium reached lower points around 1999 and 2002 and a higher point around 2007.↑
Response Series: Ben Trachtenberg’s “Law School Marketing and Legal Ethics”
mrick101
Issue 91 of the Nebraska Law Review features an article by Professor Ben Trachtenberg of the University of Missouri School of Law which details a recent and controversial topic within legal education: the release of misleading employment statistics by law school administrators. In Law School Marketing and Legal Ethics,[1] Professor Trachtenberg advocates a novel approach to combating this deceitful practice through the use of professional liability under Model Rule 8.4(c). As part of a special series of responses from other notable academics in the area, the Nebraska Law Review Bulletin is proud to publish the thoughts of Kyle McEntee of Law School Transparency and Professor Jeffrey Stake of Indiana University’s Mauer School of Law. In their responses, each author will detail his respective take on professional liability as advocated by Mr. Trachtenberg and offer an alternate approaches to combating the release of misleading employment statistics by law schools. Finally, Professor Trachtenberg will again offer his thoughts in a final response. Due to the unique nature of this series, the usual emphasis on word length for Bulletin submissions is downplayed in order to best retain the full substance of the contributing authors’ response.
FOOTNOTES
1. Ben Trachtenberg, Law School Marketing and Legal Ethics, 91 NEB. L. REV. 866 (2013).↑
Bull****!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause
rgerlach
Colin Miller [0]
In State v. Kibbee, Eddie Kibbee brought an Ex Post Facto Clause challenge to his convictions for first-degree sexual assault and felony child abuse.[1] Kibbee was convicted for sexual acts committed against a sixteen year-old,[2] and if his ex post facto claim had been that the legislature rose the age of consent from sixteen to seventeen after his alleged crimes, he would have had a viable claim. He also would have had a viable claim if his conduct was classified as second-degree sexual assault at the time of his alleged crimes or if he was sentenced to fifty years’ incarceration, but the maximum punishment for his crimes was only forty years at the time of commission.
Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed”[3] by Congress while Article I, section 10 places a similar limitation of state legislatures.[4] In its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with these ex post facto clauses:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.[5]
The three hypothetical laws referenced above are the first three types of laws recognized in Calder. The law raising the age of consent criminalized conduct (sexual intercourse with a sixteen year-old) that was innocent when done. The law turning behavior that was previously second-degree sexual assault into first-degree sexual assault aggravated an existing crime, and the law allowing for fifty years’ incarceration inflicted a greater punishment than the laws in place at the time of the crime.
Kibbee did not, however, raise any of the above objections. Instead, his claim was that the trial court violated the state ex post facto clause by retroactively applying a rule of evidence that was not codified at the time of his alleged misconduct.[6] That rule, Nebraska Rule of Evidence 414(1) provides that
In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.[7]
Nebraska Rule of Evidence 414(1) is thus similar to Federal Rules of Evidence 413 and 414, which allow for the admission of prior acts of sexual assault and child molestation by criminal defendants.[8] Kibbee claimed that Rule 414(1) was clearly a law that alters the legal rules of evidence, meaning that it was the fourth type of law that cannot be applied retroactively consistent with the ex post facto clause. Like every defendant before him challenging the retroactive application of Federal Rules of Evidence 413 and 414 as well as state counterparts, Kibbee was unsuccessful.[9] This essay argues that every court that has considered the issue is wrong and that these rules should be classified as the fourth type of law that cannot be applied retroactively.
Carmell v. Texas, Rules of Evidence, and the Ex Post Facto Clause
In Carmell v. Texas, Scott Carmell appealed from his convictions for various sexual crimes that he allegedly committed against his stepdaughter.[10] The only evidence supporting some of those convictions was the stepdaughter’s testimony, and, at the time of Carmell’s offenses, Texas had a so-called “outcry or corroboration” requirement.[11] Under this requirement, a defendant could not be convicted of certain sex crimes unless, inter alia, the victim’s testimony was corroborated by other evidence.[12] Texas amended this “outcry or corroboration” requirement after Carmell’s alleged crimes but before his trial.[13] Under the amended requirement, the stepdaughter’s testimony did not have to be corroborated for the jury to convict Carmell, and, after he was indeed convicted, Carmell brought a successful ex post facto clause challenge.[14] In granting Carmell’s challenge, the Supreme Court found that the “outcry or corroboration” requirement fit comfortably in the fourth Calder category because “[a] law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof….”[15]
In reaching this conclusion, however, the Court indicated in a footnote that “[o]rdinary rules of evidence…do not violate the Clause.”[16] Instead, “[r]ules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in a given case.”[17] Moreover and “[m]ore crucially, such rules, by simply permitting evidence to be permitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.”[18]
Given this language, it is easy to understand the opinion of the Supreme Court of Nebraska in Kibbee and similar decisions by courts in states across the country. In Kibbee, the court cited to the language of the above Carmell footnote and found that the retroactive application of Nebraska Rule of Evidence 414(1) did not violate the ex post facto clause because it “is an ordinary rule of evidence which relates to admissibility and simply provides that evidence of prior sexual misconduct may be admitted to prove propensity.”[19]
A Rule Less Ordinary: Rule 414(1)’s Pro-Prosecution Approach
Contrary to the Court’s conclusion, Nebraska Rule of Evidence 414(1), like Federal Rules of Evidence 413 and 414, is not an ordinary rule of evidence. Federal Rule of Evidence 404(b)(1) states that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”[20]
Congress, however, was dissatisfied with the low conviction rates in sexual assault and child molestation cases and decided to float new rules of evidence in the Violent Crime Control and Law Enforcement Act of 1994.[21] These rules would have been contrary to the general propensity character proscription and allowed for the admission of evidence of a defendant’s prior crimes, wrongs, or acts to prove, “once, a rapist, always a rapist,” “once a child molester, always a child molester,” or any other relevant matter. These new rules were sent for public comment to judges, lawyers, law professors, and legal organizations, with the “overwhelming majority” of respondents opposing the new rules.[22] Given this response, Congress decided to bypass the typical rulemaking process to enact what are now Federal Rules of Evidence 413-415 (with Rule 415 applying in civil cases).[23] A number of states followed suit in the ensuing years, with Nebraska joining their ranks in 2010.[24]
Thus, Federal Rules of Evidence 413-415 are not ordinary rules of evidence because Congress circumvented the formal rulemaking process to enact them. This feature makes these Rules irregular but not singular. Instead, Congress also bypassed the rulemaking process to enact Federal Rule of Evidence 704(b) in the wake of the assassination attempt on Ronald Reagan.[25] In response to the public outrage that stemmed from the jury finding John Hinckley not guilty by reason of insanity, Congress pushed through Federal Rule of Evidence 704(b), which states that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.[26]
As this language makes clear, while the passage of Rule 704(b) was extraordinary, the operation of the rule is quite ordinary in the sense that it may benefit either the State or the defendant in a given case. The Rule prevents a criminal defendant from calling an expert to testify that his mental disease or defect prevented him from appreciating the wrongfulness of his actions, but it also precludes the prosecution from presenting an expert to conclude that the defendant was sane. The Rule prevents a criminal defendant from calling an expert witness to testify that the defendant lacked the mens rea of the crime charged, but it also precludes the prosecution from presenting an expert to conclude that he possessed the requisite mens rea, which has rendered inadmissible testimony that police officers “routinely offered” prior to adoption of the Rule.[27]
Conversely, Federal Rules of Evidence 413 and 414 solely benefit the State. The Rules permit the prosecution to present evidence of the defendant’s prior acts of sexual assault and child molestation for any relevant purpose while vesting no similar right in the defendant’s hands. This was a point partially recognized by the dissent in Carmell. The Carmell dissent observed that the logical extreme of the majority’s reasoning was that Rule 413, as a rule that solely benefits the prosecution, “would be ex post facto as applied to offenses committed before its enactment.”[28] In reaching this conclusion, however, the dissent treated Rule 413 like it was not aberrational and cited Federal Rule of Evidence 412(b)(1)(B) as another Rule that could only benefit one party: the criminal defendant.[29]
Rule 412(b)(1)(B) is an exception to Federal Rule of Evidence 412(a), the Rape Shield Rule, which generally prevents a defendant from presenting evidence of the alleged victim’s other sexual behavior or sexual predisposition in a civil or criminal proceeding involving alleged sexual misconduct.[30] Rule 412(b)(1)(B) provides an exception in criminal cases for “evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor….”[31] As the italicized language makes clear, the Carmell dissent was clearly wrong in characterizing Rule 412(b)(1)(B) as a Rule that solely benefits the defendant because the prosecution could use it to present evidence that the defendant and victim used to engage in consensual sexual acts until, say, an act of violence changed the relationship, which is why the sexual act at issue was nonconsensual. Indeed, Rule 412(b)(1)(B) opens the door for the prosecution to present such evidence for any purpose while defendant may only use the Rule to prove consent.
Even if this were not the case, Rule 412(b)(b)(1)(B) is merely an exception to Rule 412(a), which is designed to prevent defendants from presenting sexual propensity character evidence regarding their victims. In this sense, the Rule 412 as a whole is no different from any number of other Federal Rules of Evidence, such as Rules 407-411, which each deem a certain category of evidence per se inadmissible subject to certain exceptions.[32]
In this regard, Federal Rule of Evidence 412, viewed as a whole, is similar to every other Federal Rule of Evidence, save three or four, in that it could be used to benefit either side in a given case. As noted, three of the aberrations are Federal Rules of Evidence 413-415. The other anomaly is Federal Rule of Evidence 404(a)(2)(C), which allows the prosecution to present evidence of the victim’s character for peacefulness when a homicide defendant claims that the victim was the first aggressor.[33] The rest of Rule 404(a)(2), however, makes clear that, subject to the limitations of Rule 412, a defendant in any type of criminal trial can always present propensity character evidence concerning the victim (as well as himself).[34]
Conversely, under Rules 413 and 414, a prosecutor can present evidence of the defendant’s other acts of sexual assault and child molestation while Rule 412 generally precludes a defendant from presenting evidence of his victim’s other sexual acts. Thus, Rules 413 and 414 (and 415 in the civil context) are an island unto themselves. They are not ordinary rules of evidence, and they are extraordinary in precisely the way that subjects them to Ex Post Facto scrutiny according to both the majority and dissenting opinions in Carmell. So, why have courts categorically upheld these Rules and state counterparts against ex post facto challenges?
Presumed Innocent: The Presumption of Innocence and the Propensity Character Evidence Proscription
The Carmell majority regarded most rules of evidence as “ordinary” in a second regard in that they do not at all subvert the presumption of innocence. As support for its conclusion in Kibbee, the Supreme Court of Nebraska characterized Nebraska Rule of Evidence 414(1) as one of these ordinary rules.[35] But once again, Federal Rules of Evidence 413-414 and state counterparts are the one anomaly in a constellation of evidentiary rules that otherwise do not subvert the presumption of innocence.
On numerous occasions, courts have noted that Federal Rule of Evidence 404(b), the propensity character evidence proscription, is in place to maintain the presumption of innocence.[36] If the prosecution were able to present evidence of a defendant’s prior robberies to prove, “once a robber, always a robber,” evidence of a defendant’s prior arsons to prove, “once an arsonist, always an arsonist,” or evidence of a defendant’s prior rapes to prove, “once a rapist, always a rapist,” the presumption of innocence would be eviscerated. As the United States Court of Appeals for the Third Circuit cautioned in Government of the Virgin Islands v. Toto, when evidence of a defendant’s prior crimes reaches the jury, “it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence” because “[a] drop of ink cannot be removed from a glass of milk.”[37] Therefore, Federal Rules of Evidence 413 and 414 do subvert the presumption of innocence unless Congress is asking courts to assume the impossible.
The point, though, is that Congress clearly did not ask courts to assume the impossible. Instead, subverting the presumption of innocence was the goal of Federal Rules of Evidence 413 and 414 and not merely their result. As noted, Congress proposed Rules 413-414 because it was dissatisfied with the conviction rates in sexual assault and child molestation cases and wanted prosecutors to be able to use the new rules as a tool to increase these rates of conviction.[38]
This is the crux of the argument for why Federal Rules of Evidence 413, 414, and state counterparts should be treated as the fourth type of law that cannot be applied retroactively consistent with the ex post facto clause. These rules are not ordinary rules of evidence that can favor either side, nor are they rules that the prosecution can only use to prove a discrete part of its case. Rather, the rules are a naked attempt by Congress (and now state legislatures) to allow prosecutors to achieve convictions through sexual propensity character evidence when they would otherwise be unable to prove guilt beyond a reasonable doubt.
As noted, both Federal Rule of Evidence 413 and Nebraska Rule of Evidence 414(1) allow a prosecutor to present evidence of a defendant’s act of sexual assault “for its bearing on any matter to which it is relevant,” and this “any purpose” language appears in Rule 414 as well.[39] Therefore, under these rules, the jury could use evidence of a defendant’s prior sex crime(s) as the sole evidence to find that the defendant satisfied both the actus reus and mens rea of the sexual crime charged. Moreover, such a result would not be surprising given courts’ extreme reluctance to use Federal Rule of Evidence 403 and state counterparts to exclude or circumscribe the use of sexual propensity character evidence.[40] Federal Rules of Evidence 413 and 414 and state counterparts thus squarely qualify as “law[s] that alter[] the legal rules of evidence, and receive[] less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. As such they cannot be applied retroactively consistent with the ex post facto clause.
Preferred Citation Format: Colin Miller, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, 4 Neb. L. Rev. Bull. 3 (2012), http://lawreviewbulletin.unl.edu/?p=1060 .
FOOTNOTES
0. Associate Professor, University of South Carolina School of Law, Blog Editor, EvidenceProf Blog: http://lawprofessors.typepad.com/evidenceprof/. I would like to thank Cassidy Evans for her research assistance. ↑
1. State v. Kibbee, 815 N.W.2d 872, 879 (Neb. 2012). ↑
2. See id. ↑
3. U.S. Const., art. I , § 9. ↑
4. U.S. Const., art. I, § 10. ↑
5. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). ↑
6. Kibbee, 815 N.W.2d 872, 883. ↑
7. Neb.Rev.Stat. § 27–414. ↑
8. See Fed.R.Evid. 413 & 414. ↑
9. See Kibbee, 815 N.W.2d at 86-90 (cataloging cases across the country upholding such rules against Ex Post Facto Clause challenges). ↑
10. Carmell v. Texas, 529 U.S. 513 (2000). ↑
11. Id. at 517. ↑
12. See id. ↑
13. See id. at 518. ↑
14. See id. at 532. ↑
15. Id. ↑
16. Id. at 1633 n.22. ↑
17. Id. ↑
18. Id. ↑
19. State v. Kibbee, , 284 Neb. 72, 90 ,815 N.W.2d 872, 888 ↑
20. Fed.R.Evid. 404(b). ↑
21. Report of the Attorney General on the Admission of Criminal Histories at Trial, 22 MICH. J. L. REFORM 707, 723-27 (1989). ↑
22. See Federal Rule of Evidence 413 advisory committee’s note. ↑
23. See Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 CORNELL L. REV. 1487, 1488 n.1 (2005). ↑
24. State v. Kibbee, 284 Neb. 72, 81, 815 N.W.2d 872, 883. ↑
25. See Daniel J. Capra, A Recipe for Confusion: Congress and the Federal Rules of Evidence, 55 U. MIAMI L. REV. 691, 691-93 (2001). ↑
26. Fed.R.Evid. 704(b). ↑
27. Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 Cath. U. L. Rev. 153, 191 (2008). ↑
28. Carmell v. Texas, 529 U.S. 513, 563 (2000) (Ginsburg, J., dissenting). ↑
29. See id. ↑
30. Fed.R.Evid. 412(a). ↑
31. Fed.R.Evid. 412(b)(1)(B) (emphasis added). ↑
32. See Fed.R.Evid. 407-411. ↑
33. Fed.R.Evid. 404(a)(2)(C). ↑
34. See Fed.R.Evid. 404(a)(2)(A)&(B). ↑
35. See State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872, 888. ↑
36. See, e.g., United States v. Crowder, 141 F.3d 1202, 1212 (D.C. Cir. 1998). ↑
37. 529 F.2d 278, 283 (3rd Cir. 1976). ↑
38. See supra note 20 and accompanying text. ↑
39. See Fed.R.Evid. 413; Neb.R.Evid. 414(b). ↑
40. See Orenstein, supra note 22, at 1491 (noting that courts, and especially the Eighth Circuit, have rendered Rule 403 toothless and ineffectual in such cases). ↑
Keystone XL and Nebraska’s Judicial Supermajority Clause: A Brief Introduction
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Many are familiar with the Keystone XL due to the political controversy surrounding the pipeline. Of central relevance to Nebraska, it is difficult to open a newspaper, scroll through a Twitter feed, or discuss environmental issues without the topic rising to the forefront of conversation. However, what many people are unaware of is Nebraska’s judicial supermajority clause. This affects not only LB 1161, which changed the pipeline permitting process in Nebraska, but any state statute challenged on constitutional grounds. Kathleen Miller, J.D. Candidate, 2016, offers insight into this often forgotten area of particular peculiarity in Nebraska and its effect on Keystone XL. Katie’s article, may be found here and directly linked to from the Bulletin. The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor.
2015 Nebraska Law Review Write-On Competition
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This post contains materials for the 2015 University of Nebraska College of Law annual write-on competition.
This competition is open to UNL Law students who have completed their 1L year or are a transfer student, and have two (2) or more remaining (non-summer) semesters left. Further instructions are available in the attached materials.
If you have any questions, please contact Amy Peters, Research Editor.
Best of luck!
The Fifth Judge: Thompson v. Heineman and Nebraska’s Judicial Supermajority Clause
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The Fifth Judge:
Thompson v. Heineman and Nebraska’s Judicial Supermajority Clause
Kathleen Miller, University of Nebraska College of Law
J.D. Candidate, 2016
Introduction: History of the Case
When TransCanada proposed its Keystone XL route in 2008, it likely did not believe that the proposal would face much opposition. After all, TransCanada already had another pipeline running through Nebraska. The thought that the project would be at a standstill seven years later seemed unfathomable.
Things changed quickly. By 2011, the debate over the pipeline had surged to the forefront of the national stage, with Nebraska squarely in the middle of the controversy. Following a 2011 special session in which Nebraska legislators passed a series of bills dealing with the state’s pipeline permitting process, Nebraska passed an additional piece of legislation in the 2012 regular session, LB 1161. Whereas legislation passed during the 2011 special session required pipeline applicants to obtain approval from the Public Service Commission (“PSC”), LB 1161 allowed “major oil pipeline” carriers to bypass the PSC and receive approval from the governor to exercise eminent domain in the state.[1] Landowners challenged the law on the grounds that it was unconstitutional for a variety of reasons, including that it was an unlawful delegation of power to the governor. By the time Thompson v. Heineman[2] reached the Nebraska Supreme Court, it appeared that the case would definitively decide LB 1161’s fate.[3]
However, the manner in which the Court eventually decided Thompson did not resolve the constitutional issues surrounding LB 1161. Invoking a rarely used rule, four out of seven judges found LB 1161 unconstitutional, but vacated the entirety of the lower court’s decision due to Nebraska’s “judicial supermajority” or “five judges” clause. The requirement that five judges hold a law unconstitutional in order to strike it down is found in Neb. Const. art. V § 2:
The supreme court shall consist of seven judges, one of whom shall be the Chief Justice. A majority of the judges shall be necessary to constitute a quorum. A majority of the members sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges.[4]
In Thompson, only four judges decided that LB 1161 was unconstitutional – one judge short of the five needed to strike down the law.
Part I of this article discusses the history of the judicial supermajority clause in both Nebraska and other states. Part II of this article examines the effects of the supermajority clause on cases before the Nebraska Supreme Court and how the clause came into play in Thompson v. Heineman.
Part I: The Origins of the Judicial Supermajority Clause
Judicial supermajority clauses are extremely rare in American law, but are not a new idea. Several states have contemplated amending their constitutions to include a supermajority clause. Additionally, proposals to require the Supreme Court of the United States to have a “six-three” supermajority requirement occasionally arise from time to time.[5] However, only Ohio, North Dakota, and Nebraska have ever actually enacted a judicial supermajority. All three states adopted their supermajority requirements during the Progressive Era, all seemingly in response to the Supreme Court’s decision in Lochner v. New York or by populist sentiment.[6] Ohio adopted the requirement in 1912, North Dakota in 1919, and Nebraska in 1920. [7]
For Ohio, its 1912 Constitutional Convention was a clash of ideologies between conservative business interests seeking to change the tax system and Progressives trying to enact a series of reforms, including reform of the state’s complicated court system.[8] The Progressives were particularly upset that the Ohio Supreme Court had recently invalidated a series of laws passed by the Progressive movement, mainly dealing with workers rights.[9] Early on, one delegate proposed a provision which would require a unanimous decision by the Court to invalidate a statute.[10] The proposed provision was heavily debated, but eventually passed, requiring “all but one” of the judges of the Ohio Supreme Court to agree in order to invalidate a state law.[11] Yet, Ohio’s judicial supermajority clause was short-lived. By the 1960’s, issues with the “all but one” requirement were easily apparent.[12] Many of the problems were a result of Ohio’s unique court structure and whether the lower court had held the challenged law as constitutional or unconstitutional.[13] Of particular embarrassment, several statutes concerning limits on freedom of speech were found to be unconstitutional, but remained on the books due to the supermajority clause – only to be later overturned by the United States Supreme Court on First Amendment or other constitutional grounds.[14] The supermajority requirement was repealed on May 7, 1968, sparking almost no debate.[15] For Ohio, the judicial supermajority clause was a “well-intentioned experiment [that] was at best a noble failure, at worst a disaster that endured far too long.”[16]
North Dakota implemented its “four judges” supermajority requirement in 1919.[17] The amendment was proposed as part of an omnibus provision by the Nonpartisan League (“NPL”), which controlled the North Dakota House of Representatives.[18] Similar to concerns expressed by Ohio delegates, the proponents of North Dakota’s “four judges” clause worried that the state Supreme Court might undo hard-fought legislative reform. NPL “feared a Supreme Court, dominated by justices linked to its opponents, might invalidate important parts of its measures to aid farmers against business interests seen as antithetical.”[19] While the omnibus provision was defeated by the North Dakota Senate, the amendment survived when it was offered by non-NPL senators as an individual resolution.[20] The amendment passed during the general election in November 1918 and is still in place today.[21]
Similar to Ohio’ judicial supermajority clause, Nebraska’s clause resulted from a state constitutional convention. Facing a series of shortcomings within the Nebraska Constitution of 1875, the Legislature called for a constitutional convention in 1917.[22] Nine of the 336 proposals at the convention dealt with the powers of the state Supreme Court to declare acts of the legislature unconstitutional.[23] Two elements in play greatly influenced the adoption of the “five judge” requirement: the existence of the NPL (as in North Dakota) and the support of William Jennings Bryan. The NPL, a populist movement with strong support in the state at the time, fiercely advocated for a proposal which would prevent the state Supreme Court from invalidating a legislative measure on constitutional grounds at all.[24] Mindful of the public’s views, and worried about how the amendments might be received when they were put to a public vote in light of the “high nonpartisan sentiment”, the delegation compromised with the NPL and raised the required number of justices for a finding of unconstitutionality from a simple majority to the “five judges” requirement.[25] In addition to the NPL’s popularity, Bryan himself directly addressed the Nebraska Convention. Bryan’s remarks reflected both Ohio and North Dakota’s reasons for enacting a judicial supermajority requirement – restraining the judiciary’s power to conduct judicial review. In his remarks, Bryan stated:
The fundamental principle of popular government, whether coercive or co-operative, is that the people have a right to have what they want in government … Not that the people will make no mistakes, but that the people have a right to make their own mistakes … The supreme court only should have power to declare a law unconstitutional, and it only by three-fourths vote of the court. It is not fair to the legislators or to those who elect them – especially when we have referendum – to allow what they have declared to be the people’s will to be overthrown by a judge.[26]
When the five judge rule was presented to the public during a special election, only 77,586 voted on the proposal – compared to the presidential election turnout six weeks later of 382,653.[27] For Nebraska, “[t]he minority control of the supreme court under the five judge rule was definitely adopted by a distinct minority of the qualified voters within the state.”[28] There have been attempts to eliminate the five judges clause, including during the 1970 proceedings of the Nebraska Constitutional Revision Commission.[29] While the Commission could find “no good reason” to keep the provision, it was not repealed. [30]
Part II: The Judicial Supermajority Clause in Nebraska Courts
Following its adoption to the Nebraska Constitution, the judicial supermajority clause lay dormant for several decades. It was first used as a deciding factor in two 1968 cases – In re Cavitt[31] and DeBacker v. Brainard[32]. While occasionally mentioned in subsequent case law[33], the clause was not employed as the deciding factor in a case again until State ex rel. Spire v. Beermann[34] in 2000, and then not again until Thompson.
Effectively, the clause operates to protect legislation that would otherwise be found to be unconstitutional and allows that legislation to stand. In re Cavitt involved a state statute that required mental patients to be sterilized as a condition of being released from a state home.[35] While four judges found the law to be unconstitutional, the supermajority clause forced the Court to allow the statute to stand.[36] A similar situation arose in Brainard, in which only four judges found the Juvenile Court Act, which allowed juvenile offenders to be tried without a jury trial and applied a “preponderance of the evidence” standard instead of the traditional “beyond a reasonable doubt” standard, to be unconstitutional.[37] In State ex rel. Spire v. Beermann, the Nebraska Supreme Court considered the constitutionality of legislation which transferred Kearney State College into the University of Nebraska system.[38] While four judges determined that the legislation was unconstitutional, the Court upheld the statute based on the judicial supermajority requirement.[39]
The judicial supermajority clause was not used again as a determining factor in a case until Thompson v. Heineman. In Thompson, the plaintiffs sought to strike down LB 1161 as unconstitutional. Their first argument stemmed from the Act’s delegation of powers to normally possessed by the Public Service Commission to the Governor. As four judges of the court pointed out, the PSC constitutes a unique agency under Nebraska law – “an independent regulatory body for common carriers.”[40] Under Neb. Const. art. IV, § 20, “the powers and duties of [the PSC] shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law.”[41] In Thompson, four judges determined that the proposed KXL pipeline qualified as a “common carrier” and thus fell under the PSC’s powers, rendering LB 1161 unconstitutional.[42] The same four judges further found LB 1161 unconstitutional because it unlawfully delegated the power to grant eminent domain to private organizations by the governor, when only the legislature may grant eminent domain powers.[43]
With a simple majority of the bench, in any other case, before almost any other appellate court in the country, the plaintiffs would have won the day. Four out of seven judges found LB 1161 unconstitutional. However, the three remaining judges did not reach any conclusions on the constitutionality of LB 1161, finding instead that the plaintiffs’ grounds for standing under a “resident taxpayer” rule insufficient.[44] Due to Nebraska’s judicial supermajority clause, LB 1161 was allowed to remain on the books as good law while the case was remanded back to the district court.
The Court was not wrong in hinging its decision on the provision – the majority only had four judges, and the court is constitutionally bound to have five concurring judges in order to strike down a state law as unconstitutional. Still, perhaps more vividly than other cases before it, Thompson highlights the negative impacts of a judicial supermajority clause. First, while the Thompson decision did not conclusively rule on the constitutionality of LB 1161, every judge reaching the merits of the case determined that LB 1161 is unconstitutional.[45] Effectively, the clause allows LB 1161 to remain good law in the state, not because any judge reaching the merits of the case determined that it passed constitutional muster, but only because the plaintiffs failed to convince a fifth judge on the court to find the law unconstitutional. Arguably, this tips the balance of power between the state branches of government too far in favor of the legislature. Nebraska’s unique unicameral legislature already consolidates power into one house.[46] Without a second legislative body, Nebraska’s legislature is not confined by the traditional “checks and balances” of a two-house legislature, resulting in fewer hurdles for legislation to pass before being enacted into state law.[47] In light of this structure, an “independent and unhampered judiciary” seems even more critical to preserve the balance of power between the three branches.[48] Instead, the judicial supermajority clause allows the legislature to insulate itself from being held accountable when it passes laws that are arguably unconstitutional. Second, in the case of Thompson, the clause works against judicial efficiency – by blocking the Court from conclusively ruling on the constitutionality of LB 1161, further litigation is required to definitely resolve the constitutional issues. On a larger scale, this in turn has led to the controversy surrounding the Keystone XL pipeline to be drawn out even further.
Conclusion
At the end of the day, the Court’s decision to invoke the supermajority clause did not conclusively spell disaster for landowners or a clear victory for TransCanada. The Thompson case remained very much alive after it was vacated, and could work its way back up to the Nebraska Supreme Court. Meanwhile, two other cases challenging LB 1161, one in York County and the other in Holt County, are currently proceeding based on traditional standing after TransCanada began eminent domain proceedings against landowners in those counties.[49] The constitutionality of LB 1161 will likely come before the Court again soon.
However, the merits of Nebraska’s judicial supermajority clause remains an open question. On one hand, the measure strengthens the separation of powers in the state by acting as a check on the judiciary’s power of judicial review. Nevertheless, it prevents very real constitutional issues from being definitively resolved and allows potentially unconstitutional laws to continue to exist based on a mere technicality.[50] Further, it hinders judicial efficiency and arguably tips the balance of powers too far in favor of the legislature.
For now, the judicial supermajority clause remains alive and well in Nebraska. As Thompson demonstrates, litigants raising constitutional issues against state laws in Nebraska should remain vigilant about the potential effects the clause may have on their case. Should they ever reach the Nebraska Supreme Court, they will have to focus on more than a simple majority of the bench – they will have to persuade a fifth judge in order to prevail.
Download article here (.pdf) Preferred Citation Format: Kathleen Miller, The Fifth Judge: Thompson v. Heineman and Nebraska’s Judicial Supermajority Clause, 6 Neb. L. Rev. Bull. 1 (2015).[1] Thompson v. Heineman, 289 Neb. 798, 802, 857 N.W.2d 731, 240 (2015).
[2] Id.
[3] Joe Duggan, Ruling on Keystone XL pipeline could come down to two key points, Omaha World Herald (Sep. 2, 2014), http://www.omaha.com/news/nebraska/ruling-on-keystone-xl-pipeline-could-come-down-to-two/article_8b64c55d-21de-5bfa-a246-4e4fe5002a66.html.
[4] Neb. Const. art. V § 2.
[5] Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893 (2003).
[6] Sandra Zellmer, Keystone XL Pipeline Route through Nebraska Upheld on Constitutional Technicality – for Now, CPRBlog (Jan. 15, 2015), http://www.progressivereform.org/CPRBlog.cfm?idBlog=EEC8FFCB-942B-4764-55172CC3E973EEF8.
[7] Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rules: Lessons from the Past, 78 Ind. L. J. 73, 90-94 (2003).
[8] Jonathan L. Entin, Judicial Supermajorities and the Validity of Statutes: How Mapp Became a Fourth Amendment Landmark Instead of a First Amendment Footnote, 52 Case W. Res. L. Rev. 441, 443 (2001).
[9] Id. at 443-44.
[10] Id. at 445.
[11] Id. at 451.
[12] Id. at 464.
[13] The Ohio supermajority clause applied to cases of original jurisdiction and cases from one of the state’s lower courts of appeal if that court had upheld the challenged law as constitutional. If the lower court found the law to be unconstitutional, only a simple majority of the Ohio Supreme Court was needed to affirm. Id. at 455.
[14] Id. at 463. (citing State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387 (1960) overruled by Mapp v. Ohio, 367 U.S. 643 (1961); Superior Films, Inc. v Dep’t of Educ., 159 Ohio St. 315, 112 N.E.2d 311 (1953), overruled by Superior Films, Inc. v. Dep’t of Educ., 346 U.S. 587 (1954) (per curiam)).
[15] Entin, supra note 8, at 465-66.
[16] Id. at 466.
[17] Herbert L. Meschke and Ted Smith, The North Dakota Supreme Court: A Century of Advances, 76 N.D. L. Rev. 217, 248 (2000).
[18] Id. at 247.
[19] Id.
[20] Id. at 248.
[21] Id.
[22] Paul W. Madgett, Comment, The “Five Judge” Rule in Nebraska, 2 Creighton L. Rev. 329, 330 (1969).
[23] Id. at 330.
[24] William Jay Riley, Comment, To Require that a Majority of the Supreme Court Determine the Outcome of Any Case Before It, 50 Neb. L. Rev. 622, 625 (1971).
[25] Id. at 626
[26] Id. (citing 1 Proceedings of the Constitutional Convention 1919-20, 307, 319 (1920)).
[27] Id. at 627.
[28] Id.
[29] Id. at 647.
[30] Id. at 622-23.
[31] In re Cavitt, 182 Neb. 712, 157 N.W.2d 171 (1968).
[32] DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968).
[33] See State ex rel. Belker v. Bd. of Educ. Lands and Funds, 185 Neb. 270, 175 N.W.2d 63 (1970) (dismissed on jurisdictional grounds); State v. Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005) (decided on other grounds).
[34] State v. Beermann, 235 Neb. 384, 455 N.W.2d 749 (1990).
[35] In re Cavitt, 182 Neb. at 714-15, 157 N.W.2d at 174.
[36] Id. at 726-27, 157 N.W.2d at 181 (Newton, J. dissenting).
[37] DeBacker v. Brainard, 183 Neb. 461, 461, 161 N.W.2d 508, 509 (1968).
[38] Beermann, 235 Neb. at 386, 455 N.W.2d at 750.
[39] Id. at 385.
[40] Thompson v. Heineman, 289 Neb. at 831, 857 N.W.2d at 757.
[41] Neb. Const. art. IV, § 20.
[42] Thompson, 289 Neb. at 835, 857 N.W.2d at 759.
[43] Id. at 845, 857 N.W.2d at 765.
[44] Id. at 859, 857 N.W.2d at 773-74 (Heavican, C.J.) (dissenting in part, and in part concurring in the result).
[45] In addition to the four judges in Thompson, the trial court judge also found LB 1161 unconstitutional. See Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014).
[46] Riley, supra note 24, at 636.
[47] Id.
[48] Id.
[49] Joe Duggan, Nebraska opponents of Keystone XL pipeline reignite legal fight over state routing law, Omaha World Herald, Jan. 17, 2015, http://www.omaha.com/news/nebraska/nebraska-opponents-of-keystone-xl-pipeline-reignite-legal-fight-over/article_e9729cfe-af5c-5bf4-8774-45b157adcaa3.html.
[50] Zellmer, supra note 6.
Disability Discrimination in the Form of Ad Hoc Examinations: A Brief Introduction
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Nearly every Employment Law casebook, course, and lecture includes at least some mention of the Americans with Disabilities Act. In addition to the ADA, the Nebraska Fair Employment Practice Act prohibits discrimination in the workplace. Under either Act, an employer-mandated medical examination of an individual with disabilities is presumed to be unlawful discrimination. Thomas E. Simmons, an associate professor at the University of South Dakota School of Law, examines the business necessity defense available to rebut this presumption as articulated by the Nebraska Supreme Court in Arens v. NEBCO, Inc. Professor Simmons’ article may be found here and directly linked to from the Bulletin. The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor.
The Nebraska Law Review Joins Twitter
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In an effort to increase its online presence, the Nebraska Law Review, has joined the twitter community. Please follow the Review @NebLRev for helpful information and updates regarding Nebraska and 8th Circuit issues.
Any comments or questions may be directed to Briana Hildebrand, the Online Editor.
2014 Nebraska Law Review Write-On Competition
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This post contains materials for the 2014 University of Nebraska College of Law annual write-on competition.
This competition is open to UNL Law students who have completed their 1L year or are a transfer student, and have two (2) or more remaining (non-summer) semesters left. Further instructions are available in the attached materials.
If you have any questions, please contact Sarah Hindman, Research Editor, at sarahnhindman@gmail.com.
Best of luck!
Materials for 2014 Write-On Competition
Copyright’s Unconsidered Assumption: Statutory Successors to the Termination Interest (and the Unintended Consequences for Estate Planners)
Katie Joseph
I. Introduction
II. A Brief Overview of Termination
III. Legislative History of Successors in Reversion and Termination ... A. 1790–1831 ... B. The 1909 Copyright Act … 1. Conferences ... 2. Congressional Proceedings ... C. The 1976 Act ... 1. Studies and Conferences on Revision ... 2. Congressional Proceedings
IV. A More Sensible Succession ... A. Termination as a Planning Challenge ... B. The Preference for Testamentary Freedom ... C. Two Statutory Solutions ... 1. Reorder Statutory Successors ... 2. Exempt Certain Lifetime Transfers ... V. Planning & Termination ... A. Is Termination a Concern? ... B. Transfer by Will ... C. Work Made for Hire
VI. Conclusion