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Indiana Law
Review



TRIBUTES

A Letter from Gerald L. Bepko and His Wife, Jean, in Celebration of Sharon and Lawrence P. Wilkins

Who Have Been Friends for Twenty-Nine Years

An Appreciation of Larrie Wilkins

Paul N. Cox

Susanah M. Mead

Tribute to Professor Lawrence P. Wilkins
JeffreyW. Grove

Tribute

Lawrence P. Wilkins

Florence Wagman Roisman

Legacy: Professor Lawrence P. Wilkins
William J. Woodward, Jr.

ARTICLES

Physicians and Patients Who "Friend" or "Tweet": Constructing a Legal Framework

for Social Networking in a Highly Regulated Domain

Nicolas P. Terry

Voter Deception
Gilda R. Daniels

The Foreign Corrupt Practices Act in the Ultimate Year of Its Decade of Resurgence

Mike Koehler

BOOK REVIEW

Review Essay: The Disintegration of the Idea of Human Rights
R. George Wright

PANEL DISCUSSION TRANSCRIPT

Honoring the Legacies of Justice William J. Brennan, Jr., and Justice Thurgood Marshall
A Panel Discussion Presented by the Indianapolis Lawyer Chapter of the American Constitution Society

Gavin M. Rose

Jess Reagan
Dino L. Pollock

NOTES

Recalling What Congress Forgot: Ledbetters Continuing Applicability in FHA Design-and-Construction Cases

and the Need for a Consistent Legislative Response
Laura Katherine Boren

You Shall Always Be My Child: The Due Process Implications of Paternity Affidavits

Under Indiana Code Section 16-37-2-2.1

Kayla Britton



9



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SCHOOL OF LAW-INDIANAPOLIS

fUPUI



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Indiana University School of Law — Indianapolis
2009-2010 ADMINISTRATIVE OFFICERS AND FACULTY

Administrative Officers

MICHAEL A. McROBBlE, President of the University. Ph.D., Australian National University.
CHARLES R. Bantz, Chancellor, Indiana University-Purdue University — Indianapolis. B.A.,

M.A., University of Minnesota; Ph.D., The Ohio State University.
GARY R. ROBERTS, Dean and Gerald L. Bepko Professor of Law. B.A., Bradley University;

J.D., Stanford University.
PaulN. Cox, Vice Dean and Centennial Professor of Law. B.S., Utah State University; J.D.,

University of Utah; LL.M., University of Virginia.
JAMES P. NEHF, Associate Dean for Graduate Studies and Cleon H. Foust Fellow; Professor

of Law and John S. Grimes Fellow. B.A., Knox College; J.D., University of North

Carolina Law School.
Claire Grove, Assistant Dean for Graduate Studies. B.A., Indiana University; J.D., Indiana

University School of Law — Indianapolis.
JONNA KANE MacDougall, Assistant Dean for Institutional Advancement. B.A., M.A.,

Indiana University; J.D., Indiana University School of Law — Indianapolis.
Chastity Thompson, Assistant Dean for Professional Development. A.S., B.A., Alabama State

University; M.B.A., Auburn University; J.D., Indiana University School of Law —

Indianapolis.
ELIZABETH ALLINGTON, Director for External Affairs. B.A., Indiana University; M.A., M. Phil.,

New York University.
TERESA (Terri) J. Cuellar, Director of Technology Services. B.S., St. Bonaventure

University, New York.
JOYCE M. HERTKO, Director of Major Gifts. B.A., Knox College; M.S., Western Illinois

University; Ph.D., Indiana University.
AMANDA KAMMAN, Director for Development. B.A., Indiana University.
Patricia K. Kinney, Director of Admissions. B.S., Purdue University; J.D., Indiana University

School of Law — Indianapolis.
VIRGINIA MARSCHAND, Director of Administrative and Fiscal Affairs. B.A., M.P.A., Indiana

University; J.D., Indiana University School of Law — Indianapolis.
HEATHER McCABE, Director, Public Health Law Program, William S. and Christine S. Hall

Center for Law and Health. B.A., M.S.W., Indiana University; J.D., Indiana

University School of Law — Indianapolis.
SONJARlCE, Egypt Program Director. B.A, Purdue University; J.D., Indiana University School

of Law — Indianapolis.
La WANDA W. Ward, Director of Pro Bono Program and Public Interest. B.A., Murray State

University; M.A., Illinois State University; M.S., Old Dominion University; J.D.,

Indiana University School of Law — Indianapolis.
T AMARAMcMlLLIAN, Associate Director of Professional Development. B.A., Southern Illinois

University — Carbondale; M.S.W., Southern Illinois State University — Carbondale;

J.D., DePaul University College of Law
SUSIE AGNEW, Assistant Director of Student Services. Clark College.
William J. Baker, Assistant Director of Technology Services.
KAREN H. MILLER, Assistant Director for Admissions. Midway College.
Lisa SCHRAGE, Assistant Director for Donor Relations. B.S., Marian College.

Faculty

CYNTHIA M. Adams, Clinical Professor of Law and Co-Director of the Latin American Law
Program. B.A., Kentucky Wesleyan College; J.D., Indiana University School of
Law — Indianapolis.

JUDITH Ford ANSPACH, Professor of Law and Director, Ruth Lilly Law Library. B.S., M.L.S.,
Kent State University; J.D., Mississippi College School of Law.

CYNTHIA BAKER, Clinical Associate Professor of Law and Director, Program on Law and State
Government. B.A., J.D., Valparaiso University.

GERALD L. BEPKO, Indiana University-Purdue University — Indianapolis Chancellor Emeritus,
Indiana University Trustee Professor and Professor of Law. B.S., Northern Illinois
University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale Law School.



SHAWN BOYNE, Associate Professor of Law and Dean's Fellow. B.A., Cornell University;

M.B.A., University of Minnesota, J.D., University of Southern California's Gould

School of Law, M.A., University of Wisconsin, L.L.M., Justus-Liebig-Universtat.
KAREN E. Bravo, Associate Professor Law; John S. Grimes Fellow and Dean 's Fellow. B.A.,

The University of the West Indies; J.D., Columbia University School of Law; LL.M.,

New York University School of Law.
ROBERT Brookins, Professor of Law. B.S., University of South Florida; J.D., Ph.D., Cornell

University.
KENNETH D. CHESTEK, Clinical Associate Professor of Law. B.A., Pennsylvania State

University; J.D., University of Pittsburgh School of Law.
DANIEL H. COLE, R. Bruce Townsend Professor of Law. A.B., Occidental College; A.M.,

University of Chicago; J.D., Lewis and Clark Law School; J.S.M., J.S.D., Stanford

Law School.
Jeffrey O. Cooper, Associate Professor of Law. A.B., Harvard University; J.D., University of

Pennsylvania Law School.
ERIC Dannenmaier, Associate Professor of Law and Dean 's Fellow. B.A., Drury College;

J.D., Boston University; LL.M., Columbia University; M. St., Oxford University.
JAMES D. DIMITRI, Clinical Professor of Law. B.S., Indiana University; J.D., Valparaiso

University School of Law.
JENNIFER A. DROBAC, Professor of Law and Director, Central and Eastern European Law

Summer Program. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law

School.
GEORGE E. EDWARDS, Carl M. Gray Professor of Law; Faculty Advisor to the LL.M. Track in

International Human Rights Law; Director, Program in International Human Rights

Law and John S. Grimes Fellow. B.A., North Carolina State University; J.D.,

Harvard Law School.
FRANK EMMERT, John S. Grimes Professor of Law and Executive Director, Center for

International and Comparative Law. Erstes Juristisches Staatsexamen (J.D.),

University of Munich Law School; LL.M., The University of Michigan Law School;

Ph.D., University of Maastricht; Diploma, European University Institute.
NICHOLAS GEORGAKOPOULOS, Harold R. Woodard Professor of Law. PtyhionNomikis, Athens

University School of Law; LL.M., S.J.D., Harvard Law School.
CARRIE Hagan-Gray, Clinical Associate Professor of Law. B.A., University of Kansas; J.D.,

University of Cincinnati, College of Law.
JOHN LAWRENCE Hill, Professor of Law; Adjunct Professor of Philosophy and John S. Grimes

Fellow. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University.
LINDA Kelly Hill, M. Dale Palmer Professor of Law. B.A., J.D., University of Virginia.
Max HUFFMAN, Associate Professor of Law and Dean 's Fellow. B.A., Cornell University, J.D.,

University of Chicago College of Law.
LAWRENCE A. JEGEN, III, Thomas F. Sheehan Professor of Tax Law and Policy. A.B., Beloit

College; J.D., M.B.A., The University of Michigan; LL.M., New York University

School of Law.
ROBERT A. KATZ, Professor of Law and John S. Grimes Fellow. A.B., Harvard College; J.D.,

University of Chicago Law School.
ELEANOR D. KINNEY, Hall Render Professor of Law, Co-Director of the William S. and

Christine S. Hall Center for Law and Health. B.A., Duke University; M.A.,

University of Chicago; J.D., Duke University School of Law; M.P.H., University of

North Carolina.
Andrew R. Klein, Paul E. Beam Professor of Law. B.A., University of Wisconsin; J.D.,

Emory University School of Law.
NORMAN LEFSTEIN, Professor of Law and Dean Emeritus. LL.B., University of Illinois College

of Law; LL.M., Georgetown University Law School.
MARIA PABON LOPEZ, Professor of Law and Dean 's Fellow. B.A., Princeton University; J.D.,

University of Pennsylvania Law School.
GERARD N. MAGLIOCCA, Professor of Law; Co-Director, Chinese Law Summer Program and

John S. Grimes Fellow. B.A., Stanford University; J.D., Yale Law School.
ALLISON MARTIN, Clinical Associate Professor of Law. B.S., J.D., University of Illinois.
DEBORAH MCGREGOR, Clinical Professor of Law and Assistant Director of Legal Analysis,

Research and Communication. B.A., University of Evansville; J.D., Georgetown

University Law School.
SUSANAH M. MEAD, Professor of Law. B.A., Smith College; J.D., Indiana University School

of Law — Indianapolis.



MARY H. MITCHELL, Alan H. Cohen Professor of Law. A.B., Butler University; J.D., Cornell

Law School.
EMILY MORRIS, Associate Professor of Law and Dean 's Fellow. A.B., Harvard University, J.D.,

University of Michigan Law School.
NOVELLA Nedeff, Clinical Associate Professor of Law. B.A., J.D., Indiana University.
DAVID ORENTLICHER, Samuel R. Rosen Professor of Law and Co-Director of the William S.

and Christine S. Hall Center for Law and Health. A.B., Brandeis University; J.D.,

M.D., Harvard College.
JOANNE Orr, Clinical Professor of Law. B.S., Indiana State University; J.D., California

Western School of Law.
ANTONY PAGE, Associate Professor of Law and Dean 's Fellow. B. Comm., McGill University;

M.B.A., Simon Fraser University; J.D., Stanford Law School.
H. Kathleen Patchel, Associate Professor of Law. A.B., Huntington College; J.D.,

University of North Carolina Law School; LL.M., Yale Law School.
MICHAEL J. PITTS, Associate Professor of Law; Dean 's Fellow and John S. Grimes Fellow.

B.S.J., Northwestern University; J.D., Georgetown University Law Center.
PETER A. PRESCOTT, Associate Professor of Law. B.A., Augustana College; M.S., The

University of Chicago; M.P.A., The University of Texas at Austin; J.D., The

University of Houston Law Center.
Fran Quigley, Visiting Professor. B.A., Hanover College; M.A., Indiana University; J.D.,

Indiana University School of Law — Indianapolis.
FLORENCE WAGMAN ROISMAN, William F. Harvey Professor of Law. B.A., University of

Connecticut; LL.B., Harvard Law School.
GARY R. ROBERTS, Dean and Gerald L. Bepko Professor of Law. B.A., Bradley University;

J.D., Stanford University.
JOAN M. Ruhtenberg, Professor of Law and Director of Legal Analysis, Research and

Communication. B.A., Mississippi University for Women; J.D., Indiana University

School of Law — Indianapolis.
JoelM. Schumm, Clinical Professor of Law and Director, Judicial Externship Program. B.A.,

Ohio Wesleyan University; M.A., University of Cincinnati; J.D., Indiana University

School of Law — Indianapolis.
Frances Watson, Clinical Professor of Law. B.S., Ball State University; J.D., Indiana

University School of Law — Indianapolis.
LLOYD T. WILSON, Jr., Professor of Law and Co-Director, Chinese Law Summer Program.

B.A., Wabash College; M.A., Duke University; J.D., Indiana University School of

Law — Bloomington.
Mary T. Wolf, Clinical Professor of Law and Director of Clinical Programs and Externships.

B.A., Saint Xavier College; J.D., University of Iowa College of Law.
R. George Wright, Lawrence A. Jegen III Professor of Law. A.B., University of Virginia;

Ph.D., Indiana University; J.D., Indiana University School of Law — Indianapolis.

Emeriti Faculty

THOMAS B. ALLINGTON, Professor of Law Emeritus. B.S., J.D., University of Nebraska; LL.M.,

New York University School of Law.
Edward P. Archer, Professor of Law Emeritus. B.M.E., Renesselaer Polytechnic Institute;

J.D., LL.M., Georgetown University Law School.
JAMES F. BAILEY, III, Professor of Law Emeritus and Director of the Law Library Emeritus.

A.B., J.D., M.A.L.S., The University of Michigan.
Clyde Harrison CROCKETT, Professor of Law Emeritus. A.B., J.D., University of Texas;

LL.M., University of London (The London School of Economics and Political

Science).
DEBRA A. FALENDER, Professor of Law Emerita. A.B., Mount Holyoke College; J.D., Indiana

University School of Law — Indianapolis.
DAVID A. Funk, Professor of Law Emeritus. A.B., College of Wooster; J.D., Case Western

Reserve University School of Law; M.A., The Ohio State University; LL.M., Case

Western Reserve University; LL.M., Columbia Law School.
PAUL J. GALANTI, Professor of Law Emeritus. A.B., Bowdoin College; J.D., University of

Chicago Law School.
Helen P. Garfield, Professor of Law Emerita. B.S.J., Northwestern University; J.D.,

University of Colorado School of Law.
Harold Greenberg, Professor of Law Emeritus. A.B., Temple University; J.D., University

of Pennsylvania Law School.



Jeffrey W. Grove, Professor of Law Emeritus. A.B., Juniata College; J.D., George

Washington University Law School.
WILLIAM F. Harvey, Carl M. Gray Professor of Law & Advocacy Emeritus. A.B., University

of Missouri; J.D., LL.M., Georgetown University Law School.
W. William Hodes, Professor of Law Emeritus, A.B., Harvard College; J.D., Rutgers

University School of Law — Newark.
Henry C. Karlson, Professor of Law Emeritus. A.B., J.D., LL.M., University of Illinois

College of Law.
William Andrew Kerr, Professor of Law Emeritus. A.B., West University; B.S., Duke

University; J.D., LL.M., Harvard Law School.
William E. Marsh, Professor of Law Emeritus. B.S., J.D., University of Nebraska.
Ronald W. Polston, Professor of Law Emeritus. B.S., Eastern Illinois University; LL.B.,

University of Illinois College of Law.
Kenneth M. Stroud, Professor of Law Emeritus. A.B., J.D., Indiana University —

Bloomington.
JAMES W. TORKE, Carl M. Gray Professor of Law Emeritus. B.S., J.D., University of

Wisconsin.
James Patrick White, Professor of Law Emeritus. A.B., University of Iowa; J.D., LL.M.,

George Washington University Law School.
Lawrence P. Wilkins, William R. Neale Professor of Law Emeritus. B.A., The Ohio State

University; J.D., Capitol University Law School; LL.M., University of Texas School

of Law.

Law Library Faculty

JUDITH Ford ANSPACH, Professor of Law and Director, Ruth Lilly Law Library. B.S., M.L.S.,

Kent State University; J.D., Mississippi College School of Law.
Susan Boland, Head of Information Services. B.A., Monmouth College; M.S., University of

Illinois; J.D., Illinois University College of Law.
Debra Denslaw, Reference Librarian. B.A., Franklin College; M.S., University of Illinois,

Urbana-Champaign; J.D., Valparaiso School of Law.
Richard Humphrey, Reference Librarian. A. A., Brewton-Parker Junior College; B.A.,

Georgia Southwestern College; M.L.S., University of Kentucky.
Wendell E. Johnting, Assistant Director for Technical Services. A.B., Taylor University;

M.L.S., Indiana University.
Chris E. Long, Cataloging Librarian. B.A., Indiana University; M.A., Indiana University;

M.L.S., Indiana University.
Steven R. Miller, Reference Librarian. B.S., Lebanon Valley College of Pennsylvania; M.A.,

Dominican University; M.S., Northwestern University; J.D., The John Marshall Law

School.
MAHNAZ K. MOSHFEGH, Serials/Acquisitions Librarian. B.A., National University of Iran;

M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana

University.
Miriam A. Murphy, Associate Director. B.A., Purdue University; J.D., M.L.S., Indiana

University — Bloomington.
KlYOSHl Otsu, Automated Services and Media Librarian. A.A., Parkland College; A.B., M.S.,

C.A.S., University of Illinois.



Indiana Law Review

Volume 43 2010 Number 2

Copyright © 2010 by the Trustees of Indiana University

TABLE OF CONTENTS

TRIBUTES

A Letter from Gerald L. Bepko and His Wife, Jean, in Celebration of
Sharon and Lawrence P. Wilkins Who Have Been Friends
for Twenty-Nine Years 269

An Appreciation of Larrie Wilkins Paul N. Cox 273

Susanah M. Mead

Tribute to Professor Lawrence P. Wilkins Jeffrey W. Grove 277

Tribute

Lawrence P. Wilkins Florence Wagman Roisman 279

Legacy: Professor Lawrence P. Wilkins William J. Woodward, Jr. 281

ARTICLES

Physicians and Patients Who "Friend" or "Tweet": Constructing
a Legal Framework for Social Networking in a Highly
Regulated Domain Nicolas P. Teriy 285

Voter Deception Gilda R. Daniels 343

The Foreign Corrupt Practices Act in the Ultimate Year of Its

Decade of Resurgence Mike Koehler 389

BOOK REVIEW

Review Essay: The Disintegration of the Idea of

Human Rights R. George Wright 423

PANEL DISCUSSION TRANSCRIPT

Honoring the Legacies of Justice William J. Brennan, Jr., and
Justice Thurgood Marshall
A Panel Discussion Presented by the Indianapolis
Lawyer Chapter of the American Constitution Society

Gavin M. Rose 441

Jess Reagan
Dino L. Pollock



NOTES

Recalling What Congress Forgot: Ledbetter's Continuing Applicability
in FHA Design-and-Construction Cases and the Need
for a Consistent Legislative Response . . . Laura Katherine Boren 467

You Shall Always Be My Child: The Due Process Implications
of Paternity Affidavits Under Indiana Code
Section 16-37-2-2.1 Kayla Britton 499



Volume 43 Number 2




Lawrence P. Wilkins



Indiana Law Review

Volume 43 2010 Number 2



TRIBUTES



A Letter from Gerald L. Bepko* and His Wife,

Jean, in Celebration of Sharon and

Lawrence P. Wilkins Who Have Been

Friends for Twenty-Nine Years



Dear Sharon and Larrie,

It seems like yesterday that we met, but it was more than twenty-nine years
ago. That was when we recruited you, Larrie, from your appointment at the
University of Akron. At that time Tom Read was Law Dean, I was Associate
Dean for Academic Affairs and both of us, along with the faculty, were excited
about your appointment.

Your academic work at Akron was excellent and you earned an appointment
there with tenure in the regular course. Moreover, we didn't have as many lateral
hires in those days and your experience seemed just right for IU at Indianapolis.

Not only were we attracted to your academic portfolio in 1979-80 including
articles in places like the University of Cincinnati, Cleveland State, Family Law
Quarterly and Land and Water Law Review, but you seemed to achieve
excellence in your engagement with Ohio's professional community and in the
larger communities in the population centers served by the University of Akron.
Of particular interest was your work in the interconnections between law, health,
and medicine. Among other things, you had organized and served as a panelist
at a program for the Northeastern Ohio Universities College of Medicine on the
"Moral/Ethical Issues in Modern Health Care: The Balance of Risks in
Research." These strengths fit well with our Law School's long standing links
with the Indiana University (IU) School of Medicine and our growing ambitions
in Health Law.

On top of all this there were some common experiences that you and I shared
by way of an LL.M. program and previous teaching experience in a multi-
division law school. Finally we were all struck by your very serious, thoughtful
approach to your fields of study.



* Former Interim President of Indiana University, 2003; Indiana University-Purdue
University — Indianapolis (IUPUI) Chancellor Emeritus, Indiana University Trustees, Professor and
Professor of Law; former Dean of the Indiana University School of Law — Indianapolis, 1981-86.
Gerald L. Bepko and his wife, Jean, sent this letter on November 15, 2008, to Sharon and
Lawrence P. Wilkins on the occasion of his retirement from the Indiana University School of
Law — Indianapolis. It has been expanded to include a few additional thoughts and is being resent
as part of the tribute to Professor Wilkins.

** Jean Bepko served as Special Assistant in the Office of the Chancellor of IUPUI and in
the Office of the President of Indiana University.



270 INDIANA LAW REVIEW [Vol. 43 :269



Thereafter, Larrie, we worked together at the School for about six years.
During five of those years I was the dean which, because of schedule demands,
made it more difficult to have the kinds of relationships that colleagues with
similar backgrounds would normally develop. Still, I remember fondly the times
we had together including your debut as a player of some considerable skill on
the faculty touch football team; although, as I recall, by the time you joined the
faculty the game had passed me by or, to put it more charitably, I was on injured
reserve.

After 1986 when I joined the IUPUI administration ("University"), I saw less
of you on campus, but kept abreast of the School through Jeff and then Norm.
They commented often on the leadership role you naturally assumed and how
important you were to the success of the academic program. As a leader among
faculty you took your share of the executive assignments such as Associate Dean
and, reflecting your interest in new technologies, as webmaster and Director of
Legal Management Systems.

From a vantage point in the University administration I observed your
external work develop in Indiana just the way it had in Ohio. You did your fair
share of high quality continuing legal education work for the Indiana bar and you
continued your work on the interface between law and health. Your interest in
technology has also been visible from afar, especially your long involvement
with the National Center for Computer Assisted Legal Instruction where you've
served since 1997 on the Board of Editors. Also of interest was your leadership
in the Symposium issue of the Indiana Law Review in 1997 on "Law and
Technology in the New Millennium: Closing the Gap."

One special event in your life came to my attention in the first or second year
that I was chancellor. It came to me in the form of a request for a sabbatical
leave which you spent as a Visiting Professor at Monash University in Australia.
This overseas venture enriched and added an international dimension to your
already formidable teaching repertoire. It also continued in fine fashion the links
our faculty have had with Monash University.

Another very special dimension of your work was visible to all in the
University administration. You have served in extremely able fashion on the
University's Institutional Review Board for Research Involving Human Subjects.
This was a very important function of the University when you became a member
of the Review Board in 1988, and it became even more important over the years
as the human subject issues became more complex. Your work became
increasingly important as the number of complex cases from the School of
Medicine increased, the volume of research activity expanded dramatically, and
there was an enormous growth in resources devoted to research. This continues
to be one of the most important areas in which we must achieve excellence, and
your long service of more than twenty years, and the leadership you provided,
have been very important to our success.

Along the way I've also heard from your former students what a deep and
positive impression you've made in the profession. Being out in the larger
community I sometimes heard more about the School than when I was dean,
because people saw me as independent of the School. You should be proud of
the way people think of you in this state.



2010] A CELEBRATORY LETTER 27 1



My respect for you and the fond recollections of our time together as law
faculty were part of the reason I was so pleased to join the "reading group" of
elder, mostly retired, faculty that includes you, Jim Torke, Jeff Grove, and Paul
Cox. It has been uplifting and enjoyable to be a part of this group with you and
I was especially taken by the book by Robert Nagel that you suggested for the
session we had just before I first wrote this letter in November 2008.

While I didn't see you at the Law School very much over the years, Larrie,
Jean and I did see both of you at St. Luke's United Methodist Church. Larrie,
you and I have sat together many times, even in the last month or two, at the
Sunday services. Of course all at St. Luke's have seen and heard you, Sharon,
in the New Song Ensemble.

For me one of the most memorable musical moments at St. Luke's — a church
known for the excellence of its music — was when New Song performed a
wonderful adaptation of the traditional hymn titled "Morning has Broken," a
hymn introduced into popular culture by Cat Stevens in 1971. The New Song
adaptation is much better than the Stevens' version although both are moving.

Sharon, you've also come into our lives by way of your wonderful work as
a second grade teacher at the Fox Hill School. Jean was a teacher's assistant in
reading in your classroom at the Fox Hill School for a number of years and holds
those teaching experiences to be among her most cherished along with her
twenty-six years of teaching in the St. Luke's Sunday School. From her
experience in your School and in your class room, Sharon, Jean, and I have come
to admire you very much. If Larrie 's following among alumni of the Law School
is to be eclipsed in any way it would be by the following of your former students
and their grateful parents and grandparents.

I'll bet you've had the same experience as Jean and I when out at dinner or
in some other public space in Indianapolis. Someone we don't immediately
recognize will approach our table with the intent of saying hello. At least as
often as it involves some aspect of our work in the University, and perhaps more
often, it is a parent, grandparent, or especially a former student of Jean's who
will say something like, "Mrs. Bepko, I was in your Sunday School class at St.
Luke's."

Both Jean and I hope that we'll see more of you now that you're moving to
the next stage of life. Of course we both hope that this next stage is particularly
joyful and that you and your family are as happy as it is possible to be.

Sincerely,

Jerry Bepko in collaboration with his partner of

forty-one years, Jean Bepko



An Appreciation of Larrie Wilkins



Paul N. Cox
Susanah M. Mead**

We are honored to have been asked by the editors of the Indiana Law Review
to record a few words about our friend and colleague, Larrie Wilkins, upon the
occasion of his retirement.

It is customary in a tribute such as this to recount milestones in the career of
the person honored, but we will only briefly summarize these. Of more
importance is what Larrie meant to us as his colleagues, to the law school, and to
his students.

Lawrence P. Wilkins was appointed by the Indiana University School of
Law — Indianapolis as an Associate Professor in 1980. Prior to this appointment,
he had served as an associate professor of law at the University of Akron School
of Law (1974-1980). Larrie achieved full professorial rank in 1983 and was
named the William R. Neale Professor of Law in 2003.

During the course of his twenty-eight years at this law school, in addition to
his faculty responsibilities, Larrie has served as Associate Dean for Academic
Affairs (1988-1990), as Director of the Program for Management of Legal
Information Systems (1997-2000), and as chair or a member of numerous faculty
committees and task forces. His tireless efforts on the Building Committee
during the planning stages of Inlow Hall are in great part responsible for its
beauty and functionality.

He served, as well, on several campus committees, and, significantly, devoted
substantial time and effort as a member of the Indiana University-Purdue
University at Indianapolis Institutional Review Board for Research Involving
Human Subjects. On a campus with a major medical school and research facility,
this Board serves a critical function. Larrie was an active member of the Board
for many years, helping to develop policies and procedures for the use of human
subjects in studies with experimental drugs. Although he was always clear with
the Board that he was a member of the Board and not its legal counsel, he was
instrumental in developing important policies and procedures, especially in
sensitive privacy issues such as how health information could be used for
research purposes. Members regularly discussed with him serious legal and
ethical issues. He drafted the language on how subjects should be compensated
if they were injured as well as the consent form that is still in use. On rare
occasions when he was unable to attend a meeting and a difficult issue arose,
someone would say, "what would Larrie do?" The fact that he was the only non-
physician member of the Board ever to serve as a committee vice-chair speaks to
the esteem in which he was held by his Board colleagues.

Larrie' s scholarly interests included the law of torts, medical malpractice,
technology, negotiation, remedies, and legal education. His several publications
and numerous presentations on these and other subjects reached national,



* Vice Dean and Centennial Professor of Law, Indiana University School of Law-
Indianapolis.

** Professor of Law, Indiana University School of Law — Indianapolis.



274 INDIANA LAW REVIEW [Vol. 43:273



regional, and local audiences of academics and lawyers. Of particular note were
his many significant contributions to the medical research enterprise through his
service on the institutional review board described above and his many
presentations to medical professionals regarding medical and legal issues.
Larrie's efforts helped to forge important links between the law school and life
sciences and contributed significantly to the school's health law center and
programs. He was faculty advisor to the law school's nationally ranked Health
Law Review and to students seeking their LL.M. in health law.

These milestones, again, however, are merely a few factual highlights. They
fail to capture sufficiently the reasons for the great affection with which Larrie is
held in the eyes of his colleagues and students. What are these reasons?

There is, first, Larrie's generosity in making himself available to and
sympathetically engaging with all who sought his opinion and counsel. There
were countless occasions on which he would interrupt his work to address issues
raised with him by colleagues. If there were limits to this generosity, they were
only those imposed by the priorities of his devotion to his students, with one or
more of whom he was often engaged in patiently discussing matters related to his
courses.

There is, second, Larrie's principled judgment. Colleagues and students
would seek his opinion and advice precisely because they could expect this
judgment. So, too, could colleagues in other departments and schools,
particularly in the medical community. By principled judgment we mean that
Larrie brought to these conversations both a sense of the relevant, the material,
and the possible — the discernment of the good lawyer and a commitment to
principle — the integrity of the good lawyer. Our emphasis on the qualities of the
good lawyer are, we think, central to an understanding of Lame's contributions,
for Larrie was both an exemplar of the lawyer and an educator committed to
instilling the qualities of the good lawyer in his students.

This rendered Larrie, as he recognized, "old school" in an era in which many
in the legal academy have questioned the efficacy and even the reality of
"thinking like a lawyer." Larrie believes passionately, however, in what many
have questioned, and we testify to efficacy and reality in the example he
established. In all of our many encounters with him and in all of the many
encounters we observed, he brought to even the most complex and difficult
matters an insistence upon the importance of facts and nuances of context, a
capacity to identify the material issues and a talent for imposing order through
persuasive analysis.

Larrie brought also, and perhaps most importantly, an insistence upon honest,
civil, and reasoned discussion within a commitment to doing the right thing, and
this is what we mean by the importance of principle to his thinking. Neither
Larrie nor we are so naive as to think "the right thing" always easily discerned or
always free from contest or doubt, even though neither he nor we are so cynical
as to believe it seldom discernible or always contestable and in doubt. We mean
only that it is, in Larrie's eyes and in the example he set for us, that which should
be sought, however painful the answer reached.

There is, third, Larrie's tireless devotion to service, both inside and outside
the law school. We have touched upon his service to the university, campus, and



20 1 0] AN APPRECIATION OF LARRIE WILKINS 275



profession, but wish particularly to note his service within the law school Legal
academics bring a variety of important qualities to their profession, but the
willingness and capacity to get things done within an institution devoted in large
measure to faculty governance is, perhaps surprisingly, often rare. Larrie
possessed in high measure these rare qualities. If there was to be a difficult and
burdensome year in faculty recruitment or in curricular reform or in reviewing
academic standards or in the myriad of other matters that come before the faculty,
Larrie was the first choice of the person to chair the relevant committee or lead
the appropriate task force. His many contributions to making the law school
work are now significant parts of our institutional structure and practice.

Fourth, and finally, there is Larrie' s complete commitment to being a legal
educator. That commitment is evidenced by his large body of teaching materials,
his experiments with and success in developing distance education courses and
CALI (the Center for Computer Assisted Legal Instruction) exercises, his many
hours of preparing for classes and many more hours of conferences with students,
and the great esteem with which he is viewed by the school's alumnae. These,
again, however, are facts that inadequately capture our point. That point is that
Larrie was committed to the belief that the primary function and calling of the
legal academic is teaching. And teaching was what Larrie did superbly well His
now literally thousands of former students, who may in the early weeks of the
semester in a course taught by Larrie have entered the classroom door with great
trepidation, having heard of the rigors of his classes, left it at the end of the
semester with a sense of great good fortune for having had the opportunity to be
taught by a master. The myriad notes, letters, poems, pictures and
sculptures — including a beautiful Lego rendition of the famous train in Palsgraf
v. Long Island Railroad Co. l — he received at the end of every semester attest to
the esteem in which his students held him as well as the great affection they had
for him. His habitual greeting to his first-year students, "good morning (or
"afternoon" or "evening") Torts scholars," was fraught with meaning. His intent
was to make each student immerse him or herself in the subject of the law of
Torts in a way none of them had ever been immersed in a subject before. His
gentle but demanding insistence on depth of reading, care in organization, and
precision of thought made Torts scholars of all who allowed themselves to be led
by him.

Larrie' s teaching was not limited to the students who enter our doors each
year and leave us three of four years later as educated lawyers. Some of his most
important (and most appreciated) teaching has been the training of novice law-
professors in the art of teaching the uninitiated to become lawyers.

In 198 1, when Larrie had been a Torts professor for a number of years but a
Torts professor at our school for only a year, he took on two young disciples who
had recently been recruited to teach Torts. One of these disciples is one of the
authors of this tribute. The time and effort he devoted to teaching two neophyte
law professors who had not seriously considered the law of Torts since their first-
year Torts class, and who had never taught a substantive law class before, cannot



1. 162N.E. 99(N.Y. 1928).



276 INDIANA LAW REVIEW [Vol. 43:273



be measured. He spent endless hours discussing the subtleties of the law and how
best to present it to students. He was always available to discuss cases, observe
classes, and answer questions. Some of these questions no doubt displayed
naivety, perhaps stupidity. Nevertheless, to his eternal credit Larrie managed to
answer and advise novices in a way that always made them feel respected as
colleagues and considered as equals. This unselfish mentoring of young
colleagues continued throughout his career.

It is impossible to capture the character of a three decade career in a few
paragraphs especially one as full as Larrie' s. Nevertheless, we hope that we have
conveyed a sense of his importance to this law school. His retirement was a great
loss to the law school as an institution and to his friends and colleagues
personally. In closing, we would just like to say that we miss his presence in our
midst but know that he will always remain a loyal and loving friend.



Tribute to Professor Lawrence P. Wilkins



Jeffrey W. Grove*



Haiku for LPW

A serious man,

Not to be taken lightly.

Yet, a ready smile.

Creative worker,
Diligent perfectionist,
Indefatigable.

Independent mind,
Singular self-possession,
Exemplary colleague.

Longtime, faithful friend,
Honest, trusted, loyal, true.
Character is all.

Devoted parent

With childhood sweetheart, Sharon-

Forty-one years, so far.

Emeritus status:

Life reorganized anew.

Larrie, Ascendant.



* Professor of Law and Associate Dean Emeritus, Indiana University School of Law-
Indianapolis.



Tribute
Lawrence P. Wilkins



Florence Wagman Roisman

Despite Professor Wilkins' retirement from the law school, he is a continuing
presence for me — and, I am sure, many others. I still think of the office he
occupied as his office, though someone else is in it now, and I expect to see his
door open and Professor Wilkins behind his desk, as he almost always was.

Professor Wilkins did many things well, but I remember him particularly for
two aspects of his life and work, aspects that are inter-connected. The first was
his dedication to teaching; the second, his commitment to this law school.

People who are not intimately familiar with the legal academy might think
that legal education is focused on teaching, but this — alas! — is not true. Most
law schools and most law professors are focused primarily on scholarship and are
far more interested in the production of law review articles than in the care and
nurturing of those who would become lawyers. I am glad to say that our law
school is an exception to this general rule, and much of this is due to Professor
Wilkins 5 s influence.

With respect to hiring of faculty, Professor Wilkins was famous for five
things. When he served on the Faculty Recruitment Committee, he played a
crucial role in sketching each faculty candidate, which enabled those of us who
have bad memories to sort out one candidate from another. He also authored
three "Wilkins Rules": 1) that a person who was first in her or his class at any
school is a candidate worthy of our consideration; 2) that a person who began but
did not complete any program needed to have a good explanation for not
finishing what s/he had begun; and 3) that anyone who offered to teach "any first
year course" was someone who did not appropriately appreciate those courses.
His fifth and most important contribution was his insistence on teaching ability
as a priority. He helped to create the happy situation that this school, as an
institution, truly does care about teaching, and has hiring and promotion
standards that take teaching into strict account, so that virtually everyone on our
faculty is a good teacher.

Professor Wilkins was interested in and knowledgeable about new
technologies, and did pathbreaking work in developing lessons for law students
for CALI (the Center for Computer-Assisted Legal Instruction). His early
leadership in technology — he was founding editor and Webmaster of the law
school's Web site, and wrote the first fully electronic text used at the law
school — always was subordinate to the human interactions of students with one
another and with the professors. He developed innovative and effective ways to
teach his classes, and also worked hard to influence how the school as a whole
structured its curriculum, set its priorities, and evaluated teaching. Having
developed an effective way of teaching the six credit Torts class, he refused to
teach Torts after the faculty voted to reduce Torts to a four credit course. I've
never been altogether certain that I was right to have agreed to continue to teach
Property after it was reduced from six credits to four.



William F. Harvey Professor of Law, Indiana University School of Law — Indianapolis.



280 INDIANA LAW REVIEW [Vol. 43:279



Professor Wilkins was a central pillar of the law school's institutional
existence. He was one of the most reliable and essential contributors to faculty
governance — willing to chair and serve on demanding committees and always a
dependable participant in meetings and discussions. His characteristic closing
for messages regarding faculty disagreements was "Respectfully" — no matter the
topic, no matter how much heat might be generated among the disputants,
Professor Wilkins' s contributions always were useful, thoughtful, pertinent, and
civilly and "respectfully" proposed.

Professor Wilkins often quoted Justice Cardozo. I should like to do so as
well. Justice Cardozo wrote that "The victory is not for the partisans of an
inflexible logic nor yet for the levelers of all rule and all precedent, but the
victory is for those who shall know how to fuse these two tendencies together in
adaptation to an end as yet imperfectly discerned." 1 That Professor Lawrence B.
Wilkins made profound contributions to enabling new generations of lawyers to
secure this victory is what I wish to submit — most grateful and respectfully.



1 . Benjamin N. Cardozo, The Growth of the Law 1 43 ( 1 924).



Legacy: Professor Lawrence P. Wilkins



William J. Woodward, Jr.*

In 1980, 1 arrived at Indiana University School of Law — Indianapolis to start
work as a brand-new Assistant Professor. I was assigned to an office adjacent to
that of another newcomer, one Professor Lawrence P. Wilkins, and our offices
were linked by a doorway for the time I remained on the faculty. Even then, the
person I encountered in the next room had some gray hair. And he seemed
extremely gruff and a little scary at first. He remained after I left and has now
retired. What did he leave behind?

It's a rarity these days to find anyone staying on any one job for more than
a few years. What then do we make of someone who defies itinerant stereotypes
and stays for close to 30 years? In a song written in his later years, musician Neil
Young nostalgically wrote about having left "our tracks in the sound." 1 What
"tracks" might a professional educator leave apart from their published work?

Deans, of course, leave in their wake classrooms, libraries, buildings, or
portraits. But professors who resist the mysterious draw of administration leave
few physical traces of their time on the job. Their legacy, rather, resides in the
way their former institution now functions and, of course, in the minds and
thinking of those whom they have influenced through their teaching and writing.

So, the dean appoints a newly-hired professor to some committee and in the
course of that committee's work, the professor has a good idea. It could be a new
admissions policy, an idea for creating a new student organization, or a curricular
change. Of the hundreds of such ideas an engaged Professor X might have had
in three decades of institutional service, some will have been implemented and
some of those may show up in some recognizable form today while others may
have more subtly contributed to the feel or very trajectory of the institution itself.
So, for example, the professor may have arrived with a bee in his bonnet about
putting more simulation work into the curriculum. Persistent noise in committee
and faculty meetings and leadership by example may have slowly, almost
imperceptibly, transformed the institution into one where simulation instruction
has become the norm rather than the exception.

An active, engaged professor might affect an institution in far more subtle
ways. Many know or have heard of institutions where conflicts within the faculty
threaten to paralyze the institution and others that are models of harmonious,
consensus decision making. While some institutions seem condemned to faculty
dysfunction in perpetuity, they don't just get that way. Nor are harmonious
institutions the beneficiaries of dumb luck. Strong, persistent personalities can,
over time have a positive — or negative — influence on how colleagues relate to
one another (and the dean), both inside and outside of formal meetings. Strong
deans can, of course, influence these dynamics, but they are seldom in it for the
long haul and the "personality" of a law faculty can only be altered over the long
run.



* Professor of Law, Temple University. Thanks to Molly Woodward for her editorial
suggestions.

1 . Neil Young, Painter, on Prairie Wind (Reprise Records 2005).



282 INDIANA LAW REVIEW [Vol. 43:281



The professor exerts this kind of influence almost unconsciously, not
specifically intending to change things, just doing the job. The influence comes
from the gravitational force the personality has on people around them. The
influence is felt indirectly inasmuch as it is slow and evolutionary, only perceived
when taking the long view backwards.

Students, by contrast, are the targets of direct, even calculated influence.
However, opportunities to influence students are far more fleeting and diluted.
Here a professor of thirty or so years has the numbers in his favor. Simple odds
suggest that we would find some tracks in the lives of the thousands of students
a professor has encountered over a career of many years, particularly if that
professor regularly encountered entering, first-year law students. Tangible tracks
might be surprisingly trivial — showing up in a former student's routine use of an
unconventional term ("she's got a Palsgraf problem"), a particular diagram to
help in mapping a given kind of problem (a time line), or some abbreviation ("K"
for contract). Educators might hope the tracks would be more meaningful (a
highly-developed sense of "proximate cause") but substantive tracks are harder
to claim and probably more subtle — more likely found in something like the
similarity between a long-forgotten torts class and the way a lawyer of twenty
years approaches a given torts problem. Such tracks may be buried but are
foundational nonetheless.

When it comes to influence on colleagues, the dynamic is somewhere
between inadvertent influence that occurs imperceptibly over the long haul and
direct, pointed influence designed for and directed at students. It depends on
such random factors as legal specialty, age, and even office location.

I was hired almost thirty years ago to teach contracts and commercial courses
at Indiana University School of Law — Indianapolis and left four years later as an
Associate Professor headed to the East Coast. My good fortune was for that brief
period to have occupied that office adjacent to the gruff, graying Associate
Professor Wilkins, a lateral hire from Akron Ohio, three or four years my senior.
For a new professor, the first years are formative, those in which one learns to
teach, learns appropriate behavior towards one's institution, colleagues, and
students, and begins to develop a professional identity very different from that of
a lawyer. I spent four years in that adjacent office with the door to his office open
nearly all the time. One could scarcely wish for a better office assignment
inasmuch as Professor Wilkins (whom I'll now refer to as Larrie) taught me much
of what I know about being a law professor. He was, easily, the strongest
influence in my own early development as an academic, and I see evidence of the
tracks he's left with me nearly every day.

Most of what I learned from Larrie has to do generally with the level of
professionalism we ought to expect from those fortunate enough to be trusted
with an academic appointment. Larrie taught me about academic professionalism
largely through his example as a teacher and institutional good citizen. Some
came directly as instruction, usually solicited. Far more came indirectly, from the
gravitational force of his personality and the values embedded in it.

Teaching was at the center of Larrie 's professional work. While he used to
caution me that teaching was a "black hole" into which one could pour endless
energy to the detriment of a professor's other obligations, he put as much creative



2010] LAWRENCE P. WILKINS'S LEGACY 283



energy into the teaching enterprise as any experienced teacher I have ever known.
He was one of the first people I know of to use the labor-intensive device of
dividing large classes into "law firms" and using that construct to teach his
students substance, skills, and professionalism in the process. He was constantly
developing new exercises for his classes, constantly trying new ideas, constantly
changing. He introduced me to the concept of the "exam feedback memo," a
device that takes the final exam — typically an evaluative device — and turns it into
a learning device. My own exams have ever since been followed by exam
feedback memos and, I'm sure he'd be happy to learn, at least a handful of my
own colleagues have followed the example I acquired from him. Larrie also
developed materials to teach students about taking exams, materials I continue to
use to this day. He had great curiosity about the process of learning and, leading
by example, prompted me to attend sessions outside the law school dealing with
broader issues of teaching.

Larrie also served as a role model for me on the general question of how a
law professor relates to the institution — how much energy one can appropriately
devote to institutional service, what range of creativity is acceptable, how one
relates to one's colleagues on committees, how much one should care about
institutional decisions. I recall him always being in the thick of institutional
issues — wholesale curricular reform was the first of them. Yet while his
engagement was unequivocal while the issue of the day was in play, it was also
measured — he knew when to give up on a lost cause. I made very few moves in
my own institutional work at Indiana without consulting him and he was always
a source of wisdom and good guidance.

Perhaps the most important instruction Larrie gave me by example was about
professionalism and integrity more generally. He was always scrupulously honest
and straight, sometimes to a fault perhaps. He said what he thought to Dean and
colleagues alike, even when his views were unpopular or difficult to
accommodate. He would never consider reducing his classroom demands on
students to gain popularity and was regarded by students as a very demanding
teacher. He was unbelievably careful about grading exams and papers. He was
always a workhorse on committees and a very effective leader when he was chair.
In short, he simply never slacked off, always gave everything he had to the job
before him.

While I know they're there, it is anybody's guess what less-tangible tracks
Larrie left with me — buried and mixed as they are with over twenty-five years of
work 700 miles away from that adjacent office. Nor can I guess at what tracks
Larrie left with other, longer-term colleagues, with his institution of nearly thirty
years, or with his thousands of students. I do know that we're all the better for
his influence, whatever it was.

I can't contribute a library, a portrait, or even a book to honor his legacy. But
while he may not have invented them (I don't know who did), Larrie was the
ancestral source of my exam feedback memos, nearly thirty years worth of them
distributed to thousands of my students. It thus seems appropriate, in the case of
such a consummate educator, to acknowledge his contribution to my students.
So, I've dedicated my latest one that I've distributed to my students, for an exam
just concluded in Contracts, as The Lawrence P. Wilkins Memorial Exam



284 INDIANA LAW REVIEW [Vol. 43:281



Feedback Memo. This may be an eccentric or even a corny move, but in our age
of the impermanent present, there seems something useful in reminding ourselves
(and my own students) that ideas have a history, and a longevity that survives
particular individuals.

Larrie's many contributions are a legacy about which many have been, and
will continue to be grateful.



Indiana Law Review

Volume 43 2010 Number 2



ARTICLES



Physicians and Patients Who "Friend" or "Tweet"

Constructing a Legal Framework for Social

Networking in a Highly Regulated Domain



Nicolas P. Terry*

Introduction , 286

I. Social Networks . 288

A. Properties of Social Networks 289

B. Use, Perceptions, and Expectations 292

C Social Network Privacy and Security Settings 294

II. The Legal (and Not So Legal) Framework 297

A. Options; Property, Liability, Inalienability, and Soft Law 299

B. The Law of Boundaries; Privacy Torts and Breach of

Confidence 301

1. Intrusion upon Seclusion 302

2. Public Disclosure of Private Facts 303

3. Breach of Confidence 304

C. Privacy Expectations and Social Networks 305

D. Privacy and Confidentiality in Healthcare 307

1 . Intrusion Actions 308

2. Publicity Actions 309

3. Confidentiality Actions 313

E. Ethical Restraints 314

F. HIPAA and Related Regulatory Models 316

III. Setting Boundaries for Physicians and Patients .....318

A. Physicians ' Social Information Online 319

B. Patients' Health-Related Information Online 322

1 . Employers and Insurers 323

2. Physician Use of Posted Social Information 325

3. Third Parties Posting Patient Information 326

C. Physicians and Patients as "Friends'' . 329

1. Creating a Physician-Patient Relationship 330

2. Risk-Managing a Blurred Relationship ...333

3. Appropriateness of "Friend" Relationships 334



* Chester A. Myers Professor of Law, Senior Associate Dean, Saint Louis University,
email: terry@slu.edu. I thank Leslie Francis for her helpful suggestions on an earlier draft and
Michael Kella, J.D. Candidate, 201 1, Saint Louis University, and Professor Margaret McDermott
of our law library faculty for their research assistance.



286 INDIANA LAW REVIEW [Vol. 43:285



D. Physicians "Tweeting" or Posting About Their Work 335

1. Blogging and Posting 336

2. Twitter Feeds and Status Updates 338

Conclusion 340

"If Relationship George walks through this door, he will kill Independent
George! A George divided against itself cannot stand!" 1

Introduction

Computer-mediated social network sites are omnipresent and among the most
popular of all web destinations. There seem to be few limits on who is posting
or the subject matter of posts, and there is scant guidance on the appropriate
limits for online social interactions. Originally, such sites were the exclusive
playground of teenagers and college students (who continue to be the majority
of users). 2 Not surprisingly given this original demographic, media and legal
scrutiny concentrated on the potential of such sites to enable child predators, 3
facilitate other abuses of children and young adults such as bullying, 4 and
encourage graffiti behavior in adolescent users. 5

Although teenagers and young adults remain the dominant groups using
social network sites, adult usage quadrupled between 2005 and 2008 6 as adults
migrated to Facebook and MySpace initially, perhaps, to connect with their
children and grandchildren. 7 By December 2008, 35% of online adults had used
a social network site. 8 Of course, all users do not equally enjoy all social
network activities. For example, updating one's personal status using Twitter or
Facebook' s "What's on your mind?" feature continues to be an activity



1 . Seinfeld: The Pool Guy (NBC television broadcast Nov. 16, 1995).

2 . Amanda Lenhart, Adults and SocialNetwork Websites, Pew Internet & American
Life Project (2009), http://www.pewinternet.Org/~/media//Files/Reports/2009/PIP_Adult_Social_
networking_data_memo_FINAL.pdf.pdf.

3. See, e.g., Doe v. MySpace Inc., 528 F.3d 413 (5th Cir.), cert, denied, 129 S. Ct. 600
(2008).

4. See, e.g., United States v. Drew, No. CR 08-0582-GW, 2009 WL 2872855 (CD. Cal.
Aug. 28, 2009); Lauren Collins, Friend Game: Behind the Online Hoax That Led to a Girl's
Suicide, NEW YORKER, Jan. 21, 2008, available at http://www.newyorker.com/reporting/
2008/01/2 1/08012 1 fa_fact_collins; Alexandra Zavis, MySpace Conviction in Doubt, L.A. TIMES,
July 3, 2009, at A3, available at 2009 WLNR 12700576.

5. See infra notes 136-49 and accompanying text (cases involving, for example,
schoolchildren posting abusive materials about their schools or teachers).

6. Lenhart, supra note 2, at 1 .

7. John D. Sutter, All in the Facebook Family: Older Generations Join Social Networks,
CNN.COM, Apr. 13, 2009, http://www.cnn.com/2009/TECH/04/13/social.network.older/.

8. Lenhart, supra note 2, at 1; see also Sutter, supra note 7.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 287



dominated by young adults. 9

Online social networks are increasingly attracting the attention of large and
small businesses and professionals as vehicles for advertising, marketing, and
providing customer support. 10 For example, 54% of attorneys belong to an online
social network, 11 although membership remains skewed towards younger
professional users. 12 As the demographics of and motivations behind
participation in social networks evolve, the foundational teenager versus teenager
relationships and inevitable disputes will be replaced by more complex
relationships and risks that are considerably more nuanced.

This Article focuses on one highly complex relationship, that of physician
and patient. That relationship, together with the related imperative of protecting
patient information, constitutes a crucial component of the legal domain
applicable to our most highly regulated industry. Recent inquiries into the trust
and confidence properties of the physician-patient relationship and the protection
of patient data concentrated on the technical (diagnostic, pharmacy, etc.) data
associated with the care relationship. Thus, questions have been asked about the
adequacy of protection for networked or interoperable electronic records. 13 Such
inquires have escalated as patients have been encouraged to leverage technology
to store their own "personal" health records. 14 This Article is less interested in
technical medical data and more with social data that implicates health and



9. Amanda Lenhart & Susannah Fox, Twitter and Status Updating, Pew Internet
& American Life Project 1 (2009), available at http://www.pewintemet.Org/Wmedia//Files/
Reports/2009/PIP%20Twitter%20Memo%20FINAL.pdf.

10. See, e.g., Posting of Douglas A. Mclntyre to 24/7 WallSt.com, http://247wallst.com/
2009/05/26/the-ten-ways-twitter-will-permanently-change-american-business (May 26, 2009, 20: 1 1
EST); see also Nicola Clark, A irlines Follow Passengers Onto Social Media Sites, N. Y. TIMES, July
29, 2009, http://www.nytimes.com/2009/07/30/business/global/30tweetair. html; Amy Miller, FMC
Turns to Social Networking to Find Law Firms, Law.COM, May 18, 2009, http://www.law.
com/jsp/ihc/PubArticleIHC.jsp?id=1202430756051 (discussing use by client to increase its pool
of potential outside counsel through post on Legal OnRamp, a social network for lawyers); Richard
Raysman & Peter Brown, Behavioral Ads: Social Networks ' Latest Legal Pitfall? , Law.COM, Mar.
25, 2008, http://www.law.com/jsp/lawtechnologynews/pubArticleLT.jsp? id=900005506762; Jason
Snell, Nine Twitter Tips for Business: How to Strike the Right Balance When Using This Popular
Messaging Service, MAC WORLD, May 4, 2009, http://www.macworld.com/article/140254/2009/
05/twitterdos.html.

1 1 . Survey Reveals Growth in Online Professional Networking Among Legal Professionals,
Appetite for Lawyer-Specific Networking Solutions, July 10, 2008, http://www.businesswire.com/
news/home/200807 1 0005598/en.

12. Id. (reporting membership of 25-35 (67%), 36-45 (49%), and 46-55+ year olds (36%)).

13. See Nicolas P. Terry & Leslie P. Francis, Ensuring the Privacy and Confidentiality of
Electronic Health Records, 2007 U. ILL. L. REV. 681, 691-96; see also Leslie P. Francis, The
Physician-Patient Relationship and a National Health Information Network, J.L. MED. & ETHICS
(forthcoming).

14. See generally Nicolas P. Terry, Personal Health Records: Directing More Costs and
Risks to Consumers?, 1 DREXELL. Rev. 216 (2009).



288 INDIANA LAW REVIEW [Vol. 43:285



health-related decision-making. Here, the inquiry is how our legal, ethical, and
regulatory models will react as the social network phenomenon overlaps with
traditional healthcare relationships and businesses.

The analysis draws on the limited extant law dealing specifically with social
network interactions and the law and ethics literature dealing with existing
computer-mediated interactions between physicians and patients. The legal
analysis principally is concerned with privacy and confidentiality constructs,
described below as the "Law of Boundaries." The Article explores how
participation in online social networks may blur boundaries between personal and
professional relationships or commentary, while making available "private"
information in what only appears to be a secluded area. The Article also
examines the potential for amelioration of risks with the currently under-utilized
privacy and security settings provided by the online social networks.

The Law of Boundaries is applied to some specific scenarios where category
breakdown may be detected: (1) physician social information online, (2) patient
health-related information online, (3) physicians and patients as "friends," and
(4) physicians "tweeting" or posting about their work. These online scenarios
challenge the perceptions, expectations, and sense of trust that are the properties
of the offline physician-patient relationship. The application of legal, ethical,
and regulatory models to these "worlds collide" phenomena casts doubts on the
appropriateness of some professional activities and the online social activities of
some physicians. Additionally, the Article identifies the considerable risks run
by online patients who post about or otherwise signal their health status. Among
several conclusions applicable to these social network scenarios it is suggested
that the Law of Boundaries must evolve to protect non-public data or secluded
areas established by users of social network sites.

I. Social Networks

The most popular social network sites include Facebook, MySpace, Twitter,
and Linkedln. 15 Facebook has in excess of 250 million registered users 16 and its
subscribers spend more than three billion minutes per day on the web site. 17 Of
these services Facebook 18 and Twitter 19 currently show the largest growth.



15. Posting of Andy Kazeniac to Compete.com, http://blog.compete.com/2009/02/09/
facebook-MySpace-twitter-social-network/ (Feb. 9, 2009).

1 6. Erick Schonfeld, Facebook Is Now the Fourth Largest Site in the World, TechCrunch,
Aug. 4, 2009, http://www.techcrunch.com/2009/08/04/facebook-is-now-the-fourth-largest-site-in-
the-world (reporting 340 million unique visitors).

17. Owen Thomas, Facebook at 5: What the Future Holds, Feb. 4 2009, http://valleywag.
gawker.com/5145975/facebook-at-5-what-the-future-holds.

18. See Schonfeld, supra note 16.

19. Kelly Gregor, Twitter Takes Top Growth Spot, Nat'l Bus. Rev. 24/7, Jan. 27, 2010,
http://www.nbr.co.nz/article/twitter-takes-top-growth-spot-117639. Compare Top 10 Social-
Networking Websites & Forums — February 2009, http://www.marketingcharts.com/ interactive/top-
10-social-networking-websites-forums-february-2009-8286/ (showing that Twitter was not a top



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 289



Eleven percent of online American adults use Twitter or features on social
network service sites to share information or read "updates" from others. 20 The
use of social network sites is now so pervasive that we may well be on our way
to what Anita Allen described as "the technological conceit of twenty-first
century ' lifelogging. ' " 2 1

Our contemporary concept of social networking is a subset of computer-
mediated (or computer network-mediated) communication. This latter, broader
term includes email, blogs, web sites, and instant messaging. 22 These extant
models of computer network-mediated communication will inform the discussion
that follows. However, they lack the distinctive features of social network
services.

A. Properties of Social Networks

According to one court, "[ojnline social networking is the practice of using
a Web site or other interactive computer service to expand one's business or
social network." 23 Boyd and Ellison provide a granular definition: "[W]eb-based
services that allow individuals to (1) construct a public or semi -public profile
within a bounded system, (2) articulate a list of other users with whom they share
a connection, and (3) view and traverse their list of connections and those made
by others within the system." 24

There are two broad categories of computer-mediated social networks. First,
there are those, like Linkedln, 25 that emphasize professional or business



ten social networking site in Feb. 2009), and Marketing Charts, Top 10 Social-Networking
Websites & Forums — March 2009, http://www.marketingcharts.com/interactrve/top-10-social-
networking-websites-forums-february-2009-2-8749/ (showing that by March 2009 Twitter was the
eighth most popular social networking site), with Marketing Charts, Top 1 Social-Networking
Websites & Forums — October 2009, http://www.marketingcharts.com/interactive/top-10-social-
networking-websites-forums-october-2009- 1 1 099/ (showing that Twitter was the sixth most popular
social networking site in October 2009).

20. Lenhart & Fox, supra note 9, at 1 .

2 1 . Anita L. Allen, Dredging up the Past: Lifelogging, Memory, and Surveillance, 75 U. Cm
L. Rev. 47, 48 (2008).

22. A more expansive list of social network services or sites could be drawn up. For example,
for some the fact that viewers rate content on YouTube, share opinions about products on
Amazon.com, or rate each other on Ebay.com might qualify these sites as social networks.

23. Doe v. MySpace Inc., 528 F.3d 413, 415 (5th Cir.), cert, denied, 129 S. Ct. 600 (2008);
see also Liveuniverse, Inc. v. MySpace, Inc., No. CV 06-6994 AHM CRZx, 2007 WL 6865852
(RZx), at *1 (CD. Cal. June 4, 2007) ("Social networking websites allow visitors to create personal
profiles containing text, graphics, and videos, as well as to view profiles of their friends and other
users with similar interests."), aff'd, 304 F. App'x 554 (9th Cir. 2008).

24. danah m. boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and
Scholarship, 13 J. COMPUTER-MEDIATED COMMC'N, at art. 11 (2007), http://jcmc.indiana.
edu/vol 1 3/issue 1 /boyd.ellison.html.

25. See About Us, http://press.linkedin.com/about (last visited Feb. 8, 2010) ("Linkedln is



290 INDIANA LAW REVIEW [Vol. 43:285



networking. Second, there are those, such as Bebo 26 (a site popular in Europe 27 ),
MySpace, 28 and Facebook, 29 which leverage the social or friendship properties
of pre-existing, predominately offline networks of intimates, friends, and
acquaintances.

Boyd and Ellison explain this distinction between networking and networks
as follows:

What makes social network sites unique is not that they allow
individuals to meet strangers, but rather that they enable users to
articulate and make visible their social networks. . . . [Participants are
not necessarily "networking" or looking to meet new people; instead,
they are primarily communicating with people who are already a part of
their extended social network. 30

Thus, a typical Linkedln subscriber seeks to leverage the contacts of contacts
to increase the range of their professional networking. But a Facebook user
primarily seeks to communicate with an existing network of friends. These users
only incidentally (or at least initially), leverage the virtual networks of his or her
friends to identify and then "friend" participating friends from their existing real
world network. 31 Empirical data seems to bear out this distinction. Adults use
professional sites sparingly (e.g., 6% of adults use Linkedln), but they use them
almost exclusively for professional purposes. Social network sites such as
Facebook and MySpace see more mixed use, but adults tend to use them far more



an interconnected network of experienced professionals from around the world, representing 150
industries and 200 countries. You can find, be introduced to, and collaborate with qualified
professionals that you need to work with to accomplish your goals.").

26. See bebo.com, About Bebo, http://www.bebo.eom/c/about (last visited Feb. 8, 2010)
("Bebo is a popular social networking site which connects you to everyone and everything you care
about. It is your life online — a social experience that helps you discover what's going on with your
world and helps the world discover what's going on with you.").

2 7 . See GeoffDuncan, Bebo Launches Five European Localizations, DIGITAL TRENDS, Mar.
1 6, 2009, http://digitaltrends.com/international/bebo-launches-five-european-localizations.

28. See MySpace Quick Tour, http://www.MySpace.com/index.cfm?fuseaction=userTour.
home (last visited Oct. 9, 2009) ("MySpace is a place for friends; MySpace is Your Space;
MySpace keeps you connected.").

29. See Facebook, http://www.facebook.com/ (last visited Oct. 9, 2009) ("Facebook helps
you connect and share with the people in your life.").

30. boyd & Ellison, supra note 24.

3 1 . One report notes:

Facebook members seem to be using Facebook as a surveillance tool for maintaining

previous relationships, and as a "social search" tool by which they investigate people

they've met offline. There seems to be little "social browsing," or searching for users

online initially with the intention of moving that relationship offline.

Cliff Lampe et al., A Face(book) in the Crowd: Social Searching vs. Social Browsing, PROC. OF

the 2006 20th Anniversary Conf. on Computer Supported Cooperative Work (2006),

http://portal.acm.org/citation.cfm?id=l 1 80901 .



!0 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 29 1



for social purposes. 32

The reason for drawing this admittedly imprecise distinction between the two
types of service is that these uses or functions will tend to drive differential
expectations of privacy, confidentiality, and appropriateness of communications.
It is assumed, for example, that those who participate in true professional
networking services tend to be more guarded and finite in their engagements. In
contrast, those who post or share "what's on [their] mind" on Facebook generally
do so with the expectation that they are communicating with a group of friends,
an extant social group. Although social networking and social network services
function quite similarly, this Article concentrates on the latter group. As such,
it ignores social network sites designed solely for healthcare professionals 33 or
those that cater to specific diseases or illnesses. 34

A user of a social network site registers with the service and then creates a
profile. This profile functions as the link between the user's real world and
virtual world personas. This profile may include a variety of rich media
including photographs, videos, and links. Typically, the service will have some
kind of search engine that will discover existing real world friends who have a
virtual presence in the social network. Usually, a user can opt-out from being so
discoverable. Once a user identifies someone with whom they wish to virtually
network, they send (e.g., on Facebook) a "friend" request. The network loop is
not established until the putative friend accepts that request. 35

Twitter 36 is similar to the character-limited news feed ("What's on your
mind?") popularized by Facebook. But it differs from other social networks
because its users are less likely to restrict the viewing of their posts to a restricted
group of existing contacts, although that is possible. 37 Users of Twitter "tweet"
in bites of up to 140 characters what they are doing or thinking at any particular
time. Other Twitter subscribers may then follow these postings. Thus, those
who are interesting because they are famous, or famous because they are
interesting, have their posts followed by other subscribers, frequently in far larger
numbers than Facebook friends. Thus, Twitter shares characteristics with web
(particularly blog) sites in that it tends to operate as a broadcast or one-to-many
service. As predominantly used, Twitter lacks a key property of other popular
social networks in that the publisher of a message typically will not control who



32. Lenhart, supra note 2, at 6.

33. See, e.g., Sermo, http://www.sermo.com/ (last visited Oct. 10, 2009).

34. See, e.g., PatientsLikeMe, http://www.patientslikeme.com (last visited Oct. 10, 2009);
see Jeana H. Frost & Michael P. Massagli, Social Uses of Personal Health Information Within
PatientsLikeMe, an Online Patient Community: What Can Happen When Patients Have Access
to One Another 's Data, 10 J. MED. INTERNET RES., at el 5 (2008), http://www.jmir.Org/2008/3/el 5/.

35. See generally boyd & Ellison, supra note 24 (describing social networking sites'
procedures for participation).

36. See About Twitter, http://twitter.com/about ("Twitter is a real-time information network
powered by people all around the world that lets you share and discover what's happening now.").

37. Just as it is possible, but less likely, that a user will open his or her Facebook page to the
public.



292 INDIANA LAW REVIEW [Vol. 43:285



can see that post (i.e., it is one-directional rather than bi-directional 38 ); although
it does resemble a service such as Facebook, in that the consumer can choose
whether or not to subscribe to posts from that other user. 39

B. Use, Perceptions, and Expectations

Basic Internet communication tools are either limited in their reach or
obvious as to their broadcast nature. Notwithstanding the occasional breakdown
when a user ill advisedly clicks "reply to all" or "reply" on a listserv, email is,
and is perceived to be, a one-to-one communication. In practice, email may be
no more private than sending a postcard through the mail because it could
potentially be read by many, but few postcards are read by unintended recipients.
At the other extreme, the publisher of content to a web page or a traditional blog
should realize that this is a one-to-many broadcast.

In the much-discussed world of Web 2.0, where the creation or sharing of
content by users rather than traditional content publishers is emphasized, 40 online
search, communication, and networking tools allow those online to apply a
virtual overlay to their offline lives. Thus, a user who enters an address into
Google Maps creates a representation of that real place. When that user enables
location services on a mobile device 41 and allows the online service to share that
data with others, the user's real and virtual world locations are overlaid.
Similarly, when a user converses on a social network service he or she is
mapping his or her virtual conversation to his or her real network of friends and
acquaintances. Facebook refers to this as "the digital mapping of people's real-
world social connections." 42 However, the potential consequences of such virtual
communication are of a different order.

Real world, or offline, communications are beset by inefficiencies and noise



38. See boyd & Ellison, supra note 24.

39. The terrain is further complicated by interactions between these services. For example.
Twitter users can link their "tweets" to Facebook so that they are displayed in Facebook as news
feeds. See Tweeter, Tweeter Is on Facebook, http://www.facebook.com/apps/application.php?id=
16268963069 (last visited July 10, 2009).

40. See Jessi Hempel, Web 2.0 Is So Over. Welcome to Web 3.0, FORTUNE, Jan. 8, 2009,
http://money.cnn.eom/2009/0 l/07/technology/hempel_threepointo.fortune/index.htm; see also
Gunther Eysenbach, Medicine 2.0: Social Networking, Collaboration, Participation,
Apomediation, and Openness, 1 J. MED. INTERNET RES., at e22 (2008), http://www.jmir.org/2008/
3/e22; Benjamin Hughes et al., Health 2.0 and Medicine 2.0: Tensions and Controversies in the
Field, 10 J. Med. Internet Res., at e23 (2008), http://www.jmir.org/2008/3/e23/; Rick McLean
et al., The Effect of Web 2.0 on the Future of Medical Practice and Education: Darwikinian
Evolution or Folksonomic Revolution? , 1 87 Med J. AUSTL. 174, 174(2007); Tim O'Reilly, What
Is Web 2. 0? Design Patterns and Business Models for the Next Generation of Software, O'REILLY,
Sept. 30, 2005, http://www.oreilly.de/artikel/web20.html.

41. See, e.g., Apple, Phone and iPod Touch: Understanding Location Services, http://
support.apple.com/kb/HT1975 (last visited Feb. 8, 2010).

42. Facebook, Press Room, http://www.facebook.com/press.php (last visited Oct. 1 0, 2009).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 293



that have the effect of limiting the reach of the participants' communications.
The context of the listening group 43 will, or should, modulate the content of the
conversation. Social network services break this paradigm because they
encourage and operationalize the posting of intimate or private moments or
thoughts on the user's news feed, wall, or in a tweet. Services such as Facebook
confuse the communication model for the user and potentially lead to category
breakdown because they offer the opportunity for apparently one-to-one
conversations 44 that are nevertheless open to all in a group (a broadcast context).

This initial category breakdown — or state of pseudo-seclusion — is
exacerbated in online social networks because the smaller, inefficient, and
segregated social categories we tend to have in the real world (relatively distinct
categories of intimates, co-employees, co-professionals, etc.) may become
blurred when we create larger aggregated friend groups from several categories.
For example, a Facebook user's network of friends likely will start with a small
number of intimates. As the social network service's tools for finding friends are
used, 45 the properties of the friended group may have changed dramatically to
include co-workers, employers, or customers.

It may be the case that users of social network sites are "quite oblivious,
unconcerned, or just pragmatic about their personal privacy." 46 Equally, such
users may be willing to trade their private information knowingly, usually only
shared with intimates, in order to increase their number of friends and build new
online or offline relationships. 47 In their study of information sharing on
Facebook, Gross and Acquisti examined the tenuous application of social
network theory 48 to online networks. As they observed, although offline social
networks may consist of extremely diverse relationships from intimates to
acquaintances, online networks can "reduce these nuanced connections to
simplistic binary relations: 'Friend or not.'" 49 Although the context changes as



43. For example, an audience of intimates or co-workers around the water-cooler would be
a listening group.

44. An example of this would be a wall comment.

45. Examples of friend finding tools include Facebook' s ability to allow users to data mine
one's Gmail address book or "friending" mere acquaintances who are friends of friends.

46. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social
Networks (The Facebook Case), (ACM) WORKSHOP IN PRIVACY IN ELECTRONIC Soc'Y 71, �� 4
(2005).

47. See, e.g., Catherine Dwyer et al., Trust and Privacy Concern Within Social Networking
Sites: A Comparison of Facebook and My Space, AMS. Conf. ONlNFO. SYSTEMS 2007 PROC, Paper
339, http://aisel.aisnet.org/amcis2007/339.

48. This sociological construct identifies the properties of social relationships as "nodes" and
"ties" and the relative strengths (e.g., weak or strong) of the latter. See Social Network, in
WIKIPEDIA, http://en.wikipedia.org/wiki/Social_network.

49. Gross & Acquisti, supra note 46, �� 2.1 (quoting d. boyd, Friendster and Publicly
Articulated Social Networking, in 2004 CONF. ON Hum. FACTORS & COMPUTING SYS.) As
discussed below, Facebook now permits disaggregation of "friends" into multiple categories that
can then be set with different permissions. However, there is no indication yet as to how many



294 INDIANA LAW REVIEW [Vol. 43 :285



the user moves from offline to online discourse and data sharing, the user may
not be fully aware of the category blurring and fail to appropriately modulate the
content.

Social network services also impact how users interact with their posted data
or content due to a shift from taxonomy, top-down indexing by experts or content
owners, to folksonomy (bottom-up indexing or "social tagging" by users). 50
Consider the participant in our water cooler conversation who shows a recent
photograph to the other participants. Our participant likely will contextualize the
image (e.g., "last weekend-a quiet celebration with friends"). This taxonomy (or
metadata) will exclusively index that image for the other participants. Now,
consider the same image uploaded to the participant's social network site.
Because the site allows tagging of content by other users, folksonomy, the
content owner loses exclusive control of the indexing of the image. Now, a
"friend" may tag (add metadata to) the image (say, by adding information as to
the identity of other participants) or comment on it. Thus, an image that was
benign in the water-cooler setting may be re-indexed by other users (e.g., "drunk
at medical school reunion;" or "so, that's why you missed work"). As follows
from the discussion above, this re-indexing occurs in a context that allows
broadcast to a much larger group consisting of multiple offline but aggregated
online social categories.

C. Social Network Privacy and Security Settings

Most social network services provide tools for making data or
communications less public. Facebook allows users to choose which information
to include in their profiles and limit which users can see that information. 51
MySpace and Twitter similarly allow users to control who can see their profile
information. 52 Appropriately risk-averse users may also choose to opt out of the
popular social network sites and only post on networks restricted to other
licensed physicians. 53 Indeed, users with multiple profiles tend to create them on
different sites. Of social network site users who have multiple profiles, 25% do
so in order to disaggregate their followers, for example by keeping professional



users opt to use this feature.

50. See, e.g., Daniel H. Pink, Folksonomy, N.Y. TIMES Mag., Dec. 1 1 , 2005, at 69, available
at http://www.nytimes.eom/2005/12/l 1 /magazine/ 1 1 ideas 1-21. html?_r=z; J. Trant, Studying Social
Tagging and Folksonomy: A Review and Framework, 10 J. DIGITAL INF. (2009); see also McLean
et al., supra note 40, at 175.

5 1 . Facebook, Facebook's Privacy Policy, http://www.facebook.com/policy.php (last visited
Dec. 28, 2009).

52. See MySpace, About Settings, http://www.myspace.com/Modules/ContentManagement/
Pages/page.aspx?placement=privacy_settings, (last visited Oct. 10, 2009); Welcome to Twitter
Support!, http://help.twitter.com/portal (last visited Oct. 10, 2009).

53. See, e.g., Sermo, http://www.sermo.com (last visited Dec. 28, 2009). "Sermo uses a
proprietary technology to verify physicians' credentials in real-time." Get to Know Sermo,
http://www.sermo.com/about/introduction (last visited Feb. 8, 2010).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 295



relationships on one site and personal ones on another. 54

Popular social network sites offer an array of privacy and security strategies.
For example, by using included private modes of communication, users can
initiate secure communication without adjusting privacy settings at all. Thus,
Facebook, MySpace, and Twitter allow for private messages to be exchanged
directly between users, 55 limiting more sensitive conversations to a specific
recipient. Similarly, Facebook allows users to exchange real-time instant
messages that can only be viewed temporarily, 56 lessening concerns about
communication records being used later in a negative manner.

Recently distinguishing itself from competitors, Facebook now permits
disaggregation of "friends" into multiple categories that can then be set with
different permissions. 57 Utilizing this feature should allow a user to enjoy more
relaxed security settings with intimates while benefiting from tightened privacy
control for professional contacts. 58 Simply educating users about these settings
can radically reduce exposure of private or semi-private information. For
example, the authors of the Florida medical student and resident survey discussed
below 59 reported that, "telling students to increase their privacy settings on
Facebook yielded an 80% reduction in publicly visible accounts." 60

However, such risk management strategies are seriously under-utilized
because so few users change the "open" default privacy and security settings on
social network sites. 61 A study conducted by MIT students found that over 70%
of the Facebook profiles examined were open to the public. 62 This is an alarming
number when considering that a Pew study found that "47% of internet users



54. Lenhart, supra note 2, at 8.

55 . Facebook Help Center: Messages and Inbox, http://www.facebook.com/help/?page : =real»
time406#!/help.php?page=938 (last visited Feb. 8, 2010); see also MySpace, Can You Send
Messages to Several Friends at a Time?, http://faq.myspace.com/app/answers/detail/a_id/262/
kw/myspace%20mail/c/%20/r_id/ 100061, (last visited Oct. 11, 2009); Twitter Support,
http://help.twitter.com/portal, (last visited Oct. 11, 2009).

56. Facebook Help Center: Chat: How to Use the Chat Feature, http://www.facebook.com/
help.php?page=824 (follow "How do I delete or look through my chat history? Is it saved
permanently?" hyperlink), (last visited Oct. 1 1 , 2009) ("You cannot view older conversations or
conversations with friends who are not currently online.").

57. See also Posting of Alison Driscoll to Mashable: The Social Media Guide,
http://mashable.com/2009/04/28/facebook-privacy-settings/ (Apr. 28, 2009).

58. See generally Posting of Marshall Kirkpatrick to ReadWriteWeb, http://www.
readwriteweb.com/archives/a_closer_look_at_facebooks_new_privacy_options.php (June 29, 2009,
12:37).

59. See infra text accompanying note 267.

60. L.A. Thompson et al., Author Reply, J. Gen. INTERNAL Med. 2 1 56, 2 1 56 (2008) (citation
omitted).

6 1 . Compare Gross & Acquisti, supra note 46, �� 5, with Lenhart, supra note 2, at 9 (reporting
sixty percent of adult users restrict access to their profiles to friends).

62. Harvey Jones & Jose Hiram Soltren, Facebook: Threats to Privacy 13 (2005),
http://groups.csail.mit.edU/mac/classes/6.805/student-papers/fall05-papers/facebook.pdf.



296 INDIANA LAW REVIEW [Vol. 43:285



look online for information about doctors." 63 Further, the MIT study was
conducted by using software to automatically examine the information available
in user profiles. 64 Even temporarily unsecured profiles have the potential of
being subject to mass data collection, putting users at risk of having their
information permanently stored by third-party data aggregators. 65

Even proper and consistent use of privacy or security settings has some
limitations. Needless to say, such privacy and security settings may, as with any
other type of online data storage, be defeated by hackers. 66 However, social
network sites are not subject to the same comprehensive security requirements
as HIPAA mandates for healthcare entities. 67 More importantly, data that is de-
identified or rendered pseudonymous may be re-identified if the user has the
same profile picture or other demographic data both on one secure and another
insecure profile. 68 Users may also defeat the purpose of privacy controls by
exercising poor judgment in choosing whom to "friend." 69 For example, a user
could have a secured profile but post a comment on another user's public profile
that anyone can see.

Ultimately the solution to many but not all of the issues discussed in this
article will themselves be technological. Larry Lessig's view of code, or system,
architecture holds true here, and suggests that features of the architecture of
social network sites will "constrain some behavior by making other behavior
possible, or impossible." 70 Changes in the privacy and security settings of
Facebook and other social networking sites will likely be the most efficient
"regulation" of these issues, certainly more efficient than case-by-case
application of the law of boundaries. As the potential for employment or the
availability of health insurance are publicly seen as dependent on more
responsible online behavior, so the demand for better architecture will increase,
as will its utilization, and the spiral will continue until only outlying scenarios



63. Susannah Fox & Sydney Jones, The Social Life of Health Information, Pew Internet
& American Life Project 35 (2009), http://www.pewinternet.0rg/~/media//Files/Rep0rts/
2009/PIP_ Health_2009.pdf.

64. Jones & Soltren, supra note 62, at 1 1.

65. Id.

66. See, e.g. , Claire Cain Miller & Brad Stone, Twitter Hack Raises Flags on Security, N. Y.
Times, July 15, 2009, http://www.nytimes.eom/2009/07/l 6/technology/internet/16twitter.html?ref=
technology; Posting of Chris Dannen to Fast Company.com, http://www.fastcompany.
com/blog/chris-dannen/techwatch/1 0-questions-answered-facebook-attacks (May 1 5, 2009 12:30).
Hacking of social network sites (or even government surveillance of same) is outside the terms of
reference of this article. In such cases statutory protections involving criminal and civil liability
may apply, for example, under the Electronic Communications Privacy Act of 1 986. See 1 8 U.S.C.
���2510-2522(2006).

67. See 45 C.F.R. ��� 160, 162, 164 (2009).

68. Gross & Acquisti, supra note 46, �� 4.2.

69. See Jones & Soltren, supra note 62, at 20 (explaining that their study found 28.7% of
Facebook users "friend strangers on occasion").

70. Lawrence Lessig, Code and Other Laws of Cyberspace 89 ( 1 999).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 297



remain.

In parallel to architectural evolution facilitated by code innovation and
prompted by market pressures from competitors or consumers, social network
services may find themselves subject to low levels of what Anita Allen has, in
analogous situations, termed state "coercion." 71 Thus, the FTC could exert
marginal coercion by opening an investigation into social networking site
defaults or, as is happening in Canada, apply additional yet still minimal coercion
by demanding specific changes to the sites' settings. 72

Whatever the drivers, changes in architecture clearly are foreseeable but are
likely to be incremental. The fact that regulation of the physician-patient
relationship and the protection of patient information are so entrenched in our
health law models (common law, statute, constitutional law, command-control,
ethical codes, etc.) makes it unlikely that courts and regulators will wait too long
for better "code."

II. The Legal (and Not So Legal) Framework

There are a multitude of emerging legal issues surrounding social network
sites and the vast amounts of data contained on them. For example, social
network data is of interest to anti-terrorist agencies in much the same way as
email and telephone archives; 73 an Australian court allowed lawyers to serve
notice of a default judgment via Facebook on two borrowers who had defaulted
on a loan; 74 and social network postings have come under scrutiny in cases of
jurors apparently researching and discussing cases on Twitter and Facebook. 75



7 1 . See Anita L. Allen, Unpopular Privacy: The Case for Government Mandates, 32 OKLA.
City U. L. Rev. 87, 96-98 (2007) (discussing FTC regulation of telemarketing calls through the
National Do Not Call Registry).

72. See, e.g., Press Release, Office of the Privacy Comm'r of Can., Facebook Needs to
Improve Privacy Practices, Investigation Finds (July 1 6, 2009), available at http://www.priv.gc.ca/
media/nr-c/2009/nr-c_090716_e.cfm. Facebook responded with proposed changes to its policies
and code; see Posting of Claire Cain Miller to Bits, http://bits.blogs.nytimes.com/2009/08/27/
facebook-moves-to-improve-privacy-and-transparency (Aug. 27, 2009, 13:52 EST).

73. See, e.g., Social Network Sites 'Monitored', BBC NEWS Online, Mar. 25 2009,
http://news.bbc.co.Uk/2/hi/uk_news/politics/7962631.stm (discussing telecommunications data
retention under European Union directive).

74. Noel Towell, Lawyers to Serve Notices on Facebook, SYDNEY MORNING HERALD, Dec.
1 6, 2008, http://www.smh.com.au/news/technology/biztech/lawyers-to-serve-notices-on-
facebook/2008/12/16/1229189579001.html.

75. John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. TIMES, Mar. 1 8,
2009, at Al, available at http://www.nytimes.com/2009/03/18/us/18juries.html; Scott Michels,
Cases Challenged over 'Tweeting' Jurors: Lawyers Say They Will Appeal Verdicts After Jurors
Comment on Facebook, Twitter, ABC NEWS, Mar. 17, 2009, http://abcnews.go.com/Technology/
Story?id=7095 1 8&page = 1 ; Facebook, Twitter Throw US Legal System into Disarray, ABC NEWS
(Australia), Mar. 1 8, 2009, http://www.abc.net.aU/news/stories/2009/03/l 8/2520009.htm; see also
Kate Moser, Court Lays Down Law on Jury Internet Use, RECORDER, Sept. 9, 2009,



298 INDIANA LAW REVIEW [Vol. 43:285



Even the status of the very media and data uploaded to social network sites is
somewhat uncertain. For example, in February 2009 Facebook changed its terms
of use, and for the first time suggested that it had persisting rights in some user-
submitted content. 76 Although Facebook changed back to its earlier terms of
use, 77 even under the current terms of use some user-uploaded content may
persist (when shared with other subscribers or in back-ups) even when deleted
by the user. 78

This Article concentrates on just one risk-laden aspect of the use of such
networks — the potential for category breakdown between social and healthcare
professional uses and its implication for social and professional data. Given that
we are concerned primarily with private actors (users of social network sites and
those who would view, process, or aggregate user data), the reflexive response
is to turn to the Law of Boundaries as the exclusive legal model. Within this
concept, the common law of privacy governs social boundaries, while a more
complex set of common law, ethical, and regulatory provisions governs
professional boundaries. As will be seen, this intuitive response translates into
an accurate picture of both the legal structures most likely to be applicable and
the legal protection choices of those dissatisfied with treatment of their social
network data. But the Law of Boundaries does not provide the exclusive options
for dealing with category breakdown. Other options are present that may prove
more or less attractive as these (and related) online interactions develop.



http://www.law.com/flat/ltn/ 1202433656715.html (describing proposed San Francisco Superior
Court rule on subject).

76. Brian Stelter, Facebook 's Users Ask Who Owns Information, N. Y. TIMES, Feb. 1 7, 2009,
at B3, available at http://www.nytimes.com/2009/02/17/technology/internet/17facebook.html.

77. Facebook Backs Down, Reverses on User Information Policy, CNN.COM, Feb. 1 8, 2009,
http://www.cnn.com/2009/TECH/02/18/facebook.reversal/index.html.

78. Facebook, Statement of Rights and Responsibilities, http://www.facebook.com/terms.php.
2. Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control
how it is shared through your privacy and application settings. In addition:

1 . For content that is covered by intellectual property rights, like photos and
videos ("IP content"), you specifically give us the following permission,
subject to your privacy and application settings: you grant us a non-exclusive,
transferable, sub-licensable, royalty-free, worldwide license to use any IP
content that you post on or in connection with Facebook ("IP License"). This
IP License ends when you delete your IP content or your account unless your
content has been shared with others, and they have not deleted it.

2. When you delete IP content, it is deleted in a manner similar to emptying
the recycle bin on a computer. However, you understand that removed
content may persist in backup copies for a reasonable period of time (but will
not be available to others).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 299



A. Options: Property, Liability, Inalienability, and Soft Law

The conventional wisdom is that interests in personal health data are
protected by liability not property rules. Thus, health information is not directly
protected as, for example, an intellectual property system might wall-off some
scientific data. Rather, the law of boundaries (HIPAA included) places
behavioral limits on those who would obtain or who are entrusted with health
information. 79 Even some data protection rules that appear to flirt with property,
such as rules that exclude regulation of de-identified personal health data, 80 are
better understood as liability rules that provide safe harbors for data custodians
who behave in certain ways. 81

There are compelling arguments that property rules are underused in
protecting personally identifiable information. 82 However, of more practical
interest in the context of this article is the opening of a "third front," in addition
to property or liability constructs: the option of protecting personal information
on social networks with some form of inalienability rule. 83

Stated broadly inalienability denotes non-transferability of an entitlement
(herein personally identifiable data) even with (the data subject's) consent. Here
Margaret Jane Radin 's unpacking of inalienability is helpful as is her
identification of "market-inalienability" that "places some things outside the
marketplace but not outside the realm of social intercourse." 84 With a targeted
inalienability regime it is possible to avoid the on (property) and sometimes off
(liability) approaches to tradability in personal information. Specifically, we can
impose bright line rules that target specific would-be uses or users of the data.

Recent developments in health information regulation suggest a growing
interest in this targeted approach. For example, the recently-enacted federal
Health Information Technology for Economic and Clinical Health Act
(HITECH) 85 provides for market inalienability regarding information contained



79. See generally NICOLAS P. TERRY, LEGAL ISSUES RELATED To DATA ACCESS, POOLING,

and Use in Healthcare Data in Public Good or Private Property? Ch. 4 (National Institutes
of Health, forthcoming 2010).

80. See, e.g., 45 C.F.R. �� 160. 103 (2009) (defining protected health information as that which
is "individually identifiable").

81. See, e.g., id. �� 164.5 14(e)(3)(i) (de-identifying the data or complying with "limited data
set" rules).

82. See Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object,
52 Stan. L. Rev. 1373 (2000) (dissecting the inapplicability of property as itself conclusory of the
property and liberty rhetoric of those who would trade in the data of others).

83 . See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules,
and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972); Margaret Jane
Radin, Market-Inalienability, 100 Harv. L. Rev. 1849 (1987); Paul M. Schwartz, Property,
Privacy, and Personal Data, 117 HARV. L. Rev. 2055 (2004).

84. Radin, supra note 83, at 1853.

85. See infra note 240 and accompanying text.



300 INDIANA LAW REVIEW [Vol. 43:285



in a patient's electronic medical record. 86 Similarly, a handful of states have
targeted specific uses of prescribing information collected by data aggregators
on behalf of pharmaceutical manufacturers desirous of more efficient marketing
of their drugs to physicians. 87 The data aggregators initially were successful in
arguing that such statutes violated their commercial speech rights. 88 However,
the First Circuit recently validated the regulatory approach when it characterized
the limited target prohibition in the New Hampshire statute as restricting
conduct, not speech. 89

Moving forward, inalienability models are useful if we end up concluding
that we want to wall-off the social network playground in a less extreme or more
targeted manner than by using the Law of Boundaries. Inalienability rules could
prohibit the acquisition of some online information by identified cohorts (for
example, health insurers) or particular uses of such data (for example,
employment-related decisions). 90

Finally, in examining the palette of options for dealing with the interaction
of social network information and the physician-patient relationship, we must
consider soft law models of regulation. Soft law is notoriously difficult to
define. 91 Previously discussed architectural or code approaches to data protection
driven by standards bodies or industry associations likely would qualify for the
soft law description. But in the present context the most important sources of
non-legal, soft regulation are professional ethics codes; provisions of which will
inform the discussion that follows.

Inalienability rules and soft law may not operate in series with liability rules
(such as the Law of Boundaries). Just as common law rules tend to exhibit
cycles of on/off switches punctuated by exceptionalism, 92 so highly targeted
inalienability or soft law rules may occupy a transitional space while courts
determine longer-term entitlements. Equally, narrowly constructed inalienability
rules that are consistent with emerging architectural and soft law constructs in,
say, being increasingly protective of social network data likely will propel the



86. Health Information Technology for Economic and Clinical Health Act, 42 U.S.C.A. ��
17935(d) (effective Feb. 17, 2010).

87. See, e.g., N.H. Rev. Stat. Ann. �� 318:47-f (2009); Me. Rev. Stat. Ann. 22 �� 171 ]-E
(Supp. 2009).

88. See, e.g., IMS Health, Inc. v. Ayotte, 490 F. Supp. 2d 163 (D.N.H. 2007), rev 'd and
vacated, 550 F.3d 42 (1st Cir. 2008); IMS Health Corp. v. Rowe, 532 F. Supp. 2d 153 (D. Me.
2008).

89. See IMS Health Inc. v. Ayotte, 550 F.3d 42, 52 (1st Cir. 2008), cert, denied, 1 29 S. Ct.
2864 (2009).

90. See, e.g., Dina Epstein, Have I Been Googled?: Character and Fitness in the Age of
Google, Facebook, and YouTube, 2 1 Geo. J. LEGAL ETHICS 715, 727 (2008) (arguing that the ABA
should outlaw consideration of social network data for character and fitness determinations).

91 . See, e.g., Anna di Robilant, Genealogies of Soft Law, 54 Am. J. COMP. L. 499, 500-01
(2006).

92. See Nicolas P. Terry, Collapsing Torts, 25 CONN. L. Rev. 7 1 7, 736-38 ( 1 993), building
on Edward H. Levi, An Introduction to Legal Reasoning 8-27 (1949).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 301



courts utilizing conventional boundary law mechanisms towards a similarly
protective stance.

B. The Law of Boundaries: Privacy Torts and Breach of Confidence

The Restatement' s black-letter law of privacy fails to provide any general or
comprehensive right of privacy. Rather, the common law of privacy consists of
a group of nominate, discrete, and limited tort causes of action, somewhat
unconvincingly bundled together in the RESTATEMENT (SECOND) OF TORTS. 93
Most jurisdictions recognize four causes of action for invasion of privacy:
intrusion, public disclosure (or publicity) of private facts, false light, and
appropriation (or exploitation) of another's name. 94 In the context of this article
the intrusion and publicity torts are of most importance. 95

Both the intrusion and publicity torts are collection-centric. That is, they
provide for legal disincentives to the collection or exploitation of private
information. The intrusion tort focuses on the manner of acquisition of the
information while the publicity tort focuses on the content of the information. 96
In contrast, the action for breach of confidence recognized in most jurisdictions 97
is disclosure-centric and focuses on the underlying relational source of the
information. 98

Today courts tend to view the privacy tort as one of public disclosure of
embarrassing facts. 99 As such it appears to have more in common with the



93. Restatement (Second) of Torts ��� 652A-652I (1977); see, e.g., Reid v. Pierce
County, 961 P.2d 333, 339 (Wash. 1998) (en banc) (adopting �� 652).

94. See Reid, 961 P.2d at 338-39; Estate of Berthiaume v. Pratt, 365 A.2d 792, 795 (Me.
1976); Loft v. Fuller, 408 So. 2d 619, 622 (Fla. Dist. Ct. App. 1981).

95. Of least importance in the context of this article are the "appropriation" (�� 652C) and
"false light" torts. Restatement (Second) of Torts ��� 652C, 652E. Additionally, not all
jurisdictions recognize the "false light" action primarily because it is somewhat duplicative of the
tort of defamation. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1113 (Fla. 2008). But see
Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 326 (Mo. Ct. App. 2008) (joining majority of
jurisdictions in recognizing "false light" claim and navigating overlap with defamation). Although
not of particular relevance to the issues discussed herein, it is likely we will see considerable
appropriation litigation regarding social network sites. See, e.g., Web 2.0 Convergence,
http://www.digitalcommunitiesblogs.com/web_20_convergence/2009/06/social-media-fraud-on-
the-incr.php (June 8, 2009 14:32) (discussing impersonation of media and athletic personalities in
twitter feeds).

96. See Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, 82 COLUM. L.
Rev. 1426, 1441 (1982) (making a content-source distinction).

97. Cf Meade v. Orthopedic Assocs. of Windham County, No. CV064005043, 2007 Conn.
Super. LEXIS 3424, at *14 (Conn. Super. Ct. Dec. 27, 2007) (declining to recognize cause of
action for breach of confidence).

98. See, e.g., Burger v. Blair Med. Assocs., Inc., 964 A.2d 374, 378 (Pa. 2009); McCormick
v. England, 494 S.E.2d 431, 435 (S.C. Ct. App. 1997).

99. Stratton v. Krywko, No. 248669, 2005 Mich. App. LEXIS 23, at * 1 1 (Mich. Ct. App. Jan.



302 INDIANA LAW REVIEW [Vol. 43 :285



disclosure-centric confidentiality duty than the collection-centric intrusion tort.
But it remains collection-centric side of the line because of its predicate that the
defendant acquired private, embarrassing facts about the plaintiff before
disclosure. In contrast, the confidentiality predicate is not one of acquisition by
the defendant — rather, the plaintiff delivered the (typically) private information
to the defendant in the context of a preexisting, fiduciary relationship.

Based as they are on underlying, preexisting relationships, breach of
confidence actions are heavily dependent on context and the properties of the
underlying relationship. In the context of the physician-patient relationship and
the data entrusted in that context, the breach of confidence actions discussed
below are variously based on responsibilities imposed by licensing statutes, the
physician's evidentiary privilege, common law principles of trust, the
Hippocratic Oath, and general principles of medical ethics. 100

1. Intrusion upon Seclusion. — The RESTATEMENT (SECOND) describes the
intrusion upon seclusion tort as follows: "One who intentionally intrudes,
physically or otherwise, upon the solitude or seclusion of another or his private
affairs or concerns, is subject to liability to the other for invasion of his privacy,
if the intrusion would be highly offensive to a reasonable person." 101 Today,
courts require the satisfaction of four elements: (1) an unauthorized intrusion or
prying into plaintiffs seclusion; (2) the intrusion is highly offensive or
objectionable to a reasonable person; (3) the matter upon which the intrusion
occurs must be private; and (4) the intrusion causes anguish and suffering. 102

The intrusion tort originally required a literal, physical intrusion; this is no
longer the case. Courts now tend to look less at the physicality of the defendant's
action and more at the level of its offensiveness. 103 The foundation of the action



6, 2005).

100. Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 590-91 (D.C. 1985).

101 . Restatement (Second) of Torts �� 652B (1966); see also id. �� 652B cmts. a, b:

a. The form of invasion of privacy covered by this Section does not depend upon any
publicity given to the person whose interest is invaded or to his affairs. It consists
solely of an intentional interference with his interest in solitude or seclusion, either as
to his person or as to his private affairs or concerns, of a kind that would be highly
offensive to a reasonable man.

b. The invasion may be by ... . some other form of investigation or examination into
his private concerns, as by opening his private and personal mail, searching his safe or
his wallet, examining his private bank account ....

102. See, e.g., Lovgren v. Citizens First Nat'l Bank of Princeton, 534 N.E.2d 987, 989 (111.
1989) (recognizing requirement that intrusion must be "highly" offensive); Schmidt v. Ameritech
111., 768 N.E.2d 303, 311 (111. App. Ct. 2002); see also Vassiliades, 492 A.2d at 588 (requiring
showing that intrusion be "highly offensive"); Melvin v. Burling, 490 N.E.2d 101 1, 1013-14 (111.
App. Ct. 1986).

103. See, e.g., Bonanno v. Dan Perkins Chevrolet, No. CV 99066602, 2000 Conn. Super.
LEXIS 287, at *4-5 (Conn. Super. Ct. Feb. 4, 2000). See generally Goodrich v. Waterbury
Republican-Am., Inc., 448 A.2d 1317 (Conn. 1 982); Johns v. Firstar Bank, No. 2004-CA-00 1558-



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 303



remains an "intentional and unwarranted acquisition by the defendant." 104

A "wrongful intrusion may occur in a public place, so long as the thing into
which there is intrusion or prying is entitled to be private." 105 "However,
generally, the observation of another person's activities, when that other person
is exposed to the public view, is not actionable. . . ." 106 Thus, training a
surveillance camera on the outside of a house likely will not be an intrusion. 107
However, observing people through holes poked in the ceiling of a restroom, 108
or by use of a camera installed in a medical examination room, 109 clearly satisfy
the element.

As the courts' understanding of an actionable intrusion has become more
existential, their approach has become more nuanced. In the words of one court:
"Assuming that the matter is entitled to be private, then the court will consider
two primary factors in determining whether an intrusion is actionable: (1) the
means used, and (2) the defendant's purpose for obtaining the information." 110
In general, contrasting sharply with other boundary torts, "[i]ntrusion into
solitude appears to be based on the manner in which a defendant obtains
information, and not what a defendant later does with the information." 111

2. Public Disclosure of Private Facts. — The publicity tort, targeting those
who give "publicity to a matter concerning the private life" 112 of the plaintiff,
applies to "[o]ne who gives publicity to a matter concerning the private life of
another" 113 if the data "(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public." 114 Modern courts state a granular
version of the doctrine as requiring:

( 1 ) the fact or facts disclosed must be private in nature; (2) the disclosure
must be made to the public; (3) the disclosure must be one which would
be highly offensive to a reasonable person; (4) the fact or facts disclosed
cannot be of legitimate concern to the public; and (5) the defendant acted
with reckless disregard of the private nature of the fact or facts
disclosed. 115

A key distinction between the intrusion and publicity causes of action is that



MR, 2006 Ky. App. LEXIS 85, at *7-9 (Ky. Ct. App. Mar. 24, 2006).

104. Burger v. Blair Med. Assocs., Inc., 964 A.2d 374, 379 (Pa. 2009).



105
106
Jones
107
108
109
110
111
112
113
114
115



Martin v. Patterson, 975 So. 2d 984, 994 (Ala. Civ. App. 2007) (citations omitted).
Johnson v. Stewart, 854 So. 2d 544, 549 (Ala. 2002) (citing I.C.U. Investigations, Inc.
780 So. 2d 685 (Ala. 2000)).

Schiller v. Mitchell, 828 N.E.2d 323, 327-29 (111. App. Ct. 2005).
See Benitez v. KFC Nat'l Mgmt. Co., 714 N.E.2d 1002, 1033-34 (111. App. Ct. 1999).
Acuff v. IBP, Inc., 77 F. Supp. 2d 914, 919-21 (CD. 111. 1999).
Martin, 975 So. 2d at 994 (citations omitted).

Fernandez- Wells v. Beauvais, 983 P.2d 1006, 1010 (N.M. Ct. App. 1999).
Restatement (Second) of Torts �� 652D (1977).
Id.
Id.
Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 379 (Colo. 1997).



304 INDIANA LAW REVIEW [Vol. 43:285



although the former "requires no showing of publication or publicity," 116 the
publicity action rotates around the public disclosure of private facts. 117

3. Breach of Confidence. — The privacy torts closely resemble intentional
torts such as outrage, 1 18 in that they rotate around intentional interferences 1 19 that
are "highly offensive to a reasonable person." 120 In contrast, the breach of
confidence tort is essentially a strict liability action, 121 as befits a tort claim that
has its roots in implied contract and fiduciary duties. 122

Confidentiality, or rather the tort of breach of confidence, is disclosure-
centric. The breach of confidence tort applies only to those who have been
entrusted with information in confidence. 123 Accordingly:

The [fiduciary or confidential] relationship arises when one person
reposes special trust and confidence in another person and that other
person — the fiduciary — undertakes to assume responsibility for the
affairs of the other party. The person upon whom the trust and
confidence is imposed is under a duty to act for and to give advice for
the benefit of the other person on matters within the scope of the
relationship. Fiduciary duties are the highest standard of duty imposed
by law. 124

It follows that "only one who holds information in confidence can be charged
with a breach of confidence," 125 while "an act [that] qualifies as a tortious
invasion of privacy, it theoretically could be committed by anyone." 126 The
converse is true; if information that is not secret or private is entrusted in



116. Corcoran v. Sw. Bell Tel. Co., 572 S.W.2d 212, 215 (Mo. Ct. App. 1978); see also
Lovgren v. Citizens First Nat'l Bank, 534 N.E.2d 987, 989 (111. 1989) ("The basis of the tort is not
publication or publicity. Rather, the core of this tort is the offensive prying into the private domain
of another.").

117. See, e.g., Tureen v. Equifax, Inc., 571 F.2d 411, 419 (8th Cir. 1978) (requiring
"disclosure to the general public or likely to reach the general public").

118. Restatement (Second) of Torts �� 46 ( 1 965).

119. See, e.g., Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 326 (Mo. Ct. App. 2008)
(requiring plaintiff allege that defendant acted with "knowledge of or with reckless disregard").

1 20. Restatement (Second) of Torts �� 652B ( 1 977).

121. See Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 591 (D.C. 1985).

122. See generally Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523 (Ohio 1999) (noting
that the physician-patient relationship includes a fiduciary character component); Overstreet v.
TRW Commercial Steering Div., 256 S.W.3d 626, 631-32 (Tenn. 2008) (discussing covenants of
confidentiality for contracts implied in fact and contracts implied in law); McCormick v. England,
494 S.E.2d 431, 434 (S.C. Ct. App. 1997) (recognizing modern tort law basis of action).

123. See, e.g., Johns v. Firstar Bank, No. 2004-CA-001558MR, 2006 Ky. App. LEXIS 85, at
*8-9 (Ky. Ct. App. Mar. 24, 2006) (finding that privacy torts are not applicable to a case where
plaintiff disclosed information to defendant; any action would have to lie in breach of confidence).

124. Overstreet, 256 S.W.3d at 641-42 (Koch, J., concurring) (internal citations omitted).

125. Humphers v. First Interstate Bank, 696 P.2d 527, 530 (Or. 1985) (en banc).

126. Id.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 305



confidence, its subsequent disclosure may be actionable. 127 Although there can
be overlap, "neither of the torts of invasion of privacy nor breach of
confidentiality is entirely subsumed within the other." 128

The breach of confidence tort not only is a stricter form of liability than
privacy theories, but also eschews the defensive arguments available in the latter.
For example, "[a] defendant is not released from an obligation of confidence
merely because the information learned constitutes a matter of legitimate public
interest." 129

C. Privacy Expectations and Social Networks

Obviously privacy policies do not protect social network subscribers from
legal process. 130 Increasingly, and as happened with email, social network
subscribers' private profile pages are drawn into public processes through
subpoena or discovery. 131 For example, there have been media reports of
prosecutors using photographs posted on defendants' social network sites to
bolster their arguments in sentencing hearings. 132 Indeed, a growing number of
cases involve discovery or related procedural requests by defendants. 133
Representative fact-patterns include workplace sexual harassment claims, where
the defendant argues that the plaintiff consensually engaged in similar behaviors
online, 134 and any number of cases where the defense seeks to make an issue out
of the social network subscriber's emotional state. 135



127. See id at 528.

128. Burger v. Blair Med. Assocs., Inc., 964 A.2d 374, 381 (Pa. 2009).

129. Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 591 (D.C. 1985) (citing
Vickery, supra note 96, at 1468).

130. See, e.g., Facebook's Privacy Policy, http://www.facebook.com/policy.php (last visited
Dec. 30, 2009) ("We may disclose information pursuant to subpoenas, court orders ... if we have
a good faith belief that the response is required by law.").

131. See, e.g., Ronald J. Levine & Susan L. Swatski-Lebson, Are Social Networking Sites
Discoverable?, Product Liability L. & Strategy, Nov. 13, 2008, available at http://www.law.
comyjsp/legaltechnology/pubArticleLT.jsp?id=1202425974937.

132. See Associated Press, Facebook Evidence Sends Unrepentant P artier to Prison, Fox
News.COM, July 21, 2008, http://www.foxnews.com/story/0,2933,386241,00.html.

133. See generally Carole Levitt & Mark Rosch, How Lawyers Can Mine a Social Network
for Personal Information, 16 Nev. Law. 12 (2008).

1 34. See, e.g. , Mackelprang v. Fid. Nat'l Title Agency of Nev., Inc., No. 2:06-cv-00788-JCM-
GWF, 2007 U.S. Dist. LEXIS 2379, at *8-9 (D. Nev. Jan. 9, 2007).

135. See, e.g., Mary Pat Gallagher, MySpace, Facebook Pages Called Key to Dispute Over
Insurance Coverage for Eating Disorders, 191 N. J.L.J. 309, Feb. 1, 2008, available at
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005559933 (discussing Beye v.
Horizon and Foley v. Horizon, in which defendant's health insurer argued that access to social
network pages could assist in a defense for denial of coverage for anorexia or bulimia because
conditions were emotionally rather than biologically caused); Henry Gottlieb, MySpace, Facebook
Privacy Limits Tested in Emotional Distress Suit, 188 N. J.L.J. 845, June 14, 2007, available at



306 INDIANA LAW REVIEW [Vol. 43:285



In such cases the exact legal status of social network content vis-a-vis user
expectations tends to be obscured by proceedings that depend in large part on
highly individualized facts and trial court discretion. Only occasionally have
courts dealt directly with a social network user's expectations of those who can
see their posts, or the more complex legal question of the user's privacy
expectations.

A.B. v. State 136 concerned a juvenile who posted a vulgar tirade against her
ex-middle school principal on a My Space page. That page was on a profile
falsified as the principal's but actually created by one of the defendant's
friends. 137 A total of twenty-six friends including the defendant were given
access to the fake profile. 138 At trial the defendant was adjudicated a delinquent
child on the basis that, if she had been an adult at the time of the crime, she
would have committed the statutory offense of harassment. 139 The requisite
intent for the harassment offense in question included "a subjective expectation
that the offending conduct will likely come to the attention of the person targeted
for the harassment." 140 Given the sparse record, the prosecution's reasonable
doubt burden, and a lack of any independent evidence as to the workings of the
social network site, the court reversed the adjudication. 141 Specifically, the court
determined that there was no probative evidence that the defendant, who posted
to a limited group of friends rather than the public, had the requisite expectation
that the act would come to the principal's intention. 142

In Moreno v. Hanford Sentinel, Inc., 143 a college student posted comments
critical of her hometown on her My Space site. Although she removed the
posting six days later, the post had already been copied to her hometown's
newspaper for republication. 144 She sued the newspaper and her high school
principal who had transmitted the posting to a reporter for, inter alia, breach of
privacy. 145 Citing Hill v. National Collegiate Athletic Ass'n, 146 the Supreme
Court of California's most recent guide, the court noted that such a claim "is not
'so much one of total secrecy as it is of the right to define one's circle of



http://www.law.com/jsp/LawArticleFriendly-jsp7id (discussing T.V. v. Union Township Board of
Education, defendant school district sought access to social networks pages to potentially challenge
plaintiffs credibility in an action for emotional injuries).

136. 885 N.E.2d 1223 (Ind. 2008).

137. Id. at 1225.

138. Id.

139. Id. at 1223-25.

140. Id. at 1226.

141. Mat 1228.

142. Id. at 1227-28. The court seemed less sure about how to deal with another posting by the
defendant on a different, public MySpace profile page, but ultimately found the evidence wanting
as to intent. Id.

143. 91 Cal. Rptr. 3d 858 (Ct. App. 2009).

144. Mat 861.

145. Id.

146. 865 P.2d 633 (Cal. 1994).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 307



intimacy — to choose who shall see beneath the quotidian mask. " ,147 The Moreno
court concluded:

[The plaintiff] publicized her opinions ... by posting ... on
myspace.com, a hugely popular internet site. [Her] affirmative act made
her article available to any person with a computer and thus opened it to
the public eye. Under these circumstances, no reasonable person would
have had an expectation of privacy regarding the published material. 148

The opinion does not state whether the plaintiff had set her MySpace privacy
settings to restrict access to her site to her approved "friends." As it stands, the
opinion seems to suggest that simply posting to a social network site defeats the
expectation of privacy; a position that is challenged below. 149

D. Privacy and Confidentiality in Healthcare

The privacy and confidentiality rules applied to healthcare providers and to
some patient information are both more complex and more granular. At common
law, the collection-centric privacy tort is represented by a relatively small
collection of cases that suggest healthcare provider liability will be restricted to
a narrow range of outlying fact situations. Such a state is unsurprising given that
the privacy torts lack any unifying concept and have failed to develop robust,
plaintiff-friendly doctrine.

Consider, for example, the classic case of Knight v. Penobscot Bay Medical
Center. 150 A nurse's husband arrived at a hospital to pick her up. 151 "To give
[him] something interesting to do while he" waited, the husband was gowned and
permitted to observe a stranger's labor and delivery. 152 Notwithstanding the
rather obvious nature of this intrusion, the plaintiffs cause of action failed
because there was no evidence that the nurse's husband had intended the
intrusion into the patient's seclusion. 153



147. Moreno, 91 Cal. Rptr. 3d at 863 (quoting M.G. v. Time Warner, Inc., 107 Cal. Rptr. 2d
504, 511 (Ct. App. 2001)). Hill also analyzed the privacy tort rights as follows:

Each of the four categories of common law invasion of privacy identifies a distinct
interest associated with an individual's control of the process or products of his or her
personal life. To the extent there is a common denominator among them, it appears to
be improper interference (usually by means of observation or communication) with
aspects of life consigned to the realm of the "personal and confidential" by strong and
widely shared social norms.
Hill, 865 P.2d at 647.

148. Moreno, 91 Cal. Rptr. 3d at 862.

149. See text accompanying infra notes 323-29.

150. 420 A.2d 915 (Me. 1980).

151. Mat 916-17.

152. Mat 917.

153. Id. at 918; seealso Fisher v. Dep't of Health, 106 P.3d 836, 840 (Wash. Ct. App. 2005)
(requiring a "deliberate intrusion"); Kindschi v. City of Meriden, No. CV064022391, 2006 Conn.



308 INDIANA LAW REVIEW [Vol. 43:285



Similar limitations that are instructive on the application of the privacy torts
to social network scenarios derive from the torts' offensiveness and privacy
expectation limitations. Take, for example, Adamski v. Johnson, 154 a case that
involved intrusion and publicity allegations by the plaintiff against her employer.
Plaintiff provided her employer with notice that she would be undergoing
surgery, but when asked she refused to supply additional information about the
surgery. 155 Allegedly, her supervisor applied pressure to her co-employees and
acquired that information. 156 The defendants' apparently intentional conduct
notwithstanding, the court granted defendants' demurrer. 157 First, the court did
not view the disclosed information regarding the nature of the surgery as either
an intrusion or public disclosure of private facts that could be '"highly
offensive'" to a reasonable person. 158 Second, the plaintiffs inchoate allegation
that her supervisor relayed the information to others was dismissed on the basis
that it did not allege facts to suggest that the disclosure went beyond a single
person or small group of persons. 159 Third, the plaintiffs own disclosure of the
nature of the surgery to a small group of co-workers reinforced the defense
position that the intrusion was not offensive and rendered the publicity claim
untenable by eliminating her expectation of privacy. 160

Notwithstanding these limitations inherent in the common law doctrines,
there is a considerable body of case law that applies privacy doctrine with some
rigor to medical fact patterns and suggests some legal jeopardy for medical
professionals posting or micro-blogging information about their patients. As
noted as early as 1942 by the Supreme Court of Missouri, "if there is any right
of privacy at all, it should include the right to obtain medical treatment at home
or in a hospital for an individual personal condition (at least if it is not contagious
or dangerous to others) without personal publicity." 161 As more recently stated
by a district court in Illinois, "[t]here are few things in life that are more private
than medical treatments and/or examinations." 162

/. Intrusion Actions. — Estate of Berthiaume v. Pratt concerned two series
of photographs taken of a patient suffering from cancer of the larynx. 163 The first



Super. LEXIS 3666, at *8-9 (Conn. Super. Ct. Nov. 27, 2006) (requiring an intentional invasion
upon the plaintiffs privacy).

154. 80 Pa. D. & C.4th 69 (Comm. PI. 2006).

155. Mat 70-71.

156. Mat 71.

157. Mat 78.

158. Mat 74.

159. Id. at 16.

1 60. Id. at 77; see also Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 87 1 , 878
(8th Cir. 2000) (holding that plaintiff lost expectation of privacy when she shared information about
a staph infection with co-workers).

161. Barber v. Time, Inc., 159 S.W.2d 291, 295 (Mo. 1942).

162. Acuff v. IBP, Inc., 77 F. Supp. 2d 914, 924 (CD. 111. 1999).

163. 365 A.2d 792, 793 (Me. 1976).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 309



series was taken during the patient's treatment and apparently with his consent. 164
A second series was taken as the patient was dying and there was evidence that
the patient objected to the taking of this second set of photographs. 165 The court
reversed the defendant's directed verdict and held that this intrusion claim should
have been submitted to the jury. 166 Although the court recognized "the benefit
to the science of medicine which comes from the making of photographs of the
treatment and of medical abnormalities found in patients," 167 this could not be
done without the subject's consent. 168

Stratton v. Krywko concerned a plaintiff involved in an automobile
accident. 169 She was taking Prozac and on the night of the accident consumed
alcohol and marijuana. 170 With the consent of emergency services and the local
hospital, a documentary crew was riding with the paramedics who treated the
patient at the scene of the accident and transported her to the emergency room. 171
Plaintiff refused to sign any consent to the filming. 172 In subsequent broadcasts
plaintiffs face was digitally obscured. 173 However, she was referred to by her
first name and her name and address were visible on a report shown in the
video. 174 A physician could be heard referring to her as "[n]o allergies, on
Prozac." 175 Given that "defendants filmed plaintiff in the emergency room after
she was presented with and explicitly refused to sign the informed consent
release," 176 the court held that her intrusion allegation should have been presented
to the jury. 177

Both Berthiaume and Stratton reaffirm the collection-centric nature of the
intrusion action. However, both cases concern the judicial protection of overtly
physical spaces and tell us little about the resolution of potential claims involving
intrusion into a pseudo-secluded space such as a Facebook profile.

2. Publicity Actions . — Whether information is private depends in part on the
type of information and the extent that the subject keeps the information from the
public. Thus, "[s]exual relations ... are normally entirely private matters, as are
. . . many unpleasant or disgraceful or humiliating illnesses, most intimate
personal letters, [and] most details of a man's life in his home." 178 Indeed,



164. Id.

165. Id.

166. Id. at 795.

167. Id. at 796.

168. Id. at 796-97.

169. No. 248669, 2005 Mich. App. LEXIS 23, at *l-2 (Mich. Ct. App. Jan. 6, 2005).

170. Id.

171. Mat*3.

172. Id.

173. A/. at*3-4.

174. Id.

175. Id.

176. Mat*22.

177. Id; see also Miller v. Nat'l Broad. Co., 232 Cal. Rptr. 668 (Ct. App. 1986).

178. Restatement (Second) of Torts �� 652D cmt. b (1977).



310 INDIANA LAW REVIEW [Vol. 43:285



"[mjatters concerning a person's medical treatment or condition are also
generally considered private." 179 Just as the taking of photographs can constitute
an intrusion, 180 so the publicity tort may apply to their distribution. For example,
one court opined, "[w]e fail to see how autopsy photographs of the Plaintiffs'
deceased relatives do not constitute intimate details of the Plaintiffs' lives or are
not facts Plaintiffs do not wish exposed 'before the public gaze. '" 181 On the other
hand, "there is no liability for giving further publicity to what the plaintiff
himself leaves open to the public eye." 182

The core component of the publicity tort is, not surprisingly, that the
defendant gave publicity to this private information. The relevant RESTATEMENT
(Second) of Torts comment provides:

it is not an invasion of the right of privacy, within the rule stated in this
Section, to communicate a fact concerning the plaintiffs private life to
a single person or even to a small group of persons. On the other hand,
any publication in a newspaper or a magazine, even of small circulation,
or in a handbill distributed to a large number of persons, or any
broadcast over the radio, or statement made in an address to a large
audience, is sufficient to give publicity within the meaning of the term
as it is used in this Section. The distinction, in other words, is one
between private and public communication. 183

In this context, Vassiliades v. Garfinckel 's, Brooks Brothers is instructive. 184
A patient brought an action against her plastic surgeon for invasion of privacy
(publicity) after the surgeon used "before" and "after" photographs of her (taken
with her consent) in promotional events at a department store and on
television. 185 Evidence had been offered at trial by the plaintiff that "after
agonizing over losing her youthful appearance and contemplating plastic surgery
for many years, she underwent plastic surgery and kept her surgery secret, telling
only family and very intimate friends." 186 For the court, there was no touchstone
regarding who had seen the photographs or even whether her name had been
published. Rather "[t]he nature of the publicity ensured that it would reach the
public." 187

This contrasts with Robert C. Ozer, P.C. v. Borquez}™ The plaintiffs
partner was diagnosed with AIDS and the plaintiff himself was advised to take



179. Doe v. Mills, 536 N.W.2d 824, 829 (Mich. Ct. App. 1995) (citation omitted).

180. See Estate of Berthiaume v. Pratt, 365 A.2d 792, 793 (Me. 1976).

181. Reid v. Pierce County, 961 P.2d 333, 341 (Wash. 1998).

182. Restatement (Second) of Torts �� 652D cmt. b. (1977).

1 83. Restatement (Second) of Torts �� 652D cmt. a. (1977).

184. See 492 A.2d 580, 585 (D.C. 1985).

185. Mat 584.

186. Mat 587.

187. Mat 588.

188. 940P.2d371 (Colo. 1997).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 3 1 1



an HIV test. 189 Asking for confidence the plaintiff, an associate at a law firm,
told his law firm president that he was gay, that he needed to be tested, and
wished for some help covering a previously scheduled deposition. 190 One-week
later the plaintiff was terminated, but not before he discovered that the
information had been shared with everyone in the law firm. 191 The court reversed
a jury verdict in the plaintiffs favor on a "publicity" count because of a defective
jury instruction; the trial court had required only that the private information be
"published" to another. 192 As the Colorado Supreme Court concluded, "the
public disclosure requirement renders [defendant] liable for [plaintiffs] invasion
of privacy claim only if [defendant] disclosed [plaintiffs] situation to a large
number of persons or the general public." 193 As discussed below, Vassiliades and
Ozer are not at odds with each other. Rather, modem courts recognize a more
granular interpretation of the publicity tort. The "publicity" can occur either: ( 1 )
through "private" channels, thus triggering an additional requirement of a
considerable number of recipients; or (2) through a "public" channel, anything
from a sign in a shop window to a television broadcast, in which case there is no
additional numerical touchstone. 194

Given that the action rotates around private facts being made public,
plaintiffs will have weaker cases when there has been some level of self-
disclosure. Stratton v. Krywko, the television documentary case discussed above,
was close to the line. 195 The defendants had successfully argued in their motion
for summary judgment that the information disclosed about the plaintiff (such as
her face, x-ray/cat scan data, status, prognosis, and Prozac prescription) was
already public. 196 The appellate court agreed with regard to many of the items
(for example, a public street accident, the police report of the accident) although
others (e.g., scans) were not specifically identified during the broadcasts as
hers. 197 However, the court considered that there was an issue of triable fact
whether her Prozac prescription was known to "everybody" as argued by
defendants or known to only a "select number of close friends and family." 198 As
the court recognized, "[p]laintiff s argument has merit. Disclosing a fact to a
small number of confidants does not equate to making the information public." 199

Another issue that arises in publicity cases is whether the publicity reaches
the "highly offensive" threshold. This question of offensiveness to a reasonable
person is an issue of fact for the jury. For example, the court in Vassiliades



189


Mat 373.






190


Id. at 374.






191


Id.




~


192


Id. at 379.






193


Id.






194


See discussion accompanying infra note 324.


195


No. 248669,


2005 Mich.


App. LEXIS 23 (Mich. Ct. App. Jan. 6, 2005).


196


Mat*12.






197


Id. at* 14.






198


Id. at*15.






199


Id.







312 INDIANA LAW REVIEW [Vol. 43:285



would not substitute its own views for a jury determination that the publication
of "before" and "after" photographs met this test. 200

The publicity tort can be defeated in the case of the qualified "legitimate
public interest in the publication," either at common law or when the First
Amendment is implicated. 201 Notwithstanding, when balancing out these
interests, courts tend to favor the individual's right to privacy:

The line is to be drawn when the publicity ceases to be the giving of
information to which the public is entitled, and becomes a morbid and
sensational prying into private lives for its own sake, with which a
reasonable member of the public, with decent standards, would say that
he had no concern. 202

Gilbert v. Medical Economics Co. 203 concerned an article in defendant's
magazine that discussed incidents of alleged malpractice committed by the
plaintiff anesthesiologist. The article discussed the plaintiffs history of
psychiatric and related personal problems in making the argument that there had
been a breakdown in the regulatory system. 204 The court affirmed the
defendant's summary judgment on the application of the defense noting "the
legitimate public interest of warning potential future patients, as well as surgeons
and hospitals, of the risks they might encounter in being treated by or in
employing the plaintiff." 205

The most difficult issue in these public interest cases is the assessment of the
value of the specific identification. Consider again Stratton v. Krywko, where the
defendants persuaded the trial court that the First Amendment protected their
"Night in the E.R." documentary as newsworthy or educational. 206 The court
reaffirmed the duality of this inquiry: "not only must the overall subject-matter
be newsworthy, but also the particular facts [regarding the plaintiff] revealed." 207
On these facts, the court considered summary adjudication to be improper. 208
When dealing with this issue the courts, as noted in Vassiliades™ seek a "logical



200. Vassiliades v. Garfinkel's, Brooks Bros., 492 A.2d 580, 588 (DC. 1985).

201. Id at 588-89; see also Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981);
Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 378 n.8 (Colo. 1997) (discussing First
Amendment's applicability); Fisher v. Dep't of Health, 106 P.3d 836, 841 (Wash. Ct. App. 2005)
(holding that "the government may have had no legitimate interest in the dissemination of this
private information sufficient to outweigh Ms. Fisher's protected privacy interest. But she must
show that the extent of the dissemination outweighed her own privacy interest").

202. Restatement (2nd) of Torts, �� 652D cmt. h (1977).

203. 665 F.2d 305 (10th Cir. 1981).

204. Mat 307-08.

205. Id at 309.

206. Stratton v. Krywko, No. 248669, 2005 Mich. App. LEXIS 23, at *15-16 (Mich. Ct. App.
Jan. 6, 2005).

207. A/. at*20.

208. Id

209. Vassiliades v. Garfinkel's, Brooks Bros., 492 A.2d 580, 585 (D.C. 1985).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 3 1 3



nexus" between the legitimate public interest and the particular publicity given
to the plaintiffs private information. 210

3. Confidentiality Actions. — As discussed above, the tort action for breach
of confidence is disclosure-centric and dependent on context. There is also a
chronology at play, and as persuasively argued by Leslie Francis, it is a
chronology not a prioritization. 21 1 A patient exercises this right of privacy when
he or she chooses to provide information to a physician; "[i]f it were otherwise,
patients would be reluctant to freely disclose their symptoms and conditions to
their physicians in order to receive proper treatment." 212 That information then
ceases to be private vis-a-vis the physician. Thereafter, dissemination of that
information by the physician is limited by the requirement of confidence. 213
"One of the fiduciary duties that a physician assumes when he or she undertakes
to treat a patient is the duty to refrain from disclosing a patient's confidential
health information unless the patient expressly or impliedly consents or unless
the law requires or permits disclosure." 214

The modern trend is to apply a tort-based breach of confidence action
regarding unauthorized disclosure of medical information. 215 For example, in
Biddle v. Warren General Hospital, the court recognized both healthcare
provider liability for either "unprivileged disclosure to a third party of nonpublic
medical information that a physician or hospital has learned within a physician-
patient relationship" 216 or third party liability for "inducing the unauthorized,
unprivileged disclosure of nonpublic medical information." 217

In enforcing the duty of confidentiality regarding medical information courts
are particularly protective of medical records. 218 For example, in Hageman v.
Southwest General Health Center, 219 the Supreme Court of Ohio reaffirmed its
holding in Biddle and held a lawyer liable for breach of confidence when she
passed medical records lawfully obtained in a divorce case to a prosecutor in a
related matter. 220



210. Id. at 589-90 (citations omitted).

211. Leslie Pickering Francis, Privacy and Confidentiality: The Importance of Context, 91
MONIST 52, 52-67 (2008).

212. Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 642 (Tenn. 2008)
(citations omitted).

213. TomL. Beauchamp& James F. Childress, Principles of Biomedical Ethics 410 (4th
ed. 1994).

214. Overstreet, 256 S.W.3d at 642 (citations omitted).

215. See McCormick v. England, 494 S.E.2d 431, 437 (S.C. Ct. App. 1997).

216. 715 N.E.2d 518, 523 (Ohio 1999).

217. Mat 528.

218. Hageman v. Sw. Gen. Health Ctr., 893 N.E.2d 153, 155-56 (Ohio 2008).

219. Id.

220. Id. at 157-58; see, e.g., Burger v. Blair Med. Assocs., 964 A.2d 374 (Pa. 2009); Jeffrey
H. v. Imai, Tadlock & Keeney, 101 Cal. Rptr. 2d 916, 918-19 (Ct. App. 2000), overruled in part
by Jacob B. v. County of Shasta, 154 P.3d 1003, 1012 (Cal. 2007); Anonymous v. CVS Corp., 728
N.Y.S.2d 333, 335 (Sup. Ct. 2001) (discussing pharmacy records).



314 INDIANA LAW REVIEW [Vol. 43:285



Although there is no public interest defense to breach of confidence, 221 "a
physician or hospital is privileged to disclose otherwise confidential medical
information in those special situations where disclosure is made in accordance
with a statutory mandate or common-law duty, or where disclosure is necessary
to protect or further a countervailing interest which outweighs the patient's
interest in confidentiality." 222 As with the statutory and regulatory confidentiality
codes discussed below, breach of confidentiality actions can be met by defensive
arguments that the disclosure was compelled by law, 223 is in the best interest of
the patient or others, 224 or the patient has given express or implied consent to the
disclosure. 225

E. Ethical Restraints

Just as system architecture creates a soft law alternative to boundary law or
governmental coercion, so the existing ethical boundaries that hover over the
physician-patient relationship create a soft law approach to modulating the
behaviors of some social network actors.

Basic medical professional ethics structures map quite well to the common
law confidentiality and privacy restraints. Thus, the American Medical
Association (AMA) Code of Medical Ethics combines its disclosure-centric
requirement of confidence ("The physician should not reveal confidential
information without the express consent of the patient") with the principle's
instrumental justification ("The patient should feel free to make a full disclosure
of information to the physician in order that the physician may most effectively
provide needed services"). 226 Similarly, the AMA's approach to collection-
centric rules includes an "intrusion"-like privacy principle demanding protection
of patient privacy as it relates to physical [privacy] "which focuses on individuals
and their personal spaces." 227 However, the ethical rules also extend to
associational ("family or other intimate relations"), informational ("specific
personal data"), and decisional privacy ("personal choices"). 228

As discussed above, the legal domain's case-by-case approach to physician-
patient privacy has added few bright line rules to the basic seclusion-intrusion or
related mandates. In contrast, the AMA principles do bright line some specific
fact-patterns.



221. See Vassiliades v. Garfmckel's, Brooks Bros., 492 A.2d 580, 591 (D.C. 1985).

222. Biddle, 715 N.E.2d at 524.

223. McCormick v. England, 494 S.E.2d 431, 439 (S.C. Ct. App. 1997).

224. Id.

225. Snavely v. AMISUB of S.C, Inc., 665 S.E.2d 222, 225 (S.C. Ct. App. 2008), cert, denied
(Apr. 10,2009).

226. AMA, Code of Medical Ethics �� 5.05— Confidentiality (2007), http://www.ama-
assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion505.shtml.

227. Id. �� 5.059 — Privacy in the Context of Health Care, http://www.ama-assn.org/ama/pub/
physician-resources/medical-ethics/code-medical-ethics/opinion5059.shtml.

228. Id.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 3 1 5



Thus, physicians who participate in "interactive online sites that offer email
communication" are expected to adhere to the AMA's guidelines on email. 229 It
might seem that these guidelines would apply only to the email-like features
grafted on to social network sites. However, the AM A opinion could be
interpreted to provide guidelines for broader physician participation online and
so prohibit the establishment of a physician-patient relationship through an
online social network. Further, if a physician-patient relationship already existed
such guidelines would require informed consent as to the limitations and risks
associated with social network communication, and demand a regard for privacy
and confidentiality that may be unattainable in the online social network
context. 230

The AMA ethical guidelines specifically address both contemporaneous and
recorded observation of physician-patient interactions, scenarios that may point
to the correct approach to social network "broadcasts" such as Facebook posts
or Twitter streams. For example, the ethical approach to "outside observers" 231
requires their prior agreement to confidentiality and their presence is conditioned
on "the patient's explicit agreement." 232 Similarly, with regard to filming and
broadcasting encounters, the "educational objective can be achieved ethically by
filming only patients who can consent." 233 Such consent must be obtained for
both the filming and subsequent broadcasting. 234 Any such consent must be
informed and thus is predicated on: "[A]n explanation of the educational
purpose of film, potential benefits and harms (such as breaches of privacy and
confidentiality), as well as a clear statement that participation in filming is
voluntary and that the decision will not affect the medical care the patient
receives." 235 Furthermore, the guidelines assume that the filming and broadcast
will be limited to healthcare professionals and their students. If any broader
audience is contemplated, that must be the subject of an additional, explicit
consent. 236

The framing of both the provisions on outside observers and filming are



229. Id. �� 5.027(3) — Use of Health-Related Online Sites, http://www.ama-assn.org/ama/pub/
physician-resources/medical~ethics/code-medical-ethics/opinion5027.shtml.

230. Id. �� 5.026 — The Use of Electronic Mail (2008-09), http://www.ama-assn.org/ama/pub/
physician-resources/medical-ethics/code-medical-ethics/opinion5026.shtml.

231. Id. �� 5.0591 — Patient Privacy and Outside Observers to the Clinical Encounter,
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/
opinion50591 .shtml (defining "outside observers" as "individuals who are present during patient-
physician encounters and are neither members of a health care team nor enrolled in an educational
program for health professionals").

232. Id.

233. Id. �� 5.045(l)-(2) — Filming Patients in Health Care Settings, http://www.ama-
assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5045.shtml.

234. Id.

235. Id. �� 5.046 — Filming Patients forthe Education of Health Professionals, http://www.ama-
assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5046.shtml.

236. Id.



316 INDIANA LAW REVIEW [Vol. 43:285



sufficiently analogous to Internet broadcasting through social network sites that
the additional considerations regarding confidentiality and informed consent are
significant. First, the AMA notes that, "[pjhysicians should avoid situations in
which an outside observer's presence may negatively influence the medical
interaction and compromise care." 237 Second, "physicians should be aware that
filming may affect patient behavior during a clinical encounter. The patient
should be given ample opportunity to discuss concerns about the film, before and
after filming, and a decision to withdraw consent must be respected." 238 Third,
the ethical rules that acknowledge the requirement for explicit consent are based
on the recognition that "filming cannot benefit a patient medically and may cause
harm." 239

F. HIPAA and Related Regulatory Models

Although reasonably well-developed areas of law by the late 1990s, the
breach of confidence tort and related state statutes 240 were deemed inadequate to
meet the needs of electronic, interoperable billing, and records systems. Starting
in 2000, therefore, the breach of confidence tort has been supplemented by
HIPAA, a federal confidentiality code (albeit one that is mislabeled as dealing
with "privacy"). 241

Today, the HIPAA code is the most important source of regulation regarding
disclosures of patient information by healthcare providers. 242 It is not the
exclusive source because HIPAA is quite limited in its reach 243 and only partially
preempts state confidentiality laws. 244 Much of the HIPAA regulatory framework
is not directed at protecting patient information but creating the "exceptional"
processes by which such data may be disseminated (such as patient consent) or
creating broad safe harbors for public health, judicial, and regulatory



237. Id. �� 5.0591 — Patient Privacy and Outside Observers to the Clinical Encounter,
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
ethics/opinion5059 1 .shtml.

238. Id. �� 5.046(1 )-(2) — Filming Patients for the Education of Health Professionals,
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
ethics/opinion5 046 . shtml .

239. Id. �� 5.045(2) — Filming Patients in Health Care Settings, http://www.ama-assn.org/ama/
pub/physician-resources/medical-ethics/code-medical-ethics/opinion5045. shtml.

240. See, e.g., Cal. Civ. Code ��� 56-56.37 (West 2007); Mont. Code Ann. ��� 50-16-501
to -553 (West Supp. 2009); Wash. Rev. Code Ann. ��� 70.02.005 to -.904 (West 2002 & Supp.
2009); Wis. Stat. �� 146.83 (West Supp. 2009).

241. 45 C.F.R. �� 164.500-534 (2009).

242. HIPPA Basics: Medical Privacy in the Electronic Age, http://www.privacyrights.org/
fs/fs8a-hipaa.htm.

243 . See generally Nicolas P. Terry, What '$ Wrong With Health Privacy?, 5 J. HEALTH & Bio.
L. 1-32 (2009).

244. 45 C.F.R. ��� 164.500-534 (2009).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 3 1 7



institutions. 245 Additionally, there have been strong critiques of the Office of
Civil Rights in its approach to enforcing the regulations. 246 Some of the
complaints about HIPAA's limitations should be addressed as a result of the
Health Information Technology for Economic and Clinical Health Act,
(HITECH), Subtitle D, 247 (part of the American Recovery and Reinvestment Act
of 2009 248 ). For example, "Business Associates'' are no longer indirectly
regulated through terms in their contracts with "Covered Entities" but are directly
subject to the HIPAA code, 249 including its penalties. 250 HITECH seeks to
respond to criticisms about HIPAA's lack of an educative goal, requiring
regulations on educating health providers 251 and an initiative to "enhance public
transparency regarding the uses of protected health information." 252 The
legislation requires new regulations to strengthen the proportionality ("minimum
necessary" under HIPAA) of disclosures 253 and strengthened restrictions on the
use of protected health information for marketing purposes. 254 Enforcement
should improve because of both tighter definitions of breaches of the code 255 and
additional enforcement through state attorneys general. 256 Although there is still
no private right of action, there will be a system designed to distribute a
percentage of civil penalties or settlements collected from providers to injured
patients. 257

Notwithstanding the HIPAA approach to preemption, the HIPAA "floor,"
continues. 258 Further, the exact changes to the confidentiality code will depend
on regulations made pursuant to the enabling legislation included in HITECH.

Although the HIPAA code and this forthcoming "version 2.0" are relevant



245. See, e.g., id. ��� 164.508, 164.510, 164.512.

246. See, e.g., Kirk J. Nahra, The HIPAA Enforcement Era Begins!, WILEY REIN LLP, Aug.

2008, available at http://www.wileyrein.com/publication_newsletters. cfrn?id= 1 0&publication_id=
13717; Anne Zieger, Why Toughen HIPAA When Nobody Enforces It?, FIERCE HEALTHlT, Jan. 25,

2009, available at http ://www. fiercehealthit. com/story/why-toughen-hipaa-when-nobody-enforces-
it/2009-01-25.

247. Health Information Technology for Economic and Clinical Health Act, Pub. L. No. 111-5,
��� 13001-13424, 123 Stat. 226.

248. American Recovery and Reinvestment Act of 2009, Pub. L. No. 1 1 1-5, 123 Stat. 115
(codified as amended in scattered sections of 2 U.S.C., 5-8 U.S.C., 10 U.S.C., 12 U.S.C., 15-16
U.S.C., 1 8-20 U.S.C., 25-26 U.S.C., 29 U.S.C., 3 1 U.S.C., 32 U.S.C., 38 U.S.C., 40-42 U.S.C., 45-
47 U.S.C., 49 U.S.C.).

249. Id. �� 13401(a)-(b).

250. Id. �� 13404(c).

251. Id. �� 13403(a).

252. Id. �� 13403(b).

253. Id. �� 13405(b).

254. Id. �� 13406(a).

255. Id. �� 13409-10.

256. Id. �� 13410(e).

257. Id. �� 13410(c).

258. Id. �� 13421.



3 1 8 INDIANA LAW REVIEW [Vol. 43:285



to the regulation of the social network fact patterns discussed in this article, they
are of less importance than in traditional, offline healthcare "boundary"
scenarios. Running a Twitter feed from inside a hospital or physician blog posts
that identify patients would seem to implicate HIPAA's "covered entity"
requirements as far as confidentiality and consent. However, HIPAA still only
applies to data entrusted to and subsequently disclosed by healthcare providers.
Thus, patient health information that is posted to a social network site by
someone other than a covered entity (e.g., by the patient) will not trigger HIPAA.
Perhaps the most important limitation of HIPAA relevant to this Article is that
the federal code does not create boundaries as to the collection of patient
information (e.g., by insurers, employers or even physicians surfing patient
profiles), but only its disclosure. As a result, most of the "boundary" analysis
that follows will rotate around common law theories of liability.

III. Setting Boundaries for Physicians and Patients

Patients and their healthcare providers are robust users of global and
enterprise wide networks. However, the two groups seldom intentionally interact
using such tools, 259 notwithstanding governmental and healthcare institutions
interest in promoting online interactions such as researching efficient healthcare
interventions or sharing electronic medical records. 260 More than 61% of U.S.
adults search for health information online. 261 Sustained growth in patient
enthusiasm for online interactions notwithstanding, 262 many physicians still view
direct contact with patients via email as time-consuming tasks best left to staff 263



259. See Nicolas P. Terry, Prescriptions sans Frontieres (or How I Stopped Worrying About
Viagra on the Web but Grew Concerned About the Future of Healthcare Delivery), 4 YALE J.
HEALTH Pol'y L. & ETHICS 183, 186 (2004) [hereinafter Terry, Prescriptions sans Frontieres]
(describing impact Internet has on doctor-patient relationship). But see Jaymes Song, In Hawaii,
the Doctor Is Always in-Online, NEWSVINE, Jan. 15,- 2009, http://www.newsvine.eom/_
news/2009/01/1 5/23 1 3309-in-hawaii-the-doctor-is-always-in-online (describing exceptions to the
dearth of online physician-patient interactions).

260. See, e.g., Nicolas P. Terry, Personal Health Records: Directing More Costs and Risks
to Consumers?, 1 DrexelL. Rev. 216 (2009) (discussing growth of commercial personal health
records models); Nicolas P. Terry & Leslie P. Francis, Ensuring the Privacy and Confidentiality
of Electronic Health Records, 2007 U. III. L. Rev. 681, 691-96 (discussing drivers behind move
to electronic records); see also Nicolas P. Terry, To HIPAA, A Son: Assessing The Technical,
Conceptual, and Legal Frameworks for Patient Safety Information, 12 WlDENER L. REV. 133
(2005).

261 . Fox & Jones, supra note 63, at 2.

262. Paul Rosen & C. Kent Kwoh, Patient-Physician E-mail: An Opportunity to Transform
Pediatric Health Care Delivery, 120 PEDIATRICS 701 (2007); Hardeep Singh et al., Older Patients '
Enthusiasm to Use Electronic Mail to Communicate With Their Physicians: Cross-Sectional
Survey, 1 1 J. MED. INTERNET Res. e.18 (2009), http://www.jmir.Org/2009/2/el8.

263. Terry, Prescriptions sans Frontieres, supra note 259, at 227.



2010] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 3 1 9



or creating unacceptable time pressures during consultations. 264 The AMA
remains concerned that email contact will damage the traditional framework of
the physician-patient relationship. 265 Meanwhile regulators and prosecutors take
the position that online practice encourages opportunistic online relationships
designed to encourage the illegal distribution of prescription drugs. 266

To this dystopian online world of physicians and patients now must be added
category -blurring behavior by both cohorts: physicians intending to blog or
tweet to other physicians but reaching a far broader audience; patients exposing
medical or genetic signals in apparently private Facebook posts; physicians
disclosing sufficient personal information on their profile pages to concern a
patient or raise a red flag during a pre-employment background check; and
physicians entering perhaps unintended relationships with a small number of the
undifferentiated cohorts they meet online.

This section seeks to identify some of the "pinch points" that could lead to
legal exposure for healthcare providers or an array of surprises for patients.

A. Physicians ' Social Information Online

Search is omnipresent as both a personal and professional tool. We can
Google our friends or colleagues and increasingly may view it as unprofessional
to take a meeting with someone un-researched.

In fact, 35% of adults have used the Internet to search "for information about
physicians or other health professionals." 267 A slightly smaller group (28%)
searches for information about institutional providers. 268 There is a robust
correlation between the adults that search for information online and those who
use social network sites; some 39% of the former cohort use social network
sites. 269 Emerging consumer-driven healthcare models suggest that patients
should research their potential providers.

There are innumerable, searchable databases regarding regulatory
proceedings or litigation with adverse results for physicians. These include The
National Practitioner Data Bank, 270 the Federation Physician Data Center, 271 and



264. Henry W. W. Potts & Jeremy C. Wyatt, Survey of Doctors ' Experience of Patients Using
the Internet, 4 J. MED. INTERNET RES. e5 (2002), http://www.jmir.Org/2002/l/e5. See also Pauline
W. Chen, Medicine in the Age of Twitter, N.Y. TIMES, June 11, 2009, http://www.nytimes.com/
2009/06/1 l/health/llchen.html?_r=2; The Efficient MD— Life Hacks for Healthcare,
http://efficientrnd.blogspot.com/2008/04/ten-trends-in-american-medicine.html (Apr. 24, 2008,
12:22) (noting that the tenth top trend in healthcare is that Information Technology Will Fall Short
of Promises).

265. AMA, Code of Medical Ethics �� 5.026 — The Use of Electronic Mail, http://www.ama-
assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5026.shtml.

266. See Terry, Prescriptions sans Frontieres, supra note 259, at 199-202.

267. Fox & Jones, supra note 63, at 35.

268. Id. at 46.

269. Id at 15.

270. Health Care Quality Improvement Act of 1 986, Pub. L. No. 99-660, �� �� 40 1 -32, 1 00 Stat.



320 INDIANA LAW REVIEW [Vol. 43:285



resources maintained by state medical boards. 272 But these databases are not
always complete (although the reach of the NPDB may be expanding 273 ) and
seldom will document social behavior.

In 2008, Thompson and colleagues evaluated the Facebook profiles of
University of Florida medical students and residents; 44.5% of medical students
had a Facebook account, but only 37.5% of profiles were made private. 274 The
study found that, "[u]se is more common among students, and most chose to keep
their profiles open to the public." 275 The study found that many of these accounts
included personal information "that is not usually disclosed in a doctor-patient
relationship." 276 A random sub-sample of such studied sites disclosed; "content
that could be interpreted negatively," such as excess alcohol consumption and
foul language. 277

As discussed below employers routinely search the social network sites of
applicants and employees even though this practice is not without legal risk. 278
Such disincentives notwithstanding, in the wake of high-profile hiring scandals
the case can be made that no hospital or system should make a professional
appointment without first performing a detailed background check using all
available search tools; including searches of social network sites. Recall, for
example, the data available about some of the Florida medical students. 279
Further, a social network profile might contain postings, uploaded and tagged
data, or membership in online groups that could signal anything from substance
abuse to attitudes about race or gender.

In the healthcare domain this background-checking issue is of increasing
importance because of the rise of so-called 'negligent credentialing' suits brought
by a patient against a health care facility allegedly injured as a result of the acts
or omissions of a facility-credentialed physician. In Larson v. Wasemiller, 280 the
Minnesota Supreme Court noted:

Given our previous recognition of a hospital's duty of care to protect its



3743. See generally http://www.npdb-hipdb.hrsa.gov/.

27 1 . FSMB, http://www.fsmb.org/m_fpdc.html (last visited Jan. 15,2010).

272. See, e.g., Virginia Board of Medicine Practitioner Information, http://www.
vahealthprovider.com/ (last visited Jan. 15, 2010).

273 . HHS NPRM, National Practitioner Data Bank for Adverse Information on Physicians and
Other Health Care Practitioners: Reporting on Adverse and Negative Actions, 7 1 Fed. Reg. 14139-
49 (Mar. 21,2006).

274. Lindsay A. Thompson et al., The Intersection of Online Social Networking with Medical
Professionalism, 23 J. Gen. Intern. Med. 954, 954 (2008).

275. Mat 956.

276. Id. ; see also Jeff Cain, Online Social Networking Issues Within Academia and Pharmacy
Education, 72 Am. J. Pharm. Educ. 10 (2008).

277. Thompson et al., supra note 274, at 955-56.

278. See infra note 292 and accompanying text.

279. See supra notes 274-77 and accompanying text.

280. 738 N.W.2d 300 (Minn. 2007).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 32 i



patients from harm by third persons and of the analogous tort of
negligent hiring, and given the general acceptance in the common law of
the tort of negligent selection of an independent contractor, as
recognized by the Restatement of Torts, we conclude that the tort of
negligent credentialing is inherent in and the natural extension of well-
established common law rights. 281

The Larson court's 2007 opinion identified twenty-seven states that have
recognized some form of the cause of action, 282 notwithstanding the difficult
causation issues such suits pose. 283

Although Larson recognized an action by the patient against the credentialing
hospital, an important, additional legal implication was discussed in Kadlec
Medical Center v. Lakeview Anesthesia Associates. 2U A patient in the plaintiffs
medical center emerged from routine tubal ligation surgery in a permanent
vegetative state. 285 The medical center settled a claim based on its respondeat
superior for the alleged negligence of a drug-addicted anesthesiologist. 286 The
medical center and its malpractice carrier then filed suit against the medical
group where the anesthesiologist had previously practiced and the hospital where
he worked and whose employees had discovered his drug abuse. 287 The group
had terminated the anesthesiologist for drug abuse but had not reported him to
the state medical board or NPDB. 288 Sixty-eight days after that termination
members of the anesthesiology group submitted referral letters to a locum service
that praised and recommended the physician yet failed to mention his drug abuse
or that he had been terminated with a letter that included the phrase "[y]our
impaired condition . . . puts our patients at significant risk." 289 The plaintiff
medical center's detailed credentialing request to the hospital where the
anesthesiologist had previously been credentialed was replied to with a brief and
neutral statement of the dates of his prior employment. 290 At trial, the jury found
for the plaintiff medical center on claims of intentional and negligent
misrepresentation, and awarded $8.24 million (the settlement and attorney's fees
in the original case). 291



281. Mat 306,

282. Id. at 306-07; see also Harrison v. Binnion, 214 P.3d 631, 635 (Idaho 2009) (holding
peer review immunity statute does not create immunity for negligent credentialing); Frigo v. Silver
Cross Hosp. & Med. Ctr., 876 N.E.2d 697 (111. App. Ct. 2007).

283. See, e.g., Davis v. St. Francis Hosp., No. 00C-06-045-JRJ, 2002 Del. Super. LEXIS 272,
at *9-10 (Del. Super. Ct. Oct. 17, 2002).

284. 527 F.3d 412 (5th Cir.), cert, denied, 129 S. Ct. 631 (2008).

285. Mat 417.

286. Id.

287. Mat 417-18.

288. Id. at 416.

289. Id. at 415.

290. Id. at 416.

291. Id. at 418.



322 INDIANA LAW REVIEW [Vol. 43:285



On appeal the Fifth Circuit reversed the verdict against the hospital on the
basis that under Louisiana law these facts did not give rise to an affirmative duty
to disclose; 292 a decision that may have been somewhat generous to the hospital
and that may not be replicated in other jurisdictions. However, the court did
affirm the judgment against the medical reference letter writers for affirmative
misrepresentation, noting that "[tjhese letters are false on their face and
materially misleading." 293

Healthcare institutions making credentialing or hiring decisions currently
face a dilemma when it comes to information about physicians contained in
social network profiles. Although there may be some risks in searching against
them (as discussed in the next section), the potential liability for making a
personnel decision in the absence of such information likely tips the balance.

B. Patients' Health-Related Information Online

Health-related information posted online by patients might include open
references to medical conditions or risk-taking (e.g., photographs of alcohol or
drug abuse) or quite explicit signals of risky behaviors (e.g., membership of the
Facebook page "I do really stupid stuff when I'm Drunk" 294 ). Other signals may
be more nuanced (e.g., membership of the Facebook fan page "A Glass of Wine
Solves Everything" 295 ). Equally, membership in some social groups related to
health conditions, although a relatively small number of persons join such
groups, 296 may operate as implicit signals regarding personal or family health
(e.g., membership of Facebook group pages relating to Cancer Survivors, 297
Chronic Fatigue Syndrome, 298 or Autism Awareness 299 ). Social network
discussions by sufferers and survivors are frequently cited as an emergent area
of powerful patient self-help. 300 But all such information may be of interest to



292. Id. at 422 ("The defendants did not have a fiduciary or contractual duty to disclose what
it knew to [plaintiff]. And although the defendants might have had an ethical obligation to disclose
their knowledge of [the anesthesiologist's] drug problems, they were also rightly concerned about
a possible defamation claim if they communicated negative information about [him].").

293. Id. at 419.

294. I Do Really Stupid Stuff When I'm Drunk, http://www.facebook.com/group.
php?gid=222270916 (last visited Feb. 12, 2010).

295. A Glass of Wine Solves Everything, http://www.facebook.eom/home.php#/group.
php?gid=2390228727 (last visited Jan. 15, 2010).

296. Fox, & Jones, supra note 63, at 17 (Only 6% of the cohort that looks for health
information online "have started or joined a health-related group on a social networking site.").

297. Cancer Survivors, http://www.facebook.com/home.php#/group.php?gid=22 14852731
(last visited Jan. 15,2010).

298. Chronic Fatigue Syndrome or Myalgic Encephalomyelitis, http://www.facebook.com/
group.php?gid=656750 18622 (last visited Jan. 15, 2010).

299. Autism Awareness, http://www.facebook.com/home.php#/group.php?gid=22079423 1
(last visited Jan. 15,2010).

300. See, e.g., Zachary A. Goldfarb, Seeking a Cure, Patients Find a Dose of Conversation



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 323



employers or health insurers, and hopefully with more beneficence, physicians
who search against their profiles.

L Employers and Insurers. — Published surveys in the general employment
world suggest that somewhere from one-quarter 301 to one-half of employers
search the social network sites of potential employees. 302 Surveyed employers
took particular note of suggestions of alcohol or drug use, inappropriate photos
or other posted information, and "unprofessional" screen names. 303 Of course,
sometimes, employee misconduct hardly needs any searching. The viral nature
of data posted on social network sites is immense. But a video made by two
pizza chain employees violating various health codes attracted one million views
on YouTube and resulted in felony charges for the employees. 304

Employer scrutiny of social network profiles implicates some legal risk when
information discovered therein migrates into employment decisions. 305 For
example, under federal law there is the potential for a discrimination action if a
candidate was not hired because of religious belief or a disability revealed or
suggested on a social network site. 306 Some state laws prohibit a broader list of
discriminations (e.g., sexual orientation in California 307 ). Going further, some
state laws apply privacy and non-discrimination principles to private activities
by employees. 308



Online, Wash. Post, July 21, 2008, at D01.

301. Heather Havenstein, One in Five Employers Uses Social Networks in Hiring Process,
COMPUTERWORLD, Sept. 12, 2008, http://www.computerworld.eom/s/article/91 14560/one_in_five_
employers_uses_social_networks_in_hiring_process (22%); see also Wei Du, Job Candidates
Getting Tripped Up by Facebook, Aug. 14, 2007, http://www.msnbc.msn.com/id/20202935/;
Melissa Newton, Employers Use My Space, Facebook to Screen Applicants, NBC DFW, Nov. 19,
2008, http://www.nbcdfw.com/news/business/Employers-Use-MySpace-Facebook-to-Screen-
Applicants.html.

302. Adam Lisberg, Employers May Be Searching Applicants ' Facebook Profiles, Experts
Warn, Daily NEWS (New York City), Mar. 10, 2008, http://www.nydailynews.com/money/2008/
03/1 0/2008-03- 10_employers_may_be_searching_applicants_fa.html (noting that 44% of
employers searched profiles of job candidates on social networking sites; 39% searched a current
employee's Facebook or MySpace pages).

303. Havenstein, supra note 301.

304. Stephanie Clifford, Video Prank at Domino 's Taints Brand, N. Y. TIMES, Apr. 15, 2009,
http://www.nytimes.com/2009/04/16/business/media/16dominos.html.

305. See generally Tari D. Williams & Abigail Lounsbury Morrow, Want to Know Your
Employees Better? Log on to a Social Network: But, Be Warned, You May Not Like What You See,
69 Ala. Law. 131,132 (2008) (describing an employer's exposure to liability through use of social
networking sites).

306. Civil Rights Act of 1964, 42 U.S.C. �� 2000e-2 (2006); Americans with Disabilities Act
of 1990,42U.S.C. 12101 (2006).

307. Cal. Gov't Code �� 12940(a) (West 2005 & Supp. 2006).

308. See, e.g., Cal. Lab. Code �� 96(k) (West Supp. 2010); Colo. Rev. Stat. Ann. �� 24-34-
402.5(1) (West 2008) ("It shall be a discriminatory or unfair employment practice for an employer
to terminate the employment of any employee due to that employee's engaging in any lawful



324 INDIANA LAW REVIEW [Vol. 43:285



Information posted in the pseudo-secluded world of a social network site
could signal certain genetic information. 309 This issue is clearly on the radar of
the Equal Employment Opportunity Commission (EEOC) as evidenced by a
recent Notice of Proposed Rulemaking (NPRM) issued under the Genetic
Information Nondiscrimination Act of 2008 (GINA). 310

GINA, signed into law in May 2008, broadly prohibits discrimination by
employers and health insurers based upon genetic information. One of GINA' s
key provisions is to characterize an "employer," 311 "employment agency," 312
"labor organization," 313 or "labor-management committee controlling
apprenticeship or other training or retraining" 314 that "requests], require [s], or
purchase [s] genetic information with respect to an employee or a family member
of the employee" as having engaged in an "unlawful employment practice." 315
GINA offers several safe harbors including "where an employer purchases
documents that are commercially and publicly available (including newspapers,
magazines, periodicals, and books, but not including medical databases or court
records) that include family medical history." 316 In the EEOC's 2009 NPRM
under GINA this exception is expanded to include "electronic media, such as
information communicated through television, movies, or the Internet, except that
a covered entity may not research medical databases or court records, even where
such databases may be publicly and commercially available, for the purpose of
obtaining genetic information about an individual." 317 In its commentary, EEOC
invited "public comment on whether there are sources similar in kind to those
identified in the statute that may contain family medical history and should be
included either in the group of excepted sources or the group of prohibited
sources, such as personal Web sites, or social networking sites." 318 An EEOC
decision to take the latter approach and to wall-off genetically-related social
network data from employer or insurer use would signal the first use of an
inalienability rule in the social network regulatory space.



activity off the premises of the employer during nonworking hours . . . .").

309. For example, membership on a certain Facebook page might signal about family concerns
regarding Type I diabetes (juvenile diabetes). See Find a Cure for Juvenile Diabetes,
facebook.com/group.php?gid=220481 1909 (last visited Feb. 12, 2010).

310. Notice of Proposed Rule-Making, Regulations Under the Genetic Information
Nondiscrimination Act of 2008, 74 Fed. Reg. 9056-01 (Mar. 2, 2009) (to be codified at 29 C.F.R.
pt. 163 5); Genetic Information Nondiscrimination Act of2008, Pub. L. No. 110-233, 122 Stat. 881.

311. Id �� 202(b).

312. Id �� 203(b).

313. Id �� 204(b).

314. Id �� 205(a).

315. Id ��� 205(a), 205(b).

316. Id ��� 202(b)(4), 203(b)(4), 204(b)(4), 205(b)(4).

317. Notice of Proposed Rule-Making, Regulations Under the Genetic Information
Nondiscrimination Act of 2008, 74 Fed. Reg. 9056-01 (Mar. 2, 2009) (to be codified at 29 C.F.R.
pt. 1635).

318. Mat 9063.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 325



In the meantime employers and insurers likely will argue that the law of
boundaries has little relevance to their activities. First, the intrusion tort would
not apply to a non-corporeal (or informational) seclusion. Second, any publicity
action should fail because the information searched is not "private" as it has been
disclosed to the social network user's "friends," although the use of the
discovered information does not satisfy the "publicity" requirement; the
broadcast "public" channel property is inapplicable and because the information
is only used "internally," plaintiff cannot meet the numerical touchstone required
for "private" channel cases.

The decisional law suggests some validity regarding the second of these
publicity arguments, at least in most cases of minimal distribution.
Notwithstanding and as argued below, the information should be viewed as
"private" when the user has applied privacy and security settings.

However, employers and insurers should be less sanguine about the
inapplicability of the seclusion tort. Case law already recognizes areas of
seclusion in otherwise public areas; 319 the question that is open is whether an
application of security and privacy settings will be the touchstone for delineating
a secluded space. The non-corporeal argument is more difficult. To an extent
the courts will face a core entitlement question; whether to consign to history the
trespass-like roots of the intrusion tort and apply it more liberally to
informational privacy. If they take this latter, less existential, approach the
appropriate doctrinal solution will be to pivot the tort around the offensiveness
of the intrusion rather than the locus of the seclusion. 320

2. Physician Use of Posted Social Information. — Employers and health
insurers may have understandable business reasons for searching online profiles.
But should physicians research their patients? And what should be done with
such information diagnostically?

Of course, not all patient-posted information allows for identification of
specific patients. As such, aggregated discussions by de-identified patients
provides an educational opportunity for physicians who wish to learn more about
generalized care models and patient perceptions and experiences associated with
particular illnesses or diseases. 321

However, Moreno and colleagues examined the profile pages of self-
described sixteen- and seventeen-year-olds in the "class of 2008" MySpace
group, and found that most were identifiable by name, photograph, location and
that "[n] early half of the adolescents . . . publicly disclosed sexual activity,
alcohol use, tobacco use, or drug use." 322 A similar study of sixteen- to eighteen-
year-olds across several social network sites by Williams and colleagues found



3 1 9. See supra note 1 05 and accompanying text.

320. See supra note 103 and accompanying text.

32 1 . Salil A. Mehta, What Can Physicians Learn from the Blogs of Patients with Uveitis?, 1 5
Ocular Immunology at Inflammation 42 1 , 423 (2007).

322. Megan A. Moreno et al., What Are Adolescents Showing the World About Their Health
Risk Behaviors on MySpace?, MEDSCAPE Gen. Med. (2007), available at http://medscape.com/
viewarticle/563320.



326 INDIANA LAW REVIEW [Vol. 43:285



"84% of profiles and blog discussions containing some type of risk-taking
behaviors," with nearly 50% of the participants at some risk of specific
identification. 323

The availability of this type of patient-specific information creates a classic
emerging technology problem for physicians. May they ethically and legally
access such information and, if they do, will they create a standard of care
requiring scrutiny of such online data? The first question is easier to answer;
general ethical standards suggest that physicians ask their patients' permission
to access such information, even if it is publicly available. This stance dovetails
with good risk management in that obtaining not just consent but informed
consent regarding the access and use of such data will reduce the likelihood of
either intrusion or malpractice actions. The second question, going to the
standard of care, is more difficult to answer. At the very least professional
specialty organizations (e.g., the American Psychiatric Association) should
consider developing clinical practice guidelines on the subject with a view to
preempting the indeterminacy of case-by-case development of the standard of
care.

3. Third Parties Posting Patient Information. — Physicians will seldom be
the direct source for patient-related health information that finds its way onto a
social network site. Patients themselves, or their "friends" will have posted most
such data. Some information may be sourced from providers (itself potentially
implicating breach of confidence or HIPAA) but posted by meddlesome third
parties. 324 Here, publicity and breach of confidence actions still may be
applicable. The controversies in the recent Minnesota case of Yath v. Fairview
Clinics, 325 began with a patient visit to a hospital clinic for STD testing. An
acquaintance related to the patient's husband worked at the clinic as a medical
assistant. 326 She recognized the patient and subsequently accessed her electronic
medical record. 327 There she discovered that the patient tested positive for a STD
and the fact that the patient had a new sexual partner. 328 The medical assistant
passed on the information to another employee and the information eventually



323. Amanda L. Williams & Michael J. Merten, A Review of Online Social Networking
Profiles by Adolescents: Implications for Future Research and Intervention, 43 ADOLESCENCE
253, 264 (2008).

324. See, e.g., Meade v. Orthopedic Assocs. of Windham County, No. CV064005043, 2007
Conn. LEXIS 3424, at *7 (Conn. Super. Dec. 27, 2007), 2007 Conn. Super. LEXIS 3424 (holding
when employee acquired and distributed patient records but action was only filed against health
facility that "[a] cause of action for invasion of privacy will not lie where the defendant did not
directly publicize the private facts about the plaintiff even though 'publicity was a natural and
foreseeable consequence' of the defendant's actions"). Of course the institution may be responsible
vicariously in some circumstances and might still face HIPAA liability.

325. 767 N.W.2d 34, 58 (Minn. Ct. App. 2009).

326. Id. at 38.

327. Id.

328. Id.



2010] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 327



became known to the patient's estranged husband. 329 After an investigation the
medical assistant was terminated by the hospital. 330 Shortly thereafter a My Space
page was created containing information from the patient's medical record. 331
The page was online for approximately twenty- four hours and likely was viewed
by only six people. 332 The patient brought action against most of the actors and
the hospital on several theories including public disclosure of private facts and
the private right of action provided by Minnesota's Health Records Act. 333 The
trial court granted the defendants' motions for summary judgment. 334

On appeal the court remanded the issue of the statutory private right of action
asserted by the patient against the hospital and the medical assistant to the trial
court, but not before ruling that such a state private right of action was not
preempted by the federal HIPAA code. 335 Instead, ruling that the provisions were
complementary: "[rjather than creating an 'obstacle' to HIPAA, Minnesota
statutes section 144.335 supports at least one of HIPAA 's goals by establishing
another disincentive to wrongfully disclose a patient's health care record." 336 A
similar analysis should apply to a common law action for breach of confidence
by a healthcare provider.

The Yath court affirmed the summary judgment on the public disclosure
count on the basis that the likely authors of the MySpace page had been
dismissed from the action. 337 Notwithstanding, the court exhaustively examined
the defendant's other contention that the "publicity" requirement 338 was not
satisfied by posting to a social network site that was only available for a short
time and viewed by a small number of people. 339 The court referenced a
controlling Minnesota analysis of RESTATEMENT (SECOND) OF TORTS section
652D 340 establishing the "publicity" element was satisfied by proving either, "a
single communication to the public," or "communication to individuals in such
a large number that the information is deemed to have been communicated to the
public." 341 The court viewed posting to a social network site as an example of
the former type of public communication because "[t]his Internet communication
is materially similar in nature to a newspaper publication or a radio broadcast



329. Id.

330. Mat 39.

331. Id.

332. Id. at 39, 43.

333. Id. at 39. Minn. Stat. Ann. �� 144.335 (West 2005) governed the case but has been
replaced by Minn. Stat. Ann. �� 144.298 (West Supp. 2010).

334. Yath, 767 N.W.2d at 40.

335. Id. at 50.

336. Id.

337. Id. at 45.

338. See supra text accompanying note 178.

339. Yath, 161 N.W.2d at 42-45.

340. Id. at 42.

341. Id.



328 INDIANA LAW REVIEW [Vol. 43:285



because upon release it is available to the public at large." 342 Analogizing this
brief web posting to "a late-night radio broadcast aired for a few seconds and
potentially heard by a few hundred (or by no one)" 343 or "a poster displayed in
a shop window," 344 the court noted:

It is true that mass communication is no longer limited to a tiny handful
of commercial purveyors and that we live with much greater access to
information than the era in which the tort of invasion of privacy
developed. A town crier could reach dozens, a handbill hundreds, a
newspaper or radio station tens of thousands, a television station
millions, and now a publicly accessible webpage can present the story
of someone's private life, in this case complete with a photograph and
other identifying features, to more than one billion Internet surfers
worldwide. This extraordinary advancement in communication argues
for, not against, a holding that the MySpace posting constitutes
publicity. 345

The Yath court specifically noted that the MySpace profile in question was not
one to which access had been restricted by "a password or some other restrictive
safeguard." 346 Thus, it left hanging the same question as the one in Moreno v.
Hanford Sentinel, Inc., 341 where, as previously discussed, a college student's
MySpace posting, critical of her hometown, found its way to the local
newspaper. 348 If a social network site user applies security and privacy settings,
would that render the site "secluded" for the purpose of initiating a breach of
seclusion action or "private" for the purpose of resisting a publicity claim?

The most efficient approach for courts to adopt would be a bright line
"posting" rule; that is, all posts, security or privacy settings notwithstanding, are
public. Such an approach would avoid the inevitable and possibly interminable
case-by-case debates whether "private" exposure of information to 10,100, or
even 1000 friends would be akin to a public post.

However, that approach seems contrary to Hill v. National Collegiate
Athletic Ass 'n 349 otherwise followed in Moreno. Hill upheld the NCAA's drug
testing program in a suit brought by student athletes arguing violation of
California' s constitutional right to privacy. 350 Subsequently, it may be have been
narrowed by the Supreme Court of California in Sheehan v. San Francisco 49ers,
Ltd 351 a case dealing with security pat-downs at a football stadium. Sheehan re-



342. Id at 43.

343. Id. at 44.

344. Mat 45.

345. Mat 44.

346. Id

347. 91 Cal. Rptr. 3d 858 (Ct. App. 2009).

348. See supra text accompanying note 147.

349. 865 P.2d 633 (1994).

350. Id at 669.

351. 201 P.3d 472 (Cal. 2009).



2010] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 329



emphasized Hill's statement about context: "assessment of the relative strength
and importance of privacy norms and countervailing interests may differ in cases
of private, as opposed to government, action." 352 Sheehan also stressed Hill's
observation that a plaintiffs privacy interests when bringing an action under
California's constitutional privacy right "may weigh less in the balance" 353 if he
or she "was able to choose freely among competing public or private entities in
obtaining access to some opportunity, commodity, or service." 354

Yet, in the context of the common law of boundaries, Hill's words remain
potent:

Privacy rights also have psychological foundations emanating from
personal needs to establish and maintain identity and self-esteem by
controlling self-disclosure: "In a society in which multiple, often
conflicting role performances are demanded of each individual, the
original etymological meaning of the word 'person' — mask — has taken
on new meaning. [People] fear exposure not only to those closest to
them; much of the outrage underlying the asserted right to privacy is a
reaction to exposure to persons known only through business or other
secondary relationships. The claim is not so much one of total secrecy
as it is of the right to define one's circle of intimacy — to choose who
shall see beneath the quotidian mask. Loss of control over which 'face'
one puts on may result in literal loss of self-identity, and is humiliating
beneath the gaze of those whose curiosity treats a human being as an
object." 355

The key privacy expectation acknowledged by the law of boundaries is this
"right to define one's circle of intimacy." 336 As citizens spend more of their time
in online environments and make responsible use of privacy and security settings
to disaggregate those with whom they interact, so the law should respect their
defined circles of intimacy.

C. Physicians and Patients as "Friends"

Suppose a physician "friends" a patient or vice versa. Does such blurring of
personal and professional relationships create concern in either the legal or
ethical domains? In the case of the former the primary question will be whether
such a blurred, technologically mediated relationship could give rise to the
legally significant physician-patient relationship. 357 In the ethical domain, the



352. Id. at 479 (quoting Hill, 865 P.2d at 656).

353. Id. (quoting Hill, 865 P.2d at 657).

354. Id.

355. 865 P.2d at 647 (alteration in original) (citations omitted) (quoting Briscoe v. Reader's
Digest Ass'n, Inc., 483 P.2d 34, 37 (Cal. 1971).

356. See id.

357. A related question is whether physician-patient contact through a social network could
constitute the continuation of a relationship for the purposes of tolling a period of limitation. See,



330 INDIANA LAW REVIEW [Vol. 43:285



question will come down to motive: is there a sense that the relationship is
driven by the needs of the physician rather than the interests of the patient?

Again, context is important in unpacking the boundary issues. The
appropriate question must be whether social or professional interests motivate the
physician who follows a patient on Facebook or Twitter. If the motivation is
social, then difficult boundary issues may arise. If professional (e.g., using social
media to extend the treatment space), difficult risk management questions arise.

1. Creating a Physician-Patient Relationship. — Most of the scenarios
discussed in this article assume the existence of a physician-patient relationship
and then discuss how physician or patient online activities will play out against
the healthcare regulatory matrix. Discussed, therefore, are scenarios such as
physicians searching their patients' social network sites or micro-blogging about
their treatment. Suppose, however, that there is no formed professional
relationship at the point when a patient and a physician interact online. Could
such interaction trigger the creation of a physician-patient relationship?

Such a relationship is both a conclusion and a term of art relied upon by the
ethical and legal domains. As an ethical construct, it is the foundation of duties
(and correlate expectations) of competence, respect, and confidence. 358 In the
legal domain, the existence of a physician-patient relationship establishes the
contractual responsibilities of the parties (such as the provision of services and
the obligation to pay) and is the predicate for the finding of a legal duty; a
requirement for tort recovery in the case of negligently provided care. 359

These domain-specific questions engender the question: what does it take
to create the physician-patient relationship? The doctrinal answer is that "the
relationship is created when professional services are rendered and accepted for
purposes of medical treatment." 360 The existence of a physician-patient
relationship is usually a question of fact left to the jury. 361 In practice, therefore,
the key issue is where the courts draw the summary judgment line.



e.g., Weaver ex rel. Weaver v. Univ. of Mich. Bd. of Regents, 506 N.W.2d 264, 266 (Mich. Ct.
App. 1 993); Griffith v. Brant, 442 N. W.2d 652, 654 (Mich. Ct. App. 1 989). See generally Jewson
v. Mayo Clinic, 691 F.2d 405, 408-09 (8th Cir. 1982) (discussing what constitutes evidence of a
continuing physician-patient relationship for the purposes of determining the statute of limitations
period for medical malpractice actions).

358. See, e.g., AMA, Principles of Medical Ethics (2001 ), http://www.ama-assn.org/ama/pub/
physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml.

359. See, e.g. , Sterling v. Johns Hopkins Hosp., 802 A.2d 440, 445 (Md. 2002); Kruger ex rel.
Estate of Kruger v. Jennings, No. 227480, 2002 WL 344268, at *3 (Mich. Ct. App. Apr. 1 2, 2002),
superseded by 2002 WL 652098; Pittman v. Upjohn Co., 890 S.W.2d 425, 431 (Tenn. 1994).

360. Miller v. Sullivan, 214 A.2d 822, 823 (N.Y. App. Div. 1995).

361 . See, e.g., Irvin ex rel. Irvin v. Smith, 3 1 P.3d 934, 940-41 (Kan. 2001); Lyons v. Grether,
239 S.E.2d 103, 105 (Va. 1977); Walker v. Jack Eckerd Corp., 434 S.E.2d 63, 69 (Ga. Ct. App.
1 993); Cogswell ex rel. Cogswell v. Chapman, 249 A.D.2d 865, 866 (N.Y. App. Div. 1 998); Bienz
v. Cent. Suffolk Hosp., 163 A.D.2d 269, 270 (N.Y. App. Div. 1990) ("Whether the physician's
giving of advice furnishes a sufficient basis upon which to conclude that an implied physician-
patient relationship had arisen is ordinarily a question of fact for the jury.").



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 33 1



Because of the consensual nature of the physician-patient relationship, courts
must determine in these cases whether the physician consented to treat the
patient. 362 Such consent can be express, implied, 363 or derived from a duty owed
by the physician to another. 364 In short, "whatever circumstances evince the
physician's consent to act for the patient's medical benefit." 365 This approach
explains most of the decisions related to the clusters of fact-patterns that are
relatively mature. For example, how courts navigate the distinction between the
informal (or "curbside") consult 366 and the formal (or "bedside") consult, 367 deal
with the responsibilities of on-call but non-treating physicians, 368 and respond to
cases where patients are examined by physicians employed by others such as
employers or insurers. 369



3 62 . "The physician may consent to the relationship by explicitly contracting with the patient,
treating hospital, or treating physician. Or the physician may take certain actions that indicate
knowing consent, such as examining, diagnosing, treating, or prescribing treatment for the patient."
Lownsbury v. VanBuren, 762 N.E.2d 354, 362 (Ohio 2002).

363. See, e.g., St. John v. Pope, 901 S.W.2d420,423(Tex. 1995) (stating that a doctor-patient
relationship can only be formed with the express or implied consent of physician).

364. See Bovara v. St. Francis Hosp., 700 N.E.2d 143, 146 (111. App. Ct. 1998) ("A consensual
relationship can be found to exist . . . where a physician accepts a referral of a patient [from another
physician]." (citations omitted)).

365. Lownsbury, 762 N.E.2d at 360.

366. See, e.g., Jrvin, 31 P. 3d at 943 (holding that an "extension of the physician-patient
relationship to include . . . [curbside] consultation would be contrary to public policy"); Oja v. Kin,
581 N.W.2d 739, 743 (Mich. Ct. App. 1998) (holding that "merely listening to another physician's
description of a patient's problem and offering a professional opinion regarding the proper course
of treatment is not enough [to form a patient-physician relationship]"); Corbet v. McKinney, 980
S.W.2d 166, 169 (Mo. Ct. App. 1998) (citing factors where a consulting physician may develop a
patient-physician relationship with a patient whom the consulting physician has never met or
spoken with). Cf. Gilinsky v. Indelicato, 894 F. Supp. 86 (E.D.N. Y. 1995) (determining if a
patient-physician relationship exists between a patient and a consulting physician depends on
whether the treating physician used independent judgment when accepting or rejecting advice of
consulting physician); Cogswell, 249 A.D.2d at 866 (holding that a telephone call can create a
patient-physician relationship if physician "affirmatively advises a prospective patient as to a course
of treatment and it is foreseeable that the patient would rely on the advice" (quotations omitted)).

367. See, e.g., Kelley v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 595
(Tenn. 2004) (distinguishing on call physicians from those participating in informal physician to
physician consults).

368. See, e.g., Prosise v. Foster, 544 S.E.2d 331, 334 (Va. 2001) (holding that there was no
patient-physician relationship because there was no evidence that physician agreed to take patient's
case by agreeing to act as an on-call attending physician in a teaching hospital); Wazevich v. Tasse,
No. 88938, 2007 Ohio App. LEXIS 4484, at *17 (Ohio Ct. App. Sept. 27, 2007) (finding that an
on-call doctor and emergency room patient may develop a patient-physician relationship depending
on the hospital' s procedures and whether physician took affirmative action on behalf of the patient).

369. See, e.g., Greenberg v. Perkins, 845 P.2d 530, 538 (Colo. 1993) (holding that an
independent medical examiner had a duty of care to not cause examinee harm); Dyer v. Trachtman,



332 INDIANA LAW REVIEW [Vol. 43:285



The cases dealing with technologically mediated, but not physical contact
between physician and patient, are less transparent. It does seem clear that "a
telephone call merely to schedule an appointment with a provider of medical
services does not by itself establish a physician-patient relationship where the
caller has no ongoing physician-patient relationship with the provider and does
not seek or obtain medical advice during the conversation." 370 Similarly, merely
scheduling a diagnostic test is likely insufficient. 371 As soon as there is
engagement in the treatment process by the physician; however, the relationship
may be held to exist. 372

The case that is closest to a social network scenario is Miller v. Sullivan™
where a dentist telephoned a friend who was a physician between 9:30 a.m. to
10:00 a.m., and informed him that he believed he was having a heart attack. 374
The physician allegedly told the dentist "to come over and see him right
away." 375 The dentist continued to see his own patients through the morning,
however, and did not reach the physician's office until the early afternoon at
which point he suffered a cardiac arrest. 376 The court upheld the defendant
physician's summary judgment 377 by finding the physician owed the decedent no
duty of care and therefore there was no breach of duty:

Assuming that a physician renders professional service for purposes of
medical treatment to a prospective patient who calls on the telephone
when the physician tells the caller to come to his office right away, the
record in this case conclusively establishes that decedent did not accept



679 N.W.2d 311, 3 14 (Mich. 2004) (holding that "an [independent medical examination] physician
has a limited physician-patient relationship with the examinee . . . [with] limited duties to exercise
professional care"); Harris v. Kreutzer, 624 S.E.2d 24, 32 (Va. 2006) (holding that "physician's
duty is limited solely to the exercise of due care ... as not to cause harm to the patient in actual
conduct of the examination"); Heller v. Peekskill Cmty. Hosp., 1 98 A.D.2d 265, 265-66 (N. Y. App.
Div. 1993) (citing factors plaintiff must prove to establish that an examining doctor consented to
a patient-physician relationship).

370. Weaver ex rel. Weaver v. Univ. of Mich. Bd. of Regents, 506 N.W.2d 264, 266 (Mich.
App. Ct. 1993).

371. Jackson v. Isaac, 76 S.W.3d 177, 184 (Tex. App. 2002).

372. Bienzv. Cent. Suffolk Hosp., 163 A.D.2d269,269,270(N.Y. App. Div. 1990)(holding
that a telephone conversation that includes recommendation for a course of treatment may give rise
to physician-patient relationship); Lam v. Global Med. Sys., Inc., 1 1 1 P. 3d 1258, 1261 (Wash. Ct.
App. 2005) (holding that ship-to-shore radio communication was sufficient to create physician-
patient relationship under the facts of the case); see also Cogswell ex rel. Cogswell v. Chapman,
249 A.D.2d 865, 866-67 (N.Y. App. Div. 1998) (holding that telephone consult may establish a
physician -patient relationship depending on physician's level of participation in patient's care).

373. 214 A.D.2d 822 (N.Y. App. Div. 1995).

374. Id. at 822.

375. Id. at 823.

376. Id.

377. Id.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 333



the professional service. Instead, decedent chose to pursue an entirely
different course of conduct than that recommended by defendant. 378

In conflating the issues of duty and breach, the Miller court made it less than
clear whether a physician-patient relationship existed on these facts. Arguably,
the court held that there was no such relationship because (and this is a different
approach from the cases discussed above) the patient failed to agree to the
relationship by rejecting the physician's advice. 379

Physicians seem to understand the perils of creating an unexpected, offline
physician-patient relationship. They show caution in social interactions (e.g., at
social gatherings, parties, etc.). This caution will need to be extended to online
interactions.

In the absence of a pre-existing physician-patient relationship the blog
scenario gives rise to issues that are similar to those encountered by physicians
in navigating email questions about health; more specifically, responding to
unsolicited email. 380 When a non-patient poses a health-related question to a
physician, be it through an email, a blog, or a social network site, the physician
has two core options; to ignore the question or to answer it. Ignoring such a
communication is not without some risks, particularly if the putative patient
describes an emergency situation. 381 Any kind of personalized response, let alone
any type of diagnosis or treatment advice, however, would likely create a jury
issue over the creation of a physician-patient relationship, even if disclaimers
accompanied the communication. 382 Rather, the only legally sound approach is
for the physician to respond to an electronic inquiry with a standard form
response, that in no way refers to the specific sender or the sender's disclosed
information, which ( 1 ) informs the questioner that the physician does not answer
such online questions, (2) supplies the questioner with the physician's offline
office information in case the questioner would like to make an appointment, and
(3) provides contact information for the emergency services and suggest the
questioner contacts same if he or she cannot wait for an appointment during
regular business hours.

2. Risk- Managing a Blurred Relationship. — The correlate of this scenario



378. Id.

379. Id.

380. See generally Gunther Eysenbach & Thomas L. Diepgen, Responses to Unsolicited
Patient E-mail Requests for Medical Advice on the World Wide Web, 280 JAMA 1333, 1333
(1998).

381. Cf. Patricia C. Kuszler, A Question of Duty: Common Law Legal Issues Resulting from
Physician Response to Unsolicited Patient Email Inquiries, J. Med. INTERNET RES. (2000),
available at http://www.jmir.org.2000/3/el 7; Mary V. Seeman & Bob Seeman, E-psychiatry: The
Patient-Psychiatrist Relationship in the Electronic Age, 161 Can. Med. Ass'N J. 1 147 (1999),
available at 1999 WLNR 189189 ("Clearly, the most judicious course of action is not to respond
to email queries.").

382. Cf. Eric E. Shore, Giving Advice on Social Networking Sites, 85 Med. ECON. 1 8 (2008),
available at 2008 WLNR 25457729.



334 INDIANA LAW REVIEW [Vol. 43:285



also requires attention. If one assumes an existing physician-patient relationship
and that the physician is utilizing social network tools to extend the treatment
space, what are the liability risks? Regarding the use of email communication
between patient and physician, the AMA stresses notification by the physician
to the patient of the risks and limitations of such communication. These include,
"potential breaches of privacy and confidentiality, difficulties in validating the
identity of the parties, and delays in responses." 383 Any such communication
should be preceded by informed consent regarding these risks. 384 Absent such
setting of professional and technological expectations (and boundaries) liability
risks may arise if a physician is not checking social network posts regularly (or
regularly as the patient posts) and fails to see, say, a time-sensitive diagnostic
signal. 385

3. Appropriateness of "Friend" Relationships. — Suppose that there is an
extant physician-patient and, hence professional relationship, but that a social or
personal relationship subsequently develops through a social network
intermediary. This phenomenon has received the most commentary regarding
employment relationships in situations where employers seek to friend
employees and exploit access to posted data such as opinions or photographs. 386

At the extreme, social relationships between physicians and patients can
involve sexual relationships. 387 The AMA characterizes "[sjexual contact that
occurs concurrent with the patient-physician relationship" as "sexual
misconduct." 388 Non-concurrent relationships may also be unethical "if the
physician uses or exploits trust, knowledge, emotions, or influence derived from
the previous professional relationship." 389 These concepts of trust, exploitation,
and the primacy of patient well-being help to tease out the application of ethical
principles to "friending" online.

Nadelson and Notman have helpfully explored these greyer areas of
physician-patient relationships. They differentiate between "minor boundary
crossings" that they do not regard as "exploitative" from those that they



383. AMA, Code of Medical Ethics �� 5.026(3)—The Use of Electronic Mail (2003),
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
ethics/opinion5026.shtml.

384. Id. �� 5.026(4).

385. See generally Chen, supra note 264.

386. See, e.g., Michelle Wilding, Is Your Boss Your Friend or Foe?, SYDNEY MORNING
Herald, May 19, 2009, http://www.smh.com.au/news/technology/biztech/is-your-boss-your-friend-
or-foe/2009/05/ 1 8/ 1 242498695453 .html?page=rullpage#contentSwap 1 .

387. See generally Paul S. Appelbaum et al., Sexual Relationships Between Physicians and
Patients, 154 ARCH. INTERN. MED. 2561 (1994); Linda J. Demaine, "Playing Doctor' with the
Patient 's Spouse: Alternative Conceptions of Health Professional Liability, 14 Va. J. Soc. Pol'y
& L. 308 (2007).

388. AMA, Code of Medical Ethics ��8.1 A — Sexual Misconduct in the Practice of Medicine
( 1 992), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
ethics/opinion8 H.shtml.

389. Id.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 335



categorize as "damaging boundary violations." 390 For the purposes of this
Article, the vocabulary Nadelson and Notman use to frame the issues is on point
here. In particular, they state:

An essential element of the physician's role is the idea that what is best
for the patient must be the physician's first priority. Physicians must set
aside their own needs in the service of addressing their patient's needs.
Relationships, such as business involvements, that coexist
simultaneously with the doctor-patient relationship have the potential to
undermine the physician's ability to focus primarily on the patients' well
being, and can affect the physician's judgment. 391

Some physicians argue that the use of social network tools to extend the
physician-patient relationship allows the patient to see the "human side" of the
physician. 392 However, as Nadelson and Notman observe, "at times self-
disclosure may be excessive and create difficulties. The patient may react
negatively and it may seem like a role reversal if the doctor begins to disclose
personal problems to the patient," and can create a "boundary problem because
it can use the patient to satisfy the doctor's own needs for comfort or
sympathy." 393 Specific ethical guidelines consistent with this approach caution
physicians regarding, for example, discussion of politics 394 or "derogatory
language or actions." 395 In short, the physician must be protective of the patient's
needs, and not his own.

D. Physicians "Tweeting" or Posting About Their Work

The modern Hippocratic Oath will include language such as "I will respect
the hard-won scientific gains of those physicians in whose steps I walk, and



390. Carol Nadelson & Malkah T. Notman, Boundaries in the Doctor-Patient Relationship,
23 J. Theoretical Med. 191, 192 (2002).

391. Id. at 195; see also Am. Psych. Ass'N, THE PRINCIPLES OF MEDICAL ETHICS WITH
Annotations Especially Applicable to Psychiatry 13 (2009), http://www.psych.org/
MainMenu/PsychiatricPractice/Ethics/ResourcesStandards.aspx (follow "The Principles of Medical
Ethics with Annotations Especially Applicable to Psychiatry" hyperlink) ("A psychiatrist shall not
gratify his or her own needs by exploiting the patient.").

392. See Stacey Butterfield, Twitter: A Medical Help, Hindrance or Hype?, ACP INTERNIST,
Apr. 2009, http://www.acpinternist.org/archives/2009/04/ twitter.htm; Carleen Hawn, Take Two
Aspirin and Tweet Me in the Morning: How Twitter, Facebook, and Other Social Media Are
Reshaping Health Care, 28 HEALTH AFFAIRS 361 (2009). See generally Chen, supra note 264.

393. Nadelson & Notman, supra note 390, at 197.

394. AMA Code of Medical Ethics �� 9.012 — Physicians' Political Communications with
Patients and Their Families ( 1 999), http://www.ama-assn.org/ama/pub/physician-resources/medical-
ethics/code-medical-ethics/opinion90 1 2.shtml.

395. AMA Code of Medical Ethics �� 9.123 — Disrespect and Derogatory Conduct in the
Patient-Physician Relationship, http://www.ama-assn.org/ama/pub/physician-resources/medical-
ethics/code-medical-ethics/opinion9 1 23.shtml.



336 INDIANA LAW REVIEW [Vol. 43:285



gladly share such knowledge as is mine with those who are to follow." 396 The
AMA Code of Medical Ethics includes in its description of the physician's role,
"a teacher who imparts knowledge of skills and techniques to colleagues." 397 Not
surprisingly physicians embrace new technologies to fulfill their educational
responsibilities. However, posting or "tweeting" about their work is not without
its risks.

1. B logging and Posting. — According to 2008 research, 12% of Internet
users (9% of all U.S. adults) "blog," while 33% of Internet users (24% of all
adults) read blogs. 398 Kovic and colleagues estimated that there are over one
thousand active English-language medical blogs, and found that these medical
bloggers are highly educated and that many had previously published scientific
papers. 399 Yet, only a relatively small number of participants in the medical
blogosphere identified themselves as healthcare professionals. 400 Seeman 401
identified the six most highly used health-related blogs as BadScience.net
(written by a U.K. physician who critiques media coverage of science), 402
Medgadget.com (written by MDs and biomedical engineers), 403 the journalist-run
Wall Street Journal Health Blog, 404 SharpBrains (concentrating on "brain fitness"
and "the cognitive health" market), 405 KevinMD.com (written by a New
Hampshire-based primary care physician; its associated Twitter site, @kevinmd,
has more than 20,703 "followers"), 406 and Diabetes Mine (a patient information
and support blog). 407

Lagu and colleagues examined 27 1 blogs written by healthcare providers and



396. The Hippocractic Oath: Modern Version, http://www.pbs.org/wgbh/nova/doctors/oath_
modern.html (last visited Jan. 15, 2010).

397. AMA Code of Medical Ethics �� 9.08 — New Medical Procedures, http://www.ama-
assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion908.shtml (last
visited Jan. 15,2010).

398. Aaron Smith, New Numbers for Blogging and Blog Readership, PEW INTERNET & Am.
Life Project, July 22, 2008, http://www.pewinternet.org/Commentary/2008/July/New-numbers-
for-blogging-and-blog-readership.aspx.

399. Id.

400. Ivor Kovic et al., Examining the Medical Blogosphere: An Online Survey of Medical
Bloggers, 10 J. Med. Internet Res. e28 (2008), http://www.jmir.org/2008/3/e28/; cf Deirdre
Kennedy, Doctor Blogs Raise Concerns About Patient Privacy (Nat'l Pub. Radio broadcast Mar.
13, 2008), available at http://www.npr.org/templates/story/story.php?storyId=88 163567 (noting
120,000 medical blogs).

401. Neil Seeman, Inside the Health Blogosphere: Quality, Governance and the New
Innovation Leaders, 1 ELECTRONICHEALTHCARE 101 (2008).

402. Bad Science, http://badscience.net/ (last visited Jan. 15, 2010).

403. Medgadget, http://medgadget.com/ (last visited Jan. 15, 2010).

404. Health Blog, http://blogs.wsj.com/health/ (last visited Jan. 15, 2010).

405. SharpBrains, http://www.sharpbrains.com/blog/ (last visited Jan. 15, 201 0).

406. Kevin MD.com Medical Weblog, http://www.kevinmd.com/blog/ (last visited Apr. 1,
2010).

407. Diabetes Mine, http://www.diabetesmine.com/ (last visited Jan. 15, 2010).



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 337



found that 42.1% described interactions with individual patients and 16.6%
included information detailed enough that patients could identify the provider or
themselves. 408 Eight blogs included imaging related to patients and three blogs
even showed identifiable photographs. 409 Patients were portrayed negatively in
17.7% of blogs; negative comments about the healthcare system appeared in
31.7% of blogs. 410

Certain types of blog posts, each with different levels of attendant risk, can
be identified. 411 The first, which will pose few legal risks, may be thought of as
"peer blogging," where healthcare providers seek to reach out to their colleagues
much as they do in offline channels such as medical journals or even professional
conferences, discussing new treatments, drugs, or technologies.

The second is the "ranting" blog post, where physicians might vent about
salaries, low health care reimbursement rates, long working hours, and other
issues that frustrate them. 412 Such posts could generate unwelcome attention
from peers, institutional providers, or medical boards. Suppose, for example, that
a physician posted, "I had a case today dealing with a patient previously seen by
Dr. Smith; I spent the best part of the day putting right what he did wrong!" Such
a communication is likely to get the attention of the peer who could sue for
defamation. 413 It might also attract scrutiny from professional organizations or



408. Tara Lagu et al., Content ofWeblogs Written by Health Professionals, 23 J. Gen. Intern.
Med. 1642-46(2008).

409. Id.

410. Id.

411. See generally Julia M. Johnson, Web Risk: Blogging Can Be a Medically Useful Tool
for Doctors; but Details Could Doom Your Career, Mo. Med. L. Rep., June 2008 (interview with
Nicolas Terry); Kennedy, supra note 400.

412. See Scott R. Grubman, Note, Think Twice Before You Type: Blogging Your Way To
Unemployment, 42 Ga. L. Rev. 6 1 5 (2008); see also David Kravets, AP Reporter Reprimanded For
Facebook Post; Union Protests, WIRED, June 9, 2009, available at http://wired.com/
threatlevel/2009/06/facebooksword (discussing various adverse employment disciplinary actions
brought by employers against Facebook-posting employees).

413.

In a suit for defamation, a private plaintiff must allege ( 1 ) publication of false statements

about the plaintiff that "expose [] [him] to distrust, hatred, contempt, ridicule or obloquy

or which cause [him] to be avoided, or which [have] a tendency to injure [him] in his

office, occupation, business or employment."

Saadi v. Maroun, No. 8:07-cv-1976-T-24-MAP, 2009 U.S. Dist. LEXIS 42574, *10 (M.D. Fla.

May 20, 2009) (quoting Cooper v. Miami Herald, 31 So. 2d 382, 384 (Fla. 1947)). The plaintiff

must also allege that the publication was "(2) done without reasonable care as to the truth or falsity

of those statements; and (3) that result in damage to that person." Id. (citing Hay v. Indep.

Newspapers, Inc., 450 So. 2d 293, 294-95 (Fla. Dist. Ct. App. 1984)). In Saadi, the court found

that the defendant's allegations, published on a blog that the plaintiff was an unemployed lawyer

and that his car was purchased with stolen money, to be triable whether they satisfy elements these

three of a defamation suit. Id. at *1 1-12. The court further found that even though the blog was

political in tone, there was a sufficient mix of fact and opinion as to be reasonably construed as



338 INDIANA LAW REVIEW [Vol. 43:285



medical boards for unethical conduct, 414 and could violate the terms of a contract
with an employing or credentialing healthcare institution.

The highest level of risk is associated with a blog posting that involves the
risk of a patient being identified. Here, both the breach of confidence tort and
HIPAA may be implicated. Physicians may use pseudo anonymous terms to
describe the cases they reference in an attempt to reduce the possibility of
positively identifying any patient in a blog discussion. Notwithstanding such
efforts, re-identification may be possible from detailed demographics, location,
as well as symptoms. Discussing general breaches of confidentiality, Brann and
Mattson note, "[unintentional confidentiality breaches have been overheard in
elevators, cafeterias, hallways, doctors' offices, and hospital rooms and at
cocktail parties." 415 The authors' typology of breaches included disclosures by
healthcare providers to their own family members 416 and to their friends. 417 As
they describe in the latter context (which is analogous to social network posts),

[i]n providing confidential information to friends, health care providers
run an even greater risk of harming patients. This is because they may
not be as aware of their friends' extended network of relationships as
they are of their family's. Consequently, they may have even less
control over who else might become privy to the confidential
information. 418

2. Twitter Feeds and Status Updates. — In February 2009, a surgeon at Henry
Ford Hospital in Detroit provided a real-time Twitter feed during his
performance of a robotic partial nephrectomy on a patient. 419 This was not a
rogue surgeon indulging a personal interest. Dr. Craig Rogers is a well-known
urologist and the feed, written by his chief resident, was publicized in advance



defamation. Id. at *14. In the example cited, the fact that the discussion would likely be predicated
on an actual patient or health problem would make it easier for courts to find defamatory statements
when mixed with opinion. Note also that First Amendment protection for derogatory blog posts
is limited. See, e.g., Richerson v. Beckon, 337 F. App'x 637 (9th Cir. 2009) (defense summary
judgment upheld in �� 1983 action by teacher against supervisor who was transferred after making
comments on her personal blog), amended by 08-35310, 2009 U.S. App. LEXIS 19327 (Aug. 27,
2009).

414. See, e.g. , AM A CODE OF Medical Ethics �� 9.03 1 — Reporting Impaired, Incompetent,
or Unethical Colleagues, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/
code-medical-ethics/opinion9031.shtml (specifying how such issues should be dealt with).

415. Maria Brann & Marifran Mattson, Toward a Typology of Confidentiality Breaches in
Health Care Communication: An Ethic of Care Analysis of Provider Practices and Patient
Perceptions, 16 HEALTH COMM. 231, 233 (2004) (citations omitted).

416. Id. at 244-45.

417. Id. dit 245.

418. Id.

419. Elizabeth Cohen, Surgeons send 'Tweets' from Operating Room, CNN.COM, Feb. 17,
2009, http://www.cnn.com/2009/TECH/02/! 7/twitter. surgery/index. html.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 339



by his hospital system. 420 The avowed purpose of the feed was "to get the word
out" about less invasive surgical techniques. 421

As previously noted, the AMA Code of Ethics mandates that either
contemporaneous or recorded observations of physician-patient interactions must
be preceded by explicit agreement and comprehensive informed consent.
Separate consents are required both for the original recording and any subsequent
broadcast. The consent must state that patient's decision will not affect the
medical care he or she receives. 422

These general rules are reinforced by various ethics opinions from specialty
organizations. 423 For example, in answer to the question, "May I use a videotape
segment of a therapy session at a work-shop for professionals?" the American
Psychiatric Association listed the following preconditions:

1. The patient gives fully informed, uncoerced consent that is not
obtained by an exploitation related to the treatment.

2. The proposed uses and potential audience are known to the patient.

3. No identifying information about the patient or others mentioned
will be included.

4. The audience is advised of the editing that makes this less than a
complete portrayal of the therapeutic encounter. 424

The common law privacy rules are consistent. Recall Vassiliades v.
GarfinckeVs, Brooks Brothers, where a physician published before and after
photographs of his patient via a television commercial. 425 The court found "[t]he
nature of the publicity ensured that it would reach the public." 426 It seems
reasonably clear that public Twitter feeds or unsecured Facebook pages will
satisfy the courts' emerging approach to "public" disclosure as discussed in
Yath. 421 As evidenced by the increased use of such feeds by public entities (such
as police departments), this is a broadcast medium designed to reach the
public. 428

The specific difficulty faced by physicians using social network real-time
broadcast technologies such as Twitter feeds or Facebook status updates is how



420. Live Surgery on Twitter, Please Join Physicians from Henry Ford for Our Next Live
Twitter Surgery Event on February 9th, http://www.henrvford.com/body.cfm?id=5 1168 (last visited
Jan. 15,2010).

42 1 . Cohen, supra note 419.

422. See supra text accompanying note 230.

423 . See, e.g. , Am. Psych. Ass'n, supra note 39 1 , at 24.

424. Id.

425. See supra text accompanying note 1 79.

426. Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 588 (D.C. 1985).

427. See supra text accompanying note 325.

42 8 . See, e.g. , Lisa Respers France, Police Departments Keeping Public Informed on Twitter,
CNN.COM, Mar. 13, 2009. http://www.cnn.com/2009/TECH/03/13/police.social.
networking/index.html; Jasmine Huda. Law Enforcement Turns to Twitter, KSDK.COM, June 19,
2009, http://www.ksdk.com/news/local/story.aspx?storyid=l 78 1 64.



340 INDIANA LAW REVIEW [Vol. 43:285



to satisfy the ethical and legal requirements of consent. Informed consent does
not scale well and application of consent requirements analogous to filming or
broadcasting patient treatments include quite specific (and close to impossible)
requirements of the disclosure of the audience that will see the broadcast.
Arguments that the patient was anonymous (or, in HIPAA terms, that the patient
information was de-identified) may not be sustainable given the likelihood that
some in a public audience would be able to deduce the identity of the patient.

One blogger has published "140 Health Care Uses for Twitter" 429 and,
perhaps, physicians pushing status updates from an emergency room honestly
believe that they are educating others about the practice of medicine. However,
if either the tweeting or the blogging is about patients, the admonition from
Nadelson and Notman requires reiteration; "what is best for the patient must be
the physician's first priority." 430

Conclusion

The issues examined in this article are about context. For many readers there
may be no issue deserving of legal resolution — merely bemusement that anyone
would act online in a manner analogous to wearing a t-shirt proclaiming "I Like
Weed" or "If You Can Read This, I've Been Paroled" to a job interview.
Similarly, it may be argued that the legal system should not rescue those with bad
judgment or concern itself with risky behavior that is exposed to all by users who
fail to make appropriate use of available privacy or security settings. As more
people lose their jobs or their health insurance because of what they post online
perhaps more users will employ these settings to disaggregate their "friends" or
otherwise modulate their online behavior. Equally, healthcare institutions,
teaching hospitals, and physician organizations are likely to make their views
about the online behavior of their physicians far more pointed and embed them
in normative form. From there such norms are likely to migrate to our legal and
regulatory systems.

The soft (even soft law) answers to many of the issues discussed in this
article are, first, to increasingly incorporate the issues raised into professional
training and institutional risk management strategies. Second, observe as press
and public opinion (combined with nudges from regulatory agencies such as the
FTC) force social network sites to increase the number and transparency of
protective online tools they make available to users. However, changes to their
architectures, such that robust privacy and security settings become the default,
challenge aspects of the services' business models and likely will not occur soon,
or willingly. Third, whatever the EEOC ends up proposing with regard to social
network data and GINA, we are likely to see legislatures or regulatory agencies
fashion some bright lines as to when posted data can or cannot be used in some
contexts or by some persons.



429. Phil Baumann, http://philbaumann.com/2009/01/16/140-health-care-uses-for-twitter/
(Jan. 16,2009, 14:21).

430. See supra text accompanying note 391.



20 1 0] LEGAL FRAMEWORK FOR SOCIAL NETWORKING 34 1



Beyond and, perhaps, before such amelioratory strategies, the common law
of boundaries must step up and protect responsible users online. True to its
context-based framework the law of boundaries should recognize private or
secluded areas that have been established by users of social network sites.



Voter Deception



Gilda R. Daniels"



Abstract

In our recent electoral history, deceptive practices have been utilized
to suppress votes in an attempt to affect election results. In most major
elections, citizens endure warnings of arrest, deportation, and even
violence if they attempt to vote. In many instances, these warnings are
part of a larger scheme to suppress particular voters, whom I call
"unwanted voters," from exercising the franchise. Recent advancements
in technology provide additional opportunities for persons to deceive
voters, such as calls alerting citizens that Republicans (Whites) vote on
Tuesday and Democrats vote (Blacks) on Wednesday.

In spite of this resurgence of deception, the statutes that are available
for enforcement have in many instances remained dormant. Even worse,
they are sometimes used against the very community that they were
originally written to protect. This dormancy has revealed a need for
clarity. This article exposes the deficiencies in the current state of the
law governing voter intimidation and deceptive practices. Moreover, it
attempts to correct those deficiencies within the confines of the
Constitutional framework.

Introduction

Because [of] the confusion caused by unexpected heavy voter

registration, voters are asked to apply to the following schedule:

Republican voters are asked to vote at your assigned location on

Tuesday .

Democratic voters are asked to vote at your assigned location on

Wednesday .

Thank you for your cooperation, and remember voting is a privilege.

— Franklin County, Where Government Works 1



* Assistant Professor, University of Baltimore School of Law. I would like to thank the
faculty at the University of Baltimore School of Law, the Southeastern Association of Law Schools
(SEALS) New Scholars Workshop, and particularly Professor William Funk from Lewis & Clark
Law School, who mentored me through the SEALS process; the Mid-Atlantic People of Color
Legal Scholarship Conference, Professors Henry Chambers from Richmond School of Law;
Cassandra Jones Harvard, University of Baltimore School of Law; and Muriel Morisey, Temple
University Beasley School of Law, for their helpful comments. Special thanks to the Indiana Law
Review for their patience and hard work on this Article. Finally, I would like to thank my
wonderful research assistants, Bjorn Thorstensen and Anne Wilkinson.

1 . National Campaign for Fair Elections, Examples of Deceptive Flyers 2004, at
1, 3, available at http://lccr.3cdn.net/f51celb593630cc86c_a7m6b9axu.pdf. In 2004, a flyer
containing this information was distributed in Franklin County, Ohio.



344 INDIANA LAW REVIEW [Vol. 43:343



In 2006, on Election Day in Prince George's County, Maryland, which is
predominately African American, 2 voters arriving at the polls received a voting
guide announcing that prominent African Americans had endorsed the
Republican candidates, including an African American U.S. Senate candidate. 3
The voting guide falsely suggested 4 that prominent Maryland Democrats were
endorsing Republican candidates in the hotly contested gubernatorial and U.S.
Senate election. 5 After the election, newly elected Senator Benjamin L. Cardin,
whom the African Americans had actually endorsed, testified before the U.S.
Senate Judiciary Committee regarding this false campaign literature and urged
the U.S. Attorney General to investigate. 6 The Department of Justice, however,
did not pursue the matter. Unfortunately, this is symptomatic of most claims
involving deceptive practices.

In the last half century, the U.S. Congress has journeyed into the world of



2. U.S. Census Bureau, State & County QuickFacts: Prince George's County, Md.
(2008), http ://quickfacts.census.gov/qfd/states/24/2403 3 .html.

3. National Campaign for Fair Elections.org, Examples of Deceptive Flyers
2006, at 1, 1, available at http://lccr.3cdn.net/58d2ee098f70fd887b_vom6bxgc8.pdf. The guide
was entitled "Ehrlich- Steele Democrats" and labeled an "Official Voter Guide." On the cover
were three prominent African American politicians: a former and the present county executive
and former congressman and President of the National Association for the Advancement of
Colored People (NAACP) Kweisi Mfume. Under their names read "[t]hese are OUR
choices." Id.', Prevention of Deceptive Practices and Voter Intimidation in Federal Elections:
Hearing on S. 453 Before S. Comm. on the Judiciary, 110th Cong. (2007) (statement of Sen.
Cardin).

4. Laura Vozzella, Michael Steele 's Sorry. So Sorry., BALT. Sun, Mar. 4, 2009, at A2.

5. National Campaign for Fair Elections, supra note 3. These prominent African
Americans had endorsed candidate Ben Cardin for the U.S. Senate. See Matthew Hay Brown,
Senate Bill Outlaws Campaign Trickery; Cardin Backs Curb on Bogus Endorsements, Balt. Sun,
Feb. 1, 2007, at B5. Additionally, the guide included a "Democratic Sample Ballot" that included
the correct date and times for the elections and endorsed Democratic candidates on all
levels — local, county, state, and federal. National Campaign for Fair Elections, supra note
3, at 2. Yet, the guide neglected to endorse the Democratic candidates for governor and U.S.
Senate. Id. It endorsed the re-election of the Republican governor and the election of African
American Republican U.S. Senate candidate Michael Steele. Id. The guide included a notation that
Ehrlich and Steele campaigns had "Paid and Authorized" the publication and distribution of this
campaign literature. Id. Media accounts also attributed the Ehrlich and Steele campaigns to
knowingly distributing this false information. See, e.g., Paul Rogat Loeb, Editorial, 'Election
Fraud' Cry Useful Tool for GOP, BALT. Sun, Mar. 18, 2007, at A23 (alleging that the Steele
campaign bussed homeless men to hand out misleading flyers).

6. At the Senate hearing, Senator Cardin said that, "[t]his type of deceptive literature is
despicable and outrageous. It is clearly designed to mislead African-American voters about
prominent endorsements by well-respected politicians." Prevention of Deceptive Practices and
Voter Intimidation in Federal Elections: Hearing on S. 453 Before S. Comm. on the Judiciary,
supra note 3 (statement of Sen. Cardin).



20 1 0] VOTER DECEPTION 345



election administration on three distinct and important occasions: the passage of
the Voting Rights Act of 1965 (VRA), 7 the National Voter Registration Act of
1993 (NVRA), 8 and the Help America Vote Act (HAVA). 9 Despite recent
debates, new legislation, and the continued enforcement of various voting
statutes, problems persist in the operation of our participatory democracy. 10
Legislation has done little to forward the debate on the preeminence and
resurgence of voter intimidation and deceptive tactics. The most recent
legislation, NVRA and HAVA, dealt primarily with election administration
issues, such as voter registration and machinery. 1 l An overlooked area involving



7. The Voting Rights Act, 42 U.S.C. �� 1 973 (2006). This Act, which has been heralded as
the most effective piece of congressional legislation in our nation's history, outlawed practices such
as literacy tests, empowered federal registrars to register citizens to vote, and gave the Attorney
General the power to bring widespread litigation instead of the piecemeal approach of the past. As
a result, wide disparities between Blacks and Whites in voter registration narrowed considerably
throughout the South and the number of African American elected officials increased tremendously.
See S. REP. 94-295, at 1 1 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 777 (noting that the VRA
was "hailed by many to be the most effective civil rights legislation ever passed" in this country).

8. 42 U.S.C. �� 1973gg (2006). The stated purpose of the NVRA is to increase voter
registration and participation. Id. The law also provides uniform standards for maintaining the list
of registered voters, conducting voter purges and provides additional safeguards under which
registered voters would be able to vote notwithstanding a change in address in certain
circumstances. Id. �� 1973gg-3.

9. Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified
at 42 U.S.C. ��� 15301-15545 (2006)). The stated purpose of HAVA is

to establish a program to provide funds to States to replace punch card voting systems,
to establish the Election Assistance Commission to assist in the administration of
Federal elections and to otherwise provide assistance with the administration of certain
Federal election laws and programs, to establish minimum election administration
standards for States and units of local government with responsibility for the
administration of Federal elections, and for other purposes.
Id.

10. During the 2008 election, nonpartisan organizations chronicled numerous voting
irregularities in voter registration, felon disenfranchisement, long lines at the polls, poll watcher
challenges, unwarranted challenges to student voters, and deceptive practices. See, e.g., Hearing
on Lessons Learned from the 2008 Election Before Subcomm. on Constitution, Civil Rights, and
Civil Liberties of the H. Comm. on the Judiciary, 1 1 1th Cong. 1 (2009) (statement of Tova Andrea
Wang, Vice President, Research, Common Cause); id. (statement of Hilary O. Shelton, Director,
Washington Bureau, NAACP); see also Protecting the Right to Vote: Oversight of the Department
of Justice's Preparations for the 2008 General Election: Hearing Before S. Judiciary Comm.,
1 1 lth Cong. 1 (2008) (statement of Gilda R. Daniels, Assistant Professor, University of Baltimore
School of Law).

1 1 . "HAVA defined minimum election administration standards that all states must follow,
notably in the areas of voter identification and database management." Debra Miiburg, Note, The
National Identification Debate: "Real ID " and Voter Identification, 3 1/S: J.L. & POL' Y FOR INFO.
Soc'Y 443, 458 (2008); see also Bruce E. Cain, Election Administration: Still Broken After All



346 INDIANA LAW REVIEW [Vol. 43:343



voter access concerns the proliferation of deceptive acts and voter intimidation.
Each of these phenomena requires exemplification.

A person or group intentionally places an anonymous flyer in a mailbox,
leaves a voicemail message, distributes a campaign publication on Election Day,
or sends an email prior to early voting — all containing misleading and false
information. The information is often plausible: it could address the expected
massive turnout at an election and, thus, the need to extend voting to Tuesdays
for Republicans (Whites) and Wednesdays for Democrats (Blacks). 12

Deceptive practices tend to target racial and language minorities and are a
throwback to the post-Reconstruction, Jim Crow-era tactics that sought to deny
minority citizens the right to freely participate in the electoral process. 13 Voter
intimidation became a primary and deadly issue after the Civil War and during
Reconstruction, 14 when newly freed slaves were systematically denied their right



These Years, 8 ELECTION L.J. 219 (2009) (reviewing VOTING IN AMERICA, VOL. 3, AMERICAN
Voting Systems in Flux: Debacles, Dangers, and Brave New Designs (Morgan E. Felchner
ed., 2008)); Daniel P. Tokaji, The Birth and Rebirth of Election Administration, 6 ELECTION L.J.
1 1 8 (2007) (reviewing Roy G. Saltman, The History and Politics of Voting Technology:
In Quest of Integrity and Public Confidence (2006)).

12. See, e.g. , National Campaign for Fair Elections, supra note 1 . The now infamous
flyer from Franklin County, Ohio, pretended to come from the County Board of Elections urging
Republicans and Democrats to vote on different days; the Republican-designated day was the true
Election Day. Id. Deceptive election flyers often falsely indicate the wrong date for an election.
Id.; see also infra note 32 (showing a flyer distributed prior to the November 4, 2008 federal
election falsely alerting voters that in an emergency General Assembly session the Virginia
legislature "adopted the following [sic] emergency regulations to ease the load on local electoral
[sic] precincts and ensure a fair electoral process" that Republicans would vote on Tuesday,
November 4, and Democrats on Wednesday, November 5; the flyer was distributed in the
predominately minority areas of Hampton Roads, VA). Additionally, at George Mason University
in Fairfax, Virginia, observers described "official-looking flyers" stating that due to the projection
of high voter turnout, Democrats should vote the day after the general election, November 5.
Thomas Frank & Richard Wolf, Pranks, Mischief Reach Higher Level at Colleges, USA Today,
Nov. 5, 2008, at 10A (detailing bogus emails sent to students at George Mason University stating
that voting on campus had been moved back one day and discussing problems at other campuses
such as Ohio State and Florida State where students received text messages to the same effect, and
at Virginia Tech, where students received mass-emails via Facebook regarding bogus changes to
voting schedules); see also Election Protection 2008: Helping Voters Today, Modernizing
the System for Tomorrow, Preliminary Analysis of Voting Irregularities 12 (2008),
available at www.866ourvote.org/tools/documents/files/0077.pdf.

1 3 . Alexander Keyssar, The Right to Vote: The Contested History of Democracy
in the United States 258-59 (2000) (describing tactics that segregationists used during the Jim
Crow era to "thwart" Black political participation, including literacy tests, grandfather clauses, poll
taxes, "understanding test[s]" purges and in some instances murder).

14. See, e.g., Tracy Campbell, Deliver the Vote: A History of Election Fraud, an
American Political Tradition — 1 742-2004, at 46 (2005) (stating that in the mid- 1 800s violent
action meant to intimidate voters had reached disturbing levels); see also Gilda R. Daniels, A Vote



20 1 0] VOTER DECEPTION 347



to vote in Southern states through the use of violence and threatening tactics. 15
The South enacted measures, such as poll taxes, literacy tests, and all- White
primaries that would limit the effect of the new and populous electorate. 16
Efforts to disenfranchise African American voters persisted after the Civil War
to counter the efforts of newly freed slaves effort to obtain equal access to the
ballot. * 7 Indeed, during the Civil Rights Movement, the primary disenfranchising
and intimidating efforts were organized around registering voters and providing
access to the electoral process. In 1 957, Dr. Martin Luther King, Jr., emphasized
the "conniving methods" that were used to prohibit Negroes from registering to
vote. 18 Although historical accounts of voter intimidation are often full of death
threats and fear, today's intimidation and deception tend to exist in a less fatal
form, but continue to target minority communities. 19 Threats of incarceration or



Delayed Is a Vote Denied: A Preemptive Approach to Eliminating Election Administration
Legislation that Disenfranchises Unwanted Voters, 47 U. LOUISVILLE L. REV. 57 (2008).

1 5 . Rayford W. Logan, The Betrayal of the Negro: From Rutherford B. Hayes to
Woodrow Wilson 91 (Da Capo Press 1997) (1954). At the dawn of the twentieth century,
segregationists employed the country's most violent measures to ensure White political supremacy.
Id. In 1900, South Carolina Senator "Pitchfork" Ben Tillman, who led that state's push for
segregation, said, "[w]e have done our level best, ... we have scratched our heads to find out how
we could eliminate the last one of them. We stuffed ballot boxes. We shot them .... We are not
ashamed of it." Id.

16. Keyssar, supra note 13, at 1 1 1-12.

In short order, other states followed suit, adopting — in varying combinations — poll
taxes, cumulative poll taxes . . . literacy tests, secret ballot laws, lengthy residence
requirements, elaborate registration systems, confusing multiple voting-box
arrangements, and eventually, Democratic primaries restricted to white voters. Criminal
exclusion laws also were altered to disfranchise men convicted of minor offenses, such
as vagrancy and bigamy.
Id.

1 7. See Erika Wood, Brennan Center for Justice, Restoring the Right to Vote 7-8,
available at http://www.soros.org/initiatives/usprograms/focus/justice/articles_publications/
publications/restoring_20080226/Brennan_Restoring Vote_2008.pdf.

18. Dr. Martin Luther King, Jr., decried deceptive practices and intimidation in his Give Us
the Ballot speech. Dr. King stated: "[A]ll types of conniving methods are still being used to
prevent Negroes from becoming registered voters. The denial of this sacred right is a tragic betrayal
of the highest mandates of our democratic tradition." Dr. Martin Luther King, Jr., Give Us the
Ballot, Address at the Prayer Pilgrimage for Freedom (May 17, 1957), available at http://mlk-
kppO 1 .stanford.edu/primarydocuments/Vol4/ 1 7-May- 1 957_GivesUsTheBallot.pdf.

1 9. See, e.g. , NAT'L NETWORK FOR ELECTION REFORM, DECEPTIVE PRACTICES AND VOTER

Intimidation 1 , flva//a6/eo/http://www.nationalcampaignforfairelections.org/page/-/Deceptive%
20Practices%20Network%20Issue%20Paper.pdf (describing deceptive and intimidating voting
practices in minority communities including the following: In 1998, in South Carolina, a state
representative mailed 3,000 brochures to African American neighborhoods, claiming that law
enforcement agents would be "working" the election, and warning voters that "this election is not
worth going to jail!!!!!!"). The African American community has been and continues to be a



348 INDIANA LAW REVIEW [Vol. 43:343



deportation instead of death often accompany voter intimidation and deception
efforts. 20 For example, in 2006, in certain counties in Virginia with considerable
minority populations, voters received automated calls misinforming them that
they would be arrested if they tried to vote on Election Day and falsely reported
that their polling places had changed. 21 Consequently, conniving methods
continue to exist and adopt new forms.

In the 2008 federal election, the country also saw the proliferation of the use
of the Internet in both political campaigns 22 and advancing political
misinformation. 23 The government's inability to prosecute offenders for printed
flyers or other traditional methods of conducting deceptive practices maximizes
the possibility of propagating misinformation via the Internet. 24 The resulting
blow to public confidence discourages citizens from participating in the electoral
process.

Voter deception involves, inter alia the distribution of misinformation
regarding the time, place, and manner of elections as well as voter eligibility. 25



longstanding target of threatening tactics. Id.

20. See, e.g., id. In 2006, roughly 14,000 Democratic voters with Spanish surnames in
Orange County, California received letters before the November 7 election falsely warning that
immigrants could face jail time or deportation for vote. Id.

21. See Lawyers Committee for Civil Rights Under Law, Incidents of Deceptive
Practices and Voter Intimidation in the 2006 Elections, available at http://lccr.3cdn.
net/d6af26cb31ff5 eel66_vlm6x6x5.pdf.

22 . See, e.g. , Matthew Fraser & Soumitra Dutta, Obama andFacebook Effect: His Masterful
Use of Web Tools Helped Him Win the Presidency, MEDIA WEEK, Nov. 24, 2008, at 10, available
at 2008 WLNR 2592289 1 ; Joe Garofoli, Obama Eyes New Role for Internet, S.F. Chron., Nov.
24, 2008, at Al; Laura Olsen, Obama Team Capitalizes on Link to Youth, Cffl. Trib., Nov. 26,
2008, at 7C.

23. See, e.g., Ben Conery, Electronic Scams Attempt to Keep New Voters at Home, WASH.
TIMES, Nov. 5, 2008, at B02 (discussing voter-suppression tactics where the perpetrators utilized
text messages and Facebook and detailing Facebook messages that said election schedules had
changed or that various parties were supposed to vote on different days). The article also discusses
problems at Drexel University where students were told via flyers that they "would be arrested at
the polls if they had unpaid parking tickets." Id. Overall, however, according to the article,
incidents of voter suppression were far less prominent and on a much lesser scale than in past
elections. Id.; see also Common Cause, The Lawyers Committee for Civil Rights Under Law and
the Century Foundation, Deceptive Practices 2.0: Legal and Policy Responses (on file with
author); Dan Morain, Some Obama Links Will Mislead, L.A. TIMES, Aug. 30, 2008, at A18; Joy-
Ann Reid, Bogus Emails Raise Anxiety Over Voter ID Law, S. FLA. TIMES, Oct. 3, 2008, at Al .

24. The use of computers and other electronic mechanisms in the distribution of political
information has created yet another difficulty in thwarting these activities. Federal and state laws
are ill-equipped for Internet based deception. See infra Part I.A.2.

25 . The prevalence of deceptive practices and misinformation in the political arena has raised
the profile of several websites dedicated to providing accurate information. See, e.g.,
FactCheck.org, http://www.factcheck.org/ (last visited Oct. 7, 2009); PolitiFact.com, http://www.
politifact.com/truth-o-meter/ (last visited Oct. 7, 2009); Snopes.com; http://www.snopes.com/



20 1 0] VOTER DECEPTION 349



These deceptive practices regularly have as their main objective to misinform
unwanted minority, elderly, disabled, and language-minority voters 26 in an effort
to suppress votes. 27 Generally, the proliferation of misleading documents is
utilized to confuse and thwart eligible voters from participating in the electoral
process.

Many flyers are falsely disseminated in the name of an official governmental
agency. 28 Additionally, the surge of computers, cell phones, and other
technology continues to hinder the identification of persons engaging in e-
deception. 29 Although these examples are a departure from heated campaign
battles, their reach is far and their impact discernible.

Efforts to deny voters the opportunity to participate in the electoral process
are not often investigated or litigated for myriad reasons, including the lack of
clear statutory authority and willingness to enforce. 30 Although the intent of
these practices is often clear and invidious, i.e., to suppress minority votes, it is
often difficult to know how many people are affected by voter intimidation or
deception. 3 ' The anonymous nature of deceptive flyers and electronic documents



politics/politics.asp (last visited Oct. 7, 2009) (containing a section on its website specifically
addressing political myths).

26. See Daniels, supra note 14, at 58 (defining unwanted voters as "the disabled, elderly,
poor, or minority voter").

27. See, e.g. , Prevention of Deceptive Practices and Voter Intimidation: Hearing Before the
S. Comm. on the Judiciary, supra note 3 (statement of John Trasvina, President and General
Counsel, Mexican Am. Legal Def. and Educ. Fund); Ian Urbina, Democrats Fear Disillusionment
in Black Voters, N.Y. TIMES, Oct. 27, 2006, at Al, available at http://www.nytimes.com/2006/
10/27/us/politics/27race.html?pagewanted=all.

28. Prior to the 2008 federal election in Virginia, an anonymous flyer with the state seal,
distributed in minority areas in Hampton Roads, Virginia, indicated that Republicans would vote
on Tuesday and Democrats on Wednesday. Julian Walker, State Police Investigate Source of
Phony Election Flier, VA.-PlLOT, Oct. 30, 2008, available at http://hamptonroads.com/2008/10/
state-police-investigate-source-phony-election-flier. Police investigated the source of the flyer and
instead of filing charges decided that it was a "joke that got out of control." Id.; Julian Walker,
Officials Find Source of Fake Election Flier, Won 't Press Charges, VA.-PlLOT, Nov. 3, 2008,
<jv'a//<36/ea/http://hamptomoads.cony2008/ll/officials-find-source-fake-election-flier-wont-press-
charges. Virginia is one of the few states that actually has a statute outlawing deceptive practices
in voting, classifying it as a Class 1 misdemeanor. See Va. Code Ann. �� 24.2-1005.1 (2007).

29. Although convicted for an illegal voter suppression scam, Allen Raymond, author of How
to Rig an Election: Confessions of a Republican Operative (2008), stated in a National Journal
article that "[a]n e-mail is far more traceable than an anonymous flier." See, e.g., David Herbert,
Voter Suppression Hits the Web, Nat'L J. ONLINE, Oct. 29, 2008, www.nationaljournal.
com/njonline/print _friendly.php?ID=no_20081027_9705.

30. See infra Part H.A.

31. People for the American Way Foundation, The Long Shadow of Jim Crow: Voter
Suppression in America 3-4 (2004), available at http://67.192.238.59/multimedia/pdf/Reports/
thelongshadowofjimcrow.pdf (noting that approximately four million Americans were denied the
right to vote in 2000 and included voter deception and intimidation as causes).



350 INDIANA LAW REVIEW [Vol. 43:343



makes it immensely difficult to determine the source of publication and tends to
thwart investigations and prosecutions. 32 These practices, however, have
significant consequences for individual voters attempting to exercise their
fundamental right to vote. Moreover, these practices threaten the integrity and
legitimacy of the democratic process.

Despite this resurgence of suppression, the federal government has
underutilized its ability to litigate these types of cases. In fact, the Justice
Department said that it lacked the authority to pursue these cases, despite their
potential impact on the fundamental right to vote. 33 The federal government has
statutes at its disposal to prevent voter intimidation and deceptive practices. 34
But statutes penalizing voter intimidation are rarely used 35 and have historically
been unsuccessful. 36

Legal scholars have addressed the effect of voter identification and voter
fraud on voter confidence and the integrity of the democratic system. 37 Law



32. See sources cited supra note 28.

33. Hearing Before the S. Judiciary Comm., supra note 10.

34. See infra Part II.A.

35. For example, the Department of Justice has brought only four cases in the history of
Section 1 1(b) in the VRA's forty-five-year history. See infra Part II.A.2.

36. See discussion infra Part II.A. 1 -2.

37. See, e.g., Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the
Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements, 1 2 1
Harv. L. Rev. 1737, 1750-51 (2008) (arguing the use of photo identification requirements bears
little correlation to the public's beliefs about the incidence of fraud); Atiba R. Ellis, The Cost of the
Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy, 86 Denv. U. L. Rev.
1 023, 1 066 (2009) (arguing that "the history of the right to vote has been a steady struggle between
those who wish to constrain or restrict the vote by raising the cost and those who wish to make the
vote more accessible by lowering the costs" and these costs must be factored into voting rights
jurisprudence to ensure free and accessible elections); Chad Flanders, How to Think About Voter
Fraud (and Why), 41 CREIGHTON L. Rev. 93, 97 (2007) (proposing "that the right of participation,
though perhaps only denied to a few when new voter requirements are put in place, is the most
relevant (and serious) harm to analyze in the voter fraud debate"); Richard L. Hasen, The Untimely
Death of Bush. v. Gore, 60 Stan. L. Rev. 1 (2007); Spencer Overton, Voter Identification, 105
Mich. L. Rev. 63 1 , 63 1 (2007) (arguing that "policymakers should instead examine empirical data
to weigh the costs and benefits of [I.D.] requirement[s]" because "[ejxisting data suggest that the
number of legitimate voters who would fail to bring photo identification to the polls is several times
higher than the number of fraudulent voters, and that a photo-identification requirement would
produce political outcomes that are less reflective of the electorate as a whole"); Richard Tyler
Atkinson, Note, Underdeveloped and Overexposed: Rethinking Photo ID Voting Requirements,
Note, 33 J. Legis. 268, 269 (2007) (arguing "that photo ID requirements fail to fulfill their primary
purpose (the prevention of fraud); in fact, photo ID requirements decrease legitimate voter turnout
(and therefore may increase the impact of fraud"); Andrew N. DeLaney, Note, Appearance Matters:
Why the State Has an Interest in Preventing the Appearance of Voting Fraud, 83 N.Y.U. L. REV.
847 (2008) (arguing that the state has an interest not only in preventing voting fraud, but also in
preventing the appearance of voting fraud), and arguing the constitutionality of photo identification



20 1 0] VOTER DECEPTION 35 1



review articles have also discussed voter intimidation on the state and local
levels. 38 Most scholars and statutes conflate fraud with intimidation and
deceptive practices, 39 without illuminating the nuances that make deceptive
practices an identifiable and worthy cause of action. The lack of a well-defined
statute coupled with poor enforcement and deficient deterrents necessitate a
reasoned view of ways to uphold the democratic principles of equal access to the



requirements in elections); Samuel P. Langholz, Note, Fashioning a Constitutional Voter-
Identification Requirement, 93 IOWA L. Rev. 73 1 , 73 1 (2008) (examining "the results of these legal
challenges and suggesting] the parameters in which a state legislature can fashion a constitutional
voter-identification requirement"); Aaron J. Lyttle, Note, Constitutional Law — Get the Balance
Right: The Supreme Court 's Lopsided Balancing Test for Evaluating State Voter-Identification
Laws; Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008), 9 Wyo. L. Rev. 281,
283 (2009) (arguing that the Supreme "Court adopted a lopsided balancing test, placing greater
emphasis on states' interests in preventing fraud than on the risk of burdening voting rights" and
"the Court's failure to weigh voters' interests against those of the state leaves the prior confusion
untouched, thus endangering voting rights"); Milburg, supra note 1 1, at 466 (discussing "recent
developments and ongoing controversies concerning the REAL ID Act of 2005" and "explores the
ramifications of a national identification card on the recent state trend of requiring identification
at the polls").

38. See, e.g., Anita S. Earls et al., Voting Rights in North Carolina: 1982-2006, 17 S. Cal.
Rev. L. & Soc. Just. 577, 588 (2008) (discussing voting rights violations in North Carolina from
1 982 to 2006 and summarizes the various barriers that minority voters in North Carolina voters still
face, including intimidation against minority voters and lack of proper accommodations for disabled
voters); Patrick J. Troy, No Place to Call Home: A Current Perspective on Troubling
Disenfranchisement of College Voters, 22 WASH. U. J.L. & POL' Y 591,616 (2006) (discussing voter
intimidation of college students and proposing solutions to that problem, such as locating polling
places on campus and creating a national standard for voter residency requirements); Katie Fowler,
Note, Deceptive Voting Practices and Voter Intimidation in the Wake o/United States v. Charleston
County, 2 Charleston L. Rev. 733, 749 (2008) (tracing the presence vote dilution among minority
voters in at large elections in South Carolina before United States v. Charleston County, 316 F.
Supp. 2d 268 (D.S.C. 2003), and the impact that decision had on such voting systems).

39. See, e.g., U.S. Election Assistance Comm'n, Election Crimes: An Initial Review
and Recommendations for Future Study 13-14 (2006), http://www.eac.gov/
clearinghouse/docs/reports-and-surveys-2006electioncrimes. pdf^attachmentdownload/file, which
defines election crimes, i.e., vote fraud, intimidation and deception as follows:

[IJntentional acts or willful failures to act, prohibited by state or federal law, that are

designed to cause ineligible persons to participate in the election process; eligible

persons to be excluded from the election process; ineligible votes to be cast in an

election; eligible votes not to be cast or counted; or other interference with or

invalidation of election results. Election crimes generally fall into one of four

categories: acts of deception, acts of coercion, acts of damage or destruction, and

failures or refusals to act.

Id. at 13 (emphasis added); see also Jocelyn Friedrichs Benson, Voter Fraud or Voter Defrauded?

Highlighting an Inconsistent Consideration of Election Fraud, 44 Harv. C.R.-C.L. L. Rev. 1, 1

(2009) (defining election-related fraud into categories of "voter-initiated" and "voter-targeted").



352 INDIANA LAW REVIEW [Vol. 43:343



franchise.

The Equal Protection Clause of the Fourteenth Amendment 40 provides the
means for governments to exercise their authority to address voter deception. In
Crawford v. Marion County Election Board, 41 the Supreme Court found that
Indiana had a compelling interest in preventing fraud, in part because doing so
preserved public confidence and legitimate votes from dilution. 42 Likewise, the
Supreme Court has found that states possess a compelling interest in preventing
voter intimidation. 43 A comparable state interest applies to voter deception.
When the state or federal government has a compelling interest in protecting an
individual's right but fails to protect that right, the Constitution should not leave
it unguarded. 44 Although various federal and state statutes remain at the
government's disposal to combat deceptive practices, the Equal Protection
Clause should intervene to prevent states from outlawing vote dilution ensuing
from fraud while under-enforcing vote dilution ensuing from voter deception. A
similar result should occur when analyzing voter deception.

This Article exposes the deficiencies in the current state of the law governing
voter intimidation and deceptive practices. It attempts to correct the legal
deficiencies within the confines of the constitutional framework. This Article
provides a legal framework for voter intimidation and deception as well as
solutions to addressing the quagmire of federal laws that unfortunately do not
sufficiently deter these activities. It also presents a careful analysis of the
conceptual and legal issues concerning deceptive practices. Part I provides
contemporaneous examples of voter deception and illustrates the need for
comprehensive and strategic legal definitions for deceptive practices. Part II
discusses the gaps in existing statutes, the lack of enforcement of those statutes,
and the government's current focus on voter fraud and using statutes against
communities that are traditionally victims of deception. Part III argues for a
Constitutional response under the Equal Protection Clause and recognizes First
Amendment and other Constitutional constraints. Part IV proposes a legislative
response that provides additional protections for individuals or groups victimized



40. U.S. Const, amend. XIV, �� 1. The Equal Protection Clause of the Fourteenth
Amendment provides: "No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws." Id.

41. 553 U.S. 181 (2008).

42. Id. at 1 84 (discussing the state' s ability to impose burdens on voters through stricter voter
identification standards and finding the state's justification for requiring voter ID, preventing voter
fraud, compelling).

43. See Burson v. Freeman, 504 U.S. 191, 210 (1992) (finding that the state could place
constraints on electioneering near polling places on Election Day).

44. See, e.g., Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired
Individuals, 38 McGeorge L. Rev. 917, 930 (2007) (discussing the balance between the right to
vote of cognitively impaired individuals and the existing constitutional and legal framework that
governs each citizen's right to vote; arguing that the state must begin to balance disabled voters'
interest in participation within the electoral system and the broader public interest in maintaining
the integrity of the political system).



2010] VOTER DECEPTION 353



by voter deception and offers a private right of action and improved criminal and
civil penalties to strengthen existing laws.

I. Defining Deception

Elections in this new millennium have witnessed a revival of voter
intimidation and deceptive practices across the country. 45 In every federal
election since the year 2000, suppressors have falsely instructed citizens under
the guise of governmental authority and in some instances using threats and
penalties to disseminate false information in predominately minority areas. 46 In
2004, the "Milwaukee Black Voters League," an organization that does not exist,
distributed a flyer warning people found guilty of any infraction, including traffic
tickets, to stay away from the polls or face possible imprisonment. 47 The flyer
read:

If you've already voted in any election this year, you can't vote in the
presidential election; If anybody in your family has ever been found
guilty of anything, you can't vote in the presidential election; If you
violate any of these laws, you can get ten years in prison and your
children will get taken away from you. 48

During the 2008 federal election, many states endured instances of intimidation
and deception targeting the minority community. 49 These examples illustrate the
traditional deceptive practices of disseminating false information in minority
communities. 50

The 2008 presidential election cycle brought about a contested election in



45. See supra notes 1-6 and accompanying text.

46. See Nat'l Network for Election Reform, supra note 1 9, at 2.

47. Id.

48. Id.

49. Election Protection 2008, supra note 12, at 1. Since 2004, the Election Protection
campaign, which is comprised of approximately eighty organizations including the Lawyers
Committee for Civil Rights Under Law, People for the American Way Foundation Latino Justice,
and the NAACP have chronicled deceptive practices and voter intimidation taking place across the
country. Id; see also Nat'l NETWORK FOR ELECTION REFORM, supra note 19, at 3 (describing a
2003 election in Philadelphia, where voters in African American areas were systematically
challenged by men carrying clipboards, driving a fleet of some 300 sedans with magnetic signs
designed to look like law enforcement insignia); Tim Shipman & Tom Leonard, Turnout Hits
Record as Fraud Claims Dog Polling Day, DAILY TELEGRAPH (LONDON), Nov. 5, 2008, at 2
(providing a broad overview of reported Election Day problems in the United States relevant to
intimidation, suppression, and deception).

50. See Tova Andrea Wang, Election 2004: A Report Card, Am. PROSPECT, Jan. 1, 2005,
http://www.reformelections.org/commentary.asp?opedid=824 (describing deceptive acts in Ohio
in 2004, where newly registered voters were falsely warned that if the NAACP, the John Kerry
Presidential campaign, America Coming Together, or a local congressional campaign registered
them to vote, that they were not eligible to vote).



354 INDIANA LAW REVIEW [Vol. 43:343



which citizens were bombarded with robo calls 51 and misleading flyers. 52 The
nature of these calls was similar to traditional deceptive flyers in that they
contained false information and were generally targeted at both minority and
Democratic voters, but involved less cost and more impact. 53

Suppressors also used electronic deception to intimidate and deceive voters.
In Texas, an Internet message instructed voters to cast a straight Democratic
ticket and separately punch Barack Obama's name, which would negate their
vote. 54 Accordingly, e-deception provides yet another concern. Indeed, emails
touting the ineligibility of voters because of foreclosures were prevalent and
caused at least one Attorney General to try to provide accurate information. 55
Although the Maryland Attorney General and others utilized the media in an
attempt to correct the misinformation, in most instances, these types of accounts
remain unparsed and unprosecuted.

A. A Deceptive Definition

Deception is defined as "the practice of deliberately making somebody
believe things that are not true; an act, trick, or device intended to deceive or
mislead somebody." 56 When the act of deception partners with the act of voting,



5 1 . See, e.g. , Jennifer Duck, Dems Claim GOP Launched 'Dirty ' Phone Campaign, ABC
NEWS, Nov. 6, 2006, ava//aZ)/e^http://abcnews.go.com/Politics/story?id=2633458&page=l ; Sam
Stein, Wave of McCain Robocalls Reported, Some May Violate State Law, HUFFINGTON POST, Oct.
1 6, 2008, http://www.huflmgtonpost.eom/2008/l 0/1 6/massive-rnc-robocall-may_n_l 35348.html.
Robo calls are a fairly new technological advance that allow an individual or group to make
multiple phone calls to promote a political message and can be used to disseminate misleading
information to masses in an effort to sway voters. See Charles Babington & Alec MacGillis, // 's
a Candidate Calling. Again: Republicans Deny Subterfuge as Phone Barrages Anger Voters,
Wash. Post, Nov. 7, 2006, at A8.

52. Susan Q. Stranahan, Broken Elections, Stolen Votes — Part V, CENTER FOR PUB.
Integrity, July 7, 2008, http://www.buyingofthepresident.org/index.php/stories/broken_
elections_stolen_votes_part_five/.

53. In Missouri in 2006, the Secretary of State reported that citizens had received robo calls
informing them that their polling places had changed when they had not and warning voters to bring
voter ID or they would not be permitted to vote. See Off. of the Secretary of State, Voters
First: An Examination of the 2006 Midterm Election in Missouri 17 (2007), http://www.
sos.mo.gov/elections/VotersFirst/2006/VoterFirst-Complete.pdf.

54. See Herbert, supra note 29 (arguing that voters are being suppressed through
communications on the Web this campaign season by capitalizing on new technologies and taking
advantage of an electorate that increasingly consumes political news online).

55. See Md. Off. of the Att'y Gen., Report on the Attorney General's Task Force
on Voting Irregularities (2008), http://www.oag.state.md.us/Reports/Voting%20Task%20Force
%20Repor4_28.pdf.

56. Encarta World English Dictionary (N. Am. Ed. 2009), available at http://encarta.
msn.com/encnet/features/dictionary/DictionaryResults. aspx?texttype=3&search=deception
(containing a basic definition for the act of deception).



2010] VOTER DECEPTION 355



the jurisprudence leaves open whether the practice of deliberately misleading a
voter serves as a legally actionable deed. 57 Consequently, voter deception is the
act of knowingly deceiving voters regarding the time, place, or manner of
conducting elections or the qualifications for or restrictions on voter eligibility.

In considering deceptive deeds, one must also consider their relation to fraud
and intimidation, particularly because those areas have far more protections than
deceptive practices and include some similarities. Voter deception is, in many
ways, similar to voter fraud and voter intimidation, yet some distinctions exist.
Scholars have sought to define vote fraud, 58 and statutes exist for determining
voter intimidation. 59 Few have attempted to conquer the amorphous and arguably
ambiguous definition of voter deception. 60

In an effort to encompass all illegal election activity, the Election Assistance
Commission (EAC) 61 created a definition of "election crimes." 62 The definition,
however, is overbroad and only tangentially includes deceptive acts. 63 In the
EAC's broad definition, only the terms "intentional acts . . . designed to cause .
. . eligible votes not to be cast or counted" tangentially address deceptive
practices. 64 Indeed, it speaks more to intimidation or fraud than deception. The



57. See infra Part II.A. 1 -2.

58. See, e.g., Ansolabehere & Persily, supra note 37, at 1758-59 (analyzing through
surveying the impact of voter fraud and its relation to participation in the political process and
finding that the use of photo identification requirements bears little correlation to the public's
opinion about the incidence of fraud); Flanders, supra note 37, at 95 (framing the debate as the
seriousness of voter fraud versus the deterrence of voters in passing laws to deter this activity such
as photo identification requirements at the polls).

59. See infra Part II.A. 1.

60. See e.g., Overton, supra note 37, at 636 (arguing the need for empirical data and less
anecdotes in imposing voter ID laws).

61 . U.S. Election Assistance Comm'n R., supra note 39.

62 . See Job Serebrov & Tova Wang, Voting Fraud and Voter Intimidation Report to the U. S.
Election Assistance Commission on Preliminary Research & Recommendations, 6 ELECTION L.J.
330, 332 (2007) (defining "election fraud" as "any intentional action, or intentional failure to act
when there is a duty to do so, that corrupts the election process in a manner that can impact on
election outcomes"); Tova Andrea Wang, A Rigged Report on U.S. Voting, Wash. Post, Aug. 30,
2007,atA21.

63. The EAC tasked Job Serebrow and Tova Wang to provide a report on the prevalence of
voter fraud and voter intimidation. See Serebrov & Wang, supra note 62, at 33 1 . The final report
was met with some criticism. See Wang, supra note 62. In the report, however, the EAC broadly
defines election crimes. See supra note 39 and accompanying text.

64. A 2007 EAC report defined election crimes, which would include voter fraud and voter
intimidation, but not voter deception as

any intentional action, or intentional failure to act when there is a duty to do so, that
corrupts the election process in a manner that can impact on election outcomes. This
includes interfering in the process by which persons register to vote; the way in which
ballots are obtained, marked, or tabulated, and the process by which election results are
canvassed and certified.



356 INDIANA LAW REVIEW [Vol. 43:343



EAC definition serves as a medley of actions that allow voter deception to remain
ignored as a serious offense to the democratic process.

In 2007, then-newly elected Senator Barack Obama and senior statesman
Senator Charles Schumer unsuccessfully attempted to fill this void. In the 1 1 0th
Congress, Senators Obama and Schumer introduced the Deceptive Practices and
Voter Intimidation Prevention Act of 2007, which would criminalize many of the
tactics of voter deception and increase the penalty from one to five years for
anyone convicted of voter intimidation. 65 The bill prohibits a person from
deceiving a voter regarding the time, place, or manner of the election. 66 Further,
it requires the Attorney General to provide "accurate" election information when
deception allegations are proven and to report to Congress on allegations of
deception after each federal election. 67 Because this bill speaks to voter
deception, it specifically reinforces the need for stricter penalties and greater
clarification. In some instances, however, it tends to fall short of its goal.

1. Deception as Fraud. — Generally, voter fraud involves "obtaining and
marking ballots, the counting and certification of election results, or the
registration of voters." 68 Traditional forms of voter fraud involve voting multiple
times under false names, vote buying, and election officials committing fraud
through counting spoiled ballots. 69 Intimidation and deceptive practices,
however, do not fall squarely within the definition of voter fraud. One scholar
suggests that courts should evaluate voter fraud in two separate categories:
"voter-initiated" and "voter-targeted." 70 Although voter-initiated acts refer
generally to voter fraud and voter-targeted to what is generally considered voter
suppression, the joining of these acts tends to negate the deceptive practices for



Serebrov & Wang, supra note 62, at 332. See U.S. ELECTION ASSISTANCE COMM'N R., supra note
39, at 14.

65. Deceptive Practices and Voter Intimidation Act of 2007, S. 453, 1 1 0th Cong. �� 3 (2007).

66. Id. The Act also designates the Civil Rights Division of the Justice Department as the
federal agency responsible for correcting misinformation that comes to its attention and to provide
Congress with a report of any deceptive practices allegation within ninety days of any election for
federal office, including primaries, and run-offs. S. 453, �� 4.

67. The Deceptive Practices and Voter Intimidation Prevention Act of 2007 has remained
dormant in the Senate. A House version of the bill, H.R. 1281, passed June 25, 2007 out of the
House. A 2005 version of the bill in the House would have provided a private right of action for
deceptive practices under 42 U.S.C. �� 1971(c) (2006) and provides criminal penalties. Deceptive
Practices and Voter Intimidation Prevention Act of 2005, H.R. 4463, 1 09th Cong. �� 2(a)(2) (2005);
see infra Part IV.A.

68. Craig C. Donsanto & Nancy L. Simmons, Federal Prosecution of Election
Offenses 3 (U.S. Dep't of Just., Crim. Division, Pub. Integrity Sect., 7th ed. 2008), available at
www.justice.gov/criminal/pin/docs/electbook-rvs0807.pdf.

69. Lorraine C. Minnite, The Politics of Voter Fraud 6 (2007), available at
http://www.bradblog.com/Docs/politicsofvoterfraudfinal.pdf.

70. See Benson, supra note 39, at 1 (arguing that courts should consider the initiators of the
fraud who commits the acts and the effects on our democracy).



2010] VOTER DECEPTION 357



the more politically feasible voter fraud. 71 The level of voter fraud has long been
debated and serves as an impetus for recent legislation meant to deter alleged
fraudulent activity. 72

The Public Integrity Section of the Department of Justice (PIN), which is
primarily responsible for pursuing vote fraud cases, defines "election fraud" as
"involving] a substantive irregularity relating to the voting act — such as bribery,
intimidation, or forgery — which has the potential to taint the election itself." 73
PIN acknowledges that some acts that may arguably constitute fraud may
nonetheless not be recognized as a federal election crime. 74 It specifically points
to instances of "distributing inaccurate campaign literature" as an example of
"reprehensible" actions that generally fall outside the scope of federal statutes. 75
Thus, the example of Prince George's County, discussed earlier, although
reprehensible and arguably involving deception, would not fall within a
prosecutable form of election fraud and, as such, would not be pursued or
prosecuted. 76

Both voter fraud and voter deception are types of electoral interference that
seek to affect electoral outcomes. Both fraud and deception involve untruths;
deception involves limiting the number of voters; and voter fraud attempts to
increase those numbers falsely. Scholars have debated the wisdom of election
laws passed to address voter fraud, 77 but the need for stronger and more potent
voter suppression and, in particular, voter deception laws is left wanting.
Consequently, voter fraud and voter deception enjoy different outcomes and
should require different legislative strategies, definitions, and penalties. 78



71. Id. State legislatures have focused much of their attention on combating voter fraud
through the implementation of various voter identification laws. Minnite, supra note 69, at 61.
The voter identification debate has been characterized as a strictly partisan fight. Id. at 3. States
that passed voter identification laws were Republican-controlled. Id. at 6. Most Democratic-
controlled governments rejected voter identification legislation that made it more difficult for
citizens to cast a ballot. Id; see id. at 5 (finding that "[t]he claim that voter fraud threatens the
integrity of American elections is itself a fraud").

72. Lori Minnite & David Callahan, Securing the Vote: An Analysis of Election
Fraud 13-17 (2003 ) (discussing the lack of relationship between election fraud and requiring photo
identification); cf. John Fund, Stealing Elections: How Voter Fraud Threatens Our
Democracy (2004) (discussing recent examples of electoral tampering through voter fraud).

73. See DONSANTO & SIMMONS, supra note 68, at 24.

74. See id. at 47.

75. Id.

76. See discussion supra Part LA.

77. See, e.g., Overton, supra note 37, at 681 (concluding that voting identification
requirements may prevent fraud but also prevent legitimate voters from casting a ballot).

78. A. David Pardo, Election Law Violations, 45 Am. Crim. L. Rev. 305, 308, 329 (2008)
(discussing election fraud statutes, voter intimidation, and campaign finance and provides
alternative theories of prosecution, such as the Travel Act, 18 U.S.C. �� 1952 (2006), used to
prosecute interstate travelers); see also Benson, supra note 39, at 1 (discussing how courts should
adjudicate "voter-initiated" and "voter-targeted" fraud differently).



358 INDIANA LAW REVIEW [Vol. 43:343



2. Deception as Intimidation. — Voter intimidation involves threats, force,
or interference in the balloting process in a manner that intimidates the voter
from participating in the election process. 79 Federal statutes define intimidation
as those actions that involve threats and interfere with a voter's right to exercise
the franchise. 80 Threats of prosecution and deportation for committing the act of
voting illustrate the types of intimidating acts that currently encompass voter
intimidation. 81

The main distinction between voter intimidation and voter deception is that
intimidation of voters carries with it a connotation of some type of threat, e.g.,
incarceration or deportation. 82 Although the two areas overlap (and may, in fact,
be considered synonymous in many cases), deception is more focused on
misinformation or purposely disseminating misinformation, 83 while intimidation
is characterized by more threatening actions. This distinction, however, could
allow a broad definition of voter suppression because the nature of the actions
seeks to dissuade voters from participating in the electoral process. The efforts
to thwart voter participation through deception and intimidation are similar and
fit more securely in an analysis of overall attempts at suppression rather than
fraud. Although voter intimidation and deception are similar and statutes exist
specifically for intimidation and fraud, no federal legislation directly addresses
deception.

B. Voter Suppression
Voter intimidation and deceptive practices fall generally within voter



79. Wendy Weiser & Margaret Chen, Voter Suppression Incidents 2008, BRENNAN Center
for Just., Nov. 3, 2008, http://www.brennancenter.org/content/resource/voter_suppression_
incidents (last visited Oct. 8, 2009). The Brennan Center compiled a list of Voter Intimidation and
Deceptive Practices that occurred across the country in the 2008 federal election, many included
actions from "officials" intimidating voters. Id. For example; in New Mexico a private investigator
responding to an allegation from Republican Party operatives questioned voter's eligibility to vote
in a June primary. Id. The Mexican American Legal Defense and Education Fund sued on behalf
of the investigated citizens who were deemed eligible voters. Id. Other federal and state statutes
that define voter intimidation are discussed infra Part II.B.

80. See 42 U.S.C. �� 1971(b) (2006).

81. See Nat'l Network for Election Reform, supra note 1 9, at 2.

82. See Donsanto & Simmons, supra note 68, at 53.

83. Press Release, Sen. Barack Obama, Obama Bill Would Make Election Fraud, Voter
Intimidation Illegal (June 7, 2007), available at http://sweetness-light.com/archive/legislation-you-
get-from-an-acom-organizer. The unsuccessful Obama bill, co-sponsored by New York Sen.
Charles Schumer, linked deceptive practices and intimidation, defining "deceptive practices" as
"involving] the dissemination of false information intended to prevent voters from casting their
ballots, intimidate the electorate, and undermine the integrity of the electoral process." Deceptive
Practices and Voter Intimidation Prevention Act of 2007, S. 453, 1 1 Oth Cong. �� 2 (2007) (emphasis
added).



2010] VOTER DECEPTION 359



suppression, 84 which seeks to decrease the number of eligible voters and,
generally, take the electoral power away from individuals or groups; it also often
uses deception or threats to accomplish this goal. PIN admits that no federal
statute currently exists that criminalizes voter suppression. 85

The nature of voter suppression and the ability to document examples of
voter deception reinforce the need to prohibit the act of diluting the votes of
eligible voters under the Equal Protection Clause. Although voter intimidation
and deception are similar and statutes exist specifically for intimidation and
fraud, no federal legislation directly addresses deception. 86 Although
documented occasions of voter deception exist, few instances exist in the voter
fraud context. In fact, the Court noted in Crawford v. Marion County Election
BoardF that Indiana had no history of in-person voter fraud. 88 Yet, it passed
legislation arguing that it was compelled to provide protections for its citizens
against actions that it perceived as a threat to the democratic process. 89 The
same, however, is true in the voter deception area and examples of deception are
plentiful yet receive less attention. 90

II. Deceptive Laws

The Fifteenth Amendment 91 of the U.S. Constitution prohibits the denial of
the right to vote on the basis of "race, color or previous condition of servitude."
Other amendments prohibit discrimination based on sex 92 and age. 93 A post-Civil



84. PIN defines voter suppression as follows:

Voter suppression schemes are designed to ensure the election of a favored candidate
by blocking or impeding voters believed to oppose that candidate from getting to the
polls to cast their ballots. Examples include providing false information to the
public — or a particular segment of the public — regarding the qualifications to vote, the
consequences of voting in connection with citizenship status, the dates or qualifications
for absentee voting, the date of an election, the hours for voting, or the correct voting
precinct. Another voter suppression scheme, attempted recently with partial success,
involved impeding access to voting by jamming the telephone lines of entities offering
rides to the polls in order to prevent voters from requesting needed transportation.
Donsanto & Simmons, supra note 68, at 61 .

85. Id.

86. See supra Part II.

87. 128 S. Ct. 1610(2008).

88. Id. at 1617-18.

89. Id. at 1619.

90. See infra Part II.B.

91. U.S. CONST, amend. XV, ���1, 2. The Fifteenth Amendment of the U.S. Constitution
states: "The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude. The
Congress shall have power to enforce this article by appropriate legislation." Id.

92. U.S. Const, amend. XIX, �� 1. The Nineteenth Amendment of the U.S. Constitution
states: "The right of citizens of the United States to vote shall not be denied or abridged by the



360 INDIANA LAW REVIEW [Vol. 43:343



War statute, 18 U.S. C. �� 241, sought to address efforts to deprive Blacks of their
Constitutional rights, including the right to vote. 94 Despite this early effort to
address intrusions in the right to vote, and later iterations that followed, 95 the
need to combat efforts to thwart participation through voter intimidation and
deception remains.

It was not until 1939 that Congress specifically sought to penalize
intimidating acts that could deny eligible citizens the right to vote with the
passage of the Hatch Act. In addition to addressing the appropriate level of
political activity for federal employees, the law also made it illegal to intimidate
voters in federal elections. 96 Prior to the passage of the VRA, prosecutors
utilized 42 U.S.C. �� 1971(b) to counter voter-intimidation. 97 In many instances,
prosecutors were thwarted by the statutes requirement proof of "purposeful



United States or by any State on account of sex." Id.

93. U.S. CONST, amend. XXVI. The Twenty-sixth Amendment of the U.S. Constitution
provides that persons who are eighteen or older are eligible to vote. Id.

94. See 18 U.S.C. �� 241 (2006). This statute provides in part:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person .
. . in the free exercise or enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having so exercised the same
. . . [t]hey shall be fined under this title or imprisoned not more than ten years, or both

This includes protections for the right to vote. See Wilkins v. United States, 376 F.2d 552, 554 (5th
Cir. 1967).

95. See infra Parts II.A-B,

96. See, e.g., S. REP. No. 1, 76th Cong., 1st Sess. 12, 25, 39 (1939); 84 CONG. Rec. 9604
(1939). The portion of the Hatch Act that addresses voter intimidation is codified at 18 U.S.C. ��
594 (2006) and states in part:

[S]uch other person to vote or to vote as he may choose, or of causing such other person
to vote for, or not to vote for, any candidate for the office of President, Vice President,
Presidential elector, Member of the Senate, Member of the House of Representatives .
. . at any election held solely or in part for the purpose of electing such candidate, shall
be fined under this title or imprisoned not more than one year, or both.
Id.

97. The case law indicates that several pre- VRA cases were successful. See, e.g., United
States v. Beaty, 288 F.2d 653, 655-56 (6th Cir. 1961) (finding relief against economic coercion,
involved eviction of black sharecroppers); United States v. Wood, 295 F.2d 772, 781 (5th Cir.
1961) (granting relief against state prosecution of a black engaged in voter-registration work);
United States v. Clark, 249 F. Supp. 720, 828 (S.D. Ala. 1965) (granting relief against baseless
arrests and unjustified prosecutions). Others may have been thwarted by the inability to prove
purposeful discrimination. See, e.g., United States v. Bd. of Educ. of Greene County, Miss., 332
F.2d 40, 46 (5th Cir. 1 964) (affirming a decision involving a school board's refusal to rehire a black
teacher who took part in voter registration activities); United States v. Edwards, 333 F.2d 575, 578-
79 (5th Cir. 1964) (affirming a trial court's decision involving a physical attack on blacks who
sought to register to vote).



20 1 0] VOTER DECEPTION 361



discrimination." 98 Congress's passage of the VRA," and in particular Section
1 1(b) of that legislation, made it clear that the government was not required to
prove that the acts were purposefully discriminatory. Since the passage of
Section 1 1(b), however, the federal government has rarely used this provision to
pursue voter intimidation and attempts to use it as a means to prevent and deter
voter intimidation have been largely unsuccessful.

A. Dormant Federal Statutes

In analyzing existing federal statutes and enforcement, neither clear
definition nor authority exists for prosecuting the act of voter deception. In some
instances, well-respected governmental authorities have said that the federal
government lacks the authority to pursue deceptive practices. 100 Ambiguities
remain in the federal law context regarding deceptive practices. 101 The justified
focus on the twentieth-century issue of voter intimidation to allow access, and the
twenty-first century focus on vote fraud in some instances to deny access,
necessitates congressional and state legislative attention.

Additionally, 42 U.S.C. �� 1 97 1 (b) and Section 1 1(b) of the VRA, as well as the



98. During the House Hearings on passage of the VRA, then- Attorney General Katzenbach
said: "There has been case after case of similar intimidation — beatings, arrests, lost jobs, lost credit,
and other forms of pressure against Negroes who attempt to take the revolutionary step of
registering to vote." Voting Rights: Hearings on H.R. 6400 Before the Subcomm. No. 5 of the H.
Comm. on the Judiciary, 89th Cong. 9 (1965) (statement of Att'y Gen. Nicholas Katzenbach).

Attorney General Katzenbach also said that

[p]erhaps the most serious inadequacy [of the existing statutes prohibiting voter
intimidation] results from the practice of district courts to require the Government to
carry a very onerous burden of proof of "purpose." Since many types of intimidation,
particularly economic intimidation, involve subtle forms of pressure, this treatment of
the purpose requirement has rendered the statute largely ineffective.
A/, at 11.

99. President Lyndon B. Johnson called the VRA of 1 965, "one of the most monumental laws
in the entire history of American freedom." David J. Garrow, Protest at Selma: Martin
Luther King, Jr., and the Voting Rights Act of 1 965, at 1 32 ( 1 978) (citing Public Papers of
the Presidents, Lyndon B. Johnson, 1 965, at 840-43); see also Voting Rights Act Amendments
of 1970, Pub. L. No. 91-285, 84 Stat. 314 (1970); Voting Rights Act Amendments of 1975, Pub.
L. No. 94-73, 89 Stat. 400 (1975); Voting Rights Act Amendments of 1982, Pub. L. No. 97-205,
96 Stat. 131(1 982); Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No.
109-246 (2006); see generally 'Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d
221 (D.D.C. 2008),prob.juris. noted, 129 S. Ct. 894 (mem.), rev 'd and remanded, 129 S. Ct. 2504
(2009).

1 00. See Craig Donsanto, Federal Prosecution of Election Offenses 749, 795 (7th ed.,
1689 PLI/Corp. 2008) (stating although some acts are "reprehensible" they are beyond the reach
of federal statutes, such as "distributing inaccurate campaign literature").

101 . For a discussion of election law statutes, see, for example, Pardo, supra note 78; David
C. Rothschild & Benjamin J. Wolinsky, Election Law Violations, 46 Am. Crim. L. Rev. 391 (2009).



362 INDIANA LAW REVIEW [Vol. 43:343



NVRA, statutes that the U.S. Department of Justice Civil Rights Division
enforces, do not contain criminal penalties. 102 A major shortcoming lies in the
lack of criminal penalties.

1. Federal Criminal Penalties and Enforcement. — The federal criminal
statute falls far short of enforcement and meaningful penalties for voter
intimidation and deception. PIN enforces criminal use of threats or violence to
coerce voters in voter registration, voting or uses voter registration applications
in a fraudulent manner. 103 However, PIN has not prosecuted persons for
misleading or false information under this statute. 104

PIN believes that a plausible vehicle for broad acts of voter suppression and
more specific acts of intimidation prosecutions is 18 U.S.C. �� 241, which
considers it a felony to "conspire to injure, oppress, threaten, or intimidate any
person in any State, Territory, or District in the free exercise or enjoyment of any
right or privilege secured to him the Constitution or laws of the United States." 105

In United States v. Tobin, 106 the federal government charged a Republican
Party official with jamming phone lines in an effort to affect the hotly contested
2002 U.S. Senate election in New Hampshire. 107 The court found that 18 U.S.C.
�� 241 was applicable and imprisoned the official for three months. 108 This
statute, however, has been rarely used in the voting context and only with varying



102. Section 1971(c) authorizes the Attorney General to bring civil actions for "preventive
relief against violations of �� 1971(b). 42 U.S.C. �� 1971(c) (2006). Section 11(b) of the VRA does
not include criminal penalties. Id. �� 1973i(b).

103. See 18 U.S.C. �� 241 (2006).

1 04. Most recently, PIN prosecuted a Republican operative in a voter suppression scam in New
Hampshire using 18 U.S.C. �� 241. United States v. Tobin, No. 04-CR-216-01-SM, 2005 WL
3199672 at *1, *3 (D.N.H. Nov. 30, 2005) (holding that a conspiracy to interfere with a person's
right to vote violates 18 U.S.C. �� 241).

1 05. 18 U.S.C. �� 241 . The Supreme Court has found that voting is a fundamental right. See
Wesberry v. Sanders, 376 U.S. 1 (1964) (holding that apportionment of congressional districts so
that single congressman represented from two to three times as many Fifth District voters as were
represented by each of congressmen from other Georgia districts grossly discriminated against
voters in Fifth District in violation of the constitutional requirement that representatives be chosen
by people of the several states); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) ("[T]he right of
suffrage is a fundamental matter in a free and democratic society. . . . any alleged infringement of
the right of citizens to vote must be carefully and meticulously scrutinized.").

1 06. 2005 WL 3 1 99672, at * 1 , *3 (holding that a conspiracy to interfere with a person's right
to vote violates �� 241).

1 07. Thomas B. Edsall, GOP Official Faces Sentence in Phone-Jamming, WASH. POST, May
17, 2006, at A10. One of the Republican Party's top priorities in 2002 was to retain the New
Hampshire Senate seat. Id. Tobin, the Republican National Committee regional political director,
was "[o]vercome by his desire for success in the election," he used his position to make the phone
jamming scheme successful instead of stopping it. Id.

108. Allen Raymond, How to Rig an Election: Confessions of a Republican Operative
236 (2008). The defendant, Allen Raymond chronicled his actions in a book. Id. at 1.



20 1 0] VOTER DECEPTION 363



degrees of success. 109 Nonetheless, PIN believes that voter suppression
infractions should be prosecuted and that 18 U.S.C. �� 241 is the proper
mechanism until Congress passes a statute that is more directly on point. 1 ,0 This
focus, however, continues to ignore the act of voter deception as a prosecutable
offense and threat to the democratic process.

Although a civil statute, the NVRA's provision, 42 U.S.C. �� 1973gg-10(l),
prohibits the fraudulent and intimidating acts surrounding the voter registration
process and includes imprisonment and monetary fines as punishment. 111 But it
does not include penalties for deceptive practices, such as anonymous leaflets
that indicate the wrong date for the election.

2. Federal Civil Penalties and Enforcement. — In the civil law context, two
federal statutes currently govern voter intimidation: 42 U.S.C. �� 1971(b) 112 and



1 09. See United States v. Classic, 313 U.S. 299, 309-10 (1941) (interpreting �� 20 to apply to
the deprivation of the constitutional rights of qualified voters to choose representatives in
Congress).

1 10. See Donsanto & Simmons, supra note 68, at 63 (arguing that "suppression schemes
[represent] an important law enforcement priority, that such schemes should be aggressively
investigated, and that, until Congress enacts a statute specifically criminalizing this type of conduct,
18 U.S.C. �� 241 is the appropriate prosecutive tool by which to charge provable offenses.").

111. 42 U.S.C. �� 1973gg- 10(1) provides:

A person, including an election official, who in any election for Federal office —

( 1 ) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate,
threaten, or coerce, any person for —

(A) registering to vote, or voting, or attempting to register or vote;

(B) urging or aiding any person to register to vote, to vote, or to attempt to register or
vote; or

(C) exercising any right under this subchapter; or

(2) knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the
residents of a State of a fair and impartially conducted election process, by —

(A) the procurement or submission of voter registration applications that are known by
the person to be materially false, fictitious, or fraudulent under the laws of the State in
which the election is held; or

(B) the procurement, casting, or tabulation of ballots that are known by the person to be
materially false, fictitious, or fraudulent under the laws of the State in which the election
is held, shall be fined in accordance with title 1 8 (which fines shall be paid into the
general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title
31), notwithstanding any other law), or imprisoned not more than 5 years, or both.

42 U.S.C. �� 1973gg- 10(a) (2006).

112. The bill that preceded these statutes and governed intimidation was the Hatch Act of
1939, which dealt with political activities of federal employees and also prohibited intimidation of
voters in federal elections. Donsanto & SIMMONS, supra note 68, at 57. The intimidation
provision was a response to irregularities in the 1938 election, including economic pressure on
participants in Works Progress Administration programs. Hatch Act of 1939: Information, at
http://www.answers.com/topic/hatch-act-of- 1939 (last visited Mar. 14,2010). 42 U.S.C. �� 1971(b)
(2006) reads as follows:



364 INDIANA LAW REVIEW [Vol. 43:343



Section 1 1(b) of the VRA. 113 These statutes give the government the ability to
deter voter intimidation. The statutes' language gives prosecutors the potential
to litigate against persons who interfere with the right to vote. But they have
remained underutilized and leaves the purpose of the statutes unfulfilled and
open to political interpretation.

In its present form, the VRA prohibits voter intimidation, but it does not
include criminal penalties for such acts. 1 14 Moreover, other issues, such as giving
false information or voting more than once, are criminalized in �� 1 973i(c)-(e) and
other violations under �� 1973. 115 Although �� 1971(b) prohibits interfering with
a constitutional right such as attempting to vote, it has been much more
successful at other times, particularly in the Civil Rights era. 116 Conversely,
Section 11(b) is rarely used and has remained highly unsuccessful. 117 The
Department of Justice has brought only four lawsuits under Section 1 1(b) in the



No person, whether acting under color of law or otherwise, shall intimidate, threaten,
coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of
interfering with the right of such other person to vote or to vote as he may choose, or
of causing such other person to vote for, or not to vote for, any candidate for the office
of President, Vice President, presidential elector, Member of the Senate, or Member of
the House of Representatives, Delegates or Commissioners from the Territories or
possessions, at any general, special, or primary election held solely or in part for the
purpose of selecting or electing any such candidate.

42U.S.C. �� 197 1(b) (2006). Section 197 1(c) authorizes the Attorney General to bring civil actions

for "preventive relief ' against violations of �� 1971(b).

113. Section 1 1(b) of the VRA reads as follows:

No person, whether acting under color of law or otherwise, shall intimidate, threaten,
or coerce, or attempt to intimidate, threaten, or coerce any other person for voting or
attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten,
or coerce any person for urging or aiding any person to vote or attempt to vote, or
intimidate ....
42U.S.C. �� 1973i.

114. Id.

115. See id.

116. Early suits under �� 1 97 1 (b) sought injunctive relief against persons who used economic
and physical threats against eligible voters. For example, in United States v. Original Knights of
the Ku Klux Klan, 250 F. Supp. 330, 349-50 (E.D. La. 1965), the three-judge district court panel
held that the defendants violated �� 1971(b). The defendants admitted that they had engaged in
economic coercion and other efforts to prevent blacks in Washington Parish from registering to
vote. Id. at 337. The court rejected the defendants' contentions that �� 1971(b) does not apply to
private individuals and that the statute is unconstitutional. Id. at 349, 355. See also United States
v. Chappell (sought and obtained injunctive relief against segregated voter lists); Bell v. Home
(M.D. Ga. 1965) (sought and obtained injunctive relief against acts of intimidation, including the
arrest of blacks who had refused to leave a "white" polling place).

1 1 7. See Paul Winke, Why the Preclearance and Bailout Provisions of the Voting Rights Act
Are Still a Constitutionally Proportional Remedy, 28 N.Y.U. REV. L. & Soc. CHANGE 69, 1 17 n.290
(2003) (noting that section 1 1(b) prohibits intimidation by individuals but not by jurisdictions).



2010] VOTER DECEPTION 365



history of the VRA. 118 All were brought for various violations that are
contemporaneously classified as voter suppression; most are pure voter
intimidation cases and only one could arguably classify as a voter deception

119

case.

The more contemporary Section 1 1(b) cases are informative in ascertaining
the Department's philosophy towards prosecuting under the statute, which the
courts have interpreted as a voter intimidation statute because of its prohibition
against threats. 120 The most recent cases involve the Department of Justice filing
complaints against racial minorities. 121 The choice of enforcement is revealing
about the impact on future enforcement of voter intimidation and deceptive
practices. For example, in United States v. Brown, the U.S. Department of
Justice, Civil Rights Division, Voting Section brought the first case pursuant to
Section 2 of the VRA 122 on behalf of white voters in Noxubee, Mississippi. 123



118. The first, United States v. Harvey, 250 F. Supp. 219, 222 (E.D. La. 1966), was filed in
1965 and was unsuccessful. Id. at 237. The Department alleged that, in violation of Section 1 1(b)
and Section 1 97 1 (b), the defendants terminated sharecropping and tenant-farming relationships
with blacks who had registered to vote, evicted such persons from rental homes, and discharged
them from salaried jobs. Id. at 222. Concluding that the intimidation statutes exceeded Congress'
power and that, in any event, the Department had failed to prove intimidation, the court granted
judgment for the defendants. Id. at 226, 237.

1 1 9. Id. at 22 1 (voter intimidation); United States v. N.C. Republican Party (voter deception);
United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007) (voter intimidation), aff'd, 56 1 F.3d
420 (5th Cir. 2009); Complaint, United States v. New Black Panther Party for Self-Defense, No.
09-0065 (E.D. Pa. Jan. 7, 2009), available at http://moritzlaw.osu.edu/electionlaw/litigation/
documents/BlackPanther-Complaint- 1 -7-09.pdf (voter intimidation).

120. See, e.g.. Brown, 494 F. Supp 440 (voter intimidation).

121. Id. (DOJ brought a Section 2 and Section 1 1(b) challenge against racial minorities for
alleged voter intimidation); Complaint, United States v. New Black Panther Party for Self-Defense,
No. 09-0065 (E.D. Pa. Jan. 7, 2009) (DOJ filed a voter intimidation challenge against members of
the New Black Panther Party).

122. The VRA contains two primary enforcement provisions. Section 2 prohibits
discrimination in voting based on race, color, language, or minority status. Section 5 requires
specified jurisdictions to submit all of their voting administration changes to the Attorney General
or U.S. District Court for the District of Columbia prior to implementation. Congress included a
national prohibition against discrimination in voting in Section 2 of the Act. The provision imposes
a prohibition against racial discrimination in any voting standard, practice or procedure, including
redistricting plans. Under Section 2, "[p]laintiffs must demonstrate that ... the devices result in
unequal access to the electoral process." Thornburg v. Gingles, 478 U.S. 30, 46 (1986).

1 23. Brown, 494 F. Supp. 2d 422. The District Court judge noted that this was certainly "an
unconventional, if not unprecedented use of the Voting Rights Act." Id. at 443. The court opined:

[Defendants proclaim it "preposterous" that the Justice Department — a Justice
Department they maintain has for decades been wholly unresponsive to complaints of
voting discrimination by black citizens — would have the temerity to come into this court
claiming that blacks in Noxubee County, who were oppressed by the white
establishment for 135 years and who finally gained the reins of power a mere 12 years



366 INDIANA LAW REVIEW [Vol. 43:343



Under a cloud of criticism, the Department brought a voter intimidation
lawsuit against African American defendants. 124 This was an interesting choice,
because in most acts of voter intimidation and deception, African Americans and
members of other minority communities are the victims, not the perpetrators. 125
In Brown, 126 the court found that the defendants had violated Section 2 of the
VRA. 127 Regarding the Section 1 1 (b) claim, the district court found that Brown's
actions during a 2003 Democratic primary had "a racial element," but did not
constitute a threat that affected the right to vote. 128

George W. Bush's administration brought a second case against African
Americans shortly after the 2008 elections, using its Section 1 1(b) authority that
involved poll watchers in Philadelphia, Pennsylvania. 129 In United States v. New
Black Panther Party, MS, 130 the Department alleged that members of the New
Black Panther Party brandished weapons and made racial slurs at both black and
white voters outside a polling place. 131 Among criticism, 132 the newly elected



ago, have discriminated against whites in that county.
Id. at 480. The defendants further argued that white citizens in Noxubee County could not
demonstrate the critical requirements under the VRA, including a history of official discrimination,
under-representation in elections, discrimination in "education, employment or health," and an
unresponsive government. Id. at 483. The defendants further argued that Section 2 was "being
launched as a missile without an enemy." Id. at 480.

124. See Adam Nossiter, U.S. Says Blacks in Mississippi Suppress White Vote, N.Y. TIMES,
Oct. 1 1, 2006, at AIS, available at http://www.nytimes.eom/2006/10/l 1 /us/politics/ 1 lvoting.html;
Peter Whoriskey, Alleged Voting Rights Violation with Twist Goes to Trial, WASH. POST, Jan. 16,
2007, at 2, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/01/15/
AR2007011501196.html.

125. Logan, supra note 1 5 . The overwhelming accounts of voter intimidation and particularly
voter deception target minority communities. See supra notes 15-19.

126. 561 F.3d420.

127. Mat 434-35.

128. United States v. Brown, 494 F. Supp. 2d 440, 477 n.56 (S.D. Miss. 2007), aff'd, 56 1 F.3d
4420 (5th Cir. 2009).

129. Press Release, Dep't of Just., Justice Department Seeks Injunction Against New Black
Panther Party (Jan. 7, 2009), available at http://www.justice.gov/opa/pr/2009/January/09-crt-
014.html.

1 30. United States v. New Black Panther Party for Self-Defense, No. 09-0065 (E.D. Pa. Jan.
7, 2009), available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/BlkPants-Judgmt-
5-18-09.pdf. In its complaint the Department alleged that the defendants violated Section 1 1(b)
through "armed and uniformed personnel at the entrance to the polling location," "[t]he loud and
open use of racial slurs," and essentially creating an "intimidating and threatening presence" outside
the polls. Complaint at 4-5, United States v. New Black Panther Party for Self-Defense, No. 09-
0065 (E.D. Pa. Jan. 7, 2009), available at http://moritzlaw.osu.edu/electionlaw/litigation/
documents/BlackP anther-Complaint- 1 -7-09.pdf.

131. The members of the New Black Panther Party outside the polling place described
themselves as "security" and "concerned citizens." Youtube.com, "Security" Patrols Stationed at
Polling Places in Philly, http://www.youtube.com/watch?v=neGbKHyGuHU&feature=player_



20 1 0] VOTER DECEPTION 367



administration decided not to pursue the case and dropped the charges against the
defendants. 133 It is not clear that the New Black Panther Party members actually
intimidated voters, particularly as the police allowed one member of the New
Black Panther Party to remain at the polls. 134 Nonetheless, the presence of a
weapon outside of a polling site could threaten or intimidate a voter from
entering. The government's dismissal of this case either demonstrated its
inability to prove the necessary elements of the statute (i.e., threats, intimidation,
coercion) or a political decision not to prosecute. Regardless, the government's
decision to pursue and abandon this case demonstrates the powerlessness of the
statute in its present form.

The federal government has brought only one case under the civil
enforcement statute that arguably involved intimidation and deception. The hotly
contested 1 990 U.S. Senate race involving incumbent Jesse Helms and challenger
Harvey Gantt 135 was especially contentious and at times extremely race-based. 136
It is commonly held that Helms regained the lead in a faltering campaign when
he aired an advertisement that played to the fears and prejudices of North
Carolina citizens. 137



embedded. The police removed one member of the party who held a nightstick, but allowed a
second member to remain. Stu Bykofsky, Sometimes, Intimidation Is in Eye of Beholder, PHIL.
Daily News, June 8, 2009, Local, at 6.

132. Jerry Seper, Career Lawyers Overruled on Voting Case, WASH. TIMES, May 29, 2009,
at A 1 , available at http://www.washingtontimes.com/news/2009/may/29/career-lawyers-overruled-
on-voting-case/ (noting that career lawyers, who sought to pursue sanctions against the members
of the New Black Panther Party, were overruled by political appointees). See Editorial, Protecting
Black Panthers; The Obama Administration Ignores Voter Intimidation, WASH. TIMES, May 29,
2009, at A20 (arguing that the members' conduct was in clear violation of the VRA because the Act
prohibits "any 'attempt to intimidate, threaten or coerce,' any voter or those aiding voters" and
criticizing the Department of Justice for dropping such a "blatant intimidation" case).

133. Seper, supra note 132.

1 34. See Bykofsky, supra note 131.

135. Harvey Gantt was a civil rights pioneer. He was the first African American admitted to
Clemson University in 1 963, and he graduated with honors from Clemson and received a master's
degree in city planning from the Massachusetts Institute of Technology. Harvey Gantt,
Newsobserver.com, http://projects.newsobserver.com/under_the_dome/profiles/harvey_gantt.
He served as mayor of Charlotte, North Carolina from 1983 to 1987 and on the city council from
1 974 to 1 983. Id. He ran unsuccessfully for U.S. Senate against Jesse Helms in 1 990 and in 1 996.
Id.

136. Id.

137. In the "White Hands" advertisement, the commercial begins with a white male — showing
only his hands — opening a letter and then throwing it away. The announcer then says,

You needed that job, and you were the best qualified. But they had to give it to a
minority because of a racial quota. Is that really fair? Harvey Gantt says it is. Gantt
supports Ted Kennedy's racial quota law that makes the color of your skin more
important than your qualifications. You'll vote on this issue next Tuesday. For racial
quotas, Harvey Gantt. Against racial quotas, Jesse Helms.



368 INDIANA LAW REVIEW [Vol. 43:343



In a continuation of these tactics and an example of classic voter deception,
predominately African American communities received 125,000 postcards
containing misleading information on voter eligibility and threatening them with
vote fraud prosecutions. 138 After the election, a Department of Justice lawsuit
resulted in a consent decree prohibiting the state's Republican Party "from
targeting voters based on their 'racial minority status,' and required it to obtain
prior court approval for its anti-fraud activities." 139 The Department settled the
case based on its authority to protect against race discrimination under Section
2 of the VRA, but arguably not under its authority contained within the civil
penalties. 140

The federal government's lack of enforcement of voter intimidation and its
most recent application to traditional beneficiaries of the VRA are quite
instructive. Department of Justice officials questioned whether Section 11(b)
could apply to deceptive practices, such as the Senator Cardin example, 141 but the
officials used the statute against black citizens, in the face of overwhelming
evidence that vote intimidation is typically committed against minorities, not by
them. Granted, the federal Section 11(b) cases did not involve anonymous
actions or publications; however, the need to enjoin practices promulgated
against minority communities that intimidate and deceive voters is evident. The
choice and lack of enforcement of Section 1 1(b) and other statutes to address



YouTube.com, Jesse Helms's "Hands" ad, http://www.youtube.coin/watch?v=KIyewCdXMzk.
After airing the "White Hands" political advertisement, Senator Helms moved up considerably in
the polls and ultimately won the election. See ABC News Services, Sen, Jesse Helms Dead at 86:
Polarizing North Carolina Lawmaker Known as 'Senator No ', July 4, 2008, http://abcnews.go.
com/US/story?id=5309543&page=l .

138. Press Release, N.C. Democratic Party, North Carolina Democrats Announce
Unprecedented Election Protection Program (Aug. 3, 2007), available at http://www.ncdp.org/
north_carolina_democrats_election_protection; see U.S. Election Assistance Comm'n, supra
note 39, at 13-14 (defining election crimes to include dissemination of false information regarding
eligibility to vote).

1 39. Justin Levitt & Andrew Allison, Reported Instances of Voter Caging 3 (2007),
available at http://www.brennancenter.Org/pager-i/d/download_file_49609.pdf. Such direct mail
marketing campaigns are also known as "vote caging" schemes, utilized to indicate potential vote
challenges. Vote caging is

a three-stage process designed to identify persons in another party or faction whose
names are on a voter registration list, but whose legal qualification to vote is dubious,
and then to challenge their qualification either before or on Election Day. Ostensibly,
caging is an attempt to prevent voter fraud. In practice, it may have the effect of
disenfranchising voters who are legitimately registered.

Chandler Davidson et al., Vote Caging as a Republican Ballot Security Technique, 34 Wm.

Mitchell L. Rev. 533, 537-38 (2008) (discussing voter deception through vote caging methods).

140. Although this case could serve as a classic voter intimidation or deception case, the case
was brought and settled under a purposeful discrimination theory under Section 2 of the VRA.

141. See Introduction, supra. Samples of such flyers are available at National Campaign
for Fair Elections, supra note 1 .



20 1 0] VOTER DECEPTION 369



other voter suppression tactics evidence the need for more protections. With
only a few Section 1 1(b) cases in the history of the statute and a lack of a federal
statute that unequivocally addresses deceptive practices, the impotence of the
civil statutes and the indecision of the criminal statutes in their current
configuration are clearly revealed. In fact, the government has yet to bring a
successful intimidation case under the civil statute. 142

B. State Voter Intimidation and Deceptive Practices Statutes

States have instituted an array of statutes seeking to address voter
intimidation, fraud, and deception. Thirty-nine states have statutes that
specifically bar some form of voter intimidation, deceptive practices, or both.
Most laws can be divided into three categories, based on the type of false
information that is outlawed. The first category of statutes outlaw the
dissemination of false information regarding election administration, such as
registration and polling site activity. 143 The second category outlaws false
information on candidates or issues, such as making a false statement about a
candidate or a proposition, 144 while the third category of statutes address both
election administration and candidate or other substantive issues. 145 Of the thirty-
nine states that have laws addressing some form of voter intimidation and
deceptive practices, only nine states consider a violation of their voter
intimidation statutes as a felony; 146 and only fifteen find the offender guilty of a



142. See United States v. Brown, 494 F. Supp. 2d 440, 477 n.56 (S.D. Miss. 2007), aff'd, 561
F.3d 420 (5th Cir. 2009) (noting the government's lack of pursuit and triumph and that "the
Government has given little attention to this claim, and stat[ing] that it has found no case in which
plaintiffs have prevailed under this section").

143. See, e.g., Va. Code Ann. �� 24.2-1005. 1 (West 2007) (considering it a misdemeanor to
knowingly communicate false election information to a registered voter about the time, date or place
of voting and also prohibiting false information regarding a voter's polling site or registration
status).

144. See, e.g., Wis. Stat. Ann. �� 12.05 (West 2004) (prohibiting "false representation^]
pertaining to a candidate or referendum which [are] intended ... to affect voting at an election").

145. For example, Louisiana precludes the dissemination of any "oral, visual, or written
material containing ... a false statement about a candidate ... or about a proposition." La. Rev.
Stat. Ann. �� 18:1463 (2004) as well as information regarding voting or registration. Id. ���
18:1 46 1, 18:1 46 1.1. The parsing of various types of false information to election administration,
candidates, and the like helps to ensure that these laws are not overbroad and consistent with the
state's compelling interest. See supra Part II.B (discussing constitutional considerations).

146. Perhaps the most stringent state is South Carolina, which imposes a ten-year sentence of
imprisonment and possibly a fine for a violation of its voter intimidation statute. The South
Carolina statute reads:

A person who, at any of the elections, general, special, or primary, in any city, town,
ward, or polling precinct, threatens, mistreats, or abuses a voter with a view to control
or intimidate him in the free exercise of his right of suffrage, is guilty of a felony and,
upon conviction, must be fined in the discretion of the court or imprisoned not more



370 INDIANA LAW REVIEW [Vol. 43:343



misdemeanor. 147 Of those states that include penalties for intimidation, only five
states include "fraud" in their statutes penalizing intimidation. 148 Only four states
also penalize voter deception. 149

On the issue of e-deception, a few states include laws that are broadly
construed such that they may apply to the traditional means of deception and
online voting deception. 150 The litany of statutes and their attributes leads at best
to piecemeal enforcement. 151 In most cases, the intimidation or fraud cases are



than ten years, or both.
S.C. Code Ann. �� 7-25-80 (1976).

147. The majority of states that impose penalties for voter intimidation only find offenders
guilty of misdemeanors; most impose a class A misdemeanor. See, e.g., Ala. Code �� 17-17-33
(1975) (class A misdemeanor for intimidation, threats, etc.); Ark. Code Ann. �� 7-1-103 (West
2010) (class A misdemeanor for intimidation, threats, etc.); Tenn. Code Ann. �� 2-19-1 15 (West
2009) (class A misdemeanor for "force or threats"); Va. Code Ann. �� 24.2-607 (2006) (class 1
misdemeanor for any person who "hinder[s], intimidate[s] orinterfere[s] with any qualified voter").
Delaware allows a civil action against the offender and allow the petitioner to recover $500. Del.
Code Ann. tit. 15, �� 5162 (West 2006).

148. See Cal. Elec. Code �� 1 8573 (West 2003) (stating that a person is "guilty of a felony"
if he or she "defrauds any voter at any election by deceiving and causing him or her to vote for a
different person for any office than he or she intended or desired to vote for"); Idaho Code Ann.
�� 18-2305 (West 1972) (determining that "[a] person who . . . defrauds any elector ... is guilty of
a misdemeanor"); Md. Code Ann. Elec. Law.�� 16-201 (2009) (maintaining that "[a] person may
not willfully and knowingly [i]nfluence or attempt to influence a voter's decision through . . .
fraud"); S.C. Code �� 7-25- 1 90 (2009) (pronouncing that "[a] person . . . who by force, intimidation,
deception, [or] fraud . . . controls the vote of any voter ... is guilty of a felony"); W. VA. CODE
Ann. �� 3-9-10 (West 2002) (declaring that "[a]ny person who shall, by . . . fraud . . . prevent or
attempt to prevent any . . . voter . . . from freely exercising his right of suffrage at any election" is
guilty of a misdemeanor).

149. Florida, Illinois, Kansas, and Minnesota penalize voter deception. See Fla. Stat. Ann.
�� 104.0615 (West 2008) (including in the purview of the statute false information to induce or
compel an individual to vote or refrain from voting); 10 III. Comp. Stat. Ann. 5/29-4 (West 2003)
(penalizing "[a]ny person who, by . . . deception . . . knowingly prevents" another from voting or
registering to vote); KAN. Stat. Ann. �� 25-2415 (1974) (including the mailing or publishing of
false infonnation as proscribed voter intimidation); Minn. Stat. Ann. �� 204C.035 (2006)
(prohibiting a person from "knowingly deceiv[ing] another person" about election information).

150. See, e.g., Ala. Code �� 17- 17-38 (1975) (prohibiting "[a]ny person. . .by any. . .corrupt
means, [from] attempting] to influence any elector in giving his or her vote, deter[ring] the elector
from giving the same, or disturbing] or hindering] the elector in the free exercise of the right of
suffrage"). For a comprehensive analysis of current laws and their applicability to online voter
deception, see Common Cause, supra note 23.

151. See, e.g., Kamins v. Bd. of Elections for D.C., 324 A.2d 187 (D.C. 1987) (finding that
certain write-in voters should have been counted and remanded for other proceedings); Pabey v.
Pastrick, 816 N.E.2d 1138, 1151 (Ind. 2004) (granting relief to plaintiff for proving "that a
deliberate series of actions occurred"); Rogers v. Holder, 636 So. 2d 645 (Miss. 1994) (upholding
election results despite known departures from absentee voting provisions).



20 1 0] VOTER DECEPTION 371



brought, while the deceptive practices are allowed to continue without penalty
or investigation.

Although most state voter intimidation statutes contain language similar to
the federal statutes prohibiting intimidation, e.g., "[i]t shall be unlawful ... to
intimidate, threaten, or coerce," 152 the best-structured statutes that would
encompass deception do not limit the illegal actions to those containing threats.
Those statutes highlight the intentional falsehood to manipulate voters regarding
an election administration matter, such as the date of the election. Nonetheless,
state statutes that specifically address deceptive practices can serve as a model
for other legislation. A Kansas statute that became effective in 2001, serves as
a model for states seeking to encompass the distinct instances of voter
suppression, including deception. Statutes that include criminal or harsh civil
penalties can have a deterrent effect and lessen the impact of these practices.

Whether on the state or federal level, the need for a more precise
criminalization of deceptive practices is warranted. Most statutes addressing
some form of "election crimes" ignore the impact and harm that voter deception
causes. Although some statutes exist for either voter fraud or intimidation, few
comprehensive laws address documented and resurgent deceptive practices.
Thus, acts of voter dilution can best be addressed through vigorous enforcement
and more inclusive interpretation of existing statutes.

III. Ending Deception

The history of election regulation in America "reveals a persistent battle
against two evils: voter intimidation and election fraud." 153 Voter intimidation
and deceptive practices have in large part not been regulated or litigated in the
United States. 154 Any revisions or new regulations must adequately include
constitutional considerations that secure and protect the right to vote. Although
the Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution provides the authority to combat voter deception, Congress should
also strengthen existing statutes to address deceptive practices.

A. Equal Protection Clause

Governments have a significant interest in protecting their citizens from
deceptive practices. The U.S. Supreme Court has found compelling interests in



1 52. See, e.g. , Ala. Code �� 1 7- 1 7-33 ( 1 975) (effective January 1 , 2007) (barring intimidation
and threats for the election of "any candidate for state or local office or any other proposition at any
election"). The statute also qualifies intimidation as a class A misdemeanor. Id.

153. Burson v. Freeman, 504 U.S. 191, 206-10 (1992) (holding that a Tennessee statute
prohibiting the solicitation of votes and the display or distribution of campaign materials within 1 00
feet of the entrance to any polling place was narrowly tailored to serve a compelling state interest
in preventing voter intimidation and election fraud, as required by the First Amendment).

1 54. See supra Part II. A.



372 INDIANA LAW REVIEW [Vol. 43:343



laws that sought to prevent voter intimidation 155 and voter fraud. 156 The right to
vote and participate in the political process free from intimidation and fraud is
strikingly similar to issues surrounding deceptive practices. Voting is different
from other rights in a democratic society, in that the right to vote and to do so
without interference is a linchpin of our democracy. 157 Accordingly, efforts to
distort, mislead, connive, and deceive are worthy of federal constitutional
protections. The Equal Protection Clause of the Fourteenth Amendment, as well
as various existing federal and state statutes, assist the government in its pursuit
of free access to the franchise.

In Crawford v. Marion County, 158 the U.S. Supreme Court found that Indiana
had two legitimate reasons for adopting a voter identification law that limited the
number of acceptable forms of identification to government-issued photo
identifications. 159 The Court found that Indiana's desire to deter and detect voter
fraud and its interest in promoting voter confidence were sufficient to find the
voter identification statute constitutional. 160 These ideals are paramount in the
need to provide governmental protection against deceptive practices.
Governmental entities possess a need to deter and detect voter deception and the
lack of enforcement of deceptive practices adversely affects voter confidence,
particularly in incidents such as the Franklin County, Ohio, flyer that appeared
to have the stamp of a legitimate governmental office. 161 These kinds of acts tend
to cause voters to question the integrity of the electoral process. Regarding
public confidence, the Crawford Court found that public confidence
"encourage[d] citizen participation in the democratic process." 162

B. First Amendment Concerns
Although an Equal Protection argument exists for persistent vigilance



155. SeeBurson, 504 U.S. at 206.

156. See Crawford v.Marion County Election Bd., 128S.Ct. 1610, 1623 (2008) (holding that
purported state interests for an Indiana statute requiring government-issued photo identification to
vote were sufficient to justify the limitation imposed on voters).

157. SeeYickWov. Hopkins, 118U.S. 356, 370 (1886) (declaring that "the political franchise
of voting is . . . regarded as a fundamental political right, because [it is] preservative of all rights").

158. 128 S. Ct. 1610(2008).

159. Id. at 1616-17.

160. Crawford, 128 S. Ct. at 1617, 1624. Each of Indiana's asserted interests is
unquestionably relevant to its interest in protecting the integrity and reliability of the electoral
process. See id. at 1617 (noting that the opponents of the law did not "question the legitimacy of
the interests the State has identified").

161. See supra Part I .A.

1 62. Crawford, 1 28 S. Ct. at 1 620 (holding that state's interests identified as justifications for
Indiana statute requiring government-issued photo identification to vote were sufficient to justify
any limitation imposed on voters). Indiana's interest in protecting public confidence in elections,
although closely related to its interest in preventing voter fraud, has independent significance
because such confidence encourages citizen participation in the democratic process.



2010] VOTER DECEPTION 373



regarding voter deception, other constitutional constraints must also be
considered. The Supreme Court has held that "[t]he freedom of speech and of
the press, which are secured by the First Amendment against abridgment by the
United States, are among the fundamental personal rights and liberties which are
secured to all persons by the Fourteenth Amendment against abridgment by a
state." 163

In considering voter intimidation and deceptive practices, the fundamental
right to vote and political speech are firmly juxtaposed. This juxtaposition
requires balancing the right to vote with free speech and must be considered
when addressing the dearth of all-inclusive voter suppression legislation. In
constructing and strengthening state and federal legislation, one must not only
consider the rights and freedoms of the affected citizenry, but also the rights of
the deceiver.

1. First Amendment and Political Speech. — The First Amendment of the
U.S. Constitution protects the right to speak freely. 164 This right to speak freely,
however, should not include the right to speak falsely with intent to impair
another's rights. A major purpose of the First Amendment is to protect "the free
discussion of governmental affairs." 165 The Supreme Court has also noted, "For
speech concerning public affairs is more than self-expression; it is the essence
of self-government." 166 Freedom of expression is at the root of our participatory
democracy. 167 The First Amendment serves the greater purpose of promoting a
democratic government and serves the people's interest in having the information
they need to enable self-government. 168 Historically, the First Amendment has



163. Thornhili v. Alabama, 310 U.S. 88, 95, 101-02 (1940) (citations omitted) (noting that
"[t]he freedom of speech and of the press guaranteed by the Constitution embraces at the least the
liberty to discuss publicly and truthfully all matters of public concern without previous restraint or
fear of subsequent punishment").

164. U.S. Const, amend. I (providing "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances"). The Fourteenth Amendment to the U.S. Constitution
makes the First Amendment applicable to the states. See N. Y. Times Co. v. Sullivan, 376 U.S. 254,
277(1964).

165. Mills v. Alabama, 384 U.S. 214, 218, 220 (1966) (holding that the Alabama Corrupt
Practices Act as providing criminal penalties for publication of newspaper editorial on election day
urging people to vote a certain way on specific issues violated the constitutional protection of free
speech and press).

166. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (holding that the statute is
unconstitutional as punishing false statements against public officials 1) if made with ill will
without regard to whether they were made with knowledge of their falsity or in reckless disregard
of whether they are true or false or 2) if not made in reasonable belief of their truth).

167. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640-41 (1994) (holding that people
should decide for themselves "the ideas and beliefs deserving of expression, consideration, and
adherence" and noting that "[o]ur political system and cultural life rest upon this ideal").

1 68. Carl E. Schneider, Free Speech and Corporate Freedom: A Comment on First National



374 INDIANA LAW REVIEW [Vol. 43:343



"preserve[d] an uninhibited marketplace of ideas in which truth will ultimately
prevail." 169 The First Amendment protections are paramount on issues involving
political debate. 170

For these reasons, the Supreme Court has continued to protect freedom of
political speech 171 and upholds statutes that affect this fundamental right only if
such restrictions "are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication." 172

The Supreme Court defines core speech protected under the First
Amendment as "both the expression of a desire for political change and a
discussion of the merits of the proposed change." 173 In limiting political speech,
the legislative body "must ... be prepared ... to articulate and support its
argument with a reasoned and substantial basis demonstrating the link between
the regulation and the asserted governmental interest." 174

The Supreme Court has found various expressions to be protected political
speech, inter alia, the right to peaceably assemble, 175 the right to criticize



Bank of Boston v. Bellotti, 59 S. Cal. L. Rev. 1227, 1238, 1267, 1269 (1986) (arguing that in
Bellotti, "the Court confirmed its discovery that commercial speech is not unprotected by the [F] irst
[A]mendment and announced a novel doctrine that corporate speech is not unprotected by the
[F]irst [A]mendment").

169. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390, 400-01 (1969) (holding that the FCC's
order requiring that a person who is attacked on the air receive the opportunity to rebut was
authorized by Congress and enhanced freedom of speech under the First Amendment rather than
infringing this right).

1 70. Monitor Patriot Co. v. Roy, 40 1 U.S. 265, 272 ( 1 97 1 ) (finding that the First Amendment
"has its fullest and most urgent application precisely to the conduct of campaigns for political
office").

171. This protection applies to written materials and verbal communications. See Lamont v.
Postmaster Gen., 381 U.S. 30 1 , 302, 305 ( 1 965) (finding a statute unconstitutional that requires the
post office department to detain and destroy unsealed mail from foreign countries that is determined
to be communist political propaganda unless addressee returns a reply card indicating his desire to
receive such piece of mail).

172. United States v. Grace, 461 U.S. 171, 177, 183 (1983) (quoting Perry Educ. Ass'n v.
Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983)) (holding that statute denying "'display' of
any flag, banner, or device designed or adapted to bring public notice to a party, organization, or
movement" in or on the grounds of the Supreme Court building was unconstitutional because it
could not be justified as a reasonable place provision).

173. Meyer v. Grant, 486 U.S. 414, 421-22, 428 (1988) (holding that a prohibition against
paying circulators violated the First Amendment).

174. Mitchell v. Comm'n on Adult Entm't Establishments of Del., 10 F.3d 123, 132 (3d Cir.
1993) (citation omitted).

175. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980) (indicating that
"[p]eople assemble in public places not only to speak or to take action, but also to listen, observe,
and learn; indeed, they may 'assemble] for any lawful purpose'") (quoting Hague v. CIO, 307 U.S.
496,519(1939)).



2010] VOTER DECEPTION 375



government officials, 176 campaign finance, 177 signage, 178 circulating petitions for
signatures 179 with limited regard for truth, 180 and speech regarding the American
flag. 181 Not all speech is protected, including some political speech, e.g., false
commercial speech, 182 electioneering within a certain distance of an entrance to
a polling place on Election Day, 183 and destroying secret service certificates. 184
The Supreme Court has also noted that "[regulations which permit the
Government to discriminate on the basis of the content of the message cannot be
tolerated under the First Amendment." 185 A statute is suspect under content-



176. Bond v.Floyd, 385 U.S. 116, 132, 136-37 (1966) (right to oppose national foreign policy
and other governmental actions or criticize government officials).

177. Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440
(2001 ) (concluding that "[s]pending for political ends and contributing to political candidates both
fall within the First Amendment's protection of speech and political association"); see also Buckley
v. Valeo, 424 U.S. 1, 44 (1976) (holding that provisions limiting individual contributions to
campaigns were constitutional despite First Amendment objections).

178. Sambo's of Ohio, Inc. v. City Council of Toledo, 466 F. Supp. 177, 179 (1979) (noting
that communication by signs and posters is considered to be "a pure matter of speech").

179. Meyer v. Grant, 486 U.S. 414, 421 (1988) ("The circulation of an initiative petition of
necessity involves both the expression of a desire for political change and a discussion of the merits
of the proposed change.").

180. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) ("Authoritative interpretations of
the First Amendment guarantees have consistently refused to recognize an exception for any test
of truth- whether administered by judges, juries, or administrative officials-and especially one that
puts the burden of proving truth on the speaker.").

181. The Court has upheld decisions recognizing the communicative nature of conduct relating
to flags, including attaching a peace sign to the flag, refusing to salute the flag, and displaying a red
flag. See, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing Spence v. Washington, 418 U.S.
405, 409-10 (1974)) (upholding attaching peace flag to sign); W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 632, 636 (1943) (finding that refusing to salute the flag is constitutionally
protected); Strombergv. California, 283 U.S. 359, 368-70 (1931) (finding that displaying a red flag
is constitutionally protected).

182. United States v. Bell, 414 F.3d 474, 479-80 (2005) ("The threshold inquiry is whether
the commercial speech involves unlawful activity or is misleading.")

1 83 . Burson v. Freeman, 504 U.S. 1 9 1 , 206, 211(1 992). In Burson, the Court recognized that
the exercise of free speech rights conflicts with the fundamental right to cast a ballot in an election
free from intimidation and fraud. Id. at 2 1 1 . Given the conflict between these two rights, the Court
held that "requiring solicitors to stand 100 feet from the entrances to polling places does not
constitute an unconstitutional compromise." Id.

184. United States v. O'Brien, 391 U.S. 367, 375 (1968). The Court held that "[a] law
prohibiting destruction of Selective Service certificates no more abridges free speech on its face
than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting
the destruction of books and records." Id.

185. Regan v. Time, Inc., 468 U.S. 641, 648-49, 659 (1984) (holding that the purpose
requirement contained in a statute that regulated publication or production of illustrations of federal
currency was unconstitutional).



376 INDIANA LAW REVIEW [Vol. 43:343



based scrutiny if it "threatens to suppress the expression of particular ideas or
viewpoints." 186 But a statute is suspect under content-neutral scrutiny when it is
"intended to serve purposes unrelated to the content of the regulated speech,
despite their incidental effects on some speakers but not others." 187

A statute similar to the one used in Kansas serves as an example of content-
neutral nondiscriminatory regulation on political speech. Indeed, the Kansas
statute provides a complete description of voter deception, including electronic
deception. This statute makes it a crime to intimidate, threaten, coerce, or
attempt to intimidate "for the purpose of interfering with the right ... to vote"
and specifically outlaws deceptive practices by criminalizing "mailing,
publishing, broadcasting, telephoning, or transmitting by any means false
information." 188 It is sufficiently broad, but not unduly burdensome or vague.
It specifically outlaws certain practices that are generally deemed voter
suppression, and it also specifically identifies actions that constitute voter
deception. The statute is limited in scope and addresses the state's need to
protect its citizens from voter deception.

2. Political Speech and Anonymity. — The anonymous nature of voter
deception makes it difficult to prosecute. Moreover, the advent of electronic
deception exacerbates this difficulty. 189 The Constitution protects the ability to
remain anonymous 190 but does not protect against some false speech, 191 while
protecting others. 192 For example, it can protect a candidate's ability to stretch
the truth, but no such protection exists for intentionally distributing false political



1 86. Leathers v. Medlock, 499 U.S. 439, 443, 447 (1991) (holding that Arkansas's extension
of its generally applicable sales tax to cable television services alone, or to cable and satellite
services, while exempting print media, does not violate First Amendment).

1 87. Simon & Schuster, Inc. v. Members ofN.Y. State Crime Victims Bd., 502 U.S. 105, 121-
22 n.* (1991).

188. Kan. Stat. Ann. �� 25-2415 (2000). Kansas defines voter intimidation as threats,
coercion or inter alia, publishing false information, which is probably the most closely targeted
statute that addresses voter deception. See id.

1 89. See generally Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in
a Democracy, 44 WAKE FOREST L. Rev. 497 (2009) (discussing the difficulty in pursuing hate
speech conducted via the Internet).

190. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).

191. United States v. Bell, 414 F.3d 474, 480 (2005) ("The threshold inquiry is whether the
commercial speech involves unlawful activity or is misleading.").

192. The Court will protect a candidate's promise to the electorate. See Brown v. Hartlage,
456 U.S. 45, 53, 55 (1982), which holds:

The candidate, no less than any other person, has a First Amendment right to engage in
the discussion of public issues and vigorously and tirelessly to advocate his own
election and the election of other candidates. Indeed, it is of particular importance that
candidates have the unfettered opportunity to make their views known so that the
electorate may intelligently evaluate the candidates' personal qualities and their
positions on vital public issues before choosing among them on election day.
Id. at 53 (quoting Buckley v. Valeo, 424 U.S. 1, 52-53 (1976)).



2010] VOTER DECEPTION 377



information.

Although the Supreme Court has prescribed protections to allow for political
privacy in publishing material for public consumption and in developing
legislation to counter deceptive practices, legislators must consider the nature of
the actions that regularly involve the distribution of anonymous political
literature. The Supreme Court has held, "[u]nder our Constitution, anonymous
pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition
of advocacy and of dissent. Anonymity is a shield from the tyranny of the
majority." 193

Mclntyre v. Ohio Elections Commission demonstrates how the dissemination
of knowingly false information differs from expressing one's political opinion. 194
The Court noted the importance of anonymous political literature 195 and the
state's authority to limit the right to free speech to protect against false or
misleading information and fraud. 196 The Court determined that the proper
analysis involved the application of "'exacting scrutiny' and [would] . . . uphold
the restriction only if it is narrowly tailored to serve an overriding state
interest." 197

Laws requiring identification of an author on political literature were
primarily developed to protect citizens and enable them to assess the
information's validity and integrity. 198 But preventative measures must not come
at the expense of eligible voters and should not involve efforts to outwit voters.
The Supreme Court has found that voter intimidation severely burdens on the
right to vote and efforts to prevent intimidation must involve a compelling state
interest. 199



193. Mclntyre, 514 U.S. at 357.

1 94. The Supreme Court reviewed Ohio's blanket prohibition against distributing anonymous
campaign literature. The Court considered whether the promotion was constitutional as applied to
the plaintiff's distribution of unsigned flyers opposing a school tax. Id. at 337-38, 340.

195. The Court noted, '"Anonymous pamphlets, leaflets, brochures and even books have
played an important role in the progress of mankind.'" Id. at 341 (quoting Talley v. California, 362
U.S. 60,64(1960)).

1 96. See id. at 348; see also Rachel J. Grabow, Note, Mclntyre v. Ohio Elections Commission:
Protecting the Freedom of Speech or Damaging the Electoral Process?, 46 Cath. U. L. Rev. 565,
570 (1997) (detailing the First Amendment case law that addresses anonymous speech and assesses
the right to distribute anonymous literature under the Supreme Court's First Amendment rulings);
Note, Gutter Politics and the First Amendment, 6 Val. U.L. Rev. 185, 198 (1972); Erika King,
Comment, Anonymous Campaign Literature and the First Amendment, 21 N.C. CENT. L.J. 144
(1995).

197. Mclntyre, 514 U.S. at 347.

1 98. See Grabow, supra note 1 96, at 583-85 (indicating that identification statutes were often
held valid because of the state's interests "in facilitating the flow of information to the public and
maintaining the civility and integrity of the electoral process").

199. See Burson v. Freeman, 504 U.S. 191, 206 (1992). In Burson, the Court addressed
whether Tennessee's statute prohibiting the distribution of campaign paraphernalia or soliciting
votes within one hundred feet of the polling place violated the First and Fourteenth Amendments.



378 INDIANA LAW REVIEW [Vol. 43:343



Voter deception often arises from false information printed anonymously
with no indication of the true author or distributor. 200 The deceptive information
also may be printed with seemingly official seal from a governmental agency. 201
The documents could credibly be considered "anonymous leaflets," 202 which the
Supreme Court has decided are afforded some constitutional protections.

The state needs to lessen the tensions between voter intimidation, voter
fraud, and other measures that undermine voter confidence, like voter
deception. 203 Additionally, the Constitution places even broader limits on
deceptive practices. The state has a compelling interest in ensuring that
information regarding the time, place, and manner of elections and voter
eligibility are accurately communicated. Protecting the accuracy of these
statements to preserve the integrity of the franchise and ensure access to voting
is a compelling state interest. Although political speech is strongly encouraged
in this democratic society, the Supreme Court has carved out a restriction on that
speech where the state is attempting to protect against harmful false information.
Clearly, no right exists for distributing false information that addresses the time,
place, and manner of elections, but just as clearly, no penalties exist.

3. Contrasting Campaign Finance as Speech. — The anonymous nature of
voter intimidation and deceptive acts and the protections provided against those
acts lie in stark contrast to campaign finance laws, where a contributor's identity
is required under federal statute. 204 For example, a primary challenge in
enforcing existing voter intimidation and deceptive practices laws is the
difficulty in identifying the culprit. 205 In many instances, political and Election
Day pamphlets are required to include some identifying information. 206 Courts
have found that the requirement to include identifying information within the
province of the First Amendment is compelling, as was the state's interest in
addressing voter fraud and promoting the ability to investigate false claims. 207



Id. The Court found that the legislation passed constitutional muster. Id. at 21 1 .

200. See Howard Libit & Tim Craig, Politicking Heats Up as Election Day Nears, Balt. Sun,
Nov. 4, 2002, at 1 A; Eric Siegel, Amid Stir, Voters Stream to Polls, Balt. Sun, Nov, 6, 2002, at
27A. A flyer was distributed in Pennsylvania falsely indicating that Republicans would vote on
November 2 and Democrats would vote on November 3 to cut down on lines. National
Campaign for Fair Elections, supra note 1, at 1 .

20 1 . See National Campaign for Fair Elections, supra note 1 .

202. Mclntyre, 514 U.S. at 350.

203 . The Court has also found that states have a compelling interest in preventing voter fraud
and intimidation. See Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1617, 1624
(2008).

204. See, e.g. , 2 U.S.C. �� 43 1 (2006). Federal campaign finance laws regulate the money spent
by political actors to influence federal campaigns.

205. See supra Part III.B.2.

206. Some states require that the sponsor of the political literature be identified. See
McConnell v. Fed. Election Comm'n, 540 U.S. 93, 126 (2003), overruled by Citizens United v.
Fed. Election Comm'n, 130 S. Ct. 876 (2010).

207. See Seymour v. Elections Enforcement Comm'n, 762 A.2d 880, 885 (Conn. 2000).



20 1 0] VOTER DECEPTION 379



Much has been written about First Amendment rights and campaign
finance. 208 In the landmark case Buckley v. Valeo, 209 the Supreme Court
addressed whether restrictions on campaign contributions and expenditures, inter
alia, violated free speech. 210 The Court ruled that the restrictions on expenditure
limits

necessarily reduce[d] the quantity of expression by restricting the

number of issues discussed It is clear that a primary effect of these

expenditure limitations is to restrict the quantity of campaign speech by
individuals, groups, and candidates. The restrictions . . . limit political
expression "at the core of our electoral process and of First Amendment
freedoms." 211

Consequently, the lack of attention to the perennial occurrence in the
minority community and the lack of protection rise in sharp contrast to the well-
documented and legislated campaign finance rules barring anonymous political
literature. Indeed, any communications, published media or electronic media,
endorsing or criticizing a candidate must meet strict restrictions, including
acknowledging the source responsible for the information. 212

The First Amendment does not require identification in most political
speech. 213 The false, misleading political speech involved in voter deception
does not fall within this constitutional protection. Governments have a
compelling interest in preventing voter deception and can construct laws that are
narrowly tailored to meet those goals. The presence of deceptive practices and
intimidation seeks to quiet the voices of voters. Statutes must protect the ability
to challenge and correct voter suppression activities. 214 Legislation addressing



208. See, e.g., Yasmin Dawood, Democracy, Power, and the Supreme Court: Campaign
Finance Reform in a Comparative Context, 4 Int'l J. CONST. L. 269 (2006); Candice J. Nelson,
Problems in the Laboratories, 2 ELECT. L.J. 403 (2003) (reviewing MONEY, POLITICS AND
Campaign Finance Reform Lawinthe States (David Schultz ed., 2002)); Christopher J. Ayers,
Comment, Perry v. Bartlett; A Preliminary Test for Campaign Finance Reform, 79 N.C. L. REV.
1788(2001).

209. 424 U.S. 1(1976).

2 1 0. The case centered on interpretations of the Federal Election Campaign Act, and the Court
found that provisions limiting individual contributions to campaigns were constitutional despite
First Amendment objections. Id. at 35.

211. Id. at 19, 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)).

212. I.R.C. �� 501(c)(4)(A) ("Civic leagues or organizations not organized for profit but
operated exclusively for the promotion of social welfare, or local associations of employees, the
membership of which is limited to the employees of a designated person or persons in a particular
municipality, and the net earnings of which are devoted exclusively to charitable, educational, or
recreational purposes.").

213. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 354, 357 (1995).

214. Voter intimidation undermines not only an individual's ability to participate in the
electoral process but also affects group right to access the ballot. Voting is in large part a group
right. In traditional electoral schemes, such as one person, one vote cases, courts determine the



380 INDIANA LAW REVIEW [Vol. 43:343



voter deception falls squarely within constitutional parameters for restrictions on
political speech. The First Amendment does not protect one's ability to lie or
obstruct the democratic process. States must narrowly tailor their laws to address
the distribution of misleading fraudulent information and protect citizens' right
to speak freely.

C. Election Clause Powers

Governments have the power to legislate and restrict political speech.
Although laws exist, the patchwork of applicable language and lack of penalties
require strengthening and, in some instances, creating laws to address these
actions. Despite the government's relative inaction or questionable actions in
enforcing voter intimidation statutes, Congress is keenly stationed to provide
protections against the knowing propagation of false election materials and has
the constitutional authority to do so. 215 Notwithstanding the states' authority to
develop election administration laws governing the time, place, and manner of
elections, Congress maintains authority to make or alter the states' regulations
for the election of federal offices. 216 Recent cases under the Elections Clause
reinforce Congress's broad authority to regulate all aspects of the federal
officials election. 217

Congress's ability to use its Elections Clause power to "protect voters" from
false information in federal elections is clear. 218 As the Supreme Court held in
Bur son v. Freeman™ the states have "a compelling interest in protecting voters
from confusion and undue influence" and in safeguarding "the integrity of its
election process." 220 Consequently, Congress has the authority to act under either



right as related to a particular group. See, e.g., Samuel Issacharoff & Pamela S. Karlan, Standing
and Misunderstanding in Voting Rights Law, 1 1 1 HARV. L. REV. 2276, 2282 n.30 (1998) (arguing
that one person, one vote cases "should be viewed as cases about group political power . . . rather
than purely about individual rights").

215. Congress has the power to regulate elections under the Elections Clause of the U.S.
Constitution. U.S. Const, art. I, �� 4, cl. 1 (specifying that "[t]he Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,
except as to the Places of chusing [sic] Senators").

216. Congress can regulate the elections of Representatives and Senators. See, e.g., United
States v. Gradwell, 243 U.S. 476, 482 (1917); Ex parte Siebold, 100 U.S. 371, 383-84 (1879);
United States v. Manning, 215 F. Supp. 272, 286-87 (W.D. La. 1963); Commonwealth ex rel.
Dummit v. O'Connell, 181 S.W.2d 691, 693-94 (Ky. Ct. App. 1944).

217. Cook v. Gralike, 531 U.S. 510, 523-24 (2001) (quoting Smiley v. Holm, 285 U.S. 355,
366 (1932)) (finding that the Elections Clause "encompasses matters like 'notices, registration,
supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of
votes, duties of inspectors and canvassers, and making and publication of election returns'").

218. SeeAss'nofCmty. Org. for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997).

219. 504 U.S. 191(1992).

220. Id. at 199 (quoting Eu v. S.F. County Democratic Cent. Coram., 489 U.S. 214, 228-29,



2010] VOTER DECEPTION 381



its Elections Clause or other constitutional powers to protect its citizens from
voter deception.

IV. A Legislative Response

The Supreme Court stated that "[n]o right is more precious in a free country
than that of having a voice in the election of those who make the laws under
which, as good citizens, we must live. Other rights, even the most basic, are
illusory if the right to vote is undermined." 221 Likewise, voter suppression affects
groups— racial, ethnic or language minorities — and the freedom to participate
without restraint in the democratic process. Groups' ability to vote is thwarted
when deceptive practices and other suppressive measures are allowed to continue
without penalty. Congress can use its constitutional authority to address the
current inequities in the lack of enforcement regarding voter deception.

The Supreme Court has held, "the government may regulate the time, place,
and manner of the expressive activity, so long as such restrictions are content
neutral, are narrowly tailored to serve a significant governmental interest, and
leave open ample alternatives for communication." 222 The nature of voter
deception, i.e., anonymity, targeting racial and language minorities, and
intentionally distributing false information in an attempt to deter targeted voters
from the polls, all contribute to the need for better statutory construction and
enforcement. The "right to vote freely for the candidate of one's choice is of the
essence of a democratic society." 223 Connivery, falsehoods, and misleading
voters thwart and negate those freedoms.

The present voter intimidation and deceptive practices statutes are
dramatically underperforming. Policy reasons for addressing the weaknesses of
the federal statutes — such as allowing unfettered access to the electoral process,
providing accurate information to voters, inspiring voter confidence, and
ultimately promoting fundamental democratic ideals — also continue to exist.
Although recognizing its authority to do so under the Fourteenth Amendment and
other applicable constitutional amendments, Congress must either strengthen
existing statutes or adopt new legislation that covers the breadth of new
millennium attempts to intimidate and deceive voters.

The lack of clarity and enforcement illustrates the need for legislation that
clearly defines deceptive practices and develops mechanisms to ensure that such
acts are investigated and that legislation contains appropriate penalties. The most
important principles to consider are whether the person or party intentionally
distributed false information regarding the time, place, and manner of an election
or falsely described voter eligibility. A thorough statute should also contain
extraordinary penalties if the distribution was knowingly disseminated through
a political party affiliation, campaign, or candidate. In this instance, conspiracy



231 (1989)).

221. Wesberry v. Sanders, 376 U.S. 1,17 (1964).

222. Burson, 504 U.S. at 197 (citation omitted).

223. Id. at 199 (citation omitted).



382 INDIANA LAW REVIEW [Vol. 43:343



principles should apply. Moreover, any voter suppression statute should contain
both a private right of action and civil and criminal penalties. In addition, if the
government opts to impose separate laws for voter deception, where the
misinformation included threats of incarceration or deportation, prosecutors
should also charge the perpetrators under applicable voter intimidation statutes. 224
A more focused voter deception statute need not include a requirement of
racial or purposeful discrimination. It should, however, include accelerated
penalties for evidence that the illegal practice targeted a particular racial, ethnic,
or language group. It is much more difficult to prove that an act of violence was
precipitated with thoughts of racial animus or hatred than proving that an
individual knowingly disseminate false information related to the voting process.
If a purposeful component is required, most perpetrators would argue that the
distribution was based on political affiliation instead of racial identity. 225 The
mere act of purposefully distributing false information should satisfy any statute.
The government should implement a tiered system to ensure that penalties will
deter deceptive practices.

A. A Proactive Approach

Any attempt at fashioning anti-voter deception legislation must include a
proactive approach to addressing and correcting the misinformation. The
government's approach must contain both proactive and reactive components to
ensure that citizens' ability to participate in the political process is not
diminished. Although it has not traditionally served in the capacity as educator,
in the deceptive practices context, governmental agencies must correct
misinformation in a timely manner in order to limit its impact on the affected
community.

Currently, no statute or administrative regulation requires the government to
provide corrective information. Such a requirement would constitute a proactive
approach to governing and election administration. In comparison to regulation
and protection in areas such as food and product safety, the government allows
voter deception to linger unanswered. The federal government transmits
information on food safety and product liability to curb the harm to the general
public, 226 and the same should occur for the fundamental act of voting. When



224. The federal government could utilize 42 U.S.C. 1 97 1 (b) (2006) or 1 8 U.S.C. 594 (2006).
See supra notes 97-97, 1 02 and accompanying text. States can utilize their broadly written statutes
that contain an intent component as well as the presence of threats in the absence of specific
legislation. See supra Part II.

225. This type of response has been raised in redistricting cases. See e.g. , Georgia v. Ashcroft,
539 U.S. 46 1 , 469-70 (2003) (involving state legislators attempting to reapportion partisan districts
and increase minority voting strength).

226. See generally U.S. Consumer Product Safety Comm., Recalls and Product Safety News,
http://www.cpsc.gov/cpscpub/prerel/prerel.html (last visited Oct. 10, 2009). If the federal
government can employ a process for notifying citizens of problems with food, toys and other
consumer products, it can develop a similar notification process for voter suppression and



2010] VOTER DECEPTION 383



voter suppression occurs, the federal or state government, or both, should have
a central office that receives such information at the state and federal levels and
provides corrected information to the public, especially the affected community.
Some states have already seen it as their responsibility to correct misinformation
about the time, place, and manner of elections. 227 The federal government should
use websites, toll-free numbers, press releases, and other means to address
deceptive voter practices. Additionally, federal agencies have been slow to
respond to false voter information. The government should utilize state agencies
and local media to develop public service announcements that warn of the
distribution of false election information in the locale and provide the correct
information to insure that the democratic process is not contaminated.

Moreover, the federal government has the components necessary to engage
in a regular voter education program through the use of existing laws. For
example, the NVRA 228 requires designated agencies, 229 such as the Department
of Motor Vehicles, social services agencies, libraries, and others, to ask clients
if they would like to register to vote. 230 But registering is merely the first
important step in realizing one's electoral potential. The federal government
must take the next step and require those agencies designated under the NVRA
to provide basic voter education information through signage and state-generated
brochures. 231 States should also require designated agencies to provide clients



correcting and exposing misinformation.

227. See Donna Marie Owens, Election Officials Vigilant Over Voter Intimidation,
Suppression, Oct. 27, 2008, http://www.publicbroadcasting.net/wesm/news.newsmain/article/
0/0/1398250/WESM.LocalRegional.News/Election.Officals.Vigilant.Over.Voter.Intimidation.S
uppression (Maryland Attorney General Doug Gansler announced that citizens in predominately
African- American neighborhoods had received flyers that said, "If you owe back child support or
you owe parking tickets or you're an immigrant, you may be arrested, if you come to vote on
Election Day."); see also Md. Att'y Gen. Off., Report on the Attorney General's Task
Force on Voting Irregularities (2008), http ://www.oag. state.md.us/Reports/VotingTaskForce
Repor4_28.pdf.

228. 42 U.S.C. �� 1973gg-l (2006); see also supra note 8.

229. Id. �� 1973gg-5 (requiring that "[e]ach state shall designate agencies" where voters can
register to vote and allowing the state to include "public libraries, public schools, offices of city and
county clerks (including marriage license bureaus), fishing and hunting license bureaus, government
revenue offices, unemployment compensation offices, and offices not described in paragraph (2)(B)
that provide services to persons with disabilities" to be places where people can register to vote).

230. See supra note 7. The NVRA has met much criticism as an under-utilized statute. Critics
have also argued that the Department of Justice — the statute's primary enforcer — has in past
administrations left many portions of the Act unenforced and thus has left thousands of citizens
unregistered. See, e.g., Steve Carbo et al., Ten Years Later: A Promise Unfulfilled; The National
Voter Registration Act in Public Assistance Agencies, 1995-2005, DEMOS, July 2005 (Nonprofit
advocacy groups Demos, ACORN, and Project Vote found that most public assistance agencies did
not incorporate voter registration into their services as the NVRA requires.).

231. The proposed legislation proposed in this Article would also require state election
agencies to supply NVRA-designated agencies with various information regarding the time, place



384 INDIANA LAW REVIEW [Vol. 43:343



with information from the state's election official regarding primary and general
election dates, as well as where to find additional information about the proper
polling place.

Much misinformation centers on citizens receiving information containing
the wrong date for an election. Each NVRA-designated agency and other
election-related agencies could advertise primary and general election day
information. They could also provide citizens with clear information about the
methods of voting, i.e., absentee, early voting, election day procedures, and
provisional ballots, which directly prevent and address deceptive practices as
well as promote public participation and confidence. Accordingly, the
government should encourage and inform its citizens about election day
occurrences and dispel any myths prior to the election relating to eligibility, time,
place, and manner requirements for casting a ballot. Once the government
receives a credible report regarding the distribution of false information, it must
act expeditiously to correct that information.

B. Private Right of Action

Any legislation that addresses deceptive acts must include a private right of
action. Wronged individuals or groups should have the ability to pursue legal
action in order to deter future occurrences. In most other contexts, such as
product liability or food safety, the consumer is allowed to pursue legal action
against a manufacturer or producer. 232 The federal government has created the
Consumer Protection Agency, which is responsible for protecting consumers
from, inter alia, false advertising, and faulty products. In the voting context,
citizens currently do not have an opportunity to litigate wrongs perpetrated
against them for deceptive acts.

With this private right of action, the statute should also allow plaintiffs to
recover costs and attorney fees. A person who is dissuaded from voting via this
misinformation for fear that she is ineligible or believes the document originated
from a governmental agency has been defrauded of an opportunity to exercise the



and manner of voting. For example, Section 203 of the VRA requires covered jurisdictions to
provide all election-related materials in languages covered under Section 203 . 42 U.S.C. �� 1 973aa-
la(b) 2006). States must provide identical information in both English and the covered language,
e.g., Spanish or Hmong. Id. Here, as opposed to providing that information only at the voter
registrar or other election-related office, the information would also disseminate to social services
agencies. As with Section 203, the state governments should also provide a toll-free hotline to
report deceptive acts. Once the state receives and verifies the information and finds it credible, it
must begin to broadcast corrected information. Additionally, any signage or brochures must
include websites including appropriate contact information where citizens can report deceptive acts
and provide copies of deceptive documents.

232. See Ind. Code �� 34-20-2-1 (2008); Mich. Comp. Laws Ann. �� 600.2947 (West 2009);
Ohio Rev. Code Ann. �� 2305.10 (West 2009); see also In re Bridgestone/Firestone, Inc., 288 F.3d
1012 (7th Cir. 2002); In re ConAgra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689 (N.D. Ga.
2008); Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826 (Minn. 1988).



20 1 0] VOTER DECEPTION 385



fundamental right to participate in the democratic process and should have the
ability to pursue legal actions against the responsible individuals.

C. Criminal and Civil Penalties

Disseminating information to a protected racial group with the intent to
suppress votes is an overt act of discrimination, and governments should penalize
those who disseminate this information with criminal and civil penalties. 233
Various federal statutes empower the government to seek modest penalties
against persons who intimidate voters. 234 Advocates realized the weakness of



233. Jordan T. Stringer, Comment, Criminalizing Voter Suppression: The Necessity of
Restoring Legitimacy in Federal Elections and Reversing Disillusionment in Minority
Communities, 57 EMORY L J. 101 1, 1042, 1047-48 (2008) (offering the following suggestions to
deter voter suppression: 1) "the use of phone harassment legislation should continue as an
innovative prosecutorial" technique, 2) "prosecutors should extend" the technique to "robo-calls,"
3) "Congress should amend mailfraud legislation" to include mailings that "defrauds someone of
his or her right to vote," 4) "Congress should [pass] the legislation [proposed by] Senators Schumer
and Obama," and 5) Congress "should resolve the conflicting perspectives of voter access and voter
security in the name of electoral integrity and constitutional fidelity."); see also Pardo, supra note
78, at 329-30 (discussing election fraud and arguing for use of the Travel Act, 18 U.S.C. �� 1952
(2006), which is used to prosecute offenders whose conspiracies require interstate travel, and the
Mail Fraud Statute, 1 8 U.S.C. �� 1 341 (2006), which is used when mail fraud is involved in election
fraud or intimidation schemes); Rothschild & Wolinsky, supra note 101.

234. See, e.g. , 42 U.S.C. �� 1 97 1 (c) (2006) (empowering the Attorney General to bring a civil
action to prevent or enjoin the activity and noting that "the Attorney General may institute for the
United States, or in the name of the United States, a civil action or other proper proceeding for
preventive relief, including an application for a permanent or temporary injunction, restraining
order, or other order"); supra Part I.A.2. 42 U.S.C. �� 1 973j(a) allows the Attorney General to bring
a civil action and seek up to $5,000 and impose five-year prison sentence.

Id. �� 1973j(d) provides,

Whenever any person has engaged or there are reasonable grounds to believe that any
person is about to engage in any act or practice prohibited by section 1973, 1973a,
1973b, 1973c, 1973e, 1973h, 19731, or subsection (b) of this section, the Attorney
General may institute for the United States, or in the name of the United States, an
action for preventive relief, including an application for a temporary or permanent
injunction, restraining order, or other order ....

Id.

18 U.S.C. �� 594 (2006) imposes a fine or one year of prison upon persons who intimidate,

threaten or coerce persons from exercising the right to vote. Section 594 provides:

Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce,
any other person for the purpose of interfering with the right of such other person to
vote or to vote as he may choose . . . shall be fined under this title or imprisoned not
more than one year, or both.

See Rothschild & Wolinsky, supra note 101, at 393-427 (providing an exhaustive list of applicable

civil, criminal and administrative laws that the federal government has available to combat voter



386 INDIANA LAW REVIEW [Vol. 43:343



Section 1 1(b) and argued for strengthening the VRA, and specifically suggested
that Congress strengthen its voter intimidation laws. 235 They expressly suggested
that persons who engaged in harassment or intimidation of minority voters should
face criminal sanctions and that Congress should provide a private right of action
for individuals who have suffered from this illegal intimidation. They also
suggested that the injured individuals should be eligible to receive injunctive
relief, statutory damages, and attorneys' fees. 236 After reauthorization of the
VRA in 2007, Congress did not address this issue. 237 Conversely, the NVRA
includes a private right of action, but most litigation pertaining to this statute has
included other voter access-related issues, such as the state's unwillingness or
inability to comply with its voter registration requirements. 238 None of the
litigation involved voter intimidation or voter deception.

The Obama/Schumer bill would have increased monetary penalties from
$5,000 to $ 1 00,000 and would have increased possible prison time from one year
to five years. 239 These types of increases would make the statute meaningful and
would hopefully exhibit the seriousness associated with the actions.

Additionally, if the government seeks to criminalize deception, it should also
strengthen civil penalties. The existing penalties could serve as a deterrent for
individuals. When groups engage in deceptive practices, e.g., the Republican
Party in the Jesse Helms example, 240 statutes must impose stricter penalties. If
prosecutors can link deceptive actions to a political campaign, such as the 2006
example of Prince George's County, Maryland, 241 it should consider escalating
penalties, especially if it can demonstrate that the candidate or members of the
political party knew that the information contained intentionally false
information.

Conclusion

The establishment of the democratic form of government and the framers'
view of the importance of having the people voice their content or discontent
through the ballot have sustained much debate and controversy. Deceptive
practices undermine a citizen's right to participate freely in the democratic



intimidation and other election law violations).

235. see vernon francis et al., lawyer's comm. for civil rights under law,
Preserving a Fundamental Right: Reauthorization of the Voting Rights Act (2003),
http://faculty.washington.edu/mbarreto/courses/Voting_Rights.pdf.

236. Id. at 14.

237. See 42 U.S.C. �� 1973 (2006).

238. See Voting Rights Coal. v. Wilson, 60 F.3d 1411,1412-13 (9th Cir. 1995) (action trying
to enjoin California from failing to comply with NVRA); Ass'n of Cmty. Org. for Reform Now v.
Edgar, 880 F. Supp. 1215 (N.D. 111. 1995) (private action brought against Illinois for failure to
comply with provisions of NVRA).

239. Deceptive Practices and Voter Intimidation Act, S. 453, 1 10th Cong. �� 3 (2007).

240. See supra notes 123-24.

24 1 . See supra Part LA.



2010] VOTER DECEPTION 387



process. When the right to vote is stolen via fraudulent, intimidating, or
deceptive acts, not only are the particular voter or group of citizens
disenfranchised, but their confidence in the democratic process is also
undermined. The pervasive inability or disinterest in prosecuting these acts leads
the perpetrators to believe that their actions can continue without penalty and
regard for their injury to democracy.

This right to participate embodies the essence of the democratic voting
process. When this access is thwarted by connivery, deception, intimidation, or
fraud, the fabric of the nation begins to unravel. Securing the threads of our
democratic fabric, through enforcement of constitutional rights and statutory
protections, tightens the bonds of freedom and protects the confidence and access
that citizens need and require to participate free from deceptive practices.
Governmental entities should wrap themselves in the protections afforded under
various constitutional provisions, including the Equal Protection Clause, to
protect its citizens from these acts. Where Congress lacks the willingness to
pursue such acts, the affected citizenry should have the opportunity to pursue a
private right of action in an effort to preserve the legitimacy of the democratic
process.



The Foreign Corrupt Practices Act in the Ultimate
Year of Its Decade of Resurgence



Mike Koehler*



Introduction

The Foreign Corrupt Practices Act (FCPA) was enacted in 1977, yet FCPA
enforcement was largely non-existent for most its history. 1 But during the past
decade, enforcement agencies resurrected the FCPA from near legal extinction.
FCPA enforcement activity in 2009, the ultimate year in the decade of the
FCPA's resurgence, suggests that FCPA enforcement will remain a prominent
feature on the legal landscape throughout this decade. After providing a brief
overview of the FCPA and FCPA enforcement, this Article highlights FCPA
issues and trends from the 2009 enforcement year and provides a glimpse of the
road ahead as the FCPA enters a new decade.

I. The Foreign Corrupt Practices Act Summarized

The FCPA is part of the Securities Exchange Act of 1934, 2 and it has two
main provisions: the antibribery provisions 3 and the books and records and
internal control provisions. 4 To better understand the FCPA issues and trends
from the 2009 enforcement year, these provisions, as well as FCPA enforcement,
are described next.

A. Antibribery Provisions

The antibribery provisions generally prohibit U.S. companies (whether public
or private) and their personnel; U.S. citizens; foreign companies with shares listed
on a U.S. stock exchange or otherwise required to file reports with the SEC; or
any person while in U.S. territory from: (i) corruptly paying, offering to pay,



* Assistant Professor of Business Law at Butler University, Indianapolis, Indiana.
Professor Koehler founded and writes the FCPA Professor Blog (http://fcpaprofessor.blogspot.com
) and his FCPA expertise and views are informed by a decade of legal practice experience at an
international law firm during which he conducted FCPA investigations around the world,
negotiated resolutions to FCPA enforcement actions with government enforcement agencies, and
advised clients on FCPA compliance and risk assessment.

1. See Dionne Searcey, U.S. Cracks Down on Corporate Bribes, WallSt .J., May 26, 2009,
at Al , available at http://online.wsj .com/article/SB 1 24329477230952689.html (noting that FCPA
enforcement was "largely dormant for decades"). See, e.g., Shearman & Sterling LLP, FCPA
Digest, Cases and Review Releases Relating to Bribes to Foreign Officials Under the
Foreign Corrupt Practices Act of 1977, available at http://www.shearman.com/files/
upload7fcpa_digest.pdf (listing FCPA enforcement actions chronologically); see also Foreign
Corrupt Practices Act (FCPA), http://www.justice.gov/crirninal/fraud/docs/statute.html (last visited
Mar. 8,2010).

2. See 15 U.S.C. ��� 78m(b), 78dd-l, 78dd-2, 78dd-3, 78ff (2006).

3. See infra Part LA.

4. See infra? 'art LB.



390 INDIANA LAW REVIEW [Vol. 43:389



promising to pay, or authorizing the payment of money, a gift, or anything of
value; (ii) to a foreign official; (iii) in order to obtain or retain business. 5

Although routinely described as a law applicable only to U.S. companies and
citizens, 6 the FCPA, as written and as enforced, can also apply to foreign
companies and foreign citizens. 7 In fact, the largest ever FCPA enforcement
action (in terms of fines and penalties) is against Siemens Aktiengesellschaft (also
known as "Siemens AG"), a German corporation with shares traded on a U.S.
exchange since 200 1. 8

The FCPA's antibribery provisions have three core elements: "anything of
value" 9 to a "foreign official" 10 for the purposes of "obtaining or retaining
business." 11 This Part briefly explores these core elements.

1. ''Anything of Value. " — The FCPA does not define the term "anything of
value," nor is the statute's legislative history illuminating. 12 FCPA enforcement
actions demonstrate that there is no de minimis value associated with this
element 13 and 2009 FCPA enforcement actions allege facts concerning "things of
value" across a wide spectrum. For instance, in the enforcement action against
Kellogg Brown & Root LLC and various other Halliburton Company affiliates,
"things of value" provided to Nigerian "foreign officials" included cash-stuffed
briefcases or cash-stuffed vehicles left in hotel parking lots. 14 On the other end
of the spectrum, the enforcement action against UTStarcom Inc. involved "things
of value" provided to Chinese "foreign officials" including "executive training
programs at U.S. universities" paid for by the company even though the programs



5. See 15 U.S. ��� 78dd-l, 78dd-2, 78dd-3 (2006).

6. See, e.g. , Elizabeth Spahn, International Bribery: The Moral Imperialism Critiques, 1 8
MINN. J. Int'lL. 155, 157 (2009) ("The U.S. Foreign Corrupt Practices Act (FCPA) criminally
prohibits U.S. corporations from bribing officials of foreign governments in order to obtain
business has been in effect for thirty years.").

7. See\5U.S.C. ��� 78dd-l, 78dd-3.

8. See, e.g., Press Release, SEC Charges Siemens AG for Engaging in Worldwide Bribery
(Dec. 15, 2008), available at http://www.foley.com/files/SiemensSECPressRelease.pdf; Press
Release, Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act
Violations and Agree to Pay $450 Million in Combined Criminal Fines (Dec. 1 5, 2008), available
at http://www.fcpaenforcement.com/FILES/tbl_s31Publications/FileUploadl37/5527/Siemens
DOJPressRelease.pdf.

9. 15U.S.C. ��78dd-l(a).

10. Id �� 78dd-l(a)(l).

11. Id �� 78dd- 1(a)(1)(B).

12. S. Rep. No. 95-114, at 17 (1977), reprinted in 1977 U.S.C.C.A.N. 4098, 4115; H.R.
CONF. Rep. No. 95-831, at 12 (1977), reprinted in U.S.C.C.A.N. 4121, 4124.

13. See, e.g., In re The Dow Chem. Co., Exchange Act Release No. 5528 1 , 2007 SEC LEXIS
286, at *7 (Feb. 13, 2007) (nothing that although certain improper payments "were in small
amounts — well under $ 1 00 per payment — the payments were numerous and frequent").

14. See Criminal Information fflf 17-20, United States v. Kellogg Brown & Root LLC, No.
H-09-071 (S.D. Tex. Feb. 6, 2009), available at http://fcpaenforcement.com/FILES/tbl_
s3 lPublications/FileUploadl 37/57 14/KBRCriminalInformation.pdf.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 39 1



"were not specifically related to [the company's] products or business." 15
2. "Foreign Official " — The FCPA defines "foreign official" as:

any officer or employee of a foreign government or any department,
agency, or instrumentality thereof, or of a public international
organization, or any person acting in an official capacity for or on behalf
of any such government or department, agency, or instrumentality, or for
or on behalf of any such public international organization. 16

There is no dispute that elected foreign government officials, other foreign
heads of state, and employees of foreign government agencies such as foreign
equivalents of the U.S. Treasury Department, U.S. State Department, etc., are
"foreign officials" under the FCPA. Improper payments to such "foreign
officials" to "obtain or retain business" are what Congress intended to prohibit by
passing the FCPA in 1977. 17

But the majority of 2009 FCPA enforcement actions (as well as others in
recent years) have absolutely nothing to do with such government officials.
Rather, the alleged "foreign officials" are often employees of alleged foreign
state-owned or state-controlled enterprises (SOEs). 18 The enforcement agencies
deem such individuals (regardless of rank or title 19 and regardless of how such



15. Complaint If 16, SEC v. UTStarcom, Inc., Case No. CV 09-6094 (N.D. Cal., Dec. 31,
2009), available at http://www.sec.gov/litigation/complaints/2009/comp21357.pdf.

16. 15 U.S.C. ��� 78dd- 1(f)(1)(A), 78dd-2(h)(2)(A), 78dd-3(f)(2)(A) (2006).

1 7. See S. Rep.No. 95-1 14, at 1-3 (1977), available at http://www.justice.gov/criminal/fraud/
fcpa/history/1 977/senaterpt-95- 1 14.pdf (noting in connection with the history of the bill — "[d]uring
the 94th Congress, the Committee on Banking, Housing, and Urban Affairs held extensive hearings
on the matter of improper payments to foreign government officials by American corporations;
noting in connection with a summary of the bill — "[the bill] makes it a crime for U.S. companies
to bribe a foreign government official for the specified corrupt purposes" and "[tjaken together, the
accounting requirements and criminal prohibitions of Title I should effectively deter corporate
bribery of foreign government officials." (emphasis added); see also H. REP. No. 94-83 1 , at 5
(1977), available at http://www.justice.gov/criminal/fraud/fcpa/history/1977/corruptrpt-94-83 1 .pdf
(consolidating similar, but not identical, House and Senate bills and noting that "[b]y incorporating
provisions from both bills, the conferees clarified the scope of the prohibition by requiring that the
purpose of the payment must be to influence any act or decision of a foreign official (including a
decision not to act) or to induce such official to use his influence to affect a government act or
decision") (emphasis added); H. Rep. No. 95-640, at 1 ( 1 977), available at http://www.justice.gov/
criminal/fraud/fcpa/history/1977/houseprt-95-640.pdf (noting in connection with the need for the
legislation "[m]ore than 400 corporations have admitted making questionable or illegal payments.
The companies, most of them voluntarily, have reported paying out well in excess of $300 million
in corporate funds to foreign government officials, politicians, and political parties.") (emphasis
added).

18. See infra notes 120-28 and accompanying text.

1 9. Lay-Person's Guide to FCPA, available at http://www.justice.gov/criminal/fraud/docs/
dojdocb.html ("The FCPA applies to payments to any public official, regardless of rank or
position.").



392 INDIANA LAW REVIEW [Vol. 43:389



individuals may be classified under local foreign law 20 ) as "foreign officials"
under the theory that their employers (often times a company with publicly traded
stock and other attributes of private business) are an "instrumentality" of a
foreign government. 21 The enforcement agencies' interpretation of the key
"foreign official" element of an FCPA antibribery violation is far from an
academic issue-spotting exercise. Rather, it is at the core of a significant number
of 2009 FCPA enforcement actions as demonstrated in Part II.

3. "Obtain or Retain Business. " — The third general element of an FCPA
antibribery violation is "obtain or retain business." 22 In other words, the "thing
of value" 23 corruptly offered or paid to the "foreign official" must be for the
purposes of

(i) influencing any act or decision of such foreign official . . . (ii)
inducing such foreign official ... to do or omit to do any act in violation
of the lawful duty of such foreign official ... or (iii) securing any
improper advantage; or inducing such foreign official ... to use his . . .
influence with a foreign government or instrumentality thereof to affect
or influence any act or decision of such government or instrumentality,
in order to assist such issuer in obtaining or retaining business for or
with, or directing business to, any person. 24

In contrast to the "foreign official" element and many other FCPA elements
and issues, this substantive element has been subject to judicial scrutiny. In
United States v. Kay, a case of first impression, the issue concerned whether
payments to Haitian "foreign officials" for reducing customs and sales taxes owed
to the Haitian government could fall within the FCPA's scope. 25 The issue
presented was in contrast to a typical FCPA scenario in which a company allegedly
makes improper payments to a "foreign official" to secure a foreign government



20. See Opinion Procedure Release, Dep't of Justice, No. 94-01 (May 13, 1994), available
at http://www.justice.gov/criminal/rraud/fcpa/opinion/1994/9401.html (opining that a general
director of a state-owned enterprise being transformed into a joint stock company is a "foreign
official" under the FCPA despite a foreign law opinion that the individual would not be regarded
as either a government employee or a public official in the foreign country). Pursuant to 1 5 U.S.C.
�� 78dd-l(e) (2006), parties may submit contemplated actions or business activity to the DOJ and
obtain a DOJ opinion whether the contemplated action or business activity violates the FCPA.
However, the DOJ's opinion has no precedential value, and its opinion that the contemplated
conduct is in conformance with the FCPA is entitled only to a rebuttable presumption should an
FCPA enforcement action be brought because of the conduct. See Foreign Corrupt Practices Act
Opinion Procedure, 28 C.F.R. ��� 80.1-80.16 (2009), available at http://www.justice.gov/
criminal/fraud/fcpa/opinion/frgncrpt.html.

2 1 . See Procedure Release, supra note 20.

22. 15 U.S.C. ���78dd-l(a)(9)(B), 78dd-2(a)(l)(B), 78dd-3(a)(l)(B) (2006).

23. Id. �� 78dd- 1(a)(3).

24. Id.

25. See United States v. Kay, 359 F.3d 738 (5th Cir. 2004).



2010] THE FOREIGN CORRUPT PRACTICES ACT 393



contract. 26

In Kay, the Fifth Circuit Court of Appeals concluded, like the lower court,
that the "obtain or retain business" element was ambiguous, and it thus analyzed
the FCPA's legislative history. 27 In reviewing the legislative history, the court
was convinced that Congress intended to prohibit a range of payments wider than
payments that directly influence the acquisition or retention of government
contracts. 28 The court thus held that making payments to a "foreign official" to
lower taxes and custom duties in a foreign country can provide an unfair
advantage to the payer over competitors and thereby assist the payer in "obtaining
and retaining business." 29

But the Kay court empathically stated that not all such payments to a "foreign
official" outside the context of directly securing a foreign government contract
violate the FCPA; it merely held that such payments could violate the FCPA. 30
According to the court, the key question of whether such payments constitute an
FCPA violation depend on whether the payments were intended to lower the
company's costs of doing business in Haiti enough to assist the company in
obtaining or retaining business in Haiti. 31 The court then listed several
hypothetical examples of how a reduction in customs and tax liabilities could
assist a company in obtaining or retaining business in a foreign country. 32 On the
other hand, the court also recognized that "[t]here are bound to be circumstances"
in which a customs or tax reduction merely increases the profitability of an
existing profitable company and presumably does not assist the payer in obtaining
or retaining business. 33

Thus, contrary to popular misperception, 34 Kay does not hold that all
payments to a "foreign official" for avoiding customs duties or sales taxes in a
foreign country fall within the FCPA's scope. Rather, the decision merely holds
that Congress intended for the FCPA to apply broadly to payments intended to
assist the payer, directly or indirectly, in obtaining or retaining business and that
payments to a "foreign official" to reduce customs and tax liabilities can, under
appropriate circumstances, fall within the statute.

Despite the equivocal nature of the Kay holding, the decision clearly



26. See, e.g., In re United Indus. Corp., Exchange Act Release No. 60005 (May 29, 2009),
available at http://www.sec.gov/litigation/admin/2009/34-60005.pdf (instituting FCPA enforcement
action concerning payments to Egyptian Air Force officials to build a military aircraft depot for
Egypt's Air Force).

27. See Kay, 359 F.3d at 743-44.

28. See id. at 749-50.

29. See id. at 755-56.

30. Id.

31. Id.

32. See id. at 759-60.

33. Id. at 760.

34. See Chadbourne & Park LLP, United States Supreme Court Denies Certiorari in
Controversial Foreign Corrupt Practices Act Case: Expansive Enforcement of the FCPA Likely
to Continue, http://www.chadbourne.com/clientalerts/2008/fcpa/ (last visited Mar. 26, 2010).



394 INDIANA LAW REVIEW [Vol. 43 :389



energized the enforcement agencies. Post-Kay there has been an explosion in
FCPA enforcement actions, including actions in 2009, where the alleged
improper payments involve customs duties and tax payments or are otherwise
alleged to have assisted the payer in securing foreign government licenses,
permits, and certifications which assisted the payer in generally doing business
in a foreign country. 35

In short, the FCPA's antibribery provisions generally prohibit those subject
to the statute from corruptly paying or offering "anything of value" to a "foreign
official" in order to "obtain or retain business." Because of the FCPA's third-
party payment provisions, described below, this prohibition is both direct and
indirect.

4. Third-Party Payment Provisions. — The FCPA's broad third-party
payment provisions prohibit those subject to its provisions from directly making
payments meeting the above elements, as well as providing anything of value to
"any person, while knowing" that all or a portion of the thing of value will be
given, directly or indirectly, to a "foreign official" to "obtain or retain business." 36
Like other FCPA elements, the enforcement agencies broadly interpret this
knowledge requirement. The knowledge element may be satisfied when one has
actual knowledge that a third party is providing "anything of value" to a "foreign
official" to "obtain or retain business" and also when one"has a firm belief that
such circumstance exists or that such result is substantially certain to occur" or
"is aware of a high probability of the existence of such circumstance, unless the
person actually believes that such circumstance does not exist." 37

B. Books and Records and Internal Control Provisions

The FCPA, as originally enacted in 1977 and at present, also contains books
and records and internal control provisions. 38 In contrast to the antibribery
provisions, the books and records and internal control provisions only apply to



35. See, e.g., Complaint H 1, 51, SEC v. Nature's Sunshine Prods, et al., No. 2:09CV0672
(CD. Utah July 31, 2209), available at http://www.sec.gov/litigation/complaints/2009/
comp21162.pdf (charging FCPA violations involving payments to Brazilian customs agents to
import certain unregistered products into Brazil); Helmerich & Payne, Inc., Non-Prosecution
Agreement, Statement of Facts |4 (July 9, 2009), available at http://www.law.virginia.edu/pdf/
faculty/garrett/helmerich.pdf [hereinafter Helmerich & Payne, Inc.]; In re Helmerich & Payne, Inc.
Cease and Desist Order ffl 5-8, Release No. 60400 (S.E.C. July 30, 2009), available at
http://www.sec.gov/litigation/admin/2009/34-60400.pdf [hereinafter In re Helmerich & Payne]
(charging FCPA violations involving payments to various officials and representatives of the
Argentine and Venezuelan customs services in connection with the importation and exportation of
goods and equipment related to the company's business operations in those countries).

36. 15 U.S.C. ��� 78dd-l(a)(3), 78dd-2(a)(3), 78dd-3(a)(3) (2006).

37. See id. �� 78dd-l(f)(2)(A)-(B); see also Kenneth Winer & Gregory Husisian, The
'Knowledge ' Requirement of the FCPA Anti-Bribery Provisions: Effectuating or Frustrating
Congressional Intent? WHITE-COLLAR Crime, Oct. 2009, at 10, available at http://www.foley.
com/files/tbl_s31Publications/FileUploadl37/6535/FCP AWinerHusisian2009.pdf.

38. 15 U.S.C. �� 78m(b)(2)(A)-(B) (2006).



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 395



entities with "a class of securities" registered pursuant to the securities laws or
entities otherwise "required to file reports" pursuant to the securities laws
(collectively "Issuers"). 39 As a practical matter, 40 the books and records and
internal control provisions apply only to publicly-held companies with shares
traded on a U.S. exchange — a category which can include numerous foreign
companies with shares traded on a U.S. exchange. 41

The books and records provisions require Issuers to "make and keep books,
records, and accounts, which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the [Issuer." 42 The companion
internal control provisions require Issuers to "devise and maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that" — among other things:

(i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary (I)
to permit preparation of financial statements . . . (II) to maintain
accountability for assets; [and] (iii) access to assets is permitted only in
accordance with management's general or specific authorization . . . , 43

C. Enforcement of the Foreign Corrupt Practices Act

The FCPA is both a civil statute and a criminal statute, and because it is part
of the securities law, both the Department of Justice (DO J) and the Securities and
Exchange Commission (SEC) have enforcement authority. Like other securities
law violations (such as insider trading), the issue of intent and a prosecutor's
ability to satisfy the higher burden of proof required for a criminal conviction
(beyond a reasonable doubt) may determine whether an FCPA violation is
pursued with criminal charges or merely civil charges. In terms of which
enforcement agency (DOJ or SEC) will prosecute the charges, the SEC has civil
enforcement authority only, and, even more constrained, it only regulates Issuers.
The end result is that the DOJ "is responsible for all criminal enforcement" of the
statute (both the antibribery and books and records and internal control



39. Id.

40. In rare instances, a company may still be "required to file periodic reports" pursuant to
the securities laws, yet not have publicly traded shares. See The FCPA Blog, http://www.fcpablog.
com/blog/20 1 0/ 1 1\ O/non-public-issuer-discloses-investigation.html (Jan. 1 0, 20 1 0, 1 0:08) (noting
that PBSJ Corporation, while not having any publicly traded securities, is nevertheless required to
file periodic reports with the SEC given the extent of its shareholders (mostly current and former
employees).

41 . See, e.g., Press Release, U.S. Resolves Probe Against Oil Company that Bribed Iranian
Official (Oct. 13, 2006), available at http://www.justice.gov/opa/pr/2006/October/06_crm_
700.html ("Although Statoil is a foreign issuer, the Foreign Corrupt Practices Act applies to foreign
and domestic public companies alike, where the company's stock trades on American exchanges
. . . .").

42. 15 U.S.C. �� 78m(b)(2)(A) (2006).

43. Id. �� 78m(b)(2)(B).



396 INDIANA LAW REVIEW [Vol. 43:389



provisions) and civil enforcement of the antibribery provisions against non-
Issuers subject to the FCPA jurisdiction. 44 The SEC is responsible "for civil
enforcement of the antibribery provisions with respect to [I]ssuers" as well as
civil enforcement of the books and records and internal control provisions. 45

Because improper payments that violate the FCPA's antibribery provisions
are also often disguised or inaccurately recorded on the company's books and
records, many FCPA enforcement actions against Issuers include parallel DOJ
and SEC enforcement actions for both antibribery violations and books and
records violations. 46 Further, internal control violations are often also pursued in
connection with antibribery and books and records violations on the theory that
effective internal controls would have prevented the improper payments and
improper recording of the payments. 47 Thus, as to Issuers, the FCPA is often a
three-headed monster when improper payments are made.

II. FCPA Trends and Issues from the 2009 Enforcement Year

The 2009 FCPA enforcement year saw the emergence of new trends and
issues as well as the continuation of certain aggressive enforcement theories.
Notable trends and issues from the 2009 FCPA enforcement year include the
undeniable fact that FCPA risk is omnipresent, the clear FCPA risks posed by
foreign agents, the emerging trend of individual (as opposed to just corporate)
FCPA prosecutions, and the troubling continuation of certain aggressive FCPA
theories of liability. These trends and issues are described below in more detail.

A. FCPA Risk Is Omnipresent

For much of the FCPA's history, the business community largely viewed the
FCPA as applying only to large companies, often resource extraction companies,
doing business in emerging markets. But with the increase in globalization, and
with domestic market saturation, particularly in a recession economy, it is no
longer just large resource extraction companies doing business in overseas
markets that need to be concerned with the FCPA. Although a company like
Exxon Mobil or Raytheon (given its large foreign government customer base)
may indeed have a higher FCPA risk profile, the FCPA equally applies to small
and medium sized companies, including those in Indiana, doing business or
seeking business in countries such as China and India. If the increase in FCPA
enforcement over the last decade has taught anything, it is that all companies, in
all industries, doing business in all countries face FCPA risk and exposure. This



44. See Lay-Person's Guide to FCPA, supra note 19.

45. Id

46. See Press Release, UTStarcom Inc. Agrees to Pay $1.5 Million Penalty for Acts of
Foreign Bribery in China (Dec. 31, 2009), available at http://www.justice.gov/opa/pr/
2009/December/09-crm- 1390.html; SEC v. UTStarcom, Inc., Litigation Release No. 21357 (Dec.
31, 2009), available at http://www.sec.gov/litigation/litreleases/2009/lr21357.htm [hereinafter
UTStarcom, Inc. Litigation Release].

47. See UTStarcom, Inc. Litigation Release, supra note 46.



2010]



THE FOREIGN CORRUPT PRACTICES ACT



397



salient fact is demonstrated by the below chart which lists the 2009 corporate
FCPA enforcement actions and provides details as to the industry and foreign
jurisdiction(s) involved.

Corporate FCPA Enforcement Actions (2009) — Industries and Jurisdictions 48



Company


Industry


Jurisdiction(s)


Avery Dennison Corp. 49


Consumer products, adhesives,
and materials


China, Indonesia, and
Pakistan


Control Components Inc. 50


Valve manufacturer serving the
power, oil and gas, and pulp and
paper industries


China, South Korea,
Malaysia, and United Arab
Emirates


Helmerich & Payne Inc. 51


Energy exploration and
production


Argentina and Venezuela


ITT Corp. 52


Engineering and manufacturing
company serving the water and
fluids management and defense
and security industries


China



48 . Excluded from the chart are two Iraqi Oil-For Food enforcement actions involving AGCO
Corporation and Novo Nordisk A/S. See, e.g., Press Release, AGCO Corp. to Pay $1 .6 Million in
Connection with Payments to the Former Iraqi Government Under the U.N. Oil-For-Food Program
(Sept. 30, 2009), available at http://www.foley.com/files/DOJagcopenalty.pdf; Press Release, Novo
Nordisk Agrees to Pay $9 Million Fine in Connection with Payment of $1 .4 Million in Kickbacks
Through the United Nations Oil-For-Food Program (May 11, 2009), available at
http://www.foley.com/files/NovoDOJRelease.pdf. These actions involved kickback payments to
the Iraqi government — not to any particular "foreign official," and thus, the conduct was not
actionable under the FCPA's antibribery provisions. See id. Even so, the payments and recording
of the payments still resulted in an FCPA enforcement action for books and records and internal
control violations. See id. This Article will refer to the enforcement actions represented in this
chart (minus these two exclusions) as the "2009 Corporate FCPA Enforcement Actions."

49. Complaint, SEC v. Avery Dennison Corp., No. CV09-5493DSF (CD. Cal. July 28,
2009), available at http://www.sec.gov/litigation/complaints/2009/comp21 156.pdf.

50. Criminal Information, United States v. Control Components Inc., No. SACR09-00162
(CD. Cal. July 28, 2009), ava//a6/e^http://www.justice.gov/criminal/pr/press_releases/2009/07/
07-3 1 -09control-guilty-information.pdf.

5 1 . Helmerich & Payne, Inc., supra note 35; In re Helmerich & Payne, supra note 35.

52. Complaint, SEC v. ITT Corp., No. l:09-cv-00272 (D.D.C Feb. 11, 2009), available at
http://www.sec.gov/litigation/complaints/2009/comp20896.pdf.



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[Vol. 43:389



KBR/Halliburton Co. 53


Engineering, procurement, and
construction company serving
the oil and gas industry


Nigeria


Latin Node, Inc. 54


Telecommunications


Honduras and Yemen


Nature's Sunshine Products,
Inc. 55


Nutritional supplements and
personal care products


Brazil


United Industrial Corp. 56


Defense


Egypt


UTStarcom Inc. 57


Telecommunications


China, Thailand, and
Mongolia



As highlighted by the above chart, the FCPA does not discriminate against
any one industry doing business in any particular country. The 2009 enforcement
year also demonstrates that it is just not Asian, African, or Middle Eastern
markets that present FCPA risks as several of the above enforcement actions
concerned conduct "closer to home" in the Western Hemisphere — a region that
is often overlooked in terms of FCPA compliance. The breadth of 2009
enforcement actions, both in terms of the companies involved and the countries
where the alleged conduct took place, show that FCPA risk is present in all
industries operating in all countries.

B. Third Party Agents Pose a Risk

The primary means of doing business or expanding business in a foreign
market is often to engage a foreign agent. 58 A foreign agent brings to the table
what a non-resident company lacks — an understanding and appreciation for the
local business environment and solid relationships with key business
actors — both key ingredients to a non-resident company's success in a foreign



53. Complaint, SEC v. Halliburton Co., No. 4:09-399 (S.D. Tex. Feb. 11, 2009), available
at http://www.sec.gov/litigation/complaints/2009/comp20897.pdf; Criminal Information, supra
note 14.

54. Criminal Information, United States v. Latin Node, Inc., No. 09-20239-CR-
HUCK/O'Sullivan (Mar. 23, 2009 S.D. Fla.), available at http://fcpaenforcement.com/FILES/tbl_
s31Publications/FileUploadl37/5945/ItemlLatinNode.pdf.

5 5 . Complaint, supra note 3 5 .

56. In re United Indus. Corp., Exchange Release No. 6005 (May 29, 2009), available at
http://www.sec.gov/litigation/admin/2009/34-60005.pdf.

57. UTStarcom, Inc. Non-Prosecution Agreement (Dec. 31, 2009), available at
http://www.law.virginia.edu/pd^faculty/garrett/utstarcom.pdf; Complaint, SEC v. UTStarcom, Inc.,
supra notQ 15.

58. This section uses the generic term "foreign agent" to refer to a wide range of foreign
third-party business partners such as foreign representatives, foreign distributors, foreign
consultants, foreign customs brokers, and foreign joint venture partners.



2010]



THE FOREIGN CORRUPT PRACTICES ACT



399



market. 59

Use of foreign agents is particularly high in growth markets such as China
and India where understanding and navigating through complex bureaucracies is
often a key ingredient to business success. 60 Further, in many foreign countries,
including most notably those in the Middle East, engaging a local agent or having
a local sponsor is a requirement before a non-resident company can do business
in the country. 61

But these attractive features of a foreign agent (i.e., knowledge of the local
business environment and relationships with key business actors) also present the
most troublesome risks for a company obligated to comply with the FCPA in
doing business in overseas markets. The FCPA risks posed by foreign agents is
demonstrated by the below chart which lists the 2009 corporate FCPA
enforcement actions involving, in whole or in part, foreign agent conduct.

Corporate FCPA Enforcement Actions (2009) — Foreign Agents



Company


Conduct


Avery Dennison Corp. 62

��


According to the SEC Complaint and Cease and Desist Order, Avery
Dennison Corporation's indirect subsidiary Avery (China) Co. Ltd.
paid, either directly or indirectly through others including
distributors, several kickbacks, sightseeing trips, and gifts to
Chinese foreign officials with the purpose and effect of improperly
influencing decisions by the foreign officials to assist Avery China
to obtain or retain business.



5 9 . Jamie Anderson et al . , Global Business — Lessons From the Developing World, WALL ST.
J., at R6, Aug. 17, 2009. This article profiles two companies that have penetrated markets in the
developing world through engagement of local partners. Id. One company was able to succeed in
rural Nigeria by working with local people who understood "local dynamics" and a "deep
understanding of how to manage the local environment." Id. Another company flourished in India
by "benefitting] from [the] wisdom" of local businesspeople already running business in the
market. Id.

60. See, e.g. , Danone Pulls Out of Disputed China Venture, WALL ST. J., Oct. 1 , 2009, at B 1
(noting that "[fjoreign firms have reported billions in sales through Chinese partnerships.
International giants such as Procter & Gamble, Starbucks and General Motors have operated wholly
or in part through joint ventures in China").

6 1 . See, e.g. , Lisa Middlekauff, To Capitalize on a Burgeoning Market? Issues to Consider
Before Doing Business in the Middle East, 7 RICH. J. GLOBAL L. & Bus. 159, 170 (2008).

62. SEC v. Avery Dennis Corp., Litigation Release No. 21156 (July 28, 2009), available at
http://www.sec.gov/litigation/litreleases/2009/lr21 156.htm; Complaint, supra note 49.



400



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[Vol. 43:389



Control Components Inc. 63


According to the DOJ Criminal Information, Control Components
Inc. made improper payments through its employees, agents, and
consultants to (among others) officers of Chinese and Korean state-
owned or state-controlled entities in order to obtain or retain
business. Often times, the agents and consultants were used as
"pass-through" entities to facilitate the improper payments.


Helmerich & Payne, Inc. 64


According to the DOJ Non-Prosecution Agreement and the SEC's
Cease and Desist Order, Helmerich & Payne Inc. acknowledged
responsibility for the conduct of two wholly-owned second tier
subsidiaries, Helmerich & Payne (Argentina) Drilling Company and
Helmerich & Payne de Venezuela C.A. for payments made by
subsidiary employees and agents to customs officials in Brazil and
Argentina to induce the officials to allow import and export of goods
that were not within applicable regulations thereby evading higher
duties and taxes on the goods.


ITT Corp. 65


According to the SEC's Complaint, ITT's wholly-owned Chinese
subsidiary, Nanjing Goulds Pumps Ltd. (NGP), made, either directly
or indirectly through third-party agents payments to employees of
Chinese Design Institutes (DIs) (some of which were Chinese state-
owned entities that assisted in the design of large infrastructure
projects in China). The SEC alleged that NGP employees made
certain of the payments through agents using inflated commissions
to the agents with the understanding that the agents would then make
payment to the DI employees who specified and recommended NGP
products.


Kellogg Brown & Root
LLC/KBR,

Inc/Halliburton Co. 66


According to the DOJ Criminal Information, Kellogg Brown & Root
LLC participated in a joint venture that made millions of dollars in
"consulting fee" payments to a United Kingdom and Japanese agent
for use in bribing Nigerian "foreign officials." Similarly, the SEC
complaint alleges that KBR Inc. and Halliburton Co. participated
and/or controlled and supervised entities that participated in the joint
venture that entered into the sham contracts with the two agents to
help facilitate the bribe payments.



63 . See Criminal Information, supra note 50; Press Release, Control Components Inc. Pleads
Guilty to Foreign Bribery Charges and Agrees to Pay $ 1 8.2 Million Criminal Fine (July 3 1 , 2009),
available at http://wwwjustice.gov/criminal/pr/press_releases/2009/07/07-3 1 -09control-guilty.pdf.

64. See Helmerich & Payne, supra note 3 5 ; Press Release, Hel merich & Payne Agrees to Pay
$1 Million Penalty to Resolve Allegations of Foreign Bribery in South America (July 30, 2009),
available at http://www.justice.gov/opa/pr/2009/July/09-crm-741 .html.

65. Complaint, supra note 52; SEC v. ITT Corp. Litigation Release No. 20896 (Feb. 1 1,
2009), available at http://www.sec.gov/litigation/litreleases/2009/lr20896.htm.

66. See Complaint, supra note 53; Criminal Information, supra note 14.



2010]



THE FOREIGN CORRUPT PRACTICES ACT



401



Latin Node, Inc. 67


According to the DOJ Criminal Information, Latin Node, Inc. made
improper payments to officials of Hondutel (the Honduran
government-owned telecommunications company) and Tele Yemen
(the Yemeni government-owned telecommunications company). In
Honduras, the DOJ alleged that Latin Node caused LN
Comunicaciones (a wholly-owned Guatemalan subsidiary) and
Servicios IP, S.A. (a Guatemalan company nominally owned by two
LN Comunicaciones employees) to sign a purported consulting
agreement with a company believed to be controlled by a foreign
officials' brother. The DOJ alleged that LN Comunicaciones'
employees signed checks to Servicios IP knowing and intending that
some or all of the money would be passed along to Hondutel
officials. In Yemen, the DOJ alleged that Latin Node, while seeking
to enter the Yemeni market, learned that Yemen Partner A had
obtained an agreement with TeleYemen at a favorable rate through
his privately owned company. Latin Node sought to partner with
Yemen Partner A to gain entry into the Yemeni market even though
Latin Node understood that Yemen Partner A had received the
favorable rate by making corrupt payments to certain Yemeni
officials.


Nature's Sunshine
Products, Inc. 68


According to the SEC's Complaint, Nature's Sunshine Products, Inc.
(NSP), through the conduct of its wholly-owned subsidiary in Brazil,
made cash payments to customs broker agents, some of which was
later used to pay Brazilian customs officials so that the officials
would allow NSP Brazil to import unregistered product into Brazil.


United Industrial Corp. 69


According to the SEC Cease and Desist Order, United Industrial
Corporation's (UIC), indirect wholly owned subsidiary, ACL
Technologies Inc. (ACL) made payments to a foreign agent to obtain
or retain business with the Egyptian Air Force. As described in the
Order, ACL's former President authorized payments to the agent
while knowing or consciously disregarding the high probability that
the agent would offer, provide or promise at least a portion of the
payments to Egyptian Air Force officials for the purpose of
influencing the officials to direct business to UIC through ACL.



67. See Criminal Information, supra note 43; Press Release, Latin Node Inc. Pleads Guilty
to Foreign Corrupt Practices Act Violation and Agrees to Pay $2 Million Criminal Fine (Apr. 7,
2009), available at www.justice.gov/criminal/pr/press_releases/2009/04/04-07-09LatinNode-
Plead.pdf.

68. See Complaint, supra note 54; SEC v. Nature's Sunshine Prods., Inc., Litigation Release
No. 2 1 1 62 (July 3 1 , 2009), available at http://www.sec.gov/litigation/litreleases/2009/lr2 1 1 62.htm.

69. See In re United Indus. Corp., Exchange Release No. 60005 (May 29, 2009), available
at http://www.sec.gov/litigation/admin/2009/34-60005.pdf.



402 INDIANA LAW REVIEW [Vol. 43:389



UTStarcom Inc. 70


According to the SEC's Complaint, the company "made payments to
purported consultants in China and Mongolia who provided no
documented services, under circumstances that showed a high
probability that the payments would be used to bribe" foreign
officials.



The FCPA risks in utilizing a foreign agent as demonstrated by the above
enforcement actions is most striking given that there were a total of nine
corporate FCPA enforcement actions in 2009. 71 Thus, all of the 2009
enforcement actions against companies involved (in whole or in part) foreign
agent conduct.

Engaging a foreign agent and maintaining a relationship with that agent can
expose a company to FCPA liability under both the FCPA's antibribery and
books and records and internal control provisions. When a foreign agent is used
to make or facilitate an improper payment to a "foreign official" to "obtain or
retain business," sham consulting contracts and/or inflated commission payments
are often utilized thus leading to improper recordings in the company's books and
records. Even if the foreign agent is engaged by a distant subsidiary or affiliate,
and even if the improper recording is made in that subsidiary's or affiliate's
books and records, a parent company will still likely face books and records
exposure. The enforcement theory is that the subsidiary's or affiliate's books and
records are consolidated with the parent's books and records for financial
reporting purposes. A parent company will also face internal controls exposure
on the theory that had the parent implemented sufficient internal controls
throughout its organization, the improper payment would never had occurred.
This controversial enforcement theory resembles strict liability and is best
demonstrated by the 2009 FCPA enforcement action against Halliburton Co. 72

In the Halliburton enforcement action, the company was held liable under the
FCPA's books and records and internal control provisions based on the conduct
of agents utilized, not by Halliburton, but by a joint venture in which Halliburton
participated indirectly through subsidiaries. Even though there was no allegation
that Halliburton knew of the improper conduct by the two agents (a U.K. agent
and a Japanese agent), Halliburton was nevertheless held liable based on the
allegation that Halliburton exercised control and supervision over the subsidiaries
(such as KBR) that participated in the joint venture. 73

For instance, the SEC alleged that Halliburton exercised control and
supervision over KBR and that during the relevant time period: (i) KBR's board
of directors consisted solely of senior Halliburton officials; (ii) the senior



70. Complaint, supra note 9; UTStar com., Inc. Litigation Release, supra note 46; Press
Release, supra note 46.

71. See The FCPA Blog, http://ww.fcpablog.eom/blog/2009/12/3 1/2009-fcpa-enforcement-
index.html (Dec. 31, 2009, 3:15).

72. See supra notes 53, 66 and accompanying text.

73. See supra notes 53, 66 and accompanying text.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 403



Halliburton officials hired and replaced KBR's senior officials, determined
salaries, and set performance goals; (iii) Halliburton consolidated KBR's
financial statements into its own, and all of KBR's profits flowed directly to
Halliburton and were reported to investors as Halliburton profits; and (iv) KBR's
former CEO discussed the projects at issue with senior Halliburton officials, who
were aware of the joint venture's use of the U.K. Agent, even though the SEC
does not allege that this individual or anyone else at KBR told Halliburton
officials that the U.K. Agent would use money obtained from the joint venture to
bribe Nigerian officials. 74

The SEC further alleged that while Halliburton's legal department conducted
a due diligence investigation of the U.K. Agent, the due diligence was inadequate
because Halliburton's policies did not require a specific description of the agent's
duties and because the agent did not agree to any accounting or audit of fees
received. 75 Further, the SEC alleged that Halliburton and KBR attorneys never
learned the identity of the owners of the Gibraltar-based consulting company used
by the U.K. Agent and did not check all of the agent's references, some of which
turned out to be false. 76 As to the Japanese Agent, the SEC alleged that
Halliburton conducted no due diligence and that Halliburton's policies and
procedures were deficient because it failed to properly scrutinize the agreement
with the agent. 77 The SEC further alleged that payments to the U.K. and Japanese
Agents were falsely characterized as legitimate "consulting" or "services" fees in
numerous Halliburton and KBR records (when, in fact, they were bribes) and thus
charged Halliburton with not only FCPA internal control violations, but also
books and records violations as well. 78

The FCPA enforcement action against Halliburton and its affiliated entities
sends a "proceed with caution" message to any company seeking to engage a
foreign agent to assist in obtaining or retaining business. Parent companies
should pay particular attention to the Halliburton action because FCPA exposure
may arise not only from agents it engages, but also from agents engaged by all
subsidiaries and affiliates over which the parent company exercises control and
supervision.

C. The Year of the Individual

Although the 2009 FCPA enforcement year saw the Kellogg, Brown &
Root/KBR, Inc. /Halliburton Company enforcement action involving a massive
bribery scheme in Nigeria (a record-setting enforcement action against a U.S.
company given the $579 million in combined criminal and civil penalties 79 ),



74. See Complaint, supra note 53, f 30.

75. See id. 131.

76. See id. % 32.
11. See id. |36.

78. See id. 1 37.

79. Marcia Coyle, Halliburton and KBR to Pay $579 Million in Penalties in Nigerian Bribe
Case, NAT'L L.J., Feb. 12, 2009, available at http://www.law.com/jsp/article.jsp?id=
1202428219124.



404 INDIANA LAW REVIEW [Vol. 43 :389



corporate FCPA prosecutions largely slowed to a trickle in the second half of
2009. Whether the 100-plus cases widely reported to be in the "pipeline" are
taking longer to resolve, 80 being resolved informally with no public disclosure,
or about to burst onto the scene in 2010 remains an open question.

Nevertheless, the biggest FCPA issue from the 2009 enforcement year, and
a clear emerging trend, is the focus on individual FCPA violators. 81 The DOJ's
pursuit of individuals is no surprise as the deterrent effect of an individual losing
his or her liberty is no doubt more powerful than a corporation paying a multi-
million fine with corporate money via a non-prosecution or deferred prosecution
agreement (NPA/DPA). Assistant Attorney General Lanny Breuer, in a speech
before a FCPA audience in November 2009, underscored this point when he said
that DOJ's pursuit of individuals was "no accident." He said that "prosecution
of individuals is a cornerstone of [DOJ's] enforcement strategy," and that "the
prospect of significant prison sentences for individuals should make clear to
every corporate executive, every board member, and every sales agent that we
will seek to hold you personally accountable for FCPA violations." 82

1. Casting a Wider Net. — As indicated by Breuer' s remarks, corporate
employees are not the only subjects of FCPA scrutiny. A significant
development from the 2009 enforcement year is also a focus on agents or
consultants engaged by companies to help facilitate improper payments. For
instance, in November 2009, Paul Novak (a former consultant of Willbros
International Inc.) pleaded guilty to a substantive count of violating the FCPA
and a conspiracy count for his role in facilitating payments to Nigerian foreign
officials. 83 The Novak prosecution represents an FCPA triangle of sorts in that
individual Willbros employees, as well as the corporation itself, previously settled
FCPA enforcement actions based on the same core conduct. 84 In connection with
the Novak plea, Breuer said that the "use of intermediaries to pay bribes will not
escape prosecution under the FCPA" and that the DOJ "will continue to hold
accountable all the players in an FCPA scheme — from the companies and their
executives who hatch the scheme, to the consultant they retain to carry it out." 85



80. Roger Witten, Foreign Corrupt Practices Act Compliance, 2009 EMERGING ISSUES 472,
Dec. 14, 2009 (citing Remarks of Mark Mendelsohn, Deputy Chief, Fraud Section of DOJ's
Criminal Division, The 22nd National Forum on the Foreign Corrupt Practices Act, American
Conference Institute (Nov. 17, 2009)).

81. See The FCPA Blog, supra note 71 (listing individuals criminally indicted, pleading
guilty, or found guilty, of FCPA violations in 2009).

82. Lanny A. Breuer, Assistant Att'y Gen., DOJ, Crim. 1 Division, The 22nd National Forum
on the Foreign Corrupt Practices Act (Nov. 17, 2009), available at http://www.justice.gov/
criminal/pr/speeches/2009/ 11/11-1 7-09aagbreuer-remarks-fcpa.pdf.

83 . See Press Release, Former Willbros International Consultant Pleads Guilty to $6 Million
Foreign Bribery Scheme (Nov. 12, 2009), available at http://www.justice.gov/opa/pr/2009/
November/09-crm- 1 220.html.

84. See FCPA Professor, http://fcpaprofessor.blogspot.com/search/label/Paul%20Novak
(Nov. 13,2009,13:37).

85. Press Release, supra note 83.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 405



Other agents or consultants criminally indicted in 2009 include U.K. citizens
Jeffrey Tesler and Wojciech Chodan for their alleged roles in the
KBR/Halliburton Nigeria scheme 86 and Canadian citizen OusamaNaaman for his
role in connection with an Iraqi Oil-For-Food matter. 87 Notwithstanding these
indictments, there still exists a widely held misperception that foreign nationals
are not subject to the FCPA. 88 But in 1998, the FCPA's antibribery provisions
were amended to, among other things, broaden the jurisdictional reach of the
statute to prohibit "any person" from making improper payments through "use of
the mails or any means or instrumentality of interstate commerce" or from doing
any other act "while in the territory of the United States" in furtherance of an
improper payment. 89 Thus, as to these foreign agents/consultants, the DO J
alleged a U.S. nexus in that e-mail communications concerning the bribe
payments were sent through U.S. Internet servers and improper payments passed
through U.S. bank accounts. 90

Another significant development from the 2009 enforcement year is a
demonstrated commitment by the DOJ to target "foreign official" recipients of
bribe payments. In a November 2009 speech at global anti-corruption
conference, Attorney General Eric Holder urged nations to work together to
ensure that "corrupt officials do not retain the illicit proceeds of their corruption"
and announced a "redoubled commitment on behalf of the [DOJ] to recover"
funds obtained by foreign officials through bribery. 91

Because the FCPA only applies to bribe-payers and not bribe-takers, 92 the
FCPA is not a tool in DOJ's pursuit of "foreign officials." But other legal
avenues are available to the DOJ to hold "foreign official" bribe recipients
accountable as two examples from 2009 demonstrate. In January 2009, in the
aftermath of the record-setting Siemens enforcement matter, the DOJ filed a
forfeiture action against bank accounts located in Singapore (money in these
accounts flowed through U.S. financial institutions) that were used to bribe the



86. See Press Release, Two UK Citizens Charged by United States with Bribing Nigerian
Government Officials to Obtain Lucrative Contracts as Part of KBR Joint Venture Scheme, (Mar.
5, 2009), available at http://www.justice.gov/criminal/pr/press_releases/2009/03/03-05-09tesler-
charged.pdf; see supra notes 53, 66 and accompanying text.

87. See Press Release, Canadian National Charged with Foreign Bribery and Paying
Kickbacks Under the Oil For Food Program (July 3 1 , 2009), available at http://www.justice.gov/
criminal/pr/press_releases/2009/07/07-3 l-09_naaman-indict.pdf.

88. See Spahn, supra note 6, at 157.

89. See 15 U.S.C. �� 78dd-3(a) (2006) (emphasis added).

90. See Indictment, United States v. Tesler, No. H-09-098 (S.D. Tex. Feb. 17, 2009),
available at http://www.justice.gov/criminal/pr/press_releases/2009/03/03-05-09tesler-
indictment.pdf; Indictment, United States v. Naaman, No. 1 :08-cr-00246 (D.D.C. Aug. 7, 2008),
available at http://www.mediafile.com/7ztvyjidxzez.

9 1 . Eric Holder, Att'y Gen., Opening Plenary of the VI Ministerial Global Forum on Fighting
Corruption and Safeguarding Integrity (Nov. 7, 2009), available at http://www.justice.gov/ag/
speeches/2009/ag-speech-09 1 1 07.html.

92. See United States v. Castle, 925 F.2d 831 (5th Cir. 1990).



406 INDIANA LAW REVIEW [Vol. 43:389



son of the former Bangladeshi Prime Minister. 93 In announcing the forfeiture
action, a DO J official said that the action "shows the lengths to which U.S. law
enforcement will go to recover the proceeds of foreign corruption." 94 The official
said that the DOJ will not only prosecute companies and executives who violate
the FCPA, but will also use forfeiture laws "to recapture the illicit facilitating
payments often used in such schemes." 95 In addition, in December 2009, the DOJ
criminally indicted (in what is believed to be a first) two "foreign officials" in
connection with an FCPA enforcement action. Robert Antoine and Jean Rene
Duperval, among others, were charged with money laundering conspiracy and
substantive money laundering given that their U.S. bank accounts were connected
with the bribery scheme. 96

2. The Summer of Trials. — The year of the individual also saw the summer
of FCPA trials against individuals. Business entities involved in FCPA
enforcement actions have historically shown zero interest in challenging the
enforcement agencies' aggressive prosecution theories, holding the agencies to
their burden of proof, and enduring the uncertainties of trial. In fact, no business
entity has publicly challenged either enforcement agency in an FCPA case in the
last twenty years. 97 Thus, corporate FCPA prosecutions are routinely settled
through an NPA or DP A. Because an NPA is subject to no judicial scrutiny, and
a DPA is subject to no meaningful judicial scrutiny, 98 there is no judicial scrutiny
in most FCPA enforcement actions whether factual evidence exists to support
each of the legal elements of an FCPA violation. Further, judicial scrutiny of
aggressive enforcement theories, upon which so many FCPA enforcement actions
are based, is also largely absent.

Individuals involved in an FCPA enforcement action, faced with a loss of
liberty, are more inclined to challenge the enforcement agencies and the summer



93. See Complaint, United States v. All Assets Held in the Name of Zasz Trading &
Consulting (D.D.C. Jan. 9, 2009), available at http://www.fcpaenforcement.com/FILES/tbl_
s3 lPublications/FileUploadl 37/5602/ForfeitureDOJComplaint.pdf.

94. Press Release, Department of Justice Seeks to Recover Approximately $3 Million in
Illegal Proceeds from Foreign Bribe Payments (Jan. 9, 2009), available at http://www.justice.
gov/criminal/pr/press_releases/2009/0 1 /0 1 -09-09foreign-bribes.pdf.

95. Id.

96. See Indictment, United States v. Joel Esquenazi et al., No. 09-21010 (S.D. Fla. Dec. 4,
2009), available at http://www.justice.gov/criminal/pr/press_releases/2009/12/12-7fraudhaiti-
indict_0.pdf. According to the indictment, Antoine and Duperval are both former Directors of
International Relations at Haiti Teleco — the alleged state-owned national telecommunications
company — and thus "foreign officials," at least under the enforcement agencies' aggressive
interpretation of that term. Id.

97. See The FCPA Blog, http://www.fcpablog.com/blog/20 1 0/2/1 0/a-gesture-of-justice.html
(Feb. 9, 2010 17:27) ("Not a single corporate defendant, big or small, has fought Foreign Corrupt
Practices Act charges in court for the past two decades.").

98. &?eU.S. Gov't Accountability Off., GAO-10-1 10, DOJ Has Taken Steps to Better
Track Its Use of Deferred and Non-Prosecution Agreements, But Should Evaluate
Effectiveness 12, 25 (2009), available at http://www.gao.gov/new.items/dl01 10.pdf.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 407



of 2009 was the most active trial period in the history of the FCPA.

a. Frederic Bourke and Azerbaijan bribery. — The most noteworthy FCPA
trial in 2009 involved Frederic Bourke. The trial centered on Bourke' s
participation, as an investor, in the privatization of the State Oil Company of the
Azerbaijan Republic. This investment was also made by former U.S. Senate
Majority Leader George Mitchell and Columbia University (among others), and
Bourke reportedly lost $8 million." In July 2009, a federal jury convicted
Bourke for conspiring to pay bribes to Azerbaijan officials in a "massive scheme"
to bribe according to the DOJ. 100 The DO J post- verdict press release states that
evidence presented at trial established that Bourke "was a knowing participant in
a scheme to bribe senior government officials in Azerbaijan with several hundred
million dollars in shares of stock, cash, and other gifts." 101 The release further
notes that "the bribes were meant to ensure that those officials would privatize
[the oil company] in a rigged auction that only Bourke, fugitive Czech investor
Viktor Kozeny and members of their investment consortium could win, to their
massive profit." 102

The Bourke case is arguably the most complex and convoluted case in the
FCPA's history. 103 The case included a nearly decade long investigation that
spanned the globe, dismissal of FCPA substantive charges on statute of
limitations grounds, reinstatement of the FCPA substantive charges, a
superseding indictment which then dropped the FCPA substantives charges, and
a six-week jury trial during which many observers believe that the jury confused
the FCPA's "knowledge" standard with negligence. 104 Further, even though
Judge Shira Scheindlin denied Bourke' s post- verdict motions, she did reject the
DOJ's aggressive interpretation of the FCPA's knowledge element. 105 Moreover,



99. See Memorandum of Law in Support of Defendant Frederic Bourke, Jr.'s Post-Trial
Motion for Entry of a Judgment of Acquittal Pursuant to Fed. R. Crim. P. 29 or for a New Trial
Pursuant to FED. R. CRIM. P. 33 at 3, 25, 33, United States v. Frederic Bourke, Jr., 05 Cri. 518,
(Aug. 1 0, 2009) (on file with author); Chad Abraham, Bourke Plans Extensive Defense in Oil Scam:
Part-time Aspen Resident Met with Azerbaijan Leader, ASPEN TIMES, Dec. 20, 2005, available at
http://www.aspentimes.com/article/20051220/NEWS/112200025.

100. Press Release, Connecticut Investor Found Guilty in Massive Scheme to Bribe Senior
Government Officials in the Republic of Azerbaijan (July 10, 2009), available at
http://www.justice.gov/opa/pr/2009/July/09-crm-677.html.

101. Id.

102. Id.

103. For more on the extensive background of the Bourke case, see Andrew Longstreth,
Azerbaijan Bribes Put One Mogul on Trial, Another in Exile, LAW.COM (Oct. 9, 2009), available
«/http://www.law.conVjsp/law/international/LawArticleIntl.jsp?id=1202434399273&Azerbaijan_
Bribes_Put_One_Mogul_on_Trial_Another_in_Exile.

1 04. See, e.g. , The FCPA Blog, http://www.fcpablog.com/blog/2009/7/20^ack-to-bourke.html
(July 19, 2009, 20:38); The FCPA Blog, http://www.fcpablog.eom/blog/2009/7/ 14/knowing-what-
you-dont-know.html (July 13, 2009, 20:12); The FCPA Blog, http://www.fcpablog.com/blog/
2009/7/ 12/bourkes-verdict-only-in-america.html (July 12, 2009, 19:08).

1 05 . See Kenneth Winer & Gregory Husisian, Recent Opinion Sheds Light on the Relevance



408 INDIANA LAW REVIEW [Vol. 43:389



Judge Scheindlin rejected the ten-year prison sentence sought by the DO J and
sentenced Bourke to 366 days in prison (followed by three years supervised
release). 106 At sentencing, even Judge Scheindlin stated that the case troubled her
and that after years of supervising the case, it was "still not entirely clear to [her]
whether Mr. Bourke is a victim, or a crook, or a little bit of both." 107 Although
the trial phase of the Bourke case is over, the case continues on appeal on grounds
including the FCPA's "knowledge" element and Bourke remains free on bail. 108
b. Louisiana Congressman William Jefferson's freezer cash. — The second
FCPA trial of the summer of 2009 involved former Louisiana Congressmen
William Jefferson. A federal jury acquitted Jefferson on a substantive FCPA
charge. 109 That charge, according to the criminal indictment, centered on
allegations that Jefferson attempted to bribe (with the infamous cash in the
freezer 110 ) Nigerian officials including the former Nigerian Vice President to
assist himself and others obtain or retain business for a Nigerian
telecommunications joint venture. ' x l But Jefferson was convicted of a variety of
charges (solicitation of bribes, honest services wire fraud, money laundering,
racketeering and conspiracy). 112 Just what conspiracy remains unclear. The
indictment charged conspiracy to solicit bribes, to commit honest services wire
fraud, and to violate the FCPA, but the jury was instructed that it only needed to
find Jefferson guilty on two out of three of those counts and the jury verdict form
did not require the jury to specify which counts it agreed upon. 113 The judge



of Due Diligence to the FCPA 's "Knowledge" Element, 4 CORP. ACCOUNTABILITY REP., at 2-3,
Nov. 13, 2009, available at http://www.foley.comy / files/tbl_s31Publications/FileUploadl37
/6597/CorporateAccount2009.pdf.

1 06. See Press Release, Connecticut Investor Frederic Bourke Sentenced to Prison for Scheme
to Bribe Government Officials in Azerbaijan (Nov. 11, 2009) available at http://www .justice.
gov/opa/pr/2009/November/09-crm- 1 2 1 7.html.

107. Chad Bray, Bourke Sentenced to One Year in Azerbaijan Bribery Case, WALL St. J. , Nov.
10, 2009, at B4, available at http://online.wsj.com/article/SB100014240527487044024045
74528003117098132.html.

108. The FCPA Blog, http://www.fcpablog.eom/blog/2009/l 1/19/Jefferson-and-bourke-are-
released-on-bail.html (Nov. 18,2009, 18:18).

109. See Press Release, Former Congressman William J. Jefferson Convicted of Bribery,
Racketeering, Money Laundering and Other Related Charges (Aug. 5, 2009), available at
http://www.justice.gov/opa/pr/2009/August/09-crm-775.html.

1 1 0. Dana Milbank, So $90, 000 Was in the Freezer. What 's Wrong with That?, WASH. POST,
May 23, 2009, at A2.

111. See Press Release, Congressman William Jefferson Indicted On Bribery, Racketeering,
Money Laundering, Obstruction of Justice, and Related Charges (June 4, 2007), available at
http://www.justice.gov/opa/pr/2007/June/07_crm_402.html; US Probes Nigeria Vice-President,
BBC NEWS, Aug. 29, 2005, available at http://news.bbc.co.Uk/2/hi/africa/4192186.stm.

112. See Press Release, supra note 109.

113. See Jonathan Tilove, William Jefferson Case Will Always Be Remembered for Cash in
the Freezer, TlMES-PlCAYUNE (New Orleans), Aug. 5, 2009, available at http://www.nola.
com/news/index.ssf/2009/08/williamjefferson_case_will_al_l.html.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 409



sentenced Jefferson to thirteen years in federal prison and he remains free on bail
pending his appeal. 114 Notwithstanding the fact that a jury found Jefferson not
guilty of substantive FCPA charges and notwithstanding the ambiguous nature
of the jury's conspiracy verdict, the DOJ still maintains that Jefferson was found
guilty of FCPA violations. 115

c. Gerald and Patricia Green 's Thailand film festival bribes. — The third
FCPA trial of the summer of 2009 involved Los Angeles-area entertainment
executives Gerald and Patricia Green. A federal jury convicted the Greens of
substantive FCPA violations, conspiracy to violate the FCPA, and other
charges. 116 According to the DOJ post-verdict release, evidence introduced at
trial showed that "beginning in 2002 and continuing into 2007, the Greens
conspired with others to bribe the former governor of the [Tourism Authority of
Thailand (TAT)] in order to get lucrative film festival contracts as well as other
TAT contracts." 117 The Greens await sentencing. 118

These trials were indeed rare and the fact remains that every corporate FCPA
enforcement action over the last two decades has been resolved without a trial and
nearly every FCPA individual enforcement action has also been resolved without
a trial. If nothing else, the FCPA trials in 2009 demonstrate that when a FCPA
enforcement action is challenged, the DOJ is not infallible when enforcing the
FCPA, that its aggressive interpretations of the statute will not be universally
accepted, and that even judges remain fuzzy as to the dividing line between
aggressive business conduct and conduct that violates the FCPA.

D. Aggressive and Untested Enforcement Theories

Ordinarily, aggressive government enforcement of a statute based on tenuous,
dubious, and in some cases untested legal theories invites judicial scrutiny in a
transparent, adversarial proceeding in which the government must meet its burden
of proof and establish that factual evidence exists to support the applicable legal
elements and in which valid and legitimate defenses are presented. Such judicial



1 14. See Press Release, Former Congressman William J. Jefferson Sentenced to 13 Years in
Prison for Bribery and Other Charges (Nov. 13, 2009), available at http://www justice.
gov/opa/pr/2009/November/09-crm- 1231. html; The FCPA Blog, supra note 108.

1 15. For instance, in a November 2009 speech Breuer stated: "In the past few months, we
have the completed the trials of the Greens in California, of Mr. Bourke in New York and of former
Congressman William Jefferson in Virginia. In each of these cases, individuals were found guilty
of FCPA violations and face jail time." Lanny A. Breuer, Assistant Att'y Gen., DOJ, Criminal
Division, Keynote Address to the Tenth Annual Pharmaceutical Regulatory and Compliance
Congress and Best Practices Forum (Nov. 12, 2009), available at http://www.justice.
gov/criminal/pr/speeches/2009/1 1/11-1 2-09breuer-pharmaspeech.pdf.

116. Press Release, Film Executive and Spouse Found Guilty of Paying Bribes to a Senior
Thai Tourism Official to Obtain Lucrative Contracts (Sept. 14, 2009), available at http://www.
justice.gov/criminal/pr/press_releases/2009/09/09-14-09green-guily.pdf.

117. See id.

118. The FCPA Blog, http://fcpablog.com/blog/20 10/1/22/sentencing-respite-for-the-
greens.html (Jan. 21, 2010, 17:38).



410 INDIANA LAW REVIEW [Vol. 43:389



scrutiny is particularly appropriate when enforcement theories result in multi-
million dollar corporate fines and penalties, as is often the case in FCPA
enforcement actions.

But such judicial scrutiny is essentially non-existent in the FCPA context
given the frequency in which FCPA enforcement actions are resolved through
NPAS, DP As, pleas, or SEC settlements. The result in many cases is that the
FCPA means what the enforcement agencies say it means. This feature of the
FCPA that distinguishes FCPA enforcement from nearly every other area of law,
and this feature was once again prominent during the 2009 FCPA enforcement
year.

1. "Foreign Official. " — The lack of judicial scrutiny of FCPA enforcement
actions is most troubling in connection with the enforcement agencies' aggressive
interpretation of the key "foreign official" element of an FCPA antibribery
violation. As described in Part I above, 119 the enforcement agencies'
interpretation of this element includes the theory that all employees (regardless
of title or position) of foreign SOEs, including SOE subsidiaries, are deemed
"foreign officials" under the FCPA on the theory that such entities are
"instrumentalities" of a foreign government.

The enforcement agencies' interpretation of the "foreign official" element is
just that, an interpretation, and it has never been accepted by a court. This
interpretation is no different than the DOJ or the SEC telling you that the person
you play softball with on Thursday nights is a U.S. "official" merely because he
or she works for General Motors or American International Group, Inc., given
that both companies are owned or controlled by the U.S. government.

This dubious interpretation is far from an academic issue-spotting exercise,
but is rather at the core of a majority of 2009 corporate FCPA enforcement
actions as demonstrated by the chart below which lists the enforcement actions
along with the alleged "foreign official(s)."

2009 Corporate FCPA Enforcement Actions — The "Foreign Officials"



Company


"Foreign Official(s)"


Avery Dennison Corp. 120


Chinese foreign officials including: "Traffic Management
Research Institute under the Ministry of Public Security located
in Wuxi, Jiangsu Province;" "an official at Henan Luqiao, a state-
owned enterprise;" "a state-owned end user," Indonesian customs
and tax officials, and Pakistani customs officials.



119. See supra text accompanying notes 1 6-2 1 .

120. Complaint, supra note 49, fflf 2, 9, 13-14, 16-17.



2010]



THE FOREIGN CORRUPT PRACTICES ACT



411



Control Components, Inc. 121


Alleged Vice President, Engineering Managers, General
Managers, Procurement Managers, and Purchasing Officers at
state-owned entities including, but were not limited to: "Jiangsu
Nuclear Power Corporation (China), Guohua Electric Power
(China), China Petroleum Materials and Equipment Corporation .
. . . PetroChina, Dongfang Electric Corporation (China), China
National Offshore Oil Company . . . Korea Hydro and Nuclear
Power . . . Petronas (Malaysia), and National Petroleum
Construction Company (United Arab Emirates) . . . ."


Helmerich & Payne Inc. 122


"Various officials and representatives of the Argentine and
Venezuelan customs services."


ITT Corp. 123


"Employees of numerous Chinese state-owned entities;" "thirty-
two different SOE customers;" "employees of Design Institutes
(some of which were SOEs) that assisted in the design of large
infrastructure projects in China."


KBR/Halliburton Co. 124


"High-level Nigerian government officials;" "Nigerian
government officials;" "The Nigerian National Petroleum
Corporation (NNPC) was a Nigerian government-owned
company charged with development of Nigeria's oil and gas
wealth and regulation of the country's oil and gas industry.
NNPC was a shareholder in certain joint ventures with
multinational oil companies. NNPC was an entity and
instrumentality of the Government of Nigeria . . ."; "Nigeria LNG
Limited (NLNG) was created by the Nigerian government . . .
and was the entity that awarded the related . . . contracts. The
largest shareholder of NLNG was NNPC, which owned 49% of
NLNG. The other owners of NLNG were multinational oil
companies. Through the NLNG board members appointed by
NNPC, among other means, the Nigerian government exercised
control over NLNG . . . NLNG was an entity and instrumentality
of the Government of Nigeria . . . ."



121 . Criminal Information, supra note 50, % 5.

122. Helmerich & Payne, Inc., supra note 35, f 4.

123. Complaint, supra note 52, ffl| 1, 10.

124. Criminal Information, supra note 14, |f 10-14, 18; Complaint, supra note 53, fflj 10, 14,



24.



412



INDIANA LAW REVIEW



[Vol. 43:389



Latin Node Inc. 125


"Hondutel, the Honduran government-owned
telecommunications company headquartered in Tegucigalpa,
Honduras, was an 'instrumentality' of the Honduran government,
and thus its employees and directors were 'foreign officials'
under the FCPA. . . . Tele Yemen, the Yemeni government-owned
telecommunications company headquartered in Sana'a, Yemen,
was an 'instrumentality' of the Yemeni government, and thus its
employees and directors were 'foreign officials' under the
FCPA."


Nature's Sunshine Products,
Inc. 126


"Brazilian customs brokers."


United Industrial Corp. 127


"[A]ctive [Egyptian Air Force] officials."


UTStarcom, Inc. 128


"Government-controlled municipal and provincial

telecommunications companies's employees;" "employees of

Chinese government-controlled telecommunications companies;"

"managers and other employees of 9 government customers in

China;" "a Chinese-government-controlled telecommunications

company."

"A government-controlled telecommunications company in

Thailand;"

"One Mongolian government official to help UTSI obtain a

favorable ruling in a dispute over its license."



As demonstrated by the above chart, the enforcement agencies' interpretation
of the key "foreign official" element of an FCPA antibribery violation to include
SOE employees was at the core of 66% (six out of nine) of the 2009 FCPA
enforcement actions against business entities. Further, because many of the
above enforcement actions (most notably Control Components Inc.) resulted in
several related actions against employees where the "foreign officials" were the
exact same, 129 the impact of this tenuous and dubious legal interpretation extends
far beyond just the enforcement actions profiled above.

The most aggressive application of the enforcement agencies "foreign
official" interpretation was in the KBR / Halliburton enforcement action in which
the enforcement agencies alleged that officers and employees of Nigeria LNG
Limited were "foreign officials" despite the fact that NLNG is owned 51% by a



125. Criminal Information, supra note 54, fflj 6, 11.

1 26. Complaint, supra note 35,^6.

127. In re United Indus. Corp., Exchange Release No. 60005 (May 29, 2009), available at
http://www.sec.gov/litigation/admin/2009/34-60005.pdf.

128. Complaint, supra note 15.

129. See supra note 121 and accompanying text.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 4 1 3



consortium of private multinational oil companies — Shell, Total, and Eni. 130 In
other words, even if an entity is undeniably majority owned by private
companies, the enforcement agencies will not retreat from its tenuous and
dubious legal interpretation that employees of that entity are "foreign officials"
under the FCPA.

DOJ officials have publicly acknowledged that there can be difficult
assessments of who qualifies as a "foreign official" under the FCPA. 131 Despite
this difficult assessment and despite the lack of any FCPA case law to support its
position, the enforcement agencies continue to aggressively interpret the "foreign
official" element and have steadfastly refused to provide useful guidance on this
issue to those subject to the FCPA. 132 For instance, in a November 2009 speech
(before a pharmaceutical industry audience — an industry which has become
subject to much FCPA scrutiny based on the interpretation), Breuer said:

consider the possible range of "foreign officials" who are covered by the
FCPA: Some are obvious, like health ministry and customs officials of
other countries. But some others may not be, such as the doctors,
pharmacists, lab technicians and other health professionals who are
employed by state-owned facilities. Indeed, it is entirely possible, under
certain circumstances and in certain countries, that nearly every aspect
of the approval, manufacture, import, export, pricing, sale and marketing
of a drug product in a foreign country will involve a "foreign official"
within the meaning of the FCPA. 133

Even if the enforcement agencies' aggressive "foreign official" interpretation
were to be upheld by a court, those subject to the FCPA could certainly benefit
from some clarity as to the factors the enforcement agencies consider when
analyzing whether a commercial enterprise (often times a company with publicly
traded stock and other attributes of private business) is an SOE.

Instead, in many cases the charging documents contain little more than mere
conclusory legal statements as to the key "foreign official" element. For instance,
the SEC's complaint against Oscar Meza, a former employee of Faro
Technologies, Inc., charging FCPA anti-bribery violations, is silent as to any
factual evidence supporting the theory that employees of unidentified "Chinese
state-owned companies" are "foreign officials." 134 Similarly, in the above-
profiled Control Components Inc. action, it is unclear what attributes of the
identified entities, such as Petronas (located in Malaysia), made them an
"instrumentality" of a foreign government in the eyes of the enforcement



1 30. See The Company— Nigeria LNG, http://www.nlng.com/NR/exeres/F48DE9A7-F3F3-
4A8E-929A-0C34FlCFF92B%2Cframeless.htm (last visited Mar. 9, 2010).

131. See Wrage Blog, http://wrageblog.org/2009/09/17/the-latest-fcpa-forecast-from-u-s-
regulators/ (Sept. 17,2009, 14:26).

132. Breuer, supra note 115.

133. Id.

134. See Complaint U 1, SEC v. Oscar H. Meza, No. l:09-cv-01648 (D.D.C. Aug. 28, 2009),
available at http://www.sec.gov/litigation/complaints/2009/comp21 190.pdf.



414 INDIANA LAW REVIEW [Vol. 43:389



agencies. 135

It remains an open question also whether the enforcement agencies conduct
any meaningful investigation before making the significant legal conclusion that
a seemingly commercial enterprise is nevertheless an "instrumentality" of a
foreign government. For instance, Petronas is "a fully-integrated oil and gas
corporation, ranked among Fortune Global 500' s largest corporations in the
world"; it has four subsidiaries listed on a stock exchange; and it has ventured
globally into more than thirty-two countries worldwide in its aspiration to be "a
[l]eading [o]il and [g]as [multinational of [c]hoice." 136 Would a court conclude
that such a profit seeking enterprise, one of the largest in the world, and one that
does business all over the world is truly an instrumentality of the Malaysian
government?

Why has no one challenged this interpretation of the key "foreign official"
element (the foundation on which a significant number of FCPA enforcement
actions is based)? Simply put, businesses are not in the business of setting legal
precedent and to challenge this interpretation would first require a business to be
criminally indicted — something no board of director member is going to allow
to happen in this post-Arthur Anderson world — regardless of the ultimate
criminal fine or penalty the DOJ is seeking. 137

Thus, this interpretation continues even though it is beyond ripe for
challenge. With foreign government owned sovereign wealth funds making
investments around the world (including in U.S. companies) 138 and with SOEs
listing public shares on various exchanges and otherwise doing business around
the world, there has never been a more critical time for the enforcement agencies
to make clear its legal reasoning and support for its tenuous and dubious legal
theory. Before another company or individual is subject to an FCPA enforcement
based on this tenuous and dubious legal theory, there should be at least be some
judicial acceptance of this theory.

2. "Control Person " Liability. — The 2009 FCPA enforcement year also saw
the SEC push the outer limits of FCPA liability. In the Nature's Sunshine
Products (NSP) enforcement action, the SEC also charged company executives
Douglas Faggioli and Craig Huff. 139 The settled complaint alleges that Faggioli
and Huff, as "control persons" of NSP, violated the FCPA books and records and
internal control provisions. 140 In language that is sure to induce a cold sweat in



135. See supra note 1 2 1 and accompanying text.

136. About Petronas, www.petronas.com.my/about_US.aspx (last visited Mar. 26, 2010).

137. See, e.g. , Winer & Husisian, supra note 37, at 1 ("Even if the government's application
of the anti-bribery provisions of the FCPA is excessively aggressive, no company or individual
wants to have to test the government's application in court.").

138. See, e.g. , Dinny McMahon, China Gives Glimpse of U.S. Holdings, WALL St. J., Feb. 9,
2010, at CI (noting that stated-owned China Investment Corp. has a combined $9.63 billion in
equity stakes in various U.S. companies including American International Group, Inc., Apple Inc.,
and News Corp.).

139. Complaint, supra note 35.

140. Id. fl 43-48, 69.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 4 1 5



any executive, the SEC generally alleged that both Faggioli and Huff had
"supervisory responsibilities" over NSP's senior management and policies. Yet
as "control persons," the SEC alleged that Faggioli and Huff "failed to make and
keep books, records and accounts, which in reasonable detail, accurately and
fairly reflected the transactions of NSP" and that they failed to devise and
maintain an adequate system of internal accounting controls. 141

Although the SEC has in past FCPA enforcement actions charged business
executives under other indirect theories of liability, 142 the charges against Faggioli
and Huff are the first time the SEC has used a "control person" theory of liability
in an FCPA enforcement action. Phillip Urofsky, a former DO J attorney
responsible for prosecuting FCPA cases currently in private practice, noted that
the NSP case is the "first FCPA action in which the SEC has charged individuals
under the Exchange Act's control liability theory." 143 He also noted that this case
departed from the SEC's prior practice in that previous SEC FCPA cases included
"direct allegations that the individuals . . . charged were involved in the action,
in creating the false books and records or creating controls or authorizing
payment of the bribes." 144 Urofsky calls the SEC's invocation of control person
liability in the FCPA context "unique and unprecedented." 145 As demonstrated
by the NSP enforcement action, the FCPA enforcement trend is clearly greater
scrutiny of business executives and a greater SEC expectation that executives
play a meaningful role in ensuring enterprise-wide FCPA compliance.

III. The Road Ahead for the Foreign Corrupt Practices Act

As the FCPA enters a new decade, the Obama Department of Justice is
expected to keep FCPA enforcement a top priority. Not only is the United States
expected to ramp-up enforcement of the FCPA, but other countries, most notably
the United Kingdom, are also expected to ramp-up enforcement of anti-corruption
laws as well. 146 This Section ends with a discussion of two bills currently in the
U.S. Congress that could affect FCPA compliance and enforcement in the new
decade.

A. Enforcement Priority Remains High

FCPA prosecution is expected to remain a top priority in the Obama
administration and thus a prominent feature on the legal landscape throughout
this decade. Both Attorney General Holder and Assistant Attorney General



141. A/.ffif 67-69.

1 42. See FCPA Professor, http://fcpaprofessor.blogspot.com/2009/08/more-on-control-person-
and-similar.html (Aug. 25, 2009, 15:42).

1 43 . Amanda Bronstad, SEC Trots Out a New Weapon: Control Person Liability, Nat'l L. J.,
Aug. 20, 2009, ava//a^/e^http://www.law.conVjsp/nlj/PubArticleNLJ.jsp?id=1202433157801&
hbxlogin=l.

144. Id.

145. Id.

146. See infra notes 150-53 and accompanying text.



416 INDIANA LAW REVIEW [Vol. 43:389



Breuer come from a white collar defense background and have familiarity with
the statute. The DOJ's increased focus on the FCPA has been documented over
the past few years. In his November 2009 speech, Breuer noted that the DOJ
"will continue to focus [its] attention on areas and on industries where we can
have the biggest impact in reducing foreign corruption." 147 Breuer noted that the
FCPA-specific FBI squad "has been growing in size and in expertise over the past
two years." He announced that the DOJ has "begun discussions with the Internal
Revenue Service's Criminal Investigation Division about partnering with [the
DOJ] on FCPA cases" as well as "pursuing strategic partnerships with certain
U.S. Attorney's Offices throughout the United States where there are a
concentration of FCPA investigations." 148

The SEC has also ramped up its FCPA resources. In August 2009, Robert
Khuzami (the SEC's Director of the Division of Enforcement), announced that
the SEC will be creating a specialized FCPA unit. Khuzami said:

The Foreign Corrupt Practices Act unit will focus on new and proactive
approaches to identifying violations of the Foreign Corrupt Practice Act,
which prohibits U.S. companies from bribing foreign officials for
government contracts and other business. While we have been active in
this area, more needs to be done, including being more proactive in
investigations, working more closely with our foreign counterparts, and
taking a more global approach to these violations. 149

B. Increased International Enforcement

The past year also saw an enforcement ramp up of anti-corruption laws
around the globe, including most notably in the United Kingdom. In July 2009,
the U.K. Serious Fraud Office (SFO) (an enforcement agency similar to the DOJ)
announced the first prosecution brought in the United Kingdom against a
company for overseas corruption as it charged Mabey & Johnson Ltd. with
making improper payments to secure public contracts in Jamaica and Ghana as
well as in connection with the Iraqi Oil-For-Food program. 150 In October 2009,
Halliburton announced that the SFO is conducting an inquiry into M. W. Kellogg
Company (a U.K. joint venture owned by a Halliburton affiliate) related to the
same Nigeria scheme at issue in the record-setting FCPA enforcement action. 151



147. Breuer, supra note 82.

148. Id.

149. Robert Khuzami, Director, Div. of Enforcement, SEC, Remarks Before the New York
City Bar: My First 100 Days as Director of Enforcement (Aug. 5, 2009), available at
http://www.sec.gov/news/speech/2009/spch080509rk.htm

150. See Press Release, Mabey & Johnson Ltd Prosecuted by the SFO (July 10, 2009),
available at http://www.sfo.gov.uk/press-room/latest-press-releases/press-releases-2009/mabey~
johnson-ltd-prosecuted-by-the-sfo.aspx.

151. See Halliburton Co., Transition Report Pursuant to Section 1 3 or 1 5(d) of the Securities
Exchange Act of 1934, Form 10-Q, Comm'n File No. 001-03492, at 10 (Sept. 30, 2009), available
at http://ir.halliburton.com/phoenix.zhtml?c=67605&p=irol-secText&TEXT=aHR0cDovL2Nj



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 4 1 7



Such parallel or "tag-along" enforcement actions in other jurisdictions as to the
same core conduct at issue in a U.S. FCPA prosecution is expected to become a
new norm in this decade.

Also relevant to the U.K.'s enforcement ramp up is a new Bribery Bill
expected this year. 152 In anticipation of this new law, in July 2009 the SFO
released a memo titled "Approach of the Serious Fraud Office to Dealing with
Overseas Corruption" in which the SFO announced that it will be using "all of the
tools at [its] disposal in identifying and prosecuting cases of corruption" as well
as adopting investigative strategies similar to the DOJ. 153

Other global anti-corruption developments in 2009 include the announcement
by Canadian authorities of a "special unit" dedicated to investigating international
bribery and enforcing its FCPA-like statute (the Corruption of Public Officials
Act) 154 as well as the Securency International investigation in Australia which
could result in that country's first prosecution of a company for foreign bribery. 155

C. Legislative Activity

Congress enacted the FCPA in 1977 and amended it in 1988 and 1998. 156
Given this approximate ten-year cycle, the statue would seem primed for a tune-
up and the current year may see some U.S. legislative activity, as two bills
currently in Congress could impact FCPA compliance and enforcement.

1. The Energy Security Through Transparency Act. — In September 2009,
"The Energy Security Through Transparency Act" (S-1700) was introduced and
it seeks to amend section 1 3 of the Securities Exchange Act by adding a new
section "Disclosure of Payment by Resource Extraction Issuers." 157

Bribery and corruption are bad; however, that does not mean that every
attempt to curtail bribery and corruption is good. Although perhaps a well-
intentioned bill, S. 1700 is, as described below, so broad that it would essentially
require "Resource Extraction Issuers" to disclose any payments made to just



Ym4uMTBrd216YXJkLmNvbS94bWwvZmlsaW5nLnhtbD9yZXBvPXRlbmsmaXBhZ2U9NjU
2NDMzMCZkb2M9MQ%3d%3d.

152. See, e.g., Bribery Bill, 2009-10, H.L. Bill [69] (U.K.), available at http://services.
parliament.uk/bills/2009- 1 0/bribery.html.

153. Approach of the Serious Fraud Office to Dealing with Overseas Corruption, available at
http://www.sfo.gov.uk/media/283 1 3/approach of the SFO to dealing with overseas corruption.pdf.

1 54. See Mark Morrison et al., Canada 's Corruption of Foreign Public Officials Act: What
You Need to Know and Why, BLAKES Bull.: WHITE COLLAR CRIME, Sept. 2009, at 1, available
at http://www.blakes.com/english/legal_updates/white_collar_crime/sept_2009/CFPOA.pdf.

155. Richard Baker & Nick McKenzie, When the Buck Stops at the Top, Age (MELBOURNE),
Nov. 28, 2009, available at http://www.theage.com.au/national/when-the-buck-stops-at-the-top-
20091127-jxll.html.

1 56. Legislative History, http://www.justice.gov/criminal/fraud/fcpa/history (last visited Mar.
9, 2010).

157. See Energy Security Through Transparency Act of 2009, S. 1700, 1 1 1th Cong. sec. 6
(2009), available at http://www.govtrack.us/congress/bill.xpd?bill=sl 1 1-1 700 (follow "full text"
hyperlink).



418 INDIANA LAW REVIEW [Vol. 43:389



about anybody in connection with the "commercial development of oil, natural
gas, or minerals" — including perfectly legitimate and legal payments.

Under this proposed act, the SEC shall issue final rules that would require:

• a "Resource Extraction Issuer"(a defined term which means an issuer that: "(i)
is required to file an annual report with the Commission; and (ii) engages in the
commercial development of oil, natural gas, or minerals");

• to include in its annual report;

• "information relating to any payment";

• made by the issuer, "a subsidiary or partner" of the issuer, "or an entity under
the control of the issuer";

• to a "foreign government" (a defined term which means a "foreign government,
an officer or employee of a foreign government, an agent of a foreign
government, a company owned by a foreign government, or a person who will
provide a personal benefit to an officer of a government if that person receives a
payment, as determined by the [SEC]");

• for "the purpose of the commercial development of oil, natural gas, or
minerals." 158

The final rules to be issued by the SEC would require that the annual report
include: "(i) the type and total amount of such payments made for each project"
of the issuer "relating to the commercial development of oil, natural gas, or
minerals; and (ii) the type and total amount of such payments made to each
foreign government." 159 Thereafter, the Act requires that "to the extent
practicable, the [SEC] shall make available online, to the public, a compilation
of the information required to be submitted" under the above rules. 160

Under the act, a "Resource Extraction Issuer" is defined to mean an issuer
that "engages in the commercial development of oil, natural gas, or minerals." 161
The term "commercial development of oil, natural gas, or minerals" in turn
"includes the acquisition of a license, exploration, extraction, processing, export,
and other significant actions relating to oil, natural gas, or minerals, as determined
by the [SEC]." 162

A significant question posed by these broad definitions, among others, is
whether selling equipment to a core resource extraction company, which is then
used to explore for oil, natural gas, or minerals a "significant action relating to
oil, natural gas, or minerals?" Or is selling exploration software to a core
resource extraction company, which is then used to explore for oil, natural gas,
or minerals a "significant action relating to oil, natural gas, or minerals?"

Further, under the act, the term payment: "(i) means a payment that is (I)
made to further the commercial development of oil, natural gas, or minerals; and
(II) not de minimis; and (ii) includes taxes, royalties, fees, licenses, production
entitlements, bonuses, and other material benefits, as determined by the



158.


Id. sec. 6(m)(l)-(2).


159.


Id. sec. 6(m)(2)(A).


160.


Id. sec. 6(m)(3)(A).


161.


Msec. 6(m)(l)(D)(ii)


162.


Id sec. 6(m)(l)(A).



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 4 1 9



[SEC]." 163

Ignoring the imperfect and imprecise definition of "Resource Extraction
Issuer," it is one thing to require such issuers to disclose royalties paid to a
foreign government. But the act seeks disclosure and reporting of much more.
The act could conceivably require disclosure of every single dollar a "Resource
Extraction Issuer" pays to anybody in connection with the "commercial
development of oil, natural gas, or minerals" if the money ultimately makes its
way to a foreign government, an officer or employee of a foreign government, a
company owed by a foreign government, or any person who will provide a
personal benefit to an officer of a government.

Further problematic is the fact that S-1700 does not contain a knowledge
requirement. Thus, a "Resource Extraction Issuer" will have a disclosure
obligation if it makes a payment to any person, who then unbeknownst to the
"Resource Extraction Issuer," makes a payment to a person "who will provide a
personal benefit to an officer of a government." 164

Not only is S-1700 incredibly broad and in many cases unintelligible, but it
also seeks to impose disclosure obligations on issuers (at least Resource
Extractions issuer) that Congress considered and rejected when it enacted the
FCPA. For instance, the original versions of what became the "FCPA" (i.e. the
"Foreign Payments Disclosure Act" and other similar bills) started out with
disclosure provisions, including provisions requiring all U.S. companies to
disclose all payments over $ 1 ,000 to any foreign agent or consultant and any and
all other payments made in connection with foreign government business. 165 As
to these proposed disclosure provisions, many lawmakers, including most notably
Senator Proxmire (a Democrat from Wisconsin and a congressional leader on the
FCPA issue), were concerned that the disclosure obligations were too vague to
enforce and would require the disclosure of thousands of payments that were
perfectly legal and legitimate. Proxmire said during congressional hearings: "I
would think [the corporations subject to the disclosure requirements] would want
some certainty. They want to know what they have to report and what they don't
have to report. They don't want to guess and then find themselves in deep trouble
because they guess wrong." 166

The final House report on what would become the "FCPA" is even more
emphatic in rejecting a disclosure regime contemplated by S-1700. The report
states (when discussing the various disclosure provisions previously debated, but
rejected):

Most disclosure proposals would require U.S. corporations doing
business abroad to report all foreign payments including perfectly legal
payments such as for promotional purposes and for sales commissions.



163. Id. sec. 6(m)(l)(C)(i)-(ii).

164. Id. sec. 6(m)(l)(B).

165. Prohibited Bribes to Foreign Officials: Hearing on S. 3133, 3379, & 3418 Before the
Committee on Banking, Housing and Urban Affairs, 94th Cong. 13 (1976) (statement of William
Proxmire, Committee Chairman, Committee on Banking, Housing and Urban Affairs).

166. Id



420 INDIANA LAW REVIEW [Vol. 43:389



A disclosure scheme, unlike outright prohibition, would require U.S.
corporations to contend not only with an additional bureaucratic overlay
but also with massive paperwork requirements. 167

2. The Foreign Business Bribery Prohibition Act. — The other bill currently
in Congress is H.R. 2152 ("The Foreign Business Bribery Prohibition Act") and
it could be a game-changer in terms of creating the much-needed FCPA case law
to define the statute's contours. 168 At present, there is no private right of action
under the FCPA. Enforcement of the law is solely in the hands of the DO J and
SEC. 169 The act, introduced in April 2009, seeks to amend the FCPA by creating
a private right of action for any U.S. company that can prove it lost business
because a "foreign concern" gained that same business by violating the FCPA. 170

Under the act, a plaintiff would need to prove that: (i) the "foreign concern"
violated the FCPA's anti-bribery provisions; and (ii) the violation prevented the
plaintiff from obtaining or retaining business and assisted the foreign concern in
obtaining or retaining business. 171 In other words, if a U.S. company can prove
that it lost business because a "foreign concern" gained that same business by
violating the FCPA, the U.S. company could bring a lawsuit seeking damages.
Under the proposed act, the damages would be the higher of the total amount of
the contract or agreement that the "foreign concern" gained in obtaining or
retaining the business or the total amount of the contract or agreement that the
plaintiff failed to gain. 172 The act also allows treble damages along with
attorneys' fees and costs. 173

With increased media scrutiny on the business practices of foreign
companies, including allegations that certain companies have been able to obtain
or retain business by making bribe payments, 174 the act could provide U.S.
companies a legal avenue to recover for such lost business.

The act also has the potential to change FCPA enforcement by creating an
avenue for much needed judicial scrutiny of the FCPA's elements. Because a
private plaintiff will have to prove the same elements enforcement agencies have
to establish to initiate an FCPA enforcement action, and because a private
plaintiff would not carry the "big stick" the enforcement agencies carry, FCPA



167. H.R. REP., supra note 17, at 3.

168. See Foreign Business Bribery Prohibition Act of 2009, H.R. 2152, 1 1 1th Cong. (2009),
available at http://www.govtrack.us/congress/bill.xpd?bill=hl 11-2152 (follow "full text"
hyperlink).

169. See Lamb v. Philip Morris, Inc., 915 F.2d 1024, 1029-30 (6th Cir. 1990).

170. See H.R. 2152, sec. 2(f)(1).

171. See id.

172. See id. sec. 2(f)(3).

173. See id. sec. 2(f)(3)(b).

1 74. See Sharon LaFraniere & John Grobler, China Spreads A id in Africa, with a Catch, N. Y.
TIMES, Sept. 21, 2009, at Al, available at http://www.nytimes.com/2009/09/22AVorld/Africa/
22nambia.html; see also Joshua Partlow, Afghan Minister Accused of Taking Bribe, WASH. POST,
Nov. 18, 2009, available at http://www.washingtonpost.eom/wp-dyn/content/article/2009/l 1/17/
AR20091 1 1704198_pf.html.



20 1 0] THE FOREIGN CORRUPT PRACTICES ACT 42 1



case law, as opposed to merely FCPA resolutions via NPAs or DP As, surely
seems likely if Congress enacts H.R. 2152. Thus, if Congress enacts H.R. 2152,
it could inject a plaintiffs component into the FCPA bar, and result in much
needed substantive FCPA case law. 175



175. See United States v. Kozeny, 493 F. Supp. 2d 693, 697 (S.D.N. Y. 2007) (noting the
"surprisingly few decisions throughout the country on the FCPA over the course of the last thirty
years").



Indiana Law Review

Volume 43 2010 Number 2



BOOK REVIEW



Review Essay:
The Disintegration of the Idea of Human Rights



R. George Wright*

Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton Univ.
Press 2008).

Intractable Disputes about the Natural Law: Alasdair MacIntyre
and Critics (Lawrence S. Cunningham ed., Univ. of Notre Dame Press 2009).

Michael J. Perry, Toward a Theory of Human Rights: Religion, Law,
Courts (Cambridge Univ. Press 2007).

James Griffin, On Human Rights (Oxford Univ. Press 2008).

G. A. Cohen, Rescuing Justice and Equality (Harvard Univ. Press 2008).

Michael J. Sandel, Justice: What's the Right Thing to Do? (Farrar,
Straus & Giroux 2009).

Charles R. Beitz, The Idea of Human Rights (Oxford Univ. Press 2009).

Introduction

It is widely, 1 though hardly universally, 2 held that the promotion and defense
of human rights precisely as human rights, is desirable as a matter of morality,



* Lawrence A. Jegen III Professor of Law, Indiana University School of Law —
Indianapolis. The author's thanks go to Rachel Anne Scherer and the staff of the Indiana Law
Review.

1 . See, e.g., Michael J. Perry, Toward a Theory of Human Rights: Religion, Law,
Courts 4 (Cambridge Univ. Press 2007) (arguing that "[ajlthough it is only one morality among
many, the morality of human rights has become the dominant morality of our time"); see also The
1948 Universal Declaration of Human Rights (1948), http://www.un.org/en/documents/udhr.

2. See, e.g., Richard Rorty, Human Rights, Rationality, and Sentimentality, in On HUMAN
Rights: The Oxford Amnesty Lectures 1993, at 1 1 1 (Stephen Shute & Susan Hurley eds.,
1993); Eric A. Posner, Human Welfare, Not Human Rights, 108 COLUM. L. REV. 1758 (2008)
(seeking to distinguish and focus in practice on the promotion of human welfare rather than human
rights). We set aside for the moment any broader philosophical or scientific position that is plainly
incompatible with typical understandings of human rights. For one example of such a materialist
view, see infra note 84. For a somewhat different perspective, consider the well-regarded novelist
Mary Gordon: "[W]e say we believe 'all men are created equal,' but we don't live, we probably
don't even want to live, as if it were true." Mary Gordon, Reading Jesus: A Writer's
Encounter with the Gospels 93 (2009). For an attempt to combine a form of relativism with
Kantian or Aristotelian approaches, see Steven Lukes, Moral Relativism 158-59 (2008).



424 INDIANA LAW REVIEW [Vol. 43 :423



law, and policy. But what if the very idea of a defensible human right is, in
various ways, disintegrating before us? This Review explores this possibility.

The past few years have seen the publication of a remarkable number of
deeply considered books on the theories of human rights, basic justice, and
related subjects. The particular books listed above and briefly referred to below,
as much as they vary among themselves, all fit within this category. The reader
of this Review must be forewarned that none of these books focuses centrally on
the question of the disintegration of the idea of a defensible human right, the
theme of this Review. Broader and lengthier synopses of each of the books are
but a few clicks away. But if the idea of a human right is indeed in the process
of unraveling, that fact alone is worth noting.

Out of respect for the respective book authors and the readers of this Review,
however, we will consider each book separately and in turn, as opposed to merely
swirling each throughout, as fragments in a thematic essay. Each book will be
introduced, but the depth of scholarship, care, and subtlety in argumentation, and
the sheer breadth of scope of each will preclude fair summary herein.

Nor does any uniquely best order of presentation suggest itself, even for the
sake of establishing our disintegrationist theme. Let us therefore simply begin
with what is in some ways the most metaphysically ambitious and academically
controversial treatment, that of the distinguished philosopher Nicolas
Wolterstorff.

I. Wolterstorff 's Explicit Theism

Nicholas Wolterstorff argues that there are genuine human rights only
because, or only if, there is a God of a traditional sort who "bestows" the
necessary sort of worth on human beings through God's permanent and equal
"attachment" love for every human being. 3 Human rights are thus not
fundamentally a matter of a divine command, 4 nor do they exist because of any



3. The very heart of Wolterstorff s obviously broader and more nuanced account is found
at Nicholas Wolterstorff, Justice: Rights and Wrongs 352-61 (Princeton Univ. Press 2008)
[hereinafter Wolterstorff, Justice: Rights and Wrongs]. For a highly condensed partial
version, see Nicholas Wolterstorff, Can Human Rights Survive Secularization?, 54 VlLL. L. REV.
41 1 (2009). For discussion, see Richard J. Bernstein, Does He Pull It Off? A Theistic Grounding
of Natural Inherent Human Rights?, 37 J. RELIGIOUS ETHICS 22 1 (2009); Mark C. Murphy, Book
Review, 1 1 9 Ethics 402 (2009); Paul Weithman, God's Velveteen Rabbit, 37 J. Religious Ethics
243 (2009); Nicholas Wolterstorff, Justice as Inherent Rights: A Response to My Commentators,
37 J. Religious Ethics 261 (2009) [hereinafter Wolterstorff, Justice as Inherent Rights]
(responding in particular to Bernstein and Weithman, supra), as well as the brief reviews by Daniel
A. Dombrowski, Book Review, 89 J. Religion 278 (2009) and Richard W. Garnett, Righting
Wrongs and Wronging Rights, 186 FIRST THINGS 48 (2008).

4. For a sampling of the variety and sophistication of Divine Command (or Divine
Preference) theories of ethics more broadly, see, for example, Robert Merrihew Adams, Finite
and Infinite Goods: A Framework for Ethics (1999); Thomas L. Carson, Value and the
Good Life (2000); Mark C. Murphy, An Essay on Divine Authority (2002); Linda Trinkaus



20 1 0] REVIEW ESSAY 425



inherent quality or capacity humans possess, 5 nor are there adequate secular
grounds for a belief in equal and universal human rights. 6

To shed light on the idea of God's attachment love for human beings,
Wolterstorff refers to the case of a child whose fondness and attachment for a
particular teddy bear is not, and perhaps never was, dependent upon any inherent
qualities of the bear in question. 7 We may assume the child's attachment love or
bonding to persist despite, or even because of, the bear's now undeniably
tattered, raggedy condition. Independent of the child's attachment love, we
might see no reason not to consign the otherwise undistinguished, fungible,
perhaps even unwholesome bear to the dumpster.

But if we choose to preserve and maintain the bear, our doing so may reflect
more than mere sentimentality or even empathy for the child. We may sensibly
believe that although we would, of course, not be wronging the bear itself in
disposing of it, we might well be genuinely wronging the child.

We must now replace the parties in this case with their counterparts. The
raggedy, intrinsically undistinguished bear corresponds, at least in some loose
sense, to every human being. The potential discarder of the raggedy bear
becomes any person or entity that might choose to violate the human rights of
any human being. And for the child, we substitute a God who loves all human
beings, whatever their defects and impairments, universally, equally, and
permanently, in a way that bestows or confers worth on all such persons, of a sort
that grounds their human rights.

Wolterstorff is careful to emphasize that he has not tried to show the
existence of the necessary sort of God. 8 His argument for human rights is thus
hypothetical, or contingent upon theistic commitments not argued for. Certainly,



Zagzebski, Divine Motivation Theory (2004); Philip L. Quinn, Divine Command Theory, in
The Blackwell Guide to Ethical Theory 53 (Hugh LaFollette ed., 2000). For discussion of
an earlier perspective, see Peter King, Ockham 's Ethical Theory, in THE CAMBRIDGE COMPANION
TO Ockham 227 (Paul Vincent Spade ed., 1999).

5. See, e.g., Wolterstorff, Justice: RiGHTSANDWRONGS,sw/?ranote3,at352,andmore
generally at 348-6 1 . Wolterstorff thus does not rely heavily on the traditional idea of the imago dei,
or of all humans being created in the relevant image and likeness of God. See id. at 348-52 and
infra note 6.

6. See Wolterstorff, Justice: Rights AND WRONGS, supra note 3 , at 323-4 1 (discussing
in succession the proposals of Immanuel Kant, Ronald Dworkin, and Alan Gewirth). The general,
overarching response is roughly that all the secular properties we might point to are either
insufficiently meaningful to bear the weight, or are not shared by all humans, or plainly come in
degrees in such a way as to undermine equality of rights. For further discussion, see JOHN E.
Coons & Patrick M. Brennan, By Nature Equal: The Anatomy of a Western Insight
(1999); Jeremy Waldron, God, Locke, and Equality (2002).

7. See Wolterstorff, Justice: Rights and Wrongs, supra note 3, at 359-60.

8. See id. at 360-61. For what amounts at least roughly to an attempt along those lines,
based on a cumulative-case Bayesian probabilistic argument, see Richard Swinburne, The
Existence of God (2d ed. 2004). See also William Lane Craig & Quentin Smith, Theism,
Atheism, and Big Bang Cosmology (1993).



426 INDIANA LAW REVIEW [Vol. 43 :423



Wolterstorff is entitled to rely on an intellectual division of labor in this respect. 9
It is also open to anyone to reject any one or more, if not all, of Wolterstorff s
theistic premises. 10 For all such critics, Wolterstorff s argument cannot get off
the ground. Wolterstorff has in this sense given the contemporary secularist no
compelling reason to accept the idea of equal and universal human rights.

Of course, even an argument as thoughtful as Wolterstorff s will inevitably
be subject to internal critique as well. Perhaps the most important such internal
critique is suggested by Wolterstorff s own teddy bear case. Simply put, we may
wrong the child if we callously discard the raggedy bear. But we clearly do not
thereby also wrong the bear itself. Now, human beings generally seem much
more susceptible of being wronged than do teddy bears. On Wolterstorff s
account, we can fathom why seriously wronging a human being could count as
a serious wrong against God. But it remains unclear why, on Wolterstorff s
account, the wrong accrues not only against God, but also against the human
being upon whom worth has been bestowed, and in the specific form of a human
rights violation. 11

II. MacIntyre's Occluded Theism

Alasdair MacIntyre's most recent contributions to ethical theory 12 are widely
known and respected. To the book under review, 13 Maclntyre has contributed a
fifty-two-page chapter entitled "Intractable Moral Disagreements," 14 as well as



9. It is also possible that if someone found Wolterstorff s account of human rights to
otherwise be the best or even the only convincing account, that judgment could perhaps count as
an argument, of some weight, backwards, in favor of Wolterstorff s theistic premises. See
Wolterstorff, Justice As Inherent Rights, supra note 3, at 272.

10. See, for example, the discussion of Richard Rorty's non-metaphysical pragmatism in
Timothy P. Jackson, The Theory and Practice of Discomfort: Richard Rorty and Pragmatism, 5 1
Thomist 270 (1987) and Bernstein, supra note 3, at 231-33. For one very specific question, we
might, assuming God's existence, ask how we could reasonably determine whether God's love in
history is equal for all persons and groups.

1 1 . For discussion, see Weithman, supra note 3. For Wolterstorff s response to Weithman,
see Wolterstorff, Justice as Inherent Rights, supra note 3, at 274-75 (arguing that "[b]estowed
honor is a form of worth").

12. See, e.g., Alasdair MacIntyre, Dependent Rational Animals: Why Humans
Beings Need the Virtues (1999); Alasdair MacIntyre, Three Rival Versions of Moral
enquiry: Encyclopaedia, Genealogy, and Tradition ( 1 990); Alasdair MacIntyre, Whose
Justice? Which Rationality? (1988), and classically, Alasdair MacIntyre, After Virtue (3d
ed. 2007) (1981). Critically, see the edited collections Alasdair MacIntyre (Mark C. Murphy
ed., 2003); After MacIntyre : Critical Perspectives on the Work of Alasdair MacIntyre
(John Horton & Susan Mendus eds., 1994).

1 3 . Intractable Disputes About the Natural Law: Alastair MacIntyre and Critics
(Lawrence S. Cunningham ed., Univ. of Notre Dame Press 2009) [hereinafter Intractable
Disputes].

14. Alasdair MacIntyre, Intractable Moral Disagreements, in INTRACTABLE DISPUTES, supra



20 1 0] REVIEW ESSAY 427



a twenty-page response to several accompanying critiques. 15

Among what persons commonly disagree over are the very existence,
substance, and enforcement of human rights. 16 To what extent are such
disagreements subject to consensual rational resolution? In answering this
question, Maclntyre draws upon his own prior work in the Aristotelian-Thomistic
natural law tradition, 17 along with elements of the communicative ethics of
Jurgen Habermas. 18 Maclntyre seeks to show both the power and the limitations
of his own approach to human rights.

Maclntyre, unlike Wolterstorff, seeks to avoid any appeal to theistic
premises, as opposed to more generally accessible insights of reason. 19 His
argument, however, implicitly relies on theistic ideas for support. In the end his
argument would in a sense be strengthened on its own terms, while being
rendered much more controversial, by acknowledging his need for specifically
theistic premises. There seems no escape from this dilemma in practical
persuasion.



note 13, at 1.

15. Alasdair Maclntyre, From Answers to Questions: A Response to the Responses, in
Intractable Moral Disputes, supra note 13, at 3 13.

16. See Jean Porter, Does the Natural Law Provide a Universally Valid Morality?, in
Intractable Disputes, supra note 13, at 53.

1 7. Among the most noteworthy recent treatments of natural law theory, any of which cites
earlier work, see, for example, Aquinas' s Summa Theologiae: Critical Essays (Brian Davies
ed., 2006); Rebecca Konyndyk DeYoung et al., Aquinas's Ethics: Metaphysical
Foundations, Moral Theory, and Theological Context: Reclaiming the Tradition for
Christian Ethics (2009); The Ethics of Aquinas (Stephen J. Pope ed., 2002); John Finnis,
Aquinas: Moral, Political, and Legal Theory (1998); Pamela M.Hall, Narrative and the
Natural Law: An Interpretation of Thomistic Ethics ( 1 994); Mark C. Murphy, Natural
Law in Jurisprudence and Politics (2006); Natural Law and Modern Moral Philosophy
(Ellen Frankel Paul et al., eds. 2001); Natural Law Theory: Contemporary Essays (Robert
P. George ed., 1992); Jean Porter, Natural & Divine Law: Reclaiming the Tradition for
Christian Ethics ( 1 999); Jean Porter, Nature as Reason (2005): Eleonore Stump, Aquinas
(2003).

1 8 . See, e.g. , Jurgen Habermas, Between Facts and Norms (William Rehg trans. , MIT
Press 1 996); Jurgen Habermas, Moral Consciousness and Communicative Action (Christian
Lenhardt & Shierry Weber Nicholsen trans., MIT Press 1990); Jurgen Habermas, Reason and
the Rationalization of Society (Thomas McCarthy trans. , Beacon Press 1984); see also Jurgen
Habermas, Between Naturalism and Religion (Ciaran Cronin ed., Polity Press 2008); The
Communicative Ethics Controversy (Seyla Benhabib & Fred Dallmayr, eds. 1990). For a
specific application, see R. George Wright, Traces of Violence: Gadamer, Habermas, and the Hate
Speech Problem, 16 Chi.-Kent L. Rev. 991 (2000).

19. In seeking to develop a largely Thomistically-inspired natural law theory that purports
to not depend upon theistic premises, Maclntyre implicitly follows the example of JOHN FINNIS,
Natural Law and Natural Rights (1980). Finnis' argument would also require accepting
theistic premises to achieve plausibility on its own terms. But of course, adding in specifically
theistic premises reduces the appeal of the entire argument for many persons.



428 INDIANA LAW REVIEW [Vol. 43 :423



At a general level, Maclntyre contends that arguments for or against human
rights can gain some real purchase even across different traditions of thought.
One tradition may be better able than the other to predict, explain, and resolve
problems and breakdowns internal to the other tradition, as perhaps both
traditions self-critically evolve. 20 But on the other hand, and by way of
limitation, there may be insufficient shared premises and common ground for
even a rationally superior tradition to inescapably rationally defeat the arguments
of its opponents. 21

Maclntyre 's own particular argument is that as social beings, we require
universally free, open, unthreatening, and unconstrained social deliberation over
the truth of the best means to promote our visions of the ultimate human good
and of the proper roles of other human goods. Our collective deliberation over
time must, by its nature, aim at achieving insights into truth, rather than merely
expressing preexisting inequalities of power, uncritical self-interest, irrationality,
or any threat to coerce any participant. 22

These conditions for the social deliberative pursuit of truth are said to be
"universal," "exceptionless," and "presupposed" as "principles [of] practical
reasoning," rather than drawn as conclusions at the end of our practical
reasoning. 23 But crucially, according to Maclntyre, in recognizing these qualities
of shared practical deliberation, we have already thereby accepted (identical)
principles of Thomistic natural law, and have also come some distance in
understanding how the natural law requires that a just political society itself be
structured. 24

We can, however, imagine a cogent response to Maclntyre from, say, the
utilitarian tradition. There are many possible forms of utilitarianism, with none
evidently purer than many others. 25 A utilitarian, intent on somehow maximizing
utility, in some sense, over some time frame, certainly need not feel bound by
Maclntyre' s argument generally, or for human rights in particular. 26 Utilitarians
may, or may not, accept any universal rules of the sort endorsed by Maclntyre.
A utilitarian might under certain conditions for the sake of utility exclude certain
persons from the deliberative process, or constrain their participation in certain
respects. 27



20. See Maclntyre, Intractable Moral Disagreements, in INTRACTABLE DISPUTES, supra note
13, at 4, 33.

21. See id. at 4, 32.

22. See id. at 20-23.

23. See id. at 24.

24. See id. at 23.

25. See the very useful distinctions articulated in David Lyons, The Moral Opacity of
Utilitarianism, in MORALITY, RULES, AND CONSEQUENCES: A CRITICAL READER 105 (Brad Hooker
et al. eds., 2000).

26. See Maclntyre, Intractable Moral Disagreements, in INTRACTABLE DISPUTES, supra note
13,at31.

27. It is probably fair to include even J.S. Mill within this category, in several respects. See
John Stuart Mill, On Liberty (Gertrude Himmelfarb ed., Penguin Books 1985) (1859). For



20 1 0] REVIEW ESSAY 429



Utilitarian departures from Maclntyre's exceptionless rules might, contrary
to Maclntyre's own system, be based not on any a priori principle, but on
accumulated experience. Perhaps the utilitarian would conclude that limiting the
universality of the pursuit of truth in some contexts actually speeds the discovery
or dissemination of truth. Or we might conclude that limiting the deliberative
participation of, say, Holocaust deniers pays for itself in other values, even apart
from truth. 28

In any event, we, along with the utilitarians, could easily envision reasonable
departures from the universalist procedures and human rights positions adopted
by Maclntyre. Truth is not something that is simply pursued maximally,
whatever the costs, or else held in contempt. Truth can rationally be pursued and
disseminated at various rates over time, in light of inescapable tradeoffs among
whatever contributes to truth-seeking, or tradeoffs with other values.

It would certainly be possible for Maclntyre to, in a sense, strengthen his
human rights and other natural law arguments with helpful theistic premises.
Maclntyre might then argue, for example, that divine providence serves to
infallibly guarantee that lying to a person, or that intentionally and directly
limiting that person's deliberative participation, can, over the course of eternity,
never pay off in terms of utility, or any other value. But such a theistic
buttressing — or grounding — would of course only invite objection and dissent
on any number of reasonable grounds. 29

III. Perry's Challenge to Purely Secular Human Rights Theory

Michael J. Perry's work on human rights is a remarkably sophisticated
treatment of an unusually broad range of systematically related questions. It
ranges from metaethics to subtle issues of legislative and judicial recognition and
enforcement, domestically and internationally, typically presented in the context
of controversial substantive human rights issues. 30 Our focus, however, will be
on Perry's narrower critique of some prominent secular, or presumably secular,
accounts of human rights.

Perry's own positive doctrine of the foundation of human rights is theistically
based. The basic human rights claim is that "every human being has inherent



discussion of the limitations of typical utilitarian theory as a human rights theory, see, for example,
James W. Nickel, Making Sense of Human Rights 92-93 (1987).

28. See generally R. George Wright, Dignity and Conflicts of Constitutional Values: The
Case of Free Speech and Equal Protection, 43 SAN DlEGO L. Rev. 527 (2006).

29. We saw this more directly and explicitly in the context of Nicholas Wolterstorffs
argument, supra Part I. For a broader critique of Maclntyre's argument, see Porter, Does the
Natural Law Provide a Universally Valid Morality? , in INTRACTABLE DISPUTES, supra note 13, at
74-75,81,90-91.

30. In addition to the present volume, see, for example, Michael J. Perry, The Idea of
Human Rights: Four Inquiries 11-41 (1998), as well as Michael J. Perry, The Political
Morality of Liberal Democracy ch. 1 (Cambridge Univ. Press 2009).



430 INDIANA LAW REVIEW [Vol. 43 :423



dignity and is inviolable." 31 The ground for this assertion reflects God's nature,
our own nature, the world, and the relationships between ourselves and God. In
particular, we "are the beloved children of God" and thus, at least analogically,
universally "sisters and brothers to one another." 32 In loving one another, and by
implication respecting one another's human rights, we also contribute to our
ultimate flourishing and fulfillment, 33 though we are not aiming at our own
flourishing as a goal in doing so. 34 Perry's theistic argument is logically separate
from any possible claims that religious motivation itself commonly inspires
human rights violations, that religious non-believers can consistently respect
human rights, and that there can be all sorts of non-theistic reasons, including
sheer self-interest, to support the idea of human rights. 35

Perry' s argument against the viability of purely secular human rights theories
does not take the form of a universal impossibility theorem, as in the work of
Kurt Godel, 36 or Kenneth Arrow. 37 Perry instead inductively examines some of
the leading candidates for a secular theory of human rights. Among these are the
widely recognized works of John Finnis, 38 Ronald Dworkin, 39 Martha
Nussbaum, 40 contemporary evolutionary biologists, 41 and in a rather more



3 1 . Perry, supra note 1 , at 6.

32. See id. at 8.

33. See id. at 9 . More starkly, see Hans Urs von B althas ar, Love Alone Is Credible 1 1
(D.C. Schindler trans., Ignatius Press 2004) (1963) ("Love alone is credible; nothing else can be
believed, and nothing else ought to be believed . . . .").

34. See PERRY, supra note 1 , at 1 1 .

35. This is distinct from offering any stable and viable justification and motivation for human
rights themselves. It does seem entirely possible, though, for the identification and specification
of particular human rights to draw upon secular considerations, including secular versions of ideas
such as love, dignity, respect, and equality, as long as those results are compatible with any theistic
conceptions necessary for their deeper justification. This issue is raised in Mark Modak-Truran,
Book Review, 88 J. Religion 257, 258 (2008).

36. See, e.g., Douglas R. Hofstadter, Godel, Escher, Bach: An Eternal Golden
Braid (20th Anniversary ed. 1999).

37. See Kenneth J. Arrow, Social Choice and Individual Values (2d ed., Yale Univ.
Press 1970).

38. See FINNIS, supra note 19. For discussion of traditional natural law theory as ultimately
dependent upon theistic premises, as opposed to merely an autonomous secular reason, see, for
example, Russell Hittinger, Natural Law as "Law": Reflections on the Occasion of "Veritatis
Splendor, " 39 Am. J. Juris. 1,11-16 (1994).

39. See PERRY, supra note 1, at 20-21; see also RONALD M. DWORKIN, JUSTICE FOR
Hedgehogs (forthcoming 2010).

40. See PERRY, supra note 1, at 22-23.

41. See id. at 23-25. Perhaps the single most useful source, incorporating a range of
sophisticated perspectives, is Evolution and Ethics: Human Morality in Biological and
Religious Perspective (Philip Clayton & Jeffrey Schloss eds., 2004). See also Richard Joyce,
The Evolution of Morality (2006); Anthony O'Hear, Beyond Evolution: Human Nature
and the Limits of Evolutionary Explanation ( 1 997); Holmes Rolston, III, Genes, Genesis



20 1 0] REVIEW ESSAY 43 1



skeptical vein, the pragmatist Richard Rorty. 42

Even the most skeptical theorist — perhaps a pure materialist, who denies
irreducible human consciousness, genuine freedom, and personhood in the
traditional sense — can still appropriate the language of human rights, and endorse
human rights on the basis of a broad, mysterious intuition. 43 But any secular
theory of human rights must also justify the universal reach and equality of
human rights, in the face of obvious inequalities among genetic human beings.
And the secular human rights theorist, including the secular evolutionary
biologist, must finally account reasonably for the substantial and perhaps
unrecognized sacrifices we might owe, individually or as a group, to distant
genetic strangers who can provide no reciprocity or recompense to anyone.

It can sometimes be personally or professionally beneficial for us to endorse
verbally a moral position that, if actually implemented as policy, would call for
our own substantial sacrifice, or that might be arbitrary or deeply incoherent. 44
At some point, though, the secular human rights theorist must explain how a
potentially demanding theory of human rights 45 could over the long run, widely
motivate, substantial and perhaps unrecognized sacrifices of individual or group
interest for the sake of genetic strangers who cannot possibly repay us, directly
or indirectly.



and God (1999); Peter Singer, A Darwinian Left: Politics, Evolution and Cooperation
( 1 999). For a skeptical reference, see Michael Ignatieff, Human Rights as Politics and
Idolatry 79 (Amy Gutmann ed., 2001) (suggesting some realistic limits to genetic altruism).

42. See PERRY, supra note 1, at 26-29; see also Jackson, supra note 10. For broader
discussion of Rorty, see, for example, Alan Malachowski, Richard Rorty (2002); Richard
Rorty (Charles Guignon & David R. Hiley eds., 2003); Rorty and His Critics (Robert B.
Brandom ed., 2000). See also Susan Neiman, Moral Clarity: A Guide For Grown-Up
Idealists 88-89 (rev. ed., Princeton Univ. Press 2009) (arguing that "in many fields — like the law
... the metaphysical questions Rorty dismissed are of great concern. For habits are just habits, and
those that require any effort tend to succumb to inertia in the absence of principle").

43 . For a sophisticated version of contemporary intuitionism, see MICHAEL Huemer, Ethical
Intuitionism (2005). See also Robert Audi, The Good in the Right: A Theory of Intuition
and Intrinsic Value (2005); Ethical Intuitionism: Re-Evaluations (Philip Stratton-Lake ed.,
2003). For a brief argument that human rights are, and should be thought of as, indemonstrably
self-evident, see Amitai Etzioni, The Normativity of Human Rights Is Self-Evident, 32 HUM. Rts.
Q. 187(2010).

44. See Michael Huemer, Why People Are Irrational About Politics, http://home.sprynet.
com/~owll/irrationality.htm (last visited Sept. 30, 2009).

45. See, for example, the classic early discussion by Peter Singer, Famine, Affluence, and
Morality, 1 PHIL. & PUB. Aff. 229, 23 1 ( 1972), and PETER UNGER, LIVING HIGH AND LETTING DIE:
Our Illusion of Innocence 134 (1996). From religious perspectives, for example, Garth L.
Hallett, Christian Neighbor-Love: An Assessment of Sex Rival Versions 3-6 (1989);
Timothy P. Jackson, The Priority of Love: Christian Charity and Social Justice 1 (2003).
For a religious response to the gulf between a broad and generous conception of human rights and
the limits of stable, long-term sacrificial human motivation, see John E. Hare, The Moral Gap:
Kantian Ethics, Human Limits, and God's Assistance 1 (1996).



432 INDIANA LAW REVIEW [Vol. 43 :423



The ultimate problem is that what is advertised as a secular human rights
theory may turn out to be dependent — "parasitic" would be the more pejorative
term — on a gradually abandoned theistic culture, however much theism may
itself be responsible for human rights violations. The concern is for the long-
term, overall motivational effects of what we might call a "deracination," in
which the idea of human rights is uprooted from its nourishing soil, and carefully
placed in the lapel of civilization's evening jacket. 46 Professor Perry rightly
leaves this ultimate concern as an open question. 47

IV. Griffin's Search for Human Rights Determinacy

James Griffin argues that "[w]hen during the seventeenth and eighteenth
centuries the theological content of the idea [of human rights] was abandoned,
nothing was put in its place," leaving us with only "indeterminate" references to
"human right." 48 Griffin's own proposal seeks what is called a constructivist, or
a coherentist as distinct from a rigorously foundationalist, 49 justification for
human rights. 50 Denying that there is a "sharp" distinction here between "fact
and value," 51 Griffin argues that we have a basic interest — our lives generally go
better — in the promotion of our personhood or our rational capacity for
"normative agency." 52 Normative agency is in turn the "capacity to choose and



46. It is certainly possible to argue that well-meaning persons of any sort, even fifty years
from now, will retain a certain basic empathy for the elemental sufferings of others, even distant
strangers. Let us hope so, but let us also hope that progress in pharmacology over the next fifty
years does not dull the edge of empathy through pharmaceuticals for either the worst-off or, more
likely, for potential sacrificers.

47. See Perry, supra note 1 , at 29. For further discussion, see Does Human Rights Need
God? (Elizabeth M. Bucar & Barbra Barnett eds., 2005).

48. James Griffin, On Human Rights 2, 15-18 (Oxford Univ. Press 2008) [hereinafter
Griffin, On Human Rights]. For an authoritative view, see James Griffin, Remarks at the Book
Launch (Jan. 23, 2008), available at http://ethics-etc.com/wp-content/uploads/2008/02/griffin.pdf
(last visited Sept. 25, 2009). See also William J. Talbott, Book Review, Notre Dame Phil. Rev.
(2008), available at http://ndpr.nd.edu/review. cfm?id= 14645; Rowan Cruft, Two Approaches to
Human Rights, 60 PHIL. Q. 176 (2010).

49. For this distinction in a legal context, see R. George Wright, Two Models of
Constitutional Adjudication, 40 Am. U. L. Rev. 1357 (1991). Of course, different networks of
theory may turn out to be equally coherent, or we may find the question of which network of theory
is more internally coherent to be unanswerable in any neutral way. For a brief version of a well-
known foundationalist approach to human rights, see Alan Gewirth, The Basis and Content of
Human Rights, in 23 NOMOS: HUMAN RIGHTS 1 19 (J. Roland Pennock & John W. Chapman eds.
1981). For critique, see, for example, Richard B. Friedman, The Basis of Human Rights: A
Criticism of Gewirth 's Theory, in 23 NOMAS: HUMAN RIGHTS, supra, at 148.

50. See Griffin, On Human Rights, supra note 48, at 4.

51. See id. at 123.

52. See id. at 149.



2010] REVIEW ESSAY 433



. . . pursue our conception of a worthwhile life." 53 This capacity comprises
autonomous choice, free action on one's choices, and the social and economic
means necessary for one's autonomy and freedom. 54 In addition, though, Griffin
emphasizes that human rights theory must take proper account of the nature and
limitations of human beings and their circumstances, or what Griffin calls
"practicalities." 55

The problem here is that Griffin's attempt to rely largely upon our best more
general ethical theory 56 ensures either the indeterminacy or, for many persons, the
arbitrariness of his theory. Griffin's reliance on the rational capacity for
normative agency in choosing and pursuing our understanding of a worthwhile
life would seem, for example, to rule out any human rights for kindergarten
students. There are of course, as Griffin recognizes, moral reasons not to
painlessly kill kindergarteners. But the idea of some human rights for
kindergarteners really does not seem to be an undue expansion of the core idea
of human rights.

Or we could instead think of an adult who has the capacity for rationally
formulating and pursuing a conception of the good life, but who has never
actually done so. Suppose a government violates that adult's human rights in
some way that predictably and perhaps intentionally motivates the adult to, for
the first time, actually formulate and pursue a plan of life — perhaps campaigning
against human rights violations. In such a case, a human rights violation perhaps
intentionally promotes the realization of what was once a mere unused capacity
for normative agency.

More fundamentally, the basic relationship between matters of fact and
matters of value is not just a matter of overlap, as in Griffin's theory, but remains
broadly controversial. 57 It is thus hardly surprising, overall, that Griffin must
end, as well as begin, with a substantial and disturbing realm of indeterminacy. 58

V. Cohen on the Independence of Ultimate Principles from Facts

The late G.A. Cohen's emphasis is partly on the manipulability and the
limited scope, within each society and beyond each individual society, of John



53. Id. at 45.

54. See id. at 149.

55. See id. at 37-39, 44.

56. See id. at 4.

5 7 . See, e.g. , The Is/Ought Question: A Collection of Papers on the Central Problem
in Moral Philosophy (W.D. Hudson ed., 1969); W.D. Falk, Hume on Is and Ought, 6 Can. J.
Phil. 359 (1976). Reference to "thick" concepts such as interests or pain does not resolve the
relevant debates. See also G.A. COHEN, RESCUING JUSTICE AND EQUALITY 248-50 (Harvard Univ.
Press 2008).

58. See Griffin, On Human Rights, supra note 48, at 128 ("[A]t a fairly early point in
assessing policies such as 'Don't deliberately kill the innocent[,]' we reach a point where we can
no longer tell that one policy is better than another.").



434 INDIANA LAW REVIEW [Vol. 43 :423



Rawls's famous "difference principle." 59 Cohen's "luck egalitarianism"
challenges what is sometimes thought of a natural, unproblematic, or deserved
inegalitarian distribution of crucial economic assets, including one's scarce
talents, that can be manipulated for selfish economic advantage. 60

Cohen's interests, however, are broad, and subtly articulated. 61 Our focus
herein is on merely one claim that is fundamental to moral theory in general and
human rights theory in particular. Specifically, Cohen argues that the most basic
normative or moral principles cannot be justified by an appeal to any ordinary
facts or circumstances, even on a broad understanding of what counts as
"facts." 62 We consider this issue not in order to try to resolve it, but to again
illustrate the increasing range of uncertainties underlying the very idea of human
rights.

In this respect, Cohen asks us to start with any principle we might choose
that is thought to be justified only when certain facts or circumstances hold, but
not otherwise. But we can then ask why this is so. Some further principle must
be invoked to explain why the earlier principle is justified only under certain
factual circumstances. And the second, explanatory principle may admittedly
also be based in part on certain facts. But eventually, Cohen thinks, our line of
justification must reach some ultimate normative principle that is independent of
and does not rely for its justification on any non-normative facts. 63

Cohen recognizes that many of us think that even the most general human
rights principles must in some way reflect or be sensitive to some basic facts. 64
This is certainly not to accept the factual status quo, entrenched power
relationships, or privileges that may be widely taken for granted. Instead Cohen
argues that "a principle can reflect or respond to a fact only because it is also a



59. Rawls' difference principle, a secondary element of his theory of justice, requires, at the
level of the "basic structure" of society, that inequalities in basic goods including income be
arranged so that any inequalities maximize the absolute stock of such goods available to the worst-
off persons in that society. See JOHN Rawls, A THEORY OF Justice 76 (1971). For an earlier
critique of the difference principle as variously insufficiently-egalitarian, see R. George Wright, The
High Cost of Rawls ' Inegalitarianism, 30 W. POL. Q. 73 (1977). See also JOHN RAWLS, The LAW
of Peoples 116, 158-59 (1999).

60. See Cohen, supra note 57, at 7-8. For discussion, see, for example, Kok-Chor Tan, A
Defense of Luck Egalitarianism, 105 J. PHIL. 665 (2008), as well as the contributions of Richard
J. Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD. 77 (1989) and Richard
J. Arneson, Justice Is Not Equality, in JUSTICE, EQUALITY AND CONSTRUCTIVISM: ESSAYS ON G. A.
Cohen's Rescuing Justice and Equality 5 (Brian Feltham ed., 2009).

6 1 . See, for example, the particular reflections in G. A. Cohen, If You're an Egalitarian,
How Come You're So Rich? 120 (2000).

62. See COHEN, supra note 57, at 229-73; Thomas Pogge, Cohen to the Rescue!, in JUSTICE,
Equality and Constructivism, supra note 60, at 88-109; see also Jon Mandle, Book Review,
Notre Dame Phil. Rev. available at http://ndpr.nd.edu/review.cfm?id=16945; Ingrid Robeyns,
Review, 120 ETHICS 156 (2009).

63. See COHEN, supra note 57, at 232, 237, 291; Pogge, supra note 62, at 103.

64. See COHEN, supra note 57, at 23 1 .



2010] REVIEW ESSAY 435



response to a [further or deeper] principle that is not a response to a fact." 65

This does not seem to be true of all principles outside of morality and human
rights. Suppose we keep pressing someone as to why they are mowing someone
else's lawn. They respond that money is involved, and then the consumption of
ice cream, with due concerns for cost and health. Finally we are reduced to
asking the person, who as a matter of subjective taste prefers chocolate, why they
have on this occasion chosen chocolate. If the person at this stage has not run out
of (non-moral) principles, he or she might say that under these (or relevantly
similar) circumstances, one can reasonably indulge one's strongest current
subjective taste in ice cream.

But even this principle implicitly includes reference to facts and
circumstances, including distinguishing flavors, aromas, consistencies, and
illustrating that taste can cause pleasure, and in different degrees. One need not,
thankfully, rely on some sort of idea of betterness-of-chocolate that holds under
all imaginable circumstances.

These relevant facts about persons, tastes, and pleasures could have been
different, in which case whatever (non-moral) principles we might have held
would likely require modification. And it is hard to see how shifting the focus
to human rights principle removes the ultimate dependence of the most basic
human rights principles on general facts and circumstances.

Human rights principles, even at some ultimate level, seem to depend for
their normative force, and even for their meaning, on various sorts of facts
regarding scarcity, limitations of resources, human vulnerabilities and
insufficiencies, the need for cooperation and communication for certain tasks,
varying levels of human interests and aspirations, and so on. The morality and
law of human rights, even at the most basic level, would look different if these
basic facts and circumstances were different.

Now, it may be possible to aggregate any of the above basic principles, along
with all the relevant facts and circumstances, into one grand — if realistically
unusable — principle, and then assert that this inarticulable compound normative
principle, incorporating all the relevant facts, is itself not dependent upon any
further, yet unassimilated facts. But one would then be left to wonder about the
significance, in theory or practice, of the meaningfulness of an inexpressible,
pages-long principle.

But if Cohen is even arguably right about an obviously important matter
here, 66 we have yet another example of the increasing fragmentation and
controversiality of the very idea of human rights.

VI. Sandel, Responsibility, and the Ghosts of Metaphysics
Michael J. Sandel 's popular course-based book on justice is already



65. Id. at 232 (emphasis omitted).

66. The relevant idea of sensitivity of a principle to facts may be ambiguous. See Pogge,
supra note 62, at 93.



436 INDIANA LAW REVIEW [Vol. 43:423



something of an academic phenomenon, spawning its own website, 67 Facebook
page, 68 PBS television series, 69 and a Today show promotion "sandwiched
between a cooking demonstration and a segment on a turtle named Lucky." 70
The book's primary emphasis is on substantive or normative ethics, 71 with only
modest attention paid explicitly to the theory of human rights, or to metaethical
issues in general. We can, however, briefly note Sander s discussion of
utilitarianism, and its implications for human rights, and conclude with a bit of
speculation about more metaphysical matters.

It has, of late, been argued that a focus on welfare or utility offers theoretical
and practical advantages over a continuing focus on human rights. 72 Sandel
points to some standard critical responses to relying on utilitarianism. Only
contingency, or chance, links maximizing utility, even over the long run, and the
basic rights of innocent victims. 73 However we think of utility or welfare
maximization, 74 there can be no guarantee — in the sense that an absolutist 75
human rights norm provides a theoretical guarantee — against any authorized
violation of evidently basic rights. In contrast, it is also possible that forms of
utilitarianism that do not explicitly refer to human rights might, in practice, wind
up protecting human rights more effectively than any explicit regime of human



67. Harvard University's Justice with Michael Sandel, http://justiceharvard.org/ (last visited
Oct. 2, 2009).

68. Readily befriendable under the search query Michael Sandel on Justice.

69. See Patricia Cohen, Morals Class Is Starting: Please Pass the Popcorn, N.Y. TIMES,
Sept. 26, 2009, at CI.

70. Id.

71. In general, asking students to evaluate the moral behavior, say of actors in an economic
market, before studying the perhaps less superficially interesting theory and operation of regulated
and unregulated markets, carries some predictable risks.

72. See Posner, supra note 2. For general commentary on utilitarianism with human rights
implications, see sources cited supra notes 25-27. Classically, see the debate between J. J.C. Smart
& Bernard Williams, Utilitarianism: For and Against ( 1 973). While we cannot summarily
critique Eric Posner' s approach, supra, the advantages claimed for focusing on well-being rather
than on human rights are unclear. For one thing, the two concepts typically overlap, and human
rights still, as of now, carries more evocative and motivational force as rhetoric. There is also likely
to be a tradeoff between the verifiability of compliance with welfare norms and the claimed fairness
or feasibility of compliance. It is just as easy to blame outsider misconduct and unfairness for
internal economic performance as for internal human rights violations. Also, some human rights
theories allow for defeasibility and for practicalities and tradeoffs. See Griffin, On Human
Rights, supra note 48. The popularity of enforceable human rights as well as welfare norms
largely depends on the level of generality at which each is formulated. But all of this may be fairly
debated.

73 . See Michael J. Sandel, Justice: What's the Right Thing to Do? 50-5 1 (2009).

74. See Lyons, supra note 25.

75 . For a debate over moral absolutism, see Patrick Hawley, Moral Absolutism Defended, 1 05
J. PHIL. 273 (2008); Frank Jackson & Michael Smith, Absolutist Moral Theories and Uncertainty,
103 J.Phil. 267(2006).



2010] REVIEW ESSAY 437



rights. 76

As hazy as these considerations may be, Sandel leaves us with much to think
about, little ultimate clarity, in the area of the metaphysics of ethics and of human
rights. Consider Sandel' s earlier book on ethics and biotechnology. 77 There,
Sandel argues that "eugenics and genetic engineering . . . represent the one-sided
triumph of willfulness over giftedness, of dominion over reverence, of molding
over beholding," 78 and a loss of "our sense of giftedness[.]" 79 This is a
fascinating and academically unusual language. Sandel immediately argues that
these concerns need not be accounted for in religious terms; 80 they can apparently
have a sufficient, independent, and self-standing "secular" justification as well. 81

Sandel rightly points out that the loss of a "sense of giftedness" — imagine a
future child as a genetically custom-designed consumer product — implicates
"humility, responsibility, and solidarity," 82 and thus potentially the scope and
meaning of human rights. 83 For our purposes, we should point out that familiar
theories of human rights depend, ultimately, on our beliefs about human
responsibility falling within only a narrow "middle" portion of the much broader
possible range of beliefs about human responsibility. Persons must bear neither
too little, nor too much, responsibility for a viable and full human rights regime.
Let us briefly explore this idea.

At both extremes of the idea of responsibility, the logic and motivation of at
least some human rights must eventually dissolve. This is true even if we
continue to use the same human rights terminology, evacuated of its traditional
meaning. If, toward one end of the spectrum, we adopt a materialist view of the
world, confined largely to some combination of determinism and randomness, we
may continue to use the terminology of responsibility and human rights, but those
ideas would eventually become a corsage, rather than a living, rooted plant. 84



76. This possibility would mirror the idea that we may not best achieve happiness, or
maximize utility, by consciously and explicitly aiming at happiness or a utility maximization.

77. Michael J. Sandel, The Case Against Perfection: Ethics in the Age of Genetic
Engineering (2007) [hereinafter Sandel, The Case Against Perfection]; see also Michael J.
Sandel, The Case Against Perfection, ATLANTIC, Apr. 2004, available at http://www.theatlantic.
com/ doc/200404/sandel.

78. See the book version of Sandel, The Case Against Perfection, supra note 77, at 85.

79. Id.

80. Id. at 85-86.

81. See id. at 86.

82. Mat 85-86.

83. For some background speculation, see R. George Wright, Personhood 2.0: Enhanced
and Unenhanced Persons and the Equal Protection of the Laws, 23 QUINNIPIAC L. Rev. 1047
(2005).

84. Of course, some persons and groups may continue to have various self-interested reasons
for continuing to talk of human rights. For a dramatic formulation of contemporary materialism,
consider: "[a] few years ago, Stephen Hawking summed up scientists' prevailing attitude toward
the status of life in the universe. 'The human race is just a chemical scum on a moderate-sized
planet.'" Paul Da vies, Cosmic Jackpot: Why Our Universe Is Just Right For Life 222 (2007)



438 INDIANA LAW REVIEW [Vol. 43 :423



Too little meaningful responsibility and related ideas, and the meaning and
motivational force of human rights must eventually wither.

But consider the other end of the range of possibilities about responsibility.
If the scope of the genuine freedom, autonomy, and control 85 of persons really
expands beyond a certain point, each of us becomes largely responsible for our
own outcomes, given the risks we have genuinely freely chosen to run. Thus, as
our personal and group responsibility expands, the logic and motivation for those
human rights focused on solidarity, fraternity, and material equality of outcome
would tend to dissolve. 86

What is left unclear is why Sandel would regret the loss of solidarity — the
pharmacology of minimizing the pains of empathy should by then be well-
developed — if genuine freedom, autonomy, and personal control really do
expand along with our personal responsibility. Is Sandel' s regret mainly a matter
of a fear that we will sometimes mistakenly find personal responsibility where
none really exists? Or is this mainly just a matter of empathy, of compassion for
human weakness, suffering, or regretted outcomes, however genuinely freely and
responsibly bad outcomes were risked? We may certainly share such a response,
but compassion for freely and responsibly risked disappointments hardly seems
an adequate basis for a responsive human right.

Ultimately, Sandel' s thinking, along with that of the preceding authors
reviewed, each in their diverse ways, inadvertently illustrates the fragility,
fragmentation, and continuing disintegration of the contemporary idea of human
rights.

VII. Charles R. Beitz's Practice-Oriented Approach to
the Idea of Human Rights

Charles R. Beitz has been reflecting on the theory and practice of human
rights for some time. 87 Professor Beitz begins with the observation that the
increasing prominence of the idea of human rights has not made "any more clear
what kinds of objects human rights are supposed to be." 88 Briefly, Beitz's main
thesis is that "human rights" is "not so much an abstract normative idea as an
emergent political practice." 89



(quoting David Deutsch, The Fabric of Reality 1 77-78 ( 1 997)). For an introduction to some
contending views on free will and responsibility, see John Martin Fischer et al., Four Views
on Free Will (2007).

85. No doubt freedom, autonomy, and control could easily be counted as human rights
themselves, but it is at best unclear that they exhaust the scope of all recognized human rights.

86. Most clearly, "luck egalitarianism" no longer asks much if the only (bad) luck we
encounter is the result of risks we have genuinely freely chosen to run. See sources cited supra note
60. For some complications, see Wright, supra note 83.

87. For one brief prior account, now revised and expanded, see Charles Beitz, What Human
Rights Mean, 132 DAEDALUS 36 (2003).

88. Charles R. Beitz, The Idea of Human Rights, at xi (2009).

89. Id. at xii.



2010] REVIEW ESSAY 439



The gist of his position is that we should look primarily to international
practice and to function rather than looking to the broad family of natural rights
or natural law theories for basic normative and conceptual guidance. 90 A bit
more elaborately, Beitz focuses on the developing, maturing, critiquable, partly
controversial global discourse and practice of human rights, with its various
actors, levels, stages, and other complications, and with an eye toward the
presumably most-persuasive interpretations of those various interests we deem,
perhaps from beneficence, to be most valuable and important. 91

Professor Beitz thus rejects a "foundationalist" approach: "[H]uman rights
need not be interpreted as deriving their authority from a single [or plural,
actually], more basic value or interest such as those of human dignity,
personhood, or membership." 92 Such approaches are said to be inevitably
misleading as to the grounds, scope, and implementation of human rights. 93

One problem with this critical claim is that the vast range and diversity of the
evolving natural right and natural law, or other foundationalist approaches to
what we now call human rights must almost guarantee for most critiques will be
largely true of some such approaches, partly true of others, and almost entirely
untrue of yet others. For example, far from deferring to the propertied classes
mainstream doctrines from the Middle Ages through Immanuel Kant can be hair-
raisingly bold in their direct redistributive and legal implications compared to
today's standards. 94

The continuing role of the broad family of natural right and natural law
approaches to human rights is subject to reasonable contest. Certainly, the 1948
Universal Declaration of Human Rights itself makes only briefly stated,
unelaborated metaphysical commitments as to the nature of human rights. 95 But
this hardly reflects a consensus post-metaphysical turn among the delegates.
Rather, the breadth and variety of metaphysical and political commitments
among the delegates naturally suggested an attempt to set aside as much as
possible the question of the nature and justification of human rights, for the sake
of a consensus document.

But this lack of consensus, again, can hardly guarantee that individual and
collective human rights actors need not depend today, and in the future, on their
residual, or even abandoned, metaphysical commitments. Some sort of
metaphysics may be necessary for meaningful normative guidance of the practice



90. See id. at 7-9.

91. See id. at 7-12.

92. Id. at 128.

93. See id. at 51.

94. See, e.g., Thomas Aquinas, Summa Theologica II-II, question 66, art. 7, respondio
(Fathers of the English Dominican Province trans., 2d rev. ed. 1920) (Kevin Knight online ed.
2008), available at http://www.newadvent.org/summa/306607.htm); see also ST. BONA VENTURE,
The Life of St. Francis, in THE SOUL'S JOURNEY INTO GOD, THE TREE OF LIFE, THE LIFE OF St.
Francis 177, 254 (Ewert Cousins trans., Paulist Press ed. 1978) (1263); Immanuel Kant,
Education �� 98, at 105 (Annette Churton trans., Univ. Michigan Press 1964) (1803).

95. See BEITZ, supra note 88, at 8.



440 INDIANA LAW REVIEW [Vol. 43 :423



of human rights. In the long run, metaphysics — the deeper "why" questions and
their answers — may also be necessary to motivate the sacrifices sometimes called
for by human rights, as human rights are commonly understood. In the end,
whether which we can develop a worthy and sustainable international and global
system of human rights by foregrounding practice and backgrounding, or even
setting aside, the broad evolving family of natural rights and natural law theories
is yet another unresolved matter of increasing contest and controversy. 96



96. For a further recent discussion of a more political, as opposed to natural rights-oriented
approach to human rights, see Kenneth Baynes, Toward a Political Conception of Human Rights,
35 Phil. & Soc. Criticism 371 (2009).



Indiana Law Review

Volume 43 2010 Number 2



PANEL DISCUSSION TRANSCRIPT



Honoring the Legacies of
Justice William J. Brennan, Jr.,
and Justice Thurgood Marshall

A Panel Discussion Presented by the

Indianapolis Lawyer Chapter of the

American Constitution Society



Gavin M. Rose
Jess Reagan**
Dino L. Pollock*



Preface

When the Honorable Thurgood Marshall was asked in 1987 to reflect on the
200th anniversary of the U.S. Constitution, he did so not with the blind patriotism
that might be expected of a man who had spent the greatest portion of his life
celebrating the document's intricacies but with a "sensitive understanding of the
Constitution's inherent defects." 1 The founders of our nation, after all, penned
the most important stanzas of our Constitution in a world in which slavery still
existed, one in which it could not have been imagined that a woman would one
day sit together with an African American on our highest Bench. The "true
miracle" that Justice Marshall saw fit to idolize, "was not the birth of the
Constitution, but its life, a life nurtured through two turbulent centuries of our



* J.D., 2006, Indiana University Maurer School of Law — Bloomington; B.A., 2002,
University of California, Davis; Staff Attorney, ACLU of Indiana, 2006 to present; Co-President,
American Constitution Society — Indianapolis Lawyer Chapter, 2008 to present.

** J.D., 2007, Indiana University Maurer School of Law — Bloomington; B.A., Murray State
University; Co-President, American Constitution Society — Indianapolis Lawyer Chapter, 2008 to
present.

*** J.D., 2008, Valparaiso University School of Law; M.S., 2001, University of Illinois at
Urbana-Champaign; A.B., 1999, University of Illinois at Urbana-Champaign; Judicial Law Clerk
to the Hon. Robert D. Rucker, Indiana Supreme Court, 2008 to 2010; Board-member, American
Constitution Society — Indianapolis Lawyer Chapter, 2008 to present.

1 . Thurgood Marshall, Commentary, Reflections on the Bicentennial of the United States
Constitution, 101 Harv. L. Rev. 1, 5 (1987).



442 INDIANA LAW REVIEW [Vol. 43 :44 1



own making, and a life embodying much good fortune that was not." 2 Two years
earlier, the Honorable William Brennan, Jr., had articulated precisely the judicial
philosophy that gave birth to Justice Marshall's "miracle": "[T]he genius of the
Constitution," said Justice Brennan, "rests not in any static meaning it might have
had in a world that is dead and gone, but in the adaptability of its great principles
to cope with current problems and current needs." 3

It is this philosophy that has guided progressive thought — both judicial and
extra-judicial — through more than half a century, and one that has seen no greater
standard-bearers than Justices Brennan and Marshall. The span of thirty-five
years from Justice Brennan' s confirmation to Justice Marshall's retirement saw
nearly unimaginable strides taken in the areas of voting rights, 4 procedural due
process, 5 equal protection, 6 free speech, 7 and criminal procedure. 8 This era saw
the declaration of the unconstitutionality of a prohibition on the distribution of
contraceptives, 9 the recognition of a constitutional right to abortion, 10 and a four-
year hiatus on executions in the United States. 11 It saw, above all, a revitalization
in the ability of law to mirror social and political progress.

In a partial dissent written well into his tenure on the Court, Justice Marshall
(joined, of course, by Justice Brennan) penned words that would encapsulate this
dramatic — and unprecedented — expansion of rights. "Courts," he wrote,

do not sit or act in a social vacuum. Moral philosophers may debate
whether certain inequalities are absolute wrongs, but history makes clear
that constitutional principles of equality, like constitutional principles of
liberty, property, and due process, evolve over time; what once was a
"natural" and "self-evident" ordering later comes to be seen as an



2. Id.

3. Byron R. White, Tribute, Tribute to Honorable William J. Brennan, Jr., 100 YALE L.J.
1113,1116(1991).

4. See, e.g., Thornburg v. Gingles, 478 U.S. 30 ( 1 986); South Carolina v. Katzenbach, 383
U.S. 301 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962).

5. See, e.g., Vitekv. Jones, 445 U.S. 480(1980); Mathews v. Eldridge, 424 U.S. 319(1976);
Bell v. Burson, 402 U.S. 535 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970).

6. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); Regents of the
Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Craig v. Boren, 429 U.S. 190 (1976); Jackson v.
Indiana, 406 U.S. 715 (1972); Reed v. Reed, 404 U.S. 71 (1971); Graham v. Richardson, 403 U.S.
365 (1971); Loving v. Virginia, 388 U.S. 1 (1967).

7. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); Dombrowski v. Pfister, 380 U.S. 489
(1965); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); Roth v. United States, 354 U.S. 476
(1957).

8. See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986); Terry v. Ohio, 392 U.S. 1 (1968);
Miranda v. Arizona, 384 U.S. 436 (1966); Gideon v. Wainwright, 372 U.S. 335 (1963); Mapp v.
Ohio, 367 U.S. 643(1961).

9. See Griswold v. Connecticut, 381 U.S. 479 (1965).

10. See Roe v. Wade, 410 U.S. 113 (1973).

11. See Furman v. Georgia, 408 U.S. 238 (1972).



20 1 0] HONORING THE LEGACIES 443



artificial and invidious constraint on human potential and freedom.
Shirting cultural, political, and social patterns at times come to make past
practices appear inconsistent with fundamental principles upon which
American society rests. 12

Thus, although — in the words of Justice Brennan — the safeguards enshrined in
the Bill of Rights "are deeply etched in the foundations of America's freedoms," 13
these safeguards are rendered altogether meaningless if they are not valued,
guarded, and occasionally expanded. Over the course of our nation's history, few
have acted as such staunch guardians as have these two giants of U.S.
jurisprudence.

On February 23, 2010, the Indianapolis Lawyer Chapter of the American
Constitution Society was proud to present a discussion on the legacies of Justices
Brennan and Marshall and the future of the Court. We are indebted first and
foremost to the Indiana Supreme Court and Chief Justice Randall T. Shepard for
graciously opening its doors to this discussion and for playing the role of host.
We wish to also express our gratitude to each of the panelists for their insights,
their stories, and their overwhelming eagerness to participate in this discussion.
We therefore thank each of our outstanding panelists for their invaluable
contributions: Justice Theodore R. Boehm; Professor Geoffrey R. Stone;
Professor Mark V. Tushnet; and our superb moderator, Professor Rosalie Berger
Levinson, who set the table for a robust discussion. Each panelist served with
distinction as a law clerk on the U.S. Supreme Court, and we owe them each an
additional debt of gratitude for the roles they have played in helping to shape our
constitutional jurisprudence. We would also like to thank the Indianapolis law
firms of Baker & Daniels LLP and Bose McKinney & Evans LLP for their
generous donations in support of this program. Finally, we wish to thank both the
Indiana University — Indianapolis Law School Chapter of the American
Constitution Society and the Indiana Law Review, for assistance in preparing and
organizing this discussion and for agreeing to publish its contents, respectively.

Five years before his retirement, Justice Brennan commented that a judge
should proceed with "a sparkling vision of the supremacy of the human dignity
of every individual," 14 and it is with respect for this spirit in mind that we hope
to do our part to honor the legacies of two of our nation's greatest jurists.



12. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 466 (1985) (Marshall, J., joined
by Brennan & Blackmun, JJ., concurring in the judgment in part and dissenting in part) (internal
citations omitted).

13. William J. Brennan, Jr., 77*6? Bill of Rights and the States, 36 N.Y.U. L. REV. 761, 776
(1961).

14. White, supra note 3, at 1116 (citing a 1985 lecture by Justice Brennan at Georgetown
University).



444 INDIANA LAW REVIEW [Vol. 43 :44 1



Panel Discussion 15

Date: February 23, 2010

Location: Courtroom of the Supreme Court of Indiana

Panelists:

Professor Rosalie Berger Levinson, Moderator, Phyllis and Richard
Duesenberg Professor of Law, Valparaiso University School of Law

Professor Mark V. Tushnet, William Nelson Cromwell Professor of Law,
Harvard Law School

Professor Geoffrey R. Stone, Edward H. Levi Distinguished Service
Professor, University of Chicago Law School

The Honorable Theodore R. Boehm, Associate Justice, Indiana Supreme
Court

Professor Levinson:

There has been much discussion recently about what the role of the Supreme
Court should be in interpreting the Constitution. The Heller case, 16 which gave
new meaning to the Second Amendment right to bear arms, reinvigorated the
battle between those who espouse an originalist interpretation with its various
permutations — looking to the intent of the Framers of the Constitution, the intent
of those who ratified it, or "the public meaning," — and those who espouse the
"living Constitution." Let me quote Justice Brennan's description: "The genius
of the Constitution rests not in any static meaning it may have had in a world that
is dead and gone, but in the adaptability of its great principles to cope with
current problems and present needs." 17

It is clear that Justice Brennan, as well as Justice Marshall and Justice
Warren, endorsed the living Constitution, or what Professor Michael Dorf at
Cornell calls "aspirational constitutionalism" 18 — die notion that those who framed
the original text understood that the open-ended values set forth in our
Constitution would not be realized at the time of its adoption. This would be left
to later generations, and the Justices who interpret the document should be guided
by this understanding. Indeed, Justice Brennan referred to the Constitution as the
"lodestar of our aspirations." 19



1 5 . This transcript has been edited for clarity and brevity's sake. The original transcript was
transcribed by ClearPoint Legal, Indianapolis, Indiana.

16. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

17. Reason & Passion: Justice Brennan's Enduring Influence 18 (E. Joshua
Rosenkranz & Bernard Schwartz eds., 1997).

1 8. Michael C. Dorf, The Aspirational Constitution, 11 Geo. Wash. L. Rev. 163 1 (2009).

19. Justice William J. Brennan, Jr., Associate Justice, U.S. Supreme Court, Address to the
Text and Teaching Symposium, Georgetown University (Oct. 12, 1985), available at http://www.



20 1 0] HONORING THE LEGACIES 445



Justice Marshall shared this aspirational vision. Thurgood Marshall, first as
an advocate for twenty-five years for the NAACP and later as a Justice, truly
framed the constitutional right to racial equality — a right that most of the Framers
likely never envisioned as barring de jure segregation, white primaries, or racially
restricted covenants. Of course, advocate Marshall was assisted in achieving the
goal of equal educational opportunity by Chief Justice Earl Warren, who penned
the famous Brown v. Board of Education 20 decision, and later Justice Brennan,
whose decisions helped implement the desegregation mandate.

In the same way, Justice Brennan assisted advocate Ruth Bader Ginsburg in
framing the constitutional right to gender equality — again, a right that was not
envisioned by the Framers, who would have been surprised to know that the
Equal Protection Clause prohibited sex bias. Ruth Bader Ginsburg as advocate
and Justice Brennan as author of key decisions in the 1 970s, were the real framers
of the constitutional right to gender equality, just as the true framers of the right
to racial equality were Thurgood Marshall, as an advocate and later as Justice, as
well as Earl Warren. As Professor Dorf put it, "the success of the civil rights
movement in the twentieth century . . . was [really] a jurisgenerative
accomplishment." 21 And the Justices we honor today were at the center of that
movement.

Justice Marshall served on the Supreme Court from 1967 to 1991, and he
began his aspirational work as an advocate back in the 1930s. Justice Brennan
served on the Supreme Court for thirty-four years, from 1956 to 1990, a time
spanning eight Presidencies. He authored over 1500 decisions. Rather than
examining all 1500, 1 will just focus on some key decisions handed down when
our guest speakers were clerking for their justices.

During the 1972-73 Term when Professor Tushnet and Professor Stone
served as law clerks, Justice Brennan authored the plurality opinion in Frontiero
v. Richardson, 22 asserting for the first time that strict scrutiny should be the
standard for judging the validity of laws that classified based on gender. He
never got the fifth vote for strict scrutiny, but he clearly was instrumental in
moving the Court towards recognizing, as Justice Ginsburg put it, that "our living
Constitution obligates government to respect women and men as persons of equal
stature and dignity." 23

A second Brennan opinion that Term, perhaps less well known, invalidated
an amendment to the Federal Food Stamp Program, which denied benefits to
households with unrelated occupants. 24 Congress wanted to ensure that hippie
communes would not receive food stamps. 25 Justice Brennan announced the core



teachingamericanhi story, org/library/index. asp?document=2 342 .

20. 347 U.S. 483 (1954).

2 1 . Dorf, supra note 1 8, at 1 648.

22. 411 U.S. 677 (1973) (plurality opinion).

23. Ruth Bader Ginsburg, Closing Remarks for Symposium on "Justice Brennan and the
Living Constitution, " 95 Cal. L. Rev. 2217, 2219 (2007).

24. U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973).

25. Id at 534.



446 INDIANA LAW REVIEW [Vol. 43 :44 1



principle that the Equal Protection Clause must mean, at minimum, that, "a bare
congressional desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest." 26 It was this language that was invoked thirty
years later by Justice Kennedy to strike down the Texas sodomy law. 27

During this same eventful Term, the Supreme Court handed down the
extremely controversial decision in Roe v. Wade 1% on abortion, and in San
Antonio Independent School District v. Rodriguez? 9 it sustained local property
taxes as a means to finance public education, despite the gross disparities in
educational opportunity that this produced — triggering a vigorous and poignant
dissent by Justice Marshall. 30

Finally, when Theodore Boehm was clerking for Chief Justice Warren during
the 1963-64 Term, the Chief Justice authored the opinion in New York Times Co.
v. Sullivan? 1 providing significant protection for the press from libel actions
brought by government officials, and Reynolds v. Sims? 2 declaring the "one
person, one vote" 33 principle, which completely altered the face of democracy in
this country.

Obviously, we have much to discuss this afternoon. I want to begin by
briefly introducing our three extraordinarily accomplished panelists.

To my far left, Justice Theodore Boehm, 34 who has served on the Indiana
Supreme Court since 1996. He graduated magna cum laude from Harvard, where
he served as an editor of the Harvard Law Review, and then assumed the position
as law clerk to Chief Justice Earl Warren during the 1963 Term. After that, he
worked for Baker & Daniels, becoming a partner in 1970 and managing partner
in 1 980. He worked also for General Electric and the Eli Lilly Company. Today,
he serves on numerous boards and commissions. And, Justice, we are very
fortunate to have you as a member of our Supreme Court.

Geoffrey Stone 35 has been a member of the University of Chicago Law
School's faculty since 1973. He served both as Dean of the Law School and
Provost of the University of Chicago. After law school, he clerked for Judge
Skelly Wright of the District of Columbia Court of Appeals before assuming his
position with Justice Brennan. He has written numerous books and articles in the
area of constitutional law, and has received several national book awards. In
2006, he helped organize and participate in a symposium honoring the legacy of



26. Id.

27. Lawrence v. Texas, 539 U.S. 558, 582 (2003) (quoting Moreno, 413 U.S. at 534).

28. 410 U.S. 113(1973).

29. 411 U.S. 1 (1973).

30. Id. at 70 (Marshall, J., dissenting).

31. 376 U.S. 254(1964).

32. 377 U.S. 533(1964).

33. Id. at 587 (Clark., J., concurring) (citing Gray v. Sanders, 312 U.S. 368, 381 (1963)).

34. Indiana Supreme Court Justice Biographies: Justice Theodore R. Boehm, http://www.in.
gov/judiciary/suupreme/bios/boehm.html (last visited Mar. 1 1, 2010).

35. Geoffrey R. Stone/University of Chicago Law School, http://www.law.uchicago.edu/
faculty/stone-g/ (last visited Mar. 1 1, 2010).



20 1 0] HONORING THE LEGACIES 447



Justice Brennan, sponsored by the Brennan Center for Justice, an organization
founded by former law clerks to continue the wonderful work of the Justice.
Among Professor Stone's many public activities, he is a member of the National
Board of Directors of the American Constitution Society, our host, as well as a
member of the National Advisory Council of the ACLU.

Mark Tushnet has been a law professor at Harvard Law School since 2006,
following lengthy stints at the University of Wisconsin Law School and at
Georgetown, where he served as Associate Dean. He clerked for Thurgood
Marshall during the 1972 Term, while Professor Stone clerked for Justice
Brennan. The two professors also co-author, with a few others, one of the leading
constitutional law textbooks. 36 Professor Tushnet specializes in constitutional law
and theory. He has written extensively regarding the practice of judicial review,
both in this country and around the world. He has authored numerous articles and
books on constitutional law, constitutional history and judicial review, and has
won several book awards. One of these books, Making Civil Rights Law, 31 traces
the life of Thurgood Marshall and his work before the Supreme Court from 1936
to 1961.

In short, our panelists are eminently qualified to speak on today's topic. We
will begin by giving each a few minutes to make an "opening statement" about
their Justice.

Professor Tushnet:

Thank you.

I'm happy to be here and really glad that the ACS lawyer chapter here is
sponsoring this event. Justice Marshall was a great storyteller. I'm not such a
good storyteller, but I am going to try to tell four stories about Justice Marshall,
or stories that he told. Justice Marshall's stories always had a point, and I've
chosen stories that I think also have a point.

The stories all deal with Marshall when he was a lawyer. The first is this: He
regularly took the subway from his office in midtown Manhattan to his apartment
at the best address in Harlem. He would get out of the subway and walk along
the street, greeted by the gamblers on the corner and the various, as he would put
it, "low-lifes," who would joke with him by asking, "What have you done for us
today, Lawyer Marshall." He would talk with them, and then he would go to his
apartment and entertain Duke Ellington and the other members of the Harlem
elite in the evening.

The second story is about Marshall taking an application for a stay of
execution in a capital case to Fred Vinson's house, and knocking on the door.
Vinson comes out with his sandals on and shuffles out and invites Marshall in
after Marshall says why he's there. Marshall looks around and notices he's
interrupted Vinson's poker game with Harry Truman and a couple other members
of the administration. And Vinson says, "Sit down, why don't you have a drink
with us?"



36. Geoffrey R. Stone et al., Constitutional Law ( 1 5th ed. 2005).

37. Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the
Supreme Court 1936-1961 (1994).



448 INDIANA LAW REVIEW [Vol. 43 :44 1



The third story is a story Marshall told about a young lawyer — it's not clear
to me that it was him, although he may have wanted to convey that sense — who
was participating in the defense of an African American charged with murder in
the South. The case wraps up, and the jury is sent out to deliberate. And this
young, inexperienced lawyer asks the court clerk, "How long do you think it's
going to take them to render a verdict?" And the court clerk says, 'Twelve
minutes." And the young lawyer says, "Twelve minutes? It's a very complicated
case. It's a capital case. How can it take only twelve minutes?" The clerk says,
"Twelve minutes from now." And the lawyer says, "Okay," and goes back and
sits down. And exactly twelve minutes from that time, the jury comes back in
and renders a verdict of guilty. Afterward the lawyer asked the clerk, "How did
you know?" And the clerk says, "That's how long it takes to smoke a cigar."

The fourth story is my favorite. It's about a talk that Marshall gave at a
tribute to a civil rights lawyer in Philadelphia named Raymond Pace Alexander. 38
The structure of the talk is this: He starts out as speakers do with some joking
remarks, "I'm really happy to be here to be able to honor Raymond Pace
Alexander, even though I had to leave the warm climate in Florida to come up
here to wintery Philadelphia, where it's really cold and unpleasant." He goes on
to talk about Alexander's civil rights practice, how important the work that
Alexander has been doing is, and he ends with an explanation of why he had been
in Florida in the warm climate. The reason was that he was investigating the
assassination of an NAACP leader named Harry Moore, who had been leading
a voter registration campaign in Florida. So, the joke that he starts out with turns
out to have some very serious background.

Those are the four stories. Now, Justice Marshall actually never would tell
you the point of his stories. You were supposed to figure them out yourself. I'm
going to tell you the point of these stories.

Last summer, we heard a lot about the appropriateness of the judicial capacity
for empathy. What these stories are about is the way a person like Justice
Marshall developed empathy across an enormous range of human experience.
One of the parts of the conversation last summer suggested that somehow the
notion of empathy was limiting. But Marshall's empathy was expansive.
Because he could joke with the gamblers and low-lifes in Harlem and then
entertain Duke Ellington, because he had defended capital defendants, and sit
down and have a drink with Fred Vinson. Because he knew about the
assassination of Harry Moore, he could understand why people in Philadelphia
needed to care about civil rights.

Judge Jerome Frank in the 1930s wrote a book in which he described Oliver
Wendell Holmes as the completely adult judge. 39 I don't know whether that's
true of Holmes, but I'm pretty confident that it was true of Justice Marshall. He
was a person who knew who he was, knew what he believed, and was not
uncomfortable with any of those things. He was, as we would now say,



38. The text of the talk can be found in Thurgood Marshall: His Speeches, Writings,
Arguments, Opinions, and Reminiscences 138-44 (Mark V. Tushnet ed\, 2001).

39. Jerome Frank, Law and the Modern Mind 253 (4th ed. 1 935).



20 1 0] HONORING THE LEGACIES 449



comfortable in his skin. But, there's a line that he would use about that skin. He
would say, whenever he woke up, wherever he was in this country, he never had
to look in the mirror to know what race he was. Being adult meant understanding
what it was to be a black man in America, and what it was to be a white person
in America, as well.

Professor Stone:

Justice Brennan was a remarkable person. Part of what made him so
extraordinary was that he was filled with joy. He always had a sparkle in his eye,
a kind word, and a hand on your arm when he spoke with you. He looked you
squarely in the eye, was always sympathetic and supportive, and almost always
generous in his evaluations of others. The three exceptions I can recall were
Joseph McCarthy, Richard Nixon, and Warren Burger. Other than those three,
he was always extremely generous in spirit.

Brennan was a very hard worker. He came into the office every morning
before 7:30, so he could review all of the work his law clerks had left him late the
night before. He met with the clerks every morning for coffee for an hour, during
which time we discussed the cases on the docket, drafts of opinions we had
written, or cert petitions he'd reviewed by himself. He was the only Justice who
read all the cert petitions himself. We also talked about the Vietnam War,
Watergate, and the Washington Redskins. Brennan was a real person. He was
smart, kindhearted, thoughtful, and exuberant.

The '73 Term was difficult for Brennan. It was personally difficult because
his wife was very ill during that time, but also difficult because it was a year of
transition. When he arrived at the Court, during the heyday of the Warren era, he
was a central figure in putting together many of the Court's momentous majority
opinions. Brennan was famous for his ability to forge compromises and round
up the fifth vote. He reveled in that role.

But with the appointment by President Nixon of Rehnquist, Blackmun,
Powell and — who am I forgetting? Burger, yes, of course, Burger. That's
Brennan speaking through me! Forget Burger, right? With that change in the
makeup of the Court, Brennan's role changed. As the center of the Court shifted
significantly to the right, Brennan increasingly found himself in dissent.

Although he later came to relish the role of the dissenter, he certainly wasn't
yet there. At this point, he very much felt personally the defeats in the Court.
These were defeats, he felt, not only for himself, but for the nation. On more than
a few occasions, he came back from conference, sat down with his three law
clerks, and ran through the votes at conference with tears in his eyes. He was
deeply frustrated, and sometimes quite angry, that these Justices were dismantling
some of the achievements of the Warren Court.

Two cases in the 1973 Term illustrate a lot about Brennan. They give a
concrete sense of Brennan's efforts to recruit the often elusive "fifth vote," the
meaning of Brennan's conception of the living Constitution, and the extent to
which Brennan, like all justices and judges, was influenced by his own personal
background and values. For Brennan, I think the central formative experience
concerned his father, who was a labor organizer in New Jersey, and who suffered
oppression and even police beatings in his effort to promote the cause of labor.
I think this helped Brennan develop a healthy skepticism about the government's



450 INDIANA LAW REVIEW [Vol. 43 :44 1



treatment of racial and other minorities, political and religious dissenters, and
other outsiders. I think this shaped his understanding of the Constitution, his role
as a Justice, and his conception of a living Constitution.

So, let me briefly offer two examples. The first were the obscenity cases
decided in 1973, Miller v. California* and Paris Adult Theatre I v. Slaton 41
These cases represented the Court's first comprehensive attempt to revisit the
issue of obscenity since 1957, when Brennan wrote the majority opinion for the
Court in Roth v. United States, 42 holding that obscenity is not protected by the
First Amendment.

By 1973, Brennan had come to the view, as had Justices Marshall, Stewart,
and Douglas, that the challenge of defining obscenity with sufficient clarity to
meet First Amendment standards was simply insurmountable. They therefore
concluded that there needed to be a sharper limitation on the scope of the
doctrine. Brennan concluded that obscenity could not constitutionally be
restricted for consenting adults.

The question was whether Brennan could get the fifth vote he needed to make
this the majority view. As it turned out, Brennan decided that Justice Powell was
his best prospect, and Brennan worked tirelessly on Powell for months leading
up to the oral argument in the case. Powell indicated that he was open to
Brennan' s approach. As he thought about Brennan' s arguments, Powell
suggested that he was inclined in this direction.

Now, the problem was that Powell, a white Southern gentleman, had a vision
of obscenity that consisted of something like Lady Chatterley 's Lover 43 or Tom
Jones. 44 When he went into the Supreme Court's movie theater to see the very
raunchy films that were actually at issue in these cases, he was shocked. As
Brennan later told the story, as he and Powell walked out of the Supreme Court
theater, Powell turned to Brennan and said, "You lose." And so Brennan never
got his fifth vote. In the end, he wrote the lead dissenting opinion. Nonetheless,
this case illustrates the efforts Brennan made to get the fifth vote, the frustration
he felt when he did not succeed, and also his idea of a living Constitution.

Part of the idea of a living Constitution for Brennan was that the Court should
learn with experience. One of the things Brennan learned in the obscenity context
was that the doctrine didn't work very well in practice. Thus, although Brennan
continued to believe, in principle, that obscenity is not protected speech, he also
came to the view that it needed to be more narrowly defined and more limited in
its application, in order to function well in the real world.

The second example is Frontiero v. Richardson 45 which Rosalie already
mentioned. In Frontiero, Brennan took the view that discrimination against
women is in many ways analogous to discrimination against African-Americans



40. 413 U.S. 15(1973).

41. 413 U.S. 49 (1973).

42. 354 U.S. 476(1957).

43. D.H. Lawrence, Lady's Chatterley's Lover (Penguin Books 1994) (1928).

44. Henry Fielding, Tom Jones ( 1 922).

45. 411 U.S. 677(1973).



20 1 0] HONORING THE LEGACIES 45 1



and is therefore presumptively unconstitutional under the Equal Protection
Clause. 46 Brennan reasoned that, even though the Court had never interpreted the
Equal Protection Clause in this way, society had changed so greatly over the
years that our understanding of "equality" must change as well.

In this case, too, Brennan was disappointed in his hope to get a majority to
embrace his view. In conference, the Justices had voted 8-1 to invalidate the law,
but they had voted to do so on the ground that the law was irrational. On further
reflection, Brennan decided that this was an intellectually dishonest position,
because the challenged law was clearly rational under the Court's accepted
doctrine. He therefore argued instead that women constitute a "suspect class" and
that discrimination against women therefore requires strict scrutiny. Justices
Marshall, Douglas, and White promptly joined Brennan' s opinion. And then
there was silence. Months passed. Justices Powell and Stewart, the two members
of the Court most likely to join Brennan 's opinion, both argued that it was unwise
for the Court to reach this issue in light of the fact that the Equal Rights
Amendment was still pending. In the end, they filed separate concurring
opinions, 47 arguing that the law was irrational, and Brennan never got his fifth
vote.

These examples illustrate how Brennan acted out of his conception of a living
Constitution, how he tried to pull together a majority opinion, and by the 1973
Term how frequently he was frustrated in his effort to do so. It was, for Justice
Brennan, a trying year.

Thank you.

Justice Boehm:

Well, I was at the Court almost a decade before my two colleagues and at the
height of what was then perceived to be the Warren Court. You had Mapp v.
Ohio 4 * in 1961 and Gideon v. Wainwrighf 9 in '62. These are still cases that I
expect most lawyers recognize by case name, even those who don't practice
criminal law. And then we ended up with Reynolds v. Sims 50 that I'll talk about
some more later, all of which were viewed as revolutionary decisions at the time.
Most of them were 5-4 decisions. Each of them set a major conflict in place
between structural considerations of federalism and basic questions of human
liberty, and came out in each case essentially on the side of the Equal Protection
Clause 51 and the Due Process Clause, 52 trumping whatever federalism or other
considerations were thought to be in play. But to speak about the Chief, as we all
called him, as a human being, he, too, was a product of his history, which as I
think most of you know, was essentially as a politician. He was an extremely
successful governor of California. Before that he was the attorney general. He



46. U.S. Const, amend. XIV, �� 1.

47. Frontiero, 41 1 U.S. at 691 (Stewart, J., concurring); id. (Powell, J., concurring).

48. 367 U.S. 643(1961).

49. 372 U.S. 335(1963).

50. 377 U.S. 533(1964).

51. U.S. Const, amend. XIV, �� 1.

52. U.S. Const, amend. XIV, �� 1.



452 INDIANA LAW REVIEW [Vol. 43 :44 1



was a baseball fan, a schmoozer, a politician par excellence, and a man of
enormous personal charm and dignity and compassion. I don't know anybody
who didn't like him.

We also had our post-Friday conferences as law clerks with our Justice. I
don't know if every chamber did this, but the drill would be conferences were
always on Friday at that time. And after the conference adjourned, the clerks
would be called in to explain the results.

And occasionally, you'd have a case where the results surprised me. One
example that sticks in my mind today is a case where we had a cert petition from
the Alabama Supreme Court by a man who was the then president of the Alabama
NAACP, who had been arrested by a state trooper in Alabama, and they had
convicted him of — I've forgotten what — disorderly conduct or something. And
I had looked at this case left, right and sideways and concluded that they had
adequate state law grounds for doing everything they'd done, and there really
wasn't anything we could do about this, even though it certainly looked like an
abuse of power. And we come back from conference and the Chief says, "Well,
we've granted cert." I said, "Well, what do you think about that?" And he said,
"They can't do that." That was — and he was right. He was right. All the fancy
Harvard Law Review analysis that I'd come up with reached the wrong result.

And that was based, in the Chiefs view, on his understanding of how the
world really worked. He'd been a governor for three years. He'd dealt with state
legislators. He knew how they operated. More about that later. And he brought
that to the Court in a way that some people might feel is somewhat lacking in
today's jurisprudence where we have a bench that is largely filled with people
with appellate bench credentials and histories that can get you confirmed and
produces a very highly qualified bench, but also has the effect of screening out
people of the broad breadth of background of the Court I dealt with. You had
Tom Clark, and Earl Warren, Justice Brennan, Justice Black, of course, was a
senator.

And, by the way, if you could say there was a dominant figure in the Court
in that day, it would be Black. He was the one who really staked out strong
positions and stiffened the backbone of the other Justices and the majority, as
perceived by me. And I think history has pretty much borne that out.

But the Chief was also a great human being. And he would take us to the
late, not particularly lamented Washington Senators games, and there we'd be in
a box with Sergeant Shriver watching a ball game and just enjoying a ball game.
The other thing he would do is, the drill was we'd all work on Saturday mornings
and then go to lunch at a place called the National Lawyers' Club, which I think
passed away many years ago. At least I haven't heard of it for many years. But
it was on, I think, H Street in Washington, and it was just what you'd expect it to
be, an all male, all lawyers luncheon club. And we'd have lunch for maybe two
or three hours. And those two or three hours would be spent almost exclusively
on sports and politics, hardly ever touching on a matter of law. The Chief loved
to just schmooze on subjects of general interest. And he was very good at it. He
was a charming guy. It was a great experience.

Professor Levinson:

Thanks to all of you for providing wonderful insights into the character of



20 1 0] HONORING THE LEGACIES 453



these three Justices. I guess I would make one observation. Although members
of the Court in the 1960s and '70s may have reflected a better cross section of
experiences, we should remember that there was no woman's voice, no female
Justice until a decade later. But I would like now to zero in on what each of you
believes was the most significant decision that your Justice wrote or dissented
from while you were clerking and/or maybe the most difficult case.

Professor Tushnet:

For me, probably it was the dissent in the Rodriguez school finance case, 53
which I didn't work on. Another one of my co-clerks worked on it as his primary
job for several months. And it was not difficult, it was disappointing because the
judge thought correctly that at some level his career had been built on the notion
that equality with respect to education was the foundation of equal citizenship in
the United States. And here were these kids who, as he saw it, weren't being
treated equally, weren't getting the kind of education that other kids were getting.
The doctrinal issues were tricky, but not insurmountable.

After Rodriguez was handed down, another historian showed Justice Marshall
a draft opinion in Brown v. Board of Education 54 in which Chief Justice Warren
had written that education was a fundamental right in the United States. Warren
revised the opinion and took out that particular phrasing. Marshall said that, if he
had published that, he would have made my job in Rodriguez much easier. And
it was disheartening to him that the majority couldn't see what he thought was so
obvious, that, if there was anything that the United States should be committed
to, it should be equality with respect to education.

Professor Levinson:

May I ask a quick follow-up question on equal educational opportunity? A
year ago, in Parents Involved, 5 * the United States Supreme Court struck down
efforts by two school districts to achieve desegregation by using race as a factor
in assigning students to public schools. In his opinion, Chief Justice Roberts
invoked Brown v. Board of Education to invalidate the plans. 56 Any comments
on that, Mark?

Professor Tushnet:

Well, this is a case that was made for the phrase that, if Justice Marshall were
alive today, he'd be turning over in his grave. The particular quotations that the
Chief Justice used from both Brown and more important from the oral argument
in Brown were accurate, and they were statements about color-blindness and the
impropriety of using race as a basis for assigning kids to schools. That's what
they said. I found it interesting that the quotation is from an oral argument made
by Robert Carter, 57 rather than by Thurgood Marshall. Marshall said the same



53. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 73 (1973) (Marshall, J.,
dissenting).

54. 347 U.S. 483 (1954) (Brown I).

55. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

56. Id. at 746 (citing Brown v. Bd. of Educ. {Brown II), 349 U.S. 294, 300 (1955); Brown I,
347 U.S. at 483).

57. Id. at 747 (citing Transcript of Oral Argument at 7, Brown I, 347 U.S. at 483 (Robert L.



454 INDIANA LAW REVIEW [Vol. 43 :44 1



things when he argued, but the Chief Justice quoted Carter rather than Marshall,
I think, out of a strategic sense. It's one thing to say Robert Carter said this. It
would be an insult to Thurgood Marshall to quote Marshall for this decision.

So, Marshall and Carter did say you can't use race as a basis for assigning
kids to schools. There's no question about that. But they said that in the service
of a larger vision about what racial equality with respect to education was. The
goal was integration, not merely eliminating the use of race as a categorizing
device. And they said that, as well. They said the goal is integration. There are
parts of the Parents Involved decision that are, I think it's fair to say,
disingenuous. This part isn't in particular disingenuous, it's just, again,
extremely disappointing.

Professor Le Vinson:

Thank you. Let's move on to Professor Stone?

Professor Stone:

Certainly the most momentous decision the Court handed down in our Term
was Roe v. Wade. 58 Although Brennan didn't write an opinion in Roe, he played
a major role behind the scenes in helping Blackmun craft an opinion that would
both win the Court and be more persuasive than some of the early drafts that had
been circulated. So, in our chambers, we were very much involved in Roe. The
outcome in Roe was fairly clear from early on, but the way the opinion would be
written, how broad or narrow the decision would be, was very much in doubt.

For Brennan, Roe was an interesting challenge. As the Court's only Catholic
Justice, he clearly felt a personal tension between his religious and moral beliefs
about abortion, on the one hand, and his responsibilities as a Justice in
interpreting the Constitution, on the other. Although Brennan did not often
discuss this with the clerks, we did get a sense of how important it was to him not
to allow his religious beliefs affect his position. But at the same time, he also
wanted to make sure that his desire not to be affected by his religious beliefs did
not lead him to a legal judgment that was not a sound one. It was impressive to
watch the way he worked this through.

The Justices understood, of course, that Roe was an important, difficult, and
controversial decision that would have a substantial effect on society. They also
knew that the decision would have a certain degree of short-term political fallout,
but I don't think anyone within the Court — Justices or law clerks — had the
faintest idea that we'd be today still talking about Roe v. Wade as a fundamental
factor in American politics thirty-seven years later. I don't think any of the
Justices would have predicted that.

The first inkling we got of the depth of the reaction to Roe was from the mail
response to the decision. The Court was inundated with mail, mostly critical.
The boxes were piled up from floor to ceiling in the hallways of the Supreme
Court. The Court had never seen anything quite like this. The only people who
really were interested in going through all this mail were some of the law clerks
who had gone on job interviews and were waiting for their reimbursement checks.



Carter, Dec. 9, 1952)).

58. 410 U.S. 113(1973).



20 1 0] HONORING THE LEGACIES 455



They were the ones who were still there at two in the morning elbow deep in the
boxes trying to find their money.

The two Justices who received the most mail were Blackmun and Brennan,
Blackmun because he authored the opinion, Brennan because he was Catholic.
Most of the letters were from children in parochial schools. They were usually
form-letters accusing the Justices of murdering babies. The tone of many of the
letters was pretty brutal. Brennan and Blackmun had very different responses to
the mail. Brennan' s approach was not to read it. He felt such correspondence
was not relevant to his role as a Justice, so for the most part he just put it aside.

Blackmun, on the other hand, seemed fascinated by these letters. There was
a moment when I saw Blackmun, which I thought was very poignant. Over time
I've come to believe, perhaps unrealistically, that that moment was pivotal in
Blackmun 's evolution as a Justice and as a person. It was late at night, maybe
one or two in the morning, and I was still in the Court working on something or
other. I was dealing with a case with one of Blackmun' s law clerks. I went to
Blackmun' s chambers to see if the clerk was still around. Everyone was gone,
except Blackmun. All the lights were out in Blackmun's chambers, except for a
small green reading light on Blackmun's desk. He was sitting there, almost in the
dark, with his glasses down around his nose and a big pile of these letters on his
desk. He was reading them, one by one. I remember just standing there silently,
watching him, and it struck me as so moving that he was allowing himself to feel
the pain of being the target of such animosity, condemnation, and disapproval.

What I came to believe over time is that it was this experience that changed
Blackmun as a person and that led him to be someone who, like Marshall,
Brennan, and Warren, began to think about the outsiders in society, about what
it felt like to be a dissenter, to be the one who is despised. I think that experience
initiated an important transition in Blackmun's understanding of his
responsibilities as a Justice, and ultimately changed the way he fulfilled his
judicial responsibilities. I believe this capacity for empathy — to use an overused
term these days — made him a better Justice.

Professor Levinson:

Thank you.

As a side note, Professor Stone, I recall that you wrote a piece after the very
controversial Gonzales 59 decision sustaining the federal "partial birth abortion"
statute, in which you noted that all five of the Catholics on the Court were in the
majority, whereas the four non-Catholics joined in the dissent. 60 It was important
to Justice Brennan to keep his religious beliefs separate from his legal opinions.
Professor Stone, isn't it fair to say more broadly that Justice Brennan was a
separationist when it came to the Establishment Clause, 61 while he also authored
Sherbert v. Verner? 2 in which he advocated a very protective interpretation of the



59. Gonzales v. Carhart, 550 U.S. 124 (2007).

60. Posting of Geoffrey Stone to The Faculty Blog, http://uchicagolawtypepad.com/faculty/
2007/04/our_faithbased_.html (Apr. 20, 2007, 15:01).

61. U.S. Const, amend. XIV, �� 1.

62. 374 U.S. 398(1963).



456 INDIANA LAW REVIEW [Vol. 43 :44 1



rights of religious minorities under the Free Exercise Clause. 63

Professor Stone:

Right. Brennan had strong views about religious freedom. I think
"separationist" is the right way to put it. He believed deeply in the separation of
church and state. He also believed deeply in the protection of religious
minorities, as he believed in the protection of any minority group. He therefore
championed the view that laws that had disparate effects on minority religions
must be considered very carefully and merited serious scrutiny.

Now, let me say a word about the piece I wrote about Gonzalez. 64 Six years
before Gonzalez, the Court, in a 5-4 decision, struck down a Nebraska statute
prohibiting partial birth abortions, because the law did not have an exception for
the life or the health of the mother. 65 In Gonzalez, the Court considered a federal
law prohibiting partial birth abortions that also did not include an exception for
the life or the health of the mother. But this time, the Court, in a 5-4 decision,
upheld the law. 66 In my view, the opinion in Gonzalez was completely
disingenuous in its effort to distinguish the earlier decision. The only real
change, as far as I was concerned, was that Justice O'Connor had been replaced
by Justice Alito. 67 O'Connor had been the fifth vote in the first case. 68 Alito was
the fifth vote for the opposite result in Gonzalez. 69

In the op-ed you've referred to, 70 I asked, what is it about this issue that
would drive these Justices to feel such a powerful need to produce so
disingenuous an opinion? Why couldn't they just either follow the clearly
controlling precedent or, if need be, be honest about it and take up the challenge
of directly overruling it (which I didn't think it could justify in any principled
way)?

I noticed that all five Justices in the majority in Gonzalez were Catholic. That
led me to write the piece, wondering whether the religion of the Justices had
affected their conduct. As I've already noted, I do believe that Justices are
affected by their personal experiences and values, and this is true of conservative
Justices as well as of liberals. So I posed the question whether these Justices
might have been unwilling to follow the precedent because they so despised the
idea of partial birth abortion that they just could not "morally" bring themselves
to do so. I contrasted this scenario with how I had seen Justice Brennan struggle
with this challenge in Roe. 11

This piece received much more attention on the Internet than I had



63. U.S. Const, amend. I.

64. Gonzales, 550 U.S. at 124.

65. Stenberg v. Carhart, 530 U.S. 914 (2000).

66. Gonzales, 550 U.S. at 168.

67. Adam Liptak, O'Connor Casts a Long Shadow on the Nominee, N.Y. TIMES, Jan. 12,
2006, at Al.

68. Carhart, 530 U.S. at 918-19.

69. Gonzales, 550 U.S. at 130.

70. See Posting of Geoffrey Stone, supra note 60.

71. Id.



2010] HONORING THE LEGACIES 457



expected, 72 but the most interesting response was from Justice Scalia. He had
been my colleague on the faculty at the University of Chicago in the 1970s, and
we were friends. A student came to me about six months after this piece was
published, and said, "Did you know that Justice Scalia said that he would not set
foot in the University of Chicago Law School again as long as you're on the
faculty?" I said, "Not possible. That's ridiculous."

Then about six months ago Joan Biskupic, a very fine reporter and author,
called me to say she was writing a biography of Scalia 73 and wanted to discuss his
reaction to my piece on Gonzalez. She said that during one of her interviews of
Scalia, she'd asked him about my piece, and he had jumped up from his chair and
exclaimed, among other things, "I'm never going to set foot in the University of
Chicago Law School again as long as Stone is on the faculty." In effect, he
accused me of being bigoted against Catholics, although that missed my point
entirely. To get the full account of this incident, you should read Biskupic' s
book, An American Original™ which is actually quite good. The point is simply
that these issues touch nerves.

Justice Boehm:

Well, the answer to the most important decision in my Term is easy. The
Chief himself thought that Reynolds v. Sims 15 was not only the most important
decision of the 1963 Term, 76 but the most important decision of his tenure on the
Court, including Brown v. Board of Education 17 and all the other decisions. Often
when I make that comment I get a lot of raised eyebrows, particularly from
younger audiences that have never heard of Reynolds v. Sims. Many people seem
to think that there is a one person, one vote clause in the Constitution somewhere.
Not so.

Reynolds v. Sims was a decision involving the apportionment of the Alabama
state legislature, which was severely mal-apportioned. 78 Let me describe the
situation in Indiana since this is largely a Hoosier audience. In Indiana, the 1960
election when John Kennedy was elected president, was conducted on legislative
and congressional maps that were based on the 1920 census. 79 There had been no
reapportionment for forty years. And a culture of "let's continue to protect our
own backsides" had dominated the legislature to the point where reapportionment
was a subject that was really largely off the table within the legislature.

In the meantime, beginning from 1920 to 1960, as you might expect, there



72. Posting of Geoffrey Stone to The Faculty Blog, http://uchicagolaw.typepad.com/faculty/
2007/04/faith_basedJus.html (Apr. 25, 2007, 9:09).

73 . Joan Biskupic, American Original: The Life and Constitution of Supreme Court
Justice Antonin Scalia (2009).

74. Mat 202-05.

75. 377 U.S. 533(1964).

76. The case was argued November 13, 1963 and decided June 15, 1964. Id.

77. 347 U.S. 483 (1954) (Brown I).

78. Reynolds, 311 U.S. at 537-38.

79. Howard D. Hamilton et al., Legislature Reapportionment in Indiana: Some Observations
and a Suggestion, 35 NOTRE DAME L. Rev. 368 (1959-60).



458 INDIANA LAW REVIEW [Vol. 43:441



had been dramatic shifts in the population centers of this state. At that time,
Indiana had eleven congressional districts. The district in the southeastern
quadrant of the state, that is one of the least populated and in many configurations
came to be represented for many years by Lee Hamilton, had a population of
roughly one fifth that of Marion County, which was also a congressional district.
So, you had a five to one disparity in the numbers of people who were electing
one congressman.

The same phenomenon existed in the state legislatures. It's more complicated
to explain it because the districts were smaller. But basically, you had massive
malapportionment of the state legislature in relationship to the population as it
then sat. Reynolds v. Sims invoked the Equal Protection Clause 80 to hold that you
can't do that. You have to essentially have one person, one vote in both houses
of the legislature.

Now, this was highly controversial. As Professor Levinson noted, it
restructured American democracy. What it did was shift the center of gravity of
the state legislatures in many parts of the country, and certainly Indiana,
essentially from rural and small town districts to the suburbs. It didn't so much
shift it to the cities themselves, because they already were significant forces. But
the suburban areas — to take Marion County that most people in this room are
familiar with, at the time Reynolds v. Sims was decided, Indianapolis and the
metropolitan area was all inside Marion County. The surrounding counties, the
ones that those of us who live here call the "donut counties" around Marion
County, were essentially rural and farm areas. As you know, Hamilton County
to the north of Indianapolis is now the fifth most populated county in the state.
The one person, one vote requirement didn't effect a shift of power from
Democrats to Republicans or vice versa. But what it did is shift representation
from small town and rural interests to suburban areas, and created a legislature
that then proceeded over the ensuing several decades to be much more responsive
to concerns like consumerism and environmentalism.

A lot of the relatively modest progressive movements that evolved through
the '70s and '80s simply could not have happened at the state level without
Reynolds v. Sims mandating that the legislatures fix this imbalance, which the fox
in charge of that henhouse had no interest in fixing itself. And the effect of that
was not just to enable a broad range of basically progressive movements to
become implemented at the state level, it was also to revive federalism. It made
the states more responsive in dealing with a lot of the problems that had, through
the New Deal in successive years, because of a default by the state in dealing with
them, been forced onto the federal agenda. And the result is of enormous historic
consequence, I think. And the Chief was absolutely right. It cut across the board
and affected virtually every aspect of American life.

I would like to comment on a case that didn't get decided — in a very peculiar
way. The case that we thought that was going to be the biggest case of the 1963
Term was Bell v. Maryland} 1 Now, how many of you know Bell v. Maryland!



80. U.S. Const, amend. XIV, �� 1.

81. 378 U.S. 226(1964).



20 1 0] HONORING THE LEGACIES 459



No?

Bell v. Maryland came to us as a sit-in case from Maryland. 82 It was a classic
case of an African American that had been rejected admittance to a lunch counter.
This had happened all over the country, and Mr. Bell brought his claim purely
under the Fourteenth Amendment. 83 His claim was that the Fourteenth
Amendment is self-effectuating, and prohibits discrimination in public facilities
without need of any implementing legislation by Congress. That claim wended
its way through the Maryland state courts and the Maryland Court of Appeals
said, no, there's no such federal claim. Cert comes up to the U.S. Supreme Court
and the case arrives about the same time I do in August of 1963.

This case, if decided in favor of the plaintiffs, would have been a judicial
enactment of the Civil Rights Act of 1964, in effect. It would have been a
declaration that the Constitution in and of itself, without any need of
congressional action, prohibits discrimination on the basis of race in public
facilities. And there's nothing in the case that would have restricted its
application. It would have been Brown against the Board, not just for schools but
for everything. You can imagine what a monumental decision this was.

Well, the case grinds forward, and on November 22, 1963, a date ingrained
in the memory of most people my age, President Kennedy was killed. Lyndon
Johnson becomes president, and over the course of the next several months,
Johnson gets the Civil Rights Act through the Congress of the United States. The
Maryland General Assembly then responds with a public accommodations law
of its own in Maryland. And the case that is thought to become this historic,
ultimate high water of — to use the term of opponents — an activist court, is
decided on the basis that, well, Maryland might have changed its mind in light of
this intervening legislation, so we're going to send the case back to Maryland to
see whether, in the light of either the federal act or the state act, they want to
change their minds on this prosecution. And as far as I know, that issue has never
been resolved to this day, whether the Fourteenth Amendment would have
achieved the same result without it. It would have been a yet unprecedented view
of the state action requirement. There were all these arguments for state action.
We license corporations. We provide police protection to them. There were a
whole bunch of arguments as to what was sufficient.

Professor Levinson:

No. No, if anything the Court has generally narrowed the reach of the
Fourteenth Amendment.

Justice Boehm, you were talking about Reynolds v. Sims* 4 which facilitated
real democracy. It reminded me of campaign finance reform and the Court's
recent decision that invalidated longstanding limits on corporate spending 85 and
overturned Justice Marshall's opinion in the Austin case, 86 in which he decried the



82. Id at 227.

83. Id at 228 (citing U.S. CONST, amend. 14, �� 1).

84. 377 U.S. 533(1964).

85. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010).

86. Id at 913 (overruling Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990)).



460 INDIANA LAW REVIEW [Vol. 43 :44 1



corrosive effect of corporate wealth on elections. 87 Because we don't have a lot
of time left, it might be interesting to talk more broadly about judicial activism,
as well as the current debate about the politicization of the Supreme Court. When
all three of you clerked, the same complaints about the politicization of the Court
were heard — just in the other direction. How, if at all, was the liberal Warren
Court different?

Professor Stone:

I think there is a lot of similarity, at least in a superficial sense, between
liberal activism and conservative activism. But I'd make two points about this
issue. First, there is the problem of defining what we mean by a "conservative"
justice. When Richard Nixon appointed Burger, Rehnquist, Blackmun, and
Powell, they were thought of as conservative justices. But their understanding of
conservatism meant that they believed in judicial restraint. They were appointed
to resist the activism of the Warren Court. The conservative argument at the time
was that activism is bad, passivism is good. The conservative Justice was thus
one who would invalidate laws only in extraordinary circumstances, where the
finding of unconstitutionality was clear. This was the prevailing conception of
a conservative Justice throughout the era of the Burger Court. It is interesting, by
the way, that despite that understanding, three of the four Nixon appointees voted
in the majority in Roe v. Wade. %% Without their support, the decision would have
come out the other way.

Basically, though, judicial restraint was the catchword of judicial
conservatism at that time. In American politics today, that remains the public
conception of a conservative Justice. A conservative Justice "calls balls and
strikes," and does not exercise any kind of activist judicial review. That is an
entirely inaccurate description of the current conservatives on the Supreme Court,
however. In decisions like Heller? 9 the Second Amendment case; Citizens
United 90 the corporate campaign finance case; and in the Court's affirmative
action, commercial advertising, and federalism decisions, the Court's
"conservative" Justices have been extremely activist. In all of those cases, and
many more, Justices like Roberts, Kennedy, Scalia, Thomas, and Alito have been
anything but restrained. They have used the power of judicial review every bit
as actively as the Warren Court, but for different reasons. In short, we have seen
a dramatic change in the meaning of judicial conservatism.

Unfortunately, the nature and magnitude of this change has not been
understood by the public, which still clings to the idea that conservative Justices
"apply the law" rather than "invent the law." Because of this, one of the most
serious challenges for the American Constitution Society is to explain to the
public that the conservative Justices are not neutral or passive in their
interpretation of the Constitution, but are aggressively ideological.

The second point I'd like to make concerns the nature of judicial activism.



87. Austin, 494 U.S. at 660.

88. 410 U.S. 113(1973).

89. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

90. 130 S. Ct. at 876.



20 1 0] HONORING THE LEGACIES 46 1



Justices Brennan, Marshall, Warren, and the other Justices of that era who were
labeled activists had a fundamental vision of when it was appropriate for the
Court to be muscular in its exercise of judicial activism. Basically, they thought
judicial activism was warranted in two situations. First, they believed they had
a special responsibility to protect the rights of religious dissenters, racial
minorities, political dissidents, persons accused of crime, and others whose
interests are likely to be inadequately protected in the majoritarian political
process. Second, they believed the Court has a special responsibility to make sure
that the channels of the political system itself are open and well functioning, as
illustrated by such decision as Reynolds v. Sims 91 and New York Times Co. v.
Sullivan. 92 Almost all of their most controversial decisions fell into one or both
of those categories.

That is, in my view, a sensible and principled understanding of the proper
role of the judiciary in our constitutional system. But if you try to make sense of
the activism of today's conservative Justices, it's very difficult to come up with
any kind of principled or coherent theory that would explain their activist judicial
review. On what theory does the Supreme Court get activist on such issues as the
rights of gun owners, the rights of corporations, the rights of commercial
advertisers, the right of the Boy Scouts to exclude gay scoutmasters, and the
rights of those who oppose affirmative action? As far as I can tell, there is no
principled theory of judicial review or of the role of courts that explains this
pattern of decisions. They just seem to correspond to the ideological
predispositions of political conservatives. That, I think, is a serious problem with
the current Court, and it is a profound difference between Warren Court-era
judicial activism and Roberts Court-era judicial activism.

Justice Boehm:

One comment on keeping the channels of our political system working
properly, which I take to mean making sure there aren't structural obstacles to the
proper working of government. Just on a personal count, when I was still a
private lawyer, I was lead lawyer for the plaintiffs in a case called Bandemer
against Davis. 93 I think it became Davis against Bandemer 94 in the Supreme
Court, which was the first case that got to the Supreme Court challenging
gerrymandering as an equal protection violation. And it ended up in a 4-3-2
decision where Justice White wrote the four Justice plurality opinion. The
Indiana General Assembly map in question was obviously a gerrymandered map.
It included a mix of multi-member districts and single member districts — and
districts that were drawn in a way that couldn't possibly be explained on any
basis other than it was designed to elect a Republican legislature. But Justice
White was joined by both Brennan and Marshall in the proposition that, whatever
was going on in Indiana in the 1980 map, it wasn't bad enough according to the



91. 377 U.S. 533(1964).

92. 376 U.S. 253(1964).

93. 478 U.S. 109(1986).

94. Id. at 1 13 (White, J., plurality opinion).



462 INDIANA LAW REVIEW [Vol. 43 :44 1



plurality opinion. 95

Professor Levinson:

And we've never figured out what's bad enough, right?

Justice Boehm:

Nobody's ever come up with anything that is bad enough. There's been a
subsequent Pennsylvania case that wasn't bad enough, 96 and so the level to which
Blackmun and Justices Brennan and Marshall were willing to go to open up those
channels obviously had limits — although one way to look at that decision is you
weren't going to get a five- Justice majority anyway, so go along with Justice
White's opinion. I don't know what was in their brains.

Professor Tushnet:

I have, I think, just two comments. I would emphasize something that Geoff
said in passing, which is that there is an account of when the Roberts Court is
activist. The account says, it's activist by reading the Republican platform. If we
could get that idea across, that would be pretty effective, because I don't think
people think that the Constitution is the Republican platform.

The other thing is this. It would be really nice if the next nominee for the
Supreme Court got up and said,

Damn right, I'm going to be an activist. If the Constitution says the
statute is unconstitutional, I'm going to find it unconstitutional. And if
it doesn't say it's unconstitutional, I'm not going to find it
unconstitutional. That's just what Roberts and Alito do. I'm not going
to do anything different.

People associated with the liberal or progressive side have been scared away from
the word activism when the phenomenon of activism has shifted to the other side
of the spectrum. I never know quite whether this is exactly appropriate, but
there's a U2 performance of the song "Helter Skelter." 97 They open up with Bono
saying, "Charlie Manson took this away from us, we're going to take it back."
I think that's what we ought to do about activism. We ought to take it back.

Professor Levinson:

I think that's an important observation. Statistically, the Rehnquist Court, for
example, overturned more acts of Congress than all previous Supreme Courts
combined. 98 This concept of activism is certainly a two-way street.

We are running short on time, so would each of you like to sum up what you
think was the greatest contribution of your Justice? We will then have a little
time for comments and questions from the audience.

Professor Tushnet:

Well, for me, it's Brown v. Board of Education." That was his opinion, as



95. Mat 143.

96. Vieth v. Jubelirer, 541 U.S. 267 (2004).

97. U2, Helter Skelter (Island 1 988) (cover of The Beattles, Helter Skelter (Apple
Records (1968)).

98. The Constitution in 2020, at 39 (Jack M. Balkin & Reva B. Siegel, eds. 2009).

99. 347 U.S. 483 (1954).



20 1 0] HONORING THE LEGACIES 463



far as I'm concerned.

Professor Levinson:

And his work to make that happen. That's true.

Professor Stone:

For Brennan, I think it was the First Amendment. Brennan became a vocal
champion of the First Amendment during his tenure on the Court and he was an
extremely important and influential thinker about the meaning of free speech.
That is probably his greatest achievement. He transformed the way we think
about the freedom of speech and press.

Justice Boehm:

All of the above. The Chief was able to get a majority together and
sometimes even a unanimous Court on extremely controversial subjects. To try
and pull one of them out, just try and consider what America would be like
without some of these keystones.

Dino Pollock:

We're going to take the last five, six minutes or so to take your questions. If
you would, please stand up or raise your hand, we'll recognize you and then you
can address your question to either the entire panel or one particular panelist.

Unknown Speaker:

This is to Justice Boehm. Did Earl Warren ever discuss the internment of
Japanese during World War II, during your time?

Justice Boehm:

Not with me. I don't — I never heard him address the subject.

Unknown Speaker:

Justice Scalia once said that no other Justice was as powerful as Justice
Brennan because the Constitution was this pliable thing, the notion of which was
such that he could say, oh does it mean one hundred percent, does it mean fifty
percent, what does it mean, where as I, Justice Scalia, see a document and I make
decisions based on that. My second question is that based on his view that if you
look at the language as it was understood by objective person at that time, which
in 1791 meant sabers and muskets, do you feel like the Heller decision betrayed
what he purports to be as his perspective?

Professor Stone:

Well, the danger in a kind of open-ended and aspirational conception of the
Constitution is that it can be an unbounded premise on which to interpret the
often very ambiguous words of the Constitution. That is a potential problem. We
need some constraint to give a sense of structure, direction, and legitimacy to
constitutional interpretation.

It is certainly possible, however, to identify the values that are the central
aspirations of those provisions and that can be analyzed in an appropriate,
constrained, and logical manner. But the challenge is certainly a real one.

With respect to Scalia, I'm not a great fan of his version of originalism. First
of all, though, I should emphasize that I think the idea of an aspirational, living
constitutionalism is originalist. That methodology attempts to implement an
originalist meaning, but with the recognition that, in adopting phrases like,



464 INDIANA LAW REVIEW [Vol. 43 :44 1



"Congress shall make no law abridging the freedom of speech," 100 or "no state
shall deny any person the equal protection of the laws," 101 or inflict upon any
person "cruel or unusual punishments," 102 the Framers were not enacting a
specific code with a clearly defined meaning. Rather, they understood full well
that they were adopting provisions that were vague, open-ended, and would have
to gain meaning over time.

On the other hand, the form of originalism that seeks to fix the meaning of
these provisions in terms of what the Framers specifically intended or expected
is largely a ruse. For one thing, the Framers themselves never intended the
Constitution to be construed in this way, so the basic premise of this sort of
originalism is inherently contrary to originalism. But beyond that, lawyers are
not particularly good historians and, in any event, we often know very little about
what the Framers themselves actually intended or expected. As a consequence,
when purporting to undertake this sort of inquiry, "originalists" typically go
through the following thought process: "Well, what did the Framers intend?
Well, the Framers were reasonable people. I'm a reasonable person. So, the
Framers must have intended what I would have intended had I been there at the
time." So, conservative "originalists" hold affirmative action unconstitutional,
they hold that the Boy Scouts have a First Amendment right to exclude gay
scoutmasters, they hold the regulation of guns unconstitutional, they hold that
corporations have First Amendment rights, and so on. None of that is in any
credible way an "originalist" understanding of the Constitution. Rather, such
decisions simply illustrate how "originalist" Justices smuggle their own values
into the Constitution by conveniently attributed them to the Framers, who (for all
we know) never held them.

Mr. Pollock:

Yes. Justice Sullivan? 103

Justice Sullivan:

Let me just say that Professor Tushnet's provocative comment that we should
recapture the term activism, isn't it true that a century ago the activists were the
conservatives? And so, the call for recapturing seems to have a very sound basis
in history after all the Lochner 104 Court was criticized for activism, right?

Professor Tushnet:

Certainly. Another way of putting the point about recapturing the term
"activism" is that, what we on my side of the political spectrum need to do is
remove the term activism from the vocabulary because it doesn't tell us anything.
There are conservative activists and there are liberal activists. If you're a liberal,
you want liberal activism and you don't want conservative activism. But it's not
activism that's at stake. It's the aspirations of the Constitution. There are



100. U.S. Const, amend. I.

101. U.S. Const, amend XIV, �� 1.

102. U.S. Const, amend. VIII.

103. Indiana Supreme Court Associate Justice Frank Sullivan.

104. Lochner v. New York, 198 U.S. 45 (1905).



20 1 0] HONORING THE LEGACIES 465



conservative visions of an aspirational Constitution, too. That's a discussion we
could have. But having a discussion about whether somebody's an activist or not
is just not productive.

Mr. Pollock:

Thank you so much for coming out and we appreciate your time.



Indiana Law Review

Volume 43 2010 Number 2



NOTES



Recalling What Congress Forgot: Ledbetter's

Continuing Applicability in FHA Design-and-

construction cases and the need for a

Consistent Legislative Response



Laura Katherine Boren



Introduction

In 1988, Congress made "a clear pronouncement of a national commitment
to end the unnecessary exclusion of persons with handicaps from the American
mainstream" when it enacted the Fair Housing Amendments Act. 1 The Act
amended Title VIII of the Civil Rights Act of 1968, also known as the Fair
Housing Act (FHA). 2 The amended FHA requires, among other things, that all
new covered multifamily housing be designed and constructed in accordance
with seven accessibility features specified in 42 U.S.C. �� 3604(f)(3)(C). 3 Twenty
years later, the congressional mandate has been largely ignored. 4 Several studies
have revealed substantial noncompliance with �� 3604(f)(3)(C). 5

When interpreting the FHA, courts regularly turn to judicial interpretations



* J.D. Candidate, 2010, Indiana University School of Law — Indianapolis; B.S.W., 2006,
University of Southern Indiana, Evansville, Indiana. I would like to thank Professor Florence
Wagman Roisman for her invaluable input and guidance throughout the process of writing of this
Note. I also thank my husband, family, and friends for their patience and support.

1. H.R.REP.NO. 100-711, at 18, 23 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179,
2184. Prior to the passage of the Fair Housing Amendments Act, the FHA prohibited
discrimination on the basis of race, color, national origin, religion, and sex. Id. at 13. The Fair
Housing Amendments Act added "handicap" as well as "familial status" to the list of prohibited
bases for discrimination. Id. at 18-19. Although the FHA uses the term "handicap" rather than
"disability," its definition of "handicap" is identical to the definition of "disability" in other federal
civil rights statutes. Therefore, this Note uses the terms interchangeably. See 29 U.S.C. �� 705(9)
(2006); 42 U.S.C. �� 12102(2) (2006); see also Robert G. Schwemm, Barriers to Accessible
Housing: Enforcement Issues in "Design and Construction " Cases Under the Fair Housing Act,
40 U. RICH. L. Rev. 753, 753 n.4 (2006) [hereinafter Schwemm, Barriers].

2. H.R. Rep. No. 100-71 1, at 15, 18, reprinted in 1988 U.S.C.C.A.N. at 2176, 2179.

3. 42 U.S.C. �� 3604(f)(3)(C) (2006).

4. See Schwemm, Barriers, supra note 1 , at 768-70.

5. Id.



468 INDIANA LAW REVIEW [Vol. 43 :467



of Title VII of the Civil Rights Act of 1964 6 for guidance. 7 In Ledbetter v.
Goodyear Tire & Rubber Co., 8 the Supreme Court held that a plaintiffs Title VII
wage discrimination claims were time-barred. 9 The Court held that the event that
triggered the statute of limitations was the discriminatory pay-setting decision,
and the plaintiffs continued receipt of smaller paychecks due to discriminatory
decisions made outside the charging period could not revive her expired claims. 10

Recently, in Garcia v. Brockway" the U.S. Court of Appeals for the Ninth
Circuit relied heavily on Ledbetter to hold that the statute of limitations for FHA
design-and-construction claims "is . . . triggered at the conclusion of the design-
and-construction phase, which occurs on the date the last certificate of occupancy
is issued." 12 Garcia severely impairs the FHA's accessibility provisions because
it totally forecloses private design-and-construction suits two years after a
covered multifamily dwelling is built, regardless of whether any interested
individual was aware of or harmed by the accessibility deficiencies during that
time. 13

Subsequent to the Ninth Circuit's Garcia decision, Congress acted to
override Ledbetter with respect to wage discrimination claims by passing the
Lilly Ledbetter Fair Pay Act of 2009 (Ledbetter Act). 14 The question of whether
and to what extent Ledbetter will continue to impact nonwage discrimination
suits, including FHA design-and-construction suits, remains unanswered.
Despite Congress's disapproval of Ledbetter, courts are likely to continue to rely
on Ledbetter to narrowly interpret the FHA's design-and-construction
provisions. 15



6. 42 U.S.C. �� 2000e (2006).

7. The Supreme Court relied on Title VII precedent in interpreting the FHA in Traffwante
v. Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972). The lower courts have followed
suit. See, e.g., DiCenso v. Cisneros, 96 F.3d 1004, 1008-09 (7th Cir. 1996); Pfaffv. U.S. Dep't of
Hous. & Urban Dev., 88 F.3d 739, 745 n.l (9th Cir. 1996); Huntington Branch of the NAACP v.
Town of Huntington, 844 F.2d 926, 935 (2d Cir.), affd per curiam, 488 U.S. 15 (1988). See
generally Robert G. Schwemm, Housing Discrimination: Law and Litigation �� 7:4 (2008)
[hereinafter Schwemm, Housing Discrimination].

8. 550 U.S. 618 (2007), superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub.
L. No. 1 1 1-2, 123 Stat. 5 (to be codified in scattered sections of 29 and 42 U.S.C).

9. Mat 628.

10. Mat 628-29.

11. 526 F.3d 456 (9th Cir.) (en banc), cert, denied, 129 S. Ct. 724 (2008).

12. Mat 46 1-62.

13. Id.

14. The Ledbetter Act was signed into law on January 29, 2009. Lilly Ledbetter Fair Pay Act
of 2009, Pub. L. No. 1 1 1-2, 123 Stat. 5 (to be codified in scattered sections of 29 and 42 U.S.C).
Garcia was decided in May 2008. 526 F.3d at 456.

15. See Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory
Interpretation of Congressional Overrides, 84 NOTRE DAME L. Rev. 511,516-17 (2009) (noting
"the general tendency by courts to construe narrowly the significance of Congress' disapproval of
prior holdings and instead rely upon the statutory analysis contained in the overridden decisions").



20 1 0] RECALLING WHAT CONGRESS FORGOT 469



This Note explores Ledbetter' s impact on the statute of limitations analysis
in FHA design-and-construction claims both before and after the Ledbetter Act.
Part I provides an overview of the FHA' s disability discrimination provisions and
enforcement mechanisms, its legislative history, and the basic principles that
guide its interpretation. Part II discusses the statute of limitations analysis in
Title VII wage discrimination claims chronologically, from Ledbetter to the
Ledbetter Act. Part III explores Ledbetter *s impact on FHA design-and-
constructions claims as manifested in Garcia. Part IV analyzes Garcia and its
shortcomings. Finally, Part V contends that, despite the legislative override,
courts will continue to apply Ledbetter in FHA design-and-construction cases
and argues that Congress should pass a legislative solution to close the
enforcement loophole the Ledbetter Act left open.

I. Background of Disability Discrimination Under the FHA

The FHA prohibits housing discrimination on the basis of handicap in many
forms. 16 The FHA defines "handicap" as "(1) a physical or mental impairment
which substantially limits one or more of [a] person's major life activities, (2) a
record of having such an impairment, or (3) being regarded as having such an
impairment." 17 Federal regulations define "major life activities" as "functions
such as caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working." 18 Courts have determined that a
wide variety of impairments constitute handicaps for the purposes of the FHA,
including mobility impairments, 19 HIV and AIDS, 20 and past substance abuse. 21



16. See, e.g., 42 U.S.C. �� 3604(c) (2006) (making it unlawful to "make, print, or publish . .
. any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that
indicates . , . discrimination based on . . . handicap"); id. �� 3605 (making it unlawful to discriminate
on the basis of handicap in residential real estate transactions); id. �� 3617 (making it unlawful "to
coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment" of rights
granted under the FHA).

17. 42 U.S.C. �� 3602(h)(l)-(3).

18. 24 C.F.R. �� 100.201(b) (2008).

19. See, e.g., Garcia v. Brockway, 526 F.3d 456, 460 (9th Cir.) (en banc), cert, denied, 129
S. Ct. 724 (2008).

20. See, e.g., Giebeler v. M & B Assocs., 343 F.3d 1 143, 1 147-48 (9th Cir. 2003) (holding
that individual with AIDS was handicapped within the definition of the FHA); Support Ministries
for Pers. with AIDS, Inc. v. Vill. of Waterford, N.Y., 808 F. Supp. 120, 129 (N.D.N.Y. 1992)
(holding that HIV-infected individuals were handicapped for the purposes of the FHA, even though
they were capable of caring for themselves).

21. See, e.g., Reg'l Econ. Cmty. Program, Inc. v. City of Middletown, 294 F.3d 35, 46-48
(2d Cir. 2002) (holding that recovering alcoholics were handicapped within the meaning of the
FHA).



470 INDIANA LAW REVIEW [Vol. 43 :467



A. FHA Accessibility Requirements

Although the FHA prohibits many types of disability discrimination, 22 this
Note focuses on 42 U.S.C. �� 3604(f). 23 Section 3604(f)(1) of the FHA makes it
unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable
or deny, a dwelling to any buyer or renter because of a handicap." 24 Section
3604(f)(2) makes it unlawful "[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling, because of a handicap." 25

In addition to these general prohibitions, �� 3604(f) includes three special
provisions. 26 First, �� 3604(f)(3)(A) and (B) provide that the "refusal to permit
. . . reasonable modifications" to the premises and the "refusal to make
reasonable accommodations in rules, policies, practices, or services" necessary
to allow a disabled person to use and enjoy the premises are discrimination for
the purposes of �� 3604(f). 27 Section 3604(f)(3)(C) lays out the FHA's
accessibility requirements, providing that for the purposes of �� 3604(f),
discrimination also includes:

[I]n connection with the design and construction of covered multifamily

dwellings for first occupancy after the date that is 30 months after

September 13, 1988, a failure to design and construct those dwellings in

such a manner that—

(i) the public use and common use portions of such dwellings are readily

accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises

within such dwellings are sufficiently wide to allow passage by

handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of

adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations;

(III) reinforcements in bathroom walls to allow later installation of
grab bars; and

(IV) usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space. 28

For the purposes of �� 3604(f)(3)(C), "covered multifamily dwellings" means all
units in buildings with elevators and four or more units, as well as ground-floor



22. See, e.g., 42 U.S.C. ��� 3604(c), 3605, 3617 (2006).

23. Id. �� 3604(f).

24. Id.�� 3604(0(1).

25. Id. �� 3604(f)(2).

26. Id. �� 3604(f)(3)(A)-(C).

27. Id. �� 3604(f)(3)(A)-(B).

28. Id. �� 3604(f)(3)(C).



20 1 0] RECALLING WHAT CONGRESS FORGOT 47 1



units in buildings without elevators that contain four or more units. 29

B. FHA Enforcement Mechanisms

The FHA provides three enforcement mechanisms. 30 First, the Attorney
General may commence a civil action upon belief that a defendant "is engaged
in a pattern or practice of resistance to the full enjoyment of any of the rights
granted by [the FHA]" or if "any group of persons has been denied any of the
rights granted by [the FHA] and such denial raises an issue of general public
importance." 31 The FHA does not prescribe a statute of limitations for suits
under this section, but courts have held that the limitations period depends on the
type of relief sought. 32 Courts have held that the statute of limitations for �� 3614
actions seeking damages is three years and that the statute of limitations for
actions seeking civil penalties is five years. 33 Actions seeking injunctive relief
are not subject to any statute of limitations. 34

Second, an "aggrieved person" may initiate an administrative complaint with
the Department of Housing and Urban Development (HUD). 35 The FHA defines
an "aggrieved person" as a person who "(1) claims to have been injured by a
discriminatory housing practice; or (2) believes that such person will be injured
by a discriminatory housing practice that is about to occur." 36 In order to be
timely, a plaintiff must file an administrative complaint within one year after the
discriminatory housing practice occurs or terminates. 37

Finally, "[a]n aggrieved person may commence a civil action . . . not later
than [two] years after the occurrence or the termination of an alleged
discriminatory housing practice." 38 Thus, determining which event triggers the
statute of limitations comes down to identifying what constitutes a discriminatory
housing practice. 39 The FHA defines a "discriminatory housing practice" as "an



29. Id. �� 3604(f)(7).

30. See id. ���3610,3613,3614.

31. Id. �� 3614(a).

32. See, e.g., Garcia v. Brockway, 526 F.3d 456, 460 (9th Cir.) (en banc), cert, denied, 129
S. Ct. 724 (2008).

33. Id.

34. Id. Injunctive relief for violations of the FHA's design-and-construction provisions
includes retrofit orders. Schwemm, Barriers, supra note 1, at 836. When enforcing its rights, the
United States is not subject to the affirmative defense of laches. United States v. Summerlin, 310
U.S. 414, 416 (1 940); see also United States v. Quality Built Constr., Inc, 309 F. Supp. 2d 756, 761
(E.D.N.C. 2003). Therefore, the possibility always remains that the Attorney General could bring
suit to have a noncompliant covered dwelling brought into compliance. Schwemm, Barriers, supra
note 1, at 767-68.

35. 42 U.S.C. �� 3610(a)(l)(A)(i) (2006).

36. Id. �� 3602(i).

37. Id. �� 3610(a)(l)(A)(i).

38. Id. �� 3613(a)(1)(A).

39. Though this Note focuses on identifying the discriminatory housing practice in the



472 INDIANA LAW REVIEW [Vol. 43 :467



act that is unlawful under section 3604 . . . of this title." 40 The courts are divided
as to what actions constitute unlawful discriminatory housing practices under the
FHA in the design-and-construction context. 41

C. Legislative History

The legislative history of the Fair Housing Amendments Act provides insight
into the legislative intent behind the accessibility requirements. 42 The House
Report indicates that the purpose of the design-and-construction provisions was
to end the exclusion of individuals with disabilities from mainstream society. 43
Congress deemed the design-and-construction provisions necessary "to avoid
future de facto exclusion of persons with handicaps." 44 Congress came to this
conclusion "[b]ecause persons with mobility impairments need to be able to get
into and around a dwelling unit (or else they are in effect excluded because of
their handicap)." 45 Congress believed that the accessibility provisions would
remove the barriers individuals with disabilities had encountered in the search for
equal housing opportunities. 46

Additionally, the legislative history reveals a congressional intent to expand
enforcement of the FHA by private civil actions. 47 The House Report stated that
private enforcement of the FHA had been undermined by a short limitations
period and that Congress sought to remedy that deficiency by expanding the
limitations period from 1 80 days to two years. 48 The House Report also indicated
that Congress removed previously existing limitations on punitive damages and
attorney's fees awards because they created disincentives for private individuals



context of the private civil action, that determination would also control in administrative
proceedings under �� 3610(a) because they must be filed within a year of the occurrence or
termination of a discriminatory housing practice. Id. �� 3610(a). On the other hand, there is no
explicit requirement that a "discriminatory housing practice" must take place for the Attorney
General to bring suit under �� 3614. Id. �� 3614(a).

40. Id. �� 3602(f).

41. See, e.g. Garcia v. Brockway, 526 F.3d 456, 461 (9th Cir.) (en banc), cert, denied, 129
S. Ct. 724 (2008) (holding that the conclusion of the design-and-construction phase triggered the
statute of limitations); Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 F. App'x
469, 479-80 (6th Cir. 2006) (unpublished), cert, denied, 128 S. Ct. 880 (2008) (holding that the
sale or rental of the last nonconforming unit in a development triggered the statute of limitations);
Mont. Fair Hous., Inc. v. Am. Capital Dev., Inc., 81 F. Supp. 2d 1057, 1063 (D. Mont. 1999)
(holding that bringing the building into compliance with FHA accessibility requirements triggered
the statute of limitations).

42. See H.R. Rep. No. 100-71 1 (1988), reprinted in 1988 U.S.C.C.A.N. 2173.

43. Id. at 18, reprinted in 1988 U.S.C.C.A.N. at 2179.

44. Id. at 27, reprinted in 1988 U.S.C.C.A.N. at 2188.

45. Id. at 1 8, reprinted in 1988 U.S.C.C.A.N. at 2179.

46. Id. at 27-28, reprinted in 1988 U.S.C.C.A.N. at 2188-89.

47. Id. at 39-40, reprinted in 1988 U.S.C.C.A.N. at 2200-01 .

48. Id. at 16, 39, reprinted in 1988 U.S.C.C.A.N. at 2177, 2200.



20 1 0] RECALLING WHAT CONGRESS FORGOT 473



wishing to bring suit. 49 These amendments evince the congressional intent to
encourage individuals to enforce the FHA by allowing them broader access to the
courts.

D. Supreme Court Precedent

When interpreting the FHA, the courts follow several guiding principles
initially set forth by the Supreme Court. 50 First, courts have long interpreted the
FHA consistently with Title VII precedents. 51 In Trafficante v. Metropolitan Life
Insurance Co., 52 the Supreme Court first used judicial interpretation of Title VII
as a source of guidance for construing the FHA. 53 In Trafficante, the Court
quoted a Title VII case holding that the words of the statute indicated a
congressional intent to broadly define standing under Title VII. 54 The Court went
on to reach the same conclusion with respect to suits brought under the FHA. 55
Numerous lower courts have followed the Supreme Court's example by relying
on Title VII precedents to construe the FHA. 56

Second, in Trafficante and many subsequent decisions, the Supreme Court
has held that courts should construe the FHA broadly. 57 In Trafficante, the Court
reasoned that "[t]he language of the Act is broad and inclusive" 58 and that the
Court could only give vitality to the important policies behind the FHA by
according it "a generous construction." 59 Similarly, in City of Edmonds v. Oxford
House, Inc., 60 the Court recognized the FHA's "'broad and inclusive' compass,
and therefore accord[ed] a 'generous construction.'" 61

Finally, in Trafficante, the Supreme Court held that HUD's consistent
administrative construction of the FHA is "entitled to great weight." 62 HUD is



49. Id. at 40, reprinted in 1988 U.S.C.C.A.N. at 2201.

50. See SCHWEMM, HOUSING DISCRIMINATION, supra note 7, �� 7. 1 .

51. Id. ��7:4.

52. 409 U.S. 205(1972).

53. Mat 209.

54. Id.

55. Id.

56. See generally SCHWEMM, HOUSING DISCRIMINATION, supra note 7, �� 7 :4 (citing, inter alia,
DiCenso v. Cisneros, 96 F.3d 1004, 1008-09 (7th Cir. 1996) (analyzing hostile environment sex
discrimination claims in the FHA context by analogy to Title VII); Pfaff v. U.S. Dep't of Hous. &
Urban Dev., 88 F.3d 739, 745 n.l (9th Cir. 1996) (noting that in an FHA familial status
discrimination case, "[w]e may look for guidance to employment discrimination cases")).

57. Trafficante, 409 U.S. at 21 1-12; see also City of Edmonds v. Oxford House, Inc., 514
U.S. 725, 731 (1995); Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982). See generally
Schwemm, Housing Discrimination, supra note 7, �� 7:2.

58. Trafficante, 409 U.S. at 209.

59. Mat 212.

60. 514 U.S. at 725.

61. Id. at 731 (quoting Trafficante, 409 U.S. at 209, 212).

62. 409 U.S. at 210.



474 INDIANA LAW REVIEW [Vol. 43 :467



the agency responsible for administering the FHA. 63 When Congress passed the
Fair Housing Amendments Act, it required HUD to issue rules to implement the
amended FHA. 64 HUD responded by promulgating a number of regulations 65 and
publishing various guidelines and manuals. 66

The administrative regulations HUD promulgates are entitled to deference
under the U.S. Supreme Court's decision in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc. 61 Under Chevron, courts engage in a two-step
analysis to determine whether to defer to a government agency's construction of
a statute it administers. 68 First, the court will determine whether the language of
the statute addresses the issue. 69 If so, the court will not defer to the
administrative agency's interpretation. 70 However, if Congress has not addressed
the issue or if the statute is ambiguous, the court will proceed to the second step
of the analysis, determining whether the agency's interpretation is permissible. 71
If the interpretation is reasonable, courts must give deference. 72 Thus, HUD
regulations are entitled to considerable deference.

On the other hand, HUD's interpretations embodied only in guidelines,
manuals, and policy statements are not entitled to Chevron-style deference. 73
Nevertheless, these interpretations are "entitled to respect" under Skidmore v.



63. 42 U.S.C. �� 3608(a) (2006).

64. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, �� 13(b), 102 Stat. 1619,
1636.

65. See, e.g. 24 C.F.R. �� 100.201 (2008); id. �� 100.205.

66. See, e.g. Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (Mar. 6, 1991);
Supplement to Fair Housing Accessibility Guidelines, 59 Fed. Reg. 33,362 (June 28, 1 994); Office
of Fair Hous. and Equal Opportunity, U.S. Dep't of Hous. and Urban Dev., Fair Housing
Act Design Manual: A Manual to Assist Designers and Builders in Meeting the
Accessibility Requirements of the Fair Housing Act ( 1 998) [hereinafter Design Manual];
Office of Fair Hous. and Equal Opportunity, U.S. Dep't of Hous. and Urban Dev., Title
VIII Complaint Intake, Investigation, and Conciliation Handbook 3-5 (1995) [hereinafter
Complaint Handbook].

67. 467 U.S. 837 (1984). Administrative interpretations of statutes are entitled to Chevron
deference only "when it appears that Congress delegated authority to the agency generally to make
rules carrying the force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27
(2001 ). "Delegation of such authority may be shown in a variety of ways, as by an agency's power
to engage in . . . notice-and-comment rulemaking." Id. at 227. Congress delegated such authority
to HUD when it passed the Fair Housing Amendments Act. Fair Housing Amendments Act, ��
13(b), 102 Stat, at 1636 ("[HUD] shall . . . issue rules to implement . . . this Act. The Secretary
shall give public notice and opportunity for comment with respect to such rules.").

68. Chevron, 467 U.S. at 842.

69. Id.

70. Id. at 842-43.

71. Id.

72. Mat 844.

73. See Christensen v. Harris County, 529 U.S. 576, 587 (2000).



20 1 0] RECALLING WHAT CONGRESS FORGOT 475



Swift & Co. 14 Under Skidmore, the level of deference courts pay to an
administrative interpretation "will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade." 75

II. Wage Discrimination Under Title VII: From Ledbetter

to the Ledbetter Act

Title VII makes it "an unlawful employment practice" to "discriminate
against any individual with respect to his compensation . . . because of such
individual's race, color, religion, sex, or national origin." 76 Under Title VII,
before an individual can challenge an unlawful employment practice in court, he
or she must first file a charge with the Equal Employment Opportunity
Commission (EEOC). 77 If the employee fails to file the charge within the
statutory charging period (either 180 or 300 days, depending on the state) after
the occurrence of an unlawful employment practice, the employee's claims are
time-barred. 78 Therefore, the timeliness of an employee's claim depends on what
events constitute unlawful employment practices. 79

A. Ledbetter v. Goodyear Tire & Rubber Co.

In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held in a 5-
4 decision that the 1 80-day charging period for Title VII wage discrimination
claims ran from the date the employer made the discriminatory pay-setting
decision. 80 The Court rejected the plaintiffs argument that each paycheck she
received that was lower due to past sex discrimination constituted a separate,
actionable violation of Title VII. 81 The Court reasoned that "[a] new violation
does not occur, and a new charging period does not commence, upon the
occurrence of subsequent nondiscriminatory acts that entail adverse effects
resulting from the past discrimination." 82

1. Facts and Procedural History. — Lilly Ledbetter worked as a supervisor



74. See id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 1 40 (1 944)); see also Garcia v.
Brockway, 526 F.3d 456, 476 (9th Cir.) (Fisher, J., dissenting), cert, denied, 129 S. Ct. 724 (2008).

75. 323 U.S. 134, 140(1944).

76. 42 U.S.C. �� 2000e-2(a)(l) (2006).

77. Id. ��2000e-5(e)(l).

78. Id. ; Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 6 1 8, 623-24 (2007), superseded
by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 1 1 1-2, 123 Stat. 5 (to be codified in
scattered sections of 29 and 42 U.S.C).

79. See Ledbetter, 550 U.S. at 624 (noting that, when determining whether EEOC charges
are timely filed, the Supreme Court has "stressed the need to identify with care the specific
employment practice that is at issue").

80. Mat 628.

81. Id.

82. Id.



476 INDIANA LAW REVIEW [Vol. 43 :467



at the Gadsden, Alabama Goodyear Tire & Rubber plant in from 1 979 to 1 998. 83
During most of her nearly twenty years of employment at Goodyear, Ledbetter
worked as an area manager, a position occupied mostly by men. 84 When she first
began working at Goodyear, Ledbetter' s salary was commensurate with that of
her male colleagues; however, by the time she took retirement, Ledbetter was
being paid significantly less than all of the male employees performing similar
work at the plant. 85 Ledbetter made $3,727 per month, while the lowest paid
male area manager made $4,286 per month, and the highest paid male area
manager made $5,236 per month. 86

In July 1998, Ledbetter filed a formal EEOC charge alleging that Goodyear
had discriminated against her because of her sex. 87 Ledbetter took early
retirement in November 1998 and filed a Title VII wage discrimination claim
against Goodyear. 88 Ledbetter alleged that over the course of her employment,
her supervisors had repeatedly given her poor performance evaluations because
she was a woman. 89 As a result of these discriminatory evaluations, Goodyear
did not increase her pay to the extent that it would have had her supervisors
evaluated her fairly. 90 Moreover, the discriminatory pay decisions continued to
affect the pay Ledbetter received throughout her employment and compounded
over time. 91

At trial, Goodyear claimed Ledbetter' s evaluations had been
nondiscriminatory and that the pay disparity was a result of Ledbetter' s poor
performance. 92 However, a supervisor admitted Ledbetter had received a "Top
Performance Award" in 1996. 93 Ledbetter presented abundant evidence of
widespread sex-based discrimination. 94 For example, the jury heard testimony
that a supervisor who evaluated Ledbetter "was openly biased against women,"
and two women who had worked as managers at Goodyear testified that they
"were paid less than their male counterparts." 95 In fact, one of the women
testified that she was paid less than the men she supervised. 96 Additionally, a
supervisor testified that one year, Ledbetter' s pay dipped below the established



83. Id. at 643 (Ginsburg, J., dissenting).

84. Id.

85. Id.

86. Id.

87. Id. at 621 (majority opinion).

88. Id. at 621-22.

89. Id. at 622.

90. Id.

91 . Id. at 649 (Ginsburg, J., dissenting) (noting that "Ledbetter's salary fell 1 5 to 40 percent
behind her male counterparts only after successive evaluations and percentage-based pay
adjustments").

92. Id. at 659.

93. Id.

94. Mat 659-60.

95. Id.

96. Mat 660.



20 1 0] RECALLING WHAT CONGRESS FORGOT 477



minimum amount for her position. 97 Also, Ledbetter testified that not long before
she retired, a plant official told her that the "'plant did not need women, that
[women] didn't help it, [and] caused problems.'" 98

The jury found for Ledbetter, and the district court awarded her back pay and
damages as well as counsel fees and costs. 99 The Court of Appeals for the
Eleventh Circuit reversed, holding that Ledbetter' s cause of action was time-
barred because the discriminatory pay decisions on which she based her claims
took place outside the EEOC charging period. 100

The Supreme Court granted Ledbetter' s petition for certiorari to determine
whether Ledbetter could maintain an action for wage discrimination under Title
VII based on the disparate pay she received during the EEOC charging period as
a result of Goodyear' s intentionally discriminatory pay decisions made outside
the charging period. 101 Justice Alito authored and Chief Justice Roberts and
Justices Scalia, Kennedy, and Thomas joined the majority opinion affirming the
Eleventh Circuit's judgment. 102 Justice Ginsburg authored a vigorous dissent that
Justices Stevens, Souter, and Breyer joined. 103

2. Majority Opinion. — In the majority opinion, Justice Alito first noted that,
when determining whether an EEOC charge was timely filed, the Court "ha[s]
stressed the need to identify with care the specific employment practice that is
at issue." 104 The Court relied on its earlier decision in National Railroad
Passenger Corp. v. Morgan 105 for the proposition that, when a plaintiff alleges
discrete acts of discrimination, such as termination, refusal to hire, and failure to
promote, the EEOC charging period begins when the discriminatory act occurs. 106
The Court held that the discriminatory pay-setting decisions were similar discrete
acts, and the charging period thus ran from the dates Goodyear made the
decisions. 107

Ledbetter argued that Goodyear' s pay-setting decisions were not the only
unlawful employment practices at issue. 108 She contended that each paycheck
she received during the charging period which was affected by Goodyear' s
previous discriminatory pay decisions was a separate violation of Title VII. 109
She also argued that Goodyear' s decision in 1998 to deny her a raise was an
unlawful employment practice because it perpetuated Goodyear' s previous



97. Id at 659.

98. Id. at 660 (alterations in original).

99. Id. at 644.

1 00. Id. at 622-23 (majority opinion).

101. Id. at 623.

102. Id. at 620-21.

103. Id. at 643 (Ginsburg, J., dissenting).

104. Id. at 624 (majority opinion).

105. 536 U.S. 101(2002).

106. Ledbetter, 550 U.S. at 621 (quoting Morgan, 536 U.S. at 1 14).

107. Id.

108. Id. at 624.

109. Id.



478 INDIANA LAW REVIEW [Vol. 43 :467



intentional discrimination. 1 10 The Court rejected these arguments, reasoning that
they would require it to abandon the fundamental component of a Title VII
disparate impact claim, discriminatory intent. 1 1 1 According to the Court, because
Ledbetter did not claim that Goodyear officials acted with intent to discriminate
when they issued the paychecks or when they denied her a raise in 1998,
Ledbetter was essentially complaining of the current effects of past
discrimination. 112 The Court held that Supreme Court precedent foreclosed
Ledbetter' s argument, 1 13 reasoning that "current effects alone cannot breathe life
into prior, uncharged discrimination." 114

3. Dissenting Opinion. — In her dissent, Justice Ginsburg argued that the
majority's holding ignored the realities of pay discrimination. 1 15 Pay disparities
are often initially small, so employees may not have reason to suspect their
employer has discriminated against them. * 16 According to Justice Ginsburg, "[i]t
is only when the disparity becomes apparent and sizeable, e.g., through future
raises calculated as a percentage of current salaries, that an employee in
Ledbetter' s situation is likely to comprehend her plight and, therefore, to
complain." 117 Also, Justice Ginsburg argued that information regarding
coworkers' salaries may not be available to employees, noting that employees
often keep their salary information private and that employers often refuse to
publish employee salary levels and even have rules requiring employees to
refrain from discussing their salaries. 118

Justice Ginsburg argued that each paycheck that perpetuated past
discrimination was a fresh instance of unlawful discrimination. 119 Relying on
Morgan, Justice Ginsburg reasoned that pay discrimination is different from the
discrete acts of discrimination identified by the majority. 120 Unlike the one-time,
easily identifiable acts of discrimination at issue in the cases the majority cited, 121



110. Id.

111. Id

112. Id

113. Id at 625-28 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002);
Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989), superseded by statute, Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 107; Del. State Coll. v. Ricks, 449 U.S. 250 (1980); United
Air Lines, Inc. v. Evans, 431 U.S. 553 (1977)).

114. Id at 628.

1 15. Id at 645 (Ginsburg, J., dissenting).

116. Id

117. Id

118. Mat 649-50.

119. Id. at 648.

120. Id.

121. Id. at 65 1 -52 (citing Lorance v. AT&T Tech., Inc., 490 U.S. 900, 902 ( 1 989), superseded
by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 107 (involving the adoption
of a discriminatory seniority system); Del. State Coll. v. Ricks, 449 U.S. 250, 252 ( 1 980) (involving
a denial of tenure); United Air Lines, Inc. v. Evans, 431 U.S. 553, 554 (1977) (involving a
discharge)).



20 1 0] RECALLING WHAT CONGRESS FORGOT 479



the pay discrimination Ledbetter faced was cumulative and concealed. 122
Therefore, according to Justice Ginsburg, the Court should have concluded that
the payment of a wage affected by the discriminatory pay-setting decision
constituted an unlawful employment practice. 123

Finally, Justice Ginsburg argued that the majority's decision was "totally at
odds with the robust protection against workplace discrimination Congress
intended Title VII to secure." 124 She noted that "the ball is in Congress' court"
and that the legislature could act to override the decision. 125

B. Congress 's Response: The Lilly Ledbetter Fair Pay Act of 2009

As Justice Ginsburg' s dissent adumbrated, Congress reacted to Ledbetter by
passing a legislative override of the Supreme Court's decision. 126 The Ledbetter
Act amends Title VII and provides:

[A]n unlawful employment practice occurs, with respect to
discrimination in compensation in violation of this title, when a
discriminatory compensation decision or other practice is adopted, when
an individual becomes subject to a discriminatory compensation decision
or other practice, or when an individual is affected by application of a
discriminatory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting in whole
or in part from such a decision or other practice. 127

Thus, the Act does not expand the statute of limitations for wage discrimination
claims; rather, it clarifies what events trigger the statute of limitations.

The Act goes on to provide that in addition to any other relief provided, an
aggrieved person may recover up to two years of back pay "where the unlawful
employment practices that have occurred during the charge filing period are
similar or related to unlawful employment practices with regard to discrimination
in compensation that occurred outside the time for filing a charge." 128 By
allowing back pay extending for a limited time beyond the charging period, the
Act strikes a balance between ensuring that employees have a chance to enforce
their Title VII rights and encouraging them to file claims promptly. 129

The congressional findings included in the Ledbetter Act 130 and the House



122. Mat 650.

123. Mat 646.

124. Mat 660.

125. Mat 661.

126. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 1 1 1-2, 123 Stat. 5 (to be codified in
scattered sections of 29 and 42 U.S.C.).

127. Id. �� 3, 123 Stat, at 5-6 (to be codified at 42 U.S.C. �� 2000e-5(3)(A)).

128. Id. �� 3, 123 Stat, at 6 (to be codified at 42 U.S.C. �� 2000e-5(3)(B)).

129. See H.R. Rep. No. 1 10-237, at 10 (2007).

130. Lilly Ledbetter Fair Pay Act, �� 2, 123 Stat, at 5 (to be codified at 42 U.S.C. �� 2000e-5
note).



480 INDIANA LAW REVIEW [Vol. 43 :467



Report accompanying an earlier version of the Ledbetter Act 131 indicate that
Congress embraced Justice Ginsburg' s dissent. The legislative findings state that
Ledbetter "significantly impairs statutory protections against discrimination in
compensation that Congress established and that have been bedrock principles
of American law for decades." 132 The findings further provide that "[t]he
limitation imposed by the Court on the filing of discriminatory compensation
claims ignores the reality of wage discrimination and is at odds with the robust
application of the civil rights laws that Congress intended." 133 Like Justice
Ginsburg 's dissent, the House Report differentiates between discrete
discriminatory acts and pay discrimination, indicating that Ledbetter 's result is
unfair to victims of pay discrimination whose claims may be barred even though
the discrimination is ongoing and concealed. 134

The Ledbetter Act does not apply to Title VII wage discrimination alone. 135
Rather, Congress explicitly extended its provisions to include wage
discrimination claims under the Age Discrimination in Employment Act
(ADEA), 136 the Americans with Disabilities Act (ADA), 137 and the Rehabilitation
Act (RA). 138 Thus, the Ledbetter Act makes it clear that Ledbetter is no longer
good law with respect to wage discrimination claims under Title VII and certain
related statutes. But the Act is silent whether and to what extent Ledbetter
should continue to influence courts interpreting the FHA.

III. Garcia v. Brockway: Ledbetter' s Effect on FHA Design-and-

CONSTRUCTION SUITS

Garcia is currently the leading case construing the statute of limitations in
FHA design-and-construction suits. 139 In the en banc decision, the U.S. Court of
Appeals for the Ninth Circuit relied heavily on Ledbetter to hold that the
completion of construction triggers the statute of limitations in FHA design-and-
construction cases. 140 Under the court's holding, the date that a plaintiff actually



131. H.R. Rep. No. 1 10-237. The 2007 Act was virtually identical to the 2009 Act. See id.
at 1-3.

132. Lilly Ledbetter Fair Pay Act, �� 2, 123 Stat, at 5 (to be codified at 42 U.S.C. �� 2000e-5
note).

133. Id.

134. H.R. Rep. No. 1 10-237, at 6.

135. Lilly Ledbetter Fair Pay Act, �� 5, 123 Stat, at 6-7 (to be codified at scattered sections of
29 and 42 U.S.C).

136. 29 U.S.C. ��621 (2006).

137. 42 U.S.C. �� 12111(2006).

138. 29 U.S.C. ��791(2006).

139. Currently, the only other circuit court case addressing the statute of limitations issue in
Title VII design-and-construction suits is an unpublished decision out of the Sixth Circuit. See Fair
Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. App'x 469 (6th Cir. 2006)
(unpublished), cert, denied, 128 S. Ct. 880 (2008).

140. Garcia v. Brockway, 526 F.3d 456, 466 (9th Cir.) (en banc), cert, denied, 129 S. Ct. 724



20 1 0] RECALLING WHAT CONGRESS FORGOT 48 1



becomes aware of the violation and whether a building continues to be
noncompliant is irrelevant to the statute of limitations determination. This
approach "forever immunizes developers and landlords of FHA-noncompliant
buildings from disabled persons' private enforcement actions once two years
have passed since the buildings' construction." 141

A. Facts and Procedural History

The facts of the two cases consolidated on appeal illustrate the problems
facing plaintiffs attempting to enforce design-and-construction claims through
private civil actions. 142 The first defendant, Brockway, built an apartment
complex in Boise, Idaho, and sold the last unit in 1994. 143 The individual
plaintiff in that case, Garcia, who used a wheelchair, leased an apartment in the
complex in 200 L 144 Garcia found that the apartments did not comply with the
FHA design-and-construction requirements, and management ignored his
requests for improvements. 145 Garcia filed a private civil action for FHA design-
and-construction violations against the builder and the architect within two years
of leasing the apartment. 146 The district court granted summary judgment in
favor of the defendants, holding that the statute of limitations barred the claim. 147

In the second consolidated case, Gohres Construction built the North Las
Vegas, Nevada Villas at Rancho del Norte in 1997. 148 After Gohres received a
final certificate of occupancy, the property was sold in 2001 through
foreclosure. 149 In 2004, Thompson, a member of the Disabled Rights Action
Committee (DRAC), "tested" the Villas and found violations of the FHA's
design-and-construction requirements. 15 �� Within one year, Thompson and DRAC
commenced a suit asserting an FHA design-and-construction claim. 151 The
district court granted defendants' motion to dismiss, holding that the claim was



(2008).

141. Id. at 475 (Fisher, J., dissenting).

142. See id. at 459 (majority opinion).

143. Id.

144. Id

145. Id

146. Id

147. Mat 459-60.

148. Id at 460.

149. Id

150. Id. "Testers" are individuals who, having no genuine interest in buying or renting a
dwelling, pose as potential buyers or renters for the purpose of collecting evidence of unlawful
housing practices. Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1102 (9th Cir. 2004).
DRAC initially filed a complaint with HUD in 1997, which HUD dismissed in 2001 because it
determined that testers lacked standing. Garcia, 526 F.3d at 460. In a later case, the Ninth Circuit
held that testers have standing to sue under the FHA. Id.

151. Garcia, 526 F.3d at 460.



482 INDIANA LAW REVIEW [Vol. 43 :467



time-barred. 152 In an opinion authored by Chief Judge Alex Kozinski, the Ninth
Circuit panel affirmed the district courts' decisions. 153 Judge Raymond Fisher
dissented. 154 Subsequently, the Ninth Circuit reheard the case en banc. 155

B. Majority Opinion

The en banc court adopted the panel decision with only minor changes. 156
Because the statute of limitations runs from the occurrence or termination of a
discriminatory housing practice, both the majority and the dissent agreed that
identifying the discriminatory housing practice at issue was integral to the
decision. 157 The majority held,

Here, the practice is the "failure to design and construct" a multifamily
dwelling according to FHA standards. The statute of limitations is thus
triggered at the conclusion of the design-and-construction phase, which
occurs on the date the last certificate of occupancy is issued. In both
cases, this triggering event occurred long before the plaintiffs brought
suit. 158

The plaintiffs argued that the design-and-construction violations were
continuing and would not terminate until the defendants remedied the
accessibility deficiencies. 159 The court noted that Congress codified the
continuing violations doctrine by inserting the word "termination" in ��
3613(a)(1)(A). 160 The plaintiffs argued that the word "'termination' would be
meaningless" if the court did not read it to mean the termination of the FHA
design-and-construction violations. 161 Quoting Ledbetter, the court rejected this
argument, reasoning that "termination" refers to the termination of a



152. Id.

153. Garcia v. Brockway, 503 F.3d 1092, 1094, 1101 (9th Cir. 2007), aff'don reh 'gen banc,
526 F.3d 456 (9th Cir. 2008).

154. Id. at 1 101 (Fisher, J., dissenting).

155. Garcia, 526 F.3d at 456.

156. Id. at 459.

157. Id. at 462, 468 (Fisher, J., dissenting).

158. Id. at 461 (majority opinion) (quoting 42 U.S.C. �� 3604(f)(3)(C) (2000)) (footnote and
citation omitted).

159. Id.

1 60. Id. at 46 1 -62. In Havens Realty Corp. v. Coleman, a unanimous Supreme Court held that
"where a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct
violative of the Act, but an unlawful practice that continues into the limitations period, the
complaint is timely when it is filed within [the specified time period, running from] the last asserted
occurrence of that practice." 455 U.S. 363, 380-81 (1982). When Congress passed the Fair
Housing Amendments Act, Congress indicated that it inserted the word "termination" into the
FHA's statute of limitations provisions for the purpose of codifying this holding. H.R. Rep. 100-
711, at 33 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2194.

161. Garcia, 526 F.3d at 462.



20 1 0] RECALLING WHAT CONGRESS FORGOT 483



discriminatory housing practice and that "[t]he Supreme Court has 'stressed the
need to identify with care the specific [discriminatory] practice that is at
issue.'" 162 Because the court held that the discriminatory practice at issue was
the '"failure to design and construct,' which is not an indefinitely continuing
practice, but a discrete instance of discrimination that terminates at the
conclusion of the design-and-construction phase[,]" it did not qualify as a
continuing violation. 163 Instead, the existence of the FHA design-and-
construction defects was a continuing effect of a past violation, and the court
again quoted Ledbetter for the proposition that '"current effects alone cannot
breathe life into prior, uncharged discrimination.'" 164

The court justified its holding on policy grounds. 165 The court stated that a
contrary conclusion would impose a severe hardship on builders because it
"would provide little finality for developers, who would be required to
repurchase and modify (or destroy) buildings containing inaccessible features in
order to avoid . . . liability." 166 The court reasoned that by enacting the two-year
statute of limitations, Congress indicated a contrary intent. 167

The court rejected the plaintiffs' two other theories to extend the statute of
limitations. 168 First, the plaintiffs argued that the statute of limitations should not
begin to run until the injured party encounters the defect by visiting the
property. 169 Professor Robert G. Schwemm advanced this theory in a recent
article. 170 The theory is based on the Supreme Court's guidance that unless the
statute contains contrary instructions, courts are to interpret the FHA in
accordance with ordinary tort principles. 171 Under ordinary tort principles, the
statute of limitations does not begin to run until a plaintiffs claim accrues, which
occurs when the defendant's negligent act has harmed the plaintiff. 172 Therefore,
in FHA design-and-construction cases, the statute of limitations would not begin
to run until the plaintiff personally encountered the accessibility deficiencies
because the encounter constitutes the injury. 173 The court rejected Professor
Schwemm' s theory, reasoning that it "ma[d]e too much" of the Supreme Court's
"passing reference to tort law" and that such an approach undercut the language



162. Id. (quoting Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 624 (2007))
(second alteration in original).

163. Id. (quoting 42 U.S.C. �� 3604(f)(3)(C) (2000)).

164. Id. at 463 (quoting Ledbetter, 550 U.S. at 628).

165. Id.

166. Id.

167. Id.

168. Mat 463-66.

169. Mat 465.

1 70. Schwemm, Barriers, supra note 1 , at 849-55.

171. &?e Meyer v.Holley, 537 U.S. 280, 285-91 (2003);Curtisv.Loether,415U.S. 189, 195-
96 (1974); Schwemm, Barriers, supra note 1, at 779.

1 72. Schwemm, Barriers, supra note 1 , at 850.

173. Id.



484 INDIANA LAW REVIEW [Vol. 43 :467



the FHA's statute of limitations. 174 The court noted, as did Professor Schwemm,
that where testers have standing to sue, the theory creates equitable problems
with regard to the liability of developers because testers could continually restart
the statute of limitations clock simply be revisiting the property. 175

Additionally, Garcia argued that under the discovery rule and equitable
tolling, the statute of limitations should only begin to run when the plaintiff
discovers the design-and-construction defect. 176 The discovery rule generally
provides that the statute of limitations will not begin to run until the plaintiff
knows he has been injured and his injury's cause. 177 Equitable tolling may apply
to extend the statute of limitations in cases where the plaintiff knows of his injury
but lacks other information necessary to decide whether the injury is caused by
another's wrongdoing. 178 The court rejected both of these theories, holding that
they would make the clear language of the statute meaningless by indefinitely
tolling the limitations period. 179

C. Dissenting Opinions

Judges Harry Pregerson and Stephen Reinhardt dissented in the en banc
decision and also adopted Judge Fisher's panel dissent. 180 Judge Fisher's dissent
took a different approach to what the majority called the statute's "clear"
language. 181 Judge Fisher argued that by classifying the "failure to design and
construct" as the discriminatory housing practice, the majority "committed] a
crucial error that underlies the rest of its decision." 182 According to the dissent,
the failure to design and construct a covered multifamily dwelling in accordance
with the FHA's accessibility requirements is not itself a discriminatory housing
practice that can trigger the statute of limitations. 183 Instead, �� 3604(f)(3)(C) is
merely a definitional provision. 184

Judge Fisher's approach closely tracks the FHA's statutory language. 185 The
analysis began with the statute of limitations provision, which provides that "[a]n
aggrieved person may commence a civil action . . . not later than 2 years after the
occurrence or the termination of an alleged discriminatory housing practice." 186
The FHA defines a "discriminatory housing practice," in pertinent part, as "an



174. Garcia, 526 F.3d at 464.

175. Id at 465 (citing Schwemm, Barriers, supra note 1, at 859).

176. Id

177. Id at 464.

178. Id

179. Mat 466.

180. Id. (Pregerson & Reinhardt, JJ., dissenting).

181. Id. at 466-67 (Fisher, J., dissenting).

182. Mat 468.

183. Id.

184. Id at 470.

185. See id at 468-74.

186. 42 U.S.C. �� 3613(a)(1)(A) (2006) (emphasis added).



20 1 0] RECALLING WHAT CONGRESS FORGOT 485



act that is unlawful under section 3604 . . . of this title." 187 The only relevant
actions �� 3604 makes unlawful are listed as �� 3604(f)(l)-(2). 188 These sections
make it "unlawful — . . .[t]o discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter because of a
handicap" and "[t]o discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection with such dwelling, because of a handicap." 189 Section
3604(f)(3)(C) does not provide that failure to design and construct in accordance
with the accessibility requirements is unlawful, rather, it provides that "[f]or the
purposes of this subsection, discrimination includes — . . . failure to design and
construct" covered multifamily dwellings in accordance with the accessibility
requirements. 190 According to Judge Fisher, �� 3604(f)(3)(C) is merely an
example of the kind of discrimination that becomes actionable only when it
occurs in the context of the sale or rental of a dwelling. 191

Moreover, the FHA defines an "aggrieved person" as "any person who — (1)
claims to have been injured by a discriminatory housing practice; or (2) believes
that such person will be injured by a discriminatory housing practice that is about
to occur." 192 However, the majority's reading of the statute would in many
instances start the clock running long before a building's design-and-construction
deficiencies caused anyone to become aggrieved. 193 Accordingly, Judge Fisher
maintained that the most logical reading of the FHA's statute of limitations is
that it begins to run when a person is injured by one of the actions that �� 3604(f)
prohibits, which occurs when an individual attempts to buy or rent or tests a
unit. 194 Until that point, the building's owner has not committed a discriminatory
housing practice, and the disabled individual has not been aggrieved. 195

Judge Fisher went on to argue that the majority's interpretation conflicted
with the legislative history of the FHA and Supreme Court precedent. 196 He
noted that the legislative history accompanying the Fair Housing Amendments
Act evinced Congress's intent to allow greater access to the courts and encourage
private enforcement and that the Supreme Court has approved of these goals by
repeatedly holding that courts must construe the FHA flexibly to effectuate its
broad remedial purpose. 197 Judge Fisher argued that the majority ignored these
instructions by interpreting the statute of limitations in a manner that thwarted



187. Id. �� 3602(f) (quoted in Garcia, 526 F.3d at 498 (Fisher, J., dissenting)).

1 88. Garcia, 526 F.3d at 468-69 (Fisher, J., dissenting).

189. 42 U.S.C. �� 3604(f)(l)-(2) (2006).

190. Id. �� 3604(f)(3)(C).

191 . Garcia, 526 F.3d at 470-7 1 (Fisher, J., dissenting).

192. 42 U.S.C. �� 3602(i).

193. See Garcia, 526 F.3d at 461 (majority opinion) (holding that the completion of
construction triggers the statute of limitations).

194. Id. at 469 (Fisher, J., dissenting).

195. Mat 470-71.

196. Id. at 475.

197. Id.



486 INDIANA LAW REVIEW [Vol. 43 :467



the FHA's purpose. 198

Finally, Judge Fisher supported his interpretation with a number of policy
arguments. He argued that, under the majority's interpretation, builders would
be able to disregard the FHA's accessibility requirements and shield themselves
from lawsuits simply by waiting two years before looking for tenants. 199 Judge
Fisher also noted that because there is no intent requirement in FHA design-and-
construction cases, extending the period for filing suit would not create difficult
evidentiary issues; instead, "'defendant's architectural plans and apartment
complexes can themselves speak to the alleged construction violations.'" 200
Finally, he reasoned that under his approach, real estate developers and builders
would not face such dire consequences as the majority predicted because they are
capable of shifting their liability contractually and because a variety of
individuals may be named as defendants in FHA design-and-construction suits. 201

Judges Pregerson and Reinhardt joined Judge Fisher's panel dissent but also
dissented separately to "emphasize the extent to which the majority's holding
perverts the purpose and intent of the statute." 202 They argued that the majority,
to the detriment of disabled individuals, construed the statute of limitations for
the sole benefit of the housing construction industry. 203 According to Judges
Pregerson and Reinhardt, "[Congress] did not intend to invite the developer to
assume the risk of non-compliance, in order to save construction costs, by taking
the chance that his violation of the law would remain undiscovered by the
disabled community for a period of two years." 204

IV. Garcia' s Shortcomings

The majority's decision in Garcia severely undermines plaintiffs' ability to
enforce their rights under the FHA because the statute of limitations will often
expire before any disabled individual becomes aware of the design-and-
construction deficiencies. 205 The majority's approach suffers from several
shortcomings. First, the majority adheres to an illogical reading of the statutory
language. 206 Second, the court's construction conflicts with Supreme Court
precedent. 207 Third, the court's reading of the statute conflicts with the
legislative purpose behind the FHA. 208 Fourth, the court gives no deference to



198. Id

199. Id

200. Id at 477 (quoting Silver State Fair Hous. Council, Inc. v. ERGS, Inc., 362 F. Supp. 2d
1218, 1222 n.l (D. Nev. 2005)).

201. Id

202. Id. at 466 (Pregerson & Reinhardt, JJ., dissenting).

203. Id

204. Id at 467.

205. See id. at 461 (majority opinion).

206. See id. at 470-71 (Fisher, J., dissenting).

207. Id. at 475.

208. Id



20 1 0] RECALLING WHAT CONGRESS FORGOT 487



HUD's interpretations. 209 Finally, the court bases much of its decision on
unconvincing policy arguments. 210

A. Statutory Construction

The Garcia majority contends that the language of the statute of limitations
is "clear." 211 This proposition is difficult to accept given the sharply divergent
manners in which courts have interpreted �� 3613(a)(1)(A). 212 Although some
courts have taken the majority 's approach, 213 other courts and commentators have
adopted the dissent's reasoning. 214 Still other courts have held that the statute of
limitations begins to run only when the building is brought into compliance,
reasoning that the failure to design and construct a covered multifamily dwelling
in accordance with �� 3604(f)(3)(C)'s requirements is a continuing violation. 215
Therefore, the Garcia majority's contention that the statute of limitations
provision is unambiguous in the context of design-and-construction suits is
unconvincing. In reality, the Garcia majority "f[ound] an ambiguity in the
statute and then resolv[ed] that ambiguity contrary to the overall purpose and
structure of the FHA and its legislative and judicial history." 216

The majority addressed Judge Fisher's convincing statutory construction
argument in footnotes, contending that because �� 3604(f)(3)(C) is coordinate to
��� 3604(f)(1) and (2), "treating (f)(3)(C) as subordinate makes no structural
sense." 217 Although the sections are coordinate, they are framed differently. The
introductory language of ��� 3604(f)(1) and (2) provides that "it shall be
unlawful" to do the specified acts. 218 On the other hand, �� 3604(f)(3)(C)'s
introductory language only provides that for the purposes of the subsection,
"discrimination includes" the acts listed. 219 The majority gave no support for its



209. Id

210. See id. at 476-78.

211. Id. at 466 (majority opinion).

212. See cases cited supra note 4 1 .

213. See, e.g., United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1 129, 1 141 (D. Idaho
2003); Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d 492, 501 (E.D. Va. 2002).

214. See, e.g., Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 F. App'x 469,
481 (6th Cir. 2006); Schwemm, Barriers, supra note 1, at 851.

215. See, e.g. , E. Paralyzed Veterans Ass'n, Inc. v. Lazarus-Burman Assocs., 133 F. Supp. 2d
203, 213 (E.D.N. Y. 2001) (Plaintiff "does not complain of a discrete violation of the FHA, but
instead describes an unlawful practice that . . . has continued to the present day. As such,
[Plaintiff] alleges a continuing violation which, therefore, is timely made."); Montana Fair Hous.,
Inc. v. Am. Capital Dev., Inc., 81 F. Supp. 2d 1057, 1063 (D. Mont. 1999) (holding that the FHA
is "clear" that the statute of limitations did not begin to run until the design-and-construction
defects were cured).

216. Garcia, 526 F.3d at 467 (Fisher, J., dissenting).

217. Id. at 461 n.l (majority opinion).

218. 42 U.S.C. �� 3604 (2006).

219. Id. �� 3604(f)(3).



488 INDIANA LAW REVIEW [Vol. 43:467



perplexing conclusion that the coordinate placement of the sections should
control, given the subsections' divergent statutory language.

Instead of pursuing the statutory construction argument, the majority
attempted to defend its reading of the statute by resorting to a results-based
analysis. The court reasoned that "under the dissent's interpretation, only the
party that actually does the selling or renting would be liable, not the party that
designed or constructed and FHA-noncompliant unit[.]" 220 However, according
to Professor Schwemm, "'any entity who contributes to a violation of the FHAA
would be liable.'" 221 Original builders and developers may continue to be liable
even after they sell noncompliant units. 222 Furthermore, the majority's holding
would protect builders of noncompliant units from private suits even if they
retained ownership and control over their buildings. 223

The majority also argued that the dissent's reading of the statutory language
"would make it impossible, or at least more difficult, for the Attorney General
to bring a design-and-construction claim against builders under 42 U.S.C. ��
3614(a), because design and construction of an FHA-noncompliant building
alone would not ... be actionable under the FHA." 224 A reading of �� 3614(a)
reveals the court's error: No discriminatory housing practice needs to occur for
the Attorney General to file suit against a noncompliant builder. 225 Under ��
3614(a), the Attorney General may bring a civil suit when "any person or group
of persons is engaged in a pattern or practice of resistance to the full enjoyment
of any of the rights granted by [the FHA]" or when "any group of persons has
been denied any of the rights granted by [the FHA] and such denial raises an
issue of general public importance [.]" 226 Even if construction alone does not
amount to a discriminatory housing practice, it would amount to "a pattern or
practice of resistance," and the people living in FHA-noncompliant units would
be a "group of persons denied rights" under the FHA. 227 The Attorney General
could thus file suit immediately when a builder began construction of an FHA-
noncompliant dwelling even though the construction alone does not amount to
a discriminatory housing practice.

Even if the dissent's reading of the statute did somehow limit the Attorney
General's ability to bring suit, the court did not take into consideration the



220. Garcia, 526 F.3d at 461 n.l.

221. Schwemm, Barriers, supra note 1, at 778 (quoting Baltimore Neighborhoods, Inc. v
Rommel Builders, Inc., 3 F. Supp. 2d 661, 665 (D. Md. 1998)).

222. Mat 781-90.

223 . Under the majority's approach, all parties are immunized from private suit once two years
have passed after the completion of construction. See Garcia, 526 F.3d at 461. This is the case
regardless of whether the original builder maintains ownership of the property.

224. Mat 461 n.l.

225. 42 U.S.C. ��36 14(a) (2006). The plaintiffs in Garcia made this argument in their petition
for certiorari. Petition for Writ of Certiorari at 13-14, Thompson v. Turk, 129 S. Ct. 724 (2008)
(No. 08-140).

226. 42 U.S.C. �� 3614(a).

227. Petition for Writ of Certiorari at 13-14, Thompson, 129 S. Ct. 724.



2010] RECALLING WHAT CONGRESS FORGOT 489



relative "importance of private enforcement" of the FHA. 228 In Trafficante, the
Supreme Court reasoned that "since the enormity of the task of assuring fair
housing makes the role of the Attorney General in the matter minimal, the main
generating force must be private suits [.]" 229 If a court must choose between
limiting either the Attorney General's or private persons' ability to bring suits,
the private persons' interests should take priority.

B. Conflict with Supreme Court Precedent

Garcia 's holding conflicts with long-standing Supreme Court precedent
requiring courts to construe the FHA broadly. 230 Specifically with regard to
statutes of limitation, in Havens Realty Corp. v. Coleman™ a unanimous
Supreme Court cautioned that a "wooden application" of the FHA's statute of
limitations "only undermines the broad remedial intent of Congress embodied in
the Act[.]" 232 In Garcia, the Ninth Circuit applied the statute of limitations as
rigidly as the ambiguous statutory language would allow, contrary to the
Supreme Court's instructions in Havens. 2 ^

C Conflict with Legislative Purpose

The legislative history of the Fair Housing Amendments Act demonstrates
Congress's intent that all new covered multifamily dwellings be accessible to
individuals with disabilities. 234 Garcia undercuts this purpose by protecting
builders from liability for their noncompliance. Immunizing noncompliant
parties from suit in all cases two years after they complete construction can only
breed contempt for the FHA's accessibility requirements among builders.

The legislative history also indicates that Congress intended to expand
individuals' access to the courts in enforcing their FHA rights. 235 Again,
Garcia *s holding thwarts this purpose by starting the statute of limitations clock
running so early that it may expire before any interested individual becomes
aware of the design-and-construction deficiencies in a covered multifamily
dwelling.

D. No Deference to HUD Manuals
Despite Supreme Court guidance counseling otherwise, the majority in



228. Id. at 14.

229. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972).

230. See Schwemm, Housing Discrimination, supra note 7, �� 7:2.

231. 455 U.S. 363 (1982).

232. Id. at 380.

233. See Garcia v. Brockway, 526 F.3d 456, 461 (9th Cir.) (en banc), cert, denied, 127 S. Ct.
724 (2008).

234. &*?H.R.Rep.No. 100-711, at 18,27 '-28 (1988), reprinted in 1988 U.S.C.C.A.N. 2173,
2179,2188-89.

235. See id. at 16, 39-40.



490 INDIANA LAW REVIEW [Vol. 43 :467



Garcia dismisses HUD's interpretations of the statute of limitations. 236 HUD has
not promulgated regulations addressing what event triggers the statute of
limitations in design-and-construction claims. The agency has, however, spoken
to the issue in a manual and a handbook. 237 In its Design Manual, HUD states
that with respect to the FHA's design-and-construction requirements,
"complaints could be filed at any time that the building continues to be in
noncompliance, because the discriminatory housing practice — failure to design
and construct the building in compliance— does not terminate." 238 Similarly, in
its Complaint Handbook, HUD provides that "[a] complainant aggrieved because
an otherwise covered multifamily dwelling unit was not designed and constructed
to meet the Fair Housing Accessibility Guidelines, may allege a continuing
violation regardless of when construction of the building was completed." 239
Under the applicable Skidmore standard, these interpretations are entitled to
deference only to the extent that they are persuasive, but the interpretations are
"persuasive and dovetail [] with both the statutory text and nontextual
considerations." 240

E. Unconvincing Policy Arguments

Another problem with the majority's opinion in Garcia is that it relies on
unconvincing policy arguments. For example, the court was concerned that the
dissent's more expansive reading of the statute would allow disabled individuals
to sue builders and real estate developers who failed to comply with ��
3 604(f)(3)(C) 's requirements years after they ceased to have any control over the
building. 241 This argument is unimpressive for several reasons. First, the
majority's approach immunizes builders and developers from suit two years after
they complete construction even if they retain ownership of and control over their
buildings. 242 Second, it is unclear why courts should be concerned with
protecting developers from liability they have incurred due to their own failure
to comply with the law. Third, even if protecting builders is a legitimate
concern, that interest should not supersede the interests of disabled individuals,
for whom the legislation was designed to protect. Fourth, the Fair Housing
Amendment Act's legislative history shows that Congress did not share this
concern for developers. 243 Finally, developers could seek to protect themselves
contractually by requiring purchasers to indemnify them against design-and-



236. Garcia, 526 F.3d at 462.

237. See Complaint Handbook, supra note 66, at 3-5; Design Manual, supra note 66, at
22.

238. Design Manual, supra note 66, at 22.

239. Complaint Handbook, supra note 66, at 3-5.

240. Garcia, 526 F.3d at 476 (Fisher, J., dissenting).

241 . Id. at 463 (majority opinion).

242. See id. at 477.

243. See id. at 476-77 (Fisher, J., dissenting).



20 1 0] RECALLING WHAT CONGRESS FORGOT 49 1



construction liability. 244

The Garcia majority was also concerned that the dissent's reading would
render the statute of limitations meaningless by tolling it indefinitely. 245 This is
simply not true. Under the dissent's approach, plaintiffs' suits would be time-
barred two years after they encountered the violations. 246 Even under HUD's
more expansive approach, builders would be immune from suit two years after
they remedied their design-and-construction violations. 247 In any event,
defendants could invoke the equitable doctrine of laches to defend against stale
claims. 248

Moreover, the fundamental policies justifying statutes of limitation are "at
a low ebb here." 249 Statutes of limitations serve to "protect defendants and the
courts from having to deal with cases in which the search for truth may be
seriously impaired by the loss of evidence, whether by death or disappearance of
witnesses, fading memories, disappearance of documents, or otherwise." 250
However, evidentiary issues are not a major concern in design-and-construction
cases because liability does not turn on intent. 251 A covered multifamily dwelling
either meets the accessibility requirements or it does not. 252 Nor is an interest in
preventing plaintiffs who sleep on their rights from bringing stale suits
implicated. 253 Here, no one can accuse plaintiffs who are unaware of the design-
and-construction violations until they rent or buy a dwelling of impermissible
delay.

For the foregoing reasons, the Ninth Circuit's stance in Garcia is untenable.
Although the court could have possibly reached the same result without relying
on Ledbetter, it is telling that the majority relies on and quotes from Ledbetter
much more heavily than any other Supreme Court case. 254 Other courts are also
likely to find Ledbetter controlling in FHA design-and-construction suits given
that courts interpret the FHA in light of Title VII precedents. 255 Therefore, it is
necessary to explore to what extent Ledbetter continues to be applicable in FHA
design-and-construction suits after the Ledbetter Act. Even if Garcia is not a
direct result of Ledbetter, the multiple shortcomings of the Ninth Circuit's
approach necessitate a legislative response.



244. Id. at 477.

245. Id. at 463 (majority opinion).

246. Id. at 476 (Fisher, J., dissenting).

247. Id.

248. See id. at 470 n.2.

249. Id. at 477.

250. United States v. Kubrick, 444 U.S. 111,117 (1979) (citations omitted).

25 1 . Garcia, 526 F.3d at 477 (Fisher, J., dissenting).

252. Id.

253. See Del. State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980).

254. Garcia, 526 F.3d at 462-64 (majority opinion).

255. See SCHWEMM, HOUSING DISCRIMINATION, supra note 7, �� 7:4.



492 INDIANA LAW REVIEW [Vol. 43 :467



V. Ledbetter's Continuing Applicability in FHA Cases
and the Need for a Consistent Legislative Response

When Congress overrides precedent, the common assumption may be that
courts will no longer rely on the overridden precedent. 256 However, in a recent
article, Deborah A. Widiss demonstrated that this is not the case; instead, courts
very often construe legislative overrides narrowly and continue to rely on the
overridden precedent in other contexts. 257 Widiss calls such overridden
precedent "shadow precedents." 258 Because the Ledbetter Act will not prevent
courts from applying Ledbetter as shadow precedent, Congress should pass a
legislative response making it clear that Ledbetter no longer applies in FHA
design-and-construction suits.

A. Legislative Overrides and Shadow Precedent

Widiss explores the courts' reactions to legislative overrides of several Title
VII precedents and the resulting application of shadow precedent. 259 As one
example, Widiss cites Lorance v. A T&T Technologies, Inc. , 260 where the Supreme
Court held that a plaintiffs claim of discrimination under Title VII was time-
barred. 261 The plaintiff sued when she was laid off, alleging that the employer
had originally adopted its seniority system for a discriminatory purpose. 262 The
Court held that the discriminatory act at issue was the adoption of the seniority
system and that the plaintiffs claims were untimely because she had not filed
within 180 days after the initial adoption of the system. 263

Congress overrode the decision in the 1 99 1 Civil Rights Act, which provided
that an unlawful employment practice occurs when a discriminatory seniority
system is adopted, when a person becomes subject to such a system, or when a
person is injured by such a system. 264 In the legislative history of the bill,
Congress conveyed its disapproval of courts' application of Lorance in other
contexts. 265 Nevertheless, courts continue to apply Lorance "as a shadow
precedent." 266 In fact, the Supreme Court relied heavily on Lorance and other
cases that had cited Lorance in Ledbetter? 61



256. Widiss, supra note 1 5, at 5 1 1 .

257. Mat 5 12.

258. Id.

259. Id. at 536-56.

260. Id. at 542 (citing Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989), superseded by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 107).

261. Lorance, 490 at 907-08.

262. Mat 902-03.

263. Id. at 907-08.

264. Widiss, supra note 15, at 543.

265. Id. at 544.

266. Id.

267. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 625-26, 627 n.2 (2007),
superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (to be



20 1 0] RECALLING WHAT CONGRESS FORGOT 493



As another example of shadow precedent, Widiss cites Price Waterhouse v.
Hopkins. 26 * In Price Waterhouse, the Supreme Court held that a defendant in a
Title VII action could avoid liability for discrimination by showing that it would
have made the same employment decision even if it had not taken into
consideration the plaintiffs status as a member of a group protected under Title
VII. 269 In the 1991 Civil Rights Act, Congress also overrode this decision by
amending Title VII to provide that an unlawful employment practice occurs if the
plaintiffs status as a member of a protected class is a motivating factor in an
employment decision. 270 Although the statutory language did not address related
statutes such as the ADEA and the ADA, the legislative history indicated that
courts should interpret laws modeled after Title VII in a consistent manner. 271
Despite Congress's clear repudiation of Price Waterhouse, many courts continue
to apply its reasoning in ADA and ADEA cases. 272

As Widiss's analysis makes clear, a congressional override of a Supreme
Court case does not preclude courts from continuing to follow its reasoning, even
when the legislative history indicates a contrary intent. 273 In fact, some courts
have continued to apply shadow precedent even after the Supreme Court declared
that a congressional override fully superseded the case. 274 Therefore, it is likely
that courts will continue to apply Ledbetter as shadow precedent in FHA suits.

B. Ledbetter as "Shadow Precedent"

The legislative history of the Ledbetter Act indicates Congress's intent to
repudiate not only Ledbetter 's specific holding, but also its underlying
reasoning. 275 In the House Report, Congress indicated its understanding that
Ledbetter was incorrect and that the Ledbetter Act merely clarified the law,
rather than changing it. 276 According to the House Report, the Ledbetter Act was
"designed to rectify ... the Supreme Court decision in Ledbetter" and to "restore
prior law." 277 Nevertheless, courts will most likely continue to rely on
Ledbetter. 21 * This is especially true in FHA cases, given the common



codified in scattered sections of 29 and 42 U.S.C.); Widiss, supra note 15, at 544.

268. Widiss, supra note 15, at 546 (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 107).

269. Hopkins, 490 U.S. at 258.

270. Widiss, supra note 15, at 548.

271. Mat 548-49.

272. Mat 549.

273. Id.

274. Id. at 552-53 (citing Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976), superseded by
statute, Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076).

275. Kathryn A. Eidmann, Comment, Ledbetter in Congress: The Limits of a Narrow
Legislative Override, 1 17 YALE L.J. 971, 976 (2008).

276. See H.R. Rep. No. 1 10-237, at 5-7 (2007).

277. Id. at 5-6.

278. See Eidmann, supra note 275.



494 INDIANA LAW REVIEW [Vol. 43 :467



understanding that the FHA should be interpreted in light of Title VII. 279

In the Ledbetter Act, Congress specifically provided that the override should
apply to certain related statutes, including the ADEA and the ADA. 280 This
suggests that the legislature may have learned from the disagreement among the
lower courts over whether the legislative override of Price Waterhouse applied
to related statutes. 281 But the Ledbetter Act fails to mention the FHA. Courts are
likely to reason that Congress's omission was intentional and continue to apply
Ledbetter in FHA design-and-construction cases. 282

C The Solution: A Consistent Legislative Response

Four responses to the statute of limitations issue presented in Garcia are
available. The first response is not to respond; courts could be left to sort out the
issue on their own. Second, HUD could promulgate regulations overriding or
modifying Garcia 's holding. Third, the Supreme Court could address the issue.
Finally, Congress could respond legislatively. For the reasons discussed below,
a congressional response is the best alternative to ensure that courts will
consistently interpret the statute of limitations in design-and-construction suits
according to the legislative intent.

1. Allowing Lower Courts to Develop an Appropriate Response. — One
option is to allow the lower courts to sort out the statute of limitations issue.
This approach is undesirable because relevant case law demonstrates that the
courts are unable to come to a consensus regarding the issue. 283 This uncertainty
is unfair to both plaintiffs and defendants because liability depends not on the
violation, but on the locale. Moreover, the instability wastes trial courts' scarce
resources. Because there is little binding precedent on point, 284 trial courts must
reinvent the wheel each time they are confronted with a design-and-construction
timeliness issue.

2. HUD Regulations. — Another option is that HUD could promulgate
regulations to overturn Garcia. As mentioned earlier, HUD regulations are
generally entitled to Chevron deference. 285 Thus, courts must defer to HUD's
administrative regulations to the extent that they are reasonable, as long as they
do not violate the statute's plain language. 286 This approach is problematic



279. See SCHWEMM, HOUSING DISCRIMINATION, supra note 7, �� 7:4.

280. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 1 1 1-2, ��� 4-5, 123 Stat. 5, 6 (to be
codified at scattered sections of 29 and 42 U.S.C.).

28 1 . See Widiss, supra note 1 5, at 549.

282. See Eidmann, supra note 275, at 974.

283. See supra note 41 and accompanying text.

284. See Garcia v. Brockway, 526 F.3d 456 (9th Cir.) (en banc), cert, denied 129 S. Ct. 724
(2008); Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 F. App'x 469 (6th Cir.
2006) (unpublished), cert, denied, 128 S. Ct. 880 (2008). Because Village of Olde St. Andrews is
unpublished, it is not binding precedent within the Sixth Circuit. Id. at 469.

285. See SCHWEMM, HOUSING DISCRIMINATION, supra note 7, �� 7:5.

286. Id.



20 1 0] RECALLING WHAT CONGRESS FORGOT 495



because courts following Garcia" s reasoning could conclude that the statutory
language mandates a contrary result and disregard the regulations. 287 Thus, even
if HUD promulgated regulations to settle the statute of limitations question, in
reality, these regulations may have little effect.

3. A Supreme Court Decision. — Another way to resolve the confusion
around timeliness in FHA design-and-construction suits is a Supreme Court
decision. It is unclear whether the Supreme Court would grant certiorari on an
FHA design-and-construction case any time soon. Although the Court has denied
certiorari in both circuit court cases addressing the issue, those cases have now
created a circuit split, 288 which means that future petitions may garner more
attention from the Court.

But even if the Supreme Court grants certiorari in a future case, the Court's
decision might not reflect the legislative intent behind the FHA. Several
commentators have argued that the current Supreme Court has inappropriately
weakened the protections of civil rights laws. 289 This proposition finds support
in the fact that Congress has recently felt obliged to legislatively override several
Supreme Court decisions which constricted the protections of civil rights
statutes. 290 Therefore, even though a Supreme Court decision would settle the
confusion surrounding FHA design-and-construction claims, it is quite possible
that the Court's decision would actually further constrict the FHA's protections.

4. A Consistent Legislative Response. — The final and most desirable option
is for Congress to pass a legislative response to Garcia consistent with its recent
legislative response to Ledbetter. A clear congressional pronouncement would
settle the confusion among the lower courts and allow plaintiffs and defendants
to establish realistic expectations regarding their rights and responsibilities.

A legislative response to Garcia similar to the Ledbetter Act is desirable
because Garcia 's shortcomings are similar to Ledbetter 's. Much like Ledbetter
ignored the realities of wage discrimination, 291 Garcia ignores the realities of
disability discrimination by starting the statute of limitations clock so early that
few disabled individuals will even become aware of the design-and-construction
deficiencies until the statute of limitations has already run. Similarly, as
Ledbetter undermined Title VII' s protections by unduly restricting the statute of



287. See Garcia, 526 F.3d at 46 1 , 466 (holding that the statutory language clearly required the
statute of limitations to begin running upon the completion of construction).

288. See id. at 456; Vill ofOlde St. Andrews, 210 F. App'x at 481.

289. See Robert G. Schwemm, Cox, Halprin, and Discriminatory Municipal Services Under
the Fair Housing Act, 41 Ind. L. REV. 7 1 7, 720 (2008); Rochelle Bobroff, Why We Can 't Wait:
Reversing the Retreat on Civil Rights: The Early Roberts Court Attacks Congress 's Power to
Protect Civil Rights, 30N.C. CENT. L.J. 231 (2008).

290. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 1 1 1 -2, 1 23 Stat. 5 (overriding Ledbetter
v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)); ADA Amendments Act of 2008, Pub. L.
No 1 10-325, 122 Stat. 3553 (overriding Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184
(2002) and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)).

29 1 . Lilly Ledbetter Fair Pay Act, �� 2, 1 23 Stat, at 5 (to be codified at 42 U.S.C. �� 2000e-5).



496 INDIANA LAW REVIEW [Vol. 43:467



limitations, 292 Garcia constricts the statute of limitations for, and therefore the
rights granted by, the FHA.

A legislative response to Garcia would probably meet with less resistance
than the Ledbetter Act. Some opponents of the Ledbetter Act argued that it
would create serious evidentiary problems for defendants who, to defend against
discrimination claims, must be able to explain not only their actions but also their
intentions. 293 Employers may not be in a position to present information
regarding intent years later, when witnesses may have retired; documents may
have been lost; and memories may be hazy. 294 However, intent is not required in
FHA design-and-construction cases and these evidentiary concerns do not
apply. 295

To settle the statute of limitations issue for design-and-construction claims,
Congress should not expand the FHA's statute of limitations. Rather, the
legislature should pass an amendment to the FHA that tracks the language of the
Ledbetter Act. The amendment should clarify the definition of "discriminatory
housing practice" in �� 3602(f). 296 Similar to the Ledbetter Act, Congress should
provide that with respect to design-and-construction violations, several events
constitute discriminatory housing practices. These events should include the
design and construction of a noncompliant dwelling, when a person encounters
a noncompliant dwelling, and when a person is injured by the existence of a
noncompliant dwelling. 297 This clarification would ensure that courts will
interpret the FHA's design-and-construction provisions in a manner consistent
with the legislative intent that all new covered multifamily dwellings be
constructed in a manner that makes them accessible to individuals with
disabilities without rendering the statute of limitations meaningless. 298

Conclusion

Ledbetter 's continuing applicability in FHA design-and-construction suits is
symptomatic of a larger issue. It is accepted that courts should construe the FHA



292. Id.

293. Impact of Ledbetter Decision on Enforcement of Civil Rights Laws: Hearing on 2831
Before the Subcomm. on the Constitution, Civil Rights, And Civil Liberties and the H. Comm. on
the Judiciary, 110th Cong. (2007) (statement of Neal D. Mollen, Chair, Washington, D.C.
Employment Law Department, Paul, Hastings, Janofsky & Walker LLP).

294. Id.

295. Garcia v. Brockway, 526 F.3d 456, 477 (9th Cir.) (Fisher, J., dissenting), cert, denied,
129 S. Ct. 724 (2008).

296. 42 U.S.C. �� 3602(f) (2006).

297. In Garcia, the court noted that adopting Professor Schwemm's encounter theory would
give rise to equitable issues because testers could always restart the limitations clock by revisiting
the property. 526 F.3d at 465. Congress could address this issue by requiring the statute of
limitations to run from the date of the first encounter or by limiting tester standing.

298. See H.R. Rep. No. 100-71 1, at 18, 23 (1988), reprinted in 1988 U.S.C.C.A.N. 2173,
2179,2184.



2010] RECALLING WHAT CONGRESS FORGOT 497



with reference to Title VII precedents. 299 However, Congress has not taken the
FHA into consideration when passing narrow legislative overrides of Title VII
precedent. 300 When Congress fails to address the FHA in its legislative overrides,
courts may interpret the legislative silence as approval of the courts' continued
application of harmful precedent. 301 Once again, "the ball is in Congress's
court." 302 The Ledbetter Act fails to mention the FHA, and courts are likely to
continue to apply Ledbetter to narrowly construe the statute of limitations in
design-and-construction cases. A legislative solution is necessary to rectify
Ledbetter 's harmful effects on the civil rights protections Congress created in the
FHA for individuals with disabilities.



299. Schwemm, Housing Discrimination, supra note 7, �� 7:4.

300. See, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 1 1 1-2, 123 Stat. 5 (to be
codified in scattered sections of 29 and 42 U.S.C.).

30 1 . See Eidmann, supra note 275, at 974.

302. See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 661 (2007) (Ginsburg, J.,
dissenting), superseded by statute, Lilly Ledbetter Fair Pay Act, 123 Stat. 5.



You Shall Always Be My Child: The Due Process

Implications of Paternity Affidavits Under

Indiana Code Section 16-37-2-2.1



Kayla Britton



Introduction

The phone rang. From hundreds of miles away, Jason 1 learned that he was
going to be a father. Kendra was born a few months later, and Jason's life
changed forever. This father and daughter share a special bond, one that no law
should sever.

Jason is one of the lucky ones. Many unwed fathers will never know their
children. Indiana denies all fathers who do not marry the mother, or execute a
paternity affidavit, the protections of legal paternity. 2 Whether the father knew
of the pregnancy or attempted to have contact during or shortly after the
pregnancy is immaterial. 3 His failure to act, regardless of whether he knew he
had a duty to act, serves as an implied waiver of his interest in his child. 4 The law
shows no sympathy for the plight of many unwed fathers.

Indiana denies nonmarital fathers fundamental due process rights. Indiana's
paternity laws ensnare some unwitting fathers into assuming paternity of children
without full disclosure of what they are signing. 5 Worse still, Indiana denies
many unwed fathers the opportunity to ever develop a relationship with their
children because those fathers never learn the mother was pregnant. 6 Speedy
determination of paternity cannot justify such a high cost. With approximately
forty percent of births occurring outside of marriage, 7 Indiana urgently needs to



* J.D. Candidate, 2010, Indiana University School of Law — Indianapolis; B.A., 2006,
Purdue University, West Lafayette, Indiana. I would like to thank my eternally devoted husband,
Kerby, who patiently endured the writing process and was always more than willing to be my
sounding board. I owe all of my achievements to him. I would also like to thank Professor Jennifer
Drobac and Master Commissioner Alicia Gooden for their helpful thoughts on my topic. Finally,
I would like to thank my stepdaughter, Teeya, for having the courage to go for what she wants. She
is my inspiration in everything I do.

1 . Names have been changed, but the depicted story is true.

2. SeelM). CODE ���31-14-7-1, -2-1 (2008).

3. See In re Paternity of Baby Doe, 734 N.E.2d 28 1 , 287 (Ind. Ct. App. 2000) (placing the
burden on the putative father to inquire about pregnancy or risk forfeiture of right to object to the
adoption).

4. See, e.g. , Ind. Code �� 3 1 - 1 9-9- 1 5(a) (2008) (noting that the "father's consent to adoption
... is irrevocably implied" if he fails to file a paternity action).

5. See, e.g., In re Paternity of M.M., 889 N.E.2d 846, 849 n.l (Ind. Ct. App. 2008).

6. See, e.g., In re Paternity of Baby Doe, 734 N.E.2d at 287.

7. Pub. Health Sys. Dev. & Data Comm'n, Data Analysis Team, Ind. State Dep't of
Health, Indiana Natality Report — 2006, tbl. 25 (2008), http://www.in.gov/isdh/reports/
natality/2006/tbl25a.htm (showing that Indiana's birth rate among unmarried women was 41.2%
in 2006); see Brady E. Hamilton et al., Ctr. for Disease Control, National Vital



500 INDIANA LAW REVIEW [Vol. 43 :499



reexamine the state's approach to paternity determinations.

Indiana must approach paternity in a new way, and this Note offers new
framework to that effect. This Note references three different categories of men
in discussing this sensitive issue. "Biological fathers" are men who are
biologically related to the child in question. "Legal fathers" are men who have
completed a paternity affidavit, 8 but may not be biological fathers. "Putative
fathers" are potential fathers. 9

Part I of this Note provides an overview of the legal developments for unwed
fathers and specifically focuses on how the U.S. Supreme Court has defined the
rights of the unwed father. Part II describes the social and legal background in
which Indiana's paternity law has developed. Part III outlines Indiana's approach
to voluntary acknowledgement of paternity and Indiana's public policy regarding
nonmarital children. Part IV explores the constitutional problems with Indiana's
treatment of unwed fathers. Part V proposes a new framework for Indiana's
approach to paternity, including increased notice prior to execution of the
paternity affidavit and encouragement of genetic testing, legal recognition of dual
paternity, and enhanced putative father registries.

I. The Evolution of the Rights of Unwed Fathers

Under the common law, "an illegitimate child is filius nullius [the son of
nobody 10 ], and can have no father known to the law." 11 The law denied
illegitimate children many rights available to marital children, such as the rights
to inherit, to receive support from the father, and to bring certain tort actions. 12
The U.S. Supreme Court has since rejected blanket discriminations against
nonmarital children. 13 Nevertheless, public policy still generally disfavors
illegitimacy. 14



Statistics Report 4 (2007), http://www.cdc.gov/nchs/data/nvsr/nvsr56/nvsr56_07.pdf (indicating
that the national birth rate for unmarried women was 38.5% in 2006).

8. See discussion infra Part III.

9. Indiana defines a putative father as a man who is neither the presumed biological father
nor the legal father. Ind. Code �� 3 1-9-2-100 (2008).

10. In re Paternity of E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007) (citing In re
Paternity of H.J.B., 829 N.E.2d 157, 160 (Ind. Ct. App. 2005)).

11. Lessee of Brewer v. Blougher, 39 U.S. 178, 198 (1840).

12. Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy o/Michael H.
v. Gerald D., 65 TUL. L. Rev. 585, 588 (1991).

13. See Gomez v. Perez, 409 U.S. 535, 538 (1973) ("[A] State may not invidiously
discriminate against illegitimate children by denying them substantial benefits accorded children
generally."); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76 (1972) (holding that Louisiana
may not deny equal recovery from workmen's compensation claims for illegitimate children); Levy
v. Louisiana, 391 U.S. 68, 71-72 (1968) (holding that denying recovery for the mother's wrongful
death based solely on the child's illegitimacy is invidious discrimination in violation of the Equal
Protection Clause).

14. See In re Paternity ofE.M.L.G., 863 N.E.2d at 869.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 50 1



Although the Supreme Court rejected the unequal treatment of nonmarital
children under the U.S. Constitution, it has hesitated to extend such protection to
the unwed fathers. 15 On several occasions, the Court has addressed the nature of
an unwed father's interest in his child. 16 The unanswered questions left by its
opinions indicate the Court's unwillingness to define the precise interest an
unwed father has in his child. 17 The states retain the discretion to define a
nonmarital father's interest in his child. 18

A. 1972: Stanley v. Illinois 79

Joan and Peter Stanley lived together intermittently as unwed romantic
partners for eighteen years and had three children together. 20 When Joan died,
Illinois took the children into custody. 21 Under state law, nonmarital children
became wards of the state if the mother died. 22 Whether Peter was unfit to be a
father was irrelevant under the statute. 23 He was unfit simply because he had
never married the mother. 24

Peter challenged the statute under the Equal Protection Clause of the
Fourteenth Amendment. 25 The State presumed that all married fathers were fit,
but all unmarried fathers were unfit. 26 The Court held that this type of "procedure
by presumption" violated Peter's due process rights. 27 As a matter of due process,
he was entitled to a fitness hearing before he lost custody of his children. 28
Denying a hearing for unmarried fathers while allowing for a hearing for all other
parents who risk losing custody of their children violated the Equal Protection
Clause. 29

The Court emphasized the strong interest a parent has in the child that he has
"sired and raised." 30 The decision also displays the Court's discomfort with
"procedure by presumption," noting that when "the procedure forecloses the
determinative issues of competence and care, when it explicitly disdains present



15. See infra Parts I.A-E.

16. See infra Parts I.A-E.

17. See infra Parts I.A-E.

1 8. Rebeca Aizpuru, Note, Protecting the Unwed Father 's Opportunity to Parent: A Survey
of Paternity Registry Statutes, 18 REV. LlTIG. 703, 708 (1999).

19. 405 U.S. 645 (1972).

20. Id at 646.

21. Id.

22. Id.

23. Id. at 647.

24. Id. at 646-47.

25. Mat 647.

26. Id.

27. Id. at 656-57.

28. Mat 658.

29. Id.

30. Mat 651.



502 INDIANA LAW REVIEW [Vol. 43 :499



realities in deference to past formalities, it needlessly risks running roughshod
over the important interests of both parent and child." 31 State convenience or the
government's interest in "prompt efficacious procedures" 32 was insufficient to
overcome Peter's "substantial" 33 interest in the custody of his children. 34

B. 1978: Quilloin v. Walcott 35

Randall Walcott wanted to adopt his stepson, a nonmarital child. 36 Randall
had lived with his stepson for seven years. 37 The biological father, Leon Quilloin,
never sought custody or legitimated the child and "had provided support only on
an irregular basis." 38 The child was eleven years old when Randall filed the
adoption petition, 39 and the child expressed his desire for Randall to adopt him. 40
The child also wanted to continue visitation with his biological father after the
adoption. 41 He had visited his biological father "on 'many occasions,'" but the
mother concluded that the visits were having a negative impact on her family, 42
including her younger son. 43

Georgia statutorily provided only the mother of the nonmarital child with the
right to veto an adoption, unless the biological father legitimates the child. 44 The
mother, in this case, consented to Randall's adoption of her son. 45 Leon
subsequently filed an objection to the adoption proceeding and a petition for
legitimation. 46

The trial court ruled that the adoption was in the child's best interests. 47 The
court never ruled that Leon was unfit, but it did determine that neither
legitimation nor visitation rights were in the best interests of the child. 48 The
Georgia Supreme Court affirmed the trial court relying on "the strong state policy
of rearing children in a family setting, a policy which . . . might be thwarted if



31. Mat 656-57.

32. Mat 656.

33. Mat 652.

34. See id. at 656-57.

35. 434 U.S. 246(1978).

36. Mat 247.

37. See id.

38. Mat 251.

39. Id. at 249.

40. Mat 251.

41. Mat251n.ll.

42. Id. at 251.

43. Id. at 251 n.10.

44. Id. at 248-49 (citations omitted).

45. Id. at 247.

46. Id. at 249-50.

47. 7a 7 . at 251.

48. Id.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 503



unwed fathers were required to consent to adoptions." 49

The U.S. Supreme Court found that the best interests of the child standard
adequately protected Leon's interests. 50 The adoption would "give full
recognition to a family unit already in existence, a result desired by all concerned,
except [Leon]." 51 The Court ignored the child's desire to have continued
visitation with Leon because the state adoption statute required full termination
of the biological father's rights. 52

Randall and the mother contended that the procedure did not violate Leon's
due process rights because "any constitutionally protected interest appellant might
have had was lost by his failure to petition for legitimation during the [eleven]
years prior to [the] filing of Randall Walcott's adoption petition." 53 The Court
was wary of resting its decision on that assertion because Leon was not aware of
the legitimation process until after Randall filed his adoption petition. 54

The Court also noted that the states could grant an unwed father "less veto
authority" than a married father. 55 The dispositive factor for the Court was the
unwed father's level of "commitment to the welfare of the child." 56 Leon had
never taken full responsibility for the daily care of his child, 57 but Randall had
been an active, custodial father for nine years. 58

Quilloin v. Walcott is a landmark case because it is the first time the Court
suggested that "a biological connection alone is insufficient to obtain full,
constitutionally protected, parental rights." 59 This suggestion is troubling because
the Court ignored the conflicting desire of the child to visit his biological father
and the desire of the mother to restrict Leon's access to his child. Leon's
restricted access denied him the opportunity to establish the type of relationship
the Court was willing to protect. It is also unreasonable to compare a stepfather
who has custody of the child by virtue of his marriage to the mother to an
unmarried, noncustodial father who does not reside with the mother. The
unmarried father cannot become part of the existing family unit, and the Court
seemingly punishes him for a situation he cannot realistically rectify.

C 1979: Caban v. Mohammed 60
Abdiel Caban and Maria Mohammed never married, cohabited for five years,



49.


Id. at 252.


50.


Id. at 254.


51.


Id. at 255.


52.


A/.at251n.ll.


53.


Id at 254.


54.


Id.


55.


Id. at 256.


56.


See id.


57.


Id.


58.


See id. at 247, 251.


59.


Kisthardt, supra note 12, at 600


60.


441 U.S. 380(1979).



504 INDIANA LAW REVIEW [Vol. 43 :499



and had two children together. 61 After the couple split, Maria married Kazin
Mohammed. Maria's mother, Delores, took the two children with her to Puerto
Rico, where Maria and Kazin planned to move. 62 Abdiel remained in contact
with the children while they were in Puerto Rico. 63 One year later, Abdiel went
to Puerto Rico to visit the children. 64 The grandmother let him take the children
for a few days, but he returned with them to New York. 65 Maria learned that the
children were in Abdiel' s custody, and she enlisted the help of the police to get
the children back. 66 Maria then instituted custody proceedings and the court
granted her temporary custody. 67 Abdiel received visitation rights. 68 Maria and
Kazin filed an adoption proceeding, and Abdiel cross-petitioned for adoption. 69

Under the New York adoption statute, an unwed mother may block the
adoption of her child "simply by withholding [her] consent." 70 To prevent the
termination of his parental rights, an unwed father must establish that the
adoption of his biological child would not be in the best interests of the child. 71
Abdiel alleged that this statutory scheme violated his equal protection and due
process rights. 72

The trial court granted Kazin 's adoption petition, terminating Abdiel' s
parental rights. 73 The appellate court affirmed, and Abdiel appealed to the U.S.
Supreme Court. 74 The Court held that the New York's statute's "distinction . . .
between unmarried mothers and unmarried fathers . . . does not bear a substantial
relation to the State's interest in providing adoptive homes for its illegitimate
children." 75 The Court's holding seemed to be limited to established parent-child
relationships in which the mother and father are similarly situated in the degree
of their relationship with the child. 76



61. Mat 382.

62. Id.

63. Id. at 383.

64. Id.

65. Id.

66. Id.

67. Id.

68. Id.

69. Id.

70. Mat 385-86.

71. Mat 386-87.

72. Id. at 384.

73. Mat 383-84.

74. Mat 384-85.

75. Mat 391.

76. See id. at 389.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 505



D. 1983: Lehr v. Robertson



77



Jessica was born out of wedlock in November 1 976. 78 Her mother married
Richard Robertson eight months after her birth. 79 In December 1978, Jessica's
stepfather filed an adoption petition. 80 One month later, Jessica's biological
father, Jonathon Lehr, filed for a determination of paternity, support order, and
visitation rights. 81 The Robertsons filed for a change of venue, and Lehr first
received notice of the pending adoption proceeding when he received the motion
for change of venue. 82

New York law required that certain classes of putative fathers receive notice
of a pending adoption proceeding:

[T]he persons whose names are listed on the putative father registry, . .
. those who have been adjudicated to be the father, those who have been
identified as the father on the child's birth certificate, those who live
openly with the child and the child's mother and who hold themselves
out to be the father, those who have been identified as the father by the
mother in a sworn written statement, and those who were married to the
child's mother before the child was six months old. 83

Lehr did not fit into any of these categories. 84 He lived with Jessica's mother
prior to Jessica's birth and visited her in the hospital after the birth. 85 However,
his name did not appear on her birth certificate, and he never filed with the state
putative father registry. 86 As a result, he never received notice of the adoption
proceeding. 87 Knowing of the pending paternity determination action, the judge
granted the stepfather's adoption petition. 88

Lehr moved to vacate the adoption order. 89 The Ulster County Family Court
denied his motion and found that it did not have to give him notice of the
adoption. 90 The Appellate Division of the Supreme Court held that Lehr's
paternity action did not give him the right to receive notice of the adoption, and
the notice provisions of the New York statute were constitutional. 91 The New



77. 463 U.S. 248(1983).

78. Id at 250.

79. Id

80. Id

81. Mat 252.

82. Mat 252-53.

83. Id at 251.

84. Mat 25 1-52.

85. Mat 252.

86. Mat 25 1-52.

87. See id. at 253.

88. Id

89. Id

90. Id

91. Id at 253-54 (citing In re Adoption of Jessica "XX," 434 N.Y.S.2d 772 (App. Div.



506 INDIANA LAW REVIEW [Vol. 43 :499



York Court of Appeals acknowledged that "it might have been prudent to give
notice," but it nevertheless concluded that the trial court had not abused its
discretion by granting the adoption petition without giving Lehr notice. 92

Lehr appealed to the U.S. Supreme Court on due process and equal protection
grounds. 93 The Court emphasized that when a nonmarital father participates in
his child's life and assumes the responsibilities of fatherhood, then the parent-
child relationship "acquires substantial protection under the Due Process
Clause." 94 A biological link alone, the Court recognized, is not enough to acquire
constitutional protection. 95 The Court did not completely disregard the
significance of a biological connection:

The significance of the biological connection is that it offers the natural
father an opportunity that no other male possesses to develop a
relationship with his offspring. If he grasps that opportunity and accepts
some measure of responsibility for the child's future, he may enjoy the
blessings of the parent-child relationship and make uniquely valuable
contributions to the child's development. If he fails to do so, the Federal
Constitution will not automatically compel a state to listen to his opinion
of where the child's best interests lie. 96

The Court suggested that the ideal scenario is for the biological father to assume
parental responsibilities, as opposed to any other man willing to assume the
responsibilities.

The Court rejected Lehr's due process claim because he had not assumed
parental responsibilities, 97 and his right to receive notice was fully within his
control. 98 New York had adequately protected his interest in forming a
relationship with Jessica by allowing him to register as a putative father. 99 The
Court found irrelevant Lehr's possible lack of knowledge of the putative father
registry. 100

The Court also found that the statute satisfied the Equal Protection Clause
because the mother and father were not "similarly situated with regard to their
relationship with the child." 101 Jessica's mother established a full parental
relationship with her child, while Lehr had not. 102 Therefore, New York could



1980)).




92.


Id. at 254-55 (citing In re Adoption of Jessica "XX," 430 N.E.2d 896 (N.Y. 1981)).


93.


Id. at 255.


94.


Mat 261.


95.


Id


96.


Id. at 262.


97.


Id.


98.


Id. at 263-64.


99.


Id. at 262-64.


100.


Id. at 264.


101.


Id. at 267.


102.


Id.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 507



treat the two parents differently. 103

The different views of the majority and the dissent of three Justices illustrate
the divergence of opinions that has developed over the last four decades with
regard to the rights of unwed fathers. Justice White described the '"nature of the
interest' at stake ... is the interest that a natural parent has in his or her child, one
that has long been recognized and accorded constitutional protection." 104 In this
view, the biological relationship alone creates the liberty interest. 105 The degree
of development in the parent-child relationship relates to the weight of the
interest, not whether the interest is cognizable. 106 Because the State did not
provide the putative father adequate notice, the State deprived Lehr due process
of law, according to Justice White. 107

The dissent also noted that Lehr alleged a different version of the facts.
According to Lehr, the mother concealed her location from him after the child's
birth, and she refused his financial support of the child. 108 The mother also
threatened to have Lehr arrested if he tried to visit his daughter. 109 Justice White
contended that based on the lack of a developed factual record, the Court must
assume that Lehr would have had "the kind of significant relationship that the
majority concedes is entitled to the full panoply of procedural due process
protections" if it were not for the actions of the mother. 110 The majority denied
Lehr full constitutional protection as a result of a situation that was largely out of
his control.



E. 1989: Michael H. v. Gerald D.



in



Victoria was born of an "adulterous affair." 112 Carole, her mother, was
married to Gerald, but Victoria's biological father was Michael. 113 At different
points during the first three years of Victoria's life, both men held her out as their
child. 114 After Carole's presumably permanent reconciliation with Gerald,
Michael and Victoria, through a guardian ad litem, sued for visitation. 115 Gerald
moved for summary judgment because California state law provided that a
married woman's child was presumptively her husband's, as long as the couple



103.


Id. at 267-68.


104.


Id. at 270 (White, J., dissenting)


105.


Id. at 272.


106.


Id.


107.


Id. at 276.


108.


Id. at 269.


109.


Id.


110.


Mat 271.


111.


491 U.S. 110(1989).


112.


Mat 113.


113.


Id. at 113-14.


114.


Mat 114-15.


115.


Mat 115.



508 INDIANA LAW REVIEW [Vol. 43 :499



was cohabitating, and the husband was not impotent or sterile. 116

The state courts denied relief for Michael and Victoria, and they appealed to
the U.S. Supreme Court. 117 The Court denied Michael's claim of procedural and
substantive due process violations. 118 First, the Court found that the presumption
within the state law did not violate procedural due process. 119 Second, Michael
did not have a substantive due process claim because his asserted liberty interest
was not "rooted in history and tradition." 120 According to the majority,
relationships like Michael and Victoria's have not been treated as a "protected
family unit." 121 History has favored the "marital family." 122

The Court rejected Victoria's claims of due process and equal protection
violations. Her due process claim "is the obverse of Michael's and fails for the
same reasons." 123 Victoria contended that her equal protection claim should
receive strict scrutiny because the state statute discriminates against her because
of her illegitimacy. 124 The Court refused to apply strict scrutiny because Victoria
is not legally illegitimate. 125 Under rational basis review, Victoria's claim failed
because the state interest in enacting the statute was to preserve marital families,
and allowing unwed fathers to interfere would disrupt the family. 126 The Court
found that the statute was rationally related to legitimate governmental interests,
and it therefore denied Victoria's equal protection claim. 127

In dissent, Justice Brennan argued that the plurality should not rely on history
and tradition to determine whether the Constitution protects a liberty interest. 128
The dissent argued that the Constitution should have the ability to adapt to
changing social mores:

We are not an assimilative, homogeneous society, but a facilitative,
pluralistic one, in which we must be willing to abide someone else's
unfamiliar or even repellent practice because the same tolerant impulse
protects our own [idiosyncrasies]. . . . The document that the plurality
construes today is unfamiliar to me. It is not the living charter that I have
taken to be our Constitution; it is instead a stagnant, archaic, hidebound
document steeped in the prejudices and superstitions of a time long past.
This Constitution does not recognize that times change, does not see that



116.


Id,


117.


Mat 115-17.


118.


Id. at 121, 127.


119.


Id. at 121.


120.


Mat 123.


121.


Id. at 124.


122.


Id.


123.


Mat 131.


124.


Id.


125.


Id.


126.


Id.


127.


Mat 131-32.


128.


Id. at 136-41 (Brennan, J., dissenting)



20 1 0] YOU SHALL ALWAYS BE MY CHILD 509



sometimes a practice or rule outlives its foundations. 129

The liberty interest involved in this case is the parent-child relationship. 130 The
Court already recognized that this interest must receive constitutional
protection. 131 The Court previously prevented any state "from denying important
interests or statuses to those whose situations do not fit the government's narrow
view of the family." 132

Justice White's dissenting opinion noted that the State's interest in preventing
illegitimacy was no longer relevant. 133 Blood tests can provide proof of paternity,
and fathers like Michael are not trying to repudiate fatherly responsibilities. 134 It
is relatively commonplace for children to live apart from their biological father
but continue to maintain a relationship with him. 135

Justice White also noted the disconnect between the plurality's holding and
Lehr v. Robertson. 136 In Lehr, the Court required that an unwed father must
"grasp" the opportunity to develop a relationship with his child to have a
constitutionally protected interest. 137 Michael did exactly that, yet the plurality
refused to recognize his interest in a relationship with his daughter. 138 The result
rendered Michael "a stranger to his child." 139

II. "Deadbeat Dad": The Scarlet Letter 140 of the
Modern Unwed Father

"Speak, woman!" said another voice, coldly and sternly, proceeding from
the crowd about the scaffold. "Speak; and give your child a father!"

"I will not speak!" answered Hester, turning pale as death, but
responding to this voice, which she too surely recognized. "And my
child must seek a heavenly Father; she shall never know an earthly

one!" 141

Scholars generally regard Hester Prynne as a courageous heroine, while many



129. Mat 141.

130. Id. at 141-42.

131. Id. (citing Meyer v.Nebraska, 262 U.S. 390,399(1923)).

1 32. Id at 145 (citing Moore v. E. Cleveland, 43 1 U.S. 494 (1977); Gomez v. Perez, 409 U.S.
535 (1973); Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73 (1968); Levy v. Louisiana, 391
U.S. 68 (1968); Loving v. Virginia, 388 U.S. 1 (1967)).

133. Id. at 161-62 (White, J., dissenting).

134. Id.

135. Mat 162.

136. Id. at 163.

137. Lehr v. Robertson, 463 U.S. 248, 262 (1983).

138. Michael H., 491 U.S. at 163 (White, J., dissenting).

139. Id.

140. See Nathaniel Hawthorne, The Scarlet Letter (Penguin Books 2003) ( 1 850).

141. Id. at 63.



5 1 INDIANA LAW REVIEW [Vol. 43 :499



think of her lover, Dimmesdale, as the weak, egotistical father, who selfishly
refuses to confess his sins and support his child and her mother. 142 He is an
unsympathetic character, and readers generally feel little sorrow upon his death. 143

In modern society, Dimmesdale is the character who would wear the letter of
shame. Rather than a scarlet "A," he would bear the stigmatized label "Deadbeat
Dad." 144 He would likely receive even less sympathy in current American society
than he did in seventeenth-century Puritanical Boston.

Modern society recognizes two types of deadbeat dads. The first category is
the father who does not pay his child support. 145 The second category is the
unwed father who never establishes his paternity. 146 Although fathers who choose
to abandon their families or refuse to support their children likely deserve little
sympathy, many fathers may appear to fit into the definitions of deadbeat dad
without even knowing of the child's birth. 147

Public focus with regard to deadbeat dads has been on stigmatizing those men
and reducing the government's financial burden of caring for the single mothers
and their children. 148 The legislative focus has similarly been on reducing welfare
costs. 149 Chapter 7, Title IV, Part D of the Social Security Act ("Title IV-D")
established a child support enforcement program as part of welfare reform. 150 The
goal of Title IV-D is to improve the effectiveness of child support programs, with
paternity determinations as its primary means of accomplishment. 151

The states must comply with the legislative goals of Title IV-D in exchange
for federal funding. 152 In addition to the appropriations provided to states for
Title IV-D enforcement, 153 states also receive "incentive payments" based on the



1 42 . See, e.g. , NINA B AYM, Introduction to NATHANIEL HAWTHORNE, THE SCARLET LETTER,
at vii, xviii-xx (Penguin Books 2003) (1850).

143. Id. at xx.

144. See William J. Doherty et al., Responsible Fathering: An Overview and Conceptual
Framework, 60 J. MARRIAGE and Fam. 277, 279 (1998) (describing the moral undertone of the
term "deadbeat dad").

1 45 . See Drew D. Hansen, Note, The American Invention of Child Support: Dependency and
Punishment in Early American Child Support Law, 108 YALE L.J. 1 123, 1 123-24 (1999) ("The
villain in the child support reform story is the 'deadbeat dad' who does not pay child support. . .

. Americans today conceptualize child support in terms of preventing dependency and in terms of
punishing those who 'cause' dependency.").

146. See Doherty et al., supra note 144, at 279 (noting that "[djeclaring legal paternity is the
sine qua non of responsible fathering").

147. See supra notes 3-4 and accompanying text.

148. See Hansen, supra note 145, at 1 123-24.

149. See id.

150. 42 U.S.C. �� 666 (2006).

151. Id. �� 65 1 ; see Jayna Morse Cacioppo, Note, Voluntary Acknowledgments of Paternity:
Should Biology Play a Role in Determining Who Can Be a Legal Father?, 3 8 Ind. L. REV. 479, 486
(2005).

1 52. Cacioppo, supra note 1 5 1 , at 486.

153. See 42 U.S.C. �� 651 (2006).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1 1



state's performance pursuant to Title IV-D's goals. 154 Specifically, Title IV-D
bases the state's incentive payments on its paternity establishment, support order,
current payment, arrearage payment, and cost-effectiveness performance levels. 155

Under Title IV-D, states must establish "[e]xpedited administrative and
judicial procedures ... for establishing paternity and for establishing, modifying,
and enforcing support obligations." 156 States must also establish procedures for
voluntary paternity acknowledgement. 157 The voluntary paternity
acknowledgement procedures in each state must include a "simple civil process"
in which the mother and father can sign an acknowledgement of paternity as long
as they receive notice "of the alternatives to, the legal consequences of, and the
rights . . . and responsibilities that arise from, signing the acknowledgement." 158
The states must also establish a "hospital-based program . . . focusing on the
period immediately before or after the birth of a child." 159

The voluntary acknowledgement of paternity is a "legal finding of
paternity." 160 The signor may only rescind the acknowledgment "within the
earlier of- (I) 60 days; or (II) the date of an administrative or judicial proceeding
relating to the child (including a proceeding to establish a support order) in which
the signatory is a party." 161 After the sixty-day period, the signor may challenge
the acknowledgement only on the basis of "fraud, duress, or material mistake of
fact." 162 Title IV-D therefore provides a non-judicial, cost-effective means to
"receive a final paternity judgment." 163

III. Indiana's Treatment of Unwed Fathers

Indiana has gone further than Title IV-D mandates. In the gap between
Indiana's current procedures and the mandates of Title IV-D lurk problems under
the U.S. Constitution. To see the constitutional issues under Indiana law, one
must first understand the procedures used in Indiana.

A. Indiana 's Public Policy

In accordance with Title IV-D, Indiana has a public policy for establishing
paternity of nonmarital children. 164 Indiana law emphasizes identifying the
"correct" father in paternity determinations, which shows the importance of a



154. Id ��658a.

155. Id �� 658a(b)(4)(A)-(E).

156. Id �� 666(a)(2).

157. Id �� 666(a)(5)(C).

158. Id �� 666(a)(5)(C)(i).

159. Id �� 666(a)(5)(C)(ii).

160. Id �� 666(a)(5)(D)(ii).

161. Id.

162. Id �� 666(a)(5)(D)(iii).

1 63 . See Cacioppo, supra note 1 5 1 , at 486.

164. See In re Paternity of E.M.L.G., 863 N.E.2d 867, 869 (Ind. Ct. App. 2007) (quoting IND.
Code ��31-14-1-1 (1998)).



5 1 2 INDIANA LAW REVIEW [Vol. 43 :499



biological relationship in Indiana. 165 The Indiana Supreme Court recognized a
"substantial public policy in correctly identifying parents and their offspring." 166
Indiana also "disfavors a support order against a man who is not the child's
father." 167

Indiana's paternity establishment statutory scheme also illustrates the state's
preference for the biological father's assumption of parental obligations. 168 The
statute provides that the mother and "a man who reasonably appears to be the
child's biological father" may execute the paternity affidavit at the hospital. 169
The affidavit also includes a sworn statement by the mother that the man signing
the affidavit is the child's biological father, 170 and the man must declare within
the affidavit that he believes he is the biological father. 171

B. The Result of Executing a Paternity Affidavit

A paternity affidavit "conclusively establishes the man as the legal father," 172
making it equivalent to a paternity determination by a court. 173 The mother or the
Title IV-D agency may seek child support from the father based solely on the
affidavit. 174 The affidavit also provides that "there will be no hearing related to
the paternity of the child(ren) included in the affidavit." 175

C. Valid Revocation of a Paternity Affidavit
The statute strictly limits the revocation of a paternity affidavit. 176 Beyond



165. In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992).

166. Id; see In re Paternity of Davis, 862 N.E.2d 308, 313 (Ind. Ct. App. 2007) (noting the
"strong public policies in favor of identifying the correct biological father and allocating the child
support obligation to that person").

167. In re Paternity of S.R.I. , 602 N.E.2d at 1016 (citing Fairrow v. Fairrow, 559 N.E.2d 597
(Ind. 1990)).

168. See Ind. CODE �� 16-37-2-2.1 (2008) (requiring mother and putative father to complete
sworn statements within paternity affidavit that the man is the biological father); id. �� 31-14-10-1
(requiring "[u]pon finding that a man is the child's biological father, the court shall, in the initial
determination, conduct a hearing to determine the issues of support, custody, and parenting time");
id. ��31-14-11-1.1 (providing "[i]n a paternity proceeding, the court shall issue a temporary order
for child support if there is clear and convincing evidence that the man involved in the proceeding
is the child's biological father").

169. Id. �� 16-37-2-2. 1(b)(1)(B).

170. Id. �� 16-37-2-2.1(e)(l).

171. Id �� 16-37-2-2. 1(e)(2).

172. Id �� 16-37-2-2.1(m).

173. See id. �� 3 1 - 1 4-2- 1 ("A man ' s paternity may only be established: ( 1 ) in an action under
this article; or (2) by executing a paternity affidavit. . . .").

174. Paternity Affidavit, State Form 44780, Ind. State Dep't of Health (on file with author).

175. Id.

176. Ind. Code �� 16-37-2-2.1 (h), (i), (k) (2008).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1 3



the importance of finality in judgments, 177 the legislative limitation on revocation
is based on the best interests of the child. 178 The Indiana Supreme Court has
noted the significance of stability and finality in family relationships. 179 The
court tempered the importance of that state objective by noting, "[p]roper
identification of parents and child should prove to be in the best interests of the
child for medical or psychological reasons." 180

A court may revoke an affidavit if the legal father files an action with the
court to request a genetic test within sixty days of the date of the affidavit, and the
test establishes that he is not the biological father. 181 The revocation may occur
outside of the sixty day period only for "fraud, duress, or material mistake of
fact" in the execution of the affidavit or if a court-ordered genetic test excludes
the legal father as the biological father. 182

Even if the father and mother sign a false paternity affidavit with the mutual
knowledge that the man is not the biological father, the court may not rescind the
affidavit. 183 There is no fraud or mistake in the execution of such paternity
affidavits because both parties were aware that he was not the biological father
at the time of signing. 184 Therefore, no valid statutory reason exists for setting
aside the paternity affidavit outside of the sixty days. 185 The Indiana Court of
Appeals has ruled that filing a petition to disestablish paternity is contrary to
public policy, and the Indiana Code does not provide for such an action. 186
Indiana strives to avoid disestablishment of paternity until paternity has been
established in another man to prevent creating an illegitimate child in the eyes of
the law. 187

Despite the paternity affidavit acknowledging legal paternity, another man



177. Lehr v. Robertson, 463 U.S. 248, 266 (1983).

178. In re Paternity of H.H., 879 N.E.2d 1175,1178 (Ind. Ct. App. 2008) (refusing to change
the legal status of a father who signed the paternity affidavit with the knowledge that he was not
the biological father because it would not be in the best interests of the child to remove the only
father the child had known).

179. In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992).

180. Id.

181. Ind. Code �� 1 6-37-2-2. 1 (h), (k) (2008).

182. Id. �� 16-37-2-2.1®, (k).

183. See In re Paternity ofH.K, 879 N.E.2d at 1 176.

1 84. See id. at 1 1 77-78 (finding no fraudulent execution if both parties knew he was not the
biological father); In re Paternity of R.C., 587 N.E.2d 153, 155 n.2 (Ind. Ct. App. 1992) (defining
extrinsic fraud as the mother's false statement to the father, thereby procuring his signature attesting
that he is the biological father).

185. See Ind. CODE �� 16-37-2-2. l(i) (2008).

186. See In re Paternity of H.J.B., 829 N.E.2d 157, 159-60 (Ind. Ct. App. 2005); In re
Paternity of B.W.M., 826 N.E.2d 706, 708 (Ind. Ct. App. 2005) (expressing strong disapproval of
legal father's petition to vacate his child support order after learning he was not the child's
biological father).

1 87. See In re Paternity ofH.J.B. , 829 N.E.2d at 1 60.



514 INDIANA LAW REVIEW [Vol. 43:499



may file an action to establish his own paternity. 188 For example, imagine Mary
and Pete complete a paternity affidavit in Indiana. Both Mary and Pete know that
Pete is not the biological father when they execute the affidavit. David learns of
the birth of Mary's child, and he believes that he is the biological father. David
may file a paternity action. 189 Establishing that Pete is not the biological father
will not revoke the paternity affidavit unless Pete requests genetic testing for
himself within sixty days of the execution of the affidavit. 190 David will not
become the legal father if Pete does not want to rescind his affidavit. 191 "A
paternity affidavit may not be rescinded unless the court, at the request of the
legal father, has ordered a genetic test, and the court-ordered test indicates that the
man is excluded as the father of the child." 192 Particularly if Pete signed the
affidavit with the knowledge that he was not the biological father, he may be
unwilling to voluntarily give up his legally protected relationship with the child.
As long as Pete wants to continue to be the legal father, David seems to have no
recourse under the current law.

Some courts will find that David is the biological father, but he still is not the
legal father. 193 First, the court will consider whether it is in the best interests of
the child to adjudicate the biological father's existence. 194 The court considers the
child's age, whether the child knows that David is his biological father, and
whether it is in his best interests to visit with David. 195 The court makes this
determination on a case-by-case basis, 196 and the biological father has no
guarantee that the court will recognize his biological connection.

IV. Problems with Indiana's Current Statutory Framework
Indiana denies many unwed fathers their right to due process. The current



188. See In re Paternity of N.R.R.I., 846 N.E.2d 1094, 1097 (Ind. Ct. App. 2006).

189. Ind. Code �� 31-14-4-1 (2008).

190. Id. �� 16-37-2-2.1 (Subsection (k) provides, "The court may not set aside the paternity
affidavit unless a genetic test ordered under subsection (h) or (i) excludes the person who executed
the paternity affidavit as the child's biological father." Subsection (h) only allows rescission if the
male signor requests a genetic test within sixty days of the signing of the affidavit. Subsection (i)
permits rescission of the affidavit past sixty days for "fraud, duress, or material mistake of fact" and
if the male signor requested a genetic test, and the results indicate that he is not the biological
father.). But see N.R.R.I., 846 N.E.2d at 1097 n.3 (suggesting that if genetic tests prove another
man is the biological father and exclude the legal father as the biological father, then the court may
set aside the paternity affidavit).

191. See Ind. Code �� 16-37-2-2.1 (2008).

192. In re Paternity of M.M., 889 N.E.2d 846, 849 (Ind. Ct. App. 2008).

1 93 . Interview with Master Comm'r Alicia Gooden, Presiding Judicial Officer over Paternity
Div. of Marion Circuit Court, in Indianapolis, Ind. (Feb. 6, 2009).

194. Id.

195. Id.

196. Id.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1 5



procedure for paternity determination has a high risk of error, 197 and the interests
at stake for the father outweigh the government's interests. The Due Process
Clause of the Fourteenth Amendment 198 requires more accurate procedures. 199
Biological fathers also do not receive notice that another man is assuming legal
paternity of their biological child.

Indiana's current paternity system also violates the biological father's
substantive due process rights by allowing state interference with the
development of the constitutional right to parent. The current procedures
interfere with the biological father's ability to establish a relationship with his
child, and according to U.S. Supreme Court precedent, Indiana may deny the
biological father's interest in his child for failure to establish a relationship with
his child. 200

A. Procedural Due Process

Procedural due process requires at a minimum "the opportunity to be heard
'at a meaningful time and in a meaningful manner.'" 201 When determining
whether a state's procedures violate a person's right to due process, the courts
must consider whether the Fourteenth Amendment protects the interests at
stake. 202 If the Fourteenth Amendment protects the interests, then the court must
consider what procedures will satisfy due process. 203 Additionally, if the outcome
of a proceeding is to be final, due process requires "notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections." 204

1. Procedural Requirements. — The U.S. Supreme Court in Mathews v.
Eldridge laid out three factors to determine "the specific dictates of due
process": 205

First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's interest,



197. See supra Part III.C.

198. U.S. Const, amend. XIV, �� 1.

199. See Mathews v. Eldridge, 424 U.S. 319, 336-40 (1976) (discussing the complex
administrative procedures for discontinuing Social Security payments and finding them
inadequate).

200. Lehr v. Robertson, 463 U.S. 248, 262 (1983).

201. Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

202. Ingraham v. Wright, 430 U.S. 651, 672 (1977).

203. Id.

204. Armstrong v. Manzo, 380 U.S. 545, 550 (1965); see Lehr, 463 U.S. at 273 (White, J.,
dissenting) (noting that "the right to be heard is one of the fundamentals of that right [due process],
which 'has little reality or worth unless one . . . can choose for himself whether to appear or default,
acquiesce or contest'" (quoting Schroeder v. City of New York, 371 U.S. 208, 212 (1962))).

205. Mathews, 424 U.S. at 335.



5 1 6 INDIANA LAW REVIEW [Vol. 43 :499



including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail. 206

First, a putative father has both liberty and property interests at stake in a
paternity determination. 207 Indiana courts have indicated that public policy is in
favor of allocating child support obligations to the biological father. 208 The signor
of a paternity affidavit has an interest in ensuring that he is the biological father
prior to paying the child support that is likely to result from a paternity
adjudication. Even if the mother chooses not to pursue child support
obligations, 209 if a man is the legal father, it may affect his obligation to pay
birthing expenses, 210 to provide health coverage, 211 and the intestate distribution
of his property upon his death. 212 The putative father also has an interest in the
parent-child relationship that will result. 213

Second, Indiana's current paternity procedures pose a high risk of "erroneous
deprivation" 214 of the father's interests. If a man, believing he is the biological
father, completes the paternity affidavit at the hospital, and genetic tests later
prove a different man is the biological father, the court may set the affidavit aside
for fraud or mistake of fact. 215 The court, however, can never remedy the man's
loss of property in child support payments and the emotional toll on the child and
father. 216 With neither genetic testing nor any evidence beyond the parties'
statements of the signor' s biological relation required, the risk of erroneous
deprivation is extremely high.

Due process also requires that any additional procedural safeguards justify



206. Id.

207. See Rivera v. Minnich, 483 U.S. 574, 583-84 (1987) (Brennan, J., dissenting).

208. See In re Paternity of Davis, 862 N.E.2d 308, 313-14 (Ind. Ct. App. 2007) (quoting In
re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992)).

209. See Ind. Code �� 1 6-37-2-2. 1 (g)(2)(A) (2008) (indicating that the execution of a paternity
affidavit gives the mother the right — not the obligation — to pursue a child support order).

210. See In re Paternity of A.R.S.A., 876 N.E.2d 1161, 1164-65 (Ind. Ct. App. 2007)
(requiring unmarried legal father to reimburse Medicaid for one-half of mother's birthing
expenses).

211. Ind. Code �� 16-37-2-2. 1(g)(2)(A) (2008).

212. See id. �� 29-l-2-7(b)(5) (2004) (providing that a court shall treat a nonmarital child for
purposes of intestate inheritance as if the father had married the mother if the father executes a
paternity affidavit); id. �� 29- 1-2- 1(d)(1) (establishing the intestate share for children of the
intestate).

213. See Troxel v. Granville, 530 U.S. 57, 65 (2000) ("[T]he interest of parents in the care,
custody, and control of their children — is perhaps the oldest of the fundamental liberty interests
recognized by this Court.").

214. See Mathews v. Eldridge, 424 U.S. 319,335(1976).

215. See, e.g., In re Paternity of R.C., 587 N.E.2d 153, 157 (Ind. Ct. App. 1992) (overturning
paternity judgment because of fraud in the context of an adjudication of paternity).

216. IND. CODE �� 16-37-2-2. l(i) (2008); see In re Paternity of R.C., 587 N.E.2d 157
(overturning a paternity judgment because of fraud by the mother).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1 7



the cost. 217 States must follow the mandates of Title IV-D, or the state will lose
federal funding. 218 The state must provide for non-judicial, "expedited" 219
procedures to establish paternity, including a hospital-based program "focusing
on the period immediately before or after the birth of the child." 220 Despite the
security mandatory genetic testing would provide, the Office of Child Support
Enforcement declared that states must allow for voluntary acknowledgements of
paternity to establish paternity without any further proceedings. 221 States cannot
require mandatory genetic testing under Title IV-D. Consequently, the state may
not discontinue the expedited procedures completely or require mandatory
genetic testing. Indiana must balance the need to protect the putative father's
right to due process against the need to receive federal funding.

The third Mathews factor is the "the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail." 222 The state's interest in
"efficacious procedures to achieve legitimate state ends" is a recognizable state
interest. 223 However, the Supreme Court has recognized "higher values than
speed and efficiency." 224 In Stanley v. Illinois, the Supreme Court noted: "[T]he
Bill of Rights in general, and the Due Process Clause in particular, . . . were
designed to protect the fragile values of a vulnerable citizenry from the
overbearing concern for efficiency and efficacy . . . ." 225 The procedures used to
establish paternity in a hospital reflect the need for constitutional protection from
the "overbearing concern for efficiency and efficacy." 226 The days and hours
following the birth of a child are likely to be stressful and emotional. The state's
process for immediate paternity acknowledgement in order to allow child support
payments to flow as swiftly as possible seems to be the precise type of
governmental action the Due Process Clause protects against. Despite the state's
need to increase child support payments, due process concerns require a more
balanced and thoughtful procedure to ensure all parties' rights are protected.

A marriage certificate or a paternity affidavit should not trump a genome.
The law should not underplay the importance of a biological connection. The
Supreme Court has recognized the significance of a biological link and an
established relationship. 227 This connection is one of the most unique of a child's
life. No piece of paper should outweigh the magnitude of this connection.
Indiana law should allow the biological father and the child the opportunity to



217. See Ingraham v. Wright, 430 U.S. 651, 680 (1977).

218. Cacioppo, supra note 1 5 1 , at 48 1 .

219. 42 U.S.C. �� 666(a)(2) (2006).

220. Id. �� 666(a)(5)(C)(ii).

22 1 . See Cacioppo, supra note 1 5 1 , at 503-04 & n. 1 52.

222. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

223. Stanley v. Illinois, 405 U.S. 645, 656 (1972).

224. Id.

225. Id

226. See id.

227. Lehr v. Robertson, 463 U.S. 248, 262 (1983).



5 1 8 INDIANA LAW REVIEW [Vol. 43 :499



develop a relationship before labeling him deadbeat and unfit. 228 Due process
demands that the biological father receives the opportunity to be heard before
depriving him of his child. 229 A later paternity suit, after another man is the
legally established father, that has minimal hope of giving the biological father
a legally recognized position in the child's life will not satisfy the deprivations
of the current law. The Fourteenth Amendment demands more. 230

2. Notice. — One of the fundamental requirements of due process is notice. 231
Title IV-D requires that the state procedures for administration of voluntary
acknowledgement of paternity must include notice to the mother and putative
father "orally, or through the use of video or audio equipment, and in writing, of
the alternatives to, the legal consequences of, and the rights . . . and
responsibilities that arise from, signing the acknowledgment." 232 Indiana's
paternity affidavit statute requires hospital personnel to "verbally explain ... the
legal effects of an executed paternity affidavit," 233 namely, that executing the
paternity affidavit "establishes paternity" 234 and "gives rise to parental rights and
responsibilities," including possible child support obligation. 235 The form does
not disclose the sixty day deadline to request genetic testing. 236 The form also
does not disclose any of the alternatives to signing this document, such as going
to the health department 237 after a genetic test establishes his biological paternity
or filing an action to establish paternity under Indiana Code section 3 1-14-4-1 , 238

Hospital personnel will generally inform the signor that the document is a
legal document that is legally enforceable and may give rise to child support
obligations. 239 The hospital personnel will not place his name on the birth
certificate without an executed paternity affidavit, 240 and most fathers present at



228. This Note does not suggest that women must disclose all of their sexual partners to
prevent a father from not knowing about the child. This Note suggests that the father should
receive more opportunity to come forward if he learns of the birth before the state severs the
biological relationship. See infra notes 279-328 and accompanying text.

229. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (describing the hearing requirement
in the context of deprivation of a property interest).

230. See U.S. CONST, amend. XIV, �� 1; Mathews, 424 U.S. at 333.

231. See Armstrong v. Manzo, 380 U.S. 545, 550 (1965).

232. 42 U.S.C. �� 666(a)(5)(C)(i) (2006).

233. Ind. CODE �� 16-37-2-2.1(b)(2) (2008).

234. Id. �� 16-37-2-2.1(g)(l).

235. Id. �� 16-37-2-2. 1(g)(2)(A).

236. Paternity Affidavit, State Form 44780, Ind. State Dep't of Health, (on file with author).

237. Id; see Ind. Code �� 16-37-2-2. 1(a)(2) (2008).

238. Ind. Code �� 31-14-4-1 (2008) (providing procedure to file a judicial paternity action).

239. Telephone Interview with Becky Stull, Birth Registrar, Postpartum Dep't, Home
Hospital, in Lafayette, Ind. (Nov. 1 9, 2008); Telephone Interview with Betty Judd, Birth Registrar,
Dep't of Newborn Records, Clarian Health Partners: Methodist Campus, in Indianapolis, Ind.
(Nov. 19,2008).

240. 42 U.S.C. �� 666(a)(5)(D)(i) (2006).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1 9



birth will choose to complete an affidavit. 241 As a result, the father is completing
a legally binding document in the hospital within seventy-two hours of the birth
of the child without full disclosure of his rights. 242

Current Indiana law requires a more complete disclosure of rights to waive
a spousal elective share under a will 243 or to borrow money from a bank 244 than
to assume full, complete parental obligations. 245 In In re Paternity ofE.M.L. G. , 246
the Indiana Court of Appeals held that not knowing the legal effects of the
paternity affidavit is not a valid reason to revoke the affidavits. 247 Additionally,
a court will not revoke a paternity affidavit for failure of the hospital to provide
the statutorily dictated verbal explanation of the legal effects of the document. 248
Despite the fact that Title IV-D, Indiana Code section 16-37-2-2. 1(b)(2), and the
Fourteenth Amendment require explanation of the legal effects of a document
prior to signing it, Indiana courts will not set aside a paternity affidavit for the
failure to explain the legal ramifications 249 or for the signor's lack of
understanding of the effects. 250

Indiana courts have justified upholding paternity affidavits when the signor
knew he was not the biological father because the signor has voluntarily assumed
the obligations of financial and emotional support for the nonmarital children. 251
Given Title IV-D's goal of reducing welfare costs and Indiana's strong policy of
establishing paternity for nonmarital children, 252 the State is logically eager to
allow any man to assume paternity. However, the State should not codify
procedures that encourage people to assume lifelong obligations without full
disclosure of the ramifications of the document he is signing. Even if the signor
knows generally what it means to become a parent, he may assume that if he is



24 1 . Telephone Interview with Becky Stull, supra note 239.

242. Ind. Code �� 16-37-2-2. 1(c)(1) (2008).

243. See Taylor v. Taylor, 643 N.E.2d 893, 897 (Ind. 1994) ("The right of election of a
surviving spouse given under [Indiana Code section 29-1-3-1 (Burns 1989)] . . . may be waived .
. . after full disclosure of the nature and extent of such right . . . .") (citing Ind. Code �� 29-1-3-7
(Burns 1989)).

244. See 15 U.S.C. �� 1601(a) (2006) (requiring the "meaningful disclosure of credit terms");
Ind. Code �� 24-4.5-2-301 (2007) (adopting the requirements of the Federal Consumer Credit
Protection Act, 15 U.S.C. �� 1601-1693r).

245. See Rivera v. Minnich, 483 U.S. 574, 583-84 (1987) (Brennan, J., dissenting) ("What is
at stake for a defendant in such a [paternity] proceeding ... is the imposition of a lifelong
relationship with significant financial, legal, and moral dimensions. ... A paternity determination
therefore establishes a legal duty whose assumption exposes the father to the potential loss of both
property and liberty.").

246. 863 N.E.2d 867 (Ind. Ct. App. 2007).

247. Id at 869.

248. In re Paternity of M.M., 889 N.E.2d 846, 849 n.l (Ind. Ct. App. 2008).

249. Id.

250. See In re Paternity ofE.M.L.G., 863 N.E.2d at 869.

251. See In re Paternity of H.H., 879 N.E.2d 1175, 1177-78 (Ind. Ct. App. 2008).

252. See In re Paternity ofE.M.L.G., 863 N.E.2d at 869.



520 INDIANA LAW REVIEW [Vol. 43 :499



not the biological father, the affidavit is no longer valid. He may also assume that
if he and the mother end their relationship, his child support obligations would
end if he is not a biological parent.

B. Substantive Due Process

The Due Process Clause of the Fourteenth Amendment "includes a
substantive component that 'provides heightened protection against government
interference with certain fundamental rights and liberty interests."' 253 The interest
at stake in paternity determinations is a father's right "to 'the companionship,
care, custody, and management of his . . . children.'" 254 This interest comes
within the purview of the Fourteenth Amendment's protection. 255 However, a
biological relationship alone will generally not rise to the level of a fundamental
liberty interest protected by the Fourteenth Amendment. 256 Courts give some
weight to the biological relationship between a father and child, but biology alone
is not enough. 257 The father must have acted to create a relationship with his
child. 258 The courts have sought to protect the familial relationship that develops
between parent and child. 259 Until the biological father substantively enters the
child's life as a parental figure and establishes a relationship with the child, he has
no constitutionally protected interests in that child. 260

The impermissible infringement on the biological father's right to parent
occurs when the state prevents the father from establishing a parental relationship
that a court will recognize. If any man may voluntarily assume the obligations
of fatherhood within hours of a child's birth at the hospital, then a biological
father may lose the prospect of a relationship with his biological child because the
mother chose not to tell him that she was pregnant. He cannot reasonably act on
something he did not know existed.

The mother may also act as a gatekeeper 261 by restricting the father's access
to the child. 262 Like the father in Quilloin v. Walcott, the law will deprive this



253. Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Washington v. Glucksberg, 52 1 U.S.
702,720(1997)).

254. M.L.B.v.S.L.J.,519U.S. 102, 118 (1996) (quoting Lassiter v. Dep'tofSoc.Servs., 452
U.S. 18,27(1981)).

255. See id. at 1 19; Santosky v. Kramer, 455 U.S. 745, 753 (1982).

256. Lehr, 463 U.S. at 259-61.

257. Mat 262.

258. Id.

259. See id.

260. Mat 261.

261. Lawrence M. Berger et al. , Parenting Practice of Resident Fathers: The Role of Marital
and Biological Ties, 70 J. MARRIAGE & Fam. 625, 627 (2008) (defining maternal gatekeeping as
"regulation of fathers' access to and time with children").

262. See Natasha J. Cabrera et al., Why Should We Encourage Unmarried Fathers to Be
Prenatally Involved?, 70 J. MARRIAGE & FAM. 1 1 18, 1 120 (2008) ("[M]other's gatekeeping may
help to alienate the father from her and the child and reduce his level of involvement over time.");



20 1 0] YOU SHALL ALWAYS BE MY CHILD 52 1



biological father of his interest in his child because he failed to establish a
relationship with the child, 263 but the mother may have been a significant factor
in his inability to assume the parental role. 264 The only reason for his loss of
constitutional protection is the fact that the mother and father were no longer
intimately involved, a situation that is now commonplace. 265

The Indiana Court of Appeals justified the interference with the biological
father's rights using the best interests of the child standard:

In short, the decisions of this state reveal the "best interests" standard has
not been employed to make vague moral judgments about alternative
lifestyles and parental fitness. Instead, the process of effecting that
which is "in the best interests of the child" has in fact been an effort by
our courts to preserve, and in some instances create, an environment
conducive to the mental and physical development of the child— an
environment which, to the extent possible, meets the "need of every child
for unbroken continuity of affectionate and stimulating relationships with
an adult." As such, the "best interests" test without question forwards a
compelling state interest which justifies the resultant interference with
the rights of the biological parents. 266

Using the best interests of the child standard to deny the father the opportunity
to develop a relationship is in fact making the "vague moral judgments about
alternative lifestyles and parental fitness" that the Indiana Court of Appeals
denied applying. 267 If the mother and father are married at the time of birth, even
if the father is living apart from the mother and has done nothing to contribute to
the pregnancy, he is the presumed father under the law. 268 If the parents are
unmarried, then the father must take proactive steps to establish a parental
relationship. 269 The law is making moral judgments about the ideal family



Rebecca M. Ryan et al., Longitudinal Patterns of Nonresident Fathers ' Involvement: The Role of
Resources and Relations, 70 J. MARRIAGE & Fam. 962, 965 (2008) ("[S]ome mothers insists fathers
pay formal or informal child support to gain access to the child, suggesting either that fathers'
motivation to remain involved may drive financial investment or simply that fathers' ability and
willingness to pay child support may determine his ability to be involved." (citation omitted)).

263. See Quilloin v. Walcott, 434 U.S. 246, 254 (1978).

264. See Interview with Master Comm'r Alicia Gooden, supra note 193 (noting that the
mother is often the reason why everyone is in "this mess").

265. Berger et al., supra note 26 1 , at 625 (noting a 2005 study found that about thirty-seven
percent of births were to unmarried women, and "few unmarried parents will marry each other after
their baby's birth").

266. In re Joseph, 416 N.E.2d 857, 861 (Ind. Ct. App. 1981) (quoting J. GOLDSTEIN ET AL.,
Beyond the Best Interests of the Child 6 (1973)).

267. Id.

268. See Ind. Code �� 31-14-7-1 (2008); see also Michael H. v. Gerald D., 491 U.S. 110, 115
(1989).

269. Lehr v. Robertson, 463 U.S. 248, 261-62 (1983).



522 INDIANA LAW REVIEW [Vol. 43 :499



structure and is punishing those who do not fit. 270 People cannot have the liberty
secured to them by the Fourteenth Amendment if the courts interpret the
Constitution based on its view of the ideal family. 271

A state may only interfere with a fundamental right if it is advancing a
compelling state interest. 272 Few would deny that the state has a compelling
interest in protecting children. If the father were abusing or neglecting his
children, then the state would have a compelling interest in removing the children
from the father's custody. 273 In most cases where the unmarried father loses his
right to his children, the state has not shown that it is in the best interests of the
child to terminate his rights. 274 The state assumes the father is unfit and deprives
him of his children. In Quilloin v. Walcott, the U.S. Supreme Court found that
state interference with a "natural family" without a showing of unfitness would
violate the Due Process Clause. 275 Modern society no longer has a prototypical
natural family model. 276 Continuing to use the justification that the biological
father is not a part of the "protected family unit" 277 is a blatant refusal to consider
social reality, and it is certainly not a sufficiently compelling state interest to
justify denying a father the right to parent or to even know his child. 278

V. Proposed Solutions

Indiana must do more to protect father's rights. Indiana should balance the
interests of everyone involved while staying within the mandates of Title IV-D.
Due to the potentially harsh outcome that can result if another man voluntarily
signs a paternity affidavit for a child that is not biologically his own, Indiana must



270. See generally Carl E. Schneider, The Channelling Function in Family Law, 20 HOFSTRA
L. Rev. 495, 496 (1992) (describing how the law "promotes social institutions" such as marriage
and parenthood).

271. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (finding a statute prohibiting
interracial marriage unconstitutional).

272. In re Joseph, 416 N.E.2d at 859.

273. Id. at 860.

274. His rights are terminated by another man's execution of the paternity affidavit or by his
failure to learn of the pregnancy. See infra Parts III.B-C.

275. Quilloin v. Walcott, 434 U.S. 246, 255 (1978).

276. See Linda L. Berger, How Embedded Knowledge Structures Affect Judicial Decision
Marking: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody
Disputes, 18 S. Cal. Interdisc. L.J. 259, 259 (2009) (describing the "radically changing
conceptions of family and of the relationships possible between children and parents").

277. Michael H. v. Gerald D., 491 U.S. 1 10, 124 (1989).

278. See id. at 156-57 (Brennan, J., dissenting) (noting the majority's opinion is surrounded
by an atmosphere of "make-believe" and does not reflect social reality); Berger, supra note 276,
at 259 ("Though family structure is undergoing 'a sea-change,' family law remains tethered to
culturally embedded stories and symbols. While so bound, family law will fail to serve individual
families and a society whose family structures diverge sharply by education, race, class, and
income." (quoting William Shakespeare, The Tempest act 1, sc. 2 (1623)).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 523



put in place increased procedural safeguards to ensure the biological father has
the opportunity to assume the rights if he should choose to do so. Emphasizing
genetic testing prior to execution of a paternity affidavit, ensuring proper notice
prior to signing, providing for dual fatherhood, and creating an enhanced putative
father registry will help Indiana continue to hold men financially responsible for
their children while allowing every member of the modern family's constitutional
rights to survive.

A. Greater Emphasis on Genetic Testing in the Hospital and
Increased Notice Prior to Signing

Indiana's paternity statutes have established the state's preference for
biological fathers to assume the responsibilities of their nonmarital children. 279
The U.S. Supreme Court has also suggested that the ideal situation for a
nonmarital child is for her biological father to have an emotional relationship with
her. 280 Indiana should make every effort to ensure that only the biological father
signs the paternity affidavit.

Using modern technology, a father can definitively determine whether he is
a child's biological father. 281 Mandatory genetic testing at birth would virtually
eliminate later paternity suits and the threat of future paternity
disestablishment. 282 However, Congress chose not to require mandatory genetic
testing under Title IY-D to keep the paternity acknowledgement process simple,
and states cannot require mandatory genetic testing under Title IV-D. 283
Nevertheless, hospital personnel can strongly encourage genetic testing prior to
signing the paternity affidavit without compromising the goals of Title IV-D. 284

Many fathers may feel reluctant to question their paternity in the hospital
room with the new baby and its mother present. These fathers may feel that the
mother and hospital personnel will assume that they are trying to shirk their
responsibility if they request genetic testing. 285 Talking confidentially to the
father outside of the hospital room and informing him of the advantages of
genetic testing may ease some of his discomfort.



279. See supra notes 168-71 and accompanying text.

280. See supra note 96 and accompanying text.

28 1 . See Paternity Test, http://www.dnacenter.com/paternity/legal-testing.html (guaranteeing
99.99% probability of paternity for inclusions and 1 00% probability of exclusion) (last visited Mar.
1,2009).

282. See Cacioppo, supra note 1 5 1 , at 503.

283. See id. at 503-05.

284. See id. at 488 & n.58 (noting that the Office of Child Support Enforcement "strongly
recommended" including "[a]n advisory to parents that they may wish to seek legal counsel or
obtain a genetic test before signing").

285. See Rivera v. Minnich, 483 U.S. 574, 585 (1987) (Brennan, J., dissenting) (emphasizing
that "the losing defendant in a paternity suit is subject to characterization by others as a father who
sought to shirk responsibility for his actions"). Though a paternity suit and the execution of a
paternity affidavit are procedurally distinct, the concerns for the father are similar.



524 INDIANA LAW REVIEW [Vol. 43 :499



Fathers currently receive minimal notice of the effect of signing the affidavit,
beyond the fact that it is a legal document. 286 The affidavit itself does not disclose
the sixty-day window for requesting a genetic test. 287 The key to rectifying the
current procedure is to require full disclosure, promote consultation with an
attorney prior to signing, and encourage genetic testing.

Prior to signing the paternity affidavit, the father must either request genetic
testing or sign that he is waiving genetic testing prior to executing the affidavit.
Such a procedure would not require genetic testing in contravention of federal
requirements, 288 but would notify the father that genetic testing is available and
recommended. The affidavit and the hospital personnel or attorney must notify
the father of his right to request genetic testing within sixty days and the resulting
waiver of that right outside of the sixty day period. Hospital personnel or an
attorney must make the detailed effects of the document clear to him at the time
of signing. Without full disclosure, his consent is not truly informed. The law
should not bind a man for two decades based on a one page document that does
not fully explain the ramifications of signing it.

B. Recognition of Dual Fatherhood

The idea of one mother and one father is a remnant of the past. 289 The
modern family has evolved into numerous varieties. 290 The modern reality is
"[0]nly one-quarter of American households fit the marital family ideal of
married parents with children." 291 Many children have had some kind of "social
parent" 292 prior to reaching the age of majority. 293 The state should consequently
recognize dual fatherhood in certain situations. Dual fatherhood might appear
unworkable and unduly complicated. However, social reality reflects that modern
families are complicated, and the law should strive to reflect modern reality. 294



286. See supra notes 23 1 -42 and accompanying text.

287. See supra note 236 and accompanying text.

288. See supra notes 2 1 7-22 and accompanying text.

289. See Berger et al., supra note 261, at 625-26 (discussing the changing "family
demography" within the last fifty years).

290. See Troxel v. Granville, 530 U.S. 57, 63-64 (2000) (noting the difficulty in describing
the "average American family").

29 1 . Berger, supra note 276, at 28 1 .

292. See Berger et al., supra, note 261, at 625-26 (defining a social parent as "a married or
cohabitating partner of a child's biological parent (usually mother) to whom the child is not
biologically related").

293. Id. at 625 ("[Estimates from the mid-1990s show that approximately one third of
children in the United States will spend time living with a social parent during childhood[.]"). This
figure is likely higher now due to the increased nonmarital birth rate and divorce rate. See supra
note 7 and accompanying text.

294. See Kisthardt, supra note 1 2, at 599-600 (noting in the context of a step-parent adoption,
"The law's refusal to afford parental-type rights to more than one 'father' sets up a situation in
which 'rights' may be vindicated, but 'interests' are not necessarily accommodated and



20 1 0] YOU SHALL ALWAYS BE MY CHILD 525



Indiana already recognizes a form of dual paternity in some situations. In
Schaffer v. Schaffer, 295 the Indiana Court of Appeals allowed visitation by the
stepfather who was the named father on the birth certificate. 296 The mother and
stepfather divorced, and the stepfather received visitation rights. 297 One year
later, the biological father also received visitation rights and a child support
order. 298 The appellate court allowed the visitation rights of both fathers, neither
of whom were currently in a romantic relationship with the mother. 299

Dual fatherhood is in the best interests of the child and the state. The child
in Quilloin v. Walcott wanted his stepfather to adopt him, but he also wanted
visitation with his biological father. 300 Dual paternity would have resolved this
issue and protected the interests of both fathers and the child. The only danger
is the conflict that may arise over child support obligations and visitation rights.
Proper planning and a clear statement of each parent's rights will resolve any
ambiguity as to parental rights.

Under a dual paternity scheme, the law would recognize a primary and a
secondary father. 301 The primary father would be the dominant paternal figure in
the child's life. The biological father should be the primary father if he asserts
his rights early. Allowing the biological father to be the primary father reflects
Indiana's preference for the biological father to establish his paternity. 302 It also
conforms to the Supreme Court's holding in Lehr v. Robertson, whereby the
biological father has a constitutionally recognized interest in his child only if he
develops a relationship with the child. 303

If the biological father has a genetic test performed at the hospital that
establishes his paternity, and he signs the paternity affidavit, then he is
unquestionably the primary father. If the father waives a genetic test at the
hospital, the paternity affidavit should stipulate that he will be the primary father
only if the biological father does not come forward within six months of the
execution of the paternity affidavit. If the biological father comes forward after
six months, then the biological father will be the secondary father. The legal
father would remain the primary father despite his lack of biological connection.
In this scenario, the best interests of the child demand recognition of the
established social relationship over biology.

Regardless of when the biological father comes forward, he should have a
cognizable legal interest in a relationship with the child, unless it is clearly not in



relationships are not fostered.").

295. 884 N.E.2d 423 (Ind. Ct. App. 2008).

296. Mat 424-25.

297. Mat 424.

298. Mat 425.

299. Mat 425, 429.

300. Quilloin v. Walcott, 434 U.S. 246, 251 n.l 1 (1978).

30 1 . This discussion presumes the mother has physical custody of the child. The legislature
would need to address the parental rights if the primary father had physical custody of the child.

302. In re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992).

303. Lehr v. Robertson, 463 U.S. 248, 262 (1983).



526 INDIANA LAW REVIEW [Vol. 43 :499



the child's best interest to grant visitation. The determination of whether it is in
the best interests for the child to have a legal relationship with the biological
father must involve similar considerations as any parental rights termination
proceeding. 304 The biological father will therefore always have a protected
interest in the child at any time, unless he is abusive or neglectful. 305 His failure
to come forward immediately after the birth will not result in a blanket denial of
a relationship with the child.

For dual paternity to work effectively, the court must carefully assign the
rights of each parent involved, particularly in regard to child support, parenting
time, and decision-making regarding the child's life. The proposed scheme is
only one possible breakdown. 306

7. Child Support. — If there is no secondary father, the primary father would
pay one hundred percent of the child support. If there are two legal fathers, the
primary father would pay seventy- five percent of the child support obligation. 307
A non-residential secondary father would pay the remaining twenty-five percent.
If the secondary father resides with the mother, then his gross income would
factor into the mother's gross income for purposes of Indiana's child support
guidelines rather than forcing him to pay a given amount to the mother every
week. 308 The state should base child support payments on the percentage of the
total parental bundle that the father receives, including the right to make decisions
regarding his child's life. If the father has joint custody and is an equal decision-
maker regarding his child, he should pay more child support than a secondary
father who receives only visitation.

2. Parenting Time. — The primary father should receive more parenting time
with the child than a non-residential secondary father. If the secondary father
resides with the mother, then he will not receive any rights to parenting time
beyond what the mother receives. If the secondary father does not reside with the
mother, then he will only get a portion of what the mother receives. The primary
father would have parenting time on every other weekend and for six weeks
during the summer. 309 The mother would therefore have custody for the
remaining time. A non-residential secondary father, presumably a legal father



304. See Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147-48 (Ind.
2005) (describing the requisite showing prior to termination of parental rights).

305. See id.

306. This Note does not address all possible legal issues that may arise with two legal fathers,
such as intestate distribution and wrongful death actions. State statutes can easily resolve these
issues. The purpose of this section is to illustrate that dual paternity is a workable solution to a
complicated problem.

307. This Note refers to child support as court-mandated child support. This Note presumes
that child-related expenditures by the mother are voluntary and therefore do not come into the
equation.

308. Ind. Child Support Guidelines, Ind. R. of Ct. 1-6, available at http://www.in.gov/
judiciary/rules/childsupport.

309. The state could adjust this if the primary father and mother do not live close to one
another. The alternative could be one weekend a month and eight weeks in the summer.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 527



who is now divorced from the mother, would get one weekend a month and three
weeks during the summer. The secondary father's share must not decrease the
primary father's share.

3. Decisionmaking. — The mother and the primary father make all decisions
regarding the child's welfare, including religion, education, and health decisions.
The secondary father would not get a vote.

This scenario is more equitable than the current law. Under Indiana's current
paternity system, a biological father will never be a legally recognized father
unless he both knows about the pregnancy and knows how to exert his rights. 310
If another man executes a paternity affidavit without a genetic test, the biological
father has no rights unless the now legal father decides to request a genetic test
within sixty days of the paternity affidavit execution. 311 Even if the biological
father registers with the current putative father registry — which most fathers
likely have no idea exists 312 — he will still not have the right to challenge the
paternity affidavit of another man. 313 The biological father therefore may have
only a seventy-two hour window to exert his right to parent his child. 314 If the
biological father never discovers the pregnancy, he will never have the
opportunity to develop the relationship that the Court in Lehr demanded. 315
Therefore, through no fault of his own, a father will never know his child. Worse
still, an innocent child will never know her father. The justification for this
deprivation is that the biological mother and father were no longer intimately
involved. Father and child lose out due to circumstances beyond their control.

This system also serves the interests of Title IV-D and the state. Title IV-D's
goal is to receive the maximum amount of child support to reduce the welfare toll
on the state and federal budgets. 316 With two possible fathers to contribute
financially to the child's development, this system doubles the likelihood the
child will receive the full child support obligation, possibly more. Two fathers
also would give the mother more social resources to aid in the rearing of the
child. Having more parents means more extended family to help baby-sit and
provide emotional support to the mother.

Title IY-D also demands a "simple civil process" for the voluntary
acknowledgement of paternity. 317 If a man wants to be the child's father, then the
state may reasonably allow him to do so. This system allows the legal father to
acknowledge paternity under a simple civil process without violating the
biological father's interests in establishing a relationship with his child and his
potential right to parent in the process.

The state may desire to have the traditional family structure composed of one



310
311
312
313
314
315
316
317



See supra notes 188-96 and accompanying text.
See supra notes 188-95 and accompanying text.
See Lehr v. Robertson, 463 U.S. 248, 264 (1983).
See supra notes 188-96 and accompanying text.
See Ind. Code �� 16-37-2-2. 1(c)(1) (2008).
See Lehr, 463 U.S. at 262.
See 42 U.S.C. ���651, 666(a) (2006).
Id �� 666(a)(5)(C)(i).



528 INDIANA LAW REVIEW [Vol. 43:499



father and one mother, but the state's most important goal should be to provide
the child with the most resources possible. Shuffling the child between homes is
not ideal, but giving the child the greatest opportunities possible ensures the child
will not suffer the "consequences of illegitimacy," such as poverty. 318 Few
children will suffer from too much love and attention. As Indiana has adopted the
best interests of the child approach to most of its family determinations, this
approach certainly makes more sense than the current system. 319 The current
system protects the mother and the state more than the child and fathers. The
proposed system balances the interests of everyone involved, while protecting the
best interests of the child to the maximum extent possible. It also does this
without trampling the rights of the fathers.

C. Enhanced Putative Father Registries

When a mother and father knowingly complete a false paternity affidavit,
they circumvent the adoption proceedings that the law would otherwise require
to assume legal parenthood. 320 Under Indiana's adoption laws, if the father has
filed with the putative father registry, he will receive notice of the adoption. 321
Registry provides notice so that he may intervene in the adoption proceeding and
present his objections. 322 No similar provision for paternity affidavits exists, even
if the father knew of the pregnancy and was able to file with the putative father
registry.

The imperfections of the current putative father registry usually prohibit the
registry from protecting the biological father's rights. These flaws usually result
from the biological father's lack of information. He often does not know of the
pregnancy and will likely not know of the registry unless he has consulted with
an attorney. Failure to register results in the biological father's implied consent
to proceed with the adoption. 323 Lack of knowledge is no defense. 324

Indiana places the burden of discovery of the pregnancy on the biological



318. Berger, supra note 276, at 28 1 .

319. See, e.g. , In re Paternity of H.H., 879 N.E.2d 1 1 75, 1 1 78 (Ind. Ct. App. 2008) (applying
the best interests of the child standard).

320. A woman who knowingly provides a false name as the biological father commits a Class
A misdemeanor. Ind. Code �� 16-37-2-2. 1(f) (2008). There is no equivalent provision for a man
who completes a false paternity affidavit, likely due to the difficulty in proving actual knowledge
of the man.

321. Id. ��31-19-5-4.

322. See Kimberly Barton, Comment, Who 's Your Daddy?: State Adoption Statutes and the
Unknown Biological Father, 32 Cap. U. L. REV. 113, 128 (2003) (noting the purpose of putative
father registries is to protect the father's interest by giving him notice, the mother's privacy, and
the child's and adoptive parent's interest in a "secure adoption").

323. Ind. Code ��31-19-9-15.

324. See id. �� 31-19-9-16 (establishing that a putative father may not contest the validity of
his implied consent).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 529



father. 325 The mother usually has no duty to reveal her pregnancy to any potential
fathers. 326 The assumption behind this is that a father who does not care enough
to discover whether a child resulted from his sexual encounter with the mother
will likely be an unfit father. The state labels the biological father a deadbeat dad
because of his failure to call all former sexual partners to inquire whether a
pregnancy resulted. This is an unfair assumption, one that Indiana should
certainly not endorse. It is unrealistic to assume that sexual partners who are no
longer intimately involved will contact each other to inquire whether a pregnancy
has resulted. Failure to do something that few people actually do should not
constitute implied abandonment of his child.

If Indiana continues to place the burden of discovery on the biological father,
then it must work more diligently to protect the father's rights. The legislature
should adopt an expanded version of the putative father registry. This expanded
model will give the putative father notice of adoption proceedings or execution
of paternity affidavits related to a child born to the mother. The registration
process must be simple, such as registry via phone or by the submission of an
online document. To register as a putative father, the father would need to have
the mother's first and last name in addition to at least one unique identifier, such
as middle initial, birth date, or social security number. The putative father may
provide as much information as possible to ensure proper notice. The state would
link the registry to the health department database of all live births. If the mother
has a live birth within twelve months of the registration, the putative father will
receive notice, allowing him to inquire further if he desires to pursue legal
paternity. The registration will expire at twelve months from the date of the
registration. If the mother and putative father have another sexual encounter in
that time period, he will have the option to renew his registration. Upon a live
birth by the mother, the hospital or health department will strongly encourage a
genetic test by the putative father. If more than one putative father comes
forward, the fathers will have to submit to a genetic test before either can
complete the paternity affidavit. The registration will also include a time restraint
to respond to the notice provided. Thirty days would strike the fairest balance
between the state's interest in prompt adoption and expeditious paternity
determinations of nonmarital children as well as the nonmarital father's right to
pursue a relationship with his child.

The key to an enhanced putative registry's success is advertisement. Fathers
must know that they must take affirmative steps to ensure legal rights to their
children and that filing with the registry is the easiest means to guarantee the
biological father will have access to his child. The state must advertise the
registry as much as possible. Reasonably accessible means of advertisement
would include posting information online, at high schools and universities, at
fatherhood initiative centers, and in government facilities.

Advertisement will necessarily expend state resources. However, the cost of
printing flyers or running television or radio advertisements is minuscule



325. See In re Paternity of Baby Doe, 734 N.E.2d 281, 285 (Ind. Ct. App. 2000).

326. See id.



530 INDIANA LAW REVIEW [Vol. 43:499



compared to the cost of litigation that results when the biological father does not
know his rights. The damage to the child when she must endure endless paternity
suits is immeasurable. 327 Advertisement may also identify fathers who would not
have otherwise known how to come forward, thereby resulting in more child
support going to the child. This would certainly further the goals of Title IV-D.
The importance of the putative father registry must become public knowledge.
Only then will putative father registries actually protect fathers' rights, rather than
punishing the fathers for their inability to maneuver a system they did not know
existed.

This proposed solution does not ignore the reality that some fathers do not
want to assume the responsibilities of fatherhood. However, the majority of
fathers will attempt to remain involved in their children's lives, 328 and the
behavior of a few should not justify depriving the fathers who want to be
involved the opportunity to do so. Indiana must still give them the chance to
make that decision. The biological father must have the right of first refusal
before any other man may take his place.

Conclusion

Indiana cannot change existing Supreme Court precedent, and Title IV-D is
likely here for the foreseeable future. However, Indiana can change the unjust,
and often unconstitutional, treatment of the unwed father. The Indiana legislature
must adopt the dual paternity structure as well as the enhanced, heavily advertised
putative father registry to protect nonmarital father's constitutionally protected
rights. Additionally, hospital personnel and the health department must promote
genetic testing and the right to an attorney prior to the execution of a paternity
affidavit. The paternity affidavits must disclose the sixty-day deadline to request
a genetic test and provide a full explanation of the legal ramifications of signing
the document. If the father wants to sign the affidavit in the hospital, an
independent third party should consult with him in a neutral environment away
from the mother and child.

If Indiana adopts all of these suggestions, fewer fathers will suffer the
consequences of ignorance of the law. Fewer children will have their biological
heritage stripped from them. It is easy to say that fathers should know better, and
if they really wanted to be involved in a potential pregnancy, they would have
stayed connected to the mother. It is easy to stereotype the deadbeat dad and
assume that all fathers who do not reside with the mother do not care about their
children. That could not be farther from the truth. The law itself drives a wedge
into one of the most precious bonds a person can ever experience. This must not



327. See David D. Meyer, Parenthood in a Time of Transition: Tensions Between Legal,
Biological, and Social Conceptions of Parenthood, 54 Am. J. COMP. L. 125, 137 (2006).

328. See Natasha J. Cabrera et al., Explaining the Long Reach of Fathers ' Prenatal
Involvement on Later Paternal Engagement, 70 J. MARRIAGE & Fam. 1094, 1096 (2008) (noting
that "[m]any men who become fathers commit to 'being there' for their children and vow to make
significant changes" and describing several variables that often impact the father's involvement).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 53 1



continue.

When the Indiana legislature next convenes to discuss child support
enforcement with the "Let's get those deadbeats" vigor, each legislator should
consider what it would feel like to know you have a child that you never even had
the chance to get know. Someone else made the choice for you. Someone else
decided you were not good enough to be a parent. Perhaps then, Indiana's
perspective would change. No one deserves less than a chance to get to know
their children or their fathers.



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