ON THE RELEVANCE OF ECONOMIC EFFICIENCY CONCLUSIONS

ON THE RELEVANCE OF ECONOMIC EFFICIENCY CONCLUSIONS RICHARD S. MARKOVITS* INTRODUCTION ..................................................................
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ON THE RELEVANCE OF ECONOMIC EFFICIENCY CONCLUSIONS RICHARD S. MARKOVITS* INTRODUCTION ..................................................................................................... I. PRESCRIPTIVE MORAL EVALUATION .................................................................... A. Moral-Rights Argument in the United States ............................................. B. Moral-Ought Arguments .............................................................................. 1. The Non-Liberal Moral Norms (Personal Ultimate Values) That Play a Role in “Moral-Ought” Evaluations: A Partial List and Comparison With the Liberal Basic Moral Principle ........................... 2. The Structure of Moral-Ought Arguments............................................ II. LEGITIMATE AND VALID LEGAL ARGUMENT IN A LIBERAL, RIGHTS-BASED STATE SUCH AS THE UNITED STATES .................................................................. A. Legal-Rights Analysis in the United States ................................................ 1. My Position on Legitimate Legal Argument, Valid Legal Argument, and the Existence of Internally Right Answers to Legal-Rights Questions in the United States .............................................................. 2. My Position on the Legitimate and Valid Way to Identify Different Types of Legal Rights in the United States........................................... B. Alternative Positions on Legal-Rights Analysis in the United States ........ 1. Philip Bobbitt ......................................................................................... 2. Legal Realists ......................................................................................... 3. Critical Legal Studies ............................................................................ 4. Legal Pragmatists .................................................................................. 5. Ronald Dworkin ..................................................................................... 6. John Hart Ely......................................................................................... 7. Legal Historians of Ideology .................................................................. 8. Strict Constructionists ........................................................................... III. ECONOMIC-EFFICIENCY ANALYSIS AS AN ALGORITHM FOR GENERATING MORAL-RIGHTS AND MORAL-OUGHT CONCLUSIONS IN A LIBERAL, RIGHTSBASED SOCIETY .................................................................................................... A. Economic-Efficiency Analysis as an Algorithm for Generating MoralRights Conclusions in a Liberal, Rights-Based Society.............................. 1. The Insensitivity of Economic-Efficiency Analysis to Considerations That Play Crucial Roles in Some Liberal, Moral-Rights Analyses ..... 2. Four Erroneous Arguments That Underlie the Mistaken Conclusion That Economic-Efficiency Analysis Is an Algorithm for the Assessment of Moral-Rights Claims...................................................... B. Economic-Efficiency Analysis as an Algorithm for Generating MoralOught Conclusions in a Liberal, Rights-Based Society .............................. 1. Three Reasons Why Economic-Efficiency Analysis Is Not an Algorithm for the Generation of Moral-Ought Conclusions in Our Culture.................................................................................................... 2. A Critique of Two Arguments That Some Economists Believe Establish the Ability of Economic-Efficiency Analysis to Serve as an Algorithm for Generating All, or Most, Public Policy Moral-Ought Conclusions in Our Culture...................................................................

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* John B. Connally Chair in Law, University of Texas School of Law. B.A., Cornell University, 1963; Ph.D., London School of Economics, 1966; L.L.B., Yale University, 1968; M.A., Oxford University, 1981.

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a. A Critique of the Argument That All Economically Efficient Decisions Ought to Be Made Because Making Them Will Bring the Economy to a Pareto-Superior Position .................................... b. A Critique of the Double-Distortion Argument Argument ............. 3. Contributions of Economic-Efficiency Analysis .................................... IV. ECONOMIC-EFFICIENCY ANALYSIS AS AN ALGORITHM FOR GENERATING INTERNALLY CORRECT LEGAL-RIGHTS CONCLUSIONS IN A LIBERAL, RIGHTSBASED CULTURE .................................................................................................. A. When the Internally Right Answer to the Legal-Rights Question Is Moral-Principle-Based Because the Relevant Legal Right Derives from a Moral Right................................................................................................... B. When the Internally Right Answer to the Legal-Rights Question Is Personal-Ultimate-Value-Based or Goal-Based Because the Relevant Legal Right Was Created by a Properly Drafted Provision that Was Designed to Instantiate a Personal Ultimate Value or Achieve a Legitimate Concrete Goal ............................................................................. C. When the Right Answer to the Legal-Rights Question Turns on Textual, Historical, Structural, or Other Considerations That Are Not Captured by Any Moral Principle or Personal Ultimate Value .................................. CONCLUSION ........................................................................................................ APPENDIX .............................................................................................................

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INTRODUCTION Economists define the concept “an increase in economic efficiency” in three different ways. First, they sometimes define the concept in a Pareto-superior sense. A choice is said to be Pareto-superior if and only if it makes somebody better off while making nobody worse off— stated differently, if and only if it moves society to a so-called Paretosuperior position.1 However, because no (or virtually no) government choice is Pareto-superior, economists almost never employ this definition in practice. Second, economists sometimes employ a “potentially Pareto-superior” definition of “increase in economic-efficiency.” A choice increases economic efficiency under this definition if its combination with a transaction-costless, appropriate resource transfer would bring the economy to a Pareto-superior position. Third, and most often, economists employ what I call the “monetized” definition of “increase in economic efficiency.” In the monetized sense of this concept, a choice increases economic efficiency if it gives its beneficiaries the equivalent of more dollars than it takes away from its victims.2 Indeed, virtually all applied microeconomic policy and law1. Economists sometimes also use the parallel expression “Pareto-inferior” to describe choices that make somebody worse off without making anyone better off (i.e., choices that are economically inefficient in a Pareto-inferior sense of that expression). 2. The term “equivalent” is used because the gains and losses may never show up in the affected parties’ dollar holdings—indeed, they may not even be capitalizable by the parties. Roughly speaking, the beneficiaries’ equivalent-dollar gains equal the number of dollars they must receive “in an inherently neutral way” to be made as well off as the choice under review would make them, while the choice’s victims’ equivalent-dollar losses equal the number of dollars they would have to lose “in an inherently neutral way” to be left as poorly off as the choice would leave them. For a detailed analysis of the appropriate

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and-economics analyses that focus on economic efficiency implicitly adopt this monetized definition of “increase in economic-efficiency.” Many, if not most, economists and law-and-economics scholars write and speak as if the analysis of economic efficiency in this monetized sense is an algorithm for the determination of the right answer to all prescriptive moral questions and to all common law, many constitutional law, and some statutory legal-rights questions. Rather than confining themselves to the claim that their analyses reveal which policy would be most economically efficient, these scholars typically assert that their analyses reveal the “optimal” policy or the policy that would secure “the social optimum.” Indeed, even when economists do not use these expressions, the policyrecommendation sections of their economic-efficiency analyses focus exclusively on economic efficiency.3 This pattern of behavior is not reway to measure the equivalent-dollar gains of a choice’s beneficiaries and the equivalentdollar losses of a choice’s victims, see Richard S. Markovits, A Constructive Critique of the Traditional Definition and Use of the Concept of “The Effect of a Choice on Allocative (Economic) Efficiency”: What is Right and Why the Kaldor-Hicks Test, the Coase Theorem, and Virtually All Law-and-Economics Welfare Arguments Are Wrong, 1993 ILL. L. REV. 485 (1993) (clarifying the meaning and point of the expression “in an inherently neutral way,” providing a critique of the standard way in which economists and economist-lawyers measure these gains and losses (including a critique of the Kaldor-Hicks test for economic efficiency)) , and demonstrating that the Coase Theorem is wrong for the same reasons that the Kaldor-Hicks test is wrong—or, if you prefer, that the arguments that demonstrate that the Kaldor-Hicks test must be significantly revised require a similar revision of the Coase Theorem). I want to anticipate a point to be made later by indicating that choices that increase economic efficiency in this monetized sense may not be potentially Pareto-superior in our actual, Pareto-imperfect world. In our world, one or more Pareto imperfections may make even a transaction-costless transfer—whose combination with the choice in question would have moved the economy to a Pareto-superior position in their absence—sufficiently economically inefficient to preclude not only that transfer but any more complicated, transaction-costless resource transfer from securing a Pareto-superior position. 3. A quick Westlaw search of articles published between 1983 and 1998 revealed at least 123 articles in which scholars equated “maximizing economic efficiency” with “securing the social optimum.” Please note that this tally included articles in which this conflation could be established at a glance. Predictably, the articles dealt with issues that belong to a wide variety of traditional doctrinal fields, including antitrust, bankruptcy, civil procedure, commercial law, contracts, corporate law, environmental law, family law, intellectual property law, international trade law, securities regulation, remedies, regulated industries, telecommunications law, tort law, etc. By name recognition, I identified forty authors or co-authors as Ph.D. economists. I know several of these authors. A few know the limited relevance of economic-efficiency conclusions, but I can assure you that most do not agree with the conclusions this Article reaches. I hasten to point out that this usage and its analogues are not restricted to the law-andeconomics literature. It is equally manifest in the “pure” economics literature. For example, the 1999 Richard T. Ely Lecture—the major paper given at the American Economic Association meetings—developed a “defense of inequality” that does not explicitly mention, much less analyze, either any of the implicated moral-rights issues or any non-rightsrelated, distributional-value issues. See Finis Welch, In Defense of Inequality, 89 AM. ECON. REV. PAPERS AND PROC. 1 (1999). In fact, although this paper gives some attention to changes in the empirical differences between the compensation of males and females, of people of “European” and “African” descent, of White and Black women, and of White and

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stricted to the relevant individuals’ scholarly activities. In my experience, the vast majority of economists and law-and-economics scholars also conflate the economic efficiency of a policy option with its social desirability when testifying before Congress, state legislatures, and administrative agencies—that is, in such non-scholarly venues, they also recommend policies solely on the basis of those policies’ economic efficiency. One might argue that these practices involve no more than semantic errors—that the economists and law-and-economics scholars who write and talk in this way really know that the economically efficient choice is not always the choice required by our rightscommitments or the choice that is best, all things considered, including distributional values and sometimes economic efficiency. But few economists and virtually no law-and-economics scholars admit the Black men, id. at 6-11, it says nothing about the possible value significance of such differences or the circumstances in which they would or would not have some moral significance. Although Welch’s Article does not use the expression “economic efficiency” and makes reference to several possible effects of inequality—for example, on marriage and crime— whose importance the author may not value solely for economic-efficiency reasons, its sections on the consequences of inequality and its concluding policy comments make no explicit or implicit reference to moral norms. Specifically, Welch makes no reference to either the moral norms I denominate “moral principles,” which I believe are relevant to moralrights analyses, or the moral norms I denominate “personal ultimate values,” which I believe are relevant to moral-ought analyses. I admit that some economists who think that economic efficiency cannot be defined nonarbitrarily assume that policies should be evaluated in terms of their impact on a “social welfare function” that does not reflect economic efficiency alone. However, this approach is uncommon in the law-and-economics literature, derives from an incorrect assumption that the concept of “the effect of a choice on economic efficiency” cannot be defined nonarbitrarily, and in practice conceals as much as it illuminates. This last claim reflects the fact that the economists who use this “social welfare function” approach tend to use incorrect definitions of “the effect of choice on economic efficiency,” frequently misunderstand the relationship between the effect of a choice on economic efficiency and its impact on total utility, typically ignore the substance of the relevant fairness or justice norms, and misanalyze the relationship between the justness or fairness of a choice and its moral permissibility or overall desirability. More specifically, at least some of the relevant scholars (1) appear to think that justice or fairness judgments reflect the personal ultimate values of those who make them and (2) appear to assume that the effectuation of these norms has the same prescriptive moral relevance as the satisfaction of other types of preferences, tastes, or desires (for example, of the desire for strawberry ice cream). Thus, according to some of these scholars, the fact that a choice effectuates a society’s moral-rights commitments increases social welfare, independent of its other consequences, to the extent that, but only to the extent that, in so doing, it yields utility to, or increases the “well-being” of, those individual members of the society who value that norm. As Part IV argues, this account is fundamentally at odds with the role that fairness norms play in prescriptive moral evaluations in rights-based societies. See, e.g., Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 969-70, 980, 982, 1021-38 (2001) [hereinafter Kaplow & Shavell, Fairness Versus Welfare]. In any event, contrary to the claims I have often heard economists make orally and on four occasions have seen them express in unpublished referees’ reports and comments on colleagues’ manuscripts, I do not think that the use of social welfare functions to evaluate policies significantly undercuts the importance of analyzing the claims that have been made for the relevance of economic-efficiency conclusions for prescriptive moral evaluations and legal arguments.

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limited relevance of economic-efficiency conclusions in print. In fact, several highly respected economists and law-and-economics scholars have written well-known articles that make arguments purporting to justify the claim that economically efficient decisions are always just and/or desirable—arguments that they have not explicitly disavowed and that no other economist has refuted.4 Moreover, even if those economists and law-and-economics scholars whose writing and speech conflate “maximizing economic efficiency” with “securing the social optimum” know better in one sense, I suspect that their semantic errors take hold of them psychologically. I will admit, ad arguendo, that if they took the trouble to think about these issues, many of them would acknowledge the possibility that, under some conditions, an economically efficient choice might not be morally permissible (that is, consistent with our rightscommitments) or desirable overall. However, even if they would, these scholars still habitually assume that those conditions are not fulfilled in the cases with which they are concerned. In addition, even if economists never deceive themselves, their misuses of language are socially costly because they tend to induce public officials to base their decisions exclusively on economic-efficiency considerations. In my judgment, economists have had a considerable impact of this kind in the United States. They have encouraged American legislators at

4. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980) [hereinafter Efficiency Norm]. Although Judge Posner has never explicitly disavowed this position, he may no longer subscribe to it. See Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1998). I use the word “may” because, in this later Article, Posner may be admitting no more than that the economist qua economist cannot demonstrate that “a society’s ultimate goal” should be to promote “growth, equality, happiness, survival, conquest, stasis, [and] social justice.” Id. at 1670. He may continue to believe that each of these goals or a maximand in which they are arguments would be best promoted by economically efficient choices. The set of well-known economists who have explicitly asserted the proposition delineated in the text (though their arguments for this conclusion differ from Posner’s) include J.R. Hicks in Foundation of Welfare Economics, 49 ECON. J. 696 (1939); Harold Hotelling in The General Welfare in Relation to Problems of Taxation and of Railway and Utility Rates, 6 ECONOMETRICA 242 (1938); and Mitchell Polinsky in Probabilistic Compensation Criteria, 86 Q.J. ECON. 407, 407-12 (1972). Posner’s argument in his HOFSTRA Article and the different arguments made by Hicks, Hotelling, and Polinsky will be delineated and critiqued in the text below. Admittedly, more recently, two respected economists (one of whom is also a lawyer) have argued that, at least when evaluating tax policy, it may be optimal to take the distribution of utility (as opposed to its maximization) and hence more than economic efficiency into account. However, these scholars still reject the relevance (and perhaps even the coherence [meaningfulness]) of fairness norms that do not focus on utility. See Kaplow & Shavell, Fairness Versus Welfare, supra note 3; Louis Kaplow & Steven Shavell, Should Legal Rules Favor the Poor? Clarifying the Role of Legal Rules and the Income Tax in Redistributing Income, 29 J. LEGAL STUD. 821 (2000) [hereinafter Kaplow & Shavell, Should Legal Rules Favor the Poor?]; Louis Kaplow & Steven Shavell, Why The Legal System Is Less Efficient Than The Income Tax in Redistributing Income, 23 J. LEGAL STUD. 667 (1994) [hereinafter Kaplow & Shavell, Legal System].

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all levels of government to analyze and justify their decisions exclusively in economic-efficiency terms; persuaded President Reagan to promulgate an Executive Order requiring administrative agencies to reject all new and old regulations that do not pass an economicefficiency-based cost/benefit test;5 and encouraged some judges to base some of their decisions on economic-efficiency considerations in cases in which the internally right answer to the relevant legalrights question was not the economically efficient answer.6 For this reason, my critique of the positions to which so many economists and law-and-economics scholars appear to subscribe is not academic in the pejorative sense of that adjective. I actually believe that many economists do not understand the limited relevance of economic-efficiency conclusions, that most economists who in one sense do understand this fact habitually ignore it, and that economists have misled many public decision makers into exaggerating the importance of economic efficiency. However, even if I am wrong on all of these issues, this Article is justified because it corrects two deficiencies in the literature: (1) No one has ever carefully or correctly analyzed the relevance of economic-efficiency conclusions to prescriptive moral and legalrights analyses; and (2) The economics and law-and-economics literature contains several incorrect arguments on these issues made by highly regarded economists or law-and-economics scholars. These arguments have never been disavowed by their authors or adequately criticized by anyone else.

This Article’s analysis is presented in four parts and an appendix. Part I outlines various accounts of prescriptive moral discourse, both generally and in the United States particularly. Part II outlines various accounts of legitimate7 and valid8 legal argument in the United

5. Exec. Order No. 12,291, 3 C.F.R. 127 (1982), reprinted in 5 U.S.C. § 601 note (1988). Although President Clinton issued an Executive Order requiring administrative agencies to “assess all costs and benefits,” to choose the regulatory approach that “maximize[s] net benefits,” and to “propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs,” Exec. Order No. 12,866 § 1(a), (b)(5)-(6), 3 C.F.R. 638-39, reprinted in 5 USC § 601 note (1994), Clinton’s Order made clear that the benefits to be considered include many “gains” that are not or may not belong to the set of equivalent-dollar gains on which traditional cost/benefit analysis focuses: for example, “distributional impacts,” “equity,” and “environmental” and “public health and safety” gains that may not be measured in traditional cost/benefit terms. Id. § 1(a), 3 C.F.R. 639. 6. See, e.g., Union Oil Co. v. Oppen, 501 F.2d 558, 569 (9th Cir. 1974); Saint Barnabas Med. Ctr. v. Essex County, 543 A.2d 34, 43 (N.J. 1988) (Pollock, J., concurring). 7. In my terminology, the use of an argument to determine what the law is or what the substance of a particular legal-rights conclusion is is said to be “legitimate” or “morally legitimate” if it is consistent with the relevant society’s moral commitments.

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States as well as various related conclusions about whether internally right answers (unique answers derivable from valid legal argument) exist in the United States. Next, Part III demonstrates that, regardless of which defensible account one gives of prescriptive moral argument, economic-efficiency arguments generally are not algorithms for generating prescriptive moral conclusions of any kind. More specifically, Part III justifies this conclusion by pointing out that economic-efficiency analysis cannot determine the set of people who count, is insensitive to many distinctions that play a crucial role in moral-rights analysis, and does not consider the independent relevance to “moral-ought evaluations” of what I call “distributional values,” which always play a major role—indeed, for some, play an exclusive role—in “moral-ought” analysis. Part III also states and criticizes (1) four arguments that economists and law-and-economics scholars have made to justify their claim that economic-efficiency analysis is an algorithm for the generation of moral-rights conclusions and (2) two arguments that economists have made to support the conclusion that economic-efficiency analysis is an algorithm for the generation of all, or at least most, moral-ought conclusions. Finally, Part IV demonstrates that, regardless of which contemporaneously supported position one takes on legitimate and valid legal argument in the United States, economic-efficiency analysis rarely provides “internally right” answers to legal-rights questions in the United States, independent of whether the legal right in question derives from an independent moral right, was created to implement some “personal ultimate value(s)” or defensible concrete policy goals, or was created to secure economic rents for its beneficiaries. The APPENDIX sketches six arguably different methodologies that philosophers use to analyze prescriptive moral questions and explains why my critique of the claims economists have made for the prescriptive moral relevance of economic-efficiency conclusions does not depend on the correctness of the “qualified conventionalist” approach that I take to prescriptive moral analysis.

8. In my terminology, the use of an argument to determine what the law is is “valid” or “legally valid” if that use is relevant in determining, within the society concerned, the internally correct answer to the legal-rights question under investigation. A textual argument may be legally valid and a related legal-rights conclusion may be internally correct even though they are morally illegitimate if the textual argument focuses on a Constitutional text (1) whose concrete implications were understood by its ratifiers and (2) that is inconsistent with the moral commitments of the society that promulgated it. Of course, if the relevant Constitutional provision were socially important, the failure of the society in question to remove it would call into question that society’s moral integrity.

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I. PRESCRIPTIVE MORAL EVALUATION Two types of prescriptive moral discourse can be distinguished: Moral discourse about what someone or the State is morally obligated to do and moral discourse about what someone or the State morally ought to do. These two types of discourse differ in four ways. First, in cultures that clearly distinguish these two types of discourse, they involve different moral norms. For convenience, I will denominate the moral norms used in moral-rights discourse “moral principles” and the different moral norms used in moral-ought discourse “personal ultimate values.” Second, in cultures that clearly distinguish the two types of discourse, they sometimes yield “conflicting” conclusions. In a given situation, a moral agent may have no obligation to do something that from various legitimate personal-ultimate-value perspectives he or she ought to do. And less often, a moral agent may have an obligation to do something that, from some personal-ultimate-value perspective that is legitimate within its appropriate domain, she ought not do. Third, in “rights-based” societies,9 not only are moral-rights conclusions clearly distinguished from moral-ought conclusions but moral-rights conclusions trump moral-ought conclusions when the two conflict. Conversely, moral-ought conclusions trump moral-rights conclusions in “goal-based” cultures. Goal-based cultures consider moral-rights discourse as essentially the same as moral-ought discourse—that is, references to “moral rights” indicate only that the speaker feels strongly about the relevant conclusion and/or is certain that it is correct. In goal-based cultures, “moral rights” are valued solely as the handmaidens of “moral oughts.” In other words, in goalbased societies, moral rights are recognized or enforced only if their recognition or enforcement promotes the goal the society is committed to maximizing. Fourth, and finally, although in rights-based cultures most individual or State choices do not implicate rights—that is, most choices are neither required by nor prohibited by the rights of any rightsbearing entity—all moral choices can be analyzed from the perspective of personal ultimate values. 9. For a discussion of the distinctions among “rights-based,” “goal-based,” immoral, and amoral societies, see RICHARD S. MARKOVITS, MATTERS OF PRINCIPLE: LEGITIMATE LEGAL ARGUMENT AND CONSTITUTIONAL INTERPRETATION 13-34 (1998) [hereinafter MARKOVITS, MATTERS OF PRINCIPLE], and Richard S. Markovits, Legitimate Legal Argument and Internally-Right Answers to Legal-Rights Questions, 74 CHI.-KENT L. REV. 415, 417-23 (1999) [hereinafter Markovits, Internally-Right Answers]. For analytic purposes, I would classify (1) societies in which religious-right or religious-duty conclusions trump individually-held moral-ought conclusions as a variant of rights-based societies and (2) idealbased societies, in which the effect of a choice on the extent to which some ideal is secured trumps all other considerations, as a variant of “goal-based” societies.

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Societies of moral integrity10 can be either rights-based or goalbased. The members of particular rights-based societies can be committed to basing their moral-rights evaluations and moral-rightsrelated conduct on any one of a number of different moral norms.11 Members of both rights-based and goal-based societies can individually or personally subscribe to any or a combination of a wide variety of moral norms. A. Moral-Rights Argument in the United States I believe that the United States is a rights-based State—that is, that this society draws a strong distinction between moral-rights analysis and moral-ought analysis and commits itself to the proposition that moral-rights conclusions trump moral-ought conclusions when the two conflict. Although Part III could focus, inter alia, on the relevance of economic-efficiency conclusions to generic moral-rights analysis, and Part IV could focus, inter alia, on the relevance of economic-efficiency conclusions to moral-rights-related legal-rights analysis in any rights-based society, I will focus on the relevance of economic-efficiency conclusions for the particular types of moralrights analysis and moral-rights-related legal-rights analysis to which Americans are committed. I have developed elsewhere detailed protocols for determining whether a given society is goal-based, rights-based, amoral, or immoral as well as for determining the particular moral norm (the basic moral principle) that underlies the rights of rights-bearing entities in

10. Societies of “moral integrity” are societies whose members and State conform their behavior to the moral norm to which they are committed to a difficult-to-specify requisite extent. Amoral societies have no moral commitments. Immoral societies are committed to effectuating a decision principle that is intrinsically immoral. Obviously, this last statement reflects my belief that the notions “moral” and “immoral” have some essentialist content. 11. This proposition and several others in the text that follows are admittedly contestable. Disagreements about them partly reflect disagreements about the methodology one should use to investigate the prescriptive moral issues they implicate. Although this Article is not the place for a full discussion of the relevant methodological debate, the APPENDIX will provide sketches of some of the more important methodologies that different philosophers use to investigate prescriptive moral issues. Philosophers who think that there are universally binding norms of justice and use methodologies that are designed to discover these norms (methodologies that are said to be “foundationalist” in the broader sense of that term) will reject the statement in the text to which this footnote is attached. Philosophers who do not think that there are universally binding norms of justice (including “conventionalists,” who focus on describing the moral practices of particular communities) will be willing to accept the proposition that different communities may be committed to different norms of justice. The APPENDIX provides brief (admittedly conntestable) sketches of four arguably different approaches to justice or moral-rights analysis that are foundationalist in the broader sense of that expression as well as accounts of two versions of conventionalism, which admittedly occupy extreme positions on the possible conventionalist continuum.

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a given rights-based society.12 I have also detailed protocols for determining the characteristics that make a creature a rights-bearing entity in a particular rights-based society.13 These protocols have led me to conclude that American society is a liberal, rights-based society. When I say the United States is a “liberal,” rights-based society, I mean that it is committed to (1) Classifying as moral-rights-bearing all creatures who have the neurological prerequisites to become or remain individuals of moral integrity14—that is, to take their moral obligations seriously and to attempt to make their lives conform with the personal ultimate values to which they subscribe; and (2) Treating all rights-bearing entities for which it is responsible with equal, appropriate respect and (derivatively) showing appropriate, equal concern for their actualizing their morally critical potential to lead lives of moral integrity.15

In general, moral-rights arguments aim to discover the conclusion that will maximize the net rights-related interests of all relevant moral-rights holders. These arguments involve a balancing approach quite different from the type of non-rights-oriented, consequentialist balancing employed by some American courts. In a liberal, rightsbased State, moral-rights arguments attempt to determine the conclusion that best promotes relevant moral-rights holders’ interest in being treated with equal, appropriate respect and concern. It may be helpful to concretize this abstract discussion by delineating a few of the more concrete moral rights that moral-rights holders have in a liberal, rights-based State. More specifically, in a liberal, rights-based culture, a private choice violates a moral-rights holder’s right to appropriate, equal respect if it manifests prejudice against him, disrespect for him based on his morally irrelevant personal attributes or group membership,16 or a desire to hurt him for no particular reason at all. Relatedly, a State choice violates a moralrights holder’s right to appropriate, equal respect if it manifests prejudice against him; hurts him for no good reason; fails to secure his rights-related interests when the choice does not promote rights12. MARKOVITS, MATTERS OF PRINCIPLE, supra note 9, at 13-34. 13. Id. at 35-39. 14. For a detailed discussion of the concept of “being a person of moral integrity,” see id. at 39-41. 15. Id. at 41-44. 16. As would many failures to keep promises made to him or decisions by an actor that would create a risk that someone else might suffer an accident-loss or pollution-loss that the actor in question would not have made had he placed the same weight on the average net equivalent-dollar loss his choice imposed on others as on the average net equivalent-dollar gain it secured for him.

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related interests on balance; fails to give him the opportunity to participate appropriately in various legislative, executive, and judicial decisionmaking processes; or officially endorses a particular view of the first-order good.17 Also relatedly, a liberal, rights-based State may violate a moral-rights holder’s right to appropriate, equal concern by failing to ensure that he can make meaningful life choices.18 B. Moral-Ought Arguments This section analyzes the structure and possible content of moralought arguments. Regardless of whether a society’s moral-rights commitments require or preclude the choice under consideration or regardless of whether the society has any moral-rights commitments, a person can always analyze whether, from some personal-ultimatevalue perspective, he ought to make or reject the choice. Nevertheless, to increase the salience of the discussion that follows, I will focus on moral-ought arguments in a liberal, rights-based society like the United States. I want to emphasize, however, that most of what follows also applies to goal-based societies and non-liberal, rightsbased societies. 1. The Non-Liberal Moral Norms (Personal Ultimate Values) That Play a Role in “Moral-Ought” Evaluations: A Partial List and Comparison With the Liberal Basic Moral Principle The liberal basic moral principle I have articulated differs substantially from the various norms that I think members of our society use, either separately or in combination, when making and evaluating “moral-ought statements.” Thus, the liberal moral norm differs from the classical utilitarian norm, which evaluates any claim or act according to the effect of its recognition or commission on the total 17. It is appropriate for a liberal, rights-based State to endorse the second-order good of an individual’s living a life of moral integrity. 18. That is, by failing to provide the moral-rights holder with the minimum real income he needs both to reach the point at which he can think about the good and (in our kind of society) to have the self-respect necessary to take his life morally seriously; by failing to put him in a position to have a range of experiences that enable him to make meaningful value and life choices; by failing to provide him with an education that enables him to think critically and that informs him of a variety of ethical and life-style alternatives; by failing to prevent others, including his parents, from limiting his information-base unacceptably or from constricting his psychological ability to exercise autonomy; by failing to protect his privacy, because privacy fosters integrity by giving the actor the opportunity to contemplate, to enter into intimate relationships, and to reduce the cost of experimentation; by failing to preserve and foster in other ways the actor’s ability to enter into and maintain intimate relationships, which often lead to self-discovery and enable their participants to instantiate their values; and by failing to protect various other liberties whose exercise enables an actor to instantiate his or her values when such protection can be provided without sacrificing weightier rights-related interests of others. For a more detailed analysis of the concrete implications of a liberal, rights-based society’s duties of equal, appropriate respect and concern, see id. chs. 3-4.

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utility experienced by all entities whose utility counts. It also differs from the “modern” utilitarian norm, which evaluates a choice by its impact on the average utility experienced by all entities whose utility counts. Admittedly, like the liberal principle, these utilitarian norms can be described as egalitarian, in their case because they treat all entities whose utility counts as equals by giving the same weight to each unit of utility (by not making the value of a unit of utility depend on the identity or history of the entity experiencing it). However, utilitarian norms differ from liberal norms because they proceed from a different assumption about the attributes of an entity that cause the entity to be rights-bearing or of moral concern. In particular, utilitarian norms implicitly assume that the ability to experience utility is critical to the moral status of an entity while, as we saw, the liberal norm assumes that the possession of the neurological prerequisites for becoming or remaining an individual of moral integrity is the relevant defining characteristic. The liberal moral norm also differs from the equal-utility egalitarian norm, which values the moral worthiness of a claim or the moral desirability of an act by the impact of its recognition or commission on the equality of the utility experienced by each moral-rights holder. The liberal moral norm differs as well from each of the various nonliberal equal-opportunity egalitarian norms, which value the worthiness of a claim or choice by the impact of its recognition or commission on the inequalities of the opportunity that different moral-rights holders have to do things other than actualize their potential to become and remain individuals of moral integrity—for example, the opportunity they have to develop certain mental or physical skills or to perform certain valued social roles. Once more, like the liberal principle, the equal-utility and nonliberal equality-of-opportunity norms can be described as egalitarian because, as their very names suggest, they treat individuals as equals by deeming the recipient’s identity and behavioral history irrelevant to the evaluation of his or her experiencing utility or receiving various opportunities. However, both these norms differ from the liberal norm because they implicitly reject the liberal assumption that the defining characteristic of an entity is its potential to become or remain an individual of moral integrity. These norms differ from each other with respect to the metric by which their holders define a life’s success. Supporters of the equal-utility norm measure a life’s success by the utility the relevant entity experiences. In contrast, supporters of the non-liberal equal-opportunity norm assume that an individual does something uniquely valuable when he makes good use of the particular type of opportunity that such evaluators want to be equally available to all and measure the suc-

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cess of a life by the extent to which an individual took advantage of the opportunity or set of opportunities they value. The liberal principle differs as well from the equality-of-resources norm, which values a claim or an act by the impact of its recognition or commission on the equality of the resources—which are measured in allocative-cost or “opportunity cost” terms—available to moralrights holders. This equality-of-resources norm resembles the liberal principle in two ways. First, it is egalitarian because it renders irrelevant the identity and the history of each moral-rights holder. Second, it allows individuals to select their own metric of success. However, the equality-of-resources norm also differs from the liberal principle in two respects. First, it differs in the metric it implicitly adopts for a “life’s success”—presumably something like the extent to which an individual achieves his concrete goals. Second, it differs in its particular concern with the resource constraint as opposed to the taste-of-the-community constraint on the success of an individual’s life as it defines this concept. Finally, the liberal moral norm differs from the various norms that different libertarians endorse. Libertarianism differs from liberalism most clearly on distributional justice issues and may also be associated with a broader definition of liberty than liberalism would countenance. In particular, unlike liberals, libertarians assume that each moral-rights holder deserves the resources he would have if they were obtained through behavior that did not directly violate anyone’s rights—for example, by earning or producing them,19 finding them, obtaining them through luck in general, or receiving them as a gift or bequest. Moreover, libertarianism may be more likely than liberalism to concede both the right of individuals to indulge their prejudices in various contexts and the right of some individuals, such as parents, to limit the information on which others, such as their children, can base their life choices. 2. The Structure of Moral-Ought Arguments Like all moral-rights arguments, all moral-ought arguments must begin by determining the creatures whose positions ought to be considered. After this so-called “boundary condition” issue is resolved, moral-ought arguments diverge into two families. The first type of moral-ought argument proceeds by estimating the equivalent-dollar gains and losses each choice-option will generate, placing norm-derived weights on these equivalent-dollar gains 19. For a discussion of the ambiguity of the phrase “what someone produces” and my reason for concluding that the libertarian distributional premise that “people ought to receive, or are entitled to receive, what they produce” either is conceptually morally mistaken or is based on blatantly false empirical assumptions, see id. at 50-53.

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and losses, and choosing the option that maximizes the total positive difference between weighted equivalent-dollar gains and weighted equivalent-dollar losses. The set of norms that can best be effectuated in this way includes (most obviously) norms that focus on the maximization and/or distribution of utility—paradigmatically, utilitarianism and equal-utility egalitarianism, but also variants of other norms that focus on whether individuals receive the utility that their conduct implies they deserve. However, the set of norms that can best be effectuated through this type of argument also includes norms that value the equivalent-dollar effects on a choice for reasons unrelated to its impact on the affected individuals' utility—for example, norms that value the tendency of a choice to produce equivalentdollar effects that equalize the availablity of some opportunity to relevant individuals, or that provide one or more individuals with a specific opportunity for reasons unrelated to the utility that anyone will obtain from these individuals' exercising the opportunity. This first type of moral-ought argument has eight steps: (1) Determine the set of moral-rights holders. (2) Determine whether a particular choice is required or prohibited by the rights of any moral-rights holder. If a particular choice is required by our rights-commitments, then that choice ought to be made. If a particular choice is prohibited by our rightscommitments, then the rest of the protocol must be followed to determine which non-proscribed choice ought to be made. If a particular choice is neither required by nor prohibited by our rightscommitments, then the rest of the protocol must be followed to determine which choice ought to be made. (3) Use economic-efficiency analysis to predict the equivalentdollar gains that each morally permissible change from the status quo will confer on its beneficiaries and the equivalent-dollar losses it will impose on its victims. (4) Specify the personal ultimate value or personal-ultimate-value combination on which the relevant moral-ought conclusion will be based—inter alia, specify the facts that the value in question makes germane to any consideration of the distributional desirability of the choice in question.20 20. A number of facts may be relevant to the distributional desirability of a choice, including the characteristics of the welfare positions and/or general conduct of the beneficiaries and victims; the moral characteristics of any acts to which the private or government choice in question is responding; and the characteristics of any indirect consequences that the relevant private or government choices may have. Thus, for utilitarians and various kinds of egalitarians, the relevant facts will include such items as the distribution of the beneficiaries’ and victims’ pre-choice wealth and incomes. For those libertarians who believe that people ought to be paid according to what they produce, the relevant facts will include such items as the relationship between the beneficiaries’ and victims’ pre-policy

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(5) Collect the facts that the above value or value-combination deems relevant to the distributional desirability of the choice in question. (6) Use the value specification in (4) and the facts in (5) to generate weights to be attached to the average equivalent-dollar gain and average equivalent-dollar loss yielded by each morally permissible change from the status quo. (7) For each relevant change from the status quo, calculate the weighted equivalent-dollar gains the change would generate, the weighted equivalent-dollar losses the change would generate, and the difference between them. (8) Evaluate all changes according to the net weighted equivalentdollar effect of each: more specifically, recommend the change with the highest positive net weighted equivalent-dollar gain or recommend no change if all changes would yield lower net weighted equivalent-dollar gains than losses. The evaluator should be indifferent to making a change that yields equal net weighted equivalent-dollar gains and losses.

The second type of moral-ought argument proceeds from values that cannot be effectuated most desirably by predicting and placing weights on equivalent-dollar gains and losses. Some of these values (many of which are religious) focus on the intent of the actors to bring about certain consequences that are perceived to be bad in themselves for reasons that do not focus on their net equivalentdollar impact. Moral-ought evaluations that proceed from such values start with the same two steps with which the first type of moralought argument began and then proceed as follows: (3) Specify the personal ultimate value or personal-ultimate-value combination on which the relevant moral-ought conclusion will be based. (4) Collect the facts that the above value or value-combination deems relevant.

wealth and incomes and their respective “allocative products” (the allocative value of the labor of either the last person or the average person who did their type of work with equal industriousness and skill). And for liberals, the relevant facts will include such items as the relationship between the number of people the private or government choice will enable to become and remain individuals of moral integrity by raising their material welfare, and the number of people the choice will prevent from becoming and remaining individuals of moral integrity by reducing their material welfare. Similarly, for retributionists and individuals who believe that people should not profit from their own wrongs, the relevant facts would include whether any acts to which a relevant private or government choice responds were inherently immoral.

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(5) Use the relevant value or value-combination to assess the desirability of each morally permissible choice. (6) Recommend the most desirable choice.

II. LEGITIMATE AND VALID LEGAL ARGUMENT IN A LIBERAL, RIGHTSBASED STATE SUCH AS THE UNITED STATES The nature of the arguments that are legitimate and valid legal arguments will vary across different types of moral cultures and, quite possibly (with legal practice), among cultures of the same moral type. Although I certainly could analyze the relevance of economicefficiency conclusions and economic-efficiency analysis for the determination of legal rights in general, I think it more instructive to do so for the various types of legal rights that can exist in liberal, rightsbased societies such as the United States. I recognize that the structure of legitimate and valid legal argument in the United States varies with the type of legal right being asserted. I also acknowledge that many experts doubt that legal arguments can be legitimate or valid in the senses in which I use these terms and that some experts who agree that my abstract accounts of these concepts are coherent and applicable to legal argument in the United States disagree with my conclusions about the varieties of legal argument that are legitimate in the United States.21 Some also disagree with my claim that arguments of moral principle normatively dominate legal argument in the United States.22 I will discuss the positions of various scholars who disagree with my account of legitimate and valid legal argument in the United States and discuss my own position on these issues to put myself in a position to demonstrate that my critique of the claims that have been made for the relevance of economic-efficiency argument for legal-rights argument and legal-rights conclusions does not depend on the correctness of my jurisprudential views. A. Legal-Rights Analysis in the United States 1. My Position on Legitimate Legal Argument, Valid Legal Argument, and the Existence of Internally Right Answers to LegalRights Questions in the United States My basic jurisprudential position can be summarized in the following way:

21. See infra text accompanying note 25. 22. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL FATE (1982); PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION (1991); J.M. Balkin and Sanford Levinson, Getting Serious About “Taking Legal Reasoning Seriously,” 74 CHI.-KENT L. REV. 543 (1999).

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(1) Using a particular type of argument to determine the content of existing law is morally legitimate in a given culture if and only if doing so is consistent with that culture’s moral commitments. (2) An acceptably thorough analysis of the prescriptive moral discourse and conduct of members of United States society would reveal that America is a liberal, rights-based culture. More specifically, such an investigation would yield the conclusion that ours is a liberal, rights-based culture whose members and State are obligated to show appropriate, equal respect and concern for all moralrights holders for whom they are responsible. (3) An appropriate empirical analysis would reveal that, in addition to arguments that employ our society’s basic moral principle directly (arguments of moral principle), members of our culture use different sorts of textual, historical, structural, precedential/legal-practice-based, and prudential arguments to determine the content of pre-existing law. (4) The preceding conclusions imply that in our liberal, rightsbased culture the use of a particular type of argument to determine what the law is is morally legitimate if and only if it is consistent with our society’s liberal basic moral principle. This implies not only that arguments based on this moral principle are internal to law but that they are also the dominant mode of legitimate legal argument in a rights-based culture. More specifically, arguments of moral principle dominate legitimate legal argument in a rightsbased culture in two ways: They operate directly to determine the legitimacy or justness of legal-rights claims that are based on moral rights, and they operate indirectly to determine the legitimacy of the other general modes of argument that members of the relevant culture have used or may use to establish what the law is, the variants of each general type of argument it is legitimate to use to discover the law, and the legitimate relationship between each sub-type of argument that can be legitimately used to discover what the law is and the internally right answer to the relevant legal-rights question.23 (5) Cultures that are not amoral or immoral—cultures that have moral integrity—may have constitutions that instantiate their moral commitments less than perfectly. In these cultures, morally legitimate legal argument may diverge from legally valid legal argument. In particular, if such a culture’s constitution contains one or more provisions whose text is clearly inconsistent with its moral commitments and whose concrete implications were understood by 23. For a detailed account of the indirect roles of arguments of moral principle and an explanation of my claim that those roles favor my conclusion that there are unique, internally right answers to all Constitutional law questions in the United States, see MARKOVITS, MATTERS OF PRINCIPLE, supra note 9, at 61-76.

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their ratifiers at the time of ratification, argument based on such text will be legally valid. Indeed, it will be legally valid, though morally illegitimate, for such textual arguments to trump arguments of moral principle even though this implies that the internally correct answer to the relevant legal-rights question is inconsistent with the relevant society’s moral commitments. Two points should be made about this unpleasant conclusion. First, there are limits to the extent to which a society of moral integrity’s constitutional law can be morally illegitimate. Beyond some point, a society’s failure to eliminate such illegitimate constitutional provisions will lead to the conclusion that it is not a society of moral integrity. Second, in my judgment, although the pre-Reconstruction United States Constitution contained morally illegitimate slavery clauses and failed to impose constitutional obligations on the states to fulfill their moral commitments, the current United States Constitution does not include any morally illegitimate provisions, though it does include many “stupidities.”24 (6) Were it not for the possible existence of one or more morally illegitimate constitutional provisions, the fact that arguments of moral principle dominate morally legitimate legal discourse in our culture would imply the existence of internally right answers to all legal-rights questions. Absent any morally illegitimate constitutional provisions, the dominance of arguments of moral principle would produce this result by rendering legally irrelevant (because of their moral illegitimacy) some prudential arguments that favor a different conclusion from the one supported by the other, legitimate modes of legal argument and by co-opting the other modes of legal argument (textual, historical, structural, precedential/practice-based, and one type of prudential legal argument) that might otherwise favor different conclusions or a conclusion that is inconsistent with our basic moral principle. (7) In fact, the presence of morally illegitimate constitutional provisions does not defeat the conclusion that there are internally right answers to all legal-rights questions in a rights-based culture. In particular, the fact that textual arguments based on morally illegitimate constitutional provisions dominate arguments of moral principle in some constitutional cases does not undermine the internally-right-answer thesis, because in these cases there still is an internally right answer: the morally illegitimate answer favored by the relevant textual argument.

24. See CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES (WILLIAM N. ESKRIDGE, JR. & SANFORD LEVINSON eds., 1998).

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2. My Position on the Legitimate and Valid Way to Identify Different Types of Legal Rights in the United States In the United States, legal rights have diverse origins and diverse moral bases. Thus, a large number of constitutional rights, most common law rights, and some statutory rights simply reflect moral rights rather than any official act by our Founding Fathers or any government they created. Other common law and constitutional rights reflect a combination of the interest of moral-rights holders in being given fair notice and the fact that courts make mistakes when assessing particular legal-rights claims that were based on alleged moral rights. In other words, these rights reflect the fact that a convincing, fair-notice-related moral-rights argument can be made for a doctrine of precedent that legitimizes a court’s upholding a legal right that would not have existed in a matter of first impression. Other constitutional rights, as well as most non-constitutional legal rights, were created by constitutional provisions, statutes, regulations, executive orders, or city ordinances that were not required by our moral-rights commitments. The creation of a few of these legal rights secured a moral right that could have been secured in other ways as well. However, most such legal rights were created instead to instantiate ultimate values, to achieve concrete goals, or to generate economic rents for one or more segments of our society’s members. In my view, the internally correct way to discover the law varies with the basis of the legal right that is being alleged. When the legal right at issue purportedly reflects a moral right that pre-exists any official act by the State, then “arguments of moral principle” control the relevant legal-rights analysis both directly and indirectly in the ways previously described. In contrast, when the asserted legal right does not derive from such a moral right, arguments of moral principle do not play the direct role that they play when it does. However, in these latter cases, arguments of moral principle still play an indirect role. In particular, such arguments still determine the weight courts should give to precedent, whether a court should hold a particular statute or statutory provision void for vagueness, and the legal force that should be given to information about the intent of the legislators who passed a particular statute or the intent of the parties who entered into a (supposed) contract. In general, when the alleged legal right does not derive from a pre-existing moral right, the internally right way to assess the relevant claim is to use: (1) Textual arguments that focus on the words of the provision of the law-creating act or contract whose meaning is being disputed; that focus on whether a particular interpretation of the passage

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under dispute would render other provisions in the document irrelevant or would contradict those provisions at the level of meaning; whether a particular interpretation of the passage under dispute would balance the values, interests, or goals at stake in the way in which they were balanced by the other provisions of the relevant document; the nature of the document being considered, whether it is a constitution, statute, ordinance, or private contract; the placement of the relevant provision in the document as a whole—for example, whether a disputed provision of a constitution is in a power-creating or power-limiting section of the document and whether a disputed provision in a contract is in a dutycreating or remedial section of the document; (2) “Structural” arguments, which focus on some fundamental constitutional implications of a society’s moral commitments; some basic features of a government’s constitutional institutional arrangements; the personal ultimate values or concrete goals a particular constitutional provision, statute, or ordinance was designed to achieve; or the concrete goals that led the parties to a contract to participate in the transaction it governs; (3) “Historical” arguments, which focus on the meaning of the text’s individual words or expressions in the relevant context at the time of the enactment’s passage or contract’s formation; alternative textual formulations that were rejected; the causes of the enactment’s passage or contract’s formation; the content of other decisions made contemporaneously by an enactment’s supporters or a contract’s participants; statements made by an enactment’s supporters or a contract’s participants about the values they were hoping to further, results they were hoping to achieve, or more concrete goals they were trying to secure, etc.; and (4) Any precedent or interpretive practice that bears on the relevant text’s interpretation.

B. Alternative Positions on Legal-Rights Analysis in the United States Most legal academics do not accept my position on common law and constitutional interpretation. Their disagreement usually reflects their rejection of my contention that a strong distinction can be drawn between moral-rights and moral-ought discourse; my claim that members of our culture do draw such a distinction and do believe that moral-rights conclusions trump moral-ought conclusions when the two conflict; my contention that, to be morally legitimate, the use of a legal argument in a given culture must be consistent with that culture’s moral commitments; and/or my related argument

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that arguments of moral principle dominate legitimate legal argument in our culture. Those who reject my jurisprudential position subscribe to a wide variety of alternative jurisprudential views. Some of these alternative positions relate specifically to constitutional interpretation, but others apply to common law, statutory, and regulatory rights. Limitations of space preclude me from discussing all the alternatives to my position and from discussing those I do consider in great detail.25 However, I need to say enough about a sufficient number of them to show that my claim that economic-efficiency analysis is not an algorithm for legal-rights analysis does not depend on the correctness of the jurisprudential position to which I subscribe. 1. Philip Bobbitt Philip Bobbitt has argued26 that legal practice is self-legitimizing; that our culture’s legal practice is to discover the law by using different variants of textual, historical, structural, precedent-related, prudential, and what he calls “ethical” argument, which is related to the ethos of limited government; that none of these modes of argument dominates; that an internally right answer to a legal-rights question exists if and only if all variants of all these modes of argument that have been employed to a quantitatively significant extent favor the same legal interpretation; that when the different relevant modes of argument or different variants of these modes favor different outcomes, no internally right answer to the legal-rights question at issue exists; and that when no internally right answer to a legal-rights question exists, a judge must follow his conscience to decide the case. 2. Legal Realists From a jurisprudential perspective, the Legal Realists are not a uniform group. Some Legal Realists believe no internally right answers to certain legal-rights questions exist because the relevant legal rights turn on the proper interpretation of open-textured language in a constitution, statute, administrative regulation, or judicial opinion whose meaning is critically indeterminate.27 Other Legal Realists believe that there is no internally right answer to some legalrights questions because the relevant legal rights turn on legal practice—for example, canons of statutory construction or doctrines of precedent—that are irresolvably and critically internally25. For a more detailed analysis of a larger set of alternatives to my jurisprudential position, see MARKOVITS, MATTERS OF PRINCIPLE, supra note 9, at 90-194. 26. See generally PHILIP BOBBITT, CONSTITUTIONAL FATE (1982); PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION (1991) . 27. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND (1930).

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inconsistent.28 Still other Legal Realists have little interest in whether internally right answers to all legal-rights questions exist. They are interested, rather, in discovering the determinants of the answers that judges give to intellectually contestable or socially contested legal-rights questions, regardless of whether these questions are essentially contestable. Relatedly, they are interested in the most effective way for lawyers to argue cases whose internally correct resolution is contestable or socially contested.29 Some of these latter Legal Realists provide socio-economic explanations of judicial decisions in such cases. Others emphasize individual, judge-oriented, personal/psychological history or value-preference explanations of judicial decisions. Still others offer explanations of judicial behavior that focus on the general professional socialization of judges and lawyers.30 Legal Realists do not explicitly address how judges are obligated to or ought to decide cases that have internally right answers. I suspect that at least some of these scholars believe that judges ought to provide internally correct answers to legal-rights questions when such answers are available. This suspicion is supported by the fact that some Legal Realists, including Karl Llewellyn, have concluded that, when dealing with contract or commercial disputes that cannot be resolved by reference to language alone, judges ought to make the decision that conforms with the relevant sub-community’s practice and expectations.31 To me, this recommendation implies that internally right answers exist to the legal-rights questions concerned. The internally right answer is the answer that is compatible with the legitimate expectations of the parties involved, which in these instances create and are created by the business practices in question. In cases in which Legal Realists believe no internally right answer exists, they seem to think that judges ought to make good policy choices by combining sound social science with personal ultimate values (whose contestability they generally do not mention or explore).

28. For a discussion of the canons of statutory construction, see Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1930). For a discussion of the doctrines of precedent, see Michael Sean Quinn, Argument and Authority in Common Law Advocacy and Adjudication: An Incredible Pluralism of Principles, 74 CHI.-KENT L. REV. 655 (1999). 29. For an argument that Karl Llewellyn belongs in this category, see Neil MacCormick & Zipporah Batshaw Wiseman, Llewellyn Revisited, 70 TEX. L. REV. 771 (1992) (book review). Llewellyn’s most famous book is K.N. LLEWELLYN, THE BRAMBLE BUSH (1930). 30. For a discussion of these latter variants of Legal Realists, see Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267 (1997). 31. This approach is manifest in Llewellyn’s work on The Uniform Commercial Code. See also id. at 282.

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3. Critical Legal Studies Unlike Philip Bobbitt and many Legal Realists, members of the Critical Legal Studies (CLS) movement believe that there are internally right answers to few or virtually no legal-rights questions.32 CLS members also disagree with Bobbitt and the Legal Realists about how judges should respond to legal-rights questions for which there is no internally right answer. Unlike Bobbitt, who thinks that a judge should make use of his own personal ultimate values by exercising his conscience and, unlike the Legal Realists, who paid little attention to the contestability of personal-ultimate-value choices or their individual preference for some values over others, CLS members want judges to instantiate the values the CLS members prefer. Originally, CLS members indicated that the relevant “legal decisions” should be based on a poorly defined mix of equal-resource and equal-opportunity egalitarianism, which they thought socialist political programs could best secure. More recently, CLS adherents have argued that such decisions should be guided by an inadequately specified set of communitarian values. I should admit that CLS members usually do not direct their opinions at judges, probably because their view of law as a weapon of the powerful makes them pessimistic about the likelihood that judges would follow their advice.33 4. Legal Pragmatists The Legal Pragmatists have not attempted to provide a detailed account of legitimate legal argument. They have confined themselves to claiming that judges should adopt the approach to legal interpretation that “works” in some undefined sense. They argue that attempts to derive answers to particular legal-rights questions from abstract accounts or grand theories of law, or even from such ac32. In part, their view on this issue reflects their general view that the meaning of language is supplied by its interpreter and not its author. And in part, it reflects their mistaken claim that the proof of two facts can establish the internal inconsistency of Legal Liberalism: first, that the different principles to which Liberal Legalism is committed sometimes favor different outcomes in a given case, and second, that a principle that carries the day in one case fails to do so in another. This claim is mistaken because it ignores two other facts: first, that, unlike rules, which are supposed to be decisive whenever they apply, principles have a dimension of weight, and second, that the relative weights that should be assigned to two or more given principles will vary among the cases to whose resolution they are relevant. 33. A list of the best CLS scholarship would include ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POLITICS (1975); ROBERTO MANGABEIRA UNGER, LAW IN MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781 (1983).

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counts of particular fields of law, do not work. What does work, they argue, are approaches that introduce small changes to the law whose consequences can be assessed.34 The Legal Pragmatists have never specified the criterion or criteria they think should be used to assess whether a particular doctrine works. I suspect that they think that some ultimate-value combination should be used for this purpose. At least, this conclusion is implied by their hostility to grand theory. If they believed that moral-rights claims were essentially different from moral-ought claims and that at least some legal decisions were supposed to protect moral rights and can be assessed by what I call moral principles as opposed to ultimate values, they would not be so hostile to the genre of grand theory that attempts to give an account of the principles of justice our society has committed to instantiating: if moral rights were relevant, a decision that implicates them could not “work” unless it secured justice. 5. Ronald Dworkin Ronald Dworkin seems to think that legal interpretation sometimes should be dominated by moral-principle analysis and sometimes by a kind of ultimate-value analysis.35 I do not agree with Dworkin’s account of legitimate legal interpretation. To my mind, his use of a “best light” criterion to assess candidates for our society’s “basic moral principle” title (my language, not his) undermines the strong distinction between what I call “moral principles” and “personal ultimate values.” His argument that to be a community of principle, or to have moral integrity, a society must consistently implement some individual ultimate value or specifiable combination of ultimate values unjustifiably anthropromorphizes the concept of “the moral integrity of a State.” Dworkin’s conception of “a society of integrity” is unjustifiable in part because, as social-choice theory teaches, group decisions will often be inconsistent from any valueperspective despite the fact that each member of the group has voted perfectly consistently. However, for current purposes, the critical point is that, on Dworkin’s account, the internally right answer to legal-rights questions (1) sometimes depends on a moral principle of “equal respect and concern” similar to the basic moral principle on which I claim our society is committed to grounding its moral rights

34. The best discussion of Legal Pragmatism I know is Thomas C. Grey, Freestanding Legal Pragmatism, 18 CARDOZO L. REV. 21 (1996). For several other useful examples or discussions of Legal Pragmatism, see Symposium, The Revival of Pragmatism, 18 CARDOZO L. REV. 1 (1996). 35. See RONALD DWORKIN, LAW’S EMPIRE (1986); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1978).

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discourse and conduct and (2) sometimes depends on the ultimate values that the State has consistently tried to instantiate.36 6. John Hart Ely John Hart Ely maintains that judicial interpretation of the fundamental-fairness clauses in the United States Constitution should be limited to protecting certain values he claims the Constitution’s text indicates are constitutionally fundamental—rights to fair judicial process, rights to fair political representation, and the right of minorities not to be disadvantaged by a lack of a fair share of political power. According to Ely, judges should reject all other constitutional rights claims in the service of the value of popular sovereignty, majoritarianism, or democracy (a value whose basis and content he fails to examine).37 I do not think that Ely’s reading of the Constitution is persuasive or that his conclusion is correct. For present purposes, however, it suffices to note the process values and substantive values he thinks should dominate constitutional interpretation. 7. Legal Historians of Ideology Other legal academics claim that a review of the historical evidence on the ideological commitments of Americans in the second half of the eighteenth century implies that the United States Constitution should be held to instantiate civic-republican, communitarian, or libertarian values.38 Once more, although I disagree both with their historical conclusions and with the constitutional conclusions they base on them, for present purposes the relevant point is their conclusion that communitarian or libertarian values should dominate constitutional interpretation. 8. Strict Constructionists The final jurisprudential position I will mention is the strict constructionists’ position on constitutional interpretation. According to the strict constructionists, courts should hold State choices unconstitutional only if they contravene the self-declaring meaning of the Constitution’s text or the concrete interpretive expectations of 36. For a more detailed comparison of Dworkin’s position to my own, see MARKOVITS, MATTERS OF PRINCIPLE, supra note 9, at 91-109. 37. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 101-02 (1980). 38. For a discussion of the relevance of civic-republican and communitarian values to constitutional interpretation, see CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993). For the possible relevance of libertarian values to Constitutional law and common law interpretation, see RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985), and Richard A. Epstein, Privacy, Property Rights, and Misrepresentations, 12 GA. L. REV. 455 (1978).

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the text’s ratifiers.39 In all other cases, judges should hold State choices constitutional. Once more, this conclusion is said to be justified by our supposed (unexamined) commitment to popular sovereignty, majoritarianism, or democracy. I do not agree with this position. No text has self-declaring meaning. The Framers did not think,40 and our general social practice does not suggest, that interpreters of this kind of document should be bound by its drafters’ and ratifiers’ specific expectations. Judicial review is not inconsistent with our commitment to democracy, which is a corollary of the same liberal basic moral principle from which our other substantive and process rights derive. For present purposes, however, the critical point is the substance rather than the persuasiveness of strict constructionism. III. ECONOMIC-EFFICIENCY ANALYSIS AS AN ALGORITHM FOR GENERATING MORAL-RIGHTS AND MORAL-OUGHT CONCLUSIONS IN A LIBERAL, RIGHTS-BASED SOCIETY A. Economic-Efficiency Analysis as an Algorithm for Generating Moral-Rights Conclusions in a Liberal, Rights-Based Society This section argues against the claim that economic-efficiency analysis is an algorithm for generating moral-rights conclusions in a liberal, rights-based society. It establishes this conclusion by demonstrating that economic-efficiency analysis is insensitive to four issues or distinctions that sometimes play a critical role in moral-rights analysis. It also explains why the four arguments that some economists have offered to establish their contrary conclusion that economic-efficiency analysis is an algorithm for the generation of moralrights conclusions in our culture cannot bear scrutiny. 1. The Insensitivity of Economic-Efficiency Analysis to Considerations That Play Crucial Roles in Some Liberal, MoralRights Analyses Four deficiencies of economic-efficiency analysis are relevant in the current context. First, economic-efficiency analysis can provide no insight into the defining attributes of moral-rights holders. It cannot identify the creatures or entities that have rights-related interests; indeed, it cannot even establish its own boundary condition (cannot help the economist identify the creatures or entities whose equivalent-dollar gains and losses or revealed preferences count for 39. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990); Lino A. Graglia, “Interpreting” the Constitution: Posner on Bork, 44 STAN. L. REV. 1019 (1992). 40. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).

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economic-efficiency-analysis purposes). Second, economic-efficiency analysis does not distinguish between prejudices and other tastes. Third, economic-efficiency analysis does not distinguish between (1) a party’s psychological or material welfare interest or concern in an event, decision, or piece of information and (2) its “entitlement” interest or concern in the relevant matter. And fourth, just as economic-efficiency analysis cannot solve the boundary condition issue, it cannot reveal the basis of our negative rights and positive rights.41 The last three of these deficiencies are interconnected: all relate to the fact that economic-efficiency analysis is insensitive to the liberal duties of respect and concern. The inability of economic-efficiency analysis to identify whose interests count precludes such analysis from generating moral-rights conclusions whenever those conclusions turn on whether a particular creature is a moral-rights holder—for example, whether a fetus or one of its precursors is a moral-rights holder in an abortion or in tort cases, whether someone in an irreversible coma is a moral-rights holder, or whether members of future generations are moral-rights holders. The fact that economics does not distinguish prejudices from other tastes causes the economically efficient conclusion to diverge from the conclusion that would secure the relevant parties’ moral rights in a liberal, rights-based society in cases that involve discrimination42 in which the discriminators do not have the right to engage.43 This deficiency would therefore be critical in those slavery cases, school-segregation cases, large-firm employment discrimination cases, and segregative zoning cases in which the operative prejudices made the relevant discrimination economically efficient. The insensitivity of economics to the moral status of the various kinds of “welfare interests” that individuals may have in particular subjects or outcomes may cause the economically efficient conclusion to diverge from the conclusion that would secure the rights of the relevant individuals in cases in which someone has a psychological or material welfare interest that our moral commitments imply should be given no weight or even a negative weight. Cases involving parties—such as peeping Toms or readers of gossip columns—who place a high equivalent-dollar value on information that is none of their legitimate concern fall into this category. Indeed, in such cases, the reference to “weights” is actually misleading: the securing and/or “publication” of the information in question should rather be said to 41. That is, the positive rights that individuals have to certain resources or opportunities. 42. In the pejorative sense of the word. 43. There are situations in which individuals do have a moral right to indulge their prejudices. For example, individuals are entitled to base their choice of a spouse, inter alia, on their prejudices.

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be impermissible because it violates the privacy interest of the party to whom the information pertains. Economic-efficiency analysis would also fail to yield correct moral-rights conclusions on this account when the issue is the right of an individual to engage in conduct he finds attractive because he places a high equivalent-dollar value on inflicting pain on or degrading a moral-rights holder. The inability of economics to determine whether a possible moralrights holder has a positive right to something makes economicefficiency analysis an unsuitable surrogate for moral-rights analysis whenever the force of the argument for securing a moral-rights holder’s right is not captured by the equivalent-dollar value that the relevant beneficiary places on the good or service in question. This deficiency of economics is relevant not only (as we have just seen) when assessing the moral rights of the potential victim of a wealthy sadist but also when assessing the positive right of a potential moral agent to the resources he requires to become and remain an individual of moral integrity, regardless of whether he is mentally or physically handicapped. 2. Four Erroneous Arguments That Underlie the Mistaken Conclusion That Economic-Efficiency Analysis Is an Algorithm for the Assessment of Moral-Rights Claims Obviously, the various individual scholars whom I would classify as supporters of standard law-and-economics do not make all the errors that this section attributes to members of their group. Nevertheless, I believe that most economists and lawyer-economists who claim that the analysis of economic efficiency provides an algorithm for the “correct” resolution of all moral-rights claims subscribe to this position because they accept the first erroneous argument as well as one or more of the second through fourth erroneous arguments detailed below. The first argument in question is negative. It responds to my kind of critique of the claim that economic-efficiency analysis is an algorithm for moral-rights analysis by rejecting as incoherent44 my account of our society’s moral-rights discourse. Admittedly, proponents of this argument fall into two camps. Some believe that the very concepts “fairness,” “justice,” and “moral rights” (as opposed to my conceptions of them) are incoherent. Others believe that these concepts (as opposed to my conceptions of them) have a coherent meaning that is compatible with their claim that economic-efficiency analysis is an algorithm for moral-rights analysis.

44. That is, lacking objectively ascertainable denotative meaning.

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Numerous discussions that I have had with economists who take this position have led me to conclude that their belief that my conception of moral-rights argument is incoherent reflects their broader view that, to be coherent, an argument must contain only noncontestable, mechanically ascertainable critical concepts and must require no conceptually contestable balancing of considerations (paradigmatically, should involve the derivation of conclusions from a mathematical formula).45 I do not deny that one could make other arguments for the proposition that my kind of account of moralrights discourse is essentially non-sensical. Philosophers such as A.J. Ayer46 and psychologists such as B.F. Skinner47 have done so. However, their conclusion is now rejected by philosophers such as Rawls and Dworkin, who argue that meaningful, consistent, complementary reasons whose point is revealed by normative theory can establish moral-rights conclusions and that moral argumentation is capable of providing reasons as opposed to mere inclinations or tastes for action.48 The next three relevant arguments are positive: They attempt to justify the claim that economic-efficiency analysis is an algorithm for generating moral-rights conclusions by demonstrating that economicefficiency analysis will always yield just conclusions. The first contains the following two premises: (1) The decision that maximizes the total utility of all moral-rights holders is the just decision, the decision that secures the relevant parties’ moral rights; and (2) Given the impossibility of making interpersonal comparisons of utility, it is appropriate to assume that the equivalent-dollar gains

45. I have had to rely on discussions with economists rather than on arguments they have published because the economists who take the position I am now addressing do not argue for it in print—they either assert it without justification or (worse yet) simply assume it to be true. For a recent example in which two highly respected law-and-economics scholars (a lawyer-economist and a lawyer) simply assert the incoherence of fairness arguments that do not focus on the maximization or distribution of utility or welfare in an Article that purports to demonstrate the irrelevance of such fairness considerations, see Kaplow & Shavell, Fairness Versus Welfare, supra note 3. Admittedly, Kaplow and Shavell have a second (equally indefensible) reason for concluding that fairness should be ignored—namely, that even if fairness notions have denotative meaning, their consideration would not lead an evaluator to alter his conclusions. 46. A.J. AYER, LANGUAGE, TRUTH, AND LOGIC (1952). 47. B.F. SKINNER, BEYOND FREEDOM AND DIGNITY (1971). 48. My treatment of the negative argument just discussed in the text has profited from my reading of Benjamin C. Zipursky, Should Tort Professors Use Only Welfarist Concerns? A Commentary on Kaplow and Shavell’s “Principles of Fairness v. Human Welfare,” (2001) (unpublished manuscript, on file with author).

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and losses a choice generates will be associated with equal average utility gains or losses.49

Neither of the premises can bear scrutiny. Even if one ignores the problematic character of mapping the various affective experiences that human beings have50 into utility; the difficulty that utilitarians have in justifying any boundary condition that limits the creatures whose utility counts to human beings;51 the fact that utilitarianism implies that the moral quality of any individual’s conduct is essentially irrelevant to the amount of resources he ought to receive (though it may be relevant for instrumental reasons); and the related fact that utilitarianism does not take the distinction between individuals seriously, no foundationalist, Aristotelian, or constructivist argument has established the objective correctness of utilitarianism. Furthermore, no conventionalist argument can establish its internal correctness, since members of our culture do not decide moral-rights or justice questions by applying a utilitarian standard. Among other things, utilitarianism does not capture our moral practices because it does not distinguish between moral-rights discourse and moral-ought discourse and because it fails to make the intentionality of actors directly relevant to the right answer to any moral-rights question one could pose about their position. Moreover, even if the internally right answer to any relevant moral-rights question were always the answer that maximized utility, the answer to those questions that maximized economic efficiency would not be the internally right answer to such questions. Certainly, a contrary conclusion cannot be established by citing the supposed impossibility of making interpersonal comparisons of utility. Such an argument fails for two reasons. The first is admittedly contestable. I reject the premise that it is impossible to make interpersonal comparisons of utility. Certainly, we at least purport to make such comparisons frequently. Thus, we say that Ed is happier than Dick. We give a particular gift to Mary rather than to Jane be49. Richard Posner made this standard economics argument in the first edition of his famous book. RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 241 (1973). I have heard many economists make precisely the same argument. I write “I have heard” because economists articulate this assumption orally rather than in print. For a discussion of economists’ historic belief in the impossibility of making interpersonal comparisons of utility, see I.M.D. LITTLE, A CRITIQUE OF WELFARE ECONOMICS 13 (2d ed. 1950). Admittedly, Kaplow and Shavell operate on the assumption that interpersonal comparisons of utility are possible and recognize that, from various value-perspectives that cannot be dismissed as incoherent or objectively wrong, it may be desirable to focus on the distribution of utility for reasons that are at least partially unrelated to its maximization. See Kaplow & Shavell, Fairness Versus Welfare, supra note 3. 50. For example, ecstasy, happiness, satisfaction, pleasure, displeasure, pain, dissatisfaction, depression, and terror. 51. For example, a boundary condition that excludes non-human animals who can experience “utility.”

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cause we think Mary will get more pleasure from it. Or we decide to invite Ted and Alice rather than Bob and Carol to a dinner party because we think that the couple Ted and Alice will enjoy it more than the couple Bob and Carol, that our other guests will get more pleasure from interacting with Ted and Alice than from interacting with Bob and Carol, or that the party will maximize the utility of its participants taken as a group if Ted and Alice are invited. Of course, we may be fooling ourselves when we make such calculations and statements: the kinds of evidence we use to make and evaluate the relevant claims52 may not in fact be adequate for the purpose. However, I do not see how one can hold such a position without lapsing into solipsism: that is, if the kinds of evidence to which I have referred do not justify conclusions about the affective states of other minds, I do not understand the basis on which one can presume that other minds exist. The second reason that the “impossibility of making interpersonal comparisons of utility” argument fails is that, contrary to its second premise, it is not appropriate or neutral to assume that the average equivalent-dollar gained by a choice’s beneficiaries and the average equivalent-dollar lost by a choice’s victims involve the same absolute change in utility for the party in question. This equal-average-utility assumption is arbitrary and counterintuitive, not neutral and appropriate. For both reasons, therefore, I do not think that one could establish the universal, objective, or internal correctness of the most economically efficient resolution of a moral-rights issue by citing the supposed impossibility of making interpersonal comparisons of utility—even if utilitarianism did capture the universally binding norm justice or our society’s justice conception. The second positive argument that has led many economists to conclude that economic-efficiency analysis is an algorithm for the generation of moral-rights conclusions contains the following two premises: (1) Justice is an increasing function of the extent to which a variety of liberal principles (in my terminology, more concrete corollaries of the basic liberal principle) and personal ultimate values are secured; and (2) Decisions that increase economic efficiency increase the extent to which these various principles and values that are constitutive

52. For example, evidence that relates to facial expressions, tone of voice, demeanor in general, our own assessments of our own experience, and the reports others give of their experiences.

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of justice are secured, in comparison with the status quo ante, to a far greater extent than is generally recognized.53

I have two objections to this argument. First, I do not think that the argument’s definition of justice54 either has been established by any (narrowly-defined) foundationalist, Aristotelian, constructivist, or natural law argument or captures our moral-rights practices. Second, even if the argument’s first premise correctly formulates the universally binding concept of justice, or our society’s conception of justice, and even if its second premise correctly asserts that economically efficient decisions increase the extent to which the principles and values that are arguments in its conception of justice are secured in comparison with the status quo ante,55 this argument would not justify the conclusion that economically efficient decisions promote justice as formulated as much as some other, less-economicallyefficient decision might do. The third positive argument that has led some economists to conclude that economically efficient decisions are always just is an argument from hypothetical consent.56 They contend that: (1) Economically efficient decisions, or at least a broad subset of such decisions including virtually all the kinds of common law decisions judges must make, are in everyone’s ex ante interest; (2) Everyone would, therefore, consent to such decisions ex ante if given the opportunity to do so; (3) The making of economically efficient decisions is therefore consistent with, perhaps is required by, our commitment to autonomy; and 53. Richard Posner basically made this argument in Posner, Efficiency Norm, supra note 4. 54. The argument defines justice as a function whose value increases with the extent to which a variety of liberal moral principles and personal ultimate values are secured. Note the mathematical character of the first premise’s definition of justice. 55. Indeed, even if such decisions increase the extent to which the relevant principles and values are secured to a far greater extent than is generally recognized. 56. Admittedly, some proponents of this argument may not take it to be a separate argument for the justness of economically efficient decisions. In particular, although none of the relevant scholars has even made this point, some scholars who make the hypothetical-consent argument may find it salient because they believe that (1) if it could be shown that hypothetical consent would be given to all economically efficient policy choices, that demonstration would establish that economically efficient policies would always protect the autonomy interests of those they affect, and (2) autonomy is one component of the kind of envelope concept of justice that they, as well as proponents of the second positive argument just described, adopt. I should also admit that something like this hypotheticalconsent argument may be playing a role in the third positive argument to be discussed in the text—namely, that all economically efficient choices ought to be adopted because a rule requiring them to be made would move the economy to a Pareto-superior position in the long run. However, the importance of consent arguments in philosophical debate has led me to consider this “hypothetical-consent” argument separately here.

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(4) Our conception of justice makes autonomy paramount.57

Three objections can be made to this argument. The first is probably the least important in this context: Even if, as I believe, one secures justice by making those choices that maximize moral-rightsrelated interests on balance, and even if, in a liberal, rights-based society, the basic duty of respect generally implies that each competent moral-rights holder has a prima facie right to develop his own conception of the good and to act on that conception constrained only by the moral rights of others, the liberal, rights-based State’s commitment to autonomy will not imply that it is bound to allow individuals to make all choices they desire when their choice does not disserve the moral-rights-related interests of others. For example, a liberal, rights-based State is not obligated to allow the moral-rights holders for whom it is responsible to sell themselves into slavery, to take addictive drugs that will cause them to lose their autonomy, or to enter into various kinds of relationships that seem highly likely to cost them their autonomy. Nor, I suspect, is it required to allow them to ride motorcycles without wearing helmets, even if no one else will be affected by their avoidable injury. The second and third objections to the argument from hypothetical consent are more important in the current context. The second objection argues that the autonomy argument from consent requires actual consent, not hypothetical consent. The fact that someone would have consented to something if given the opportunity to do so is not an adequate predicate for concluding that his autonomy interests are furthered by holding him to a deal or arrangement to which he did not consent. For example, the fact that on Monday an individual would have accepted a deal or arrangement or policy that will harm some people ex post because at that time he did not know whether he would be an ex post beneficiary or victim of the choice in question does not in itself bind him to accept it on Wednesday, when he knows its actual results. Admittedly, the features of the policy that would have led him to accept it on Monday may provide a basis for the conclusion that the policy in question was just. However, any argument that relies on those features is not a consent argument. Third, even if hypothetical consent would establish the justness of any policy, the “hypothetical consent” argument would not establish the justness of the overwhelming majority of economically efficient choices of any kind because neither economically efficient choices in general nor the economically efficient resolution of common-lawrights questions are likely to leave everyone better off ex ante while 57. This argument is best articulated by RICHARD POSNER, THE ECONOMICS OF JUSTICE 92-99, 101-03 (1981).

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leaving no one worse off ex ante. Proponents of the hypotheticalconsent argument58 have vastly overestimated the frequency with which economically efficient policies will leave all those they affect better off ex ante. In my judgment, economically efficient policies will virtually always have one or more ex ante losers. Richard Posner, the major proponent of the hypothetical-consent argument for the justness of all economically efficient choices, has tried to respond to this reality, whose empirical importance he vastly underestimates, by insisting that “only a fanatic would insist that unanimity be required” in this context.59 In fact, however, for consent arguments to work, there must be unanimity. In this context, fanaticism is the order of the day. In short, none of the arguments for the supposed justness of economically efficient decisions or for the incoherence of the concept of justice can bear scrutiny. B. Economic-Efficiency Analysis as an Algorithm for Generating Moral-Ought Conclusions in a Liberal, Rights-Based Society Economic efficiency is not the only personal ultimate value on which moral-ought evaluations are based. In fact, economic efficiency is not even a personal ultimate value: we do not value greenbacks or greenback equivalents in and of themselves. Nor is there any reason to believe that the things that we do value are monotonically related to economic efficiency. For these reasons, it would be extremely surprising if the analysis of economic efficiency were an algorithm for generating moral-ought conclusions in our culture. This section elaborates on this point by examining in more detail the ability of economic-efficiency analysis to generate the same conclusions as the two types of moral-ought arguments previously distinguished. This section also criticizes two arguments that some economists claim justify their conclusions that economic-efficiency analysis is an algorithm for the generation of all non-tax-policy moral-ought conclusions.

58. Posner cites “implied warranties of habitability” decisions as an example of economically inefficient, common law decisions that leave everyone worse off ex ante. Id. at 102. My own study demonstrates that those decisions will leave the members of some groups ex ante better off and the members of other groups ex ante worse off in circumstances in which the individuals in question will be able to determine ex ante the group to which they belong. Richard S. Markovits, The Distributive Impact, Allocative Efficiency and Overall Desirability of Ideal Housing Codes: Some Theoretical Clarifications, 89 HARV. L. REV. 1815 (1976). I have no doubt that this is the case for most common law decisions, and a fortiori for public policy choices in general. 59. POSNER, supra note 49, at 97.

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1. Three Reasons Why Economic-Efficiency Analysis Is Not an Algorithm for the Generation of Moral-Ought Conclusions in Our Culture For at least three reasons, economic-efficiency analysis cannot serve as an algorithm for the generation of moral-ought conclusions in our culture. First, economic-efficiency analysis cannot identify the creatures whose positions we ought to consider. Second, even if, contrary to fact, the first point could be ignored and economic-efficiency conclusions were always identical to utilitarian conclusions, economic-efficiency analysis could not serve as an algorithm for the generation of all moral-ought conclusions in our society because many such evaluations are made from a value-perspective that is either not exclusively utilitarian or not utilitarian at all. This fact is salient because the non-utilitarian values in question will not always favor economically efficient decisions. Thus, it will usually not be economically efficient to give everyone the same amount of resources since, from the perspective of economic efficiency, doing so will distort the incentives of individuals to invest in their human capital, to do the type of labor that is most economically efficient for them to perform, and to work as long and as assiduously as would be economically efficient. For the same reason, it will usually not be economically efficient to distribute resources so as to equalize the utility that all individuals obtain from them or that all individuals experience altogether. It will also not be economically efficient to give everyone the same opportunites. For example, since a decision to allow some individuals to perform a socially valued task will usually be less economically efficient than a decision to allow other individuals to do so, the effectuation of this variant of the equal-opportunity norm will usually be economically inefficient. As Part IV will suggest, the same conclusion will hold for many types of libertarian norms. Third, even if one could ignore the first, boundary-condition issue and all moralought evaluations were based purely on utilitarianism in our culture, economic-efficiency analysis could not serve as an algorithm for the generation of all moral-ought conclusions in our culture because the choice that maximizes economic efficiency is not generally the choice that maximizes utility. Thus, a choice to shift from a less economically efficient option to the most economically efficient option will decrease utility if the marginal utility of money over the relevant range to the shift’s victims is sufficiently higher than the marginal utility of money over the relevant range to the choice’s beneficiaries. For example, a choice that increases economic efficiency by giving its beneficiaries the equivalent of a $100 gain while imposing the equivalent of a $50 loss on its victims will decrease utility if the utility-value of

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the average equivalent-dollar lost is more than twice the utility-value of the average equivalent-dollar gained.60 2. A Critique of Two Arguments That Some Economists Believe Establish the Ability of Economic-Efficiency Analysis to Serve as an Algorithm for Generating All, or Most, Public Policy MoralOught Conclusions in Our Culture a. A Critique of the Argument That All Economically Efficient Decisions Ought to Be Made Because Making Them Will Bring the Economy to a Pareto-Superior Position.—Some economists believe that economic-efficiency analysis’ ability to generate all relevant moral-ought conclusions can be established by an argument based on the following two premises: (1) Any decision that moves the economy to a Pareto-superior position (that makes somebody better off without making any one worse off) ought to be made; and (2) A policy of making all economically efficient decisions will, over the long haul, make some people better off and no one worse off than they would be if all economically efficient decisions were rejected.61

Unfortunately, this argument cannot bear scrutiny: both its premises are wrong, and, even if they were right, they would not establish its conclusion. The first premise is wrong because, from some legitimate personal-ultimate-value perspectives,62 some moves to Pareto-superior positions may be morally undesirable.63 The second premise is empirically wrong because, given the fact that individual economically efficient decisions may have substantial, adverse distributional effects on some of their victims, even over the long haul a decision to make all economically efficient decisions might not move the society to a position that is Pareto-superior to the status quo ante. Moreover, even if the two premises of this argument were correct, the argument would not justify the conclusion that the economically efficient choice always ought to be made, because, from various personal-ultimate-value perspectives, one or more moves that are not 60. As might occur if the relevant beneficiaries are rich while the relevant victims are poor. 61. See Hicks, supra note 4; Hotelling, supra note 4. See also Polinsky, supra note 4, at 407-12. 62. For example, from the standpoint of retributionist values or, more generally, values that require rewards or material welfare to match the quality of the relevant actor’s moral performance in general. 63. For example, choices that benefit a heinous criminal and harm no one in any straightforward sense.

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Pareto-superior in comparison with the status quo ante may be preferable to a move that is Pareto-superior in comparison with the status quo ante. b. A Critique of the Double-Distortion Argument Argument.—The “Double-Distortion Argument” argument demonstrates that, transaction-cost considerations aside, it will always be more economically efficient to redistribute income from members of one earned-income class (the disfavored earned-income class) to members of another earned-income class (the favored earned-income-class)64 by making taxes vary appropriately with their earned incomes rather than by making (1) the prices the government charges for the various goods and services it sells vary with the earned income of the buyer, (2) the legal liability and damage rules courts use to resolve legal rights disputes vary with the relative earned incomes of the plaintiffs and defendants, or (3) the size of the civil fines the government imposes on a wrongdoer vary with his earned income. Any decision of the latter sorts would disserve the goal of maximizing economic efficiency if it is viewed in isolation. More specifically, the “Double-Distortion Argument” argument maintains that this conclusion is justified because, administrative-transaction-cost considerations and other Pareto imperfections aside, taxes on earned income cause economic inefficiency solely by distorting the incentive to perform market labor, as opposed to performing untaxed do-it-yourself labor or consuming untaxed leisure, while the pricing policies and legal rules listed above distort two kinds of choices on these assumptions—namely, they distort both the choice to consume the relevant product or engage in the relevant injurious conduct and (derivatively) the choice to perform market labor. Proponents of the Double-Distortion Argument argument correctly point out that those who advocate redistributing income between earned-income classes by making the prices, damage awards, and civil fines an individual must pay an explicit function of his earned income when such policy choices would cause economic inefficiency by distorting purchasing and injurious64. Louis Kaplow and Steven Shavell wrote the first Article to be published in a lawand-economics journal on the prescriptive-moral implications of the Double-Distortion Argument. See Kaplow & Shavell, Legal System, supra note 4, at 669. However, essentially the same argument was made earlier in two Articles (one of which Shavell wrote on his own) in economics journals. See Aanund Hylland & Richard Zeckhauser, Distributional Objectives Should Affect Taxes But Not Program Choice or Design, 79 SCANDINAVIAN J. OF ECON. 264 (1979); Steven Shavell, A Note on Efficiency vs. Distributional Equity in Legal Rulemaking: Should Distributional Equity Matter Given Optimal Income Taxation?, 71 AM. ECON. REV. 414 (1981). For some later usages of this argument, see Louis Kaplow, The Optimal Supply of Public Goods and the Distortionary Cost of Taxation, 49 NAT’L TAX J. 513, 517 (1996); Louis Kaplow & Steven Shavell, Property Rules versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713, 744 n.99, 745 n.102 (1996). For Kaplow and Shavell’s most recent defense of their position, see Kaplow & Shavell, Should Legal Rules Favor the Poor?, supra note 4.

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conduct decisions have ignored the fact that such policies will have the same distorting effect on the relevant individual’s marketlabor/do-it-yourself labor/leisure incentives and choices as would an earned-income tax that generated the same redistribution. The Double-Distortion Argument actually does justify the following, relatively unimportant proposition: if transaction-cost considerations do not undermine this conclusion and taxes on earned income are not only the more economically efficient way to redistribute income between earned-income classes but the more desirable way to do so from the relevant personal-ultimate-value perspective, one always ought to redistribute income between earned-income classes exclusively by varying tax rates on earned income appropriately when this option is politically available. However, many economists and law-and-economics scholars seem to believe that the Double-Distortion Argument implies the correctness of two more ambitious prescriptive moral conclusions. First, that legislators and others—such as administrative rulemakers— who exercise legislative power ought never try to redistribute income by adopting economically inefficient policies other than taxes on earned income. Second, that judges and others making adjudicative decisions ought never sacrifice economic efficiency to instantiate distributional norms or achieve distributional goals other than by enforcing statutes that impose taxes on earned income.65 At least six objections can be made to these two propositions and/or to the claim that the Double-Distortion Argument warrants them.66 First, these propositions ignore the fact that even if one can instantiate a given distributional value to the relevant desired extent least economically inefficiently by varying earned-income tax rates exclusively, that conclusion does not guarantee that such an earnedincome tax policy will be more desirable from the relevant valueperspective than all its alternatives. The greater economic efficiency of a policy does not guarantee its greater moral desirability. Second, even if one could instantiate a given distributional value to the relevant desired extent not only least economically inefficiently but also most desirably by varying earned-income tax rates exclusively, that fact would not warrant the conclusion that other methods of effectuating the relevant distributional value to the de-

65. These propositions are implied by Kaplow and Shavell’s claim that “normative economic analysis of legal rules should focus [exclusively] on [economic] efficiency.” Kaplow & Shavell, Should Legal Rules Favor the Poor?, supra note 4, at 821. 66. I will treat these objections only briefly here. For a more detailed discussion, see Richard S. Markovits, Sacrificing Economic Efficiency to Effectuate Distributional Values: A Critique of Kaplow and Shavell’s Conclusions About the Prescriptive-Moral Import of the Double-Distortion Argument (2000) (unpublished manuscript, on file with author).

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sired extent ought to be rejected if the earned-income tax-rate policy is politically unavailable. Third, even if an appropriate earned-income tax policy would be able to effectuate a given distributional value to the desired extent least economically inefficiently and most desirably if transaction-cost considerations were ignored, the transaction-cost considerations might make it more economically efficient and/or more desirable to use some other policy that does generate a double distortion to instantiate the value in question. For example, if it were more transaction-costly to determine earned income directly with various degrees of accuracy than to determine one or more other things that are highly correlated with earned income with some relevant degree of accuracy, it might be more economically efficient and more desirable overall to effectuate the valued redistribution by taxing something other than earned income or promulgating or enforcing some economically inefficient legal rule than by taxing earned income. Fourth, since an individual’s richness or poorness depends not only on his earned income but also on his unearned income and wealth,67 taxes on earned income will not be able to effectuate perfectly distributional values that essentially favor redistributions between income/wealth classes. In the unlikely event that there is no correlation between an individual’s earned income and his income/wealth position, taxes on earned income may have no useful role to play in effectuating this kind of value. Even if (as I believe) such a correlation exists, it may be desirable to redistribute income from the richer to the poorer or between income/wealth classes, inter alia, by levying taxes on investment income and wealth, despite the fact that such taxes will generate double distortions by distorting savings/consumption/current and future gift-giving/“bequesting” choices as well as market-labor/do-it-yourself labor/leisure choices. Admittedly, however, this criticism could be viewed as a friendly amendment to the Double-Distortion Argument argument for relying exclusively on taxes to redistribute income from the rich to the poor or vice versa, an amendment that simply requires the relevant argument to be relabeled a Extra Distortion Argument argument. This admission reflects the fact that any attempt to redistribute resources from the rich to the poor or vice versa by making prices, liability rules, damages, or fines depend on the relevant party’s or parties’ income/wealth positions when it is not economically efficient to do so will misallocate resources not only by distorting their (1) marketlabor/do-it-yourself labor/leisure choices and (2) savings/consumption/current and future gift-giving/“bequesting” choices 67. As well as on his disabilities, his health, the quantity of his leisure, the intrinsic attractiveness of his labor, and various other attributes of his person and situation.

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but also by distorting their (3) product-purchasing, tort-avoidance, contract-violation, etc., choices. Fifth, even if the Double-Distortion Argument (or its ExtraDistortion Argument analogue) did demonstrate that redistributions between income/wealth classes can be effectuated not only least economically inefficiently but also most desirably through the exclusive use of taxes on earned income, unearned income, and wealth and even if such a tax policy were politically available, those facts would not imply that one ought not use other policies that would yield double or extra distortions or misallocate resources for other reasons to effectuate other kinds of distributional norms that do not essentially favor redistributions between income/wealth classes. This latter category of norms includes norms that relate to the positive rights that moral-rights holders possess, corrective-justice norms, and various other kinds of distributional norms such as libertarian distributional norms that, roughly speaking, value people’s receiving incomes that match their moral deserts and are essentially indifferent to the shape of the income/wealth distribution that results. And sixth, at least in rights-based societies in which adjudicators are morally obligated to resolve the legal-rights claims before them in a way that is not internally wrong,68 adjudicators will be morally obligated to, and virtually always ought to,69 enforce statutorily created or constitutionally created legal rights that legislators or constitutional ratifiers created to redistribute income to their beneficiaries. I should add that all adjudicators will have such moral obligations even when the relevant provision cannot be justified in any principled way so long as it does not violate anyone’s rights directly (for example, by manifesting a prejudice). Hence, the Double Distortion Argument does not justify the conclusion that public decision makers ought never try to redistribute income by means other than varying the tax rates to be applied to earned income. In many situations, from various value-perspectives, public decision makers ought to redistribute income in ways that generate double (or extra) distortions or cause greater misallocation for other reasons per dollar transferred than taxes on earned income (earned income, unearned income, and wealth) would cause for the average dollar they transferred.

68. If my belief that there are internally right answers to all legal-rights questions in a rights-based culture is correct, the text should read “in the internally correct way.” 69. Obviously, this judgment reflects my own personal ultimate values. It also reflects my assumption that the relevant society is a society of moral integrity and that the internally correct answer to the legal-rights question before the court is not critically affected by a provision in the society’s constitution that is inconsistent with its moral commitments and whose implications were reasonably well understood by its ratifiers.

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3. Contributions of Economic-Efficiency Analysis Part III has argued that economic-efficiency analysis is not an algorithm for moral-rights analysis or moral-ought analysis. However, I do not want to leave the impression that economic-efficiency analysis or economics in general cannot make a significant contribution to prescriptive moral analysis. I will therefore conclude by briefly listing and illustrating three kinds of contributions that economics can make to these types of inquiries. First, as I have already suggested, in many situations economicefficiency analysis can play a useful role in pure utilitarian evaluations or in evaluations that are partially based on utilitarian values. This claim reflects my belief that it will often be more desirable from many legitimate value-perspectives to generate utilitarian conclusions circuitously—by predicting the equivalent-dollar gains and losses different choices will generate and the average utility the relevant winners will obtain and losers will lose per equivalent dollar they respectively win or lose—than directly by focusing straightforwardly on the effect of the choices under consideration on total utility. Second, as I have also already suggested, economics can sometimes reveal ambiguities in the formulation of particular values, facts that call those values into question, and weaknesses in arguments that employ particular values. Thus, economics can demonstrate that those who believe that “people ought to receive resources equal in value or proportionate to what they produce” need to indicate whether the referent of “what they produce” is an individual’s marginal revenue product, marginal allocative product, the average revenue product of all equally skilled and assiduous workers to perform that individual’s type of labor, or the average allocative product of all members of this class of workers, because these concepts not only differ definitionally but also tend to have very different empirical values in the real world. Economics can also show that the claim that individuals ought to receive or are entitled to receive resources equal in value to what they produced in any of these senses is called into question by the fact that an individual’s product in any of these senses is a function not only of genetic and nurturing factors over which he had no control but also of various “non-personal” factors over which he had no control: the tastes of members of his community; the number of others who are able to perform the type of labor he would find most attractive to perform, all things considered; the opportunity cost to those others of performing this type of labor; the “availability” of complements to the labor inputs he can supply or to the goods and services he can produce; and, perhaps most damningly, the distribution of income in his community

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Relatedly, economics can reveal the implicit assumptions in normative distributional arguments. For example, economics reveals that the argument that the value “people ought to be paid according to what they produce” implies that the government ought not redistribute income implicitly assumes either (A) (1) that this value asserts that people ought to be paid their marginal allocative products and (2) that the Pareto imperfections our economy contains do not cause people to be paid more or less than their marginal allocative products or (B) (1) that this value asserts that people ought to be paid in proportion to their average allocative products, marginal resource products, or average resource products and (2) that for some fortuitous reasons their earned income would follow this pattern if government made no effort to redistribute income. Similarly, economics reveals that liberals who accept the dualist position that the moral obligations of individuals when acting in their private capacities are different from their moral obligations when acting in their political capacities may conclude that potential accident or pollution-loss injurers and victims are obligated to make those avoidance choices and only those avoidance choices they would make if they counted others’ net equivalent-dollar losses as their own—those choices that the type of analysis that would be thirdbest-allocatively-efficient for them to execute would conclude would be economically efficient for them to make. (The analysis that would be third-best-allocatively-efficient for them to execute would depend among other things on the multiplicity of Pareto imperfections in the system, the cost to them of collecting data on those imperfections of varying degrees of accuracy, and the cost to them of executing relevant theoretical analyses of different quality.) Third and finally, in a world in which the evaluator does not have the option of eliminating all the distributional imperfections in his society, Second-Best Theory70: 70. The General Theory of Second Best demonstrates the following proposition: Given a series of conditions whose fulfillment guarantees the achievement of an optimum, if one or more of those conditions cannot be fulfilled, there is no general reason to believe that reducing the number of remaining optimal conditions that are not fulfilled or the extent to which they are not fulfilled will even tend to bring one closer to the optimum. The intuitive explanation for this conclusion is that, in general, the imperfections one can eliminate will be as likely to counteract as to compound the net effect of the imperfections that one cannot or will not eliminate. Second-Best Theory does not counsel despair. In addition to explaining why one cannot assume, without further argument, that policies that reduce the number or extent of imperfections in a system will improve outcomes if some imperfections remain, it provides insight into the structure that arguments must have to justify the conclusion that in a particular case a policy that decreases (or, for that matter, increases) a particular relevant imperfection will tend to improve outcomes. Economists usually employ The General Theory of Second Best to determine whether a policy that will reduce the extent of so-called Pareto imperfections will tend to increase economic efficiency. But its basic point and implications apply mutatis mutandis when the goal is to increase the effectuation of some distributional norm rather than to increase economic efficiency and the

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(1) Can teach him that, unless he can devise an appropriate argument to the contrary, choices that reduce or eliminate one or more distributional imperfections without eliminating them all will be as likely to worsen the distribution of income from his value perspective as to improve it; and (2) Can reveal the structure of the analysis he will have to execute to determine whether in any given case choices that reduce or eliminate a particular distributional imperfection or, indeed, that increase or introduce a particular distributional imperfection, will improve the distribution of income from his perspective.

IV. ECONOMIC-EFFICIENCY ANALYSIS AS AN ALGORITHM FOR GENERATING INTERNALLY CORRECT LEGAL-RIGHTS CONCLUSIONS IN A LIBERAL, RIGHTS-BASED CULTURE Part II’s analysis of legal rights indicated that some legal rights are moral-rights-related, some are created by State acts designed to instantiate a particular ultimate value, an ultimate-value combination, or set of morally defensible concrete goals, and some are generated by State choices that were designed to provide economic rents for their beneficiaries or were made for other more or less dubious reasons. Part II also indicated that the assessment of moral-rightsrelated legal rights claims is controlled by the moral principles to which our society is committed and that the assessment of legal rights claims that are based on State law-creating acts designed to effectuate one or more personal ultimate values or defensible concrete goals is controlled by the substance of the ultimate value(s) or concrete goals in question if the relevant law-creating texts properly reflect their ratifiers’ intent but may also depend on canons of statutory interpretation when the relevant texts are imperfectly drafted. Finally, Part II indicated that the interpretation of State lawcreating acts that reflected rent-seeking or other dubious types of State law-creating choices will also involve textual and other kinds of legal arguments that are neither moral-principle-oriented nor personal-ultimate-value-oriented. Most important for present purposes, Part II also revealed that the preceding general conclusions are not

imperfections in the system are distributional imperfections rather than Pareto imperfections. For the initial formal statement of The General Theory of Second Best, see Richard G. Lipsey & Kelvin Lancaster, The General Theory of Second Best, 24 REV. ECON. STUD. 11 (1956). For a general analysis of the implications of Second-Best Theory for law-andeconomics, see Richard S. Markovits, Second-Best Theory and Law & Economics: An Introduction, 73 CHI.-KENT L. REV. 3 (1998). For a critique of the various justifications that economists and law-and-economics scholars typically offer for ignoring Second-Best Theory, see Richard S. Markovits, Second-Best Theory and the Obligations of Academics: A Reply to Professor Donohue, 73 CHI.-KENT L. REV. 267 (1998).

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particularly sensitive to one’s conclusions about legitimate legal argument in our culture. A. When the Internally Right Answer to the Legal-Rights Question Is Moral-Principle-Based Because the Relevant Legal Right Derives from a Moral Right I believe that most common law, many constitutional law, and some statutory rights are moral-rights-based and that decisions about legal rights claims that are based on moral rights turn on moral-rights analysis. Although others think that I exaggerate the frequency with which arguments of moral principle control legitimate legal rights argument directly71 and/or that I have misidentified the moral principle our society is committed to instantiating in its moralrights discourse,72 supporters of a wide variety of jurisprudential positions support the view that, in at least some cases, arguments of moral principle directly determine the internally right answer to the legal-rights question at issue.73 More specifically, Philip Bobbitt, some Legal Realists such as Karl Llewellyn, Ronald Dworkin, John Hart Ely, and many legal historians of ideology would support this conclusion. Of course, the issue with which we are currently concerned is not whether these experts believe that the internally right answers to some moral-rights-related legal-rights questions are controlled by moral principle but whether the instantiation of the various moral principles they think are controlling is consistent with economic efficiency. To analyze this issue, I will first comment on the substance of the various moral principles that the legal experts in question believe control the internally right answer to some legal-rights questions and then examine the compatibility of these particular moral principles with economic efficiency. Of the legal experts who accept that moral principle controls the internally right answer to at least some moral-rights-related legal71. I believe that scholars who claim that I exaggerate the extent to which arguments of moral principle control legitimate legal-rights argument do so at least in part because they fail to note that my claim relates to normative domination, not actual domination (note the word “legitimate” in its articulation). I admit that, given the “conventionalist” character of my approach to moral and legitimate legal argument, a demonstration that arguments of moral principle do not actually dominate legal argument in the sense in which I claim it normatively dominates legal argument counts against my normative domination claim, though the force of such evidence is weakened by the fact that the conventionalist approach I believe is warranted is “qualified” in the APPENDIX. For a debate in which the distinction between normative and actual domination plays a central role, see Balkin & Levinson, supra note 22; Richard S. Markovits, “You Cannot Be Serious!”: A Reply to Professors Balkin and Levinson, 74 CHI.-KENT L. REV. 559 (1999). 72. I assume that scholars who believe that our society is committed to libertarian, civic-republican, or communitarian norms would make this objection. 73. Markovits, Internally-Right Answers, supra note 9, at 435-60.

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rights questions, many believe that, at least in our society, the moral principle in question is liberal. This conclusion is obviously justified in relation to Ronald Dworkin, but I think it also applies to John Hart Ely, Philip Bobbitt, and Karl Llewellyn. In Ely’s case, it is implied by the fact that Ely’s argument for the fundamental character of the three sets of rights he claims the Constitution’s text indicates are constitutionally fundamental assumes that our society is a liberal society. In Bobbitt’s case, it is implied by the close connection between his conclusion about the central attribute of our ethos of government—namely, our commitment to limited government—and the liberal commitment to valuing each individual’s developing his own conception of the good. In Llewellyn’s case, it is at least suggested by the connection between the value of fair notice, which underlies Llewellyn’s conclusion that vague and open-textured language in the Uniform Commercial Code should be interpreted in the way that is most consistent with relevant business practice, and the liberal value of appropriate, equal respect. Of course other legal experts who believe that the internally right answers to at least some moral-rightsrelated legal-rights questions are controlled by moral principle think that the applicable moral principle is not liberal. Thus, some legal historians of ideology think that our society is committed to civicrepublican or communitarian values, and others at least flirt with the idea that our society is committed to and our law incorporates libertarian values. Part III’s demonstration that the basic liberal moral principle will often not favor economically efficient decisions implies that the conclusion that the internally right answer to all moral-rights related legal-rights questions will always be economically efficient would be rejected not only be me but also by a variety of other legal experts who disagree with me on some issues but do agree that the internally right answers to at least some moral-rights-related legal-rights questions are controlled by liberal moral principles. Scholars who contend that our society and Constitution have adopted communitarian values will also not believe that the internally right answer to all the moral-rights-related legal-rights questions that theses values control will be economically efficient. Take, for example, prohibitions of acts (reading particular books, seeing particular movies, dressing in particular ways, comporting oneself in a particular manner, engaging in certain kinds of sex, etc.) on which a deviant minority place a high equivalent-dollar value but a majority disvalues in part because they consider such conduct sinful and/or disruptive of the way of life they wish to foster. Assume that the individual deviant members of the community who want to engage in such conduct place a positive equivalent-dollar value on their doing so that is much higher than the negative equivalent-dollar values

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that individual members of the majority place on the deviants’ engaging in the conduct in question. Since communitarians would not believe that the magnitude of the relevant parties’ absolute equivalent-dollar evaluations should determine the number of votes they have on such issues—they would place the highest value on the majority’s being able to preserve the way of life the majority values (indeed, would conclude that individual members of the majority have a moral right to preserve the way of life these individuals value)—communitarian values would sometimes favor prohibitions that are economically inefficient. I suspect that libertarian principles will also favor economically inefficient moral-rights decisions and hence economically inefficient moral-rights-related legal-rights decisions. When non-distributional moral rights are at stake, this conclusion follows from the fact that libertarian and liberal conclusions are often similar or identical. When distributional moral rights are at stake, the analysis is complicated by the ambiguity of the relevant libertarian norm. If, as my experience suggests, libertarians believe that all individuals are entitled to be paid wages that are proportionate to the average allocative products of the class of equally able and equally industrious workers who perform their respective types of labor, the instantiation of this norm will be incompatible with the achievement of economic efficiency. If libertarians believe that each individual is entitled to be paid the marginal allocative product of the last equally able and equally assiduous worker to perform his type of labor, the instantiation of this norm will also be incompatible with the maximization of economic efficiency in our actual, highly Pareto-imperfect world for two reasons: (1) because of the allocative cost of generating the valued distribution and (2) because of the externalities that this distribution will generate both directly by pleasing and displeasing individuals who subscribe respectively to libertarian and non-libertarian values and indirectly by affecting the consumption and labor decisions of various individuals—externalities that the relevant libertarian distributional norm deems irrelevant and that often libertarian norms may not internalize or may internalize only at some allocative transaction cost. And if libertarians believe that individuals are entitled to keep whatever they receive through gift or bequest, the effectuation of this norm will be economically inefficient insofar as it gives individuals incentives to behave in economically inefficient ways to elicit such gifts and bequests. In short, (1) many legal experts who disagree with me on important issues related to legitimate and valid legal argument agree that moral principles control the internally right answers to some moralrights-related legal-rights questions and (2) although some of these legal experts think that the moral principle that controls the inter-

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nally right answer to some legal-rights questions is not liberal (is communitarian or libertarian), none of the principles the different experts think control the internally right answer to at least some moral-rights-related legal-rights questions always favors the economically efficient answer to such questions. B. When the Internally Right Answer to the Legal-Rights Question Is Personal-Ultimate-Value-Based or Goal-Based Because the Relevant Legal Right Was Created by a Properly Drafted Provision that Was Designed to Instantiate a Personal Ultimate Value or Achieve a Legitimate Concrete Goal Part II indicated that legal experts who subscribe to a wide variety of jurisprudential positions agree that the internally right answer to many legal-rights questions is the answer that instantiates the specific legislators’ motivating personal ultimate value or the State’s consistently adopted personal ultimate value or secures a concrete goal a legislature or administrative rulemaker sought to achieve. Part III’s rejection of the claim that economic-efficiency analysis can serve as an algorithm for the generation of moral-ought conclusions in our culture—in part because the effectuation of many personal ultimate values will sometimes decrease economic efficiency—clearly implies that economic-efficiency analysis can also not serve as a universal algorithm for the generation of right answers to legal-rights questions that have correct answers that instantiate particular personal ultimate values or secure particular concrete goals. Admittedly, the proximate goal of some statutes may be to increase economic efficiency. When efficiency is the goal, it is appropriate to interpret ambiguous statutory language in a way that maximizes economic efficiency. However, because I think that economists vastly exaggerate the number of statutes that were intended by their ratifiers to increase economic efficiency,74 I suspect that economic-efficiency analysis can rarely serve as an algorithm for the generation of internal-to-law, correct interpretations of statutory language in our culture.

74. For example, contrary to the view of most economists and lawyer-economists, I do not think that the American antitrust laws were designed to maximize economic efficiency or should be interpreted in the way that would maximize economic efficiency. Richard S. Markovits, Monopolistic Competition, Second Best, and THE ANTITRUST PARADOX: A Review Article, 77 MICH. L. REV. 567, 577-94 (1979). I hasten to add that many economists acknowledge (indeed, stress) that much or most legislation reflects its supporters’ rentseeking rather than their pursuit of economic efficiency.

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C. When the Right Answer to the Legal-Rights Question Turns on Textual, Historical, Structural, or Other Considerations That Are Not Captured by Any Moral Principle or Personal Ultimate Value Part II also revealed that a wide variety of jurisprudential positions imply that the internally right answer to some legal-rights questions turn on neither moral principles nor personal ultimate values. These positions imply that the internally correct interpretation of many legal texts involves no reference to moral norms at all. Because economists recognize (indeed, stress) that the substance of many statutes is hard to justify in prescriptive moral terms and that many law creators do not aim to increase economic efficiency, they should not be surprised that economic-efficiency analysis cannot serve as an algorithm for the interpretation of these types of lawcreating acts. **** Part IV has argued that economic-efficiency analysis is not an algorithm for the analysis of any of the three general types of legal rights I distinguished. Its discussion of this issue complements Part III’s critique of Kaplow and Shavell’s argument that courts ought always adopt economically efficient legal rules. However, it is important to emphasize that this conclusion does not imply that economicefficiency analysis is never relevant to legal-rights analysis. To the contrary, economic-efficiency analysis will clearly be relevant to the interpretation of vague or open-textured language in statutes that were designed to achieve the proximate, concrete goal of maximizing economic efficiency or that were at least partially motivated by utilitarian concerns. Moreover, if I am correct in concluding (1) that the United States is a liberal, rights-based society, (2) that such societies are obligated to protect the moral rights of those for whom it is responsible, (3) that the liberal dualists are correct in differentiating the private and political obligations of members of liberal, rightsbased States, and (4) when acting in their private capacities, members of a liberal, rights-based State are obligated to make all avoidance moves they would find profitable if they did an economically efficient amount of research into the consequences of their avoidance decisions and counted the equivalent-dollar effects of their choices on others as if they experienced those effects themselves, then an appropriate version of third-best-allocative-efficiency analysis—one that takes into account not only the existence of imperfections other than the imperfection to which the law is directly responding but also the allocative cost the relevant actors would have to generate to collect data and execute analysis of varying degrees of accuracy—will determine the tort-law obligations of such actors. Similarly, in the United States, economic-efficiency analyses may also have a critical

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role to play in the resolution of a number of Commerce Clause and Federalism issues. I could go on, but the point should by now be clear: Even though economic-efficiency analysis is not nearly so relevant to legal-rights analysis as many economists and law-andeconomics scholars claim, it can make significant contributions to legal-rights analysis in many contexts. CONCLUSION Most economists and law-and-economics scholars write and talk as if all economically efficient choices are consistent with our moralrights commitments and would also be desirable if they were not proscribed or required by our moral-rights commitments. The literature contains hundreds of articles that implicitly assume this proposition and a few that explicitly try to justify it. Relatedly, many economists and law-and-economics scholars explicitly argue or implicitly assume that economic-efficiency analysis is an algorithm for the discovery of moral-rights-related common law and Constitutional rights and for the interpretation of statutes that were designed to achieve utilitarian goals. This Article has analyzed the relevance of economic-efficiency conclusions to moral-ought, moral-rights, and various types of legalrights analysis. It has demonstrated that, although economicefficiency analysis can sometimes contribute to moral-ought, moralrights, and legal-rights analyses, it is not generally an algorithm for the generation of any of these types of conclusions. In the course of establishing these conclusions, the Article has refuted various arguments that highly regarded economists or law-and-economics scholars have made to support their belief that economically efficient polices are always just and desirable. Unfortunately, the tendency of economists to exaggerate the relevance of economic-efficiency analysis and conclusions is not just of academic interest. At least in the United States, the economics profession’s exaggerated claims for the relevance of economic efficiency has caused public decisionmakers of all types to abdicate their moral responsibility both to base their decisions on rights-related issues on the moral principles we are committed to using in such contexts and to base their decisions on issues whose resolution is not determined by our rights-commitments on one or more appropriate personal ultimate values. The exaggerated claims that economists make for economic-efficiency conclusions not only cause public decisionmakers to violate moral and legal rights and to make choices that are undesirable from various value-perspectives—moral-rights considerations aside—but also create a risk that a public backlash may develop that will prevent economics from playing the useful role it can perform in

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policy and legal-rights analysis. This Article is motivated not only by my desire to “get it right” but also my desire to prevent these damaging outcomes. APPENDIX This APPENDIX presents highly schematic accounts of six approaches to prescriptive moral analysis. Four of these approaches are “foundationalist” in the broader sense of that term—that is, they are designed to discover universally binding norms of justice. The remaining two approaches are much less ambitious. Proponents of these two non-foundationalist, “conventionalist” approaches reject the claim that there are universally binding norms of justice and concentrate on describing the moral practices of particular societies. The four methodologies that are “foundationalist” in the broad sense of that term certainly overlap and may be coincident. The term “foundationalist” is used not only in the broad sense defined above but also in a narrow sense to denominate a particular approach to discovering universally binding norms of justice. Analyses that are “foundationalist” in this narrower sense proceed on the assumption that humans can recognize the basic universal norms of justice in something like the way we have access to truths about the physical world. Perhaps for this reason, philosophers who are foundationalist in this narrower sense tend to think that the best way to persuade others that a particular moral norm is the universally binding norm of justice is to give an account of societies that consistently implement the norm in question and compare such societies with societies of moral integrity that consistently implement other moral norms. A second approach to moral-rights or justice analysis, which may be a variant of the first, might be called Aristotelian. The Aristotelian approach begins by developing an account of “human flourishing” and proceeds on the assumption that the moral norm whose effectuation would contribute most to human flourishing is the universally binding norm of justice. A third approach to justice or moral-rights analysis is the “constructivist” approach associated with Kant. Although the following sketch of constructivist approaches may be even less adequate than the preceding descriptions of foundationalist and Aristotelian methodologies, I would say that constructivist approaches to justice use reason to explore the implications of a particular understanding of the goal of conversations about justice and moral rights—namely, to identify moral norms whose authority over us does not infringe our freedom. A fourth approach to justice analysis that is foundationalist in the broader sense is the Natural Law approach. To be honest, I find it

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difficult to provide even a sketch of the Natural Law methodology. My difficulties reflect both (1) the fact that many of the Natural Law philosophers I have read do not devote much attention to methodological issues and (2) my suspicion that different Natural Law philosophers use quite different approaches—for example, that the methodology that underlies Hobbes’ reference to a Natural Law of self-defense differs significantly from the methodology that more modern Natural Law philosophers employ. Perhaps not. Perhaps the Natural Law approach proceeds on the assumption that acts or decisions are just if they are consistent with the universal nature of human beings. If so, the Natural Law methodology may be closer to the Aristotelian approach than one might otherwise think. The last two methodologies I will describe are conventionalist, not foundationalist in the broader sense. Conventionalist methodologies do not attempt to articulate universally binding moral norms of any kind. On the assumption that one cannot go at all beyond the “is” of moral practice or enough beyond the “is” of the moral practice of particular communities to generate universally binding moral norms, conventionalists attempt to provide detailed accounts of the conduct of particular communities that its members consider to have a “moral dimension” in some sense that conventionalists leave more or less undefined. I will distinguish two variants of the conventionalist approach, which actually occupy extreme positions on the conventionalist continuum. I denominate the first conventionalist methodology “pure conventionalism.” The pure conventionalist employs no concept of “a community of moral integrity,” of “moral norm,” or of “acting from a moral position.” This admittedly fictional figure simply reports the conduct of the communities he studies that its members consider to have a moral dimension in some undefined sense—that is, simply reports the self-described “moral” conventions of particular communities. The pure conventionalist does not comment, for example, on the possible moral significance of the fact that a society that is committed to liberalism in its moral-rights discourse makes legal decisions that do not instantiate liberal principles (that is, does not comment on the implications of this inconsistency for the moral integrity of the community in question). He also does not remark on the possible moral significance of the fact that the society he is studying has a caste system that it does not try to justify or justicize (render just) in any way. Indeed, if the society consistently applies caste-based decision-rules and decision-standards, the pure conventionalist will say no more than that this practice is part of the morality of the community in question. Conventionalists who are “pure” in the sense in which I am using this terminology will also not ask whether a narrow-gauged practice that is inconsistent with the “best” account that

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can be given of a particular society’s general or broad-gauged moral practice is immoral by the society’s own standards: if the narrowgauged practice is consistently followed, the pure conventionalist will describe it to be part of the community’s moral practice. This last point may be clarified through an illustration. Assume that the “best” account that can be given of a particular society’s broad-gauged moral practice implies that it is a liberal, rights-based society.75 Assume in addition that this conclusion partly reflects the fact that members of the relevant society: (1) Give substantial positive weight to the interests individuals have in forming and participating in intimate relationships that contribute to their discovering their personal ultimate values as well as to their actualizing these values; and (2) Give a positive weight as well to the desire of individuals to experience and give pleasure.

Now assume that this same society penalizes adults who participate in voluntary homosexual sexual activity on the ground that it disgusts the majority of its members even when such activity contributes to the formation and maintenance of broader intimate relationships. Assume as well that this society imposes no penalties on adults who participate in voluntary heterosexual sexual activity. The pure conventionalist would categorize this society’s consistent treatment of homosexuals who engage in such sexual conduct as part of its morality. The pure conventionalist would not ask whether “disgust” can justify or justicize penalizing adult participants in voluntary homosexual sexual conduct. The pure conventionalist also would not ask whether this treatment of the relevant homosexuals might not be immoral by the community’s own standards because it was inconsistent with the best account of the community’s broad-gauged moral practice. The pure conventionalist would simply accept the community’s own assessment of the morality of its narrow-gauged conduct. The second kind of conventionalist approach and sixth type of methodology I want to describe overall might be termed a “qualified conventionalist” approach. This type of conventionalist approach is “qualified” because it proceeds on the assumption that the notions “moral norm,” “acting from a moral position,” and “being an individual or society of ‘moral integrity’” have some essentialist attributes—

75. I assume that such accounts are evaluated according to a “fit” criterion (how well do they fit the community’s relevant behaviors and perceptions) and an “explicability-of(non-fit)” criterion (to what extent can the relevant non-fits be explained in ways that reduce the damage they do to the relevant account’s persuasiveness). For a fuller description of this protocol, see MARKOVITS, MATTERS OF PRINCIPLE, supra note 9, at 13-34.

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for example, that an individual or a State cannot be said to have moral integrity unless they behave morally consistently to some hard-to-specify extent. A qualified conventionalist would therefore conclude that a consistent narrow-gauged practice was immoral for essentialist reasons if its alleged justification (disgust) were unacceptable and was immoral by the community’s own standards if it were inconsistent with the best account of the community’s commitments—perhaps with the way in which the society in question generally responded to conduct that implicated the same interests that the narrow-gauged practice affects to the same extent that the narrow-gauged practice did. As I indicated earlier, most conventionalists fall somewhere between the pure conventionalist and qualified conventionalist poles of the conventionalist distribution. In practice, I doubt if any conventionalist is willing to accept a community’s “own perception of the moral dimensions of conduct” (whatever that might mean)—that is, all conventionalists assume that the concept “moral” has some essentialist elements. However, many conventionalists seem willing to accept as “moral” (1) a community’s use of a caste system that it considers to be moral despite the fact that it offers no justification for the system in question and (2) a community’s unreasoned refusal to instantiate the same set of norms in different spheres of activities, and some conventionalists seem also willing to characterize as moral a community’s consistent narrow-gauged practice that is inconsistent with its broad-gauged practice in what would appear to be the same sphere of activities. My approach to analyzing the moral character and more specificmoral commitments of any particular society such as the United States is qualified conventionalist. However, it is important to emphasize that my critique of the claims that economists make for the relevance of economic-efficiency conclusions to prescriptive moral analysis does not depend on the “correctness” of this methodology. That critique depends solely on the coherence of moral norms that do not focus exclusively on the maximization or distribution of utility and, more particularly, on the conclusion that the various moral norms of this sort that can be distinguished (the liberal norm I think the United States is committed to instantiating when making decisions that implicate moral rights, various types of libertarian norms, and the various non-liberal and non-utilitarian egalitarian norms on which members of our society base their conclusions about what morally-ought to be done) do not always favor the economically efficient choice. Since (1) philosophers who are foundationalist in the broader sense of that term believe that such norms are coherent and (2) proponents of all the methodologies this APPENDIX has sketched may accept my account of the various norms in question, my refuta-

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tion of the claims that economists make for the prescriptive moral relevance of economic-efficiency conclusions does not depend on the correctness of the prescriptive moral methodology I employ.

THE WHITE PRIMARY RULINGS: A CASE STUDY IN THE CONSEQUENCES OF SUPREME COURT DECISIONMAKING MICHAEL J. KLARMAN* I. INTRODUCTION ..................................................................................................... II. THE PRE-SMITH WHITE PRIMARY CASES ............................................................ III. THE LEGAL AND POLITICAL CONTEXT OF SMITH V. ALLWRIGHT AND THE SUBSEQUENT HISTORY OF THE WHITE PRIMARY ................................................ IV. THE CONSEQUENCES OF SMITH V. ALLWRIGHT .................................................. V. CONCLUSION ........................................................................................................

55 57 61 69 102

I. INTRODUCTION Political scientists and legal scholars have written a good deal in recent years on the consequences of Supreme Court decisions.1 Much of this scholarship has been skeptical of the Court’s capacity to produce significant social change. Most notably, Professor Gerald N. Rosenberg has declared the notion that courts can reform society a “hollow hope.”2 Rosenberg shows that Brown v. Board of Education3 produced very little school desegregation until Congress passed landmark civil rights legislation to implement the Court’s ruling.4 He also makes a strong case that Brown played a less instrumental role in the 1960s civil rights movement than is commonly believed.5 Simi*James Monroe Professor of Law, Albert C. Tate, Jr., Research Professor, and Professor of History, University of Virginia. B.A., M.A., University of Pennsylvania; J.D., Stanford Law School; D. Phil., Oxford University. I am grateful to Daryl Levinson, Rick Pildes, and Mark Tushnet for their helpful comments on an earlier draft. Stephanie Russek provided extraordinary research assistance, and, as always, I am indebted to the reference librarians at the University of Virginia School of Law for the superb research help they regularly provide. A revised version of this Article will appear in a chapter of my forthcoming book, provisionally entitled NEITHER HERO, NOR VILLAIN: THE SUPREME COURT, RACE AND THE CONSTITUTION IN THE TWENTIETH CENTURY (Oxford Univ. Press). As the Mason Ladd lecturer at The Florida State University College of Law in February, 2001, I was privileged to present material from a different chapter of that book. I am grateful to both the students and the faculty at Florida State for the warm and enthusiastic reception they accorded me on that occasion. I owe special thanks to Mark Seidenfeld for making that occasion possible. 1. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE (David A. Schultz ed., 1998); STEPHEN L. WASBY, THE IMPACT OF THE UNITED STATES SUPREME COURT: SOME PERSPECTIVES (1970). 2. ROSENBERG, supra note 1. 3. 347 U.S. 483 (1954). 4. ROSENBERG, supra note 1, at 49-54. 5. Id. at 107-56. See also Gerald N. Rosenberg, Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case, 80 VA. L. REV. 161 (1994) (giving Brown almost no credit for inspiring the civil rights movement). But cf. David J. Garrow, Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education, 80 VA. L. REV. 151 (1994) (giving Brown tremendous credit); Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. REV. 7 (1994) (arguing that Brown indirectly acceler-

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larly, my own research has found that the Supreme Court’s first major criminal procedure decisions, which disproportionately involved Southern blacks who had suffered egregious mistreatment from the Jim Crow criminal justice system, had almost no impact on reforming that system.6 Southern blacks continued to be almost universally excluded from juries, beaten into confessing crimes they may or may not have committed, and convicted of capital offenses after sham trials in which generally apathetic court-appointed lawyers simply went through the motions of providing a defense. It would be a mistake, however, to conclude on the basis of such studies that Supreme Court decisions in the civil rights context never made a difference.7 The Court’s most important white primary decision, Smith v. Allwright,8 inaugurated a political revolution in the urban South. This Article considers both the circumstances that enabled Smith to accomplish what it did and the limitations of that accomplishment. My goal is to shed light on the conditions that enable and disable Supreme Court decisions from effectuating significant social change.9 Part II summarizes the Supreme Court’s three pre-Smith white primary decisions. Part III describes Smith’s legal and political background and also relates the post-Smith history of the white primary. Part IV, the core of the Article, describes the impact of Smith on Southern black voter registration. Relying principally on archival material mined from the NAACP Papers, I describe how Southern ated the pace of racial change by crystallizing Southern white resistance, which led to violent confrontation followed by national intervention in the form of civil rights legislation). 6. Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 MICH. L. REV. 48, 77-88 (2000) [hereinafter Klarman, Criminal Procedure]; Michael J. Klarman, Is the Supreme Court Sometimes Irrelevant? Race and the Southern Criminal Justice System in the World War II Era, J. AM. HIST. (forthcoming 2002) [hereinafter Klarman, Southern Criminal Justice System]. 7. My claim in this Article is that the Court’s ruling in Smith v. Allwright, 321 U.S. 649 (1944), had significant, direct, and immediate consequences for Southern black voter registration. I have argued elsewhere that legal scholars and historians should be more attentive to the possibility that the process of litigation, wholly apart from whether it produced victories in court and whether those court victories translated into concrete changes in social practices, should be understood as an important facet of the early civil rights movement. Klarman, Criminal Procedure, supra note 6, at 88-92; Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 949-52 (1998) [hereinafter Klarman, Progressive Era]. Litigation educated Southern blacks about their rights, provided occasions for organizing local communities, displayed prominent black lawyers such as Charles Houston and Thurgood Marshall as role models for Southern blacks, and educated Northern whites (and Northern judges) about the egregiousness of Jim Crow conditions in the South. 8. 321 U.S. 649 (1944). 9. I regard this Article as supplementing, rather than refuting or even challenging, the claims made by Gerald Rosenberg in THE HOLLOW HOPE. Rosenberg explicitly acknowledges that courts can produce social change under the right set of political and social conditions. ROSENBERG, supra note 1, at 30-36. One of my objectives here is to explore the conditions under which litigation has proven conducive to social change.

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blacks and whites responded to Smith and identify the political and social conditions that enabled Smith to launch a revolution in black political participation in the urban South. Part IV also examines the factors that largely nullified the impact of Smith in the rural South. A brief conclusion addresses the question of why the Supreme Court’s intervention in the white primary context was so much more immediately efficacious than its contemporaneous decisions involving criminal procedure issues affecting Southern blacks or its slightly later ruling in Brown. II. THE PRE-SMITH WHITE PRIMARY CASES The Supreme Court considered the constitutionality of the white primary on three separate occasions prior to Smith v. Allwright.10 In 1927, the Court in Nixon v. Herndon11 invalidated a Texas statute barring black participation in party primaries. This was by far the easiest of the three pre-Smith cases for the Court because state action was unquestionably present. For many years prior to Herndon, the Court had interpreted both the Fourteenth and Fifteenth Amendments to forbid race discrimination only by the state and not by private entities.12 For a political party to exclude blacks from membership raised complicated questions regarding the scope of the state action requirement: Was a political party a public or a private entity? Were elections a public function for which the state was appropriately held accountable? Could the state be deemed responsible for “inviting” a (private) political party to make racially discriminatory membership decisions? No such complications existed in Herndon, however, because the Texas statute, not a party rule, barred black participation in party primaries. Justice Holmes, writing for the Court, saw this as an easy issue. In his two-page opinion, he declined to reach the Fifteenth Amendment question because “it

10. Grovey v. Townsend, 295 U.S. 45 (1935); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536 (1927); see also Love v. Griffith, 266 U.S. 32, 34 (1924) (rejecting initial challenge to the Texas white primary on mootness grounds). For the most extensive treatment of the white primary litigation, see DARLENE CLARK HINE, BLACK VICTORY: THE RISE AND FALL OF THE WHITE PRIMARY IN TEXAS (1979). For other helpful treatments, see RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 137-39, 233-38 (1976); STEVEN F. LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH 1944-1969, at 23-54 (1976); CHARLES S. MANGUM, JR., THE LEGAL STATUS OF THE NEGRO 405-24 (1940); BERNARD H. NELSON, THE FOURTEENTH AMENDMENT AND THE NEGRO SINCE 1920, at 34-41, 85-106 (1946); Robert Wendell Hainsworth, The Negro and the Texas Primaries, 18 J. NEGRO HIST. 426 (1933). 11. 273 U.S. 536 (1927). 12. E.g., James v. Bowman, 190 U.S. 127, 136 (1903) (Fifteenth Amendment); Civil Rights Cases, 109 U.S. 3, 11 (1883) (Fourteenth Amendment).

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seems to us hard to imagine a more direct and obvious infringement of the Fourteenth.”13 Yet Herndon was severely limited in its implications. The Texas white primary statute was the only one of its kind in the nation.14 In other Southern states, blacks were excluded from Democratic primaries by party rule, not by state statute. Herndon did not necessarily have any implications for the constitutionality of these other permutations of the white primary. Thus, the decision was a quintessential example of constitutional law’s proclivity for suppressing outliers.15 In its subsequent white primary cases, stretching from Nixon v. Condon16 in 1932 to Terry v. Adams17 in 1953, the Court had to confront the intractable state action issue. After Herndon, the Texas legislature immediately enacted a law empowering the executive committee of political parties to prescribe qualifications for membership.18 As anticipated and intended, the executive committee of the Texas State Democratic Party quickly passed a resolution excluding blacks from party membership.19 The issue in Condon was whether the state properly could be held responsible for the racially discriminatory actions of the party. By the same five-to-four vote that frequently divided the Justices along liberal/conservative lines on economic issues in the 1930s,20 the Court in Condon found discriminatory state action on the ground that the Texas legislature, rather than the State Democratic Party, had reposed authority in the party executive committee to prescribe membership qualifications.21 The majority declined to reach the question of whether a political party’s exclusion of blacks would qualify as state action in the absence of a

13. Herndon, 273 U.S. at 541. 14. On the novelty and origins of the Texas statute, see HINE, supra note 10, at 47-49; LAWSON, supra note 10, at 24-25; NELSON, supra note 10, at 36-37; Leo Alilunas, Legal Restrictions on the Negro in Politics, 25 J. NEGRO HIST. 153, 167, 172-73 (1940); O. Douglas Weeks, The White Primary, 8 MISS. L.J. 135, 138 (1935). 15. On the notion that the Supreme Court’s constitutional rulings frequently involve suppression of outlier practice, see Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 16-18 (1996); Michael J. Klarman, Rethinking the History of American Freedom, 42 WM. & MARY L. REV. 265, 279 nn.60-65 (2000) (book review). On the notion that Jim Crow statutes frequently reflected rather than fostered Jim Crow norms, see Michael J. Klarman, The Plessy Era, 1998 SUP. CT. REV. 303, 390-91, 397-99, 401-02 (1998) [hereinafter Klarman, Plessy]. 16. 286 U.S. 73 (1932). 17. 345 U.S. 461 (1953). 18. HINE, supra note 10, at 109-11. 19. Condon, 286 U.S. at 82. 20. E.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (minimum wage law); Nebbia v. New York, 291 U.S. 502 (1934) (price regulation); Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) (mortgage moratorium). Barry Cushman has properly cautioned against the casual use of political labels to describe the New Deal Justices. Barry Cushman, The Secret Lives of the Four Horsemen, 83 VA. L. REV. 559 (1997). 21. Condon, 286 U.S. at 88-89.

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statute specifying which decisionmaking entity within the party was responsible for determining membership qualifications.22 Condon’s principal effect was to defer the more fundamental state action issue for an additional three years. The unresolved question was whether the Constitution prevented a political party from excluding blacks from membership when the state had not altered the party’s “natural” decisionmaking apparatus. Just three weeks after Condon, the annual convention of the Texas State Democratic Party passed a resolution barring blacks from membership.23 Condon’s rationale for invalidating the white primary had disappeared—the party had acted on its own, free from state influence over its decisionmaking processes. The Court now had to confront directly the question of whether the state was constitutionally responsible for a political party’s independent decision to bar blacks from membership. In Grovey v. Townsend,24 the Justices unanimously declined to find state action under those circumstances. Grovey is a confused and confusing opinion. Justice Roberts conceded all the ways in which the state had regulated party primaries.25 For example, Texas laws required that primary elections be held, that voter qualifications for general elections be applicable in primaries, that absentee voting be permitted, and that election judges enjoy certain specified powers.26 Justice Roberts identified two differences between primary and general elections that informed the Court’s determination that the exclusion of blacks from Democratic Party primaries was not state action: the state neither paid the expenses of the primary, nor did it furnish or count the ballots.27 Lower court decisions considering the constitutionality of the white primary often had focused on these same factors.28 But neither Justice Roberts nor these lower court judges satisfactorily explained why certain forms of state involvement in primary elections, but not others, constituted the state action necessary to implicate the Fourteenth or Fifteenth Amendments. 22. Id. at 83. 23. LAWSON, supra note 10, at 31. 24. 295 U.S. 45 (1935). 25. Id. at 49-53. 26. Id. at 49. 27. Id. at 50. 28. Nixon v. Condon, 34 F.2d 464 (W.D. Tex. 1929), aff’d, 49 F.2d 1012 (5th Cir. 1931); West v. Bliley, 33 F.2d 177 (E.D. Va. 1929), aff’d, 42 F.2d 101 (4th Cir. 1930); Robinson v. Holman, 26 S.W.2d 66 (Ark. 1930); White v. Lubbock, 30 S.W.2d 722 (Tex. Civ. App. 1930). For commentary on these lower court decisions, see Editorial, RICHMOND TIMES-DISPATCH, Apr. 3, 1935, at 8, reprinted in THE ATTITUDE OF THE SOUTHERN WHITE PRESS TOWARD NEGRO SUFFRAGE, 1932-1940, at 111 (Rayford W. Logan ed., 1940); HINE, supra note 10, ch. 5; PAUL LEWINSON, RACE, CLASS, AND PARTY: A HISTORY OF NEGRO SUFFRAGE AND WHITE POLITICS IN THE SOUTH 155-56 (1932); MANGUM, supra note 10, at 414-16; Weeks, supra note 14, at 144-45, 153.

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Herndon and Condon had little, if any, direct impact on black voting in the South because they were so easily circumvented. Herndon had no application outside of Texas, which was the only state to bar blacks from participating in party primaries by statute. Public reaction to the decision in Texas was nonchalant because black exclusion from party primaries could be accomplished just as easily through party rule as by state statute.29 Similarly, Condon proved insignificant because it simply rerouted the decision to exclude blacks from the party’s executive committee to its annual state convention. It is difficult to comprehend why either ruling would have induced Southern state Democratic parties to permit blacks to participate in their primaries. Grovey upheld the white primary when it was adopted by party convention, so obviously it did not lead to any increase in Southernern black political participation. Interestingly, neither did two lower court decisions in the early 1930s, which invalidated the white Democratic primaries of Virginia and Florida. In both of those states, the government paid for primary elections, unlike in Texas, where the party underwrote the expense. Two lower courts considered this difference dispositive and invalidated the white primaries in those states.30 Yet black voter registration increased very little in Virginia and Florida after these rulings, and in the rural counties of those states, officials completely ignored the decisions.31 Charles Hamilton Houston of the NAACP drew the lesson from these cases that successful litigation accomplished little unless local communities were prepared to act upon favorable court rulings.32 Social and political conditions in the South were not yet ripe in the 1930s for mobilizing the African-American community for effective implementation of litigation victories. Indeed, had these court decisions invalidating white primaries in Virginia and Florida had a more significant impact on black voter registration, state legislatures probably would have transferred financial responsibility for primary elections from the government to political parties in order to insulate the white primary from constitutional challenge. Because the rulings had such little consequence, nobody took steps to circumvent them. 29. See, e.g., NELSON, supra note 10, at 39. On Herndon’s limited overall impact, see id. at 85-86. 30. Bliley v. West, 42 F.2d 101 (4th Cir. 1930); Goode v. Johnson, 149 So. 736 (Fla. 1933). 31. On the limited impact of these decisions, see RALPH J. BUNCHE, THE POLITICAL STATUS OF THE NEGRO IN THE AGE OF FDR 442 (Dewey W. Grantham ed., 1973); HINE, supra note 10, at 95-96, 101. But cf. LEWINSON, supra note 28, at 156 (noting that after the Fourth Circuit decision in Bliley, “there was a noticeable tendency, at least in the larger cities of Virginia, to admit Negroes to the State primaries . . . .”). 32. Alan Robert Burch, The NAACP Before and After Grovey v. Townsend 72-73 (1994) (unpublished master’s thesis, University of Virginia) (on file with author).

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III. THE LEGAL AND POLITICAL CONTEXT OF SMITH V. ALLWRIGHT AND THE SUBSEQUENT HISTORY OF THE WHITE PRIMARY Although Grovey v. Townsend was unanimous, the NAACP never regarded it as “completely fatal” and persisted in trying to persuade the Justices to reconsider their decision.33 Before the NAACP could carry another white primary case to the Court, however, an intervening decision on a related issue raised hopes that the Justices might reconsider Grovey. United States v. Classic,34 decided in 1941, raised the question of whether the Federal Government had the constitutional power to punish fraud in primary elections for national offices. Article I, section 4 of the Constitution empowers Congress to regulate “The Times, Places and Manner of holding Elections for Senators and Representatives . . . .”35 In Newberry v. United States,36 decided in 1921, a splintered Court had ruled that this constitutional provision did not authorize Congress to regulate primary elections for the United States Senate on the ground that primaries were not “Elections” within the meaning of Article I, section 4.37 In Classic, the Court overruled Newberry and sustained the Federal Government’s power to prosecute Louisiana election commissioners who had committed fraud during a primary election for a seat in the United States Congress. The Court in Classic took care not to impeach the continuing validity of Grovey. The government brief in Classic distinguished Grovey, rather than asking the Court to overrule it, and Justice Stone’s majority opinion made no mention whatsoever of Grovey.38 The two cases are indeed distinguishable, and in more than one way. First, Louisiana and Texas laws regulated party primaries differently, and thus it was possible to identify state action in one case without finding it in the other. Specifically, Louisiana law required that parties conduct primaries if they wanted their candidates to ap-

33. Letter from Charles H. Houston to R.D. Evans (Mar. 9, 1938), microformed on NAACP Papers, pt. IV, reel 3, fr. 366. Documents from the NAACP Papers, cited throughout this Article, can be found in a Microfilm Edition at libraries across the United States. A permanent collection with a different numbering system also can be found at the Library of Congress’s Manuscript Division in Washington, D.C. 34. 313 U.S. 299 (1941). Classic is discussed in ROBERT K. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 85-120 (1947); David M. Bixby, The Roosevelt Court, Democratic Ideology and Minority Rights: Another Look at United States v. Classic, 90 YALE L.J. 741, 792-815 (1981). 35. U.S. CONST. art. I, § 4, cl. 1. 36. 256 U.S. 232 (1921). Newberry is discussed in Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, Part 3: Black Disfranchisement from the KKK to the Grandfather Clause, 82 COLUM. L. REV. 835, 887-98 (1982). 37. Newberry, 256 U.S. at 249-50. 38. For the government’s brief in Classic, see LAWSON, supra note 10, at 40.

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pear on the general election ballot, while Texas law did not.39 Also, Louisiana paid the cost of party primaries,40 while Texas did not.41 Second, Grovey involved the question of whether party regulation of primaries constituted state action under the Fourteenth or Fifteenth Amendments, while Classic raised the issue of whether primaries were “Elections” under Article I, section 4. These two questions need not yield the same answer. The Court had long held, for example, that under Article I, section 4, Congress could regulate individual action interfering with the right to vote in federal elections.42 Yet it had simultaneously denied Congress the power under the enforcement sections of the Fourteenth and Fifteenth Amendments to prohibit individual action interfering with the rights of blacks.43 Given that the Court had imposed a state action requirement for congressional regulation under the Reconstruction Amendments but not under Article I, section 4, it was perfectly conceivable that the Justices would treat primary elections differently under these two constitutional provisions. Thus, Classic in no sense mandated the overthrow of Grovey. On the other hand, much of the Court’s reasoning in Classic seemed directly relevant to the constitutionality of the white primary under the Reconstruction Amendments. In holding that a party primary was an “Election” under Article I, section 4, the Court emphasized a variety of factors that would seem equally relevant to the state action issue under the Fourteenth and Fifteenth Amendments:44 Louisiana paid the costs of the primary; state law required that party candidates on the general election ballot be selected through primaries; state law regulated the time, place, and manner of the primary election; and finally, as a practical matter, the primary election result determined the outcome of the general election in the one-party state of Louisiana. Lower courts and the Supreme Court previously had considered precisely the same sorts of factors in deciding whether party rules excluding blacks from primary elections amounted to unconstitutional state action under the Fourteenth or Fifteenth Amendments.45 Assuming that the factors enumerated in Classic would indeed prove relevant to the Court’s future determination of the constitutionality of white primaries under the Reconstruction Amendments, the critical question became how to interpret the following passage from Classic: Constitutional rights were implicated 39. 40. 41. 42. 43. 44. 45.

Classic, 313 U.S. at 312-13. Id. at 311. Grovey v. Townsend, 295 U.S. 45, 50 (1935). E.g., Ex parte Yarbrough, 110 U.S. 651, 661-62 (1884). See supra note 12. Classic, 313 U.S. at 318-20. See supra note 28 and accompanying text.

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in primary elections “[w]here the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice.”46 Throughout the one-party South in the 1940s, Democratic primaries “effectively control[led] the choice” at the general election. Yet different states regulated primaries differently, and nobody could be certain what it meant for state law to make the primary “an integral part of the procedure of choice.”47 Many contemporary commentators were convinced that Classic had implications for the white primary,48 and Justice Harlan Fiske Stone later wrote that he had considered Grovey doomed from the moment he penned the majority opinion in Classic.49 NAACP lawyers were among those observers who were confident that the days of the white primary were numbered after Classic.50 Yet it surely would have been possible for the Justices to leave Grovey in place after Classic, had they been inclined to do so, either by distinguishing Texas law from Louisiana law or by distinguishing the Article I question from that raised under the Fourteenth and Fifteenth Amendments. Lower court judges, for example, plainly did not believe that Grovey had been (silently) overruled by Classic.51 Just a couple of years later, however, the Justices granted certiorari in Smith v. Allwright to reconcile “a claimed inconsistency” between Grovey and Classic—an inconsistency that somehow had escaped their attention when they decided the latter.52 By an eight-toone vote, the Court overruled Grovey, observing, among other things, that the rule of stare decisis carries reduced weight in constitutional cases.53 Justice Reed’s majority opinion, noting that “[t]he party takes its character as a state agency from the duties imposed upon it by state statutes,”54 emphasized the multiplicity of ways in which Texas law regulated the state Democratic Party and its primaries— for example, requiring that primary elections be held at particular 46. Classic, 313 U.S. at 318. 47. On alternative ways to read Classic, see Bixby, supra note 34, at 803-05. 48. For contemporary predictions after Classic that the Court would overrule Grovey, see VIRGINIUS DABNEY, BELOW THE POTOMAC: A BOOK ABOUT THE NEW SOUTH 197 (1942); Fred G. Folsom, Jr., Federal Elections and the “White Primary”, 43 COLUM. L. REV. 1026, 1027-28, 1033-35 (1943); see also Bixby, supra note 34, at 803-04 (noting that both contemporary commentators and the Justices seemed to appreciate the implications of Classic for the white primary issue). 49. Bixby, supra note 34, at 803-04. 50. See, e.g., HINE, supra note 10, at 205-07, 213-14 (describing the views of Thurgood Marshall and the NAACP). 51. See, e.g., Smith v. Allwright, 131 F.2d 593 (5th Cir. 1942) (per curiam) (affirming a lower court decision that had rejected a constitutional challenge to the Texas white primary, Classic notwithstanding). 52. 321 U.S. 649, 652 (1944). For background on Smith, see HINE, supra note 10, ch. 10; LAWSON, supra note 10, ch. 2. 53. Smith, 321 U.S. at 665-66. 54. Id. at 663.

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times, conducted in certain manners, and subjected to state oversight.55 The Court also emphasized what appeared to be a logically separate point: that primaries had “become a part of the machinery for choosing officials” and that Texas could not escape responsibility by “casting its electoral process in a form which permits a private organization to practice racial discrimination in the election.”56 These latter phrases raised the possibility that the Court might deem party primaries to be state action, regardless of how state law regulated them. The shift from a nine-to-zero ruling in Grovey to an eight-to-one decision overruling it in Smith, within just a nine-year period, is unprecedented in Supreme Court history. It is tempting to attribute this turnabout to President Roosevelt’s virtually complete recomposition of the Court during the intervening years. Only one Justice— Harlan Fiske Stone—changed his mind in the interim. The only other surviving member of the Grovey Court was the decision’s author, Justice Owen Roberts. He penned a bitter dissent in Smith, lamenting the Stone Court’s propensity for overruling precedents,57 which “tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.”58 Focusing on the Court’s recomposition as the explanation for the result in Smith, though, misses something more fundamental—the significance of World War II. This is necessarily a point of speculation because nothing in the Smith opinion or the surviving conference notes refers to the significance of the war. Still, the Justices cannot have failed to observe the tension between a purportedly democratic war fought against the Nazis, with their theories of Aryan supremacy, and the pervasive disfranchisement of Southern blacks. With black soldiers “dying just as same as the white,”59 the Justices must have felt tempted to do their part in ameliorating the hypocrisy of America’s democratic pretensions. As the New York Times approvingly noted the day after Smith, the ruling put America “a little nearer to a more perfect democracy, in which there will be but one class of citizens . . . .”60 Around the same time as Smith, Congress debated both a general repeal of the poll tax in federal elections and a more limited bill to suspend poll tax payments in federal elections for

55. Id. at 662-64. 56. Id. at 664. 57. On the rising number of dissents, see C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND VALUES 1937-1947, at 23, 25 tbl.1 (1948). 58. Smith, 321 U.S. at 669 (Roberts, J., dissenting). 59. Letter from anonymous correspondent in Gurdon, Ark., to NAACP (July 16, 1944), microformed on NAACP Papers, pt. IV, reel 6, fr. 682. 60. Primaries Are Not Private, N.Y. TIMES, Apr. 5, 1944, at 18.

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members of the armed services.61 The same democratic ideology that inspired Congress to consider these measures probably influenced the Justices’ thinking about the white primary. The one decisive difference between Congress and the Court, however, was that the Southern Democrats’ stranglehold over the former (the Senate, specifically) did not extend to the latter. The bill to repeal the poll tax failed in the Senate at the same time the Court was interring the white primary.62 Another reason Smith may have proven a relatively easy decision for the Justices—if not as a matter of law, at least as a matter of policy—was that most Americans would have endorsed the result. The best evidence for this proposition involves Northern attitudes on an analogous issue—federal legislation to repeal the poll tax. The voting patterns of Northern congressmen suggest overwhelming support in Northern opinion for abolition of this other set of peculiarly Southern suffrage restrictions.63 There is no reason to think that most northerners would have felt differently about white primaries and poll taxes. Both of these suffrage restrictions applied only in seven or eight Southern states by the mid-1940s.64 Moreover, even Southern whites evinced significantly less commitment to preserving white political supremacy than, for example, to maintaining racial segregation in public education. That is, black disfranchisement ranked relatively low on the hierarchy of white supremacist convictions.65 This may explain why Kentuckian Stanley Reed apparently had no qualms about writing the majority opinion in Smith, whereas in Brown v. Board of Education he planned to dissent until virtually the last minute.66

61. On poll tax repeal, see LAWSON, supra note 10, at 65-66, 72-75. 62. FREDERIC D. OGDEN, THE POLL TAX IN THE SOUTH 247 (1958). 63. LAWSON, supra note 10, at 58, 68-70. 64. Eight Southern states still employed a poll tax as a suffrage qualification in 1944: Alabama, Arkansas, Georgia, Mississippi, South Carolina, Tennessee, Texas, and Virginia. OGDEN, supra note 62, at 185-201. These same states also conducted white primaries, although in Tennessee only in certain counties, not at the state level. North Carolina, which had eliminated its poll tax in 1920, likewise continued to use a white primary only in certain counties. 65. See GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 60-61, 587-88 (1944); see also LAWSON, supra note 10, at 22 (noting that black disfranchisement fell near the bottom of the white southerners’ hierarchy of racial preferences); cf. THOMAS A. KRUEGER, AND PROMISES TO KEEP: THE SOUTHERN CONFERENCE FOR HUMAN WELFARE, 1938-1948, at 128 (1967) (noting that the Southern Conference for Human Welfare secured a public statement signed by several hundred southerners in support of Smith). 66. For Reed’s position in Brown, see KLUGER, supra note 10, at 595-96, 655-56, 680, 698. On Reed’s racial views generally, which clearly sympathized with segregation, see JOHN D. FASSETT, NEW DEAL JUSTICE: THE LIFE OF STANLEY REED OF KENTUCKY 555-80 (1994).

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Smith was not, as Thurgood Marshall claimed, “so clear and free of ambiguity” that it settled “once and for all” the right of blacks to participate in party primaries.67 To the contrary, ambiguity in the Smith opinion virtually invited efforts at circumvention.68 Specifically, to the extent that Smith turned on the fact that Texas law extensively regulated the state Democratic Party and its primaries, the Court’s ruling naturally led Southern states to consider deregulation as a response. South Carolina wasted no time.69 Within a fortnight of Smith, Governor Olin Johnston convened a special session of the state legislature and successfully urged the repeal of all 150 state statutes regulating political parties.70 Other Deep South states evinced considerable enthusiasm for following suit but instead adopted a wait-and-see posture as lower federal courts wrestled with South Carolina’s efforts to circumvent Smith.71 In 1947, in Elmore v. Rice,72 a South Carolina Federal District Judge, J. Waties Waring, ruled that the State Democratic Party’s exclusion of blacks was unconstitutional state action, notwithstanding the legislature’s recent deregulation of the party. Under Classic, the constitutional ramifications of party primaries had turned on either of two factors—whether “state law has made the primary an integral part of the procedure of choice” or whether “in fact the primary effectively controls the choice.”73 While legislative deregulation arguably had removed the former rationale for finding state action in the South Carolina Democratic Party’s exclusion of blacks, the latter consideration remained fully applicable.74 For example, in seven of the previous eight presidential elections, the Republican candidate 67. LAWSON, supra note 10, at 46. 68. See, e.g., James D. Barnett, Note & Comment, 23 OR. L. REV. 264, 267 (1944); Note, Negro Disenfranchisement—A Challenge to the Constitution, 47 COLUM. L. REV. 76, 81 (1947) [hereinafter Negro Disenfranchisement] (noting that Smith itself “suggested new means of evasion”). 69. On South Carolina’s response, see LAWSON, supra note 10, at 49-50; PATRICIA SULLIVAN, DAYS OF HOPE: RACE AND DEMOCRACY IN THE NEW DEAL ERA 169-70 (1996); N.Y. TIMES, Apr. 18, 1944, at 13. 70. On Governor Johnston’s message to the special legislative session on April 14, 1944, see infra notes 240-44 and accompanying text. 71. See, e.g., John N. Popham, Negro Vote Battle Looms in Alabama, N.Y. TIMES, Mar. 3, 1947, at 44 (Alabama); Democratic Vote of Negroes Upheld, N.Y TIMES, July 28, 1945, at 24 (Tallahassee); Letter from William P. Baskin to Herman Talmadge (May 16, 1947), microformed on NAACP Papers, pt. IV, reel 9, frs. 983-84 (Georgia); Letter from A.T. Walden to Francis J. Biddle (March 18, 1945), id. pt. IV, reel 7, fr. 637 (Atlanta); Frank Chappell, State Demo Chairmen Set Dallas Meet, DAILY TIMES HERALD (Jan. 29, 1947), id. pt. IV, reel 8, fr. 194 (Texas); Letter from John H. McCray to Oliver W. Harrington (Jan. 18, 1947), id. pt. IV, reel 10, fr. 850; Letter from Thurgood Marshall to Thurman Arnold (Apr. 7, 1947), id. pt. IV, reel 10, fr. 875. 72. 72 F. Supp. 516 (E.D.S.C. 1947), aff’d, 165 F.2d 387 (4th Cir. 1947). 73. United States v. Classic, 313 U.S. 299, 318 (1941). 74. For useful commentary on the constitutional issue raised in Elmore, see Negro Disenfranchisement, supra note 68, at 80-90.

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had won less than five percent of the popular vote in South Carolina;75 thus, the Democratic Party primary clearly “control[led] the choice” at the general election. In his opinion invalidating the South Carolina Democratic Party’s exclusion of blacks, Judge Waring emphasized both the extent to which state law had regulated political parties prior to deregulation and the Democratic Party’s historical domination of election results in South Carolina.76 Waring considered it “pure sophistry” to suggest that the legislature’s deregulation efforts had made any material difference to political realities in South Carolina, and he denied that “the skies will fall” if the State Democratic Party permitted blacks to participate in its primaries.77 Invoking the Cold War imperative for racial change as a partial justification for his ruling,78 Waring declared “[i]t is time for South Carolina to rejoin the Union.”79 The Fourth Circuit affirmed Judge Waring in a less flamboyant opinion.80 The Supreme Court, probably delighted to have Southern judges running interference on such a politically sensitive racial issue, denied review.81 South Carolina’s efforts to evade Smith had “received a complete and shattering defeat.”82 Other Deep South states now abandoned consideration of the deregulation option.83 Yet even Elmore did not, as Marshall had hoped, nail down the lid in “the coffin of the white primary.”84 One more iteration of the white primary remained for the Court’s consideration. In Fort Bend County, Texas, the Jaybird Democratic Association had been excluding blacks from its pre-primary selection of candidates since 1889.85 The Association, a political club consisting of all whites in the county, selected candidates for office who invariably became the Democratic Party nominees. Then, just as invariably, the nominees triumphed in 75. Election results in Preliminary Memorandum regarding Primaries in South Carolina and Georgia (Feb. 10, 1947), microformed on NAACP Papers, pt. IV, reel 10, fr. 470. 76. Elmore, 72 F. Supp. at 523. 77. Id. at 527. 78. The Cold War imperative for racial change was the notion that America must alter its racial attitudes and practices to defuse Soviet propaganda and convince the nonwhite nations of Africa and Asia that democratic capitalism was not synonymous with white supremacy. For the most extensive documentation of the Cold War imperative, see MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY (2000). 79. Elmore, 72 F. Supp. at 528. 80. Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947). 81. Rice v. Elmore, 333 U.S. 875 (1948). 82. The Right to Vote, 4 NEW SOUTH 1, 3 (Feb. 1949), microformed on NAACP Papers, pt. IV, reel 7, frs. 554, 556 [hereinafter The Right to Vote]. 83. See Letter from Thurgood Marshall to C.A. Scott (Sept. 23, 1947), id. pt. IV, reel 8, fr. 209. 84. Letter from William H. Hastie to Thurgood Marshall (July 19, 1947), id. pt. IV, reel 9, frs. 900-01; see also Letter from Thurgood Marshall to William H. Hastie (July 22, 1947), id. pt. IV, reel 9, frs. 902-03 (confirming Hastie’s estimation of the effect of Elmore). 85. Terry v. Adams, 345 U.S. 461, 463 (1952).

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the general election. Other East Texas counties operated similar exclusionary schemes, some dating back as far as the late 1870s.86 While the Jaybirds did not create their Association to circumvent Smith and Elmore, they may just as well have, since it is easy to imagine the rest of the South following suit if the Court had sustained the constitutionality of this scheme. The Justices thus had a strong incentive to invalidate the Jaybirds’ pre-primary. At conference, they evinced concern that “if this [scheme] is approved, it will be seized upon” and that to allow the Jaybirds’ pre-primary “would practically overturn the previous cases.”87 In Terry v. Adams,88 the Justices, by an eight-to-one vote, interred the Jaybirds’ “hateful little local scheme,” though some of them belived that they sacrificed “sound principle[s] of interpretation” in doing so.89 None of the rationales articulated by the three separate opinions in support of the conclusion that the Jaybirds’ scheme involved the requisite state action for a constitutional violation was terribly persuasive.90 The principal difficulty for the Justices involved drawing a line between the Jaybirds’ discriminatory political scheme (which the Court ruled unconstitutional under the Fifteenth Amendment), and the discriminatory political preferences of private individuals (which not only fail to violate the Constitution, but actually receive affirmative protection under the First Amendment). The Court’s inability to articulate a principle distinguishing the unconstitutional Jaybird pre-primary from constitutionally protected private discriminatory preferences led Justice Minton, the sole dissenter, to charge in a note to Justice Jackson that “[w]hen the Jaybird opinion comes down, there may be some question as to which election returns the Court follows! It will be damn clear they aren’t

86. HINE, supra note 10, at 27-29; LAWRENCE D. RICE, THE NEGRO IN TEXAS 18741900, at 118 (1971); see also J. Austin Burkhart, The White Man’s Primary, 56 THE CRISIS 81, 81-82 (March 1949) (noting a similar exclusionary scheme in Grimes County, Texas); id. at 191-92 (March 1951) (noting a circuit court decision in Harrison County, Texas, which refused to permit the exclusion of blacks from the “Citizens Party,” an organization that effectively had controlled the outcome of county primary elections for the past fifty years). 87. Justices Black and Clark, respectively, quoted in 2 DELAVAN DICKSON, THE SUPREME COURT IN CONFERENCE: 1940-1985, at 838-40 (2001). 88. 345 U.S. at 471. 89. Robert H. Jackson, Draft Dissent, Terry v. Adams 1, 9 (Apr. 3, 1953) (Robert Jackson papers, Collections of the Manuscript Division, Library of Congress, Box 179, Case No.52). 90. For discussion and criticism of the Terry opinions, see Michael J. Klarman, Neither Hero, Nor Villain: The Supreme Court, Race, and the Constitution in the Twentieth Century. Chapter Four: The World War II Era 33-36 (unpublished manuscript, on file with author); see also SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 93-95 (1998) (raising questions about the meaning and implications of Terry).

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following any law.”91 In the same year that they pondered the invalidation of racial segregation in public education, the Justices displayed an unwillingness to legitimize a Southern community’s scheme for disfranchising blacks, regardless of how strained the constitutional rationale for invalidating it. IV. THE CONSEQUENCES OF SMITH V. ALLWRIGHT In 1940, just three percent of eligible Southern blacks were registered to vote, but by 1952 twenty percent were.92 Some of that increase preceded Smith and therefore must be attributed to various factors associated with World War II, rather than to the Court’s intervention.93 Nor can one attribute all of the post-1944 increase in Southern black voter registration to Smith. Yet the Court’s invalidation of the white primary contributed significantly to the dramatic increase in Southern black voter registration that took place in the middle and late 1940s. Why Smith should have had this effect is an interesting question, given that lower court decisions in the early 1930s invalidating the white primaries of Virginia and Florida did not.94 Numerous changes in the Southern social and political climate enabled Smith to have such a notable impact. The most important of these were the following: an increased willingness among white Southerners to tolerate black political participation; the greater assertiveness of Southern blacks in demanding their rights; the proliferation of NAACP branches in the South, which facilitated legal challenges to efforts at nullifying Smith; an increased threat of Justice Department prosecution of persons continuing to obstruct black suffrage; and the unprecedented willingness of Southern judges to generously construe black voting rights. Together, these factors created an environment in which the Court’s invalidation of the white primary launched a political revolution in the urban South. Without these propitious background circumstances, Smith likely would have 91. Letter from Sherman Minton to Robert Jackson (March 28, 1953), quoted in MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961, at 112 (1994). 92. DAVID J. GARROW, PROTEST AT SELMA: MARTIN LUTHER KING, JR., AND THE VOTING RIGHTS ACT OF 1965, at 7 tbl.1-1, 11 tbl.1-2 (1978); LAWSON, supra note 10, at 284 tbl.1. 93. For blacks trying to register to vote or to participate in Democratic Party primaries before Smith, see, for example, Letter from Donald Jones to Thurgood Marshall (Aug. 10, 1942), microformed on NAACP Papers, pt. IV, reel 8, fr. 387; Letter from Bennett B. Ross to Walter White (Aug. 22, 1942), id. pt. IV, reel 8, fr. 389; Letter from Carsie A. Hall to Thurgood Marshall (Aug. 26, 1942), id. pt. IV, reel 8, fr. 797; Letter from W.R. Saxon to Thurgood Marshall (Mar. 15, 1941), id. pt. IV, reel 9, fr. 151. I have described at some length the variety of ways in which World War II contributed to changes in American racial attitudes and practices. See generally Klarman, supra note 90. 94. See supra note 31.

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been almost as inconsequential as earlier voting rights decisions, such as Guinn v. United States95 and Nixon v. Herndon.96 Each of these factors warrants a closer look, though first we should consider briefly the immediate impact of Smith on the South. In states like Tennessee and North Carolina, which never had conducted statewide white primaries, and Virginia, where federal courts had invalidated the white primary over a decade earlier, white reaction to Smith proved mostly calm and collected.97 The two leading Richmond newspapers, for example, endorsed the ruling. One of them observed that blacks had voted in Virginia’s Democratic primaries for years, yet “the skies haven’t fallen.”98 Moreover, in Arkansas and Texas—states which had barred black participation in Democratic primaries prior to Smith—many counties immediately dismantled racial barriers after the Court’s ruling.99 In the Deep South, however, Democratic Party officials and officeholders pledged resistance. Party committees in Florida, Georgia, South Carolina, Alabama, Louisiana, and Mississippi resolved to maintain their racial exclusivity, and blacks in those states generally were not permitted to vote in primaries in the spring and summer of 1944.100 That year, only an estimated 200,000 Southern blacks were registered to vote, overwhelmingly as Republicans.101 Within just a couple of years, however, huge changes took place. Blacks participated in large numbers in Democratic primaries in Georgia, Florida, and Texas by 1946, in Louisiana and South Carolina by 1948, and even in Mississippi by 1950. The number of Southern blacks registered to vote rose to between 700,000 and 800,000 by

95. 238 U.S. 347 (1915) (invalidating the grandfather clause); see also Klarman, Progressive Era, supra note 7, at 919-21 (noting that Guinn had essentially no impact on black disfranchisement). 96. 273 U.S. 536 (1927). On Herndon’s lack of concrete significance, see supra note 29 and accompanying text. 97. See, e.g., Southern Leaders Prepare to Resist, N.Y. TIMES, Apr. 4, 1944, at 15; Dixie Vote (unidentified and undated press clipping), microformed on NAACP Papers, pt. IV, reel 7, fr. 583; see also Court Decision No Impasse, ATLANTA CONST. (Apr. 5, 1944), id. pt. IV, reel 7, fr. 585 (urging calm, noting that several states already allowed blacks to vote in Democratic Party primaries, and observing that blacks obviously would not be permitted to exercise political control in the Deep South); Letter from B.R. Edmunds to NAACP (Dec. 2, 1944), id. pt. IV, reel 7, fr. 424 (observing that blacks already could vote freely in most parts of Virginia, North Carolina, Kentucky, Tennessee, and Oklahoma). 98. Richmond Times Dispatch, quoted in HINE, supra note 10, at 224. 99. Letter from Thurgood Marshall to A.T. Walden (July 26, 1944), microformed on NAACP Papers, pt. IV, reel 7, frs. 620-21. 100. See infra notes 231-32 and accompanying text. 101. For estimates on black voter registration, see Memorandum from Palmer Weber to Thurgood Marshall et al., Citizenship in the South (Nov. 8, 1948), microformed on NAACP Papers, pt. IV, reel 7, frs. 549-53 [hereinafter Weber, Citizenship].

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1948 and then to one million by 1952.102 Georgia experienced the quickest and most startling transformation—black voter registration increased from roughly 20,000 in 1940 to 125,000 in 1947.103 In South Carolina, where essentially no blacks were permitted to vote in Democratic primaries in 1946, an estimated 35,000 participated in 1948.104 That same year, the number of registered black voters in Louisiana increased from 8,000 to 43,000 within an eight-month period; by 1952, the number had grown to 107,000.105 In Florida, the number of registered black voters increased from 49,000 in 1947 to 116,000 in 1950.106 Even in Mississippi, where resistance to black suffrage remained intense, black voter registration rose from 2,500 in 1946 to 20,000 in 1950.107 Based on this stunning increase in Southern black voter registration, the NAACP proclaimed Smith “a giant milestone in the progress of Negro Americans toward full citizenship.”108 Without Smith, these changes probably would not have taken place when they did.109 But even with Smith, other supportive conditions were necessary to accomplish this “first real break-through since 1900 in the rights of the Negro people to exercise the franchise.”110 One important change that had taken place between Grovey in 1935 and Smith in 1944 was the greater receptivity of Southern whites to black political participation. One should not overstate the point; many whites, especially in the Deep South, remained bitterly opposed to black suffrage with its historical connotations of “Negro domination.” Yet by 1944, that reactionary perspective faced new competition. Many Southern white newspapers, especially but not exclusively in the peripheral South, endorsed Smith on the ground that blacks should receive “their fair and just political . . . rights.”111 An editorial appearing in the white 102. For the 1948 estimate, see id. at fr. 549. For the 1952 estimate from the Southern Regional Council, see NUMAN V. BARTLEY, THE NEW SOUTH, 1945-80: THE STORY OF THE SOUTH’S MODERNIZATION 171 (1995). 103. HINE, supra note 10, at 238; LAWSON, supra note 10, at 134 tbl.1. 104. Along the N.A.A.C.P. Battlefront, 55 THE CRISIS 274, 274 (Sept. 1948). 105. ADAM FAIRCLOUGH, RACE & DEMOCRACY: THE CIVIL RIGHTS STRUGGLE IN LOUISIANA, 1915-1972, at 106, 131 (1995); Weber, Citizenship, supra note 101, at fr. 550. 106. Steven F. Lawson, David R. Colburn & Darryl Paulson, Groveland: Florida’s Little Scottsboro, 65 FLA. HIST. Q. 1, 2 (1986); see also Caroline Emmons, “Somebody Has Got To Do That Work:” Harry T. Moore and the Struggle for African-American Voting Rights in Florida, 82 J. NEGRO HIST. 232, 242 (1997) (noting that between 1948 and 1950, more blacks registered to vote than at any other time in Florida history, as the percentage of eligible blacks registered rose from 16.9 percent to 31.7 percent). 107. LAWSON, supra note 10, at 114. 108. Editorial, 116,000 Georgia Registrants, 53 THE CRISIS 201, 201 (July 1946). 109. For other scholars and commentators attributing great causal significance to Smith, see FAIRCLOUGH, supra note 105, at 102; HINE, supra note 10, at 222-23; HENRY LEE MOON, BALANCE OF POWER: THE NEGRO VOTE 178 (1948). 110. Weber, Citizenship, supra note 101, at fr. 549. 111. Time Bomb, TIME, Apr. 17, 1944, at 20, 21 (quoting the DALLAS NEWS). Other supportive white newspaper reaction is reproduced in Editorial, Time for Statesmanship,

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newspapers of Columbus and Macon, Georgia, which advocated compliance with Smith, elicited surprising statements of support for the author, rather than the anticipated harassing midnight phone calls.112 When Deep South states adopted evasive measures after Smith to impede black political participation, many white newspapers voiced opposition.113 When Alabamians voted in 1946 on whether to change their constitution to empower registrars to administer vaguely worded literacy tests designed to bar black voter registration—the so-called Boswell amendment—only a bare majority of whites (fifty-four percent) supported the measure.114 Some progressive white Southerners, including those supporting organized labor’s concurrent efforts to unionize the South, calculated that black enfranchisement probably would benefit liberal politicians.115 Economically populist and racially moderate governors, like Earl Long of Louisiana and Big Jim Folsom of Alabama, not only tolerated, but actively supported, the surge in black voter registration that followed Smith.116 Folsom campaigned against the Boswell amendment in 1946, and as governor, urged blacks who had been unfairly denied registration to sue local officials who proved beyond the governor’s political control.117 The white political establishment in Atlanta apparently also endorsed black suffrage, as Fulton County registrars in 1948 not only permitted blacks to register, but actually set up shop in black schools and churches to facilitate their enroll51 THE CRISIS 136 (May 1944); Supreme Court Rules Out White Primaries, 51 THE CRISIS 164, 165 (May 1944). 112. Report by the Committee of Editors and Writers of the South, Voting Restrictions in the 13 Southern States, microformed on NAACP Papers, pt. IV, reel 7, frs. 451-67. 113. See, e.g., Editorial, White Supremacy, DALLAS NEWS (Jan. 7, 1948), id. pt. IV, reel 8, fr. 211; Editorial, Mississippi Mud, BIRMINGHAM HERALD (Aug. 7, 1947), id. pt. IV, reel 9, fr. 126; Editorial, An Expected Decision, ATLANTA CONST. (Mar. 4, 1946), id. pt. IV, reel 7, fr. 713; see also Popham, supra note 71, at 44 (noting that most of Alabama’s large newspapers opposed the Boswell Amendment). 114. V.O. KEY, JR., SOUTHERN POLITICS IN STATE AND NATION 635 (1949) (noting that the vote on the Boswell amendment disproves the notion that all white southerners think alike on racial issues); LAWSON, supra note 10, at 91-92. 115. See Weber, Citizenship, supra note 101, at fr. 549. 116. On Folsom, see LAWSON, supra note 10, at 91; ROBERT J. NORRELL, REAPING THE WHIRLWIND: THE CIVIL RIGHTS MOVEMENT IN TUSKEGEE 72-74, 88-89 (1985); GEORGE E. SIMS, THE LITTLE MAN’S BIG FRIEND: JAMES E. FOLSOM IN ALABAMA POLITICS, 1946-1958, at 163-65, 168, 171-72 (1985); Members Deny Conspiracy Against Votes (unidentified and undated press clipping), microformed on NAACP Papers, pt. IV, reel 6, fr. 241; Letter from O.H. Finney, Jr., to Willie Louis Dick (Dec. 6, 1949), id. pt. IV, reel 6, fr. 248. On Long, see FAIRCLOUGH, supra note 105, at 132; Weber, Citizenship, supra note 101, at fr. 550. For other Southern politicians endorsing Smith, or at least declining to evade or defy it, see ELLIS ARNALL, THE SHORE DIMLY SEEN 59-60 (1946) (Governor Arnall of Georgia); Rehearing Sought on Negroes’ Voting, N.Y. TIMES, Apr. 5, 1944, at 12 (Governor Coke Stevenson of Texas); Flyer Encouraging Blacks to Register (June 26, 1944), microformed on NAACP Papers, pt. IV, reel 6, fr. 267 (Chauncey Sparks of Alabama); Emmons, supra note 106, at 235 (Florida Attorney General Tom Watson). 117. SIMS, supra note 116, at 163-164.

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ment.118 Even in South Carolina, some white Democrats struggled to open their party to blacks, reasoning that a great many black citizens were “now qualified in mind and character to take part in our form of government,”119 that black soldiers were doing their part in a war fought for democratic ends, and that black enfranchisement would help convince minority peoples around the world that American democracy protected human rights without regard to race.120 Many ordinary white citizens, lacking in any particular political incentive, tolerated or even supported black suffrage because they could not see how to justify continued disfranchisement in a democratic age. Novel schemes to impede black suffrage were, in the words of one white newspaper, an effort “to turn the clock back, a failure to face up to facts.”121 One white South Carolina Democrat wrote to Thurgood Marshall to distance himself from his party’s continuing efforts to exclude blacks, which he believed “profan[ed] the Bill of Rights.”122 A white Alabama Democrat criticized her party’s continued proscription of blacks as a “cruel and a shameful thing.”123 Other Southern whites shared the view that “[m]en who faced bullets overseas deserve ballots at home” and that black disfranchisement reflected “the [same] hateful ideologies” that the country had been fighting against in World War II.124 Another critical change in circumstance that enabled more effective enforcement of Smith was the greater capacity of Southern blacks by 1944 to capitalize on a favorable Court decision. Earlier civil rights victories in the Supreme Court had entailed few practical consequences, partly because the African-American community had been unable to mobilize behind their enforcement.125 Smith was a 118. ATLANTA DAILY WORLD (Apr. 13, 1948), microformed on NAACP Papers, pt. IV, reel 8, fr. 228. 119. NAACP Press Release (May 5, 1942), id. pt. IV, reel 10, fr. 715. 120. Letter from James M. Hinton to Thurgood Marshall (Apr. 22, 1942), id. pt. IV, reel 10, frs. 709-10; Negro Suffrage in Primaries Urged by 21 White Citizens (unidentified and undated press clipping), id. pt. IV, reel 10, fr. 729. 121. Editorial, Mississippi Mud, supra note 113, at fr. 126. 122. Letter from John M. Lofton, Jr., to Thurgood Marshall (undated), microformed on NAACP Papers, pt. IV, reel 9, fr. 957. 123. Letter from Dorothy Q. Rainey to J. Lon Duckworth (June 20, 1944), id. pt. IV, reel 7, frs. 592-93. 124. Political advertisement, Qualified to Vote But Denied the Chance, BIRMINGHAM POST (June 17, 1946), id. pt. IV, reel 6, frs. 263-66. For other examples of white support for black political participation, see Greater Little Rock Ministerial Alliance Opposes S.B. 256 and S.B. 257, ARK. LAB. J. (Feb. 28, 1945), id. pt. IV, reel 6, fr. 692; Letter from B.R. Edmunds to NAACP, supra note 97, at fr. 424. 125. See, e.g., Klarman, Progressive Era, supra note 7, at 919-21 (noting that the grandfather clause decisions had no impact on black disfranchisement); id. at 926-30 (noting that Bailey v. Alabama, 219 U.S. 219 (1911), and United States v. Reynolds, 235 U.S. 133 (1914), had little impact on Southern black peonage); id. at 941-44 (noting that Buchanan v. Warley, 245 U.S. 60 (1917), had no significant impact on residential segregation).

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highly salient event for Southern blacks, and they quickly seized upon it as the occasion for registering to vote and demanding access to Democratic primaries.126 Thousands of returning World War II veterans took their release papers that entitled them to exemption from the poll tax, headed off to city hall, and demanded that they be registered to vote.127 Many expressed the conviction that “[a]fter having been overseas fighting for democracy, . . . when we got back here we should enjoy a little of it.”128 Non-veterans also sought to register in large numbers after Smith.129 Across the South, blacks established progressive voters’ leagues, which conducted voter education classes to enable registrants to pass literacy tests and organized campaigns to encourage blacks to vote.130 Record numbers of Southern blacks attempted to vote in Democratic primaries during 1944, notwithstanding public statements by party officials that blacks would remain barred.131 Many of those blacks rejected at the polls filed affidavits recording their experiences with the NAACP and the Justice Department.132 The proliferation of lawsuits challenging continued exclusion of blacks from Democratic primaries also evidenced the greater assertiveness of Southern blacks during and after World War II. Blacks brought such suits in Georgia in 1944, Florida in 1944-45, and 126. On Smith’s salience, see Letter from Fred James to NAACP (Apr. 11, 1944), microformed on NAACP Papers, pt. IV, reel 6, frs. 845-47; Letter from Houston Dutton to NAACP (Aug. 10, 1944), id. pt. IV, reel 8, frs. 396-97; Letter from Benjamin James Pittman to NAACP (July 2, 1946), id. pt. IV, reel 10, frs. 820-23; FAIRCLOUGH, supra note 105, at 89. 127. JOHN DITTMER, LOCAL PEOPLE: THE STRUGGLE FOR CIVIL RIGHTS IN MISSISSIPPI 19 (1994); FAIRCLOUGH, supra note 105, at 111; LAWSON, supra note 10, at 102; NORRELL, supra note 116, at 60-61. 128. NORRELL, supra note 116, at 61. 129. See, e.g., Letter from Legal Redress Committee of the Birmingham Branch of the NAACP to the Chairman of the Jefferson County Board of Registrars (June 29, 1944), microformed on NAACP Papers, pt. IV, reel 6, frs. 76-77 [hereinafter Legal Redress Committee]; Letter from Emory O. Jackson to Legal Redress and Registration Committees (Aug. 18, 1944), id. pt. IV, reel 6, frs. 83-84; unidentified press clipping (Feb. 13, 1945), id. pt. IV, reel 6, fr. 274; Letter from Arthur A. Madison to Thurgood Marshall (May 8, 1944), id. pt. IV, reel 6, frs. 325-26. 130. See, e.g., Flyer Encouraging Blacks to Register, supra note 116, at fr. 267; Statement by the Progressive Voters League of Fla. (June 20, 1945), microformed on NAACP Papers, pt. IV, reel 7, frs. 42-43; Newsletter from NAACP (May 4, 1944), id. pt. IV, reel 7, fr. 414; John H. McCray, The Progressive Democratic Party in South Carolina, S. FRONTIER (Aug. 1944), id. pt. IV, reel 9, frs. 397-399; BEN GREEN, BEFORE HIS TIME: THE UNTOLD STORY OF HARRY T. MOORE, AMERICA’S FIRST CIVIL RIGHTS MARTYR 54, 59 (1999); LAWSON, supra note 10, at 101-02, 126; SULLIVAN, supra note 69, at 170, 212. 131. See, e.g., Negroes Are Selected for Primary Vote Test, ATLANTA CONST. (July 1, 1944), microformed on NAACP Papers, pt. IV, reel 7, fr. 610; Letter from James M. Hinton to Thurgood Marshall, supra note 120, at 709-710; Letter from E.M. Cams (May 15, 1942), microformed on NAACP Papers, pt. IV, reel 10, fr. 721. 132. See, e.g., Mary Moore Affidavit (Feb. 9, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 120; Enna Pope Affidavit (Feb. 9, 1945), id. pt. IV, reel 9, fr. 121; Ida Rodgers Affidavit (Feb. 10, 1945), id. pt. IV, reel 9, fr. 122.

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South Carolina in 1947,133 and threatened many additional suits against recalcitrant party officials who continued to ignore Smith.134 Blacks in some Southern locales became so enthusiastic to sue that efforts by the NAACP’s national office to coordinate litigation strategy went for naught. Thurgood Marshall and the national legal staff preferred to defer civil damages suits until after the Justice Department had decided whether to bring criminal prosecutions for violations of Smith.135 Yet before the national office could communicate its preferences, the branch in Columbus, Georgia, already had proceeded too far down the litigation path to change course. The branch president explained to the NAACP that “the people demanded that we continue the case.”136 The branch in Jackson, Mississippi, likewise showed reluctance to accede to the national office’s preference for postponing civil litigation, because many members “are becoming impatient . . . and we are anxious to try to do something.”137 Six months later, the branch president reminded Marshall that members “are very anxious to go to the courts with the case.”138 Blacks seeking to vote in the South Carolina Democratic primary in 1946 similarly were “expecting great things and are looking for a suit.”139 Blacks responded to Smith by initiating another sort of litigation as well. Because Smith (theoretically) had opened Democratic primaries to blacks, their right to vote finally had acquired some practical value in the one-party South. Southern blacks now demanded that they be registered to vote without regard to race and sued registrars who continued to discriminate. By the second half of 1945, blacks had brought such suits against registrars in Birmingham and Tuskegee, Alabama; Jacksonville and Titusville, Florida; St. John the Baptist

133. See King v. Chapman, 62 F. Supp. 639 (M.D. Ga. 1945), aff’d, 154 F.2d 460 (5th Cir. 1946); White Primary Attacked in Legal Action Here, ATLANTA CONST. (June 14, 1945), microformed on NAACP Papers, pt. IV, reel 7, fr. 676 (noting Jackson v. Suttles, filed in federal court in Atlanta); Democratic Vote of Negroes Upheld, supra note 71, at 24 (reporting a Florida Supreme Court decision and noting “several” similar suits in various Florida counties). 134. See, e.g., Letter from Daniel E. Byrd to H.J. Levy (Oct. 20, 1947), microformed on NAACP Papers, pt. IV, reel 8, frs. 514-15; Letter from Donald Jones to Thurgood Marshall (Oct. 22, 1947), id. pt. IV, reel 8, fr. 526. 135. See, e.g., Letter from Thurgood Marshall to Arthur D. Shores (May 5, 1944), id. pt. IV, reel 6, fr. 70; Letter from Thurgood Marshall to Edward D. Davis (May 2, 1944), id. pt. IV, reel 6, fr. 851. 136. Letter from W.M. Thomas to Thurgood Marshall (Aug. 28, 1944), id. pt. IV, reel 8, fr. 90. 137. Letter from J. Wesley Dixon to Thurgood Marshall (Aug. 28, 1944), id. pt. IV, reel 7, fr. 420. 138. Letter from Carsie A. Hall to Thurgood Marshall (Feb. 16, 1945), id. pt. IV, reel 9, fr. 8. 139. Letter from Harold R. Boulware to Thurgood Marshall (July 5, 1946), id. pt. IV, reel 10, frs. 825-27; see also Letter from James M. Hinton to Thurgood Marshall (Dec. 21, 1945), id. pt. IV, reel 10, fr. 807.

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Parish, Louisiana; and Atlanta.140 Many more blacks besieged registration boards with letters threatening lawsuits if discriminatory registration practices continued.141 When the registrar in Lake Charles, Louisiana, denied enrollment to black applicants through a variety of unlawful stratagems, they consulted a lawyer who promptly telephoned the registrar to threaten him with legal action.142 Louisiana blacks were “bursting with anxiety to knock out” discriminatory registration practices.143 This propensity toward litigation partly was attributable to the greater black militancy spawned by World War II. Yet two other developments traceable mainly to the war also facilitated broader litigation: the spread of NAACP branches into more remote parts of the South and the improved economic status of blacks generally.144 NAACP membership grew from roughly 50,000 in 1940 to 450,000 in 1946, and the number of branches rose from 355 to 1,073.145 In one of the region’s most racially recalcitrant states, South Carolina, NAACP membership grew from roughly 800 in 1939 to 14,000 in 1948.146 More NAACP branches meant that more Southern communities were able to support litigation against defiant public and party officials. NAACP branches communicated valuable information regarding local voting practices to one another, often through the national office or the state conference of branches.147 Blacks in one community became more determined to vote after discovering that blacks elsewhere in their state had become enfranchised. Increased NAACP membership also translated into a larger legal budget, which meant that the national office finally could hire several lawyers to supplement Thurgood Marshall’s heroic efforts. In the early 1940s, the New York office often had been too swamped to provide much assistance 140. See Hall v. Nagel, 154 F.2d 931 (5th Cir. 1946); Mitchell v. Wright, 154 F.2d 924 (5th Cir. 1946); Along the NAACP Battlefront, 52 THE CRISIS 231 (Aug. 1945); NAACP Files New Vote Registration Case in Alabama (June 21, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 151; Letter from Harry T. Moore to Thurgood Marshall (Apr. 23, 1946), id. pt. IV, reel 7, fr. 365; Letter from Thurgood Marshall to Francis J. Biddle (Oct. 3, 1944), id. pt. IV, reel 8, frs. 433-34. 141. See, e.g., Legal Redress Committee, supra note 129, at frs. 76-77; Letter from E.K. McIlrath to Jacksonville City Commissioners (May 3, 1945), microformed on NAACP Papers, pt. IV, reel 7, frs. 22-23; Letter from Daniel E. Byrd to Jackson Parish Registrar of Voters (Oct. 21, 1947), id. pt. IV, reel 8, frs. 518-19. 142. A.P. Tureaud memorandum on Registrars’ Practices in Various La. Parishes (Sept. 1, 1944), id. pt. IV, reel 8, frs. 407-10 [hereinafter Tureaud memorandum]. 143. Id. at fr. 410. 144. On the spread of NAACP branches, see Editorial, 5 Million Voters by 1950—A Laudable Objective, SHREVEPORT SUN (Apr. 30, 1949), microformed on NAACP Papers, pt. IV, reel 7, fr. 563. 145. RICHARD M. DALFIUME, DESEGREGATION OF THE U.S. ARMED FORCES: FIGHTING ON TWO FRONTS, 1939-53, at 123 (1969). 146. BARTLEY, supra note 102, at 29. 147. See, e.g., Letter from William Henry Samuel to NAACP (Sept. 7, 1948), microformed on NAACP Papers, pt. IV, reel 8, fr. 600.

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to Southern branches in litigating voting cases.148 After the war, an expanded legal staff was better able to provide advice and actual lawyering in support of the voting rights campaign. Larger branch memberships and more prosperous members translated into more money available to hire lawyers. The president of the Shreveport branch, seeking advice from the national office about how best to compel registrars to enroll blacks, announced that his branch was “ready with finances for anything.”149 The branch in Jackson, Mississippi, eager to litigate against continuing exclusion of blacks from Democratic primaries, assured the national office of its ability to finance the litigation by itself.150 In addition, more Southern white lawyers were now willing to take voting rights cases, given diminishing resistance among whites to black suffrage.151 More black lawyers also practiced in the South by the mid-1940s, which proved helpful whenever doubts remained as to the willingness of particular white lawyers to exert themselves sufficiently on behalf of black suffrage.152 The threat of litigation challenging the discriminatory administration of voter registration requirements or the exclusion of blacks from Democratic primaries provided public and party officials with a direct incentive to comply with the Constitution. While these officials overwhelmingly preferred that blacks not vote, they did not wish to incur personal liability for violating black voting rights. With threats of litigation flying from all directions, these officials began to comply 148. On Marshall’s overextension in the early 1940s and how this interfered with voting rights activity in the South, see Letter from Norman Lacey to Walter White (May 26, 1940), id. pt. IV, reel 7, frs. 121-25 (pleading with the NAACP to “do something tangible” and noting that “it is very necessary that the ass[ociatio]n does something in Tampa for we are on the spot”); Letter from D.H. Malloy to the NAACP (Nov. 22, 1941), id. pt. IV, reel 7, frs. 177-78 (complaining that the Tampa branch has kept the national office informed of its local white primary case, but its communications have been consistently ignored); Letter from Frank D. Reeves to E. Norman Lacey (Nov. 26, 1941), id. pt. IV, reel 7, fr. 176 (apologizing to Lacey for the national office’s failure to respond promptly to his previous letters and explaining that the national office has only a small staff and that Thurgood Marshall frequently is out of the office in connection with various NAACP obligations); Letter from J.L. Leflore to Walter White (Nov. 29, 1941), id. pt. IV, reel 7, frs. 179-82 (reiterating the complaints of the Tampa Branch). 149. Letter from Donald Jones to Thurgood Marshall (Dec. 10, 1947), id. pt. IV, reel 8, fr. 544 (reporting statement of branch president Williams). 150. Letter from Carsie A. Hall to Thurgood Marshall, supra note 138, at fr. 8. 151. See, e.g., Letter from Houston Dutton to Thurgood Marshall (Sept. 28, 1944), microformed on NAACP Papers, pt. IV, reel 8, frs. 418-19. For the difficulty in securing white lawyers at an earlier date, see Letter from McPherson to NAACP (Nov. 9, 1920), id. pt. IV, reel 1, frs. 445-46 (noting the branch’s “inability to secure the services of the white lawyers to look after our interest,” which suggests “a mutual understanding of some kind” between those lawyers and the public officials resisting black voter registration). 152. On new black lawyers, see Letter from Carsie A. Hall to Thurgood Marshall (Aug. 27, 1945), id. pt. IV, reel 9, fr. 13; FAIRCLOUGH, supra note 105, at 134. For suspicion of white lawyers, see Letter from Carsie A. Hall to Thurgood Marshall, supra; Letter from Louis Thompson to Thurgood Marshall (Dec. 23, 1944), microformed on NAACP Papers, pt. IV, reel 9, fr. 257.

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with the law. In Spalding County, Georgia, local officials had little choice but to register black voters without discrimination, after Federal Judge Frank Scarlett ordered them to do so and then held the case open pending further complaint.153 Local registration officials in several South Carolina counties, fearing federal court litigation, defied orders from the state Democratic Party by registering black voters.154 After Judge Waring in 1947 and 1948 invalidated efforts by the South Carolina Democratic Party to evade Smith and threatened to hold party officials in contempt, 35,000 blacks were enrolled on party membership books.155 In Washington Parish, Louisiana, blacks had been denied registration until they formed an NAACP branch and filed suit before a sympathetic federal judge, J. Skelly Wright, who enjoined the registrar from further race discrimination.156 As a result of this litigation, Washington Parish registered its first black voter in 1950. That precedent inspired federal lawsuits in several other Louisiana parishes, which induced registrars to enroll blacks rather than risk personal liability.157 By the mid-1940s, damages suits were not all that recalcitrant officials had to fear; criminal prosecution by the Federal Government now became a distinct possibility. Southern NAACP branch officials constantly reminded public and party officers that willful violations of black voting rights qualified for federal prosecution under civil rights statutes.158 Indeed, the Justice Department already had prosecuted a few registrars for discriminatory practices—one in North Carolina in the mid-1930s and two others in the Carolinas in the early 1940s.159 One important consequence of burgeoning black 153. Judge Orders Spalding to List Negroes, ATLANTA CONST. (Aug. 20, 1948), microformed on NAACP Papers, pt. IV, reel 6, fr. 218. 154. Letter from Harold R. Boulware to Thurgood Marshall, supra note 139, at fr. 825; Harold R. Boulware memorandum on Problem Presented by South Carolina: Brown v. Baskin (June 21, 1949), microformed on NAACP Papers, pt. IV, reel 9, frs. 476, 481 [hereinafter Boulware memorandum]. 155. Along the N.A.A.C.P. Battlefront, supra note 104. 156. FAIRCLOUGH, supra note 105, at 133-34; Dean v. Thomas, 93 F. Supp. 129 (E.D. La. 1950). 157. See, e.g., Byrd v. Brice, 104 F. Supp. 442 (W.D. La. 1952). See also Letter from Joseph A. Berry & Daniel L. Beasley to Walter White (July 20, 1948), microformed on NAACP Papers, pt. IV, reel 6, frs. 208-14; Letter from Charles A. Chandler to Charles H. Houston (Apr. 8, 1937), id. pt. IV, reel 3, fr. 203 (Muskogee County, Okla.). Marshall urged branches to bring more lawsuits. See, e.g., Letter from Thurgood Marshall to Arthur D. Shores (Apr. 18, 1945), id. pt. IV, reel 6, fr. 136. 158. See, e.g., Letter from Daniel E. Byrd to H.J. Levy, supra note 134, at frs. 514-15; Letter from Chair of Alexandria, La., Branch Legal Committee to NAACP (Sept. 30, 1944), microformed on NAACP Papers, pt. IV, reel 8, fr. 424; Letter from G.M. Johnson to Nora Windon (Aug. 1948), id. pt. IV, reel 8, frs. 592-93. 159. For the successful North Carolina prosecution in 1936, see Letter from Thurgood Marshall to Tom Clark (Sept. 11, 1944), microformed on NAACP Papers, pt. IV, reel 9, frs. 236-37. For the unsuccessful North Carolina prosecution in 1942, see Letter from Thurgood Marshall to W. R. Saxon (May 14, 1942), id. pt. IV, reel 9, fr. 180. For the unsuccess-

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political power was that Justice Department officials became more solicitous of the voting rights of Southern blacks. The Department repeatedly invited Thurgood Marshall to Washington, D.C., to discuss voting issues, and assured Southern NAACP officials that their voting rights complaints were receiving thorough investigation.160 By way of contrast, the Justice Department in the mid-1930s generally had manifested indifference toward the voting rights protests of Southern blacks. Back then, United States attorneys merely went through the motions of investigating complaints and were as likely to intimidate black victims as to prosecute their cases.161 Immediately after Smith, Thurgood Marshall wrote to Attorney General Francis Biddle, requesting that the government instruct United States attorneys to prosecute party officials who continued to exclude blacks from primary elections.162 NAACP lawyers bombarded Justice Department officials with affidavits from Southern blacks attesting to persistent violations of black voting rights and demands for criminal prosecutions.163 One NAACP officer in Birmingham, Alabama, bragged that he was sending “a bag of evidence almost daily” to the Justice Department.164 By the fall of 1944, Marshall was in regular conference with Department lawyers, including the Attorney General, negotiating over when and where the government would ful South Carolina prosecution, see Three Men Charged with Civil Rights Violations, GREENVILLE NEWS (S.C.) (Nov. 27, 1941), id. pt. IV, reel 10, fr. 633; Letter from Lottie P. Gaffney to Thurgood Marshall (Feb. 28, 1942), id. pt. IV, reel 10, frs. 644-45. 160. See, e.g., Letter from Francis J. Biddle to Thurgood Marshall (Aug. 8, 1944), id. pt. IV, reel 7, fr. 418; Letter from Francis J. Biddle to C.A. Scott (Dec. 1, 1944), id. pt. IV, reel 10, frs. 628-29; Letter from Thurgood Marshall to Tom Clark (May 9, 1944), id. pt. IV, reel 6, fr. 327. 161. See, e.g., Letter from Walter White to Homer S. Cummings (Aug. 30, 1935), id. pt. IV, reel 2, frs. 220-21 (calling the Department’s investigation of NAACP allegations of discriminatory voter registration in Wilkesboro, North Carolina, “a flagrant whitewash” and noting that the one federal agent who did interview complainants “intimidate[d] and threaten[ed]” them); Letter from Charles H. Houston to the U.S. Attorney General (Oct. 16, 1935), id. pt. IV, reel 2, frs. 231-32 (calling the Department’s performance with regard to these allegations of discriminatory voter registration in North Carolina “a sad commentary” and asking whether the Department is “an adjunct of the Democratic [P]arty”); Letter from Charles H. Houston to the U.S. Attorney General (Nov. 18, 1935), id. pt. IV, reel 2, fr. 259 (asking the Department to appoint a Special Prosecutor because the U.S. attorney in North Carolina refused “to make any real, serious, honest attempt to investigate” allegations of discriminatory voter registration); see also Letter from John Marshall to Robert W. Bagnall (Oct. 23, 1928), id. pt. IV, reel 2, fr. 347 (noting that “[o]fficials refusing to register eligible voters may be punished under State laws” and emphasizing the “limited” scope of federal election laws) (emphasis added). 162. See Supreme Court Rules Out White Primaries, supra note 111, at 164-65; Time Bomb, supra note 111, at 20-21; LAWSON, supra note 10, at 47. 163. See, e.g., Letter from Milton R. Konvitz to Victor Rotnem (Apr. 17, 1944), microformed on NAACP Papers, pt. IV, reel 6, fr. 309; Letter from Thurgood Marshall to Francis J. Biddle (July 5, 1944), id. pt. IV, reel 8, frs. 133-34; Letter from Thurgood Marshall to Francis J. Biddle (July 19, 1944), id. pt. IV, reel 8, frs. 138-40. 164. Letter from Emory O. Jackson to Thurgood Marshall (Feb. 16, 1945), id. pt. IV, reel 6, fr. 131.

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commence prosecutions.165 In early 1945, the New York Times reported that Department officials were contemplating immediate prosecutions in three Southern states.166 A year later, the Department issued a policy statement declaring that it would prosecute any public or party official attempting to interfere with black voting rights.167 Notwithstanding its bold pronouncements, the Justice Department remained reluctant to prosecute voting rights cases. However, it did launch investigations and dispatch FBI agents to Southern communities to gather information, thus offering food for thought to Southern officials contemplating interference with black voting rights. Birmingham lawyer Arthur Shores reported to Marshall that a personal visit from the United States Attorney to the local board of registrars “had a very wholesome effect on helping us get . . . a large number [of black voters] registered.”168 Harry Moore, founder of the Florida Progressive Voters’ League, believed that a federal investigation of the incident in Greensboro, Florida, in which two black brothers were attacked and then run out of town in retaliation for their voter registration activities would have “a healthy effect in all of those counties, where Negroes have been kept from the polls through intimidation.”169 One of these brothers later reported that the FBI’s appearance in Greensboro had the “crack[er]s . . . looking very sick . . . .”170 Moreover, a heightened federal law enforcement presence in the South, even if it did not result in actual prosecutions, provided some modicum of security to Southern blacks who risked their physical safety by challenging the political status quo. Donald Jones, Southwest Regional Secretary of the NAACP, warned the chairman of the Caddo Parish (Louisiana) Democratic Executive Committee that he risked criminal prosecution for supporting the continued exclusion of blacks from party primaries. Jones then quickly reminded Thurgood Marshall to mention this case to the Justice Department, because “I threatened the gentleman and don’t want to be caught with my breeches at half mast.”171 165. See, e.g., Letter from Thurgood Marshall to C.A. Scott (Oct. 27, 1944), id. pt. IV, reel 8, fr. 104; Letter from Thurgood Marshall to John L. LeFlore (Nov. 23, 1945), id. pt. IV, reel 6, fr. 548. 166. Arnall to See Biddle on Negro Franchise, N.Y. TIMES (Mar. 14, 1945), id. pt. IV, reel 8, fr. 141. 167. Justice Dept. to Follow Ruling in Election Case, CHARLESTON EVENING POST (S.C.) (Apr. 6, 1946), id. pt. IV, reel 7, fr. 430. 168. Letter from Arthur Shores to Thurgood Marshall (Sept. 16, 1939), id. pt. IV, reel 3, fr. 182. 169. Letter from Harry T. Moore to Thurgood Marshall (July 12, 1948), id. pt. IV, reel 6, fr. 791. 170. Letter from J.T. Smith to NAACP (Aug. 20, 1948), id. pt. IV, reel 6, fr. 798. 171. Letter from Donald Jones to Thurgood Marshall (Oct. 22, 1947), id. pt. IV, reel 8, fr. 526; see also Letter from Thurgood Marshall to S.M. Coleman (June 29, 1950), id. pt. IV,

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Even apart from the greater presence of the Federal Government, the South was a safer place for blacks by the mid-1940s than it had been even a decade earlier—a change in circumstance that surely contributed to the greater aggressiveness with which blacks demanded their constitutional rights. It is important, however, not to overstate the point. Southern whites lynched blacks with somewhat greater frequency during and after the War than immediately before,172 and Thurgood Marshall himself barely escaped with his life while defending criminal cases arising from the Columbia, Tennessee, race riot in 1946.173 Yet the South had become a relatively safer place for blacks, owing to the same forces that were gradually eradicating lynchings—urbanization, industrialization, better education, less insularity, and the threat of federal anti-lynching legislation and criminal prosecution for civil rights violations.174 The greater physical security enjoyed by Southern blacks was vitally important to the voting rights campaign launched after Smith, as well as to the direct action protests of the early 1960s. Some quick comparisons between interwar and postwar Southern social conditions illustrates this point. In Jacksonville, Florida, a Ku Klux Klan (KKK) demonstration on election eve, 1920, drew a thousand participants and deterred nearly all blacks in the city from voting.175 That same year, as many as fifty blacks died in election riots in Ocoee, Florida.176 Fearing for their safety, black witnesses to the riot declined to testify before an investigating committee in Washington, D.C. In 1932, police officers in Shreveport, Louisiana, armed with machine guns, suppressed an effort by local blacks to organize a voters league. City authorities warned that the streets would be drenched with blood before they would permit blacks to vote, and a reel 8, fr. 613 (noting that Marshall had brought to the attention of the Justice Department the registration difficulties of blacks in Benton, Louisiana). 172. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 19091950, at 6-7 tbl.2 (1980). 173. TUSHNET, supra note 91, at 54-55. On the Columbia race riot, see GAIL WILLIAMS O’BRIEN, THE COLOR OF THE LAW: RACE, VIOLENCE, AND JUSTICE IN THE POST-WORLD WAR II SOUTH (1999). 174. For various explanations for the decline in the number of lynchings, see, for example, W. FITZHUGH BRUNDAGE, LYNCHING IN THE NEW SOUTH: GEORGIA AND VIRGINIA, 1880-1930, at 209, 238 (1993); MYRDAL, supra note 65, at 565; GEORGE B. TINDALL, THE EMERGENCE OF THE NEW SOUTH 1913-1945, at 174, 554 (1967); Kathleen Atkinson Miller, The Ladies and the Lynchers: A Look at the Association of Southern Women for the Prevention of Lynching, 17 S. STUD. 221, 236-37 (1978); Todd E. Lewis, Mob Justice in the “American Congo”: “Judge Lynch” in Arkansas During the Decade after World War I, 52 ARK. HIST. Q. 156 (1993). 175. Letter from James Floyd to Walter White (Dec. 7, 1920), microformed on NAACP Papers, pt. IV, reel 1, fr. 936; Letter from Alexander Ackerman to Sen. William C. Kenyon (Nov. 5, 1920), id. pt. IV, reel 1, frs. 925-27. 176. Letter from Alexander Ackerman to Sen. William C. Kenyon, supra note 175, at frs. 925-27. For a recent account of the Ocoee race riot, see Michael McLeod & Joy Wallace Dickinson, Ocoee Race Riot Scars Generations, ORLANDO SENT., Feb. 5, 2001, at A1.

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black newspaper editor who had helped organize the campaign was forced to leave town under threat to his life.177 Similarly, a black man who challenged Mississippi’s white primary in 1927 had his life threatened and then was run out of town.178 Whites lynched an average of just under fifty Southern blacks annually in the first half of the 1920s and just under twenty in the first half of the 1930s.179 Much had changed by the mid-1940s. The KKK was in a weaker position from which to intimidate black voters because it was busy defending itself from state efforts to revoke its charter and federal efforts to prosecute its leaders for tax evasion.180 Hundreds of blacks flocked to the Senate committee hearings investigating Senator Theodore Bilbo’s incitement of whites to violence against blacks in Mississippi’s 1946 senatorial primary—hearings that were held not in the relative safety of Washington, D.C., but in Jackson, Mississippi.181 In postwar Louisiana, tens of thousands of blacks registered to vote, even in some rural parishes, with the active support of Governor Long and under the protective eye of the federal courts and the Justice Department.182 In the mid-1940s, blacks across the Deep South filed lawsuits challenging denials of voting rights without encountering significant threats of physical violence, although they continued to suffer economic retaliation.183 While the annual number of Southern lynchings had increased briefly during the immediate postwar years, it quickly declined again to near zero by the late 1940s.184 The Federal Government aggressively investigated and prosecuted the few lynchings that did occur during and after the War.185 Blacks attempting to vote in the rural Deep South in the mid1940s were still likely to face physical intimidation, but far more often in the form of a beating than a lynching.186 Of course, one does

177. Albert White, Shreveport Peace Officers Dare Negro Democrats to Hold Meeting; Display Machine Guns and Rifles, HOUSTON DEFENDER (July 23, 1932), microformed on NAACP Papers, pt. IV, reel 4, fr. 114. 178. Letter from Mack Holiman to NAACP (Dec. 3, 1927), id. pt. IV, reel 2, frs. 103-04; Letter from James Weldon Johnson to Nathaniel B. Bond (Dec. 30, 1927), id. pt. IV, reel 2, fr. 111; Letter from S.R. Redmond to James Weldon Johnson (Jan. 5, 1928), id. pt. IV, reel 2, fr. 118. 179. ZANGRANDO, supra note 172, at 6-7 tbl.2. 180. See, e.g., Georgia on the Move, N.Y. POST (June 3, 1946) microformed on NAACP Papers, pt. IV, reel 8, fr. 175; see also John N. Popham, Dual Racial Stand Voted in Georgia, N.Y. TIMES, Feb. 18, 1951, at 48 (noting that the Georgia legislature, dominated by white supremacists, had adopted by a near-unanimous vote one of the strongest anti-KKK statutes in the South’s history). 181. On Bilbo, see infra notes 249-54 and accompanying text. 182. See supra note 105 and accompanying text. 183. See supra notes 133-34 & 140-41 and accompanying text. 184. ZANGRANDO, supra note 172, at 6-7 tbl.2. 185. See, e.g., DOMINIC J. CAPECI, JR., THE LYNCHING OF CLEO WRIGHT ch. 3 (1998). 186. For a black World War II veteran who was beaten for trying to vote, when the mob thought better of killing him, see LAWSON, supra note 10, at 107-08.

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not want to minimize this threat of physical violence. The postwar Deep South remained a dangerous place for blacks intent on exercising their constitutional rights, but the degree of danger had subsided somewhat, thereby enabling Southern blacks to demand their rights without ordinarily putting their lives on the line.187 Another important factor contributing to the momentous Southern black voter registration of the 1940s was the willingness of lower court judges to embrace generous interpretations of Smith and the Fifteenth Amendment. Again, the contrast with the 1930s is revealing. Black lawyers arguing the Texas white primary cases before the Fifth Circuit in the early 1930s faced “insult[ing]” judges who literally turned their backs on the lawyers during oral argument.188 In correspondence with the NAACP national office, these lawyers repeatedly doubted whether “Southern Judge[s]” ever would vindicate the voting rights claims of black litigants and wondered whether it was worth even bothering to show up for oral argument in the Fifth Circuit, since only a Supreme Court appeal held any promise of success.189 The voting rights decisions of Southern judges in the 1930s confirmed these doubts. Judges strained to find technicalities upon which to reject voting rights claims and manifested a willful blindness to the racially discriminatory administration of facially neutral voter qualifications.190 Postwar judges, by way of contrast, often proved more accommodating to blacks litigating voting rights issues. This conversion among lower court judges proved crucial to the success of Southern black voter registration because public and party officials contrived a multitude of evasive techniques to impede black suffrage after Smith. Repeated appeals to the Supreme Court were expensive, and the Justices lacked the resources to hear every case alleging evasion of earlier decisions. Thus the receptivity of lower court judges was critical to the effective implementation of Smith. As noted earlier, many Southern whites, with varying degrees of enthusiasm, were prepared to accept black suffrage by the mid1940s.191 Yet most Southern politicians and the public officers they 187. For an example of the greater physical security with which the NAACP operated in rural Louisiana by the 1940s, see FAIRCLOUGH, supra note 105, at 113. 188. Letter from Fred C. Knollenberg & Frank Cameron to NAACP (Nov. 17, 1930), microformed on NAACP Papers, pt. IV, reel 3, fr. 549. 189. Letter from Fred C. Knollenberg & Frank Cameron to Arthur B. Spingarn (Sept. 2, 1930), id. pt. IV, reel 3, frs. 527-28 (quotation); Letter from Fred C. Knollenberg & Frank Cameron to Nathan R. Margold (Nov. 13, 1930), id. pt. IV, reel 3, frs. 550-51; Letter from Arthur B. Spingarn to Walter White (Jan. 28, 1930), id. pt. IV, reel 3, fr. 452. 190. See, e.g., Lane v. Wilson, 98 F.2d 980 (10th Cir. 1938), rev’d, 307 U.S. 268 (1939); Trudeau v. Barnes, 65 F.2d 563 (5th Cir. 1933); Nixon v. Condon, 49 F.2d 1012 (5th Cir. 1931), rev’d, 286 U.S. 73 (1932). 191. See supra notes 111-24 and accompanying text.

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appointed were not. This is probably no great surprise. Politicians generally are unenthusiasiastic about electoral change, given their vested interest in preserving the system that elected them to office.192 Whatever their motives, however, Democratic politicians, party officials, and voter registrars throughout much of the South responded to Smith with defiance and evasion as they endeavored to prevent the Court from “revolutioniz[ing] our Southern customs and disrupt[ing] our peaceable existence.”193 In most Southern states, the Democratic Party continued to exclude blacks from primaries for at least a year or two after Smith.194 Sometimes, they embraced this position with open defiance.195 The chairman of the Mississippi Democratic Party Executive Committee, for example, declared that “the Supreme Court or no one else can control a Democratic primary in Mississippi.”196 In other states, however, party officials rightly noted that Smith did not necessarily invalidate all white primaries.197 The Court’s ruling partially relied on how Texas law regulated parties and their primaries; other states regulated parties and primaries differently. For example, while Texas law required parties to conduct primaries, Georgia law did not. Even more importantly, to the extent that Smith had turned on the fact of state regulation of political parties, it might be possible to avoid the decision entirely by repealing all statutes regulating parties. South Carolina did exactly this after Smith, and other states contemplated following suit, waiting to see how lower courts evaluated the constitutionality of South Carolina’s efforts.198 Lower courts generally refused to countenance such evasions. The Fifth Circuit affirmed a district court ruling rejecting proffered distinctions between Georgia’s white primary and the Texas variant in192. For general discussion of this sort of entrenchment problem and the powerful argument for activist judicial review to counteract it, see Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491 (1997); Samuel Issacharoff & Richard H. Pildes, Politics As Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998). 193. Editorial, 10 ALA. 1 (July 6, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 155. 194. See infra notes 214-17 and accompanying text. 195. See, e.g., Lewis Wood, High Court Rules Negroes Can Vote in Texas Primary, N.Y. TIMES, Apr. 4, 1944, at 1 (quoting defiant statements by several Southern Congressmen); see infra notes 228-34 and accompanying text. 196. Negroes Not Eligible for Primary, Duckworth Says (unidentified press clipping) (Apr. 4, 1944), microformed on NAACP Papers, pt. IV, reel 7, fr. 583. 197. For claims that Smith was distinguishable, see, for example, Georgians ‘Reaffirm’ ‘White Supremacy,’ N.Y. TIMES, June 8, 1944, at 38 (quoting resolution of subcommittee of Georgia Democratic State Executive Committee); see also Robert E. Cushman, The Texas “White Primary” Case—Smith v. Allwright, 30 CORNELL L.Q. 66, 75 (1944) (noting that the laws of Southern states governing primary elections vary and predicting that other cases will have to be appealed to the Supreme Court before the white primary is interred). 198. See supra notes 69-71 and accompanying text.

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validated in Smith.199 The Florida Supreme Court ruled similarly.200 Perhaps more significantly, Judge Waring sternly repudiated South Carolina’s effort to evade Smith by repealing all legal regulation of the Democratic Party, and the Fourth Circuit affirmed him.201 These decisions involved more than simple applications of Smith; they required extensions. The Fifth Circuit, for example, explicitly noted that Smith and Classic were not dispositive of the constitutionality of Georgia’s white primary because of relevant differences in the ways that Texas and Louisiana had regulated political parties. Yet that court nonetheless concluded that the Georgia Democratic Party’s exclusion of blacks violated the Constitution. Lower court judges more antagonistic toward black voting rights could have found ways to resolve these cases differently. Judge Waring, however, decided that “[i]t is time for South Carolina to rejoin the Union.”202 When party officials responded to Waring’s ruling by adopting a dual membership status based on race and a party loyalty oath designed to offend most prospective black members (including a requirement of swearing support for segregation), an enraged Waring enjoined these evasive efforts, and the Fourth Circuit again affirmed him.203 Some Southern states in the late 1940s adopted measures to obstruct black voter registration. With Democratic primaries now (theoretically) open to blacks, tougher registration procedures and requirements became a favored alternative method for impeding black suffrage. For example, Alabama voters enacted the Boswell amendment, requiring that registrants “understand and explain” a section of the United States Constitution, not just read it, and also understand “the duties and obligations of good citizenship.”204 Proponents of the amendment did not disguise their intention to confer broad discretion on registrars for the purpose of preserving white political supremacy. Georgia likewise adopted a tougher voter registration requirement after Smith, though the state tried to avoid the le-

199. King v. Chapman, 62 F. Supp. 639 (M.D. Ga. 1945), aff’d, 154 F.2d 460 (5th Cir. 1946). 200. Davis v. Florida ex rel. Cromwell, 23 So. 2d 85 (Fla. 1945). 201. Elmore v. Rice, 72 F. Supp. 516 (E.D.S.C. 1947), aff’d, 165 F.2d 387 (4th Cir. 1947). 202. Id. at 528. 203. Brown v. Baskin, 78 F. Supp. 933 (E.D.S.C. 1948), aff’d, 174 F.2d 391 (4th Cir. 1949). Mississippi also adopted such a loyalty oath. See Letter from T.B. Wilson to Walter White (July 14, 1947), microformed on NAACP Papers, pt. IV, reel 9, fr. 117; KEY, supra note 114, at 640-41; Earl M. Lewis, The Negro Voter in Mississippi, 26 J. NEGRO EDUC. 329, 341 (1957). 204. Editorial, supra note 193, at fr. 155; Anti-Poll Tax Solons Soften (unidentified and undated press clipping), microformed on NAACP Papers, pt. IV, reel 6, fr. 280; Mary Ellen Crane, Committee is Formed to Back Amendment 4 (unidentified and undated press clipping), id. pt. IV, reel 6, fr. 281; KEY, supra note 114, at 632-33 (quotations); LAWSON, supra note 10, at 90-93.

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gal pitfalls of the Boswell amendment by somewhat constraining the discretion delegated to registrars.205 With or without statutory authorization, Southern voter registrars employed a wide variety of stratagems for impeding black suffrage.206 Sometimes, registration boards simply closed to prevent blacks from registering. Other times, registrars enrolled voters at undisclosed times in secret locations (contrary to statutory requirements). White registrants discovered through word of mouth where and when to show up, while blacks were kept in the dark. When blacks did locate registrars, they often were forced to wait in line for hours, so that only a few at a time could enroll. Registrars required blacks to complete their own registration forms and then flunked them for trivial errors, while registrars themselves filled out the forms for whites. Registrars asked blacks, but not whites, to recite from memory the entire United States Constitution or to answer impossible (and obviously insulting) questions, such as “how many bubbles are in a bar of soap?” Registrars required blacks, but not whites, to produce already registered voters—and sometimes only whites would suffice—to vouch for information on their application forms. Some registrars did not bother even to indulge in any pretense of legality; they simply told blacks that they would not be registered regardless of their qualifications. Individual registrars often acted as a law unto themselves, ignoring even specific instructions from state officials to treat black registrants fairly.207 Thus, registration practices often varied dramatically between different parts of a state or even a city. For the first time in Southern history, lower courts began ruling such behavior unconstitutional. A three-judge district court consist205. See Letter from Thurgood Marshall to Col. A.T. Walden (Mar. 17, 1949), microformed on NAACP Papers, pt. IV, reel 8, fr. 240; Letter from Thurgood Marshall to James M. Nabrit (Apr. 13, 1949), id. pt. IV, reel 8, fr. 241. The Georgia law was sustained by the state supreme court in Franklin v. Harper, 205 Ga. 79 (1949). 206. For examples of the various ruses described in this paragraph, see LAWSON, supra note 10, at 86-115; NORRELL, supra note 116, at 36-40, 44-46, 59-78; Negro Disenfranchisement, supra note 68, at 90-97; Report of the Legislative Committee of the Tuskegee Branch of the NAACP (July 20, 1948), microformed on NAACP Papers, pt. IV, reel 6, frs. 208-14; Letter from Joseph A. Berry to Roy Wilkins and Thurgood Marshall (Dec. 10, 1948), id. pt. IV, reel 8, frs. 357-65; Tureaud memorandum, supra note 142, at frs. 407-09; Along the N.A.A.C.P. Battlefront, 59 THE CRISIS 378 (June-July 1952). For some specific examples, see Letter from E.D. Nixon to Walter White (Aug. 11, 1943), microformed on NAACP Papers, pt. IV, reel 6, fr. 42; Affidavit of a group of veterans (June 25, 1946), id. pt. IV, reel 9, fr. 37; Letter from Group denied registration in Rutherfordton, North Carolina, to Walter White (Oct. 31, 1944), id. pt. IV, reel 9, fr. 247; McCray, supra note 130, at fr. 397; Boulware memorandum, supra note 154, at fr. 481. 207. See, e.g., Letter from Harry T. Moore to Thurgood Marshall (Dec. 15, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 993; Letter from Harry T. Moore to Thurgood Marshall (May 30, 1946), id. pt. IV, reel 6, fr. 1007; Letter from Emory O. Jackson to Thurgood Marshall (Dec. 13, 1949), id. pt. IV, reel 6, frs. 253-54.

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ing entirely of Southerners invalidated the Boswell amendment on the ground that it delegated to registrars unconstitutionally broad discretion, which had been administered in a racially discriminatory fashion.208 The court also noted the obviously discriminatory purpose that had animated the amendment.209 The court’s refusal to countenance a broad delegation, as well as its willingness to investigate legislative motive, were in tension with the Supreme Court’s earlier, more lenient approach toward black disfranchisement.210 Other Southern judges likewise began to enjoin registrars from applying voter registration requirements and procedures in racially discriminatory ways.211 These courts suspended their customary presumptions that public officials had discharged their legal duties in good faith. When registrars in approximately thirty Georgia counties began purging black voters from the books at the behest of former Governor Eugene Talmadge, a federal judge quickly enjoined them from doing so.212 On a somewhat different issue, the Arkansas Supreme Court invalidated a state law designed to meet the challenge of Smith by separating state and federal elections (both primary and general), barring race discrimination only in the federal ones, and therefore implicitly allowing continued exclusion of blacks from state primaries.213 The willingness of lower court judges to follow the spirit rather than the letter of Smith and to interpret the Fifteenth Amendment to bar discriminatory voter registration practices that had been tolerated for decades was a necessary condition for the postwar surge in Southern black voter registration. Democratic officials in Georgia and Florida did not allow blacks to participate in primary elections 208. Davis v. Schnell, 81 F. Supp. 872, 877-78 (S.D. Ala. 1949), aff’d, 336 U.S. 933 (1949). 209. Id. at 879-80. 210. Giles v. Harris, 189 U.S. 475 (1903); Williams v. Mississippi, 170 U.S. 213 (1898). For discussion of these cases, see Klarman, Plessy, supra note 15, at 361-66; see also Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 CONST. COMM. 295 (2000). For the tension between Davis and Williams, see Negro Disenfranchisement, supra note 68, at 95; see also Francis W. Collopy, Comment, 24 NOTRE DAME LAW. 571, 573 (1949) (noting that Davis is inconsistent with the “strict formalism” of earlier decisions). 211. See, e.g., Byrd v. Brice, 104 F. Supp. 442 (W.D. La. 1952); Dean v. Thomas, 93 F. Supp. 129 (E.D. La. 1950); Mitchell v. Wright, 154 F.2d 924 (5th Cir. 1946), cert. denied, 329 U.S. 733 (1946); Patterson v. Bethea, noted in Letter from Thurgood Marshall to Francis J. Biddle (Oct. 3, 1944), microformed on NAACP Papers, pt. IV, reel 8, frs. 433-34; Florida ex rel. Graham v. Bowden, No. 16237-L (Fla. Cir. Ct. 1945), id. pt. IV, reel 7, frs. 1314. 212. See LAWSON, supra note 10, at 89; SULLIVAN, supra note 69, at 213; Negroes in Georgia Charge Vote Purge, N.Y. TIMES, July 12, 1946, at 15; Negroes Vote Purge Halted in Georgia, N.Y. TIMES, July 14, 1946, at 29; Memorandum from Robert L. Carter (July 10, 1946), microformed on NAACP Papers, pt. IV, reel 7, fr. 725. 213. Adams v. Whittaker, 195 S.W.2d 634 (Ark. 1946). It is not clear why the Arkansas Legislature believed that Smith applied only to federal primaries, since the Fifteenth Amendment does not distinguish between state and federal elections.

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until lower courts had ruled Smith applicable to those states’ primaries.214 Blacks did not participate in significant numbers in South Carolina primaries until Judge Waring’s rulings in Elmore v. Rice and Brown v. Baskin. Waring threatened to hold party officials in contempt if they continued to bar black participation after he had made it clear, “once and for all, . . . that they [would] be required to obey and carry out the orders of this court, not only in the technical respects but in the true spirit and meaning of the same.”215 After Waring’s rulings, 35,000 South Carolina blacks turned out to vote in Democratic primaries during the summer of 1948.216 In Louisiana, two federal court decisions from the early 1950s, enjoining registrars from discriminatory applications of voter registration requirements, opened the floodgates to a massive black voter registration.217 These lower court rulings, to repeat, were not ineluctable applications of existing precedent. The judges who decided these cases chose to extend Smith and to go beyond existing interpretations of the Fifteenth Amendment. As one contemporary commentator observed, these decisions adopted “broad and discerning” rather than “narrow and literal” interpretations of black voting rights, nullifying the repeated efforts of white Southerners to “find the magic combination of ambiguous wording, legalisms, and technicalities which will allow them to ‘make possible the impossible.’”218 These judges took seriously the Supreme Court’s admonitions in Classic that the Constitution is “not to be read with such stultifying narrowness”219 and in Lane v. Wilson that the Fifteenth Amendment “nullifies sophisticated as well as simple-minded modes of discrimination.”220 Moreover, not all of these lower court judges held the relatively progressive racial views of Judge Waring or Judge Wright (and Southern judges with such progressive racial views simply did not

214. See, e.g., Letter to Walter White (Feb. 16, 1946), microformed on NAACP Papers, pt. IV, reel 7, fr. 711 (Georgia); HINE, supra note 10, at 239; Letter from Attorney General Watson to Harry T. Moore (Feb. 19, 1946), microformed on NAACP Papers, pt. IV, reel 6, fr. 900 (Florida). 215. Brown v. Baskin, 78 F. Supp. 933, 942 (E.D.S.C. 1948), aff’d, 174 F.2d 391 (4th Cir. 1949). 216. Memorandum from C.B. Motley to Miss Karin (Apr. 7, 1949), microformed on NAACP Papers, pt. IV, reel 9, frs. 465-66; Boulware memorandum, supra note 154, at fr. 482; LAWSON, supra note 10, at 54. 217. FAIRCLOUGH, supra note 105, at 133-34. 218. The Right to Vote, supra note 82, at frs. 554, 557. 219. United States v. Classic, 313 U.S. 299, 320 (1941). 220. Lane v. Wilson, 307 U.S. 268, 275 (1939). Lane invalidated, nearly a quarter century after the fact, Oklahoma’s effort to grandfather the grandfather clause that the Supreme Court had invalidated in Guinn v. Oklahoma, 238 U.S. 347 (1915). On Guinn, see supra note 95.

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exist prior to World War II).221 By the late 1940s, even some less racially enlightened jurists were willing to interpret the law in ways that facilitated black suffrage. One Florida circuit judge who invalidated that state’s white primary after Smith was a “cracker judge,” according to local NAACP officials.222 Such judges almost certainly would not have interpreted an anti-segregation ruling of the Supreme Court with equal latitude, as their post-Brown behavior would confirm.223 But apparently, many Southern white judges shared the hierarchy of racial preferences embraced by the broader white community, which meant that they were far less resistant to black political participation than to school desegregation.224 None of these conditions that combined to make Smith a momentous decision—greater white receptiveness to black voting; increased black assertiveness; broader NAACP presence; augmented threat of federal prosecution for voting rights violations; growing physical security of Southern blacks; and lower courts’ willingness to support expansion of black suffrage—was itself simply a product of Smith. Thus, while the Court’s intervention may have been an indispensable factor in mobilizing the huge black voter registration of the 1940s, Smith probably would not have been very significant in the absence of these supportive conditions. Thus far we have considered the contributions of Smith— combined with certain favorable background social and political conditions—to Southern black voter registration in the 1940s. Two other points regarding Smith’s impact warrant discussion. First, Smith affected the behavior of Southern whites as well as blacks. While the Court’s ruling apparently inspired many Southern blacks to attempt to exercise their suffrage rights, it also mobilized Southern whites to

221. On Waring, see TINSLEY E. YARBROUGH, A PASSION FOR JUSTICE: J. WATIES WARING AND CIVIL RIGHTS (1987). On Wright, see, for example, JACK BASS, UNLIKELY HEROES 112-35 (1981). 222. See Letter from Theodore Redding to Edward R. Dudley (Apr. 3, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 974. 223. Compare Brown v. Baskin, 174 F.2d 391 (4th Cir. 1949) (Parker, J.) (extending Smith v. Allwright), with Briggs v. Elliot, 132 F. Supp. 776 (E.D.S.C. 1955) (Parker, J.) (narrowly construing Brown v. Board of Education). This was the same Judge Parker whose nomination to the Supreme Court was defeated in 1930, partially because of NAACP opposition, which was grounded in statements Parker had made opposing black suffrage in his gubernatorial campaign in North Carolina a decade earlier. On Parker’s failed nomination, see KENNETH W. GOINGS, “THE NAACP COMES OF AGE”: THE DEFEAT OF JUDGE JOHN J. PARKER (1990); Richard L. Watson, Jr., The Defeat of Judge Parker: A Study in Pressure Groups and Politics, 50 MISS. VALLEY HIST. REV. 213 (1963). Some Southern judges simply refused to follow Brown. See, e.g., BASS, supra note 221, at 84-96; J.W. PELTASON, FIFTY EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION 7-8, 115-19 (1961). 224. See supra note 65.

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oppose black political participation.225 Second, while Southern black voter registration after Smith rose to roughly twenty percent in 1952, a large majority of Southern blacks remained disfranchised.226 Southern blacks needed more than a Supreme Court ruling invalidating the white primary to enable them to exercise fully their rights of democratic citizenship. The Justices sought to cushion the blow that Smith administered to Southern political traditions by reallocating the opinion-writing responsibilities from Felix Frankfurter, the Jewish Austrian immigrant from Harvard, to Stanley Reed, the native Kentuckian.227 That small concession to Southern sensibilities proved inefficacious. Many Southern Democrats trumpeted their defiance of Smith, warning fellow white Southerners that elimination of the white primary would jeopardize segregation and racial purity.228 Senator John Holmes Overton of Louisiana thundered that “[t]he South, at all costs, will maintain the rule of white supremacy.”229 Even Florida Senator Claude Pepper, one of the most liberal politicians in the South, breathed defiance when the decision in Smith was announced in the midst of his tough primary battle in April, 1944: “The South will allow nothing to impair white supremacy.”230 Democratic Party officials throughout the Deep South insisted that Smith would not affect their white primary policies.231 In fact, as we have seen, party officials did not permit blacks to vote in Democratic primaries in most counties of Florida, South Carolina, Georgia, Alabama, Louisiana, and Mississippi for at least a year or two after Smith.232 Southern newspapers cautioned that it was one thing for the Court to issue its edict and 225. Lawson and Tushnet both understate the extent of the post-Smith backlash. LAWSON, supra note 10, at 46 (calling the Southern response to Smith “remarkably calm”); TUSHNET, supra note 91, at 107 (endorsing Lawson’s assessment). 226. LAWSON, supra note 10, at 139 tbl.1. 227. See ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 614-15 (1956). 228. For enraged Southern responses to Smith, see Lewis Wood, Ruling on Texas Voting Arouses Southern Race, N.Y. TIMES, Apr. 9, 1944, at 6E; Arthur Krock, South’s Devices Run Thin, N.Y. TIMES, Apr. 5, 1944, at 12; Outspoken Against Negro Participation in Primaries, ARK. GAZETTE (undated), microformed on NAACP Papers, pt. IV, reel 6, fr. 676. For the larger threat posed by elimination of the white primary, see Political advertisement for Roy Harris, AUGUSTA CHRON. (Apr. 13, 1946), id. pt. IV, reel 7, frs. 433-36. 229. Time Bomb, supra note 111, at 21. 230. Id.; see also Gary R. Mormino, GI Joe Meets Jim Crow: Racial Violence and Reform in World War II Florida, 73 FLA. HIST. Q. 23, 39-40 (1994) (noting Pepper’s statement). For other criticism of Smith by Southern politicians, see Wood, supra note 195, at 1. 231. See, e.g., Southern Leaders Prepare to Resist, supra note 97, at 15; Further Legal Battles Likely on Negro’s Primary Vote Right (unidentified press clipping) (Apr. 4, 1944), microformed on NAACP Papers, pt. IV, reel 7, fr. 583; Letter from Malcolm E. Lafargue to Daniel E. Byrd (Oct. 23, 1947), id. pt. IV, reel 8, fr. 529; Letter from John L. LeFlore to Milton R. Konvitz (Apr. 12, 1944), id. pt. IV, reel 6, frs. 302-03; Letter from Arthur D. Shores to Thurgood Marshall (May 3, 1944), id. pt. IV, reel 6, fr. 67. 232. See supra notes 214-17 and accompanying text.

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quite another to enforce it, especially when the decision augured “a political and social revolution.”233 Southern white citizens warned that “you can[’]t push nigger equality on the South without a fight.”234 In some Southern states, Smith inspired efforts to suppress black voter registration. As we have seen, Alabama enacted the Boswell amendment to confer virtually unfettered discretion on registrars to reject black applicants, and Georgia likewise adopted more stringent registration requirements.235 As elimination of the white primary inspired more blacks to register, public officials became more intransigent, strictly interpreting registration requirements whether or not state law authorized them to do so. Emory Jackson, secretary of the NAACP’s Birmingham branch, reported early in 1945 that local registrars were “getting worse” since Smith, and as a result the drive to register black voters did not “seem to be making much headway.”236 The NAACP’s branch secretary in Marion County, Florida, observed late in 1945 that Southern whites had grown increasingly resigned to opening Democratic primaries to black participation and now were employing alternative methods to preserve white political supremacy, such as fraud, economic intimidation, and physical violence.237 Late in 1947 the executive committee of the Caddo Parish, Louisiana, Democratic Party rescinded its resolution excluding blacks from party primaries, but the parish registrar refused to enroll blacks unless they produced three white vouchers who were personally known to the registrar and resided in the same precinct as the registrant— virtually impossible requirements for blacks to meet.238 The political backlash against Smith was greatest in South Carolina and Mississippi, the two southern states with the largest black population percentages. Senator Burnet Maybank of South Carolina warned his Senate colleagues a few days after Smith that white Southerners “will not accept these interferences” and that “we of the 233. Editorial, Theory Versus Condition (unidentified Georgia newspaper) (Apr. 4, 1944), microformed on NAACP Papers, pt. IV, reel 7, fr. 585. 234. Letter from H.L. Hunnicutt to Claude Dempsey (Feb. 21, 1945), id. pt. IV, reel 6, fr. 693. 235. See supra notes 204-05 and accompanying text. 236. Letter from Emory O. Jackson to Thurgood Marshall (Feb. 8, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 116; see also Letter from Emory O. Jackson to Thurgood Marshall, supra note 164, at fr. 131; unidentified press clipping, supra note 129, at fr. 274. 237. Letter from John A. Buggs to Thurgood Marshall (Dec. 18, 1945), microformed on NAACP Papers, pt. IV, reel 6, fr. 892. 238. See Letter from Daniel E. Byrd to Thurgood Marshall (Nov. 6, 1947), id. pt. IV, reel 8, fr. 531; Letter from Donald Jones to Tom Clark (Nov. 24, 1947), id. pt. IV, reel 8, fr. 535. See also Letter from Chair of Alexandria, La., Branch Legal Committee to NAACP, supra note 158, at fr. 424; Letter from Thurgood Marshall to Francis J. Biddle, supra note 211, at fr. 433.

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South will maintain our political and social institutions as we believe to be in the best interest of our people.”239 Governor Olin Johnston called the South Carolina Legislature into special session a few days later.240 Announcing that “[h]istory has taught us that we must keep our white Democratic primaries pure and unadulterated,”241 Johnston urged the repeal of all 150 state laws regulating the Democratic Party, which on one reading of Smith would enable the party to continue operating a white primary without violating the Constitution.242 Should wholesale deregulation of the party fail, Johnston ominously warned, “we South Carolinians will use the necessary methods to retain white supremacy in our primaries and to safeguard the homes and happiness of our people.”243 Johnston concluded: “White supremacy will be maintained in our primaries. Let the chips fall where they may!”244 Likewise in Mississippi, Smith invigorated those whites most committed to preserving white political supremacy. The Jackson Daily News warned the Justices that they were badly mistaken if they believed blacks would vote in Mississippi Democratic primaries.245 If any foolish person doubted this, “let ‘em try.”246 The worst manifestation of the Smith backlash materialized in Mississippi two years later.247 The combination of Smith and the aggressive effort of Southern blacks to implement it created a golden opportunity for white supremacist politicians.248 With Mississippi blacks seeking to register in unprecedented numbers, Senator Theodore Bilbo, running for reelection in the 1946 Democratic primary, invoked the specter of “Negro domination” in a state that had just (barely) ceased for the first time in a century to have a black majority.249 In a widely reported campaign speech, Bilbo exhorted every “red-blooded white

239. Cushman, supra note 197, at 75; C.P. Trussell, South Won’t Open Polls to Negroes, Maybank Warns, N.Y. TIMES, Apr. 14, 1944, at 1. 240. Proclamation of Gov. Olin T. Johnston (Apr. 12, 1944), microformed on NAACP Papers, pt. IV, reel 10, fr. 481. 241. Olin T. Johnston, Speech to Joint Assembly and General Assembly of South Carolina (Apr. 14, 1944), id. pt. IV, reel 10, frs. 481-82. 242. Id. 243. Id. at fr. 482. 244. Id. 245. Supreme Court Rules Out White Primaries, 51 THE CRISIS 164, 165 (May 1944). 246. Id. at 165. 247. For a similar effort by former governor Eugene Talmadge to capitalize on Smith in Georgia, see Tinder for Talmadge, NEWSWEEK, July 1, 1946, at 22, microformed on NAACP Papers, pt. IV, reel 7, fr. 723; Three States Top Week’s Primaries, N.Y. TIMES, July 15, 1946, at 1; ALEXANDER HEARD, A TWO-PARTY SOUTH? 192 (1952); SULLIVAN, supra note 69, at 211; Joseph L. Bernd, White Supremacy and the Disfranchisement of Blacks in Georgia, 1946, 66 GA. HIST. Q. 492, 494-98 (1982). 248. See FAIRCLOUGH, supra note 105, at 136; SULLIVAN, supra note 69, at 7. 249. DITTMER, supra note 127, at 2; LAWSON, supra note 10, at 99-100; Lewis, supra note 203, at 329, 332.

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man to use any means to keep the niggers away from the polls.”250 Declining explicitly to advocate violence, Bilbo slyly observed that “you know and I know what’s the best way to keep the nigger from voting. You do it the night before the election. I don’t have to tell you any more than that. Red-blooded men know what I mean.”251 Throughout the state, enthusiastic supporters took the Senator at his word.252 Crosses were burnt in Jackson. In Biloxi, a sign at a street intersection warned blacks to “vote at your own risk.” In Pucket, Mississippi, four whites beat a black man and threatened to kill him for attempting to register. Whites brandishing pistols repulsed Medgar Evers and four other black veterans from the polls in Decatur, Mississippi. Of course, the backlash created by Smith could generate its own counterbacklash. Mississippi Democrats could get away with threatening and deploying deadly force against prospective black voters in 1875 or even 1935, but no longer by 1945. Dominant public opinion in the nation simply could not bear Bilbo’s thinly veiled exhortations to violence. A white man from McAlester, Oklahoma, informed Bilbo that his speech was reminiscent of sentiments emanating from that “late departed and unlamented jerk in Germany” and admonished the Senator that “[t]he time for this narrow-minded race hatred stuff is out.”253 Bilbo unwittingly had challenged the Federal Government to prove that it had the inclination and capacity to enforce a Supreme Court decision against an obstreperous southern state.254 The United States Senate had little choice but to conduct investigative hearings, which took place under the chairmanship of Louisiana Senator Allen Ellender in early December 1946.255 Those hearings had an important educational effect on Northern opinion, as well as a motivational impact on Mississippi blacks. The Northern Senators on the Ellender committee were shocked by the revelations of force and fraud used by white Mississippians to defeat black suffrage. A Washington Post editorial noted that it was impossible to read the Senate committee’s re250. Lewis, supra note 203, at 332. 251. LAWSON, supra note 10, at 100. 252. NAACP, Negro Vote in Southern States (undated), microformed on NAACP Papers, pt. IV, reel 8, frs. 862, 868-69 [hereinafter Negro Vote]; see also Letter from Rev. George T.J. Strype to Lamarr Caudley (July 2, 1946), id. pt. IV, reel 9, frs. 57-58; DITTMER, supra note 127, at 1-3; LAWSON, supra note 10, at 103. 253. Letter from H.W. Polson to Sen. Bilbo (June 23, 1946), microformed on NAACP Papers, pt. IV, reel 9, frs. 31-32. 254. See Letter from Daniel E. Byrd to Thurgood Marshall (July 3, 1946), id. pt. IV, reel 9, frs. 49-50; Letter from Daniel E. Byrd to Thurgood Marshall (July 6, 1946), id. pt. IV, reel 9, fr. 60. 255. This account of the Senate committee’s investigation of Bilbo’s 1946 Senate primary campaign is distilled from Probes: Votes and The Man, NEWSWEEK, Dec. 16, 1946, at 33-34; DITTMER, supra note 127, at 3-9; LAWSON, supra note 10, at 105-14; Lewis, supra note 203, at 332-39.

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port on Bilbo without “a sense of sickness” at the outright brutality displayed.256 Nearly 200 Mississippi blacks—many of them World War II veterans, some wearing their good conduct medals—showed up as volunteer witnesses at the Senate committee hearings conducted in Jackson to testify to the physical violence they had endured for attempting to exercise their federal constitutional rights.257 Many more Mississippi blacks expressed renewed determination to enjoy the benefits of democratic citizenship by appearing at registrars’ offices. Black voter registration in Mississippi rose by fifty percent in the year following the Bilbo hearings. Other incidents involving violent (indeed deadly) suppression of the efforts of Southern blacks to vote in the late 1940s likewise proved to have “terrific publicity value” for the voter registration campaign.258 It was one thing to use obfuscation to prevent Southern blacks from voting; it was quite another to use deadly force. Much as public opinion was repulsed by the use of violence to suppress black suffrage in Mississippi, so was judicial opinion alienated by the persistent use of evasive tactics to circumvent Smith in South Carolina. Judge Waring became infuriated as state Democratic officials responded to his rulings with further efforts at circumvention. When South Carolina repealed all of its statutes regulating political parties after Smith, Judge Waring decreed that the time had come for the state to “rejoin the Union,” and he ordered party officials to allow blacks to vote in primaries.259 They responded instead by adopting a dual party membership status based on race and a loyalty oath designed to offend prospective black members. A furious Judge Waring invalidated these new party rules and declared that “the time has come when racial discrimination in political affairs [has] got to stop.”260 He did not “care whether there [were] any people who agree[d] with [him]”;261 South Carolina must obey the law of the 256. Editorial, Bilboism, WASH. POST, Dec. 6, 1946, at 18. 257. Probes: Votes and The Man, supra note 255, at 33-34; see also DITTMER, supra note 127, at 8-9; LAWSON, supra note 10, at 112-14. Southern Democrats, enjoying a majority on the Ellender committee, refused to hold Bilbo responsible for the violence that had pervaded his election contest. The Republican minority on the committee dissented. However, the new Congress that convened in January 1947 had a Republican majority that refused to seat Bilbo. A compromise was reached, under which Bilbo’s credentials were laid on the table while the Senator took a leave of absence owing to ill health. He died later in 1947, thus mooting the issue of whether to seat him. 258. Letter from Franklin H. Williams to A.T. Walden (Oct. 25, 1948), microformed on NAACP Papers, pt. IV, reel 8, fr. 316; see also Memorandum from Roy Wilkins to Walter White (Nov. 3, 1948), id. pt. IV, reel 8, fr. 320. 259. Elmore v. Rice, 72 F. Supp. 516, 528 (E.D.S.C. 1947); see supra notes 76-79 and accompanying text. 260. Transcript of statement by Judge Waring in Brown v. Baskin (July 16, 1948), microformed on NAACP Papers, pt. IV, reel 9, frs. 636-38 [hereinafter Waring Transcript]. See also KEY, supra note 114, at 631. 261. Waring Transcript, supra note 260, at fr. 638.

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land. Waring warned that any future violations of the letter or spirit of his order were “going to be punished by imprisonment.”262 One wonders if Supreme Court Justices, observing party and public officials evading High Court rulings, might have shared Waring’s growing irritation, as well as his determination to expand legal interpretations where necessary to counter Southern efforts at circumvention. Certainly the Justices’ willingness to find unconstitutional state action in Terry v. Adams is consistent with that hypothesis.263 In sum, while Smith generated a white supremacist backlash in Deep South politics, the violence and evasion that ensued generated their own counterbacklashes. National opinion by the mid-1940s no longer countenanced the violent suppression of black suffrage in Mississippi. Revulsion against this sort of brutality contributed significantly to the development of a national civil rights consciousness in the postwar years, which in turn influenced President Truman’s racial policies.264 Moreover, the fraudulent evasive tactics of public and party officials after Smith inspired a similar backlash in judicial opinion, as federal judges tired of the seemingly endless capacity of Southern officials to devise new methods of obstructing black suffrage. Notwithstanding the impressive gains made in black voter registration in the postwar period, black voting in the South remained confined largely to cities and towns. In rural areas, especially in the Deep South, the overwhelming majority of blacks remained disfranchised.265 Thus, for example, while an estimated 22,000 blacks were registered to vote in Atlanta by 1946,266 in dozens of Deep South counties, many of which had black majorities, not a single black person was registered to vote.267 In Louisiana, black voter registration had exploded in 1948 from 8,000 to 43,000, yet roughly fifty percent of those black voters lived in New Orleans, and in half of the state’s

262. Id. 263. 345 U.S. 461 (1952); see supra notes 88-91 and accompanying text. 264. See, e.g., DONALD R. MCCOY & RICHARD T. RUETTEN, QUEST AND RESPONSE: MINORITY RIGHTS AND THE TRUMAN ADMINISTRATION 42-54 (1973); TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT’S COMMISSION ON CIVIL RIGHTS 20-27 (1947); Kari Frederickson, “The Slowest State” and “Most Backward Community”: Racial Violence in South Carolina and Federal Civil-Rights Legislation, 1946-1948, 98 S.C. HIST. MAG. 177 (1997). 265. On the contrast between the urban and rural South, see FAIRCLOUGH, supra note 105, at 123-24; KEY, supra note 114, at 522; LAWSON, supra note 10, at 129-30; Emmons, supra note 106, at 237; Negro Vote, supra note 252; Tureaud memorandum, supra note 142, at frs. 407-09. 266. Negro Vote, supra note 252, at fr. 867. 267. See, e.g., GARROW, supra note 92, at 9 (noting the existence of fourteen Mississippi counties that did not have a single registered black voter in 1955); LAWSON, supra note 10, at 130 (noting the existence of two dozen black-belt counties in the Deep South where not a single black person was registered to vote in 1952); Bernd, supra note 247, at 500.

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sixty-four parishes, not a single black person voted.268 Well over 100,000 blacks had registered to vote in Georgia by 1948, and roughly 300,000 had enrolled in Texas, yet Mississippi and Alabama showed “no progress,”269 as black voter registration in those states was limited to a paltry 3,000 and 8,000, respectively.270 One of the most formidable obstacles to black voting in the rural South remained the threat and reality of physical violence. In the mid-1940s the South was a less violent place for blacks asserting their constitutional rights than it had been even ten years earlier,271 but it was still plenty violent. While blacks in Florida cities had registered in large numbers by the late 1940s, prospective black voters in rural parts of the state had to endure KKK intimidation, letters warning that those who dared to vote would “be floating up and down the river,”272 and shots fired into their homes.273 Tens of thousands of blacks registered to vote in Louisiana’s urban parishes, while most rural blacks remained “afraid to even try to register because of repeated examples of brutality and threatened acts against their physical safety.”274 Rural blacks in Louisiana received written notes from the KKK threatening to put black voters “out of business”275 and warnings that whites were “figuring on raising Hell”276 if blacks turned out at the polls. Sheriffs and deputy sheriffs in rural Alabama terrorized blacks who dared attempt to register.277 Thousands of blacks voted with little resistance in Georgia cities such as Atlanta, Savannah, and Augusta by 1946, but rural blacks had to endure KKK intimidation and warnings that any black man who voted

268. Weber, Citizenship, supra note 101, at fr. 550; see also FAIRCLOUGH, supra note 105, at 123-24 (providing a lower number for black voter registration in Louisiana). 269. Weber, Citizenship, supra note 101, at fr. 552. 270. Id. at fr. 549. For a slightly different estimate for Mississippi, see Lewis, supra note 203, at 334. 271. See supra notes 180-87 and accompanying text. 272. Letter from unidentified author in Milton, Florida, to NAACP (Apr. 14, 1948), microformed on NAACP Papers, pt. IV, reel 6, fr. 936. 273. Statement of Deacon Smith (undated), id. pt. IV, reel 6, frs. 910-11; Letter from Harry T. Moore to Gov. Willard F. Caldwell (Apr. 20, 1948), id. pt. IV, reel 6, fr. 941; Letter from Eldridge G. Brooks to NAACP (July 19, 1948), id. pt. IV, reel 6, fr. 946. 274. Tureaud memorandum, supra note 142, at fr. 409. 275. Letter from A.P. Tureaud to Justice Department (Jan. 17, 1948), microformed on NAACP Papers, pt. IV, reel 8, fr. 569. 276. Letter from Rev. John Allum to NAACP (Feb. 4, 1948), id. pt. IV, reel 8, frs. 57980. For more Louisiana examples, see Letter from A.P. Tureaud to Justice Department (Jan. 23, 1948), id. pt. IV, reel 8, fr. 573; Letter from A.P. Tureaud to J. Skelly Wright (July 29, 1948), id. pt. IV, reel 8, fr. 590; Letter from Herbert Monte Levy to Thurgood Marshall (June 30, 1950), id. pt. IV, reel 8, fr. 615. 277. Letter from Emory O. Jackson to Thurgood Marshall, supra note 207, at frs. 25354; Letter from Clayborn Williams et al., to “To Whom it May Concern” (Dec. 7, 1949), microformed on NAACP Papers, pt. IV, reel 6, frs. 250-51.

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would be “a dead Nigger.”278 Most rural Georgia blacks heeded gubernatorial candidate Eugene Talmadge’s warnings to stay away from the polls. In Mississippi, even the cities remained dangerous. The editor of a black newspaper in Jackson reported that fear was the reason why only 315 of the 40,000 blacks living in that city registered to vote in 1946.279 The Jackson Daily News published the names of blacks who were prominent in the Mississippi Progressive Voters League and warned that the best way “to prevent unhealthy and unhappy results” was for blacks to stay away from Democratic primaries.280 Prospective black voters in the rural Deep South had good reason to be frightened. A recently discharged veteran, Etoy Fletcher, tried to register in rural Mississippi in 1946. The registrar informed him that “Niggers are not allowed to vote in Rankin County, and if you don’t want to get into serious trouble get out of this building . . . .”281 While waiting for a bus out of town, Fletcher was assaulted by four white men who drove him several miles into the woods, “beat[ ] and flogged [him] mercilessly,” and threatened to kill him if he ever again attempted to vote.282 Many other aspiring black voters in Mississippi reported similar assaults during the summer of 1946,283 as “everything short of murder”284 was perpetrated upon them. In Gadsden County, Florida, two black half-brothers, J.T. Smith and Harry Moody, helped mobilize 150 blacks to register in 1947 and 1948. Then, ignoring warnings from several whites, they turned out at the polls themselves in May, 1948. As a result, one of them had his home blown up, crippling one of his children, and both of them were run out of town.285 In Montgomery County, Georgia, D.V. Carter organized an NAACP branch in 1946 consisting mainly of farmers and sharecroppers and devoted principally to voter registration activities.286 Several hundred blacks registered as a result of these efforts. After ignoring repeated threats from the KKK to desist from his suf278. Letter from C.L. Jordan to NAACP (Jan. 29, 1948), microformed on NAACP Papers, pt. IV, reel 8, fr. 215; see Negro Vote, supra note 252, at fr. 867. 279. See Probes: Votes and The Man, supra note 255, at 33. 280. JACKSON DAILY NEWS (undated), microformed on NAACP Papers, pt. IV, reel 8, fr. 892. 281. Etoy Fletcher Affidavit (June 15, 1946), id. pt. IV, reel 8, fr. 894. 282. Id. 283. See, e.g., Statement of V.R. Collier (July 2, 1946), microformed on NAACP Papers, pt. IV, reel 9, frs. 51-56; Letter from Robert L. Carter to Tom Clark (July 1, 1946), id. pt. IV, reel 9, fr. 47. 284. Letter from V.R. Collier to NAACP (July 8, 1946), id. pt. IV, reel 9, fr. 61. 285. See Letter from J.T. Smith to Walter White (May 11, 1948), id. pt. IV, reel 6, frs. 762-65; Letter from D.H. Spencer to Mrs. Black (May 12, 1948), id. pt. IV, reel 6, frs. 76768; Smith Affidavit (June 1, 1948), id. pt. IV, reel 6, frs. 779-81; Letter from Harry T. Moore to Thurgood Marshall, supra note 169, at fr. 791; Emmons, supra note 106, at 241. 286. Memorandum from Franklin H. Williams to Henry Lee Moon (Nov. 26, 1948), microformed on NAACP Papers, pt. IV, reel 7, frs. 883-86.

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frage activities, Carter was severely beaten in 1948. Isaac Nixon, whom Carter had persuaded to vote, was murdered for doing so.287 An all-white jury acquitted the two white brothers responsible for killing Carter.288 In Louisiana in 1951, a white deputy sheriff killed, allegedly in self-defense, a black man who happened to be one of the plaintiffs in an NAACP voting rights case.289 Harry Moore, founder of Florida’s Progressive Voters League, was assassinated by a bomb planted in his home on Christmas night, 1951—possibly in retaliation for his voting rights work.290 While the Justice Department was more attentive to NAACP concerns by the late 1940s, it remained reluctant to prosecute public and party officials who obstructed black voting. Democratic administrations in Washington, D.C., had political incentives not to prosecute Southern Democrats, because doing so might “translate impotent rumblings against the New Deal into actual revolt at the polls.”291 Moreover, Southern United States attorneys, especially if ambitious for elective office, were not eager to prosecute voting cases.292 Even for those who were, these cases proved difficult to win. Prosecutors had trouble locating witnesses, as local communities protected culprits behind a veil of silence.293 Most importantly, local white jurors simply would not convict registrars or party officials for adhering to traditional mores rejecting black suffrage.294 Thus, the NAACP’s constant pressure on the Justice Department to prosecute voting cases 287. Letter from Dr. Ralph Mark Gilbert to Franklin H. Williams (Oct. 14, 1948), id. pt. IV, reel 7, fr. 867. 288. See id. at fr. 867; Memorandum from Franklin H. Williams to Henry Lee Moon, supra note 286, at frs. 883-86; Georgia Negro Was Slain for Voting, N.Y. TIMES (Sept. 12, 1948), microformed on NAACP Papers, pt. IV, reel 8, fr. 288; Letter from A.T. Walden to Franklin H. Williams (Oct. 21, 1948), id. pt. IV, reel 8, frs. 312-13. 289. Along the N.A.A.C.P. Battlefront, 58 THE CRISIS 674 (Dec. 1951); FAIRCLOUGH, supra note 105, at 130-31. 290. On Moore’s unsolved murder, see GREEN, supra note 130, at 1-15, 172-226. Moore was involved in all aspects of the civil rights struggle in Florida. There is no way of knowing whether he was killed for his voting rights work or, for example, because of his efforts to secure justice in the infamous Groveland case. The best treatment of Groveland is Lawson et al., supra note 106. 291. Quotation from Roosevelt’s race relations adviser, Jonathan Daniels, in LAWSON, supra note 10, at 47. 292. See, e.g., Letter from Malcolm E. Lafargue to Daniel E. Byrd, supra note 231, at fr. 529; Statement of V.R. Collier, supra note 283, at frs. 51-56; Telegram from Thurgood Marshall to Wendell Burge (May 21, 1941), microformed on NAACP Papers, pt. IV, reel 10, fr. 600; 3 Cherokee Men Cleared by Jury (unidentified and undated newspaper clipping), id. pt. IV, reel 9, fr. 609; TO SECURE THESE RIGHTS, supra note 264, at 121. 293. See, e.g., Letter from Alexander M. Campbell to Franklin H. Williams (Nov. 30, 1948), microformed on NAACP Papers, pt. IV, reel 6, fr. 794; Letter from Alexander M. Campbell to Thurgood Marshall (May 22, 1949), id. pt. IV, reel 7, frs. 1038-39. 294. See, e.g., Letter from Lottie P. Gaffney to Thurgood Marshall, supra note 159, at frs. 644-45; 3 Cherokee Men Cleared by Jury, supra note 292, at fr. 609. For the Justice Department’s conviction that it could not win such cases, see CARR, supra note 34, at 149, 178.

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went for naught—to the great frustration of the Association, which had deferred numerous civil lawsuits on the view that criminal prosecutions should take priority.295 NAACP officials believed that they had a “distinct understanding”296 with the Justice Department that it would prosecute voting cases in 1944-45, and they had ample reason for concluding that the Department was “doubledealing.”297 Even in cases of patent constitutional violations, the Department refused to prosecute. Where prospective black voters had been beaten or killed, the Department conducted investigations, but even in these cases no prosecutions resulted.298 In the end, the empty threat of federal prosecution proved inadequate to deter those Southern whites who were committed to obstructing black suffrage through force or fraud. Violence and the Justice Department’s failure to prosecute it were not the only obstacles to black voting in the rural Deep South. Blacks daring to exercise their suffrage rights faced likely economic retaliation, which posed a special problem in rural areas where blacks were almost entirely dependent upon whites for employment (unlike in Southern cities, where the segregated economy had produced a class of black professionals—doctors, dentists, undertakers, and ministers—who were largely independent of white economic pressure).299 Public officials in Mobile, Alabama, struggled mightily to have John LeFlore, the energetic chairman of the NAACP’s Regional Conference of Southern Branches, fired from his job with the United States

295. For NAACP pressure on the Justice Department, see Letter from Robert L. Carter to Tom Clark (July 16, 1946), microformed on NAACP Papers, pt. IV, reel 9, fr. 74; Letter from Thurgood Marshall to Tom Clark, supra note 159, at frs. 236-37; Emmons, supra note 106, at 240-41; see also supra notes 162-67 and accompanying text. For the NAACP’s deferral of civil lawsuits, see, for example, Letter from Thurgood Marshall to A.T. Walden (Sept. 25, 1944), microformed on NAACP Papers, pt. IV, reel 7, fr. 625; Letter from Thurgood Marshall to John L. LeFlore (Dec. 11, 1945), id. pt. IV, reel 6, fr. 550; Letter from C.A. Scott & Wallace Van Jackson to Thurgood Marshall (Aug. 26, 1944), id. pt. IV, reel 8, frs. 83-84. 296. Letter from Thurgood Marshall to C.A. Scott (Dec. 6, 1944), microformed on NAACP Papers, pt. IV, reel 7, fr. 630. 297. Letter from Daniel E. Byrd to Robert L. Carter (July 30, 1946), id. pt. IV, reel 9, fr. 80; see Letter from C.A. Scott to Thurgood Marshall (Apr. 29, 1945), id. pt. IV, reel 9, fr. 648; LAWSON, supra note 10, at 48-49. For further evidence of Department assurances that it would prosecute, see Letter from Thurgood Marshall to C.A. Scott (Dec. 14, 1944), microformed on NAACP Papers, pt. IV, reel 9, fr. 633; Letter from A.T. Walden to Thurgood Marshall (Sept. 1, 1944), id. pt. IV, reel 8, frs. 91-92; Letter from A.T. Walden to Francis J. Biddle, supra note 71, at fr. 637. 298. See, e.g., LAWSON, supra note 10, at 119. 299. On economic retaliation, see, for example, Letter from Lottie A. Gaffney to NAACP (June 4, 1942), microformed on NAACP Papers, pt. IV, reel 10, frs. 666-69. On the benefits of the segregated urban economy, see, for example, MYRDAL, supra note 65, at 304-10; GEORGE C. WRIGHT, LIFE BEHIND A VEIL: BLACKS IN LOUISVILLE, KENTUCKY 18651930, at 220-28 (1985).

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Postal Service in retaliation for his voter registration activity.300 Nor were lawsuits to vindicate constitutional suffrage rights a realistic option for indigent rural blacks.301 Even those who could afford to sue might not be able to find a lawyer willing to take voting rights cases. Very few black lawyers practiced in the rural South, and many white lawyers remained reluctant to challenge black disfranchisement.302 Moreover, litigation challenging the political status quo in the rural Deep South entailed possible risks, both for clients and attorneys.303 A black lawyer named Arthur Madison, who sued to compel Montgomery County, Alabama, registrars to enroll black applicants in 1944, was arrested, convicted, and then summarily disbarred for representing clients without authorization.304 The county sheriff had intimidated Madison’s clients into withdrawing their consent to his representation.305 No white lawyers were willing to defend Madison at his trial. In another incident, a black minister from Louisville, Mississippi, informed the NAACP of his unsuccessful effort to vote in the Democratic primary in July 1946.306 He wanted the Justice Department informed, but because of “the social condition of the Deep south,” 307 he did not want his name used publicly until it was time to testify in court, because publicity would put his life in jeopardy. Finally, such lawsuits, even if they could be brought without inciting retaliation, were hardly a cinch to win. Many federal judges by the early 1950s were willing to enjoin registrars from engaging in racially discriminatory practices, but were not yet prepared to invalidate vaguely worded literacy tests or to command that particular

300. Letter from John L. LeFlore to Thurgood Marshall (Feb. 5, 1946), microformed on NAACP Papers, pt. IV, reel 6, frs. 551-52; Schnell Accuses Negroes’ Leader, MOBILE PRESS (Feb. 1, 1946), id. pt. IV, reel 6, fr. 553. 301. See, e.g., Letter from Daniel E. Byrd to Robert L. Carter (July 6, 1947), id. pt. IV, reel 9, frs. 115-16. 302. On the paucity of black lawyers, see, for example, MYRDAL, supra note 65, at 550; Charles H. Houston, The Need for Negro Lawyers, 4 J. NEGRO EDUC. 49, 50 tbl.1 (1935). On the reluctance of white lawyers to take such cases, see supra note 152. 303. For threats against white lawyers, see Letter from Harry T. Moore to C.A. Smith (May 26, 1948), microformed on NAACP Papers, pt. IV, reel 6, frs. 942-43. For intimidation of prospective black litigants, see Letter from Daniel E. Byrd to T. Vincent Quinn (Dec. 16, 1947), id. pt. IV, reel 8, frs. 551-52. 304. Letter from John L. Leflore to Thurgood Marshall (Apr. 9, 1944), id. pt. IV, reel 6, fr. 293; Letter from Arthur D. Shores to Thurgood Marshall (Apr. 22, 1944), id. pt. IV, reel 6, fr. 315; Held in Negro Vote Case, N.Y. TIMES, Apr. 10, 1944, at 21. 305. Letter from Thurgood Marshall to Tom Clark (May 1, 1944), microformed on NAACP Papers, pt. IV, reel 6, fr. 321. 306. Letter from Rev. C.N. Eiland to Walter White (July 16, 1946), id. pt. IV, reel 9, fr. 73. 307. Id.; see also Letter from Thurgood Marshall to C.A. Smith (Feb. 11, 1947), id. pt. IV, reel 9, fr. 108 (noting that NAACP representatives in Mississippi were “unwilling to permit their names to be used in any investigation”).

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black applicants be registered, for fear of usurping registrars’ authority.308 Blacks in the rural South would not vote in significant numbers until further interventions by the Supreme Court and, more importantly, by Congress and the President—developments that did not take place for the most part until the 1960s. Only the federal executive could secure the physical safety of black voters in the Deep South. Only Congress could lift the burden of litigating voting rights violations from the shoulders of individual blacks and place it on the Federal Government by empowering the Attorney General to seek injunctions against registrars who practiced race discrimination—a remedy that also had the advantage of avoiding (white) Southern juries.309 More importantly, only Congress could threaten to replace local registrars with federal officials if discrimination against black registrants did not cease.310 The Supreme Court in 1966 finally invalidated the poll tax in the few Southern states that continued to employ that suffrage restriction.311 Yet because the Court continued to reject constitutional challenges to literacy tests as late as 1959, further congressional intervention was necessary to eliminate that obstacle to black voter registration.312 Smith v. Allwright, in conjunction with receptive social and political conditions, launched a racial revolution in Southern politics. But it could not overcome the obstacles to black voting in the rural Deep South. Only intervention by the political branches of the National Government could secure to all Southern blacks the right to participate in politics on the same terms as Southern whites. That intervention was mainly a product of the 1960s civil rights movement.313

308. See, e.g., Byrd v. Brice, 104 F. Supp. 442, 443 (W.D. La. 1952) (refusing to order the complainant registered, because to do so “would be usurpation by [the court] of the discretionary function of the registrar”). 309. Civil Rights Act of 1957, Pub. L. No. 85-315, § 131(c), 71 Stat. 634, 637-38 (codified as amended at 42 U.S.C. § 1971(c) (1994)). On the 1957 Act’s provision empowering the Justice Department to seek injunctive relief, see LAWSON, supra note 10, at 120-21, 349. 310. Civil Rights Act of 1965, Pub. L. No. 89-110, § 3(a), 79 Stat. 437, 437 (codified as amended at 42 U.S.C. § 1973a(a) (1994)). 311. Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966). On the continued disfranchising effect of the poll tax, see KEY, supra note 114, at 608 (estimating that repeal of the poll tax increases voter turnout by about five percent to ten percent); OGDEN, supra note 62, at 135-36 (same). 312. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959); Civil Rights Act of 1965, Pub. L. No. 89-110, § 3(b), 79 Stat. 437, 437 (codified as amended at 42 U.S.C. § 1973a(b) (1994)). 313. On the vital linkage between the Selma demonstrations of early 1965 and the seminal Voting Rights Act of that year, see GARROW, supra note 92, at 31-178.

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V. CONCLUSION It is interesting to speculate why Smith proved so much more efficacious than either roughly contemporaneous criminal procedure decisions involving the rights of Southern blacks or the slightly later ruling in Brown v. Board of Education. While nearly one million Southern blacks registered to vote in the decade after Smith, essentially no blacks served on Southern criminal juries as long as two decades after Norris v. Alabama,314 and fewer than two percent of Southern black school children attended integrated schools a decade after Brown.315 A variety of factors may determine the relative efficacy of particular Court decisions. One reason Smith may have had more dramatic consequences for black voter registration than Brown had for Southern school desegregation is that the black community was more united behind, and more intensely committed to, securing the right to vote than the right to attend integrated schools. Voting is preservative of other rights,316 and many black leaders through the 1950s insisted that if Southern blacks were genuinely protected in their right to vote, they could secure other rights for themselves through the political process.317 Also, the democratic ideology of World War II more directly implicated the right to vote than the right to nonsegregated education. How could one possibly justify denial of suffrage rights to soldiers who had risked their lives on the battlefield?318 Southern black servicemen returning home in the mid-1940s often took their discharge papers straight to city hall so they could register to vote. They did not proceed directly to the local school board, demanding integrated education for their children; legal challenges to public school segregation were still several years in the offing. Moreover, the black community historically had been far more divided over the pursuit of integrated education than over suffrage rights.319 The prospect of genuinely equal, though separate, schools 314. 294 U.S. 587 (1935). On the continued exclusion of blacks from jury service, see Klarman, Criminal Procedure, supra note 6, at 82 (citing various sources); Klarman, Southern Criminal Justice System, supra note 6 (same). 315. ROSENBERG, supra note 1, at 50; HARVARD SITKOFF, THE STRUGGLE FOR BLACK EQUALITY 1954-1980, at 38 (1981). 316. See, e.g., Harper, 383 U.S. at 667; Reynolds v. Sims, 377 U.S. 533, 562 (1964). 317. For several contemporary statements to this effect, see WILLIAM R. KEECH, THE IMPACT OF NEGRO VOTING: THE ROLE OF THE VOTE IN THE QUEST FOR EQUALITY 2 (1968); LAWSON, supra note 10, at 128, 147, 166, 238; MOON, supra note 109, at 9. For the argument that Brown might not have been necessary had Southern blacks been fully protected in their suffrage rights, see Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747, 788-819 (1991). 318. For examples of this sentiment, see supra notes 59-60, 120, 124 and accompanying text. 319. For examples of such divisions within the black community, see Davison M. Douglas, The Limits of Law in Accomplishing Racial Change: School Segregation in the Pre-

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held some real appeal to segments of the black community. Separate black schools offered job opportunities for black teachers in an era in which few white collar occupations were open to blacks. They provided an educational environment generally free from the stereotyping, insult, and humiliation that characterized the black school child’s experience in that era’s integrated schools. Finally, black schools usually presented a more sympathetic portrayal of AfricanAmerican history and culture. None of this is to deny that most African Americans had become enthusiastic integrationists by the postWorld War II period. It is simply to suggest that the black community may have been somewhat more united, as well as intensely committed, on the issue of suffrage rights than on the question of integrated education. Southern whites, on the other hand, certainly were less intent on resisting black suffrage than integrated education by the late 1940s. Black disfranchisement always had occupied a lower rung on the white supremacist hierarchy of racial preferences than had school segregation. By the 1940s, many moderate white Southerners explicitly endorsed the removal of barriers to black political participation, while remaining adamantly committed to the preservation of public school segregation.320 Whites had a harder time justifying black disfranchisement to themselves in light of rising black educational levels and the democratic ideology of World War II. School integration, on the other hand, involved race mixing of young children, male and female, and therefore inevitably entailed for most white Southerners connotations of miscegenation.321 Most Southern whites probably also were more resistant to black jury service than to black political participation. Even if blacks became fully enfranchised, whites would retain secure political majorities in most Southern counties and in all Southern states. But criminal juries generally operated on the basis of unanimity, not simple majority rule. Thus, the presence of a single black person on a criminal jury could block the conviction of, say, a Brown North, 44 UCLA L. REV. 677, 697-701, 712-19 (1997); see also MARK V. TUSHNET, THE NAACP’S LITIGATION STRATEGY AGAINST SEGREGATED EDUCATION 1925-1950, at 8-10 (1987) (describing the debate within the NAACP in the mid-1930s, initiated by a controversial editorial by W.E.B. Du Bois, over whether to condemn public school segregation as well as racial inequality in education). 320. See, e.g., LAWSON, supra note 10, at 148-49, 179-80, 345; see also ARNALL, supra note 116, at 60 (former Georgia governor observing in 1946 that only a “surprisingly small” number of white Georgians favored disfranchisement of literate blacks). 321. See, e.g., Herbert Ravenel Sass, Mixed Schools and Mixed Blood, 198 ATLANTIC MONTHLY 45 (Nov. 1956) (“It is the deep conviction of nearly all white Southerners in the states which have large Negro populations that the mingling or integration of white and Negro children in the South’s primary schools would open the gates to miscegenation and widespread racial amalgamation.”); TIME, Dec. 20, 1954, at 54 (reporting Alabama State Senator Walter Givhan observing that the real purpose of the NAACP’s school desegregation campaign was “to open the bedroom doors of our white women to Negro men”).

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black man charged with raping a white woman or killing a white man allegedly in self-defense.322 Whites concerned about maintaining effective social control over blacks needed to exclude them from juries more than they needed to bar them from politics. Furthermore, some constitutional rights prove easier to circumvent than others. White Southerners discovered late in the nineteenth century that the most effective means of evading federal constitutional constraints was to delegate unfettered discretion to local administrative officials, who could effectively maintain white supremacy without openly violating the Fourteenth or Fifteenth Amendments. This is how Southern blacks were universally excluded from jury service, disfranchised, and cheated out of their fair share of public school funds.323 Over time, however, some of these administrative schemes for perpetuating white supremacy became more difficult to sustain than others. As blacks became better educated, registrars had a more difficult time maintaining with a straight face that black voter applicants had flunked literacy tests that many less welleducated whites had passed. The same was true regarding black representation on jury venires, but the critical difference here was that the peremptory challenge enabled prosecutors to exclude even qualified blacks from serving on petit juries through the 1980s.324 There was no analogue to the peremptory challenge in the suffrage context. In addition, alleged denials of constitutional rights often turn on disputed facts that may prove harder to establish in some contexts than in others. For example, a black Ph.D. from Tuskegee probably would not have had a difficult time demonstrating that he or she was denied the right to register to vote because of race rather than because of failure to pass a literacy test. On the other hand, a black criminal defendant crossing swords with a local sheriff over whether his confession was voluntarily given or induced by a beating would have had a much harder time convincing a (white) fact-finder of the veracity of his account. Thus, the disparate evidentiary burdens inherent in establishing particular constitutional violations may help 322. In other words, continued exclusion of blacks from criminal juries enabled the imposition of racially disparate liability rules. Specifically, only black men received the death penalty for rape (and then only for raping white women), and blacks who killed whites in self-defense generally were unable to mitigate their convictions from murder to manslaughter. See Klarman, Southern Criminal Justice System, supra note 6. 323. See Klarman, Plessy, supra note 15, at 363-65, 374-78, 382-87. 324. Compare Swain v. Alabama, 380 U.S. 202 (1965) (declining to invalidate a prosecutor’s use of peremptory challenges to exclude all blacks from a criminal jury in a case involving a black defendant), with Batson v. Kentucky, 476 U.S. 79 (1986) (overruling Swain). As a result of Norris and its progeny, at least a few blacks got onto Southern jury venires by the 1940s, but it took several more decades before blacks began regularly to serve on petit juries in criminal cases involving allegations of serious black-on-white crime. Klarman, Southern Criminal Justice System, supra note 6.

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explain why Court decisions protecting black suffrage rights proved more efficacious than those forbidding coerced confessions. Relatedly, judges and jurors probably found some rights-bearers more sympathetic litigants than others. Black criminal defendants—indigent, often illiterate and frequently guilty of some crime even if not the one with which they were charged—were less attractive rights-bearers than the middle class, well-educated blacks who endeavored to vote in the postwar years. The relative availability of sanctions for violations may have been another important factor in determining whether particular constitutional rights were successfully implemented. In the 1940s, law enforcement officers and jury commissioners had little direct incentive to respect the constitutional rights of black criminal defendants because civil or criminal sanctions for violating those rights generally were unavailable. After the Supreme Court’s decision in Screws v. United States,325 courts could impose criminal liability under federal civil rights statutes only in cases involving a crystal clear constitutional violation; official behavior anywhere near the line of permissibility did not qualify as a “willful” violation under the Court’s interpretation.326 Even in Screws, where the sheriff had wantonly murdered a black prisoner, several Justices balked at applying the federal civil rights statutes.327 It is far from clear that a majority of Justices in the 1940s would have been willing to impose federal criminal liability on a law enforcement officer who had beaten a defendant into confessing. Federal lawsuits seeking damages for coerced confessions were equally unpromising. In the 1940s, it was not clear that state officials acting in violation of state law—and every state forbade coerced confessions—could be sued under the federal civil rights statutes.328 Moreover, plaintiffs in such cases—by definition, alleged criminals—were unlikely to arouse great sympathy among jurors. By way of contrast, Southern voter registrars and party officials were more susceptible to legal sanctions. After Smith, a party official refusing to allow blacks to participate in party primaries had committed a clear constitutional violation that might qualify for federal criminal prosecution, even under Screws’ restrictive standard. Civil lawsuits were an even more realistic possibility. The Court’s first two white primary cases—Herndon in 1927 and Condon in 1932—had

325. 325 U.S. 91 (1945). 326. Id. at 100. 327. Id. at 138 (Roberts, J., dissenting). 328. The Supreme Court did not make it clear that the federal civil rights statutes permitted civil damages actions against public officials who violated state law until Monroe v. Pape, 365 U.S. 167 (1961). On the unanimous rule against coerced confessions, see Report on Lawlessless in Law Enforcement, 10 NAT’L COMM’N ON LAW OBSERVANCE AND ENFORCEMENT 3-4, 25, 28 (1931).

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sustained damages actions under federal civil rights statutes against public officials who refused to allow blacks to participate in Democratic Party primaries. Perhaps one reason that Southern school boards successfully resisted Brown’s mandate for so long was that school desegregation litigation in its early phases never sought monetary remedies.329 Two final factors that may have influenced the relative efficacy of particular Court decisions in the civil rights context were the quality of the lawyers and the type of courts involved in enforcing the respective rights. Constitutional rights have little value without effective lawyers to raise them, and black criminal defendants almost invariably were impecunious. The court-appointed lawyers they received in capital cases often simply went through the motions of presenting a defense and failed to challenge even clear violations of their clients’ constitutional rights.330 By way of contrast, blacks challenging denials of their voting rights hired their own lawyers. After World War II, they increasingly found that white lawyers were willing to undertake challenges to black disfranchisement. They also discovered that more, and better qualified, black lawyers were now practicing in the South.331 Finally, state appellate and federal judges were more likely than state trial judges to vindicate the constitutional rights of Southern blacks, because they were better educated, more professionalized, and more independent of local public opinion that may have been hostile to those rights. Yet, the cases of black criminal defendants usually did not proceed beyond trial courts, since state provision of counsel for indigents generally did not extend to appeals. Blacks litigating voting rights cases, by way of contrast, were free to choose the forum in which they sued—generally federal court—and they often commanded the resources necessary to pursue their cases to appellate courts, which were more likely to sympathize with their claims. Moreover, the traditional hierarchy of white supremacist values influenced Southern judges as much as anyone else. These judges, as we have seen, were far more likely to sympathize with, and thus to construe liberally, Smith v. Allwright than Brown v. Board of Education.332

329. See John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 101 (1999) (speculating that the Justices might have been less inclined to invalidate school segregation in Brown had such a ruling entailed the likelihood of massive monetary liability). 330. For several examples of such sham defenses, see Klarman, Southern Criminal Justice System, supra note 6. 331. See supra notes 151-52 and accompanying text. 332. See supra notes 199-203 & 208-24 and accompanying text.

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For all of these reasons, Smith proved more efficacious than did contemporaneous criminal procedure decisions involving the rights of Southern blacks or the later ruling in Brown. The lesson seems clear: Supreme Court rulings may have more dramatic consequences in some contexts than in others. While Brown desegregated relatively few Southern schools for a decade,333 Smith v. Allwright, in conjunction with a propitious set of social and political conditions, set in motion a political revolution in the urban South.

333. Of course I set aside here the question of Brown’s more indirect contributions to the civil rights movement. On that point, see the sources cited in supra note 5.

REVISIONS IN NEED OF REVISING: THE UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT ADAM J. HIRSCH* INTRODUCTION ..................................................................................................... I. EXCLUSIVITY ........................................................................................................ A. UDPIA and the Common Law ..................................................................... B. UDPIA and the Internal Revenue Code....................................................... II. TIMELINESS .......................................................................................................... III. STANDING ............................................................................................................. A. Heirs .............................................................................................................. B. Fiduciaries .................................................................................................... 1. Status...................................................................................................... a. Competent Beneficiaries .................................................................. b. Minor Beneficiaries.......................................................................... c. Incapacitated Beneficiaries ............................................................. d. Deceased Beneficiaries..................................................................... e. Charitable Trusts ............................................................................ 2. Administrative Standard ...................................................................... 3. Oversight ................................................................................................ 4. Default Rule ........................................................................................... IV. FORMALITIES........................................................................................................ V. CREDITORS’ RIGHTS ............................................................................................. A. General Creditors ......................................................................................... B. Judicial Sales ............................................................................................... VI. DEVOLUTION ........................................................................................................ A. Present Interests............................................................................................ B. Future Interests............................................................................................. 1. Preceding Interests ................................................................................. 2. Succeeding Interests............................................................................... CONCLUSION: BEYOND UDPIA ...........................................................................

109 112 112 116 123 130 130 132 136 136 137 138 138 138 140 145 148 149 154 154 161 163 163 170 170 175 178

As the births of living creatures at first are ill shapen: so are all innovations, which are the births of time.1

INTRODUCTION In the usual course of events, most persons are inclined to accept any bequests of property that a testator has the good grace to leave them. However nobler it is to give than to receive, receiving also has its charms. Still, some beneficiaries do find occasion to re-

* Professor of Law, Florida State University College of Law. M.A. 1979, J.D. 1982, Ph.D. 1987, Yale University. My thanks to Rob Atkinson, Joseph Dodge, William LaPiana, William McGovern, Jr., and Mary Moers Wenig for helpful comments, and to Brett Horowitz for able research assistance. 1. FRANCIS BACON, THE ESSAYS OR COUNSELS, CIVILL AND MORALL 77 (Christopher Morley ed., Heritage Press 1944) (1597).

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fuse, or “disclaim,” an inheritance. Our law has long regulated a beneficiary’s power to do so. In 1999, the Commissioners promulgated a new Uniform Act covering disclaimers of gratuitous transfers, the Uniform Disclaimer of Property Interests Act (UDPIA).2 Although not the first model act to address the subject, UDPIA does represent the first full-blown effort to rework the law of disclaimers in over twenty years3—and it promises to be a popular product, having gained enactment in its first four states4 and having come under consideration in at least three others.5 Once it is grafted into the Uniform Probate Code (as is imminent),6 UDPIA will in all likelihood proliferate rapidly among the jurisdictions that have already committed themselves to that larger project.7 Much skill and effort go into the assembly of every Uniform Act, and this one is no exception. Ironically, therein lies both its strength 2. UNIF. DISCLAIMER OF PROP. INTERESTS ACT, 8A U.L.A. 32 (Supp. 2000) [hereinafter UDPIA]. The Reporter for the Act was Professor William LaPiana. 3. UDPIA replaces three older Uniform Acts: the Uniform Disclaimer of Property Interests Act of 1978, together with two other Uniform Acts promulgated simultaneously and amalgamated in the first one, the Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act, and the Uniform Disclaimer of Transfers Under Nontestamentary Instruments Act. UNIF. DISCLAIMER OF PROP. INTERESTS ACT, 8A U.L.A. 149 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT, 8A U.L.A. 161 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT, 8A U.L.A. 179 (1978). Prior versions of each of these three acts were first promulgated in 1973. A provision based largely but not entirely on the language of the Uniform Disclaimer of Property Interests Act of 1978 also appears in the Uniform Probate Code. UNIF. PROBATE CODE § 2-801 (amended 1997). This provision is unpacked in S. Alan Medlin, An Examination of Disclaimers Under UPC Section 2-801, 55 ALB. L. REV. 1233 (1992). The Restators have yet to develop a comprehensive judicial framework for disclaimer law. See RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANFERS § 34.2 cmt. d (1992). For earlier model disclaimer statutes, see MODEL PROBATE CODE § 58 (1946), in LEWIS M. SIMES & PAUL E. BASYE, PROBLEMS IN PROBATE LAW (Hessel E. Yntema ed., Univ. of Mich. Press 1946) [hereinafter MODEL PROBATE CODE]; Disclaimer of Testamentary and Nontestamentary Dispositions—Suggestions for a Model Act, 3 REAL PROP. PROB. & TR. J. 131 (1968) (Report of Special Committee of the A.B.A. on Disclaimer Legislation, upon which the original Uniform Acts on disclaimers were substantially based) [hereinafter Suggestions for a Model Act]. 4. HAW. REV. STAT. § 526 (1993 & Supp. 2000); 2001 N.M. Laws ch. 290; 2001 Or. Laws ch. 245; 2001 N.D. Laws ch. 301. 5. Drafting committees in Florida, North Carolina, and Virginia are presently considering the Act. Letter from Richard Gans, esq., to Adam J. Hirsch, Professor of Law, Florida State University (Aug. 11, 2001) (on file with author); Letter from James McLaughlin, esq., to Adam J. Hirsch, Professor of Law, Florida State University (July 10, 2000) (on file with author); Letter from E. Diane Thompson, esq., to Adam J. Hirsch, Professor of Law, Florida State University (Sept. 8, 2000) (on file with author). 6. UDPIA, supra note 2, prefatory note. UDPIA will replace the Uniform Probate Code’s current section on disclaimers of inheritances, wherein the Commissioners acknowledged the need for revision of the existing provision. UNIF. PROBATE CODE § 2-801 prefatory note (amended 1997). 7. Eleven jurisdictions have thus far enacted the revised Article 2 of the Uniform Probate Code, where UDPIA is due to appear. The project comes within the context of an omnibus reappraisal of trusts and estates doctrines currently underway by the model lawmaking bodies. See generally Edward C. Halbach, Jr., Uniform Acts, Restatements, and Trends in American Trust Law at Century’s End, 88 CAL. L. REV. 1881 (2000).

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and its weakness. Skill and effort are supposed to lead toward superiority of design. Naturally, they often do. But because state legislators also engage in this supposition, they tend to adopt a Uniform Act—and may now be inclined to adopt UDPIA—with less thorough review, and with less forethought as to substantive policy, than when they craft a statute from scratch. And that spells trouble. For all their dedication, the Commissioners are, alas, inescapably human and, as a consequence, perfectly fallible. They strive mightily to root out the errors and glitches that have a way of creeping into complex legislation—but creep in they still do. And because Uniform Acts are marketed as models—as templates—they run the risk of blind replication. Very like defective genes, defective Uniform Acts have the potential to spread havoc among the states. Accordingly, it behooves us to take a long, hard, skeptical look at UDPIA—preferably before it becomes widely enacted. That is the task I shall set about in this Article. In so doing, I hope to offer guidance to the Commissioners, who may find occasion to amend their product. More immediately, however, I hope to guide state legislators who are contemplating adopting it. Let me observe, preliminarily, that the participants in the UDPIA project and its gifted Reporter—himself the co-author of a treatise devoted to disclaimer law8—have accomplished much, and they deserve to be praised for a job well done. That said, I have nonetheless found aspects of UDPIA that, in my judgment, invite criticism and revision.9 I shall offer those criticisms in a frank spirit, without sugarcoating, on the assumption that (however distasteful the task) it is better to ventilate one’s objections to an undertaking forthrightly, and surely better not to suppress perceived problems with a Uniform Act.10 Let me emphasize that the problems in this instance are 8. RONALD A. BRAND & WILLIAM P. LAPIANA, DISCLAIMERS IN ESTATE PLANNING: A GUIDE TO THEIR EFFECTIVE USE (1990). 9. The subject of disclaimer law reform is one upon which I have declaimed before. For my prior foray into this field (whose richness has yet to be fully appreciated), see Adam J. Hirsch, The Problem of the Insolvent Heir, 74 CORNELL L. REV. 587 (1989). 10. Commissioners with a professional stake in these products may tend to view the matter differently, and I have been urged in private correspondence to cease and desist from exposés of this kind. Yet, I remain convinced that the task needs doing—and in taking on the part of Uniform Law controversialist, I find myself in superb company. See, e.g., James Barr Ames, The Negotiable Instruments Law, 14 HARV. L. REV. 32 (1900); Arthur Allen Leff, Unconscionability and the Code—The Emperor’s New Clause, 115 U. PA. L. REV. 485 (1967). For my own prior attempts to stir up trouble in the Uniform Probate Code, see Adam J. Hirsch, Inheritance and Inconsistency, 57 OHIO ST. L.J. 1057, 1059, 1161 & passim (1996) [hereinafter Hirsch, Inheritance and Inconsistency]; Adam J. Hirsch, Inheritance Law, Legal Contraptions, and the Problem of Doctrinal Change, 79 OR. L. REV. 527, 568-71, 573 (2000) [hereinafter Hirsch, Legal Contraptions]; Adam J. Hirsch, Trusts for Purposes: Policy, Ambiguity, and Anomaly in the Uniform Laws, 26 FLA. ST. U. L. REV. 913 & passim (1999) [hereinafter Hirsch, Trusts for Purposes]; see also infra note 366 (citing to other critics of the Uniform Probate Code).

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hardly fatal; they do not reach to the heart of UDPIA, which I, for one, am convinced is sound. By and large, it is a matter of tidying up. But legislators who adopt UDPIA verbatim will find themselves saddled with an imperfect product, and they need to reflect before doing so. Before we launch into the critique, one final word as to its structure. This Article is not intended as a comprehensive survey of the virtues and vices of UDPIA. Rather, I view my role as that of troubleshooter, probing a legal product for defects and shortcomings. In the pages following, I shall endeavor to identify and explore the problem areas only, without tarrying long in UDPIA’s greener pastures. Some elements of its treatment of disclaimer law I shall ignore altogether. Readers preferring a more thorough substantive review of UDPIA need seek no further than the already-published explanatory article by its Reporter.11 The present Article is designed to reveal another side of the picture—and thus, perhaps for purposes of overall evaluation (if there is any point in that),12 achieve a kind of balance. In the Conclusion, I will offer some additional thoughts about how Commissioners might in general better approach the law-modeling process, with an eye toward avoiding structural difficulties that have arisen before and that crop up again in connection with UDPIA. I. EXCLUSIVITY A. UDPIA and the Common Law The right to disclaim has deep historical roots in English and American common law, which worked out—albeit in a trickle of cases13—the rules and circumstances under which a beneficiary could decline an inheritance to which she would otherwise succeed.14 Every American jurisdiction today has enacted a disclaimer statute superseding (to a greater or lesser extent) the common law that hitherto

11. William P. LaPiana, Uniform Disclaimer of Property Interests, PROB. & PROP., Jan.Feb. 2000, at 57; see also Richard V. Wellman, New Uniform Act on Disclaimers Compared with Earlier Models and Ohio Legislation, PROB. L.J. OHIO, Mar.-Apr. 2000, at 45. 12. Overall assessment seems largely beside the point, since state legislators need not adopt UDPIA as an all-or-nothing package of provisions. To the extent this Uniform Act represents a mixed blessing, lawmakers can remix it, separating out its problematic aspects and enacting improved, amended versions of UDPIA. 13. As one court put the matter dryly: “There is a paucity of case law on the question before us. The vast bulk of the law of decedents’ estates involves persons attempting to gain a share . . . rather than to divest themselves of their interest.” In re Estate of Burmeister, 594 P.2d 226, 229 (Kan. 1979); see also In re Estate of Fleenor, 17 P.3d 520, 523-24 (Or. Ct. App. 2000); Peckham v. Newton, 4 A. 758, 761 (R.I. 1886). 14. “The right to renounce a devise . . . is a natural one and needs no statutory authorization.” Perkins v. Isley, 32 S.E.2d 588, 590-91 (N.C. 1945). For a brief recitation of the common law history, with particular emphasis on creditors’ rights against the beneficiary, see Hirsch, supra note 9, at 591-96.

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had governed the subject.15 UDPIA would replace these statutes. What then is UDPIA’s relation to the common law? Does it supersede it, or merely supplement it—and to what degree? Here one discovers the single most troubling—and doubtless unintentional16—characteristic of UDPIA. Under previous Uniform Acts addressing the subject, the rights therein created to disclaim an inheritance are nonexclusive, although they do at least partially preempt the common law. What these Uniform Acts indicate is that they do “not abridge the right of . . . person[s] to . . . disclaim . . . property or an interest therein under any other statute.”17 Notice the use of the words not abridge—that is, not subtract from—and the limitation of nonabridgement to other statutes. By negative inference, these Acts do supplant the beneficiary’s common law rights to disclaim an inheritance.18 To the extent, then, that the common law grants rights to disclaim with which these Uniform Acts conflict, they operate to curtail the common law. On the other hand, the language just quoted says nothing about additional restrictions on the right to disclaim, imposed either by statute or by common law. The possibility remains that these Uniform Acts can be interpreted to permit further restrictions on the right to disclaim not expressly contradicted by the Acts’ plain language.19 UDPIA uses different language which, read literally, leads to absurdity. There are three provisions on point. First, UDPIA reproduces a clause long found in many Uniform Acts, stating that “[u]nless displaced by a provision of this [Act], the principles of law and equity supplement this [Act].”20 Although the meaning of this rusty boilerplate is not entirely clear, it appears to receive state 15. The last two bastions of the common law of disclaimer were Mississippi and New Hampshire, which enacted their first disclaimer statutes in 1994 and 1996, respectively. MISS. CODE ANN. § 89-21-1 (1999); N.H. REV. STAT. ANN. § 563-B (1997). 16. As we shall see, a good number of the sequelae of UDPIA that I shall criticize in this Article were inadvertent and hence fall into the category of glitches, as opposed to objectionable policy decisions. 17. UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 6, 8A U.L.A. 149, 157 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 5 & cmt., 8A U.L.A. 161, 176 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 5, 8A U.L.A. 179, 187 (1978); UNIF. PROBATE CODE § 2-801(f) (amended 1997). 18. The point is clarified by a comment: “Being a codification of the common law in regard to the renunciation of the property, the Act is intended to constitute an exclusive remedy for the disclaimer of testamentary successions apart from those provided by other statutes, and supplants the common law right to disclaim.” UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 5 cmt., 8A U.L.A. 161, 176 (1978). The same language appeared in the comment accompanying the original Uniform Probate Code but was dropped from the revised Code, although the text of the revised Code did not change on this point. Compare UNIF. PROBATE CODE § 2-801(f) & cmt. (amended 1997), with UNIF. PROBATE CODE § 2-801(e) & cmt. (West 6th ed. 1983). 19. This inference would be particularly strong within the Uniform Probate Code. See infra note 215. 20. UDPIA, supra note 2, § 4(a). No comment accompanies this section.

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common law into the interstices of UDPIA.21 Second, UDPIA contains a clause somewhat like the one found in the prior Uniform Acts on disclaimer: “This [Act] does not limit any right of a person to . . . disclaim . . . an interest in . . . property under a law other than this [Act].”22 Note well, this clause supplements the rights to disclaim granted by UDPIA with those found in other law, not other statutes (as prior Uniform Acts had done). The word law in its plain meaning,23 and as construed in cases,24 includes both common and statutory law. This standard definition is nowhere contradicted (and, indeed, is elsewhere affirmed) in UDPIA.25 Accordingly, we must conclude that UDPIA creates wholly nonexclusive, safe-harbor remedies—beneficiaries remain free to disclaim whenever that right exists under either UDPIA or the common law. But that is not all. UDPIA also includes a third relevant clause. It reads in its entirety: “A disclaimer is barred or limited if so provided by law other than this [Act].”26 Note well, once again, the text refers to other law, not to other statutory law.27 So, whenever the common law restricts the right to disclaim, that restriction also supplements UDPIA. But what, then, is left of UDPIA? Assembling the three clauses together, one finds that the Act is supplemented both by all further extensions of rights and by all further restrictions of rights—along with all interstitial rights—contained within the common law. Accordingly, one cannot easily avoid the conclusion that nothing is left of UDPIA! The Act proves a mirage: To enact UDPIA is to enact the

21. For a discussion of the history, ambiguities, and prior interpretation of this phrase in earlier Uniform Acts, such as the Uniform Commercial Code and the Uniform Probate Code (and which traces back as far as the Uniform Negotiable Instruments Law of 1896!), see Hirsch, Trusts for Purposes, supra note 10, at 916-17 & n.18. 22. UDPIA, supra note 2, § 4(b). 23. BLACK’S LAW DICTIONARY 889 (7th ed. 1999). 24. E.g., Estate of Dauer v. Zabel, 156 N.W.2d 34, 36-37 (Mich. Ct. App. 1967) (construing the word law as used within a state constitution). 25. See infra note 27. No comment accompanies the provision either to justify it or to clarify its meaning. This interpretation is, however, confirmed by the drafting history of UDPIA and by comments attached to prior drafts. See infra note 28. A number of state disclaimer statutes had long included equivalent (if sometimes more definitive) provisions, e.g., MINN. STAT. ANN. § 525.532(c)(8) (West 1975 & Supp. 2001) (“This section shall not abridge the right [to disclaim] . . . under any existing or future statute or rule of law.”), which I have criticized on a prior occasion. Hirsch, supra note 9, at 597-98 & n.55. For cases applying one of those nonexclusive statutes and giving effect to disclaimers under the common law that would have been invalid under the letter of the statute had it operated exclusively, see In re Estate of Stephens, 676 N.Y.S.2d 422, 427-29 (Sur. Ct. 1998); Will of Heffner, 503 N.Y.S.2d 669, 669-70 (Sur. Ct. 1986); Estate of Von Ripper, 408 N.Y.S.2d 686, 689-90 (Sur. Ct. 1978). 26. UDPIA, supra note 2, § 13(e). 27. Here, the accompanying comment implies incontrovertibly that the word law refers, inter alia, to case law, for bars established by cases (where creditors’ claims were at issue) are offered by way of illustration. See id. § 13 cmt.

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common law. A state that replaces its existing disclaimer statute with UDPIA will unknowingly decodify its law on that subject. Needless to say, this last point is proclaimed tongue in cheek. Decodification cannot possibly have been the intention of the drafters of this extensive Uniform Act. Manifestly, the language comes as a result of imperfect drafting, some of it performed at the eleventh hour.28 Deceptively innocuous, these provisions occasioned no recorded debate among the Commissioners.29 When the plain language of a statute is absurd, such as by rendering the statute meaningless or superfluous, the canons of construction dictate that we must construe it in a way that avoids the absurdity.30 In the instant case, we can, with only slight embellishment, construe the last-mentioned clause to mean that “[a] disclaimer is

28. The provision for interstitial supplementation of the act with common law, see supra note 20 and accompanying text, did not appear in the draft submitted for approval in 1999 and was only then added into the draft approved at the 1999 Conference of Commissioners. Compare UNIF. DISCLAIMER OF PROP. INTERESTS ACT (Draft for Approval 1999), with UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 14 (Approved Draft 1999). The first two drafts of UDPIA expressly abolished the common law right of disclaimer; only additional statutory rights of disclaimer and statutory bars on disclaimer were acknowledged under these drafts. UNIF. DISCLAIMER OF PROP. INTERESTS ACT §§ 11(b), 12 (Discussion Draft 1995); UNIF. DISCLAIMER OF PROP. INTERESTS ACT §§ 14(b), 15 (Discussion Draft 1996). The provision abolishing common law disclaimer was then stricken from the third draft and provisions acknowledging both rights to disclaim and bars on disclaimer arising out of other law, not merely statutory law—equivalent to the language found in the final, approved version of UDPIA— appeared for the first time. UNIF. DISCLAIMER OF PROP. INTERESTS ACT §§ 2(e), 9(b) (Discussion Draft 1997). This linguistic change was intentional, but went without explanation. The accompanying draft comment stated simply that the wording “broadens the provisions of prior Uniform Acts to preserve the right to disclaim under any other law.” Id. § 2 cmt.; see also id. § 9 cmt. Another note accompanying UDPIA may allude to this provision when it asserts that the Act “is designed to allow every sort of disclaimer . . . . In short, the new Act is an enabling statute.” UDPIA, supra note 2, prefatory note. 29. At the second plenary reading of UDPIA, the chairperson stated that “These are fairly standard provisions.” PROCEEDINGS OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT, PROCEEDINGS OF THE COMMITTEE OF THE WHOLE 93 (July 23-30, 1999) [hereinafter Plenary Reading, 1999]. At the first reading of the Act, Commissioners had indicated that a provision incorporating bars on disclaimer under local statutory and common law was necessary in order to receive into UDPIA each state’s individual rule concerning the permissibility of disclaimer by an insolvent beneficiary—an issue which in some jurisdictions has been resolved by case law. PROCEEDINGS OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT, PROCEEDINGS OF THE COMMITTEE OF THE WHOLE 41-42, 76-77 (July 24-31, 1998) [hereinafter Plenary Reading, 1998]. Without question, that was the intended purpose of the provision. See UDPIA, supra note 2, § 13 cmt. (indicating that the provision gives effect to the local law of disclaimer to avoid creditors’ claims and related sorts of liability); see also Plenary Reading, 1998, supra, at 87 (comment by the Reporter); infra Part V.A. The difficulty, however—as we shall see—is that the expansive language of the provision has additional implications that the Commissioners failed to appreciate. And the same is true of the safe-harbor provision allowing a beneficiary to disclaim under the common law, as we shall also see. 30. 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 46:06, at 181-86, 190-92, § 46:07, at 194-99 (6th ed. 2000).

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barred or limited if so provided by law other than this [Act],”31 so long as any such bar or limit does not conflict with rights to disclaim expressly created by this Act. This interpretation appears true to the meaning of the drafters. And, so construed, UDPIA’s impact is no longer vanishingly small. The difficulty, however, is that it is still plainly, and painfully, smaller than UDPIA’s drafters intended it to be. We are not out of the woods yet, as we shall presently see.32 B. UDPIA and the Internal Revenue Code UDPIA also stands beside, and interacts with, the Internal Revenue Code. One of the cardinal virtues of disclaiming is that it can serve to save taxes within a family. By consulting the will or the intestacy statute, a beneficiary can predetermine who will take in her place should she choose to disclaim—often a close relative.33 Assuming she has ties of benevolence to that person, she may calculate that a direct transfer from the benefactor to that alternative beneficiary, accomplished via a disclaimer, is from the standpoint of the family as a whole more tax efficient than, and possibly therefore preferable to, the transfer that would otherwise occur from the benefactor to herself.34 This prospect raises an immediate question of public policy: Why, we may fairly ask, should lawmakers give effect to a disclaimer executed for no other reason than to deprive the government of tax revenues? The common law of disclaimer first developed in Great Britain to stymie renunciations of inheritance that would have operated to deprive medieval tax collectors of relivium (or relief)—the 31. UDPIA, supra note 2, § 13(e). 32. But cf. Medlin, supra note 3, at 1276 n.266 (briefly suggesting in connection with the Uniform Probate Code’s disclaimer provision that “[W]hether supersession or supplementation is preferable depends on which policy a legislature follows: Increased certainty of proving effective disclaimers versus the freedom of the disclaimant to refuse acceptance”). 33. On the devolution of disclaimed property, see infra Part VI. 34. For discussions of the use of disclaimers in tax planning, see BRAND & LAPIANA, supra note 8, at 121-55; LAWRENCE NEWMAN & ALBERT KALTER, POSTMORTEM ESTATE PLANNING 1-29 (2d ed. 1993); MARY MOERS WENIG, TAX MANAGEMENT, ESTATES, GIFTS, AND TRUSTS: DISCLAIMERS, at A-8 to A-20 (Tax Management Portfolio No. 848, 1992); JOHN R. PRICE, ON CONTEMPORARY ESTATE PLANNING § 12.33-.37 (2d ed. 2000); Jeff Y. Bae & David M. Maloney, Disclaimers: The Last Line of Defense When Wrestling with Estate Planning Problems, TR. & EST., Dec. 2000, at 40; Virginia F. Coleman, Disclaimers—New Developments, Opportunities and Unsettled Areas, 33 INST. ON EST. PLAN. 15-1 (1999); Shannon M. Connelly, Constructing Qualified Disclaimers, PROB. & PROP., July-Aug. 1997, at 47; Kenneth A. Hansen, Disclaiming Joint Marital Property to Fund a Deceased Spouse’s Unified Estate Tax Credit, TAXES, Sept. 2000, at 39; Don W. Llewellyn et al., Disclaimers by a Surviving Spouse: The Trend of Increased Opportunities for Post Mortem Tax Planning Continues, 35 REAL PROP. PROB. & TR. J. 1 (2000); Bruce D. Steiner, Disclaimers: Post-Mortem Creativity, PROB. & PROP., Nov.-Dec. 1990, at 43; Conrad Teitell, Disclaimers: A Wise Estate Planning Tool, TR. & EST., May 2000, at 73.

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feudal incident payable by the heir at each generation upon intestate succession to real property. Only later, after the feudal incidents were abolished, did British courts come to allow disclaimers by devisees, for the very different purpose of permitting beneficiaries to escape bequests that might be “clothed in trust,” or otherwise entail burdensome responsibilities.35 In spite of this history, American courts almost universally have extended the right of disclaimer to cases in which the disclaiming party was motivated by tax considerations—with scarcely a word about public policy—on the theory that tax statutes have failed to preclude this legal stratagem.36 Considered theoretically, the issue has (at least) two sides.37 Examined from the perspective of the beneficiary, granting a right of

35. Townson v. Tickell, 106 Eng. Rep. 575, 576-77 (K.B. 1819). Prima facia, every estate . . . is supposed to be beneficial to the party to whom it is so given. Of that, however, he is the best judge, and if it turn out that the party to whom the gift is made does not consider it beneficial, the law will certainly . . . allow him to renounce or refuse the gift. Id. at 577. The rule forbidding an heir to renounce an inheritance developed prior to the Statute of Wills (1540), making land devisable for the first time, and the rule remained in effect even after the abolition of the feudal incidents, and even after courts began to allow a devisee (by comparison) to disclaim. On the common law history, see Hirsch, supra note 9, at 591-92; Christian M. Lauritzen, Jr., Only God Can Make an Heir, 48 NW. U. L. REV. 568, 569-73 (1953). The feudal incidents were abolished upon the Stuart Restoration in 1660. J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 218 (2d ed. 1979). 36. In re Wolfe’s Estate, 85 N.Y.S. 949, 953 (App. Div. 1903). There need be no reasonable apprehension that the . . . government will be seriously embarrassed by renunciations of legacies made in evasion of the law; but, aside from that consideration, it must be borne in mind that the judicial function is essentially expository, and not creative, and that the Legislature can readily provide against the possibility of such evasion if existing laws are not deemed adequate. Id.; see also Brown v. Routzahn, 63 F.2d 914, 916-17 (6th Cir. 1933); In re Bute’s Estate, 49 A.2d 339, 341-42 (Pa. 1946); Bouse v. Hull, 176 A. 645, 646-48 (Md. 1935); Tax Comm’n of Ohio v. Glass, 164 N.E. 425, 426 (Ohio 1928); People v. Flanagin, 162 N.E. 848, 851 (Ill. 1928); In re Stone’s Estate, 109 N.W. 455, 457 (Iowa 1906). 37. Dominion theory provides a third perspective on the problem: The fact that the taxpayer has the power (by not disclaiming) to capture the bequeathed property could be deemed definitive of ownership for tax purposes, although the fact that the taxpayer does not control the devolution of any property that she chooses to disclaim could just as well be considered definitive of nonownership. Precisely the same compound of power-to-capture and lack-of-controlover-devolution exists in the case of a general power of appointment which the holder of the power declines to exercise—it too could have been captured and now goes instead to whomever the benefactor had decreed to be the taker in lieu of appointment. Although under the Internal Revenue Code an unexercised power is deemed to be owned by the holder of the power, disclaimed property is deemed not to be owned by the disclaimant. Compare I.R.C. § 2041(a)(2) (1989) with id. § 2518(a). Dominion theory suggests that these results are inconsistent—an inconsistency rendered all the more dramatic by the law’s acknowledgment that the holder of a power of appointment can disclaim the power, rather than accept and not exercise it, and thereby avoid ownership! Treas. Reg. § 20.2041-3(d)(6) (1982). This still leaves us to determine, however, whether tax policy demands consistent treatment of property interests from the standpoint of dominion theory and, assuming so, which element(s) of dominion ought to define ownership. For a discussion of this problem in a related context, see Hirsch, supra note 9, at 605-10; cf. Walter E. Black, Jr., The Effect of Renunciations and Compromises on Death and

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disclaimer to reduce taxes appears to disserve the cause of vertical equity, for only the relatively affluent beneficiary could afford to avail herself of that right, whatever the tax benefits.38 On the other hand, from the perspective of the benefactor, a right of disclaimer promotes vertical, as well as horizontal, equity: For a postmortem disclaimer accomplishes nothing more in the way of tax avoidance than the benefactor could have achieved by more careful pre-mortem estate planning, which may have been inaccessible either due to the high cost of counsel or because of sudden infirmity.39 A disclaimer can thus be said to uphold what one scholar has dubbed the principle of “equal planning under the law”40—a principle also reflected within a host of other modern trusts and estates doctrines.41 From a structural perspective, at any rate, all of this is beside the point. The decision to acknowledge vel non the effectiveness of a disclaimer for purposes of federal taxation lies exclusively within the jurisdiction of Congress, which has expressed its will on the subject in the Internal Revenue Code.42 State disclaimer statutes—and UDPIA—can speak only to the substantive effectiveness of a disclaimer for purposes of local law; they cannot intrude on the issue of

Gift Taxes, 3 VAND. L. REV. 241, 269 (1950); John H. Martin, Perspectives on Federal Disclaimer Legislation, 46 U. CHI. L. REV. 316, 357-59 (1979). 38. On this basis, one commentator argues that disclaimers should be ineffective per se under the Internal Revenue Code and treated instead as subsequent transfers for federal tax purposes. Martin, supra note 37, at 362-69. Historically, several state inheritance tax statutes have taken this approach. Id. at 320 n.15. 39. On this basis, Professor Halbach advocates a liberal approach to tax-motivated disclaimers: The present [tax] rule unduly restricts postmortem clean up and places an unwarranted and unrealistic demand for wills to be perfected and updated before a testator’s death. Most graphically, the objectionable net effect of the [tax rule] is to require that a seriously ill property owner see his lawyer before seeing his doctor if his family is to receive the same treatment that under our tax policies is perfectly permissible for other families through an updated will. Edward C. Halbach, Jr., Curing Deficiencies in Tax and Property Law: Effects on Justice and Legal Service Costs, 65 MINN. L. REV. 89, 120 (1980). 40. Mary L. Fellows, In Search of Donative Intent, 73 IOWA L. REV. 611, 613 (1988). I remain skeptical, however, that the Supreme Court will discover this principle within the emanations of the penumbra of the Fourteenth Amendment. 41. In the same spirit, the Restators advocate allowing the court itself, with still greater flexibility, to reform defective estate plans so as to carry out the testator’s intent to minimize taxes. RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANSFERS § 12.2 & cmt. b (Tentative Draft No. 1, 1995). A number of courts have claimed this power. For a recent example, see In re Estate of Tuthill, 754 A.2d 272 (D.C. 2000). Whether the power will be acknowledged in turn by the Tax Commissioner is, however, very far from clear. See David R. Hodgman & David C. Blickenstaff, Judicial Reformation of Trusts—The Drafting Tool of Last Resort, 28 EST. PLAN. 287, 289 (2001). 42. I.R.C. § 2518 (1989). A disclaimer deemed effective for purposes of federal estate taxation is known technically (if obscurely) as a “qualified disclaimer.” Hereinafter, I shall refer to a qualified disclaimer as a “tax-qualified” disclaimer, on the assumption that this phraseology will be clearer to most readers, even if it offends a few aficionados.

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whether a disclaimer is tax-qualified. What, then, should be the relationship between these two, parallel bodies of rules? In theory, there need be none: The substantive ramifications and the tax ramifications of estate planning choices often differ under the law,43 and because the public policies underlying each of these spheres is distinct, one finds no structural reason legally to conjoin them.44 Indeed, Congress enacted the modern Internal Revenue Code provision on disclaimers, § 2518, to ensure, inter alia, that “a refusal to accept property . . . [will] be given effect for federal estate and gift tax purposes even if the applicable local law does not technically characterize the refusal as a ‘disclaimer’ . . . .”45 Vice versa, the drafters of UDPIA recognize that “disclaimers can be used for more than tax planning.”46 Their explicit aim was “to allow every sort of disclaimer, including those that are useful for tax planning purposes.”47 In the end, however, the drafters take an inconsistent approach to the structural independence of UDPIA, “decoupl[ing]”48 the Act from the tax code in some respects—notably in connection with its time limit (on which, more later)49—while simultaneously “coordinat[ing]”50 UDPIA with the code in other respects. One provision of the second sort governs disclaimers of jointly held property.51 This provision responds to new Treasury Regulations issued in 199752 (following which, the discussion drafts of UDPIA were amended).53 As the Reporter observes, the section “was drafted 43. Thus, for example, revocable “living” trusts are treated as complete transfers upon their creation for substantive purposes but as incomplete transfers until death for tax purposes. Compare UNIF. PROBATE CODE § 6-101 (amended 1998), with I.R.C. § 676(a) (1988). For another area of trust law in which this same duality exists, see Adam J. Hirsch, Bequests for Purposes: A Unified Theory, 56 WASH. & LEE L. REV. 33, 49-50 (1999). 44. The point is noted in Grayson M.P. McCouch, Timely Disclaimers and Taxable Transfers, 47 U. MIAMI L. REV. 1043, 1045 (1993). 45. H.R. REP. NO. 94-1380, at 67 (1976). 46. UDPIA, supra note 2, prefatory note. 47. Id. (emphasis added). 48. Id. 49. See infra Part II. 50. UDPIA, supra note 2, § 14 cmt. 51. For prior Uniform Acts on point, see UNIF. PROBATE CODE § 2-801(b)(3) (amended 1997); UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 2(d), 8A U.L.A. 149, 153 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 1, 8A U.L.A. 179, 181 (1978). For case law, see id. § 1 cmt., at 182-83; Prod. Credit Ass’n v. Mater, 8 P.3d 1274, 1280-81 (Kan. Ct. App. 2000); UDPIA, supra note 2, § 7 cmt.; WILLIAM M. MCGOVERN, JR., ET AL., WILLS, TRUSTS AND ESTATES § 2.5, at 82-83 (1st ed. 1988) (in the 1st ed. only). For criticism of the Uniform Probate Code’s provision, see Grayson M.P. McCouch, Will Substitutes Under the Revised Uniform Probate Code, 58 BROOK. L. REV. 1123, 1171-72 (1993); Medlin, supra note 3, at 1270-71. 52. Treas. Reg. § 25.2518-2(c)(4), (c)(5) (as amended in 1997). For discussions of those Regulations, see Coleman, supra note 34, at 16-17 to 16-19; Hansen, supra note 34, at 39. 53. For the original provision, included in a discussion draft of UDPIA issued prior to the appearance of the new Regulations, see UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 10 (Discussion Draft 1996).

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to allow every sort of qualified disclaimer of jointly held property possible under the Treasury Regulations.”54 In this instance, by the drafters’ own admission, the tax tail wagged the legal dog. Whether that was an appropriate course can be questioned: Tax policy and substantive disclaimer policy are not one and the same; and the substantive rules of UDPIA govern all disclaimers of joint tenancies, irrespective of whether the estates in question are sizable enough to implicate estate taxation. What is more, in their eagerness to ensure that any tax-qualified disclaimer of jointly held property would take effect under UDPIA, the drafters went overboard, promulgating a provision that transcends the limits of the Treasury Regulations. Under UDPIA, a joint tenant can disclaim either the decedent’s equal fractional share of the jointly held property55 or all of the jointly held property other than the part contributed by the disclaimant, whichever is greater.56 The Regulations, however, are more refined. Following local law,57 the Regulations allocate jointly held property by net contribution in the case of joint bank (and other investment) accounts, but generally by equal shares in the case of joint tenancies in real property, on the theory that an inter vivos gift equalizing ownership has already occurred.58 UDPIA’s failure to take account of local law in this connection is troubling. Assume for the sake of argument that UDPIA allows insolvent beneficiaries to disclaim property.59 Under the foregoing provision, an insolvent who had contributed all of the funds in a joint bank account could still, upon the death of the other joint tenant, disclaim one-half of the account, despite the fact that creditors of the insolvent could have levied execution against the entire joint account prior to the death of the other joint tenant. By the same token, an insolvent who had contributed nothing to a joint interest in real property could effectively disclaim the entire joint interest under UDPIA, despite the fact that creditors of the insolvent could have reached 54. LaPiana, supra note 11, at 58; see also UDPIA, supra note 2, § 7 cmt. (“These developments in the tax law of disclaimers are reflected in [§ 7].”). 55. That is to say, the share “determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates.” UDPIA, supra note 2, § 7(a)(1). In a typical joint tenancy of husband and wife, the fractional share is one-half of the jointly held property. 56. Id. § 7(a). 57. For a discussion, see JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 325-46 (3d ed. 1993). 58. Treas. Reg. § 25.2518-2(c)(4)-(5) (as amended in 1997). For a minor exception to the real property rule, see infra note 62. Under these Regulations, the tax consequences of disclaiming an interest in a joint bank account can depend on whether the account was or was not a joint account of U.S. citizen spouses. Treas. Reg. § 25.2518-2(c)(5), exs. 12-14 (as amended in 1997). 59. Which it very well may. See infra Part V.A.

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one-half of the joint interest prior to the death of the other joint tenant (assuming it was not a tenancy by the entirety).60 The only conceivable reason one might adduce for such a rule is that it offers disclaimants a choice between a simple procedure for establishing their interest in a joint tenancy and cumbersome tracing—but whether that is reason enough is very far from clear.61 The drafters of UDPIA, at any rate, make no such claim; the only justification they advance for the provision is the assurance it provides that all tax-qualified disclaimers are substantively effective.62 Coordination with the local law of joint ownership would have better served public policy. UDPIA also includes a broader provision, creating another—as it were, federal—safe harbor: “if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the [Internal Revenue Code], as now or hereafter amended, . . . and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer” under UDPIA.63 At a theoretical level, this provision is impure. It delegates authority to establish the substantive validity of a disclaimer to two federal bodies—Congress (responsible for the Code) and the Treasury Department (which issues the Regulations)—whose sole concern in the matter is tax policy. The drafters’ purpose in so doing was to ensure that “[a]ny disclaimer which is qualified for estate and gift tax purposes is a valid disclaimer under this Act even if it[ ] does not otherwise meet the Act’s more specific requirements.”64 Once again, given the disconnection between substantive disclaimer policy and tax policy, this purpose is conceptually dubious. But the instant provision is doubly dubious, in that (again) it overshoots its stated goal: Under UDPIA, any disclaimer that satisfies the substantive accessories of the tax code is valid, even if the disclaimer at issue has no tax 60. Permissible in some states, a tenancy by the entirety in a husband and wife is not unilaterally severable and hence is exempt from creditors’ claims against one party, so long as both parties are alive. DUKEMINIER & KRIER, supra note 57, at 327, 375. 61. The potential for manipulation—whereby an insolvent might establish and fully fund a joint account with a terminally ill family member in order to disclaim half of the account in short order, without thereby making a fraudulent conveyance—is particularly troubling here. Such a disclaimer could not even be challenged on the ground of actual fraud, because under UDPIA “[a] disclaimer . . . is not a transfer.” UDPIA, supra note 2, § 5(f). 62. See supra note 54 and accompanying text. The drafters’ decision to unify the treatment of disclaimers of joint interests in real property and bank accounts may well have stemmed from the fact that the Regulations do treat joint tenancies in real property like a joint account in one minor instance: Where the disclaimant was married to the deceased joint tenant, was not an American citizen, and the interest was created after July 14, 1988. Treas. Reg. § 25.2518-2(c)(4)(ii) (as amended in 1997). See UDPIA, supra note 2, § 7 cmt. (pointing out that UDPIA was drafted to allow the disclaimant to take advantage of this Regulation). 63. UDPIA, supra note 2, § 14. A few states have similar provisions. E.g., CAL. PROB. CODE § 295 (West 1991). 64. UDPIA, supra note 2, § 14 cmt.

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implications.65 Such a delegation is not even defensible as a unifying measure. What is more, UDPIA’s delegation extends explicitly to subsequent amendments to the Internal Revenue Code and its Regulations. Any state that signs on to UDPIA is simultaneously signing a legislative blank check. In practice, however, this provision is likely to be of small consequence.66 Given the priority of generating revenue, Congress has not set, and is not about to set, substantively licentious standards for a tax-qualified disclaimer; and in the improbable event that Congress were to relax its current standards, state legislators could respond by canceling their blank check. Furthermore, despite Congress’s intent to sever the tax code from the moorings of local law,67 it has never done so completely. In some respects, the validity of a disclaimer for tax purposes still hinges on its validity under state law68 (and hence, in an adopting state, under UDPIA); and, to that extent, UDPIA’s provision recognizing any disclaimer that satisfies § 2518 dissolves into a superfluous circularity.69

65. It is not absolutely clear that this extension was intended, but nothing in the language of § 14 restricts its application to transfers that would be subject to tax unless the disclaimer at issue were tax-qualified. See supra text accompanying note 63; cf. infra note 79 (citing to prior Uniform Acts that, in a related context, included language explicitly making special provisions for disclaimers with tax consequences). But compare a comment by the Reporter for UDPIA: “Section 14 is perhaps the most important part of the UDPIA because [it] in some ways makes the rest of the UDPIA unnecessary, at least for disclaimers intended to be qualified for tax purposes.” Memorandum from William LaPiana for ABA Presentation 20 (July 10, 2000) (on file with author) [hereinafter LaPiana, Memorandum]. 66. But cf. LaPiana, Memorandum, supra note 65, at 20, quoted supra note 65. 67. Prior to the enactment of § 2518 in 1976 (and as still concerns taxable transfers made prior thereto), a disclaimer was ineffective for tax purposes unless it was effective in all respects under local law. Treas. Reg. § 25.2511-1(c)(2) (as amended in 1986). Legislative history indicates that Congress enacted § 2518, inter alia, in order to develop a uniform law of taxqualified disclaimers, unfettered by local law. H.R. REP. NO. 94-1380, at 66-67 (1976). Still, § 2518 requires that, in order to be tax-qualified, a disclaimer must pass property to the alternative beneficiary “without any direction on the part of the [disclaimant]”—which can only occur if the disclaimer actually takes effect under local law. I.R.C. § 2518(b)(4) (1989). So, in a second bid to achieve tax uniformity, Congress amended § 2518 in 1981 to treat as tax-qualified a directed transfer that meets requirements “similar to” those set out in federal disclaimer law, but that, because it fails to meet local requirements, cannot qualify as a disclaimer under local law—so long as the directed transfer is to the same alternative beneficiary who would have taken if the disclaimer had been effective under local law. Id. § 2518(c)(3). Disclaimers made under § 2518(c)(3) are known as “transfer disclaimers.” 68. For example, the question of whether a disclaimer that thwarts creditors is taxqualified continues to turn on its effectiveness under local law. Treas. Reg. § 25.2518-1(c)(2) (as amended in 1997). For discussions observing lingering uncertainties regarding the extent of federal concessions to local law, see BRAND & LAPIANA, supra note 8, at 108-15; WENIG, supra note 34, at A-55 to A-56; Coleman, supra note 34, at 16-29 to 16-31; Joan B. Ellsworth, On Disclaimers: Let’s Renounce I.R.C. Section 2518, 38 VILL. L. REV. 693, 744-49 (1993). 69. But cf. infra notes 105-06 and accompanying text.

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II. TIMELINESS Easily the most striking departure of UDPIA involves the time limit for disclaiming. The Internal Revenue Code requires beneficiaries who seek to make a tax-qualified disclaimer to refuse the inheritance no later than nine months after the death of the benefactor.70 As currently drafted, the Uniform Probate Code mirrors this deadline imprecisely, requiring beneficiaries to refuse inheritances of present interests in property within nine months, but establishing a separate deadline for disclaimers of contingent interests.71 UDPIA, on the other hand, fixes no deadline whatsoever for making a disclaimer.72 In this respect, the Commissioners quite deliberately distinguished UDPIA from the tax rules of § 2518.73 The drafters’ justification for this decision is to “reduce confusion.”74 Because rules establishing the time limit for a disclaimer under the Uniform Probate Code bore only a superficial resemblance to those found in the tax code, UDPIA’s drafters conceive them to lay “a trap” for the unwary attorney.75 By eliminating all mention of any time limit in UDPIA, they aim “clearly [to] signal the practitioner that the requirements for a tax qualified disclaimer are set by different law.”76

70. I.R.C. § 2518(b)(2)(A) (1989). In the case of beneficiaries who are still minors following this nine-month period, the deadline is extended until the day they attain the age of twentyone. Id. § 2518(b)(2)(B). A small possibility exists that courts will construe § 2518 to permit transfer disclaimers delayed beyond nine months. By its plain language, § 2518 requires that a transfer disclaimer comply with requirements that are (merely) “similar to” those found in its subsection setting the nine-month time limit. Id. § 2518(c)(3). Nevertheless, no such interpretation is supported by the legislative history or United States Treasury Department rulings or memoranda. S. REP. NO. 97-144, at 142 (1981); H.R. CONF. REP. NO. 97-215, at 255-56 (1981); H.R. REP. NO. 97-201, at 190-91 (1981); see also H.R. REP. NO. 105-148, at 1387-88 (1997); Tech. Adv. Mem. 96-10-004 (Mar. 8, 1996); Priv. Ltr. Rul. 94-37-042 (Sept. 16, 1994); Priv. Ltr. Rul. 91-35-043 (Aug. 30, 1991). 71. UNIF. PROBATE CODE § 2-801(b) (amended 1997). Likewise other antecedent Uniform Acts. UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 2(a), 8A U.L.A. 149, 152 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 2(a), 8A U.L.A. 161, 169 (1978); cf. UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 2(a) & cmt., 8A U.L.A. 179, 184 (1978). 72. UDPIA is not the first disclaimer statute to take this approach. The Model Probate Code did not refer to a time limit, and neither do several existing state statutes. MODEL PROBATE CODE, supra note 3, § 58; e.g., 755 ILL. COMP. STAT. 5/2-7 (West 1992). One state statute declares the proposition affirmatively: “A disclaimer may be made at any time before acceptance.” 20 PA. CONS. STAT. § 6206(a) (1975 & Supp. 2000). 73. UDPIA, supra note 2, prefatory note. See also UNIF. DISCLAIMER OF PROP. INTERESTS ACT prefatory note (Discussion Draft 1997) (“This provision . . . magnifies the difference between the property law of disclaimers and the tax law pertaining thereto. Not every disclaimer, however, is made for tax purposes, and this Act allows the greatest possib[le] flexibility for non-tax qualified disclaimers.”). 74. UDPIA, supra note 2, prefatory note. 75. Id. 76. Id.

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One may question briefly whether this rationale is the most persuasive one that can be announced on UDPIA’s behalf. Have the Commissioners here truly identified a problem—and, assuming so, a solution? Estate planners are pretty well aware that the federal tax code fails to correspond in all respects with state law. If they harbor any doubts in the matter, the comment accompanying the Uniform Probate Code provision on disclaimers makes a point of highlighting the disparity.77 What is more, one might suppose that any estate planner credulous enough to assume parallelism would likewise entertain the notion that if UDPIA contains no time limit for a disclaimer, then the tax code must not either. In this respect, the pitfall (such as it is) identified by the Commissioners appears, if anything, to be widened by their product. Surely, a better way to cover over this pitfall would be to write into UDPIA a time limit that coincides precisely with the one established by § 2518. In that event, no possible confusion could ever result. A few existing state statutes take this approach,78 and prior Uniform Acts adopted a strategy very like it.79 But that would have been a bad idea; one can, in fact, justify UDPIA’s innovation with more cogent arguments than the one offered up by the Commissioners. Put aside the quirky notion of the naïve professional, and consider the all-too-common spectacle of the naïve, uncounseled beneficiary. A layperson contemplating a disclaimer is unlikely to consult either state statutes or the Internal Revenue Code, so inconsistencies between them should rarely lead her astray. Rather, the benefit of UDPIA’s innovation is one of simplification: By eliminating the time limit found in the Uniform Probate Code and other prior Uniform Acts, the Commissioners increase the probability that the beneficiary will disclaim effectively, at least for purposes of state law.80 Because better-heeled beneficiaries are more likely to retain counsel, and hence to comply with any formal requirements that legislators lay down, UDPIA’s innovation func77. UNIF. PROBATE CODE § 2-801 cmt. (amended 1997). It should be noted that there may be a discrepancy between the time allowed for filing a disclaimer under this section . . . and the time allowed for filing a qualified disclaimer under the Internal Revenue Code § 2518. Lawyers are cautioned to check both the state and federal disclaimer statutes before advising clients . . . . Id. 78. E.g., TENN. CODE ANN. § 31-1-103(b) (1984 & Supp. 2000). 79. Under the text of the original Uniform Disclaimer of Property Interests Act of 1978 and related Uniform Acts, any disclaimer intended to be tax-qualified had to comply strictly with the time limit of § 2518, but otherwise did not. UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 2(c), 8A U.L.A. 149, 153 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 2(a) prefatory note, 8A U.L.A. 161, 163, 169 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 2(a), 8A U.L.A. 179, 184 (1978). 80. Of course, there is nothing the Commissioners can do about the complexities of compliance with the Internal Revenue Code.

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tions (once again) to place all estate plans on a more equal legal footing.81 In addition, a will contest—or simply delays in discovering and probating a will (or a will-substitute)—can prolong determination of the dispositive estate plan beyond any death-triggered deadline for disclaimer by the beneficiaries.82 Still and all, these considerations might have to yield to substantive justifications for a time limit, were those manifest. But they are not. Within the tax sphere, a short deadline on disclaimers serves the purpose of maintaining the fiscal integrity of the estate tax, by ensuring that the beneficiary’s opportunity to engage in postmortem tax planning does not exceed those that the benefactor could have exploited at the time of death.83 But the policies extant within that sphere need not guide us when we establish substantive disclaimer law at the state level.84 Non-tax rationales for a deadline on disclaimers, articulated or hinted at by courts and commentators over the years, fail to stand up to analysis. One phantom policy can be dismissed out of hand: “The justification . . . consists . . . of the fact that the failure to make a reasonably prompt disclaimer . . . is an implicit acceptance. Qui tacet, consentire videtur [the silence of a party implies consent].”85 Yet, the behavior that signals “acceptance,” either implicitly or explicitly, depends entirely on the law’s own dictates: The later the deadline, the longer silence can persist without implying anything!86 Law, then, 81. See supra notes 39-40 and accompanying text. 82. WILLIAM M. MCGOVERN, JR. & SHELDON F. KURTZ, WILLS, TRUSTS AND ESTATES § 2.8, at 77 (2d ed. 2001); Wellman, supra note 11, at 46; see also infra note 87. For a recent case in which a will contest caused an attempted disclaimer to be delayed for some twenty-three years, see In re Estate of Hamill, 866 S.W.2d 339, 341-42, 344 (Tex. App. 1993). 83. United States v. Irvine, 511 U.S. 224, 234-36, 240 (1994) (Souter, J.). While a decision to disclaim even at the earliest opportunity may be made with appreciation of potential estate tax consequences, the passage of time puts the prospective disclaimant in a correspondingly superior position to determine whether her need to enjoy the property . . . outweighs the favorable estate and gift tax consequences of a disclaimer. Id. at 235; see also Jewett v. Comm’r, 455 U.S. 305, 316 n.17 (1982); Gahagan v. Whitney, 194 N.E. 581, 582 (Ill. 1935); McCouch, supra note 44, at 1054-55; supra note 39 and accompanying text. 84. See supra notes 43-47 and accompanying text. 85. Irvine, 511 U.S. at 242 (Scalia, J., concurring); see also Strom v. Wood, 164 P. 1100, 1102 (Kan. 1917) (“[Acceptance] being the sensible and practical presumption, it would naturally be expected that if the devisee should desire to renounce he would do so at least within a reasonable time.”); In re Wilson’s Estate, 83 N.E.2d 852, 857 (N.Y. 1949) (Fuld, J., dissenting) (“[T]hat power to renounce may be lost after passage of time [is] another way of saying that an acceptance had occurred.”). 86. Possibly in the absence of law, social norms would establish some benchmark for implied acceptance. Respecting preexisting norms within the law avoids the short-term confusion that could follow when lawmakers deviate from those norms. But any change in the law confounding prior legal or normative expectations will entail secondary transition costs. For discussions of this problem in other contexts, see Hirsch, Inheritance and Inconsistency, supra note 10, at 1088 n.88, 1109 & n.154; Hirsch, Legal Contraptions, supra note 10, at 532-33;

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sets the standard, and the only relevant question is whether allowing a beneficiary to postpone the decision to disclaim does anyone any harm. But the argument ventured here is not tied to any notion of utility; and, wanting such a foundation, it collapses into tautology. A second, more substantial argument sometimes made for a deadline on disclaimers is the imperative to settle decedents’ estates expeditiously.87 If beneficiaries procrastinate over the question of whether or not to accept an inheritance, the personal representative will have to hold the estate open until they come to a decision.88 Yet, on reflection, the costs thereby occasioned appear inconsequential, for the personal representative can proceed with dispatch to distribute the balance of the estate; the only persons inconvenienced by the delay are the undecided beneficiaries themselves. And when the cost of further delay outweighs the benefit of indecision, then presumably they will make their election.89 The final argument sometimes made for a time limit on disclaimers is the need to protect creditors’ rights.90 One can, of course, debate the issue of whether beneficiaries should have any right of disclaimer to the detriment of creditors; we shall return to that subject directly.91 Assuming, however, that lawmakers do grant beneficiaries the right to defeat their preexisting creditors by way of a disclaimer,

Adam J. Hirsch, Inheritance and Bankruptcy: The Meaning of the “Fresh Start”, 45 HASTINGS L.J. 175, 192-93 (1994) [hereinafter Hirsch, Inheritance and Bankruptcy]. 87. UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 2 cmt., 8A U.L.A. 161, 170 (1978). The time allowed should overlast the time for filing claims and contesting the will and enable the executor . . . to know with certainty who the takers of the estate will be. On the other hand, it should not be so long as to work against an early determination of . . . succession to an estate. Id.; see also id. § 1 cmt, 8 U.L.A. at 168 (“[T]he expeditious administration of estates makes definiteness desirable in this area.”); In re Howe’s Estate, 163 A. 234, 237 (N.J. Prerog. Ct. 1932) (“[I]f such [a] donee . . . fails to reject [an inheritance] within a reasonable time, he must be deemed to have accepted it. The title to property cannot be left uncertain indefinitely . . . .”). 88. Actually, this prospect raises an interesting issue of how to read a disclaimer statute tolerating prolonged indecision in pari materia with state statutes simultaneously enjoining a personal representative to carry out her office without delay. E.g., UNIF. PROBATE CODE § 3704 (amended 1997) (“A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate . . . .”). Which rule takes priority? Can a personal representative force the issue, citing her statutory obligation to close the estate, or do beneficiaries have the right to hold the estate open indefinitely? To avoid litigation, UDPIA should resolve this statutory conflict explicitly. 89. One might argue that alternative beneficiaries also bear part of the cost of the delay, although anything they gain from a disclaimer is, from their perspective, a windfall. 90. In re Wilson’s Estate, 83 N.E.2d at 855 (“Since . . . equity and good conscience require[s] that a man pay his contract obligations, the time allowed for action should be shorter when the effect of renunciation will be to prevent satisfaction of a judgment . . . .”); Oliver v. Wells, 173 N.E. 676, 679 (N.Y. 1930) (Cardozo, C.J.); Note, Disclaimers in Federal Taxation, 63 HARV. L. REV. 1047, 1048-49 (1950); see also Hirsch, supra note 9, at 594. 91. See infra Part V.A.

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is there any reason to set a temporal limit on that right? It would seem not. The justice underlying the beneficiaries’ right, vel non, is purely a substantive one: If they can with fairness and efficiency disclaim now in spite of creditors, then the same is equally true later. Promptness has no apparent bearing on the public policy of the beneficiaries’ right. The only conceivable justification for requiring prompt disclaimer in this context involves the potential harm to subsequent creditors, assessing a beneficiary’s creditworthiness in the wake of her benefactor’s death. Does inheritance entail an “ostensible ownership” problem,92 creating an appearance of affluence sufficient to fool lenders into extending credit to an otherwise impecunious beneficiary—who can then proceed to disclaim and laugh at her bill collectors?93 If so, the efficiency of the market for consumer credit would demand the shortest possible period during which the inheritance remained in limbo. But, in truth, no ostensible ownership problem exists in this case: Prior to disclaimer, the inheritance remains in the possession of the personal representative, not the beneficiary. Once the beneficiary accepts possession, thereby becoming the apparent owner of inherited property, under both the common law and UDPIA she forfeits whatever right of disclaimer she otherwise would have had.94 The rule that acceptance of possession is final suffices to cure the ostensible ownership problem.95 Meanwhile, so long as—and for however 92. See generally Douglas G. Baird & Thomas H. Jackson, Possession and Ownership: An Examination of the Scope of Article 9, 35 STAN. L. REV. 175 (1983). 93. For an examination of the ostensible ownership problem in a related context, see Adam J. Hirsch, Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives, 73 WASH. U. L.Q. 1, 63-66 (1995). 94. UDPIA, supra note 2, § 13(b)(1). Likewise under prior Uniform Acts, see UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 5, 8A U.L.A. 149, 157 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 4(a), 8A U.L.A. 161, 174 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 4(a), 8A U.L.A. 179, 186 (1978); UNIF. PROBATE CODE § 2-801(e) (amended 1997). See also I.R.C. § 2518(b)(3) (1989). For common law cases, see In re Popkin & Stern, 223 F.3d 764, 767-68 (8th Cir. 2000) (dicta); Leipham v. Adams, 894 P.2d 576, 581-82 (Wash. Ct. App. 1995); 3 AMERICAN LAW OF PROPERTY § 14.15, at 630 (A. James Casner ed., 1952); THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS § 139, at 775 (2d ed. 1953); MCGOVERN & KURTZ, supra note 82, § 2.8, at 77; 6 WILLIAM H. PAGE, ON THE LAW OF WILLS § 49.11, at 52-53 (William J. Bowe & Douglas H. Parker eds., rev. ed., 1960 & Supp., Jeffrey A. Schoenblum ed., 2001); C. P. Jhong, Annotation, What Constitutes or Establishes Beneficiary’s Acceptance or Renunciation of Devise or Bequest, 93 A.L.R.2d 8, 39-42 (1964). 95. The common law rule developed with this concern in mind. See Crumpler v. Barfield & Wilson Co., 40 S.E. 808, 810 (Ga. 1902) (asserting that under the law, a beneficiary could not “go into possession of . . . land, remain thereon, contract debts, and [then] express her dissatisfaction with the devise, turn the property over to the executor of the will, and thus defeat her creditors . . . .”); McGarry v. Mathis, 282 N.W. 786, 789-90 (Iowa 1938); Lehr v. Switzer, 239 N.W. 564, 566 (Iowa 1931); see also Daniel v. Frost, 62 Ga. 697, 705-10 (1879) (addressing disclaimer by an ostensible owner in a related context). In a more recent case, decided under a statute codifying the common law rule, the court concluded that a disclaimant had not yet accepted an inherited automobile, even though he had taken temporary possession of the vehicle,

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long as—a beneficiary decides to keep her option of disclaimer open, she will remain the ostensible nonowner of the property. In sum, state lawmakers have no reason to place a time limit on the exercise of a right of disclaimer, and the Commissioners were right to leave such a deadline out of UDPIA. But there remains, alas, one further difficulty with UPDIA’s treatment of this problem: By its plain language, UDPIA fails to have the effect that its drafters suppose it to have. Recall that UDPIA does not affirmatively validate a disclaimer made at any time prior to acceptance of the inheritance. Rather, UDPIA affects the law by process of omission, erasing any and all reference to the existence of a time limit. By “not . . . includ[ing] a specific time limit” in UDPIA, the Commissioners believe that “the only bar to a disclaimer” under the Act is “acceptance of the offer.”96 But that conclusion neglects the impact of the section, earlier quoted, preventing a disclaimer whenever it is “barred or limited . . . by law other than this [Act].”97 Even under a liberal construction of that caveat, restricting common law bars to matters not explicitly dealt with by UDPIA,98 any extrastatutory bar on disclaimer based on timeliness should still remain in force by implication because UDPIA is altogether silent on the subject. And under the common law, such a bar does exist: In order to refuse an inheritance effectively under the common law, the beneficiary must disclaim within a reasonable time.99 As drafted, UDPIA resurrects that deadline.100 That is contrary to the drafters’ intent, however, and—as earlier argued—is bad policy.101 Indeed, it is potentially worse policy than that implemented by the Uniform Probate Code. At least the Uniform Probate Code provides beneficiaries with in light of the fact, inter alia, that “[a]t no time did [the disclaimant] take title to the automobile, [or] use it as collateral for a loan.” Mapes v. United States, 15 F.3d 138, 141 (9th Cir. 1994); see also Seifner v. Weller, 171 S.W.2d 617, 623 (Mo. 1943) (allowing a beneficiary to disclaim fourteen years after the benefactor’s death, “it appearing that no interested person has altered his position because of mere lapse of time”). 96. UDPIA, supra note 2, prefatory note. See also UNIF. DISCLAIMER OF PROP. INTERESTS ACT prefatory note & § 9 cmt. (Discussion Draft 1997) (“Under the common law an effective disclaimer had to be made only within a ‘reasonable’ time. This act specifically rejects a time requirement for making a disclaimer . . . . Only events occurring after the right to disclaim has arisen will act as a bar.”); LaPiana, supra note 11, at 57; LaPiana, Memorandum, supra note 65, at 1; Plenary Reading, 1998, supra note 29, at 15, 48, 52-53. 97. UDPIA, supra note 2, § 13(e). The provision receiving common law into the interstices of UDPIA might also apply here. Id. § 4(a). 98. See supra text accompanying notes 31-32. 99. MCGOVERN & KURTZ, supra note 82, § 2.8, at 77; see also 6 PAGE, supra note 94, § 49.8 at 46-48; 3 AMERICAN LAW OF PROPERTY, supra note 94, § 14.15, at 630-31. 100. The vague reasonable time standard is codified in a few states, e.g., CAL. PROB. CODE § 279 (West 2001) (adding a conclusive presumption that nine months constitutes a reasonable time), and, prior to the enactment of § 2518, a Regulation also set this standard for taxqualifying a disclaimer. Treas. Reg. § 25.2511-1(c)(2) (as amended in 1997) (applicable to transfers creating interests prior to 1977, after which § 2518 applies). 101. See supra notes 80-95 and accompanying text.

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a bright-line rule, to wit, the fixed nine-month deadline.102 In its place, UDPIA restores a fuzzier “standard”103 that by its nature is more difficult to plan for and that inevitably will stir up additional litigation over whether or not the standard has been met in any given case.104 Fortunately, however, UDPIA’s safe harbor for tax-qualified disclaimers here may lend a helping hand. Keep in mind, any disclaimer that satisfies the substantive requirements of the tax code satisfies UDPIA.105 Accordingly, beneficiaries operating under UDPIA can with great, although not complete, assurance continue to rely on the nine-month deadline found in § 2518 as a benchmark.106 That dead102. See supra note 71. 103. Under the common law test for the timeliness of a disclaimer, “[w]hat is a reasonable time must depend on all the facts and circumstances.” Coleman v. Burns, 171 A.2d 33, 35 (N.H. 1961); accord, e.g., Keinath v. Comm’r, 480 F.2d 57, 61-62 (8th Cir. 1973); In re Wilson’s Estate, 83 N.E.2d 852, 854-55 (N.Y. 1949). Given the dearth and inconsistency of common law cases, the operative standard in this instance may be fuzzier than most: “A review of the state court cases is of limited assistance in defining ‘reasonable time.’” Keinath, 480 F.2d at 62. One can identify some common law cases requiring beneficiaries to disclaim within less time than the nine months allowed under prior Uniform Acts. In re Howe’s Estate, 163 A. 234, 237-38 (N.J. Prerog. Ct. 1932); see also Keinath, 480 F.2d at 62 (asserting that a Minnesota statute fixing a six month time limit is “of some relevancy and probative value” in determining the reasonable time standard under the state’s common law); In re Wilson’s Estate, 83 N.E.2d at 85455 (reducing the time limit at common law when a disclaimer would thwart creditors’ claims). If a state’s common law standard were found to run short of nine months under some or all circumstances, UDPIA could have the perverse consequence of compressing a deadline its drafters intended to enlarge! But cf. infra notes 105-06 and accompanying text. 104. The Commissioners who drafted the first generation of Uniform Acts on disclaimer concluded that a fixed deadline was preferable to a vague standard. See UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT prefatory note, 8A U.L.A. 161, 163 (1978). For a modern policy analysis of the ancient tension between rules and standards, see Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992). 105. UDPIA, supra note 2, § 14. This provision operates “[n]otwithstanding any other provision of this [Act],” including id. § 13(e), which otherwise reintroduces the common law bar. 106. Assume that under state common law a beneficiary might have to disclaim within a space of time less than nine months. If she were to disclaim within a time that meets the ninemonth deadline for a tax-qualified disclaimer but fails to meet the state common law deadline for disclaimer, is the disclaimer still tax-qualified? If the answer is no—if, in other words, tax qualification hinges on the beneficiary also meeting the deadline for disclaimer set by state law—then § 14 of UDPIA, deeming effective any disclaimer that is tax-qualified, would be circular and unhelpful in this context. But if the answer is yes—if, in other words, a late disclaimer under state law will still be tax-qualified provided it is timely under the Internal Revenue Code—then § 14 of UDPIA provides beneficiaries with a safe harbor deadline of nine months. Section 2518 of the Internal Revenue Code fails to answer this question explicitly. Private letter rulings issued prior to the amendment to the Code in 1981 giving effect to transfer disclaimers, see supra note 67, held that the answer was no. Priv. Ltr. Rul. 80-22-021 (Feb. 26, 1980); Priv. Ltr. Rul. 78-20-022 (Feb. 15, 1978). Nonetheless, the Treasury Regulation subsequently issued governing disclaimers of interests created prior to 1982 asserts without explanation that the answer is yes, if state law treats an untimely disclaimer as an assignment to the alternative beneficiary, which UDPIA does. Treas. Reg. § 25.2518-1(c)(3) (examples 1 & 2) (as amended in 1997); UDPIA, supra note 2, § 13(e), (f). This assertion appears inconsistent with I.R.C. § 2518(b)(4) (1989), see supra note 67, but the fact that the interpretive Regulations lack the force of law is irrelevant here; by express language, UDPIA acknowledges as valid any

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line, at least, should serve to diminish the flow of litigation resulting from UDPIA’s inadvertent restoration of the “reasonable time” standard. Even so, because that restoration itself conflicts with the drafters’ expectations, an initial round of litigation will inevitably be necessary to resolve that UDPIA does indeed mean what its text implies. The situation can scarcely be described as optimal. III. STANDING A. Heirs Similar difficulties arise in connection with UDPIA’s treatment of the problem of eligibility to disclaim. Under the common law, for reasons that have not a jot of modern relevance, only beneficiaries under a will or an instrument of gift have the right to disclaim. Heirs taking under the intestacy statute have no right to renounce an inheritance, which vests in them eo instanti by operation of law.107 The signal accomplishment of statutory disclaimer law enacted in the last

disclaimer found to be tax-qualified under the Code “and the regulations promulgated thereunder.” UDPIA, supra note 2, § 14. Thus, UDPIA assuredly provides a safe harbor deadline of nine months for disclaimers of interests created prior to 1982. See also UDPIA, supra note 2, § 16. The section of the Regulations governing disclaimers of interests created after 1981 is, however, reserved for subsequent release, and inexplicably the Treasury Department has closed this Regulations project. Treas. Reg. § 25.2518-1(c)(1)(ii) (as amended in 1997); see also WENIG, supra note 34, at A-56. Although the 1981 amendments to the Code suggest no reason why the interpretation found in the Regulation pertaining to interests created theretofore would merit revision, no Regulation is explicitly on point, and UDPIA’s safe harbor for disclaimers qualified, inter alia, by the Regulations fails to cover logical extensions of the Regulations. Concerning disclaimers of interests created after 1981, the Regulations must be judged irrelevant, and only UDPIA’s safe harbor for disclaimers qualified by the Code itself is germane. The question, then, hinges on judicial interpretation of the Code (which may be influenced by the Regulations), and whereas the cases to date strongly suggest that the answer will be yes, an untimely disclaimer at state law after 1981 can still be tax-qualified if the disclaimer meets the Code’s nine-month deadline—hence providing beneficiaries with a safe harbor under UDPIA— no case has yet raised this issue directly. The issue that remains quite unclear is whether beneficiaries can tax-qualify an untimely disclaimer at state law, and thus enjoy the safe harbor, without having recourse to a transfer disclaimer. See Delaune v. United States, 143 F.3d 995, 1001 & n.3 (5th Cir. 1998) (stating in dicta that a transfer disclaimer complying with federal law need not meet state law requirements for a disclaimer); Estate of Dancy v. Comm’r, 872 F.2d 84, 85 & n.1 (4th Cir. 1989) (same); Estate of Lute v. United States, 19 F. Supp. 2d 1047, 1057-58 (D. Neb. 1998) (same); In re Estate of Lee, 589 N.Y.S.2d 753 (Sur. Ct. 1992) (holding a disclaimer tax-qualified as a transfer disclaimer despite failing to meet a filing requirement under state law); Estate of Bennett v. Comm’r, 100 T.C. 42, 68, 74-76 (1993) (holding a disclaimer unqualified as a transfer disclaimer for want of an actual written transfer in lieu of an effective disclaimer at state law). Transfer disclaimers clearly come within UDPIA’s safe harbor provision, which deems effective as a disclaimer under UDPIA any “disclaimer or transfer” found to be tax-qualified. UDPIA, supra note 2, § 14. 107. E.g., In re Meyer’s Estate, 238 P.2d 597, 605 (Cal. Dist. Ct. App. 1951). For a brief historical discussion, see Hirsch, supra note 9, at 591-93; supra note 35 and accompanying text.

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century has been to eradicate this hoary distinction.108 Under American statutes, heirs and devisees alike are free to refuse their inheritances. Which brings us to UDPIA. Without peradventure, the Commissioners intend to perpetuate this reform: several of the Act’s provisions presuppose that an heir can disclaim.109 But again, under UDPIA’s plain text, the issue is doubtful. Prior Uniform Acts had indicated by express language that the right of disclaimer extended to an heir.110 UDPIA has only this to say: “A person may disclaim, in whole or in part, any interest in or power over property,”111 without adding anything about the manner of devolution whereby the person may have acquired that interest. Another provision is equally terse: “This [Act] applies to disclaimers of any interest in or power over property, whenever created,”112 not however created. Nor do the definitions of the words person and disclaimer established in UDPIA elaborate that a person may be an heir or that a disclaimer may follow intestate succession.113 The drafters’ economy of expression here is damaging because, once again, it must be interpreted in conjunction with the caveat that disclaimers under UDPIA are “barred . . . if so provided by law other than this [Act].”114 The common law bars disclaimer by an heir, and the language of UDPIA nowhere explicitly overturns that result. In light of the venerable, universal statutory rejection of the common law rule, coupled with the drafters’ presupposition that they had followed suit, only an obstinately textualist court would read UDPIA

108. Hirsch, supra note 9, at 596. Commentators had long criticized the distinction, and they had urged its statutory abolition. 3 AMERICAN LAW OF PROPERTY, supra note 94, § 14.15, at 628-29; ATKINSON, supra note 94, § 139, at 776; 6 PAGE, supra note 94, § 49.1, at 37; Lauritzen, supra note 35, at 569, 587. 109. See UDPIA, supra note 2, §§ 6(b)(1) & cmt., 12(c) (specifying when a disclaimer of an intestate interest would take effect and specifying to whom such a disclaimer would have to be delivered); see also LaPiana, supra note 11, at 60 (offering a hypothetical example of the devolution of inherited property when an heir disclaims under UDPIA, thereby assuming without analysis that such a disclaimer is effective). 110. “A person . . . who is an heir, next of kin, devisee, [or] legatee, . . . may disclaim . . . .” UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 1, 8A U.L.A. 161, 166 (1978). “A person . . . to whom any property or interest therein devolves, by whatever means, may disclaim . . . .” UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 1, 8A U.L.A. 151, 151 (1978). See also UNIF. PROBATE CODE § 2-801(a) (amended 1997). 111. UDPIA, supra note 2, § 5(a). 112. Id. § 3. 113. “‘Disclaimer’ means the refusal to accept . . . property.” Id. § 2(3). “‘Person’ means an individual, [or] corporation . . . .” Id. § 2(6). The terms property and interest in property are not defined in UDPIA. 114. Id. § 13(e); see also id. §4(a) (supplementing UDPIA with the common law “[u]nless displaced by a provision of this [Act]”).

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literally in this respect.115 Nevertheless, UDPIA’s potential to provoke needless litigation over so fundamental an issue is once again troubling. B. Fiduciaries Assuming a right of disclaimer exists, who has authority to exercise it? The beneficiary can do so herself, of course. But what of fiduciaries—trustees and other representatives—exercising their judgment on her behalf? Given the paucity of precedents, the common law failed to disclose clearly whether representatives could disclaim on behalf of deceased, incapacitated, or minor (and unborn) beneficiaries.116 On the other hand, trustees under the common law could disclaim only their own legal title, not the beneficiary’s equitable title; disclaimer by a trustee did not cause a trust to fail, but rather triggered the disclaimant’s replacement by a successor trustee.117 Whereas prior Uniform Acts 115. But, needless to add, resolute—if not obstinate—textualism is today an increasingly common judicial philosophy. For the textualist manifesto, see ANTONIN SCALIA, A MATTER OF INTERPRETATION (1997). 116. See In re Estate of Morgan, 411 N.E.2d 213, 215 (Ill. 1980) (remarking on the uncertainty of the issue). Observing that it was a case of first impression, one common law court acknowledged the right of a personal representative to disclaim on behalf of a deceased beneficiary. In dicta, the court extended the right to guardians of living beneficiaries. In re Howe’s Estate, 163 A. 234, 236-37 (N.J. Prerog. Ct. 1932) (adding that “the fiduciary must exercise that right in accordance with his honest judgment as to what is best for the benefit of the person in whose shoes he stands”); see also Estate of Hoenig v. Comm’r, 66 T.C. 471, 475-76 (1976) (citing Howe’s Estate for authority); 6 PAGE, supra note 94, § 49.5, at 42 (same). But cf. UNIF. PROBATE CODE § 2-801(a) cmt. (West 6th ed. 1983) (asserting that “absent a statute, the general rule is that the right to disclaim is personal to the person entitled to exercise it, and dies with him . . . even though the time within which the right might have been utilized has not expired . . . .”; citing, however, not to a disclaimer case, but to a spousal-election case). Unborn beneficiaries exercise rights independent of others and are not bound by other beneficiaries’ decisions to disclaim. In re Estate of Burmeister, 594 P.2d 226, 229 (Kan. 1979). Rights of a fiduciary to disclaim benefits on behalf of the beneficiary of a pension plan depend on the terms of the pension contract itself rather than state law. Nickel v. Estate of Estes, 122 F.3d 294, 298-99 (5th Cir. 1997). 117. Tech. Adv. Mem. 85-49-004 (Aug. 30, 1985). [The trustee’s] function is to gather the trust assets, invest and preserve them . . . . [A]ny action by the [trustee] to defeat the trust would be in derogation of its duties imposed by the trust. Consequently, the [trustee] had no authority to unilaterally renounce a portion of the property otherwise receivable by the trust or to execute a disclaimer of the property. Id.; Priv. Ltr. Rul. 88-04-004 (Oct. 22, 1987) (“Once a trustee has chosen to reject all or a portion of a transfer to trust, the general rule is that without the joinder of the trust beneficiaries, the rejection does not cause the trust to fail as to such property.”); RESTATEMENT (SECOND) OF TRUSTS §§ 35 & cmt. b, 102 & cmt. g (1959); see also id. § 190 cmt. n (ordinarily barring gifts of trust property by trustees, although “[a] gift may be proper where it is advantageous to the trust estate”); 6 PAGE, supra note 94, § 49.5, at 43. See, e.g., Davis v. Davis, 494 So. 2d 393, 394, 397 (Ala. 1986) (where beneficiaries themselves disclaimed at the trustee’s request); In re Estate of Horowitz, 531 A.2d 1364, 1366 (N.J. Super. Ct. Law Div. 1987) (where the trustee of a minor applied to be appointed guardian of the minor on the assumption that she could not otherwise disclaim on behalf of the minor); but cf.

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failed to treat the problem of disclaimer by a trustee (and hence did not impinge on the common law), the rules they provided for disclaimers by other representatives were mercurial: Over time, the Uniform Probate Code has taken three different approaches to this issue, without articulating any policy rationales for its perturbations.118 UDPIA alters course once again, introducing into the law of disclaimer notable innovations. Under UDPIA, a “fiduciary” has power to disclaim “any interest in or power over property . . . whether acting in a personal or representative capacity.”119 The Act defines “fiduciary” sweepingly to include “a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person,”120 which would include guardians ad litem of minor—but not necessarily unborn121—beneficiaries, together with guardians and conservators of incapacitated beneficiaries. Neither the Act nor the accompanying comment elaborates the administrative standard under which fiduciaries exercise this authority.122 Nor does UDPIA provide for judicial oversight; under the Act, a fiduciary can disclaim on behalf of McClintock v. Scahill, 530 N.E.2d 164, 165-66 (Mass. 1988) (interpreting the state’s disclaimer statute to permit disclaimer by a trustee). 118. Under the original version of the Code, representatives could disclaim only on behalf of deceased beneficiaries. UNIF. PROBATE CODE § 2-801(a) (West 1st ed. 1970). In 1973, the Code was amended to permit representatives to disclaim on behalf of incapacitated or minor beneficiaries but not on behalf of deceased beneficiaries. UNIF. PROBATE CODE § 2-801(a) & cmt. (West 6th ed. 1983). Finally, in 1990, the Code was amended again to grant representatives the right to disclaim on behalf of all sorts of beneficiaries. UNIF. PROBATE CODE § 2-801(a) & cmt. (West 9th ed. 1991). For a synopsis of the historical development of this section of the Uniform Probate Code, see Medlin, supra note 3, at 1238 n.26, 1251 n.101. Other Uniform Acts failed to treat the matter consistently: Whereas the Uniform Disclaimer of Transfers by Will, Intestacy, or Appointment Act of 1978 and the Uniform Disclaimer of Transfers Under Nontestamentary Instruments Act of 1978 each permitted representatives to disclaim on behalf of deceased, incapacitated, or minor beneficiaries, the Uniform Disclaimer of Property Interests Act, also of 1978, allowed representatives to disclaim only on behalf of incapacitated or minor beneficiaries, not deceased beneficiaries. UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 1, 8A U.L.A. 149, 151 (1978); cf. UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 1 & cmt., 8A U.L.A. 161, 166-68 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 1, 8A U.L.A. 179, 181 (1978). No accompanying comment explained this inconsistency. See also MODEL PROBATE CODE, supra note 3, § 58 (failing to address the issue). 119. UDPIA, supra note 2, § 5(b); see also id. § 8. A corollary provision further gives trustees power to disclaim fiduciary powers, which may grant them discretion to make distributions to particular beneficiaries, without disclaiming the trust as a whole. Id. §§ 11, 13(c). 120. Id. § 2(4). The cross-reference in the accompanying comment is inaccurate. See id. § 2 cmt. 121. UDPIA defines “person” to refer to “an individual,” id. § 2(6), which on strict reading would seem to exclude the unborn. Such an interpretation is, however, out of step with UDPIA’s liberal approach to disclaimers. Here we confront another ambiguity, which is again bound to breed needless litigation. Cf. MONT. CODE ANN. § 72-2-811(1)(c) (1999) (expressly permitting disclaimer on behalf of an unborn beneficiary). 122. See infra note 128, item #1.

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beneficiaries without a court’s approval.123 On the other hand, UDPIA does allow an instrument creating the fiduciary relationship expressly to “restrict[ ] or limit[ ]” a fiduciary’s power of disclaimer.124 The instant provision thus creates a default rule of construction, not a rule of law. Putting aside for a moment the substantive merits of what these provisions of UDPIA have to say, they may trouble us for what they don’t say. The accompanying comments contain scarcely any policy analysis to justify their innovative qualities.125 What is worse, the comments do not even call attention to their innovative qualities. To invest a trustee with the right to disclaim as representative for a competent beneficiary without notice or consent is a revolutionary legal development.126 One would never guess that from UDPIA, which asserts that “[t]his Act . . . gives fiduciaries broad powers to disclaim”127 without placing that assertion in any sort of historical context. 123. See infra note 128, item #2; note 171 and accompanying text. 124. UDPIA, supra note 2, § 5(b). On the other hand, “[a] fiduciary may disclaim the interest . . . even if . . . an instrument other than the instrument that created the fiduciary relationship imposed a . . . limitation on the right to disclaim.” Id. 125. See id. §§ 5 cmt., 8 cmt., 11 cmt. Nor did UDPIA’s plenary debates occasion any policy discussion. These provisions elicited only a single comment from the floor, an inquiry concerning a matter of construction. Plenary Reading, 1999, supra note 29, at 51-52. Legislative history is scarcely more informative. An early draft of UDPIA found inspiration in prior Uniform Acts: “In recognizing the disclaimer by fiduciary, this section conforms to the UPC [Uniform Probate Code] and extends that rationale to analogous situations.” UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 8 cmt. (Discussion Draft 1997). The suggestion that trustees of competent beneficiaries are truly analogous to other fiduciaries from a policy perspective will be disputed hereinafter. UDPIA’s Reporter has also noted the importance of clarifying the substantive law of fiduciary disclaimer: “The ability of a trustee to disclaim property that would otherwise pass to the trust is not universally recognized, and one of the goals of the UDPIA was to remove any doubt about the validity of such disclaimers.” LaPiana, Memorandum, supra note 65, at 10. Of course, the same doubt (to the extent that it exists) could have been removed by an express rule restricting disclaimers by trustees of competent beneficiaries. 126. On the common law, see supra note 117. Only a small minority of state statutes at present allow a trustee to disclaim without the benefactor’s authorization under the governing instrument or without the co-signature of the trust beneficiary. CONN. GEN. STAT. ANN. § 45a579(a), (b)(1) (West 1993 & Supp. 2001) (requiring prior court approval); MASS. GEN LAWS ANN. ch. 191A §§ 1, 2 (West 1990), construed in McClintock v. Scahill, 530 N.E.2d 164, 165-66 (Mass. 1988) (requiring no prior court approval); N.H. REV. STAT. ANN. § 563-B:1 (1997) (same); OR. REV. STAT. § 112.652 (1999) (same); S.C. CODE ANN. § 62-2-801(a) (Law. Co-op 1987 & Supp. 2000) (same); TENN. CODE ANN. § 31-1-103(a) (1984 & Supp. 1999) (same). Other expansive state statutes notably omit trustees for competent beneficiaries from the list of fiduciaries empowered to disclaimer. E.g., IND. CODE ANN. § 32-3-2-2 (Michie 1995) (permitting disclaimer by a personal representative, guardian, or conservator); 20 PA. CONS. STAT. § 6202 (1975 & Supp. 2000) (permitting disclaimer by a personal representative or by the fiduciary of a minor or incapacitated person); see also In re Estate of Newell, 408 N.E.2d 552, 556-58 (Ind. Ct. App. 1980) (construing Indiana statutory law). 127. UDPIA, supra note 2, § 5 cmt. A corollary section of UDPIA allowing a trustee to disclaim fiduciary powers is affirmatively deceptive in this respect: Far from indicating its innovative character, the accompanying comment cites to a case in which “[t]he use of a disclaimer in just that situation was approved.” Id. § 11 cmt. (citing Cleaveland v. United States, 62

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Considered substantively, these provisions suffer from several minor but lingering technical ambiguities.128 As a policy matter, they are a mouthful, which we had best proceed to digest piecemeal.129 A.F.T.R.2d (RIA) 88-5992 (D.C. Ill. 1988)). But in truth, “[u]nder the law of most jurisdictions, a trustee cannot make a unilateral disclaimer of a fiduciary power that affects the rights of a beneficiary unless the trust instrument expressly authorizes such a disclaimer or the affected beneficiary consents to the disclaimer.” Rev. Rul. 90-110, 1990-2 C.B. 209. Accord Estate of Bennett v. Comm’r, 100 T.C. 42, 50-52, 58-66 (1993); In re Estate of Witz, 406 N.Y.S.2d 671, 673 (Sur. Ct. 1978); Tech. Adv. Mem. 98-18-005 (Jan. 6, 1998); Tech. Adv. Mem. 86-05-004 (Sept. 30, 1985); Tech. Adv. Mem. 85-27-009 (Mar. 21, 1985); RESTATEMENT (SECOND) OF TRUSTS § 102(4) (1959). What is more, the case cited in UDPIA’s comment allowed a disclaimer of a fiduciary power only where the affected beneficiaries of the trust “received notice of the trustee’s disclaimer and did not object.” Cleaveland, 62 A.F.T.R.2d (RIA) at 88-5994. That requirement does not appear in UDPIA, although the trustee’s action “must be compatible with the fiduciary’s duties.” UDPIA, supra note 2, § 11 & cmt. At any rate, “the case [Cleaveland] was a very sympathetic one . . . and one may readily surmise why the . . . Court came out as it did. Thus the result is an aberration and should not be relied on.” Coleman, supra note 34, at 16-11. Existing statutes in a small minority of states do grant trustees power to disclaim fiduciary powers, however, although all but one of these require prior approval by the court, unlike UDPIA. CONN. GEN. STAT. ANN. § 45a-579 (b)(1), (e)(2)(F) (West 1993 & Supp. 2001); IDAHO CODE § 15-2-801(a)(3) (Michie 1979 & Supp. 2000); NEB. REV. STAT. § 302352(a)(3) (1995); S.C. CODE ANN. § 62-2-801(b) (Law. Co-op 1987 & Supp. 2000); TENN. CODE ANN. § 31-1-103(a) (1984 & Supp. 1999) (no prior court order required); see also Estate of Ware v. Comm’r, 480 F.2d 444 (7th Cir. 1973) (the holding of this case is construed in Tech. Adv. Mem. 85-27-009 (Mar. 21, 1985)). 128. Item #1: Whereas the comments accompanying provisions devoted specifically to disclaimers by trustees observe (vaguely) that “[e]very disclaimer by a trustee must be compatible with the trustee’s fiduciary obligations” and direct us to look elsewhere for rules pertinent to other representatives, UDPIA, supra note 2, §§ 8 cmt., 11 cmt., the comment accompanying the provision relevant to disclaimer by fiduciaries in general includes no analogous qualification, stating simply that “[t]his act . . . gives fiduciaries broad powers to disclaim . . . .” Id. § 5 cmt. Must fiduciaries other than trustees disclaim in a manner that is compatible with their fiduciary obligations? A rigid application of inclusio unius could lead to the conclusion that they need not disclaim in such a manner, although other laws fixing their duties would contradict this conclusion. Item #2: UDPIA’s provision for disclaimer by fiduciaries is subject to “express[ ]” limitations imposed “by another statute of this State.” Id. § 5(b). Accordingly, if a state statute requires court approval before a fiduciary can disclaim, that requirement is read into UDPIA. But what if that same requirement derives merely from the common law of the jurisdiction? Does UDPIA override that common law requirement, or is it still read into UDPIA via its other provision restricting any right of disclaimer that is “limited . . . by law other than this [Act]?” Id. § 13(e). Presumably, the particular language of the first provision supersedes the general language of the second provision, although the point remains to be clarified. Item #3: UDPIA provides that “[e]xcept to the extent a fiduciary’s right to disclaim is expressly restricted . . . by the instrument creating the fiduciary relationship, a fiduciary may disclaim, . . . whether acting in a personal or representative capacity.” Id. § 5(b). Read literally, this language suggests that a governing instrument could restrict a fiduciary’s power to disclaim in a personal capacity, that is, prevent a trustee, et al., from refusing to assume the burdens of office. Such a result would, of course, be absurd, and for that reason the language should not be construed strictly. Item #4: UDPIA defines a “person,” to include, inter alia, an “estate” and a “trust.” Id. § 2(6). Under UDPIA, a “person” can disclaim despite any restriction on the right of disclaimer contained in the governing instrument. Id. § 5(a). Suppose, then, a governing instrument denies a personal representative or a trustee the right to disclaim. Disclaimer by the trustee or personal representative acting as a “fiduciary” is now barred by UDPIA. Id. § 5(b). But can the personal representative or trustee still disclaim, regardless of the governing instrument, on behalf of the “person” comprising the “estate” or “trust”? Id. §§ 2(6), 5(a). These provisions are in appar-

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1. Status UDPIA’s provision allowing disclaimer by a fiduciary is inclusive. Yet beneficiaries may have come to be represented by others for a number of alternative reasons and under a variety of very different circumstances, each of which requires separate analysis. a. Competent Beneficiaries.—The decision to appoint a fiduciary may not relate to a beneficiary’s competency. Benefactors often create testamentary trusts for adult, competent beneficiaries in order to exercise dead hand control over the inheritance or to ensure professional management of the principal. In such a case, any right of disclaimer that exists in the fiduciary will supplement, rather than substitute for, the beneficiary’s right to disclaim on her own behalf. A right of disclaimer by a fiduciary under these circumstances appears superfluous. The beneficiary can make the choice to disclaim for herself, and nothing is gained by extending the choice to another.130 If there is any potential merit in a supplemental right of disclaimer here, it arises in the special case of a trust for a group of beneficiaries, where tax efficiency will follow only if the trust is disclaimed as a whole. In that event, engineering a useful disclaimer requires cooperation among the beneficiaries, which could be hament conflict, and no accompanying comment clarifies what it means for an estate or trust to disclaim as a “person.” See id. § 2 cmt. Item #5: The section of UDPIA relevant to disclaimers by joint tenants provides that “[u]pon the death of a holder of jointly held property, a surviving holder may disclaim.” Id. § 7(a) (emphasis added). Does this language preclude disclaimer by the personal representative of a joint tenant who outlives the first joint tenant but who dies thereafter without having yet disclaimed? Surely, the drafters do not intend that result, although the comment fails to clarify the section’s meaning in this regard. See id. § 7 cmt. 129. For prior commentary, see BRAND & LAPIANA, supra note 8, at 7-12; MCGOVERN & KURTZ, supra note 82, at 78-79; Coleman, supra note 34, at 16-10 to 16-17; Ellsworth, supra note 68, at 714-19; Gregory L. Fullerton, When Can a Fiduciary Disclaim Property on Behalf of Another?, 17 EST. PLAN. 272 (1990). For a related policy discussion of the doctrine of substituted judgment, see Fellows, supra note 40, at 622-30; see also Robert McLeod, What Are the Limitations to an Attorney-in-Fact’s Power to Gift and to Change a Dispositive (Estate) Plan?, 27 WM. MITCHELL L. REV. 1143 (2000). 130. Cf. In re Estate of Suter, 142 N.Y.S.2d 353, 355-56 (Sur. Ct. 1955) (where the beneficiary of a trust was permitted to disclaim over the objection of the trustees), rev’d on reh’g, 172 N.Y.S.2d 100 (Sur. Ct. 1958) (rescinding on grounds that beneficiary was incompetent at time of disclaimer). This analysis applies whether a trustee seeks to disclaim the trust as a whole or seeks merely to disclaim a fiduciary power to make distributions to particular beneficiaries, which a trustee is also empowered to do under UDPIA. Id. §§ 11, 13(c). As the drafters point out, a disclaimer of a fiduciary power may produce tax efficiencies, for example, by operating to qualify a trust for the marital deduction, id. § 11 cmt., or the charitable deduction. But the same result can be achieved if the beneficiaries affected by the power themselves disclaim their interest in the trust (or in that aspect of the trust), which they remain free to do under UDPIA. Id. § 5(a) (allowing disclaimer, or partial disclaimer, of any sort of beneficial interest in property). E.g., Estate of Nicely v. Nat’l Found. for Infantile Paralysis, 44 Cal. Rptr. 804, 806, 810-11 (Dist. Ct. App. 1965); Priv. Ltr. Rul. 85-43-009; see also Estate of Witz, 406 N.Y.S.2d at 672 (noting this strategy and citing to additional cases in which beneficiaries disclaimed interests stemming from trust powers).

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pered by emotional disharmony or by the existence here of a Prisoner’s Dilemma.131 Either way, discretionary trust beneficiaries might then rejoice if a trustee had authority to execute a “collective” disclaimer that the parties, if left to themselves, could not readily have negotiated.132 That said, granting fiduciaries the general right to disclaim on behalf of competent beneficiaries entails the obvious danger that a trustee might decide to disclaim without first consulting a beneficiary or even to disclaim against her wishes. Of course, for a professional trustee to execute a disclaimer without the approval of the affected party seems virtually inconceivable. If the trustee is an unsophisticated family member, however, such an action becomes much easier to conceive. Extending the power of disclaimer beyond the competent beneficiary under these conditions is an invitation to litigation after the fact.133 The game simply is not worth the candle. b. Minor Beneficiaries.—In the case of a minor (or unborn) beneficiary, the problem differs. Here we do not have a beneficiary who is competent to decide the matter of disclaimer for herself. But we will:

131. The problem raised in the text arises, however, whenever multiple parties will benefit only by disclaiming in unison, as is often true where marital deduction planning is concerned, e.g., Hunt v. United States 566 F. Supp. 356, 356-58 (E.D. Ark. 1983); In re Guardianship of Kramer, 421 N.Y.S.2d 975, 976 (Sur. Ct. 1979), irrespective of whether their interests all happen to be contained within a single trust. A Prisoner’s Dilemma arises in game theory when parties must cooperate in order to obtain a benefit, but when they also know that if other parties act in a cooperative way while they themselves do not, they can exploit the other parties’ unilateral cooperation. In that situation, all parties may decline to be cooperative, fearing exploitation by the rest. DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 31-35 (1994). Here, the beneficiaries of a trust know that if they all disclaim they can engage in an act of collective altruism that may produce benefits for the family as a whole, but they also know that if any one beneficiary breaks her promise to disclaim, she may be able to capture the entire trust for herself. RESTATEMENT (SECOND) OF TRUSTS § 143 (1959). Under those conditions, external intervention might be necessary to facilitate cooperation. On the other hand, beneficiaries can overcome the Prisoner’s Dilemma and cooperate effectively if they have a preexisting relationship of “trust,” which often does develop within the confines of a family. For theoretical discussions, see BERNARD BARBER, THE LOGIC AND LIMITS OF TRUST 26-44 (1983); BARBARA A. MISZTAL, TRUST IN MODERN SOCIETIES 157-76 (1996); Bernard Williams, Formal Structures and Social Reality, in TRUST 3, 3-9 (Diego Gambetta ed. 1988); see generally Symposium, Trust Relationships (pts. 1-2), 81 B.U. L. REV. 321, 479 (2001). 132. The instant problem could be overcome without the assistance of a trustee as an instrument of collective action if a disclaimer can be executed conditionally—here, the disclaimer by each member of the group would be made upon the express condition that all other members of the group also disclaim. Indeed, this alternative strategy may be the only option if the interests of group members do not happen to be held in a single trust. Unfortunately, however, the effectiveness of a conditional disclaimer is not dealt with under UDPIA. Cf. UDPIA, supra note 2, § 5(e) & cmt. (rendering a disclaimer irrevocable). For a case giving effect to a conditional disclaimer, see Palmer v. White, 784 P.2d 449, 451 (Or. Ct. App. 1989); but cf. Northwestern Nat’l Cas. Co. v. Doucette, 817 S.W.2d 396, 401 (Tex. App. 1991) (where the condition was not unequivocal). 133. A disclaimer executed against the beneficiary’s will might be challenged as a breach of trust.

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We simply have to wait until the beneficiary reaches the age of majority. Is there any harm in waiting? None is apparent unless delay would cause the beneficiary to lose her right to disclaim, which should not occur under the substantive law of UDPIA.134 Nor, incidentally, would it occur under the Internal Revenue Code, which suspends the usual nine-month deadline for a tax-qualified disclaimer until a minor beneficiary’s twenty-first birthday.135 Accordingly, as a matter of public policy, we can safely consolidate the problem of adult disclaimants with that of adults-to-be. c. Incapacitated Beneficiaries.—Incapacitated beneficiaries stand in a different situation. In light of their incapacity—which, unlike a minor’s, may continue indefinitely—some surrogate must step in to make decisions for them, and a fiduciary typically assumes that role. Conceivably, we could require fiduciaries to put off disclaiming until such time as a doctor certifies that the beneficiary cannot conceivably recover her competence (and then decide for herself), but the tax code makes no allowance for such a delay.136 Here, permitting an immediate disclaimer by a fiduciary makes sense. d. Deceased Beneficiaries.—The case for permitting disclaimer by a fiduciary is strongest in connection with a beneficiary who dies before she has decided whether to accept or disclaim her inheritance. Here, no matter how long we wait, the beneficiary will never recover her competence, and a surrogate has to be called upon to wind up her affairs. Indeed, in this situation, all of the decedent’s property will go to others in any event, and a disclaimer, if made, would simply comprise one aspect of that larger distributive process. e. Charitable Trusts.—Finally, we have the problem of a beneficiary who is not a human person at all. Some benefactors leave funds in trust for the accomplishment of a purpose or cause rather than for a named beneficiary.137 If the law deems the purpose one that subserves the public interest, the trust is a “charitable trust,” and the

134. See supra Part II. 135. I.R.C. § 2518(b)(2)(B) (1989). The one exception to this analysis is the case where tax efficiencies will ensue only if multiple beneficiaries coordinate their disclaimers and different deadlines apply to different beneficiaries. In that event, fiduciary disclaimer on behalf of a minor could be appropriate. See, e.g., In re Guardianship of Kramer, 421 N.Y.S.2d 975, 976 (Sur. Ct. 1979) (where both parent and minor child had to disclaim in order to derive a tax benefit, and the parent declined to disclaim within the nine-month deadline without assurance that the child would follow suit). 136. See I.R.C. § 2518(b)(2). 137. See generally Hirsch, Trusts for Purposes, supra note 10; Hirsch, supra note 43.

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state attorney general has standing to enforce it against the trustee.138 Can the trustee of a charitable trust—as fiduciary for the public at large—disclaim the inheritance? Under UDPIA, the answer is yes: Charitable trusts fall within the Act’s broad definition of a disclaimable trust.139 This outcome is without precedent. Trustees have never had the power to terminate via disclaimer a charitable trust.140 Indeed, this want of authority has long constituted one of the principal distinctions between a charitable trust and an honorary trust for a noncharitable purpose, which a trustee traditionally has been free to terminate (or, one might say, to disclaim).141 UDPIA blurs the distinction, making charitable trusts in this respect more like honorary trusts.142 The drafters present no policy argument for this innovation, convincing or otherwise,143 and none is apparent: Tried and tested rules already exist to handle potential difficulties with charitable trusts. Obviously, the usual motives for a disclaimer lose all trace of relevance when we come to consider this sort of beneficiary. Unlike private beneficiaries, a charitable trust has no cause to engage in tax planning or any other sort of estate planning, for the greater good of

138. RESTATEMENT (SECOND) OF TRUSTS §§ 348, 391 (1959). Charitable trustees can disclaim in their personal capacity as trustees, of course, just as trustees of private trusts can do. Id. §§ 354 & cmt. a, 397. 139. Under UDPIA, a “person” may disclaim. UDPIA, supra note 2, § 5(a). UDPIA defines a “trust” to be a “person,” id. § 2(6), and it further defines a “charitable trust” to be a “trust.” Id. §§ 2(8)(A). Ergo, a charitable trust is a person eligible to disclaim under UDPIA. Furthermore, under UDPIA, a “fiduciary” may disclaim. Id. § 5(b). UDPIA defines a “trustee” to be a “fiduciary.” Although UDPIA does not define “trustee,” it does define a “trust” (as already indicated) to include a charitable trust. Id. § 2(8)(A). 140. E.g., Mfrs. Nat’l Bank v. Woodward, 21 A.2d 705, 708 (Me. 1941); Read v. Willard Hosp., 102 N.E. 95, 95 (Mass. 1913). In contradistinction to a charitable trust, a charitable organization may disclaim a bequest. Typically, a charitable organization will choose to disclaim because it objects to the use stipulated for the bequest. The bequest will then fail on the theory that by bequeathing to the organization, the benefactor implicitly intends the bequest to take effect only if the named organization agrees to serve as the intermediary for carrying out the charitable purpose. E.g., Roseberry v. Moncure, 429 S.E.2d 4, 5 (Va. 1993); Watson v. Wall, 93 S.E.2d 918, 925 (S.C. 1956) (disclaimer of bequest to the state by resolution of the General Assembly); Nicholson’s Estate v. City of Denver, 93 P.2d 880, 888 (Colo. 1939); Dare v. New Brunswick Trust Co., 194 A. 61, 62 (N.J. Ch. 1937); Albany Hosp. v. Hanson, 108 N.E. 812, 813-15 (N.Y. 1915); see also RESTATEMENT (SECOND) OF TRUSTS § 399 cmt. o (1959). By contrast, a charitable trustee appointed for the purpose of effectuating the stipulated use has a fiduciary obligation to do so and is only free to decline the office of trustee, following which the court will appoint a successor trustee. See supra note 138. 141. RESTATEMENT (SECOND) OF TRUSTS § 124 & cmts. c, e, & illus. 1-4 (1959); see also id. § 123. 142. The two remain different, in that the trustee of a charitable trust can only disclaim within the scope of his fiduciary duties. UDPIA, supra note 2, § 8 cmt. 143. See id. §§ 5 cmt., 8 cmt.

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a family.144 If a charitable trust could not operate effectively to accomplish the testator’s stated purpose, and for that reason might as well not go into effect, the cy pres doctrine already functions to allow modification or termination of the trust.145 If property bequeathed to a charitable trust proved worthless or burdensome (a “white elephant”), and for that reason might as well not be accepted by the entity,146 the doctrine of administrative deviation and associated rules already apply.147 UDPIA serves merely to muddy the doctrinal waters; it offers a solution in search of a problem. 2. Administrative Standard The problem of the administration of a power of disclaimer held by a third party is not dealt with in UDPIA. In the case of a trustee, the problem is subsumed: According to an accompanying comment, “[e]very disclaimer by a trustee must be compatible with the trustee’s fiduciary obligations.”148 What a trustee’s fiduciary obligations would entail in this connection UDPIA leaves unexplored. In the case of fiduciaries other than a trustee, the problem is ignored: UDPIA says not so much as a word about the administrative constraints under which they operate.149 Of course, we cannot expect the drafters of a Uniform Act to resolve every last issue arising out of its rules. The one identified here is far from trivial, however, and the laws of physics dictate that matter(s) left up in the air must eventually descend— in this instance expensively, into a courtroom.150

144. See supra note 34 and accompanying text. For potential uses of disclaimers other than tax planning, see infra notes 217-18 and accompanying text. For a case in which a charitable organization nonetheless disclaimed a small bequest in order to generate a tax benefit for the family of the benefactor, see Leigh v. Commonwealth, 648 A.2d 1346, 1347-49 (Pa. Commw. Ct. 1994). 145. RESTATEMENT (SECOND) OF TRUSTS § 399 (1959). 146. In plenary debate, one Commissioner applauded the instant rule, citing to that scenario. Plenary Reading, 1998, supra note 29, at 37-38; see also id. at 3-4. Thus far it has arisen only in popular fiction, not in published cases. See O. HENRY, The Ransom of Red Chief, in BEST STORIES OF O. HENRY 188 (Bennett Cerf & Van H. Cartmell eds., 1945) (1907). 147. See In re McNeel’s Trust, 282 N.Y.S.2d 103, 106 (Sup. Ct. 1967); In re Emberson’s Estate, 43 N.Y.S.2d 782, 785 (Sur. Ct. 1943); RESTATEMENT (SECOND) OF TRUSTS § 167 (1959); see also id. § 240. Under the Uniform Trust Powers Act, a trustee can abandon a trust asset. UNIF. TRUST POWERS ACT § 3(c)(7), 7C U.L.A. 396, 401 (1964). 148. UDPIA, supra note 2, §§ 8 cmt., 11 cmt. 149. See id. § 5 cmt. 150. Presumably, the drafters considered these issues too complex to deal with in a brief statute. Prior Uniform Acts are scarcely more communicative on the subject. See UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 1 cmt., 8A U.L.A. 161, 167 (1978) (“Section 1 extends the right to disclaim to the representative of an incapacitated or protected person . . . when it is in the ward’s interest to do so.”). Few of the existing state statutes expand on the issue. For one somewhat more detailed statutory provision, see WASH. REV. CODE ANN. § 11.92.140 (West 1998 & Supp. 2001). Still, the comments that accompany UDPIA are infinitely elastic, and these could have served to elaborate the statutory text.

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Viewed in the abstract as a policy issue, the problem of fiduciary administration of a disclaimer once again demands more refined analysis. Here the key point to notice is that the circumstance giving rise to the fiduciary relationship itself affects the calculus of disclaimer and hence should play a role in determining the administrative regime that applies. Consider the personal representative of a deceased beneficiary. The circumstance of a beneficiary’s demise is uniquely auspicious for a disclaimer because death removes the principal obstacle to turning down property, namely, its effect on the beneficiary’s own financial well-being. A deceased beneficiary has transcended such concerns, so a personal representative can focus solely on the tax and distributive ramifications of disclaiming. What is more, the fact of a beneficiary’s death itself affects those ramifications: If a personal representative disclaims, the amount of property available for distribution should increase because it will not flow immediately through a second probate estate.151 All of this may suggest the suitability of a disclaimer that a needy or greedy beneficiary would never have contemplated had she survived. There still remains the intractable problem of how those ramifications should be assessed. Of course, if the succeeding beneficiary— she who would take if the decedent beneficiary’s estate doesn’t disclaim—will still inherit, and more efficiently so, if the estate does disclaim, the case is easy, and the personal representative should carry out the disclaimer.152 Likewise, if a disclaimer would divert the inheritance away from the succeeding beneficiary, but she nonetheless consents to that outcome, the problem disappears. Disclaimer by the personal representative then becomes akin to a family settlement.153 If, on the other hand, the succeeding beneficiary objects to a disclaimer, we face a more difficult question: Whom does the personal representative represent?

151. Ordinarily in such a case the property will not face double taxation, see I.R.C. § 2013 (1989), but it could still face unnecessary taxation in the beneficiary’s estate if the benefactor’s estate was not taxable and, at any rate, the property will be twice subjected to the costs of administration. 152. For examples of this scenario, where a disclaimer by the estate did follow, see Rolin v. Comm’r, 588 F.2d 368, 369 (2d Cir. 1978); In re Estate of Kirk, 591 N.W.2d 630, 632 (Iowa 1999); In re Estate of Estes, 718 P.2d 298, 299-300 (Kan. 1986); In re Estate of Deitch, 435 N.Y.S.2d 244, 245 (Sur. Ct. 1981). The situation differs, however, if disclaimer by the estate causes property to flow outright to succeeding beneficiaries, as opposed to in trust. See infra note 159. Creditors’ claims present a further complication. Compare Estate of Schiffman, 430 N.Y.S.2d 229, 230 (Sur. Ct. 1980) (holding that the personal representative of an estate could disclaim in order to avoid creditors’ claims against the estate) with Estate of Heater v. Dep’t of Pub. Aid, 640 N.E.2d 654, 656-67 (Ill. App. Ct. 1994) (holding the reverse). 153. On family settlement agreements, see ATKINSON, supra note 94, at 566-67.

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Historically, the answer to the question was clear. “The executor represents the person of his testator . . . .”154 More recently, however, courts have hedged on this issue, asserting more vaguely that “[t]he execut[or] represents the testat[or] and to a very great extent the heirs, legatees or distributees, for whose benefit probate proceedings are had.”155 Although the testator has exclusive power to appoint by will the personal representative, a court may take into consideration the beneficiaries’ objections to the personal representative’s administrative decisions and even, in unusual circumstances, their objections to the testator’s choice of person to hold the office.156 At any rate, if disclaimer by the decedent beneficiary would alter her estate plan, even viewing the personal representative as solely the testator’s fiduciary leaves us uncomfortably rudderless. Trying to divine how the decedent beneficiary would have acted in these circumstances is impossible: To ask as a thought-experiment how she would have approached a problem that she never actually confronted (that is, her own premature death, affording the opportunity for an efficient disclaimer), and so expressed no intent about, is the iffiest of iffy questions.157 But neither can we approach the question objectively: How she should have acted is hardly less iffy, for an election between the efficiency of a one-step transfer (via disclaimer) to a new beneficiary (or a new class of beneficiaries) who, although not named in the decedent beneficiary’s will, may still be a close relative (or a class of relatives, possibly overlapping with the ones named in the will), and the inefficiency of a two-step transfer (via nondisclaimer) that accords precisely with the decedent beneficiary’s will, involves a trade-off between incommensurables. Under these conditions, we face an unhappy choice between making an arbitrary guess about the testator’s preference and following an arbitrary rule establishing a presumption about that preference. 154. Fox Film Corp. v. Knowles, 261 U.S. 326, 330 (1922) (Holmes, J.) (citing Coke on Littleton). 155. Lucas v. Mannering, 745 S.W.2d 654, 656 (Ky. Ct. App. 1987). 156. Id. at 656 (“The record reveals no compelling evidence that it was [the testator’s] intent to have the property sold,” as the executor sought but the beneficiaries opposed. “The record, however, certainly does reflect the beneficiaries’ desire to take the property in-kind rather than the proceeds from a sale of it.” Thus, the executor owed a “duty as fiduciary to the testat[or] and the beneficiaries” not to sell the property); see also, e.g., In re Petty’s Estate, 608 P.2d 987, 995 (Kan. 1980) (concerning the relevance of beneficiaries’ objections to the choice of personal representative). 157. As a court once opined in a different context: “We would not encourage the suggestion that a court may wander . . . into the region of conjecture as to what it is reasonable to suppose the testat[or] would have done had she contemplated a certain event happening. A court is not free to roam such unfenced fields of speculation.” Estate of Graves v. Holland, 457 P.2d 71, 77 (Kan. 1969). Almost certainly, an inference of subjective intent founded on the decedent beneficiary’s prior decisions would be impossible here: The opportunity to disclaim an inheritance of a particular sum, resulting in devolution to particular alternative beneficiaries, is sui generis.

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In what appears the only recorded case to address the question directly, the court asserted that authorization of a disclaimer by a personal representative lay in the court’s discretion,158 and it refused to permit a disclaimer that would have altered the estate plan laid out in the decedent beneficiary’s will. In light of “the testamentary intent of the decedent . . . tax advantages [are] not the overriding consideration,” opined the court.159 In truth, we cannot know what the testator’s overriding consideration would have been, although the court’s position does accord with the modern estate planner’s credo that tax efficiency is best cast aside as a be-all and end-all.160 Still, no clear resolution to this policy issue presents itself. 158. In re Estate of Morgan, 393 N.E.2d 692, 696 (Ill. App. Ct. 1979), aff’d 411 N.E.2d 213 (Ill. 1980). By contrast, in many situations where a testator’s intent has become ambiguous on account of changed circumstances, the law imposes inflexible default rules, precisely on account of the difficulty of reconstructing probable intent and to reduce litigation. See Flannery v. McNamara, 738 N.E.2d 739, 746 (Mass. 2000); Hirsch, Inheritance and Inconsistency, supra note 10, at 1125-35. 159. Estate of Morgan, 393 N.E.2d at 696. The minority in Morgan would have deferred to the personal representative’s judgment concerning the decedent beneficiary’s probable intent, so long as that judgment was “reasonable.” Id. at 697-98 (Jiganti, J., dissenting). In this case, incidentally, the succeeding beneficiaries would have been the same whether or not the decedent beneficiary disclaimed. But with a disclaimer, the succeeding beneficiaries would have taken the inheritance outright; whereas, without a disclaimer, they would have taken it in a trust limiting their access to, and control over, the corpus, which would have been subject to a testamentary special power of appointment, requiring them to bequeath the corpus remaining at their deaths among their descendants. The affirming court considered this estate plan to differ substantially from outright inheritance. Estate of Morgan, 411 N.E.2d at 215. See also In re Estate of Schock, 543 A.2d 488, 489-90 (N.J. Super. Ct. Law Div. 1988) (approving disclaimer by a decedent’s estate to save taxes on the condition that those who benefitted from the disclaimer fully compensated those who would have taken shares of the disclaimed property under the decedent’s will—although that condition should have rendered the disclaimer unqualified for federal tax purposes, per I.R.C. § 2518(b) (1989); see in this regard In re Estate of Domenico, 418 N.Y.S.2d 1012, 1013-14 (Sur. Ct. 1979)); Guardianship of Hougard v. Borden, 321 N.W.2d 313, 314-15 (Wis. Ct. App. 1982) (ruling that the court could not approve a disclaimer in the name of an incapacitated beneficiary unless his estate plan were consulted and compared with the devolution that would result from a disclaimer, observing that “[i]t is in [the beneficiary’s] best interest . . . that his testamentary disposition is respected”). Very few existing state statutes address the issue. Compare, e.g., 755 ILL. COMP. STAT. 5/2-7 (1992) (liberally allowing the court to approve “if it finds that the disclaimer benefits the estate as a whole and those interested in the estate generally even if the disclaimer alters the distribution of the property . . . disclaimed”) with, e.g., OHIO REV. CODE ANN. § 1339.68(B)(4)(a), (b) (Anderson 1993 & Supp. 2000) (more strictly allowing the court to approve if disclaimer “would not materially, adversely affect . . . the beneficiaries of the estate of the decedent”). 160. David R. Frazer, Five Myths of Estate Planning, TR. & EST., Dec. 1985, at 16, 16. Addressing a related problem, the tentative draft of the Restatement (Third) of Property grants courts discretion to modify a testator’s estate plan to achieve tax objectives without the consent of the affected beneficiaries if such modification would not violate his “probable intention.” RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANFERS § 12.2 & cmt. f (Tentative Draft No. 1, 1995). If the proposed modification would require the court to alter the beneficial interests under the estate plan, the testator’s “non-tax as well as tax objectives are to be considered. The greater the proposed alteration, the more rigorous the court should be in measuring the requested modification against the donor’s probable intention.” Id. § 12.2 cmt. f. For contested cases applying this doctrine, see Griffin v. Griffin, 832 P.2d 810, 813-14 (Okla. 1992); Shawmut Bank v. Buckley, 665 N.E.2d 29, 32-35 (Mass. 1996) (under the guise of construction); see also

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When we turn to the fiduciary of a minor (or unborn) beneficiary, we face a very different case. Now the fiduciary most assuredly must take the beneficiary’s interests into account. With her whole life ahead of her, the beneficiary’s needs are difficult if not impossible to anticipate; under the circumstances, a per se rule barring a disclaimer in her name appears justifiable,161 unless the disclaimer literally costs her nothing.162 That may not be so, however, in the case of an incapacitated beneficiary. The very fact of her incapacity, occasioning the intervention of a fiduciary, may place upper limits on her personal consumption.163 In that event, a disclaimer that is otherwise efficient would be justifiable if (and only if) the resources already at the fiduciary’s disposal suffice to meet the beneficiary’s needs and if the devolution of the

Pond v. Pond, 678 N.E.2d 1321, 1323-24 (Mass. 1997) (same); Simches v. Simches, 671 N.E.2d 1226, 1229-30 (Mass. 1996) (guardian ad litem consented to modification on behalf of affected minor and unborn beneficiaries). But other courts have declined to alter estate plans to achieve tax benefits. E.g., Fifth Third Bank v. Simpson, 730 N.E.2d 406, 408-09 (Ohio Ct. App. 1999). See also supra note 41. Another related line of cases addresses the right of a fiduciary to alter the estate plan of an incapacitated person in light of changed circumstances. Some of the cases are discussed in Fellows, supra note 40, at 622-30. 161. See Domenico, 418 N.Y.S.2d at 1013-14 (holding that the court would not authorize a disclaimer by a guardian-parent on behalf of minor beneficiary-children to derive tax efficiencies for the family unit unless the disclaimer “would be directly advantageous to [them]”); but cf. McClintock v. Scahill, 530 N.E.2d 164, 165-66 (Mass. 1988) (authorizing a trustee to disclaim on behalf of “grandchildren,” not indicating whether or not they had reached the age of majority, where the trustee “believed that the beneficiaries . . . would benefit in the long run from the estate tax savings the disclaimer would yield,” but where their eventual opportunity to re-inherit was not assured, but also where “[n]o claim that . . . [the] disclaimer was improvident” was presented to the court); Estate of Goree v. Comm’r, 68 T.C.M. (CCH) 123 (1994), nonacq. 1996-1 C.B. 1 (where a probate court authorized as “in the best interest of the protected person[s]” a disclaimer by a conservator on behalf of her minor children of part of their inheritance from their father, in order to exploit the marital deduction, where the guardian ad litem representing the children before the court withdrew his objection; the federal tax court ruled this decision was not “plainly and palpably erroneous” under the state standard for appellate review, but the Commissioner ruled on appeal that the issue should have been reviewed de novo). Once again, existing state statutes fail to elaborate on the issue. 162. See, e.g., In re Guardianship of Kramer, 421 N.Y.S.2d 975, 977 (Sur. Ct. 1979) (permitting fiduciary disclaimer on behalf of a minor to minimize taxes where the minor would receive an inheritance only if her parent first disclaimed that inheritance, and the parent was willing to disclaim only if the minor-child also disclaimed); but see In re Estate of Horowitz, 531 A.2d 1364, 1367 (N.J. Super. Ct. Law Div. 1987) (refusing to permit fiduciary disclaimer on behalf of a minor under similar facts on the theory that if the minor failed to disclaim, and his parent accordingly refused to do so, then the minor-child would still get some benefit despite the increased tax burden from his parent’s increased wealth, which would be less certain if both the parent and the minor-child disclaimed). See also In re Kochman, 53 A.F.T.R.2d (RIA) 84-1640 (N.Y. Sur. Ct. 1984). 163. This assumes, however, that the beneficiary’s condition has been professionally diagnosed as irreversible, and that the fiduciary can insure her (or has sufficient means to selfinsure) against the costs associated with any potential deterioration of her condition. See, e.g., Guardianship of Hougard, 321 N.W.2d at 314 (where the disputed allegation was made that the incapacitated beneficiary was “permanently incompetent,” and that “he has sufficient assets for his present and future needs”).

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disclaimed property coincides with her estate plan.164 If, on the other hand, they do not coincide, then we are back to square one.165 Finally, when we come to the competent beneficiary, the exercise of independent discretion by a fiduciary over the matter of disclaimer appears unnecessary and, indeed, as earlier argued, potentially disruptive. Here, the trustee’s fiduciary duty should be to defer to the beneficiary’s preference, be it however selfish or selfless, as an extension of the trustee’s traditional duty of loyalty.166 3. Oversight One of the fundamental difficulties with any fiduciary relationship is that the economic interests of the beneficiary and of the fiduciary differ: Lacking a beneficial stake in the corpus, the fiduciary has a mercenary incentive to shirk or steal, occasioning what are commonly known as agency costs.167 A power of fiduciary disclaimer implicates agency costs. The fiduciary can benefit directly from a disclaimer by colluding with those who will receive an inheritance if it is declined in the beneficiary’s name; the fiduciary could offer to exercise the power in exchange for a share of the spoils under the table.168

164. This again assumes that the beneficiary’s condition has been adjudged irreversible, and hence that she could not subsequently alter her estate plan. E.g., Guardianship of Hougard, 321 N.W.2d at 314; In re Baird, 634 N.Y.S.2d 971, 975 (Sup. Ct. 1995). In Baird, the fiduciary “carefully calculated” the beneficiary’s needs and determined upon a partial disclaimer as a result. Id. at 974. Medicaid adds a further complication: In some states, a guardian can disclaim on behalf of an incapacitated beneficiary without sacrificing her eligibility for state support. E.g., In re Estate of Kirk, 591 N.W.2d 630, 634 (Iowa 1999) (dicta). In other states, the reverse is true. E.g., In re Scrivani, 455 N.Y.S.2d 505, 509-10 (Sup. Ct. 1982). See also infra note 212. In states that follow the first rule, a guardian should be allowed to disclaim if the property foregone would be a perfect substitute (or less than a perfect substitute) for state support. If, however, the inheritance would make possible better care than that provided by Medicaid, a guardian should not be allowed to disclaim (at least to that extent, a partial disclaimer still remaining a possibility for superfluity). Of course, in states where a disclaimer would (or might) cause a beneficiary to lose her eligibility for state support, her guardian should not be allowed to disclaim an inheritance. 165. Or, more precisely, back to supra notes 157-60 and accompanying text. Again, the extant state statutes offer little guidance on the matter. 166. RESTATEMENT (SECOND) OF TRUSTS § 170. It may be that a trust has multiple beneficiaries, but if those beneficiaries disagree about the matter, they remain free to disclaim vel non their individual interests in the trust. In the one relevant case, where a court construed a state statute to permit disclaimer by a trustee (and where the beneficiaries were grandchildren, but the opinion failed to indicate whether or not they had reached the age of majority), the court noted simply that “the trustee’s fiduciary status requires any decision to disclaim be made in good faith with the best interests of the trust’s beneficiaries in mind,” and also that “[n]o claim that . . . [the] disclaimer was improvident is presented in this case.” McClintock, 530 N.E.2d at 166. 167. For the seminal discussion, see Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FIN. ECON. 305 (1976). 168. Collusion will not even be necessary if the fiduciary happens to be the alternative beneficiary in the event of disclaimer or would be a beneficiary of that beneficiary. E.g., Estate

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And the fiduciary can also benefit indirectly by not disclaiming if (as is typical) his fees depend upon the size of the corpus that he administers; his decision could rest on these, rather than on legitimate, considerations. Agency costs can be minimized by monitoring: So long as the fiduciary knows he is under surveillance, he cannot misbehave with impunity. A competent beneficiary can do her own monitoring and can sound the alarm if she ever takes exception to a fiduciary’s acts, revealed in mandatory periodic accountings. Other beneficiaries incapable of monitoring—whether due to youth, infirmity, or prior death—must rely on the state to stand in for them.169 Current law provides for different levels of judicial oversight— requiring either ex ante approval or an accounting ex post— depending on the sort of action a fiduciary wishes to take and the type of fiduciary relationship involved.170 UDPIA should take its cue from this preexisting body of law, extrapolating where necessary from the rules applicable to judicial oversight of gifts by a fiduciary, the closest relevant analogy in this context (given the equivalent risk of fiduciary collusion with a gift donee). Instead, without positing any independent rules for judicial oversight of fiduciary disclaimers, and without any explanation, the drafters of UDPIA saw fit at this juncture to narrow the reception of local fiduciary law. Under UDPIA, “a fiduciary’s right to disclaim is . . . limited” by other law only to the extent that the limitation is “expressly” set down in “another statute of this State.”171 Accordingly, no requirement of prior court approval can be read by implication into a fiduciary oversight statute that neglects to cover disclaimers, and any explicit requirement of prior court approval found within local common law is extinguished by UDPIA.172 of Kunkis, 618 N.Y.S.2d 488, 490 (Sur. Ct. 1994) (finding a conflict of interest in these circumstances); In re Scrivani, 455 N.Y.S.2d at 510-11 (same). 169. In light of the fact that personal interest may motivate a fiduciary to disclaim or to forebear from disclaiming, the court should monitor both the fiduciary’s acts and omissions in this connection. 170. Under the Uniform Probate Code, for example, personal representatives can proceed in all matters without a court order (although the right to disclaim is not expressly authorized and a party in interest can seek a restraining order), but they have a duty to account ex post. UNIF. PROBATE CODE §§ 3-607, 3-704, 3-711, 3-715, 3-1003 (amended 1997). On the other hand, guardians of a minor or an incapacitated person must seek a court order before they can disclaim. Id. § 5-407(c)(2). Local laws (in some instances codified) vary on these points. See generally JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 132-34, 396-97 (6th ed. 2000); William M. McGovern, Jr., Trusts, Custodianships, and Durable Powers of Attorney, 27 REAL PROP. PROB. & TR. J. 1 (1992). 171. UDPIA, supra note 2, § 5(b). The accompanying comment offers no justification for this provision. See id. § 5 cmt. 172. But cf. supra note 128, item #2 (noting another general provision of UDPIA that conflicts with this one; presumably, the provision specifically dealing with fiduciary disclaimers supersedes the general provision).

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This provision could operate to undercut prevailing oversight rules, some of which remain uncodified.173 Consider, for example, a trustee’s powers over a charitable trust. Under UDPIA, the trustee could disclaim property bequeathed to the trust back to the testator’s probate estate, whence it would flow to the residuary legatee or heirs. The risk thus exists of a conspiracy between those parties to lay hold of valuable property that the testator intended to devote to the public interest—a risk heightened by the notorious laxity of the state attorneys general who monitor charitable trusts.174 The agency cost identified here is not merely theoretical: In at least one reported case, an interested party connived to bring about the failure of a charitable trust.175 Under the common law doctrine of administrative deviation, a court must authorize an administrative power (such as disclaiming or abandoning trust property) not granted by the trust instrument before a trustee can exercise the power.176 Under this provision of UDPIA, however, a trustee would have to seek court approval of a disclaimer only in the minority of states that have codified rules governing trustees’ powers.177 Could we posit any justification for relaxing the general rules of judicial oversight of fiduciaries in the particular context of a disclaimer? If such a justification exists, it must be the independent deadline pressure for a tax-qualified disclaimer, over which UDPIA of course has no control.178 The prerequisite of a court order to carry out a disclaimer could cause fiduciaries to miss the deadline. But this difficulty is one that common law courts have anticipated. Under the doctrine of administrative deviation, trustees remain free to act— indeed they have a duty to act—without a prior court order if compelled to do so by an emergency.179 So long as this exception exists

173. E.g., In re Estate of Lamson, 662 A.2d 287, 288 (N.H. 1995) (permitting a personal representative to disclaim only with the court’s prior approval and premising this requirement on the court’s general equitable power rather than an express provision in a state statute); Guardianship of Hougard v. Borden, 321 N.W.2d 313, 314-15 (Wis. Ct. App. 1982) (Dean, J., concurring) (noting the proposition that, in the absence of an express statutory grant, a court enjoyed plenary power over disclaimer by a guardian). 174. For a recent discussion, see Susan N. Gary, Regulating the Management of Charities: Trust Law, Corporate Law, and Tax Law, 21 U. HAW. L. REV. 593 (1999). 175. Mfrs. Nat’l Bank v. Woodward, 21 A.2d 705, 709 (Me. 1941). 176. RESTATEMENT (SECOND) OF TRUSTS § 167 & cmt. d (1959). 177. E.g., N.J. STAT. ANN. §§ 3B:14-62 to 65 (West 1983) (permitting a fiduciary to abandon real property if the court approves); 20 PA. CONS. STAT. ANN. § 7132 (West 1975) (permitting a trustee to renounce a transfer of burdensome property if the court approves); but cf. OKLA. STAT. ANN. tit. 60, § 175.24(A)(5) (West Supp. 2001) (permitting a trustee to abandon burdensome or valueless property without a court order); UNIF. TRUST POWERS ACT §§ 3(c)(7), 5(a), 7C U.L.A. 396, 401, 426 (1964) (same; and also codifying the doctrine of court-ordered administrative deviation). 178. See supra note 70 and accompanying text. 179. RESTATEMENT (SECOND) OF TRUSTS § 167(2) (1959). If the trustee acts in an emergency without a court order, the court can ratify the action retroactively. Id. § 167 cmts. e-h.

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within the law, there appears no reason to depart from traditional rules concerning fiduciary supervision in connection with a disclaimer. UDPIA’s decision to the contrary merits reconsideration. 4. Default Rule Under UDPIA, as we have noticed, the power of a fiduciary to disclaim on the beneficiary’s behalf is subject to the will of the creator of the fiduciary relationship.180 Therefore, the settlor of a trust remains free to dictate whether or not the trustee possesses that power. This conclusion accords with the traditional law of trusts, under which a settlor can define the trustee’s administrative prerogatives.181 But we are still left with a question to ponder: Assuming that the right of fiduciary disclaimer comprises a default rule of construction, what then should the default rule be? Should we presume that the settlor intended to extend the right unless the trust instrument says otherwise (as UDPIA does)?182 Or the reverse? Under orthodox policy analysis, default rules are supposed to correspond with the intent of the typical relevant party (here the settlor) to minimize that party’s transaction costs.183 The question then becomes one of empirical inquiry or, faute de mieux, inference: Would most settlors prefer to create a right of fiduciary disclaimer or not? Conceivably, the answer could again depend upon the sort of beneficiary covered by the trust instrument. If the beneficiary in question is a competent individual, then a supplementary power of fiduciary disclaimer is unlikely to be of assistance to her.184 We might expect most settlors to prefer to withhold the power. On the other hand, if the beneficiary is an incompetent person, some settlors plausibly might prefer to create a power of disclaimer in their own trustee, concurrent with the powers of a guardian or conservator appointed by others. Troublingly, the comment accompanying this provision of UDPIA fails to disclose that its counterintuitive default rule—presuming a general preference for a fiduciary power of disclaimer in all cases—was premised on any sort of inferential analysis of testamentary intent, let alone an empirical investigation of the matter.185 180. See supra note 124 and accompanying text. 181. RESTATEMENT (SECOND) OF TRUSTS § 164 (1959). 182. See supra notes 119-20, 124 and accompanying text. 183. ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 199-205 (3d ed. 2000); see also Hirsch, supra note 9, at 612; Hirsch, Inheritance and Inconsistency, supra note 10, at 1096-97. 184. See supra notes 131-33 and accompanying text. Likewise, we can reasonably infer that most testators would prefer not to grant the trustee of a charitable trust the right to disclaim and thereby to render stillborn the trust itself. See supra notes 140-47 and accompanying text. 185. The comment is silent on the issue. See UDPIA, supra note 2, § 5 cmt.

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In short, UDPIA’s approach to the whole problem of fiduciary disclaimer appears insufficiently substantiated and insufficiently thought-through. The provisions need to be reexamined and refined. IV. FORMALITIES Assuming a beneficiary (or a fiduciary) wishes to exercise a right of disclaimer, how exactly can that be accomplished? Under the common law, a beneficiary could effect a binding disclaimer by mere oral declaration.186 Statutory law in every state has tightened that rule, insisting that a beneficiary disclaim in writing.187 UDPIA, in turn, takes a novel approach: It requires beneficiaries to execute a binding disclaimer either by writing or by electronic record, thereby allowing them recourse to modern Internet technology.188 This provision helps to give UDPIA a progressive feel.189 At the same time, the drafters invite criticism for creating precisely the sort 186. This, at least, was the general rule. E.g., Coleman v. Burns, 171 A.2d 33, 35 (N.H. 1961) (“By the great weight of authority a writing is not necessary.”). For an early discussion, see 4 JAMES KENT, COMMENTARIES ON AMERICAN LAW *533-34 (Oliver Wendell Holmes, Jr., ed., 12th ed. 1873) (1826). For modern collections of cases, see 3 AMERICAN LAW OF PROPERTY, supra note 94, § 14.15, at 630; 6 PAGE, supra note 94, § 49.6, at 44; Jhong, supra note 94, at 7172 (noting several decisions to the contrary involving disclaimers of devises of real property). See also Estate of Von Ripper, 408 N.Y.S.2d 686, 689-90 (Sur. Ct. 1978) (asserting that under the common law disclaimer “could be a very informal matter” accomplished by oral declaration or even by implication of the beneficiary’s conduct). On the irrevocability of a disclaimer, see also supra notes 94-95. 187. Most states require a signed writing, and several states require still greater formality. E.g., CONN. GEN. STAT. ANN. § 45a-579(c) (West 1993 & Supp. 2001) (disclaimer must be “executed . . . in the manner provided for the execution of deeds of real property,” which in Connecticut requires a signed writing attested by two witnesses, together with an oral acknowledgement, id. § 47-5); TEX. PROB. CODE ANN. § 37A(a) (Vernon 1980 & Supp. 2000) (disclaimer by “written memorandum, acknowledged before a notary public”); cf. LA. CIV. CODE ANN. art. 963 (West 2000) (requiring a writing, but not a signature). State statutes also mandate either that beneficiaries file a written disclaimer with the court, or that they deliver it to the personal representative, or they are permitted to do either, or they are required to do both. Cf. LA. CIV. CODE ANN. art. 963 (West 2000) (specifying no delivery requirement). For modern cases enforcing local statutory formalities for an effective, binding disclaimer, see, for example, Estate of Murphy v. Murphy, 154 Cal. Rptr. 859, 865 (Ct. App. 1979); In re Estate of Griffin, 812 P.2d 1256, 1257-58 (Mont. 1991); Faught v. Estate of Faught, 730 S.W.2d 323, 324-25 (Tenn. 1987); cf. In re Nistler, 259 B.R. 723, 727-28 (Bankr. D. Or. 2001) (excusing a harmless error in formality). 188. UDPIA, supra note 2, § 5(c), (e). The writing or electronic record must be signed (in pen or electronically) and either delivered (physically or electronically) to the personal representative or filed with the court if no personal representative is then serving, when disclaiming probate assets not in trust. Id. §§ 5(c), 12(b), (c). Different (but consistent) delivery requirements apply to disclaimers of testamentary trusts and disclaimers of nonprobate assets. Id. § 12(d)-(l) & cmt. 189. The Commissioners offer no justification for the provision in the accompanying comment, except to say that it “recognizes that a disclaimer may be prepared in forms other than typewritten pages with a signature in pen”—seemingly an allusion to the objective of modernity. Id. § 5(c) cmt. c. No further discussion of the public policy of the formality of a disclaimer appears anywhere in the comments accompanying UDPIA. Compare the Federal Electronic Records and Signatures in Commerce Act, 15 U.S.C.A. §§ 7001(a), 7003(a)(1) (Supp. 2001),

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of tax-compliance trap about which they expressed concern in the related context of a disclaimer’s timeliness.190 To satisfy the Tax Commissioner, beneficiaries must continue to disclaim in writing.191 And whereas prior Uniform Acts dovetailed with that requirement,192 UDPIA now deviates from it—but only slightly, and (perhaps more significantly) without any warning either in text or comment about the resulting disparity.193 One may question (as we did earlier)194 whether that disjunction presents a significant hazard to beneficiaries or their attorneys: How many will blindly assume that if UDPIA permits them to disclaim electronically, so must the tax code? Whatever our answer, the fact remains that the same Commissioners who earlier emphasized this concern in the context of time-requirements now proceed in the context of formalization-requirements to ignore it.195 To that extent, the policies ostensibly reflected in UDPIA are not reflected comprehensively. Consistency of analysis to one side, UDPIA here is also technically flawed; once again, it does not achieve the result its drafters intended to achieve. The provision governing formalization of a disclaimer under UDPIA has to be read in pari materia with the rule that “[t]his [Act] does not limit any right of a person to . . . disclaim . . . under a law other than this [Act].”196 The common law permits validating electronic signatures in transactions affecting interstate commerce but explicitly excepting records and contracts involving wills and trusts, and compare also the Uniform Electronic Transactions Act of 1999,§ 3(b)(1), 7A pt. 1 U.L.A. 21, 34 (Supp. 2001), carving out a similar exception. 190. See supra notes 74-76 and accompanying text. 191. I.R.C. § 2518(b)(1) (2001). No signature is required, but the beneficiary must deliver the writing to the personal representative or other “holder of the legal title to the property.” Id. § 2518(b)(2). 192. UNIF. DISCLAIMER OF PROP. INTERESTS ACT §§ 2(a), 4, 8A U.L.A. 149, 152, 155 (1978) (requiring a signed writing and delivery to the personal representative, with optional court filing); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT §§ 1, 2(b) & cmt., 8A U.L.A. 161, 166, 169, 171 (1978) (same; comment notes the provision’s conformity with the requirements of the Internal Revenue Code); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT §§ 1, 2(b) & cmt., 8A U.L.A. 179, 181, 184 (1978); UNIF. PROBATE CODE § 2-801(b), (c) (amended 1997) (requiring a signed writing, together with mandatory court filing and delivery to the personal representative when disclaiming probate assets, but permitting the signed writing to be filed or delivered when disclaiming nonprobate assets); see also Medlin, supra note 3, at 1250-51 (identifying an ambiguity in the Uniform Probate Code’s language). 193. See UDPIA, supra note 2, § 5(c) & cmt. 194. See supra notes 77-79 and accompanying text. 195. In point of fact, the Commissioners were not unmindful of the disparity—but they anticipated that the Internal Revenue Code might in due course be amended to permit electronic disclaimer. In plenary debate, the Reporter stated that “[w]e did consider language that would prevent the use of electronic means [of disclaiming]. The committee rejected that simply with the thought that everything was still developing . . . . The committee had generally decided that we would leave it open hoping to allow the law to develop. A statute, for instance, that prevents should the service eventually recognize that kind of electronic filing that prevents that [sic].” Plenary Reading, 1998, supra note 29, at 33-35. 196. UDPIA, supra note 2, § 4(b).

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beneficiaries under wills to disclaim by oral declaration197—and so, by extension, does UDPIA. Courts can avoid this conclusion only by shutting their eyes to plain language. Assuming courts read this language with open eyes, UDPIA does something else: It indirectly restores a distinction between disclaimers by heirs and devisees. Because heirs cannot renounce an inheritance at common law,198 they will certainly have no choice but to disclaim under the formal guidelines of UDPIA. Beneficiaries under wills, however, will have the additional option of disclaiming with less formality under the common law. Prior Uniform Acts had sought explicitly to equate the treatment of heirs and devisees with regard to disclaimers.199 UDPIA undoes that equation—and, what is worse, its atavism in this respect is (once again) wholly accidental. As a matter of public policy, what degree of formality should the law require for a binding disclaimer? Our starting point for such an analysis is the recognition that, in its substantive attributes, a disclaimer is itself a kind of gratuitous transfer: Although the beneficiary does not control who will receive the bequest in lieu of herself when she disclaims it, she can ascertain who the alternative beneficiary will be.200 Typically, that knowledge informs her decision to accept or reject; her desire to enrich the alternative beneficiary is, in most instances, a prerequisite to rejection.201 Accordingly, the principles governing formalization of a gift would appear pertinent. Examined in that context, the common law rule permitting disclaimer by parole is aberrant: Declarations of gift unaccompanied by any sort of delivery are unenforceable.202 If the corpus is not susceptible to manual delivery, the donor can instead accomplish the gift by delivering a writing describing it (known as symbolic delivery). An inheritance that a beneficiary would disclaim likewise cannot be manually delivered, since it has yet to be received;203 by analogy to the law of gifts, the beneficiary should have to deliver a writing instead.

197. See supra note 186. 198. See supra note 107 and accompanying text. 199. UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 1 cmt., 8A U.L.A. 161, 167 (1978). Commentators had also argued for such an equation. See supra note 108. 200. The distributive consequences of a disclaimer are addressed infra Part VI. For a further discussion of the extent of a beneficiary’s dominion over a disclaimed inheritance, see Hirsch, supra note 9, at 605-10. 201. This is not invariably true, however. See infra note 218. 202. For a modern discussion of gift formalities, see MCGOVERN & KURTZ, supra note 82, § 4.5. 203. If she has already accepted possession of the inheritance, the beneficiary cannot disclaim it, although she can of course assign it. See supra notes 94-95.

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The policies articulated to justify these formal requirements within the law of gifts are farsighted—and far-reaching.204 To begin with, lawmakers wish to distinguish communications intended as legally performative from those intended (merely) as expressive. Persons who orally declare a gift may (or may not) mean to bind themselves to it as a matter of law. Requiring persons to formalize their declarations in some way when they do mean to bind themselves serves to forestall both accidental gifts and costly litigation over equivocal declarations. What is more, formalized communication by its nature takes somewhat longer to accomplish than does informal communication. Prospective donors who must go to the trouble of formalizing a gift will have an added breathing space to ponder its advisability; were they able to make enforceable gifts merely by blurting out words, donors would run a higher risk of acting on impulse and so might come to regret their decisions more frequently.205 Finally, if gifts required nothing beyond a parole, lawmakers would render their enforcement vulnerable to fraud. Each of these policies is equally apropos to declarations of disclaimer.206 If anything, modern psychological research suggests that persons may be even more prone to rash disclaimers than to impulsive gifts. Because individuals experience a sense of endowment in 204. For the classic discussions, see Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941); Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1, 1-5, 15-17 (1941); Philip Mechem, The Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by Commercial Instruments, 21 ILL. L. REV. 341 (1926). For a modern treatment, see Melvin Aron Eisenberg, Donative Promises, 47 U. CHI. L. REV. 1 (1979). For a broader look at the problem of gratuitous transfer formality, see Hirsch, Inheritance and Inconsistency, supra note 10, at 1060-69. The remainder of this paragraph distills these analyses. 205. As Professor Eisenberg emphasizes, declarations of gift are often made while the would-be donor is moved by transient emotion. Eisenberg, supra note 204, at 5. The policy of forestalling donor regret is, of course, a paternalistic one, but paternalism pervades the law of transactions, including the law of gratuitous transfers. See generally Hirsch, supra note 93, at 19-23 and passim; Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead Hand, 68 IND. L.J. 1, 24-27 (1992); Anthony T. Kronman, Paternalism and the Law of Contracts, 92 YALE L.J. 763 (1983). 206. One early court, focusing on the problem of fraud, observed the incongruousness of a rule validating oral disclaimers: “The law requires wills to be executed with certain solemnities; and it would present a strange anomaly, if a devise, required to be in writing and executed with such solemnities, could be defeated, and in effect abrogated, by the testimony of a single witness proving some verbal disclaimer.” Bryan v. Hyre, 40 Va. (1 Rob.) 101, 113 (1842). In addition, the same court astutely observed the problem of deliberation: If an oral disclaimer were binding, “testimony of some loose expression, carelessly uttered and imperfectly remembered, forgotten by the devisee as soon as pronounced, might defeat his estate.” Id. The first generation of Commissioners endorsing the writing requirement adverted simply to the problem of evidentiary clarity: “[C]ertainty of titles and the expeditious administration of estates makes definiteness desirable in this area.” UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 1 cmt., 8A U.L.A. 161, 168 (1978). Compare the technical argument for a writing requirement for disclaimers of real property asserted in Pournelle v. Baxter, 9 So. 2d 162, 164 (Fla. 1942), parried in 3 AMERICAN LAW OF PROPERTY, supra note 94, § 14.15, at 630.

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the property they possess, they tend to value what they consider to be already theirs more than the prospect of gaining equivalent amounts of property in the future.207 When a person makes a gift, she gives up her “own” property, but when she disclaims a bequest, she may not regard it in the same way. Because she has not yet taken possession, a disclaiming beneficiary may well view the transaction not as a (painful) loss, but rather as a (relatively painless) forgoing of a gain.208 In consequence, the possibility that she will disclaim without due deliberation looms larger, underscoring the importance of formal requirements such as a writing that tend to promote reflection.209 What, then, of an electronically communicated disclaimer? Is a disclaimer delivered via computer closer to informal speech or a solemnized writing? That is an interesting question, worthy of psychological study—as we see here, the issue is pertinent to legal policy.

207. This phenomenon is referred to in the field of economic psychology variously as the “endowment effect,” “loss-aversion,” “status quo bias,” and the “offer-ask disparity.” For a recent discussion, citing to some of the prior literature, see Gwendolyn C. Morrison, The Endowment Effect and Expected Utility, 47 SCOT. J. POL. ECON. 183 (2000). For an early observation, see DAVID HUME, A TREATISE OF HUMAN NATURE 482 (P.H. Nidditch ed., Oxford Univ. Press 1978) (1739-40) (“Men generally fix their affections more on what they are possess’d of, than on what they never enjoy’d: For this reason, it wou’d be greater cruelty to dispossess a man of any thing, than not to give it [to] him.”). The phenomenon is understood intuitively by laypersons—and can be seen parodied in popular culture. In the delightful feature film TRADING PLACES (Paramount Pictures 1983), a homeless beggar (played by Eddie Murphy) is given a luxurious home by the wealthy Duke brothers as part of a cruel social experiment they are conducting. On the first day, Murphy is careless with his new belongings and breaks a vase. But by the second day, when he throws a party, he becomes so enraged at guests who mistreat “his” possessions that he throws the whole lot out of his house! 208. The process whereby, and the rapidity with which, a person develops a sense of endowment in inherited property have not been studied systematically. For a discussion endeavoring to marshal the extant evidence, see Hirsch, supra note 93, at 35-38. 209. Needless to add, disclaimers are contemplated at a time when the beneficiary is often gripped with emotions—in this case, grief brought on by her benefactor’s death, or even feelings of guilt over receiving the inheritance—at least as powerful as those experienced by the prospective donor of a gift. Cf. supra note 205. This fact serves further to justify paternalistic intervention to protect the transiently vulnerable beneficiary. For a discussion in a related context, citing to psychological studies, see Hirsch, supra note 93, at 38-40. At least one court has flirted with an even more invasive form of paternalism. Faced with a beneficiary who sought to disclaim his interests under a trust, the court observed that “[i]t is not impossible that more mature reflection . . . or unforeseen circumstances might impel the donee to regret his renunciation . . . . Not even the donee is clairvoyant enough to penetrate his future. The good that this wealth could accomplish is too manifest for emphasis.” The court was persuaded that to “allow the income to accumulate in the hands of the trustees, to provide for eventualities, seems prudent and farsighted.” Still, “[i]t must be assumed . . . that the donee has weighed his decision and is prepared to take the consequences. His act of renunciation does not evidence impetuosity or lack of deliberation.” Accordingly, the court ruled, albeit “[r]eluctantly,” that “[h]is adamant determination . . . must prevail even though to the trustees, and, doubtless, to others, it be ‘folly.’” In re Estate of Suter, 142 N.Y.S.2d 353, 355-56 (Sur. Ct. 1955) rev’d on reh’g, 172 N.Y.S.2d 100 (Sur. Ct. 1958) (rescinding on grounds that beneficiary was incompetent at time of disclaimer).

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Addressing the problem in a different context, one commentator observes that [a]lthough Internet communications are almost invariably “written” communications, they lack the formal characteristics of written communications in the “real world.” In the real world, the author is separated from her audience by both space and time, and this separation interposes a formal distance between author and audience, a distance reinforced by the conventions of written communication. Internet communications lack this formal distance. Because communications can occur almost instantaneously, participants . . . place a premium on speed. Indeed, in many fora, speed takes precedence over all other values, including not just accuracy but even grammar, spelling, and punctuation. . . . “[V]enting” is at least as common as careful and considered argumentation.210

This analysis is perceptive and suggests the impolicy of allowing a beneficiary to disclaim electronically.211 To ensure deliberate, unequivocal decisions, lawmakers should require more of a disclaimant than just an oral or electronic declaration. They should take “no” for an answer only when it is communicated in a formalized writing. V. CREDITORS’ RIGHTS A. General Creditors Whether creditors should have it in their power to prevent an insolvent beneficiary from disclaiming, and thereby thwarting levies of execution by her creditors, is the single greatest controversy—and most underdeveloped subdivision—within modern disclaimer law. Common law cases have divided on the question, and so have those disclaimer statutes that speak explicitly to the issue—many of which are poorly drafted, saddling local law with numerous uncertainties.212 210. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 862-63 (2000) (footnotes omitted); see also HENRY H. PERRITT, JR., LAW AND THE INFORMATION SUPERHIGHWAY §§ 9.06, 9.06(A) (2d ed., Aspen Publishers 2001). 211. Giving effect to electronically transmitted disclaimers would also add somewhat to the (presumably remote) danger of fraud perpetrated against the beneficiary. Perhaps more significantly, a beneficiary who disclaimed electronically and then had second thoughts could plausibly deny having sent the communication. Authentication of the communication could then present evidentiary problems, assuming the beneficiary did not have exclusive access to her computer. See generally PERRITT, supra note 210, §§ 9.06[D], 9.10, at 605, 12.11[B]. 212. The majority rule—at least within those jurisdictions that have addressed the issue expressly—permits an insolvent beneficiary to disclaim, in spite of her creditors. For a discussion of state common and statutory law circa 1989, see Hirsch, supra note 9, at 591-603; see also Ellsworth, supra note 68, at 719-26. For more recent cases, see Popkin v. Lurie, 223 F.3d 764 (8th Cir. 2000) (decided under Missouri law); In re Nistler, 259 B.R. 723 (Bankr. D. Or. 2001) (decided under North Dakota law); Pennington v. Bingham, 512 So. 2d 1344 (Ala. 1987); Estate of Heater v. Dep’t of Pub. Aid, 640 N.E.2d 654 (Ill. App. Ct. 1994); Tompkins State Bank v. Niles, 537 N.E.2d 274 (Ill. 1989); Frances Slocum Bank & Trust Co. v. Martin, 666 N.E.2d 411 (Ind. Ct. App. 1996); Nat’l City Bank v. Oldham, 537 N.E.2d 1193 (Ind. Ct. App.

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But the legal landscape is even bleaker elsewhere: In nearly half the states, neither an enactment nor a single published opinion has ever addressed disclaimer by an insolvent beneficiary.213 That is a vacuum which the Commissioners ought to abhor. UDPIA, however, fails to speak to the matter. Instead of proposing a rule to govern these cases, UDPIA expressly relegates the issue of insolvent disclaimer to local law.214 Despite adopting this agnostic stance, UDPIA still represents an improvement over the Uniform Probate Code. Remarkably, the Code failed even to clarify whether it was intended to cover creditors’ rights, and hence left everything to be desired.215 UDPIA at least re-

1989); Succession of Wagner, 746 So. 2d 696 (La. Ct. App. 1999); Succession of Andrews, 604 So. 2d 194 (La. Ct. App. 1992); Baltrusaitis v. Cook, 435 N.W.2d 417 (Mich. Ct. App. 1988); In re Estate of Abesy, 470 N.W.2d 713 (Minn. Ct. App. 1991); Essen v. Gilmore, 607 N.W.2d 829 (Neb. 2000); Trew v. Trew, 558 N.W.2d 314 (Neb. Ct. App. 1996), rev’d on other grounds 567 N.W.2d 284 (Neb. 1997); In re Estate of Opatz, 554 N.W.2d 813 (N.D. 1996); Parks v. Parker, 957 S.W.2d 666 (Tex. App. 1997); Dyer v. Eckols, 808 S.W.2d 531 (Tex. App. 1991); Abbott v. Willey, 479 S.E.2d 528 (Va. 1997); In re Estate of Baird, 933 P.2d 1031 (Wash. 1997) (dicta); In re Estate of Goldammer, 405 N.W.2d 693 (Wis. Ct. App. 1987), review denied, 407 N.W.2d 560 (1987). On attempted disclaimers by incapacitated beneficiaries at the expense of Medicaid authorities, see Hoesly v. Nebraska Dep’t Soc. Servs., 498 N.W.2d 571 (Neb. 1993); In re Baird, 634 N.Y.S.2d 971 (Sup. Ct. 1995), together with the cases cited in UDPIA, supra note 2, § 13 cmt. On attempted disclaimers by debtors in a federal bankruptcy proceeding, compare Nistler, 259 B.R. at 725-27, with In re Kloubec, 247 B.R. 246, 253-56 (Bankr. N.D. Iowa 2000); see also Coleman, supra note 34, at 16-38 to 16-39; Hirsch, Inheritance and Bankruptcy, supra note 86, at 183 n.25; Gregory M. McCoskey, Death and Debtors: What Every Probate Lawyer Should Know About Bankruptcy, 34 REAL PROP. PROB. & TR. J. 669, 683-90 (2000); Stephen E. Parker, Can Debtors Disclaim Inheritances to the Detriment of Their Creditors?, 25 LOY. U. CHI. L.J. 31 (1993). On attempted disclaimers by debtors subject to a federal tax lien, see Drye v. United States, 528 U.S. 49 (1999); for discussions of this case and its broader legal implications, see Edward Kessel & Steven R. Klammer, Supreme Court Finds Disclaimer Ineffective to Avoid Federal Tax Lien, 92 J. TAX’N 118 (2000); Steve R. Johnson, After Drye: The Likely Attachment of the Federal Tax Lien to Tenancy-by-the-Entireties Interests, 75 IND. L.J. 1163 (2000); Claudia M. Osorio, Disclaimer of Intestate’s Estate under Arkansas Law Cannot Prevent Attachment of Federal Tax Lien: Drye v. United States, 53 TAX LAW. 951 (2000). 213. Common law cases (including those decided only by lower courts), cases construing ambiguous statutes, and statutes explicitly resolving the issue of insolvent disclaimer can be found in some twenty-eight jurisdictions today. In the remaining moiety of states, the issue remains wholly enigmatic. The states that do have law on point are Alabama, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New York, North Dakota, Ohio, Pennsylvania, Tennessee, Texas, Virginia, Washington, Wisconsin, and Wyoming. 214. UDPIA, supra note 2, § 13(e) & cmt. 215. The text of the Uniform Probate Code does not explicitly address the rights of general creditors against a disclaimant; nor is the subject addressed in the current version of the accompanying comment. See UNIF. PROBATE CODE § 2-801 & cmt. (amended 1997). This tends to suggest that the issue is left to local common law, which (apparently) fills in gaps in the Code. See id. § 1-103; see also supra notes 20-21 and accompanying text. A prior edition of the Uniform Probate Code (which also incorporated no explicit textual provision on point) included a comment addressed to the issue, however: As regards creditors . . . the provision for “relation back” has the legal effect of preventing a succession from becoming operative in favor of the disclaimant. The relation back is “for all purposes” [quoting language currently found in id. § 2-

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moves the issue unambiguously from its purview.216 Yet, the Commissioners’ reluctance to tackle the problem of insolvent disclaimer is disappointing, if only because it is so central. There exist, after all, just two significant reasons to disclaim property—either to avoid estate and gift taxes or to avoid creditors’ claims.217 A beneficiary who is prompted to disclaim by virtually any other motive can achieve the same result by accepting and then assigning away inherited property.218 As the estate tax dwindles in significance,219 creditors’ claims

801(d)(1)] which would include . . . rights of creditors. . . . [N]umerous cases have held that a devisee . . . can disclaim a devise . . . despite the claims of creditors. UNIF. PROBATE CODE § 2-801(c) cmt. (West 6th ed. 1983). A string cite of common law cases follows. This comment could be interpreted to incorporate implicitly into the Code the rule that creditors cannot defeat a disclaimer, although it could also be read to indicate that local case law governs the issue. Notice also that several discussion drafts of the Uniform Probate Code had included express provisions stating that creditors were powerless to prevent a disclaimer, but this language was omitted from the final draft. E.g., UNIF. PROBATE CODE § 2-801 (Second Tentative Draft 1968). But cf. UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT prefatory note, § 3 & cmt., 8A U.L.A. 161, 163, 17273 (1978) (featuring equivalent text and comment, but also including a prefatory note indicating more strongly that the Act supersedes local law). By contrast, the earlier Model Probate Code barred insolvent disclaimer without ambiguity. MODEL PROBATE CODE, supra note 3, § 58 & cmt. 216. Cases resolving the law of insolvent disclaimer in states whose disclaimer statutes provide that “[a] disclaimer relates back for all purposes to the date of death of the decedent,” or similar language, as appears in the Uniform Probate Code, UNIF. PROBATE CODE § 2801(d)(1) (amended 1997), have come out both ways: Although a majority of courts have interpreted that language to dispose of the issue and hence to allow an insolvent beneficiary to disclaim, several courts have disagreed. Compare Niles, 537 N.E.2d at 279-80 (allowing insolvent disclaimer on the basis of that language); and Martin, 666 N.E.2d at 415 (same); and Oldham, 537 N.E.2d at 1195-97 (same); and Baltrusaitis, 435 N.W.2d at 420 (same); and Essen, 607 N.W.2d at 834 (same); and Trew, 558 N.W.2d at 317-19 (same); and Estate of Opatz, 554 N.W.2d at 815-17 (same); and Nielsen v. Cass County Soc. Servs. Bd., 395 N.W.2d 157, 159 (N.D. 1986) (same); and Abbott, 479 S.E.2d at 529-30 (same); and Estate of Goldammer, 405 N.W.2d at 694 (same), with Pennington, 512 So. 2d. at 1345-46 (not holding that language dispositive and forbidding insolvent disclaimer); and Stein v. Brown, 480 N.E.2d 1121, 1122-24 (Ohio 1985) (same); and Estate of Baird, 933 P.2d at 1034-35 (same) (dicta). 217. For a judicial recognition, see, for example, In re Estate of Schiffman, 430 N.Y.S.2d 229, 230 (Sur. Ct. 1980). Thus, quite unusually, if not uniquely, disclaimers are a useful planning tool mainly at the two socioeconomic poles: extreme wealth and extreme poverty! 218. A beneficiary may, for example, have religious reasons to disclaim, In re Estate of Gilbert, 592 N.Y.S.2d 224, 225 (Sur. Ct. 1992), or “moral and political reasons” for doing so, In re Estate of Suter, 142 N.Y.S.2d 353, 354-55 (Sur. Ct. 1955), rev’d on reh’g, 172 N.Y.S.2d 100 (Sur. Ct. 1958), or—in a surprising number of cases—a beneficiary may seek to bring about a distribution that better accords with her understanding of what the testator wished but failed to accomplish, due to intestacy or a failure to update the will. Hardenbergh v. Comm’r, 198 F.2d 63, 65 (8th Cir. 1952); Myers v. Smith, 16 N.W.2d 628, 629-30 (Iowa 1944); In re Estate of Estes, 718 P.2d 298, 301 (Kan. 1986); see also Jordan v. Trower, 431 S.E.2d 160, 163 (Ga. Ct. App. 1993). Likewise, a disclaimer that generates income tax efficiencies could equally be accomplished by assignment. Of course, all of these motives might be mixed with a desire to avoid incurring a gift tax in the process of redistributing the property, in which case disclaimer law will again prove significant. Furthermore, if the bequest is conditional, the beneficiary must have recourse to disclaimer law in order to avoid an enforceable obligation to carry out the condition. E.g., Balson v. Balson, 515 N.W.2d 474, 475-76 (Wis. Ct. App. 1994). And in the rare case where a bequest comprises property of negative value, the alternative of subsequent

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grow correspondingly more salient. Troublingly, the Commissioners here shrank from their own ambition “to deal with all the different situations the [disclaimer] statutes have not addressed before.”220 If UDPIA represents “the most comprehensive disclaimer statute ever written,”221 it remains less comprehensive than it could be. On top of that, one finds no structural justification for reserving this issue for local resolution. Some legal questions resist policy generalization because local conditions pertinent to the outcome vary dramatically. In such instances, legal disharmony becomes desirable. Within the field of inheritance law, arguably, homestead and setaside provisions are best established locally, in light of substantial differences in the cost of living and in life-style between one jurisdiction and another.222 No equivalent rationale for decentralized policymaking presents itself here, however. I have elsewhere offered my own reflections on the public policy of insolvent disclaimer.223 Put briefly, the strongest argument in favor of allowing an indebted beneficiary to disclaim in order to avoid creditors’ claims is that her benefactor had no obligation to bequeath to her in the first place and quite probably would have agreed to divert the inheritance away from her, had the beneficiary expressed that preference prior to the benefactor’s death.224 Execution of a disassignment may not exist, because no one will agree to take the property off the beneficiary’s hands! See supra note 146 and accompanying text. 219. Passage of the Generation-Skipping Transfer Tax in 1986 had already reduced substantially the opportunities for tax-motivated disclaimers. DUKEMINIER & JOHANSON, supra note 170, at 726. The Taxpayer Relief Act of 1997 further inaugurated a phased-in increase in the estate tax exemption (over a ten year period, thereafter to be indexed for inflation), thereby reducing the number of estates that are subject to the tax. Id. at 982-83. And the estate tax (but not the gift tax) now stands on the brink of total repeal. On the bizarre form of the Economic Growth and Tax Relief Reconciliation Act of 2001, see Paul Krugman, Reckonings, Bad Heir Day, N.Y. TIMES, May 30, 2001, at A23. On the utility of disclaimers under the 2001 Act, see Howard M. Zaritsky, Disclaimer-Based Estate Planning—A Question of Suitability, 28 EST. PLAN. 400 (2001). For recent discussions of the movement to repeal estate taxes, see Ronald D. Aucutt, The Campaign to Repeal the Estate Tax: What a Splendid Little War It Was, 27 EST. PLAN. 493 (2000); Jonathan G. Blattmachr & Mitchell M. Gans, Wealth Transfer Tax Repeal: Some Thoughts on Policy and Planning, TR. & EST., Feb. 2001, at 49; William G. Gale & Joel B. Slemrod, Death Watch for the Estate Tax?, 15 J. ECON. PERSP. 205 (2001). On the concurrent decline of state inheritance taxes, see Robert M. Brucken, The State of Death Taxes, 26 ACTEC NOTES 157 (2000). 220. Plenary Reading, 1998, supra note 29, at 16. 221. UDPIA, supra note 2, prefatory note. 222. The Uniform Probate Code nonetheless includes such provisions, although it acknowledges implicitly the potential desirability of local variation by bracketing the dollar amount of the homestead allowance. UNIF. PROBATE CODE §§ 2-402, 2-403 (amended 1997). 223. I have devoted an article to the subject. Hirsch, supra note 9. On a related subject, see Hirsch, Inheritance and Bankruptcy, supra note 86. This paragraph adumbrates my analysis in those articles. For other discussions, see Hirsch, supra note 9, at 603-04 (citing to previous notes and articles). 224. A rather striking illustration is presented by a recent case in which an heir did not have the heart to inform his aged mother that he was insolvent. Eventually, a will disinheriting him in favor of his daughter was drafted, but the intestate died just hours before her ap-

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claimer serves to cure a defective estate plan; and, inevitably, the likelihood of poor estate planning increases in inverse proportion to the wealth of the benefactor.225 Granting a right of insolvent disclaimer thus once more fulfills the goal of providing families with legal means to compensate for a relative lack of financial means.226 In addition, voluntary creditors almost certainly will not have relied on a debtor’s prospects of inheritance when they set the price of credit.227 At the same time, a case can be made for carving out an exception for involuntary creditors—tort victims, alimony and child support creditors, and so on—whose claims rest upon a stronger moral foundation. What is more, disclaimers to thwart the claims of vulnerable involuntary creditors could have adverse economic consequences. One cannot say that the Commissioners’ attitude toward this issue was indifferent. On the contrary, they recognized its importance, and in plenary session they debated insolvent disclaimer at length.228 Some Commissioners expressed disquiet over omitting so essential a topic from the scope of UDPIA.229 The majority nonetheless preferred that course.230 The Commissioners on the winning side voiced a variety of concerns: Several felt that the issue lay within the province of the Uniform Fraudulent Transfer Act;231 others warned that a rule intervening to bar insolvent disclaimer would create a theoretical anomaly endangering the coherence of the Act as a whole;232 others indicated that the issue required additional study;233 others considered the body of Commissioners to be hopelessly deadlocked on the issue;234 and the Reporter himself maintained that “[t]he National Conference of Commissioners believed it was inappropriate for the

pointment with the attorney to execute the will. Transcript of Oral Argument at 14, Drye v. United States, 1999 WL 1050103. 225. By analogy, see supra note 39. 226. See supra note 40 and accompanying text. 227. In the unusual case where that is not so, debtor and creditor can enter into an enforceable contract under which the debtor promises not to disclaim. See Badouh v. Hale, 22 S.W.3d 392, 396-97 (Tex. 2000) (holding that where debtor pledged an expectancy of inheritance to a creditor she thereby disabled herself from subsequently disclaiming the inheritance). 228. Plenary Reading, 1998, supra note 29, at 16, 31-32, 37-42, 48-51, 77-85; Plenary Reading, 1999, supra note 29, at 35-47, 59-78, 92. 229. Plenary Reading, 1999, supra note 29, at 35-47, 59-78, 92. But compare id. at 85 (suggesting that the issue typically arises in a federal bankruptcy proceeding, where UDPIA is irrelevant). 230. A motion from the floor to amend UDPIA to provide that a disclaimer would not defeat a pre- or post-judgment judicial lien on inherited property obtained by a creditor of the beneficiary was defeated on a voice vote. Id. at 59-62, 76-78. 231. Plenary Reading, 1998, supra note 29, at 39-40; Plenary Reading, 1999, supra note 29, at 70, 74. 232. See infra notes 238-39 and accompanying text. 233. Plenary Reading, 1999, supra note 29, at 72. 234. Plenary Reading, 1998, supra note 29, at 84-85.

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UDPIA to set policy in this area, especially given the lack of agreement among the states.”235 None of these arguments for inaction is terribly convincing. To suggest that insolvent disclaimer falls singularly within the category of fraudulent conveyance law is simply wrong: Insolvent disclaimer is a borderline issue, overlapping two legal realms.236 Unless one set of drafters takes the lead, the Commissioners risk imitating Alphonse and Gaston and succumbing to the paralysis of bilateral deference.237 Theoretical coherence presents an equally frivolous concern. The Commissioners reasoned that disclaimer law “rests on a fiction that [the beneficiary doesn’t] get the property”238—in other words, because of the disclaimer, her title to the inherited property vanishes retroactively. “And without that fiction, this act won’t work. The minute you start toying with that fiction by saying that creditors should have some right, you might thereby destroy the entire act.”239 This assertion is reminiscent of Learned Hand’s famous defense of the formal logic of future interests law: “I am quite aware that this is all largely [a] matter of words, but . . . unless we treat such formal distinctions as real, [the] law will melt away and leave not a rack behind.”240 The fallacy underlying both statements is that law depends on abstract precepts such as those provided by title theories (or vesting theories). It does not. The abstractions of title serve no greater purpose than to summarize the substantive right of disclaimer, and we may complaisantly twist them out of shape as public policy dictates—or, for that matter, dispense with them entirely.241 In fact, UDPIA wisely does dispense with them, rendering the instant concern moot, as well as formalistic.242 Of course, as some Commissioners thought, the issue of insolvent disclaimer merits further study—in the same way that every legal issue does. The subject is not a new one, having already been explored

235. LaPiana, Memorandum, supra note 65, at 20. 236. See the discussion in Hirsch, supra note 9, at 588-91, 652-53. 237. That may have happened before within the Uniform Acts. Hirsch, Trusts for Purposes, supra note 10, at 947 n.149; see also id. at 936 n.104. 238. Plenary Reading, 1999, supra note 29, at 70, 92 (quotation at 70). 239. Id. 240. Comm’r v. City Bank Farmers’ Trust Co., 74 F.2d 242, 247 (2d Cir. 1934), rev’d on other grounds, 296 U.S. 85 (1935). 241. Hirsch, supra note 9, at 604-05. I am not the first to take a dim view of the “confusing and unnecessary fictions” of title theory. HERBERT T. TIFFANY, LAW OF REAL PROPERTY § 1058, at 463 (Basil Jones ed., 3d ed., Callaghan & Co. 1939). 242. UDPIA, supra note 2, §§ 5(f) & cmt., 6 cmt. (“This Act continues the effect of the relation back doctrine, not by using the specific words, but by directly stating what the relation back doctrine has been interpreted to mean.”); LaPiana, supra note 11, at 57-58. Prior Uniform Acts were more formalistic in this respect. E.g., UNIF. PROBATE CODE § 2-801(d)(1), (2) (amended 1997).

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a good deal.243 And while the plenary debates certainly substantiate the want of consensus among the Commissioners on the issue, they operate (at least at sessions of the National Conference) on the principle of majority vote; consensus is unnecessary. Finally, the Reporter’s assertion that “the lack of agreement among the states”244 justified a hands-off policy seems a rather surprising one for a Uniform Law Commissioner to make. The upshot is that a golden opportunity to clarify a key issue—one that, when raised, will present a case of first impression in about half the states—was missed. If the Commissioners could reach no agreement on the matter, if they wavered over the optimal course to take, one wishes they had kept at it, even if that meant delaying UDPIA’s promulgation for a spell. In light of the costs of local litigation, their indecision comes at a price. As Justice Noah Swayne opined long ago, “It is almost as important that the law should be settled . . . as that it should be settled correctly.”245 And the price may be higher, even, than the Commissioners realized: For any state that simply replaces its current disclaimer statute with UDPIA will simultaneously wipe away whatever statutory law it already has on the subject of insolvent disclaimer (whether that law be explicit or the product of judicial construction).246 Accordingly, the proliferation of UDPIA could very well occasion a net decline in legal certainty, multiplying the number of states where the law of insolvent disclaimer is unresolved. The Commissioners could have avoided this last difficulty by promulgating—at the very least—alternative model provisions, thereby ensuring that legislators who enact UDPIA would not over-

243. See supra note 223. 244. See supra note 235 and accompanying text. 245. Gilman v. Philadelphia, 70 U.S. 713, 724 (1865). See also Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (Brandeis, J., dissenting) (paraphrasing Swayne without reference). 246. For example, in seven jurisdictions (Illinois, Indiana, Michigan, Nebraska, North Dakota, Virginia, and Wisconsin), courts have construed statutory language similar to that found in the Uniform Probate Code (“a disclaimer relates back for all purposes”) to permit insolvent disclaimer. See supra note 216. Enactment of UDPIA would overturn those decisions, because they construe statutes that would thereby be repealed, and because UDPIA contains no equivalent language. In all but one of those seven states, there exist no prior common law cases on point—and even in the exceptional state, the common law rule is doubtful! See In re Estate of Hansen, 248 N.E.2d 709, 712-13 (Ill. App. Ct. 1969). Having recently enacted UDPIA, North Dakota now finds itself in this predicament. UDPIA has overturned the state’s construction cases, In re Nistler, 259 B.R. 723, 727 (Bankr. D. Or. 2001); In re Estate of Opatz, 554 N.W.2d 813, 815-17 (N.D. 1996); Nielsen v. Cass County Soc. Servs. Bd., 395 N.W.2d 157, 15960 (N.D. 1986), without substituting any law in their place, and there are no state common law cases on point. In other states with explicit statutory provisions on point, e.g., MINN. STAT. ANN. § 525.532(C)(6) (West 1975 & Supp. 2001), passage of UDPIA verbatim would also decodify the law on point, again in many instances leaving behind a common law void.. Of the four states that have enacted UDPIA thus far, see supra note 4, only one has added to the Act a provision covering creditors’ claims, which bars disclaimers frustrating the claims of public assistance creditors. 2001 Or. Laws ch. 245, § 17.

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look the issue of insolvent disclaimer.247 Unfortunately, the Commissioners omitted to do even that much. B. Judicial Sales Having shied away from the main issue of insolvent disclaimer, the Commissioners did dip into it in one particular: Irrespective of how a state otherwise treats the subject, UDPIA provides that a judicial sale of inherited property to satisfy a creditor’s claim thereafter bars disclaimer of the property.248 The comment that accompanies this provision is confusing: The limitation ostensibly “ensures that title gained from a judicial sale by a personal representative will not be clouded by a possible disclaimer.”249 The oddity here is the reference to sale by a personal representative; ordinarily it is the sheriff who conducts a judicial sale.250 If the drafters mean to refer to judicial sales prompted by the acts of a personal representative—that is, foreclosures on property of the probate estate mortgaged by a personal representative251—then the provision appears unnecessary: Once property becomes subject to a mortgage, the mortgagee holds a proprietary interest in it, at which point the beneficiary can only disclaim the proceeds.252 On the other hand, in some jurisdictions an unsecured creditor of the beneficiary can garnish or levy execution directly against her interest in a probate estate,253 and the property thus seized could be liquidated thereafter at a judicial sale, all without any involvement by the personal representative. By its plain language, the text of UDPIA applies in this situation as well,254 but the accompanying comment creates some doubt about the matter. At any rate, we may readily conclude that the reference in the comment to 247. Commissioners charged with drafting other Uniform Acts have had occasional recourse to this technique. E.g., U.C.C. § 2-318 (amended 1999). 248. UDPIA, supra note 2, § 13(b)(3) (“A disclaimer . . . is barred if . . . a judicial sale of the interest sought to be disclaimed occurs.”). Prior Uniform Acts and some forty state statutes include similar language. UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 5, 8A U.L.A. 149, 157 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 4(a), 8A U.L.A. 161, 174 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 4(a), 8A U.L.A. 179, 186 (1978); UNIF. PROBATE CODE § 2-801(e) (amended 1997); Hirsch, supra note 9, at 597 n.54. For a case interpreting one of these statutes, see Citizens State Bank v. Kaiser, 750 P.2d 422 (Kan. Ct. App. 1988). 249. UDPIA, supra note 2, § 13 cmt. 250. DOUGLAS G. BAIRD ET AL., CASES PROBLEMS AND MATERIALS ON BANKRUPTCY 8-9 (3d rev. ed., Foundation Press 2001). 251. Existing Uniform Acts grant personal representatives power to enter into such a transaction. UNIF. PROBATE CODE § 3-715(23) (amended 1997). 252. See Schmidt v. Collins, 556 N.E.2d 933, 935 (Ind. Ct. App. 1990) (holding that personal representative’s liquidation of a corporation, part of which was bequeathed to a beneficiary, did not preclude that beneficiary from subsequently disclaiming her share of the proceeds). 253. 6 PAGE, supra note 94, § 59.20, at 438-40; D.L.A. Kerson, Creditors and the Will Contest, 14 HASTINGS L.J. 18, 25-27 (1962). 254. See supra note 248.

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the personal representative was not intended to limit the scope of the text, since the drafters also indicate in the comment that the text “continues a provision from the earlier [Uniform] Acts,”255 and those Acts clearly barred disclaimers following judicial sales conducted on behalf of unsecured creditors.256 The question remains whether this rule represents good policy. Analysis suggests that it does not. If a state forbids insolvent disclaimer, of course, the rule preventing disclaimer following a judicial sale merges into the broader bar. Only if a state otherwise permits insolvent disclaimer is the rule significant, for it then forms an exception to the general principle that a beneficiary’s disclaimer will succeed in thwarting creditors. But what justifies that exception? The rationales for permitting insolvent disclaimer—implicit testamentary intent and the lack of creditor reliance—apply irrespective of whether the disclaimer precedes or follows a judicial sale. UDPIA sets off a race of diligence between creditors and the beneficiary, giving creditors an opportunity to exploit a beneficiary’s dilatoriness in individual cases. The drafters’ stated concern is that, without this bar, title gained at a judicial sale would be “clouded by a possible disclaimer.”257 In other words, the risk of a post-sale disclaimer would discourage buyers and thereby reduce the sums fetched for the property sold at auction to satisfy creditors. That, of course, causes no injustice or inefficiency from the perspective of the buyers, who know that any property acquired at a judicial sale comes without warranty of title.258 Nor does depressed bidding harm the interests of a beneficiary who does proceed to disclaim, for then the sale renders neither her nor her creditor worse off than they were before the sale. But if a beneficiary has no intention of disclaiming, the risk of disclaimer that nonetheless exists can chill bidding and thereby prove inefficient: The creditor will realize less from the sale than it would otherwise, and the infamous prospect of a liquidation of valuable property for a peppercorn, leaving the creditor with a sizable deficiency judgment, looms. If this was the image that frightened the Commissioners, it is a bugaboo. A beneficiary who does not intend to disclaim can ensure more robust bidding at a judicial sale through the simple expedient of executing a waiver of her right to disclaim.259 In that event, the 255. UDPIA, supra note 2, § 13 cmt. 256. UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 4 cmt., 8A U.L.A. 161, 175 (1978). 257. See supra note 249 and accompanying text. 258. BAIRD ET AL., supra note 250, at 9. 259. UDPIA expressly gives effect to waivers, which have always been effective under state law. UDPIA, supra note 2, § 13(a); Hirsch, supra note 9, at 617 & n.146.

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buyer’s risk of disclaimer disappears and liquidation value is preserved. In sum, one finds no policy justification for UDPIA’s rule concerning judicial sales. But the ultimate irony is that UDPIA’s drafters failed inadvertently even to implement the unfortunate rule they had intended! Recall that under the safe-harbor provision of UDPIA, a beneficiary retains the right to disclaim “under a law other than this [Act].”260 This provision neutralizes the bar on disclaimer following a judicial sale, because under the common law in jurisdictions that permit insolvent disclaimer, no such bar exists.261 VI. DEVOLUTION A. Present Interests Which brings us finally to the substantive consequences of a disclaimer. Once a beneficiary disclaims an inheritance, who takes the property in her stead? The answer given in UDPIA is the same one found in prior Uniform Acts, which in turn developed out of the common law: In the absence of testamentary instructions, disclaimed property goes to whomever would have received it had the disclaimant predeceased the benefactor, as determined by the state’s antilapse and intestacy statutes;262 but if a will does anticipate this contingency by naming a substitute beneficiary in the event that the primary beneficiary disclaims, that stipulation controls the devolution of the property.263 In 260. UDPIA, supra note 2, § 4(b). 261. The common law decisions are few, but unanimous on this point. Lehr v. Switzer, 239 N.W. 564, 566 (Iowa 1931); Tarr v. Robinson, 27 A. 859, 860 (Pa. 1893); see also Kearney v. Crawford, 151 So. 293, 294 (Fla. 1933) (refusing to enjoin an execution sale because it would not affect the beneficiary’s rights). Notice, however, that this safe harbor only applies to disclaimer by a devisee, since an heir cannot disclaim at common law. See supra note 107 and accompanying text. 262. UDPIA, supra note 2, § 6(b)(3). On the application of UDPIA to disclaimer by an heir, see infra note 296. For similar provisions in prior Uniform Acts, see UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 4, 8A U.L.A. 149, 155 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 3, 8A U.L.A. 161, 172 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 3, 8A U.L.A. 179, 185 (1978); UNIF. PROBATE CODE § 2-801(d) (amended 1997). Virtually every state statute has adopted this approach. E.g., TEX. PROB. CODE ANN. § 37A (Vernon 1980 & Supp. 2001); Ernst v. Shaw, 783 S.W.2d 400, 401 (Ky. Ct. App. 1990) (reading the state disclaimer statute in pari materia with the antilapse statute); Estate of Cooper, 342 N.Y.S.2d 995, 998 (Sur. Ct. 1973) (same). Cf. LA. CIV. CODE ANN. art. 965 (West 2000) (discussed infra note 266); MD. CODE ANN., EST. & TRUSTS § 9-204(a)(1) (1991) (applying a slightly different rule, in light of the state’s unusual antilapse statute, see infra note 274). On the common law, see infra note 288. 263. UDPIA, supra note 2, § 6(b)(2). For equivalent provisions in prior Uniform Acts, see supra note 262. Again, this is the universal statutory rule. For an early common law case, see Luques v. Dresden, 77 Me. 186, 188-93 (1885); see also Dare v. New Brunswick Trust Co., 194 A. 61, 63 (N.J. Ch. 1937) (dicta). Under UDPIA, a contingency clause specifying how a bequest will devolve in the event the beneficiary predeceases is broadly construed to govern the devolution of a bequest a surviving beneficiary disclaims. UDPIA, supra note 2, § 6(b)(2) & (3)(A) &

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short, UDPIA declines to innovate here,264 and the finished product is superficially uncontroversial. Within the Uniform Law Commission, however, no provision of UDPIA elicited greater controversy. For the drafters of UDPIA had had quite a different provision in mind. Under the version of the Act submitted for approval to the National Conference of Commissioners, a disclaimed bequest went (in default of testamentary provision) to the descendants of the disclaimant; and if there were none, the bequest devolved instead to whomever constituted the disclaimant’s heirs.265 This proposal was anything but conventional.266 Considered structurally, it would have distinguished the problem of disclaimer from the problem of lapse, despite their abiding theoretical association.267 The drafters defended their position on two grounds. First, and primarily, as to substance: Under most antilapse statutes, when a beneficiary under a will predeceases, the descendants of that beneficiary take in her place only if the beneficiary was a blood relative; otherwise, the bequest flows into the residue. This framework proceeds from the assumption that most testators have ties extending to the whole family of a blood relative; the one named in the will simply takes precedence over her children, whom the testator would probably wish to benefit were she unavailable to enjoy the bequest. But the cmt., ex. 1(c). For early common law cases, see infra note 288. This rule of construction is unlikely to reflect the typical benefactor’s intent. For a criticism of the rule, see Richard V. Wellman, Disclaimer Talk, PROB. L.J. OHIO, Sept.-Oct. 2000, at 5, 6. 264. UDPIA helpfully omits two unfortunate bits of verbiage found in previous Uniform Acts that had spawned needless litigation in the past: provisions indicating that a disclaimer relates back to the death of the benefactor “for all purposes” and “is binding upon . . . all persons claiming through or under him.” UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 4(a), (c), 8A U.L.A. 149, 155-56 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT §§ 3, 4(c), 8A U.L.A. 161, 172, 174 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT §§ 3, 4(c), 8A U.L.A. 179, 185-86 (1978); UNIF. PROBATE CODE § 2-801(d)(1), (d)(3) (amended 1997). See, e.g., Hunt v. United States, 566 F. Supp. 356, 357-58 (E.D. Ark. 1983); Estate of Bryant v. Bryant, 196 Cal. Rptr. 856, 862 (Ct. App. 1983); In re Estate of Estes, 718 P.2d 298, 301-02 (Kan. 1986); In re Estate of Burmeister, 594 P.2d 226, 229 (Kan. 1979); Ernst, 783 S.W.2d at 401; In re Estate of McCutcheon, 699 A.2d 746, 750 (Pa. Super. Ct. 1997). 265. Plenary Reading, 1999, supra note 29, at 25-26. The idea was proposed by Professor Richard Wellman. Id. at 30. The provision appeared on an errata sheet accompanying the Uniform Disclaimer of Property Interests Act, Draft for Approval, July 23-30, 1999. 266. One jurisdiction nevertheless has enacted a very similar provision that beat UDPIA’s drafters to the punch: Under revisions to the Louisiana Civil Code introduced in 1997, a disclaimed bequest goes to the descendants (but not other heirs) of the disclaimant; only if there are no descendants is the disclaimed bequest then treated as having lapsed. LA. CIV. CODE ANN. art. 965 (West 2000). Surprisingly, one finds no discussion of this statute in the records of the plenary debate, or in other materials prepared by UDPIA’s drafters. For a brief criticism of the statute, see Cynthia Ann Samuel, The 1997 Successions and Donations Revision—A Critique in Honor of A.N. Yiannopoulos, 73 TUL. L. REV. 1041, 1060-61 (1999). 267. “It has been generally thought that devolution in the case of disclaimer should be the same as in the case of lapse.” UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT prefatory note, § 3 cmt., 8A U.L.A. 161, 163, 172 (1978); see also Suggestions for a Model Act, supra note 3, at 136-37.

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ties binding the testator to other beneficiaries (typically a spouse, employee or friend) are more likely to be narrow, not necessarily including their kin (viz. a stepchild, the child of an acquaintance); if they are unavailable to enjoy their bequest, then the typical testator probably would prefer to substitute other takers under the will.268 Disclaimer, the drafters argued, presents a different issue: Here, the beneficiary is available to enjoy the bequest, and she will choose to decline it only if by so doing the property devolves in a manner that suits her—by hypothesis, to her own close relatives. Presumably, the typical benefactor intends to give effect to the beneficiary’s own preference regarding the property’s devolution, for the benefactor thereby facilitates a disclaimer and expands the beneficiary’s options.269 Second, and secondarily, as to clarity: A disclaimer of valuable property serves the purpose of postmortem estate planning only if the beneficiary can calculate with certainty who would be next in line to receive it. Although the existing statutes governing redistribution of property bequeathed to a predeceasing beneficiary under a will are clear, that may not be so where the governing instrument is instead a will-substitute. Many antilapse statutes fail to cover willsubstitutes explicitly, and the breadth of their application often remains to be construed.270 By linking the rules of disclaimer to those of lapse, prior Uniform Acts had imported this undesirable element of doctrinal uncertainty.271 Both of these arguments are persuasive, by and large. As always in inheritance law, testamentary intent is key; we should honor the actual or imputed intent of the benefactor when we determine the disposition of disclaimed property. Here, however, we may reasonably conclude that, had they consulted about the matter, the benefactor would have agreed to empower the beneficiary to redirect her inheritance to someone else—not so much a delegation of authority (as when appointing a trustee) as a recognition on the part of the benefactor that the power to donate (or, more precisely in this context, the power to donate free from taxes and creditors’ claims) is one of the ways a person whom the benefactor wishes to enrich can derive utility out of her inheritance. Disclaimed property should devolve to whomever the named beneficiary would prefer because that is what the benefactor in turn prefers. 268. For discussions of the policies underlying lapse and traditional antilapse statutes, see Susan F. French, Antilapse Statutes Are Blunt Instruments: A Blueprint for Reform, 37 HASTINGS L.J. 335, 336-44 (1985); Philip Mechem, Some Problems Arising Under Anti-Lapse Statutes, 19 IOWA L. REV. 1, 1-3 (1933); Patricia J. Roberts, Lapse Statutes: Recurring Construction Problems, 37 EMORY L.J. 323, 328-39 (1988). 269. Plenary Reading, 1999, supra note 29, at 31-33, 83-85, 88-90. 270. The few construction cases have come out both ways. MCGOVERN & KURTZ, supra note 82, § 8.3, at 304, 306-07. 271. Plenary Reading, 1999, supra note 29, at 33-34, 78-79, 82-85, 87-90.

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This analysis initially suggests an even more radical solution to the devolution problem. Instead of adopting a fixed rule, lawmakers could allow a disclaimer to take the form of an assignment by the beneficiary to whomever she chooses in each case and thereby effectuate her preference precisely. Judged purely as a matter of theory, such a rule has much to recommend it. It represents the logical culmination of the concept of a disclaimer as a surrogate for pre-mortem estate planning,272 for the distribution resulting from an assigned disclaimer would also have resulted from an ideal, hypothetical estate plan executed on consultation with the beneficiary at the moment before the benefactor’s death. Considered practically, of course, the Internal Revenue Code refuses to acknowledge directed disclaimers as tax-qualified,273 irrespective of the benefactor’s wishes, even if state legislators could be persuaded to render them effective under local fraudulent conveyance law.274 At least in cases where federal taxes hang in the balance, UDPIA must provide a fixed default rule specifying the devolution of disclaimed property. Given, then, that a default rule governing devolution must come into play, which one is most likely to comport with the typical beneficiary’s (and hence the benefactor’s) preferences? Like all questions concerning default rules, this one cries out for empirical inquiry— without evidence, we can only offer unsubstantiated conjectures about probable intent. Undoubtedly, the answer will vary from case to case. Many beneficiaries, for example, disclaim for purposes of marital deduction planning, which can only proceed if the disclaimed property will devolve to the benefactor’s spouse rather than to the beneficiary’s descendants.275 Still, we may surmise that, considered in the aggregate, beneficiaries are most likely to want their descendants or other heirs to receive disclaimed property276—just as the drafters of UDPIA had proposed. 272. See supra notes 39-40 and accompanying text. 273. I.R.C. § 2518(b)(4) (1989). 274. State law has always distinguished disclaimers from assignments and has never given effect to a disclaimer, as such, where the disclaimant names the alternative beneficiary. E.g., In re Estate of Lyng, 608 N.W.2d 316, 318-20 (S.D. 2000); see also UNIF. FRAUDULENT TRANSFER ACT §§ 1(12), 4(a), 7A pt. 2 U.L.A. 266, 276, 301 (1984). Compare the law of Maryland, where—uniquely—the state antilapse statute passes bequests to a predeceasing beneficiary instead to the heirs or devisees of that beneficiary, thereby allowing the predeceasing beneficiary to control the devolution of a lapsed bequest. MD. CODE ANN., EST. & TRUSTS § 4403(b) (1983). Were Maryland’s disclaimer statute to treat a disclaimed bequest as the equivalent of a lapsed bequest, disclaimants in Maryland would be able to control the devolution of disclaimed property as well. To forestall that result, the local disclaimer statute passes a disclaimed bequest to whomever would receive it if the disclaimant had died intestate immediately before the death of the benefactor. Id. § 9-204(a)(1). 275. BRAND & LAPIANA, supra note 8, at 126-29; NEWMAN & KALTER, supra note 34, at 47; WENIG, supra note 34, at A-8 to A-11; Llewellyn et al., supra note 34, at 44. 276. At least one court has made this inference (albeit prior to passage of the federal Generation Skipping Transfer Tax). In re Estate of Fienga, 347 N.Y.S.2d 150, 152 (Sur. Ct. 1973)

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Of course, the drafters were also right to favor a clear rule of devolution. The need for clarity, however, is here magnified by a larger problem that also needs attention—to wit, the want of relief for a mistaken disclaimer, one induced by a misunderstanding concerning the distribution of property that results from this Act. Under universal state law, a disclaimant cannot (absent fraud) rescind a disclaimer on the ground of mistake.277 By contrast, under the closely analogous law of gifts, courts allow a donor to rescind an inter vivos transfer induced by similar sorts of mistake, when proven by clear and convincing evidence, to prevent unjust enrichment.278 This aspect of disclaimer law calls for reform, but UDPIA sidesteps the issue, leaving it to be sorted out locally.279 At any rate, even the drafters’ reform proposal proved too reformist for the Commissioners.280 At the instance of the National Confer(“Those renunciations . . . most frequently encountered are purposed to pass the share of the . . . devisee to his own issue.”). 277. For the most recent cases, see In re Estate of Fleenor, 17 P.3d 520, 524-26 (Or. Ct. App. 2000); In re Estate of Holden, 539 S.E.2d 703, 709-10 (S.C. 2000); see also, e.g., Northwestern Nat’l Cas. Co. v. Doucette, 817 S.W.2d 396, 400-01 (Tex. App. 1991); Webb v. Webb, 301 S.E.2d 570, 574-77 (W. Va. 1983); WENIG, supra note 34, at A-57 to A-58, A-65 to A66; E. Diane Thompson & Christine H. Buchanan, The Law of Unintended Consequences Applied to Disclaimers, PROB. PRAC. REP., Mar. 2000, at 1, 4-6. 278. 4 GEORGE E. PALMER, THE LAW OF RESTITUTION § 18.6, at 26-28 (1978); John H. Langbein & Lawrence W. Waggoner, Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?, 130 U. PA. L. REV. 521, 524-28 (1982); see also RESTATEMENT (THIRD) OF PROP.: DONATIVE TRANFERS § 12.1 (Tentative Draft No. 1, 1995) (extending the same principle to the law of wills). 279. For the brief discussion of this issue in the plenary debate over UDPIA, see Plenary Reading, 1998, supra note 29, at 38-39. UDPIA contains no general provision devoted to the issue of mistaken disclaimers; nor had Prior Uniform Acts. The one aspect of the law of mistakes relating to disclaimers dealt with under UDPIA is disposed of with notable harshness. If a disclaimer the beneficiary mistakenly believes to be valid is barred under UDPIA, the disclaimer still “takes effect as a transfer,” and hence “the person attempting the disclaimer will bear any transfer tax consequences.” UDPIA, supra note 2 § 13(f) & cmt. Hence, for example, if the beneficiary attempts to disclaim after taking an action deemed to constitute acceptance of the inheritance, the disclaimer is barred, id. § 13(b)(1), yet a taxable transfer to the alternative beneficiary still occurs—almost certainly not the result that the beneficiary would prefer at this point! The Commissioners justify this outcome simply by stating that “[t]his provision removes the ambiguity that would otherwise be caused by an ineffectual refusal to accept property,” an ambiguity they could equally have avoided by rendering the attempted disclaimer void—the outcome that UDPIA dictates, seemingly inconsistently, when a disclaimer is not barred, but rather is improperly formalized. Cf. id. § 5(c). In light of the grave risks of mistaken disclaimers, beneficiaries might seek to disclaim conditionally, the condition being that the disclaimed property devolve in the manner that the disclaimant anticipates, and that the disclaimer itself be fully effective. Unfortunately, however, UDPIA also neglects to resolve the effectiveness of conditional disclaimers. See supra note 132. 280. Opponents of the defeated provision had argued that it made disclaiming too attractive, and on that account “maybe Internal Revenue might have some problem with the [A]ct.” Plenary Reading, 1999, supra note 29, at 36, 73, 79-80. Given that the benefactor could have achieved the same result via better tax planning, that fear seems groundless. Certainly, the effectiveness of a disclaimer executed solely to derive tax efficiencies is unquestioned. E.g., In re

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ence, the provision was deleted and the orthodox rule, remarked earlier,281 was reinstated.282 Looking back on the matter, the architect of the abandoned provision concludes that “the proposal failed because it appeared to depart too sharply from the [traditional] theory of disclaimers with which most lawyers are comfortable . . . . In retrospect, it is good that the proposal failed,” he adds, because “the proposed change would make the new law controversial in state and local bar circles, reducing if not eliminating prospects for enactment.”283 To which the only adequate response is one that was made by a Commissioner during the plenary debate, whose words fairly deserve to be hoisted on a banner at every proceeding of the National Conference: “[I]f we are just going to regurgitate . . . bad law, then what are we doing here?”284 Quite so: The point of the exercise is to improve the law, and legislators will either grasp that opportunity or they will not. Nor should one controversial provision endanger UDPIA’s passage, since legislators who find it objectionable can always enact UDPIA with modifications—precisely what they should now prepare to do in reverse!285 If the defeat of this proposal was a blessing in disguise, I dare say, it was a pretty good disguise.286 Public policy to one side, the instant provision of UDPIA (as finally adopted) also suffers from a technical problem. That problem arises when the provision is combined with another one that we have wrestled with before: namely, the section rendering UDPIA a nonexEstate of Schock, 543 A.2d 488, 490 (N.J. Super. Ct. Law Div. 1988) (“One must be just in paying taxes due under the law; one need not be generous.”); In re Guardianship of Kramer, 421 N.Y.S.2d 975, 977-78 (Sur. Ct. 1979). In the same vein, opponents argued that the provision made disclaiming to avoid creditors’ claims too easy, again ignoring that better estate planning would have achieved that result as well. Plenary Reading, 1999 supra note 29, at 35-39, 79-80. Finally, opponents argued that lawyers had relied on the traditional rule when drafting existing wills—although one may question how many wills actually anticipate the (unlikely) event of a disclaimer and hence how great the transition costs to a new rule would be. Id. at 39, 73, 80-82, 84-86, 91-92. See also Samuel, supra note 266, at 1060-61 (criticizing the new Louisiana statute, see LA. CIV. CODE ANN. art. 965 (West 2000), which is similar to the UDPIA proposal, see supra note 266, as violative of probably testamentary intent). 281. See supra note 262 and accompanying text. 282. The motion to remove the reform proposal carried by a vote of 72 to 56. Plenary Reading, 1999, supra note 29, at 93. 283. Wellman, supra note 263, at 7. 284. Plenary Reading, 1999, supra note 29, at 67 (Commissioner Ossen, discussing the issue of creditors’ claims and ascribing the slogan to Professor Curtis Reitz). 285. Having recanted and given his blessing to UDPIA’s traditional rule of devolution as finally adopted, Professor Wellman urges estate planners to draft around it by including in testamentary instruments clauses specifying that disclaimed bequests go to the descendants or heirs of the disclaimant. “The survivors of clients will appreciate the resulting clarity of the plan and the usefulness of the options involved.” Wellman, supra note 263, at 7 & passim. But there is something very wrong with a default rule that everyone is advised to supersede! Surely, the point is to craft desirable default rules that reduce transaction costs and stand in for poor planning. 286. To paraphrase one of history’s wittiest politicians. See RICHARD HOUGH, WINSTON AND CLEMENTINE 520 (1990).

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clusive safe harbor, hence allowing persons operating under the Act to disclaim in the alternative under the common law.287 Common law rules governing the devolution of disclaimed property were never terribly clear, but it remains entirely possible that a state court, when compelled to blow the dust off ancient precedents, will find them to mandate rules differing from those set out in the statutory language of UDPIA.288 Were that ever to happen, two conclusions would follow. 287. UDPIA, supra note 2, § 4(b). See supra notes 22-25 and accompanying text. 288. The common law cases were inconsistent and frequently vague on the question of whether a disclaimed bequest should be treated as the equivalent of a lapsed bequest (i.e., where the beneficiary dies between the time when the will is executed and the testator’s death) or of a void bequest (i.e., a bequest ineffective for other reasons, for instance because the beneficiary was already dead when the will was executed). See, e.g., McNeely v. McNeely, 186 S.E.2d 105, 108 (Ga. 1971) (disclaimer “has the same legal effect as a lapse”); In re Estate of Rohn, 175 N.W.2d 419, 422 (Iowa 1970) (by virtue of a disclaimer, “[t]here is no lapsed devise, for [the beneficiary] has . . . extinguished the devise”); Greely v. Houston, 114 So. 740, 742 (Miss. 1927) (“when a devisee . . . refuses to accept a devise . . . , the property devised . . . to him will be dealt with as if the devise . . . had not been made”); Albany Hosp. v. Hanson, 108 N.E. 812, 815 (N.Y. 1915) (“As the result of the rejection by the [beneficiary] of the devise . . . that devise lapsed.”); Perkins v. Isley, 32 S.E.2d 588, 591 (N.C. 1945) (upon disclaimer “the devise . . . is lapsed or void, and the gift passes . . . to the heirs at law”); Peckham v. Newton, 4 A. 758, 761 (R.I. 1886) (equating disclaimed bequest with “lapsed and void . . . legacies”); Watson v. Wall, 93 S.E.2d 918, 926 (S.C. 1956) (disclaimed bequest devolves “like one that has lapsed . . . or is void . . . or otherwise ineffectual”); Bradford v. Leake, 137 S.W. 96, 100 (Tenn. 1911) (disclaimed bequest “stood in the category of a lapsed or void devise”); Milligan v. Greeneville Coll., 2 S.W.2d 90, 93 (Tenn. 1928) (equating disclaimed bequest with one that “lapses, [or] turns out invalid”); see also RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANFERS § 34.2 cmt. d (1992) (equating disclaimer with lapse); 3 AMERICAN LAW OF PROPERTY, supra note 94, § 14.15 at 631 & n.24 (noting conflicting lines of early cases). The devolution of lapsed and void bequests can differ under the common and/or statutory law of some states, rendering the distinction potentially significant. ATKINSON, supra note 94, at 786; 4 PAGE, supra note 94, §§ 33.54-.55; 6 id. §§ 50.21-.22; see also, e.g., MD. CODE ANN., EST. & TRUSTS §§ 4-403, 4-404 (1991). For example, whereas UDPIA indicates clearly that the state antilapse statute will operate to dictate the devolution of a disclaimed bequest, UPDIA, supra note 2, § 6(b)(3) & cmt., exs. 1(a) & 1(b), that may not be the exclusive outcome if local common law deems a disclaimed bequest to be void rather than to lapse. See Howland v. Stone Found., 243 N.E.2d 892, 893-96 (Ohio Prob. Ct. 1969) (holding that a bequest disclaimed by the child of the benefactor devolved at common law to the residuary legatees despite the fact that the disclaiming child had children and would have come within the purview of the state’s antilapse statute had it applied; but without expressly addressing the potential application of the antilapse statute to the case at issue); see also Robert C. Bensing, The Ohio Anti-Lapse Statute, 28 U. CIN. L. REV. 1 (1959) Margaret V. Turano, Practice Commentaries, in N.Y. EST. POWERS & TRUSTS § 2-1.11, at 241, 243 (McKinney 1998) (asserting that the antilapse statute would not govern devolution of property disclaimed under the common law). Furthermore, courts divided over how narrowly to construe contingencies triggering substitute bequests. Compare Featherstone v. Pass, 60 S.E.2d 236, 237-38 (N.C. 1950) (holding that a clause naming a substitute beneficiary in the event that the primary beneficiary failed to fulfill a condition controlled the devolution of the property when instead the primary beneficiary disclaimed the bequest); and In re White’s Estate, 34 A. 321, 321-23 (Pa. 1896) (same); and Brown v. Momar, Inc., 411 S.E.2d 718, 720-23 (Ga. Ct. App. 1991) (holding under a statute that a clause naming a substitute beneficiary in the event that the primary beneficiary died controlled the devolution of the property when instead the primary beneficiary disclaimed the bequest), with In re Waring’s Will, 56 N.E.2d 543, 545 (N.Y. 1944) (holding that a clause naming a substitute beneficiary in the event that the primary beneficiary died did not control the devolution of the property when instead the primary beneficiary disclaimed the bequest); and Howland, 243 N.E.2d at 894-96 (same). See also MCGOVERN & KURTZ, supra note 82, § 8.3, at 312 (remarking a related line of inconsistent

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First, disclaimants in a jurisdiction that enacts UDPIA will discover that they have a limited choice to make between the rules of devolution contained within and without the Act. Second, any such disclaimant will very likely forfeit the ability to make a tax-qualified disclaimer under the Internal Revenue Code.289 Needless to add, the drafters of UDPIA cannot have intended that result. They simply failed to appreciate the combustibility of these two, independently benign legal elements when they react to form a compound. The irony is that by conceiving UDPIA as an “enabling statute,” which is “designed to allow every sort of disclaimer,” the drafters went a step too far and in consequence may have disabled the Act as a vehicle for tax planning.290 B. Future Interests The problem of devolution grows trickier still in connection with future interests. Suppose, to take the simplest of simple cases, the benefactor’s will creates a testamentary trust “to A for life, remainder to B.” Notice that we now have more than one scenario to ponder. The beneficiary of the preceding life estate may disclaim, or, in the alternative, the beneficiary of the succeeding remainder may disclaim. Each possibility raises distinct (albeit related) problems. 1. Preceding Interests Let us begin with disclaimer of the life estate. Should lawmakers now accelerate the remainder so that B takes the interest immediately upon the benefactor’s death (thus, in effect, granting the disclaimed life estate to B)? Or should lawmakers sequester A’s life estate until A’s actual (and not constructive) death for the benefit of the testator’s residuary legatees (if any) or heirs—thus, granting the disclaimed life estate to them, pur autre vie?

cases). The local common law rule of construction could differ from UDPIA’s rule, thus again rendering the scheme of devolution under UDPIA nonexclusive. See supra note 263. 289. See I.R.C. § 2518(b)(4) (1989) (requiring that a disclaimer be made “without any direction on the part of the person making the disclaimer” in order for it to be tax-qualified). 290. UDPIA, supra note 2, prefatory note. Perhaps I am being an alarmist here: A number of state statutes have included safe-harbor provisions for some time, see supra note 25, without provoking a challenge by the Tax Commissioner. On the other hand, the fact that no such challenge has yet occurred does not mean that it will never occur, after the issue is brought to light. One may add that the problem raised here would have been even more acute under the reform provision proposed by UDPIA’s drafters but overturned by the National Conference; that provision unquestionably deviated from the rules of devolution found in the common law. See supra note 265 and accompanying text. The problem can best be avoided by revising the safe-harbor provision, rather than by modifying the devolution provision. Once UDPIA is amended to bar disclaimer under the common law, drafters are free to reform further the rules of statutory devolution without endangering a disclaimer’s tax qualification under the Internal Revenue Code.

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Prior Uniform Acts called for acceleration (although without clarifying whether this principle constitutes a rule of law or a default rule), and UDPIA adopts the same principle (unfortunately, together with the same ambiguity): “[u]pon the disclaimer of a preceding interest, a future interest . . . takes effect as if the disclaimant had died . . . immediately before the time of distribution,” which in the case of a present life estate is the benefactor’s death.291 Thus, in our last example, if A disclaims the life estate, B’s remainder accelerates, providing B with immediate possession. It is unclear whether the benefactor can avoid this outcome, even by express provision in the governing instrument. Apart from this last oddity, the result appears sound—at least in the trivial case where B’s remainder is not a contingent interest. The relevant issue, as always, is what result the typical benefactor would prefer. In this case, the benefactor has designated a taker to follow

291. UDPIA, supra note 2, § 6(b)(4). To the same effect, see UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 3 & cmt., 8A U.L.A. 161, 172 (1978); UNIF. PROBATE CODE § 2-801(d)(1) (amended 1997). Like prior Uniform Acts, UDPIA is flawed in that it fails to indicate whether the benefactor remains free to supersede the principle of acceleration. The caveat for testamentary override of the statutory rule that governs other aspects of devolution is omitted from the subsection setting out the statutory rule of acceleration. Inclusio unius? Compare UDPIA, supra note 2, § 6(b)(3), with id. § 6(b)(4). The accompanying comment also fails to clarify this point. See id. § 6 cmt. The result will be needless litigation. For an observation of the same ambiguity in the Uniform Probate Code, see Medlin, supra note 3, at 1257-58. Cf. OHIO REV. CODE ANN. § 1339.68(G) (Anderson 1993 & Supp. 2000) (“Unless the donative instrument expressly provides that, if there is a disclaimer, there shall not be any acceleration of remainders or other interests, the . . . future interest . . . shall be accelerated.”). The Reporter for UDPIA has suggested independently that the omission of the caveat for testamentary override of the rule of acceleration was a conscious drafting decision intended to ensure that courts do not suspend acceleration on the basis of findings of implicit testamentary intent. LaPiana, Memorandum, supra note 65, at 6-7. Still, UDPIA’s language can be read even to foreclose explicit testamentary nullification of the rule of acceleration, contrary to the fundamental principle of freedom of testation! Courts had often imposed a common law rule of acceleration, but only as a default rule. E.g., Greely, 114 So. at 742 (“unless it is manifest from the provisions of the will that the testator intended otherwise”); cf., e.g., Blacque v. Kalman, 30 N.W.2d 599, 606 (Minn. 1948) (declining to accelerate a remainder on the ground that acceleration would contradict “the purposes and objects of the trust”); Aberg v. First Nat’l Bank in Dallas, 450 S.W.2d 403, 407-11 (Tex. Civ. App. 1970) (indicating that implicit intent should be effectuated in each case and citing to much prior case law); see also RESTATEMENT OF PROP. §§ 231-33 & cmts. (1936); LEWIS M. SIMES & ALLAN F. SMITH, THE LAW OF FUTURE INTERESTS §§ 796-99 (2d ed. & Supp., John A. Borron, Jr., ed., 2001); Annotation, Relinquishment of Interest by Life Beneficiary in Possession as Accelerating Remainder of Which There is Substitutional Gift In Case Primary Remainderman Does Not Survive Life Beneficiary, 7 A.L.R.4th 1084 (1981). For additional cases decided under statutes, see infra note 302. In one respect, UDPIA deviates from prior Uniform Acts: namely, when the disclaimed interest comprises an intermediate estate. Suppose the bequest goes “to A for life, then to B for life, then to B’s issue,” and B disclaims. Under both UDPIA and prior Uniform Acts, the remainder accelerates; but whereas under prior Uniform Acts, it accelerates to the benefactor’s death and hence goes to B’s issue at that time, under UDPIA the remainder accelerates only to the time when the disclaimed interest becomes possessory, here at A’s death, and goes to B’s issue at that time—a rule more closely analogous to the rule of convenience. Compare UNIF. PROBATE CODE § 2801(d)(1) (amended 1997), with UDPIA, supra note 2, § 6(a)(1), (b)(4).

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the life tenant, and we may readily infer that the testator’s usual motive for delaying the remainderman’s interest is nothing other than to give priority to the life tenant’s interest.292 The need for that priority having disappeared, the benefactor would likely choose to give effect to the remainder immediately. So far, so good. But what if the remainderman’s interest is contingent on events existing as of the death of the life tenant? Consider another simple case contemplated by UDPIA’s drafters: “to A for life, remainder to A’s descendants.” Under UDPIA, if A disclaims, the remainder accelerates, cutting out the afterborn children of A. Is it truly probable that the life tenant (and hence the benefactor) would prefer a result that fails to treat the life tenant’s children equally?293 And we face another problem. Notice preliminarily that, as a general principle, lawmakers have sought to limit the effect of a disclaimer to its subject matter and have not allowed it to alter other aspects of the benefactor’s estate plan.294 This principle serves to remove opportunities for a disclaiming beneficiary (paradoxically) to improve her position and thus, by colluding with others whose rights a disclaimer otherwise would affect, garner a larger inheritance than the benefactor intended.295 UDPIA implicitly endorses this policy,

292. Greely, 114 So. at 742 (“The testator’s manifest purpose in postponing the enjoyment of the property by the [remainderman] . . . was that [the disclaiming life tenants] might receive the income thereof . . . .”). Some testators do harbor as an independent motive for delaying a remainderman’s inheritance the desire to ensure that she is mature enough to manage property prudently at the time of its receipt. That motive is, however, typically effectuated by way of either an age contingency or a provision creating a vested interest with possession delayed until a specified age. Empirical confirmation of all this would still remain helpful. 293. UDPIA, supra note 2, § 6 cmt., ex. 5(a). In the analogous context of a disclaimer of a remainder, the drafters of UDPIA describe a result that fails to treat the remainderman’s children equally as an “anomaly.” Id. § 6 cmt., ex. 3. See also infra note 313. 294. E.g., Estate of Parsons, 163 Cal. Rptr. 70, 74 (Ct. App. 1980) (not allowing a disclaimer by an interested witness to the benefactor’s will to reinstate the purged bequest of another interested witness under the supernumerary rule); cf. Succession of Mitchell, 524 So. 2d 150, 152 (La. Ct. App. 1988) (dicta that disclaimer by an interested witness might serve as an appropriate means to give effect to an otherwise improperly executed will). Most courts have also construed disclaimer statutes to limit the effect of a disclaimer by an heir to redistribution of that heir’s share, rather than to a redistribution of the entire intestate estate (including other shares) on the assumption that the disclaiming heir predeceased the decedent. In re Estate of Fienga, 347 N.Y.S.2d 150, 155-57 (Sur. Ct. 1973); In re Estate of McCutcheon, 699 A.2d 746, 750 (Pa. Super. Ct. 1997) (dicta); Welder v. Hitchcock, 617 S.W.2d 294, 298-99 (Tex. App. 1981); but see Estate of Bryant v. Bryant, 196 Cal. Rptr. 856, 862-63 (Ct. App. 1983). 295. Similarly, some courts have barred a disclaimer that would operate to improve the disclaimant’s position without collusion. If, by disclaiming a bequest subject to testamentary restrictions, the beneficiary would gain the same property without restrictions as the benefactor’s residuary legatee or heir, some courts have held the disclaimer fraudulent, despite the general rule, e.g., Levin v. Dep’t of Hous. Pres. & Dev., 529 N.Y.S.2d 973, 974 (Sup. Ct. 1988), modified, 543 N.Y.S.2d 897 (App. Div. 1989), that the motive for a disclaimer is irrelevant. Estate of Nicely, 44 Cal Rptr. 804, 810 (Ct. App. 1965) (“That is not a renunciation; it is only an evasion of the trust’s restrictions.”); see also In re Estate of Aylsworth, 219 N.E.2d 779, 783 (Ill. App. Ct. 1966) (where collusion was involved); but see Luques v. Dresden, 77 Me. 186, 192

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which is reflected in a number of its provisions.296 In respect of disclaimers of preceding interests, however, the Act incongruously opens the door to manipulation. Consider the following bequest: “to A for life, and then to B if B survives A, otherwise to C.” Here, A’s life estate is followed by alternative contingent remainders. Under UDPIA, once again, if A disclaims, the future interest “takes effect as if the disclaimant had died . . . immediately before” the benefactor,297 in which case B’s remainder becomes vested and C’s is extinguished. Accordingly, A stands in a position to dictate the outcome of the contingency. In quiet collusion with B (who might be old or ill and unlikely actually to outlive A), A can ensure B’s inheritance by disclaiming, thereby effecting A’s immediate constructive death.298 Indeed, even without collusion, A’s opportunities for self-aggrandizement are magnified under UDPIA, which sets no time limit for a disclaimer.299 So long as A refuses to accept payments under the life estate300 and insists that the personal representative accumulate the income that would otherwise be paid to A, pending a decision to accept or reject the life estate, A can sit back and await events, deciding whether a distribution-altering disclaimer is or is not in A’s interest down the road. Suppose, for example, in the course of things B does predecease A and happens to name A (or a close relative) as residuary legatee under B’s will. By dis-

(1885) (holding the disclaimer effective); Palmer v. White, 784 P.2d 449, 451 (Or. Ct. App. 1989) (same). 296. UDPIA, supra note 2, § 6(b)(3)(A), (b)(4) & cmt., exs. 2(b), 5(b). As the drafters of the Uniform Probate Code put the matter, “[t]he desired effect . . . is to prevent [the disclaiming beneficiary] from affecting the basic division of . . . [the] estate by this maneuver.” UNIF. PROBATE CODE § 2-801 cmt. (amended 1997). Likewise, UPDIA “[p]revent[s] the use of a disclaimer to alter the shares of an intestate estate or of a multigenerational gift by limiting the effect of the disclaimer to the disclaimed interest.” LaPiana, supra note 11, at 59-60. On the other hand, UDPIA neglects to address the question of whether a beneficiary—or her fiduciary—of a bequest or trust subject to restrictions can disclaim where she will thereby gain the same property outright. See supra note 295. UDPIA grants beneficiaries and fiduciaries the right to disclaim restricted bequests and trusts without any stated qualification. UDPIA, supra note 2, § 5(a) & (b). Could such a qualification found in the common law be read into UDPIA via its provision receiving common law bars, id. § 13 (e); see also id. § 4(a), or does its language preempt the common law on this point? The matter is ambiguous and invites litigation. 297. UDPIA, supra note 2, § 6(b)(4). 298. Although disclaimers executed in the presence of collusion between the disclaimant and the alternative beneficiary are fraudulent per se, Hirsch, supra note 9, at 594, 624-26, collusion is difficult in practice to prove. See Drye v. United States, 152 F.3d 892, 900 (8th Cir. 1998) (observing simply that the alternative beneficiary’s decision to create a trust for the disclaimant funded with the disclaimed property “gives us considerable pause”); Estate of Monroe v. Comm’r, 124 F.3d 699, 710 (5th Cir. 1997) (“[T]he question . . . is whether the decision to disclaim was part of [a] mutually-bargained-for consideration or a mere unenforceable hope of future benefit [for the disclaimant] . . . that . . . springs from family ties . . . .”); Davis v. Davis, 494 So. 2d 393, 394-99 (Ala. 1986) (disclaimants themselves were unable to prove collusion). 299. See supra notes 72-73 and accompanying text. 300. Were A to accept a payment, A would forfeit her right to disclaim. UDPIA, supra note 2, § 13(b)(1).

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claiming, A can now ensure that (in spite of reality) B is deemed constructively to have survived A, with the result that B’s estate takes the remainder after all, which in turn permits A (or a close relative) to inherit the accelerated remainder from B! No provision of UDPIA functions to avert this outcome.301 Similar strategic opportunities exist in connection with a remainder to a class that is subject to open. By disclaiming under UDPIA, the life tenant can close the class at will. Thus, if the benefactor bequeaths “to A for life, remainder to the children of A and B,” and, let us say, at the benefactor’s death A already has children but B as yet does not, under UDPIA A can disclaim the life estate and thereby ensure that the remainder goes only to her own offspring—presumably not what the typical benefactor would have intended had the possibility of a disclaimer been anticipated.302 Barring a case-by-case exploration of intent, which would inject damaging uncertainty into the process of determining the distributive effect of a disclaimer, a default rule rendering disclaimers inoperative to resolve contingencies appears preferable.303 301. UDPIA provides as the one exception to the doctrine of acceleration that a remainder “held by the disclaimant is not accelerated in possession or enjoyment.” UDPIA, supra note 2, § 6(4). Here, however, the remainder is “held” by B, not by A. And even if we could argue that A holds the remainder through B’s estate, the only consequence of this provision is to delay possession or enjoyment, not to delay the resolution of contingencies. Plainly, this scenario was not what the drafters contemplated as the application of this provision. See id. § 6 cmt., ex. 5(b). And if B’s residuary legatee was not A herself but rather a close relative of A, no court could possibly stretch this provision to apply to the instant scenario. (I assume here and in the text that the remainder flows through the residue of B’s estate, although it could just as easily be the subject of a specific bequest under B’s will.) The possibility remains, however, that a court would find a disclaimer in these circumstances to be void as an extension of the common law principle, enunciated in some (but not all) cases, that a disclaimer executed to improve the disclaimant’s position is fraudulent, see supra note 295, and would then read that principle into UDPIA via either its provision receiving the common law into its interstices or its provision importing all common law bars on disclaimer. Id. §§ 4(a), 13(3). 302. For a case nonetheless reaching this result on these facts under a disclaimer statute, see Pate v. Ford, 376 S.E.2d 775, 776-77 (S.C. 1989); see also Commerce Trust Co. v. Fast, 396 S.W.2d 683, 686, 688-80 (Mo. 1965) (statutory disclaimer resulted in acceleration that extinguished contingent remainders); In re Thomson, 642 N.Y.S.2d 32, 32-33 (App. Div. 1996) (same); In re Estate of Gilbert, 592 N.Y.S.2d 224, 227-28 (Sur. Ct. 1992) (same); but cf. Linkous v. Candler, 508 S.E.2d 657, 658-59 (Ga. 1998) (declining to accelerate a remainder via a statutory disclaimer where the effect was to resolve contingencies, on the ground that to do so would violate the testator’s implicit intent); Wetherbee v. First State Bank & Trust Co., 466 S.E.2d 835, 836-37 (Ga. 1996) (same); Stewart v. Johnson, 362 S.E.2d 849, 850-51 (N.C. Ct. App. 1987) (same); In re Estate of Vainio, 583 N.Y.S.2d 896, 898-900 (Sur. Ct. 1992) (citing also the need to “protect the interests of people who could be damaged by a renunciation over which they had no control,” an apparent reference to manipulation), modified, 595 N.Y.S.2d 567, 56869 (App. Div. 1993) (finding on appeal that acceleration and immediate resolution of the contingency under the facts of the case “accurately reflects decedent’s intent”). 303. Under such a rule, a disclaimed life estate could either be returned to the benefactor’s estate, or sequestered for the benefit of the remaindermen awaiting resolution of the contingency, or distributed immediately to remaindermen with vested interests pending potential divestment by occurrence of the contingency. See, e.g., Blacque v. Kalman, 30 N.W.2d 599, 606 (Minn. 1948).

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Of course, this same difficulty existed under the prior Uniform Acts that UDPIA’s drafters decided to parrot. Those prior Acts had come under criticism, however.304 The drafters either chose to ignore the criticism or were oblivious to the issue. The comment accompanying this provision of UDPIA has not a word to say about the underlying public policies, and it offers no justification whatsoever for the decision to leave bad enough alone.305 2. Succeeding Interests Now put the alternative case: “to A for life, remainder to B,” and B disclaims the remainder. How does B’s interest devolve? Under prior Uniform Acts and the common law, the same analysis applied: B’s interest went to whomever would have received it if B had predeceased the benefactor. Hence, B’s interest went either to the benefactor’s residuary legatees or heirs by virtue of lapse, or to B’s descendants (if any) assuming they were entitled to take under the local antilapse statute.306 UDPIA, however, dictates a different result: “the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution,” in this case at the life tenant’s death.307 Now, who takes in that event under local law? In the vast majority of states where the common law of future interests remains in 304. Patricia J. Roberts, The Acceleration of Remainders: Manipulating the Identity of the Remaindermen, 42 S.C. L. REV. 295, 298-99, 295-311, 318-22 (1991). But compare Professor Ellsworth, who defended the rule found in prior Uniform Acts (and now UDPIA) as consistent with the rule of convenience. “To do otherwise would create endless waiting, complexity and confusion.” Ellsworth, supra note 68, at 729-30. No more waiting is required, however, than if the life tenant had not disclaimed. What is more, the rule of convenience typically has the convenient effect of allowing immediate distribution of a class gift to the existing members of a class that would not, in practice, further grow in membership because the preceding life estate typically terminates only after the passage of some time. What the rule of convenience usefully serves to do is to counteract the absolute presumption of fertility that would otherwise needlessly delay closing the class! See the illuminating discussion in Edward C. Halbach, Jr., Issues About Issue: Some Recurrent Class Gift Problems, 48 MO. L. REV. 333, 358-61 (1983); cf. RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANFERS ch. 26, introductory note, at 131-32 (1988). Here, however, the disclaimer will cause a premature resolution of contingencies and is subject to manipulation that could not otherwise occur under the rule of convenience. 305. “It is immaterial under the statute that the actual situation at the [life tenant’s] death might be different with different [persons] entitled to the remainder” than if the life tenant disclaims. UDPIA, supra note 2, § 6 cmt., ex. 5(a). Why should it be immaterial? one aches to reply to the lifeless comment. Ultimately, the issue of acceleration can only be resolved definitively by recourse to empirical evidence of testamentary intent, which, as usual, is absent from the commentary of UDPIA. 306. UNIF. PROBATE CODE § 2-801(d)(1) (amended 1997); cf. UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 4(a), 8A U.L.A. 149, 155 (1978); UNIF. DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT § 3 & cmt., 8A U.L.A. 161, 172 (1978). For a common law case, see Dare v. New Brunswick Trust Co., 194 A. 61, 63 (N.J. Ch. 1937). Whether the antilapse statute would apply to a disclaimer under the common law is unclear. See supra note 288. 307. UDPIA, supra note 2, § 6(b)(3)(A). On the purpose of this change, see infra note 313.

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force, the answer is crystal clear. The remainder in this case is vested, not contingent on surviving the life tenant, and accordingly it is transmissible so long as B survived the benefactor, as UDPIA would have us presume. If B were to survive the benefactor but predecease the life tenant, B’s remainder would go either to any devisee to whom B specifically bequeathed it, or to B’s residuary legatee in the absence of a specific bequest, or to B’s heirs in the absence of a will.308 Remarkably, we cannot escape the conclusion that if B instead disclaims the remainder under UDPIA and subsequently survives A, B’s remainder goes in the absence of a will to whomever comprise B’s heirs-apparent at A’s death, but if B has executed a will, the remainder goes instead to whomever would be entitled to claim it under B’s will—the “devisee-apparent,” so to say.309 By executing a will the remainderman can functionally assign the disclaimed interest, yet it still comprises a disclaimer under UDPIA.310

308. E.g., Goldenberg v. Golden, 769 So. 2d 1144, 1145-46 (Fla. Dist. Ct. App. 2000); In re Estate of Zucker, 761 A.2d 148, 151-53 (Pa. 2000); see also SIMES & SMITH, supra note 291, § 585; Jesse Dukeminier, The Uniform Probate Code Upends the Law of Remainders, 94 MICH. L. REV. 148, 148 (1995). Under the Uniform Probate Code, on the other hand, a remainder is construed to be contingent on surviving the life tenant. UNIF. PROBATE CODE § 707(b) (amended 1997). But this provision of the Code has been sparsely adopted and will have an impact on the application of UDPIA only in a handful of states. 309. Similarly, if B disclaims and subsequently predeceases A, the remainder goes either to the devisee named under B’s will or, in the absence of a will, to B’s heirs determined as of A’s death (not as of B’s death). See UDPIA, supra note 2, § 6(b)(3)(A) & cmt., ex. 4(a). On the operation of UDPIA in those few jurisdictions that have adopted the Uniform Probate Code provision construing all remainders to be contingent on surviving the life tenant, see id. 310. This same result obtains in connection with the disclaimer of certain types of will substitutes under UDPIA. In most states, a revocable inter vivos “living trust” is technically treated as a life estate in the settlor followed by a vested remainder (subject to divestment by revocation) in the beneficiary; if the beneficiary predeceases the settlor/life tenant—or, by analogy, disclaims and thereby constructively predeceases the settlor/life tenant—the interest does not lapse, but rather is transmissible by the beneficiary. E.g., In re Estate of Capocy, 430 N.E.2d 1131, 1134 (Ill. App. Ct. 1981); Hinds v. McNair, 413 N.E.2d 586, 596-99 (Ind. Ct. App. 1980). Hence, in such a state under UDPIA, a disclaimed interest in a living trust goes to the disclaimant’s heirs-apparent or devisees-apparent. But cf. infra note 314 and accompanying text. On the other hand, in most states Totten trusts and revocable life insurance trusts include an implicit survival requirement and so are not transmissible if the beneficiary predeceases the settlor or the insured. E.g., Estate of Capocy, 430 N.E.2d at 1133 (dicta); GEORGE J. COUCH, ENCYCLOPEDIA OF INSURANCE LAW § 27:132, at 815-16 (Mark S. Rhodes ed., rev. 2d ed., 1984 & Supp. 1996); Hirsch, Legal Contraptions, supra note 10, at 546 n.67. Hence, in such a state under UDPIA, a disclaimed interest in a Totten trust or life insurance trust devolves to the settlor’s or insured’s residuary legatee or heirs. By comparison, under prior Uniform Acts, disclaimed interests under all will substitutes lapse (although under the Uniform Probate Code, the descendants of the disclaimant can take under its unusual antilapse provisions for future interests and will substitutes). UNIF. DISCLAIMER OF PROP. INTERESTS ACT § 4(b), 8A U.L.A. 149, 156 (1978); UNIF. DISCLAIMER OF TRANSFERS UNDER NONTESTAMENTARY INSTRUMENTS ACT § 3, 8A U.L.A. 179, 185 (1978); cf. UNIF. PROBATE CODE §§ 2-706, 2-707, 2801(d)(2) (amended 1997); see also Edward C. Halbach, Jr., & Lawrence W. Waggoner, The UPC’s New Survivorship and Antilapse Provisions, 55 ALB. L. REV. 1091, 1125-26, 1139-40 (1992); McCouch, supra note 51, at 1168-71; Medlin, supra note 3, at 1268-69.

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As a matter of theory, that is a reasonable—if unprecedented— outcome, as I argued earlier.311 Unfortunately, however, it is not an outcome compatible with tax-qualifying a disclaimer under the Internal Revenue Code.312 Nor is it an outcome that the drafters of UDPIA anticipate.313 As the accompanying comment indicates, the drafters assume that the disclaimed remainder “should pass to [the remainderman’s] heirs determined as of [the life tenant’s] death”— that is, (only?) to the heirs-apparent.314 On what analytical basis do the drafters draw that conclusion? The comment fails to elaborate on the point. So, we are confronted with a contradiction between the text and the comment. How should a court resolve that contradiction? On the one hand, many courts have looked to the comments appended to Uniform Acts to resolve textual ambiguities.315 Nevertheless, as a technical matter, an adopting state enacts only the text, not the

311. See supra note 272 and accompanying text. Certainly, it would be unprecedented to allow an insolvent beneficiary to assign an inheritance, because the assignment would constitute a transfer under fraudulent conveyance law in every jurisdiction. Hirsch, supra note 9, at 607. Yet, any disclaimer made under UDPIA—even one that is functionally assignable—is by definition “not a transfer, assignment, or release,” UDPIA, supra note 2, § 5(f), and so will be avoidable only if local law otherwise forbids insolvent disclaimer. See supra Part V.A. 312. At least not if the remainderman produces a will that would dispose of the remainder. See supra note 289 and accompanying text. But even if the disclaimant does not do so, it remains possible that the tax Commissioner will challenge all disclaimers of remainders on the theory that the disclaimant directs the devolution of the remainder by not executing a will! Once the formal distinction between a disclaimer and an assignment blurs within state law, and a disclaimer becomes functionally assignable, the substantive distinction between an act of control and an omission of control within the parameters of a disclaimer becomes ever more elusive. 313. By dialing forward the time of the disclaimant’s constructive death from the death of the benefactor to the death of the life tenant, the drafters of UDPIA had an entirely different concern in mind. The drafters sought to ensure that the disclaimer of a contingent remainder would devolve according to circumstances as they existed at the death of the life tenant, rather than circumstances as they had existed at the benefactor’s death. See UDPIA, supra note 2, § 6 cmt., ex. 3; see also Lawrence Newman & Albert Kalter, Disclaimers of Future Interests: Continuing Problems and Suggested Solutions, 49 NOTRE DAME LAW. 827, 842 (1974) (observing that issue). The drafters simply failed to pay adequate regard to the ramifications of the provision in connection with vested remainders. But, in addition to that oversight, doesn’t the policy concern expressed by the drafters at this juncture conflict with their approach to the acceleration of remainders? Cf. supra note 293 and accompanying text. Compare UDPIA, supra note 2, § 6 cmt., ex. 3, with id. § 6 cmt., ex. 5(a). 314. See UDPIA, supra note 2, § 6 cmt., ex. 4(a) (hypothesizing a revocable trust, which technically creates a future interest in the beneficiary). 315. Courts on a number of occasions have explored the comments accompanying Uniform Acts to assist in construing the local law of disclaimers. Mapes v. United States, 15 F.3d 138, 141 (9th Cir. 1994); Estate of Bryant, 196 Cal. Rptr. 856, 861 (Ct. App. 1983); Brown v. Momar, Inc., 411 S.E.2d 718, 721 (Ga. Ct. App. 1991); In re Estate of Opatz, 554 N.W.2d 813, 81516 (N.D. 1996); In re Estate of Fleenor, 17 P.3d 520, 524 (Or. Ct. App. 2000); In re Estate of Balson, 515 N.W.2d 474, 477-78 (Wis. Ct. App. 1994).

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comments,316 and at any rate orthodox rules of construction forbid a court to disturb plain text that admits of another interpretation only in light of the comment.317 Although a comment may tell us what the drafters meant to say, it cannot change what they did say. The language at issue here had already gone through manifold changes in the various drafts of UDPIA, and it was still undergoing amendment at the eleventh hour.318 Even if the Commissioners had drafted this provision more carefully to conform with the comment, we face a further problem. Once more, the statutory rule under UDPIA differs from the common law rule received into the Act by its safe-harbor provision319—thus again giving the disclaimant a choice of outcomes, either by disclaiming under the Act or at common law, and thereby again raising the specter that, whichever choice the remainderman makes, her disclaimer will be denied tax-qualification by a different commissioner.320 CONCLUSION: BEYOND UDPIA UDPIA may yet come to merit enactment as a product “vastly better than most existing disclaimer legislation,” as one of its promoters proclaims,321 but not before it has undergone repairs. Most fundamentally, the Act’s over-reception of common law threatens to sink the entire legal vessel; unless the relevant provisions are amended, we cannot even rescue the small goods.322 But UDPIA is riddled with other glitches, ambiguities, and misjudgments too numerous to recapitulate, all of which require attention before the Act can safely be passed into law by state legislatures. Although the thrust of our analysis has been technical criticism, designed to assist legislators and Commissioners in patching up 316. Miller v. Preitz, 221 A.2d 320, 325 (Pa. 1966) (making the point to justify judicial disregard of a comment); Julian B. McDonnell, Purposive Interpretation of the Uniform Commercial Code: Some Implications for Jurisprudence, 126 U. PA. L. REV. 795, 806 n.52 (1978). 317. “[I]f the statutory provisions adopted by the legislature contradict or fail to support the Comments, the Comments must be rejected.” Robert H. Skilton, Some Comments on the Comments to the Uniform Commercial Code, 1966 WIS. L. REV. 597, 604, 614, 628 (quoting Professor Honnald). E.g., Burk v. Emmick, 637 F.2d 1172, 1175 n.5 (8th Cir. 1980) (holding that a comment cannot “impose restrictions unwarranted by the statutory language”); see also U.C.C. § 1-102(3)(f) (1952) (amended 1957) (“The Comments . . . may be consulted in the construction and application of this Act but if text and comment conflict, text controls.”). 318. Compare the last two drafts preceding the final draft. UNIF. DISCLAIMER OF PROP. INTERESTS ACT §§ 3-4 (Discussion Draft 1999); UNIF. DISCLAIMER OF PROP. INTERESTS ACT §§ 3-4 (Discussion Draft 1998). 319. UDPIA, supra note 2, § 4(b); see supra note 22-25 and accompanying text. The same difficulty may arise in connection with UDPIA’s rule governing the devolution of a disclaimed life estate or other preceding interest. See supra note 291. 320. See supra note 289. 321. Wellman, supra note 263, at 7. 322. See supra notes 20-32, 96-104, 114-15, 128 item #2, 196-97, 260-61, 287-90, 296, 31920 and accompanying text.

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UDPIA, an observer always has more to learn by adjusting his field of vision. Accordingly, before closing the book on this Act, let us step back from the trees and have at least a moment’s regard of the forest. Are there any larger lessons to glean from the story of UDPIA? Surely, the principal disclosure has been a point I postulated at the start: to wit, the simple capacity of drafters of Uniform Acts to err. The observation would seem a truism, hardly worth mentioning, were it not for the claims made by Commissioners who market their products. Uniform Acts, we are assured, benefit from “multiple levels of expertise,” bestowed through “a deliberative process that is measured and lengthy” and that ultimately attains a “depth of review” that the “the state enacting process seldom achieves” by way of comparison.323 The hard fact remains that, whatever their gifts and exertions, Commissioners are busy persons who must budget their time and meet deadlines—just like other lawmakers. Although some provisions of Uniform Acts are the fruits of extended, expert effort, others—especially peripheral provisions—may receive cursory attention. Amendments are added at the last minute, sometimes with insufficient forethought, just as can happen in the legislative process.324 UDPIA suffers from its share of flaws and slapdash revisions, as we have seen—and UDPIA is hardly unique among Uniform Acts in this respect. But Commissioners could never have been expected to lavish equally painstaking attention on every last detail of their projects. That at least one late-crafted (and ill-crafted) provision of the Uniform Probate Code includes language copied out of a draft proffered to the Commissioners by a layperson is indication enough that their drafting protocols can go awry.325 It is therefore incumbent upon state legislators to take stock of UDPIA, and of any other proposed Uniform Act, as I have endeavored to do here—which is to say, critically. That is not the path of least resistance, however. Lawmakers—like decision makers generally—have a natural proclivity to free-ride on the intellectual travails

323. John H. Langbein & Lawrence W. Waggoner, Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code, 55 ALB. L. REV. 871, 877-79 (1992). 324. Even the Commissioners’ plenary debates suffer from deadline pressures. Plenary discussion of the revised Uniform Probate Code was called to an abrupt halt: “We have got about five more minutes before we are going to quit. A lot of people come to this parade, it’s a big parade, so we don’t want to be late.” PROCEEDINGS OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM PROBATE CODE ARTICLE II, PROCEEDINGS OF THE COMMITTEE OF THE WHOLE 132 (Fifth Session, July 15, 1999) [hereinafter Plenary Reading, Uniform Probate Code]. 325. Hirsch, Trusts for Purposes, supra note 10, at 952. For an extended critical review of the section in question, which is concerned with the problem of trusts for noncharitable purposes, and which fairly bristles with troublesome glitches, see id. passim.

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of others.326 The easiest course for state legislators is always to enact a Uniform Act as it stands, on the assumption that its drafters have performed the heavy lifting for them.327 Most unfortunately, Commissioners of late have done their utmost to nourish that assumption. “I hope that . . . we can train the legislatures to realize that they do not have the time or the competence to interfere with ‘lawyers’ law,’ and they should be willing to accept almost automatically . . . original statutes . . . put forth by highly qualified select drafting groups,” one of them has lectured.328 With only a trifle less bravado, the drafters of the revised Uniform Probate Code cautioned their legislative audience that it “would be wise to indulge in a moderate presumption” of their product’s superiority,329 and they were quick to dismiss local tinkering with a gibe: [I]t is quite likely that someone’s bright idea is not as bright as it seems—that there are reasons why the uniform law draft did not go down the different path that occurs to someone who examines the final product afresh. Our experience is that most variations that are introduced into uniform laws at the local level are proposals that were considered and rejected for good cause in the uniform law drafting process.330

Such rhetoric could succeed in awing legislators who contemplate UDPIA into a dangerous, thoughtless conformity, precisely when they need to be tugged in the direction of active scrutiny.331 In fairness, the position taken by the last-quoted Commissioners included a second component, rendering their overall posture more modest. They were prepared to concede that their product might suffer from imperfections,332 but they preferred that local critics funnel proposed corrections to and through the Uniform Law Commission, which could then revise the prototypical Code itself: “In asking that local variations be resisted, we are speaking to a process value. We 326. The phenomenon is known within cognitive psychology as an information cascade. For a recent discussion (citing to earlier studies), see Steffen Huck & Jörg Oechssler, Information Cascades in the Laboratory: Do They Occur for the Right Reasons?, 21 J. ECON. PSYCH. 661 (2000). 327. I am not the first to notice this tendency. Kathleen Patchel, Interest Group Politics, Federalism, and the Uniform Laws Process: Some Lessons from the Uniform Commercial Code, 78 MINN. L. REV. 83, 139-41 (1993). 328. Homer Kripke, Reflections of a Drafter, 43 OHIO ST. L.J. 577, 584 (1982). 329. Langbein & Waggoner, supra note 323, at 879. 330. Id. at 878. 331. Legislators are already falling into this trap: In the four jurisdictions that have thus far enacted UDPIA, the Act was adopted essentially verbatim. See supra note 4; see also supra note 246. 332. “We do not mean to say that proposed uniform laws are always perfect. There is indeed the possibility that despite all the safeguards and all the deliberations, a uniform act overlooks some manifestly superior alternative,” although “the possibility that some fundamental flaw infects a uniform act is in any particular case not very likely.” Langbein & Waggoner, supra note 323, at 878-79.

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believe that the careful, open deliberative process of the uniform law revision cycle is a better way to deal with . . . perceived defects . . . than is local variation.”333 Modern cognitive theory argues for the opposite process value, however: Perversely, the original drafters have a psychological stake in their work product that can cause them to lose objectivity; evidence suggests that when persons are placed in charge of correcting themselves, they tend to dig in their heels, irrationally resisting a reversal of prior decisions.334 The Uniform Probate Code’s recent history may well reflect this cognitive tropism.335 Rightly or wrongly, the drafters of the revised Code have stoutly defended, rather than amended, their product in the face of criticism.336 Whether the same fate awaits UDPIA remains to be seen. The Commissioners’ case would be stronger, of course, if the aspiration of uniformity stood at the forefront of their efforts. But legal uniformity is not today a vital concern. That is particularly true in an area like inheritance law—including disclaimer law—where the intrinsic merits of interjurisdictional consistency are relatively scant.337 And even were those merits more considerable, the Commissioners’ uniformity ideal has long since proven a chimera; with the notable exception of commercial law, nothing approaching universal adoption has ever been achieved.338 Surely, uniformity can no longer stand as a sacred altar on which to sacrifice doctrinal quality. Indeed, observers have detected a gradual shift in emphasis among the Commissioners away from the uniformity ideal and toward the more pragmatic ob-

333. Id. at 879. 334. This phenomenon is known theoretically as “escalation of commitment,” an aspect of the sunk-cost fallacy. “People want to believe that they are good decision makers, so they persist in believing that an initial decision was a good one, even when it appears not to be.” JONATHAN BARON, THINKING AND DECIDING 468-70 (3d ed. 2000) (citing to studies). 335. The drafters themselves confessed their psychological commitment: “Because we were so deeply involved in the drafting and deliberative process that led to the new UPC [Uniform Probate Code] . . . we are not the best candidates to pass judgment on our own handiwork.” Langbein & Waggoner, supra note 323, at 890. 336. When judgments on individual provisions of the Code were negative, reaction was swift. E.g., Dukeminier, supra note 308. This article elicited a rebuttal. Lawrence W. Waggoner, The Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts, 94 MICH. L. REV. 2309 (1996). Although the revised Uniform Probate Code has undergone a number of technical amendments since it was first promulgated in 1990, I am unable to identify a single revision prompted by legislative variations or academic criticism. Nonetheless, the drafters promised that “scholars and practitioners will find a warm welcome when they bring needed repairs to the attention of the [Commissioners].” Langbein & Waggoner, supra note 323, at 890. 337. Hirsch, Trusts for Purposes, supra note 10, at 955-57. But compare the drafters of the revised Uniform Probate Code, who aver with a straight face that the need for uniformity in the area of inheritance law is comparable to the need for uniformity within commercial law. Langbein & Waggoner, supra note 323, at 878. 338. Alan Schwartz & Robert E. Scott, The Political Economy of Private Legislation, 143 U. PA. L. REV. 595, 602 (1995).

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ject of law reform339—a realm of pursuit within which legislators have no reason to defer to anybody, or any body. Today’s Commissioners pressing for legislative deference could learn a thing or two from their predecessors, whose approach to model lawmaking was rather more relaxed and open-minded. The Reporter for the original Uniform Probate Code encouraged state legislatures to introduce local variations, and the Code eventually incorporated some of them.340 Similarly, the Uniform Commercial Code gained widespread enactment only after a state law revision commission prompted its overhaul.341 The Commissioners need all the “bright ideas” they can get, and state legislators had better take the lead in implementing them.342 UDPIA too will profit by these initiatives, assuming legislators are emboldened to try and Commissioners thereafter are prepared to listen. At any rate, the myth of Uniform Law superiority must be dispelled once and for all. Considered as a whole, UPDIA also highlights a number of systemic flaws in the Uniform Law drafting process that demand attention.343 Like other areas of inheritance law, disclaimer law is primarily composed of default rules of construction.344 If those default rules are truly to reflect the will of the typical benefactor, they have to be established on the basis of empirical investigation.345 Unfortunately, the Uniform Law Commission has failed thus far to provide resources to its drafting committees to conduct such investigations. That is a signal deficiency which seriously impairs the quality of its products—and palpably so in the case of UDPIA.346

339. E.g., William E. Hogan, The NCCUSL: With a Name Like That It Must Be Useful, CORNELL L.F., June 1979, at 2, 4. 340. UNIF. PROBATE CODE, at ix (amended 1997) (commentary on 1975 Technical Amendments); Lawrence H. Averill, Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. REV. 891, 898 (1992); Richard V. Wellman, A Reaction to the Chicago Commentary, 1970 U. ILL. L.F. 536, 542. 341. Larry T. Garvin, The Changed (and Changing?) Uniform Commercial Code, 26 FLA. ST. U. L. REV. 285, 357 (1999). On a number of occasions “state law revision commissions have figured prominently in reshaping uniform statutes.” Id. 342. For an instance in which the state legislature of Colorado made distinct improvements on a section of the revised Uniform Probate Code (which was never amended in response), see Hirsch, Trusts for Purposes, supra note 10, at 924 n.59, 927 n.69, 950 n.165. 343. For some additional recent observations along these lines by a perspicacious observer, see Garvin, supra note 341, at 351-58. For some prior related reflections of mine, see Hirsch, Trusts for Purposes, supra note 10, at 951-57. 344. For an observation of the predominance of default rules within inheritance law generally, see Halbach, supra note 7, at 1921. 345. On the theoretical significance of empirical evidence in connection with the setting of default rules, see supra note 183 and accompanying text. 346. See supra notes 185, 275, 292, 305 and accompanying text. I am not the first to call for empirical investigation within the process of drafting Uniform Acts. Averill, supra note 340, at 912-18; see also Dukeminier, supra note 308, at 149-50. Nevertheless, seemingly determined to build themselves into a glass house, the drafters of the revised Uniform Probate Code char-

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This difficulty is, however, one that the Reporter for the revised Uniform Probate Code would prefer to downplay. While admitting the want of funding for empirical research, he insists that the drafters were able to make up for it by including among their number “nationally known estate planners of considerable insight and experience . . . [whose] cumulative experience suggests that they have a pretty good idea of what most clients want.”347 If only it were that simple! As any statistician knows, informal polling of this sort is notoriously prone to error—not least, in this instance, from the exposure of highly successful attorneys to clients who form an unrepresentative sample of the population as a whole348—and a number of cognitive biases will also tend to corrupt such an inquiry.349 The melancholy fact is that, deprived of an empirical foundation, the default rules found within the Uniform Probate Code float precariously on a stream of intelligent guesses—buoyed on occasion by specious argumentation.350 The drafters of UDPIA now find themselves in the acterize local deviations from their product as “[a]ll too often . . . the result of less well informed persons acting on scant investigation.” Langbein & Waggoner, supra note 323, at 878-79. 347. Waggoner, supra note 336, at 2337-38. “[R]equiring a systematic empirical study before any reform can be put into place would paralyze the law-reform process.” Id. at 2337. At the same time, the drafters of the Uniform Probate Code made good use of those published empirical studies that, fortuitously, scholars had undertaken independently. See UNIF. PROBATE CODE §§ 2-102 cmt., 2-106 cmt., 2-302 cmt. (amended 1997). 348. See FLOYD J. FOWLER, SURVEY RESEARCH METHODS 12-13 (2d ed. 1993). 349. People tend to recall vivid experiences more easily than the mundane. Accordingly, they often overestimate the frequency of unusual events (say, estate planning clients who harbor atypical preferences) precisely because experience with those events—or clients—spring more easily to mind. This phenomenon is known theoretically as the availability heuristic. For a discussion, see SCOTT PLOUS, THE PSYCHOLOGY OF JUDGMENT AND DECISION MAKING 121-30 (1993). For the classic study, see Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 163 (Daniel Kahneman et al. eds., 1982). People also tend to extrapolate on the basis of limited experience. Thus, an estate planner who has encountered only a few clients having to deal with an unusual issue will tend to assume that their resolution of that issue is representative of clients generally, whereas a statistician would have less confidence in that conclusion and would insist on taking a larger sample. This phenomenon has been dubbed (playfully) the law of small numbers; it derives from the representativeness heuristic. PLOUS, supra, at 112113. For the seminal discussion, see Amos Tversky & Daniel Kahneman, Belief in the Law of Small Numbers, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES, supra, at 23. Finally, persons tend to ascribe to others their own attitudes—they “see their own behavioral choices and judgments as relatively common and appropriate . . . while viewing alternative responses as uncommon, deviant, and inappropriate,” a phenomenon known as the false consensus bias or egocentric attribution bias. Lee Ross & Craig A. Anderson, Shortcomings in the Attribution Process: On the Origins and Maintenance of Erroneous Social Assessments, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES, supra, at 129, 140. For a recent discussion, see Raymond S. Nickerson, How We Know—and Sometimes Misjudge—What Others Know: Imputing One’s Own Knowledge to Others, 125 PSYCHOL. BULL. 737 (1999). 350. See UNIF. PROBATE CODE § 2-509 cmt. (justifying a default rule on the ground that the testator “knows (or should know)” what the default rule is!). For a further discussion, see Hirsch, Inheritance and Inconsistency, supra note 10, at 1097 n.117. Other default rules are justified simply by unsubstantiated findings. E.g., UNIF. PROBATE CODE § 2-109 cmt. (“Most inter-vivos transfers today are intended to be absolute gifts or are carefully integrated into a total estate plan.”).

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same boat—through no fault of their own, to be sure. The problem stems from budget constraints, which need urgently to be addressed.351 No less troubling is the Commissioners’ penchant for ipse dixit commentary. Too many of the comments that accompany UDPIA fail to explicate policy rationales for the provisions they elaborate—a failure also evident in other Uniform Acts.352 Of course, apart from the occasional terse preamble, statutory laws rarely stipulate their justifications; they are pure exercises in authority. But Uniform Acts are mere statutory proposals, and as such they call for philosophical (along with interpretive) commentary.353 The most obvious reason for giving reasons is that they provide state legislators with something tangible to think about. Legislators can then decide whether they agree with the Commissioners’ philosophy and, if so, whether they are satisfied that it is best accomplished by the rule the Commissioners have put forward as its embodiment.354 If, as we observed the drafters of the revised Uniform Probate Code to assert, there probably were “reasons why the uniform law . . . did not go down the different path that occurs to” an imaginative state legislator,355 ought the Commissioners not disclose what those reasons were? Well, legislators who would raise such questions can “contact the relevant Uniform Law Commission personnel to learn the reasons why a drafting committee took the path that was ultimately chosen.”356 Surely the comments can provide the information needed to assess the merits of Uniform Acts with far greater efficiency. More subtly, giving reasons would serve to benefit the Commissioners themselves. Uniform lawmaking is an ongoing process, and subsequent Commissioners will need to weigh whether UDPIA has grown philosophically anachronistic to the point that it requires revision. Perhaps more significantly, insisting that Commissioners give 351. Were funding made available, it might also yield a fringe benefit: Had they been armed with empirical evidence, the drafters of UDPIA would have stood in a stronger position to overcome the innate conservatism of the National Conference of Commissioners when the drafters sought to implement radical reforms. See supra notes 275-76, 280-82 and accompanying text. The same would be true of future drafting committees. 352. See supra notes 125, 143, 185, 189, 305 and accompanying text. For an observation of the unevenness of the comments accompanying the Uniform Probate Code, see Averill, supra note 340, at 908-10. 353. For a discerning jurisprudential discussion, see Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633 (1995). 354. Down the road, a statement of the rationales underlying Uniform Acts that legislators choose to enact will also assist courts when they are called upon to interpret a Uniform Act’s meaning. 355. Langbein & Waggoner, supra note 323, at 878. See supra text accompanying note 330. 356. Id. at 879.

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reasons would instill in them a salutary discipline. Put simply, the more Commissioners have to say about what they think, the more they have to think about what they say. Like other cognitive chores, crafting rules is hard work, and lawmakers (like other mortals) are forever on the lookout for heuristic processes to simplify mental tasks. Reflexive resort to precedent is one example.357 Resort to intuition or whim, if tolerated, would be another. Alas, Commissioners are perfectly human in this respect. One can point to concrete examples of arbitrary rules found within Uniform Acts.358 Whether UDPIA includes rules that were arrived at without rationalization cannot be determined from the extant record359—although they are the ineluctable byproduct of a drafting protocol that fails, as of yet, to insist on comprehensive policy substantiation in the accompanying comments.360 Along with becoming less cryptic, the Commissioners’ commentary also needs to be more candid, a difficulty again apparent in connection with UDPIA. Obviously, the whole point of law reform is to propose innovations.361 Yet legislators typically hesitate to subject their law to rapid change.362 Commissioners can breast that tide by pointing out the inadequacies of existing rules and the virtues of their proposed alternatives. In some instances, however, whether consciously or unconsciously, Commissioners seemingly prefer to encourage adoption of novel provisions by de-emphasizing their originality. UDPIA’s commentary accompanying its radical revision of fiduciary disclaimer law, in particular, arouses criticism in this re-

357. See Hirsch, Inheritance and Inconsistency, supra note 10, at 1161 n.303 (citing to discussions). 358. The Reporter for the revised Uniform Probate Code, Professor Lawrence Waggoner, admitted in the plenary debate over the section covering trusts for noncharitable purposes that the provision included an arbitrary durational limitation: “We used 21 years for no particular reason, frankly.” Plenary Reading, Uniform Probate Code, supra note 324, at 133-34. Needless to add, no such admission appears in the published comment, which fails to rationalize its durational limitation (although it was ultimately bracketed to indicate its tentativeness). See UNIF. PROBATE CODE § 2-907 & cmt. (amended 1997). 359. The provisions establishing the default rule for a power of fiduciary disclaimer and the rule for accelerating future interests are two plausible candidates. See supra notes 185, 304-05 and accompanying text. 360. The Uniform Law Commission Style Manual insists that drafters omit purpose clauses from the text of Uniform Acts, but it adds that in “[a] well drafted Act, . . . [c]omments and annotations supply this detail to aid in its passage and interpretation.” NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, PROCEDURAL AND DRAFTING MANUAL at 26 (1997) (rule 22 & cmt.) (unpublished document on file with author). 361. See supra note 284 and accompanying text. 362. Legal change implicates costs by virtue of the expenditures already made in reliance on the continuation of preexisting rules. These costs can create what is theoretically referred to as “path dependence.” For discussions in connection with inheritance law, citing in turn to broader theoretical treatments, see Hirsch, Legal Contraptions, supra note 10, at 532-33; Hirsch, Inheritance and Inconsistency, supra note 10, at 1157-58 (also noting political constraints on rapid change).

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gard.363 Legislators cannot rely on the commentary to identify all of UDPIA’s novelties, although that information is certainly pertinent when they ponder the Act’s enactment or amendment. But, once again, UDPIA’s drafters are following an unfortunate example set by other recent Commissioners.364 Here as well, today’s Commissioners might draw inspiration from their more distant forbears. For Grant Gilmore and the other authors of Article Nine of the Uniform Commercial Code, revolution was the object. And revolution was right: Article Nine comprised nothing less than a breathtaking exercise in legal simplification. Far from trying to soften that fact, the drafters reveled in it—and Article Nine’s reception before state legislatures ultimately proved no worse for the Commissioners’ boldness in the matter.365 Let the Commissioners make their case for change, and then let the chips fall where they may. Finally, in the same vein—and, in UDPIA’s case, on a forward looking note—Commissioners need to acknowledge more forthrightly the controversies stirred up by their proposals. Although the Uniform Probate Code’s commentary (for example) includes frequent “Reference” or “Law Review and Journal Commentaries” citations attached to individual sections, these prove on examination to be selective. Sharply critical articles, even those focused exclusively on correcting perceived flaws in the Code, are nowhere to be found in its reference materials.366 If, as its drafters predicted, “[t]ime will reveal that the 363. See supra notes 126-27 and accompanying text. On the other hand, UDPIA’s commentary does highlight its abandonment of a time limit on disclaiming as a break with the past. UDPIA, supra note 2, prefatory note. 364. For instance, arguably the most radical—and most welcome—provision of the revised Uniform Probate Code is its dispensing power, abandoning the law’s longstanding, intentdefeating insistence on strict compliance with the formalities of will execution. UNIF. PROBATE CODE § 2-503 (amended 1997). The accompanying comment fails to illuminate, or even to acknowledge, the dispensing power’s unconventionality. See id. § 2-503 cmt. Instead, the comment emphasizes legislative precedents for the power, discovered in Manitoba, South Australia, and Israel. Id.; see also, e.g., id. § 2-907 & cmt. (rendering honorary trusts functionally enforceable, an innovation that goes unremarked in the comment). 365. “The aim of this Article is to provide a simple and unified structure within which the immense variety of present-day secured financing transactions can go forward,” thereby accomplishing “a radical simplification” of the law. U.C.C. § 9-101 cmt. (1972) (amended 2000). 366. See Mark L. Ascher, The 1990 Uniform Probate Code: Older and Better, or More Like the Internal Revenue Code?, 77 MINN. L. REV. 639 (1993); David M. Becker, Uniform Probate Code Section 2-707 and the Experienced Estate Planner: Unexpected Disasters and How to Avoid Them, 47 UCLA L. REV. 339 (1999); Dukeminier, supra note 308; Hirsch, Trusts for Purposes, supra note 10; Medlin, supra note 3; Patricia G. Roberts, Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate Code’s Intestacy and Class Gift Provisions, 32 REAL PROP. PROB. & TR. J. 539 (1998); Jeffrey A. Schoenblum, Multijurisdictional Estates and Article II of the Uniform Probate Code, 55 ALB. L. REV. 1291 (1992). None of these critical essays are cited in the commentary accompanying the Code sections to which they are directed. These omissions cannot be inadvertent. An entire issue of the Albany Law Review was devoted to a symposium on the revised Code, and whereas favorable articles within that symposium appear in the Code’s commentary, unfavorable ones do not. See 55 ALB. L. REV. 871, 871-1414

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1990 [Uniform Probate Code] had its share of oversights and mistakes,”367 one might also have expected subsequent editions of the Code to reveal them. But legislators who would consult critical assessments of the Code must take pains to conduct a wider search. This reluctance to call attention to dissent is in some sense understandable. Nothing succeeds like the appearance of success, and some Commissioners may prefer to turn a blind eye to criticism, lest naysayers plant doubts in the minds of legislators and thereby threaten local enactment of their products. But, once again, legislators need to know which Uniform Acts or provisions within Uniform Acts require a harder look. Ultimately, this modus operandi can only undermine the Commissioners’ credibility.368 One can only hope that the Commissioners who exercise continuing responsibility over UDPIA will have the wisdom to break with this tradition. In a word, Commissioners need to treat the law reform process as something wholly distinct from a public relations operation.369 Independent review is an indispensable aspect of the process.370 In this constructive spirit, I have put forward the criticisms and suggestions contained in the foregoing pages. It is fervently to be wished that those criticisms, when filtered into the nacre of UDPIA, will stimulate its able drafters to produce pearls—not merely irritation.

(1992). A more recent critical article drew sufficient attention as to elicit a published response from the Reporter, and both were omitted from the commentary accompanying the Code! Waggoner, supra note 336 (answering Dukeminier, supra note 308). 367. Langbein & Waggoner, supra note 323, at 879. 368. It could also be taken to signify an aversion to criticism that is unhealthy, to say the least, in a model lawmaking body. 369. But cf. Averill, supra note 340, at 901-06 (“Whether the 1990 [Uniform Probate Code] will have a greater or lesser influence on state legislation . . . depends largely upon the quality and scope of its promotion program. . . . [L]egislative adoption is the name of the game for uniform laws.”). 370. The observation remains as apt today as it was a century ago. See Ames, supra note 10, at 257.

THE NEW DEAL ORIGINS OF AMERICAN LEGAL PLURALISM DALIA TSUK* I. INTRODUCTION ..................................................................................................... II. SETTING ............................................................................................................... A. Pluralism ...................................................................................................... B. Federal Indian Policy on the Eve of the New Deal...................................... III. “MAKING ‘REDS’ OF THE INDIANS”: SOCIALIST PLURALISM AND THE INDIAN REORGANIZATION ACT, 1934 ............................................................................... A. Critique and Utopia...................................................................................... B. Dreams and Subtexts.................................................................................... C. Realism and Transformation....................................................................... D. The Importance of Culture: The IRA in Retrospect..................................... IV. “THE INTELLECTUAL EQUIPMENT OF A GENERATION”: SYSTEMATIC PLURALISM AND THE HANDBOOK OF FEDERAL INDIAN LAW ............................... A. Systematic Pluralism ................................................................................... B. Integration and Discord ............................................................................... C. Systematic Pluralism, Revisited: A Group Right To Be Different.............. V. “EVERYTHING HAS TWO HANDLES”: COMPARATIVE PLURALISM AND THE INDIAN CLAIMS COMMISSION ACT, 1946 ............................................................. A. Indian Claims............................................................................................... B. Comparative Pluralism ................................................................................ C. “How We Bought the United States”: The ICCA in Perspective.................. VI. BEYOND THE INDIAN NEW DEAL .........................................................................

190 199 199 202 207 207 209 219 227 233 233 239 243 250 250 253 257 263

* Copyright © 2001 by Dalia Tsuk, Associate Professor of Law, James E. Rogers College of Law, University of Arizona; Ph.D. Candidate (History), Yale University; S.J.D., 1999, Harvard Law School; M. Phil (History), 1998, Yale University; LL.B., 1992, Tel Aviv University. Many friends and colleagues engaged my musings on pluralism, commented on drafts, and offered encouragement and support throughout the different stages of this project. At the risk of forgetting someone, special thanks are due to Kathy Abrams, JeanChristophe Agnew, Barbara Atwood, Paul Bennett, Jean Braucher, Nancy Cott, Dan Ernst, Martha Fineman, Robert Glennon, Carole Goldberg-Ambrose, Susan Gooding, Bob Gordon, Tom Green, Bernard Harcourt, Dirk Hartog, David Hollinger, Morty Horwitz, Laura Kalman, Kay Kavanagh, Sandy Levinson, Toni Massaro, Serena Mayeri, Martha Minow, Bill Nelson, Shannon O’loughlin, Dick Polenberg, Suzanne Rabé, Avi Soifer, Elizabeth Townsend, and Rob Williams. The Article also benefited from presentations and discussions at the Graduate Program Colloquium at Harvard Law School, the Legal History Colloquium at New York University School of Law, the 1999 annual meeting of the American Society for Legal History, the meeting of the Working Group on Culture, Law, and the Humanities in Washington, D.C., the 2000 annual meeting of the Yale Native American Association at Yale Law School, and a faculty workshop at UCLA School of Law. I also wish to acknowledge the assistance I have received in connection with this project from the archivists at the Franklin D. Roosevelt Library, the Joseph Regenstein Library (University of Chicago), Sterling Memorial Library (Yale University), and the Beinecke Rare Book and Manuscript Library (Yale University). Thanks are also due to Brittany Adams, the Editorin-Chief of volume 28 of the Florida State University Law Review, for her great patience and help. Financial support was provided by the Beinecke Rare Book and Manuscript Library, the Samuel I. Golieb Fellowship in Legal History at New York University School of Law, and the University of Arizona College of Law Summer Research Fund. All errors are of course mine. The editorial board of the Florida State University Law Review did not verify archival sources located at the above mentioned libraries.

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I. INTRODUCTION Political, cultural, and religious groups around the world have sought in recent decades to exercise their rights to selfdetermination. Examples include indigenous peoples in Australia and Canada, Native Americans, ethnic groups in Eastern Europe, the Amish community in Pennsylvania, and the Orthodox Jewish community of Kiryas Joel. Responding to these efforts, legal scholars and policymakers are today attempting to develop legal mechanisms that would accommodate the unique interests of particular groups, while also mediating and settling potential conflicts and tensions between individuals, groups, and peoples. In this Article, I seek to add a historical dimension to these endeavors by examining early twentieth-century theories of pluralism1 that are rich, complex, and highly relevant to these contemporary discussions of group rights, but that thus far have been neglected by political scientists and legal scholars. In contemporary political science and legal scholarship, the term “pluralism” is often associated with process theories of democracy, which scholars like Robert Dahl articulated during the 1950s and 1960s. Rooted in models of equilibrium drawn from economics, process theories sought to create a conception of a neutral political process, free of any substantive commitment to particular values such as the celebration of diversity, in which different groups interact, compete, or trade ends.2 This common association of “pluralism” with process theories is misleading. In the first half of the twentieth century, theories of pluralism often recognized diversity not merely as an empirical fact, something that we must tolerate grudgingly or try to reduce, but as a constitutive element of American democracy. Accordingly, the extent to which laws and policies sought to accommodate and promote diverse group interests, beyond the sheer recognition of their existence, reflected a nation’s commitment to democratic values.3 Given the recent rise in the number of groups seeking to exercise their rights to self-determination, the message of these early theories of pluralism, with their thick conception of democracy, warrants seri1. I use the term “pluralism” as a noun to refer to a commitment to devising a plural polity. As I suggest in this Article, in particular historical moments, individuals assigned different meanings to such a commitment. Hence, when I refer to interpretations of pluralism, or to models of pluralism, I am concerned with changing understandings of the commitment to devising a plural polity, or with different models that sought to create such a polity. 2. See, e.g., ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956) [hereinafter DAHL, A PREFACE TO DEMOCRATIC THEORY]; ROBERT A. DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT (1967) [hereinafter DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES]; see also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 251-58 (1992). 3. See infra Part II.A.

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ous consideration. This Article begins to do so by “siting” pluralism. It locates three models of pluralism, which I label “socialist pluralism,” “systematic pluralism,” and “comparative pluralism,” within a particular attempt to devise a plural polity, and grounds each model in the changing ideologies4 of the historical agent who developed them.5 The particular attempt is federal Indian policy during the 1930s and 1940s, a period commonly labeled the “Indian New Deal.” The historical agent is Felix Solomon Cohen, who was the chief legal architect of federal Indian policy during the New Deal and who is also recognized today as one of the most important legal philosophers in the first half of the twentieth century.6 Federal Indian policy at the turn of the twentieth century sought to break down tribal organization and force all Indians7 to assimilate, particularly through the distribution of communal lands to individual owners.8 The essence of the Indian New Deal, at least as federal policymakers described it, was to stop allotment and assimilation by delegating to Indian tribes more authority over their economic, social, cultural, and political affairs.9 Cohen joined the Department of the Interior in 1933 to help draft the Indian Reorganization Act (IRA),10 which initiated the Indian New Deal by creating a procedure to re-establish tribal governments on Indian reservations.11 Many present-day tribal governments were formed under the IRA.12 While in office, Cohen authored the Handbook of Federal Indian Law

4. By ideology, I mean the structure of ideas and beliefs—about right and wrong, about the meaning of democracy, about the goals of national policy—that influences an actor’s understanding of reality. For a similar definition, see ELMER R. RUSCO, A FATEFUL TIME: THE BACKGROUND AND LEGISLATIVE HISTORY OF THE INDIAN REORGANIZATION ACT xiii (2000). 5. This Article is part of a larger project in which I examine the development of theories of pluralism in the twentieth century, the interdependence of the different meanings attributed to pluralism in distinct historical moments, and the relationship between theories of pluralism and the emergence of the modern welfare state. 6. For discussions of Cohen’s legal philosophy, see HORWITZ, supra note 2, at 183; DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIÈCLE) 86 (1997); Joel R. Cornwell, From Hedonism to Human Rights: Felix Cohen’s Alternative to Nihilism, 68 TEMPLE L. REV. 197 (1995); and Martin P. Golding, Realism and Functionalism in the Legal Thought of Felix S. Cohen, 66 CORNELL L. REV. 1031 (1982). For Cohen’s writings, see THE LEGAL CONSCIENCE: SELECTED PAPERS BY FELIX S. COHEN (Lucy Kramer Cohen ed., 1960) [hereinafter THE LEGAL CONSCIENCE]. 7. Given the historical nature of this Article, I use the terms “Indian” and “Indian tribes” rather than “Native Americans” or “Indian nations.” 8. See infra Part II.B. 9. See infra Part III.C. 10. Ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-79); see also DOCUMENTS OF UNITED STATES INDIAN POLICY 223-25 (Francis Paul Prucha ed., 3d ed. 2000) (1975) [hereinafter DOCUMENTS OF UNITED STATES INDIAN POLICY]. 11. § 16, 48 Stat. at 987 (codified as amended at 25 U.S.C. § 476); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 224-25. 12. E.g., RUSCO, supra note 4, at ix.

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(Handbook),13 the first comprehensive treatise on Indian law. In 1946, a year before he left the Department, Cohen helped to draft the Indian Claims Commission Act (ICCA),14 which established a commission to settle tribal land claims against the federal government.15 Today, similar claims are litigated around the world by indigenous peoples. While Cohen’s contributions to federal Indian law have been widely acknowledged, thus far no one has attempted to place them within the history of pluralism. In a forthcoming book, I argue that Cohen lived a life dedicated to the celebration of pluralism.16 Cohen’s jurisprudence and legal practice must thus be understood in relation to theories of pluralism.17 His view or interpretation of pluralism was fluid. At times it stood for the protection and accommodation of a variety of economic, social, political, and cultural interests. At others, it was a philosophical attitude that urged the understanding of reality as a variety of interdependent contexts and that celebrated the incompleteness of human knowledge. In still other moments, Cohen recognized the plurality of value systems and sought to devise mechanisms that would allow translation between distinct systems. The three models of pluralism examined in this Article were devised by Cohen during the New Deal. Using Cohen’s legal work, his writings, and his correspondence, this Article investigates the Indian New Deal as a site for the evolution of competing meanings of pluralism and explicates the complex legal, intellectual, and personal assumptions that informed them.18

13. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (U.S. G.P.O. ed., 1941) [hereinafter HANDBOOK]. 14. Ch. 959, 60 Stat. 1049 (1946). The ICCA was formerly codified at sections 70-70v3 of the United States Code, until omitted from the Code upon termination of the Commission on September 30, 1978. Act of Oct. 8, 1976, Pub. L. No. 94-465, § 2, 90 Stat. 1990 (providing for the dissolution of the Commission); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 231-33. 15. § 1, 60 Stat. at 1049; see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 232. 16. DALIA TSUK, ENCOUNTERS WITH PLURALISM: THE LIFE AND THOUGHT OF FELIX S. COHEN (forthcoming). 17. For an earlier attempt to assess the impact of Cohen’s philosophy on his legal work, see Stephen M. Feldman, Felix S. Cohen and his Jurisprudence: Reflections on Federal Indian Law, 35 BUFFALO L. REV. 479 (1986). Feldman argues that Cohen’s work on the Handbook reflected his legal realist philosophy. For a more recent attempt, see Jill E. Martin, The Miner’s Canary: Felix S. Cohen’s Philosophy of Indian Rights, 23 AM. INDIAN L. REV. 165 (1998-99). To the best of my knowledge, thus far no one has attempted to discern the relationship between Cohen’s philosophy and legal practice and the history of American pluralism. Nor has anyone sought to determine the relationship between Cohen’s political and personal aspirations and his work on federal Indian law. 18. Cohen’s changing interpretations of pluralism were mediated through his personal experience as a son of a Jewish immigrant, his political involvement with the socialist movement, his intellectual fascination with legal realism, his professional role in the Department of the Interior, and his reaction to World War II and its aftermath. All of these

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Contemporary scholars diverge in their assessment of the Indian New Deal.19 For some scholars, the New Deal was another period in the history of colonization. New Dealers20 were, accordingly, white imperialists imposing their theoretical framework on Indians.21 Similar concerns are raised today with respect to any attempt to use the sovereign state to liberate indigenous peoples or to devise a plural polity.22 For other scholars, the Indian New Deal reflected a genuine attempt to establish self-governing Indian communities that failed due to political compromises and the policy of termination that was adopted during the 1950s.23 Rather than assessing either position, I limit my discussion to the relationship between Cohen’s work on federal Indian policy and his shifting interpretations of pluralism. I make no claim about other individual, social, or political forces that played a role in shaping federal Indian policy during the New Deal, about other pluralists, or about additional intellectual traditions that informed Cohen’s work. Nor do I purport to provide a complete historical narrative of the events. For one thing, the voices of Indian tribes are conspicuously absent from this account, though Indians were hardly passive recipients of federal legislation, and their voices are clearly important to evaluating the successes and failures of the New Deal.24 My focus is Cohen’s changing theories of pluralism. I examine how these theories affected Cohen’s understanding of his task and how they changed in the course of his interaction with Indian tribes.

aspects are more fully developed in Encounters with Pluralism: The Life and Thought of Felix S. Cohen. TSUK, supra note 16. 19. See generally RUSCO, supra note 4, at ix-xiv. 20. The term “New Dealers” in this Article refers to officials in the Department of the Interior, particularly those in the Solicitor’s Office, who administered the Indian New Deal. 21. See, e.g., Vine Deloria, Jr., Reserving to Themselves: Treaties and the Powers of Indian Tribes, 38 ARIZ. L. REV. 963 (1996). 22. See, e.g., Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 NOTRE DAME L. REV. 615 (1992); S. James Anaya, The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs, 28 GA. L. REV. 309 (1994); Russel Lawrence Barsh, Current Development: United Nations Seminar on Indigenous Peoples and States, 83 AM. J. INT’L L. 599 (1989); Rebecca Tsosie, Privileging Claims to the Past: Ancient Human Remains and Contemporary Cultural Values, 31 ARIZ. ST. L.J. 583 (1999); Robert A. Williams, Jr., Frontier of Legal Thought III: Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples Survival in the World, 1990 DUKE L.J. 660. 23. For these diverse opinions, see INDIAN SELF-RULE: FIRST HAND ACCOUNTS OF INDIAN-WHITE RELATIONS FROM ROOSEVELT TO REAGAN (Kenneth R. Philp ed., 1995) [hereinafter INDIAN SELF-RULE]; and THE STATE OF NATIVE AMERICA: GENOCIDE, COLONIZATION, AND RESISTANCE (M. Annette Jaimes ed., 1992) [hereinafter THE STATE OF NATIVE AMERICA]; and compare Deloria, supra note 21, to VINE DELORIA, JR., BEHIND THE TRAIL OF BROKEN TREATIES: AN INDIAN DECLARATION OF INDEPENDENCE 187-206 (1985). 24. See generally RUSCO, supra note 4.

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For Cohen, the IRA, the Handbook, and the ICCA reflected different models for devising a plural polity, that is, socialist pluralism, systematic pluralism, and comparative pluralism, respectively.25 By exploring the Indian New Deal as a site for the evolution of theories of pluralism, this Article calls attention to an important chapter in the modern narrative of pluralism, a period that is also significant in the life of Felix Cohen and in the history of federal Indian law. By investigating the intellectual and personal assumptions underlying the three models that Cohen developed during the New Deal, this Article further shows that models of pluralism, and laws that are informed by them, are more than means for devising a plural polity. They are sites for the construction and negotiation of cultural, social, and political ideologies and for the assertion and reconfiguration of identity.26 By siting pluralism, I also hope this Article offers insights from history about the assumptions, possibilities, and difficulties associated with attempts to devise legal mechanisms that would celebrate cultural, political, and religious diversity.27 Part II provides the intellectual and legal background for the story of pluralism, Cohen, and the New Deal. It surveys the emergence of theories of pluralism, particularly cultural and political pluralism, during the turn of the twentieth century. Cohen’s personal and intellectual attraction to theories of pluralism brought him to the New Deal. These theories provided him with tools for evaluating what he saw on the eve of the New Deal as the devastating impact of federal Indian policy. They also shaped the intellectual framework within which he worked to devise policies that arguably sought to improve the situation by transferring to Indian tribes more authority over their cultural, economic, and political affairs. Part III focuses on “socialist pluralism”—Cohen’s initial model for devising a plural polity. Cohen’s socialist pluralism was grounded in 25. These models did not explicitly address the relationship between groups and individuals within and outside group boundaries. Thus, although the relationship between groups and individuals is always implicit in discussions of the status of collective entities, I do not expressly examine this issue in this Article. See also infra Part III.B. 26. This is not to suggest that only ideologies and conceptions of identity affected the outcomes of the Indian New Deal. As will be developed in the Article, political compromises and constraints derived from the nature of legislative processes were as important. I focus, nonetheless, on ideologies and conceptions of identity. 27. While the Indian New Deal is the site discussed in this Article, I wish to emphasize that my focus is the history of pluralism. The models that Cohen devised were imprinted upon federal Indian law. Yet, they were not necessarily effective on Indian reservations. Cf. Feldman, supra note 17, at 518-24 (discussing Cohen’s legal realist plans going awry); Rebecca Tsosie, American Indians and the Politics of Recognition: Soifer on Law, Pluralism and Group Identity, 22 L. & SOC. INQUIRY 359 (1997) (discussing the unique status of Indian tribes with respect to conceptions of group rights). My interest in these models focuses on the lessons they tell about our ongoing commitment to pluralism and our ability (personal and collective) to embrace diversity as a constitutive element of our society.

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a critique of the absolute sovereignty of the state and in a description of society as composed of a variety of self-governing groups, coordinated by a centralized government. It reflected Cohen’s socialist politics, particularly his support for labor unions, and his aspirations as a Jewish American to be assimilated in the body politic of the nation. In the early 1930s, Cohen believed that socialist pluralism would solve not only the conflict between labor and capital, but also many other problems involving groups (that is, ethnic, racial, or religious tensions). When he joined the Department of the Interior to help draft the IRA, Cohen further assumed that Indian reservations were fertile fields where his socialist pluralist ideal of self-governing communities could be successfully planted. Drawing on Cohen’s correspondence, legal notes, and memoranda, Part III explores Cohen’s articulation of his socialist pluralist ideal, his reasons for adopting it, and how Cohen’s socialist pluralist assumptions affected his role in drafting and administering the IRA. Particularly, I show how Cohen’s belief in the plausibility of universal political structures as solutions for diverse problems hindered his aspirations to protect the rights of Indian tribes and, more broadly, to devise a plural polity. Part III concludes with Cohen’s reevaluation of socialist pluralism, especially his growing attentiveness to the importance of cultural interests. The core of Part IV is “systematic pluralism”—Cohen’s second model for realizing diverse group interests.28 Systematic pluralism was informed by Cohen’s growing alertness to cultural interests, which led him to identify not only a multiplicity of group interests within one system, but also a multiplicity of value systems. While his socialist pluralism expressed a commitment to the mediation of conflicting interests within one legal system, Cohen’s systematic pluralism sought to reconcile conflicts between diverse value systems by expanding any given system to encompass the values and assumptions of other systems. It imagined law as capable of incorporating the variety of value systems that characterized American society. It meant to protect the rights of Native Americans—as well as Jewish Americans, particularly Jewish refugees from Europe—to bring their different values into the American polity. According to Cohen, the fulfillment of his ideal of systematic pluralism required a commitment to group rights. As Part IV shows, the Handbook reflected this intellectual shift. Cohen wrote the Handbook in an attempt to improve the 28. I label this model “systematic pluralism” to allude to the article in which, as I show, Cohen articulated this interpretation of pluralism. See Felix S. Cohen, The Relativity of Philosophical Systems and the Method of Systematic Relativism, 36 J. PHIL. 57 (1939) [hereinafter Cohen, Systematic Relativism], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 95; see also infra text accompanying notes 216-23.

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understanding of the relationship between Indians and the federal government. Aiming at the inclusion of historically marginalized social and cultural voices, one of the main themes of the Handbook was that a long line of conquerors, including the federal government, had recognized tribal rights. Ironically, this recognition also entailed the subjection of tribal affairs to congressional control.29 Cohen’s attempt to universalize a theory of group rights, in short, tended to obscure the voices of particular groups in actively determining their own rights. As many have noted, the voices of Indian tribes were missing from the Handbook.30 As Cohen’s analysis became fixated on the need to protect particular group rights, his systematic pluralist assumption—that social, philosophical, legal, and ethical systems could be enlarged to include other systems, ultimately becoming one—gradually disintegrated. Part V examines Cohen’s alternative—the third model for accommodating diverse group interests, which I label “comparative pluralism.” In the late 1940s, comparative pluralism endorsed the particular interests of groups (for example, Native Americans and Jewish Americans) as valid, and sought to mediate conflicting value systems, not by extending one system to include others, but by encouraging dialogue between and among distinct systems. It embraced the preservation of all particular traditions as the American ideal of democracy. As Part V shows, the ICCA reflected this vision. In Cohen’s view, the ICCA was meant to settle historical and cultural differences between Indian tribes and American society. Supposedly accepting that tribal sovereignty was inherent rather than delegated, the ICCA waived the sovereign immunity of the federal government and allowed Indian tribes to sue the government for damages for their relinquished lands. Seeking to recognize the voices of Indian tribes, the ICCA established a special investigatory commission to hear and determine tribal land claims against the United States.31 By providing a forum (however limited) for Indian tribes to tell their narratives of 29. Notably, the Handbook resurrected “the fiction of conquest,” thus preserving the plenary power of Congress to intervene in the tribes’ domestic affairs. E.g., RUSSEL LAWRENCE BARSH & JAMES YOUNGBLOOD HENDERSON, THE ROAD: INDIAN TRIBES AND POLITICAL LIBERTY 112 (1980). Barsh and Henderson explain: According to the conquest myth, tribes possess, at first, all of the powers of a sovereign nation. Conquest by the United States renders the tribe subject to federal legislative powers, and effectively terminates the external sovereignty of the tribe. Finally, the balance of internal powers is subject to qualification by treaties and express legislation. Id. at 278; see also Russel Lawrence Barsh, Felix S. Cohen’s Handbook of Federal Indian Law, 1982 Edition, 57 WASH. L. REV. 799 (1982) (book review). 30. E.g., Deloria, supra note 21, at 963. 31. Ch. 959, § 1, 60 Stat. 1049, 1049 (1946); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 232.

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American history, Cohen hoped to encourage communication between distinct groups, for example, between Indians and nonIndians. By emphasizing the possibility of translation between holders of diverse value systems, Cohen—the Jewish American—also hoped that the ICCA would prove the superiority of comparative pluralism to what at the time seemed to be the alternative— totalitarianism. As Part V also shows, during the drafting and implementation of the ICCA, the interests of Indian tribes were often lost in this web of political, personal, and intellectual goals.32 Finally, Part VI of the Article examines the aftermath of the Indian New Deal. Cohen’s legal work during the New Deal both influenced and was motivated by his changing interpretations of pluralism. His fascination with pluralism was unique, particularly his attempts to devise legal mechanisms that would be sensitive to competing social, political, economic, and cultural systems. Also exceptional was Cohen’s freedom to bring theories of pluralism to bear upon national policy. With its orientation toward group rights, pluralism did not seem as a natural outgrowth of the ideals of American liberalism. During the New Deal, the Department of the Interior welcomed Cohen’s experiments. But as the Cold War developed, attacks mounted on anything remotely socialist, let alone communist, and pressures increased to change federal Indian policy. The 1950s thus witnessed a variety of attempts to end the special status of Indian tribes and their particular relationship to the federal government. In 1958, five years after Cohen’s death, a new version of the Handbook of Federal Indian Law sought to eradicate the pluralistic characteristics of the original edition.33 In such an atmosphere, the Indian Claims Commission failed to provide sufficient compensation for lost lands. The Indian New Deal was a short moment in American history, but its impact is of enduring importance. Each of its products (the IRA, the Handbook, and the ICCA) was informed by a different interpretation of pluralism; each accepted diversity as a constitutive element of American society. The IRA attempted to create a general structure under which different tribes could exercise their autonomy. The Handbook, in turn, sought to expand the American legal system 32. Cf. BARSH & HENDERSON, supra note 29. They note: The Indian Claims Act was not passed just to make it possible for tribes to sue the United States . . . . It was hoped that the Indian Claims Commission would accelerate the process of liquidating claims and thereby remove as quickly as possible Indians’ supposed incentive for retaining their tribal allegiances. Id. at 125. 33. OFFICE OF THE SOLICITOR, U.S. DEP’T OF THE INTERIOR, FEDERAL INDIAN LAW (1958) [hereinafter 1958 HANDBOOK]. In 1982, a new edition of the original Handbook was published. FELIX S. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW (Rennard Strickland et al. eds., 1982) [hereinafter 1982 HANDBOOK]. Another version is currently in production.

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to take account of the particular interests of Indian tribes. Finally, the ICCA attempted to mediate the tensions between particular legal cultures, not by incorporating them under general or universal structures, but by creating forms of communication that would allow translation from one legal system to another. It is important to remember, nonetheless, that the IRA, the Handbook, and the ICCA failed to fulfill the goals they were set to achieve. Indeed, their significance lies outside federal Indian policy during the New Deal.34 As models of pluralism, they offer plausible archetypes for addressing issues involving indigenous peoples, ethnic, or religious groups. They, furthermore, contain lessons for contemporary attempts by demonstrating that the choices of policymakers reflect not only legal or intellectual ideologies, but also the intersection of the policymakers’ own sense of identity with their understanding of other social and cultural identities. I conclude both with doubt and with hope. The history of pluralism counsels doubt as it begins in an abyss of hate, violence, and colonization. The failure of the Indian New Deal may indicate the inadequacy of law (statutory, judicial, and codified) as a means of overcoming political, social, economic, or cultural chasms, and hence also the shortcomings of any attempt to devise a plural polity through law. Cohen naively viewed federal law as a site for remedying collective traumas, particularly the Indian trauma of colonization (or forced inclusion). Underlying this understanding of the law was Cohen’s personal relationship to American law as a site for ameliorating the Jewish trauma of exile (or forced exclusion). The trauma that law inflicted, even as it sought to remedy past injuries to particular communities, was thus repressed. Similar constraints continue to impede contemporary attempts to devise a plural polity, as different others (ethnic, religious, cultural, and political groups) struggle both to escape law’s violence and to come under its protection.35

34. On the importance of Indian law to the main concerns of American legal thought, see Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381 (1993); Frank Pommersheim, “Our Federalism” in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts’ Teaching and Scholarly Community, 71 U. COLO. L. REV. 123 (2000); and Judith Resnik, Dependent Sovereigns: Indian Tribes, States and the Federal Courts, 56 U. CHI. L. REV. 671 (1989). 35. On the relationship between law and trauma, see Shoshana Felman, Forms of Judicial Blindness: Traumatic Narratives and Legal Repetitions, in HISTORY, MEMORY AND THE LAW (Austin Sarat & Thomas R. Kearns eds., 1999). See also Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601 (1986), reprinted in NARRATIVE, VIOLENCE AND THE LAW: THE ESSAYS OF ROBERT COVER 203 (Martha Minow et al. eds., 1995) [hereinafter THE ESSAYS OF ROBERT COVER].

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Yet, in the shadows of the law lurks hope, as law’s constraints may be transformed into possibilities. For those who seek to create a plural polity, and for those who are affected by such attempts, legal structures become sites for social contacts. Cohen’s personal development, particularly the influence of interactions with Indian tribes on his own sense of identity as a Jewish American, is thus an important aspect of the narrative.36 Not only is this transformation mapped out in the body of federal Indian law; it also illustrates how even failed attempts to devise formalistic legal structures to accomplish pluralistic goals create peripheries where pluralism might flourish. At the very least, such attempts force individuals to recognize themselves and their assumptions about others. In the shadows of the law, doubt may turn to hope. II. SETTING A. Pluralism Emerging at the turn of the twentieth century, pluralism, especially as developed by William James, insisted on the plurality of things, as given in experience, and on the impossibility of a single law to traverse all the various domains of being.37 A pluralist theory of knowledge insisted on the multiplicity (whether limited or infinite) of knowers in the world and various forms of knowledge or truth,38 none of which could claim epistemological primacy.39 In ethics, pluralism implied the existence of a variety of competing ends, among which policymakers had to choose. American democracy was accord-

36. My argument in this essay is limited to Cohen’s personal transformation. The transformation of individual Indians (the other other) through such encounters is a topic for another article. 37. JEAN WAHL, THE PLURALIST PHILOSOPHIES OF ENGLAND AND AMERICA 317-18 (Fred Rothwell trans., The Open Court Co. 1925). 38. This characterization is based on Hilary Putnam’s interpretation of pluralism. Putnam traces pluralism to Kant. In the third Critique and in Kant’s postcritical writings, according to Putnam, one can see more than “the simple dualism of a scientific image of the world and a moral image of the world.” HILARY PUTNAM, PRAGMATISM: AN OPEN QUESTION 30 (1995). There is, Putnam argues, “a tendency towards genuine pluralism, which Kant perhaps resisted, but which nevertheless surfaces in his work.” Id. Particularly, according to Putnam, one can see in Kant’s writings “various interactions between these two [images] and various spinoffs—spinoffs that come from the interdependence of the moral image of the world and the scientific image of the world . . . spinoffs that come from the interaction of pure practical reason with sensibility and inclination, and so on.” Id. Thus, Putnam argues, Kant began “to speak not only of a moral image of the world and a scientific image of the world, but also . . . of a religious image of the world . . . and . . . aesthetic images of the world, and also of legal images of the world, and so on.” Id. at 3031. However, Putnam continues, in spite of Kant’s “incipient pluralism,” Kant maintained that only the scientific image of the world contained what might properly be called “knowledge.” Id.; see also WAHL, supra note 37, at 155 (discussing William James's pluralism). 39. See NELSON GOODMAN & CATHERINE Z. ELGIN, RECONCEPTIONS IN PHILOSOPHY AND OTHER ARTS AND SCIENCES 24-25 (1988).

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ingly the outcome of constructive change, which resulted in individuals ideally considering all interests when making political decisions. “Values were ‘objective’ because they were inter-subjectively verifiable.”40 Pluralism had much in common with pragmatism. Both approaches substituted empiricism, particularism, indeterminacy, and uncertainty for rationalism, universalism, determinacy, and certainty.41 Pragmatism, especially as espoused by James, emphasized that the understanding of reality was mediated through experience. It was a theory of truth that sought to redefine reality according to experience.42 Pluralism focused on the complex nature of reality. Not only was our conception of reality mediated through our individual experiences—as pragmatism suggested—but reality was also, for each one of us, one and many at the same time.43 Individuals had “separate ideas of the chair, of the table, of the pew.”44 They had “an idea of them all together. Yet this last idea [was] not made up of the former separate ones—it [was] a genuine unit, in which the separate ones [were] parts. The separate ones [were] independent of it and [were] not independent of it—and so on.”45 Pluralism’s focus on the relationship between the one and the many appealed to Progressive thinkers. It offered a way out of the tension between conservative individualism, on the one hand, and radical collectivism, on the other.46 During the early decades of the twentieth century, James’s students and followers thus transformed his pluralist philosophy—his discussion of forms of knowledge and the relationship between the one and the many—into arguments about democracy and national identity. Political theorists found in 40. BRUCE KUKLICK, THE RISE OF AMERICAN PHILOSOPHY, CAMBRIDGE MASSACHUSETTS, 1860-1930, at 510 (1977). This argument draws on an examination of the works of Ralph Barton Perry. Though not a self-proclaimed pluralist, Perry, whose Thought and Character of William James (1935) is still one of the best commentaries on James, was an ally, rejecting idealism in ethics in favor of a more pluralistic theory of values. See RALPH B. PERRY, GENERAL THEORY OF VALUE: ITS MEANING AND BASIC PRINCIPLES CONSTRUED IN TERMS OF INTEREST (1926); see also KUKLICK, supra, at 255, 409, 441-42, 505-15. 41. For a similar discussion of modernism and postmodernism, see Roderick A. Macdonald, Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism, 15 ARIZ. J. INT’L & COMP. L. 69, 71 (1998). 42. E.g., WILLIAM JAMES, PRAGMATISM, A NEW NAME FOR SOME OLD WAYS OF THINKING (1907). 43. E.g., WILLIAM JAMES, A PLURALISTIC UNIVERSE: HIBBERT LECTURES AT MANCHESTER COLLEGE ON THE PRESENT SITUATION IN PHILOSOPHY (University of Nebraska Press, 1996) (1909). 44. Horace M. Kallen, A Pluralistic Universe: Professor James on the Present Situation in Philosophy, BOSTON EVENING TRANSCRIPT, June 16, 1909, at 26 (book review). 45. Id.; see also Hilary Putnam, James’s Theory of Truth, in THE CAMBRIDGE COMPANION TO WILLIAM JAMES 166 (Ruth Anna Putnam ed., 1997). 46. Cf. Daniel R. Ernst, Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915-1943, 11 L. & HIST. REV. 59, 60 (1993).

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James’s philosophy a solution to rapidly changing social and economic conditions—in particular, the rise of big corporations, labor agitation, and growing disparities of wealth and income. If, as James argued, “[t]he pluralistic world [was] . . . more like a federal republic than like an empire or a kingdom,”47 then, political pluralists argued, sovereignty could not be absolute. Rather, sovereignty was distributed among different groups, in particular political groups such as churches, trade unions, neighborhood groups, but also—often to the dismay of many political pluralists who sided with labor in its battle against capital—the business corporation.48 Cultural critics, in turn, turned to James’s pluralism to attack the ideology of the melting pot, that is, the notion that all cultures were destined in the long run to become merged into one homogeneous mass, and that it was desirable for all cultural groups to divest themselves of traces of their native cultures. Instead, cultural pluralists stressed the significant contribution of diverse cultural groups—that is, ethnic or racial groups—to the western democratic tradition. In their writings, ethnic, racial, and class differences became important sources of—not obstacles to—individual freedom.49 The analysis proposed by cultural and political pluralists anticipated issues raised in our contemporary discussions of civil society and our debates over the politics of identity, particularly with respect to indigenous peoples. Cultural pluralists sought legal mechanisms that would accommodate the distinct heritages of diverse cultural groups; political pluralists strove to empower distinct associations by recognizing their sovereignty, however limited. As a midway between radical collectivism, on the one hand, and conservative individualism, on the other, cultural and political pluralists chose the group as the forum in which individuals received meanings for their ideas and actions.50 Their argument was teleological. Cultural pluralists emphasized the particular and group-derived identities of individuals and urged the polity to preserve the cultural heritage of every ethnic group. Political pluralists advocated a functional concept of political representation in order to protect the needs of distinct associations. Despite their seemingly distinct focal points—involuntary versus 47. JAMES, supra note 43, at 321-22. 48. E.g., THE PLURALIST THEORY OF THE STATE: SELECTED WRITINGS OF G.D.H. COLE, J.N. FIGGIS, AND H.J. LASKI (Paul Q. Hirst ed., 1989); MARY P. FOLLETT, THE NEW STATE: GROUP ORGANIZATION THE SOLUTION OF POPULAR GOVERNMENT (1918); W.Y. ELLIOTT, THE PRAGMATIC REVOLT IN POLITICS: SYNDICALISM, FASCISM, AND THE CONSTITUTIONAL STATE (1928). 49. E.g., Horace M. Kallen, Democracy Versus the Melting-Pot (pts. 1 & 2), NATION, Feb. 18, 1915, at 190-94, & Feb. 25, 1915, at 217-20 [hereinafter Kallen, Democracy Versus the Melting Pot], reprinted in HORACE M. KALLEN, CULTURE AND DEMOCRACY IN THE UNITED STATES: STUDIES IN THE GROUP PSYCHOLOGY OF THE AMERICAN PEOPLES 67 (1924) [hereinafter KALLEN, CULTURE AND DEMOCRACY]. 50. See Ernst, supra note 46, at 60.

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voluntary associations—cultural and political pluralists alike envisioned groups as repositories of particular ends that policymakers needed to recognize. Whether marching under the banner of “cultural self-determination” or that of “self-government,” advocates of both ideologies pledged a strong commitment to group autonomy. Early theories of cultural and political pluralism laid the foundation for Felix Cohen’s changing understandings of pluralism and, more broadly, for the evolution of different interpretations of pluralism throughout the twentieth century. For most of the 1910s and 1920s, such interpretations were limited to criticisms of existing policies. The coming to power of the New Deal administration, however, offered an opportunity for many pluralists to bring their theories to bear upon national policy.51 The door of federal Indian law opened when in 1933, Harold L. Ickes, Roosevelt’s choice for a Secretary of the Interior, selected John Collier as the new Commissioner of Indian Affairs. To assist Collier, Ickes appointed William Zimmerman, an old family friend, as an Assistant Commissioner, and Nathan R. Margold as Solicitor of the Department of the Interior. Felix Cohen came as an Assistant Solicitor.52 As Part II.B details, what Cohen saw in 1933 on Indian reservations was “a condition approximating legalized anarchy.”53 B. Federal Indian Policy on the Eve of the New Deal54 Throughout the nineteenth and early twentieth centuries, Indian tribes were at the outer boundaries of American society. Until the mid-nineteenth century, white settlers sought mainly to push Indian tribes westward and made no attempt to integrate the tribes into Anglo-American society. Unlike other minority groups, Indian tribes were regarded as “distinct political communities” with limited sovereignty, as Chief Justice Marshall described them in his famous 51. See id. (noting the impact of pluralism on labor legislation). 52. For more information about these appointments, see T.H. WATKINS, RIGHTEOUS PILGRIM: THE LIFE AND TIMES OF HAROLD L. ICKES, 1874-1952, at 325-33 (1990); and KENNETH R. PHILP, JOHN COLLIER’S CRUSADE FOR INDIAN REFORM, 1920-1954, at 113-17 (1977). For correspondence between Margold, Collier, Ickes, and Felix Frankfurter, see John Collier Papers, Microfilm Reels 6 and 15, Manuscripts and Archives, Yale University Library. See also RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 133-39 (1975) (examining the appointment of Margold). 53. [Felix S. Cohen], Memorandum: The Problem of Law and Order on Indian Reservations in Relation to the Wheeler-Howard Bill (ca. 1934), Felix S. Cohen Papers, Box 1, Folder 11, Yale Collection of Western Americana, Beinecke Library, Yale University [hereinafter Memorandum: Law and Order on Indian Reservations]. My attribution of this Memorandum to Cohen is based on its content and style and on a note from Fred Daiker to Harry Edelstein (Aug, 13, 1937), Felix S. Cohen Papers, Box 1, Folder 11, supra, which identifies Cohen as the author. See also RUSCO, supra note 4, at 200. 54. The following is a sketch of federal Indian policy at the turn of the twentieth century. For a more complete account, see RUSCO, supra note 4, at 1-61.

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Worcester v. Georgia opinion.55 Their efforts to maintain their tribal organization, however, often proved futile in the face of military conquest, fraudulent or unfulfilled treaties, and the pressure of white settlement that forced them away from most of their lands.56 Beginning in the 1850s, Indians were forced onto reservations.57 In the second half of the nineteenth century, the federal government took a more active role in Indian affairs, embracing a policy that legalized the devastating disintegration of Indian life. Beginning in the 1870s, government officials stressed the need to assimilate all Indians into the mainstream of American life. The General Allotment Act of 1887 (the Dawes Act),58 which articulated the new policy of assimilation, targeted the tribes’ communal holding of property.59 Grounded in classical legal thought and in a particular image of masculinity, the Act equated freedom with individual possession of property.60 It sought to force assimilation and the disintegration of tribal organization, particularly through the distribution of communal lands to individual owners.61 As Richard Hart has recently noted, “the Act was meant to force Indians to cease their tribal ways, to become individual farmers on small plots of lands, and thus to open the remainder of U.S. Indian reservations to non-Indian use.”62 The turn 55. 31 U.S. 515, 559 (1832). See generally Tadd M. Johnson & James Hamilton, SelfGovernance for Indian Tribes: From Paternalism to Empowerment, 27 CONN. L. REV. 1251 (1995) (discussing the changing relationship between the federal government and American Indians); L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 COLUM. L. REV. 809 (1996) (describing the changing nature and extent of tribal sovereignty); Robert N. Clinton, Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law, 46 ARK. L. REV. 77 (1993) (discussing the role of law and the western legal system in rationalizing the colonization of Indians); Robert A. Williams, “The People of the States Where They Are Found Are Often Their Deadliest Enemies”: The Indian Side of the Story of Indian Rights and Federalism, 38 Ariz. L. Rev. 981 (1996) (comparing the traditional legal narrative to its Indian counterpart). 56. GRAHAM D. TAYLOR, THE NEW DEAL AND AMERICAN INDIAN TRIBALISM: THE ADMINISTRATION OF THE INDIAN REORGANIZATION ACT, 1934-45, at 1-3 (1980). 57. E.g., RUSCO, supra note 4, at 1. 58. Ch. 119, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. §§ 331-54); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 170-73. 59. § 1, 24 Stat. at 388 (codified at 25 U.S.C. § 331) (repealed) (providing for survey of reservation lands and allotment to individuals); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 170. 60. See Yuanchung Lee, Rediscovering the Constitutional Lineage of Federal Indian Law, 27 N.M. L. REV. 273, 277-85 (1997). On possessive individualism and masculine identity, see MARK E. KANN, ON THE MAN QUESTION: GENDER AND CIVIC VIRTUE IN AMERICA (1991). On the relationship between classical legal thought and private property, see HORWITZ, supra note 2, at 145-67; and see also Joseph William Singer, Sovereignty and Property, 86 NW. U. L. REV. 1 (1991) (showing how, despite the rhetoric of private property, Indian property was not protected). 61. See TAYLOR, supra note 56, at 1-5. 62. E. Richard Hart, Foreword to INDIAN SELF-RULE, supra note 23, at 6, 8. Vine Deloria has explained that railroads sought lands across the continent for their tracks and for settlements along their lines to ensure the use of the railroads to ship agricultural produce to both coasts. DELORIA, supra note 23, at 188. The Dawes Act institutionalized the

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of the twentieth century thus witnessed the reduction of many tribal governments “from unalloyed internal sovereigns to virtual nonentities.”63 A series of laws passed during the first decades of the century added insult to injury: they sought to enhance Indian assimilation, first by giving individual Indians their “pro rata share” of tribal funds and then by giving them “American” citizenship. The 1907 Lacey Act64 authorized the Secretary of the Interior to grant to individual Indians control of their “pro rata share” of tribal funds.65 The 1917 “Sells Declaration” sanctioned a variety of measures meant to swiftly accomplish the absorption of Indians into the nation.66 The 1919 Citizenship for World War I Veterans Act67 conferred citizenship on every veteran who so desired.68 The Snyder Act of 192169 expanded the powers of the Bureau of Indian Affairs (BIA) “to expend congressional appropriations for most reservation activities, including health, education, employment, real estate administration, and irrigation.”70 Finally, the 1924 Indian Citizenship Act71 declared “all non-citizen Indians born within the territorial limits of the United

concept of “wardship.” Under section 5 of the Act, the federal government would hold title to allotted lands for twenty-five years “in trust for the sole use and benefit” of the allottee. After twenty-five years, the property laws of “the State, or Territory where such lands [were] situated” would apply as to descent and partition. § 5, 24 Stat. at 389 (codified as amended at 25 U.S.C. § 348); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 171-72. The federal government, through negotiations with the Department of the Interior, would purchase any surplus, nonallotted lands, and hold the purchase money in trust for the sole use of the possessor tribes. However, Congress was authorized to appropriate money “as it saw fit” for “the education and ‘civilization’” of tribal members. Id. As Tadd Johnson and James Hamilton have noted, “by imbuing American Indians with respect and reverence for white American institutions,” assimilationists believed that “the American Indians could be made happier, wealthier, and wiser.” Johnson & Hamilton, supra note 55, at 1257. 63. Joseph D. Matal, A Revisionist History of Indian Country, 14 ALASKA L. REV. 283, 291 (1997). 64. Ch. 2523, 34 Stat. 1221 (1907) (codified as amended at 25 U.S.C. § 119); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 208. 65. Ch. 2523, 34 Stat. 1221; see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 208. 66. Indian Commissioner Sells, A Declaration of Policy, Extract from the Annual Report of the Commissioner of Indian Affairs, October 15, 1917, in DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 213-15. 67. Ch. 95, 41 Stat. 350 (1919); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 215. 68. Ch. 95, 41 Stat. 350; see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 215. 69. Ch. 115, 42 Stat. 208 (1921) (codified as amended at 25 U.S.C. § 13) (providing an “Authorization of Appropriations and Expenditures for Indian Affairs”); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 215-16. 70. Johnson & Hamilton, supra note 55, at 1258; see also ch. 115, 42 Stat. 208; DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 215-16. 71. Ch. 233, 43 Stat. 253 (1924) (codified as amended at 18 U.S.C. § 1401(b)); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 218.

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States . . . to be citizens of the United States.”72 Indians were presumably welcomed into the polity but only as long as they relinquished their “old ways.”73 The combination was disastrous. Outlining the failures of the allotment policy, the 1928 Meriam Report74 described “poverty, disease, suffering, and discontent” among Indians.75 Between 1887 and 1932 almost two-thirds of what remained of Indian lands were lost to white exploitation.76 Many Indians were theoretically in possession of considerable property, including land, but were, in reality, paupers.77 Few became successful farmers or ranchers, a fact that helped to deepen social and political divisions on the reservations.78 The distribution of tribal lands also hastened the disintegration of many tribal governments or at least forced them to alter their traditional structures.79 Finally, assimilation was never really even offered: Indians were “given” citizenship but denied the rights of citizens, including the right to vote, access to local schools, and the right to serve on juries.80 By the late 1920s, the principal actors in the field of Indian policy were critical of the policy of allotment.81 With the coming to power of the New Deal administration, federal Indian policy was ripe for change. Shortly after his appointment in the spring of 1933, John 72. Ch. 233, 43 Stat. 253; see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 218. 73. See generally WALTER BENN MICHALES, OUR AMERICA: NATIVISM, MODERNISM, AND PLURALISM 30-31 (1995). For a discussion of Federal Indian policy during the first decades of the twentieth century, particularly the 1920s, see Larry A. DiMatteo & Michael J. Meagher, Broken Promises: The Failure of the 1920’s Native American Irrigation and Assimilation Policies, 19 U. HAW. L. REV. 1 (1997). 74. INSTITUTE FOR GOV’T RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION (Lewis Meriam et al. eds., 1928); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 219-22. 75. Johnson & Hamilton, supra note 55, at 1258. While criticizing the administration of Indian policy as inefficient and paternalistic, the Report recommended, nonetheless, a policy of assimilation that would encourage self-sufficiency. Id. For an innovative discussion of the problematic economic nature of allotment, see also Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 685-87 (1998). 76. TAYLOR, supra note 56, at 5. 77. [Felix S. Cohen], Draft of Address by [the New Solicitor of the Department of the Interior, Nathan] Margold, Felix S. Cohen Papers, Box 1, Folder 13, Yale Collection of Western Americana, Beinecke Library, Yale University [hereinafter Draft of Address by Margold]. My attribution of this Draft to Cohen is based on its content and style and on memoranda identifying Cohen as the author. Felix S. Cohen Papers, Box 1, Folder 13, supra. 78. RUSCO, supra note 4, at 56. 79. Id. at 57. No clearly stated policy toward Indian governments existed. Furthermore, since tribal governments did not disappear, the BIA was at times “forced” to acknowledge their existence and deal with them, rather than with individual Indians. Id. at 1-34. 80. Draft of Address by Margold, supra note 77. 81. RUSCO, supra note 4, at 62-93.

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Collier—the new Commissioner of Indian Affairs—denounced land allotment as a violation of tribal sovereignty and the vested rights that Indians had secured in previous treaties in return for much of their lands. Collier pledged instead the moral and legal obligation of the government to stop land allotment and to act upon the bilateral contractual relationship that it had created before 1871 with Indian tribes.82 Such was the agenda that Collier envisioned the drafters of the IRA adopting. A variety of reasons, including the fact that Collier was yet to solidify his passion into a comprehensive legal program, delayed the enactment of the IRA. Then, in the fall of 1933, a decision was made to bring in “experts” “with little previous involvement with Indian affairs to take the lead in preparing the legislative program.”83 Felix Cohen was one of the two assistant solicitors appointed by Solicitor Margold to the task of bill drafting.84 Upon his appointment, Cohen criticized the policy of allotment as creating on Indian reservations “a condition approximating legalized anarchy, controlled in practice only by the unreviewable disciplinary powers of the Indian Office.”85 To repair the damage, Cohen suggested that the task of the new administration was to stop the pressing of “capitalist individualism” on Indian tribes “through the allotment of tribal property to individual Indians and through the inculcation of the capitalist psychology,” and instead, to protect and encourage “a communal ceremony.”86 Cohen saw his role in the Department of the Interior as helping to carry out on Indian reservations an experiment in different forms of communal life and, more broadly, pluralism. According to Cohen, pluralism was compatible with centralized governmental planning. The balance between centralized planning and decentralized government was, however, very delicate. As the experiment progressed, the balance shifted along with Cohen’s understanding of pluralism. Parts III through V explore this transformation through the mediation of the IRA, the Handbook, and the ICCA. Part III investigates the relationship between the IRA and Cohen’s socialist pluralism. Part IV examines Cohen’s systematic pluralism and how it affected

82. Kenneth R. Philp, Introduction: The Indian Reorganization Act Fifty Years Later, in INDIAN SELF-RULE, supra note 23, at 15, 16-17. 83. RUSCO, supra note 4, at 192; see also id. at 177-92. 84. Id. at 192. 85. Memorandum: Law and Order on Indian Reservations, supra note 53. 86. Letter from Felix Cohen to Norman Thomas (Nov. 8, 1933), Joseph P. Lash Papers, Box 50, Folder 9, Franklin D. Roosevelt Library. Cohen was aware that real estate interests saw in “unrestricted Indian ownership of individual lands an opportunity to grab good land at low prices or simply to shift local taxes.” Id. Yet, he believed that “the officials in the service, whether misguided or not, [had] an honest idealism that one [didn’t] find in private business or private law practice to nearly the same extent.” Id.

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his writing of the Handbook. Finally, Part V focuses on Cohen’s comparative pluralism and how it was reflected in the ICCA. III. “MAKING ‘REDS’ OF THE INDIANS”: SOCIALIST PLURALISM AND THE INDIAN REORGANIZATION ACT, 1934 A. Critique and Utopia Cohen’s critique of the situation on Indian reservations on the eve of the New Deal, and, more broadly, his opposition to the policies of assimilation and allotment, stemmed from his objection to the imposition of “capitalist individualism” on Indian reservations. In his view, the oppression of Indian tribes was far more pervasive than suggested by critiques of particular programs and policies: Cohen believed that with respect to Indian tribes, capitalism itself was oppressive. To leave Indian tribes to compete with business corporations in a supposedly noncoercive world, he asserted, was as encumbering as the control of their affairs by the BIA. “We shall not add to the Indian’s freedom by accepting the shallow arguments of those who insist that the Indian will be free when he is given his own individual property, [and] permitted to live under state laws and enjoy freedom of contract,” Cohen proclaimed.87 “The termination of governmental control,” he concluded, “would not inaugurate Indian freedom. It would only exchange the slavery of bureaucracy for the slavery of poverty.”88 What, then, was a solution that served Indian interests? According to Cohen, in order to protect the economic and political interests of Indian tribes, the IRA had to establish self-governing socialist communities on Indian reservations. Ironically, the corporation—the symbol of capitalism—was his model.89 Quoting from the conclusions of the 1928 Meriam Report90 “that control from outside the social group secures only negative results,”91 Cohen suggested that “through the mechanism of municipal and quasi-municipal charters issued by the Secretary of the Interior to Indian tribes and ratified by

87. Draft of Address by Margold, supra note 77. 88. Id.; see also Memorandum: Law and Order on Indian Reservations, supra note 53. 89. On the corporation as a model for Progressive reform, see R. JEFFREY LUSTIG, CORPORATE LIBERALISM: THE ORIGINS OF MODERN AMERICAN POLITICAL THEORY, 18901920 (1982). For earlier calls to incorporate Indian tribes, including Collier’s plans, see RUSCO, supra note 4, at 94-176. Unlike Rusco, who argues that the Memorandum on Law and Order on Indian Reservations did not discuss the incorporation of Indian tribes, id. at 199, I argue that Cohen called for incorporation. Yet, his plans were informed not by earlier calls to incorporate Indian tribes, but by a tradition that emerged out of the Progressive fascination with political pluralism. See infra Part III.B. 90. INSTITUTE FOR GOV’T RESEARCH, supra note 74. 91. Memorandum: Law and Order on Indian Reservations, supra note 53.

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the Indians concerned,” Indian tribes would establish their selfgovernment.92 Cohen believed that the “incorporation” of Indian tribes would prevent future loss of Indian lands and allow the repurchase of reservation lands already lost to non-Indians. He further maintained that the government should provide Indians with the credit facilities they needed to develop their own properties and should encourage communal holding of lands and other resources that could not be efficiently used by individuals.93 Ultimately, the various political and economic powers, which were in 1934 invested in the Department of the Interior, were to be transferred to their true “owners”—the Indians.94 Through the establishment of “definite community ordinances” and community courts, as well as a special Federal Court of Indian Affairs, Cohen also expected an important shift toward legal stability and political advancement.95 When all that was secured, he predicted, the powers of the BIA to govern tribal affairs could be entirely abolished.96 Genuine socialist communities would then flourish on Indian reservations.97 As Part III.B demonstrates, Cohen’s critique of federal Indian policy and his understanding of the tasks of the Indian New Deal were informed by socialist pluralism. In his opinion, Indian tribes were a test case for the feasibility of his socialist pluralist program. Cohen hoped that the establishment of socialist communities on Indian reservations would be a first step toward the formation of similar communities across the nation. As Part III.B shows, in the 1930s, socialist pluralism reflected both Cohen’s political aspirations and his sense of identity as a Jewish American.

92. Id. 93. Draft of Address by Margold, supra note 77. 94. Id. 95. Memorandum: Law and Order on Indian Reservations, supra note 53; see also RUSCO, supra note 4, at 197-201. 96. Draft of Address by Margold, supra note 77. The implications were clear to Cohen. As he noted: The Indian Bureau should have no greater powers of government than the Weather Bureau. So far as I know, the Weather Bureau has never attempted to prevent the savage custom of clouds or to impose a model code of conduct upon the winds. I am sure the Indian Bureau could have contributed more to the happiness of its wards and to the richness of its American service if it had emulated the Weather Bureau’s illustrious example and restricted its functions to the fields of research and public service. Id. 97. Letter from Felix Cohen to Joseph Lash (May 27, 1934), Joseph P. Lash Papers, Box 51, Folder 4, Franklin D. Roosevelt Library.

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B. Dreams and Subtexts The eldest of the three children of Mary Ryshpan and Morris Raphael Cohen, the renowned Jewish philosopher of City College of New York, Felix Cohen graduated from CCNY in 1926 and pursued graduate studies both in the Department of Philosophy at Harvard University (Ph.D., 1929) and at Columbia Law School (LL.B., 1931). Immediately after graduating from law school, Cohen spent a year as a clerk for Justice Bernard Sheintag of the Supreme Court of New York. He then joined the law firm of Hays, Podell and Shulman in New York, a plaintiff’s firm that specialized in minority stockholders’ claims. In 1933, Nathan Margold, the newly appointed Solicitor of the Department of the Interior and a friend of the Cohen family, asked Felix to give up a year of private practice and join him in the Department of the Interior. Cohen accepted the offer and came in as an Assistant Solicitor. The planned year stretched to fourteen. In 1943, Cohen was promoted to the position of Associate Solicitor. Upon his resignation from government service in 1947, Cohen received the Distinguished Service Award. Six short years later he died at the age of forty-six.98 According to his widow, Lucy M. Kramer, Felix Cohen was “attracted to Indian law because he had a great feel for the land and the return to the simple life. The Indian way, as he read it as a child, had a tremendous attraction for him.”99 Indeed, like many middle-class men of his generation who shared a nostalgic love for nature and the natural,100 Cohen held a stereotypical, sentimental view of the “Indian.” Informed by it, Cohen believed that Indian reservations held a promise for a better national future, a future premised on group selfgovernment, centralized planning at the federal level, and protection for individual rights. As this Part shows, this combination of socialism and pluralism underlay Cohen’s socialist pluralist ideal. As a relative noted after his death, Cohen was “a doctrinaire socialist”; no one “could reason him out of it. He knew what was right.”101 Cohen’s Ph.D. dissertation advocated hedonism as the ethi98. See generally FELIX S. COHEN: A FIGHTER FOR JUSTICE (Theodore H. Haas ed., 1956) [hereinafter COHEN: A FIGHTER FOR JUSTICE]; Symposium, Felix S. Cohen, 9 RUTGERS L. REV. 348 (1954). See also Jill E. Martin, “A Year and A Spring of My Existence”: Felix S. Cohen and the Handbook of Federal Indian Law, 8 W. LEGAL HIST. 34 (1995); Remarks at a Testimonial Dinner for Felix Cohen, held in Washington D.C. (Jan. 17, 1948), Felix S. Cohen Papers, Box 92, Folder 1470, Yale Collection of Western Americana, Beinecke Library, Yale University [hereinafter Testimonial Dinner for Felix Cohen]. 99. Lucy Kramer Cohen et al., Felix Cohen and the Adoption of the IRA, in INDIAN SELF-RULE, supra note 23, at 70, 70. 100. See T.J. JACKSON LEARS, NO PLACE OF GRACE: ANTIMODERNISM AND THE TRANSFORMATION OF AMERICAN CULTURE, 1880-1920, at 144-49 (1984). 101. David Ryshpan, Interview by Joseph Lash, ca. 1965, Joseph P. Lash Papers, Box 50, Folder 9, Franklin D. Roosevelt Library; see also correspondence between Felix Cohen

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cal system befitting the political agenda of socialism.102 At Columbia Law School, he embraced the legal realist emphasis on the social and political character of law.103 If, as legal realists argued, law reflected politics, and particularly the hegemony of class, then, Cohen suggested, progressive reform required the substitution of radical for conservative politics—that is, socialism for capitalism.104 In the early 1930s, he published a series of essays in support of socialism.105 Shortly after joining the Department of the Interior, he wrote a letter to “Comrade” Norman Thomas—“a statement of the position that one Socialist finds himself in within the framework of a capitalist government.” “I feel that I owe you, whose judgment in these matters I most respect,” Cohen concluded his letter, “a statement of my reasons for thinking that I can serve the Socialist movement, for a while at least, in my present status.”106 Cohen’s reasons were simple. He believed that in the Department of the Interior, with colleagues who expressed “a pretty steadfast desire to protect challenged Indian rights against various forms of capitalist exploitation,”107 he could bring to fruition his program for reform. “One expects enthusiasm in the [National Recovery Administration] crowd, who expect they’re ushering in the millennium with golden trumpets,” Cohen wrote to Joseph Lash, “but to find it in a staid and stable department like the Interior is a shock.” “Even the and Joseph Lash, Joseph P. Lash Papers, Box 51, Folder 4, supra (discussing European socialism, municipal socialism, and affairs of the Socialist Party in America). 102. FELIX S. COHEN, ETHICAL SYSTEMS AND LEGAL IDEALS: AN ESSAY ON THE FOUNDATIONS OF LEGAL CRITICISM (1933) [hereinafter COHEN, ETHICAL SYSTEMS AND LEGAL IDEALS]. 103. See generally HORWITZ, supra note 2, at 169-92. 104. For an analysis of Cohen’s legal realism, see TSUK, supra note 16 (manuscript at pt. II, on file with author). 105. E.g., Felix S. Cohen, Politics and Economics, in SOCIALIST PLANNING AND A SOCIALIST PROGRAM: A SYMPOSIUM 69 (Harry W. Laidler ed., 1932); Felix S. Cohen, Socialism and the Myth of Legality, 4 AM. SOCIALIST Q. 3 (1935). 106. Letter from Felix Cohen to Norman Thomas (Nov. 8, 1933), supra note 86. Thomas replied with approval, emphasizing (a) the importance of “real service”; (b) the opportunity to train for administrative work, a training that could, in the future, help the Socialist Party; and (c) Cohen’s freedom in the Department of the Interior to implement his policies. “[Y]ou will resign when your freedom in this respect is denied,” Thomas concluded. Letter from Norman Thomas to Felix Cohen (Nov. 14, 1933), Joseph P. Lash Papers, Box 50, Folder 9, Franklin D. Roosevelt Library. 107. Letter from Felix Cohen to Norman Thomas (Nov. 8, 1933), supra note 86; see also Letter from Felix Cohen to Joseph Lash (Oct. 26, 1933), Joseph P. Lash Papers, Box 51, Folder 4, Franklin D. Roosevelt Library. Cohen wrote: I’m amazed at the amount of idealism floating around the place. Even old employees rally enthusiastically to the defense of the oppressed Indian. And the law librarian (who probably dates from Taft or Wilson) took me aside today and confidentially showed me Norman Thomas’s latest article in the World Tomorrow (I had asked for something much more prosaic). He was very much excited about this article on ending war—and also about an editorial tribute to Hillquit on the opposite page. “These are the pioneers,” he said. “After all, it’s the pioneers that count.”

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lawyers around the place,” he added in self-reflection, “who might be expected to inject a shot of cynicism and reaction, are amusedly or sympathetically tolerant.”108 Cohen’s program for reform was informed by earlier theories of political pluralism, particularly Harold Laski’s,109 and by the legal realists’ view of law as an apology for political (social and economic) oppression.110 Troubled by the rise of big corporations and the growing agitation of labor, Cohen’s early works analogized what he viewed as the sovereign status of the corporation to the status of labor unions. He urged the distribution of sovereignty to all associations, including labor unions, “trade unions, industrial unions, consumer organizations, farm organizations, semigovernmental corporations, and forms of associations that have not yet been invented.”111 Sovereignty was conditioned, however, upon a group’s willingness to be democratically governed and, if possible, to adopt an economic structure premised on communal holding of property. Cohen’s early works, in short, envisioned self-governing communities such as labor unions as the foundation of American democracy.112 Pluralists described a variety of principles according to which collective entities participated in the body politic of the nation. Many left the state devoid of any superior moral character or obliging force. The state was a “society of societies,” and individual allegiance to it was conditioned upon other—more immediate—allegiances to associations, the latter being the primary source of action and identification.113 In 1937, Louis Jaffe summarized this view, arguing that if groups were sovereign, they were also lawmaking entities and the state lost its absolute power as an exclusive producer of a singular system of national law.114 Cohen rejected such conclusions. As a socialist, he feared that without centralized planning, free competition between corporations and labor unions would benefit the former at the expense of the latter. He further predicted that the idea of a free market of groups would substitute the sovereignty of one group—the corporation—for

Id. 108. Letter from Felix Cohen to Joseph Lash (Oct. 26, 1933), supra note 107. Other New Dealers seem to have shared this feeling. E.g., RUSCO, supra note 4, at 183 (describing William Zimmerman’s vivid picture of “zest and fun” combined with “a sense of urgency” during the first months of the new administration). 109. See supra text accompanying notes 47-48. 110. See generally HORWITZ, supra note 2. 111. Felix S. Cohen, What City College Will Contribute to the Development of the Law, 2 THE BARRISTER, 4, 8 (1938). 112. See id.; see also works cited supra note 105. 113. GREGOR MCLENNAN, PLURALISM 33 (1995). 114. Louis L. Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201 (1937).

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the sovereignty of the state.115 Instead of reducing sovereignty to its parts, Cohen’s approach was premised on a strong commitment to governmental (socialist) planning. He believed that national planning was required not only to coordinate the plans of different selfgoverning associations, to balance production and consumption, and to distribute wealth and income, but also to protect fundamental individual rights.116 When he joined the New Deal, Cohen viewed Indian reservations as fertile fields for the cultivation of his socialist pluralism. The traditional tribal holding of land suggested to him that the Indian way of life was more akin to socialism than was the prevailing American way of life. Cohen’s critique of assimilation did not stem from concerns about the effects of assimilation on tribal culture. Rather, he was troubled by the disintegration of the economic structure of Indian tribes and the inculcation of capitalist individualism on Indian reservations. In Cohen’s opinion, in short, assimilation was an economic rather than a cultural phenomenon. He viewed Indian tribes as political groups, not ethnic or cultural ones; indeed, they were political groups whose economic structure (particularly their structure of property ownership) he hoped to appropriate for other political groups and for society in general. Accordingly, for a while after Cohen had joined the Department of the Interior to help draft the IRA, he used to comment that they were “making ‘Reds’ of the Indians.”117 In 1948, upon his resignation from government service, Cohen would testify to the biased origins of his initial approach to Indian affairs, admitting that he had no practical experience with Indian issues before he was appointed.118 Though an admirer of the wilderness who, like young men of his generation, loved hiking and canoeing, he 115. See Felix S. Cohen, Address before the Columbia Law School Liberal Club (1939), Joseph P. Lash Papers, Box 1, Folder 11, Franklin D. Roosevelt Library; see also Felix S. Cohen, Government and the Social Contract: Ethical Evaluations in the Law, Address Before the Eastern Law Students Conference, New York University School of Law (Mar. 7, 1936), in THE LEGAL CONSCIENCE, supra note 6, at 350, 362. 116. In the mid-1930s, together with a few friends, Cohen composed a Proposed Constitution for the Socialist Commonwealth of America. It promoted decentralized control of the means of production by democratically governed groups coordinated through governmental planning. It also protected individual rights. Felix S. Cohen et al., Proposed Constitution for the Socialist Commonwealth of America, Joseph P. Lash Papers, Franklin D. Roosevelt Library. 117. Ambrose Doskow, Interview by Joseph Lash, ca. 1965, Joseph P. Lash Papers, Box 51, Folder 1, Franklin D. Roosevelt Library. Certainly, such hopes were not welcomed by all. “Lucy and I decided,” Cohen wrote to Lash in 1934, “that it wouldn’t be fair to publish anything on the Indian situation that might give ammunition to those who have been denouncing our bill as communism and me as a member of the American Civil Liberties Union (which was a bad guess).” Letter from Felix Cohen to Joseph Lash (May 27, 1934), supra note 97. The bill to which Cohen refers in this letter is the IRA. 118. Cf. supra text accompanying notes 83-86.

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was a New Yorker, “from a city where there were no reclamation, public land, Indian or territorial problems,—problems of which [he] had never heard until [he] came to Washington.”119 I am “only a lawyer,” he wrote to anthropologist Alexander Goldenweiser two years after his appointment.120 Read carefully, such comments reveal more than sheer unfamiliarity. New York City certainly experienced its share of racial tensions. Yet, like many middle-class Progressives who came of age amidst heightening social conflict, Cohen was preoccupied with the struggle of labor against capital and believed that cultural and ethnic tensions would be resolved once disparities of wealth and income disappeared. His early writings dealt almost exclusively with economic issues. He easily saw that law was a tool of capitalism, but he failed to recognize its contribution to racial and cultural hegemony. The attitude of the Socialist Party, whose ranks he joined, toward race relations was indeed “hazy.”121 In 1936, Cohen and his friends composed a Proposed Constitution for the Socialist Commonwealth of America.122 Its third article promised that “the right to share in the work of society and to enjoy the product thereof shall not be denied or curtailed because of race, color, sex, religion or political or social beliefs.”123 Such fundamental individual rights were subjected, nonetheless, to an overarching socialist pluralist structure.124 What was the appeal of socialist pluralism? Clearly, Cohen found it intellectually and politically appropriate, but there was a stronger attraction. The combination of socialism and pluralism was a central aspect of Cohen’s own sense of identity as a Jewish American and, more important, as an heir to a secular, post-Enlightenment tradition of Judaism. Cohen’s paternal grandparents, Abraham Mordecai and Bessie Farfel Cohen, immigrated to America from Minsk, Russia in 1892. Like many first-generation immigrants, they remained Or119. Felix S. Cohen, Remarks, Testimonial Dinner for Felix Cohen, supra note 98, at 22 [hereinafter Cohen, Remarks at Testimonial Dinner]; see also Letter from Felix Cohen to Joseph Lash (Oct. 26, 1933), supra note 107 (describing an expected tour of Indian reservations, Cohen noted: “I was to have gone the day before yesterday, but I convinced my boss Margold that not knowing anything about the Department or the Indians I’d make a pretty lousy ambassador. But I’m learning.”). 120. Letter from Felix Cohen to Alexander Goldenweiser (April 15, 1936), Felix S. Cohen Papers, Box 1, Folder 7, Yale Collection of Western Americana, Beinecke Library, Yale University. 121. NATHAN IRVIN HUGGINS, HARLEM RENAISSANCE 50 (1971). John Buenker more pointedly noted that Socialists “shared the anti-black biases of white America generally, even though their animus took the form of neglect and ignorance more often than it did overt hostility.” John Buenker, The New Politics, in 1915, THE CULTURAL MOMENT: THE NEW POLITICS, THE NEW WOMAN, THE NEW PSYCHOLOGY, THE NEW ART, AND THE NEW THEATER IN AMERICA 15, 23 (Adele Heller & Lois Rudnick eds., 1991). 122. Cohen et al., supra note 116. 123. Id. 124. On socialist pluralism’s indifference to cultural interests, see infra Part III.D.

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thodox, if not in faith at least in ritual. Many second-generation immigrants, like Felix Cohen’s father, Morris Cohen, in turn, believed that religious Orthodoxy—which for centuries had required its adherents to separate themselves from the nations of the world— prevented them from gaining their freedom, and they zealously rejected it.125 Instead of embracing the patriarchal formalism of Orthodoxy, second- and third-generation immigrants turned to the prophetic tradition, whose cry against injustice and search for eternal truth appealed to Jews and Christians alike.126 This prophetic tradition had a strong affinity with the message of socialism—a socialism that rejected Orthodoxy, on the one hand, and celebrated solidarity and the improvement of economic conditions, on the other hand.127 For young Jewish men and women who were second- and thirdgeneration Americans, socialism thus provided a sense of inclusion, of belonging with others in a struggle against injustice. Pluralism offered a similar haven. Like other immigrants, Jewish Americans were torn between their desire to maintain a particular identity—to be ones—and their eagerness to become Americans— part of the many. Given the resemblance of Jewish and American cultural symbols, Jewish immigrants often experienced this tension more strongly; they had come to America in search of the “promisedland,” seeking to leave behind a history of segregation and discrimination. The possibilities that Americans saw in the frontier were embedded for Jewish immigrants and their children in the eastern shores of America. “I am . . . grateful,” Felix Cohen stated more than five decades after his father had come to the United States, “grateful for the opportunity to serve the country that welcomed my father and my grandparents out of slavery into freedom.”128 Having arrived in America at different historical moments and from various backgrounds, Jewish Americans attributed a variety of meanings to the confluence of Jewish and American dreams.129 Some called for assimilation. Others, like Horace Kallen, advocated cultural pluralism, arguing that America was to remain a nation composed of many cultural or ethnic nations.130 Between these two ends

125. See MORRIS R. COHEN, A DREAMER’S JOURNEY: THE AUTOBIOGRAPHY OF MORRIS R. COHEN 98-99 (1949) [hereinafter MORRIS COHEN, A DREAMER’S JOURNEY]. 126. William S. Berlin, The Roots of Jewish Political Thought in America 222-23 (1975) (unpublished Ph.D. dissertation, Rutgers University) (on file with University Microfilm International) (referring to Morris R. Cohen, Philosophy in Wartime, An Apologia, NEW REPUBLIC, Dec. 3, 1919, reprinted in MORRIS R. COHEN, THE FAITH OF A LIBERAL 84 (1946) [hereinafter MORRIS COHEN, THE FAITH OF A LIBERAL]). 127. See MORRIS COHEN, A DREAMER’S JOURNEY, supra note 125, at 98-99. 128. Cohen, Remarks at Testimonial Dinner, supra note 119, at 25. 129. ARTHUR A. GOREN, THE POLITICS AND PUBLIC CULTURE OF AMERICAN JEWS 13-14 (1999). 130. See supra Part II.A.

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were cosmopolitans, who viewed particular cultures, the Jewish culture being one example, as repositories for insights that when brought together would allow the development of a more comprehensive conception of national identity. Cosmopolitans did not suggest that cultural differences should be eradicated. They objected, however, to the preservation of such differences in a parochial form, as cultural pluralism could imply. Instead, they offered a more fluid understanding of cultural interaction and influence.131 Felix Cohen grew up in a household committed to cosmopolitanism. His father, Morris Cohen, espoused the universal ideals of the Enlightenment and mediated the tensions between separatism and assimilation by reconstructing the problems of minority groups as universal rather than particular. There were accordingly “many human problems, of which Jews, as human beings, [had] perhaps more than their share. But these problems, traced to their ultimate roots in reality, [were] also the problems of other minority groups, and [every] group of human beings [was] . . . a minority in one situation or another . . . .”132 For Morris, a democracy committed to social and economic equality was the universal solution to these problems. Although intellectually (or philosophically) a pluralist,133 Morris Cohen rejected all social forms of pluralism, warning against the possible oppressiveness of groups toward their members and toward society at large—oppressiveness that could potentially follow from either political or cultural pluralism. “We can draw more than one true picture of the social world, provided we do not claim that our picture is the true one,” he wrote in a critique of Laski’s political pluralism.134 Jews, he similarly argued in a critique of Kallen’s cultural pluralism, adopted the “very popular racial philosophy of history”—that is, “the constant tendency to emphasize the consciousness of race”—but “[i]nstead of the Teuton, it is the Jew that is the pure or superior race.”135 Felix Cohen was intrigued by cultural and political pluralism. To advocate any form of pluralism, however, would have been perceived

131. E.g., David A. Hollinger, Ethnic Diversity, Cosmopolitanism, and the Emergence of the American Liberal Intelligentsia, in IN THE AMERICAN PROVINCE: STUDIES IN THE HISTORY AND HISTORIOGRAPHY OF IDEAS 56 (1985). 132. MORRIS COHEN, A DREAMER’S JOURNEY, supra note 125, at 233. 133. Felix S. Cohen, Foreword to MORRIS R. COHEN, AMERICAN THOUGHT: A CRITICAL SKETCH 11 (1951). 134. Morris R. Cohen, Communal Ghosts and Other Perils in Social Philosophy, 16 J. PHIL. 673 (1919), reprinted in MORRIS R. COHEN, REASON AND NATURE: AN ESSAY ON THE MEANING OF SCIENTIFIC METHOD 396, 399 (1931). 135. Morris R. Cohen, Zionism: Tribalism or Liberalism?, NEW REPUBLIC, Mar. 19, 1919, reprinted in MORRIS COHEN, THE FAITH OF A LIBERAL, supra note 126, at 326, 328. The article was written as a critique of Zionism, which Morris Cohen associated with Kallen’s pluralism.

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as a rebellion against Morris’s intellectual authority. To adopt cultural pluralism would have, in addition, challenged Felix’s own sense of identity as a Jewish American. Devoted to his father, intellectually and personally, he could thus go only as far as adopting socialist pluralism, an approach that bridged Harold Laski’s political pluralism (by describing groups as sovereigns) and Morris Cohen’s critique of it (by endorsing centralized planning). While Felix Cohen never disavowed his commitment to centralized planning, his experiences in the Department of the Interior altered his vision. Ultimately, he accepted that all groups, including ethnic and religious groups, had the right to self-determination. Such an attitude, however, depended upon Cohen’s ability to celebrate his particular ethnic identity. In 1934, he was yet to recognize his Jewish identity as particular. Without this realization, it was safer to view Indian tribes as political— rather than racial or ethnic—groups.136 Such was Cohen’s assumption when he joined the Department of the Interior to help draft the IRA; hence his comment that they were “making ‘Reds’ of the Indians.”137 The goal of the IRA, as New Dealers described it, was to stop allotment and assimilation by delegating to Indian tribes more authority over their economic, social, and political affairs. Cohen’s advocacy of Indian self-government within prescribed limits and with the help of governmental authorities was radical in its proposed protection of Indian interests. Furthermore, Cohen maintained that the provisions of the IRA should not be imposed on Indian tribes; he believed that the charters should be tailored to the needs of each Indian community, and he was the first in the Department to suggest that Indians should be consulted during the legislative processes.138 His proposed 136. On the character of Indian tribes as ethnic or political groups, see generally Allison M. Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court’s Changing Vision, 55 U. PITT. L. REV. 1 (1993); and Patrick Macklem, Distributing Sovereignty: Indian Nations and Equality of Peoples, 45 STAN. L. REV. 1311 (1993). For an analysis of the unique status of Indians in American constitutional history, see David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. REV. 759 (1991). 137. See supra text accompanying note 117. 138. RUSCO, supra note 4, at 211. Indeed, Cohen noted that “[t]he feeling of the Indians towards white man’s law [was] often very much like the attitude we should [have taken] if [our] country were to come under the domination of some foreign nation of alien race, and our conduct subjected to the laws and regulations of a far-off sovereign and to a strange judicial procedure.” Memorandum: Law and Order on Indian Reservations, supra note 53; see also Draft of Address by Margold, supra note 77. Cohen wrote: The problem of securing a measure of freedom for the Indians of this country calls for more than the abolition of obsolete laws, it calls for more than the abolition of undemocratic methods of government. It calls for the active, constructive, cooperation of the Government with the Indians in building a form of organization through which the Individual Indian can protect and conserve his rights. Without such organization the Indian can enjoy freedom only as the favor of a benevolent administration.

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community courts were indeed meant to allow tribes to create their own laws.139 Cohen’s socialist beliefs, however, limited the scope of such pluralistic assumptions. Cohen did not merely wish to make “‘Reds’ of the Indians”; he believed that Indians were socialists. “The Indian,” he wrote— disclosing his biased position—was “too deficient in the white man’s business equipment, the white man’s love of work, and the white man’s selfishness to maintain his economic independence when he is turned loose, as an individual, to face the mighty forces of the modern economic world.”140 Accordingly, the task of the IRA was to acknowledge the socialist temperament of the Indians and to correct the damage caused by earlier attempts to eradicate it. Cohen’s proposals outlined ways to persuade, even force, Indians who wished to remain owners of individual property to turn over to their communities the lands they owned.141 Cohen also believed that unequal distribution of rights to land had to be eliminated “if every member of the community [was] to be granted some opportunity to wrest a livelihood from the limited resources of the community.”142 After all, as self-governing socialist communities, Indian tribes were to provide a model that other groups could adopt. “Here in the center of the Laguana project,” Cohen reported from Mexico, “one sees a true social revolution carried out without cruelty or intolerance, and damned efficiently.”143 Cohen genuinely advocated Indian self-government. Knowing little about Indian cultures and customs, he interpreted the interests of the Indians through his frames of reference. For one thing, when Cohen joined the Department of the Interior, he believed that the policy of allotment had destroyed tribal governments, turning Indian reservations in the eyes of the law (without an authority to enforce laws) into “almost a no-man’s land.”144 The establishment of modern Id. Cohen recruited his wife Lucy M. Kramer as an unpaid volunteer to “keep track of how various Indian tribes were reacting to the specific tentative provisions of the WheelerHoward bill.” Kramer-Cohen et al., supra note 99, at 71. 139. See generally RUSCO, supra note 4, at 197-201. 140. Draft of Address by Margold, supra note 77. 141. RUSCO, supra note 4, at 197-98. 142. Id. at 198. While Cohen realized that stating such an objective was politically inadvisable, he also thought it was legally unnecessary, since Indian communities would have to arrive at such a policy by “reasoning and bargaining, no matter what the statute provides.” Id. 143. Postcard from Felix Cohen to Joseph Lash (August 5, 1934) Joseph P. Lash Papers, Box 51, Folder 4, Franklin D. Roosevelt Library. Interestingly, Cohen was so confident that the rest of the nation would follow the model set on Indian reservations that he neglected to note the problems that might be associated with the creation of socialist communities in the midst of a society committed to the values of capitalism. 144. Draft of Address by Margold, supra note 77; see also Memorandum: Law and Order on Indian Reservations, supra note 53. As Cohen explained, according to the holding in Worcester v. Georgia, 31 U.S. 515 (1832)—the case that recognized Indian tribes as sepa-

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governments, modeled after municipal and housing corporations145 and subject to the supervision of the Department, was thus the only alternative to assimilation. Furthermore, while Cohen recognized the importance of receiving information from the reservations with respect to the IRA, he maintained that consulting the Indians was vital “to awaken sympathetic understanding among those most directly concerned with this policy.”146 Critical of earlier attempts to impose capitalist individualism on Indian reservations,147 Cohen initially failed to recognize that the structure he preferred was a cultural product, too, and not necessarily suitable for the customs and traditions of Indian tribes. Ironically, Cohen, who as an intellectual celebrated pluralism and as a Jewish American rejected assimilation, hoped to create a single economic, if not also political, structure on Indian reservations. His colleagues were similarly at fault. Whether or not they drew on theories of pluralism, New Dealers sought to protect the autonomy of Indian tribes without segregating them from the mainstream of American life, however broadly defined. Their solution was thus a problematic mixture: they relied on American structures of government to protect Indian ways of life and assumed that uniform political and economic structures—self-government and communal holding of lands—would promote the interests of the Indians. Neither the

rate nations—the states had no constitutional power to regulate the conduct of tribal Indians or the conduct of their own citizens toward such Indians where the acts in question occurred in Indian country, that is, restricted individual lands as well as unallotted tribal lands. Memorandum: Law and Order on Indian Reservations, supra note 53. While some historians have recently argued that the policy of allotment did not destroy tribal governments on a wholesale basis, New Dealers in general seem to have believed that the policy of allotment had hastened the disintegration of tribal governments and left no machinery of justice on the reservations. Cf. RUSCO, supra note 4, at 56-61. Though several criminal laws applied to these territories, Cohen suggested that they were, at most, sporadic and irregular. An Indian reservation, Cohen noted, was still in 1933 “as it had been a century earlier, a happy hunting ground for criminals, provided only [that] they refrained from seditious activities.” Draft of Address by Margold, supra note 77. Furthermore, as Cohen explained, neither Indians nor non-Indians were entitled to the ordinary constitutional civil liberties while on Indian reservations. Federal laws authorized the Commissioner of Indian Affairs to summarily remove from any reservation, “with such force as might be necessary,” any person whose presence within the limits of an Indian reservation the Commissioner viewed as “detrimental to the peace and welfare of the Indians.” Id.; see also Memorandum: Law and Order on Indian Reservations, supra note 53. 145. See Bibliography for use in drafting Tribal Constitutions, Felix S. Cohen Papers, Box 6, Folder 77, Yale Collection of Western Americana, Beinecke Library, Yale University. 146. RUSCO, supra note 4, at 211 (quoting Cohen in a memorandum to Collier). 147. For Cohen’s view of attempts to impose policies on Indian reservations, see, for example, Draft of Letter from Felix Cohen to Thomas Dignan, Felix S. Cohen Papers, Box 7, Folder 95, Yale Collection of Western Americana, Beinecke Library, Yale University. (“The matter of working out a charter of self-government is something which the Indians must do themselves, if the bill is passed, with the aid of private attorneys in whom they have confidence, and of officials of the Interior Department.”).

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liberals nor the socialists among the New Dealers fully realized the situated nature of their frames of reference.148 Some of the gaps that were left in the IRA due to such misconceptions are examined in Part III.C after a brief description of the Act. Daily encounters with Indian tribes during the first months of the New Deal taught Cohen the importance and diversity of tribal interests. As Part III.D shows, this led him to reassess his socialist pluralist ideal. With reevaluation came the realization that diverse interests were not contained within one value system but rather spread over a variety of value systems—hence also the inappropriateness of universal solutions that focused on the mediation of conflicts within one value system. Such an understanding laid the foundation for Cohen’s systematic pluralism, which emphasized the need to expand the American legal system, not merely to accommodate different interests within one system, but also to encompass the value systems or ideals in which such interests were grounded. Part IV will explicate Cohen’s systematic pluralism and its relationship to the Handbook. C. Realism and Transformation The initial draft of the IRA was introduced in mid-February 1934 by Senator Burton K. Wheeler of Montana and Representative Edgar Howard of Nebraska, chairmen, respectively, of the Senate and House Committees on Indian Affairs. It was a long and complex bill; it covered forty-eight pages, and was divided into four titles: Indian self-government, education for Indians, lands, and the court of Indian affairs.149 148. Cf. James P. Boggs, NEPA in the Domain of Federal Indian Policy: Social Knowledge and the Negotiation of Meaning, 19 B.C. ENVTL. AFF. L. REV. 31 (1991). Boggs notes: [M]ost scholars regard the Indian Reorganization Act (IRA) of 1934 as inaugurating a distinctly new policy—promoting the reconstitution of tribal governments—in reaction to the excesses of the allotment period. One may argue, however, that the IRA merely signaled a shift from the individualist mode of assimilation that drove allotment to a corporatist mode that accorded with the emergence of the corporation in everyday life. The IRA undoubtedly was a reaction to the devastation of allotment. Nevertheless, it reflected assimilation in a different guise rather than a new-found respect for Native American culture. Id. at 59. 149. TAYLOR, supra note 56, at 19-21. The first title, Indian Self Government, declared the right of tribal societies to control their lives by establishing their own governments. It authorized the Secretary of the Interior to grant “powers of local self-government and the right of incorporation for economic purposes upon petition of one-fourth of the adult Indians residing on a reservation and ratification of the charter by three-fifths of the residents.” Id. at 20. Such local governments could then establish and enforce ordinances, “contract with the federal government for public services,” regulate membership, and “take over other administrative functions deemed suitable by the secretary of the interior.” Id. The title left room for the institution of tribal constitutions, which would be the task of the Department in the following years. In general, the first title aimed at transforming infor-

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The draft expressed the general view that Congress should abandon the breaking down of tribal organization and the assimilation of individual Indians as the objectives of its Indian policy and should instead encourage tribal self-government.150 New Dealers disagreed, however, on the structure of government that Indian tribes should adopt. Some believed that the Indians would choose modern (American-style) constitutions; others hoped that they would follow their tribal traditions.151 The draft was thus rather enabling when discussing the tribes’ internal powers. However, all seemed to agree on an economic structure premised on communal holding of lands. The draft was thus constraining with respect to the tribes’ economic powers. Land classification, purchase of lands, transfer of titles, leasing of lands—in other words, the external scheme within which selfgovernment (or, for Cohen, socialist pluralism) was allowed—were to be approved by the Secretary of the Interior.152 Overall, New Dealers wanted to maintain some form of control (or guardianship) over tribal governments so that they could ensure the careful reconstruction of destroyed self-governance capacities.153

mal Indian processes into formal—and western—institutions, which the federal government would—and could—respect. The second title, Special Education for Indians, announced that educational policy would emphasize the value of Indian culture. Government schools would aim to bring to Indian communities a sense of their own past and values. The title thus created a fund for formal education of Indians and different measures to “restore traditional Indian cultures.” Id. at 21. The title also provided for training for Indians “to take over service positions in the bureau.” Id. The third and most controversial title prohibited future land allotments and restored to tribal ownership those lands which had been declared surplus under the respective allotment acts but never settled. All lands allotted under the Dawes Act were to be classified into productive units. “Those allotments could then be exchanged for shares in the tribal corporation, while heirship lands would be ceded to the community and the individual heirs compensated for improvements.” Id. at 20. The Department of the Interior was also empowered to purchase lands for the tribes. It could spend up to $2 million annually for land purchases for existing reservations and for the creation of new colonies for landless Indians. Id. at 20-21. The fourth title called for the establishment of a Court of Indian Affairs that would consist of seven justices “appointed by the president with the consent of the Senate.” PHILP, supra note 52, at 143. The Court was to have authority over all legal controversies affecting Indian tribes. Id. It was to “protect the Indian community . . . against unnecessary obstruction and delay in carrying out of the program contemplated in this bill . . . [and afford] effective protection of the rights of individuals in the administration of the program.” TAYLOR, supra note 56, at 21. 150. E.g., Donald Craig Mitchell, Alaska v. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts, 14 ALASKA L. REV. 353, 363-64 (1997). 151. Cohen seems to have initially preferred modern constitutions. See supra Parts III.A-B. Commissioner Collier, on the other hand, favored traditional ones. For Collier’s position, see Mark A. Michaels, Indigenous Ethics and Alien Laws: Native Traditions and the United States Legal System, 66 FORDHAM L. REV. 1565, 1578 (1998). See also DELORIA, supra note 23, at 187-206. 152. See TAYLOR, supra note 56, at 19-21, 30. 153. See generally Outline of Bill on Indian Self-Government (ca. 1934), Felix S. Cohen Papers, Box 9, Folder 120, Yale Collection of Western Americana, Beinecke Library, Yale University. For Collier’s vision, see Johnson & Hamilton, supra note 55, at 1258-59.

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Commissioner Collier assumed that Congress would quickly approve the bill, if only because it was endorsed by the Roosevelt administration. To his dismay, the passage was not smooth. In addition to their objection to the complexity and length of the initial draft, most members of the House and Senate Committees favored assimilation. Another factor affecting their response was apparent Indian opposition. New Dealers were thus forced to appeal to the Indians. In an unprecedented move, they summoned Indian congresses around the country where they explained the bill and listened to suggestions.154 A second draft followed, leaving intact the major elements of the original draft, but including thirty amendments initiated at these congresses.155 Among other things, these amendments abandoned the forced transfer of allotted lands from living individuals to tribal control and modified the provision for transferring such lands to the tribe upon the death of the allottee. They further prohibited “the disposition of any community or tribal assets without the consent of the tribe or community,” and specifically included water rights under the protection of the Act.156 Finally, the Indians insisted on including a provision that would prevent “the possibility of having 50 active voters out of a thousand eligible adults bind the entire tribe.”157 The second bill did not fare better than the initial draft, forcing Collier to accept a new and drastically abbreviated bill, which would become the IRA. It included most of the original ideas with respect to the termination of allotment, tribal incorporation and organization, and employment of Indians by the BIA.158 To help tribes with the drafting of constitutions, bylaws, and charters of incorporation for business purposes, an annual appropriation of $250,000 was authorized. A $10 million revolving credit fund was further created to support economic development on reservations. In addition, the Indian Civilian Conservation Corps helped to bring Indians under many of the New Deal relief programs; two policy statements guaranteed Indian religious freedom; states where Indians had enrolled in public schools were given federal funds; and an Indian Arts and Crafts Board was established.159 On the other hand, the ability of the tribes and the Department of the Interior to acquire allotted lands in order to consolidate was notably diluted. Tribes were also denied the power to take over heirship

154. RUSCO, supra note 4, at 245-49; see also PHILP, supra note 52, at 145-54. 155. RUSCO, supra note 4, at 248. 156. Id. at 248 (quoting the House Committee, Readjustment of Indian Affairs (1934)). 157. Id. at 249 (quoting the House Committee, Readjustment of Indian Affairs (1934)). See generally id. at 220-49. 158. TAYLOR, supra note 56, at 27-28. 159. Id.; see also Philp, supra note 82, at 17-18; DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 229-30.

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lands. Later, Collier would claim that losing those features was “a major disaster to the Indians, the Indian Service, and the program.”160 Furthermore, the final form of the IRA called for a referendum to be held on reservations included under the Act within one year (subsequently extended to two years) to determine whether or not the tribe chose to come under the provisions of the Act. Tribes that rejected the IRA would remain under the BIA’s direct control. Tribes that accepted it could then prepare a constitution, to be ratified by “a majority of the Indians on a given reservation and officially recognized members of the tribe.”161 The establishment of a tribal council and a charter of incorporation would follow. The time limit of the referenda requirement put an undue burden both on the Indians and on the Department, and produced mistakes that might have otherwise been avoided.162 New Dealers rushed to administer reorganization. According to one report, during the first year of the IRA “172 [Indian groups] with a total population of 132,000 accepted reorganization and 73 with a total population of 63,000 rejected it.”163 The most significant rejection occurred on the Navajo Reservation in Arizona and New Mexico.164 After the initial referenda were administered to meet the twoyear deadline, New Dealers started drafting constitutions for the different tribes.165 Cohen was the leading architect of these constitutions. A model constitution was prepared and teams were sent to the reservations to discuss general and particular provisions with the Indians.166 Some tribes chose to follow their own traditions; others 160. TAYLOR, supra note 56, at 28 (quoting JOHN COLLIER, THE INDIANS OF THE AMERICAS 265 (1947)). 161. Id. 162. Id. at 27-28; see also PHILP, supra note 52, at 158-60. 163. TAYLOR, supra note 56, at 32. Numbers vary in different reports, yet the pattern seems accurate. But see Russel Lawrence Barsh, Another Look at Reorganization: When Will Tribes Have a Choice?, INDIAN TRUTH, Oct. 1982, at 4. 164. While the BIA attributed the defeat to campaigns carried on by special interest groups, the vote probably reflected the bitter controversy between the BIA and the Navajos over stock reduction, a controversy that coincided with the referendum. TAYLOR, supra note 56, at 33. 165. The basic administrative framework was complete by the end of 1936. Indian groups were enrolled in the program, formal procedures for tribal organization were developed, and units were created within the Department to oversee the process and to coordinate the various political and economic programs for the Indians. The Indian Organization Division was such a unit. It supervised the preparation of constitutions and reviewed the operations of the new established councils. In addition to lawyers, Collier brought in anthropologists from the Smithsonian Institution’s Bureau of American Ethnology and from universities. In 1936, “an Applied Anthropology Staff was established within the bureau under H. Scudder Mekeel, formerly of Harvard University.” Id. at 36-38. 166. In his recent analysis of the legislative process of the IRA, Elmer Rusco noted that “nothing in the IRA was designed to impose any particular structure of government on an Indian society.” RUSCO, supra note 4, at 296. While the IRA on its face did not adopt one structure, as this Article suggests, individual policymakers held certain sets of beliefs that determined their vision for the IRA and how they went about administering it. For model

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were willing to substitute a modern constitution for their Indian antecedents. As Graham Taylor has concluded, “[b]y the middle of 1937, sixty-five tribes had established constitutions and thirty-two had also ratified corporate charters. Altogether, between 1936 and 1945, ninety-three Indian groups set up tribal governments, and seventyfour of them had business charters. All but seven of the tribes were organized before 1938, indicating the intensity of the effort.”167 In general, the IRA fell short of most of its political and economic aims. It stopped allotment, but since the transfer of lands from individual to tribal ownership was voluntary, and as appropriations for land consolidation and purchases were restricted, the federal government had a relatively limited degree of control over Indian economic resources. Since a time limit was imposed on the referenda, many Indians were rushed—maybe even coerced168—into “a system of organization with which they were unfamiliar.”169 Others found their powers limited.170 Even Collier concluded in retrospect: “We had pressed the democratic philosophy not too far; we had not pressed it far enough nor skillfully enough.”171 Political compromises aside, the failure of the IRA to fulfill its aims also reflected a lack of clear guidelines. In particular, the IRA did not specify whether tribal governments were to follow Indian traditions or modern American law. As I have indicated, this omission mirrored conflicting views within the Department about whether the tribes should adopt modern constitutions, or follow their own, often unwritten, tribal traditions. Knowing very little about Indian ways of life, both “modernists” and “traditionalists” seem to have agreed that Indian tribes, no matter what governmental structure they chose, would adopt a modern economic structure. Such assumptions often impeded the efforts of tribes that chose to use traditional tribal council systems to develop their economic resources. Tribes that chose to write modern constitutions did not fare better. As Robert Clinton has recently noted, “[t]ribal constitutions were often drafted from models provided by the BIA whose bureaucratic hold on the governance of Indian country was directly threatened by constitution and bylaws, see Felix S. Cohen Papers, Box 7, Folder 100, Yale Collection of Western Americana, Beinecke Library, Yale University. 167. TAYLOR, supra note 56, at 36; see also id. at 30-36. 168. Floyd A. O’Neil, The Indian New Deal: An Overview, in INDIAN SELF-RULE, supra note 23, at 30, 42. 169. TAYLOR, supra note 56, at 31. 170. See, e.g., Barsh, supra note 163. 171. TAYLOR, supra note 56, at 31 (quoting JOHN COLLIER, FROM EVERY ZENITH: A MEMOIR 224 (1962)). For a critical evaluation of Collier’s role in forcing Indian tribes to come under the IRA, see Rebecca L. Robbins, Self-Determination and Subordination: The Past, Present, and Future of American Indian Governance, in THE STATE OF NATIVE AMERICA, supra note 23, at 87, 95-98.

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the emergence of strong, autonomous Indian tribal governments.”172 Determined “to keep their jobs and their power,” BIA bureaucrats thus “drafted into many tribal constitutions provisions requiring most or all tribal law making or resource management decisions to be directly approved by the Secretary of the Interior (through the BIA, of course).”173 Cohen wished to do away with the BIA; still, the failures of the IRA should not be blamed only on BIA bureaucrats. The pluralist Cohen, too, had initially opted for American-style constitutions, believing that the structure of municipal corporations could easily be adapted to protect the interests of Indian tribes. Finally, by forcing tribes to choose between American-style constitutions and their own, the IRA did not only undermine traditional forms of Indian government. It also helped to intensify divisions between traditional and more assimilated factions on many reservations, erecting another obstacle on the tribes’ path to self-government and economic independence.174 In short, not only congressional opposition, but also the New Dealers’ unfamiliarity with Indian cultures, hindered the fulfillment of the radical potential of the IRA—that is, the creation of truly sovereign communities on Indian reservations (or, for Cohen, the fulfillment of socialist pluralism). One compromise would become advantageous for Indian tribes. Since members of the Senate and House Committees on Indian Affairs had no intention of granting the governing bodies of Indian tribes the sovereign powers enumerated in the initial draft, Collier was forced to negotiate language that was included in section 16 of the ultimate bill.175 In its final form, section 16 admitted that the 172. Clinton, supra note 55, at 104. 173. Id. at 105. 174. These divisions persist to this day and are at the root of many intra-Indian conflicts. Michaels, supra note 151, at 1578. Russel Barsh has similarly claimed that “[a]rguably, tribal governments have grown stronger and somewhat more independent since 1934, but decision-making processes have changed little. Rooted in problems of social control rather than the promotion of families, justice, or equity, tribal governments are ideal vehicles for self-serving elites and ‘strongmen.’” Russel Lawrence Barsh, The Challenge of Indigenous Self-Determination, 26 U. MICH. J.L. REFORM 277, 302 (1993). 175. Of particular concern to Congress was section 4 of the title on Indian SelfGovernment. Section 2 of this title authorized the Secretary of the Interior to issue charters that would grant to any Indian community any or all of the powers of government fitting its experience, capacities, and desires. Section 4 of the title authorized the Secretary to grant to any community chartered under the Act any or all of ten enumerated governmental powers. Mitchell, supra note 150, at 394 n.176, 395. A brief comparison between the initial bill and the final bill reflects these congressional concerns. Cohen and Collier viewed the IRA as a means for tribes to assert full control over their reservations. The final version of the bill reflected, however, congressional intent to limit tribal jurisdiction to consenting members. Furthermore, the original bill contemplated that where an extensive consolidation of Indian land and population existed, tribes would have civil and criminal jurisdiction over members and nonmembers. The final version of the bill, however, as Chairman Wheeler of the Committee on Indian Affairs observed, eliminated all the compulsory provisions, especially the right of Indian communities to make laws on their reser-

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governing bodies of tribes that would be issued IRA constitutions possessed not only the limited powers specified in the Act, but also “all powers vested in any Indian tribe or tribal council by existing law.”176 Members of the Senate and House Committees clearly did not realize that they were building a foundation for a more radical understanding of Indian self-government. On October 25, 1934, four months after the IRA was enacted, Solicitor Margold published an opinion titled Powers of Indian Tribes.177 Likely drafted by Cohen, the opinion detailed the powers that were “vested in the various Indian tribes under existing law.”178 As Cohen later noted, Powers of Indian Tribes adopted the theory that “those powers which [were] lawfully vested in an Indian tribe [were] not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which [had] never been extinguished.”179 Tribes, in short, already held sovereign powers and “needed only to surrender those powers, or at least some of them, to the tribal corporations authorized by the IRA.”180 Some of these powers were historical in origin; some could be found in treaty provisions or negotiations. Other powers were simply what Cohen and Margold believed were rights that Indian tribes had accrued since their basic sovereignty had been established. According to Powers of Indian Tribes, only a previous act of Congress limiting tribal sovereignty could abridge tribes’ inherent sovereignty. Yet, since Congress had never presumed that tribes had these sovereign powers, it was vations. Gould, supra note 55, at 832-33 (referring to Bradley B. Furber, Two Promises, Two Propositions: The Wheeler-Howard Act as a Reconciliation of the Indian Law Civil War, 14 U. PUGET SOUND L. REV. 211, 241-50 (1991)). 176. Indian Reorganization Act, ch. 576, § 16, 48 Stat. 984, 987 (1934) (codified as amended at 25 U.S.C. § 476); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 224-25; Mitchell, supra note 150, at 394-95 n.176. 177. 55 Interior Dec. 14 (1934). 178. Id. at 15. The powers included the following: power to determine the tribe’s form of government, id.; power to determine membership (“subject to supervision of the Secretary of the Interior where rights to Federal property are involved”), id.; power to regulate domestic relations of its members, id.; power to prescribe rules of inheritance “[e]xcept with respect to allotted lands,” id.; “power to tax members of the tribe and nonmembers accepting privileges of trade or residence, to which taxes may be attached as conditions,” id.; power to remove nonmembers from the reservation, id.; power to regulate tribal property, except as restricted by acts of Congress, id.; power to administer justice “except as criminal or civil jurisdiction has been transferred by statute to Federal or State courts”, id. at 16; and power to prescribe duties of federal employees where powers of supervision are delegated to them, id. Though this was an impressive list of inherent powers (especially given congressional opposition), since New Dealers in 1934 knew very little about Indian laws and customs, the powers enumerated were still incomplete. Deloria, supra note 21, at 97576. 179. HANDBOOK, supra note 13, at 122; see also RUSCO, supra note 4, at 5; infra Part IV. 180. VINE DELORIA JR. & CLIFFORD M. LYTLE, THE NATIONS WITHIN: THE PAST AND FUTURE OF AMERICAN INDIAN SOVEREIGNTY 158 (1984); see also Mitchell, supra note 150, at 394-95 n.176.

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unlikely that they were limited.181 Powers of Indian Tribes thus turned congressional intent on its head. The lawyers of the Department of the Interior simply announced that the powers that Congress refused to grant to Indian tribes were “inherent from the very beginning.”182 Not only had they succeeded in protecting these powers from congressional intervention; under the interpretation provided by Powers of Indian Tribes, such powers were inherent, not delegated.183 Contemporary scholars have criticized Powers of Indian Tribes for embracing the “fiction of conquest,” and thus dispelling “any lingering hopes that congressional intervention in tribes’ domestic affairs could be limited by treaties.”184 From a pluralistic perspective, especially in relation to Cohen’s changing interpretations of pluralism, however, Powers of Indian Tribes is an important transitional statement. Socialist pluralism was one model for devising a plural polity. It envisioned the American legal system as accommodating the interests of multiple sovereign groups. It failed on Indian reservations because it was not always adaptable to the diverse tribal traditions. It sought to protect the political and economic interests of the Indians without taking full cognizance of the cultural and social systems in which such interests were formed, or of the unique status of these systems in American law. Daily interactions with Indian tribes were informative. Powers of Indian Tribes reflected the New Dealers’ growing attentiveness to the history of Indian tribes and the history of their relationship with the federal government. More broadly, it indicated an admission, albeit limited in scope, that Indian tribes had unique legal and political systems that federal law had to accommodate. Powers of Indian Tribes illustrated a transformation in Cohen’s view, which he more elaborately articulated in his writings during the late 1930s. Part III.D examines this change. It explores how Cohen came to see Indian tribes not only as political but also as cultural groups. Cohen was the first to recognize the problems associated with his socialist pluralist model, particularly its universalist assumptions. This recognition was reflected first in his turn away

181. DELORIA & LYTLE, supra note 180, at 159; see also 55 Interior Dec. 14 (1934). 182. DELORIA & LYTLE, supra note 180, at 160; see also Mitchell, supra note 150, at 394-95 n.176. 183. However, as Deloria and Lytle note, “it would be another generation before Indian tribes would understand the difference and begin to talk in the proper terms about their status.” DELORIA & LYTLE, supra note 180, at 160. Deloria, Lytle, and Mitchell suggest that Collier sought to hide the real scope of his revolutionary approach to Indian sovereignty. “Since few people could understand the difference between inherent and delegated powers, and no one really cared to understand that distinction, the substance of Collier’s revolution went unchallenged.” Id. at 169; see also Mitchell, supra note 150, at 394-95 n.176. For a more critical evaluation of Collier’s position, see Robbins, supra note 171. 184. BARSH & HENDERSON, supra note 29, at 112.

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from economics and toward anthropology, and then, in his reinterpretation of pluralism. Cohen’s socialist pluralism assumed that federal law could accommodate, with one structure, the interests of a variety of groups. It neglected to notice that particular interests were grounded in distinct legal and political systems. In the late 1930s, Cohen suggested that a plural polity required a more inclusive legal ideal, one that would not only seek to accommodate different interests, but that would, more broadly, aim to embrace the diverse value systems in which such interests were formed. Such was his ideal of systematic pluralism. Part IV will explicate its meaning and examine how it influenced Cohen’s work on the Handbook. D. The Importance of Culture: The IRA in Retrospect Many factors, including political compromises and “a certain blindness,” contributed to the failures of the IRA.185 Perceptive as the New Dealers might have been, they sought reorganization on universal foundations. Even Cohen, who in his writings admitted the relativity of frames of reference186 and celebrated pluralism, stumbled when he attempted to draft policy outside his familiar context. New Dealers were willing to let Indian tribes run their internal affairs, but the system they devised was an American system. Even when 185. I use the term “blindness” to allude to a late-nineteenth-century speech in which William James noted that we were all afflicted by blindness “in regard to the feelings of creatures and people different from ourselves.” William James, On A Certain Blindness in Human Beings, Speech, in WILLIAM JAMES, TALKS TO TEACHERS ON PSYCHOLOGY AND TO STUDENTS ON SOME OF LIFE’S IDEALS (1899). The speech—written, as George Cotkin showed, as a critique of imperialism, especially American policy toward the Philippines— revolved around two forms of blindness: blindness toward differences and blindness toward similarities. James wished his audience to realize how blind they were to ways of life different from their own; yet, he also wanted his audience to recognize that by focusing on external differences they were rendered blind to inner similarities. For James, individual will indicated the possibility of overcoming blindness, and, more important, the possibility of unity within diversity. I allude to On a Certain Blindness in Human Beings because it expressed the core of James’s pluralist philosophy. James’s two versions of blindness corresponded to two central themes in his pluralist philosophy. On the one hand, James’s pluralism celebrated diverse ways of life, each blind to the other. Recognizing the blindness of individuals and groups toward differently situated others, James suggested that distinct ways of life should be allowed to coexist, each within its separate sphere. On the other hand, James’s pluralism also stressed the possibility of unity. Focusing on the ability of individuals to imagine (or know) themselves as the other, James urged the transcendence of boundaries. James was aware of the difficulty of adjudicating conflicting inner realities, but he believed that the possibility of better relationships between individuals lay in their ability to sympathize with the inner realities of individuals different from themselves. See generally GEORGE COTKIN, WILLIAM JAMES, PUBLIC PHILOSOPHER 139-45 (1990); Anthony Skillen, William James, “A Certain Blindness” and an Uncertain Pluralism, in PHILOSOPHY AND PLURALISM 33 (David Archard ed., Royal Inst. Philosophy Supp. No. 40, 1996). For James’s place in the history of pluralism, see supra Part II.A. 186. See generally Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935) [hereinafter Cohen, Transcendental Nonsense], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 33.

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recognizing particular differences, they viewed the general framework in universal, absolute terms. They were critical of American institutions, but the alternatives they devised were no less American. One of the major drawbacks of the IRA was the New Dealers’ naïveté with respect to Indian cultures, customs, and laws. Cohen, for one, came to the New Deal believing that racial and ethnic tensions would disappear once class conflict was resolved. His daily encounters with Indian tribes, particularly, I suspect, his study of tribal constitutions in preparation for writing new ones,187 taught him otherwise. As early as 1935, Cohen admitted that American law represented not only the force of the state utilized by a dominant capitalist class, but also the force of the state utilized for the hegemony of culture.188 Given the multiplicity of social (economic, political, cultural) interests, he wrote, the multiple meanings of legal concepts were tools in the hands of powerful lawmaking agencies. They gave a concept one meaning when applied to one interest group, and another when applied to a different group.189 Recognizing, with pluralists, the incompleteness of human knowledge,190 Cohen thus urged the understanding of legal reality, and hence the definition of legal rules, as reflecting a variety of interrelated particular and collective interests.191 Such a definition required, of course, a better comprehension of these interests. In the hope of redefining legal concepts according to a complex array of individual and collective experiences, Cohen turned to the social sciences.192 In 1937, he published an article that he considered to 187. See generally Felix S. Cohen, Indian Self-Government, 5 AM. INDIAN 3 (1949) [hereinafter Cohen, Indian Self-Government], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 305, 306-7. See also Felix S. Cohen Papers, Box 7, Folder 100, Yale Collection of Western Americana, Beinecke Library, Yale University. 188. See Cohen, Transcendental Nonsense, supra note 186. 189. See id. 190. See supra text accompanying notes 37-46. 191. See generally Cohen, Transcendental Nonsense, supra note 186; Felix S. Cohen, The Problems of a Functional Jurisprudence, 1 MOD. L. REV. 5 (1937), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 77. For an examination of the importance of Transcendental Nonsense to the history both of pluralism and of legal realism, see TSUK, supra note 16 (manuscript at pt. II, on file with author). 192. The turn to the social sciences was common among legal realists, though they differed in what they hoped to derive from the social sciences. Cohen sought to combine the methods of inquiry of the social sciences with the discourses of moral and political philosophy in order to make law reflect better—that is, more Progressive—politics. Many, however, turned to the social sciences in an attempt to create a legal system that would mirror social relations and would thus be less politically biased than the classical legal model. Some believed that the functions and consequences of legal rules would be better understood through detailed studies of social facts. Others wanted law to mirror social customs. Still others urged the deferment of value questions, and the prioritization of value-free empirical studies of the determinants, administration, and effects of legal decisions and rules. Informed by their concerns about economic and social problems, most legal realists turned to economics and sociology. Only a few relied on anthropology (including, interest-

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be “a list of jobs that an administrator would like to see done on the scientific [anthropological] front”; it was a “‘help wanted’ advertisement.”193 Already in 1933, the Department of the Interior, under Collier’s leadership, sought information from anthropologists, particularly with respect to the structure of tribal governments. Cohen found their advice “extremely useful.”194 “I believe,” he wrote, “that when we are finally in a position to move ahead with our legislative program on the different Indian jurisdictions they will prove invaluable, and should be made the basis of follow up inquiries.”195 In 1937, once the basic IRA structure was in place, Cohen undertook such a follow-up inquiry, this time, however, assigning a more active role to anthropologists. In the tradition of Bronislaw Malinowski and Franz Boas, Cohen called for “functional” field studies, “a movement away from two types of study: the naive reporting and classification of striking human peculiarities; and the more sophisticated attempt to trace the historical origin, evolution, and diffusion of ‘complexes.’”196 Instead of these types of study, Cohen asked anthropologists to help administrators “trace the social consequences of diverse customs, beliefs, rituals, social arrangements and patterns of human conduct.”197 Cohen urged anthropologists to provide the Department with facts helpful to the development of policy. Specifically, he believed that the Indian conception of property rights, which anthropologists could explicate, should be enforced on Indian reservations, rather than the American ideal of private property. Similarly, Cohen believed that anthropology would show the benefit of leisure-like economic activities, to the disappointment of BIA officials—as he sarcastically noted—who for decades had attempted to teach Indians to be “good” farmers or stockmen.198 Overall, it seems that Cohen sought scientific ingly, Karl N. Llewellyn, the movement’s official voice). See generally HORWITZ, supra note 2, at 169-92; LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995); see also ROBERT W. GORDON, Legal Realism, in A COMPANION TO AMERICAN THOUGHT (Richard Wightman Fox & James T. Kloppenberg eds., 1995); DALIA TSUK, Legal Realism, in LEGAL SYSTEMS OF THE WORLD: A POLITICAL, SOCIAL, AND CULTURAL ENCYCLOPEDIA (Herbert M. Kritzer ed., forthcoming 2002). 193. Letter from Felix Cohen to Franz Boas (May 15, 1936), Felix S. Cohen Papers, Box 1, Folder 7, Yale Collection of Western Americana, Beinecke Library, Yale University (referring to Felix S. Cohen, Anthropology and the Problems of Indian Administration, 18 SW. SOC. SCI. Q. 1 (1937) [hereinafter Cohen, Anthropology and the Problems of Indian Administration], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 213). 194. RUSCO, supra note 4, at 190 (quoting Felix S. Cohen). However, as Rusco notes, since many anthropologists did not submit their responses to the questionnaire sent by the Department of the Interior until after the IRA bill was sent to Congress, the impact of these anthropological studies on the IRA is unclear. See generally id. at 188-90. 195. Id. at 190 (quoting Felix S. Cohen). 196. Cohen, Transcendental Nonsense, supra note 186, at 57. 197. Id. 198. Cohen stressed that the belief among certain Indian Service employees that Indians were naturally lazy indicated an Indian Service failure. It showed, he added, that the

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proof for the priority of communal values over possessive individualism,199 a testimony that socialist pluralism was a feasible program. While Cohen’s socialist pluralism lurked in the shadows, his writings already indicated a growing attentiveness to culture. For example, Cohen suggested that New Dealers should seek to accommodate the historical and ethnological groupings of the Indians. He believed that education policies should aim to maintain Indian culture, values, and history. He further argued that health services should consider traditional Indian medicine, and he called on anthropologists to resurrect “forms of Indian art and recreation which [could] serve in modern life the same functions that they [had] served decades ago,” or discover and invent their modern equivalents.200 Cohen did not think that law should mirror or imitate Indian culture. Rather, he believed that policymakers should determine the functional relevance of various aspects of Indian culture. They should examine Indian social organization—“the functional significance of family, clan, and tribal groupings as social determinants in the production, distribution, and use of property, as well as in the noneconomic human relationships of education, religion, play, sex, and companionship.”201 They should look to Indian art as an indication of the motivations and purposes of the craftsman, and recognize its significance as an individualizing or socializing force. They should explore the nature of Indian laws, the incentives to obedience and their efficacy, the techniques of law enforcement, and the relationship between legal sanctions and other social forces. Finally, Cohen urged reformers to look to Indian political systems for models of institutions of social organization and collective behavior.202 Three years after he joined the Department of the Interior, Cohen, in short, sugbearers of modern civilization had not offered certain Indian groups a “moral equivalent” for the work that had traditionally been honored and respected by them. See generally Cohen, Anthropology and the Problems of Indian Administration, supra note 193. For Cohen’s earlier argument in favor of leisure, see Felix S. Cohen, The Blessing of Unemployment, 2 AM. SCHOLAR 203 (1933). 199. See Cohen, Anthropology and the Problems of Indian Administration, supra note 193; see also Felix S. Cohen, Invisible Indian Resources (ca. 1938), Felix S. Cohen Papers, Box 1, Folder 5, Yale Collection of Western Americana, Beinecke Library, Yale University. Cohen wrote: [I]ndividual farming is, according to the traditions of the Indian service, more honorable than group farming. Therefore, tribal herds on two or three reservations today are being broken up . . . . New projects on tribal lands are usually arranged so that each family will have to buy its own team of horses, although a communally owned tractor and truck would cost considerably less. Id. No one, Cohen sarcastically added, forced American corporations to distribute their assets among a million stockholders. Id. 200. Cohen, Anthropology and the Problems of Indian Administration, supra note 193, at 221. 201. Cohen, Transcendental Nonsense, supra note 186, at 57. 202. Id. at 57-58.

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gested that New Dealers should aim beyond the establishment of self-governing socialist communities; they should aim to understand Indian cultures so that they could promulgate laws and policies that would better fit Indian traditions. The radical nature of Cohen’s transformation—from politics to culture—was captured in the reaction of anthropologists. Refusing to publish Cohen’s appeal to anthropologists, Leslie Spier, the Editor of The American Anthropologist explained that there was no room for applied anthropology in their journal.203 His concerns ran deeper. The editor obviously understood the radical implications of Cohen’s growing attentiveness to cultural interests. Underlying functional anthropology was an acceptance, even celebration, of the plurality of social, cultural, political, and economic interests that characterized society. It endorsed diversity, not merely as an empirical fact to be constrained through universal structures, but as a constitutive element of society that should be normatively embraced. Robert Lowie, who found Cohen’s piece “admirable, both in form and substance,”204 took pains to explicate its problematic nature. Anthropologists, he told Cohen, varied greatly “in their individual attitude towards ‘applied anthropology.’”205 Many of them—especially in America—believed that most tribes were weak numerically; thus, especially in the absence of permanent government policy, they expected that the elimination of tribes as cultural entities was “a matter of relatively few years.”206 In the view of these anthropologists, Lowie’s letter implied, Cohen’s advocacy of applied anthropology could impede gradual cultural assimilation.207 Unlike economic and political interests, which could be conceived as universal, cultural interests were particular. To emphasize their functional significance was to engage in a normative argument about pluralism, which even Lowie found troubling. There was a chasm, he 203. See correspondence between Leslie Spier and Felix Cohen, Felix S. Cohen Papers, Box 1, Folder 7, Yale Collection of Western Americana, Beinecke Library, Yale University. 204. Letter from Robert Lowie to Felix Cohen (May 27, 1936), Felix S. Cohen Papers, Box 1, Folder 7, Yale Collection of Western Americana, Beinecke Library, Yale University. 205. Id. 206. Id. 207. Id. Interestingly, other anthropologists reiterated Lowie’s enthusiasm for Cohen’s article. Collier, for example, thought that Cohen’s article was “a particularly lucid, concrete and stimulating discussion.” Letter from John Collier to superintendents (Nov. 3, 1937), Felix S. Cohen Papers, Box 1, Folder 9, Yale Collection of Western Americana, Beinecke Library, Yale University. He sent out copies to superintendents and others associated with the Department of the Interior. Id.; see also correspondence in Felix S. Cohen Papers, Box 1, Folder 9, supra. M.E. Opler thought it was an “admirable paper.” Letter from M.E. Opler to Felix Cohen (Mar. 27, 1937), Felix S. Cohen Papers, Box 1, Folder 7, supra. Alexander Goldenweiser was supportive, too. Even before he received a copy of the article, Goldenweiser expressed an interest in the work undertaken by the Department of the Interior. Letter from Alexander Goldenweiser to Felix Cohen (Mar. 2, 1936), Felix S. Cohen Papers, Box 1, Folder 7, supra.

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explained to Cohen, “between a normative and a purely descriptive approach.”208 Like Cohen, Lowie believed that “the ethnographer should fully expound whatever he knows that might be pertinent to the purposes of officialdom.”209 Still, Lowie questioned, should the ethnographer go any further? For example, “[h]ow can the anthropologist, qua anthropologist, learn and advise which craft activities should be stimulated in response to expectable demands of the market?”210 Should the New Dealers, Lowie’s questions implied, aim beyond protecting the economic and political interests of Indian tribes? Should they embrace cultural pluralism as a normative ideal? Four short years earlier, Cohen’s reply might have been different, but when Lowie asked the question, Cohen was already drawing on anthropological field studies to develop a pluralist approach (systematic pluralism) that would celebrate both socialist and cultural pluralism. Part IV investigates Cohen’s systematic pluralism and how it was reflected in the Handbook. Informed by cultural pluralism, Cohen’s systematic pluralism recognized the multiplicity of value systems within which diverse cultural interests were embedded and urged the expansion of any given system to include the values of other systems. It envisioned law as encompassing the diverse value systems that characterized American society. Part IV.A describes this approach. Drawing on Cohen’s writings on ethics and systematic relativism, it grounds Cohen’s new interpretation of pluralism in his novel ethical ideal—a socialized morality. Cohen’s socialized morality rejected atomistic or individualistic understandings of society and instead emphasized the possibility of social integration (or the integration of systems). Such an approach, I suggest, was informed not only by Cohen’s interactions with Indian tribes, but also by his concerns about the plight of Jews in Europe. Part IV.B explores the relationship between Cohen’s systematic pluralism and his agenda for the Handbook. It further examines the reaction to Cohen’s approach, particularly an attempt by the Justice Department, once the nature of the Handbook was revealed, to halt its publication. Part IV.C suggests that in the Handbook Cohen sought not only to celebrate diverse cultural interests, but also to articulate a theory of group rights that would protect different cultural systems. It meant to allow Native Americans, as well as Jewish Americans, to bring their different values into the American polity. Aiming at the inclusion of historically marginalized voices, the main theme of the Handbook was that a long line of conquerors, including the federal government, had already recognized tribal rights. This recognition, however, also en-

208. Letter from Robert Lowie to Felix Cohen (May 27, 1936), supra note 204. 209. Id. 210. Id.

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tailed the subjection of tribal affairs to congressional control. Cohen’s attempt to universalize a theory of group rights indeed tended to obscure the role of particular groups in actively determining and protecting their own rights. As Part V will show, ultimately, this attempt also led Cohen to articulate a new interpretation of pluralism—comparative pluralism. IV. “THE INTELLECTUAL EQUIPMENT OF A GENERATION”: SYSTEMATIC PLURALISM AND THE HANDBOOK OF FEDERAL INDIAN LAW A. Systematic Pluralism Cohen’s growing attentiveness to the complexity of legal reality as reflecting a variety of social, cultural, economic, and political interests helped to transform his understanding of pluralism. Gradually, he began to suggest that diverse interests were not contained within one value (or legal) system. Rather, they were spread over different systems. For example, concepts like communal holding of property meant one thing for socialists and another for Indians. The success of the IRA thus depended not only on the establishment of stable economic and political structures on Indian reservations. It further required an understanding of the cultural and emotional meaning that Indian tribes attributed to tribal sovereignty. “It is extremely likely that organized Indian tribes will continue to exist,” Cohen wrote in 1939, “as long as American democracy exists and as long as the American people are unwilling to use the army to carry out Indian policies.”211 More important, they would exist “provided that the Indians themselves feel that tribal governments satisfy important human wants.”212 The life expectancy of various tribal constitutions could thus be figured, according to Cohen, by assigning numbers to a variety of factors: [T]he extent to which the organized tribe ministers to the common economic needs of the people, the degree in which the organized tribe satisfies recreational and cultural wants, the extent and efficiency of municipal services which the tribe renders, the general social solidarity of the community, and the vigor with which the tribal government expresses the dissatisfactions of the people and organizes the wishes of the people along rational lines.213

A (tribal) constitution became, in short, “the formal structure of a reality that exists in human hearts.”214 So, Cohen proclaimed, “[a]n 211. Felix S. Cohen, How Long Will Indian Constitutions Last?, 6 INDIANS AT WORK (Dep’t of Interior), 40 (1939), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 222, 223-24. 212. Id. 213. Id. at 228. 214. Id. at 229 (emphasis added).

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Indian constitution will exist as long as there remains in human hearts a community of interdependence, of common interests, aspirations, hopes, and fears, in realms of art and politics, work and play.”215 Only the Indians—not the administration—could establish stable tribal governments; and only when they did, could one talk about self-determination and pluralism. The recognition of a multiplicity of value systems raised important questions about the resolution of conflicts that could transpire between such systems. In a letter to Collier dated March 13, 1939, Cohen expressed his concerns. “It is because I don’t want to see either black or white suppressed or liquidated,” Cohen wrote, “that I oppose any absolutism which would make either white or black ‘false’, ‘unreal’ or ‘secondary’. It is perhaps because I . . . love . . . diversity and ‘irrepressible conflicts’ that I reject absolutism.”216 Conflicts, however, had to “be put on a stable basis if they [were] not to end in the annihilation of one side or both.”217 “I think,” Cohen concluded, that “[t]he relativist approach . . . justifies the stable kind of conflict that we find in music, art or mathematics, where neither side is ever annihilated.”218 Like earlier discussions of political pluralism,219 socialist pluralism—Cohen’s model for the IRA—was premised on a categorical description of conflict as a struggle over limited economic resources: 215. Id. Almost four decades later, Nathan Glazer and Daniel Patrick Moynihan would echo Cohen. In an introduction to a collection of essays titled Ethnicity: Theory and Experience, they wrote that “the cultural content of each ethnic group in the United States seems to have become very similar to that of others, but the emotional significance of attachments to the ethnic group seems to persist.” Nathan Glazar & Daniel Patrick Moynihan, Introduction to ETHNICITY: THEORY AND EXPERIENCE 8 (1975) (quoted in WERNER SOLLORS, BEYOND ETHNICITY: CONSENT AND DESCENT IN AMERICAN CULTURE 35 (1986)). Sollors similarly commented that American ethnicity “is a matter not of content but of the importance that individuals ascribe to it.” SOLLORS, supra, at 35. 216. Letter from Felix Cohen to John Collier (March 13, 1939), John Collier Papers, Microfilm Reel 12, Frame 301, Manuscript and Archives, Yale University Library. Cohen’s. letter was a response to a comment made in a letter from Allan Harper to Collier. Harper suggested that Cohen’s “thesis proved unpalatable” because “he seems to say that there is no substantial difference between colors like black and white; there is only our emotional attitude and approach to the question.” Letter from Allan Harper, Director, TC-BIA (Denver, Colorado), to John Collier (Mar. 7, 1939), John Collier Papers, Microfilm Reel 14, Frame 107, supra. Collier—who believed that Cohen’s essay offered “the pluralistic way of looking at things,” that is, the view that “[w]e unify the disunited world . . . by accepting disunity as being properly of the nature of things”—sent a copy of Harper’s letter to Cohen. Letter from John Collier to Allan Harper (Mar. 10, 1939), John Collier Papers, Microfilm Reel 14, Frame 108, supra; Memorandum from John Collier to Felix Cohen (Mar. 10, 1939), John Collier Papers, Microfilm Reel 12, Frame 300, supra. While the correspondence between Harper, Collier, and Cohen does not mention the title of Cohen’s essay, the content of the letters and their respective dates suggest that they refer to Cohen, Systematic Relativism, supra note 28. 217. Letter from Felix Cohen to John Collier (March 13, 1939), supra note 216. 218. Id. 219. See supra text accompanying notes 47-48.

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employers against employees, corporations against labor unions, producers against consumers, and Indians against non-Indians. The solution was universal and “scientific”: redistribution. It seldom meant more than a repositioning of two sides to a conflict. It neglected to notice that interests were embedded in distinct legal and political systems. Given the multiplicity of cultures, groups, and forms of knowledge, gradually, Cohen came to find unfeasible the assumption that one could provide a universal solution for diverse conflicts. Although grounded in theories of pluralism, such a solution, Cohen’s letter to Collier suggested, forced assimilation. How, then, should one accommodate diversity? By the late 1930s, Cohen articulated an ideal of systematic pluralism, or what he labeled systematic relativism, as a model for realizing diverse interests. Informed by earlier theories of cultural pluralism, particularly Horace Kallen’s orchestral vision of America,220 it was, in Cohen’s view, a “principle of logical tolerance.”221 Building on his 1935 critique of abstract concepts as tools of cultural and political oppression,222 Cohen’s principle of systematic relativism recognized that the meaning of concepts depended upon systems of reference that were external to them, and that many such systems were possible. Legal change thus required not only the understanding of legal reality as a variety of interrelated particular and collective experiences, but also the reconstitution of different legal systems as broader and more inclusive. If different philosophical systems could be increased in scope to maintain common content, then the distinction between the meaning given to abstract concepts within each of them was one of degree—of emotions and attitudes— not of kind. Such, Cohen believed, was also the difference between “red” and “white” America.223 Systematic pluralism was supported by a particular theory of ethics, which Cohen articulated in the mid-1930s. Throughout his life, 220. See supra text accompanying note 49. 221. See Cohen, Systematic Relativism, supra note 28, at 98. 222. See Cohen, Transcendental Nonsense, supra note 186. 223. See Cohen, Systematic Relativism, supra note 28. Cohen concluded the article by noting: The method of systematic relativism, applied in the jungles of politics, frequently demonstrates that what appear to be bitter differences of opinion on practical matters are actually differences of terminology or perspective. Rational argument in this situation becomes possible only when, through some emotional shift, one party comes to accept the postulates and definitions of his adversary, and to talk in the same system, or when a third party (i.e. a “politician” or “statesman”) is found who can talk to each of the disputants in his own system and thus offer each a practical solution which is what he wanted all along and was convinced his adversary did not want, but which, as a matter of fact, his adversary does not object to if only it is phrased in the proper way. Id. at 110.

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Cohen rejected moral positivism and instead emphasized the interdependence of legal science and ethical criticism. Law, he believed, should be grounded in a normative system.224 Cohen’s early writings sought to anchor legal criticism in hedonism.225 As he turned away from socialist pluralism, his ethical ideal changed, too. Instead of hedonism (a rather monistic theory), Cohen adopted a “socialized morality”—an ethical theory that sought to integrate “the life of society as traditional morality has integrated the lives of individuals.”226 Traditional morality, with its focus on individual life, presupposed a metaphysical dogma, “the dogma that the individual is an ultimate unity and society an ultimate plurality.”227 “[A]ll the adjustments, balances, and compromises which are the substance of morality” were thus described as taking place “within an individual life.”228 Social balance, particularly the redistribution of wealth, was preordained to be unjust (though similar balance within a single life—that is, “the sacrifice of today’s pleasure for tomorrow’s”—was commendable).229 Cohen’s alternative was a socialized morality. Its metaphysical dogma revealed “something of the unity of the individual in society itself and something of the plurality of society in the individual life.”230 By admitting that adjustment and integration of diverse interests were possible (according to individualized morality such was indeed the essence of individual life), socialized morality made the normative endorsement of cultural pluralism less threatening to the traditional understanding of society. “The possibility of a social integration of conflicting interests is substantiated,” Cohen proclaimed, “by the integration of conflicting interests in an individual life.”231

224. For Cohen’s rejection of the dichotomy between descriptive and normative social science, see COHEN, ETHICAL SYSTEMS AND LEGAL IDEALS, supra note 102; Felix S. Cohen, Modern Ethics and the Law, 4 BROOK. L. REV. 33 (1934), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 17; and Cohen, Transcendental Nonsense, supra note 186. 225. COHEN, ETHICAL SYSTEMS AND LEGAL IDEALS, supra note 102; see also supra Part III.B. 226. Felix S. Cohen, The Socialization of Morality, in AMERICAN PHILOSOPHY TODAY AND TOMORROW 83 (Horace M. Kallen & Sidney Hook eds., 1935) [hereinafter Cohen, Socialization of Morality], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 337, 348. 227. Id. at 347. 228. Id. 229. Id. 230. Id. at 347-48. 231. Id. at 348. As in his advocacy of pluralism, in his discussion of a socialized morality, Cohen followed in the tradition of William James. See, for example, Hilary Putnam’s summary of James’s views in Essays in Radical Empiricism: [T]he self isn’t a unity and the world isn’t a unity, and so Kant had the wrong problem. The problem shouldn’t be to show that the unity of the world is correlative with the unity of the self, but to show that the disunity of the world is correlative with the disunity of the self. HILARY PUTNAM, REALISM WITH A HUMAN FACE 233-34 (James Conant ed., 1990) (discussing WILLIAM JAMES, ESSAYS IN RADICAL EMPIRICISM (1912)).

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The central point of Cohen’s socialized morality was the rejection of individualism, because, as his argument implied, individualistic theories resisted pluralism. Some positively denied pluralism, others normatively urged moral consensus as an attractive ideal. Still others created procedural mechanisms that could presumably constrain pluralism.232 Instead, Cohen wanted to guarantee that law favored solutions that encouraged the flourishing of diverse social ideas, beliefs, and values; he wanted law to promote solutions that would sustain the individual as a modern social being in a pluralistic society. Every law, Cohen thus argued, should be examined in light of its effects on the enterprise of social integration. “Today, more than ever before,” Cohen would write in the midst of the Second World War, “we need to study the legal relations that have served to bind together in common cause and common effort peoples of different races, different creeds, different social structures, and different ways of life.”233 This was the premise of his systematic pluralism. Cohen’s systematic pluralism was an attempt to articulate a universal ideal (a common cause) that would include all particular systems of reference. It accepted cultural pluralism, but rejected separatism, that is, the idea that different cultures were detached from each other. It opposed the forced assimilation of all cultural systems into one, but envisioned all systems becoming one. The reasons for such an “in-between” approach reached beyond federal Indian policy. Like his attraction to socialist pluralism, Cohen’s fascination with systematic pluralism was influenced by his own sense of identity. Indeed, Cohen’s new model of pluralism was not limited to the accommodation of Indian interests. In the late 1930s and early 1940s, as European Jews were facing ever expanding economic, political, and physical sanctions, Cohen also criticized exclusionary immigration laws—laws that barred refugees from finding a haven within America’s borders. Challenging nativist arguments, Cohen emphasized the important contributions of immigrants to the social and economic welfare of the country and urged the admission of European refugees into the body politic of the nation.234 In his writings on the problem of exclusionary immigration laws, Cohen sought to extend his pluralist approach beyond labor unions and Indian tribes to ethnic communities. His works, however, re232. More recently, Joshua Cohen offered a similar critique. See Joshua Cohen, Pluralism and Proceduralism, 69 CHI.-KENT. L. REV. 589 (1994). See also infra Part VI (discussing post-1945 theories of pluralism). 233. Felix S. Cohen, The Spanish Origins of Indian Rights in the Law of the United States, 31 GEO. L.J. 1 (1942) [hereinafter Cohen, Spanish Origins of Indian Rights], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 230, 231. 234. FELIX S. COHEN, IMMIGRATION AND NATIONAL WELFARE (League for Industrial Democracy Pamphlet Series, 1940), condensed as Exclusionary Immigration Laws, 3 CONTEMP. JEWISH REC. 141 (1940).

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ferred to European rather than Jewish refugees, an evasion that reflected not only Cohen’s political concerns about anti-Semitism, but also his continuing ambivalence toward Kallen’s cultural pluralism.235 As a Jewish American, Cohen always felt the tension between the preservation of one’s particular identity and the desire to be accepted as an American. Motivated by such a desire, his socialist pluralist ideal aimed to create a universal economic, if not also political, structure on Indian reservations almost to the extent of forced assimilation. In the 1940s, informed by his experience in administering the IRA, Cohen, the lawyer for Indian tribes, was willing to accept the plurality of cultural systems. The particular heritage of every group was the premise of his systematic pluralism. Yet, his eagerness as a Jewish American to be admitted into the polity, as well as the cosmopolitanism he inherited from his father, limited the scope of this new approach. Cohen rejected separatism and instead sought to show that legal systems could be expanded to include the voices of various groups. Such was his vision when he was asked to head the survey of federal Indian law and to write the Handbook. As if admitting the lessons learned during the first years of the Indian New Deal, the introduction to the Handbook (which was signed by Margold but likely drafted by Cohen) noted that the IRA reflected a change in the conceptualization of law. It attempted to compensate for “many of the evils resulting from attempts to impose a uniform pattern of treatment upon groups with different wants, and thus [had] strengthened the tendency towards special consideration of the legal problems of particular tribes.”236 Indian tribes, in short, taught Cohen and his colleagues that law was “made for, and in large part by, diverse groups with divergent economic interests, political institutions, and levels of cultural attainment.”237 As Part IV.B suggests, Cohen intended the Handbook to provide a comprehensive analysis of the relationship between Indian tribes and the federal government, and to expand the scope of the American legal system to embrace values and assumptions embedded in tribal systems. Such aims reflected Cohen’s systematic pluralism, with its emphasis on the need to make value systems more comprehensive, as well as his ideal of socialized morality, with its emphasis on social integration.238 Cohen believed that a better understanding of the rela-

235. See supra text accompanying notes 49, 130-37. 236. Nathan R. Margold, Introduction to HANDBOOK, supra note 13, at ix [hereinafter Margold, Introduction to HANDBOOK]. 237. Id. 238. On the relationship between Cohen’s ethical philosophy and the Handbook, see also Feldman, supra note 17, at 501 (noting that ultimately Cohen wanted the Handbook “to reduce the number of instances, in the area of federal Indian law, where the courts and administrators ignored the ethical realities and implications of their decisions”).

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tionship between Indians and the federal government would permit the inclusion and integration of their voices into the body politic of the nation. Not everyone, however, shared Cohen’s hopes. Still, from Cohen’s perspective, in the revolutionary politics of the New Deal, the IRA was an act of liberation; the Handbook was its social contract.239 B. Integration and Discord The opportunity to write the Handbook surfaced during the autumn of 1938. Carl McFarland, Assistant Attorney General, and Charles E. Collett, the Chief of the Trial Section of the Lands Division, asked Cohen to organize and head a survey of federal Indian law. The survey was to involve the compilation of statutes dealing with Indians that had never been compiled or codified hitherto, and their annotation with reference to cases, Attorneys General’s opinions, and Solicitors’ opinions. Based on these materials, a handbook was to be prepared for the legal and administrative officers of the Indian Service, who, before 1938, were forced to look for legal authorities in hundreds of scattered sources.240 After some deliberation, the work began, as a cooperative project of the Lands Division of the Department of Justice and the Department of the Interior under Cohen’s supervision.241 Cohen admitted that “the task of systematizing this law and preparing a comprehensive handbook on the subject” was “one of peculiar difficulty.”242 No textbook or treatise on the subject had ever been written, and as Cohen had learned in the preceding five years, the law relating to Indian affairs was complex and difficult.243 However, the potential uses of the survey and the proposed handbook made the endeavor worthwhile. As Jill Martin has recently noted, Cohen envisioned “a book that would last into the future, setting forth how the laws had developed 239. For a discussion of liberation and social contracts in revolutionary politics, see MICHAEL WALZER, EXODUS AND REVOLUTION (1985). 240. Memorandum from Felix Cohen to Mr. Stull (Dec. 5, 1938), Papers Relating to the Handbook of Federal Indian Law, Folder 6, Yale Collection of Western Americana, Beinecke Library, Yale University; see also Felix S. Cohen, Report of Work as Chief of Indian Law Survey: 1939-1940 [hereinafter Cohen, Report of Work as Chief of Indian Law Survey], attached to Memorandum from Felix Cohen to the Solicitor of the Department of the Interior (Feb. 10, 1940), Papers Relating to the Handbook of Federal Indian Law, Folder 7, supra; cf. Martin, supra note 98, at 36; Rennard Strickland & Gloria Valencia-Weber, Observations on the Evolution of Indian Law in the Law Schools, 26 N.M. L. REV. 153, 155-57 (1996). 241. Cohen’s duties were to “be performed under the general supervision of the Solicitor of the Department of the Interior, and in collaboration with attorneys of the Department of Justice.” Cohen, Report of Work as Chief of Indian Law Survey, supra note 240. 242. Memorandum from Felix Cohen to Mr. Stull (Dec. 5, 1938), supra note 240. 243. Id.

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over time and explaining the legal interests of all parties involved.”244 The handbook was to be an evolving treatise: a book that would represent not only federal and state regulation of Indian affairs, but also changing Indian customs and laws. A statute for the American ideal of democracy245—which at the time Cohen interpreted through the mediation of his concept of systematic pluralism—the treatise was meant to familiarize lawyers with the diverse aspects of Indian law. The proposed handbook, Cohen hoped, would restore an age-old heritage to its warranted status. Federal and state laws, judicial and administrative decisions would then aim to fulfill the promise of this tradition.246 Not everyone shared Cohen’s aspirations. Indeed, Cohen’s eagerness (and the willingness of the Department of the Interior) to protect the rights of Indian tribes caused much aggravation to many in the Justice Department. They believed that the handbook should be written to assist those attorneys in their department who litigated cases against Indians.247 Cohen’s prophecy, during the initial deliberations, that “this project would be resented by certain Justice Department employees”248 was quickly fulfilled. From the start, the Justice Department raised a variety of bureaucratic obstacles.249 Then, as McFarland, who had a keen interest in the project, left the Department, and with a Second World War on the horizon, “there wasn’t much interest in this ‘Indian thing.’”250 On October 31, 1939, eight months into the project, Cohen was called before Assistant Attorney General Norman M. Littell, who advised him that “he was dissatisfied with the work of the project and had determined to put 244. Martin, supra note 98, at 37. 245. Id. 246. See Cohen, Report of Work as Chief of Indian Law Survey, supra note 240. 247. E.g., Deloria, supra note 21, at 964. As Jill Martin writes: Some lawyers at Justice wanted a litigation manual that explained how to win Indian cases—mostly against the Indians themselves. Others wanted to know only about the government’s rights and responsibilities, and not about the Indians’ rights. Still others felt that history was not important, and that only cases exemplifying the current state of the law should be included. Some believed that the current caseload of the Justice Department’s lawyers should determine which topics were included. Martin, supra note 98, at 42. As Martin shows, in a staff meeting, Cohen rejected these assumptions. He did not regard vested interests in perpetuating litigation as relevant, and instead indicated that the aim of the proposed handbook was to protect the property and rights of the Indians. The argument with respect to the current caseload was similarly dismissed by Cohen; it was, he suggested, relevant to the past, yet, the handbook was to last into the future. “Our job,” Cohen concluded, “is one of prophecy, based on careful observation of present trends.” Id. (quoting Felix S. Cohen). 248. Cohen, Report of Work as Chief of Indian Law Survey, supra note 240. 249. In particular, they engaged in a petty administrative warfare—for example, disallowing Cohen’s assistants to enter the Department of Justice building after hours, or failing to provide mimeographing when required. Id. 250. Strickland & Valencia-Weber, supra note 240, at 156.

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an end to it.”251 On the following day, Cohen was “publicly relieved of [his] command in the presence of [his] staff, which was then assigned to various other units of the Lands Division.”252 Attacks on Cohen’s scholarship and his character “before [his] superiors in the Interior Department and before various senators and other officials” succeeded the termination of the project.253 For the most part, Littell’s sudden change of heart—only weeks before the incident he had indicated that the work was “very interesting, and . . . quite valuable”254—was due to his growing concerns about the use that Indian tribes could make of the proposed handbook.255 The Attorney General formally explained that the work on the handbook was terminated “because the drafts of chapters submitted were of such inferior quality that no practicable amount of revisions would make them adequate to serve the needs of attorneys either in [the Justice Department] . . . or the Department of the Interior.”256 Cohen’s superiors in the Department of the Interior were not impressed by these accusations. Acting Secretary E.K. Burlew advised Littell that in view of their knowledge of Cohen’s prior work, Solicitor Margold and Acting Solicitor Frederic Kirgis found it difficult to accept the view that the material submitted was “hopelessly worthless.”257 They thus “requested an opportunity fully to examine into the matter on the merits.”258 Following this examination, the Department of the Interior and its “pro-Indian” lawyers took over the project.259 251. Memorandum from Felix Cohen to the Solicitor of the Department of the Interior (Feb. 10, 1940), supra note 240. 252. Id. 253. Id. 254. Id. (quoting Norman M. Littell). 255. To some extent, Littell simply lacked knowledge of Indian law, or interest in it. Cohen, Report of Work as Chief of Indian Law Survey, supra note 240. Cohen seems to have believed that the Justice Department was also becoming uneasy with his critique of conditions within the Department, which, in Cohen’s opinion, were “inconsistent with ordinary standards of efficiency, economy and fair play in Government service, and which . . . [would have] greatly discredit[ed] [the] Administration if they [became] generally known before appropriate remedial steps [were] taken.” Memorandum from Felix Cohen to the Solicitor of the Department of the Interior (Feb. 10, 1940), supra note 240. 256. Letter from Attorney General [Frank Murphy] to Harold Ickes (Dec. 13, 1939), Papers Relating to the Handbook of Federal Indian Law, Folder 1, Yale Collection of Western Americana, Beinecke Library, Yale University. For Cohen’s response, see Papers Relating to the Handbook of Federal Indian Law, Folder 6, supra. 257. Memorandum from Felix Cohen to the Solicitor of the Department of the Interior (Feb. 10, 1940), supra note 240. 258. Id.; see also Letter from E.K. Burlew to Attorney General (Jan. 16, 1940), Papers Relating to the Handbook of Federal Indian Law, Folder 2, Yale Collection of Western Americana, Beinecke Library, Yale University. 259. The story goes that Cohen went to his father’s close friend, Felix Frankfurter, who then went to see his friend, Franklin D. Roosevelt. Roosevelt apparently said that he could

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Cohen and his team completed the Statutory Compilation of the Indian Law Survey: A Compendium of Federal Laws and Treaties Relating to Indians in 1940, and “[a]fter intensive work by some fortyseven staff members and contributors,”260 the Handbook of Federal Indian Law was “printed and officially released on August 25, 1941” under the auspices of the Department of the Interior.261 In a letter written after the events, Cohen noted that he was “trying to regain the mark of a civilized man,” that is, “the capacity to doubt one’s own first principles, which [had] entirely evaporated in the course of a year’s strain of battle . . . over the [Handbook] . . . with colleagues, whose livelihood and prestige were threatened by the publication of trade secrets.”262 “It was a tough and dirty fight while it lasted,” Cohen concluded, “and the ensuing dolce far niente is without blemish.”263 Writing in retrospect, Felix Frankfurter observed that the Handbook was an attempt to bring “meaning and reason out of the vast hodge-podge of treaties, statutes, judicial and administrative rulings, and unrecorded practice in which the intricacies and perplexities, the confusions and injustices of the law governing Indians lay concealed.”264 While the Handbook did not “purport to be a cyclopedia,” it was, as the editors of the 1982 edition noted, “a thorough and comprehensive treatise that attended to virtually every nook and cranny of the field.”265 As Part IV.C demonstrates, with respect to Cohen’s changing interpretations of pluralism, the importance of the Handbook was its proclamation, supported by historical evidence, that Indian tribes were sovereign bodies, with “all the powers of self-government of any sovereignty except insofar as those powers have been modified or repealed by act of Congress or treaty.”266 Ironically, Cohen’s argument endorsed the fiction of conquest, thus subjecting tribal affairs to congressional control. As Part IV.C shows, such a claim was grounded in a particular theory of group rights, which Cohen articulated in the 1940s. As his analysis became fixated, however, on the need to pronot “overrule the Attorney General,” but Frankfurter convinced him that no “overruling” was required, just “re-establishing.” That, Roosevelt agreed to do, and the task-force moved from the Justice Department to the Department of the Interior. Strickland & ValenciaWeber, supra note 240, at 156. 260. Introduction to 1982 HANDBOOK, supra note 33, at viii. For a detailed examination of the writing process, see Martin, supra note 98. 261. Martin, supra note 98, at 55. 262. Letter from Felix Cohen to Sam Thorne (ca. 1941), Joseph P. Lash Papers, Box 50, Folder 7, Franklin D. Roosevelt Library. 263. Id. 264. Felix Frankfurter, Foreword to Symposium: Felix S. Cohen, 9 RUTGERS L. REV. 355, 356 (1954). 265. Introduction to 1982 HANDBOOK, supra note 33, at viii. 266. Margold, Introduction to HANDBOOK, supra note 236, at x.

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tect particular group rights, his systematic pluralist assumption— that value systems could be enlarged to include other systems, ultimately becoming one—gradually disintegrated. Part V will examine Cohen’s alternative—comparative pluralism—and how it informed the drafting of the ICCA. C. Systematic Pluralism, Revisited: A Group Right To Be Different The major theme of the Handbook and of Cohen’s writings during the early 1940s was that the history of Indian nations and the history of international law provided ample precedents for the protection of the collective rights of Indian tribes. According to Cohen, the history of Indian nations revealed that the constitutions written by the Iroquois confederacy and other peoples preceded the American Constitution and were indeed the hidden roots of civilization.267 He further suggested that a long line of conquerors, including the federal government, recognized these constitutions. Traced back to the “Spanish School” of international law, this recognition, according to Cohen, indicated that both American law and international law were sufficiently expansive to embrace a conception of group rights. Cohen admitted that American Indians were widely oppressed under Spanish rule, but he asserted that “the oppression was in defiance of, rather than pursuant to, the laws of Spain.”268 While the American colonies “appealed to the traditional legal rights of Englishmen when they rebelled against a royal administration that had violated those rights,” Cohen wrote, “the peoples of Latin America appealed again and again to the humane Spanish legal ideal of racial equality in rebelling against administrations which had been faithless to that ideal.”269 Many have accused Cohen of endorsing in his historical analysis the fiction of conquest, that is, the idea that while tribes initially possessed all the powers of a sovereign nation, after conquest, these powers were subject to qualification by the conqueror, for example, the federal government.270 Cohen’s writings during the early 1940s clearly supported the argument that the conquerors were the arbiters of Indian rights. Yet, Cohen did not seek to encourage congres267. Felix S. Cohen, Indian Rights and the Federal Courts, 24 MINN. L. REV. 145, 14784 (1940) [hereinafter Cohen, Indian Rights]. In a footnote in the Handbook, Cohen listed the sixty-five “constitutions or documents in the nature of constitutions recorded in the Interior Department” prior to approval of any IRA constitutions. HANDBOOK, supra note 13, at 129. As Rusco notes, a few of these constitutions were organized “in response to the first notice to Indians that a major revision of Indian law was planned, but most predate[d] the Indian Reorganization Act.” RUSCO, supra note 4, at 40. 268. Cohen, Spanish Origins of Indian Rights, supra note 233, at 243; see also id. at 239-252. 269. Id. at 243; see also id. at 240-43. 270. E.g., BARSH & HENDERSON, supra note 29, at 112, 278.

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sional intervention in Indian affairs. He truly wanted to defend tribal rights. Why, then, did he subject tribal affairs to congressional control? The reasons, I suspect, reach back to Cohen’s systematic pluralism, with its ethical grounding and its relationship to Cohen’s sense of identity as a Jewish American. On its face, it seems that Cohen adopted the fiction of conquest to de-radicalize the Handbook’s argument in defense of tribal rights. Motivated by his faith in the feasibility of expanding legal and moral systems, Cohen hoped that by showing that the protection of tribal rights had been an important aspect of different legal traditions, including the American one, he would gain support for his advocacy of group rights, a claim that reached back to the IRA, particularly to Powers of Indian Tribes.271 He wanted the Handbook to be a social contract between Indians and non-Indians, a social contract that would protect the communal rights of Indian tribes. In this context, history was a means to an end. Cohen hoped that the display of historical evidence would support the protection of tribal rights, including the right to self-government, without appearing—amidst the growing expansion of federal powers during World War II—to threaten congressional powers. According to Cohen, his concerns were informed by his experience during his first year in office. As he was studying the legal rights of Indian tribes—a study that was to serve as a guide in the drafting of tribal constitutions under the IRA—Cohen had concluded that “the laws and court decisions clearly recognized that Indian tribes [had] all the governmental rights of any state or municipality except in so far as those rights [had] been curtailed or qualified by Act of Congress or by treaty, and such qualifications [were] relatively minor.”272 His work was adopted as the Solicitor’s Opinion and then approved by the proper authorities in the Department of the Interior. Yet, all copies were carefully hidden away in a cabinet, and, Cohen sarcastically added, “when an Indian was found reading this opinion, the copy was forthwith taken from his hands and placed under lock and key.”273 In such an atmosphere, Cohen consciously sought to provide a passive facade for his Handbook, suggesting that it did not rewrite Indian law; rather, it uncovered what “every schoolboy” already

271. See supra text accompanying notes 175-84. 272. Cohen, Indian Self-Government, supra note 187, at 306-07. 273. Id. “Incidentally,” Cohen commented, “the Indian whose reading was thus interrupted had spent more years in school and college than the men who controlled the lock and key.” Id. If the opinion troubled the Indian office, its suppression provoked Cohen. He distributed copies of the opinion wherever he could. Id. Indian Self-Government was published shortly after Cohen had left the Department of the Interior.

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knew—that a long line of conquerors had left tribal sovereignty intact.274 Systematic pluralism was thus feasible. There was, I believe, a more personal (and less instrumental) reason for Cohen’s endorsement of the fiction of conquest. Cohen came to the New Deal to promote tribal self-government. Almost a decade in the service of the Department, as well as the rise of totalitarianism in Europe, helped to shift his focus from sovereignty to racial discrimination. In the late 1930s, Cohen no longer believed that racial tensions would disappear once social or political conflicts were resolved. Rather, his ideal of systematic pluralism envisioned social and cultural integration as an alternative to discrimination. Cohen knew that the fiction of conquest meant that sovereigns (for example, the federal government) could intervene in tribal affairs. He embraced it, I suspect, not only because it de-radicalized the message of the Handbook. Rather, endorsing the fiction of conquest allowed Cohen to celebrate tribal rights, on the one hand, and to argue, on the other hand, that tribes were not excluded from the mainstream of American life. It laid a foundation for a more general theory of group rights; a theory that admitted diversity, denied separatism, and made the sovereign the force of social integration. According to Cohen’s narrative, such a conception of group rights was already an element of American law. The limits of Cohen’s systematic pluralism, I have suggested, were determined by his aspirations as a Jewish American to be included in the polity.275 For Cohen—the pluralist, but also the Jewish American, who was at the time struggling to keep American borders open to European refugees—both the possibility of inclusion and the role of the sovereign in battling racial discrimination were vital. “The victim of economic oppression may be buoyed up in the struggle by the hope that he can improve his economic status,” he wrote in 1940.276 “The victim of political oppression may change his political affiliation,” and “[t]he victim of religious oppression,” Cohen wished to believe, “may embrace the religion of his oppressors.”277 Yet, “[t]he victim of racial persecution” could not “change his race.”278 “For these 274. The term “every schoolboy” is an allusion to Cohen’s argument in support of tribal land claims. In Original Indian Title, Cohen rejected the myth that “[e]very American schoolboy [was] taught to believe,” that is, “that the lands of the United States were acquired by purchase or treaty from Britain, Spain, France, Mexico, and Russia.” Felix S. Cohen, Original Indian Title, 32 MINN. L. REV. 28 (1947) [hereinafter Cohen, Original Indian Title], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 273, 279-80. Instead, Cohen argued that the lands were acquired from their original Indian owners. Id. at 280; see also infra text accompanying notes 342-45. 275. See supra text accompanying note 235. 276. Cohen, Indian Rights, supra note 267, at 185. 277. Id. 278. Id.

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victims,” Cohen proclaimed, there was “no sanctuary and no escape.”279 To be integrated into the polity, these victims needed the protection of the sovereign. However, “since all the minority groups that [had] reason to fear discriminatory legislation [made] up together a great majority of [the] population,” Cohen maintained that at “the heart of our democratic institutions” was an asserted right (of individuals and groups) to be immune from racial discrimination.280 The long history described in the Handbook culminated in the Fifth, Fourteenth, and Fifteenth Amendments to the United States Constitution,281 which, according to Cohen, endorsed this asserted right.282 “[T]he right to be immune from racial discrimination by governmental agencies,” Margold similarly wrote in the introduction to the Handbook, “is an essential part of the fabric of democratic government in the United States.”283 With the rise of totalitarianism in Europe, many liberals were moving toward rights consciousness.284 Cohen, who never disavowed his socialist convictions, adopted a collective (or group), rather than an individualistic, conception of rights.285 His systematic pluralism focused on the possibility that any given value system could be expanded to encompass other value systems. In similar manner, in the

279. Id.; cf. Kallen, Democracy Versus the Melting Pot, supra note 49. 280. Cohen, Indian Rights, supra note 267, at 185. 281. U.S. CONST. amend. V; U.S. CONST. amend. XIV; U.S. CONST. amend. XV. 282. Cohen, Indian Rights, supra note 267, at 191; Felix S. Cohen, Colonialism: A Realistic Approach, 55 ETHICS 167 (1945) [hereinafter Cohen, Colonialism], reprinted in THE LEGAL CONSCIENCE, supra note 6, at 364. 283. Margold, Introduction to HANDBOOK, supra note 236, at x. 284. See generally ALAN BRINKLEY, THE END OF REFORM: NEW DEAL LIBERALISM IN RECESSION AND WAR (1995). For the reemergence of “democracy” in the 1940s, see also MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE (1998); EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE (1973); THE WARREN COURT IN HISTORICAL AND POLITICAL PERSPECTIVE (Mark Tushnet ed., 1993); Morton J. Horwitz & Orlando do Campo, When and How the Supreme Court Found Democracy—A Computer Study, 14 QUINNIPIAC L. REV. 1 (1994). 285. By an “individualistic conception of rights,” I refer to the assumption that every individual is a unique being with concrete needs, but that what constitutes one’s moral dignity is not what differentiates him or her from the other but what they, as rational beings, have in common. By a “collective conception of rights,” I refer to the assumption that what constitutes one’s moral dignity is what differentiates him or her, as a member of a particular group, from others. A collective conception of rights assumes not only formal equality between groups, but also a concept of equality that takes into account the unique needs of any given group. My interpretation of Cohen's approach draws upon contemporary political theory. See Seyla Benhabib, The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory, in FEMINISM AS CRITIQUE: ON THE POLITICS OF GENDER 77, 86-91 (Seyla Benhabib & Drucilla Cornell eds., 1987). For Cohen's approach, see generally Cohen, Indian Rights, supra note 267; Cohen, Spanish Origins of Indian Rights, supra note 233; Cohen, Colonialism, supra note 282; and Cohen, Indian Self-Government, supra note 187.

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legal realm, Cohen sought not only to acknowledge the existence of different cultures, but also to articulate a comprehensive legal doctrine that would protect them. A group right to be different— culturally, politically, and socially—was Cohen’s choice. His writings during the 1940s suggested that an individualistic conception of rights could not attend to the multiplicity of competing cultural, social, economic, and political systems that characterized American society. Social integration accordingly required the celebration of the rights of groups to assert their differences. Such a collective conception of rights, Cohen also wished to show, was already an element of the American legal system. By way of introduction to the Handbook, he suggested that it reflected “a set of beliefs that [formed] the intellectual equipment of a generation”:286 a belief that our treatment of the Indian in the past is not something of which a democracy can be proud, a belief that the protection of minority rights and the substitution of reason and agreement for force and dictation represent a contribution to civilization, a belief that confusion and ignorance in fields of law are allies of despotism, a belief that it is the duty of the Government to aid oppressed groups in the understanding and appreciation of their legal rights, a belief that understanding of the law, in Indian fields as elsewhere, requires more than textual exegesis, requires appreciation of history and understanding of economic, political, social, and moral problems. These beliefs represent . . . the American mind in our generation as it impinges upon one tiny segment of the many problems which modern democracy faces.287

At the dawn of the 1940s, Cohen portrayed the protection of minorities’ rights not only as a fundamental legal principle, but also as an already existing feature of American law. “[T]he American community is made up of wolves and sheep, and the sheep have got to be protected against the wolves,” Cohen believed.288 As Russel Barsh has noted, Cohen “was a man with a mission . . . . The law as he conceived it was an evolving instrument of human progress which, like any tool, worked best if well understood and properly used.”289 Accordingly, Cohen did not only include legal decisions in the Handbook. Rather, he annotated them to support his ideal of systematic pluralism and its legal correlate—a conception of group rights. When he joined the New Deal, Cohen saw on Indian reservations a socialist structure that he wished the nation to imitate; he saw on Indian reservations what he wished to prescribe for American soci286. Felix S. Cohen, Author’s Acknowledgments in HANDBOOK, supra note 13, at xviii [hereinafter Cohen, Author’s Acknowledgments]. 287. Id. 288. Kramer-Cohen et al., supra note 99, at 77. 289. Barsh, supra note 29, at 800.

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ety. In the 1940s, as he was seeking to promote his ideal of systematic pluralism, especially his argument in favor of group rights, he found supporting evidence, again, on Indian reservations. Cohen’s history of the relationship between Indian tribes and the different colonial conquerors, in short, unraveled his ideal of systematic pluralism. Many scholars have more recently sought to identify in American legal history a concept of rights that could embrace not only the Lockean, liberal notion of individual rights, but also a conception of group rights.290 Some have suggested that a communitarian tradition that stressed the priority of communal values informed American law throughout the nineteenth and early twentieth centuries.291 Others have argued that a republican tradition that emphasized civic virtue and endorsed notions of individual and collective rights influenced American legal thought.292 Still others claim that liberalism itself supports group rights.293 Cohen’s theory of rights drew on his ethical conception of the good society and his ideal of systematic pluralism. It grounded human equality in the celebration of human differences. The state was not a neutral night-watchman. Rather, it was charged with the affirmative protection of group rights. Lest he be misunderstood, Cohen emphasized that such an image of the state did not sanction the trust doctrine, which viewed Indians as wards of the state. The protection of group rights was thus subject to the limitation that it was for the welfare of those protected and in their interests.294 Rights, in short, were need-based and historically construed through open social dialogues, defined and redefined through the interaction of particular groups and the relationship between groups and the polity. In his writings during the 1940s and in the Handbook, Cohen elaborated and celebrated such a dynamic ideal of group (and individual) rights. Articulating his systematic pluralist ideal, these writings aimed to show that law was more than words and more than brute force. Law was a system, or an organization, which

290. But see Tsosie, supra note 27 (discussing the unique status of Indian tribes with respect to conceptions of group rights). 291. See, e.g., MICHAEL J. SANDEL, DEMOCRACY’S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996). 292. See, e.g., Symposium, The Republican Civic Tradition, 97 YALE L.J. 1493 (1988). 293. See, e.g., Mark D. Rosen, The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, 84 VA. L. REV. 1053 (1998). Compare WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995), with Robert Justin Lipkin, Can Liberalism Justify Multiculturalism?, 45 BUFF. L. REV. 1 (1997). 294. See, e.g., Cohen, Spanish Origins of Indian Rights, supra note 233, at 244-47.

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translated diverse visions of social reality and thus made the impact of social forces more predictable.295 Cohen’s ideal of group rights as a means of social integration assigned, however, little active role to groups in determining and protecting their rights. Focusing on the expansion of systems, systematic pluralism was premised on the plausibility of universal solutions. It admitted the particularity of different systems, but suggested that distinctions disappeared once all systems grew more inclusive, ultimately becoming one. The fiction of conquest, too, implied that as the voice of the conqueror became dominant, the voices of particular groups became almost irrelevant. Notably, the voices of Indian tribes were missing from the Handbook. Ironically, critics of Cohen’s aims pointed him toward a more explicit recognition of the importance of particular voices. For one thing, many rejected Cohen’s appeal to open America’s borders to European refugees because more lenient immigration laws were conceived not as making the polity more inclusive, but as protecting the particular interests of Jewish refugees. Beginning in the 1940s, the Indian New Deal, too, was coming under attack as preserving the particular status of Indian tribes.296 In the mid-1940s, Cohen was thus searching for an approach that would better mediate the demands of particularism and universalism. Coinciding with his work on the ICCA, his quest ultimately led him to articulate an ideal of comparative pluralism. It sought to mediate conflicting value systems not by expanding one system to include others, but by encouraging dialogue and translation between and among distinct systems. Part V examines Cohen’s comparative pluralism and its relationship to the drafting of the ICCA. Part V.A describes the Act. Presumably accepting the inherent sovereignty of Indian tribes, as it was articulated in the Handbook, the ICCA waived the sovereign immunity of the federal government and allowed Indian tribes to sue for damages for their relinquished lands. Many have since criticized the ICCA for restrictions it imposed on the remedies available to Indian tribes and for its significant role in promoting the policy of termination. As Part V.B suggests, for Cohen, the Act was symbolic. Intellectually, he believed that the establishment of an investigatory commission—rather than an adversarial body—to hear and determine tribal land claims against the federal government would illustrate the importance of agency and the possibility of communication 295. On the relationship between law and social narratives, see Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983), reprinted in THE ESSAYS OF ROBERT COVER, supra note 35, at 95; Nomi M. Stolzenberg, Un-Covering the Tradition of Jewish “Dissimilation”: Frankfurter, Bickel, and Cover on Judicial Review, 3 S. CAL. INTERDISC. L.J. 809 (1994). 296. See infra Part VI.

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and translation between and among distinct value systems. These were the premises of his developing ideal of comparative pluralism. Part V.C identifies the personal appeal of comparative pluralism by closely examining Cohen’s article, How We Bought the United States,297 which Cohen wrote in support of the ICCA. How We Bought the United States replaced the fiction of conquest with a contractual approach, assigning an active role to Indian tribes in determining and protecting their collective rights. By accentuating historical exchanges between Indians and non-Indians, Cohen intended to defend the history of race relations in America against comparisons to totalitarianism. By encouraging dialogue between distinct value systems, comparative pluralism was indeed Cohen’s alternative to totalitarianism. In the postwar years, Cohen, once again, found proof for the feasibility of his pluralist ideal on Indian reservations. V. “EVERYTHING HAS TWO HANDLES”: COMPARATIVE PLURALISM AND THE INDIAN CLAIMS COMMISSION ACT, 1946 A. Indian Claims Throughout the nineteenth century, Indian tribes had lost most of their lands to non-Indian settlement. Because the United States as a sovereign could not be sued until it waived its privilege, Indian tribes could not protect their lands in courts. The establishment of the Court of Claims in 1855298 did little to change the situation, as an 1863 provision removed from its jurisdiction all claims arising out of treaties with the Indians.299 In the early twentieth century, as more and more tribes pressed for a resolution of their claims, Congress passed a series of special acts granting the Court of Claims jurisdiction to hear individual tribes’ cases. Congress did not rule on these cases. Rather, it waived sovereign immunity and allowed individual tribes to bring their claims.300 In 1928, the Meriam Report301 recommended the establishment of a fairer and more efficient device to resolve Indian claims.302 In its third title, the original draft of the IRA had aimed to prohibit future land allotments and to restore to tribal ownership those lands which

297. Felix S. Cohen, How We Bought the United States, COLLIER’S, Jan. 19, 1946, at 22 [hereinafter Cohen, How We Bought the United States], reprinted with adaptation in Cohen, Original Indian Title, supra note 274, at 279-88. 298. Act of Feb. 24, 1855, ch. 122, 10 Stat. 612 (current version at 28 U.S.C. §§ 14911509). 299. Act of Mar. 3, 1863, ch. 92, § 9, 12 Stat. 765, 767 (current version at 28 U.S.C. § 1502). 300. Charles F. Wilkinson, The Indian Claims Commission, in INDIAN SELF-RULE, supra note 23, at 151, 151. 301. INSTITUTE FOR GOV’T RESEARCH, supra note 74. 302. Wilkinson, supra note 300, at 151-52.

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had been declared surplus under the respective allotment acts but were never settled. In 1945, when William A. Brophy took office as Commissioner of Indian Affairs, he declared as one of his goals the creation of a tribunal for hearing and determining Indian land claims against the federal government.303 Cohen assisted Brophy in securing the passage of the ICCA in the late summer of 1946 and the establishment of the Indian Claims Commission;304 the Commission was patterned after the Pueblo Land Board.305 For Cohen, its intellectual and legal roots were the IRA’s endorsement of distributive sovereignty and the Handbook’s discussion of inherent sovereignty. Throughout the early 1940s, Cohen paved the way for the ICCA. In 1941, he helped to secure the land rights of the Walapai Indians against the Santa Fe Pacific Railroad Company.306 In 1942, he assisted in protecting the fishing rights of the Yakima Indians.307 After the war, the time was ripe for bringing a closure to Indian land claims against the federal government. Different policy tides made the passage of the ICCA possible. Many legislators thought that the resolution of Indian claims would help the termination process by removing “a major barrier to federal withdrawal,”308 and by promoting the economic self-sufficiency of tribes that would receive awards. Some supported the adjudication of Indian claims as a matter of fairness to the Indians.309 Cohen’s hopes were with them. Cohen envisioned an act that would provide “creative solutions” to tribal claims.310 In his view, the ICCA was a direct challenge to the absolute sovereignty of the federal government. Given their inherent sovereignty, as he defined it in Powers of Indian Tribes and in the Handbook,311 Cohen believed that Indian tribes were on a par with the federal government; hence, their ability to sell their lands and to 303. James E. Officer, Termination as Federal Policy: An Overview, in INDIAN SELFRULE, supra note 23, at 114, 118. 304. Several bills that were introduced in Congress during the late 1930s and early 1940s already shifted the attention from the need to establish a formal court to the goal of setting up a commission. As Vine Deloria recently noted, “[t]he investigatory commission appeared to be the only feasible vehicle for handling claims which involved history and anthropology as much as they involved legal theories.” DELORIA, supra note 23, at 221. 305. TAYLOR, supra note 56, at 149-50. 306. United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941). 307. Tulee v. Washington, 315 U.S. 681 (1942). In 1949, Cohen would similarly work to secure the rights of the native inhabitants of the Karluk Reservation in Alaska to prevent commercial fishing in their waters. Hynes v. Grimes Packing Co., 337 U.S. 86 (1949); see also COHEN: A FIGHTER FOR JUSTICE, supra note 98, at 9. 308. Officer, supra note 303, at 118; see also BARSH & HENDERSON, supra note 29, at 125. 309. Officer, supra note 303, at 118; see also Ward Churchill, The Earth is Our Mother: Struggles for American Indian Land and Liberation in the Contemporary United States, in THE STATE OF NATIVE AMERICA, supra note 23, at 139, 144-47. 310. EDWARD LAZARUS, BLACK HILLS/WHITE JUSTICE: THE SIOUX NATION VERSUS THE UNITED STATES 1775 TO THE PRESENT 185 (1991). 311. See supra text accompanying notes 267-74.

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sue when the government failed to fulfill its obligations according to the terms of the sale.312 In reality, the remedies provided by the ICCA were limited. While public announcements declared that all Indian claims would receive serious consideration, the Act imposed strict limitations on the remedies that the Commission could offer.313 The ICCA provided only for “the fair market value of the land at the time of the taking, without interest, and it could not restore land to Indians under any circumstances.”314 Despite a flood of cases (over 600 had been docketed by 1951), “in 1959 only $17.1 million in restitution had been paid, and throughout the 1960s, the average award was approximately $500,000.”315 In part, changes in federal Indian policy and in the personnel of the Department of the Interior determined the fate of the ICCA.316 Indeed, when he drafted the Act, Cohen was already caught between the pressing needs of bringing justice to Indian tribes, on the one hand, and not alienating Congress, on the other.317 Part V.B elaborates Cohen’s intellectual reasons for believing that the ICCA would benefit the Indians. It shows that for Cohen, the establishment of an investigatory commission to hear and determine tribal land claims against the federal government was symbolic. By recognizing Indian tribes’ voices, Cohen believed that the Commission would illustrate the importance of agency and the possibility of dialogue between and among distinct legal systems; it would endorse his developing ideal of comparative pluralism. As Part V.C demonstrates, when he drafted the ICCA, Cohen, the Jewish American, needed to believe in the possibility of dialogue and coexistence.

312. See Cohen, Original Indian Title, supra note 274; Felix S. Cohen, Indian Claims, 2 AM. INDIAN 3, (1945), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 264. 313. Officer, supra note 303, at 118; Wilkinson, supra note 300, at 152. 314. Michaels, supra note 151, at 1578. 315. Id. at 1579; see also MICHAEL LIEDER & JAKE PAGE, WILD JUSTICE: THE PEOPLE OF GERONIMO VS. THE UNITED STATES (1997). The Commission was terminated on September 30, 1978, turning over sixty-eight pending cases to the U.S. Court of Claims. Churchill, supra note 309, at 147. It is also important to note that the ICCA brought about some internal conflict between tribal members who wished to settle the claims and those who wished a “full accounting by the United States of its illegal acts against the tribe.” DELORIA, supra note 23, at 226-28. 316. See infra Part VI. 317. The initial draft of the ICCA was largely Cohen’s product. After it was introduced before the House Indian Affairs Committee, it was revised, however, to incorporate the ideas of Ernest Wilkinson, who worked with Cohen, and to work out a series of amendments that the members of the House and Senate Indian Affairs Committees suggested. LIEDER & PAGE, supra note 315, at 62-68. The tension between his eagerness to help Indian tribes and Congress’s intent to terminate their special status ultimately led Cohen to resign, see infra Part VI. In the following years, he acted as consultant to a consortium of law firms that pooled their resources to explore legal questions common to tribal claims. LAZARUS, supra note 310, at 218.

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B. Comparative Pluralism Like his ideal of systematic pluralism, Cohen’s comparative pluralism embraced the plurality of value systems, but rather than forcing them into one encompassing mass, it focused on the possibility of communication, dialogue, and translation between and among distinct systems. The understanding of any proposition “in the context of its own field,” Cohen would write in the early 1950s, would allow individuals to “translate the proposition into language that will convey the same informational content in any other value field [they] understand.”318 This, he further explained, would allow individuals not only “to uncover the inarticulate value premises” of themselves and of others, but also “to understand the similarities and dissimilarities that exist between any two value perspectives,” and thus to become more tolerant of “cultural diversities.”319 The possibility of translation (and dialogue) depended, however, on human agency. The main drawback both of the IRA and of the Handbook was indeed their reliance, apparent in many pluralist projects, on humanistic experts—dedicated to democracy and the decentralization of bureaucratic power—to lead the transformation toward a pluralist society.320 More recently, Vine Deloria has similarly noted that even under the supervision of the “pro-Indian” Department of the Interior, the Handbook did not always “represent a neutral or even pro-Indian point of view.”321 “People in those days,” Deloria explained, “simply could not understand that racial minorities, especially Indians, would have their own interpretation of historical events and legal rights.”322 Many “important interpretations of policy development, statutes, and case law,” according to Deloria, retained “a definite federal bias in that no question [was] ever raised as to whether federal action [sic] were proper or whether or not the federal government violated previously agreed upon principles of the federalIndian relationship.”323 In the mid-1940s, however, the intellectual faith in experts and, more broadly, in the social sciences declined.324 The strength of 318. Felix S. Cohen, Field Theory and Judicial Logic, 59 YALE L.J. 238 (1950), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 121, 151. 319. Felix S. Cohen, The Reconstruction of Hidden Value Judgments: Word Choices as Value Indicators, in SYMBOLS AND VALUES 545, 561 (Lyman Bryson ed., 1954); see also Felix S. Cohen, The Vocabulary of Prejudice, 19 FELLOWSHIP 5 (1953), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 429, 435. 320. Cf. Everett Helmut Akam, Pluralism and the Search for Community: The Social Thought of American Cultural Pluralists (1989) (unpublished Ph.D. dissertation, University of Rochester) (on file with University Microfilm International). 321. Deloria, supra note 21, at 964. 322. Id. 323. Id. 324. See generally HORWITZ, supra note 2, at 213-46.

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American democracy, Cohen wrote then, was in the recognition that government was not “a matter of wisdom, technique, or efficiency,” but “a matter of right,” a right which depended upon diverse human purposes.325 Government, in short, was “a matter chiefly of human purpose” and each person was “a more faithful champion of his own purposes than any expert.”326 Though, as Cohen also noted, governmental power often created “in its holders aspirations that [conflicted] with those of the rest of society.”327 In retrospect, Cohen disavowed his initial assessment of the enthusiasm in the Department of the Interior.328 He suggested that the faith in expertise, which prevented Indian self-government, amplified and was augmented by what Ralph Barton Perry (Cohen’s mentor at Harvard) labeled “the egocentric predicament”—that is, the fact that each person views the world “through his own eyes and from his own position,” and finds it difficult, without “a certain amount of sophistication to realize that the vision of others who see the world from different perspectives is just as valid . . . .”329 In the mid-1940s, Cohen suggested that the “bureaucratic mind” lacked such sophistication.330 Each division in the Department—that is, Education, Forestry, Credit, and Law and Order—Cohen argued in 1949, was in favor of self-government in general, but opposed to it in the field over which the division itself had jurisdiction. Experts, he explained, were reluctant to give up control over matters with which they were concerned, especially when they disagreed with tribal decisions. To protect against the possibility that such tribal decisions would become law on the reservations, these experts imposed limits on selfgovernment.331 Expertise, Cohen’s analysis implied, could not cultivate tolerance. Instead, his writings in the mid-1940s emphasized the ability of individuals and groups to actualize their destiny. “The most important task” of his generation, Cohen wrote in 1945, was “that of finding patterns by which men who differ in race, religion, and economic outlook may live in peace and contribute to each other’s prosperity.”332 Yet, while in the Handbook Cohen envisioned the sovereign state as the force behind social integration,333 in 1949 he suggested that it

325. Cohen, Colonialism, supra note 282, at 369. 326. Cohen, Indian Self-Government, supra note 187, at 313. 327. Cohen, Colonialism, supra note 282, at 369. 328. See supra text accompanying notes 107-08. 329. Cohen, Indian Self-Government, supra note 187, at 308-09. 330. Id. 331. Id. at 309. 332. Cohen, Colonialism, supra note 282, at 364. 333. See supra text accompanying notes 275-89. In particular, see Cohen’s acknowledgment that among the beliefs that supported the Handbook was “a belief that it is the

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was not “the business of the Indian Bureau or of any other federal agency to integrate Indians or Jews or Catholics or Negroes or Holy Rollers or Jehovah’s Witnesses into the rest of the population as a solution of the Indian, Jewish, Negro, or Catholic problem, or any other problem.”334 It was, nonetheless, the duty of the federal government “to respect the right of any group to be different so long as it [did] not violate the criminal law.”335 Seemingly subtle, the shift in Cohen’s rhetoric—from social integration to the promulgation of a group right to be different—is important. As he described them in his writings during the early 1940s, groups had little active role in the act of social integration. The premise, which many pluralists shared, that identity was socially (if not biologically) determined, often implied that the individual and the group were social constructs, stripped of any notion of volition or human agency, whose interests were protected by the government. Instead, Cohen’s comparative pluralism, which focused on dialogue between distinct value systems, emphasized action. Individuals and groups were active agents; they shaped their own destiny and the destiny of others. Though Cohen fully articulated his ideal of comparative pluralism only in the late 1940s, its seeds were planted in his work on the ICCA. Cohen believed that by waiving sovereign immunity and allowing Indian tribes to sue the federal government, the Indian Claims Commission would give Indian tribes an active voice in the present. The voices of Indian tribes, seemingly missing from the Handbook, were amplified in Cohen’s hopes for the ICCA. As the proof of title would often require the testimony of Indians and their experts, rather than authorities external to the tribes, Cohen hoped that the Commission would provide a forum for Indian tribes and individual Indians to tell their side of American history. According to Cohen, the investigatory commission was thus to operate not “on a purely legal level”; it was “to operate as an administrative agency empowered to reach a just solution within broad limits established by law.”336 In his opinion, it was sufficient that Indians proved their aboriginal title to claim damages; they did not need to show a title recognized by the federal government.337 The Commission, Cohen assumed, would duty of the Government to aid oppressed groups in the understanding and appreciation of their legal rights.” Cohen, Author’s Acknowledgments, supra note 286, at xviii. 334. Cohen, Indian Self-Government, supra note 187, at 308. 335. Id. 336. Cohen, Indian Claims, supra note 312, at 272. Ironically, the establishment of an administrative commission also indicated the continuing impact of the trust in experts. 337. E.g., id. at 266-68. On November 25, 1946, Chief Justice Vinson announced that to recover compensation for original title, Indian tribes needed only to identify themselves as entitled to sue, prove their original Indian title to designated lands, and demonstrate that their interest in such lands was taken without their consent and without compensation.

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address “all Indian claims, legal, equitable and moral.”338 If the IRA set out to refute the antiquated policy of assimilation, and the Handbook was about history, the Indian Claims Commission, Cohen believed, would rewrite the future by telling a different narrative; it would give Indian tribes a forum to voice their versions of American history. By providing Indian tribes with a forum to tell their side of American history, Cohen also believed that the Indian Claims Commission would encourage dialogue. In his view, its proceedings were to become exercises in hearing and learning from the testimony of the other. By investigating “the entire field of Indian claims, even for those tribes which may be too poor to hire their own lawyers,” Cohen hoped that the Commission would “conclude once and for all this chapter of our national history,”339 while simultaneously calling attention to it. The legal remedy was meant to bring closure. Yet, it was also intended to memorialize a different historical narrative. At least in the eyes of its drafter, the last product of the Indian New Deal was a genuine attempt to use law as a tool of reconciliation and commemoration. Cohen hoped that the Commission would settle historical acts of political and cultural violence between particular groups while reconstructing new memories, upon which they could build a pluralistic present.340 Thus described, Cohen’s hopes for the ICCA seem both ambitious and extremely naive. A more cynical viewer would describe Cohen’s aims as either blind to the realities of federal Indian law, or as excusing colonization. That the interests of Indian tribes were ultimately impaired supports such charges. Yet, as Part V.C suggests, in the The Court announced that tribes did not need to show that the original Indian title had ever been formally recognized by the United States. United States v. Alcea Band of Tillamooks, 329 U.S. 40 (1946). Though the establishment in the preceding summer of the Indian Claims Commission foreshadowed the decision, its importance did not escape Cohen. As he wrote to Mary-K Morris Bell, who worked with him on the Handbook: You will be happy to learn . . . that the Supreme Court this week handed down a most important decision on Indian claims—I am having a copy sent to you under separate cover—which relies very considerably on a portion of the Handbook that you wrote. It must be very gratifying to you, as it is to me, that the Supreme Court does not agree with some of our critics who made the historical portions of the Handbook an object of particular scorn. It is really a matter of poetic justice that the Department of Justice should have lost an important case on this issue. Letter from Felix Cohen to Mary-K Morris Bell (Nov. 29, 1946), Felix S. Cohen Papers, Box 71, Folder 1132, Yale Collection of Western Americana, Beinecke Library, Yale University. 338. Cohen, Indian Claims, supra note 312, at 272. 339. Id. 340. Ironically, as Vine Deloria has demonstrated, in practice, government attorneys (among them some of the drafters of the Act) transferred all the procedures and theories of the Court of Claims to the Commission, hence transforming it into a court and eliminating the flexibility that Cohen hoped to achieve by creating an investigatory commission. See generally DELORIA, supra note 23, at 222-26.

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mid-1940s, Cohen wanted to believe that the Commission would benefit Indian tribes;341 personally, he needed to believe in the possibility of dialogue and coexistence. Determined to assert the feasibility of his ideal of comparative pluralism, Cohen found evidence to support it in the history of race relations in America. Like the IRA and the Handbook that preceded it, the ICCA, in short, reflected a set of personal and intellectual goals. Unfortunately, the interests of Indian tribes were often lost in this web. C. “How We Bought the United States”: The ICCA in Perspective In January of 1946—anticipating the passage of the ICCA in the late summer of 1946—Cohen published an article that baffled his colleagues. Titled How We Bought the United States,342 it stressed the “historic fact . . . that practically all of the real estate acquired by the United States since 1776 was purchased not from Napoleon or any other emperor or czar but from its original Indian owners.”343 In a paragraph that was omitted in the original publication Cohen emphasized that the record of dealings with Indians had its dark pages. Americans had driven “hard Yankee bargains;” they often did not make the payments they promised; they did not always respect the boundaries of lands that the Indians reserved to themselves or other promises they made to the Indians in return for their land. Yet, Cohen stressed, whenever Congress was apprised of such deviations, “it [had] generally been willing to submit to court decisions the claims of any injured Indian tribe. And . . . to make whatever restitution the facts supported for wrongs committed by blundering or unfaithful public servants.”344 No nation, Cohen proclaimed, had “set for itself so high a standard of dealing with a native aboriginal people,” or had been “more self-critical in seeking to rectify its deviations from those high standards.”345 Many criticized Cohen for downplaying the darker side of America’s dealings with Indian tribes.346 “I might be disposed to wonder whether you have not placed too high a value upon the goods and services with which we have supplied the Indians in certain circum341. To a limited extent, the establishment of the Indian Claims Commission benefited Indian nations. See generally Churchill, supra note 309. 342. Cohen, Original Indian Title, supra note 274, at 279-88; see also supra text accompanying note 297. The material was also presented in a speech to the Indian Rights Association. Letter from Felix Cohen to John Collier, United Nations Assembly, England (Jan. 11, 1946), Felix S. Cohen Papers, Box 65, Folder 1041, Yale Collection of Western Americana, Beinecke Library, Yale University. 343. Cohen, Original Indian Title, supra note 274, at 280. 344. Id. at 288. 345. Id. 346. See generally correspondence in Felix S. Cohen Papers, Box 65, Folder 1041, Yale Collection of Western Americana, Beinecke Library, Yale University.

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stances,” Harold Ickes wrote to Cohen.347 “I wonder,” Ickes added, “whether you have not been too optimistic in your averments as to our fairness.”348 Having known Cohen to be “more disposed to discover wrongs and insist upon their being righted” than to take “a complaisant point of view,” Ickes concluded, nonetheless, that “the article was a good one.”349 “I only hope,” he noted, “that our record is as fair as you present it.”350 Ickes clearly recognized Cohen’s goals. Like the IRA and the Handbook, in Cohen’s view, the ICCA was meant to empower Indian tribes, and he employed every piece of historical evidence to support (or de-radicalize) its underlying assumptions—that is, the postulates of his ideal of comparative pluralism: agency, dialogue, and coexistence. As he did when he sought to defend his socialist and systematic pluralism, at least on its face, Cohen wrote How We Bought the United States to demonstrate that his ideal of comparative pluralism was already an element of the reality of race relations in America. In the early 1940s, the terminology of conquest advanced Cohen’s ideal of group rights. In the mid-1940s, however, social, political, and intellectual conditions made an argument about treaties more appealing. How We Bought the United States replaced the fiction of conquest, which the Handbook arguably promoted, with a “contractual” approach.351 If in the Handbook Cohen argued that a long line of conquerors recognized Indian rights, his writings in the mid-1940s suggested that Indians were fortunate to have their needs recorded in abundant treaties. The different legal rules to which tribes were sometimes subjected, Cohen stressed, were the fruits of treaties, contracts, and statutes that Indians were able to secure from the federal government. The peculiar status of Indian tribes was thus not a diminution of full citizenship (a claim, which, according to Cohen, bureaucrats used to defend the erosion of such unique rights in order to make Indians “equal” citizens).352 Rather, it was an addition to full citizenship. Reiterating, with respect to treaties, the argument he had made in the Handbook, Cohen emphasized that without the recognition of Indian rights by earlier generations, there would have been no problem of Indian claims. Wrongs never create rights, he 347. Letter from Harold Ickes to Felix Cohen (Jan. 17, 1946), Felix S. Cohen Papers, Box 65, Folder 1041, Yale Collection of Western Americana, Beinecke Library, Yale University. 348. Id. 349. Id. 350. Id. 351. For a contemporary contractual approach, see the discussion of “treaty federalism,” in BARSH & HENDERSON, supra note 29, at 279-87. 352. Felix S. Cohen, Indians Are Citizens, 1 AM. INDIAN 12 (1944), reprinted in THE LEGAL CONSCIENCE, supra note 6, at 253. Excerpts were reprinted in WALTER M. DANIELS, AMERICAN INDIANS 103-07 (Reference Shelf Series 29, no. 4, 1957).

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wrote. Indeed, according to Cohen, there was “no problem of Negro Claims for the uncompensated labors of two and one-half centuries of slavery, because the Negroes had no legal rights during the period of slavery.”353 The fact that Indian claims were considered a “problem” thus indicated not only that wrongs had been committed against Indians, but also “that Indians [had] always occupied a high and protected position in the law of the land.”354 It is easy to challenge Cohen’s simplistic theory of race relations.355 It would be a mistake, however, to assume that Cohen was oblivious to the darker side of the relationship between Indians and non-Indians. He wanted his audience to recognize, nonetheless, that throughout American history, Indians were neither slaves nor victims; they were active agents, indeed sovereign peoples, with histories, traditions, and legal systems of their own, coexisting with the American system. They accepted the presence of non-Indians, they were capable of dealing with them, and they protected their own interests. In Cohen’s opinion, the fact that Indians were able to deal with American settlers also suggested that dialogue and translation between different systems were possible—that comparative pluralism was feasible. When he wrote How We Bought the United States, I wish now to suggest, Cohen needed to believe that the ICCA merely revived an age-old tradition, a tradition premised on coexistence. Cohen’s work in the mid-1940s was informed by his concerns about the events in Europe and their potential ramifications in the United States. Throughout the late 1930s and early 1940s, Cohen saw what he described as “[t]he common beliefs that have held us together as a nation, the moral and intellectual foundations of our democracy” being “subjected . . . to sustained attacks from totalitarian quarters.”356 Cohen’s different interpretations of pluralism offered internal critiques of the American way of life. Yet, like many Jewish intellectuals, Cohen was determined to rebut comparisons between the history of race relations in America and totalitarianism in 353. Cohen, Indian Claims, supra note 312, at 268. 354. Id. 355. Indeed, recent scholarship on reparations offers a different argument. E.g., Symposium, 40 B.C. L. REV. 385 (1998); Adrienne D. Davis, The Case for United States Reparations to African Americans, 7 HUM. RTS. BR. 3 (2000). 356. Felix S. Cohen, Foreword to COMBATING TOTALITARIAN PROPAGANDA: A LEGAL APPRAISAL i (Felix S. Cohen ed., 1944) [hereinafter Cohen et al., COMBATING TOTALITARIAN PROPAGANDA]. This work originally appeared as three articles: Felix S. Cohen & Edith Lowenstein, Combating Totalitarian Propaganda: The Method of Suppression, 37 ILL. L. REV. 193 (1944); James E. Curry, Felix S. Cohen & Bernard M. Newburg, Combating Totalitarian Propaganda: The Method of Exposure, 10 U. CHI. L. REV. 107 (1943); and Lucy M. Kramer & Felix S. Cohen, Combating Totalitarian Propaganda: The Method of Enlightenment, 27 MINN. L. REV. 545 (1943). The studies were carried out by the Institute of Living Law, “a non-profit agency engaged in socio-legal research in the problems of democracy.” Cohen et al., COMBATING TOTALITARIAN PROPAGANDA, supra, at 8.

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Europe. In a series of articles that he published in the early 1940s, and in a handbook on totalitarian propaganda357 that he coauthored with several colleagues, Cohen thus called attention to the great American democratic achievements in the field of minority rights. “The propaganda assaults of Nazism, Fascism and Communism have been skillfully organized and lavishly financed,” Cohen wrote in the foreword to Combating Totalitarian Propaganda.358 “With complete disregard for the canons of ordinary decency and honesty, the purveyors of totalitarian propaganda have insidiously and persistently sought to undermine loyalty to the American way of life.”359 Ironically, in an effort to combat totalitarian propaganda, Cohen’s writings on the ICCA similarly ventured into propagandist aims. “I have written up the story of ‘How we Bought the United States,’” Cohen wrote to the editors of Collier’s, “in not too technical terms and illustrated the piece with a map of the United States showing the various Indian cessions.”360 Amidst growing concerns about the treatment of minority groups, Cohen noted, he wanted to call attention to “the story of our land dealings with the Indians,” especially since most Americans were “quite unfamiliar with the basic facts on this subject and accept[ed] without question the myth that Indian land rights were ruthlessly disregarded in the growth of our country.”361 Publishing the piece, Cohen believed, should help in the war against totalitarian propaganda. “Possibly,” he wrote to John Collier, who was then at the United Nations Assembly in England, “this piece will help you, as an American diplomat abroad, to live down the bad name of the United States in the field of native affairs.”362 At least, Cohen hoped, it would refute the assertions of “Jap, Nazi and Fascist propagandists [who] lost no time in pointing out that what their countries were doing in Asia, Africa and Europe was no different from what the United States did years ago in taking a continent from the Indians in the name of a superior race.”363

357. Cohen et al., COMBATING TOTALITARIAN PROPAGANDA, supra note 356. 358. Id. at i. 359. Id. 360. Letter from Felix Cohen to Editors of COLLIER’S (Jan. 26, 1945), Felix S. Cohen Papers, Box 65, Folder 1040, Yale Collection of Western Americana, Beinecke Library, Yale University. 361. Id. 362. Letter from Felix Cohen to John Collier, United Nations Assembly, England (Jan. 11, 1946), supra note 342. 363. Cohen, How We Bought the United States, supra note 297, at 22.

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“This is the way so much else about Indians and about all dependent peoples could be put across,” Collier replied with approval.364 Cohen aimed his work not only at totalitarian propagandists outside the United States, but also at those who voiced racial antagonism—against Indians, blacks, Jews, or any other cultural group—in America. Asserting that the ideals of the American Revolution guaranteed to Indians equal citizenship, Cohen concluded that discrimination against them, as well as against other groups, deviated from American standards. Cohen well knew that the ideals he ascribed to American life were not always carried out. “I probably overstated the high standards embodied in our treaties and statutes,” he confessed to Ickes, and the omission of darker paragraphs by the editors created an even more exaggerated picture.365 Perhaps, he added, “twelve years among the bureaucrats have made me less astute to criticize our Indian record than I should be.”366 His goal, Cohen admitted, was to counteract opposition to “righting Indian wrongs,” objections that were often founded “on the mistaken idea that we have consistently robbed the Indians of all they owned and that laying down any higher standard of public conduct now would be unprecedented, revolutionary, and terribly expensive.”367 “[B]y bringing to public attention some of the better side of our Indian dealings,” he hoped to put the “program . . . for general Indian claims legislation in a more appealing setting.”368 At any rate, Cohen emphasized: [I]n my own dealings with Congressmen and others in public life I have found much illumination in a saying of Epictetus: “Everything has two handles: one by which it may be borne, another by which it cannot. If your brother acts unjustly, do not lay hold on the affair by the handle of his injustice, for by that it cannot be borne; but rather by the opposite, that he is your brother, that he was brought up with you; and thus you will lay hold on it as it is to be borne.”369

Perhaps, Cohen concluded his letter to Ickes, “even an overoptimistic commentary on the high standards set by our Indian legis-

364. Box 65, versity. 365. Box 65, versity. 366. 367. 368. 369.

Letter from John Collier to Felix Cohen (Jan. 18, 1946), Felix S. Cohen Papers, Folder 1041, Yale Collection of Western Americana, Beinecke Library, Yale UniLetter from Felix Cohen to Harold Ickes (Jan. 22, 1946), Felix S. Cohen Papers, Folder 1041, Yale Collection of Western Americana, Beinecke Library, Yale UniId. Id. Id. Id.

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lation may prove helpful in arousing critical attention to lapses from those standards.”370 Cohen’s hopes were transparent. With the events in Europe, on the one hand, and growing opposition to federal Indian policy, on the other hand, Cohen wanted Americans to adopt his ideal of comparative pluralism as the only alternative to totalitarianism. As early as 1924, Horace Kallen indicated that “[t]he alternative before Americans [was] Kultur Klux Klan or Cultural Pluralism.”371 The latter, according to Kallen, was possible “only in a democratic society whose institutions encourage individuality in groups, in persons, in temperaments, whose program liberates these individualities and guides them into a fellowship of freedom and cooperation.”372 Faced with totalitarianism in Europe and growing critiques of the Indian New Deal at home, Kallen’s pointed alternative became for Cohen a matter of life and death. He needed to believe that Americans had already chosen between Kallen’s alternatives—that they preferred cultural pluralism, or what he developed into comparative pluralism, to Kultur Klux Klan, and democracy to totalitarianism. Establishing American standards was the aim both of How We Bought the United States and of the ICCA. In a world where victims were many, where force and violence abundant, where genocide became an aspect of modernity, the preservation of diverse cultures seemed the only alternative to total annihilation. The original owners of America, who reached agreements to preserve their traditions with the immigrants to the new world, proved, in Cohen’s view, the feasibility of his ideal of comparative pluralism, an ideal that endorsed cultural pluralism not as a separatist ideology, but as grounds for dialogue and inclusion. By emphasizing the success of earlier cultural dialogues, Cohen hoped to provide an incentive for agreements in postwar America: between “whites” and “reds”; between old inhabitants and European immigrants; and maybe even globally. In the aftermath of World War II, in short, Indian tribes taught Cohen what he rejected in 1933, but was willing to admit in 1946—that the preservation of cultural traditions, one’s own and others, was liberating.373 Unfortunately, Cohen’s new pluralistic ideal stood in sharp contrast to what was happening after the war in the Department of the 370. Id. 371. HORACE M. KALLEN, Postscript—To Be Read First—Culture and the Ku Klux Klan, in KALLEN, CULTURE AND DEMOCRACY, supra note 49, at 9, 43. 372. Id. 373. Throughout the early twentieth century, many second-generation European immigrants, who were “upwardly mobile and ready to cast off the immigrant past,” nonetheless, “sought to maintain their ethnic identity, which they reinforced by creating Americanized forms of traditional institutions.” LYNN DUMENIL, THE MODERN TEMPER: AMERICAN CULTURE AND SOCIETY IN THE 1920S, at 253 (1995).

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Interior. It would be futile to assess whether Cohen’s failure to admit this contrast, and include in the ICCA legal mechanisms to address it, cost Indian tribes some of their land claims. Instead, as Part VI suggests, we may wish to use Cohen’s encounters with pluralism to reflect on our own attempts to devise a plural polity. VI. BEYOND THE INDIAN NEW DEAL Throughout the first half of the twentieth century, pluralists, as Cohen’s story manifests, struggled to mediate the tensions between their situated frames of reference, their dreams and aspirations, and their pluralist epistemology. Due to the unique personnel composition of the Department of the Interior,374 the Indian New Deal reached further than any other experiment in transforming theories of pluralism into real life reform. Despite their faults, the legislative and administrative products of the Indian New Deal made significant contributions to federal Indian law. The IRA recognized the importance of self-government, the Handbook sought to empower the legal and cultural traditions of Indian tribes, and the ICCA aimed to create a forum where Indians could challenge common American myths and tell their versions of American history. The onset of the Cold War, however, brought the Indian New Deal under direct attack. The Indian New Deal was grounded in a viable critique of the American way of life and offered a plausible formula for reform. Its orientation toward the group, however, rendered it foreign on the soil of liberal America. As the Cold War spurred mounting attacks on anything remotely socialist (let alone communist), “Making ‘Reds’ of the Indians” was no longer a symbol of reform. It was seen as a threat to American ideals. Beginning in the 1940s, the IRA was criticized as “promoting communistic tendencies and imposing an unwanted primitive tribal state on developing Indians who desired to assimilate.”375 Instead of “a device for Indians to rebuild their shattered communities through local, tribal economic and political organizations,” the Indian New Deal was rapidly seen as “an impediment toward Indian economic and political assimilation.”376 Gradually, pressure increased to abolish the special status of Indian tribes. The desire to obtain Indian lands and resources, objections to Indian religious practices, and the depiction of the Indian New Deal as “socialistic” buttressed the argument that the federal government should discontinue its role as trustee of Indians’ property. Protective guardianship, it was argued, could be detrimental to individual welfare. “Development of the property to full utilization 374. See supra text accompanying notes 51-53, 107-08. 375. Clinton, supra note 55, at 105. 376. Id.

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and encouragement of the owner to accept responsibility for management” were offered as better goals of Indian policy.377 As political pressures to change federal Indian policy increased, the group of reformers that drafted and administered the Indian New Deal fell apart. Collier resigned in 1945, followed by Ickes, who left the Truman Cabinet in February 1946. On December 15, 1947, Cohen sent his letter of resignation to then Secretary of the Interior, Julius A. Krug.378 “You will resign when your freedom . . . is denied,” Norman Thomas had told Cohen back in 1933.379 In 1947, with other disillusioned New Deal colleagues, as well as like-minded Indians, Cohen came to realize that he would be able to better assist the Indian cause by representing tribes against the government.380 Within a few years, termination became official government policy, aiming to end the special status of Indian tribes.381 As Judith Royster has recently noted, it was “assimilation with a vengeance”382: “Congress withdrew federal recognition, liquidated tribal assets, including the land base, and transferred jurisdiction over Indians to the states. The loss of tribal territory and sovereignty was immediate and com-

377. Michaels, supra note 151, at 1579 (quoting Report of Commissioner of Indian Affairs John R. Nichols (June 30, 1949), reprinted in 2 AMERICAN INDIAN AND THE UNITED STATES: A DOCUMENTARY HISTORY 975 (Wilcomb E. Washburn ed., 1973)). Michael Walch divides the objections to the Indian New Deal into two groups: ideological and economic. Ideological opponents stressed that the Indians’ communal ownership of property was in direct contradiction to the American liberal ideal of private ownership of property; that the Indians’ religious practices, which were encouraged by the IRA, promoted heathenism; and that the BIA’s control on many reservations denied freedom to individual Indians. According to these opponents, to make Indians “equal citizens,” these aspects had to be changed. Opponents who emphasized economic grounds stressed the growing competition for natural resources in the postwar years and urged the opening of Indian lands for private development. The committee responsible for Indian affairs in Congress included many members from Western states, where the pressure from developers and private businesses was particularly insistent. It is important to recognize, however, that objection to the IRA came not only from non-Indians. Some Indians wished to escape the pervasive control of the BIA. Assimilated Indians, in turn, wanted a share of tribal resources. Only a minority of Indians, nonetheless, supported termination. Michael C. Walch, Note, Terminating the Indian Termination Policy, 35 STAN. L. REV. 1181, 1185-86 nn. 24-25 (1983). 378. Cohen wrote: When I came to work for Interior in October of 1933 it was with the expectation that I would finish, in a year or so, the work I came to do, and then return to private practice and teaching. The many kindnesses that have been extended to me in this work by my colleagues, and its fascinating variety and never-ending opportunities for defense of the public interest, have made leaving very difficult. I have now overstayed my appointed tour of duty by thirteen years and, I fear, largely outlived my usefulness in the Department. Cohen, Remarks at Testimonial Dinner, supra note 119, at 19. 379. Letter from Norman Thomas to Felix Cohen (Nov. 14, 1933), supra note 106. 380. D’arcy McNickle, Remarks, Testimonial Dinner for Felix Cohen, supra note 98, at 13-14. 381. H.R. Con. Res. 108 (1953); see also DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 10, at 234. 382. Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 18 (1995).

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plete.”383 In 1958, five years after Cohen’s untimely death, a new version of the Handbook of Federal Indian Law eradicated the pluralistic characteristics of the original edition; instead, it suggested that Indians were wards of the state.384 The 1950s also witnessed the emergence of a new theory of pluralism: a descriptive social theory purportedly with no ethical conviction. It was inspired, as Edward Purcell showed, by a rejection of all absolutism including any morally based pleas for social reform. The American ideal of democracy became a balancing theory. America was composed of interest groups, and group conflict reflected the dispersal of political power. Furthermore, the delicate balance between groups was presumed to be preserved by existing political institutions and cultural consensus, a “consensus rooted in the common life, habits, institutions, and experience of generations.”385 The status quo became a normative theory.386 Instead of seeking policies that would promote diverse interests, scholars directed their efforts toward finding a “morality of process” independent of results. Robert Dahl’s interest group pluralism was the ultimate example.387 Interest group pluralism sought to evade the pluralist dilemma, that is, the need to determine the normative limits of a commitment to pluralism. On the one hand, to allow the state to exercise power over diverse groups risked imposing one’s own, concededly partial interests and beliefs, in the name of a general, public good. On the other hand, the alternative of deferring to groups risked moral relativism, maybe even nihilism.388 At least since Oliver Wendell Holmes challenged the description of law as a body of natural and neutral rules,389 legal scholars had struggled with this dilemma. Faced with diverse social and cultural interests, and hence with a variety of visions of what law ought—as a social and political matter—to be, many adopted one system of beliefs and treated it as the primary guiding light in their analysis of law. In the 1930s, many legal realists, for example, offered some form of “policy analysis” assuming that “there were correct—liberal—answers to the hot legal questions of the day but that conservative judges couldn’t be expected to reach

383. 384. 385. 386. 387.

Id.; see also Walch, supra note 377, at 1182-86. 1958 HANDBOOK, supra note 33. PURCELL, supra note 284, at 255. See generally id. at 253-66. See DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 2; DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES, supra note 2. 388. Cf. Ernst, supra note 46. 389. Oliver Wendell Holmes Jr., The Path of the Law, Address at the Dedication of the New Hall of the Boston University School of Law (Jan. 8, 1897), reprinted in 110 HARV. L. REV. 991 (1997); see also HORWITZ, supra note 2, at 4, 139-42; Robert W. Gordon, The Path of the Lawyer, 110 HARV. L. REV. 1013 (1997).

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them.”390 In the 1950s, interest group pluralism, and the legal process school that was informed by it, adopted a different approach. Instead of endorsing any particular vision of the good, these process theorists found refuge in creating conceptions of neutral processes in which different groups supposedly interact, compete, and trade ends.391 This turn to process attracted criticism, however, from those who saw law as necessarily embracing substantive norms.392 More recently, critical legal studies, the new institutional economics, and feminist legal theory, to name a few, have sought to direct legal discourses toward substance and away from process.393 The current resurgence of formalism394 keeps the debates alive. In this context, Cohen’s experience in the New Deal is of enduring importance. Inspired by early twentieth-century normative theories of pluralism, each of the models Cohen devised sought to accommodate diversity without either promoting certain moral absolutes or succumbing to moral relativism. Cohen’s socialist pluralism, which informed his plans for the IRA, urged the distribution of sovereignty to political groups, including Indian tribes, as a means of encouraging group self-determination. His systematic pluralism, which influenced the writing of the Handbook, advocated the inclusion of diverse cultural traditions under an all-encompassing (universal) legal system. Finally, comparative pluralism, which was already reflected in Cohen’s hopes for the ICCA, emphasized the possibility of exchange between and among different value systems. Realizing that we might never be able to articulate a universal ideal that would endorse all particular systems, comparative pluralism sought to find legal mechanisms that would allow the coexistence of distinct value systems. These models were not perfect. The IRA ended up imposing a universal structure of government on all Indian reservations. The Handbook neglected to acknowledge the importance of Indian voices, while the ICCA was hardly more than symbolic in its remedies. The significance of Cohen’s experience in the New Deal reaches, however, beyond the ultimate success or failure of the policies he devised. Cohen’s experience illustrates that models of pluralism and laws that are informed by them are sites for the construction and negotiation of cultural, social, and political ideologies. In siting pluralism, his story also illustrates how mapped in the body of law are struggles with identity. It further shows that even as formalistic legal structures 390. KENNEDY, supra note 6, at 88. 391. See supra text accompanying note 2. 392. See, e.g., Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Themes, 89 YALE L.J. 1063 (1980). 393. See, e.g., THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (David Kairys ed., 1998). 394. See, e.g., Symposium, Formalism Revisited, 66 U. CHI. L. REV. 527 (1999).

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cannot accomplish the goals of accommodating diversity, pluralism might flourish in their peripheries. Each of the models devised by Cohen reflected his changing construction of “the Indian problem,” and his sense as a Jewish American of the tensions between particularism and universalism. Cohen’s attraction to socialist pluralism was motivated by his wish as a Jewish American to emphasize the insignificance of racial and ethnic differences. Informed by his experience in administering the IRA, Cohen came to accept the importance of diverse cultural traditions. Yet, consistent with his desire to be included in the polity, his systematic pluralism endorsed cultural pluralism but stressed that all systems would ultimately become a singular cosmopolitan whole. In the aftermath of World War II, Indian tribes became a symbol for the possibility that cultural traditions, the Jewish tradition among them, could be—in fact should be—cherished and preserved. Comparative pluralism thus celebrated cultural pluralism and embraced dialogue as a foundation for coexistence. As if admitting his personal transformation, two years after he left the Department of the Interior, Cohen concluded a commentary on Indian self-government with the following paragraph: The issue we face is not the issue merely of whether Indians will regain their independence of spirit. Our interest in Indian selfgovernment today is not the interest of sentimentalists or antiquarians. We have a vital concern with Indian self-government because the Indian is to America what the Jew was to the Russian Czars and Hitler’s Germany. For us, the Indian tribe is the miners’ canary and when it flutters and droops we know that the poison gasses of intolerance threaten all other minorities in our land. And who of us is not a member of some minority?395

The “rise, fall and return of pluralism”396 in the twentieth century may reflect law’s inadequacy in the face of political, social, and cultural chasms. Every reiteration, nonetheless, creates sites in which pluralism flourishes, peripheries where practice challenges theory. Since Cohen used it, many have turned to the image of the miners’ canary to illustrate the importance of tolerance. As vital is Cohen’s pointed question, “And who of us is not a member of some minority?” Because each of us is a member of some minority, our identities are constructed and negotiated as we seek to accommodate diversity. A commitment to pluralism is both political and personal. It requires an admission that the diverse cultural, political, economic, and social interests that characterize our society are grounded in multiple value 395. Cohen, Indian Self-Government, supra note 187, at 313-14. 396. For this terminology, though in a different context, see Peter F. Drucker, The Rise, Fall and Return of Pluralism, WALL STREET J., June 1, 1999, at A22.

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systems, and it requires faith in the possibility of social integration, inside and outside the law. This is not to suggest that the celebration of diversity is equivalent to an endorsement of moral relativism. Indeed, the tensions that were reflected in the Indian New Deal— between one’s frames of reference and one’s commitment to pluralism—are inherent in pluralism as a normative theory. The endorsement of all pluralities and differences as morally and politically valid is impossible. Still, in order to devise a plural polity, in order to thrive, we must make diversity the starting point for reflection and action, and aim to discern—through dialogue and communication— universal principles that can yield a point of view acceptable to all.397 Our treatment of different groups (and individuals), as Cohen so aptly described it, is the litmus test of our democracy; it reflects “a set of beliefs that forms the intellectual equipment of a generation.”398 It is up to us to develop the content of such beliefs.

397. See Benhabib, supra note 285, at 81; HILARY PUTNAM, WORDS AND LIFE 185-86 (James Conant ed., 1994) (arguing that pluralism does not deny a universal ethics). 398. Cohen, Author’s Acknowledgments, supra note 286, at xviii.

DESCENT AVIAM SOIFER* Dalia Tsuk’s article substantially enriches our understanding of the multiple forms and complexities of pluralism.1 She achieves this admirably through her focus on Felix Solomon Cohen and the Indian New Deal. Her cogent elaboration of Cohen’s changing notions underscores how entangled ideas about pluralism remain today. Succinctly placing Cohen’s evolving ideas within the context of his own times and his personal life, Tsuk wisely reminds us of how scholars of the first half of the last century both anticipated and could not resolve the most basic issues within the continuing debate about pluralism.2 Indeed, one might find it hopeful that the tension between particularism and universalism apparently is and is likely to remain ultimately unresolvable in the modern world.3 The dangers and frustrations of living within this very tension may help to explain— though not to excuse—Cohen’s willingness to bend or fracture history to fit another purpose. Cohen’s 1946 article, How We Bought the United States,4 for example, may have been intended as a useful means towards what Cohen perceived as the compelling end of increasing popular tolerance for minorities.5 Such whitewashing of the past also provides a sad epigraph to Cohen’s personal transformation; however, as Tsuk suggests, How We Bought the United States cuts against Cohen’s own significant and largely enlightened place in the troubled history of white-Native American relations.6 In fact, Cohen’s abuse of history for what he apparently viewed as admirable, tolerance-enhancing pragmatic goals underscores the importance of Cohen’s own rhetorical question—“And who of us is not a member of

* B.A., 1969; M. Urban Studies, 1972; J.D., 1972, Yale University. Many thanks to the FSU staff for their noteworthy patience and assistance with this Essay. Readers who are interested in this author’s more detailed analysis of some of the core constitutional issues might wish to consult Aviam Soifer, A Very Troubling Supreme Court Precedent: Race, Hawaii and History, at http://www.tompaine.com/history/2000/04/20/1.html. 1. Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 FLA. ST. U. L. REV. 189 (2001). 2. Id. at 201-02. 3. See id. at 264-66. Tsuk explains that she uses “‘pluralism’ as a noun to refer to a commitment to devising a plural polity.” Id. at 190 n.1. 4. Felix S. Cohen, How We Bought the United States, COLLIER’S, Jan. 19, 1946, at 22, reprinted with adaptation in Felix S. Cohen, Original Indian Title, 32 MINN. L. REV. 28 (1947), and reprinted in THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN 273, 279-88 (Lucy Kramer Cohen ed., 1960). 5. Id. 6. See Tsuk, supra note 1, at 254-63.

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some minority?”7 Yet that insight also suggests the ongoing, damnable difficulty inherent in determining what we should do about the myriad of minority statuses and pluralisms in which we actually live our lives. One of the most significant contributions Tsuk makes is her cleareyed description of Cohen’s upbringing and its hothouse New York City context.8 The importance of this personal biography for Cohen’s role and his changing ideas suggests the first of two key meanings of descent: one’s immediate family. A second implicates a broader meaning of descent—the sense of being born into a group or groups. Being a Jewish American growing up in the first decades of the twentieth century was deeply important to Cohen, though at first he seems to have sought to escape this particular identity through socialist universalism.9 Felix initially followed his father, Morris Raphael Cohen, a famous philosopher and teacher at City College of New York during that school’s heyday as a crucible for high-achieving sons of immigrants.10 But Felix’s later movement from personal suppression of group identity to what Tsuk describes as “comparative pluralism” seems a significant form of rebellion against his father’s denigration of group identity, even perhaps an attempt by Felix to identify more directly with his historic lineage.11 The complex intersection of biographical, sociological, and anthropological senses of descent, exemplified in the expansive context of Felix Cohen’s words and deeds, also suggests fundamental, unsettled contemporary issues concerning the appropriate heft of race, tribe, and ancestry. Felix Cohen’s major contribution to American law was anchored directly in his gradual awakening to the fact that American Indian tribes possessed unique cultures and many varieties of sovereignty.12 Professor Tsuk does a fine job of tracing his learning curve, and its impact on the federal legal arrangements concerning Native Americans that Cohen helped to engineer. Moreover, the federal policy of termination that quickly followed Cohen’s tenure in Washington provides tragic twentieth-century evidence that the trajectory of governmental policy towards Native Americans hardly has been consis7. Id. at 267 (quoting Felix S. Cohen, Indian Self-Government, 5 AM. INDIAN 3 (1949), reprinted in THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN, supra note 4, at 305 [hereinafter Cohen, Indian Self-Government]). 8. Tsuk, supra note 1, at 209-16. Tsuk’s book-length manuscript, Encounters with Pluralism: The Life of Felix S. Cohen, provides a wonderfully rich elaboration of Cohen as a skeptic, realist, and activist. See Dalia Tsuk, Encounters with Pluralism: The Life and Thought of Felix S. Cohen (unpublished manuscript, on file with author). 9. Tsuk, supra note 1, at 211-15. 10. Id. at 215-16. 11. See id. at 253-55. For a brief discussion of Morris Raphael Cohen’s disparaging account of what he called “communal ghosts,” see AVIAM SOIFER, LAW AND THE COMPANY WE KEEP 72-80 (1995). 12. See Tsuk, supra note 1, at 226-27.

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tently upwards and onwards.13 (To be sure, anyone who considers the history of white-Native American relations seriously cannot be surprised that promises broken, blood shed, and hard-earned lessons quickly and completely forgotten became a key component of public policy during and after the Warren Court era.) The Supreme Court’s direct role in this very sad history has been extensively discussed elsewhere.14 However, awareness of that history underscores the importance of a tragic sense of history quite different from that which prevails within the American mainstream. We ought not to ignore the many stories of declension that both surround us and directly underlie the very ground upon which we delight to stand. An important additional sense of descent implicates decline. This connotation maps a tale of shared mortality as well. In the American scheme, however, declension is only a faint counterpoint to the broadly triumphalist teleological faith that dominates our beliefs. Yet this idea of decline—of descending rather than ascending a staircase, a mountain, or the trajectory of a full life—also entails a familiar theme: our failure to live up to the grand ideals of the basic origin stories of those groups from which we are descended. These origin tales, these mythical and yet foundational accounts of the past, demand careful attention.15 In this respect, sadly, Cohen failed. Specifically, although Cohen was generally a brilliant critical thinker with a wonderfully coruscating sense of realism, his account of the history of Indian relations with white settlers willingly ignored the facts so far as they were known. More generally, even the changing, pragmatic sense of pluralism that Cohen so greatly exemplified never adequately attended to the crucial role of the past in establishing group identities. Brief consideration of two current, interconnected aspects of descent underscores the importance of a crucially sobering element within Dalia Tsuk’s cogent description and discussion of pluralism. I. ANCESTRY, RACE, AND DESCENT It is deeply ironic that Native Hawaiians, in the course of defending the state of Hawai’i’s meager deference to their historic traditions and group identity, had to rely on analogies to the plight and the le13. See id. at 263-65. 14. See, e.g., Symposium, Native American Law, 28 GA. L. REV. 299 (1994) (including a collection and discussion of sources). 15. For an introduction to these issues that is both learned and wise, see MILNER S. BALL, CALLED BY STORIES: BIBLICAL SAGAS AND THEIR CHALLENGE FOR LAW (2000), and, for the context of the suppression of Native American claims within the American constitutional law canon, see Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 MICH. L. REV. 2280 (1989), and Milner S. Ball, Constitution, Court, Indian Tribes, AM. B. FOUND. RES. J. 1 (1987).

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gal treatment of members of Native American tribes.16 Never tribal, Native Hawaiians found little respect and virtually no understanding for their unique culture when a case involving their identity reached the United States Supreme Court. To defend themselves, Native Hawaiians were forced back to the kind of pluralism identified with Felix Cohen’s innovations regarding Native Americans a half century earlier. Even this analogy did not succeed, however, as the United States Supreme Court, last year in Rice v. Cayetano,17 invoked the Fifteenth Amendment18 to invalidate a provision of the Hawai’i Constitution designed to benefit Native Hawaiians.19 In the process of striking down the Hawaiian voting scheme, the Supreme Court simply proclaimed, “Ancestry can be a proxy for race.”20 The Court thereby cast a great shadow of serious constitutional doubt over a broad array of established programs and pending legal claims that seek to help and to recognize the legitimate historic claims of Native Hawaiians.21 The specific provision at issue in Rice restricted the vote for trustees of the state’s Office of Hawaiian Affairs (OHA) to “Hawaiians,” defined as descendants of the peoples who inhabited Hawai’i when Captain Cook first made contact in 1778, and to “native Hawaiians,” defined as descendants of such peoples in at least half their bloodline.22 The first definition mirrored traditional Hawaiian practice, while the second reflected the introduction of the use of blood quantum by the federal government in the 1920s.23 Justice Kennedy’s majority opinion proclaimed that the State of Hawai’i, through its ballot restriction, unconstitutionally “used ancestry as a racial definition and for a racial purpose.”24 Moreover,

16. See Rice v. Cayetano, 528 U.S. 495, 518-22 (2000). 17. Id. 18. U.S. CONST. amend. XV, § 1 (providing that U.S. citizens’ right 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”). 19. Rice, 528 U.S. at 524. 20. Id. at 514. 21. A formal introduction to the legitimacy of such claims is available within Senate Joint Resolution 19 of the 103rd Congress, which was approved on November 23, 1993, to “acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawai’i, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai’i.” S.J. Res. 19, 103d Cong., 107 Stat. 1510 (1993). An immediate ramification of the Rice decision was a blunderbuss constitutional attack on all government-financed Native Hawaiian programs, in Barrett v. Hawai’i, currently pending in Federal District Court in Hawai’i before District Judge David Ezra. 22. Rice, 528 U.S. at 499. 23. See id. at 500-01, 507. 24. Id. at 515. Justice Kennedy wrote for a five-vote majority; Justice Breyer wrote a concurring opinion, in which Justice Souter joined; and Justices Stevens and Ginsburg each filed dissents. For an excellent analysis of the Court’s techniques, and particularly its appallingly sloppy but revealing approach to history, see Chris K. Iijima, Race Over Rice:

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Kennedy asserted, “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”25 Indeed, he continued, “[a]n inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens.”26 But is ancestry really like race, and do either or both concepts differ significantly from the oftcelebrated concepts of lineage and genealogy? It is impossible to believe that the Court’s remarkable, sweeping attack on any inquiry into ancestry actually means what it says. If it did, for example, the method by which states administer passing intestate property ownership would apparently be unconstitutional.27 But the Court’s decision and, even more, its rhetoric reveal an astonishing leap of faith by the Justices. They posit a world in which individual merit always prevails and nobody’s past really matters at all. The Constitution secures respect for the “unique personality” of each and every American. The past is past, and in no way can the past be prologue,28 because winners in the contemporary race of life prevail entirely on account of their merits as individuals and their essential personal qualities. According to the Court, in fact, the Constitution actually forbids consideration of the burdens and benefits that aided either any individual or any group of individuals through descent.29 This is taking “all men are created equal” far more literally than ever has previously been the case.30 It is an entirely deracinated brave new world!31

Binary Analytical Boxes and a Twenty-First Century Endorsement of Nineteenth Century Imperialism in Rice v. Cayetano, 53 RUTGERS L. REV. 91 (2000). 25. Rice, 528 at 517. 26. Id. 27. Presumably, Kennedy’s screed against the use of ancestry is limited to inquiries by the state. Under Shelley v. Kraemer, 334 U.S. 1 (1948), there apparently would be sufficient state action through the judicial administration of probate directly to pose the constitutional dilemma created by the Rice Court’s extremism in pursuit of individualism. But under remnants of the 1866 Civil Rights Act, currently codified at 42 U.S.C. §§ 1981 and 1982, even private use of ancestry might be considered an invalid proxy for race. For an intriguing discussion of the longstanding use of private property to manipulate issues of group identity, see Carol Weisbrod, A Comment on Property and Divorce, 32 CONN. L. REV. 291 (1999). 28. See WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 1, line 248 (Stephen Orgel ed., Oxford Univ. Press 2d ed. 1987) (stating: “What’s past is prologue.”). 29. Rice, 528 U.S. at 517. 30. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 31. “O brave new world” is also from Shakespeare’s The Tempest. SHAKESPEARE, supra note 28, act 5, sc. 1, l. 184. Also in The Tempest is Prospero’s denigration of his innocent daughter Miranda for her lack of knowledge about her lineage and her past: “Art ignorant of what thou art; nought knowing/Of whence I am.” SHAKESPEARE, supra, at act 1, sc. 2, l. 18-19. I discussed some possible thematic and historical connections between that

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Furthermore, the Court’s treatment of Hawaiians is hardly an isolated instance. Just when many scholars and other Americans have come to believe that race may be a social construct that defies scientific classification,32 the Court majority has hardened both its heart and its reliance on a purportedly hard-wired categorization of race in the process of invalidating affirmative consideration of race.33 Yet both the “ancestry” and the “race” sides of the Rice proxy vote are deeply problematic. The Court’s assumption that enough equality has been achieved in Hawai’i tragically hearkens back to the Court’s major role in aggressively legitimating Jim Crow. Now, as then, the Court is insistent that any special care is unconstitutionally paternalistic. Once again, as the Court said to Black laborers who were forced from their jobs by an Arkansas mob in 1906, the Justices think it crucial that no one be treated as “wards of the Nation.”34 Rather, said the Court, the very grant of citizenship both enacts and requires that the nation assume of all citizens, whether they are voluntary or not, that “in the long run their best interests would be subserved, they taking their chances with other citizens in the States where they should make their homes.”35 One need not invoke John Maynard Keynes’s famous attack on faith in the long run36 in order to recognize the bitter irony in the repetition nearly a century later of the 1906 Court’s faith in remand-

play and early colonial American history in Law and the Company We Keep. Soifer, supra note 11, at 7-30. 32. See generally IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) (asserting that races are not biologically differentiated groupings, but rather social constructions); MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990) (asserting that because law is preoccupied with boundaries, it has failed to resolve the meaning of equality for people society views as different); ERIC K. YAMAMOTO, INTERRACIAL JUSTICE, CONFLICT AND RECONCILIATION IN POST-CIVIL RIGHTS AMERICA (1999) (asserting that demographic change in America necessitates a change in thinking about both race relations and racial justice); Jayne ChongSoon Lee, Navigating the Topology of Race, 46 STAN. L. REV. 747 (1994) (arguing that biological definitions of race have no sound basis); Robert Westley, First-Time Encounters: “Passing” Revisited and Demystification As a Critical Practice, 18 YALE L. & POL’Y REV. 297 (2000) (discussing “passing” as the boundary which unlocks the door to racial identity). 33. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Miller v. Johnson, 515 U.S. 900 (1995); Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). 34. Hodges v. United States, 203 U.S. 1, 20 (1906). Writing for a seven-two majority, Justice Brewer invalidated the federal convictions of members of the mob because, in the Court’s view, the Thirteenth Amendment could not support federal power broad enough to vindicate the rights of black laborers. Id. at 18-20. This decision, and many others like it that similarly condemned as unconstitutional whatever the Court perceived to be paternalism, are discussed in Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 L. & HIST. REV. 249 (1987). 35. Hodges, 203 U.S. at 20. 36. “In the long run, we are all dead.” JOHN MAYNARD KEYNES, A TRACT ON MONETARY REFORM 80 (1923).

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ing minority concerns to the tender mercies of the states.37 At a time when the Supreme Court appears to believe that honoring states’ rights and protecting state treasuries was a major concern of the victorious armies and the 39th Congress in the wake of the Civil War, the tendency to invoke false history for some perceived greater good probably should not surprise us. It should still appall us, however. If it does not, then that ennui in itself marks a significant decline, as critical thinking should be combined with, and not in opposition to, moral commitment. II. DESCENT AS TRAGIC DECLINE The information explosion, particularly as undergirded by the Internet, seems to put an extraordinary premium on the velocity and volume with which ideas are disseminated.38 In the name of maintaining standards, we increasingly seem to rely on standardized measures and timed tests. Nuance and complexity, context and relationships have begun to appear too soft and too complicated for our times. In the name of sophisticated, civilized modernity, moreover, we can imagine destroying a village to save it, or refusing to count votes in order to assure that the fundamental interest of citizens in having their votes counted is constitutionally protected.39 The Rice Court’s dystopian vision of a nation in which each individual stands entirely alone, without a past that might matter in any way, resonates much more with Invasion of the Body Snatchers than it does with the profound promises within the “great outlines” of the innovative United States Constitution.40 If we ignore the past, however, we cannot depart from it. If we think we have transcended our roots, we will never be able to escape their stranglehold. It is indeed tragic that Native Hawaiians, a sovereign nation whose people neither sought nor ever accepted American citizenship, were left to argue before the United States Supreme Court that the closest constitutional analogy to their plight was to be found in the situation of Native Americans.41 It is profoundly ironic that the Court’s response in Rice v. Cayetano even rejected that comparison.42 Instead, the Court proclaimed a vigorous version of enforceable, tri37. See Hodges, 203 U.S. at 20. 38. See Clifford Geertz, Life Among the Anthros, N.Y. REV. OF BOOKS, Feb. 8, 2001, at 18. 39. See Bush v. Gore, 531 U.S. 98 (2000). 40. INVASION OF THE BODY SNATCHERS (Republic Pictures 1956). John Marshall described the Constitution as a document of “great outlines” rather than as a “prolix legal code” in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). For a compelling analysis of the Constitution’s affirmative promises, see generally CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS NAMED AND UNNAMED (1997). 41. See Rice v. Cayetano, 528 U.S. 495, 518-22 (2000). 42. Id.

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umphal consensus history as it mentioned the past only in passing. This is how Justice Kennedy concluded his opinion for the Court: When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii.43

That said, screaming eagles and all, there still may be comfort in the knowledge that neither Felix Cohen nor even the Supreme Court can manipulate history definitively. As the historian William Wiecek put it, “oppressed peoples have an acute sense of their past. . . . [T]hey must: it is the crucible of their identity and their cohesion. Without it their present oppression becomes either meaningless or natural.”44 Our general understanding of the plight of the oppressed may ebb and flow. Yet their history will not simply disappear amidst clouds of wishful thinking. Felix Cohen provided a vivid extended metaphor when he likened Indian tribes to the miners’ canary—a bird whose very fragility allowed it to serve as an early warning system for hardier human beings.45 If a solitary caged bird deep in a mine actually were to survive long enough to die of “natural causes,” however, that miners’ canary most likely would leave no descendants.46 Through Dalia Tsuk’s illuminating work, we can find both sobering lessons and some hope in Felix Cohen’s own gradual awakening to the relative great weight of separate pluralisms. Respectfully or not, it is left to us to dissent vigorously from the Court’s insistent evisceration of ongoing, vital lines of descent.

43. Id. at 524. 44. William Wiecek, Preface to the Historical Race Relations Symposium, 17 RUTGERS L.J. 407, 412 (1986). 45. See Cohen, Indian Self-Government, supra note 7, at 313-14. 46. See id.

NOTHING LEFT OF INDOPCO: LET’S KEEP IT THAT WAY! JEZABEL LLORENTE* I. II. III. IV.

V.

VI.

VII. VIII.

INTRODUCTION ..................................................................................................... THE DISTINCTION BETWEEN CURRENT DEDUCTION AND CAPITAL EXPENSE .... INDOPCO’S FAMILY TREE .................................................................................. THE IRS’S AGGRESSIVE POST-INDOPCO POSITIONS ......................................... A. The IRS’s Position in PNC Bancorp ............................................................ B. The IRS’s Position in Wells Fargo ............................................................... C. The IRS’s Position in Hostile Takeovers...................................................... THE IRS’S AGGRESSIVE POST-INDOPCO POSITIONS PROMOTE BAD POLICY .... A. The IRS’s Positions Lack Rationale............................................................. B. The IRS's Positions Violate the Matching Principle................................... C. The IRS's Positions Ignore the Distinction Between Hostile and Friendly Acquisitions................................................................................................... NOTHING LEFT OF INDOPCO ............................................................................. A. PNC Bancorp Places a Restriction on the Separate and Distinct Asset Test ................................................................................................................ B. Wells Fargo Extends the “Origin of the Claim” Doctrine to Create the Direct/Indirect Test...................................................................................... C. A.E. Staley Narrows INDOPCO to Friendly Acquisitions ......................... NOTHING LEFT OF INDOPCO: LET’S KEEP IT THAT WAY! ................................. CONCLUSION ........................................................................................................

277 279 281 284 285 285 287 287 287 288 290 293 293 295 296 300 301

I. INTRODUCTION In 1992, the United States Supreme Court seemingly resolved the contentious issue of whether a target corporation could currently deduct the investment banking fees and costs it incurred when a friendly buyer acquired it. In INDOPCO, Inc. v. Commissioner,1 the Court clearly held that target corporations cannot deduct current investment banking fees and costs when they obtain only future benefits in a merger.2 After INDOPCO, taxpayers began to worry that the Internal Revenue Service (IRS) would require them to capitalize otherwise currently deductible business expenses simply because those expenses yielded some future benefit.3 Although the IRS initially confirmed taxpayers’ fears when it began to extend INDOPCO’s holding, courts responded by limiting * J.D., with High Honors, Florida State University College of Law, 2001; B.B.A., Florida International University, 1998. 1. 503 U.S. 79 (1992). 2. Id. at 88. The Court held that the target corporation, National Starch, could not currently deduct investment banking fees and costs because it obtained future benefits from its merger with Unilever. Id. See also W. Curtis Elliot Jr., Capitalization of Operating Expenses After INDOPCO: IRS Strikes Again, 5 S.C. LAW. 29, 30 (1993). 3. Lee A. Sheppard, The INDOPCO Case and Hostile Defense Expenses, 54 TAX NOTES 1458, 1459 (1992) (“Read broadly, Indopco means that the taxpayer always loses; that many expenditures not encompassed by section 263 must be capitalized because they produce a future benefit.”).

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INDOPCO considerably. Initially, the IRS used INDOPCO’s “deductions are exceptions to the norm of capitalization”4 language in conjunction with the separate and distinct asset test5 to aggressively deny deductions for expenses that taxpayers had otherwise currently deducted. Recently, however, the Third Circuit, in PNC Bancorp, Inc. v. Commissioner,6 applied a stricter version of the separate and distinct asset test.7 Similarly, when the IRS began denying taxpayers’ current deductions for expenses because those expenses created some type of future benefit, the Eighth Circuit, in Wells Fargo & Co. v. Commissioner,8 responded by applying a stricter version of the future benefit test than the Supreme Court applied in INDOPCO.9 Finally, when the IRS refused to distinguish between hostile and friendly takeovers, the Seventh Circuit, in A.E. Staley Manufacturing Co. v. Commissioner,10 ruled that it must.11 However, because INDOPCO remains good law and many circuit courts have yet to address the numerous issues that it raises, taxpayers need additional protection from INDOPCO. Therefore, Congress should direct the Treasury to enact regulations that codify the Third, Seventh, and Eighth Circuit holdings to prevent the IRS from asserting its aggressive post-INDOPCO positions in other circuits. Accordingly, this Comment posits that even though some courts have eased taxpayer concern by limiting INDOPCO to its facts, taxpayers need greater reassurance that other courts will not revive INDOPCO. Part II addresses the differences between current deductions and capital expenses. Part III discusses the law before INDOPCO, as well as the Supreme Court’s INDOPCO opinion. Part IV recounts the IRS’s aggressive positions after INDOPCO. Part V argues that these positions promote poor policy because they lack rationale, violate the matching principle, and ignore the important distinction between friendly and hostile transactions. Part VI describes how courts have contained the IRS’s positions and limited INDOPCO to its facts. Finally, Part VII proposes treasury regulations that cod-

4. INDOPCO, 503 U.S. at 84. 5. Comm’r v. Lincoln Sav. & Loan Ass’n, 403 U.S. 345, 354 (1971) (espousing the separate and distinct asset test, which instructed taxpayers to capitalize an expense that creates or increases the value of a separate and distinct asset). 6. 212 F.3d 822 (3d Cir. 2000). 7. The court found that to be capitalizable, the expense must create a separate and distinct asset and not merely be associated with separate and distinct asset creation. Id. at 830. 8. 224 F.3d 874 (8th Cir. 2000). 9. The Wells Fargo court found that to be capitalizable, the expense must be not only related to a transaction that produces a future benefit, but also directly related to that transaction. Id. at 886. 10. 119 F.3d 482 (7th Cir. 1997). 11. Id. at 489.

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ify the Third, Seventh, and Eighth Circuit holdings to ensure that other courts do not restore INDOPCO. II. THE DISTINCTION BETWEEN CURRENT DEDUCTION AND CAPITAL EXPENSE When a taxpayer incurs an expense, that taxpayer may treat it in one of three ways: (1) as a current deduction; (2) as a depreciable or amortizable capital expenditure; or (3) as a nondepreciable or nonamortizable capital expenditure. Each alternative has different tax consequences for the taxpayer. When a taxpayer treats an expense as a current deduction, that taxpayer may deduct the expense from his or her taxable income.12 When a taxpayer treats an expense as a depreciable or amortizable capital expenditure, he or she takes the expense and spreads it over the useful life of the asset to which it relates.13 When a taxpayer treats an expense as a nondepreciable or nonamortizable capital expenditure, a taxpayer takes the expense and adds it to the basis14 of the asset to which the expense relates.15 When a taxpayer sells the asset, he or she will recognize a gain on the amount realized minus the basis.16 Essentially, the taxpayer gets to deduct the expense when he or she sells the asset because the expense reduces part of the amount realized.17 The Internal Revenue Code (the Code) contains two main sections that helps the taxpayer determine which of the three treatments apply to a particular expense. The first section, § 162(a), states that “[t]here shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.”18 However, a second section of the Code, § 263(a), limits § 162(a). Section 263(a) states: No deduction shall be allowed for—(1) [a]ny amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate . . . [or] (2) [a]ny amount expended in restoring property or in making good the exhaustion thereof for which an allowance is or has been made.19

12. 13. 14. 15. 16. 17. 18. 19.

I.R.C. § 161 (1994); Id. § 162(a) (1994 & Supp. V 1999). Id. §§ 167, 168 (1994 & Supp. V 1999). An asset’s basis is generally its cost. Id. § 1012 (1994). Id. § 1016(a) (1994 & Supp. V 1999). Id. § 1001(a) (1994). E.g., Treas. Reg. § 1.1016-2(b) (1960). I.R.C. § 162(a) (1994 & Supp. V 1999). Id. § 263(a) (1994 & Supp. V 1999).

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Section 263(a) trumps § 162(a).20 Therefore, a taxpayer may still have to treat an expense that falls under § 162(a) as a capital expense if the expense also falls under § 263(a).21 To receive a current deduction, taxpayers strive to fall under § 162(a) and stay outside of § 263(a). Taxpayers favor current deductions because they allow taxpayers to reduce their taxable income currently rather than over time.22 The IRS, however, wants taxpayers to fall within § 263(a), which delays deductions and maximizes the IRS’s current revenues.23 If a taxpayer must treat an expense as a capital expenditure, however, he or she prefers to treat it as a depreciable or amortizable capital expenditure, rather than a nondepreciable or nonamortizable capital expenditure. When an expense is depreciable or amortizable, the taxpayer may take the expense and spread it over the life of the asset it relates to.24 Therefore, instead of taking the entire expense and deducting it from taxable income in the first year, the taxpayer may take a portion of the expense and deduct it from taxable income every year over the related asset’s life.25 To do so, however, the taxpayer must know the life of the asset involved or determine the life based on industry standards.26 When an asset’s useful life is undeterminable, the expenses related to that asset are nondepreciable or nonamortizable capital expenditures.27 In that case, the taxpayer cannot reduce his or her taxable income by any portion of the expense. Instead, the taxpayer must add the expense to his or her basis in the related asset.28 When the taxpayer eventually sells the asset, he or she may deduct this cost from the sale price to arrive at his or her taxable gain.29 Taxpayers prefer current deductions over depreciable or amortizable capital expenditures due to the value of money doctrine.30 The time value of money doctrine states that a taxpayer would rather pay taxes later than sooner because a dollar today has greater value than

20. PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822, 827 (3d Cir. 2000). 21. Id. 22. Melissa D. Ingalls, INDOPCO, Inc. v. Commissioner: Determining the Taxable Nature of a Target Corporation’s Takeover Expenses, 43 DEPAUL L. REV. 1165, 1165 (1994). 23. Id. 24. I.R.C. §§ 167, 168 (1994 & Supp. V 1999). 25. When the related asset is a tangible asset (i.e., a building), this process is called depreciation. Id. § 167. When the related asset is an intangible asset, this process is called amortization. Id. § 197 (1994 & Supp. V 1999). 26. See Treas. Reg. § 1.167(a)-1(b) (as amended 1972). 27. Treas. Reg. § 1.263(a)-1 (as amended 1994). 28. I.R.C. § 1016(a) (1994 & Supp. V 1999). 29. Treas. Reg. § 1.1016-2(b) (1960). 30. See Ingalls, supra note 22, at 1170.

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a dollar in the future.31 Therefore, a taxpayer would rather reduce his or her taxable income in year one rather than little by little in subsequent years. By the same token, a taxpayer would rather reduce his or her taxable income little by little in subsequent years than reduce his or her taxable income at the end of some unknown period of time.32 To summarize, due to the time value of money, a taxpayer’s expense categorization preferences rank in the following order: (1) current deductions; (2) depreciable or amortizable capital expenditures; and (3) nondepreciable or nonamortizable capital expenditures.33 INDOPCO creates a problem by giving the IRS the potential to convert certain expenses from current deductions into nondepreciable or nonamortizable capital expenditures, thereby giving taxpayers a large economic jolt.34 III. INDOPCO’S FAMILY TREE In Commissioner v. Lincoln Savings & Loan Ass’n,35 the U.S. Supreme Court characterized an expense as a capital expense because it created a “separate and distinct additional asset.”36 The taxpayer, Lincoln Savings and Loan Association, paid two premiums to the Federal Savings and Loan Insurance Corporation.37 The first premium funded the primary reserve, which included a general insurance fund for all participants.38 The “additional premium” funded the secondary reserve, of which Lincoln Savings held a pro rata share.39 The issue in Lincoln Savings involved whether Lincoln Savings could deduct the additional premium that it paid to the Federal Savings

31. For example, if a taxpayer has a $100 tax liability payable either this year or next year (assuming no penalty), he would rather pay it next year because if he invests $90.91 today at a 10 percent rate of return he will have $100 next year. Thus, by getting to pay his tax liability next year, he reduces his tax bill by $9.09. 32. Id. However, taxpayers must balance their expected time value of money savings with the possibility that tax rates may increase. If tax rates increase, a taxpayer would rather defer his or her deduction to offset income in later years where tax rates are higher. On the other hand, if tax rates decrease, a taxpayer would prefer taking his or her deduction sooner because the current tax rate is higher than the future tax rate. 33. David J. Roberts, Capitalizing the Target’s Transaction Costs in Hostile Takeovers, 73 WASH. L. REV. 489, 492 (1998) (“Because of both the time value of money and the fact that an immediate deduction can reduce taxable income for the current tax year, taxpayers generally consider immediate deductions more valuable than deductions taken gradually over a number of years.”). 34. The INDOPCO Court realized this problem but provided no solution. See INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84 (1992) (“[W]here no specific asset or useful life can be ascertained, [the cost] is deducted upon dissolution of the enterprise.”). 35. 403 U.S. 345 (1971). 36. Id. at 354. 37. Id. at 348. 38. Id. 39. Id. at 349-50.

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and Loan Insurance Corporation as an ordinary and necessary business expense under section 162(a).40 In holding that it could not, the Court stated: [T]he presence of an ensuing benefit that may have some future aspect is not controlling; many expenses concededly deductible have prospective effect beyond the taxable year. What is important and controlling, we feel, is that the . . . payment serves to create or enhance for Lincoln what is essentially a separate and distinct additional asset and that, as an inevitable consequence, the payment is capital in nature and not an expense, let alone an ordinary expense, deductible under § 162(a) . . . .41

According to the Eighth Circuit, “[n]o less than five of the Federal Circuit Courts of Appeal[s] erroneously interpreted [the language above] to mean that the Supreme Court had adopted a new test for determining whether an expenditure was currently deductible or must be capitalized.”42 Each of these Circuits, in response to the Lincoln Savings decision, adopted a new “separate and distinct additional asset” test, or some variation thereof. The new test permitted necessary business expenditures to be fully deducted during the taxable year unless the expenditure created or enhanced a separate and distinct additional asset.43

This mischaracterization lasted until the INDOPCO decision, which disavowed the separate and distinct asset test as the exclusive test for distinguishing between deductible expenses and capital expenditures.44 INDOPCO addressed whether a target corporation may currently deduct certain professional expenses incurred during a friendly takeover.45 The target, INDOPCO, Inc., formerly named National Starch and Chemical Corporation, was an adhesives, starches, and specialty chemical products supplier.46 The acquirer, Unilever, was one of National Starch’s customers and wanted to buy it in a friendly transaction.47 During the takeover negotiations, National Starch used Morgan Stanley “to evaluate its shares, to render a fairness opinion, and 40. Id. at 345-46. 41. Id. at 354. 42. Wells Fargo & Co. v. Comm’r, 224 F.3d 874, 881 (8th Cir. 2000). See also Central Tex. Sav. & Loan Ass’n v. United States, 731 F.2d 1181 (5th Cir. 1984); NCNB Corp. v. United States, 684 F.2d 285 (4th Cir. 1982); First Sec. Bank of Idaho v. Comm’r, 592 F.2d 1050 (9th Cir. 1979); Colo. Springs Nat’l Bank v. United States, 505 F.2d 1185 (10th Cir. 1974); Briarcliff Candy Corp. v. Comm’r, 475 F.2d 775 (2d Cir. 1973). 43. Wells Fargo, 224 F.3d at 881. 44. INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 86-87 (1992). 45. Id. at 80. 46. Id. 47. Id.

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generally to assist [it] in the emergence of a hostile tender offer.”48 Shortly after Morgan Stanley found the $73.50 per share final offer to be fair, the parties consummated the transaction.49 Morgan Stanley charged National Starch a fee of more than $2.2 million, as well as $7,586 for out-of-pocket expenses and $18,000 for legal fees.50 The Debevoise, Plimpton, Lyons & Gates law firm charged National Starch $490,000 in legal fees and $15,069 in out-ofpocket expenses.51 National Starch itself incurred $150,962 in miscellaneous expenses such as accounting, printing, proxy solicitation, and SEC fees.52 On its federal income tax return, National Starch deducted the fees it paid Morgan Stanley, but did not deduct the fees and expenses it paid the Debevoise law firm or the other miscellaneous expenses it incurred.53 The IRS disallowed National Starch’s deduction for Morgan Stanley’s fee.54 National Starch sought a redetermination from the U.S. Tax Court and asserted its right to deduct its banking fees and expenses, as well as its legal and miscellaneous expenses.55 The Tax Court, agreeing with the IRS, ruled that all of the expenses were capital expenses and therefore not deductible under § 162(a).56 The court based its holding primarily on the merger’s long-term benefits to National Starch.57 On appeal to the Third Circuit, National Starch contended that the disputed expenses were currently deductible because they did not create or enhance a separate and distinct additional asset.58 But the Third Circuit rejected this argument and affirmed the tax court, agreeing that Unilever’s enormous resources and the transaction’s synergy prospects served National Starch’s long-term betterment.59 The U.S. Supreme Court also rejected National Starch’s argument that Lincoln Savings’ separate and distinct asset test represented the exclusive test for distinguishing between currently deductible expenses and capital expenses.60 Moreover, the Court made it a point to state that “deductions are exceptions to the norm of capitalization.”61

48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61.

Id. at 81. Id. at 81-82. Id. at 82. Id. Id. Id. Id. Nat’l Starch & Chem. Co. v. Comm’r, 93 T.C. 67, 73 (1989). Id. at 75. Id. Nat’l Starch & Chem. Co. v. Comm’r, 918 F.2d 428-31 (1990). Id. at 432-33. INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 86-87 (1992). Id. at 84.

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Furthermore, the Court clarified that Lincoln Savings did not reject the future benefit test as a means of distinguishing an ordinary business expense from a capital expenditure.62 The Court held that although the mere presence of an incidental future benefit cannot warrant capitalization, “a taxpayer’s realization of benefits beyond the year in which the expenditure is incurred is undeniably important in determining whether the appropriate tax treatment is immediate deduction or capitalization.”63 Applying the newly revived future benefit test to INDOPCO’s facts, the Court determined that the benefits National Starch obtained included: (1) synergy, which the Court called “resource-related benefits”; (2) the transformation from a publicly held to wholly owned subsidiary, which included the advantage of swapping 3,500 shareholders for one and thus eliminating expenses related to reporting and disclosure obligations, proxy battles, and derivative suits; and (3) the administrative convenience and simplicity of eliminating previously authorized but unissued shares of preferred stock and reducing the total number of authorized shares of common stock from eight million to one thousand.64 IV. THE IRS’S AGGRESSIVE POST-INDOPCO POSITIONS The IRS viewed the Supreme Court’s ruling in INDOPCO as “a green light to seek capitalization of costs that had previously been considered deductible in a number of businesses and industries.”65 After INDOPCO, the IRS could use the Supreme Court’s holding that “deductions are exceptions to the norm of capitalization”66 when applying Lincoln Savings’s separate and distinct asset test67 to aggressively deny deductions for expenses that the IRS had previously allowed taxpayers to currently deduct. INDOPCO also favored the IRS by lifting the “separate and distinct asset barrier” that five circuits had placed on the IRS.68 INDOPCO also allowed the IRS to deny current deductions in cases where the expense created some type of future benefit for the taxpayer even though it did not create a separate and distinct asset. Finally, because the Supreme Court in INDOPCO did not limit its holding to friendly acquisitions, the IRS could freely deny current deductions for expenses related to both friendly and hostile acquisitions. This section explores how the IRS took advantage of all that INDOPCO offered. 62. 63. 64. 65. 66. 67. 68.

Id. at 87. Id. at 87. This language revived the future benefit test. Id. at 88-89. PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822, 824 (3d Cir. 2000). INDOPCO, 503 U.S. at 84. Comm’r v. Lincoln Sav. & Loan Ass’n, 403 U.S. 345, 354 (1971). See supra note 42 and accompanying text.

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A. The IRS’s Position in PNC Bancorp After INDOPCO, the IRS used Lincoln Savings’s separate and distinct asset test and INDOPCO’s “deductions are exceptions to the norm of capitalization” language to deny current deductions for costs it had always allowed taxpayers to currently deduct. For example, in PNC Bancorp, Inc. v. Commissioner,69 the Commissioner took the position that the taxpayer had to capitalize marketing, researching, and loan originating expenses over certain loans’ lives.70 PNC Bancorp addressed whether a bank could currently deduct the following: (1) payments that the bank made to third parties for activities that helped it determine whether to approve a loan (i.e., credit screening, property reports, and appraisals); (2) the security interest recording costs associated with secured loans; and (3) the internal costs associated with loan marketing, loan origination, and completing and reviewing loan applications.71 In the late 1980s, the Financial Accounting Standards Board (FASB)72 promulgated Statement of Financial Standards 91 (SFAS 91), which required banks to separate these types of costs and recognize them over a loan’s life for financial accounting and reporting purposes.73 Although First National Pennsylvania Corporation (FNPC) and United Federal Bancorp, Inc., (UFB)74 complied with SFAS 91, both banks continued to currently deduct those costs for tax purposes.75 Contrary to its earlier practices, the IRS disallowed these deductions.76 Apparently, the IRS viewed INDOPCO’s “deductions are exceptions to the norm of capitalization” language as a “green light” to piggyback onto SFAS 91 and deny deductions for expenses that taxpayers had previously been able to currently deduct. B. The IRS’s Position in Wells Fargo The IRS also exploited INDOPCO’s future benefit test to deny current deductions for all costs associated with merger activity, in69. 212 F.3d 822 (3d Cir. 2000). 70. Id. at 824. “Emboldened by a U.S. Supreme Court case, and a change in private sector financial accounting standards, the IRS aggressively attempted to squash the deductibility of bank loan costs, casting them out from under the ‘ordinary and necessary’ business expense Code designation, into a quagmire of capitalization.” Mary Ann Fenicato, PNC Prevails Over IRS: Loan Expense Deductibility Upheld, 2 No. 19 LAW. J. 3, 13 (2000). 71. PNC Bancorp, 212 F.3d at 826. 72. Id. The FASB is “an independent private sector organization that establishes standards for financial accounting and reporting.” Id. at 825 n.1. 73. Id. at 825. 74. Id. PNC was a bank holding company and the petitioner in the case. FNPC and UFB merged into PNC in 1992 and 1994, respectively, and PNC succeeded to both companies’ liabilities. Id. 75. Id. at 826. 76. Id. at 827.

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cluding all “in house” costs. For example, in Wells Fargo & Co. v. Commissioner,77 the IRS tried to deny a deduction for the portion of the target’s officers’ salaries attributable to their work on a friendly acquisition, even though the target did not hire any of them specifically for that task.78 Wells Fargo concerned a bank merger between Davenport, an Iowa state bank, and Norwest, a bank holding company and owner of Bettendorf Bank.79 Davenport’s management became concerned that banks of its size would be unable to compete when Iowa adopted interstate banking legislation that allowed banking institutions located in states next to Iowa to acquire Iowa banks.80 In July 1991, Davenport’s board met to consider a transaction in which Davenport and Bettendorf would merge to form New Davenport, a national bank that Norwest would wholly own.81 The parties consummated the deal in January 1992.82 Prior to July 1991, Davenport spent $83,450 in investigating Norwest’s and Bettendorf’s products, services, and reputation to ascertain whether Norwest and Bettendorf would be a good business fit for Davenport and whether the proposed transaction would benefit the Davenport community.83 Davenport spent another $27,820 in fees related to the investment bankers’ services, which included “negotiating price, working on the fairness opinion, advising [Davenport]’s board with respect to fiduciary duties, [and] satisfying securities law requirements.”84 During 1991, some of Davenport’s officers worked on various aspects of the transaction.85 Davenport, however, did not hire any of them specifically for that task.86 Instead, it hired them to conduct Davenport’s day-to-day banking business.87 Moreover, Davenport’s participation in the transaction had no effect on the officers’ salaries.88 “Of the salaries paid to the officers in 1991, $150,000 was attributable to services performed in the transaction.”89 But when Davenport deducted the salaries, including the $150,000 deduction attributable to the transaction, the Commissioner disallowed the de-

77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89.

224 F.3d 874 (8th Cir. 2000). Id. at 880. Id. at 876-77. Id. at 877. Id. at 874. Id. at 879. Id. Id. Id. at 879-80. Id. at 880. Id. Id. Id.

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duction.90 The IRS took the position that because the salaries were attributable to a merger transaction that yielded future benefits, the taxpayer needed to capitalize them.91 Previously, taxpayers could currently deduct salaries as ordinary and necessary business expenses. But as it did in PNC Bancorp, the IRS in Wells Fargo aggressively tried to stop those current deductions. C. The IRS’s Position in Hostile Takeovers Finally, the IRS exploited the fact that the INDOPCO court failed to limit its holding to friendly acquisitions by denying deductions for hostile acquisition defense costs, despite the fact that these costs yield no future benefit.92 For example, in one case, a target expended $65 million in legal and investment banking fees and $6.5 million in executive compensation to resist a hostile takeover.93 However, when one bidder successfully acquired the target and tried to deduct its hostile acquisition defense costs, the IRS disallowed its deduction.94 V. THE IRS’S AGGRESSIVE POST-INDOPCO POSITIONS PROMOTE BAD POLICY The IRS’s aggressive post-INDOPCO positions discussed in Part IV are bad from a policy perspective for at least three reasons. First, the Service’s opportunistic and aggressive positions lack substantive rationale. Second, they violate the matching principle. Finally, they ignore the difference between hostile and friendly acquisitions. A. The IRS’s Positions Lack Rationale The IRS’s aggressive position in PNC Bancorp was bad from a policy perspective because it lacked substantive rationale. In that case, the IRS opportunistically tried to piggyback onto SFAS 91 to require banks to capitalize costs that it had previously allowed banks to currently deduct.95 The court in PNC Bancorp determined that “the reasons for SFAS 91’s requirement that loan origination costs be deferred are reasons wholly specific to the realm of financial accounting, and thus those financial accounting standards do not affect our tax analysis.”96

90. Id. 91. Id. 92. The Commissioner took this position in A.E. Staley Mfg. Co. v. Comm’r, 119 F.3d 482 (7th Cir. 1997). See infra Part VI.C. 93. Sheppard, supra note 3, at 1458 (discussing Gulf Oil’s attempts to resist the Mesa Petroleum and Chevron takeovers). 94. Id. 95. See supra Part IV.A. 96. PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822, 832 (3d Cir. 2000).

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The court continued, “[i]n fact, . . . the IRS’s wholesale importation of the line drawn by the financial accounting standards creates tax consequences that the Commissioner appears not to have considered.”97 Apparently, if banks had to capitalize the loan origination costs, they would have to include these costs in each loan’s basis. Such inclusions represented a departure from current practice, as the bank’s basis in a loan had always been equal to the money the bank advanced, irrespective of origination costs.98 Therefore, the court saw the IRS’s failure to consider these and other tax ramifications as an indication that the IRS lacked independent tax analysis and had simply bootstrapped financial accounting standards into the tax arena.99 B. The IRS’s Positions Violate the Matching Principle The IRS’s aggressive post-INDOPCO positions also led to significant matching principle violations. The primary purpose of distinguishing between expenses that a taxpayer must treat as current deductions versus those that he or she must treat as capital expenditures is to “match expenses with the revenues of the taxable period to which they are properly attributable.”100 This achieves a more accurate net income calculation for tax purposes.101 For example, when a taxpayer purchases an asset with a useful life greater than one year, such as a building, he or she cannot deduct the entire cost of the building in the purchase year because he or she would underestimate income in the purchase year and overestimate income in subsequent years. The matching principle requires a taxpayer to spread the purchase cost over the life of the asset. Problems with this requirement, as previously discussed in Part II, arise when a taxpayer cannot ascertain the asset’s useful life and must add the cost to the asset’s basis. The requirement creates trouble when the “taxpayer cannot justify a useful life for the intangible asset, leaving the taxpayer with a capitalized cost but no amortization deduction to match with the income supposedly resulting from the expenditure.”102 If expenses incurred by a target corporation during a takeover, for example legal and investment banking fees which typically run into the millions of dollars, are treated as capital expenditures, they create an intangible asset. However, the useful life of the asset cannot be determined. Thus, no deductions for depreciation or 97. Id. at 832 n.16. 98. Id. at 833. 99. Id. at 834. 100. INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 83-84 (1992). 101. Id. 102. W. Eugene Seago & D. Larry Crumbley, INDOPCO: A Tiger, a Pussycat, or a Creature Somewhere in Between?, 94 J. TAX’N 14, 15 (2001).

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amortization would be allowed. Consequently, the expenditures, if capital in nature, have very little tax value. The only deduction given would be at the dissolution of the enterprise. However, that possible future deduction is virtually worthless when compared to the much larger tax benefit received if the expenses are treated as current deductions.103

For example, the IRS’s aggressive position in Wells Fargo violated the income matching principle because it forced the corporation to immediately pay its officers the portion of the salaries attributable to the merger ($150,000), but refused to allow a corresponding deduction for that expense until the enterprise’s dissolution.104 By that time, the time value of money would render the deduction worthless. Therefore, the IRS’s position currently overstates the taxpayer’s income because the taxpayer cannot deduct the salary cost even though it must pay it currently. Furthermore, no portion of the salaries can be deducted over future years, unlike a tangible asset where the taxpayer can spread the cost of the asset over its useful life. Rather, the taxpayer may only take the deduction at the enterprise’s dissolution, which may occur at some unknown point in time, if at all. The inability to deduct current expenses until the enterprise’s dissolution creates a unique problem because it leads to a significant matching principle violation. This matching principle violation creates a greater problem than permitted matching principle violations like accelerated depreciation deductions because of the uncertainty regarding the time of dissolution. For example, accelerated depreciation deductions violate the matching principle because they allow taxpayers to take bigger depreciation deductions at the beginning of the corresponding asset’s useful life rather than forcing taxpayers to spread these deductions evenly over the asset’s useful life. Therefore, the taxpayer’s income will be understated in the asset’s earlier years and overstated in its later years.105 However, this situation differs from the situation where a taxpayer pays salaries currently but cannot deduct them until the enterprise’s dissolution, because the taxpayer’s income will be overstated in the year it pays the salary, without knowing whether it will be understated in a future year to correct the initial overstatement. Also, if the enterprise eventually dissolves, that dissolution is so remote that the time value of money renders that deduction worthless. Although the government loses some revenue due to the time value of money in the case of an accelerated depreciation deduction, it does not lose all of its revenue. In the scenario created by INDOPCO, however, if the taxpayer does not

103. Ingalls, supra note 22, at 1170-71. 104. See Wells Fargo & Co. v. Comm’r, 224 F.3d 874 (8th Cir. 2000). 105. Accelerated depreciation benefits taxpayers due to the time value of money.

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dissolve its enterprise, it loses its entire deduction. Furthermore, a taxpayer must dissolve its enterprise to determine how much of its deduction was lost due to the time value of money. The government, on the other hand, loses a quantifiable amount of money. Therefore, being unable to deduct current expenses until the enterprise’s dissolution is a unique problem because it leads to a significant matching principle violation.106 C. The IRS’s Positions Ignore the Distinction Between Hostile and Friendly Acquisitions The IRS’s aggressive positions also ignore the distinction between hostile and friendly acquisitions. Unlike expenses connected to friendly acquisitions, hostile acquisition defense costs do not create a future benefit.107 They merely maintain a corporation’s status quo.108 Because hostile acquisition defense costs do not enrich a taxpayer and because the income tax is geared toward taxing wealth, a taxpayer should not have to pay income taxes on hostile acquisition defense costs.109 Finally, courts can detect which costs are associated with hostile versus friendly acquisitions. Thus, drawing this distinction creates no danger. Taking all of these factors into consideration, the IRS’s refusal to distinguish between hostile and friendly acquisitions lacks substantive rationale. First, expenses related to defending a business from a hostile takeover fit squarely into § 162(a)’s definition of a current deduction.110 To qualify under § 162(a), an item must be: (1) paid or incurred during the taxable year; (2) used for carrying on any trade or business; (3) an expense; (4) a necessary expense; and (5) an ordinary expense.111 An expense to defend against a hostile acquisition clearly represents an expense the taxpayer pays during the taxable year for the purpose of carrying on a trade or business.112 Moreover: [i]n light of [the duties the board of directors owes shareholders], it easily can be argued that expenditures made in defense of a hostile 106. One commentator argues that the matching principle is not a tax value but rather a financial accounting concept. Deborah A. Geier, The Myth of the Matching Principle as a Tax Value, 15 AM. J. TAX POL’Y 17 (1998). Geier’s article, however, espouses the minority view. The matching principle is very much regarded as a “systematic tax benefit rule.” See Julie A. Roin, Unmasking the “Matching Principle” in Tax Law, 79 VA. L. REV. 813, 814 (1993). 107. Heidi Katheryn Wambach, The Deductability of Business Expenses Incurred in a Hostile Takeover: Staley Rides Again, 51 SMU L. REV. 1603, 1626 (1998). 108. Id. 109. Although one could argue that a future benefit exists in being a company that nobody can takeover, the IRS has never tried to make this argument. Moreover, this benefit seems more psychic than economic. 110. Wambach, supra note 107, at 1620. 111. Comm’r v. Lincoln Sav. & Loan Ass’n, 403 U.S. 345, 352 (1971). 112. Wambach, supra note 107, at 1626-27.

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acquirer’s bid should not be capitalized but rather deducted in the current year because such duties make the board’s defenses “necessary.” In addition, such defenses are “ordinary” in that any and every board would act in conformance with these fiduciary mandates.113

Furthermore, unlike friendly takeover expenses, § 263(a) does not apply to hostile acquisition defense costs because these costs do not provide a future benefit.114 Rather, they leave the company in the same position it found itself in before the attempted takeover.115 Because hostile acquisition expenses are inherently different from friendly acquisition expenses, the IRS should let taxpayers treat hostile acquisition expenses differently by allowing them to currently deduct hostile acquisition expenses while requiring them to capitalize friendly acquisition expenses. Some commentators argue that allowing taxpayers to currently deduct defensive activities costs “amounts to a governmental subsidy to parties resisting tender offers.”116 One commentator insists that because “allowing a deduction indicates Congress’s willingness to permit or often encourage the activity that qualifies for the deduction,”117 allowing a current deduction for hostile acquisition expenses encourages “corporate taxpayers to push the limits of credulity and attempt to attribute as many expenses as possible to defensive measures devoid of any future benefit.”118 Tax laws truly can have unintended effects on taxpayers. For example, assigning fair market value basis to property in decedents’ estates119 creates an incentive for people to retain property rather than sell it and put it to its best use. This unintended effect, however, becomes neutralized by a tax objective, namely that estates pay taxes on a property’s fair market value and not on the value of the decedent’s basis in the property.120 Similarly, although allowing a deduction for hostile acquisition defense costs may inadvertently encourage companies to engage in more hostile acquisition defense activities, another tax objective cancels this effect: the taxation of income

113. Id. at 1622. 114. Sarah R. Lyke, Note, INDOPCO, Inc. v. Commissioner: National Starch Decision Adds Wrinkles to Capital Expenditure Issue, 88 NW. U. L. REV. 1239, 1258-59 (1994) (“Like a repair, the defense is not an improvement and thus yields no continuing benefit.”). 115. Id. at 1258 (“[S]uch costs, like repair costs, are incurred only to maintain the status quo.”). 116. Roberts, supra note 33, at 513. 117. Id. 118. Id.; see also Sheppard, supra note 3, at 1460 (“[A]re not the parties just haggling about price? Expenses of resisting a hostile takeover could be viewed as part of a larger capital transaction.”). 119. I.R.C. § 1014(a)(1) (1994 & Supp. V 1999). 120. Id. § 2031(a) (1994).

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as a proxy to taxing wealth.121 Therefore, not taxing companies that have spent a lot of money defending themselves because they have little wealth and, consequently, cannot pay more taxes, overrides the possible unintended effect of encouraging companies to engage in more hostile acquisition defense activities. To address this commentator’s second point, judges are wise enough to know when taxpayers are trying to pull the wool over their eyes by disguising friendly acquisition costs as hostile acquisition costs. For example, in Victory Markets, Inc. v. Commissioner,122 the petitioner argued that its acquirer was unfriendly. However, the court determined the opposite.123 Victory Markets was a publicly traded corporation in the over-the-counter market, where its common stock traded from $15.50 to $24.50 per share between May 1985 and May 27, 1986.124 When LNC Industries Proprietary, Ltd. (LNC), began targeting Victory Markets on May 23, 1986, Victory Markets rejected LNC’s initial $30 per share offer.125 However, on June 8, 1986, it agreed to merge with LNC for $37 per share.126 The court addressed whether Victory Markets could currently deduct the expenditures incident to LNC’s acquisition.127 Victory Markets argued that, unlike the acquirer in INDOPCO, LNC acquired Victory Markets in a hostile takeover and therefore INDOPCO did not apply.128 However, the court found that “[w]hile petitioner had painstakingly attempted to characterize the nature of the takeover as hostile, the evidence does not support such a characterization or finding.”129 The court found the following facts indicated that the transaction was friendly: (1) Victory Markets entered into an agreement and plan of merger with LNC only sixteen days after LNC’s initial contact with it;130 (2) LNC’s initial contact letter stated its desire to negotiate a mutually acceptable merger agreement and its hope that the “transaction can be completed on a mutually acceptable and friendly basis”131; (3) “at no time did LNC attempt to circumvent the board of directors by making a tender offer directly to petitioner’s

121. See Alvin Warren, Would a Consumption Tax Be Fairer Than an Income Tax? 89 YALE L.J. 1081, 1081 (1980) (“Levying the tax on income is . . . simply a logical concomitant of the proposition that society in general has a claim on its annual product that is prior to the claim of its individual citizens.”). 122. 99 T.C. 648 (1992). 123. Id. at 661-62. 124. Id. at 649. 125. Id. at 651, 654. 126. Id. at 655. 127. Id. at 657. 128. Id. 129. Id. at 661-62. 130. Id. at 655. 131. Id. at 662.

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shareholders”132; and (4) the board did not activate its dividend rights plan, one of its hostile takeover defenses.133 Therefore, Victory Markets not only illustrates that courts can distinguish between friendly and hostile transactions, but it also outlines many factors that future courts can use as guidance to distinguish between different types of corporate transactions. Commentators are also concerned by the fact that after the target unsuccessfully defends the acquisition, the acquirer becomes the party seeking the deductions for the target’s unsuccessful resistance costs.134 This fact concerns commentators because the acquirertaxpayer simultaneously capitalizes its own acquisition costs and currently deducts the former target’s defense costs.135 Although this dichotomy seems like a bonus to the acquirer, it really is not. When an acquirer buys a corporation, it buys all of its assets and liabilities. Therefore, although the acquirer buys a company with currently deductible defense costs, it also buys a company with less assets because a portion of them paid for heavy investment banking fees. VI. NOTHING LEFT OF INDOPCO Displeased with the IRS’s aggressive positions, post-INDOPCO courts have limited INDOPCO considerably. The Third Circuit prevented the IRS from forcing taxpayers to capitalize previously deductible expenses without a valid tax rationale, despite INDOPCO’s “deductions are exceptions to the norm of capitalization” language, by placing an extra restriction on the separate and distinct asset test.136 The Eighth Circuit prevented the IRS from forcing taxpayers to capitalize previously deductible expenses by severely restricting INDOPCO’s future benefit test.137 Finally, using the business attack defense doctrine, the Seventh Circuit narrowed INDOPCO’s holding to apply only to friendly takeover acquisitions.138 A. PNC Bancorp Places a Restriction on the Separate and Distinct Asset Test Courts have limited INDOPCO by narrowly applying the separate and distinct asset test. For example, in PNC Bancorp, the court restricted the separate and distinct asset test by holding that to be 132. 133. 134. 135. 136. 137. 138.

Id. Id. Roberts, supra note 33, at 513 n.161. Id. PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822, 830 (3d Cir. 2000). Wells Fargo & Co. v. Comm’r, 224 F.3d 874, 886 (8th Cir. 2000). A.E. Staley Mfg. Co. v. Comm’r, 119 F.3d 482, 489 (7th Cir. 1997).

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capitalizable, an expense must create a separate and distinct asset or be more than an expense associated with separate and distinct asset creation.139 This clever distinction prevented the IRS from forcing banks to capitalize expenses it had always deducted.140 PNC Bancorp addressed whether a bank could deduct certain marketing, researching, and loan originating expenses.141 The Third Circuit held these costs currently deductible and initially found that they were clearly ordinary and necessary business expenses under § 162(a).142 The court then addressed whether the banks incurred these costs for “betterments to increase the value of property in a way that would require these costs’ capitalization under § 263.”143 The court applied Lincoln Savings’s separate and distinct asset test and concluded that the taxpayer’s marketing and origination activities were currently deductible because they did not actually “create” the banks’ loans in the same way that the activities in Lincoln Savings created the Secondary Reserve fund.144 Although the expenses in question were either associated with the loans, incurred in connection with the acquisition of the loans, or “directly related to the creation of the loans,” they did not “create” the loans.145 The court contrasted the way the payments themselves formed the Secondary Reserve corpus in Lincoln Savings with how the expenses in this case did not become part of the loan balance.146 The Third Circuit in PNC Bancorp restricts the IRS’s aggressive position in two ways. First, it places an extra restriction on the separate and distinct asset test, which distinguishes between costs that create a separate and distinct asset versus costs associated only with a separate and distinct asset’s creation. Apparently, the court recognized that the IRS’s opportunistic pursuit of capitalization for previously deductible expenses lacked substantive rationale.147 139. PNC Bancorp, 212 F.3d at 830. 140. See id. at 834-35. 141. Id. at 824. The PNC Bancorp tax court held that taxpayers cannot currently deduct these costs because banks incur them to create new loans, which are separate and distinct bank assets. Therefore, banks must capitalize these costs as though they created a separate and distinct asset. PNC Bancorp, Inc. v. Comm’r, 110 T.C. 349, 375 (1998), rev’d, 212 F.3d 822 (3d Cir. 2000). 142. PNC Bancorp, 212 F.3d at 829. 143. Id. 144. Id. at 829-30. 145. Id. (quoting PNC Bancorp, Inc. v. Comm’r, 110 T.C. 349, 366 (1998)). 146. Id. at 830. 147. Id. at 824-25. Historically, the costs at issue have been deductible in the year that they are incurred; however, the Commissioner rejected this tax treatment by PNC. Why is the Commissioner now insisting upon capitalization of these costs? . . . [T]he IRS apparently viewed INDOPCO as a reason to pursue capitalization of the costs that SFAS 91 requires to be deferred. Id.

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Second, the PNC Bancorp court reduced INDOPCO to its facts by confining it to mergers.148 The court used language such as “in the merger situation presented in INDOPCO,”149 as well as “[i]n the INDOPCO context of a friendly takeover, the Court found . . . .”150 These statements indicate that the court narrowly construed INDOPCO. B. Wells Fargo Extends the “Origin of the Claim” Doctrine to Create the Direct/Indirect Test The Wells Fargo court also prevented the IRS from forcing taxpayers to capitalize previously deductible expenses by severely restricting INDOPCO’s future benefit test. One commentator accurately predicted the IRS’s position in Wells Fargo: If “the existence of future benefits” is the key criterion for capitalization despite the capital transaction facts of INDOPCO, taxpayers may very well encounter nondeductibility of expenses that were heretofore believed to be currently deductible, including the following items: . . . Executive salaries and other expenses associated with strategic planning by middle level and upper level management in developing plans and techniques for business growth and expansion . . . . The rationale? A business’s growth is a long term benefit. If the CEO and other senior executives of a corporation spend half their time in strategic planning and developing growth strategies, then perhaps an allocable one-half of their compensation must be capitalized.151

Indeed, in Wells Fargo, the IRS tried to deny a deduction of $150,000, which represented the portion of the target’s officers’ salaries attributable to their work on the acquisition, even though the target did not hire any of them specifically for that task.152 Although the Tax Court sided with the IRS,153 the Eighth Circuit held that the taxpayer need not capitalize the $150,000.154 The appellate court rea-

148. See Fenicato, supra, note 70, at 14 (“Since PNC’s costs could not even remotely resemble a merger, the Court confined INDOPCO to its facts, reined-in the IRS, and pulled the plug on its broad interpretation of INDOPCO.”). 149. PNC Bancorp, 212 F.3d at 833. 150. Id. 151. Elliot, supra note 2, at 31. 152. Wells Fargo & Co. v. Comm’r, 224 F.3d 874, 880 (8th Cir. 2000). 153. Norwest Corp. v. Comm’r, 112 T.C. 89, 102 (1999), rev’d sub nom. Wells Fargo & Co. v. Comm’r, 224 F.3d 874 (8th Cir. 2000). In sum, we hold that [the taxpayer] may not deduct any of the disputed costs because all costs were sufficiently related to an event that produced a significant long-term benefit. Although the costs were not incurred as direct costs of facilitating the event that produced the long-term benefit, the costs were essential to the achievement of that benefit. Id. 154. Wells Fargo, 224 F.3d at 889.

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soned that because the salary expenses related only indirectly to the merger, they were currently deductible.155 Importantly, this holding recognized that to capitalize an expense, the expense not only must relate to a transaction that produces a future benefit, but also must directly relate to that transaction. The Wells Fargo court arrived at this direct/indirect test by extending the “origin of the claim doctrine,” which it had originally used to distinguish personal expenses from business expenses and capital business expenses from ordinary business expenses.156 In doing so, the Wells Fargo court restricted INDOPCO’s future benefit test. Applying this new version of the future benefit test, Wells Fargo distinguished itself from INDOPCO by finding that the costs in INDOPCO directly related to the acquisition, while Wells Fargo’s petitioner’s costs related indirectly to the acquisition because they originated from an employment relationship.157 Accordingly, the taxpayer in INDOPCO had to capitalize its expenses, while the taxpayer in Wells Fargo did not. By placing an additional restriction on the future benefit test, the Eighth Circuit further limited INDOPCO. C. A.E. Staley Narrows INDOPCO to Friendly Acquisitions Finally, in A.E. Staley Manufacturing Co. v. Commissioner,158 the Seventh Circuit severely restricted INDOPCO’s application by limiting it to friendly acquisitions. A.E. Staley addressed whether a target could currently deduct the investment banking fees it incurred while defending against a hostile takeover.159 In holding that it could, the court reasoned that costs associated with hostile takeover defense costs differed from friendly acquisition costs because hostile takeover defense costs were considered business attack defense costs.160 The “business attack defense” states that businesses can deduct expenses that they incur “for the protection of an existing investment, the continuation of an existing business, or the preservation of existing income from loss or diminution . . . .”161 A.E. Staley marked the first appellate court case to apply the business attack defense to a hostile takeover scenario.162 In A.E. Staley, the court found that taxpayers 155. Id. at 888. 156. Id. at 886. 157. Id. at 887-88. 158. 119 F.3d 482 (7th Cir. 1997). 159. Id. 160. Id. at 491-92. 161. Id. at 488 n.2 (quoting NCNB Corp. v. United States, 684 F.2d 285, 290 (4th Cir. 1982)). 162. The first court to apply the business attack defense to a hostile takeover scenario was a bankruptcy court. In re Federated Dep’t Stores, 171 B.R. 603 (S.D. Ohio 1994). That court found that INDOPCO did not undermine the earlier business attack defense decisions. Id. at 608-10. Furthermore, it found that hostile takeover cases are business attack

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could assert the business attack defense in hostile acquisitions because INDOPCO neither abrogated nor addressed cases such as NCNB Corp. v. United States.163 A.E. Staley involved a merger between a target, Staley Continental, Inc. and Subsidiaries (SCI), and an acquirer, Tate & Lyle.164 When SCI began to fear the possibility of a hostile takeover, it hired a law firm to advise it on anti-takeover measures.165 SCI also hired Merrill Lynch as its investment banker to prepare, advise, and assist SCI in the event of a hostile takeover.166 Because Merrill Lynch suggested “that SCI identify friendly ‘white knight’ investors to acquire enough stock in SCI to block any future takeover attempt, SCI sought out Tate & Lyle and discussed the possibility of Tate & Lyle’s acquiring a 20 percent interest in SCI.”167 But when Tate & Lyle acquired four percent of the company, SCI began to fear that Tate & Lyle would try to acquire the entire company.168 Tate & Lyle confirmed SCI’s anxiety and turned from a white knight into a dark prince, making a $32 per share tender offer directly to SCI’s stockholders.169 Moreover, it sued SCI to enjoin its use of anti-takeover devices.170 But because SCI’s board recognized it had a duty to evaluate the tender offer’s merits, it hired the investment

defense cases because they involve taxpayers who incur expenses to protect corporate policy and structure but not to acquire a new asset. Id. 163. 684 F.2d 285 (4th Cir. 1982). An issue in NCNB concerned whether North Carolina National Bank’s parent corporation, NCNB Corporation, could currently deduct the expenses incurred in developing and operating a statewide network of branch banking facilities. Id. at 290. In holding that it could, the court reasoned that such expenses were necessary to maintain NCNB’s position in the banking industry. Id. In other words, these expenses were currently deductible as business defense expenses. The court also discussed a case, Comm’r v. Heininger, 320 U.S. 467 (1943), in which the U.S. Supreme Court held that a taxpayer could currently deduct the legal fees he incurred in litigating against an order by the Postmaster General depriving his mail order business from use of the mails. Id. at 474. The Court reasoned that because the Postmaster General’s legal action threatened to destroy the taxpayer’s business, the taxpayer could deduct the costs as ordinary and necessary business expenses. Id. at 471. The A.E. Staley court also discussed a case, Locke Mfg. Cos. v. United States, 237 F. Supp. 80 (D. Conn. 1964), where the court held that a company could deduct its proxy contest expenses after successfully resisting a stockholder’s challenge, “including legal fees, proxy solicitor’s fees and public relations fees.” A.E. Staley, 119 F.3d at 488. The A.E. Staley court quoted a portion of Locke that discussed how “it was ordinary for a company to spend money ‘to defend the policies of its directors from attack by those who would oppose them.’” Id. at 488 (quoting Locke, 237 F. Supp. at 86-87). 164. A.E. Staley, 119 F.3d at 484. 165. Id. 166. Id. 167. Id. 168. Id. Evidence that Tate & Lyle would try to acquire the entire company included the fact that it would not sign a “standstill agreement” which would have limited the amount of SCI stock it could purchase. Id. 169. Id. 170. Id.

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bankers for advice and assistance.171 SCI’s board then unanimously voted to reject the $32 per share offer and a subsequent $35 per share offer.172 But when Tate & Lyle increased its tender offer to $36.50 per share, the board voted to accept the offer because the investment bankers said it was fair and because no alternative acquirers surfaced.173 By the time the parties consummated the transaction, SCI had paid the investment bankers $12.5 million for services in connection with SCI’s tender offers.174 SCI attempted to deduct these costs as business expenses, but the Commissioner disallowed the deduction.175 Because the Supreme Court failed to limit its INDOPCO holding to friendly acquisitions, the IRS attempted to make the taxpayer capitalize its hostile acquisition defense costs.176 Moreover, the IRS tried to enforce a “per se transformation rule,” which states that any transaction where a corporate taxpayer is transformed from a publicly held corporation to a single shareholder corporation involves a future benefit and, therefore, any expenses the taxpayer incurs with respect to such a transformation are capital expenditures.177 The tax court sided with the IRS, although it tried to avoid adopting the per se transformation rule.178 The court found that the taxpayer had to capitalize the hostile acquisition defense costs for the following reasons: the new owner saw synergy opportunities; the board eventually approved the transaction; and the same shareholder-related benefits that the Supreme Court looked at in INDOPCO, including the reduction in shareholder-related benefits, existed in this case.179 However, as Judge Cohen’s dissent stated, the only future benefits discussed in the majority opinion were those the acquirer perceived.180 Moreover, the majority’s statement about reduction of shareholder-related expenses made it seem as if it is always better for a corporation to be privately held rather than publicly held.181 But, as Judge Laro noted in his dissent, “[a] private company does not have access to the public markets for new capital and does not

171. Id. 172. Id. at 485. 173. Id. 174. Id. 175. Id. 176. Id. 177. A.E. Staley Mfg. Co. v. Comm’r, 105 T.C. 166, 191-92 (1995), rev’d, 119 F.3d 482 (7th Cir. 1997). 178. Id. at 200. 179. Id. at 198. 180. Id. at 215 (Cohen, J., dissenting). 181. Id.

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have the same liquidity for its shareholders.”182 Thus, Judge Laro suggested that one cannot conclude that a company achieves a benefit in itself just by going private.183 Convinced by the Tax Court’s dissents, the Seventh Circuit reversed the Tax Court.184 It found that SCI’s hostile acquisition costs were costs associated with defending a business rather than costs associated with facilitating a capital transaction.185 It reasoned that “SCI was defending against an unwanted acquisition in an effort to maintain and protect an established business.”186 Therefore, SCI’s hostile acquisition defense costs were currently deductible.187 Remarkably, this holding declined to follow INDOPCO, even though the INDOPCO opinion did not indicate that the “friendly” aspect of the transaction was dispositive or that the outcome would differ if the takeover were considered “hostile.”188 Evidently, the court disagreed with the IRS’s aggressive post-INDOPCO positions and restricted the IRS by carving a big chunk out of INDOPCO. After the A.E. Staley decision, trial courts in the Seventh Circuit may only apply INDOPCO to friendly acquisitions. Additionally, A.E. Staley provided target corporations with the § 165 safety net. Section 165 provides that “[t]here shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.”189 Particularly, § 165 permits taxpayers to deduct costs associated with abandoned capital transactions.190 Therefore, the court found that SCI could have deducted the investment banking fees and other costs it incurred while resisting Tate & Lyle’s takeover under this section also.191 The court seemed to tell taxpayers that if other circuits fail to respect the hostile versus friendly acquisition distinction, § 165 gives them another shield to protect themselves from the IRS’s aggressive positions.192

182. Id. at 219 (Laro, J., dissenting). 183. Id. 184. A.E. Staley Mfg. Co. v. Comm’r, 119 F.3d 482, 493 (7th Cir. 1997). 185. Id. at 489-90. 186. Id. at 490. 187. Id. at 491. 188. Roberts, supra note 33, at 494 n.38. 189. I.R.C. § 165(a) (1994). 190. A.E. Staley, 119 F.3d at 490. 191. Id. 192. However, § 165 is less effective than the business attack defense because it does not cover successful defensive techniques such as a self-tender. Roberts, supra note 33, at 519.

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VII. NOTHING LEFT OF INDOPCO: LET’S KEEP IT THAT WAY! Although post-INDOPCO courts have severely restricted INDOPCO, it is still “the supreme law of the land.”193 Furthermore, nine of twelve circuits still have not commented on the case. The circuits that have spoken on INDOPCO have each overturned tax court decisions that sided with the IRS.194 Therefore, Congress should direct the Treasury to enact regulations that codify the Third, Seventh and Eighth Circuit holdings to unify the law in all circuits. If the Treasury does not enact such regulations, the IRS will continue to pursue its aggressive positions and use the ammunition provided by INDOPCO against taxpayers.195 First, INDOPCO contains the following powerful and pro-IRS language: “deductions are exceptions to the norm of capitalization.” Second, INDOPCO favors the IRS by lifting the “separate and distinct asset barrier” that five circuits have used to confine the IRS. After INDOPCO, the IRS could deny current deductions in cases where the expense created some type of future benefit for the taxpayer, even though it did not create a separate and distinct asset. Finally, because the Supreme Court in INDOPCO did not limit its holding to friendly acquisitions, the IRS could freely deny current deductions for expenses related to both friendly and hostile acquisitions. Despite A.E. Staley’s holding, which limited INDOPCO to friendly acquisitions, “[t]he IRS has vowed to pursue capitalization in Staley-type issues in the future.”196 Another justification for codification of the Third, Seventh and Eighth Circuit holdings relates to the poor policy that the IRS’s aggressive post-INDOPCO positions promote. First, the Service’s aggressive, opportunistic positions lack substantive rationale. Second, the Service’s aggressive positions violate the matching principle. Finally, the Service’s aggressive positions ignore the difference between hostile and friendly acquisitions. Therefore, the Treasury should promote a sound policy by enacting such regulations. The Treasury should enact the suggested regulations by including them as “Types of Non-Capital Expenditures” under § 263(a)’s treasury regulations. The first type of noncapital expenditures the Treasury should include are expenses regularly incurred in the creation of

193. INDOPCO was also a unanimous decision. 194. E.g., Wells Fargo & Co. v. Comm’r, 224 F.3d 874 (8th Cir. 2000), rev’g Norwest Corp. v. Comm’r, 112 T.C. 89 (1999); PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822 (3d Cir. 2000), rev’g 110 T.C. 349 (1998); A.E. Staley Mfg. Co. v. Comm’r, 119 F.3d 482 (7th Cir. 1997), rev’g 105 T.C. 166 (1995). 195. Seago & Crumbley, supra note 102, at 14 (“The Supreme Court’s decision in INDOPCO . . . created a new weapon for IRS agents and much uncertainty for tax practitioners.”) (citation omitted). 196. Wambach, supra note 107, at 1621.

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separate and distinct assets.197 Examples of these types of noncapital expenditures include the marketing, researching, and loan originating expenses at issue in PNC Bancorp.198 The Treasury should also include expenses incurred in connection with, but not directly related to, a capital acquisition. An example of this type of noncapital expenditure is the portion of the target officers’ salaries attributable to their work on a friendly acquisition, such as the one involved in Wells Fargo.199 Finally, the Treasury should include expenses incurred to defend a business against a hostile acquisition. An example of this type of noncapital expenditure is the investment banking fees the target paid Merrill Lynch in A.E. Staley.200 Alternatively, the treasury regulations could enumerate the type of capital acquisition costs that are capitalizable and limit those costs to investment banking and legal fees associated with friendly acquisitions. The Treasury should also list factors to help courts distinguish between friendly and hostile acquisitions. For this purpose, the Treasury should borrow Victory Markets’ factors.201 Such factors include: (1) the number of days elapsed from initial contact to the parties’ final agreement; (2) whether the acquirer went directly to the shareholders, thereby circumventing the board of directors; and (3) whether the target had anti-takeover devices, such as poison pills, but failed to use them.202 VIII. CONCLUSION Although INDOPCO’s reach initially frightened taxpayers, in the last decade courts have stepped in to ease some of these fears. Recognizing that the IRS’s aggressive post-INDOPCO behavior promotes bad policy, courts have used a range of judicial doctrines to contain this behavior. However, because INDOPCO represents current law and many circuits have yet to touch upon the numerous issues it raises, taxpayers need more protection from INDOPCO. Therefore, Congress should direct the Treasury to enact regulations that codify the Third, Seventh and Eighth Circuit holdings to prevent the IRS from asserting its aggressive post-INDOPCO positions in other circuits.

197. The petitioner took this position in PNC Bancorp. 110 T.C. at 349. 198. See id. at 366. 199. E.g., Norwest Corp. v. Comm’r, 112 T.C. 89, 102 (1999), rev’d sub nom. Wells Fargo & Co. v. Comm’r, 224 F.3d 874 (8th Cir. 2000). 200. E.g., A.E. Staley Mfg. Co. v. Comm’r, 105 T.C. 166, 219 (1995), rev’d, 119 F.3d 482, 493 (7th Cir. 1997). 201. See Victory Mkts., Inc. v. Comm’r, 99 T.C. 648 (1992). 202. Id. at 655, 662.

EQUITABLE REPUDIATION: TOWARD A DOCTRINE OF FALLIBLE PERFECTION IN STATUTORY INTERPRETATION MATTHEW SCHULTZ* I. II. III. IV.

INTRODUCTION ............................................................................................... 303 THE EVOLUTION AND PEDIGREE OF EQUITY ................................................. 304 PROBLEMS WITH EXISTING INTERPRETIVE MODELS ..................................... 308 THE PARADIGM OF EQUITABLE REPUDIATION AND ITS JUSTIFICATIONS ...... 315 A. The Model Doctrine of Equitable Repudiation...................................... 315 B. Justifications for Equitable Repudiation .............................................. 316 1. Judges as Congressional Agents...................................................... 316 2. Resisting the Myth of Objectivity..................................................... 319 3. The Ability to Do Justice.................................................................. 322 V. CONCLUSION .................................................................................................. 323

I. INTRODUCTION [A]ll law is universal but about some things it is not possible to make a universal statement which shall be correct . . . . When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission . . . .1

Aristotle expressed this notion more than 2300 years ago. It has been echoed by Aquinas,2 Coke,3 Blackstone,4 and Hamilton.5 Yet it seems lost today in the debate over the proper role of courts in interpreting statutes. Rather, the modern debate largely assumes that * J.D. Candidate, May 2002, Florida State University College of Law; B.A. University of Southern Mississippi, 1992; B.A. University of Southern Mississippi, 1993; Thanks to Professor Phil Southerland for encouraging me to submit this Comment for Law Review consideration. Eternal thanks and love to Jennifer, Anne Marie and Kate, who have toiled through every step of law school with me. 1. ARISTOTLE, Nicomachean Ethics, in INTRODUCTION TO ARISTOTLE 300, 420-21 (Richard McKeon ed., 1947). 2. 2 SAINT THOMAS AQUINAS, THE SUMMA THEOLOGICA 235 (Fathers of the English Dominican Province trans., 20 Encyclopedia Britannica (1952)) (“[T]he lawgiver cannot have in view every single case[,] . . . [t]herefore if a case arise[s] in which the observance of that law would be hurtful to the general welfare, it should not be observed.”). 3. Dr. Bonham’s Case, 77 Eng. Rep. 646, 652 (K.B. 1610) (“[W]hen an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void . . . .”). 4. John Choon Yoo, Who Measures the Chancellor’s Foot? The Inherent Remedial Authority of the Federal Courts, 84 CAL. L. REV. 1121, 1152 (1996) (“Blackstone also believed that a court’s inherent powers allowed it to weigh equitable considerations in construing statutes, especially when the legislature had failed to anticipate the case presented.”). 5. THE FEDERALIST NO. 78, at 528 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“[I]t is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society . . . by unjust and partial laws.”).

303

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judges are not to depart from statutory meaning, however that meaning may be divined. Implicit in this assumption is that judges are mere congressional agents or messengers. Born of it is the myth that objective interpretation of statutes is possible. And lost in the process is the impulse to do justice. It is impossible to do justice in every case under any or all of the interpretive models arising from the modern debate. Though each model serves certain purposes well and each has its peculiar imperfections, all share one fatal defect—the self-imposed inability to depart from a statute solely because injustice would result from its application. Under traditional interpretive models, courts use subterfuge to avoid the harsh results of statutes deemed unjust in their application, rather than practicing the open and accountable exercise of equitable judicial discretion. The traditional strictures of interpretation require that courts delve into constitutional questions unnecessarily or that they find absurdity where none exists. The judicious use of equity can avoid this, however, by honoring the meaning of statutes as derived under traditional principles of interpretation, while openly declaring a refusal to apply otherwise valid and constitutionally sound statutes in situations where their application would yield injustice. Therefore, I propose not a separate model per se, but an equitable superstructure within which statutes may be interpreted according to the preferences of a given judge. Within this superstructure, statutes may be repudiated when extraordinary circumstances demand departure from a putative statutory directive. Because it seems every thesis must bear a label these days, I refer to this proposition as “equitable repudiation.” The doctrine should serve as an extraordinary remedy because it is best suited for a relatively narrow but important range of cases. In those cases, the state unjustly bears its coercive power upon one of its citizens, but the statute is not subject to valid constitutional attack. The notion of equitable repudiation stands atop a pedigree of 600 years in equity,6 is constitutionally and politically sound, and offers potential normative benefits for an age in which our courts are “choking on statutes.”7 Most importantly, it empowers our courts with a remedy of individualized justice that, although peculiar to the courts, is often left by the wayside in judicial discourse. II. THE EVOLUTION AND PEDIGREE OF EQUITY In a modern context, the term “equity” evokes notions of injunctive relief and archaic writs. Though these notions have played im6. See infra Part II. 7. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (1982).

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portant roles in equity’s lineage, they hardly represent the sum of equitable jurisprudence. That the term conjures these images reveals how much of equity has been lost to the present age. As early as 1460, English equity shared an equal footing with the common law and afforded relief on a particularized basis according to the dictates of conscience. It served as a gap-filler of sorts that “came not to destroy the law, but to fulfill it.”8 Even before this time, English courts gave exceedingly strict interpretations of statutes in favor of equitable resolution of cases,9 particularly when scrutinizing penal statutes and those in derogation of the common law.10 In such cases, the chancellor interpreted the statute “according to his customary process of juridical logic,”11 so that a statute might routinely be taken “contrary to its words,” or “against the text . . . to avoid injustice.”12 In words reminiscent of those employed to this day, the English chancery had by the sixteenth century expressed the maxim that statutes should be “so understood that neither injustice nor absurdity ensues.”13 These notions migrated across the Atlantic with the Puritan founders of the Massachusetts Bay Colony. Although the General Court of the colony initially was comprised of a legislative and adjudicative body in one, the right of equitable decisionmaking survived the split into legislature and judicature.14 By act of 1642, each Deputy was required “when acting as judge in the General Court to swear ‘to deale uprightly & justly, according to [his] judgement & conscience,’”15 prompting one modern scholar to comment that “perhaps the dimensions of democratic hostility to equity were different from what we have supposed them to have been.”16 Equity remained an integral part of colonial law and was reaffirmed in a memorandum prepared by the Magistrates of the Massachusetts Bay Colony dated June 4, 1672, in which they declared: “[E]very Court is by Law invested with a chancery power, the Jury is to proceede according to Law but if there be matter of apparent equity . . . the magistrates have power to proceede accordingly and this hath beene our constant practique when ever desired . . . .”17 This practice was recognized throughout

8. J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 87 (2d ed. 1979). 9. S.E. THORNE, ESSAYS IN ENGLISH LEGAL HISTORY 158-60 (1985). 10. Id. at 163. 11. Id. at 164. 12. Id. at 178. 13. Id. (emphasis added). 14. Mark DeWolfe Howe & Louis F. Eaton Jr., The Supreme Judicial Power in the Colony of Massachusetts Bay, 20 NEW ENG. Q. 291, 304-05 (1947). 15. Id. at 305. 16. Id. at 306. 17. Id. at 310.

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the later colonies well into the eighteenth century by applying a standard of “equity and good conscience” to legal disputes.18 During the revolutionary era, equity suffered a brief setback as part of a larger movement in favor of popularly elected legislatures.19 But public discourse during the constitutional period of the late 1780s reveals a pronounced anti-legislative sentiment following the national experience under the Articles of Confederation and illustrates the founders’ conception of courts as a check upon legislative excesses.20 Anti-federalists openly expressed dissatisfaction with the equitable powers they believed Article III granted to the federal judiciary.21 Ironically, Hamilton responded not that the courts lacked equity powers, but that they would be bound by “strict rules and precedents.”22 This was a rather clever response from one who adhered to Blackstone’s “modern” version of equity which, though precedentbased, nevertheless permitted equitable restriction of legislative enactments.23 The irony becomes richer when one takes into account Hamilton’s personal view that the judiciary could attack statutes on nonconstitutional grounds.24 An ongoing scholarly debate concerning these issues exists. For our purposes, it suffices to demonstrate that the Constitution did not signal the death of equity. Indeed, the Supreme Court’s subsequent use of equity confirms the doctrine’s vitality following Constitutional adoption. The early Supreme Court, staffed by Framers such as Justices Jay and Iredell, retained a “traditional approach to equity,” including “the invocation of non-positive sources of law” and “the exercise of discretion.”25 Though the early Marshall Court trended away from equitable doctrines, the period from 1820 to 1835 saw a return to traditional principles of equity.26 The law-codification movement of the mid18. Perit v. Wallis, 2 U.S. (2 Dall.) 252, 255 (1796) (“Though positive law, and judicial precedents, should be totally silent on the subject, the principles of morality, equity, and good conscience, would furnish an adequate rule to influence and direct our judgment.”); Lord Proprietary v. Jenings, 1 H. & McH. 92, 105 (Md. Ch. 1738); see also John R. Kroger, Supreme Court Equity, 1789-1835, and The History of American Judging, 34 HOUS. L. REV. 1425, 1438 (1998) (“By the time of the Constitutional Convention in 1787, all thirteen states had, at one time or another, granted their courts or governors equity powers.”). 19. Carlos E. González, Reinterpreting Statutory Interpretation, 74 N.C. L. REV. 585, 646, 669 (1996). 20. Id. at 646-59 (regarding popular sovereignty), 676-87 (regarding separation of powers) For opposing views on this point, compare John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001), with William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001). 21. Yoo, supra note 4, at 1154-58. 22. Id. at 1156 (quoting THE FEDERALIST NO. 78, supra note 5, at 529). 23. Id. 24. THE FEDERALIST NO. 78, supra note 5, at 524. 25. Kroger, supra note 18, at 1440. 26. Id. at 1458.

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nineteenth century has been seen as a response to the use, or abuse, of judicial discretion, as well as the ostensibly undemocratic elements inherent in the common law.27 But the fact that statutes were viewed as the proper method of reining in the courts indicates an acceptance of the constitutional judicial power to exercise broad discretion otherwise. That is, the attack was framed politically rather than constitutionally. Yet equity survived this attack. Harkening to Aristotle, Justice Story observed some years later that equity is “the correction of the law wherein it is defective by reason of its universality.”28 Elaborating on this point, Story explained that because “[e]very system of laws must necessarily be defective[,] . . . cases must occur to which the antecedent rules cannot be applied without injustice, or to which they cannot be applied at all.”29 Equitable departure from express statutory directives has survived to this day. Of particular note is courts’ willingness to toll statutes of limitations on equitable grounds despite express contrary language governing the limitations periods.30 While equitable tolling may further statutory purposes, the point remains that the courts see no constitutional impediment to equitable departure from express legislative directives. In sum, while scholarly debate concerning the proper place of equity rages on, courts continue to apply equitable principles, albeit in a limited range of issues and rarely in statutory interpretation. However, the fact that modern courts have moved away from the application of equitable principles, particularly in deference to legislative enactments, does not mean that they are constitutionally or politically prohibited from doing otherwise. Deference is a cornerstone of the theory of equitable repudiation, but modern interpretive models render courts mere congressional messengers and thus subordinate the courts to their constitutionally co-equal legislative branch. Courts must not ignore the necessity of fact-specific inquiries in each case—a judicial charge recognized at least since Aristotle’s day—and must not shy away from the repudiation of statutes where extraordinary circumstances demand particularized justice. History demonstrates that a legal system can bear judicial discretion of this magnitude. It would improve ours.

27. See ANTONIN SCALIA, A MATTER OF INTERPRETATION 10-12 (1997). 28. JOSEPH STORY, STORY’S EQUITY JURISPRUDENCE 3 (14th ed. 1918). 29. Id. at 9. 30. E.g., Rotella v. Wood, 528 U.S. 549, 560-61 (2000) (“[W]e do not unsettle the understanding that federal statutes of limitations are generally subject to equitable principles of tolling . . . .”); see also Exploration Co. v. United States, 247 U.S. 435, 447-50 (1918) (tolling express statute of limitations on equitable grounds); Sherwood v. Sutton, 21 F. Cas. 1303, 1306-07 (C.C.N.H. 1828) (Story, J.).

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III. PROBLEMS WITH EXISTING INTERPRETIVE MODELS Modern interpretive models may be categorized broadly into three genres: textualist,31 purposivist/intentionalist,32 and dynamic.33 Dynamic models typically mix elements of the first two.34 Most judges employ some hybrid of the three, with textualism as the traditional starting point in any interpretive analysis.35 Regardless of the methods employed under these models, however, three disturbing themes emerge. First is judicial subservience to the legislature. While deference is wise, it has been carried to counterproductive extremes. Judge Frank Easterbrook has gone so far as to describe judges as “honest agents” who are mere conduits for expressing legislative will.36 It is difficult to imagine that the delicate fabric of checks and balances woven into our Constitution should be reduced to such an absurdly simplistic role for the judiciary.37 Admittedly, literalists like Judge Easterbrook express by far the most slavish judicial mentality with regard to statutory interpretation, but a glimpse of the traditional models in action reveals that the remaining interpretive models have not strayed far from the plantation. I propose instead a model that defers 31. Textualism purportedly confines itself to “ordinary (as opposed to legislative) context and word-usage” while ignoring legislative history and other extraneous matters. Theo I. Ogune, Judges and Statutory Construction: Judicial Zombism or Contextual Activism?, 30 U. BALT. L.F. 4, 19 (2001). For a general defense of textualism by one of its champions, see Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119 (1998). 32. Purposivism and intentionalism demand attention to the legislature’s ostensible purpose or intent in passing the statute under review. Judge Richard Posner’s method of “imaginative reconstruction” reflects this school of thought. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817-20 (1983). 33. See González, supra note 19, at 594. 34. There are more coherent and self-contained dynamic models, but these appear to be more fashionable among scholars than jurists. See generally Ronald Dworkin, Law as Interpretation, 60 TEX. L. REV. 527 (1982); William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987). 35. See, e.g., St. Charles Inv. Co. v. Comm’r of Internal Revenue, 232 F.3d 773, 776 (10th Cir. 2000) (“As in all cases requiring statutory construction, ‘we begin with the plain language of the law.’ In so doing, we will assume that Congress’s intent is expressed correctly in the ordinary meaning of the words it employs.”) (quoting United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir. 1991)); Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998) (“[E]very exercise of statutory interpretation begins with plain language of the statute itself . . . [and] a court may depart from the plain language of a statute only by an extraordinary showing of a contrary congressional intent in the legislative history.”). 36. Frank H. Easterbrook, The Supreme Court, 1983 Term—Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 60 (1984). 37. Judge Easterbrook’s observations run counter to the essence of judging itself, as described by Justice Cardozo: “So far as they are the mere mouthpiece of a legislature . . . [judges’] activity is in its essence administrative and not judicial[,] [but] [w]here doubt enters in, there enters the judicial function.” BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 10 (1956).

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to the legislature but recognizes a court’s role and responsibility to mete out justice to individuals as individuals. Second is the myth of objectivity. The mere fact that different judges perceive the plain meaning of a given statute differently irrefutably demonstrates that pure objectivity is impossible. While it is difficult to dispute this point, there remains (particularly among textualists) a sense of infallibility and a supposed air of “obviousness” to interpretations. It goes without saying that judges should strive for objectivity, but when a judge ceases to strive for objectivity and instead deems the goal achieved, interpretation takes on a fictive quality that needs to be grounded. Equitable repudiation recognizes the inescapable reality of subjectivity but holds judges publicly accountable for its exercise. Finally, the traditional models fail to take deliberate account of justice to individuals as individuals. Ironically, while attempting to avoid the appearance of judicial legislating, courts often render policy-oriented decisions that appear more legislative in character than judicial. The rule of lenity38 is perhaps the only remaining vestige of justice for the sake of justice among the existing interpretive models. In a sense, equitable repudiation could be seen as an amplification of this rule. However the doctrine might be characterized, the judiciary must come to terms with its role as the only branch capable of dispensing justice tailored to individual circumstances. Current models, at least in their application, fail in most instances to make even passing note of this fundamental need. The Supreme Court’s 1993 decision in Smith v. United States39 exemplifies all three failings of existing interpretive models. At issue in Smith was a statute imposing severe criminal penalties upon one who “during and in relation to any crime of violence or drug trafficking crime . . . uses . . . a firearm.”40 The critical determination upon which a thirty-year prison sentence41 depended was whether the defendant’s barter of a weapon for drugs constituted “use” of that weapon within the meaning of the statute. The majority concluded that the defendant’s behavior “surely” fell “squarely” within the plain meaning of the term “use.”42 The majority sought to buttress its opinion with statistical evidence and imputed to Congress an awareness

38. “The judicial doctrine holding that a court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment.” BLACK’S LAW DICTIONARY 1332-33 (7th ed. 1999). 39. 508 U.S. 223 (1993). 40. 18 U.S.C. § 924(c)(1)(A) (1994 & Supp. V 1999). 41. Smith, 508 U.S. at 227. 42. Id. at 228-29.

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of the cited statistics.43 The majority took nine pages to explain its finding.44 The dissent, written by Justice Scalia, spent six pages to reach the opposite and equally “obvious” conclusion that the defendant had not “used” the weapon as contemplated by the statute.45 In conducting his textual analysis, Justice Scalia explained that the term “uses” really meant uses “as a weapon,” a conclusion deemed “reasonably implicit” in the statutory text.46 In the end, each side claimed title to the statute’s plain meaning. Justice O’Connor’s plain meaning prevailed by garnering six votes including her own and cleared a path for the defendant to begin a lengthy federal prison sentence.47 This decision typifies the reluctance of judges to unfetter themselves from congressional control. O’Connor’s majority opinion employed the ostensibly plain meaning of the congressional enactment while backing up its position by resorting to congressional purpose.48 Characteristically, Scalia’s dissent eschewed congressional intent per se and relied instead upon the meaning of the law as written by Congress.49 O’Connor was thus a willing slave to congressional text and purpose, while Scalia remained a prisoner of his own statute-bound philosophy. There was never a question whether the Court should do anything other than Congress had purportedly directed, even where different judges interpreted its directions differently. The Court’s opinion creates an inescapable inference that judges have engaged in selective and discretionary interpretations, even under the strictest—i.e., most slavish—interpretive models. Courts exercise discretion through conscious or unconscious value judgments, as in the strict textualist’s fictive refusal to employ discretion when mining statutory language that purportedly reveals itself free of all earthly values. The majority’s resort to purposivism did little to free its hands. Justice O’Connor claimed authoritatively that a restrictive reading of the term “uses” would “do violence” to the purpose of the statute.50 This assertion rested not on any legislative materials but upon the recitation of murder statistics in New York City and Washington D.C. for a period of time three years after the relevant amendment of

43. Id. at 240. The Court later compounded this fiction by relying upon the statistics and conjectural congressional intent described here as the settled “basic purpose” of the statute. Muscarello v. United States, 524 U.S. 125, 132 (1998). 44. Smith, 508 U.S. at 228-37. 45. Id. at 241-47. 46. Id. at 244. 47. See id. at 225-40. 48. Id. at 227-29, 233-36. 49. Id. at 241-47. 50. Id. at 240.

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the statute at issue.51 She saw “no reason why Congress would have intended courts and juries applying § 924(c)(1) to draw a fine metaphysical distinction between a gun’s role in a drug offense as a weapon and its role as an item of barter . . . .”52 The Court thus fashioned a legislative purpose based upon sheer speculation, with no attempt to hide that fact. The impulse to carry out congressional will is reasonable and necessary, but in Smith the Court failed to inject, at least overtly, any concerns it may have had over the rule that Congress seemingly attempted to lay down. The Court’s unwillingness to break congressional chains is laudable in easy cases, but it exacerbates the potential for injustice when the congressional message is garbled. This danger is magnified when an unclear message is professedly received loud and clear, which leads directly to the second and more disturbing of the problems with traditional interpretive models—the illusion of infallible objectivity. If anything is obvious from the Smith decision, it is that “[e]veryday language is a part of the human organism and is no less complicated than it.”53 To claim an objective monopoly on the meaning of words betrays ignorance or insincerity. Either is dangerous in the business of interpreting statutes. Admittedly, statutes may at times be written in plain language capable of unanimous interpretation, assuming no other considerations militate against that approach. Those are the easy cases. But a divided court carries the fiction too far when it reaches irreconcilable conclusions on the basis of a statute’s ostensibly “plain” meaning. Judge Hand once observed: “The duty of ascertaining [a statute’s] meaning is difficult enough at best, and one certain way of missing it is by reading it literally, for words are such temperamental beings that the surest way to lose their essence is to take them at their face.”54 Courts universally begin statutory analysis with the “plain meaning”—as well they should. But the myth of objectivity often combines with this endeavor to produce an arrogance that undermines the purpose at hand. The Smith opinion compels the conclusion that the statute at issue was hopelessly ambiguous as applied to the defendant in that case. It simply could not mean what both sides declared it to mean, and such circumstances render impossible a “correct” interpretation on any grounds other than personal preference or prejudice. Disturbingly, this deterred neither side, even though each was fully aware 51. Id. 52. Id. 53. LUDWIG WITTGENSTEIN, TRACTATUS LOGICO-PHILOSOPHICUS § 4.002 (1921). 54. Learned Hand, The Contribution of an Independent Judiciary to Civilization, in THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1692-1942, at 59,60 (Mass. Bar Ass’n ed., 1942).

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that the other reached the opposite conclusion. Each side deemed itself beholden of the objective truth, or at least the task of convincing the public that they were so. The danger posed to justice is the same in either event. Finally, the Smith case begs the question of what statutory interpretation is about. It is, or should be, about discerning the meaning of a given statute to the extent that meaning can be applied reasonably to the facts—or more precisely, to the litigant before the court. But to what extent does the fate of a defendant matter? The majority characterized the defendant and the facts of the case primarily to garner sympathy for its interpretation. It included in its recitation gratuitous facts such as the number and type of weapons found in the defendant’s van.55 Justice Scalia’s dissent added in its final three sentences the argument that the statute was at least ambiguous enough to invoke the rule of lenity—though one gets the impression he included this more as a defense of his interpretation than from any concern for the defendant.56 In short, the opinion expresses no worries that a thirty-year prison sentence depends upon the outcome of the Court’s war of words. Although this defendant, at least as painted in the opinion, might “deserve” the punishment meted out, our judiciary is the only institution capable of addressing fact-specific arguments for leniency under otherwise valid statutes. Its doctrinal refusal to do so thwarts one of the core purposes of having courts in the first place. These three problems—the congressional “agent” mentality, the myth of objectivity, and the failure to do justice—are the core issues redressed by the doctrine of equitable repudiation. Before addressing the doctrine’s specifics, however, it would be useful to briefly visit a case where the Court achieved the same level of jurisprudential culpability by committing an entirely different philosophical crime: subterfuge. Church of the Holy Trinity v. United States57 involved a statute banning contracts for employment of aliens within the United States.58 The sympathetic defendant was the Church of the Holy Trinity, which hired the Reverend E. Walpole Warren from abroad to serve as its rector in New York City.59 The Supreme Court admitted at the outset that the church’s contract with Warren fell “within the letter” of the statute.60 The Court did not dispute whether the plain 55. Smith, 508 U.S. at 226. 56. See id. at 246 (Scalia, J., dissenting) (quoting Adamo Wrecking Co. v. United States, 434 U.S. 275, 284-85 (1978)). 57. 143 U.S. 457 (1892). 58. Id. at 458. 59. Id. at 457-58. 60. Id.

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language of the statute included the church’s contract. Rather, the Court dug beneath the plain language and unearthed a congressional intent that excluded the church from the act. The Court invoked the maxim that no statute may be construed in a manner that achieves an absurd result.61 It visited briefly the title of the act and its legislative history, while expounding against any law that might be deemed to inhibit the exercise of the Christian faith.62 Ultimately, the Court exonerated the church on these specious grounds.63 Of greatest interest in Holy Trinity is the Court’s citation to United States v. Kirby.64 After a description of the facts in Kirby, the Court quoted a portion of its holding: “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or an absurd consequence.”65 This reveals a tension between the Court’s desired result on the equities and the obligation it felt toward congressional deference. The Court clung awkwardly to the fiction of congressional deference while satisfying its desire for an equitable outcome. It did not, however, repudiate the statute on equitable grounds—i.e., because of “injustice”—as it might have done under Kirby. Rather, it deemed the statute an absurdity.66 While the ultimate outcome is the same whether the Court invokes injustice or absurdity, the route taken is of paramount importance, as will be seen below. Holy Trinity is the Hyde to Smith’s Jekyll. While Smith committed the three cardinal sins of traditional interpretation discussed above,67 Holy Trinity only pretended to commit them. Though the Court in Holy Trinity relied on Kirby to avoid the statute as absurd, it could have relied just as easily on Kirby to find the statute unjust in its application.68 Instead, it feigned deference to Congress through an analysis of legislative intent.69 While the Court made no attempt to disguise the favor with which it viewed the defendant and the Christian faith, it nevertheless framed this matter not as an equitable one favoring the church but as an indication of legislative intent.70 This brings a critical point to light. Under traditional modes of interpretation, a court can freely reach virtually any result it wishes. This is an important response to the inherent skepticism of the equi61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

Id. at 459-61. Id. at 462-72. Id. at 470-72. Id. at 460 (citing United States v. Kirby, 74 U.S. (7 Wall.) 482, 486 (1868)). Id. at 461 (emphasis added). Id. at 470-72. See supra pp. 308-09. Holy Trinity, 143 U.S. at 461. Id. at 463-65. Id. at 465-72.

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table discretion proposed under my theory of equitable repudiation. Whereas Smith resorted to exaggerated notions of accuracy and Holy Trinity engaged in crass pretense, the equitable repudiation model demands explanation and accountability for any departure from apparent legislative directives. In contrast, Holy Trinity and Smith reflect a mere mirage of jurisprudence. The Court in Holy Trinity imposed its will by specious reasoning based upon a thumbnail sketch of ostensible congressional intent. In Smith, the majority handed down a belabored “plain” meaning of a statute that was patently ambiguous in its application. The dissent in Smith, though less freewheeling, suffered instead from a hidebound approach brought on by a myopic and delusional interpretive philosophy. While traditional interpretive models may be useful in determining the proper and consistent meaning of positive law in easy cases, the easy cases are just that—easy. A fundamental problem persists with respect to all other cases. If a court deems itself incapable of departing from congressional will, however that may be determined, yet it wishes consciously or unconsciously, for personal or philosophical reasons, to reach a result contrary to the statute’s “meaning,” it will produce a schizophrenic opinion. Worse, it may simply engage in subterfuge ranging from specious reasoning to constitutional attacks upon the statute. Equitable repudiation faces these issues squarely with the ability to repudiate statutes if the situation demands such an extraordinary remedy. To the extent this might be deemed judicial legislation, consider the observations of Justice Holmes on this point: The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious . . . . [I]f the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.71

Though Holmes would hardly agree with the assertion that personal notions of justice should guide judges in the application of statutes, his point supports it in that judges abdicate their responsibility by taking refuge in the fiction that they are not actively involved in the shaping or making of law. I take this observation a step further by embracing its inevitability and attempting to make some just le-

71. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 184 (Harold J. Laski comp., 1920).

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gal use of it. The question, then, is how to formulate a corresponding doctrine. IV. THE PARADIGM OF EQUITABLE REPUDIATION AND ITS JUSTIFICATIONS

A. The Model Doctrine of Equitable Repudiation As demonstrated in Part III, three fundamental problems inhere in the traditional models of statutory interpretation: the congressional “agent” mentality,72 the myth of objectivity,73 and the resulting failure to do justice on a particularized basis.74 To embrace the notion of equitable repudiation, a judge must come to terms with all three. An outline of this necessarily inchoate doctrine will help reveal the need for and the manner of doing so. Five principles may be enumerated: 1. A court owes deference to any popularly elected legislature and should, wherever possible, apply a statute as written to the facts before it. 2. A court may not strike down a statute for reasons other than unconstitutionality; it may merely refuse to apply a statute where application would render a gross injustice, with the aim of preserving justice generally and the statute as applied to other facts. 3. A court should generally refuse to apply any statute that is ambiguous as to the facts before the court if that statute: (i) imposes a serious criminal penalty; (ii) imposes any sanction for the exercise of a right deemed fundamental under the U.S. Constitution; (iii) imposes a direct restraint on the property or liberty of any citizen; or (iv) has other serious penal consequences or coercive effects upon any civil or criminal litigant before the court. 4. In determining whether to repudiate a statute, a court should consider all attendant facts and circumstances, including: whether repudiation of the statute in favor of one litigant would demonstrably affect another identifiable person or party; whether the defendant was reasonably able to conform his or her conduct to the dictates of the statute prior to engaging in the behavior at issue; and whether considerations other than ambiguity also tend to render the statute unfair in its application. 5. Repudiation is an extraordinary remedy.

Given the mercurial nature of equity, these can serve only as guideposts at best. The first reminds us that legitimate popular sovereignty and separation of powers concerns arise whenever a court 72. See supra pp. 308-09. 73. See supra p. 309. 74. Id.

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departs from a legislative directive. As demonstrated above, however, it is important that courts not lose sight of the fact that these are concerns and not prohibitions. The second guidepost reinforces the notion that this doctrine applies even where a statute is not constitutionally suspect but ensures that the statute is not stricken in the manner of a constitutional attack. Rather, it is repudiated as inequitable in a given set of circumstances. The third guidepost is not intended as an exhaustive list of circumstances in which a statute may be repudiated. Instead, it emphasizes the gravity of circumstances in which repudiation might be appropriate, including circumstances beyond the criminal sphere, e.g., in cases of civil commitment or forfeiture. The fourth guidepost reiterates the need to balance considerations other than mere ambiguity in a statute, as well as any concerns that militate against justice in favor of a specific litigant. The fifth is a final reminder meant to evoke other circumstances in which courts afford extraordinary relief. One may view these as an outrageous encroachment upon legislative authority or as an incremental increase in the severity with which existing maxims are applied, e.g., the maxims of lenity and strict construction of statutes derogating common law. For reasons discussed above, they are constitutionally permissible principles, and for reasons discussed below, they are a desirable framework within which existing interpretive models might function. B. Justifications for Equitable Repudiation The failures of traditional interpretive models provide the greatest recommendation for equitable repudiation. It makes sense, then, to address the need for it in terms of the shortcomings of other doctrines. 1. Judges as Congressional Agents The first shortcoming is the exaggerated notion that judges are mere agents of Congress. As mentioned above, the American Revolution saw a popular movement in favor of elected legislators.75 But by the time of the Constitutional Convention, which followed a period of legislative dominance under the Articles of Confederation, the Framers widely considered the judiciary a check upon congressional excesses. The views of Hamilton and Madison, among others, confirmed that “judges owe an agency duty directly to the people and not to Congress . . . .”76 The Framers did not limit this duty to judicial review on a constitutional level. Hamilton wrote: “[I]t is not with a 75. González, supra note 19, at 646-59. 76. Id. at 656.

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view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society . . . by unjust and partial laws.”77 Both Madison and Gouverneur Morris spoke of the public dangers posed by “legislative usurpations,”78 and Hamilton voiced the sentiments giving rise to this view: The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments.79

Equitable repudiation meets these concerns. It imposes a judicial barrier between the excesses or omissions of a majoritarian legislature and the citizens whom that legislature has been elected to represent. Given the rhetoric from the textualists’ champion, Justice Scalia, there is a dire need for equity of some description. In typically slavish fashion, Justice Scalia says that, regardless of his personal views concerning the merits of a given statute, “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.”80 This may prove a fine and consistent academic approach, but judges deal in human lives on a daily basis. It simply will not do in many peoples’ minds, or in the minds of Hamilton and Madison apparently, for Congress to enact a “foolish” statute with the expectation that courts will carry it to its knavish ends. Indeed, I would go so far as to hold this approach unconscionable where the better portion of a defendant’s life depends upon the outcome, particularly when it is combined with the selfdeprecating conceit inherent in the textualists’ philosophy.81 Of course, the judiciary must mediate where justice demands it. Equitable repudiation does so without the need for constitutional attacks upon otherwise valid statutes, and avoids the subterfuge of feigned congressional deference. This, in turn, illuminates the doctrine’s important normative benefits. If judges are forced to express their unwillingness to apply a statute and to justify that hesitancy in a written opinion on the equities of a case, they are likely to take a hard look at their reasons before doing so. Two things happen here. First, the judge’s ability to apply 77. THE FEDERALIST NO. 78, supra note 5, at 528. 78. González, supra note 19, at 648-50. 79. THE FEDERALIST NO. 71, at 483-84 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), quoted in González, supra note 19, at 649. 80. SCALIA, supra note 27, at 20. 81. See discussion infra Part IV.B.2.

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the doctrine willy-nilly is tempered by the possibility of reversal, scholarly ridicule, or perhaps most importantly, the innate fear of publicly making a fool of himself. This is not as flippant an analysis as it may appear. The judiciary is conservative by nature and ours is one already possessed of a tremendous—indeed unhealthy— deference for legislative enactments. Few judges would take lightly the task of openly repudiating a statute without sufficient justification. Holmes’ statement quoted above makes this point.82 A second benefit is related inexorably to the first. If judges search themselves in this manner before repudiating a statute, they will likely apply the doctrine only in those cases where it is sorely needed. That is to say, one of the overriding factors in any judge’s soul-search will be the merits of the litigant’s appeal to equity. Ultimately, this should mean that the doctrine is applied sparingly, supported by an articulable basis, and invoked only in the neediest of cases. This provides the perfect prescription for curing the judiciary’s current pathological deference to Congress. The doctrine also preserves statutes. A court need not attack the constitutional validity of a statute to reach an equitable result—a common scenario in cases of so-called liberal activism. Nor must a court, wishing to reach an equitable result, don the mask of deference worn in Holy Trinity. The first scenario undermines the separation of powers, while the second discredits the moral authority of the courts. With the doctrine of equitable repudiation, however, a court can freely recognize that even an otherwise valid statute may suffer for its universality. Few would consider earthshaking the idea that legislators cannot foretell the endless factual scenarios that might ultimately fall within the orbit of a given act. Aside from the presidential pardon power, there exists no other constitutional process for determining whether a given individual should be subjected to laws of general application. It is the unique role of the judge to ensure that citizens, including criminals, do not fall between the institutional cracks if the substantive protections of our laws are to have moral force or real meaning. Equitable repudiation offers a means for carrying out this task without unnecessarily striking statutes and without feigning deference, both of which polarize the judicial/legislative relationship and undermine the legitimacy of our courts. Justice McKenna’s dissent in Caminetti v. United States83 made a similar point. He cited a number of cases that disregarded, limited, or extended statutory wording in order to further the purposes of the act.84 He then explained the need for the rule in such cases: 82. See HOLMES, supra note 71, at 184. 83. 242 U.S. 470 (1917). 84. Id. at 500-01 (McKenna, J., dissenting).

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It not only rescues legislation from absurdity (so far the opinion of the court admits its application), but it often rescues it from invalidity, a useful result in our dual form of governments and conflicting jurisdictions. It is the dictate of common sense . . . . Nor is this judicial legislation. It is seeking and enforcing the true sense of a law notwithstanding its imperfection or generality of expression.85

Justice McKenna spoke in terms of furthering a statutory purpose rather than repudiating it. Yet his thoughts are relevant to the extent that repudiation applies a statute narrowly, or not at all, while preserving it in all other valid applications. With this in mind, repudiation of a statute appears not as a judicial usurpation but as a narrow refusal in a specific context—a flag of distress marking a problematic point. If handled properly, this could well lead to dialogue between courts and the legislature. If not handled properly, then the final word lies where it should—with the judges, who are the final arbiters of statutes under every conceivable interpretive model. To do otherwise abdicates a judge’s duty as public agent in favor of his role as congressional agent—an ironic twist given that congressional deference rests upon its majoritarian character. If, as happened in Smith, a court finds itself divided over the meaning of a statutory term following fifteen pages of explanation, it should not claim certitude. It should exonerate the defendant due to an inherent defect in the universality of the statute. In this way, judges may save a law in its remaining applications but retain the essence of their role as adjudicators of individual affairs. 2. Resisting the Myth of Objectivity The second major task accomplished by an honest application of the equitable repudiation doctrine is the judiciary’s acceptance of subjectivity as an inescapable feature of judging. The fluidity of equity seems to be the prime objection to it. Yet we have seen in Holy Trinity that discretion may be applied bluntly behind a thin veil of deference. Much as the alcoholic’s first step to recovery is in recognizing the illness, our judges must admit themselves incapable of perfect objectivity. Equitable discretion is mercurial and subject to inconsistency. Yet “[a] lively appreciation of the danger is the best assurance of escape from its threat . . . .”86 It must be foremost in any judge’s mind that he or she does indeed owe fidelity to Congress in construing statutes, unless justice demands otherwise.87 In response

85. Id. at 501 (McKenna, J., dissenting). 86. EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 29 (1961) (quoting United States v. Am. Trucking Ass’n, 310 U.S. 534, 542 (1940)). 87. Even Justice Scalia has admitted “[t]here are worse things than unpredictability and occasional arbitrariness. Perhaps they are a fair price to pay for preservation of the

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to the obvious objection, “justice” must necessarily be measured by the “Chancellor’s foot,” as that is the only measure available. Judges act in equity on a daily basis and are well versed in the application of extraordinary remedies. It would be illegitimate to presume our courts incapable of exercising measured discretion when, in reality, they do so in every instance of statutory interpretation. To apply equity openly and consciously would require self-examination and an honest attempt toward objectivity. Thus, to strive for objectivity should be the goal of every judge; to believe it has been obtained, however, is what I call the myth of objectivity. It leads to a mind-set that cannot be reasoned with: the delusion of infallibility. The strict textualist is perhaps most dangerous in this regard, and so it is no wonder that Justice Scalia’s writings portray as clearly as any the myth of objectivity at work. His synopsis of statutory interpretation is telling: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”88 This is akin to telling a football squad that to win it need only score more points than the other team. For this to have any broad application, a judge must either embrace diverse interpretations equally or else believe himself, consciously or otherwise, the infallible oracle of truth. Scalia falls squarely into the latter category. In writing on the Smith opinion, Scalia blandly asserts that “[t]he phrase ‘uses a gun’ fairly connoted use of a gun for what guns are normally used for, that is, as a weapon.”89 Elsewhere, he casually dismisses decades of scholarship and Supreme Court precedent by asserting that the Due Process clause “quite obviously” does not include a substantive component.90 The only problem with his analysis in Smith is that a majority of our Supreme Court interpreted the matter differently, just as generations of capable judges have read a substantive component into the Due Process clause. Scalia’s self-assuredness rises to a level of steadfast arrogance, redolent of the religious zealot who claims title to the truth. In fact, this is indispensable for the textualist because the entire interpretive philosophy relies upon the premise that language may carry a singular and unerringly discernible meaning. Note that Scalia is willing to apply “foolish” laws as written because that is the duty of any faith-

principle that one should not be held criminally liable for an act that is not clearly proscribed . . . .” SCALIA, supra note 27, at 28. 88. Id. at 23. 89. Id. at 24. The author happens to agree strongly with Scalia’s interpretation in this instance but recognizes that this belief does not render the statute unambiguous or prove all who disagree wrongheaded. 90. Id.

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ful textualist;91 yet it seems never to occur to him that just as laws may be written foolishly, so might they be interpreted foolishly, even by him.92 To admit this would undermine the very foundation of textualism as an interpretive paradigm. At best, it would admit that courts will make mistakes for which litigants, including criminal defendants, must pay the price. Though differences with this philosophy might at root prove a matter of preference, it is difficult to shake a predilection for caution when the personal liberties of citizens are involved. Moreover, Scalia loses the forest for the trees by having citizens pay the price for foolish laws or foolish interpretations of those laws because a “good” judge defers to Congress based upon congressional accountability to the citizens. This seems akin to withholding money from a starving man so you can donate to the United Way. Most disturbing, however, is Scalia’s and all textualists’ necessary belief that one correct interpretation exists. While convenient, this argument flies in the face of ordinary experience with the vagaries of language. Unfortunately, the textualists are not alone. The majority opinion in Smith also betrayed this brand of self-assuredness. The opinion reads as if the Court would appear less correct or less authoritative were it to admit the difficulty of the question. Instead, it emphatically denied any ambiguity and ultimately claimed title to the “correct” interpretation of the statute . . . by two votes.93 While purposivism and intentionalism provide room for equitable treatment of cases, they do not demand judicial attention to any notion of fairness. As such, they do little to mitigate the tendency toward the myth of objectivity and might arguably promote a failure of self-examination and candor in judicial opinions. Put simply, they make it easier to fudge. The myth of objectivity shrouds the fundamental inability of any one human to commune with another to the degree required in “hard” cases like Smith. Judges easily forget or ignore that they bring inherent values and prejudices to each decision and that, as a matter of base human nature, they likely hold a preference for one outcome or another for reasons known or unknown. Often these preferences may arise subconsciously, tending toward manipulation of

91. Id. at 20. 92. The Corbin-Williston debate over facial ambiguity in contract interpretation visits upon these issues. Common sense and the mere existence of this debate militate against the premise that language can be infallibly interpreted on its face. Nor is it enough to simply try one’s best. Rather, to progress beyond the fictions comprising the myth of objectivity, there must be an admission that the act is impossible. 93. The Court rejected the defendant’s appeal to the rule of lenity by deeming the statute unambiguous. Smith v. United States, 508 U.S. 223, 239-40 (1993).

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the rules, as in the use of interpretive maxims,94 and toward the exaggerated belief in the obviousness of one’s conclusions. This topic could fill a volume in its own right. It suffices for present purposes to point out that the doctrine of equitable repudiation aspires to perfect objectivity but relies in no way upon the unattainable myth that it can be achieved. Rather, it demands that a judge come to terms with subjective inevitabilities and, ideally, that the judge’s opinion address these matters as an inherently defensive posture. 3. The Ability to Do Justice Of course, the point of this entire doctrine—and of equity generally—is to achieve basic fairness. By unfettering the judiciary from the congressional hold that has become a cherished institution in itself, the doctrine affords flexibility. By shattering the myth of objectivity, judges are forced to analyze the reasons they reach, or wish to reach, particular results. It is categorically impossible to do justice on a case-by-case basis merely by interpreting universal rules of general applicability. This is precisely why equitable concerns tend to creep into opinions. Unfortunately, they are let in the back door and told to keep quiet. This reveals an odd state of affairs given the pedigree of equity and the absence of any constitutional bar to judicial repudiation of statutes. As noted above, courts employ equity on a daily basis.95 The equitable tolling of limitations periods is a perfect example of equitable repudiation employed on a routine basis in the name of justice.96 Likewise, courts deal routinely in extraordinary remedies. The doctrine of equitable repudiation’s similarity to a judgment notwithstanding the verdict (JNOV) provides an example. Like JNOV, equitable repudiation would be seldom used but drastically needed when invoked. And, incidentally, it would be subject to appellate review as with the JNOV. It proves difficult, then, to countenance the predictable objection that the courts will run amok if given outright the power to ignore congressional enactments in the nebulous name of “justice.” Humans are not machines, and justice will never achieve precise consistency even if we employ the most mechanical interpretive models. Rather, if justice can exist at all, it can come only from the interaction of human beings and from the observations of one who bears uniquely human capacities: wisdom, empathy, and even the ineffable, visceral hunch. We make choices each moment based

94. See, e.g., Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 VAND. L. REV. 395, 401-06 (1950). 95. See supra pp. 319-20. 96. See cases cited supra note 30.

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upon an inscrutable combination of these qualities. And we often make mistakes. But few would find it anything other than ludicrous to suggest that we fashion a consistent, objective model to resolve the inscrutabilities and correct the mistakes. The task is simply impossible. It is astonishing, then, that we seek to achieve just that on an exponentially more complex level of criminal adjudication while refusing to trust that our instincts might yield fair and permissibly consistent results. Regardless of whether one agrees with these observations, it is difficult to make the case that existing interpretive models have resolved the objections that might be lodged against the equitable repudiation of statutes. At worst from a social standpoint, a judge will err on the side of liberty—a notion we embrace on a constitutional level. At worst from a litigant’s standpoint, a judge will refuse to apply the doctrine and rely solely upon existing models. In this sense, what have we to lose? V. CONCLUSION To those who fear judicial usurpation, understand that it can happen at this moment with no accountability. To those who fear the inconsistency of judicial discretion, understand that it can happen at this moment with no accountability. The same response can be made to virtually any objection. Our system allows the courts to always have the final say over legislation. This tremendous responsibility should not—and would never, I think—be disregarded lightly. Judges should explain themselves if they wish to depart from ostensible legislative will. In doing so, they will restore the judiciary as a co-equal branch and fulfill their obligations as agents, not to a majoritarian legislature, but to the majority itself or to its constituents whose rights are at issue. Perhaps most important for judges, they will be forced to examine their motives and their reasoning. They will have to balance the “will of people” against the rights of the individual. In the end, we may lose the illusion of consistency, the illusion of deference, and the illusion of objectivity; but we might find the reality of justice flourishing in their place.