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CLINTON LIBRARY PHOTOCOPY
FOIA Number: 2009-1007-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Counsel Office
Series/Staff Member:
Doug Band
Subseries:
OA/ID Number:
12689
FolderID:
Folder Title:
Sotomayor ABA Final [2]
Stack:
Row:
Section:
Shelf:
Position:
V
6
6
10
1
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001a. form
re: SF-86 Sotomayor (22 pages)
04/15/1997
P6/b(6)
001b. form
re: Waiver - Sotomayor (2 pages)
04/15/1997
P6/b(6)
001c. form
re: Fingerprints - Sotomayor (1 page)
04/15/1997
P6/b(6)
001d. form
re: Waiver - Sotomayor (1 page)
02/28/1997
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12689
FOLDER TITLE:
Sotomayor - ABA Final [2]
2009-1007-F
jp1522
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b))
P1 National Security Classified Information [(a)(1) of the PRAJ
b(1) National security classified information |(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
an agency |(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIAJ
financial information |(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information ((b)(4) of the FOIA)
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA)
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the
FOICLINTON LIBRARY PHOTOCOPY
RR. Document will be reviewed upon request.
LINTON LIBRARY PHOTOCOPY
SOTOMAYOR RESPONSE TO
PERSONAL DATA QUESTIONNAIRE
QUESTION 22
Attached is a copy of the complaint in the only pending action against my former law firm, Pavia
& Harcourt.
LINTON LIBRARY PHOTOCOPY
Index No. 30139/91
Year 19
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STANLEY WEST,
Plaintiff,
-against-
PAVIA & HARCOURT, ESQS.,
a New York Partnership,
Defendants.
AMENDED VERIFIED COMPLAINT
LEWIS and FIORE
Anoracys for Plaintiff
225 BROADWAY
NEW YORK N. Y. 10007-3001
(212) 285-2290
To:
Attorney(s) for
Service of a copy of the within
is hereby admitted
Dated:
Attorney(s) for
PLEASE TAKE NOTICE
that the within is a (cartified) true copy of a
Check Applicable Ben
NOTICE OF
entered in the office of the derk of the within named Court on
19
ENTRY
that on Order of which the within is a true copy will be presented for settlement to the Hon
MOTICE OF
one of the judges of the within named Court,
SETTLEMENT at
not
19
at
M
Dated:
LEWIS and FIORE
Attorneys for
225 BROADWAY
To:
NEW YORK N.Y. 10007-3001
Attorney(s) for
01/01 PAGE
5010086.01
FEB-27-97 16.08 FROM P AND H
LINTON LIBRARY PHOTOCOPY
mail 10/5/92
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
STANLEY WEST,
Plaintiff,
AMENDED
VERIFIED COMPLAINT
-against-
PAVIA & HARCOURT, ESQS.,
Index #: 30139/91
a New York Partnership,
Defendants.
X
Plaintiff, by his attorneys, Lewis & Fiore, complaining
of the defendant, does hereby allege as follows:
AS AND FOR A FIRST CAUSE OF ACTION
1. Plaintiff, Stanley West (hereinafter West), is a
resident of the State of New York, City of New York, and a former
client of the defendant.
2. Defendant is and was for all times mentioned herein,
upon information and belief, a New York partnership engaged in the
practice of law with offices at 600 Madison Avenue, and is made up
of a number of attorneys who are together engaged in the practice
of law under the firm name of Pavia & Harcourt.
3. Defendant was the attorney for Marcar Restaurant and
Catering Corp. d/b/a L'Hostaria del Bongustaio (hereinafter
referred to as Marcar), from January 13, 1983 through and including
November of 1988.
4. In 1988, defendant was retained by plaintiff and
2/10 PAGE
H AND FROM.P 90.91 FEB-27-27
LINTON LIBRARY PHOTOCOPY
Gennaro Picone (hereinafter referred to as Picone), to represent
them in the formation of a new business with the intention of
forming a new corporation, acquiring a location to conduct a
restaurant business and performing all other necessary legal
services to protect the rights of Picone and West.
5. Defendant accepted employment on behalf of West and
Picone and was paid for its services and performed a number of
services for West and Picone.
6. The defendants drafted and filed a Certificate of
Incorporation for the formation of a new business corporation known
as Malvasia, Inc.
7. The defendants drafted a shareholders' agreement
between West and Picone.
8. The defendants drafted and accepted by-laws for
Malvasia, Inc.
9. The defendants served as incorporators of Malvasia,
Inc.
10. The defendants prepared a Waiver of Notice of the
first meeting of the Board of Directors.
11. The defendants prepared the Minutes of the first
meeting of the Board of Directors of Malvasia, Inc.
12. The defendants served as an interim secretary of
Malvasia, Inc.
13. The defendants prepared written consent of the Board
of Directors, accepting the resignation of one of the defendant's
members as secretary and appointing West as secretary of Malvasia,
Inc.
PAGE
FEB-27-97 16.06 FROM.P AND H
LINTON LIBRARY PHOTOCOPY
14. The defendants prepared a corporate resolution
providing that Picone be the one and only signatory on the
corporate bank account, and be authorized to conduct all banking
business on behalf of the corporation.
15. The defendants prepared a written consent of the
Board of Directors, authorizing Picone, and Picone alone, to
negotiate and bind the corporation in all respects, for the
purchase of the business of Marcar.
16. The defendants prepared a document indicating
unanimous consent of the Board of Directors, for Picone to be the
sole signatory on the Corporate bank account and to conduct all
corporate business, including the obtaining of loans on behalf of
the Corporation.
17. The interests of Picone and West, by virtue of their
proposed roles in the Corporation, were, from the outset, different
and adverse.
18. Picone was a professional chef who was intended, by
the parties, to be a full time employee of the Corporation.
19. West was a novice to the restaurant business who was
intended by the parties, to supply the necessary funds to form and
operate the Corporation.
20. Defendant knew, or should have known, of the
conflicting and diverse interests of West and Picone.
21. Defendants should not have undertaken the tasks of
representing both West and Picone.
22. In any event, defendant should have made full
disclosure of the actual and potential conflicts between the
01/6 PAGE
FEB-27-97 16.06 FROM,P AND H
LINTON LIBRARY PHOTOCOPY
diversity of interest between West and Picone, to West, and should
have advised West to retain counsel to represent his interest, as
opposed to the interest of Picone.
23. Defendant failed to make disclosures of the actual
and potential conflict between the interest of Picone and West, to
West, and failed to advise West to seek independent counsel to
represent his interest.
24. Defendants were negligent in their representation of
West, failed to exercise reasonable care in their representation of
West and caused West to suffer damages.
25. Defendants knew, or should have known that their
professional judgment in representing both West and Picone would,
by the nature of the transaction, be compromised and that they
would be incapable of the proper level of independent professional
judgment in their representation of West.
26. Defendant represented to West that his rights were
protected by virtue of the legal services rendered and the
representation rendered by the defendants.
27. West relied upon the representations of the
defendant, that his rights were protected by virtue of the legal
services provided by the defendants.
28. West reasonably relied upon the representations of
the defendant, as described above.
29. In reasonable reliance upon the representations of
the defendant, West invested substantial sums of money, by virtue
of capital contribution and loans to Malvasia, Inc.
30. Defendant's failure to advise West to retain
11/5
PAGE
5810086.01
H AND FROM: 29.02
LINTON LIBRARY PHOTOCOPY
independent counsel to represent his interest, was grossly
negligent in that West was in the process of investing substantial
sums of money in Malvasia, Inc, so that independent counsel could
have been retained at a relatively small cost in comparison to the
large sums of money being risked by West.
31. Defendant knowingly and intentionally acting on
behalf of the interest of others, failed to advise West to retain
independent counsel, failed to represent West's interest in the
preparation of legal documents while representing to West that his
interests were protected.
32. Defendant represented Malvasia, Inc. and Picone
against West in a legal action known as Stanley West V. Malvasia,
Inc. and Gennaro Picone, in the Supreme Court of New York County.
33. As a result of the foregoing, West has suffered
damages in the amount of $700,000.00.
AS AND FOR A SECOND CAUSE OF ACTION
34. Plaintiff repeats each and every one of the above
allegations with the same force and effect as if restated in full
here.
35. The defendants performed the above described acts
intentionally, for the benefit of another and against the interest
of West.
36. As a result of the foregoing, Plaintiff has suffered
special damages, in that his entire investment of $700,000.00 in
the business venture has been lost to him because the business has
closed and is no longer functioning.
11/9
PAGE
5813086.01
H AND FROM:P 29.07 PEB-27-27
LINTON LIBRARY PHOTOCOPY
AS AND FOR A THIRD CAUSE OF ACTION
37. Plaintiff repeats and realizes each and every
allegation contained in the above paragraphs as if restated in full
here.
38. As outlined above, defendant made negligent
misrepresentations to West.
39. As a result of the foregoing, plaintiff has been
damaged in the sum of $700,000.00.
WHEREFORE, it is respectfully requested that plaintiff be
granted judgment for damages in the amount of $700,000.00 upon the
first, second and third causes of action.
DATED:
New York, New York
August 24, 1992
LEWIS & FIORE, ESQS.
Attorneys for Plaintiff
Office and P.O. Address:
225 Broadway, Suite 3300
New York, New York 10007
(212) 285-2290
01/2
PAGE
FEB-27-97 16.07 FROM.P AND H
LINTON LIBRARY PHOTOCOPY
INDIVIDUAL VERIFICATION
STATE OF NEW YORK
)
COUNTY OF-KINGS nun York
:
SS.:
)
STANLEY WEST, being duly sworn, deposes and says:
deponent is the plaintiff in the within action; deponent has read
the foregoing Amended Verified Complaint and knows the contents
thereof; the same is true to deponent's own knowledge, except to
those matters therein stated to the alleged upon information and
belief, and as to those matters deponent believes it to be true.
The grounds of deponent's belief as to all matters not
stated upon deponent's knowledge are as follows:
STANLEY WEST
Sworn to before
me this 1.8 day
of Sept , 1992.
NOTARY Uidst7aith PUBLIC Squires
VIOLET SQUIRES
COMMISSIONER OF DEEDS
CITY OF NEW YORK - He 1662
CERTIFICATE FILED IN his COUNTY
COMMISSION EXPIRES 10th 192
01/8
PAGE
H AND FROM.P 80.91
INTON LIBRARY PHOTOCOPY
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
Jody Harris, being sworn says: I am not a party to the
action, am over 18 years of age and reside at 225 Broadway, Suite
3300, New York, New York 10007.
On October 2, 1992, I served a true copy of the Amended
Verified Complaint by mailing the same in a sealed envelope, with
postage prepaid thereon, in a post-office or official depository of
the U.S. Postal Service within the state of New York, addressed to
the last known address of the addressee(s) as indicated below:
D'Amato & Lynch
70 Pine Street
New York, New York 10270
JODY Sagga J. HARRIS
Sworn to before me this
<<day of october, 1992.
2 Notary Public
CHARLES G. FORE
York
Commission Expires May 31, 1993
in Courty
01/6
PAGE
H AND FROM 80.91 FEB-27-97
[These are the page proofs of a forthcoming article for publication in the 102010Hd Suffolk University LIBRARY Law NOINI
Review.]
FILE:A1SOTOMAYO Oct 10/21/96 Mon 11:59pm
AND Politics
Returning Majesty To The Law: A Modern Approach'
Hon. Sonia Sotomayor' and Nicole A. Gordon"
Even after participating in many different aspects of the practice of law,
it is still possible to retain an enthusiasm and love for the law and its
practice. It is also exciting to address future lawyers about the practice of
law. This is not casy to do, unfortunately, in the context of recurring pub-
lic criticism about the judicial process.'
The public expects the law to be static and predictable. The law, how-
ever, is uncertain and responds to changing circumstances. To the public,
justice means that an obviously correct conclusion will be reached in
every case. But what is "correct" is often difficult to discem when the law
is attempting to balance competing interests and principles, such as the
need to protect society from drugs as opposed to the need to enforce our
constitutional right to be free from illegal searches and seizures.¹ A con-
This Article is based upon a speech that Judge Sotomayor delivered in February 1996 as part
of the Donshue Lecture Series. The Doushoe Lecture Series is a program instituted by the Suffolk
University Law Review to commemorate the Honorable Frank J. Donaboe, former faculty member,
trustee, and treasurer of Suffolk University. The Lecture Series serves as a tribute to Judge Donshoc's
accomplishments in encouraging academic excellence at Suffolk University Law School. Each lecture
in the series is designed to address contemporary legal issues and expose the Suffolk University
community to outstanding authorities in various fields of law.
t Judge, United States District Court, Southern District of New York; A.B. 1976, Princeton
University: I.D. 1979. Yalc Law School Judge Sotomayor previously practiced as a commercial litiga-
tion partner at Pavis & Harcourt, a New York City law firm, and served as a member of the New
York City Campaign Finance Board, the New York State Montgage Agency. and the Puerto Rican
Legal Defense and Education Fund. Prior to entering private practice, Judge Sotomayor was an Assis-
tant District Attomey in New York County.
tt Executive Director, New York City Campaign Finance Board: A.B. 1974. Barnard College;
J.D. 1977. Columbia University School of Law. Ms. Gordon has previously served in other private and
government positions, including Counsel to the Chairman of the New York State Commission on
Government Integrity. She is also the current President of the Council on Governmental Ethics Laws
(COGEL). the umbrella organization for ethics, lobbying. campaign finance, and freedom of informa-
tion agencies in the United States and Canada. The views expressed in this article are not accessarily
those of the New York City Campaign Finance Board or COGEL
1. See. c.g., Katharine Q. Seciye, Dole, Citing "Crisis" in the Courts, Attacks Appointments by
Clinton, N.Y. TIMES, Apr. 20. 1996. X AI (describing Senator Dolc's criticism of liberal ideology of
Clinton judicial appointments and American Bar Association): John Stossel, Protect Us From Legal
Valtures, WALL ST. L Jan. 2 1996, at $ (asserting damage manufacturers have donc to society
"trivial" compared with harm lawyers do): Don Van Natta Jr., Group Urges More Scrutiny For Law-
yers. N.Y. TOMES. Nov. 10. 1995. of BI (discussing New York State committee's recommendations for
improving legal system and combatting public criticism).
2. See generally 5 WAYNE R LAFAVE. SEARCH AND SEIZURE A TREATISE ON THE FOURTH
AMENDMENT (3d ed. 1996) (explaining exclusionary rule protects constitutional right to be secure
against unreatonable searches and scirures).
LINTON LIBRARY PHOTOCOPY
PLE:A1SOTOMAYO Oct 10/21/96 Mon 11:39pm
2
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
fused public, finding itself at odds with the results of particular judicial
decisions, experiences increased cynicism about the law.3
Unfortunately, lawyers themselves sometimes feed that cynicism by
joining a chorus of critics of the system, instead of helping to reform it or
helping the public to understand the conflicting factual claims and legal
principles involved in particular cases.4 Similarly, instead of attempting to
control criminal or unethical conduct occurring in our profession, and
promoting the honorable work of most of us, many lawyers respond by
denigrating the professionals in certain practice areas, like personal injury
law. Further, many neglect to focus on the core issues that rightly trouble
the public, such as whether there is fraud and deceit in the prosecution of
claims, and if so, what we should do about it.
Today, we need to discuss how we can satisfy societal expectations
about "The Law" and help create a better atmosphere in which public
officials, and especially lawyers and judges, can inspire more confidence
and respect for the "majesty of the law" and for the people whose profes-
sional lives are devoted to it.
I. THE LAW As A DYNAMIC SYSTEM
The law that lawyers practice and judges declare is not a definitive,
capital "L" law that many would like to think exists. In his classic work,
Law and the Modern Mind, Jerome Frank aptly summarized the paradox
existing in society's attitude towards law and its practitioners:
The lay attitude towards lawyers is a compound of contradictions, a
mingling of respect and derision. Although lawyers occupy leading posi-
tions in government and industry, although the public looks to them for
guidance in meeting its most vital problems, yet concurrently it sneers at
them as tricksters and quibblers.
Respect for the bar is not difficult to explain. Justice, the protection of
life, the sanctity of property. the direction of social control-these funda-
mentals are the business of the law and of its ministers, the lawyers.
3. See Judge Baer's Mess. N.Y. TIMES. Apr. 3. 1996, at A14 (criticizing federal judge's reversal
of initial exclusion of drugs and confession as unconstitutional seizure); see also Bruce D. Collins,
Layman's View of Lawyers Ignores the Bar's Good Deeds. CORP. LEGAL TIMES, Mar. 1996, at 8 (ex-
pressing concern that public may judge entire profession based on mass tort and divorce attorneys).
According to one editorial, To)ne of the major troubles with most Lawyers is that they actually believe
their profession is making the United States a better place to live." Time For Real Legal Reform Is
Now, Before Lawyers Bring Nation Down, Series: The Trouble with Lawyers, Pr. LAUDERDALE SUN-
I
SENTINEL, Jan. 4. 1996. at 14A. Further, the newspaper opined that lawyers' "continued assertion that
the legal system works in the best interest of the nation demonstrates the immense human capacity for
self-delusion." Id.
4. See Max Boot, Stop Appeasing the Class Action Monster, WALL ST. J., May 8. 1996, at AIS
(detailing how corporate mass-tort defense lawyers criticize class actions yet offer few alternatives or
solutions).
LINTON LIBRARY PHOTOCOPY
FILE:A.ASOTOMAYO Oct 10/21/96 Mos 11:59pm
1995]
DARBY PRINTING COMPANY
3
But coupled with a deference towards their function there is cynical
disdain of the lawyers themselves.
The layman, despite the fact that
he constantly calls upon lawyers for advice on innumerous questions,
public and domestic, regards lawyers as equivocators, artists in double-
dealing, masters of chicane.
Frank, a noted judge of the Court of Appeals for the Second Circuit and
a founder of the school of "Legal Realism," postulated that the public's
distrust of lawyers arises because the law is "uncertain, indefinite, [and]
subject to incalculable changes," while the public instead needs and wants
certainty and clarity from the law. Because a lawyer's work entails chang-
ing factual patterns presented within a continually evolving legal structure,
it appears to the public that lawyers obfuscate and distort what should be
clear. Frank, however, pointed out that the very nature of our common law
is based upon the lack of certainty:
The constant development of unprecedented problems requires a legal
system capable of fluidity and pliancy. Our society would be strait-jack-
eted were not the courts, with the able assistance of the lawyers, con-
stantly overhauling the law and adapting it to the realities of ever-chang-
ing social, industrial and political conditions; although changes cannot be
made lightly. yet law must be more or less impermanent, experimental
and therefore not nicely calculable. Much of the uncertainty of law is not
an unfortunate accident: it is of immense social value.'
Frank believed that in the complex, fast-paced modern era, lawyers do
themselves a disservice by acceding to the public myth that law can be
certain and stable. He advocated that lawyers themselves accept the prem-
ise that law is not a fixed concept and that change in the law is inevitable
and to be welcomed: "Without abating our insistence that the lawyers do
the best they can, we can then manfully [sic] endure inevitable short-com-
ings, errors and inconsistencies in the administration of justice because we
can realize that perfection is not possible."
Frank's thesis, set forth in 1930, should continue to attract examination
today. It supports a pride that lawyers can take in what they do and how
they do it. The law can change its direction entirely, as when Brown V.
Board of Education' overturned Plessy V. Ferguson,10 or as the common
5. JEROME FRANK. LAW AND THE MODERN MIND 3 (Anchor Books 1963) (1930).
6. Id. at 5. In the preface to the sixth printing of LAW AND THE MODERN MIND, Frank took
issue with the notion that his theories and their advocates constituted a school. Id at viii-xii. Instead.
Frank preferred to be viewed as a "factual realist" or as he described himself, a "fact skeptic" as op-
posed to a "rule skeptic." Id at xii.
7. Id. at 6-7 (footnotes omitted).
8. Id. at 277.
9. 347 U.S. 483 (1954).
10. 163 U.S. 537 (1896).
CLINTON LIBRARY PHOTOCOPY
FILE:ASOTOMAYO Oa 10/21/96 Mos 11:39pm
4
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
law has gradually done by altering the standards of products liability law
directly contrary to the originally restricted view that instructed "caveat
emptor."" As these cases show, change-sometimes radical change-can
and does occur in a legal system that serves a society whose social policy
itself changes. It is our responsibility to explain to the public how an often
unpredictable system of justice is one that serves a productive, civilized,
but always evolving, society.
Lawyers must also continually explain various reasons for the law's
unpredictability. First, as Frank explains, laws are written generally and
then applied to different factual situations." The facts of any given case
may not be within the contemplation of the original law." Second, many
laws as written give rise to more than one interpretation (or, as happens
among the circuit courts, differing or even majority and minority
views). Third, a given judge (or judges) may develop a novel approach
to a specific set of facts or legal framework that pushes the law in a new
direction." Fourth, the function of the law at a trial is not simply to pro-
vide a framework to search for the truth, as understood by the public, but
it is to do so in a way that protects constitutional rights. Against these
and other constraints, including, as Frank observed, an unknown fac-
tor-i.e., which version of the facts a judge or jury will credit-competent
lawyers are often unable to predict reliably what the outcome of a particu-
lar case will be for their clients."
11. See W. PAGE KEETON ET AL. PROSSER AND KEETON ON THE LAW OF TORTS 11 95-96, at
677-83 (5th ed. 1984) (outlining movement from notion of caveat emptor to liability for losses caused
by defective products); RESTATEMENT (SECOND) OF TORTS $ 402A cmt. b (1965) (detailing common
law evolution of liability for defective products).
12. See PRANK, supra note 5. at xii (describing how courts apply legal rules to unique cases).
13. See id. at 127-28 (criticizing mechanistic approach to law that would treat people like mathe-
matical entities to achieve predictability).
14. See id. at 121 (discussing statistical evidence concerning difference between judges).
15. See Jeremy Paul, First Principles. 25 CONN. L REV. 923, 936 (1993) (discussing how cases
of first impression force judges to create law and affect law's unpredictability).
16. See United States V. Filani, 74 F3d 378. 383-84 (2d Cir. 1996) (discussing varied goals of the
trial in American jurisprudence). In Filani, the United States Court of Appeals for the Second Circuit
considered a drug conviction based on the judge's improper questioning of the defendant. Id. at 382-
83. In discussing the history and role of trial judges in England and the United States. the court stated:
One of the reasons for allowing an English judge greater latitude to interrogate witnesses is
that a British trial, so it is said, is a search for the truth. In our jurisprudence a search for
the truth is only one of the trial's goals; other important values-individual freedom being
a good example-are served by an attorney insisting on preserving the accused's right to
remain silent or by objecting to incriminating evidence scized in violation of an accused's
Fourth Amendment rights. The successful assertion of these rights does not aid-and may
actually impede-the search for truth
Id. at 384.
17. FRANK, supra note 5. at xiv-xv. Of course, there are many instances in which lawyers can
predict reliably what the outcome of a particular case will be. See Rodney J. Uphoff. The Criminal
Defense Lawyer as Effective Negotiator: A Systematic Approach. 2 CLINICAL L REV. 73. 83-86 (1995)
INTON LIBRARY PHOTOCOPY
RILE:ASOTOMAYO Od 10/21/96 Mom 11:39pm
1995]
DARBY PRINTING COMPANY
5
This necessary state of flux, as well as our reliance on the adversary
system, give rise to a cynicism expressed by Benjamin Franklin in the
mid-seventeen hundreds, but equally reflective of the public mood today:
I know you lawyers can with case
Twist words and meanings as you please;
That language, by your skill made pliant,
Will bend, to favor every client;
That 'tis the fee limits the sense
To make out either side's pretense,
When you peruse the clearest case,
You see it with a double face
Hence is the Bar with fees supplied;-
Hence eloquence takes either side.
And now we're well secured by law,
Till the next brother find a flaw."
This image raises perhaps the greatest fear about the role of law and
lawyers: that on the same facts, and presented with the same law, two
judges or juries would reach different results in the same case because of
a lawyer's presentation." Whether the concern is that only the wealthy
can afford the best lawyers, or simply that the more "eloquent" attorney
can get a better result, it is an intimidating possibility to a public that
seeks certainty and justice from the law. From the vantage of a judge,
however, it is not a correct or complete picture of what happens in the
courtroom. (In extreme cases, of course, a lawyer (or a judge or jury) can
be entirely incompetent or otherwise entirely fail to do a proper job.) To
the extent judges and juries reach different results, however, much more,
as Frank observed, may be attributable to the reality that judges and juries
react differently to facts because their life experiences are different.
Working from the same facts and within the confines of the same law,
however, it seems that gross disparities in result do not frequently oc-
cur." But the law does evolve, and to assist its evolution and at the same
(analyzing systemic pressures to plea bargain in criminal cases). Cases that reach the trial stage do not
reflect the multitude of cases resolved early-even before the complaint stage-preciscly because the
parties have quite a clear expectation of how their case would be decided. See id at 83 (noting some
defendants readily admit guilt and acknowledge responsibility for wrongs committed).
18. Benjamin Franklin, Poor Richard's Opinion, in LAW: A TREASURY OF ART AND LITERATURE
151. 151 (Sara Robbins cd., 1990).
19. Compare BMW V. Gore, 116 S. a. 1589. 1592-94 (1996) (considering constitutionality of $2
million punitive damages award for undisclosed automobile paint repairs). with Yates V. BMW. 642
So. 2d 937, 938 (Ala. Civ. App. 1993) (noting jury in virtually identical Alabama fraudulent car re-
painting lawsuit awarded no punitive damages). cert. quashed as improvidently granted by. 642 So. 2d
937 (Ala. 1993).
20. See FRANK, supra note 5. at xii-xiii (recognizing judge and juries bring personal prejudices to
trials).
21. This conclusion is based both on personal experience as a judge and on the statistically small
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time maintain their own credibility, lawyers must dispel the view that they
are dishonest, dissembling, hypocritical, or that Ben Franklin's description
is correctly derisive."
Frank's point that the public fails to appreciate the importance of indef-
initeness in the law must be addressed through better education of the
public by lawyers and others, including government officials." In addi-
tion, the public has other needs relating to the law: the need, for example,
for lawyers to act honorably, beyond what any law, regulation, or pro-
fessional rule may require. This need requires a different response.
II. MORALITY IN PUBLIC SERVICE
What are our expectations of lawyers, judges, and of public servants
generally? Over the years, the response to scandal and disappointment in
lawyers and in our public officials has varied. A history of ethical codes
that have apparently not provided sufficient guidance to practitioners has
recently led to tighter restrictions. In the public sphere, we have for some
time been engaged in passing laws and regulations intended to curb un-
worthy behavior.2 This may not always be adequate for public officials
or for lawyers. Some would argue that reliance on regulations alone de-
fuses the notion of personal responsibility and accountability.
Charles Dickens on a visit to the United States in the nineteenth century
described his sorrow when confronted with the American approach to
regulating gifts to public servants:
The Post Office is a very compact and very beautiful building. In one of
the departments, among a collection of rare and curious articles, are
deposited the presents which have been made from time to time to the
number of jury verdicts act aside or new trials ordered by judges. Of course, case law principles re-
quire that appellate courts give jury verdicts a great deal of deference. See Honda Motor Co. V. Oberg.
114 S. a 2331. 2336-38 (1994) (stating civil jury verdicts historically afforded deference on judicial
review unless damages too large); United States V. Powell, 469 U.S. 57. 67 (1984) (commenting that
deference to jury's collective judgment brings element of finality to criminal process); Binder V. Long
Island Lighting Co., 57 F.3d 193, 201-02 (2d Cir. 1995) (finding appellate court grants "strong pre-
sumption of correctness" when reviewing whether jury verdict "seriously erroncous"): Piesco V. Koch,
12 F.3d 332, 345 (2d Cir. 1993) (requiring "seriously erroncous" verdict for grant of new trial):
Dunlap-McCuller V. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992) (requiring "egregious" jury verdict
for new trial): Smith V. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988) (noting no DCW
trial unless verdict "seriously crroncous" or miscarriage of justice).
22. See Franklin, supra note 18, at 151 (expressing cynicism toward attorney's role in courtroom).
23. See Roberta Cooper Ramo. Law Day More Important than Ever for Keeping Strong, CHI.
DAILY L BULL. Apr. 27. 1996, at 8 (emphasizing importance of legal profession keeping citizenry
well informed about Constitution and legal system).
24. See infra note 26 and accompanying text (discussing laws designed to prevent and punish
public corruption): note 27 and accompanying text (describing laws and regulations applicable to pub-
lic affairs): note 55 and accompanying text (outlining rule of professional responsibility prohibiting
lawyer-client sexual relations).
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American ambassadors at foreign courts by the various potentates to
whom they were the accredited agents of the Republic; gifts which by
the law they are not permitted to retain. I confess that I looked upon this
as a very painful exhibition, and one by no means flattering to the na-
tional standard of honesty and honour. That can scarcely be a high state
of moral feeling which imagines a gentleman of repute and station likely
to be corrupted, in the discharge of his duty, by the present of a snuff-
box, or a richly-mounted sword, or an Eastern shawl; and surely the
Nation who reposes confidence in her appointed servants, is likely to be
better served, than she who makes them the subject of such very mean
and paltry suspicions."
There is indeed a national plethora of legislation at every level of gov-
emment restricting activities of government officials. This legislation,
among other things, controls the receipt of gifts; limits the amounts of
fees, and honoraria and outside employment; restricts post-employment
contact with government; curbs the extent of political activities; requires
the acceptance of the lowest (but not necessarily best) bids on government
contracts; and sets prohibitions on the manner and ways in which to ad-
dress financial and other conflicts. These rules are extremely important,
even vital, notwithstanding Dickens' eloquent statement to the contrary.
They protect the public from many kinds of inappropriate influences on
government officials, and they perform another crucial service in provid-
ing guidance to and protecting those they regulate. Public servants have
sometimes walked a fine line or walked over the line between gifts and
bribes." If specific rules have their place, however, that does not mean
that we should limit the standard we apply to public officials to the tech-
nical question of whether those rules have been broken, rather than aspir-
ing to the highest in moral behavior. As a "Nation," we have not suffi-
25. CHARLES DICKENS. AMERICAN NOTES AND PICTURES FROM ITALY 123 (Oxford Univ. Press
1957) (1842). It is interesting that in England there is now a heightened sense that laws or rules are in
fact needed to regulate the behavior of public officials. See COMMITTEE ON STANDARDS IN PUBLIC
LIFE, FIRST REPORT, 1995, Crand 2850-L at 3 (urging remedial legislative action to counter public
discontent with ethical standards of public officials).
26. See. C.8., 18 U.S.C. 1 201 (1994) (forbidding public official from seeking or receiving bribe to
influence performance of official act); 18 U.S.C. 4 666 (1994) (prohibiting agent of state, local or
Indian tribal government from soliciting or receiving bribe): MASS. GEN. LAWS ch. 268A. " 1-25
(1994) (setting forth antibribery and conflict of interest laws for state, county and municipal employ-
ces).
27. See generally COUNCIL ON GOVERNMENTAL Enecs LAWS. THE COUNCIL OF STATE Gov'Ts.
COGEL BLUE BOOK (Joyce Ballock ed., 9th ed. 1993) (compiling information on laws governing
campaign finance, ethics, lobbying and judicial conduct nationwide).
28. See Jane Fritsch, The Envelope. Please: A Bribe's Not a Bribe When It's a Donation, N.Y.
TIMES, Jan. 28, 1996. at DI (revealing subtle distinction between illegal bribes and legal campaign
contributions to politicians): Stephen Kurkjian, Ferber's Conviction Spurs Widening of Probe. BOSTON
GLOBE, Aug. 15. 1996, at B5 (reporting planned investigation of Massachusetts politicians after cor-
ruption conviction of former financial advisor to state agencies).
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ciently emphasized the importance of professional morality in public ser-
vice, whether among our government officials or our lawyers. Instead, we
overemphasize social morality, concentrating on personal scandals that we
cannot regulate, then pass detailed rules, hoping to elevate professional
behavior in that way. If we limit our expectations to what is specifically
regulated (and sometimes over-regulated), we may in effect degrade the
offices and the people who hold them.
In other countries, public morality is approached differently. In Europe,
for example, public officials often have greater discretion, are better paid,
and are held to higher standards of behavior, in some instances resigning
their office if there is the hint of financial scandal in their work.29
The tolerance in this country for questionable behavior by public offi-
cials is illustrated by the persistence of extremely troubling-but le-
gal-practices in the public arena. In one of the murkiest and least well-
controlled areas, we find ourselves debating what the quid pro quo's are
for campaign contributions. Here we have abandoned standards we would
surely apply in any other context. We would never condone private gifts
to judges about to decide a case implicating the gift-givers' interests.
Yet our system of election financing permits extensive private, including
corporate, financing of candidates' campaigns, raising again and again the
question what the difference is between contributions and bribes and how
legislators or other officials can operate objectively on behalf of the elec-
torate." Can elected officials say with credibility that they are carrying
out the mandate of a "democratic" society, representing only the general
public good, when private money plays such a large role in their cam-
paigns? If they cannot, the public must demand a change in the role of
private money or find other ways, such as through strict, well-enforced
regulation, to ensure that politicians are not inappropriately influenced in
their legislative or executive decision-making by the interests that give
them contributions." As Congress revamps many questionable practices,
including the receipt of gifts from lobbyists, it must monitor to the
public's satisfaction both whether inappropriate activity is being left un-
29. See generally Mark Davies, The Public Administrative Law Context of Ethics Requirements
for West German and American Public Officials: A Comparative Analysis. 18 GA. J. INT'L & COMP.
L. 319 (1988) (detailing differences between ethics regulations for American and German public offi-
cials).
30. Cf. Scott D. Wiener, Note, Popular Justice: State Judicial Elections and Procedural Due
Process. 31 HARV. C.R.-C.L. L. REV. 187. 194 (1996) (discussing Texas attorney Joc Jemail's $10,000
campaign contribution to judge in Texaco-Pennzoil case).
:
31. See Fritsch, supra note 28. at DI (reporting influence of special interest money as serious
political issue).
32. See Jamin Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of
Democratically Financed Elections. 94 COLUM. L. REV. 1160. 1160 (1994) (proposing replacement of
federal election finance system with total public financing of congressional campaigns).
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regulated and whether laws and regulations that are put in place are ac-
tually enforced. The continued failure to do this has greatly damaged
public trust in officials and exacerbated the public's sense that no higher
morality is in place by which public officials measure their conduct.
Similarly, the public wonders whether lawyers have enforceable rules of
self-government or any kind of defined morality. Professional codes tend
to speak in terms of ethical presumptions, without prescribing what law-
yers should do in specific, troubling situations. For example, almost all
professional codes require that a lawyer should represent a client zealously
within the bounds of the law and may not subom perjury or the creation
of false documents." But no rule guides a lawyer who is merely left with
a firm and abiding conviction that what is being said or proffered by a
witness or client is false. Rules might be ill-suited to answer such dilem-
mas, but moral imperatives, or what Lord Moulton described in 1924 as
"Obedience to the Unenforceable," may be more helpful.
Lord Moulton, to be sure a man of his time, spoke of Obedience to the
Unenforceable as a standard that people live up to despite the fact that no
law can force them to do so." He gave as an example the conduct of the
men aboard the Titanic who, facing imminent death, nevertheless adhered
to the principle that women and children should be saved first:
Law did not require it. Force could not have compelled it in the face of
almost certain death. It was merely a piece of good Manners.
The
feeling of obedience to the Unenforceable was so strong that at that ter-
rible moment all behaved as, if they could look back, they would wish to
have behaved."
Our public officials and lawyers should also be prepared to adopt a
culture that depends upon subjective accountability as well as well-de-
fined, consistent rules and regulations:
The difference between the true lawyer and those men who consider the
law merely a trade is that the latter seek to find ways to permit their
clients to violate the moral standards of society without overstepping the
letter of the law, while the former look for principles which will per-
suade their clients to keep within the limits of the spirit of the law in
common moral standards."
33. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3 (1995) (noting candor toward tribu-
nal prevents lawyer from offering false evidence): MODEL CODE OF PROFESSIONAL RESPONSIBILITY
EC 7-1, 7-6 (1983) (declaring Lawyer's duties to client and legal system).
34. Lord Moulton, Law and Manners, ATLANTIC MONTHLY. July 1924. at I. 1. Lord Moulton, a
judge and member of the British Parliament, served as Minister of Munitions for Great Britain at the
outbreak of World War I. Id.
35. Id.
36. Id. at 4.
37. PIERO CALAMANDREI, EULOGY OF JUDGES 45 (John Clarke Adams & C. Abbott Phillips. Jr.
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III. THE BAR'S RESPONSIBILITY
What is the responsibility of a practicing lawyer, and how could
lawyers' behavior be changed in ways to encourage greater respect for the
legal profession? To take one example of a tolerated but unacceptable
pattern, let us examine the lying and misrepresentation that occurs in
court.
Lawyers are not routinely confronted with the clear-cut dilemma that a
client proposes to "lie" on the stand. A client presents a version of the
facts, and lawyers rarely have independent, first-hand knowledge of them.
(In criminal cases, clients frequently choose not to take the stand, often on
the advice of an attorney, advice that is given for any number of reasons,
including the risk of presenting perjured testimony.) Some number of
these witnesses lie, including some for the prosecution and some for the
defense, and their lawyers suspect as much. What more commonly occurs
is that witnesses, often unconsciously, allow selectivity, prejudice, and
emotion to color their perceptions. Even when two witnesses directly
contradict one another, both may be "telling the truth" from their own
point of view or to the best of their recollection. Real life is complex, and
we have chosen to use the adversarial system to sort out the truth as best
it can."
To maintain credibility in the system, however, we must study how
well we do in fact get at the "truth." Lying is risky in the courtroom, but
not generally because of the threat of a perjury indictment. It is risky
because each side has the opportunity, through discovery, independent
investigation, and cross-examination, to expose falsehood." But the ad-
versarial system may not always be wholly adequate to the task of expos-
ing wrong-doing and false or inflated claims. Empirical studies have been
performed, for example, that examine the reliability of witnesses and ju-
rors. Many factors influence witnesses and juries, including subcon-
scious racism and other prejudices. As a profession, we should seek, based
trans., 1942).
38. See SISSELA Bok, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 158-59 (1978) (ana-
lyzing how adversary system sometimes encourages attorneys to argue credibility of knowingly perju-
rious clients).
39. See PED. R. Ctv. P. 26-37 (setting forth rules governing depositions and discovery in federal
civil cases): PED. R. CRIM. P. 16 (establishing rules of evidentiary disclosure by both government and
defendant in criminal cases): PED. R. EVID. 607 (allowing impeachment of witness' credibility).
40. See generally JEFFREY T. FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY (1987) (pre-
senting social scientific research on jury behavior and persuasion): SAUL M. KASSIN & LAWRENCE S.
WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES (1988) (analyzing jury
reliability and phases of jury trial); Christopher M. Walters, Note, Admission of Expert Testimony on
Eyewitness Identification, 73 CAL. L. REV. 1402 (1985) (discussing expert witness reliability in eye-
witness identification cases).
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upon empirical evidence, ways in which to improve our ability to arrive at
the truth. If we undertake this seriously, we will not only do well by the
cause of justice, but we will justifiably improve the public's opinion of
our profession.
The adversary system may also be ill-suited to resolve certain types of
disputes such as those presented by "battles of the experts" in medical
malpractice and many other kinds of cases. There is recurring debate about
the ability of jurors to evaluate such evidence. The Supreme Court of the
United States, in Daubert V. Merrell Dow Pharmaceuticals, Inc.," has
reacted to this debate by expanding the judge's function to require that
scientific testimony be evaluated more stringently before it can be present-
ed to the jury. Certainly, the battle of the experts undermines public
confidence not only in the certainty of the law, but in another desired bed-
rock, the certainty of science. We must revisit whether other methods of
inquiry into specialized areas-such as the use of court-appointed experts
or Special Masters who share their conclusions with juries-may be more
useful to resolve these kinds of disputes. The current system, in this par-
ticular respect, should somehow be made to work better or should be
critically evaluated, and if necessary, replaced.
Finally, the adversary system, almost by definition, cannot address the
gray area of the "truth" present in most cases because the system tends to
produce all-or-nothing winners and losers. This is why settlements and
new forms of "alternative dispute resolution" are so important. Dickens'
remark that honorable lawyers admonish their clients to "[s]uffer any
wrong that can be done you, rather than come here [to the courts]," is still
timely for many litigants. The adversary system has its limitations under
the best of circumstances, and so we must explain why the benefits of the
system outweigh those limitations. If, as has been said of democracy, the
adversary system is "the worst form of Government except [for] all those
other forms," then that is the way in which the public should understand
it: not as a system expected to accomplish more than any system can.
As we ponder how effective our legal system is, we must help create
41. 509 U.S. 579 (1993).
42. See id. at 597 (acknowledging Federal Rules of Evidence require judge to ensure scientifically
valid principles support expert testimony).
43. See Abraham Lincoln, Notes for a Law Lecture, in THE OXFORD DICTIONARY OF AMERICAN
LEGAL QUOTATIONS 302 (Fred R. Shapiro ed., 1993) ("As a peacemaker the lawyer has a superior
opportunity of being a good man. There will still be business enough."); Joshua A. Darrell, For Many.
Litigation Retains Important Practical Benefits. NAT'L L. J., Apr. 11. 1994. at CII (discussing benefits
of alternative dispute resolution).
44. CHARLES DICKENS. BLEAK HOUSE 51 (Norman Page ed., Penguin Books 1971) (1853) (quota.
tion marks omitted).
45. Winston Churchill. Speech (Nov. 11. 1947). in THE OXFORD DICTIONARY OF QUOTATIONS
202 (Angela Partington ed., 4th ed. 1992).
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greater credibility in existing, useful mechanisms. A number of years ago,
Judge Harold Rothwax of the Supreme Court of the State of New York
noted his concern that illegal activities occur in the judicial system some-
times for years and that lawyers do not report them.46 In a heartening
exception to this generalization, insurance kick-backs were recently ex-
posed by a lawyer who was offered one in New York." Similarly, we re-
cently have heard much about the police practice of tailoring testimony to
avoid the suppression of evidence, an apparently common practice that
must be known to, or at least suspected by, some prosecuting attorneys.44
Often, however, lawyers, instead of engaging in genuinely useful projects
to ferret out fraud, tend to denigrate either the law itself or the role and
quality of work performed by lawyers in the fields, for example, of per-
sonal injury or criminal defense.
The response that can give the public confidence in our profession is
our own leadership in weeding out the fraudulent and wrongful conduct
that the public rightly condemns at the same time as we challenge
overreactions that undermine the principles of our judicial system." Law-
yers have unfortunately joined the public outcry over excessive verdicts
and seemingly ridiculous results reached in some cases.50 Legislators have
introduced bills that place arbitrary limits on jury verdicts in personal
injury cases." But to do this is inconsistent with the premise of the jury
system. The focus must be shifted back to monitoring frivolous claims,
uncovering pervasive misrepresentation in court, and educating the public
that no system of justice is perfect. Despite occasional disappointing re-
46. See Symposium: Ethics in Government, CITY ALMANAC, Winter 1987. at 20. 20 (noting cor-
ruption in legal system succeeds when & few good people do nothing).
47. See Matthew Goldstein, 23 Lawyers Arrested in Insurance Scheme: Inflating of Settlements in
Tort Cases Charged, N.Y. LJ., Sept. 22, 1995. at 1 (reporting praise of whistleblowing attorney who
stated be "did what any honest citizen would do"): George James, 47 Accused in an Insurance Claim
Scheme, N.Y. TIMES, Sept. 22. 1995, at B3 (describing district attorney's praising Lawyer as "credit to
the legal profession and the general public").
48. See HAROLD J. ROTHWAX, GUILTY: THE COLLAPSE OF CRIMINAL JUSTICE 63-65 (1996) (dis-
cussing problems exclusionary rule creates for law enforcement officers): see also And What About
Justice?. WALL Sr. J., Sept. 1. 1995, at A6 (discussing perjury by law enforcement officers in OJ.
Simpson trial and on Philadelphia police force).
49. Cf. supra note 47 and accompanying text (describing efforts of New York attorney exposing
fraudulent practices by plaintiff's personal injury attorneys).
50. See Was Justice Served?. WALL ST. J., Oct. 4. 1995, at A14 (publishing attorney's criticism
of criminal trials as "indistinguishable from Roman circuses" and civil justice system as "equally de.
mented").
51. See Common Sense Product Liability Legal Reform Act of 1996, H.R. 481. 104th Cong.
(limiting punitive damages in certain cases): Richard B. Schmitt, As Clinton Vows to Veto Products-
Liability Bill, Some Ask if He's Too Beholden to Trial Lawyers, WALL ST. 1., Mar. 22, 1996, at A14
(discussing political opposition to tort reform legislation limiting manufacturers' liability in suits over
defective products): Glenn R. Simpson, Trial Lawyers. After Flirting With GOP in 1995, Are Sitting at
Democratic Party's Table Again. WALL ST. J., July 16. 1996. at A12 (reporting presidential veto of
congressional legislation limiting product liability damages).
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sults, our system does have mechanisms in place that moderate jury ver-
dicts (such as judges' discretion to set aside or reduce unreasonable ver-
dicts), that allow for the discipline of lawyers, and that can result in pun-
ishment of perjurers.⁵
Criminal law is the most challenging arena in which to satisfy the pub-
lic that our system adequately addresses problems of apparently wrong
verdicts. This is largely because the public either does not understand or
does not accept the necessity for safeguards against overzealous prosecu-
tion and the protection of certain civil liberties. The role of criminal de-
fense lawyers in particular is not well understood or sufficiently appreciat-
ed by many lawyers, much less the public. Prosecutors and government
officials should be especially sensitive to and publicly supportive of the
fundamental place constitutional safeguards and the defense bar have in
our system. We must take an aggressive role in cleaning our own house
by educating ourselves and publicly supporting our colleagues who per-
form essential functions in asserting and protecting the constitutional rights.
of defendants
If we can persuade the public that the system we have in place and the
roles played by lawyers within that system are the best available, there
remain ancillary issues of an ethical nature that do not necessarily involve
what happens in the courtroom. We have an obligation, for example, to
address professional conduct perceived by the public to be wrong even if
it is not necessarily illegal. For example, in New York State, a recent
study of the matrimonial bar concluded that a very significant negative
sense exists of matrimonial practice, based on the perception that matri-
monial lawyers often take unfair financial advantage of emotionally fragile
clients. Similarly, California found that sexual exploitation of clients
52. See Gasperini V. Center for Humanities, Inc., 116 S. a 2211. 2214 (1996) (applying New
York check on excessive damages to federal court): Bender V. City of New York, 78 F.3d 787, 794-95
(2d Cir. 1996) (finding verdict of $300,700 excessive in civil rights action): Scala V. Moore
McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993) (finding $15 million verdict for pain and
suffering excessive): see also 18 U.S.C. " 401-02 (granting courts power to punish contempt of
courts' authority, including obstruction of justice); FED. R. av. P. 11(c) (providing for sanctions of
lawyers who pursue frivolous claims and needless litigation): FED. R. Ctv. P. 59 (empowering judges
to grant new trials and amend judgments in nonjury trials).
53. See Miranda V. Arizona, 384 U.S. 436, 480 (1966) (noting attorney carries out sworn duty by
advising client to remain silent during police questioning). The Miranda Court emphasized that an
attorney's advice of silence in the face of criminal investigation is an exercise of "good professional
judgment," not a reason "for considering the attorney a menace to Law enforcement." Id: see also
United States V. Filani, 74 F.3d 378. 384 (2d Cir. 1996) (noting that "fulfilling professional responsi-
bilities 'of necessity may become an obstacle to truthfinding.") (quoting Miranda, 384 U.S. at 514
(Harlan, 1., dissenting)).
54. See COMMITTEE TO EXAMINE LAWYER CONDUCT IN MATRIMONIAL ACTIONS. ADMINISTRA-
TIVE BD. OF THE COURTS OF N.Y., REPORT 1-5 (1993) (identifying criticism of divorce law system
and proposing reforms and improvements for lawyers and courts): see also Carpe Diem. N.Y. LJ.,
Mar. 12. 1993. at 2 (citing report critical of divorce lawyers by New York City Department of Con-
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was a pervasive enough problem in divorce and other areas of legal prac-
tice that the California Supreme Court passed a very hotly debated profes-
sional rule setting forth a lawyer's professional obligations in these situa-
tions."
Whether the rule will have an effect in California on the public's per-
ception of lawyers depends largely on how vigilantly their colleagues and
others hold lawyers to the rule: Will lawyers actually be reported to the
bar association when they are suspected of having inappropriate sexual
relations with a client? How aggressively will they be investigated? And
will they be held accountable if they continue to represent a client with
whom they are having an impermissible sexual relationship?
Failure to enforce such a rule will again feed the public's mistrust,
which arises in part from the sense that lawyers (and public officials),
whose conduct is generally self-policed, protect themselves from proper
regulation. In New York, for example, disciplinary proceedings have until
recently been closed to protect lawyers from unjust criticism and harm to
their reputations. Despite a recommendation by its Task Force on the
Profession that these proceedings be made public, the House of Delegates
of the New York State Bar Association is opposing the measure." Unques-
tionably, unjust criticism of a professional can be devastating. But it is
worth examining whether that concern is better addressed by creating a
quick, fair process for determining whether a charge is unfounded than by
continuing a practice of not airing complaints publicly." Alternatively, we
must find other ways to assure the public that closed proceedings are
effective in disciplining lawyers, and we must do more to monitor them.
One way or another, there must be convincing public justification for the
manner in which discipline and performance is regulated.
In the political sphere, the sense that elected officials fail to police
themselves is equally prevalent. Partisanship is the accepted "adversarial".
mechanism that is supposed to maintain checks and balances and protect
the public in various contexts, including in the fields of elections and
campaign finance. Bipartisan commissions, such as boards of elections
sumer Affairs commissioner).
55. CALIFORNIA RULES OF PROFESSIONAL CONDUCT Rule 3-120 (1995).
56. See Gary Spencer, State Bar Opposes Any Public Discipline Procedures, N.Y. LJ., June 27,
1995, at 1 (reporting bar association refused to endorse "even the smallest step toward opening" disci-
plinary process to public). The Association of the Bar of the City of New York has endorsed opening
up these proceedings. See Committee on Professional Discipline, The Confidentiality of Disciplinary
Proceedings, 47 REC. ASS'N B. CITY N.Y. 48. 60 (1992) (advocating opening process to public after
determination that proceedings should begin).
57. Arguably. lawyers do not exhibit the same heightened sensitivity to the plight their clients
suffer when unfair or embarrassing information becomes public through legal proceedings.
58. The Federal Election Commission is, for example, bipartisan by law. See 2 U.S.C. I
437c(a)(1) (1994) (providing that only three of six members appointed to Commission "may be affili-
LINTON LIBRARY PHOTOCOPY
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1995)
DARBY PRINTING COMPANY
15
or most campaign finance agencies, often reflect a close relationship be-
tween commissioners and party politics." The result is often votes on
individual matters along party lines rather than on the merits, and policies
and procedures that favor the established parties over independent or alter-
native groups. By contrast, the experience of New York City's Cam-
paign Finance Board-a pioneer agency regulating New York City's pro-
gram of optional public financing of political campaigns-has been that of
a deliberative, non-partisan board that nearly always acts unanimously and
certainly always without regard to party affiliation. The non-partisan cul-
ture of that board is a model for decision-making in the political sphere.
But few legislators-including the federal Congress-are prepared to have
their campaign finances monitored by a genuinely non-partisan, objective
body. As a result, there are areas of activity-including campaign fi-
nance-regulation of which is vital to the health of our democracy. Yet
bipartisan agencies with weak claim to the public's trust largely administer
that regulation. The legislators' failure to submit themselves to meaningful
scrutiny heightens cynicism about our elected officials, many of whom, as
we all know, are lawyers.
In short, we must find ways to re-evaluate and, if necessary; alter our
methods of concluding legal and political conflicts. Next, we must find
effective, confidence-building mechanisms for policing ourselves. Further,
we must be prepared to entrust judgments on our own professional fitness
not only to our colleagues, but to the public.
IV. THE RESPONSIBILITY OF OTHERS
The changing nature of the law and the conduct of lawyers give the
public understandable pause. We must not, however, fall prey to the
public's cynicism. We must instead expect more of our profession. There
is a limit to how far an individual lawyer can elevate the bar as a whole.
What a lawyer can do, as argued above, is educate the public-at the very
least in the person of his or her clients-and personally raise standards by
living up to a code of conduct beyond what is "enforceable." This re-
sponsibility is not confined to attorneys in private practice. The others
who operate in or around the legal framework-judges, prosecutors, juries,
witnesses, public officials, and the press-must also educate themselves,
and others, and apply higher standards of conduct to their own behavior.
ated with the same political party").
59. See Jan Hoffman, Pataki Names Close Adviser to Judicial Screening Panel. N.Y. TIMES, Sept.
14. 1996. at 25 (reporting bar associations' criticism of governor's appointing closest legal adviser to
commission on judicial nominations).
60. See id. (reporting criticism that appointee would serve as stand-in for governor on commission
recommending candidates to state's highest court).
LINTON LIBRARY PHOTOCOPY
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16
SUFFOLK UNIVERSITY LAW REVIEW
[Vol. XXIX:1
Much distrust arises from a lack of understanding, whether about the
purpose and role of the adversary system, the presumption of innocence,
the right of every party to be represented by an attorney, or the facts and
proceedings of a specific case-even a case as highly publicized as the
O.J. Simpson trial. The limitations of the law are also poorly understood.
We need the help of the schools, our media, and our public officials to
communicate the values and limitations of our system of justice and to
combinsing
free us from simplistic analysis that breeds contempt.
What we should also acknowledge, to broaden the true reach of the
law's majesty, is the role that many influences, including the press and the
lay public, play in contributing to our intricate legal system.
What we propose is as follows:
spine
First, lawyers must make a greater effort at educating themselves,
their clients, and the public about the key underpinnings of our legal
system: the reasons for the law's uncertainty; the values and limitations
of the adversary system; and the importance of respecting every kind of
legal practice and the role it plays in helping our society to achieve its
goals and progress.
Second: we must re-examine what does and does not work to bring
about justice and consider whether we can improve aspects of our sys-
tem. Is the adversary process the best way of determining whether wit-
nesses are telling the truth or for dealing with the "battle of the experts"?
If not, let us improve what we have, or find a better way, recognizing
that we cannot achieve perfection.
Third, we must instill among ourselves and our public officials a
culture of a high morality, as best we can. We must determine what
ethical guidelines are appropriate and then enforce them seriously. We
must adopt concrete ways to recognize those among us who practice law
at the highest moral levels. We must combine to act more honorably both
within our own sphere and collectively as a profession, supporting each
other in the inevitable controversies that arise when lawyers properly
carry out responsibilities that are ill-understood by the public.
Finally, we must enlist not only every group of our profession, includ-
ing judges, lawyers, legislators, and other public officials, to adhere to
higher standards. We must also enlist clients, jurors, journalists, and all
our fellow citizens, because we are all touched by the law, and we can
all have an influence on how it evolves."
61. Judges generally receive criticism if they ask. or let juries ask. too many questions to witness-
es. See United States V. Filani, 74 F.3d 378, 384 (2d Cir. 1996) (commenting on popular notion that
limited questioning by trial judge guards against bias): United States V. Ajmal, 67 F.3d 12, 14-15 (2d
Cir. 1995) (discussing dangers of prejudice and compromise of juror neutrality in juror questioning of
witnesses); see also Bill Alden, Juror Inquiries Require Retrial for Defendant, N.Y. LJ., Sept. 22,
1995. at 1 (reporting how improper juror questioning in Ajmal case led to reversal and new trial). In
today's media-dominated world, jurors are more informed about legal issues than ever before. More
explanation by judges why certain legal principles are important or why certain evidentiary rulings
LINTON LIBRARY PHOTOCOPY
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1995]
DARBY PRINTING COMPANY
17
We cannot delay in addressing these moral issues of professional con-
duct. We are faced with on-going instances of erosion in public confi-
dence. The O.J. Simpson trial and the constantly recurring investigations
of public officials continue to subject our profession and government
officials to public scom and ridicule. The response, if we do not act, will
be an increasing amount of legislation criminalizing and otherwise regulat-
ing conduct and a demoralization in the practice of law and public service.
We are losing many fine elected officials to retirement who no longer care
to operate in a bitterly partisan and hostile atmosphere governed by few
meaningful rules of conduct and subject to heightened and unrelenting
personal scrutiny by the press. Among our own ranks, senior practitioners
complain bitterly of the loss even of professional courtesy among lawyers
and office holders.
In Boston, lawyers call their adversaries "brother" or "sister" in court.
Anyone who experiences the practice appreciates the grace it adds to the
proceedings. This grace is created by the aura of respect the titles seek to
convey. In light of the increasing call by lawyers to return to greater pro-
fessional civility, it is clear we ourselves feel and regret the loss of profes-
sional courtesy and respect. We must first give respect to each other and
to the profession-in word and in deed-before we can expect the public
to do so.
If we act in these areas, the public discourse, the behavior of our law-
yers and public officials as well as their reputations, and, ultimately, confi-
dence in our legal system as a whole will be greatly enhanced.
have been made may be helpful to contain speculation that can lead juries astray. Similarly, if jurors
ask questions that seek to clarify evidence, and if the practice is properly controlled, this may preserve
rather than interfere with a jury's impartiality.
62. See Louis P. DiLorenzo, Civility and Professionalism, N.Y. ST. B.J., Jan. 1996, at 8. 8-10, 25
(exploring scope of decline in professionalism among attorneys. uncovering its cause and suggesting
possible solutions): see generally New YORK STATE BAR ASS'N. CIVILITY IN LITIGATION: A VOLUN-
TARY COMMITMENT (1995) (explaining suggested guidelines for behavior of all participants in litiga-
tion process).
SOTOMAYOR RESPONSE TO
PERSONAL DATA QUESTIONNAIRE
QUESTION 26
non
The Yale
nn
n
Law Journal
Volume 88
Number 4
March 1979
Statehood and the Equal Footing Doctrine:
The Case for Puerto Rican Seabed Rights
by
Sonia Sotomayor de Noonan
88 YALE L.J. 825
1
Reprint
Copyright (c) 1979 by
The Vale Law Jonnal to. Inc.
CLINTON LIBRARY PHOTOCOPY
Notes
Statehood and the Equal Footing Doctrine:
The Case for Puerto Rican Seabed Rights
In the near future, negotiations between Puerto Rico and the
United States will probably explore statehood as an alternative to the
island's current "commonwealth" status.' The island's dearth of land-
I. Commonwealth status means the Island enjoys self-government in local affairs under
its own constitution and association with the United States under the Puerto Rican
Federal Relations Act of 1950. as I. 4. 48 U.S.C. AS 731(b). 731(c) (1970). For a discussion
of the continuing debate concerning the nature of commonwealth status, see Cabranes,
Puerto Rico: Out of the Colonial Closet. FOREIGN POL'Y. Winter 1978, at 66.
The island's ongoing economic difficulties have exacerbated dissatisfaction with the
commonwealth arrangement and the island's political parties are voicing demands for a
status change. See, e.e., Carcia Passiacque, 20 Years of Anticolonialism, San Juan Star,
Apr. 23, 1977. at 27. col. 2 (attacks on commonwealth status have brought "[c)olonialism
in Puerto Rico" to "Its deathbed"): Puerto Ricon Factions Hit Island Status, Wash. Post,
AUR. 19. 1977, at A1, col. 6 ("For the first time, virtually the whole spectrum of political
opinion in Puerto Rico appeared before a U.N. committee and criticized the Island's
commonwealth statis.")
Statchood is currently the foremost alternative to the "fast collaps[ing]" common-
wealth. Carcia Passalacqua, Hispanic State or La Republice-IP. San Juan Star, Mar. 3,
1977, at 27, col. 2. The Island's statehood parties since 1952 have received Increasingly
larger percentages of the vote, culminating in the 18.3% that they received in 1970. See
Letter from Michael L Vere, Director, Legal Counsel Section of the Office of the Com-
monwealth of Puerto Rico to José A. Cabranes, Lecturer In Law, Tale Law School (Mar.
28, 1978) (on like with Yale Law Journal). Although this percentage partly reflected
protests against the Island's economic state under the commonwealth party, the trend
toward statehood is clear. Puerio Rico: the oil issue. 11 LATIN AMERICA POLITICAL REP.,
Feb. 4. 1977. at 38.
President Ford's New Year's Eve statchood proposal PURRENTS some United States sup-
port for the statchood alternative. See President Proposes Puerio Rican State: Urges U.S.
Initiative, N.Y. Times, Jan. 1, 1977. at 1. col. a President-elect Carter Indicated his will.
ingness to support statchond 11 the people who live there prefer that'' Certer Weighing
Personnel to Fill Sub-Cabinet jobs. N.Y. Times, Jan. 2. 1977, at I, col. 5 & 44, col. 5. A
Gallup poll conducted in December 1976 found three out of every five Americans In
favor of statehood for Puerto Rico. 19% on Mainland Fevor State in Gellup Inc. Poll,
PHOTOCOPY
San Juan Star, Jan. 5, 1977. at 1, col. 1.
A bid for statehood by Puerto Rico has Increasingly been viewed as inevitable. See, e.g.,
Puerio Miro Turnebout, Wash. Post. Aug. 20, 1977. at A14, col. I (editorial) (although
mainland has focused little attention on have of statchood for Puerto Rico, "question is
coming"): Ramos, Has P.R. Passed The Print 01 No Return? San Juan Star. Jan. 15, 1977.
at 10. col. 1 ("island's economic abminition by the U.S. will inevitably result In Its coro.
plate political absorption through statchood"). But He Nordheimer, Puerio Miro " Torn
by Dispute Over Seeking Statehood Status. N.Y. Times, Apr. 30, 1978. at 1. col. 4 (statchood
will not receive more than simple majority in plebiacite and Congress likely 10 reject
statehood petition).
825
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
based resources and its ongoing economic stagnation and poverty.'
miles into the sea.³ The inclusion of such a provision in Puerto Rico's
coupled with the possibility of offshore oil and mineral wealth," will
create political pressures for Puerto Rico to demand exclusive rights to
compact essential. of admission could be politically necessary and practically
exploit its surrounding seabed' in an area ranging from nine to 200
Nevertheless, because such an agreement would grant the island
2. See, as. Hort. The Mineral Industry of Puerio Rico, 2 MIN. Y.B. 623, 624 (1974)
(island's mineral production includes only cement, clay, time, salt. sand and gravel. and
28, 5 117(A) (Supp. 1977). the Secretary of Natural Resources of Puerto Rico Is directed
stone); Lens, Puerto Rico could become the United States' next Vietnam, Dallas Times
to obtain from leases of submerged lands "the highest financial return possible, consistent,
Herald, Aug. 14, 1977, at 1.1. col. I & 1.B. col. 1 (discrivery of copper and nickel deposits
however, with the widest possible exploitation or extraction of the commercial mineral."
may allay but will not cure island's economic problems).
This history of exploitation of submerged lands Indicates that the island would follow a
Since the Increase in oil prices in 1972. the Island has been beset by serious economic
leasing program if It were to secure the right to explore Its sesbed as a state.
difficulties. See, c.s., Nordheiner, supre note 1. at 56, col. I (Puerin Rico has become
5. There is presently considerable disagreement about whether Puerio Rico or the
wellare state', with 63 percent of the population qualifying for Federal food stamps"):
United States has the right to exploit the Island's seabed resources. See Puerto Rice: the
60% of Puerio Ricans' Income Below Poverty Level. N.Y. Times, Jan. I. 1977. at 5. cul.
oil issue, supra note 1. at 37 (United States and Puerio Rico "waging a quiet but
2 ('{u}nemployment lover 30%]. inflation and high taxes
have
seriously
crippled
persistent struggle over the Island's title to offshore mineral rights): Agrait, Puerto
Puerto Rico's economy").
Rico , la Tercers Conferencia de las Naciones Unidas Sobre el Derecho Del Mar
3. Studies have shown the possibility of oil and gas deposits from two to nine miles off
published paper) (on file with Tale Law Journal) (history of island's efforts to secure (un.
the northern cuasts of the Island, The deposits could girld an estimated 200,000 harrels
rights over seated at Third United Nations Conference on the Law of the Sea). In Its
of oil per day, an amount sufficient to supply the island's current daily consumption of
Mining Law of 1975. P.R. LAWS ANN. tit. 28, 5 III (Supp. 1977). the island claimed
140,000 barrels. Letter Inim Michael L Vere, Director, Legal Counsel Section of the
ownership of all exploitable commercial minerals in its continental shell. which at present
Office of the Commonwealth of Puerto Rico (Mar. 31, 1977) (nn file with Vale Lew
extend about 12 miles Into the sea. Passelaçqua Christian, Romero's mireculous fish oil,
Journel). Other reports have indicated strong posibilities of limestone of dolomite off
San Juan Star, Mar. 9. 1977. at 16. col. 1. The United States failed to recognize this claim
the nurthern coests. Western Geophysical Company, Evaluation of Hydrocarbon Prompects
and still Puerto Rico submitted a bill to Congress, H.R. 7827, 95th Cong., let Sen. (1977).
of the Island of Puerto Rico, Final Report 12 (Feb. 1975) (report to Poerto Rico Water
In committee, seeking jurisdiction, like that exercised by Texas and Florida.
Resources Authority) (in file with Yele Law Journel). Mobil Oil Corporation has offered
leaky canoe', San Juan Star. Mar. 6, 1978, at 15. col. 2.
three marine leagues (nine nautical miles). Pamalacqua Christian, Island 'adrift in over #
to explore for oil in three northern coast locations. Licha, Exploración EN Ties Puntos, El
Nuevo Dia. Feb. 3, 1977. at 2. cul. 1. The discuvery of manganese nodules. potato-shaped
Commonwealth supporters have been lobbying for Puerto Rico to claim control
pellets each containing a wealth of cubalt, nickel, cupper, stat manganere, have reportedly
the 200-mile economic zone recognized in the Composite Text, supre note 4. arts. 56. over 57.
been made within 200 miles of Puerto Rico's southern coast. Passiacqua Christian,
see, Bryan, Copaken Cree la Isla Faid Perdiendo Oportunided Pera Que se Establesca
Romero's mireculous fish oil-11. San Juan Star, Mar. 19. 1977. at 24. onl. 1.
Limite Sobre sus Aguas Territoriales, El Mundo, Feb. 21. 1977, at 11-B. col. 5; RHC cells
4. Puerto Rico might also seek rights to conserve and manage fishing in a 200-mile
for pressure OR U.S. to obtain rights to offshore oil, San Juan Star, July 1. 1977, at 3. col.
economic none, see note 116 intra (defining economic rone). off its chasts. The United
The United States has declared its rights over the continental shell to the limits of to 1.
States has recently declared such a rone. Fishery Conservation and Management Act of
1976, Pub. L No. 94-265, % 101, 90 Stat. 336 (codified at 16 U.S.C. ! 1811 (1976)): 11. In.
Supp. 1978). In the Third Law of the Sea Conference, the United States proposed the
exploitability. Outer Continental Shelf Lands Act of 1953, A 202. 43 U.S.C.A. g 1332 (West
formal Composite Negotiating Text of the Third United Nations Conference on the Law
recognition of a 200-mile economic zone, see note 116 intra (defining economic in
of the Sea, arts. 56, 57. U.N. Due A/CONF. 62/W.P.10 (July 15. 1977) (recognizing 200-mile
which coastal nations could exclusively exploit the natural resources of the seabed. rone). Docu.
exclusive economic rone over living and nonliving natural resources) [hereinafter cited
ments of the Second Committee, United States Draft Articles, 3(2) Third U.N. Conference
31 Composite Text}. Although Puerto Rico's demands for rights over the seated and over
on the Law of the Sea (Caracas, Venez.) 222. arts. I. 2, U.N. SALES No. E.75. vs
fishing management might involve a similar 200-mile limit, the two demands would
8, 1974). Thus by the time the question of statehood for Puerto Rico is faced (Aug.
Involve different rights, responsibilities, and duties Compare Convention on the Con-
Congress, the United States may well recognize a 200-mik shelf zone. Therefore Puerto by
tinental Shell of the United Nations Conference on the Law of the Sea, art. 2. U.N. Doc.
Rico could at a minimum ask for control to the limit of exploitability. 12 miles, and at the
A/CONT. 13/L.35 (Apr. 29. 1958) (declaring rights to expluit continental shell exclusive
Composite Text, supre note 4, are 57.
maximum request the 200 miles being recognized by the International community. See
to cuastal state) [hereinsfter cited 21 Continental Shelf Convention) with Convention on
Fishing and Conservation of the Living Resources of the High Scas of the United Nations
6. " is unlikely that opposing political parties of the Island would allow statehood
Conference on the Law of the Sea, art. 7. U.N. Due A/CONF. 13/1_54 (Apr. 2A, 1958)
negotistors to concede to the federal government Puerio Rican resources as valuable
(recuenising coastal sistes's right to impose regulations to connerve fish but probibiting
potential of "reducing and ending
those of the seated, See, 6.8. Passalacqua Christian, supre note 3 (sealied resources have as
discrimination against foreign fishermen) [bereloafter cited as Fishing Convention).
Puerto Rico workl likely *** the exclusive right to explore and exploit the natural
would not look good for [Covernor] to be accused of giving Federal away Aid to Programs the Federal Govern. (and in
dependence
on
resources of the seated. See P. 845 intra. The federal government currently authorizes
dole ment Puerto Ricu's natural resources and thus binding us over in the bondage of Federal
the Secretary of the Interior "to grant ... the highest requesible qualified Iddder" leases
note 5 forever"): RHC Cells for Pressure on U.S. to Obtain Rights to Offshore Oil, supre
for the exploration airl development of the submerged landle under national control.
(former Governor calls on government to demand 200-mile
See Outer Continental Shell Lands Act of 1953. % 205(a). 13 U.S.C.A. X 1337(a) (West Sopp.
Seabed resources would aid Puerto Rico in solving the economic difficulties rone).
1978). A payment of toyalty is required. 1d. K 1337(h). Similarly, Texas authorizes a
by in mineral deficiencies, especially in oil, me note 2 supre, and may be exacerbated
School Land Board to lease to the highest bidder the exploration and exploitation
compensate PUESTO for the Increased economic burdens Imposed by statehood. See UNITED necessary STATES- to
PUERTO Rico COMMISSION ON THE STATUS OF PUERTO Rxo. HEARINGS ON THE STATUS
LIBRARY PHOTOCOPY
rights to in submerged lands See TEX. New. Rrs. Card ANN. tit. 11. " 52.011. 019
(Vernon 1977). Louisians, on the other hand, authorizes its State Mineral Road to
issue leases to the bidder making the "bid must advantageous to the state." See 1A. R.V.
(statchood would require greater contribution to federal purse, and labor costs would Mayne)
Rico, S. Doc. No. 108, 89th Come. 211 Seas. 593-602 (1966) (Dr. Alvin OF
STAT. ANN. 1 30:127(a) (West Supp. 1978). In the Mining Law of 1975, P.R. LAWI ANN. in.
(Arthur Burns) (statehood for Puerto Rico is economically fessible).
crease prohibitively If federal minimum wage laws applied to island). But see id. at 623.35 in.
826
827
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
seabed rights denied to any-of the fifty states at their admission to the
the Court has not directly addressed the question whether the equal
Union,' it would probably meet with opposition based on the "equal
footing doctrine permits Congress to grant rights to an incoming state
footing doctrine." That doctrine "prevents extension of the sover-
that exceed those granted to any existing state at its admission."
eighty of a State into a domain of political and sovereign power of the
This Note suggests a new historical analysis of the equal footing
United States from which the other States have been excluded" when
ductrine that demonstrates that the doctrine poses no barrier to such
the state enters the Union.' Although the Supreme Court in Alabama
an extensive seabed grant upon Puerto Rico's admission into the
v. Texas'' held that Congress has the power under the property clause
Union. The Note defines the submerged lands issues left unsettled by
of the Constitution to grant existing states unequal seabed rights,"
the case law, and derives a framework for the equal footing doctrine
from 2 historical analysis of submerged lands and equal footing cases.
7. See pp. 832-33 infre (discussing United States V. Texas, 339 U.S. 707 (1950). which
vested seabed rights In federal government at state's admission because of equal boting
It then applies this framework to Puerto Rico's claims and demon-
doctrine).
strates that Congress may, without violating the equal footing doc-
B. See note 9 infra.
trine, cede seabed rights to the island on admission. Finally, the Note
Another objection involves a possibility that the Puerto Rican government might seek
to favor its citizens in granting rights to exploit the seabed. See Mining Law of 1975. P.R.
suggests considerations for the language of such an agreement and
LAWS ANN. tit. 28, 5 117(14) (Supp. 1977) (requiring every person who leases right to
defines its limitations.
extract commercial minerals to agree that "imofar as economically possible, persons
residing in Puerto Rico be employed for the works originating and carried out under
such lease, and that such persons be trained In such operations as require technical
1. The Allocation of Seabed Rights
skills"). Puerto Rico as a state, however, would be subject to challenges of such actions
based on the privileges-and-immunitier and equal protection clauses. U.S. CONST. amend.
XIV. I I; see, e.g., Toumer V. Witsell, 334 U.S. 385. 395-403 (1948) (South Carolina
In a long line of cases,14 the Supreme Court has invoked the equal
licensing scheme discriminating against nonresident fishermen declared Invalid under
footing doctrine to vest control over the seabed in the federal govern.
privileges-and-immunitiet clause): Alexandris Scrap Corp. V. Hughes. 391 F. Supp. 46,
ment." Although their reasoning and results have been subjected to
56.58 (D. Md. 1975) (Maryland statute requiring processors to have office in state com-
Traty 10 equal protection clause). 11 is beyond the scope of this Note to discuss the
numerous criticisms," the cases retain their precedential value." The
propriety of such Lavoritism by a state toward its own citizens.
9. United States V. Texas, 339 U.S. 707. 719-20 (1950) (plurality opinion). The equal
12. See PP. 832-33. 838 intra.
footing requirement first appeared in the Northwest Ordinance of 1787. see I THE
A mere expectancy or even a promise of seabed control after adraission would not be a
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 108 (M. Jensen etc.
sufficient guarantee for Puerto Rico as " commits luelf to the Irrevocable status of
1976) (quoting Ordinance in full). as a condition demanded by Virginia for in cession
statchood. Seabed rights are inextricably tied to the other economic and political issues
of western lands 10 the Union. see Hanna, Equal Footing in the Admission of States. 3
surrounding Puerto Rican statehood. See note 6 supre. The grant of seabed rights must
BAYLOR L Rtv. 519, 523 (1951) (history of equal footing clause). Beginning with the
be simultaneous with admission. See Passalacqua Christian, supre note 3 (admission to
admission of Tennessee in 1796. all states were admitted using the equal footing clause. 11.
Union without full seabed rights would be "cruel yest" on Puerto Rican people).
Congressional concern and belief in the necessity for "equality" of states was quite
13. The present Governor of Puerto Rico, Carlos Romero Barcelo, has declared that
evident when Hawaii attempted, during its statchood negotiations, to secure control over
it his party is returned to power in 1980, he will pursue a plebiscite for statehood the
the scabed between its islands and was rebulled by equal footing arguments. See State.
next year. NEWSWEER, Sept. 11, 1978, at 35. In order to make an objective and Informed
hour for Hawaii: Hearings on S. 49, 3. " & H.R. 3375 Refore the Senate Comm. on In.
decision concerning their future, the Puerto Rican people need to understand the dif.
terior and Insular Affairs, 83d Cong., 1st & 2d Seas. pt. 2. at 40.53 (1954) (history of
ference between the consitutional and the political prices that statchood would require.
Hawaii's demands and their resolution). Hawaii finally agreed to accept a condition in
The equal footing framework developed in this Note can be applied to test the constitu-
its act of admission that the Submerged Lands Act of 1953 "shall be applicable to the
tional basis of any condition for admission demanded by Congress or by Puerto Rico.
State of Hawaii, and the said State shall have the same rights as do existing states there.
14. See, e.g., United States V. Texas, 339 U.S. 707 (1950): United States V. Louisiana,
under." Id. pt. 3, at 725.
339 U.S. 699 (1950); United States V. California, 332 U.S. 19 (1947).
It seems probable that similar equal footing arguments will arise during Puerto Ricu's
15. See PP. 831-33 infra.
negotiations over statehood because It is an often assumed that entering the Union would
16. See, e.g., Hanna, The Submerged Land Cases, 3 BATLOR L REV. 201. 201 (1951)
automatically require relinquishment to the federal government by the island of its rights
("few judicial decisions . contrary to the expressed views of more well-Informed
PHOTOCOPY
to sealied resources. See, e.R., () Toole, Offshore Oil laws Reised in P.R. Proposal, Wash.
lawyers"); Neujoks, Title to Lands Under Navigable Waters. 32 MARQ. L Rev. 7. 37
Post. Jan. 2. 1977. at AZ. col. 3 (President Ford's statchood proposal may have been
(1948) ("United States Supreme Court is wrong in holding that the Federal Govern.
motivated by desire to federalize Island's offshore resources); Passiacqua Christian, supre
ment has paramount rights to the tidelands"). But see Clark, National Sovereignty and
note , (island's rights over sealed would disappear If it became state: under statchood it
Dominion Over Lands Underlying the Ocean. 27 Tex. L REV. 140. 141 (1948) ("historical,
would be entitled to only. three miles under United States laws). Finally, precedent in.
political and practical" reasons exist for federal dominion over seabed).
dicates that opposition by existing states or the executive might arise it the Island were
17. See United States V. Maine, 420 U.S. 515, 319, 524 (1975) (reaffirming ressoning
granted disproportionate rights See notes 101 & 102 infra.
and results of cases vesting rights over seabed in federal government). A Special Master
10. 347 U.S. 272 (1954) (per curfam).
appointed by the Court to take and review evidence in Maine found that the historical
11. ld. at 273; see U.S. CONST. art. 1V, 5 3. cl. 2 ("The Congress shall have Power to
conclusions of the submerged lands cases were correct. Report of Albert B. Maris, Special
dispose of and make all needful Rules and Regulations respecting the Territory or other
Master, at 75-81, United States V. Maine, 420 U.S. 515 (1975) [hereinafter cited 25 Special
Property belonging to the United States
3
Master's Report). The Court in Maine accepted the Master's findings. 420 US. at 522-25.
828
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Puerto Rican Seabed Rights
cases merit careful analysis, because the Court has never explicitly
decided whether the equal footing doctrine is a constitutional limita-
overturned this broad reading of Pollard, but failed to provide a con-
tion on the power of Congress to set the terms for admission into the
sistent or clear framework for evaluating subsequent equal footing
claims.
Union and, if so, whether this limitation precludes Congress from
granting disproportionate seabed rights to an incoming state.
In the first Tidelands Case, United States V. California," the Court
Until the 1940s, the leading authority concerning states' rights to
upheld the federal government's claim to all submerged land rights in
control over the seabed was the 1845 case of Pollard's Lessee V. Hagan."
the three-mile marginal sea24 claimed by California." Because the
Pollard held that because Alabama had been admitted to the Union
original states had never acquired imperium (regulatory power) or
on an "equal footing" with the other states, it was entitled to the same
dominium (ownership interest)** over the submerged lands of the
rights of sovereignty and jurisdiction over shorelands as were possessed
marginal sca, and because California was admitted to the Union on
by the original states." For over a century Pollard stood for the broad
an equal footing with the original states, the Court held that California
proposition that states owned title to all "navigable waters, and the
had demonstrated no ownership of the claimed area." Pollard was
soils under them" within their historic boundaries." A series of
distinguished by the fact that acquisition, protection, and control of
Supreme Court decisions from 1947 to 1950, the Tidelands Cases,"
the three-mile marginal belt "has been and is a function of national
external sovereignty."" Thus, lands in which "national interests" such
18. 44 U.S. (3 How.) 212 (1845). In Pollard. the Court rejected plaintiff's claim to
as defense, commerce, and foreign affairs were dominant were deemed
certain shorelands based on a federal patent hard after Alabama's admission into the
Union. Plaintiff had argued that the United States in Alabama's compact of admission
retained ownership of the lands. Id. at 220-21.
23. 332 U.S. 19 (1947).
19. Id. at 228-29. The Court held that, at the time of the American Revolution, "the
24. "Marginal sea" and "territorial - refer to the three-raile beft of water measured
people of each state became themselves sovereign," and possessed the absolute right to
from the a calse of inland waters. See United States V. Louisiana, 394 U.S. 11. 22
all navigable waters and mills within the colony. Id. at 220 (quoting Martin V. Wacklell,
(1969) defining terms): Manchester V. Massachusetts, 139 U.S. 240. 258 (1891) (recugnizing
41 U.S. (16 Pet.) 367, 410 (1842). The Independent colunies retained this sovereign right
one league as minimum limit).
at the formation of the Union. Id.
25. 332 U.S. at 34.30. 39.40. California argued that because the original states acquired
The Court in Pollard also invoked the premise that the federal government could not
title to the three-mile belt from the English Crown and because it had been admitted on
permanently hold or condemn lands within the boundaries of a state without the state's
an equal tooting with the original states, it acceded to the same right of title over the
express consent. 1d. at 223. The Constitution reserved title to "shores of navigable waters,
submerged lands. Id. at 23. California also pleaded several defenses all of which the Court
and the with under them" to the original states. Id. at 230. Alabama was admitted on an
dismissed summarily. Id. at 23-24 & n.2. 39-40.
equal footing, because the Court Imputed to the state at the time of in admission
26. The California majority held that national Interests required that the federal
ownership of and suvereignty over all lands that It did not explicitly cede to the federal
government have the "powers of dominion and regulation" over the marginal belt Id.
government in its compact of admission. Id. at T23. The Court found that a provision
at 35. Justice Frankfurter, in dissent, used the terms "dominium" and "Imperium," id.
reserving for the United States waste and unappropriated lands (public lands) did not
at 43.44. to refer to what the majority labelled "dominion" and "reguistion." He argued
include shorelands, and that a condition concerning freedom of navigable waters was
that although the majority was right in denying California a proprietary Interest or
only a "regulation of commerce" and did met confer property rights on the United
dominium over submerged lands and in amerting that national Interests conferred
States Id. at 230. Therefore, the federal patent to plaintiff was invalid. Id.
regulatory power ONS the federal government, the majority failed to explain how the
It was not until 1875. In Kohl V. United States, 91 U.S. 307 (1875). that the Supreme
federal government acquired dominium. Id. at 44. Justice Frankfurter's "imperlum" and
Court hehl that the power of eminent dumain was inherent In suvercignty and that,
"dominium" terminology was later adopted by the plurality in United States V. Texas.
comsequently, In under to Implement Its constitutional functions, the United States could
339 US. 707. 712-13 (1950).
conderon lands within a state without the state's consent. Id. at 373-74. In United States
27. 332 U.S. at 32. 38.39. Without an evidentiary hearing, the Court said that It could
V. Texas. 339 U.S. 707 (1950). the Court plurality further held that an express state grant
not conclude that "the thirteen original colonies separately acquired ownership of the
at admission was not necessary in order for a state to relinquish title to the United
three-mile helt of the soil under IL even If they did acquire elements of the sovereignty
States Id. at 718.
of the English Crown by their revolution against it" Id. at 31 (footnote omitted). In
20, 44 U.S. (3 How.) at 230.
United States Y. Maine, 420 U.S. 515 (1975). a Special Master finally conducted a hearing
21. Pollard actually held that states owned sitle to all "shores of navigable waters, and
on historical evidence, led Special Master's Report, supre note 17. at 25.65. and the Court
the solls under them." 1d. (emphasis added). Nevertheless, subsequent cases interpreted
explicitly found that the colonies had not owned the three-mile helt. 420 U.S. at 522.
Pollard to rocan that & state owned title to all tide waters and their beds within the
But see Hardwicke, Illig & Patterson, The Constitution and the Continental Shell. 26
Male's territorial houndarles. See, e.g., The Abby Dodge, 223 U.S. 166. 175 (1912): Mc.
Tax. L REV. 398, 408.26 (1948) (colonies and original states were landowners of sub-
Cready V. Virginia, 94 us. 391, 394.95 (1876). For a general history of cases relying on
merged lands).
the Pollard rule. see Naujoks, supre note 16, at 21-37.
28. 332 U.S. at 34. The Court limited the Pollard rule to cover only state ownership
22. "Tklelands" is a misnomer given to three submerged lands cases-United States v.
of inland waters and soils under them (land between the lines of the ordinary high and
Texas, 339 U.S. 707 (1950). United States V. Louisians, 339 U.S. 699 (1950). and United
low water marks). Id. at 36. The Pollard rule had been applied in other CHKS Involving
States V. California, 332 U.S. 19 (1947). See Hyder. United States V. California, 19 Mrss.
the marginal sea, See note 21 supre (citing cases). The California Court read those cases
LJ. 205, 265 & nn.2-3 (1948) (Tidelands Cases involved lands under tide waters and not
as involving only the right of states to regulate fishing In the absence of conflicting con.
tidelands, lands covered and uncovered by ordinary tide).
gressional legislation. 332 U.S. at 37-38.
830
LINTON LIBRARY PHOTOCOPY
831
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Vol. 88: 825, 1979
Puerto Rican Scabed Rights
to be within the "paramount rights" and powers of the federal govern.
seabed dominium 10 the federal government."
ment after the admission of a state into the Union."
In 1953, Congress passed the Submerged Lands Act," which vested
Three years later, the Court followed California "a fortiori" in
ownership of the marginal sea and its resources in the states and
United States U. Louisiana," and expanded its reasoning in United
provided that states could claim a greater seaward boundary to a limit
States V. Texas." Texas, as an independent republic, had claimed and
of three marine leagues in the Gulf of Mexico" if "it was so provided
exercised both imperium and dominium over submerged lands three
by its constitution or laws prior to or at the time such State became a
marine leagues (nine nautical miles) from its shore." Texas argued
member of the Union, or if it has been heretofore approved by Con-
that at its admission it ceded to the United States only imperium, and
gress."⁴" In a per curiam decision in Alabama V. Texas,42 the Court
not dominium, to this area." Justice Douglas, writing for the Court
denied the motions of Alabama and Rhode Island for leave to file
plurality, disagreed, holding that "although dominium and imperium
complaints challenging the constitutionality of the Submerged Lands
are normally separable and separate,"14 "national interests and national
Act.43 Alabama and Rhode Island claimed that by granting some Gulf
responsibilities" compelled federal control of both regulatory and
states an extended boundary over the three miles to the three marine
property interests in the seabed." Because it entered the Union on an
league limit, the Submerged Lands Act violated the equal footing
equal footing with the original states,34 Texas automatically lost all
guarantees in their acts of admission and resulted in their "inferior
sovereignty."*
29. 332 U.S. at 34-36, 38.39.
The Court, which included only three members of the majority that
30. 339 U.S. GM. 705 (1950). Based in a 1938 state statute, Louisiana claimed control
over the realast within 27 miles of its shores 11. at 703. The United States sought a
had decided the Tidelands Cases, summarily upheld the Submerged
declaration of its sights to the area. Id. at 701. The Court hehl that the federal govern.
Lands Act on the ground that Congress, under the property clause of
ment's extended In the entire area claimed by Louisians, even though (M)
federal claim to the acabed beyond three miles had been proven. Id. at 704.05 The
Truman Proclamation of 1945, Exce. Proclamation No. 2007. 3 C.F.R. 07, n8 (1915). had
of the controversy. 339 U.S. at 712. Texas, however, was not admitted under that "Joint
declared United States "jurialiction and control" over the continental shelf. but, " was
Resolution" but under the joint Resolution for the Admission of Texas Into the Union,
explained in all accompanying release, Exec. Order No. 2033. 3 C.F.R. 437 (HM5), the
J. Res. 1. 20th Comg., Ist Sees. 108 (1845). The latter resolution was never "submitted to
Truman Proclamation alkl not purport In TEM title to the shell in either the federal or
nor accepted by Texas." Hanna, IN/ITE note 9, at 520. The Court plarality later ordered
state governments But see Note, Conflicting State and Federal Claims of Title in SNL.
the amendment of the Texas opinion to make correct reference to the proper document.
merged Lands of the Continental Shell. Mi YALE LJ. 350, 3(7) (1917) (Supreme Court
United States V. Texas, 340 U.S. 848 (1950).
could use Truman Proclamation to int title to shell in federal government). " was INI
37. 339 U.S. at 718.
unil three years after Louisiana that Congress declared It "to be the policy of the United
JM. Fub. L No. 83.91. 67 Stat. 29 (1953) (endified at 43 U.S.C. M 1301-1315 (1970)).
States that the submit and seated of the [shelf area outside the marginal scal apportain
The Act was Intended to undo the effects of the Tidelands triad. See 3. REP. No. 133.
to the United States." Outer Continental Shelf Lands Act of 1953, Puh. 1. No. 83.212.
83.1 Come., 1st Seas 8, reprinted in (1953) U.S. Cose Cown, & As. NEWS 1474. 1481
5 3. 117 Stat. 462 (contified at 43 U.S.C.A. A 1332 (West Supp. 1978)). Once again, as in
("purpose of [Submerged Lands Act] to write the law
:
the
Supreme
Court
believed
United States V. California, 332 U.S. ID (1047). the Court in Louisions failed to explain
it to be in the past-that the States shall own
all
lands
under
navigable
waters
how the federal government acquired dominium intr the shell. See note 20 supre (cils.
within their territorial jurisdiction"); H.R. Rtp. No. 095, BIM Cong., 1st Sess. 5. reprinted
cusing California Count's failure to explain national acquisition of dominium).
in 119531 U.S. Code Cown. & An. News 1395, 1399 (Submerged Lands Act fixed as law
31. 339 U.S. 707 (1250) (plurality opinion). The United States In Texas mught a
that which prior to California "bellevel and accepted to le the law of the land"-that
declaration of rights over the submerged lands in the Cull of Mexico burdering Texas.
states own submerged lands within their boundaries). The Supreme Court viewed the
Id. at 709.
Art as an exercise of Congress's power to dispose of public property. and not as a
32. Id. at 712.13. The Court plurality assumed the validity of Texas's claim that it had
mandate to overturn the Tidelands Cases. See United States V. Louisiana, 363 U.S. 1. 7
carrelsed Imperium and dominium orer the three marine league belt #1 a Republic. 11.
(1960).
at 717.
39. 43 U.S.C. A 1311(a) (1970).
33. Id. at 712.13. The Intention to cede only Imperium, Texas argued, was evidenced
10. Id. I 1301(b) ("in no event shall the letter 'boundaries' be Interpreted as CX.
by the retention of recent and unappropriated lands In its compact of admission. Id. at
tending from the cuest line more than three geographical miles Into the Atlantic Ocean
714.15; ME Joint Resolution for annexing Texas to the United States. 1. Res. 8, 28th
or the Pacific Ocran, or more than three marine leagues into the Cell of Mexico").
Cong., 211 Sea. 797 (1845). The United States responded by arguing that Texas's grant of
41. Id. I 1312.
all property necessary to the public defere Impliculy celed the marginal belt to the
12. 347 U.S. 272 (1954).
federal government. 339 U.S. at 714-15.
43. Id. at 273.
34. 339 U.S. at 719 (Tontrote omitted).
44. Complainant Alabama's Brief In Support of Motion for Leave to File Complaint
LIBRARY PHOTOCOPY
35. Id.
and Complaint at 57-72. Alabama V. Texas, 347 U.S. 272 (1954) (Alabama grant extends
36. Justlee Douglas found the equal footing doctrine to control and bind the substance
only to three-mile belt; any greater grant to other states denies equal footing and results
of admission even without the sgreement of the state In the terms of the admission
in making Alabama's sovereignty Inferior): Brief for Complainant Rhode Island at 10.
declaration. The Justice relieved INI the equal footing claims of the Joint Resolution for
Alabama V. Texas, 317 U.S. 272 (1954) (Rhode Island claims Submerged Lands Act
annexing Texas to the United States, J. Ro. M. 28th Come., 31 Sen. 707 (1845). to dispose
violates equal footing clause).
832
833
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Vol. 88: 825, 1979
Puerto Rican Seabed Rights
the Constitution, could divest itself of the "public domain."" Justice
mains unclear whether the equal footing doctrine is a constitutional
Douglas, the author of Louisiana and Texas, and Justice Black, the
bar to a congressional grant of disproportionate seabed rights to an
author of California, relied on the equal footing doctrine to argue that
incoming state. In light of subsequent cases, it cannot be argued that
Congress had no authority to "relinquish elements of national sover.
the Texas decision settled this question.
eignty over the Oceans." The new Court in Alabama, however, over-
turned Texas sub silentio by holding that Congress in a postadmission
11. The Equal Footing Doctrine: A Historical Reinterpretation
grant could separate property interests in the seabed from national
One reason the submerged lands cases seem confused or inconsistent
sovereignty." The Court subsequently confirmed Congress's power to
is that the Court has never adequately defined the content or sources
cede federal "property" to states in unequal portions." Recently, in
of the equal footing doctrine. The equal footing doctrine ultimately
United States v. Maine." the Court reaffirmed the results of its Tide.
rests on concepts of federalism: the United States is a "union of po-
lands Cases by upholding the paramount rights of the federal govern-
litical equals." Although superficially derived from a clause common
ment to the continental shelf** outside the marginal sea." Thus it re.
in statehood compacts," equal footing in this century has emerged as
an amalgam of constitutional and statutory precepts. Constitutional
43. 347 U.S. at 273.
principles alone act as an affirmative limitation on congressional power
46. Id. at 279 (Black, J., disenting): see id. at 282 (Douglas, J- dimenting). Justice
to negotiate terms in compacts of admission, but statutory precepts also
Douglas viewed federal powers over submerged lands as "Incidents of national suver.
cignty" that could not be "abdicated" without undermining the equality of states the
guide courts as they interpret such compacts.
equal footing clause required. Id. at 282-83.
47. See 34 B.U. L Rtv. 504. 507 (1054) (Alabama "tacitly repudiated" Texas): c/. 30
U. MIAMI L REV. 203. 213 (1975) (Submerged Lands Act. granting seabed rights to states,
A. The Constitutional Component of the Equal Fooling Doctrine
is "de facto repudiation" of prior rationale for vesting control In federal government).
The Constitution provides that "[n]ew States may be admitted by
Texas and Alabama indicate that the Court perceived a difference between a grant at
admission and a grant after admission. The Texas plurality viewed seated rights 31 $1)
the Congress into this Union." Congress may, on "penalty of deny-
intertwined with all as to be inseparable at admission. Otherwise "there is or
ing admission," require any conditions for entry into the Union."
may be in practical effect a subtraction in favor of Texas from the national sovereienty
of the United States" 339 U.S. at 719. A seabed grant after admission, however, "was
Since the admission of Ohio in 1802,** Congress has imposed on states
mereir an exercise of paramount national power. United States V. Maine, 420 U.S. 515,
a variety of special conditions that have limited the sovereign and
524 (1975). This reasoning fails to explain the argument in Texas that in the case of
political powers that states can exercise after admission. On the other
seabed rights property rights (dominium) follow and commingle with sovereignty (im-
perfum). 339 U.S. at 719. In effect, the underpinning of Texas was overturned because
in Alabema the Court found property rights separate and separable from national
32. Case V. Toftwa, 39 F. 730, 732 (C.C.D. Or. 1889) ("The doctrine that new states
soversignty. But of. p. 840 intra (harmonizing results of Alabama and Texas).
must be admitted on an 'equal footing' with the okl ones does not rest on any ex.
48. In United States V. Louisiana, 363 U.S. I (1900), and United States V. Florida. 363
press provision of the constitution
but
on
what
is
considered
to
be
the
general
U.S. 121 (1960). the Court recognized claims under the Submerged Lands Act by Texas
character and purpose of the union of the states
union of political equals")
and Horida for dominium over three marine leagues in the Cull of Mexico, but dented
53. See p. 836 infra.
similar claims by Louisians, Minissippi, and Alabama. Texas and Florkia showed that it
54. U.S. COMIT. art. IV, I 3. cl. 1. See generally Park, Admission of States and the
was the intention of Congress to recognize the extended boundaries that existed at the
Declaration of Independence, 33 TEMP. LQ. 403, 405 (1960) (five procedural methods by
time of Tenan's admission to the Union and at the time of Florida's readmission after
which states have historically been admitted).
the Civil War. This showing of congressional intent was the sole element necemary 10
55. Coyle V. Smith, 221 U.S. 559, 568 (1911): cf. Brittle V. People. 2 Neb. 198. 216
establish entitlement under the Subrecred Lands Act. United States V. Louisiana, 363
(1872) (how states will be admitted Is political question to be settled by territorial residents
U.S. 1, 29.30 (1960).
and Congress-not courts).
19. 420 U.S. 515 (1975). The defendants in Maine were the 13 states burdering the
58. See Enabling Act of Ohio, ch. 40. ? Stat. 173 (1802). Prior to Ohio's admission,
Atlantic Ocean. Id. at 516-17.
Vermont, Kentucky, and Tennesse, the first three states added to the new union, were
50. Continental shelves have typically been defined
admitted without the imposition of conditions. See An Act for the admission of Tennes-
as those stightly submerged portions of the continents that surround all the con-
see, ch. 47, I Stat. 491 (1796): An Act for the admission of Vermont, ch. 7. I Stat. 191
tinental mass that forms the lands above water. They are that part of the
(1791); An Act admitting Kentucky, ch. 4. 1 Stat. 199 (1791). For on explanation of
continent temporarily (measured in geological time) overlapped by the The
cnabling acts and acts of admission. see Park, impre note 54. at 405 (enabling act author.
outer boundary of each shell is marked by a sharp Increase in the shape of the M'S
Ires constitutional convention wheress act of admission ratifies admission of state; act of
floor. 11 Is the puint where the continental mass drops off steeply toward the ocean
admision need not be preceded by enabling act).
deeps
57. See note 60 infra (examples of conditions): Dunning. Are the States Equal Under
H.R. REP. No. 215, 83d Cong., 1st Seas. 6. reprinted in [1953] U.S. Code Cona. & AD.
the Constitution? 3 POLITICAL Sci. Q. 125 (1888) (conditions Imposed on Incoming states
NEWS 1385, 1390.
in nineteenth century); Park, supre note 54, at 406-10 (conditions Imposed in twentieth
51. 420 U.S. at 527-28.
century).
LINTON LIBRARY PHOTOCOPY
834
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Vol. 88: 825, 1979
Puerto Rican Seabed Rights
hand, since the admission of Tennessee in 1796," Congress has in.
capital before 1913. The Court held that under the equal footing
cluded in each state's act of admission a clause providing that the state
doctrine Congress cannot, as a condition of admission, either place
would enter the Union "on an equal footing with the original States
limitations on the powers of a new state or demand the right to
in all respects whatever." To eliminate the tension between "equal
exercise powers over a new state not authorized by the Constitution."
looting" clauses and the conditions limiting the sovereign and political
The Court suggested for the first time that the equal footing doctrine
powers of particular states after admission, the Supreme Court in
derived its force not merely from the inclusion of an equal footing
the nineteenth and early twentieth centuries held the conditions to be
clause in acts of admission, but also from the constitutional imperative
of equality among the states." It asserted that the words "this Union"
either valid exercises of Congress's commerce or property powers" or
in Article IV of the Constitution* refer to "a union of States, equal in
state constitutional provisions that could later be removed by the
power, dignity and authority, each competent to exert that residuum
amendment process."
of sovereignty not delegated to the United States by the Constitution
Nevertheless, the Supreme Court struck down one such condition
itself."*"
in 1911 in Coyle U. Smith." The Court in Coyle upheld an Oklahoma
The holding in Coyle rested on notions of "dual federalism." Under
statute moving the state capital from Guthrie to Oklahoma City against
this doctrine federal and state governments were viewed as fully in-
a challenge that the move violated the state's enabling act. Plaintiff, a
dependent in their respective spheres of power, with federal powers
property owner in Guthrie, claimed that the statute contravened a
coumerated by Article I and all other powers reserved to the states by
condition in the act under which the state had agreed not to move its
the Tenth Amendment." As a result, Congress cannot in an act of
admission diminish or impair the sovereign and political powers of an
58. See An Act for the admission of Tennesse, ch. 47. I Stat. 491 (1796).
incoming state, including the power to designate its capital."
59. See Hanna, supre note 9, at 523-24. Prior to Tennessee's admission, Vermont and
Kentucky were each "received and admitted Into this Unkm, as a new and entire member
of the United States of America." An Act for the Admission of Vermont, ch. 7, I Stat.
G. Id. at 563-64; HE Enabling Act of Oklahoma, Puls. 1. No. 59-231, 5 2, 34 Stat 207
191 (1791): An Act Admitting Kentucky, ch. 4. I Stat. INJ (1791). This language is chow to
(1906). The condition was not Included in the state's constitution but was adopted in B
the equal footing terminology. although the phrase is not used expilcitly.
separate ordinance. 221 U.S. at 504-65.
60. In reviewing the conditions Imposed on states, one nineteenth century scholar
65. 221 U.S. at 573.
suggested that "the theory that all states have equal powers must be regarded as finally
60. Id. at 580.
defunct." Dunning. supre note 57. at 452. Many of the conditions community imposed
67. U.S. CONST. are IV. $ 3. cl. 1 ("New States may be admitted by the Congress into
upon incoming states, such as the duties to keep navigable rivers toll-free for United
this Union ")
States citizens and LES nonresident and resident proprietors equally, see, P.R. Enabling
68. 221 U.S. at 567.
Act of Louisiana, ch. 21. 1 3. 2 Stat. G41 (1811). were grounded in Congress's constitu-
69. The term "dual lederallsm" was coined by Professor Corwin. See L CORWIN, THE
tional powers. Other less common conditions, such " requirements that state constitu-
TWILIGHT or THE SUPREME COURT I (1934). He used the term to describe the judicial ap-
tions provide that government officials be literate In English, see, e.e. Enabling Act of
proach to federalism that prevailed from the Taney Court to the New Deal. Id. at 50.
New Mexico and Arizona, Pub. L No. 61.219. % 2. 20. 36 Stat. 557 (1910). or that polyr.
Many of the Supreme Court's decisions before the New Deal reflected dusl federalist
amounts marriages be prohibited. see, C.R., Ensiling Act of Utah, ch. 138, % 3. 28 Stat. 107
notions See, es., United States V. Butler, 297 U.S. 1, 77-78 (1936) (Agricultural Adjust
(1894). did not Involve matters that were generally viewed at that time as subject to federal
ment Act unconstitutional because taxing power cannot be used for federal regulation in
regulation. See C. BEARD, AMERICAN GOVERNMENT AND POLITICS 459.72 (1th al. 1926) (states
area reserved to states): Hammer V. Dagenhart, 247 U.S. 251, 273.76 (1918). overruled.
in eighteenth and nineteenth century differed widely in self-imposed electoral require.
United States V. Darby, 312 U.S. 100, 116 (1941) (Act of 1916 to prevent Internate COM.
ments); C. Curtis, Admission of Utah: Limitation of State Sovereignty by Compact with
inerce In products of child labor unconstitutional as federal Intrusion into state matters).
the United States 17 (1887) (opinion pamphlet) (Constitution reserved to states power ID
See generally M. VILE. THE STRUCTURE OF AMERICAN FEDERALISM 68 (1961) (under dual
control domestic relations, Including polygamy: Utah's power limited because of terms of
federalism, exercise of federal government's constitutional powers limited by state sover.
compact of admission).
cignty: Tenth Americant frequently Invoked to curtail express congremional power):
61. U.S. CONST. art. 1. 5 8. cl. 3 (commerce claum): id. art. IV. A 3. cl. 2 (property
Corwin, The Persing of Duel Federalism. 36 VA. L REV. 1. 4 (1950) (federst and state
classe); see, is., United States V. Sandoval, 231 U.S. 28. 38 (1913) (conditions relating to
governments are co-ordinate with and equal to one another).
regulation of affairs with Indian tribes within commerce power clause): Stearne V.
70. 221 U.S. at 573 (mversign and political powers of incoming states cannot be "con.
Minnesota, 179 US. 223, 250 (1900) (provisions relating to federal property within power
stitutionally diminished, Impaired or shorn away by any conditions, compects OF stipula.
to dispose of property).
tions" in acts of admission).
62. Coyle V. Smith, 221 U.S. 559, 568 (1911) (dicium): accord, Brittle V. People, 2 Neh.
The equal footing ductrine, however, does not require the equality of states in the
198, 218 (1872): see Monnet, Violations by # State of the Conditions of in Enabling Act.
manner In which they exercise sovereign and political powers. For example, In such
10 COLUM. L REV. 591, 605 (1910) (Congress cannot "keep a State in tutelage after it
matters as powers delegated to the three branches of government or to local governments
comes into the Unkn"; state can always amend Its constitution).
the arrangements of the states vary substantially. Compare CAL COMIT. arts. IV, V
63. 221 U.S. 559 (1911).
(delegating general powers to autonomous executive branch; relying extensively on ref.
836
837
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Puerto Rican Scabed Rights
Conversely, the equal footing doctrine, based on notions of sover-
The Trans plurality. however, returned to a model of dual federalism
eign equality, might also prohibit the enlargement of the powers of
by assuming that exclusive federal control over the scabed was
particular states into areas granted by the Constitution to the national
necessary."
government. This inversion of the constitutional equal footing doc.
The Court in Alabama v. Texas" was misguided in not addressing
trine formed the basis for the Court's 1950 plurality decision in United
the constitutional equal footing arguments." The reasoning in Texas
States v. Texas." Although it did not explicitly hold that Congress
required the Alabama Court to determine whether the Submerged
could not expand the sovereign and political powers of an incoming
Lands Act undermined the constitutional "equality of States" so as to
state in a compact of admission, the Court plurality cited constitu-
make them "different in [the] dignity and power'" that they share as
tional reasons as preventing "any implied, special limitation of any of
co-equal members of the Union." Because the Alabama Court did not
the paramount powers of the United States in favor of a State."1"
consider the constitutional language in Texas, the latter opinion should
Since 1937, the doctrine of dual federalism has been replaced by
not be understood to bar affirmative congressional actions that vest
theories of "couperative federalism." Under cooperative federalism,
seabed rights in some states that are greater than those enjoyed by other
federal and state governments are viewed as sharing powers and func.
states."
tions, although national powers and interests take precedence over
state sovereignty." Consistent with this more expansive view of federal
B. The Statutory Component of the Equal Footing Doctrine
sovereignty, the plurality opinion in Texas suggested that the equal
Ultimately, the holding in United States v. Texas" must be viewed
footing doctrine "prevents extension of the sovereignty of a State" into
as turning on statutory, not constitutional interpretation. Although
an area of paramount rights of the United States "from which the
the Constitution guarantees sovereign equality to the states, it does not
other States have been excluded, just as it prevents a contraction of
ensure their economic or proprietary equality. Because state sover-
sovereignty
which would produce inequality among the States."11
eighty includes the right to acquire and to dispose of property," and
because the Constitution gives Congress plenary power to grant federal
erends) with LA. CONT. arts. III.VI (containing specific and detailed delimitation of
lands to the state," equality either in size or in percentage of public
powers, duties, and organization of three branches and of local governments). Addition.
ally. the courts have historically validated congresions power to control the formation
lands held among the states would be unrealistic." Acts of admission,
and content of constitutions of states entering the Union. As a result, states differ in the
sovereign and political powers they exercised at admission. See p. 835 supre. The equal
footing doctrine permits each state after admission to choose to exercise the same dr.
75. Under dual federallsm, federal and state governments were viewed as co-equals,
gree of sovereign and political powers 21 every other state. C/. Case V. Toffus. 39 F.
supreme in their Independent spheres. See P. 837 supre. The plurality. by contescing
730, 732 (C.C.D. Dr. 1889) ("true constitutional equality between the states
extends
to
imperium and dominium, returned to a view of separate and Independent spheres of
the right of each to have and enjoy the same measure of local or sell government").
government, which was a touchstone of dual federalism thinking.
71. 339 U.S. 707. 719-20 (1950); see Frost, Judicial Expension of Seaward Boundaries
76. 347 U.S. 272 (1954) (per curlam).
Above Submerged Lands, 16 N.Y.U. INTRA. L REV. 235, 242 (1961) (Texes plurality used
77. See note 47 supre (Court may have believed that there was no equal footing issue
concept of " converse equal footing'").
Involved in post-admission grant); Alabama V. Texas 347 U.S. 272, 281 (1954) (Douglas. J.,
72. 339 U.S. at 717: see id. at 718 (United States responsibilities with respect to "foreign
dissenting) (Court treated equal footing as "frivolous and Insubstantial").
commerce, the waging of war. the making of treatles, defense of the shores, and the like"
78. United States V. Texas. 339 U.S. 707. 720 (1950) (plurality opinion) (quoting Coyle
compel conclusion that United States's supremacy over seabed must be unabridged).
V. Smith, 221 U.S. 559, 566 (1911)).
73. See Corwin, rupre note 69, at 21 ("conperative conception of the federal relation.
79. At most, constitutional principles merely create a rebuttable presumption that
ship"). Cases after 1937 have reflected the cooperative federalist notions. See, C.R., Fry r.
states' compects of admission grant equal seabed rights. See P. 840 intro.
United States. 421 U.S. 542, 547.48 (1975) (intesference with state affairs by application
no. 339 U.S. 707 (1950).
of Economic Stabilization Act to state employees upheld as within rational constemional
81. This right is equal, in the alsence of constitutional of statutory limitations, to
exercise of power): United States V. Dathy, 312 U.S. 100, 124 (1941) (Fair Laiser Standards
that of an Individual disposing of land. See, c.a., South San Joequin Irrigation Dist. V.
Act upheld even though " affected state sovereignty: national government can "resort to
Neumiller, 2 Cal. 2d 485. 489. 42 P.2d 64. 66 (1935): Bjerke V. Arens, 203 Minn. 501. 503.
all means for the exercise of a granted power"). See generally M. REAGAN, THE New
281 N.W. 865, 806 (1938).
FEDERALM 21-23 (1972) (contitutional revolution of 1937 began view of federal and
82. U.S. CONST. art. IV, I 3. d. 2 (property clause): we Alabama V. Texas, 347 U.S. 272.
state cooperation in "running programs" and in "passing statuies," as state powers 100
273 (1954) (per curism) ("The power over the public land thus entrusted to Congress is
honger held to impede or limit national powers). The Court has, nevertheless, recently
without limitations.")
moved to limit notions of comperative devieratism. See National League of Cities V. Umi).
83. States currently vary widely In geographical sire and In the extent to which the
126 U.S. 833 (1976) (Tenth Amendment allirmative limit on commerce power when
federal government owne public lands within their boundaries. See, es., BUREAU or THE
LIBRARY PHOTOCOPY
legislation infringes on Male assercients).
Centus, U.S. DEPT of COMMERCE. STATISTICAL ASSTRACT or THE UNITED STATES 1977, at
74. 339 U.S. at 719.20 (citation oralted).
197. 227 (1977).
838
839
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Puerto Rican Seabed Rights
moreover, reveal a wide variation in the property rights possessed by
terests, responsibilities, and therefore national rights are paramount.""
particular states upon their entry into the Union. Texas and Florida,
The Alabama Court assumed, without so deciding. that seabed rights
for example, came into the Union with generous grants of public lands,
were mere property rights." The failure of the Alabama Court lay in
but most other states have received very limited property grants from
not overturning the holding in the Tidelands Cases that seabed rights
Congress in their compacts of admission."
were interests "so subordinated to political rights as in substance to
Interpreting the statement in Texas that the equal footing doctrine
coalesce and unite in the national sovereign." By upholding the
has a "direct effect on certain property rights,"" specifically on the
federal power to cede submerged lands, the Alabama Court overturned
right to exploit submerged lands, remains a problem. This finding
the reasoning of Texas" that although "dominium and imperium are
can be harmonized with the holding in Alabama v. Texas" only il
normally separable and separate," in some cases "property interests are
Texas is understood to have involved statutory interpretation of the
so subordinated to the rights of sovereignty as to follow sovereignty."*
equal footing clause in the state's act of admission." The act did not
No apparent reason exists to allow the separation of property from
discuss the submerged lands issue, so the Texas plurality faced the
sovereignty in statutes like the Submerged Lands Act, while preventing
question whether the state could retain prior title by implication. The
such a separation in acts of admission. Therefore, the constitutionally
Court plurality held only that the Constitution prevented such 211
based presumption of federal control over the seabed imposed by the
implication, not that Congress could not, if it had so desired. have
equal footing doctrine can be overcome. Puerto Rico need only secure
made an explicit grant of title." The constitutional language supported
Congress's agreement to an express grant in its act of admission.
the plurality's presumption that Texas had no greater property rights
than other states. Such a presumption could have been rebutted by a
III. Seabed Rights as Property Rights
showing of an express provision in the compact of admission that vested
dominion in the incoming state."
The Court has ruled that a grant of three marine leagues to some
The Court in Pollard's Lessee U. Hagan" held that property rights
states does not undermine the constitutional equality of states." The
to the beds of inland waters belong to the states." The Tidelands Cases
question remains whether a congressional grant of seabed rights of 200
reached the opposite result for offshore lands, because "national in.
miles to Puerto Rico on admission to the Union would be an uncon-
stitutional "subtraction in favor of" Puerto Rico "from the national
81. Unlike other states, Texas was alkwed to retain its vacant and unappropriated
sovereignty of the United States." Such a grant would not, however,
lands This retention was permitted in order that the state would be able to pay the
compromise national supremacy," for the right to exploit the seabed,
debts and liabilities It had Incurred as a Republic Joint Resolution for amexing Texas
under both American and international law, is alienable.' Such a
to the United States, 1. REL B, 28th Cong., 21 Sen. 797 (1845): see P. GATES, HISTORY OF
PUBLIC LAND LAW DEVILOPMENT 316 (1968) (st admission, Florkla was granted 62%
Louisiana 38%. and Alaska 28% of public land areas with remainder retained by federal
government).
02. United States V. California, 332 U.S. 19, 30 (1947); see United States V. Texas, 339
as. 339 U.S. at 716 (plurality opinion).
(1950). U.S. 707, 719 (1950) (plurality opinion): United States V. Louisians, 339 U.S. 699, 704
BG. 347 U.S. 272 (1954) (per curlam).
D3. 347 U.S. at 273 (per curiam).
07. See United States V. Texas. 339 U.S. 707. 715 (1950) (plurality opinion) (plurality
held that dominium OVER Tessis seated rested in federal government because ""equal
94. United States V. Texas, 339 U.S. 707. 719 (1950) (plurality opinion).
95. See p. 834 IMPTE.
losting' clause of the Joint Resolution admitting Texas to the Union disposes of
the
contruversy" of control over area).
(harmonizing results of Alabama and Texas).
90. 339 U.S. at 719 (plurality opinion) (RIOTHOTE oralited). But ct. p. 610 supre
AR. See p. 838 supre.
ALL The Texas plurality found that Texas's historical proof nf dominium. while a
throathy of Submerged Lamis Act).
97. Alabama V. Texas, 347 U.S. 272, 273.74 (1954) (per curlam) (uphokling constitu.
Republic, OTTE Its three marine leagues seated was Imufficient IO the presump-
them that such dominium had IRTN relinquished. United States r. Teass, 339 U.S. 707,
im. United States V. Texas, 339 U.S. 707. 719 (1950) (plurality opinion).
717.18 (1950). Subsequently, the Maine Court held that Compress had exercised its "para-
99. To avoid confusion, this discussion will - national "RIPTEMACY" to refer to the
mount national powers by tramferring seated rights Its the states In the Submerged
severeignty of the federal as against the state governments This concept involves federal
Lands Act. United States V. Maine, 420 U.S. 313, 524 (1975). " thus appears that Congress
supremacy in the areas designated by the Constitution. The word "surrelanty" in the
ran distor federal control conferred try the equal footing doctrine over the realord
International sense denotes the plenary powers of individual nations 21 against THIC
another and will be used 21 such throughout this discussion.
bondering any state by an express provision in the compact of admission.
100. See p. 834 rupre; p. 843 infra.
00. 44 U.S. (3 How.) 212 (1845).
91. Id. at 230; see p. 830 IN/TR.
The Commonwealth of Puerio Rim can claim the amereign right to explore and
pkrit Its sealed under International law. The Continental Shell Convention, supre note CE.
840
811
CL NTON LIBRARY PHOTOCOPY
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
grant should be upheld against any equal footing challenge by other
over the sea.¹*¹ Both Congress and executive officials premised the
states or by the Justice Department.
Submerged Lands Act on the separability of national supremacy and
Congress, a court should hold, can alienate seabed rights in any way
property rights over the seabed.' Finally, the separability of property
it chooses. It may, for example, make such an express provision in a
and full sovereignty rights in the high seas was recently evidenced by
compact of admission, because a commingling of sovereignty with
American creation of a 200-mile zone of "exclusive fishery manage-
property rights is no more essential in the 200-mile zone than it is in
ment authority," in which the United States claimed the power to
the smaller zone at issue in Alabama v. Texas. Any other conclusion
regulate one resource of the high seas without asserting sovereignty
would be at odds with principles of American and international law
over the area.100
that have recognized not only the difference between imperium and
The Court in United States v. California ¹* viewed the possibility of
dominium over the seabed, but also the difference between sovereignty
international obligations concerning the seabed as bolstering the neces-
over the sea and sovereignty over the seabed.¹
sity for national control of the area." The international community,
The Truman Proclamation," the first claim by a major coastal
however, has generally followed the American view that sovereign
nation to rights over the continental shelf and its resources, avoided
rights over the high seas are separate from exploitation rights over the
use of the word "sovereignty" and only referred to "jurisdiction and
resources of sea lands.¹¹
control" in order to signify that the United States' claim extended
Article 2 of the Continental Shelf Convention of the 1958 Geneva
only to the right to exploit the resources of the shelf, not to sovereignty
Convention on the Law of the Sea accorded to coastal states the exclu-
sive power to exercise "over the continental shelf sovereign rights for
4. which the United States has ratified, states that "[t]he coastal State exercises over the
the purpose of exploring it and exploiting its natural resources."
continental shelf sovereign rights for the purpose of exploring it and exploiting in
natural resources." id. art 2(1). In the North See Continental Shell Cases, the Interna-
The Informal Composite Negotiating Text of the ongoing law of the
tional Court of Justice held that the right to explore the continental shelf and exploit its
Sea Conference incorporates the same provision of coastal state right
natural resources was Inherent In the coastal State-the rights existed "ipso facto and ab
to explore the shelf." Neither provision in any way prevents 2 coastal
Initio," [1969] I.C.J. 4. 22. One study has concluded that the current United States claim
to the continental shell of the Commonwealth departs from prevailing International law
state from consenting to alienate these rights. The Composite Text
and practice under which overseas departments and associated states, without representa-
live totes in metropolitan governments, exercise control over the coastal realxed. T.
107. Exec. Proclamation No. 2067. 3 C.F.R. 67. 68 (1945): id. ("The character as high
FRANCE, CONTROL or SEA RESOURCES BY SEMI-AUTONOMOUS STATES 27-29 (1978).
seas of the waters above the continental shell and the right to their free and unimpeded
A coastal State's exclusive right to exploit the seabed does not preclude it from
navigation are in no way thus affected.")
transferring its right, as long " the consent Is express. Continental Shell Convention, supre
108. See, e.g., Hearings on Submerged Lands Act, supre note 100. at 512-14 (Douglas
note 4. art. 2(2). Therefore, under International law, Puerto Rico and the United States
McKay. Secretary of Interior) (United States controls submerged lands, regardless of
can agree in a compact of admission who will receive the benefits of exploiting the sex.
property rights): $. REP. No. 133, 83d Cong., In Sen. 5-6, reprinted in [1953) U.S. Coor
bed. See Submerged Lands Act: Hearings on S.J. Res. 13, 3. 291, 3. 107, S. 107 Amend., S.J.
CONC. & An. NEWS 1474, 1479 (Submerged Lands Act grants property rights, not con-
Res. 18 Before the Comm. on Interior and Insular Affairs, 83d Cong., lst Sem. 1066 (1953)
stitutional rights). But see PP. 646-17 infre (federal government by Invoking eminent
(Jack Tate, Deputy Legal Adviser, Dep't of State) (international community unconcerned
domain can recapture any seabed grants).
about way United States divides its rights over seabed with states) [hereinafter cited as
109. Fishery Conservation and Management Act of 1976, Pub. L No. 94-265, " 101.
Hearings on Submerged Lands Act).
102. 90 Stat. 336 (codified at 16 U.S.C. H 1811-1012 (1976)).
101. In Alabama V. Texas, 347 U.S. 272 (1954) (per curlam) states challenged a dis-
110. 333 U.S. 19 (1947).
proportionate grant of seabed rights to other states. See P. 833 supre.
111. 11. it 33.
102. The Justice Department brought the submerged lands cries challenging the right
112. See 4 M. WRITEMAN, DICEST or INTERNATIONAL LAW 789-882 (1965) (development
of Cull states to the three marine leagues limit. See United States V. Florida, 303 U.S. 121
and acceptance of continental shell doctrine). Some nations continue to claim that the shell
(1960); United States V. Louisiana, 363 U.S. I (1960). The executive need not agree with
Is inseparable from the high KII and therefore not subject to appropriation. See 2 Third
a congressional grant of seabed rights to a state and could therefore seek to overturn a
U.N. Conference on the Law of the Sea (Caracas, Venez) (18th mis.) 152. U.N. SALES No.
congressional grant in a compact of admission. C/. Veto of Bill Concerning Title to
E. 775. v.4 (July 29. 1974) (Mr. Upadhysys. Nepal delegate). Other nations have claimed
Offshore Lands, 1952-1953 Pus. PAPERS 379 (Truman veto of first Submerged Lands Act).
sivereignty over both the shelf and the high *** See 1 1. LAT. R. CHURCHILL & M.
103. 347 U.S. 272 (1950) (per curiam).
NORDQUIST, NEW DIRECTIONS IN THE LAW OF THE SEA 15-16 (1973) (Brazillan claim of com-
104. See Daniel, Sovereignty and Ownership in the Marginal See, , BATIOR L REV.
piete sovereignty).
243, 248.56 (1931) (distinction between ownership of seated and sovereignty over waters,
113. Continental Shelf Convention, IN/ITE note 4. art. 2(1): MI Id. art. I (right to exploit
and dual rights in marginal sea).
shell to limits of exploitability): id. art. 3 ("rights of the coastal State over the continental
105. Exce. Proclamation No. 2667. , C.F.R. 67. 68 (1945).
LIBRARY PHOTOCOPY
shell do not affect the legal status of the superjacent waters 24 high real").
106. See A. Sinjela, Land-Locked States and the Contemporary Ocean Regime 303.05
114. Composite Text, supre note 4, arts. 76, 77(1) (cosstal state right to exploit seabed
(1978) (unpublished J.S.D. disertation, Yale Law School) (on file with Yale law Journel)
up to distance of 200 nautical miles).
(prior 10 1915, few claims to continental shell made and those made largely concerned
115. See id. art. 77(2) (rights to shell exclusive unless exploration consented to by
with fishing conservation).
coastal state): Continental Shelf Convention, supre note 4. art. 2(2) (same).
842
843
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Puerto Rican Seabed Rights
also proposes the creation of a 200-mile economic zone''' under which
coastal states have absolute rights "for the purpose of exploring and
A. Considerations for a Specific Grant
exploiting, conserving and managing the natural resources, whether
Puerm Rico may seek to include in any compact of admission
living or non-living, of the sea-bed and subsoil and the superjacent
language granting the island the right to explore and exploit the
waters."!!! In short, the right to exploit the seabed, properly defined,
natural resources of the seabed to the extent recognized by the inter-
is simply a property right not necessarily commingled with national
national community. In order to ensure that the grant of sealied
supremacy. Thus a grant to Puerto Rico of seabed rights at admission
rights to Puerto Rico will be sufficiently specific, the language used in
would not be a "subtraction in [its] favor from the national sover.
other grants of seabed rights should be replicated: 121 "The term 'nat-
eignty of the United States,"
ural resources' includes, without limiting the generality thereof, oil,
gas, and all other minerals," including sand, gravel or coral,123 and
all other living organisms sedentary to the seabed.' Puerto Rico's
IV. Seabed Grant Proposal and Its Limitations
demand hould seek to encompass all rights recognized by the United
The equal footing doctrine's rebuttable presumption of national
States in international agreements." The grant should also follow the
property rights to the seabed makes the right to exploit scalied re.
Submerged Lands Act in affirming the imperium rights of the United
sources a negotiable condition in Puerto Rico's bargaining for ad.
States.
mission. Therefore Puerto Rico should seck a specific grant of sea-
bed rights in a compact of admission. The federal government can,
120. Current International law favors the recognition of sovereign rights Over 200
however, constitutionally regulate or terminate the rights to exploit
miles of sealed. See Componite Text. supre note 4. area. 56, 57. At minimum, Puerto Rico
could seek the right to explore Its arabed to the limits of expholiability, see note 5 supre,
the seabed secured in a compact. The main protection available for
a right recognized in the Continental Shell Convention, supre note 4. art. 1, which the
the island against a "taking" of its seabed rights is an explicit calcula-
United States has ratified. Ratifications and Accessions to the Conventions, U.N. Due. ST.
Lec./3 Rev. 1 (Apr. 12. 1961).
tion of just compensation in its compact of admission.
121. 11 Is beyond the scope of this Note to propose the exact language of a sealied
grant. Such language will require extensive negotiations because many problems of def.
Inition and jurisdiction exist. C/. Note. Jurisdiction Over the Seabed: Persistent Federal-
116. The economic sone is an area "200 nautical miles from the baselines from which
State Conflicts, 12 Use. L ANN. 291, 297.90 (1976) (establishment of baselines from which
the breadth of the territorial sea is measured." Composite Text, supre note 4. are. 57. In
to measure state control, shifting of coastlines, and pollution and environmental controls
the economic rome the coastal state has aimolute rights of exploitation. see note 117
are haves currently in dispute between federal and state governments). In addition, it
intre, and jurisdiction for purposes of research, environmental preservation, and com.
the United States were 10 sign an international agreement such as the Composite Text,
struction, see Composite Text IMPTE note 4, art. 50(1)(b).
supre note 4, before the island's bid for statehood, the language of a sea bed grant woukl
117. Composite Text, supre note 4, art. 5G(1)(a). Control over the economic sone and
have to account for any International obligations the federal government had Incurred.
control over the continental shelf involve a concomitant 200-mile limit. See id. arts, 67. 76.
122. Submerged Lands Act of 1953, A 2, 43 U.S.C. 5 1901(e) (1970).
Although sovereign rights for exploitation purposes are absolute in the shell, see id. art.
123. In the Conveyance of Submerged Lands to Territories Act of 1974, Pub. L No.
77(2). cuastal states nevertheless have an affirmative duty under certain conditions to give
93-435, I 1. as Stat. 1210 (current version at 48 U.S.C. 4 1705(a) (Supp. V 1975)). the United
access to other States In the economic rone, see, e.g., id. art. 69 (land-locked state's right
States gave Cuam, the Virgin Islands. and American Samos title to their marginal sea.
to participate in exploitation of economic rones of adjuining coastal states).
The grant excepted oil, gas. and other minerals from the grant but Included "coral, and
118. United States V. Texas, 339 U.S. 707. 719 (1950) (plurality opinion).
and grawd." The Inclusion of both phrases in the proposed grant would leave no doubt
119. Fuerto Rico's bargaining position woukl be strengthened if it could establish
as to the meaning of Puerto Rich's demands for "mineral resources"
ownership of the seabed as a commonwealth. See notes 5 & 100 supre (controversy over
124. Composite Text, IMPRE note 4. art. 77(4) (natural resources of shell Include "living
ownership of Island's scabed; Island's right to continental shell under International law).
organisms belonging to sedentary specks").
Congress's grant to the states In the Submerged Lands Act of 1953, Pub. L No. 83.31. 5 3,
125. The rights could Include those sgreed mion In the Composite Text, supre note
PHOTOCOPY
67 Stat. 30 (codified at 43 U.S.C. I 1311(a) (1970)). was motivated by a desire to restore
4. if it should be ratified (If in the Continental Shell Convention, supre note 4. which
historic title to the states. See note 38 IMPTE. Histork title Is not, however, necessary to
has already been raillied by the United States, see note 120 supre.
Poerto Rico's demands: constressional power to cele federal lands is "plenary" and
126. Submerged Lands Act of 1953, A 6, 43 U.S.C. I 1314(a) (1970):
"without limitation." Alabama V. Texas, 347 U.S. 272. 273.74 (1954) (per curism). In
[T]he United States retains all is navigational servitude and rights in and powers of
construing the Submerged Lands Act, the Court relied on historic title to the sealized only
regulation and control of mid lands and navigable waters for the constitutional pur.
In searching for congressional Intent to grant submerged lands to the state at admission.
junes of commetce, navigation, national defense, and International affairs, all of
See note 48 supre. Federal control of the Island's seated resources while It remains a
which shall be paramount to, but shall not be deemed to Include, proprietary rights
commonwealth would not bar the island from claiming the resources at the time It seeks
of ownership, or the rights of management, administration, leasing. use, and develop-
ment of the lands and national resources
vericl In
the
respective
States,
admission.
Congress viewed this section as superfluous, but included it in the Act to safeguard against
844
845
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Puerto Rican Seabed Rights
B. The Limits of 4 Grant to Exploit Seabed Resources
Puerto Rican sealied or regulates it so as to constitute a "taking.""
Puerto Rico should be reimbursed. Although environmental or naviga-
The seabed is directly related to federal exercise of powers over
tional limitations are likely to be viewed as regulation and therefore
national defense, the conduct of foreign affairs, world commerce, and
noncompensable, American alienation of seabed rights by treaty
navigation. In order to effect these constitutional powers, Congress
should be treated as a taking."
is empowered both to enact laws regulating the seabed and to take
Even though there must be compensation for any taking. Puerto
state submerged lands. Congress can, therefore, subsequently reg.
Rico's property interest in the seabed might be undervalued. To en-
ulate or take back in exercise of its constitutional powers any right that
force the constitutional mandate of just compensation, courts rely on
it might grant to Puerto Rico in its compact of admission.
"the concept of market value: the owner is entitled to the fair market
Such regulation or taking after admission is highly probable. Federal
value of the property at the time of the taking." The "highest and
energy and environmental policies have recently led Congress to regu-
most profitable use for which the property is adaptable and needed,
late seabed mining." Treaties involving the seabed will likely limit
or is likely to be needed in the near future" must be considered in
exploitation by guaranteeing freedom of navigation and cable place.
determining the fair market value." Future use must be within 1
ment."
reasonable time," based on a known and provable market," and
The one safeguard that would be available to Puerto Rico if Con-
exploitable without substantial expenditure of capital. An owner,
gress were to take back seabed rights granted in a compact of admission
such as Puerto Rico, would be compensated for the "highest and most
is that provided by the Fifth Amendment: any taking by the federal
profitable use" to which it put its seabed at the time of taking. The
government to execute its constitutional powers must include just
compensation." If the federal government acquires ownership of the
133. Although public regulation can reduce market value of private land without
compensation see, es. Village of Enclid V. Ambier Realty Co., 272 U.S. 365 (1926) (up-
holding roning ordinance as within state's police power). on owner must be compensated
the national sovereignty concerns expresed in the Tidelands Cases. See Hearings on Sub-
If deprived of all reasonable economic use for the property regulated. Ht Costonia, "Fair"
merged Lands Act. supre note 100, at 1368 (Sen. Jackson) ("Tr]he constitutional provision
Compensation and the Accommodation Power: Antidates for the Taking Impasse in Land
is purely surplus anyway. If we have exclusive rights under the Constitution, there is
Use Controversies, 75 COLUM. L Rev. 1021. 1051 (1975) (under reasonable beneficial use
nothing we can do to change IL')
test. landowner allowed reasonable economic return on property). See generally C. BEACER,
127. The relation of the seabed to the exercise of these Important federal powers is
LAND OWNERSHIP AND Use 630-31 (2d ed. 1975) (four proposals commonly used to reconcile
evidenced by the difficulties that concerns with military defense, foreign affairs, com-
"pulice power vs. taking").
merce. and navigation created In developing a comistent United States policy on the law
134. See United States V. 422.978 Square Feet of Land, 445 F2d 1180, 1184 n.7 (Ith
of the sea. See Hollick, Bureaucrets at Sea. in NEW Eas OF OCEAN POLITICS 1.2 (A.
Cir. 1971) (history of Supreme Court cases holding regulation for navigational purposes
Hollick & R. Orgood eds. 1974) (law of sea encompasies complex array of issues that
noncompensable): cl. Dunham, A Legal end Economic Basis for City Planning. 58 COLUM.
resulted In shifting American policies).
L REV. 650, 006-67 (1958) (regulation to prevent public harm within police power and
128. See, can United States V. Rands, 389 U.S. 121, 123 (1967) ("power to regulate
noncompensable).
navigation confers upon the United States a 'dominant servitude" that empowers it to
135. C/. United States V. 50 Fout Right of Way or Servitude, In. Over and Across
take submerged lands without compensation); United States V. Virginia Elec. & Power Co.,
Certain Land, 337 F.2d 950, 960 (3d Cir. 1964) (taking of land for pipeline to aid naviga.
365 U.S. 624, 627-28 (1961) (similar).
tion noncompensable; compensable If taken kg any other reasons).
129. See, is., Oklahoma ex rel. Phillips V. Cuy F. Atkinson Co., 313 U.S. 508, 534
130. United States V. Reynolds, 397 U.S. 14. 16 (1970) (footnote omitted); see Danforth
(1911) (Congress empowered to take state's submerged lands In exercise of commerce
V. United States, 308 U.S. 271. 283 (1939) (Just compensation means value at time of
puwer): California V. United States. 395 F2d 201, 268 (9th Clt. 1908) (Unlted States can
taking).
conderon state's submerged lands but must pay compensation; lands not valueless because
137. United States V. 1,291.83 Acres of Land, 411 F2d 1081, 1084 (6th Cir. 1900): see
submerged and unused).
Olson V. United States, 292 U.S. 246, 255 (1034) ("highest and most profitable use" test).
130. See 43 U.S.C.A. I 1348 (West Supp. 1978) (safety regulations for exploitation of
138. See note 137 supre (citing cases).
outer continental shelf).
139. United States V. 1,291.83 Actes of Land, 411 F.2J 1081. 1081 (6th Cir. 1909); Mills
131. See Composite Text. IMPTE note 4. are 58 (freedom of navigation in economic
V. United States. 363 F.2d 78. II (8th Cir. 1900). Evidence of minerals may be and In
zone guaranteed by constal states): id. art. 79 (right to lay submarine cables and pipelines
determining the market value of land, but future demand for the mineral must have
on continental shelf given to all signatories).
some objective support. "Mere physical adaptability NI a use does met establish a
132. U.S. COMIT. amend. V ("nor shall private property be taken for public use, with.
out just compensation"). Although It need not compensate states for submerged lands
omitted). market." United States V. Whitehurst, 337 F.2d 765, 771-72 (4th Clr. 1904) (footinate
taken for the purpose of regulating navigation, see note 128 supre, the federal g
140. United States V. 1291.83 Acres of Land, 411 FAI 1081. 1084 (Th Cir. 1909): United
need must provide compensation for the condemnation of state property for any other
States V. 2,035.04 Acres of Land, 330 F.M G10, 648 (The Cir. 1904). The mere existence of
public purpose, See, c.g., United States V. Carmack, 329 U.S. 230. 242 (1946): California V.
mineral deposits is not sufficient: the minerals must le exploitable. See Mills V. United
United States, 395 F2d 261, 263.64, 264 n5 (9th Cir. 1968).
States, 303 F.2d 78. 81 (Bth Cir. 1906).
LINTON LIBRARY PHOTOCOPY
846
847
The Yale Law Journal
Vol. 88: 825, 1979
Puerto Rican Seabed Rights
minerals of the submerged land would be treated as one element af.
Although it requires speculation about future markets, technology.
fecting the market value of the lands taken, but would not be
and return on investment, the last method is well-known in the law.141
separately valued. Puerto Rico would not be compensated for the
The valuation method is irrelevant unless a taking occurs; but if sea.
quantity of minerals in the lands or for any unknown minerals the
bed rights are taken, then some speculation is preferable to the al.
lands contained."
ternative of noncompensation for potential minerals in the seabed.
Puerto Rico and the United States could agree that compensation
be provided for those losses that COUT'S normally find noncompensable,
Conclusion
and could provide at admission : Cormula for calculating the com-
pensation. The federal right to ent domain cannot be abridged
The American experience with colonialism in the early half of this
by contract,1 but the "Fifth Amountment does not prohibit land.
century has left the United States with responsibility for several
owners and the Government from agreeing between themselves as to
small, economically poor dependencies.¹⁴ Some of these, like Puerto
what is just compensation for property taken. Nor
does
it
bar
them
Rico, may seek statehood unless they are accorded a greater measure
from embodying that agreement in contract.
"144
of self-government. Accommodations between the federal govern.
Various methods of adjusting 1. constitutional measure of just
ment and an incoming state such as Puerto Rico, involving, inter alia,
compensation could be devised. 30- example, a simple reasonable
rights to the seabed, could help the new state to overcome its economic
return above fair market value be agreed on to compensate for
problems. This Note has shown that for Puerto Rico the only bar to
any unknown uses of the lands at the time of the taking. Second, the
the creation of such rights is political, not legal. The question is
quantity and quality of minerals " the lands could be estimated at
whether the present fifty states would be willing to grant to Puerto
the time of taking and then multip by a fixed price per unit agreed
Rico a right that states have not obtained or preserved for themselves.
on in the compact of admission. court could be directed in the
compact of admission to determine the future income stream by this
147. See, es. State Highway Comm'n V. Nunes, 233 Or. 547. 556, 379 P.2d 379. 584
(1963) (stating that frequently Impossible as practical matter not to USE capitalization
multiplication method. then subtract expected cost of production-
method in valuation); In " Atlas Pipeline Corp., 9 S.E.C. 416, 421-40 (1941) (Chapter x
in essence, to capitalize profits.
Rico
could
demand
that
this
of Bankruptcy Act requires courts to judge whether reurganization plans are "fair and
equitable, and fessible": judgment necessitates projections of earnings, remaining economic
capitalized estimate serve as the measure of compensation.
life, and capitalization rates for corporations): I.R.C. $ 167 (projections must be made of
useful life and obsolescence of assets In computing depreciation).
141. Courts have not permitted separate valuation of the quantity and quality of
145. See J. PRATT, AMERICA'S COLONIAL EXPERIMENT 56 (1950) (Spanish American War
minerals, multiplied by 1 fixed price per unit because such valuation is speculative and
"opened the door of a colonial career to the United States"): Wondward, Empire Beyond
uncertain. See, is. Georgia Ksolin Co. V. United States, 214 F.20 284. 286 (5th Cir. 1954):
the Seas, in THE NATIONAL EXPERIENCE 518-37 U. Blure 2d cul. 1968) (era of manifest
United States V. Land in Dry Bed, 143 F. Supp. 314. 317-18 (S.D. Cal. 1956): 4 J. SACRMAN,
destiny. imperialistic stirrings, and white man's burden).
NICHOLS' THE LAW OF EMINENT DOMAIN I 13.22 (P. Rohan 3d rev. ed. 1977) (valuation of
149. See note 148 supre (citing sources): Letter from Ruth C. Van Cleve, Director,
lands containing mineral resources).
Office of Territorial Affairs, Dep't of the Interior (Apr. 4. 1978) (on file with Yale Law
142. See note 141 supre (citing cases): Mills T. United States, 363 F.2d 78. BI (8th Cir.
Journel) (compiling per capita Income of American territories): Office of the Common-
1966) (minerals In land must be known and exploitable).
wealth of Puerto Rico, Basic Industrial Facts on Puerto Rico-1975 (1976) (reporting
143. See Georgia V. Chattenoogs, 264 U.S. 172. 480 (1924) ("(E)minent domain is an
Island's per capits Income).
attribute of sovereignty It cannot he supportered. and It attempted to be contracted
150. Some sentiment for statchood in the future has, for example, also been reported
away. II may be resumed at will." (citations mitted): Contributors to Pa. Hosp. V.
In the Virgin Islands. See Macridis, Political Attitudes in the Virgin Islands. in VIRGIN
Philadelphia, 243 U.S. 20. 23 (1917) (contra estraining eminent domain "Inellicacious
ISLAND 193. 202 0. Bough & R. Macridis eds 1970).
for want of power").
It is conceivable that Puerto Rico would settle for less than statehood, If the arrange.
144. Albrecht V. United States, 329 U.S. ***. 303 (1947) (citation omitted): KE United
ment conferred greater autonomy than that provided by the current commonwealth
States V. Fuller, 409 U.S. 488, 494 (1973) may provide that particular
status. For example, in 1975, after two years of deliberations, the Ad Hoc Advisory Group
elements of value or particular rights be pm d for even though in the absence of such
on Poerto Rico, a committee composed of presidential appointees and delegates choices
provision the Constitution would not require payment.")
by the Governor of Puerto Rico, made its recommendations for greater Island control
145. time possibility is to agree to use the fair market value of the minerals at the
over its economic programs and International affairs. See REPORT OF THE As Hoc Ae-
time of the taking as the fixed price. of - this method can be used only when
VISORY GROUP ON PUERTO Rico, COMPACT of PERMANENT UNION BETWEEN PUERTO Rico
quality and quantity can accurately be esti
AND THE UNITED STATES 87.100 (1975). Presklent Ford's New Year's Eve statchood proposal,
146. One court has accepted the multing MI or capitalization of profits method in
however, was made in lieu of an endorsement of the proposed compact. Text of Ford
an eminent domain context. See State His' WHA Comm'n V. Nunes, 233 Or. 547. 559. 379
Puerio Rice Statement, N.Y. Times. Jan. I. 1977. at 5, col. 1. The President apparently
P.2d 570. 585 (1963). See generally Note, I's 7n in Eminent Domain Cases-Use of the
found that statehood within the American system was more attractive than a more
Multiplication Method in Valuing Mineral Amounts. 30 Ats. L REV. 753 (1972) (arguing
autonomous form of commonwealth status.
for this method).
INTON LIBRARY PHOTOCOPY
848
849
LINTON LIBRARY PHOTOCOPY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
CASTLE ROCK ENTERTAINMENT,
Plaintiff,
-against-
95 Civ. 0775 (SS)
CAROL PUBLISHING GROUP, INC., and
BETH B. GOLUB,
Defendants.
X
Appearances:
DAVIS, SCOTT, WEBER &
EDWARDS, P.C.
100 Park Avenue
New York, New York 10017
212/685-8000
David Dunn, Esq.
Emily Granrud, Esq.
Attorneys for Plaintiff
BELDOCK, LEVINE &
HOFFMAN, LLP
99 Park Avenue
New York, New York 10016
212/490-0400
..
Melvin L. Wulf, Esq.
Daniel M. Krummer, Esq.
Attorneys for Defendant Carol
Publishing Group, Inc.
LINTON LIBRARY PHOTOCOPY
OPINION AND ORDER
Plaintiff brings this action alleging copyright infringement and unfair
competition flowing from defendants' publication of The Seinfeld Aptitude Test ("SAT"),
a book of trivia concerning Seinfeld, a popular television comedy program "about
absolutely nothing." (Golub Dep. Ex. 3, cover). Though this seemingly invites the
conclusion that this opinion is not about anything, plaintiff's claims raise a variety of
difficult and interesting questions concerning the proper scope of copyright protection as
it extends to popular television programming. For the reasons to be discussed, I grant
plaintiff's motion for summary judgment on the issue of copyright infringement, finding
that defendants have appropriated original material from Seinfeld without making "fair
use" of the program. I deny plaintiff's motion for summary judgment with respect to its
claim of unfair competition, however, because there are material issues in dispute
concerning this claim.
BACKGROUND
Plaintiff, Castle Rock Entertainment ("Castle Rock"), produced and now
owns the copyrights to each episode of the highly successful television series Seinfeld, a
comedy program featuring four characters confronting life's "daily, petty annoyances."
(Shostak Dep. Ex. 3).' Defendants are the author, Beth Golub, and publisher, Carol
1
The parties have provided deposition excerpts as attachments to the
affidavits submitted by David Dunn and Melvin Wulf in further support of or opposition
to the motion for summary judgment.
2
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Publishing Group, Inc. ("Carol"), of SAT, a book of trivia questions "based on the
Seinfeld show." (Golub Dep. at 95). According to a view shared by the book's author,
Beth Golub, and her editor at Carol Publishing, SAT represents a "natural outgrowth" of
Seinfeld. (Golub Dep. Ex. 5 at 000606; Shostak Dep. Ex. 3). Indeed, "[SAT], like the
Seinfeld show, is devoted to the trifling, picayune and petty annoyances encountered by
the show's characters on a daily basis." (Golub Dep. Ex. 5 at 00606). In other words,
defendants designed SAT to "capture Seinfeld's flavor in quiz book fashion." (Golub
Dep. Ex. 5 at 000606).
In a proposal she submitted to Carol Publishing, Golub explained that she
gathered the information tested in SAT by "watching and reviewing" Seinfeld episodes.
(Golub Dep. Ex. 5 at 000606). During her deposition, Golub provided a more detailed
account of her methods: she took notes from programs at the time they were aired on
television, and she subsequently reviewed videotapes of several of the episodes, some of
which she recorded and others that friends provided. (Golub Dep. at 20-21). Plaintiff
reasons that Ms. Golub's proposal -- with its "watching and reviewing" language -- left
Carol Publishing with constructive knowledge of Golub's practice of videotaping. Carol
Publishing's representatives have denied, however, any actual knowledge that Golub
reviewed Seinfeld episodes on tape. (Schragis Dep. at 91; Shostak Dep. at 62-64).
By defendant's count, SAT includes 643 trivia questions about the events
and characters depicted in the Seinfeld show. The questions are presented in three forms:
211 are multiple choice; 93 are matching; and the remainder are simple questions. The
3
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book draws from 84 of the 86 Seinfeld episodes that had been broadcast as of the time
that SAT was published in October 1994. The number of questions devoted to each
episode ranges from a low of one to a high of 20. Every answer in the book arises from
an episode of the show, though defendant Golub created incorrect answers as choices to
the multiple choice questions. (Golub Dep. at 36, 94-95). Actual dialogue from the
program is quoted in 41 of the book's questions. Though the parties cannot agree on the
percentage of the show's overall dialogue excerpted in SAT, they offer figures - based
upon the script most often referenced in the book, "The Cigar Store Indian" -- ranging
from a low of approximately 3.6 % (defendants' calculation) to a high of approximately
5.6 % (plaintiff's calculation).
The name "Seinfeld" appears on the front and back covers of SAT in larger
print than any other word, in a typeface which, according to plaintiff, mimics the
registered Seinfeld logo. (Golub Dep. Ex. 3). During editing, defendants increased the
size of the name "Seinfeld" appearing on the back cover. (Shostak Dep. at 107-08). SAT
also includes, both on its front cover and in several of its pages, pictures of the principal
actors who appear in the Seinfeld series. On the back cover, as defendants note, a
disclaimer appears indicating that SAT "has not been approved or licensed by any entity
involved in creating or producing Seinfeld." (Golub Ex. 3, back cover). This language is
in smaller print than is any other text in the book, but it is surrounded by a border and
printed on a shaded background. Defendants contend that their decision to reduce the
print size of this disclaimer, while at the same time surrounding it by a border and placing
4
LINTON LIBRARY PHOTOCOPY
it upon a shaded background, represented an effort to highlight the disclaimer. Plaintiff
contends that this decision was a blatant effort by defendants to reduce the prominence of
the only indication provided that SAT was produced without plaintiff's cooperation or
approval.
Because of its concern with preserving the show's reputation for quality,
plaintiff has been highly selective in marketing products associated with Seinfeld.
(Wittenberg Aff. IT's 14, 15). Plaintiff has rejected numerous proposals from publishers
seeking approval for a variety of projects related to the show. (Wittenberg Aff. 1 23).
Plaintiff has licensed the production of a single Seinfeld book, The Entertainment Weekly
Seinfeld Companion, and only after threatening litigation in connection with the book's
initial unauthorized release. (Wittenberg Aff. 1 25). Also, plaintiff has licensed the
production of a CD-ROM product which includes discussions of Seinfeld episodes, and
which might ultimately include a trivia bank. Plaintiff now alleges that it plans to pursue
a more aggressive marketing strategy in the future, a strategy which will include the
"publication of books related to Seinfeld." (Wittenberg Aff. 1 21). The creative team
responsible for Seinfeld would have to be assured creative control over any such projects,
however. (Id. at 1 23; Wittenberg Dep. at 52). Because that creative team, consisting of
Jerry Seinfeld and his partner, Larry David, does not now wish to be distracted from the
program, it appears that there has been little, if any, progress in developing such books or
products. (Id.).
There is no evidence that the publication of SAT has diminished interest in
5
CLINTON LIBRARY PHOTOCOPY
Seinfeld, or that the profitability of the Seinfeld logo "has been reduced in any way at all."
(Wittenberg Dep. at 110). In fact, the show's audience has grown since SAT was first
published. (Id. at 109). The television network that broadcasts episodes of Seinfeld has
distributed copies of SAT in connection with promotions for the program. (Aronson Dep.
at 26). Even the executive producer of Seinfeld, George Shapiro, benignly characterizes
SAT as "a fun little book." (Shapiro Dep. at 33). Nevertheless, it is a book which
plaintiff believes "free-rides" on the success of Seinfeld, and plaintiff therefore seeks to
bar its continued publication.
Plaintiff now moves for summary judgment on its claims of copyright
infringement and unfair competition, arguing that SAT is either an unauthorized
reproduction, or derivative version, of Seinfeld.² Defendants cross-move for summary
judgment, claiming that SAT is not substantially similar to Seinfeld, and that, in any
event, the book is protected as "fair use" under the Copyright Act. For the reasons that
follow, the Court finds for plaintiff with respect to its claims under the Copyright Act, but
is unable to grant either party summary judgment on plaintiff's common law claim of
unfair competition.
2
Plaintiff is not now seeking judgment on its claim that defendants violated
section 43(a) of the Lanham Act, 15 U.S.C. 1125(a) (1988).
6
CLINTON LIBRARY PHOTOCOPY
DISCUSSION
Summary judgment is required when "there is no genuine issue as to any
material
fact and the moving party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c). "The moving party has the initial burden of 'informing the district court of
the basis for its motion' and identifying the matter 'it believes demonstrate[s] the absence
of a genuine issue of material fact.'' Liebovitz V. Paramount Pictures Corp., 1996 WL
733015, # 3 (S.D.N.Y. Dec. 18, 1996) (quoting Celotex Corp. V. Catrett, 477 U.S. 317,
323 (1986)). Once the movant satisfies its initial burden, the nonmoving party must
identify "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P.
56(e). In assessing the parties' competing claims, the Court must resolve any factual
ambiguities in favor of the nonmovant. See McNeil V. Aguilos, 831 F. Supp. 1079, 1082
(S.D.N.Y. 1993). It is within this framework that the Court must finally determine
"whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law." Anderson V.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
I.
Prima Facie Copyright Liability
The Copyright Act grants a copyright holder a variety of rights, including
the exclusive rights to "reproduce the copyrighted work" and "to prepare derivative works
based upon the copyrighted work." 17 U.S.C. § 106. To succeed on a claim that these
rights have been infringed, a plaintiff must demonstrate two elements: "(1) ownership of a
7
CLINTON LIBRARY PHOTOCOPY
valid copyright, and (2) copying of constituent elements of the work that are original."
Feist Publications, Inc. V. Rural Telephone Serv., Inc., 499 U.S. 340, 361 (1991)
(citations omitted); see also Arica Institute, Inc. V. Palmer, 970 F.2d 1067, 1072 (2d Cir.
1992). Defendants do not dispute that plaintiff is the owner of a valid copyright in the
individual Seinfeld episodes and scripts. The question of infringement therefore turns
upon whether SAT is an impermissible copy of Seinfeld.
A.
Copying
"[A] plaintiff must first show that his [or her] work was actually
copied [and] then must show that the copying amounts to an 'improper' or 'unlawful'
appropriation." Laureyssens V. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 1992)
(citations omitted); see also 3 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 13.01[B], at 13-19 (1996) ("First, there is the factual question whether the
defendant, in creating its work, used the plaintiff's material as a model, template, or even
inspiration."). Ordinarily, there is no direct evidence of actual copying, and the Court is
called upon to "infer [such copying] upon a showing that defendant had access to the
copyrighted work, and that the allegedly infringing material bears a substantial similarity
to the copyrightable elements of plaintiff's work." Arica, 970 F.2d at 1072; see also Twin
Peaks Productions, Inc. V. Publications Int'l, Ltd., 996 F.2d 1366, 1372 (2d Cir. 1993)
("The plaintiff may establish copying either by direct evidence or by showing that the
defendant had access to the plaintiff's work and that the two works are substantially
8
LINTON LIBRARY PHOTOCOPY
similar."). In this case, this inquiry is not necessary in order for the Court to make its
initial determination that SAT in fact copied from Seinfeld.
Defendants make "no secret" of the fact that SAT is based upon Seinfeld.
(Golub Dep. at 95). SAT is expressly devoted to testing elements from the program.
Every correct answer to each of the 643 questions posed in the book reflects information
derived directly from Seinfeld episodes. (Id. at 36). Moreover, many of the questions
posed in SAT, upwards of forty, actually quote dialogue, verbatim, from the show. Such
statistics should come as no surprise; a trivia book about Seinfeld would make little sense
if it tested matters not included in the program, or if it attributed dialogue to characters
which they never spoke. Simply put, there can be no real dispute that, as a factual matter,
SAT copies information and dialogue from Seinfeld.³
The determination that SAT serves as is its own direct evidence of copying
does not remove substantial similarity from the infringement equation. See Twin Peaks,
996 F.2d 1366. In Twin Peaks, the defendant published a book which was primarily
devoted to digesting episodes of another popular television program, Twin Peaks.
Addressing the concept of "fragmented literal similarity," the Court determined that 89
3
Plaintiff argues that defendant Golub's practice of videotaping episodes of
Seinfeld as an intermediate step in the creation of SAT constitutes prima facie
infringement regardless of the content of the show ultimately reflected in the book.
(Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment at
5-7). Because the Court finds that SAT copies Seinfeld, it is not necessary to reach this
question. In any event, while defendant Golub certainly copied Seinfeld by taping the
program, the record reveals no evidence requiring the conclusion that defendant Carol
was involved in, or had constructive knowledge of, Golub's practice.
9
LINTON LIBRARY PHOTOCOPY
lines of dialogue copied from the show rendered the book "substantially similar" to the
program. Id. at 1372. Because the book digested entire episodes, the Court found that
there was "comprehensive nonliteral similarity" between the two works, as well. Id. Of
course, the Second Circuit could have found copying, as a factual matter, without
searching for substantial similarity; with 89 lines of dialogue quoted in the allegedly
infringing book, it was inescapable that some copying had taken place. It is apparent,
then, that the Second Circuit applied a substantial similarity test devoted to finding more
than mere copying; it applied a test meant to determine whether the copying which had
taken place was significant as a matter of law.
"The presence of a 'substantial similarity' requirement in both prongs of the
analysis -- actual copying and whether the copying constitutes an improper appropriation
-- creates the potential for unnecessary confusion, especially because a plaintiff need not
prove substantial similarity in every case in order to prove actual copying." Laureyssens,
964 F.2d at 140; see also 3 Nimmer § 13.01[B], at 13-11 to 13-12 (distinguishing
probative similarity from substantial similarity). Where there is no direct evidence of
copying, as a factual matter, a substantial similarity between the two works creates an
inference of such copying. Where there are sufficient similarities to permit such an
inference, or where there is direct evidence of actual copying, the question becomes
whether there is substantial similarity as a matter of law. At this stage, substantial ,
similarity becomes a function of whether defendant copied "elements of the work that
were original." Feist, 499 U.S. at 361; Laureyssens, 964 F.2d at 140 (upon finding direct
10
LINTON LIBRARY PHOTOCOPY
proof of actual copying, Court's "central concern" became whether there was "unlawful
appropriation of protected material."). For those reasons already explained, the first of
these inquiries is unnecessary in the present case; by its very nature, SAT copies at least
some material from Seinfeld. The legally significant question therefore becomes whether
the copying which took place rendered the two works substantially similar as a matter of
law i.e., whether SAT copied "elements of [Seinfeld] that were original." Id.
B.
Original Elements of Seinfeld
"The sine qua non of copyright is originality." Feist, 499 U.S. at 345.
Indeed, it is for this reason that "[n]ot all copying
is copyright infringement," but only
the copying of the original elements of a protected work. Id. at 361. Addressing this
point, defendants invoke a fact/expression distinction that has proven decisive in
numerous infringement cases. See, e.g., Feist, 499 U.S. 341 (finding no infringement
where defendant produced a multi-county phone directory, in part, by obtaining names
and phone numbers from plaintiff's single-county directory); Harper & Row Publishers V.
Nation Enterprises, 471 U.S. 539 (1985) (finding infringement where defendant
published magazine article which did not merely include facts revealed by President Ford
in his as yet unpublished memoirs, but which excerpted the President's expression of
those facts); Worth V. Selchow & Richter Co., 827 F.2d 569 (9th Cir. 1987) (finding no
infringement where defendant incorporated facts chronicled in plaintiff's reference books
into a trivia game), cert. denied, 485 U.S. 977 (1988). Specifically, defendants argue that
11
LINTON LIBRARY PHOTOCOPY
SAT does not copy plaintiff's protected expression, but merely quizzes readers as to the
show's underlying facts and ideas.
Consideration of the logic underlying the fact/expression distinction reveals
a fundamental flaw in defendants' reasoning. The fact/expression dichotomy has been
developed in a series of cases concerning the publication of nonfiction works and factual
compilations. See, e.g., Feist, 499 U.S. 341 (compilation); Harper & Row, 471 U.S. 539
(nonfiction history). The facts reported in such works "do not owe their origin to an act
of authorship." Feist, 499 U.S. at 347. Accordingly, courts have adopted an approach
"permitting free communication of [these] facts while still protecting an author's
expression." Harper & Row, 471 U.S. at 556 (quoting, with approval, lower court's
decision, reported at 723 F.2d 195, 203 (2d Cir. 1983)). Specifically, protection extends
only to the original manner in which the copyright holder expresses or compiles the facts
that are reported, and not to the facts themselves. See, e.g., Harper & Row, 471 U.S.
539; Feist, 499 U.S. 340. This is an appropriate resolution of the tension between facts
and expression because the facts of a nonfiction work simply "do not contain the requisite
originality and creativity required as the 'sine qua non of copyright." Arica, 970 F.2d at
1074 (citing Feist, 499 U.S. at 345).
By contending that they are not reproducing original expression from
Seinfeld, but only "uncopyrightable facts about the Seinfeld show," plaintiffs are staking
their claim upon a false premise. (Defendant's Memorandum of Law in Opposition to
Plaintiff's Motion for Partial Summary Judgment at 7). SAT does not pose "factual"
12
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questions about the Seinfeld show; it does not ask who acts in the program, who directs or
produces the show, how many seasons it has run, etc. Instead, SAT poses questions
about the events depicted during episodes of the Seinfeld show. The facts depicted in a
Seinfeld episode, however, are quite unlike the facts depicted in a biography, historical
text, or compilation. Seinfeld is fiction; both the "facts" in the various Seinfeld episodes,
and the expression of those facts, are plaintiff's creation. Thus, while defendants' book
does not report plot developments and digest programs, as in Twin Peaks, SAT is devoted
to questions concerning creative components of Seinfeld. In other words, by copying
"facts" that plaintiff invented, SAT "appropriate[s] [plaintiff's] original contributions."
Harper & Row, 471 U.S. at 548. Thus, to find in defendant's favor merely by rote
application of the rule against affording copyright protection to facts would be to divorce
that rule from its underlying rationale. Simply put, and of most direct concern under the
Copyright Act, defendants have appropriated original elements of plaintiff's work.
Though treating the issue in a very different context, the most recent
Second Circuit decision concerning the fact/expression dichotomy provides additional
support for this Court's conclusion. See National Basketball Association V. Motorola,
Inc., 1997 WL 34001 (2d Cir. Jan. 30, 1997) (hereinafter "NBA"). In NBA, the National
Basketball Association claimed that defendant infringed their valid copyright in televised
professional basketball games by reporting the scores of those games, during play, to
purchasers of their electronic pagers. In finding for defendants, the Court drew a
distinction very illuminating for present purposes: the Court noted that, "[u]nlike movies,
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plays, television programs, or operas, athletic events have no underlying script." Id. at
* 4 (emphasis added). On this basis, the Court concluded that the facts of a game (e.g.,
the score, the foul situation, the time remaining, etc.) could not be protected by the
Copyright Act; only those aspects of a broadcast that are under the NBA's creative control
merited such protection (e.g., camera angles, commentary, graphics, etc.). The present
case, of course, presents the opposite situation; this case involves facts copied from a
"television program" with an "underlying script." Unlike the facts of a professional
basketball game (or the facts compiled in a phone directory or biography), the facts
revealed during an episode of Seinfeld are created by the show's writers. Thus, by
reporting "facts" from each episode -- whether by transmitting them on a pager, or by
including them as the answers to a set of trivia questions defendants have appropriated
"original components" of plaintiff's protected work.
C.
Willfulness
Though it is not essential to a finding of liability under the Copyright Act,
the question of whether a defendant's infringement was willful does have a significant
bearing upon the potential damages to be awarded in connection with the violation. See
17 U.S.C. § 504(c)(2). "[A] court need not find that an infringer acted maliciously to find
willful infringement." Fitzgerald Pub. Co., Inc. V. Baylor Pub. Co., Inc., 807 F.2d 1110,
1115 (2d Cir. 1986). "The standard is simply whether the defendant had knowledge that
its conduct represented infringement or perhaps recklessly disregarded the possibility."
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Twin Peaks, 996 F.2d at 1382.
The parties have not briefed the question of damages, and the Court is
hesitant to make a finding of willfulness outside the context of the damages question
which it implicates. Nevertheless, the record provides clear evidence, at a minimum, of
defendants' reckless disregard for the possibility that their conduct amounted to copyright
infringement. See Twin Peaks, 996 F.2d at 1382. First, defendants were on notice that
Seinfeld is a protected work: each televised episode commences with a copyright notice.
(Wittenburg Aff. 1 10). Also, all the defendants are sophisticated with respect to such
matters. Defendant Golub is an attorney. Mr. Shragis, Carol's publisher, testified that his
company has had experience with the copyright laws, and that he is familiar with the
requirements of those laws. (Schragis Dep. at 17, 73-74, 93, 107-09). Finally, Carol
continued to publish and distribute SAT after receiving actual notice from plaintiff
demanding that Carol cease and desist publication. (Schragis Dep. at 17-19). In other
words, defendants continued in their infringement even "after receiving a specific
warning." See Twin Peaks, 996 F.2d at 1382.
II.
Fair Use
As the preceding discussion demonstrates, plaintiff has established a prima
facie case of infringement by showing that SAT appropriates original elements from
Seinfeld. Defendants argue, however, that, even if SAT is an unauthorized copy of
Seinfeld - as the Court has found it to be - the book is protected by the "fair use"
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doctrine. As set out in the Copyright Act:
the fair use of a copyrighted work
for purposes such as criticism,
comment, news reporting, teaching
scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall
include ---
(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
17 U.S.C. § 107. "[T]he applicability of the fair use defense is ordinarily a factual
question for the jury to determine." Roy Export Co. Establishment V. Columbia
Broadcasting System, Inc., 503 F. Supp. 1137, 1143 (S.D.N.Y. 1980), aff'd, 672 F.2d
1095 (2d Cir.), cert. denied, 459 U.S. 826 (1982); see also Harper & Row, 471 U.S. at
560 ("Fair use is a mixed question of law and fact."); Maxtone-Graham V. Burtchaell, 803
F.2d 1253, 1258 (2d Cir. 1986) ("Because the fair use question is so highly dependent on
the particular facts of each case, courts have usually found it appropriate to allow the
issue to proceed to trial."), cert. denied, 481 U.S. 1059 (1987). However, where the
district court has "facts sufficient to evaluate each of the statutory factors," it may
conclude as a matter of law that the challenged use is not a protected fair use. Harper &
Row, 471 U.S. at 560; see also Leibovitz, 1996 WL 733015, * 4 (citing several cases for
the proposition "that a rejection of the fair use defense and a subsequent finding in favor
of a copyright plaintiff
may be appropriate at summary judgment.").
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A.
Purpose And Character Of The Use
"The enquiry here may be guided by the examples given in the preamble to
§ 107, looking to whether the use is for criticism, or comment, or news reporting, and the
like." Campbell V. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 1171
(1994). Though it may be "extravagant" to characterize SAT as a work of criticism or
comment, the Court "must be alert to the risk of permitting subjective judgments about
quality to tilt the scales on which the fair use balance is made." Twin Peaks, 996 F.2d at
1374. Surely a text testing one's knowledge of Joyce's Ulysses, or Shakespeare's Hamlet,
would qualify as "criticism, comment, scholarship, or research," or such. The same must
be said, then, of a text testing one's knowledge of Castlerock's Seinfeld. Id. ("A comment
is as eligible for fair use protection when it concerns 'Masterpiece Theater' and appears in
the New York Review of Books as when it concerns 'As the World Turns' and appears in
Soap Opera Digest."). Thus, the Court is satisfied that SAT "serves one or more of the
non-exclusive purposes that section 107 identifies as examples of purposes for which a
protected fair use may be made." Id.
As the Supreme Court recently explained, the "central purpose" of the
Court's inquiry into the character and purpose of an allegedly infringing work must be to
determine whether that work is "transformative." Campbell, 114 S.Ct. at 1171; see also
Twin Peaks, 996 F.2d at 1375. Put differently, the analysis properly focuses upon,
whether "the new work merely 'supersedes the objects' of the original creation, or instead
adds something new, with a further purpose or different character, altering the first with
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NATIONAL ARCHIVES AND RECORDS
William J. Clinton Presidential Library
1200 President Clinton Avenue
1985
Little Rock, AR 72201
501-244-2857
Date: July 6, 2009
To: File
From: Staff
Subject: Missing page
Page 18 of this document is not in the original file.
CLINTON LIBRARY PHOTOCOPY
A Presidential Library Administered by the National Archives and Records Administration
LINTON LIBRARY PHOTOCOPY
Tomy Corp., 630 F.2d 905 (2d Cir. 1980) (explaining that in order to be classified as a
derivative, a work must contain some "substantial, not merely trivial, originality"). Thus,
to hold that the transformative nature of a work automatically shields it from a successful
claim would be to reject an unassailable proposition - i.e., that the unauthorized
production of a derivative can support a claim for infringement. The question of whether
a work is transformative must therefore be most decisive when answered in the negative.
If a work is not transformative, "fair use should perhaps be rejected without further
inquiry into the other factors." Campbell, 114 S.Ct. at 1116. Where, as here, a work is
transformative, the crux of the fair use analysis remains: the Court must proceed with a
careful consideration of the remaining three factors, while merely granting defendants an
advantage at the outset.
Defendants' initial advantage must be tempered, if only slightly, by the fact
that their creation and publication of SAT was a commercial endeavor. The Copyright
Act "plainly assigns a higher value to a use that serves 'nonprofit educational purposes'
than to one of a 'commercial nature." Twin Peaks, 996 F.2d at 1374. This factor must
not be unduly emphasized, however. As the Supreme Court reasoned in Campbell, "[i]f
4
Though a useful generalization, this statement should not be elevated to the
status of a rule applicable in all situations. For instance, the Supreme Court has held that
the practice of video taping programs for subsequent private viewing represents a fair use,
but did not suggest that such video taping is "transformative." See Sony Corp. of
America V. Universal City Studios, 464 U.S. 417 (1984). Even without this factor, the
Court was satisfied that the creation of a tape designated solely for noncommercial,
private enjoyment, represents a fair use under the Copyright Act.
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commerciality carried presumptive force against a finding of fairness, the
presumption would swallow nearly all of the illustrative uses listed in the preamble
paragraph of § 107 since these activities 'are generally conducted for profit in this
country." Campbell, 114 S.Ct. at 1174 (citations omitted); see also Robinson V. Random
House, Inc., 877 F. Supp. 830, 840 (S.D.N.Y. 1995) ("because nearly all authors hope to
make a profit with their work, courts should be wary of placing too much emphasis on the
commercial nature in a fair use determination."). Thus, the commercial nature of SAT
reduces -- but does not nearly eliminate - the significance properly ascribed to the
transformative quality of defendants' work.
B.
Nature Of The Copyrighted Work
"This factor calls for recognition that some works are closer to the core of
intended copyright protection than others, with the consequence that fair use is more
difficult to establish when the former works are copied." Campbell, 114 S.Ct. at 1175.
As already discussed, originality is the core concern of copyright protection. See Feist,
499 U.S. at 345. If the second factor of the fair use test "favors anything," then, "it must
favor a creative and fictional work, no matter how successful." Twin Peaks, 996 F.2d at
1376; see also Stewart V. Abend, 495 U.S. 207, 237 (1990) ("In general, fair use is more
likely to be found in factual works than in fictional works."). Seinfeld is a highly
successful fictional and creative work. As defendants concede in their opposition papers,
plaintiff thereby has a decisive advantage with respect to the second factor of the fair use
analysis. (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for
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Partial Summary Judgment at 14-15).
C.
Substantiality Of The Portion Used
In addressing this factor, the parties engage in an almost academic
deconstruction of Seinfeld, with their analysis ultimately devolving into an exercise in
counting the number of words extracted from particular scripts and episodes. Adapting
competing methodologies, and failing to agree upon correct word counts, the parties
arrive at different measures of the extent of copying that took place. For instance,
plaintiff estimates that SAT copies 5.6 % of the Seinfeld episode most often referenced in
the book; defendants concede only 3.6% Accepting defendants' calculations, as is in
accord with the appropriate presumptions for summary judgment purposes, the 3.6 %
figure does little to advance defendants' cause.
Though the Court recognizes that a quantitative approach to addressing the
substantiality question has a place in the analysis, it is clear that even small amounts of
material extracted from an original work can suffice to counter a claim of fair use. Twin
Peaks, 996 F.2d at 1372 (finding infringement where defendant excerpted a total of 89
lines of dialogue from several episodes of a protected television program); Harper &
Row, 471 U.S. at 564-65 (finding infringement where defendant excerpted
approximately 400 words of a full length book); Roy, 503 F. Supp. 1137 (upholding jury
verdict finding infringement where defendant broadcast a series of film clips from six
full-length films by Charlie Chaplin). In other words, the substantiality factor "has both a
quantitative and a qualitative element to it." Wright V. Warner Books, 953 F.2d 731, 738
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(2d Cir. 1991). If a challenged work appropriates what amounts to "the heart" of an
original work, even if only in a few words, then such an appropriation is substantial for
purposes of the fair use inquiry. See Harper & Row, 471 U.S. at 565.
The Court's determination that SAT is substantially similar to Seinfeld "so
as to be prima facie infringing should suffice for a determination that the third fair use
factor favors the plaintiff." Twin Peaks, 996 F.2d at 1377. Indeed, whether under the
rubric of prima facie copying or the fair use defense, it is inescapable that SAT
appropriates essential elements of Seinfeld, and that Seinfeld is essential to SAT.
Beginning with the significance that the appropriated material has in relation to the
Seinfeld show, a brief review of SAT confirms that the book invokes all of the show's
main characters, and many of the show's most humorous plot elements. Perhaps more to
the point, SAT seizes upon the notion which lies at the very heart of Seinfeld -- that there
is humor in the mundane, seemingly trivial, aspects of every day life. Indeed, by inviting
its readers to recall literally 643 bits of information from various Seinfeld episodes, SAT
"follow[s] the basic premise of the Seinfeld show by focusing on minutiae in the day-to-
day lives of the show's characters." (Shostak Dep. Ex. 2 at 000604). As defendants
boasted before the onset of this litigation, SAT succeeds at "capturing [Seinfeld's] flavor
in quiz book fashion." (Golub Dep. Ex. 5 at 00606).
The "amount and substantiality" fair use factor is addressed primarily, to the
very matter considered by the Court in the preceding paragraph, i.e., "the volume and
substantiality of the work used with reference to the copyrighted work, not to the
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allegedly infringing work as a whole." 17 U.S.C. § 107(3). The Second Circuit,
however, has deemed it useful also to consider "the amount and substantiality of the
protected passages in relation to the work accused of infringement." Wright, 953 F.2d at
739. Not only does SAT draw upon significant elements of the Seinfeld program, but
SAT introduces relatively little additional material into the mix. Though the book
transforms the program by employing a trivia game format, that trivia game relates
exclusively to events as they are depicted in the Seinfeld program. Simply put, without
Seinfeld, there can be no SAT. See Salinger V. Random House, 811 F.2d 90, 99 (2d Cir.)
(finding that quantitatively modest excerpting from plaintiff's personal letters was
substantial where those excerpts, "[t]o a large extent, [made defendant's] book worth
reading."), cert. denied, 484 U.S. 890 (1987); see also Addison-Wesley Publishing Co. V.
Brown, 223 F. Supp. 219, 223-24 (E.D.N.Y. 1963) (stressing that defendant's book, a
manual consisting of the answers to a set of physics problems included in plaintiff's
college course book, had "no independent viability."); Midway Mfg. Co. Arctic Int'l, Inc.,
1981 WL 1390, # 9 (N.D. III. 1981) ("[If] defendant's device would only have value
because of plaintiff's particular copyrighted audio visual image, then plainly defendant's
device would only have value because of plaintiff's particular copyrighted audio visual
work. Defendant, thus, by selling its device reaps the benefits of plaintiff's artistic
endeavor."). In sum, defendants have identified and appropriated the most important
elements of Seinfeld, and have made them the most important elements of SAT.
Previously, the Court emphasized that its finding that SAT is transformative
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of Seinfeld cannot be dispositive for defendants, because such a holding would discredit
the proposition that the unauthorized production of a derivative work can be infringing.
On similar logic, the Court's finding that SAT incorporates a substantial amount from
Seinfeld cannot be dispositive in plaintiff's favor. Because a finding of substantial
similarity is a prerequisite to a prima facie claim of infringement, such a finding cannot
negate the possibility of fair use. Otherwise, the fair use provision of the Copyright Act
would amount to little more than a false promise of a viable defense; there would be no
real chance that a prima facie case of infringement could ever be negated by a showing of
fair use. The first three factors of the fair use analysis, then, suggest a somewhat
unsatisfying result; plaintiff has an advantage, but one that is hardly compelling or
dispositive.
D.
Effect On Potential Market
The effect on the market for the copyrighted work is "undoubtedly the
single most important element of fair use."⁵ Harper & Row, 471 U.S. at 566; see also
5
The Second Circuit has recently suggested that, by "conspicuously
omit[ting] this phrasing" in a recent discussion of the fair use standard, the Supreme
Court has placed the "effect on potential markets" factor on an equal footing with the
remaining three fair use considerations. American Geophysical Union V. Texaco Inc., 60
F.3d 913, 926 (2d Cir. 1994) (citing Campbell, 114 S.Ct. at 1171). Given the vigor with
which the Supreme Court has emphasized this factor in the past, this Court hesitates in
adapting the Second Circuit's dicta. In any event, because neither party has any
considerable advantage through the Court's consideration of the first three fair use factors,
the effect on the potential markets -- however important it is relative to the remaining
factors -- will be determinative in this case.
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Robinson, 877 F. Supp. at 842. For purposes of this inquiry, "harm to both the original
and derivative works must be considered." Robinson, 877 F. Supp. at 842. As for the
original work, defendants stress that SAT has not and cannot be expected to reduce
interest in Seinfeld. The Court agrees; SAT compliments Seinfeld. The book is only of
value to a regular viewer of the program. Moreover, though plaintiff proclaims plans to
enter derivative markets with books about Seinfeld, there is little suggestion -- and
certainly not enough to remove all material doubt - that such projects are anything more
than a remote possibility. See Wright, 953 F.2d at 739 ("Plaintiff offered no evidence
that the project will go forward."). Indeed, if past practice provides any indication,
plaintiff will be slow to develop any such works for fear of compromising Seinfeld's
reputation for quality.
This does not end the analysis, however; "the proper inquiry concerns the
'potential market' for the copyrighted work." Salinger, 811 F.2d at 99. More broadly, the
inquiry must extend even to the potential market for as yet nonexistent derivative works.
Campbell, 510 U.S. at 1178 (accepting defendant's position that rap music parody of the
song, Pretty Woman, would not detract from sales of the original, but remanding for
determination as to whether parody would effect the market for hypothetical non-parody
"rap derivatives" of Pretty Woman.). In other words, the Court must consider not only
whether SAT detracts from interest in Seinfeld, or even whether SAT occupies markets
that plaintiff intends to enter; the analysis is whether SAT occupies derivative markets
that plaintiff may potentially enter. Id.; see also Rogers, 751 F. Supp. at 480 ("I do not
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think the case turns upon Rogers' past conduct or present intention as much as it does
upon the existence of a recognized market for new versions or new uses of the
photograph, which unauthorized use clearly undermines."). At first blush, this seems to
create an impossible standard for a defendant to satisfy; any time there is a successful
infringing work (i.c., one likely to provoke a law suit), it necessarily means that
defendants are filling a "potential" market that would otherwise be available for plaintiff's
taking. See 3 Nimmer § 13.05[A][4], at 13-187. Properly understood, however, the
"potential markets" standard erects no such barrier to a finding of fair use.
The term "potential markets" does not properly encompass all conceivable
markets for an original and its derivatives. "The market for potential derivative uses
includes only those that creators of original works would in general develop or license
others to develop." Campbell, 114 S.Ct. at 1178. The examples of parody and criticism
should serve to clarify and illustrate this proposition. By the very nature of such
endeavors, persons other than the copyright holder are undoubtedly better equipped, and
more likely, to fill these particular market and intellectual niches. See Campbell, 114
S.Ct. at 1178 ("there is no protectable derivative market for criticism."); New Era
Publications, Int'l V. Carol Publishing Group, 904 F.2d 152, 160 (2d Cir.) ("a critical
biography serves a different function than does an authorized, favorable biography, and
thus injury to the potential market for the favorable biography by the publication of the
unfavorable biography does not affect application of factor four."), cert. denied, 498 U.S.
921 (1990); Leibovitz, 1996 WL 733015, at * 13 ("although derivative markets are an
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appropriate consideration in a fair use analysis, there is no protectable derivative market
for criticism."). Here, the Court sees no reason that the market for derivative game
versions of Seinfeld is a market that should be reserved for persons other than plaintiff. A
Seinfeld trivia game is not critical of the program, nor does it parody the program; if
anything, SAT pays homage to Seinfeld. The market for such works is one that should
properly be left to plaintiff's exclusive control.
The Court's resolution of the "potential markets" inquiry is not effected by
the prospect that plaintiff will choose to leave this particular derivative market
unsatisfied. See Salinger, 811 F.2d at 99 ("the need to assess the effect on the market for
Salinger's letters is not lessened by the fact that their author has disavowed any intention
to publish them during his lifetime."). The Court is persuaded that there is a meaningful
difference, for purposes of the Copyright Act, between a copyright holder's failure to
occupy a particular market as a matter of choice, and a failure to occupy such a market as
a matter of neglect. Id. In a manner of speaking, plaintiff has exercised its control over
derivative markets for Seinfeld products, if only by its decision to refrain from inundating
those markets. Indeed, artists express themselves not merely by deciding what to create
from their original work, but by deciding what not to create as well. Cf. Harper & Row,
471 U.S. at 559 ("freedom of thought and expression 'includes both the right to speak
freely and the right to refrain from speaking at all.") (citations omitted). It would
therefor not serve the ends of the Copyright Act -- i.e., to advance the arts - if artists
were denied their monopoly over derivative versions of their creative works merely
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because they made the artistic decision not to saturate those markets with variations of
their original. Where nothing in the nature of criticism or parody is at issue, this creative
choice must be respected.
E.
Aggregate Fair Use Assessment
Though there are numerous competing considerations which make this
decision a difficult one, the Court is persuaded that, on balance, SAT does not represent a
fair use of Seinfeld. Only one of the four statutory factors favors defendant, and then,
only by a generous understanding of what it means for a work to be "transformative."
Plaintiff prevails with respect to each of the remaining three factors: Seinfeld is a work of
fiction, and such works are accorded special status in copyright law; SAT draws upon
"essential" elements of Seinfeld, and it draws upon little else; and, most importantly, SAT
occupies a market for derivatives which plaintiff -- whatever it decides -- must properly
be left to control. In short, SAT does not make fair use of Seinfeld, and plaintiff must
accordingly be granted summary judgment on its claim of copyright infringement. See
Wright, 953 F.2d at 740 ("a party need not 'shut-out' her opponent on the four factor tally
to prevail.").
:
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III.
Common Law Unfair Competition
In order to succeed on a claim of common law unfair competition under
New York law, plaintiff must establish the bad faith misappropriation of its labor and
expenditure resulting in the likelihood of confusion as to the source of the product. See
Kraft General Foods V. Allied Old English, Inc., 831 F. Supp. 123, 135 (S.D.N.Y. 1993);
Shaw V. Time-Life Records, 38 N.Y.2d 201, 206, 379 N.Y.S.2d 390, 395 (1975). "Thus,
some showing of bad faith is crucial to the claim." Brown V. Quiniou, 744 F. Supp. 463,
473 (S.D.N.Y. 1990). The Court must also determine "whether persons exercising
'reasonable intelligence -- and discrimination' would be taken in by the similarity"
between the two products. Shaw, 38 N.Y.2d at 206 (citations omitted). In other words,
plaintiff must prove a likelihood of confusion among members of the general public as to
the source of defendants' work. See Charles Of The Ritz Group, Ltd. V. Quality King
Distributors, Inc., 832 F.2d 1317, 1321 (2d Cir. 1987); Weight Watchers International,
Inc. V. Stouffer Corp., 744 F. Supp. 1259, 1283 (S.D.N.Y. 1990).
"Likelihood of confusion is usually measured by applying the test
formulated by Judge Friendly in Polaroid Corp. V. Polarad Electronics Corp., 287 F.2d at
495." See Weight Watcher, 744 F. Supp. at 1269; see also Twin Peaks, 996 F.2d at 1379
(remanding to the district court for a "full" examination of the Polaroid factors in
connection with plaintiff's claim of trademark infringement). Specifically, the Court must
balance the following factors:
the strength of [the owner's] mark, the degree of similarity between the two
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marks, the proximity of the products, the likelihood that the prior owner
will bridge the gap, actual confusion, and the reciprocal of defendant's good
faith in adopting its own mark, the quality of defendant's product, and the
sophistication of the buyers.6
Polaroid, 287 F.2d at 495. Despite the stature of the "venerable Polaroid factors," the
parties have not addressed, or even identified, most of these considerations in their
discussion of consumer confusion. See Twin Peaks, 996 F.2d at 1379.
The matters that the parties have focused upon simply are not so compelling
as to merit summary judgment. Plaintiff begins by arguing that defendants have created
confusion as to the sponsorship of SAT by including the name "Seinfeld" in the book's
title, and by referring to the Seinfeld show in promotional materials. (Memorandum of
Law in Support of Plaintiff's Motion for Partial Summary Judgment at 23-24). As
defendants explain, however, "there's no secret that the book is based on the show."
(Golub Dep. at 95). The book is expressly directed to devotees of the television program,
and it is dedicated to testing their knowledge of the show. It is all but inevitable that the
Seinfeld name would be invoked in the book's title and in its advertising. See Twin
Peaks, 996 F.2d at 1379 (there can be "little question that the title is of some artistic
6
Though this formulation has been developed in the context of federal claims
under the Lanham Act for trademark infringement, it has also been applied to common
law claims of unfair competition, and it reaches the identical "likelihood of confusion"
issue which is of present concern. See, e.g., Weight Watchers, 744 F. Supp. at 1283
("Common law unfair competition claims closely parallel Lanham Act unfair competition
claims; to the extent that they may be different, the state law claim may require an
additional element of bad faith or intent."); see also Kraft, 831 F. Supp. 123, 136 ("the
Court has already found, in the context of the Lanham Act claims, that plaintiff has
demonstrated a likelihood of confusion").
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relevance to the Book."). "The question then is whether the title," and advertising, "is
misleading in the sense that it induces members of the public to believe the Book was
prepared or otherwise authorized by [defendants]." Twin Peaks, 996 F.2d at 1379.
Plaintiff argues that there are similarities between the word "Seinfeld" as it
appears on the cover of SAT and the Seinfeld logo which reveal defendants' intention to
mislead consumers as to the origin of the book. Specifically, the Seinfeld logo and the
word "Seinfeld" as it appears on the front cover of SAT share similar type face, and the
Seinfeld lettering on the back cover appears in the same red coloring as the logo.
Moreover, the word Seinfeld is prominently featured on the front and back covers of
SAT. Though the Court agrees that there are unmistakable similarities between the
Seinfeld logo and the SAT cover, there are distinct differences, as well. Most notably, the
Seinfeld logo is written on a slant, with an inverted triangle over the "i." The word
"Seinfeld," as it appears on the cover of SAT, is not adorned with any such flourishes.
Even accepting that the word "Seinfeld," as it appears on the cover of SAT,
bears an unlikely resemblance to the Seinfeld logo, there is another important aspect of
the SAT cover -- the disclaimer on the back cover of the book -- which is sufficient to
create an issue of fact on the questions of bad faith and consumer confusion.
"Disclaimers are a favored way of alleviating consumer confusion as to source or
sponsorship." Consumers Union of United States, Inc. V. General Signal Corp., 724 F.2d
1044, 1052-53 (2d Cir. 1983) ("We are satisfied that the disclaimer is adequate to
distance CU and Regina"), cert. denied, 469 U.S. 823 (1984). The parties, predictably
31
LINTON LIBRARY PHOTOCOPY
enough, have sharply contrasting views of the disclaimer set out on the back cover of
SAT. Plaintiff stresses the small lettering of the disclaimer; lettering that was reduced in
size shortly before publication and made smaller than any other text in the book.
Defendants draw the Court's attention to the black border surrounding the disclaimer, and
to the shaded background allegedly designed to highlight that disclaimer. For purposes of
the parties' competing claims for summary judgment, the Court is simply unable to find
that any of these considerations is conclusive as a matter of law.
Given that those factors that plaintiff relies upon to establish consumer
confusion are inconclusive, it is significant that plaintiff offers little in the way of
empirical support for its claim. In fact, "[p]laintiff adduce[s] but one incident of actual
confusion, and it is of scant probative value." Brown, 744 F. Supp. at 472. Specifically,
plaintiff interprets NBC's decision to distribute copies of SAT in connection with a
Seinfeld promotion as a clear indication that an average consumer could be misled as to
the sponsorship of SAT. As plaintiff sees it, NBC's behavior suggests that the very
network which airs Seinfeld mistook the book's origin. As defendants point out, however,
the network's behavior might also be taken to suggest that NBC was not confused as to
the origin of SAT so much as it was simply unconcerned with the origin of SAT.
Any inquiry into a defendant's alleged bad faith and the potential for
consumer confusion necessarily entails a "factual inquiry." Brown, 744 F. Supp. at 467,
472. As such, summary judgment cannot be granted on plaintiff's claim of unfair
competition unless there is no material dispute as to either of these matters. Id. at 472
32
LINTON LIBRARY PHOTOCOPY
("Subjective issues such as good faith and intent are generally inappropriate subjects of
summary judgment."); see also Shaw, 38 N.Y.2d 201 (upholding denial of summary
judgment where issue of material fact existed as to whether reasonably discriminating
members of the public would be confused by publisher's advertising of bandleader's
versions of musical compositions). Plaintiff certainly has not succeeded in eliminating
any such dispute: "Similarity in overall appearance alone cannot establish source
confusion as a matter of law. Nor is the addition of the anecdotal evidence
dispositive." Coach, 933 F.2d at 169. Defendants have fared no better; there are
significant questions concerning the SAT cover, defendants' alleged bad faith during
editing, and the adequacy of the book's disclaimer. In short, a dispute exists between the
parties, a dispute which cannot now be resolved. Accordingly, the Court denies plaintiff's
motion for summary judgment on its claim of unfair competition, as well as defendants'
cross-motion on this same cause of action.
33
LINTON LIBRARY PHOTOCOPY
CONCLUSION
For the reasons set forth above, the Court grants plaintiff's motion For
summary judgment, on the issue of liability, on its claim of copyright infringement. As
for plaintiff's common law claim of unfair competition, the Court finds that there remains
a dispute as to material facts between the parties. Therefore, the Court denies plaintiff's
request for summary judgment on this issue, as well as defendants' cross-motion for
judgment in its favor.
A conference is scheduled for March 20, 1997, at 4:30 p.m., by which time
the parties are directed to present the Court with a case management plan addressing how
the measure of relief for the copyright infringement claim will be determined, and
proposing a schedule for proceeding to trial on the claim of unfair competition.
so ORDERED
Dated:
New York, New York
February2), 1997
July
U.S.D.J.
34
LINTON LIBRARY PHOTOCOPY
812 F.Supp. 22
Page 1
147 L.R.R.M. (BNA) 2892
(Cite as: 812 F.Supp. 22)
FISHER SCIENTIFIC COMPANY, Plaintiff,
[3] LABOR RELATIONS 8 994
V.
232Ak994
CITY OF NEW YORK; New York City Council;
Employer, which hired replacement workers during
Andrew Stein, as President Thereof;
labor dispute, failed to show that it would suffer
Charles Millard, C. Virginia Fields, Lawrence A.
irreparable harm if city and city council were not
Warden, Jose Rivera, Rafael
enjoined from holding hearing on or ratifying
Castaneira-Colon, Walter L. McCaffrey, Karen
resolution stating that employer's use of replacement
Koslowitz, Annette Robinson, Susan
workers called into question the quality of its
Alter, as Council Members Constituting the
medical and laboratory supplies and recommending
Committee on Civil Service and Labor
that city agencies buy supplies from companies other
of the New York City Council, Defendants.
than employer, and thus, employer was not entitled
to permanent injunction; employer was unable to
No. 92 Civ. 8774 (SS).
identify even one customer that expressed concern
over proposed resolution and resolution might
United States District Court,
undergo substantial modification before passage or
S.D. New York.
might not be passed at all.
Jan. 29, 1993.
*23 Pitney, Hardin, Kipp & Szuch, Morristown,
NJ, for plaintiff; by Sean T. Quinn.
Employer sought to enjoin city and city council
from proposing, holding hearing on, or ratifying
City of New York, Law Dept., New York City,
resolution expressing negative opinion about
for defendants; by Lawrence S. Kahn.
employer's labor negotiations. Employer requested
preliminary and permanent injunctive relief. After
Shea & Gould, New York City, for Intervenor
trial; the District Court, Sotomayor, J., held that
Intern. Broth. of Teamsters, Steel, Metal, Alloys
employer, which hired replacement workers during
and Hardware Fabricators and Warehousemen,
labor dispute, failed to show that it would suffer
Local 810, AFL-CIO; by Eve I. Klein, Joshua A.
irreparable harm if city and city council were not
Adler, Mark S. Weprin.
enjoined from ratifying resolution expressing
negative opinion about employer's labor
MEMORANDUM OPINION AND ORDER
negotiations and thus, employer was not entitled to
permanent injunction.
SOTOMAYOR, District Judge.
Injunctive relief denied and complaint dismissed.
Plaintiff Fisher Scientific Company ("Fisher")
seeks to enjoin defendants, the City of New York,
[1] CONSTITUTIONAL LAW @ 70.1(1)
the New York City Council ("City Council"), the
92k70.1(1)
City Council's Committee on Civil Service and
Courts' foray into ongoing legislative activity
Labor (the "Committee") and the members of the
should be restrained by healthy respect for
City Council (collectively, the "City Defendants"),
separation of powers; implicit in that doctrine, and
from holding a hearing on or proposing, endorsing,
intertwined with requirement of ripeness, is notion
or ratifying Resolution 910. Resolution 910
that court should give legislative body the
expresses a negative opinion about Fisher's labor
opportunity to avoid running afoul of the
negotiations with the International Brotherhood of
Constitution.
Teamsters, Steel, Metal, Alloys and Hardware
Fabricators and Warehousemen, Local 810. AFL-
[2] CONSTITUTIONAL LAW - 70.1(1)
CIO (the "Union"), notes that Fisher's use of
92k70.1(1)
replacement workers calls into question the quality
Court may order legislative body to adopt particular
of its products, and recommends that City agencies
act if legislators have signed consent decree stating
buy medical and laboratory supplies from companies
that they would do so.
other than Fisher until Fisher rehires its Union
workers. The parties agreed to combine the trial on
Copr. D West 1997 No claim to orig. U.S. govt. works
:LINTON LIBRARY PHOTOCOPY
812 F.Supp. 22
Page 2
(Cite as: 812 F.Supp. 22, *23)
the merits on Fisher's application for a permanent
that the City Council notify Fisher that its action
injunction with the preliminary injunction hearing.
"violates acceptable labor relation standards, and
For the reasons stated below, Fisher's application
that the City of New York will seek to give
for injunctive relief is DENIED and the Complaint
preference to alternative suppliers until the [EDC]
is dismissed. In addition, Fisher's request for an
warehouse employees are rehired and reinsured."
injunction pending appeal is DENIED.
A Committee hearing was originally scheduled for
I. Background
December 9, 1992. Fisher advised Ms. Gonzales
that it believed that the proposed hearing on
A. The Events Giving Rise to This Action
Resolution 910 constituted an unlawful interference
with the collective bargaining process. Two days
Fisher manufactures and distributes medical,
later, Fisher brought this action pursuant to 42
laboratory, and scientific equipment. Fisher's
U.S.C. $ 1983, alleging that the Committee's and
Eastern Distribution Center ("EDC"), in
Council's actions on Resolution 910 would violate
Springfield, New Jersey, serves as a regional
its federal right to collective bargaining. Fisher
warehouse and distribution point for medical and
sought a Temporary Restraining Order ("TRO"),
laboratory equipment, such as microscopes and test
and preliminary and permanent relief from any
tubes.
actions by the City Defendants on the proposed
resolution.
Since 1967, Fisher and the Union have been
parties to successive collective bargaining
At this Court's hearing on the application for a
agreements covering EDC employees. The most
TRO, City Defendants announced that the
recent collective bargaining agreement expired by its
Committee hearing on Resolution 910 was
own terms on October 21, 1991 and certain Union
postponed until January, 1993. In addition, the
employees at the EDC then began to strike. Fisher
Union entered an appearance, seeking to intervene
operated the EDC with a reduced crew of
in this action, as of right or by permission, or,
supervisors and temporary replacements until
alternatively, to participate in the proceedings as
February 1992, when it permanently replaced the
amicus curiae. [FN1] The Court did not grant the
economic strikers at the EDC. Since the strike
temporary injunctive relief that Fisher sought,
began, negotiations between the parties have been
finding that the adjournment of the hearing removed
unsuccessful.
the immediate threat of irreparable injury, and that a
balance of the equities favored affording the City
By letter dated November 12, 1992, Yvonne
Defendants the opportunity to respond fully to
Gonzalez, Assistant Counsel to the Speaker of the
Fisher's application. The City Defendants,
City Council, notified Fisher that the City Council's
however, were ordered to notify the Court at least
Committee would be holding a hearing on
seven days prior to "any hearing on Resolution 910
Resolution 910. Resolution 910 observes that
or any other resolution or action similar thereto
Fisher "offered their warehouse employees [at the
which relates to the labor dispute or the collective
EDC] the ultimatum of accepting a 450% increase in
bargaining negotiations between [Fisher] and [the
the employee contribution to the health insurance
Union)."
premium, or going out on strike," and that Fisher
rejected a cost-saving proposal by the Union and
FNI. The Union has satisfied the requirements of
instead *24 "permanently replaced those 77 long-
Fed.R.Civ.P. 24(a)(2) and its unopposed motion to
service, experienced workers." Resolution 910 goes
intervene as of right is granted. See, e.g.,
on to note that "[t]he quality of the products now
Farmland Dairies V. Comm. of New York State
offered by Fisher to medical institutions of the City
Dept. of Agriculture, 847 F.2d 1038, .1043 (2d
of New York is compromised by the company's use
Cir.1988). The Court need not consider the
of inexperienced replacement workers." For those
Union's alternative motions to intervene
reasons, the City Council would resolve to
permissively, pursuant to Fed.R.Civ.P. 24(b)(2). or
recommend "that every city agency that buys
to appear as amicus curiae.
medical and laboratory supplies from Fisher
Scientific seek alternative sources for products." and
A hearing was held in January on Fisher's
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CLINTON LIBRARY PHOTOCOPY
812 F.Supp. 22
Page 3
(Cite as: 812 F.Supp. 22, *24)
application for a preliminary injunction. The Court
committee's members approves the resolution, it is
has granted the parties' request that, pursuant to
then presented to the full City Council for
Fed.R.Civ.P. 65(a), the preliminary injunction
consideration, where it may or may not be
hearing be combined with the trial on the merits on
approved. A proposed resolution may be amended
Fisher's request for permanent injunctive relief.
at numerous stages in the process. In contrast to a
Timely notice has now been given that a Committee
bill for a local law, no mayoral approval is required
hearing on Resolution 910 is scheduled for February
for a resolution: once the City Council passes the
1, 1993.
resolution, no further activity is required. In
addition, unlike a local law, which has binding force
B. The City Council and Its Resolutions
and effect, a resolution such as that concerning
Fisher is merely hortatory, with no binding effect.
A short review of the powers and procedures of
the City Council, as well as the path by which a
FN2. There is a narrow exception for those
resolution is enacted, and its subsequent effect,
resolutions that are introduced at a meeting of the
illuminates the issues that this case presents.
full Council for immediate consideration.
Resolution 910 does not fall within this exception.
The City Council and its committees possess and
exercise all of the legislative power of the City of
II. Discussion
New York. The City Council's powers include the
exclusive authority to adopt local laws and to adopt
The purpose of a preliminary injunction is "to
and modify the budget for New York City. In
protect plaintiff from irreparable injury and to
addition, the City Council has the authority to
preserve the court's power to render a meaningful
provide an opportunity for discussion of matters of
decision after a trial on the merits." Wright &
public concern and to provide a forum for public
Miller, 11 Federal Practice and Procedure § 2947;
comment on such issues through a public hearing
Abdul Wali V. Coughlin, 754 F.2d 1015, 1025 (2d
process. Finally, the City Council, or any of its
Cir. 1985). At the hearing on Fisher's application
standing or special committees, may investigate any
for a preliminary injunction, the parties agreed that
matters within its jurisdiction relating to the
no further evidence would be presented at any
"property, affairs or government of the City."
ultimate trial on the merits. The Court granted their
Charter of New York City $ 29. The City Council
request that the trial on the merits be consolidated
is also charged with the regular review of the
with the preliminary injunction hearing, as
activities of New York City agencies. Id.
prescribed by Fed.R.Civ.P. 65(a)(2). See, e.g.,
McNeil-P.C.C., Inc. V. Bristol-Myers Squibb Co.,
To implement these responsibilities and mandates,
938 F.2d 1544, 1545 (2d Cir.1991). Thus, the trial
the City Council has previously *25 held two
on the merits has already been held, and Fisher's
different types of hearings. On the one hand,
application for a preliminary injunction is now
following the notorious fire at a Bronx social club
treated as a request for the permanent injunctive
that resulted in the death of over eighty people, a
relief that Fisher sought in its Complaint.
City Council committee conducted a vigorous full-
scale investigation and public inquiry. that resulted
Fisher asks this Court to enjoin City Defendants
in strong criticism of New York City's regulation of
under 42 U.S.C. § 1983 from proposing,
clubs. In contrast, other hearings have been
sponsoring. holding a hearing on, or ratifying
convened to provide fora for discussion and public
Resolution 910. Fisher contends that such actions
comment upon issues of public concern. According
on City Defendants' part would deprive Fisher of its
to the City Defendants, the hearing on Resolution
federal right to engage in collective bargaining free
910 falls into this latter category of less formal
from state or municipal intrusion, as the Supreme
inquiries.
Court has explained that right in Lodge 76, Int'l
Association of Machinists and Aerospace Workers
Pursuant to City Council rules, a public hearing
V. Wisconsin Employment Relations Commission,
must be held before a committee may vote on a
427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49
resolution. [FN2] If a Committee then chooses to
L.Ed.2d 396 (1976) (*Machinists "). and its
vote on the resolution, and a majority of the
progeny. including Golden State Transit Corp. V.
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LINTON LIBRARY PHOTOCOPY
812 F.Supp. 22
Page 4
(Cite as: 812 F.Supp. 22, *25)
City of Los Angeles, 475 U.S. 608, 614, 106 S.Ct.
involved injunctive relief directed at a legislature's
1395, 1398, 89 L.Ed.2d 616 (1986) ("Golden State
mere consideration of a bill or resolution. See,
I ").
c.g., Golden State I (city unlawfully conditioned a
franchise renewal on the settlement of a labor
[1][2] The City Defendants and the Union have
dispute);
Machinists (overturning state
offered a wide range of reasons why the Court
commission's order that Union cease and desist
should not issue the requested equitable relief,
from certain activities): New York News (State
including legislative immunity, First Amendment
Department of Labor enjoined from convening
rights, and lack of ripeness. Moreover, they have
board of inquiry). However deeply troubled this
drawn compelling distinctions between this case and
Court may be about the reach of a district court's
those labor law preemption cases on which Fisher
power into the legislative process itself, there is no
relies, most notably New York News, Inc. V. State
need to address that question today because of
of New York, 745 F.Supp. 165 (S.D.N.Y.1990).
Fisher's failure in this case to demonstrate that it
However, the Court need not address any of these
will suffer irreparable harm absent injunctive relief.
issues at this time for the simple reason that Fisher
has failed to show that it would suffer irreparable
*26 [3] It is well established that a party seeking a
injury if the Court denied its application for
permanent injunction must demonstrate "the absence
injunctive relief. [FN3]
of an adequate remedy at law and irreparable harm if
the relief is not granted." N.Y. State National
FN3. This action raises serious questions about the
Organization for Women V. Terry, 886 F.2d 1339,
power of a district court to enjoin legislative
1362 (2d Cir. 1989), cert. denied, 495 U.S. 947,
activity. If the courts could, and did, routinely
110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). Fisher
entertain suits concerning pending legislation, they
has not carried its burden of showing that it will
would be swamped with actions by citizens fearful
suffer irreparable harm if the Defendants are not
that the destruction of their rights was imminent.
permanently enjoined from proposing, sponsoring,
Many of these putative suits regarding inchoste
holding a hearing on, or ratifying Resolution 910.
legislation are kept at bay by the requirement of
Consequently, its application for permanent
ripeness, which also ensures that the court hearing
injunctive relief must be denied.
such suits has the benefit of a precise factual
framework. In addition, the courts' foray into
Fisher contends that the consideration of
ongoing legislative activity should also be restrained
Resolution 910 by the City Defendants constitutes
by a healthy respect for separation of powers.
impermissible intrusion by a municipal government
Implicit in that doctrine. and intertwined with the
into the collective bargaining process. At oral
requirement of ripeness, is the notion that a court
argument, Fisher conceded that a statement by the
should give a legislative body the opportunity to
City Council members that they opposed Fisher's
avoid running afoul of the Constitution. See Prentis
negotiation tactics and stance would not be
V. Atlantic Coast Line Co., 211 U.S. 210. 227-30,
unlawful. It also agreed that the City Defendants
29 S.a. 67, 70-71, 53 L.Ed. 150 (1908). As the
could conduct an investigation into a complaint
City Defendants have frequently reminded the
about the safety of its products. Fisher's position,
Court, neither the Committee nor the City Council
however, is that any type of hearing by the City
has yet passed Resolution 910, and they may yet
Defendants to express an opinion on the collective
conclude on their own that the Resolution in its
bargaining process would be impermissibly
current form is unlawful. or unwise. There are
coercive, and irreparably harmful, by raising the
exceptions to this general hands-off rule. For
possibility of economic sanctions.
example, although it is not the case here. a court
may order a legislative body to adopt & particular
Nevertheless, Fisher has failed to introduce
act if the legislators had signed a consent decree
competent evidence sufficient to convince the Court
saying that they would do so. Sec, e.g., Spallone
that its faces irreparable harm. It has not shown that
V. United States, 487 U.S. 1251, 109 S.C. 14. 101
the City Defendants are forcing it to lose business or
L.Ed.2d 964 (1988). However, none of the cases
to capitulate to the Union, or that they will force it
that Fisher cites in support of its request that this
do so. For example, Fisher was unable to identify
Court stop the legislative process in its tracks
even one customer that had expressed concern over
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CLINTON LIBRARY PHOTOCOPY
812 F.Supp. 22
Page 5
(Cite as: 812 F.Supp. 22, *26)
the proposed resolution.
question of Fisher's negotiation strategy. which may
or may not happen, Fisher would not be forced to
Fisher also argues that the legislative process must
reveal anything. The City Defendants have
be stopped now because the very passage of
expressly disclaimed their subpoena powers for the
Resolution 910 would perfect a solicitation of an
hearing. Unlike the enjoined proceedings in New
illegal boycott that would irreparably harm Fisher.
York News, in which the parties would have been
However, the legislative proceedings that pertain to
"[c]ompelled to produce documents and testify
Resolution 910 are still at an embryonic stage.
under oath setting forth their bargaining positions,"
Resolution 910 may undergo substantial
745 F.Supp. at 169, the contemplated hearing in this
modification before passage or it may not be passed
case would not be coercive. It will neither "disrupt
at all [FN4]. Even if did pass, Resolution 910
the negotiations" nor "impact upon the positions of
would merely render advice to agencies-advice
the parties." 745 F.Supp. at 170. Thus, Fisher has
which, the City Defendants tell us, the agencies
made no showing that its non-coerced attendance at
would be free to ignore. Fisher has failed to
a hearing held in conjunction with a legislature's
introduce evidence as to how irreparable injury
consideration of a non-binding resolution would
would follow the passage of a hortatory resolution.
constitute such impermissible governmental
For example, Fisher has offered no evidence that
intrusion as to result in irreparable harm.
any city agencies would follow such advice, and
could not identify any city agencies that had stopped
In sum, Fisher has not convinced the Court that
doing business with it as a result of the proposal of
the consideration of Resolution 910 by the City
Resolution 910. For that matter, Fisher introduced
Defendants is coercive in any way. Fisher has
no evidence on the *27 portion of business that it
simply failed to demonstrate that it will suffer
does with city agencies. Fisher's counsel simply
irreparable harm, and absent such proof, injunctive
noted that after the Boston City Council passed a
relief cannot issue. N.Y. State National
resolution nearly identical to Resolution 910, a
Organization for Women V. Terry, 886 F.2d at
Boston newspaper article reported that a hospital
1362. This is not to say that Fisher may never have
administrator there agreed with the boycott.
a meritorious claim against the City Defendants.
Indeed, some of Fisher's suggestions regarding
FN4. An action for damages or for an injunction
Resolution 910 are quite troubling. For example,
against implementation of Resolution 910 would
Resolution 910 states at the outset that "[t]he quality
therefore be patently unripe at this juncture. See.
of the products now offered by Fisher to medical
c.g., New Orleans Public Service, Inc., V. Council
institutions of the City of New York is compromised
of City of New Oricans, 491 U.S. 350. 371-73. 109
by the company's use of inexperienced replacement
S.A. 2506, 2520, 105 L.Ed.2d 298 (1989)
workers." Yet, counsel for the City Defendants
(ripeness holding in Prentis directed against
admitted during oral argument that the Committee
"interference with an ongoing legislative process").
had received no complaints from Fisher's customers
questioning the quality of its products. Fisher's
There is also no support for Fisher's contention
observation that Resolution 910 may erroneously
that a legislative hearing would be coercive because
and unjustifiably raise the specter of a health and
it would present Fisher with the Hobson's choice of
safety threat in order to act as an economic bludgeon
not defending itself, or of being forced to protect its
is indeed alarming. The Court, however, cannot
interests at a hearing by disclosing its collective
address this concern in view of the scanty record
bargaining stance. Fisher, however, has failed to
assembled so far and in light of the inchoate
demonstrate that its absence from the hearing would
character of the resolution.
necessarily result in the passage of Resolution 910,
or that even if Resolution 910 did pass, irreparable
III. Conclusion
harm would follow. Further, there is no merit to
Fisher's suggestion that if it attended a hearing, it
For the reasons stated above, the Union's motion
would be forced to reveal confidential bargaining
to intervene as of right is GRANTED. Fisher's
goals and strategies that would compromise its
motion for a preliminary injunction, as well as its
collective bargaining position in abrogation of its
current request for permanent injunctive relief, is
federal rights. Even if the hearing did turn to the
DENIED and the Complaint is dismissed. Finally.
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LINTON LIBRARY PHOTOCOPY
812 F.Supp. 22
Page 6
(Cite as: 812 F.Supp. 22, *27)
because the Court concludes that there is little
likelihood of irreparable harm to Fisher if the City
Defendants continue to consider Resolution 910 in
accordance with the normal legislative procedures,
Fisher's request for a Fed.R.Civ.P. 62(c) injunction
pending appeal is DENIED.
so ORDERED.
END OF DOCUMENT
Copr. c West 1997 No claim to orig. U.S. govt. works
LINTON LIBRARY PHOTOCOPY
944 F.Supp. 326
Page
1
65 USLW 2400, 133 Lab. Cas. P 58,201. 12 IER Cases 388
(Cite as: 944 F.Supp. 326)
Barbara HAYBECK, Plaintiff,
matter of law within the scope of the employment,
V.
then court must dismiss complaint for failure to state
PRODIGY SERVICES COMPANY, a
claim.
Partnership of Joint Venture with IBM
Corporation
[1] MASTER AND SERVANT @ 332(2)
and Sears Roebuck and Co., and Jacob Jacks,
255k332(2)
Defendants.
Because determination of whether a particular act
was within the scope of servant's employment for
95 Civ. 9612(SS).
purposes of respondeat superior liability is so
heavily dependent on factual considerations, the
United States District Court,
question is ordinarily one for the jury under New
S.D. New York.
York law; however, where court takes as true all
the facts alleged by plaintiff and concludes that the
Nov. 12, 1996.
conduct complained of cannot be considered as a
matter of law within the scope of the employment,
Customer who bought time on company's
then court must dismiss complaint for failure to state
computer service and who had unprotected sex with
claim.
company's employee who was positive for Human
Immunodeficiency Virus (HIV) and who met
[2] MASTER AND SERVANT - 302(2)
customer in on-line company sex chat room brought
255k302(2)
action against company, alleging that, under theories
Under New York law, courts look to the following
of respondeat superior or negligent hiring and
factors in considering whether a particular act falls
retention, company was responsible for employee's
within employee's scope of employment for
transmission of the HIV virus to her. Company
purposes of respondeat superior liability:
moved to dismiss. The District Court, Sotomayor,
connection between the time, place, and occasion for
J., held that: (1) employee was not acting within
the act; history of relationship between employer
the scope of his employment with company when,
and employee as spelled out in actual practice;
outside the place of employment, he decided to
whether act is one commonly done by such
conceal his HIV status from, and have unprotected
employee; extent of departure from normal methods
sex with customer and thus, company could not be
of performance; and whether the specific act was
held liable, under the doctrine of respondeat
one that employer could have reasonably
superior, for employee's conduct, and (2) customer
anticipated.
did not establish that company's hiring or retention
of employee was negligent under New York law
[3] MASTER AND SERVANT - 302(2)
because customer did not allege that company knew
255k302(2)
that employee was concealing his HIV status from
Under New York law, employee was not acting
sex partners or was having unprotected sex with
within the scope of his employment with company
them.
which sold time on its computer service when,
outside the place of employment, he decided to
Motion granted.
conceal his positive Human Immunodeficiency Virus
(HIV) status from, and have unprotected sex with,
[1] MASTER AND SERVANT ( 329
company's customer whom he met in an on-line
255k329
company sex chat room and thus, company could
Because determination of whether a particular act
not be held liable, under the doctrine of respondeat
was within the scope of servant's employment for
superior, for the nondisclosure off duty conduct of
purposes of respondeat superior liability is so
employee, even if it acquiesced in the conduct by
heavily dependent on factual considerations, the
accepting the benefit of increased customer use of its
question is ordinarily one for the jury under New
services from employee's sexual activity.
York law; however, where court takes as true all
the facts alleged by plaintiff and concludes that the
[4] MASTER AND SERVANT a 302(1)
conduct complained of cannot be considered as a
255k302(1)
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CLINTON LIBRARY PHOTOCOPY
944 F.Supp. 326
Page 2
(Cite as: 944 F.Supp. 326)
Under New York law, even where employee does
defendant Prodigy Services Company (hereinafter
not act within the scope of his employment,
"Prodigy"), whom plaintiff first met in an on-line
employer may be required to answer in damages for
Prodigy sex chat room. Plaintiff contends that
the tort of an employee against a third party when
under theories of respondeat superior or negligent
employer has either hired or retained the employee
hiring and retention, Prodigy is responsible for
with knowledge of employee's propensity for the
Jacks' transmission of the HIV virus to her because
sort of behavior which caused the injured party's
Prodigy knew that Jacks had the AIDS virus and
harm.
knew that Jacks was having sex with customers he
met on-line. Prodigy moves pursuant to
[5] MASTER AND SERVANT - 303
Fed.R.Civ.P. 12(b)(6) to dismiss the complaint on
255k303
the ground of failure to state a claim upon which
Customer who purchased time from company on its
relief can be granted. For the reasons to be
computer service and who engaged in unprotected
discussed, defendant's motion to dismiss is granted.
sex with company's employee who was Human
Immunodeficiency Virus (HIV) positive and who
FNI. Jacob Jacks is believed to be deceased at this
met customer in on-line company sex chat room did
time. Although named in the complaint, neither
not establish that company's hiring or retention of
Jacks nor his estate have been served in this action.
employee was negligent under New York law;
(Defs' Mcm. at 3).
customer did not, and presumably could not, allege
that company knew that employee was concealing
*328 BACKGROUND
his HIV status from his sex partners or was having
unprotected sex with them and the conduct
Plaintiff's complaint alleges that Prodigy injured
complained of, whether it was the act of sex or
plaintiff by its negligent conduct in allowing their
employee's failure to disclose his HIV status, took
employee, Jacob Jacks, to have sexual intercourse
place outside of employer's premises and without
with customers with the knowledge that Jacks had
employer's chattels.
AIDS. Although the complaint asserts that
Prodigy's conduct injured plaintiff, it does not
[6] MASTER AND SERVANT - 302(1)
explain how. [FN2] Plaintiff's Affidavit and
255k302(1)
Memorandum of Law in Opposition to the instant
Under New York law, when employee's conduct is
motion, however, explain that after Jacks denied
beyond the scope of employment, employer's duty
being HIV positive, plaintiff had sexual intercourse
to third parties to prevent misconduct is limited to
with him and contracted the AIDS virus. (Haybeck
torts committed by employees on employer's
Aff.; PI.Mem. at 4-5).
premises or with employer's chattels.
FN2. The Complaint merely asserts: "(t]hat by
*327 Parker & Waichman, Jerrold S. Parker,
reason of the foregoing, plaintiff Barbara Haybeck
Great Neck, NY, for Plaintiff.
sustained severe and permanent personal injuries,
became sick, sore, lame and disabled, suffered
Phillips Nizer Benjamin Krim & Ballon, L.L.P.,
mental anguish, was confined to hospital, bed and
New York City (Perry S. Galler, Thomas G.
home and may, in the future, be so confined; was
Jackson, Liza M. Cohn, Michael Fischman, of
incapacitated and [sic] from attending to her usual
Counsel), for Defendants Prodigy Services
duties and may in the future, be so incapacitated,
Company, International Business Machines
plaintiff was and is substantially psychologically
Corporation and Sears Roebuck and Co., Inc.
damaged, and plaintiff was otherwise damaged."
(Compl. 1 152.)
OPINION AND ORDER
The facts, assumed to be true for purposes of this
SOTOMAYOR, District Judge.
motion, are that:
At some time prior to November 11, 1994 the
In this diversity action, plaintiff alleges that she
plaintiff Barbara Haybeck became a customer of
contracted the HIV virus from Jacob Jacks
the defendant Prodigy. Prodigy sold time on their
(hereinafter "Jacks"), [FNI] an employee of
computer service and Barbara bought same. Jacob
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944 F.Supp. 326
Page 3
(Cite as: 944 F.Supp. 326, *328)
Jacks was an employee of Prodigy. Mr. Jacks
A district court's function on a motion to dismiss
was & sexual predator who had full blown AIDS. a
under Fed.R.Civ.P. 12(b)(6) is to assess the legal
fact known and admitted by Prodigy
feasibility of the complaint. Kopec V. Coughlin,
By using his position as an employee of Prodigy.
922 F.2d 152, 155 (2d r.1991). The issue "is not
Jacks was able to spend countless hours on-line
whether a plaintiff will ultimately prevail, but
with plaintiff while he was at work at Prodigy's
whether the claimant is entitled to offer evidence to
offices. In addition, Jacks gave plaintiff months
support the claims." Scheuer V. Rhodes, 416 U.S.
of "free time" on the Prodigy network, as well as
232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90
unlimited use of his own Prodigy account. The
(1974). Allegations contained in the complaint must
motive for this conduct was solely to entice
be construed favorably to the plaintiff. Walker V.
Barbara Haybeck, by any means necessary, into an
New York, 974 F.2d 293, 298 (2d Cir. 1992), cert.
illicit and aberrant relationship that resulted in her
denied, 507 U.S. 961, 113 S.a. 1387, 122 L.Ed.2d
having a consensual sexual relationship with
762 (1993). Dismissal *329 is warranted only
Jacks. Both before and during this relationship.
where "it appears beyond doubt that the plaintiff can
Jacks repeatedly denied having AIDS. Thereafter,
prove no set of facts in support of his claim which
and as a direct result of this sexual relationship,
would entitle him to relief." Ricciuti V. N.Y.C.
Barbara Haybeck contracted AIDS-from which
Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)
she will die.
(quoting Conley V. Gibson, 355 U.S. 41, 45-46, 78
(Pl.'s Mem. at 4-5.)
S.Ct. 99. 101-02, 2 L.Ed.2d 80 (1957) (footnote
omitted)).
Plaintiff contends that Prodigy "should have taken
special precautions to prevent" Jacks' conduct.
In considering a Rule 12(b)(6) motion, a court
(Compl. 1 150) Plaintiff also insists that her injuries
must look to: (1) the facts stated on the face of the
were "due solely to the negligence, carelessness,
complaint; (2) documents appended to the
recklessness and gross negligence of the defendants
complaint; (3) documents incorporated in the
in their ownership, operation, management, repair
complaint by reference; and (4) matters of which
and control of their agents, servants, employees and
judicial notice may be taken. Hertz Corp. V. City of
their on-line network and through no fault of lack of
New York, 1 F.3d 121, 125 (2d Cir.1993) (citing
care on the part of the plaintiff." (Compl. 1 151.)
Allen V. WestPoint-Pepperell, Inc., 945 F.2d 40, 44
(2d Cir. 1991)). See also Samuels V. Air Transport
Defendant argues, however, that Prodigy is not
Local 504, 992 F.2d 12, 15 (2d Cir. 1993) (same).
responsible for plaintiff's contraction of the AIDS
In this case, I take judicial notice of the facts alleged
virus from Jacob Jacks because Jacks' sexual
in plaintiff's affidavit submitted in opposition to the
intercourse with plaintiff fell outside the scope of his
instant motion because the facts explain the
employment. Further, it maintains that Prodigy
predicate for plaintiff's cause of action.
owed no duty to plaintiff to "[i]avolve itself in her
personal or sexual conduct," (Def.Mem. at 17).
1. Scope of Employment
because Prodigy was forbidden by law and public
policy either to inquire into Jacks' HIV status or to
[1] The central issue in this case is whether Jacob
control his relations with persons outside the work
Jacks' failure to disclose his HIV status before
environment. (Def.Mem. at 18-21.) Defendant
having sexual intercourse with the plaintiff was
also contends that plaintiff's consent to the sexual
conduct which can be deemed to fall, as a matter of
union was an "unforesecable superseding act" which
law, within the scope of his employment with
"absolve[s]" Prodigy of "any possible liability."
Prodigy. I understand that "because the
(Def.Mem. at 22). Finally, defendant urges that
determination of whether a particular act was within
plaintiff cannot satisfy the jurisdictional threshold of
the scope of the servant's employment is so heavily
$50,000 required for diversity jurisdiction because
dependent on factual considerations, the question is
she accepted a contractual limitation of liability with
ordinarily one for the jury." Riviello V. Waldron,
Prodigy that limits her recovery to an amount below
47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391
the threshold. (Def.Mem. at 24-25.)
N.E.2d 1278 (Ct.App.1979). However, where a
court takes as true all the facts alleged by plaintiff
DISCUSSION
and concludes that the conduct complained of cannot
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LINTON LIBRARY PHOTOCOPY
944 F.Supp. 326
Page
4
(Cite as: 944 F.Supp. 326, *329)
be considered as a matter of law within the scope of
matter wholly personal in nature, the nature of
employment, then the court must dismiss the
which is not job-related, his actions cannot be said
complaint for failure to state a claim. See, e.g.,
to fall within the scope of his employment.'
Rappaport V. International Playtex Corp., 43
Longin V. Kelly, 875 F.Supp. 196, 201-203
A.D.2d 393, 352 N.Y.S.2d 241 (3d Dep't.1974)
(S.D.N.Y.1995) (quoting Stavitz V. City of New
(reversing lower court for failing to dismiss where
York, 98 A.D.2d 529, 531, *330 471 N.Y.S.2d
conduct fell outside of the scope of employment as a
272, 274 (1st Dep't 1984)); see also Joseph V. City
matter of law); cf. Petrousky V. United States, 728
of Buffalo, 83 N.Y.2d 141, 146, 608 N.Y.S.2d
F.Supp. 890 (N.D.N.Y.1990) (holding as a matter
396, 629 N.E.2d 1354 (Ct.App.1994) (police
of law that plaintiff's supervisor was acting within
officer not acting within the scope of his
the scope of his employment when he libeled
employment when he left a service revolver where a
plaintiff in disciplinary memoranda).
child found it, even where a municipal law required
the officer to have the gun nearby for emergencies);
[2] In considering whether a particular act falls
Kelly V. City of New York, 692 F.Supp. 303, 308
within an employee's scope of employment, New
(S.D.N.Y.1988) (city not liable for assault by city
York courts look to five factors:
corrections officer where "[i]t is undisputed that the
[1] the connection between the time, place and
incident arose from a prior personal dispute");
occasion for the act, [2] the history of the
Forester V. State, 645 N.Y.S.2d 971 (Ct.Claims
relationship between employer and employee as
1996) (state not responsible where SUNY instructor
spelled out in actual practice, [3] whether the act
assaulted student, even where the "acts occurred on
is one commonly done by such an employee, [4]
school property and during school hours").
the extent of departure from normal methods of
performance; [5] and whether the specific act was
In cases specifically involving sexual misconduct
one that the employer could reasonably have
by employees, New York courts have carefully
anticipated.
avoided extending liability to employers. See, e.g.,
Riviello V. Waldron, 47 N.Y.2d 297, 302, 418
Joshua S. V. Casey, 206 A.D.2d 839, 615 N.Y.S.2d
N.Y.S.2d 300, 391 N.E.2d 1278 (Ct.App.1979).
200 (4th Dep't 1994) (holding that a priest's sexual
Here, defining carefully the precise act which is the
abuse of a child was, as a matter of law, not within
subject of the complaint is crucial. To that end, it
the scope of employment); Kirkman V. Astoria
must be noted that plaintiff does not complain of
General Hospital, 204 A.D.2d 401, 611 N.Y.S.2d
Jacks' sexual relationship with her, but rather she
615 (2d Dep't 1994) (hospital security guard who
complains of his failure to tell her that he was HIV
raped a minor child was not acting within the scope
positive and to engage in protected sex. In fact,
of his employment): Koren V. Weihs, 190 A.D.2d
plaintiff admits that she fully consented to the sexual
560, 593 N.Y.S.2d 222 (1st Dep't 1993)
union. Plaintiff insists, however, that had she
(psychotherapist who had sex with patient under the
known Jacks was HIV positive, she would never
guise of treatment was not acting within the scope of
have consented to having sex with him. Hence, the
his employment); Noto V. St. Vincent's Hospital,
core of plaintiff's complaint is that Jacks' failure to
160 A.D.2d 656, 559 N.Y.S.2d 510 (1st Dep't)
give her this information caused her injury, and it,
(plaintiff "failed to allege facts on which the
therefore, is the proper focus of the scope of
existence of a viable claim could be predicated"
employment inquiry.
where she complained that her psychiatrist "engaged
in sexual relations with her after she had been
[3] Can it be said, then, that Jacks was acting
discharged, and after he had ceased treating plaintiff
within the scope of his employment with Prodigy
as his patient"), appeal denied, 76 N.Y.2d 714, 564
when-outside the place of employment-he decided
N.Y.S.2d 718, 565 N.E.2d 1269 (Ct.App.1990);
to conceal his HIV status from, and have
Heindel V. Bowery Savings Bank, 138 A.D.2d 787,
unprotected sex with, a sexual partner? I conclude
525 N.Y.S.2d 428 (3d Dep't 1988) (mall security
the answer is no. Courts have repeatedly held that
guard's rape of fifteen year old girl "was in no way
acts taken and decisions made on an employee's
incidental to the furtherance of [the employer's]
personal time outside of work cannot be imputed to
interest" and was "committed for personal motives"
an employer. "New York courts have stated that
and was "a complete departure from the normal
'where an employee's conduct is brought on by a
duties of security guard."); Cornell V. State, 60
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944 F.Supp. 326
Page S
(Cite as: 944 F.Supp. 326, *330)
A.D.2d 714, 401 N.Y.S.2d 107 (3d Dep't 1977)
International Playtex Corp., 43 A.D.2d 393, 397,
("homosexual attack" committed by attendant at
352 N.Y.S.2d 241, 246 (3rd Dep't 1974) (in
mental institution upon a patient was "obviously
automobile accident involving salaried company
neither within the scope of the attendant's
sales agent traveling to home of a girlfriend where
employment nor done in furtherance of his duties to
he intended to do employment-related paperwork,
his employer*).
court finds that sales agent was not acting within the
scope of employment and respondeat superior did
In Tomka V. Seiler Corp., 66 F.3d 1295, 1317
not apply). Here, even if Jacks' conduct arose in
(2d Cir.1995), the Court of Appeals held that "an
part out of his intent to further the business of
employer is not liable for torts committed by the
Prodigy in that his sexual relationship with plaintiff
employee for personal motives unrelated to the
began on line and arguably encouraged plaintiff to
furtherance of the employer's business." In that
use more Prodigy services, there is no "business
case, plaintiff had been to a business dinner with
purpose" which "alone" would have compelled Jacks
several supervisors and co-employees when the
either to have sex with plaintiff or to hide from her
group became highly intoxicated and a supervisor
the fact that he had AIDS.
later sexually assaulted her. The Court viewed the
assault as "a complete departure from the normal
Therefore, considering the factors outlined in
duties of a Seiler employee." Tomka, at 1318. In
Riviello, I find, as a matter of law, that Jacks'
the instant case, the imposition of respondeat
failure to reveal his HIV status before having sex
superior liability would be even more troubling
with plaintiff cannot be deemed to be within the
because even if the sexual activity at issue furthered
scope of his employment. There is no "connection"
Prodigy's business by increasing a customer's use of
in either "time, place, [or] occasion" between his
its services, as alleged by plaintiff, the true conduct
status as a Prodigy employee and his failure to
of which she complained is Jacks' failure to reveal a
reveal his medical condition to his sex partner. Any
private medical condition while engaging in an off-
"history of the relationship between [Jacks] and
duty, intimately personal act.
[Prodigy] as spelled out in actual practice" only
reveals at best, accepting plaintiff's allegations as
The purely personal decision by Jacks whether to
true, that Prodigy knew that Jacks had AIDS and
disclose a medical fact about himself cannot be said
that he was having sex with customers. It does not
to have furthered his employer's business. Rather,
reveal that Prodigy knew that Jacks was failing to
his decision to conceal his HIV status arose from a
inform his sex partners that he carried the AIDS
purely personal motivation. Therefore, just as New
virus or that Prodigy did more than remain silent in
York courts have held that assaultive behavior
the face of Jacks' conduct. Clearly Jacks' act,
arising from personal motivations do not further an
whether it was his sexual conduct or his failure to
employer's business, even where it is committed
reveal his medical condition, cannot be considered
within the employment context, see c.g., Heindel V.
"one commonly done by such an employee"-there is
Bowery Savings Bank, 138 A.D.2d 787, 525
no allegation that technical advisors in positions
N.Y.S.2d 428 (3d Dep't 1988) (mall security
such as Jacks' commonly have sex with customers or
guard's rape of fifteen year old girl "was in no way
failed to reveal the fact that they carried
incidental to the furtherance of [the employer's]
communicable diseases. Finally, Jacks' conduct was
interest" and was "committed for personal motives"
obviously a "departure from normal methods of
and was "a complete departure from the normal
performance," and even if Prodigy knew that Jacks
duties of security guard."), so here must I conclude
was having sex with customers, it could not
as a matter of law that Jacks' concealment of his
"reasonably have anticipated" that Jacks was doing
HIV status arose from personal motivation and
so without revealing his medical condition. See
cannot be considered as within the scope of his
Riviello V. Waldron, 47 N.Y.2d 297, 302, 418
employment.
N.Y.S.2d 300, 391 N.E.2d 1278 (Ct.App. 1979).
One New York court has found that where "the
As an additional consideration, I note that by
business purpose alone would not have" prompted
imposing respondeat superior liability on an
the conduct complained of, there *331 can be no
employer in a case such as this, I would be setting a
finding of employer liability. See Rappaport V.
precedent under which employers would be forced
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LINTON LIBRARY PHOTOCOPY
944 F.Supp. 326
Page 6
(Cite as: 944 F.Supp. 326, *331)
to monitor, and in some cases control, not only the
Kirkman V. Astoria General Hospital, 204 A.D.2d
health of their employees, but also the most intimate
401, 611 N.Y.S.2d 615 (2d Dep't 1994) (citing
aspects of their off-duty lives. Such monitoring
Detone V. Bullit Courier Service, Inc., 140 A.D.2d
would contravene clear law and public policy that
278, 279, 528 N.Y.S.2d 575 (1st Dept. 1988)).
prohibits employers from inquiring into the HIV
Here, plaintiff contends that even if Prodigy is not
status of employees and attempting to control their
vicariously liable for Jacks' conduct, it is
off-duty behavior with others. See Americans with
nevertheless liable for its negligent hiring and
Disabilities Act, 42 U.S.C. § 12101 et seq.
retention of him as an employee whom they knew to
(prohibiting discrimination in the workplace based
be infected with AIDS and having sex with Prodigy
upon an employee's health condition); N.Y.Exec
customers. (Compl. at 11 155-169).
Law $ 296 (prohibiting discrimination against
persons because of their disability); Whalen V. Roe,
[5] What plaintiff fails to allege, however, is that
429 U.S. 589, 599, 97 S.A. 869, 876, 51 L.Ed.2d
Prodigy knew that Jacks was having unprotected sex
64 (1977) (explaining that within the constitutional
with customers without informing them that he
right to privacy there is an "individual interest in
carried the AIDS virus. This is a critical distinction
avoiding disclosure of personal matters"); Griswold
because it was not Jacks' having AIDS nor Jacks'
V. Connecticut, 381 U.S. 479. 85 S.C. 1678, 14
having sex with customers which was tortious under
L.Ed.2d 510 (1965) (recognizing a right of privacy,
the law. Rather, it was Jacks' having unprotected
particularly in matters of sexuality); Doe V. City of
sex with others without informing them that be was
New York, 15 F.3d 264, 267 (2d Cir.1994) (
HIV positive that plaintiff argues is tortious.
"Clearly, an individual's choice to inform others
Compare Maharam V. Maharam, 123 A.D.2d 165,
that she has contracted what is at this point
510 N.Y.S.2d 104 (1st Dep't 1986) (holding that
invariably and sadly a fatal, incurable disease is one
"wife stated legally cognizable causes of action
that she should normally be allowed to make for
[against husband] for wrongful transmission of
herself. This would be true for any serious medical
genital herpes on theories of either fraud or
condition, but is especially true with regard to those
negligence") and Doe V. Roe, 157 Misc.2d 690, 598
infected with HIV or living with AIDS, considering
N.Y.S.2d 678 (Justice Ct.1993) (explaining that
the unfortunately unfeeling attitude among many in
"New York recognizes a cause of action for
this society toward those coping with the disease.");
intentional or negligent communication of a venereal
Doe V. Kohn Nast & Graf, P.C. 866 F.Supp. 190
disease") with id. 598 N.Y.S.2d at 693 (dismissing
(E.D.Pa.1994) (law firm prohibited from searching
action, inter alia, because "persons who engage in
plaintiff's office upon suspicion that he had AIDS).
unprotected sex, at a time of the prevalence of
Given the legal and policy limitations on an
sexually transmitted diseases, including some that
employer's ability either to control the off-duty
are fatal, assume the risk of contracting such
conduct of its employees or to disclose the medical
diseases. Both parties in an intimate relationship
conditions of its employees, 1 find as a matter of law
have a duty adequately to protect themselves. When
that Prodigy cannot be held liable for the non-
on ventures out in the rain without an umbrella,
disclosure off-duty conduct of its employee, even if
should they complain when they get wet?").
it acquiesces in the conduct by accepting the benefit
Because plaintiff here has not, and presumably
of increased customer use of its services from that
cannot, allege that Prodigy knew that Jacks was
employee's sexual activity.
concealing his HIV status from his sex partners or
was having unprotected sex with them, plaintiff
*332 II. Prodigy's Negligent Hiring and Retention
cannot argue that Prodigy's hiring or retention of
of Jacks
Jacks was negligent. See Kirkman V. Astoria
General Hospital, 204 A.D.2d 401, 403, 611
[4] Even where an employee does not act within
N.Y.S.2d 615, 616 (2d Dep't), leave to appeal
the scope of his employment, "an employer may be
denied, 84 N.Y.2d 811, 622 N.Y.S.2d 913, 647
required to answer in damages for the tort of an
N.E.2d 119 (Ct.App.1994) (employer not liable for
employee against a third party when the employer
negligent hiring or retention of mall security guard
has either hired or retained the employee with
who raped a customer where there was no showing
knowledge of the employee's propensity for the sort
that the employer had any knowledge of employee's
of behavior which caused the injured party's harm."
propensity or history of such misconduct); Cornell
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TL INTON LIBRARY PHOTOCOPY
944 F.Supp. 326
Page 7
(Cite as: 944 F.Supp. 326, *332)
V. State, 60 A.D.2d 714, 401 N.Y.S.2d 107 (3d
Dep't 1977) (holding that where "nothing in the
record indicates that the [employer] either knew or
should have known of [the employee's] alleged
dangerous homosexual tendencies," no liability for
negligent hiring or retention of the employee could
be found), aff'd, 46 N.Y.2d 1032, 416 N.Y.S.2d
542, 389 N.E.2d 1064 (Ct.App.1979).
[6] Further, under New York law, when an
employee's conduct is beyond the scope of
employment, an employer's duty to third parties to
prevent misconduct "is limited to torts committed by
employees on the employer's premises or with the
employer's chattels. D'Amico V. Christie, 71
N.Y.2d 76, 87, 524 N.Y.S.2d 1. 6, 518 N.E.2d
896 (Ct.App.1987). Here, the conduct complained
of, whether it is the act of sex or Jacks' failure to
disclose his HIV status, unquestionably took place
outside the employer's premises and without the
employer's chattels.
CONCLUSION
For the reasons discussed above, defendant's
motion to dismiss for failure to state a claim is
GRANTED, and the Clerk of the Court is directed
to enter judgment in Defendant Prodigy's favor,
dismissing the complaint with prejudice. [FN3] The
Clerk of the *333 Court is also directed to dismiss
the action against Jacob Jacks without prejudice
pursuant to Fed.R.Civ.P. 4(m) in that plaintiff has
not served Jacks within the 120 days specified by
the rule and has failed to demonstrate cause for such
failure.
FN3. In light of my finding that the action is
dismissed for failure to state a claim, I do not reach
Prodigy's argument that plaintiff cannot meet the
threshold jurisdictional amount for diversity
jurisdiction.
so ORDERED.
END OF DOCUMENT
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of g ift.
financial Institutions |(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
220 1(3).
concerning wells [(b)(9) of the FOIA] I
RR. Doc unent will be reviewed upon request.
INTONJ IBRARY
T:
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001b. form
re: Waiver - Sotomayor (2 pages)
04/15/1997
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12689
FOLDER TITLE:
Sotomayor - ABA Final [2]
2009-1007-F
jp 1522
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information |(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
an agency ((b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute ((b)(3) of the FOIA)
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy |(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes I(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIAL
RR. Document will be reviewed upon request.
CLINTON LIBRARY PHOTOCOPY
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001c. form
re: Fingerprints - Sotomayor (1 page)
04/15/1997
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12689
FOLDER TITLE:
Sotomayor - ABA Final [2]
2009-1007-F
jp1522
RESTRICTION CODES
Presidential Records Act - |44 U.S.C. 2204(a)]
Freedom of Information Act - 15 U.S.C. 552(b)]
PI National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency |(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
financial information [(a)(4) of the PRA)
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy ((a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions |(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells ((b)(9) of the FOIA]
RR. Document will be reviewed upon request.
CLINTON LIBRARY PHOTOCOPY
75
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001d. form
re: Waiver - Sotomayor (1 page)
02/28/1997
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Doug Band
OA/Box Number: 12689
FOLDER TITLE:
Sotomayor - ABA Final [2]
2009-1007-F
jp1522
RESTRICTION CODES
Presidential Records Act - |44 U.S.C. 2204(a)|
Freedom of Information Act - [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information ((b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
an agency ((b)(2) of the FOIA)
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute ((b)(3) of the FOIA]
financial information |(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information l(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA)
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
220 1(3).
concerning wells I(b)(9) of the FOIA]
RR. Doc ument will be reviewed upon request.
CLINTON LIBRARY PHOTOCOPY