WASHINGTON UNDERGRADUATE LAW REVIEW

ARTICLES Democratic Compliance with Decisions of the International Court of Justice Internet Contracts: A History of Browsewrap and Click-wrap Contracts Struggling to Adapt: Climate Change, the Clean Air Act, and Citizen Suit Standing Legal Sociology and Equality Before the Law: The Implications of Legal Variance due to Social Factors The Rooney Rule: A Soft Affirmative Action with Tremendous Results

Catherine Bratic

Gabriel Herman

Wyatt Sassman

Michael Sharp

William Shotzbarger

VOLUME IV

AUTUMN 2010

ISSUE I

Masthead
Editor-in-Chief
Teresa A. Teng

Executive Editors
Brooke E. Howlett Emma L. Mayberry Emilee A. Sahli Vanessa M. Stone

Senior Editors
Lisa Castillo Kevin Crozier Tiffany Chu Bernard Ellouk Rachel Greenlee Ashley Lindsey Jessica Louie Daniel Riojas Alison Tong

Associate Editors
Sara Alavi Alicia Arnold Marie Curatolo Scott Hardy Tak Matsushita Clair Phillips

Volume IV

Autumn 2010

Issue 1

ARTICLES

Democratic Compliance with Decisions of the International Court of Justice

By Catherine Bratic*
Although traditional compliance theory predicts higher rates of compliance with international law in democracies, studies of compliance with decisions of the International Court of Justice does not uphold such a correlation. However, the two areas of study can be reconciled by considering how a democratic leaders political posturing in the lead-up to the ICJs ruling can polarize or tame a domestic electorate, greatly influencing a countrys ability to offer concessions required to comply with the final decision. While leaders who engage with and encourage a divisive political atmosphere appear unable to backtrack from this politicization without risking an electoral backlash, it is also observed that leaders who seem willing to offer concessions toward dispute resolution can prime their electorates to accept a third-party resolution of a dispute.
* Catherine Bratic is a first-year law student at Columbia Law School. She graduated in May 2010 from Rice University, where she majored in political science and French studies. She plans to practice law in multiple international jurisdictions, focusing on the European and American relationship and its implications for both governmental and private sector actors.

WULR Vol VI, Issue I Autumn 2010

Table of Contents INTRODUCTiON.................................................................................2 I: HiSTORY OF ThE ICJ AND COMPLiANCE WiTh ITS JUDGMENTS...................4 II: CONTRiBUTiONS OF TRADiTiONAL COMPLiANCE RESEARCh............6 III: COMPLiANCE SPECiFiC TO ThE ICJ................................................11 IV: ARGUMENT..................................................................................13 V: HYPOThESES.................................................................................14 VI: DESiGN.......................................................................................15 VII: DATA.........................................................................................16 VIII: ABBREviATED CASE STUDiES...................................................20 C ONCLUSiON .........................................................................31

INTRODUCTiON Trends of compliance with the rulings of the International Court of Justice, the United Nations court with jurisdiction to resolve disputes among member states, pose a perplexing subject of study. Although compliance patterns for this world court conform in many ways to traditional theories about state compliance with international law, compliance with the International Court of Justice (ICJ) has also bucked trends on some issues, confounding researchers and escaping a complete explanation. The gaps in comprehension that exist so far indicate that the current understanding of why states choose to comply with or defy ICJ judgments is limited. One area that is particularly puzzling in current research is the role of democracy in influencing compliance levels. Although traditional compliance research has consistently shown that democratic states are more likely to comply with international law, ICJ compliance histories have not reflected this correlation. This

3 Bratic paper puts forward a theory that could explain why democracies do not necessarily exhibit higher compliance levels than nondemocracies. In short, the unique domestic pressures which democratic leaders are subject to under electoral patterns change the considerations that leaders make when deciding whether or not to comply with an ICJ judgment. A leaders political posturing in either a hostile or favorable direction prior to the decision of a case may irrevocably commit a leader to action before the final judgment is even issued. Traditional theories of compliance with international law do not necessarily extend themselves to ICJ compliance issues. Other studies have found democracies to be more likely to comply with international law than autocracies are. In the case of the ICJ, democratic predictors do not apply; a democratic regime does not predict higher levels of compliance with ICJ rulings. However, other findings of traditional compliance theory can still be useful as explanatory factors here. Due to the fact that the relationship between these two fields is complex, it is important to first understand the unique questions posed over ICJ compliance. Once laid out, this paper will consider the ways in which traditional compliance theory can contribute to the debate, and in what ways its findings must be disregarded in oarder to examine other criteria that impact ICJ compliance levels. It is found, in fact, that basic theory of compliance law continues to be able to offer much insight to behavior in response to ICJ judgments. Although initial democratic determinants do not hold true in this case, the behavior of democratic leaders that weigh domestic electoral concerns when acting internationally offers an explanation of why the behavior of democratic states is not so easily predictable. Two hypotheses about disparate behavior of democratic leaders will be examined. First, there are those democratic leaders who seek to engage with an electorate whose heated emotions have led them to solidly espouse a radicalized view of the debate. In a second category are those democratic leaders who try to distance themselves from any such domestic groups by presenting and fostering a favorable view of the Court that lends itself to the

WULR Vol VI, Issue I Autumn 2010 4 offering of future concessions that compliance might require. In this paper, it is hypothesized and found to be the case that leaders who find themselves in the former situation are more likely to defy the Courts judgments, while leaders in the latter cases comply more often, more fully, and more eagerly. Also encountered throughout this papers research was an unanticipated third set of cases, which are marked by the absence of a polarized electorate, and one in which a leaders lack of public political rhetoric imply a tacit acceptance of the Courts activity. Taken together, these three findings allow reintegration of ICJ compliance theory with traditional knowledge of state compliance, and have the potential to inform measures intended to increase compliance with international law.

PART I: HiSTORY OF ThE ICJ AND COMPLiANCE WiTh ITS JUDGMENTS The International Court of Justice at The Hague has developed an exceptional track record since its inception in 1945. The Court, which is charged with settling legal disputes between states and offering advisory opinions on legal matters, has boasted high levels of compliance with its judgments, despite the contentious nature of its subject matter. All United Nations member states are automatically under the jurisdiction of the Court due to stipulations in the treaties they must sign to join the United Nations. Once party, states may call upon the Court to resolve disputes with other states through a number of paths. There are three procedural paths by which an issue or case may be brought to the ICJ. Under the first procedural path, two states willingly present themselves before the Court, seeking resolution of a conflict. This first approach is typically considered to be most highly associated with compliance, as states voluntarily accept the Courts jurisdiction. The second procedure through which cases can be put before the ICJ is clausal stipulation of compulsory ICJ jurisdiction in international treaties. Although the inclusion of such clauses is becoming less common as it is replaced by civil arbitration clauses that favor private civilian forums rather than governmental

5 Bratic ones, such cases still provide regular material for the ICJ. Lastly, the ICJ can be called upon by states to provide advisory opinions on legal issues. Although compliance with these opinions is not compulsory, their acceptance reflects the states view of the wisdom and impartiality of the Court. As is inevitable in all contentious issues, states may frequently find themselves subject to ICJ decisions with which they disagree or which are in some way viewed as unfavorable to the state. Historically, states receiving such judgments from the ICJ have still exhibited relatively high compliance levels, suggesting the existence of a more complex calculation on the part of the state than simply immediate self-interest. Enforcement of ICJ judgments is notably difficult. The United States withdrew from the ICJs compulsory jurisdiction in 1987. Rejection of the Courts authority by such a major world power has weakened the Courts reputation and influence.1 Furthermore, the Court lacks robust, independent monitoring and enforcement mechanisms to reinforce its judgments, relying instead on the arguably weak and political United Nations Security Council for such ends. In cases of binding judgments, failure to comply can result in reprimands and sanctions doled out by the UN Security Council. However, the Council is a non-neutral body, and one members veto can prevent enforcement actions from proceeding. The reality is that most states have no reason to fear that they will be subject to sanctions if they fail to comply immediately and fully with an ICJ decision; the Council has not made it a practice to monitor compliance in the post-adjudication phase, much less to go about determining culpability and penalties. Given this background, it is surprising that the Court has enjoyed very high compliance levels in response to its judgments and even its non-binding advisory opinions. Most estimates place compliance levels with binding rulings above eighty percent.2 Such a figure should be unexpected, given that states face no negative (namely, punitive) incentives to abide by decisions.
1 Colter Paulson, Compliance with Final Judgments of the International Court of Justice Since 1987, 98 Am. J. Intl L. 434-461 (2004). 2 Contanze Shulte, Compliance with Decisions of the International Court of Justice (2004).

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ICJ compliance poses two particular and complementary dilemmas. The first is the question of why states ever comply with ICJ judgments, considering the almost complete absence of enforcement mechanisms. The second question posed, which acts as the impetus for this papers research, is that of why states ever defy ICJ judgments, given that they have agreed in advance to be subject to the Courts jurisdiction. Why would a state willingly refer a case to the ICJ, only to defy the decision once it is reached? Though it is around this second question that this paper is centered, it cannot be considered in absence of its stated counterpart. PART II: CONTRiBUTiONS OF TRADiTiONAL COMPLiANCE RESEARCh Traditional compliance theory has focused on a limited number of reasons why states might be motivated to comply with international law. These explanations can be applied to both of the previous questions: why states comply with judgments and why they defy them. When the conditions of compliance theory motives are met, states are presumed to have motives to comply, and when the conditions are not met, states are presumed to have motivation to defect. Traditional compliance theory is useful to first consider here because it has proposed and presented consistent findings that offer solid explanations of when states comply with international law. Many of these explanations also apply to the ICJ. However, in the realm of correlations between democratic forms of governance and compliance, there is a sharp divergence. The examination of traditional compliance theory and the extent to which it can be applied to the ICJ offer suggestions for how the democratic paradox of compliance can be understood. Markus Burgstaller, a scholar of international law and a legal adviser to Austria, advances three reasons that might drive states to obey international law. Perhaps the most basic reason is out of fear of punishment.3 If defiant behavior is subject to sanctions whose costs would exceed the immediate benefits of defecting from an agreement or flouting an international ruling, the state may still be
3Markus Burgstaller, Amenities and Pitfalls of a Reputational Theory of Compliance with International Law, 76 Nordic J. Intl L. 39-71 (2007).

7 Bratic reflecting its own self-interest when it complies. However, this is not a likely motivation in the case of the ICJ, as shown by the fact that mechanisms for enforcing its judgments are virtually nonexistent. Burgstallers second rationale for obedience is that a state may hold the belief that compliance is in its best interest. Though this evaluation has many facets, it is essentially based around the realist perspective that states are rarely induced to behave in ways that do not correlate with their own best interests and those of the most powerful states. Professor George Downs of New York University; Professor David Rocke of the University of California Davis; and Peter Barsoom, a PhD student at Princeton University, take an extreme view of this theory, suggesting that states only enter into shallow agreements with which they already have motivation to comply.4 While this theory might explain why a state with a strong case would proceed to the ICJ, it is certainly not a compelling explanation of compliance with all cases that are found before the ICJ. After all, by nature, every case must have a winner and a loser, so not all states can consistently receive favorable judgments. The very fact that there are losers in ICJ rulings proves Downs, Rocke, and Barsooms assertions do not provide a complete explanation of the behavior observed. Another variation, deeply rooted in the theory that states always act in their own rational interest, revolves around game theory. Although states may have material incentives to defect from their obligations under international law, they may view that it is in the overall best interest of themselves and the international community as a whole if everyone abides by their commitments, even when the immediate effects of this compliance are negative. Because the UN is the basis for the ICJ, states have a reasonable expectation that they will often interact with the international community after the case has concluded. This demonstrates what James Fearon, a political science professor at Stanford, would call a large shadow of the future.5 The more likely a states future interaction in a community
4 George W. Downs, David M. Rocke & Peter N Barsoom, Is the Good News About Compliance Good News About Cooperation? 50 Intl Org. 379-406 (1996). 5 James D. Fearon, Bargaining, Enforcement, and International Cooperation, 52 Intl Org. 269305 (1998).

WULR Vol VI, Issue I Autumn 2010 8 is, the greater the incentive that the state has to maintain a good standing in that organization. Since the enforcement mechanisms of international law are horizontal rather than vertical that is to say that punishments are doled out by other states more often than by supranational organizations reputational concerns are of increased salience. Andrew Guzman, a professor at the University of California Berkeley School of Law fully develops a theory of how reputational concerns impact the decision to abide by international commitments, concluding: If a country violates international law, other states may refuse to enter into future agreements, demand greater concessions when entering into such agreements, or lose faith in the strength of existing agreements.6 Reputational concerns are not a sufficient motivating factor in all decisions, however, as evidenced by occasional defections. Burgstaller finds that these incentives only act at the margins of the decision to defect or not. When stakes are higher and states have significant inducements to defect based on their own rational and material self-interest, reputational concerns are simply not enough. But reputational concerns are always a factor to some degree. In a study of the USs historical decision-making processes, Professor Michael Scharf of Case Western Reserve University School of Law finds a distinct reliance on international law as real legal doctrine, in a partial rejection of realism. The United States has been historically defiant toward the ICJ, so its motivations are particularly relevant. Scharf recounts how even in cases that terminated in noncompliance, reciprocity and reputational costs of non-compliance were given great consideration.7 The case may be then, as Guzman believes, that although reputational concerns are constantly in play, the stakes of certain disputes may be too high to be affected by these considerations.8 These high-stakes issues are the ones which most interest the study of compliance with ICJ judgments. Low-stake and lowsalience issues have no compelling reason to incite defection. (As
6 Andrew Guzman, A Compliance-Based Theory of International Law, 90 Cal. L. Rev. 18231887 (2002). 7 Michael Sharf, International Law in Crisis: A Qualitative Empirical Contribution to the Compliance Debate, 31 Cardozo L. Rev. 45-97 (2009). 8 Guzman, supra note 6.

9 Bratic illustrated by this very research, there are cases where the low domestic investment in the dispute made no compelling demands upon leaders to engage in any way other than the tacit expression of complicity.) Researchers of the Court find themselves examining, over and over, the cases in which the issue was just too important for a country to give in and comply with an unfavorable ICJ ruling. Lastly, Burgstaller says states may fully ignore a calculation of whether defection would serve their interests because the norm of conforming to international law has become internalized within the state. When fear of sanctions or a damaged reputation are not enough to motivate compliance, states may nonetheless choose to comply with a ruling because the norms of international law have been accepted and incorporated into the national psyche. International cooperation scholar Judith Kelleys analysis of states responses to the US demand for a nonsurrender agreement attached to the International Criminal Court provides proof that the jurisdiction of international courts has been embraced as a norm in the international community.9 In devising the implementation of this agreement, the US approached other countries, pressuring them to sign an agreement to refrain from surrendering American citizens to international courts without US consent. The debates within each country approached by the US over whether or not to sign are interesting because they were based almost entirely on principles; the nonsurrender agreement was unlikely to be enforceable, so states would not hurt the Courts power by signing on. However, the vast majority of states refused, valuing the norm of international justice above their immediate self-interests of avoiding punishment from the US. Kelley shows that states valued adherence to commitments to the international court for their own sake, absent of any tangible benefits. This value, given to adherence itself, conforms perfectly with the traditional definition of a norm. 10 11 While this is unquestionably a valid proposition that is likely
9 Judith Kelley, Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements, 101 Am. Pol. Sci. Rev. 573589 (2007).  Robert Axelrod, An Evolutionary Approach to Norms, 80 Am. Pol. Sci. Rev. 10951111 (1986).  Martha Finnemore & Kathryn Sikking, International Norm Dynamics and Political Change, 52 Intl Org. 887-917 (1998).

WULR Vol VI, Issue I Autumn 2010 10 a factor in many ICJ compliance cases particularly the ones of states who routinely and unhesitatingly comply with ICJ judgments it fails to explain the cases of defection, where clearly norms are not internalized enough to ensure compliance. The cases of defiance that are examined are ones in which norms if they even exist in the states were clearly overruled by other considerations. More generally, the fundamental norm that governs states actions in international law is pacta sunt severanda, meaning that commitments must be fulfilled. International legal scholars Antonia Chayes and Abram Chayes find that states value policy continuity above all as the most efficient strategy.12 Any treaty that has been negotiated between states inherently represents each states national interests, as they are formed further in the negotiating process. Demonstrating continuity with these interests is useful both domestically in order to present an unwavering policy record as well as internationally, as states feel obligated to maintain good standing in international organizations by upholding their agreements. Assuming that these three influences are constant within a system, there is still an observable difference in compliance rates between democratic and non-democratic countries. Clearly there is something unique about a democratic state. These regimes are much more likely to cooperate with international law, and this correlation between cooperation and democratic governance has been found time and time again.13,14,15 Scholars have identified a handful of explanations for this correlation, namely the importance of rule of law, accountability, and domestic pressures within democracies. International legal scholar Brett Ashley Leeds has found that democracies are able to make more credible commitments in negotiation processes because they are held accountable by domestic interests that oppose any attempt to renege on past commitments.16
 Abram Chayes & Antonia Chayes, On Compliance, 47 Int. Org. 175-205 (1993).  James D. Morrow, When Do States Follow the Laws of War?, 101 Am. Pol. Sci. Rev. 559589 (2007).  Todd L. Allee & Paul K Huth, Legitimizing Dispute Settlement: International Legal Rulings as Domestic Political Cover, 100 Am. Pol. Sci. Rev. 219-234 (2006).  Brett Ashley Leeds, Alliance Reliability in Times of War: Explaining State Decisions to Violate Treaties, 57 Intl Org. 801-827 (2003). Id.

11 Bratic Similarly, American political scholar James D. Morrow has found that domestic interests can also exert considerable political pressure on leaders to comply with international norms. Because of their political structure, democracies tend to have a greater respect for the rule of law,17 and this domestically-established norm makes it politically costly for a leader to openly defy international agreements.18 International legal scholars Todd Allee and Paul Huth found this effect to often be overwhelming for a democratic leader, and suggested that there are cases in which a democratic leader would like to offer concessions but is constrained by the publics investment in the issue. In order to shelter oneself from domestic political backlash, a democratic leader may instead choose to offer the case up to an international court.19 Through their research, Leeds, Morrow, Allee and Huth offer a very clear picture of the different situations that democratic leaders face in the decision to comply. Yet like a few of the other findings of general compliance theory, this democratic conclusion cannot be easily extended to compliance with ICJ rulings. PART III: COMPLiANCE SPECiFiC TO ThE ICJ After being neglected by academics for many years, the study of compliance with international court judgments has recently begun to receive increased attention. Previous studies have been able to identify certain conditions that make compliance more likely. However, these studies have focused primarily on the conditions of the judgment rather than the conditions of the state. For example, one study by Colter Paulson, who has studied the ICJ extensively, showed that land boundaries (as opposed to maritime boundaries), questions of political strategy, and a history of armed conflict predict lower levels of compliance.20 Other research shows that joint referrals of cases by both parties are more likely to be
 Kelley, supra note 9.  Morrow, supra note 13.  Allee & Huth, supra note 14.  Paulson, supra note 1.

WULR Vol VI, Issue I Autumn 2010 12 complied with than if one state drags another before the Court.21 22 While the procedural path that a case takes to the ICJ docket has little effect on compliance levels,23 24 self-removal from the process once it has begun an outright refusal to participate in the proceedings is another early predictor of defiance.25 While research specific to the ICJ has delved more specifically into the intricacies of compliance particular to the Court, it has not offered a lot of solid conclusions. Certainly none of the findings that have emerged from this field are universally applicable. More importantly, none of these findings have even attempted to answer the question of why the established theory of higher levels of democratic compliance cannot be extended to the ICJ. Constanze Schulte, a scholar of the ICJ, has found that democratic states are no more likely to be receptive to unfavorable ICJ judgments.26 These findings are further supported by the work of Sarah McLaughlin Mitchell and Paul Hensel, two scholars of international cooperation.27 The lack of correlations found by Schulte and Mitchell and Hensel occur despite the fact that studies of compliance in general have found the type of government to greatly influence responses to legal rulings,28 and serve an important reminder of the way that ICJ judgment compliance records differ from compliance records of treaties and regulations. Unfortunately, the current analyses of domestic conditions fail to consider why a single state may comply with one ICJ judgment but not another, although its democratic status remains unchanged. Because a constant, democratic form of government is unable to explain this variation, other shifting domestic considerations must be examined, and the type of governance changes to a control variable.
 Schulte, supra note 2. ShABTAi ROSENNE, ThE LAW AND PRACTiCE OF ThE INTERNATiONAL COURT, 1920-2005: VOLUME I: ThE COURT AND ThE UNiTED NATiONS (Martinus Nijhoff Publishers 2006) (2006).  Paulson, supra note 1.  Aloysius Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of Justice,18 Eur. J. Intl. L. 815-853 (2008).  Schulte, supra note 2.  Schulte, supra note 2.  Sarah Mclaughlin Mitchell & Paul R. Hensel, International Institutions and Compliance with Agreement, 51 Am. J. Pol. Sci. 721737 (2007). X Xinyuan Dai, The Conditional Nature of Democratic Compliance, 50 J. Confl. Resol. 1-24 (2006).

13 Bratic Examining only the cases of democracies, where no predicting effect has been observed, the cases must be separated to find what factors do indeed distinguish the democratic leaders who choose to comply from the democratic leaders who do not choose to comply. States accepting the ICJs jurisdiction do not have full information about how their future interests will affect their ability or desire to comply, because their commitment is an agreement to be bound by any range of judgments that might occur at unspecified times and against unspecified parties. In this sense, compliance with the rule of the ICJ demands a lot from states. These states must agree to fully comply with any judgment the Court will make in the future, regardless of which country hales them before the Court or what judgment the Court will make. Without the full knowledge of the circumstances they will face, states must make a leap of faith in accepting the ICJs jurisdiction. PART IV: ARGUMENT In the selected cases of judgments which were unfavorable to the party not exhibiting full compliance, states clearly received a judgment that they were not hoping for. In cases of noncompliance, the threat of international punishment and reputational concerns were clearly not enough to induce compliance. Particularly in democracies, political leaders must think about domestic support for all of their actions. If leaders lose that domestic support, they risk losing political power and their offices. Under what conditions, then, will democratic leaders have domestic incentives to comply with an unfavorable judgment? According to international legal scholar James Fearon, a states prior posturing can exert one of the greatest influences on behavior.29 Fearon finds that backing down from prior rhetoric is surprisingly costly. In addition to the standard price that leaders must pay for concession on the issue itself, they also face additional costs: physical costs for any backtracking that must occur, such as the demilitarization of areas and the restoration of damaged bilateral
 James D. Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 Am. Pol. Sci. Rev. 577592 (1994).

WULR Vol VI, Issue I Autumn 2010 14 relations, and audience costs for engaging the national honor only to abandon it. When leaders raise an issue to national consciousness, clearly positioning the state in one direction or another, they give their opponents the chance to bemoan the loss of international face when they retreat from this position.

PART V: HYPOThESES This paper expects to find that, for leaders who have raised the particular dispute to the level of the national consciousness, retreating from the strong positions initially put forth in order to offer required concessions may be too costly to consider. The attitude of a states leader can have impressive effects on a countrys psyche as determined by the powerful electorate. Leaders particularly democratic ones can risk becoming so buried in political rhetoric that they are unable to backtrack from a combative stance in order to offer the concessions necessary for compliance. Hypothesis 1 (H1): States whose leaders have used extreme political rhetoric to tie their political reputations to the outcome of the dispute will be less likely to offer compliance to ICJ demands for concessions. The degree of political entrenchment can be measured by the leaders remarks, but also through material threats unrelated to the Court itself. If a leader has previously threatened military escalation of the conflict or has otherwise expressed that the state is willing to take any means necessary to defend its position, the leader may be said to be more politically entrenched in the conflict. This effect is ever the more increased if the leader has expressed hesitance in the ICJs discriminating abilities. Leaders are of course free to backtrack from combative or divisive remarks. However, they may risk their electoral backing when doing so, in an over-cooperation effect examined by political

15 Bratic 30 scientist Michael Colaresi. In fact, dovish leaders who are more willing to offer cooperation can be easily ousted by hawkish leaders who will not make such concessions, and can take advantage of a rally-round-the-flag effect to rouse support for both defection and political campaigns. Conversely, support for the ICJ may also prove to be an intractable position. Hypothesis 2 (H2): States whose leaders publicly express favorable views of the ICJ prior to the Courts judgment will be more likely to offer compliance. Democratic states are known for their tendency to have a greater regard for the rule of law. As previous general compliance studies have shown, norms make an important contribution to a countrys domestic views. If a leader has played up respect for the Court, publicly stating that the country in question holds the ICJ in high esteem and is willing to comply with the ICJs informed judgment in order to resolve a dispute, that leader may be both reflecting and enforcing domestic norms in his or her state. Posturing of this sort is just as powerful as the posturing of politicization, and leaders are likely to have an equally difficult time retreating from such remarks while preserving their domestic standing. One is then left with a variable that aims at the core of what the leader thinks of the Court: is his or her attitude respectful or defiant? Fortunately, the task at hand is not to determine the leaders true beliefs; rather, since this paper has hypothesized that leaders posture themselves in such a way as to cater to a specific domestic audience, it is only the leaders public remarks that must be considered in this regard. PART VI: DESiGN There is no official compendium of ICJ compliance data. Therefore, determining whether or not a state has complied with an ICJ judgment is a difficult process.31 Thankfully, researchers whose
 Michael Colaresi, When Doves Cry: International Rivalry, Unreciprocated Cooperation, and Leadership Turnover, 48 Am J. Pol. Sci. 555-570 (2004).  Schulte, supra note 2.

WULR Vol VI, Issue I Autumn 2010 16 work has preceded this paper have already analyzed individual cases to make this determination. This paper does not seek to impose any judgment over theirs, so it will combine and utilize both Paulson and Schultes analyses of historical data for determining compliance. The research put forth in this paper will expand upon these pronouncements by considering the difference between the cases of compliance and defiance already established. The majority of the data needed to make the distinctions needed to test H1 and H2 can be gained from a leaders public remarks. Since one can assume that the leader does indeed have a message to convey, the tone of that leader should be readily discernible. Rhetoric that is favorable to the Court expressing confidence in its judiciousness and reiterating the states eagerness to comply with the Court in order to receive a fair resolution of a conflict can be interpreted as preparing the electorate to accept the Courts legitimacy and offer any needed concessions. Through the examination of news reports, articles published around the time of the judgment, and public statements issued before and after the Courts ruling, this paper will verify whether cases of compliance and noncompliance differ according to the conditions of its hypotheses.

PART VII: DATA This paper has drawn from the cases and compliance studies performed by Schultz in Compliance with Decisions of the International Court of Justice, which include a full list of contentious cases that have come before the Court since it began its work in 1946 and which examined substantive legal issues and issued binding decisions. This paper determines that the only applicable international procedures to consider are those cases which demanded substantive compliance, and so eliminates cases which asked instead only that parties continue negotiations. Finally, as the hypotheses being considered relate only to the official responses of democratic states, the cases considered were further reduced to those in which the losing state was a democracy, as judged by data from the Polity IV data set, which measures the type of governance

17 Bratic 32 since 1800 in all world nations. The final set of fourteen cases is shown in Table 1.
Case Date States involved Rights of Nationals of the USA 1952 France (Morocco), USA in Morocco Ambatielos 1953 Greece, UK Minquiers and Ecrehos 1953 France, UK Sovereignty over Certain 1959 Belgium, Netherlands Frontier Land North Sea Continental Shelf 1969 Germany, Denmark, Netherlands Fisheries Jurisdiction 1974 UK, Iceland, FRG Delimitation of the Maritime 1984 Canada, USA Boundary in the Gulf of Maine Area Military and Paramilitary 1991 Nicaragua, US Activities in and against Nicaragua Land, Island, and Maritime 1992 El Salvador, Honduras Frontier Dispute MaritimeDelimitation 1993 Denmark, Norway Greenland and Jan Mayen Gabcikovo-Nagymaros Project 1997 Hungary, Slovakia Kasikili/Sedudu Island 1999 Botswana, Namibia LaGrand 2001 Germany, US Arrest Warrant of 11 April 2002 Belgium, DRC 2000 Table 1: Cases considered

In the majority of the cases, the ICJ issued a ruling which indicated a clear loser in the dispute, in which one state was required to make concessions that were either unilateral or significantly greater than those demanded of the other state.33 In a select few cases (Rights of Nationals of the USA in Morocco, Delimitation of the Maritime Boundary in the Gulf of Maine Area, Denmark, weak),
 Monty G. Marshall, Polity IV Project: Political Regime Characteristics and Transitions, 18002002, UNivERSiTY OF MARYLAND, COLLEGE PARK (2002), http://www.nd.edu/~mcoppedg/ crd/PolityIVUsersManualv2002.pdf.  The determination of the losing state was made after reading the judgments issued directly by the ICJ, which can be accessed at www.icj-cij.org/docket/index.php?p1=3&p2=2. 22 April 2010.

WULR Vol VI, Issue I Autumn 2010 18 the judgment weighed heavily enough on both parties that full and complete compliance could only be accomplished through the cooperation of the parties. In these cases, both sides are considered to be losers in the dispute, noting if one side was slightly more disadvantaged by the ruling. Actual compliance with the judgment was taken from Schultes case descriptions. Past studies of compliance show that a countrys response is best viewed not as a dichotomous measure of total compliance or outright defiance, but as a spectrum of cooperative behavior. However, such a measure is of course not conducive to a research endeavor such as the one at hand. As Paulson did in his studies of compliance, this paper includes a third option of medium compliance between high compliance and low compliance in order to balance these two extremes. The highest valuation was assigned to countries who immediately moved to comply fully with the judgment, and whose compliance was eventually fully achieved. The medium compliance level was assigned to countries that publicly stated their acceptance of the Courts judgment, but whose compliance was not fully achieved in a timely manner, due to either to problems of implementation or internal hesitance on the states part. Finally, the lowest compliance rating was assigned to countries that explicitly rejected the validity of the decision and/or made no efforts to comply with its terms. The compliance assessments for each of the losing states are shown in Table 2.
Case Rights of Nationals of the USA in Morocco Ambatielos Minquiers and Ecrehos Sovereignty over Certain Frontier Land North Sea Continental Shelf Loser Compliance level High High High High High Low High

France (USA) UK France Netherlands Denmark, Netherlands Fisheries Jurisdiction Iceland Delimitation of the Maritime Boundary in the US, Canada Gulf of Maine Area

Bratic
Military and Paramilitary Activities in and US against Nicaragua Land, Island, and Maritime Frontier Dispute El Salvador Maritime Delimitation Greenland and Jan Denmark Mayen (Norway) Gabcikovo-Nagymaros Project Hungary Kasikili/Sedudu Island Namibia LaGrand US Arrest Warrant of 11 April 2000 Belgium Table 2: Compliance by losing states Low Medium High Medium High Medium High

19

Finally, the leaders responses through publicly issued statements and other expressions of the countrys opinion of the Court were collected and measured. Whenever possible, these data were gathered through news reports that were published at the time of the dispute. This task was much more easily accomplished in recent cases, as the role of the international press has increased and been facilitated by increased technological exchanges. When news reports containing a leaders remarks were not available, papers written on the dispute and the Courts decision in the years surrounding the cases were referenced. This endeavor was limited in some respects by language barriers; coverage in English-language press often hinged on the publishing countrys interest in the countries involved in the dispute, and research did not extend to any foreign-language press. Contemporary references to historical cases were avoided in order to preserve the historical context as much as possible. The countrys official response has been assessed as either positive or negative in each case, for the purposes of simplification of measures. However, additional notes have been included and abbreviated case studies have also been produced in order to more fully communicate the variance and details of the position espoused.
Case Rights of Nationals of the USA in Morocco Ambatielos Compliance level High High Attitude of leader Support of court Support of court

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Minquiers and Ecrehos Sovereignty over Certain Frontier Land North Sea Continental Shelf Fisheries Jurisdiction

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High High High Low High Low Medium High Medium High Medium High Support of court Support of court Support of court Rejection of courts legitimacy Support of court Hostile to all International actions Support of court Support of court Pandering, hostile to resolution Support of court Indifference to proceedings Support of court

Delimitation of the Maritime Boundary in the Gulf of Maine Area Military and Paramilitary Activities in and against Nicaragua Land, Island, and Maritime Frontier Dispute Maritime Delimitation Greenland and Jan Mayen Gabcikovo-Nagymaros Project Kasikili/Sedudu Island LaGrand Arrest Warrant of 11 April 2000

Table 3: Compliance and attitude of leaders

PART VIII: ABBREviATED CASE STUDiES34 1. Rights of Nationals of the United States of America in Morocco: This case concerned itself with the special privileges claimed for American citizens in Morocco, which was still controlled by France at the time, as part of extended consular jurisdiction established by the United States. Also at issue were certain economic policies of France that seemed to unfairly advantage French citizens over American ones. The two countries had unsuccessfully attempted to negotiate a settlement, and France filed unilaterally before the ICJ to attempt a diplomatic resolution. The United States never objected to the application to the Court. Although the United States initially filed a series of objections to the merits of the case, it demonstrated a deep-seated respect for the Courts judgment by withdrawing these
CONTANZE SChULTE, COMPLiANCE WiTh DECiSiONS OF ThE INTERNATiONAL COURT OF JUSTiCE (2005).

21 Bratic 35 objections once the Court had rejected them procedurally. The United States executive branch engaged in favorable court rhetoric36 and took action domestically to soften the initially harsh reactions favored by the US Senate.37 France, for its part, tread lightly and tried to present itself as an advocate for Morocco rather than as an independent party objecting directly to American actions, both fearing damage to relations with the United States38 and remaining wary of stirring up pro-independence sentiments in its African colonies.39 40 Compliance with the Courts final judgment, which found fault in both of the states actions, was swift and complete. 2. Ambatielos: At issue was whether or not the United Kingdom was obligated to submit a dispute between its government and a Greek national to arbitration. After the ICJ ruled that arbitration must proceed, the UK ended its objections and immediately complied. Although the UK filed objections to the Courts jurisdiction and claimed non-exhaustion of domestic remedies, the case remained a focus of the government alone.41 As the complaint was against the actions of the government itself and did not concern territory or rights which might have an impact on domestic interests, this confinement of scope was easy to achieve. The lack of British domestic investment in the dispute meant that the British government could confine its focus to legal issues alone without allowing the case to turn political.42 3. Minquiers and Ecrehos: In the course of long-running negotiations, the United Kingdom and France agreed to submit to the ICJ a dispute over fishing rights on islands in the British
 Bin Cheng, Rights of United States Nationals in the French Zone of Morocco, 2 INTL & COMP. L.Q. 354, 354-67 (1953).  Rights of Nationals of the United States of America in Morocco (Fr. V. U.S.), 1952 I.C.J.93, 157 (Aug. 27) (reports of judgement, advisory opinions, and orders).  Richard Young, The End of Amreica Consular Jurisdiction in Morocco, 51 AM. J. INTL L., 402, 402-06 (1957).  Kurt H. Nadelmann, Reprisals Against American Judgements?, 65 HARv. L. REv. , 1184, 1184-91 (1952). U.S. Test With France in Morocco Comes to Hearing in World Court; Washington and Paris, in Open Sessions at The Hague, Will Both Try to Avoid Roiling North African Feelings, N.Y. Times, July 13, 1952 at 5. Paris Says U.S. Hurts Moroccan Interests, N.Y. Times, July 17, 1952 at 3.  D. H. N. Johnson , The Ambatielos Case, 19 MOD. L. REv. 510, 510-17 (1956). World Court Gets 34-Year Ship Case; Greek Buyer Of 1919 Surplus Vessels Is Backed By Athens In His Suit Against Britain, N.Y. Times, March 31, 1953, at 19.

WULR Vol VI, Issue I Autumn 2010 22 Channel. The Courts ruling, assigning exclusive rights to the UK, was in many ways redundant, since the parties continued negotiating during the proceedings and independently reached an agreement between submission of the case and the issuance of the Courts decision. Although the conflict in this state was longstanding, relations between the two states were excellent; the dispute was never presented nor interpreted as a diplomatic conflict between the two nations but rather, was seen as an attempt to resolve the disagreements between individual fishermen of each country. It was a purely local problem, as Schultz said, and the UK itself referred to the islands in contention as only a few rocks.43 The French concurred, saying they had no risk to wish difficulties with Britain just for the sake of two islands.44 Referral to the ICJ represented not an escalation, but another procedural path working toward inevitable final resolution.45 4. Sovereignty over Certain Frontier Land: Much like the Minquiers and Ecrehos case, the dispute between the Netherlands and Belgium over a shared border was one in which local emotions dominated. Tensions were even higher between the locals living at the mutual border of these two nations, spilling into the greater political discourse and threatening the planned furtherance of economic relations between the two states. Although many domestic leaders acted as though vital national interests were at stake,46 in the merits of the case the dispute was frequently described as ridiculous.47 The ICJ ruled overwhelmingly in Belgiums favor, and the Dutch fully complied. 5. North Sea Continental Shelf: Germany faced Denmark and the Netherlands in two distinct disputes over a shared maritime boundary. In the course of delimitation of the boundary between
Papal Monition on Piracy: To Bolster Claim to Oyster-Beds, The Manchester Guardian, September 17, 1953.  Royal Appetites For Channel Islets: French Case at The Hague, The Manchester GuardianSeptember 29, 1953.  D.H.N. Johnson, The Minquiers and Ecrehos Case, 3 INTL COMP. L. REv. 189, 189-216 (1954).  Walter H.Waggoner, A Tax-Free Enclave of 30 Acres Contested by Belgians and Dutch; Question of Monarchy Status Is Slated to Be Argued. Before Hague Tribunal, N.Y. Times, August 10, 1957 at 3.  J. H. W. Verzijl, ThE jURiSPRUDENCE OF ThE WORLD COURT, A CASE BY CASE COMMENTARY. (Leyden, Vol. 2 1966)

23 Bratic the three countries, the criteria for measurement became a contested issue. The Court was thus asked to decide the applicable formula under international law rather than to judge a need for demarcation or the actual line to be followed. The case was characterized by a strong common desire of the parties to settle the dispute and have the disputed principles clarified by the court, according to Schulte; The matter was of important, though not vital, interest. All sides supported the decision to call upon the Court, believing it to be a useful tool in resolving a procedural roadblock in negotiations.48 After the Court agreed with Germany that the originally proposed criteria were unfair, Denmark and the Netherlands easily accepted the ruling and continued toward productive negotiations, which ultimately culminated in new treaties. 6. Fisheries Jurisdiction: The Fisheries Jurisdiction cases, between the United Kingdom, Iceland, and the Federal Republic of Germany, are marked by a very different attitude in public politics from that seen in the cases that preceded them. In a series of conflicts that became known as the cod wars, 49 Iceland withdrew from fishing treaties established with the UK and the FRG, extending exclusive fishing rights in shared waters. Iceland refused to participate in any of the proceedings, objecting to the courts jurisdiction despite prior treaty agreements. When the ICJ ruled that Icelands actions were illegal, the state responded with predictable, continued disinterest, completely ignoring the judgment and at times actively defying it. The Fisheries Jurisdiction case is puzzling to those who accept traditional compliance theory because it presents the unusual circumstance of non-compliance by a state that was without doubt in general committed to rule of law and democracy.50 However, Icelands hostile rhetoric foreshadowed dangers from the start. Members of the newly-elected Icelandic government repeatedly referred to the dispute as being a matter of life or death 51 for the country, and encouraged the passage of laws referring to the need
 Wolfgang Friedmann, The North Sea Continental Shelf Cases A Critique, 64 AM J. INTL 229, 229-40, (1970)  The High Seas: Now, the Cod Peace, TiME, June 14, 1976, at 37.  CONTANZE SChULTE, COMPLiANCE WiTh DECiSiONS OF ThE INTERNATiONAL COURT OF JUSTiCE 156 (2005). The High Seas: The War for Cod, TiME, Dec 29, 1975.

WULR Vol VI, Issue I Autumn 2010 24 for exceptional measures to benefit conservation needs.52 As the dispute with the UK and the FRG escalated, the Icelandic government continued to pass numerous laws supporting its position far more than were necessary to enshrine its views. Although the practice was carried out by a new government, it fell into a longstanding tradition of successive administrations trying to outdo their predecessors in the protection and promotion of the Icelandic fishing industry.53 Compliance in this case was never achieved or even attempted by Iceland. 7. Delimitation of the maritime boundary in the Gulf of Maine area: Facing a disagreement over the maritime boundary, heightened by the high investment of fishers in both countries, the United States and Canada agreed to jointly submit a matter of overlapping jurisdictional claims to the ICJ. The Court was given the authority to decide the boundary in the case, and it ultimately determined that the boundary lied perfectly evenly between the two claims. This equitable division followed the pattern of amicable relations that was sustained throughout the proceedings. The two states both faced pressure from domestic fishing lobbies,54 so, as Shulte states, submission to the Court was a way for domestic politicians to have the matter settled without having to bear the political responsibility for the result and to face the reproach of their constituents.55 Although negotiations had been attempted many times before, their ultimate success was seen as unlikely, and most agreed that additional measures would be needed to resolve the issue. In referring the matter to the ICJ, both states made efforts to ramp up the courts legitimacy as much as possible, encouraging domestic legislative bodies to involve themselves in the process56
 Alona E. Evans, Fisheries Jurisdiction Case (United Kingdom v. Iceland). ICJ Reports, 1974, p. 3, 69 AM. J. INTL L. 154, 15474 (1975).  R. R. Churchhill, The Fisheries Jurisdiction Cases: The Contribution of the International Court of Justice to the Debate on Coastal States Fishery Rights, 24 INTL & COMP. L.Q. 82, 82105 (1975).  Michael Knight. U.S.Canada Treaty Faces Senate Fight; Domestic Fishermen Oppose Pact Setting Boundaries Off Maine Some Senators Listen Opposed by Booming Industry Denounced by Pell Regulation and Quotas Retaliatory Bars, N.Y. TiMES July 5, 1979, at A12. CONTANZE SChULTE, COMPLiANCE WiTh DECiSiONS OF ThE INTERNATiONAL COURT OF JUSTiCE 174 (2005). Around the World; Senate Approves Treaty On Sea Border With Canada, REUTERS, April 30, 1981.

25 Bratic and making a joint submission. When the verdict was reached, both states offered full and immediate compliance. No subsequent conflict has arisen on the issue. 8. Military and Paramilitary Activities in and against Nicaragua: This case between the United States and Nicaragua is legendary for the United States display of complete defiance of the Court, which some worried would pose challenges to the ICJs legitimacy for decades afterwards. (Fortunately, the USs behavior seems to have had no such effect.) Nicaragua applied unilaterally to the ICJ in response to a series of suspicious behaviors conducted by the United States, which Nicaragua charged as attempts to overthrow its government, which is a clear violation of international laws against interference in other states politics. The US flatly denied all such charges, and objected further by rejecting the courts jurisdiction and legitimacy, refusing to participate in the proceedings,57 directly flouting the judgment set against it, and ultimately withdrawing from the courts compulsory jurisdiction. From the outset, the American response was suspect: the Reagan administration responded to the Nicaraguan filing not with a counterclaim, but with a declaration of a state of national emergency and a series of harsh retaliatory sanctions against Nicaragua.58 In addition to these sanctions, Reagan also ordered an escalation of the very same military efforts to which Nicaragua had filed objections.59 The Reagan administration made it very clear that they viewed the court as an impediment to their goals of military and political coercion in Nicaragua, and even US ambassador to the United Nations Jeane Kirkpatrick dismissed the court as a semi-legal body that did not deserve full respect.60 After the ICJ ruled that the USs behavior violated international law and ordered that it pay reparations to Nicaragua, the United States continued its defiance, refusing to comply and repeatedly using its veto position on the UN Security Council to block any attempts to
United States decides not to participate in World Court case initiated by Nicaragua, 22 UN ChRON. (1985).  Taylor, Stuart. Reagans Power Wide under Emergency Law. May 2, 1985. The New York Times. Id.  Stuart Taylor, Nicaragua Tells World Court that Reagans statements convict the US, N.Y. TiMES, May 7, 1985, at A16.

WULR Vol VI, Issue I Autumn 2010 26 force compliance. 9. Land, Island, and Maritime Frontier Dispute: For decades, El Salvador and Honduras found themselves locked in a dispute over a land boundary that dated back to colonial times. The conflict, which was marked by occasional violence by citizens and even full-scale military involvement, was called the soccer wars when it turned for the worse. 61 Although negotiations had continued on and off for decades, it was not until Nicaragua intervened in the matter that the case came before the ICJ. Both El Salvador and Honduras were publically supportive of the courts jurisdiction, though they disagreed on the exact issues to be examined. While the ICJ proceedings continued without problems, the case maintained a highly political nature for a number of reasons. To begin with, the area in question was populated by thousands of farmers who had strong views on their national allegiance.62 Furthermore, both countries were led by recently-elected presidents who were motivated primarily to find early boosts to their reputations in fact, when a verdict was issued, the El Salvadorian president immediately seized upon the chance to champion his peaceful resolution of an enduring dispute. Finally, El Salvador and Honduras were at the time embroiled in a number of other disputes with one another, so it was difficult to refrain from contributing to a perceived linkage between the many issues.63 The courts ruling did not fall completely evenly on both parties Honduras received two-thirds of the disputed land and El Salvador was assigned one-third yet both parties were hesitant to offer full compliance. Both states dragged their feet in compliance, citing obstacles of practicality and cost and accusing the other of noncompliance. However, the ruling was never explicitly rejected or defied by either state, with both choosing instead to attempt to portray their own state as the sole compliant party. 10. Maritime delimitation: Greenland and Jan Mayen: Norway and Denmarks case before the ICJ concerned a twentyyear-old dispute over continental shelf boundaries and fishing rights in the area around Greenland. In extending exclusive fishery zones
A Win in the World Court, N.Y. TiMES, October 6, 1992. Id. Excerpts from Latin Leaders Agreement, N.Y. TiMES, December 13, 1989.

27 Bratic between two separately-controlled islands, leaders of both countries emphasized the economic dependence of their coastal citizens on the fishing trade. Denmark appealed unilaterally to the court after bilateral negotiations proved fruitless. Although Norway never objected to the courts jurisdiction in the case, it expressed hesitance over any possible attempt by the court to draw national boundaries. However, the court did indeed decide to do so, slightly to Norways advantage. From the start of proceedings, both parties expressed strong respect for the court. Since the islands in contention were uninhabited, there was little risk of stoking local emotions.64 Strong relations between the countries contributed to what was widely seen as an amicable case that stayed out of public political rhetoric, and after the judgment was issued, the parties continued to negotiate in order to reach a similar but more personalized agreement. 11. Gabcikovo-Nagymaros Project: A cooperative agreement between Hungary and Czechoslovakia which later became Slovakia to construct locks on the Danube that would facilitate development suddenly became highly contentious when domestic opposition to the project in Hungary became overwhelming. Hungary decided to unilaterally abandon its portion of the project, leaving Slovakia with a partially-completed structure and a defunct agreement. Under intense pressure from the European Community, to which both countries aspired for membership, Hungary and Slovakia jointly submitted the matter to the ICJ.65 When speaking to or in reference to the European Community, each country made itself appear supportive of the courts role. However, a different picture was painted domestically. In many ways, the dispute between ecologists and engineers became a stand between Communism and democracy to which Hungary was newly-converted.66 The environmental attention to the issue demanded by Hungarian protestors thus became a test of the success of democratic government in the state,67 while
 Jonathan I. Charney, Maritime Delimitation in the Area between Greenland and Jan Mayen, 88 AM. J. INTL L. 105, 105-09 (1994).  John Palmer, Hungary and Slovakia agree to take dam row to world court,GUARDiAN, Apr. 8, 1993 at 12.  Nick Thorpe, On the Danubes banks, villages dry up: Asvanyraro, Apr. 11, 1993OBSERvER at 20.  3 Celestine Bohlen, GABCIKOVO JOURNAL; On The Danube, Unbuilt Dams But Pent-Up Anger, N.Y. TiMES, Dec. 5, 1990.

WULR Vol VI, Issue I Autumn 2010 28 the dam project itself represented the faulty ways of old Communist governance.68 In Slovakia, the government set up a propaganda website in support of its perspective,69 and took to the international press to plead its cause.70 Although leaders of both countries later backed down from these extremist perspectives,71 the citizenry remained polarized.72 When the court ruled that Hungary (and, to a lesser extent, Slovakia) had acted improperly and sent them back to negotiations, leaders in both countries found it difficult to reign in a riled up domestic political audience to support the issuance of any concessions. Negotiations continue to this day, but no progress has been achieved. 12. Kasikili/Sedudu: The young democracies of Botswana and Namibia were given a chance to prove their commitment to international legal principles in the case of disputed control over an island. The two states were fortunate in their condition, which was marked by considerable common ground: the states agreed both on the applicable treaty and on the interpretation of its language; however, they disagreed over which branch of the river that acted as a dividing line between the two territories was considered its main (and thus relevant) branch. The leaders of the two countries, while maintaining strong relations, called upon a third party, Zimbabwe, to mediate. The matter was jointly submitted to the ICJ, and the court was asked to definitively determine the boundary. The states investment in the island arose from its potential as a tourist destination. The island was uninhabited, and therefore locals had no investment in the outcome of the decision. The case was decided on mostly scientific grounds, with each country calling upon expert witnesses and scientific data rather than political rhetoric to make its case.73 Based on this evidence, the court ruled that the island was under Botswanas jurisdiction, and Namibia complied, dropping all claims to the territory.
Hungary Moves to Abandon Dam Project on the Danube, AP, May 13, 1989. Available at www.gabcikovo.gov.sk/tlac.htm#googtrans/sk/en 21 April 2010 Hungary Participates In Danube Project, N.Y. TiMES, November 21, 1992. Hungarians Ease Stand Over Dam, N.Y. TiMES, August 29, 1991. Accord Signed to Dam Danube; Protest Rally Is Held in Budapest, N.Y. TiMES, March 1, 1998.  W. J. R.Alexander, Science, history and the Kasikili Island dispute,95 S.AFR. J. SCi. 321, 32125 (1999).

Bratic

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13. LaGrand: After facing down the court in 1987 in proceedings initiated by Nicaragua, the United States had a chance to redeem itself in the LaGrand case. The dispute was brought to the ICJ unilaterally by Germany, which alleged violation of the Vienna Convention on Consular Relations in the case of two of its citizens, who were sentenced to death in the US without being informed of their rights to consular support as foreign citizens. The United States noted from the outset that its federal structure posed particular obstacles to the case the death sentence was issued by an Arizona court, not a federal one yet never contested either the ICJs jurisdiction or the fact that a treaty breach did indeed occur. In fact, the US appeared ashamed of this violation, and had taken public steps such as the distribution of pamphlets emphasizing the guideline before the case was even brought before the ICJ. Germany filed its case immediately before the two defendants were to be executed. Although the court issued an interim measure of protection ordering the US to stay the executions, it was not honored. 74 Germany and the rest of Europe were outraged by this act. Although it was not explicitly considered by the court, the legality of the death penalty in the United States added to the polarizing nature of the case in Europe. The court ruled against the US after proceedings in which the US fully and productively participated, and ordered the state to pay reparations, conduct a full review of the case, and take actions in order to prevent future breaches. Although the US has since made great efforts to improve conduct in the future, it has neither paid reparations nor conducted a review of the case to see if the omission of informing the defendants of their consular rights would have affected the outcome of the case.75 In fact, the judgment has largely been ignored, neither complied with nor defied. This may stem both from the federal structure of the US judicial system and the timing of the judgment, which was issued just months before September 11, 2001. 76 Caught up in other international matters, the US seems to have made an error in omission by failing to encourage Arizona
 Roger Cohen, U.S. Execution of German Stirs Anger, N.Y. TiMES MARCh 5, 1999.  Colter Paulson, Compliance with Final Judgments of the International Court of Justice Since 1987, 98 Am. J. Intl L. 434-461 (2004).  Martin Mennecke & Christian J. Tams, Lagrand Case (Germany v United States of America). 51 INTL L. & COMP. L.Q. 449, 449-55 (2002).

WULR Vol VI, Issue I Autumn 2010 30 to take action on the international stage. 14. Arrest warrant of 11 April 2000: Following the passage of a controversial and revolutionary new law, Belgium claimed jurisdiction to prosecute those who committed international war crimes in its domestic courts. One of the countrys first targets was the foreign minister of the Democratic Republic of Congo (DRC), Abdoulaye Yerodia Ndombasi, who was charged with genocide crimes perpetrated privately before he took office. However, the DRC and much of the international community argued that traditional international dealings exempted prosecution of current government leaders. The DRC applied unilaterally to the ICJ, and the court ruled that Belgium must withdraw the arrest warrant and suspend any prosecutions until after the foreign ministers term of office ended. The ruling was a windfall to Belgium, which complied immediately and fully. The law was passed by the Belgian parliament, but it was criticized by members of the Belgian executive, who viewed at as too reaching and of questionable international legitimacy. Thus, these leaders had been searching for an excuse to distance the country from the radical new law since its passage. After courts were immediately inundated with claims from around the world, many began to reconsider the law.77 Foreign minister Louis Michel decried the law as opportunistic, and many others were embarrassed by the image of Belgium that was presented by the law.78 As leaders quickly found out, the law also posed problems in international relations. First, states whose leaders were accused in Belgian courts took particular offense; the Belgium foreign ministry had to work overtime to repair relations with the DRC after the arrest warrant in this case was issued, and worked to publicly reiterate the importance that Belgium placed on its membership in the international community.79 Additionally, Belgian leaders faced external pressure from the US and other allies, who were concerned about the extended jurisdiction that the law asserted, to curtail the
 Marlise Simons, Human Rights Cases Begin to Flood Into Belgian Courts, N.Y. TiMES, December 27, 2001. Belgium bans Sharon war crimes trial, BBC, June 26, 2002. Belgiums diplomatic storm with Congo, BBC, July 11, 2000.

31 Bratic 80 scope of the law or eliminate it entirely. The ruling thus gave Belgian leaders the perfect opportunity to abandon the law without distancing themselves from the lofty human rights ideals that had initially motivated its passage. Compliance was immediate and faced no challenges. CONCLUSiON These case studies reveal that the majority of cases fall into particular categories of leadership behavior, whose differences have a determining effect on compliance in each case. It is evident in such cases as Fisheries Jurisdiction, Military and Paramilitary Activities in and around Nicaragua, and Gabcikovo/Nagymaros project that the way in which the executive engaged with the issue as a political project increased the overall polarity of the dispute. In these cases, the associated low compliance levels that resulted indicate a correlation between this politically-tinged rhetoric and compliant behavior. However, it is clear that an issues domestic salience need not imply this correlation with low compliance; in other cases, the steps taken by leaders to actively distance themselves from the political drama within their countries and increase the perception of the Courts authority were correlated instead with high compliance rates. Cases expressing this position include Rights of Nationals of the United States of America in Morocco, Sovereignty over Certain Frontier Land, and Arrest Warrant of 11 April 2000. These case histories strongly support the correlations described in both of the hypotheses: that a leaders post-judgment posturing, whether positive or negative, can be predictive of the countrys response to an unfavorable ICJ judgment. However, this relationship does not definitively determine causality, leaving open the possibility that an unconsidered factor influencing compliance would inform leaders, encouraging them to shift their rhetoric in order to align with the countrys future position. Such a factor, however, would have to be discernible to the leaders themselves, and a factor of this sort has not been proposed as of yet.
 Richard Bernstein, Belgium Rethinks Its Prosecutorial Zeal, N.Y. TiMES, April 1, 2003.

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In addition to the two conditions described in the hypotheses, a third pattern was observed: one of complete detachment of political rhetoric from court proceedings. In these cases such as Ambatielos, Maritime Delimitation Greenland and Jan Mayen, and Kasikili/Sedudu Island there was virtually no investment of the domestic population in the issue. In these specific cases, leaders had no motivation either to lend support or attempt to counteract the emotions of a domestic constituency. Leaders felt a natural desire to resolve the issue and comply with international law perhaps a product of internalization of norms, if not fear of international retribution. However, the leaders had no need to justify these desires to their electorates. Equally, actions expressing hesitance to invest in the Court would have been unfounded. It appears to be the case, then, that the inconsistent compliance record observed in democracies in ICJ cases is a result of a democratic leaders unique relationship with his or her electorate, one that is not shared with the leaders autocratic counterparts. The risk of retributive electoral effects force a leaders rhetoric to align with the states behavior in response to court rulings, either by counteracting local emotions to support compliance with international law or by exacerbating these emotions to presage cooperative difficulties. This correlation has important implications for those who study world courts as well as for the courts themselves. If a democratic states behavior is capable of prediction before a ruling is issued, the international community may be able to tailor its responses in order to find the most accessible solution for the country one that may possibly allow a leader in a politicized situation to preserve a favorable image with the electorate. In other cases, the international community can rest assured that compliance is likely to be offered. From a scholarly perspective, this finding allows for a reconciliation of the disparate images that had previously been perpetuated of general compliance theory, and compliance specific to ICJ judgments. The integration of these two theoretical backgrounds contributes to a more complete understanding of ICJ compliance and international cooperation in general.

A History of Browse-wrap and Click-wrap Contracts

By Gabriel Herman*
Electronic contracting has ballooned in both volume and complexity over the last two decades. The Internet, arguably the greatest contemporary tool for communication, has facilitated the creation of commonplace contracts that dictate marketplace transactions. Today, online contracts are identified within two categories of Click-Wrap and Browse-Wrap agreements. This paper identifies how these two forms of contracts are unique and the historical developments that led to their creation. This article will most importantly explore how electronic contracts affect all segments of American society. The articles discussion will indicate what contractual qualities are most dangerous for society and where safeguards need enactment.

Internet Contracts:

* Gabriel Herman is a 2010 graduate from American Universitys Honors College. Gabriel graduated Magna Cum Laude with a Bachelor of Arts in Interdisciplinary Studies: Communications, Legal Institutions, Economics, & Government. Upon graduation, Gabriel will pursue a year of intense study of Jewish text, commentary, and philosophy at Yeshiva Machon Yaakov in Jerusalem, Israel. Gabe plans to ultimately resume his legal studies at Villanova Law School.

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Table of Contents INTRODUCTiON.........................................................34 I: BACKGROUND............................................................35 II: HiSTORY..................................................................37 a. Shrink-wrap and Browse-wrap Agreements.........37 b. Click-Wrap Agreement........................................40 III: RELEVANT PRiNCipLES iN CONTRACT LAW AND E NFORCEAbiLiTY ................................................42 a. Notice......................................................................42 b. Assent.....................................................................44 c. The Unconscionability Doctrine............................45 CONCLUSiON.................................................................47

INTRODUCTiON The internet is arguably the most significant global technology to succeed in the last twenty years. Current internet technologies facilitate instantaneous communication, allow for the dissemination of unlimited information, and provide an economic marketplace forgoods the entireworld has to offer. Proof of the internets widespreadimpact can be understood in terms of its growth. Between the year 2000 and 2009, the internet expanded by 380.3% with an estimated one in four global citizens currently having access.1 As the internet continues to develop and reach more people, so too, will a greater portion of the world population feel the internets effects. The emergence of the internet as the predominant social and financial marketplace has been coupled with the expansion of internet law. Legal codes, such as the Uniform Electronic Transactions Act (UETA) and the Uniform Computer Information Transactions Act (UCITA), have been implemented to confront
1 Internet World Stats, Usage and Population Statistics, http://www.internetworldstats.com/stats. htm (last visited Nov. 16, 2009).

35 Herman new issues created by internet agreements.Despite avariety of existing webpages, almost all share a common bond: the users and providers contract at some point. Also, compared to other growing legal fields, internet contracts are said to affect average individuals the most.2 Today, the American legal system identifies two basic forms of online contracts click-wrap and browse-wrap agreements as ameans of characterizing the primary methods by which contracts are presented.3 Both forms of contract may or may not deal with monetary transactions. PART I: BACKGROUND Click-wrap agreements require users to actively click on a dialogue box that indicates acceptance of terms before the website provides its portion of the contract.4 Typical click-wrap agreements require that a user click an I accept icon in order to gain access to a webpage or gain the ability to download electronic data. Such icons are generally located on home or entrance screens, or at the conclusion of a scroll-down agreement.5 Courts have traditionally upheld click-wrap agreements because users are required to actively consent to terms prior to forming a contract.6 In contrast, browse-wrap agreements are fundamentally different from click-wrap contracts. Users are able to obtain service or agree to contracts without explicitly clicking on an I accept dialogue. Users bind themselves to browse-wrap agreements through assent that often takes the form of browsing an interior website page.7 Browse-wrap websites provide their licensing terms on a separate webpage that is accessible through a hyperlink. Unfortunately, legal precedent explaining what qualifies as legal assentand notice during browse-wrap agreement is not
2 James J. Tracy, Browse wrap Agreements: Register.com, Inc. v. Verio, Inc., 11 B.U. J. Sci. & Tech. L. 164. 3 RYAN J. CASAMiQUELA, V. BUSiNESS LAW: A. ELECTRONiC COMMERCE: CONTRACTUAL ASSENT AND ENFORCEAbiLiTY iN CYbERSpACE, 17 BERKELEY TECh. L.J. 476. 4 Ty Tasker & Daryn Pakcyk, Cyber-Surfing on the High Seas of Legalese: Law and Technology of Internet Agreements,18 Alb. L.J. Sci. & Tech. 79. 5 CASAMiQUELA, supra note 3, at 476. 6 Tracy, Supra note 2, at 165. 7 Tarra Zynda, Ticketmaster Corp. V. Tickets.com, Inc.: Preserving Minimum Requirements of Contracts on the Internet, 19 Berkeley Tech L.J. 504.

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definitive.Thus, browse-wrap agreements have comparatively been the subject of less legal clarity and remainshrouded with legal questions. The characterization of a contract as browse-wrap or shrink-wrap is increasingly important in understanding issues of legality and anticipating court decisions. The ability to identify a contract as one form or the other implies certain fundamental characteristics that have been justified or remain unanswered in court. Amongst growing and substantial uncertainty stemming from online contracts, contemporary scholars question what is necessary for an enforceable contract. Specific questions include what is sufficient notice of terms, what impact unconscionability has on enforceability, and what qualifies as an assent. Specific concern has been raised that online deals are contracts of adhesion and pose arisk of including non-negotiable onerous terms.8 Therest of this paper will continue with an investigation of click-wrap and browse-wrap agreements in Part II. Discussing the two contract forms in concert is an effective means of explaining general practices of online contracting and understanding the substantive differences between the two types of agreements. Section III will explore the legal history of click-wrap and browse-wrap agreements and provide needed background to properly analyze and understand associated cases. This section will explore what law is applicable and how legal theory has developed from early cases up to today. Section IV will explore the three most discussed areas of uncertainty that courts have recentlyconsideredor are likely to confront in the near future. Lastly, Section V will offer a brief conclusion with perspectives regarding how our American legal system may effectively handle issues that arise from online contracts. This paper will devote more attention to browse-wrap agreements because there is more case law and more uncertainty regarding the browse-wrap agreements.

8 NAThAN J. DAViS, PRESUMED ASSENT: ThE JUDiCiAL ACCEpTANCE OF CLiCKWRAp, 22 BERKELEY TECh. L.J. 580.

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Current legal theory on browse-wrap contracts directly developed from court opinions involving shrink-wrap agreements. Judges addressing early cyberspace contracts applied shrink-wrap rulings, believing that sufficient similarities between the forms of contracts existed.9 Like typical browse-wrap and click-wrap contracts, shrink-wrap agreements present consumers with a unilateral list of terms on a take-it or leave-it basis.10 During the early 1990s and continuing today, many software companies licensed their product exclusively through shrink-wrap agreements. In a typical shrink-wrap contract, a printed list of terms would be placed inside a CD sleeve and a consumer would be confronted with additional terms on their computer monitor during usage.11 Shrink-wrap agreements purport to bind users to contracts upon opening or using their product. In addition, software companies continue to place contracts within a CD sleeve or packing boxes that purport to bind the purchaser upon removingthe covering cellophane.12 It is important to recognize the development of shrink-wrap contracts in order to understand the precedent supporting browse-wrap agreements. The first case to test the legality of shrink-wrap contracts was Step-Saver Data Systems, Inc. v. Wyse Technology.13 In StepSaver, two merchants agreed over thephone to the purchase of software at a discussedprice, set description, and all other necessary contract terms. When the product was delivered, a label was present on top of the software box describing additional terms.14 The question in this case was whether a warranty printed
9 MELiSSA RObERTSON, IS ASSENT STiLL A PREREQUiSiTE FOR CONTRACT FORMATiON iN TODAYS ECONOMY, 78 WASh. L. REV. 2 10 CASAMiQUELA, supra note 3, at 477. 11 RObERTSON, supra note 9, at 276. 12 MO ZhANG, CONTRACTUAL ChOiCE OF LAW iN CONTRACTS OF ADhESiON AND PARTY AUTONOMY, 41 AKRON L. REV. 127. 13 MiChAEL J. MADSON, RiGhTS OF ACCESS AND ThE ShApE OF ThE INTERNET, 44 B.C. L. REV. 452. 14 MARK ANDREW CERNY, : U.C.C. SECTiON 2-207S ROLE iN ThE ENFORCEAbiLiTY OF ARbiTRATiON AGREEMENTS INCLUDED WiTh ThE DELiVERY OF PRODUCTS, 51 ALA. L. REV. 833.

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on top of the computer software packaging referred to as a box-top license and representing a shrink-wrap agreement was enforceable. The courts decision that the software was a good and within the jurisdiction of Article 2 of the Uniform Commercial Code (UCC) was key in making the contract subject to offer-and-acceptance correspondence described in UCC section 2-207.15 Due to this distinction, the label on top of the box was an additional sales proposal, but it did not become part of the agreement.16 Moreover, the most important key to the history of wrap agreements is Step-Saver found that shrink-wrap contracts were not enforceable because of a lack of consumer assent.17 Following the Step-Saver case, courts generally found shrink-wrap licenses unenforceable because contracted terms were not part of the bargained-for exchange.18 The belief in Step-Saver was that assent did not occur; this issue, however, remains a fundamental concern with browse-wrap agreements. In 1996, the Court of Appeals for the Seventh Circuit reversed the Step-Saver decision by upholding the legality of shrink-wrap agreements in ProCD v. Zeidenberg. ProCD sold an organized list of telephone numbers at different prices for professional and personal use. Included in the package was a shrink-wrap agreement rendering the redistribution of the phone numbers illegal.The defendants purchase and redistribution of the numbers motivated ProCD to sue for breach of contract. In ProCD v. Zeidenberg, the Seventh Circuit established a new precedent that consumers could assent to shrink-wrap contracts and that electronic assent could occur through browsewrap.19 The court held that contracts do not have to be formed at the momenta buyer purchases a box of software.20 Rather, a contract can be formed at the moment a buyer uses the software and after having the opportunity to read the license at leisure.
15 MADSON, supra note 13, at 454. 16 Brian Covotta and Pamela Sergeef, A Copyright: 1. Preemption: b: Contract Enforceability: ProCD, Inc. v. Zeidenberg, 13 Berkeley Tech. L.J. 35. 17 CASAMiQUELA, supra note 3, at 477. 18 Covotta and Sergeef, supra note 16, at 36. 19 CASAMiQUELA, supra note 3, at 480. 20 ZhANG, supra note 12, at 128.

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In ProCD, the court ruled that opening a product and retaining the good is sufficient indication of assent.21 Unlike Step-Saver, the court identified the existence of a consumer and vendor relationship and refused to apply UCC section 2-207. Instead, the court ruled that consumer assent had occurred citing UCC section 2-204.22 The Seventh Circuit concluded that the vendor was the one making the offer and could subsequently propose a specific method of acceptance that could occur after purchase. The alternative means of acceptance discovered in ProCD opened the door for the legality of browse-wrap contracts. Hill v. Gateway 2000 upheld the legality of shrink-wrap agreements and expanded the scope of the ProCD determination.23 Hill purchased a computer from Gateway over the phone and agreed to the terms, price, and all necessary provisions. When the computer was delivered, the box contained Gateways boilerplate form describing the return policy and arbitration clause. The judge ruling on Hill noted the number of contracts that operate in a payfirst, terms-later approach and the impracticability for Gateway and other retailers to recite all their terms over the phone.24 The judge stressed that layer contracts in this case being in the form of review-and-return method, avoids the inefficiency of telephone contracting to provide consumers with a better opportunity to review the terms to which they are asked to submit.25 The court made the comparison between ProCD and Gateway because both firms gave users the same accept-or-return offer. The idea of layered contracts and online efficiency are essential arguments made by individuals attempting to prove the enforceability of browse-wrap contracts. ProCD remains one of most relevant precedents for individuals addressing consumer assent in click-wrap and browse-wrap agreements. The form and functionality of ProCD
21 RObERTSON, supra note 9, at 72. 22 CASAMiQUELA, supra note 3, at 479. 23 Id. at 479. 24 SAjiDA A MAhDi, GATEWAY TO ARbiTRATiON: ISSUES OF CONTRACT FORMATiON UNDER ThE UCC AND ThE ENFORCEAbiLiTY OF ARbiTRATiON CLAUSES INCLUDED IN STANDARD FORM CONTRACTS, 96 NW. U.L. REV 40 25 Id. at 420.

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is analogous to how bothbrowse-wrap and click-wrap contracts operate. The computer disc distributed by ProCD is similar to click-wrap contracts terms that appear on ones computer screen and allows usage only after acceptance.26 This form of acceptance is identical to selecting a dialogue box stating, I accept. Likewise, ProCDs computer disc is also similar to a browse-wrap agreement as the CD functioned on ones computer without any form of acceptance. And as internet contracts most frequently occur between merchants and consumers, so too did those contracts mentioned in ProCD.27 In Specht v. Netscape the court first made the jump and identified the ProCD ruling as having important implications for online contracting. The court identified two procedural characteristics that define a contract as either browse-wrap or shrink-wrap. The presence of both qualities indicates click-wrap, while the absence of either represents browse-wrap.28 The first characteristic is whether a website or software program requires a customer to affirmatively indicate acceptance of the license/ agreement. The second characteristic is that the software/internet must automatically present the license to the user. The Netscape two-prong test is a current means of analysis today in deciding what form of contract exists. Most importantly, the Netscape case should be remembered as the most direct instance where the legal principles behind shrink-wrap were applied to browse-wrap contracts. The history of wrap agreements and associated cases indicates that modern online browse-wrap agreements are an acceptable form of contract. To determine whether a browsewrap is unenforceable will depend on complicated issues such as adequate notice or assent on a case-by-case situations. IIb. Click-Wrap Agreement The legal history of click-wrap agreements is highly
26 CASAMiQUELA, supra note 3, at 482. 27 Id. at 482. 28 Id. at 483.

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consistent and found in two cases from 1998. Hotmail Corp. Van Money Pie was the first case to address the legality of click-wrap agreements.29 In Hotmail, the defendant assented to a click-wrap agreement with internet service provider Hotmail that forbade spamming and the distribution of pornographic content. The defendant supposedly violated the contract by using a Hotmail account to send thousands of bulk pornographic emails. The court held that Van Money was in breach of contract and that the click-wrap terms of service was enforceable.30 The decision did not address the peculiarities of online contracts; however, it did establish that click-wrap agreements could be binding. The court further ruled that a users ability to notice contractual terms increases the likelihood that assent and the accepted contract will be enforceable. Groff v. America Online, Inc. reaffirmed the precedent that click-wrap agreements are binding. The case involved the forum selection clause of AOLs usage terms. During the AOL installation process, the user had the opportunity to agree or disagree to the contract terms. Acceptance of AOLs terms would allow for service, while rejecting AOLs contract terms would prohibit further program use. The court found that the defendant, a 30-year member of the Rhode Island bar, should have been aware that he was entering into a contract and was unable to provide any relief from failing to see, read, or agree to the terms.31 Like ProCD, because the user was given notice of contract and was required to affirmatively accept the terms to use the program, the court held that the click-wrap agreements are binding. Unlike browse-wrap agreements, click-wrap terms are more straightforward and clearly presented. Hence, click-wraps contracts are enforceable in court given that the user has a discernable opportunity to learn the terms. However, failure to read terms that a discerning person would see does not constitute a sufficient legal defense. Court rulings that find click-wrap agreements unenforceable do so because the necessary click is contested or
29 DAViS, supra note 8, at 580. 30 Id. at 581. 31 Id. at 582.

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because notice or assent is not sufficient.32 PART III: RELEVANT PRiNCipLES iN CONTRACT LAW AND ENFORCEAbiLiTY Contract law generally requires three elements to create a legally binding agreement: offer, acceptance, and consideration.33 Today, UCC section 2-204 has substantially expanded the means by which parties can contract.34 UCC 2-204 states that a contract can be made in any manner sufficient to show agreement, including conduct by both parties, which recognizes the existence of such a contract.35 Additionally, UCC 2-206 provides that an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.36 Courts also have interpreted this tandem of code to allow contracts to be formed electronically and over the internet.37 Despite existing code that allows internet agreements, there are issues that affect enforceability. For example, what actions are required to allow for acceptable assent? What are the effects procedural and substantive unconscionability on enforceability? What is the duty to read a contract? Most litigation has centered on whether users should notice the terms or reasonably should have had notice of terms as a prerequisite to accepting terms. IIIa. Notice Courts have stressed the importance of notice of contract when determining the enforceability of both click-wrap and browse-wrap agreements.38 The necessary legal determination is whether an offeree saw or had a reasonable opportunity to review
32 Id. at 582. 33 RObERTSON, supra note 9, at 268. 34 Id. at 269. 35 U.C.C. 2-204. 36 U. C.C. 2-206. 37 RObERTSON, supra note 9, at 268. 38 Ian Rambarran and Robert Hunt, Are Browse-Wrap Agreements All They are Wrapped up to Be? 9 Tul. J. Tech & Intell. Prop. 175.

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contract terms.39 Sufficient notice is dependent on where terms are located and how they are presented. If terms are available on a different website, the transferring hyperlinks qualities such as color, location, and size are all features a court must take into account in its decision. Courts have found sufficient notice to be predicated on an individuals browsing history and technological abilities.40 For example, a frequent visitor to a particular site is expected to have had a greater opportunity to notice contracting terms. Varying user experiences further complicates the determination of notice. Technological differences that include but are not limited to computer abilities, user skills, and even monitor sizes have an effect on how terms are presented. Even website designers attempts to facilitate usage affect the display of terms. Blurring words in complex images or requiring visitation of a peripheral site directly affect how notice occurs. The wide range of technological differences that exist amongst users makes systemic determination of reasonable notice virtually impossible. There are no established guidelines for determining sufficient notice. Click-wrap agreements generally meet the requirement of notice. The notice requirement is easily satisfied because offerees are required to actively consent to have received acknowledgment of terms before software or websites will allow access.41 This form of notice is frequently found on websites that place an acceptance box or button next to a scroll box featuring contract terms. Court rulings indicate that people arguing against the enforceability of a click-wrap contract for lack of notice will have little chance of winning as they have explicitly acknowledged an understanding of terms.42 Websites terms and sufficient notice can be adequately given through means of communications that are not electronic or that require viewing other documents. It has become the practice that consumers are easily linked to terms or information that
39 Rambarran and Hunt, supra note 38, at 175. 40 Tasker, supra note 4, at 83. 41 Nancy S. Kim, The Software Licensing Dilemma, 2008 B.Y.U.L. Rev. 1103. 42 Rambarran and Hunt, supra note 38, at 176.

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are out of ones immediate perception but instead referenced.43 Meanwhile, website terms which are often given on hyperlinked pages of the home screen or even through direct email can be a legally acceptable form of notice. Courts have enforced arbitration clauses where the consumer received separate notice of terms being available at an alternative website or toll-free phone number.44 An additional example of sufficient notice came when a user received an email with a scroll-down bar listing all terms. Despite failing to actually read the entirety of terms, the email was regarded as sufficient notice of terms. In this example, the court established that failure to read easily presented terms does not satisfy as a defense against not having notice. IIIb. Assent Sufficient assent is necessary for a contract to be formed and has been an issue in many disputed internet contracts. Courts that have found contracts unenforceable have done so because (1) the user was not clearly required to affirm assent before completing the transaction, (2) the user never assented before violation, and (3) the users claim arose prior to the opportunity to assent.45 Although possibly designed to enhance user experience, many browse-wrap contracts inconspicuously display contract terms. This failure of a website to provide adequate notice inhibits a users knowledge of a contract and prevents legal assent from occurring. Courts question the legality of browse-wrap agreements and whether an unsuspecting individual can knowingly assent when a reasonable viewer may not notice the terms.46 The situations listed above can be applied to both click-wrap and browse-wrap agreements. The first and likely most notorious example of an unenforceable browse-wrap contract is Specht v. Netscape Communications Corp. The defendant sued Netscape arguing that downloaded software violated the Electronic Communications
43 Tasker, supra note 4, at 81. 44 Id. at 81. 45 Davis, supra note 4, at 584. 46 Alyssa N. Knutson, Proceed with Caution: How Digital Archives Have been Left in the Dark. 24 Berkeley Tech. L.J. 437.

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Privacy Act (EULA) and illegally distributed personal information. Although Netscapes website provided one brief mention referencing the EULA, the notice required that the web visitor actively scroll to the bottom of the page. The court ultimately ruled that Netscape did not provide sufficient notification of terms and stated that: [the process of downloading the software] allows a user to download and use the software without taking any action that plainly manifests assent to the terms of the associated license or indicates an understanding that a contract is being formed.47 Furthermore, Netscape asked that users please review and agree to the terms of the agreement and did not require that users actually agree to gain access to the technology.48 The term please review was insufficient because it did not demand the user discover contract terms, and could have been taken as an inviting statement that was perceivable as optional. IIIc. The Unconscionability Doctrine Courts are able to employ the unconscionability doctrine to strike terms from an online agreement. The unconscionability doctrine has been adapted from common law into the UCC and is designed to protect contracting parties. In deciding whether parts or all of an e-contract is unconscionable, courts generally want to recognize that both substantive and procedural unconscionability are present.49 Substantive unconscionability occurs when terms are considered one sided or overly harsh. Online procedural unconscionability occurs when users are not offered a meaningful alternative but to agree to contract.50 In Comb v. PayPal, Inc, the District Court for the Northern District of California struck down a portion of an arbitration clause in a browse-wrap agreement for meeting both requirements of substantive and procedural unconscionability. The court articulated that several clauses as excessively harsh, including PayPals
47 Davis, supra note 4, at 567. 48 Tracy, supra note 2, at 168. 49 Camiqueula, Supra, 488. 50 Amy J. Schmitz, Embracing Unconscionabilitys Safety Net Function, 58 Ala. L. Rev. 81

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reserved ability to make agreement changes without notifying the user.51 It found the contract to be a procedurally unconscionable contract of adhesion stating that the contract was a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.52 The court wrote that Paypals contract was substantively unconscionable because the contract was designed solely to shield PayPal from liability and did not protect mutual interest. The court found four specific terms to one side: (1) PayPal was allowed self-help remedies such as freezing customer accounts, while the customers only option was to pursue arbitration; (2) customers were prohibited from consolidating their claims; (3) the agreement called for the parties to bear their pro rata share of the arbitration expenses, despite the fact that no individual plaintiffs claims exceeded $ 310; and (4) Santa Clara, CA was selected as the exclusive jurisdiction for arbitration. Although Combs v. PayPal supports the idea that the doctrine of unconscionability can be used as a viable defense against certain websites, there are few other cases expanding on its usage. The reality remains that judges are unlikely to overturn contracts where sufficient notice and adequate assent is given. Despite being afforded broad powers to police the bargain under UCC section 2-302, courts generally hesitate and sometimes are actually unable to apply the doctrine. If during case analysis a court finds that a user has assented to terms, the website must have initially provided notice of contract terms in a sufficient manner.53 If a court were to rule that a contract was procedurally
51 Tracy, supra note 2, at 167. 52 Id. at 594. CASAMiQUELA, Supra, 488.

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unconscionable, meaning the user had no other choice but to contract, after first finding sufficient assent and notice had been present, the new ruling would be in conflict with the initial ruling of legal assent. Especially in association with click-wrap agreements, if sufficient notice of terms exists and the user has legally assented, courts will be very cautious and hesitant in applying the unconscionability doctrine. The application of the unconscionability doctrine in browse-wrap agreements is more contested. Some argue that strict interpretation or confinement of the unconscionability doctrine will prevent courts from providing relief to wronged parties. Casamiquela believes that although consumers employ a virtual freedom of choice regarding the Internet, and subsequently have supposedly not met the standard of procedural unconscionability, that particular websites unknowingly create binding contracts that are potentially harmful for users.54 CONCLUSiON The Internets continued incorporation into societys life will likely be partnered with an increase in the scope of Internet law. New means of communication, financial transaction, and even entertainment will arise that will demand the user accept terms in order to partake. It is unlikely that webpage providers will stop using click-wrap and browse-wrap agreements. The most apparent pressing issue courts must resolve is what constitutes sufficient notice. Although it seems unlikely that regulations can be applied, court trends indicate that judges are becoming more comfortable enforcing previously unenforceable contracts. Overall, Internet contracts are being found binding. If it is possible, courts should establish some standard for contracts in order to make the process more predictable and safe for both parties. Doing so, would help avert dangerous contracts of adhesion and potentially save both parties from an expensive arbitration. As Judges become more technologically savvy, the possibility of refining Internet contract
 Schmitz, supra note 50, at 61.

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regulations seems possible. Future writings about Internet contracting should focus on singular themes of assent, notice, unconscionability, and similar issues of enforceability. The amount of information related to cases discussed in this note is too extensive to adequately explain all the current legal issues. Furthermore, this field of study could be broken down into the difference between licensing agreements and the sales of goods. A more comprehensive understanding of the internet contracting nuances can be ascertained by studying the issues that affect enforceability individually.

Climate Change, the Clean Air Act, and Citizen Suit Standing
By Wyatt Sassman*
Most proposals to regulate the United Statesgreenhouse gas emissions have relied upon the authority of the Clean Air Act. In 1970, the Clean Air Act authorized citizen suits: civil actions that empower citizens to act in the enforcement of federal law. As civil suits, citizen suits are subject to the rules of standing. To the extent that the Courts have addressed climate change harms, they have purposefully excluded citizen suit standing from their analysis. This paper notes that without a change of heart in the judiciary, the Clean Air Act will lack the essential tool of citizen suit enforcement and be unable to effectively regulate climate change.

Struggling to Adapt:

* Wyatt Sassman graduated last year from Vanderbilt University with a degree in Political Science and is currently studying at Vanderbilt University Law School. This paper was informed by his work at the Department of Justices Law and Policy section of the Environmental and Natural Resources Division; he would like to thank the section and Professor Carroll for their guidance, experience, and direction.

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Table of Contents INTRODUCTiON.......................................................50 I: STATUTORY INTRODUCTiON TO THE CiTiZEN SUiT.........52 a. Who Can Sue? .......................................................53 b. Who Can Be Sued?.................................................53 c. Jurisdiction, Venue, and Remedies .......................54 d. Notice, Preemption, and Intervention....................56 II: CLiMATE CHANGE AND THE PROBLEM OF CiTiZEN SUiT STANDiNG.............................................................58 a. The Harms of Climate Change and Citizen Suit Standing...............................................................58 b. Climate Change and the Regulatory Burden on the EPA......................................................................62 III: CiTiZEN SUiTs EssENTiAL ROLE AND THE CONsEQUENCE OF THEiR LOss.............................................................66 a. Legislative History ................................................66 b. Citizen Suit Success................................................69 c. Citizen Suits in Action............................................. 71 d. Citizen Suits and Shared Moral Responsibility....74 C ONCLUsiON .................................................77 INTRODUCTiON Justice in the life and conduct of the state is possible only as first it resides in the heart and souls of the citizens. Plato, and inscribed over an entrance to the Robert F. Kennedy Department of Justice Building Climate change creates a number of problems for the United States. Shifting weather patterns threaten agricultural infrastructure while rising seas have already begun to submerge coastlines. Beyond these challenges, the United States must also adapt its laws to this changing world. Americas plan to abate

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climate change currently relies upon existing regulatory and enforcement agencies to implement policies that they are neither equipped nor intended to handle. This improvised approach towards climate policy requires that Congress identify and implement the changes necessary for previous regulatory regimes to accommodate new demands created by a changing climate. Unfortunately, these new demands are not being met or addressed. Proposals to regulate greenhouse gases and abate climate change under the existing authority of the Clean Air Act (CAA) have failed to update an essential aspect of the statutes enforcement scheme: the citizen suit. Federal environmental laws include unique provisions that allow citizens to act as private attorney general1 and enforce compliance with the law through independent civil enforcement suits; these enforcement actions are known as citizen suits. However, recent judicial decisions threaten these citizen enforcement suits by specifically and intentionally removing the ability of citizens to claim an injury under harms caused by climate change. As a result, citizen suits are deprived of standing in court and prevented from performing their role to regulate our nations new environmental concerns. This legal incongruence is an extremely problematic because citizen suits play an essential and irreplaceable role in the effective enforcement of the CAA. The original legislative history of the citizen suit provision illustrates that private suits were intended to have a key role in the national enforcement scheme of the CAA. Past use of the citizen suit and applicable case law show that the provision has not only fulfilled its intended legislative purpose, but has also assumed other essential responsibilities to complement federal enforcement agencies. Citizen suits also show immense promise for addressing environmental justice concerns and creating a community of shared moral responsibility for climate change. All proposed Congressional legislation on climate change has utilized the authority of the CAA, but has failed to address the issue of citizen suit standing. Unilateral regulation of climate
1 Clean Air Act, 42 U.S.C. 7604 (1970).

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change by the Environmental Protection Agency (EPA) will be plagued by the same issue, as the agency is constitutionally unable to solve the citizen suit problem. Thus, any current approach the United States will take on climate change regulation will fail unless courts reconsider their opinion on citizen suit standing and reopen private enforcement actions to the harms associated with climate change. PART I: A STATUTORY INTRODUCTiON TO THE CiTiZEN SUiT Since its original inclusion in the 1970 Clean Air Act (CAA), the citizen suit provision has filled a curious and irreplaceable role in federal environmental enforcement. All major environmental statues except the Federal Insecticide, Fungicide, and Rodenticide Act include similar citizen suit provisions, and intriguingly, citizen suits have not expanded beyond the realm of environmental law, remaining a unique pillar of environmental enforcement.2 To illustrate the basic structure and working of citizen suits, it is best to review the CAAs citizen suit provision since it serves as a model for all other statutes use of the citizen suit.3 Certain core values originally found in the CAA remain constant across environmental laws, while slight variations tailor the individual provisions to the monitoring and regulatory demands of the specific statute. Also, this analysis final emphasis on climate change requires a working knowledge of the CAAs specific interpretation of citizen suits. Understanding the original authority and boundaries of the citizen suit provision of the CAA will illuminate its intended role and emphasize the importance of private environmental enforcement to the CAAs federal enforcement scheme. This perspective is essential in order to recognize the provisions operational failure in light of climate change.
2 Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 (1947). 3 Clean Air Act, 42 U.S.C. 7604 (1970).

Sassman Part Ia. Who Can Sue?

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First and foremost, the CAA citizen suit provision authorizes any person [to] commence a civil action on his own behalf.4 This nearly universal authority contains the spirit of the citizen suit: the diffusion of responsibility for environmental enforcement to interested parties. While this clause opens environmental enforcement to citizens, it does not take enforcement away from the federal government. Along with a litany of exclusions to be discussed below, this clause restricts citizen enforcement to civil action, thus reserving environmental crimes for the Executive. Also, a citizen case brought on their own behalf must stand on its own merits. While citizen suits are directly authorized by legislation, the language avoids reserving special status for them, as well as exposing them to the burdens of proof typical of the court system. Part Ib. Who Can Be Sued? Opening enforcement of environmental statutes to any person is opening the proverbial floodgates; the realm of enforcement had been privatized. Citizen suit provisions focus on two different actions: suits brought against the violator to induce compliance and suits brought against a federal agency to force action prescribed by statute. Suits brought against a violator are relatively straightforward and all encompassing. The provision authorizes suit against any person, including the United States, and any other governmental instrumentality or agency [] who is alleged to have violated, or to be in violation of federal rules or regulations.5 Following the language of the law, any person can sue an individual, corporation, federal, state, or local government or agency for violation of federal environmental regulations, creating an extremely sweeping authority. Even the definition of a
4 Id. 5 Clean Air Act, 42 U.S.C. 7604 (1970).

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violation is sufficiently broad, allowing citizens to bring action for any violation of emission standard or limitation or violation of an order issued by the Administrator or the State with respect to such a standard or limitation.6 It is important to note that citizen suits cannot pursue wholly past violations. While the origins of this restriction appear in the statutory language, the courts settled in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. that citizen suits may only pursue ongoing violations and may not prosecute into the past.7 Even with this limitation, citizen suits are given broad authority to bring nearly every alleged violator to court. Along with suits against violators, citizen suit provisions authorize action against the federal agency empowered to promulgate and enforce regulations under the statute. These suits serve as a check against the empowered federal agency (almost always the EPA) to ensure that the agency carries out its duties proscribed by the statute. The language of the CAA provision allows citizens to bring suit against the Administrator where there is alleged failure of the Administrator to perform any act or duty under this [law] that is not discretionary.8 With this clause, it is recognized that diligent regulation is as essential as diligent enforcement. Due to the highly technical and ever-changing nature of environmental protection and regulation, Congress delegates much of its power to federal agencies. By authorizing citizens to take empowered agencies to court, Congress ensures that the language of the statute and the environmental changes that compel an evolution in its enforcement take primacy over the discretion of any given Administrator, cost barriers, or other externality. Part Ic. Jurisdiction, Venue, and Remedies Jurisdictional and venue questions are directly addressed by citizen suit provisions, explicitly giving district courts jurisdiction
6 Id. 7 Gwaltney of Smithfield, LTD. v. Chesapeake Bay Foundation, Inc. and Natural Resource Defense Council, 484 U.S. 49, 380-384 (1987). 8 Clean Air Act, 42 U.S.C. 7604 (1970).

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and mandating that any suit involving the violation of emission limits shall be filed in the district where the emitter is located.9 Actions against agencies and their representatives are filed in the United States Court of Appeals for the District of Columbia Circuit. Similar to a civil suit, citizen suits have a number of remedies available to them, including injunctions and civil penalties. However the goal of a citizen suit is to bring about compliance and enforce federal regulation, not simply to remedy an inequity. As such, injunctions and civil penalties take on a different role in citizen enforcement suits than in typical civil litigation. Judicial injunctions, temporary or otherwise, are used to immediately stop the alleged violation and bring the emitter into compliance. These injunctions are quick and enforceable but offer little to remedy environmental harm or to deter future violations. Instead, courts can assess civil penalties, to be paid to the United States Treasury, for licensing and other services or as capital set aside for beneficial mitigation projects that enhance the public health or environment. 10 11 By allowing monetary penalties against violators, Congress ensures that citizen suits have bite. Congress also makes certain that the suits serve the public interest by placing any penalties into funds directly tied to public use and environmental mitigation. By authorizing courts to award attorney fees, Congress offers personal incentive for citizens to bring suits. The burden of public interest litigation has always been the overwhelming court costs that prevent private citizen groups from effectively prosecuting large corporations. The citizen suit provision seeks to combat this effect by allowing courts to award costs of litigation, including reasonable attorneys and expert witness fees, to any party whenever appropriate.12

9 Id.  Clean Air Act, 42 U.S.C. 7604 (1970). Id. Id.

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Part Id. Notice, Preemption, and Intervention Up to this point in the analysis, citizen authority to sue is extremely broad. Any citizen can take any violator, agency, or even the United States itself, to court and call for injunctions, civil penalties, and litigation costs. In theory, this populist form of enforcement preserves both the integrity of the statute as well as the health of the environment, all while trumpeting democratic ideals. However, as evidenced by the litany of notice timelines and preemption doctrines that follow the initial broad language, Congress viewed citizen enforcement as secondary to the primary enforcement abilities of the EPA and state authorities. In order to preserve the EPA and a states primary authority to enforce environmental laws, citizen suits require notice. The provisions require that citizens send notice of their suit to the EPA, the state where the violation occurred, and the alleged violator sixty days before any action is filed.13 Similarly, the complaint of any citizen suit where the U.S. is not a party must be served to the Administrator of EPA and the Attorney General. Finally, any consent decree must be sent to the Administrator of EPA and the Attorney General forty-five days prior to any agreement.14 The provisions ensure that citizen suits keep in close contact with state and federal authorities through every step of the trial process: sixty days before the suit is filed, when the complaint is served, and when any consent decrees are signed. These notice timelines facilitate the EPA and the state governments ability to selectively take responsibility for enforcement actions out of the citizens hands. The provisions authorize the Administrator of the EPA to intervene as a matter of right at any time in the proceeding if the EPA is not a party to the suit.15 Likewise, citizen suit provisions allow the government to preempt citizen enforcement if the Administrator of the EPA or the state government is diligently prosecuting a civil action [] to require compliance with a
 Clean Air Act, 42 U.S.C. 7604 (1970). Id. Id.

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standard, limitation, or order.16 In effect, the citizen suit notice requirements give the government at least sixty days to pursue enforcement on their own and preempt any citizen suit. The service requirements for complaints and consent decrees follow the same reasoning. The EPA and the Attorney General have the opportunity to review the alleged violation and proposed enforcement of a citizen suit to offer comments and, if necessary, to intervene. The notice, intervention, and preemption clauses of citizen suit provisions assert federal control over the citizen suit process. Citizen suits are not completely disarmed; they still retain wide authority and legitimate remedies. However, they operate under the auspices of federal and state oversight, allowing the agencies to enforce environmental laws efficiently and with coordinated effort while still preserving citizen support and diverse resources. It is important to recall that many of these preemption doctrines affect only the first type of citizen suit brought against violators. Citizens can still bring suit against state and federal agencies to induce regulation and enforcement. Even in suits where state or federal enforcement preempted citizen action, citizen suit provisions empower any person [to] intervene as a matter of right, effectively protecting citizen interests against overbearing authorities. 17 The result is an elegant statutory check and balance system, where the government is both held accountable and supported by interested citizens. The provisions are careful not to overstep the bounds of federal enforcement authority while simultaneously democratizing and privatizing enforcement to pursue efficiency and collective responsibility. Abstractly, this system of enforcement should prosecute large offenders with resource intensive cases led by federal and state authorities as well as local offenders with multiple and diverse citizen efforts. Given the interconnected and nationwide demands of environmental protection, such an approach is both intelligent and necessary.

Id.  Clean Air Act, 42 U.S.C. 7604 (1970).

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PART II: CLiMATE CHANGE AND THE PROBLEM OF CiTiZEN SUiT STANDiNG Citizen suits place in the judicial system exposes them to the restrictions and standards of any other civil suit seeking entrance to the courts: the standards of justiciability. It is the combination of the harms of climate change and the standards of justiciability that eventually undermine the carefully balanced statutory enforcement system detailed above. Part IIa. The Harms of Climate Change and Citizen Standing Article III of the U.S. Constitution provides that the justice system extends to all cases and controversies.18 This mandate has been translated into the standards of justiciability. A case must pass the tests of standing, ripeness, mootness, and political question. Standing, however, is the most important aspect of justiciability for this analysis. The legal concept of standing has evolved to include three major requirements: injury, causation, and redressability. Injury requires that the plaintiff bringing suit has actually suffered injury, including bodily, monetarily, or otherwise. Causation requires that the plaintiff connect the defendant to their injury and prove that the actions of the defendant in some way caused their injury. Redressability requires that the court can equitably solve the injury, or provide the plaintiff with a remedy for whatever harm occurred. While the legal concepts are abstract, standing itself is rather straight forward: if the plaintiff was harmed, if the defendant is the cause of the harm, and if the court can solve the harm. Standing requirements can often prove challenging for citizen suits, but not impossible. The archetypal case involves a power plant exceeding its emissions limits.; If the citizen is directly injured by the decrease in the quality of their air, they can prove causation via monitored violations of the plants emissions limits. The courts can then redress the injury by requiring the power plant to discontinue the violation and impose penalties to ensure the
U.S. CONsT. amend. III, 2.

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violation does not happen again. This process works exceptionally well for CAA and Clean Water Act (CWA) cases, where emissions limits are monitored and citizens can personalize the injurious effects of a violation in their community. However, should the CAA begin to regulate climate change, this process path will break down. While substantial enough, climate change injuries not only take place over a long period of time , but are global and completely impersonal as well. As a result, should a power plant violate its greenhouse gas emissions permit, it is unclear whether a citizen will be able to claim actual injury. The questions continue with the causation requirement. Climate change harms are the result of decades of combined greenhouse gas emissions. The violating power plant could easily claim that their emissions violations of only a few days could not have possibly caused the climate change harm. Finally, climate change harms question whether the court can effectively redress an injury caused by a global phenomenon with court injunctions and penalties against the violator. These concerns are crystallized by the Supreme Courts decision in Lujan v. Defenders of Wildlife. In this case, Defenders of Wildlife and other environmental citizen groups brought suit regarding a rule promulgated by Secretary of the Interior Lujan. The district court dismissed the case due to lack of standing, noting that while the Defenders of Wildlife and other groups could prove their vested interest in the regulation, they could not prove actual or threatened injury sufficient to fulfill the requirement.19 The appeals court reversed the decision, prompting the Supreme Court to grant certiorari. In the opinion of the Court, Justice Antonin Scalia strongly reemphasized the requirements of standing, holding that the plaintiff must have suffered an injury in factan invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.20 (internal quotation marks omitted) Justice Scalia reaffirms the original courts determination that a
M Defenders of Wildlife v. Hodel, 658 F.Supp. 43 (D. Minn. 1987).  Lujan v. Defenders of Wildlife, 112 F. 2d 117, 2130 (8th Cir. 1988), revd 500 U.S. 915 (1991).

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mere interest in the outcome of a regulation or violation does not give citizens standing to bring suit under environmental law. Climate change harms will assuredly fail the test outlined by Justice Scalia. Instead of being concrete and particularized, climate change harms are often intangible and global in their nature, affecting rain patterns more often than personal health. Similarly, climate change harms can easily be seen as conjectural or hypothetical to the skeptical eye. Justice Scalia also touches on the causation requirement in Lujan, asserting that the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.21 (internal quotation marks omitted) The diffuse responsibility for climate change, across nations as well as across generations, will also fail Scalias test so long as the defendant focuses on the greater causes of climate change rather than their own violation. The Courts more recent decision in Friends of the Earth v. Laidlaw expands the concept of injury in a citizen suit but does little to answer the questions of climate change harms.22 The decisions of lower courts in Laidlaw focused mostly on the cases mootness, as the case was tried long after the violating plant had been closed. However, in deciding that the case was not moot, the Supreme Court had to take up the question of standing and determine if the citizen groups had the initial right to bring suit. The Courts opinion by Justice Ruth Ginsburg concluded that Friends of the Earth did suffer legitimate injury based on a loss of aesthetic and recreational enjoyment. This standard extends the injury required of a citizen suit into a very intangible realm. Justice Scalia wrote a scathing dissent, citing his words in Lujan, and lamented the erosion of the Courts stronger injury standard. However, Laidlaw does little to address concerns that citizen suits will lack an avenue for litigating climate change harms. While climate change can certainly cause aesthetic and recreational harms, these harms would still be difficult to link to a single
Lujan, 112 F. 2d at 117.  Friends of the Earth, Inc. et al. v. Laidlaw Environmental Services, Inc., 528 F. 2d 167, 167215 (4th Cir. 2000).

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violator and would be difficult to redress. The Court finally clarified climate change harms directly in Massachusetts v. EPA, but purposefully refused to extend these harms to citizen suits.23 In this highly controversial and significant case, a number of states and environmental groups sued the EPA for its failure in promulgating regulations abating the greenhouse gas emissions that result in climate change. The most important aspect of the Courts decision, penned by Justice John Paul Stevens, was its broad acceptance of climate change harms. The Court held that the harms associated with climate change are serious and well recognized. Justice Stevens continues: According to the petitioners unchallenged affidavits, global sea levels rose somewhere between 10 to 20 centimeters over the 20th century as a result of global warming. [] Because the Commonwealth [of Massachusetts] owns a substantial portion of the states coastal property, it has alleged a particularized injury. By accepting Massachusetts claim of injury, the Court has legitimized climate change harms. Justice Stevens strengthens this claim by also noting, that these climate change harms are widely shared does not minimize Massachusetts interest in the outcome of this litigation. Justice Stevens has definitively answered two questions regarding climate change harms.24 First, that climate change can cause particularized and concrete harms. Second, that the global nature of climate change harms does not change their status as a legitimate injury. However, the Supreme Court in Massachusetts v. EPA was quick to differentiate their findings from the possibility of climate change harms brought in citizen suits. In order to find injury and subsequent standing for the Commonwealth of Massachusetts, the Court goes through a tortuous and arcane analysis of the States
M Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 497-560 (2007). Id.

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quasi-sovereign interest [] in all the earth and air within its domain.25 The end result is the Courts opinion: We stress here, as did Judge Tatel below, the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign state and not, as it was in Lujan, a private individual. [] We will not, therefore, entertain citizen suits to vindicate the publics nonconcrete interest in the proper administration of laws. With these words, the Court deliberately excludes citizen suits from the climate change harms legitimized under Massachusetts v. EPA. Part IIb. Climate Change and the Regulatory Burden on the EPA The impact of the Massachusetts v. EPA decision has largely remained a point of interest for legal scholars; it would likely remain so if the United States had not chosen the CAA as its vehicle for comprehensive climate change and greenhouse gas regulation. Instead, any climate change policy put forth by the United States has relied heavily on the authority of the CAA to regulate greenhouse gases as an air pollutant. With the CAA at the forefront of the nations climate strategy, the courts refusal to grant citizens standing under climate change harms threatens an essential aspect of Americas primary legislative tool against the changing climate at a time when citizen suits are most needed. House Resolution 2454 (H.R.2454) was the closest the United States has come to passing a comprehensive climate change bill.26 This bill sought to create the cap-and-trade carbon markets, automobile emissions standards, incentives for clean
 Georgia v. Tennessee Copper Co., 206 U.S. 230, 230-240 (1907).  H.R.2454, 111th Cong. (1st Sess. 2009).

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energy technology, international offsets, and the countless other plans the nation put forth to combat climate change. While this bill never passed, it serves as a good overview of how the federal government could have responded to climate change. In the one thousand four hundred and twenty-eight page bill split into five titles, the entirety of Titles III and IV amend the CAA. Within Title III alone, the CAA would be amended to include the nations Global Warming Pollution Reduction Program and a complex system of determining Greenhouse Gas Emissions Standards. Title IV, also amending the CAA, would have taken on the challenge of Transitioning to a Clean Energy Economy, creating the Energy Refund Program, and setting up an International Climate Change Adaptation Program. Significant portions of the other three titles relied on amending CAA definitions, standards, and permitting programs. Overall, H.R. 2454 sought to inflate the CAA with unprecedented and enormous responsibility. Key to this expansion of the CAA would be the EPAs responsibility for disseminating and enforcing the obligations of the act. Michael Gerrard, Professor of Law at Columbia University, puts this responsibility into perspective by illustrating that H.R. 2454 would have required fifty-nine major regulations from the EPA nearly twice more than any other agency mentioned in the bill, over the course of four years..27 Gerrard further breaks down the timeline, noting that the EPA would be required to promulgate eleven regulations within one year of the bills enactment, and sixteen regulations within two years of enactment, while ten regulations had no specific deadline. Gerrard puts this data int o context by noting that the EPA typically promulgates five to ten major regulations each year. This is a far cry from the twentyseven climate change regulations that would have been required of the EPA within two years, as well as a complete disregard for the agencys other duties. Furthermore, the regulations required by a comprehensive climate change scheme are complex and lack significant precedent. Gerrard highlights that the EPA
M Michael Gerrard, U.S. Climate Change Policy: Implementation Pathways and Obligations, Environmental Law Institution (Feb.5, 2010, 10:37AM), http://www.eli.org/pdf/ events/02.05.10dc/gerrard.pdf.

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must Propose national transportation-related [greenhouse gas] emissions reductions goals [with the Department of Transportation] and finalize [them] within 18 months of enactment. As proposed, within eighteen months, the EPA would have had to complete a nation-wide solution to the complex problem of mobile source greenhouse gas emissions, a problem that has plagued the United States for decades and helped prompt the original CAA amendments in 1970. Similarly, Gerrard notes that EPA must establish an international offset credit program with the Department of State, United States Agency for International Development, and the Offsets Integrity Advisory Board within two years. 28 The monitoring, diplomacy, and overall effort necessary to create an effective international carbon offset program in two years will stress even the collected resources of three agencies, especially since the Offsets Integrity Advisory Board is also created by the bill. Other legislative proposals to combat climate change are no more lenient in their expectations of the EPA. Senators John Kerry, Joseph Lieberman, and Lindsey Grahams collective effort to create a climate bill in the Senate relies on some of the very same mechanisms as H.R.2454. In the Senators Framework for Climate Action and Energy Independence in the U.S. Senate, the lawmakers caution against the labyrinth of command-and-control regulation29 or ceding the policy reins to the EPA and ignoring our responsibility to our constituents.30 Instead, the Senators emphasize the importance of Congressional action before the EPA moves unilaterally.31 Their framework calls for market based cap-and-trade solutions, energy independence through incentives to develop clean energy sources, and regulatory predictability through greenhouse gas emissions standards. It even calls for agricultural and forestry offset projects and vigilant carbon
Id.  Letter from John Kerry, Joseph Lieberman, Lindsey Graham, United States Senators to Barack Obama, President of United States (Dec. 10, 2009) (on file with Library of Congress). Id. at 2. Id. at 1.

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market oversight.32 However, the EPA is the only executive agency empowered to regulate air emissions and will unavoidably be the primary regulator and enforcer of the programs the Senators propose, unless their bill changes the fundamental responsibilities of EPA as well. Political rhetoric aside, the EPA will still be immeasurably burdened by any legislative approach to climate change. It is also possible that the EPA will unilaterally regulate climate change. In December 2009, the EPA found that greenhouse gases were a threat to public health and thus could be regulated as pollutants under the CAA.33 This approach towards a national climate change policy will place the entire regulatory and enforcement burden on the EPA, stressing the agency more so than any legislative approach. Any of these federal approaches to climate change will create a larger burden than the EPA has ever before experienced, while inevitably stressing its budget, its personnel, and its monitoring capabilities. However, the importance of climate change to national and international policy requires immediate action. This immense regulatory and temporal burden on the EPA magnifies the necessity and purpose of the citizen suit. Citizen suits are intended to hold the agency accountable to its obligations in filling gaps between EPA monitoring and enforcement. As the CAA, and consequently the EPA, expands to take on climate change, the agency will need citizen suits in order to ensure that regulations are promulgated in a timely and affective manner. Similarly, the EPA will need its vast network of citizen enforcement to monitor and enforce the nationwide greenhouse gas emissions levels and other regulations that will unavoidably accompany the abatement of climate change. Current judicial precedent denies citizens the ability to bring these essential suits under a CAA expanded to include climate change. The EPA is unable to change the stipulations of standing, and
 Letter from John Kerry, Joseph Lieberman, Lindsey Graham, United States Senators to Barack Obama, President of United States (Dec. 10, 2009) (on file with Library of Congress). ENViRONMENTAL PROTECTiON AGENCY, ENDANGERMENT CAUsE OR CONTRiBUTE FiNDiNGs, NO. 74239, ENDANGERMENT AND CAUsE OR CONTRiBUTE FiNDiNGs FOR GREENHOUsE GAsEs UNDER SECTiON 202(A) OF THE CLEAN AiR ACT (2009), http://www.epa.gov/climatechange/endangerment/ downloads/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf

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without Congressional leadership on the issue, the agency will lose an essential network of partners in enforcement at a time when they are most needed. PART III: CiTiZEN SUiTs EssENTiAL ROLE AND THE CONsEQUENCEs OF THEiR LOss Citizen suits were intended to be an essential part of the CAA, both to ease enforcement pressures on the EPA and to hold government bureaucracy accountable to its statutory obligations. Citizen suits have not only historically fulfilled this original legislative role, but have also grown in their influence to become an essential aspect of modern CAA enforcement alongside the highest levels of agency enforcement. The inflation of the CAA will burden the EPA more so than ever before, only further emphasizing the need for citizen suits. Part IIIa. Legislative History Legislative history is a collection of congressional statements, debates, testimonies, and legislative drafts that the courts and others use to determine the purpose behind broad, ambiguous, or original statutory language. Courts can search through the statements of the lawmakers themselves to determine the purpose and spirit of the language if the words themselves are not clear enough to administer a ruling. In this case, understanding the reasoning behind the inclusion of the citizen suit provision in the original Clean Air Act Amendments of 1970 is essential to understanding the citizen suits role in the greater mechanism of environmental enforcement and the problematic consequences of their removal. Understandably, Section 304 of the 1970 draft of the CAA drew much attention as it sought to include citizens in the realm of enforcement historically reserved for the Executive branch. In fact, one of the arguments against the inclusion of the original citizen suit provision was that the proposal is unprecedented in American

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history.34 Many other arguments against the introduction of citizen suits followed, mainly in the Senate debates.35 Senators feared that opening the Courts to citizen suits would result in a flood of civil suits, clogging courts and interfering with judges abilities to rule on other cases. Skeptical Senators also rejected the concept that the Executive needs the citizen to check its enforcement powers, asserting that there was no evidence to suggest that the Executive would fail to enforce the CAA by itself. Similarly, Senators noted that citizen suits would parallel governmental enforcement, resulting in multiple enforcement cases for the same violation that would unnecessarily burden industry and create competing precedents across the judiciary. The critiques continued with Senators going so far as to suggest that citizens would not be capable of handling complex regulatory litigation. Industry also weighed in against the inclusion of the citizen suit, arguing that the suits will make efficient and certain administration of automotive emissions regulations virtually impossible.36 The Automobile Manufacturers Association asserted that constant judicial review of agency regulations would create an unpredictable environment for the innovation and retrofitting necessary for industry to comply with the CAA. The industrial lobbyists also argued there is No reason [] why in the event of a violation the Secretary and attorney general would fail to take the necessary enforcement measure. [] Citizen complaints to the regulatory authorities may be helpful [but] are more likely to be harmful. [] The effective regulation of air pollution is too critical for such an experiment.37 Any industrys argument promoting less regulation should be met with healthy skepticism. The citizen suit provision was edited to require notice and assert federal and State dominance through preemption and
 Clean Air Act, S. 304, 91st Cong. (1970). Id. Testimony of the Automobile Manufacturers Association, Hearings before the Subcommittee on Air and Water Pollution of the Committee on Public Works United States, 91st Cong. 15821583 (1970) (statement of Automobile Manufacturers Association). Testimony of the Automobile Manufacturers Association, Hearings before the Subcommittee on Air and Water Pollution of the Committee on Public Works United States, 91st Cong. 15821583 (1970) (statement of Automobile Manufacturers Association).

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sintervention. These restrictions addressed the Senators procedural concerns and balanced the problems of frivolous law suits, competing precedents, and inadequate citizen litigation. However, procedural changes could not answer the fundamental question of whether citizen participation is necessary for the effective enforcement of the Clean Air Act. Senator Edmund Muskie of Maine, sponsor of the CAA and vocal defender of the citizen suit provision throughout the Senate debates, made many statements, which illustrate the essential role of citizen suits in the enforcement of the bill.38 Senator Muskies remarks emphasize that citizen suits are meant as a secondary means of enforcement, noting that the citizen provision is carefully restricted to actions where violations of standards and regulations or a failure on the part of the official to act are alleged.39 Similarly, Senator Muskie asserts that citizen suits are meant to motivate governmental agencies and specifies that the notice requirements are included to further encourage and provide for agency enforcement.40 In these statements, Senator Muskie clarifies that citizen suits are meant to be a secondary line of environmental enforcement that complements primary agency enforcement. However, Senator Muskie makes clear that the citizen suit provision, while secondary in its priority, is absolutely essential. While still introducing the bill, long before much of the substantive debate had started, Senator Muskie noted that citizen suits authorized in this legislation would apply important pressure. [] [I]t is clear that they should be an important tool.41 As the provision came under attack, Senator Muskie became more adamant in his support of citizen suits due to their role in effective enforcement of the CAA. In a debate with Senator Thomas Eagleton, after the restrictions had already amended the citizen suit provision, Senator Muskie stated The Senate committee felt it would be impossible to do the total job of air pollution cleanup relying wholly on the Federal bureaucracy. [] We regard [citizen
 Clean Air Act, S. 304, 91st Cong. (1970). Id. Id.  S. 4358 Together with Debate and Report Chapter 3 - September 21, 1970, page 230.

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suits] as a key element in the successful prosecution of the air pollution goals which this bill undertakes.42 The most weighty and lucid explanation of the citizen suits importance comes from Senator Muskies responses to Senator Roman Hruska, just as the 1970 CAA was ready to be passed: What we are seeking to establish is a nationwide policy. National ambient air standards implemented by plans developed at the State and local level create potentially enormous enforcement problems for State, local, and regional governments, as well as for the National Government. I think it is too much to presume that, however well staffed or well intentioned these enforcement agencies, they will be able to monitor the potential violations of the requirements contained in all the implementation plans that will be filed under this act, all the other requirements of the act, and the responses of the enforcement officers to their duties. Citizens can be a very useful instrument for detecting violations and bringing them to the attention of the enforcement agencies and courts alike. So we have provided this restrictive citizen suit provision for that purpose.43 Part IIIb. Citizen Suit Success In its conception, the citizen suit provision was seen as an essential part of the enforcement of the CAA. Yet in its practice, the citizen suit has not only realized the goals of its legislators but taken on new importance as the EPA finds its resources spread farther and its budgets pulled tighter. In an aggregate sense, citizen suits have been increasing in number and successfully filling the gaps in state and federal
 Clean Air Act, S. 304, 91st Cong. (1970). Id.

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enforcement. Due to quick settlements, resultant compliance, and the governments ability to intervene and preempt, it is hard to determine the composite effectiveness of citizen suits from year to year. However, scholars have been able to track trends in the type and number of citizen suits since their conception in 1970. During the 1970s and early in their use, the few citizen suits that were filed were typically directed at agency and government failure to perform.44 Many of these suits were filed by large environmental groups in order to ensure statutory compliance and correct promulgation of regulations. This cautious beginning is expected, given that a vast majority of the nations environmental legislation was still brand new during the 1970s and that even the most fundamental regulations were being processed. This slow start gained speed in the 1980s when the number of citizen actions increased dramatically. From 1978 to 1984, 349 citizen suit notices were filed, meanwhile, from 1984 to 1988 that number increased to 806 citizen suits.45 This significant growth in citizen suit activity also shifted focus from agency regulatory action to private industry and violator compliance.46 There are a number of explanations behind this shift in perspective and increase in activity. First, Anne Goursch Buford was appointed Administrator of the EPA in 1981 and instituted a lax enforcement regime. During this period, EPA officials were discouraged from prosecuting violators, encouraged to settle claims outside of court, and in some instances reprimanded for pursuing compliance.47 Citizen suits stepped in to ensure compliance during this period of limited enforcement. Also, the National Resource Defense Council (NRDC) launched an organized enforcement program during the 1980s that coalesced the efforts of the Sierra Club Legal Defense Fund, Friends of the Earth, Student Public Interest Research Group
M Jeffrey G. Miller, Private Enforcement of Federal Pollution Control Laws: The Citizen Suit Provisions, ALI/ABA COURsE OF STUDY (Feb. 5, 2010 10:37AM),http://files.ali-aba.org/thumbs/datastorage/skoobesruoc/pdf/ CK094-CH30_thumb.pdf. Id. Id. &M Barry Boyer & Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 BUFF. L. REV. 833, 876 (1985).

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of New Jersey, Atlantic States Legal Foundation, and Connecticut Fund for the Environment into a single coordinated citizen suit mechanism. With the original suits funded by a grant, the NRDC set up a self-sustaining program of citizen enforcement suits and picked up where the EPA enforcement fell short.48 This increased citizen activity was supported the monitoring regulations and citizen suit provisions set up to ensure compliance with the CWA. By 1982, the EPA required most entities that held water pollution permits to submit detailed Discharge Monitoring Reports to the EPA. EPA made these reports public, allowing citizen groups like the NRDC and its colleagues to readily monitor the emissions of water polluters. Along with similar programs for the CAA and other statutes, these volumes of data allowed committed and interested parties to quickly and definitively catch violators across the nation and sue for compliance.49 This burst of citizen activity filled an essential gap in EPA enforcement during the 1980s. Citizen suit scholar, and Trial Attorney at the United States Department of Justice, Steven Shermer echoes Senator Muskies original worries when he notes that for all the good intentions of the EPA and its administrators, monetary constraints always prevented the agency from fully enforcing compliance to the extent envisioned by Congress.50 The 1980s are a perfect example of the dynamic highlighted by Shermer and originally found in Senator Muskies defense of the citizen suit provision; when politics and budget constraints withheld EPA enforcement, citizens suits could, and would, fill the gap. Part IIIc. Citizen Suits in Action The role of citizen suits has continued to evolve through the 1990s and up to the present day. As the EPA and DOJ enforcement
M Michael S. Greve, The Private Enforcement of Environmental Law, 65 TUL. L. REV. 339, 8 (1990). Id.  Steven D. Shermer The Efficiency of Private Participation in Regulating and Enforcing Federal Pollution Control Laws: A Model for Citizen Involvement, 14 J. ENVTL. L. & LITIG. 461, 4 (1999).

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priorities change, citizen suits mold to fill the gaps and supplement the agencies. In more recent years, large citizen groups have been filing suit under the Resource Conservation and Recovery Act (RCRA) in order to complement strong EPA and DOJ concentration on the air and water pollution acts.51 While agencies are still quick to note their primary role in enforcement, both EPA and the Department of Justice have been strong supporters of citizen suits as a supplement to governmental enforcement.52 The Executive has also given citizen suits room to approach high profile cases easing the strain on federal enforcement resources and entrusting citizen groups with greater impact. A quick review of high profile citizen suits illustrates how important citizen groups are in the modern enforcement of environmental law and the CAA. In 2007, the United States Supreme Court ruled in favor of a number of North Carolinian environmental citizen groups in a CAA suit brought against the Duke Energy Corporation.53 The CAA required any major modification of Duke Energys power plants to operate under two key permits, the New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD). The United States originally filed suit against Duke Energy for allegedly constructing major modifications to their plants without these permits. Duke Energy responded that the plant modifications were not major and thus did not require the permits. The case hinged upon an essential understanding of the legislative language, determining how the word in the statute could be interpreted in different ways. This litigation detail is important because the Supreme Court granted certiorari to the citizen groups, not the United States. Instead of preempting or ending the action, the United States allowed the citizen groups set the final precedent regarding the interpretation of essential permitting clauses of the CAA. Even though the United States was the lead plaintiff up through the appeals process, the final responsibility was left in the
M Jeffrey G. Miller, Private Enforcement of Federal Pollution Control Laws:The Citizen Suit Provisions, ALI/ABA Course of Study (Feb. 5, 2010 10:37AM),http://files.ali-aba.org/ thumbs/datastorage/skoobesruoc/pdf/ CK094-CH30_thumb.pdf. Id.  Environmental Defense v. Duke Energy Corporation, 549 U.S. 561, 561-584 (2007).

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hands of the local North Carolina citizen groups. In addition, a similar permitting issue is currently being litigated by the National Park and Conservation Association (NPCA) against the Tennessee Valley Authority (TVA). NPCA appealed two concurrent cases against the TVA in the 6th and 11th Circuits, and both yielded separate holdings. The 6th Circuit case alleged that the TVA failed to survey the best available current technology or obtain the correct permits for the modification of a coal fired plant.54 These two standards are required by the CAA and the NPCA filed the suit in order to ensure compliance. The original court in the Eastern District of Tennessee dismissed the claims against the TVA, while the 6th Circuit reversed the decision, supporting the NPCAs claims that the TVA had violated the permitting requirements of the CAA. The very similar case in the 11th Circuit affirmed the original District Courts dismissal of claims against the TVA, finding an opposite holding against the NPCA and splitting judicial precedent on the issue.55 These controversial cases are significant because they are completely citizen prosecuted. The NPCA, along with the Sierra Club and others, has taken this essential question of CAA enforcement completely through the judicial process and will most likely be granted certiorari without the intervention of the United States. Citizen suits are not only testing the interpretation of environmental law. For example, in Sierra Club v. Portland General Electric Company, a number of citizen groups are taking on the single largest source of harmful air pollution in Oregon for violation of emissions and permitting standards under the CAA.56 Similarly, a recent case co-prosecuted by the United States and a number of environmental groups seek injunctive relief and civil penalties against the massive energy company Midwest

 National Parks Conservation Association Inc. v. Tennessee Valley Authority, 480 F. 3d (6th Cir. 2007).  National Parks Conservation Association Inc. v. Tennessee Valley Authority. 502 F.3d (11th Cir. 2007).  Sierra Club v. Portland General Electric Co., 663 F.Supp.2d 983, (D.Or. 2009).

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Generation Inc.57 It is clear that citizen suits are filling a unique and essential role in modern environmental enforcement. From their beginnings prodding and ensuring that the EPA promulgates regulation to their most recent successes testing critical areas of CAA enforcement before the Supreme Court, citizen suits have come a long way and are still gaining influence. Across their successes, citizen suits have fulfilled the roles originally envisioned by Senator Muskie and his Congress; they both fill gaps where agency enforcement is unable to step in and hold agencies accountable. Without overstepping their bounds, citizen suits have been accepted as an essential pillar of enforcement. Part IIId. Citizen Suits and Shared Moral Responsibility Citizen suits also provide essential accountability to environmental enforcement by giving citizens an opportunity to actively change their communities. This benefit has two ultimate implications: first, deterrence and accountability for local environmental violators, and second, a shared citizen responsibility for the nations greater environmental impact. The common justification for breaking the law is the evaluation weighing the benefits of violation against the costs of being caught. The combination of nationwide emissions regulations and slow federal bureaucracy has led to countless examples of companies and individuals violating environmental laws and either absorbing the fines as the cost of business or avoiding prosecution altogether. By empowering citizens to enforce federal environmental laws, the EPA and the DOJ effectively deputize every interested citizen. While every interested citizen may not have the capability of taking their local power provider to court, they have the ability to notify those who do. What results is a wide-ranging system of deterrence for local and otherwise invisible violators. EPA does not have the resources to find every minor violator, but local environmental groups have
 United States v. Midwest Generation LLC., 2010 WL 889986, (N.D.Ill. 2010).

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a significant interest in bringing local violators, big and small, to the attention of the law. Shermer elaborates that this deterrent effect is striking because of its consequent reduction in the need for expensive and time consuming enforcement actions.58 As stated before, the EPA and the DOJ are federal agencies with inherently limited funds. By their very nature, they must prioritize their prosecutions in order to preserve their budgets and attorneys. Citizen suits ease this responsibility by voluntarily bringing enforcement suits and by deterring future violations at no significant cost to the government. As a result, citizen suits complement the agencies both directly and indirectly. In another sense, this network of deterrence holds private and government industries accountable to those who actually bear the harm of their environmental violations. Citizen suit provisions personalize environmental harms, allowing citizens to actively seek justice against an environmental violator who has directly harmed them. In an age of diffuse corporate structure and slow government bureaucracy, local accountability of corporations to citizens is necessary and yet, often forgotten. Moreover, this shared, local responsibility can be used to address environmental justice concerns. Citizen suits allow any citizen, regardless of status or representation, to address injustice in a well-established judicial venue. The judicial system has its limits, including proof of redressable harm, but many environmental justice issues can fulfill this standard. Common environmental justice concerns, such as a manufacturer over-polluting in a low income, poorly represented community cause real injuries that can be addressed in citizen sponsored court action. Further, citizen groups are much better suited than state or local governments to handle these issues of justice. Shermer explains that Citizens are not as susceptible to political pressure from industry and are concerned less with attracting industry to

 Steven D. Shermer The Efficiency of Private Participation in Regulating and Enforcing Federal Pollution Control Laws: A Model for Citizen Involvement, 14 J. ENVTL. L. & LITIG. 461 (1999).

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the state.59 To that end, citizen suits can act independently from economic influences and more accurately address the issues of justice in their own community than government sponsored action. This aspect of citizen suits will only become more important as the effects of climate change are realized. Many scholars, such as Michael P. Vandenbergh and Brooke Ackerly, professor of law and professor of political science at Vanderbilt University, have noted that personal emissions must be abated through cultural change if overall carbon emissions are to stay below catastrophic levels. They suggest that as much as thirty to forty percent of Americas overall carbon emissions could be avoided with personal and cultural changes.60 Those same scholars identify that a culture of shared personal responsibility for climate change is essential to the success of any cultural change. Professors Vandenbergh and Ackerly illustrate: Although the effects of the individual, infrastructure, and macrostructure can be related (with an international agreement on climate change, presumably changes will be needed in infrastructure at the county and local levels), we can also act in ways to enhance justice at just one of those levels. These actions can [] have an impact on the inequitable distribution of climate change related harms.61 The professors note that greater environmental change, be it on the global, national, or state level, will require local change. They seek an instrument that both distributes responsibility across a population and can address climate justice issues on a local level.
 Steven D. Shermer The Efficiency of Private Participation in Regulating and Enforcing Federal Pollution Control Laws: A Model for Citizen Involvement, 14 J. ENVTL. L. & LITIG. 461 (1999). M Jack Barkenbus, Johnathon Gilligan, Michael P. Vandenbergh, Climate Change: The Low Hanging Fruit, 55 UCLA L. Rev. 1701, (2008). M Brooke Ackerly, Michael P. Vandenbergh. Climate Change Justice: The Challenge for Global Governance. GEO. INTL ENVTL. L. REV. 20: 555, (2008).

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Citizen suits can empower each citizen with responsibility for his or her local environment. Despite explicit state and federal control, they are historically empowered to hold the local industry and economy to legal standards, which can significantly impact local culture and affect greater change. In this light, citizen suits can be a tool to express moral responsibility for climate change and powerful community accountability. The use of citizen suits to express shared moral responsibility for climate change is an inherent value of the citizen suit system. The combined legislative purposes, historical successes of the provisions, and actual deterrent effect against violators reinforces the necessity and value of the citizen suit provisions in enforcement of environmental law. The United States current approach towards regulating climate change under the authority of the Clean Air Act will undercut citizens ability to bring enforcement suits and significantly harm this essential aspect of the statute. CONCLUsiON Citizen suits are an essential part of the enforcement of our nations environmental statutes. They have historically fulfilled their role, ensuring strict statutory compliance from agencies and violators. Presently, citizen suits play a unique role in the understanding and interpretation of environmental enforcement, actively bringing violators to compliance but also addressing essential enforcement questions before courts and agencies. However, the nations present approach towards climate change regulation relies heavily on the authority and enforcement power of a CAA devoid of citizen support. While citizen suits are currently an active and essential part of the CAAs enforcement scheme, judicial precedent threatens to undermine the ability of citizen suits to enforce climate change regulation. Without citizen suits, climate change policy under the authority of the CAA will be erratically enforced and poorly implemented. Congress originally responded by proposing legislations to

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protect citizen suits. The discussion drafts of H.R.2454 included updated citizen suit provisions that granted citizen suits nearly unlimited standing, particularly in the regard to climate change harms.62 Section 336, amending the citizen suit provision of the CAA, reads: (h)(1) The persons authorized by subsection (a) to commence [a citizen] action under this section shall include any person who has suffered, or reasonably expects to suffer, a harm attributable, in whole or in part, to a violation or failure to act referred to in subsection (a). (2) For purposes of this section, the term harm includes any effect of air pollution (including climate change), currently occurring or at risk of occurring, and the incremental exacerbation of any such effect or risk that is associated with a small incremental emission of any air pollutant (including greenhouse gas as defined in title VII), whether or not the effect or risk is widely shared. These additions to the citizen suit provision of the CAA directly address the questions of climate change harms and solve the fundamental problem of enforcing a CAA tailored to regulate climate change. Congressional action would trump the conflicting judicial precedent and conclusively grant citizen suit standing under climate change harms. Unfortunately, these amendments fell victim to the very same arguments that confronted the original citizen suit provision. Skeptical senators and media warned of a landslide of lawsuits that would result from the relaxed standing requirements. 63 64 It appears that the controversial nature of H.R.
 H.R.2454, 111th Cong. (1st Sess. 2009).  Inhofe-EPW Press Office, EPW Policy Beat: Suing Citizens, The Inhofe EPW Press Blog, (April 8, 2009, 10:37 AM), http://epw.senate. gov/public/index.cfm?FuseAction=Minority.Blogs&ContentRecord_ id=865ca3e7-802a-23ad-426a-80942606c3b6&Issue_id=.  Tom LoBianco, Climate bill could trigger lawsuit landslide, The Washington Times, April 10, 2009 at National Section.

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2454 and the harsh political climate led to the compromise of this essential section. With Congressional leadership on the issue in doubt, the decision to extend citizen suits standing in a world of climate change regulation will fall solely upon the courts. Therefore, the judiciary must readdress its views on citizen suit standing to include climate change harms and reintroduce this essential pillar of environmental enforcement to our nations climate change policy.

The Implications of Legal Variance due to Social Factors

By Michael W. Sharp*
Donald Blacks sociological theory of legal relativity claims that social variables not only influence the legal decision making process, but that legal outcomes are systematically determined by social factors. This paper seeks to analyze Blacks claims regarding the behavior of law and determine what implications they have, particularly in regards to the standard of equality before the law. The American conception of equality before the law requires that legal cases with similar facts be decided in a similar manner. However, this standard is not being realized due to the incorporation of social variables into the legal decision making process. After discussing the implications of this issue, this paper will examine possible ways to reduce the unwanted influence of social variables while considering the social costs of punishment and the need for judicial discretion.
* Michael W. Sharp graduated from the University of Virginia in 2010 with a double-major in Sociology and Political Philosophy, Policy and Law. Michael was inspired to write this paper after studying the Sociology of Law under Professor Donald Black, and submitted this paper as his 4th year research project for his Political Philosophy, Policy, and Law degree. He would like to thank his adviser, Carmel Pavel (University of Arizona) and his Political Philosophy, Policy, and Law classmates for their input on this project. Michael is currently employed as a legal assistant for a mid-size law firm in Richmond, Virginia and plans to attend law school in the future.

Legal Sociology and Equality Before the Law:

Sharp Table of Contents I NTRODUCTiON ..............................................81 ORGANiZATiON......................................................84 I: EQUALiTY BeFORe THe LAW.......................................85 II: BLACKS THeORY OF LAW...........................................89 III: LeGAL SOCiOLOGY..................................................92 IV: IMPLiCATiONS........................................................100 V: POSSibLe SOLUTiONS...............................................105 C O N C L U S i O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 0

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INTRODUCTiON It is more illuminating in this connection to think not of gross violations exemplified by bribery or corruption, or the abuse of the legal system to punish political enemies, but rather of the subtle distortions of prejudice and bias as these effectively discriminate against certain groups in the judicial process. John Rawls, A Theory of Justice From the year 1908, when the electric chair was first implemented for capital punishment, through 1964, the commonwealth of Virginia executed 56 black men for rape or raperelated crimes. During that same time period not a single white man was executed. Although black men accounted for less than 56% of rape offenses brought before the court, they accounted for 100% of capital punishment for rape-related crimes. Virginia was not alone in this example of institutionalized discrimination. Nationwide, three hundred ninety-nine black men were executed

WULR Vol IV, Issue I Autumn 2010 82 for rape-related crimes, compared with just 43 white men.1 Whatever the reason for this inequality, it is clear that the influence of a social variables, in this case, race, permeated into the legal decision making process. America has improved upon the blatant racial prejudice it displayed from 1908 to 1964, however, the incorporation of social variables into the legal decision-making process is still evident. The case of rape punishment in early 20th century Virginia illustrates the dangers the legal process can present when equality before the law is abandoned. Just application of the law demands that every individual is treated equally. This includes not only the right to a fair and equal hearing process, but also that similar cases produce similar results. While the inequality demonstrated by the Virginia legal system from 1908 to 1964 is not representative of the current application of the law, it does illustrate the problems produced by arbitrary sentencing. Black men were punished more harshly for no known reasons, other than the legally irrelevant variable of skin color. It is this kind of travesty that the principle of equality before the law seeks to eliminate. When like cases are decided in a similar manner, distribution of favor is avoided regardless of social position or any other social characteristic. Ideally, only legally relevant facts would be considered when applying the law, and irrelevant social factors would play no role in the legal decision making process. Unfortunately, this philosophical expectation of the law is not being met, as social factors are still influential in the legal decision-making process. This claim is not just an assertion of socially conscious protesters, but rather an observation of scientific research, specifically the findings of legal sociology. University of Virginia Professor Donald Black was the first to outline the claims of legal sociology. In his book, The Behavior of Law, he explains how the institution of law has a particular behavior that cannot only be studied, but also predicted in the future. The law has certain behavioral traits, and it responds consistently to particular conditions. For Black, the
1 Donald H. Partington, The Incidence of the Death Penalty for Rape in Virginia, 22 Wash. & Lee L. Rev. 43 (1965).

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disproportionate distribution of punishment in Virginia rape cases is not an isolated incident of racism, but rather an example of a broader behavioral trait of the law. Legal sociology contends that specific tendencies of law show that the legal process is routinely influenced by social variables that should, theoretically, be irrelevant to the outcome of a case. Black makes the case that social variables, such as social stratification, relational distance, and cultural norms, are highly influential on how the law behaves. The influence of social stratification helps explain how Virginia found itself executing a disproportionate amount of black men. The claims that legal sociology makes are certainly contrary to the typical philosophical conception of the law. The Rule of Law demands that individuals be protected from arbitrary power and receive equal protection of the law.2 As explained later, prevalent legal theory demands that similar cases be handled fairly and in a like manner. This notion that like cases be handled similarly has been a principle that the legal process has strived to fulfill. It is certainly one of the main reasons behind the Equal Protection Clause and landmark decisions like Brown v. Board of Education. However, social variables that are not considered relevant case facts are influencing legal decisions, creating a judicial system that favors certain parties over others. The goal of this paper is to identify the findings of legal sociology and to decipher the exact implications of Blacks research for the American legal process. If law truly does vary with time and space, as Black claims, and law is not solely influenced by legal variables, but social variables as well, what does that mean for the modern legal system? Are like cases being decided in a like manner? If not, is the modern legal system in need of reform? Are the problems that legal sociology presents a result of systematic flaws, or simply an inevitable result of any legal process? There appears to be a direct contradiction between the philosophical intentions of law and how law is actually being practiced. It is a clear contention that legal sociology presents a problem for modern
2 Rule of law, OXFORD ReFeReNCe ONLiNe PReMiUM (Nov. 27, 2010), http://www.oxfordreference. com.ezproxy.spl.org:2048/views/ENTRY.html?subview=Main&entry=t116.e2236&category=.

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American law. The ideals of equality that are so present in accepted legal philosophy and American principles are absent from actual legal practice. Cases with similar legal variables are producing varying outcomes because of varying social factors. If the current legal process is not achieving its intended goals, something needs to be changed. ORGANiZATiON The way in which law needs to be changed is no easy assignment. First, it is essential to understand the exact meaning of equality before the law. To establish a framework for this analysis, this paper will review what different legal analysts have written about the rule of law and equality before the law. This article will establish what exactly is meant by equality before the law and give the reader the ability to compare theory with the findings of legal sociology. Second, it is important to clarify what the study of legal sociology is. We must understand the claims of legal sociology to determine exactly where the problem lies. Thus, one goal for this article will be to adequately explain the claims of legal sociology and to highlight particular examples of the influence of social variables on law. Next, it is necessary to clarify the implications of legal sociology. One could read the claims of legal sociology and simply interpret that nothing needs to be done. Perhaps the issues raised by legal sociology are irrelevant or incurable. This article will argue that the claims of legal sociology do present a serious problem, one that must be addressed if we wish to establish a more perfect legal system. However, it is not good enough to simply state that the philosophical ideals of law are not being recognized in practice, and so this paper will also explain exactly why the disconnect between reality and philosophy is so harmful to society. A complete condemnation of the legal process will not be so easy, however. Despite the fact that unwanted social variables influence the legal decision making process, this paper will explore how the incorporation of certain social variables can be considered acceptable. Some social factors create arbitrary and unjust

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government, but others are integrated into the decision making process to result in pragmatic and rational sentences. Although the presence of many social factors is dangerous to the legal process, consideration of the social costs of punishment and the principles of judicial discretion is necessary when attempting legal reform. Finally, this paper will discuss possible methods of lessening the impact of unwanted social variables on the legal process. After examining the evidence and claims of legal sociology, it would be foolish to try to eliminate the effect of social variables on legal decisions. The influence of social time and space are so ingrained in law that eradication seems hopeless. Much variation in the application of law is also due to judicial discretion. It is too drastic, and against American principles of law, to completely abandon all forms of judicial discretion. However, just because the law cannot be made flawless does not mean we shouldnt strive for improvements. This paper will discuss several policy suggestions to help reduce the unwanted impact of social variables while maintaining the necessary amount of judicial discretion. Thus, the goal is to establish that the inclusion of certain social variables is currently a problem within the legal process, and that successful legal reform reduces the influence of irrelevant social factors while respecting the desire for judicial discretion. PART I: EQUALiTY BeFORe THe LAW A popular symbol in American law is the Greek goddess, Themis. She famously holds a scale representing the desire for equality and fairness and is often blindfolded suggesting the laws desire to ignore irrelevant factors. It is laws hope to simply weigh the facts and be blind to social factors that should have no bearing on legal outcomes. This simple image conveys the philosophical desire for equality before the law. All parties are to be treated in a like manner, and ones background or social makeup will remain irrelevant to justice. Of course, the foundation of equality before the law does not derive from a symbolic image. Rather, it is rooted in American legal doctrine and prevalent in accepted legal

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philosophy. The Declaration of Independence expresses the American desire for equal treatment. The words All men are created equal3 serves as a foundation for the American ideal of equality. This demand for equality before the law has continued through the words of Constitutional amendments and Supreme Court opinions. The 14th amendment states that no state shall deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of laws.4 The intent of this amendment was to ensure that all Americans received equal treatment before the law, and none were denied the right to a fair hearing. The landmark decision of Plessy v. Ferguson serves as a reminder of Americas strong desire for equality before the law outlined in the 14th amendment. Despite arriving at a decision that would later be overturned because it was inherently unequal, the opinion itself used the necessity of equal treatment as its foundation. Associate Justice Henry Billings Brown said in his opinion concerning the 14th amendment, the object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law.5 Even though it seems that the Supreme Court erred in its protection of equality before the law, it still believed that it was upholding this value. Plessy was, of course, later overturned in 1954 by the Supreme Court in Brown v. Board of Education. This case famously tackled the issue of segregated school systems and was brought to court because black students were denied admission into public schools designated for white students. The main finding in this case was that the separate but equal doctrine, which was affirmed by Plessy and justified segregated school systems, was an inherent violation of equality before the law.6 This decision is often cited as one of the greatest triumphs against unequal treatment before the law. That assessment is surely true. It effectively ended one despicable form of institutionalized prejudice. However,
3 THe DeCLARATiON OF INDePeNDeNCe para. 2 (U.S. 1776). 4 U.S. CONST. amend. XIV, 1. 5 Plessy v. Ferguson, 163 U.S. 537 (1896) 6 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

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as great a triumph as it was, it did not effectively end all institutionalized discrimination. In reviewing the claims of legal sociology, we will see that America is far from achieving the goals of equality established by legal doctrine and the opinions of our nations highest court. The principle of equality before the law is not just ingrained in opinions of American law. It is an important principle in western legal philosophy. Legal theorists such as John Rawls, Ronald Dworkin, Friedrich von Hayek, and Joseph Raz all insist on the importance of maintaining equality before the law. The main conclusion is that equal treatment prevents arbitrary government and, even though the law is ever-changing, one of the overall goals of law is to rid itself of morally arbitrary decisions. Without equal application of the law, the legal process becomes dangerously susceptible to unjust rulings and discriminatory practices. John Rawls claims that when discussing the rule of law, justice as regularity is simply the impartial administration of law7. Simply put, the deciders of legal cases should not favor any group or person for any reason and outcomes should be based on legal facts. Rawls adds that the rule of law also implies the precept that similar cases be treated similarly. Man could not regulate their actions by means of rules if this precept were not followed.8 Rawls argument about the need for equality before the law is quite simple. The more consistent the interpretation of rules and justifications are, the harder it is to formulate reasoned arguments for discrimination.9 Thus, when everyone is treated similarly, it is easy to notice when someone or some group is treated differently or unjustly. Rawls concedes that certain breaches of legal principles are permitted, but only in the circumstance that doing so creates the least amount of social injustice.10 Other legal theorists reiterate similar notions of equality before the law. Ronald Dworkin explains in Laws Ambition for Itself that laws goal is to work itself pure and rid itself of
7 JOHN RAWLS, A THeORY OF JUSTiCe (1971). 8 Id. at 237. 9 Id. 10Id. at 243.

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all morally arbitrary distinctions.11 This goal seems in tune with Rawls requirements of equal treatment of cases. Joseph Raz asserts that principles of natural justice must be upheld, in particular, the right to a fair hearing.12 Raz does not explicitly demand equal results, but his logic is similar. Ensuring a fair and equal process is necessary in producing equal application of justice. Friedrich von Hayek similarly values equality when he declares that the rule of law is a cornerstone of liberty. Hayek explains that law is stopped of all technicalities, this means that government in all its action is bound by rules fixed and announced before hand. He concludes that there are three essential attributes of law: law is to be general, equal, and certain.13 In essence, these theorists all reiterate Rawls demands for like cases to be treated in a like manner. Much of what von Hayek (and, to some extent, the other theorists) implies is that law is a rational and logical system. It is an application of certain rules and principles, and thus, decisions should not deviate when case facts are the same. Similar cases should lead to similar decisions because legal rules are general and certain. It just may be too high a standard to require the completely rational and logical legal system that von Hayek describes. Human error is inevitable and variation in results does not necessarily mean the legal process is flawed. However, when the variation is systematic, it hints at a larger problem. Legal sociology will show us that law does operate in a predictable manner, but not because of the logical application of rules and regulations. Rather, it is because social factors have been consistently affecting legal outcomes, creating a systematic deviation from equal application and the desire for equality before the law, thereby jeopardizing the eradication of morally arbitrary decisions. Legal sociologist Philip Selznick writes, Law is not necessarily just, but it does promise justice. We must look to the theory of law and justice to understand why that promise exists
DAviD DYZeNHAUS, eT. AL, LAW AND MORALiTY: ReADiNGS iN LeGAL PHiLOSOPHY (2007). BRiAN Z. TAMANAHA, ON THe RULe OF LAW: HiSTORY, POLiTiCS, THeORY (2004). Id. at 65-66.

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and under what conditions it may be fulfilled or abridged.14 While the current legal process may not be fulfilling its intended purposes and equality before the law is not fully realized, modern American law still promises this principle. The law promises that like cases are decided in like fashion, and that individuals are free from arbitrary punishment. Individuals are not only guaranteed equal and fair hearings, but also that legal decisions will mirror similar cases. This is how justice is achieved. After reviewing the philosophy behind the principle of equality before the law, we can understand why the promise exists. Once we understand the claims of legal sociology it is possible to determine what conditions are necessary to fulfill that promise of equality before the law and, subsequently, the promise of justice. PART II: BLACKS THeORY OF LAW Donald Black defines law as governmental social control.15 With this simple definition Black was able to operationalize his sociological study of law and develop his theory on the behavior of law. That is, Black was able to empirically study the institution of law in the same way a scientist would study biology or chemistry. The key to his research was analyzing law as a quantitative variable. Approaching law as quantifiable allowed Black to measure and compare the amount of governmental social control from case to case, and subsequently determine what trends were present in the behavior of law. Black explains that the quantity of law is known by the number and scope of prohibitions, obligations, and other standards to which people are subject, and by the rate of legislation, litigation, and adjudication.16 Every instance of law has several variables that, by comparison, can be measured and quantified. Law is still not quantifiable in the sense that a measurable number can be given to each instance of law, but rather it is quantifiable through comparison. For Black, all science is
 Jeremy Waldron, Does Law Promise Justice? 17 GA. ST. U. L. Rev. 259 (2001).  Donald Black, The Behavior of Law (1976). Id. at 3.

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comparative.17 For the purposes of this paper it is essential to know that the amount of law can be measured by legal punishment. In other words, a five-year prison sentence is more law than a oneyear sentence and less law than a ten-year sentence. A larger fine is more law than a lesser fine. Capital punishment is the greatest amount of law that can be issued, therefore it is more law than a life sentence or any other punishment. Comparing the amount of law is only worthwhile when comparing similar cases. When analyzing the behavior of law, one would need to compare the sentences of a homicide case to those of other homicides. Further, the more similar a case is, the more telling the comparison is. What Donald Black and the field of legal sociology have discovered is that even when we compare the most similar cases, meaning case evidence and crimes are nearly identical, different results are produced. When homicides with the same relevant evidence are tried, different legal outcomes occur. Most importantly, the difference in outcome is not simply due to coincidence or varying judicial opinion. Rather, the root of the variation can be attributed to social variables, such as social status or cultural distance. Black claims that social factors are, in effect, a determiner of how justice is distributed. More recently, he coined the phrase legal relativity, asserting that law is more a relative institution than a universal and egalitarian one. However, it is important to note that Donald Blacks research does not seek to pass any judgment on the state of law. He states in the preface of The Behavior of Law, this book does not judge the variation of law, nor does it recommend policy of any kind. Rather it is merely an effort to understand law as a natural phenomenon.18 Whatever Blacks intentions, the idea of legal relativity is, at the very least, a challenge to the modern conception of law. Black asserts that law is not constant, as legal minds might assume. Law is not just a rational process of rules and application, but rather a highly variable process that produces not so rational
 The Geometry of Law: an Interview with Donald Black. INTeRNATiONAL JOURNAL OF THe SOCiOLOGY OF LAW (2002).  Black, supra note 15, at xvi.

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results.19 Law is situational rather than universal.20 Black states that, only when cases of the same kind have the same social geometry do the rules of law alone determine their fate.21 The theory of legal relativity can predict the behavior of law in all societies and times, but not because law is rationally applied. Law can be predicted because it is consistently relative to social variables.22 Black describes the behavior of law with one very simple theory: Law varies in time and space.23 Behavior of law is determined by the geometry of time and space. In other words, how close one is temporally or spatially to the other parties in the judicial process, including the victim, plaintiff, judge, jury, and even the concerned public, is significant to how the law treats them. This geometrical framework has led to more specific conclusions such as downward law is greater than upward law,24 meaning that a social superior will find more success against a social inferior, and upward law varies inversely with vertical distance,25 meaning that the higher an offender is above the victim in social status, the less law he will be subject to. What is essential to understanding the claims of legal sociology is that ones social distance in a case influences how that case is decided. Distance between offender and jury is influential. For example, someone involved with the community (an insider) will see more favorable results than an out-of-towner (an outsider). Distance between offender and victim is significant as well. This paper will show in more detail later, a friend or relative killing a spouse will receive more favorable results than a stranger killing the same person. Blacks theory is predictive. He predicts that, when legal cases are compared, parties with greater social distance will receive more law than socially closer parties.
 Donald Black, Legal Relativity, ENCYCLOPeDiA OF LAW AND SOCieTY: AMeRiCAN AND GLObAL PeRSPeCTiveS (2007). Id. Id. Id.  Black, supra note 15, at 3. Id. at 21. Id. at 25.

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To further illustrate exactly how social geometry can influence the legal process it might help to refer to a familiar case, perhaps one of the most famous murder trials in the last twenty years. O.J. Simpson was accused and tried for the murder of his wife, Nicole Brown Simpson, and Ronald Goldman in 1994. At the time of trial, the evidence was overwhelmingly suggestive against Simpson. If we ask why Simpson refused to plead guilty in the face of overwhelming evidence, Black can give us an answer: Simpsons social location counteracted rather than attracted law: his social elevation above the victims (particularly his great wealth), his closeness to one of the victims (his ex-wife), and his celebrity status (a form of closeness to virtually everyone) all contributed to his resistance to law.26 In hindsight, the decision in the O.J. Simpson case was rather predictable. All we had to do was look to not at the legal facts, but at the social conditions. While the evidence did not favor Simpson, the social geometry did. Blacks theory obviously makes some very strong claims about the behavior of law. He is not suggesting that social variables occasionally affect the amount of law distributed, rather he is positive that law has a behavior that consistently varies with social factors. When comparing like cases the results of such cases will always be influenced by their social geometry. Anyone could agree that social variables might creep into the legal process, uninvited. However, Blacks claim is much stronger and much more significant. The behavior of law exists, and it is consistent throughout all legal structures. As long as social variables are present to influence a cases social geometry, legal outcomes will be influenced by more than just legally relevant evidence. Because of the strong and consistent influence that social geometry has on legal outcomes, Black has developed the theory of legal relativity. PART III: LeGAL SOCiOLOGY To further illustrate the claims of legal sociology and the influence of social variables on the outcome of legal decisions,
 The Geometry of Law: an Interview with Donald Black. INTL J.SOC. & L. (2002).

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this paper will review case studies that exemplify the claims of Donald Black. While conducting some personal research, including fieldwork with police officers27, Black developed his theory mainly using anthropological and sociological studies of other researchers. The sociology of law is based on the examination of cases from around the world, which are used as a means of studying different legal systems and societies. For the purposes of this paper I will focus on case studies that demonstrate the influence of the geometry of law on the American legal systems and others like it. Remember that these are just highlights, and not a complete summation of the evidence in favor of the behavior of law. These cases in particular demonstrate how social variables influence judicial decision-making and the sentencing process. One popular claim that Donald Black makes is that killers with greater relational distance to the victim (strangers) will receive more legal punishment than killers with less relational distance (often relatives or friends). This claim is just part of his general theory of law, but it epitomizes the role that one specific social factor can play. This relationship is exemplified in Henry P. Lundsgaardes study of homicides in Houston, Texas.28 Lundsgaarde analyzed 200 murder cases that occurred in 1969. In his study, he separated cases where the killer was a relative, the killer was a friend or associate, and the killer was a stranger. Lundsgaardes purpose was to see if the killer-victim relationship had any significant affect on the cases final legal disposition.29 The evidence found was overwhelming. According to Lundsgaarde 61% of killers of relatives escaped any form of legal penalty, 53% of killers of friendsescaped any form of legal penalty, and 36% of killers of strangers escaped legal punishment.30 Perhaps even more demonstrative of the difference was the average prison sentences for each category of killer. Lundsgaarde found that, for relatives, the average sentence was
 Donald Black, Dispute Settlement by the Police in THe SOCiAL ORGANiZATiON OF LAW, (M.P. Baumgartner ed., 1999).  Henry P. Lundsgaarde, Murder in Space City in THe SOCiAL ORGANiZATiON OF LAW, (M.P. Baumgartner ed., 1999). Id. at 148. Id. at 135-136.

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8 years. The average sentence for friends and associates was 10 years. The average sentence for strangers was 28 years.31 These statistical findings helped Lundsgaarde reach the conclusion that the severity of the penalty for killers correlates inversely with the degree of intimacy between killer and victim.32 He finishes his article, Murder in Space City, with the very simple conclusion that if a person kills a close relative he is more likely to escape punishment than if he kills a complete stranger.33 The relationship between Lundsgaardes research in Houston and Blacks theory of law is quite strong. The idea that the relationship between killer and victim influences the final outcome of a case fits perfectly with Blacks basic theory that law varies directly with relational distance. The farther the killers relationship was from the victim, the more harsh punishment, or law, the killer tends to receive. The extreme gap between average prison sentences demonstrates the strength of this relationship. Simply because of a social factor, in this case relational distance, strangers were receiving on average, 20 more years of prison time than relatives that committed the same crime. This is a perfect example of how social geometry, or the offenders social position within time and space, influences the legal decision making process. Sentencing did not simply come down to the legal facts of the case, but clearly resulted from the killers relationship with the victim. There is no legal doctrine that advocates different sentencing for such a variable, and yet it still resulted in differing punishments. Whether such variation is unjust may be unclear, but it is clear that cases reviewed by Lundsgaarde deviated from the principles of equality before the law. An article by Denis Chimaeze E. Ugwuegbu describes an experiment conducted to determine what, if any, influence the race of a rape victim, or defendant, had on a juror. The experiment used simulated juror evaluations to test the influence of race, and used different levels of evidence to gauge how that might affect juror decisions. Ugwuegbu hypothesized that jurors would be more
Id. at 136. Id. at 135. Id. at 149.

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sympathetic to race similar victims, especially in cases where the defendant was of the opposite race.34 Ugwuegbu concluded that the race of the defendant and the race of the victim inappropriately influenced the level of culpability the jurors ascribed to the defendant.35Perhaps most telling was that the experiment found that in cases in which the evidence was ambiguous the jurors judged a defendant of a dissimilar race more harshly than a racially similar defendant. When the evidence was not strong, but marginal, race became a strong determining factor in jurors decisions. Ugwuegbu also found that even in strong evidence cases (meaning strong evidence against the defendant) black jurors showed a strong bias in favor of similar raced defendants. Ugwuegbu offers some explanations for this trend, but nonetheless, Ugwuegbus experiment, again, clearly fits in with Blacks theory of law. The more jurors envision themselves to be similar to defendants, the closer they are in social geometry. Defendants become especially distant in cases when they are of a different race from the victim and juror. Race is another example of how law varies with relational distance and how social factors influence legal decisions. Regarding equality before the law, Ugwuegbus findings are much more damaging than the treatment of stranger-killers. Unlike killer-victim relationships, where some elements of reason or pragmatism may be seen in the decision making process, race is a completely arbitrary social factor for jurors to base legal decisions on. The findings of Ugwuegbus experiment suggest thatthe current system may not be very far removed from the unjust sentencing Virginia displayed from 1908-1964. Both instances show that the same guilt-irrelevant factor (race) was incorporated into the legal sentencing. A more recent case study that is equally damaging to the principle of equality before the law is the handling of Social Security disability hearings. Linda G. Mills describes in her book, A Penchant for Prejudice, how social factors led to biased
 Denis Chimaeze E. Ugwuegbu, Racial and Evidential Factors in Juror Attributions of Legal Responsibility in THe SOCiAL ORGANiZATiON OF LAW, (M.P. Baumgartner ed., 1999). Id. at 282.

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decisions by Administrative Law Judges (AJLs). Mills observed these cases, which concerned the government assistance (monetary awards) provided to those too mentally or physically disabled to work. However, these cases are unique because they are nonadversarial. This eliminates a part of the social geometry, yet Mills found that judges consistently ruled with bias and often ignored the legal facts. Mills hypothesis was that judges often disregard rules, particularly when and if it suits their predilections and prejudices.36 She found that the AJLs were particularly race and gender biased, and failed to appropriately engage the unrepresented.37 Mills concludes that the system fails to uphold its commitment to impartiality, the idea that everyone deserves uniform treatment regardless of the adjudicator hearing the individual claim.38 Mills found, through first-hand experience, the analysis of interviews and case transcripts that AJLs allowed negative emotions and stereotypes about gender and race to influence decisions. The validity of Mills claims must be considered carefully. She attributes the variation in decision making to blatant prejudice, and her argument doesnt come from the most objective standpoint. Most of Millss general observations come from her time as a lawyer representing the claimants in Social Security disability hearings who were victims of the alleged discrimination. The nature of her research makes her exact claims somewhat less convincing than previous studies. However, her findings are not that surprising in light of legal sociology. Maybe negative stereotypes arent the cause of the variation in AJL rulings, but Mills is rather convincing in arguing that variation exists. The increased social distance between mostly white male judges and minority or female claimants could reasonably be the cause of the discrimination Mills describes. While it may be easy to question Millss conclusion regarding the cause of the variation, it is quite clear that systematic variation still exists in Social Security
LiNDA G. MiLLS, A PeNCHANT FOR PRejUDiCe (1999).
Id. at 6. Id, at 8.

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disability hearings. Another study looks at the legal treatment of corporate actors. American law treats corporate entities as legal persons. Therefore, equality before the law demands they are treated the same as any individual. However, a 1980 study published by John Hagan suggests that corporate actors have a disproportionate amount of legal success when compared to individuals. Hagan claims that corporate entities not only have successfully avoided large-scale criminal prosecutions, they also have proven themselves effective in using criminal prosecutions to penalize those who offended them.39 Hagan used cases drawn from police department files and interviewed both individual and corporate victims. Using a statistical analysis of the data from case files and interview results, he concluded that corporate actors were in fact disproportionately successful in court. Interestingly, Hagan also found that the size of the corporation helped influence the outcomes of cases. He found that corporate actors are more likely than individuals to obtain convictions, and the larger the organization, the greater the likelihood of conviction.40 Specifically, Hagan found that corporate entities were far more active in court. About two-thirds of the cases reviewed had corporate victims putting individuals on trial. Further, 75% of corporations saw their accused convicted compared to just a 62% conviction rate for individual victims. Interviews showed that corporations conveyed significantly more satisfaction in their experience with the justice system. Further as repeat players, corporations have increased experience in litigation which correlates with success in the courtroom. Hagan concludes that, although corporate entities may be considered juristic persons with the same legal expectations as an individual, it appears that the criminal justice system favors corporate entities when compared to individual actors. Black states in The Behavior of Law that the more people
 John Hagan, The Corporate Advantage: A Study of the Involvement of Corporate and Individual Victims in a Criminal Justice System in THe SOCiAL ORGANiZATiON OF LAW 343-344 ( M.P. Baumgartner ed., 1999). Id. at 363.

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have, the more litigious they are, and the more success they have with their litigation as well.41 This is supported by Hagans research, which demonstrates how corporate strength in capital and legal experience has led to success in the courtroom. Further, Black predicts that law is greater in a direction toward less organization than toward more organization.42 This predictive theory explains that an organization bringing a lawsuit is more likely to win than an individual bringing a lawsuit. The corporate advantage in law certainly demonstrates a lack of equality before the law and supports Blacks claim of legal relativity. Kathleen Daly offers perhaps the most interesting study, which concerns the influence of gender, employment, and familial responsibilities on courtroom officials. Daly interviewed 35 courthouse officials in Springfield, Massachusetts from 1981 to 1982, focusing on how legal decisions were made. Daly was interested in the legal decision making process and to what extent the sex of a defendant influenced the final decision. Ultimately she found that the courthouse officials were quite frank about how gender, family, and even employment played into the distribution of legal punishment.43 Daly outlined three themes in her article, Structure and Practice of Familial-Based Justice in a Criminal Court. The first was that work and family were excuses for leniency. Judges, Probation Officers, Prosecutors, and Defense Attorneys all commented that a responsibility to others (i.e. economic support) is justification for leniency. They also reasoned offenders with stable family environments had more to lose by acting up again. The second theme was that defendants with families were subject to greater informal social control. Not only did defendants with families have more to lose, but the institution of family, in the minds of courthouse officials, acted as an effective form of social control to prevent future crime. The third theme was that women with families justifiably received more leniency than men with
 Donald Black, supra note 15, at 27. Id. at 92.  Kathleen Daly, Structure and Practice of Familial-Based Justice in a Criminal Court in THe SOCiAL ORGANiZATiON OF LAW (M.P. Baumgartner ed., 1999).

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families. Courthouse officials reasoned that women who served as caretakers had certain intangibles that had to be considered in sentencing. What Daly shows in her interviews and research is that judges and other courthouse officials take into account the social costs of punishment. It is not just the crime and the evidence that matters when issuing sentences, but what the social impact of a sentence will be. Further, defendants with families and stable jobs will receive more lenient punishments than individuals in less stable environments. Daly concludes that The courts interest in protecting family life and those dependent on the defendant promote two axes of variation in treatment between familied and non-familied defendants and between familied men and familied women. Court officials think of this differential treatment not as discrimination, but rather as a legitimate and pragmatic justice.44 Regardless of the justification that courthouse officials give, it is clear that certain social variables routinely influence the outcome of cases. In this case gender, employment, and family are factors that can determine what punishment one receives. The analysis of the social costs of punishment is an open admission that law is not distributed solely by legal factors, but by intangibles and factors outside the law. Dalys findings align with some of Blacks claims in The Behavior of Law. Black theorizes that Law varies inversely with other social control.45 In other words, the more social control outside the legal sphere (in this case informal social control of the family), the less law one will experience. Similarly, Black also predicts that law is greater in a direction toward less respectability than toward more respectability.46 In this case, the intangibles that mothers possess and the respectability of constant employment influence the amount of law distributed.

Id.  Donald Black, supra note 15, at 107. Id. at 114.

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PART IV: IMPLiCATiONS The studies that we have reviewed have shown that law can be significantly influenced by a variety of social factors. The impact of killer-victim relationships, cultural norms, social control, race, and corporate strength are all examples of legal relativity. How, then, should we interpret the claims of Blacks theory of law and legal relativity? Certainly the heavy influence of social factors is not in tune with the philosophical intentions of law. Equality before the law demands that like cases are decided in a like manner. This standard of legal equality is clearly not being achieved. It is thus important to look at how exactly this gap between legal reality and legal philosophy is shaping American society. There are other apparent problems presented by legal sociology as well. One is that legal sociology provides a way for certain legal experts to abuse the legal process. Armed with the information outlined in The Behavior of Law and future legal sociology, legal actors could potentially use social factors to their advantage. Lawyers driven to win cases could incorporate legal sociology into trial strategies, and subsequently heighten the impact of social variables on the outcome of legal cases. Along the same lines, certain individuals could become targets of litigation. Aggressive litigators looking to make the most of legal relativity could potentially target individuals who are legally disadvantaged in their particular community. Whether intentional or not, we have seen wealthy individuals, like OJ Simpson, and experienced corporate litigators already take advantage of legal relativity. Legal sociology presents several issues, but our main concern is what the behavior of law and legal relativity means to equality before the law. Equality before the law is a definitive standard of American law. It is, to some, a moral demand of the legal process. Without equal application of the law, government cannot avoid being arbitrary and unjust. If all are not held to the same standards, and some are treated with preference before the law, then law creates an unjust society where the dominant class determines the rules of society. As discussed earlier, in the United States

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equality has been a foundation of government, and the equal protection of the laws is guaranteed to its citizens in the 14th amendment of the Constitution. It is not entirely clear, however, that legal relativity is completely unjustified in American law. It certainly strays from the philosophical conception of equal protection, but there are often rational explanations for the influence of social variables on legal outcomes. As we see in Kathleen Dalys research, legal decision makers take into account the social costs of punishment. A single, unemployed man could very easily argue that he was not treated equally before the law when he consistently receives harsher punishment than a mother with a family. Yet, to agree with him would be to agree that judges should not take such social costs into account. Theoretically they shouldnt. A persons status as a mother or father is not a legal factor and does not change the severity of a crime. However, it is difficult to ignore the fact that legal decisions have social ramifications. While granting leniency for social factors such as gender, employment, and family may be violating standards of equal protection, it seems like a justifiable form of legal relativity. Lundsgaarde proposes an interpretation of the variance in legal punishment for the Houston homicides that might also count as a justified consideration of the social costs of punishment. He reasons that it is easy to see how Houston jurors might see relationally distant killers as far more dangerous to society.47 Likewise, intimate killings were seen as private acts, and not crimes that endangered the public safety. Whether this is an appropriate assessment, or even a factor that should enter the jurors mind, is up for debate. What we can see is that the varying treatment of killers based on killer-victim relationships may be due to a consideration of the social costs of punishment. Stranger-killers are more dangerous to public safety, and therefore more law must be issued to protect societys health. An essential aspect of American law demonstrated when judges and jurors incorporate the social costs of punishment into
 Lundsgaarde, supra note 28, at 136

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the decision making process is judicial discretion. Americas legal system relies on the judgment of human individuals to determine appropriate punishments. Judges and juries are given degrees of discretion on how to sentence offenders. Without judicial discretion judges would not be able to take the social costs of punishment into account. Rather, the crime and legal evidence would force rulings of legal decision makers, much like the controversial mandatory minimums for certain drug offenses do now. While judicial discretion can lead to unattractive bias, like the unequal treatment of different races revealed in the Ugwuegbu experiment, the lack of impartiality shown in Social Security disability hearings, or the trend of corporate success in court, it also allows for the humans to interpret justice and make decisions that satisfy society. It is not entirely clear, however, that legal relativity is completely unjustified in American law. It certainly strays from the philosophical conception of equal protection, but there are often rational explanations for the influence of social variables on legal outcomes. As we can see in Kathleen Dalys research, legal decision makers take into account the social costs of punishment. A single, unemployed man could very easily argue that he was not treated equally before the law when he consistently receives harsher punishment than a familied mother. But to agree with him would be to agree that judges should not take such social costs into account. Theoretically they shouldnt. A persons status as a mother or father is not a legal factor and does not change the severity of a crime. However, it is hard to ignore the fact that legal decisions have social ramifications. While granting leniency for social factors such as gender, employment, and family may be violating standards of equal protection, it seems like a justifiable form of legal relativity. Lundsgaarde proposes an interpretation of the variance in legal punishment for Houston homicides that might also count as a justified consideration of the social costs of punishment. He reasons that it is easy to see how Houston jurors might see relationally distant killers as far more dangerous to society. Likewise, intimate

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killings were seen as private acts, and not crimes that endangered the public safety. Whether this is an appropriate assessment, or even a factor that should enter the jurors mind, is up for debate. What we can see is that the varying treatment of killers based on killer-victim relationship may be due to a consideration of the social costs of punishment. Stranger killers are more dangerous to public safety and therefore more law must be issued to protect societys health. An essential aspect of American law that is demonstrated when judges and jurors incorporate the social costs of punishment into the decision making process is judicial discretion. Americas legal system relies on the judgment of human individuals to determine appropriate punishments. Judges and juries are given degrees of discretion on how to sentence offenders. Without judicial discretion judges would not be able to take the social costs of punishment into account. Rather, the crime and legal evidence would force rulings of legal decision makers, much like the controversial mandatory minimums for certain drug offenses do now. While judicial discretion can lead to unattractive bias, like the Ugwuegbu experiment, Social Security disability hearings, or the trend of corporate success in court, it also allows for the humans to interpret justice and make decisions that satisfy society. The paradigm of legal philosophy that best supports the use of legal discretion is legal realism. Oliver Wendell Holmes, a Supreme Court Chief Justice and advocate of legal realism, said that the life of law has not been logic, it has been experience.48 Legal realism supports the idea that law is not just a rigid application of rules and logic, but rather a system that produces sometimes incoherent results based on social factors and the imperfections of human kind. Further, legal realism advocates legal instrumentalism, which views the law as a tool that can justifiably address social causes.49 Legal realism does not seek to find what the law ought to be, but rather to determine what the law is.50 Blacks theory of legal relativity certainly meshes well with
Oliver Wendell Holmes Jr., Oxford Encyclopedia. Id. Id.

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legal realism. The sociological analysis of law is a perfect example of understanding what the law will do in reality. However, legal realism does not excuse a complete abandonment of equality before the law. While it may justify the incorporation of the social costs of punishment into legal decision making, it hardly justifies arbitrary advantages of race, wealth, and status in the courtroom. In fact, legal realism suggests that we must use what we have learned from legal sociology to reform the legal system. Black suggests that, if we wish to return to a completely egalitarian application of the law, we must desocialize the legal process. This would include legal reform that completely eliminates the presence and influence of social factors in the courtroom. For example, this could include a blind review of cases by legal officials, with all social factors removed.51 The most extreme suggestion that Black makes is that of electronic justice. Electronic justice would implement a computer program to conduct the ultimate blind review of legal cases.52 Blacks suggestions for desocialization could certainly achieve the intended cause: similar conduct being treated in a similar fashion. However, we must consider the extent to which we are willing to sacrifice the use of judicial discretion and the consideration of the social costs of punishment. The claims of legal relativity are sociologically and legally important. Black shows us that the intended goal of equality before the law is not being achieved, and certain social factors are having an unwanted influence on legal decisions. However, it may be the wrong conclusion to rid social factors and judicial discretion from the legal process. In accordance with legal realism we must take the information presented by legal sociology and incorporate it into legal reform. At the same time, we must accept that some deviation from strict legal egalitarianism is acceptable and that judicial discretion cannot be abandoned. It is appropriate for judges and juries to consider the social costs of punishment. Law is an instrument for good, and it is impractical to blind the process of its own social impact. Regardless, much can still be done to remove the influence
MARK COONeY, IS KiLLiNG WRONG? (2009). Id.

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of irrelevant social factors such as race, wealth, and other arbitrary variables. PART V: POSSibLe SOLUTiONS Mark Cooney, in a review of Blacks research, writes, changing the legal rules without changing the case geometry does not equalize case outcomes.53 Any legal reform that is adopted must do something to create more equal case geometries. If we accept the behavior of law as true, we cannot strive to eliminate the influence of social geometry. Our best chance at creating a more equal application of law is to reduce the possible geometrical distance between legal parties, with the ultimate goal of creating a social geometry that is consistently equidistant. This paper will not attempt to advocate any specific plan to fix the problems presented by legal relativity. I will however suggest a few ideas that may create a more perfect legal process. Before that however, I would like to outline what successful legal reform should seek to accomplish in regards to combating the unwanted influence of social variables. First, as Cooney describes, successful legal reform will reduce the inequality of social geometry in legal cases. This includes limiting the potential for extremely close and extremely distant parties, and aiming for an equidistant trial. Second, legal reform should respect judicial discretion in order to allow the valid consideration of the social costs of punishment. These are certainly somewhat contrasting goals. The less discretion that exists, the easier it is to achieve unbiased and equal application of the laws. Electronic justice would achieve such an end. But legal reform must seek to balance the need to avoid arbitrary outcomes with maintaining the ability for judicial discretion. Ultimately, successful reform would reduce the impact of completely irrelevant social factors in the courtroom, such as race, wealth, or social status, while allowing decision makers to consider the social costs of punishment.
Id. at 198.

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One appealing suggestion that Donald Black makes is to establish legal co-operative associations.54 As we noted earlier, law tends to favor more organization over less organization. Blacks system of legal co-ops would seek to level the playing field by giving every legal actor organizational strength. This would achieve the goal of creating a more equidistant social geometry in the courtroom. Legal co-ops would act similarly to insurance or prepaid legal assistance programs. As an organization, they would handle all legal conflicts that an individual wished to pursue and help an individual through any criminal or civil proceeding. In theory, individuals would be given greater organizational strength and not be as susceptible to law as they would as unorganized individuals. Legal co-ops use the same logic behind labor unions and apply it to the legal process. In essence, legal co-ops would allow everyone to join a legal union, giving them instant organizational strength. Black also advocates a more compensatory system. In his version of the legal co-op system, criminal cases could be resolved through compensation. Co-ops would offer financial satisfaction in exchange for victims dropping a case against one of its members.55 It is here that I must depart from Blacks suggestion of possible reform. He reasons that parties would often prefer monetary compensation in criminal cases, especially in cases of robberies or injury. However, we must remember that criminal acts are not private offenses, but rather crimes against the public as a whole. While the victims may be satisfied with financial compensation, society will presumably pay a price for unpunished and un-rehabilitated criminals. Black argues that co-ops can raise dues and eventually drop repeat offenders to deter future offenses, but that still leaves a window of time where criminals go unpunished for severe crimes. The premise of legal co-ops is appealing. It increases organizational strength for individuals who are at a severe disadvantage against legally powerful corporations. A similar system to what Black proposes could be implemented and it would successfully
 Donald Black, supra note 19. Id. at 51.

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reduce geometric inequality in legal cases. Individuals could essentially form their own unions just for legal purposes and thus never be disadvantaged when opposing another corporation in court. However, certain parts of Blacks description stray too far from modern legal philosophy. A compensatory system could produce new problems for American law. Legal co-ops must be limited to increasing an individuals organizational strength. If implemented effectively, legal co-ops would place individuals in groups with more comparable legal experience, capital, and organizational strength to corporations, thus approaching a more equal social geometry. Another possible reform is what Black calls partial desocialization.56 Radical desocialization and electronic justice would effectively remove the human element from the judicial process. Cases would be read on paper, with only legally relevant information presented, or a computer program would simply produce legal decisions. Partial desocialization would attempt to reduce the amount of social information presented in the legal process by introducing new procedural regulations. Procedural reform could exclude the revelation of any social variables such as wealth, race, and relationship status. It would seem impossible to remove all social evidence from the courtroom. People make assumptions about numerous social variables simply by looking at someones clothes. Regardless, it would seem beneficial, given the evidence of legal sociology, to procedurally eliminate the impact of social variables. The problem with desocialization is that it compromises the ability to consider the social costs of punishment. My thesis holds that the consideration of the social costs of punishment is a worthy consideration of judicial decision makers, but that consideration is dependent on certain information. Clearly judges could not give leniency to mothers with families if they did not have access to social information such as marital status and number of dependents. Desocialization would remove the ability for judges to make considerations of social cost. The task of finding a compromise between the two interests
Id. at 68.

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is admittedly difficult. Clearly, certain social variables, such as race and wealth, have an undesirable impact on legal outcomes and could be procedurally removed. However, if we hold that certain social variables are relevant, where do we draw the line? Which social variables do we allow and which do we prohibit? One could argue that we must therefore allow all social information and let the judges and juries decide what is relevant to the social costs of punishment. Yet, I believe that it is worth the attempt to establish some sort of procedural regulation to exclude particular social information. The implementation of such regulation should be a process though. We can work towards eliminating completely irrelevant social factors while trying to balance the desire for judicial discretion and social costs considerations. Over time, regulation can be amended, and hopefully, a proper balance can be achieved that effectively reduces the unwanted influence of social variables. One more possibility of reducing the unwanted impact of legally irrelevant social variables on legal outcomes is the delocalization of law. Individuals are guaranteed the right to a trial before a disinterested and impartial judicial officer.57 However, relational distance is a determining factor on legal punishment and hinders the guarantee of impartiality. This can be seen in the Ugwuegbu rape study, as jurors favored those relationally closer to themselves. In accordance with Blacks theory, those socially or relationally closer to the deciders of a case are likely to see more favorable results. This systematic variance may be justification for a delocalized system of law. Using Blacks theory, we can conclude that judges and jurors are likely to decide in favor of local parties when they are pitted against community outsiders. A judge born and raised in a community or elected by local voters may be destined to favor parties that are from his community. The same can be reasoned about local jurors. One possible solution for this influence of relational distance may be to delocalize the legal decision making process. Judges from another community will be more impartial deciders because they will not be as socially close to the parties of a local
 Ward v. Village of Monroeville, 409 U.S. 57 (1972)

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case. Similarly, jurors can be brought in from outside communities to decide cases as well. This delocalization would effectively reduce any advantage community insiders would get when opposing outsiders in court. Obviously there are some logistical issues with the idea of delocalization. It would be difficult for judges and jurors to travel to cases outside of their own communities. Still, delocalization may be possible. First, there would not be a constant need for a delocalized process. It would be unnecessary to have an outside judge or jury when both parties are from the same community. The delocalized process could be reserved simply for those cases when the relational distance between parties (caused by local favor) is significantly different. Further, modern technologies may reduce the need for the travel for judges and jurors. One possibility is that a delocalized judge or jury could hear a case via teleconference. They would be virtually present for the legal process without actually having to travel outside of their own community. Delocalization may still be questioned, as it runs somewhat contrary to the desire for judicial discretion and consideration of the social costs of punishment. If we accept that judges are suited to consider social costs, it can be argued that it is local judges that are best equipped to do so. Arguably, the knowledge of a communitys values may allow a local judge to best determine what the real social costs of punishment are. If judges can incorporate the social costs of punishment into the decision making process, it is important that they do so accurately. Unfortunately, the data does not exist to conclude how significantly a locally elected judge changes the geometry of a case. However, Blacks theory would suggest that a delocalized system might produce a more equidistant geometry, and subsequently, more equal legal outcomes. The delocalization of law may hinder the ability of judges to accurately incorporate the social costs of punishment, but if it can, in fact, reduce inequality in legal outcomes, it is an idea certainly worth exploring further.

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CONCLUSiON It is clear that legal sociology presents several difficult challenges for the American legal system. It questions the current level of equality before the law and further challenges what our conception of law is in general. One thing is clear. The desired amount of equality before the law is not being met. Too many irrelevant social variables are influencing law and legal decision making. Unfortunately, a solution to the problem is difficult to find. While the desire for legal equality is clear, certain legal values, such as judicial discretion and legal instrumentalism, may run contrary to the necessary steps to achieve a complete equal application of the law. Future reform must be made to eliminate unwanted and unjust social influence on the legal process. Yet, a balance must be struck between the interests of equality and judicial discretion. The first step is to recognize that the law has a consistent behavior that is relative to social context. Once this is realized we can begin to assess the law and make adjustments to the legal process so it better fits or conception of the law and its intended purpose.

A Soft Affirmative Action Practice with Tremendous Results

By William Shotzbarger*
The Rooney Rule is a hiring practice in the NFL which requires team owners and General Managers to interview at least one minority candidate before selecting a new head coach. While hard affirmative action programs use quotas and explicit preferences for the advancement of minorities, the Rooney Rule is an effective soft affirmative action program which has decreased the disparate ratio of African American head coaches to white head coaches in the NFL. This paper analyzes the discriminatory factors in place which have contributed to the lack of African American head coaches despite the prevalence of African American players on the field. It also analyzes the United States legislation which legitimizes the Rooney Rule as a hiring practice in the NFL. Finally, the paper discusses the unconscious bias toward whites which exists in the hiring practices of elite managerial organizations such as the NFL, and whether or not the rule could be effective in other sports such as college football.

The Rooney Rule:

* William Shotzbarger is a 2010 graduate of the College of Arts and Sciences of the University of Pennsylvania . His degree is in Philosophy, Politics and Economics with a concentration in Political Science. He currently works as a legal assistant for Dorothy K. Phillips & Associates, a family law firm in Philadelphia.

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Table of Contents INTRODUCTiON.........................................................112 I: LEGiSlATiVE BACKGROUND.......................................113 II: THE STATUS QUO iN THE NFL PRE-ROONEY RUlE.......117 III: DiffERENCES BETWEEN THE NBA AND NFL.............120 IV: HOW THE ROONEY RUlE CAME iNTO EffECT.............122 V: CRiTiCiSMS Of THE ROONEY RUlE..............................124 VI: IS THE ROONEY RUlE WORKiNG?.............................125 VII: COUlD THE RUlE WORK iN COllEGE FOOTbAll?.....126 CONlCUSiON............................................................127 INTRODUCTiON While U.S. judicial and legislative actions have made large advancements toward equality for African-Americans and other minorities, it is obvious that inequalities still exist today. From small neighborhoods to large skyscrapers in downtown Manhattan, it is evident that different opportunities exist for different types of people. Affirmative action began in the 1960s as an attempt to equalize these opportunities amongst disenfranchised Americans in the labor force. The Rooney Rule in the National Football League is an example of an affirmative action practice which has been successful in leveling the playing field. Named after Pittsburgh Steelers owner and chairman of the NFLs Diversity Committee Dan Rooney, the Rooney Rule was established in 2003 and requires NFL teams with a coaching vacancy to interview at least one minority candidate while the team makes their hiring decision. It must be noted that the team is not required to hire that minority candidate nor is there any quota system or requirement set in place. For this reason, the Rooney Rule is an example of soft affirmative action as opposed to hard

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affirmative action.1 This paper will analyze the United States legislation which legitimizes the practice of the Rooney Rule in NFL hiring practices. It will discuss the dismal status quo prior to the inception of the Rooney Rule as well as the pressures from outside of the NFL which helped facilitate necessary action towards equality by the League owners. It will be argued that the Rooney Rule is an example of soft affirmative action which has been very successful in tackling the unconscious bias which exists in hiring practices in elite managerial organizations such as the NFL.2 Finally, this paper will analyze whether or not the Rooney Rule could be as successful in other sports such as College Football. PART I: LEGiSlATiVE BACKGROUND: TiTlE VII Of THE CiVil RiGHTS ACT Of 1964 AND iTS ENSUiNG COURT CASES The Civil Rights Act of 1964, enacted by the 88th Congress and signed into law by Lyndon Baines Johnson, was undoubtedly a necessary piece of legislation which advanced civil rights for minorities in the United States after years of inequality. Title VII is the relevant article of the Act in regard to the Rooney Rule. Title VII prohibits discrimination by covered employers on the basis of race, color, sex, religion, or national origin. It prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, sex, religion, or national origin.3 Title VII also created the Equal Employment Opportunity Commission and is enforced by states
1 According to Collins (infra), Soft affirmative action programs encompass outreach attempts like minority recruitment and counseling, while hard affirmative action programs usually include explicit preferences or quotas that reserve a specific number of openings exclusively for members of the preferred group. While he contends that the Rooney Rule is ambiguously between the two, I contend that it is soft since there is no hard quota or preference explicitly stated. Teams do not have to hire a minority candidate; they simply have to consider hiring one. A league of all white head coaches is a possibility under the Rooney Rule, and for that reason it cannot possibly be hard affirmative action. 2 Brian Collins, Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule. V. 305. N.Y.U. L. REV. 870 (2007). Collins paper will serve as the basis and inspiration of my own paper. I hope to analyze the validity of his argument as well as add to it and make some arguments that he has chosen not to make. 3 42 U.S.C. 2000e-2000e-17

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Fair Employment Practices Agencies.4 Perhaps the Title VII case most relevant to the birth of the Rooney Rule is Griggs v. Duke Power, a 1971 decision handed down by the Warren Burger Court. Before the Civil Rights Act of 1964,5 African-American employees at Duke Power Company were only permitted to work in the Labor Department. However, after the Civil Rights Act was passed, Duke Power required either an Intelligence Quotient test or a high school diploma for any job outside of the Labor Department. This requirement severely disenfranchised African-American employees and essentially kept the pre-Civil Rights Act status quo intact.6 Chief Justice Burger delivered the unanimous opinion of the Court, holding that under Title VII, if these requirements for promotion disparately impact ethnic minority groups, then firms must demonstrate that these tests are reasonably related to the job in question. Title VII prohibits employment tests that are not a reasonable measure of job performance. Because IQ tests and the high school diploma requirement were broad-based and not directly related to job performance, Dukes promotion procedure was in violation.7 Another Title VII case relevant to the NFLs Rooney Rule is United Steelworkers of America v. Weber, a 1979 decision given again by the Burger Court. Brian Weber was a laboratory analyst who was denied from a program at Kaiser Aluminum and Chemical Corporation that would have raised his pay considerably. The program accepted applicants at a strict one-to-one ratio for African-Americans and White candidates. Kaiser had this ratio in place in an attempt to raise the number of African-American employees at their company.8 Justice Brennan delivered the 5-2 majority opinion of the
4 42 U.S.C.2000e-4 5 From here onward in the paper when I state Civil Rights Act I am referring to that of 1964 and not any other one. 6 401 U.S. 424 (1971). 7 Id. 8 443 U.S. 193 (1979). Weber was white. This is relevant because Kaiser Aluminums practice of one-to-one hiring ratio for whites and African-Americans provided an unfair advantage for African-American candidates that was not based on any statistical imbalance. On the contrary, the Rooney Rule is based on trying to level a statistical imbalance.

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Court, reversing the lower courts rulings. The Court held that there must be some evidence of a statistical imbalance in the hiring and promoting of white employees and African-American employees. Secondly, the plan (here the one-to-one ratio) cannot be a barrier to the hiring of non-minorities. The plan must contain an end date or a reasonable goal to be accomplished. Lastly, there must be some degree of flexibility in the plan. Perhaps the most interesting facet of the Courts opinion is that they stated that the lower courts rulings were consistent with the text of the Civil Rights Act but inconsistent with the intent of Congress in passing the Act. 9 Chief Justice Burger dissented, and was joined with Justice William H. Rehnquist. Burger wrote that Congress expressly prohibited the very discrimination against Brian Weber which the Court today approves.10 A third relevant affirmative action case is Johnson v. Transportation Agency of Santa Clara County. In 1987 the County of Santa Clara had an affirmative action plan to increase the percentage of underrepresented workers - in this case female bus drivers. The county had no specific number or quota requirements, but it did seek to hire a work force whose composition reflected the proportion of minorities and women in the labor force.11 There were two qualified people competing for a job, Paul Johnson and Diana Joyce. Although Johnson scored higher on the job interview and was recommended for employment by the selection committee, Joyce, having passed the job interview despite scoring lower was hired because of her sex. According to Johnson, Joyces sex was the determining factor in her hiring. The agencys affirmative action plan was invalid under the criterion in Weber which stated that the plan was to be temporary. Justice Brennan wrote the 6-3 majority opinion of the Court and held that the agencys plan represented a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the agencys work force. His opinion further stated that the plan was consistent
9 Id. Id.  480 U.S. 616 (1987).

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with Title VII of the Civil Rights Act. The opinion was important because it stated that the petitioner bears the burden of proving that the Agencys plan violates Title VII. Second, an employer seeking to justify the adoption of an affirmative action plan need not point to its prior discrimination practices, but only to a conspicuous imbalance in traditionally segregated job categories.12 Third, there must be a manifest imbalance present. In Johnson, this manifest imbalance was proven, because women were underrepresented in this traditionally segregated job category.13 A distinction must be made between the employers work force and those in the geographical areas labor force who possess the relevant qualifications for the available position. Last, Brennan held that the Agencys affirmative action plans inhibiting male employees rights was not unnecessary nor did it create an absolute bar to their advancement. This was determined because the plan did quantitatively set aside positions for women via quotas. The Agency was committed to attain a balanced work force, and did not seek to maintain a permanent racial and sexual imbalance.14 Finally, another important case in analyzing the legal validity of the Rooney Rule under Title VII is McDonnell Douglas Corporation v. Green in 1973. Percy Green, a longtime civil rights activist, was laid off by McDonnell Douglas in 1964 as the firm experienced cutbacks. From 1964 to1965, Green had participated in strikes and protests calling for civil rights for African-Americans, some of which were directed at the McDonnell Douglas Corporation. In 1965, McDonnell Douglas advertised for quality mechanics. Green applied and was likely qualified since he had already worked for the company, but was denied. McDonnell Douglas based this decision on Greens prior record of protesting against their corporation.15 The unanimous opinion was written by Justice Lewis Powell. The result of the case is that employers cannot discriminate against potential employees race and/or previous
 This part of the opinion was guided by the Weber Opinion.  480 U.S. 616 (1987) Id.  411 U.S. 792 (1973)

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illegal behavior. The more important result is the burden-shifting procedure which is described in the paragraph. This procedure is applicable to all potential Title VII cases thanks to this case. The opinion is important in that it established the McDonnell Douglas burden-shifting procedure for adjudicating a motion for summary judgment under a Title VII disparate treatment claim that lacks direct evidence of discrimination. The framework is as follows: (1) a plaintiff must establish a prima facie case16 by a preponderance of evidence; (2) the burden then shifts to the employer to rebut this prima facie case by articulating some legitimate, non-discriminatory reason for the employers rejection; (3) the employee may prevail only if he can show that the employers suit is merely a pretext for behavior actually motivated by discrimination.17 According to this framework, a plaintiff must submit a prima facie case under Title VII and prove that he or she belongs to a protected class, and that he or she applied and was qualified for a job for which the employer was accepting applicants. It must also be established that despite the applicants qualifications, he or she was rejected, and that the position continued to be held open after the applicants rejection.18 Brian Collins contends that a white coach who did not receive a head coaching position because of the Rooney Rule could bring a reverse discrimination case against the NFL and possibly the hiring team under this framework, but this issue will be addressed later in the paper.19 PART II: THE STATUS QUO iN THE NFL PRE-ROONEY RUlE While most businesses, schools, and even some professional sports leagues have been able to successfully integrate following the civil rights movement of the 1950s and 1960s,
 A prima facie case here is one in which the petitioner (Green) (i) he belongs to a racial minority; (ii) he applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with complainants qualifications. Id.  Collins, supra note 2. Id.

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until very recently the National Football League was not one of these organizations. This is surprising because the NFL is an organization with a strong presence across the entire United States. NFL teams are very diverse and its athletes are awarded solely on talent, neither on a persons academic or racial background nor job experience; furthermore, the NFL is a household name and the fact that the NFL is the highest league in the land. As Collins states, the sporting world is often thought to be a paradigm of integrated society.20 So where did and how could this discrimination in the NFL exist? In 2002, 67% of all players in the NFL were AfricanAmerican. On the other hand, only 6% of head coaches and 28% of assistant coaches were African-American.21 These type of statistics certainly constitute a manifest imbalance that was important in the Johnson case. Later in the paper I will discuss potential law suits that could have been brought against the NFL prior to the inception of the Rooney Rule, I will first discuss the biases against African-American coaching prospects Collins believes were inherently present before the rule was implemented. Collins begins his argument by pointing out that although minority employees are often well represented in lower-tier occupations, they are almost completely absent in upper-tier positions.22 Collins main argument is that the Rooney Rule is a legally viable policy that effectively counters the principal reason for the significantly low percentage of minority head coaches in the NFL, unconscious bias. Collins states that without any real exposure to qualified African-American head coaching candidates, the upper-tier managers in the NFL have commonly and unconsciously relied on racial stereotypes depicting AfricanAmericans as natural born, instinctive athletes whose success is attributable to their innate physical gifts rather than their hard work and intellect.23 Collins believes that at the very least, the Rooney
 Id. Because athletic ability is not based on race, class, income, appearance, etc., the sports world is extremely egalitarian with little to no barriers for entry. Therefore, professional sports should mirror the equality (or lack thereof) in American society.  Collins, supra note 2. Id. Id.

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Rule is successful because it brings qualified African-American head coaching candidates to the offices of teams around the league looking for head coaches and displays their competence and ability to be a head coach despite their non-existence pre-2002. Collins contends that the underrepresentation of AfricanAmericans in NFL managerial positions is caused not only by institutionalized racism, but also by the maintenance of automatic or implicit stereotypes, namely unconscious bias. Because this bias is unconscious, it is neither cognitive nor intentional, but rather it is less straightforward, less outspoken, and less honest than other overt types of racism. Collins argues that unconscious bias exists in professional sports and influences head coaching selections through the internalization of stereotypes regarding African-Americans intellectual inferiority to whites and the establishment and persistence of old boy networks.24 Regarding African-Americans alleged intellectual inferiority, Collins cites a 2005 study which showed that most sports fans viewed AfricanAmerican collegiate basketball players as mainly strong and fast while white players were mostly seen as leaders and good thinkers.25 If these types of stereotypes are applicable to football players as well, it is easy to see why NFL decision-makers would choose not to hire an African-American head coaching candidate in place of a white candidate, since NFL head coach is a high-stress job that requires an incredible amount of strategic thinking and leadership ability. Aside from the internalization of racial stereotypes, Collins believes that the other leading factor in African-American head coaches being skipped over in favor of white head coaches is the persistence of old boy networks in the NFL front-office hierarchy. In sociology, an old boy network is a term used to describe social networking systems and their perceptions prevalent among some American communities. Old boy networks tend to limit hiring practices and/or business transactions to other elites or acquaintances within a network. These networks could include
Id.  James A. Rada and Tim Wulfmeyer, Color Coded: Racial Descriptors in Television Coverage of Intercollegiate Sports, J. BROADCASTiNG & ElECTRONiC MEDiA 65, 80 (2005).

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political elites within a countrys governmental structure or even friends from a college fraternity.26 Old boy networks in the United States generally block African-Americans and other minorities due to their exclusive nature. Collins argues that old boy networks within the NFLs front office structure exclude African-Americans from authoritative positions in the league. Collins states that a head coaching vacancy begins with an already short list of candidates, most of whom are acknowledged because of connections the decision maker has with others in the sports world.27 I would have to disagree with Collins understanding of how old boy networks affect the way head coaching vacancies are filled. A coachs potential worth for a team is based on his previous successes, his reputation as a coach, and his coaching skills. Just as a team might not consider an available coach that is a part of their old boy network with a bad coaching record, similarly they would hopefully consider a minority coach with a great coaching record who is outside of their social network. While old boy networks affect the way that owners and teams make a list of available coaches, they certainly do not determine who is chosen. The final deciding factor is usually an objective, quantitative analysis of a coachs proven success in his field. PART III: DiffERENCES BETWEEN THE NBA AND NFL: TWO PATHS TO EqUAliTY iN THE COACHiNG RANKS While earlier this decade the NFL was under close scrutiny for its lack of African-American head coaches, the NBA on the other hand has had an easier path towards equality amongst head coaches. In 2002, 78% of all NBA players were African-American as were 48% of its head coaches. A decade earlier, with a similar percentage of African-American players the league could only boast a measly 7% of head coaches. Collins posits that the structural and cultural makeup of the NBA made African-American
 2004 Presidential candidates John Forbes Kerry and George Walker Bush were both members of the Skull and Bones Society at Yale University.  Collins, supra note 2.

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acumen visible to the front office, reducing NBA decision makers unconscious bias and increasing the number of African American head coaching hires.28 Additionally, differences between the two sports makes coaching an NBA team much more accessible for African-Americans than coaching an NFL team, due to two factors: firstly, the high organizational complexity in football requires decision makers to consider a coachs intellect more so than in basketball; and secondly, acceptance into and approval from old boy networks function as a prerequisite for NFL coaches while NBA coaches are evaluated more objectively.29 The different levels of complexity between the two sports is rather obvious: basketball has five players on the court at one time, while football has eleven; a basketball roster consists of 12 players, while a football team is fifty-three; in football, there are offensive and defensive squads with their own respective coordinators, while in basketball there is only one squad and one play-caller. The game of basketball is more fluid and decision-making is more in the players hands than in football, where strategy is enormously complex and coaches make play-calling decisions before each and every play.30 For this reason, the point guard in basketball is usually seen as an on-court coach, just as the quarterback in football is responsible for dictating the direction of the play that the coach has called. This is where race comes in. In basketball, most point guards are black, where in football, most quarterbacks are white and those who are black are usually viewed as running quarterbacks, which certainly undercuts their ability to make plays and lead their team.31 This is one of the stereotypes that lead to more African-American head coaches in the NBA than in the NFL. In this discussion of the NBA and the NFL let us not forget
Id. Id. Id.  Quarterbacks such as Michael Vick and Donovan McNabb are generally seen as running quarterbacks because of their ability to scramble and rush for yards as well as pass. One need not forget the 2003 controversy started by Rush Limbaugh in which he said that McNabb was not as good as the media depicted him to be, and that the media really wants to see black coaches and black quarterbacks succeed in the NFL.

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an important point. The sports entertainment industry is first and foremost a business. Sports franchises - whether NFL, or NBA, or even NHL for that matter - cannot exist without spectators buying tickets and fans watching at home on television. Collins is quick to point out that the approval of the public and the paying fan base is crucial to the success of professional sports teams. Also, while the entire fan base of a team may be diverse, the actual paying spectators at games are overwhelmingly Caucasian.32 There are many factors that lead to this such as racial disparities in socioeconomic status in urban cities, Collins believes teams with a more Caucasian clientele might be less likely to hire a minority as a head coach in an effort to maintain their unconsciously racist and biased fan base.33 Collins also talks about the face of the franchise phenomenon, which is the belief that a teams top player or head coach is expected to maintain a commercial identity appealing to team investors and fans.34 Perhaps this phenomenon has a hand in the way that decision makers think about race when they consider filling a head coaching vacancy. PART IV: HOW THE ROONEY RUlE CAME iNTO EffECT In the early part of this decade, the NFL was aware there was a manifest imbalance in the amount of its African-American and white head coaches, but they were not doing much to remedy the situation. It was an external report done by civil rights activists and attorneys Johnnie Cochran and Cyrus Mehri that put pressure on the NFL to change its hiring policies. Their report, entitled Black Coaches in the NFL: Superior performance, inferior
 Collins, supra note 2.  There are many instances where this probably is not the case. Im from Philadelphia and have been an Eagles fan my entire life. (first person?) While Philadelphia is a diverse city, the Eagles (are the Eagles the team of Philadelphia?) fans are overwhelmingly white, or at least the fans who pay $65 a ticket to see them play are. Ray Rhodes, an African-American, was our coach from 1995-1998 (Pre-Rooney Rule). Interestingly enough, after Rhodes was fired by the Eagles he coached the Green Bay Packers, a Midwest team with a much, much more Caucasian clientele. Were these teams ahead of their time, pre-Rooney Rule? Its possible, but I (first person again) would probably argue that here Collins is wrong in his assumption that teams consider the majority race of their fan base when hiring a head coach.  Collins, supra note 2.

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opportunities was successful in both bringing information to light about the problem as well as pressuring the NFL to take action or else risk legal repercussions in the form of a Title VII lawsuit. The Cochran-Mehri report recognized the fact that football is Americas game and should reflect the diversity present in America. Cochran and Mehri had already analyzed biased hiring practices in publicly traded firms such as CocaCola, Bellsouth, Johnson and Johnson, and Texaco. Cochran and Mehri found that African-Americans in the NFL and elsewhere have to significantly outperform whites to advance half as far, and when they do advance, they have much less room for error. Cochran and Mehri called upon the skills of University of Pennsylvania labor economist Dr. Janice Madden, who found that black coaches generally outperform white coaches despite their low representation in head coaching ranks. Madden found that: (1) black coaches averaged 1.1 more wins per season than white coaches (2) black coaches led their teams to the playoffs 67% of the time versus 39% of the time for white coaches (3) in their first season, black coaches averaged 2.7 more wins than white coaches in their first season (4) in their final season, terminated black coaches win an average of 1.3 more games than terminated white coaches, and (5) black coaches inherited teams with an average of 7.4 wins per season and during their tenures increased the average wins for their teams to 9.1 wins per season.35 The report found that white coaches receive more interest than black coaches in job openings and also that they receive more patience when they fail. They are the last hired and first fired according to Cochran and Mehri. The report argues that discrimination is present because of a lack of diversity among decision makers and final candidate slates. As a solution they proposed the Fair Competition Resolution. According to this resolution, the NFL commissioners office would reward one or more teams with a draft pick for engaging in noteworthy hiring practices that encourage diversity
 Johnnie Cochran and Cyrus Mehri, Black Coaches in the NFL: Superior performance, inferior opportunities. September 30, 2002.

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among management decision makers. Additionally, individual teams would place qualified minority candidates into the finalist pool for all open head coach, assistant coach and coordinator positions, unless the team wanted to decide to opt out and agreed to forfeit a draft pick. The objective to place qualified minority candidates into the finalist pool for open head coaching positions would become the Rooney Rule. However, instead of a loss of a draft pick a monetary fine would be imposed.36 Perhaps the biggest feat of the Cochran-Mehri report was that it put pressure on the NFL to change something about its hiring practices. They didnt choose to accept the propositions the attorneys wrote in their report, but a variation of one of them was ultimately accepted by the team owners of the League. Additionally, Cochran and Mehri threatened the NFL with the possibility of a Title VII lawsuit, which would have been a public relations nightmare for them. Cochran and Mehri could have represented African-American head coaches and perhaps sued under the pretense of the McDonnell Douglas burden-shifting framework, but luckily this never had to happen since the NFL implemented the Rooney Rule in 2003. PART V: CRiTiCiSMS Of THE ROONEY RUlE While the Rooney Rule appears to be a great idea for most, especially those concerned with limiting the racial inequality present today in society, the rule has had its share of criticisms. In 2003 the Detroit Lions were fined $200,000 for failing to interview a minority candidate before hiring their first choice and obvious pick for head coach Italian-American Steve Mariucci. The Lions needed a new head coach and Mariucci was the obvious best contender. He was a Michigan-native, had a 60-43 career record in the league, and was likely going to be picked up by another team if the Lions did not act quickly. Lions President Matt Millen attempted to contact five different African-American head coaching prospects, but none agreed to an interview because
Id.

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they knew that the Lions were going to eventually hire Mariucci. In this case it appears that the Rooney Rule would have been an impediment in a teams search for a head coach rather than an aid.37 Collins asks, What is accomplished by forcing a team to interview a minority candidate with no intention of hiring him?38 The Rooney Rule is only really helpful when a team is conducting a truly wide-open search for their head coach. When a team has already decided who they want, a minority candidate is merely being misled when interviewed. The Rooney Rule could lead to a series of sham interviews that merely demean the minority candidates. For this reason Collins believes that the rule forces tokenism upon the African-American coaching prospects. In the case of the Lions and the Mariucci hiring, African-American coaches realized this and denied the interview they were offered. It is ironic that the Lions were fined, given that their owner, William Clay Ford, was a former National Association for the Advancement of Colored People (NAACP) Man of the Year. It appears that the league had to make an example out of this case in order to let other teams know that they would take enforcement of the rule seriously. PART VI: IS THE ROONEY RUlE WORKiNG? According to Collins and objective statistical analysis, the rule is working. In the 2009 season, there were five AfricanAmerican head coaches employed by NFL teams. In 2006 there were seven African-American head coaches, a large increase from the two head coaches present in the 2002 pre-Rooney Rule NFL.39 In 2005, three out of the six division winning teams had AfricanAmerican head coaches. In 2006 at Super Bowl XLI, two AfricanAmerican head coaches squared off against one another for the first time in Super Bowl history. Tony Dungy started coaching well before the Rooney Rule when he was hired by the Tampa Bay Buccaneers in 1996. Lovie Smith on the other hand, attributes his
 Collins, supra note 2. Id.  Collins, supra note 2.

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hiring by the Chicago Bears as a byproduct of the Rooney Rule.40 According to John Wooten, chairman of the NFLs Fritz Pollard Alliance, I know Lovie benefitted from the Rooney Rule in getting his job. I cant tell you the details, but trust me.41 Its hard to argue that the Rooney Rule has not played a decisive role in raising the number of African-American head coaches. The rules strengths derive from its potential to deconstruct the hidden biases inherent in NFL social networks.42 The rule slows down the selection process and forces teams to act prudently when making a hiring decision. Additionally, by meeting face-to-face with minority candidates, teams are able to foster relationships with them so that they can be remembered should things not work out with the teams first choice who isnt the minority candidate. Also, the minority coach can garner a reputation as a good person and quality interviewee. The rule also allows African-American head coaching candidates multiple interviews around the league, which can further establish them in the white-dominated head coaching old boy network. These factors could significantly increase his chances of becoming a head coach in the future. PART VII: COUlD THE ROONEY RUlE WORK iN COllEGE FOOTbAll? With the advent of the rules immediate success in the NFL, many in the media are asking if the rule could be effectively applied in an attempt to diversify head coaches in the National Collegiate Athletic Association (NCAA). According to an article in the Journal of Blacks in Higher Education, the head coaching situation in the NCAA is much bleaker. As of the 2003 season, there were only four African-American head coaches in the all of Division I-A football. There were none in the Big Ten, Big Twelve, Big East, ACC, or SEC the five biggest powerhouse conferences. Fifty-two percent of college players and only 2% of all coaches
Id. Id. The Fritz Pollard Alliance, named after the first-ever African-American NFL head coach, works to achieve racial equality in the NFL. Id.

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were African-American.43 Similarly, African-Americans have made little progress in offensive and defensive coordinating jobs. This appears to be a manifest imbalance if one exists. For a variety of reasons, it appears that the Rooney Rule could not work as effectively in the NCAA as it has in the NFL. Schools have long histories and traditions, much longer than those of any professional sports team. Additionally, college football head coaches serve not only as coaches but as boosters, raising money for their team from alumni and shaking the hands of influential businessmen who might be willing to write a check for their school. For this reason, the head coach of a college football team needs to be much more on the same page as his fan base than an NFL coach, since fundraising is not a duty of NFL coaches. Despite this, Floyd Keith, president of the Black Coaches Association (BCA) and an African-American college football coach, is trying to remedy the situation. The BCA has started to issue report cards to each Division I-A school for their efforts (or lack thereof) in hiring minorities to their coaching staffs. He has also said to be starting a clothing line with messages such as Dont play where you cant coach on t-shirts. He hopes to influence top high school recruits to attend colleges that received a high grade from the BCA. Furthermore, as of 2003, Johnnie Cochran was on board to help with any Title VII litigation that may ensue from the Black Coaches Associations findings.44 45 CONClUSiON This paper has argued that the Rooney Rule is a successful example of soft affirmative action due to the fact that there are no explicit quotas or preferences for hiring coaches involved in the rule. This paper has also reviewed the relevant Title VII legislation and Supreme Court decisions which uphold the practice of the Rooney Rule in the NFL. It should be clear what unconscious bias
 The Dwindling Number of Black Head Coaches in Big-Time College Football. THE JOURNAl Of BlACKS iN HiGHER EDUCATiON, No. 38 (Winter, 2002-2003), pp. 50-52. Id.  Cochran passed away in 2005, but surely Cyrus Mehri would be willing to take the case.

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is and how the Rooney Rule successfully tackles it. Brian Collins argument has been dissected, its few false premises have been pointed out and some additional points to strengthen his argument have been added. Finally, its been argued that the Rooney Rule could not be successfully applied to NCAA football due to institutional differences in the two arenas.