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Justice Ginsburg

majority

Rivera v. Illinois

https://www.courtlistener.com/opinion/145895/rivera-v-illinois/

of [counsel’s] questions”—had prompted him to raise the issue. App. 136. Counsel’s stated reasons for challenging Gomez, the judge reported, convinced him that that “there had been a purposeful discrimination against Mrs. Gomez because of her gender.” The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge’s as sessment, it affirmed Rivera’s conviction. The Illinois High Court con cluded “that the record fails to support a prima facie case of discrimination of any kind.” 879 N.E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera’s counsel, and next, in denying Rivera’s peremptory chal lenge of Gomez. Even so, the Illinois Supreme Court rejected Rivera’s ultimate argument that the improper seating of Gomez ranked as “reversible error without a showing of preju dice.” ). Citing this Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory chal lenges.” (quoting ). Although “peremptory chal Cite as: 556 U. S. (2009) 5 Opinion of the Court lenges are ‘one means of assuring the selection of a quali fied and unbiased jury,’ ” the court explained, they are not “indispensable to a fair trial.” 2 Ill. 2d, 879 N.E. 2d, at 885 (quoting ). Accordingly, the court held, the denial of Rivera’s per emptory challenge did not qualify as a structural error requiring automatic reversal. See –20, ). The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” In that regard, the court stressed, Rivera did “not suggest that Gomez was subject to excusal for cause.” Relying on both federal and state precedents, the court proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” 879 N.E. 2d, at 887 (quoting (1999)). After reviewing the trial record, the court con cluded that Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.” Having held the error harmless beyond a reasonable doubt, the court added that it “need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.” at This comment, it appears, related to Rivera’s arguments that, even absent a free standing constitutional entitlement to peremptory chal lenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law. We granted certiorari, 554 U. S. (2008),

Justice Ginsburg

majority

Rivera v. Illinois

https://www.courtlistener.com/opinion/145895/rivera-v-illinois/

process of law. We granted certiorari, 554 U. S. (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter 6 of federal law. Compare 1 (applying automatic reversal rule); State v. Vreen, 9–932, 238– 240 (2001) (same), with 473 Mich. 5, 292– 299, (rejecting auto matic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 2 Ill. 2d., –, –1 (case below). We now affirm the judgment of the Supreme Court of Illinois. II The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory chal lenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure “the constitutional end of an impartial jury and a fair trial.” 505 U.S., at When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: the jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory chal lenges, because criminal defendants have a constitution ally protected liberty interest in their state-provided per emptory challenge rights. Cf. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (although “the Constitution does not re quire States to grant appeals as of right to criminal defen dants,” States that provide such appeals “must comport with the demands of the Due Process and Equal Protection Clauses”). The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossi ble to ascertain how a properly constituted jury—here, one Cite as: 556 U. S. (2009) 7 Opinion of the Court without juror Gomez—would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a mat ter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a per emptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e.g.,

Justice Ginsburg

majority

Rivera v. Illinois

https://www.courtlistener.com/opinion/145895/rivera-v-illinois/

is no freestanding constitutional right to peremptory challenges. See, e.g., 528 U.S., at We have character ized peremptory challenges as “a creature of statute,” v. Oklahoma, and have made clear that a State may decline to offer them at all. 505 U.S., at See also Holland v. Illinois, 493 U.S. 474, 482 (1990) (dismissing the notion “that the require ment of an ‘impartial jury’ impliedly compels peremptory challenges”). When States provide peremptory challenges (as all do in some form), they confer a benefit “beyond the minimum requirements of fair [jury] selection,” Frazier v. United States, and thus retain discretion to design and implement their own systems, 487 U.S., at1 Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. “[A] mere error of state law,” we have noted, “is not a denial of due process.” —————— 1 See Dept. of Justice, Bureau of Justice Statistics, State Court Or ganization pp. 228–232 (Table 41), http://www.ojp.usdoj. gov/bjs/pub/pdf/sco04.pdf (as visited Mar. 2009, and available in Clerk of Court’s case file) (detailing peremptory challenge rules by State). 8 (internal quotation marks omitted). See also The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” (19). The trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in is instruc tive. a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court’s error, we acknowledged, “may have resulted in a jury panel different from that which would otherwise have decided [’s] case.” But because no member of the jury as finally composed was removable for cause, we found no violation of ’s Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. at 86–91. We encountered a similar situation in and reached the same conclusion. who was tried in federal court, was entitled to exercise peremp tory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court’s erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. “[A] principal reason for peremptories,” we explained, is “to help secure the constitutional guaran tee of trial by an impartial jury.”

Justice Ginsburg

majority

Rivera v. Illinois

https://www.courtlistener.com/opinion/145895/rivera-v-illinois/

the constitutional guaran tee of trial by an impartial jury.” 528 U.S., Hav ing “received precisely what federal law provided,” and having been tried “by a jury on which no biased juror sat,” could not “tenably assert any violation of his right to due process.” Rivera’s efforts to distinguish and Martinez Cite as: 556 U. S. (2009) 9 Opinion of the Court are unavailing. First, Rivera observes, the defen dants in and did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person—Gomez—whom he perceived to be unfa vorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in and Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera’s attempt to exercise a peremptory strike against her. See, We reject the notion that a juror is constitutionally dis qualified whenever she is aware that a party has chal lenged her. Were the rule otherwise, a party could cir cumvent by insisting in open court that a trial court dismiss a juror even though the party’s peremptory challenge was discriminatory. Or a party could obtain a juror’s dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results. Second, it is not constitutionally significant that the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. The defendants in and Mar tinez-, Rivera emphasizes, were not denied their peremptory-challenge rights under applicable law—state law in and the Federal Rules of Criminal Procedure in But as we have already explained, at 7–8, errors of state law do not automatically become violations of due process. As in and Marti nez-, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez- 528 U.S., ; n. 5. 10 Rather, the trial judge’s conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimina tion requirements of our -related precedents. To hold that a one-time, good-faith misapplication of violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges. The Four teenth Amendment does not compel such a tradeoff. Rivera insists that, even without a constitutional viola

Justice Ginsburg

majority

Rivera v. Illinois

https://www.courtlistener.com/opinion/145895/rivera-v-illinois/

a tradeoff. Rivera insists that, even without a constitutional viola tion, the deprivation of a state-provided peremptory chal lenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, which suggested that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” at We disavowed this statement in observing, albeit in dicta, “that the oft-quoted language in Swain was not only unnecessary to the decision in that case but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U.S., 17, n. 4. As our recent decisions make clear, we typi cally designate an error as “structural,” therefore “re quir[ing] automatic reversal,” only when “the error ‘neces sarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” 548 U.S., 8– (quoting Neder, 5 U.S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we con front here, constitute an error of that character. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Bat son, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it “violates a defendant’s right to equal protection,” “unconstitution ally discriminate[s] against the excluded juror,” and “un Cite as: 556 U. S. (2009) 11 Opinion of the Court dermine[s] public confidence in the fairness of our system of justice.” 87. Similarly, dismissal of a juror in violation of2 we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U.S. 648 (1987). See also Gomez v. United States, 490 U.S. 858, 876 (19) (“Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” (internal quotation marks omitted)). A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e.g., ; 4 U.S. 461 Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

It is relatively easy for me to concur in the judgment in this case, since in my view the case should be judged on the basis of the Magistrate's finding that, when the first DEA agent arrived, the "tube was in plain view in the box and the bags with the white powder were visible from the end of the tube." App. to Pet. for Cert. 18a. Although this finding was challenged before the District Court, that court found it unnecessary to pass on the issue. at 12a-a. As I understand its opinion, however, the Court of Appeals accepted the Magistrate's finding: the Federal Express manager "placed the bags back in the tube, leaving them visible from the tube's end, and placed the tube back in the box"; he later gave the box to the DEA agent, who "removed the tube from the open box, took the bags out of the tube, and extracted a sample of the powder." At the very least, the Court of Appeals assumed that *127 the contraband was in plain view. The Court of Appeals then proceeded to consider whether the federal agent's field test was an illegal extension of the private search, and it invalidated the field test solely for that reason. Particularly since respondents argue here that whether or not the contraband was in plain view when the federal agent arrived is irrelevant and that the only issue is the validity of the field test, see, e. g., Brief for Respondents 25, n. 11; Tr. of Oral Arg. 28, I would proceed on the basis that the clear plastic bags were in plain view when the agent arrived and that the agent thus properly observed the suspected contraband. On that basis, I agree with the Court's conclusion in Part III that the Court of Appeals erred in holding that the type of chemical test conducted here violated the Fourth Amendment. The Court, however, would not read the Court of Appeals' opinion as having accepted the Magistrate's finding. It refuses to assume that the suspected contraband was visible when the first DEA agent arrived on the scene, conducts its own examination of the record, and devotes a major portion of its opinion to a discussion that would be unnecessary if the facts were as found by the Magistrate. The Court holds that even if the bags were not visible when the agent arrived, his removal of the tube from the box and the plastic bags from the tube and his subsequent visual examination of the bags' contents "infringed no legitimate expectation of privacy and

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

the bags' contents "infringed no legitimate expectation of privacy and hence was not a `search' within the meaning of the Fourth Amendment" because these actions "enabled the agent to learn nothing that had not previously been learned during the private search." Ante, at 120 (footnote omitted). I disagree with the Court's approach for several reasons. First, as I have already said, respondents have abandoned any attack on the Magistrate's findings; they assert that it is irrelevant whether the suspected contraband was in plain view when the first DEA agent arrived and argue only that the plastic bags could not be opened and their contents tested *128 without a warrant. In short, they challenge only the expansion of the private search, place no reliance on the fact that the plastic bags containing the suspected contraband might not have been left in plain view by the private searchers, and do not contend that their Fourth Amendment rights were violated by the duplication of the private search they alleged in the District Court was necessitated by the condition to which the private searchers returned the package. In these circumstances, it would be the better course for the Court to decide the case on the basis of the facts found by the Magistrate and not rejected by the Court of Appeals, to consider only whether the alleged expansion of the private search by the field test violated the Fourth Amendment, and to leave for another day the question whether federal agents could have duplicated the prior private search had that search not left the contraband in plain view. Second, if the Court feels that the Magistrate may have erred in concluding that the white powder was in plain view when the first agent arrived and believes that respondents have not abandoned their challenge to the agent's duplication of the prior private search, it nevertheless errs in responding to that challenge. The task of reviewing the Magistrate's findings belongs to the District Court and the Court of Appeals in the first instance. We should request that they perform that function, particularly since if the Magistrate's finding that the contraband was in plain view when the federal agent arrived were to be sustained, there would be no need to address the difficult constitutional question decided today. The better course, therefore, would be to remand the case after rejecting the Court of Appeals' decision invalidating the field test as an illegal expansion of the private search. Third, if this case must be judged on the basis that the plastic bags and their contents were concealed when the

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

the plastic bags and their contents were concealed when the first agent arrived, I disagree with the Court's conclusion that the agent could, without a warrant, uncover or unwrap the tube *129 and remove its contents simply because a private party had previously done so. The remainder of this opinion will address this issue. The governing principles with respect to the constitutional protection afforded closed containers and packages may be readily discerned from our cases. The Court has consistently rejected proposed distinctions between worthy and unworthy containers and packages, United ; and has made clear that "the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view" and does not otherwise unmistakably reveal its contents. United ; see ; Although law enforcement officers may sometimes seize such containers and packages pending issuance of warrants to examine their contents, United ; the mere existence of probable cause to believe that a container or package contains contraband plainly cannot justify a warrantless examination of its contents. Ante, at 114; United ; ; United This well-established prohibition of warrantless searches has applied notwithstanding the manner in which the police obtained probable cause. The Court now for the first time sanctions warrantless searches of closed or covered containers or packages whenever probable cause exists as a result of a prior private search. It declares, in fact, that governmental inspections following on the heels of private searches are not searches at all as long as the police do no more than the private parties have already done. In reaching this conclusion, the Court excessively expands our prior decisions recognizing *0 that the Fourth Amendment proscribes only governmental action. ; As the Court observes, the Fourth Amendment "is wholly inapplicable `to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " Ante, at 1 ). Where a private party has revealed to the police information he has obtained during a private search or exposed the results of his search to plain view, no Fourth Amendment interest is implicated because the police have done no more than fail to avert their eyes. The private-search doctrine thus has much in common with the plain-view doctrine, which is "grounded on the proposition that once police are lawfully in a position to observe an item firsthand, its owner's privacy interest in that item is lost" It also shares many of the doctrinal underpinnings of cases establishing that "the Fourth Amendment does

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

doctrinal underpinnings of cases establishing that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities," United although the analogy is imperfect since the risks assumed by a person whose belongings are subjected to a private search are not comparable to those assumed by one who voluntarily chooses to reveal his secrets to a companion. Undoubtedly, the fact that a private party has conducted a search "that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable." Ante, at 114-115. But the fact that a repository of personal property previously was searched by a private party has never been used to legitimize governmental conduct that otherwise would be subject to challenge under *1 the Fourth Amendment. If government agents are unwilling or unable to rely on information or testimony provided by a private party concerning the results of a private search and that search has not left incriminating evidence in plain view, the agents may wish to duplicate the private search to observe firsthand what the private party has related to them or to examine and seize the suspected contraband the existence of which has been reported. The information provided by the private party clearly would give the agents probable cause to secure a warrant authorizing such actions. Nothing in our previous cases suggests, however, that the agents may proceed to conduct their own search of the same or lesser scope as the private search without first obtaining a warrant. at 660- on which the majority heavily relies in opining that "[t]he additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search," ante, at 115, does not require that conclusion. JUSTICE STEVENS' opinion in Walter does contain language suggesting that the government is free to do all of what was done earlier by the private searchers. But this language was unnecessary to the decision, as JUSTICE STEVENS himself recognized in leaving open the question whether "the Government would have been required to obtain a warrant had the private party been the first to view [the films]," n. 9, and in emphasizing that "[e]ven though some circumstances — for example, if the results of the private search are in plain view when materials are turned over to the Government — may justify the Government's reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

search unless it has the right to make an independent search." Nor does JUSTICE BLACKMUN's dissent in Walter necessarily support today's holding, for it emphasized that the opened containers *2 turned over to the Government agents "clearly revealed the nature of their contents," ; see and the facts of this case, at least as viewed by the Court, do not support such a conclusion. Today's decision also is not supported by the majority's reference to cases involving the transmission of previously private information to the police by a third party who has been made privy to that information. Ante, at 117-118. The police may, to be sure, use confidences revealed to them by a third party to establish probable cause or for other purposes, and the third party may testify about those confidences at trial without violating the Fourth Amendment. But we have never intimated until now that an individual who reveals that he stores contraband in a particular container or location to an acquaintance who later betrays his confidence has no expectation of privacy in that container or location and that the police may thus search it without a warrant. That, I believe, is the effect of the Court's opinion. If a private party breaks into a locked suitcase, a locked car, or even a locked house, observes incriminating information, returns the object of his search to its prior locked condition, and then reports his findings to the police, the majority apparently would allow the police to duplicate the prior search on the ground that the private search vitiated the owner's expectation of privacy. As JUSTICE STEVENS has previously observed, this conclusion cannot rest on the proposition that the owner no longer has a subjective expectation of privacy since a person's expectation of privacy cannot be altered by subsequent events of which he was unaware. The majority now ignores an individual's subjective expectations and suggests that "[t]he reasonableness of an official invasion of a citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred." Ante, at 115. On that view, however, the reasonableness of a particular individual's remaining expectation of privacy should turn entirely on whether the private *3 search left incriminating evidence or contraband in plain view. Cf. 665 If the evidence or contraband is not in plain view and not in a container that clearly announces its contents at the end of a private search, the government's subsequent examination of the previously searched object necessarily constitutes an independent, governmental search that infringes Fourth Amendment privacy interests. 447

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

independent, governmental search that infringes Fourth Amendment privacy interests. 447 U.S., at The majority opinion is particularly troubling when one considers its logical implications. I would be hard-pressed to distinguish this case, which involves a private search, from (1) one in which the private party's knowledge, later communicated to the government, that a particular container concealed contraband and nothing else arose from his presence at the time the container was sealed; (2) one in which the private party learned that a container concealed contraband and nothing else when it was previously opened in his presence; or (3) one in which the private party knew to a certainty that a container concealed contraband and nothing else as a result of conversations with its owner. In each of these cases, the approach adopted by the Court today would seem to suggest that the owner of the container has no legitimate expectation of privacy in its contents and that government agents opening that container without a warrant on the strength of information provided by the private party would not violate the Fourth Amendment. Because I cannot accept the majority's novel extension of the private-search doctrine and its implications for the entire concept of legitimate expectations of privacy, I concur only in Part III of its opinion and in the judgment.

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

The concept of a federal general common law, lurking (to use Justice Holmes' phrase) as a "brooding omnipresence in the sky," was questioned for some time before being firmly rejected in Erie R. See Southern Pacific ; Black & White Taxicab & Transfer Erie mandates that a federal court sitting in diversity apply the substantive law of the forum State, absent a federal statutory or constitutional directive to the See also 28 U.S. C. 1652 ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the *227 United States, in cases where they apply"). In decisions after Erie, this Court made clear that state law is to be determined in the same manner as a federal court resolves an evolving issue of federal law: "with the aid of such light as [is] afforded by the materials for decision at hand, and in accordance with the applicable principles for determining state law." See also In this case, we must decide specifically whether a federal court of appeals may review a district court's determination of state law under a standard less probing than that applied to a determination of federal law. I The issue presented arises out of a contract dispute between a college and one of its students. Petitioner Salve Regina College is an institution of higher education located in Newport, R. I. Respondent Sharon L. Russell was admitted to the college and began her studies as a freshman in 1982. The following year, respondent sought admission to the college's nursing department in order to pursue a bachelor of science degree in nursing. She was accepted by the department and began her nursing studies in the fall of 1983. Respondent, who was 5'6" tall, weighed in excess of 300 pounds when she was accepted in the nursing program. Immediately after the 1983 school year began, respondent's weight became a topic of commentary and concern by officials of the nursing program. Respondent's first year in the program was marked by a series of confrontations and negotiations concerning her obesity and its effect upon her ability to complete the clinical requirements safely and satisfactorily. During her junior year, respondent signed a document that was designated as a "contract" and conditioned her further *228 participation in the nursing program upon weekly attendance at a weight-loss seminar and a realized average loss of two pounds per week. When respondent failed to meet these commitments, she was asked

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

When respondent failed to meet these commitments, she was asked to withdraw from the program and did so. She transferred to a nursing program at another college, but had to repeat her junior year in order to satisfy the transferee institution's 2-year residency requirement. As a consequence, respondent's nursing education took five years rather than four. She also underwent surgery for her obesity. In 1987, respondent successfully completed her nursing education, and she is now a registered nurse. Soon after leaving Salve Regina College, respondent filed this civil action in the United States District Court for the District of Rhode Island. She asserted, among others, claims based on (1) intentional infliction of emotional distress, (2) invasion of privacy, and (3) nonperformance by the college of its implied agreement to educate respondent.[1] Subject-matter jurisdiction in the District Court was based on diversity of citizenship. See 28 U.S. C. 1332. The parties agree that the law of Rhode Island applies to all substantive aspects of the action. See Erie R. At the close of plaintiff-respondent's case in chief, the District Court directed a verdict for the individual defendants on all three of the remaining claims, and for the college on the claims for intentional infliction of emotional distress and *229 invasion of privacy. App. 82. The court, however, denied the college's motion for a directed verdict on the breach-of-contract claim, reasoning that "a legitimate factual issue" remained concerning whether "there was substantial performance by the plaintiff in her overall contractual relationship at Salve Regina." At the close of all the evidence, the college renewed its motion for a directed verdict. It argued that under Rhode Island law the strict commercial doctrine of substantial performance did not apply in the general academic context. Therefore, according to petitioner, because respondent admitted she had not fulfilled the terms of the contract, the college was entitled to judgment as a matter of law. The District Court denied petitioner's motion. Acknowledging that the Supreme Court of Rhode Island, to that point, had limited the application of the substantial-performance doctrine to construction contracts, the District Court nonetheless concluded, as a matter of law, that the Supreme Court of Rhode Island would apply that doctrine to the facts of respondent's case. The Federal District Judge based this conclusion, in part, on his observation that "I was a state trial judge for 18 and ½ years, and I have a feel for what the Rhode Island Supreme Court will do or won't do." Accordingly, the District Court submitted the breach-of-contract claim to the jury. The court instructed the jury: "The

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

claim to the jury. The court instructed the jury: "The law provides that substantial and not exact performance accompanied by good faith is what is required in a case of a contract of this type. It is not necessary that the plaintiff have fully and completely performed every item specified in the contract between the parties. It is sufficient if there has been substantial performance, not necessarily full performance, so long as the substantial performance was in good faith and in compliance with the contract, except for some minor and relatively unimportant deviation or omission." *230 The jury returned a verdict for respondent, and determined that the damages were $30,513.40. Judgment was entered. Both respondent and petitioner appealed. The United States Court of Appeals for the First Circuit affirmed. It first upheld the District Court's directed verdict dismissing respondent's claims for intentional infliction of emotional distress and invasion of privacy. It then turned to petitioner's argument that the District Court erred in submitting the breach-of-contract claim to the jury. Rejecting petitioner's argument that, under Rhode Island law, the doctrine of substantial performance does not apply in the college-student context, the court stated: "In this case of first impression, the district court held that the Rhode Island Supreme Court would apply the substantial performance standard to the contract in question. In view of the customary appellate deference accorded to interpretations of state law made by federal judges of that state, ; we hold that the district court's determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error." Petitioner college sought a writ of certiorari from this Court. It alleged that the Court of Appeals erred in deferring to the District Court's determination of state law.[2] A *231 majority of the Courts of Appeals, although varying in their phraseology, embrace a rule of deference similar to that articulated by the Court of Appeals in this case. See, e. g., and Two Courts of Appeals, however, have broken ranks recently with their sister Circuits. They have concluded that a district-court determination of state law is subject to plenary review by the appellate court. See and In re McLinn, We granted certiorari to resolve the conflict. II We conclude that a court of appeals should review de novo a district court's determination of state law. As a general matter, of course, the courts of appeals are vested with plenary appellate authority over final decisions of district courts. See 28 U.S. C. 1291. The obligation of responsible appellate jurisdiction implies the requisite authority to review independently a lower court's

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

implies the requisite authority to review independently a lower court's determinations. Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge's legal research with memoranda and briefs. Thus, *232 trial judges often must resolve complicated legal questions without benefit of "extended reflection [or] extensive information." Coenen, To Defer or Not to Defer: a Study of Federal Circuit Court Deference to District Court Rulings on State Law, Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties' briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge. Perhaps most important, courts of appeals employ multijudge panels, see 28 U.S. C. 46(b) and (c), that permit reflective dialogue and collective judgment. Over 30 years ago, Justice Frankfurter accurately observed: "Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussion; without adequate discussion there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions." Independent appellate review necessarily entails a careful consideration of the district court's legal analysis, and an efficient and sensitive appellate court at least will naturally consider this analysis in undertaking its review. Petitioner readily acknowledges the importance of a district court's reasoning to the appellate court's review. See Tr. of Oral Arg. 11, 19-22. Any expertise possessed by the district court will inform the structure and content of its conclusions of law and thereby become evident to the reviewing court. If the court of appeals finds that the district court's analytical sophistication *233 and research have exhausted the state-law inquiry, little more need be said in the appellate opinion. Independent review, however, does not admit of unreflective reliance on a lower court's inarticulable intuitions. Thus, an appropriately respectful application of de novo review should encourage a district court to explicate with care the basis for its legal conclusions. See Fed. Rule

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

care the basis for its legal conclusions. See Fed. Rule Civ. Proc. 52(a) (requiring the district court to "state separately its conclusions of law"). Those circumstances in which Congress or this Court has articulated a standard of deference for appellate review of district-court determinations reflect an accommodation of the respective institutional advantages of trial and appellate courts. In deference to the unchallenged superiority of the district court's factfinding ability, Rule 52(a) commands that a trial court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In addition, it is "especially common" for issues involving supervision of litigation to be reviewed for abuse of discretion. See Finally, we have held that deferential review of mixed questions of law and fact is warranted when it appears that the district court is "better positioned" than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine. ; see also Cooter & ; Nothing about the exercise of diversity jurisdiction alters these functional components of decisionmaking or otherwise *234 warrants departure from a rule of independent appellate review. Actually, appellate deference to the district court's determination of state law is inconsistent with the principles underlying this Court's decision in Erie. The twin aims of the Erie doctrine—"discouragement of forum-shopping and avoidance of inequitable administration of the laws," —are components of the goal of doctrinal coherence advanced by independent appellate review. As respondent has conceded, deferential appellate review invites divergent development of state law among the federal trial courts even within a single State. Tr. of Oral Arg. 34-36. Moreover, by denying a litigant access to meaningful review of state-law claims, appellate courts that defer to the district courts' state-law determinations create a dual system of enforcement of state-created rights, in which the substantive rule applied to a dispute may depend on the choice of forum. Cf. Erie, -75 ] made rights enjoyed under the unwritten `general law' vary according to whether enforcement was sought in the state or in the federal court"). Neither of these results, unavoidable in the absence of independent appellate review, can be reconciled with the commands of Erie. Although some might say that this Court has not spoken with a uniformly clear voice on the issue of deference to a district judge's determination of state law, a careful consideration of our cases makes apparent the duty of appellate courts to provide meaningful review of such

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

duty of appellate courts to provide meaningful review of such a determination. In a series of cases decided soon after Erie, the Court noted that the appellate courts had applied general federal law instead of the law of the respective States, and remanded to the Courts of Appeals for consideration of the applicable principles of state law. See, e. g., New York Life Ins. and It is true that in *235 this Court remanded the case to the District Court for application of state law. The Court noted, however, that the law of the State was firmly settled, and emphasized: "Were the question in doubt or deserving further canvass, we would of course remand the case to the Court of Appeals to pass on this question of [state] law."[3] III In urging this Court to adopt the deferential standard embraced by the majority of the Courts of Appeals, respondent offers two arguments. First, respondent suggests that the appellate courts professing adherence to the rule of deference actually are reviewing de novo the district-court determinations of state law. Second, respondent presses the familiar contention that district judges are better arbiters of unsettled state law because they have exposure to the judicial system of the State in which they sit. We reject each of these arguments. A Respondent primarily contends that the Courts of Appeals that claim to accord special consideration to the District Court's state-law expertise actually undertake plenary review of a determination of state law. According to respondent, this is simply de novo review "cloth[ed] in `deferential' robes." Brief for Respondent 15. In support of this contention, respondent refers to several decisions in which the appellate court has announced that it is bound to review deferentially a district court's determination of state law, yet nonetheless has found that determination to constitute reversible *236 error. Afram Export ; Respondent also relies on cases in which the Courts of Appeals, while articulating a rule of deference, acknowledge their obligation to scrutinize closely the District Court's legal conclusions. See See also In re McLinn, 739 F. 2d, at 1405 ("The majority overreacts to a problem that is basically one of terminology"). We decline the invitation to assume that courts of appeals craft their opinions disingenuously. The fact that an appellate court overturns an erroneous determination of state law in no way indicates that the appellate court is not applying the rule of deference articulated in the opinion. The cases cited by respondent confirm this. In Foster, for example, the Court of Appeals articulated a rule of deference, yet cautioned: "We have not, however,

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

a rule of deference, yet cautioned: "We have not, however, failed to closely examine the matter ourselves." Respondent would have us interpret this caveat as an acknowledgment of the appellate court's obligation to review the state-law question de novo. See Brief for Respondent 17-18, and n. 23. The Court of Appeals, however, expressly acknowledged that it would not reverse the District Court's determination "unless its analysis is `fundamentally deficient, without a reasonable basis, or contrary to a reported state-court opinion.'" Foster, 902 F. 2d, at 1318 (citations omitted). After reviewing the applicable law in some detail, the Court of Appeals concluded: "[T]he district court's interpretation of the applicable Arkansas law is certainly not deficient in analysis and is reasonable." This neither purports to be, nor is, a conclusion following from de novo review. Nor does it suffice to recognize that little substantive difference may separate the form of deference articulated and applied by the several Courts of Appeals and the independent appellate review urged by petitioner. Respondent argues *237 that the subtle differences between these standards are insufficient to warrant intrusion into the manner in which appellate courts review state-law determinations. A variation of this argument forms the framework upon which the dissent in McLinn rests. See As a practical matter, respondent and the dissent in McLinn frequently may be correct. We do not doubt that in many cases the application of a rule of deference in lieu of independent review will not affect the outcome of an appeal. In many diversity cases the controlling issues of state law will have been squarely resolved by the state courts, and a district court's adherence to the settled rule will be indisputably correct. See, e. g., -205. In a case where the controlling question of state law remains unsettled, it is not unreasonable to assume that the considered judgment of the court of appeals frequently will coincide with the reasoned determination of the district court. Where the state-law determinations of the two courts diverge, the choice between these standards of review is of no significance if the appellate court concludes that the district court was clearly wrong.[4] Thus, the mandate of independent review will alter the appellate outcome only in those few cases where the appellate * court would resolve an unsettled issue of state law differently from the district court's resolution, but cannot conclude that the district court's determination constitutes clear error. See, e. g., In re McLinn, 739 F. 2d, at 1397 ("The panel indicated that if the question of law were reviewed under the deferential standard that we have

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

law were reviewed under the deferential standard that we have applied in the past, which permits reversal only for clear error, then they would affirm; but if they were to review the determination under an independent de novo standard, they would reverse"). These few instances, however, make firm our conviction that the difference between a rule of deference and the duty to exercise independent review is "much more than a mere matter of degree." Bose When de novo review is compelled, no form of appellate deference is acceptable. B Respondent and her amicus also argue that de novo review is inappropriate because, as a general matter, a district judge is better positioned to determine an issue of state law than are the judges on the court of appeals. This superior capacity derives, it is said, from the regularity with which a district judge tries a diversity case governed by the law of the forum State, and from the extensive experience that the district judge generally has had as practitioner or judge in the forum State. See Brief for Respondent 7-10; Brief for Ford Motor as Amicus Curiae 9-11. We are unpersuaded. As an initial matter, this argument seems to us to be founded fatally on overbroad generalizations. Moreover, and more important, the proposition that a district judge is better able to "intuit" the answer to an unsettled question of state law is foreclosed by our holding in Erie. The very essence of the Erie doctrine is that the bases of state law are presumed to be communicable by the parties to a federal judge no less than to a state judge. Almost 35 years ago, Professor Kurland stated: "Certainly, if the law *239 is not a brooding omnipresence in the sky over the United States, neither is it a brooding omnipresence in the sky of Vermont, or New York or California." Kurland, Mr. Justice Frankfurter, the Supreme Court and the Erie Doctrine in Diversity Cases, 67 Yale L. J. 187, 217 (1957). See Southern Pacific 244 U. S., at ("The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified"). Similarly, the bases of state law are as equally communicable to the appellate judges as they are to the district judge. To the extent that the available state law on a controlling issue is so unsettled as to admit of no reasoned divination, we can see no sense in which a district judge's prior exposure or nonexposure to the state judiciary can be said to facilitate the

Justice White

majority

Smalis v. Pennsylvania

https://www.courtlistener.com/opinion/111663/smalis-v-pennsylvania/

At the close of the prosecution's case in chief, the trial court dismissed certain charges against petitioners on the ground that the evidence presented was legally insufficient to support a conviction. The question presented is whether the Double Jeopardy Clause bars the prosecution from appealing this ruling. I Petitioners, husband and wife, owned a building housing a restaurant and some apartments that burned under suspicious circumstances, killing two of the tenants. Petitioners were charged with various crimes in connection with this fire, including criminal homicide, reckless endangerment, and causing a catastrophe.[1] They opted for a bench trial, and at the close of the prosecution's case in chief challenged the sufficiency of the evidence by filing a demurrer pursuant to Pennsylvania Rule of Criminal Procedure 1124(a)(1).[2] The trial court sustained petitioners' demurrer to charges of murder, voluntary manslaughter, and causing a catastrophe, stating: "As the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable *142 inferences which the Commonwealth's evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question." App. to Pet. for Cert. 101a-102a. The Commonwealth sought review of this ruling in the Superior Court of Pennsylvania, but a panel of that court quashed the appeal, holding it barred by the Double Jeopardy Clause. The Superior Court granted review en banc and affirmed. Citing a number of our decisions as controlling authority, the court set out two relevant principles of law. First, a judgment that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause. See, e. g., United ; ; ; United ; Second, when a trial court enters such a judgment, the Double Jeopardy Clause bars an appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into further proceedings devoted to the resolution of factual issues going to the elements of the offense charged. The Superior Court concluded that because reversal of the trial court's granting of petitioners' demurrer would necessitate further trial proceedings, the Commonwealth's appeal was improper under Martin The Commonwealth appealed to the Supreme Court of Pennsylvania, which reversed.[3] The court relied heavily on the statement in United that a trial *143 judge's ruling in a defendant's favor constitutes an acquittal "only when `the ruling of the judge, whatever its label, actually represents a resolution [in

Justice White

majority

Smalis v. Pennsylvania

https://www.courtlistener.com/opinion/111663/smalis-v-pennsylvania/

the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' " (quoting Martin ). The court gave the following explanation of why the trial court's ruling on petitioners' demurrer is not within this definition of an acquittal: "In deciding whether to grant a demurrer, the court does not determine whether or not the defendant is guilty on such evidence, but determines whether the evidence, if credited by the jury, is legally sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable doubt. "Hence, by definition, a demurrer is not a factual determination. [T]he question before the trial judge in ruling on a demurrer remains purely one of law. "We conclude, therefore, that a demurrer is not the functional equivalent of an acquittal, and that the Commonwealth has the right to appeal from an order sustaining defendant's demurrer to its case-in-chief. In such a situation, the defendant himself elects to seek dismissal on grounds unrelated to his factual guilt or innocence." Accordingly, the Pennsylvania Supreme Court remanded the case to the Superior Court for a determination on the merits of the appeal. We granted certiorari, and now reverse.[4] *144 II The Pennsylvania Supreme Court erred in holding that, for purposes of considering a plea of double jeopardy, a defendant who demurs at the close of the prosecution's case in chief "elects to seek dismissal on grounds unrelated to his factual guilt or innocence." What the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt.[5] Our past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause. See, e. g., United supra.[6] United does not overturn these precedents; indeed, it plainly indicates that the category of acquittals includes "judgment[s] by the court that the evidence is insufficient to convict." 437 U.S., at[7] *145 The Commonwealth argues that its appeal is nonetheless permissible under Justices of Boston Municipal because resumption of petitioners' bench trial following a reversal on appeal would simply constitute "continuing jeopardy." Brief for Respondent 87-88. But Lydon teaches that "[a]cquittals, unlike convictions, terminate the initial jeopardy." Thus, whether the trial is to a jury or to the bench, subjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause.[8] When a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

As Enron Corporation's financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. A jury found that this action made petitioner guilty of violating 18 U.S. C. 1512(b) (2)(A) and (B). These sections make it a crime to "knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person with intent to cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding."[1] The Court of Appeals for the Fifth Circuit affirmed. We hold that the jury instructions failed to convey properly the elements of a "corrup[t] persua[sion]" conviction under 1512(b), and therefore reverse. Enron Corporation, during the 1990's, switched its business from operation of natural gas pipelines to an energy conglomerate, a move that was accompanied by aggressive accounting practices and rapid growth. Petitioner audited Enron's publicly filed financial statements and provided internal audit and consulting services to it. Petitioner's "engagement *699 team" for Enron was headed by David Duncan. Beginning in 2000, Enron's financial performance began to suffer, and, as 2001 wore on, worsened.[2] On August 14, 2001, Jeffrey Skilling, Enron's Chief Executive Officer (CEO), unexpectedly resigned. Within days, Sherron Watkins, a senior accountant at Enron, warned Kenneth Lay, Enron's newly reappointed CEO, that Enron could "implode in a wave of accounting scandals." Brief for United 2. She likewise informed Duncan and Michael Odom, one of petitioner's partners who had supervisory responsibility over Duncan, of the looming problems. On August 28, an article in the Wall Street Journal suggested improprieties at Enron, and the SEC opened an informal investigation. By early September, petitioner had formed an Enron "crisis-response" team, which included Nancy Temple, an in-house counsel.[3] On October 8, petitioner retained outside counsel to represent it in any litigation that might arise from the Enron matter. The next day, Temple discussed Enron with other in-house counsel. Her notes from that meeting reflect that "some SEC investigation" is "highly probable." On October 10, Odom spoke at a general training meeting attended by 89 employees, including 10 from the Enron engagement *700 team. Odom urged everyone to comply with the firm's document retention policy.[4] He added: "`[I]f it's destroyed in the course of [the] normal policy and litigation is filed the next day, that's great. [W]e've followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.'" On October 12, Temple entered the Enron matter into her computer, designating the "Type of Potential Claim" as "Professional Practice — Government/Regulatory Inv[estigation]." App.

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

of Potential Claim" as "Professional Practice — Government/Regulatory Inv[estigation]." App. JA-1. Temple also e-mailed Odom, suggesting that he "`remin[d] the engagement team of our documentation and retention policy.'" Brief for United 6. On October 16, Enron announced its third quarter results. That release disclosed a $1.01 billion charge to earnings.[5] The following day, the SEC notified Enron by letter that it had opened an investigation in August and requested certain information and documents. On October 19, Enron forwarded a copy of that letter to petitioner. *701 On the same day, Temple also sent an e-mail to a member of petitioner's internal team of accounting experts and attached a copy of the document policy. On October 20, the Enron crisis-response team held a conference call, during which Temple instructed everyone to "[m]ake sure to follow the [document] policy." Brief for United 7 (brackets in original). On October 23, Enron CEO Lay declined to answer questions during a call with analysts because of "potential lawsuits, as well as the SEC inquiry." After the call, Duncan met with other Andersen partners on the Enron engagement team and told them that they should ensure team members were complying with the document policy. Another meeting for all team members followed, during which Duncan distributed the policy and told everyone to comply. These, and other smaller meetings, were followed by substantial destruction of paper and electronic documents. On October 26, one of petitioner's senior partners circulated a New York Times article discussing the SEC's response to Enron. His e-mail commented that "the problems are just beginning and we will be in the cross hairs. The marketplace is going to keep the pressure on this and is going to force the SEC to be tough." On October 30, the SEC opened a formal investigation and sent Enron a letter that requested accounting documents. Throughout this time period, the document destruction continued, despite reservations by some of petitioner's managers.[6] On November 8, Enron announced that it would *702 issue a comprehensive restatement of its earnings and assets. Also on November 8, the SEC served Enron and petitioner with subpoenas for records. On November 9, Duncan's secretary sent an e-mail that stated: "Per Dave— No more shredding. We have been officially served for our documents." Enron filed for bankruptcy less than a month later. Duncan was fired and later pleaded guilty to witness tampering. In March 2002, petitioner was indicted in the Southern District of Texas on one count of violating 1512(b)(2)(A) and (B). The indictment alleged that, between October 10 and November 9, 2001, petitioner "did knowingly, intentionally

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

October 10 and November 9, 2001, petitioner "did knowingly, intentionally and corruptly persuade other persons, to wit: [petitioner's] employees, with intent to cause" them to withhold documents from, and alter documents for use in, "official proceedings, namely: regulatory and criminal proceedings and investigations." App. JA-139. A jury trial followed. When the case went to the jury, that body deliberated for seven days and then declared that it was deadlocked. The District Court delivered an "Allen charge," and, after three more days of deliberation, the jury returned a guilty verdict. The District Court denied petitioner's motion for a judgment of acquittal. The Court of Appeals for the Fifth Circuit affirmed. It held that the jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding"; that the jury need not find any consciousness of wrongdoing; and that there was no reversible error. Because of a split of authority regarding the meaning of 1512(b), we granted certiorari.[7] *703 Chapter 73 of Title 18 of the United Code provides criminal sanctions for those who obstruct justice. Sections 1512(b)(2)(A) and (B), part of the witness tampering provisions, provide in relevant part: "Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to cause or induce any person to withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding shall be fined under this title or imprisoned not more than ten years, or both." In this case, our attention is focused on what it means to "knowingly corruptly persuad[e]" another person "with intent to cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding." "We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, and out of concern that `a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,'" United Such restraint is particularly appropriate here, where the act underlying the conviction—"persua[sion]"—is by itself innocuous. Indeed, "persuad[ing]" a person "with intent to cause" that person to "withhold" testimony or documents from a Government proceeding or Government official *704 is not inherently malign.[8] Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination,

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

her son that he invoke his right against compelled self-incrimination, see U. S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences, see Nor is it necessarily corrupt for an attorney to "persuad[e]" a client "with intent to cause" that client to "withhold" documents from the Government. In Upjohn for example, we held that Upjohn was justified in withholding documents that were covered by the attorney-client privilege from the Internal Revenue Service (IRS). See 95. No one would suggest that an attorney who "persuade[d]" Upjohn to take that step acted wrongfully, even though he surely intended that his client keep those documents out of the IRS' hands. "Document retention policies," which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. See generally Chase, To Shred or Not to Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 Ford. J. Corp. & Fin. L. 721 (2003). It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances. Acknowledging this point, the parties have largely focused their attention on the word "corruptly" as the key to what may or may not lawfully be done in the situation presented here. Section 1512(b) punishes not just "corruptly persuad[ing]" another, but "knowingly corruptly persuad[ing]" another. (Emphasis added.) The Government suggests that "knowingly" does not modify "corruptly persuades," *705 but that is not how the statute most naturally reads. It provides the mens rea — "knowingly" — and then a list of acts — "uses intimidation or physical force, threatens, or corruptly persuades." We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain. See United (recognizing that the "most natural grammatical reading" of 18 U.S. C. 2252(a)(1) and (2) "suggests that the term `knowingly' modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces"); see also The Government suggests that it is "questionable whether Congress would employ such an inelegant formulation as `knowingly corruptly persuades.'" Brief for United 35, n. 18. Long experience has not taught us to share the Government's doubts on this score, and we must simply interpret the statute as written. The parties have not pointed us to another interpretation of "knowingly corruptly" to guide us here.[9] In any event, the natural meaning of these terms provides a clear answer. See "[K]nowledge" and "knowingly" are normally associated

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

a clear answer. See "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness. See Black's Law Dictionary 888 (hereinafter Black's); Webster's Third New International Dictionary 1252-1253 (1993) (hereinafter Webster's 3d); American Heritage Dictionary of the English Language 725 (hereinafter Am. Hert.). "Corrupt" and "corruptly" are normally associated with wrongful, immoral, depraved, or evil. See Black's 371; Webster's 3d 512; Am. Hert. 299-300. Joining these meanings together here makes sense both linguistically *706 and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows 1512(b) to reach only those with the level of "culpability we usually require in order to impose criminal liability." United ; see also The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, "even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty." App. JA-213. The instructions also diluted the meaning of "corruptly" so that it covered innocent conduct. at JA-212. The parties vigorously disputed how the jury would be instructed on "corruptly." The District Court based its instruction on the definition of that term found in the Fifth Circuit Pattern Jury Instruction for This pattern instruction defined "corruptly" as "`knowingly and dishonestly, with the specific intent to subvert or undermine the integrity'" of a proceeding. Brief for Petitioner 3, n. 3 (emphasis deleted). The Government, however, insisted on excluding "dishonestly" and adding the term "impede" to the phrase "subvert or undermine." The District Court agreed over petitioner's objections, and the jury was told to convict if it found petitioner intended to "subvert, undermine, or impede" governmental factfinding by suggesting to its employees that they enforce the document retention policy. App. JA-212. These changes were significant. No longer was any type of "dishonest[y]" necessary to a finding of guilt, and it was enough for petitioner to have simply "impede[d]" the Government's factfinding ability. As the Government conceded *707 at oral argument, "`[i]mpede'" has broader connotations than "`subvert'" or even "`[u]ndermine,'" see Tr. of Oral Arg. 38, and many of these connotations do not incorporate any "corrupt[ness]" at all. The dictionary defines "impede" as "to interfere with or get in the way of the progress of" or "hold up" or "detract from." Webster's 3d 1132. By definition, anyone who innocently persuades another to withhold information from the Government "get[s]

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

innocently persuades another to withhold information from the Government "get[s] in the way of the progress of" the Government. With regard to such innocent conduct, the "corruptly" instructions did no limiting work whatsoever. The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding.[10] In resisting any type of nexus element, the Government relies heavily on 1512(e)(1), which states that an official proceeding "need not be pending or about to be instituted at the time of the offense." It is, however, one thing to say that a proceeding "need not be pending or about to be instituted at the time of the offense," and *708 quite another to say a proceeding need not even be foreseen. A "knowingly corrup[t] persaude[r]" cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. We faced a similar situation in Respondent lied to a Federal Bureau of Investigation agent in the course of an investigation and was convicted of "`corruptly endeavor[ing] to influence, obstruct, and impede [a] grand jury investigation'" under All the Government had shown was that had uttered false statements to an investigating agent "who might or might not testify before a grand jury." at We held that 1503 required something more — specifically, a "nexus" between the obstructive act and the proceeding. -. "[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding," we explained, "he lacks the requisite intent to obstruct." For these reasons, the jury instructions here were flawed in important respects. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Scalia

dissenting

Stewart Organization, Inc. v. Ricoh Corp.

https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/

I agree with the opinion of the Court that the initial question before us is whether the validity between the parties of a contractual forum-selection clause falls within the scope of 28 U.S. C. 1404(a). See ante, at 26-27, 29. I cannot agree, however, that the answer to that question is yes. Nor do I believe that the federal courts can, consistent with the twin-aims test of R. fashion a judge-made rule to govern this issue of contract validity. *34 I When a litigant asserts that state law conflicts with a federal procedural statute or formal Rule of Procedure, a court's first task is to determine whether the disputed point in question in fact falls within the scope of the federal statute or Rule. In this case, the Court must determine whether the scope of 1404(a) is sufficiently broad to cause a direct collision with state law or implicitly to control the issue before the Court, i. e., validity between the parties of the forum-selection clause, thereby leaving no room for the operation of state law. See Burlington Northern R. I conclude that it is not. Although the language of 1404(a) provides no clear answer, in my view it does provide direction. The provision vests the district courts with authority to transfer a civil action to another district "[f]or the convenience of parties and witnesses, in the interest of justice." This language looks to the present and the future. As the specific reference to convenience of parties and witnesses suggests, it requires consideration of what is likely to be just in the future, when the case is tried, in light of things as they now stand. Accordingly, the courts in applying 1404(a) have examined a variety of factors, each of which pertains to facts that currently exist or will exist: e. g., the forum actually chosen by the plaintiff, the current convenience of the parties and witnesses, the current location of pertinent books and records, similar litigation pending elsewhere, current docket conditions, and familiarity of the potential courts with governing state law. See C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3848-3849, 3851, 3853-3854 (2d ed. 1986). In holding that the validity between the parties of a forum-selection clause falls within the scope of 1404(a), the Court inevitably imports, in my view without adequate textual foundation, a new retrospective element into the court's deliberations, requiring examination of what the *35 facts were concerning, among other things, the bargaining power of the parties and the presence or absence of overreaching at the time the contract was made. See

Justice Scalia

dissenting

Stewart Organization, Inc. v. Ricoh Corp.

https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/

of overreaching at the time the contract was made. See ante, at 28, and n. 7, 29. The Court largely attempts to avoid acknowledging the novel scope it gives to 1404(a) by casting the issue as how much weight a district court should give a forum-selection clause as against other factors when it makes its determination under 1404(a). I agree that if the weight-among-factors issue were before us, it would be governed by 1404 (a). That is because, while the parties may decide who between them should bear any inconvenience, only a court can decide how much weight should be given under 1404(a) to the factor of the parties' convenience as against other relevant factors such as the convenience of witnesses. But the Court's description of the issue begs the question: what law governs whether the forum-selection clause is a valid or invalid allocation of any inconvenience between the parties. If it is invalid, i. e., should be voided, between the parties, it cannot be entitled to any weight in the 1404(a) determination. Since under Alabama law the forum-selection clause should be voided, see Redwing Carriers, in this case the question of what weight should be given the forum-selection clause can be reached only if as a preliminary matter federal law controls the issue of the validity of the clause between the parties.[*] *36 Second, 1404(a) was enacted against the background that issues of contract, including a contract's validity, are nearly always governed by state law. It is simply contrary to the practice of our system that such an issue should be wrenched from state control in absence of a clear conflict with federal law or explicit statutory provision. It is particularly instructive in this regard to compare 1404(a) with another provision, enacted by the same Congress a year earlier, that did pre-empt state contract law, and in precisely the same field of agreement regarding forum selection. Section 2 of the Federal Arbitration Act, 9 U.S. C. 2, provides: "A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." We have said that an arbitration clause is a "kind of forum-selection clause," and the contrast between this explicit pre-emption *37

Justice Scalia

dissenting

Stewart Organization, Inc. v. Ricoh Corp.

https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/

forum-selection clause," and the contrast between this explicit pre-emption *37 of state contract law on the subject and 1404(a) could not be more stark. Section 1404(a) is simply a venue provision that nowhere mentions contracts or agreements, much less that the validity of certain contracts or agreements will be matters of federal law. It is difficult to believe that state contract law was meant to be pre-empted by this provision that we have said "should be regarded as a federal judicial housekeeping measure," Van that we have said did not change "the relevant factors" which federal courts used to consider under the doctrine of forum non conveniens, and that we have held can be applied retroactively because it is procedural, Ex parte Collett, It seems to me the generality of its language — "[f]or the convenience of parties and witnesses, in the interest of justice" — is plainly insufficient to work the great change in law asserted here. Third, it has been common ground in this Court since -77, that when a federal procedural statute or Rule of Procedure is not on point, substantial uniformity of predictable outcome between federal and state courts in adjudicating claims should be striven for. See also Klaxon This rests upon a perception of the constitutional and congressional plan underlying the creation of diversity and pendent jurisdiction in the lower federal courts, which should quite obviously be carried forward into our interpretation of ambiguous statutes relating to the exercise of that jurisdiction. We should assume, in other words, when it is fair to do so, that Congress is just as concerned as we have been to avoid significant differences between state and federal courts in adjudicating claims. Cf. Southland Thus, in deciding whether a federal procedural statute or Rule of Procedure encompasses a particular *38 issue, a broad reading that would create significant disuniformity between state and federal courts should be avoided if the text permits. See, e. g., ; ; ; cf. P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 828 (3d ed. 1988) ("The Supreme Court has continued since to interpret the federal rules to avoid conflict with important state regulatory policies"). As I have shown, the interpretation given 1404(a) by the Court today is neither the plain nor the more natural meaning; at best, 1404(a) is ambiguous. I would therefore construe it to avoid the significant encouragement to forum shopping that will inevitably be provided by the interpretation the Court adopts today. II Since no federal statute or Rule of Procedure

Justice Scalia

dissenting

Stewart Organization, Inc. v. Ricoh Corp.

https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/

today. II Since no federal statute or Rule of Procedure governs the validity of a forum-selection clause, the remaining issue is whether federal courts may fashion a judge-made rule to govern the question. If they may not, the Rules of Decision Act, 28 U.S. C. 1652, mandates use of state law. See ; 4-472 ; 462 U.S. 1, (Rules of Decision Act "simply requires application of state law unless federal law applies"); see also at 9, n. 13. In general, while interpreting and applying substantive law is the essence of the "judicial Power" created under Article III of the Constitution, that power does not encompass the making of substantive law. Cf. Whatever the scope of the federal courts' authority to create federal common law in other areas, it is plain that the mere *39 fact that petitioner company here brought an antitrust claim, ante, at 24, does not empower the federal courts to make common law on the question of the validity of the forum-selection clause. See 5 U.S. 610, ; (same); cf. Texas Industries, The federal courts do have authority, however, to make procedural rules that govern the practice before them. See 28 U.S. C. 20 (federal courts may make rules "for the conduct of their business"); Fed. Rule Civ. Proc. 83 (districts courts have authority to "regulate their practice"); see generally In deciding what is substantive and what is procedural for these purposes, we have adhered to a functional test based on the "twin aims of the rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." ; see also ante, at 27, n. 6; Moreover, although in reviewing the validity of a federal procedural statute or Rule of Procedure we inquire only whether Congress or the rulemakers have trespassed beyond the wide latitude given them to determine that a matter is procedural, see Burlington Northern R. ; at 4-474, in reviewing the lower courts' application of the twin-aims test we apply our own judgment as a matter of law. Under the twin-aims test, I believe state law controls the question of the validity of a forum-selection clause between the parties. The Eleventh Circuit's rule clearly encourages forum shopping. Venue is often a vitally important matter, as is shown by the frequency with which parties contractually provide for and litigate the issue. Suit might well not be pursued, or might not be as successful, in a significantly less *40 convenient forum. Transfer to such a less desirable forum is, therefore, of sufficient import that plaintiffs will base their decisions on the likelihood of that eventuality when

Justice Scalia

dissenting

Stewart Organization, Inc. v. Ricoh Corp.

https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/

base their decisions on the likelihood of that eventuality when they are choosing whether to sue in state or federal court. With respect to forum-selection clauses, in a State with law unfavorable to validity, plaintiffs who seek to avoid the effect of a clause will be encouraged to sue in state court, and non-resident defendants will be encouraged to shop for more favorable law by removing to federal court. In the reverse situation — where a State has law favorable to enforcing such clauses — plaintiffs will be encouraged to sue in federal court. This significant encouragement to forum shopping is alone sufficient to warrant application of state law. Cf. I believe creating a judge-made rule fails the second part of the twin-aims test as well, producing inequitable administration of the laws. The best explanation of what constitutes inequitable administration of the laws is that found in itself: allowing an unfair discrimination between noncitizens and citizens of the forum -75; see also 380 U. S., n. 9. Whether discrimination is unfair in this context largely turns on how important is the matter in question. See and n. 9. The decision of an important legal issue should not turn on the accident of diversity of citizenship, see, e. g., or the presence of a federal question unrelated to that issue. It is difficult to imagine an issue of more importance, other than one that goes to the very merits of the lawsuit, than the validity of a contractual forum-selection provision. Certainly, the doctrine has previously been held to require the application of state law on subjects of similar or obviously lesser importance. See, e. g., ; Bernhardt v. Polygraphic Co. of America, 350 U. S. *41 198, 202-204 (1956) (arbitrability); - Nor can or should courts ignore that issues of contract validity are traditionally matters governed by state law. For the reasons stated, I respectfully dissent.

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

This is the attorney's fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, to resolve two questions relating to fees litigation under as amended, 42 U.S. C. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work? *6 I This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 7 1/2 months during and the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See cert. denied, ; cert. granted, The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C.[1] Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding *7 figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22-A43. In calculating the hourly rate for Benson's fees the court noted that the market rate in Kansas City for attorneys of Benson's qualifications was in the range of $125 to $ per hour, and found that "Mr. Benson's rate would fall at the higher end of this range

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

rate would fall at the higher end of this range based upon his expertise in the area of civil rights." at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson's services. at A26-A. The court also took account of the delay in payment in setting the rates for several of Benson's associates by using current market rates rather than those applicable at the time the services were rendered. at A28-A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. at A33. Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. at A29-A31, A34. The Court of Appeals affirmed in all respects. * II Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney's fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, and Library of[2] In the lower courts had awarded attorney's fees against the State of Arkansas, in part pursuant to in connection with litigation over the conditions of confinement in that State's prisons. The State contended that any such award was subject to the Eleventh Amendment's constraints on actions for payable from a State's treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between "retroactive monetary relief" and "prospective injunctive relief." See ; Ex parte Young, Attorney's fees, we held, belonged to the latter category, because they constituted reimbursement of "expenses incurred in litigation seeking only prospective relief," rather than "retroactive liability for prelitigation conduct." ; see also We explained: "Unlike ordinary `retroactive' relief such as or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief." Section we noted, fit easily into the *9 longstanding practice of awarding "costs" against States, for the statute imposed the award of attorney's fees "as part of the costs." citing Fairmont Creamery After therefore, it must be accepted as settled that an award of attorney's fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a "reasonable attorney's fee" is to be calculated. See Missouri contends, however, that the principle enunciated in has been undermined by subsequent decisions of this Court that require Congress to "express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State ; See also Dellmuth v. Muth, ante, p. 223; Pennsylvania v. Union Gas Co., ante, p. 1. The flaw in this argument lies in its misreading of the holding of It is true that in we noted that Congress could, in the exercise of its enforcement power under 5 of the Fourteenth Amendment, set aside the States' immunity from retroactive citing and that Congress intended to do so in enacting -694. But we also made clear that the application of to the States did not depend on congressional abrogation of the States' immunity. We did so in rejecting precisely the "clear statement" argument that Missouri now suggests has undermined Arkansas had argued that did not plainly abrogate the States' immunity; citing and the State contended that "retroactive liability" could not be imposed on the States "in the absence of an extraordinarily explicit *280 statutory mandate." We responded as follows: "[T]hese cases [Employees and Edelman] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney's fees `as part of the costs.' Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity." The holding of therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting but rather that the Eleventh Amendment did not apply to an award of attorney's fees ancillary to a grant of prospective relief. See That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today. Missouri's other line of argument is based on our decision

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

Missouri's other line of argument is based on our decision in Library of involved an application of the longstanding "no-interest rule," under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States' immunity from suit and from costs including reasonable attorney's fees, it had not waived the Federal Government's traditional immunity from any award of We thus held impermissible a 30 percent increase in the "lodestar" fee to compensate for delay in payment. Because we refused to find in the language of Title VII a waiver of the United States' immunity from interest, Missouri argues, we should likewise conclude that is not sufficiently explicit to constitute an abrogation of the States' immunity under the Eleventh Amendment in regard to any award of *281 The answer to this contention is already clear from what we have said about Since, as we held in the Eleventh Amendment does not bar an award of attorney's fees ancillary to a grant of prospective relief, our holding in has no application, even by analogy.[3] There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a "clear statement" requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Rather, the issue here — whether the "reasonable attorney's fee" provided for in should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment — is a straightforward *282 matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended — not whether it manifested "the clear affirmative intent. to waive the sovereign's immunity."[4] This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a "reasonable attorney's fee." In we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay: "First is the matter of delay. When plaintiffs' entitlement to attorney's fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later Meanwhile,

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

favorable decision finally eventuates, which may be years later Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra ; Louisville Black Police Officers Organization, Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue We do not suggest that adjustments for delay are *283 inconsistent with the typical fee-shifting statute." The same conclusion is appropriate under[5] Our cases have repeatedly stressed that attorney's fees awarded under this statute are to be based on market rates for the services rendered. See, e. g., ; ; Clearly, compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings.[6] We agree, therefore, *284 that an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise — is within the contemplation of the statute. To summarize: We reaffirm our holding in that the Eleventh Amendment has no application to an award of attorney's fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney's fee under An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment. III Missouri's second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively "paralegals") at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15 — which it argued below corresponded to their salaries, benefits, and overhead — would be appropriate, rather than the market rates of $35 to $50. According to Missouri, does not authorize billing paralegals' hours at market rates, and doing so produces a "windfall" for the attorney.[7] *285 We begin with the statutory language, which provides simply

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

*285 We begin with the statutory language, which provides simply for "a reasonable attorney's fee as part of the costs." 42 U.S. C. Clearly, a "reasonable attorney's fee" cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the "reasonable attorney's fee" provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney's fee. The statute specifies a "reasonable" fee for the attorney's work product. In determining how other elements of the attorney's fee are to be calculated, we have consistently looked to the marketplace as our guide to what is "reasonable." In for example, we rejected an argument that attorney's fees for nonprofit legal *286 service organizations should be based on cost. We said: "The statute and legislative history establish that `reasonable fees' under are to be calculated according to the prevailing market rates in the relevant community" See also, e. g., Delaware (controlling question concerning contingency enhancements is "how the market in a community compensates for contingency"); (reasonableness of fee must be determined "in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a `reasonable' attorney's fee under means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys"). A reasonable attorney's fee under is one calculated on the basis of rates and practices prevailing in the relevant market, i. e., "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation," and one that grants the successful civil rights plaintiff a "fully compensatory fee," comparable to what "is traditional with attorneys compensated by a fee-paying client." S. Rep. No. 94-1011, p. 6 If an attorney's fee awarded under is to yield the same level of compensation that would be available from the market, the "increasingly widespread

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

that would be available from the market, the "increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks," must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at "market rates." In other words, the prevailing "market rate" for attorney time is not independent of the manner in which paralegal *287 time is accounted for.[8] Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at "cost." Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom. We reject the argument that compensation for paralegals at rates above "cost" would yield a "windfall" for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm's partners or is otherwise improper under merely because it exceeds the cost of the attorney's services. If the fees are consistent with market rates and practices, the "windfall" argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress' intent to provide a "fully compensatory fee" if the prevailing plaintiff's attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699.[9] *288 Nothing in requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that requires. Where, however, the prevailing practice is to bill paralegal work at market

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers' fee requests in the same way is not only permitted by but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours "encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes." Cameo Convalescent Center, cert. denied,[10] *289 Such separate billing appears to be the practice in most communities today.[11] In the present case, Missouri concedes that "the local market typically bills separately for paralegal services," Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court's decision to award separate compensation at these rates was fully in accord with IV The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore Affirmed. JUSTICE MARSHALL took no part in the consideration or decision of this case. JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, and with whom THE CHIEF JUSTICE joins in part, concurring in part and dissenting in part. I agree with the Court that 42 U.S. C. allows compensation for the work of paralegals and law clerks at market rates, and therefore join Parts I and III of its opinion. I do not join Part II, however, for in my view the Eleventh Amendment does not permit enhancement of attorney's *290 fees assessed against a State as compensation for delay in payment. The Eleventh Amendment does not, of course, provide a State with across-the-board immunity from all monetary relief. Relief that "serves directly to bring an end to a violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect" on a State's treasury. Thus, in the Court unanimously upheld a decision ordering a State to pay over $5 million to eliminate the effects of de jure segregation in certain school systems. On the other hand, "[r]elief that in essence serves to compensate a party injured in the past," such as relief "expressly denominated as" or "relief [that] is tantamount to an award of for a past violation of federal law, even though styled

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

for a past violation of federal law, even though styled as something else," is prohibited by the Eleventh Amendment. at The crucial question in this case is whether that portion of respondents' attorney's fees based on current hourly rates is properly characterized as retroactive monetary relief. In Library of the Court addressed whether the attorney's fees provision of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e-5(k), permits an award of attorney's fees against the United States to be enhanced in order to compensate for delay in payment. In relevant part, 2000e-5(k) provides: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity Commission (EEOC)] or the United States, a reasonable attorney's fees as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person." The Court began its analysis in by holding that "interest is an element of separate from on the *291 substantive claim." (citing C. McCormick, Law of Damages 50, p. 205 (1935)). Given the "no-interest" rule of federal sovereign immunity, under which the United States is not liable for interest absent an express statutory waiver to the contrary, the Court was unwilling to conclude that, by equating the United States' liability to that of private persons in 2000e-5(k), Congress had waived the United States' immunity from -319. The fact that 2000e-5(k) used the word "reasonable" to modify "attorney's fees" did not alter this result, for the Court explained that it had "consistently refused to impute an intent to waive immunity from interest into the ambiguous use of a particular word or phrase in a statute." The description of attorney's fees as costs in 2000e-5(k) also did not mandate a contrary conclusion because "[p]rejudgment interest is considered as not a component of `costs,' " and the "term `costs' has never been understood to include any interest component." ; 2 A. Sedgwick & G. Van Nest, Sedgwick on Damages 157-158 (7th ed. 1880)). Finally, the Court rejected the argument that the enhancement was proper because the "no-interest" rule did not prohibit compensation for delay in payment: "Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money." As the Court notes, ante, at 281, n. 3, the "no-interest" rule of federal sovereign immunity at issue in provided an "added gloss of strictness," and may have explained the result reached by the Court in that case, i. e., that 2000e-5(k) did

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

the Court in that case, i. e., that 2000e-5(k) did not waive the United States' immunity against awards of But there is not so much as a hint anywhere in that the Court's discussions and definitions of interest and compensation for delay were dictated by, or limited to, the federal "no-interest" rule. As the *292 quotations above illustrate, the Court's opinion in is filled with broad, unqualified language. The dissenters in did not disagree with the Court's sweeping characterization of interest and compensation for delay as Rather, they argued only that 2000e-5(k) had waived the immunity of the United States with respect to awards of See I therefore emphatically disagree with the Court's statement that " does not represent a general-purpose definition of compensation for delay that governs here." Ante, at 281, n. 3. Two general propositions that are relevant here emerge from First, interest is considered and not costs. Second, compensation for delay, which serves the same function as interest, is also the equivalent of These two propositions make clear that enhancement for delay constitutes retroactive monetary relief barred by the Eleventh Amendment. Given my reading of I do not think the Court's reliance on the cost rationale of set forth in is persuasive. Because teaches that compensation for delay constitutes and cannot be considered costs, see 478 U.S., -322, is not controlling. See Furthermore, does not mean that inclusion of attorney's fees as costs in a statute forecloses a challenge to the enhancement of fees as compensation for delay in payment. If it did, then would have been resolved differently, for 2000e-5(k) lists attorney's fees as costs. Even if I accepted the narrow interpretation of proffered by the Court, I would disagree with the result reached by the Court in Part II of its opinion. On its own terms, the Court's analysis fails. The Court suggests that the definitions of interest and compensation for delay set forth in *293 would be triggered only by a rule of sovereign immunity barring awards of interest against the States: "Outside the context of the `no-interest rule' of federal immunity, we see no reason why compensation for delay cannot be included within attorney's fee awards." Ante, at 281, n. 3. But the Court does not inquire about whether such a rule exists. In fact, there is a federal rule barring awards of interest against States. See ; United ("general principle" is that "an obligation of the State to pay interest, whether as interest or as on any debt overdue, cannot arise except by the consent and contract of the State, manifested by

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

by the consent and contract of the State, manifested by statute, or in a form authorized by statute") The Court has recently held that the rule of immunity set forth in Virginia and North Carolina is inapplicable in situations where the State does not retain any immunity, see West but the rule has not otherwise been limited, and there is no reason why it should not be relevant in the Eleventh Amendment context presented in this case. As Virginia and North Carolina indicate, a State can waive its immunity against awards of See also The Missouri courts have interpreted Mo. Rev. Stat. 408.020 providing for prejudgment interest on money that becomes due and payable, and 408.040, providing for prejudgment interest on court judgments and orders, as making the State liable for See Denton Construction ( 408.020); ( 408.040). There can be no argument, however, that these Missouri statutes and cases allow interest to be awarded against the State here. A "State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts." Pennhurst State School and The fact that a State has immunity from awards of interest is not the end of the matter. In a case such as this one involving school desegregation, interest or compensation for delay (in the guise of current hourly rates) can theoretically be awarded against a State despite the Eleventh Amendment's bar against retroactive monetary liability. The Court has held that Congress can set aside the States' Eleventh Amendment immunity in order to enforce the provisions of the Fourteenth Amendment. See City of ; Congress must, however, be unequivocal in expressing its intent to abrogate that immunity. See generally Atascadero State In the Court was able to avoid deciding whether met the "clear statement" rule only because attorney's fees (without any enhancement) are not considered retroactive in nature. See -697. The Court cannot do the same here, where the attorney's fees were enhanced to compensate for delay in payment. Cf. In relevant part, provides: "In any action or proceeding to enforce a provision of sections 1981, 1982, and of this title, *295 title IX of or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In my view, does not meet the "clear statement" rule set forth in Atascadero. It does not mention interest, compensation for delay, or current hourly rates. As one federal court has correctly noted, "Congress has

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

rates. As one federal court has correctly noted, "Congress has not yet made any statement suggesting that a attorney's fee award should include prejudgment " A comparison of the statute at issue in also indicates that as currently written, is insufficient to allow attorney's fees assessed against a State to be enhanced to compensate for delay in payment. The language of is undoubtedly less expansive than that of 2000e-5(k), for does not equate the liability of States with that of private persons. Since 2000e-5(k) does not allow enhancement of an award of attorney's fees to compensate for delay, it is logical to conclude that a more narrowly worded statute, likewise does not allow interest (through the use of current hourly rates) to be tacked on to an award of attorney's fees against a State. Compensation for delay in payment was one of the reasons the District Court used current hourly rates in calculating respondents' attorney's fees. See App. to Pet. for Cert. A26-A; I would reverse the award of attorney's fees to respondents and remand so that the fees can be calculated without taking compensation for delay into account.

Justice Douglas

dissenting

USCSC v. National Association of Letter Carriers

https://www.courtlistener.com/opinion/108857/uscsc-v-national-association-of-letter-carriers/

The Hatch Act by 9 prohibits federal employees from taking "an active part in political management or in political campaigns." Some of the employees, whose union is speaking for them, want "to run in state and local elections for the school board, for city council, for mayor"; "to write letters on political subjects to newspapers"; "to be a delegate in a political convention"; "to run for an office and hold office in a political party or political club"; "to campaign for candidates for political office"; "to work at polling places in behalf of a political party." There is no definition of what "an active part in political campaigns" means. The Act incorporates over 3,000 rulings of the Civil Service Commission between *596 1886 and 1940 and many hundreds of rulings since 1940. But even with that gloss on the Act, the critical phrases lack precision. In 1971 the Commission published a three-volume work entitled Political Activities Reporter which contains over 800 of its decisions since the enactment of the Hatch Act. One can learn from studying those volumes that it is not "political activity" to march in a band during a political parade or to wear political badges or to "participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency." 5 CFR 733.111 (13). That is to say, some things, like marching in a band, are clear. Others are pregnant with ambiguity as "participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise," etc. Permission to "[t]ake an active part in a nonpartisan election," 5 CFR 733.111 (10), also raises large questions of uncertainty because one may be partisan for a person, an issue, a candidate without feeling an identification with one political party or the other. The District Court felt that the prohibitions in the Act are "worded in generalities that lack precision," with the result that it is hazardous for an employee "if he ventures to speak on a political matter since he will not know when his words or acts relating to political subjects will offend." at -583. The chilling effect of these vague and generalized prohibitions is so obvious as not to need elaboration. That effect would not be material to the issue of constitutionality if only the normal contours of the police power were involved. On the run of social and economic matters the "rational basis" standard which United Public * applied would

Justice Douglas

dissenting

USCSC v. National Association of Letter Carriers

https://www.courtlistener.com/opinion/108857/uscsc-v-national-association-of-letter-carriers/

the "rational basis" standard which United Public * applied would suffice.[1] But what may have been unclear to some in Mitchell should by now be abundantly clear to all. We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby—unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employee's job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a "privilege," then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized "on a basis that infringes [the employee's] constitutionally protected interests—especially, his interest in freedom of speech." See If Government, as the majority stated in Mitchell, may not condition public employment on the basis that the employee will not "take any active part in missionary work," it is difficult to see why it may condition employment on the basis that the employee not take "an active part in political campaigns." *598 For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause. Free discussion of governmental affairs is basic in our constitutional system. ; ; Monitor Patriot Laws that trench on that area must be narrowly and precisely drawn to deal with precise ends. Overbreadth in the area of the First Amendment has a peculiar evil, the evil of creating chilling effects which deter the exercise of those freedoms. As we stated in in speaking of First Amendment freedoms and the unconstitutionality of overbroad statutes: "These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." Mitchell is of a different vintage from the present case. Since its date, a host of decisions have illustrated the need for narrowly drawn statutes that touch First Amendment rights. A teacher was held to be unconstitutionally discharged for sending

Justice Douglas

dissenting

USCSC v. National Association of Letter Carriers

https://www.courtlistener.com/opinion/108857/uscsc-v-national-association-of-letter-carriers/

A teacher was held to be unconstitutionally discharged for sending a letter to a newspaper that criticized the school authorities. "In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public." We followed the same course in when we relieved a sheriff from a contempt conviction for making a public statement in connection with a current political controversy. As in the present case, the sheriff spoke as a *599 private citizen and what he said did not interfere with his duties as sheriff. The present Act cannot be appropriately narrowed to meet the need for narrowly drawn language not embracing First Amendment speech or writing without substantial revision. That rewriting cannot be done by the Commission because Congress refused to delegate to it authority to regulate First Amendment rights. The proposal to do so aroused a great debate in Congress[2] and Senator Hatch finally submitted a substitute, saying "[i]t does away with the question of the delegation of power."[3] The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, 5 CFR 733.122 starting with the catch-all "include but are not limited to." So the Commission ends up with open-end discretion to penalize X or not to penalize him. For example, a "permissible" activity is the employee's right to "[e]xpress his opinion as an individual privately and publicly on political subjects and candidates." 5 CFR 733.111 (2). Yet "soliciting votes" is prohibited. 5 CFR 733.122 (7). Is an employee safe from punishment if he expresses his opinion that candidate X is the best *600 and candidate Y the worst? Is that crossing the forbidden line of soliciting votes? A nursing assistant at a veterans' hospital put an ad in a newspaper reading: "To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand. "This person is my dad, Lester (Less) Massingham. "THANK YOU "WALLACE (WALLY) MASSINGHAM" He was held to have violated the Act. Massingham, 1 Political Activity Reporter 792, 793 (1959). Is a letter a permissible "expression" of views or a prohibited "solicitation?" The Solicitor General says it is a "permissible" expression; but the Commission ruled otherwise. For an employee who does not have the

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

In the Court held that 301 (a) of the Labor Management Relations Act, 1947, 29 U.S. C. 185 (a), does not authorize a damages action against individual union officers and members when their union is liable for violating a nostrike clause in a collective-bargaining agreement. We expressly reserved the question whether an employer might maintain a suit for damages against "individual defendants acting not in behalf of the union but in their personal and nonunion capacity" where their "unauthorized, individual action" violated the no-strike provision of the collective-bargaining agreement. n. 7. We granted certiorari to decide this important question of federal labor law. I Petitioners are three companies engaged in the transportation by truck of motor vehicles. All three are parties to a collective-bargaining agreement with the Teamsters Union that covers operations at their respective facilities in Flint, *403 Mich. Respondents are employees of petitioners and members of Teamsters Local Union No. 332. The collective-bargaining agreement contains a no-strike clause[1] and subjects all disputes to a binding grievance and arbitration procedure. On June 8, 1976, respondents commenced a wildcat strike, because they believed that "the union was not properly representing them in negotiations for amendments to the collective bargaining agreement." Soon thereafter, petitioners brought this 301 (a) action in the United States District Court for the Eastern District of Michigan, seeking injunctive relief and "damages against the [employees], in their individual capacity, for all losses arising out of the unlawful work stoppage and for attorneys fees." App. 21. Petitioners alleged that the strike was neither authorized nor approved by the union and, therefore, sought no damages from the union. See ; App. 18, 20-21. After a hearing, the District Court found that "the issue which had caused the work stoppage was not arbitrable" because it was "an internal dispute between factions in the Local," App. to Pet. for Cert. 15a-16a, and accordingly denied preliminary injunctive relief, citing Boys Markets,[2]*404 Following additional hearings and settlement of the "internal dispute," the District Court concluded that "the work stoppage continued only because of a dispute between the Local and [petitioners] over amnesty for the strikers [and that] this issue was arbitrable." App. to Pet. for Cert. 16a. The court, therefore, issued a preliminary injunction, enjoining continuation of the strike. Respondents obeyed the order and returned to work on June 21, 1976. Nine months later, respondents moved to dissolve the preliminary injunction and to dismiss the complaint for damages. Relying on this Court's intervening decision in Buffalo Forge[3] the District Court dissolved the injunction on the ground that the work stoppage was not precipitated

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

on the ground that the work stoppage was not precipitated by an arbitrable issue. App. to Pet. for Cert. 18a. The court also dismissed petitioners' claim for damages, holding that "an employer may not sue his employees for monetary relief for breach of the collective bargaining agreement whether or not the union may also be liable." at 16a. The United States Court of Appeals for the Sixth Circuit reversed the District Court's dissolution of the injunction, holding that an injunction may be granted even where the issue which precipitated the strike was nonarbitrable provided an arbitrable issue, other than the simple legality of the strike itself, caused the continuation of the strike with *405 the purpose of "compel[ling] the employer to concede on the arbitrable issue." Petitioners do not seek review of this part of the Court of Appeals' ruling.[4] The Court of Appeals affirmed the District Court's dismissal of petitioners' claim for damages from the individual union members. Relying principally on the legislative history of 301, the Court of Appeals concluded that Congress had not intended through 301 to "create a cause of action for damages against individual union members for breach of a no-strike agreement." We agree. II Since Textile it has been settled that 301 (a)[5] does more than confer jurisdiction on federal courts to decide lawsuits alleging violations of collective-bargaining agreements. Section 301 (a) also "authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements." Textile 353 U. S., at *406 451. Lincoln defined the mode of analysis for fashioning this body of federal law as follows: "The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem." Of course, "Lincoln did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule, irrespective of congressional pronouncements." Howard Johnson Rather, it is clear that in fashioning federal law under 301 (a) substantial deference should be paid to revealed congressional intention. See -249. In Atkinson, the Court relied on the intent of Congress in passing 301 (b) to hold that individual union members may not be sued for damages where the union has breached the no-strike provision

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

for damages where the union has breached the no-strike provision of its collective-bargaining agreement. Section 301 (b) states in pertinent part that "[a]ny money judgment against a labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." Thus, in Atkinson, we noted that "in discharging the duty Congress imposed on us to formulate the federal law to govern 301 (a) suits, we are strongly guided by and do not give a niggardly reading to 301 (b)." Accordingly, we consulted and relied on the legislative history of 301 (b) which made it "clear that th[e] third clause [of 301 (b)] was a deeply felt congressional reaction against the Danbury Hatters case and an expression *407 of legislative determination that the aftermath of that decision was not to be permitted to recur."[6] Similarly, in deciding the question presented in this case, we "discharg[e] the duty Congress imposed on us to formulate the federal law to govern 301 (a) suits." -249, by looking to the "penumbra" of 301 (b), 353 U.S., as informed by its legislative history. See Howard Johnson at Section 301 (b) by its terms prohibits a money judgment entered against a union from being enforced against individual union members. See It is a mistake to suppose that Congress thereby suggested by negative implication that employees should be held liable where their union is not liable for the strike. See Sinclair Oil Although lengthy and complex, the legislative history of 301 clearly reveals Congress' intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a collective-bargaining agreement, whether or not the union participated in or authorized the illegality. Indeed. Congress intended this result even though it might leave the employer unable *408 to recover for his losses. See The legislative history of 301 begins with a review of congressional efforts in the year prior to adoption of the Labor Management Relations Act. Section 10 of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress, but vetoed by the President in 1946, was "the direct antecedent of 301." Charles Dowd Box v. Courtney, Since 10 "contained provisions substantially the same as the provisions of 301," ib its legislative history is highly relevant in ascertaining congressional intent with respect to 301, see The purpose of 10 was "to establish a mutual responsibility when the collective-bargaining process has resulted in a contract." 92 Cong. Rec. 838 (1946) (remarks of Rep.

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

a contract." 92 Cong. Rec. 838 (1946) (remarks of Rep. Case). As introduced in the House, 10 provided for collective-bargaining agreements to be enforceable "against each of the parties thereto."[7] The Senate adopted a bill which *409 encompassed the purposes of 10 of the House version and which, in addition, explicitly permitted an employer to discharge an employee who participated in a strike which was not authorized by the union.[8] Senator Taft, principal proponent of the provision, explained: "If the union violates its collective bargaining-agreement, it is responsible, but no individual member is responsible, and he can in no way be deprived of his rights. But if the union tries to keep its contract and, in violation of its undertaking, some of its members proceed to strike, then the employer may fire those members and they do not have the protection of the Wagner Act." 92 Cong. Rec. 5705-5706 (1946). Thus the Senator stopped short of proposing that individual *410 employees be held liable in damages for engaging in unauthorized strikes. The House's subsequent consideration of the Senate's version reflected its clear understanding of the Senate's limitation on employers' remedies. Representative Case explained the Senate amendment on the floor of the House: "Individual members of a union are not made liable for any money judgment, I might point out, but only the union as an entity. If employees strike in violation of their agreement, the only individual penalty that can be employed is the forfeiture of their right to employment under that contract which is cured when the employer reemploys them."[9] The House then passed the Senate version. In doing so, the House, like the Senate, clearly intended to protect employees from the sanction of a suit for damages for a strike in breach of the collective-bargaining agreement, whether or not the union participated in or authorized the strike. It is true that the President vetoed this bill and that his veto was sustained. Nevertheless, the substantial similarity between the pertinent language of the Case bill as passed by Congress and of 301 as it reads today makes the legislative history of the Case bill vitally significant to a full understanding of the policy behind 301 (b). Six months after the veto, Congress began work on the legislation which became 301.[10] The bill ultimately passed *411 by the House created a federal cause of action for breach of a collective-bargaining agreement.[11] The Committee Report explained that "actions and proceedings involving violations of contracts between employers and labor organizations may be brought by either party." H. R. Rep. No. 245, 80th

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

brought by either party." H. R. Rep. No. 245, 80th Cong., 1st Sess., 45-46 (1947). Section 302 (b) also contained express language precluding enforcement against individuals *412 of judgments entered against unions.[12] In addition, the bill included an amendment to 7 of the National Labor Relations Act providing that "violations of collective bargaining-agreements" would not be protected under the Act, H. R. 3020, 80th Cong., 1st Sess. (1947), 7 (a), thereby allowing employers to discharge wildcat strikers.[13] The House bill also included a provision, however, which allowed an employer to recover damages from individual employees. Section 12 created a damages action against any person engaging in an unlawful concerted activity. The bill defined "unlawful concerted activities" to include, inter alia, jurisdictional strikes, sympathy strikes, and certain picketing activities. Significantly, however, the Senate rejected the House's imposition in 12 of damages liability against individuals for unlawful concerted activity, and a Conference Committee adopted the Senate version.[14] The Senate counterpart to *413 12 of the House bill was 303. Senator Taft offered a floor amendment to 303 which would have established a damages action against individuals who engage in certain types of unlawful concerted activity such as secondary boycotts and jurisdictional strikes. 93 Cong. Rec. 4900 (1947). In a critical exchange during the debate on the proposed amendment, Senator Taft altered the language to limit damages actions to claims against unions, in order to conform with 301 (b) and bar imposition of individual damages liability against employees: "Mr. MORSE: [T]he proposal of the Senator from Ohio would open wide the doors of the Federal courts to damage suits against any person who engaged in a strike or attempted to persuade other employees to engage in a strike for one of the prohibited objectives. "The proposal would very definitely take us back at least 40 years and we would again have the spectacle of mass suits against employees, similar to the infamous Danbury Hatters case. Senators will recall that in that case some 150 members of the union were sued by their employer and the Supreme Court of the United States sustained a judgment against them in the neighborhood of a quarter million dollars. "It also should be pointed out that the substitute proposal is inconsistent with the present provision in the bill allowing a union to be sued for breach of contract. Section 301 of the bill permits suits against labor organizations *414 only, whereas the substitute proposal allows damage suits against `any person.' Also, section 301 limits recovery to the assets of the union. The substitute allows the attachment of employees'

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

of the union. The substitute allows the attachment of employees' bank accounts and all their property. "Mr. TAFT: On request by Senator [Ives] from New York and others who raised the point, I am amending the proposal, by striking out the word `person,' in the second line, and inserting in lieu thereof `labor organization,' so the action will be open only against labor organizations promoting this type of strike."[15] The Senate passed this version of the bill, foreclosing individual damages liability in both 301 and 303 lawsuits. At conference, the Conference Committee squarely rejected 12 of the House bill in favor of 303 of the Senate bill, thereby refusing to create a damages action against individual employees for the conduct prohibited in that section. In addition, the Committee deleted the provision in the House bill which had removed protection under 7 of the National Labor Relations Act for concerted activity in breach of a collective-bargaining agreement for the stated reason that the provision was unnecessary in light of recent decisions of the National Labor Relations Board. Those provisions had held that "strikes in violation of collective bargaining contracts were not concerted activities protected by the act and [the NLRB had] refused to reinstate employees discharged for engaging in such activities." H. R. Conf. Rep. No. 510, 80th *415 Cong., 1st Sess., 39 (1947). The Committee, therefore, opted for a discharge remedy for violations of 303 by individuals, rather than for the damages remedy that had been proposed by the House. At the same time, it preferred discharge as the employer's remedy under 301 where employees violate the no-strike provision of their collective-bargaining agreement.[16] Thus, while 301 (b) explicitly addresses only union-authorized violations of a collective-bargaining agreement, the "penumbra" of 301 (b), Textile 353 U. S., as informed by its legislative history, establishes that Congress meant to exclude individual strikers from damages liability, whether or not they were authorized by their union to strike.[17] The legislative debates and the process of legislative amendment demonstrate that Congress deliberately chose to allow a damages remedy for breach of the *416 no-strike provision of a collective-bargaining agreement only against unions, not individuals, and, as to unions, only when they participated in or authorized the strike. See Carbon Fuel v. Mine Workers, Congress itself balanced the competing advantages and disadvantages inherent in the possible remedies to combat wildcat strikes, and "we are strongly guided by" its choice.[18]Atkinson *417 v. Sinclair Refining See Howard Johnson 417 U. S., at Accordingly, we hold that 301 (a) does not sanction damages actions against individual employees for violating the

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

“In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Inc., Instead of adhering to the Legislature’s design, the Court today adopts an interpretation of the Copyright Act at odds with Congress’ aim to protect copyright owners against the unauthorized importation of low-priced, foreign­ made copies of their copyrighted works. The Court’s bold departure from Congress’ design is all the more stunning, for it places the United States at the vanguard of the movement for “international exhaustion” of copyrights—a movement the United States has steadfastly resisted on the world stage. To justify a holding that shrinks to insignificance copy­ right protection against the unauthorized importation of foreign-made copies, the Court identifies several “practical problems.” Ante, The Court’s parade of horribles, however, is largely imaginary. Congress’ objective in enacting 17 U.S. C. importation prohibition can be honored without generating the absurd conse­ quences hypothesized in the Court’s opinion. I dissent 2 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting from the Court’s embrace of “international exhaustion,” and would affirm the sound judgment of the Court of Appeals. I Because economic conditions and demand for particular goods vary across the globe, copyright owners have a financial incentive to charge different prices for copies of their works in different geographic regions. Their ability to engage in such price discrimination, however, is under- mined if arbitrageurs are permitted to import copies from low-price regions and sell them in high-price regions. The question in this case is whether the unauthorized importation of foreign-made copies constitutes copyright infringement under U. S. law. To answer this question, one must examine three provi­ sions of Title 17 of the U. S. Code: 109(a), and 602(a)(1). Section 106 sets forth the “exclusive rights” of a copyright owner, including the right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” This distribution right is limited by which provides: “Notwithstanding the provisions of section 106(3), the owner of a particular copy or phono- record lawfully made under this title is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Section 109(a) codifies the “first sale doc­ trine,” a doctrine articulated in Bobbs-Merrill Co. v. Straus, which held that a copyright owner could not control the price at which re­ tailers sold lawfully purchased copies of its work.

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

which re­ tailers sold lawfully purchased copies of its work. The first sale doctrine recognizes that a copyright owner should not be permitted to exercise perpetual control over the distribution of copies of a copyrighted work. At some point—ordinarily the time of the first commercial sale— Cite as: 568 U. S. (2013) 3 GINSBURG, J., dissenting the copyright owner’s exclusive right under to control the distribution of a particular copy is exhausted, and from that point forward, the copy can be resold or otherwise redistributed without the copyright owner’s authorization. Section 602(a)(1) (2006 ed., Supp. V)1—last, but most critical, of the three copyright provisions bearing on this case—is an importation ban. It reads: “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringe- ment of the exclusive right to distribute copies or phonorecords under section 106, actionable under sec­ tion 501.” In Quality Distributors, the Court held that a copyright owner’s right to control importation under is a component of the distribution right set forth in and is therefore subject to codification of the first sale doctrine. Quality thus held that the importation of copies made in the United States but sold abroad did not rank as copyright infringement under at See also (GINSBURG, J., concurring) (Quality “involve[d] a ‘round trip’ journey, travel of the copies in question from the United States to places abroad, then back again”).2 —————— 1 In 2008, Congress renumbered what was previously as See Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PROIPA), Like the Court, I refer to the provision by its current numbering. 2 Although JUSTICE KAGAN’s concurrence suggests that Quality erred in “holding that limits” ante, that recent, unanimous holding must be taken as a given. See John R. Sand & Gravel (“[S]tare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress 4 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Important to the Court’s holding, the copies at issue in Quality had been “ ‘lawfully made under [Title 17]’ ”—a prerequisite for application of n. 9 (quoting ). Section 602(a)(1), the Court noted, would apply to “copies that were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” Drawing on an example discussed during a 1964 public meeting on pro­ posed revisions to the U. S. copyright laws,3 the Court stated: “If the author of [a] work gave the exclusive United States

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

the author of [a] work gave the exclusive United States distribution rights—enforceable under the Act—to the publisher of the United States edition and the exclusive British distribution rights to the pub­ lisher of the British edition, presumably only those [copies] made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a de­ fense to an action under )). The Court’s objective in this case should be to avoid unduly “constrict[ing] the scope of ban on unauthorized importation,” ante, at 1 (opinion of KAGAN, J.), while at the same time remaining faithful to Quality ’s holding and to the text and history of other Copyright Act provisions. This aim is not difficult to achieve. See Parts II–V, infra. JUSTICE KAGAN and I appear to agree to this extent: Congress meant the ban on unauthorized importation to have real force. See ante, at 3 (acknowl­ edging that “Wiley may have a point about what was de­ signed to do”). 3 See Quality Distributors, Inc. v. L’anza Research Int’l, Inc., 5 U.S. 148, n. 20 (quoting Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm. Print 1964) (hereinafter Copyright Law Revision Part 4) (statement of Harriet Pilpel)). Cite as: 568 U. S. (2013) 5 GINSBURG, J., dissenting to an action under if there was a distribution of the copies).” As the District Court and the Court of Appeals concluded, see ; App. to Pet. for Cert. 70a–73a, application of the Quality analysis to the facts of this case would preclude any invocation of Petitioner Supap Kirtsaeng imported and then sold at a profit over 600 copies of copyrighted textbooks printed outside the United States by the Asian subsidiary of respondent John Wiley & Sons, Inc. (Wiley). App. 29– 34. See also ante, at 3–5 (opinion of the Court). In the words the Court used in Quality these copies “were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” 5 U. S., Section 109(a) therefore does not ap- ply, and Kirtsaeng’s unauthorized importation constitutes copyright infringement under The Court does not deny that under the language I have quoted from Quality Wiley would prevail. Ante, at 27. Nevertheless, the Court dismisses this language, to which all Members of the Quality Court subscribed, as ill-considered dictum.

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

all Members of the Quality Court subscribed, as ill-considered dictum. Ante, 7–28. I agree that the discussion was dictum in the sense that it was not essen­ tial to the Court’s judgment. See Quality 5 U. S., (GINSBURG, J., concurring) (“[W]e do not today resolve cases in which the allegedly infringing imports were manufactured abroad.”). But I disagree with the Court’s conclusion that this dictum was ill considered. Instead, for the reasons explained below, I would hold, consistently with Quality ’s dictum, that authorizes a copyright owner to bar the importation of a copy manufactured abroad for sale abroad. II The text of the Copyright Act demonstrates that Con­ gress intended to provide copyright owners with a potent 6 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting remedy against the importation of foreign-made copies of their copyrighted works. As the Court recognizes, ante, at 3, this case turns on the meaning of the phrase “lawfully made under this title” in In my view, that phrase is most sensibly read as referring to instances in which a copy’s creation is governed by, and conducted in compli­ ance with, Title 17 of the U. S. Code. This reading is consistent with the Court’s interpretation of similar lan­ guage in other statutes. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., (“under” in 11 U.S. C. a Bankruptcy Code provi­ sion exempting certain asset transfers from stamp taxes, means “pursuant to”); (1991) (the phrase “under section 554” in the Equal Access to Justice Act means “subject to” or “governed by” 5 U.S. C. (internal quotation marks omitted)). It also accords with dictionary definitions of the word “under.” See, e.g., American Heritage Dictionary 1887 (“under” means, among other things, “[s]ubject to the authority, rule, or control of ”). Section 109(a), properly read, affords Kirtsaeng no defense against Wiley’s claim of copyright infringement. The Copyright Act, it has been observed time and again, does not apply extraterritorially. See United Dictionary (copyright statute requiring that U. S. copyright notices be placed in all copies of a work did not apply to copies pub­ lished abroad because U. S. copyright laws have no “force” beyond the United States’ borders); 4 M. Nimmer & D. Nimmer, Copyright p. 17–18 (2012) (hereinafter Nimmer) (“[C]opyright laws do not have any extraterrito­ rial operation.”); 4 W. Patry, Copyright p. 13–66 (2012) (hereinafter Patry) (“Copyright laws are rigor- ously territorial.”). The printing of Wiley’s foreign­ manufactured textbooks therefore was not governed by Title 17. The textbooks thus were not “lawfully made Cite as: 568 U. S. (2013) 7 GINSBURG, J.,

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

made Cite as: 568 U. S. (2013) 7 GINSBURG, J., dissenting under [Title 17],” the crucial precondition for application of And if does not apply, there is no dis­ pute that Kirtsaeng’s conduct constituted copyright in­ fringement under The Court’s point of departure is similar to mine. Ac­ cording to the Court, the phrase “ ‘lawfully made under this title’ means made ‘in accordance with’ or ‘in compli­ ance with’ the Copyright Act.” Ante, at 8. But the Court overlooks that, according to the very dictionaries it cites, ante, at 9, the word “under” commonly signals a relation­ ship of subjection, where one thing is governed or regu- lated by another. See Black’s Law Dictionary 1525 (6th ed. 1990) (“under” “frequently” means “inferior” or “subordi­ nate” (internal quotation marks omitted)); 18 Oxford English Dictionary 950 (“under” means, among other things, “[i]n accordance with (some regulative power or principle)” (emphasis added)). See also Webster’s Third New International Dictionary 2487 (1961) (“under” means, among other things, “in a condition of sub- jection, regulation, or subordination” and “suffering re­ striction, restraint, or control by”). Only by disregarding this established meaning of “under” can the Court arrive at the conclusion that Wiley’s foreign-manufactured text­ books were “lawfully made under” U. S. copyright law, even though that law did not govern their creation. It is anomalous, however, to speak of particular conduct as “lawful” under an inapplicable law. For example, one might say that driving on the right side of the road in England is “lawful” under U. S. law, but that would be so only because U. S. law has nothing to say about the sub­ ject. The governing law is English law, and English law demands that driving be done on the left side of the road.4 —————— 4 The Court asserts that my position gives the word “lawfully” in “little, if any, linguistic work to do.” Ante, at 9. That is not so. My reading gives meaning to each word in the phrase “lawfully made 8 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting The logical implication of the Court’s definition of the word “under” is that any copy manufactured abroad—even a piratical one made without the copyright owner’s author­ ization and in violation of the law of the country where it was created—would fall within the scope of Any such copy would have been made “in accordance with” or “in compliance with” the U. S. Copyright Act, in the sense that manufacturing the copy did not violate the Act (be­ cause the Act does not apply extraterritorially). The Court

Justice Ginsburg

dissenting

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(be­ cause the Act does not apply extraterritorially). The Court rightly refuses to accept such an absurd conclusion. Instead, it interprets as applying only to copies whose making actually complied with Title 17, or would have complied with Title 17 had Title 17 been ap­ plicable (i.e., had the copies been made in the United States). See ante, at 8 (“ ‘first sale’ doctrine would apply to copyrighted works as long as their manufacture met the requirements of American copyright law.”). Con­ gress, however, used express language when it called for such a counterfactual inquiry in 17 U.S. C. §(2) and (b). See (2) (“Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either consti­ tuted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106.” (emphasis added)); (“In a case where the making —————— under this title.” The word “made” signifies that the conduct at issue is the creation or manufacture of a copy. See Webster’s Third New International Dictionary 6 (1961) (defining “made” as “artificially produced by a manufacturing process”). The word “lawfully” indicates that for to apply, the copy’s creation must have complied with some body of law. Finally, the prepositional phrase “under this title” clarifies what that body of law is—namely, the copyright prescriptions contained in Title 17 of the U. S. Code. Cite as: 568 U. S. (2013) 9 GINSBURG, J., dissenting of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.” (emphasis added)). Had Congress intended courts to engage in a similarly hypo­ thetical inquiry under Congress would pre- sumably have included similar language in that section. See ; brackets in original)).5 —————— 5 Attempting to show that my reading of is susceptible to the same criticism, the Court points to the now-repealed “manufacturing clause,” which required “copies of a work consisting preponderantly of nondramatic literary material in the English language” to be “manufactured in the United States or Canada.” Copyright Act of 1976, Because Congress expressly referred to manu­ facturing in this provision, the Court contends, the phrase “lawfully made under this title” in cannot mean “manufactured in the United States.” Ante, at 19. This argument is a non sequitur. I do not contend that the phrases “lawfully made under this title” and “manu­ factured in

Justice Ginsburg

dissenting

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https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

phrases “lawfully made under this title” and “manu­ factured in the United States” are interchangeable. To repeat, I read the phrase “lawfully made under this title” as referring to instances in which a copy’s creation is governed by, and conducted in compliance with, Title 17 of the U. S. Code. See Not all copies “manu­ factured in the United States” will satisfy this standard. For example, piratical copies manufactured in the United States without the copy­ right owner’s authorization are not “lawfully made under [Title 17].” Nor would the phrase “lawfully manufactured in the United States” be an exact substitute for “lawfully made under this title.” The making of a copy may be lawful under Title 17 yet still violate some other provi­ sion of law. Consider, for example, a copy made with the copyright owner’s authorization by workers who are paid less than minimum wage. The copy would be “lawfully made under [Title 17]” in the sense that its creation would not violate any provision of that title, but the copy’s manufacturing would nonetheless be unlawful due to the viola­ 10 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Not only does the Court adopt an unnatural construc­ tion of the phrase “lawfully made under this title.” Concomitantly, the Court reduces to insignifi­ cance. As the Court appears to acknowledge, see ante, at 26, the only independent effect has under to­ day’s decision is to prohibit unauthorized importations carried out by persons who merely have possession of, but do not own, the imported copies. See 17 U.S. C. ( applies to any “owner of a particular copy or phonorecord lawfully made under this title” (emphasis added)).6 If this is enough to avoid rendering entirely “superfluous,” ante, 6, it hardly suffices to give the owner’s importation right the scope Congress intended it to have. Congress used broad language in ; it did so to achieve a broad objective. Had Congress intended simply to provide a copyright remedy against larcenous lessees, licensees, consignees, and bailees of films and other copyright-protected goods, see ante, at 13–14, 26, it likely would have used language tailored to that narrow purpose. See 2 Nimmer at 8–184.31, n. 432 (“It may be wondered whether potential causes of action [against licensees and the like] are more than theo­ retical.”). See also ante, (KAGAN, J., concurring) (the Court’s decision limits “to a fairly esoteric set of —————— tion of the minimum-wage laws. 6 When was originally enacted in 1976, it played an addi­ tional role—providing a private cause of action against importers of piratical goods. See

Justice Ginsburg

dissenting

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https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

private cause of action against importers of piratical goods. See Quality 5 U. S., at 146. In 2008, however, Congress amended to provide for such a cause of action in (2), which prohibits the unauthorized “[i]mportation into the United States of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have consti­ tuted an infringement of copyright if [Title 17] had been applicable.” See PROIPA, –4260. Thus, under the Court’s interpretation, the only conduct reached by but not (2) is a nonowner’s unauthorized importation of a nonpiratical copy. Cite as: 568 U. S. (2013) 11 GINSBURG, J., dissenting applications”).7 The Court’s decision also overwhelms 17 U.S. C. (3)’s exceptions to importation prohibi­ tion. 2 P. Goldstein, Copyright p. 7:141 (3d ed. 2012) (hereinafter Goldstein).8 Those exceptions permit the importation of copies without the copyright owner’s authorization for certain governmental, personal, schol- arly, educational, and religious purposes. 17 U.S. C. (3). Copies imported under these exceptions “will often be lawfully made gray market goods purchased through normal market channels abroad.” 2 Goldstein —————— 7 Notably, the Court ignores the history of which reveals that the primary purpose of the prescription was not to provide a remedy against rogue licensees, consignees, and bailees, against whom copyright owners could frequently assert breach-of-contract claims even in the absence of Instead, the primary purpose of was to reach third-party importers, enterprising actors like Kirtsaeng, against whom copyright owners could not assert contract claims due to lack of privity. See Part III, infra. 8 Section 602(a)(3) provides: “This subsection [i.e., ] does not apply to— “(A) importation or exportation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; “(B) importation or exportation, for the private use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords forming part of such person’s personal baggage; or “(C) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of sys­ tematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2).” 12 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting at 7:141.9 But if, as the Court holds, such copies can in any event be imported by virtue of (3)’s work has already been done. For example, had Congress conceived of sweep as the Court does, what earthly reason would there be to provide, as Congress did in (3)(C), that a library may import “no more than five copies” of a non-audiovisual work for its “lending or archival purposes”? The far more plausible reading of § and 602(a), then, is that Congress intended to apply to copies made in the United States, not to copies manufactured and sold abroad. That reading of the first sale and impor­ tation provisions leaves (3)’s exceptions with real, meaningful work to do. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sen­ tence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)). In the range of circum- stances covered by the exceptions, (3) frees indi­ viduals and entities who purchase foreign-made copies abroad from the requirement they would otherwise face under of obtaining the copyright owner’s per­ mission to import the copies into the United States.10 —————— 9 The term “gray market good” refers to a good that is “imported out­ side the distribution channels that have been contractually negotiated by the intellectual property owner.” Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429 Such goods are also commonly called “parallel imports.” 10 The Court asserts that its reading of is bolstered by which extends the copyright “protection[s]” of Title 17 to a wide variety of foreign works. See ante, at 10–11. The “protection under this title” afforded by however, is merely protection against infringing conduct within the United States, the only place where Title 17 applies. See 4 W. Patry, Copyright pp. 13–128 to 13–129 (2012) (hereinafter Patry). Thus, my reading of the phrase “under this title” in Cite as: 568 U. S. (2013) 13 GINSBURG, J., dissenting III The history of reinforces the conclusion I draw

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

dissenting III The history of reinforces the conclusion I draw from the text of the relevant provisions: does not apply to copies manufactured abroad. Section 602(a)(1) was enacted as part of the Copyright Act of 1976, –2590. That Act was the product of a lengthy revision effort overseen by the U. S. Copyright Office. See Mills Music, In its initial 1961 report on recommended revisions, the Copyright Office noted that publishers had “suggested that the [then-existing] import ban on piratical copies should be extended to bar the importation of foreign edition[s]” in violation of “agreements to divide interna­ tional markets for copyrighted works.” Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 126 (H. R. Judiciary Comm. Print 1961) (herein­ after Copyright Law Revision). See Copyright Act of 1947, (“The importation into the United States of any piratical copies of any work copyrighted —————— is consistent with Congress’ use of that phrase in Fur­ thermore, describes which works are entitled to copyright protec­ tion under U. S. law. But no one disputes that Wiley’s copyrights in the works at issue in this case are valid. The only question is whether Kirtsaeng’s importation of copies of those works infringed Wiley’s copyrights. It is basic to copyright law that “[o]wnership of a copyright is distinct from ownership of any material object in which the work is embodied.” 17 U.S. C. See also (“ ‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”). Given the distinction copyright law draws between works and copies, is inapposite to the question here presented. 4 Patry at 13–129 (“There is no connection, linguistically or substantively, between Section[s] 104 and 109: Section 104 deals with national eligibility for the intangible work of authorship; Section 109(a) deals with the tangible, physical embodiment of the work, the ‘copy.’ ”). 14 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting in the United States is prohibited.”). The Copyright Office originally recommended against such an extension of the importation ban, reasoning that enforcement of territorial restrictions was best left to contract law. Copy­ right Law Revision 126. Publishing-industry representatives argued strenuously against the position initially taken by the Copyright Of­ fice. At a 1962 panel discussion on the Copyright Office’s report, for example, Horace Manges of the American Book Publishers Council stated:

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

example, Horace Manges of the American Book Publishers Council stated: “When a U. S. book publisher enters into a contract with a British publisher to acquire exclusive U. S. rights for a particular book, he often finds that the English edition of that particular book finds its way into this country. Now it’s all right to say, ‘Com­ mence a lawsuit for breach of contract.’ But this is expensive, burdensome, and, for the most part, inef­ fective.” Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copy­ rights on the General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., 212 (H. R. Judiciary Comm. Print 1963). Sidney Diamond, representing London Records, elabo­ rated on Manges’ statement. “There are many situations,” he explained, “in which it is not necessarily a question of the inadequacy of a contract remedy—in the sense that it may be difficult or not quick enough to solve the particular problem.” “Very frequently,” Diamond stated, publishers “run into a situation where copies of [a] work produced in a foreign country may be shipped [to the United States] without violating any contract of the U. S. copyright proprietor.” To illustrate, Diamond noted, if a “British publisher [sells a copy] to an individual who in turn ship[s] it over” to the United States, the indi­ vidual’s conduct would not “violate [any] contract between Cite as: 568 U. S. (2013) 15 GINSBURG, J., dissenting the British and the American publisher.” In such a case, “no possibility of any contract remedy” would exist. The facts of Kirtsaeng’s case fit Diamond’s example, save that the copies at issue here were printed and ini- tially sold in Asia rather than Great Britain. After considering comments on its 1961 report, the Copyright Office “prepared a preliminary draft of provi­ sions for a new copyright statute.” Copyright Law Revi­ sion Part 3: Preliminary Draft for Revised U. S. Copyright Law and Discussions and Comments on the Draft, 88th Cong., 2d Sess., V (H. R. Judiciary Comm. Print 1964). Section 44 of the draft statute addressed the concerns raised by publishing-industry representatives. In particu­ lar, provided: “Importation into the United States of copies or rec­ ords of a work for the purpose of distribution to the public shall, if such articles are imported without the authority of the owner of the exclusive right to dis­ tribute copies or records under this title, constitute an infringement of copyright actionable under section 35 [i.e., the section providing for a private cause of action for copyright infringement].” at 32–33. In a 1964

Justice Ginsburg

dissenting

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of action for copyright infringement].” at 32–33. In a 1964 panel discussion regarding the draft statute, Abe Goldman, the Copyright Office’s General Counsel, left no doubt about the meaning of It represented, he explained, a “shif[t]” from the Copyright Office’s 1961 report, which had recommended against using copyright law to facilitate publishers’ efforts to segment interna­ tional markets. Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203 (H. R. Judiciary Comm. Print 1964). Section 44(a), Gold­ man stated, would allow copyright owners to bring in­ fringement actions against importers of “foreign copies that were made under proper authority.” See also 16 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting 05–206 (Goldman agreed with a speaker’s com­ ment that “enlarge[d]” U. S. copyright law by ex­ tending import prohibitions “to works legally produced in Europe” and other foreign countries).11 The next step in the copyright revision process was the introduction in Congress of a draft bill on July 20, 1964. See Copyright Law Revision Part 5: 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., III (H. R. Judiciary Comm. Print 1965). After another round of public comments, a revised bill was introduced on Feb­ ruary 4, 1965. See Copyright Law Revision Part 6: Sup­ plementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revi­ sion Bill, 89th Cong., 1st Sess., V (H. R. Judiciary Comm. Print 1965) (hereinafter Copyright Law Revision Part 6). In language closely resembling the statutory text later enacted by Congress, of the 1965 bill provided: “Importation into the United States, without the au­ thority of the owner of copyright under this title, of copies or phonorecords of a work for the purpose of distribution to the public is an infringement of the ex­ clusive right to distribute copies or phonorecords un­ der section 106, actionable under section 501.” at 292.12 —————— 11 As the Court observes, ante, 9, Irwin Karp of the Authors League of America stated at the 1964 panel discussion that ran counter to “the very basic concept of copyright law that, once you’ve sold a copy legally, you can’t restrict its resale.” Copyright Law Revision Part 4, 12. When asked if he was “presenting an argument against” however, Karp responded that he was “neutral on th[e] provision.” There is thus little reason to believe that any changes to the wording of before its codification in were made in response to Karp’s discussion of “the problem of

Justice Ginsburg

dissenting

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made in response to Karp’s discussion of “the problem of restricting [the] transfer of lawfully obtained [foreign] copies.” 12 There is but one difference between this language from the 1965 bill and the corresponding language in the current version of : Cite as: 568 U. S. (2013) 17 GINSBURG, J., dissenting The Court implies that the 1965 bill’s “explici[t] re­ fer[ence] to showed a marked departure from of the Copyright Office’s prior draft. Ante, 9. The Copyright Office, however, did not see it that way. In its summary of the 1965 bill’s provisions, the Copyright Office observed that of the 1965 bill, like of the Copyright Office’s prior draft, see at 15–16, permit­ ted copyright owners to bring infringement actions against unauthorized importers in cases “where the copyright owner had authorized the making of [the imported] copies in a foreign country for distribution only in that country.” Copyright Law Revision Part 6, at 1–150. See also at XXVI (Under of the 1965 bill, “[a]n unauthorized importer could be enjoined and sued for damages both where the copies or phonorecords he was importing were ‘piratical’ (that is, where their making would have constituted an infringement if the U. S. copyright law could have been applied), and where their making was ‘lawful.’ ”). The current text of was finally enacted into law in 1976. See Copyright Act of 1976, 90 Stat. 2589–2590. The House and Senate Committee Reports on the 1976 Act demonstrate that Congress understood, as did the Copyright Office, just what that text meant. Both Reports state: “Section 602 [deals] with two separate situations: im­ portation of ‘piratical’ articles (that is, copies or phonorecords made without any authorization of the —————— In the current version, the phrase “for the purpose of distribution to the public” is omitted and the phrase “that have been acquired outside the United States” appears in its stead. There are no material differences between the quoted language from the 1965 bill and the corresponding language contained in the 1964 bill. See Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., 292–293 (H. R. Judiciary Comm. Print 1965). 18 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting copyright owner), and unauthorized importation of copies or phonorecords that were lawfully made. The general approach of section 602 is to make unauthor- ized importation an act of infringement in both cases, but to permit the Bureau of Customs to prohibit im­ portation only of ‘piratical’ articles.” S.

Justice Ginsburg

dissenting

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Customs to prohibit im­ portation only of ‘piratical’ articles.” S. Rep. No. 94– 473, p. 151 (1975) (emphasis added). See also H. R. Rep. No. 94–1476, p. 169 (1976) (same). In sum, the legislative history of the Copyright Act of 1976 is hardly “inconclusive.” Ante, 8. To the con- trary, it confirms what the plain text of the Act conveys: Congress intended to provide copyright owners with a remedy against the unauthorized importation of foreign-made copies of their works, even if those copies were made and sold abroad with the copyright owner’s authorization.13 IV Unlike the Court’s holding, my position is consistent with the stance the United States has taken in international­ trade negotiations. This case bears on the highly con­ tentious trade issue of interterritorial exhaustion. The issue arises because intellectual property law is territorial in nature, see which means that creators of intellectual property “may hold a set of parallel” intellec­ tual property rights under the laws of different nations. Chiappetta, The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340–341 (2000) (hereinafter Chiappetta). There is no international con­ —————— 13 The Court purports to find support for its position in the House and Senate Committee Reports on the 1976 Copyright Act. Ante, at 30–31. It fails to come up with anything in the Act’s legislative history, how­ ever, showing that Congress understood the words “lawfully made under this title” in to encompass foreign-made copies. Cite as: 568 U. S. (2013) 19 GINSBURG, J., dissenting sensus on whether the sale in one country of a good in- corporating protected intellectual property exhausts the intellectual property owner’s right to control the distribu­ tion of that good elsewhere. Indeed, the members of the World Trade Organization, “agreeing to disagree,”14 pro­ vided in Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Apr. 15, 1994, 33 I. L. M. 1197, 1200, that “nothing in this Agree­ ment shall be used to address the issue of exhaustion.” See Chiappetta 346 (observing that exhaustion of intellec­ tual property rights was “hotly debated” during the TRIPS negotiations and that Article 6 “reflects [the negotiators’] ultimate inability to agree” on a single international standard). Similar language appears in other treaties to which the United States is a party. See World Intellectual Property Organization (WIPO) Copyright Treaty, Art. 6(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7 (“Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

Contracting Parties to determine the conditions, if any, under which the ex­ haustion of the right [to control distribution of copies of a copyrighted work] applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.”); WIPO Perfor­ mances and Phonograms Treaty, Art. 8(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 28 (containing language nearly identical to Article 6(2) of the WIPO Copyright Treaty). In the absence of agreement at the international level, each country has been left to choose for itself the exhaus­ tion framework it will follow. One option is a national­ exhaustion regime, under which a copyright owner’s right —————— 14 Chiappetta,The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340 (2000) (hereinafter Chiappetta) (internal quotation marks omitted). 20 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting to control distribution of a particular copy is exhausted only within the country in which the copy is sold. See Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429, 430 (hereinafter Forsyth & Rothnie). Another option is a rule of international exhaustion, under which the authorized distribution of a particular copy anywhere in the world exhausts the copy­ right owner’s distribution right everywhere with respect to that copy. See The European Union has adopted the intermediate approach of regional exhaustion, under which the sale of a copy anywhere within the European Economic Area exhausts the copyright owner’s distribu­ tion right throughout that region. See Section 602(a)(1), in my view, ties the United States to a national-exhaustion framework. The Court’s decision, in con- trast, places the United States solidly in the international­ exhaustion camp. Strong arguments have been made both in favor of, and in opposition to, international exhaustion. See Chiappetta 360 (“[r]easonable people making valid points can, and do, reach conflicting conclusions” regarding the desirability of international exhaustion). International exhaustion subjects copyright-protected goods to competition from lower priced imports and, to that extent, benefits con- sumers. Correspondingly, copyright owners profit from a national-exhaustion regime, which also enlarges the mon­ etary incentive to create new copyrightable works. See Forsyth & Rothnie 432–437 (surveying arguments for and against international exhaustion). Weighing the competing policy concerns, our Govern­ ment reached the conclusion that widespread adoption of the international-exhaustion framework would be incon­ sistent with the long-term economic interests of the United States. See Brief for United States as Amicus Curiae in Quality O. T.

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

for United States as Amicus Curiae in Quality O. T. 1997, No. 96–1470, pp. 22–26 (herein­ Cite as: 568 U. S. (2013) 21 GINSBURG, J., dissenting after Quality Brief).15 Accordingly, the United States has steadfastly “taken the position in international trade negotiations that domestic copyright owners should have the right to prevent the unauthorized importation of copies of their work sold abroad.” The United States has “advanced this position in multilateral trade negotiations,” including the negotiations on the TRIPS Agreement. See also D. Gervais, The TRIPS Agreement: Drafting History and Analysis p. 199 It has also taken a dim view of our trading partners’ adoption of legislation incorporating elements of international exhaustion. See Clapperton & Corones, Locking in Customers, Locking Out Competitors: Anti- Circumvention Laws in Australia and Their Potential Effect on Competition in High Technology Markets, 30 Melbourne U. L. Rev. 657, 664 (2006) (United States expressed concern regarding international-exhaustion leg- islation in Australia); Montén, Comment, The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? 9 Marq. Intellectual —————— 15 The Court states that my “reliance on the Solicitor General’s posi­ tion in Quality is undermined by his agreement in that case with [the] reading of ” that the Court today adopts. Ante, at 33. The United States’ principal concern in both Quality and this case, however, has been to protect copyright owners’ “right to prevent paral­ lel imports.” Brief for United States as Amicus Curiae in Quality O. T. 1997, No. 96–1470, p. 6 (hereinafter Quality Brief). See also Brief for United States as Amicus Curiae 14 (arguing that Kirtsaeng’s interpretation of which the Court adopts, would “subver[t] Section 602(a)(1)’s ban on unauthorized importation”). In Quality the Solicitor General urged this Court to hold that codification of the first sale doctrine does not limit the right to control importation set forth in Quality Brief 7–30. After Quality rejected that contention, the United States reconsidered its position, and it now endorses the interpretation of the phrase “lawfully made under this title” I would adopt. Brief for United States as Amicus Curiae 6–7, 13–14. 22 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Property L. Rev. 387, 417–418 (2005) (same with respect to New Zealand and Taiwan). Even if the text and history of the Copyright Act were am- biguous on the answer to the question this case presents— which they are not, see Parts II–III, supra16—I would resist a holding out of accord with the firm position the United States has taken on exhaustion in internation­

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

position the United States has taken on exhaustion in internation­ al negotiations. Quality I acknowledge, discounted the Government’s concerns about potential inconsistency with United States obligations under certain bilateral trade agreements. See 5 U. S., at 153–154. See also Quality Brief 22–24 (listing the agreements). That decision, however, dealt only with copyright-protected products made in the United States. See 5 U. S., (GINSBURG, J., concurring). Quality left open the question whether owners of U. S. copyrights could retain control over the importation of copies manufactured and sold abroad—a point the Court obscures, see ante, at 33 (arguing that Quality “significantly eroded” the national-exhaustion principle that, in my view, embraces). The Court today answers that question with a resounding “no,” and in doing so, it risks undermining the United States’ credibility on the world stage. While the Government has urged our trading partners to refrain from adopting international-exhaustion regimes that could benefit consumers within their borders but would impact adversely on intellectual-property producers in the United States, the Court embraces an international-exhaustion rule that could benefit U. S. consumers but would likely —————— 16 Congress hardly lacks capacity to provide for international exhaus­ tion when that is its intent. Indeed, Congress has expressly provided for international exhaustion in the narrow context of semiconductor chips embodying protected “mask works.” See 17 U.S. C. 906(b). See also 2 M. Nimmer & D. Nimmer, Copyright p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale doctrine under expressly immunizes unauthorized importation.”). Cite as: 568 U. S. (2013) GINSBURG, J., dissenting disadvantage foreign holders of U. S. copyrights. This dissonance scarcely enhances the United States’ “role as a trusted partner in multilateral endeavors.” Vimar Seguros y Reaseguros, S. 539 (1995). V I turn now to the Court’s justifications for a decision difficult to reconcile with the Copyright Act’s text and history. A The Court asserts that its holding “is consistent with antitrust laws that ordinarily forbid market divisions.” Ante, at 32. See also ante, at 18 (again referring to anti­ trust principles). Section 602(a)(1), however, read as I do and as the Government does, simply facilitates copyright owners’ efforts to impose “vertical restraints” on distribu­ tors of copies of their works. See Forsyth & Rothnie 435 (“Parallel importation restrictions enable manufacturers and distributors to erect ‘vertical restraints’ in the market through exclusive distribution agreements.”). See gener- ally Leegin Creative Leather Products, We have held that vertical restraints are not per se illegal under of the Sherman Act, 15 U.S. C. because such “restraints can have procompetitive effects.” 551 U. S., at 881–882.17 —————— 17 Despite the Court’s

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

551 U. S., at 881–882.17 —————— 17 Despite the Court’s suggestion to the contrary, this case in no way implicates the per se antitrust prohibition against horizontal “ ‘[a]greements between competitors to allocate territories to minimize competition.’ ” Ante, at 32 (quoting Palmer v. BRG of Ga., Inc., 8 U.S. 46, (1990) ). Wiley is not requesting authority to enter into collusive agreements with other textbook publishers that would, for example, make Wiley the exclusive supplier of textbooks on particular subjects within particular geographic regions. Instead, Wiley asserts no more than the prerogative to impose vertical restraints 24 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting B The Court sees many “horribles” following from a hold­ ing that the phrase “lawfully made under this title” does not encompass foreign-made copies. Ante, (internal quotation marks omitted). If excluded foreign-made copies, the Court fears, then copyright own­ ers could exercise perpetual control over the downstream distribution or public display of such copies. A ruling in Wiley’s favor, the Court asserts, would shutter libraries, put used-book dealers out of business, cripple art muse­ ums, and prevent the resale of a wide range of consumer goods, from cars to calculators. Ante, at 19–22. See also ante, –3 (KAGAN, J., concurring) (expressing concern about “imposing downstream liability on those who pur­ chase and resell in the United States copies that happen to have been manufactured abroad”). Copyright law and precedent, however, erect barriers to the anticipated horribles.18 1 Recognizing that foreign-made copies fall outside the ambit of would not mean they are forever free of the first sale doctrine. As earlier observed, see the Court stated that doctrine initially in its 1908 Bobbs- —————— on the distribution of its own textbooks. See Hovenkamp, Post-Sale Restraints and Competitive Harm: The First Sale Doctrine in Perspec­ tive, 66 N. Y. U. Ann. Survey Am. L. 487, 488 (“vertical re­ straints” include “limits [on] the way a seller’s own product can be distributed”). 18 As the Court observes, ante, at 32–33, the United States stated at oral argument that the types of “horribles” predicted in the Court’s opinion would, if they came to pass, be “worse than the frustration of market segmentation” that will result from the Court’s interpretation of Tr. of Oral Arg. 51. The United States, however, recognized that this purported dilemma is a false one. As the United States explained, the Court’s horribles can be avoided while still giving mean­ ingful effect to ban on unauthorized importation. Cite as: 568 U. S. (2013) 25 GINSBURG, J., dissenting Merrill decision. At that time, no

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

25 GINSBURG, J., dissenting Merrill decision. At that time, no statutory provision expressly codified the first sale doctrine. Instead, copy­ right law merely provided that copyright owners had “the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending” their works. Copyright Act of 1891, In Bobbs-Merrill, the Court addressed the scope of the statutory right to “ven[d].” In granting that right, the Court held, Congress did not intend to permit copyright owners “to fasten a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it and had given a satisfactory price for it.” –350. “[O]ne who has sold a copy­ righted article without restriction,” the Court ex­ plained, “has parted with all right to control the sale of it.” Thus, “[t]he purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.” Under the logic of Bobbs-Merrill, the sale of a foreign­ manufactured copy in the United States carried out with the copyright owner’s authorization would exhaust the copyright owner’s right to “vend” that copy. The copy could thenceforth be resold, lent out, or otherwise redis­ tributed without further authorization from the copyright owner. Although uses the word “distribute” rather than “vend,” there is no reason to think Congress intended the word “distribute” to bear a meaning different from the construction the Court gave to the word “vend” in Bobbs- Merrill. See (emphasizing that the question before the Court was “purely [one] of statutory construction”).19 —————— 19 It appears that the Copyright Act of 1976 omitted the word “vend” and introduced the word “distribute” to avoid the “redundan[cy]” present in pre-1976 law. Copyright Law Revision: Report of the Regis­ ter of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 21 (H. R. Judiciary Comm. Print 1961) (noting 26 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Thus, in accord with Bobbs-Merrill, the first authorized distribution of a foreign-made copy in the United States exhausts the copyright owner’s distribution right under After such an authorized distribution, a library may lend, or a used-book dealer may resell, the foreign­ made copy without seeking the copyright owner’s permis­ sion. Cf. ante, at 19–21. For example, if Wiley, rather than Kirtsaeng, had imported into the United States and then sold the foreign­ made textbooks at issue in this case, Wiley’s dis­ tribution right would have been exhausted under

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

case, Wiley’s dis­ tribution right would have been exhausted under the rationale of Bobbs-Merrill. Purchasers of the textbooks would thus be free to dispose of the books as they wished without first gaining a license from Wiley. This line of reasoning, it must be acknowledged, signifi­ cantly curtails the independent effect of If, as I maintain, the term “distribute” in incorporates the first sale doctrine by virtue of Bobbs-Merrill, then codification of that doctrine adds little to the regulatory regime.20 Section 109(a), however, does serve —————— that the exclusive rights to “publish” and “vend” works under the Copyright Act of 1947, (a), –653, were “redundant”). 20 My position that Bobbs-Merrill lives on as a limiting construction of the distribution right does not leave with no work to do. There can be little doubt that the books at issue in Bobbs-Merrill were published and first sold in the United States. See Bobbs-Merrill Co. v. Straus, F. 155, (the publisher claiming copy- right infringement in Bobbs-Merrill was incorporated and had its principal office in Indiana). See also Copyright Act of 1891, 26 Stat. 1107–1108 (generally prohibiting importation, even by the copyright owner, of foreign-manufactured copies of copyrighted books); 4 Patry 3:40, at 13–111 (under the Copyright Act of 1891, “copies of books by both foreign and U. S. authors had to be printed in the United States”). But cf. ante, at 18 (asserting, without acknowledging the 1891 Copy­ right Act’s general prohibition against the importation of foreign-made copies of copyrighted books, that the Court is unable to find any “geo­ graphical distinctions in Bobbs-Merrill ”). Thus, exhaustion occurs under Bobbs-Merrill only when a copy is distributed within the United Cite as: 568 U. S. (2013) 27 GINSBURG, J., dissenting as a statutory bulwark against courts deviating from Bobbs-Merrill in a way that increases copyright owners’ control over downstream distribution, and legislative history indicates that is precisely the role Congress in­ tended to play. Congress first codified the first sale doctrine in of the Copyright Act of 1909, 35 Stat. 1084.21 It did so, the House Committee Report on the 1909 Act explains, “in order to make clear that [Con­ gress had] no intention [of] enlarg[ing] in any way the construction to be given to the word ‘vend.’ ” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 19 (1909). According to the Committee Report, was “not intended to change [exist­ ing law] in any way.” The position I have stated and explained accords with this expression of congressional intent. In enacting and its successors, I would hold, Congress did not “change existing

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

its successors, I would hold, Congress did not “change existing law,” ib by strip­ ping the word “vend” (and thus its substitute “distribute”) of the limiting construction imposed in Bobbs-Merrill. In any event, the reading of the Copyright Act to which I subscribe honors Congress’ aim in enacting while the Court’s reading of the Act severely diminishes role. See at 10–12. My position in no way tugs against the principle underlying —i.e., that certain conduct by the copyright owner exhausts the —————— States with the copyright owner’s permission, not when it is distributed abroad. But under as interpreted in Quality any author­ ized distribution of a U. S.-made copy, even a distribution occurring in a foreign country, exhausts the copyright owner’s distribution right under See 5 U. S., at 145, n. 14. Section 109(a) therefore provides for exhaustion in a circumstance not reached by Bobbs-Merrill. 21 Section 41 of the 1909 Act provided: “[N]othing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” This language was repeated without material change in of the Copyright Act of 1947, As noted above, see 17 U.S. C. sets out the current codification of the first sale doctrine. 28 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting owner’s distribution right. The Court, in contrast, fails to give meaningful effect to Congress’ manifest intent in to grant copyright owners the right to control the importation of foreign-made copies of their works. 2 Other statutory prescriptions provide further protection against the absurd consequences imagined by the Court. For example, (3)(C) permits “an organization oper­ ated for scholarly, educational, or religious purposes” to import, without the copyright owner’s authorization, up to five foreign-made copies of a non-audiovisual work— notably, a book—for “library lending or archival purposes.” But cf. ante, at 19–20 (suggesting that affirming the Se­ cond Circuit’s decision might prevent libraries from lend­ ing foreign-made books).22 The Court also notes that amici representing art muse­ ums fear that a ruling in Wiley’s favor would prevent museums from displaying works of art created abroad. Ante, (citing Brief for Association of Art Museum Directors et al.). These amici observe that a museum’s right to display works of art often depends on 17 U.S. C. 09(c). See Brief for Association of Art Museum Direc­ tors et al. 11–13. That provision addresses exhaustion of —————— 22 A group of amici representing libraries expresses the concern that lower courts might interpret (3)(C) as authorizing only the importing, but not the

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

interpret (3)(C) as authorizing only the importing, but not the lending, of foreign-made copies of non-audiovisual works. See Brief for American Library Association et al. 20. The United States maintains, and I agree, however, that (3)(C) “is fairly (and best) read as implicitly authorizing lending, in addition to importation, of all works other than audiovisual works.” Brief for United States as Amicus Curiae 30, n. 6. Title 17 U.S. C. 09(c) provides: “Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.” Cite as: 568 U. S. (2013) 29 GINSBURG, J., dissenting a copyright owner’s exclusive right under 06(5) to publicly display the owner’s work. Because 09(c), like applies only to copies “lawfully made under this title,” amici contend that a ruling in Wiley’s favor would prevent museums from invoking 09(c) with respect to foreign-made works of art. at 11–13.24 Limiting 09(c) to U. S.-made works, however, does not bar art museums from lawfully displaying works made in other countries. Museums can, of course, seek the copy­ right owner’s permission to display a work. Furthermore, the sale of a work of art to a U. S. museum may carry with it an implied license to publicly display the work. See 2 Patry at 5–280 (“[C]ourts have noted the potential availability of an implied nonexclusive licens[e] when the circumstances demonstrate that the parties intended that the work would be used for a specific purpose.”). Displaying a work of art as part of a museum exhibition might also qualify as a “fair use” under 17 U.S. C. 07. Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619 F.3d 301, 313–316 (CA4 2010) (display of copyrighted logo in museum-like exhibition constituted “fair use”). The Court worries about the resale of foreign-made consumer goods “contain[ing] copyrightable software pro­ grams or packaging.” Ante, 1. For example, the Court observes that a car might be programmed with diverse forms of software, the copyrights to which might be owned by individuals or entities other than the manu- facturer of the car. Must a car owner, the Court asks, obtain permission from all of these various copyright owners before reselling her car? Although this question strays far from the one presented in this case and briefed by the parties, principles of fair use and implied

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

briefed by the parties, principles of fair use and implied —————— 24 The word “copy,” as it appears in 09(c), applies to the original of a work of art because the Copyright Act defines the term “copies” to “includ[e] the material object in which the work is first fixed.” 30 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting license (to the extent that express licenses do not exist) would likely permit the car to be resold without the copy­ right owners’ authorization.25 Most telling in this regard, no court, it appears, has been called upon to answer any of the Court’s “horribles” in an actual case. Three decades have passed since a federal court first published an opinion reading as applicable exclusively to copies made in the United States. See Columbia Broadcasting System, summarily aff ’d, Yet Kirtsaeng and his supporting amici cite not a single case in which the owner of a consumer good authorized for sale in the United States has been sued for copyright infringe­ ment after reselling the item or giving it away as a gift or to charity. The absence of such lawsuits is unsurprising. Routinely suing one’s customers is hardly a best business —————— 25 Principlesof fair use and implied license may also allow a U. S. tourist “who buys a copyrighted work of art, a poster, or a bumper sticker” abroad to publicly “display it in America without the copyright owner’s further authorization.” Ante, at 15. (The tourist could lawfully bring the work of art, poster, or bumper sticker into the United States under 17 U.S. C. (3)(B), which provides that impor­ tation ban does not apply to “importation by any person arriving from outside the United States with respect to copies forming part of such person’s personal baggage.”). Furthermore, an individual clearly would not incur liability for infringement merely by displaying a foreign-made poster or other artwork in her home. See 06(5) (grant­ ing the owners of copyrights in “literary, musical, dramatic, and chore­ ographic works, pantomimes, and pictorial, graphic, or sculptural works” the exclusive right “to display the copyrighted work publicly” (emphasis added)). See also (a work is displayed “publicly” if it is displayed “at a place open to the public or at any place where a sub­ stantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” (emphasis added)). Cf. 2 Nimmer at 8–192.2(1) (“[A] performance limited to members of the family and invited guests is not a public performance.” (footnote omitted)). Cite as: 568 U. S. (2013) 31 GINSBURG,

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

(footnote omitted)). Cite as: 568 U. S. (2013) 31 GINSBURG, J., dissenting practice.26 Manufacturers, moreover, may be hesitant to do business with software programmers taken to suing consumers. Manufacturers may also insist that soft- ware programmers agree to contract terms barring such lawsuits. The Court provides a different explanation for the absence of the untoward consequences predicted in its opinion—namely, that lower court decisions regarding the scope of first sale prescription have not been uniform. Ante, at Uncertainty generated by these conflicting decisions, the Court notes, may have deterred some copyright owners from pressing infringement claims. Ante, at –24. But if, as the Court suggests, there are a multitude of copyright owners champing at the bit to bring lawsuits against libraries, art museums, and consumers in an effort to exercise perpetual control over the down­ stream distribution and public display of foreign-made copies, might one not expect that at least a handful of such lawsuits would have been filed over the past 30 years? The absence of such suits indicates that the “practical problems” hypothesized by the Court are greatly exagger­ ated. Ante,27 They surely do not warrant disregard­ —————— 26 Exerting extensive control over secondary markets may not always be in a manufacturer’s best interest. Carmakers, for example, often trumpet the resale value of their vehicles. See, e.g., Nolan, UD grad leads Cadillac marketing, Dayton Daily News, Apr. 2, 2009, p. A8 (“Cadillac plays up its warranty coverage and reliable resale value to prospective customers.”). If the transaction costs of reselling vehicles were to rise, consumers’ perception of a new car’s value, and thus the price they are willing to pay for such a car, might fall—an outcome hardly favorable to automobile manufacturers. 27 It should not be overlooked that the ability to prevent importation of foreign-made copies encourages copyright owners such as Wiley to offer copies of their works at reduced prices to consumers in less devel­ oped countries who might otherwise be unable to afford them. The Court’s holding, however, prevents copyright owners from barring the importation of such low-priced copies into the United States, where they will compete with the higher priced editions copyright owners 32 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting ing Congress’ intent, expressed in to grant copyright owners the authority to bar the importation of foreign-made copies of their works. Cf. Hartford Under- writers Ins. 6 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it accord­ ing to its terms.” (internal

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

absurd—is to enforce it accord­ ing to its terms.” (internal quotation marks omitted)). VI To recapitulate, the objective of statutory interpretation is “to give effect to the intent of Congress.” American Trucking 310 U. S., at Here, two congres- sional aims are evident. First, in enacting Con- gress intended to grant copyright owners permission to segment international markets by barring the importation of foreign-made copies into the United States. Second, as codification of the first sale doctrine underscores, Congress did not want the exclusive distribution right conferred in to be boundless. Instead of harmonizing these objectives, the Court subordinates the first entirely to the second. It is unsurprising that none of the three major treatises on U. S. copyright law embrace the Court’s con­ struction of See 2 Nimmer at —————— make available for sale in this country. To protect their profit margins in the U. S. market, copyright owners may raise prices in less devel­ oped countries or may withdraw from such markets altogether. See Brief for United States as Amicus Curiae 26; Brief for Text and Aca­ demic Authors Association as Amicus Curiae 12; Brief for Association of American Publishers as Amicus Curiae 37. See also Chiappetta 357– 358 (a rule of national exhaustion “encourages entry and participation in developing markets at lower, locally more affordable prices by eliminating them as risky sources of cheaper parallel imports back into premium markets”). Such an outcome would disserve consumers—and especially students—in developing nations and would hardly advance the “American foreign policy goals” of supporting education and eco­ nomic development in such countries. Quality Brief 25–26. Cite as: 568 U. S. (2013) 33 GINSBURG, J., dissenting 8–184.34 to 8–184.35; 2 Goldstein at 7:141; 4 Patry § 13:44, 13:44.10. Rather than adopting the very international-exhaustion rule the United States has consistently resisted in international-trade negotiations, I would adhere to the national-exhaustion framework set by the Copyright Act’s text and history. Under that regime, codified in Kirtsaeng’s unauthorized importation of the foreign-made textbooks involved in this case infringed Wiley’s copyrights. I would therefore affirm the Second Circuit’s judgment

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

Today the majority holds that the Fourteenth Amendment requires Mississippi to afford petitioner a free transcript because her civil case involves a "fundamental" right. The majority seeks to limit the reach of its holding to the type of case we confront here, one involving the termination of parental rights. I do not think, however, that the new-found constitutional right to free transcripts in civil appeals can be *130 effectively restricted to this case. The inevitable consequence will be greater demands on the States to provide free assistance to would-be appellants in all manner of civil cases involving interests that cannot, based on the test established by the majority, be distinguished from the admittedly important interest at issue here. The cases on which the majority relies, primarily cases requiring appellate assistance for indigent criminal defendants, were questionable when decided, and have, in my view, been undermined since. Even accepting those cases, however, I am of the view that the majority takes them too far. I therefore dissent. I Petitioner requests relief under both the Due Process and Equal Protection Clauses, though she does not specify how either Clause affords it. The majority accedes to petitioner's request. But, carrying forward the ambiguity in the cases on which it relies, the majority does not specify the source of the relief it grants. Those decisions are said to "reflect both equal protection and due process concerns." Ante, at 120. And, while we are told that "cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,' " ), the majority nonetheless acknowledges that "`[m]ost decisions in this area res[t] on an equal protection framework,' " ante, at 120 (quoting ). It then purports to "place this case within the framework established by our past decisions in this area." Ante, at 120. It is not clear to me whether the majority disavows any due process support for its holding. (Despite the murky disclaimer, the majority discusses numerous cases that squarely relied on due process considerations.) I therefore analyze petitioner's claim under both the Due Process and Equal Protection Clauses. If neither Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no amalgam of the two does. *131 A We have indicated on several occasions in this century that the interest of parents in maintaining their relationships with their children is "an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Assuming that petitioner's interest may not be impinged without due process of law, I do not think that the Due Process Clause

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

law, I do not think that the Due Process Clause requires the result the majority reaches. Petitioner's largest obstacle to a due process appeal gratis is our oft-affirmed view that due process does not oblige States to provide for any appeal, even from a criminal conviction. See, e. g., (noting that "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all" (citation omitted)); (94) ("A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A citation of authorities upon the point is unnecessary"). To be sure, we have indicated, beginning with that where an appeal is provided, States may be prohibited from erecting barriers to those unable to pay. As I described last Term in my concurring opinion in 5 U.S. 343, however, I believe that these cases are best understood as grounded in equal protection analysis, and thus make no inroads on our longstanding rule that States that accord due process in a hearing-level tribunal need not provide further review. The majority reaffirms that due process does not require an appeal. Ante, at 110, 120. Indeed, as I noted above, it *132 is not clear that the majority relies on the Due Process Clause at all. The majority does discuss, however, one case in which the Court stated its holding in terms of due process: In Boddie, the Court held violative of due process a statute that exacted fees averaging $60 from persons seeking marital dissolution. Citing the importance of the interest in ending a marriage, and the State's monopoly over the mechanisms to accomplish it, we explained that, "at a minimum" and "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie has little to do with this case. It, "of course, was not concerned with post-hearing review." Rather, the concern in Boddie was that indigent persons were deprived of "fundamental rights" with no hearing whatsoever. Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural protections above and beyond what our parental termination cases have required. She received both notice and a hearing before a neutral, legally trained decisionmaker. She was represented

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

hearing before a neutral, legally trained decisionmaker. She was represented by counsel—even though due process does not in every case require the appointment of counsel. See Through her attorney, petitioner was able to confront the evidence and witnesses against her. And, in accordance with the Chancery Court was required to find that petitioner's parental unfitness was proved by clear and convincing evidence. Indeed, petitioner points to no hearinglevel process to which she was entitled that she did not receive. Given the many procedural protections afforded petitioner, I have little difficulty concluding that "due process has been accorded in the tribunal of first instance." Ohio ex rel. Due process has never compelled an appeal where, as here, its rigors are satisfied by an adequate hearing. Those cases in which the Court has required States to alleviate financial obstacles to process beyond a hearing—though sometimes couched in due process terms—have been based on the equal protection proposition that if the State chooses to provide for appellate review, it "`can no more discriminate on account of poverty than on account of religion, race, or color.' " (quoting ) There seems, then, no place in the Due Process Clause—certainly as an original matter, and even as construed by this Court—for the constitutional "right" crafted by the majority today. I turn now to the other possible source: The Equal Protection Clause. B As I stated last Term in I do not think that the equal protection theory underlying the Griffin line of cases remains viable. See 5 U.S., -378. There, I expressed serious reservations as to the continuing vitality of As it did in the Court today not only adopts the equal protection theory of —which was dubious ab initio and which has been undermined since—but extends it. Thus, much of what I said in bears repeating here. In Griffin, the State of required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this "discriminate[d] against some convicted defendants on account of their poverty," 351 U.S., at Justice Harlan, in dissent, perceived a troubling shift in this Court's equal protection jurisprudence. The Court, he noted, did not "dispute either the necessity for a bill of exceptions *134 or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party." But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined "an invidious classification between the `rich' and the `poor.' " Disputing this early manifestation

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

the `rich' and the `poor.' " Disputing this early manifestation of the "disparate impact" theory of equal protection, Justice Harlan argued: "[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against `indigents' by name would be unconstitutional." Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? "The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences." The issue in Griffin was not whether had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause. In Justice Harlan again confronted what Justice Clark termed the Court's "fetish for indigency," 9 Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that "[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States `an affirmative duty to lift the handicaps *135 flowing from differences in economic circumstances.' " Justice Harlan's views were accepted by the Court in in which "[w]e rejected a disparate impact theory of the Equal Protection Clause altogether." We spurned the claim that "a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." 426 U.S., 2. Absent proof of discriminatory purpose, official action did not violate the Fourteenth Amendment "solely because it has a racially disparate impact." Hearkening back to Justice Harlan's dissents in Griffin and we recognized that "[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S., 8 The lesson of is that

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

affluent white." 426 U.S., 8 The lesson of is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to "guarante[e] equal laws, not equal results." Personnel Administrator of 3 Since we have regularly required more of an equal protection claimant than a showing that state action has a *136 harsher effect on him or her than on others. See, e. g., ("The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group" (internal quotation marks and citations omitted)); see also 5 U. S., (citing cases). Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, members of one sex, Personnel Administrator v. and poor persons seeking to exercise protected rights, The majority attempts to avoid what I regard as the irresistible force of the line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above "sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action." Ante, at 125. Petitioner, in apparent contrast, "is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication." She, "[l]ike a defendant resisting criminal conviction, seeks to be spared from the State's devastatingly adverse action." But, also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. See ante, at 110, 120. She defended against the "destruction of her family bonds" in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires "state aid to subsidize [her] privately initiated" *137 appeal—an appeal that neither petitioner nor the majority claims Mississippi is required to provide—to overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortion—each of which the State may, but is not required to, provide—and a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it. Nor does v. a case decided six years earlier, operate to limit was yet another manifestation of the "equalizing" notion of equal protection that this Court began to question in See To the extent its reasoning survives I think that is distinguishable. Petitioner was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extrastatutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was "`nondiscriminatory on its face,' " the law "work[ed] an invidious discrimination" as to and all other indigents because they could not afford to pay their fines. 399 U.S., 2. The majority concludes that the sanctions involved in are analogous to "the Mississippi prescription here at issue," in that both do not have merely a disparate impact, "they apply to all indigents and do not reach anyone outside that class." Ante, at 1. Even assuming that ' imprisonment gave rise to an equal protection violation, however, M. L. B.'s circumstances are not comparable. M. L. B.'s parental rights were terminated—the analog to ' extended imprisonment—because the Chancery Court found, after a hearing, that she was unfit to remain her children's mother, not because she was indigent. Her indigency only prevented her from taking *138 advantage of procedures above and beyond those required by the Constitution—in the same way that indigency frequently prevents persons from availing themselves of a variety of state services.[1] The Griffin line of cases ascribed to—one might say announced—an equalizing notion of the Equal Protection Clause that would, I think, have startled the Fourteenth Amendment's Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi's requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification.

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide.[2] Any adverse *139 impact that the transcript requirement has on any person seeking to appeal arises not out of the State's action, but out of factors entirely unrelated to it. II If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority's extension of them. The interest at stake in this case differs in several important respects from that at issue in cases such as Griffin. Petitioner's interest in maintaining a relationship with her children is the subject of a civil, not criminal, action. While certain civil suits may tend at the margin toward criminal cases, and criminal cases may likewise drift toward civil suits, the basic distinction between the two finds root in the Constitution and has largely retained its vitality in our jurisprudence. In dissent in Justice Black stated that "in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases." The Constitution provides for a series of protections of the unadorned liberty interest at stake in criminal proceedings. These express protections include the Fifth Amendment's guarantee of grand jury indictment, and protection against double jeopardy and selfincrimination; the Sixth Amendment's guarantees of a speedy and public jury trial, of the ability to confront witnesses, and of compulsory process and assistance of counsel; and the Eighth Amendment's protections against excessive bail and fines, and against cruel and unusual punishment. This Court has given content to these textual protections, and has identified others contained in the Due Process Clause. These protections are not available to the typical *140 civil litigant. Even where the interest in a civil suit has been labeled "fundamental," as with the interest in parental termination suits, the protections extended pale by comparison. A party whose parental rights are subject to termination is entitled to appointed counsel, but only in certain circumstances. See -32. His or her rights cannot be terminated unless the evidence meets a standard higher than the preponderance standard applied in the typical civil suit, but the standard is still lower than that required before a guilty

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

standard is still lower than that required before a guilty verdict. See 455 U. S., at -770. That said, it is true enough that civil and criminal cases do not always stand in bold relief to one another. 404 U.S. 9 marks a particularly discomfiting point along the border between the civil and criminal areas. Based on Griffin, the Court determined there that an indigent defendant had a constitutional right to a free transcript in aid of appealing his conviction for violating city ordinances, which resulted in a $500 fine and no imprisonment. In v. we concluded that an indigent defendant charged with a crime that was not punishable by imprisonment was not entitled to appointed counsel. And yet, in we held that, in some cases, due process required provision of assistance of counsel before the termination of parental rights. The assertion that civil litigants have no right to the free transcripts that all criminal defendants enjoy is difficult to sustain in the face of our holding that some civil litigants are entitled to the assistance of counsel to which some criminal defendants are not. It is at this unsettled (and unsettling) place that the majority lays the foundation of its holding. See ante, at 120-124. The majority's solution to the "anamol[y]" that a misdemeanant receives a free transcript but no trial counsel, while a parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an extension of Mayer. I *141 would answer the conundrum differently: Even if the Griffin line were sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled. Unlike in and the Court gave short shrift in Mayer to the distinction, as old as our Constitution, between crimes punishable by imprisonment and crimes punishable merely by fines. See at 26-; Even though specific text-based constitutional protections have been withheld in cases not involving the prospect of imprisonment, the Court found the difference of no moment in Mayer. The Court reasoned that "[t]he invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed." We reap today what we sowed then. If requiring payment for procedures (e. g., appeals) that are not themselves required is invidious discrimination no matter what sentence results, it is difficult to imagine why it is not invidious discrimination no matter what results and no matter whether the procedures involve a criminal or civil case. See To me this points up the difficulty underlying the entire Griffin

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

me this points up the difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however, and in the absence of any obvious limiting principle, I would restrict it to the criminal appeals to which its authors, see sought to limit it. The distinction between criminal and civil cases—if blurred at the margins—has persisted throughout the law. The distinction that the majority seeks to draw between the case we confront today and the other civil cases that we will surely face tomorrow is far more ephemeral. If all that is required to trigger the right to a free appellate transcript is that the interest at stake appear to us to be as fundamental as the interest of a convicted misdemeanant, several kinds of civil suits involving interests that seem fundamental *142 enough leap to mind. Will the Court, for example, now extend the right to a free transcript to an indigent seeking to appeal the outcome of a paternity suit?[3] To those who wish to appeal custody determinations?[4] How about persons against whom divorce decrees are entered?[5] Civil suits that arise out of challenges to zoning ordinances with an impact on families?[6] Why not foreclosure actions—or at least foreclosure *143 actions seeking to oust persons from their homes of many years?[7] The majority seeks to provide assurances that its holding will not extend beyond parental termination suits. The holdings of Santosky and —both of which involved parental termination—have not, we are told, been applied to other areas of law. Ante, at 128. This is not comforting. Both Santosky and are cases that determined the requirements of due process (not equal protection) in the parental rights termination area. As the Court has said countless times, the requirements of due process vary considerably with the interest involved and the action to which it is subject. It is little wonder, then, that the specific due process requirements for one sort of action are not readily transferable to others. I have my doubts that today's opinion will be so confined. In the first place, it is not clear whether it is an equal protection or a due process opinion. Moreover, the principle on which it appears to rest hardly seems capable of stemming the tide. Petitioner is permitted a free appellate transcript because the interest that underlies her civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and unknown professional difficulties in Under the rule announced today, I do not see how a civil litigant could constitutionally be denied a free transcript in any case that

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

constitutionally be denied a free transcript in any case that involves an interest that is arguably as important as the interest in Mayer (which would appear to include all the types of cases that I mention above, and perhaps many others).[8] What is more, it must be remembered that Griffin did not merely invent *144 the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. See, e. g., ; 372 U. S., 6 I fear that the growth of Griffin in the criminal area may be mirrored in the civil area. In brushing aside the distinction between criminal and civil cases—the distinction that has constrained Griffin for 40 years—the Court has eliminated the last meaningful limit on the free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the Griffin line, has sprung the M. L. B. line, and I have no confidence that the majority's assurances that the line starts and ends with this case will hold true. III As the majority points out, many States already provide for in forma pauperis civil appeals, with some making special allowances for parental termination cases. I do not dispute the wisdom or charity of these heretofore voluntary allocations of the various States' scarce resources. I agree that, for many—if not most—parents, the termination of their right to raise their children would be an exaction more dear than any other. It seems perfectly reasonable for States to choose to provide extra constitutional procedures to ensure that any such termination is undertaken with care. I do not agree, however, that a State that has taken the step, not required by the Constitution, of permitting appeals from termination decisions somehow violates the Constitution when it charges reasonable fees of all would-be appellants. I respectfully dissent.

Justice Stevens

majority

Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs. Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District Court for the Southern District of New York in order to preserve their positions as assistant public defenders in Rockland County, New York.[1] On January 4, on the basis of a showing that the petitioner public defender was about to discharge them solely because they were Republicans, the District Court entered a temporary restraining order preserving the status quo. After hearing evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined[2] petitioner from terminating or attempting to terminate respondents' employment "upon the sole grounds of *509 their political beliefs."[3] The Court of Appeals affirmed in an unpublished memorandum opinion, judgment order reported at The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.[4] Petitioner Branti's predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed *510 or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.[5] The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans and thus did not have the necessary Democratic sponsors: "The sole grounds for the attempted removal of plaintiffs were the facts that plaintiffs' political beliefs differed from those of the ruling Democratic majority in the County Legislature and that the Democratic majority had determined that Assistant Public Defender appointments were to be made on political bases." The court rejected petitioner's belated attempt to justify the dismissals on nonpolitical grounds. Noting that both Branti and his predecessor had described respondents as "competent attorneys," the District Court expressly found that both had

Justice Stevens

majority

Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

"competent attorneys," the District Court expressly found that both had been "satisfactorily performing their duties as Assistant Public Defenders." Having concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible under this Court's decision in only if *511 assistant public defenders are the type of policymaking, confidential employees who may be discharged solely on the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. Although recognizing that they had broad responsibilities with respect to particular cases that were assigned to them, the court found that respondents had "very limited, if any, responsibility" with respect to the overall operation of the public defender's office. They did not "act as advisors or formulate plans for the implementation of the broad goals of the office" and, although though they made decisions in the context of specific cases, "they do not make decisions about the orientation and operation of the office in which they work." The District Court also rejected the argument that the confidential character of respondents' work justified conditioning their employment on political grounds. The court found that they did not occupy any confidential relationship to the policymaking process, and did not have access to confidential documents that influenced policymaking deliberations. Rather, the only confidential information to which they had access was the product of their attorney-client relationship with the office's clients; to the extent that such information was shared with the public defender, it did not relate to the formulation of office policy. In light of these factual findings, the District Court concluded that petitioner could not terminate respondents' employment as assistant public defenders consistent with the First and Fourteenth Amendments. On appeal, a panel of the Second Circuit affirmed, specifically holding that the District Court's findings of fact were adequately supported by the record. That court also expressed "no doubt" that the District Court "was correct in concluding that an assistant public defender was neither a policymaker nor a confidential employee." We granted certiorari, and now affirm. *512 Petitioner advances two principal arguments for reversal:[6] First, that the holding in is limited to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public

Justice Stevens

majority

Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

janitors, it is an acceptable requirement for an assistant public defender. *513 I In the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." That holding was supported by two separate opinions. Writing for the plurality, MR. JUSTICE BRENNAN identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system[7] on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff's employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party's candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs.[8] That conclusion, in *514 his opinion, brought the practice within the rule of cases like Board of condemning the use of governmental power to prescribe what the citizenry must accept as orthodox opinion.[9] Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, MR. JUSTICE BRENNAN also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated: "For at least a quarter-century, this Court has made clear that even though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government *515 may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which [it] could not command directly.' Such interference with constitutional rights is impermissible. "Thus, the respondent's lack of a contractual or tenure `right' to re-employment for the 1969-1970 academic year is immaterial to his free

Justice Stevens

majority

Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the non-renewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. ]; ]. We reaffirm those holdings here." If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.[10] Under this line of analysis, unless the government can demonstrate "an overriding *516 interest," "of vital importance," requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment. MR. JUSTICE STEWART'S opinion concurring in the judgment avoided comment on the first branch of MR. JUSTICE BRENNAN'S analysis, but expressly relied on the same passage from that is quoted above. Petitioner argues that should be read to prohibit only dismissals resulting from an employee's failure to capitulate to political coercion. Thus, he argues that, so long as an employee is not asked to change his political affiliation or to contribute to or work for the party's candidates, he may be dismissed with impunity—even though he would not have been dismissed if he had had the proper political sponsorship and even though the sole reason for dismissing him was to replace him with a person who did have such sponsorship. Such an interpretation would surely emasculate the principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one's job.[11] More importantly, petitioner's interpretation would require the Court to repudiate entirely the conclusion of both MR. JUSTICE BRENNAN and MR. JUSTICE STEWART that the First Amendment *517 prohibits the dismissal of a public employee solely because of his private political beliefs. In sum, there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." II Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee's private

Justice Stevens

majority

Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

some types of government employment. Thus, if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency. In Elrod, it was clear that the duties of the employees—the chief deputy of the process division of the sheriff's office, a process server and another employee in that office, and a bailiff and security guard at the Juvenile Court of Cook County—were not of that character, for they were, as MR. JUSTICE STEWART stated, "nonpolicymaking, nonconfidential" employees.[12] *518 As MR. JUSTICE BRENNAN noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State's election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee's governmental responsibilities. It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university's football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. *519 Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in

Justice Stevens

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Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

an assistant public defender is to represent individual citizens in controversy with the State.[13] As we recently observed in commenting on the duties of counsel appointed to represent indigent defendants in federal criminal proceedings: "[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation." Thus, whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public *520 defender's office to make his tenure dependent on his allegiance to the dominant political party.[14] Accordingly, the entry of an injunction against termination of respondents' employment on purely political grounds was appropriate and the judgment of the Court of Appeals is Affirmed. MR.

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Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

Section 1 of the Civil Rights Act of 1871, Rev. Stat. 1979, now codified as 42 U.S. C. 1983, creates a remedy for violations of federal rights committed by persons acting under color of state law.[1] State courts as well as federal courts have jurisdiction over 1983 cases. The question in *359 this case is whether a state-law defense of "sovereign immunity" is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum. I Petitioner, a former high school student, filed a complaint in the Circuit Court for Pinellas County, Florida, naming the School Board of Pinellas County and three school officials as defendants. He alleged that an assistant principal made an illegal search of his car while it was parked on school premises and that he was wrongfully suspended from regular classes for five days. Contending that the search and subsequent suspension violated rights under the Fourth and Fourteenth Amendments of the Federal Constitution and under similar provisions of the State Constitution, he prayed for damages and an order expunging any reference to the suspension from the school records. Defendants filed a motion to dismiss on various grounds, including failure to exhaust state administrative remedies.[2] The school board also contended that the court was without jurisdiction to hear the federal claims — but not the state claims — because the Florida waiver-of-sovereign-immunity statute did not extend to claims based on App. 13-14. The Circuit Court dismissed the complaint with prejudice, citing a state case requiring state-law challenges to be first presented to the District Court of Appeal and the Florida Supreme Court decision in App. 19. The District Court of Appeal for the Second District affirmed the dismissal of petitioner's 1983 claim against the *360 school board.[3] It held that the availability of sovereign immunity in a 1983 action brought in state court is a matter of state law, and that Florida's statutory waiver of sovereign immunity did not apply to 1983 cases. The court rejected the argument that whether a State has maintained its sovereign immunity from a 1983 suit in its state courts is a question of federal law. It wrote: "[W]hen a section 1983 action is brought in state court, the sole question to be decided on the basis of state law is whether the state has waived its common law sovereign immunity to the extent necessary to allow a section 1983 action in state court. Hill holds that Florida has not so waived

Justice Stevens

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Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

state court. Hill holds that Florida has not so waived its sovereign immunity. We therefore do not reach appellant's second issue in this case, i. e., whether under federal law a Florida school board is immune from a section 1983 law. There is no question under Florida law that agencies of the state, including school boards and municipalities, are the beneficiaries of sovereign immunity." The Court of Appeal acknowledged our holding in that a State cannot immunize an official from liability for injuries compensable under federal law. It held, however, that under Hill a State's invocation of a "state common law immunity from the use of its courts for suits against the state in those state courts" raised "purely a question of state law." 537 So. 2d, at The Florida Supreme Court denied review. In view of the importance of the question decided by the Court of Appeal, we granted certiorari. *361 II The question in this case stems from the Florida Supreme Court's decision in the Hill case. In that case, the plaintiff sought damages for common-law negligence and false imprisonment and violations of his constitutional rights under 1983 from the Florida Department of Corrections for the conduct of one of its probation supervisors. Hill argued that the department was a "person" under 1983, that it was responsible for the actions of its supervisor, and that it was subject to suit in the Circuit Court pursuant to the Florida waiver of sovereign immunity. Fla. Stat. 768.28[4] That statute provides that the State and its subdivisions, including municipalities and school boards, 768.28(2), are subject to suit in circuit court for tort claims "in the same manner and to the same extent as a private individual under like circumstances," 768.28(5).[5] Although the terms of the waiver *362 could be read narrowly to restrict liability to claims against the State in its proprietary capacity, the Florida courts have rejected that interpretation.[6] In 16 cases arising under Florida statutory and common law, the State Supreme Court has held that the State may be sued in respondent superior for the violation of nondiscretionary duties in the exercise of governmental authority. The Florida courts thus have entertained suits against state agencies for the violation of nondiscretionary duties committed in the performance of various governmental activities, including the roadside stop and arrest of an individual driving with an expired inspection sticker,[7] the negligent maintenance by city employees of a *363 storm sewer system,[8] the failure of a state caseworker to detect and prevent child abuse,[9] the negligent maintenance of county swimming pools and failure to warn

Justice Stevens

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Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

negligent maintenance of county swimming pools and failure to warn or correct known dangerous conditions,[10] and the failure to protect a prison inmate from other inmates known to be dangerous.[11] Hill argued *364 that just as the State could be joined in an action for the violation of established state common-law or statutory duties, it was also subject to suit for violations of its nondiscretionary duty not to violate the Constitution. See The trial court dismissed Hill's 1983 claim but entered judgment on the jury's verdict in his favor on the common-law claims. On appeal, the District Court of Appeal affirmed the dismissal of the 1983 claim and reversed the judgment on the common-law claim. It also certified to the Florida Supreme Court the question whether Florida's statutory waiver of sovereign immunity permitted suits against the State and its agencies under Department of The State Supreme Court answered that question in the negative. cert. denied, Without citing any of its own sovereign immunity cases and relying solely on analogy to the Eleventh Amendment and decisions of the courts of other States, the State Supreme Court held that the Florida statute conferred a blanket immunity on governmental entities from federal civil rights actions under It stated: "While Florida is at liberty to waive its immunity from section 1983 actions, it has not done so. The recovery ceilings in section 768.28 were intended to waive sovereign immunity for state tort actions, not federal civil rights actions commenced under section " The court thus affirmed the dismissal of the 1983 claim but reversed the Court of Appeal's judgment on *365 the common-law claim and allowed the judgment for Hill on that claim to stand. On its facts, the disposition of the Hill case would appear to be unexceptional. The defendant in Hill was a state agency protected from suit in a federal court by the Eleventh Amendment. See ( 1983 does not "override the traditional sovereign immunity of the States").[12] As we held last Term in an entity with Eleventh Amendment immunity is not a "person" within the meaning of The anomaly identified by the State Supreme Court, and by the various state courts which it cited,[13] that a State might be forced to entertain in its own courts suits from which it was immune in federal court, is thus fully met by our decision in establishes that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under 1983 in either federal court or state court. The language and reasoning of the State

Justice Stevens

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Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

or state court. The language and reasoning of the State Supreme Court, if not its precise holding, however, went further. That further step was completed by the District Court of Appeal in this case. As that court construed the law, Florida has extended *366 absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under 1983 in federal court. That holding raises the concern that the state court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which we review de novo. See ; 466 U.S. ; ; ; ; ; Hill, The Inadequate State Ground, Whether the constitutional rights asserted by petitioner were " `given due recognition by the [Court of Appeal] is a question as to which the [petitioner is] entitled to invoke our judgment, and this [he has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support.' "[14] *367 III Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws "the supreme Law of the Land," and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. "The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent." ; see Minneapolis & St. Louis R. 2 ("[T]he governments and courts of both the Nation and the several States [are not] strange or foreign to each other in the broad sense

Justice Stevens

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Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

strange or foreign to each other in the broad sense of that word, but [are] all courts of a common country, all within the orbit of their lawful authority being charged with the duty to safeguard and enforce the right of every citizen without reference to the *368 particular exercise of governmental power from which the right may have arisen, if only the authority to enforce such right comes generally within the scope of the jurisdiction conferred by the government creating them"); The Relations Between State and Federal Law, ; see also 493 U.S.[15] As Alexander Hamilton expressed the principle in a classic passage: "[I]n every case in which they were not expressly excluded by the future acts of the national legislature, [state courts] will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. *369 Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited." The Federalist No. 82, p. 132 (emphasis added). Three corollaries follow from the proposition that "federal" law is part of the "Law of the Land" in the State: 1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of "valid excuse."[16] "The existence *370 of the jurisdiction creates an implication of duty to exercise it." 3 U.S. 1, ; see ; Missouri ex rel. St. Louis, B. & M. R. ;[17] *371 2. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. "The suggestion that the act of Congress is not in harmony with the policy of the

Justice Stevens

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Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of [the State] as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State." Mondou, 3 U. S., ; see ; ; Minneapolis & St. Louis R. ; cf. (State may not discriminate against federal causes of action). 3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. ; Georgia Rail Road & Banking ; ; The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, "bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them." ; see also Southland ; The States thus have great latitude to establish the structure and jurisdiction of their own courts. See 101 U.S. In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law. See ; These principles are fundamental to a system of federalism in which the state courts share responsibility for the application *373 and enforcement of federal law. In Mondou, for example, we held that rights under the Federal Employers' Liability Act (FELA) "may be enforced, as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion." 3 U.S., at 59. The Connecticut courts had declined cognizance of FELA actions because the policy of the federal Act was "not in accord with the policy of the State," and it was "inconvenient and confusing" to apply federal law. We noted, as a matter of some significance, that Congress had not attempted "to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of