The Rights of Man
Human rights are natural rights, which are universal and inviolable. (PT ¶ 9)
In part I of the encyclical, Pope John lists a set of those rights in considerable detail. They include:
Notice that the Pope’s outline of basic human rights includes both negative rights and positive rights. (I have elsewhere expressed a certain skepticism about positive rights, but that discussion is for another time.)
Unlike many accounts of human rights, Pope John explicitly links those rights to corresponding duties:
Thus, for example, the right to live involves the duty to preserve one's life; the right to a decent standard of living, the duty to live in a becoming fashion; the right to be free to seek out the truth, the duty to devote oneself to an ever deeper and wider search for it. (PT ¶ 29)
Human dignity thus encompasses both the right to “act freely” and the duty to do so “responsibly.” (PT ¶ 34)
Pope John concludes the first part of the encyclical with a number of observations about the state of the world as it then was:
The Individual and the State
Part II of Pacem in Terris accepts the legitimacy of the state but insists that the state derives its authority from God. (PT ¶ 45)
We must … reject the view that the will of the individual or the group is the primary and only source of a citizen's rights and duties, and of the binding force of political constitutions and the government's authority. (PT ¶ 78)
Which raises the questions: What happens when a state embraces secularism as a key ordering principle? What happens when the majority of citizens reject religion and embrace secularism?
As with Mater et Magistra, Pacem in Terris embraces the “both/and” of subsidiarity and solidarity. Individuals and “intermediate groups” are rightfully free but they also have a duty to contribute to the common welfare. (PT ¶ 53) We see this again in Part IV of the encyclical, which deals with international relations, where Pope John wrote:
The same principle of subsidiarity which governs the relations between public authorities and individuals, families and intermediate societies in a single State, must also apply to the relations between the public authority of the world community and the public authorities of each political community. (PT ¶ 140)
For those of us who are lawyers, the three paragraphs (¶¶ 70-72) dealing with the social role of the law are especially pertinent (if a tad cryptic):
There can be no doubt that a State juridical system which conforms to the principles of justice and rightness, and corresponds to the degree of civic maturity evinced by the State in question, is highly conducive to the attainment of the common good.
And yet social life is so complex, varied and active in this modern age, that even a juridical system which has been established with great prudence and foresight often seems inadequate to the need.
Moreover, the relations of citizens with each other, of citizens and intermediate groups with public authorities, and the relations between public authorities of the same State, are sometimes seen to be of so ambiguous and explosive a nature, that they are not susceptible of being regulated by any hard and fast system of laws.
In such cases, if the authorities want to preserve the State's juridical system intact—in itself and in its application to specific cases—and if they want to minister to the principal needs of society, adapt the laws to the conditions of modern life and seek solutions to new problems, then it is essential that they have a clear idea of the nature and limits of their own legitimate spheres of action. Their calmness, integrity, clear sightedness and perseverance must be such that they will recognize at once what is needed in a given situation, and act with promptness and efficiency.
Relations Between States
Part III turns to inter-state relations. At the outset, there is a clear rejection of the ideologies that underlay colonialism: “Truth calls for the elimination of every trace of racial discrimination, and the consequent recognition of the inviolable principle that all States are by nature equal in dignity. Each of them accordingly has the right to exist, to develop, and to possess the necessary means and accept a primary responsibility for its own development.” (PT ¶ 86) The following paragraphs tick off in detail why the various justifications invoked by colonialists have no grounding in morality or natural law.
The then-recent experience of World War II is obvious in several portions of this section, including:
Finally, Pope John takes note of the fundamental change effected by the development and use of nuclear weapons. (PT ¶¶ 126-29) Nuclear weapons should be banned, as should testing of those weapons. (PT ¶¶ 111-12) The potential for catastrophic destruction called into question the whole concept of just war.
The World Community
The fourth part of Pacem in Terrisdeals with the then-new United Nations and, more broadly, the world community. Pope John argues that no single nation can provide the common good universally, instead it must be joint effort of the entire world community. (PT ¶¶ 132-35)
The closing part of Pacem in Terrisconsists of series of exhortations directed mainly at the laity. The Pope encourages participation in public life. (PT ¶ 146) In passing, one wonders what Pope John would have made of The Benedict Option?
Ecumenism was a principal concern of Pope John throughout his papacy, so it is not surprising that he devoted considerable attention to the relations between Catholics and non-Catholics in achieving social justice.
Am I the only one who thinks that Delaware judicial opinions have gotten way too long?
Vice Chancellor Travis Laster's recent opinion in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018), is a whopping 246 pages long. People have written world renowned novels in less than 246 pages!
I blame Chief Justice Leo Strine, of course, who has admitted that "My opinions are too long." But why does the rest of the Delaware bench have to copy his lead?
Back in the day, Judge Richard Posner cogently recommended that judges avoid writing opinions that are “too long,” “are burdened with too many citations,” and “tend to ramble instead of clearly defining and discussing issues,” while also recommending that they use "good, plain words and sentences that communicate rather than befuddle.” Richard A. Posner, Judges' Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421, 1422 (1995).
Even further back in the day, a Mississippi jurist put it even better:
The writer takes occasion (as deliberate dicta) to say that the law reports are being rapidly filled with valueless opinions, the printing of which is not only costly, but members of the bar find it a growing and tedious task to search the books to find out the rule in any given case. The facts of a case therefore should not be stated at length, unless absolutely necessary; nor should the opinion in any case be longer than that actually required to impart to the reader the exact question involved and decided.
It is to be hoped that useless and lengthy opinions by the courts, and voluminous and valueless briefs by the attorneys, which involve so much unnecessary work on the part of both the bench and bar, will become a thing of the past.
Wilson v. State, 113 So. 445, 445 (Miss. 1927). Sadly, we are still hoping for that happy outcome.
Finally, going even further back in the days of yore, we find a 1911 Yale Law Journal article expounding on what seems to be a perpetual problem:
As to the length of reported judicial opinions, what do duty or expediency demand? Are we burdened with too long statements and opinions and, if so, can they be shortened and how?
Senator Root of New York, who might be considered an authority, has practically answered these questions in a recent address, as its president, to the New York State Bar Association.
"The mass of judicial reports," he said, in part, "has grown so great that it begins to seem as if before long we shall have to burn our books like the Romans and begin anew. And indeed, where decisions can be found in support of every side of every proposition, authority is in a great measure destrdyed and we do begin anew in determining by the light of reason which authority shall be followed. I wish that our judges could realize officially what so many of them agree to personally--that restating settled law in new forms, however well it is done, complicates rather than simplifies the administration of the law, that the briefest of opinions usually answers the purpose of the particular case; and that the general interests of jurisprudence justify reasoned opinions only when some question of law is determined which has not been determined before by equal authority. On every side the increased complication of life calls for vigorous and determined effort to make the working of our governmental system more simple."
Senator Root has suggested the evil, generally recognized; and the remedy, brief opinions.
A message Delaware jurists ought to take to heart.
Bainbridge, Stephen M., Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies. UCLA School of Law, Public Law Research Paper No. 18-32. Available at SSRN: https://ssrn.com/abstract=3249236
This year I'm again teaching a seminar at UCLAW on "Catholic Social Thought, the Law, and Public Policy." Here's the course description:
In contemporary American culture there is a widespread assumption that religion is something private, something one does with one's leisure time, and that it ought not to affect the way one acts in the public square or market place. Catholic social teaching, however, explicitly claims a place in the public square. As the National Conference of Catholic Bishops explained in their Pastoral Letter on Catholic Social Teaching and the U.S. Economy (1986), they wrote that letter not merely to instruct the faithful but also “to add our voice to the public debate” over economic justice. Likewise, many Papal encyclicals are not mere theological documents, but also serve as position paper addressed to policymakers.
Catholic social thought is particularly relevant to law and the practice of law. As Avery Cardinal Dulles observed, law “cannot be adequately taught without reference to the purposes of society and the nature of justice, which law is intended to serve.” In turn, as he also argued, “the role of law and its place in a well-ordered society has been studied in depth for many centuries in Catholic social theory.” Accordingly, the premise of this seminar is that whether one is a follower of Catholicism, some other religion, or no religion, Catholic social thought provides important insights for making and practicing law.
Students of all religions—or of no religion—are invited and welcome to engage with the material respectfully, thoughtfully, and critically.
The course will focus on the primary documents of Catholic social thought, principally Papal Encyclicals, rather than secondary sources. The goal is for students to directly engage the source material.
We're using Catholic Social Thought: Encyclicals and Documents from Pope Leo XIII to Pope Francis as our text. It's a solid collection of the primary documents with a modest amount of helpful commentary to contextualize the readings.
Why have I structured the seminar this way?
There are three ways of studying Catholic Social Thought (CST), a.k.a. Catholic Social Teaching. First, we might approach it thematically, by which I mean emphasizing the major themes that run through the entire body of encyclicals and other documents that make up CST’s corpus. Scholars have identified seven such major themes or principles:
Second, we might seek to operationalize CST by focusing on how it speaks to specific issues. The Compendium of the Social Doctrine of the Church takes this approach, expounding the social doctrine across numerous distinct issues of modern life.
Third, we might directly engage the primary documents, especially the critical papal encyclical. This is the approach I’ve chosen. The other approaches are useful, but only if you have a foundation on which to build them. Attempting them without first knowing the foundational documents would be like trying to decide constitutional law questions without ever having read the Constitution. Put another way, focusing on the primary documents gives us a perspective that has not been filtered through someone else’s biases and priorities.
Another important reason for focusing on primary documents is that CST rarely offers specific policy proposals. Instead, it offers broad principles and precepts, which often prove to be blunt instruments when making fine legal or policy distinctions. If you ask, “should the law require corporate disclosure quarterly or semi-annually,” CST will give you only broad statements about the economy in reply. But broad principles laid out in the primary documents do provide a moral and ethical foundation upon which to build. Put another way, a house built on sand will not stand. Before you can do high level reasoning you must have a firm foundation on which to build.
I'll be posting about this course a lot, so I have set up a new posts category CST & The Law Seminar. I hope you'll find them of interest.
Crux reports that:
The Vatican announced on Thursday Pope Francis approved changes to the compendium of Catholic teaching published under Pope John Paul II.
“The death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” reads the Catechism of the Catholic Church now on the death penalty, with the addition that the Church “works with determination for its abolition worldwide.”
This is a departure from what the document, approved under Pope John Paul II in 1992, says on the matter: “Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.”
According to Prefect of the Congregation for the Doctrine of the Faith, Spanish Cardinal Luis Ladaria:
... the new formulation of the Catechism expresses “an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium.”
He then explains that previous Church teaching with regards to the death penalty can be explained in a social context in which the penal sanctions were understood differently, and “had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.”
That statement is obviously in tension with itself--one might even say embarrassingly so--how can a change in doctrine to reflect changed social contexts not be in contradiction with the old doctrine? It's also insupportable. In Avery Cardinal Dulles' April 2001 First Things article Catholicism & Capital Punishment, he laid out a careful and nuanced analysis of the Magisterium, in which he concludes that although the death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment:
The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so. ...
The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.
As they say, go read the whole thing.
As far as the death penalty itself goes, I am not troubled by the Church's change in doctrine. I've long been skeptical of the death penalty. It's the broader principle that worries me.
This sudden and dramatic shift calls to mind the debate over Judge John T. Noonan’s book A Church that Can and Cannot Change: The Development of Catholic Moral Teaching. According to Wikipedia:
“John Thomas Noonan, Jr. (born October 24, 1926) is a Senior United States federal judge on the United States Court of Appeals for the Ninth Circuit, with chambers in San Francisco, California. … Noonan was the 1984 recipient of the Laetare Medal, awarded annually since 1883 by Notre Dame University in recognition of outstanding service to the Roman Catholic Church through a distinctively Catholic contribution in the recipient's profession. Noonan has served as a consultant for several agencies in the Catholic Church, including Pope Paul VI’s Commission on Problems of the Family, and the U.S. Catholic Conference’s committees on moral values, law and public policy, law and life issues. He also has been director of the National Right to Life Committee.”
There is no doubt that Noonan is a brilliant lawyer and a devout Catholic. Yet, his view of Church history has been controversial. In its review of Noonan’s book, the NY Times wrote:
“Noonan drives home the point that some Catholic moral doctrines have changed radically. History, he concludes, does not support the comforting notion that the church simply elaborates on or expands previous teachings without contradicting them.”
In contrast, Avery Cardinal Dulles warned in a review of Noonan’s book published in First Things “that Noonan manipulates the evidence to make it seem to favor his own preconceived conclusions. For some reason, he is intent on finding ‘discontinuity’ but he fails to establish that the Church has reversed her teaching in any of the four areas he examines.”
It's sad that we can't have Noonan and Dulles square off over the death penalty. Is this really a reversal or just an evolution?
But it seems to me that Noonan's thesis just got a shot in the arm from Cardinal Ladaria's statement that "previous Church teaching with regards to [fill in the blank] can be explained in a social context in which [fill in the blank was] understood differently."
Is it really so hard to imagine Pope Francis (or his successor) announcing that "previous Church teaching with regards to divorce can be explained in a social context in which marriage was understood differently"? Or "previous Church teaching with regards to sexuality can be explained in a social context in which sexuality was understood differently"? Or "previous Church teaching with regards to abortion can be explained in a social context in which fetal development was understood differently"?
One hopes Pope Francis explains in detail his views on the evolution of church teaching.
New Research Handbook on Fiduciary Law https://t.co/uksslmWI1R. Edited by @BYULawSchool Dean @professor_smith & @DePaulLaw's Andrew S. Gold, with chapters by leading experts that shed new light on this rapidly growing field of study. Read free chapters: https://t.co/t7Mdnttz2V pic.twitter.com/hesaGA2Mb4— Elgar Law (@Elgar_Law) May 21, 2018
FYI: MY essay on The Parable of the Talents is one of the chapters. Amazon link:
Research Handbook on Fiduciary Law edited by D. Gordon Smith and Andrew S. Gold available for a whopping $290.00 https://t.co/BBdFG2QBA3 But what else are you going to spend your expense account on?— Professor Bainbridge (@ProfBainbridge) May 21, 2018
At Law & Liberty poll sci professor James Rogers tackles the titular question, pointing out:
Simple, or naïve, attitudinalism posits Supreme Court justices vote their policy preferences in each specific case they decide. Yet if justices indeed pursue policy outcomes in their decisions, the belief that justices vote their policy preferences in each specific case makes no sense. Justices who seek to maximize achievement of their substantive policy preferences in their judicial decisions will not necessarily vote for the substantive outcome they prefer in a particular case.
In recent years the U.S. Supreme Court hears about 80 cases per term. The actual legal decision in these few cases binds only the specific parties to the dispute. While some cases are more significant than others, that’s still not necessarily a huge amount of political influence relative to the influence the precedent will have on scores, or even hundreds, of related cases that are not heard by the Supreme Court. Even thinking of actual cases ignores the policy impact Supreme Court precedents can have: Precedent influences not only actual cases, but affects behavior that never rises to the level of litigation. Competent legal counsel can advise clients in light of the precedent to behave in a way that leaves them without risk of litigation.
This broader policy impact of precedent can swamp the policy impact of resolving a legal dispute between the two litigants in a case actually before the Court.
As longtime readers may recall, Mitu Gulati and I did on this issue a while back. See Stephen M. Bainbridge & G. Mitu Gulati, How Do Judges Maximize? (The Same Way Everybody Else Does—Boundedly): Rules of Thumb in Securities Fraud Opinions, 51 Emory L.J. 83 (2002).
Our work suggests that Rogers' account of judicial incentives is incomplete because he makes two moves common to the debate over how judges decide cases. First, he focuses on the Supreme Court, despite the fact that that court decides an infinitesimally small amount of American law. In addition, he focuses on Supreme Court cases that have partisan policy implications, which make up an even smaller fraction of judicial work. In a typical Supreme Court term, "approximately 80 percent of votes are in support of the majority opinion, and only about 20 percent of cases are determined narrowly. The 5–4 cases that get national attention are in fact somewhat anomalous." A small sample of anomalous cases is not going to tell us much about how judges in general maximize. (And notice that Roger's post is titled :How Judges Maximize" not "How Supreme Court Justices maximize in the small percentage of their cases that have closely divided partisan policy implications." There is at least the suggestion that his analysis had broad application.)
Second, Rogers implicitly invokes the two basic modes of judicial decision making, which we identified as the Herculean model in which the judge has full information and full knowledge and, generally speaking, gets it right; and (b) the Wannabe model, in which the judge seeks to be Herculean, but errs because he or she is mortal. Two sub-variants of each model depend on what the scholar in question believes that judges seek to maximize: social welfare or personal policy preferences.
Gulati and I pointed out that these accounts fail to account for the fact that judges are agents with incentives to shirk in a variety of ways. We began "by assuming a nonexpert federal judge faced with an overwhelming caseload and limited time and resources with which to decide those cases. We add[ed] the assumption that most judges do not find securities law interesting. From these institutional characteristics, we infer[ed] an explanation for the development and popularity of the heuristics premised on limited cognitive capabilities, resource constraints, and a judicial desire to move cases off the docket in an acceptable fashion."
Instead of leaving [determinations of materiality and intent] for trial, as we show herein, judges are using substantive heuristics to dispose of securities cases at the motion to dismiss stage. In contrast to prior commentary, however, we argue this result reflects not a pro-defendant bias but rather institutional constraints that give judges incentives to eliminate securities cases from their dockets with minimal effort.
Second, our focus on substantive heuristics highlights a previously unobserved link between institutional constraints and the evolution of substantive doctrine. When judges invoke procedural heuristics that enable them to avoid tackling a substantive issue, there is no effect on the evolution of substantive law (except that no law is created). When judges invoke substantive heuristics, however, the use of such heuristics channels and even dominates the on-going evolutionary processes of the (quasi-common) law of securities regulation. As we demonstrate, for example, the development of substantive securities law heuristics has dramatically affected the evolution of the law on both materiality and scienter. At the same time, however, other issues, such as the scope of different duties to disclose, are largely ignored (except perhaps to say why they were not deserving of attention).
Importantly, this is true even at the Supreme Court level.
There is general agreement that the Supreme Court has not done a very good job in the securities area, especially in recent years. Scholars operating in a wide range of paradigms have criticized the court’s recent securities opinions. Supreme Court securities law decisions typically lack a broad, consistent understanding of the relevant public policy considerations. Worse yet, they frequently lack such basics as doctrinal coherence and fidelity to prior opinions.
Why doesn’t the Supreme Court do a better job in securities cases? Our model offers an answer. When deciding securities cases, the Court is faced with hard, dry, and highly technical issues. Supreme Court justices and their clerks arrive on the court with little expertise in securities law. One reasonably assumes that neither the justices nor their clerks have much interest developing substantial institutional expertise in this area after they arrive. (Former Justice Powell being the exception that proves these rules.) Accordingly, it would be surprising if the Court’s securities opinions exhibited anything remotely resembling expert craftsmanship.
Under such conditions, we would expect the justices to take securities cases rarely, typically when there is a serious circuit split, which is in fact what we observe. When obliged to take a securities issue, the Court will seek to minimize the amount of effort required to render a decision. This observation is not intended pejoratively. To the contrary, in terms of our model, the justices are acting rationally. …
Bounded rationality implies that Supreme Court justices (and their clerks) have a limited ability to master legal information, including the myriad complexities of doctrine and policy in the host of areas annually presented to the court. Specialization is a rational response to bounded rationality—the expert in a field makes the most of his limited capacity to absorb and master information by limiting the amount of information that must be processed by limiting the breadth of the field in which he develops expertise. Supreme Court justices will therefore need to specialize, just as experts in other fields must do. Specializing in securities law would not be rational. The psychic rewards of being a justice—present day celebrity and historical fame—are associated with decisions on great constitutional issues, not the minutiae of securities regulation.
The debate over judicial incentives is important. The overemphasis on 5-4 Supreme Court decisions in that debate, however, means that the vast majority of both the academic and public debate--including the colloquy between Rogers and McGinnis--grossly distorts the real picture of how (and what) judges maximize.
Interesting new paper:
What can the history of satanic imagery in law and literature teach us about the development of humanity’s understanding of its relationship with evil? This wide-ranging account of Satan’s presence across textual mediums uncovers the secret genealogy of contracts with Satan, from the Gospel of Matthew to Mayo v. Satan and His Staff (1971). This ironic lineage recounts how a Christian clergyman was the first to consummate a contract with Satan, how Martin Luther was the first to link Johann Faust to Satan, and how the poet who inspired Charlie Daniel’s “The Devil Went Down to Georgia” was the first to imagine an attorney litigating against Satan. Yet, these ironies are not so significant as the moral innovations that each stage in the evolution of the diabolical contract motif represents.
Mignanelli, Nicholas, Is Satan a Transactions Attorney? An Account of Satanic Imagery in Law and Literature (April 10, 2018). University of Miami Legal Studies Research Paper No. 18-16. Available at SSRN: https://ssrn.com/abstract=3160397
Danny sent along this note:
This is a clip from part of an interview that I did at the ABA Antitrust Spring Meeting two weeks ago: https://mobile.twitter.com/PaRRGlobal/status/986306213854969856/video/1. I discussed 5,000 of regulation of competition from Moses at Mt. Sinai to the present (with acknowledgement of the anti-monopoly provision of the Mexican constitution of 1857). The clip includes some of religious antecedents of the Sherman Act.
Always glad to see somebody deploying CST to study the law:
Professor Cassidy examines the criminal justice reform movement in the United States through the lens of Catholic social thought. In particular, he focuses on God’s gift of redemption and the Gospels’ directives that we love one another and show mercy toward the poor, the oppressed and the imprisoned. Cassidy then examines the implications of these fundamental Catholic teachings for the modern debate about the death penalty, sentencing reform, prisoner reentry and parole.
Cassidy, R. Michael, Catholic Social Thought and Criminal Justice Reform (April 3, 2018). Journal of Catholic Social Thought, Forthcoming; Boston College Law School Legal Studies Research Paper No. 476. Available at SSRN: https://ssrn.com/abstract=3155413
Interesting set of new papers from John Witte:
JOHN WITTE, Emory University School of Law
The Lutheran Reformation revolutionized both church and state, theology and law. This brief essay sketches the legal influence of the Reformation, building on Luther’s opening call for religious freedom and his more complex theory of the two kingdoms.
in Oxford Research Encyclopedia of Religion (March, 2017)
JOHN WITTE, Emory University School of Law
The Lutheran reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church, state, and society on the strength of Luther’s new theology. These legal reforms were defined and defended in hundreds of monographs, pamphlets, and sermons published by Lutheran writers from the 1520s to 1550s. They were refined and routinized in hundreds of new reformation ordinances promulgated by German cities, duchies, and territories that converted to the Lutheran cause. By the time of the Peace of Augsburg (1555)--the imperial law that temporarily settled the constitutional order of Germany--the Lutheran Reformation had brought fundamental changes to theology and law, to church and state, marriage and family, education and charity.
Critics of the day, and a steady stream of theologians and historians ever since, have seen this legal phase of the Reformation as a corruption of Luther’s original message of Christian freedom from the strictures of human laws and traditions. But Luther ultimately realized that he needed the law to stabilize and enforce the new Protestant teachings. Radical theological reforms had made possible fundamental legal reforms. Fundamental legal reforms, in turn, would make palpable radical theological reforms. In the course of the 1530s onwards, the Lutheran Reformation became in its essence both a theological and a legal reform movement. It struck new balances between law and Gospel, rule and equity, order and faith, structure and spirit.
"Luther the Lawyer: the Lutheran Reformation of Law, Politics, and Society"
in Law and Justice: A Christian Law Review 178 (2017): 6-36
JOHN WITTE, Emory University School of Law
The Lutheran Reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church, state, and society on the strength of the new Protestant theology. These legal reforms were defined and defended in hundreds of monographs, pamphlets, and sermons published by Luther and his many followers from the 1520s onward. They were refined and routinized in hundreds of new reformation ordinances promulgated by German polities that converted to the Lutheran cause. By the time of the Peace of Augsburg (1555)--the imperial law that temporarily settled the constitutional order of Germany--the Lutheran Reformation had brought fundamental changes to theology and law, to church and state, marriage and family, education and charity.
Like a B-movie franchise villain who keeps coming back, 18 U.S.C. § 1001 -- the prosecutor's best friend -- has once again reared its ugly head. If it is true that a prosecutor can get a grand jury to indict a ham sandwich, it seems to also be true that a prosecutor can get a ham sandwich to violate 18 U.S.C. § 1001.
The statute provides that:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
Lawfare reports that:
George Papadopoulos, a former Trump campaign policy adviser, pleaded guilty to making material false statements and omissions in an interview with FBI agents, in violation of 18 U.S.C. § 1001.
According to documents released on Oct. 30, 2017, in an interview conducted as part of Special Counsel Robert Mueller’s investigation into Russian election interference, Papadopoulos misrepresented the timing of conversations with an individual known to be substantially connected to Russian government officials, his knowledge of the individual’s Russian connections and the nature of his interactions with a female Russian national. ...
In a plea agreement filed on Oct. 5, 2017, Papadopoulos pleaded guilty to violating 18 U.S.C. § 1001(a)(2) by making materially false, fictitious or fraudulent statements to the FBI. 18 U.S.C. § 1001 carries a maximum sentence of five years’ imprisonment, a $250,000 fine and three years of supervised release. Since he has accepted responsibility and has no criminal history, the government recommended between zero to six months’ imprisonment and a fine between $500 and $9,500.
I last had occasion to ponder § 1001 back during the Martha Stewart insider trading case. Back then I wrote:
According to published reports, the U.S. Attorney decided going after Stewart would be an “unprecedented” expansion of insider trading law. Instead, the Feds indicted her, inter alia, over her denials that she committed insider trading. At worst, however, Martha lied about doing something that isn't illegal. I still don't get why that should be criminal. ...
Tung Yin of the Yin Blog has a very interesting post providing a good deal of detail on the legal merits of the obstruction of justice charge. I don't dispute his assessment that what Martha did could be criminal (in a hyper-technical sense, IMHO), but I still don't get why it is criminal as a matter of sound public policy or, especially, why as a prudential matter a prosectutor should have brought Count 9. I agree entirely with the first reader's assessment that it is unfair to let the government fling allegations, which they end up deciding not to charge somebody with, and then let the government prosecute that person for having denied the allegations the government decided it couldn't prove. Why isn't that just whacked?
Turning to the obstruction counts, however, I'm also skeptical of them as a prudential matter. It also seems to me that aggressive prosecutorial use of 18 U.S.C. sec. 1001 undercuts the requirement that the government prove guilt beyond a reasonable doubt. Granted the 5th amendment only gives you a right to remain silent, but shouldn't you be allowed to tell the cops "I didn't do it" without getting hauled up on charges later -- especially if they end up deciding not to charge you with the underlying crime? I mean, I can't tell you the number of times I've told a cop I didn't see the stop sign. [Ed: After reading Prof. Yin's helpful follow-up post, I added the underlined sentence for further clarification.]
I should note that Prof. Yin, to say the least, seems receptive to the prudential component of my argument:
Now, all that's left is to wonder, should the alleged lie in the actual case with the actual circumstances be a crime? And if so, is it really worth prosecuting? That's a totally different question, and certainly I can see arguments to be made that Stewart's alleged false statement really isn't worth the government's attention and time -- but for her celebrity status.
Exactly, if the defendant wasn't Martha Stewart (and if we hadn't already had Enron and so on), this case never happens. My friend Tom Smith makes this point quite pithily:
Steve Bainbridge is right on about Martha Stewart. He is perhaps too polite to add, however, that the ill-defined insider trading laws are perfect tools for ambitious prosecutors who want to go on scalp-hunting expeditions. Is Martha the most egregious insider trader in Manhattan these days? Hardly. But she is a high profile celeb with a reportedly obnoxious personality that the press would love to see fall. The Bonfire of the Vanities with the feds roasting their marshmellows on the flames.
Harsh, but true.
As with Stewart, the government -- or, to be more precise, an essentially unaccountable special prosecutor with ties to potential targets of the investigation (James Comes and the FBI) and a staff full of partisans many of whom finance and presumably vote for Democrats, including Hillary Clinton -- decided not to charge Papadopoulos with a criminal offense. Instead, they got him on obstruction.
Which brings me back to something I also wrote about the Stewart case:
Eric Rasmusen makes a good point about the Stewart conviction's likely effect on future government investigations:
My advice is to refuse to cooperate with any federal investigation, however peripheral and safe you might seem and even if you are sure no crime has been committed. Make them come back with a subpoena and make sure you have your lawyer on hand, and so forth.
This points to a law-and-economics reason for repealing the [false statements] law: the law's effect is to hinder investigations. The police should want to encourage people to talk to them, not discourage them. In fact, ordinarily I bet it is more useful to the police to have someone tell them lies than to have the person keep quiet. Police are expert in sifting through lies and half-truths, but nobody can extract information from silence motivated by fear that talking will get the speaker in trouble regardless of whether he committed any other crimes.
My friend and colleague Eugene Volokh uses Rasmusen's post as a jumping off point for these observations:
Cases such as Martha Stewart's may discourage people (even innocent people) from talking to federal authorities at all, because they might fear that some error on their part may be characterized as a lie, and might thus mean criminal punishment. In some cases (though not in all), the person may conclude that the better course is just to say nothing. That may already often happen to witnesses who are themselves being investigated for a crime, since they are often advised to say nothing in any event. But 18 USC sec. 1001 risks also discouraging cooperation by people who are just seen as witnesses.
It's hard to tell just how serious a problem this might be, and 18 USC sec. 1001 does indeed have potentially beneficial effects, too, since it may often encourage witnesses to tell the truth. But it's worth recognizing that the law can also encourage witnesses to say as little as possible, an "anticooperative effect" that might undermine the law's beneficial effect. I discuss this general problem in my Duties to Rescue and the Anticooperative Effects of Law - but as Rasmusen and Frissell point out, the problem extends far beyond just duties to rescue.
The WSJ ($) makes much the same set of points, as well:
Maybe there's some rough justice in putting Miss Stewart in an orange jumpsuit for fibbing about the circumstances of that sale with her broker. Manifestly the jury thought so. But in a case ostensibly brought on behalf of sticking up for the forgotten "little guy," we'd like to think prosecutors might have weighed the price paid by the truly innocent here: all the Martha Stewart Living shareholders, employees, executives, and so forth whose livelihoods have suffered tremendously since this case first broke into the headlines and whose futures, like their company, are now in limbo. And it's not just Miss Stewart's company: Kmart, a big buyer of Martha's products, is going to take a hit too.
We also have doubts about what "message" this conviction really does send about lying. In hindsight we can now see that had Miss Stewart said absolutely nothing at all when investigators came calling, she would not be facing jail time today. Our guess is that the corporate defense lawyers are a more reliable guide about the message of this prosecution, and right now they're pretty much all agreed that the real lesson here is to zip up completely when the FBI starts calling. Hard to see how this is a big victory for transparency.
Finally, we come to a point we've stressed before: the absence of an underlying crime. Most of the charges against Miss Stewart were brought under Title 18, Section 1001 of the U.S. Code, which makes it a crime to lie to investigators. The dangers for overreach here should be obvious, and comments made back in 1996 by Supreme Court Justice Ruth Bader Ginsburg and recently unearthed by the New York Sun now look prophetic.
"The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the subject, asking about those acts, and receiving a false denial," Justice Ginsburg wrote in a concurring opinion in Brogan v. United States, warning against the "sweeping generality" of Section 1001's language.
In short, in the Schadenfreude afterglow of Martha Stewart's conviction we also see before us the innocent people who will pay the highest price for that prosecution, as well as a huge new incentive for CEOs to clam up next time the feds ask questions.
To all of which, I can but say "yep."
When state Insurance Commissioner Jim Brown was convicted of lying to FBI agents, I wrote that henceforth Louisiana politicos would do well to think of Brown before agreeing to talk to the feds -- and then invoke "the Jim Brown Rule."
The Jim Brown Rule is very simple: if you're a public figure in Louisiana, do not talk to the FBI.
I certainly don't advocate obstructing federal investigations, but the plain truth is that FBI agents have no legal duty to tell people the truth. On the other hand, if you're being interviewed by the FBI, you have a legal duty to tell them the truth. As Brown found out the hard way, you can go to jail if you don't.
I'm sorry, but I still find that grossly unfair and tyrannical. If this is the way Mueller starts his campaign, it does not bode well for the fairness of the outcome.