A Note from the Dean
Dear Alumni and Friends:
With polarizing forces at work in society at large and distrust in institutions at all-time highs, it is more important than ever for people to be able to gather information for themselves from unbiased, objective sources. In this environment, where does the public turn for help finding and understanding the law? The same place it has for the past twenty-five years: Cornell Law School’s very own Legal Information Institute (LII).
As the cover story of this issue of the Cornell Law Forum explains, LII remains the most widely accessed and trusted online resource for legal information. The article traces how a simple seed of an idea—publishing the law online for free—blossomed into a global free-access-to-law movement that now includes more than forty independent LIIs in dozens of countries.
Over the past quarter of a century, the LII has enabled millions of people to understand and solve problems they encounter in their personal and professional lives. It has helped lawyers to assist tens of millions of clients. It has become a critical resource for officials at all levels of government. In the last year alone, LII was visited by nearly 35 million people from 241 countries and territories. Since January, visits to the site have risen by 20-25 percent. We have noticed that traffic on LII spikes on days when dramatic decisions(or particularly provocative tweets) emerge from Washington, D.C.
The Internet was in its infancy in 1992 when LII was cofounded by Thomas Bruce and Peter Martin, the Jane M.G. Foster Professor of Law, Emeritus and former dean of the Law School. As they would describe it in the March 1994 issue of this magazine, the goal of the new institute was to “connect the full resources of the school with the legal profession, with other law schools, with the world.” The novelty of the new venture, according to Bruce and Martin, was the technology involved in making that connection: all of the publications would be electronic. And they would be available to anyone, anywhere, at no cost.
Cornell Law School has benefited greatly by serving as the home of the LII and vice versa. On the one hand, the LII has enhanced the reputation of the Law School by being the source of objective, trusted, and free legal information for hundreds of millions of people. The LII in turn receives enormous benefits from its location in a world-class law school where it can draw on the expertise of our faculty and hardworking, enthusiastic students. As we look toward the next twenty-five years, I am confident this partnership will continue to produce great things.
In addition to underscoring the value of legal information, events of the past year have also helped to highlight the unique role that lawyers fulfill in a nation built on the rule of law. On any number of the most pressing issues of the day—from judicial nominations to immigration—Cornell alumni and faculty have been at the center of the action, on all sides. And the LII has been there as well, ensuring the public has free access to reliable legal information. The legal profession—and Cornell Law School—have never been more indispensable.
Eduardo M. Peñalver
Allan R. Tessler Dean and Professor of Law
In the beginning, there was the Legal Information Institute (LII). Now, a quarter century into the online age, it’s still going strong.
Thomas R. Bruce and Peter W. Martin, the Jane M.G. Foster Professor of Law, founded the LII at Cornell Law School in 1992, the World Wide Web was in its infancy. The LII was the world’s first web destination for legal information, something like the thirtieth website of any kind, and, the LII team likes to say, “one of the very first websites having to do with any subject that wasn’t high-energy physics.”
Twenty-five years later, more than 34 million users have taken advantage of the LII’s unique collection of legal resources, making it the world’s premier nonprofit legal website. What’s known to many devotees as simply “the Cornell site” hosts primary texts including the U.S. Code, the Code of Federal Regulations (CFR), the Uniform Commercial Code, and an extensively annotated Constitution. Besides providing access to those government documents, the LII has also produced its own popular resources, such as Wex, the institute’s wiki-style community-built legal encyclopedia and dictionary.
Martin, a former dean of the Law School, and Bruce started the institute with a keen interest in exploring how emerging digital concepts like hypertext systems could be used to make the law more accessible. It was a time of enormous upheaval in the commercial legal information sector, and they thought that an academic institution focused on underserved areas like regulations and unencumbered by reams of legacy material might best be able to take advantage of the opportunities the web presented to break the law out from behind subscriptions and paywalls. “In the new environment as I saw it unfolding in the early nineties, it was possible for a law school to be an originator and creator in this world,” says Martin, who took emeritus status in 2009.
In part, the LII grew out of frustration over how law schools viewed the Internet at the time. Despite the perennial student fascination with new technology, computers were largely seen as ways to access the commercial subscription services like Westlaw and Lexis-Nexis. What computer people there were mostly were confined to IT support rather than innovating with the new tools. “The bigger idea was always that there should be a creative space within law schools to play around with this stuff,” says Bruce, the sole director of the LII since 2004. “And the question on my mind and Peter’s was, how do you make the sort of tent under which some kind of experimental activity can take place?”
Much of the LII’s technical work over the years has been aimed at convincing users to take into account the sometimes hidden complexities of the law. The way many people delve into legal issues is typified by what is known internally as Tom’s Bar-Bet Theory of the Constitution. Bruce’s theory holds that since the average American’s knowledge of civics and the legal system doesn’t reach much past the Constitution, they’ll tend to fall back on what they already know—i.e. whatever part of the Constitution seems to apply—when attempting to settle “bar bets” about complex legal questions.
The LII aims to help users to delve deeper than a surface understanding, for instance by making it easy to look up legal concepts in Wex, or by using natural language processing software to automatically link to definitions for terms in the CFR in order to warn users that there might be non-obvious or multiple meanings, depending on context. “There’s a lot of stuff we build that is not dispositive, but is more in the realm of red light, yellow light, green light flagging of things that might invite further investigation,” says Bruce.
LII Supreme Court Bulletin staff publish detailed previews of each case before the Supreme Court ahead of oral arguments. Associates pore over the mountains of often-technical briefs submitted to the high court in order to produce précis of each side’s contentions and the legal questions under examination in plain language, allowing both legal professionals and the general reader to follow cases as they proceed. “People can pick up a preview and have a good understanding of what the Court is considering and how that might affect cases that they’re working on, or different legal issues that are important to them,” says Laurel Hopkins ’18, the Bulletin’s editor in chief. “That connects with the LII’s broader mission of making legal information readily available to the public.”
Existing under the umbrella of Cornell Law School gives the LII access to one of its most important resources: that hardworking, enthusiastic value proposition known as law students. Every year, teams of associates on the
The LII’s most recent ventures into new fields have gotten the institute into the “distressed property business,” as Bruce puts it, giving a new home to orphaned legal resources originating outside of Cornell. In May 2016, the LII announced that it had adopted the revolutionary multimedia Supreme Court archive Oyez, securing its future as Oyez founder, Jerry Goldman, prepared to retire from the Chicago-Kent College of Law, the archive’s home at the time. Goldman’s donation of Oyez to Cornell ensured that users would continue to have free access to the archive’s crown jewel: a collection of comprehensive audio records for the high court stretching back to when recorders were first installed in the 1950s, complete with synchronized and searchable transcripts and even a light-up gallery of justices to let listeners know who’s speaking.
“My thinking was that Oyez should be part of an academic institution,” says Timothy Stanley, the founder and CEO of the legal resource website Justia, which had already been involved in providing infrastructural and tech support to Oyez. “As LII works with it some more, and starts doing some analysis, that will actually turn out to be the bigger thing. I think it will become a serious Supreme Court research center.” (See Q&A with Tim Stanley about the importance of LII and how he helped bring Oyez to LII.)
If Oyez’s transfer represented the preservation of a valued resource, the LII’s other recent acquisition is more of a resurrection. LII Associate Director for Technology Sara Frug is heading up efforts to renovate Docket Wrench, an online resource aimed at shining light on comments submitted during the rulemaking process. Launched by the Sunlight Foundation in 2013, the first iteration of Docket Wrench had been aimed at helping journalists sift through the millions of documents submitted by corporations and ordinary citizens during the mandatory public comment periods.
Even back then, Docket Wrench had caught the LII’s attention, since it complemented the Cornell institute’s approach of focusing on providing access to what the LII staff calls “the large contact surface with the public”—regulations and enabling legislation— rather than just trying to amass endless collections of case law. “We thought of the Docket Wrench project as a very natural extension of the work we were doing,” says Frug. “They were look- ing at how the rulemaking process actually works and how the collaborative process of the development of rules actually works.”
Sunlight eventually deprecated Docket Wrench, a move that the Sunlight Foundation’s deputy director, Alexander Howard, attributed to it never really having found an audience. The tool got a second chance, though, after Sunlight announced in September 2016 that it was closing down its technology shop, Sunlight Labs, amid an organizational shake-up, and was putting its software projects up for adoption. “The ethos Sunlight has approached our work with from the beginning is that we do things open by default,” says Howard. “We share code, we share methodology, we share thinking. And in this case, because it was open-source, they literally could just grab it.”
Grabbing Docket Wrench was only the first step, though. The challenge of working with data on the scale covered by Docket Wrench—some three terabytes of text—was one of the project’s attractions for the LII team. However, that also means that scraping all that data from the main Regulations.gov website, as well as separate sites maintained by some nonparticipating federal agencies, involves a lot of time and custom software.
When it’s done, though, Frug anticipates that Docket Wrench will find a broader audience at the LII with its focus on executive branch regulations than it had at Sunlight, which had been more oriented toward examining legislative activity. “The traffic to the LII website means that once we link rulemaking activity in Docket Wrench to the parts of the CFR with which it is associated, we will have an easier time building traffic and improving discoverability,” she says.
The LII’s most obvious users have always been attorneys and people navigating legal issues in their own lives, whether filing for bankruptcy or fighting for veterans’ benefits. Another big section is made up of nonlawyers who work with the law and with government regulations professionally—anyone from journalists to tax preparers to probation officers.
The past year, though, has also given LII reader- ship a “Trump bump,” as first the 2016 presidential campaign and then controversial moves by Donald Trump’s administration sent waves of ordinary people searching for unbiased sources so they could read what regulations or the Constitution actually said. Traffic has been up by around 20 percent, with the apex coming in late January as the administration announced travel restrictions on refugees and on citizens of seven mostly Muslim countries, fired Acting Attorney General Sally Yates when she resisted defending the travel order, and put Steve Bannon on the National Security Council. The site normally averages around 200,000 unique visitors a day; over January 30 and 31, a flood of interest in immigration and national security regulations produced more than 750,000 visits.
The LII has had to scramble to keep up as public attention increases in previously quiet areas of the legal landscape. Craig Newton, the associate director for content development at the LII, says that figuring out where to devote resources requires keeping a keen eye on the headlines and social media—and on Google Analytics, to see what users are looking for when they make their way to the LII and whether they’re finding it once they get there.
Cristian Farias. Now a legal columnist at New York Magazine, Farias says, “I like to link to the LII because I view it as a public service. I’m not just writing for people who know about the law but also for people that have no idea about the law. If there’s a term or an amendment or a statute that would be relevant, I very much want people to click on that link and to go and read it to find out for themselves what the law says.”
Sometimes, users inspire the LII to expand its offerings more directly. If you’re interested in learning about the Constitution’s emoluments clause, you can thank legal affairs journalist
With questions mounting about whether Trump-controlled business ventures were allowed to receive payments from foreign governments, Farias went looking for the LII’s article on the emoluments clause, figuring that his readers would appreciate reading the original for themselves. Only one problem: there was none. Once Farias got in contact with Newton, though, the omission was soon rectified, and Wex became a bit more comprehensive.
Farias had first come to the attention of the LII when Farias was working at the Hufﬁngton Post, after Newton noticed that Wex was getting consistent spikes in traffic from links in Farias’s articles. When the U.S. Court of Appeals for the Ninth Circuit issued an order in January against the Trump administration’s travel restrictions, a link in Farias’s story on the ruling sent readers flocking to the LII to find out just what is going on when a ruling is issued per curiam.
Newton got in touch with Farias on Twitter to say thanks and added, “Just so you know, 2,900 people learned what en banc means.”
Farias says that he often uses the LII while researching stories, especially to make sure he gets arcane details like rules of court right. Most of the time, this kind of digging just makes for a better story, and the reader doesn’t get to peek behind the scenes at all of a writer’s background sources. This time, though, Farias felt that it was important enough for his audience to know exactly how the court decision was issued to include a link to Wex. “In this case, it was relevant for people to know that this opinion wasn’t by an individual,” he said. “It was the court as a whole. It was three judges speaking as one.”
From the earliest days, Bruce and Martin hoped to encourage the growth of other nonprofit law databases. While a few other attempts in the United States failed to survive, the international Free Access to Law Movement has seen an incredible flowering of nonprofit legal databases around the world, beginning in Australia and Canada and spreading to dozens of countries in Africa, Asia, Europe, and South America.
Xavier Beauchamp-Tremblay, contrasts the approach of his organization to that of the wholly university-operated Australasian Legal Information Institute (AustLII). “We have big incentives to make it very user friendly for the lawyers and notaries, and to embed ourself into the work habits of the legal profession,” Beauchamp-Tremblay says of CanLII and its more workaday goals. “AustLII may have approached the free access to law challenge from a different perspective, focusing from the onset on playing a preservation role and exhaustively adding historical cases.”
Unlike the Cornell LII, many of the international LIIs function as their countries’ official legal repositories. Focuses vary according to national circumstances and the particulars of their creation. Although the Canadian free access to law movement had started back in 1993 when the University of Montreal’s LexUM Laboratory (later spun off into a private company) began publishing Supreme Court judgments, the more expansive Canadian Legal Information Institute (CanLII) began life when the academic lab partnered with 14 provincial and territorial law societies—comparable to U.S. bar associations. CanLII’s president and CEO,
Both CanLII and AustLII developed independently from the Cornell institute, and their decision to adopt the “LII” moniker reflected the organizations’ shared ideas. Bruce and Martin were happy to let anyone adopt the acronym. “We’ve become the Kleenex of open-access law,” says Martin. “It’s a brand name that everybody recognizes.”
The Cornell LII took a much larger role in the development of the LII movement in Africa. By 1995, the local Free Access to Law Movement had already kicked off in postapartheid South Africa when, inspired by reading U.S. Supreme Court decisions on the Cornell LII website, judges from the newly created Constitutional Court got in touch with the University of the Witwatersrand Law School’s library in order to get their decisions online. The next year, LII’s collaboration with the University of Zambia School of Law produced the continent’s first legal information institute.
As the number of African LIIs multiplied, Bruce and the team at Cornell LII helped free-access activists build capacity to get their countries’ legal information online and advised them on how best to scope their projects, tempering wishes for comprehensive collections and bleeding-edge technology to the limited resources at hand. In turn, when new LIIs formed, “they always insist on the trademark. It’s really considered a prestigious thing that everybody wants to be affiliated with the standard that was first set by the Cornell LII,” says Mariya Badeva-Bright, the cofounder and project manager of the African Legal Information Institute (AfricanLII), which was started at the University of Cape Town in 2010 in order to promote the growth of LIIs that fit local conditions.
More than most other LIIs, the African databases fill fundamental access needs for their users, and many of them are operated by national governments. “The major difference between the LIIs in Africa and what you have in the United States is that in Africa the governments themselves are having huge difficulties making legal information public,” says Badeva-Bright. “Most of the legal information is only available in hard copy. There are no repositories in the way that you have in the United States in terms of disseminating public information freely and openly. So the LIIs help governments to fulfill their basic duty of providing access to legal information.”
Back in the United States the Cornell LII still has its own niche to fill as various public entities get better at disseminating the law themselves. Looking back, Martin says, “Our initial insight was that in this highly decentralized legal universe called the United States, there was no place for us to attempt what our colleagues in Canada and Australia did, which was to try to create a comprehensive database for the whole country. Rather, we needed to be far more narrowly focused, and to concentrate our energies on doing what we did in a way that set a standard, and a standard that kept raising the bar.”
Q&A with Tim Stanley, CEO of Justia
Tim Stanley is a computer programmer, lawyer, and CEO of Justia, which helps lawyers promote their practices online and also makes legal information widely available and accessible without cost. Before starting Justia, Stanley cofounded FindLaw with his wife, Stacy Stern (who also cofounded Justia), and served as its CEO and chairman. Fastcase50 has called him “the computer programming part of legal technology’s most karma-endowed couple.” He is on the board of directors of Nolo and American LegalNet, and is on the board of trustees of Public.Resource.Org.
What does the Legal Information Institute (LII) mean to you?
To me, LII is the birthplace of free law in the United States. Everything we did at FindLaw and later at Justia have sort of been knockoffs of LII, which kind of led the way. They showed it could be done and that things could look good. And then we just sort of copied them.
How does the Law School benefit from LII?
I think LII has really enhanced the reputation of the Law School. It’s made you guys the online tech leaders in law—with ease. Most people on the street, when they think of Cornell Law School they are thinking of the LII because its online presence is so huge.
Why does Justia support LII?
LII really has been the light that—in one way or another—all of the other free law stuff has revolved around. LII is a no-brainer for me.
You were instrumental in bringing Oyez to LII. Can you explain how that partnership came about?
Justia had been involved with Oyez and its founder, Jerry Goldman, for some time and was providing the site’s infrastructure. However, with Jerry retiring from Chicago-Kent College of Law and in light of concerns about who would keep up the site, its future was in question.
My thinking was that Oyez should be part of an academic institution. So I wondered where would it fit and, obviously, LII is easily the best place it could fit.
What are some ways the Law School might leverage Oyez?
In addition to being the authoritative source for all of the Supreme Court’s audio recordings, Oyez recently acquired PDFs of all the Court’s cases, without any copyright restrictions. As LII works with that case law some more, and starts doing some analysis, and other academics start using it, that may actually turn out to be the bigger thing. I think it will enable LII/Oyez to become a serious Supreme Court research center.
What are some ways in which you would like to see LII expand?
Longer term you might want to have a full set of all the laws, case law, and codes—try to make it the largest free database of U.S. law. I haven’t yet seen a really good aggregation of higher-quality legal material. When it has been aggregated, a lot of times it’s either segmented off to certain populations or it’s a mixture of quality.
What are some of the biggest challenges facing the free law movement over the next five to ten years?
First, I thought that by now, the courts would be publishing easy-to-use, downloadable case law and codes. You have a lot of private legal publishers coming in and taking over sections of the law and online resources on the pretense of providing free stuff. However, they’ve done it in a way that allows them to control what’s being presented and they’ve taken out a lot of the value adds, like internal page numbers, which you need for citing.
The second big issue is that private publishers are trying to come in and control access to codes and regulations. You have a whole set of codes published by private entities such as trade associations—that many times involve criminal penalties if you don’t follow them—that are then incorporated by reference in federal regulations.
But realistically you can’t read these regulations unless you join the association and pay say $1,500 a year. That’s crazy. However, the real problem isn’t the fees these groups charge; it’s that they can actually control what the standards are.
As I sat in Myron Taylor Room 387 during an endless Building Committee meeting, my eyes locked on one image in the class composite picture on the wall just opposite me. It was the forceful intelligence of the gaze that grabbed me, or maybe it was the fact that she was the sole woman in a class with ninety-eight males.
The year of the class composite was not labeled, and the names’ calligraphy ink had faded. But some simple detective work yielded Frances A. Kellor, LL.B., of the Class of 1897. She was Cornell University’s third female law graduate,1 one of the Law Department’s first LGBT+ students,2 and certainly among the nationally most prominent of Cornell Law School’s early graduates.3
Frances Alice Kellor was born in Columbus, Ohio, in 1873. After her father’s disappearance, she and her mother moved to Coldwater, Michigan. “Alice” hunted with a slingshot and rifle and helped her laundress mother. Financial hardship caused her to drop out of high school and to become a newspaper typesetter and then reporter. When she was sixteen, she moved in with the wealthy Eddy sisters, who were local social activists and who home-educated her. She also fell under the influence of Rev. Henry P. Collin, a devotee of the social gospel movement.
In 1895, Kellor and perhaps Frances Eddy moved to Ithaca, where she enrolled in Cornell’s Law Department after passing an entrance exam. Now known as “Frances,” Kellor became president of the Women’s Debating Club. In 1897 she founded the Women’s Boating Club, which lasted until 1933, when it went into hiatus until being revived in 1974 and becoming a varsity sport in 1975. She got a shell and boathouse built.
Frances would later coauthor with a former girlfriendAthletic Games in the Education of Women (1909), which championed the importance of physical exercise in the emancipation of women.
Kellor’s impressive senior thesis, “Criminal Anthropology in Its Relation to Criminal Jurisprudence” (1897), which still resides in the library at Cornell,4 argued for incorporating the lessons of the new social science of anthropology into criminal law. The die was cast. Although she would use her legal training on a daily basis, Kellor would not be a practicing lawyer. Instead she was off to the University of Chicago for graduate studies in sociology. There she would rail against the genetic theory of crime being pushed by the dominant Italian school of criminal anthropology. Kellor’s field studies in local and southern prisons yielded her first book, Experimental Sociology (1901), which stressed the socioeconomic influences on crime. She lived and worked in Hull House, the famous settlement house founded by Jane Addams. Kellor also earned extra money as a gymnastics instructor and basketball coach at the university.
New York City
In 1902 Kellor moved to New York City, a permanent change of location, for further studies at what is now known as the Columbia University School of Social Work. She lived and worked at the Henry Street settlement house. In 1904 she began her lifelong partnership—passionate, playful, and mutually supportive—with the well-to-do progressive Mary E. Dreier (1875–1963). A happier personality emerged after she moved in with Dreier, but Kellor remained the same brusque, independent-minded, persistent, pragmatic, down-to-earth, and modest person.
Kellor moved into hands-on social work and eloquent social advocacy on behalf of the oppressed—blacks, women, migrants, domestic workers, immigrants, the unemployed, prostitutes, prisoners. She began an outpouring of dozens of books and uncounted articles—including classics such as Out of Work (1904, revised 1915), the first empirical (and under-cover) study of unemployment and labor conditions in America. And having a gift for organization, she started movements—as director of the new Inter-Municipal Committee on Household Research, as the first executive secretary of the National League for the Protection of Colored Women (one of three organizations that later consolidated to form the National Urban League), as secretary and treasurer of the New York State Commission of Immigration, as chief of the NYS Bureau of Industries and Immigration (first woman head of a NYS bureau), as managing director of the North American Civic League for Immigrants, and as chair of the National Service Committee of the Progressive (Bull Moose) Party. Indeed, she became part of Theodore Roosevelt’s “Female Brain Trust,” with Jane Addams and Florence Kelley. It is notable that Kellor’s heavy political involvement preceded women’s right to vote. Roosevelt himself observed: “I always favored woman’s suffrage, but only tepidly, until my association with women like Jane Addams and Frances Kellor, who desired it as one means of enabling them to render better and more efficient service, changed me into a zealous instead of a lukewarm adherent of the cause.”5 Later she chaired the Women’s Committee of the National [Charles Evans] Hughes Alliance, directed the National Americanization Committee, ran the InterRacial Council, and was president of the powerful American Association of Foreign Language Newspapers.
In addition to her service-based work and legislative reform on behalf of immigrants, Kellor shifted the focus of her scholarship, which culminated in Immigration and the Future (1920). She was identified with “Americanization,” meaning assimilation and protection, as shown in the poster for one of her pet projects. Today that might be controversial, but no doubt exists as to the goodness of Kellor’s intentions.6 In fact, her aim has been better called “Multicultural Nationalism.” She was concerned with the material well-being of immigrants and believed that they could better fight against exploitation and for their economic interests once they adopted some aspects of American life. More specifically, she provided newly arrived immigrants with leaflets and brochures in their native language informing them about the associations and networks that they could rely on to start their new life in America, encouraged immigrants to learn English and civics, and fought prejudice and sought cooperation and understanding between immigrants and long-term Americans.
In the early 1920s, as Congress stopped the inflow of immigrants, Kellor again shifted her main attention to a newer passion: arbitration. In 1926, she would be a founder of the American Arbitration Association (AAA), effectively running the organization as its first vice president under male figureheads for the rest of her life. She worked tirelessly to educate others about arbitration and to expand its use as an alternative dispute resolution mechanism in the new industrial society,not only for labor and international conflicts but also for all as a matter of peaceful self-regulation. As part of this work, Kellor supported the publication of the Code of Arbitration Practice and Procedure of the American Arbitration Tribunal (1931). “Trained as a lawyer and a sociologist, she utilized opportunities afforded by the program of Progressive reform to develop a career that took her from the settlement houses into the upper echelons of the burgeoning administrative state, first locally and then nationally. . . . Having long called for the private sector to play an important role in addressing the nation’s social ills, she ultimately looked to the arbitration system being developed by the AAA as a means of furthering her abiding commitment to the quintessentially Progressive project of Americanization.”7
The New York Times noted upon her death, “she could look back over long years of life and feel sure that civilization in this country had grown more humane and intelligent during that time; she could feel sure, too, that she had had a part in making it so.”8
1. The first was Mary Kennedy Brown, LL.B. 1893. See Kevin M. Clermont & Lyndsey Y. Clark, “Mary Kennedy Brown: Our First Woman Lawyer’s Dramatic Life,” Cornell L.F., Fall 2015, at 10, http://forum.lawschool.cornell.edu/Vol41_No2/Feature-3.cfm. The second was Helen Mae Colgrove, LL.B. 1896, who was a pioneer for women’s rights. Julie Regula Jenney, a Michigan Law graduate who in 1920 would become the first woman deputy attorney general of New York, also did postgraduate work at Cornell’s Law Department in 1893–1894.
2. See Lillian Faderman, To Believe in Women: What Lesbians Have Done for America—A History ch. 8 (1999).
3. Recommended reading: John Kenneth Press, Founding Mother: Frances Kellor and the Creation of Modern America (2012); Allison D. Murdach, “Frances Kellor
and the Americanization Movement,” 53 Soc. Work 93 (2008); Sandra K. Partridge, “Frances Kellor, and the American Arbitration Association,” Disp. Resol. J., Feb.–Apr. 2012, at 16.
4. Kellor’s thesis is available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1327&context=historical_theses.
5. Theodore Roosevelt, An Autobiography 180 (1913).
6. See Amalia D. Kessler, “Arbitration and Americanization: The Paternalism of Progressive Procedural Reform,” 124 Yale L.J. 2904, 2975 (2015) (“While some praise her heroic efforts to help the disempowered [including especially immigrants], others point to the ways she sought to impose her own white, middle-class, and Protestant values on the very people whom she claimed to serve.”).
7. Id. at 2974.
8. N.Y. Times, Jan. 6, 1952, at 8E (editorial printed two days after her death).
Because of how it has been implemented, Broken Windows policing has gotten a very bad name, and deservedly so. But until there is no disorder, police will be in the business of order maintenance.
However much we complain, the fact is that we would not want the police to be without this power, despite the readily foreseeable risk that the power will be abused. The question, therefore, is not whether we like order maintenance, or even whether Broken Windows “works.” The question is, How can we deploy it justly? This essay begins to sketch an answer.
You are a baker. Every day, you head to the little shop you bought eleven years ago and bake tray after tray of French pastries. You still get the same thrill when you see the faces of the commuters who hustle through the door on their way to the train. As they enter the shop and smell the pastries, they stand a bit taller and inhale deeply. They smile and you smile.
Except the commuters don’t pass through the doors anymore—at least, not in the same numbers. A group of homeless men has begun to gather outside your door every morning. They ask your customers for money, forming a gauntlet that your customers must run. Sometimes they persist, and repeat the request as your patrons hurry away from the shop, eyes averted. Some carry on conversations with people who are not there, and dance with partners others cannot see. Fights occasionally break out. One time a man produced a knife.
You are not cruel to these men or insensitive to their plight. You know that good jobs are hard to find. You chat with them when they come into the shop. They are not rude and appreciate your kindness. They are not bad people, and you know your problems pale next to theirs. You ask them not to harass your customers. They agree, and for a time, things are better. But not for long. You wish we lived in a world without homelessness. Where addicts got help. Where the mentally ill got treatment. Where people could find good jobs. You wish the men well. But in the meantime, you have a business to run and a family to support. So what do you do?
This year marks the thirty-fifth anniversary of “Broken Windows,” one of the most important criminal justice articles ever written. The authors maintained that a neighborhood’s willingness to tolerate low-level, disorderly behavior sends a signal to more predatory offenders that the residents will not enforce the unwritten social rules that keep serious crime at bay. Heeding the signal, predators move in, or so the argument goes. As they do, people abandon the neighborhood, leading to the death of yet another neighborhood. But if the police come down hard on the low-level disorder before the slide begins, they can prevent the descent and preserve the neighborhood. That, at least, is the theory behind Broken Windows, also known as “order-maintenance” or “quality-of-life” policing.
Scholars disagree about whether order-maintenance strategies work, and the evidence is mixed. Yet despite the uncertainty,
order-maintenance policing became exceedingly popular in the 1990s. Worse, in the misguided belief that if a little order maintenance is good, a lot must be better, Broken Windows morphed into Zero Tolerance, and this is where things went horribly awry.
Consider the experience in New York City. For most of the peak crime years in New York, the police made substantially more felony than misdemeanor arrests. That changed, however, in 1994, when the NYPD decided to shift to quality-of-life policing. Between 1993 and 2010, misdemeanor arrests in New York nearly doubled while the number of summonses issued by the NYPD increased from about 165,000 to roughly 600,000. This explosion cannot be attributed to a sudden rise in low-level crime; misdemeanor arrest rates soared because of a political choice to target particular conduct.
Since the embrace of order-maintenance policing in New York, misdemeanor arrests have consistently been concentrated in black and Hispanic neighborhoods. Between 1993 and 2010, the number of misdemeanor arrests for whites increased 35 percent. Over the same period, the number increased over 105 percent for blacks, and over 158 percent for Hispanics. Adding insult to this discriminatory injury, the overwhelming number of people caught up in New York City’s experiment with order maintenance had no prior criminal record. Routinely, from 1990 to 2012, between 60 and 70 percent of the people arrested on misdemeanors had no prior criminal convictions.
We don’t know precisely how many people have been “orderly maintained,” but scholars and police researchers put the number of misdemeanor arrests nationwide at about ten million every year. The result has been to sweep a staggering segment of the population into the criminal justice system. The FBI calculates that law enforcement in the United States has made more than a quarter-billion arrests in the past twenty years alone. The FBI master criminal database contains more than seventy-seven million names. Roughly one in three adults has been arrested by age twenty-three.
But none of this helps you answer the question, What do I do about the homeless men assembled outside my bakery?
At best, the police offer an imperfect solution. If the men outside your shop are violating a law, the police can order the men to move along. They can issue a citation, whether civil or criminal. They can arrest the men and take them to the local jail, where they will be processed, sorted, and released, perhaps after serving some relatively brief period in custody. Upon release, they might be ordered not to return to the scene of their “crime.” Perhaps they will ignore this command, which will subject them to further arrest, even if their behavior is impeccable. But even if they comply, other men are likely to take their place.
These enforcement rituals obviously do nothing to provide a lasting remedy. Yet in most places, they are all we have. So, at least for now, you call the police—not because order maintenance “works,” but because there is no alternative.
1. Police Should Use Targeted Enforcement at Microplaces
Crime is hyperconcentrated. Studies across the country show that roughly half the crime in a city takes place at only 4 percent
of the street segments; a quarter occurs at about 1.5 percent of the segments. These spots are tiny; a street segment is the area on either side of a street between two street corners, but sometimes the troublesome spot is a single address. But concentrating on a small number of microplaces—what law enforcement calls “hot-spot policing”—is only the first step. Because so much crime occurs at only a handful of places, those who study policing are beginning to look beyond arrests to ask, What is it about this place that makes it different from others, and how do we change it in a way that fixes the problem in a lasting way?
Suppose that drug dealers have begun to operate from the parking lot of a grocery store. Arresting low-level dealers in the parking lot will have little effect except to engorge the prisons and propel mass incarceration. Rather than simply making more arrests, the parking lot may need environmental changes—lighting and street design, for instance, which permit better natural surveillance of the area. Or it may require closer and more diligent oversight by the manager of the grocery store. The police are not well equipped to provide these solutions, and an official response that does no more than send one young man after another to prison makes the problem worse, not better. Making a bunch of arrests, without more, is like trying to fix a leaky roof by investing in a bigger mop. Sometimes we need a mop, but mostly we need to fix the roof.
Order maintenance can be an integral part of these targeted, problem-solving strategies. Chronic disorder at a particular hot spot can deter communities from making the commitment needed to transform a problem place. Though Broken Windows enforcement is not a lasting solution to a hot spot, it can stabilize a location and thereby create a temporary condition that allows other, superior interventions to take root.
2. Law Enforcement Should Limit the Impact of Order Maintenance
Since the risk of misuse is so great, we should establish default preferences that minimize the impact of order maintenance. Officers should be encouraged to view arrest as a last resort rather than a first impulse. This encouragement should begin at the academy and be reinforced throughout an officer’s career. Officers should conceive of arrest as the last stop on a continuum that begins with polite conversation, proceeds to verbal warnings, escalates to civil
sanction, then to criminal citation, and finally, only after other options have been exhausted or proven unworkable, culminates in arrest. There must be no incentives for officers to skip to the last step and make an arrest as a matter of course.
3. Municipalities Must Strive to Make Order-Maintenance Policing Unnecessary
It is not enough to insist that order maintenance be limited. When a city abandons Zero Tolerance strategies and focuses its energy on the worrisome few, it saves considerable resources. In any morally just scheme, it must use those resources to help bring an end to the conditions from which disorder springs. It is not enough to content ourselves with the knowledge that we plan to arrest only a few who are disorderly, whereupon they will be shipped to places like Rikers Island, out of sight and out of mind.
4. Within Constitutional Limits, Let the Community Decide
The police should not assume that all disorder is unwelcome. Instead, the police should let the community define objectionable behavior. This is a cornerstone of community policing: if it doesn’t matter to the community, it shouldn’t matter to the police. This may be a difficult judgment to make. It is possible that no one called the police because the informal social controls in a community have collapsed, and no one takes responsibility for neighborhood well-being, including by calling the police. It is also possible that relations between the police and the community are so strained that residents no longer look to the police for help with their problems.
But these difficulties do not relieve the police of the obligation to try to distinguish between allowable and objectionable disorder—a judgment that in the first instance should be left to the community. The police must try to ascertain and heed the community’s opinion about the allowable limits of disorder. They must identify community leaders and engage in responsible, respectful conversations about the needs of the neighborhood. This is not a new obligation; it has been part of the community policing movement since its inception. In addition, the obligation goes both ways; if the community wants to be heard, it has to speak. It must communicate clearly that this disorder is objectionable and that is not.
Of course, deference to the community creates the risk that some people will encourage the police to engage in discriminatory, selective, or vindictive enforcement. This is merely the tension between individual liberty and community solidarity. It is not, in other words, a new problem for the police. As always, they must be mindful that they have been summoned as a legitimate attempt to eliminate disorder, not as an illegitimate attempt to get
the state to play favorites in a private grudge. Likewise, because the police sometimes get it wrong, the courts must be open to victims so that they may seek redress for unlawful police action. This, however, is not a new obligation.
Because we live in an imperfect world, we must also live in a world of order-maintenance policing. Giving the police this hammer leads them to uncover innumerable nails. For that reason, order maintenance must be carefully controlled. To restrain it, we should (1) encourage law enforcement to engage in place-based problem solving at hot spots; (2) incentivize law enforcement to conceive of arrest as a failure; (3) direct municipalities to shift resources to alleviate the conditions that contribute to disorder; and (4) ensure law enforcement recognizes the difference between allowable and objectionable disorder. Only if law enforcement takes these obligations seriously can we can learn to live with Broken Windows.
Shortly after the news broke that President Trump’s advisers were looking into the possibility of the president issuing a pardon to family members, campaign staff, and even himself for crimes he and they may have committed by colluding with Russian government officials or obstructing the investigation into such collusion, I received inquiries from reporters who wanted to know whether a president really could pardon himself. The short answer, I said, is that no one really knows, because no president has had the audacity to try.
That does not mean that the arguments for and against a self-pardoning power are equally balanced. The text of the Constitution does not expressly rule out a self-pardon by the president, but three factors argue against it. First, there is the origin of the word “pardon,” which connotes a benefit conferred on others. Second, there is the fundamental principle that no one is above the law. And third, there is the related and equally fundamental principle that no one should be a judge in his own case. Still, given the paucity of directly applicable precedent, the question remains open.
Meanwhile, one of the reporters to whom I spoke also asked me whether an effort by Trump to pardon himself would spark a “constitutional crisis.” The answer to that question depends on what one means by “constitutional crisis.” If every important but previously undecided constitutional issue that presents itself creates a constitutional crisis, then sure, a Trump self-pardon would precipitate a constitutional crisis.
However, we do better to reserve the term “constitutional crisis” for events that risk leading to a breakdown in the Constitution’s mechanisms for peaceful resolution of political conflicts. Judged by that standard, a Trump self-pardon would not cause a constitutional crisis. Unfortunately, other Trump actions may have already placed us far along the road to a constitutional crisis.
What Is a Constitutional Crisis?
Pundits use the term “constitutional crisis” promiscuously to
refer to just about any set of circumstances that poses questions to which neither the text of the Constitution nor case law provides a clear answer. Yet as Sanford Levinson and Jack Balkin explained in an insightful 2009 article (“Constitutional Crises,” University of Pennsylvania Law Review, 157, 3) that usage is unhelpfully broad. “Government institutions are always in conflict,” they write. So long as courts and other institutions are capable of resolving or managing such conflict, there is no crisis.
Levinson and Balkin would reserve the term “constitutional
crisis” for circumstances that threaten the breakdown of the constitutional order. They identify three types of crisis.
“Type one crises arise when political leaders believe that exigencies require public violation of the Constitution.” Levinson and Balkin give the example of President Jefferson’s pursuit of the Louisiana Purchase notwithstanding his doubts about the constitutional authority for it. To my mind, a more obvious example can be found in President Lincoln’s July 4, 1861, address to a special session of Congress. Honest Abe defended his unilateral suspension of the writ of habeas corpus on the ground that even if it was unconstitutional, the preservation of the Union and the rest of the Constitution demanded it. He asked rhetorically, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”
Levinson and Balkin think that Lincoln’s suggestion of emergency power does not quite fit their type one because they characterize Lincoln as offering a “controversial interpretation” of the Constitution, rather than asserting the power to violate it. I respectfully disagree about this particular example, but I do not quarrel with the validity of the category more generally.
So much for type one. What about type two? “Type two crises,” say Levinson and Balkin, “are situations where fidelity to constitutional forms leads to ruin or disaster.” Such a crisis occurs because of a (possibly latent) flaw in the Constitution itself. For example, Levinson and Balkin suggest that prior to the adoption of the 25th Amendment—which allows for the removal of an infirm president—such a crisis might have occurred if a president suffered a debilitating illness or injury: he would remain in office but would be unable to discharge his responsibilities.
Finally, “type three constitutional crises involve situations in which political actors believe that their opponents are taking dangerous and illegal steps that endanger the constitutional foundations of the republic . . . and generally produce . . . extraordinary forms of struggle and opposition that go outside the realm of ordinary political jostling and political brinksmanship.” The struggle that culminated in the Civil War is an obvious example, but Levinson and Balkin also point to various others, almost all of which involve states in the South resisting national laws and policies.
Where Does Self-Pardoning Fit?
A presidential self-pardon arguably falls within Levinson and Balkin’s type two. If the Constitution permits a president to pardon himself, surely that is a hitherto latent flaw in the Constitution. If the Constitution does not embody the principles that no one is above the law and no one may be a judge in his own case, so much the worse for the Constitution.
Nonetheless, standing alone, a constitutional flaw does not a constitutional crisis make. The Constitution contains many flaws. Article I empowers Congress to issue “Letters of Marque”—essentially a license to commit piracy—even though international law has banned them since the nineteenth century. The Article II requirement that a president be a natural-born citizen exhibits a form of xenophobia that should be repugnant in a nation of immigrants. The Seventh Amendment right to civil jury trial in cases in which the amount in controversy exceeds twenty dollars should but does not include a cost-of-living adjustment. Et cetera. Such flaws do not give rise to crises unless they undermine the constitutional order itself.
To see why the possibility of a self-pardon does not undermine the constitutional order, consider how a Trump self-pardon would likely work. Suppose that special counsel Robert Mueller concludes that the president has committed criminal acts either by colluding with Russia or by obstructing the investigation into such collusion.
As a threshold matter, Mueller would need to determine whether he has the authority to indict and prosecute Trump. Most constitutional lawyers think that a sitting president may not be criminally prosecuted, but a recently discovered memorandum by Ronald Rotunda challenges that view. The memo—which was written in 1998 for independent counsel Kenneth Starr’s investigation of President Clinton and unearthed in response to a Freedom of Information Act request by the New York Times—specifically lists obstruction of justice as one of the crimes with which a sitting president may be charged. If persuaded by Rotunda’s analysis, Mueller could seek a grand jury indictment of Trump immediately.
However, if Mueller adheres to the conventional wisdom, he might seek to indict other members of the Trump family and staff, while simply reporting findings about Trump himself to Congress (as Starr did with respect to Clinton). If Mueller were to follow this course, indictment and prosecution would have to wait until Trump left office—whether by completion of one or two terms, impeachment and conviction, or resignation.
Yet regardless of whether an indictment were to come during or after Trump’s presidency, his self-pardon would result in a definitive adjudication. If Trump were indicted on charges for which he had previously pardoned himself, he would argue to the courts that the pardon precludes prosecution. Mueller or his successor in the matter would respond that the self-pardon is invalid.
The courts would resolve the issue one way or the other. Thus, there would be no constitutional crisis, as I told the reporter who asked me the question in the first place.
A Fourth Type: Defiance of Unwritten but Necessary Norms
The Levinson/Balkin categories are somewhat fluid. They note how one kind of crisis can transform into another. Nor are the categories exhaustive. I would offer as a friendly amendment a fourth category: Type four crises involve defiance by powerful political actors of unwritten norms that are not themselves legal obligations but that undergird the constitutional system as a whole. In my view, if Congress had acquiesced in President Roosevelt’s Court-packing plan, we would have faced a type four crisis.
But maybe the Court-packing plan shows that type four is really a subset of Levinson and Balkin’s type two. After all, Roosevelt and the New Deal Congress could have gotten away with Court packing only because of a latent flaw in the Constitution: Article III specifies that there shall be a Supreme Court, but it does
not fix the number of justices. That flaw was exploited during Reconstruction (in order to deny President Andrew Johnson an appointment to the Court) and, under different circumstances, might have precipitated a constitutional crisis.
Nonetheless, I would characterize norm breaking as a distinctive type of crisis. It is true that a constitutional norm only exists as a norm because there is no applicable constitutional rule, and that gap could be thought a flaw in the Constitution. However, it is impossible for constitution writers to incorporate in a constitution every practice needed to make the resulting system work. Thus, most norms do not simply patch flaws. Properly understood, norms are an essential complement to formal legal rules. Accordingly, even if the violation of some norms could be seen as generating a type two constitutional crisis, we will better understand the nature of constitutional crises by treating norm breaking as a distinctive type.
Does Trump’s Norm Breaking Presage a Type Four Constitutional Crisis?
Turning back to Trump, would a self-pardon generate a type four constitutional crisis? Even if we assume that a president has the formal authority to grant himself a pardon, there is surely a norm against doing so. Thus, a Trump self-pardon would violate (at least) a constitutional norm. However, for the reasons discussed above, it would not generate a constitutional crisis, because the courts would be capable of resolving any resulting uncertainty.
Unfortunately, Trump is already violating other norms in ways that do threaten a constitutional crisis. I shall mention two.
First, bucking the very strong norm under which responsible political leaders aim to bolster democracy, Trump has repeatedly questioned the integrity of our electoral system. His baseless claim that he would have won the popular vote were it not for voter fraud stands in stark contrast to the actions of every prior president, including the last one to be elected despite losing the popular vote. Concerned about some of what we learned about flaws in the electoral process, George W. Bush signed the Help America Vote Act to strengthen American democracy. By contrast, our current president created a commission to investigate trumped-up claims of voter fraud. The likely outcome will be a pretext for voter suppression. A possible outcome would be a general loss of confidence in the electoral process so that in some future closely contested election, vast numbers of Americans would not accept the result and take to the streets. A type four crisis of norm breaking would thus unleash a type three crisis of political violence.
Second, President Trump has repeatedly sought to undermine the free press by labeling nearly all negative coverage of his presidency “fake news.” Of course, every president on occasion expresses dissatisfaction with press coverage. The Nixon administration even attacked the press in general. Nixon’s vice president famously and alliteratively called the press “nattering nabobs of negativism.” Yet despite such pointed criticism, prior presidents have largely accepted that critical coverage comes with the job. Trump, by contrast, either does not appreciate or does not care about the fact that a vital free press makes democracy possible. In seeking to delegitimate simple reporting of facts, President Trump exercises his own First Amendment rights in the service of undercutting the First Amendment more broadly.
Trump’s norm breaking will not destroy American democracy overnight. In that sense, his behavior might be said not to constitute a “crisis,” which typically connotes temporal urgency. Yet that very fact may make his behavior especially dangerous. By eroding the norms that undergird our constitutional democracy piece by piece rather than in one fell swoop, Trump may lull the public into believing that he is merely a bad president, rather than the existential threat that he is. We can quibble over whether that does or does not qualify his conduct as sufficient to spark a “constitutional crisis,” but in so doing we ought not overlook the danger he poses.