volume 16, number 1 - UDC Law Review

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\\jciprod01\productn\d\dcr\16-1\boe161.txt unknown Seq: 3 11-FEB-13 12:30University of the District of ColumbiaLaw ReviewVolume 16 Fall 2012 Number 12012-2013 EDITORIAL BOARDEditor-in-ChiefRobert GreenManaging Editor Publications Editor Publications EditorAndrew Bray Kristen Walker Megan TaylorSymposium Editor Articles Editor Notes EditorMegan Challender Stacey Massaro Candice TuckerStudent Journal EditorEva SeidelmanJosh BasilePatrick BatemanLouis FrohmanSammy KimAnton MartinezSenior EditorsCommunications EditorJoshua BailesJohn MillarNaomi SmootElizabeth StevulakJill VonnahmeJason ZelboAssociate EditorsAdam Arnold Johan Fatemi Robert NewmanAmanda Aubrey Julia Gagne Peter OffenKathryn Blevins Alice Gomez Umar KhanSean Brown Chris Hekimian Jamila ShandMichael Carrigan Crystal Ikanih Royale SimmsCarol Cooper Chadsey Jamie Jacobson Carolyn SinghRosana Chavez Sondra Jones Elizabeth StinebaughEmily Citkowski John Kinney Megan StokesberryBryan Colombo Colleen Krisulevicz Amanda UtterbackAshley Cooks Harrison Magy Amanda WalshJason Facci Madeline McKeller Leslie WestFaculty AdvisorsJoseph TulmanHelen FrazerWilliam McLain

\\jciprod01\productn\d\dcr\16-1\fac161.txt unknown Seq: 4 11-FEB-13 12:30University of the District of ColumbiaDavid A. Clarke School of LawADMINISTRATIONKATHERINE S. BRODERICK, B.A., J.D., M.A.T., Dean and Professor of LawVIVIAN W. CANTY, B.A., M.S., Assistant Dean for AdmissionLAURIE MORIN, B.A., M.P.A., J.D., Associate Dean for Academic Affairs and Professor of LawKIPLING ROSS, B.S., M.B.A., C.P.M., Associate Dean for Administration & FinanceANNAMARIA STEWARD, B.A., J.D., Associate Dean of StudentsDENA BAUMAN, B.A., M.A., J.D., Director of Career and Professional DevelopmentKAREN FORMAN, B.S., M.Ed., J.D., Director of Public Interest & Clinical ProgramsHELEN FRAZER, M.L.S., M.A., J.D., LL.M., Interim Director, Mason Law LibraryJOSEPH LIBERTELLI, B.A., J.D., Director of Alumni AffairsJAYE LOPEZ, B.A., Development DirectorDUANE TOBIAS, B.A., J.D., Assistant Director of AdmissionNAILAH WILLIAMS, B.A., M.S., M.B.A., Director of Financial AidEBONY HART, B.S., Assistant Director of Financial AidVANITA SNOW, B.A., J.D., Assistant Director for Career and Professional DevelopmentBARBARA GREEN, B.A., M.A., RegistrarTIFFANY COOPER, B.S., Assistant RegistrarBRITTANY KOLONAY, B.A., J.D., M.L.I.S., Emerging Technologies Librarian, Mason Law LibraryMAX RODRIGUEZ, B.A., M.A., Public Outreach CoordinatorLAW FACULTY AND INSTRUCTORSEDWARD ALLEN, B.A., J.D., Professor of LawJOHN C. BRITTAIN, B.A., J.D., Professor of LawNANCY BROWN, B.A., J.D., Adjunct Professor of LawROBERT L. BURGDORF JR., A.B., J.D., Professor of LawEDGAR S. CAHN, B.A., M.A., Ph.D., J.D., Distinguished Emeritus Professor of LawKRISTINA CAMPBELL, B.A., J.D., Assistant Professor of LawDAN CLARK, B.A., J.D., Clinical InstructorDEBRA COHEN, A.B., J.D., Adjunct Professor of LawRICHARD CONDIT, B.A., J.D., Adjunct Professor of LawTUWANA CUMMINGS, B.S., J.D., Adjunct Professor of LawTHEA DAVIS, B.A., J.D., LL.M., Adjunct Professor of LawNICOLE DILLARD, B.A., M.Ed., J.D., Adjunct Professor of LawDEAN DIONE DUCKETT, B.A., M.A., J.D., Adjunct Professor of LawCOLIN M. DUNHAM, B.A., J.D., M.A., Adjunct Professor of LawANDREW FERGUSON, B.A., J.D., LL.M., Assistant Professor of LawNATHAN BENNETT FLEMING, B.A., J.D., Adjunct Professor of LawMATTHEW I. FRAIDIN, B.A., J.D., Associate Professor of LawLISA M. GEIS, B.A., J.D., Clinical InstructorWADE HENDERSON, B.A., J.D., Joseph L. Rauh Jr. Chair of Public Interest LawCRISARLA HOUSTON, B.A., J.D., Associate Professor of Law & Legal Writing Program DirectorLOUISE A. HOWELLS, B.A., M.A., J.D., LL.M., Professor of LawCHARLES JEANE, B.A., J.D., LL.M., Visiting Assistant Professor of LawADRIENNE JONES, B.A., J.D., Clinical InstructorCHRISTINE L. JONES, B.A., J.D., Associate Professor of LawRAMESH KASARABADA, B.A., J.D., Clinical Instructor

\\jciprod01\productn\d\dcr\16-1\fac161.txt unknown Seq: 5 11-FEB-13 12:30SHARON KELLER, B.A., M.A., J.D., Visiting Associate Professor of LawTHOMAS MACK, B.A., J.D., Professor of LawJAVIER MARTINEZ, B.A., J.D., Adjunct Professor of LawKEMIT MAWAKANA, B.A., J.D., LL.M., Assistant Professor of LawWILLIAM G. MCLAIN, B.A., J.D., Associate Professor of LawSTEPHEN B. MERCER, B.A., J.D., Adjunct Professor of LawVICTORIA MOSHIASHWILI, B.A., M.A., J.D., LL.M., Adjunct Professor of LawROYCE BERNSTEIN MURRAY, B.A., J.D., Adjunct Professor of LawEMILY TORSTVEIT NGARA, B.A., J.D., Clinical InstructorKOSISO ONYIA, B.A., J.D., Adjunct Professor of LawTHE HONORABLE PETER J. PANUTHOS, B.A., J.D., LL.M., Adjunct Professor of LawSHAKIRA D. PLEASANT, B.A., J.D., Adjunct Professor of LawTHE HONORABLE WILLIAM C. PRYOR, B.A., J.D., LL.M., Distinguished Professor of LawROBERT RAYMOND, B.A., J.D., Adjunct Professor of LawJARRED REILING, B.A., J.D., Adjunct Professor of LawWILHELMINA M. REUBEN-COOKE, B.A., J.D., Professor of LawWILLIAM L. ROBINSON, A.B., LL.B., Olie W. Rauh Professor of LawW. SHERMAN ROGERS, B.A., J.D., LL.M., Adjunct Professor of LawLASHANDA TAYLOR, B.A., J.D., Associate Professor of LawJOHN F. TERZANO, B.A., J.D., LL.M., Adjunct Professor of LawJOSEPH B. TULMAN, A.B., J.D., M.A.T., Professor of LawBRADFORD VOEGELI, B.A., J.D., Clinical InstructorSUSAN L. WAYSDORF, B.A., J.D., Professor of LawJULIE WILSON, B.A., J.D., Adjunct Professor of Law

\\jciprod01\productn\d\dcr\16-1\ms161.txt unknown Seq: 6 11-FEB-13 12:30University of the District of ColumbiaDavid A. Clarke School of LawThe University of the District of Columbia Law Review (ISSN 1063-8601) ispublished once annually by students of the University of the District of Columbia DavidA. Clarke School of Law, 4200 Connecticut Avenue, N.W., Building 52, Suite 480,Washington, D.C. 20008. Manuscripts should be sent to the articles editor at this address.The opinions expressed in articles are those of the author(s) and do not necessarily reflectthe views of the University of the District of Columbia School of Law or the law review.Subscriptions are accepted for the entire volume. 1 Subscriptions are payable inadvance or billable. Domestic & Foreign: $25.00. Mailing Address: The University of theDistrict of Columbia Law Review, The University of the District of Columbia David A.Clarke School of Law, 4200 Connecticut Avenue, N.W., Building 52, Suite 480,Washington, D.C. 20008.Subscriptions are renewed automatically upon expiration unless the subscriber sendstimely notice of termination. All notifications of change of address should include oldaddress, including zip code, and new address, including zip code. Postmaster, send addresschanges to: The University of the District of Columbia Law Review, The University of theDistrict of Columbia David A. Clarke School of Law, 4200 Connecticut Avenue, N.W.,Building 52, Suite 480, Washington, D.C. 20008.Unless a claim is made for nonreceipt of law review issues within six months of themailing date, the law review cannot be held responsible for supplying those issues withoutcharge.All articles are copyrighted © 2012 by The University of the District of Columbia LawReview, except when otherwise expressly indicated. For all articles in which it holdscopyright, The University of the District of Columbia Law Review permits copies to bemade for classroom use, provided that: the user notifies The University of the District ofColumbia Law Review; the user has made such copies; the author and The University ofthe District of Columbia Law Review are identified; and proper notice of copyright isaffixed to each copy. Except when otherwise expressly provided, the copyright holder forevery article in this issue of The University of the District of Columbia Law Review grantspermission for copies of that article to be made for classroom use, provided that: the usernotifies the author and The University of the District of Columbia Law Review; the userhas made such copies; the author and The University of the District of Columbia LawReview are identified; and proper notice of copyright is affixed to each copy.Information for Contributors:The University of the District of Columbia Law Review invites submission ofunsolicited manuscripts. All manuscripts should be double-spaced and all footnotes shouldconform to The Bluebook: A Uniform System of Citation (19th ed.). As a matter of policy,the law review encourages the use of gender-neutral language. Please enclose an envelopewith return postage if you would like your manuscript returned after consideration.Send all correspondence to the Articles Editor at: The University of the District ofColumbia Law Review, The University of the District of Columbia David A. ClarkeSchool of Law, 4200 Connecticut Avenue, N.W., Building 52, Suite 480, Washington, D.C.20008. Manuscripts also may be sent to lawreview@udc.edu.1 To be cited as 16 UDC/DCSL L. REV. — (2012).

\\jciprod01\productn\d\dcr\16-1\edn161.txt unknown Seq: 7 11-FEB-13 12:30University of the District of ColumbiaLaw ReviewVolume 16 Fall 2012 Number 1Dear Reader,There is an unfortunate trend in legal scholarship to dismiss work that focuseson the lives of ordinary people and how they are affected by the law as insufficientlyscholarly. This unfortunate vision of legal scholarship conflates esotericismwith prestige and perpetuates a mode of legal thought that undervalues theconcerns of the most vulnerable in our society. It has been noted by no less thatChief Justice John Roberts, who has commented that “[if you] pick up a copy ofany law review that you see, the first article is likely to be, you know, the influenceof Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, orsomething, which I’m sure was of great interest to the academic that wrote it, butisn’t of much help to the bar.” 1The UDC Law Review has long sought to narrow the gulf between the work oflegal scholars and public interest legal practitioners by publishing academicallyrigorous work that applies the law to the struggle against social injustice. We areproud to present the latest iteration of that ongoing effort, volume 16 of the Universityof the District of Columbia Law Review. This volume brings together articlesthat emerged from the Fourth Annual Bellow Scholars Workshop, MergingAccess-to-Justice Work and Empirical Research, and the law review’s spring 2012symposium, Smartphones and the Fourth Amendment: The Future of Privacy inOur Hands. This volume also includes a freestanding article by D.C.Councilmember and Professor of Law Mary Cheh. Together, these works are anembodiment of the highest aspirations of the UDC Law Review: Top-level legalscholarship that is reflective of our law school’s mission of promoting social justiceand the public interest.Special thanks are due to the 2011-2012 Editorial Board, who began the processof compiling this volume of the law review and whose commitment to themission of the UDC Law Review is reflected in the high quality of this volume.We also owe a debt of gratitude to the faculty and administration of our lawschool—particularly our inspirational and tireless dean, Shelley Broderick, andour dedicated faculty advisors, Joe Tulman, William McLain, and Helen Frazer,for their constant support and guidance. Finally, thanks are due to the law re-1 Chief Justice John Roberts, Remarks at the Fourth Circuit Court of Appeals Annual Conference(June 15, 2011).

\\jciprod01\productn\d\dcr\16-1\edn161.txt unknown Seq: 8 11-FEB-13 12:30view’s intrepid staff of senior and associate editors: They are the workhorses ofthis publication, without whom it could not function.It is our hope that you find this publication to be an informative and thoughtprovokingsythesis of scholarship and activism.Sincerely,The 2012-2013 Editorial Board

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 1 11-FEB-13 12:31University of the District of ColumbiaLaw ReviewVolume 16 Fall 2012 Number 1FOREWORD: THE WORK OF THE BELLOW SCHOLARSJeanne Charn*Gary Bellow never, ever stopped fighting. . . . Without a trace of self-satisfactionfor his many accomplishments or self-pity for his many burdens, hekept pushing the rock of justice inch by inch up the hill that poverty andracism and hypocrisy have placed in the path of far too many people’shopes and dreams. 1 I. THE LEGACY OF GARY BELLOWPeople who knew and worked with my husband, Gary Bellow, remember himvividly. They recall a lawyer of uncommon skill, a master teacher, and, in the waythat David Wilkins describes above, a fierce and tireless advocate. They also recalla remarkable human being—a person of great warmth and confidence, genuinelyand deeply interested in others. The UDC Law Review describes the arc ofGary’s career 2 and touches on his pioneering role in building the Public DefenderService for the District of Columbia, California Rural Legal Assistance (CRLA)and clinical legal education, first at the University of Southern California andthen, from the early 1970s until his death in April 2000, at Harvard Law School. 3As Gary’s partner in work and at home for nearly thirty years, I also know thatengaging with Gary was not always soothing. He challenged himself most of all,but he also challenged those he cared about and respected, forcefully and at times* Senior Lecturer in Law, Harvard Law School; Director, The Bellow-Sacks Access to CivilLegal Services Project.1 David B. Wilkins, Gary’s friend and Harvard Law School colleague.2 GARY BELLOW: CLINICAL PIONEER AND TIRELESS ADVOCATE FOR SOCIAL JUSTICE, http://www.udclawreview.com/bellow-scholars/ (last visited Dec. 1, 2012).3 See Jeanne Charn, Service and Learning: Reflections on Three Decades of The Lawyering Processat Harvard Law School, 10 CLIN. L. REV. 75 (2003) (describing the development of the clinicalprogram and the neighborhood law center at Harvard Law School, which became sites for study andexperimentation in delivery of legal services).

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 2 11-FEB-13 12:312 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWuncomfortably. This is what drew people to Gary and what they desired to emulatein their own lives.Many readers of this symposium edition will have had no direct contact withGary Bellow and have heard little or nothing about his work. So I begin thisintroduction to the really exciting and valuable work of the Bellow Scholars bydevoting a few pages to the words of some of Gary’s colleagues, students, andclose friends whose recollections capture the energy, whole-hearted engagement,and relentless critique of all forms of complacency that Gary brought to hiswork: 4Gary’s penchant for constant criticism and reflection resulted from his understandingthat the kind of mitzvot that he had dedicated his life to, andthat those of us working for him were striving to carry out, required a lotmore than just good intentions. Complex skills, hard work, and high standardswere also required. Gary pissed off a lot of people when he harped onit, but that’s the lesson that he taught to the do-gooders in the legal servicesworld, and to his staff and his students: that a big heart alone was notenough. You had to put in the work if you wanted to be a good lawyer, ifyou wanted to change the world. 5Gary was not a saint. It’s not just that, unlike Mother Teresa, Gary liked togamble—to mention only the most mentionable. His friendship was notsaint-like either. Gary did not offer you a soft, enveloping embrace . . . Garydidn’t return your phone calls, sometimes he made you mad. . . . SometimesGary’s critical stance would hurt his friends and allies, even hurt the peoplehe loved. But the hurt was the pain of his constant challenge, a challenge hedemanded as much of himself as he did of others. . . . To live the kind of lifethat Gary lived, we wouldn’t have to represent Black Panthers or createlegal services for the poor. We wouldn’t have to have the incredible couragewith which he faced his heart transplant and its aftermath. We would simplyhave to realize that no aspect of our lives, no human interaction, no problemwe face has to be treated as routine. Everything can be engaged; everythingcan be transformed. 6I have constantly marveled at Gary’s ability to incorporate his moral andpolitical commitments into his lawyering. . . . [One] cold Friday beforeChristmas a tenant in a nearby three-decker came to say that she had noheat. [M]ost lawyers would . . . respond, “There’s nothing I can do to helpyou.” . . . A few would probably help by trying to get a TRO ordering the4 MEMORIAL CELEBRATION OF MAY 25, 2000, http://www.garybellow.org/Memorial/cover.htm(last visited Dec. 1, 2012).5 David Grossman, Gary’s friend, former student, and colleague at the Legal Services Center.6 Gerald Frug, Gary’s friend and colleague at Harvard Law School.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 3 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 3landlord to restore heat. . . . Gary took a different approach. He startedcalling plumbers . . . [and] found one who would talk to him. I forget whathe said, though I am sure he mentioned Christmas, the cold and the client’syoung children . . . he didn’t say anything about the client being on welfare.. . . Then just when I thought the conversation was over Gary said tothe plumber, “There’s one more thing. You might not get paid.” . . . Icouldn’t believe that, having achieved this miracle of persuasion, he wasgoing to risk blowing everything by making the plumber aware of this fact.There was a pause that seemed to me to last a long time, then the plumbersaid “I know.” He went out and fixed the boiler. Of all the vicarious thrills Ifelt at Gary’s many successes, none was stronger than the one I felt whenthe plumber said “I know.” It wasn’t enough for Gary that the plumber dothe right thing. Gary wanted to give him an opportunity to do it for the rightreason, as an act of charity or solidarity rather than as an effect of Gary’smanipulative capacities. Gary was no patsy. He could be as tough with adversariesas any lawyer I’ve known. But he had an extraordinary capacity torecognize and respect people’s humanity, even when they were sitting onthe other side of the table. 7Gary was a teacher in practice at the D.C. Public Defender Service and atCRLA long before he entered the academy. In the best traditions of the professionhe taught from his own practice in the law office more than in the classroom,though he had an uncanny ability to bring the strategic, ethical, and moral dilemmasand challenges of law practice into the classroom. His concept of the clinicalmethod involved, at its core, expert practitioners working shoulder to shoulderwith novices in a real world professional setting—directing, advising, supporting,and deconstructing the novice’s early experiences in the lawyer role. Expert practitionerswould, in turn, open their own practice to observation, questioning andcritique by their mentees and, in complete candor and with all the precision theycould muster, critically assess both the instrumental and the expressive dimensionsof their lawyering work. 8 This was the learning process that we developedand practiced at the Legal Services Center. The following reflects one student’s7 Bill Simon, Gary’s friend, former student, and a member of the founding faculty at the LegalServices Institute. The Institute—the neighborhood law office we founded at Harvard as a center forexperimentation in the delivery of legal services—had several names throughout its history. Originallythe Legal Services Institute, the Institute was renamed the Hale and Dorr Legal Services Center in1993 after the law firm provided support for a new building. Following a 2004 merger between Haleand Dorr and Wilmer, Cutler & Pickering, the Center began a third iteration as the WilmerHaleLegal Services Center. See MEMORIAL CELEBRATION, supra note 4; see also THE WILMERHALE LE-GAL SERVICES CENTER, http://www.law.harvard.edu/academics/clinical/lsc/index.htm (last visited Dec.1, 2012).8 Gary Bellow, On Teaching the Teachers: Some Preliminary Reflections on Clinical Educationas Methodology, in CLINICAL EDUCATION FOR THE LAW STUDENT: LEGAL EDUCATION IN A SERVICESETTING 374, 374 (Council on Legal Educ. for Prof’l Responsibility ed., 1973).R

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 4 11-FEB-13 12:314 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWexperience of the Lawyering Process course at the Center, on this occasion jointlytaught by Gary and me. 9I first met Gary in September 1998, when I enrolled in the “Lawyering Process”course he co-taught with his wife, Jeanne Charn, at the Legal ServicesCenter in Jamaica Plain. . . . That year-long class was transformative formany of us. . . . the curriculum included legal ethics, negotiation strategy,professional development, peer evaluation of clinical work product, incorporationof technology into practice, and more—but also by the manner inwhich they set themselves to the daunting task. Their appetite for criticaldiscussion was voracious. Their willingness to cast away assumptions orstanding models in the face of convincing challenges was unflagging. Theircommitment to standards of excellence belied the rote critiques typicallyleveled at legal services theory and practice. At times the classroom felt likea laboratory, albeit an unusual one in that Gary and Jeanne were right therewith us mixing it up at the workbench. Gary provided the closing commentsto the students and staff who participated in orientation weekend at theLegal Services Center. . . . It was a long day of training, and we were alleager to burst outside and enjoy what remained of a beautiful day. Withoutfanfare and without warning, Gary’s brief remarks took our breath away.He spoke about moral hazards, ethical dilemmas, and the great seriousnesswith which we were obliged to pursue our clinical work. . . . Even afteralmost four decades of direct service legal advocacy, the alliances Gary builtwith his clients retained their vitality for him and their hold on him. . . . Henever shied from the challenges at hand, never provided empty reassurancesthat just doing the work was doing good enough, never fronted thathe had resolved the various tensions in operation. What he did do was to bereal and critical and generous and inspirational. 10The common threads of these recollections and vignettes are that Gary movedpeople to action and, by his example, showed us how to test and resist perceivedconstraints. Gary’s legacy is that he made you feel and believe that you could bemore competent, perceptive, generous, and, in a deep sense, ethical and openheartedthan you would have imagined possible.II.THE BELLOW SCHOLAR PROGRAMThe core idea of the Bellow Scholar Program was that, over time, we mightdevelop a collaboration among clinicians interested in a more rigorous explora-9 Gary and I co-taught the full-year course during the 1998-99 academic year because Gary wasrecovering following his April 1998 heart transplant.10 Sophie Bryan, Gary’s and my student in the 1998-99 Lawyering Process course and Gary’sstudent in the 1999-2000 Medical-Legal Connection: A Patient’s Perspective course at the Center.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 5 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 5tion of systemic problems that we identified in our practice and teaching. I talkedwith clinical colleagues who shared Gary’s and my interest in clinics as sites forempirical investigation and study. A more developed concept of an activist communityof learners that included both clinicians and social science researchersbegan to emerge. Gary would have signed up for such an effort. He was an avidreader of the Law and Society Review and he spoke often of the need for empiricalresearch on the actual functioning of lawyers and legal institutions. I came tobelieve that the best way to honor Gary’s legacy was to build a capacity for rigorousanalysis and investigation, carried out in a community of activists willing tolearn from each other and from other disciplines, all with the goal of addressing aproblem of significance in the everyday lives of low- and moderate-incomepeople.Fortunately, Antoinette Sedillo Lopez was Chair of the Association of AmericanLaw Schools (AALS) Clinical Section in the year following Gary’s death. Shehad an immediate, positive response to the Bellow Scholar idea. Antoinette’sleadership and guidance on how best to institutionalize the project and navigateSection and AALS approval processes were crucial to translating the idea into aprogram. She revived an existing but inactive Section Committee on Lawyeringin the Public Interest and tasked the committee with implementing the program.Her appointments to the small working committee included two people who hadworked directly with Gary: Bea Moulton, co-author with Gary of The LawyeringProcess, and Kim O’Leary, who had been a full year, full-time student in the firstyears of the Legal Services Center’s operation. 11We announced the program and solicited the first round of applications in thefall of 2002. We didn’t know if anyone would apply and we had nothing to offerbut the designation of “Bellow Scholar” and the willingness of a circle of likemindedcommittee members and clinicians to stay engaged with their projectsand to convene at the annual spring clinical conference to offer our advice andsupport. We decided that we were not looking for the best single proposal butwould name one, two, or several Bellow Scholars depending on how many wellthought-outproposals we received. We designated three Bellow Scholars in thefirst cycle, all of whom happened to have been Gary’s students (Jeff Selbin andSophie Bryan) or individuals who had worked and consulted with him over a longperiod of time (Doug Smith).In its tenth year, the Bellow Scholar Program is thriving. The Committee onLawyering in the Public Interest continues to administer the program, with newco-chairs drawn each year from the previous cadre of Bellow Scholars. The Com-11 See Charn, supra note 3, at 97-99 (describing the combined clinical and poverty law curricu- Rlum carried out on-site in the clinical law office in the Jamaica Plain neighborhood of Boston).Twenty-four students spent the entire third year of law school practicing in the clinical office andtaking classes relevant to lawyering and substantive areas of practice. Gary and I and the faculty andstaff attorneys at the Center taught the courses and practiced law with and supervised the students.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 6 11-FEB-13 12:316 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWmittee designates new Bellow Scholars every two years. So far, five cycles haveresulted in eighteen Bellow Scholar projects. 12 The sixth cycle of solicitations wasin the fall of 2012. We introduce new Bellow Scholars at the clinical luncheonduring the AALS annual meeting in January and new and past Bellow Scholarswith active projects convene at the annual spring clinical section conference forsubstantive discussion of works in progress. The section events are always open toanyone attending the clinical conference.In September 2007, Bellow Scholar Brenda Blom organized and hosted a twodayconference at the University of Maryland. Invitees included Bellow Scholars,clinicians interested in empirical research, and social science researchers workingwith Brenda, with other Bellow Scholars, or whose scholarship focused on deliveryof legal services, the legal profession, or social justice lawyering. This interdisciplinaryconference was so successful that we were able to obtain financialsupport from the Clinical Section for a second conference in 2008 hosted by StanfordLaw School. When the University of Pennsylvania proposed to host a conferencein Fall 2009, we realized that we had institutionalized an annual, two-dayfall conference in addition to a two- to three-hour meeting at the annual ClinicalConference.The UDC conference in November 2010 advanced the Bellow Scholar agendain two important ways. First, the hosts and planning committee strengthened inter-disciplinaryparticipation by inviting a senior international legal services researcherfrom the Legal Services Research Centre (the policy research andanalysis division of legal services in England and Wales), the director of the NationalScience Foundation’s Law & Social Sciences Program, and representativesfrom the new Access to Justice Initiative at the Department of Justice. The secondimportant contribution of the UDC conference was the invitation to BellowScholars to submit articles based on their research for publication in this symposiumvolume of the UDC Law Review. This year the University of California atIrvine hosted the fall conference, and, following the structure of the UDC conference,the University of California at Irvine Law Review has invited submission ofpapers by Bellow Scholars for publication.Organizers of the fall 2011 Bellow Scholar Conference decided to meet in NewYork City in conjunction with the annual Clinical Law Review Writer’s Workshop.Going forward, the Bellow Scholar Conference will be held in conjunctionwith the Clinical Law Review Workshop in odd-numbered years (the fall 2013conference will be in New York City), and at host law schools in even-numberedyears (the 2014 conference will be held at the University of Notre Dame LawSchool).12 Mary Spector, From Representation to Research and Back Again: Reflections on Developingan Empirical Project, 16 UDC/DCSL L. REV. 55, 69 n.70 lists all of the Bellow Scholars and theirprojects. There are more than eighteen Bellow Scholars because some projects are partnerships.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 7 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 7Most conference participants, both clinicians and social scientists, attend regularly,and this continuity promotes deeper understandings of ongoing researchand produces a common knowledge base that grows from year to year. The commoncore of participants also contributes to an atmosphere of familiarity andtrust that is conducive to frank exchange and debate. 13 The social scientists whoattend may be partners in Bellow Scholar Projects or may have scholarly interestsin lawyers, institutions of remedy, or modes of dispute resolution. As a result,participating clinicians (who are not all Bellow Scholars) learn how to work on aninter-disciplinary basis with researchers in sociology, anthropology, economics,and statistics.However, the most remarkable dimension of the Bellow Scholar Program isthat it is sustained by the interest of participants, the quality of the projects, andthe pleasure of working collaboratively across disciplines on issues of consequencefor our clients.III.THE WORK OF TWO BELLOW SCHOLARSThis symposium volume offers two interesting and important papers (a thirdBellow Scholar paper will be published in the next volume of the UDC LawReview). All are products of interdisciplinary empirical research relevant to acorner of the legal system where need or circumstance bring thousands of peopleinto contact with law, its processes, actors, and, ultimately, its outcomes. Bothresearch papers reflect the Bellow Scholar criteria of “important efforts to improvethe quality of justice” in the author’s respective communities. 14The article by Enrique S. Pumar and Faith Mullen concerns the central panelthat adjudicates unemployment insurance (UI) appeals in the District of Columbia.The crux of the underlying problem is that 3000 cases are filed each year, butfree- or low-cost representation is available for fewer than 600 claimants—lessthan twenty percent of the claimants who seek review. 15 This scenario is all toocommon in courts and administrative agencies throughout the country. Demandfor legal assistance far outstrips the supply of free or affordable representation.In such circumstances claimants have no choice but to represent themselves. Theresearchers, with Professor Mullen’s clinical law students, carried out a survey ofself-represented claimants with the goal of learning if unrepresented parties perceivedthat they were at a disadvantage. The interview instrument also includedinquiries about claimants’ understanding of the appeal process and the issues onwhich the administrative law judge would focus. The findings indicate that most13 Id. at 8-70. In part IV of her article in this volume, Mary Spector describes the value ofparticipation in the Bellow Scholar Program to her project.14 Enrique S. Pumar & Faith Mullen, The Plural of Anecdote is Not Data: Teaching Law StudentsBasic Survey Methodology to Improve Access to Justice in Unemployment Insurance Appeals, 16UDC/DCSL L. REV. 17 (2012).15 Id. at 24-25.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 8 11-FEB-13 12:318 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWclaimants believed they would have been better off with counsel, and manylacked a clear understanding of either the process or the contested issues. Moreover,many had little idea how to advocate for themselves with respect to the issuesthey did understand. The perceptions of claimants were similar to thegeneral views expressed by at least some of the ALJs and advocates involved inUI appeals: Many claimants would benefit from representation. 16The researchers acknowledge that the high volume of UI appeals relative tolegal services resources makes it “impossible” for every claimant to be representedat a hearing. Fortunately, recent rigorous evidence suggests that some—perhaps many—claimants may be able to effectively self-represent. 17 In a randomizedcontrolled trial in which the “treatment” group was offered representationin a UI hearing and the control group was not offered representation, thestudy showed no difference in success rates at hearing between the control andtreatment groups. 18 The study was inconclusive regarding the effect of actual representationon UI eligibility appeal outcomes. 19 However, the claimants whowere offered assistance experienced an average two-week delay in time to outcomeas compared to control group claimants. 20 Put bluntly, offers of representationproduced no better results but imposed a cost—a cost that validated theconcerns of advocates and ALJs that “the presence of more lawyers could complicatehearings and draw them out unnecessarily.” 21As access to justice and other social justice issues become the subject of moreand better empirical analysis, clinicians and advocates must become sophisticatedreaders and interpreters of empirical study results. Regarding the UI study inBoston and the experience of UI appeals in the District, for example, there maybe characteristics of the UI appeal process, the advocacy community, the jobmarket, or the demographics of the labor market in Boston that don’t exist inWashington D.C. These factors may account for the finding that offers of representationdid not impact UI appeal outcomes in Boston. 2216 Id. at 22.17 D. James Greiner & Cassandra Wolos Pattanayak, Randomized Evaluation of Legal Assistance:What Difference Does Representation (Offer and Actual Use) Make?, 121 YALE L.J. 2118(2012).18 Id. at 2152-58.19 Id. at 2166-70.20 Id. at 2153-58.21 Pumar & Mullen, supra note 14, at 45. R22 See Jeffrey Selbin, Jeanne Charn, Anthony Alfieri & Stephen Wizner, Service Delivery, ResourceAllocation and Access to Justice: Greiner and Pattanayak and the Research Imperative, YALELAW JOURNAL ONLINE (July 30, 2012), http://yalelawjournal.org/the-yale-law-journal-pocket-part/scholarship/service-delivery,-resource-allocation,-and-access-to-justice:-greiner-and-pattanayak-andthe-research-imperative/(supporting a strong empirical research capacity while recognizing the dangersof misreading or misuse of data and study outcomes).

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 9 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 9More refined studies comparing similar legal cases in different regions mayprovide a much clearer picture of how much and what type of assistance 23 bestmatches the needs of particular clients. 24 The sample in the Boston UI study wasnot large enough to draw any conclusions about whether age, language ability, orother claimant characteristics correlated with better outcomes when representationwas available. What we can be certain of is that empirical study, of the sortundertaken by Faith and Enrique, is critical to effectively targeting scarce resources.Their preliminary study sets the stage for follow-up research that lookstoward reforms that may make the UI hearing process more accessible for selfrepresentedclaimants. 25Mary Spector’s paper on the pitfalls confronting consumers dealing with “debtbuyers” is a wonderful example of ferreting out systemic disadvantage and bias inthe seemingly simple cases that didn’t initially appear to be challenging even fornovice clinic students. 26 Mary’s interest was piqued by what appeared to be apattern of creditors dismissing court claims as soon as a debtor’s attorney filed anappearance. Further investigation revealed “a larger pattern in which repeatplayers appeared to flout rules of evidence, procedure and professional responsibilityto transform their delinquent credit card accounts into legally enforceablejudgments.” 27 Mary then consulted with an empiricist and developed a plan toinvestigate whether the same patterns appeared in a larger, random sample ofcases. Her careful work documented not only similar patterns but evidence ofviolations of Texas consumer protection laws that might have afforded debtorsboth a defense and affirmative claims. 28On September 13, 2012, Mary testified on “Examining the Uses of ConsumerCredit Data” before the U.S. House of Representatives Subcommittee on FinancialInstitutions and Consumer Credit. Thus, as the title to her paper indicates,Mary and her students began with representation, which led to research and backagain—not only to representation but to a role in reforming debt collection practicesto better protect vulnerable consumer “one-shot” players.23 Trial courts in many states now offer on-site information and assistance, including an opportunityfor a brief consultation with a volunteer “lawyer of the day”; many courts also make accommodationsfor litigants who have opted for “discrete task” or “unbundled” legal services. See SELF-REPRESENTED LEGAL NETWORK, http://www.srln.org (last visited Dec. 1, 2012) (describing a creativeand active coalition in support of assisted self-representation); see also AMERICAN BAR ASSOCIATIONSTANDING COMMITTEE ON DELIVERY OF LEGAL SERVICES, http://www.americanbar.org/groups/delivery_legal_services.html(last visited Dec. 1, 2012) (collecting exhaustive reports on innovative approachesto affordable legal assistance).24 Most administrative tribunals permit non-lawyer representation, which may be less costlythan appointed counsel; non-lawyer volunteers might also play a helping role.25 Pumar & Mullen, supra note 14, at 46-47. R26 Spector, supra note 12, at 57-60. R27 Id. at 60.28 Id. at 59-60.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 10 11-FEB-13 12:3110 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWIV.EMPIRICAL SCHOLARSHIP AND THE FUTURE OF CLINICALLEGAL EDUCATIONLaw schools and legal scholars focus almost exclusively on the most prestigiousappellate courts that make and interpret law. They pay little attention to theday-to-day, real world functioning of critically important trial courts and administrativetribunals that are the starting and ending point for many thousands ofclaims that pass through the legal system every year. As we have seen from thepapers in this volume, these courts and agencies do not typically function like lawschool moot courts or trial advocacy simulations. As Gary Bellow put it, “[i]f wewent around the corner from most law schools—into the lower courts—we wouldfind the two-minute examination, the fifteen-minute trial, the law of substantialjustice—without rules and often without limits.” 29Law school clinics, clinicians, and their students, like Mary Spector and herstudents, routinely interact with the private bar and government lawyers. Theypractice in lower trial courts and administrative agencies. As a result, they are ina position to investigate and document the actual operation of courts, agenciesand the bar itself. Clinicians have access to researchers and research expertisewithin the larger universities of which law schools are a part. 30 All of the BellowScholars have been able to recruit expert research partners willing to collaborateon their projects.In the 1960s and 1970s, when modern law school clinics and federally fundedlegal services began, empirical research had a role in their operation. For example,researchers at the American Bar Foundation pioneered studies of legal needsand developed an invaluable report on the demographics and employment patternsof the bar. 31 In its first years, the Legal Services Corporation funded empiricalresearch projects relevant to hotly debated policy issues. 32 This early29 Gary Bellow, The Limits of Humanistic Law Teaching, 53 N.Y.U. L. REV. 644, 645 (1978).30 See Jeanne Charn and Jeffrey Selbin, The Clinic Lab Office, 2013 WIS L. REV (forthcoming2013) (arguing for an empirical research effort from law school clinics with substantial client servicecomponents).31 The late Barbara Curran’s work in the 1970s set the gold standard on legal need research.See, e.g., BARBARA A. CURRAN, THE LEGAL NEEDS OF THE PUBLIC: THE FINAL REPORT OF A NA-TIONAL SURVEY (1977); see also Barbara A. Curran, Research on Legal Needs: Patterns of Lawyer Useand Factors Affecting Use, in INNOVATIONS IN THE LEGAL SERVICES: RESEARCH ON SERVICE DELIV-ERY 9, 9 (Erhard Blankenburg, ed., 1980). Beginning in the 1950s, Curran conceived of and, until herdeath in 2010, produced twice each decade, a pioneering state-by-state statistical demographic overviewof the legal profession known as the Lawyer Statistical Report. See Lawyer Statistical Report,AMERICAN BAR ASSOCIATION, http://www.americanbarfoundation.org/publications/LawyerStatisticalReport.html(last visited Jan. 7, 2013).32 ANTHONY CHAMPAGNE, LEGAL SERVICES: AN EXPLORATORY STUDY OF EFFECTIVENESS 3(1976); see also STUART NAGEL, MINIMIZING COSTS AND MAXIMIZING BENEFITS IN PROVIDING LE-GAL SERVICES TO THE POOR 1 (1973) (discussing how to use empirical analysis to optimize the allocationof scarce OEO resources between individual casework handling and law reform efforts). Themost controversial of these studies compared full-time staffed offices to a private bar “judicare” deliv-

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 11 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 11empirical tradition in legal services waned as political assaults on the programgrew. As a result, for more than thirty years, from the Reagan administration tothe present day, the Legal Services Corporation has lacked an internal capacity tocarry out empirical research. 33However, in recent years, with leadership from the American Bar Foundation,34 we have seen a renewed interest in a national program of empirical researchon civil legal assistance. At the most basic level there is a vast knowledgegap about the amount and nature of legal services supported by a much larger butalso a much more diverse funding base. Decisions about who gets what types ofservice are made locally and data are sparse and inconsistent. On the positiveside, the last ten to fifteen years has seen a proliferation of innovations in servicedelivery by legal service lawyers, the private bar, and the lower trial courts thathas produced many promising approaches, but almost no information on howwell these new modes of legal service delivery work for claimants. 35 We needmuch better information to make the best use of scarce resources. Studies andassessments of the sort carried out by Faith Mullen, Enrique Pumar, and theirstudents are good starting points for developing baseline information againstwhich the impact of existing and future reforms can be measured.Most important, however, empirical study aids us in continuously challengingour most firmly held convictions about our work. A good example is the studymentioned above that compared results for unemployment insurance claimantsery approach. SAMUEL J. BRAKEL, FREE LEGAL SERVICES FOR THE POOR—STAFFED OFFICE VERSUSJUDICARE: THE CLIENT’S EVALUATION (1973), reprinted in 2 WIS. L. REV. 532 (1973).33 In contrast to the United States, peer nations that guarantee access to lawyers to a third ormore of their populations all have ongoing research programs. The largest legal aid programs in theworld gather annually to present and discuss empirical research related to delivery of legal services. Inodd-numbered years, the International Legal Aid Group (ILAG) sponsors a two and a half day byinvitationconference that involves dozens of empirical research paper presentations. See INTERNA-TIONAL LEGAL AID GROUP, http://www.ilagnet.org/ (follow hyperlinks under “ILAG Conferences”menu) (last visited Jan. 7, 2013) (collecting conference agendas and papers from the 2001, 2003, 2005,2007, 2009, and 2011 ILAG conferences). Through 2012, the UK’s Legal Services Research Centre hashosted a similar empirical research conference. See LEGAL SERVICES RESEARCH CENTRE, http://www.justice.gov.uk/about/lsrc (last visited Jan. 7, 2013). I have attended these annual research conferencessince 2001, and what I have learned at these incredibly valuable meetings in large part inspired theBellow Scholar Program.34 REBECCA SANDEFUR LEADS ACCESS TO CIVIL JUSTICE WORKSHOP, http://www.americanbarfoundation.org(last visited Jan. 7, 2013). The American Bar Foundation has hired RebeccaSandefur as a Senior Research Social Scientist to lead its access to justice research initiative. SeeREBECCA L. SANDEFUR, http://www.americanbarfoundation.org/about/abf-staff/116 (last visited Jan.7, 2013).35 See Jeanne Charn, Legal Services for All: Is the Profession Ready?, 42 LOY. L.A. L. REV.1021, 1024-51 (2009) (describing the diversification in the legal services landscape); see also JeanneCharn, Celebrating the Null Finding: Evidence-Based Strategies for Access Without Lawyers, 122 YALEL. J. (forthcoming 2013) (arguing for maximum diversity in modes of accessing legal assistance, apreference for lawyer-less or lawyer “lite” approaches, and for empirical study to inform how legalservice providers guide consumer choice).

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 12 11-FEB-13 12:3112 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWwho were offered representation with results for claimants who were not offeredrepresentation—a study, by the way, that was conducted in a law school clinic. 36Many clinicians and legal services providers were astonished at the results becausethey were contrary to the bar’s deeply held belief that lawyers are neededto achieve good outcomes. In this instance, not only did claimants not offeredrepresentation have similar rates of success, reaching them took them less time! 37While it would be foolish for a clinic to withdraw from representation of UIclaimants based on one study, the research warrants rethinking of the conventionalwisdom that lawyers always add value, and suggests possibilities for effectivelyhelping claimants by offering alternatives to lawyer-centric services. 38Another realm in which a large body of empirical evidence is changing fundamentalassumptions about legal service delivery deals with what have come to becalled “justiciable problems”—problems that have “legal aspects, legal consequences,and (potentially) legal solutions” but which “may never be understoodor treated as a legal problem.” 39 The conventional wisdom, which is now beingchallenged by decades of in-person interviews, is that, but for cost barriers, peoplewith such problems would be lined up in legal services waiting rooms seekingrepresentation. 40 In a 2009 article, 41 Rebecca Sandefur compared the findings ofthe English and Welsh Civil Justice Survey 42 with findings of an earlier nationalsurvey in the United States. 43 She found that the U.S. and the U.K. were similarin that the experience of justiciable problems was widespread not only amongpoor people but among working- and middle-class people, most of theseproblems never make it to lawyers or to any part of the legal system, and cost isusually not the main barrier that prevents these problems from reaching the legal36 Greiner & Pattanayak, supra note 17. R37 The legal group blog Concurring Opinions sponsored an online symposium discussing Greinerand Pattanayak’s study of the impact of legal representation on case outcomes. ARCHIVE FOR THE‘SYMPOSIUM (WHAT DIFFERENCE REPRESENTATION)’ CATEGORY, http://www.concurringopinions.com/archives/category/representation-symposium (last visited Jan. 7, 2013). The exchanges amongsymposium participants are representative of the range and intensity of views on the study’s findings.38 Unbundled or discrete task assistance is a service innovation that is now accepted in manystates. See FORREST S. MOSTEN, UNBUNDLING LEGAL SERVICES: A GUIDE TO DELIVERING LEGALSERVICES A LA CARTE (2000); see generally Jeanne Charn, Celebrating the Null Finding, supra note 35.R39 Rebecca L. Sandefur, The Fulcrum Point of Equal Access to Justice: Legal and Non-LegalInstitutions of Remedy, 42 LOY. L.A. L. REV. 949, 951 (2009).40 See William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformationof Disputes: Naming, Blaming, Claiming . . ., 15 LAW & SOC’Y REV. 631 (1981) (positing that amulti-stage process results in only a small fraction of potential claims ever reaching a lawyer or a legalinstitution).41 Sandefur, supra note 39. R42 PASCOE PLEASENCE, CAUSES OF ACTION: CIVIL LAW AND SOCIAL JUSTICE (2006).43 AMERICAN BAR ASSOCIATION CONSORTIUM ON LEGAL NEEDS AND THE PUBLIC, LEGALNEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994), available at http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/legalneedstudy.authcheckdam.pdf.

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 13 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 13system. 44 Her paper focused on differences in response that depend on differencesin “institutions of remedy.” In the U.S., where free legal assistance is scarceand third-party non-legal institutions of remedy are underdeveloped and notwidely publicized, people facing justiciable problems have basically a binarychoice: get legal advice or do nothing. In the U.K., however, poor and middleincome people are not only guaranteed access to legal assistance from a solicitor,they can turn to well-branded and trusted non-legal public institutions, such asthe Citizens Advice Bureau or local councils.Sandefur looked in detail at people facing housing and personal financeproblems and found distinct national differences in the way they responded. Inthe U.S., about twenty-five percent of people did nothing, twenty-seven percentreported seeking legal advice at some point, and eight percent sought advice fromnon-legal third parties, such as a consumer agency, a local official, a communitygroup, or a union. 45 In the U.K., the pattern was quite different. In the U.K., onlyfive percent of people with housing and personal finance issues did nothing, andonly ten percent turned to solicitors or the formal legal system. Thirty-seven percentturned to non-legal third-party providers of advice. 46 It is important to keepin mind that, unlike in the U.S., in the U.K. more than forty percent of the populationis guaranteed free or low-cost access to legal services. Notwithstanding thiscategorical guarantee of access to legal assistance, nearly four times as many peoplechose a non-legal advice alternative. In the U.S., where there is no guaranteedaccess to legal services for poor people and no subsidized attorneys for workingclassand moderate-income people, more people turn to lawyers. Sandefur concludesthatturning to law should not be seen as the exclusive or even the predominantmeans through which people in market democracies attempt to handle theircivil justice problems. Rather, turning to law should be seen as part of arichly textured terrain of possible responses and remedies. If we wish toexpand or—even more ambitiously—to equalize access to justice, we mustlook to the breadth of this terrain. 47The stunning bottom line of this now-substantial body of empirical research 48is this: If we want to increase access to legal assistance, we should not think onlyin terms of more lawyers, but should also develop reliable and readily accessiblenon-legal advice givers and other less lawyer-centric services. Legal Services44 Sandefur, supra note 39, at 953. R45 Id. at 970.46 Id. at 971.47 Id. at 955.48 Herbert M. Kritzer, To Lawyer or Not to Lawyer: Is That the Question?, 5 J. EMPIRICALLEGAL STUD. 875, 879 fig.2, 896-98 figs.12, 13 & 14 (2008) (reviewing legal needs studies conducted inAustralia, Canada, Japan, the Netherlands, New Zealand, the United States, England, and Wales).

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 14 11-FEB-13 12:3114 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWpolicymakers in the U.K. have, based on this research, substantially expanded exante, or “front end,” advice services, 49 and found in subsequent surveys a reductionin people who take no action, from twenty percent to ten percent. 50 Work ofthe sort Faith Mullen and her colleagues are involved in complements such frontendstrategies by reforming agencies to be more self-help friendly.More than thirty years ago Gary Bellow presciently urged the legal servicescommunity to pursue similar policies, not because he was resigned to inability toachieve some attorney “gold standard” but because he was concerned that eventhe most dedicated legal aid professionals would come to define the “daily callsof individuals for . . . ‘corrective justice’” based on their own needs and valuesrather than those of their clients. He noted thatI find myself more and more interested in efforts to decrease the centralityof lawyers — or, at least, lawyers playing traditional roles — in the legal aidsystem. A large (very large) increase in (1) paid, community based lay advocates,(2) “pro se clerks” and other persons . . . whose job it is to facilitateeither negotiation or adjudication without lawyers, (3) the number of forumsin which the unrepresented or those represented by lay persons wouldfind a responsive setting, (4) the training . . . of lawyers to perform supportroles as a back-up to self-help lay advocacy efforts, (5) systems which regularizethe handling of particular kinds of cases, and (6) public education . . .designed to increase law knowledge and sophistication, would, I believe,make some dent in the ways the current system excludes and channelsgrievances. It might also permit a much more serious debate . . . on thenature of legal “expertise,” the functions of legal training, and the roleplayed by the legal profession and professionalism . . . in perpetuating theproblems they have now publicly undertaken to solve. 51The empirical dimension of the work of the Bellow Scholars emphatically doesnot answer all questions or resolve tough policy choices about delivery of legalservices, but it does support a healthy pragmatism, provide a gauge for assessingwhether our interventions are making a positive difference for the clients andcommunities we serve, and offer tools for staying in touch with the needs, preferences,and perspectives of those we seek to help. Through their investigations ofthe actual functioning and impact of law in people’s everyday lives and their focuson that “intersection of civil law and adversity,” 52 the Bellow Scholars partici-49 See Gary Bellow, Legal Services in Comparative Perspective, 5 MD. J. CONT. LEGAL ISSUES371, 375 (1994) (arguing for adoption in the U.S. of Canadian and European models of justiciableproblem resolution that emphasize front-end advice services).50 PLEASENCE, supra note 42, at 129 (examining much broader categories than Sandefur). R51 Gary Bellow, Legal Aid in the United States, 14 CLEARINGHOUSE REV. 337, 344 (1980).52 Rebecca L. Sandefur, The Importance of Doing Nothing: Everyday Problems and the Responsesof Inaction, in TRANSFORMING LIVES: LAW AND SOCIAL PROCESS 112, 113 (Pascoe Pleasenceet al. eds. 2007).

\\jciprod01\productn\D\DCR\16-1\DCR106.txt unknown Seq: 15 11-FEB-13 12:31FOREWORD: THE WORK OF THE BELLOW SCHOLARS 15pate in and carry on Gary Bellow’s legacy of hard work, high standards, andcritical self-reflection. Most important I hope, as I am certain Gary would havehoped, that an empirical disposition serves as an antidote to complacency andperceived constraints, freeing us to attack hard problems in new, perhaps unorthodoxways until we have good evidence that inch by inch, the problem hasyielded, and we start again, a little further down the road.

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\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 1 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA: 1 TEACHINGLAW STUDENTS BASIC SURVEY METHODOLOGY TOIMPROVE ACCESS TO JUSTICE IN UNEMPLOYMENTINSURANCE APPEALS*Enrique S. Pumar** and Faith Mullen***INTRODUCTIONThis project has its origins at the University of the District of Columbia DavidA. Clarke School of Law (UDC). In March 2008, UDC hosted a meeting betweenthe Pro Bono Committee of the District of Columbia Office of AdministrativeHearings, and clinical professors and pro bono coordinators from several lawschools in the District of Columbia. At that meeting, the Pro Bono Committeeinitiated a dialogue about how to better meet the needs of self-represented individualswho appear before the Office of Administrative Hearings (OAH) andextended an invitation to attend some OAH hearings. Professor Mullen acceptedthat invitation and between March and September 2008 attended more than fortyhearings. Initially, the purpose of attending hearings was to identify case typesthat might be suitable for the law students enrolled in the General Practice Clinicat The Catholic University of America law school. It soon became clear to ProfessorMullen that a large number of individuals who appear before the OAH are1 Edith Greene, A Love-Hate Relationship, 18 JUST. SYS. J. 99, 100 (1995).* Many people helped make this project possible. We are particularly grateful to Principal AdministrativeLaw Judge Ann Yahner for her insights and practical assistance, to the administrative lawjudges who allowed us to observe their hearings and to better understand the issues around selfrepresentationin UI appeals, to Administrative Law Judge Elizabeth Figueroa for all her assistancewith project management, to the OAH Pro Bono Committee for their outreach efforts, and to thestaff of the Office of Administrative Hearings, who graciously endured our intrusion into their worklives and made us feel welcome. This work could not have been completed without the resourcefulnessand diligence of the students from The Catholic University of America Columbus School of Law(CUA) General Practice Clinic who drafted and administered the survey: Eric Berkley, Brynne Bisig,Erin Hughes, Laura Kakuk, and Catherine Knight. We also appreciate the assistance of other studentswho volunteered to help with the project when we most needed their help: Anna Bristle, AngusCrawford, Edward Bertram, and Nick Liapis. Special thanks are owed to Mark Herzog and MaureenSyracuse of the D.C. Bar Pro Bono Program, Professor Jeffrey Gutman of The George WashingtonUniversity Law School, Courtney Chappell of the Employment Justice Center, Tonya Love of theClaimant Advocacy Program, and Charles Ray of the Employer Advocacy Program for sharing theirexpertise. We appreciate the able assistance of CUA Law Librarian Emily Black. Cara Swan providedinvaluable editorial assistance. Finally, we are indebted to the Bellow Scholars Committee for selectingthe project and for its emphasis on the use of empirical research to improve access to justice.Support for this research was provided by a CUA Summer Research Grant.** Enrique S. Pumar, Ph.D., is an Associate Professor of Sociology and Faculty Fellow at theInstitute for Policy, Research and Catholic Studies at The Catholic University of America.*** Faith Mullen, J.D., is an Assistant Clinical Professor at The Columbus School of Law of TheCatholic University of America.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 2 29-JAN-13 10:2618 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWself-represented, and that many of them would benefit from having legal representationor at least more legal information about the hearing process.With the support of the OAH Pro Bono Committee and then-Chief AdministrativeLaw Judge Tyrone T. Butler, Professor Mullen submitted a proposal to theBellow Scholars Committee of the American Association of Law Schools ClinicalSection. In January 2009, she was designated as one of four Bellow Scholars forher proposed work on access to justice at the OAH. These fellowships, named forGary Bellow, a Harvard Law School professor and fierce advocate for social justice,are awarded to law school clinicians who “are embarking on important effortsto improve the quality of justice in their communities.” 2This project is part of Professor Mullen’s larger Bellow Scholars researchagenda, which concerns access-to-justice issues at the OAH more generally. Thisproject tried to ascertain whether self-represented parties (both employees 3 andemployers) in unemployment insurance (UI) appeals perceive a need for morelegal assistance. For three weeks in November of 2009, law students from TheCatholic University of America administered a survey that asked self-representedparties in UI appeals whether, based on their experiences in the hearing, theyperceived a need for more legal assistance and whether there were aspects of thehearings that they found particularly challenging. Initially Professor Mullensought Professor Pumar’s expertise to ensure that the sample size was adequateand the survey methodology sound. As the project was initially conceived, ProfessorMullen would draft the survey, Professor Pumar would review it, and lawstudent volunteers would administer it. After an initial conversation, ProfessorMullen and Professor Pumar decided that one significant component of the projectshould be to involve law students in all aspects of the survey process. So,while this project began as an effort to determine whether self-represented partieswho appear before the OAH in UI appeals perceive a need for legal assistance,it evolved into something more—an interdisciplinary collaborationbetween a sociologist (Professor Pumar) and a lawyer (Professor Mullen) on educatinglaw students about using survey methodology to improve access to justice.The hope was that the students would learn how to conduct empirical research,which might be valuable in their future careers. At a minimum, this researchwould make the law students better able to evaluate research they encounter postgraduation.This article details that collaboration and reports the results of the survey. PartI explains why the project was undertaken and examines the need for legal representationin UI appeals. Part II describes how the research was conducted, with2 Minna Kotkin, Reminder: Bellows Scholar Proposals Due Nov. 10, CLINICIANS WITH NOTENOUGH TO DO, (Nov. 5, 2008, 9:12 AM), http://kotplow.typepad.com/clinicians_with_not_enoug/2008/11/reminder-bellow-scholar-proposals-due-nov-10.html.3 The word “employee” is used interchangeably throughout this article with the term“claimant.”

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 3 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 19an emphasis on the key role played by students in framing the research questions,and drafting, pretesting, and administering the survey. This section may provide amodel for others who might wish to engage in similar law and sociology collaborations.Part III reports the findings. The final section offers conclusions abouttraining law students to conduct empirical research and about the need for additionallegal resources for parties in UI appeals and finishes with somerecommendations.I. WHY UNEMPLOYMENT INSURANCE? WHY NOW?The OAH was created in 2004 after the Council of the District of Columbiaenacted legislation that removed the appeal function from many city agencies andcreated an independent administrative tribunal, or “central panel,” charged withadjudicating administrative litigation. 4 When citizens disagree with agency decisions,their cases come before an Administrative Law Judge (ALJ) who is employedby an independent entity, rather than by the agency that made the initialdecision. 5 Central panels are designed to “give ALJs a certain amount of independencefrom the agencies over whose proceedings they preside.” 6 The Councilcreated OAH to[I]mprove the quality of administrative adjudication . . . by eliminating potentialconflicts of interest for administrative law judges, promoting dueprocess, bringing about an appropriate level of consistency and efficiency inthe hearing process, increasing the professional qualifications of administrativelaw judges, and by expediting the fair and just conclusion of contestedcases. 7Independent administrative tribunals exist in twenty-seven states, one county,plus Chicago and New York City. 8 While some central panels have jurisdictionover only a few agencies, 9 the OAH has jurisdiction over more than twenty-fivedifferent agencies, boards, and commissions. 104 Office of Administrative Hearings Establishment Act of 2001, D.C. Law 14-76, 48 D.C. Reg.11442 (March 6, 2002) (codified at D.C. CODE §§ 2-1831.01 et seq. (2001, 2004 suppl.)).5 Id.6 Allen C. Hoberg, Administrative Hearings: State Central Panels in the 1990s, 46 ADMIN. L.REV. 75, 76 (1994).7 Establishment Act of 2001, supra note 4, (findings of the Council of the District of Columbia). R8 See Peter L. Plummer, Theme Issue Introduction, MICH. BAR JOURNAL, Dec. 2010 at 19, availableat http://www.michbar.org/journal/pdf/pdf4article1779.pdf. Mr. Plummer is a member of theBoard of Governors for the National Association of Administrative Law Judiciary.9 Id.10 About the Office of Administrative Hearings (OAH), OFFICE OF ADMIN. HEARINGS, http://oah.dc.gov/oah/cwp/view,a,3,q,593400,oahNav,%7C33003%7C.asp (last visited Aug. 14, 2011). In additionto UI appeals, OAH has jurisdiction over appeals from such varied agencies as the Departmentof Consumer and Regulatory Affairs, the Department of Public Works, the Taxicab Commission, andthe Metropolitan Police Department.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 4 29-JAN-13 10:2620 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWA. Importance of Unemployment Insurance AppealsUI cases can have serious consequences for both employers and employees.Employers pay unemployment insurance taxes at rates that are ultimately basedon their experience in the UI program. 11 When employers first join the program,they pay at the standard contribution rate, which equals “the average rate ofcontributions paid by all employers during the preceding year, or 2.7 percent,whichever is higher.” 12 This rate remains in effect until the employer can be ratedbased on experience. A higher number of claims paid results in a higher contributionrate for the employer, so an employee’s prevailing in a UI appeal can havean adverse effect on the employer’s unemployment insurance tax rate. 13 Thisconsequence, which is built into the statute, gives employers an economic incentiveto oppose claims that should not be paid. 14The consequences of losing a UI appeal may be greater for individual employeesthan for employers. UI is an important safety-net program for employees, 15and losing a UI appeal may make it difficult for an employee to pay for necessitiessuch as food and housing. 16 UI benefits keep families from sinking below thepoverty line, and “play a major role in preventing this catastrophic decline.” 17The District of Columbia Court of Appeals has described the UI program as a“remedial humanitarian [program] of vast import,” one that is designed to protectemployees “against economic dependency caused by temporary unemployment”and “reduce the need for other welfare programs.” 18The availability of UI benefits takes on particular importance in the District ofColumbia where, during the calendar quarter when the survey was conducted,the unemployment level exceeded eleven percent. 19 This reflected an almost11 Tax Rate Questions, DEP’T OF EMPLOYMENT SERVICES (DOES), http://www.does.dc.gov/does/cwp/view,a,1232,q,537820.asp (last visited Mar. 12, 2011).12 Id.13 Peter Whoriskey, Out of Work and Challenged on Benefits, Too, WASH. POST, Feb. 12, 2009,available at http://www.washingtonpost.com/wp-dyn/content/article/2009/02/11/AR2009021104311.html?hpid=topnews.14 Maurice Emsellem & Monica Halas, Representation of Claimants at Unemployment CompensationProceedings: Identifying Models and Proposed Solutions, 29 U. MICH. J.L. REFORM 289, 305(1996).15 Our Work: Unemployment Insurance, THE LEGAL AID SOCIETY-EMPLOYMENT LAWCENTER, http://employmentlawcenter.org/work-unemployment.html (last visited May 25, 2011).16 Unemployment Insurance Benefits: Where Do We Go From Here? Before the S. Comm. onFinance, 111th Cong. 72 (2009) (statement of Beth Shulman, Chair, National Employment Law Project),available at http://www.finance.senate.gov/hearings/hearing/?id=d8211bcc-e081-3f58-e37cbc9dc6b619c8(“Unemployed workers who did not receive UI benefits were twice as likely as thosewith benefits to be forced to skip meals in order to get by financially.”).17 Id. at 75.18 Bowman-Cook v. Washington Metro. Area Transit Auth., 16 A.3d 130, 134 (D.C. 2011).19 State Unemployment Monthly Rates for 2009, NATIONAL CONFERENCE OF STATE LEGISLA-TURES, http://www.ncsl.org/?tabid=17306 (last visited Mar. 15, 2011).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 5 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 21four-percentage-point jump in unemployment between 2008 and 2009. 20 The Districtof Columbia Access to Justice Commission found that “[a]s more jobs arelost, unemployment benefits are an increasingly important source of income forlow-income families. Unemployment disputes have generated a large number ofappeals to the [OAH] where having a lawyer is often necessary to argue a complexlegal issue.” 21Unemployment appeals make up a significant portion of the cases heard bythe OAH. UI cases come to the OAH as appeals of decisions made by the Departmentof Employment Services (DOES), which administers the program. 22 Infiscal year 2009, there were 3222 appeals. 23 This represents approximately thirteenpercent of all OAH filings in that year and makes UI appeals second only toDepartment of Public Works appeals in volume. 24There is reason to be concerned about the quality of decisions made by DOES.Between August 2009 and July 2010, the District of Columbia Office of the InspectorGeneral conducted an evaluation of the Office of Unemployment Compensation(OUC) at the DOES. Based on this evaluation, the Inspector Generalreleased a report that revealed some problems at OUC including the lack of aprocedure manual for processing claims, 25 lack of formal job training, 26 high levelof employee turnover, 27 lack of quality assurance, 28 and an inability to generatekey performance reports, such as the number of claims processed by each employee.29 When given the opportunity to respond to these concerns, DOESagreed with the findings. 30 Against this backdrop of documented performance20 Regional and State Employment and Unemployment (Monthly) News Release, BUREAU OFLABOR STATISTICS, (Dec. 18, 2009, 10:00 AM), http://www.bls.gov/news.release/archives/laus_12182009.htm. (List of rate changes for states from 2008 to 2009 is in Table C: States with statisticallysignificant unemployment rate changes from November 2008 to November 2009, seasonally adjusted).21 A JOINT REPORT OF THE DISTRICT OF COLUMBIA ACCESS TO JUSTICE COMMISSION AND THED.C. CONSORTIUM OF LEGAL SERVICE PROVIDERS, RATIONING JUSTICE: THE EFFECT OF THE RECES-SION ON ACCESS TO JUSTICE IN THE DISTRICT OF COLUMBIA 3 (2009), available at www.legalaiddc.org/documents/RationingJusticeReport. .pdf.22 See D.C. Unemployment Compensation Act, D.C. CODE §§ 51-111 (2001).23 DISTRICT OF COLUMBIA OFFICE OF ADMINISTRATIVE HEARINGS, FISCAL YEAR 2010 AN-NUAL REPORT 8 (2011), available at http://oah.dc.gov/oah/lib/oah/pdf/about/fy10_annual_report_final.pdf [hereinafter 2010 ANNUAL REPORT].24 Id.25 CHARLES J. WILLOUGHBY, DISTRICT OF COLUMBIA OFFICE OF THE INSPECTOR GENERAL,DEPARTMENT OF EMPLOYMENT SERVICES OFFICE OF UNEMPLOYMENT COMPENSATION BENEFITS DI-VISION REPORT OF SPECIAL EVALUATION 16 (2011) available at http://oig.dc.gov/news/view.asp?url=release10%2FDOES-Full-Report-1%2Epdf&mode=release&archived=0&month=20111 [hereinafterOIG REPORT].26 Id. at 19.27 Id. at 23.28 Id. at 28.29 Id. at 32, 34.30 WILLOUGHBY, supra note 25, at 18, 22, 25-26, 30-31, 34-35, 44-46. R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 6 29-JAN-13 10:2622 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWproblems at DOES and high unemployment, the OAH serves an important rolein ensuring the fair and efficient resolution of UI appeals.B. Assessing the Desire for More Pro Bono AssistanceThere is a strong sentiment among at least some of the ALJs who hear UIappeals that the parties, both employers and employees, benefit from having representation.31 Some studies of the outcomes in UI appeals in other jurisdictionssuggest that employees prevail more often when they are represented. 32 Thesecases can be difficult for both parties because “[c]ases involving employment separationissues are legally complex and very contentious.” 33 Despite the difficulty,the majority of parties in UI appeals are self-represented. 34 Principal ALJ AnnYahner estimates that between seventy-five and eighty percent of employers areself-represented and that eighty to eighty-five percent of employees are selfrepresented.35The District of Columbia Bar Pro Bono Program, which developed severalcourt-based resource centers and provides pro bono representation in a variety ofcases, 36 identified UI appeals as a type of case where assistance provided on theday of the hearing could make a difference for parties, but wondered whether theneed for representation was already being met by current legal service providers37 and whether parties in UI appeals even want representation. 38 The Pro31 Focus Group Interview with Administrative Law Judges, Office of Admin. Hearings, in D.C.(Sept. 30, 2009) [hereinafter Focus Group].32 Emsellem & Halas, supra note 14, at 291-92. See also Russell Engler, Connecting Self-Repre- Rsentation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 FORD-HAM URB. L. J. 37, 61 (2010) (accounting for this difference in the effect of representation ofemployers and employees by theorizing, “that the representatives for [employees] might be morelikely to accept cases with potential merit, whereas employers might be more likely to retain anoutside representative in problematic cases . . . .” (citing HERBERT M. KRITZER, LEGAL ADVOCACY:LAWYERS AND NONLAWYERS AT WORK 32 (1998))).33 Emsellem & Halas, supra note 14, at 297. R34 E-mail from Ann Yahner, Principle Admin. Law Judge, Office of Admin. Hearings, to ElizabethFigueroa, Admin. Law Judge, Office of Admin. Hearings (June 29, 2009, 11:43:00 EST) (on filewith authors); See also DISTRICT OF COLUMBIA ACCESS TO JUSTICE COMM’N, Justice for All? AnExamination of the Civil Legal Needs of the District of Columbia’s Low-Income Community 56 (2008),available at http://www.dcaccesstojustice.org/files/CivilLegalNeedsReport.pdf [hereinafter JUSTICEFOR ALL?].35 E-mail from Ann Yahner, supra note 34. R36 See Serving the Community, D.C. BAR, http://www.dcbar.org/for_lawyers/pro_bono/about_the_program/serving_the_community/index.cfm (last visited Mar. 31, 2011).37 There are two entities that provide representation pursuant to statute: The Claimant AdvocacyProgram (CAP), sponsored by the AFL-CIO, represents employees at no cost, while the WashingtonD.C. Area Chamber of Commerce represents employers as part of the Employer AssistanceProgram (EAP). Claimant Advocacy Program, AFL-CIO: WASHINGTON DC METRO COUNCIL, http://www.dclabor.org/ht/d/ProgramDetails/i/247/pid/536 (last visited Feb. 20, 2011); See also DC GovernmentUnable to Fund DC Chamber of Commerce Employment Advocacy Program for Remainder of

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 7 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 23Bono Program is understandably reluctant to devote resources (staff time, trainings,materials, mentoring of advocates, etc.) absent evidence of pressing need. 39The UI statute authorizes funding for two organizations to provide free legalservices to parties in UI appeals, one for employees and one for employers. 40 TheClaimant Advocacy Program (CAP), sponsored by the Metropolitan WashingtonCouncil, AFL-CIO, assists employees who have been “denied unemploymentcompensation in D.C. or whose benefit awards have been appealed by the employer.”41 The employer counterpart to the CAP program is the Employer AssistanceProgram (EAP), which provides free legal assistance to employers in UIappeals. The Washington Area Chamber of Commerce sponsors the EAP program.42 The EAP ran out of money in August 2009 and thus was not acceptingcases when the survey was administered, but it resumed operations in March2010. 43 In addition to the EAP program, private counsel and some “third-partyagents” represent employers in these appeals. 44Employees who seek legal representation turn to one of several legal serviceproviders. CAP is the leading source of assistance, representing between 30 and45 claimants in UI appeals each month. 45 CAP has two full-time attorneys andestimates that it has the capacity to represent as many as 50 claimants per month.Of the average 250 appeals that are filed each month, CAP receives inquiriesabout representation from about 75 claimants. 46 This means that more than twothirds of the employees who file UI appeals do not contact the CAP program.2009, DC CHAMBER OF COMMERCE (July 28, 2009, 7:00 AM), http://www.dcchamber.org/index.php?src=news&refno=34&category=News [hereinafter DC CHAMBER OF COMMERCE].38 Telephone Meeting with Mark Herzog, Associate Dir., DC Bar Pro Bono Program, in D.C.(July 9, 2009).39 Id.40 D.C. CODE § 51-111(h) (2001). The OAH hearing notice includes information about bothEAP and CAP in both English and Spanish, see also note 37.41 AFL-CIO: WASHINGTON DC METRO COUNCIL, supra note 37. R42 DC CHAMBER OF COMMERCE, supra note 37. R43 The Employer Advocacy Program (EAP) is Back in Business!, DC CHAMBER OF COMMERCE(Aug. 27, 2010, 2:19 AM), http://www.cocunited.org/article/DC_Local_Chambers/DC_Chamber/The_Employer_Advocacy_Program_EAP_is_back_in_business/19108.44 These representatives are typically non-attorneys employed by firms that represent employersin a variety of unemployment tax matters. OAH rules specifically permit non-lawyers who areemployed by such firms to act as representatives in UI appeals. OAH rules provide, “[a]n authorizedagent employed by a firm whose usual business includes providing representation in unemploymentcompensation cases may represent any party.” D.C. MUN. REGS. tit. 1, § 2982.1 (2010). The proposedrules were published in the D.C. Register on September 10, 2010, at 57 DCR 8198, and OAH extendedthe comment deadline in response to requests. The rules were published as a second proposedrulemaking on November 26, 2010, at 57 DCR 11223. The notice of final rulemaking was published at57 DCR 12541, 12591 (December 31, 2010).45 E-mail from Tonya Love, Attorney, Claimant Advocacy Program (CAP), to Faith Mullen(Feb. 28, 2011, 17:01:00 EST) (on file with authors).46 Id.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 8 29-JAN-13 10:2624 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWThe CAP program prefers that employees contact them during a brief windowbeginning when the hearing date is scheduled and ending five days before thehearing date. They make exceptions on a case-by-case basis but have concludedthat this is the best way to allocate their services. 47The Employment Justice Center (EJC) is a leading provider of free employment-relatedlegal assistance to low-income employees in the District of Columbia.EJC attorneys and volunteers generally provide legal information andunbundled legal services (legal advice, guidance on preparing for a hearing, orassistance in drafting pleadings, for example). For help with UI appeals, however,they typically refer claimants to the CAP program. At this time, EJC does notprovide representation before the OAH. 48Several area law school clinical programs, including those at The GeorgeWashington University, The Catholic University of America, Georgetown University,and American University, represent employees in UI appeals. 49 Individualswho come to the OAH are provided a list of legal service providers. When lawschools are accepting UI cases, the clerks post a sign with the name and telephonenumber of a contact person. Combined, these programs represent fewerthan 100 employees per year. Law school-based legal clinics can only provideperiodic assistance, largely driven by the academic calendar. Even when lawschools are in session, typically several weeks early in each semester pass beforestudents are ready to represent clients. Neighborhood Legal Services 50 and theLegal Aid Society 51 have each represented claimants in appeals of OAH decisionsbefore the District of Columbia Court of Appeals, and have representedindividuals whose cases have been remanded to the OAH, but otherwise have notrepresented many claimants before the OAH. Bread for the City, another leadingprovider of civil legal services, does not represent parties in UI appeals. 52 Aquick tally of these numbers suggests that all of these legal service providers com-47 Id.48 E-mail from David Loda, Legal & Policy Associate, Employment Justice Center (EJC), toFaith Mullen (Feb. 25, 2011, 16:49 EST) (on file with authors).49 Letter from Mary Oates Walker, Chief Admin. Law Judge, to the Honorable Phil Mendelson,Chairman, Committee on Public Safety and the Judiciary 15 (Mar. 14, 2011), available at http://www.dccouncil.us/mendelson/COJ_FY11Performance_FY12Budget.htm (follow “AdministrativeHearings, Office of: 3.14.11_Response” hyperlink).50 E-mail from Heather Hodges, Pro Bono Counsel, Neighborhood Legal Service Program, toFaith Mullen (Mar. 21, 2011, 17:00 EST) (on file with authors).51 E-mail from Jodi Feldman, Director of Pro Bono and Intake Programs, Legal Aid Society ofthe District of Columbia, to Faith Mullen (Mar. 21, 2011, 09:40 EST) (on file with authors). Since thisproject was completed, the Legal Aid Society has hired a staff attorney to represent claimants in UIcases.52 E-mail from Vytas V. Vergeer, Legal Clinic Director, Bread for the City, to Faith Mullen(Mar. 29, 2011, 14:40 EST) (on file with authors).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 9 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 25bined represent fewer than 600 employees per year, when more than 3000 caseswere filed in each of the last three fiscal years. 53One important question is whether legal service providers who currently representparties in unemployment appeals have the capacity to provide legal assistanceto everyone who needs it. The answer to the so called “capacity question” isimportant because it has a direct bearing on the willingness of other legal serviceproviders and pro bono attorneys to represent parties in UI cases. If existing legalservice providers can meet the demand for legal services, it would not make senseto direct additional resources toward UI appeals. The limited number of lawyerswho actually appear before the OAH in UI appeals, coupled with the sheer volumeof cases, strongly suggests that existing providers are not able to help everyonewho needs representation.II.TRAINING LAW STUDENTS IN BASIC SURVEY METHODOLOGYThis project was developed with an emphasis on “service learning,” wherecoursework is designed to address community needs. 54 This kind of communitybasedproject “enhances learning outcomes as well as civic engagement, volunteering,political participation and intergroup relations.” 55 There is growing interestamong legal educators in identifying projects that will engage law studentswho are enrolled in clinical programs in addressing legal issues beyond individualclient representation. 56 The challenge is to identify projects that are good vehiclesfor learning. 57 Professor Katherine Kruse identified two elements that distinguishprojects that offer students meaningful problem-solving experiences beyondcasework: “students learn a skill best by having primary responsibility for employingthat skill to accomplish a task that they can see from start to finish.” 58Similar elements have been identified in the literature on service-learning: autonomy,competence, and relatedness. 59 Projects should offer students the opportunityto be involved in the decision-making process (autonomy), to attain a sense53 2010 ANNUAL REPORT, supra note 23. R54 See Jane L. Newman & Lawrence N. Bailis, Service-Learning as Creative Productivity, 1INFO. FOR ACTION: A J. FOR RES. ON SERVICE-LEARNING FOR CHILD. AND YOUTH, no. 2, at 1, availableat http://www.service-learningpartnership.org/site/PageServer?pagename=PUB_journal_fall2008.55 Chantal Levesque-Bristol, Timothy D. Knapp, & Bradley J. Fisher, The Effectiveness of Service-Learning:It’s Not Always What You Think, 33 J. OF EXPERIENTIAL EDUC. 208, 209 (2010).56 See Robin S. Golden & Sameera Fazili, Raising the Roof: Addressing the Mortgage ForeclosureCrisis Through a Collaboration Between City Government and a Law School Clinic, 2 ALB.GOV’T. L. REV. 29 (2009); see also Jayashri Srikantiah & Jennifer Lee Koh, Teaching Individual RepresentationAlongside Institutional Advocacy: Pedagogical Implications of a Combined AdvocacyClinic, 16 CLINICAL L. REV. 451 (2010).57 Katherine R. Kruse, Biting off What They Can Chew: Strategies for Involving Students inProblem-Solving Beyond Individual Client Representation, 8 CLINICAL L. REV. 405, 410 (2002).58 Id. at 423.59 Levesque-Bristol et al., supra note 55, at 210. R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 10 29-JAN-13 10:2626 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWof mastery (competence), and to connect with faculty, other students, and communitypartners (relatedness). 60 Community projects are believed to “constitutepowerful and instructional ‘texts.’” 61The students who worked on this project were enrolled in the General PracticeClinic at the Catholic University of America. 62 By the time they administered thesurvey, they had three months of clinical legal education and all had some experiencewith individual client representation. All of them had expressed an interestin policy work. Between September and early November, Professor Pumar led aforty-five minute seminar once a week for six weeks. The seminar was held whenstudents would otherwise have been in the clinic as part of their regularly scheduledoffice hours.During this seminar, students learned how to implement a research process togather empirical evidence, from conceptualization through data collection. As aresult, they began to understand the interdependence of the different phases of aresearch enterprise. Students also learned how the length and design of questionnairesaffect the rate of completed surveys. Students received instruction in researchmethods during the first two weeks of the seminar and then workedcollaboratively on formulating the survey questionnaire and collecting data. 63Another topic of discussion in the seminar was the importance of devising measuringschemes to gather sufficient and persuasive data. As part of this exercise,the students were asked to formulate and bring to class questions they thoughtshould be included in the survey. The students examined different strategies tomanage the return rate of surveys. This aspect of the seminar was important forthe success of the project because this measurement provides a reliable calculationof the validity of the survey findings. 64 Finally, Professor Pumar instructed60 Id.61 Ira Harkavy & Matthew Hartley, Pursuing Franklin’s Dream: Philosophical and HistoricalRoots of Service-Learning, 46 AM. J. COMMUNITY PSYCHOL. 418, 420 (2010).62 Students enroll in the General Practice Clinic for six credits, with an option, under certaincircumstances, to continue for three to six credits in subsequent semesters. They are expected to bepresent in the clinic for twenty hours per week. Students work in teams and represent two to fiveclients (depending on the scope or complexity of the cases) in civil matters including child support,special education, estate planning, consumer, and public benefit cases. Participation in this projectcounted as work on one case.63 Ultimately, we did not discuss any arrangements to support the data analysis effort in ourseminars because asking students to analyze the data would have required more expertise than thestudents possessed and would have interfered with their end of semester final examinations.64 The rate of returns in surveys is the outcome of the division of the number of people whowere asked to complete the survey by the actual number of those who completed the questionnaire.The rate of return measures the validity of surveys. If the questionnaire is too long, unattractive,inaccessible, or contains irrelevant questions, the population one asks to participate in the study islikely to decline to participate. Sufficient number of rejections, in turn, would affect the reliability ofsurvey research because it undermines the general applicability of the questionnaire tool. See FLOYDJ. FOWLER, JR., IMPROVING SURVEY QUESTIONS: DESIGN AND EVALUATION (Susan McElroy, ed.,1995).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 11 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 27students on how to conduct a pretest. Pretests provide an opportunity for a researcherto perfect the survey questionnaire and to test some of the methodologicalassumptions supporting the research process. The pretest provides the lastopportunity to tweak any aspect of the research before it is fully implemented. Atthe conclusion of the survey, Professor Pumar analyzed the data. Asking studentsto analyze data would have interfered with their final examinations. To enhancetheir learning, students recorded their observations about their work on the surveyand their thoughts about access to justice in administrative hearings. 65A. Framing the Research QuestionThe first step in framing the research question was for all the students andboth faculty members to observe at least one UI appeal hearing in which theparties were self-represented. In these hearings, the ALJs routinely provided theparties with an overview of the hearing process and clarified procedural issues asthey surfaced. Among ALJs there were slight variations, but most communicatedthe same basic information to parties—that the hearing would be recorded, theorder of presenting the case, and the burden of proof. Even so, students notedthat most self-represented parties seemed uncertain about the order in whichthings would occur during the hearing, what information would best prove theircases, and how to respond to the other party’s evidence. It was clear that this wasthe first time some parties had heard this information. One student wrote:The employee seemed confused about her role and responsibilities in thehearing, basically tipping off to the Judge and the employer [about] her theoriesregarding the case and seeming to think that she had to make a longwindedstatement in order to prevail. Most puzzling, she didn’t take any65 Asking students to write about their experiences is consistent with best practices in legaleducation as well as consistent with the goals of service learning as articulated by Yi Lu who notedthat “[b]y providing reflection opportunities, instructors facilitate students processing their values andgoals and moving beyond individual experience to consider broader implications of their service.”(citations omitted) Yi Lu & Kristina T. Lambright, Looking Beyond the Undergraduate Classroom:Factors Influencing Service Learning’s Effectiveness at Improving Graduate Students’ ProfessionalSkills, 58 C. TEACHING 118, 119 (2010). It is also consistent with best practices in legal education. SeeAM. BAR ASS’N: SECTION OF LEGAL EDUC. AND ADMISSIONS TO THE BAR, MACCRATE REPORT: ANEDUCATIONAL CONTINUUM REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION:NARROWING THE Gap (1992), available at http://www.americanbar.org/groups/legal_education/publications/maccrate.html#A.%20Reasons%20for%20a%20Statement.See also Marcy L. Karin & RobinR. Runge, Toward Integrated Law Clinics that Train Social Change Advocates, 17 CLINICAL L. REV.563, 567-68 (2011). “The integrated approach to clinical education provides one of the bestframeworks for creating optimal learning experience for law students by providing multiple, differentopportunities to experience lawyering, to reflect on what happened or was done, to interpret the taskor event and to see it in a larger context of social change lawyering, thereby enabling them to effectivelyapply their experience in the future.”

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 12 29-JAN-13 10:2628 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWnotes for much of the proceeding, even as management threw out numerousdates and incidents in making its case. 66In another hearing, an employer’s testimony made it unclear whether the employeehad been fired for multiple acts of misconduct or for the one act of misconductthat the employee had received notice of. This testimony complicatedthe employer’s burden of proof. 67 The parties had difficulty with objections andcross-examination. As one student wrote, “the [employee] did not seem to understandwhat she was allowed to object to, and why she could object to it. Eventhough [she] would say ‘objection,’ she had a hard time formulating arguments,and because of that evidence was admitted that would hurt her case.” 68 In thehearings we observed, parties were universally unsure about cross-examinations,either using it as one more opportunity to testify or forgoing it altogether. 69The need for an interpreter can further complicate the hearings. At the time ofthe observations, the OAH relied on Language Line, a telephonic translation service.70 Professor Pumar, who is fluent in Spanish, noted how inadequate LanguageLine was for the purpose of conducting a legal proceeding. 71 At more thanone point, the hearing foundered while the parties stared at either the tablebefore them or the ALJ, waiting for the interpreter, who in turn was waiting forthe ALJ. 72 Eventually the hearing was continued to another date to allow theemployee time to locate proof that the hearing request was timely filed. Bothparties seemed baffled by the continuance.Students left the hearings with the strong impression that, even with help fromthe ALJs, most self-represented parties had difficulty presenting their cases. Weapproached the research with two primary questions in mind: Do self-representedparties in UI hearings (based on their experience of participating in a66 Memorandum from Eric Berkey, Law Student, Columbus Sch. of Law, to Authors (Dec. 3,2009) (on file with authors).67 Id.68 Memorandum from Catherine Knight, Law Student, Columbus Sch. of Law, to authors (Dec.2, 2009) (on file with authors).69 Professor Pumar (the only member of the research team not trained in law) suggested thatcross-examination should be abolished because it was wrong to make people who were already in astressful situation come up with questions to ask the other side. See Paris R. Baldacci, A Full and FairHearing: The Role of the ALJ in Assisting the Pro Se Litigant, 27 J. NAT’L ASS’N ADMIN. L. JUDICI-ARY 447 (2007).70 Since February, 2011 the OAH has an in-person Spanish interpreter two full days per weekand schedules all the cases that require a Spanish interpreter on Tuesday or Wednesday. If the OAHis provided sufficient notice to schedule in advance, an in-person interpreter will be scheduled forother languages on the first mutually convenient date (including American Sign Language and CART(Communication Access Real-Time Translation)). If a party wishes to proceed on the day of thehearing, the OAH will use Language Line. E-mail from Karim Marshall, Capital City Fellow, Officeof Admin. Hearings, to Faith Mullen (Feb. 25, 2011, 16:14:00 EST) (on file with authors).71 Observation of UI Hearing (Sept. 30, 2009 ) (notes on file with authors).72 Id.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 13 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 29hearing) wish they had legal representation? Second, are there aspects of thehearings that self-represented parties perceive as being particularly difficult?Based on our observations, our hypothesis was that they would benefit by beingrepresented by an attorney and that most parties would prefer it. Mindful that theplural of anecdote is not data, we began the process of data collection.B. Drafting the SurveyA reliable survey depends on asking the right questions. The process of developingthose questions involves generating more questions than can or should beasked and then winnowing them down to ask the best questions. 73 “Best” in thiscase means questions that are consistent with the purpose of the survey and also“best” in the sense of well-written, clear questions that are not misleading andthat can be readily understood. 74 As the students soon discovered, this was not aseasy as it seemed.One of the first steps was to obtain a copy of an OAH “Scheduling Order andNotice of In-Person Hearing” [hereinafter “hearing notice”] and the attachmentsthat are routinely sent to parties. 75 After reviewing these documents, studentsdrafted several questions about whether the hearing notice was clear and whetherit provided parties enough information to prepare for the hearing and to understandthe proceedings. By this time the students had already observed at least onehearing and formed some preliminary ideas about the challenges self-representedparties face. Students wanted to find out what worried people most about thehearings in order to write questions that would address those concerns and see ifthey were pervasive. To accomplish this, students spent a morning talking to partieswho were in the OAH waiting room, waiting for their hearings.Meanwhile, the faculty members on the research team met with most of theALJs who hear UI appeals. 76 There were many things the ALJs were interestedin learning from the parties: What did they understand about the hearing?; Wasthe information they received from the OAH in advance of the hearing useful?;How did they prepare?; What was the experience like for people who did notspeak English?; Had they tried to obtain representation?; Did they feel they receiveda fair hearing? Dozens of questions emerged from this meeting, far toomany to be included in a single survey. Of particular interest to the judges wasthe tension between giving parties a fair hearing but limiting digressions and extraneousmaterials. They described this problem as being particularly acute for73 See EARL BABBIE, SURVEY RESEARCH METHODS (Serina Beauparlant et al. eds., 2d ed.1990).74 Id.75 Redacted hearing notice and attachments. Letter from Holly Kirk, Staff Attorney, Office ofAdmin. Hearings, to Eric Berkey, Law Student, Columbus Sch. of Law (Sept. 29, 2009) (on file withauthors).76 Focus Group, supra note 31. R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 14 29-JAN-13 10:2630 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWparties who do not understand anything about the hearing process before thehearing. The judges were also understandably interested in an assessment of theirown performance, but the project was not designed to evaluate the performanceof individual judges or even to gauge overall satisfaction with the hearing process.To round out this stage of the research, one student contacted the D.C. BarPro Bono Program and, based on a conversation with the Associate DirectorMarc Herzog, developed a list of questions that the Pro Bono Program thoughtwould be useful in assessing the need for more pro bono assistance for claimantsin UI appeals. 77 These included: Before your hearing were you aware of any freelegal services available to help you?; If yes, what is the reason you chose not touse them?; If no, what would be the best way to communicate that legal servicesare available?; Would you have used a free lawyer if you could have?; Would youconsent to a continuance if that was the only way for a lawyer to help you?; andDo you think having a lawyer help you with your case will get you a better result?Most of these questions were included in the final survey.Students distilled all the questions they had come up with into two broad categories:questions about preparation for the hearing and questions about the parties’experience at the hearing. This generated a list of more than 100 possiblequestions, ranging from whether the parties thought the hearing was fair towhether they brought a pen or pencil to the hearing (the latter question emergedbecause students observed that some parties did not take notes when the otherside testified about disputed dates and dollar amounts). We then devoted time todeciding what should not be included in the survey.In addition to limiting the total number of survey questions, students weremindful of several other constraints. First, we did not want to interfere with thehearings in any way. So, while it would have been useful to ask individuals beforetheir hearings how they prepared, we were concerned that our very presencemight cause parties going into a hearing to worry that they were inadequatelyprepared or should have obtained counsel. Second, we considered whether wecould increase the response rate if we asked the ALJs to encourage people toparticipate, but concluded that people might somehow feel pressured to completethe survey or anxious that failing to do so could somehow affect the outcome ofthe case. In what may have been an excess of caution, we did not ask the ALJs toencourage people to complete the survey.A third related concern was that we wanted to guarantee respondents thattheir answers would in no way affect the outcome of their hearing. The only wayto accomplish this was to make the surveys anonymous. While it would have beeninformative to compare survey results with hearing outcomes, this could not beaccomplished without identifying the parties, and we believed we would obtain77 Telephone Interview by Brynne Bisig with Mark Herzog, Assoc. Dir., D.C. Bar Pro BonoProgram (Oct. 7, 2009).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 15 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 31more candid answers if people were confident that their participation in the surveywas anonymous.Fourth, we excluded from the sample parties who were represented. 78 We didnot want to intrude into any party’s relationship with his or her representative,and the survey was not designed to assess the quality of representation. But byexcluding these parties we missed some potentially valuable information such ashow those parties came to be represented and whether they felt they had aneasier time at the hearing than self-represented parties did.Fifth, we were mindful that this was not a customer satisfaction survey thatwould evaluate the performance of the OAH staff or ALJs. As a consequence,many of the questions that were of interest to the ALJs were not included in thefinal draft of the survey. Finally, students were persuaded that the survey wouldbe easier to tabulate and the responses stronger if they kept open-ended questionsto a minimum. 79 With these constraints in mind, the students eliminatedmore than three quarters of the questions and winnowed them down to twentyfour.C. PretestingOnce the students had a serviceable draft, they returned to the OAH waitingroom to pretest the survey. 80 The role of pretesting in standard survey protocol isto identify any problems with the survey or its administration and to addressthose problems before collecting the data. 81 Pretesting provides an opportunityfor researchers to perfect the survey questionnaire and test some of the methodologicalassumptions that underpin the research process. 82 Ultimately, pretestingenhances the survey results because it ensures that when the survey is administeredit will not be necessary to change the survey questions or how they areasked. 83 Pretesting functions as a sort of dress rehearsal for the survey instrumentand for the individuals who will administer the survey. 84 Students conductedpretesting for two days and then reconvened to discuss their experiences and torevise the survey before the start of data collection.78 OAH rules permit representation by non-attorneys in UI appeals. D.C. MUN. REGS., supranote 44.79 See Paul Sheatsley, Questionnaire Construction and Item Writing, HANDBOOK OF SURVEYRESEARCH 195-230 (Peter H. Rossi, James D. Wright & Andy B. Anderson eds., 1983).80 At the time this research was conducted, OAH held UI hearings in two adjacent buildings onNorth Capitol Street in the District of Columbia—one at 825 North Capitol and one at 941 NorthCapitol. For reasons that are described in more detail below, we selected the 941 North Capitol locationas the site for the survey.81 See Sheatsley, supra note 79. R82 Id.83 Id.84 Id.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 16 29-JAN-13 10:2632 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWAs a result of the pretesting phase, students discovered that some of the questionsin the draft survey were ambiguous. While the questions seemed clear whenthe students wrote them, people who took the survey during the pretesting phaseexpressed uncertainty about what some of the questions meant. Also, one respondenthad difficulty with the way some of the questions were asked. The surveywas designed on a four-point Likert scale that asked respondents to saywhether they strongly agreed, agreed, disagreed, or strongly disagreed with aquestion. The draft survey also had a fifth column for “n/a” or “not applicable,”but during the pretest one person checked “n/a” in answer to every question. Weremoved that choice from the survey and revised the survey so that every questionapplied to both employers and employees.Students also learned the effect that the length and complexity of the surveyquestionnaire had on the rate of participation. 85 Ideally, a survey should ask allthe essential questions, but not be so long that it burdens respondents. 86 Afterseveral people agreed to take the survey but left before finishing it, the studentsconcluded that they needed to limit questions to one page and to make the surveymore visually appealing and easier to complete. They also decided to change theorder of the questions and group similar questions together.One of the most important findings from the pretesting centered on the importanceof finding a suitable place to administer the survey. 87 The original plancalled for inviting participants into an OAH conference room, off one of the hallways,near where hearings were conducted. The hope was that this room wouldoffer participants privacy in which to complete the survey. Several problems immediatelypresented themselves: The conference room was near where the administrativeassistants worked and was often in use. As one student noted,“[c]onducting the survey in the conference room might be misleading. I am afraidthat if we do it in there, people might view us as an agent of the court system.” 88Also, the conference room was situated either down the hall or across from thehearing rooms, and using it would have diverted at least some participants awayfrom the exit, the direction they were heading at the conclusion of their hearings.Finally, there was no place for students to wait unobtrusively for a hearing toconclude.These problems were obvious during the pretesting, so students attempted toadminister the survey in the waiting room, a small area, with parties sitting inthree rows of chairs. This arrangement was not conducive to students introducingthemselves to parties and explaining their purpose or to intercepting parties asthey left the hearings, and it afforded little privacy for completing the survey.85 See FOWLER, supra note 64. R86 Id.87 Id.88 Memorandum from Laura Kakuk, Law Student, Columbus Sch. of Law, to authors (Oct. 26,2009) (on file with authors).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 17 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 33Although people warmed up once they learned that students were conductingresearch on the need for legal assistance in UI hearings, students were uncomfortableapproaching people in the waiting room. Students reported that approachingpeople to conduct research seemed intrusive because the surveyquestions were distracting parties from their real purpose—to attend a hearingand resolve a legal problem. Students discovered the waiting room also presentedsome of the same problems as the conference room: “I felt that my positioning inthat area might have given the impression that I was just another worker, or I wasthere for my own hearing. It did not allow me to set myself apart as an independententity; because of this, I was largely ignored.” 89Several useful ideas emerged from the pretesting phase of the project. It becameclear that it was impractical to ask survey questions in the waiting roombecause it was awkward and because the people we most wanted to survey werenot sitting in the waiting room, they were heading out the door after their hearings.Many of the questions were designed to ascertain how people felt about thehearing and whether there were points where they felt particularly unprepared.These were questions that could only be answered after the hearing, and pretestingdemonstrated that parties were not inclined to linger after their hearings.These problems were solved when, with the permission of the Principal ALJ,Ann Yahner, the students brought a table from the law school and set it up in thehall outside the waiting room near a bank of elevators.Because there were possibly two parties associated with every hearing, we concludedthat the only chance to speak to both parties would be if students workedin pairs and one spoke to the employer, while the other spoke to the employee.Also, since hearings are conducted concurrently, there was a possibility that partiesfrom several hearings would be leaving the OAH at the same time. Workingin pairs also addressed this problem.During the pretesting students discovered how important it was to displaytheir affiliation with The Catholic University of America Law School and to reassureparticipants of the integrity and confidentiality of the study. One studentnoted, “[e]veryone checked our ID tags to make sure we were [authorized to bethere], from security to the people we asked to take the survey.” 90 This promptedstudents to create prominent badges that listed each student’s name and thename of the university, with space for a university picture identification. ProfessorMullen also wrote a letter to participants, on university letterhead, describingthe research. 91 Several copies, enclosed in plastic sheets, were available at thesurvey site for participants to review. The students also determined that it would89 Id.90 Id.91 Appendix A. Several copies of this letter were available on the survey table to help explainthe purpose of the survey and to reassure those who took the survey of its legitimacy.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 18 29-JAN-13 10:2634 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWbe helpful to have clipboards so that participants would have something to writeon.At the same time the students were conducting the pretest, Judge Yahner circulateda draft of the survey among the ALJs who routinely hear UI cases. Theyoffered helpful suggestions. One ALJ pointed out that the OAH does not usesummonses. Another told us that few people read from prepared statements. Weremoved both of these questions from the survey. Some ALJs caught proofreadingerrors, others suggested ways to phrase the questions more clearly, and stillothers identified questions that might somehow mislead parties, including onethat asked parties whether they would prefer to receive information about freelegal services by mail, by internet, or by posting. One judge expressed concernthat participants might mistakenly think that they were signing up for noticesfrom the OAH. We agreed that, in the context of the other questions, this questionmight appear to be related to the hearing process or how OAH functionsrather than to information about a separate legal services organization. We eliminatedthe question.The ALJs raised some concerns that we were not able to address. One judgethought it was important to distinguish the participants’ experiences with the Departmentof Employment Services (DOES) from their experiences with OAH,particularly the written material the participants receive from DOES and OAH.The clarification would have required more space than we could devote to it.Another judge questioned the need for some of the demographic informationand wondered whether a zip code could be a surrogate for race or economiclevel. 92 We concluded it could not. The judges suggested additional questions wewere not able to incorporate. One thought we should ask questions about theparties’ understanding of the law: whether they knew that the employer has theburden of proof and whether the opposing party was DOES or the employer. Wedeclined to add the first question because we did not want to cause anxiety afterthe hearing by suggesting there was anything they should have known but didnot. We decided not to include the second question because it was directed onlytoward employees, when all the other survey questions were directed to bothemployees and employers. Three other questions for parties—what materialsthey thought they would need; whether they had a general understanding of whatwas going to happen in the hearing; and whether they understood their rights—were not included because the first one was open-ended, the second too similarto another question, and the third too vague.92 See ALLAN H. CHURCH & JANINE WACLAWSKI, DESIGNING AND USING ORGANIZATIONALSURVEYS: A SEVEN STEP PROCESS (2001) (discussing the value of collecting demographic data).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 19 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 35The pretest and the review by the ALJs resulted in significant changes to boththe survey questions and to how the survey was conducted. 93 Students later identifiedpretesting as a valuable aspect of the survey process. As one student wrote:The pretesting was one of the most important phases of the survey process.The purpose of pretesting is to make sure that everything in and about thesurvey is as good as it can possibly be. This phase addresses both the substantivesurvey itself (whether it is difficult for people to take, if people donot understand certain questions, if the survey was too long, if the surveywas too intrusive, etc.) but also addresses the logistical end of conductingthe survey. 94Finally, during the pretesting the students determined that, given the numberof possible surveys we could administer and the limited time we had to collect thedata, it was best to try to survey as many participants as possible. For this reason,we did not follow a particular sampling scheme. Rather, as described below, theteams of self-supervised students were present at the OAH in the morning untilthe midday recess.D. Data CollectionIn preparation for data collection, we dedicated time to the question of sampling.95 We knew from the start that we could not survey all the parties in UIappeals, because of the high volume of cases 96 and because students involved inthe project had other commitments. Sampling was further complicated by the factthat, at that time, UI appeals were adjudicated in two separate buildings locatedat 825 North Capitol Street and 941 North Capitol Street. 97Rather than devising a sampling scheme that would select some of the partiesinvolved in all of the hearings, we decided to conduct the survey during the timesand at the location where there were the greatest number of hearings and tosurvey as many self-represented parties as possible. With this strategy, wereached thirty-three percent of the parties involved in all the hearings conductedduring the duration of our research. Our sampling strategy follows the wellknowndictum in research methods that Joel Best summarizes as “the representativenessof a sample is far more important than the sample size.” 9893 Appendix B includes a copy of the survey used in the pretest. Appendix C includes a copy ofthe final survey.94 Memorandum from Laura Kakuk, Law Student, Columbus Sch. of Law, to authors (Nov. 23,2009) (on file with authors).95 See LESLIE KISH, SURVEY SAMPLING (1995).96 2010 ANNUAL REPORT, supra note 23.97 In March 2010, the OAH moved its offices to 441 4th Street NW, Washington, DC. Officeand Hours of Operation, OFFICE OF ADMIN. HEARINGS, available at http://oah.dc.gov/oah/cwp/view,a,3,q,593358,oahNav_GID,1856,oahNav,—34118—,,.asp (last visited May 28, 2011).98 JOEL BEST, DAMNED LIES AND STATISTICS 53 (2001).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 20 29-JAN-13 10:2636 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWAfter conferring with ALJs and other OAH staff, we selected 941 North CapitolStreet between the hours of 9:30 a.m. and 12:30 p.m., Tuesday through Friday,as the location and times when the most hearings were conducted and when wewere likely to secure the greatest survey participation. During the eleven days weconducted the survey (the District of Columbia government closed for Veteran’sDay), OAH scheduled 149 hearings at two locations. At least one party appearedin 123 of these cases, 89 of which were scheduled at the location and time whenstudents conducted the survey. 99Each morning during the course of the survey students set up a small table inthe hallway outside the OAH waiting room. In addition to clipboards and pens,students set out copies of the letter describing the survey and a basket of fruit andchocolates for survey participants. 100 Although the space did not afford participantsmuch privacy in which to complete the survey, the consensus among studentswas that the location was superior to either the conference room or thewaiting room where they had conducted the pretest. One student wrote, “[o]ncewe established a table outside the OAH office, it became far easier for us toapproach people about their cases and encouraged individuals to approach us aswell.” 101As students completed the first week of survey administration, it became clearthat it was taxing for them to staff the survey table four mornings a week and thatthey were daunted by the prospect of doing so for another two weeks. At thatpoint, we enlisted the help of three more student volunteers. Each of them waspaired with one of the five original students, who by that time had gained experienceadministering the survey.During the second week of the survey, students made a large yellow sign toidentify the project and to explain their purpose. Students reported that manypeople approached them seeking legal assistance. As one student wrote, “Manypeople thought we were there to provide legal services and were distraught whenthey found out we were only there giving out a survey. These people were desperatefor help and guidance during their proceeding. Even if they couldn’t fill outthe survey, they would tell us about the tragedy they had suffered, and how theydidn’t know what to do, or what to expect, or how to prepare.” 102 This promptedthe students to prepare a list of free legal service providers who handle UI case todistribute to people who asked for representation. 10399 E-mail from Ann Yahner, supra note 34.100 Offering small tokens of appreciation for those who complete surveys is a widely used practicein research. The gifts are small in value, such as a campaign button or voting sticker. They areintended and understood as a thank you for the time dedicated to completing the survey.101 Memorandum from Eric Berkey, supra note 66. R102 Memorandum from Catherine Knight, supra note 68. R103 The list included the Claimant Advocacy Program, as well as the D.C. Employment JusticeCenter, the Archdiocesan Legal Network, D.C. Law Students in Court, Legal Counsel for the Elderly,

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 21 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 37III.FINDINGSThe survey sought to answer two questions: first, based on their experiences ofhaving participated in a hearing, whether the parties in unemployment appeals(both employers and employees) perceive a need for more legal assistance; andsecond, whether there are some aspects of a hearing that they thought were particularlychallenging. The findings are detailed below. 104TABLE 1. WHO IS MOST LIKELY TO APPEAR IN UI APPEALSBEFORE THE OAH?Percentage (Rounded)Male 50Female 50African-American 61White 25Hispanic 7Younger than 25 years old 14Between 25 and 40 years old 43Between 41 and 55 years old 32Older than 55 years old 7Primarily English-speaking 82Primarily Spanish-speaking 7The survey collected some basic demographic data. 105 The typical self-representedindividual who appears before the OAH in a UI appeal is an African-American between the ages of 26 and 40. Only a fourth of the participants identifiedthemselves as Whites. Although the survey was offered to both employeesand employers, twice as many employees as employers completed the survey.The majority of participants spoke English as their first language, but approximatelyseven percent spoke primarily Spanish. This number is consistent with2009 census data, which revealed that 8.8 percent of the population of the Districtof Columbia identified themselves as Hispanic, Spanish, or Latino. 106 One studentwho was fluent in Spanish concluded that it would have been helpful to haveand Neighborhood Legal Services. We did not include George Washington University and the CatholicUniversity of America on the list because the survey was conducted during the last weeks of thesemester. Georgetown University and American University were not representing employees in thesecases at that time. We would have included free legal assistance for employers, but the EAP was notoperating at the time of the survey, and we were unaware of any other organizations that provide freerepresentation to employers.104 The completed surveys are on file with the authors.105 See CHURCH & WACLAWSKI, supra note 92. R106 District of Columbia: People QuickFacts, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/11000.html (last modified Nov. 4, 2010, 12:46 PM).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 22 29-JAN-13 10:2638 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthe survey available in Spanish because, “There were a few times when I thinkpeople were unable to fill out the survey because of language barriers. One manbegan to fill out the survey but then told us he did not have time. I think the realreason he did not complete the survey was because he felt uncomfortable speakingand reading English.” 107 Although our study was not longitudinal, it is fair toassert that with the projected growth of the Hispanic population in the Washingtonmetropolitan region, there might be a greater need in the near future foradministrative hearings to accommodate this segment of the population. 108TABLE 2. LEVEL OF PREPARATION BEFORE THE HEARING. All numbers in thetable represent percentages, and all percentages are rounded.Strongly Agree Disagree StronglyAgreeDisagreeUnderstood the purpose of the hearing 61 21 11 0Knew enough about how the hearing would 29 22 36 11be conductedUsed documents to prove case 25 29 25 7Prepared questions for cross-examination 11 18 43 18While more than eighty percent of the participants thought that they understoodthe purpose of the hearing, only slightly more than half felt they knewenough about how the hearing would be conducted, and less than a third preparedquestions beforehand for cross-examination. Only about half agreed orstrongly agreed that they used documents to prove their cases. These data suggestthat participants showed a low level of preparation before the hearing, eventhough they understood its purpose.TABLE 3. THE USE OF A LAWYER BEFORE THE HEARING. All numbers in thetable represent percentages, and all percentages are rounded.Strongly Agree Disagree StronglyAgreeDisagreeI would use a free lawyer if I could have one 57 14 11 4When asked whether they would have used the services of a free lawyer, themajority (seventy-one percent) of participants agreed and only a small number(fifteen percent) disagreed. This finding supports our initial hypothesis about theparticipants’ desire for legal representation.107 Memorandum from Erin Hughes, Law Student, Columbus School of Law, to authors (Dec.2, 2009) (on file with authors).108 See Jeffrey S. Passel, D’Vera Cohn & Mark Hugo Lopez, Hispanics Account for More thanHalf of Nation’s Growth in Past Decade, PEW HISPANIC CENTER (Mar. 24, 2011), http://pewhispanic.org/reports/report.php?ReportID=140.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 23 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 39TABLE 4. AVAILABLE LEGAL SERVICES BEFORE THE HEARING. All numbersin the table represent percentages, and all percentages are rounded.Aware of free legal Received any legalservicescoachingNo 39 79Yes X 11Yes but decided not to use it 32 XYes but were unable to receive help 29 XWith respect to whether they were aware of free legal services, thirty-nine percentsaid no. Another twenty-nine percent said they had contacted a legal serviceprovider but were unable to receive the assistance they needed. Another thirtytwopercent were aware of free legal services but decided not to use them. Elevenpercent said they received some legal coaching.Whether an individual can obtain representation in a UI case may depend ontiming. OAH notifies employees of the availability of free legal assistance in Englishand in Spanish when it sends out the hearing notice, and provides telephonenumbers for EAP and CAP. The CAP prefers to be contacted after the hearingdate has been scheduled but at least five days before the hearing is to be held toallow adequate time to prepare. Claimants who file their appeals in person maylearn of the availability of free legal assistance at one of four DC law schoolsearlier in the process (when the claim is initially filed, rather than when theyreceive the hearing notice). Individuals who file their claims by mail might notlearn about the law school programs at all.TABLE 5. IMPRESSIONS OF THE HEARING. All numbers in the table representpercentages, and all percentages are rounded.Strongly Agree Disagree StronglyAgreeDisagreeI was able to tell my side of the story during 47 38 7 4the hearingI understood the instructions 50 29 14 4There were moments I wish I was better 36 29 21 4preparedThere were moments I wish I understood the 32 40 18 11law betterAn attorney would have been helpful 54 21 18 4The hearing met my expectations 36 40 11 14Only eleven percent of participants felt they were not able to explain their sideof the story during hearings, but seventy-five percent believed that representationby a lawyer would have been helpful. But with more detailed questions abouthow they conducted themselves, the picture changes: more than half (sixty-fivepercent) wished they had been better prepared; almost three quarters (seventy-

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 24 29-JAN-13 10:2640 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWtwo percent) wished they had a better understanding of the law. One participantwrote, “I just didn’t understand the process at all and I feel when I went beforethe judge I was not clear [about] everything. I think they should have someone toexplain a little better for the first time unemployment clients.” 109This picture of unrepresented and unprepared parties is counterbalanced bythe efforts of the ALJs presiding over the hearings to make sure both partiesunderstood instructions during hearings. This may be a significant factor in whyeighty-five percent of the participants believed they were able to tell their side ofthe story and why seventy-six percent felt the hearing met their expectations.TABLE 6. THE HEARING NOTICE. All numbers in the table representpercentages, and all percentages are rounded.Yes NoThe instructions in the hearing notice were clear. 86 11The hearing notice provided enough information to proceed without 44 43an attorney.The survey also asked about the hearing notice. Some of the ALJs who metwith the faculty members of the research team expressed concerns about whetherboth parties in the hearing were reading the notice carefully. There is some indicationthat the hearing notice was read prior to the hearing, with eighty-six percentreporting that they found the instructions clear. However, the legal andprocedural information contained in the hearing notice is not a substitute forlegal assistance. Participants were split down the middle when asked aboutwhether the notice provided enough information to proceed without an attorney.TABLE 7. WILLING TO POSTPONE HEARING TO OBTAIN LEGAL ASSISTANCE.All numbers in the table represent percentages, and all percentagesare rounded.Yes NoWould have agreed to postpone hearing to be helped by a lawyer. 86 11The majority of participants would agree to postpone their hearing in order tobe helped by a lawyer. But continuances have consequences. For employees whohave been denied benefits, a continuance may translate into a delay in receivingbenefits. For employers, a continuance may mean devoting more time to opposinga claim, with the accompanying cost and stress, and in cases where employeesare receiving benefits, the difficulty of recouping benefits already paid. For OAH,continuances complicate the scheduling of hearings and may make it difficult toprovide timely benefits when warranted to individuals who have lost their means109 Completed UI Survey (on file with authors).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 25 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 41of support, and to adhere to strict federal timelines for the resolution of UIclaims. 110 The Department of Labor requires that sixty percent of cases be resolvedwithin thirty days of filing an appeal, eighty percent be resolved withinforty-five days, and ninety-five percent within ninety days. 111 There is considerablepressure to meet these deadlines and “[f]ailure to comply weakens a state’sability to provide [unemployment compensation], increases tax costs for thestate’s employers, and places political pressure upon the state’s leaders.” 112TABLE 8. LEVELS OF PREPARATION AMONG THOSE WHO AGREE ORSTRONGLY AGREE THEY WOULD HAVE USED A FREE LAWYER. Allnumbers in the table represent percentages, and allpercentages are rounded.Agree or Strongly AgreeThought that they understood the purpose of the hearing 60Thought that they knew enough about how the hearing will 32be conductedPrepared questions for cross-examination 11Used documents during the hearing 29Thought that they understood the instructions 57Wished they had been better prepared 54Wished they understood the law better 54Thought that an attorney would have been helpful 66The strongest evidence in support of the need for more legal assistance comeswhen one correlates key indicators of the levels of preparation with who agreedor strongly agreed they would have used the services of a lawyer. Again, themajority of this group thought they understood the general purpose of the hearing,but only thirty-two percent thought they knew enough about how the hearingwould be conducted. Just eleven percent had prepared questions for cross-examination,and fewer than one third used documents during their hearing to supporttheir case. Although they thought they understood the hearing instructions, halfwished to have been better prepared or to have understood the law better. Themajority of this group also thought attorney representation would have beenhelpful.110 OAH has made progress in meeting federal standards by changing the way cases areprocessed, increasing the number of hearings scheduled, assigning additional ALJs to work part-timeon UI appeals, and assigning ALJs and legal assistants to work in teams. Letter from Mary OatesWalker, supra note 49, at 8.111 Letter from Mary Oates Walker, supra note 49, at 8. R112 Richard W. Fanning, Jr., The Federal-State Partnership of Unemployment Compensation, 29U. MICH. J.L. REFORM 475, 477 (1996).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 26 29-JAN-13 10:2642 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWCONCLUSIONA. Conclusions about the Desire for Legal AssistanceThis project explored whether self-represented parties in UI appeals perceiveda need for more legal assistance and whether there were aspects of the hearingsthat they found particularly challenging. After conducting a study with a fair representationof the number of UI appeals adjudicated by the OAH during the firstthree weeks of November 2009, we conclude that there is substantial need formore pro bono legal representation at the hearings and, for those who are unableto obtain legal representation, legal assistance to help them prepare before thehearing. This conclusion is supported by the findings discussed in this article.While survey participants understood the purpose of the hearings, and theALJs we observed were diligent about making sure instructions were clear, thereis a degree of specialized legal knowledge that the parties in these cases do notpossess. Participants reported lack of preparation for cross-examination, lack ofinformation about how to use documentary evidence to support their claims, andlack of understanding of the hearing process. As one student wrote, “Most peoplewho spoke with us came out of their hearings either befuddled, frustrated or alittle of both. To no one’s surprise, almost all indicated a desire for legal services,including a fair number of employers too.” 113 Based on the survey results, weconclude that most self-represented parties wish they had more legal assistance tohelp them prepare for a hearing.B. Conclusions about Teaching Law Students Basic Survey MethodologyThe decision to involve students in all aspects of the survey process offeredstudents the opportunity to learn how to collect and assess empirical data. Thisprovided a valuable academic experience that we hope will serve them well aftergraduation. As one student wrote:Throughout the semester, the students who worked on this project learneda lot about the data collection process. We learned that it is not simply writingdown questions and handing people a survey. In order for the data to bereliable, a much more detailed and meticulous process is necessary. . . . I amconfident that, if in the future I am called upon to conduct some sort of datacollection project, I will be able to replicate this process thereby obtainingtrustworthy results. 114This project engaged students in service learning and offered them insightsinto access-to-justice issues from a perspective different from the one they de-113 Memorandum from Eric Berkey, supra note 66. R114 Memorandum from Laura Kakuk, supra note 94. R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 27 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 43velop in law school. 115 By the time this survey was conducted, the students alreadyhad some experience representing clients. But working on this project,students encountered a different side of the need for pro bono representation. Asone student wrote:This experience really opened my eyes to the worries people face in legalproceedings, especially when they are without a lawyer, even though theytried to get one. These people aren’t choosing to attend these hearings prose, in fact, many tried to find legal aid, but either didn’t know where to look,or were turned away. 116Students benefited from interacting with ALJs, court personnel, self-representedparties, and other lawyers. 117 In doing so, students had the opportunity towork with other professionals “to address the same problems from different perspectives.”118 These interactions informed their understanding of the need formore assistance for self-represented parties. One student wrote:Based on our interactions and observations at OAH, there was a generalconsensus that more representation was needed. This conclusion is based onthe reaction from pro se litigants and court employees. We had several prose litigants ask if we were there to provide representation on the spot. Thisled us to believe they would have used counsel if they knew it was available.We speculate that [the OAH legal assistants] were enthusiastic about the[the prospect of] representation because it would have gone a long way tomake their jobs easier. Based on the reactions of the pro se litigants and thecourt employees, it was obvious that more representation was desired. 119Having been through the process of conducting survey research from start tofinish, students gained insight into what worked well and what could be improved.Based on their experience, we offer the following advice to others whomay want to engage law students in similar work:First, all the students thought it was valuable to participate in the design of thesurvey. The process was more complex than anticipated. Students were surprisedby how challenging it was to write clear questions and to organize them in a waythat would enhance survey participation. Having participated at every step in theprocess, students were better able to administer the survey. As one wrote, “Ithink it was helpful for us to be involved in the drafting process because it ensuredthat we understood what it was we were doing and what we were lookingfor.” 120 One change we recommend is to start the process a few weeks sooner so115 See Golden & Fazili, supra note 56. See also Srikantiah & Koh, supra note 56. R116 Memorandum from Catherine Knight, supra note 68. R117 Levesque-Bristol, supra note 55, at 210. R118 Kruse, supra note 57, at 439. R119 Memorandum from Laura Kakuk, supra note 94. R120 Memorandum from Erin Hughes, supra note 107. R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 28 29-JAN-13 10:2644 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthat students can play a role in the data analysis. Although they completed thesurvey administration and were aware of the findings, the semester ended beforewe could discuss with them how the data could be combined and analyzed.Second, pretesting was important. In addition to flagging problems with thesurvey or its administration, this step allowed students to assume ownership ofthe project, consistent with the goal of providing students a meaningful problemsolvingexperience. 121 While the idea of pretesting was unfamiliar to the students,they immediately saw its value. As one wrote, “The pretesting was one of themost important phases of the survey process . . . [It] addresses both the substantivesurvey itself . . . [as well as] the logistical end of conducting the survey.” 122Third, the students saw the value in interdisciplinary partnerships. The lawyerswere able to provide insights into procedural and substantive issues, while thesociologist contributed expertise in survey methodology, including sampling, theimportance of limiting the number of open-ended questions, and pretesting, aswell as a fresh view of legal process that lawyers sometimes take for granted.Students benefited greatly from seeing how another professional approachedproblem solving, and it was valuable for them to see that other disciplines cancontribute to the resolution of legal problems.Fourth, students discovered that it is important to identify and collect dataduring the research. While students kept track of the completed surveys, they didnot consider how important it would be to find out how many hearings wereconducted and how many parties attended. While we were able to obtain thisinformation later, doing so was more difficult. As one student wrote, “One thing Iwould advise students to do in the future is check with the clerks in the OAHoffice . . . [T]hey will tell you how many litigants are [self-represented] and howmany UI hearings are scheduled for that day.” 123Fifth, students concluded it would have been useful to translate the survey intoSpanish. 124 We knew we were interested in language access but did not appreciatehow useful it would have been to survey people who did not speak or readEnglish and that some people would face the same problems taking the surveythat they face in the hearings.Finally, it is important to select a project with the right scope. We believe thiswas the right size project to enhance student learning because it offered “primarystudent control, a sense of ownership for the student, and the ability to see aproject through from initiation to completion.” 125 Because many law studentswill be new to survey design and data collection, the project does not need to121 Kruse, supra note 57, at 406-07. R122 Memorandum from Laura Kakuk, supra note 88. R123 Memorandum from Erin Hughes, supra note 107. R124 Id.125 Kruse, supra note 57. R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 29 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 45ambitious to be effective. In fact, a modest design may provide students a betterexperience and yield more reliable data.C. RecommendationsThe volume of UI appeals (more than 3000 in 2009) makes it impossible forevery party in every case to be represented at a hearing. 126 Other researchershave examined whether the experience of self-represented parties differs fromthose who have lawyers. 127 There is a concern, expressed both by advocates andby ALJs, that the presence of more lawyers could complicate hearings and drawthem out unnecessarily. A definitive answer to those questions is beyond thescope of this survey. What we can say with certainty is that most self-representedparties perceive a need for additional legal support. In the course of conductingthe survey, several issues emerged that are worth further consideration.What seems to be missing is a reliable mechanism to ensure that the partieswho most need lawyers in UI appeals have them. There are parties whose personalcircumstances—the novelty or complexity of their cases, mental or physicalillness, lack of literacy, or lack of fluency in English—make it difficult or impossiblefor them to navigate the hearing process without more assistance than an ALJcan or should provide in a hearing. Many people stopped by the survey tableasking for representation. It was such a frequent request that the students compiledand distributed a list of legal service organizations that provide free representationin UI cases. To the extent that there are lawyers available to representparties in UI appeals, it does no good if parties are unable to find them. As onestudent wrote:Going through the whole process, I learned how much of the problem alack of information is. These parties want to be represented, and they don’twant to risk losing because they don’t understand the proceedings, but theydon’t know where to go to ask for help. However, educating people on howto get legal services doesn’t solve the whole problem, there need to actuallybe legal services in place for them to benefit from. 128To that end, we recommend an assessment of whether existing legal serviceproviders do in fact have the capacity to provide legal assistance to everyone whoneeds it. Historically, the District of Columbia Bar Pro Bono Program has deferredto the statutory providers and their assessment of legal needs. 129 Yet, the126 2010 ANNUAL REPORT, supra note 23. R127 Shannon Portillo, Ajima Olaghere & Stephanie Ainsworth, The Adversarial Process of AdministrativeClaims: The Process of Justice in Unemployment Insurance Hearings (under review) (onfile with authors).128 Memorandum from Catherine Knight, supra note 68. R129 E-mail from Mark Herzog, Assistant Dir., D.C. Bar Pro Bono Program, to Faith Mullen(July 9, 2009, 11:46:00 EDST) (on file with authors).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 30 29-JAN-13 10:2646 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWCAP program reports receiving calls from only seventy-five claimants per month,approximately thirty percent of the total number of appeals. 130 In 2009 thosenumbers would have been 900 out of the more than 3000 UI appeals that werefiled. 131 The results from our survey coupled with the volume of cases suggestthat the majority of parties in UI appeals are not receiving enough legal informationor advice before the hearing.Recent revisions to forms and the OAH rules go a long way to make the processmore intelligible to self-represented parties. 132 The next step is to considerhow the revised forms and instructions could be supplemented in order to betteraddress the needs of parties in UI appeals. The American Judicature Society recommendsthe development of “forms and notices that particularize the issues tobe presented, which party bears the burden, what the standard of proof will be atthe hearing, and the consequences of not appearing or meeting one’s burden.” 133While not every party needs or even wants legal assistance, most parties wouldbenefit from a better understanding of the hearing process. The OAH has standardizedthe information presented to self-represented parties at the beginning ofUI hearings. 134 Nonetheless, it is difficult for parties to put this information togood use. As one ALJ said, for some parties the first introduction to what toexpect at a UI hearing is at the hearing itself. 135 When that happens, parties havelittle opportunity to use the information to shape their presentation at the hearing.For this reason, getting legal information to parties sooner is important.OAH is developing materials for self-represented parties and has already preparedan easy-to-read brochure on UI appeals. 136 This brochure is available onthe OAH website, and we recommend mailing it to parties along with the hearingnotice.Based on our research, we recommend that OAH develop additional materialsfor self-represented parties on preparing for the hearing, using documents, andconducting cross-examination. The American Judicature Society has emphasized130 See E-mail from Tonya Love, supra note 45. R131 2010 ANNUAL REPORT, supra note 23. R132 OAH Procedural Rules, OFFICE OF ADMIN. HEARINGS, http://oah.dc.gov/oah/cwp/view,a,3,q,593393,oahNav,%7C33003%7C.asp (last visited Aug. 15, 2011).133 Baldacci, supra note 69, at 460. R134 Based on our observation of UI hearings and conversations with the ALJs, OAH has alreadyincorporated some of the “best practices” to help self-represented parties. These include providingparties details about: (1) the order and protocols of an evidentiary hearing, (2) the elementsnecessary to prove or defend a claim, (3) the burden of proof, (4) the consequences of not demonstratinga necessary element, and (5) the kind of evidence that the ALJ will consider. Baldacci, supranote 69, at 459-60.R135 Focus Group, supra note 31. R136 The easy-to-read brochure is available on the OAH website at http://oah.dc.gov/oah/frames.asp?doc=/Oah/lib/oah/pdf/information/ui_faqs.pdf. We hope OAH will also include a copy when theymail the hearing notice to parties. There is some indication that at least 86 percent of survey participantsread the hearing notice, so inclusion of the brochure may be helpful to those individuals.

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 31 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 47the importance of providing information that self-represented parties can “understand,retain, and act on.” 137 Specifically, they suggest that self-represented partiesneed help understanding1. How to identify evidence relevant to prevailing on or defeating claims; 2.Procedures for obtaining such evidence; 3. The form that evidence maytake; 4. What facts must be demonstrated to make that evidence admissible(i.e., foundation); 5. The main objections to admissibility (hearsay, best evidence,etc.); [and] 6. The consequences of not having such evidence . . . . 138The new OAH resource center has the potential to provide much-needed legalsupport to both parties in UI appeals. 139In addition to materials for self-represented parties, it is important to developtraining materials for people who staff the resource center, as well as for newadvocates who are willing to represent parties in UI appeals. The cases whereadvocates are most needed are complex and contentious, 140 and advocates needfamiliarity with both UI law and OAH procedures. Training for advocates shouldemphasize “factual investigation and legal research of the statutory elements;subpoenas of witnesses and documents; the orderly and logical presentation of aclient’s story; the examination and cross-examination of witnesses including expertwitnesses; the preparation and submission into evidence of relevant documents;and the presentation of legal precedents.” 141 Ideally, attorneys whoprovide limited legal assistance in the resource center should have some experiencerepresenting parties in hearings. At a minimum, they should observe severalhearings.As valuable as a resource center can be, it is not a substitute for individualrepresentation. Resource center staff is necessarily constrained in that they canprovide legal information and offer some legal assistance, 142 but they cannot advocatefor one side or the other. There must be some mechanism to link partieswith lawyers who can advocate for them, and that mechanism must be informedby the federally mandated deadlines. 143 As with the adjudication of other federalbenefit appeals, the OAH must “balance the demands of accuracy, fairness, andtimeliness in the adjudication of claims.” 144 Given the importance of UI benefits137 Baldacci, supra note 69, at 460. R138 Id. at 461.139 Letter from Mary Oates Walker, supra note 49. R140 Emsellem & Halas, supra note 14, at 297-303. R141 Id. at 298.142 D.C. R. PROF’L CONDUCT R. 6.5 (2007).143 Emsellem & Halas, supra note 14, at 324 (observing that, absent special efforts, “the quick Rscheduling of [UI] hearings does not provide sufficient time for the [Volunteer Lawyer Program]coordinator to find an attorney.”).144 Jerry L. Mashaw, Unemployment Compensation: Continuity, Change, and the Prospects forReform, 29 U. MICH. J.L. REFORM 1, 15 (1996).

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 32 29-JAN-13 10:2648 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWas a safety net program, UI appeals are necessarily on a fast track, and neitherparties nor volunteer lawyer coordinators have much time to look for a lawyer. 145For that reason, it is important to ensure that lawyers are available when peopleneed them. Slowing the adjudication of cases is also problematic in the face ofstrict U.S. Department of Labor standards that mandate the resolution of sixtypercent of the cases within thirty days. A system that offers any kind of legalassistance in UI appeals must be designed to provide help quickly, ideally withoutthe need for a continuance.Finally, in order for the OAH to realize its statutory mandate to expedite “thefair and just conclusion of contested cases,” 146 the Council of the District of Columbiamust adequately fund the OAH. There has been a steady uptick in thenumber of UI appeals, and more generally in the scope of the OAH jurisdiction,but no commensurate increase in funding. The Council has acknowledged that,“[t]he Office of Administrative Hearings has traditionally been under-funded andunder-staffed.” 147 At the same time, D.C. is under considerable pressure fromthe Federal Department of Labor to meet statutory timelines. While the OAHmade considerable progress in FY 2010 toward meeting federal standards, 148 itdid so in part by reassigning judges from other case-types to hear UI appeals. 149It may not be feasible or wise to continue to divert ALJs from other work to hearUI appeals.We believe it is entirely possible for self-represented parties to obtain a fairhearing in a UI appeal, and the judges we spoke to and observed are deeplycommitted to this ideal. At the same time, parties in UI appeals overwhelminglywish they had access to more legal assistance before the hearing. It is our hopethat the OAH will continue to partner with the Access to Justice Commission, theDistrict of Columbia Pro Bono Program, local legal service providers and lawschools, and attorneys in private practice to put a system in place that will providemore legal assistance to parties in UI appeals.145 Emsellem & Halas, supra note 14, at 324. R146 Office of Administrative Hearings Establishment Act of 2001, supra note 4. R147 COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON PUBLIC SAFETY AND THE JUDI-CIARY, REPORT ON PR 18-629: “CHIEF ADMINISTRATIVE LAW JUDGE OF THE OFFICE OF ADMINIS-TRATIVE HEARING MARY OATES WALKER CONFIRMATION RESOLUTION OF 2010” 9 (2010), availableat http://dcclims1.dccouncil.us/images/00001/20100218125714.pdf.148 E-mail from Ann Yahner, Principal Admin. Law Judge, Office of Admin. Hearings, to ElizabethFigueroa, Admin. Law Judge, Office of Admin. Hearings (April 22, 2011, 12:06:00 EST) (on filewith authors).149 See Letter from Mary Oates Walker, supra note 49, at 8. D.C. is not alone in failing to Rallocate sufficient funds to the adjudication of UI appeals: Generally, “funding tends to be inadequateto process claims in accordance with timeliness demands and that, because of the structure of thefunding mechanism, funding always lags behind workload rather than anticipating it. Mashaw, supranote 144, at 19.R

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 33 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 49Dear Sir or Madam:APPENDIX AWe hope you will answer a short survey about your experiences in your unemploymentinsurance case. Law students from The Catholic University of Americaare researching whether self-represented parties in unemployment insurancecases are well prepared for their hearings and whether they use help from a lawyer.By filling out this survey, you will help us answer those questions.This survey is part of a larger project that will try to improve the experience ofself-represented parties before the Office of Administrative Hearings. While theOffice of Administrative Hearings is allowing the law students to conduct thissurvey, it is not part of the survey process and will not see your individual answers.This survey is completely confidential, and your name will never be connectedto your answers.We appreciate your participation. If you have any questions or concerns,please call Professor Faith Mullen at (202) 319-6613.Sincerely,/s/Faith MullenAssistant Clinical Professor

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 34 29-JAN-13 10:2650 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWAPPENDIX BThe purpose of this survey is to assess the need for legal representation duringAdministrative hearings. The Law Clinic of the Columbus School of Law at TheCatholic University of America conducts this study. Your answers will be analyzedby students and faculty from the law school independently of the Office ofAdministrative Hearings and will be keep confidential and anonymous.Section I. Demography profile. Mark one answer.1- Gender: male______ female________2- Race: African-American______ White________ Hispanic__________Other_______3- In which Ward of the District do you reside? _________________4- Are you (a) the employer____________ or (b) the worker__________________5- Age: younger than 20 _________ between 21 and 40 _________ older than 40_______Section 2. Preparation for your Hearing. This section asks about your level ofpreparation for your hearing. Mark the answer you agree more closely in eachstatement.You:Understand the purpose of the hearingKnow the employer had the burden of proof before thehearingKnow you might win the appeal if you were present for thehearing and the employer was notFeel like you knew enough about how the hearing wasconducted to be successful beforehandObtained information about the process from anywhere elseGathered information about your former employmentbefore the hearingUse all this information during the hearing in your caseHad a prepared statement for the judgeHad questions ready for the opposing partyWould have use a services of a free lawyer if could haveoneWould consent to a continuance to be helped by a lawyerStronglyAgree Agree Disagree N/A

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 35 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 51Were you aware of any free legal services available to you before the hearing?_____ Yes, but I decided not to use it. (Skip the next question)._____ No, I was not. (Please answer the next question).If you were not aware of any available legal services, what will be the best way tocommunicate the availability of legal services to you?_______ flyer _______ over the internet _______ via email ___________aletterDid you receive information from OAH by mail? Yes______ No______ Ido not remember________• If so, did you read through it before the hearing?• If so, did you feel that the information provided was enough to go forwardwith the hearing without an attorney?• If so, did you think the information provided was too complicated?What documents were included in the notification of the hearing?• Summons• Instructions• What to expect at the hearing• Responsibilities as the partyDid you come prepared to the hearing (i.e. paper, pen, copies of documentsneeded)Do you think you have a general understanding of the legal process?Did you do any other type of research by yourself before the hearing?Describe which typeWhy not?

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 36 29-JAN-13 10:2652 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWAPPENDIX CThe Columbus Community Legal Services of The Catholic University of Americais conducting this survey to assess the need for legal representation during administrativehearings. Your answers will be analyzed by students and faculty from thelaw school, independently of the Office of Administrative Hearings, and will bekept anonymous.Section I. Demographics1- Gender: Male ______ Female ________2- Race: African-American______ White________ Hispanic__________Other________________3- Are you (a) the employer or representing the employer____________ or (b)the employee __________________4- Age: 25 or younger _________ between 26 and 40 _________ between 41 and55 _______ older than 55 ________5- Primary language you speak at home: English ______ Spanish _______ Other_______________Section II. This section asks about your level of preparation for your hearing.Mark the answer you most closely agree with for each statement.I understood the purpose of the hearingI knew enough before the hearing abouthow it would be conductedI used documents during the hearing toprove my caseI prepared questions to cross-examine theopposing partyI would have used a free lawyer if I couldhave oneStronglyStronglyAgree Agree Disagree DisagreeWere you aware of any free legal services available to you before your hearingNo, I was not _____Yes, but I decided not to use them ______Yes, but they were unable to help _____Did you receive any coaching from a legal services provider before your hearing?

\\jciprod01\productn\D\DCR\16-1\DCR104.txt unknown Seq: 37 29-JAN-13 10:26THE PLURAL OF ANECDOTE IS NOT DATA 53Yes and I used it ___________ Yes, but I decided not to use it. __________No, I did not_____________Would you have agreed to postpone hearing to be helped by a lawyer? Yes_______ No _________Section III. This section asks about your impressions of the hearing.I was able to tell my side of the storyduring the hearingDuring the hearing, I understood theinstructionsThere were moments during the hearing Iwished I had been better preparedThere were moments during the hearing Iwished I understood the law betterI think an attorney would have beenhelpfulThe hearing met my expectationsStronglyStronglyAgree Agree Disagree DisagreeWere the instructions in the hearing notice clear? Yes _______No _______Do you feel the hearing notice gave you with enough information to go forwardwithout an attorney? Yes _____No______If not, what other information did you need?Thank you for your participation!

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\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 1 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACKAGAIN: REFLECTIONS ON DEVELOPINGAN EMPIRICAL PROJECTMary Spector*INTRODUCTIONDoreen 1 was in her late sixties when she first visited the law school clinic. Shelived alone in half of a two-family house and suffered from numerous healthproblems. Her only source of income was her Social Security retirement benefits.Eight years before coming to the clinic, she had been working in a hospital, a wageearner with, as she put it, money in the bank, when her only daughter becamegravely ill. For the next five years, Doreen did all she could to help before herdaughter died during surgery. By that time, Doreen had not only exhausted hersavings, but she had also exceeded the spending limits of at least two credit cardsjust to get by. When Doreen called her bank to say that she would be unable tomake payments on her cards, she spoke with a bank officer who had heard abouther troubles and was sympathetic regarding her financial situation. He informedher that a collection agency would take over the debt and that, if she could not pay,the bank would write the amount off as a bad debt or as a loss. She was relieved.As expected, a collection agency subsequently contacted her a few times butstopped when she did not respond. Although the debt appeared on her credit report,she understood it would remain there until paid or for seven years, whichevercame first.A few months later, Doreen was surprised when she began receiving phone callsregarding the debt. She was confused when the callers identified themselves becausethe company was not the same one that had contacted her previously. She believedthat the matter had been resolved. Nevertheless, she received a number of calls.Some came early in the morning, others late at night, and still others on holidayslike Christmas and Thanksgiving. On more than one occasion, Doreen felt* Associate Professor of Law and Co-Director, SMU Civil Clinic, Southern Methodist UniversityDedman School of Law; B.A. 1979, Simmons College; J.D. 1986, Benjamin N. Cardozo School ofLaw. The author wishes to extend special thanks to Professor Joseph Tulman and his colleagues andstudents at the University of the District of Columbia, David A. Clarke School of Law for their hardwork and hospitality in hosting the 4th Annual Bellow Workshop and for their patience in and dedicationto the publishing of this symposium issue of the Law Review.1 “Doreen” is a pseudonym. Unless otherwise noted, all quotations in this section are Doreen’swords as spoken to student attorneys in the initial intake interview or in one of their numerous subsequentconversations and are recorded in memoranda or other documents memorializing those interviewsand conversations. Records relating to the clinic’s representation of Doreen are on file in theSMU Civil Clinic.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 2 11-JAN-13 11:1856 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthreatened, as she did after one caller told her, “sell your house, old lady, and payyour bills.”When Doreen came to the clinic for her intake interview, she brought a statecourt petition that she said had been left on her front porch. She said the name ofthe plaintiff appeared to be the same as the company that had been calling her at allhours. She also brought several discovery requests that she said had been sent toher a few weeks earlier. They included requests for admissions that asked her,among other things, to admit that the debt was valid and that she owed the amountidentified in the suit. Unfortunately, by the time Doreen arrived at the clinic, thetime for responding had passed, which meant that the seventy-five requests for admissionswere deemed admitted under state law.The story of Doreen illustrates some of the obstacles facing consumers whofind themselves at the center of litigation to collect consumer debts. WhenDoreen arrived in the SMU Civil Clinic in the fall of 2007, the lawsuit against herwas essentially over. Unless the deemed admissions could be set aside, she wouldbe left without any defenses to the underlying lawsuit. Students and supervisorsset out to do what they always do at the beginning of an attorney-client relationship:They interviewed, researched and explored possible ways in which theymight be able to provide assistance. They developed facts and law sufficient tosupport a request that the court set aside the deemed admissions. They identifieddefenses that would be waived if not raised in pleadings, as well as potentialcounterclaims to offset any liability Doreen might have. They drafted discoveryrequests of their own and served them upon the plaintiff and when the plaintifffailed to respond, they filed a motion to compel. Eventually, they negotiated adismissal of the case and all claims with prejudice. Doreen prevailed and the studentattorneys had the satisfaction of winning their first case.Doreen’s story was also the seed for a long-term project exploring the litigationof consumer debt collection and documenting the widespread nature of lawsuitslike hers. The results of that project are the subject of a recent article. 2 Thisessay supplements the article by describing how the project grew out of Doreen’sstory. As part of a symposium issue marking the 4th Annual Bellow ScholarWorkshop at UDC David A. Clarke School of Law in November 2010, this essayalso reflects on the contributions of the Bellow Scholar program to the developmentof the project. 3Since the symposium, much has happened in the world of debt collection litigation.4 Legislative action in my own state of Texas has meant change for therules of procedure governing consumer collection litigation in some courts. 5 As a2 Mary Spector, Debts, Details and Defaults: Exploring the Impact of Debt Collection Litigationon Consumers and the Courts, 6 VA. L. & BUS. REV. 257 (2011).3 See infra Part IV.4 See infra notes 47-55 and accompanying text. R5 H. Bill 79, 82d Sess. § 5.02 (Tex. 2011) (enacted).

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 3 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 57result, the project that started after Doreen walked into the clinic in 2007 returnedto the clinic in the fall of 2011, becoming the basis for a second project todraft proposed statewide rules of procedure for collections in small claims cases.My goal in sharing Doreen’s story here is two-fold. First, it is to provide anexample of how our work with students and our clients can shift from representationto research to advocacy and back again. My second goal is to encourageothers—students, clinic supervisors, fellows and faculty—to consider the workthey do and its potential “to improve the quality of justice in communities, toenhance the delivery of legal services,” and “to promote economic and socialjustice,” goals that are at the heart of the Bellow Scholar program. 6Part I considers Doreen’s story as a story of representation in a law schoolclinic. Part II considers her story as a basis for developing a research projectexploring issues raised by the representation. It also reflects on the process ofconducting the project and contains a brief summary of the results. Part III showshow, even before the project was complete, its results could be used to highlightsome of the problems facing consumers like Doreen and begin to provide a basisfor education and reform. It also describes how research can be used as part of acurriculum with clinic students. Finally, Part IV reflects on the Bellow Scholarprogram’s contribution to the work of clinical teachers, their students and clients,and the communities in which they live.I. REPRESENTING CONSUMERS IN THE CLINICEach year the SMU Civil Clinic processes approximately 1100 applications forlegal representation. From those, clinic faculty maintain a docket of approximately50 open files on subjects ranging from landlord-tenant disputes to disputesbetween neighboring landowners, from deceptive trade practices and other consumer-relatedmatters to employment disputes, from insurance-related problemsto disputes with government entities and benefits-related problems.This case- or client-centered practice is a common feature of many law schoolclinics. 7 From time to time, however, clinic faculty at the SMU Dedman School ofLaw have ventured into new areas of practice as community and client needsarose. 8 For example, although clinic students routinely represent tenants in dis-6 See Announcement, Committee on Lawyering in the Public Interest, Bellow Scholar ProposalSolicitation (Aug. 23, 2008) (on file with the author); see also Announcement, The Bellow ScholarProgram: A Project of the Section on Clinical Legal Education of the Association of American LawSchools, 2001-2003 (on file with the author) (describing legacy of Gary Bellow and program created inhis memory); see also Jeanne Charn, Service and Learning: Reflection on Three Decades of the LawyeringProcess at the Harvard Law School, 10 CLINICAL L. REV. 75 (2003).7 See David A. Binder & Paul Bergman, Taking Lawyering Skills Training Seriously, 10CLINICAL L. REV. 191-97 (2003).8 This type of flexibility in clinic representation has been described as an element of communitylawyering. See Juliet M. Brodie, Little Cases on the Middle Ground: Teaching Social Justice Lawyeringin Neighborhood-Based Community Lawyering Clinics, 15 CLINICAL L. REV. 333, 344-46 (2009).

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 4 11-JAN-13 11:1858 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWputes with landlords and consumers in disputes with businesses, they have alsorepresented property owners under pressure from neighborhood groups as wellas owners of small businesses finding themselves the victims of fraud ordeception. 9When Doreen first visited the clinic seeking representation, her applicationpresented several consumer law issues that fit easily into the clinic’s overalldocket. Within just a few months, nearly a dozen consumers approached theclinic seeking representation in similar cases. All of the applications shared atleast some characteristics with Doreen’s case. They described the recent filing ofa lawsuit against them to collect a debt arising out of a consumer credit card orcell phone account. All cases were filed by plaintiffs who were not the originalcreditors but claimed to be assignees and who were often unrecognizable to theconsumers. All of the plaintiffs were represented by counsel who served petitionson consumers containing few facts. The petitions were often accompanied bypoorly drafted affidavits, which on their face often did not satisfy evidentiary orprocedural rules for admissibility, and bore characteristics of what by the autumnof 2010 had come to be known as robo-signing. 10In some cases, applicants claimed the debt was not theirs, others claimed creditorstold them their accounts had been written off years before, and still otherscould not understand how the amount sought in the lawsuit could so far exceed aspending limit imposed on an original account. Some of the applicants readilyadmitted they owed some amount of money but were embarrassed to admit thatfamily emergencies, medical problems and/or loss of jobs had caused them toborrow money which they had little means to repay. Eventually, bills mountedand debt collectors became involved, using a variety of methods to secure payment.Some of the methods were legitimate; some were not.From the supervisors’ point of view, the debt cases were good teaching casesthat fit into the general model of small-case, individual representation that iscommon in many clinics. 11 In addition to discrete issues of basic contract law, thecases presented the potential for a thorough investigation of facts to determinethe availability of potential counterclaims under federal and state law. They alsogave students the opportunity to draft pleadings, motions and discovery requests.Although full trials rarely occurred, many of the cases provided opportunities for9 Movement outside the typical clinic docket can have a positive collateral effect on the institutionsinvolved in the dispute in ways not always possible in the typical case or client-centered docket.See also Sameer M. Ashar, Law Clinics and Collective Mobilization, 14 CLINICAL L. REV. 355 (2008)(advocating movement away from “canonical” approaches to clinical education).10 See Gretchen Morgenson & Andrew Martin, Big Legal Clash on Foreclosure is TakingShape, N.Y. TIMES, Oct. 21, 2010, at A1 (defining robo-signing); see also Peter A. Holland, The OneHundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in DebtBuyer Cases, 6 J. BUS. & TECH. L. 259, 263 (2011).11 See Ian Weinstein, Teaching Reflective Lawyering in a Small Case Litigation Clinic: A LoveLetter to My Clinic, 13 CLINICAL L. REV. 573, 575 (2006). See also Brodie, supra note 8.R

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 5 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 59contested motion hearings and formal mediation conferences. All provided opportunitiesfor careful client counseling in a context in which the student attorneyscould claim ownership of the matter and reflect on it in a way that enhancedtheir learning experience. 12There were drawbacks to representing consumer collection cases in the clinic.After successfully representing two or three consumers in collection cases, someclinic faculty found that the similarity of the cases provided the students with fewopportunities for creativity. Simply entering an appearance or serving discoveryrequests was often enough to result in a voluntary dismissal. If no counterclaimshad been raised, the case was over. Although a dismissal appeared to be a victoryfor the client, there was always the chance that the debt might reappear as thesubject of another collector’s calls or worse, another lawsuit. 13 Moreover, manyof the student attorneys were not sure there was much they could do (or muchthey wanted to do) to help the applicants. After all, many applicants admittedthey owed some amount, but it just was not clear how much. “I pay my debts,”one student told me. “Why should I help someone avoid hers?”The drawbacks also presented unique teaching opportunities. With guidance,students began investigating the facts more deeply. As they explored the law governingthe creation and collection of consumer debts, student attorneys learnedthat federal and state laws provided debtors with rights that needed protection. 14They learned to read documents with a critical eye, explore evidentiary issues andchallenge their own assumptions. Through their representation of consumer debtors,students appreciated the difficulty most debtors would have in masteringrules regarding evidence, procedure and burdens of proof, as well as the substantivelaw governing collection practices. Student attorneys also learned that theirpresence in the lawsuit on behalf of their clients was a game changer that couldalter the outcome significantly. 15 Like most clinic students, they learned by en-12 See Weinstein, supra note 11. R13 See Richard J. Dalton, Jr., ‘Zombie Debt’: When collectors haunt you, NEWSDAY, Feb. 8,2008, available at http://www.kaulkin.com/files/2008-02-08_Newsday.com.pdf. See also Robert Berner& Brian Grow, Prisoners of Debt, BUS. WK., Nov. 12, 2007, available at http://www.ftc.gov/os/comments/debtcollectionworkshop/529233-00062.pdf.The Government Accountability Office reportedthat some estimate as much as half of all consumer credit card debt is sold multiple times. UNITEDSTATES GOVERNMENT ACCOUNTABILITY OFFICE, CREDIT CARDS: FAIR DEBT COLLECTION PRAC-TICES COULD BETTER REFLECT EVOLVING DEBT COLLECTION MARKETPLACE AND USE OF TECH-NOLOGY 29 (2009) [hereinafter GAO REPORT]. See also Asset Acceptance Capital Corp., What WePurchase, http://www.assetacceptance.com/sell/Purchase.aspx (advertising that it purchases chargedoffreceivables at all stages of delinquency, including fresh, primary, secondary, tertiary andwarehouse).14 See Fair Debt Collection Practices Act, 15 U.S.C. § 1692. See also TEX. FIN. CODE§§ 392.001-92.404 (West 2011).15 See generally Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limitsof Legal Change, 9 L. & SOC’Y REV. 95, 114 n.45 (1974) (exploring how and why parties with attorneysfare better in all types of representation).

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 6 11-JAN-13 11:1860 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWgaging in some of the practice skills associated with being a lawyer: interviewingclients and drafting answers, counterclaims, discovery requests, and motions.Equally important, they also began to think critically about the role of lawyers onboth sides of this type of litigation. 16Over a short period of time, the number of cases appearing in the clinic increasedand the “real education” began. 17 Students and supervisors believed thattheir cases were not isolated, but instead were part of a larger pattern in whichrepeat players appeared to flout rules of evidence, procedure and professionalresponsibility to transform their delinquent credit card accounts into legally enforceablejudgments. 18 The clinic program was designed to encourage reflectionon the broader ethical and social dimensions of lawyers’ work, and as a resultstudents engaged in this clinic began to see the cases in a new light. They startedto see their work as essential to the system of justice. They were not helpingpeople avoid debts; they were consumer advocates, making sure those invokingthe power of the courts did so with respect for their clients, the system, and itsrules.II.MOVING FROM REPRESENTATION TO RESEARCHA. ContextIn February 2007, just a few months before Doreen walked into the Clinic, theFederal Home Loan Bank Corporation announced it would stop buying what itconsidered to be the riskiest of the subprime home mortgages. 19 A few monthslater, Moody’s and Standard & Poor’s, the nation’s leading rating agencies, downgradedtheir ratings of billions of dollars worth of securities, many of which werebacked by those risky mortgages. 20 A Senate report published in 2011 creditsthese actions as critical events in bringing about the economic crisis of 2008 andthe resulting downturn of the nation’s economy. 2116 See Kimberly O’Leary, Clinical Law Offices and Local Social Justice Strategies: Case Selectionand Quality Assessment as an Integral Part of the Social Justice Agenda of Clinics, 11 CLINICAL L.REV. 335, 339 (2005) (describing social justice mission at core of clinical legal education); Peter TollHoffman, Clinical Scholarship and Skills Training, 1 CLINICAL L. REV. 93 (1994).17 See Roy Stuckey, Teaching With Purpose: Defining and Achieving Desired Outcomes inClinical Law Courses, 13 CLINICAL L. REV. 807, 812-13 (2007).18 See Galanter, supra note 15. R19 Federal Reserve Bank of St. Louis, The Financial Crisis: A Timeline of Events and PolicyActions, http://timeline.stlouisfed.org/index.cfm?p=timeline (last visited May 20, 2012).20 Id.21 STAFF OF S. COMM. ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS, PERMANENTSUBCOMM. ON INVESTIGATIONS, WALL STREET AND THE FINANCIAL CRISIS: ANATOMY OF A FINAN-CIAL COLLAPSE 47 (2011), available at http://www.hsgac.senate.gov/download/report-psi-staff-reportwall-street-and-the-financial-crisis-anatomy-of-a-financial-collapse.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 7 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 61At the time, however, consumer debt continued to climb throughout 2007 atan annual rate of 5.8%. 22 As consumer debt grew, so did the industry concernedwith collecting those debts, which was employing new technologies to increaseproductivity. 23 The growing industry also generated a growing number of consumercomplaints to the Federal Trade Commission. In 2007, consumer complaintsregarding collection practices by third-party creditors increased byapproximately 20% and accounted for more than 25% of all complaints receivedby the agency. 24To respond to the increase in the number of complaints from consumers, andto explore the effects of the technological advances that contributed to the phenomenalgrowth of the collection industry, the Federal Trade Commission conveneda public workshop to explore the modern practice of collecting consumerdebts. Held in the fall of 2007, the workshop brought together representatives ofthe finance and debt collection industries, consumer advocates, attorneys, andothers. 25 During discussions about the tremendous change in the collections industrybrought about by technology and sheer volume, consumer advocates fromaround the country voiced concerns regarding a range of issues similar to theones present in Doreen’s case. Among the problems identified were the inadequacyof information available to consumers regarding the debt, problems withcredit reporting by debt collectors, and the use of mobile phones and other communicationstechnologies to communicate with consumers. 26 Other concerns relatedto problems consumers faced in defending themselves in collectionlitigation, particularly in litigation initiated by debt buyers. 27 The problems describedsounded like the ones student attorneys faced when representing clinicclients: lack of adequate service, insufficient notice resulting from thinly pleadedcomplaints, and lack of representation. 28 Although industry representatives re-22 FEDERAL RESERVE G.19 STATISTICAL RELEASE (2012), available at http://www.federalreserve.gov/Releases/g19/.23 See Spector, supra note 2, at 264-65. R24 FEDERAL TRADE COMMISSION, ANNUAL REPORT 2008: FAIR DEBT COLLECTION PRACTICESACT 4-5 (2008), available at http://www.ftc.gov/os/2008/03/P084802fdcpareport.pdf.25 FEDERAL TRADE COMMISSION, COLLECTING CONSUMER DEBTS: THE CHALLENGES OFCHANGE, A WORKSHOP REPORT 2 (2009) [hereinafter WORKSHOP REPORT].26 Id. at 28, 34.27 See Spector, supra, note 2 at 265-66. See also, Holland, supra note 10. R28 WORKSHOP REPORT, supra note 25, at 55-58. Recognizing the absence of empirical evidence Rrelating to litigation, the FTC then convened a series of roundtable events to more fully explore thelitigation of consumer debts. Id. at 66. In its report of those roundtables, the Commission concludedthat the system was broken and needed fixing, though it also noted a continued absence of empiricaldata. JON LEIBOWITZ ET AL., FEDERAL TRADE COMMISSION, REPAIRING A BROKEN SYSTEM: PRO-TECTING CONSUMERS IN DEBT COLLECTION LITIGATION AND ARBITRATION 6, 15-16 (2010) [hereinafterBROKEN SYSTEM].

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 8 11-JAN-13 11:1862 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWluctantly acknowledged some of the advocates’ concerns, they also marginalizedtheir significance as anecdotal and unsupported by hard data. 29B. The ProjectBy the end of 2007 the clinic’s experience representing Doreen and others likeher became more than anecdotal. It became the prototype for a project to beginto provide the data necessary to demonstrate the existence of the concerns raisedby consumer advocacy groups. The goal was to look at litigation files in casesinitiated by debt buyers to determine whether Doreen’s case was representativeof others or whether it was an aberration. Could one identify the original creditoror the date of default? Were facts alleged showing the plaintiff’s relationship tothe debt? Did defendants appear in the litigation? Were default judgments common?Did consumers retain counsel? Did the presence of counsel change theresults, and if so, how?I hypothesized that the data regarding suits by debt buyers would establishthat the cases share at least five characteristics: (1) plaintiffs’ pleadings containedfew factual allegations; (2) most cases resulted in a default judgment; (3) consumerswaived important rights; (4) few attorneys appeared on behalf of consumers;and (5) when attorneys did appear on behalf of a consumer, they made a differencein the outcome of the litigation.I knew that an examination of the contents of court files was necessary togather this information; a review of docket sheets would not suffice. Doing soefficiently, however, was a challenge. Because the contents of case files were notavailable electronically in my jurisdiction, much less remotely, examining theircontents would require researchers to visit the courthouse and pull files fromshelves for review one at a time. Accordingly, I considered working in anotherjurisdiction that maintained searchable electronic files or permitted some form ofremote access. Throughout the spring of 2008, I explored available options informal and informal discussions about the project with faculty, researchers andpractitioners at a series of conferences and workshops. 30Although a great deal of attention at the time was devoted to the growingsubprime mortgage meltdown, there were a number of parallels between collectionof unsecured consumer debt and the growing foreclosure crisis. For example,29 See WORKSHOP REPORT, supra note 25. R30 One of the first steps was attending a conference in May 2008, titled Emerging Issues inSubprime Lending, hosted by Professor Linda Fisher, one of the 2011-12 Bellow Scholars at SetonHall University Law School’s Center for Law and Social Justice and attended by law faculty, clinicalteachers, housing professionals and practitioners in legal aid programs. See Call for Papers, EmergingIssues in Subprime & Predatory Lending Research: Analysis & Advocacy, A Conference for LeadingScholars and Activists, Seton Hall Law School, Newark, N.J. May 8-9, 2008 (on file with the author). Ialso attended the AALS 2008 Conference on Clinical Education, http://www.aals.org/events_2008clinical.php.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 9 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 63courts began to question the standing of entities seeking judicial foreclosure ofresidential mortgages in much the same way that consumer advocates questionedthe standing of debt collectors as assignees of original creditors. 31 These parallelssparked interest in the project and generated encouragement and ideas about thetypes of information that might be gathered and how to collect it. 32After attending an intensive workshop on conducting empirical legal research,33 I decided to concentrate my efforts in my own jurisdiction. I began torefine the categories of data to be collected and met with court personnel todiscuss how to access court records for review. With the assistance of an expert instatistical sampling, Dr. Lynne Stokes of Southern Methodist University, I decidedthat cluster sampling could be used to randomly select cases within a marginof error of three to five percent. 34 By mid-July 2008, shortly after the FDICseized control of California-based IndyMac, signaling one of the nation’s largestfinancial failures, 35 we began to collect the litigation data that would form thebasis of my study. The process of collecting a sample cluster and gathering thedata continued throughout the remainder of the summer of 2008 and into fall. Byearly November 2008, preliminary data appeared to confirm many of the anecdotalreports industry representatives had largely dismissed the previous year. 36C. Collecting and Thinking About the DataThroughout the fall of 2008 and the first half of 2009, I worked with a graduatestudent in statistics to organize the data for presentation. The information collectedfell into one of thirty categories that we arranged into four major subjectareas. The first included identifying information about people and entities involvedin the litigation—the parties and their attorneys, if any—as well as entitiesnot involved in the litigation, such as the original creditors. The second categorycontained defensive information, including information about service on the defendant,appearance, and whether any defenses or counterclaims were asserted.31 E.g., Wells Fargo v. Farmer, 18 Misc. 3d 1124 (N.Y. Sup. 2008) (holding that plaintiff lackedstanding to sue for foreclosure where the plaintiff did not establish valid assignment prior to time suitwas filed); Davenport v. HSBC Bank, 739 N.W.2d 383 (Mich. App. 2007).32 Important early encouragement came from The American Bar Association’s Section of LitigationResearch Fund, which provided early support for travel and research assistance. See Letterfrom American Bar Association, Section of Litigation to Professor Mary Spector (Apr. 28, 2008) (onfile with author).33 The 7th Annual Conducting Empirical Legal Scholarship Workshop, cosponsored by NorthwesternUniversity Law School and Washington University in St. Louis School of Law. The conferencewas held in Chicago on June 23-25, 2008 and was conducted by Professors Lee Epstein andAndrew D. Martin as conference faculty.34 See Spector, supra note 2 at 277-79. R35 See Kathy M. Kristof & Andrea Chang, Federal Regulators Seize Crippled IndyMac Bank,L.A. TIMES, Jul. 12, 2008, http://articles.latimes.com/2008/jul/12/business/fi-indymac12.36 See supra note 25 and accompanying text. R

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 10 11-JAN-13 11:1864 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWThe third category included information about claims alleged in the petition regardingthe amount sought and method of calculating it, as well as details, if any,of charges for late payments, spending beyond a credit limit, or other fees. Thiscategory also included data regarding the amount of attorneys’ fees sought andthe method used to calculate them. In addition, if a file contained affidavits, researchersrecorded the identity and business affiliation of the affiant and notedwhether supporting documents such as credit agreements appeared in the file.The last category contained information about outcomes, whether the cases resultedin a default judgment, dismissal without prejudice, agreed judgment, dismissalwith prejudice, or affirmative recovery for the defendant. 37Initial collection moved along fairly smoothly, but each time I looked at thedata to answer one question, additional questions arose. Resolving these questionsoften required returning to the original files for re-examination, and thatmeant time: time to travel to the courthouse, review the files, code the information,and re-examine it. An example of these unanticipated issues related to theidentity of the original creditors. Although not parties to the suits, the identificationof the original creditor is nevertheless important in the litigation, not onlybecause it provides the consumer with notice of the nature of the claim, but alsobecause improper articulation of a corporate entity’s name can prove fatal topotential counterclaims or third-party claims for affirmative relief. 38Initial review of the data revealed 112 cases in which “Citibank” had beenidentified as the original creditor; however, another twenty-eight cases identifiedan original creditor by names that contained some form of the word “Citi.” Becauseof the possibility that differences in names were attributable to the use ofabbreviations when coding, I was unwilling to draw any conclusions from thisinitial review. As a result, re-examination of the files was necessary to verify theprecise names used in the court files. Indeed, re-examination of the files revealedthat the name “Citibank” was used to identify the original creditor in just seventy-sevencases, while the name “Citibank (South Dakota)” was used in thirtyninecases with seven other variations used in the remaining cases. 39 One conclusionregarding this variety was that each variation in corporate name signified adifferent corporate entity. To test that conclusion, each of the variations waschecked against records maintained by Texas’ Office of Secretary of State. Not asingle one of the nine different variations of the “Citibank” name was registeredas a legal entity. Had a consumer wished to assert a counterclaim or obtain discoveryfrom any of these entities, she would have likely faced great difficulty.37 See Spector, supra note 2, at 277-78. R38 See Spector, supra note 2, at 284-85 (discussing variations in corporate names found among Rentities).39 Id. at 283.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 11 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 65This was just one of a number of similar issues that continued to arise in almostevery category of information. The process was still ongoing at the time ofthe 2009 AALS Conference on Clinical Legal Education, where preliminary resultswere first reported in connection with the Bellow Scholars program. 40 Eventually,the results of the project began to take final form and were ready forpublication by early 2011, just over three years after Doreen first walked in theclinic door. Some of the results were stunning. For example, nearly 95% of thecases lacked any information regarding date of default or calculation of theamount allegedly owed, information that can be essential to insuring due process.41 Likewise, an overwhelming majority of the case files contained affidavitssupporting collectors’ claims that had characteristics of robo-signing. 42 Whileonly 40% of all cases in the sample resulted in a default judgment—far fewerthan reported in some jurisdictions—the rate was nevertheless double that reportedfor all civil cases in the jurisdiction. 43 Fewer than 10% of the defendantsretained counsel. 44In addition, the data revealed unexpected findings. For example, more than aquarter of the plaintiff/debt-buyers in the sample were in violation of Texas lawwhen they filed suit without first obtaining state-mandated bonds to engage indebt collection. 45 In such cases, as in others, consumers waived not only potentialdefenses to collection, but also affirmative claims for relief. 46 In short, the studyprovided evidence to support the anecdotal claims of collection abuse inlitigation.Doreen was not alone.III.BEGINNING TO USE THE DATA IN A CHANGING ENVIRONMENTAs the first round of data collection came to a close in the fall of 2008, it wasclear that the nation’s economic health was seriously at risk and that individualconsumers were faring no better. 47 Accordingly, even before the final report waspublished, we started to share preliminary data with others through clinicprojects, conferences, and in working groups. In one early clinic project in the fall40 See Conference Materials, AALS Conference on Clinical Legal Education: Emerging Lawyers:Clients, Complexity and Collaboration in a Cross-Disciplinary Lens (May 5, 2009), available athttp://www.aals.org/documents/2009clinical/clinicalbrochureforweb.pdf.41 Spector, supra note 2, at 298. R42 Id.43 Id.44 Id.45 See TEX. FIN. CODE § 392.101 (2006) (requiring $10,000 bond to be filed with Secretary ofState).46 See Spector, supra note 2, at 281-82. R47 See David M. Herszenhorn, Bailout Plan Wins Approval; Democrats Vow Tighter Rules,N.Y. TIMES, Oct. 3, 2008, available at http://www.nytimes.com/2008/10/04/business/economy/04bailout.html?pagewanted=all.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 12 11-JAN-13 11:1866 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWof 2008, as clinic students continued to represent consumers in debt collectionlitigation, a student attorney and supervisor shared their experiences and the datacollected so far to educate volunteer mediators appointed by the courts in contestedcollection cases. 48At times, the presentation of preliminary data generated ideas for refinementof the analysis, as well as suggestions for immediate action to improve consumers’access to justice. For example, at a presentation in summer 2009, at roughly thetime of the creation of the Consumer Financial Protection Bureau, 49 I had justexplained that dismissals occurred in more than 60% of cases in which a consumerappeared, a South African clinician, known for his work in street-law programs,noted how helpful that information could be in counseling consumerswhere legal services were scarce. With great enthusiasm, he suggested that simplycounseling consumers about their rights and the value of appearing in court hadthe potential to spread clinic resources to large numbers of consumers withoutengaging in full and complete representation. 50Settings such as the 2009 and 2010 AALS Conferences on Clinical Education,in Cleveland and Baltimore, respectively, provided additional opportunities toshare information and experiences on a range of topics common to our clinicsand our clients. At the 2010 conference, an additional working group formed todiscuss strategies for approaching foreclosure and debt collection litigation aswell as efforts to protect consumers in post-judgment proceedings for collection.Among the many subjects discussed was the existence of robo-signed affidavits inforeclosure and collection cases, which weren’t widely reported until severalmonths later when they became front-page news. 51 By the following fall, after alarge national lender suspended its foreclosure activity because of admitted defectswith the affidavits it used to support many of its foreclosures 52 clinic studentsin Maryland, supervised by one of the participants in the Baltimoreworking group, joined in a motion seeking to certify a class of homeowners claim-48 Mary Spector, Presentation to SMU Center for Dispute Resolution, Collecting and LitigatingConsumer Debts: The Consumer’s Perspective (Sept. 5, 2008) (on file with the author).49 See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203§ 1011, 124 Stat. 1376 (2010); see also Creating the Consumer Bureau, http://www.consumerfinance.gov/the-bureau/creatingthebureau (last visited May 18, 2012).50 The comments to which I refer were made by Professor David J. McQuoid-Mason at the endof a presentation at the 7th International Journal of Clinical Legal Education Conference held atMurdoch University in Perth, Australia, July 9-11, 2009. See Detailed Conference Programme (2009)(on file with the author).51 See e.g., Morgenson & Martin, supra note 10. R52 David Streitfield, GMAC Halts Foreclosures in 23 States for Review, N.Y. TIMES, Sept. 20,2010, available at http://www.nytimes.com/2010/09/21/business/21mortgage.html.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 13 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 67ing their foreclosures were tainted by fraudulent affidavits 53 supporting theforeclosures.By the summer of 2011, some state and local jurisdictions had taken action toaddress some of the issues debt buyer litigation raised, particularly in small claimscourt. 54 Work of clinic supervisors and students in the University of Marylandclinic provided some of the background that led the State of Maryland to promulgatea number of new procedural rules for use in debt cases, some of whichtargeted cases initiated by debt buyers. 55 North Carolina appeared to take anapproach that would have broader application by applying debt collection proceduralrules without regard to the court in which the case was filed. 56 Similar effortsare currently underway in California as well, where Senate Bill 890 aims torequire that “the debt buyer has valid evidence in the form of business recordsthat the debt buyer is the sole owner of the specific debt at issue, the amount ofdebt, and the name of the creditor at the time the debt was charged off, amongother things.” 57Closer to home, in a special legislative session, the Texas legislature promulgateda new law that appeared to touch on these same issues. House Bill 79would make it possible for collection cases involving less than $10,000 to bebrought in a newly created small claims jurisdiction of the justice courts. 58 Thenew legislation also directed the courts to promulgate rules of procedure for thejurisdiction to be used in debt collection cases filed by assignees, lenders, anddebt collectors. 59While the SMU Civil Clinic had previously used the results of the Dallas projectto inform its direct representation of consumers in collection cases, HouseBill 79 provided clinic students with an opportunity to engage in advocacy of adifferent kind. As the fall 2011 semester began, a new group of students becameacquainted with the story of Doreen and the research that resulted from previousclinic representation as they embarked on a new rules-drafting project. This projectgave the clinic and the students the opportunity to consider systemic changeas a way to address client problems. It enabled them to think outside the confinesof existing rules to consider how alternatives might provide greater protection to53 Brendan Kearney & Danny Jacobs, Clinic Joins Foreclosure Motions, MD. DAILY REC., Nov.2, 2010, available at http://mddailyrecord.com/2010/11/02/clinic-joins-foreclosure-motions/.54 E.g., MASS. ANN. LAWS UNIF. SMALL CLAIMS RULES, Rule 2(b); see also MD. CODE ANN.,CTS. & JUD. PROC. §§ 3-306, 308, 509 (West 2012).55 Letter from Advisory Committee to the Court of Appeals (July 1, 2011) (describing proposedrule changes) (on file with author).56 Consumer Economic Protection Act of 2009, N.C. GEN. STAT. §§ 58-70-145–55 (2011)(prohibiting the filing of a lawsuit to collect a debt after expiration of the statute of limitations).57 S.B. 890, 2011-2012 Sess., at 1-2 (Cal. 2012).58 See supra note 5. R59 Id.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 14 11-JAN-13 11:1868 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWconsumers. 60 Some students explored developments in other jurisdictions, someobserved local court proceedings, and others explored opportunities for communityeducation. With weekly group meetings to share information and monitorprogress, student attorneys produced a draft set of rules. The Texas SupremeCourt’s Rules Advisory Committee is currently working on the issue. In themeantime, clinic faculty are considering other ways in which research that grewout of direct representation of clients can be used to supplement the clinic curriculum.Possible projects include additional drafting projects and communityoutreach.IV.REFLECTIONS ON THE PROCESSIt is still too early to tell what, if any, lasting impact this project will have onthe “quality of justice in communities . . . [or] in the delivery of legal services.” 61 Iam hopeful it may play some role in helping to promote economic and socialjustice. Although those goals are lofty ones that often seem beyond the reach ofan individual clinic teacher working within a single law school, they are exactlythe goals the Bellow Scholar Program seeks to promote.The program is named for Gary Bellow, a pioneer in clinical legal educationwhose impact in the field reaches far beyond his students and clinics at theHarvard Law School. 62 After his death, the American Association of LawSchools Section on Clinical Legal Education established the Bellow Scholar Programto honor him and his work. 63 Administered by the section’s Committee onLawyering in the Public Interest, the program selects clinicians who are embarkingon “innovative proposals designed to improve the quality of justice in communities,to enhance the delivery of legal services, and to promote economic andsocial justice.” 64Projects represent a variety of subject areas such as disability rights, 65 childwelfare, 66 consumer law, 67 criminal law 68 and clinical legal education 69 that re-60 The type of work may be more consistent with the type of work performed in public advocacyorganizations and elsewhere. See Deborah L. Rhode, Public Interest Law: The Movement atMidlife, 60 STAN. L. REV. 2027 (2008).61 See Announcement, The Bellow Scholar Program, supra note 6 (describing legacy of Gary RBellow and program created in his memory).62 See Symposium: The 25th Anniversary of Gary Bellow’s and Bea Moulton’s The LawyeringProcess, 10 CLINICAL L. REV. 1 (2003); see also GARY BELLOW: CLINICAL PIONEER AND TIRELESSWORKER FOR SOCIAL JUSTICE, http://www.udclawreview.com/bellow-scholars/ (last visited May 15,2012).63 See Announcement, The Bellow Scholar Program, supra note 6. R64 Id.65 E.g., Joseph Tulman, Using Disability Rights to Diminish Incarceration.66 E.g., Alan Lerner, Identifying the Red Flags of Child Neglect to Facilitate Evidence-BasedFocused Responses.67 E.g., Linda Fisher, The Links Between the Foreclosure Process and Vacant & AbandonedUrban Properties (a study of the “ripple effects” of the foreclosure crisis in Newark, New Jersey);

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 15 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 69flect the diversity of clinical education. 70 This diversity enables broad and farrangingdiscussions, not only about the topics of the projects, but also about thework’s relationship to the scholar’s teaching and clinic, as well as strategies forachieving the social justice or pedagogical goal of the project. This can occur becauseof the nature of the project itself, as in discussions related to the Robinson-Dorn/Schumacher project, designed to collect information about the role of legalfellows in clinic work. It can also occur when a participant realizes how he or shemight adapt methods used by others and integrate features of research or advocacyinto the framework of an existing clinical program. The common threads arethe project’s connection to the scholar’s clinic work and teaching and its potentialfor improving economic or social justice. Connections may arise from work on aparticular subject matter or located within a discrete geographic area. 71 They mayProfessor Judith Fox, Debt Collection: A Survey of Indiana Courts (an empirical study in response tothe FTC’s 2009 report concluding that the nation’s system of resolving disputes about consumer debt“is broken”).68 E.g., M. Chris Fabricant & Adele Bernhard, The Impact of CompStat-Based ‘Zero Tolerance’Policing on Low-Income Communities of Color (an empirical study of the impact of so-called “zerotolerance policing” on a small subsection of the South Bronx).69 David Santacroce, The Consequences of Institutionalization for the Teaching-Service Missionof Clinics; Michael Robinson-Dorn, Scott Schumacher, & Caroll Seron, Fellow Travelers (a study ofclinical teaching fellowships).70 This diversity is reflected in the range of projects Bellow Scholars have undertaken. The firstBellow Scholars were named in 2003 for a two-year term. They were: Jeff Selbin and Mary LouiseFrampton for their project, Evaluating Models of Legal Services Delivery; Doug Smith for his Workers’Rights Project; and Sophie Bryan for Ethical Issues in Group Representation Cases. The nextgroup of Bellow Scholars, for the 2005-06 term, were: Muneer Ahmad and Susan Bennet on behalf oftheir colleagues at American University’s Washington College of Law for their project, Services toClients Having Limited English Proficiency and Anthony Alfieri, on behalf of his colleagues at theUniversity of Miami School of Law for work in an interdisciplinary project, Community Health EducationRights Clinic. The 2007-08 group of Bellow Scholars included Brenda Bratton Blom for her TheCommunity Justice Initiative, Community Prosecution Project; the late Alan Lerner for Identifying theRed Flags of Child Neglect to Facilitate Evidence-Based Focused Responses; and Joseph Tulman forUsing Disability Rights to Diminish Incarceration. In addition to the author, the 2009-10 scholars wereFaith Mullen for her work, Access to Justice and Community Involvement in the DC Office of AdministrativeHearings; David Santacroce for his work with the Center for the Study of Applied LegalEducation (CSALE); and Michael Gregory and Susan Cole for their project, Evaluating Advocacy inTrauma-Sensitive Schools. See List of Scholars, attached to e-mail from Juliet Brodie, Co-Chair,AALS Section on Clinical Legal Education, Committee on Lawyering in the Public Interest (Sept. 7,2010) (on file with author). There are six Bellow Scholars in the 2011-12 cycle. They are: M. ChrisFabricant & Adele Bernhard for their work in the Bronx, The Impact of CompStat-Based ‘Zero Tolerance’Policing on Low-Income Communities of Color; Judith Fox, Debt Collection: A Survey of IndianaCourts; Linda Fisher, The Links Between the Foreclosure Process and Vacant and AbandonedUrban Properties; and Michael Robinson-Dorn, Scott Schumacher, & Caroll Seron, Fellow Travelers.E-mail from Michael Gregory and Juliet Brodie to lawclinic@lists.washlaw.edu (Jan. 13, 2011) (on filewith author).71 Linda Fisher’s project, as well as the joint project of Chris Fabricant and Adele Bernhard,provide excellent examples.

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 16 11-JAN-13 11:1870 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWalso arise from a particular form of clinic design, needs of a community or evenfrom the scholar’s reflection regarding supervision and teaching.An important component of the Bellow Scholar program is the support it offersthe scholars for the projects. Though non-economic in nature, the program’ssupport can be more valuable than any monetary award. 72 This support oftentakes place at the semi-annual gatherings that have become a regular feature ofthe program where scholars can receive guidance and encouragement in the useof collaborative and empirical techniques. Collaboration with and education bysocial scientists adds an important dimension to the work of Bellow Scholars. Theclinical teacher adept at traditional legal research may be unfamiliar with the bestpractices and protocols used by researchers outside the legal profession. The socialscientists offer not only guidance on research methods, but also a criticalperspective on the substance of the projects. Their perspective can be useful forclinical teachers at whatever stage of their research, especially because some havebecome regular participants at Bellow gatherings. As a result, their familiaritywith the work of the Bellow Scholars also enables them to offer an importantperspective on the projects’ development from year to year. 73Through the semi-annual gatherings discussed above, the program also encouragesscholars to accomplish the social justice goals that are its heart. Formalmeetings and workshops include brainstorming sessions to generate strategies fortargeting and implementing reform efforts, provide suggestions for collaboration,research and advocacy partners, as well as ideas to enhance the research andmaximize its impact. These formal opportunities also create an environmentwhere personal and professional relationships develop over common interests. 74CONCLUTIONIt is through the creation and maintenance of these relationships between andamong lawyers, social scientists, clinic faculty, and students that the Bellow Scholarsprogram encourages clinic faculty to look beyond the immediate legalproblems of individual clients to systemic approaches for improving the quality ofjustice in thier communities. This deepens our “appreciation of practice as a72 Professor Faith Mullen, a 2009-10 Bellow Scholar, should be credited for making this point.73 Dr. Rebecca L. Sandefur, Senior Research Social Scientist with the American Bar Foundation,and Dr. Corey Shdaimah, Assistant Professor and Academic Coordinator for the MSW/JD DualDegree Program at the University of Maryland, have been regular participants in the fall workshopssince the inception of the Bellow Scholar program.74 See Committee on Lawyering in the Public Interest, Bellow Scholar Proposal Solicitation(Aug. 23, 2008) (on file with author); see also The Bellow Scholar Program, supra note 6 (describinglegacy of Gary Bellow and program created in his memory) (on file with author).R

\\jciprod01\productn\D\DCR\16-1\DCR105.txt unknown Seq: 17 11-JAN-13 11:18FROM REPRESENTATION TO RESEARCH AND BACK AGAIN 71human enterprise, as a way of solving problems, as a way of thinking about theworld,” 75 and, hopefully, as a way of improving it.75 See Jeanne Charn, Service and Learning: Reflection on Three Decades of the Lawyering Processat the Harvard Law School, 10 CLINICAL L. REV. 75, 79 n.11 (2003) (describing early days of GaryBellow’s teaching).

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\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 1 11-JAN-13 11:24LOOKING THROUGH THE PRISM OF PRIVACY ANDTRESPASS: SMARTPHONES AND THEFOURTH AMENDMENTDr. Saby Ghoshray*INTRODUCTIONTechnology in the twenty-first century has dramatically changed our lives, butthe law has not kept pace with technological advances. The treatment ofsmartphones in Fourth Amendment jurisprudence is no exception. This is madeevident by the increasingly scattered outcomes of litigation involving the privacyinterests of smartphone owners. 1 As the cross-jurisdictional inconsistencies of judicialdecisions applying the Fourth Amendment to smartphones mount, I amdrawn to seek answers from two foundational pillars of the Supreme Court’ssearch and seizure jurisprudence: protection against invasions of privacy and thebulwark against trespass.In State v. Smith, 2 the Ohio Supreme Court confronted the widening gap betweentechnological advancement and the progress of the law. Wisely, the courtnoted that existing privacy doctrines may be ill-suited to today’s technologicallysophisticated cell phones. 3 Conversely, in People v. Diaz, 4 the California SupremeCourt refused to block the admission of evidence obtained during a war-* Dr. Saby Ghoshray’s scholarship focuses on constitutional law, corporate law, corporate governance,fourth amendment jurisprudence, and cyberspace law, among other fields. His work hasappeared in a number of publications, including the Albany Law Review, ILSA Journal of Internationaland Comparative Law, European Law Journal ERA-Forum, Toledo Law Review, GeorgetownInternational Environmental Law Review, Temple Political & Civil Rights Law Review, FordhamInternational Law Journal, Santa Clara Law Review, Michigan State International Law Journal,Loyola Law Journal, New England Law Review and Miami Law Review, among others. The authorwould like to thank Jennifer Schulke for her assistance in legal research and typing of the manuscript,and his beautiful children, Shreyoshi and Sayantan, for their patience and understanding. Dr.Ghoshray can be reached at sabyghoshray@sbcglobal.net.1 See Matthew Tokson, Automation and the Fourth Amendment, 96 IOWA L. REV. 581 (2011).See also Joshua A. Engel, Doctrinal Collapse: Smart Phones Cause Courts to Reconsider FourthAmendment Searches of Electronic Devices, 41 U. MEM. L. REV. 233 (2010), available at http://ssrn.com/abstract=1708469.2 920 N.E. 2d 949 (Ohio 2009).3 Id. See also Stephen J. Kobrin, With Technology Growing, Our Privacy Is Shrinking, THEPHILA. INQUIRER, Jan. 3, 2001, available at http://www-management.wharton.upenn.edu/kobrin/Research/The%20Philadelphia%20Inquirer.pdf(excellent discussion on the shrinking privacy space withthe advent of technology in communication).4 51 Cal. 4th 84 (2011), cert. denied 244 P.3d 501 (2011).

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 2 11-JAN-13 11:2474 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWrantless search of the defendant’s cell phone by law enforcement, failing torecognize a trespass into personal property. 5Courts have long struggled to chart a precise trajectory for Fourth Amendmentjurisprudence. 6 This quest for clarity has centered around two doctrinal pillars,as courts struggle to determine the scope, context and relevance of trespassand privacy in stabilizing the contours of Fourth Amendment doctrine. However,the incoherent judicial responses to warrantless smartphone searches may signalthe existence of uncertainty within the judiciary. Resolving this uncertainty requiresan examination of limits placed by the Fourth Amendment on warrantlesssmartphone searches. Seeking to peel back the interpretative gloss over this area,this article explores the constitutional contours of trespass and privacy while tracinga path forward for applicability of the doctrine to the world of smartphones.In addition to defining doctrinal parameters applicable to smartphones, I intendto chart a new vista of understanding in synchronizing the legal contours with thetrajectory of technological development.The development of Fourth Amendment jurisprudence over the last few decadeshas been shaped by two fundamental doctrinal developments. First, courtshave gradually shifted away from the common law doctrine of trespass in favor of5 People v. Diaz went to the California Supreme Court after an appellate court affirmed thedefendant’s conviction. See People v. Diaz, 81 Cal. Rptr. 3d 215 (Ct. App. 2008) (upholding a drugconviction based on a text message stating “6 4 80,” which referred to the sale of six ecstasy pills foreighty dollars). Since Diaz, several individuals have been convicted based on evidence obtained duringwarrantless searches of cell phones. See, e.g., United States v. Young, 278 F. App’x 242 (4th Cir.2008) (per curiam) (affirming reliance on a cell phone’s text messages to convict a defendant of heroindistribution and sentence him to 420 months incarceration); United States v. Santillan, 571 F. Supp. 2d1093 (D. Ariz. 2008) (relying on a cell phone’s call history to link a defendant to a marijuana distributionring); United States v. Valdez, No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008) (denyingmotion to suppress use of a cell phone address book and call history to demonstrate that the defendanthad been in contact with others in a drug conspiracy); People v. Shepard, No. H032876, 2008 WL4824083, at *1 (Cal. Ct. App. Nov. 7, 2008) (upholding conviction where police officer “looked at thetext messages in the cell phone because he knew that ‘cell phones are used to facilitate drug transactions’”);United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009) (upholding a conviction forintent to distribute crack cocaine based on call log information on a cell phone); see also Mark Miller,California Supreme Court Allows Warrantless Cell Phone Searches Incident to Arrest, WEXLER WAL-LACE LAW FIRM BLOG (May 11, 2011), http://blog.wexlerwallace.com/?p=809 (noting that cell phonescan be searched after arrest).6 For example, the Supreme Court has never articulated a clear-cut definition of the physicalrange of the search incident to arrest doctrine. The Justices have long found themselves embroiled inarguments over how far beyond the person of the arrestee may be considered “within immediatecontrol,” and subsequently have devised various constructs. In my view, the existing jurisprudentialinertia is borne out of a systemic reluctance to embrace postmodern privacy and general liberty concernsimplicated within the two-century old Amendment. Other scholars and commentators havediscussed this disconnect between technology and law. E.g., Jim Harper, Reforming Fourth AmendmentPrivacy Doctrine 57, AM. U. L. REV. 1381 (2008); see also Lyria Bennett Moses, RecurringDilemmas: The Law’s Race to Keep Up with Technological Change, U. ILL. J.L. TECH. & POL’Y, Fall2007, at 239.

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 3 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 75the doctrine of reasonable expectation of privacy, but the contemporary constructionof the doctrine is a far cry from Justice Harlan’s vision of a doctrine thatacts as a bulwark protecting individual privacy. Second, by relying on a rigid constructionof physical trespass, courts have failed to recognize law enforcementencroachment into the personal confines of individuals as trespass. The result ofthese shifts has been an incremental expansion of police power, as well as a constraintof individual privacy interests and the right to be secure within one’s personalspace.These developments prompt a fundamental question: How did the governmentand its law enforcement agencies gain judicial approval to violate the privacy ofcitizens with only the thinnest of excuses? Within the answer to this questionresides a realization that the trajectory of judicially approved warrantlesssearches has been misguided all along. As law enforcement enjoys judicial approvalto invade almost every sphere of privacy in our lives, the crucial need tofundamentally reexamine Fourth Amendment jurisprudence should not bedelayed. 7 This need for immediate reexamination of the doctrine is driven in partby the technological saturation of postmodern society, 8 and has been exacerbatedby the judiciary’s failure to apply the common law doctrine of trespass tosmartphones. 9Against this backdrop of a shrinking zone of judicially protected individualprivacy, technological advances have opened an engaging dimension throughwhich postmodern individuals live wired and connected lives. 10 For these wiredindividuals, access to this interconnected dimension—made possible by devicessuch as smartphones—is an indispensable part of life’s journey. Yet, just as tech-7 Law enforcement has enjoyed growing judicial acceptance of searches of cell phones incidentto arrest, prevailing under a growing panoply of judicially created exceptions to the Fourth Amendment.Police have prevailed under the automobile exception, inventory exception, exigency exception,and pursuant to consent. Consent searches can be conducted without probable cause or a warrant solong as police obtain free and voluntary permission to search the area, while the inventory exceptionallows an administrative cataloging of items found in an impounded vehicle, thus making it possible tofind a cell phone but difficult to justify searching its contents. Under the automobile exception, policeare allowed to conduct a warrantless search of a vehicle provided they have probable cause to believeevidence of a crime will be found in the vehicle. See, e.g., United States v. Fuentes, 368 F. App’x 95, 99(11th Cir. 2010) (per curiam) (approving search of cell phone incident to arrest, though not conductingthorough analysis of the issue); see also United States v. Murphy, 552 F.3d 405, 410-12 (4thCir. 2009) (upholding search incident to arrest of cell phone and rejecting argument that phones withlarger storage capacity should be treated differently than early-generation cell phones).8 See Tal Z. Zarsky, Law and Online Social Networks: Mapping the Challenges and Promises ofUser-Generated Information Flows, 18 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 741 (2008) (descriptivediscussion about technology-driven changes in communication through social networks).9 See generally Harper, supra note 6. R10 See generally Saby Ghoshray, Doctrinal Stress or in Need of a Face Lift? Examining FourthAmendment Applicability for Smartphones, 32 WHITTIER L. REV. (2012).

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 4 11-JAN-13 11:2476 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWnological advancements cement our dependence on access to this dimension, judiciallysanctioned law enforcement encroachments are on the rise.Although the judiciary has recognized this encroachment, they have yet to arriveat a coherent response to it. 11 Disproportionate judicial acquiescence toprosecutorial and law enforcement interests has resulted in a doctrine whosemanifold exceptions stifle the Fourth Amendment’s relevance to the modernera. 12 This abrogation of individual privacy interests can only be fully appreciatedin light of an understanding of the gravity of the violation that an individual subjectsthemselves to by permitting police to intrude into his or her smartphone. 13The possibility of an intrusion upon an individual’s personal space, even during aminor traffic stop, threatens to deprive them of their sacred individuality andruns counter to the constitutional grant of individual liberty. 14The objective of this article is two-fold. First, I argue for recognition of thespecial characteristics of today’s smartphones in Fourth Amendment doctrine.Such recognition should lead to a consideration of the harmful injury resultingfrom trespass in the form of warrantless searches of smartphones. Second, I seekto introduce a privacy-based prism through which warrantless searches ofsmartphones should be viewed. It is my hope that this observation provides the11 See supra note 5. R12 Here, I generally draw attention to excessive judicial deference to law enforcement’sprosecutorial interests, which has resulted in an erosion of individual privacy interests. Contextualrelevance within a systemic framework is critical to the evaluation of these two competing interests.The post-9/11 judiciary tends to restrict the contours of individual privacy more than necessary infurtherance of law enforcement’s investigative purposes. This is achieved by judicial imputation of anartificially high threshold of materiality to the interception of the evidence in question, providing lawenforcement with much wider latitude than necessary. In this construct, a “simple hunch,” rather than“probable cause,” serves a sufficient justification for an invasion of an individual’s privacy rights,eroding modern conceptions of individual privacy and liberty interests.13 Just as personal articles and belongings may be stored in a file cabinet, similar personalinformation is frequently stored inside of a smartphone. An individual’s life may revolve around herFacebook or Twitter account, and communicative exchanges may be executed via her smartphone,revealing information through the expressive means that the accompanying medium provides. Inmuch the same way that there is a need to protect identity and detailed personal information stored ina file cabinet or a personal computer, the same level of privacy should be accorded to a Facebook orTwitter account. It is important to recognize this fundamental disconnect between the judiciary’s understandingof the privacy space that remains in the wake of technological advancement and thereality of life as it is conducted on the internet. That is why commentators have assailed the tendencyof courts to unreflectively apply old constitutional jurisprudence to a new technological world. Eventhe Supreme Court has recognized these rapid social changes and the judicial care they demand:Rapid changes in the dynamics of communications and information transmission are evidentnot just in the technology itself, but in what society accepts as proper behavior. . . . At present. . . cell phone and text message communication are so pervasive that some persons mayconsider them to be essential means or necessary instruments for self-expression or even selfidentification.That might strengthen for an expectation for privacy.See City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2623 (2010).14 Cf. id.

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 5 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 77necessary impetus for the judiciary to take a fresh look at the danger of allowingwarrantless searches of smartphones, so that the fundamental liberty interests ofindividuals remain intact in the face of technological advancement.I. TRESPASS: A MISSING ELEMENT IN THE DISTORTING TRAJECTORY?The Framers’ concern for protection from physical trespass is at the core ofFourth Amendment. The construction of the Fourth Amendment reveals the desireof the Framers to protect against invasions of private homes by governmentofficials. Drawing from their notions of natural law, the Framers aspired to builda society free of governmental intrusion into individual privacy. Their disdain forthe intrusive search, as recognized by a host of other scholars, 15 manifested itselfin the reasonableness requirement of the Fourth Amendment. As I have notedelsewhere, 16 a reading of the plain text of the Fourth Amendment will compel usto see that the two clauses—the Unreasonableness Clause and the WarrantClause—are to be read in isolation and not in conjunction. 17 This would implythat the Framers intended the Fourth Amendment to secure privacy interestsfrom two distinct forms of governmental abrogation. This line of analysis isshared by noted scholar Akhil Amar. 18 While a comprehensive analysis of thisperspective is beyond the scope of this limited discourse, I have examined thisperspective more fully elsewhere. 1915 See infra note 24. R16 Ghoshray, supra note 10. R17 My view is informed by both my own understanding and other scholars’ viewpoints. Considerthis informative commentary by Thomas Y. Davies:There has been a widespread consensus during the twentieth century about the basic meaningto be attributed to each of the two clauses of the text. The first clause has been understoodto state a comprehensive principle—that the government shall not violate the “right tobe secure” by conducting “unreasonable searches and seizures.” The Supreme Court hasendorsed this understanding in numerous modern opinions, asserting, for example, that“[t]he essential purpose of the proscriptions in the Fourth Amendment is to impose a standardof ‘reasonableness’ upon the exercise of discretion by government officials . . . .” In fact,Justices from across the ideological spectrum have treated the first clause as the essence ofthe Fourth Amendment—even quoting it by itself as though it were the Fourth Amendment.The second clause of the text—which starts “and no Warrants” and is commonly called “theWarrant Clause”—has been understood to serve the more specific purpose of regulating warrantauthority. Its effect is to ban the use of a “general warrant”—a framing-era term for anunparticularized warrant (for example, ordering a search of “suspected places”), which wasalso commonly applied to a warrant lacking a complaint under oath or an adequate showingof cause.Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 557-58 (1999),available at http://ssrn.com/abstract=220868 or doi:10.2139/ssrn.220868 (omitting internal footnotes).18 See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 759(1994).19 See Ghoshray, supra note 10. R

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 6 11-JAN-13 11:2478 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWIf the Framers’ recognition of the inherent sanctity of individual homes is theguidepost to which the Fourth Amendment is anchored, the time has come toexamine why this same sanctity should not be extended to smartphones, which inmany ways act as the refuge for the postmodern individual. The Framers’ leerinessof the potential for government invasion of the home was reflected in SamuelAdams’ admonition:[T]hat the said Constitution be never construed to authorize Congress toinfringe the just liberty of the press, or the rights of conscience; or to preventthe people of the United States, who are peaceable citizens, fromkeeping their own arms; or to raise standing armies, unless when necessaryfor the defence of the United States, or of some one or more of them; or toprevent the people from petitioning, in a peaceable and orderly manner, thefederal legislature, for a redress of grievances; or to subject the people tounreasonable searches and seizures of their persons, papers orpossessions. 20The Fourth Amendment was predicated both upon the inherent sanctity of theindividual home and the Framers’ deep-rooted distrust of general warrants. 21 TheFramers sought to ensure that searches of homes based only on general warrantswould be prohibited. Protection against government intrusion, as structuredwithin the ban against warrantless searches, must therefore be recognized as thecentral operative concept of the Fourth Amendment protection against searchand seizure. This reality is reflected in the Framers’ discussions during the periodprior to the drafting and ratification of the Fourth Amendment:The most significant element of the amendment was . . . the generic conceptof [unreasonable search and seizure]. The amendment’s first clause, whichexplicitly renounces all unreasonable searches and seizures, overshadowsthe second clause, which implicitly renounced only a single category, thegeneral warrant. The Framers of the amendment were less concerned with aright against general warrants than with the broader rights those warrantsinfringed. . . . [t]he history that preceded the Fourth Amendment . . . revealsa depth and complexity that transcends language. To think of the amendmentas a right against general warrants disparages its intricacy. The amendmentexpressed not a single idea but a family of ideas whose identity anddimensions developed in historical context. 2220 DEBATES AND PROCEEDINGS IN THE CONVENTION OF THE COMMONWEALTH OF MASSACHU-SETTS HELD IN THE YEAR 1788 86-87 (Boston, William White, Printer to the Commonwealth 1856).21 Id.22 See WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING602-1791 757-825 (2009).

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 7 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 79Critics might question how I draw a connection between the sanctity of homesand smartphones. The answer may be found though an examination of the historyand scope of the constitutional protection from intrusion contained in the person,houses, and effects component of the Fourth Amendment. 23 In their quest todetermine how far Fourth Amendment protections extend, states have reachedinconsistent conclusions, determining variously that searches are to be prohibitedon all premises, on land only, or within the house. This is nothing new. The Framersstruggled to reach a consensus on the scope of Fourth Amendment protectionseven during the ratification debate. In trying to locate a terminal contour ofindividual privacy rights, the Framers found themselves locked in a dichotomybetween possession and property. The central issue of the debate during thisframing period thus became how to structure the textual framework of the FourthAmendment.Differing conceptions of protection characterized the debates surrounding theratification of the Fourth Amendment. For example, confronting the possessionpropertydichotomy, James Madison espoused a much broader view of protectedrights, adopting property interests as the organizing principle of privacy protections.24 On the other hand, Henry Lee argued vigorously for an amendment that23 Id.24 My analysis of the framing period’s views regarding privacy and general warrants has beeninformed and guided by various commentaries, historical letters, treaties and law review articles, onlya few of which are cited here. Among the law review articles and books, see generally JACOB W.LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT: A STUDY IN CONSTITUTIONAL IN-TERPRETATION (1966); Joseph J. Stengel, Background of the Fourth Amendment to the Constitution ofthe United States (pts. 1 & 2), 3 U. RICH. L. REV. 278 (1969); Anthony Amsterdam, Perspectives on theFourth Amendment, 58 MINN. L. REV. 349, 390-98 (1974); Luis G. Stelzner, The Fourth Amendment:The Reasonableness and Warrant Clauses, 10 N.M. L. REV. 33, 34-43 (1979-80); POLYVIOS G.POLYVIOU, SEARCH & SEIZURE: CONSTITUTIONAL AND COMMON LAW 1-19 (1982); Yale Kamisar,Does (Did) (Should) the Exclusionary Rule Rest on a ‘Principled Basis’ Rather than an ‘EmpiricalProposition’?, 16 CREIGHTON L. REV. 565, 571-79 (1983); Silas J. Wasserstrom, The Incredible ShrinkingFourth Amendment, 21 AM. CRIM. L. REV. 257, 281-95 (1984); Potter Stewart, The Road to Mappv. Ohio and Beyond: The Origins, Development, and Future of the Exclusionary Rule in Search andSeizure Cases, 83 COLUM. L. REV. 1365, 1372-80 (1983); Martin Grayson, The Warrant Clause inHistorical Context, 14 AM. J. CRIM. L. 107 (1987); John M.A. DiPippa, Is the Fourth AmendmentObsolete? Restating the Fourth Amendment in Functional Terms, 22 GONZ. L. REV. 483 (1986-1987);Clark D. Cunningham, A Linguistic Analysis of the Meanings of ‘Search’ in the Fourth Amendment: ASearch for Common Sense, 73 IOWA L. REV. 541, 550-59 (1988). Among the texts and writings of theframing period, see generally SIR EDWARD COKE, FOURTH PART OF THE INSTITUTES OF THE LAWS OFENGLAND 176-77 (Professional Books Ltd. 1986) (1644); 2 SERJEANT WILLIAM HAWKINS, PLEAS OFTHE CROWN 82 (1721) (one of the most complete contemporaneous treatments of criminal procedureavailable to the framers); 2 LEGAL PAPERS OF JOHN ADAMS 123-34 (L. Kinvin Wroth & Hiller B.Zobel eds., 1965). Among the letters of the framing period, see William Henry Drayton, A Letterfrom Freeman, (Aug. 10, 1774), reprinted in I DOCUMENTARY HISTORY OF THE AMERICAN REVOLU-TION 11, 15 (R.W. Gibbes ed., 1855, reprinted 1972); 3 THE DEBATES IN THE SEVERAL STATE CON-VENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 587-88 (Jonathan Elliot ed., 2d ed.1838, reprinted in 1937); LETTER FROM JAMES MADISON TO GEORGE EVE (Jan. 2, 1789) (reprinted in

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 8 11-JAN-13 11:2480 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWwould establish the sanctity of a “person’s houses, and papers.” 25 The Framers’understanding of the common law and Sir Edward Coke’s recognition that a penaltyprovision is required to deter trespassing 26 offer further evidence of theframing era’s view of the Fourth Amendment. Samuel Adams seems to haveviewed privacy protections based on property interests as generally broader thanthose based on possession:[O]ur homes and even our bedchambers, are exposed to be ransacked, ourboxes chests & trunks broke open ravaged and plundered by wretches,whom no prudent man would venture to employ even as menial servants;whenever they are pleased to say they suspect there are in the house waresetc. for which the dutys have not been paid. Flagrant instances of the wantonexercise of this power, have frequently happened in this and other seaport Towns. By this we are cut off from that domestick security which rendersthe lives of the most unhappy in some measure agreable. Those Officersmay under colour of law and the cloak of a general warrant, breakthro’ the sacred rights of the Domicil, ransack mens houses, destroy theirsecurities, carry off their property, and with little danger to themselves committhe most horred murders. 27These snapshots portray a framing era that gave great deference to the individual’spossessory interest in their belongings, and sought to codify within the Constitutiona privacy protection mechanism that would secure that possessoryinterest against government intrusion. This resulted in the incorporation of theword “effects” 28 to encompass a more comprehensive meaning of possessory objects.Understanding the broader possessory interest embodied within this wordis fundamental to recognizing the full spectrum of rights protected by the FourthAmendment. Even if a prohibition against physical trespass is not recognizedwithin the word “effects,” it nonetheless expands the meaning of protection fromintrusion to include protection against government deprivation of possessoryinterest. 2911 THE PAPERS OF JAMES MADISON 404–05 (Robert A. Rutland et al. eds., 1977)) (explicitly referringto the need to ban “general warrants” and to preserve jury trial).25 See Letter from Richard Henry Lee to Samuel Adams (October 27, 1787), reprinted in 2 THELETTERS OF RICHARD HENRY LEE 456, 457 (James Curtis Ballagh ed., 1914). See generally supra note24. R26 See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547,571-72, 630-31, 697-99 (1999).27 See A STATE OF THE RIGHTS OF THE COLONISTS (likely authored by Samuel Adams), reprintedin TRACTS OF THE AMERICAN REVOLUTION: 1763-1776 127, 150-51 (Merrill Jensen ed., 1967).28 Id.29 Id.

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 9 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 81Driven partly by a strict physical intrusion requirement under the warrantclause, post-Katz 30 Fourth Amendment jurisprudence witnessed a gradual unravelingof robust privacy protection in favor of a law enforcement-friendly framework.Subsequently, contemporary jurisprudence failed to recognize today’ssmartphone as an “effect” within the meaning of the Fourth Amendment intendedby the Framers. Recognizing this broader meaning of “effects” will resuscitaterights that have been dormant for some time. Embracing this vision ofprotection from government intrusion draws us closer to a privacy paradigm thatis consistent with the original intent of the Fourth Amendment. Though thismight seem simplistic, the alternative is the post-Katz exception-based FourthAmendment evolution. This ad-hoc evolution has led to inconsistent outcomesamong state and federal courts and has stripped the Fourth Amendment of itsrole as a robust defense against government intrusion into individual privacy.In allowing warrantless searches of smartphones in both People v. Diaz 31 andUnited States v. Curtis, 32 but declining to allow such a search in Ohio v. Smith, 33the judiciary has revealed its fractured understanding of the status ofsmartphones under the Fourth Amendment. Although this jurisprudential chaosdoes not bring us closer to establishing a definitive bright-line rule vis-à-vissmartphones, it does leave the door open for an independent analysis to takehold. United States v. Karo 34 established that warrantless searches are presumptivelyunreasonable and are permissible subject to only a few limited exceptions.This recognition of the “presumptively unreasonable” 35 nature of warrantlesssearches is more consistent with the fundamental values enshrined in the FourthAmendment than the post-Katz doctrinal evolution described above.II.PRIVACY: CAN THIS FLEETING RIGHT BE RESURRECTEDIN SMARTPHONES?The smartphone debate must be grounded on a core privacy doctrine. Morethan a century ago, scholars Samuel Warren and Louis Brandeis argued for adeeper and more fundamental right to privacy 36 than had been previously recognized.This discourse has since been muted by jurisprudential solicitude for thelaw enforcement and security interests of the state, 37 particularly in light of the30 Katz v. United States, 389 U.S. 347 (1967).31 119 Cal. Rptr. 3d 105 (Cal. 2011).32 635 F.3d 704 (5th Cir. 2011).33 124 Ohio St. 3d 163 (Ohio 2009).34 468 U.S. 705 (1984).35 Id. at 717.36 See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).37 See supra note 12. R

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 10 11-JAN-13 11:2482 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWpost-9/11 exigent circumstances framework. 38 In the face of these competing concepts,privacy rights have taken a backseat. Justice Brandeis’ observation is morerelevant today than ever before:Now the right to life has come to mean the right to enjoy life,—the right tobe left alone; the right to liberty secures the exercise of extensive civil privileges;and the term “property” has grown to comprise every form of possession—intangible,as well as tangible. 39Our determination of whether privacy is a fundamental issue that must be confrontedin cases involving smartphones is a function of our understanding of theimportance of underlying liberty interests in postmodern society. Warren andBrandeis used the right to privacy as a foundation upon which they establishedthe broader “right to be let alone.” 40 This plea for privacy in the face of nineteenthcentury technological advancement resonates today as society evolvesthrough further technological changes. Can Warren and Brandeis’ theory help ussort out the applicability of Fourth Amendment jurisprudence to smartphones?Here we must recognize that advances in communication technology, althoughbeneficial, have also created new opportunities for intrusion by law enforcement.Warren and Brandeis recognized the enhanced potential for intrusion into privatespace created by technological advancements. In their construction of the “rightto be left alone,” they revealed a deep understanding of an individual’s fundamentalprivacy interests, and cautioned against invasion of those interests. 41 Apremise of this construction is a conception of privacy as a building block, anessential ingredient of an individual’s fulfillment of his or her destiny. In the pursuitof such destiny, the individual must be given a private space that is imperviousto government intrusion. Taken to its logical conclusion, this constructionrequires that an individual be able draw the boundary lines of his or her ownsphere of privacy wherein he or she has the right to be left alone. 42If we apply such a right to privacy, analogous to that of the interior of a home,to the context of an electronic community of interconnected individuals, respectfor privacy commands non-intrusion of the home-like environment. These homelikeenvironments are created through smartphones which allow familial communitiesto interact though forums such as Twitter, Facebook, and MySpace. Thissphere of privacy arises in part as a result of the enhanced capabilities of modernsmartphones. Smartphones are the catalysts for the communication required toform the postmodern electronic community. By enabling communication38 See generally Saby Ghoshray, Untangling the Legal Paradigm of Indefinite Detention: Security,Liberty and False Dichotomy in the Aftermath of 9/11, 19 ST. THOMAS L. REV. 249 (2006).39 Warren & Brandeis, supra note 36, at 197. R40 Id. at 204-06.41 Id.42 Id.

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 11 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 83amongst all individual members of such a community, smartphones foster a senseof belonging within that community. An intrusion into an individual’ssmartphone has the collateral consequence of desecrating the privacy of both theindividual and the community. Technology’s explosion has reconfigured our wayof life. It has morphed the manner in which the postmodern individual conductslife, connects with the world, and occupies cyberspace. However, fundamentalprecepts of law must not change. They may shape their trajectory to adapt andaccommodate for the needs of a changing world, but the overlay of the law onthese altered lifestyles should not lead to deprivations of fundamental libertiessuch as the right to privacy and the right to be left alone.Technological sophistication has also revealed an Achilles’ heel of FourthAmendment jurisprudence: privacy violations in cyberspace involving the thirdpartydoctrine. Purchasing items online, for example, typically requires an individualto leave identifying information with a third party. Refusing to recognizethe privacy interests of the individual in the medium of that transaction creates alicense for law enforcement to access such identifying information online. Similarly,conducting a three-way video chat via smartphones may allow an individualto avoid the cost of travel and a conference room rental, but typically requires anonline registration through which the individual divulges identifying informationto a third-party vendor. Such acts should not constitute a waiver of the privacyinterests of these individuals. They would have retained their privacy rights hadthey gone to a conference room and closed the door before conducting theirmeeting. Therefore, the law—specifically the third-party doctrine—must bereconfigured so that our evolving technological landscape does not result in adiminution of the individual’s quantum of protected privacy.Societal dynamics and communicative modalities have changed since JusticeHarlan articulated the privacy-centric Katz test. 43 Updating Facebook, using hashtags to communicate with a chosen community on Twitter, and texting to expressemotions have become the communicative norm, and these behavioral patternsare protected by the same reasonable expectation of privacy articulated in Katz.43 See Katz v. United States, 389 U.S. 347, 361 (1967). Id. at 361 (Harlan, J., concurring). Whilereferring to Justice Harlan’s famous test in Katz, Peter Winn observed that[In] Justice Harlan’s concurrence on its merits, we have seen that in working on the reasonableexpectation of privacy test, he refined the test in his own way, adding both a subjectiveand an objective component. Perhaps he thought that the subjective component was neededto clarify that, although an objective expectation of privacy might exist, a subjective expectationmight not, as when a person in his (objectively private) home is overheard intentionallyspeaking in a loud voice out of on open window. . . . Perhaps Justice Harlan felt the subjectivecomponent of the test was still needed to mirror the old trespass element that an intrusionlack permission. However, when applying the test in subsequent cases, even Harlanhimself only referenced the objective component.Peter Winn, Katz and the Origins of the “Reasonable Expectation of Privacy” Test, 40 MCGEORGE L.REV. 11 (2009).

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 12 11-JAN-13 11:2484 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWHowever, a combination of a post-Katz shift away from the reasonable expectationof privacy doctrine, judicial dilution of individual privacy space, and theemergence of the third-party doctrine 44 has had the effect of gradually weakeningindividual privacy in technology-enhanced communication. Restoring the sanctityof privacy and recognizing its importance in postmodern life will bring the doctrinecloser to what was envisioned in the framing era.Why has Fourth Amendment jurisprudence failed to inculcate a robust frameworkto deal with the privacy issues presented by smartphones? Courts have employeda strict constructionist approach to reject claims of a reasonableexpectation of privacy made by individuals who have voluntarily shared informationwith a third party. 45 If we examine the pace of technological advancement 46and its symmetrizing impact on individuals within that society, 47 we are able to44 The need for either a reinterpretation or a complete overhaul of the third-party doctrine hasbeen argued from both sides of the aisle. Within the context of scholarship criticizing the doctrinethere remain two distinct groups. I consider the first group as trailblazers who began the movement ofprofessing the doctrinal difficulties created by technological advancement in the 1980s. See, e.g., ArnoldH. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 MICH. L. REV.1229 (1983); Scott E. Sundby, Everyman’s Fourth Amendment: Privacy or Mutual Trust between Governmentand Citizen?, 94 COL. L. REV. 1751, 1757-58 (1994); Gerald G. Ashdown, The Fourth Amendmentand the Legitimate Expectation of Privacy, 34 VAND. L. REV. 1289, 1315 (1981). While thesearticles questioned the doctrine’s continued viability even before the mass embrace of cyberspaceenabled social media, the second group has relied on much the same reasoning to argue even morepersuasively against the doctrine from a contemporary perspective. See, e.g., Daniel J. Solove, DigitalDossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1093-94 (2002);Susan W. Brenner & Leo L. Clarke, Fourth Amendment Protection for Shared Privacy Rights inStored Transactional Data, 14 J.L. & POL’Y 211 (2006); Susan Freiwald, First Principles of CommunicationsPrivacy, 2007 STAN. TECH. L. REV. 3; Stephen Henderson, Beyond the (Current) FourthAmendment: Protecting Third-Party Information, Third Parties, and the Rest of Us Too, 34 PEPP. L.REV. 975 (2007); CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEIL-LANCE AND FOURTH AMENDMENT 151-64 (2007); Jed Rubenfeld, The End of Privacy, 61 STAN. L.REV. 101, 113 (2008); Jack Balkin, The Constitution in the National Surveillance State, 93 MINN. L.REV. 1, 19 (2008). On the other hand, scholars have argued passionately as to why the doctrine shouldretain continued relevance in jurisprudence. See, e.g., Orin Kerr, Four Models of Fourth AmendmentProtection, 60 STAN. L. REV. 503, 519-22 (2007); Fred Cate, Government Data Mining: The Need for aLegal Framework, 43 HARV. C.R.-C.L. L. REV. 435, 460 (2008); Orin Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561 (2009).45 CUDDIHY, supra note 22, at 757-825. R46 See James X. Dempsey, Digital Search & Seizure: Updating Privacy Protections to Keep Pacewith Technology, 865 PLI/PAT 505, 523 (2006).47 By symmetry in this context, I draw attention to the symmetrizing pattern with which lawenforcement officials have conducted a massive campaign of misinformation, as I have shown elsewhereand others scholars have noted, within which a single-minded focus on national security hasbeen advanced as justification for almost anything. The pervasiveness of this campaign has imposedupon individuals within the society an artificial sense of insecurity that is difficult to disrupt. In muchthe same way, inertia acts upon a physical object to prevent any change from its initial status. Here Irefer to the monolithic tendency of an individual within a symmetric social order to follow the lead,‘like lambs to the slaughter.’ In this existence, the individual rationalizes not only her false needs forsecurity, but also her requirement of symmetry within the environment, in such a way that rationality

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 13 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 85get a better sense of the manner in which individuals become bound to instantcommunication-centric lifestyles 48 and the machines, like smartphones, that enablethose lifestyles. Yet, more often than not, courts have continued to makejudgments of individuals’ Fourth Amendment interests relying on doctrinalframeworks and sensibilities that do not comport with evolving societal expectationsof privacy. 49Ironically, today’s technology, and the individual’s immersion within it, compelsus to look deeper into the third-party doctrine. Without voluntarily disclosingidentifying information, a smartphone subscriber will not be able tocommunicate within their chosen community and virtually will not be able toexist within their self-selected society. Taken to its logical extreme, such an individualmay be prevented from pursuing their livelihood on account of their failureto adopt some fundamental social conventions. The disconnect that results,through which an individual must choose between maintaining their constitutionalprivacy protections and existing within postmodern society, emanates fromthe individual’s reliance on a third party technology provider and the law’s refusalto shield that interaction from governmental intrusion. 50The fundamental disconnect between the judiciary’s failure to recognize thedistortion of privacy protections caused by the third-party doctrine’s applicationto modern technology and individual aspirations toward privacy in today’s technology-drivenera has not gone unnoticed. As commentators have decried thisprivacy loss, even the Supreme Court has taken notice of the rapid accelerationof both societal changes and individual privacy loss:Rapid changes in the dynamics of communications and information transmissionare evident not just in the technology itself, but in what societyaccepts as proper behavior. . . . At present . . . [c]ell phone and text messagecommunication are so pervasive that some persons may consider them to beessential means or necessary instruments for self-expression, even self-identification.That might strengthen the case for an expectation for privacy. 51This recognition of the communicative needs of today’s individual predicatedupon their self-expression and self-identification is an encouraging sign. Moreover,findings that used to be legitimate for the Court in the era between the 1960scannot penetrate the artificial barrier structured around her consciousness. This distorted rationalityis therefore a vital ingredient in the perpetuation of symmetry. See Saby Ghoshray, False Consciousnessand Presidential War Power: Examining the Shadowy Bends of Constitutional Curvature, 49SANTA CLARA L. REV. 165 (2008).48 Id.49 I refer generally to the third-party doctrine and lack of specificity and contextual delineationin blanket applications of the doctrine, which accounts for the current doctrinal stress.50 See Saby Ghoshray, Privacy Distortion Rationale for Reinterpretation of the Third-Party Doctrineof the Fourth Amendment, 13 FLA. COASTAL L.J. (forthcoming 2012).51 City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010).

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 14 11-JAN-13 11:2486 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWand 1980s 52 may no longer be justifiable. Where technological realities mandatethat personal information be managed by third parties, the contours of the thirdpartydoctrine must be reinterpreted. This reinterpretation must be predicatedupon privacy. In evaluating the contours of this privacy, care must be given torecognize that an individual technology user’s interaction with her communicationprovider is qualitatively different from her interaction with law enforcemententities. While the former interaction, that of sharing subscriber information, is astepping stone of preprocessing necessary to complete communication, 53 the latterinteraction is much more meaningful, much more qualitatively significant inits intrusive nature, and likely to result in a vastly different outcome.CONCLUSIONThis article emerged from an identification of jurisprudential asymmetry inapplying Fourth Amendment analysis to smartphones. As courts faced with similarcases have reached inconsistent outcomes, we have been awakened to adeeper stress within the doctrinal foundations of Fourth Amendment jurisprudence.54 My inquiry has been prompted by the failure of modern jurisprudence toaccount for technology’s sophistication in the development of the law. As such,this concise analysis has focused on documenting the growing disconnect betweenthese two important aspects of postmodern lives.52 See supra note 22. R53 See PRESTON GRALLA, HOW THE INTERNET WORKS 87 (2001) (describing how e-mails aretransmitted).54 In my view, the meaning of the Warrant Clause is essentially dependent on a proper understandingof the “probable cause” language of the Fourth Amendment. The Constitution does notexplicitly define “probable cause.” The meaning of the term has been shaped over decades and hasentered our jurisprudence by means of judicial construct. Historical construction suggests that itsusage was intended for situations in which an applicant for a warrant was required to submit relevantand contextual facts to the magistrate, sufficient for a reasonable officer to engage in a determinationof probable cause. As the Supreme Court noted:In determining what is probable cause . . . [w]e are concerned only with the question whetherthe affiant had reasonable grounds at the time of his affidavit . . . for the belief that the lawwas being violated on the premises to be searched, and if the apparent facts set out in theaffidavit are such that a reasonably discreet and prudent man would be led to believe thatthere was a commission of the offense charged, there is probable cause justifying the issuanceof a warrant.See Dumbra v. United States, 268 U.S. 435, 441 (1925). “[T]he term ‘probable cause’ . . . means lessthan evidence which would justify condemnation.” See also Locke v. United States, 11 U.S. (7 Cr.)339, 348 (1813); see also Steele v. United States, 267 U.S. 498, 504-05 (1925). Furthermore, it is consideredto rest upon evidence which is not legally competent in a criminal trial, see Draper v. UnitedStates, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial, seeBrinegar v. United States, 338 U.S. 160, 173 (1949); United States v. Ventresca, 380 U.S. 102, 107-08(1965). For contemporary scholarship, see Timothy P. O’Neill, Beyond Privacy, Beyond ProbableCause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests, 69 U. COLO. L.REV. 3 (1998).

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 15 11-JAN-13 11:24SMARTPHONES AND THE FOURTH AMENDMENT 87First, the judiciary’s distorting journey through an inconsistent doctrinal developmenthas failed to incorporate the Framers’ view of protection from governmentalintrusion into the concept of private space protected by the FourthAmendment. This jurisprudential inconsistency is the result of conflating theoriginal meaning of the two clauses of the Fourth Amendment by failing to takeinto account early Americans’ focus on creating a bulwark against trespass intothe private confines of citizens. We must recognize that the framing period’s notionof justice and their constitutional construction were informed by their experienceswith governmental excesses. Yet, the transition from the framing era to thepost-industrial revolution’s capitalism introduced an era of special solicitude forlaw enforcement. As the judiciary has sublimated the fundamental liberty interestsof citizens to the administrative interests of government, I find that the originalintent of the Fourth Amendment has been subsumed by its exceptions. Thevictim has been the common law conception of protection against physical intrusioninto private space—an area that must be reinvigorated within the context ofsmartphones. This article is a reminder that, by making the scope, context, andboundary of a search warrant the operative content of the Fourth Amendment,the Framers ensured that their view of life and liberty would be reflected in theFourth Amendment.My second observation in this article focuses on the distortion of the FourthAmendment wrought by a judiciary which has given undue weight to governmentaladministrative objectives over individual privacy protections. This is problematicon several fronts, only a few of which I have outlined within this discourse.By expanding the exception paradigm, the judiciary has given law enforcement avirtual carte blanche to disregard the Fourth Amendment under any one of alitany of exceptions. Moreover, the judiciary is increasingly deferring doctrinalconstructions of the Fourth Amendment to precedential Supreme Court opinionswithout adequately analyzing the factual variations among the disputes. I haveaddressed this foundational problem with a deeper examination of the constitutionaltrajectory and it historical roots elsewhere. 55I do not see any material distinction among variants of technology-enabledsurveillance devices, beepers, thermal imaging devices, and GPS devices. 56 All of55 See supra note 10. R56 It can be argued that there may not be conceptual difference between beeper technology andGPS technology, except for the elegance of design and speed of communication. Others have notedthat:In many ways, beeper technology was in the 1980s what GPS technology is today. In the past,courts dealt with the use of beepers as tracking devices. While beepers are smaller and lesssophisticated than GPS devices, their use as law enforcement tools is strikingly similar to theuse of GPS devices. Both types of devices can be concealed on a suspect’s vehicle and allowpolice to obtain information related to the suspect’s location and movements. To analyzeelectronic tracking through the use of beepers, courts focused on Fourth Amendment con-

\\jciprod01\productn\D\DCR\16-1\DCR103.txt unknown Seq: 16 11-JAN-13 11:2488 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthem have a similar potential to intrude into the privacy of an individual’s dwelling.It is by examining the inner confines of a private residence that an individual’sbehavioral norms, private expressions, thoughts, and emotions are revealed.While technology establishes new social norms and modes of individual expression,the law has remained stale. Individuals express their emotions through textmessages and tweets. They reveal to a chosen community the inner workings oftheir minds. Recognizing the expanded capabilities of smartphones must lead usto the logical conclusion that their warrantless search is neither reasonably expectednor welcomed. It is predominantly due to difficulties in identifying boththe privacy and trespass issues that the exceptional place of smartphones in anevolving understanding of the Fourth Amendment has not gained currency in ourcurrent discourse. Life in the twenty-first century is increasingly conductedthrough modes of smartphone-enabled communication. Therefore, if privacy interestsbelong to these private spheres, why not extend the same privacy intereststo the owners and users to such communicative media as Twitter, Facebook andsmartphones? While we consider this, let us also emphasize the aspects of theFourth Amendment which protect against government trespass—aspects whichhave been subsumed through the judiciary’s excessive solicitude toward law enforcementinterests.cerns, trying to determine whether or not a “search” had occurred. In order to answer thisquestion, courts focused, among other things, on the method of attachment of the beeper, themonitoring of the beeper for tracking purposes, the expectation of privacy in public andprivate places, and the enhancement of police officers’ senses.Ramya Shah, From Beepers to GPS: Can the Fourth Amendment Keep Up with Electronic TrackingTechnology? 2009 U. ILL. J.L. TECH. & POL’Y 281, 281 (2009) (providing an example of law enforcement’suse of a GPS device to tie a suspect to crime).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 1 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES:PRIVACY IN THE PALM OF YOUR HAND?Margaret M. Lawton*INTRODUCTIONIncident to a drug arrest, a police officer removes a smartphone from thepocket of the defendant. The smartphone may have incriminating evidence—phone numbers, pictures, text messages, and e-mails. But can the officer examinethe smartphone on the scene or back at the station? Or does the officer need toshow probable cause and obtain a warrant before examining the phone? If thephone were instead the arrestee’s wallet or a cigarette package, under the searchincident to lawful arrest exception to the Fourth Amendment’s warrant requirementthe officer could open and search inside either of these “containers.” Anythingfound in the wallet or cigarette package, including evidence of a crime otherthan the one of arrest, could then lawfully be used against the arrestee. 1The United States Supreme Court has not yet had occasion to address thewarrantless search of a cell phone or smartphone incident to arrest. However, thevast majority of courts, both state and federal, to have considered the issue haveallowed warrantless searches of cell phones pursuant to this exception, reasoningthat cell phones are containers like any other found on an arrestee. The fewcourts to consider a warrantless search of a smartphone in similar circumstanceshave also allowed these searches. But should the search incident to lawful arrestdoctrine even apply to cell phones and smartphones? A smartphone is a minicomputerin your pocket with gigabytes of personal information—everythingfrom bank statements to photo albums may be contained on the device. Cellphones are generally somewhat more basic, yet they too can contain pictures, textmessages, and other personal information. While these handheld devices functionas phones, “telephonic capability no longer limits an electronic device’s identity* Associate Dean for Academic Affairs and Professor of Law, Charleston School of Law. Theauthor dedicates this article to the memory of her father, Thomas O. Lawton Jr. The author wishes tothank her research assistant Anna E. Hill, who provided valuable assistance on this article.1 See United States v. Robinson, 414 U.S. 218, 236 (1973) (finding that officer was entitled toseize heroin capsules in cigarette package searched incident to arrest for a driving offense becausethey were “probative of criminal conduct”); see also, e.g., United States v. Nohara, 3 F.3d 1239, 1243(9th Cir. 1993) (upholding search of bag defendant was carrying as incident to arrest); United States v.Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989) (citing cases in which courts have upheld searches ofwallets incident to a lawful arrest); United States v. McCray, No. CR408-231. 2009 WL 29607, at *2(S.D. Ga. Jan. 5, 2009) (noting that “both the Supreme Court and the lower federal courts haverepeatedly recognized the right of the police to open and inspect papers, wallets, address books, andsimilar items seized from an arrestee in order to determine whether they have evidentiary value”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 2 11-JAN-13 11:2690 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWto that of a phone alone.” 2 In light of the large amount of private informationthat these phones may contain, does current Fourth Amendment doctrine adequatelyprotect privacy interests in these devices? 3In State v. Smith, 4 the Ohio Supreme Court found that the ability of cellphones “to store large amounts of private data gives their users a reasonable andjustifiable expectation of a higher level of privacy in the information they contain.”5 Therefore, the court determined that officers must get a warrant beforesearching the contents of a cell phone incident to arrest. 6 Many scholars havesimilarly argued that the storage capabilities of cell phones and smartphones putthem in a different category than other “containers,” such as a wallet found on anarrestee. Some scholars have suggested a need for legislative and judicial reformin order to adequately protect an individual’s expectation of privacy in these devicesafter an arrest.I do not disagree with concerns that warrantless searches of these devices incidentto arrest could expose potentially large amounts of personal information tothe police without the prior approval of a neutral and detached magistrate. However,I question whether the advancement of technology in this area requires anexpansion or reformation of the search incident to arrest exception to the warrantrequirement. The United States Supreme Court has determined that the FourthAmendment, at its core, imposes a reasonableness standard, 7 and that standardhas been applied in a variety of warrantless settings. Regarding the search incidentto arrest doctrine specifically, the Supreme Court has held that “in the caseof a lawful custodial arrest a full search of the person is not only an exception tothe warrant requirement of the Fourth Amendment, but is also a ‘reasonable’search under that Amendment.” 8 As discussed below, most of the lower courts toconsider the issue have found that the storage capacity of a cell phone orsmartphone does not change the Fourth Amendment analysis. Moreover, the SupremeCourt has rejected any distinction between “worthy and unworthy con-2 Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of FourthAmendment Jurisprudence, 50 SANTA CLARA L. REV. 183, 213 (2010).3 This article focuses on information stored on the phone itself, not the information that can beaccessed via the phone’s internet functions.4 920 N.E.2d 949 (Ohio 2009).5 Id. at 955.6 Id.7 See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (noting that the “ultimatetouchstone of the Fourth Amendment is ‘reasonableness’”); United States v. Knight, 534 U.S. 112,118 (2001) (observing that the “touchstone of the Fourth Amendment is reasonableness”); see also,Cynthia Lee, Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis,81 MISS. L. J. 1133, 1143 (2012) [hereinafter Lee, Reasonableness] (noting that in “case after case” theCourt “has announced that the ‘touchstone of the Fourth Amendment is reasonableness’”).8 United States v. Robinson, 414 U.S. 218, 235 (1973).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 3 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 91tainers” and instead “has defined the term ‘container’ much more expansively.” 9Perhaps then, the question is not as complicated as it appears: Existing FourthAmendment doctrine arguably reaches the proper balance between privacy rightsand law enforcement needs in this area.Part I of this article will set forth the search incident to lawful arrest doctrine.Lower court cases where searches of cell phones and smartphones incident toarrest have been addressed will be examined in Part II. Part III will set forthsome of the scholarly commentary on the question of whether the search incidentto lawful arrest doctrine should apply to cell phones and smartphones. This sectionwill also describe California’s experience with legislative reform. Part IV willargue that courts should consider smartphones as containers under the searchincident to lawful arrest doctrine for several reasons: This approach is consistentwith Supreme Court precedent which has broadly defined containers, lowercourts have determined that they are unwilling to carve out an exception for cellphones and smartphones, and treating these phones as containers provides abright line rule for courts and police officers to apply. In concluding, I argue thatuntil and unless the Supreme Court provides additional guidance on this issue,lower courts have demonstrated that the current Fourth Amendment doctrine,specifically the search incident to lawful arrest exception to the warrant requirement,strikes an appropriate balance between privacy interests on the one handand law enforcement needs on the other.I. THE SEARCH INCIDENT TO LAWFUL ARREST DOCTRINEThe Fourth Amendment provides:The right of the people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated,and no Warrants shall issue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched, and thepersons or things to be seized. 10The United States Supreme Court has stated that “searches conducted outsidethe judicial process, without prior approval by judge or magistrate, are per seunreasonable under the Fourth Amendment—subject only to a few specificallyestablished and well-delineated exceptions.” 11 The search incident to lawful arrestis one of these exceptions, and is perhaps the one most frequently invoked by9 Cynthia Lee, Package Bombs, Footlockers, and Laptops: What the Disappearing ContainerDoctrine Can Tell Us About the Fourth Amendment, 100 J. CRIM. L. & CRIMINOLOGY 1403, 1414(2010) [hereinafter Lee, Package Bombs] (noting that the Supreme Court has defined the term“container” much more expansively than a “portable container[s] that can hold one’s personal belongings,such as suitcases, backpacks, and purses”).10 U.S. CONST. amend. IV.11 Katz v. United States, 389 U.S. 347, 357 (1967).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 4 11-JAN-13 11:2692 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWlaw enforcement. 12 This exception “derives from interests in officer safety andevidence preservation that are typically implicated in arrest situations.” 13 When aperson has been arrested, outside of the vehicle context, 14 only two requirementsneed be met for a search to be valid:First, there must be a lawful, custodial arrest, and second, the search mustbe substantially contemporaneous with the arrest. No further justificationbeyond the probable cause needed to arrest is necessary. The officer neednot have probable cause to believe there is evidence of a crime on the personof the arrestee or within the arrestee’s wingspan in order to search thearrestee or his wingspan. 15A. The Court Establishes a Bright-Line RuleThe leading cases on the search incident to arrest doctrine “were handed downduring a period in which the Supreme Court typically declared there was a ‘warrantrequirement,’ i.e., that warrantless searches are unreasonable in the absenceof a compelling justification for permitting the police to act without prior judicialauthorization.” 16 In 1969, the Supreme Court decided Chimel v. California, 17“the benchmark search-incident-to-lawful-arrest case.” 18 In Chimel, police officersarmed with an arrest warrant for burglary lawfully arrested Chimel in hishome. Pursuant to that arrest, the officers searched all the rooms in the threebedroomhouse, “including the attic, the garage, and a small workshop.” 19 Indeclaring the search unconstitutional, the Court referenced its landmark decisionin Terry v. Ohio, 20 noting that the scope of any exception to the warrant requirementmust be limited by the rationale for the exception:12 See Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone froma Search Incident to Arrest?, 96 IOWA L. REV. 1125, 1131 (2011) [hereinafter Gershowitz, PasswordProtected].13 Arizona v. Gant, 556 U.S. 332, 338 (2009).14 In Gant, the Court limited searches of vehicles incident to an occupant’s arrest to situationswhere the arrestee was “within reaching distance of the passenger compartment at the time of thesearch or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 351.15 Lee, Package Bombs, supra note 9, at 1428-29 (footnotes omitted). If the arrest was unlawful, R“the incidental warrantless search cannot be justified on the basis of this warrant exception.” 1JOSHUA DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL PROCEDURE: INVESTIGA-TIONS 189 (5th ed. 2010).16 DRESSLER & MICHAELS, supra note 15, at 185. R17 395 U.S. 752 (1969).18 DRESSLER & MICHAELS, supra note 15, at 194; see also James J. Tomkovicz, Divining and RDesigning the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, andInfidelity, 2007 U. ILL. L. REV. 1417, 1427 (2007); Arizona v. Gant, 556 U.S. 332, 350 (2009) (notingthat Chimel “established the present boundaries of the search-incident-to-arrest exception”).19 Chimel, 395 U.S. at 794.20 392 U.S. 1 (1968).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 5 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 93When an arrest is made, it is reasonable for the arresting officer to searchthe person arrested in order to remove any weapons that the latter mightseek to use in order to resist arrest or effect his escape. Otherwise, the officer’ssafety might well be endangered, and the arrest itself frustrated. Inaddition, it is entirely reasonable for the arresting officer to search for andseize any evidence on the arrestee’s person in order to prevent its concealmentor destruction. And the area into which an arrestee might reach inorder to grab a weapon or evidentiary items must, of course, be governedby a like rule. A gun on a table or in a drawer in front of one who is arrestedcan be as dangerous to the arresting officer as one concealed in theclothing of the person arrested. There is ample justification, therefore, for asearch of the arrestee’s person and the area “within his immediate control”—construingthat phrase to mean the area from within which he mightgain possession of a weapon or destructible evidence. 21The search in Chimel was unconstitutional because it “went far beyond the petitioner’sperson and the area from within which he might have obtained either aweapon or something that could have been used as evidence against him.” 22Thus, the search exceeded the constitutional justification for the exception. 23A few years later, the Supreme Court decided United States v. Robinson, 24which involved the search of the arrestee himself, not the area around him. Theimportance of the majority’s reasoning in Robinson, Professor James Tomkoviczhas written, is that “it supplements and seems to qualify the reasoning ofChimel.” 25 While not rejecting the twin rationales underlying the search incidentto arrest doctrine, the Court “restrict[ed] the analytical utility of the Chimel justificationsby rejecting the notion that the reasonableness of searching an arrestee’sperson depends at all on a determination of whether there was any danger of aweapon or destructible evidence in the particular case.” 26Robinson was arrested for operating a motor vehicle with a revoked licenseand was searched incident to that arrest. 27 During the search, the arresting officersearched through Robinson’s pockets, pulling out a crumpled cigarette package.Unsure what was in the package, the officer opened it and discovered capsules ofheroin. The Court upheld the search, noting that it was of “no moment that [the21 Chimel, 395 U.S. at 762-63.22 Id. at 768.23 Id.24 414 U.S. 218 (1973).25 Tomkovicz, supra note 18, at 1432.26 Id. See also Gershowitz, Password Protected, supra note 12, at 1133 (noting that the Robin- Rson Court “clarified that the search-incident-to-arrest doctrine is automatic, and that courts shouldnot conduct a case-by-case inquiry to determine whether police were actually suspicious or whetherthe search was truly necessary to protect the officer or prevent the destruction of evidence”).27 Robinson, 414 U.S. at 221-22.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 6 11-JAN-13 11:2694 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWarresting officer] did not indicate any subjective fear of the respondent or that hedid not himself suspect that respondent was armed” 28 because the custodial arrestitself “gives rise to the authority to search.” 29 Because the officer came uponthe cigarette package during the course of a lawful search, “he was entitled toinspect it; and when his inspection revealed the heroin capsules, he was entitledto seize them as ‘fruits, instrumentalities, or contraband’ probative of criminalconduct.” 30 The Court stated that the authority to search “does not depend onwhat a court may later decide was the probability in a particular arrest situationthat weapons or evidence would in fact be found upon the person of thesuspect.” 31In Robinson, therefore, the Supreme Court established a bright-line rule thatan officer may always conduct a search incident to a lawful arrest, regardless ofthe offense for which the person was arrested. 32 Such a search, the Court held, is“reasonable” under the Fourth Amendment:A custodial arrest of a suspect based on probable cause is a reasonable intrusionunder the Fourth Amendment; that intrusion being lawful, a searchincident to the arrest requires no additional justification. It is the fact of thelawful arrest which establishes the authority to search, and we hold that inthe case of a lawful custodial arrest a full search of the person is not only anexception to the warrant requirement of the Fourth Amendment, but is alsoa ‘reasonable’ search under that Amendment. 33Robinson also established that during a search incident to arrest, officers “canopen and search through all items on an arrestee’s person, even if they are in aclosed container, and even if the officers have no suspicion that the contents ofthe container are illegal.” 3428 Id. at 236.29 Id.30 Id. See also DRESSLER & MICHAELS, supra note 15, at 187 (noting that “the officer need nothave probable cause to conduct the ordinary [incident to lawful arrest] search, but must have probablecause to seize the evidence found in the search”).31 Robinson, 414 U.S. at 235. See also 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREA-TISE ON THE FOURTH AMENDMENT, § 7.1(c), 125 (Supp. 2011) (4th ed. 2004) [hereinafter LAFAVE,SEARCH AND SEIZURE] (writing that the automatic search rule of Robinson “makes sense because thealternative is to impose upon the police the burden of making case-by-case judgments, risking harm tothemselves and loss of evidence if they err, about the likelihood of the search being fruitful”).32 See LAFAVE, SEARCH AND SEIZURE, supra note 31, at § 5.2(b) (noting that the Robinson Rmajority “stated the ‘general authority’ in absolute terms: once there is a ‘custodial arrest’ a ‘fullsearch of the person’ requires ‘no additional justification’”).33 Robinson, 414 U.S. at 235.34 Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27, 33(2008) [hereinafter Gershowitz, The iPhone].

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 7 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 95In 1981, the Supreme Court extended the bright-line rule of Chimel andRobinson to the passenger compartments of vehicles in New York v. Belton, 35 acase involving a passenger in a car lawfully stopped for a traffic violation. Afterrequiring the four occupants of the vehicle to disembark, and arresting them forpossession of marijuana, the state trooper returned to the vehicle and searched it.During the search, the trooper found Belton’s jacket, unzipped one of its pockets,and found cocaine. 36 The Supreme Court upheld the search, finding that when anoccupant of a vehicle has been lawfully arrested, the police may search the personand the passenger compartment of the vehicle, including any containers foundwithin the passenger compartment, contemporaneously with the arrest. 37 TheCourt reasoned that containers within the reach of an arrestee are subject tosearch incident to arrest:Such a container may, of course, be searched whether it is open or closed,since the justification for the search is not that the arrestee has no privacyinterest in the container, but that the lawful custodial arrest justifies theinfringement of any privacy interest the arrestee may have. Thus, while theCourt in Chimel held that the police could not search all the drawers in anarrestee’s house simply because the police had arrested him at home, theCourt noted that drawers within an arrestee’s reach could be searched becauseof the danger their contents might pose to the police. 38The Court defined a “container” as “any object capable of holding another object.It thus includes closed or open glove compartments, consoles, or other receptacleslocated anywhere within the passenger compartment, as well asluggage, boxes, bags, clothing, and the like.” 39 The Court also noted that thesearch incident to arrest doctrine authorized the search of containers even though“they could hold neither a weapon nor evidence of the criminal conduct forwhich the suspect was arrested.” 40Twenty-eight years later, in Arizona v. Gant, 41 the Supreme Court determinedthat courts had read Belton’s authority too broadly and that many searches ofvehicle passenger compartments were not justified by the rationales of Chimel. 42In Gant, police lawfully arrested Gant for driving with a suspended license. While35 453 U.S. 454 (1981).36 Id. at 456.37 Id. at 460-61.38 Id. at 461.39 Id. at 461 n.4.40 Id. at 461. See also Gershowitz, The iPhone, supra note 34, at 36 (noting that the Court has Rmade “clear that, incident to a lawful arrest, officers can open containers located on a person or intheir immediate grabbing space without having any independent probable cause to search thosecontainers”).41 556 U.S. 332 (2009).42 Id. at 338.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 8 11-JAN-13 11:2696 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWGant was handcuffed and sitting in the back of the police car, officers searchedhis vehicle and found a jacket that contained cocaine. 43 The Court held that:Police may search a vehicle incident to a recent occupant’s arrest only ifthe arrestee is within reaching distance of the passenger compartment at thetime of the search or it is reasonable to believe the vehicle contains evidenceof the offense of arrest. When these justifications are absent, a searchof an arrestee’s vehicle will be unreasonable unless police obtain a warrantor show that another exception to the warrant requirement applies. 44Thus “[w]hile Gant changes what is required to justify the search of a vehicleincident to arrest of an occupant or recent occupant of the vehicle, it does notchange the scope of what may be searched.” 45 Many scholars, however, have suggestedthat Gant signals a willingness on the part of the Court to reconsider thesearch incident to lawful arrest doctrine as set forth in Chimel and Robinson. 46Others have commented that the “Gant decision is a clear indication that theSupreme Court does not intend to radically change or abandon its traditionalapproach” 47 as set forth in Chimel.43 Id. at 335.44 Id. at 351.45 Lee, Package Bombs, supra note 9, at 1436; see also Joshua A. Engel, Doctrinal Collapse: RSmart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, 41 U.MEM. L. REV. 233, 246 (2010); United States v. Gomez, 807 F. Supp.2d 1134, 1143 (S.D. Fla. 2011)(noting that while Gant signaled a “retraction” of Belton, “it is still well established that any objectsfound on an arrestee’s person, on his clothing, on any area within his immediate control, may besearched by law enforcement, with or without any reason to suspect that the person is armed orcarrying contraband”).46 See e.g., Barbara E. Armacost, Arizona v. Gant: Does It Matter?, 2009 SUP. CT. REV. 275, 311(2009); Gershowitz, Password Protected, supra note 12, at 1135 (noting that it is not clear whether the RCourt will expand Gant to “restrict nonvehicle searches incident to arrest, such as the cigarette packin Robinson”); George M. Dery III, A Case of Doubtful Certainty: The Court Relapses Into SearchIncident to Arrest Confusion in Arizona v. Gant, 44 IND. L. REV. 395, 425 (2011) (suggesting thatGant’s “reasonable to believe” test might limit all searches incident to lawful arrests because Courtdid not distinguish between searches of people and searches of passenger compartments; the “force ofGant’s logic could, at worst, undermine officers’ ability to make quick ad hoc judgments as necessaryin arrest situations and, at least, sow confusion”); Angad Singh, Comment, Stepping Out of the Vehicle:The Potential of Arizona v. Gant to End Automatic Searches Incident to Arrest Beyond the VehicularContext, 59 AM. U. L. REV. 1759, 1782 (2010) (arguing that “an automatic search of a personalcontainer incident to arrest is unconstitutional in light of Gant”).47 Engel, supra note 45, at 292-93; see also Robert G. Rose, Note, The “Search-Incident-To-Arrest [But Prior-To-Securement]” Doctrine: An Outline of the Past, Present, and Future, 23 REGENTU. L. REV. 425, 445 (2011) (arguing that applying Gant’s “time-of-search” rule would “eviscerate thesearch incident to lawful arrest doctrine as it applies outside the vehicle context); cf. Smallwood v.State, 61 So.3d 448, 452 (Fla. Dist. Ct. App. 2011) (finding Gant inapplicable to instant case “wherethe item that was searched was found on appellant’s immediate person”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 9 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 97B. Scope of the Bright-Line Rule: Temporal and Spatial ConcernsThe Supreme Court has emphasized that search incident to arrest is a brightlinedoctrine, one that provides certainty for police officers and courts. 48 In thenon-vehicle context, the Court has held that, to be justified, such a search must becontemporaneous with an arrest and must be confined to the arrestee, any itemsheld by the arrestee, and the area immediately surrounding the arrestee. 49 Asearch of the arrestee’s person is not usually at issue, unless law enforcementofficers engage in a search that intruded into body cavities, for example. 50 Whilethe authority to search incident to arrest is clear, courts in some instances stillmust perform a case-by-case analysis of whether law enforcement exceeded thescope of the exception; for example, whether a search was within an arrestee’sarea of “immediate control” requires a court to determine what that area was. 51The Court has provided some guidance on both the temporal and spatial limits ofthe search incident to arrest doctrine through two cases, United States v. Edwards52 and United States v. Chadwick. 53 These two cases illustrate that where anitem is located impacts how long after an arrest a search can still be justified asincident to that arrest. 54In United States v. Edwards, the Court held that an item associated with theperson, such as an arrestee’s clothing, can be searched within a reasonable timeafter arrest even if the search occurs at a location different than the arrest. 55Edwards was lawfully arrested for attempted breaking and entering, and wasplaced in a jail cell overnight. Because it was at night, the officers did not examinehis clothing until the next morning, whereupon they discovered paint chipsmatching the samples from the window that had been used for the break-in. 56The Supreme Court held that because Edwards’ clothing could have beensearched at the time of his arrest, and indeed had been seized upon his arrest, the48 See United States v. Thornton, 541 U.S. 615, 623 (2004) (noting the importance of a “clearrule, readily understood by police officers”); Dunaway v. New York, 442 U.S. 200, 213-14, (1979)(noting that “single, familiar standard is essential to guide police officers, who have only limited timeand expertise to reflect on and balance the social and individual interests involved in the specificcircumstances they confront”); see also Gershowitz, Password Protected, supra note 12, at 1145 (not-Ring that Court has “long endorsed bright-line rules” in its search-incident-to-arrest jurisprudence).49 Chimel v. California, 395 U.S. 752, 762-63 (1969).50 See Amaechi v. West, 237 F.3d 356, 362-63 (4th Cir. 2001) (finding that search incident toarrest was unreasonable because officer touched and penetrated arrestee’s genitalia and buttocks).51 See DRESSLER & MICHAELS, supra note 15, at 192 (noting that there is no bright-line rule for Rthe scope of the “grabbing area”).52 415 U.S. 800 (1974).53 433 U.S. 1 (1977), abrogated by California v. Acevedo, 500 U.S. 565 (1991).54 See United States v. Gomez, 807 F. Supp.2d 1134, 1149 (S.D. Fla. 2011) (noting that thetemporal and spatial requirements of the doctrine limit the scope of any search “as a practicalmatter”).55 Edwards, 415 U.S. at 803.56 Id. at 802.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 10 11-JAN-13 11:2698 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWpolice could lawfully search the clothing some hours later: “it is difficult to perceivewhat is unreasonable about the police’s examining and holding as evidencethose personal effects of the accused that they already have in their lawful custodyas the result of a lawful arrest.” 57 The Court did note that while the warrantrequirement might be applicable to a post-arrest seizure of an arrestee’s effects, asearch of clothing and possessions within a reasonable time of arrest was lawful. 58In contrast, in United States v. Chadwick, 59 the Supreme Court found that asearch of the arrestee’s footlocker more than an hour after arrest was not contemporaneouswith the arrest and thus could not be justified under the searchincident to arrest doctrine. 60 In Chadwick, FBI agents seized defendant’s 200-pound footlocker incident to his lawful arrest. About an hour and a half later,after the footlocker had been reduced to the agents’ “exclusive control,” 61 theFBI opened it without a warrant and discovered marijuana. The Court distinguishedsearches “of the person” in Edwards and Robinson from searches “ofpossessions within an arrestee’s immediate control [which] cannot be justified byany reduced expectations of privacy caused by the arrest.” 62 In invalidating thesearch, the Court stated:[W]arrantless searches of luggage or other property seized at the time of anarrest cannot be justified as incident to that arrest either if the “search isremote in time or place from the arrest”. . . or no exigency exists. Once lawenforcement officers have reduced luggage or other personal property notimmediately associated with the person of the arrestee to their exclusivecontrol, and there is no longer any danger that the arrestee might gain accessto the property to seize a weapon or destroy evidence, a search of thatproperty is no longer an incident of the arrest. 63Edwards and Chadwick also illustrate how the spatial circumstances of a particularcase impact the temporal considerations. There is no bright-line rule as tothe scope of the area subject to search: “[i]n principle, the scope of the grabbingarea depends on the circumstances of the individual case.” 64 In Edwards, theCourt’s holding rested upon the fact that the officers could have searched Edwards’clothing, his “personal effects,” 65 upon arrest. In Chadwick, the Court dis-57 Id. at 806.58 Id. at 808-09.59 433 U.S. 1 (1977).60 Id. at 15-16.61 Id. at 15.62 Id. at 16 n.10.63 Id. at 15.64 DRESSLER & MICHAELS, supra note 15, at 192 (listing factors that may properly affect the Rscope of the arrestee’s “grabbing area”).65 U.S. v. Edwards, 415 U.S. 800, 806 (1974). See also DRESSLER & MICHAELS, supra note 15, Rat 190-91 (noting that cases like Edwards are “rare” because when an arrestee is incarcerated, “the

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 11 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 99tinguished items “not immediately associated with the person of the arrestee,” 66and noted that once police have reduced those items “to their exclusive control,”67 a search could not be justified as incident to arrest. 68 The Court’s decisionsin these two cases:[T]hus offer two different rules for the temporal scope of searches incidentto arrest. If the search is of items associated with the person, police havegreater flexibility and can conduct searches many hours after arrest. If, however,the police search possessions that are not associated with the personand are merely nearby, then there is a more rigid time limitation. 69Although the Court has “offered no additional guidance on this distinction,” 70lower courts have found that wallets, 71 purses, 72 address books, 73 and briefcasesfound on or near the arrestee 74 fall within the Edwards line of cases because“they more closely resemble items on the person rather than nearby possessions”;75 thus, incident to and contemporaneously with arrest, officers may openand search these items, including within a reasonable time later at the stationhouse. 76 In contrast, where courts have determined that an item is not within anright to search his person incident to the arrest is followed quickly by the right of the police or jailauthorities to conduct an arrest inventory that is likely to be at least as thorough as the search incidentto arrest”) (internal footnote omitted).66 United States v. Chadwick, 433 U.S. 1, 15 (1977).67 Id.68 Id.69 Gershowitz, Password Protected, supra note 12, at 1156 (describing how Edwards and Chad- Rwick offer two different rules for the temporal scope of searches incident to arrest).70 Id.71 See, e.g., United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980) (finding that wallet seizedfrom arrestee’s pocket could be lawfully searched incident to arrest as it was an element of arrestee’sclothing, citing to Robinson and Edwards); United States v. Castro, 596 F.2d 674, 677 (5th Cir. 1979)(finding that pursuant to Edwards, search of defendant’s wallet back at station was still incident toarrest because the wallet was an “immediate personal effect[ ]”); see also Engel, supra note 45, at 246R(noting that lower courts have interpreted Robinson and Belton “to permit police to search personalobjects—containers—found on a suspect incident to a lawful arrest”); Gershowitz, The iPhone, supranote 34, at 35-36 (noting that lower courts have “taken a broad approach and upheld searches ofRnumerous small containers incident to arrest, such as wallets, envelopes, and aspirin bottles”) (internalfootnotes omitted).72 See United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir. 1978) (holding that search ofarrestee’s purse was justified under search incident to arrest doctrine).73 See United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (finding that a search of anaddress book in the arrestee’s wallet was reasonable under the search incident to arrest exception).74 See United States v. Johnson, 846 F.2d 279, 283-84 (5th Cir. 1988) (upholding search of briefcaseincident to arrest because briefcase was within arrestee’s control).75 Gershowitz, Password Protected, supra note 12, at 1157. R76 See id. (citing cases). Professor Gershowitz has noted that “the fact that wallets, purses, andother items on the arrestee are almost universally considered part of the person, and are thus searchableincident to arrest hours later at the station house, strongly suggests that cell phones stored on anarrestee should fall into this category as well.” Id. at 1158.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 12 11-JAN-13 11:26100 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWarrestee’s immediate control, police must obtain a warrant to search the itemonce it has come within the exclusive control of the police.II.CELL PHONES, SMARTPHONES, AND THE SEARCH INCIDENT TOARREST DOCTRINEAt a basic level, cell phones and smartphones are handheld wireless devicesthat function as phones. 77 Smartphones are somewhat more advanced, althoughthere is no one specific definition for a smartphone. 78 Smartphones, and someadvanced cell phones, have also been compared to computers:Like computers, smart phones allow a user to access the Internet, sharephotographs, view movies, and use email among other functions. Somesmart phones add to this list the ability to record and replay live video, acapability that many computers lack. While they still serve as phones, telephoniccapability alone no longer limits an electronic device’s identity tothat of a phone alone. 79These advanced phones also have address books, clocks, calendars, calculators,games, and voice messaging features; “[i]n short, for those on the go, the[smartphone] packages multiple applications into a single device small enough tofit into a back pocket.” 80 One commentator has noted: “[e]ach day seems to bringphones with newer features and greater storage capacity; each day also seems totake these devices further away from their single-function, fixed-line ancestors.”81 Some smartphones can now even be used as “mobile wallets” with creditcard and checkbook functions. 82For law enforcement, these devices can be “attractive targets for criminal investigators,”83 providing a wealth of evidence such as lists of recent incoming and77 See Orso, supra note 2, at 213. R78 Id. (noting that no agreement seems to exist “regarding what exactly qualifies as a so-calledsmart phone, and what does not”).79 Id.80 Gershowitz, The iPhone, supra note 34, at 29; see also Daniel Zamani, Note, There’s an RAmendment for That: A Comprehensive Application of Fourth Amendment Jurisprudence to SmartPhones, 38 HASTINGS CONST. L. Q. 169, 172 (2010) (discussing differences between smartphones andcell phones and suggesting an “accurate analogy for a smart phone’s capacity might be Mary Poppins’carpetbag or Hermione’s handbag from Harry Potter, both of near infinite proportions”).81 Bryan Andrew Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches, 42GA. L. REV. 1165, 1168 (2008).82 Deirdre van Dyk, The End of Cash, TIME, Jan. 9, 2012, at 48-49.83 Lily R. Robinton, Courting Chaos: Conflicting Guidance From Courts Highlights the Needfor Clearer Rules to Govern the Search and Seizure of Digital Evidence, 12 YALE J.L. & TECH. 311,315 (2010) (noting that “[c]rooks and innocents alike store information relating to every facet of theirlives on digital devices, making them attractive targets for criminal investigators”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 13 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 101outgoing calls, text messages, and possibly incriminating photographs. 84 An officersearching a cell phone can at least initially do so fairly easily, by “just‘thumbing through’ the cell phone.” 85 As Professor Gershowitz has written,searches of pagers and early generation cell phones “do not require in-depthsearching to obtain evidence. Police need to push only a limited number of buttonsin order to reach pager numbers and only a few additional buttons to retrievetext messages.” 86For Fourth Amendment purposes, cell phones and smartphones presentunique issues. As one court has noted:Given their unique nature as multifunctional tools, cell phones defy easycategorization. On one hand, they contain digital address books very muchakin to traditional address books carried on the person, which are entitledto a lower expectation of privacy in a search incident to an arrest. On theother hand, they have the ability to transmit large amounts of data in variousforms, likening them to laptop computers, which are entitled to a higherexpectation of privacy.But cell phones are neither address books nor laptop computers. Theyare more intricate and multifunctional than traditional address books, yetthey are still, in essence, phones, and thus they are distinguishable fromlaptop computers. 87Although the United States Supreme Court has yet to address the constitutionalityof a warrantless cell phone searches, 88 lower courts have had many occasionsto do so. 89 With the rapid growth in the smartphone and mobile devices mar-84 See Ashley B. Snyder, Note, The Fourth Amendment and Warrantless Cell Phone Searches:When is Your Cell Phone Protected?, 46 WAKE FOREST L. REV. 155, 163 (2011); Stillwagon, supranote 81, at 1173 (noting that criminals have not missed the cell phone revolution); Gershowitz, Pass-Rword Protected, supra note 12, at 1146 (noting that “cell phones are recognized tools of the drug tradeRand drug dealers regularly use text messages to communicate”); cf. United States v. Aguirre, 664 F.3d606, 614-15 (5th Cir. 2011) (noting agent’s testimony that cell phones are “‘highly significant in thatthey record the transactions of—in some cases the buying and selling of drugs’”).85 Snyder, supra note 84, at 163. R86 Gershowitz, The iPhone, supra note 34, at 41. R87 State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009); see also Zamani, supra note 80, at 197(noting that smartphones, by virtue of their versatility, are distinct from pagers and cell phones and,likewise, that they are distinct from computers due to their mobility and “peculiar social niche”).88 See Engel, supra note 45, at 237 (noting that the Supreme Court has not directly considered Rwhether “a search incident to arrest may include a search of a cell phone’s contents and, if it does, thethoroughness of such a search”); see also Newhard v. Borders, 649 F. Supp. 2d 440, 448 (W.D. Va.2009) (noting that it is an “open question” whether the contents of a cell phone can be searchedwithout a warrant incident to arrest given “the lack of a clear rule from the Supreme Court or otherlower courts regarding the permissible scope of a search of a cell phone incident to arrest”).89 See Byron Kish, Cellphone Searches: Works Like a Computer, Protected Like a Pager?, 60CATH. U. L. REV. 445, 461 (2011).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 14 11-JAN-13 11:26102 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWket, 90 it is likely that courts will soon have to consider whether warrantlesssearches of smartphones are constitutional. Indeed, as set forth below, a fewcourts have already addressed this issue. Because many of the cell phones on themarket today also perform some of these smartphone functions, 91 it is instructiveto consider how courts have addressed warrantless searches of cell phones in determiningwhether a different approach is appropriate for smartphones. 92 Casesinvolving pagers searched incident to arrest also provide some guidance.As an initial matter, lower courts have “regularly held that a person has areasonable expectation of privacy in the contents of his cellular phone.” 93 Thus,in the absence of an applicable exception to the warrant requirement, law enforcementmust obtain a warrant to search a cell phone. 94 While courts have consideredsearches of cell phones under several different exceptions to the warrantrequirement, courts have decided the “bulk of warrantless cell-phone searches90 See Ben Bajarin, The Connected Human: How the World is About to Get Even Smaller, TIME,Feb. 21, 2012, available at http://techland.time.com/2012/02/21/the-connected-human-how-the-worldis-about-to-get-even-smaller/.91 See Jana L. Knott, Note, Is there an App for That? Reexamining the Doctrine of Search Incidentto Lawful Arrest in the Context of Cell Phone, 35 OKLA. CITY U. L. REV. 445, 455 (2010) (notingthat even those cell phones not considered “smartphones” are “capable of storing massive amounts ofinformation and can be equipped with an address book, a call log, text messaging capabilities, a camera,e-mail, and Internet”).92 See Orso, supra note 2, at 214 (asking whether “the potential for storing seemingly endless Ramounts of the most private information” places smartphones in a different Fourth Amendment categorythan cell phones); Gershowitz, The iPhone, supra note 34, at 45 (noting that although the “differ-Rence between the data found on a cell phone and an iPhone is dramatic . . . at present, the FourthAmendment and its search incident to arrest doctrine make no distinction”); cf. Gershowitz, PasswordProtected, supra note 12, at 1144 (noting that “although the vast majority of cases have involvedRearly-generation cell phones, rather than smart phones, the trend of the law strongly indicates thatcourts will reach the same results when cases involving iPhones, Blackberries, and other advanced cellphones reach the courts”).93 Orso, supra note 2, at 191; see also Engel, supra note 45, at 238 (noting that although the RSupreme Court has been “reluctant to determine the exact contours of the reasonable expectation ofprivacy in the face of new technology. . . . nothing in [City of Ontario v. Quon, 130 S.Ct. 2619 (2010)]suggests that the Court would look unfavorably on the suggestion that there is both a subjective andreasonable expectation of privacy in the contents of other sophisticated electronic devices, such assmart cell phones”); Snyder, supra note 84, at 161-62 (noting that most courts have found that a cellRphone user has a reasonable expectation of privacy in contents of a cell phone); Patrick J. Warfield,Putting a Square Peg in a Round Hole: The Search-Incident-to-Arrest Exception and Cellular Phones,34 AM. J. TRIAL ADVOC. 165, 178 (2010) (noting that “numerous courts have concluded, or at leastimplied, that a person has a reasonable expectation of privacy in the contents of his cell phone”);United States v. Gomez, 807 F. Supp.2d 1134, at 1140-41 (S.D. Fla. 2011) (noting that courts havefound that an individual has a reasonable expectation of privacy in call logs, text messages, and otheroperational functions of a cell phone). Cf. United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal.1993) (finding that defendant had a reasonable expectation of privacy in a borrowed pager found onhis person).94 See, e.g., Orso, supra note 2, at 191. R

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 15 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 103under the search-incident-to-arrest doctrine.” 95 In light of that, this article willfocus only on the search incident to arrest exception.A. Searches of Other Electronic Devices Incident to ArrestAlthough cell phones and smartphones have outpaced pager technology, atone time pagers were quite popular. 96 Pagers were small devices “capable of receivingtransmitted radio text messages,” 97 and stored only phone numbers andshort messages. 98 The lower courts that have had occasion to consider whetherwarrantless searches of pagers incident to arrest are constitutional have “universallyupheld the search incident to arrest of such devices.” 99 Federal districtcourts and courts of appeal have classified pagers as containers that may besearched incident to lawful arrest. 100 For example, in United States v. Chan, 101 thecourt, rejecting an argument that a search warrant was required, found that apager on the arrestee was a container that could be searched incident to arrest. 102In United States v. Lynch, 103 the court determined that a pager was a containersimilar to an address book or wallet, and thus could be searched incident to arrest;the pager was also considered part of the defendant’s person because it hadbeen found on his hip. 104 These courts, along with other courts upholding95 Gershowitz, Password Protected, supra note 12, at 1137; see also Orso, supra note 2, at 185 R(noting that search incident to arrest and exigent circumstances exceptions are the “most commonly”argued); Mark Mayakis, Comment, Cell Phone – A “Weapon” of Mass Discretion, 33 CAMPBELL L.REV. 151, 153 (2010) (noting that the search incident to arrest exception “is the most controversialexception with regard to searches of the content stored within cell phones because these types ofsearches are most commonly justified by this exception, and there is an increasing division amongcourts in its application to the warrantless searches of cell phones”).96 See Stillwagon, supra note 81, at 1171; see also Katharine M. O’Connor, Note, :o OMG They RSearched My Txts: Unraveling the Search and Seizure of Text Messages, 2010 U. ILL. L. REV. 685(2010) (noting before widespread use of cell phones, pagers were used to send text messages).97 Stillwagon, supra note 81, at 1171. R98 See Gershowitz, Password Protected, supra note 12, at 1135. R99 Id.100 See Engel, supra note 45, at 247; NATHAN JUDISH ET AL., SEARCHING AND SEIZING COM- RPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATION 32 (3rd ed. 2009),available at http://www.cybercrime.gov/ssmanual/ssmanual2009.pdf. (listing cases where courts haveupheld searches of pagers incident to arrest).101 830 F. Supp. 531 (N.D. Cal. 1993).102 Id. at 536 (holding that the “general requirement for a warrant prior to the search of acontainer does not apply when the container is seized incident to arrest”). In Chan, the defendanthad argued that the pager was like the footlocker in Chadwick and, therefore, the police needed awarrant to search it. Id. at 532. The court rejected this argument. Id. at 536. See also United States v.Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding search of pager found on arrestee as lawful incidentto arrest).103 908 F. Supp. 284 (D.V.I. 1995).104 Id. at 289.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 16 11-JAN-13 11:26104 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWsearches of pagers incident to arrest, 105 did not base their holdings on a loweredexpectation of privacy in pagers, but ratherThe key to understanding these decisions is recognizing the courts’ implicitassumption that the privacy interest in electronic data held in pagersand similar electronic devices is the same as the privacy interest in nonelectroniccontent such as address books. . . . [and the] arrestee’s privacyinterest is, in the view of these courts, outweighed by the law enforcementinterests described in Chimel (officer safety and the preservation ofevidence). 106Although some courts noted that due to the limited memory capacity of pagers,evidence could be destroyed, 107 other courts did not rely on the twin rationalesfor the exception—officer safety and destruction of evidence—in upholding thesearches incident to arrest. 108There appear to be few decisions considering the search of a laptop computerincident to arrest. 109 The reason for this perhaps rests on the fact that “most lawenforcement officers prefer to seize computers and then obtain a warrant for aforensic analysis.” 110B. Searches of Cell Phones and Smartphones Incident to ArrestIn determining whether searches of cell phones and smartphones incident toarrest are lawful, courts “have been forced to confront whether the search incidentto arrest doctrine—designed with a world of tangible evidence in mind—should apply to data digitally contained in electronic devices.” 111 Most courts,105 See Engel, supra note 45, at 248 n.86 (citing cases upholding searches of pagers incident to Rarrest).106 Id. at 248.107 See United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding search of pagerincident to arrest and noting preservation of evidence concerns with pagers).108 See United States v. Chan, 830 F. Supp. 531, 536 (N.D. Cal. 1993) (approving search eventhough “there was no danger that Chan would in any way produce a weapon from the pager, andprobably no threat that he would access the pager to destroy evidence”).109 See Engel, supra note 45, at 252 n.107; see also Orso, supra note 2, at 215 (noting the “pau- Rcity of precedent regarding the search of laptops or other computers incident to arrest”).110 Engel, supra note 45, at 252 n.107; see also Orso, supra note 2, at 215 (suggesting that the Ranswer to why there are so few cases involving searches of laptops and computers incident to arrestmay be “that even police do not believe a search of a computer incident to arrest is permissible,seeking instead a warrant for the search of computers”).111 Gershowitz, The iPhone, supra note 34, at 36; see also Snyder, supra note 84, at 165 (noting Rthat “when courts assess the exception’s application to warrantless cell phone searches, the primaryissue is whether the scope of the search incident to arrest exception should extend to include thecontents of the arrestee’s cell phone as well.”); Mayakis, supra note 95, at 164 (noting that while theRdoctrine has worked “reasonably well since its creation because it is relatively easy for law enforcementofficials to understand and apply to searches of traditional closed containers, which have beenfound to be within its permissible scope,” the issue is whether modern cell phones “fall within the

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 17 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 105both federal 112 and state, 113 that have considered searches of cell phones incidentto arrest have treated these devices as containers, 114 drawing analogies betweencell phones and address books, 115 or pagers, 116 for example. And, most courtshave found that the phones can be searched under the exception, 117 provided theother elements—lawful arrest and contemporaneous search—are also present:Perhaps the reason for the lack of contrary authority is that searching aconventional cell phone or pager incident to arrest is relatively easy tosquare with precedent that permits police to search tangible containersfound on an arrestee. A cell phone’s memory of incoming and outgoingcalls, as well as its text messages, can easily be analogized to an addressSupreme Court’s broad interpretation of closed containers . . . in light of the highly private content itmight contain”).112 See Orso, supra note 2, at 196-97 (“[m]ore often than not, federal courts have validated Rwarrantless searches of cellular phones, usually relying on one of two exceptions to the warrant requirement—exigentcircumstances and search incident to arrest”).113 See Gracie v. State, 92 So.3d 806, 812 (Ala. Crim. App. 2011) (agreeing “with the majorityof jurisdictions surveyed that a warrantless search of a defendant’s cellular phone following his arrestdoes not violate Fourth Amendment principles;” in instant case, cell phone was “immediately associatedwith [defendant’s] person, and pursuant to the decision of the United States Supreme Court inRobinson, [the detective] was permitted to inspect [it]”).114 See Smallwood v. State, 61 So.3d 448, 459 (D. Ct. App. Fla. 2011) (recognizing that many ofthe state and federal courts that have addressed whether cell phones may be searched incident toarrest have found that it “is contingent upon whether or not a cell phone is a ‘container’ as contemplatedin Robinson and Belton”); United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009)(finding that cell phones were not distinguishable from other types of “personal containers found on adefendant’s person”); see also O’Connor, supra note 96, at 710 (noting that most courts have acceptedRthe container analogy with regard to cell phones). Matthew Orso has written that these devices arepieces of “physical property that must be manipulated before the information stored within is exposed.In a way, technology has ‘hidden’ the information stored inside it, such as photographs thatwould otherwise be printed on photo paper or text messages that otherwise might be written onpaper.” Orso, supra note 2, at 196-97.R115 See United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005)(comparing wallets and address books to cell phones “since they would contain similar information”and upholding search of cell phone incident to arrest).116 See United States v. McCray, No. CR408-231, 2009 WL 29607, at *3 (S.D. Ga. Jan 5, 2009)(citing cases where courts have treated electronic devices such as cell phones like pagers).117 Gershowitz, Password Protected, supra note 12, at 1143 (noting that even though issues are Rstill evolving, “most courts to address the constitutionality of searching cell phones incident to arresthave upheld the practice”). See, e.g., United States v. Gomez, 807 F. Supp.2d 1134, 1146 (S.D. Fla.2011) (noting that electronic storage devices like cell phones are analogous to “highly personal itemslike wallets or purses”); Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir. 2009) (finding that thepermissible scope of a search incident to arrest includes contents of cell phone on person); UnitedStates v. Grooms, No. 2:10-CR-87, 2011 WL 381036, at *1 (E.D. Tenn. Jan. 3, 2011) (agreeing withFourth, Fifth and Seventh Circuits that cell phones are containers); cf. Hawkins v. State, 704 S.E.2d886, 890 (Ga. App. 2010) (noting that most courts that have addressed the issue have concluded thatcell phones are “roughly analogous to an electronic ‘container’ that properly can be ‘opened’ andsearched for the data, much as a traditional ‘container’ can be opened to search for tangible objectswithin”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 18 11-JAN-13 11:26106 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWbook or letter in an envelope. Much as the traditional search incident toarrest cases permit police to open a wallet, take out a letter, and read itbefore the arrestee has an opportunity to destroy the evidence, it alsomakes sense to allow the police to review electronic call histories and textmessages in a cell phone. An arrestee familiar with the functions of his cellphone could just as easily delete test messages or call logs as he could tearup a letter or an incriminating list of addresses on a piece of paper. 118If a cell phone is a container, then law enforcement should be able to search itincident to arrest just as they could with any other container, 119 as long as theother elements of that exception are present: The “only significant restriction onthe search of cell phones incident to arrest is that the search must be conductedclose in time to the arrest—i.e., ‘contemporaneously’ with the arrest.” 120 Answeringthe “contemporaneously” question involves determining whether a cell phonein the particular case is more like an item immediately associated with a personwhich allows law enforcement reasonable time to search it, 121 or whether itshould be classified like the footlocker in Chadwick: Once the police have reducedit to their exclusive control, it may not be searched without a warrant. 122This is generally a factual determination based upon the evidence in a particularcase. 123 Moreover, as with cases involving pagers, some courts have dismissed the118 Gershowitz, The iPhone, supra note 34, at 39-40 (footnotes omitted). Professor Gershowitz Ralso notes that “[a]s a conceptual matter, there is no real difference between a crumpled up cigarettepackage, an early-generation cell phone, and an iPhone with much larger memory. Yet, this is causefor concern because no matter what theoretical similarities exist between an iPhone and a conventionalcell phone (or a cigarette package for that matter), the former stores tremendously more informationand in a very different way.” Id. at 40-41; see also Snyder, supra note 84, at 158 n.145R(suggesting that the “reluctance of some courts to hold that a search incident to arrest does not extendto a cell phone’s contents may be at least in part attributable to a deferential and broad reading ofSupreme Court precedent favoring bright-line rules in this context”).119 Gershowitz, The iPhone, supra note 34, at 44 (noting that the doctrine permits police to Rsearch the “contents of any container found on the arrestee, including electronic receptacles of digitalinformation”).120 Gershowitz, Password Protected, supra note 12, at 1128. Professor Gershowitz has written Rthat “if we think of an iPhone as a container—like a cigarette package or a closed box—police canopen and search the contents inside with no questions asked and no probable cause required, so longas they are doing so pursuant to a valid arrest.” Gershowitz, The iPhone, supra note 34, at 31.R121 See Gershowitz, Password Protected, supra note 12, at 1130 (noting that Supreme Court Rprecedent “provides that when police search for an item associated with the person of an arrestee,such as his clothing or wallet, they can take far longer to conduct the search and can comfortably doso at the station house, rather than at the scene of the arrest”).122 See id. at 1156; Snyder, supra note 84, at 170 (noting that “even if an item is classified as Rwithin the possession of an arrestee, the Chadwick limitation is relevant only if law enforcementdelays its search of the object”).123 See Gershowitz, Password Protected, supra note 12, at 1161 (noting that the categorization Rof whether a cell phone is an item associated with the arrestee or merely a nearby possession “dependson the specific facts of the case”); United States v. Gomez, 807 F. Supp. 2d 1134, 1148 (S.D. Fla.2011) (noting that when addressing the proper scope of a search incident to arrest, what is “conse-

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 19 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 107argument that because cell phones cannot harm officers or destroy evidence, thedoctrine does not apply. 124 Instead, most courts simply find that the cell phonefalls within the area properly searched without a warrant pursuant to arrest.A few courts have rejected the application of the search incident to arrest doctrinebased upon the particular facts of the case. For example, a few courts havedetermined that cell phones are not items associated with the arrestee, like thefootlocker in Chadwick, and thus cannot be searched without a warrant once theyhave been reduced to the exclusive control of the police. At least two courts havereasoned that cell phones are simply not containers and thus should not besearched at all without a warrant.1. Courts Applying the Search Incident to Arrest Doctrine to Cell Phonesand SmartphonesMost courts to consider whether a cell phone can be searched incident to arresthave upheld the searches. 125 Based upon the facts of the particular case,courts have found that cell phones are possessions associated with the person ofthe arrestee; thus, “law enforcement officers have flexibility in the time it takesquential is the location that the device was found incident to arrest and the time that the search wasconducted”).124 In United States v. Dennis, for example, the court upheld the search of the defendant’s cellphone incident to arrest even though the defendant claimed that it was impossible for him to havedestroyed any evidence due to the number of police officers on the scene. Criminal No. 07-008-DLB,2007 WL 3400500, at *8 (E.D. Ky. Nov. 13, 2007). The court dismissed this argument and stated thatthe validity of a search incident to arrest “is not whether the defendant has actual, present capacity todestroy evidence, but merely whether the evidence was within his immediate control near the time ofhis arrest.” Id. See also United States v. Gomez, 807 F. Supp. 2d 1134, 1146 (S.D. Fla. 2011) (upholdingsearch of cell phone incident to arrest, noting that “even though the search of [d]efendant’s cellphone may not have been justified by the agents’ safety or [d]efendant’s possible destruction of thecall log history, that necessity or exigency is beside the point” pursuant to the Chimel line of cases);United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008) (noting thatthere is no authority “for the proposition that a search incident to arrest must be supported by anylevel of suspicion that the search will uncover evidence”). In any event, an “arrestee familiar with thefunctions of his cell phone could just as easily as delete text messages or call logs as he could tear up aletter or an incriminating list of addresses on a piece of paper.” Gershowitz, The iPhone, supra note34, at 40. R125 See Gershowitz, Password Protected, supra note 12, at 1143 (noting that “most courts to Raddress the constitutionality of searching cell phones incident to arrest have upheld the practice”);Orso, supra note 2, at 223 (noting that “courts that have applied the search incident to arrest excep-Rtion have generally upheld cellular phone searches,” while a minority of courts applying the exception“has held that cellular phones are outside the ambit of the exception’s reach because of their capacityfor storing vast quantities of intimately personal data”). See, e.g., United States v. Fuentes, 368 Fed.Appx. 95, 99 (11th Cir. 2010) (finding that search of cell phone incident to arrest was lawful); UnitedStates v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (upholding search of cell phone incident toarrest); People v. Taylor, ——P.3d ——, 2012 WL 2045754, 21 (Colo. App. June 7, 2012) (upholdingsearch incident to arrest of call history in cell phone found in defendant’s clothes).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 20 11-JAN-13 11:26108 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthem to search the phones incident to arrest.” 126 Courts that fall into this campgenerally follow the Fifth Circuit’s reasoning in United States v. Finley, 127 which isperhaps the most cited case in this area.In Finley, the Fifth Circuit upheld the search through text messages and callrecords of a cell phone incident to lawful arrest where the cell phone had beenseized from the arrestee’s pocket. 128 Notably, in so holding, the court “did notrecognize any conceptual difference between searching physical containers fordrugs and searching electronic equipment for digital information.” 129 In light ofthis, the court held, the “permissible scope of a search incident to a lawful arrestextends to containers found on the arrestee’s person.” 130 The court, citing UnitedStates v. Edwards, found it of no moment that the search took place after thedefendant had been transported to a different location after his arrest. 131 Likewise,the court said, United States v. Chadwick was inapplicable: The defendant’scell phone “does not fit into the category of ‘property not immediately associatedwith [his] person’ because it was on his person at the time of his arrest.” 132While Finley involved a search of a more conventional cell phone, the court inUnited States v. Hill 133 applied the same rationale to the search of a smartphoneseized from an arrestee’s pants pocket incident to arrest. In Hill, defendant’s126 Gershowitz, Password Protected, supra note 12, at 1158; see also United States v. Grooms, RNo. 2:10-CR-87, 2011 WL 381036, at *2 (E.D. Tenn. Jan. 3, 2011) (upholding search of cell phoneincident to arrest and noting that “contemporaneous” does not have to mean “simultaneous” whenitem was found on arrestee).127 477 F.3d 250 (5th Cir. 2007). See also Orso, supra note 2, at 203 (a “majority of courts facing Rsimilar facts have agreed with Finley’s conclusion”).128 Finley, 477 F.3d at 260.129 Gershowitz, Password Protected, supra note 12, at 1139; see also United States v. Wurie, 612 RF. Supp. 2d 104, 110 (D. Mass. 2009) (upholding search incident to arrest of a cell phone, concludingthat there “is no principled basis for distinguishing a warrantless search of a cell phone from thesearch of other types of personal containers found on a defendant’s person”); United States v. Mercado-Nava,486 F. Supp. 2d 1271, 1277 (D. Kan. 2007) (noting that traditional search warrant exceptionsapply to searches of cell phones).130 Finley, 477 F.3d at 260. In Finley, defendant did concede that the cell phone was acontainer, but the court found that a warrant was not required because the search incident to arrestexception applied. Id. Other courts have held that the warrantless search of the contents of a cellphone was a permissible search incident to arrest. See, e.g., United States v. Fuentes, 368 Fed. Appx.95, 99 (11th Cir. 2010); United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009); People v. Diaz,244 P.3d 501, 511 (Cal. 2011); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008);Fawdry v. State, 70 So. 3d 626, 630 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61 So.3d 448 (Fla.Dist. Ct. App. 2011); Hawkins v. State, 704 S.E.2d 886, 892 (Ga. Ct. App. 2010).131 Finley, 477 F.3d at 260 n.7 (noting that although the police had moved Finley, “the searchwas still substantially contemporaneous with his arrest and was therefore permissible”).132 Id.; see also United States v. Curry, Criminal No. 07-100-P-H, 2008 WL 219966, at *10 (D.Me. Jan. 23, 2008) (upholding the search of a cell phone incident to arrest because it was not materiallydifferent from the search at issue in Finley).133 No. CR 10-00261 JSW, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 21 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 109iPhone was searched at the scene of arrest. 134 During the search, the reviewingdeputy discovered pornographic photographs of the defendant and a younggirl. 135 The deputy searched the iPhone again at the Sheriff’s Office and foundvideos of the defendant and the same girl. 136 The defendant urged the court tofollow those cases finding that cell phones should be considered as an item “notimmediately associated with the person,” 137 which cannot be searched once theyhave been reduced to the exclusive control of the police. The court rejected thisapproach and instead found that because the phone was found on the defendant’sperson, Robinson and Edwards applied:This Court recognizes that many modern cell phones, like computers, arecapable of storing large amounts of personal information. However, absentguidance from the Supreme Court or the Ninth Circuit, the Court is unwillingto conclude that a cell-phone that is found in a defendant’s clothing andon his person, as is the case here, should not be considered an element of theperson’s clothing. Accordingly, the Court concludes that, on the facts of thiscase, Hill’s iPhone should not be treated any differently than, for example, awallet taken from a defendant’s person. 138The court also rejected defendant’s argument that because he was handcuffed inthe back of a patrol car at the time of the search, the search was improper. 139Because the iPhone was found in defendant’s pocket, the court noted, the deputycould search it properly incident to arrest. 140Although several courts have invalidated warrantless searches of cell phonesincident to arrest, this was not due to a rejection of the doctrine’s application tocell phones; 141 rather, courts invalidated the searches based upon the particularfacts of the case. 142 In United States v. Park, 143 for example, approximately ninetyminutes after arrest, police searched defendant’s cell phones at the station134 Id. at *2.135 Id.136 Id.137 Id. at *7.138 Id.139 Id.140 Id. at *8. Cf. Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1169 (D. Or. 2012) (noting thatimplicit in the court’s holding in Hill “is the principle that the potential volume of information anofficer may recover from the search of an electronic device such as a cell phone or camera isirrelevant”).141 See Gershowitz, Password Protected, supra note 12, at 1143 (noting that in those “handful of Rcases” in which evidence was suppressed, “most of those courts did not outrightly reject the practicein all circumstances”).142 See id. Cf. State v. Smith, 920 N.E.2d 949, 952 (Ohio 2009) (noting that whether a searchincident to arrest is determined to be reasonable “is always fact-driven”).143 No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 22 11-JAN-13 11:26110 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWhouse. 144 While not outright rejecting the comparison of cell phones to containers,the court found that cell phones “should not be characterized as an elementof [an] individual’s clothing or person, but rather as a possession “‘within an arrestee’simmediate control’” 145 due to the quantity and quality of informationthat can be stored on the phones. 146 The court thus distinguished its holding fromFinley, which found that cell phones were items associated with the arrestee. 147This distinction led the Park court to find that because the search was not contemporaneouswith the arrest, and the officers did not search the phones due toofficer safety concerns or to prevent the destruction of evidence, the search wasinvalid. 148 As Professor Gershowitz has noted, the Park court rejected the applicationof the doctrine based upon the particular facts of the case. 149In contrast to Park, in People v. Diaz 150 the California Supreme Court heldthat the ninety minutes between the arrest and warrantless search of the defendant’scell phone did not invalidate the search because the phone was “‘immediatelyassociated with [defendant’s] person’” like the clothing in Edwards and thecigarette package in Robinson. 151 Responding to the defendant’s argument thatcell phones should be accorded higher protection due to the quantity of personalinformation it stores, the court noted that “the relevant high court decisions donot support the view that whether police must get a warrant before searching anitem they have properly seized from an arrestee’s person incident to a lawful custodialarrest depends on the item’s character, including its capacity for storingpersonal information.” 152In summary, most lower courts that have considered searches of cell phonesand smartphones incident to arrest have treated these devices like any othercontainer that could be searched under this exception to the warrant requirement.As to those cases that found the searches were not valid due to contempo-144 Id. at *1.145 Id. at *9.146 Id.147 Id. at *8.148 Id.149 Gershowitz, Password Protected, supra note 12, at 1142. Professor Gershowitz has written Rthat the Park court’s “bright-line rule in which all cell phones should constitute nearby possessionsand can never be items associated with the arrestee’s person” ignores that the categorization of a cellphone “depends upon the specific facts of the case.” Id. at 1161.150 244 P.3d 501 (Cal. 2011).151 Id. at 505.152 Id. at 506.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 23 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 111raneous concerns, 153 “[i]mportantly, these contemporaneousness cases limit, butdo not outrightly forbid, the search of cell phones incident to arrest.” 1542. Courts That Have Rejected Application of Search Incident to LawfulArrest Doctrine to Cell PhonesA few courts have rejected the “searchable” container analogy. 155 Thesecourts have instead found that a warrant is required before these devices can besearched. The Ohio Supreme Court “is the most prominent court to reject thesearch incident to arrest of cell phones.” 156 In State v. Smith, 157 officers searcheddefendant’s cell phone incident to his lawful arrest for selling drugs, finding callrecords and phone numbers that confirmed his involvement in the drug sale. 158Although it was not clear when the search occurred, there was evidence that atleast some of the search had occurred at the station 159 and, that the police hadlocated the cell phone on the defendant’s person. 160 The court began by notingthat whether “the warrantless search of a cell phone passes constitutional musterdepends upon how a cell phone is characterized, because whether a search isdetermined to be reasonable is always fact-driven.” 161 Unlike the Fifth Circuit inFinley, the Ohio Supreme Court found that “a cell phone is not a closedcontainer for purposes of a Fourth Amendment analysis” 162 due to the phone’s153 See United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22,2008) (finding that search of cell phone at stationhouse subsequent to arrest could not be justifiedunder doctrine); United States v. Lasalle, Cr. No. 07-00032 SOM, 2007 WL 1390820, at *7 (D. Haw.May 9, 2007) (finding that Edwards did not apply and thus the search of defendant’s cell phone threehours after arrest was invalid under the search incident to arrest exception because it was not “contemporaneous”with the arrest); State v. Novicky, No. A07-0170, 2008 WL 1747805, at *5 (Minn. Ct.App. Apr. 15, 2008) (holding that search of cell phone could not be justified under search incident toarrest exception when cell phone, which had been held in evidence since arrest, was not searched untilthe day of trial).154 Gershowitz, Password Protected, supra note 12, at 1142. R155 The container analogy is not a prerequisite to finding that a search of a cell phone orsmartphone incident to arrest is lawful. In Smallwood v. State, the court noted that “neither Robinsonnor Belton requires an item to be a ‘container’ in order to be searched under arrest.” 61 So.3d 448, 459(Dist. Ct. App. Fla. 2011). See also People v. Diaz, 244 P.3d 501, 510 (Cal. 2011) (noting that applicationof the rule of Robinson, Edwards, and Chadwick, “turns not on whether the item in questionconstitutes a ‘container,’ but on whether it is ‘property,’ i.e., a ‘belonging[ ]’ or an ‘effect’”).156 Gershowitz, Password Protected, supra note 12, at 1140. R157 920 N.E.2d 949 (Ohio 2009).158 Id. at 950. The trial court permitted testimony regarding the call records and phone numbersbut did not permit use of photographs that had been discovered in the phone. Id. at 951.159 Id.160 Id. at 957 (Cupp, J., dissenting).161 Id. at 952.162 Id. at 953-54 (noting that unlike the defendant in Finley, in the instant case defendant didnot concede that a cell phone is analogous to a closed container). But cf. Alexis P. Theriault, CaseComment, Constitutional Law—Warrants Required to Search Cell Phones Seized Incident to Arrest—State v. Smith, 920 N.E.2d 949 (Ohio 2009), 44 SUFFOLK U. L. REV. 317, 323 (2011) (arguing that the

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 24 11-JAN-13 11:26112 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW“ability to store large amounts of private data [which] gives their users a reasonableand justifiable expectation of a higher level of privacy in the information theycontain.” 163 The court reasoned that because cell phones hold only intangibledata, they could not be containers under the definition set forth in Belton. 164Therefore, according to the court, once the phone has been reduced to policecustody,the state has satisfied its immediate interest in collecting and preservingevidence and can take preventative steps to ensure that the data found onthe phone are neither lost nor erased. But because a person has a high expectationof privacy in a cell phone’s contents, police must then obtain awarrant before intruding into the phone’s contents. 165The court did seem to leave open the possible argument that a cell phone couldbe searched incident to arrest if it was necessary for officer safety or other exigentcircumstances: “the warrantless search of data within a cell phone seized incidentto a lawful arrest is prohibited by the Fourth Amendment when the search isunnecessary for the safety of law enforcement officers and there are no exigentcircumstances.” 166At least one other court, the federal district court in Oregon, has adopted theSmith court’s reasoning at least in part. In Schlossberg v. Solesbee, 167 the courtagreed that “personal electronic devices such as cameras and cell phones cannotbe considered closed containers.” 168 Considering a 42 U.S.C. § 1983 claim, thecourt found the warrantless search of the plaintiff’s camera incident to arrest violatedthe Fourth Amendment. 169 However, the court also held that “warrantlesssearches of such devices are not reasonable incident to a valid arrest absent ashowing that the search was necessary to prevent the destruction of evidence, toensure officer safety, or that other exigent circumstances exist.” 170 In essence,then, the court found that electronic devices could not be searched incident toarrest unless the rationales underlying that exception were present. 171Ohio Supreme Court “mistakenly relied on a purely physical definition of a container to concludethat a cell phone is not a container”).163 Id. at 955.164 Id. at 952. Due to the wide variety of functions that basic cell phones have, the court stated“it would not be helpful to create a rule that requires officers to discern the capabilities of a cellphone before acting accordingly.” Id. at 954.165 Id. at 955.166 Id. at 956.167 844 F.Supp. 2d 1165 (D. Or. 2012).168 Id. at 1170.169 Id. at 1166.170 Id. at 1170.171 Id. (finding that “the officer must obtain a warrant unless exigent circumstances exist”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 25 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 113III.SCHOLARLY COMMENTARY AND LEGISLATIVE PROPOSALSA number of legal commentators have argued that searches of cell phones andsmartphones incident to arrest are unreasonable without a warrant. 172 The cruxof this argument is that these devices deserve heightened Fourth Amendmentprotection due to the vast amount of personal information that can be stored onthem; 173 in light of this, the argument continues, defining cell phones andsmartphones as “containers” is misguided. 174 Moreover, scholars argue, allowingsearches incident to arrest undermines the rationales of the exception: officersafety and prevention of evidence destruction. 175 Once seized by the police, theargument continues, these handheld devices are not likely to pose any threat toofficer safety nor could an arrestee access the phone to destroy evidence. 176Some commentators suggest that if there are concerns about destruction of evidence,either remotely or through a quick acting arrestee, 177 then officers canturn off the phones or put them in “airplane mode.” 178172 See Kish, supra note 89, at 471-72 (arguing that once a cell phone comes within the exclu- Rsive control of the police, a warrant is required before the phone can be searched); Orso, supra note 2,Rat 221 (suggesting that if smartphones are equivalent to computers due to storage capabilities, then“[w]hatever rule applies to computers should certainly apply to new generation cellular devices, and asuspicionless search incident to arrest does not pass muster”).173 See, e.g., Knott, supra note 91, at 461 (arguing that courts should look at the “unique stor- Rage capabilities of cell phones” in determining how to treat them under the Fourth Amendment);Snyder, supra note 84, at 158 (noting that courts that have approved searches of cell phones incidentRto arrest “have . . . often ignored or minimized the importance of the more difficult issue involved—whether the vast amount of personal information a cell phone holds should be a relevant factor in theanalysis of the issues”); Ben E. Stewart, Note, Cell Phone Searches Incident to Arrest: A New StandardBased On Arizona v. Gant, 99 KY. L. J. 579, 591 (2011) (arguing that cell phones are not containersfor purposes of the Fourth Amendment).174 See, e.g., Kelly A. Borchers, Note, Mission Impossible: Applying Arcane Fourth AmendmentPrecedent to Advanced Cellular Phones, 40 VAL. U. L. Rev. 223, 258-59 (2005) (arguing that theclosed container analogy is outdated; instead, the “key to finding a rational principle is to acknowledgethat there are two different interests at stake with technological devices: (1) the interest in thephysical device and other media used to store information and (2) the interest in the actual informationalcontents”); Engel, supra note 45, at 289 (positing that “[a]t some point . . . the difference inRdegree between the amount of information traditionally carried in tangible objects and contained inelectronic devices becomes a difference in kind”).175 However, in Robinson, the Supreme Court found that authority to search incident to arrestdid not depend on whether the officer in a particular situation felt in danger or that evidence would infact be found on the arrestee. United States v. Robinson, 414 U.S. 218, 235 (1973).176 Zamani, supra note 80, at 190 (“unless an argument that the smart phone itself can be used Ras a weapon, the only remaining justification for a search incident to arrest is to prevent the concealmentor destruction of evidence”).177 See Gershowitz, The iPhone, supra note 34, at 54 (noting that an “arrestee skilled at using Rhis iPhone might be able to turn on the device, select an application, and destroy text messages,emails, photos, or other evidence in a matter of seconds”).178 Zamani, supra note 80, at 187 (noting that “[l]imiting wireless access protects both the pri- Rvacy rights of the individual and allows law enforcement officers to prevent access to the remotecomputers for the duration of the search”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 26 11-JAN-13 11:26114 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWLegal commentators have proposed various alternatives to applying the searchincident to arrest exception to cell phones and smartphones seized during an arrest.The most obvious proposal, of course, is that no exception should apply:While an officer may lawfully seize a cell phone incident to arrest, the officermust get a search warrant before searching it. 179 Other proposals include applyingGant to all searches incident to arrest, thus limiting the search to evidencerelating to the crime of arrest; 180 limiting searches to applications that are openwhen the phone is seized; 181 limiting searches to a phone’s coding informationwhile excluding content-based information; 182 and limiting searches to informa-179 See, e.g., Stillwagon, supra note 81, at 1201 (noting that “the first step in solving the problem Rof warrantless cell phone searches is for the judiciary to recognize that cell phones are, in fact, muchmore analogous to modern computers than to wallets, briefcases, or even pagers, and thus ‘policeshould obtain a search warrant, just as they would when they seize a personal computer from anaccused’”); Knott, supra note 91 at 469 (“A rule requiring officers to obtain a warrant before search-Ring a cell phone seized incident to lawful arrest provides courts, applying the rule after the fact, with abright-line rule consistent with Fourth Amendment jurisprudence and modern search incident to arrestdoctrine.”); Orso, supra note 2, at 221 (because smartphones are like computers, “a different ruleRshould apply to smart phones as opposed to older generation cellular phones, and it should mirror therule that applies to the search of a computer incident to arrest: a warrant is required”); Justin M.Wolcott, Comment, Are Smartphones Like Footlockers or Crumpled Up Cigarette Packages? Applyingthe Search Incident to Arrest Doctrine to Smartphones in South Carolina Courts, 61 S.C. L. REV. 843,860 (2010) (arguing that smartphones resemble mobile computers and thus should not be searchedwithout a warrant).180 See Gershowitz, The iPhone, supra note 34, at 49; see also Gershowitz, Password Protected, Rsupra note 12, at 1146 (noting that “while it is possible that the Gant doctrine will drastically reduceRthe number of cell-phone searches conducted incident to arrest, the Court must first adopt the doctrine. . . [t]he prospects of that occurring in the near future are uncertain to say the least”);O’Connor, supra note 96, at 700 (Gant “marks a departure from the Court’s previous adherence toRbright-line rules and creates a potential opening for protecting the privacy of all contents of a cellphone, including text messages, unless an officer has a warrant or probable cause to believe the phonecontains evidence of a particular crime” ); Stewart, supra note 173, at 598 (arguing that the standardRin Gant should apply to searches of cell phones).181 See Orso, supra note 2, at 220; Gershowitz, The iPhone, supra note 34, at 53 (describing an R“open applications” alternative to a thorough search through an iPhone, but also noting problemswith approach). But see Zamani, supra note 80, at 198 (noting that it “seems parsimonious to simplyRlimit a search incident to arrest to the presently exposed screen on the phone”).182 “Coding information describes information that merely identifies the parties to a communication.This information includes phone numbers, email addresses, pager numbers, and any label thatuniquely identifies an account. This information is similar to the return or receiving address printedon an envelope, which uniquely identifies a location. It tells a third party where to deliver the letter,but it does not reveal the handwriting inside.” Orso, supra note 2, at 187-88 (internal footnote omit-Rted). Content-based information, on the other hand, “describes (1) the substance of a communicationand (2) a privately stored piece of information reserved for personal use. This information includestext messages, emails, voicemails, digital photographs, and other data.” Id. at 188. “Where traditionalnotions of physical scope are a poor fit for digital information,” distinguishing between coding andcontent-based information “provides a virtual ‘grab area’ within which law enforcement could legallyoperate.” Id. at 212. Orso also proposes that because smartphones are essentially computers, theyshould be treated more like computers than older-generation cell phones. Id. at 222 & n.180. Courtsshould “invalidate the warrantless search of a smart phone if the only basis for the search is that it was

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 27 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 115tion stored on the phone itself as opposed to allowing access to data stored remotely.183 Another proposed approach is to adopt the reasoning in Park:Regardless of the facts of the specific case, classify cell phones as “possessions inan arrestee’s immediate control subject to the warrant requirement once they arewithin the exclusive control of the police.” 184Some have suggested that state legislatures should be encouraged to enactmore protective laws to restrict the doctrine 185 or that state courts could look totheir own constitutions for more protection. 186 The California legislature appearsto be the only state legislature to address this issue to date. On September 11,2011, the California legislature passed SB 914, which prohibited the search of cellphones incident to arrest. 187 The bill was passed in response to the CaliforniaSupreme Court’s decision in Diaz, discussed supra, 188 and mandated that cellphones should be treated as an item not immediately associated with the arrestee:It is the intent of the Legislature in enacting [this bill] to reject as a matterof California statutory law the rule under the Fourth Amendment to theincident to arrest.” Id. at 224. See Zamani, supra note 80, at 192 (noting that the versatility of aRsmartphone “poses a unique problem: whereas coding information in other contexts may be readilyviewed or captured separate from its accompanying content, in the context of both warranted andwarrantless searches of smart phones, it often exists side-by-side with content-based information”)(internal footnote omitted).183 See Gershowitz, The iPhone, supra note 34, at 56 (suggesting that one way to limit the Rsearch incident to arrest doctrine would be to draw a line between the iPhone’s internet browserfunction and its other applications that do not connect to the internet; drawing a distinction betweendata that is “on” or “in” the phone and data that is “simply accessible via the iPhone”). But see Orso,supra note 2, at 211 (suggesting that this approach, while protecting some information, is still overlyRbroad and would leave “too much private information unprotected from a search incident to arrest”);Zamani, supra note 80 at 198 (noting that the average law enforcement officer searching aRsmartphone under a warrant exception might not be able to distinguish between data stored locallyand data stored in “the cloud”).184 Kish, supra note 89, at 471-72 (arguing that treating cell phones as possessions under Chad- Rwick “best accommodates current and future technology” while remaining consistent with SupremeCourt precedent; neutral magistrates “are in the best position to protect the legitimate expectations ofprivacy associated with new technology”). Professor Gershowitz has written, however, that the Parkcourt’s “bright-line rule in which all cell phones should constitute nearby possessions and can neverbe items associated with the arrestee’s person” ignores that the categorization of a cell phone “dependsupon the specific facts of the case.” Gershowitz, Password Protected, supra note 12, at 1161.R185 See Orso, supra note 2, at 220; Gershowitz, Password Protected, supra note 12, at 1143 R(noting that legislatures have taken action in other circumstances “to narrow what they believe to bean overly broad search incident to arrest doctrine”); Robinton, supra note 83, at 347 (arguing that,with respect to searches of computers, “legislatures must strike a balance between these competingfactions” of privacy and legitimate purposes of law enforcement).186 See Gershowitz, The iPhone, supra note 34, at 50 (noting that a handful of state courts have Rlooked to their own constitutions for limiting the search incident to arrest exception).187 S.B. 914, 2011-2012 Reg. Sess. (Cal. 2011), available at http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0901-0950/sb_914_bill_20110902_enrolled.pdf.188 See supra notes 150-52 and accompanying text.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 28 11-JAN-13 11:26116 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWUnited States Constitution announced by the California Supreme Court inPeople v. Diaz. The Legislature finds that once in the exclusive control ofthe police, cellular telephones do not ordinarily pose a threat to officersafety. The Legislature declares that concerns about destruction of evidenceon a cellular telephone can ordinarily be addressed through simple evidencepreservation methods and prompt application to a magistrate for a searchwarrant and, therefore, do not justify a blanket exception to the warrantrequirement. 189California Governor Jerry Brown vetoed the bill on October 9, 2011, declaringthat the “courts are better suited to resolve the complex and case-specific issuesrelating to constitutional search-and-seizures protections.” 190Two state district courts of appeal in Florida have certified to the Florida SupremeCourt similar questions “of great public importance” 191 asking whether“the holding in United States v. Robinson . . . allow[s] a police officer to searchthrough photographs contained within a cell phone which is on an arrestee’s personat the time of a valid arrest.” 192 The Florida Supreme Court has not yetdecided the question. 193IV.THE SEARCH INCIDENT TO LAWFUL ARREST DOCTRINE SHOULD EXTENDTO SMARTPHONESThe United States Supreme Court has not yet had occasion to address a warrantlesssearch of a personal electronic device incident to arrest. 194 Whether theCourt would consider a cell phone or a smartphone searchable under this exceptionto the warrant requirement is not clear. However, while the Court has not189 S.B. 914 § 1(e), 2011-2012 Reg. Sess. (Cal. 2011).190 Veto Message to Cal. S.B. 914 (Oct. 9, 2011), available at http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0901-0950/sb_914_vt_20111009.html. The United States Supreme Court denied certioraria few days prior to the governor’s veto, on October 3, 2011. See Diaz v. California, 132 S.Ct. 94(2011).191 Fawdry v. State, 70 So.3d 626 (Dt. Ct. App. Fla. 2011); Smallwood v. State, 61 So.3d 448(Dt. Ct. App. Fla. 2011).192 Fawdry, 70 So.3d at 630.193 The Supreme Court of Florida heard oral arguments in the case in February 2012. Giventhe current state of the doctrine and the fact that “legislative protection [is] unlikely,” Professor Gershowitzhas suggested that cell phone and smartphone users should password-protect their phones,because “protection against searches incident to arrest is left to cell-phone users themselves.” Gershowitz,Password Protected, supra note 12, at 1147; see also United States v. Gomez, 807 F. Supp. 2dR1134, 1150 (S.D. Fla. 2011) (suggesting that password protecting an electronic device might be a practicalstep to protecting information).194 See Engel, supra note 45, at 237 (“The Supreme Court has not directly considered whether Ra search incident to arrest may include a search of a cell phone’s contents and, if it does, the thoroughnessof such a search. The extent to which the Fourth Amendment provides protection for the contentsof electronic communications and images stored on a cell phone in a search incident to arrestremains an open question.”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 29 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 117opined on that exact question, the Court has long determined that the FourthAmendment, at its core, imposes a reasonableness standard. 195 In Brigham Cityv. Stuart, 196 the Court stated that “because the Fourth Amendment’s ultimatetouchstone is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.”197 And, the Court has determined that a search incident to lawful arrestis “not only an exception to the warrant requirement of the FourthAmendment, but is also a ‘reasonable’ search under that Amendment.” 198 Finally,the Court has held that such a search can include containers located on andaround an arrestee, without any additional justification for the search. 199I agree that there are concerns about warrantless searches of electronic devicesincident to arrest, particularly with regards to accessing information stored on theinternet. However, I question whether the above proposals, both scholarly andlegislative, to curb these searches overlook some strengths of the argument to thecontrary: that current search incident to arrest doctrine does not need to be revisedto protect privacy rights in this new technology. While not indisputablyclear, there is a fair argument that the reasonableness standard encompasses warrantlesssearches of smartphones incident to arrest under the Court’s current jurisprudencein this area.As an initial matter, the Supreme Court has emphasized that bright-line rulesin Fourth Amendment doctrine are important for police officers, courts, and citizens.200 And, as discussed infra, the technological sophistication of these devices195 See United States v. Chadwick, 433 U.S. 1, 9 (1977) (stating that the “fundamental inquiryin considering Fourth Amendment issues is whether or not a search or seizure is reasonable under allthe circumstances”). See also, Lee, Reasonableness, supra note 7, at 9 (noting that in “case after case”Rthe Court “has announced that the ‘touchstone of the Fourth Amendment is reasonableness’”).196 547 U.S. 398 (2006).197 Id. at 403.198 United States v. Robinson, 414 U.S. 218, 235 (1973).199 See Gershowitz, The iPhone, supra note 34, at 33. R200 See New York v. Belton, 453 U.S. 454, 459-60 (1981) (“When a person cannot know how acourt will apply a settled principle to a recurring factual situation, that person cannot know the scopeof his constitutional protection, nor can a policeman know the scope of his authority.”); see also OrinS. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 HARV. L. REV. 476, 537(2011) (noting that the “stability of Fourth Amendment law is desirable because it enhances the clarityof the law, which in turn enables the police to act as effective agents within the permitted zone ofpower carved out by the courts”); Lee, Package Bombs, supra note 9, at 1468 (noting that the Su-Rpreme Court has “on numerous occasions spoken of the importance of having bright-line rules in theFourth Amendment context to guide police officers who often need to make quick, on-the-spot decisionsin the field”); Mayakis, supra note 95, at 164 (noting that “law enforcement officials need toRhave a bright-line rule that is relatively easy to apply during the split-second judgments that theirprofession requires in order to ensure their safety and to preserve evidence”); Joshua S. Levy, Towardsa Brighter Fourth Amendment: Privacy and Technological Change, 16 VA. J.L. & TECH. 499,513 (2011) (noting that it is “indisputable that bright line rules provide great certainty to those regulated”and, in the “Fourth Amendment context, such rules enable police to know precisely how farthey can intrude while conducting an investigation and, importantly, where they cannot intrude”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 30 11-JAN-13 11:26118 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWis more a quantitative change than a qualitative one. This quantitative change inthe information that can now be carried should not change what the Court hasdetermined is reasonable for police officers to do pursuant to the search incidentto lawful arrest doctrine. Treating cell phones and smartphones like traditionalcontainers—at least with regards to the data stored on the phones 201 —is consistentwith Supreme Court precedent, which has broadly defined “containers” andwhich has not distinguished between “worthy and unworthy containers.” 202 Likewise,this approach provides police in particular with a consistent set of rules toapply. 203Finally, the vast majority of courts that have addressed the constitutionality ofwarrantless searches of cell phones and smartphones incident to arrest have determinedthat the current doctrine applies to these searches even if the doctrine isnot applicable in the specific case before the court. 204 These lower courts havedemonstrated that they are unwilling to carve out an exception for cell phonesand smartphones. 205 Until and unless the United States Supreme Court providesadditional guidance on this issue, courts should continue to follow currentdoctrine. 206201 Professor Gershowitz has proposed that an “approach that differentiates between materialdownloaded onto the [smartphone] and material that is simply accessible via the [smartphone] seemsto make sense.” Gershowitz, The iPhone, supra note 34, at 57. Applying a similar analogy to Robin-Rson, Professor Gershowitz notes that “just as the police could not search Mr. Robinson’s medicalrecords stored in his house (rather than on his person), the police also could not search electronic datanot currently downloaded onto his phone.” Id.202 See Lee, Package Bombs, supra note 9, at 1414 (noting that the Supreme Court has defined Rthe term “container” much more expansively than “portable container[s] that can hold one’s personalbelongings, such as suitcases, backpacks, and purses”).203 See LAFAVE, SEARCH AND SEIZURE, supra note 31, at §5.2(c) (noting that police officers Rneed a “set of rules which, in most instances, make it possible to reach a correct determination”before they act, rather than a “highly sophisticated set of rules, qualified by all sorts of ifs, ands andbuts and requiring the drawing of subtle nuances and hairline distinctions”).204 See supra notes 141-49 and accompanying text. R205 See Smallwood v. State, 61 So.3d 448, 459 (Dist. Ct. App. Fla. 2011) (recognizing concernsabout amount of data stored on cell phones but noting that “courts have found the broad language inRobinson permits searches incident to arrest of wallets, purses, date books, and other similar itemsthat contain the same types of personal information stored on a cell phone”); People v. Diaz, 244 P.3d501, 511 (Cal. 2011) (finding that “under the United States Supreme Court’s binding precedent, thewarrantless search of defendant’s cell phone [incident to arrest] was valid”).206 See United States v. Gomez, 807 F. Supp. 2d 1134, 1153 (S.D. Fla. 2011) (noting that “inlight of the current case law, we are precedent-bound to conclude that all of the information uncoveredfrom [d]efendant’s cell phone [which was searched incident to arrest] squared with the FourthAmendment’s present safeguards”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 31 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 119A. Treating Smartphones as Containers Provides a Bright Line Rule“In its search-incident-to-arrest jurisprudence, the Court has long endorsedbright-line rules that will be workable for police on the street.” 207 ProfessorLaFave has written that because the exclusionary rule is “primarily intended toregulate the police in their day-to-day activities,” 208 it should be expressed “interms which are readily applicable by the police in the context of the law enforcementactivities in which they are necessarily engaged.” 209 As with other itemslawfully seized and searched by the police incident to arrest, cell phones andsmartphones should be subject to the same rules, at least with regard to datastored on the devices. 210 Thus, if an officer seizes a smartphone from the personof the arrestee (such that it is fair to say it was “immediately associated” with thearrestee), then the officer should be able to search the phone just as the officerdid with the cigarette package in Robinson; the fact that the officer has reducedthe phone to her control is of no consequence. 211 If, on the other hand, thesmartphone is not within the immediate control of the arrestee, then the officershould follow the rule of Chadwick: Once the phone has been reduced to theofficer’s exclusive control, the officer must get a warrant to search it. 212 This providesthe police with a workable rule that should be easy to apply. 213207 Gershowitz, Password Protected, supra note 12, at 1145. See also United States v. Flores- RLopez, 670 F.3d 803, 809 (7th Cir. 2012) (noting that “[t]oting up costs and benefits is not a feasibleundertaking to require of police officers conducting a search incident to an arrest”).208 LAFAVE, SEARCH AND SEIZURE, supra note 31, at §5.2(c). R209 Id.210 As Professor Clancy has written about computers: “[a]lthough one may dispute the correctnessof some of the Supreme Court’s development of Fourth Amendment principles . . . there isnothing sui generis where the target of the search or seizure is a computer or other device that containselectronic evidence. Thomas K. Clancy, The Fourth Amendment Aspects of Computer Searchesand Seizures: A Perspective and a Primer, 75 MISS. L. J. 193, 272 (2005). See also Josh Goldfoot, ThePhysical Computer and the Fourth Amendment, 16 BERKELEY J. CRIM. L. 112, 150 (2011) (noting that“so long as those objects come into law enforcement’s possession lawfully, courts do not requireadditional Fourth Amendment justification before police subject them to examination”).211 See People v. Diaz, 244 P.3d 501, 509 (Cal. 2011) (noting that the Court in Robinson “heldthat a police officer, despite seizing a cigarette package from the defendant’s shirt and reducing it topolice control, did not need to obtain a warrant before opening the package and examining its contents”).See also United States v. Flores-Lopez, 670 F.3d 803, 807 (7th Cir. 2012) (remarking that it is“not even clear that we need a rule of law specific to cell phones or other computers” in light of thecurrent search incident to lawful arrest doctrine, which allows police to search pocket diaries andaddress books found on an arrestee incident to arrest).212 See Diaz, 244 P.3d at 505-06 (noting that the “key question” is whether defendant’s cellphone was like the cigarette package in Robinson or the locker in Chadwick).213 Cf. United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (noting that requiring policeofficers to determine the storage capacity of a cell phone before conducting a search “would simply bean unworkable and unreasonable rule”); Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1170 (D. Or.2012) (noting that a “primary goal in search and seizure law has been to provide law enforcementwith clear standards to follow”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 32 11-JAN-13 11:26120 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWMoreover, the Supreme Court “has explicitly refused to draw a distinction betweenworthy and unworthy containers,” 214 and instead “has defined the term‘container’ much more expansively.” 215 While at one point the Court “attemptedto distinguish among types of containers in ranking expectations of privacy,” 216the Court subsequently adopted the view that the “traveler who carries a toothpasteand a few articles of clothing in a paper bag . . . [may] claim an equal rightto conceal his possessions from official inspection as the sophisticated executivewith the locked attaché case.” 217 It should follow from this that the arrested executivewith a smartphone should not be entitled to more protection for the informationon that smartphone than the traveler who is arrested with her paperaddress book in her pocket. 218 To treat the two situations differently would providethe more expensive device (and the person who could afford it) with moreprotection than the less expensive paper address book (and the person who couldafford only that).Finally, while users of smartphones and cell phones may store highly personalinformation on these devices, this is a personal choice of the user and should notchange the nature of the “container.” As the court noted in People v. Diaz, the“relevant high court decisions do not support the view that whether the policemust get a warrant before searching an item [they] have properly seized from anarrestee’s person incident to a lawful custodial arrest depends on the item’s character,including its capacity for storing personal information.” 219 Similarly, thecourt in Fawdry v. State rejected a distinction based upon “the manner in which[personal information] is stored”:Although it may be true that a digital file itself is “wholly unlike any physicalobject found within a closed container,” the information found within itis likely no different than information found within a printed physical copyof a digital file. Indeed, before the innovations made available in current214 Lee, Package Bombs, supra note 9, at 1414. R215 Id.216 Clancy, supra note 210, at 216. R217 United States v. Ross, 456 U.S. 798, 822 (1982).218 Cf. Theriault, supra note 162, at 324 (noting that the Smith court, by prohibiting all searches Rof cell phones incident to arrest, “has effectively protected the technologically advanced arrestee’saddress book, even though its physical-world counterpart is not similarly protected”); Clancy, supranote 210, at 217 (writing that based on the reasoning in Ross, “it seems clear that the Supreme CourtRwould–and should–reject a special rule for electronic evidence containers”).219 People v. Diaz, 244 P.3d 501, 506 (Cal. 2011). Referencing United States v. Ross, the courtstated that if someone has an equal right to conceal possessions in a paper bag as the “sophisticatedexecutive with the locked attaché case,” then “travelers who carry sophisticated cell phones have nogreater right to conceal personal information from official inspection than travelers who carry suchinformation in ‘small spatial containers.’” Id. at 508. “Were the rule otherwise, those carrying smallspatial containers, which are legally subject to seizure and search if found upon the person at the timeof arrest, would find little solace in discovering that their intimate secrets would have been protectedif only they had used a device that could hold more personal information.” Id. at 508 n.11.

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 33 11-JAN-13 11:26WARRANTLESS SEARCHES AND SMARTPHONES 121cell phone technology, the information contained within digital files wouldhave been contained in tangible copies and carried in closed containers.Digital files and programs on cell phones have merely served as replacementsfor personal effects like address books, calendar books, photo albums,and file folders previously carried in a tangible form. Viewed in thislight, the cell phone merely acts as a case (i.e. closed container) containingthese personal effects. When in tangible form, the aforementioned personaleffects could clearly be searched incident to arrest if found in a case carriedon the suspect’s person or in a vehicle which the suspect occupied. 220Therefore, cell phones and smartphones should be subject to the same rules asother containers seized and searched incident to a lawful custodial arrest.B. Lower Courts Have Applied the Doctrine to Cell PhonesAs discussed in more detail above, the majority of courts that have consideredwhether the search incident to arrest doctrine should apply to cell phones andsmartphones have found that it does. 221 Through these decisions, these courtshave demonstrated that they are following Supreme Court precedent 222 and areunwilling to carve out an exception for cell phones and smartphones. In thosecases in which the court invalidated the search, it was based upon the particularfacts of the case and was not a repudiation of the doctrine’s applicability to cellphone searches incident to arrest. 223 This is not inconsistent with Supreme Courtprecedent in this area. 224 Indeed, the proper scope of a search incident to arrestdepends on the factual circumstances of the particular case. 225 Thus, in manycases, courts have to make fact-bound determinations of whether the police haveexceeded the scope of the doctrine. Determining whether a cell phone orsmartphone has been appropriately searched incident to arrest is the same type ofdetermination that courts have been making since the doctrine was estab-220 Fawdry v. State, 70 So.3d 626, 630 (Dist. Ct. App. Fla. 2011).221 See e.g., Gracie v. State, 92 So. 3d 806, 812 (Ala. Crim. App. 2011) (noting that “[w]e agreewith the majority of jurisdictions surveyed that a warrantless search of a defendant’s cellular phonefollowing his arrest does not violate Fourth Amendment principles”).222 See People v. Diaz, 244 P.3d 501, 511 (Cal. 2011) (applying the Supreme Court’s “bindingprecedent” and, responding to the dissent, that “[i]f the wisdom of the high court’s decisions ‘must benewly evaluated’ in light of modern technology . . . then that reevaluation must be undertaken by thehigh court itself”).223 See Gershowitz, Password Protected, supra note 12, at 1143 (noting that those “handful of Rcases” in which evidence was suppressed, “most of those courts did not outrightly reject the practicein all circumstances”).224 Kerr, supra note 200, at 535 (noting that “Fourth Amendment caselaw is still decided on acase-by-case basis”).225 See DRESSLER & MICHAELS, supra note 15, at 192 (noting that the “scope of the grabbing Rarea depends on the circumstances of the individual case” and that, this area changes “if the arresteemoves”).

\\jciprod01\productn\D\DCR\16-1\DCR102.txt unknown Seq: 34 11-JAN-13 11:26122 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWlished. 226 The fact that lower courts are making these determinations now demonstratesthat courts can maintain a balance between privacy rights and lawenforcement regardless of the new technology.CONCLUSIONEmerging technology often raises new questions for courts interpreting how toapply Fourth Amendment doctrine. The United States Supreme Court may ultimatelyconclude that the unique storage capacity of smartphones means thatusers of these devices have a higher expectation of privacy and thus these devicesmay not be searched without a warrant incident to arrest. This article has arguedthat until and unless the Court rules on this issue, lower courts have demonstratedthat the current Fourth Amendment doctrine, specifically the search incidentto lawful arrest exception to the warrant requirement, strikes an appropriatebalance between privacy interests on the one hand, and law enforcement needson the other.226 See United States v. Gomez, 807 F. Supp. 2d. 1134, 1148 (S.D. Fla. 2011) (noting that inorder to determine the “proper scope of a search incident to arrest,” courts must consider the locationof the device and the time the search was conducted incident to arrest).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 1 11-JAN-13 11:44THREADING THE NEEDLE: CONSTITUTIONALWAYS FOR LOCAL GOVERNMENTS TO REFUSECOOPERATION WITH CIVIL IMMIGRATION POLICIESMary M. Cheh*INTRODUCTIONOn October 19, 2011, the mayor of Washington, D.C. issued an Executive Orderto limit the District’s cooperation with the federal government’s Immigrationand Naturalization Service in identifying and deporting undocumented residents.1 In so doing, the mayor joined with many other communities 2 that, whilespecifically not shielding undocumented aliens engaged in criminal activity, wantto maintain the trust and care of the many law-abiding immigrants within theirborders. The mayor’s Order is a direct response to the federal government’s moreaggressive effort to enlist local authorities in the roundup of undocumentedaliens, 3 and raises the question which is the subject of this paper: Consistent withprinciples of federalism and the protections of the Tenth Amendment, how farmay the federal government go in insisting on local cooperation with its policygoals, and how far may local communities go in resisting? As will be seen, thefederal government has extensive, though not unlimited, power to achieve itsends, but there is a sliver of resistance available to local governments, and themayor’s Order nicely threads the needle of what can be done.I. THE FEDERAL PUSH TO ENLIST LOCAL COMMUNITIES IN IDENTIFYING ANDDEPORTING UNDOCUMENTED IMMIGRANTSFaced with the enormity of the problem of dealing with millions of personsillegally in the United States, the federal government has, from time to time,explored ways of enlisting state and local governments in the enforcement ofimmigration laws. The goal is to produce a “force multiplier” by uniting the re-* Elyce Zenoff Research Professor of Law, The George Washington University Law School;Councilmember, Council of the District of Columbia. I would like to thank both Adam Mickley andJordan Porter for their research assistance.1 D.C. Mayor’s Order No. 2011-174, 58 D.C. Reg. 009083 (Oct. 19, 2011).2 E.g., AARTI KOHLI ET AL., THE CHIEF JUSTICE EARL WARREN INST. ON LAW & SOCIAL POL-ICY, SECURE COMMUNITIES BY THE NUMBERS: AN ANALYSIS OF DEMOGRAPHICS & DUE PROCESS 3(2011) (stating that New York, Illinois, and Massachusetts sought to withdraw from the Secure Communitiesimmigrant reporting program in 2011).3 See KOHLI ET AL., supra note 2, at 1 (stating that expanded federal immigration programs Rhave caused an increase in annual deportations of more than 400% since 1996); RESTORING COMMU-NITY: A NATIONAL COMMUNITY ADVISORY REPORT ON ICE’S FAILED “SECURE COMMUNITIES” PRO-GRAM 1 (2011) (stating that the federal immigration program “Secure Communities” was touted as aforce multiplier of immigration authorities).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 2 11-JAN-13 11:44124 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWsources of the federal government with local authorities’ presence on the groundto identify and remove persons illegally in the country. 4 In that vein, Congressauthorized the creation of collaborative programs pursuant to the Illegal ImmigrationReform and Immigrant Responsibility Act (IIRIRA) of 1996. 5 Section287(g) of the Act permits the Attorney General to enter into written agreementswith state or local governments authorizing them to perform the functions of animmigration officer relating to “the investigation, apprehension or detention ofaliens in the United States . . . .” 6Local jurisdictions reacted differently to the prospect of working with federalauthorities in enforcing immigration laws. Many jurisdictions, like Arizona, wereeager participants. 7 Indeed, Arizona has been so exuberant in its drive to removeundocumented immigrants from its borders that the federal government has hadto sue to restrain its efforts. 8 Additionally, most jurisdictions reacted positively tocollaborating with federal immigration authorities, leading to a 400% increase inannual deportations since the passage of the law. 9 Other jurisdictions, however,resisted or later regretted and wished to withdraw their cooperation: Somepassed statutes prohibiting employees from sharing immigration information withthe federal government, 10 from using state or local resources to assist the federalgovernment in removal efforts, 11 or just stopped asking about immigration status4 See RESTORING COMMUNITY: A NATIONAL COMMUNITY ADVISORY REPORT ON ICE’SFAILED “SECURE COMMUNITIES” PROGRAM 15 (2011) [hereinafter RESTORING COMMUNITY].5 Id.6 Illegal Immigration Reform and Immigrant Responsibility Act § 287(g), 8 U.S.C. § 1357(g)(1)(2006).7 See Support Our Law Enforcement and Safe Neighborhoods Act, S.B. 1070, 49 S., 2d Reg.Sess. (Ariz. 2010). South Carolina, Alabama, Georgia, Indiana and Utah have passed similar bills,which require or encourage police officers to check the immigration status of people whom the officersbelieve may be illegally in the country. South Carolina’s law goes further than Arizona’s law bymaking it illegal for any person to transport or harbor an undocumented immigrant. However, Alabamaearns the award for being the most extreme as it forces public school districts to report the datato the state regarding the immigration status of its students and their parents while also nullifying allcontracts between a citizen and undocumented immigrant. See Robbie Brown, Parts of ImmigrationLaw Blocked in South Carolina, N.Y. TIMES, Dec. 23, 2011, at A18; see also Editorial, Nation’sCruelest Immigration Law: Religious Leaders Sue to Block Alabama’s Sweeping and Punitive NewRegime, N.Y. TIMES, Aug. 29, 2011, at A22.8 United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), cert. granted, 132 S. Ct. 845 (2011).9 KOHLI ET AL., supra note 2, at 1. R10 See NAT’L IMMIGRATION LAW CTR., ANNOTATED CHART OF LAWS, RESOLUTIONS, AND POL-ICIES INSTITUTED ACROSS THE U.S. PROTECTING RESIDENTS FROM LOCAL ENFORCEMENT OF IMMI-GRATION LAWS (2004). States removing themselves from federal enforcement regimes can take manyforms. For example, Virginia’s governor recently signed H. 1160, which prohibits employees fromaiding the federal government in detaining individuals pursuant to the National Defense AuthorizationAct for Fiscal Year 2012 (P.L. 112-81, § 1021). See David B. Rivkin Jr. and Charles D. Stimson,The Danger in Virginia’s Detainee Law, WASH. POST, Apr. 27, 2012, at A15.11 E.g., H.R.J. Res. 22, 23d Leg., 1st Sess. (Alaska 2003).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 3 11-JAN-13 11:44THREADING THE NEEDLE 125so as not to have that information available to give to federal authorities. 12 Partof the IIRIRA specifically outlawed one form of non-cooperation in that it prohibitedlocal or state governments from preventing their employees from voluntarilysharing information with immigration officials, a provision that doomed a1989 New York City Mayor’s Order to that effect. 13The program causing the current tensions between local jurisdictions—includingWashington, D.C.—and immigration authorities is the Secure Communitiesprogram. Begun in March 2008, Secure Communities was initially a pilot programoperating in fourteen jurisdictions, but it has since expanded dramatically andnow embraces more than 1500 jurisdictions in forty-four states and territories. Atits heart, Secure Communities is an information-sharing program whereby informationfurnished by local law enforcement to the Federal Bureau of Investigation(FBI) for fingerprint checking is then shared simultaneously with the Immigrationand Customs Enforcement agency (ICE) of the Department of HomelandSecurity. Access to this data enables ICE to run federal immigration checks onevery person booked into jail. 14Initially, the Secure Communities program was thought to be voluntary andbased on agreements entered into with local jurisdictions. Under those agreements,the jurisdictions agree to data sharing with ICE, perhaps enter separateagreements to allow access to other databases kept by the local jurisdiction (e.g.Philadelphia’s agreement to allow ICE to access its PARS database, which liststhe country of origin of everyone in police custody at any given moment 15 ), andagree to honor federal detainers allowing ICE forty-eight hours to pick up personsheld by the local jurisdiction and determined to be in the United Statesillegally.As communities, reacting to local opposition to these agreements and seeingthe havoc caused by fear, disruption to local services, and lost cooperation with12 E.g., Seattle, Wash., Municipal Code 4.18.015(A) (2003).13 City of N.Y. Exec. Order No. 124 (Aug. 7, 1989). Similarly, Los Angeles recently announcedthat it would stop impounding vehicles of drivers who do not have a license because the policy wasensnaring too many illegal immigrants, who are unable to obtain licenses. Jennifer Medina, A Changein Police Policy Has Immigrants Hoping for More, N.Y. TIMES, May 3, 2012, at A17. The policy shiftwas aimed at tamping down fear of the police among the illegal immigrant population and encouragingcooperation with police investigations. Id.14 See HOMELAND SEC. ADVISORY COUNCIL, U.S. DEP’T OF HOMELAND SEC., TASK FORCE ONSECURE COMMUNITIES FINDINGS & RECOMMENDATIONS 11-13 (stating that Secure Communities wastouted as increasing interoperability between FBI, the Department of Homeland Security, and locallaw enforcement authorities, that Secure Communities would focus on aliens convicted of seriouscriminal offenses, and that Secure Communities would be an opt-in, opt-out agreement with states).15 Philadelphia City Council Condemns City Cooperation with ICE, NEW SANCTUARY MOVE-MENT OF PHILADELPHIA (June 24, 2011), http://nsmphilly.blogspot.com/2011/06/philadelphia-citycouncil-condemns-city.html.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 4 11-JAN-13 11:44126 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWpolice, 16 decided to “opt-out” of the agreements, federal officials announced thatthe program was not, in fact, voluntary. Federal officials then issued statements,some contradictory, explaining what it meant by saying there was no need forlocal agreements and that the data sharing was not voluntary. 17It is the federal government’s position that the data concerning arrest informationprovided by a local jurisdiction to the FBI for a fingerprint check will beshared with Homeland Security, that sharing is going to be automatic, and that alocal government need not agree or take any other action. Thus, once the localjurisdiction submits the data to the FBI, the federal government is free to sharethat with immigration authorities, and there is no “opt-out.” At the same time,the federal government has not mandated that the local jurisdiction cooperate bysharing the data in the first place, and the federal government has acknowledgedthat honoring a federal detainer is a matter for the local jurisdiction to decide foritself. 18Notwithstanding this “clarity,” the Secure Communities Program has raisedthe issue of whether the federal government could mandate local disclosure ofimmigration status, mandate local collection of immigration-status information,or require local communities to detain undocumented immigrants in their custodyto facilitate pick-up by the INS. 19II.THE D.C. MAYOR’S ORDERFrom the beginning, Washington, D.C. declined to participate in the SecureCommunities program. 20 Nevertheless, given the large immigrant community in16 See RESTORING COMMUNITY, supra note 4; AM.’S VOICE EDUC. FUND, PUBLIC SAFETY ON RICE: HOW DO YOU POLICE A COMMUNITY THAT WON’T TALK TO YOU? 3 (2011).17 Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction Compellingthe Defendants to Produce Limited “Opt-Out” Records Responsive to Plaintiffs’ FOIA Requests at7, Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency,Nos. 10-CV-3488 (SAS) (KNF), 10-CV-2705, (S.D.N.Y. Oct. 28, 2010), 2010 WL 4952422.18 See RESTORING COMMUNITY, supra note 4. See infra, notes 79-80 and accompanying text. R19 See RESTORING COMMUNITY, supra note 4, at 26-33.20 In 2007, the Council of the District of Columbia passed Resolution 17-0377, “Sense of theCouncil Urging the Federal Government to Adopt a Sensible Immigration Policy Emergency DeclarationResolution of 2007,” largely in response to the increase in immigration removals. On May 4,2010, all thirteen members of the Council introduced B18-0795, the Secure Communities Act of 2010,which mandated that “The District of Columbia shall not transmit arrest data for an individual toICE.” In response, and before the measure could come up for a hearing, on July 22, 2010, MetropolitanPolice Department Chief Cathy Lanier wrote to Councilmember Phil Mendelson, Chair of theCommittee on Public Safety and the Judiciary, that the District would be terminating its Memorandumof Agreement with ICE and would no longer participate in the Secure Communities program.On November 16, 2011, Councilmember Mendelson, joined by all of his colleagues on the Council,introduced B19-0585, the “Immigration Detainer Compliance Amendment Act of 2011.” As introduced,the bill limits the situations in which the District will comply with an ICE detainer: only wherea written agreement exists between the federal government and the District, the individual being heldis an adult, and the individual has been convicted of a “dangerous crime.” Moreover, the bill man-

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 5 11-JAN-13 11:44THREADING THE NEEDLE 127the District and because there remained considerable uncertainty over whetherlocal law enforcement information was or would be shared with immigration authorities,Mayor Vincent Gray issued Mayor’s Order 2011-174, “Disclosure ofStatus of Individuals: Policies and Procedures of District of Columbia Agencies.”The purpose of the Order is described as follows: “to establish District-wide policyand procedures concerning the disclosure of immigration status, and to insurethat District resources are not used for federal immigration enforcement activities.”21 Citing the need to provide fair and equitable treatment to all personsresiding in the District and to promote important community policing goals, theMayor identified “[t]he limited resources of the District, the complexity of immigrationlaws, limitations on authorities, the risk of civil liability for immigrationand enforcement activities, and the clear need to foster trust and cooperationfrom the public, including members of immigrant communities” as the “principalfactors” in formulating the Order. 22The Order provides:• Public safety agencies and officials “shall not inquire about a person’simmigration status or contact ICE for the purpose of initiating civil enforcementof immigration proceedings that have no nexus to a criminalinvestigation. It shall be the policy of public safety agencies not to inquireabout the immigration status of crime victims, or others who call or approachthe police seeking assistance.” 23• Public safety agencies shall adopt policies to insure “that District of Columbiayouth and adults are not made available for immigration interviewsrelated to immigration status without a criminal nexus . . . without acourt order. The policy shall include a disclosure to the inmate that allinformation provided to federal agents, including ICE agents, may beused in a criminal, immigration, deportation, or other collateralcases . . . .” 24• “No person shall be detained solely on the belief that he or she is notpresent legally in the United States or that he or she has committed a civilimmigration violation.” 25• “The Department of Corrections shall not send lists of foreign-born inmatesto the Department of Homeland Security.” 26dates that officials “shall not expend District resources responding to ICE inquiries or communicatingwith ICE regarding individuals’ incarceration status or release dates.” The legislation was signed byMayor Vincent Gray on August 8, 2012.21 D.C. Mayor’s Order No. 2011-174, 58 D.C. Reg. 009083 (Oct. 19, 2011).22 Id.23 Id.24 Id.25 Id.26 D.C. Mayor’s Order No. 2011-174, 58 D.C. Reg. 009083 (Oct. 19, 2011).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 6 11-JAN-13 11:44128 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW• “Law enforcement officers shall not make arrests solely based on administrativewarrants for arrest or removal entered by ICE into the NationalCrime Information Center database” of the FBI. 27Thus the Order makes plain that law enforcement will not ask about a person’simmigration status for deportation purposes unrelated to a criminal investigationand not ask about such status of crime victims or others who seek help or offercooperation to the police. The District will not send lists of foreign-born inmatesto the Department of Homeland Security, and the District will itself not detainnor honor federal detainers to hold persons for immigration enforcement unrelatedto criminal activity. 28 At the same time, the Order continues to permit cooperationin criminal investigations and anticipates that public safety agenciesshall continue other cooperation when required by law. But, as the Order emphaticallystates, “[e]nforcement of the civil provisions of the United States immigrationlaw is the responsibility of federal immigration officials.” 29 So, when itcomes to civil enforcement, the District simply will not assist. The Order adopts amodified “don’t ask, don’t tell” approach and is a narrowly drawn form of passiveresistance.III.THE CONSTITUTIONAL BASIS FOR LOCAL RESISTANCE TOFEDERAL REQUIREMENTSJust how far the federal government may regulate state and local governmentsdirectly—that is, tell them directly what they may or may not do—has been anissue in constitutional law for decades. The idea that the Tenth Amendment wasan independent limitation on federal power seemed to be rejected after the NewDeal period. 30 But in National League of Cities v. Usery, the Supreme Court, 5-4,resurrected the idea that the Tenth Amendment and principles of state sovereigntydid impose limits on Congress’ power to direct state and local governmen-27 Id.28 Issued pursuant to 8 C.F.R. § 287.7 (2011), “[a] detainer is a mechanism by which federalimmigration authorities may request that another law enforcement agency temporarily detain an alienin order to permit assumption of custody by the Department of Homeland Security,” United States v.Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009). “The detainer serves to advise the agency that ICEseeks custody of the defendant for the purpose of arresting and removing him or her.” State v.Fajardo-Santos, 973 A.2d 933, 937 (N.J. 2009). In practice, ICE officials use detainers to request that alocal law enforcement agency with custody of an individual believed to be an illegal alien notify thembefore releasing the individual. Immigration Detainers: A Comprehensive Look, IMMIGRATION POL-ICY CENTER (Feb. 17, 2010) http://immigrationpolicy.org/just-facts/immigration-detainers-comprehensive-look.And detainers extend the time that local law enforcement agencies can permissibly hold anindividual for forty-eight hours beyond their own jurisdiction. 8 C.F.R. § 287.7(d) (2011).29 D.C. Mayor’s Order No. 2011-174, 58 D.C. Reg. 009083 (Oct. 19, 2011).30 See United States v. Darby, 312 U.S. 100, 123 (1941) (Congress’ ability to regulate interstatecommerce is “unaffected by the Tenth Amendment”).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 7 11-JAN-13 11:44THREADING THE NEEDLE 129tal action. 31 The Usery majority struck down provisions of a federal law forcingstates to pay their own employees a minimum wage. Those provisions violatedstate sovereignty, the majority said, because they displaced “the States’ freedomto structure integral operations in areas of traditional governmental functions.” 32The majority viewed the minimum wage requirements as displacing the consideredpolicy choices of state officials regarding how they wanted to structure thedelivery of basic services to their residents.The Usery doctrine was short-lived. In Garcia v. San Antonio MetropolitanTransit Authority, 33 Usery was overruled. The Court now concluded, again 5-4, 34that it was unsound in principle and unworkable in practice to have judges decidehow far the federal government could go in imposing obligations on the states.Rather, if the states were unduly burdened by federal requirements, the remedywould lie in the political arena and be checked by the “built-in restraints that oursystem provides through state participation in federal governmental action.” 35The majority rejected the idea that there was any workable standard wherebycourts could decide, via some “predetermined notions of sovereign power” or“free standing conceptions of state sovereignty,” how much federal regulation ofstates was too much. The Garcia court essentially left state/federal relations tothe political process.But court-enforced state sovereignty limitations arose again in New York v.United States 36 and Printz v. United States. 37 In those cases the Court said thatCongress could not compel states to enact legislation to enforce a federal programor commandeer state executive officials to administer a federal program.Garcia was not overruled, but distinguished. The federal law in New York forcedstates to enact legislation; in Printz, the federal law forced states to administer afederal program applicable to their own citizens. In both cases the principle ofpolitical accountability was violated in that state and local governments wereforced to undertake official actions that were not of their own choosing, but forwhich they would be viewed as responsible by their citizens. Allowing the federalgovernment to commandeer the states into federal service, to render them asfield offices 38 for the administration of federal programs, violated the states’ “re-31 National League of Cities v. Usery, 426 U.S. 833 (1976).32 Id. at 852.33 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 531 (1985).34 The difference in outcome was the result of Justice Blackmun switching sides, having votedwith the majority in Usery but then voting with, and writing the opinion for, the overruling majority inGarcia.35 Garcia, 469 U.S. at 556.36 New York v. United States, 505 U.S. 144 (1992).37 Printz v. United States, 521 U.S. 898 (1997).38 Cf. Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993) (relyingon original understandings, author argues that, unlike state legislatures, state executive agenciesmay be made into field offices of the federal government).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 8 11-JAN-13 11:44130 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWsiduary and inviolable sovereignty.” 39 Thus the federal government may tellstates, as states, how they must behave, just like it may tell individuals how theymust behave. But the federal government may not hijack state legislative or executivemachinery to enforce federal law against the states’ own citizens.A. Reno v. CondonIn view of the results in these federalism cases, the question becomes: If theU.S. government requires states to collect and report information to federal officials,does that mandate fall on the permissible Garcia side of the line or on theimpermissible New York/Printz side of the line? Reno v. Condon provides agood, if not complete, answer. 40 In Reno, South Carolina challenged the constitutionalityof the Driver’s Privacy Protection Act (DPPA). 41 DPPA regulated andlargely prohibited the Department of Motor Vehicles of the several states fromdisclosing or selling, without consent, the personal information that drivers furnishedto obtain drivers’ licenses or register automobiles. The state’s main contentionwas that the law violated Tenth Amendment principles of federalismbecause it imposed on the state onerous day-to-day obligations to administer theAct’s “complex provisions.” 42 Conceding that administration of the Act “will requiretime and effort on the part of state employees,” the Court unanimouslyupheld the law as valid under Commerce Clause power. 43At the outset, the Court noted that if a driver’s personal information wasbought and sold, it was an article “in commerce,” and, therefore, was plainly asubject within Congress’ Commerce Clause authority. 44 The question, however,was whether the law unconstitutionally commandeered the state legislative processby requiring the state to enact a particular kind of law (New York) or unconstitutionallyconscripted state executive officers to administer or enforce a federalregulatory program against their own citizens (Printz). The answer was “no.”Under its Commerce Clause power, Congress may act directly on states andmay tell state and local governments what they may or may not do—requiringthem to pay their employees a minimum wage, or prohibiting them from pollutingthe air by burning coal in the state’s incinerator. Such laws are valid even ifcompliance may require the amendment of statutes, the adoption of regulations,39 Printz, 521 U.S. at 919.40 Reno v. Condon, 528 U.S. 141 (2000). See also Richard T. Cosgrove, Comment, Reno v.Condon: The Supreme Court Takes a Right Turn in its Tenth Amendment Jurisprudence by Upholdingthe Constitutionality of the Driver’s Privacy Protection Act, 68 FORDHAM L. REV. 2543 (2000) (morefully discussing the case).41 18 U.S.C. §§ 2721-25 (2006).42 Reno, 528 U.S. at 150.43 Id.44 Id. at 143.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 9 11-JAN-13 11:44THREADING THE NEEDLE 131or the devotion of substantial state resources. 45 The test of validity is not whethera state must use its machinery to comply with a federal mandate imposed upon it,but whether the federal law requires a state in its sovereign capacity to regulateits own citizens. The DPPA did not run afoul of the principles of New York andPrintz because it regulated the state directly by telling it how to handle its DMVdatabases. It did not require the state to regulate its own citizens.And not only did the DPPA tell the state that it could not disclose or sellcertain information, it also required disclosure under certain circumstances. TheCourt noted, with apparent approval, that the DPPA required disclosure of personalinformation for use in connection with motor vehicle safety, emissions, andproduct recalls to carry out the purposes of the federal Anti Car Theft Act of1992, the Automobile Information Disclosure Act, and the Clean Air Act. 46 Thispart of the law was not directly at issue in Reno, but bears directly upon whetherthe federal government may mandate that information the state has acquired ona person’s immigration status be disclosed to federal authorities. Since the requireddisclosure under the DPPA regulated the state directly and did not requirethe state to regulate its own citizens, that part of the law, too, would have beenheld to be valid.IV. THE NEW YORK CITY APPROACH AND CITY OF NEW YORK V.UNITED STATESAn interesting wrinkle in the noncooperation issue arose in City of New Yorkv. United States. 47 The question presented in that case was whether federal lawcould prevent a state or local jurisdiction from telling its own employees that theymay not give federal authorities information about the immigration status of anyalien. In 1989, New York City’s mayor issued Executive Order No. 124, whichprohibited city employees from providing information about any person’s immigrationstatus to federal immigration authorities. 48 There were a few exemptions,most notably, permitting disclosure if the employee’s agency was required by lawto disclose such information, and directing law enforcement agencies to “continueto cooperate with federal authorities in investigating and apprehendingaliens suspected of criminal activity.” 49 The Executive Order soon collided with a45 South Carolina v. Baker, 485 U.S. 505, 514-15 (1988) (upholding federal statute prohibitingstates from issuing unregistered bonds and noting that “[t]hat a State wishing to engage in certainactivity must take administrative and sometimes legislative action to comply with federal standardsregulating that activity is a commonplace that presents no constitutional defect”). See also Garcia v.San Antonio Metropolitan Transit Authority, 469 U.S. 531 (1985) (federal statute requiring statetransportation agency to pay its employees minimum wage).46 Reno, 528 U.S. at 145.47 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).48 Id. at 31.49 Id. at 31, n.1.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 10 11-JAN-13 11:44132 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWfederal law passed in 1996 that specifically prohibited any government entity orofficial from restricting the exchange of information with the INS about the immigrationor citizen status of any individual or the maintenance of suchinformation.Nine days after the federal law was signed by President Clinton, New YorkCity brought a declaratory judgment action claiming that the federal law wasfacially unconstitutional and that the N.Y.C. Mayor’s Order remained valid. 50The city, relying chiefly on the Tenth Amendment and state sovereignty principles,said that the federal law improperly interfered with local government controlover the use of information acquired in the course of its official business andwith the state’s ability to control its own workforce with respect to handling confidentialinformation that employees acquire in their official capacities. 51 The citypressed essentially two arguments, both of which were rejected by the court ofappeals. 52First, the city argued that its sovereign power included the power not to participatein federal regulatory programs and that the N.Y.C. Mayor’s Order not todisclose information to the INS facilitated that power. The city relied on Printz tosay that it had the right to not participate in a federal regulatory program and toforbid voluntary cooperation by its employees in a federal program. The court ofappeals properly viewed this as an overbroad reading of Printz. Printz drew theline at compelling states to participate in the actual administration of a federalprogram or in the actual enforcement of federal law or policies against a state’sown citizens. As the court noted, the federal law at issue did not “directly compelstates or localities to require or prohibit anything.” 53 Rather, the federal law prohibited“state and local governmental entities or officials only from directly restrictingthe voluntary exchange of immigration information with the INS.” 54 Thecourt noted the dire consequences of a broad based claim of non-cooperation,namely deadlock and one sovereign holding the other hostage. 55 “A system ofdual sovereignties cannot work without informed, extensive, and cooperative interactionof a voluntary nature between sovereign systems” and thus “states donot retain under the Tenth Amendment an untrammeled right to forbid all voluntarycooperation by state or local officials with particular federal programs.” 56The court acknowledged that it might be difficult to draw a precise line betweenan invalid Printz-violative federal action that would conscript states into the ac-50 City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997), aff’d, 179 F.3d 29 (2d.Cir. 1999).51 Id. at 797.52 City of New York, 179 F.3d at 37.53 Id. at 35.54 Id.55 Id.56 Id.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 11 11-JAN-13 11:44THREADING THE NEEDLE 133tual administration of federal programs and valid federal action that prohibitedstates from forcing their employees to engage in passive resistance against particularfederal programs. But it was clear to the court that the federal law prohibitingrestrictions on the voluntary disclosure of immigration information fell on thevalid side of the line and could easily withstand the city’s facial challenge. 57The city’s second argument was that the federal prohibition on restricting voluntarydisclosure of information substantially interfered with a local government’scontrol of official information and of its own employees with respect tothat information. The court expressed sympathy with the city’s burden argument.It noted that, “[t]he obtaining of pertinent information, which is essential to theperformance of a wide variety of state and local governmental functions, may insome cases be difficult or impossible if some expectation of confidentiality is notpreserved.” 58 Seemingly contrary to the dictates of Garcia, the court then engagedin a kind of balancing test, weighing the federal law’s burden on the cityagainst the harm to federal policies that would result from the city’s non-cooperation.The court concluded that because the city’s policy did not protect confidentialinformation generally but surely operated to reduce the effectiveness of afederal policy, the federal law was valid.Yet, despite the court’s flirtation with a Garcia-prohibited burden analysis,City of New York, did not directly resolve the issue of whether states could beforced to disclose information and a fortiori did not decide whether states couldbe forced to collect information in the first instance. Moreover, City of New Yorkleft open the possibility that a well-crafted non-disclosure directive could be insulatedfrom federal interference if it focused on protecting confidential informationgenerally. The court recognized that acquiring and preserving theconfidentiality of information is essential to the state’s ability to perform its functions,and that directing employees not to disclose information is a vital tool toachieve the state’s goals. Indeed, the court seemed to acknowledge the validity ofthe city’s argument that non-disclosure of immigration status and the assuranceof non-disclosure were necessary to provide services and to promote the preventionand reporting of crimes by undocumented immigrants. But the city declinedthe court’s invitation to show how non-disclosure of immigrant status was part ofnon-disclosure rules more generally and how the Order could be viewed as moreof an explanatory measure or special point of emphasis to reassure aliens that theinformation they disclose would be treated confidentially, even with respect tothe INS. So, faced with an Executive Order that was targeted at preventing voluntarydisclosures only to the INS, and not a confidentiality policy operating57 City of New York, 179 F.3d at 35. See also United States v. Salerno, 481 U.S. 739, 745 (1987)(“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully,since the challenger must establish that no set of circumstances exists under which the Actwould be valid.”).58 City of New York, 179 F.3d at 36.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 12 11-JAN-13 11:44134 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWmore generally, and in the context of a facial challenge to the federal law thatprohibited restricting such voluntary disclosures, the Second Circuit court upheldthe federal law. 59The Second Circuit case thus raised but left open a further question: Does it orshould it matter why a local jurisdiction is refusing to cooperate with the federalgovernment? Following its loss in the Second Circuit, New York City remainedconcerned that the ready disclosure of immigration status to the INS would diminishthe trust of the immigrant community and thereby mean fear of reportingcrimes and also mean the loss of services to adults and children in need. The citysearched for a new approach to replace its reporting prohibition and eventuallyadopted two new Executive Orders. The first, Executive Order No. 34, 60 put inplace a “don’t ask” policy whereby city officials and employees, except for lawenforcement officers acting in furtherance of law enforcement operations, areprohibited from inquiring into a person’s immigration status. 61 There are exceptionsfor obtaining such information if relevant to a person’s eligibility for a cityservice or if inquiry into one’s status is otherwise required by law. Moreover,Order No. 34 specifically states that police and corrections officers “shall continueto cooperate with federal authorities in investigating and apprehendingaliens suspected of criminal activity.” 62 Furthermore, as later amended, the Orderprohibits law enforcement officers from asking about a person’s immigrationstatus unless investigating illegal activity other than one’s status as an undocumentedalien. 63The second, Executive Order No. 41, 64 adopted a new “don’t tell” policy thattook the hint offered by the Second Circuit and folded non-disclosure of immigrantstatus into a more general protection of confidential information. 65 Confidentialinformation is defined as any information relating to an individual’ssexual orientation, status as a sexual assault victim or witness to a crime, receiptof public assistance, immigration status, or income tax records. The exemptionfor disclosure of immigration status includes disclosure concerning a person suspectedof illegal activity, other than mere status as an undocumented alien, wherethe disclosure is necessary to apprehend such person or where disclosure is necessaryto further an investigation of potential terrorist activity. 6659 Id. at 37.60 City of N.Y. Exec. Order No. 34 (May 13, 2003).61 Id.62 Id.63 Id.64 City of N.Y. Exec. Order No. 41 (Sept. 17, 2003).65 Id. (citing the impossibility of obtaining pertinent information “essential to the performanceof a wide variety of governmental functions” without some expectation of confidentiality, the Orderprovides that, with some exceptions, no city officer or employee may disclose confidentialinformation).66 Id.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 13 11-JAN-13 11:44THREADING THE NEEDLE 135But the question remains: Could the federal government thwart New YorkCity yet again by enacting legislation requiring the city (or any state or local jurisdiction)to collect information about the immigration status of all persons seekingcity services or encountered by police authorities and/or that it must disclose allinformation of immigrant status which comes into its possession in an officialway?V. FORCED DISCLOSURE OF INFORMATIONAs to forced disclosure, despite the Second Circuit’s intimation that the citycould insulate revelation of immigration status if part of a general confidentialitypolicy, Supreme Court case law actually points in the opposite direction. To seewhy, we return to Garcia, 67 Printz, 68 and Reno. 69Garcia stands for the proposition that the federal government, acting withinthe subject matter of its authority, can tell not only individuals but also state andlocal governments what to do or what not to do. It can, as in Garcia, tell state andlocal governments to pay their employees a minimum wage. And the federal governmentmay do this without reference to the costs associated with the directiveor the displacement of state policy choices. 70 Those considerations are for Congressto weigh, not for the Court to evaluate, and thus Garcia overruled Usery,which held to the contrary. 71Printz did not undermine Garcia’s basic principle but instead held that thefederal government may not conscript state and local governments to enforce federalprograms against their own citizens. Indeed, the Printz majority distinguishedsituations where the federal government simply required state and localgovernments to furnish information to the federal government: “[federal laws]which require only the provision of information to the federal government, donot involve the precise issue before us here, which is the forced participation ofthe States’ executive in the actual administration of a federal program.” 72 Again,the difference is directly related to the principle of political accountability. Thatis, if the federal government forces a state or local government to administer afederal program, the state is put in the position of “taking the blame” for theburdens and defects of the federal program. It is the state official, not a federalofficial, who, as in the Printz case, stands between a gun purchaser and his immediatepossession of a gun. Justice O’Connor drew a similar distinction in herPrintz concurrence:67 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).68 Printz v. United States, 521 U.S. 898 (1997).69 Reno v. Condon, 528 U.S. 141 (2000).70 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).71 Garcia, 469 U.S. at 531.72 Printz, 521 U.S. at 918.

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 14 11-JAN-13 11:44136 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthe Court appropriately refrains from deciding whether other purely ministerialreporting requirements imposed by Congress on state and local authorities. . . are similarly invalid. . . . The provisions invalidated here,however, which directly compel state officials to administer a federal regulatoryprogram, utterly fail to adhere to the design and structure of ourconstitutional scheme. 73A state’s disclosure of information to the federal government does not requirethat the state act upon or against its own citizens.Reno is consistent. The Supreme Court upheld a federal law restricting astate’s release of personal driver’s license information (and impliedly the disclosureof DMV information to the federal government) because the law regulatedstate activities and did not aim “to control or influence the manner in whichStates regulate private parties.” 74And indeed there are many federal statutes that require state and local governmentsto report information within their control. These “ministerial” reportingrequirements, as Justice O’Connor referred to them, 75 range fromenvironmental reporting statutes to reports of missing children and emergencyevacuation plans. 76 Many reporting requirements come as conditions attached tofederal funding, but some are straightforward regulatory obligations.Despite these strong indications that the federal government would not violatestate sovereignty principles by requiring states simply to furnish information alreadywithin their possession, it remains true that the Supreme Court has notsquarely ruled on the question. The one argument that could invalidate forceddisclosure, at least under some circumstances, would require a substantial modificationor even overruling of Garcia. That argument, seemingly embraced by theSecond Circuit, would be that forced disclosure in some cases could impose sucha heavy burden on state operations that the degree of burden itself would violateprinciples of dual sovereignty. In the context of forced disclosure of immigrationstatus, opponents of such a policy argue that states would be excessively burdenedbecause they could not assure effective law enforcement where a sizableportion of their population would refuse to come forward to report crimes theyhave suffered or witnessed. Similarly, states’ health and safety operations andpolicies would be burdened, particularly as to children, if persons in need weretoo fearful to seek government assistance with food, housing, or shelter. And if73 Id. at 936.74 Reno, 528 U.S. at 150.75 Thomas E. Castleton, A Matter of Expectations: Interpreting the Statutory Preemption of LocalAssistance to Federal Firearms Regulators, 15 ALASKA L. REV. 345, 350 (1998) (“JusticeO’Connor’s invocation of the missing children statute fails to provide the exactness necessary to definea coherent approach to the application of dual sovereignty principles.”).76 See, e.g., 42 U.S.C. §§ 5779(a) (missing children), 6991(a) (environmental reporting), and11001 (emergency evacuation plans).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 15 11-JAN-13 11:44THREADING THE NEEDLE 137the protection of such information were nested in a general protection against thedisclosure of confidential information, as the Second Circuit suggested and asNew York City has put in place, then forced disclosure could be characterized aseven more burdensome on a state’s ability to carry out its functions.But reviving a federalism burden analysis would put the Court back into thestandardless evaluation of how much interference with a state’s functions wouldbe too much, a role for the Court that Garcia found unworkable in practice andunsound in principle. Just how burdensome to states is the disclosure of immigrationstatus? How great is the federal need to have such information? Howequipped are the courts to assign weights to the respective interests and thenstrike the “right” balance, whatever that may be? 77It is quite unclear if the Court has the appetite to revive a Usery-type analysisand reenter this quagmire. It is especially unclear whether the court would bewilling to do so in the context of Congress exercising its plenary power over immigrationand nationality, an area where the Court has shown unusual deferenceeven with respect to individual liberties. It is well accepted that the federal governmenthas plenary authority over immigration and naturalization and that itsactions in this arena are judged under the most deferential rational basis standard.78 Of course, the broad scope of a federal power does not automaticallypermit the use of all means to exercise it, but this is an area where courts havetrod extraordinarily lightly. 7977 One commentator recommends a balancing test as steering between the rational basis testapplied to spending power legislation and what the author terms (inaccurately) the strict scrutiny testof Printz (Printz is a categorical rule, not a heightened balancing test). Huyen Pham, The ConstitutionalRight Not To Cooperate? Local Sovereignty and The Federal Immigration Power, 74 U. CIN. L.REV. 1373, 1378 (2006). The author states: “[t]his review would essentially be a balancing test: a courtwould weigh the local sovereign interest in self-regulation against the federal interest in mandatorycooperation. Because this intermediate review gives voice to both local and federal sovereign interests,it is more likely to reach the correct federalism result.” Id. Other commentators have madesimilar suggestions. See, e.g., Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz andPrinciple?, 111 HARV. L. REV. 2180, 2257 (1998) (suggesting a deferential, flexible, multi-factor approachto evaluating congressional mandates to state and local governments). All that this does, however,is dress up political and policy judgments as logical calculus and transfer choices from thepolitical arena to judges. Indeed, even justices most eager to find federalism limits on congressionalpower question the effectiveness of balancing tests over categorical rules. Printz, 521 U.S. at 928 (“animprecise barrier against federal intrusion upon state authority is not likely to be an effective one”).78 Matthews v. Diaz, 426 U.S. 67, 83 (1976) (upholding discrimination against aliens by denyingfederal Medicaid benefits under extremely deferential rational basis test).79 Under Article I, Section 8 of the Constitution, Congress is empowered “to establish an uniformRule of Naturalization,” pursuant to which Congress has been granted broad power to regulateimmigration and citizenship. As the Supreme Court stated in Fiallo v. Bell, “over no conceivablesubject is the legislative power of Congress more complete than it is over the admission of aliens.” 430U.S. 787, 792 (1977). Congress’s broad power over immigration and naturalization has led to especiallyvigorous preemption of state and local laws touching on this area. See ERWIN CHEMERINSKY,CONSTITUTIONAL LAW §5.2.3 (4th Ed. 2011). Even when Congress chooses to discriminate againstaliens, its actions are judged by whether they are “wholly irrational,” and not whether, as with state

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 16 11-JAN-13 11:44138 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWVI.FORCED COLLECTION OF INFORMATION AND DETAINERSEven if state and local governments can be required to disclose informationalready within their official possession, and even if they can be prohibited frompreventing their employees from disclosing such information, will sovereigntyprinciples protect the states from being forced to collect information? The answerto that appears to be “yes.” In other words, the states may have to tell, but theydon’t have to ask.In collecting immigration status information from residents, state and localgovernments would be directly pressed into service to enforce federal immigrationlaws. They would essentially stand on the same footing as the sheriffs inPrintz who had to receive applications and search their files to see if groundsexisted to deny a gun permit. The local officials would be seen as responsible forcollecting this information and as being partners in pursuing the removal of undocumentedimmigrants. The principle of political accountability would be as atrisk as it was in Printz, and the state or local government would be directly actingagainst its citizens, not simply conforming its own practices to a federal mandate.So, although the federal government has not yet required states to collect immigrationstatus information, local refusals to do so are a preemptive strike thatstands on sound constitutional footing.The same analysis applies, with even greater force, to detainers or holds onpersons in custody to make them available to ICE either for questioning or transferof custody. Here again the federal government has not (yet) mandated thatlocal governments honor a request for an immigration hold, but local governmentshave preemptively begun to refuse to honor detainer requests. 80An immigration detainer is an official request from immigration authoritiessent to a law enforcement agency asking that the agency notify federal authoritiesprior to releasing an individual from custody. When an individual is arrested andbooked, a local jurisdiction may request FBI fingerprint checks, sending informationthat is then shared with the Department of Homeland Security. The Departmentof Homeland Security, through ICE, may then send a detainer request tothe local agency so that ICE can either interview an individual to determinewhether he or she is subject to deportation or take the person into custody. Somelocal jurisdictions work directly with ICE as deputized enforcement agents 81 andmay conduct interviews related to immigration on behalf of ICE. In any case, theand local discrimination against aliens, the action meets the test of strict scrutiny. Matthews, 426 U.S.at 83.80 See, e.g., D.C. Mayor’s Order No. 2011-174, 58 D.C. Reg. 009083 (Oct. 19, 2011). See alsoRESTORING COMMUNITY, supra note 4 (noting that San Francisco, California, Taos, New Mexico, andSan Miguel, New Mexico have all adopted policies limiting their participation with immigrationdetainers).81 Illegal Immigration Reform and Immigrant Responsibility Act § 287(g), 8 U.S.C.§ 1357(g)(1) (2006).R

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 17 11-JAN-13 11:44THREADING THE NEEDLE 139detainer, if recognized by the local law enforcement agency, permits a person tobe held up to forty-eight hours beyond the time he or she would otherwise beentitled to be released. Quite obviously, if local agencies were forced to honordetainers—to work with immigration authorities to keep individuals in custodyand present them to ICE—the machinery of the local government would, quitedramatically, be pressed into enforcement of a federal program. Police officialswould be more directly acting, and perceived as more directly acting, against theirown citizens than the sheriffs doing gun background checks in Printz. Such compelledparticipation would violate principles of state sovereignty and could constitutionallybe resisted by local jurisdictions.In sum, then, the D.C. Mayor’s Order is a deft and likely-to-be-successful separationof local authority from federal immigration enforcement. The Order doesnot mandate employee non-cooperation (as did New York City’s Executive OrderNo. 124), but it does limit employee acquisition of immigration information,adopts a policy of non-arrest solely for immigration violations, and refuses cooperationin presenting or holding persons pursuant to ICE detainers—all of whichare valid. The only flaw in the Order might arise if Congress decided to requirethe disclosure of information, in which case the Order’s direction that the Departmentof Corrections “not send lists of foreign-born inmates to the Department ofHomeland Security” 82 might be in jeopardy. As discussed, forced disclosure ofinformation already in state or local government files would be permissible. Yeteven if the federal government moved to such a position, the local authoritymight still benefit from passive resistance. Inertia is a powerful force, and if federalgovernment initiation of an action for compliance is required to reverse alocal policy of nondisclosure, the nondisclosure policy might be left undisturbedfor a long time.VII.A DOSE OF REALITY AND THE LIMITS OF NON-COOPERATION: THESPENDING POWER, LOCAL GOVERNMENT’S RELIANCE ON FEDERALSERVICES, AND, AT LEAST AS TO THE DISTRICT OFCOLUMBIA, THE DISTRICT CLAUSEEven though state and local governments may be forced to turn over immigrationinformation within their control, they may refuse to assist the federal governmentin the enforcement of immigration laws by not collecting immigrationinformation or not using their law enforcement personnel to arrest or hold personssought by immigration authorities. But even this level of non-cooperationmay be overcome if the federal government were to use all of its powers to “encourage”local governments to give assistance. Most prominently, the federalgovernment may induce cooperation through its spending power by conditioningawards of money on such cooperation. Some bills have been introduced in Con-82 D.C. Mayor’s Order No. 2011-174, 58 D.C. Reg. 009083 (Oct. 19, 2011).

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 18 11-JAN-13 11:44140 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWgress to pursue this strategy 83 and, were they to pass, the Court’s highly deferentialapproach to Congress’ spending power 84 would insure that they would beupheld.In addition, state and local law enforcement authorities are unlikely to forgothe benefits of relying on the FBI to perform fingerprint checks of persons arrestedfor crimes. This might be an option with respect to those arrested for minorcrimes; but, even in those cases, forgoing the FBI check is probably a poorpolicy choice. Many a dangerous criminal have been caught after arrests for aminor crime. Once the information is turned over to the FBI and local governmentavails itself of this federal service, the information is in the hands of thefederal government. It is a transfer of data to reap a federal service, and thefederal government, unless restrained by Congress, is then free to use it for otherpurposes.And finally, with respect to the District of Columbia, the Mayor’s Order,though nicely threading the needle of permissible non-cooperation, could readilyand specifically be overcome by congressional legislation. Under Article I, Congressis the legislative authority of the District and although the District has beengranted various powers of “home rule,” the ultimate legislative authority for theDistrict is Congress.CONCLUSIONSome local communities have struggled with the consequences of their forcedor willing participation in increasingly aggressive federal immigration policies.Those that now wish to comply with the law, avoid compromising criminal lawenforcement, and yet separate themselves from federal roundups and removalactions against their undocumented residents will find the Mayor’s Order an exampleof how to proceed. 85 Of course, it must be acknowledged that the Order’sapproach is quite modest, as inevitably it must be. At the end of the day, thefederal government exerts broad authority over immigrants and has many toolsto enlist state and local governments in its efforts.83 E.g., Clear Law Enforcement for Criminal Alien Removal Act, H.R. 2671, 108th Cong.(2003).84 See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987) (finding limits on Congress’s spendingpower, but holding that conditioning of federal highway funds on a state having a particular minimumdrinking age did not violate those limits).85 As a cautionary note, it must always be remembered that noncompliance with federal commandsis a double-edged sword. Although we may cheer when local governments resist federal requirementsin enforcing immigration policy, we would probably think differently aboutnoncompliance in other areas, such as the enforcement of civil rights statutes, environmental-protectionlaws, and health and safety requirements.