Monday, March 23, 2015

Defining Corruption in America: A History

This guest post was authored by Marguerite Most, Reference Librarian and Senior Lecturing Fellow.

The library's National Library Week speaker for 2015 is Zephyr Teachout, Duke Law '99. Teachout, an Associate Professor at Fordham Law School, will talk about her latest book Corruption in America: From Benjamin Franklin's Snuffbox to Citizens United on Tuesday, March 24 in room 3041. This event is co-sponsored by the Duke Program in Public Law, the student branch of the American Constitution Society, and the Goodson Law Library. The event is open to the public.

In 2014, when Teachout sought the Democratic Party nomination for Governor of New York against incumbent Andrew Cuomo, she captured over 34% of the primary vote in a campaign with a central focus on anti-government corruption. Teachout supports public financing of elections and limits on corporate donors, and explores these issues, as well as the abuse of political power and the history of campaign finance reform in her recent book.

Zephyr Teachout defines corruption as an act or system that leads to excessive private interests in the exercise of public power. In her book she aims to awaken citizens and the courts to what she calls the anti-corruption principle, and to how this principle played a major role in the concerns of our nation's founders as they struggled with the writing and adoption of our Constitution. She surveys state and federal legislation and court decisions dealing with corruption from the nation's founding to the present. And she tells stories from history of abuse of political power for private gain – stories that have influenced the thinking and actions of our legislative branches and courts.

The first attempt to regulate campaign finance came in 1867 when Congress passed the Naval Appropriations Bill, which prohibited government employees from "shaking down" yard workers. More anti-corruption laws followed. The 1881 assassination of President James Garfield by an office seeker, who believed he had been promised a job in the Garfield administration, led to the passage of a "merit system" to replace the old "patronage" system for government posts. In a 1905 speech to Congress, President Theodore Roosevelt proposed that corporations be forbidden by law from contributing "to any political committee or for any political purpose." Two years later Roosevelt signed the Tillman Act, prohibiting money contributions to national campaigns by corporations and national banks. In the years between 1907 and 1966, Congress enacted other campaign finance laws to limit the disproportionate political influence of wealthy individuals and special interest groups and to regulate individual contributions in federal campaigns. The power of enforcement, however, was also with Congress and was routinely ignored.

In the years leading up to and during the Vietnam War, growing anger over the war and citizen advocacy groups such as Common Cause kept campaign finance reform in the public eye, and in 1972 the Federal Election Campaign Act (FECA) was passed. The law tightened disclosure requirements for federal candidates, political parties and political action committees (PACs). Following reports of abuses in the 1972 presidential campaign, FECA amendments limited contributions by individuals; 1974 amendments established the Federal Election Commission (FEC), an independent agency. Additional amendments followed a constitutional challenge in the Supreme Court case Buckley v. Valeo. The 2002 Bipartisan Campaign Reform Act of 2002 (BCRA) (the McCain-Feingold Act) banned national parties from raising or spending nonfederal funds (so-called "soft money"), restricted issue ads, and increased contribution limits.

Two recent Supreme Court decisions, Citizens United v. FEC & and McCutcheon v. FEC, have eroded restrictions on campaign finance spending. In Citizens United, the Court ruled that independent political expenditures by corporations and unions are protected under the First Amendment and are not subject to government restriction. The Court struck down a ban on campaign expenditures by corporations and unions – a ban that applied to non-profit corporations like Planned Parenthood and the National Rifle Association, as well as for-profit corporations like General Motors and Microsoft.

In McCutcheon, the Court struck down aggregate limits on the amount an individual may contribute during a two-year period to federal candidates, parties and political action committees combined, concluding instead that "they intrude without justification on a citizen's ability to exercise 'the most fundamental First Amendment activities.'" In a plurality opinion, Chief Justice Roberts wrote: "Congress may target only a specific type of corruption—'quid pro quo' corruption ..." and that "spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to quid pro quo corruption."

The FEC website provides links to these cases, to campaign laws, to regulations, to an Election Law Library of research materials and to a Campaign Finance Disclosure Portal with "Hot Topics" such as Super PACs and maps showing 2014 House and Senate election expenditures. In addition to court decisions, amendments to the BCRA and regulations implemented by the FEC continue to change campaign finance law. The website also provides a resource for help with reporting and compliance under current law.

As Teachout notes, corruption was a major concern of our nation's founding fathers, a focus of debate during the Constitutional Convention of 1789, and a topic in the popular press in 1789. Headlines about corruption continue to appear in the popular press. In 2014 former mayors of Detroit and New Orleans and former Virginia governor Bob McDonnell were charged or convicted of political malfeasance. A 2013 New York Times article declared, "corruption is a growing business."

The current display in the Riddick Rare Book and Special Collections Room highlights Teachout and her book, as well as an article about her in the Duke Magazine. The display also features books about corruption in politics yesterday and today and several books from the Library's rare book collection, including a rare volume of Spirit of Laws by Charles de Montesquieu. Montesquieu's Spirit of Laws was well known to the drafters of the Constitution. Corruption and the abuse of power were themes in all his discussions from commercial laws to criminal laws. He argued that the executive, legislative, and judicial functions of government should be assigned to different bodies to prevent any one branch of government from overpowering the others. His theories about the separation of powers are said to have had an enormous impact on the framers of the Constitution.

In his blog "The Original Meaning of Corruption," Harvard Law Professor Lawrence Lessig notes that the framers spoke about corruption not only as "quid pro quo"corruption, but also in describing "improper dependence." A blog identifying uses of the word in records of the framers sets out each use by founder’s name and links to a digital copy of the source. Teachout explains in the introduction to her book, "My passion for the book springs out of my own civic patriotism. To quote James Madison, 'My wish is that the national legislature be as uncorrupt as possible.'"

And as Teachout notes – the debate continues. Today the potential payoff for abuse of political position is not the diamond-decorated snuffbox presented to Benjamin Franklin when he returned to America from Paris, but rather new snuff boxes – for example, consider the revolving doors through which some members of Congress and staffers move on to lucrative positions as high-paid lobbyists. Ask North Carolina State Senator Floyd McKissick his view on how donors and money have the potential to change elections. Or read his June 11, 2014 testimony to the Senate Judiciary Committee during a hearing held to discuss a proposed amendment addressing the Court’s ruling in Citizens United.

The debate continues.

--Marguerite Most, Reference Librarian and Senior Lecturing Fellow

Friday, March 20, 2015

The International Incident of the "I'm Alone"

Image of the I'm Alone from Newfoundland Shipwrecks
On this date in 1929, the U.S. Coast Guard spotted a Canadian vessel approximately 10½ miles off the coast of Louisiana. The I'm Alone was a notorious liquor-smuggling schooner, whose history was well known to the Coast Guard's Wolcott crew. After the I'm Alone crew ignored orders to stop for inspection, the Wolcott fired two warning shots (one of which pierced the Canadian ship's sails), and then pursued the ship for two more days in open water. A second Coast Guard vessel, the Dexter, joined the chase on March 22, lending additional firepower since the Wolcott's gun had jammed after its second warning shot. The Dexter's commanding officer again ordered the I'm Alone to stop, warning that the Coast Guard would sink the ship if crew did not comply.

According to State Department correspondence, the master of the I'm Alone responded "that he would be sunk rather than stop," and allegedly "waved a revolver in a threatening manner indicating that he would resist forcibly any attempt to board his vessel." The Dexter fired more than a dozen shots, piercing the ship's rigging and hull. The I'm Alone sank at 9:05 a.m. on March 22, 1929; one crew member drowned before the Coast Guard could recover him from the water.

The sinking of the I'm Alone caused a six-year diplomatic incident. While international law did allow hot pursuit to continue into the open seas, the government of Canada disputed that the I'm Alone ever ventured close enough to U.S. territorial waters to warrant Coast Guard involvement. Specifically, a 1924 treaty, Convention between the United States and Great Britain for the Prevention of Smuggling of Intoxicating Liquors, 43 Stat. 1761, gave the Coast Guard the right to seize ships suspected of smuggling alcohol into the Prohibition-era U.S., but only if the offending ship was within one hour's distance from the coastline. U.S. Attorney General William Mitchell examined the evidence and reassured Secretary of State Stimson that the Coast Guard's pursuit and sinking of the I'm Alone was justified.

The two governments agreed to submit the matter to international arbitration, with Supreme Court Justice Willis Van Devanter serving as arbiter for the U.S., and Supreme Court of Canada Chief Justice Lyman Poore Duff appointed by Canada. The two Commissioners examined briefs and affidavits from each party (including an engaging detour into decrypted telegrams which were related to the liquor-smuggling operations of I'm Alone, below) and submitted a joint interim report in June 1933. The Commissioners held that the U.S. might "use necessary and reasonable force" to apprehend a suspected smuggling vessel, but that "the admittedly intentional sinking of the suspected vessel was not justified by anything in the Convention." The final report, filed in January 1935, added that the sinking was likewise unjustified "by any principle of international law." 

Decrypted telegram related to I'm Alone operations

The Commissioners also determined that the Canadian-registered ship had been owned and operated at the time of its destruction by primarily United States citizens, factoring into its recommendation that the United States pay nothing to Canada for the cost of the vessel or its cargo. However, the Commission did recommend that the United States formally acknowledge its wrongdoing in sinking the ship with an apology to the government of Canada and a $25,000 payment. Additional compensation was recommended for the I'm Alone captain and selected crew members, including the family of the crewman who drowned during the Coast Guard recovery operation. (Read the reports, reprinted in the United Nations publication Reports of International Arbitral Awards.)

For more information about the fascinating history of the I'm Alone, and its impact on international law, start with Joseph Anthony Ricci's "All Necessary Force": The Coast Guard and the Sinking of the Rum Runner the "I'm Alone", a master's thesis in history submitted to the University of New Orleans in 2011. Ricci follows the tale of the I'm Alone all the way to the eventual sinking of the Dexter, the Coast Guard vessel whose shots had destroyed the Canadian schooner. Renamed the MV Buccaneer after its decommissioning from the Coast Guard, the former Dexter found new life as a party boat on Lake Michigan before a scuba diving company turned it into an undersea attraction in 2010 (see video of the sinking).

Primary documents from the I'm Alone arbitration can be found in the Goodson Law Library’s Documents collection under the title "I'm Alone" Case; this State Department publication collection has also been digitized in HeinOnline's World Trials Library. Legal analysis of the arbitration can be found in Index to Legal Periodicals Retrospective, or HeinOnline's law journal and foreign/international law libraries. For help with locating historical background on the I'm Alone case, or for information on international arbitration more generally, be sure to Ask a Librarian.

Sunday, March 15, 2015

Tax Time: Finding Assistance

If you drive a car, I'll tax the street
If you try to sit, I'll tax your seat
If you get too cold, I'll tax the heat
If you take a walk, I'll tax your feet

--The Beatles, Taxman, on Revolver (1966)

With just a month left until tax day (Wednesday, April 15), it's time to get serious about completing 2014 federal and state tax returns. This is the first year in which all Americans are required to maintain health insurance under the 2010 Affordable Care Act (see TurboTax overview of the most recent changes), and your once-familiar tax forms may look a bit different as a result. Although the Goodson Law Library staff cannot answer substantive tax-related questions (such as "what forms do I need to file?" or help with interpreting the form instructions), the Goodson Blogson can recommend some starting places for finding tax assistance.

 Before you pay for a professional tax preparation service, consider whether you qualify for the IRS Free File program. This service links qualifying taxpayers to free electronic federal tax preparation service (state tax preparation may also be available in some cases). Note that your adjusted gross income must be $60,000 or less in order to take full advantage of the Free File software. However, those with higher income can still use Free File Fillable Forms to fill out their federal returns.

You might also qualify for assistance from VITA (Volunteer Income Tax Assistance), a program in which trained volunteers assist with preparation for low- to moderate-income taxpayers, as well as senior citizens. Duke Law's VITA chapter has posted their calendar for spring 2015; please note that advance appointments are strongly encouraged. For readers outside the Durham area, the IRS maintains a list of VITA sites around the country.

If your taxes turn out to be too complicated, you might need to hire a professional. The IRS has tips for choosing a tax professional as well as instructions for filing complaints if needed.

 Good luck—and for the perpetual procrastinators, there's always an automatic extension. However, filing an extension doesn't include an extension of time to pay estimated taxes! (IRS Free File can be used by taxpayers at all income levels to file an extension.)

More information about federal tax law can be found in the Goodson Law Library's research guide to Federal Tax; for help locating these materials, be sure to Ask a Librarian.

Monday, March 9, 2015

Women on the Bench

Today, approximately one-third of active federal judges are women (source: Biographical Directory of Federal Judges, 1789-present). But it took nearly a century and a half of United States history for the first female federal judges to break the judicial glass ceiling. In 1928, President Calvin Coolidge appointed Genevieve Rose Cline to the U.S. Customs Court (renamed the U.S. Court of International Trade in 1980). It would be six more years before a woman joined an Article III court, when President Franklin Delano Roosevelt nominated Florence Ellinwood Allen to the United States Court of Appeals for the Sixth Circuit.

In honor of Women's History Month, the U.S. Courts website profiled these and other history-making women on the federal bench. Three of the federal judges covered were also highlighted 20 years ago in remarks by U.S. Supreme Court Justice Ruth Bader Ginsburg, Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change President Carter Wrought (with Laura W. Brill). The piece details the inspiring biographies of Florence Allen, Burnita Matthews (the first woman judge in a U.S. District Court), and Shirley Mount Hufstedlr (who moved from the Ninth Circuit Court of Appeals to the nation’s first Secretary of Education). Additional biographical information about these and other influential women in the law can be found at Stanford Law Library's Women's Legal History website.

It should be noted that state courts began to include women on the bench much sooner than the federal judiciary – in some cases, even before statehood. The Wyoming Territory appointed Esther Hobart Morris the first female justice of the peace all the way back in 1870, a full 20 years before Wyoming was admitted to the Union. Florence Allen, appointed to the Sixth Circuit in 1934, had already served on the bench of two Ohio courts since 1920; she was the first elected female state judge in U.S. history. By 1925, Texas had even established a special all-female high court to decide a case involving a popular fraternal organization, which counted all of the state's sitting supreme court justices as its members. The Special Supreme Court of Texas was assembled by the governor after efforts to set up an all-male special tribunal were similarly thwarted by conflicts of interest. The Special Supreme Court of Texas handed down its lone opinion in the case of Johnson v. Darr et al., 114 Tex. 516 (1925) (read on LexisNexis Academic with Duke NetID).

To learn more about the history of women on the bench, search the Duke Libraries Catalog for the subject heading "Women judges – United States". You’ll find titles like First Lady of the Law: Florence Ellinwood Allen and other judicial biographies, as well as works discussing the impact of gender diversity in the courts. For help locating these and other titles, be sure to Ask a Librarian.

Wednesday, March 4, 2015

Financial Times Historical Archive Now Available

The Duke University Libraries recently subscribed to the Financial Times Historical Archive, a facsimile edition of the seminal British finance newspaper from 1888-2010. It's a searchable and browseable collection of every article, advertisement and market listing from the very first issue of the newspaper until the end of 2010.

Known as the London Financial Guide when its first issue was published on January 9, 1888 (view issue), the tri-weekly paper contained invaluable financial analysis for the low price of one penny. Barely a month later, the paper had expanded to a daily format and renamed itself The Financial Times (view Feb. 13, 1888 issue), illustrating its commitment to global financial coverage beyond the city of London. Other fun facts from FT history, including the first printing on its now-iconic pink paper (1893, for you trivia buffs) can be found on History of the FT: An Interactive Timeline or in the 1988 publication The Financial Times: A Centenary History, available in Perkins/Bostock library.

This online archive is undoubtedly a gold mine of financial history, which will benefit journal cite-checkers and other legal researchers. But if you're wondering how to access the more recent half-decade of articles, no worries! Duke University has full-text access to more recent FT articles through a number of online databases (see options), although FT places a 30-day embargo on the very latest content. To access the most recent stories, you can register with a free account on FT.com, which allows users to access 3 free stories per month. Deeply-discounted student subscriptions are also available, which provides complete access to the 5-year archive.

For help with navigating the Financial Times Historical Archive, or for options to access the more recent full text of FT, be sure to Ask a Librarian.

Tuesday, February 17, 2015

NC Court Reports Digital Collection

The North Carolina State Library has completed its digitization project of official North Carolina Supreme Court reports. Although additional search features will be released later, the collection is now available at http://digital.ncdcr.gov/cdm/search/collection/p16062coll14/order/title/ad/desc. The scanned volumes date back to volume 1 (decisions from 1778-1804) and conclude with the recent volume 365 (2011-2012). The State Library also continues to digitize the North Carolina Court of Appeals Reports, with the first 100 volumes already available.

Although both the North Carolina Reports and North Carolina Court of Appeals Reports are available in the Goodson Law Library's collection as well as online sources like LLMC Digital, this additional free access is a welcome public service to legal researchers. In addition to centuries of case law, the reporters also include valuable biographical information about court justices, such as reprinted remarks from portrait dedication ceremonies.

For more information about sources for North Carolina case law, visit the library's research guide to North Carolina Practice or Ask a Librarian.

Wednesday, February 4, 2015

The 19th Century Struggle for Civil Rights

[The following guest post was written by Goodson Law Library Reference Intern Aaron Kirschenfeld, who is completing a dual J.D. and Master's of Information Science at UNC-Chapel Hill in May.]

The monumental changes in American law, let alone in society, brought about by the Civil Rights Movement of the 1950s and '60s are well known to many in the legal community and to our country as a whole. Cases like Katzenbach v. McClung, 379 U.S. 294 (1964) and Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964), and major federal legislation like the Civil Rights Act of 1964, 78 Stat. 241, and the Voting Rights Act of 1965, 79 Stat. 437, have left a lasting impression on the nation.

But what about the significant legacy of legal reform in the years following the Civil War? A new display in the Goodson Law Library's Riddick Rare Book & Special Collections Room, located on Level 3, commemorates Black History Month with a gathering of materials related to 19th century efforts to secure civil rights for the recently emancipated former slaves. (For an official federal recognition of Black History Month, along with a brief bit of history, see 100 Stat. 6.)

 During Reconstruction (1865 – 1877), Republicans in the U.S. Congress made several sweeping attempts to legislate equality: The Civil Rights Act of 1866, 14 Stat. 27, several Reconstruction and enforcement or "force" acts, and finally, the Civil Rights Act of 1875, 18 Stat. 335. (All of these statutes can be found in the U.S. Statutes at Large database on HeinOnline.) This last act contained language that would be echoed nearly a century later in the historic Civil Rights Act of 1964, including entitlement to:
equal enjoyment of … public conveyances on land or water, theaters, and other places of public amusement….
Debates printed in the Congressional Globe (the predecessor to the Congressional Record) and testimony from special Reconstruction hearings are on view.

The 1875 Act was struck down by the Supreme Court in The Civil Rights Cases, 109 U.S. 3 (1883), with a lone dissent by Justice John Marshall Harlan. Harlan was also the only dissenter in Plessy v. Ferguson, 163 U.S. 537 (1896). Both opinions are included in the excellent collection, I Dissent, edited by Mark Tushnet (KF8742 .I35 2008).

The 14th Amendment was passed by Congress in 1866 and ratified by the states in 1868. Also in 1868, North Carolina approved a new Constitution; a contemporary printing is on display (KFN7801 1868 .A4 1868 c.1). By that time, the Republican Party had gained control in the state, lifting "scalawag" William Woods Holden of Hillsborough into the Governor's office (though he was first appointed Military Governor by President Johnson in 1865). He was impeached with the backing of the nascent Ku Klux Klan in 1870. A record of the impeachment trial, complete with a handbill from the 1868 election, is also on display. When Republicans regained control later in the decade, the state elected its first black U.S. Congressman, John Adams Hyman.

Before the civil war, Black Codes often governed the rights of both slaves and free blacks. Louisiana, with its historical background in civil law, passed a Black Code in 1807, soon after statehood. After Reconstruction and the withdrawal of federal troops from the South, states again began enacting codes restricting the rights of blacks. These Jim Crow laws included mandates of racial segregation in public areas. In 1890, for instance, Louisiana passed the Separate Car Act, the public accommodation statute challenged, unsuccessfully, in Plessy.

Justice Harlan, in his Plessy dissent, wrote:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
In all likelihood, Harlan lifted this notion of a color-blind Constitution from Albion W. Tourgée, Plessy's lawyer. After fighting in the Civil War, Tourgée, a native of Ohio, moved to Guilford County, North Carolina, where he served as a judge during Reconstruction. He fictionalized his experience as a “carpetbagger” in the novel A Fool's Errand (1879) and became a well-known speaker and writer. His novel Bricks Without Straw (1880) was written from the perspective of emancipated slaves as they experienced newfound political freedoms.

Come by the Riddick Room on Level 3 of the law library to see these and other materials on the struggle for civil rights and its roots in 19th century law.

-- Aaron Kirschenfeld, Reference Intern