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On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.
The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here, here and here, and I will not revisit their content. Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT. As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate. It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.
There are two substantive issues which were at stake in making the case for provisional measures that I want to address: First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’. Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue. This issue is a factual question bearing on whether the NSAG conduct meets the elements of terrorism as defined in Article 2(1) ICSFT. It is also, however, a legal question calling for an appreciation of the relationship between IHL and the terrorism suppression regime.
The first issue turned out to be something of a non-event in the Court’s Order, as the Court essentially accepted the point. However, the Court used language which makes it clear that the scope of the ICSFT remains open for the merits phase of the proceedings (paras 30-31, Order). Given that part of Ukraine’s case is in respect of a Russian failure to prevent private actors from financing terrorism (covered by Article 18 of the ICSFT), it is undoubtedly true that ‘at least some of the allegations made by Ukraine […] appear to be capable of falling within the scope of the ICSFT ratione materiae’ (para 30, Order). But part of Ukraine’s case bears on the financing of terrorism by the Russian state. As the ICSFT does not expressly prohibit States from financing terrorist conduct, resolution of this issue calls for the Court to determine whether the ICSFT is purely a criminal law enforcement treaty which contemplates State regulation of private / non-State conduct, or whether it can be interpreted to prohibit States from engaging in the defined offences. With that in mind, both parties addressed the relevance of the Bosnia Genocide Case precedent (in which the Court held that the obligation to prevent genocide under the Genocide Convention necessarily implies a prohibition on the commission of genocide by State parties). Ukraine’s initial arguments were rather cursory on this point. Russia’s pleadings on the issue, on the other hand, ran from para. 6 – para. 55 in the oral proceedings transcript (CR.2).
In an attempt to distinguish the Genocide Convention from the ICSFT, Russia relied on the difference between the compromissory clause in the Genocide Convention (which mentions ‘responsibility of a State’) and that in the ICSFT (which does not); that Article IV of the Genocide Convention expressly contemplates commission of the defined offences by constitutionally responsible rulers and public officials, while the ICSFT does not; and that (as a result of these differences in addition to others) the ICSFT has a distinctly criminal law enforcement flavor to it. Ukraine’s Rebuttal rightly notes that absolutely nothing hung on the language in the compromissory clause or Article IV of the Genocide Convention as far as the implied prohibition of genocide was concerned in the Court’s Bosnia Genocide Case decision on the merits (paras. 38-39, CR.3). Indeed, as I have argued elsewhere, the argument as to implied obligations in the Bosnia Genocide Case decision is even more compelling in the terrorism suppression context than it was in reference to the Genocide Convention.
But Ukraine’s Rebuttal in respect of the criminal law enforcement flavour of the Convention would benefit from further development. In particular, there is evidence in the travaux préparatoires that the reference to ‘any person’ committing an offence within the scope of the terrorism suppression conventions (including the ICSFT) was understood to cover state actors. It is equally noteworthy that an exclusion clause, which might have excluded State conduct in the context of an AC from the scope of the ICSFT, was proposed but not incorporated in the final draft – very strong evidence that the Convention is at least silent on the State terrorism financing issue. While there is obviously much controversy regarding ‘State terrorism’ as a phenomenon, and no difficulty at all in acknowledging ‘State genocide’, it is hard to see how the Court will convincingly avoid applying its Bosnia Genocide Case interpretive approach to the ICSFT, even if the Order leaves the question open in a somewhat pointed way.
In respect of the second issue, it bears repeating that the NSAG attacks which underlie Ukraine’s Application took place principally in the context of an AC in Eastern Ukraine. If Ukraine’s allegations regarding the downing of a civilian airliner, the bombing of peaceful protestors, and attacks against civilian residential areas, all carried out by NSAGs, are true – those incidents amount to a breach of Common Article 3 of the Geneva Conventions (‘GCs’) [as ‘violence to life and person’ against ‘persons taking no active part in the hostilities’ in the context of a non-international AC]. Whether IHL should apply exclusively to these acts (as lex specialis), or whether the terrorism suppression regime overlaps with IHL and should be available to plug any law enforcement gaps (or ICJ jurisdictional gaps) in respect of IHL breaches to which the terrorism regime also applies, is something of a contested issue. Russia avoided the legal issue by addressing the regime interaction question from a factual perspective. Russia characterized the underlying NSAG conduct as a series of attacks against military objectives, even if indiscriminate and affecting civilians, and therefore as a matter exclusively for IHL and its proportionality calculus (paras 15-33, CR.2). This conclusion draws on the requirement that attacks against civilians be intentional in order that they amount to ‘terrorism’ under Article 2(1)(b) ICSFT. Indiscriminate attacks on the other hand, accepting for argument’s sake Russia’s logic, are not intentional attacks against civilians (thereby failing to satisfy one of the elements of Article 2(1)(b) ICSFT), and are instead intentional attacks against military objectives which have the accidental or unfortunate consequence of civilian casualties. There are of course very serious problems with this logic, most notably that the ICTY has repeatedly held that indiscriminate attacks can be indicative of the fact that the attack was directed against the civilian population (Prosecutor v Milošević, IT-98-29/1, Appeals Chamber, Judgment, 12 November 2009, paras 66-67; Prosecutor v. Galić, IT-98-29, Trial Chamber Judgment, 5 December 2003, para 60). Russia also insisted on the point (not obviously relevant in the form presented) that Ukraine is equally guilty of indiscriminate attacks in the AC. To the extent that there was a legal point being made, it seemed to be based on an assumption that Ukraine would not accept the characterization of its war activities as ‘terrorist’, thereby implicitly deploying a ‘good for goose / good for gander’ type argument.
Ukraine, on the other hand, factually characterized the NSAG conduct as a series of intentional attacks against civilians, thereby falling within the scope of both IHL and Art. 2(1)(b) ICSFT. And indeed given the scale of civilian casualties, some of the attacks could very well be characterized as attacks against civilians under the ICTY’s approach, even if they might also be characterized as indiscriminate. As a result of its factual claims, Ukraine takes a nuanced approach to the regime interaction question from a legal perspective, arguing that IHL and the terrorism suppression regime can overlap in respect of attacks against civilians (paras. 26-28, CR.1; paras. 10-14, CR.3). Ukraine naturally relies on the very express language in the definition of terrorism of Article 2(1)(b) of the ICSFT (which includes intentional attacks against ‘persons not taking an active part in hostilities in a situation of AC’), but (as discussed further below) this does not entirely resolve the regime interaction issue.
The Court did not address the regime interaction question at this stage. Instead, the Court held, in one sentence, that insufficient evidence had been adduced in respect of the Article 2(1)(b) ‘terrorist purpose’ element of the NSAG conduct underlying Ukraine’s Application, in addition to there being insufficient evidence of intentional or knowing financing of such conduct (as required by Art. 2(1) ICSFT). Given Ukraine’s approach to its pleadings on this point, this is perhaps not a surprising outcome. In Ukraine’s first round of pleadings, there were several conclusory statements made as to the purpose of the NSAG attacks underlying the Application and Request for provisional measures, but no argument or evidence offered in support thereof. In its Rebuttal, Ukraine argued that terrorist purpose should be inferred from the ‘nature or context’ of the specific attacks – and that was indeed the understanding of States negotiating the ICSFT. But Ukraine’s evidence in support of the argument was somewhat weak. On the merits, it might be expected that Ukraine will address itself to the ‘terrorist purpose’ and ’intentional or knowing financing of terrorism’ questions – in particular from an evidentiary perspective – more fully. But, if it is to be successful on the merits, and assuming for the moment that it can prove both ‘terrorist purpose’ and intentionality with respect to civilian casualties, it will also need to address the ‘IHL as lex specialis’ question as a matter of law. This is because Article 21 of the ICSFT states that ‘[n]othing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular […] international humanitarian law’.
Article 21 ISCFT gives effect to States’ clear intentions vis à vis the terrorism suppression conventions that it not upset the balances achieved by IHL. In negotiating the series of terrorism suppression conventions, States were particularly concerned that conduct which is lawful (or at least not unlawful) as a matter of IHL not be rendered unlawful under the guise of terrorism suppression. This concern of course only applies to conduct that is otherwise regulated by IHL, such that there is substantive overlap between the terrorism suppression convention and IHL. Financing acts of war is not something IHL expressly regulates. Having said which, the ICRC takes the view that the obligation to ‘respect and ensure respect’ for the GCs in Common Article 1 imposes a negative obligation on States to refrain from encouraging, aiding or assisting in violations of the Conventions by Parties to a conflict (including non-State actors). If the Terrorism Financing Convention does indeed prohibit State support for terrorist acts (à la Bosnia Genocide Case), then there is an overlap between those negative obligations under the Terrorism Financing Convention and Common Article 1 of the GCs as interpreted by the ICRC – insofar as the conduct defined as terrorist under the Terrorism Financing Convention also amounts to a breach of the GCs. And indeed, as far as Article 2(1)(b) ICSFT is concerned, every act which amounts to terrorist conduct will also be unlawful under Common Article 3 of the GCs when committed in the context of an AC. This is because terrorism is defined under Article 2(1)(b) ICSFT as deliberate attacks against persons not participating in hostilities, which is absolutely prohibited under IHL without any proportionality balancing to account for military necessity. As a result, the prohibition of supporting terrorism under the ICSFT and the prohibition of supporting IHL breaches under Common Article 1 of the GCs are co-extensive.
So far as far as Article 2(1)(b) is concerned, the Court’s eventual application of the Terrorism Financing Convention to the financing of IHL breaches in the context of an AC would not only not undermine IHL, it would be its jurisdictional champion – upholding prohibitions under IHL. In respect of terrorism offences defined under Article 2(1)(a) ICSFT (like the downing of MH17 in reliance on the Montreal Convention), the matter is more complicated – and perhaps for another post…. As most of Ukraine’s Application relies on 2(1)(b) ICSFT, however, the point as to the Terrorism Financing Convention being an appropriate vehicle for upholding the Common Article 1 GC prohibition on aiding or assisting IHL breaches stands. And given the current international law context, in which proxy wars and arming NSAGs (often recklessly) abound, the Court might best serve the interests of international peace and security by being open to Ukraine’s legal case on regime interaction as a matter of principle, whether or not the facts ultimately support a finding of Russian responsibility.
Thanks for the post. I just want to pick up on the point you raise about the relationship between the Terrorism Financing Convention and IHL. There seems to me to be a serious problem, beyond the one you mention, with the Russian argument that indiscriminate attacks (at least in the sense of attacks that are directed at military objectives but which disproportionately affect civilians) are not intentional attacks on civilians within the meaning of Art. 2(1)(b) of the Terrorism Financing Convention. The problem is that it assumes that when an attack is directed at a military objective,the person engaging in the attack does not “intend” to attack civilians as well. I am open to correction but I do not think that this is the ordinary meaning of “intention” in most systems of criminal law. Most systems of criminal law would, I think, take the view that a person intends a consequence where they are aware that this consequence will occur in the ordinary course of events.
So if a person directs an attack against a military objective but knows that such an attack would also kill civilians that person, in the ordinary meaning of intention, intends to kill those civilians too. So killing of civilians can be indiscriminate, thus in violation of IHL, and also be intended, therefore a terrorist act under the Terrorism Financing Convention.
In fact, this is true even if the killing of those civilians is proportionate as far as IHL is concerned. The fact that an attack is proportionate under IHL does not mean that the attacker does not “intend” to kill civilians as far criminal law is concerned. If the attacker is aware that the civilians will be killed presumably they intend to kill those civilians. It is important to recall that what IHL prohibits is not the intentional killing of civilians but rather intentionally directing attacks against civilians.
I’m not quite sure what you mean by the words “which is . . .” at the end of that quote.
However, if Art. 21 does not prevent the joint application of Convention and IHL then it is entirely conceivable that acts that are lawful under IHL will be prohibited by the Convention. Unless “intention” means something different from what I think it usually means under criminal law.
Just to expand upon the point I made with respect to Art. 21 in the last paragraph of my comment above, perhaps Art. 21 should not be regarded as suggesting that if a matter is covered by IHL it is thereby excluded from the ambit of the Convention. Afterall, if Art. 21 excludes the application of the convention to situations of armed conflict covered by IHL, why does Art 2(1)(b) refer, in part, to concepts that are only meaningful in situations of armed conflict covered by IHL.
Rather Art. 21 may be construed as saying that if an act is lawful under IHL, it is not to be regarded as prohibited by the Convention. So even if an act is ordinarily prohibited by Art. 2(1)(b), the effect of Art. 21 may be to ensure that the act is nevertheless not prohibited by the Convention where it is consistent with IHL.
(1)	Art. 21 of ICSFT is a standard ‘without prejudice’ clause which has been followed in the negotiation for subsequent anti-terrorism conventions, including the Draft Comprehensive Convention on International Terrorism. It means that the ICSFT is without prejudice to IHL, the UN Charter, other relevant conventions etc. For example, a person could be held responsible for an offence under ICSFT as well as for a war crime under IHL, but his/her punishment for the IHL breach has to be pursued outside the context of ICSFT.
(2)	Cf. Art. 8(2)(b)(iv), ICC Statute: ‘war crime of intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects …. which would be clearly excessive re the concrete and direct overall military advantage anticipated’. The mental element as stipulated in the Elements of Crime for this offence is the ‘knowledge’ that the attack would cause the aforesaid. Cf. ICC Statute, Art. 8(2)(b)(i),(ii), and (iii) which require the ‘intent’ to attack civilians, civilian objects, or personnel or objects involved in a humanitarian assistance or peacekeeping mission.
Thanks for the comment. I just wanted to note that the offences in Art. 8(2)(b)(i),(ii), and (iii), ICC Statute, that you refer to at the end of your comments do not merely require the ‘intent’ to attack civilians, civilian objects, or personnel or objects involved in a humanitarian assistance or peacekeeping mission. They are offences of “intentionally directing attacks” against those persons and objects. The “directing” bit is important.
– The PrepCom for the ICC adopted the position that the term ‘intentionally’ under Art. 8(2)(b)(i)ICC Statute was related to directing an attack and also to the object of the attack.
Para. 2 As stated in art 30 ICC Statute, unless otherwise provided: the requisite mental element = intent AND knowledge.
Para. 3 Existence of intent and knowledge can be inferred from relevant circumstances.
Thank you for your comments! Dapo – we agree broadly in the result, but may get there somewhat differently. I think your reading of Article 21 is exactly right: Article 21 does not preclude the co-extensive application of IHL and the ICSFT, but rather ensures that conduct which is lawful (or at least not unlawful) as a matter of IHL is not criminalised under the guise of terrorism. This is relatively clear from ‘ordinary meaning’, and supported by the negotiating history of terrorism suppression conventions in general. First, there is the general approach of States in negotiating the terrorism suppression conventions (including the still under negotiation Comprehensive Convention)– which has been to avoid having the balances achieved by IHL upset by the terrorism suppression regime. Second, an exclusion clause (like Art. 19 of the Terrorist Bombing Convention – the result of which is an absolute exclusion of conduct to the extent governed by IHL, irrespective of whether the conduct is IHL compliant or not) was proposed for the ICSFT –– but was ultimately not included. Given the way in which terrorism has been defined in Article 2(1)(b), it could not have been otherwise – in that the definition very obviously covers conduct which occurs in the context of an AC and is therefore governed by IHL. Indeed, Kriangsak, I don’t think that Article 21 entirely has the effect you suggest. An individual who has committed an offence under both the ICSFT and IHL might be prosecuted under either regime. Had States wanted it otherwise, they would have relied on an Article 12 Hostages Convention type clause. The effect of Article 12 is that, if (i) conduct is prohibited under both the Hostages Convention and IHL, and (ii) IHL imposes an obligation to extradite or prosecute in respect of that conduct, then the IHL criminal law enforcement regime governs. Article 21 does not prioritise one criminal law enforcement regime over another, it simply ensures that the ICSFT does not interfere with rights etc. as set out under IHL.
And this brings us to the question of intention under 2(1)(b). Intention, in many domestic legal systems, would most certainly cover an attack against a military objective which knowingly caused civilian casualties (even if those civilian casualties were proportionate to the military advantage sought). But we are here interpreting the definition of the offence for the purposes of direct State responsibility – which is to say we rely on the ordinary meaning of 2(1)(b) in its context (which includes Article 21). To do this, we might take a broad approach to Art. 2(1)(b) and then read it down for Article 21 purposes (which is what I think Dapo you might be suggesting), or we might incorporate any regime interaction driven interpretations suggested by Article 21 into the Art. 2(1)(b) definition of the offence (which is what I am suggesting).
If ‘intention’ in Art. 2(1)(b) is interpreted as it might be under domestic law, a proportionate attack (where civilian casualties are knowingly caused) directed against a military objective would be a terrorist offence, support for which would amount to ‘terrorist financing’ under the ICSFT. The result of the latter is that the terrorism suppression regime would, in the first instance (pre-application of Article 21) prohibit that which is permissible under IHL. And so, I take the view that ‘intended to cause death or serious bodily injury to a civilian’ in Article 2(1)(b) must be read down (at least from the perspective of its more expansive meaning under domestic law) to cover intentionally directing attacks against civilians (as understood under IHL). As a result of this reading of 2(1)(b), terrorist conduct and prohibited AC conduct are co-extensive, and the prohibition of supporting such conduct under CA1 GCs is therefore also co-extensive with the ICSTF definition of the primary offence. Article 21 achieves precisely what it was intended to achieve. And from there, we get to my reliance on the ICTY’s jurisprudence vis à vis Russia’s indiscriminate attack argument.

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Animation of the computed electrical resistivity tomography (ERT) results for the 20-day saline tracer test at the Massachusetts Military Reservation, Cape Cod, Massachusetts. The tomograms show the percent change in subsurface electrical resistivity after injection of a saline tracer. Blue regions indicate a zone of decreased resistivity, representing the location of the saline tracer.
USGS and Stanford University scientists used electrical resistivity tomography (ERT) – similar to medical CAT scan techniques – to monitor the subsurface movement of a saline tracer (sodium chloride – salt) in an unconsolidated sedimentary aquifer. Resulting time-lapse geophysical images identified flow paths of tracer transport in the aquifer, indicated contrasts representative of changes in tracer concentration in three dimensions (3-D) through time, and were useful in calibrating a ground-water flow computer model. The ERT results include sixty 3-D snapshots of tracer movement during a 20-day test. The combination of ERT imaging and conventional tracer tests provides a new methodology for understanding aquifer heterogeneity at the field scale.
Setup for the electrical resistivity tomography (ERT) that USGS scientists used to monitor the injection of a saline tracer at the Massachusetts Military Reservation, Cape Cod, Massachusetts. The yellow cables are ERT cables. Metal pipes indicate location of sampling sites. Boreholes are encased in white PVC pipes.
Singha, K., and Gorelick, S.M., 2005, Saline tracer visualized with electrical resistivity tomography–field scale spatial moment analysis: Water Resources Research, v. 41, no. 5, W05023, doi:10.1029/2004WR003460.
Singha, K. and Gorelick, S.M., 2006, Effects of spatially variable resolution on field-scale estimates of tracer concentration from electrical inversions using Archie’s law: Geophysics, v. 71, no. 3, p. G83-G91.
Borehole radar slowness-difference tomogram between a biostimulant injection well and a downgradient monitoring well, Anoka County Riverfront Park, Fridley, Minnesota. The blue region (increased radar velocity) delineates the region containing the vegetable-oil biostimulant (after Lane and others, 2004).
USGS scientists used time-lapse borehole radar tomography to monitor a field-scale bioremediation pilot project conducted by the U.S. Navy. A vegetable-oil emulsion was injected to stimulate microbial degradation in areas contaminated by chlorinated hydrocarbons (including trichloroethylene (TCE) and dichloroethylene (DCE)). The radar tomography delineated the spatial distribution and between-well saturation of the vegetable-oil emulsion, and indicated the extent of ground water with altered chemistry. The geophysical monitoring results indicated that the vegetable-oil biostimulant remained close to the three injection wells; however, downgradient total dissolved solids increased after injection, consistent with microbial stimulation and chlorinated hydrocarbon degradation.
Borehole radar being set up at the Naval Industrial Reserve Ordinance Plant (NIROP), Fridley, Minnesota, field site.
Lane, J.W., Day-Lewis, F.D., and Casey, C.C., 2006, Geophysical monitoring of a field-scale biostimulation pilot project: Ground Water, v. 44, no. 3, p. 430-443 Doi 10.1111/j.1745-6584.2005.00134.x.
Lane, J.W., Jr, Day-Lewis, F.D., Versteeg, R.J., and Casey, C.C., 2004, Object-based inversion of crosswell radar tomography data to monitor vegetable oil injection experiments: Journal of Environmental and Engineering Geophysics, v. 9, no. 2, p. 63-77.
Lane, J.W., Jr, Day-Lewis, F.D., Versteeg, R.J., and Casey, C.C., 2003, Object-based inversion of crosswell radar tomography data to monitor vegetable oil injection experiments, in Proceedings of the Symposium on the Application of Geophysics to Engineering and Environmental Problems (SAGEEP), San Antonio, Texas, Proceedings, April 6-10, 2003: Environmental and Engineering Geophysics Society, CD-ROM, 27 p.
Witten , A., and Lane, J.W., 2003, Offset vertical radar profiling: The Leading Edge (newsletter by The Society of Exploration Geophysicists), v. 22, no. 11, p. 1070-1076.
Borehole radar logging at the former Loring Air Force Base, Limestone, Maine.
The USGS used borehole radar tomography and reflection techniques to monitor steam-enhanced remediation of a fractured limestone aquifer contaminated with chlorinated hydrocarbons. The borehole radar results were used to estimate the extent and degree of steam invasion within the aquifer in the vicinity of the radar monitoring wells.
USGS scientist processing preliminary borehole radar data inside a trailer used to house borehole radar equipment. White pipes on the left are for antenna storage.
Grégoire, C., Lane, J.W. Jr., and Joesten, P.K., 2005, Steam injection pilot study in a contaminated fractured limestone (Maine, USA)—Modeling and analysis of borehole radar reflection data, in Proceedings of the 3rd International Workshop on Advanced Ground Penetrating Radar, Delft, The Netherlands, May 2-4, 2005.
Geophysical tomography methods are used increasingly to help estimate hydrologic properties in sedimentary and fractured-rock aquifers. In an effort to strengthen the link between geophysical and hydrogeologic characterization, USGS scientists investigated the effect of measurement resolution on the ability to use geophysical tomograms to estimate hydrologic parameters (for example, porosity, solute concentration, water content). Using a new modeling approach, it is possible to predict and quantify the loss of information (blurring and streaking) in tomography. ERT performs well near the boreholes, but produces smoothed out estimates in the interwell region; in contrast, radar performs well in the middle of the tomogram but poorly at the boreholes. Thus, ERT and radar can provide complementary information about hydrologic properties between boreholes.
Day-Lewis, F.D., Singha, K., and Binley, A.M., 2005, Applying petrophysical models to radar travel time and electrical-resistivity tomograms–resolution-dependent limitations: Journal of Geophysical Research, v. 110, B08206, doi:10.1029/2004JB005369, 17 p.
Handbook on Permeable Reactive Barriers Published - The handbook gives guidance on the use of permeable reactive barriers to remediate radionuclide, trace metal, and nutrient contamination.

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When a policyholder tells a liability insurance company that an injured plaintiff claims damages, technically the policyholder makes two claims: 1) a third party claim by the injured plaintiff for damages; and 2) a first party claim by the policyholder for defense and indemnification for the plaintiff’s claim. California law variously requires that an insurer deny a claim “immediately,” “promptly,” and within 40 days. However, some courts have permitted insurers to deny coverage up to two years after accepting the defense and on the eve of trial. As a result, many litigants are confused about California law regarding when a liability insurer must reserve its rights.
Nothing in the cases that allow a liability insurer to assert a late reservation rights suggests that the courts were aware of insurance regulations requiring an “immediate” reservation of rights nor did these courts discuss whether the insurer had fulfilled its duty to investigate a claim promptly.
Policyholders seeking to secure insurance coverage should promptly reject a liability insurer’s late assertion of a reservation of rights as untimely, inadequate, and unlawful, and not acquiesce meekly to whatever position the insurer takes. The discrepancy between the statutory and regulatory requirement that reservations of rights be asserted promptly and poor judicial enforcement may be the result of poor lawyering. Counsel representing policyholders should cite the legislative requirements to courts when seeking to limit the scope of a reservation of rights. One recent case found that a “cut and paste” reservation of rights was ineffective because it failed to adequately advise its policyholder of the basis upon which coverage might be denied.
“[I]f a liability insurer, with knowledge of a ground of noncoverage assumes and conducts the defense without [a] reservation of rights, it is thereafter precluded from setting up such ground of noncoverage. [T]he insurer’s unconditional defense constitutes a waiver and an estoppel.” This rule emphasizes two elements: (1) knowledge of grounds to deny coverage; and (2) defending without a reservation. A purpose of a reservation of rights is to empower the policyholder to takes steps to protect herself from the insurer. Late notice of a reservation of rights undermines this purpose.
An insurance statute prohibits and insurer from knowingly failing to acknowledge and act reasonably promptly upon communications, failing to adopt and implement reasonable standards for the prompt investigation of claims arising, failing to affirm or deny coverage within a reasonable time, not attempting to effectuate prompt, fair, and equitable settlements, failing to inform of the coverage under which payment has been made, failing to settle claims promptly, and failing to provide promptly a reasonable explanation in relation to the facts or applicable law, for the denial of a claim.
A liability insurer may lose the rights otherwise available to it by one of three separate legal standards: (1) when the insurer voluntarily relinquishes a known right (waiver); (2) when the policyholder detrimentally relies on a reasonable belief that the insurer would provide coverage (estoppel); and (3) when the courts prohibit an insurer from asserting a right as a matter of public policy (forfeiture). Reported California opinions have limited an insurer’s reservation of rights on the basis of waiver and estoppel, but none have enforced a forfeiture.
Notwithstanding that an insurer must defend “immediately”, must deny a claim within 40 days, and explain its denial “promptly”, several courts have allowed insurers to assert a reservation of rights after significant delays. In one case, the court found no waiver of the insurer’s right to deny coverage after a delay of 2 years before first asserting a reservation of rights. In another case, the court found that an insurer did not waive coverage defense despite a nine-month delay in sending a reservation of rights letter after acceptance of defense. In yet another, the court found that an insurer did not waive coverage defenses despite a fifteen-month delay in reserving its rights. However, in one case, the court found that the insurer was estopped to deny coverage after a delay of 2 1/2 years, which was only three weeks before the trial. This court identified detriment to the policyholder because it had a right to independent counsel, who had no time to prepare for trial.
 Code of Regs. § 2695.7(b) (ellipses omitted).
 See Insurer Silence May Concede Full Coverage, and Estoppel, Waiver, and Forfeiture.
 Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 754 (ellipses omitted).
 Alta Cal. Regional Center v. Fremont Indemnity Co. (1994) 25 Cal.App.4th 455, 459 (Alta).
 Alta, supra, 25 Cal.App.4th at 459.
 Buss v. Superior Court (1997) 16 Cal.4th 35, 48 (Buss); Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295.
 See, Estoppel, Waiver, and Forfeiture.
 Old Republic Ins. Co. v. FSR Brokerage (2000) 80 Cal. App. 4th 666, 678 (citations and quotation marks omitted).
 Ringler Assocs. Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1189 (Ringler).
 In National Union Fire Ins. Co. v. Siliconix, Inc. (N.D.Cal.1989) 726 F.Supp. 264, 270, the insurer indicated that it “was ‘investigating this claim under a reservation of rights’ and that it had some “coverage questions” about two months after accepting the defense, but it consented to an paid for the policyholder’s defense through independent counsel. However, the insurer did not “fully reserve” its right for 15 months. Despite the delay, the court found no intentional relinquishment of a known right to support waiver and no prejudice to policyholder, whose independent counsel knew of the coverage questions from a early date.
 Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810, 1839.


SENSATIONAL SMILES, LLC, d/b/a Smile Bright, Plaintiff–Appellant, Lisa Martinez, Plaintiff v. Jewel MULLEN, DR., in her official capacity as Commissioner of Public Health, Jeanne P. Srathearn, DDS, in her official capacity as a Member of the Connecticut Dental Commission, Elliot Berman, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Lance E. Banwell, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Peter S. Katz, DMD, in his official capacity as a Member of the Connecticut Dental Commission, Steven G. Reiss, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Martin Ungar, DMD, in his official capacity as a Member of the Connecticut Dental Commission, Barbara B. Ulrich, in her official capacity as a Member of the Connecticut Dental Commission, Defendants–Appellees.
Before CALABRESI, CABRANES, and DRONEY, Circuit Judges. Paul M. Sherman (Dana Berliner, on the brief), Institute for Justice, Arlington, VA, for Plaintiff–Appellant. Daniel Shapiro, Assistant Attorney General, for George Jepsen, Attorney General of Connecticut, for Defendants–Appellees.
The question in this case is whether a Connecticut rule restricting the use of certain teeth-whitening procedures to licenced dentists is unconstitutional under the Due Process or Equal Protection Clauses. Because we conclude that there are any number of rational grounds for the rule, we affirm the judgment of the District Court.
Under Connecticut law, the State Dental Commission (“the Commission”) is charged with advising and assisting the Commissioner of Public Health in issuing dental regulations. See Conn. Gen.Stat. § 20–103a(a). On June 8, 2011, the Commission issued a declaratory ruling that only licensed dentists were permitted to provide certain teeth-whitening procedures. On July 11, 2011, the Connecticut State Department of Public Health sent Sensational Smiles—a non-dentist teeth-whitening business—a letter requesting that it “voluntarily” cease the practice of offering teethwhitening services, and warning that it could otherwise face legal action.
Sensational Smiles sued, challenging several aspects of the declaratory ruling. The parties before the District Court eventually agreed, however, that just one rule constrained the services offered by Sensational Smiles—specifically, the rule stating that only a licensed dentist could shine a light emitting diode (“LED”) lamp at the mouth of a consumer during a teeth-whitening procedure.1 Sensational Smiles asserted that this rule violates the Equal Protection and Due Process Clauses, because no rational relationship exists between the rule and the government's legitimate interest in the public's oral health. Accordingly, Sensational Smiles sought a declaratory judgment from the District Court that the rule was unconstitutional as applied, as well as a permanent injunction barring the rule's enforcement. The District Court (Michael P. Shea, Judge ) rejected Sensational Smiles' arguments and granted defendants' motion for summary judgment. Sensational Smiles appealed.
We review the District Court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Delaney v. Bank of America Corporation et al., 766 F.3d 163, 167 (2d Cir.2014).
The claims at issue—that the declaratory ruling violated the Constitution's Equal Protection and Due Process Clauses-are both subject to rational-basis review. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“[A] classification neither involving fundamental rights nor proceeding along suspect lines ․ cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate government purposes.”); Molinari v. Bloomberg, 564 F.3d 587, 606 (2d Cir.2009) (“The law in this Circuit is clear that where, as here, a statute neither interferes with a fundamental right nor singles out a suspect classification, we will invalidate that statute on substantive due process grounds only when a plaintiff can demonstrate that there is no rational relationship between the legislation and a legitimate legislative purpose.”) (citations, internal quotation marks, and brackets omitted).
As the Supreme Court has stated on multiple occasions, rational-basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller, 509 U.S. at 319. Rather, we are required to uphold the classification “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 320 (internal quotation marks omitted). Accordingly, to prevail, the party challenging the classification must “negative every conceivable basis which might support it.” Id. (citation and internal quotation marks omitted).
Reviewing the record de novo, we agree with the District Court that a rational basis, within the meaning of our constitutional law, existed for Connecticut's prohibition on non-dentists pointing LED lights into their customers' mouths. All sides agree that the protection of the public's oral health is a legitimate governmental interest. The parties, however, strongly dispute whether the rule at issue rationally relates to this interest. Here, the Commission received expert testimony indicating that potential health risks are associated with the use of LED lights to enhance the efficacy of teeth-whitening gels.2 While Sensational Smiles disputes this evidence, it is not the role of the courts to second-guess the wisdom or logic of the State's decision to credit one form of disputed evidence over another.
Sensational Smiles argues that even if there was some basis for believing that LED lights could cause harm, there was still no rational basis for restricting the operation of LED lights to licensed dentists. This is so because dentists are not trained to use LED lights or to practice teeth whitening, and are not required to have any knowledge of LED lights in order to get dental licenses. The Commission, however, might have reasoned that if a teeth-whitening customer experienced sensitivity or burning from the light, then a dentist would be better equipped than a non-dentist to decide whether to modify or cease the use of the light, and/or to treat any oral health issues that might arise during the procedure. The Commission might also have rationally concluded that, in view of the health risks posed by LED lights, customers seeking to use them in a teeth-whitening procedure should first receive an individualized assessment of their oral health by a dentist. Indeed, the Commission explicitly found that “[t]he decision of whether to recommend or apply bleaching agents and/or bleaching lights to a particular person's teeth requires significant diagnostic expertise and skills, in part, to allow the provider to distinguish between pathological versus non-pathological causes of tooth discoloration.” App'x at 201. There were thus rational grounds for the Dental Commission to restrict the use of these lights to trained dentists.
Sensational Smiles further argues that the rule is irrational because it allows consumers to shine the LED light into their own mouths, after being instructed in its use by unlicensed teeth-whitening professionals, but prohibits those same teeth-whitening professionals from guiding or positioning the light themselves. The law, however, does not require perfect tailoring of economic regulations, and the Dental Commission can only define the practice of dentistry; it has limited control over what people choose to do to their own mouths. Moreover, and perhaps more importantly, individuals are often prohibited from doing to (or for) others what they are permitted to do to (or for) themselves. Thus, while one may not extract another's teeth for money without a dental license, individuals can remove their own teeth with pliers at home if they so choose, and a failure to ban the latter practice would not render a ban on the former irrational. The same is true of legal services, where individuals may proceed pro se, but may not represent others without a law license.
In sum, given that at least some evidence exists that LED lights may cause some harm to consumers, and given that there is some relationship (however imperfect) between the Commission's rule and the harm it seeks to prevent, we conclude that the rule does not violate either due process or equal protection.
This would normally end our inquiry, but appellant, supported by amicus Professor Todd J. Zywicki, forcefully argues that the true purpose of the Commission's LED restriction is to protect the monopoly on dental services enjoyed by licensed dentists in the state of Connecticut. In other words, the regulation is nothing but naked economic protectionism: “rent seeking ․ designed to transfer wealth from consumers to a particular interest group.”3 Zywicki Br. at 3. This raises a question of growing importance and also permits us to emphasize what we do not decide, namely, whether the regulation is valid under the antitrust laws. See N. Carolina State Bd. of Dental Examiners v. F.T.C., 135 S.Ct. 1101 (2015) (holding that dental board was not sufficiently controlled by the state to claim state antitrust immunity).
In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir.2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n. 15 (9th Cir.2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir.2002) (“[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”). The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir.2004) ( “[A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”). We join the Tenth Circuit and conclude that economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.
Our decision is guided by precedent, principle, and practicalities. As an initial matter, we note that because the legislature need not articulate any reason for enacting its economic regulations, “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993). Accordingly, even if, as appellants contend, the Commission was in fact motivated purely by rent-seeking, the rational reasons we have already discussed in support of the regulation would be enough to uphold it.
These decisions are a product of experience and common sense. Much of what states do is to favor certain groups over others on economic grounds. We call this politics. Whether the results are wise or terrible is not for us to say, as favoritism of this sort is certainly rational in the constitutional sense. To give but one example, Connecticut could well have concluded that higher costs for teeth whitening (the possible effect of the Commission's regulation) would subsidize lower costs for more essential dental services that only licensed dentists can provide, such as oral surgery or tooth extraction-much as the high cost of a law or business degree at a given university may allow other students at the same university to pursue poetry on the (relatively) cheap. Even such an arguably consumer-friendly rationale is unnecessary, however, as a simple preference for dentists over teeth-whiteners would suffice. To hold otherwise would be to interpret the Fourteenth Amendment in a way that is destructive to federalism and to the power of the sovereign states to regulate their internal economic affairs. As Justice Holmes wrote over a century ago, “[t]he 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). Nor does it endorse Sidney and Beatrice Webb's Fabianism. Choosing between competing economic theories is the work of state legislatures, not of federal courts.
We are buttressed in our decision by the difficulty in distinguishing between a protectionist purpose and a more “legitimate” public purpose in any particular case. Often, the two will coexist, with no consistent way to determine acceptable levels of protectionism. Cf. N. Carolina State Bd. of Dental Examiners, 135 S.Ct. at 1123 (Alito, J., dissenting). And a court intent on sniffing out “improper” economic protectionism will have little difficulty in finding it. Thus, even the law at issue in Lochner—the paradigm of disfavored judicial review of economic regulations—might well fail the sort of rational basis scrutiny advocated by Sensational Smiles and its amicus. See Rebecca L. Brown, Constitutional Tragedies: The Dark Side of Judgment, in Constitutional Stupidities, Constitutional Tragedies 139, 142 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998) (“[S]ubsequent analysts ․ have demonstrated that the law at issue in Lochner, despite its guise as a health regulation, was probably a rent-seeking, competition-reducing measure supported by labor unions and large bakeries for the purpose of driving small bakeries and their large immigrant workforce out of business.”).
Of course, if economic favoritism by the states violates federal law, then, like any state action that contravenes stated federal rules, it falls under the Supremacy Clause. This can happen if—whether motivated by rent-seeking or by libertarian ideals—state action, though rational, violates the dormant Commerce Clause, or if a state licensing board that is insufficiently controlled by the state creates a monopoly in violation of the Sherman Act. See 15 U.S.C. § 1 et seq.; N. Carolina State Bd. of Dental Examiners, 135 S.Ct. at 1114. Accordingly, we emphasize that we take no position on the applicability of the antitrust laws to the regulation at issue here. That is a separate and distinct inquiry that was not argued and is not before us. All we hold today is that there are any number of constitutionally rational grounds for the Commission's rule, and that one of them is the favoring of licensed dentists at the expense of unlicensed teeth whiteners.
I join the majority opinion in its conclusion that the Dental Commission's declaratory ruling is rationally related to the state's legitimate interest in protecting the public health. Because this is sufficient to resolve the appeal, I would not reach the question of whether pure economic protectionism is a legitimate state interest for purposes of rational basis review. The majority having chosen to address that issue, I write separately to express my disagreement.
In my view, there must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses. As the majority acknowledges, only the Tenth Circuit has adopted the view that pure economic protectionism is a legitimate state interest. See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir.2004). Two of the circuits that reached the opposite conclusion expressly rejected the Tenth Circuit's approach. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222–23 (5th Cir.2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n. 15 (9th Cir.2008).
I agree with the Fifth Circuit's reasoning in St. Joseph Abbey, particularly insofar as it disputes the Tenth Circuit's reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here. See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest]. Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority ․, whenever courts have upheld legislation that might otherwise appear protectionist ․, courts have always found that they could also rationally advance a non-protectionist public good.” (emphasis in original)).
A review of the Supreme Court decisions confirms the Fifth Circuit's conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. In Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955), the Supreme Court reviewed an Oklahoma statute that, inter alia, forbade opticians from replacing eyeglass lenses without a prescription from an optometrist or ophthalmologist, even when an optician could easily and safely have done the work. See id. at 485–87. In concluding that the legislation passed rational basis review, the Court recognized that the requirement of a prescription could advance the public interest in an eye examination by a doctor before the lens replacement. See id. at 487–88.
In City of New Orleans v. Dukes, 427 U.S. 297 (1976) (per curiam), the Court reviewed a New Orleans ordinance that prohibited food venders from operating pushcarts in the French Quarter. See id. at 298. A grandfather clause exempted existing vendors from the ban if they had been operating continuously in the French Quarter for at least eight years. See id. The Supreme Court held that the exemption survived rational basis review, observing that New Orleans may have concluded that “newer businesses were less likely to have built up substantial reliance interests in continued operation” and that the grandfathered vendors may have “themselves become part of the distinctive character and charm” of the French Quarter. Id. at 305.
The two more recent decisions cited by the majority upheld differential rates of state taxation. Nordlinger v. Hahn, 505 U .S. 1 (1992), considered a California property tax regime that tied the assessment of property values to the value of the property at the time it was acquired, as opposed to its current value. See id. at 5. This approach benefitted long-term property owners over newer owners. See id. at 6. However, the Court identified the state's “legitimate interest in local neighborhood preservation, continuity, and stability” and the “reliance interests” of existing property owners as rational bases for the law. Id. at 12–13.
In Fitzgerald v. Racing Association of Central Iowa, 539 U.S. 103 (2003), the Court reviewed an Iowa law that imposed higher taxes on racetrack slot machine revenues than it imposed on riverboat slot machine revenues. See id. at 105. Again finding the differential tax treatment rational, the Court suggested that the state legislature “may have wanted to encourage the economic development of river communities or to promote riverboat history.” Id. at 109. And it again emphasized “reliance interests,” observing that the law preserved the historical tax rate for riverboats, whereas racetracks had not previously been permitted to operate slot machines at all. Id. at 105, 109.
It may be that, as a practical matter, economic protectionism can be couched in terms of some sort of alternative, indisputably legitimate state interest. Indeed, the majority suggests as much when it observes that, in this case, the state may have concluded that protectionism “would subsidize lower costs for more essential dental services that only licensed dentists can provide.” Maj. Op., ante, at 12. But it is quite different to say that protectionism for its own sake is sufficient to survive rational basis review, and I do not think the Supreme Court would endorse that approach. Accord Merrifield, 547 F.3d at 991 n. 15 (“We do not disagree that there might be instances when economic protectionism might be related to a legitimate governmental interest and survive rational basis review. However, economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest.”).
Nor do I believe that rejecting pure economic protectionism as a legitimate state interest requires us to resurrect Lochner. Accord St. Joseph Abbey, 712 F.3d at 227 (“We deploy no economic theory of social statics or draw upon a judicial vision of free enterprise․ We insist only that Louisiana's regulation not be irrational—the outer-most limits of due process and equal protection—as Justice Harlan put it, the inquiry is whether ‘[the] measure bears a rational relation to a constitutionally permissible objective.’ Answering that question is well within Article III's confines of judicial review.” (second alteration in original) (footnote omitted)); Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir.2002) (“We are not imposing our view of a well-functioning market on the people of Tennessee. Instead, we invalidate only the General Assembly's naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review.”); see also Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L.Rev. 1689, 1692 (1984) (“The minimum requirement that government decisions be something other than a raw exercise of political power has been embodied in constitutional doctrine under the due process clause before, during, and after the Lochner era .”).
The majority, by contrast, essentially renders rational basis review a nullity in the context of economic regulation. See Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“The end result of the majority's reasoning is an almost per se rule upholding intrastate protectionist legislation.”); cf. Ranschburg v. Toan, 709 F.2d 1207, 1211 (8th Cir.1983) (“Although states may have great discretion in the area of social welfare, they do not have unbridled discretion. They must still explain why they chose to favor one group of recipients over another. Thus, it is untenable to suggest that a state's decision to favor one group of recipients over another by itself qualifies as a legitimate state interest. An intent to discriminate is not a legitimate state interest.”). If even the deferential limits on state action fall away simply because the regulation in question is economic, then it seems that we are not applying any review, but only disingenuously repeating a shibboleth. Cf. Windsor v. United States, 699 F.3d 169, 180 (2d Cir.2012) (“[W]hile rational basis review is indulgent and respectful, it is not meant to be ‘toothless.’ “ (citation omitted)), aff'd, 133 S.Ct. 2675 (2013).
I acknowledge that the deference afforded by courts to legislative enactments is significantly greater in the context of economic regulation than it is “in matters of personal liberty.” St. Joseph Abbey, 712 F.3d at 221 (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4 (1938)); see also Allison B. Kingsmill, Note, Of Butchers, Bakers, and Casket Makers: St. Joseph Abbey v. Castille and the Fifth Circuit's Rejection of Pure Economic Protectionism as a Legitimate State Interest, 75 La. L.Rev. 933, 936 (2015) ( “The [Supreme] Court has not invalidated a single piece of economic legislation on due process or equal protection grounds since [the 1930s], opting for a more deferential, rational basis review of state laws.”). But this difference in degree does not compel the conclusion that our deference in the economic sphere must be absolute. Nor will an insistence on some legitimate, non-protectionist state interest result in sweeping judicial entanglement in the legislative process.
For this reason, I am not troubled by the majority's surmise that “even the law at issue in Lochner—the paradigm of disfavored judicial review of economic regulations—might well fail the sort of rational basis scrutiny advocated by Sensational Smiles.” Maj. Op., ante, at 13–14. First, I doubt that this would actually be the case; even if, as a matter of historical fact, the Lochner law was intended to be a protectionist measure, such intent is not dispositive of the rational basis inquiry. See id. at 10–11. And, in the highly unlikely event that the evidence showed that the law was entirely untethered to any conceivable legitimate state purpose (including protection of the public health), I do not see why the law should survive. Lochner is “the paradigm of disfavored judicial review of economic regulations” because it imposed exacting limits on state action, in stark contrast to the deferential standard applied under modern rational basis review. See Lochner v. New York, 198 U.S. 45, 59 (1905) (“There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty.”). Our aversion to Lochner 's flawed approach is well founded, but we should not respond to that aversion by abandoning the minimum requirements of due process and equal protection.
In short, no matter how broadly we are to define the class of legitimate state interests, I cannot conclude that protectionism for its own sake is among them.
1. According to Sensational Smiles, the LED light was used to “enhance” the teeth whitening process. See Appellant's Br. at 3–4 (“To enhance the whitening process, after the mouthpiece was inserted and the customer was reclined in the chair, a Smile Bright employee would then position a low-powered LED light that was attached to an adjustable arm in front of the customer's mouth. Then the customer would simply relax for 20 minutes and listen to music until the light automatically shut off, indicating the end of the whitening process.”) (internal citations omitted).
2. The Commission heard from Dr. Jonathan C. Meiers, DMD, who testified about several scientific articles that appeared in dental journals and that discussed the safety of lights used for teeth whitening. In particular, he testified, and the Commission adopted as a finding of fact, that bleaching lights (though not specifically LED lights) can lead to an increased risk of pulpal irritation, tooth sensitivity, and lip burns. One article referenced by Dr. Meiers dealt specifically with LED lights, and noted that “Thermal pulp damage from LED-systems cannot be absolutely excluded and has to be taken into consideration, especially when high power LED's are used for a longer time period.” Wolfgang Buchalla & Thomas Attin, External bleaching therapy with activation by heat, light or laser—a systematic review, 23 Dental Materials 586, 590–91 (2007).
3. In the field of public choice economics, “rent-seeking” means the attempt to increase one's share of existing wealth through political activity. See Anne O. Krueger, The Political Economy of the Rent–Seeking Society, 64 Am. Econ. Rev. 291 (1974); Jagdish Bhagwati, Directly Unproductive, Profit Seeking Activities, 90 J. POL. ECON. 988 (1982); see also Dist. Intown Properties Ltd. P'ship v. D.C., 198 F.3d 874, 885 (D.C.Cir.1999) (“While the resulting proposals are naturally advanced in the name of the public good, many are surely zdriven by interest-group purposes, commonly known as “rent-seeking.' ”).
4. At oral argument, appellant pointed us to the Supreme Court's decision in Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985), contending that it stands for the proposition that economic protectionism is not a legitimate government interest. Ward is inapposite, however, because it deals with economic discrimination based on out-of-state residence, not with purely intrastate economic regulation.
Judge DRONEY concurs in a separate opinion.


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The courts have changed in such a way that it’s hard to bring affirmative [racial] claims, which is why I think one of the things that 21st century proponents of equality have to be willing to do is to advocate and litigate around issues such that they are not, in the first instance, making race-based claims. [They must] fashion race-neutral claims. Talk about the environment, talk about food justice, talk about educational dollars, talk about inequality in ways that can help to build coalitions and that can avoid triggering some of the pathologies around our racial conversations—some of the deep resistance to focusing on race qua race.
Alyssa Richardson and Elizabeth Hadaway present a lively conservation with renowned constitutional law scholar and constitutional historian Tomiko Brown-Nagin on the momentous 2013 Supreme Court decisions, civil rights in the 21st century, and advice for students eager to contribute to modern civil rights lawyering.
NB: This interview has been edited for length and clarity.
Elizabeth: We want to thank you on behalf of CR-CL for agreeing to share your wisdom and experience with us and to be our first interview for this series: “What does it mean to be a civil rights lawyer in the 21st century?” So many of our generation are asking this question, especially for those of us facing choices about how to use our time at Harvard Law School and start careers that will contribute meaningfully to social change.
The 2012-2013 Supreme Court term’s docket has attracted a lot of popular attention to major civil rights issues, including gay marriage (in U.S. v. Windsor and Hollingsworth v. Perry) and affirmative action (in Fisher v. University of Texas at Austin). Should we think about these cases in relation to civil rights movements of the last century?
Brown-Nagin: Yes, you certainly can think about both of those cases in relation to the Black freedom struggle. The movement for marriage equality has explicitly made analogies between exclusion of gays from the rights of marriage and exclusion of African-Americans and other minorities from education and employment. Therefore the members of the movement themselves seem to see a linkage between the civil rights struggle and the struggle of gays, and I think that that is a very valid comparison. Others have noted the connection between marriage equality and Loving v. Virginia, the case in which the Supreme Court struck down laws banning interracial marriage—here again, I do think that is a very credible connection to make. And of course, just the idea of the struggle for inclusion and dignity are very much present in both movements.
There are some who would prefer to emphasize the differences. They would talk about how, in contrast to the case of race, sexual orientation is not immutable. Therefore, [they claim], we should see those two as distinct. However, it’s never been the case in the law that it was necessary to have absolute parallel experiences for the courts to find some utility in reasoning by analogy. So I think it’s fine [and] good to focus on commonalities.
As to Fisher v. Texas, the affirmative action policy and the top ten-percent race neutral policy that seeks inclusion and seeks to remedy a history of exclusion . . . should be understood as a part of the long struggle for civil rights in higher education. I, along with my colleague Lani Gaunier, wrote an amicus brief in Fisher v. Texas that argues that the history of exclusion in Texas actually makes this case very much a part of a longer narrative about exclusion — very much connects this case to the Jim Crow era in a way that prior affirmative action cases have not — and should mean that the Court should consider that there is a desegregation rationale for the affirmative action policy that supports the diversity rationale for the policy.
And in fact, one other thing that I will say is that students should know — and certainly this is what I teach in my history courses and my law courses that speak of the history of civil rights — they should appreciate that the wonder of the civil rights movement [and] Brown v. Board of Education is that they inaugurated a movement of movements. So, when one thinks about how the Civil Rights Movement changed America, you shouldn’t just think of it in terms of race, you have to think of ethnicity, you have to think of gender and disability and religion and all of the ways in which other status groups were able to grab hold to the legacy, to the law created by the civil rights movement, and press their cases for inclusion. So the civil rights movement is much more than just about race. It’s about equality for all Americans.
[After Fisher], contrary to the predictions of most commentators — a robust majority of the Supreme Court left holistic, race-sensitive affirmative action undisturbed. Proponents of affirmative action avoided the worst-case scenario. However, the decision leaves open the possibility of litigation over whether universities actually need to resort to race-conscious policies in instances where effective race-neutral alternatives are available. In those cases, the Fisher Court states, the federal courts are the final arbiters of whether race-based affirmative action is justified. Within this legal environment, it is vital for proponents of racial diversity in higher education to embrace race-neutral proxies for inclusion.
Alyssa: Just to dig a little deeper, I know you said, basically, [there must be] a holistic approach to solving this issue, but do you think that there is some particular way of going through the courts, in terms of equal protection? Or substantive due process? What would be the avenue?
Brown-Nagin: So there are 50 states and they have different constitutions. I think different strategies may work depending on the state and the political and social context in those states. [I]t might be easier to argue on equal protection grounds in a state that’s relatively poor where there are reasons independent of the legal claim asserted for a state legislature to supportincreasing levels of funding. [I]n a different state, that courtroom-based advocacy might not work because those external factors are absent. In other words, I really don’t think that — and this gets to the question of how we should think about the Civil Rights Lawyer in the 21st century — I don’t think that there is any particular legal strategy that should be thought of as a magical, all-encompassing strategy that is going to save the day for your client group.
That is one of the lessons of Brown v. Board of Education — a one-size-fits-all approach is going to be difficult [to find] for the entire group. [W]here Brown was actually implemented, it probably worked fairly well for the students who were best prepared to attend integrated schools. And when I say “best prepared,” I mean students who could do well on tests, I mean students who could, if they were in an overwhelmingly white environment, could navigate those environments very well. But for students who were not so well-situated, I think there is a lot of evidence to show that the Brown strategy was quite detrimental. I’m thinking of things like ability-grouping that became much more prominent after Brown. I’m thinking about even the use, the proliferation of standardized testing, which coincided with the desegregation movement. Standardized testing, on the one hand, can be useful to identify problems, but mostly, it’s been used to say that certain students can’t learn or they’re a problem. And I don’t think it’s useful in the educational context to be considered a problem.
So I would say that a variety of approaches can work, and a part of the task for a lawyer is to be creative. If nothing else, be creative. Study the landscape; do the groundwork that’s required to suggest what will work in a particular locale.
Elizabeth: One thing you said really struck me as a former English teacher. At the charter school where I taught, we taught Advanced Placement to all the kids. So I’m wondering, is there any type of legal challenge that you think can be raised on the grounds of tracking or ability grouping?
Brown-Nagin: Well, some cases have been litigated, and the difficulty is that courts don’t want to second-guess an educator’s judgment about what’s best for students. In the [few] cases that have been successful, the patterns of placement can’t be explained by a disinterested exercise of discretion. [For example,] a Black student who performs very well on standardized tests, such that he or she [should] be placed in Advanced Placement ends up getting placed in College Placement, whereas a white student who performs the same way is placed in AP. [That example shows that] there are soft variables that tend to influence how a teacher thinks about a student’s ability to succeed. And yet, most courts have said that the exercise of discretion by teachers does that amount to invidious discrimination. That’s what teachers do all the time. And courts are very skeptical of taking away that discretion.
Moreover, in some of the cases, there are a few students in the AP courses who are students of color, and when it’s been argued that the solution to tracking [to underrepresentation] is to do away tracking, judges will say, “Well, but the studies show that tracking can be useful or at least its not harmful.” And if it’s useful, including for those minority students, why would the courts intervene? So, what I’m saying is, yes, claims can be brought but they are very, very difficult. But I’m really happy to hear that you were working for charter schools that taught that curriculum to everyone. It think that’s the kind of thing that needs to happen. Inside-of-school reform.
Alyssa: To change gears here, how does constitutional lawyering look different, and do you think that the differences in legal strategies can be attributed to a shift in the political make up of the Court?
Brown-Nagin: Well most of the constitutional lawyering in the last 20, 30 years has been defensive, so defending the voting rights act from attack, defending affirmative action policies. It hasn’t been affirmative litigation at all in most areas. And the defensive postures certainly are born of the changing makeup of the court. The courts have changed such that — on the Supreme Court you have someone like Justice Scalia who views the voting rights act as racial entitlement. On the other hand, although they’re often coupled, I think they’re very different, you have someone like a Justice Thomas who is very aware of racial inequalities, who is, I think, concerned about that race-conscious measures [are] stigmatizing *Alyssa laughs* I know you’re skeptical, but I do think we have to try to see that there is a difference.
[T]he overall point that I’m making is that, yes, the courts have changed in such a way that it’s hard to bring affirmative [racial] claims, which is why I think one of the things that 21st century proponents of equality have to be willing to do is to advocate and litigate around issues such that they are not, in the first instance, making race-based claims. Fashion race-neutral claims. Talk about the environment, talk about food justice, talk about educational dollars, talk about inequality in ways that can help to build coalitions and that can avoid triggering some of the pathologies around our racial conversations— some of the deep resistance to focusing on race qua race.
Alyssa: Would you say that the task of the 21st century lawyer is going to be on the defensive — are we trying to make sure we aren’t retreating on issues? Or, do you think that maybe the 21st century lawyer, their task is going to move towards something more like the gay rights movement or the things that we mentioned earlier?
Brown-Nagin: The 21st century [civil rights] lawyer is a lawyer who works on healthcare reform, who, yes, is maybe involved in gay rights, who’s involved in the environmental movement, who is concerned about all of the issues of the day where 9 times out of 10, communities of color are worse off than any other community. The environment they live in is the most polluted sections. They have the worst healthcare. Working on all of these issues will help to impact the world for the better for these communities, all without using language that necessarily is racial in nature. This de-racialized approach may not be as satisfying when one knows that race is at the heart of an issue. But I do think it’s necessary to be less direct in this historical moment.
Alyssa: I’m gonna go home and think about that one.
Alyssa: Our last question is, what advice can you give to law students who are interested in careers in civil rights advocacy?
Brown-Nagin: Advice? Consistent with my advice about what civil rights lawyering should look like in the 21st century, I encourage you to take corporations, environmental law, constitutional law. Don’t just have Civil Rights I, II, III, IV on your transcript! Take Administrative Law; that’s probably one of the most important courses to take. Cover your bases.
You also need to know and be comfortable with thinking like the advocate on the other side. Now this is sort of a pet peeve of mine. I will concede that it can be difficult sometimes to appreciate the alternative arguments when it comes to some issues. But it’s not enough to be righteous. You have to be smart and hardworking and be able to anticipate alternative arguments and do your homework. Passion is good but it needs to be accompanied by being able to make effective and good arguments. You need to know how the law works. You need to understand Justice Scalia and Justice Thomas as well as Justice Breyer and Justice Ginsburg. Be very clear about that.
Alyssa & Elizabeth: Great advice!
Brown-Nagin: Strong medicine. But it’s good for you.
Alyssa & Elizabeth: Thank you.

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chorp huiliu `through . . . putting the ears for the whole body', Ml.
60b16 . a ainm fessin do suidigud i tossoc[h] na epistle, Wb.
50 7a17 . a suíghiúghadh ar uillinn na a-Easpáine to place it (i.e.
páipéir tre shúighiughadh ceasdadh posing questions, Donl.
65suídhiúghadh a rabhadar dhá mhac Mhiledh, ML 116.33 .
settle', Ezek. xliii 20 .
20. . . Éirenn happily were they appointed to rule over, L. Cl. A.
(of the devastating of a country), ML² 1134 .
a suidhiucchadh `until they should be inhabited', FM vi 1936.1 .
35 ZCP vii 268 § 3 .
40do shuidhiughadh `the task of making peace with thee', Aithd.
D. 60.15 . snath-reim suidighthi gacha senchais, MR 108.19 .
. . . do shuidhioghadh a n-aibeóradh, IGT Introd. § 2 (2.24) .
ar pheacadh an tsinnsir do bheith ar na daoinibh, TSh. 3284 .
used as first element in a compound, Introd. § 97 (24.27) .
65(sic MS.), RC xxviii 318 § 35 .
súigid v ī (Lat. sugo, Thurn. Gramm. § 924 ). IGT Verbs § 75 .
Ériu v 208.9 . in tóeb roshúgiusa, 12 . ro-sūig in tairr . . .
80súig an luing, go ros báidh iartain (of the sea), BNnÉ 320 § 18 .
of the well of true wisdom, BNnÉ 23.3 (suidighestair, v.l. Leg.
sugis nél (Nel?) Egept, BB 42a40 .


text:
State v. Standen, 173 Ohio App. 3d 324, 2007-Ohio-5477 – On suspicion of illegal gambling, the bar the defendant operated was raided and $46,485 was seized from a safe. He initially obtained an order releasing some of the money, but the state appealed and won. After he pleaded guilty to the gambling charge, the state sought forfeiture of the money. It dropped a claim under R.C. 2933.43 because it could not prove the money was contraband. The court properly denied an alternative claim under R.C. 2933.41, which claimed the currency had been used in the commission of a criminal offense. The defendant had a possessory interest in the money and had done all he needed to assert that interest by previously seeking its return. Unable to prove a connection between the money and the crimes the defendant was convicted of, the state for the first time on appeal claimed it was being used in connection with money laundering. The suggestion that the money may have been hidden from the defendant‘s wife during a divorce is not enough to establish money laundering.
State v. Thompson, Fairfield App. No. 03CA87, 2004-Ohio-7269 -- Money seized during raid on gambling premises was improperly ordered forfeited during sentencing on a misdemeanor charge of operating a gambling house. Forfeiture requires a petition and proceedings in accordance with R.C. 2933.43(C) unless it has been made part of a plea bargain.
State v. George, Hamilton App. No. 030216, 2004-Ohio-2868 -- Tip tickets ostensibly sold to benefit a charity were the basis for convictions for gambling, operating a gambling house, money laundering, conspiracy and racketeering. At sentencing the prosecutor claimed some of the proceeds ultimately went to HAMAS. (1) While the case was pending, state agents twice searched the defendant's house seizing documents relating to the case and preparation for trial. Motion to dismiss based on seizure of materials within the attorney client privilege is premature since documents precise location is uncertain, as is the prosecutor's access to privileged information. (2) Reversed for failure to grant a continuance to locate these trial preparation materials. Even if the raids were the result of continued illegal activity, agents did not have the right to seize constitutionally privileged materials. Defense counsel were not require to accept offer of return as they would then have been subject to claims "they phonied up the contents" during a hearing on the motion to dismiss. (3) Except for one count, the poorly drafted indictment was barely sufficient. "It is also clear that George's trial counsel did not need any help getting confused." Failure to identify specific gambling house premises rendered one count insufficient. (4) 25-year sentence probably would not pass appellate review. Failure to permit continuance to rebut HAMAS claim was reversible error. (5) Gratuitous comments by defense counsel and the trial court's lack of patience made the case unnecessarily difficult.
State v. V.F.W. Post 431, Montgomery App. No. 19892, 2004-Ohio-3566 -- (1) Post failed to establish the affirmative defense that it received an IRS determination letter, the proceeds were appropriately donated, and the scheme of chance wasn't conducted with ten hours of a bingo game conducted for amusement purposes. (2) No contest plea waived the right to present an affirmative defense. (3) R.C. 2915.01 et. seq. are not rendered vague by incorporating reference to the Internal Revenue Code, nor is such reference an improper delegation of the state's legislative power. (4) Differential treatment of different sorts of charitable institutions does not violate the Equal Protection Clause, nor does it violate separation of church and state or freedom of association. (5) Lawful entry to premises was made by member law enforcement officer who obtained information leading to issuance of a warrant.
Garono v. State (1988), 37 Ohio St. 3d 171 -- The General Assembly appropriately determined poker, and thus poker machines, to be a game of chance under R.C. 2915.01(D), even though an element of skill may be involved. Also see Stillmaker v. Department of Liquor Control (1969), 18 Ohio St. 2d 200 discussing pinball machines combining amusement and chance. (2) In order for possession of a gambling device to be illegal, it must be used or intended for use in an illegal manner. Possession per se is not illegal.
State v. Volpe (1988), 38 Ohio St. 3d 191 -- Paragraph two of the syllabus: "Because R.C. 2915.02(A)(5) clearly was enacted to reach criminal possession and control of a gambling device and such conduct is classified as a misdemeanor of the first degree under R.C. 2915.01(F), R.C. 2923.24, a general statute prohibiting possession and control of criminal tools and classifying such conduct as a fourth degree felony, cannot be used to charge and convict a person for possession and control of a gambling device."
State v. Posey (1988), 40 Ohio St. 3d 420 -- Paragraph one of the syllabus: "A nonprofit organization may be convicted of gambling for profit under R.C. 2915.02. Also see State v. Stow Veterans Association (1987), 35 Ohio App. 3d 45.
State v. Wac (1981), 68 Ohio St. 2d 84 -- Strict liability applies to the offenses of operating a gambling house and bookmaking.
Lorain v. Tomasic (1979), 59 Ohio St. 2d 1 -- If the payout in a bingo game is lawful under a generally applicable statute, the statute prevails over a more restrictive municipal ordinance making a payout over a lesser ceiling unlawful.
State, ex rel Gabalac, c. New Universal Congregation of Living Souls (1977), 55 Ohio App. 2d 96 -- While the Ohio Constitution bans lotteries, other that the state lottery, gambling is a broader term, permitting the legislature to allow certain forms of gambling.
State v. Fuchs (1993), 92 Ohio App. 3d 15 -- Bar owner sold game of chance tickets ("tip tickets"), forwarded all proceeds to charitable foundation, and received 25% of proceeds as "rent." Properly held to be a violation of R.C. 2915.03(A)(1) which is a strict liability offense. The 25% was in substance a commission and not reimbursement for a reasonable expense. Also see Robb v. Ohio Department of Liquor Control (1994), 95 Ohio App. 3d 379.
State v. Horan (1993), 92 Ohio App. 3d 78 -- (1) Bar owner was prosecuted for recklessly allowing premises to be used for gambling. In view of investigation undertaken before she agreed to sell "tip tickets," the evidence was insufficient to establish that she acted recklessly. (2) Employee who made actual sale of tip tickets, but who had no control over whether the tavern sold tickets, and who did not benefit from the sale, could not be convicted of operating a gambling house pursuant to R.C. 2915.03(A)(1).
State v. Brown (1996), 116 Ohio App. 3d 389 -- (1) Extra playing time on video slot machine constituted something of value for purposes of operating a gambling house conviction. (2) Mere possession of inoperable video slot machine does not support conviction.
State v. Baker (1993), 87 Ohio App. 3d 186 -- The testimony of a single officer may establish consent for entry to premises, unless discounted as unbelievable by the court. Case remanded for a hearing on whether state should disclose identity of the VFW member who admitted officer to the premises where gambling was taking place. Issue was whether case fell under State v. Posey (1988), 40 Ohio St. 3d 420 where voluntary consent was found or State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141 where deception was used to gain entry.
State v. Rich (1993), 87 Ohio App. 3d 194 -- Predicate offenses alleged in a RICO indictment were misdemeanor gambling violations under Ohio law, but the prosecution claimed they could be used as the basis for a racketeering prosecution as the same acts would have constituted felonies under federal law. Indictment was properly dismissed as the violation must be a felony under Ohio law, looking to the substance of the offense and not merely the penalty applicable under federal law.
State v. Argea (1989), 60 Ohio Misc. 2d 11 -- Headnote: "Money in the pockets of persons who are either playing poker or are in the proximity of a poker game may not be confiscated by the state and forfeited pursuant to R.C. 2933.41(C) unless the state proves by a preponderance of the evidence (1) that the money was being used in the commission of an offense, or (2) that the nature of the money or the circumstances of any of the defendants were such as to conclude that possession of the money was illegal."

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